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Keck v. Colvin

United States District Court, M.D. Pennsylvania

September 24, 2014

LEROY KECK, JR., Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF Docs. 9, 12, 13, 15 SOCIAL SECURITY, Defendant.

MEMORANDUM TO DENY PLAINTIFF'S APPEAL

GERALD B. COHN, Magistrate Judge.

I. Procedural History

On April 13, 2010 and April 16, 2010, Leroy Keck, Jr. ("Plaintiff") protectively filed an application for Title II Social Security Disability Insurance Benefits ("DIB"), and also protectively filed a Title XVI application for Supplemental Security Income ("SSI"), with an onset date of November 21, 2008. (Tr. 66, 68, 150, 190-91).

This application was denied, and on July 20, 2011, a hearing was held before an Administrative Law Judge ("ALJ"), where Plaintiff appeared with counsel and testified, as did a vocational expert (Tr. 30-62). On September 24, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to DIB or SSI because Plaintiff could perform a range of range of simple, sedentary work with limited interpersonal interactions (Tr. 17). On September 28, 2012, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1).

On November 2, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3), to appeal the decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On December 20, 2012, Commissioner filed an answer and administrative transcript of proceedings. Docs. 8, 9. In March and April 2013, the parties filed briefs in support. Docs. 12, 13. On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 13, 2014, the Court issued an order providing Plaintiff the opportunity to file a reply brief and notifying the parties of the option to consent to Magistrate Judge jurisdiction. Doc. 14. On May 21, 2014, the parties consented to Magistrate Judge jurisdiction, and Plaintiff filed a reply brief in accordance with the Court's order. Docs. 15, 16.

II. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360. (3d Cir. 1999); Johnson , 529 F.3d at 200. This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

To receive disability or supplemental security benefits, Plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A).

Moreover, the Act requires further that a claimant for disability benefits must show that he has a physical or mental impairment of such a severity that: "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

III. Relevant Facts in the Record

A. Background

Plaintiff is a forty year old male who was thirty-five years old at the time of the application, which is classified as a younger individual (20 C.F.R. §§ 404.1563, 416.963) (Tr. 150, 157, 190-91). Plaintiff dropped out of school in the ninth grade (Tr. 36). Plaintiff had special education classes when he was in school (Tr. 47). Plaintiff had past relevant work as a heavy equipment operator, classified as heavy and semi-skilled with skills transferable to medium work only (Tr. 59). Plaintiff worked for many years in the construction industry, most recently in semi-skilled work operating heavy equipment (Tr. 36, 59, 181, 185-86).

Plaintiff had two children, each of whom lived with their respective mothers (Tr. 36, 46). He had not seen his 18 year-old son in a decade and visited his 10 year-old daughter only "once in a great blue moon" (Tr. 46). It appears that he had been paying child support for both children until he left his job in 2008 (Tr. 164, 167). Since then, his stated source of income was his long-term girlfriend - who was herself on disability (Tr. 315) - and his mother (Tr. 37, 47).

Plaintiff claimed that his knee and back pain was so extreme that his girlfriend (who was herself disabled) allegedly not only helped dress him but even had to help him use the toilet (Tr. 237). However, there is no record at any doctor's visits of statements of these limitations. When Plaintiff applied for disability benefits, he had not seen a doctor for any physical complaints in more than two years (Tr. 352, 366). He also admitted that he used no pain medications (Tr. 228).

Plaintiff testified at the time of the hearing he weighed 392 pounds and had gained some 75-100 pounds since he was working (Tr. 47).

The Administrative Law Judge found severe impairments of bilateral degenerative joint disease, morbid obesity, major depressive disorder (Tr. 14). The Administrative Law Judge found that the Plaintiff's low back pain and mild mental retardation were not medically determinable impairments (Tr. 15).

B. Relevant Medical Evidence

1. Medical Evidence Related to Plaintiff's Physical Impairments

The primary physical problem Plaintiff identified was arthritis pain in the knees that, he testified, felt like "someone beating [his] kneecaps with a baseball bat" (Tr. 39).

The agency initially arranged for a consultative examination with Jessica Ward, D.O (Tr. 319-29). This early report accepted most of Plaintiff's subjective complaints, recommended an assessment by a psychologist, and found some extreme limitations (including "never" performing any postural maneuvers) (Tr. 326) that the ALJ found inconsistent with the record (Tr. 19).

In June 2010, a year and a half after Plaintiff's alleged disability onset date, he first appeared for a medical appointment with primary care physician Kendra Davis, D.O. (Tr. 150, 399). Plaintiff reported arthritis in his knees and back for which he used only Tylenol (Tr. 399). Thoracic and lumbar mobility were decreased, with spinal and knee tenderness and "moderate" pain with motion of the knees (Tr. 401). X-rays of the cervical spine were negative (Tr. 329).

Follow-up treatment with Dr. Davis showed diabetes without complication (Tr. 397). Plaintiff also initiated treatment with orthopedic specialists in August 2010 (Tr. 380). He was taking Naprosyn (a non-steroidal anti-inflammatory) and Vicodin (a narcotic) (Tr. 380). Plaintiff was overweight and displayed some breakaway weakness in the lower extremities, but his motor examination was close to normal limits, and sensory function was grossly intact (Tr. 380). Despite being exquisitely sensitive to palpation of the knees, he exhibited nearly normal range of motion (Tr. 381). X-rays showed "no signs of arthritis" (Tr. 381). Only "mild" degenerative changes were apparent (Tr. 381). The orthopedist did not "see anything intrinsically wrong with [Plaintiff's] knees" (Tr. 381).

Follow-up orthopedic notes later that month show Plaintiff ambulating with a cane and continuing to react to palpation of the knees (Tr. 379). Again, however, no orthopedic cause for his pain was identified (Tr. 379).

Plaintiff also complained of back pain, which he described at the hearing as feeling like a "locomotive just ran over me" (Tr. 51), but lumbar MRI films were essentially normal: they showed no degenerative disease and no evidence of herniated disks (Tr. 379).

Plaintiff complained again of knee pain in July 2011 (Tr. 421). His treating orthopedist explained that Plaintiff's pain was "out of proportion" to objective findings and could only be ascribed to possible undiagnosed non-orthopedic causes (like regional pain syndrome) (Tr. 422). Anterior ligament examination also caused "pain out of proportion" (Tr. 421). X-rays, "quite surprisingly, " showed few arthritic changes and no acute abnormalities (Tr. 421).

2. Medical Evidence Related to Plaintiff's Mental Health

A. Plaintiff's Depression

Plaintiff had never seen a psychiatrist or counselor for his alleged depression until he was incarcerated in November 2009 (Tr. 307). At that time, Plaintiff initiated treatment with Celexa, an antidepressant (Tr. 307). Within weeks, Plaintiff's mood was "euthymic" (Tr. 306). His mental status was entirely normal (Tr. 306). But he discontinued his medication after leaving incarceration (Tr. 314).

Plaintiff waited eight months before resuming mental health treatment. In May 2010, outpatient psychiatrist Sylvester De La Cruz, M.D., found Plaintiff to be depressed, with a global assessment of functioning (GAF) score of 50-55 (Tr. 311, 316). He prescribed Lexapro (Tr. 316). Even though Plaintiff had only reinitiated treatment that day, Dr. De La Cruz immediately completed a Pennsylvania Department of Welfare form asserting that Plaintiff would be temporarily disabled for 12 months or more (Tr. 311). But Plaintiff improved rapidly thereafter, as he personally acknowledged (Tr. 233). Follow-up office notes from Dr. De La Cruz likewise confirm, month after month, that Plaintiff's mental status was virtually or entirely normal, with a fair or even euthymic mood (Tr. 373-78, 418-19).

In the winter of 2011, Plaintiff reported that "life [was] going well" (Tr. 378). He declared that he "no longer need[ed] to continue his individual counseling" (Tr. 418). Treatment notes confirm that his depression was "in remission" (Tr. 378).

B. Allegations of Bipolar Disorder

Plaintiff alleged he was bipolar (Tr. 41, 189, 224), but this was rejected by Dr. De La Cruz because Plaintiff had never experienced manic symptoms or episodes of elation, euphoria, or grandiosity (Tr. 314, 316, 375).

Nonetheless, Plaintiff apparently communicated thereafter to his primary care physician, Dr. Davis, that he was bipolar and that his mood was not controlled (Tr. 404, 409). Not only did Dr. De La Cruz's records show otherwise, but Dr. Davis' own treatment notes also documented "no unusual anxiety or evidence of depression" (Tr. 388, 406, 410). Nonetheless, Dr. Davis offered an opinion that Plaintiff was totally disabled from, among other things, a mood disorder and "possible bipolar disorder" (Tr. 416).

C. Allegations of Intellectual Disability[1]

Plaintiff noted a history of special education but never alleged disability based on intellectual disability (mental retardation) (Tr. 37, 46, 189).

The night before his disability hearing, Plaintiff's attorney referred him for a psychological evaluation with William D. Thomas, M.S., who performed IQ testing on Plaintiff on July 17, 2011 and found a verbal IQ of 70, a performance IQ of 74 and a full scale IQ of 69 (Tr. 429).

Treating psychiatrist Dr. De La Cruz found Plaintiff's thinking organized, his mathematical skills "good, " and his proverb interpretations abstract (Tr. 315). Dr. De La Cruz described his patient as appearing to have intelligence "within [the] average range" (Tr. 315).

IV. Review of ALJ Decision

A five-step evaluation process is used to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Plummer , 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed any further. See 20 C.F.R. §§ 404.1520, 416.920.

The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that she is unable to engage in past relevant work. If the claimant satisfies this burden, then the Commissioner must show that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

A. Plaintiff Allegations of Error

1. Intellectual Disability Severe/Listed Impairment

Plaintiff contends the ALJ failed to classify intellectual disability (mental retardation) as a "severe" impairment. Pl. Br. at 5, 8-10, Doc. 12. Plaintiff also contends Plaintiff meets the requirements of listing 12.05 (Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22... [and] (C.) A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function OR (D.) A valid verbal, performance, or full scale IQ of 60 through 70, resulting in two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social ...


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