Zielinski v. Astrue

Filing 12

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we conclude benefits are properly awarded to the Plaintiff. An appropriate Order is entered simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 12/13/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Susan Key Zielinski
Plaintiff
v.
Michael J. Astrue,
Commissioner of
Social Security

:
: Civil Action No. 3:12-CV-1904
:
: (Judge Richard P. Conaboy)
:

___________________________________________________________________
MEMORANDUM
By this Memorandum the Court addresses the claimant’s request
for a review of the Commissioner’s final decision finding that she
did not meet the Social Security Act’s definition of disability
from December 2, 2001, her alleged onset of disability date, to
December 31, 2007, her date last insured.
The Plaintiff, who was born on January 12, 1954 and until 2001
worked as a licensed practical nurse in a prison setting, claims
that she has a long history of back, neck and shoulder problems
which have caused extensive pain and significant limitations to any
work that she can do.

The Plaintiff alleged entitlement to Social

Security Disability Benefits as a result of her lower back
condition which both she and her doctors testified caused her
extensive pain and severe limitations.

In addition, the Plaintiff

and her doctors all testified that she suffered from neck and
shoulder problems until she underwent surgery on February 18, 2005.
The decision of the Administrative Law Judge, which was
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eventually approved and reaffirmed by the Commissioner, denied that
the Plaintiff was eligible for Social Security Disability Benefits.
The decision of the Administrative Law Judge essentially found that
the claimant had the residual functional capacity to perform light
work.

The decision of the Administrative Law Judge was based

largely on the Administrative Law Judge’s view of the Plaintiff’s
disability as well as and very significantly on the credibility of
the claimant’s testimony regarding her disability.
For the reasons cited herein, we will reverse the decision of
the Commissioner and award disability benefits to the claimant.
I. Authority
In reviewing an appeal from a Commissioner’s final decision in
Social Security matters, various courts have outlined decisions
which guide our thinking and there are many regulations that also
guide and direct the thinking of the Court and the Administrative
Law Judges.
For instance, a 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.”
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
means “more than a mere scintilla.

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Plummer v.

Substantial evidence

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, 91 S.Ct.

1420, 28 L.Ed.2d 842 (1971); Plummer, 186 F.3d at 427 (quoting
Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)).

The ALJ’s

findings of law, however, are subject to plenary review.

See

Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990); Podedworny v.
Harris, 745 F.2d 210, 221 n.8 (3d Cir. 1984).
Administrative law judges have the duty to develop a full and
fair record in social security cases.

See Brown v. Shalala, 44

F.3d 931, 934 (11th Cir. 1995); Smith v. Harris, 644 F.2d 985, 989
(3d Cir. 1981).

Accordingly, an ALJ must secure relevant

information regarding a claimant’s entitlement to social security
benefits.

Hess v. Secretary of Health, Education and Welfare, 497

F.2d 837, 841 (3d Cir. 1974).

In Hess, the Circuit Court reasoned

that “‘although the burden is upon the claimant to prove her
disability, due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in the
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.’”

Ventura v.

Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (quoting Hess, 497 F.2d at
840).
A hearing on a claim for social security benefits is not an
adversarial proceeding and the ALJ must assist a claimant in
establishing her claim.

Dobrowolsky v. Calilfano, 606 F.2d 403,
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406-07 (3d Cir. 1979).
Rulings addressing the residual functional capacity
determination and the definition of light work are pertinent in
this case.

Social Security Ruling 96-8 provides a detailed method

for determining Residual Functional Capacity (RFC).

The ruling

states what evidence is to be considered in the RFC determination:
The RFC assessment must be based on all of
the relevant evidence in the case record,
such as:
-

-

SSR 96-8.

Medical history,
Medical signs and laboratory
findings,
The effects of treatment,
including limitations or
restrictions imposed by the
mechanics of treatment (e.g.,
frequency of treatment, duration,
disruption to routine, side
effects of medication),
Reports of daily activities,
Lay evidence,
Recorded observations,
Medical source statements,
Effects of symptoms, including
pain, that are reasonably
attributed to a medically
determinable impairment,
Evidence from attempts to work,
Need for a structured living
environment, and
Work evaluations, if available.

The ruling also provides narrative discussion

requirements.
The RFC assessment must include a
narrative discussion describing how the
evidence supports each conclusion, citing
specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g. daily
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activities, observations). In assessing RFC,
the adjudicator must discuss the individual’s
ability to perform sustained work activities
in an ordinary work setting on a regular and
continuing basis, (i.e., 8 hours a day, for 5
days a week, or an equivalent work schedule),
and describe the maximum amount of each workrelated activity the individual can perform
based on the evidence available in the case
record. The adjudicator must also explain
how any material inconsistencies or
ambiguities in the evidence in the case
record were considered and resolved.
SSR 96-8.
Social Security Ruling 83-10 defines light work as follows:
The regulations define light work as lifting
no more than 20 pounds at a time with
frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the
weight lifted in a particular light job may
be very little, a job is in this category
when it requires a good deal of walking or
standing – the primary difference between
sedentary and most light jobs. A job also is
in this category when it involves sitting
most of the time but with some pushing and
pulling of arm-hand or leg-foot controls,
which require greater exertion than in
sedentary work; e.g., mattress sewing machine
operator, motor-grader operator, and roadroller operator (skilled and semiskilled jobs
in these particular instances). Relatively
few unskilled light jobs are performed in a
seated position.
‘Frequent’ means occurring from one-third to
two-thirds of the time. Since frequent
lifting or carrying requires being on one’s
feet up to two-thirds of a workday, the full
range of light work requires standing or
walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.
Sitting may occur intermittently during the
remaining time. The lifting requirement for
the majority of light jobs can be
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accomplished with occasional, rather than
frequent, stooping. Many unskilled light
jobs are performed primarily in one location,
with the ability to stand being more critical
than the ability to walk. They require use
of arms and hands to grasp and to hold and
turn objects, and they generally do not
require use of the fingers for fine
activities to the extent required in much
sedentary work.
SSR 83-10 Glossary.
An ALJ must give an applicant’s subjective complaints serious
consideration and make specific findings of fact concerning his
credibility.
2002).

See Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.

“Pain itself may constitute a disabling impairment.”

Smith

v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
Pain in itself may be a disabling condition.

The Third

Circuit Court of Appeals has stated that “even pain unaccompanied
by objectively observable symptoms which is nevertheless real to
the sufferer and is so intense as to be disabling will support a
claim for disability benefits.”
415 (3d Cir. 1981).

Taybron v. Harris, 667 F.2d 412,

When pain complaints are supported by medical

evidence, they should be given great weight and where a claimant’s
testimony as to pain is reasonably supported by medical evidence,
the administrative law judge may not discount claimant’s pain
without contrary medical evidence.

Ferguson v. Schweiker, 765 F.2d

31, 37 (3d Cir., 1985).
And finally, pertinent here, a treating doctor’s opinions are
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entitled to controlling weight, or at least substantial weight,
pursuant to Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001)
citing 20 C.F.R. § 404.1527(d)(2) and § 416.927(d)(2).
II. Discussion
In this case, the ALJ”s findings regarding Plaintiff’s
credibility are a key component of her decision.

In pointing out

the reasoning that she used in determining the Plaintiff’s
credibility the ALJ stated as follows:
There are multiple factors which serve
to discredit the claimant’s allegations of
disability before 2007. At the outset, the
undersigned notes that in order to receive
disability benefits under the Social Security
Act, she must establish disability before
2007. The undersigned attempted to keep the
claimant focused on her condition before 2007
as she tended to describe her current level
of functioning. First and foremost, the
claimant’s receipt of early retirement
benefits gave her little incentive to return
to other work and this undermines her
credibility with respect to her allegations
of disability.
Furthermore, the claimant admitted to
extensive activities of daily living, and in
her function report during the relevant time
period a typical day would include making
breakfast, lunch and dinner, she would also
do light cleaning, fold laundry or do dishes.
The claimant also watched her five-year-old
grandson two times a week. The claimant
would cook meals for her husband. She fed
the family cat and she would occasionally
feed the chickens. The claimant indicated
she had no trouble with dressing, bathing,
caring for her hair, shaving, feeding herself
or using the bathroom and could do all of
these activities unassisted. The claimant
did not need any special reminders to take
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care of personal needs and grooming or to
take her medicine. The claimant noted she
could walk outside, drive and ride in a car.
The claimant was able to grocery shop. The
claimant could pay bills, count change,
handle a savings account and use a checkbook
or money order. The claimant talked with her
mother daily and visited with her husband.
She visited with her mother once a month and
went to football games. The fact that the
claimant can do all of these activities and
yet she alleged she cannot work undermines
her credibility (Exhibit 3E).
The claimant was advised by Dr. Sheehe
to stop smoking in July of 2001. Dr. John R.
Tomedi saw the claimant on February 19, 2010
and it was noted the claimant suffered from
tobacco use disorder, which indicated the
claimant was still smoking almost ten years
later. The fact that the claimant has gone
against medical advice and her own best
interest by continuing to smoke also
undermines her credibility (Exhibit 1F, 15F).
Dr. Vahid Grami assessed the claimant’s
pain on January 19, 2011. He noted that the
claimant’s pain was present to such an extent
as to be distracting to adequate performance
of daily activities or work. He further
opined, that physical activity such as
walking, standing and bending greatly
increases pain causing abandonment of tasks
related to daily activities or work, and
medication severely limits the claimant’s
effectiveness in the work place due to
distraction, inattention and drowsiness.
This opinion is given little weight because
it is not an adequate residual functional
capacity. This opinion is vague.
Furthermore, this opinion was given in
January of 2011, which is out of the relevant
time period addressed in this decision.
Based on the above the undersigned gives Dr.
Grami’s opinion little weight. (Exhibit
16F).
The claimant noted in her testimony that
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her treating physicians Dr. Kraynak and Dr.
Tomedi instructed her to limit her bending,
stooping, and twisting. She was to do no
heavy lifting. Her doctors also told her not
to sit for long periods. However, her
doctors did not preclude her from all work.
These opinions are not complete residual
functional capacities and are vague.
Furthermore, these opinions were expressed
within testimony and it is difficult for the
undersigned to know the exact specifications.
However, both of these doctors treated the
claimant over a period of time and as a
result the undersigned gives some
consideration to these opinions that were
derived from the claimant’s testimony
(Exhibit 4F, 7F).
(R. 19-20.)
In reference to the findings of the ALJ regarding the
claimant’s residual functional capacity, the ALJ stated:
The undersigned gives great weight to
the State agency, which opined that the
claimant is capable of light work, and can
lift twenty pounds occasionally and ten
pounds frequently. The claimant can walk and
or stand six hours of an eight-hour workday
and sit for six hours out of an eight-hour
workday. Such an opinion is consistent with
the overall medical record and the above
residual functional capacity. Additional
limitations have been added to the claimant’s
residual functional capacity based upon
evidence that the claimant suffers from mild
spondylolisthesis at the L4-L5 level,
degenerative changes at L3-L4,L4-L5 and L5-S1
and based on the claimant’s own allegations
(Exhibit 11F).
(R. 20.)
Contrary to the findings of the ALJ there is ample testimony
in the record to demonstrate that while the ALJ talked about the

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Plaintiff making breakfast, lunch and dinner, the Plaintiff stated
that often times she could only make coffee or toast in the morning
and that she could no longer make what she described as big meals.
(R. 128-135.)
In regard to feeding cats and chickens, claimant testified
that while at one point she had as many as thirty (30) chickens,
her ability to take care of them diminished during the relevant
time period and she was able to carry only coffee cans full of
feed.

(R. 74.)

While the ALJ made a finding that the Plaintiff could do light
cleaning, folding laundry and doing the dishes, the claimant on the
other hand testified very clearly that she had great difficulty
doing these simple tasks and that while doing such simple tasks she
required frequent breaks, many times requiring her to actually lie
down for five to fifteen minutes at a time before she could return
to the task.

(R. 65, 70-71.)

The Plaintiff further testified that

this would happen five or six times on a good day and on a bad day
it was “a series of stopping and starting.”

(R. 71.)

The ALJ indicated that the Plaintiff could walk outside while
the Plaintiff testified she had to be very careful walking outside,
her leg would give out on her and she fell a lot (R. 70, 73).

The

ALJ noted the Plaintiff’s ability to drive and ride in a car but
did not note that the Plaintiff testified that her riding in a car
was extensively and gradually more and more limited (R. 66, 74), to

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the point that at times she had to lie down on the backseat of the
vehicle (R. 66).
The ALJ also indicated in her findings that the claimant had
the capacity to go grocery shopping while the claimant actually
testified that her shopping was gradually more and more limited
because of her limited ability to walk and her falling often and
that always when she would bring groceries home she would have to
have her husband or a sister unloading and oftentimes even shopping
for various groceries (R. 64, 72.).
In response to the ALJ’s findings regarding these various
activities which led the ALJ to determine that the Plaintiff could
do light work, counsel for the Plaintiff pointed out “the Plaintiff
attempts to do as much as she possibly can despite her severe
impairments but the ALJ mischaracterized these as undermining her
credibility.”

(Doc. 8 at 13.)

That statement truly summarizes the

condition of the claimant in this case.

Together with the

references made to the record herein, the statement capsulizes the
problem with the ALJ’s credibilty determination regarding the
Plaintiff’s activities of daily living.
Furthermore, the ALJ indicated that her decision on the
claimant’s credibility was “first and foremost” based on the fact
that she was receiving a disability early retirement benefits from
her previous job and therefore the claimant had little incentive to
continue to return to other work.

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(R. 19.)

While there is some

law that concludes that where a claimant’s motivation for seeking
disability benefits is evidenced by inconsistencies in the record
related to that motivation, see Gaddis v. Chater, 76 F.3d 893, 89596 (8th Cir. 1966), here nothing in this record shows such
inconsistency.

In fact, there is absolutely nothing in the record

that indicates the claimant’s testimony regarding her disability is
any different now than it was before she received the retirement
disability payments.
The ALJ in this case determined, as aforesaid, that the
claimant was capable of doing light work with some restrictions and
that she was not disabled under the Social Security Act because
jobs existed in the national economy that she could perform.
22.)

(R.

However, the vocational expert upon whom the ALJ relied

heavily testified that no jobs would be available if the claimant
needed to take five or six breaks per day of varying times, maybe
five minutes or more.

(R. 78.)

Here the claimant testified

extensively that she had to take breaks five to six times a day on
a good day and far more on other days even when doing the lightest
type of work around her house.

Thus, the problems identified with

the ALJ’s credibility determination directly affect her decision
that the Plaintiff was not disabled and undermine any reliance the
ALJ would have placed upon the vocational expert’s opinion that
jobs existed for the Plaintiff.

This conclusion requires the Court

to find that the ALJ’s determination was not based on substantial

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evidence.
To the contrary, the Court finds that substantial evidence in
the record as a whole supports a finding that the Plaintiff is
disabled and entitled to benefits.

This is a case where the record

is fully developed, the Plaintiff applied for benefits over four
years ago, and we conclude it would be unreasonable to allow the
ALJ another opportunity to more fully evaluate the evidence.

See

Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).
Therefore, the case will be remanded to the Commissioner with
instructions that benefits be awarded after a determination of the
date of entitlement and the calculation of monies owed.
IV. Conclusion
For the reasons discussed above, we conclude benefits are
properly awarded to the Plaintiff.

An appropriate Order is entered

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: December 13, 2013

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