LUNDBERG v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
ORDER granting 9 Plaintiff's Motion for Summary Judgment; denying 11 Defendant's Motion for Summary Judgment; and remanding the matter to the Commissioner for further evaluation. Signed by Judge Alan N. Bloch on 2/21/2013. (kmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELIZABETH LUNDBERG,
Plaintiff,
vs.
Civil Action No. 11-177-E
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
o R D E R
AND NOW, this 21 st day of February, 2013, upon consideration of
Defendant's Motion for Summary Judgment (document No. 11) filed in
the above-captioned matter on April 3, 2012,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for
Summary Judgment (document No.9) filed in the above-captioned matter
on February 28, 2012,
IT IS HEREBY ORDERED that said Motion is GRANTED.
Accordingly, this matter is hereby remanded to the Commissioner of
Social Security ("Commissioner") for further evaluation under
sentence four of 42 U.S.C.
§
405(g)
1
in light of this Order.
I .
Background
On December 28, 2006, Plaintiff Elizabeth Lundberg filed her
claim for Disability Insurance Benefits ("DIB") under Title II of
the Social Security Act, 42 U.S.C.
§§
401-434.
(R. IS, 25, 90, 110).
Specifically, Plaintiff claimed that she became disabled on June 13,
2006, due to nerve damage to her left thumb and left foot.
(R.
90,
101-02) .
After being denied initially on April 23, 2007, Plaintiff
sought, and obtained, a hearing before an Administrative Law Judge
("ALJ") on March 4, 2009.
(R. 21-53, 56-60).
In a decision dated
May 29, 2009, the ALJ denied Plaintiff's request for benefits.
15-20).
(R.
The Appeals Council declined to review the ALJ's decision
on June 30, 2011.
(R. 2-5).
On August 18, 2011, plaintiff filed
a timely appeal with this Court, and the parties have filed
cross-motions for summary judgment.
II.
Standard of Review
Judicial review of a social security case is based upon the
pleadings and the transcript of the record.
See 42 U. S. C.
§
405 (g) .
The scope of review is limited to determining whether the
Commissioner applied the correct legal standards and whether the
record, as a whole, contains substantial evidence to support the
Commissioner's findings of fact.
See Matthews v. Apfel, 239 F.3d
589, 592 (3d Cir. 2001) (\\ (t] he findings of the Commissioner of Social
2
Security as to any fact, if supported by substantial evidence, shall
be conclusive" (quoting 42 U.S.C.
405(g))); Schaudeck v.
§
Commissioner of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)
(noting that the court has plenary review of all legal issues, and
reviews the administrative law judge s findings of fact to determine
I
whether they are supported by substantial evidence).
"Substantial evidence" is defined as "more than a mere
scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate" to support a conclusion.
186 F.3d 422, 427 (3d Cir. 1999).
Plummer v. Apfel,
However, a "single piece of
evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence."
Cir. 2000)
1983)).
(quoting Kent
Morales v.
v.~~chweikeE'
Apf~!,
225 F.3d 310, 317 (3d
710 F.2d 110, 114 (3d Cir.
"Nor is evidence substantial if it is overwhelmed by other
evidence - particularly certain types of evidence (e. g., that offered
by treating physicians) - or if it really constitutes not evidence
but mere conclusion."
Id.
A disability is established when the claimant can demonstrate
some medically determinable basis for an impairment that prevents
him or her from engaging in any substantial gainful activity for a
statutory twelve-month period.
34, 38-39 (3d Cir. 2001).
See FargI101i v.
Massa~nari,
247 F. 3d
"A claimant is considered unable to engage
3
in any substantial gainful activity '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
Id. at 39 (quoting 42 U.S.C.
§
,
II
423(d) (2) (A)).
The Social Security Administration ("SSA") has promulgated
regulations incorporating a five-step sequential evaluation process
for determining whether a claimant is under a disability as defined
by the Act.
See 20 C.F.R.
§
404.1520.
In Step One, the Commissioner
must determine whether the claimant is currently engaging in
substantial gainful activity.
See 20 C.F.R.
the disability claim will be denied.
137, 140 (1987).
§
404.1520(b).
See Bowen v. Yuckert, 482 U.S.
If not, the second step of the process is to determine
whether the claimant is suffering from a severe impairment.
C.F.R.
§
If so,
404.1520(c).
See 20
"An impairment or combination of impairments
is not severe if it does not significantly limit [the claimant's)
physical or mental ability to do basic work activities.
§
404.1521(a).
II
20 C.F.R.
If the claimant fails to show that his or her
impairments are "severe,1I he or she is ineligible for disability
benefits.
If the claimant does have a severe impairment, however,
the Commissioner must proceed to Step Three and determine whether
the claimant's impairment meets or equals the criteria for a listed
4
impairment.
Se~
20 C.F.R.
§
404.1520(d).
If a claimant meets a
listing, a finding of disability is automatically directed.
If the
claimant does not meet a listing, the analysis proceeds to Steps Four
and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity
her past relevant work.
See 20 C.F.R.
§
(\\RFC")
to perform his or
404.1520(e).
The claimant
bears the burden of demonstrating an inability to return to his or
her past relevant work.
Cir. 1994).
See Adorno v.
Shalal~,
40 F.3d 43, 46 (3d
If the claimant is unable to resume his or her former
occupation, the evaluation moves to the fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable of
performing other available work in the national economy in order to
deny a claim of disability.
S~~
20 C.F.R.
§
404.1520(g).
In making
this determination, the ALJ should consider the claimant's RFC, age,
education, and past work experience.
See id.
The ALJ must further
analyze the cumulative effect of all the claimant's impairments in
determining whether he or she is capable of performing work and is
not disabled.
See 20 C.F.R.
§
404.1523.
III. The ALJ's Decision
In the present case, the ALJ found that Plaintiff met the insured
requirements of the Social Security Act through June 30, 2008.
5
(R.
17).
Accordingly, to be eligible for DIB benefits, Plaintiff had to
establish that she was disabled on or before that date.
§§
423(a) (1) (A),
(c) (1) (B) i 20 C.F.R.
§§
404.101,
See 42 U. S. C.
.110,
.131.
The ALJ then proceeded to apply the sequential evaluation process
when reviewing Plaintiff's claim for benefits.
In particular, the
ALJ found that Plaintiff had not been engaged in substantial gainful
activity since the alleged onset of disability.
(R. 17).
The ALJ
also found that Plaintiff met the second requirement of the process
insofar as she had several severe impairments, specifically, nerve
damage to the left upper extremity, degenerative disc disease, and
arthritis.
(Id.).
The ALJ concluded that Plaintiff's impairments
did not meet any of the listings that would satisfy Step Three.
(R.
18) .
The ALJ found that Plaintiff retained the RFC to engage in light
work, except that she is not able to push and pull with her upper
extremities.
(R. 18-19).
He further found that, pursuant to Social
Security Ruling ("S.S.R.") 85-15,1985 WL 56857 (S.S.A.) (1985), the
push/pull limitation only minimally impacted the occupational base.
Based on this RFC, the ALJ found that Plaintiff was capable of
returning to her past relevant work as a golf club manager, restaurant
manager.
(R. 19).
not disabled.
Accordingly, the ALJ found that Plaintiff was
(R. 19-20).
6
IV.
Legal Analysis
Plaintiff raises several arguments as to why the ALJ erred in
finding that she was not disabled.
While the Court does not reach
all of the arguments set forth by Plaintiff, it does agree that remand
is warranted in this case.
Specifically, the Court finds that the
ALJ failed to provide an adequate basis for finding that Plaintiff' s
past relevant work did not exceed the requirements for light work
activity or for finding that Plaintiff's inability to push and pull
with her upper extremities only minimally impacted the occupational
base.
Therefore, the record is insufficient to support the ALJ's
determination that Plaintiff could return to her past relevant work
as a golf club manager
I
restaurant manager.
Accordingly, the Court
will remand the case for further consideration.
As noted above, the ALJ concluded that Plaintiff' s past relevant
work did not exceed the requirement for light work activity, either
as those positions were actually or generally performed.
He based
this finding on his determination that \\ [t] hese jobs do not require
heavy lifting or pushing and pulling with the upper extremities.
(R. 19).
1I
However, he did not explain what evidence supports this
determination.
As Plaintiff points out, there is evidence in the
record, namely her own description of her job duties, that would
suggest that her past relevant work, both as a golf club/restaurant
manager and as a restaurant general manager, required her to lift
7
25 pounds frequently and up to 50 pounds occasionally.
128, 129).
This would make this work medium work.
404.1567(c).
(R. 103, 104,
See 20 C.F.R.
§
The ALJ did not discuss this evidence at all, nor did
he consult a vocational expert or cite any evidence for his finding
that Plaintiff's prior jobs required no more than light work.
Defendant is correct that an ALJ's finding that a claimant can
return to his or her past relevant work can be based on how that work
is actually performed or on how it is generally performed in the
national economy.
See 20 C.F.R.
WL 31387 (S.S.A.) (1982).
§
404.1560(b) (2) i S.S.R. 82-61,1982
Defendant does not explain how the ALJ's
analysis would establish that Plaintiff could return to her past
relevant work as it was actually performed.
Indeed, although the
ALJ expressly made a finding that Plaintiff could perform her past
work as a golf club manager, restaurant manager as the job was
actually performed, he did not provide any basis for such a finding.
While the ALJ was not required simply to accept Plaintiff's own
description of these prior jobs, \\ [t] he claimant is the primary source
for vocational documentation, and statements by the claimant
regarding past work are generally sufficient for determining the skill
level, exertional demands and nonexertional demands of such work."
S.S.R. 82-62, 1982 WL 31386 (S.S.A.), at *3 (1982).
Here, the ALJ
made a determination of light work without even addressing
Plaintiff's statements suggesting a greater level of exertional
8
demand.
As noted, Defendant does not attempt to defend the ALJ' s finding
in regard to how Plaintiff's past relevant work was actually
performed.
Rather, it argues that his finding as to how this work
is performed generally in the national economy is supported by the
record by suggesting that the ALJ may have relied on the Dictionary
of Occupational Titles ("DOT") in determining that the position of
"Manager, Golf Club" requires no more than sedentary work, citing
DICOT 197.167-114.
Without question, an ALJ can rely on the DOT in
determining whether a claimant retains the RFC to perform the
functional demands and job duties of a prior job as ordinarily required
by employers throughout the national economy.
See S.S.R. 82-61 at
*2; S.S.R. 82-62 at *3; Garibay v. Commissioner of Soc. Sec., 336
Fed. Appx. 152, 160 (3d Cir. 2009).
However, the problem is that the
ALJ did not indicate that he was relying on the DOT, nor did he cite
to it at all.
It is well-established that the Court is not permitted to wander
outside of the boundaries created by the ALJ's opinion in reviewing
that opinion.
See Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d
Cir. 2001) ("The grounds upon which an administrative order must be
judged are those upon which the record discloses that its action was
based. ") (quoting SEC v. Che:nery Corporation, 318 U. S. 80, 87 (1943)) .
Therefore, even if the DOT could provide a basis for the ALJ's
9
finding,
the Court cannot affirm his decision on such a basis.
Indeed, as Plaintiff points out, there are numerous practical problems
in relying on grounds not cited by the ALJ.
It is not clear, for
instance, whether the ALJ considered "golf club manager, restaurant
manager" to be a hybrid position or two separate positions.
Plaintiff
contends that the description of Manager, Golf Club contained in the
DOT does not accurately reflect her actual position.
The ALJ
obviously did not address this issue because he did not rely on the
DOT.
This demonstrates why the Court cannot meaningfully review his
findings in this regard.
Likewise, the Court cannot adequately review the ALJ's finding
that
Plaintiff's inability to push and pull with her upper
extremities only minimally impacted the occupational base.
Again,
he did not consult a vocational expert on this issue, but rather,
relied solely on S.S.R. 85-15.
Defendant's argument that S.S.R.
85-15 is not relevant until Step Five of the sequential analysis misses
the mark.
Although this case did not involve a Step Five
determination, the ALJ himself relied on S.S.R. 85-15 in making his
Step Four determination that the occupational base for light work
was not significantly eroded.
While S.S.R. 85-15 may not have been
intended to be used for this purpose, that was how it was used in
this case.
Indeed, because it was the only basis on which the ALJ
determined that Plaintiff s limitations regarding pushing and pulling
I
10
did not impact the occupational base, his finding can only be upheld
if the Ruling does, in fact, support his finding.
However, Plaintiff
is correct that S.S.R. 85-15 does not address the impact of limitations
caused by pushing or pulling of the upper extremities on the
occupational base.
Because the ALJ did not explain his reliance on
this Ruling, which does not appear to support his analysis, and because
he provided no further bases for his finding regarding erosion of
the occupational base, the Court is unable to determine whether
substantial evidence supports his finding.
The Court expresses no opinion as to whether the ALJ's finding
that Plaintiff can return to her past relevant work
by the record.
cou~d
be supported
It is the need for further explanation that mandates
the remand in this case. l
The Court does note that the use of a
vocational expert could well alleviate the problems in this case.
V.
Conclusion
In short, the record simply does not permit the Court to decide
whether the ALJ's determination that Plaintiff could return to her
past relevant work as a golf club manager, restaurant manager is
supported by substantial evidence, and, accordingly, the Court finds
that substantial evidence does not support the ALJ' s decision in this
Although the Court does not reach Plaintiff's argument in
regard to the ALJ's treatment of the opinion of the state agency
reviewer, the ALJ, on remand, should, of course, ensure that this
opinion is properly considered.
1
11
case.
The Court hereby remands this case to the Commissioner for
reconsideration consistent with this Order.
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
12
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