RENÉE MARIE BUMB, District Judge.
This matter comes before the Court upon the appeal by
A reviewing court must uphold the Commissioner's factual findings if they are supported by "substantial evidence," even if the court "would have decided the inquiry differently."
In addition to the "substantial evidence" inquiry, the reviewing court must also determine whether the ALJ applied the correct legal standards.
The Social Security Act defines "disability" as the 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. § 1382c(a)(3)(A). The Act further states that:
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential analysis for evaluating a claimant's disability, as outlined in 20 C.F.R. § 404.1520(a)(4)(i)-(v). The Third Circuit has described the Commissioner's inquiry at each step of this analysis, as follows:
The Court recites only the facts that are necessary to its determination on appeal.
On June 15, 2010, Plaintiff underwent an MRI of his right shoulder. Dr. Allan Cummings, a board certified radiologist, observed "a nearly complete tear of the distal supraspinatus just proximal to its insertion onto the greater tuberosity, a significant worsening in its appearance when compared to the previous study of 4/07. The remainder of the rotator cuff appears intact." R. 372.
On March 25, 2011, Plaintiff was examined by Dr. Matthew Pepe. Dr. Pepe noted that "Examination of his shoulder demonstrates full motion. Tenderness over the biceps and tuberosity. Positive impingement signs. Negative biceps maneuvers. Negative SLAP maneuvers. Skin is intact. Motor and sensory examination is intact." Dr. Pepe reviewed an MRI of Plaintiff's shoulder, which "demonstrate[d] a full-thickness 1 cm anterior supraspinatus tear, no retraction, no atrophy, type II acromion, and AC arthropathy." Dr. Pepe diagnosed Plaintiff with a right shoulder chronic full-thickness rotator cuff tear and administered a platelet rich plasma injection. He noted that Plaintiff "tolerated the injection well" and "will rest for one week and begin a gentle stretching and strengthening program." R. 358.
Plaintiff underwent an MRI of his right shoulder on July 13, 2011. Dr. Cummings observed "a small, partial tear of the distal supraspinatus," which "represents a substantial improvement when compared to the previous exam, where the distal supraspinatus was nearly completely torn." Dr. Cummings also noted "a probable small loose body in the posterosuperior aspect of the glenohumeral space, which was not seen on the prior study." R. 360.
On August 19, 2011, Daniel J. Colache, Plaintiff's chiropractor, completed an Examination Report. He noted that Plaintiff was diagnosed with a rotator cuff tear with shoulder instability on right, with an onset date of 2008. R. 373.
Dr. David Lunt also completed an Examination Report on December 19, 2011. He noted that Plaintiff's primary diagnosis is right shoulder torn rotator cuff. He also wrote: "disabled". R. 374-75.
On or around March 1, 2012, Mr. Colache, in response to a request for medical records regarding Plaintiff, wrote to the Social Security claims adjudicator: "I have not treated in over a year sorry cannot fill out paperwork." R. 376.
On April 4, 2012, Dr. Mark Jacknin, a State agency medical consultant, reviewed Plaintiff's medical records and noted that Plaintiff's June 15, 2010 MRI showed a nearly complete tear of the distal supraspinatus. The July 2011 MRI, however, demonstrated "substantial improvement of the appearance of the supraspinatus since prior study, w a small partial tear seen distally in ant. supraspinatus @ current time as opposed to the nearly complete tear of the distal supraspinatus noted prev." Dr. Jacknin also observed "a probable small loose body in the posteriosuperior aspect of glenohum space, which wasn't seen on prior study." R. 127.
On April 17, 2012, Plaintiff underwent an MRI of his right shoulder. Dr. Cummings observed "once again . . . a small tear involving the distal supraspinatus, stable since the previous exam." Dr. Cummings reported that "there is little overall change since the prior study of 7/11 with a small tear of the distal supraspinatus noted and unchanged between studies." He did not see the loose body noted in the July 2011 MRI and noted that it "has resolved or been removed between studies." R. 377.
On June 11, 2012, Dr. Jacknin also reviewed Plaintiff's April 17, 2012 MRI and observed "little overall changes since prior study of 7/11 w a small tear of the distal supraspinatus noted & unchanged between studies." He also noted that "current MRI shoulder showing improvement including tear is `small' and prior small loose body has resolved." R. 131.
Dr. Lunt completed a second Examination Report on June 19, 2012, in which he indicated that the date of onset of Plaintiff's right shoulder torn rotator cuff was 2010. R. 383. He opined that Plaintiff is "unable to work." Dr. Lunt also noted that "MRI shows significant damage to right rotator cuff indicating a nearly complete tear of the distal supraspinatus. With his current insurance it's extremely difficult to obtain the needed surgical repairs." R. 384.
On March 10, 2014, Plaintiff was examined by Dr. Lunt for reevaluation of his rotator cuff tear. The following week, on March 17, 2014, Plaintiff underwent an MRI of his right shoulder, which Dr. Lunt opined showed "a superimposed full thickened tear of the distal supraspinatus measuring 2.8 × 2.5 cm." Dr. Lunt also noted that "the groove for the long head biceps tendon is shallow and the tendon is very poorly seen which is consistent with a history of chronic biceps tear." R. 12. Dr. Michael Dutka, a radiologist, also examined the March 2014 MRI and noted moderate rotator cuff tendonosis and bursitis, superimposed full-thickness distal supraspinatus tear measuring 2.8 × 2.5 cm, and mild-to-moderate AC osteoarthritis with spurring and subacromial spur. Dr. Dutka also opined that the "supraspinatus tear has enlarged" in comparison to previous reports. R. 13-15.
On May 27, 2014, Dr. Pepe submitted a letter "as an appeal of [Plaintiff's] disability decision." Dr. Pepe explained that the platelet rich plasma injection into the rotator cuff tear "was intended as a stopgap measure to help stabilize the rotator cuff tear and prevent further progression." He noted that Plaintiff's July 2011 MRI showed improvement of the tear, but explained that a March 2014 MRI demonstrated that the tear had worsened into a "large tear, which necessitates repair." R. 10.
On February 29, 2012, Plaintiff completed a Function Report regarding his activities of daily living. He noted that he suffers from pain, inflammation, throbbing, and burning that affect his sleep. R. 305. He also reported that he is able to do light household chores and cooking, but that he must use his non-dominant side due to his right shoulder injury. R. 306. Plaintiff indicated that his condition affects his ability to lift. R. 308. Plaintiff also reported that he wears an arm sling once in a while when his arm becomes fatigued or his pain starts. When asked if the sling was prescribed by a doctor, Plaintiff noted "only by suggestion." R. 310. Plaintiff explained that he "was instructed to do a rehab program such as light stretching with bands, or weights to keep the joints from freezing up or clotting. Reference doctor's report. This would be pre surgery + post." R. 311.
Plaintiff underwent a consultative examination with Dr. Ronald Bagner on May 22, 2012. Plaintiff reported pain in his right shoulder which disrupts his sleep and that he cannot do any pushing, pulling, or lifting. Dr. Bagner observed that Plaintiff "ambulates without difficulty, gets on and off the examining table without difficulty, dressed and undressed without assistance." He also noted that "there is pain on movement of the right shoulder" and that "the right shoulder shows 0-90 degrees forward elevation, 0-90 degrees abduction, internal rotation is 0-50 degrees, and normal external rotation." Dr. Bagner's impression was "tear distal right supraspinatus." R. 379.
On or about January 10, 2012, Plaintiff filed applications for Social Security disability insurance benefits ("DIB") and supplemental security income ("SSI"), alleging an onset date of January 10, 2012. R. 256-71. The claims were denied initially on or about June 27, 2012. R. 123-33. On October 23, 2012, upon reconsideration, the Social Security Administration found that Plaintiff was disabled as of October 23, 2012, but not as of his alleged onset date. R. 165-73. Thereafter, on March 20, 2013, Plaintiff requested a hearing before an ALJ. R. 225-26.
On December 3, 2013, ALJ Jonathan L. Wesner held a hearing, at which Plaintiff appeared without an attorney, and provided testimony. Plaintiff's friend Ilene also attended and interacted with the ALJ. Additionally, William T. Slaven, III, an impartial vocational expert, provided testimony. R. 47-102. Mr. Slaven testified that, due to Plaintiff's overhead reaching limitations, he would be limited to a partial range of light work. R. 93. Additionally, he testified that Plaintiff could perform 60-70% of jobs in the light range and that, even if Plaintiff completely avoided overhead reaching, Plaintiff could still perform "300, 400 of the 1,600 light titles Social Security recognizes." R. 93. Thereafter, on February 25, 2014, the ALJ issued an unfavorable decision. R. 34-41. On February 18, 2015, the Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final determination of the Commissioner. R. 1-5.
On February 25, 2014, the ALJ concluded that Plaintiff was not disabled under the Social Security Act from his alleged onset date, January 10, 2012, through October 22, 2012, the day before he was found disabled by the Social Security Administration on reconsideration. R. 31-41.
At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of January 10, 2012. R. 36. At Step Two, the ALJ determined that Plaintiff suffered from the following severe impairment: right shoulder rotator cuff tear. R. 36. At Step Three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. In making this determination, the ALJ specifically reviewed Listing 1.02. R. 37-38.
Before turning to Step Four, the ALJ assessed Plaintiff's Residual Functional Capacity ("RFC"). The ALJ determined that Plaintiff had the RFC "to perform light work as defined in 20 CFR 404.1567(b) except overhead reaching with the right upper extremity is limited to occasionally." R. 38.
The ALJ did not make a determination at Step Four and instead proceeded directly to Step Five, utilizing the expedited process outlined in 20 C.F.R. § 404.1520(h), which states, in relevant part:
20 C.F.R. § 404.1520(h).
Finally, at Step Five, the ALJ concluded that Plaintiff was not disabled because there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. R. 40. The ALJ relied upon Medical Vocational Rule 202.14, 20 C.F.R. Part 404, Subpart P, Appendix 2, as a framework. The ALJ reasoned as follows:
R. 40-41.
The Court has labored over each of Plaintiff's several letters and submissions in order to identify and articulate the legal arguments upon which Plaintiff grounds his appeal. Although it is unclear from Plaintiff's submissions, the Court understands him to be challenging the ALJ's determination based upon alleged bias. Plaintiff also appears to take issue with the determination of the ALJ and the vocational expert that jobs exist in the national economy that he can perform because he has been unable to secure a job over the past several years, despite his diligence in applying. Pl. Mar. 3, 2017 Letter [Docket No. 32]. Finally, Plaintiff claims that he was injured in 2008, rather than on his alleged onset date of January 10, 2012, and appears to argue that, as a result, he is entitled to social security benefits prior to his alleged onset date.
Individuals claiming disability benefits have a right to a full and fair hearing.
Plaintiff contends that his applications "were declined for
First, Plaintiff contends, in essence, that all ALJs are biased. He states: "Even the SSD/SSA denial letter said this judge may have abused his power. A survey and research says that only 2% to 3% of an (ALJ) judges [sic] will grant a case. Yes, they are
Additionally, Plaintiff contends that the ALJ "in my opinion was somewhat biased, rude, and [condescending]." Pl. Apr. 14, 2015 Letter [Docket No. 7]. He further claims that "[d]uring the questioning by the [ALJ] you will clearly hear in the transcript every time he ask[ed] me a question I was never allow[ed] enough time to fully give my comments or statement, he constantly and rudely interrupted me and would rush to another question and repeat the same tactics that was very annoying and unprofessional." Pl. Apr. 27, 2015 Letter [Docket No. 2]. Plaintiff also indicated that he was insulted by the ALJ's question as to whether Plaintiff and his friend Ilene, who accompanied Plaintiff to the hearing, lived together.
The Court has reviewed the transcript of Plaintiff's hearing before the ALJ. R. 49-101. Although the Court cannot assess the ALJ's demeanor or tone based upon the written transcript alone, the transcript suggests that, at times, the ALJ was frustrated and impatient with Plaintiff. This Court, however, finds no fault in the ALJ's conduct. Nothing in the record indicates that Plaintiff was deprived of the opportunity to present evidence to the ALJ or that the ALJ exhibited bias against Plaintiff, such that Plaintiff was deprived of his right to a full and fair hearing.
For example, the hearing lasted over one hour and the ALJ permitted Plaintiff to speak at length about his alleged condition, his past work history, and his medical records. Plaintiff made clear that no other records exist other than those already in the ALJ's possession. The ALJ nevertheless expressed his commitment to further developing the factual record by obtaining additional medical records from Plaintiff's doctors, to the extent those records existed. Furthermore, the ALJ repeatedly explained the benefits of obtaining counsel to Plaintiff.
To the extent the ALJ was terse or frustrated with Plaintiff, however, such behavior did not evince such bias that would warrant a new hearing.
Next, Plaintiff appears to challenge the ALJ's reliance on the vocational expert's testimony and, thus, the ALJ's conclusion that there are jobs that exist in the national economy that Plaintiff can perform even with his limitations. At Step Five, the ALJ must evaluate the claimant's ability to adjust to other work through consideration of Plaintiff's RFC and "the vocational factors of age, education, and work experience." 20 C.F.R. § 416.960(c)(1). This other work must exist in significant numbers in the national economy.
Plaintiff attacks the ability of the Commissioner to rely upon such data concerning the numbers of available positions, in light of his own experience and difficulty in securing a job. Plaintiff argues that:
Pl. Mar. 3, 2017 Letter [Docket No. 32].
While Plaintiff's predicament is unfortunate, the Court nonetheless rejects this argument outright as it is contrary to the regulations and case law, which have long recognized that an ALJ may appropriately rely upon the testimony of a vocational expert while utilizing the Medical-Vocational Guidelines as a framework.
The only issue before the ALJ was whether Plaintiff was disabled from his alleged onset date, January 10, 2012, through October 22, 2012, the day before he was found disabled by the Social Security Administration upon reconsideration. Yet Plaintiff now appears to contend that he was originally injured in 2008 and that he is, therefore, entitled to benefits for at least two years prior to his alleged onset date. Pl. Oct. 29, 2016 Letter [Docket No. 24]. Plaintiff writes: "In conclusion I would like to exercise my onset rule considering the pre application two year injurie[s] dates 2009 to 2012 for pain and suffering at your discretion."
Pl. Mar. 3, 2017 Letter [Docket No. 32] (underlining and bullets in original).
As a preliminary matter, the Court notes that Plaintiff's unsupported statement that he was disabled as of 2008 is of no moment. Regardless of whether Plaintiff now claims he was disabled as of 2008, Plaintiff protectively applied for DIB and SSI on January 10, 2012, alleging an onset date of January 10, 2012. R. 256-71, 279.
A claimant does not become eligible to receive SSI benefits until the claimant has applied for SSI benefits and is found to be disabled. 20 C.F.R. § 416.202. Moreover, once a claimant meets all other eligibility requirements for SSI, "the earliest month for which [the Social Security Administration] can pay [the claimant] benefits is the month following the month [the claimant] filed the application." 20 C.F.R. § 416.335;
Critically, however, a claimant does not become eligible to receive either DIB or SSI until he becomes disabled.
Plaintiff's medical records are not particularly voluminous. The records regarding Plaintiff's rotator cuff tear during the relevant period include documentation from Dr. Pepe, Dr. Lunt, consultative examiner Dr. Bagner, and state agency examiner Dr. Jacknin. The record also includes the MRI reports by Dr. Cummings regarding Plaintiff's June 2010, July 2011, and April 2012 MRIs. The ALJ addressed each of the medical records in his decision and noted the weight given to the various medical opinions.
Moreover, as the Court explained in further detail above,
Here, the vocational expert testified that there are jobs that exist in significant numbers in the national economy that someone with Plaintiff's age, education, and work experience, and who was limited to no overhead reaching could perform. R. 93. In his decision, the ALJ utilized the Medical-Vocational Guidelines as a framework for his disability determination and, in light of the vocational expert's testimony at the hearing, determined that Plaintiff was not disabled because there were jobs that existed in significant numbers in the national economy that Plaintiff could perform despite his limitation to only occasional overhead reaching.
As a result of the ALJ's determination, Plaintiff did not become eligible for DIB or SSI until he was found to be disabled by the Social Security Administration on reconsideration as of October 23, 2012. Plaintiff has not established that he should have been found disabled as of some date prior to October 23, 2012. Therefore, contrary to Plaintiff's contentions, Plaintiff's eligibility for benefits began on October 23, 2012, the date he became disabled, and no earlier.
Accordingly, for the foregoing reasons, the Court affirms the ALJ's determination that Plaintiff was not disabled during the period January 10, 2012 through October 22, 2012. An appropriate Order shall issue on this date.
