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Rohrbaugh v. Berryhill

United States District Court, M.D. Pennsylvania

April 12, 2019

DIANA J. ROHRBAUGH, Plaintiff,
v.
NANCY BERRYHILL, Deputy Commissioner For Operations of Social Security, Defendant.

          Brann, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. U.S. MAGISTRATE JUDGE.

         This is an action brought under 42 U.S.C. § 405(g), seeking judicial review of the Deputy Commissioner of Social Security's (“Commissioner”) final decision denying Diana J. Rohrbaugh's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for the preparation of the 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.

         For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED.

         I. Background and Procedural History

         On January 2, 2015, Rohrbaugh protectively filed for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging her onset date of disability as April 1, 2011. (Tr. 211).[1] Rohrbaugh also filed a Title II application for disabled widow's benefits. (Tr. 213-14). Rohrbaugh amended her alleged onset date to June 24, 2013. (Tr. 10, 69). Rohrbaugh was fifty-seven years old on her alleged disability onset date, which categorizes her “as an individual of advanced age” under the Social Security Act. (Doc. 9, at 2); see 20 C.F.R. § 404.1563(e).

         Rohrbaugh's claims were initially denied on March 13, 2015. (Tr. 102, 107). On May 8, 2015, Rohrbaugh filed a timely request for an administrative hearing that was subsequently granted. (Tr. 114, 116). With the assistance of counsel, Rohrbaugh appeared and testified before Administrative Law Judge (“ALJ”) Howard Kauffman on January 12, 2017, in Harrisburg, Pennsylvania. (Tr. 50). Impartial vocational expert, (“VE”) Patricia Posey also testified at the hearing via telephone. (Tr. 53).

         During the hearing, Rohrbaugh was asked a series of questions about her living conditions, her activities, and her medical conditions. (Tr. 53-83). Rohrbaugh testified that she lives with her brother who has a brain injury, which she explained he sustained when he was hit by a car when he was three-years-old. (Id. at 72). Rohrbaugh discussed how her brother previously lived with her father but moved in with her when her father passed away eleven years ago. (Id. at 71).

         Rohrbaugh testified that her brother helps her with the household chores. (Tr. 72). She described her brother as her “muscle” with regards to things around the house. (Id.) She stated that “he's a pretty strong guy” and that he will help her if she needs something lifted. (Id.) As far as other chores around the house, Rohrbaugh shared that her brother takes the garbage out, empties the dishwasher, cleans out the litter boxes, and helps her with the laundry by carrying the dirty laundry down to the basement and by taking the clean laundry, that Rohrbaugh has washed and folded in the basement, back upstairs. (Id.) Rohrbaugh explained that “he obviously can't do anything dangerous” and stated that “he can't run the vacuum” or do “that kind of thing.” (Id.) Rohrbaugh further remarked that she doesn't run the vacuum “that much either” herself. (Id.) Rohrbaugh testified that on a typical day she gets up, takes her “morning meds, ” then goes downstairs and talks to her brother. (Id. at 75). She remarked that “a lot of time [she and her brother] just stay upstairs in [their] rooms and talk back and forth.” (Id.) She shared that her brother “colors all day long, ” but that she usually drinks coffee, watches television, tries “to pick up a little bit around the house and maybe do some laundry because there's always laundry to do” and that she does “a lot of sitting around not doing much.” (Id.).

         Rohrbaugh testified that her husband passed away in 2014. (Tr. 72). She stated during the hearing that before he passed away that she didn't have a lot of involvement in his care. (Id.) She remarked that “he was pretty well until he actually passed.” (Id.) She shared that “he had a feeding tube which [she] would pour the liquid down, ” that she would help him by making sure his “bag was full, ” and would “hand him his medications.” (Id.) Rohrbaugh also explained that she and her husband “would drive back and forth to his cancer treatments.” (Id.) She shared that hospice helped take care of things and that she “didn't have much to do except sit with him and talk.” (Id.)

         Rohrbaugh testified that she worked as a legislative clerk for twenty-seven years. (Tr. 54). Rohrbaugh testified that she was off from work for six months for a left shoulder injury through workman's compensation. (Id. at 57). When she returned to work following her workman's compensation leave, Rohrbaugh shared that her doctor gave her a series of restrictions that she believed included that she “wasn't allowed to lift more than twenty pounds” or “to sit for more than two hours or be standing for more than two hours or walking around more than two hours.” (Id. at 56). Rohrbaugh testified that she was not able to do her job under those restrictions because at the time she “was still in a lot of pain from the surgery” and that her “hand was still numb so [she] was still dropping boxes.” (Id.) Rohrbaugh explained that she worked with the restrictions for “almost a year, ” but that she ultimately left the job because she decided that she “couldn't do it anymore.” (Id. at 56-57). She stated that she “was more of a hindrance than [she] was a help at that point.” (Id. at 58). Rohrbaugh stated that when she left work she was “eligible for retirement” so she took retirement and “applied for disability retirement.” (Id. at 67).

         When asked by the ALJ about the current status of her neck, Rohrbaugh replied that “[i]t's an achy situation” and that she doesn't “have much range of motion anymore in it.” (Tr. 59). She stated that her neck causes her headaches but not “migraine[s] anymore, ” and that she's “been pretty good because [she's] on pain meds all the time so it doesn't escalate to that as much as it once did” but that “it's starting now to again be a problem.” (Id.) Rohrbaugh further testified that she does not drive “a lot” because she's “on oxycodone 24/7” and is afraid that if she is in an accident she “could be arrested for being under the influence.” (Id. at 60). She stated during the hearing that “in the last two weeks [she's] probably driven three times to go to the store and come back.” (Id. at 59). She additionally remarked that her condition “hinders” her driving because she has to “really turn [her] body basically a lot of times to see what's going [on] in the other lane.” (Id. at 60). When asked by the ALJ if her physician has told her not to drive, she stated that he has not. (Id.)

         Next, the ALJ inquired as to whether Rohrbaugh has any pain going down her arms, Rohrbaugh responded that she has pain in her left arm from her last neck injury, and pain in her left ring finger, pinky finger, and that “part of her palm is still numb from the pinched nerve in there.” (Tr. 61). However, she stated that “[i]t's not near as bad as it once was” and that she thinks finally “after all this time” that she “can probably pretty much lift it straight up, ” that she doesn't “have any pain in [her] shoulder much anymore, ” and that “they got rid of the bone spurs, in fact, in both shoulders, ” and that “the pain it's pretty good.” (Id.)

         When asked by the ALJ to discuss her neuropathy, Rohrbaugh remarked “that [it's] bad.” (Tr. 62). She stated that her “toes feel like they've been smashed by hammers” and that “it kind of feels” like she is walking on “sharp stones.” (Id.) She explained that she “can't go without shoes anymore, ” that she has “to be careful what shoes [she] wear[s], ” and stated that her feet are “pretty painful on a constant basis now.” (Id.) Rohrbaugh further shared that “the tops of [her] feet are now starting to get” a stinging feeling and that “it just literally feels like they've been smashed all the time.” (Id.)

         Rohrbaugh testified that she does not use a cane or any other walking assistive device, but that she sometimes trips and falls. (Id.) Rohrbaugh stated that “a few years ago” she “tripped in [her] yard and broke [her] ankle for the second time.” (Tr. 63). She explained that she did not have to have surgery but that she was in a “boot cast” for about four or more months. (Id. at 64). She stated that she loses her “balance a lot because it's hard” for her to sometimes feel “what [she's] walking on, and if [she] steps on something, [she doesn't] realize [she's] stepping on it until after” she has stepped on it. (Id. at 65). Rohrbaugh remarked that she sees her primary care doctor “every three to four months” for her “diabetes and [her] pain management.” (Id. at 65-66).

         Rohrbaugh stated during the hearing that she has a CPAP machine for her sleep apnea (Tr. 70). However, she stated that the machine does not help her with her sleep “much anymore.” (Id.) Rohrbaugh testified that when she was working she used to “fall asleep on the way home from work actually in the car.” (Id.) She shared that she hasn't “been back to that sleep doctor for a while” because once she retired and “didn't have to make that drive, or drive that much, [she] didn't worry too much about it, [and] using it.” (Id.) Rohrbaugh testified that she hasn't “been tested for sleep apnea for a while, ” but that she doesn't “sleep much at night.” (Id. at 71). When asked why she doesn't sleep much at night, Rohrbaugh replied that her “feet hurt a lot” and that “[i]t takes a long time for the pain meds to take effect in the evening because [she doesn't] realize how bad they hurt until [she] gets off of them.” (Id.) She stated that “on occasion” she will wake up in pain and “will have to get up and take more medication to help with that.” (Id.) Rohrbaugh explained that the “mixture of waking up all the time and the pain” makes it so she doesn't sleep. (Id.) She further shared that she “sleep[s] off and on during the day too.” (Id.) Rohrbaugh stated that she naps “every day, a couple times a day.” (Id. at 74).

         Rohrbaugh also testified that her memory is “foggy.” (Tr. 73). She stated that “somethings [she] can remember really well, ” but “other things, like when [she's being asked] these things today” she doesn't remember as well because she thinks she has “trouble remembering how far back things happened and sometimes in the way it happened.” (Id.) She shared that she doesn't “often remember what [she] ate yesterday” and stated that if she doesn't “write things down, it's an issue” because she “miss[es] things.” (Id.)

         When asked by her attorney if there's anything else she would like the ALJ to know about her symptoms that hasn't been discussed, Rohrbaugh responded that she “hated having to quit her job” because she “loved her job.” (Tr. 74). She explained that her job “was pretty hard to give up” and that is was difficult “to know that all [her] hard work has boiled down to not being able to lift a box or being able to sit very long at the computer.” (Id.) Rohrbaugh stated that “to leave that and go home and sit on the couch, which is basically what [she's] been doing since [she] left that job, it's not easy.” (Id.) Rohrbaugh further reiterated that “it's not easy to sit home and watch the world go by you.” (Id. at 74-75).

         In a written decision dated April 21, 2017, the ALJ denied Rohrbaugh's applications for benefits. (Tr. 19). Rohrbaugh appealed the ALJ's decision to the Appeals Council, but the Appeals Council denied Rohrbaugh's request for review on March 8, 2018. (Tr. 1). This makes the ALJ's April 21, 2017, decision the final decision subject to judicial review by this Court.

         Rohrbaugh filed a timely complaint in this Court on April 25, 2018. (Doc. 1). In her complaint, Rohrbaugh asserts that the final decision of the Commissioner denying Rohrbaugh benefits is not supported by substantial evidence and is not based on a correct application of the law. (Doc. 1, at 3). On July 5, 2018, the Commissioner filed an answer to Rohrbaugh's complaint. (Doc. 7). In her answer, the Commissioner maintains that the decision denying Rohrbaugh's application for benefits is correct, is made in accordance with the law and regulations, and is supported by substantial evidence. (Doc. 7, at 4-5). This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 10, 11).

         II. Legal Standards

         a. Substantial Evidence Review - The Role of This Court

         When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker 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). 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). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be ‚Äúsomething less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] ...


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