NELSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION and ORDER granting 10 Motion for Summary Judgment; denying 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 8/2/16. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JERRY P. NELSON, JR.,
Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 15-755
AMBROSE, Senior District Judge
OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
12). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11, 13 and 16). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am granting Plaintiff’s Motion for Summary Judgment (ECF No. 10) and denying
Defendant’s Motion for Summary Judgment. (ECF No. 12).
I.
BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security (ACommissioner@) denying his application for disability insurance benefits (“DIB”)
pursuant to the Social Security Act (AAct@).
Administrative Law Judge (“ALJ”), Regina
Carpenter, held two hearings: One on July 12, 2013 (ECF No. 8-3, pp. 2-21) and one on
August 19, 2013. (ECF No. 8-2, pp. 30-79). Plaintiff was unrepresented at both hearings.1 On
December 12, 2013, the ALJ found that Plaintiff was not disabled under the Act. (ECF No. 8-2,
pp. 13-24).
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Plaintiff notes that he was unrepresented at the hearings and, as such, the alleged errors in this case
should be viewed in light of the ALJ’s heightened duty. (ECF No. 11, p. 4). To be clear, however, Plaintiff
is not challenging the validity of his waiver of the right to representation, nor does Plaintiff point to any
particular inquiry that the ALJ failed to conduct. (ECF No. 11, pp. 4-5). As a result, the issue is not
before me and I decline to engage in such a review.
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 10 and 12).
The issues are now ripe for review.
II.
LEGAL ANALYSIS
A.
Standard of Review
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as Amore than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.@ Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).
Additionally, the Commissioner=s findings of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. '405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A
district court cannot conduct a de novo review of the Commissioner=s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a court is bound by those findings, even if
the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. '404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
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whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he 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. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.
Residual Functional Capacity (“RFC”) 2
Plaintiff contends that the ALJ erred in “classifying [his] RFC as one for ‘light work’ while
simultaneously limiting him to standing/walking for 2 hours in an 8-hour workday and not
performing any pushing/pulling with his upper and lower extremities.” (ECF No. 11, pp. 6-8). To
that end, Plaintiff submits that the proper classification of Plaintiff’s RFC is sedentary when his
borderline age is properly considered. (ECF No. 11, pp. 8-14). As a result, Plaintiff argues that
remand is necessary. Id.
In this case, the ALJ found that Plaintiff has the following RFC:
To perform a range of work activity that: requires no more than a light level of
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RFC refers to the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a). The assessment must be based upon all of the relevant evidence, including the medical
records, medical source opinions, and the individual’s subjective allegations and description of his own
limitations. 20 C.F.R. § 416.945(a).
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physical exertion; requires lifting of no more than 10 pounds frequently and up to
50 pounds occasionally; requires standing/walking of no more than 2 hours a day
and can sit no more than 6 hours a day; affords the option to change position
briefly for 1-2 minutes at least every 30 minutes; requires no pushing or pulling
with the upper or lower extremities; requires no crouching, crawling, kneeling,
balancing, or climbing stairs, ramps, ladders, ropes or scaffolds; requires no
more than occasional stooping; requires no more than frequent use of the hands
for handling and fingering’ avoids exposure to extreme cold or exposure to
extreme heat and cold, wetness and humidity, vibration, and respiratory irritants;
and is limited to simple, routine and repetitive instructions and tasks in an
environment with no more than moderate background noise, such as you would
find in an office, department store, mall, or outdoor setting with no machinery or
constant traffic.
(ECF No. 8-2, p. 17). Thereafter, the ALJ recognized that when a plaintiff “cannot perform
substantially all of the exertional demands of work at a given level and/or has nonexertional
limitations, the medical-vocational rules are used as a framework….” (ECF No. 8-2, p. 23). In
such instances, the applicable regulation at issue is SSR 83-12. SSR 83-12 discusses the
framework for evaluating exertional limitations within a range of work or between ranges of
work, and provides:
Where an individual exertional RFC does not coincide with the definitions of any
one of the ranges of work as defined in sections 404.1567 and 416.967 of the
regulations, the occupational base is affected and may or may not represent a
significant number of jobs in terms of the rules directing a conclusion as to
disability. The adjudicator will consider the extent of any erosion of the
occupational base and access its significance. In some instances, the restriction
will be so slight that it would clearly have little effect on the occupational base. In
cases of considerably greater restriction(s), the occupational base will obviously
be affected. In still other instances, the restrictions of the occupational base will
be less obvious.
Where the extent of erosion of the occupational base is not clear, the adjudicator
will need to consult a vocational resource.
SSR 83-12.
Here, the ALJ acknowledged that Plaintiff’s “ability to perform all or substantially all of
the requirements of these levels of [light] work has been impeded by additional limitations.”
(ECF No. 8-2, p. 23). As a result, she specifically sought testimony from a vocational expert
(“VE”) to determine the extent to which the limitations eroded the “unskilled light and sedentary
occupational bases.” Id.; ECF No. 8-2, 23, pp. 71-76.
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Plaintiff argues, however, the ALJ failed to address Plaintiff’s borderline age situation.
(ECF No. 11, pp. 8-14; No. 16, pp. 1-4). Age is a vocational factor to be considered by the ALJ.
The regulations provide as follows:
(d)
Person approaching advanced age. If you are closely approaching
advanced age (50-54), we will consider that your age, along with a severe
impairment and limited work experience, may seriously affect your ability to
adjust to other work.
20 C.F.R. § 404.1563. The regulations further provide that in borderline cases, age categories
should not be applied mechanically. 20 C.F.R. §404.1563(b). “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.” Id.
Here, Plaintiff was six months shy of his 50th birthday as of the date of the decision.
(ECF No. 8-2, p. 22). Additionally, he was already 50 at the time of the Appeals Council denied
his request for review. (ECF No. 8-2, pp. 2-7). The ALJ mechanically applied Plaintiff’s age at
the time of the hearing, without consideration of whether using the older age category would
result in a determination or decision that Plaintiff was disabled. See, ECF No. 8-2, pp. 13-24.
Thus, neither the ALJ, nor the VE, considered such impact on Plaintiff’s ability to adjust to other
work. I am not saying there will be a shift in the results. Rather, I am saying that the ALJ
should not have applied the age categorization in a mechanical manner. Consequently, remand
is warranted on this basis. See, Lucas v. Barnhart, 184 Fed.App’x 204, 206-08 (3d Cir. 2006);
McElroy v. Comm.’r Of Soc. Sec., Civ. No. 15-326, 2015 WL 8784604, at *6-7 (W.D. Pa.
December 15, 2015); Istik v. Astrue, Civ. No. 07-1468, 2009 WL 382503 (W.D. Pa. Feb. 13,
2009) (Mere mention of a plaintiff’s age was not enough to show that ALJ conducted a
borderline age analysis when plaintiff was seven month from a higher age category).
An appropriate order shall follow.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JERRY P. NELSON, JR.,
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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 15-755
AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 2nd day of August, 2016, it is ordered that Plaintiff=s Motion for
Summary Judgment (Docket No. 10) is granted and Defendant=s Motion for Summary Judgment
(Docket No. 12) is denied.
It is further ordered that the decision of the Commissioner of Social Security is hereby
vacated and the case is remanded for further administrative proceedings consistent with the
foregoing opinion.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
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