SMITH v. COLVIN

Filing 20

MEMORANDUM AND ORDER OF COURT granting 15 Plaintiff's Motion for Summary Judgment and denying 18 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 6/24/13 is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion pursuant to sentence 4 of 42 U.S.C. Section 405(g). See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 3/31/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBIN ROY SMITH,
Plaintiff,
v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 14cv313E

MEMORANDUM AND ORDER OF COURT
AND NOW, this 31 SI

day of March, 2016, upon due consideration of the parties' cross-

motions for summary judgment relating to plaintiff's request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiff'S applications for disability
insurance benefits and supplemental security income under Titles II and XVI, respectively, of the
Social Security Act ("Act"), IT IS ORDERED that plaintiff's motion for summary judgment
(Document No. 15) be, and the same hereby is, granted and the Commissioner's motion for
summary judgment (Document No. 18) be, and the same hereby is, denied. The Commissioner's
decision of June 24, 2013, will be reversed and this case will be remanded to the Commissioner
for further proceedings consistent with this opinion pursuant sentence 4 of 42 U.S.C. §405(g).
A reviewing court is bound to the Commissioner's findings of fact ifthey are supported by
substantial evidence even if it would have decided the factual inquiry differently. Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001). "Substantial evidence has been defined as 'more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.'"
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Plummer v. Apfel, 186 F.3d 422,427 (3d Cir. 1999) (citation omitted).

Despite the deference to administrative decisions required by the substantial evidence
standard, reviewing courts "'retain a responsibility to scrutinize the entire record and to reverse or
remand if the [Commissioner's] decision is not supported by substantial evidence.'" Morales v.
Apfel, 225 F.3d 310,317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir.
1981 )). In evaluating whether substantial evidence supports an ALJ' s findings, '" leniency [should]
be shown in establishing the claimant's disability, and ... the [Commissioner's] responsibility to
rebut it [should] be strictly construed .... '" Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)

(quoting Dobrowolsky v. Califano, 606 F.2d 403,407 (3d Cir. 1979)).
Plaintiff protectively filed his pending applications for disability insurance benefits and
supplemental security income on June 15,2011, and July 19,2011, respectively, both alleging a
disability onset date ofMarch 17,2009, due to knee pain, depression, high cholesterol and diabetes.
Plaintiffs applications were denied initially. At plaintiffs request an ALJ held a video hearing on
November 14,2012, at which plaintiff, represented by counsel, appeared and testified. On June
24,2013, the ALJ issued a decision finding that plaintiffis not disabled. On October 21,2014, the
Appeals Council denied review making the ALl's decision the final decision ofthe Commissioner.
Plaintiff was 49 years old at the time of the ALJ's decision and is classified as a younger
person under the regulations. 20 C.F.R. §§404.1563(c) and 416.963(c). He has a ninth grade
education, which is classified as limited. 20 C.F.R. §§404.1564(b)(3) and 416.964(b)(3).
Plaintiff has past relevant work experience as a truck driver, but he has not engaged in any
substantial gainful activity since his alleged onset date.
After reviewing plaintiffs medical records and hearing plaintiffs testimony, the ALJ
concluded that plaintiff is not disabled within the meaning of the Act. The ALJ found that
although plaintiff has the severe impairments of left knee degenerative changes, diabetes, sleep

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apnea, pulmonary disease and obesity, those impairments, alone or in combination, do not meet
or medically equal the criteria of any of the impairments listed at Appendix 1 of20 C.F.R., Part
404, Subpart P.
The ALl also found that plaintiff retains the residual functional capacity to engage in
work at the sedentary exertionallevel "in a work environment without excessive dust, fumes
and extremes of temperatures." (R.28). In lieu of vocational expert testimony, the ALl relied
on SSR 85-15 and Medical-Vocational Rule 201.19 of Appendix 2 to 20 C.F.R., Part 404,
Subpart P, as a framework to direct a finding that plaintiff is not disabled.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment which can be expected to last for a continuous
period of at least twelve months. 42 U.S.C. §§423(d)(l)(A) and 1382c(a)(3)(A). The
impairment or impairments must be so severe that the claimant "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 .... " 42 U.S.C.
§§423(d)(2)(A) and §1382c(a)(3)(B).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability. I 20 C.F.R.
§§404.l520 and 416.920. If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further. Id.; see Barnhart v. Thomas, 540 U.S. 20 (2003).

1 The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix I; (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920; Newell v. Commissioner
of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).

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Here, plaintiff raises several challenges to the ALJ's finding of not disabled: (1) the
ALJ's residual functional capacity finding failed to accurately characterize the extent of
plaintiffs environmental restrictions; (2); the ALJ erroneously relied on the MedicalVocational guidelines ("the grids") and SSR 85-15 in finding plaintiff not disabled; and, (3) the
ALJ erroneously applied the grids mechanically in a borderline age situation. Upon review, the
court finds that the ALJ's residual functional capacity finding is not supported by substantial
evidence, that the ALJ improperly relied on SSR 85-15 in lieu of vocational expert testimony at
step 5, and that he mechanically applied the grids without taking into consideration plaintiff's
borderline age. 2

All of these errors necessitate a remand.

Plaintiff s first argument is that the ALJ's residual functional capacity ("RFC") findin~
inaccurately characterizes the extent of plaintiff's environmental restrictions as found by his
treating pulmonologist, Dr. Frank Amal, who treated plaintiff for chronic obstructive
pulmonary disease and obstructive sleep apnea. The court agrees.

2 The court has considered two additional arguments raised by plaintiff and finds them to be
without merit. Specifically, the court is satisfied that the ALJ adhered to the appropriate standards in
evaluating plaintiffs subjective complaints of pain and limitations in accordance with 20 C.F.R.
§§404.1529(c) & 416.929( c) and SSR 96-7p, and that his credibility finding is adequately explained and
supported by substantial evidence. (R. 29-33). It also is clear from the ALJ's decision that he complied
with SSR 02-1 P and considered plaintiffs severe impairment of obesity at step 3 of the sequential
evaluation process and also when assessing plaintiffs residual functional capacity. (R. 27). The ALJ's
evaluation of plaintiffs obesity likewise is supported by substantial evidence. See Rutherford v. Barnhart,
399 F.3d 546,552-53 (3d Cir. 2005)(ALJ's reliance on medical evidence from sources who were aware
of claimant's obesity but did not mention obesity as contributing to any limitations was "satisfactory, if
indirect" consideration of evidence even where ALJ did not even mention obesity in decision).

3 Residual functional capacity is defined as the most an individual still can do in a work setting
despite the limitations caused by his impairments. Fargnoli, 247 F.3d at 40; 20 C.F.R. §§404.1545(a)(1);
416.945(a)(1). Residual functional capacity is an assessment of an individual's ability to do sustained
work-related physical and mental activities in a work-setting on a regular and continuing basis, which
means "8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p. In assessing
residual functional capacity, the ALJ is to consider all of the relevant medical and other evidence in the
case record in determining the individual's ability to meet the physical, mental, sensory and other
requirements of work. 20 C.F.R. §§404.l545(a)(3)-(4); 416.945(a)(3)-(4); SSR 96-8p.

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In a pulmonary impairment questionnaire, Dr. Amal opined that plaintiff is limited in
his ability to work at a regular job on a sustained basis by the need to avoid wetness, odors,
fumes, temperature extremes, humidity, dust, perfumes, gases, solvents/cleaners, cigarette
smoke, soldering fluxes and chemicals. (R. 319-20). In his decision, the ALJ acknowledged
Dr. Amal's opinion that plaintiff "would need to avoid wetness, odors, fumes, temperature
extremes, humidity and dust" and that "[t]hese assessed restrictions fall within the area of
expertise of a pulmonologist, especially one who has maintained a treating relationship" with
plaintiff. (R. 33). Accordingly, the ALl determined that Dr. Amal's opinion regarding
environmental restrictions was entitled to "significant weight." (R. 33).
Although the ALl explicitly stated that he was incorporating Dr. Amal's environmental
restrictions into the RFC finding, his actual RFC finding merely limits plaintiff to a work
environment "without excessive dust, fumes and extremes of temperatures." (R. 28). There is
no mention in the RFC finding as to any of the other environmental restrictions that Dr. Amal
advanced regarding wetness, odors, fumes, humidity, perfumes, gases, solvents/cleaners,
cigarette smoke, soldering fluxes and chemicals, nor does the ALl offer an explanation as to
why the RFC finding merely limits plaintiff's exposure to "excessive" dust, fumes and
extremes of temperature, when Dr. Amal indicated that plaintiff was to avoid them.
The Commissioner attempts to brush aside these inconsistencies by arguing that the
ALl is not required to incorporate into the RFC finding every single limitation advanced by a
medical source, Wilkinson v. Commissioner of Social Security, 2014 WL 840925 (3d Cir.,
March 5, 2014), and that it is the function of the ALl alone to determine a claimant's RFC. See
20 C.F.R. §§404.1527(d) and 416.927(d); SSR 96-5p (the opinion of any physician, including a
treating physician, on the issue ofRFC never is entitled to special significance).
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While the Commissioner's premise is true, it equally is true that the ALl's RFC finding
must '''be accompanied by a clear and satisfactory explication of the basis on which it rests.'"
Fargnoli, 577 F.3d at 41 (citation omitted). Moreover, the ALl must give some indication of
the evidence that he rejects and his reasons for discounting that evidence. Fargnoli, 247 F.3d at

43.
Here, the ALl did not indicate that he was rejecting any of the restrictions advanced by
Dr. Amal, but to the contrary expressly stated that he was giving Dr. Amal' s opinion
significant weight and that he was incorporating those environmental restrictions into the RFC
finding. Moreover, it is unclear why the ALl decided to limit plaintiffs exposure to
"excessive" dust, fumes and extremes of temperature, when Dr. Amal's opinion was that
plaintiff was to avoid those irritants. Because the ALl failed to incorporate into the RFC
finding the environmental restrictions advanced by Dr. Amal, and failed to offer any
explanation for the inconsistencies between Dr. Amal's opinion and the RFC finding, this case
must be remanded for clarification.
Plaintiff s second argument is that the ALl improperly found him not disabled at step 5
without taking vocational expert testimony to evaluate the impact of plaintiff s environmental
restrictions on his ability to perform substantial gainful activity. Upon review, the court agrees
and finds that the ALl improperly relied on the grids and SSR 85-15 in finding plaintiff not
disabled.
At step five of the sequential evaluation process, the burden shifts to the Commissioner
to show that other jobs exist in significant numbers in the national economy that the claimant
can perform consistent with her medical impairments, age, education, past work experience,

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and residual functional capacity. 20 C.F.R. §§404.1520(g); 416.920(g); Johnson v.
Commissioner of Social Security, 529 F.3d 198,205 (3d. Cir. 2008).
The grids set out various combinations of age, education, work experience and residual
functional capacity and direct a finding of disabled or not disabled for each combination. See
20 C.F.R. Part 404, Subpart P, Appendix 2. When the four factors in a claimant's case
correspond exactly with the four factors set forth in the grids, the ALJ must reach the result the
grids reach. Sykes v. Apfel, 228 F.3d 259,263 (3d Cir. 2000); 20 C.F.R. §§404.1569 and
416.969; 20 C.F.R., Part 404, Subpart P, Appendix 2, §200.00.
However, when not all of the factors pertaining to a claimant's case correspond with a
particular grid rule, or when non-exertionallimitations are present, the grids may be used as a
framework for decision-making. Id. Where a claimant has non-exertional impairments, the
Third Circuit Court of Appeals has held that "in the absence of a rulemaking establishing the
fact of an undiminished occupational base, the Commissioner cannot determine that a
claimant's non-exertional impairments do not significantly erode his occupational base under
the medical-vocational guidelines without either taking additional vocational evidence
establishing as much or providing notice to the claimant of his intention to take official notice
of this fact (and providing the claimant with an opportunity to counter the conclusion)." Sykes,
228 F.3d at 261.
Here, the ALJ used grid rule 201.19 as a framework for his decision,4 then relied on
SSR 85-15 5 in concluding that plaintiffs non-exertional environmental limitations "have little

Grid rule 201.19 directs a finding of not disabled for a younger individual age 45-49 with a
limited education, skilled or semi-skilled past work experience (regardless oftransferability of skills) and
a residual functional capacity for sedentary work.
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5 The purpose of SSR 85-15 is to explain how the regulations provide a framework for decisions
concerning individuals who have only nonexertional limitations. SSR 85-15 provides examples of

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or no effect on the occupational base of unskilled sedentary work." (R. 34). The court finds
the ALl's reliance on SSR 85-15 in this case unsupportable.
As an initial matter, the record is devoid of any indication that plaintiff was provided
with advance notice of the ALl's intent to rely on SSR 85-15 instead of calling a vocational
expert. Neither the Hearing Notice (R. 75-99) nor the Notice of Hearing Reminder (R. 101­
106) put plaintiff on notice that the ALl did not intend to call a vocational expert at the hearing.
The Third Circuit Court of Appeals has held that "[i]f an agency will rely on rules as a
substitute for individualized determination, and thus relieve the agency from the burden of
producing evidence, ... advance notice should be given." Allen v. Barnhart, 417 F.3d 396, 407
(3d Cir. 2005). The court explained that "[w ]hile the Agency can meet its burden by reference
to a Ruling ... nonetheless, the claimant should have the opportunity to consider whether [he]
wishes to attempt to undercut the Commissioner's proffer by calling [his] own expert.
Obviously, this requires notice in advance of the hearing." rd. at 407-408.
Where the Commissioner fails to notify a claimant in advance of a hearing, it is
"appropriate to give close scrutiny to the ALl's reliance on a Ruling as satisfying the
Commissioner's burden at Step 5." Id. at 308; see also Meyler v. Commissioner of Soc. Sec.,
238 Fed. Appx. 884, 890 (3d Cir. 2007) (close scrutiny of the ALl's reliance on an SSR at step
five is appropriate where the ALl fails to provide advance notice to the claimant). Close
scrutiny of the ALl's step 5 finding here establishes that the ALl's reliance on SSR 85-15 in
this case was improper.
Generally, where a claimant suffers from only nonexertionallimitations, an ALl may
under certain circumstances forego vocational expert testimony at step 5 and instead use the

nonexertionallimitations, including environmental restrictions, and their effects on the occupational base.
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grids as a framework for decision making while relying upon an SSR to determine a claimant's
occupational job base. See Allen, 417 F .3d at 404. However, an ALJ may not rely on an SSR
in summary fashion without explaining how a claimant's particular work-related limitations are
addressed by a specific aspect of the Ruling. Id. Indeed, a "conclusory reference" to an SSR is
insufficient. Id. at 406. Rather, the ALJ must explain the "'fit' between the facts of a given
case, namely, the specific nonexertional impairments, and the way in which the Rule dictates
that such nonexertionallimitations impact the base." ld. Accordingly, if an ALJ wishes to rely
on an SSR in lieu of vocational expert testimony, "it must be crystal-clear that the SSR is
probative as to the way in which the nonexertionallimitations impact the ability to work, and
thus, the occupational base." Id. at 407.
In this case, the ALJ recognized that SSR 85-15 provides that "where a person has a
medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad
world of work would be minimal because most job environments do not involve great noise,
amounts of dust, etc .." (R. 35)(citing SSR 85-15). However, what the ALJ does not
acknowledge is that SSR 85-15 also provides that "where a person can tolerate little noise,
dust, etc., the impact on the ability to work would be considerable because very few job
environments are entirely free of irritants, pollutants and other potentially damaging
conditions." Significantly, the Ruling expressly states that "where the environmental
restriction falls between very little and excessive, resolution of the issue generally will require
consultation of occupational reference materials or the services of a [vocational source]."
Here, as already discussed, the ALl's RFC finding in regard to plaintiffs environmental
restrictions is less than clear, and the extent of those restrictions is crucial to a determination of
whether SSR 85-15 properly can be applied in this case. If, as Dr. Arnal's opinion seems to
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suggest, plaintiff must avoid entirely environmental irritants, SSR 85-15 instructs that the
impact on his ability to work would be considerable. If the extent ofthe environmental
restrictions falls somewhere between very little and excessive, then the ALJ could not properly
rely on SSR 85-15 by its very terms. In any event, particularly in light of the ALl's inadequate
RFC finding, the ALl's reliance on SSR 85-15 in this case is not supportable. Accordingly, the
court finds that the ALl's step 5 finding is not supported by substantial evidence and this case
must be remanded for that reason as well.
Plaintiffs final argument is that the ALJ improperly applied the grids in this case
without taking into account that at the time of the ALl's decision plaintiff was only 7 months
from reaching an older age category under the regulations. As already noted, at the time of the
ALl's decision on June 24, 2013, plaintiff was 49 years old, which is classified as a younger
person. 20 C.F.R. §§404.1563(c) and 416.963(c). Less than 7 months later, on January 14,
2014, plaintiff reached age 50, which is classified as a person closely approaching advanced
age. 20 C.F.R. §§404.1563(d) and 416.963(d). Plaintiff argues that because he was in a
borderline situation with respect to the age category, the ALJ should have addressed the issue
rather than mechanically apply the grids as a framework to find him not disabled. Again, the
court agrees with plaintiff.
The Regulations caution against mechanical application of the grids in a "borderline
situation." Section 404.1 563(b) and 416.963(b) provide in pertinent part:
[w]e will use each ofthe age categories that applies to you during
the period for which we must determine if you are disabled. We
will not apply the age categories mechanically in a borderline
situation. If you are within a few days to a few months of
reaching an older age category, and using the older age category
would result in a determination or decision that you are disabled,
we will consider whether to use the older age category after
evaluating the overall impact of all the factors of your case.
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If the ALJ does not properly apply §§404.l563(b) and 416.963(b), and ifproper
application of that regulation could change the ALJ's determination, the matter must be
remanded for further consideration. Kane v. Heckler, 776 F.2d 1130, 1134 (3d Cir.l985).
Although there is no bright line test for determining what constitutes a "borderline
situation," a number of courts have found that 7 months falls within the borderline category.
See, e.g., Istik v. Astrue, 2009 WL 382503 *4 (W.D.Pa., Feb. 13,2009); Williams v. Bowen,

1987 WL 9148, *2 (E.D.Pa., April 6, 1987); see also Rosado v. Bowen, 1986 WL 15004, *4
(E.D.Pa. Dec.30, 1986)(9 months). Cf Holland v. Commissioner of Social Security, 2012 WL
11052 (W.D.Pa., Jan. 3, 2012)(5 months would be outer limit of borderline situation).
Here, the court believes that the ALJ should not have applied the grids mechanically
without giving consideration to plaintiffs borderline age situation because such an analysis
could have changed the ALJ's determination. Under the grids, an individual closely
approaching advanced age with a limited education and an RFC for sedentary work and whose
past relevant work was either unskilled or skilled or semi-skilled, but with non-transferable
work skills, is disabled under grid rules 201.09 or 201.10. 6 Accordingly, the ALl's application
of the grid rules mechanically in this borderline situation constitutes another error necessitating
a remand. See Davis v. Astrue, 2009 WL 3241853, at *6-7 (W.D. Pa. Oct 5, 2009)(case
remanded where ALJ failed to address borderline age where consideration may have changed
outcome).

Only if plaintiffs past relevant work experience was skilled or semiskilled with transferable
work skills would the grids dictate a finding of not disabled for the age category of closely approaching
advanced age with plaintiff's limited education and RFC for sedentary work. Grid Rule 201.11. Because
transferability of work skills is not material to whether a person in the younger age category is disabled
under the grids, the ALl did not make a determination on transferability. (R. 34).
6

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Because the ALJ failed to adequately explain his residual functional capacity finding,
improperly relied on SSR 85-15 and mechanically applied the grids in a borderline age
situation, his step 5 finding that plaintiff is not disabled is not supported by substantial
evidence. As a result, this case must be remanded to the Commissioner pursuant to sentence 4
of §405(g). On remand, the ALJ must clarify his RFC finding as it relates to plaintiffs
environmental restrictions and explain how plaintiffs specific environmental restrictions
impact his ability to perform substantial gainful employment. As stated by the Third Circui~
"[t]his can be accomplished by noting how SSR 85-15 is relevant and controlling-if indeed
that is the case-<Jr by obtaining the individualized assessment that SSR 85-15 seems to prefer
by way of a vocational expert." Allen, 417 F.3d at 407. He must also take into consideration
plaintiff s borderline age situation and make a determination as to the transferability of skills in
regard to plaintiffs past relevant work.
Accordingly, for the foregoing reasons, plaintiffs motion for summary judgment will
be granted, the Commissioner's motion for summary judgment will be denied, and this case
will be remanded to the Commissioner for further proceedings consistent with this opinion.

s/Gustave Diamond
Gustave Diamond
United States District Judge
cc:

Beth Arnold, Esq.
Binder and Binder
526 Hamilton Road
Merion, PA 19066
Marshall 1. Piccinini

Assistant U.S. Attorney

Room A330

17 South Park Row

Erie, PA 16501

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