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Ralph v. Colvin

United States District Court, M.D. Pennsylvania

May 11, 2015

DONALD A. RALPH, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SOCIAL SECURITY, Defendant

MEMORANDUM

Christopher C. Conner, Chief Judge

Background

The above-captioned action seeks review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Donald A. Ralph's claim for social security disability insurance benefits and supplemental security income benefits.[1]

On February 8, 2011, Ralph protectively filed[2] an application for disability insurance benefits and on March 30, 2011, an application for supplemental security income benefits. Tr. 14 and 219-232.[3] On May 10, 2011, the Bureau of Disability Determination[4] denied Ralph's applications. Tr. 150-161. On May 11, 2011, Ralph filed a request for a hearing before an administrative law judge. Tr. 14 and 162-163. The request was granted and a hearing was held on September 19, 2012. Tr. 14 and 32-100. Ralph was represented by counsel at the hearing. Id.

In his application for disability insurance benefits Ralph claimed that he became disabled on November 20, 2009 and in his application for supplemental security income benefits on November 21, 2009. Tr. 14, 219 and 226. At the administration hearing Ralph amended his alleged disability onset date to August 25, 2010. Tr. 14, 43, 47-48 and 50. Ralph alleged that he was disabled from performing any full-time gainful employment because of depression, diabetes, high blood pressure, coronary artery disease, edema in the lower extremities, high cholesterol, arthritis in the knees and a history of bilateral total knee replacement. Tr. 65-70, 156, 256, 299 and 323. On September 27, 2012, the administrative law judge issued a decision denying Ralph's applications. Tr. 14-24. The administrative law judge found that Ralph failed to prove that he met the requirements of a listed impairment or suffered from work-preclusive functional limitations from August 25, 2010, through the date of the decision. Id. As will be explained in more detail infra the administrative law judge found that Ralph was able to perform a limited range of sedentary work[5] on a full-time basis and identified three positions that Ralph could perform. Id. On November 21, 2012, Ralph filed a request for review with the Appeals Council. Tr. 8-10. On May 1, 2014, the Appeals Council concluded that there was no basis upon which to grant Ralph's request for review. Tr. 8-10. Ralph filed the instant complaint in this court on June 25, 2014.

Ralph makes several arguments, including that the administrative law judge failed to appropriately consider the opinion of a treating physician as well as the opinion of a treating certified registered nurse practitioner. For the reasons, set forth below the court finds substantial merit in that argument and will remand the case to the Commissioner for further proceedings.

I. 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.").

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).

Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id.

II. 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 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, [6] (2) has an impairment that is severe or a combination of impairments that is severe, [7] (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, [8] (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.[9]

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.l ('"Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

III. Developmental, Educational and Work History

Ralph was born in the United States on August 8, 1963, and at all times relevant to this matter was considered a "younger individual"[10] whose age would not significantly impact his ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and 416.963(c); Tr. 110, 219 and 226. Ralph graduated from high school in 1980 and can read, write, and converse in English and perform basic mathematical functions. Tr. 257, 298, 300, 344 and 663. During his elementary and secondary schooling, Ralph attended regular education classes. Tr. 300. After graduating from high school, Ralph obtained in 1982 an associate degree in culinary arts. Tr. 300, 344 and 655. Ralph has no history of illicit drug use but has a history of smoking "but quit a long time [ago]" and drinks alcohol occasionally "on a social basis." Tr. 374, 446, 454, 521, 662 and 1156.

Ralph's work history covers 31 years and at least 10 different employers. Tr. 237 and 239-242. The records of the Social Security Administration reveal that Ralph had earnings in the years 1979 through 2009. Id. Ralph's annual earnings range from a low of $1269.62 in 1979 to a high of $39, 685.73 in 2005. Id. After 1995, Ralph's annual earnings never fell below $21, 700.71 and averaged $31, 872.88. Id. The sum of Ralph's earnings during his 31 years of employment is $686, 129.38. Id.

Ralph reported that he worked as a supervisor of a kitchen at a hospital from August, 1995 to August, 2007; as a general manager of a restaurant from July, 2003 to February, 2007; as a cook at a restaurant from August, 2001 to February, 2002; as a cook for a catering company from February, 2002 to July, 2003; and as a cook for a retirement community from August, 2007 to November, 2009. Tr. 301. Ralph also stated that he worked at a candy store as a clerk from 1996 to 1997 and as an emergency medical technician for an ambulance service from 1994 to 1997. Tr. 246.

A vocational expert identified Ralph's past relevant employment[11] as (1) a cook which the vocational expert described as skilled, medium work, and (2) a general manager at a restaurant also described as skilled, medium work. Tr. 22 and 93-94. Ralph has not worked since November 20, 2009. Tr. 300.

IV. Medical Records

Before we address the administrative law judge's decision and the arguments of counsel, we will review some of Ralph's medical records. The relevant time period in this case for assessing whether substantial evidence supports the administrative law judge's decision denying Ralph disability insurance and supplemental security income benefits is from August 25, 2010, Ralph's amended alleged disability onset date, until September 27, 2012, the date of the administrative law judge's decision.

Based on a request from Paul J. Baughman, D.O., Ralph's primary care physician, Ralph on August 25, 2010, had a consultation regarding bilateral knee pain with Robert R. Kaneda, D.O., at the Orthopedic Institute of Pennsylvania, located in Harrisburg, Pennsylvania. Tr. 571. A physical examination performed by Dr. Kaneda revealed that Ralph had swelling and crepitus (crackling or popping sounds) in both knees, his active range of motion was slightly reduced and his stance and gait were antalgic. Id. X-rays revealed evidence of degenerative changes of both knees, right more severe than ...


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