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Kutzer v. Colvin

United States District Court, Middle District of Pennsylvania

September 26, 2014

DAVID KUTZER, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

MEMORANDUM

YVETTE KANE, UNITED STATES DISTRICT JUDGE

Background

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff David Kutzer’s claim for social security disability insurance benefits and supplemental security income benefits.

Disability insurance benefits are paid to an individual if that individual is disabled and “insured, ” that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the “date last insured.” It is undisputed that Kutzer met the insured status requirements of the Social Security Act through December 31, 2013. Tr. 37, 81-82, 144 and 208.[1]

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

On June 14, 2010, Kutzer protectively filed[2] his applications for disability insurance benefits and supplemental security income benefits. Tr. 37, 74-75, 80, 126-135 and 137-144. On February 4, 2011, the applications were initially denied by the Bureau of Disability Determination.[3] Tr. 80 and 95-103. On April 7, 2011, Kutzer requested a hearing before an administrative law judge. Tr. 80 and 105. After about 9 months had passed, a hearing was held on January 5, 2012. Tr. 35-73. Kutzer was represented by counsel at the hearing. Id. On January 30, 2012, the administrative law judge issued a decision denying Kutzer’s applications. Tr. 80-90. As will be explained in more detail infra the administrative law judge found that Kutzer had the capacity to perform work at all physical exertional levels but with several nonexertional limitations and found that Kutzer could perform prior relevant employment as a packer and also in the alternative identified three additional positions that Kutzer could perform: a groundskeeper, a picker/packer/sorter and an inspector of small products. Tr. 69-71, 84 and 90. The vocational expert described all of these positions as unskilled work. Tr. 71. He also identified the exertional level of the groundskeeper position as medium duty, the picker/packer/sorter as light duty, and the inspector of small products as sedentary duty.[4] Tr. 71. On March 19, 2012, Kutzer filed a request for review with the Appeals Council and after over 14 months had elapsed the Appeals Council on May 31, 2013, concluded that there was no basis upon which to grant Kutzer’s request for review. Tr. 1-5 and 15-16. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Kutzer then filed a complaint in this court on June 26, 2013. Supporting and opposing briefs were submitted and the appeal[5] became ripe for disposition on December 30, 2013, when Kutzer filed a reply brief.

Kutzer was born in the United States on December 14, 1970, and at all times relevant to this matter was considered a “younger individual”[6] whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and 416.963(c). Tr. 47 and 137.

Although Kutzer attended special education classes because of dyslexia, he graduated from high school in 1989 and can read, write, speak and understand the English language and perform basic mathematical functions such as counting change. Tr. 44-46, 178 and 268. After graduating from high school, Kutzer did not complete “any type of special job training, trade or vocational school.” Tr. 189. Kutzer has an extensive history of drug and alcohol abuse including at times when he was employed. Tr. 47-49. The record reveals that Kutzer has three convictions for driving under the influence and has used marijuana, cocaine, crack, heroin, LSD, mushrooms, and ecstasy. Tr. 47-49 and 265. The DUI convictions occurred in 1993, 1998 and 2004. Tr. 264. He also had a parole violation relating to the 2004 DUI conviction. Id. At the administrative hearing on January 5, 2012, Kutzer initially testified that he had not used drugs for 10 to 11 years but subsequently upon questioning by the administrative law judge admitted that he had used cocaine in 2006. Tr. 49. The record also reveals that he used marijuana in June 2008. Tr. 302.

Kutzer’s work history covers 24 years and at least 8 different employers. Tr. 145, 153-155 and 193. The records of the Social Security Administration reveal that Kutzer had earnings in the years 1987 through 2010. Tr. 145. Kutzer’s annual earnings range from a low of $781.32 in 2010 to a high of $28, 979.90 in 2003. Id. Kutzer’s total earnings during those 24 years were $203, 161.60. Id.

In documents filed with the Social Security Administration Kutzer reported that he worked as a bus cleaner from November, 1993 to November 1995 (8 hours per day, 5 days per week); as a machine operator from January, 1996, to May, 1998 (8 hours per day, 5 days per week); as a laborer assembling cabinets from April, 1998, to March, 2004 (8 hours per day, 5 days per week); as an assembler at a truck manufacturing plant from January, 2006 to April, 2006 (10 hours per day, 4 days per week); and as a laborer/assembler at a manufacturer of bay doors from June, 2006 to September, 2007 (8 hours per day, 5 days per week). Tr. 193-198. Kutzer further reported that he worked from October 2, 2007, to February 15, 2008, as a packer at a warehouse (6 hours per day 5 days per week)and from July 7, 2009 to October 4, 2009, as a packer/machine operator at a factory that made cups (8 hours per day, 5 days per week). Tr. 180, 193 and 212. He also reported that from October, 2009 to November, 2009, he worked as an assembler for a window company and during September, 2010, as a packer at a book company both positions having been obtained through a temporary employment agency. Tr. 193.

Kutzer has past relevant employment[7] as (1) a packer which was described by a vocational expert as unskilled, medium work; (2) an assembler of trucks which was described as unskilled, medium work, (3) a laborer in the sheet metal industry described as semi-skilled, medium work as generally performed in the economy and heavy work as actually performed by Kutzer; (4) a laborer for a cabinet manufacturer described as unskilled, medium work; and (5) a machine operator described as semi-skilled, medium work. Tr. 67. Kutzer’s last three positions were combined by the vocational expert into one and described as the unskilled, medium work as a packer. Tr. 67.

Kutzer initially claimed that he became disabled on September 2, 2007, because of anxiety, depression and anger problems. Tr. 135, 137 and 179. On that date he lost his job “because of anger problems/anxiety.” Tr. 174. At the administrative hearing Kutzer alleged that he suffered from generalized anxiety disorder with panic attacks and agoraphobia, [8] bipolar disorder and a learning disorder. Tr. 40. Kutzer did not allege that he suffered from any physical impairments which would prevent him from engaging in substantial gainful employment. Tr. 42. Kutzer at the administrative hearing also amended his alleged disability onset date to March 1, 2010. Tr. 72 and 80. Kutzer’s father died of cancer on February 25, 2010, and he claims that his mental condition deteriorated on March 1, 2010, as a result of that death. Tr. 49, 72 and 88. Up until his father’s death, Kutzer was caring for his father including giving him his medicine, bathing him and taking him to the bathroom. Tr. 50. At the time of his father’s death Kutzer was working for Jacobson Staffing Company, LC, and he quit that position on February, 28, 2010.[9] Tr. 50, 156, 174 and 179.

Although Kutzer has not engaged in any employment since February, 2010, he attempted to obtain employment as well as applied for and received unemployment compensation benefits. Tr. 51-52. Kutzer testified at the administrative hearing that when he applied for unemployment compensation he certified that he was “ready, willing and able to work” but that when he made that statement he was “[n]ot really” able to engage in work.[10] Tr. 52.

As of the date of the administrative hearing, Kutzer had lived by himself for six years. Tr. 43. Kutzer was able to perform his own cooking, cleaning, laundry and shopping. Tr. 44. On a typical day, he would do housework and run errands. Tr. 185. Kutzer was able to perform yard work, including mowing grass and trimming shrubs. Tr. 64. Kutzer spent at least three hours outside each day. Tr. 188. Kutzer was able to drive, and typically drove to the grocery store and medical appointments. Tr. 47. Kutzer shopped in stores for clothing, personal products and food. Tr. 188. Kutzer had no problem with personal care and was able to prepare his own meals. Tr. 186-187. Kutzer took care of a cat, including providing the cat with food and water and cleaning the litter box. Tr. 186.

Kutzer’s mother provided a letter to his attorney which was then submitted to the administrative law judge at the administrative hearing. In the letter Kutzer’s mother reports on Kutzer’s difficulties while attending school, including suffering from dyslexia. Tr. 220-221. She also reports in the letter on his difficulty holding jobs. Id. There is no indication in the letter that Mrs. Kutzer had first-hand knowledge of these difficulties. Instead the manner in which the letter is drafted suggests that the information she reports in the letter was based on conversations she had with her son. Mrs. Kutzer did not testify at the administrative hearing.

Paula Yellard, a friend of Kutzer since 2000, also provided a letter outlining Kutzer’s mental difficulties. Tr. 218-219. She reported Kutzer’s tendency to “shy away from outings or having to be around the public.” Tr. 218. She stated that he would become depressed and “easily lose his temper;” and she helps Kutzer with his phone calls and filling out paperwork and “explains his mail or bills to him[.]” Tr. 218-219. She noted that he gets frustrated easily, has a hard time concentrating, following directions and completing tasks and “often forgets things[.]” Tr. 219.

Neither Kutzer’s mother nor Ms. Yellard mentioned Kutzer’s significant history of drug and alcohol abuse.

For the reasons set forth below we will affirm the Commissioner.

Standard of Review

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.”); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence.”); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

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, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record, " Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

Sequential Evaluation Process

To receive disability benefits, the 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. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such 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. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity, [11] (2) has an impairment that is severe or a combination of impairments that is severe, [12] (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, [13] (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant’s residual functional capacity. Id.[14]

Residual functional capacity is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual’s abilities. Id; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 (“‘Residual ...


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