Paletta v. Astrue

Filing 9

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal of the Commissioners decision is denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/13/14. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT J. PALETTA,

:
:CIVIL ACTION NO. 3:12-CV-1754
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,1
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
partial denial of Disability Insurance Benefits under Title II of
the Social Security Act (“Act”).

(Doc. 1.)

The Administrative Law

Judge (“ALJ”) who evaluated the claim found that Plaintiff was
disabled as of December 31, 2008, his last date insured, rather
than as of the alleged onset date of August 1, 2007.

(R. 25-26.)

Plaintiff claims this is error, and the Court should reverse the
decision and award benefits accordingly.

(Doc. 1.)

For the

reasons discussed below, we conclude Plaintiff’s claimed error is
without merit and, therefore, we deny his appeal of the
Commissioner’s decision.
I. Background

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 § 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

On January 6, 2009, Plaintiff filed applications for Title II
Disability Insurance benefits (“DIB”) and Title XVI Supplemental
Security Income (“SSI”).

(Doc. 6 at 1.)

Plaintiff, whose date of

birth is December 18, 1954, first asserted that he became unable to
work on December 1, 2003, (R. 159) and later amended the onset date
to August 1, 2007.

(R. 138.)

For DIB purposes, Plaintiff remained

insured through December 31, 2008.

(R. 18.)

He listed the

illnesses, injuries, or conditions that limited his ability to work
as “herniated discs in lower back.”

(R. 184.)

Plaintiff’s SSI application was approved at the initial level
with an onset date of January 6, 2009–-the date of the application.
(Doc. 6 at 2.)

The disability insurance application was denied at

the initial level and was referred to an ALJ for a hearing
following Plaintiff’s appeal of the initial decision.
The hearing was held on July 20, 2010.

(R. 35.)

(Id.)
The issue at

the hearing was the onset date of disability for purposes of
Disability Insurance Benefits with Plaintiff claiming an onset date
of August 1, 2007.2

(R. 37-42.)

Plaintiff and his counsel agreed

there were no treatment records for the years 2007 and 2008.
46, 48-49.)
coverage.

(R.

The reason given was Plaintiff’s lack of medical
(Id.)

Plaintiff testified that he managed the pain with

Advil and cold packs.

(R. 49.)

He used a cane to help him get

2

In DIB cases, disability may be paid for as many as twelve
months before the month an application is filed. SSR-83-20, 1983
WL 31249, at *1 (S.S.A.). DIB are also subject to a five-month
waiting period as set out in 42 U.S.C. § 423. In SSI cases, there
is no retroactivity of payment. Id.
2

around and did exercises recommended by his brother-in-law who is a
physical therapist.

(R. 50.)

Plaintiff further testified that,

during the relevant time period, he drove a car locally, he did not
do any strenuous work, he was able to dress and take care of
himself, and he did simple household chores.

(R. 51-54.)

When

Plaintiff’s attorney asked him if his symptoms were as bad in 2007
and 2008 as they were in 2009, Plaintiff responded that “[i]t
wasn’t as bad, but it was, it was bad.”

(R. 55-56.)

Plaintiff

explained that he was extremely stiff when he got up in the morning
and had pain radiating down his right leg in 2007 and 2008.

(R.

56.)
A discussion occurred toward the end of the hearing between
the ALJ and Plaintiff’s counsel regarding appointment of a medical
advisor for determination of the disability onset date.
66.)

(R. 63-

Plaintiff’s counsel requested the ALJ to use a medical expert

to determine the onset date.

(R. 66.)

The ALJ ultimately

appointed Dr. John Menio pursuant to SSR 82-30.

(Doc. 6 at 3; R.

25.)
On September 17, 2010, the ALJ issued a partially favorable
decision.

(R. 18-27.)

The ALJ found that “[b]eginning on December

31, 2008, the severity of the claimant’s impairments has medically
equaled the criteria of section 1.04 of 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).”

(R. 25.)

In support of this conclusion, the ALJ provided the following
analysis:
The claimant has a number of medical
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problems, including, lumbar back pain,
herniated discs of lumbar spine and spinal
stenosis with radiculopathy. These
impairments are severe insofar as they have
caused nerve root compression characterized
by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss
or atrophy with associated muscle weakness
accompanied by sensory or reflex loss and
positive straight leg raising tests results.
In reaching this conclusion, the
undersigned finds that beginning on December
31, 2008, the claimant’s allegations
regarding his symptoms and limitations are
generally credible.
On July 30, 2010 Dr. John Menio, M.D. in
response to a Medical Interrogatory gave his
opinion that claimant equals the listing
1.04A with a herniated disc of the lumbar
spine and spinal stenosis with radiculopathy.
He further opines that the earliest date
claimant equaled this listing was “prior to
1/7/09" as per “Dr. Kumar’s note of 1/12/10
initial evaluation of pain in his lower back
for past 14 years” (Exhibit 9F).
In follow up questions to the Medical
Interrogatories in August of 2010 Dr. Menio
opined that he does not reasonably believe
the listing equivalence would have existed
for the past 14 years due to there not being
any medical evidence to support this period.
However, he did opine that claimant’s
impairment equivalency would “likely have
existed prior to August 1, 2007", but he
failed to indicate what evidence he was
relying on to substantiate this opinion
(Exhibit[] 10F).
The opinion that claimant equals a
listing “prior to 1/7/09" is given
significant weight. The undersigned is
willing [to] set the established onset date
to December 31, 2008 so as claimant can be
disabled under Title II on the date he was
last insured due specifically to the opinion
of Dr. Menio that claimant equaled the
listing prior to January 7, 2009 and was
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“likely” to equal the listing back to August
1, 2007. While there [is] no medical
evidence to support an established onset all
the way back to August 2007, the undersigned
does find there to be a reasonable and
sufficient support to set the established
onset on December 31, 2008, which is only
seven days prior to January 7, 2009. Clearly
if claimant’s back equaled a listing as of
January 7, 2009 then it is not entirely
unreasonable, nor unfounded to presume that
just seven days prior, on December 31, 2008
his back would likely have been in the same
physical condition and thus equaling the
listing as of seven days prior. In addition,
claimant’s treating physician Dr. Van Der
Sluis opined in accordance with the
undersigned’s finding. He opined claimant
was completely and permanently disabled as of
December 31, 2008 from any work (Exhibit 6F).
As to the basis for reaching further
back in time, in the absence of any clear
evidence of some treatment, x-rays, MRIs,
clinical visits or some indication of medical
attention for the low back problem that would
sustain a finding of a severe, medically
determinable impairment[], there is no
evidentiary foundation upon which [to] lay a
logical bridge to a 2007 onset of disability
from the evidence present in this record.
Simply put, while the treating physician
opined that the claimant’s listing level
severity existed as of December 31, 2008, and
subsequently a reviewing medical consultant
initially opined that the condition was
present at that severity prior to January 7,
2009, the subsequent extension of this
opinion by the reviewing, non-treating
physician to a timeframe in 2007 upon followup inquiry by the claimant’s counsel, does
not rest on any supportable medical
information in the record, that would have
been contemporaneous or near contemporaneous
with the 2007 timeframes. Therefore, the
undersigned is able to find that disability
is established prior to December 31, 2008,
but not going back as far as August 1, 2007.
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Based upon the above and all of the
medical evidence of record, the undersigned
finds that claimant equaled the listing 1.04A
as of December 31, 2008.
(R. 25-26.)
The ALJ therefore determined that “[b]ased on the application
for a period of disability and disability insurance benefits
protectively filed on January 6, 2009, the claimant has been
disabled under sections 216(i) and 223(d) of the Social Security
Act beginning on December 31, 2008.”

(R. 26.)

On October 12, 2010, Plaintiff filed a timely request with the
Social Security Administration Appeals Council for review.
13.)

(R. 12-

In a Notice dated July 23, 2012, the Appeals Council denied

Plaintiff’s Request for Review (R. 1-5), making the ALJ’s decision
the decision of the Commissioner.
Plaintiff filed this action on September 4, 2012.

(Doc. 1.)

He filed his brief in support of the appeal on December 31, 2012,
in which he asserts the ALJ improperly assessed the evidence and
wrongly determined Plaintiff was not disabled as of August 1, 2007.
(Doc. 1 at 2.)
2013.

(Doc. 7.)

Defendant filed his opposition brief on January 30,
With the filing of Plaintiff’s reply brief (Doc.

8) on February 11, 2013, this matter became ripe for disposition.
II. Discussion
A. Relevant Authority
The Commissioner is required to use a five-step analysis to

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determine whether a claimant is disabled.3

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

3

“Disability” is defined 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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
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).
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that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

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).

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); Plummer, 186 F.3d at 427
(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).

Therefore, we will not set aside the Commissioner’s final

decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.

Hartranft, 181

F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
8

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

An ALJ’s decision can

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

Matthews

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).

See Dobrowolsky v.

These proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an 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 who 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 in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.

Further, the court in Dobrowolsky

noted “the cases demonstrate that, consistent with the legislative

9

purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it 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 rational.”

Dobrowolsky, 606 F.2d at 407.

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

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.”

Id. at 706-07.

However, the

ALJ need not undertake an exhaustive discussion of all the
evidence.
2000).

See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

“There is no requirement that the ALJ discuss in its

opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).

Hur v.

Only where the ALJ

rejects conflicting probative evidence must he fully explain his

10

reasons for doing so.

See, e.g., Walker v. Comm’r of Soc. Sec., 61

F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d 110, 114 (3d Cir. 1983)).

Further, the ALJ does not need to

use particular language or adhere to a particular format in
conducting his analysis.
Cir. 2004).

Jones v. Barnhart, 364 F.3d 501, 505 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
B.

Plaintiff’s Alleged Error
As set out above, Plaintiff asserts the ALJ erred on the basis

that he improperly assessed the evidence and wrongly determined
Plaintiff was not disabled as of August 1, 2007.

(Doc. 1 at 2.)

In his supporting brief, Plaintiff presents the issue as “[w]hether
the ALJ’s decision should be reversed since the award of disability
insurance benefits with an onset date of December 31, 2008 is not
supported by substantial evidence as it directly contradicts with
the impartial expert medical opinion of the SSR 83-20 medical
advisor who opined Claimant was likely disabled as of August 1,
2007.”

(Doc. 6 at 5.)

We conclude reversal is not appropriate as

the ALJ’s decision is supported by substantial evidence.
SSR 83-20 states that for disabilities of non-traumatic
origin, “the determination of onset involves consideration of the
11

applicant’s allegations, work history, if any, and the medical and
other evidence concerning impairment severity.”
31249, at *3 (S.S.A.).

SSR 83-20, 1983 WL

When precise evidence is not available and

there is a need for inferences to be made, the ruling provides
further guidance.
In some cases, it may be possible, based
on the medical evidence to reasonably infer
that the onset of a disabling impairment(s)
occurred some time prior to the date of the
first recorded medical examination, e.g., the
date the claimant stopped working. How long
the disease may be determined to have existed
at a disabling level of severity depends on
an informed judgment of the facts in the
particular case. The judgment, however, must
have a legitimate medical basis. At the
hearing, the administrative law judge (ALJ)
should call on the services of a medical
advisor when onset must be inferred.
Id. at *3.
Here the services of a medical advisor were enlisted following
Plaintiff’s request made at the ALJ hearing.

(R. 66.)

The medical

advisor, John Menio, M.D., opined in the “Medical Interrogatory
Physical Impairment(s)–-Adults” form completed on July 30, 2010,
that the “earliest date” claimant equaled the listing was “prior to
1/7/09" based on “Dr. Kumar’s note of 1/12/10 ‘initial evaluation
of pain in his lower back for past 14 years.’”

(R. 301.)

Plaintiff’s counsel sent Dr. Menio follow-up questions on
August 9, 2010.

(R. 303.)

Counsel asked “Do you reasonably

believe the listing equivalence would have existed for the past 14
years?”.

Dr. Menio responded, “Unable to go back 14 yrs.
12

No

medical evidence.”

(Id.)

The next question was “If not, do you

believe the Claimant’s impairment equivalency would likely have
existed prior to August 1, 2007?”.
“yes.”

(Id.)

(Id.)

Dr. Menio answered

He did not provide any further explanation.

First, we note that nothing in SSR 83-20 or case law requires
the ALJ to rely solely on a medical advisor’s speculative opinion
in the circumstances presented here.

We find significant the fact

that the question posed by Plaintiff’s counsel was somewhat
ambiguous in that it did not ask whether the listing was equaled as
of August 1, 2007, but whether it was “likely” equaled.

(R. 303.)

The fact that Dr. Menio did not provide an explanation for his
response (id.) is also significant in that SSR 83-20 requires more.
How long an impairment “may be determined to have existed at a
disabling level of severity depends on an informed judgment of the
facts in a particular case.
legitimate medical basis.”
(emphasis added).

This judgment, however, must have a
SSR 83-20, 1983 WL 31249, at *3

Finally, and most importantly, the ALJ’s

determination is supported by evidence of record in that
Plaintiff’s treating physician, Dr. Ralf Van Der Sluis, stated that
“Mr. Paletta has been completely and permanently disabled since
12/31/2008 for any type of work.”

(R. 270.)

This assessment

comports with Dr. Menio’s original statement that Plaintiff’s
impairment equaled a listed impairment before January 7, 2009.
301.)

Thus, the ALJ had valid reasons to reject the August 1,

13

(R.

2007, disability onset date.

Because the December 31, 2008, onset

date is consistent with the date identified by Plaintiff’s treating
physician, a finding that the ALJ’s determination is based on
substantial evidence is warranted.
III. Conclusion
For the reasons discussed above, Plaintiff’s appeal of the
Commissioner’s decision is denied.

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 13, 2014

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