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Finkbone v. Saul

United States District Court, E.D. Pennsylvania

December 11, 2019

BRIAN FINKBONE, Plaintiff
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant

          MEMORANDUM

          CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE.

         Brian Finkbone (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”), denying his claim for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of his request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For the reasons set forth below, Plaintiff's request for review is denied and judgment is entered in favor of the Commissioner.

         I. PROCEDURAL HISTORY [1]

         On September 24, 2015, Plaintiff applied for DIB and SSI, alleging disability, because of physical and mental health impairments, since January 1, 2015. R. 10. The claim was denied, initially, and Plaintiff requested a hearing. Id. On September 1, 2017, Plaintiff appeared before Jasper J. Bede, Administrative Law Judge (“the ALJ”), for a video hearing;[2] Plaintiff, who was represented by an attorney, and vocational expert Patricia Scutt (“the VE”) testified at the hearing. R. 64-101. On January 11, 2018, the ALJ, using the sequential evaluation process for disability, [3]issued an unfavorable decision. R. 10-22. The Appeals Council denied Plaintiff's request for review, on December 4, 2018, making the ALJ's findings the final determination of the Commissioner. R. 1-3. The parties have consented to this court's jurisdiction, pursuant to 28 U.S.C. § 636(c)(1).

         II. FACTUAL BACKGROUND

         A. Personal History

         Plaintiff, born on April 17, 1978, R. 21, was 40 years old when the ALJ rendered his decision. He completed high school, R. 21, and worked as a cashier, assistant manager, kitchen helper, and plastic press molder. R. 74-75. Plaintiff lives with his disabled mother. R. 59.

         B. Plaintiff's Testimony

         At the September 1, 2017 video hearing, Plaintiff testified about his limitations. R. 41-73. Plaintiff's primary problem is pain and fatigue in his legs caused by diabetes, artery problems and neuropathy. R. 53, 73. Plaintiff also suffers from anxiety and depression. R. 73. Plaintiff takes a great deal of medication for his conditions. R. 54-57. Additionally, his doctor believes Plaintiff suffers from COPD, but his insurance will not cover any medication for that condition. R. 58. Plaintiff was not certain whether some of his symptoms were side-effects from his medications or simply symptoms caused by his poor health. R. 67.

         Plaintiff sleeps poorly and does not feel rested when awakening. R. 60-63, 66-67. He typically retires at midnight but often cannot fall asleep for hours. R. 62-63. Because sleep comes unpredictably, some days he awakens at 9:00 or 10:00 in the morning; on other days, he awakens in the afternoon. R. 60, 62. Plaintiff does not intentionally nap, but, once or twice per month, he dozes off unexpectedly. R. 67. When he is awake, Plaintiff spends a good deal of time sitting in a chair with his legs propped up while he watches television. R. 63. While seated, he performs breathing exercises to alleviate his anxiety and depression and stretching exercises for his calves. Id.

         Plaintiff testified that he could walk approximately two blocks without discomfort and stand for approximately 45 minutes before the neuropathy in his left leg would cause excessive pain. R. 72. He can sit for long stretches of time, so long as his legs are propped up. R. 73.

         Plaintiff is able to dress and shower without assistance; however, when donning trousers while standing, he needs to hold onto something for support. R. 68. He can grocery shop (once a week), launder clothes, and wash dishes. R. 62, 68-69. Plaintiff's mother cooks meals for both of them. R. 61.

         C. Vocational Testimony

         The VE testified that Plaintiff's past cashier job was medium, [4] semi-skilled[5] work, his assistant manager positions were light[6] and medium, skilled[7] jobs (with non-transferrable skills) and his plastic press molder job constituted light, unskilled[8] work. R. 74-75. The ALJ asked the VE to consider a person, limited to sedentary[9] work, and unable to deal with the public or work closely with others as part of a team. R. 76. The VE responded this person could not perform any of Plaintiff's past work, but could perform the following, unskilled jobs: (1) document preparer (174, 000 positions nationally); (2) pharmaceutical egg processor (300, 000 position nationally); and (3) circuit board layout taper (290, 000 positions nationally). R. 76. The VE also stated that, if the person was off-task as much as 20 percent of the time, he could not sustain competitive employment. R. 77. The VE further testified that, for unskilled laborers, employers typically tolerated seven to ten days of absences in the first year of employment. R. 77-78. Finally, the VE testified that the three alternative positions she had identified could be performed, even if the worker had to elevate his leg to knee level, since the jobs were performed in the seated position. R. 78-79.

         III. THE ALJ's FINDINGS

         In his decision, the ALJ issued the following findings:

1. [Plaintiff] meets the insured status requirements of the Social Security Act through June 30, 2018.
2. [Plaintiff] has not engaged in substantial gainful activity since March 16, 2015, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments: diabetes mellitus type one with peripheral neuropathy, peripheral arterial disease, chronic obstructi[ve] pulmonary ...

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