Meloni v. Colvin

109 F.Supp.3d 734

Karen A. Meloni, Plaintiff,

v.Carolyn Colvin, Commissioner of Social Security, Defendant.

Civil Action No. 4:14–CV–397

United States District Court, M.D. Pennsylvania.

Filed July 2, 2015

David F. Chermol, Chermol & Fishman, Philadelphia, PA, for Plaintiff.

G. Michael Thiel, U.S. Attorney's Office, Scranton, PA, for Defendant.

ORDER

Matthew W. Brann, United States District Judge

AND NOW, this 2nd day of July 2015, having reviewed the thorough report and recommendation of Magistrate Judge Gerald B. Cohn and the letter from the Commissioner waiving the opportunity to object, the report and recommendation of the Magistrate Judge is ADOPTED. March 27, 2015, ECF No. 16. The decision of the Commissioner is VACATED and REMANDED.

The Clerk is directed to close the case file.

REPORT AND RECOMMENDATION

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Karen A. Meloni for supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§ 401 –433, 1382 –1383 (the "Act"). In this case, the administrative law judge ("ALJ") determined that Plaintiff was not disabled because she was able to perform other work in the national economy pursuant to testimony from a vocational expert ("VE"). However, the testimony of the VE with regard to every position identified conflicted with the Dictionary of Occupational Titles ("DOT"). Social Security Ruling ("SSR") 004–p provides that ALJ's have "an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will ask the VE or VS if the evidence she has provided conflicts with information provided in the DOT." Id. Social Security Rulings are binding on the ALJ. 20 C.F.R. § 402.35(b)(1). However, the ALJ in this case did not ask the VE whether the VE testimony conflicted with the DOT. Thus, the conflict between the VE testimony and the DOT was unresolved. Where there is an apparent, unresolved conflict between the VE testimony and the DOT with regard to every position identified by the VE, the ALJ's determination that a claimant can perform other work in the national economy lacks substantial evidence. Boone v. Barnhart, 353 F.3d 203 (3d Cir.2003). As a result, the Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings.

II. Procedural Background

On September 2, 2009, Plaintiff filed an application for SSI and DIB under the Act. (Tr. 137–48). On March 17, 2011, the Bureau of Disability Determination denied these application (Tr. 76–80), and Plaintiff filed a request for a hearing on May 5, 2011. (Tr. 102–03). On July 5, 2012, an ALJ held a hearing at which Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 41–75). On August 17, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 12–40). On September 27, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 10–11), which the Appeals Council denied on November 11, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 5–9).

On March 4, 2014, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On May 9, 2014, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 10, 11). On June 23, 2014, Plaintiff filed a brief in support of her appeal ("Pl. Brief"). (Doc. 12). On July 28, 2014, Defendant filed a brief in response ("Def. Brief"). (Doc. 13). On August 8, 2014, Plaintiff filed a brief in reply. (Doc. 14). On November 5, 2014, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir.2008). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.2004). Substantial evidence "does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence is "less than a preponderance" and requires only "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).

IV. Sequential Evaluation Process

To receive disability or supplemental security benefits, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 423(d)(1)(A) ; 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that he has a physical or mental impairment of such a severity that:

He 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A) ; 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520 ; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.1993). The ultimate burden of proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A) ; 20 C.F.R. § 416.912(a).

V. Relevant Facts in the Record

Plaintiff was born on September 3, 1964 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 31). Plaintiff has at least a high school education and past relevant work as a tax preparer, retail clerk, and office assistant. (Tr. 31). Plaintiff worked from the years 1994 to 2000 and 2002 to 2005. (Tr. 197). In 2008 and 2009, she worked from January through April as a tax preparer. She alleges disability as of April 15, 2009, when she last worked as a tax preparer. (Tr. 197).

A. Physical Impairments

On April 29, 2008, Plaintiff complained to Dr. Rodrigo Tanchano, M.D., her primary care physician, of recurrent back pain and numbness and tingling in her hands. (Tr. 511). She reported that her arm was painful. (Tr. 511). On May 2, 2008, a preliminary EMG report indicated bilateral cervical radiculopathy with no other abnormality. (Tr. 527). The report recommended following-up with an MRI. (Tr. 257). On May 12, 2008, Plaintiff continued to complain of moderate to marked back pain that arose gradually over the previous days. (Tr. 515). She had "no previous workup for this problem." (Tr. 515). Plaintiff had reduced range of motion, tenderness, and a slow gait. (Tr. 516). Dr. Tanchano prescribed Vicodin and referred Plaintiff to physical therapy. (Tr. 516). Radiology studies in 2008 and 2009 indicated "central disc protrusion at L5–S1 causing mild canal stenosis," "moderate decreased disc space at L5–S1," "dark disc disease," and "indentation on the cervical cord." (Tr. 265, 281–82).

In September of 2009, Plaintiff was referred to pain management with Jie Zhu, M.D. (Tr. 274). Plaintiff treated with Dr. Zhu for pain management from October 2009 through May 2012 (Tr. 306–14, 579–86, 627–61, 715–97). Plaintiff obtained some relief from pain medications and injections. (Tr. 299, 328–29, 640, 644–45, 647, 715, 717, 760–62, 767–68,774–75). She denied side effects from medications. (Tr. 628, 632–33, 636, 642, 650, 717, 721, 725, 729, 739, 743, 747, 751, 755, 762, 769, 776, 783, 788, 793). Dr. Zhu noted only tenderness on examinations. (Tr. 309, 313, 620–21, 625, 630–31, 634–35, 638–39, 644–45, 651–52, 718–19, 723, 726–27, 731, 737, 741, 745, 749–50, 753–54, 757–58, 764–65, 771–72, 779, 786, 791, 796–97). In March 2011 and June 2012, Dr. Zhu issued opinions...