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Franks v. Berryhill

United States District Court, M.D. Pennsylvania

April 24, 2018

Craig A. Franks, Plaintiff
Nancy A. Berryhill Acting Commissioner of Social Security, Defendants


          Richard P. Conaboy United States District Judge

         I. Procedural Background.

         We consider here Plaintiff Craig A. Franks' appeal from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”) regarding his application for Disability Insurance Benefits (“DIB”). Plaintiff's application was initially denied at the administrative level on December 20, 2013 whereupon he filed a written request for a hearing. A hearing was held on May 12, 2015 before Administrative Law Judge (“ALJ”) Gerard W. Langan. On September 3, 2015 the ALJ issued a decision denying Plaintiff's application for benefits. The ALJ's decision was approved by the Appeals Council by letter dated April 5, 2017. The Appeals Council's letter constitutes a final decision and vests this Court with jurisdiction pursuant to 42 U.S.C. § 405g.

         II. Testimony before the ALJ.

         A hearing was conducted in Wilkes-Barre, Pennsylvania on May 12, 2015. ALJ Langan presided and heard testimony from the Plaintiff and a Mr. Keating, a vocational expert (“VE”). The testimony may be summarized as follows.

         Plaintiff resides in Athens, Pennsylvania with his girlfriend and his daughter who was two years of age on the date of the hearing. Plaintiff stands five feet eleven inches tall and weighs one hundred and seventy eight pounds. He was born August 17, 1964. He completed high school in a regular class and then went into the navy. He was honorably discharged from the navy. (R. 41-42).

         Plaintiff briefly recounted his work history from 2000 to 2015. In 2000 he worked at a machine shop building small parts that weighed five to ten pounds. This work was performed while standing. He then performed similar work for a succession of employers for a period of years and then worked for a time for a firm that installed rolled roofing. Later he worked for Ingersoll Rand as a machinist who setup and ran various machines. This work was heavier in nature and involved lifting twenty to twenty-five pounds at times while standing. He then worked at Amco Manufacturing doing the same type of work until he became disabled in May of 2012. After a period of inactivity, he attempted to return to work at a landscaping business but after working there for three months he resigned because the work was physically too demanding and his hands were going numb. At the time of his hearing, Plaintiff was not receiving unemployment compensation benefits or any military pension. (R. 42-46).

         Plaintiff testified that he cannot work because of general fatigue and pain from his neck down to his feet. Even walking several hundred feet out to his mailbox is tiring for him. He gets very minimal sleep. Various medicines that he takes produce side effects including blurred vision, diarrhea, drowsiness, and fatigue. (R. 46-49). Plaintiff stated that he typically spends his days sitting in the house with his daughter. His cooking is limited to heating things in a microwave oven. He does not do laundry, cut grass, or shovel snow. His sons take care of those tasks. He has not driven a car since 2012. He goes grocery shopping with his girlfriend and helps to the extent he is able. He testified that he can lift a gallon of milk with difficulty. He can sit for fifteen minutes to one half hour before his legs begin to go numb. He then must stand for five to ten minutes until the feeling returns to his legs. He estimates that he can stand for up to thirty minutes at a time. He estimates further that he can walk about one hundred yards before he would need to take a break. (R. 49-51).

         On questioning by his attorney, Plaintiff spoke about pain in his hands. He described the pain as constant. His medication “takes the edge off” but does not completely control the pain. He stated that he cannot use as much of the medicine as he might like because he must be alert to watch his two year old daughter. He testified that he was going to have nerve conduction studies related to his carpal tunnel syndrome before undergoing surgery. His carpal tunnel syndrome affects both hands. His hand problems make it difficult for him to handle small objects. He can no longer solder things or repair his own glasses - - things he was formally able to do. He needs assistance to dress and to wash his hair because pain in his shoulders limits his ability to lift his hands over his head. This difficulty to lift his hands is bilateral. His use of his right arm is also limited by a torn bicep. (R. 51-54).

         Plaintiff reiterated his earlier testimony that he can stand for about thirty minutes but added that standing any longer causes his feet to go numb and his legs to shake. His difficult sleeping makes it necessary to nap each day for about one and one-half hours. He accomplishes this by napping at the same time as his daughter. As a side effect of his medications he must go to the bathroom six to eight times per day. Despite the frequency of these visits he sometimes has “accidents”. (R. 54-55).

         Mr. Keating, a vocational expert, also testified. He stated that he had reviewed Plaintiff's work history and that his testimony would be consistent with the Dictionary of Occupational Titles. In response to questions from Mr. Keating, Plaintiff stated that his long series of jobs as a machinist never involved the need to do heavy work such as fixing machines that had broken down by climbing inside them. His jobs were lighter exertional level and involved running machines during the production process. He learned his various jobs as a machinist while doing them and without benefit of any vocational schooling as a machinist. (R. 58-60). Mr. Keating stated that Plaintiff was considered a “younger individual” on his alleged onset date in May of 2012. He characterized Plaintiff's various machinist jobs as skilled, light exertional level employment. Plaintiff's employment as a roofer qualified as skilled, heavy exertional work. Mindful of Mr. Keating's assessment of Plaintiff's work history, the ALJ asked Mr. Keating a hypothetical question in which he was to assume the following: a person of the same educational level, age, and work experience as Plaintiff; a person who could perform light work with additional limitations including avoidance of unprotected heights and industrial machinery; the inability to climb ropes, ladders, or scaffolds; only occasional climbing of ramps or stairs; and only occasional exposure to temperature extremes, humidity, wetness, and vibration. Based on the limitations imposed by the hypothetical question, Mr. Keating testified that Plaintiff would be unable to perform any of his past relevant work. Mr. Keating testified also that a person that fits the profile of the hypothetical claimant would be capable of performing various jobs that exist in significant numbers in the national economy. These jobs included: assembler of small products; pricer; and general cashier. Each of these jobs would be categorized as “light, unskilled”. (R. 61-63).

         The ALJ then modified the hypothetical question to include the additional limitations such that the hypothetical claimant would need to alternate between sitting and standing every thirty minutes and would be capable of no more than occasional use of pedals or foot controls. Given these additional limitations, the VE stated that the hypothetical claimant would be unable to function as a pricer, but would be able to function as a general cashier, an assembler of small products, and as a packer, a light, unskilled job. (R. 63-64). The ALJ then altered the hypothetical question once again to include all the limitations posed in both the first and second hypothetical questions with the additional limitation that the hypothetical claimant could work only at a sedentary job. The VE stated that such a person could find work as a surveillance monitor or a document preparer. When the ALJ added the additional limitation that the hypothetical claimant would be off task more than 20 percent of the workday due to pain and the need to change positions, the VE testified that such a person would be unable to maintain any employment. (R. 65-67).

         The Plaintiff's attorney briefly examined the VE. He asked the VE to focus on the first hypothetical question that had been phrased by the ALJ and to add to that hypothetical question the limitation that the hypothetical claimant could only occasionally use both his hands to perform word activity. The VE then stated that such an individual could not sustain employment because all the jobs that he had referenced required frequent use of the hands. (R. 67-68).

         III. ALJ Decision.

         The ALJ's decision (Doc. 9-2 at 11-27) was unfavorable to the Plaintiff. It included the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2018.
2. The claimant has not engaged in substantial gainful activity since May 12, 2012, the alleged onset date.
3. The claimant has the following severe impairments: ankylosing spondylosis and degenerative disc disease of lumbar spine.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he must avoid unprotected heights and industrial machinery. He can never climb ropes, ladders or scaffolds but can occasionally climb ramps and stairs. He is allowed occasional exposure to temperature extremes, humidity, wetness and vibration. He is allowed occasional use of both lower extremities for the operation ...

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