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Blum v. Berryhill

United States District Court, M.D. Pennsylvania

June 7, 2017

DANIEL E. BLUM, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          RICHARD P. CONABOY United States District Judge.

         Pending before the Court is Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Doc. 1.) Plaintiff filed an application for benefits on July 22, 2013, alleging a disability onset date of July 30, 2012, which he later amended to April 19, 2014. (R. 21.) After Plaintiff appealed the initial denial of the claims, a hearing was held on January 12, 2015, and Administrative Law Judge (“ALJ”) Richard Zack issued his Decision on March 17, 2015, concluding that Plaintiff had not been under a disability during the relevant time period. (R. 29.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on October 13, 2016. (R. 1-7.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on November 10, 2016. (Doc. 1.) He asserts in his supporting brief that the Acting Commissioner's determination should be remanded for the following reasons: 1) the ALJ erred in finding Plaintiff capable of performing his past relevant work; and 2) the ALJ erred in relying on the an outdated State Agency medical opinion. (Doc. 9 at 2.) In his reply brief, Plaintiff also asserts that the case should be remanded for consideration of the evidence associated with the Agency's subsequent award of benefits on April 2, 2017, pursuant to a new DIB application. (Doc. 11 at 4.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on April 10, 1964, and was fifty years old on the amended disability onset date of April 10, 2014. (R. 21.) He has a GED and past relevant work as a delivery driver, pizza deliverer, and manager. (R. 28, 49.)

         A. Medical Evidence

         Plaintiff does not present background medical evidence and notes that he presents evidence he considers relevant to the issues raised on appeal in the Argument section of his brief. (Doc. 9 at 1.) Defendant takes a similar approach to the presentation of evidence. (Doc. 10 at 4.) The Court will follow suit and, as needed, cite evidence relied upon by the parties in the context of their arguments.

         B. Opinion Evidence

         1. State Agency Consulting Physician

         Louis B. Bonita, M.D., found that Plaintiff had the severe impairments of Disorders of Back-Discogenic and Degenerative, Spine Disorders, Disorders of Muscle, Ligament and Fascia, and Obesity. (R. 92.) He completed a Residual Functional Capacity assessment on August 27, 2013. (R. 93-95.) He opined that Plaintiff had the following exertional limitations: he could lift twenty pounds occasionally and ten pounds frequently; he could stand and/or walk for about six hours in an eight-hour workday and sit for the same period of time; and he was not limited in his ability to push and/or pull except as shown for lift and/or carry. (R. 93.) Dr. Bonita assessed the following postural limitations: Plaintiff could climb ramps/stairs occasionally; he could never climb ladders/ropes/scaffolds; and he could stoop, kneel, crouch, and crawl occasionally. (R. 93-94.)

         2. Primary Care Physician

         Deborah Smith, M.D., completed a Physical Residual Functional Capacity Assessment on November 21, 2014. (R. 307-10.) Based on diagnoses of Spinal Stenosis, Meralgia Paresthetica, and Hyperlipidemia, Dr. Smith found the following: Plaintiff could sit and stand/walk for about two hours in an eight-hour workday; he needed to be able to shift positions at will; he would need to take unscheduled breaks during a work day; he could occasionally lift and carry less than ten pounds, rarely ten pounds, and never more than that; he could rarely crouch, stoop (bend), and twist; he could occasionally climb stairs; he could never kneel; he did not have any significant limitations with reaching, handling, or fingering; he would be off task twenty percent of the workday; he would likely miss more than four days of work per month as a result of his impairments; his symptoms were reasonably consistent with the diagnoses; he could never tolerate temperature extremes and hazards; he could rarely tolerate dust, humidity, and fumes/odors/chemicals; and she expected his impairments and their effects to last for a continuous period of at least twelve months. (R. 307-09.) Dr. Smith explained that Plaintiff had symptoms for years, he was on multiple medications for pain with some relief but he still had chronic pain, and his prognosis was poor. (R. 310.)

         C. ALJ Hearing

         At the January 12, 2015, hearing held by ALJ Zack, Plaintiff and his attorney appeared, as did Vocational Expert “VE” Carmine Abraham. (R. 33.) Plaintiff testified that he had trouble working because of pain and what he was able to do: he had pain and numbness down the right side of his arms and hands and at times he had trouble gripping things; he had pain shooting down his back and down the right side of his leg; the bottom of his left foot was totally numb; and the right side of his leg was numb. (R. 39-40.) Plaintiff said that surgery had not been recommended for his back and his arthroscopic knee surgery did not help. (R. 40.) At the time of the hearing Plaintiff was taking Neurontin for nerve pain, oxycodone and percocet for pain, and cholesterol medication. (Id.)

         Plaintiff testified that, although he used to lift fifty pounds, he generally could not lift and carry more than five pounds and he had trouble lifting a five pound container of oil and trouble with stairs when he was making pizza deliveries. (R 42.) Plaintiff said he could walk fifteen or twenty feet without stopping, he did not walk normally because of his back and leg pain, he could only be on his feet for five to ten minutes before he had to sit down, and he changed positions frequently to try to get comfortable. (R. 42-43.)

         When asked by ALJ Zack what he did in his managerial job, Plaintiff responded that he did

everything from go through produce, unloading the trucks, making the pizzas, deliveries. You're lifting anywhere from 50 pounds, which I can't do anymore, to lifting 5 pounds, walking up steps, which is very hard for me to do. Even getting out of the car because sometimes you get the car in front of the house and there's no steps. Other times, you're half a block away, and your're walking up the steps or you're walking up the hill if they don't have steps.

(R. 45.) Plaintiff added that, although he was a manager, he did deliveries, made pizzas, answered phones, and unloaded trucks. (R. 45-46.) He also said he was on his feet the whole time except when he was driving which would mean sitting down for five to ten minutes approximately every two hours but on days where he did not need to help with deliveries he was on his feet continuously. (R. 46.)

         ALJ Zack asked the VE to consider an individual with Plaintiff's profile in terms of age, education, work experience, and medical history who

still would be able to lift up to 20 pounds occasionally and 10 pounds frequently. With normal breaks and lunch periods throughout the work day, he could either sit, stand, or walk for about six out of eight hours in each of those categories. . . . The claimant does not maintain an ability to use his hands for reaching in front of himself and laterally side to side. He can handle, finger, and feel objects. . . . [He] doesn't have any significant or serious non-exertional impairments present.

(R. 49-50.) In response to the ALJ's question whether such an individual could perform any of Plaintiff's past work, the VE responded that he would be able to do the manager position. (R. 50.)

         ALJ Zack then crafted a second hypothetical question asking the VE to consider an individual who had the difficulties Plaintiff described about his back problems with pain and numbness radiating into his right leg, his knee problems, a renewal of hand problems, the same limitations of lifting and carrying that Plaintiff outlined, and the same difficulty in maintaining posture and position for long periods of time and the need to constantly change positions. (R. 50-51.) The VE responded that no jobs would be available for such an individual. (R. 51.) The VE also testified that his testimony was consistent with the Dictionary of Occupational Titles (“DOT”) and companion publications. (Id.)

         Regarding the VE's testimony in response to the first hypothetical that the individual could perform the manager job, Plaintiff's attorney then asked whether that would be as actually or generally performed. (R. 52.) The VE responded that it would be as both. (Id.)

         D. ALJ Decision

         In his March 17, 2015, Decision, ALJ Zack made the following Findings of Fact and Conclusions of Law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since July 30, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative joint disease of the right knee, status post right knee arthroscopy, partial synovectomoy, partial medial meniscectomy, chondroplasty of the patellofemoral articulation of the right knee, degenerative disc disease of the lumbar spine and obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. He can sit, stand and/or walk up to 6 hours each in an 8-hour workday with regular breaks and lunch periods. The claimant can do reaching in front and laterally, handling, fingering and feeling.
6. The claimant is capable of performing past relevant work as a manager (DOT# 185.137-010). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from July 30, 2012, through the date of this decision (20 CFR 404.1520(f)).

(R. 21-29.) Other relevant portions of the ALJ's Decision will be referenced in the Discussion section of this Memorandum.

         II. Disability ...

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