Erbe v. Comm'r of Soc. Sec. of United States

RICHARD EDWARD ERBE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY of the United States of America, Defendant.

Civil Action No. 3:20-cv-02132

United States District Court, M.D. Pennsylvania

April 13, 2022

MEMORANDUM

JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

In this matter, the plaintiff, Richard Edward Erbe, seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits, pursuant to 42 U.S.C. § 405(g). The matter has been referred to the undersigned United States magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

I. Background

On April 16, 2018, Erbe protectively filed an application for disability insurance benefits, asserting a disability onset date of December 26, 2012. His application was initially denied by state agency reviewers on September 26, 2018. The plaintiff then requested an administrative hearing.

A hearing was subsequently held on July 9, 2019, before an administrative law judge, Mike Oleyar (the “ALJ”). In addition to the plaintiff himself, the ALJ received testimony from an impartial vocational expert Agnes Gallen. The plaintiff was represented by counsel at the hearing.

On August 30, 2019, the ALJ denied Erbe's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Erbe was not disabled under the Social Security Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Erbe had not engaged in substantial gainful activity during the period between his alleged disability onset date, December 26, 2012, and his date last insured, March 31, 2017.^[1] At step two, the ALJ found that Erbe had the severe impairments of: traumatic brain injury; post concussion syndrome with post traumatic headaches; cervical and thoracic degenerative disc disease; history of cervical fusion; cervical radiculopathy; post laminectomy syndrome; occipital neuralgia; cervicalgia; paresthesia of bilateral extremities; and a history of spinal fractures. At step three, the ALJ found that Erbe did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Between steps three and four of the sequential-evaluation process, the ALJ assessed Erbe's residual functional capacity (“RFC”). See generally Myers, 373 F.Supp.3d at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Erbe had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), ^[2] with the following limitations:

[H]e requires an option to alternate his position from sitting to standing every thirty (30) minutes. He is limited to frequent stooping, kneeling, crouching, crawling, climbing ramps and stairs, and handling, fingering, and feeling with his bilateral upper extremities and only occasional balancing, but can never reach overhead with his bilateral upper extremities or climb on ladders, ropes, or scaffolds. The claimant can also never operate a motor vehicle and must avoid all exposure to atmospheric conditions, extreme cold and heat, wetness, humidity, vibration, and hazards, such as unprotected heights and dangerous moving mechanical parts. He is capable of performing work involving simple, routine tasks in an environment with no more than a moderate noise level.

(Tr. 19.)

In making these factual findings regarding Erbe's RFC, the ALJ considered his symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive he found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 404.1520c.

At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that Erbe was unable to perform his past relevant work as actually and generally performed.

At step five, the ALJ concluded that Erbe was capable of performing other work that exists in significant numbers in the national economy. Based on his age, education, work experience, and RFC, and based on testimony by the vocational expert, the ALJ concluded that Erbe was capable of performing the requirements of representative occupations such as: survey worker (DOT # 205.367-054), order clerk (DOT # 209.567014), or document prep person (DOT # 249.587-018). Based on this finding, the ALJ concluded that Erbe was not disabled for Social Security purposes.

The plaintiff sought further administrative review of his claims by the Appeals Council, but his request was denied on September 14, 2020, making the ALJ's August 2019 decision the final decision of the Commissioner subject to judicial review by this court.

The plaintiff timely filed his complaint in this court on November 16, 2020. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.

II. Discussion

Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability insurance benefits and supplemental security income administrative decisions).

Erbe asserts on appeal that the ALJ's decision is not supported by substantial evidence because: (1) the ALJ erred at step three in finding that he did not have an impairment or combination of impairments that met the “B paragraph” criteria of Listed Impairment 11.18, concerning traumatic brain injury; (2) the ALJ failed to properly evaluate prior administrative findings, including the medical opinions of a state agency medical consultant; (3) the ALJ failed to properly evaluate the medical opinions of a treating physician; and (4) viewed in whole, the evidence of record supported a finding of disability.

A. Listing 11.18B

The plaintiff initially suffered a traumatic brain injury as a result of a motor vehicle collision in 2001. He suffered a second traumatic brain injury in a slip and fall accident in 2012. As a result of these cumulative traumatic brain injuries, Erbe argues that the ALJ should have found him disabled at step three of the five-step evaluation process.

But mere diagnosis of a listed impairment is insufficient to establish disability. See 20 C.F.R. § 404.1525(d) (“Your impairment(s) cannot meet the criteria of a listing based only on a diagnosis. To meet the requirements of a listing, you must have a medically determinable impairment(s) that satisfies all of the criteria in the listing.”). A claimant bears the burden of establishing each element of a Listing, or ‘all of the criteria in the listing.' If even one element is not satisfied, then the ALJ has substantial evidence to conclude that the claimant's impairment is not equivalent and does not meet a Listing.” Weidman v. Colvin, 164 F.Supp.3d 650, 659 (M.D. Pa. 2015) (quoting 20 C.F.R. § 404.1525(d)); see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).

At step three, the ALJ found that Erbe did not satisfy the criteria of any of the listings. In particular, the ALJ considered listing 11.18, concerning traumatic brain injury. With respect to this listing, the ALJ stated:

This listing requires disorganization of motor function in two (2) extremities resulting in an extreme limitation in the ability to stand from a seated position, balance while standing or walking, or use of the upper extremities OR a marked limitation in physical functioning and in an area of mental functioning. The medical evidence of record shows that the claimant has an unsteady gait, but ambulates effectively and although there is evidence of decreased sensation, he utilizes his upper extremities; there is no indication that his limitations rise to the level of requisite disorganization. Further, the claimant's conditions do not cause marked physical or mental limitations. The claimant remains independent in his self-care, ambulates, and while some reference to decreased concentration is noted, he reported that he can make simple meals and perform word find puzzles.

(Tr. 19.) Based on this, the ALJ concluded that the record did not “establish the medical signs, symptoms, laboratory findings or degree of functional limitation required to meet or equal the criteria of any listed impairment.” (Id.)

Listed Impairment 11.18 may be established by satisfying either the “Paragraph A” criteria or the “Paragraph B” criteria set forth in Section 11.18 of the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.18. As set forth in the Listing of Impairments, these criteria are:

A. Disorganization of motor function in two extremities resulting in an extreme limitation in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the injury; or

B. Marked limitation in physical functioning, and in one of the following areas of mental functioning, persisting for at least 3 consecutive months after the injury:

1. Understanding, remembering, or

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