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Lapinski v. Colvin

United States District Court, M.D. Pennsylvania

September 24, 2014

MARK A. LAPINSKI, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM TO DENY PLAINTIFF'S APPEAL Docs. 11, 21, 23, 24

GERALD B. COHN, Magistrate Judge.

I. Procedural History

On July 26, 2006, Mark A. Lapinski ("Plaintiff") filed a Title XVI application for Supplemental Security Income ("SSI"). (Tr. 67).

On April 17, 2008, an Administrative Law Judge ("ALJ") issued a decision finding that Plaintiff was not entitled to SSI. (Tr. 10-23). Plaintiff appealed this decision. On October 13, 2010, the Honorable Judge William J. Nealon adopted the Magistrate Judge's Report and Recommendation to remand for a determination of Plaintiff's credibility. (Tr. 212).

On March 24, 2011, a second hearing was held before the ALJ, where Plaintiff appeared with counsel and testified, as did a vocational expert (Tr. 177-92). On June 20, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to SSI because Plaintiff could perform sedentary work with the ability to alternate between sitting and standing/walking (Tr. 244). On September 20, 2012 the Appeals Council again denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner.

On November 20, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 1383(c)(3), to appeal the decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On February 1, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 10, 11. In May and July 2013, the parties filed briefs in support. Docs. 21, 23, 24. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 28, 2014, the parties consented to Magistrate Judge jurisdiction, and Plaintiff notified the Court that the matter is ready for review. Docs. 27, 28.

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 was 43 years old at the time of the ALJ's decision (Tr. 95, 250). He has a high school education (Tr. 104, 249). Plaintiff has past relevant work experience as a window installer (Tr. 101, 249), which the vocational expert described as medium to heavy exertional work (Tr. 46).

B. Relevant Medical Evidence

The relevant time period is from July 26, 2006 (Tr. 67), Plaintiff's application filing date, through June 20, 2011, the date of the ALJ's decision (Tr. 250).

1. Treating Physician Mark Cruciani, M.D.

During the relevant period, from August 2006 through December 2010, Dr. Cruciani, a rheumatologist, treated Plaintiff for his impairments. He prescribed medication for Plaintiff's psoriatic arthritis[1] and chronic pain syndrome. Dr. Cruciani generally reported that Plaintiff's medications reduced his pain (Tr. 127, 147, 307, 309, 311-14, 324), and that Plaintiff was able to carry out his activities of daily living (Tr. 307-13). He also noted that medication controlled Plaintiff's skin condition (Tr. 311-12). Dr. Cruciani also generally reported that Plaintiff was neurologically intact (Tr. 308-15) and retained full muscle strength (Tr. 308, 311, 313). Despite Plaintiff's positive response to treatment and relatively normal clinical examinations, Dr. Cruciani opined in his treatment notes that it would be difficult for Plaintiff to maintain gainful employment (Tr. 307, 317).

Prior to hearing, the Plaintiff submitted progress notes from Dr. Mark Cruciani, his treating rheumatologist covering the period February 8, 2008 to December 15, 2010. (Tr. 307-318). In those progress notes, Dr. Cruciani identifies Plaintiff's prior medical history as significant for psoriatic arthritis, chronic pain syndrome, OA of multiple sites, degenerative disc disease and fibromyalgia and on multiple reports noted "psoriatic lesions" and on December 15, 2010 (3 months prior to hearing) characterized his observation as "severe psoriatic lesions." (Tr. 307).

2. Consultative Examiner Paul Horchos, D.O.

On December 5, 2006, Paul Horchos, D.O., consultatively examined Plaintiff (Tr. 132-39). Plaintiff claimed that he was unable to work due to pain in his knees, back, shoulders, and hands (Tr. 132). He claimed that these problems stemmed from a motorcycle accident in 1991 (Tr. 132). Dr. Horchos concluded that Plaintiff's medical complaints were more related to his psoriatic arthritis (Tr. 132). Upon examination, Dr. Horchos reported that Plaintiff had an "essentially full" cervical range of motion and adequate forward flexion and extension, a normal elbow range of motion, and adequate muscle bulk (Tr. 134). His grip strength was fair and he could make a fist with his hands, though he had some arthritic changes (Tr. 134). Plaintiff's lumbar range of motion was somewhat impaired, but this was "probably as a self-limited phenomena" (Tr. 134). His lumbar paraspinal musculature revealed minimal spasm on the right side, but no significant loss of range of motion (Tr. 134). Plaintiff's knees showed some crepitance with movement, but it did not appear that his knees were unstable and his leg strength was adequate (Tr. 134). He walked with a smooth and relatively non-antalgic gait, and could heel and toe walk adequately well (Tr. 134).

After examining Plaintiff, Dr. Horchos opined that Plaintiff could occasionally lift and carry up to ten pounds, stand and walk up to four hours in an eight-hour day, had no limitations in sitting, had limitations in reaching, handling, and fingering, and could occasionally perform postural activities (Tr. 136-37). He opined that Plaintiff's psoriatic arthritis did not impair his ability to perform his activities of daily living, but may impair his ability to perform prolonged heavy-type labor (Tr. 134). Dr. Horchos also opined that Plaintiff's psoriatic arthritis would impair his ability to perform heavy-duty labor, but he should have an adequate ability to perform some lighter tasks with his hands even repetitively (Tr. 135). He further opined that Plaintiff's medication regime did not affect his sensorium to the point that it would be difficult for him to function from a cognitive standpoint (Tr. 135).

3. Michael Jalowiec, D.O.

On August 4, 2007, an MRI of Plaintiff's knees showed a progression of degenerative changes with a small tear in the posterior horn of the medial meniscus with communication to the inferior articular surface, joint effusion and fluid in the prepatellar and suprapatellar bursa, and a degenerative signal in the proximal tibia and narrowing of the medial compartment of the knee with thinning of the articular cartilage (Tr. 142-43).

4. Joseph Lombardo, M.D.

On January 22, 2008, a follow-up MRI of Plaintiff's right knee showed progression of degenerative changes with new edematous change within the medical aspect of the proximal tibia and medial femoral condyle, stable tearing of the posterior horn and medial meniscus with a newly described inner margin tear of the body of the medial meniscus, a strain of the lateral collateral ligament and lateral patella retinaculum, stable outward bowing of the medial collateral ligament with extrusion of the body of the medical meniscus, and moderate to large joint effusion (Tr. 144).

C. Plaintiff's Hearing Testimony

At the first hearing in March 2008, Plaintiff testified that he lived with his girlfriend and shared the household chores with her (Tr. 31). He testified that he went for walks and went shopping (Tr. 31). Plaintiff testified that he could lift his legs about 75 to 90 degrees from a seated position; extend his arms and bring them back and reach overheard; and stand about 20 minutes before having to sit or walk (Tr. 33-34). He testified that his doctors were not recommending surgery at this time (Tr. 30). Plaintiff testified that his Enbrel medication was "fantastic" (Tr. 39), though he was not currently taking it due to insurance problems (Tr. 35). He also testified that his other medications worked "very well" (Tr. 40).

At the second hearing, in March 2011, Plaintiff testified that he met with Dr. Cruciani every three months for medication refills (Tr. 284). He testified that his pain medications were "very effective" (Tr. 182). Plaintiff testified that the cream and skin gel also "work well" (Tr. 182). He testified that he exercised "as much as possible" and read books and magazines (Tr. 183).

D. The ALJ's Decision

The ALJ proceeded through each step of the sequential evaluation process and found Plaintiff not disabled. The ALJ determined that Plaintiff had the following severe impairments: fibromyalgia, psoriasis, psoriatic arthritis, degenerative joint disease of the bilateral knees, and degenerative disc disease of the lumbar spine (Tr. 242). The ALJ found, however, that these impairments were not of listing-level severity (Tr. 244). After considering the entire record, the ALJ then found that Plaintiff could perform sedentary work with the ability to alternate between sitting and standing/walking (Tr. 244). The ALJ also found that Plaintiff had a limitation in bilateral overhead reaching, and could do no more than occasional climbing, balancing, and stooping, and must avoid kneeling, crouching, crawling, and climbing of ladders, temperature extremes, humidity, vibrations, and hazards (Tr. 244). The ALJ additionally limited Plaintiff to simple, routine tasks and low stress (defined as only occasional decision-making and occasional changes in the work setting) (Tr. 244).

At the administrative hearing, the ALJ asked a vocational expert whether someone with Plaintiff's vocational profile could perform his past work or other work in the national economy (Tr. 249). The vocational expert testified that this hypothetical individual could not perform Plaintiff's past relevant work, but could perform a significant number of jobs in the economy, including the representative occupations of protective service worker, interviewer, and receptionist/information clerk (Tr. 249-50). Based on the vocational expert's testimony, the ALJ found that Plaintiff could not perform his past relevant work, but could perform a significant number of jobs in the national economy (Tr. 249-50). Therefore, the ALJ found that Plaintiff was not disabled under the Act (Tr. 250).

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. ALJ Development of the Record

Plaintiff first argues the ALJ erred by failing to develop the record following remand from the District Court. Pl. Br. at 7-11, Doc. 21.

Plaintiff states at the remand hearing on March 24, 2011 the ALJ made the following statements/questions:

"ALJ: You know, specifically, were we are (INAUDIBLE) to the issue of credibility and I only have a few questions for you and then your counsel may have some questions for you. Then I m going to have some questions for the vocational expert. Again, your counsel may have some questions for her. If you don't here either of us, or don't here the question, let us know, okay." (Tr. 181).

"EXAMINATION OF CLAIMANT BY ADMINISTRATIVE LAW JUDGE:

Q From the date of the last hearing to present, have you worked at all?

Q And how often do you see Dr. [Cruciani]?

Q And what medications are you currently taking?

Q And is Dr. Krishiani still prescribing Xanax?

Q Are you getting any psychological care or counseling?

Q How effective have the MS Contin, Endocet, Neurontin, been for you?

Q How effective has the Xanax been?

Q And how about the cream and the gel?

Q Okay, do these medications cause you any side effects?

Q Okay. And other than medications, there anything you try to do to either to reduce ...


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