United States District Court, M.D. Pennsylvania
Carl E. Reynolds, Plaintiff
Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant
RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE
consider here Plaintiff's appeal from an adverse decision
of the Social Security Administration (“SSA”) or
(“Agency”) regarding his application for
Disability Insurance Benefits (“DIB”) or
Supplemental Security Income Benefits (“SSI”).
Plaintiff's application was initially denied at the
administrative level whereupon he requested a hearing before
an Administrative Law Judge (“ALJ”). He received
that hearing on March 3, 2016. The ALJ denied Plaintiff's
application by written decision dated March 24, 2016. (Doc.
8-2 at 8-25). The Appeals Council denied Plaintiff's
request for review by notice dated September 19, 2017.
Plaintiff then appealed to this Court by Complaint (Doc. 1)
dated October 4, 2017. This Court has jurisdiction over this
matter pursuant to 42 U.S.C. § 405g.
Testimony before the ALJ.
hearing was conducted before ALJ Michelle Wolfe in
Wilkes-Barre, Pennsylvania on March 3, 2016. Testimony was
taken from the Plaintiff and from Pat Tularey, a vocational
expert (“VE”). Plaintiff was represented at the
hearing by attorney Jonathon P. Foster. The testimony may be
summarized as follows.
resides in a two bedroom trailer in Wysox, Pennsylvania with
a roommate. He was born on November 19, 1967 and was
forty-eight years of age on the date of the hearing. He
indicated that he became disabled effective January 29, 2012
but, due to the res judicata effect of the final decision on
a previous claim, his attorney indicated that the onset date
of Plaintiff's disability should be considered January
10, 2014. (R. at 64).
stated that he is five feet nine and one-half inches tall,
weighs 181 pounds, and is right hand dominant. He has a
current driver's license but stated that he has not
driven in more than one year because of the effects of
medication that he takes and his lack of access to a vehicle.
He completed high school in a vocational/technical program
with emphasis on building trade maintenance. He is divorced
with a sixteen year old daughter of whom he has joint custody
with his former spouse. His daughter's primary residence
is with her mother. Plaintiff is in constant pain,
experiences memory loss, and becomes “skittish”
around other people. He last worked in 2012 as a laborer in
the gas industry on a “frac site”. (R. 64-66).
received injections in February and July of 2015 related to
his back symptomology. He goes once each week to see a
counselor and once each month to see a psychiatrist. He has
had one hospital admission since 2012 which was caused by
chest pains. He was prescribed nitroglycerine for these chest
pains, continues to take it, and is on several other
medications as well. He experiences side effects from these
medications including weight loss, memory loss, fatigue, and
trouble sleeping. (R. 67-69). Plaintiff usually goes to bed
about 3:00 a.m. and rises at about 11:00 a.m. He does no
chores at home unless his roommate is present to help him
with his balance. His balance is compromised to the point
that he has fallen out of the shower twice and into the stove
once. He does no housework of any kind. He does no gardening
or lawn work of any kind. His roommate does all shopping
without assistance of any kind from him. He does not read nor
does he use a computer. (R. 69-70).
smokes approximately six cigarettes each day and is trying to
quit smoking. He turns the television on during the day
“just to hear other people's voices.” Other
than paying casual attention to the television, Plaintiff
does little else all day. He last went to physical therapy in
December of 2014 but continues to try to perform stretching
movements for his back pain. He estimates that he can walk
ten to fifteen feet with the assistance of a cane. He reports
that he can stand for five to ten minutes before needing to
sit down due to tingling and burning in his feet, knees, and
hips. When he sits he begins to experience the same
sensations in his hands. He neither lifts nor carries
anything. (R. 71-72).
examination by his attorney, Plaintiff stated that he was
identified as a special education student from grades six
through twelve. He stated that he spends most of the day
laying on his side on a couch. His doctors have suggested to
him that the only remaining alternative to afford him relief
from his back and leg pain is another surgery. Toward that
end, he is going to a consultation at Geisinger Medical
Center. (R. 73-74).
stated that he performs no household chores including
vacuuming, sweeping, and taking out the trash. He never
entertains friends or visitors, never attends social
activities, and never goes out to eat. He stated that he has
problems being around others and he feels the need to get
away from them. He tries to deal with such situations but
finds it difficult. (R. 75).
worked at various jobs from 1984 through some date in 2012.
He currently takes the medicine Norco four times daily and he
finds that it impairs his ability to concentrate. He stated
that he gets four to five hours sleep on average each night.
He experiences a tingling and burning sensation constantly in
his dominant (right) hand. (R. 76-77).
vocational expert (“VE”) also testified. The VE
reviewed Plaintiff's work history in the preceding
fifteen years and found that Plaintiff's work had all
been classified as either medium or heavy exertional level
and as unskilled or, in one instance, semi-skilled work.
After that recitation, the ALJ asked the VE to assume a
hypothetical claimant of the same age, educational level, and
work history as the Plaintiff who has the residual functional
capacity to work at a light exertional level with additional
limitations including: frequent lifting/carrying up to ten
pounds and occasional lifting/carrying up to twenty pounds;
standing or walking no more than two hours in an eight hour
workday; no pushing or pulling with the lower extremities; no
exposure to cold, wetness, humidity, and hazards including
moving machinery and unprotected heights; only occasional
balancing, stooping, crouching, crawling, and kneeling; no
use of ladders, stairs, or scaffolds; and limitation to a
low-stress work environment confined to simple, routine tasks
and only occasional interaction with the public, co-workers,
and supervisors. Based on these assumptions, the VE stated
that the hypothetical individual would be unable to perform
any of Plaintiff's past relevant work. (R. 77-80).
stated, however, that the hypothetical individual could
perform other jobs that exist in significant numbers in the
national economy including “bench worker” and
“metal and plastics worker”; These jobs were
categorized by the VE as “sedentary” and the
hypothetical individual's need for a cane or need to
transfer positions regularly from sitting to standing would
have no effect on the hypothetical individual's ability
to perform these jobs. However, if additionally limited such
that the hypothetical individual would need additional breaks
and be off task for than 20% of the workday, the vocational
expert responded that the hypothetical individual could not
maintain full time employment. (R. 81-82).
Plaintiff's attorney asked the VE whether, assuming the
same hypothetical individual and further assuming he also had
impairment in his dominant hand that precluded more than
occasional gripping and fingering, that hypothetical
individual would be able to perform as a “bench
worker” or “plastics worker”. The VE
responded that, given the hand limitations, the hypothetical
individual would be unable to perform the jobs identified.
The VE testified further that, if the hypothetical individual
was limited to sitting four hours in a workday or that the
use of narcotic medications would cause him to be off work
20% of a workday, that hypothetical individual would be
unemployable. (R. 83-87).
Constance M. Sweet has been Plaintiff's primary care
physician throughout the relevant (post January 9, 2012) time
period. The record reveals the Dr. Sweet saw him on at least
twenty-three occasions between Plaintiff's alleged onset
date and the time of his hearing. On each of these occasions
Dr. Sweet diagnosed degenerative disc disease of the cervical
and lumbar spine, depressive disorder, and gastroesophageal
reflux disease (GERD). Dr. Sweet's progress notes
uniformly assessed that Plaintiff was alert and in “no
distress” and, on all but a few occasions (December 19,
2012; March 25, 2014; and May 8, 2015), that Plaintiff
presented with “normal gait”. On a few occasions
Dr. Sweet recorded extreme emotional distress and anxiety
which caused her to refer Plaintiff to a psychiatrist.
(Exhibits 8-10 through 8-13).
of objective testing, Dr. Sweet referred Plaintiff for an MRI
on May 15, 2014. The MRI disclosed bulging discs at ¶
3-4, L4-5, and L5-S1 without focal herniation. Degenerative
arthritis of the facet joints combined with a bulging disc
was found to produce “a mild degree of central canal
spinal stenosis at ¶ 4-5.” (R. 422).
Sweet referred Plaintiff to Dr. Bruce H. Levin at Memorial
Hospital in Towanda, Pennsylvania for cervical foraminal
epidural steroid injections. These procedures were performed
on July 8, 2015 at ¶ 4-5 and C6-7. (R. 499-5). Dr.
Sweet's office note of August 7, 2015 (R. 572) reports
that the injections had not helped much thus far. Her office
note of November 8, 2015 (R. 578) reports that the injections
had failed and that a spinal stimulator would be prescribed.
Plaintiff indicated at his hearing that the spinal stimulator
had proven unhelpful. (R. 73-74).
8, 2015 Dr. Sweet executed a Medical Source Statement (R.
49-493)in which she opined that Plaintiff: could never lift
or carry any weight; could sit, stand and walk for a total of
no more than six hours in a day; needs to lay down
frequently; needs a cane to ambulate and can walk no more
than fifty feet without one; could occasionally climb stairs
and ramps but never climb ladders or scaffolds, balance,
stoop, crawl, crouch, or crawl; could never be exposed to
unprotected heights, moving machinery, humidity, dust,
pulmonary irritants, extreme cold or heat, and vibrations;
and only occasionally operate a motor vehicle. Dr. Sweet
found further that these limitations would last for twelve
months or longer.
Justine Magurno saw Plaintiff once in her capacity as a
consulting/examining physician. Dr. Magurno performed a
medical examination during which she took an oral history of
Plaintiff's complaints. Plaintiff related that he cooks
three times each week, cleans three times each week, and
shops once each week, all with the help of his girlfriend.
Plaintiff's chief physical complaint was back pain
radiating down his left leg and producing numbness in both
hands. Plaintiff described his pain as nine on a scale of
Magurno physically examined Plaintiff and found: that
Plaintiff did not appear to be in any acute distress; that
Plaintiff could stand on his heels and toes with difficulty;
that he could perform a half squat while holding onto a
counter top; that his gait was waddling, wide based, and
ataxic; that he needed no help changing his clothes or
getting on and off the examination table; and that he had
moderate difficulty rising from a chair.
neurologic examination disclosed; equal deep tendon reflexes
in all extremities; sensory loss in the left leg with
sensation preserved in the left foot; strength in all
extremities to the extent of 4/5 or 5/5; and no muscle
atrophy evident. Dr. Magurno diagnosed: (1) disc disease and
retrolisthesis in the cervical spine;(2) ataxic
gait;(3) disc disease of the lower back; and (4)
history of anxiety; attention deficit hyperactivity
disorders; and anger issues. Dr. Magurno assigned Plaintiff a
prognosis of “fair”.
Magurno also executed a Medical Source Statement in which she
indicated that Plaintiff: could occasionally lift and carry
up to ten pounds but never lift and carry more that ten
pounds; could sit for one hour at a time, stand for ten
minutes at a time and walk for five minutes at a time; could
sit for six hours, stand for one hour, and walk for
forty-five minutes in total in the course of an eight hour
workday; could walk no more than twenty feet without use of
his cane; could use his free hand to carry small objects
while ambulating with his cane; could continuously reach,
finger, and feel bilaterally, frequently handle bilaterally,
and occasionally push and pull bilaterally; could
occasionally operate foot controls bilaterally; could
frequently stoop, occasionally climb stairs and ramps, kneel
and crouch, and never balance, climb ladders and scaffolds,
or crawl; and could continuously be exposed to humidity,
dust, odors, ...