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Drowell v. Berryhill

United States District Court, W.D. Pennsylvania

July 25, 2018



          Donetta W. Ambrose United States Senior District Judge.


         Plaintiff Nathaniel J. Drowell ("Drowell") brings this action pursuant to 42 U.SC. § 405(g) for review of the ALJ's decision denying his claim for a period of disability and disability insurance benefits ("DIB")[2] as well as a claim for supplemental social security ("SSI"). He alleges a disability beginning on January 16, 2014. (R. 17)[3] Following a hearing before an ALJ, during which time both Drowell and a vocational expert ("VE") testified, the ALJ denied his claim. Drowell appealed. Pending are Cross Motions for Summary Judgment. See ECF docket nos. [9]and [13].

         Legal Analysis

         1. Standard of Review

         The standard of review in social security cases is whether substantial evidence exists in the record to support the Commissioner's decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Substantial evidence has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is "not merely a quantitative exercise." Gilliland v. Heckler 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker 710 F.2d 110, 114 (3d Cir. 1983)). "A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g., that offered by treating physicians)." Id., The Commissioner's findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo review of the Commissioner's decision or re-weigh the evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by substantial evidence, a court is bound by those findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See, 5 U.S.C. §706.

         To be eligible for social security benefits, the claimant must demonstrate that he cannot engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. § 423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). The Commissioner has provided the ALJ with a five-step sequential analysis to use when evaluating the disabled status of each claimant. 20 C.F.R. § 404.1520(a). The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment; (3) if the claimant has a severe impairment, whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P, appx. 1; (4) if the impairment does not satisfy one of the impairment listings, whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy, in light of his age, education, work experience, and residual functional capacity. 20 C.F.R. § 404.1520. The claimant carries the initial burden of demonstrating by medical evidence that he is unable to return to his previous employment (steps 1-4). Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts to the Commissioner to show that the claimant can engage in alternative substantial gainful activity (step 5). Id. A district court, after reviewing the entire record, may affirm, modify, or reverse the decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

         2. The ALJ's Analysis

         At step one, the ALJ found that Drowell had not engaged in substantial gainful activity since January 16, 2014, the amended onset date. (R. 19) At step two, the ALJ concluded that Drowell has the following severe impairments: cervical myelopathy; right shoulder rotator cuff tendonitis / adhesive capsulitis; right hip degenerative joint disease; diabetes; and anemia. (R. 19) The ALJ referenced some other conditions such as hyperlipidemia and hypertension, but found that they did not constitute "severe impairments." (R. 20)

         At step three, the ALJ concluded that Drowell does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, Appendix 1. The ALJ considered Listing 1.02 (dysfunction of a major weight-bearing joint due to any cause) as well as section 9.00 for guidance on evaluating endocrine disorders. (R. 21)

         Prior to engaging in step four, the ALJ assessed Drowell's residual functional capacity ("RFC").[4] The ALJ found Drowell able to perform a range of light work, with some restrictions. (R. 21-26)

         At step four, the ALJ determined that Drowell is capable of performing past relevant work as a can filling and closing machine tender. (R. 27) Consequently, benefits were denied and the ALJ did not continue with the analysis.

         3. Use of a Cane

         Drowell contends that the RFC is deficient because it does not account for his use of a cane. "To establish that a hand-held device is medically required, there must be medical evidence establishing both the need for the device and the circumstances in which the device is required." Soto v. Comm'r. of Soc. Sec, Civ. No. 17-89, 2018 WL 355138, at * 5 (D. N.J. Jan. 10, 2018), citing, Titles II & XVI: Determining Capability to Do Other Work- Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work, SSR 96-9p, 1996 WL 374185, at * 7 (July 2, 1996). In Howze v. Bamhart, the Third Circuit Court of Appeals rejected a claimant's contention that an ALJ's failure to address his use of a cane required a remand. See Howze v. Bamhart, 53 Fed.Appx. 218 (3d Cir. 2002). The claimant testified that his physician provided him with a cane to address left-leg weakness and the record included a reference by a physician to a "script" for a cane. Howze, 53 Fed.Appx. At 222. Additionally, the physician had checked the box for "hand-held assistive device medically required for ambulation" in a report. Id. The Court noted that "[o]ther than that, there are multiple references to the fact that appellant uses a cane but no discussion of its medical necessity." Id. Quoting from SSR 96-9p, the Third Circuit Court found that "[t]he evidence presented by appellant was insufficient to support a finding that his cane was medically necessary." Id. See also, Starks v. Colvin, Civ. No. 16-6062, 2017 WL 4053755, at *4 (E.D. Pa. Sept. 12, 2017) (rejecting claimant's objection to the ALJ's exclusion of a cane in the RFC, stating that a physician's observations of the claimant's use of a cane is insufficient; "[t]here is no prescription for a cane or any indication why a cane is needed to aid Mr. Stark's walking. We cannot infer Mr. Stark's medical need for a cane based on his history of osteoarthritis in the ...

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