United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON UNITED STATES DISTRICT JUDGE.
October 1, 2015, Plaintiff, Gary Ragland, filed this instant
appeal under 42 U.S.C. § 405(g) for review
of the decision of the Commissioner of the Social Security
Administration (“SSA”) denying his application
for disability insurance benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. § 1461,
et seq. (Doc. 1). The parties have fully briefed the
appeal. For the reasons set forth below, the decision of the
Commissioner denying Plaintiff's application for DIB will
protectively filed his application for DIB on August 4, 2012,
alleging disability beginning on November 29, 2011, due to a
combination of sleep apnea, restless legs syndrome, blindness
in his right eye, limited reading and writing skills,
glaucoma, constant pain in his back and legs, and shortness
of breath. (Tr. 10, 140, 143). The claim was initially denied by
the Bureau of Disability Determination
(“BDD”) on March 28, 2013. (Tr. 10). On April 10,
2013, Plaintiff filed a written request for a hearing before
an administrative law judge. (Tr. 10). A hearing was held on
August 15, 2014, before administrative law judge Patrick
Cutter, (“ALJ”), at which Plaintiff and an
impartial vocational expert Paul Anderson,
(“VE”), testified. (Tr. 10). On August 29, 2014,
the ALJ issued an unfavorable decision denying
Plaintiff's application for DIB. (Tr. 10). On October 22,
2014, Plaintiff filed a request for review with the Appeals
Council. (Tr. 6). On August 21, 2015, the Appeals Council
concluded that there was no basis upon which to grant
Plaintiff's request for review. (Tr. 1-3). Thus, the
ALJ's decision stood as the final decision of the
filed the instant complaint on October 1, 2015. (Doc. 1). On
December 21, 2015, Defendant filed an answer and transcript
from the SSA proceedings. (Docs. 8 and 9). Plaintiff filed a
brief in support of his complaint on January 29, 2016. (Doc.
11). Defendant filed a brief in opposition on March 3, 2016.
(Doc. 15). Plaintiff filed a reply brief on March 9, 2016.
was born in the United States on October 30, 1961, and at all
times relevant to this matter was considered an
“individual closely approaching advanced
age.” (Tr. 140). Plaintiff did not graduate from
high school or obtain his GED, but can communicate in
English. (Tr. 142, 144). His employment records indicate that
he previously worked as a manufacturing assembler, laborer,
and roofer. (Tr. 145).
document entitled “Function Report - Adult” filed
with the SSA on August 23, 2012, Plaintiff indicated that he
lived in a house with family. (Tr. 158). When asked how his
injuries, illnesses, or conditions limited his ability to
work, Plaintiff stated, “have trouble standing or
walking with legs, feet, trouble breathing.” (Tr. 158).
From the time he woke up until he went to bed, Plaintiff
watched television. (Tr. 159). Plaintiff had no problems with
personal care, prepared meals such as sandwiches daily for
five (5) minutes, did not perform chores in his house or
yard, and shopped for groceries when necessary for five (5)
minutes. (Tr. 159-161). He went outside two (2) times a week,
was able to drive a car, and was able to go out alone. (Tr.
160). His hobbies included watching television, and he did
not spend time with others. (Tr. 162). He could walk for
fifty (50) feet before needing to rest for five (5) minutes.
(Tr. 163). When asked to check what activities his illnesses,
injuries, or conditions affected, Plaintiff did not
check squatting, bending, reaching, sitting, kneeling,
talking, hearing, seeing, memory, concentration,
understanding, following instructions, using hands, or
getting along with others. (Tr. 163).
his concentration and memory, Plaintiff did not need special
reminders to take care of his personal needs, take his
medicine, or go places. (Tr. 159, 162). He could count change
and handle a savings account, but could not pay bills or use
a checkbook due to trouble reading and keeping track of his
checkbook. (Tr. 161). He could not pay attention for long,
was not able to finish what he started, did not follow
written instructions well due to trouble reading and writing,
followed spoken instructions “good, ” handled
stress “fairly, ” and handled changes in routine
“not very good.” (Tr. 163-164).
also completed a Supplemental Function Questionnaire for
pain. (Tr. 166). He stated that his pain began about five (5)
years prior, and stated he had pain and burning sensation in
his feet and legs. (Tr. 166). He stated standing and walking
caused him to have pain, that his pain was worse at the end
of the day and throughout the night, that it occurred every
day, that it was not relieved by medication, and that he had
never attended physical therapy. (Tr. 166-167).
oral hearing on August 15, 2014, Plaintiff initially
testified that what kept him from working were shortness of
breath and pain in his legs. (Tr. 31). He stated that he was
also blink in his right eye, had glaucoma, and smoked a pack
of cigarettes a day. (Tr. 32). He testified that the pain in
his legs and feet was a burning sensation that cause his legs
to give out on him. (Tr. 35-36). He stated that he was able
to drive a car, which he did about twice a week and did not
need glasses to do. (Tr. 32-34). He testified that he was
about to walk about twenty-five (25) feet before needing to
rest to catch his breath and was able to stand up for ten
(10) minutes before needing to sit because his legs and feet
would swell. (Tr. 37-38).
an abundance of caution, all medical records provided in the
Transcript have been reviewed, even those past the date last
insured of December 31, 2012.
August 20, 2012, Paul Heavner, OD, wrote a letter that
Plaintiff had not been seen in his office, Bergman Eye
Associates, since October 2008. (Tr. 190).
September 24, 2012, Plaintiff underwent a consultative
examination performed by Amatul Khalid, MD. (Tr. 191). It was
noted that Plaintiff had left-eye glaucoma diagnosed one (1)
year prior for which he had not been using the drops
prescribed, did not have blurry or double vision, was blind
in his right eye, self-diagnosed himself with sleep apnea
because he woke up gasping for air, had burning in his feet,
experienced shortness of breath with minimal activity, and
could “only walk through Wal-Mart for a half an hour
before having to sit.” (Tr. 191). It was also noted
that he smoked half a pack of cigarettes a day for the past
thirty-five (35) years. (Tr. 191). His physical examination
revealed the following: without glasses, his vision was
20/30; his bilateral lungs were clear to auscultation; a
decreased range of motion in his lumbar spine; bilaterally
increased deep tendon reflexes in his brachiradialis and
knees; abnormal vibratory sensation that was impaired in his
bilateral lower extremities from his ankle distally; and a
normal affect, judgment, and mental status. (Tr. 192-194).
Plaintiff was assessed as having peripheral neuropathy,
glaucoma in his left eye with non-compliance with his eye
drops, legal blindness in his right eye, and tobacco abuse.
(Tr. 194). Dr. Khalid opined Plaintiff: could frequently lift
up to fifty (50) pounds and carry up to ten (10) pounds;
could stand for one (1) hour or less in an eight (8) hour
workday; had no limitations with sitting; could engage in
unlimited pushing and pulling within the aforementioned
weight restrictions; could frequently bend, and occasionally
kneel, stoop, crouch, balance, and climb; had limitations
with reaching and seeing; and should avoid temperature
extremes and humidity. (Tr. 195-196).
October 5, 2012, Plaintiff underwent an x-ray of his lumbar
spine for back pain. (Tr. 199). The impression was that there
was no fracture or dislocation seen in the lumbar spine. (Tr.
November 27, 2012, Plaintiff had an appointment with Dr.
Khalid for another consultative examination. (Tr. 200). Dr.
Khalid reiterated what was noted during the first
consultative examination, and added that Plaintiff had
difficulty with reading, some math problems, writing,
spelling, and managing his finances. (Tr. 200). His physical
examination remained the same except for wheezing, and the
assessment remained the same except for the addition of
learning difficulties. (Tr. 202).
December 3, 2012, Plaintiff underwent a Pulmonary Function
Test. (Tr. 206). The impression was that Plaintiff had a
normal spirometry, lung volumes, and diffusing capacity. (Tr.
206). In the section “PFT Quality Assurance Statement,
” it was noted that Plaintiff had a good ability to
understand directions, was alert and oriented, and gave good
cooperation and effort. (Tr. 215).
February 28, 2013, Plaintiff underwent a Clinical
Psychological Disability Evaluation with Individual
Intellectual Evaluation and Achievement Test performed by
Joseph Levenstein, Ph.D. (Tr. 218). Dr. Levenstein noted
Plaintiff: was cooperative and rapport was easily
established; had well-paced speech that was difficulty to
understand; gave short answers to his questions; had a
flexible affect appropriate to thought content; was unkempt;
had a slightly unsteady gait; and was well motivated, but
required moderate amounts of praise and encouragement to
maintain motivation. (Tr. 218). His Mental Status Examination
noted Plaintiff: was alert and oriented in three spheres; had
intact appetite; was occasionally irritable; and denied
symptoms of mania and OCD. (Tr. 221). His intelligence
testing revealed “functioning ranging from the Average
range to the Mild range of intellectual disability. Overall,
[Plaintiff] appears to be functioning within the Borderline
range of intelligence.” (Tr. 221). Dr. Levenstein also
noted that Plaintiff had: extremely limited verbal skills,
working memory, and processing; and limited information
memory, academic skills, and reading comprehension. (Tr.
222). Dr. Levenstein concluded that Plaintiff was not
functionally illiterate, could understand, retain, and follow
simple instructions, could sustain attention sufficiently to
complete simple and repetitive tasks, had social skills that
were sufficient to interact appropriately with supervisors
and coworkers, and could perform activities of daily living
on an independent basis with the exception of reading and
writing. (Tr. 222). Dr. Levenstein diagnosed Plaintiff with a
Reading Disorder, Disorder of written expression, and
Borderline Intellectual Functioning. (Tr. 222). His prognosis
was unlikely to improve much at all, especially in light of
his physical problems. (Tr. 222). He also noted Plaintiff was
not capable of managing his personal funds in a competent
manner. (Tr. 223). Dr. Levenstein opined Plaintiff: (1) had
slight limitations in understanding, remembering, and
carrying out short and simple instructions; (2) had moderate
limitations in making judgments on simple work-related
decisions; (3) had extreme limitations in understanding,
remembering, and carrying out detailed instructions; (4) had
no limitations with responding appropriately to supervision,
co-workers or work pressures in a work setting; and (5) had
limitations with reading and writing with the effect of
rendering him close to illiterate. (Tr. 225-226).
March 25, 2013, Monica Yeater, Psy.D., completed a
Psychiatric Review Technique. (Tr. 52). She opined, based on
the record, that for Listing 12.02, Organic Mental Disorders,
Plaintiff had: (1) mild restriction of activities of daily
living and in maintaining social functioning; (2) moderate
difficulties in maintaining concentration, persistence, or
pace; and (3) no repeated episodes of decompensation, each of
extended duration. (Tr. 52). Dr. Yeater also completed a
Mental Residual Functional Capacity Assessment, in which she
opined Plaintiff was: (1) moderately limited in his ability
to understand and remember detailed instructions, to carry
out detailed instructions, to maintain attention and
concentration for extended periods, to perform activities
within a schedule, to maintain regular attendance, and to be
punctual within customary tolerances; (2) was limited to
unskilled work; and (3) had no social interaction or adaptive
limitations. (Tr. 56-57).
March 27, 2013, Dilip S. Kar, M.D., completed a Physical
Residual Functional Capacity assessment based on the record.
(Tr. 54-56). He opined that Plaintiff: (1) could occasionally
lift and/ or carry up to twenty (20) pounds and frequently
lift and/ or carry up to ten (10) pounds; (2) could stand
and/ or walk and sit for six (6) hours in an eight (8) hour
workday; (3) should avoid concentrated exposure to extreme
cold and heat, wetness, humidity, fumes, odors, dusts, gases,
and poor ventilation; and (4) should avoid all exposure to
hazards such as machinery and heights. (Tr. 54-55).
3, 2013, Plaintiff had an appointment with James Owens, M.D.
for hypertension, shortness of breath on exertion, and
paresthesias in his feet. (Tr. 256). It was noted that
Plaintiff had slightly limited cognitive function. (Tr. 257).
24, 2013, Plaintiff had an appointment with James Owens, M.D.
for Chronic Obstructive Pulmonary Disease and hypertension.
(Tr. 252). It was noted that his blood pressure had improved,
and that it was strongly suspected that Plaintiff had COPD.
(Tr. 252). He also reported that he had been experiencing
paresthesias in his feet. (Tr. 252).
12, 2013, Plaintiff had an appointment with John Alencherry,
M.D. for a cough and dyspnea. (Tr. 242). A chest x-ray and
pulmonary function tests were ordered. (Tr. 243).
12, 2013, Plaintiff underwent a chest x-ray. (Tr. 241). The
impression was that Plaintiff had mild hyperinflation in his
lungs. (Tr. 241).
19, 2013, Plaintiff underwent a Pulmonary Function Test. (Tr.
245). The impression was that Plaintiff had mild obstructive
airway disease with no significant component of reversible
bronchospasms and decreased oxygenation. (Tr. 245). Plaintiff
was advised to cease smoking and comply with his inhaler
treatment. (Tr. 248).
29, 2013, Plaintiff had a follow-up appointment with Dr.
Alencherry. (Tr. 247). He was diagnosed with chronic
obstructive pulmonary disease, and it was noted that he was
still smoking cigarettes and was in poor compliance with his
inhalers. (Tr. 247).
September 30, 2013, Plaintiff had an appointment with James
Owens, M.D. for bilateral leg and foot pain and hypertension.
(Tr. 249). Plaintiff reported that he had some parethesias of
his feet with burning at times and that he was still smoking
cigarettes. (Tr. 249).
April 14, 2014, Plaintiff had an appointment with Dr.
Alencherry for follow-up of COPD and cough and shortness of
breath that Plaintiff described as worsening. (Tr. 264). It
was also noted that Plaintiff was poorly compliant with
treatment for his COPD. (Tr. 264). His physical examination
was normal. (Tr. 264-265). Plaintiff was advised to quit
smoking, and was scheduled for a follow-up in four (4)
months. (Tr. 265). Plaintiff also underwent a chest x-ray
which showed mild right pleural effusion and hyperinflation
of the lungs. (Tr. 267).
April 16, 2014, Plaintiff underwent a venus Doppler of his
bilateral lower extremities. (Tr. 263). The impression was
that there was no evidence of a DVT in either lower
extremity. (Tr. 263).
18, 2014, Anne Rowland, CRNP, completed a Pulmonary Residual
Functional Capacity Questionnaire. (Tr. 270). She opined that
due to his pulmonary symptoms, Plaintiff: had occasional
interference with attention and concentration; was capable of
low stress jobs; had an impairment that was stable on current
treatment of ProAir inhaler and was expected to last at least
twelve (12) months; could walk half a city block without rest
or severe pain; could sit for more than two (2) hours at a
time and more than four (4) hours in an eight (8) hour
workday; could stand for ten (10) minutes at one time and for
less than two (2) hours in an eight (8) hour workday; needed
to take fifteen (15) to twenty (20) minute breaks during an
eight (8) work shift; could occasionally lift and carry up to
ten (10) pounds, rarely lift and carry twenty (20) pounds,
and never lift and carry fifty (50) pounds; could frequently
twist and stoop, occasionally crouch and squat, rarely climb
stairs, and never climb ladders; should avoid all exposure to
cigarette smoke, perfumes, soldering fluxes, solvents and
cleaners, fumes, odors, gases and chemicals; and should avoid
even moderate exposure to extreme cold and heat, high
humidity, wetness, and dust; and would likely be absent from
work for about four (4) days per month. (Tr. 270-273). She
noted that the earliest date the symptoms and limitations
from the questionnaire applied was June 12, 2013. (Tr. 273).