Opinion
CASE NO. 1:19-cv-01416-RDM-GBC
09-09-2020
DAVID A. LESH, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. David A. Lesh ("Plaintiff"), seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to demonstrate an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A).
The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920. The process requires an ALJ to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("Court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
II. BACKGROUND
A. Procedural History
In April 2016, Plaintiff filed an application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Act, alleging disability since October 9, 2011. (Tr. 15, 128-34). In February 2018, an ALJ held a hearing where Plaintiff and a Vocational Expert ("VE") testified. (Tr. 29-71). On August 8, 2018, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 12-28). Plaintiff was forty-nine years old on his date last insured of March 31, 2014. (Tr. 17, 22-24). In March 2019, the Appeals Council denied Plaintiff's request for review (Tr. 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. §§ 416.1481; 422.210(a). This action followed.
Sixty-seven days after his date last insured, Plaintiff turned 50 years of age and therefore changed age categories. (See tr. 17, 22-24).
"Finally, as mentioned supra, it is not clear what effect the ALJ gave to Carter's age, and the fact that he turned 50-years-old approximately one month after the alleged onset date and less than three months prior to the last insured date. See 20 C.F.R. § 404.1563 (b)(d). When 'the record does not contain factual findings relevant to the § 404.1563(b) inquiry into whether [claimant is] entitled to consideration ... as a borderline age case,' the matter should be remanded for lack of substantial evidence. Lucas v. Barnhart, 184 Fed. App'x 204, 208 (3d Cir. 2006)." See Carter v. Saul, No. 3:18-CV-02321, 2019 WL 6699711, at *7 (M.D. Pa. Dec. 9, 2019).
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges the following errors: 1) The ALJ erred in finding Plaintiff could perform his past relevant work as a sales representative; 2) The ALJ erred in applying the grid rules in a mechanical fashion; and 3) The ALJ erred in finding Plaintiff's statements were not consistent with the record. (Pl. Br. at 12) (Doc. 10).
A. Weight to Medical Opinions in the Record, the RFC, and the Ability to Perform
Past Relevant Work
Plaintiff states the ALJ erred by finding Plaintiff's statements were inconsistent, despite the medical opinions in the record. (See Pl. Br. at 15-16). Plaintiff also contends he cannot perform his past relevant work, which would trigger an application of the grid rule due to his borderline age category. Id. at 14-15.
1. 2013 Independent Medical Evaluations
On January 8, 2013, Michael D. Wolk, M.D., examined Plaintiff for a physiatric independent medical evaluation and completed a physical capacities assessment. (Tr. 762-72). Dr. Wolk found Plaintiff could perform light work and could sit, walk, or stand six to eight hours with the ability to change positions on an hourly basis for at least five minutes as needed. (Tr. 767, 769). Dr. Wolk found Plaintiff could not be exposed to extreme cold, damp conditions for prolonged periods. Id. at 767. Dr. Wolk found Plaintiff could lift or carry up to ten pounds frequently and twenty pounds occasionally. Id. at 767, 769. Dr. Wolk found Plaintiff could occasionally crawl and could frequently squat, climb, and reach. (Tr. 769). On November 5, 2013, Dr. Wolk examined Plaintiff again for a physiatric independent medical evaluation. (Tr. 773-77). Dr. Wolk found Plaintiff could perform light work with the ability to change positions on an hourly basis for at least five minutes as needed. (Tr. 776). Dr. Wolk found Plaintiff's prognosis for full recovery as poor and concluded Plaintiff has a permanent impairment with a permanent partial disability. Id. at 776-77.
The ALJ noted Dr. Wolk's opinion was somewhat consistent with the evidence of record, as it noted Plaintiff's need to change positions while also anticipating his improvement over time. (See tr. 21). The ALJ gave Dr. Wolk's opinion "significant, but not great weight." Id.
2. Chiropractic Report
On February 24, 2014, Plaintiff's treating chiropractor, Albert J. Skocik, D.C., submitted a report to Plaintiff's treating orthopedist, Dr. DeLuca. (Tr. 633). Dr. Skocik reported Plaintiff responded very well to a lumbar fusion in June 2012. Id. Dr. Skocik reported physical demand testing performed today would place Plaintiff in the heavy category except for working with his arms above his shoulder which he would be in the medi[um] category. Id. Dr. Skocik reported he would place Plaintiff in the medi[um] category overall, as Plaintiff had difficulty getting up after lifting with his back. Id.
The ALJ noted Dr. Skocik's opinion was based on physical demand testing and from a non-medical source. (Tr. 20). The ALJ gave Dr. Skocik's opinion "some weight" as it was consistent with the ability to perform the exertional activity within the parameters of the [sedentary] RFC. Id.
3. Orthopedist Records
On February 26, 2014, Steven M. DeLuca, D.O, issued an opinion regarding Plaintiff's work restrictions. (Tr. 297-98). Dr. DeLuca noted x-rays from today show hardware in excellent position at L5-S1. (Tr. 297). Dr. DeLuca noted a complete fusion of the interspace and no dynamic instability despite having some mild narrowing over L3-L4 and L4-L5. Id. Dr. DeLuca noted he reviewed the Functional Capacity Exam ("FCE") from February 24, 2014 for a "heavy" work category except for working with his arms above shoulder level, for which he should be in "medium." Id. Dr. DeLuca said he agreed with the FCE for heavy work except for medium work with overhead lifting. Id. at 298. Dr. DeLuca noted Plaintiff should use his brace with any sort of heavy lifting, pushing, or pulling. Id.
The ALJ noted Dr. DeLuca's opinion generally indicated Plaintiff could work at the sedentary level, at a minimum, with increased abilities over time such that he could work at the medium level or more one month before the date last insured. (See tr. 20). The ALJ gave Dr. DeLuca's opinion "great weight" as it was consistent with the evidence of record. Id.
4. 2014 Independent Medical Evaluation
On October 28, 2014, Elliot B. Sterenfeld, M.D., examined Plaintiff for an independent medical evaluation. (Tr. 730-39). Dr. Sterenfeld found Plaintiff could perform medium work, lifting fifty pounds maximum with frequent lifting and carrying of twenty-five pounds. (Tr. 739). Dr. Sterenfeld recommended Plaintiff be allowed to bend at the waist occasionally, shift positions from sitting to standing as needed and walking without restrictions. Id.
The ALJ noted while Dr. Sterenfeld's opinion was generally consistent with the evidence of record from that time, the opinion was given after the date last insured and does not reflect Plaintiff's functional capacity during the relevant period. (Tr. 21). The ALJ gave Dr. Sterenfeld's opinion "little weight." Id.
5. Medical Expert's Opinion
On April 12, 2018, Arthur Lebowitz, M.D., reviewed the record and completed a physical RFC for the relevant period at the request of the ALJ. (Tr. 1012-20). Dr. Lebowitz indicated Plaintiff could occasionally lift and carry up to ten pounds; could sit and walk for twenty minutes at one time without interruption; could stand for ten minutes without interruption; sit for a total of six hours, walk for a total of two hours, and stand for one hour in an eight-hour workday; could occasionally reach overhead; could frequently do other reaching, handling, fingering, feeling, push / pull, and operation of foot controls; could occasionally climb stairs and ramps, balance, stoop, kneel, crouch, or crawl; could never climb ladders or scaffolds; and should avoid unprotected heights and extreme cold; could tolerate occasional exposure to extreme heat and vibrations; could tolerate loud noise; and could frequently operate a motor vehicle if could change positions every 20 minutes. (Tr. 1012-16). Dr. Lebowitz identified consistent symptoms and bilateral tarsal tunnel syndrome as reasons for his findings. (Id. at 1012, 1014).
The ALJ noted Dr. Lebowitz evidenced a familiarity and understanding of the medical evidence of record by giving citations to the evidence in his response to interrogatories. (Tr. 21). The ALJ gave Dr. Lebowitz's opinion "great weight" as it was consistent with the evidence. Id.
6. ALJ Findings
In the decision, the ALJ made the following findings:
The claimant last met the insured status requirements of the Social Security Act on March 31, 2014 ...
Through the date last insured, the claimant had the following severe impairments: lumbar spine disorder, including a herniated nucleus pulposus and radiculopathy status-post two surgeries, obesity, and bilateral tarsal tunnel syndrome ...
through the date last insured, the claimant had the RFC to perform sedentary work as defined in 20 C.F.R. 404.1567(a) except he is limited to occupations which can be performed with the use of a cane for ambulation, as needed. He is further limited to occupations that require no more than occasional postural maneuvers such as balancing, stooping, kneeling, crawling, crouching, and climbing on ramps and stairs, but m[u]st avoid occupations that require climbing on ladders, ropes, or scaffolds. He must be afforded the option to alternate between sitting and standing during the workday for brief periods of a few minutes every one-half hour or so, but can remain on task during this time. He must avoid concentrated and prolonged exposure to environments with temperature extremes, excessive vibration, extreme dampness, and humidity ...
The claimant stated that he worked as a salesman from February 2001 through April 2001. This work occurred less than fifteen years prior to the date last insured on March 31, 2014. The VE classified this work as that of a sales representative, Dictionary of Occupational Titles ("DOT") No. 291.357-010 ... while this work is generally performed at the light exertional level, it was actually performed by the claimant at the sedentary exertional level ...
Although the claimant is capable of performing past relevant work, there are other jobs existing in the national economy that he is also able to perform. Therefore, the ALJ makes the following alternative findings for step five of the sequential evaluation process ...
through the date last insured, the ALJ asked the VE whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and RFC. The VE testified that, given all of these factors, the individual would have been able to perform the requirements of representative occupations
such as: Assembler, DOT No. 734.687-018, sedentary exertional level, 217,500 jobs in the national economy; Laminator, DOT No. 690.685-258, SVP 2; light exertional level, 67,490 jobs in the national economy; and Semi-Conductor Bonder, DOT No. 726.685-066, sedentary exertional level, 22,190 jobs in the national economy ...(Tr. 17-18, 22-23).
"Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
DOT No. 291.357-010 Sales Representative, Door-to-Door, Industry Designation: Retail Trade Industry, Alternate Titles: Canvasser; Peddler; Solicitor. Sells merchandise or service, such as books, magazines, notions, brushes, and cosmetics, going from door to door without making appointments or following leads from management, other workers, or from listings in city and telephone directories: Displays sample products, explains desirable qualities of products, and leaves samples, or distributes advertising literature explaining service or products. Writes and submits orders to company. Delivers merchandise, collects money, and makes change. May contact individuals previously solicited in person, by telephone, or by mail to close sale. May travel from one area to another, or be assigned to specified territory.
DOT No. 734.687-018 Assembler, Industry Designation: Button and Miscellaneous Notions Industry. Inserts paper label in back of celluloid or metal advertising buttons and forces shaped stickpin under rim.
Sedentary Work - Exerting up to ten pounds of force occasionally (Occasionally: activity or condition exists up to one-third of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from one-third to two-thirds of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. DOT Nos. 690.685-258, 726.685-066, & 734.687-018.
DOT No. 690.685-258 Laminator I, Industry Designation: Leather Products Industry. Tends machine that laminates pre-cemented leather and plastic parts used in making leather products, such as wallets, coin purses, and key cases: Presses button to start conveyor and heating elements. Turns knob to adjust distance between presser rollers. Places aligned parts on conveyor leading to machine that laminates parts. Removes parts from machine and ties parts into bundles for further processing.
DOT No. 726.685-066 Bonder, Semiconductor, Industry Designation: Electronic Components and Accessories Industry. Tends automatic bonding machine that bonds gold or aluminum wire to integrated circuit dies to connect circuitry to package leads: Reviews schematic diagram or work order to determine bonding specifications. Turns dials to set bonding machine temperature controls and to regulate wire feeding mechanism. Mounts spool of wire onto holder and inserts wire end through guides, using tweezers. Positions semiconductor package into magazine of automatic feed mechanism, and observes package, using microscope or equipment display screen, to ensure connections to be bonded are aligned with bonding wire. Adjusts alignment as necessary. Activates machine that automatically bonds wire to specified connections on semiconductor package leads. Removes packages from bonding machine and places packages in work tray. May test tensile strength of bonded connections, using testing equipment. May locate connections and bond wire to connect circuitry of hybrid circuits, using precision-bonding machine.
7. Review of ALJ Decision
Despite assigning great weight to the opinion of Dr. Lebowitz, the ALJ did not adopt the medical expert's opinion in his determination, which found Plaintiff could occasionally reach overhead (up to one-third). (Tr. 21, 1014). Moreover, Dr. DeLuca noted he reviewed the Functional Capacity Exam ("FCE") from February 24, 2014 for a "heavy" work category except for working with his arms above shoulder level, for which he should be in "medium." (Tr. 298). Dr. DeLuca said he agreed with the FCE for heavy work except for medium work with overhead lifting. Id. Despite assigning great weight to the opinion of Dr. DeLuca, the ALJ did not include any additional limitation for overhead activities. (Tr. 18). The ALJ's RFC was silent as to reaching and / or overhead reaching and / or overhead activities. (Tr. 18). Plaintiff's past relevant work as a Sales Representative required frequent reaching (exists from one-third to two-thirds of the time), and the laminator and assembler jobs identified by the VE required constant reaching (exists 2/3 or more of the time). See DOT Nos. 291.357-010, 690.685-258 & 734.687-018. Although the semi-conductor bonder job required occasional reaching (exists up to 1/3 of the time) (see DOT No. 726.685-066), Plaintiff's alleged inability to perform his past relevant work due to the overhead reaching is significant, as this could trigger the grid rules due to his borderline age category. See 20 C.F.R. Part 404, Part 404, Subpart P, Appendix 2, Grid Rule 201.14. The ALJ did not question the VE as to whether his past relevant work or the three jobs identified by the VE required more than occasional overhead reaching. (See tr. 66-69). The ALJ declined to apply the borderline age rule. (Tr. 22).
The ALJ did not explain the reasons for failing to include Dr. Lebowitz's limitation in his determination, which found Plaintiff could occasionally reach overhead (up to one-third), or Dr. DeLuca's limitation for working with his arms above shoulder level, for which he should be in "medium," despite assigning great weight to these opinions. (Tr. 18, 20-21, 298 & 1014). "An ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions." Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). Barnett v. Berryhill, No. 3:18-CV- 637, 2018 WL 7550259, at *6 (M.D. Pa. Dec. 10, 2018), report and recommendation adopted, 2019 WL 1082621 (M.D. Pa. Mar. 7, 20191 See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity [the claimant] could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence.")
Without any medical opinion being credited with regards to all of Plaintiff's limitations, the ALJ impermissibly relied on speculation or lay interpretation of medical evidence to reach the conclusion regarding Plaintiff's RFC. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (The ALJ may not substitute his own judgment for that of a physician). Therefore, substantial evidence does not support the ALJ's RFC finding when the ALJ relied on the opinions of Drs. Simmons and Ritner, but failed to include Dr. Simmons's limitation in his determination, which found Plaintiff "limited in reaching overhead." (Tr. 24, 26, 816). Accordingly, the ALJ's decision lacks substantial evidence a reasonable mind might accept as adequate to support the conclusion.
B. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011). Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018).
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
V. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.DATED: September 9, 2020
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE