WARREN v. COLVIN

Filing 16

MEMORANDUM AND ORDER OF COURT granting 11 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is reversed and this case is remanded to the Commissioner for further proceedings. Signed by Judge Gustave Diamond on 9/9/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYL VANIA

BENJAMIN W. WARREN,
Plaintiff,

v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

)

)

)

)

)
)
)
)
)
)
)

Civil Action No. 15-672

MEMORANDUM AND ORDER OF COURT
AND NOW, this

9 ~ay of September, 2016, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiffs 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 plaintiffs motion for
summary judgment (Document No. 11) be, and the same hereby is, granted and the
Commissioner's motion for summary judgment (Document No. 13) be, and the same hereby is,
denied. The Commissioner's decision of November 15, 2013, will be reversed and this case will
be remanded to the Commissioner for further proceedings consistent with this opinion pursuant to
sentence 4 of 42 U.S.C. §405(g).

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 evidence.
"Substantial evidence has been defined as 'more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate.'" Plummer v. Apfel, 186 F.3d 422, 427
'IIo.A072
(Rev, 8/82)

(3d Gr. 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 eval uating 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 January 26, 2012, and April 1,2012, respectively, both alleging
a disability onset date of December 16, 2009,1 primarily due to left side paralysis, neuropathy and
a left ankle condition. Plaintiffs applications were denied initially. At plaintiffs request an ALJ
held a hearing on October 18, 2013, at which plaintiff, represented by counsel, appeared and
testified. On November 15,2013, the ALJ issued a decision finding that plaintiff is not disabled.
On March 27, 2015, the Appeals Council denied review making the ALJ's decision the final
decision of the Commissioner.
Plaintiff was 36 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 at least a high
school education and has past relevant work experience as a pizza delivery person, but he has
not engaged in any substantial gainful activity since his alleged onset date.

Because plaintiffhad acquired sufficient coverage to remain insured only through December 31,
2013, the relevant time period for purposes of plaintiff s Title II application is the alleged onset date of
December 16, 2009, through the date last insured of December 31,2013, and plaintiff bears the burden of
showing he became disabled during that time period.
1

"1!aA072
(Rev. 8/82)

- 2 ­

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 status-post traumatic brain injury, left sided
spastic hemiplegia,2 left extremity neuropathy and paralysis, chronic pain syndrome, arthritis,
left shoulder-elbow-wrist-hand contractures,3 left hand thumb deformity and status-post left
hand tendon lengthening and joint manipulation, those impairments, alone or in combination,
do not meet or medically equal the criteria of any ofthe impairments listed at Appendix 1 of20
C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to engage in
work at the sedentary exertional level but with numerous restrictions necessary to
accommodate his impairments. 4 Taking into account these restrictions, a vocational expert
identified numerous categories ofjobs which plaintiff can perform based upon his age,
education, work experience and residual functional capacity, including call out operator,
machine tender and surveillance system monitor. Relying on the vocational expert's testimony,
the ALJ found that although plaintiff cannot perform his past relevant work, he nevertheless is

2

"Hemiplegia" is paralysis of one side of the body. http://www.oed.com

A "contracture" is a condition of persistent contraction and rigidity in the muscles or the joints.
http://www.oed.com
3

4 Specifically, the AU found that plaintiff can perform sedentary work "except he can never climb
a ladder, rope, or scaffold; can never crawl; can make no use of his non-dominant hand and arm, but with
no dominant lim itation; only occasionally push, pull, or operate foot controls with the left lower extremity,
but with no right lower extremity limitation: can only occasionally climb ramps and stairs: can only
occasionally balance, stoop, kneel, or crouch; will require a sit-stand option, at the work station, with
intervals no more frequent than every thirty minutes; and must avoid all exposure to unprotected heights,
dangerous machinery, and like workplace hazards." (R. 24-25).

Il\l>A072
(Rev. 8182)

-

3 ­

capable of making an adjustment to numerous jobs existing in significant numbers in the
national economy. Accordingly, the ALJ concluded that plaintiff is not disabled under 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 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.5 20 C.F.R.
§§404.1520 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).
Here, plaintiffs only challenge is to the ALJ's step 3 finding that plaintiffs
impairments caused by his traumatiC brain injury do not meet or equal Listing 11.04.
Specifically, plaintiff contends that the ALJ erroneously interpreted that listing to require
deficits on both the left and right side of his body. Upon review, the court agrees that the
ALJ's step 3 finding appears to be based on an erroneous assumption as to the requirements of
Listing 11.04. Accordingly, this case will be remanded to the ALJ for additional evaluation.

The AU must determine: (l) 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).
5

'Aon
(Rev. 8/82)

-

4

­

At step 3, the ALJ must determine whether the claimant's impairment matches, or is
equi valent to, one of the listed impairments. Burnett v. Commissioner of Social Security
Administration, 220 F .3d 112, 119 (3d Cir. 2000). The listings describe impairments that
prevent an adult, regardless of age, education, or work experience, from performing any gainful
activity. Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000); 20 C.F.R. §§404.1520(d) and
416.920(d). "If the impairment is equivalent to a listed impairment then [the claimant] is per se
disabled and no further analysis is necessary." Burnett, 220 F 3d at 119.
The burden is on the ALJ to identify the relevant listed impairment in the federal
regulations that compares with the claimant's impairment. Id. at 120 n.2. The ALJ must "fully
develop the record and explain his findings at step 3, including an analysis of whether and why
[the claimant's] ... impairments ... are or are not equivalent in severity to one of the listed
impairments." Id.
Here, the ALJ correctly identified 11.04 as the listing corresponding to plaintiff's
impairments arising from his traumatic brain injury.6 That listing is met when the claimant
experiences, more than 3 months post-accident, either "sensory or motor aphasia resulting in
ineffective speech or communication" or "[s]ignificant and persistent disorganization of motor
function in two extremities, resulting in sustained disturbance of gross and dexterous
movements, or gait and station (see 11.00C).,,7

6 The guidelines for evaluating impainnents caused by cerebral trauma arising from a traumatic
brain injury are contained in Listing 11.18. See 20 C.F.R., subpart P, Appendix 1, § 11.00F. Pursuant to
Listing 11.18, cerebral trauma is to be evaluated under 11.02, 11.03, 11.04, and 12.02, as applicable. Here,
the deficits arising from plaintiff s traumatic brain injury most closely correspond to the criteria of 11.04.
7 Section 11.00C provides that "persistent disorganization of motor function" may take the fOlin
of "paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or
all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction)
which occur singly or in various combinations" and instructs that "the assessment of impainnent depends
on the degree of interference with locomotion and/or interference with the use offingers, hands and anns."

'l1lIA072
(Rev 8/82)

5 ­

The ALl found that plaintiff does not meet Listing 11.04 because his "disorganization
of motor function affects only his left sided extremities and has not resulted in sustained
disturbance of gross and dexterous movements, or gait and station." (R. 24). The only stated
rationale behind the ALl's finding is that plaintiff "has remained largely independent and has
engaged in a wide range of activities despite his impairments." (lQ.)
The court finds that the ALJ's step 3 analysis in this case fails to withstand substantial
evidence scrutiny. First, the ALl inaccurately seems to suggest that plaintiff does not meet the
listing because his disorganization of motor functioning "affects only his left sided
extremities." As plaintiff aptly points out, however, Listing 11.04 requires only significant and
persistent disorganization of motor function in two extremities, and it does not matter if both of
those extremities are on the same side of the body. Moreover, the ALJ's analysis also is
conclusory and essentially just parrots the language of the remainder of the listing in stating
that plaintiffs impairments have not "resulted in sustained disturbance of gross and dexterous
movements, or gait and station."
It is indisputable in this case that plaintiff does not have significant and persistent
disorganization of motor functioning in either of his right extremities. It also is beyond dispute
that plaintiff does have significant and persistent disorganization of motor functioning in his
left upper extremity that results in sustained disturbance in gross and dexterous movements
with his left hand. The only questions then are whether he also has such disorganization of
motor functioning in his left lower extremity and, if so, whether it results in sustained
disturbance of gait and station.
The court simply cannot tell from the ALJ's decision what his answers to those
remaining questions were. It is plausible that his step 3 finding incorrectly assumed that
"""Aon
{Rev.8/82}

- 6 ­

plaintiff cannot meet Listing 11.04 simply because his disorganization of motor functioning
was solely on his left side. It also is plausible that he may have been acknowledging that
plaintiff does have such disorganization of motor functioning in both his left upper and left
lower extremities, but nevertheless that he does not meet the listing because his lower left
extremity disorganization of motor functioning does not result in sustained disturbance in gait
or station. This court cannot undertake meaningful judicial review when it cannot decipher
which of these two possible findings the ALJ actually was trying to make.
Clarity also cannot be found in the remainder of the ALJ's decision either. For
instance, while the ALJ found plaintiff to have the severe impairments of "left-sided spastic
hemiplegia and left extremity neuropathy and paralysis," (R. 23), and acknowledged plaintiffs
"well-documented history of remote motor vehicle accident and resulting loss of function in his
left upper and lower extremities," (R. 25-26), later in the decision he found only that "the
evidence does not show that [plaintiff] is unable to perform work that does not involve use of
his left arm."
However, there is objective medical evidence indicating that plaintiffs left-sided
difficulties were not limited to his left upper extremity. Dr. Ramachandra Tata, the neurologist,
diagnosed plaintiff with left spastic hemiplegia and left-sided neuropathic pain, and also noted
an unsteady gait. (R.267-69). Dr. Sheila Burick, plaintiffs treating physician, reported leftsided weakness. (R. 319). Dr. Kenneth Molinero, an orthopedist, also examined plaintiff and

found left-sided deficiencies. (R. 348-49).
In Jones v. Barnhart, 364 F.2d 501, 505 (3d Cir. 2004), the court explained that "the
function of Bumett is to ensure that there is sufficient development of the record and
explanation of findings to permit meaningful review." Here, the court finds that the ALJ's
~A072

(Rev 8/82)

- 7 ­

explanation of his step 3 finding is inadequate to explain why plaintiff does not meet Listing
11.04. Because the ALJ failed to adequately explain his step 3 finding, that finding is not
supported by substantial evidence, and this case must be remanded to the Commissioner for
additional explanation.
On remand, the ALJ must make clear findings as to whether plaintiff has significant and
persistent disorganization of motor functioning in his left lower extremity. If the ALJ
concludes that he does, then he must make a clear finding as to whether that significant and
persistent disorganization of motor functioning results in sustained disturbance of gait and
station.
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.

~~
Gustave Diamond
United States District Judge

cc:

Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller PLLC
6000 North Bailey Avenue, Ste. lA
Amherst, NY 14226
Colin Callahan

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

~A072

(Rev. 8/82)

8 ­