VENTURINI v. ASTRUE

Filing 31

MEMORANDUM JUDGMENT ORDER granting plaintiff's motion for summary judgment and denying 24 defendant's Motion for Summary Judgment. The case is remanded to the Commissioner of Social Security for further proceedings consistent with the court's Memorandum Judgment Order. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 3/23/11. (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREE N. VENTURINI, Plaintiff,

v.
Civil Action No. 09-987 MICHAEL J. AS TRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this of the parties'

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of March 2011, upon due consideration

cross-motions for summary judgment pursuant to

plaintiff's request for review of the decision of the Commissioner of Social Security for ("Commissioner" ) insurance denying benefits plaintiff's ("DIB") and

applications

disability

supplemental security income ("SSI") under Title II and Title XVI, respectively, of the Social Security Act ("Act"), IT IS ORDERED 23)1

that plaintiff's motion for summary judgment

(Document No.

be, and the same hereby is, granted, and the Commissioner's motion for summary judgment (Document No. 24) be, and the same hereby is, denied. This case will be remanded to the Commissioner pursuant

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lPlaintiff, who is a pro se litigant, filed a "Brief in Support of [his] Case Against S. S." (Document No. 23) ("plaintiff's Brief"), but failed to file a motion for summary judgment itself. The court is mindful of its obligation to liberally construe a pro se plaintiff's pleadings and submissions, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), thus we consider plaintiff's Brief, which includes factual averments and legal argument, to include his summary judgment motion as well.

to

sentence

4

of

42

U.

S. C.

§405 (g)

for

further

proceedings

consistent with this Memorandum Judgment Order. When the Commissioner determines that a claimant is not

disabled within the meaning of the Act, the findings leading to such a conclusion must be based upon substantial 'more evidence. than a mere

"Substantial scintilla.

evidence has

been defined as

It means such relevant evidence as a reasonable mind Plummer v. Apfel, 186 F.3d 422, 427

might accept as adequate. '" (3d Cir. 1999)

(citation omitted) .

Despite the deference to administrative decisions required by this standard, reviewing courts \\, retain a responsibility to

scrutinize the entire record and to reverse or remand if the [Commissioner's] evidence.'" decision is not supported by substantial

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), In

quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). evaluating findings, whether \\ 'leniency sUbstantial [should] be evidence shown supports in an

ALJ's the

establishing

claimant's disability, and ... the [Commissioner's] responsibility to rebut it [should] be strictly construed .... '
II

Reefer v.

Barnhart, 326 F.3d 376, 379 (3d Cir. 2003), quoting, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). These well-

established principles dictate that the court remand this case to the Commissioner for further proceedings consistent with this

Memorandum Judgment Order. Plaintiff filed his applications for DIB and SSI on September 26, 2006, alleging disability beginning June 1, 2002. Plaintiff's

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applications were denied. hearing on May 14,

At plaintiff's request, an ALJ held a at which plaintiff, who was

2008,

unrepresented, appeared and testified.

At the hearing, the ALJ

informed plaintiff of his right to representation and indicated the
hear~ng

could be postponed if plaintiff wished to obtain a (R. 18). Plaintiff stated that he understood his but elected to proceed without a

representative. right to

representation, (R. 18).

representative.

On September 2, 2008, the ALJ issued a decision finding that plaintiff is not disabled. The Appeals Council denied plaintiff's

request for review on May 27, 2009, making the ALJ's decision the final decision of the Commissioner.
Pla~ntiff,

The instant action followed.

who has a high school education, was 48 years old

at the time of the ALJ's decision and is classified as a younger individual 416.963 (c) . under the regulations. 20 C.F.R. §§404.1563(c),

Plaintiff has past relevant work experience as a parking lot attendant, but he has not

produce manager and a

engaged in substantial gainful activity at any time since his alleged onset date of disability. After reviewing plaintiff's medical records and receiving his testimony at the hearing, the ALJ concluded that plaintiff is not disabled wi thin the meaning of plaintiff suffers with from the the Act. The ALJ found that of ankylosing but those

severe

impairments

spondylitis

occasional

recurrent

iritis,

impairments, alone or in combination, do not meet or equal the criteria of any of the listed impairments set forth in Appendix 1
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of 20 C.F.R., Subpart P, Regulation NO.4 ("Appendix I"). The ALJ also found that plaintiff retains the residual

functional capacity2 to perform a full range of medium work (the "RFC Finding"). The ALJ then concluded that plaintiff could not but his vocational factors and residual

perform his past work,

functional capacity permit him to make an adjustment to other work that exists Accordingly, in significant numbers in the national economy.

the ALJ concluded that plaintiff is not disabled

within the meaning of the Act. The.Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental
impairmeri~

which can be expected to last for a continuous period twelve months. 42 U.S.C. §§423 (d) (1) (A) ,

of

at

least

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), 1382c(a) (3) (B).

The Commissioner has promulgated regulations that incorporate a five-step sequential evaluation process for determining whether a claimant is disabled. The ALJ must determine: (1) whether the

2Residual functional capacity is defined as that which an individual still is able to do despite the limitations caused by his impairments. 20 C.F.R. §§404.1545(a) (1), 416.945(a) (1). In assessing a claimant's residual functional capacity, the ALJ considers the claimant's ability to meet the physical, mental, sensory . and other requirements of work. 20 C. F. R. §§404.1545(a) (4), 416.945(a) (4).
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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 Appendix 1; (4) if not, whether the claimant's impairment and (5) prevents if so, him from

performing his past relevant work;

whether the

claimant can perform any other work that exists in the national economy, residual in light of his age, functional capacity. education, 20 work experience and §§404.1520(a) (4),

C.F.R.

416.920 (a·) (4).

If the claimant is found disabled or not disabled Id. in finding him not In been

at any step, further inquiry is unnecessary. Plaintiff argues that the ALJ erred

disabled at step 5 of the sequential evaluation process. particular, plaintiff alleges that certain evidence has

suppressed or altered.

In addition,

plaintiff claims the ALJ

failed to adequately develop the record because he did not issue a subpoena for records from Dr. Chris Allen, he denied plaintiff an opportunity to submit information about his work history, and he did not allow plaintiff to view or comment on the record. After reviewing the record in this case, the court concludes that plaintiff's allegation concerning the suppression or alteration of evidence' is· wholly unsubstantiated.
assertio~s

In addition,

plaintiff's

that he was denied an opportunity to submit information

about his work history and precluded from viewing or commenting on the record are contradicted by the administrative hearing

transcript.

However, the

the court finds

that the ALJ failed to

adequately develop

record concerning plaintiff's physical
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capabilities and limitations.

For that reason, this case must be

remanded to the Commissioner for additional development at step 5 of the sequential evaluation process. It is well-established that "ALJs have a duty to develop a full and fair record in social 902 security cases. 1995).
/I

Ventura v.

Shalala,

55 F. 3d 900,

(3d Cir.

The ALJ's duty to

develop a full and fair record is heightened in cases where, as here, a claimant is unrepresented. F.2d 342, 345 (3d Cir. 1980)
i

Livingston v. Califano, 614 606 F.2d at 407. In

Dobrowolsky,

fulfilling the duty to help a pro se claimant develop the record, an ALJ must scrupulously and conscientiously probe into, inquire of and explore 380. In his decision, record of
be~ies ~or

all the relevant facts.

Reefer, 326 F.3d at

the ALJ concluded that

the evidence of In support of three

plaintiff's claim of total disability. the ALJ referenced the results and a

that

conclusion,

consultative examinations plaintiff underwent, note from Dr. Nisenbaum,

treatment

who plaintiff saw for his ankylosing

spondylitis. (R. 13).

The ALJ relied on the opinion of one of the

consultative examiners, Dr. Laufe, to conclude that plaintiff has the residual functional capacity to perform the full range of medium work (R. 12), which 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), 416.967(c) .

Despite ultimately concluding that plaintiff has the residual functional capacity to perform medium work, the ALJ never inquired
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into plaintiff's ability to perform the physical requirements of such work. Although the ALJ generally asked plaintiff about his (R. 39 40), and asked whether he had difficulty (R. 36), he did not ask plaintiff specific his ability to perform the physical

daily activities,

sitting or standing, questions concerning

requirements of basic work activities such as walking, standing, sitting, handling. ALJ lifting, See pushing, pulling, reaching, carrying, or The of

20 C.F.R. §§404.1521(b) (1), 416.921(b) (1). he was interested in the practical effect

indicated

plaintiff's medical condition on his ability to work,

(R. 44-45),

but he never specifically asked plaintiff whether he was capable of performing particular physical activities or how long he could sustain the activities he is capable of performing. the ALJ's failure to elicit specific information In light of from this

unrepresented plaintiff concerning his functional limitations, a remand is required. 410 (E.D. Pa. 1995) See Gauthney v. Shalala, 890 F. Supp. 401, (remanding where the ALJ failed to elicit the details of plaintiff's functional

testimony limitations) 2009) record

about
i

Pryor v. Astrue, 2009 WL 890581 (W.D. Pa. Mar. 27,

(remanding where the ALJ failed to adequately develop the by neglecting to ask the claimant specific questions

concerning his functional limitations). The court also is concerned by the ALJ's failure to obtain the medical records of Dr. deemed hearing,
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Chris Allen, do so. he
7

or to explain why he the to administrative medical

it

unnecessary plaintiff

to

During tried

indicated
-

request

information information.

from

Dr.

Allen,

but

was

unable

to

obtain

that

(R. 24-25).

Before the hearing concluded, the ALJ

indicated he would get Dr. Allen's records if plaintiff completed a release form authorizing him to do so. indication in the record if plaintiff (R. 49). There is no required

completed the

release form, or if the ALJ made any attempt to obtain Dr. Allen's records. Although the ALJ was not required to issue a subpoena

for Dr. Allen's records if he believed that such evidence was not reasonably necessary for a full presentation of the case, see 20 C.F.R. §§404.950(d) (1), 416.1450(d) (1), the ALJ did not explain if he deemed the records unnecessary or why they otherwise were not obtained. 3 This matter therefore must be addressed on remand. the ALJ shall his elicit to specific perform testimony from the physical stand,

On remand, plaintiff

concerning

ability

requirements of work, sit, lift, push, pull,

particularly his ability to walk, reach, carry and handle.

Depending on

plaintiff's testimony concerning his functional capabilities and limitations, the ALJ shall, if necessary, reassess plaintiff's

residual functional capacity. vocational expert testimony

If warranted, the ALJ shall obtain to complete his analysis of

plaintiff's case.

In addition, the ALJ shall consider whether Dr.

Allen's records are required to fully consider plaintiff's case and, if the ALJ deems it necessary, he shall attempt to obtain

3The court recognizes that plaintiff treated with Dr. Allen prior to his alleged onset date of disability, but nevertheless concludes the ALJ should have explained why he did not obtain Dr. Allen's records after he indicated his intent to do so.
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those records, or otherwise explain why they are not pertinent to his anaiysis. For the foregoing reasons, plaintiff's motion for summary

judgment will be granted, the Commissioner's motion for summary judgment will be denied, Commissioner for and this case will be remanded to the proceedings consistent with this

further

Memorandum Judgment Order.

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Gustave Dlamond United States District Judge

cc: Jeffree N. Venturini 5425 Penn Avenue Pittsburgh, PA 15206-3423 Christy Wiegand
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

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