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Browner v. Berryhill

United States District Court, E.D. Pennsylvania

June 19, 2018

NANCY A. BERRYHILL, [1] Defendant.


          Slomsky, J.


         Before the Court are the Objections of Plaintiff Franklin Dale Browner to the Report and Recommendation of United States Magistrate Judge Timothy R. Rice. (Doc. No. 16.) On December 2, 2016, Plaintiff filed a Complaint against Defendant Nancy A. Berryhill, acting Commissioner of Social Security Administration (“SSA”), seeking review of the final decision of Defendant, which denied Plaintiff's claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-434. (Doc. No. 3.) On July 30, 2017, the Court referred this matter to Magistrate Judge Rice for a Report and Recommendation (“R&R”). (Doc. No. 14.) On October 18, 2017, Magistrate Judge Rice issued the R&R, recommending that Plaintiff's request for review be denied. (Doc. No. 15.) On October 31, 2017, Plaintiff timely filed Objections to the R&R. (Doc. No. 16.) On November 13, 2017, Defendant filed a Response to Plaintiff's Objections (Doc. No. 18), and on November 21, 2017, Plaintiff filed a Reply to Defendant's Response. (Doc. No. 19.) On December 1, 2017, Defendant filed a Corrected Response to Plaintiff's Objections. (Doc. No. 23.)

         Pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the portions of the R&R to which objections have been made. After independently reviewing the Administrative Record (“Record”) and for reasons that follow, the Court will adopt and approve the R&R (Doc. No. 16) in its entirety.


         A. Factual and Procedural History

         Plaintiff Franklin Dale Browner was born on August 3, 1963[2] and was forty-seven years old on December 15, 2010, the date his alleged disability began. (Administrative Record (“R.”) at 33.) Plaintiff has a tenth-grade education and does not have a General Education Development (“GED”) degree. (R. at 34, 50.) Plaintiff previously worked as a nurse's assistant, a housekeeping aide, a trailer loader and unloader, and a furniture framer. (R. at 35-37.) At the time of his administrative hearing, he had not received any income since December 2010 and was on welfare. (R. at 33-34.) At his hearing, Plaintiff stated that he was living in a house with his retired mother and her two young adopted children. (R. at 34-35, 71.)

         On April 11, 2012, Plaintiff applied for DIB, alleging a disability beginning on December 15, 2010. (R. at 11.) It was based upon fibromyalgia[3]; neck pain; back pain; shoulder pain; hip pain; knee pain; and arthritis. (R. at 96.) His claim was denied, and Plaintiff requested a hearing. (R. at 6.) An administrative hearing was held on July 3, 2013 in Philadelphia, Pennsylvania before Administrative Law Judge Jennifer M. Lash (the “ALJ”). (R. at 27.) At the hearing, Plaintiff and Sherry Pistone-Tiversi, an impartial vocational expert (“VE”), testified. (Id.) Plaintiff was represented by counsel.[4] (Id.)

         Plaintiff testified at the hearing that he stopped working in December 2010 because his father, who took him to work, got sick and Plaintiff had no way of getting to his job. (R. at 35, 41.) He claimed that he suffers from severe pain, particularly on the left side of his body, running from his neck down to his legs. (R. at 49.) He has trouble sitting and standing for over ten minutes, and can only walk for approximately ten minutes. (R. at 45.) At the time of his hearing, Plaintiff had been using a cane for approximately four months without a doctor's prescription or recommendation. (Id.) He testified that his treating rheumatologist was Dr. Lawrence Brent. (R. at 43, 97.) With respect to his daily routine, he told the ALJ:

Well I get up, I wash myself, I take my medicine, I cook me something to eat, and then I sit down and, then the medicine start working, and then I fall asleep and wake up maybe a couple hours or maybe 45 minutes. Maybe look at some TV and it's about it.

(R. at 46.)

         Plaintiff testified that he typically sleeps for approximately forty-five minutes to one hour because of his pain. (R. at 53.) He frequently takes a brief nap during the day because of the minimal rest he has. (Id.) He uses a high chair to sit on while he microwaves frozen meals. (R. at 52-53.) He also uses it in the shower while he washes himself. (R. at 52-53, 362.) Plaintiff said that sometime in the summer of 2012, he suffered a dog bite on his left hand. (R. at 41-42.) Because of this dog bite, he has difficulty “squeezing things and moving [his] wrist, and basically picking up things.” (R. at 43.) He has not received any therapy for this injury but wears a brace prescribed by an orthopedic doctor. (Id.) Moreover, Dr. Brent advised Plaintiff to attend physical therapy but Plaintiff is on a waitlist and has not yet received therapy. (R. at 44.)

         When asked how his symptoms were progressing, Plaintiff stated they were worsening:

Q: And how is - - which symptoms are worsened?
A: My back center, my back lower lumbar, my shoulders, my knees, my hips, my ankles, practically my whole body. Okay.
Q: And what's going on in all those parts of your body?
A: I'm having awful pain, very awful pain.

(R. at 53-54.)

         The VE testified that Plaintiff's past work as a nurse's assistant and a furniture assembler were both classified as semi-skilled and heavy work in the Dictionary of Occupational Titles. (R. at 58.) The ALJ posed a series of hypotheticals to the VE. She asked if a person of Plaintiff's age, physical limitations, education, and work history would have the skills necessary to perform unskilled occupations. (R. at 58-60.) The VE explained that given Plaintiff's profile, any work that he could do would have to be light. (R. at 59.) Assuming Plaintiff could perform such work, the VE testified that he could perform as a linen folder, an inspector, or a garment sorter. (R. at 59-60.)

         On October 21, 2013, the ALJ denied Plaintiff's claim for DIB. (R. at 121, 127.) On February 11, 2015, the SSA's Appeals Council remanded the decision back to the ALJ with instructions to evaluate the fibromyalgia in accordance with Social Security Ruling (“SSR”) 12-2P[5] and address non-medical opinion statements given by Plaintiff's mother in support of his DIB application.[6] (R. at 127-129.)

         On June 18, 2015, Plaintiff appeared before ALJ Lash for a second hearing. (R. at 67.) Since the 2013 hearing, Plaintiff had not received additional education or obtained employment. (R. at 70-72.) Once more, he testified to the pain he experienced, complaining of “fibromyalgia and a little bit of arthritis in [his] back and . . . widespread pain going through [his] body.” (R. at 73.) When asked how long Plaintiff had suffered from this pain, he stated:

I've been having this pain for about three years now. I mean, actually I had it before I came down to Philadelphia but it got worse as I'm here so let's say I had this pain at least about, I'd say 20 years out of my life but it got worse so I went to a doctor and got it checked out and they diagnosed me with fibromyalgia.

(R. at 73.)

         He again complained about his physical limitations as a result of his pain, such as the discomfort he experiences while sitting and standing for several minutes. (R. at 74, 82.) He also described the same side effects from his medications that he testified about in 2013. (R. at 78.) He identified Dr. Lawrence Brent again as his rheumatologist and Dr. Azra Qureshi as his primary care physician. (R. at 76.) Plaintiff additionally told the ALJ that he experienced mood changes, specifically feelings of hostility and depression. (R. at 79.)

         Another VE, Nancy Harter, was also present at Plaintiff's 2015 hearing, and responded to the following questions from Plaintiff's counsel and the ALJ:

Q: What I would like to know is if everything that the claimant testified to today were accepted by you and considered by you is there any type of work that he can do?
A: Well, I can't respond to a complete summary if you can give me specifics there. I know he talked about how far, I mean, how much he could lift, et cetera and the problems he had with his hands. If you could just put for me - -
ALJ: Let's just [say] for example an individual who would spend 20 hours a day in bed - -
VE: No.
ALJ: So that individual probably wouldn't even be present at work.
VE: No.

(R. at 94.)

         When asked about his daily activities, Plaintiff reiterated that he has trouble sitting and standing for extended periods of time. (R. at 84.) With respect to his daily activities, he testified that he rarely leaves the house except to smoke a cigarette or to go shopping with his family. (R. at 87.) Plaintiff also stated that he goes for a walk twice a week for approximately a quarter of a mile before his stiffness sets in. (Id.) He testified that he is able to do light chores, such as cleaning up after a meal and washing dishes. (R. at 88.) Plaintiff remarked that he has difficulty carrying lightweight items throughout the day. (Id.)

         On August 24, 2015, the ALJ denied Plaintiff's claim. (R. at 12.) The ALJ determined that Plaintiff had four severe impairments: severe fibromyalgia; degenerative disc disease[7] of the lumbar spine; degenerative disc disease of the thoracic spine; and de Quervain's disease.[8] (R. at 14-16.) In applying the SSA's five-step sequential process[9] and considering Plaintiff's treatment history, medications, and daily activities, however, the ALJ found that these impairments did not meet or were medically equal to the severity of an impairment in a Listing.[10] The ALJ also concluded that Plaintiff had the Residual Functional Capacity (“RFC”) to perform limited light work.[11] (R. at 17.) She was not persuaded that Plaintiff's impairments were as severe as alleged. (R. at 19.) She also gave little weight to Dr. Brent's assessment of Plaintiff because it was “not well supported by medically accepted clinical and diagnostic findings” and was “inconsistent with the radiological studies of record and other substantial medical evidence.” (Id.) The ALJ also gave little weight to Plaintiff's mother's opinion, given that they were “lay opinions based upon casual observation, rather than objective medical examination and testing.” (Id.) She also noted the mother's potential for bias in favor of her son. (Id.)

         On December 2, 2016, Plaintiff requested judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). (Doc. No. 3.) He alleges that the ALJ erred by failing to: (1) properly weigh the medical opinion of his treating physician; (2) fully credit his allegations of disabling pain; (3) adequately develop the medical record; and (4) support the RFC assessment with substantial evidence. (Doc. No. 11 at 7-11; Doc. No. 15 at 1.)

         As previously noted, on July 14, 2017, the Court referred the matter to United States Magistrate Judge Timothy R. Rice for an R&R (Doc. No. 14), and on October 18, 2017, Magistrate Judge Rice issued the R&R recommending that Plaintiff's Request for Review be denied. (Doc. No. 15.) On October 31, 2017, Plaintiff timely filed the Objections that are now before this Court for consideration. (Doc. No. 16.)

         B. Relevant Social Security ...

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