LOKAY v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
MEMORANDUM JUDGMENT ORDER granting 12 Plaintiff's Motion for Summary Judgment and denying 14 Defendant's Motion for Summary Judgment. Pursuant to section 4 of 42 U.S.C. Section 405(g) this case shall be remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 7/5/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM LOKAY,
Plaintiff,
v.
Civil Action No. 10-470
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'
JI~y
of July 2011, upon due consideration
cross-motions for summary judgment pursuant to
plaintiff's request for review of the decision of the Commissioner
of
Social
applications
("Commissioner" )
Security
for
disability
denying
insurance
benefits
plaintiff's
("DIB")
and
supplemental security income ("SSI") under Title II and Title XVI,
respectively, of the Social Security Act
("Act"), IT IS ORDERED
that plaintiff's motion for summary judgment (Document No. 12) be,
and the same hereby is, granted, and the Commissioner's motion for
summary judgment
denied.
to
(Document No.
14) be,
and the same hereby is,
This case will be remanded to the Commissioner pursuant
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,
~A072
(Rev. 8/82)
the findings leading to
such a
substantial
conclusion must
be
based upon
evidence.
"Substantial
scintilla.
evidence has
been defined as
'more
than a
mere
It means such relevant evidence as a reasonable mind
might accept as adequate.'"
(3d Cir. 1999)
Plummer v. Apfel, 186 F.3d 422, 427
(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),
quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
evaluating
findings
I
whether
\\
substantial
'leniency
[should]
evidence
be
shown
supports
in
an
In
ALJ/s
establishing
the
claimant's disability, and ... the [Commissionerls] responsibility
to rebut it
Barnhart
v.
I
[should]
be strictly construed
326 F.3d 376
Califano l
606
1
,
II
Reefer v.
379 (3d Cir. 2003), quoting, Dobrowolsky
F.2d 403
1
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 an SSI application on February 71 2007, and
a DIB application on March 2, 2007, alleging disability beginning
December
10,
2005,
due
to
an
infection on
Plaintiff's applications were denied.
ALJ held a hearing on January 51 2009
1
his
I
an
at which plaintiff, who was
On February 3,
the ALJ issued a decision finding that plaintiff is not
~A072
(Rev. 8182)
lung.
At plaintiff's request
represented by counsel, appeared and testified.
2009,
left
-
2
disabled.
The Appeals Council denied plaintiff / s
review on March 10/
2010,
request for
making the ALJ's decision the final
decision of the Commissioner.
The instant action followed.
Plaintiff, who has a high school education, was 51 years old
at the time of the ALJ's decision and is classified as a person
closely approaching advanced age under the regulations.
§§404 .1563 (d),
416.963 (d) .
Plaintiff
experience as a warehouse worker,
has
past
20 C.F.R.
relevant
work
forklift operator and cabinet
maker, but he has not 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
the Act.
The ALJ found that
plaintiff suffers from the severe impairments of hepatitis C,
chronic chest wall pain and restrictive lung disease secondary to
surgical
adhesions,
diabetes mellitus
and osteoarthritis,
but
those impairments, alone or in combination, do not meet or equal
the
criteria
of
any
of
the
listed
impairments
set
Appendix 1 of 20 C.F.R., Subpart P, Regulation No.4
forth
in
("Appendix
1") .
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacityl to perform a full range of light work (the
lResidual 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).
~A072
(Rev, 8/82)
3
"RFC Finding").
The ALJ then concluded that plaintiff could not
perform his past work, but his vocational factors and residual
functional capacity permit him to make an adjustment to other work
that exists in significant numbers in the national economy such as
a furniture parts and stock inspector, finish stock inspector and
hardware assembler.
Accordingly, 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
impairment which can be expected to last for a continuous period
of
at
least
1382c(a) (3) (A).
twelve
months.
42
U.S.C.
§§423(d) (1) (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
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 prevents
performing his past relevant work; and
(5)
him from
if so, whether the
claimant can perform any other work that exists in the national
economy,
in light of his age,
education,
~A072
(Rev. 8/82)
-
4
work experience and
residual
functional
416.920(a) (4).
20
capacity.
C.F.R.
§§404.1520(a) (4),
If the claimant is found disabled or not disabled
at any step, further inquiry is unnecessary.
Plaintiff
argues
that
the ALJ
erred
Id.
in finding
him not
disabled at step 5 of the sequential evaluation process.
particular
certain
I
plaintiff alleges
non-exertional
Finding.
that
In
the ALJ erred by omitting
functional
limitations
from
the
RFC
The court agrees and concludes that this case must be
remanded to the Commissioner for additional development at step 5
of the sequential evaluation process.
In his decision,
the ALJ stated that he gave substantial
weight to the opinion of Dr.
Gregory Mortimer,
a state agency
physician, who reviewed plaintiff's medical records and completed
a physical residual functional capacity assessment.
The
ALJ
stated
in
his
decision
that
Dr.
(R. 425-31).
Mortimer
concluded
plaintiff "can perform work at the light level." (R. 13).
The ALJ
inaccurately characterized Dr. Mortimer's opinion of plaintiff's
physical capabilities.
Dr. Mortimer actually found that plaintiff
can perform light work with certain non-exertional limitations.
Specifically, Dr. Mortimer determined that plaintiff was limited
to
only
occasional
crawling
scaffolds.
and
balancing,
climbing
(R.
427).
of
stooping,
ramps,
stairs,
In addition,
Dr.
kneeling,
ladders,
Mortimer
crouching,
ropes
found
and
that
plaintiff must avoid concentrated exposure to fumes 1 odors, dusts 1
gases and poor ventilation,
and he must avoid all exposure to
hazards such as machinery and heights.
~A072
(Rev. 8/82)
- 5
(R.
428).
Although the ALJ gave substantial weight to Dr. Mortimer's
opinion,
he failed to incorporate in the RFC Finding the non
exertional limitations which Dr. Mortimer identified.
the ALJ
failed
to explain why he
Moreover,
supposedly gave substantial
weight to Dr. Mortimer's opinion, yet apparently rejected the non
exertional limitations relating to postural movements, exposure to
fumes, dust and the like, and exposure to hazards such as heights
and
machinery.
Although
the
ALJ
is
free
to
reject
certain
evidence, he must give some indication of his reasons for doing
so.
Fargnoli v.
Massanari,
247 F.3d 34,
43
(3d Cir.
2001).
Without such explanation, this court is left to guess why the ALJ
rejected certain aspects of Dr.
Mortimer's opinion.
For this
reason, the case must be remanded so that the ALJ can explain why
he gave substantial weight to Dr. Mortimer's opinion, yet failed
to include in the RFC Finding the non-exertional limitations Dr.
Mortimer identified.
If the ALJ determines that he should have
adopted those non-exertional limitations,
he shall factor them
into his assessment of plaintiff's residual functional capacity.
In that event, the ALJ shall obtain vocational expert testimony to
complete his analysis of plaintiff's case.
For the foregoing reasons,
plaintiff's 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
'll%A072
(Rev. 8/82)
- 6
Commissioner
for
further
proceedings
consistent
with
this
Memorandum Judgment Order.
~~~
Gustave Diamond
United States District Judge
cc: Karl E. Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Paul Kovac
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
f!&AO 72
(Rev 8/82)
- 7
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