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Tracey v. Berryhill

United States District Court, M.D. Pennsylvania

February 5, 2018

MICHAEL S. TRACEY, Plaintiff
v.
NANCY A. BERRYHILL[1] Acting Commissioner of Social Security Defendant.

          Mannion Judge.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         This is 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.

         This 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 DENIED.

         II. Background and Procedural History

         Plaintiff 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).

         Mr. 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).

         Mr. 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 testified. (Id.).

         Mr. 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.).

         Mr. 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).

         On 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. (Id.).

         Mr. 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).

         On 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.).

         On 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. (Id.).

         A state 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. (Id.).

         Mr. 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.).

         Mr. 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).

         Mr. 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.).

         In 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).

         On 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 14).

         Between 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).

         The 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. 13).

         III. Legal Standards

         A. Substantial Evidence Review

         When 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 . . . .”).

         B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

         To 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 ...


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