WILLIAM I. ARBUCKLE, Magistrate Judge.
Plaintiff Harriet DeRigo ("Plaintiff"), seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her deceased son, Claimant Albert Anthony DeRigo, Jr.'s ("Claimant") application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is not supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be VACATED and this case be REMANDED to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g).
On February 11, 2014, Claimant protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 17; Doc. 10-2, p. 18). In this application, Claimant alleged he became disabled as of September 1, 2009, when he was forty-five (45) years old, due to the following conditions: cirrhosis of the liver, and chronic lower back pain. (Admin. Tr. 132; Doc. 10-6, p. 6). Claimant alleged that the combination of these conditions affected his ability to stand on his feet for more than ten to fifteen minutes, and that he was unable to do any heavy lifting. (Admin. Tr. 142; Doc. 10-6, p. 16). Additionally, Claimant alleged that these conditions affected his ability to walk, kneel, climb stairs, squat, bend, or reach. (Admin. Tr. 147; Doc. 10-6, p. 21). Claimant had at least a high school education and was able to communicate in English. (Admin. Tr. 27; Doc. 10-2, p. 28). Before the onset of his impairments, Claimant worked as a barber. (Admin. Tr. 26; Doc. 10-2, p. 27).
On April 16, 2014, Claimant's application was denied at the initial level of administrative review. (Admin. Tr. 64; Doc. 10-4, p. 4). On April 22, 2014, Claimant requested an administrative hearing. (Admin. Tr. 68; Doc. 10-4, p. 8).
On April 19, 2015, Claimant died, with the immediate cause of death identified as complications of alcoholism and morbid obesity. (Admin. Tr. 17; Doc. 10-2, p. 18). On November 18, 2015, a Notice Regarding Substitution of a Party upon the Death of a Claimant was received, filed by Plaintiff, Claimant's mother. (Admin. Tr. 77; Doc. 10-4, p. 17).
On January 12, 2016, Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Theodore Burock (the "ALJ"). (Admin. Tr. 32; Doc. 10-2, p. 33). On April 4, 2016, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 17; Doc. 10-2, p. 18). On May 27, 2016, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"). (Admin. Tr. 115; Doc. 10-4, p. 55).
On July 13, 2017, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 10-2, p. 2).
On August 25, 2017, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff seeks judicial review pursuant to 42 U.S.C. §405(g). Id. Plaintiff requests that the Court grant such relief as may be proper. Id.
On November 3, 2017, the Commissioner filed an Answer. (Doc. 9). In the Answer, the Commissioner asserts that the ALJ's decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Doc. 9, p. 2). Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 10 et seq.).
Plaintiff's Brief (Doc. 11), and the Commissioner's Brief (Doc. 16), have been filed. Plaintiff chose not to file a reply. (Doc. 17). This matter is now ripe for decision.
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 "something 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] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
"In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Claimant is disabled, but whether the Commissioner's finding that Claimant is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) ("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
To receive benefits under the Social Security Act by reason of disability, a claimant must 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 twelve months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
In his April 2016 decision, the ALJ found that Claimant met the insured status requirement of Title II of the Social Security Act through December 31, 2009. (Admin. Tr. 19; Doc. 10-2, p. 20). Then, Claimant's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Claimant did not engage in substantial gainful activity at any point between September 1, 2019 (Claimant's alleged onset date) and December 31, 2009 (Claimant's date last insured) ("the relevant period"). (Admin. Tr. 19; Doc. 10-2, p. 20). At step two, the ALJ found that, during the relevant period, Claimant had the following medically determinable severe impairment(s): cirrhosis of the liver with portal hypertension, chronic obstructive pulmonary disease, obesity and tobacco abuse. (Admin. Tr. 19; Doc. 10-2, p. 20). At step three, the ALJ found that, during the relevant period, Claimant did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 21; Doc. 10-2, p. 23).
Between steps three and four, the ALJ assessed Claimant's RFC. The ALJ found that, during the relevant period, Claimant retained the RFC to engage in sedentary work as defined in 20 C.F.R. § 404.1567(a) subject to the following additional limitations:
(Admin. Tr. 22; Doc. 10-2, p. 23).
At step four, the ALJ found that, during the relevant period, Claimant could not engage in his past relevant work. (Admin. Tr. 26; Doc. 10-2, p. 27). At step five, the ALJ found that, considering Claimant's age, education and work experience, Claimant could engage in other work that existed in the national economy. (Admin. Tr. 27; Doc. 10-2, p. 28). To support his conclusion, the ALJ relied on the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2, specifically, Medical-Vocational Rule 201.21 as well as SSR 83-11, SSR 83-12, SSR 83-14, SSR 85-15, and SSR 96-9p.
To determine that Claimant could make an adjustment to other work during the relevant period, the ALJ "must provide evidence about the existence of work in the national economy that [Claimant could] do. . ., given [his] residual functional capacity . . ., age, education, and work experience." 20 C.F.R. § 404.1512(f). In this case, the ALJ did so by using the Medical-Vocational Guidelines ("Grids") as a framework.
The Commissioner describes the Grids in Appendix 2 of 20 C.F.R. Part 404, Subpart P as follows:
20 C.F.R. § 404.1569. Similarly, section 200 of Appendix 2 of 20 C.F.R. Part 404, Subpart P provides that the Grid rules:
20 C.F.R Part 404, Subpart P, Appendix 2 §200(a). "[W]here an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." 20 C.F.R. Part 404, Subpart P Appendix 2 § 200(e)(2). When the claimant cannot perform substantially all the exertional demands of work at a given level of exertion or has non-exertional limitations, the medical vocational rules are used as a framework for decision-making unless there is a rule that directs a conclusion of "disabled" without considering the additional exertional or nonexertional limitations. SSR 83-12, 1983 WL 31253; SSR 83-14, 1983 WL 31254.
In this case, the ALJ concluded that Claimant could perform all the exertional demands of sedentary work but was subject to the following non-exertional limitations: avoid concentrated exposure to extreme temperatures, fumes, odors, dust, gases and poor ventilation. At step five, the ALJ used the Grids as a framework, and relying on language from Social Security Ruling 96-9p, concluded that the non-exertional limitations did not impact Claimant's occupational base. The ALJ explained:
(Admin. Tr. 27; Doc. 10-2, p. 28).
Plaintiff argues:
(Doc. 11, pp. 5-6) (internal footnote omitted).
It is Plaintiff's position that SSR 96-9p does not provide crystal clear guidance as to how Claimant's need to avoid concentrated exposure to extreme temperatures, fumes, odors, dust, gases and poor ventilation would erode the underlying occupational base, and therefore does not support the ALJ's conclusion that Claimant could have performed "other work" during the relevant period.
In response, the Commissioner argues that the ALJ reasonably relied on the Medical Vocational Guidelines to find that Plaintiff was not disabled despite Plaintiff's nonexertional impairments. (Doc. 16, p. 4).
SSR 96-9p, provides, in relevant part:
1996 WL 374185 at *8-9 (boldface in original).
Although SSR 96-9p does address the issue of exposure to odors or dust, it does not provide any insight as to the extent that a limitation in the amount of exposure to these conditions erodes the occupational base. Instead, the ruling merely observes that such a limitation must be "evaluated on an individual basis." Id. "[I]f the Secretary wishes to rely on an SSR as a replacement for a vocational expert, it must be crystal-clear that the SSR is probative as to the way in which the nonexertional limitations impact the ability to work, and thus the occupational base." Allen v. Barnhart, 417 F.3d 396, 407 (3d Cir. 2005) (emphasis added). Accordingly, I find that the ALJ's reliance on the Grids is misplaced, and that the ALJ's conclusion at step five is not supported by substantial evidence and that this case must be remanded to further develop the issue of whether Claimant could engage in other work during the relevant period.
Plaintiff argues that the ALJ's credibility finding is flawed because the ALJ failed to consider Claimant's long work history
(Doc. 11, p. 10).
In response, Commissioner argues that the ALJ reasonably considered Claimant's subjective complaints. (Doc. 16, p. 10). Commissioner asserts that Plaintiff fails to show why the ALJ's analysis of Claimant's subjective statements should not be afforded deference. Id. Commissioner recognizes that work history is one potentially relevant factor in an ALJ's credibility assessment. (Doc. 16, p. 12); Freeman v. Colvin, No. 4:14-CV-01581, 2015 WL 3739077, at *7 (M.D. Pa. June 15, 2015). However, Commissioner cites to case law indicating that this factor need not be explicitly mentioned as enhancing credibility when a Claimant's allegations are not supported by the medical evidence of record:
(Doc. 16, p. 12).
Commissioner asserts that the ALJ properly discounted Claimant's subjective statements because Claimant's complaints of disabling symptoms are not supported by the medical evidence in the record:
(Doc. 16, pp. 10-11). Thus, Commissioner asserts that the ALJ reasonably considered Claimant's subjective complaints, and that the ALJ's analysis is supported by the record. Id.
I agree with the Commissioner that the ALJ reasonably considered Claimant's subjective complaints and that the ALJ's analysis is supported by the record. The ALJ found numerous inconsistencies between Claimant's allegations of disabling symptoms and the medical evidence in the record. Specifically, the ALJ found that Claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Admin. Tr. 22; Doc. 10-2, p. 23). Thus, the ALJ properly discounted Claimant's subjective statements. The fact that the ALJ did not explicitly mention Claimant's long work history does not, by itself, warrant remand. I have, however, found an alternative basis for remand in this case. Therefore to the extent Plaintiff would like to raise this issue, she should do so during the new administrative hearing.
IT IS RECOMMENDED that Plaintiff's request for relief be GRANTED as follows:
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
