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Pacheco v. Berryhill

United States District Court, M.D. Pennsylvania

January 22, 2018

BRIAN M. PACHECO, Plaintiff,
v.
NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Conner, C.J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. U.S. Magistrate Judge

         This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's (“Commissioner”) final decision denying Brian M. Pacheco's claim for disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for the preparation of the 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 stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED.

         I. Background and Procedural History

         Brian M. Pacheco (“Pacheco”) is an adult individual born December 13, 1961. Pacheco was fifty-one years old at the time of the alleged onset of disability-October 16, 2013. (Tr. 16).

         Pacheco's age at the onset date makes him an “individual closely approaching advanced age” under the Commissioner's regulations. See 20 C.F.R. §416.963.

         On October 16, 2013, Pacheco protectively filed an application for benefits under Title II of the Social Security Act alleging disability as of October 16, 2013. In his application, Pacheco alleged that the following impairments prevent him from engaging in any work: degenerative disc disease, obesity, COPD, depression, high blood pressure and hip replacement. (Tr. 125).

         Pacheco's claim was initially denied on January 23, 2014. Thereafter, he filed a timely request for an administrative hearing. His request was granted. Pacheco appeared and testified before Administrative Law Judge (“ALJ”) Frank Barletta on June 12, 2015. Pacheco was represented by counsel, Timothy B. Fisher, II, throughout the proceeding. In addition, impartial vocational expert (“VE”) Gerald W. Myers also appeared and testified during the administrative hearing.

         On August 10, 2015, the ALJ denied Pacheco's application for benefits in a written decision. On October 5, 2015, Pacheco sought further review of his claims by the Appeals Council of the Office of Disability Adjudication and Review, but his request was denied on February 3, 2017. This makes the ALJ's August 2015 decision the final decision subject to judicial review by this Court.

         Pacheco filed a timely complaint in this Court on March 8, 2017. (Doc. 1). In his complaint, Pacheco alleges that the final decision of the Commissioner is not supported by substantial evidence and contains errors of law.

         On May 19, 2017, the Commissioner filed his answer, in which he maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 8).

         This matter has been fully briefed by the parties and is ripe for decision. (Docs. 11, 14, and 15).

         At the time of the administrative hearing, Pacheco was fifty-three years old and resided in Stroudsburg, Pennsylvania, which is in the Middle District of Pennsylvania. Pacheco completed a high school education. (Tr. 55).

         Pacheco possesses a driver's license and is able to drive short distances with limitations. Currently, Pacheco does not own a car. (Tr. 55).

         Pacheco's past work includes: driver for taxi/car service and dispatcher. (Tr. 55).

         Pacheco testified that he is 6' 1” and weighs 342 pounds. (Tr. 54). He complains of pain in his lower back and left leg/hip. (Tr. 57-58). Pacheco stated that the pain starts when he stands for longer than a few minutes. He is not steady when walking up or down stairs. He uses a railing to stay steady and tries to grab things to hold onto. He also uses his arms to steady himself. (Tr. 58-59). Pacheco testified that he is able to grocery shop, but by the time he gets to the second aisle he needs to lean on the cart. (Tr. 59-60). Pacheco stated he likes to play the guitar. (Tr. 66).

         Pacheco stated that he has breathing problems. The breathing issues are sometimes due to allergies and sometimes due to exertion. (Tr. 60). He stated that he is unable to pick things up from the floor because he gets dizzy. (Tr. 68).

         Pacheco stated that he can sit for approximately a half hour before he has to get up due to being uncomfortable on his back side and down his leg. (Tr. 59).

         Pacheco stated he can lift approximately 25/50 pounds and carry it a short distance. (Tr. 61). He stated that if he lifted too much for too long, he would have back pain. (Tr. 61).

         Pacheco stated that he only sleeps two hours at a time and wakes up with hip pain. (Tr. 62-63). He takes naps during the day ...


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