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Grant v. Colvin

United States District Court, M.D. Pennsylvania

March 17, 2017

Michael Grant, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration Defendant.

          Mariani Judge

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. U.S. MAGISTRATE JUDGE.

         I. Introduction.

         The plaintiff Michael Grant (“Mr. Grant”), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).

         Mr. Grant alleges that he suffers from severe, intractable pain as a result of two workplace injuries that have caused lasting impairment to his back. (Admin. Tr. 47).

         The first of these injuries occurred on June 28, 2011. (Admin. Tr. 321). Shortly after this injury, Mr. Grant returned to work on limited duty. He returned to full duty one month after his injury. (Admin. Tr. 323)(directing Mr. Grant to return to work with no restrictions on August 13, 2011).

         Mr. Grant injured his back a second time on December 19, 2011. (Admin. Tr. 323, 326). As before, Mr. Grant returned to work on limited duty after a short period of time. Unlike his first injury, however, his symptoms did not permanently resolve. Although Mr. Grant's condition improved during the course of work-hardening physical therapy, he stopped going to work on August 16, 2012, due to severe back pain. Records reflect that Mr. Grant stopped going to physical therapy around the same time. (Admin. Tr. 692)(noting that, as of September 7, 2012, Mr. Grant had not been to physical therapy in three weeks).

         Mr. Grant alleges that his back impairment affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, and get along with others. (Admin. Tr. 183). He reported that he has difficulty bending, standing more than five or ten minutes or walking for more than a quarter mile on a “good day, ” occasional numbness in his legs, and difficulty lifting twenty pounds or more without pain, (Admin. Tr. 44, 46).

         This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we find that the final decision of the Commissioner of Social Security is not supported by substantial evidence. Accordingly, it is recommended that the final decision of the Commissioner denying Mr. Grant's applications for benefits be VACATED and that this case be REMANDED to the Commissioner to conduct a new administrative hearing.

         II. Background and Procedural History.

         On September 11, 2012, Mr. Grant filed an application for disability insurance benefits under Title II of the Social Security Act. On September 26, 2012, Mr. Grant protectively filed an application for supplemental security income under Title XVI of the Social Security Act. In both applications, Mr. Grant alleged that he became totally disabled on August 16, 2012, as a result of the following conditions: arthritis and degenerative disc disease. (Admin. Tr. 169).

         On January 4, 2013, Mr. Grant's applications were denied at the initial level of administrative review. The adjudicator found that, despite his impairments, Mr. Grant could engage in sedentary work. (Admin. Tr. 61).

         On March 31, 2014, Mr. Grant appeared and testified during an administrative hearing before Administrative Law Judge Charles Bridges (“ALJ”). Mr. Grant was represented by counsel throughout the proceedings. Impartial vocational expert Paul A. Anderson (“VE Anderson”) also appeared and testified.

         On April 11, 2014, the ALJ issued a written decision denying Mr. Grant's applications. The ALJ concluded that Mr. Grant could engage in a range of sedentary work that did not preclude him from engaging in other work.

         Thereafter, Mr. Grant sought review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review. Together with his request Mr. Grant submitted new evidence that was not before the ALJ when he issued his decision. (Admin. Tr. 9-19, 854-874).

         On August 13, 2015, the Appeals Council denied Mr. Grant's request for review. This denial makes the ALJ's 2014 decision the final decision of the Commissioner subject to judicial review by this Court.

         On October 11, 2015, Mr. Grant filed the complaint in the instant matter. (Doc. 1). In his complaint, Mr. Grant alleges that the ALJ's decision denying his applications is not in accordance with the law or regulations, and is not supported by substantial evidence. As relief he requests that this Court enter an order awarding benefits, or in the alternative remand this matter for a new administrative hearing.

         On December 21, 2015, the Commissioner filed her answer, in which she maintains that the ALJ's final decision is in accordance with the law and regulations, and is based on findings of fact that are supported by substantial evidence. (Doc. 9). Together with her answer, the Commissioner filed a certified transcript of the administrative proceedings in this case. (Doc. 10).

         This matter has been fully briefed by the parties and is ripe for decision. (Doc. 16; Doc. 18; Doc. 19).

         The voluminous record in this case includes more than eight-hundred pages of evidence, including diagnostic studies, physical activity assessments, and medical opinions by Mr. Grant's treating medical sources. For the benefit of the Court we have summarized the evidence most relevant to the issues raised on appeal.

         An MRI of Mr. Grant's lumbar spine taken on July 20, 2011, after his first injury but before his second, revealed mild to moderate multilevel degenerative changes at ¶ 3-L4 and L4-L5. (Admin. Tr. 376). There was minimal neuroforaminal compromise at ¶ 3-L4, and moderate neuroforaminal compromise with minimal effacement of the spine at ¶ 4-L5. Id. There was no significant spinal stenosis. Id.

         An EMG performed on January 13, 2012, one month after Mr. Grant's second injury, revealed the impression of a chronic L5-S1 radiculopathy on the left. (Admin. Tr. 377).

         A second MRI taken on August 31, 2012, two weeks after Mr. Grant's alleged onset date, revealed the impression of minimal bulging changes of the L5-S1 disc, and a possible small disc protrusion on the left side at ¶ 4-L5. (Admin. Tr. 370).

         X-rays of Mr. Grant's lumbar spine taken on January 8, 2014, revealed moderate degenerative changes of the lumbar spine, most significant at ¶ 3-L4 and L4-L5. (Admin. Tr. 739).

         During the course of a work hardening physical therapy program, an occupational therapist conducted two comprehensive physical ability assessments.

         The first evaluation took place on June 6, 2012, two months before Mr. Grant's alleged onset date, and was performed by registered and licensed occupational therapist David Raptosh (“OTR/L Raptosh”). (Admin. Tr. 632-656). Mr. Grant demonstrated the ability to: occasionally lift up to sixty pounds from waist to shoulder and thirty pounds from floor to waist; occasionally carry forty pounds; sit constantly, stand frequently (required positional change to sitting after twenty-two minutes); walk occasionally; constantly reach (at desk level), handle, and grasp; frequently reach (overhead), balance, crouch, and finger; and, occasionally climb stairs, reach (to the floor), and stoop.[1] Based on this assessment, OTR/L Raptosh assessed that Mr. Grant could engage in “medium” work.[2]

The second evaluation took place on July 9, 2012, one month before Mr. Grant's alleged onset date, and was performed by OTR/L Raptosh. (Admin. Tr. 405-406). Mr. Grant demonstrated the ability to: occasionally lift sixty pounds and occasionally carry forty pounds, and frequently lift between twenty and thirty pounds and frequently carry thirty pounds; constantly sit; frequently stand (with positional change), walk, reach (at desk level), reach (to floor level), balance stoop, and crouch; occasionally climb stairs, reach (overhead); and never crawl. OTR/L Raptosh assessed that Mr. Grant could engage in “medium” work. The July 9, 2012 physical An activity or condition is “constant” when it exists two-thirds or more of the time. Id. abilities assessment was signed by Mr. Grant's primary care physician Francis Brescia (“Dr. Brescia”) as well as OTR/L Raptosh. (Admin. Tr. 406).

         The record also includes multiple “work excuses” issued by Dr. Brescia, and one work excuse issued by spinal ...


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