JAMES M. MUNLEY, District Judge.
Before the court for disposition is the appeal of Plaintiff Thomas W. Graver of the Defendant Commissioner of Social Security Administration's denial of his applications for Social Security Disability Insurance Benefits (hereinafter "DIB") and Supplemental Security Income Benefits (hereinafter "SSI"). The matter has been fully briefed and is ripe for disposition.
On October 5, 2009, plaintiff was involved in an accident. The mountain bike he was riding was struck by a car. (Doc. 11, Administrative Record (hereinafter "R.") at 236). The accident caused injury to plaintiff's left leg/knee, and initially he was diagnosed with a comminuted fracture
In July 2010, plaintiff applied for SSI and DIB. He reported that he became disabled on the date of the bicycle accident, October 5, 2009. (R. at 111, 118). He stated that he was unable to work because of the injuries he sustained in the accident. (R. at 59).
On December 28, 2010, the applications for SSI and DIB were denied. Plaintiff then filed a written request for a hearing before an Administrative Law Judge (hereinafter "ALJ"). On February 14, 2012, ALJ Ronald Sweeda held a video conference hearing. On March 16, 2010, the ALJ issued a decision finding that plaintiff was not "disabled" and thus not entitled to DIB or SSI benefits. (R. at 16-24). Plaintiff then requested review from the Social Security Administration's Appeals Council. (R. at 11). Appeals Council denied the request for review, leaving the ALJ's decision as the final decision of the Defendant Commissioner of Social Security. (R. at 1-3). Plaintiff then filed the instant appeal by filing a complaint in this court. (Doc. 1, Compl.).
The court has federal question jurisdiction over this Social Security Administration appeal.
In reviewing a Social Security appeal, this court must determine whether "substantial evidence" supports the ALJ's decision.
The court should not reverse the Commissioner's findings merely because evidence may exist to support the opposite conclusion.
Substantial evidence exists only "in relationship to all the other evidence in the record,"
To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any
The Commissioner evaluates SSI and DIB claims with a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). This analysis requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity; (2) has an impairment, or combination of impairments, that is severe; (3) has an impairment or combination of impairments that meets or equals the requirements of a "listed impairment"; (4) has the "residual functional capacity" to return to his or her past work; and (5) if not, whether he or she can perform other work in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(I)-(v) and 416.920(a)(4)(I)-(v). Prior to addressing step four, the ALJ must determine the claimant's residual functional capacity.
In applying the five-step sequential analysis in the instant case, the ALJ found the following: Step 1-Plaintiff has not engaged in substantial gainful activity since the accident on October 5, 2009 (R at 18); Step 2 — Plaintiff has the following severe impairments: status post ACL repair, status post fibula fracture, and obesity (
The ALJ next determined plaintiff has the residual functional capacity (hereinafter "RFC") to:
(R. at 19). Then the ALJ proceeded to Step 4 of the sequential evaluation and concluded that plaintiff is unable to perform any past relevant work. (R. at 22).
Gerald Keating, an impartial Vocational Expert, testified at the hearing regarding jobs someone with plaintiff's limitations, as defined by the ALJ, could perform. Based upon the Vocational Expert's testimony, the ALJ concluded that considering the plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that he can perform.
The plaintiff's appeal alleges that the ALJ erred in the following three ways: 1) The Vocational Expert's testimony did not provide substantial evidence to support the defendant's decision that plaintiff is not "disabled"; 2) The ALJ did not evaluate all relevant evidence of record; and 3) The ALJ did not determine properly plaintiff's residual functional capacity. We will discuss these issues below.
The first issue raised by the plaintiff is whether the Vocational Expert's testimony provided substantial evidence to support a finding that plaintiff is not disabled. The third issue raised by the plaintiff is whether the ALJ properly determined plaintiff's RFC. These two issues are related, and we will discuss them as together.
In the instant case, the Vocational Expert testified that jobs exist in both the national area and central Pennsylvania area that someone with the plaintiff's limitations could perform. Such jobs include telephone receptionist, surveillance monitor and assembler. (R. at 23). Defendant points to the Vocational Expert's testimony as substantial evidence that plaintiff is not disabled from working.
The plaintiff alleges that the Vocational Expert's testimony does not provide substantial evidence to support the Commissioner's decision because it is does not take into account that the plaintiff depends on a cane to walk and stand. The ALJ did not provide this fact in the hypothetical question asked to the Vocational Expert, nor did he include it in his RFC determination. After a careful review, we agree with the plaintiff.
First, it is important to review the evidence that plaintiff presented regarding his use of a cane. At the hearing, plaintiff testified that he uses the cane all the time. (R. at 66). He indicated that he uses the cane mainly for stability. (
(
Additionally, plaintiff's physical therapy notes indicate that he uses a single point cane. (R. at 262-63, 272, 276, 283, 286, 300, 315, 317, 320, 328-29, 335, 337). For example, one of his physical therapists, Shawna Pringle, DPT, noted that plaintiff "was . . . instructed on proper use and placement of the cane which should be used on the non-involved side." (R. at 263). The notes also indicate that plaintiff was still using a cane on the date that he was discharged from physical therapy treatment September 13, 2010. (R. at 421). As late as March 2011, plaintiff's orthopedic surgeon, Matthew W. Reish, M.D., stated that plaintiff "uses a cane to ambulate." (R. at 424).
The ALJ himself took notice in his decision, that plaintiff uses a cane. (Doc. 11-2, at 21). Despite all this evidence, and despite mentioning plaintiff's use of a cane, the ALJ did not consider the cane when determining what plaintiff can still do — his RFC — nor did he provide an explanation for not mentioning the cane.
Specifically, the ALJ found the plaintiff's RFC as follows:
(R. at 19). After determining the plaintiff's RFC, the ALJ "asked the vocational expert whether jobs exist in the national economy for an individual with the [plaintiff's] age, education, work experience, and residual functional capacity." (R. at 23). The ALJ questioned the Vocational Expert regarding the RFC, which did not include the cane, and the ALJ did not add anything in his question to the Vocational Expert to inform him that he should consider that the plaintiff uses a cane. Thus, because the vocational expert based his conclusion on the ALJ's RFC, if the RFC is faulty, the VE's opinion does not provide substantial evidence to support the ALJ's conclusion that the plaintiff is not disabled.
The law provides that "the ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations."
This case is similar to the Western District of Pennsylvania case,
Defendant argues that plaintiff did not establish at the hearing that the cane was "medically required". He submitted no medical evidence to demonstrate the need for a cane or medical evidence detailing the circumstances for which his cane is allegedly required. Rather, plaintiff merely points to observations from various medical sources that he in fact uses a cane. In other words, the medical providers noted that plaintiff was using a cane, but they did not recommend it or prescribe it or indicate that he "needed" it. As the cane is not medically required, it need not be considered according to the defendant. After a careful review, we disagree with the defendant.
Under Social Security Rulings, a cane is an example of a "hand-held assistive device". Social Security Ruling 96-9p discusses such devices as follows:
Soc. Sec. Ruling 96-9p .
Here, the ALJ did not take into consideration the cane or plaintiff's statement that the cane was prescribed by his doctor.
The ALJ has a duty to hear and evaluate all relevant evidence to determine whether an applicant is entitled to disability benefits.
Defendant also argues that even if plaintiff does medically require a cane, it would have little impact on his ability to perform the unskilled jobs that the Vocational Expert identified. While this may be true, there simply is no evidence in the record to support this assertion. Thus, we cannot affirm the decision of the ALJ on this basis.
In conclusion, we find that plaintiff presented evidence that he needs to use a cane. The ALJ, without explanation, ignored this evidence in making his decision. Thus, it is appropriate to remand this case back to the defendant for further consideration of the evidence that plaintiff needs a cane.
The second issue plaintiff raises is whether the ALJ evaluated all the relevant evidence of record. Plaintiff argues that the ALJ improperly ignored multiple reports from his primary physical therapist, Shawna Pringle, DPT. Pringle treated plaintiff numerous times from the date of the accident until the date of the surgery, October 2009 to April 2010. Another physical therapist, David Hoy, MS, PT, treated him up to the time of his discharge. (R. at 421-23). Hoy's records indicate that plaintiff had not met many of the long term therapy goals. (R. at 422). Plaintiff argues that the records of Pringle and Hoy support his claim for disability but were ignored improperly by the ALJ.
The ALJ does not discuss this evidence in his decision. Plaintiff asserts that this is an error because, like the cane discussed above, while the ALJ need not accept the opinion of the therapists, he cannot dismiss it without explaining his reasoning. We agree. The law provides that "The ALJ has a duty to hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to disability benefits. The ALJ's decision must be in writing and contain findings of fact and a statement of reasons in support thereof. 20 C.F.R. § 404.939 (1980)."
As set forth above, the ALJ did not take into consideration that the plaintiff uses a cane with either his residual functional capacity or the question he asked the vocational expert. Accordingly, we find that the Vocational Expert's testimony does not provide substantial evidence to support the ALJ's conclusion. The ALJ also failed to give reasons for ignoring certain evidence such as the records from various physical therapists and the cane evidence. We will remand this action to the ALJ for further consideration consistent with this memorandum. An appropriate order follows.