United States District Court, M.D. Pennsylvania
MICHAEL S. TRACEY, Plaintiff
NANCY A. BERRYHILL Acting Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.
an action brought under Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), seeking judicial review of the
final decision of the Commissioner of Social Security
(“Commissioner”) denying the claim of Plaintiff
Michael Scott Tracey (“Mr. Tracey”) for
disability insurance benefits and supplemental security
income under the Social Security Act.
matter has been referred to the undersigned United States
Magistrate Judge to prepare a 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. Jurisdiction is conferred on this Court pursuant
to 42 U.S.C. §405(g). For the reasons expressed herein,
the Court recommends that the Commissioner's final
decision be AFFIRMED, and the
Plaintiff's requests for relief be
Background and Procedural History
Michael Tracey was born on November 3, 1968, and is an adult
individual who resided within the Middle District of
Pennsylvania at all times relevant to this action.
(Tr. 173, 176). At the time of application filing,
Mr. Tracey was married to Jeanette Tracey. (Id. at
176). Mr. Tracey completed the twelfth grade. (Id.
at 178). His past relevant work experience includes work as a
store laborer, construction worker, industrial truck
operator, and injection molding machine operator.
(Id. at 20).
Tracey filed for disability insurance benefits and
supplemental security income on August 19, 2013. (Tr. 11). In
his disability report, he listed the following five physical
or mental conditions as limiting his ability to work: (1)
tone deafness in both ears; (2) carpal tunnel syndrome; (3)
anger and anxiety; (4) burning sensation in his right foot;
and, (5) visual impairment. (Doc. 8-6 at 177). Mr. Tracey
alleged his disability began August 26, 2012. (Tr. 11).
Tracey's claim was initially denied on March 3, 2014.
(Id.). ALJ Daniel Myers held a hearing on this claim
on August 31, 2015, at which Mr. Tracey appeared and
Tracey testified that he lives with his wife, and that she is
employed. (Id. at 34). When he was a child, he
injured his right wrist while breaking a window.
(Id. at 37). He testified he cannot feel his fingers
on his right hand and cannot pick up small objects, hold
large objects, or move his right wrist. (Id.).
Tracey provided medical evidence that he appeared at
Myerstown Family Practice on October 1, 2012, complaining of
pain shooting from his right wrist to his elbow.
(Id. at 261). He requested a referral to an
orthopedist. (Id.). Bruce Yeamans, M.D., of
Myerstown Family Practice, signed two employability forms
opining that Mr. Tracey is temporarily disabled: one on
February 1, 2013 (opining the disability would last until
September 1, 2013) and one on August 14, 2013 (opining the
disability would last until February 14, 2014). (Id.
at 274-77). A third employability form opining temporary
disability was signed by Richard Emler, a physician assistant
at Myerstown Family Practice. (Id. at 279). This
form was not dated by PA Emler, but was dated October 1,
2012, by Mr. Tracey. (Id. at 278-79). It contained
the opinion that Mr. Tracey's temporary disability would
last less than twelve months, from October 1, 2012, to
January 1, 2013. (Id. at 279).
January 22, 2013, Mr. Tracey returned to Myerstown Family
Practice. (Id. at 263). Dr. Yeamans noted that Mr.
Tracey will need a nerve graft in his right wrist.
(Id.). He also assessed Mr. Tracey's anxiety.
Dr. Yeamans noted Paxil worked well for Mr. Tracey in the
past, and ordered Mr. Tracey to continue with Paxil.
(Id. at 264-65). On another follow-up with Myerstown
Family Practice on February 20, 2013, Dr. Yeamans again noted
the need for a nerve graft and ordered Mr. Tracey to continue
with Paxil. (Id. at 266-67). At this follow-up
appointment, Mr. Tracey reported to Dr. Yeamans that he
believes the Paxil helps him. (Id. at 266). On
August 14, 2013, Mr. Tracey returned to Myerstown Family
Practice. (Id. at 269). He reported that he had run
out of Paxil and was easily irritated since running out.
(Id.). Mr. Tracey was re-prescribed Paxil.
Tracey had the nerve graft completed on his right wrist on
March 28, 2013, by a surgeon at Hershey Medical Center.
(Id. at 302). At an April 12, 2013, follow-up with
Hershey Medical Center, Mr. Tracey reported he was doing
well, with mild to moderate pain only in his right upper
extremity. (Id. at 292).
January 2, 2014, Mr. Tracey had surgery to address scaphoid
lunate advanced collapse. (Id. at 354-55). The
scaphoid lunate advanced collapse resulted in Mr. Tracey
continuing to complain of wrist pain after the nerve graft.
(Id. at 286). On January 17, 2014, Mr. Tracey was
doing well, with moderate residual pain and swelling from the
surgery. (Id. at 342). He was also able to
demonstrate full composite flexion and extension of his
fingers throughout. (Id.).
January 27, 2014, James Nolan, Ph.D., examined Mr. Tracey at
the agency's request. (Id. at 422-24). Dr. Nolan
found Mr. Tracey had extreme limitations in his ability to
deal with supervisors and his ability to respond to usual
work situations and changes in a routine work setting.
(Id. at 425-26). He also found Mr. Tracey had marked
limitations in his ability to interact with others and his
ability to make judgments on complex work-related decisions.
agency psychologist, Michael Suminski, Ph.D., reviewed Mr.
Tracey's file, including Dr. Nolan's opinion.
(Id. at 59-61). Dr. Suminski found Mr. Tracey had no
more than moderate limitations, could perform simple routine
tasks, and had intact concentration, persistence, and pace.
Tracey's medical records were reviewed by state agency
physician Michael Brown, D.O., on February 21, 2014.
(Id. at 54-56, 70-72). Dr. Brown opined that Mr.
Tracey could perform light work with the following
exceptions: (1) he can never climb ladders, ropes, or
scaffolds; and (2) he can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, crawl, and handle or
finger with his right upper extremity. (Id.).
Tracey reported to Philhaven Mental Health Treatment Center
on April 16, 2014, with complaints of anxiety, occasional
depression, and anger. (Id. at 434, 439). He was
assessed a GAF score of 51. (Id. at 432). At that
point, Mr. Tracey's Paxil dose was adjusted, and he was
ordered to start Buspar and consider seeing an outpatient
therapist. (Id. at 434). At a June 6, 2014,
appointment at Philhaven, Mr. Tracey reported that his
depression was improving but his anxiety had not changed and
he was experiencing more anger. (Id. at 574). Nhien
Nguyen, M.D., of Philhaven later provided a letter dated
September 28, 2015, stating Mr. Tracey was not capable of
working a forty-hour week due to his mental impairments.
(Id. at 559, 587).
Tracey had a wrist fusion surgery on July 8, 2014.
(Id. at 443-45). At a two-week follow-up after the
surgery, Mr. Tracey reported he was doing well but was placed
in a cast. (Id. at 462). Mr. Tracey impermissibly
removed his cast soon thereafter, and it was replaced on July
30, 2014, over a fear that Mr. Tracey would be unable to keep
weight off his wrist. (Id. at 472-73). At an August
20, 2014, follow-up, Mr. Tracey reported mild residual
discomfort but had significantly improved. (Id. at
466). He reported severe tingling and pain in his right small
and ring fingers, which the doctor attributed to severe right
ulnar neuropathy. (Id.).
mid-November 2014, Mr. Tracey underwent right cubital release
surgery. (Id. at 500). At a two-week follow up with
Hershey Medical Center, he was doing well and reported early
improvement in sensation in the right ulnar nerve
distribution. (Id.). Mr. Tracey also reported a
flare-up of his olecranon bursitis. (Id.). On
January 15, 2015, Mr. Tracey underwent surgery to remove the
olecranon. (Id. at 513). At a two-week follow up,
Mr. Tracey was doing well and had regained motion in his
elbow. (Id. at 524).
October 19, 2015, the ALJ issued an opinion finding Mr.
Tracey was not disabled under the Social Security Act.
(Id. at 11-22). The ALJ followed the five-step
analysis for disability claims under the Social Security Act.
At Step One, the ALJ determined that Mr. Tracey had not
engaged in substantial gainful activity since the time of his
alleged onset of disability. (Id. at 13). At Step
Two, the ALJ found Mr. Tracey had the following six severe
impairments: (1) carpal tunnel syndrome; (2) chronic right
olecranon bursitis; (3) depression; (4) borderline
personality disorder; (5) generalized anxiety disorder; and,
(6) alcohol dependence. (Id.). At Step Three, he
determined that Mr. Tracey's severe impairments did not
meet or equal any of the listed impairments. (Id. at
Step 3 and Step 4, the ALJ found Mr. Tracey possessed the
residual functional capacity (“RFC”) to perform
light work, with the following exceptions or specifications:
Occasional [sic] stoop, kneel, crouch, crawl and climb
stairs; must avoid hazards such as unprotected heights; and
can perform occasional handling and fingering with the
dominant right upper extremity. The claimant can understand,
remember and carry out simple work related instructions, is
limited to exercising only simple work related judgments,
requires no more than occasional changes to the routine work
setting, and can perform only occasional interactions with
the public, coworkers and supervisors.
(Id. at 15-16). At Step Four, the ALJ found that Mr.
Tracey was not capable of performing any past relevant work.
(Id. at 20). At Step Five, the ALJ made a finding
that Mr. Tracey was not disabled because he could perform the
following three occupations: (1) conveyor-line bakery worker;
(2) egg candler; and, (3) carting machine operator.
(Id. at 21).
agency Appeals Council denied Mr. Tracey's request for
review on January 19, 2017. (Id. at 1). On March 17,
2017, Mr. Tracey filed a complaint with this Court seeking
review. (Doc. 1). The Commissioner filed her answer on May
22, 2017. (Doc. 7). This matter has been fully briefed by the
parties and is ripe for decision. (Doc. 11; Doc. 12; Doc.
Substantial Evidence Review
reviewing the Commissioner's final decision denying a
claimant's application for benefits, this Court's
review is limited to the question of whether the findings of
the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. §405(g);
Johnson v. Comm'r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d
533, 536 (M.D. Pa. 2012). 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.” Pierce
v. Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales,
402 U.S. 389, 401 (1971). A single piece of evidence is not
substantial evidence if the ALJ ignores countervailing
evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d
Cir. 1993). But in an adequately developed factual record,
substantial evidence may be “something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
[the ALJ's decision] from being supported by substantial
evidence.” Consolo v. Fed. Maritime
Comm'n, 383 U.S. 607, 620 (1966). “In
determining if the Commissioner's decision is supported
by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F.Supp.2d
623, 627 (M.D. Pa. 2003). The question before this Court,
therefore, is not whether the plaintiff is disabled, but
whether the Commissioner's finding that the plaintiff is
not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.
See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL
940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been
held that an ALJ's errors of law denote a lack of
substantial evidence.”) (alterations omitted);
Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa.
1981) (“The Secretary's determination as to the
status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan,
900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of
review on legal matters is plenary); Ficca, 901
F.Supp.2d at 536 (“[T]he court has plenary review of
all legal issues . . . .”).
Initial Burdens of Proof, Persuasion, and Articulation for
receive benefits under the Social Security Act by reason of
disability, a 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. §423(d)(1)(A); 42
U.S.C. §1382c(a)(3)(A); see also 20 C.F.R.
§§404.1505(a), 416.905(a). To satisfy this
requirement, a claimant must have a severe physical or mental
impairment that makes it impossible to do his or her previous
work or any other substantial gainful activity that exists in
the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C.
§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a),
416.905(a). To receive benefits under Title II of the Social