United States District Court, M.D. Pennsylvania
BRIAN M. PACHECO, Plaintiff,
NANCY BERRYHILL,  Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. U.S. Magistrate Judge
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.
reasons stated herein, we respectfully recommend that the
decision of the Commissioner be AFFIRMED.
Background and Procedural History
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.
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.
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).
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
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.
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.
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.
matter has been fully briefed by the parties and is ripe for
decision. (Docs. 11, 14, and 15).
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).
possesses a driver's license and is able to drive short
distances with limitations. Currently, Pacheco does not own a
car. (Tr. 55).
past work includes: driver for taxi/car service and
dispatcher. (Tr. 55).
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).
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).
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).
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).
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 ...