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Shutt v. Saul

United States District Court, M.D. Pennsylvania

September 27, 2019

ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          Schwab Chief Magistrate Judge.


          James M. Munley Judge.

         Before the court for disposition is Todd Michael Shutt’s appeal of the final decision of the Commissioner of Social Security (hereinafter “Commissioner” or “defendant”) denying his claim for Social Security Disability Insurance Benefits under Title II of the Social Security Act. Chief Magistrate Judge Susan E. Schwab issued a report and recommendation wherein she concludes that we should vacate the final decision of the Commissioner denying plaintiff’s application and remand the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). The Commissioner has objected to the R&R. The parties have briefed their respective positions, and the matter is ripe for disposition.

         Background [2]

         On November 11, 2014, plaintiff protectively filed an application for Disability Insurance Benefits contending that he became disabled on July 20, 2012. (Doc. 11-5, Administrative Record at (hereinafter “R. at”) 146-47). Plaintiff listed in his disability report that brain damage, Chronic Obstructive Pulmonary Disease (hereinafter “COPD”) and his back limit his ability to work. (R. at 177). The Commissioner denied plaintiff’s claim at the initial level on January 13, 2015, and plaintiff requested an administrative hearing on February 17, 2015. (R. at 79-85). On December 21, 2016, with the assistance of counsel, plaintiff testified at a hearing before Administrative Law Judge (hereinafter “ALJ”) Mike Oleyar. (R. at 37-68).

         During the hearing, plaintiff was asked a series of questions about his living conditions, activities, and medical conditions. (R. at 42-61). Plaintiff testified that he lives with his wife, father-in-law, his youngest daughter, and his grandson. (R. at 43). He further testified that he was a certified auto mechanic, that he used to be in the Marine Corps, was previously a handyman, and that he worked in commercial and residential construction prior to when he was a pipe fitter (R. at 44-46). Plaintiff testified that his “lungs are damaged, [he has] shortness of breath [and] no stamina.” (R. at 48). He stated that he as “deteriorating discs in L2 and L5, and arthritis” that causes “constant pain.” (Id.) He described his pain as follows: he “get[s] radiating pain out through [his] shoulder blades because [he] had a spinal compression at one time.” (Id.) He testified that his “hands go numb . . . quite often” and that he cannot “pick any weight up with [his left] arm.” (R. at 48-49).

         Plaintiff testified that his knees “have given out . . but it has been a while since [they] have done that.” (Id. at 49). He stated that he “can’t stand for any extended period of time . . . maybe 15 minutes, [before he would need to] sit down.” (Id. at 51). Plaintiff further testified that he “could walk about two blocks and have to take a break” and that he “could sit [for] an hour.” (Id. at 51-52). He also indicated that he cannot “lift very much anymore because of [his] joints.” (Id. at 52).

         When asked by the ALJ if he had any problems with personal care, plaintiff testified that “[he] can do all [of] that.” (Id. at 53). Plaintiff explained that his “wife and [his] daughter” do activities around the home, that his wife “doesn’t like [him] using the stove because [he] forget[s] to turn it off, ” and that he does not clean, but he could “a bit” if he had to. (Id. at 53-54). As far as chores around the house, plaintiff does laundry “maybe once a month, ” can do “some, but not much” grocery shopping, he takes out the trash, and his father-in-law does the yard work, but he can “go out and do some trimming with the weed whacker a bit.” (Id. at 54).

         Plaintiff testified that he “just can’t remember anything” and that it is “almost worthless to read because [he] can’t remember what [he] read.” (Id. at 55). He stated that he doesn’t sleep very well and that he “sleep[s] for about four hours at a time at most.” (Id. at 55-56). When asked if he spends time outside his home, plaintiff answered that he “[goes] to [his] mom’s house maybe on the weekends.” (Id. at 56). When asked about any hobbies or activities that he used to be able to do that he is unable to do now, he stated that he does not bowl, play horseshoes, golf or hike anymore. (R. at 57). He belongs to the VFW and the Moose Lodge where he goes “maybe once a month.” (Id.) He goes to church on Tuesday nights. (Id.) He has a driver’s license, the he is able to drive, and he drives every day. (R. at 56-57). He has “a computer, but [he] [doesn’t] have any [i]nternet access: and he is “not real good with it, but [he] can use it.” (R. at 57). When asked about medications that he was currently taking, he stated that he is “on two inhalers and [] muscle relaxers.” (R. at 58).

         Plaintiff said that his typical day is spent on his recliner, watching TV, and helping to watch his grandson. He is, however, not often alone with his grandson, who is nine months old. He can pick up his grandson, but it causes pain. (R. at 59). When he gets up, he walks out to the garage and listens to the radio for a while. (Id.) Nothing makes his symptoms better but lifting can cause his symptoms to flare up. (R. at 59-60). Even if he moves the wrong way, his back could go out and one time he fell to his knees from picking up a six-pack of water. (R. at 60).

         In a December 19, 2014 function report, plaintiff stated that he cannot breathe as well as others or do any manual labor and that his back has a tendency to “go out whenever”. (R. at 199). Arthritis in his knees and other joints severely limits his ability to move and lift. (Id.) He further stated that his pain has gradually gotten worse over time and is “continually [and] progressively worsening.” (R. at 207).

         On January 7, 2015, Spencer Long, M.D. performed a consultative examination of the plaintiff for Defendant Commissioner of Social Security. Dr. Long noted that plaintiff was diagnosed with COPD in 2012, uses inhalers and becomes short of breath after walking a flight of stairs or a city block, and has pain in his lumbar spine which at times radiates into his right hip. (R. at 280). Dr. Long further noted that plaintiff had a “history of a head injury when he was hit with a baseball bat” as well as “a compound fracture of the left lower leg [that was] treated surgically, but without hardware.” (Id.) Plaintiff uses a cane as necessary. (Id.)

         Dr. Long diagnosed plaintiff with lower back pain, degenerative disc disease of the lumbar spine, history of head injury, with skull fracture and decompression of cervical discs, compound fracture of the left lower leg, and arthritis of the knees and elbow. (R. at 282-3). He opined that plaintiff was limited to lifting and carrying twenty pounds occasionally and ten pounds frequently. (R. at 284). He stated that plaintiff could sit for eight hours in an eight-hour day or stand or walk for one hour in an eight-hour day. (R. at 285).

         Dr. Long further opined that plaintiff could frequently reach overhead with his hands in all directions; perform handling, fingering, feeling, pushing and pulling; operate foot controls with both feet; he could occasionally climb ramps and stairs, ladders and scaffolds; and that he could stoop, kneel, crouch, crawl, and balance. (R. at 287-88). Dr. Long stated that plaintiff could occasionally be exposed to unprotected heights, humidity, and wetness but that he could frequently be exposed to moving mechanical parts and operating a motor vehicle. (R. at 288). Additionally, Dr. Long stated that plaintiff could never be exposed to dust, odors, fumes, irritants, extreme cold and heat, or vibrations. (R. at 288). Further Dr. Long opined that plaintiff could not perform activities like shopping, he cannot travel without a companion for assistance, and he cannot walk a block at a reasonable pace on rough or uneven surfaces. (R. at 289).

         The ALJ also considered the opinion of Laura Reilly, Certified Registered Nurse Practitioner (hereinafter “Nurse Reilly”). (See id. at 22-23). As of September 2016, Nurse Reilly indicated that she had been treating plaintiff for over the past six years for back pain and COPD. (R. at 295). She stated that his symptoms included “pain, weakness in [his] arms [and] shortness of breath.” (Id.) She stated that plaintiff’s pain was “in [his] low back, [it] is almost constant, [and is] aggravated by an motion or activity.” (Id.) Nurse Reilly opined that plaintiff’s impairments have lasted for at least twelve months, he must use a cane or other assistive device to stand or walk, and that he is not a malingerer. (Id.) She stated that he will need a job that permits shifting positions at will from sitting, standing, or walking and that he can lift and carry ten pounds rarely and less than ten pounds occasionally. (R. at 296).

         Nurse Reilly stated that plaintiff could never stoop, crouch or climb ladders, rarely twist and occasionally climb stairs. (Id.) She stated that he could use his hands to grasp bilaterally 25% of the day, fingers for fine manipulation 100% of the day, and arms for reaching 10% of the day. (Id.) Additionally, she stated that his impairments are reasonably consistent with the symptoms and functional limitations and that his pain or other symptoms are severe enough to interfere with his attention and concentration frequently. (R. at 297). She further concluded that plaintiff was capable of low stress jobs due to a combination of COPD and his chronic pain that may likely cause him to be absent from work more than four days per month. (Id.)

         On March 7, 2017, the ALJ denied plaintiff’s application for benefits in a written decision. (R. at 12-25). Plaintiff appealed the ALJ’s decision to the Appeals Council on March 7, 2017, which denied his request for review on January 30, 2018. (R. at 1-5). This denial by the Appeals Council makes ...

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