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O'Toole v. Berryhill

United States District Court, M.D. Pennsylvania

April 26, 2017

NANCY BERRYHILL[1], Acting Commissioner of Social Security Defendant.


          MALACHY E. MANNION United States District Judge

         The above-captioned action is one seeking review of a decision of the Acting Commissioner of Social Security (“Commissioner”), denying Plaintiff Patrick O'Toole's (“O'Toole”) application for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI, respectively. For the reasons set forth below, the Court will affirm the Commissioner's decision.

         I. BACKGROUND

         Disability insurance benefits are paid to an individual if that individual is disabled and “insured, ” that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the “date last insured.” It is undisputed that O'Toole met the insured status requirements of the Social Security Act through March 31, 2013. (Tr. 13).[2] In order to establish entitlement to disability insurance benefits, O'Toole was required to establish that he suffered from a disability on or before that date. 42 U.S.C. §423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

         SSI is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

         O'Toole protectively applied for DIB and SSI on April 3, 2013, alleging disability beginning July 15, 2007, which he later amended to December 20, 2012. (Tr. 11, 26, 146-57). His claims were initially denied on August 21, 2013. (Tr. 90-97). O'Toole requested a hearing before the Administrative Law Judge (“ALJ”) Office of Disability and Adjudication and Review of the Social Security Administration, and one was held on November 7, 2014. (Tr. 23-63, 98-100). At the hearing, O'Toole was represented by counsel, and a vocational expert testified. (Tr. 23-63). On December 3, 2014, the ALJ issued a decision denying O'Toole's applications. (Tr. 8-22). O'Toole filed a request for review with the Appeals Council, which was denied. (Tr. 1-5). Thus, the ALJ's decision stood as the final decision of the Commissioner.

         O'Toole filed a complaint with this Court on August 10, 2016. (Doc. 1). The Commissioner filed an answer on October 13, 2016. (Doc. 8). After supporting and opposing briefs were submitted (Docs. 10, 11, 12), the appeal[3]became ripe for disposition.

         O'Toole appeals the ALJ's determination on three grounds: (1) substantial evidence does not support the ALJ's step two finding that some of his medical conditions were not severe; (2) substantial evidence does not support the ALJ's Residual Functional Capacity (“RFC”) assessment; and (3) substantial evidence does not support the ALJ's credibility evaluation.


         When considering a social security appeal, the Court has plenary review of all legal issues decided by the Commissioner. See Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008). 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. The factual findings of the Commissioner, “if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. §405(g). “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.” Johnson, 529 F.3d at 200 (3d Cir. 2008) (quoting Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)) (internal quotations and citations omitted). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)). The United States Court of Appeals for the Third Circuit has stated,

[O]ur decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g., that offered by treating physicians) - or if it really constitutes not evidence but mere conclusion.

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986)). Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Id. (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).


         The plaintiff must establish that there is some “medically determinable basis for an impairment that prevents him from engaging in any substantial gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer, 186 F.3d at 427) (internal quotations omitted). “A claimant is considered unable to engage in any substantial gainful activity ‘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 . . . .' ” Fargnoli, 247 F.3d at 39 (quoting 42 U.S.C. §423(d)(2)(A)). The Commissioner follows a five-step inquiry pursuant to 20 C.F.R. §404.1520 to determine whether the claimant is disabled. In Plummer, the Third Circuit set out the five-steps:

In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §[404.]1520(a). If a claimant is found to be engaged in substantial activity, the disability claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) . . . . In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. §404.1520©. If the claimant fails to show that her impairments are “severe, ” she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant's impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. §404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. §404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. 20 C.F.R. §404.1520(f). The ALJ must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity. The ALJ must analyze the cumulative effect of all the claimant's impairments in determining whether she is capable of performing work and is not disabled. See 20 C.F.R. §404.1523. The ALJ will often seek the assistance of a vocational expert at this fifth step. See, [sic] Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).

Plummer, 186 F.3d at 428.

         IV. FACTS

         O'Toole was born on January 28, 1970, has a limited education, and is able to communicate in English. (Tr. 18). In the past, O'Toole worked as a machine feeder, commercial cleaner, bakery helper, laborer stores, and as a kitchen helper. (Tr. 17-18). O'Toole has not engaged in substantial gainful activity since the alleged amended onset date of disability, December 12, 2012 (Tr. 13).

         A. O'Toole's Impairments

         O'Toole has a history of type 1 diabetes mellitus, chronic renal insufficiency, and hyperlipidemia. (Tr. 726). He received medical care for these conditions at Milton S. Hershey Medical Center (“Hershey”). (Tr. 247-717, 726-975). Deborah Shepherd, MSN, CRNP, of Hershey's Endocrinology Department, reported on December 4, 2012, that O'Toole's diabetes improved with the help of a dietician. (Tr. 644). This was an improvement since O'Toole previously reported that he was sick of taking care of his diabetes. (Tr. 645). Nurse Shepherd prescribed management with Humalog, Insulin, and glucose tablets. (Tr. 645).

         On December 20, 2012, O'Toole saw his primary care physician, Munima Nasir, M.D. (Tr. 639-40). Dr. Nasir noted that O'Toole had been “extremely poorly compliant with his care, ” however, he “seem[ed] to be doing better” since reestablishing endocrinological care. (Tr. 639). Dr. Nasir noted his history of type 1 diabetes mellitus with diabetic nephropathy, neuropathy and retinopathy. (Id.). O'Toole stated that he was doing fairly well and denied acute issues. (Id.). His physical examination was unremarkable and Dr. Nasir recommended follow-up with Endocrinology. (Tr. 639-40).

         A January 14, 2013 nutrition outpatient note provides that O'Toole is “very happy with how things have worked since he is doing intense carb counting, ” and that he “loves” his insulin pens. (Tr. 634). It was further noted that he lives with his parents, is a landscaper, and was advised to continue to complete food and glucose records and to bring with him to his next appointment on February 11, 2013. (Id.). His follow up nutrition appointment in February again noted that he loves his insulin pens, but that his glucose logs and food records were incomplete and he has not been landscaping because he has been ill and very tired. (Tr. 631).

         O'Toole had a consultation for chronic kidney disease with Christin Spatz, M.D. on February 18, 2013. (Tr. 623). Dr. Spatz noted that O'Toole has suffered from diabetes type 1 since the age of 20. (Id.). She also indicated other medical complications of nephropathy, retinopathy and neuropathy. (Id.). His symptoms included fatigue, feeling cold, left-sided pain and reduced appetite. (Id.). Dr. Spatz noted that O'Toole had very poorly controlled diabetes and was lost to follow-up with endocrinology due to noncompliance, but that he has recently reestablished with endocrinology and has continued to improve his blood sugar control. (Id.). She also noted that he was remarkable for hyperlipidemia, but does not currently take his cholesterol medicine. (Id.). With regard to his chronic kidney disease care, Dr. Spatz noted that his renal function has remained stable for the last 3 years but that he does have significant proteinuria, and explained to him the importance of blood sugar control in preserving his renal function. (Tr. 624).

         On March 8, 2013, O'Toole presented to the Hershey Medical Center emergency room with complaints of nausea with vomiting of dark emesis after arrival to the emergency room. (Tr. 606). A CT scan of his abdomen revealed no evidence of acute intrathoracic, intra-abdominal, or intrapelvic pathology, but greater than expected calcific atherosclerosis for his age. (Tr. 607). O'Toole was discharged on March 10, 2013 with ...

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