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Deiter v. Berryhill

United States District Court, M.D. Pennsylvania

February 5, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Judge Brann


          Martin C. Carlson United States Magistrate Judge

          I. Introduction

         The plaintiff, David E. Deiter (“Mr. Deiter”), seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits under Title II of the Social Security Act. In this Social Security Appeal, we are called upon to review three errors that Mr. Deiter claims the Administrative Law Judge (“ALJ”) made when reaching her decision denying his disability claim. Specifically, we are asked to determine: (1) whether the ALJ sufficiently weighed the opinions of Mr. Deiter's treating physician (Doc. 18 p. 3); (2) whether the ALJ erred in evaluating Deiter's subjective symptoms of pain by improperly rejecting Mr. Deiter's wife's observations (Doc. 18 p. 12); and (3) whether Mr. Deiter's newly submitted evidence warranted a sentence six remand.[2] (Doc. 18 p. 15.)

         In undertaking this analysis we are cautioned that we examine the ALJ's decision against a very deferential standard of review, one which is limited to addressing the question of whether the findings of the ALJ 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). Rather, “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).

         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). Given the deferential standard of review that applies to Social Security Appeals, which calls upon us simply to determine whether substantial evidence supports the ALJ's findings, we conclude that substantial evidence exists in this case which justified the ALJ's decisions that led to the denial of this particular claim. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner in this case.

         II. Statement of Facts and of the Case

         David Deiter's disability application stems from the medical complications Deiter experienced following two mishaps. The first of these mishaps took place in October of 2008 when Dieter, who worked as a roofer, suffered multiple injuries in a fall from a roof.

         This fall resulted in a number of serious injuries for Deiter, including rib and sternum fractures, lacerations, pneumothorax, and pulmonary embolism. (Tr. 19.) In the wake of this fall, while his treating physicians described Deiter's October 2008 injuries as “significant, ” they also concluded that “his healing has gone well.” (Tr. 333.) Thus, despite these injuries, Dieter was able to return to his past work as a roofer and remained employed in this field until the alleged onset date of his disability in 2012. During this time, diagnostic testing performed by health care providers seemed to confirm an essentially normal recovery from the injuries suffered in this fall. Thus, diagnostic images of Deiter's chest taken in December 2011 showed his sternum fracture to be completely healed. (Tr. 376.) The images of Deiter's heart and lungs were normal except for mild diffuse right lateral pleural thickening related to lacerations to Deiter's lung sustained in the October 2008 fall. This testing also disclosed that Deiter's rib fractures had healed, but disclosed significant deformity of the third through ninth ribs, which was attributed to the fractures he suffered in this fall. (Tr. 377.) In addition, December 2011, x-rays showed a deformity of Deiter's right clavicle, which also appeared to be related to his October 2008 fall. (Tr. 378.) Likewise, an MRI of Deiter's cervical spine in February 2013 yielded largely normal results, with no displacement, and with only mild to moderate disc degeneration. (Tr. 373-74.)

         The second mishap which Deiter alleged contributed to his on-going disability took place in August of 2014 when Deiter accidentally fell through a plate glass window suffering a laceration to his right upper arm, which caused damage to his triceps muscle, neighboring tendons, and his ulnar nerve. (Tr. 479-83.) Deiter underwent successful surgery to repair the laceration, as well as the tendon and nerve damage. (Tr. 479-80.) In the immediate aftermath of this surgery it was noted that Deiter was resting comfortably; he denied severe pain and was able to move all digits on his right hand. (Tr. 483.)

         Deiter continued to receive follow-up care for this injury and medical records indicated that he made progress in his recovery. Thus, in October 2014, Marshall Miles, D.O., observed that Deiter was doing well, with no evidence of a claw hand and progressing Tinel's sign, indicating healing of the ulnar nerve. Dr. Miles wrote that he was pleased with Deiter's progress. (Tr. 551.) Two months later, in December 2014, Deiter reported no change in medical history, with no chest pain, no pain in his arm or hand, and normal lung function, and Dr. Miles's physical examination was normal, except for loss of sensation and strength in the right hand and elbow. (Tr. 552.)

         Deiter also underwent physical therapy for this injury, and progress reports from his physical therapist at Pottsville Area Physical Therapy documented steady medical progress, while reflecting some residual impairment in his right hand. For example, in October 2014, the physical therapist noted “improvement in the mobility of [Plaintiff's] right hand. He now has active full hand closure. . . . He has improved sensation over his index finger; however, his 5th finger continues to have significant sensory deficits. He continues to present with a significant grip strength deficit.” (Tr. 553.) The therapist observed continued improvement in December 2014, with pinch grip improved to 16 pounds on the right hand, versus 20 pounds on the left hand. (Tr. 554.) Deiter's grip strength continued to improve to between 40 and 78 pounds on the right hand when measured with a dynamometer versus 82 to 120 pounds on the left hand. (Tr. 554.)[3]

         During the period when he experienced the alleged onset of this disability in 2012, Deiter received episodic, and fairly conservative, medical care. Moreover after 2013, it appeared that Deiter received no further on-going care for his 2008 injuries, and only resumed active medical care after his August 2014 injury in which he fell through a plate glass window. From October 2008 through January 2013, Deiter was seen and treated by a primary care physician, Dr. Darhun, on approximately six occasions. (Tr. 338-357.) During these encounters Dr. Darhun generally documented that Deiter was doing well and feeling okay, although in 2012 and 2013, Deiter began increasingly complaining of pain following his work as a roofer. (Id.) Dr. Darhun's clinical encounters with Deiter, however, were infrequent, and episodic, and the treatment he prescribed was both conservative and limited to pain-management through medication. (Id.) Further, it appears that Deiter was not seen or treated by Dr. Darhun after 2013. Although Dr. Darhun did not see or treat Dieter after January 2013, both in 2013 and later in 2015, Dr. Darhun opined that Deiter was totally disabled. (Tr. 353-358; 547-48.) The clinical basis for these opinions was unclear from Dr. Darhun's own medical records, and the doctor's 2015 opinion was rendered some two years after the physician's last documented clinical encounter with Deiter.

         Deiter was seen and treated by Dong Ko, M.D., a practitioner at Comprehensive Pain Centers, for eighteen months between winter 2011 and summer 2013. (Tr. 415-40.) Dr. Ko treated Deiter's reported chronic pain with Percocet, Ibuprofen, and nerve block injections. (Tr. 415-16, 418-19, 421-22, 424-25, 427-28, 430-31, 432-33, 434-35, 437-38 440, 441, 443.) On a ten-point scale, Deiter rated his pain as ranging between 3/10 and 6/10 during the period of treatment (Tr. 415-16, 434-35, 441-43.) During that period, Deiter's medication regimen did not change, and physical examinations were largely consistent-they were normal but for limited range of motion on the right side, diminished strength to the right, and limited abduction and external rotation on the right side. In addition, Dr. Ko noted some tenderness and limited flexion and rotation in the spine. (Tr. 415-16, 418-19, 421-22, 424-25, 427-28, 430-31, 432-33, 434-35, 437- 38, 440, 441, 443.) Dr. Ko's treatment records also consistently documented that Deiter was not in acute distress and indicated that Deiter was stable on the medication regimen prescribed for him. (Id.) Deiter ceased treating with Dr. Ko in July 2013, and there is no further record of pain management care for Deiter.

         It was against this medical backdrop that on April 11, 2013, Deiter protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Tr. 112-113.) In this application, Deiter alleged he had been disabled since July 18, 2012. (Id.) According to Deiter, his claim of disability is based upon the following:

Chronic pain due to injuries from 25 ft. fall, pain from left acetabular fracture, left inferior ramus fracture, rib fractures R1, R2, R3, R4, R5, R6, R7, R8, R9, C8T1, L8 & L9, nerve root injury, sternum fracture, right transverse process fractures 1-9, shoulder separation, torn tendon, sternoclavicular dislocation, severe sternum and right posterior rib pain, numbness in right hand, scarred diaphragm, high blood pressure, drowsiness, and since I take pain medications on a daily basis, I have balance issues from the fall in 2008.

(Tr. 135.) At the time of Deiter's application, and the alleged onset date of his disability, he was in his late 40's and thus was defined as a “younger individual” according to the regulations promulgated under the authority of the Act. (Tr. 130.) See 20 C.F.R. §§ 404.1563(c), 416.963(c) (defining a younger person as one who is under age 50 and, generally, whose age will not seriously affect his ability to adjust to other work). Deiter graduated from high school and during his high school years, he was enrolled in vocational training classes. (Tr. 59.) He had a driver's license and typically drove short distances two to three times per week. (Tr. 58.) Deiter lived with his wife and his son. (Tr. 57.) The only past work experience Deiter completed was working as a roofer, work he performed from July 1984 through July 18, 2012. (Tr. 165.)

         Along with his disability application, Deiter submitted an Adult Function Report which described his activities of daily living. (Tr. 147-154.) While this report was plainly prepared to describe Deiter's subjective sense of his own physical limitations, the report was signed by Deiter's wife. (Id.) A fair reading of the report, however, reveals that it is not a third-party medical report, but rather is simply a transcription of Deiter's own subjective limitations, prepared by Deiter's spouse but intended to describe Deiter's own sense of his physical state.

         Deiter's disability application was initially denied on August 6, 2013 (Tr. 96-100) and on August 29, 2013, he sought a hearing to contest the denial. (Tr. 101.) On January 20, 2015, the ALJ conducted a hearing considering Deiter's disability application. (Tr. 53-82.) At the hearing, the ALJ heard testimony from Deiter and an impartial vocational expert. (Id.)

         Following the hearing, on March 13, 2015, the ALJ issued a decision denying Deiter's application for disability benefits. (Tr. 12-30.) In this decision, the ALJ first found that Deiter met the insured requirements of the Act through December 31, 2017. (Tr. 17.) At Step 2 of the five-step sequential analysis that applies to Social Security disability claims, the ALJ concluded that from his alleged onset date through February 2013, Deiter experienced the following severe impairments: history of closed rib fractures in 2008, costochondritis, and brachial plexus injury. (Tr. 17.) From February 2013 through August 2014, the ALJ concluded that Deiter experienced the following severe impairments: cervical degenerative disc disease and thoracic degenerative disc disease with protrusions.

         (Id.) Finally, the ALJ concluded as of August 2014, Deiter experienced the following severe impairments: right upper extremity artery and ulnar nerve lacerations status-post complete transection of ulnar nerve and triceps musculature and tendons. (Id.) At Step 3 of this sequential analysis, the ALJ concluded that none of Deiter's impairments met a listing that would define him as per se disabled. (Tr. 18-19.)

         Before considering Step 4, the ALJ fashioned Deiter's residual functional ...

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