United States District Court, M.D. Pennsylvania
CHARLES E. BECK, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL Docs. 1, 8, 9, 10, 13, 14
GERALD B. COHN, Magistrate Judge.
REPORT AND RECOMMENDATION
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Charles E. Beck Jr. for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). As an initial matter, Plaintiff failed to comply with a Court order dated November 14, 2014 to notify the Court if the matter was fully briefed and ready for review. Doc. 14. That order stated "PLAINTIFF'S FAILURE TO RESPOND TO THIS ORDER WILL RESULT IN A RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO LR 83.3.1." Id. Thus, the Court recommends dismissing Plaintiff's appeal for failure to prosecute in accordance with its November 14, 2014 order and Local Rule 83.3.1.
The Court also recommends denial upon review of the merits of the case. Plaintiff asserts that he is disabled from a combination of physical and mental impairments, that his impairments meet a Listing, and that the administrative law judge ("ALJ") erred in assessing his residual functional capacity ("RFC"). With regard to mental impairments, Plaintiff has never been treated by a mental health professional, and the only mental status examination in the record is from a consultative examiner who concluded that Plaintiff did not meet any mental impairment Listing and had only slight or moderate nonexertional mental limitations. Thus, the ALJ had substantial evidence to conclude that Plaintiff did not meet a mental impairment Listing. The ALJ discounted claims of mental limitation on the ground that they were based on non-credible subjective complaints by the Plaintiff. Plaintiff did not challenge this finding. Moreover, any error in failing to assess those limitations is harmless, because the vocational examiner ("VE") identified jobs that Plaintiff could perform that did not require him to make judgments on the job or deal with work changes. Finally, Plaintiff fails to develop his argument regarding residual functional capacity ("RFC") beyond a conclusory, generic challenge, which waives the argument.
With regard to physical impairments, Plaintiff contends that he is disabled because abnormalities in his spine cause pain and limited motion in his spine along with numbness and tingling in his fingers. He asserts that he meets Listing 1.04A, but never alleges or establishes muscle weakness accompanied by sensory or reflex loss, which is required for Listing 1.04A. He asserts that he meets "Listing 11.00(C), " but Section 11.00(C) is not an independent Listing; it is an explanatory definition for a term used in various Listings. Regardless, Section 11.00(C) requires "paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances." Plaintiff has never alleged that he has any of these characteristics, and at every physical exam, his sensation was normal.
Plaintiff generically challenges the ALJ's physical RFC, but does not develop his argument. Even if he had, substantial evidence supports the ALJ's physical RFC. The only evidence of the intensity, frequency, and limiting effects of Plaintiff's symptoms is his subjective testimony, and the ALJ properly found Plaintiff to be not credible. With regard to numbness and tingling in his fingers, the ALJ noted that Plaintiff continued to drive, hunt, and fish and that his treating physician opined that there was no evidence of any radiculopathy. The ALJ generally found that Plaintiff made inconsistent claims throughout the record, Plaintiff's treating physicians opined that he could work at heavy exertional levels, and Plaintiff was not treated for his impairments at all between April of 2009 and August of 2010, despite alleging disability beginning in January of 2009. These are proper bases to discount Plaintiff's credibility regarding his symptoms, and Plaintiff has not challenged the ALJ's credibility finding. Because the only evidence of Plaintiff's physical RFC limitations was his subjective testimony, and the ALJ properly found that testimony to be not credible, Plaintiff failed put forward any credible evidence establishing his limitations. As a result, substantial evidence supports the ALJ's physical RFC determination. Even if the ALJ had erred in failing to assess additional postural or range of motion limitations, any error would be harmless because the VE identified jobs that never required postural abilities and could be performed even if Plaintiff could only "occasionally" turn his head from side to side. For the foregoing reasons, the Court recommends that Plaintiff's appeal be denied, the decision of the Commissioner be affirmed, and the case closed.
II. Procedural Background
On May 16, 2011, Plaintiff filed an application for SSI under Title XVI of the Act and for DIB under Title II of the Act. (Tr. 104-115). On July 14, 2011, 2010, the Bureau of Disability Determination denied these applications (Tr. 59-68), and Plaintiff filed a request for a hearing on August 18, 2011. (Tr. 71-72). On March 14, 2012, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert ("VE") appeared and testified. (Tr. 30-58). On August 27, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 10-29). On February 13, 2013, Plaintiff filed a request for review with the Appeals Council (Tr. 7-9), which the Appeals Council denied on November 20, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-6).
On January 9, 2014, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On May 13, 2014, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On June 20, 2014, Plaintiff filed a brief in support of his appeal ("Pl. Brief"). (Doc. 10). On August 21, 2014, Defendant filed a brief in response ("Def. Brief"). (Doc. 13). On November 5, 2014, the Court referred this case to the undersigned Magistrate Judge. On November 14, 2014, the Court issued an Order for Plaintiff to notify the Court whether the case was ready for review and stated "PLAINTIFF'S FAILURE TO RESPOND TO THIS ORDER WILL RESULT IN A RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO LR 83.3.1." (Doc. 14). Plaintiff did not respond to this Order.
III. Standard of Review
When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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. NLRB, 305 U.S. 197, 229 (1938)). In other words, substantial evidence is "less than a preponderance" and requires only "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
IV. Sequential Evaluation Process
To receive disability or supplemental security benefits, a claimant 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). The Act requires that a claimant for disability benefits 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).
The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. 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 from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (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 claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five 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 claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
V. Relevant Facts in the Record
Plaintiff was born on April 28, 1967, and was classified as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 35, 76). He has a tenth grade education and past relevant work as a building maintenance manager and a building maintenance supervisor. (Tr. 35, 49-50).
Plaintiff asserts that he became disabled on January 1, 2009. (Tr. 35). On January 21, 2009, Plaintiff presented to the emergency room at Memorial Hospital complaining of chest pain, but he left against medical advice. (Tr. 226). A doctor "tried to reason with [Plaintiff] and he just was not willing to hear anything she had to stay, " so he "ripped out his IV" and he left. (Tr. 226, 229). He reported that "otherwise he has been in normal health" and his exam did not indicate any musculoskeletal problems. (Tr. 235). He had normal strength and his neurologic exam was normal. (Tr. 236, 240). His "tox screen [was] positive for cannabinoids." (Tr. 236). He was assessed to have "chest pain" and "marijuana abuse." (Tr. 237).
On March 2, 2009, Plaintiff was seen at Wheatlyn Family Medicine, his primary care provider, for pain in his left ear. (Tr. 315). In his review of musculoskeletal symptoms, he "denie[d] any problem within category." (Tr. 316). He did not mention back or beck pain and a musculoskeletal exam was not done. (Tr. 317).
On March 9, 2009, Plaintiff saw Dr. Jennifer Bamford, M.D., at Wheatlyn Family Medicine. (Tr. 319). He reported that he "woke up with pain" three days earlier "on his left side and into his left arm." (Tr. 318). He reported that "trigger point injections in the past...helped." (Tr. 318). He reported "no weakness in his arms." (Tr. 318). On exam, Plaintiff was "holding [his] head tilted to the right, " was "very tender over his spasming muscles on the right side of the neck" and had "good range of motion of his right arm." (Tr. 319). He received trigger point injections, "tolerated the procedure well and had increased mobility at the end of the procedure." (Tr. 319). She prescribed him 20 Vicodin 500 m.g. for use every six hours as needed. (Tr. 319). On March 24, 2009, X-rays of Plaintiff's cervical spine showed "[c]ongenital fusion of the C2-3 and diffuse degenerative change of the cervical spine without fracture." (Tr. 341, 416).
On March 30, 2009, Plaintiff was evaluated at Orthopaedic and Spine Specialists ("OSS"). Plaintiff reported that he had neck pain for four weeks. (Tr. 292). He also complained of hip pain and radiating pain in his shoulder and elbow. (Tr. 292). On exam, Plaintiff had limited range of motion, but his strength was "good and equal bilaterally" and his "[n]eurosensation [was] intact." (Tr. 294). X-rays of the cervical spine indicated "slight loss of the normal lordotic curve." (Tr. 294). He was prescribed a Medrol Dosepak and scheduled for an MRI. (Tr. 295). He indicated that he had never had "depression, " "anxiety, " "mental disease, " or "neuropathy, " although he "may be bipolar." (Tr. 296-97).
On April 8, 2009, Plaintiff had an MRI of his cervical spine. (Tr. 312, 342-43). It indicated:
Disc bulges and protrusions combined with uncovertebral process osteophytes at C5-6 and C6-7 level with severe central canal stenosis obliterating the "CSF clef" around the spinal cord, which indicates loss of normal functional reserve of the central canal. Associated spinal cord impingement. Question small are of spinal cord edema, possibly representing mild focal spinal cord compression.
(Tr. 312). It further indicated a "[l]arge right C3-4 uncovertebral process osteophytes/disc extrusion, with severe stenosis of the right lateral recess and right intravertebral neural foramina and associated radicular impingement." (Tr. 312). It indicated a "[p]rominent right C5-6 uncovertebral process osteophytes and subarticular and right foraminal disc extrusion, obliterating the right intravertebral neural foramina with radicular impingement, " and "[s]evere intravertebral neural foraminal stenosis also seen at other levels." (Tr. 312).
On April 14, 2009, Plaintiff was evaluated at OSS. (Tr. 292). His reports of pain were unchanged. (Tr. 292). However, he denied numbness and tingling in the fingers. (Tr. 292). Notes indicate: "Work/Functional Status: the [Plaintiff] is able to ambulate perform activities of daily living without devices. He is unemployed." (Tr. 292). Plaintiff reported that he could handle his personal care, but it was "painful" so he was "slow and careful." (Tr. 300). He reported that "[p]ain prevents [him] from lifting heavy weights, but I can manage light to medium weights if they are conveniently positioned." (Tr. 300). He reported that pain does not prevent him from walking ¼ mile, but that it did prevent him from walking a ½ mile. (Tr. 300). He reported that pain does not prevent him from standing for more than thirty minutes, but did prevent him from standing from more than an hour. (Tr. 301). He reported problems sleeping and, although he denied being restricted to his home, he indicated that he does not go out "as often." (Tr. 301). He reported that his pain was "bad, but [he] can manage journeys over two hours." (Tr. 301). On exam, he had "mild" tenderness, he walked with a "normal gait, " his straight leg raise was "negative bilaterally, " his strength was "5/5" throughout, his neurology exam was normal, his sensation was "intact, " and his reflexes were "intact and symmetric." (Tr. 293). He was prescribed physical therapy, continued on Vicodin, and prescribed Flexeril. (Tr. 293).
On April 23, 2009, Plaintiff presented to the emergency room at Memorial Hospital complaining of chest pain. (Tr. 270). He reported that he "lives with family, smokes marijuana." (Tr. 270). He reported that he had "been stressed a lot because of work-related issues and other social issues." (Tr. 275). He was assessed to have "[a]cute dyspnea, suspect anxiety." (Tr. 276). He denied fatigue. (Tr. 277). His exam did not indicate any musculoskeletal problems, his back was not tender, and his neurology exam was normal. (Tr. 278).
Plaintiff was treated at Wheatlyn Family Medicine in September, November, and December of 2009 and February of 2010 for sinus pressure and cold symptoms. (Tr. 320-26). He never mentioned back or neck pain and no musculoskeletal exam was done. Id. He did not request refills for his Vicodin or Flexeril during this time. (Tr. 320-26).
On August 6, 2010, Plaintiff was evaluated at OSS. (Tr. 290). He reported that his back pain began over the "last day." (Tr. 290). He had tenderness, spasm, and decreased range of motion, but his strength was "good and equal bilaterally, " his neurology exam was normal and his "neurosensation [was] intact, " and his straight leg raise was negative. (Tr. 290). X-rays of the cervical spine indicated "multilevel disc degeneration, what appears to be almost a Klippel-Feil formation of the upper cervical spine, spinal stenosis" and "mild disc space narrowing on a few levels" but "[n]o acute abnormalities." (Tr. 290). He was prescribed a Medrol Dosepak, Flexeril, and Vicodin. (Tr. 291). On August 11, 2010, Plaintiff followed-up at OSS. (Tr. 288). He had tenderness, spasm, decreased range of motion and a slow and antalgic gait, but no "focus motor weakness, " his reflexes were "symmetric and appropriate, " and he did not "have any pain with straight leg raise of his lower extremities." (Tr. 288).
On October 20, 2010, Plaintiff followed-up at Wheatlyn Family Medicine. (Tr. 332, 334). On exam, his neck had full range of motion, and there were no musculoskeletal abnormalities noted. (Tr. 330). He was prescribed an NSAID pain reliever, but never picked it up because he felt that it was too expensive. (Tr. 328, 334). On November 12, 2010, Plaintiff followed-up at Wheatlyn Family Medicine with Dr. Bamford. (Tr. 335). He was having neck pain again, and indicated that he did not want injections because they caused him pain in the past. (Tr. 335). He reported that he was having "flare ups in his neck off and on." (Tr. 333). On exam, he was "[s]omewhat irritable, " he "appear[ed] somewhat uncomfortable with movement, " and had "decreased range of motion with his neck." (Tr. 334). His strength was "normal." (Tr. 334). He was referred to Wellspan Orthopedic for a second opinion and advised to "remain active in the daytime." (Tr. 333). He reported that he could not afford expensive medications. (Tr. 333).
On January 21, 2011, Plaintiff followed-up with Dr. Bamford complaining of congestion and ear pain. (Tr. 388). Plaintiff reported that his chronic back pain prevented him from doing "any physical activity without having repercussions" and that he was "very frustrated." (Tr. 388). On exam, his neck was "supple" and no musculoskeletal abnormalities were noted. (Tr. 390). An X-ray of his cervical spine indicated "no significant change compared to March 24, 2009." (Tr. 350). His medications were renewed. (Tr. 388).
On April 1, 2011, Plaintiff was seen at Wheatlyn Family Medicine. (Tr. 392). He reported swelling in his hand and a large knot for three months, and explained that he had a "briar" in his hand from the previous December. (Tr. 392). The doctor attempted to remove the "lesion" but "nothing came out except blood." (Tr. 354, 392). He was referred to an orthopedist. (Tr. 394). Later that day, Plaintiff saw Dr. David Scarpelli, M.D., at Wellspan Orthopedic. (Tr. 394). Plaintiff reported that he thought something got "stuck in his hand" while "hunting" the previous December. (Tr. 394). Plaintiff reported that he was "exercising regularly" and "denied any problems" in the "musculo-skeletal" and "psychiatric" categories. (Tr. 396). The foreign body was "excised." (Tr. 394).
On April 19, 2011, Plaintiff followed-up with Dr. Bamford. (Tr. 398). He was "having pain in his mid back that radiates around to the front" that was "not better sitting, laying or standing." (Tr. 398). He was scheduled for additional tests, although he was "reluctant to do injections again as it caused him so much pain the first time." (Tr. 398). On exam, he "walk[ed] slowly" and had "difficulty with positional change" and had a positive straight leg raise. (Tr. 399). He had "normal strength" and "normal reflexes." (Tr. 399). X-rays of Plaintiff's cervical spine indicated "no significant change compared to 3/24/2009." (Tr. 400).
On May 3, 2011, X-rays of Plaintiff's thoracic spine showed a "normal thoracic spine" with "no change compared with 3/6/2007." (Tr. 353, 418). On May 19, 2011, Plaintiff had an MRI of the lumbar spine that was "normal" except for "mild degenerative changes, " "mild disc material desiccation, " "mild" narrowing of the neural foramina, " "minimal disc bulge" and "mild facet arthritis" with "no evidence of compression fracture and "[n]o spinal canal stenosis." (Tr. 351-52, 421-22). An MRI of the cervical spine indicated "mild to moderate degenerative disc disease" with "asymmetric disc bulge, " a "prominent uncinate spur, " "moderately to severely narrowed bilateral neural foramina and mild spinal canal stenosis, " a "diffuse disc bulge, " a "prominent complex of disc and bony spur, " and a "fusion of C2-C3 vertebrae." (Tr. 348-49, 423-24). An MRI of the thoracic spine indicated "mild degenerative changes of the thoracic spine with osteoarthritis changes at the vertebrocostal junctions" and "minimal marginal osteophytes, " "minimal disc material desiccation" but "no evidence of spinal canal stenosis or narrowing of the neural foramina identified at the region where the patient has pain" and the "spinal cord appear[ed] normal." (Tr. 345-47, 419-20).
On May 16, 2011, Plaintiff applied for disability and had a face-to-face interview at the state agency. (Tr. 132). The interviewer observed difficulty in "sitting, " "standing, " and "walking, " explaining that he had "obvious issues with back-could not sit for long periods and had to keep adjusting body for comfort." (Tr. 131).
On June 3, 2011, Plaintiff submitted a Function Report. (Tr. 151). He wrote that he "can't sit, walk or stand for long periods of time" and "can't do any lifting, bending, twisting." (Tr. 144). He reported that he cooks meals for his two sons, cares for his fish, and has no problems caring for his hair, shaving, and feeding himself. (Tr. 145). He indicated that his wife helps him care for the children, that he has difficulty sleeping due to pain, and that it is painful for him to dress, bathe, and sometimes use the toilet. (Tr. 145). He wrote that he spends fifteen minutes to an hour preparing meals a few times a week and also does "light household cleaning" and "washes dishes" a few times a week. (Tr. 146). He indicated that his oldest son sometimes had to finish his chores if he was in too much pain. (Tr. 146). He reported that he leaves his house "almost daily, " can drive on his own, and shops in stores "a couple times a month" for "maybe 20 minutes." (Tr. 147). He reported that he goes fishing for "an hour or two" "about twice a month, " goes hunting for "an hour or two" "a few times a year, " goes hiking "a couple times a year, " and grills with his family. (Tr. 148). He indicated problems concentrating, completing tasks, and getting along with others. (Tr. 149). He reported that he needed to use a walking stick "at times" when he was "scouting or hiking." (Tr. 150). He reported that his medications give him side effects and "make [him] sleepy." (Tr. 151). He indicated that he had never attended physical therapy because he "couldn't afford to" and had never been referred to a psychologist or psychiatrist to cope with pain. (Tr. 153).
On June 10, 2011, Plaintiff was evaluated at Wellspan Neurosurgery by Dr. Joel Winer, M.D. (Tr. 357). He reported neck and back pain that was "grinding, stinging, and aching" and "numbness from the 3rd through 5th fingers bilaterally which extends through the triceps." (Tr. 358). He reported trouble sleeping, having fallen "about four times, " pain "radiat[ing] down the sides of his legs into his calves, " and that he was unable to mow his lawn with a self-propelled lawn mower. (Tr. 358). He denied smoking and reported that he was "Exercising Regularly" and using a "home program." (Tr. 358-59). On exam, his sensation and reflexes were "intact, " his gait was "nonantalgic and device free, " and his motor strength was "full" "except for "decreased grip and intrinsic strength bilaterally." (Tr. 361). Dr. Winer ordered an EMG. (Tr. 357).
On June 27, 2011, Plaintiff followed-up at OSS with Dr. K. Nicholas Pandelidis, M.D. (Tr. 373). He "appear[ed] uncomfortable, " had a "somewhat depressed affect, " "decreased" and "uncomfortable" range of motion in his neck, and "some tenderness but no spasm or deformity." (Tr. 372). He had "no focal motor weakness" and his deep tendon reflexes were "symmetric." (Tr. 372). Plaintiff did "not really have any upper extremity radicular complaints" and Dr. Pandelidis observed that "there is no evidence of radiculopathy." (Tr. 372). Dr. Pandelidis opined that Plaintiff had "no harmful process occurring and he ...