EDWARDS v. ASTRUE
Filing
16
MEMORANDUM AND OPINION re 10 MOTION for Summary Judgment filed by ANGELLA EDWARDS, 12 MOTION for Summary Judgment filed by MICHAEL J. ASTRUE. Signed by Judge Maureen P. Kelly on 9/14/2011. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON L. SHALLENBERGER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 10-224
Magistrate Judge Maureen P. Kelly
MEMORANDUM OPINION
I.
INTRODUCTION
Plaintiff Jason L. Shallenberger (“Shallenberger”) brings this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying his application for disability insurance benefits under Title
II of the Social Security Act (“Act”) [42 U.S.C. §§ 401-433]. For the reasons that follow, the
decision of the Commissioner will be vacated, and the case will be remanded to him for further
administrative proceedings.
II.
PROCEDURAL HISTORY
Shallenberger protectively applied for disability insurance benefits on December 28,
2007, alleging disability as of August 14, 2007, due to injuries resulting from a motor vehicle
accident. (R. at 78, 104). The application was administratively denied on March 24, 2008. (R.
at 43). Shallenberger responded on April 2, 2008, by filing a timely request for an administrative
hearing. (R. at 48-49). On July 2, 2009, a hearing was held before Administrative Law Judge O.
Price Dodson (the “ALJ”). (R. at 20). The ALJ presided over the hearing from Norfolk,
1
Virginia, by means of an electronic video-conferencing apparatus. (R. at 11). Shallenberger,
who was represented by counsel, appeared in Erie, Pennsylvania, and testified at the hearing. (R.
at 23-36). Paula C. Day (“Day”), an impartial vocational expert, also testified at the hearing. (R.
at 37-39). In a decision dated August 4, 2009, the ALJ determined that Shallenberger was not
“disabled” within the meaning of the Act. (R. at 8-19). The Appeals Council denied
Shallenberger‟s request for review on July 1, 2010, thereby making the ALJ‟s decision the final
decision of the Commissioner in this case. (R. at 1). Shallenberger commenced this action on
September 7, 2010, seeking judicial review of the Commissioner‟s decision. (ECF No. 1).
Shallenberger and the Commissioner filed motions for summary judgment on February 4, 2011,
and March 16, 2011, respectively. (ECF Nos. 9 & 12). In accordance with 28 U.S.C. §
636(c)(1), the parties have consented to have this matter adjudicated by a United States
magistrate judge. (ECF Nos. 6 & 7). The cross-motions for summary judgment filed by the
parties are the subject of this Memorandum Opinion.
III.
STANDARD OF REVIEW
This Court‟s review is plenary with respect to all questions of law. Schaudeck v.
Commissioner of Social Security Administration, 181 F.3d 429, 431 (3d Cir. 1999). With respect
to factual issues, judicial review is limited to determining whether the Commissioner‟s decision
is “supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner‟s decision
or re-weigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 11901191 (3d Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable
2
amount of evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541,
101 L.Ed.2d 490 (1988)(internal quotation marks omitted). As long as the Commissioner‟s
decision is supported by substantial evidence, it cannot be set aside even if this Court “would
have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). “Overall, the substantial evidence standard is a deferential standard of review.” Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him [or her] from engaging in any
„substantial gainful activity‟ for a statutory twelve-month period.” Stunkard v. Secretary of
Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777
(3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be
unable to engage in substantial gainful activity “only if his [or her] physical or mental
impairment or impairments are of such severity that he [or she] is not only unable to do his [or
her] previous work but cannot, considering his [or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To support his or her ultimate findings, an administrative law judge must do more than
simply state factual conclusions. He or she must make specific findings of fact. Stewart v.
Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The administrative
law judge must consider all medical evidence contained in the record and provide adequate
explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d
955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
3
The Social Security Administration (“SSA”), acting pursuant to its legislatively-delegated
rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court recently summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
unless the claimant shows that he is not working at a “substantial gainful
activity.” [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
non-disability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits [the claimant‟s] physical or mental ability to do basic work activities.” §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant‟s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant‟s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)(footnotes
omitted).
In an action in which review of an administrative determination is sought, the agency‟s
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. In Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67
S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing
with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by substituting what it considers to
4
be a more adequate or proper basis. To do so would propel the court into the
domain which Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has
recognized the applicability of this rule in the Social Security disability context. Fargnoli v.
Massanari, 247 F.3d 34, 44, n. 7 (3d Cir. 2001). Thus, the Court‟s review is limited to the four
corners of the ALJ‟s decision. Cefalu v. Barnhart, 387 F.Supp.2d 486, 491 (W.D.Pa. 2005).
IV.
THE DECISION OF THE ALJ
In his decision, the ALJ determined that Shallenberger had not engaged in substantial
gainful activity subsequent to his alleged onset date. (R. at 13). Shallenberger was found to be
suffering from an L5/S1 disc herniation, multiple cervical disc herniations, post concussive
syndrome, a torn left medial collateral ligament, and headaches. (R. at 13). These impairments
were deemed to be “severe” within the meaning of 20 C.F.R. § 404.1520(a)(4)(ii). (R. at 13).
The ALJ concluded that Shallenberger‟s impairments did not meet or medically equal an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listing of Impairments” or,
with respect to a single impairment, a “Listed Impairment” or “Listing”). (R. at 13-14).
In accordance with 20 C.F.R. § 404.1545, the ALJ determined that Shallenberger had the
residual functional capacity to engage in a range of “light”1 work involving only simple,
repetitive tasks. (R. at 14). Shallenberger had “past relevant work”2 experience as an auditor for
the Commonwealth of Pennsylvania. (R. at 17, 37). Day classified Shallenberger‟s prior
1
“Light work involves 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 may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the
ability to do substantially all of these activities.” 20 C.F.R. § 404.1567(b).
2
“Past relevant work” is defined as “substantial gainful activity” performed by a claimant within the last fifteen
years that lasted long enough for him or her to learn how to do it. 20 C.F.R. § 404.1560(b)(1). The Commissioner
has promulgated comprehensive regulations governing the determination as to whether a claimant‟s work activity
constitutes “substantial gainful activity.” 20 C.F.R. §§ 404.1571-404.1576.
5
position as a “skilled”3 position at the “medium”4 level of exertion. (R. at 37). Since that
position required the performance of tasks that were deemed to be beyond Shallenberger‟s
residual functional capacity, it was determined that he could not return to his past relevant work.
(R. at 17).
Shallenberger was born on December 29, 1971, making him thirty-five years old on his
alleged onset date and thirty-seven years old on the date of the ALJ‟s decision. (R. at 17, 23).
He was classified as a “younger person” under the Commissioner‟s regulations. 20 C.F.R. §
404.1563(c). He had more than a high school education and an ability to communicate in
English.5 (R. at 17, 24); 20 C.F.R. § 404.1564(b)(4)-(5). Given the applicable residual
functional capacity and vocational assessments, the ALJ concluded that Shallenberger could
work as an office helper, an order caller, or a warehouse checker. (R. at 18). Day‟s testimony
established that these jobs existed in the national economy for purposes of 42 U.S.C. §
423(d)(2)(A).6 (R. at 38).
V.
DISCUSSION
Shallenberger was involved in an automobile accident on August 14, 2007. (R. at 257).
Another vehicle apparently crashed into the driver‟s side of Shallenberger‟s vehicle while he was
driving, causing him to sustain significant injuries. (R. at 257). In the aftermath of the incident,
3
“Skilled work requires qualifications in which a person uses judgment to determine the machine and manual
operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced.
Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of
materials, making precise measurements, reading blueprints or other specifications, or making necessary
computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing
with people, facts, or figures or abstract ideas at a high level of complexity.” 20 C.F.R. § 404.1568(c).
4
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
5
Shallenberger testified that he had received a master‟s degree in business administration. (R. at 24).
6
At the fifth step of the sequential evaluation process, “the Commissioner bears the burden of proving that,
considering the claimant‟s residual functional capacity, age, education, and past work experience, [he or] she can
perform work that exists in significant numbers in the regional or national economy.” Boone v. Barnhart, 353 F.3d
203, 205 (3d Cir. 2003). This burden is commonly satisfied by means of vocational expert testimony. Rutherford v.
Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
6
Shallenberger was hospitalized at the University of Pittsburgh Medical Center‟s Northwest
facility (“UPMC Northwest”), where he remained for three days. (R. at 257). A magnetic
resonance imaging (“MRI”) scan of Shallenberger‟s lumbar spine revealed that he had suffered a
herniation of his L5/S1 disc. (R. at 168). He was discharged by UPMC Northwest on August
17, 2007, but he never returned to work. (R. at 119, 257).
Shallenberger challenges the ALJ‟s determinations at the third and fifth steps of the
sequential evaluation process. (ECF No. 10 at 3-12). He argues that the ALJ erred in failing to
analyze his impairments under Listing 1.05C. (Id. at 5-7). He also contends that the ALJ‟s
residual functional capacity finding and corresponding hypothetical question to Day were
deficient, thereby rendering Day‟s testimony unreliable. (Id. at 3-5, 7-12). In addition,
Shallenberger asserts that the ALJ failed to properly account for his subjective complaints. (Id.
at 7-9).
The Listing of Impairments describes impairments which render a claimant per se
disabled without regard to his or her age, education, or past work experience. Bowen v. Yuckert,
482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Knepp v. Apfel, 204 F.3d 78, 85 (3d
Cir. 2000). In order to qualify as per se disabled, a claimant must demonstrate that his or her
impairment (or combination of impairments) either “matches” a Listing or is “equivalent” to a
Listing. Sullivan v. Zebley, 493 U.S. 521, 530-531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). An
impairment “matches” a Listing only if it satisfies all of the relevant medical criteria. Id. at 530.
An impairment is “equivalent” to a Listed Impairment only if it is supported by medical findings
equal in severity to all of the criteria applicable to the most similar Listing. Id. at 531. The
claimant bears the burden of presenting evidence to support his or her allegation of per se
disability. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
7
An applicant must be an amputee in order to be per se disabled under Listing 1.05. 20
C.F.R. Part 404, Subpart P, Appendix 1, Listing 1.05. As the Commissioner points out,
Shallenberger‟s argument concerning Listing 1.05 appears to be based on an outdated or obsolete
version of the Listings. (ECF No. 13 at 22-23). Nevertheless, the ALJ‟s finding at the third step
of the sequential evaluation process consisted only of a conclusion that Shallenberger was not
per se disabled. (R. at 13-14). The ALJ never identified the specific Listings under
consideration or explained why the applicable requirements were not met. (R. at 13-14). In
Burnett v. Commissioner of Social Security Administration, 220 F.3d 112, 119-120 (3d Cir.
2000), the United States Court of Appeals for the Third Circuit held that such a “hopelessly
inadequate” analysis warranted a remand for further proceedings, since the challenged factual
finding was “beyond meaningful judicial review.” The Court of Appeals explained in a footnote
that it is the responsibility of the Commissioner to identify the Listings relevant to a claimant‟s
case, and to explain why the claimant‟s impairments do not meet or medically equal those
Listings. Burnett, 220 F.3d at 120, n. 2. The rule established in Burnett is consistent with the
express language of the Act, which requires the Commissioner to state his reasons for denying a
claimant‟s application for benefits. 42 U.S.C. § 405(b). The ALJ‟s analysis in this case was
clearly inadequate to facilitate meaningful judicial review. (R. at 13-14). Because a remand is
required for other reasons, the Court has no occasion to consider whether Shallenberger‟s failure
to identify a current Listing would otherwise obviate the need for further proceedings based on
the ALJ‟s failure to explain the rationale for his step-three determination. Poulos v.
Commissioner of Social Security, 474 F.3d 88, 93 (3d Cir. 2007). It suffices to say that
Shallenberger must be afforded another opportunity to present evidence relating to the issue of
8
per se disability during the course of the ensuing administrative proceedings. Thomas v.
Commissioner of Social Security, 625 F.3d 798, 800-801 (3d Cir. 2010).
Shallenberger‟s attack on the ALJ‟s residual functional capacity finding (and
corresponding hypothetical question to Day) concerns the weight accorded to both his testimony
at the hearing and the opinions of his treating and examining physicians. (ECF No. 10 at 3-5, 712). Dr. Vincent J. Paczkoskie, who was retained solely to address Shallenberger‟s knee
impairment, opined on October 22, 2007, that Shallenberger could perform the duties of a light
job on a full-time basis. (R. at 182). Dr. Paczkoskie rendered his opinion after reviewing the
results of an MRI scan showing that Shallenberger had suffered a “torn medial collateral
ligament” in his left knee. (R. at 182).
Dr. Monty Van Beber, Shallenberger‟s primary care physician, reported on December 12,
2007, that Shallenberger had a “limited ability” to work. (R. at 248). Dr. Van Beber indicated
that, between December 31, 2007, and February 28, 2008, Shallenberger could be expected to
perform a range of light work involving only occasional climbing, kneeling, crawling, squatting,
crouching, bending, twisting, rotating and driving.7 (R. at 477). Shallenberger apparently told
Dr. Van Beber that his back problems were preventing him from driving for more than two hours
at a time. (R. at 248).
Dr. John F. Delaney performed a consultative physical examination of Shallenberger on
February 11, 2008. (R. at 363-365). The examination was apparently conducted to assess
Shallenberger‟s continuing eligibility for workers‟ compensation benefits. (R. at 365). Dr.
Delaney found Shallenberger to be “totally disabled.” (R. at 368). According to Dr. Delaney,
Shallenberger was incapable of working “because of the intractability of his headaches.” (R. at
7
Dr. Van Beber‟s assessment form also contained notations indicating that Shallenberger‟s standing, walking,
sitting, lifting and carrying abilities were limited. (R. at 477). Those limitations, however, are generally
incorporated within the definition of light work. 20 C.F.R. § 404.1567(b).
9
365). Dr. Delaney predicted that, with proper treatment, Shallenberger‟s headaches would
improve within three to six months. (R. at 365).
Dr. Douglas Schiller, a nonexamining psychiatric consultant, opined on February 28,
2008, that Shallenberger had no medically determinable mental impairment. (R. at 369). He
specifically noted that Shallenberger had not sought mental health treatment subsequent to the
accident. (R. at 381).
On March 3, 2008, Dr. Dilip S. Kar, a nonexamining medical consultant, expressed the
view that Shallenberger could perform an unlimited range of light work. (R. at 382-388).
Shallenberger reported on April 16, 2008, that he could only walk for thirty minutes or sit
for one hour before experiencing pain. (R. at 433). Dr. William Donaldson, a treating physician,
recommended that Shallenberger “start doing more activity and try to get back into a more
mainstream life.” (R. at 433). Shallenberger was apparently reluctant to resume his regular
activities because he did not want to aggravate his herniated disc. (R. at 433). Dr. Donaldson
told Shallenberger that the disc herniation was not “a significant problem that would require
surgery.” (R. at 433).
Dr. Betty Liu began treating Shallenberger on June 11, 2008. (R. at 532-533).
Shallenberger complained of “chronic headaches” and frequent pain in his upper and lower back.
(R. at 533). Dr. Liu indicated that Shallenberger could potentially return to work, provided that
he was not required to engage in “prolonged driving.” (R. at 534). On July 30, 2008, however,
Dr. Liu reported that Shallenberger could return to work only if he avoided “prolonged driving”
and “stay[ed] at the sedentary limitations.”8 (R. at 530).
8
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
10
Dr. Tammy Kordes performed a neuropsychological evaluation of Shallenberger on
August 22, 2008. (R. at 448). During the course of the evaluation, Shallenberger complained of
frequent headaches and expressed concerns about “his ability to be successful on the job.” (R. at
448-449). Dr. Kordes determined that Shallenberger‟s “cognitive deficits could impact his
ability to be successful at work.” (R. at 450). She suggested that when Shallenberger was
“released to return to work, he may need an abbreviated work day with some increased
supervision to monitor any errors, given his job as an auditor.” (R. at 450).
At the hearing, Shallenberger testified that he frequently bathed in a hot tub in order to
relieve the pain in his back. (R. at 26). He stated that the accident had caused him to stop
golfing, and that he sometimes needed his wife‟s assistance to put on his shoes. (R. at 27).
When questioned about his back impairment, Shallenberger described “constant pain” that was
“varie[d] in level.” (R. at 29). He testified that his left knee had often felt like it was “going to
give out,” causing him to place more weight on his right leg. (R. at 30). Shallenberger also
complained of concentration difficulties, dizziness and headaches. (R. at 28). He attributed
some of the dizziness to his medications. (R. at 34). Shallenberger further explained that his
medical condition had caused him to become depressed. (R. at 34-35).
In determining Shallenberger‟s residual functional capacity, the ALJ accorded “little
weight” to Dr. Schiller‟s assessment, “significant weight” to Dr. Kar‟s opinion, and “some
weight” to the views expressed by Dr. Van Beber and Dr. Kordes. (R. at 17). The ALJ
accommodated Shallenberger‟s physical limitations by limiting him to light work and
accommodated his mental limitations by limiting him to jobs involving only the performance of
simple, repetitive tasks. (R. at 14, 17). Day testified that an individual with those limitations
could work as an office helper, an order caller, or a warehouse checker. (R. at 37-38). In
11
response to a follow-up question, Day stated that an individual who frequently needed to take
unscheduled breaks would be precluded from all forms of competitive work existing in
significant numbers in the national economy. (R. at 38). When questioned by Shallenberger‟s
counsel, Day clarified that an individual who needed to sit or stand at his or her option could
maintain the positions identified in her testimony. (R. at 39). Nonetheless, Day testified that an
individual who could not read instructions, or who needed to miss work more than two times per
month, would not be able to perform the duties required of individuals holding those jobs. (R. at
39).
Where the record contains evidence of a medically determinable impairment that could
reasonably be expected to produce the symptoms reflected in a claimant‟s testimony, the
Commissioner must give serious consideration to that testimony. Mason v. Shalala, 994 F.2d
1058, 1067 (3d Cir. 1993). In this case, the record contains evidence establishing that
Shallenberger suffers from a herniated disc in his back and a torn medial collateral ligament in
his left knee. (R. at 168, 182). These impairments could reasonably be expected to produce the
limitations described by Shallenberger at the hearing. (R. at 27-30). They could likewise be
expected to result in several of the specific postural limitations identified by Dr. Van Beber on
December 12, 2007. (R. at 477).
From a physical standpoint, the ALJ‟s residual functional capacity assessment reflected
an individual who could perform an unlimited range of light work activities. (R. at 14, 17).
Aside from the requirement that the work involve only simple, repetitive tasks, the ALJ‟s
residual functional capacity determination accounted for no limitations that were not specifically
incorporated within the regulatory definition of the term “light work.” (R. at 14, 17). In other
words, the ALJ essentially concluded that Shallenberger could engage in an unlimited amount of
12
climbing, balancing, crawling, squatting, crouching, stooping or bending. This conclusion was
clearly contrary to both the documentary evidence contained in the record and the testimony
provided by Shallenberger at the hearing. (R. at 27-30, 477).
In his consultative report, Dr. Kar opined that Shallenberger was physically capable of
performing the full range of light work. (R. at 382-388). The ALJ accorded “significant weight”
to Dr. Kar‟s assessment in determining Shallenberger‟s residual functional capacity. (R. at 17).
The opinion of a nonexamining medical consultant, however, does not ordinarily constitute
“substantial evidence” when it is contradicted by the opinion of a treating physician.
Brownawell v. Commissioner of Social Security, 554 F.3d 352, 357 (3d Cir. 2008). Dr. Van
Beber found Shallenberger to be limited to only occasional postural maneuvers. (R. at 477).
The limitations identified by Dr. Van Beber were consistent with some of Shallenberger‟s
subjective complaints. (R. at 27-30). Simply put, the record fails to support the ALJ‟s
assessment of Shallenberger‟s physical capabilities and limitations.
The Court acknowledges that Day, when questioned by Shallenberger‟s counsel, testified
that an individual who needed to sit or stand at will could work as an office helper, an order
caller, or a warehouse checker. (R. at 39). Thus, Shallenberger‟s alleged need for a sit/stand
option would not have altered the disposition of his claim even if the ALJ had accounted for it.
That accommodation, however, does not necessarily incorporate all of Shallenberger‟s postural
limitations. For instance, Shallenberger testified that he sometimes needed his wife‟s assistance
in order to put on his shoes. (R. at 27). The postural maneuvers necessary to tie or fasten one‟s
own shoes cannot be easily analogized to the acts of sitting and standing.
An employee performing the duties of a sedentary job is rarely expected to engage in
postural activities. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
13
Nevertheless, the ALJ found Shallenberger to be capable of performing a wide range of light
work. (R. at 14-17). The testimonial record is silent as to whether the jobs identified by Day
would require the performance of tasks that are beyond Shallenberger‟s physical capacity. (R. at
37-39). Day was never asked about postural limitations. (R. at 37-39). A residual functional
capacity determination (and corresponding hypothetical question) must particularly describe all
of a claimant‟s specific limitations. Ramirez v. Barnhart, 372 F.3d 546, 552-555 (3d Cir. 2004).
By concluding that Shallenberger was physically capable of performing a virtually unlimited
range of light work, the ALJ painted with far too broad of a brush. There is substantial evidence
of significant disability.
The Court does not mean to suggest that the ALJ was required to account for every
limitation alleged by Shallenberger. The ALJ was free to reject limitations that were not
credibly established, and to disregard vocational expert testimony pertaining to those limitations.
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Nonetheless, it does not follow that
the ALJ acted within his discretion by rejecting every physical limitation apart from those
incorporated within the definition of light work. At an absolute minimum, the ALJ was required
to explain why he credited Dr. Kar‟s consultative opinion rather than Dr. Van Beber‟s
assessment. Reefer v. Barnhart, 326 F.3d 376, 381-382 (3d Cir. 2003).
Relying on the Supreme Court‟s decision in Shinseki v. Sanders, 556 U.S. 396, 129 S.Ct.
1696, 173 L.Ed.2d 532 (2009), the Commissioner invites the Court to affirm his decision on the
ground that any errors committed by the ALJ were harmless. (ECF No. 13 at 21). In Sanders,
the Supreme Court explained that a party challenging an agency‟s ultimate determination on the
basis of an underlying error ordinarily bears the burden of establishing that he or she has been
harmed by that error. Sanders, 129 S.Ct. at 1705-1706. The Commissioner evidently believes
14
that none of the ALJ‟s errors were material to his final decision denying Shallenberger‟s
application for benefits. (ECF No. 13 at 21-22).
The statute at issue in Sanders was a provision of the Veterans Claims Assistance Act of
2000 (“VCAA”) requiring the Secretary of Veterans Affairs (“Secretary”) to provide veterans
seeking disability benefits with appropriate notice when additional evidence was needed to
substantiate their claims. Pub. L. No. 106-475, § 3; 114 Stat. 2096, 2096-2097 (2000); 38 U.S.C.
§ 5103(a). The Supreme Court held that where the Secretary fails to comply with the statutory
notice provision, a reviewing court should not automatically presume that the failure has
prejudiced the claimant. Sanders, 129 S.Ct. at 1704-1706. It was noted that the party seeking to
have a judgment set aside because of an erroneous ruling ordinarily bears the burden of showing
that he or she has been prejudiced by the error. Id. at 1705-1706. Importantly, the holding in
Sanders was controlled by a specific statutory provision requiring the Court of Appeals for
Veterans Claims to “take due account of the rule of prejudicial error.” 38 U.S.C. § 7261(b)(2).
The situation in this case differs meaningfully from the situation in Sanders. “At the fifth
step of the sequential evaluation process, the Commissioner bears the burden of proving the
existence of jobs in the national economy that are consistent with the claimant‟s residual
functional capacity and vocational background.” Crock v. Astrue, Civil Action No. 08-680, 2010
WL 2640324, at *7, 2010 U.S. Dist. LEXIS 65719, at *21 (W.D.Pa. July 1, 2010)(emphasis in
original). The error at issue in this case directly relates to the Commissioner‟s failure to meet his
evidentiary burden. Id. It is not comparable to the error discussed in Sanders, which concerned
only the Secretary‟s alleged failure to comply with the statutory notice provision. Sanders, 129
S.Ct. at 1704-1706. Sanders did not displace the longstanding rule prohibiting a reviewing court
15
from affirming the Commissioner‟s decision denying an application for benefits on a ground
other than that actually relied upon by the Commissioner. Fargnoli, 247 F.3d at 44, n. 7.
For the foregoing reasons, the Commissioner‟s decision is clearly not “supported by
substantial evidence.” 42 U.S.C. § 405(g).
The only remaining question is whether the proper remedy is an immediate award of
benefits, or whether a remand for further administrative proceedings is warranted. A judiciallyordered award of benefits is proper only where the evidentiary record has been fully developed,
and where the evidence contained therein “clearly points in favor of a finding that the claimant is
statutorily disabled.” Ambrosini v. Astrue, 727 F.Supp.2d 414, 432 (W.D.Pa. 2010).
Shallenberger cannot satisfy this standard. Most of his treating physicians found him to be
capable of working at some level. (R. at 182, 248, 277, 433, 530, 534). Only Dr. Delaney, a
one-time examiner, found Shallenberger to be “totally disabled.” (R. at 368). Since Dr. Delaney
predicted that Shallenberger‟s condition would improve within three to six months, the
“disability” referenced in his examination report would not have lasted long enough to satisfy the
Act‟s twelve-month durational requirement. (R. at 365); Barnhart v. Walton, 535 U.S. 212, 214222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). Although Dr. Kordes believed Shallenberger to
be incapable of working more than a full year after the accident, her opinion appears to have
been rendered only with specific reference to Shallenberger‟s past relevant work as an auditor.
(R. at 450). Under these circumstances, the proper remedy is a remand for further consideration
of Shallenberger‟s claim rather than an award of benefits.
VI.
CONCLUSION
The ALJ‟s conclusion at the third step of the sequential evaluation process is unsupported
by an explanation and, hence, “beyond meaningful judicial review.” (R. at 13-14); Burnett, 220
16
F.3d at 119-120. Despite the overwhelming documentary and testimonial evidence suggesting
that Shallenberger suffers from several back, knee and head impairments, the ALJ determined
that Shallenberger was physically capable of performing the full range of light work. (R. at 1417). Consequently, the decision of the Commissioner is not “supported by substantial evidence.”
42 U.S.C. § 405(g). The Commissioner must give further consideration to Shallenberger‟s
application for benefits. During the course of the ensuing administrative proceedings,
Shallenberger must be afforded “an opportunity to be heard.” Thomas, 625 F.3d at 801.
Accordingly, the Court will deny the Commissioner‟s motion for summary judgment
(ECF No. 12), deny Shallenberger‟s motion for summary judgment (ECF No. 9) to the extent
that it requests an immediate award of benefits, and grant Shallenberger‟s motion for summary
judgment to the extent that it seeks a vacation of the Commissioner‟s decision, and a remand for
further proceedings. The “final decision” of the Commissioner will be vacated, and the case will
be remanded to him for administrative proceedings consistent with this opinion. An appropriate
order follows.
BY THE COURT:
/s/ Maureen P. Kelly
United States Magistrate Judge
cc:
All counsel of record
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?