MINCH v. COMMISSIONER OF SOCIAL SECURITY et al

Filing 14

ORDER granting 10 Motion for Summary Judgment; denying 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/13/14. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN DAVID MINCH,

)
) CA No. 13-594
)
)

Plaintiff,
V.
CAROLYN COLVIN,
Defendant.

OPINION AND ORDER
SYNOPSIS
In this action, Plaintiff, proceeding pro se, filed for disability benefits pursuant to Title II
and Title XVI of the Social Security Act, claiming disability due to mental and physical
impairments. Plaintiff’s claims were denied initially, and upon hearing. At the hearing, Plaintiff
participated pro se via videoconference from the Allegheny County Jail. 1 Before the Court are
the Plaintiff’s Motion for Judgment on the Pleadings, and Defendant’s Motion for Summary
Judgment. The present Motions focus solely on Plaintiff’s claim of physical disability relating to
his back pain. For the following reasons, Plaintiff’s Motion will be granted, and Defendant’s
denied. This matter will be remanded for further proceedings.
OPINION
I.

STANDARD OF REVIEW

Judicial review of the Commissioner's final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3) 7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
1

Plaintiff is currently incarcerated, after being convicted of first degree murder on November 15, 2013. As
Defendant observes, if he is deemed disabled, Plaintiff cannot receive benefits while incarcerated.

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district court's role is limited to determining whether the record contains substantial evidence to
support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or re-weigh
the evidence of record; the court can only judge the propriety of the decision with reference to
the grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel,
995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97, 67 S. Ct.
1575, 91 L. Ed. 1995 (1947).
II. THE PARTIES’ MOTIONS
Plaintiff’s appeal focuses on his allegations of disability due to back pain resulting from
repetitive flexing, bending, or twisting of his back. He asserts several challenges: 1) that an
examining consultant, Dr. Sella, stated that he would need to further examine Plaintiff, but no
further examination occurred; 2) that Plaintiff testified that he could not repeatedly bend his
back, and the VE testified that there would be no jobs available for a person with such
limitations; and 3) that the record was devoid of evidence to contradict Plaintiff’s testimony
regarding pain when bending his back. In this relatively unique case, each of Plaintiff’s
arguments flows from the ALJ’s treatment of the medical evidence of record, including Dr.
Sella’s opinion, and the fact that Plaintiff was unrepresented.
Although lack of counsel alone is not cause for remand when the claimant
knowingly has waived the right to counsel, remand is appropriate when the lack of
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counsel prejudices the claimant or causes unfairness at [the] administrative level,
such as when the ALJ fails to adequately develop the administrative record." For
example, "[r]emand is appropriate when the ALJ 'has failed to exercise his authority
to attempt to fill significant evidentiary gaps that are material to the disability
determination.'"

Orner v. Astrue, No. 10-3083, 2011 U.S. Dist. LEXIS 145401, at *23 (E.D. Pa. Aug. 24,
2011) (citations omitted).
"When a claimant properly waives his right to counsel and proceeds pro se, the ALJ's duties
are 'heightened.'" Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009). "In fulfilling the duty to
help a pro se claimant develop the record, an ALJ must scrupulously and conscientiously probe
into, inquire of and explore for all the relevant facts.” Venturini v. Astrue, No. 9-987, 2011 U.S.
Dist. LEXIS 29705, at *8 (W.D. Pa. Mar. 23, 2011).
In this case, the ALJ observed that Dr. Sella, a consulting examiner, conducted an “entirely
negative” examination, without finding myofascial problems or lumbar spinal radiculopathy. A
non-examining physician, Dr. Lateef, reviewed the Plaintiff’s records in 2008 and arrived at an
RFC of light duty with certain postural and environmental limitations. Dr. Lateef also noted that
Plaintiff’s complaints of back pain were “mostly credible,” without explication. The ALJ then
noted that records from the Allegheny Correctional health services confirmed Plaintiff’s chronic
back pain, and noted that he was taking Metformin and Neurontin, but “without indicating any
significant functional deficits resulting from any of these ongoing conditions.” He observed that
treatment for physical health impairments had been sparse since 2005, with few objective
findings or functional deficits. The ALJ also noted that Plaintiff’s overall credibility was

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adversely affected by his assault on his daughter and an expressed desire to murder his
grandparents.2
Following examination, Dr. Sella opined as follows:
[Plaintiff described a back injury at work in 2000]. He damaged he said L3,
L4, L5 and S1. He has pain in the back ever since. The clinical examination
today was entirely negative. No x-rays are available to document damage to the
disks. His story is credible. He is also quite deconditioned. He did not show any
myofascial problem or LS radiculopathy. However, he is credible….He needs
further investigation with regards to his low back pain in order to enable him or
the examiner to decide further on functional abilities.
Accordingly, Dr. Sella opined that further investigation was needed in terms of functional
abilities. The ALJ considered and accepted Dr. Sella’s opinion, but did not address the portion
of the report recommending “further investigation.” Moreover, both Dr. Sella and Dr. Lateef
stated that Plaintiff was credible. As the ALJ noted, subsequent records from Plaintiff’s
incarceration confirm back pain and treatment for that ailment, but do not address functional
impairments. The medical evidence of record confirms problems of the lumbar spine, such as
degenerative disc disease. Dr. Sella’s observation regarding the need for further investigation,
combined with Plaintiff’s pro se status and his incarceration,3 necessitate remand. In an
abundance of caution, this matter will be remanded in order for the ALJ to address whether
further investigation is required regarding Plaintiff’s back pain, and to conduct, obtain, or
facilitate such investigation if appropriate. Of course, if developments on remand call for a
reassessment of Plaintiff’s subjective complaints, or a revised hypothetical to the VE, the ALJ is
empowered to hold an additional hearing.

2

I note that some courts limit adverse credibility findings, if based on criminal history, to crimes involving moral
turpitude. See Albidrez v. Astrue, 504 F. Supp. 2d 814, 822 (C.D.Cal. 2007).
3
While Plaintiff does not aver that he was unable to obtain medical records while incarcerated, one might surmise
that he had less ready access to evidence during that time.

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I have considered the remainder of Plaintiff’s challenges, and find no isolated error in the
remainder of the record. If the ALJ’s determinations remain unchanged following remand, the
remainder of the record shall stand.
CONCLUSION
For the foregoing reasons, this matter will be remanded to ensure complete development of
the record as it pertains to Plaintiff’s back pain. An appropriate Order follows.
ORDER
AND NOW, this 13th day of March, 2014, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion for Summary Judgment is GRANTED, and Defendant’s
DENIED. This matter is remanded for further proceedings consistent with the foregoing
Opinion.
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose
Senior Judge, U.S. District Court

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