United States District Court, M.D. Pennsylvania
Chief Magistrate Judge.
M. Munley Judge.
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.
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).
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).
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
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).
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.
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).
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).
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
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).
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).
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).
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
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