Roof v. Astrue

Filing 13

MEMORANDUM (Order to follow as separate docket entry)For the reasons expressed above, Plaintiffs appeal of the Commissioners decision is granted. An Order consistent with these findings will be filed contemporaneously herewith.Signed by Honorable Richard P. Conaboy on 12/16/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Donald Roof

:

Plaintiff,

:

v.

: Case No. 3:12-CV-1201

Carolyn W. Colvin,1
Acting Commissioner
of Social Security,

:
: (Judge Richard P. Conaboy)

Defendant.

:

_________________________________________________________________
Memorandum
I.

Background.
We consider here Plaintiff’s appeal from the Commissioner’s

May 4, 2012 denial of Disability Insurance Benefits. (“DIB”) under
Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401433.

The Administrative Law Judge (“ALJ”) who originally ruled on

Plaintiff’s claim found that he failed to prove that he was
disabled for the period from July 1, 2004 (the Plaintiff’s alleged
onset date) through the date of the ALJ’s decision (December 15,
2010).

(R.23).

Plaintiff seeks a closed period of disability from

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
1

July 1, 2004 through February 23, 2011.

2

The Plaintiff was 48 years old at the time of the hearing on
this matter. (R. 59).

The Plaintiff testified that he served three

years in the military and was honorably discharged.

(R. 63).

Afterward, Plaintiff was generally employed full time doing heavy
construction work for a period of approximately 23 years.

(R. 64).

The Plaintiff has not engaged in substantial gainful activity since
July 1, 2004 (R. 25).

Since he last worked, Plaintiff has gained

45 pounds due to inactivity and from the effect of steroids that
have been prescribed for his autoimmune problems. (R. 60-61).
At the hearing before the ALJ, the Plaintiff testified
extensively concerning the debilitating effects of his psoriasis,
asthma, carpal tunnel syndrome, back pain, and foot pain.
85).

(R. 65-

The ALJ found as a fact that the Plaintiff does suffer from

psoriasis, asthma, carpal tunnel syndrome, moderate bilateral L5
front/S1 radiculopathy, early polyneuropathy, and spinal stenosis
at L4/L5 and that each of these impairments is severe.

(R. 25).

The ALJ who originally evaluated this claim found that, while
the Plaintiff’s musculoskeletal, respiratory, skin, and
neurological disorders are “severe” impairments, they do not
“precisely meet or medically equal the criteria of any impairment
described in the Listing of Impairments, Appendix 1, Subpart P,
2

On August 24, 2012 an ALJ other than the one that denied the DIB claim at issue in this
case issued a favorable decision on a subsequent claim filed by Plaintiff. The subsequent DIB claim
was approved effective February 24, 2011. (Doc. 11 at 2).
2

Regulation No. 4.”

(R. 27)).

The ALJ also found that the claimant

“had the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b)...”, but that “due
to psoriasis the claimant should avoid harsh chemical substances.”
(Id).

Finally, the ALJ found that the “claimant’s ability to

perform all or substantially all of the requirements of this level
(light) of work has been impeded by additional limitations.”

(R.

31). These limitations notwithstanding, the ALJ determined, on the
basis of a hypothetical question phrased to an impartial vocational
expert, that the claimant retains the ability to perform the
requirements of various representative occupations.

(Id).

Plaintiff contends that the ALJ erred, inter alia, in: (1)
failing to fulfill his affirmative obligations to assist the
Plaintiff in developing the record and exhibiting hostility and
bias toward the claimant; (2) failing to properly consider the
Plaintiff’s complaints of pain; (3) failing to explain why he
rejected the treating source testimony of Dr. Joseph Cama; and (4)
presenting a hypothetical question to a vocational expert that did
not include all of Plaintiff’s impairments.
II.

(Doc. 11 at 11).

Standard of Review.
This Court’s review of the Commissioner’s final decision is

limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. §405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d. Cir. 1999).

3

A reviewing Court is

“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d. Cir. 1999).
mere scintilla.

Plummer v. Apfel 186 F.3d

Substantial evidence means “more than a

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Richardson

v. Perales, 402 U.S. 389, 401 (1971); See also Chandler v.
Commissioner of Social Security, 667 F3d. 356, 359 (3d. Cir. 2011).
Therefore, we will not set aside the Commissioner’s decision if it
is supported by substantial evidence, even if we would have reached
a different factual conclusion.

Hartranft supra at 360 (citing

Monsour Medical Center v. Heckler, 806 F2d. 1185, 1190-91 (3d. Cir.
1986).

Even where the Commissioner’s factual findings are

supported by substantial evidence, a Court may review whether the
Commissioner, in making his findings, applied the correct legal
standards to the facts presented.
F.2d, 445, 447 (3d Cir. 1983).

Friedberg v. Schweiker, 721

An AlJ’s decision can only be

reviewed by a court based upon the evidence that was before the ALJ
at the time he or she made his or her decision.

Matthews v. Apfel,

239 F3.d 589, 593 (3d. Cir. 2001).
Significantly, the Third Circuit has repeatedly emphasized the
special nature of proceedings for disability benefits.

See

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d. Cir. 1979).

Social

Security Disability proceedings are not strictly adversarial, but
rather the Social Security Administration is required to provide an

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applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and claim not charity but that which is
rightfully due as provided for in Chapter 7, Subchapter II, of the
Social Security Act.”

Hess v. Secretary of Health Education and

Welfare, 497 F.2d, 837, 840 (3d Cir. 1974).

As such, the agency

must take extra care in developing an administrative record and
explicitly weighing all evidence.

Dobrowolsky, supra at 406.

Further, the Dobowolsky court noted “the cases demonstrate that,
consistent with the legislative purpose, courts have mandated that
leniency be shown in establishing the claimant’s disability, and
that the Secretary’s responsibility to rebut is to be strictly
construed.”

Id.

Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.

If he has not done so

and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his decision is supported by
substantial evidence approaches an abdication of the Court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rationale.”

Dobrowolsky, supra at 407.

Cotter v. Harris, 642 F.2d 700, 705 (3d. Cir. 1981), the Circuit

In

Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected.

“Since it is apparent that the ALJ cannot

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reject evidence for no reason or the wrong reason, an explanation
from the ALJ of the reason why probative evidence has been rejected
is required so that a reviewing court can determine whether the
reasons for rejection were improper.”

Cotter, supra at 706-07.

Only where the ALJ rejects conflicting probative evidence must he
fully explain his reasons for doing so.

See, e.g., Walker v.

Commissioner of Social Security, 61 F. App’x 787, 788-89 (3d. Cir.
2003) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d. Cir. 1983).
III. Plaintiff’s Allegations of Error.
1.

The ALJ’s Neglect of his Obligation to Assist the
Claimant in Developing the Record.

After a thorough review of the transcript, the Court concludes
that Plaintiff’s first allegation must be credited.

The transcript

is replete with instances in which the ALJ displayed a brusque and
even hostile attitude toward the claimant.

The claimant was

repeatedly belittled for his lack of personal hygiene and the ALJ
appeared to be disdainful of the claimant due to his imprisonment
for a DUI offense.

The ALJ also treated the Plaintiff’s counsel in

a disrespectful manner and impeded counsel’s ability to present the
case by repeatedly interrupting him as he attempted to question his
client.

The ALJ also demonstrated unreasonable resistance to

Plaintiff’s counsel’s efforts to supplement the record with
additional medical evidence.

In sum, the ALJ’s attitude and the

atmosphere it engendered was a far cry from the non-adversarial,
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special nature of DIB proceedings mandated by Dobrowolsky, supra at
406.

Accordingly, it is necessary to remand this matter for

reconsideration by the Commissioner.
2.

The ALJ’s Failure to Properly Consider the Testimony of
Dr. Joseph Cama.

Plaintiff’s allegation of error with respect to the alleged
rejection of the testimony of treating physician Joseph Cama is not
supported by any specific reference to the testimony Cama provided
nor is it supported by reference to any portion of the record in
which the ALJ actually rejected said testimony.

The Plaintiff’s

allegations are supported only by caselaw axioms that are not
linked to any specific conclusions Dr. Cama reached.

The ALJ did

make findings that claimant had impairments consistent with Dr.
Cama’s diagnoses but did not conclude that these impairments were
disabling.

Since the Plaintiff does not direct the Court to any

testimony or evidence that Dr. Cama explicitly concluded that his
various diagnoses, individually or collectively, were disabling,
Plaintiff’s allegation in this regard must be rejected.
3.

The ALJ’s Failure to Properly Consider Plaintiff’s
Complaints of Pain.

When complaints of pain are supported by medical evidence,
they must be given great weight and the ALJ may not discount such
complaints without contrary medical evidence.
Schweiker, 765 F.2d 31, 37 (3d Cr. 1985).
7

Ferguson v.

Plaintiff’s testimony

included complaints about pain in his hands and feet.

These

complaints are supported by medical evidence - - diagnoses of
psoriasis, carpal tunnel syndrome, and early polyneuropathy –- and
these diagnoses are consistent with the complaints of pain
presented by the claimant.

Moreover, there is no contradictory

medical evidence to undermine Plaintiff’s complaints of pain.

For

that reason, a remand is necessary for further consideration
whether the ALJ rejected or discounted Plaintiff’s complaints of
pain without rational basis.
4.

The ALJ’s Failure to Allow the Vocational Expert to
Consider a Hypothetical Question that Included Reference
to all the Claimant’s Limitations.

The portion of the transcript (R. 86-95) that includes the
ALJ’s examination of the impartial Vocational Expert reveals that
the hypothetical question she was asked did not include limitations
that the ALJ ultimately recognized in his decision.

In eliciting

the Vocational Expert’s testimony that the claimant retained the
residual functional capacity to perform jobs such as ticket taker
and hostess, the ALJ did not appropriately factor into his
hypothetical the Plaintiff’s obvious limitations in manual
dexterity and digital manipulation caused by psoriasis and carpal
tunnel syndrome.

Indeed, once these limitations were factored into

the hypothetical, the Vocational Expert concluded that the claimant

8

could not perform the jobs in question.

3

simply ignored by the ALJ in his decision.

This conclusion was
The obvious defects in

the aforementioned hypothetical question posed by the ALJ require
remand of this matter.
IV.

Conclusion.
For the reasons expressed above, Plaintiff’s appeal of the

Commissioner’s decision is granted.

An Order consistent with these

findings will be filed contemporaneously herewith.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: December 16, 2013

3

After prompting from Plaintiff’s attorney, the ALJ did rephrase the hypothetical to include
“less than occasional” limitations of the use of Plaintiff’s hands (R. 40-41). How the ALJ concluded
that the limitations imposed by Plaintiff’s psoriasis and carpal tunnel syndrome were “less than
occasional” is a mystery.
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