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Berry v. Commissioner of Social Security

United States District Court, W.D. Pennsylvania

March 7, 2017



          ROBERT C. MITCHELL United States Magistrate Judge

         Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the plaintiff's motion (ECF No. 15) will be granted, the defendant's motion (ECF No. 19) will be denied, and the matter will be remanded to the Commissioner for further proceedings.

         Plaintiff filed an application for Supplemental Security Income and Disability Insurance Benefits on August 31, 2010 (R. 104, 295). His application was denied at the initial level of review. (R. 98-100). On February 1, 2012, ALJ Leslie Perry-Dowdell held a hearing, following which she denied Plaintiff's application. (R. 54-79, 101-19). The Appeals Council, however, granted Plaintiff's request for review and remanded the case for further consideration. (R. 120-23). The ALJ held another hearing on July 31, 2014, but benefits were again denied. (R. 9-53). On May 9, 2016, the Appeals Council denied Plaintiff's request for review. (R. 1-6). This action was initiated on June 29, 2016.

         In reviewing an administrative determination of the Commissioner, the question before the court is whether there is substantial evidence in the agency record to support the findings of the Commissioner that the plaintiff failed to sustain his burden of demonstrating that he was disabled within the meaning of the Social Security Act. Richardson v. Perales, 402 U.S. 389 (1971); Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994).

         42 U.S.C. Section 405(g) provides that:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....

         Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Comm'r., 529 F.3d 198 (3d Cir. 2008). The court may not set aside a decision supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358 (3d Cir. 1999).

         As set forth in 20 C.F.R. § 416.905(a) disability is defined as:

the inability to do 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.

         In addition, a person will be considered disabled if he/she is

(a) . . . permanently and totally disabled as defined under a State plan approved under title XIV or XVI of the Social Security Act, as in effect for October 1972; (b) . . . received aid under the State plan . . . for the month of December 1973 and for at least one month prior to July 1973; and (c) . . . continue[s] to be disabled as defined under the State plan.

20 C.F.R. § 416.907.

         A physical or mental impairment is defined in 20 C.F.R. § 416.908 as an:

impairment [which] result[s] from anatomical, physiological, or psychological abnormalities which [are demonstrated] by medically acceptable clinical and laboratory diagnostic techniques.

         For purposes of determining whether or not the plaintiff met the eligibility requirements, certain evidence was considered by the Commissioner.

         At the hearings held on February 1, 2012, and July 31, 2014, the plaintiff appeared with counsel and testified that, as of the date of the second hearing, he was 54 years old (R. 36); that he lives alone (R. 36, 60); that he wears a brace on his right wrist for carpal tunnel syndrome (R. 36, 59); that it is difficult for him to grab things, pick things up, and pull things with his right hand; that he has tingling in his fingers (R. 37); that he can lift “maybe 10, 15 pounds” with his right hand (R. 40, 61); that he takes Vicodin three times a day for the pain in his hand (R. 40); that he is on welfare (R. 74); and that he can drive (though he does not have a car). At the first hearing, Plaintiff testified that he had also been undergoing physical therapy for a “tear” in his neck or shoulder. (R. 62). The plaintiff also testified that he has no limitations on standing or sitting, that he smokes, that he has trouble sleeping, that he experiences about four or five headaches a week that he treats with Tylenol, that he is sensitive to light and sound, that he has received treatment for depression (R. 67-70), that he experiences anxiety, and that he has difficulty with his concentration and attention span (R. 71).

         In terms of activities of daily living, the plaintiff testified that he watches TV most of the day, can clean his apartment, cooks his own meals, does his own grocery shopping and pulls his groceries home from the store in a cart, goes to church “now and then, ” does not have any hobbies, and occasionally visits his family (R. 65-66). On bad days, however, he testified that he doesn't “even feel like getting out of bed, or if it's a little bit better than that, I would just stay in my apartment and to actually just watch TV.” (R. 73).

         At the hearings, vocational experts were also called upon to testify. Plaintiff's past work as a commercial cleaner was described as heavy, unskilled work, while his past work as a stock clerk was described as heavy, skilled work. (R. 43). When asked to assume a person of the plaintiff's age and work experience who was limited to light work, except the person would have to avoid constant use of his right dominant hand and jobs requiring reaching above shoulder level, the vocational expert testified that such an individual could not perform the plaintiff's past work. (R. 43). However, the vocational expert testified that such an individual would be able to perform work that exists in significant numbers in the national economy, including the representative jobs of storage rental clerk, school crossing guard, and security guard. (R. 43-44). In his second hypothetical, the ALJ asked the vocational expert to assume that the individual would be limited in his ability to push and pull with his right arm. (R. 44). In response, the vocational expert testified that the individual would still be able to perform the same jobs. (R. 44). The same was true when the ALJ added the following additional limitation: the individual's work had to be limited to routine tasks performed in a work environment free of fast-paced production requirements. (R. 45). Finally, when the ALJ asked the vocational expert to assume that the individual could only perform work in isolation from the public with only occasional supervision and only occasional interaction with coworkers, the vocational expert testified that the individual could perform the following jobs: folding machine operator and document prep person. (R. 45).

         In addition, the ALJ considered other evidence, [1] including voluminous records from Plaintiff's treatment through the Department of Veteran Affairs (“VA”), in reaching her decision.

         The record reveals that the plaintiff underwent right carpal tunnel release surgery on January 17, 2007. (R. 1073). Throughout the relevant time period, he continued to complain of pain and tingling in his right hand, and in 2014, he started to notice symptoms in his left hand, as well. (R. 2280-82, 2292). The most recent nerve conduction study showed evidence of carpal tunnel syndrome, but it was noted to be “very mild in degree electrically without denervation.” (R. 2281). Testing of his left hand was normal, and there was no electrodiagnostic evidence for a cervical radiculopathy. (R. 2282). Plaintiff was scheduled for revision surgery on his right hand on September 15, 2014. (R. 2182-83). However, it is not clear from the record whether he underwent this procedure.

         Plaintiff also has a history of chronic neck and shoulder pain, stemming from degenerative disc disease and bilateral shoulder degenerative joint disease, for which he was taking Vicodin and gabapentin. (R. 2253). MRI results showed moderate-to-severe left and moderate right neuroforaminal narrowing at ¶ 4-C5 and C5-C6, and moderate narrowing at ¶ 6-C7. (R. 2281). No surgical intervention was recommended, however. (R. 2253). In March 2014, he fell and injured his knee, for which he was prescribed a knee brace. (R. 2189, 2252, 2283). Despite the pain, he had no knee instability and his gait was normal. (R. 2252).

         In addition to medication, the plaintiff was prescribed a neoprene support for his right shoulder, a right wrist cock up splint, a TENS unit, and physical and occupational therapy, which as of June 2013, was noted to have been no longer effective. (R. 1165, 1885, 1911, 1943, 2024, 2031, 2033, 2053-54).

         Based on the evidence presented, the Administrative Law Judge ...

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