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Bruce v. Berryhill

United States District Court, E.D. Pennsylvania

January 30, 2018

THOMAS BRUCE
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration

          REPORT AND RECOMMENDATION

          THOMAS J. RUETER UNITED STATES MAGISTRATE JUDGE.

         United States Magistrate Judge January 30, 2018 Plaintiff, Thomas Bruce, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act (“Act”).

         Plaintiff filed a Brief and Statement of Issues in Support of Request for Review (“Pl.'s Br.”), defendant filed a Response to Plaintiff's Request for Review (“Def.'s Br.”) and plaintiff filed a reply thereto (“Pl.'s Reply”). For the reasons set forth below, this court recommends that plaintiff's Request for Review be GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY

         In July 2012, plaintiff filed applications for SSI and disability insurance benefits (“DIB”) under Title II of the Act alleging disability beginning March 3, 1997. (R. 173-86.) The claims were denied initially and a request for a hearing was filed timely. (R. 109-20.) A hearing was held on March 12, 2014, before Administrative Law Judge (“ALJ”) Frederick Timm. (R. 35-67.) Plaintiff, who was represented by counsel, appeared and testified. Steven H. Gumerman, Ph.D., a vocational expert (“VE”), also appeared and testified. (R. 62-66.) In a decision dated June 10, 2014, the ALJ found that plaintiff was not disabled under the Act. (R. 16-34.) Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ's decision became the final decision of the Commissioner. (R. 1-15.)

         In October 2014, plaintiff sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), requesting review of the Commissioner's denial of plaintiff's claim for SSI only; plaintiff did not pursue the denial of his claim for DIB. Plaintiff alleged that the ALJ erred in finding plaintiff's major depressive disorder did not meet or equal the requirements of Listing 12.04C(1), 20 C.F.R. Part 404, Subpt. P, App. 1 and that the ALJ erred by adopting the opinion of the VE which was based upon a faulty hypothetical. In a Report and Recommendation dated February 25, 2016, the undersigned recommended that plaintiff's request for review be granted and the case be remanded to the Commissioner for further review. See R. 1594-1615. In response to the issues raised by plaintiff in his request for review, the court first found that the ALJ did not properly analyze the evidence of record when he determined that plaintiff's depressive disorder did not meet the severity of Listing 12.04C(1) because the ALJ did not properly consider whether the evidence of hospitalizations constituted episodes of decompensation under the regulations. (R. 1602-09.) Furthermore, with respect to plaintiff's argument that the ALJ erred when he found that the record contained no evidence of episodes of decompensation while plaintiff was “clean and sober, ” the court noted that a “clean and sober” standard is not congruent with the Commissioner's regulations. (R. 1609-11.) Accordingly, the court found that to the extent the ALJ relied upon plaintiff's use of drugs and alcohol as a basis for denying his claim for benefits, the ALJ had an obligation to engage in the proper analysis under the Act and its regulations. See id.; 42 U.S.C. § 1382c(a)(3)(J); 20 C.F.R. § 416.935. Moreover, with respect to plaintiff's claim that that the ALJ erred at step five of the sequential analysis by failing to incorporate all of plaintiff's credibly established limitations in the hypothetical questions posed to the VE, the court determined that the ALJ's failure to properly consider the evidence concerning plaintiff's mental impairment impacted the ALJ's determinations regarding plaintiff's RFC. (R. 1611-12.) As such, the court recommended that when the ALJ reevaluated the evidence of plaintiff's mental impairment, the ALJ should reassess plaintiff's RFC and his ability to perform work given the impairments.

         By Order dated March 11, 2016, the Report and Recommendation was approved and adopted and the matter was remanded for further evaluation. (R. 1615.) On October 9, 2015, the Appeals Council remanded the claim to an ALJ for “further proceedings consistent with the order of the court.” (R. 1616-19.)

         The court notes that plaintiff filed subsequent applications for DIB and SSI on December 16, 2014. See R. 1793-1816. Upon review of these applications in January 2015, plaintiff was awarded SSI benefits at the initial level. See R. 1622-29. Plaintiff was found to be disabled as of December 16, 2014.

         Pursuant to the Appeals Council remand order on the present applications for benefits, a second hearing was held before ALJ Timm on October 31, 2016. (R. 1534-63.) Plaintiff, represented by counsel, appeared and testified, as did VE Christine Slusarski. In a decision dated March 6, 2017, the ALJ found that plaintiff was not disabled under the Act. (R. 1508-33.) The ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through June 30, 2006.
2. A decision is deferred as to whether the claimant engaged in substantial gainful activity from March 3, 1997, the alleged onset date, through December 15, 2014, the day prior to the date that the claimant was found disabled in the subsequent favorable determination issued on January 22, 2015 (20 CFR, 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. From March 3, 1997, through December 15, 2014, the claimant had the following severe impairments: mild-to-moderate osteoarthritis of the left ankle status post fracture and open reduction internal fixation; mild degenerative disc disease of the lumbar spine status post fusion; dilated aortic root/hypertension; obstructive sleep apnea (OSA); asthma; and major depressive disorder (MDD); and polysubstance dependence in partial remission (20 CFR 404.1520(c) and 416.920(c)).
4. From March 3, 1997, through December 15, 2014, the claimant's impairments, including the substance use disorder, meet section 12.04 (Depressive, bipolar and related disorders) of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
5. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the remaining limitations would cause more than a minimal impact on the claimant's ability to perform basic work activities; therefore, the claimant would continue to have a severe impairment or combination of impairments.
6. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the claimant would not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
7. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the claimant would have the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: cannot operate foot controls with one lower extremity; must never climb ladders, ropes, or scaffolds; can perform the other postural maneuvers on occasion; and must avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, and environmental irritants. From a mental standpoint the claimant is limited to unskilled tasks that are goal-oriented rather than production-paced; no significant interaction with the general public; no more than occasional interaction with supervisors and co-workers; and requires a stable workplace, defined as involving few if any changes of setting, processes, and tools.
8. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
9. The claimant was born on March 16, 1962 and was 34 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963). On March 15, 2012, the claimant's age category changed to an individual closely approaching advanced age (20 CFR 404.1563 and 416.963).
10. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
11. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
12. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, considering the claimant's age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that the claimant could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
13. With respect to the period from March 3, 1997, through December 15, 2014, the substance use disorder is a contributing factor material to the determination of disability because the claimant would not be disabled if he stopped the substance use (20 CFR 404.1520(g), 404.1535, 416.920(g) and 416.935). Because the substance use disorder is a contributing factor material to the determination of disability, the claimant has not been disabled within the meaning of the Social Security Act at any time from March 3, 1997, the alleged onset date, through December 15, 2014, the day prior to the date that the claimant was found disabled in the subsequent favorable determination issued on January 22, 2015.

(R. 1514-26.)

         Plaintiff did not file a request for review with the Appeals Council, see Def.'s Br. at 3, making the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). Once again, plaintiff seeks review of the denial of his claim for SSI benefits only. See Pl.'s Br. at 2. Accordingly, the court will not address the claim for DIB.

         When remanding the present case for further review, the Appeals Council stated that it neither affirmed nor reopened the State agency award of benefits on plaintiff's subsequent application, and directed that the period for review before the ALJ was limited to the period prior to December 16, 2014. See R. 1512, 1618. In his decision, the ALJ addressed plaintiff's subsequent, successful SSI claim as follows:

In that more than two years have passed since the State agency issued a favorable determination on January 22, 2015, finding the claimant disabled beginning December 16, 2014, based on the subsequent claim for Title XVI disability benefits filed on December 16, 2014, and there is no evidence of fraud or similar fault, the undersigned Administrative Law Judge will not reopen this favorable determination (20 CFR 416.1487 and 416.1488). The claimant is alleging disability since March 3, 1997. As a result, this decision is limited to the closed period from March 3, 1997, the alleged onset date, through December 15, 2014, the day prior to the date that the claimant was found disabled in the favorable determination issued on January 22, 2015.

(R. 1512.)[1]

         II. STANDARD OF REVIEW

         The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 134 S.Ct. 1274 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, “so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings.” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).

         To be eligible for benefits, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Specifically, the impairments must be such that the claimant “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.” 42 U.S.C. § 1382c(a)(3)(B). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. §§ 423(d)(5), 1382c(a)(3)(H)(i).

         The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 416.920.[2] This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of his age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).

         III. BACKGROUND

         At the administrative hearing on October 31, 2016, the ALJ noted that the evidence from the prior administrative hearing remained of record for his consideration. (R. 1537.) As such, the ALJ sought “updated testimony” from plaintiff. (R. 1538.)

         At the time of the October 2016 administrative hearing, plaintiff had been living in an apartment in Wayne, Pennsylvania with a friend for the past three to four months. (R. 1547.) Prior to that time, plaintiff rented a room in a friend's home and also lived with his sister for a time. (R. 1548.) Plaintiff has two children; he had not seen them in person “in a little bit” but he paid child support. (R. 1551-52.) In the past, plaintiff helped his brother perform “odd jobs, ” but plaintiff indicated that he does not have the necessary energy to perform work. (R. 1552.) Plaintiff does not have a driver's license. (R. 1553.)

         With respect to his mental impairments, plaintiff explained that since the date of the first administrative hearing, his major depressive disorder and anxiety disorder have remained “about the same.” Id. Plaintiff described sleep difficulties due to depression and sleep apnea. (R. 1539-40.) Plaintiff also indicated that he does not feel motivated and has experienced a “loss of interest in things.” Id. Plaintiff confirmed that he continues to take a variety of psychotropic medication as prescribed by Laszlo Gyulai, M.D., the staff psychiatrist at the Department of Veterans Affairs. Id. Plaintiff confirmed that his medication regimen includes Trazanol, Aripiprazole, Uprocrean, and Nirtazapine. (R. 1539.) Plaintiff is also prescribed medication for pain. (R. 1543.)

         With respect to social interactions, plaintiff stated that his relationship with his older sister and mother had “improved a little bit” because they now “understand [more] what [plaintiff is] going through.” (R. 1540.) However, plaintiff explained such improvement pertained only to his relationship with his older sister and mother because plaintiff has “no friends that [he goes] out with or talk[s] to.” Id. Plaintiff also explained that, due to anxiety, he has difficulty being in crowds or utilizing public transportation. (R. 1541.) In addition, plaintiff described problems with concentration and focus. Id. Plaintiff represented that he continues to have symptoms of depression and anxiety even when he is drug free. (R. 1543.)

         Plaintiff stated that he had not used substances “for at least the last six months” and that he “had a beer or two.” Id. Plaintiff indicated that he received out-patient mental health services through the Veterans Administration, but had been unable to get to the VA in Philadelphia because he was living in Wayne and had difficulty arranging transportation to the Philadelphia VA facilities. (R. 1550-51.) Plaintiff moved to Wayne because the person with whom he was previously living was an alcoholic and the environment was not safe for plaintiff. (R. 1551.) The friend that plaintiff lived with at the time of the administrative hearing also was a veteran and plaintiff indicated that he felt “a little bit more relaxed and comfortable around other veterans.” Id.

         With respect to his physical abilities, plaintiff had spinal fusion surgery in 2000. (R. 1541-42.) He continues to have pain in his left leg due to a herniated disc that caused nerve damage. (R. 1542.) In 2006, plaintiff broke his ankle; to repair the break, surgeons inserted five screws and a plate. Id. Plaintiff stated that he remains unable to pivot or step backward due to continued ankle pain and weakness. Id. Plaintiff also described arthritis in his left ankle, hips, elbow, back and neck. (R. 1544.) Plaintiff was advised that he has nerve damage in his left arm; plaintiff explained that this causes a tingling sensation in his left arm to his thumb. (R. 1549.) Plaintiff sometimes utilizes a cane, such as when he climbs stairs, but was advised by his doctor that he should not “depend on it all the time.” (R. 1544-45.) Plaintiff also has asthma, for which he was hospitalized on two separate occasions in the year prior to the administrative hearing. (R. 1548-49.) In addition, plaintiff experienced recurrent syncope and was hospitalized to determine why he was “passing out.” (R. 1549.) Plaintiff has a c-pap device for obstructive sleep apnea, but acknowledged that he does not always use the device because it is ill-fitting. (R. 1545-47.)

         With respect to the vocational testimony, the ALJ first indicated that he would “rely on Dr. Gumerman's testimony [from the first administrative hearing] that there was past work here as a Sheer Operator and a Handheld Crane Operator, and that these were heavy and medium, respectively, with no transferable skills to sedentary exertion.” (R. 1555.) The ALJ then stated that he would pose hypothetical questions to VE Slusarski about other work that the hypothetical individual could perform. Id. The ALJ stated that he would “recite the RFC I reached previously for you” and “I am going to ask about the impact of reduction in standing and walking mentioned by counsel.” Id. The ALJ stated:

The RFC I reached previously was for light exertion, generally, no foot controls with one lower extremity, meaning the left lower extremity, not that, I don't think it matters, but - never to climb ladder, rope, scaffold. The remaining postural exertion and the remaining postural maneuvers occasional. Needing to avoid concentrated ...

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