Opinion

FINKBONE v. BERRYHILL

Court
District Court, E.D. Pennsylvania
Filed
Dec 11, 2019
Cited by
0 cases
Authority
More cited than 28.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIAN FINKBONE, : CIVIL ACTION

Plaintiff :

v. :

:

ANDREW SAUL, :

Commissioner of the Social :

Security Administration, :

Defendant : NO. 19-361

MEMORANDUM

CAROL SANDRA MOORE WELLS

UNITED STATES MAGISTRATE JUDGE December 11, 2019

Brian Finkbone (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the

final decision of the Commissioner of the Social Security Administration (“the Commissioner”),

denying his claim for disability insurance benefits (“DIB”) and Supplemental Security Income

(“SSI”) under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of

his request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For

the reasons set forth below, Plaintiff’s request for review is denied and judgment is entered in favor

of the Commissioner.

I. PROCEDURAL HISTORY1

On September 24, 2015, Plaintiff applied for DIB and SSI, alleging disability, because of

physical and mental health impairments, since January 1, 2015. R. 10. The claim was denied,

initially, and Plaintiff requested a hearing. Id. On September 1, 2017, Plaintiff appeared before

Jasper J. Bede, Administrative Law Judge (“the ALJ”), for a video hearing;2 Plaintiff, who was

1 The court has reviewed and considered the following documents in analyzing this case: Plaintiff’s Brief and

Statement of Issues in Support of Request for Review (“Pl. Br.”), Defendant’s Response to Request for Review of

Plaintiff (“Resp.”), Plaintiff’s Reply Brief (“Reply”), and the administrative record. (“R.”).

2 Plaintiff was in Reading and the ALJ was in Elkins Park. R. 10.

represented by an attorney, and vocational expert Patricia Scutt (“the VE”) testified at the hearing.

R. 64-101. On January 11, 2018, the ALJ, using the sequential evaluation process for disability,3

issued an unfavorable decision. R. 10-22. The Appeals Council denied Plaintiff’s request for

review, on December 4, 2018, making the ALJ’s findings the final determination of the

Commissioner. R. 1-3. The parties have consented to this court’s jurisdiction, pursuant to 28

U.S.C. § 636(c)(1).

II. FACTUAL BACKGROUND

A. Personal History

Plaintiff, born on April 17, 1978, R. 21, was 40 years old when the ALJ rendered his

decision. He completed high school, R. 21, and worked as a cashier, assistant manager, kitchen

helper, and plastic press molder. R. 74-75. Plaintiff lives with his disabled mother. R. 59.

3 The Social Security Regulations provide the following five-step sequential evaluation for determining whether an

adult claimant is disabled:

1. If the claimant is working, doing substantial gainful activity, a finding of not

disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. §§ 404.1520(b),

416.920(b).

2. If the claimant is found not to have a severe impairment which significantly

limits his physical or mental ability to do basic work activity, a finding of not

disabled is directed. Otherwise proceed to Step 3. See 20 C.F.R. §§ 404.1520(c),

416.920(c).

3. If the claimant’s impairment meets or equals criteria for a listed impairment or

impairments in Appendix 1 of Subpart P of Part 404 of 20 C.F.R., a finding of

disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. §§ 404.1520(d),

416.920(d).

4. If the claimant retains the residual functional capacity to perform past relevant

work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20

C.F.R. §§ 404.1520(f), 416.920(f).

5. The Commissioner will determine whether, given the claimant’s residual

functional capacity, age, education and past work experience in conjunction with

criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. §§

404.1520(g), 416.920(g).

B. Plaintiff’s Testimony

At the September 1, 2017 video hearing, Plaintiff testified about his limitations. R. 41-73.

Plaintiff’s primary problem is pain and fatigue in his legs caused by diabetes, artery problems and

neuropathy. R. 53, 73. Plaintiff also suffers from anxiety and depression. R. 73. Plaintiff takes

a great deal of medication for his conditions. R. 54-57. Additionally, his doctor believes Plaintiff

suffers from COPD, but his insurance will not cover any medication for that condition. R. 58.

Plaintiff was not certain whether some of his symptoms were side-effects from his medications or

simply symptoms caused by his poor health. R. 67.

Plaintiff sleeps poorly and does not feel rested when awakening. R. 60-63, 66-67. He

typically retires at midnight but often cannot fall asleep for hours. R. 62-63. Because sleep comes

unpredictably, some days he awakens at 9:00 or 10:00 in the morning; on other days, he awakens

in the afternoon. R. 60, 62. Plaintiff does not intentionally nap, but, once or twice per month, he

dozes off unexpectedly. R. 67. When he is awake, Plaintiff spends a good deal of time sitting in

a chair with his legs propped up while he watches television. R. 63. While seated, he performs

breathing exercises to alleviate his anxiety and depression and stretching exercises for his calves.

Id.

Plaintiff testified that he could walk approximately two blocks without discomfort and

stand for approximately 45 minutes before the neuropathy in his left leg would cause excessive

pain. R. 72. He can sit for long stretches of time, so long as his legs are propped up. R. 73.

Plaintiff is able to dress and shower without assistance; however, when donning trousers

while standing, he needs to hold onto something for support. R. 68. He can grocery shop (once a

week), launder clothes, and wash dishes. R. 62, 68-69. Plaintiff’s mother cooks meals for both of

them. R. 61.

C. Vocational Testimony

The VE testified that Plaintiff’s past cashier job was medium,4 semi-skilled5 work, his

assistant manager positions were light6 and medium, skilled7 jobs (with non-transferrable skills)

and his plastic press molder job constituted light, unskilled8 work. R. 74-75. The ALJ asked the

VE to consider a person, limited to sedentary9 work, and unable to deal with the public or work

closely with others as part of a team. R. 76. The VE responded this person could not perform any

of Plaintiff’s past work, but could perform the following, unskilled jobs: (1) document preparer

(174,000 positions nationally); (2) pharmaceutical egg processor (300,000 position nationally);

and (3) circuit board layout taper (290,000 positions nationally). R. 76. The VE also stated that,

if the person was off-task as much as 20 percent of the time, he could not sustain competitive

employment. R. 77. The VE further testified that, for unskilled laborers, employers typically

tolerated seven to ten days of absences in the first year of employment. R. 77-78. Finally, the VE

testified that the three alternative positions she had identified could be performed, even if the

worker had to elevate his leg to knee level, since the jobs were performed in the seated position.

R. 78-79.

4 “Medium work involves lifting no more than 50 pounds with frequent lifting or carrying of weighing up to 25

pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c).

5 “Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. . . .

A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must

be moved quickly to do repetitive tasks.” 20 C.F.R. §§ 404.1568(b), 416.968(b).

6 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

7 “Skilled work requires qualifications in which a person uses judgment to determine the machine and manual

operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. . . .

Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.”

20 C.F.R. §§ 404.1568(c), 416.968(c).

8 “Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a

short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a).

9 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers and small tools.” 20 C.F.R, §§ 404.1567(a), 416.967(a).

III. THE ALJ’s FINDINGS

In his decision, the ALJ issued the following findings:

1. [Plaintiff] meets the insured status requirements of the Social

Security Act through June 30, 2018.

2. [Plaintiff] has not engaged in substantial gainful activity

since March 16, 2015, the alleged onset date (20 CFR

404.1571 et seq. and 416.971 et seq.).

3. [Plaintiff] has the following severe impairments: diabetes

mellitus type one with peripheral neuropathy, peripheral

arterial disease, chronic obstructi[ve] pulmonary disease (20

CFR 404.1520(c) and 416.920(c)).

4. [Plaintiff] does not have an impairment or combination of

impairments that meets or medically equals the severity of

one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, 416.926).

5. After careful consideration of the entire record, the

undersigned finds that [Plaintiff] has the residual functional

capacity to perform sedentary work as defined in 20 CFR

404.1567(a) and 416.9267(a) except [Plaintiff] would be

limited to unskilled work that would not require public

interaction or working closely with others.

6. [Plaintiff] is unable to perform any past relevant work (20

CFR 404.1565 and 415.965).

7. [Plaintiff] was born on April 17, 1978 and was 36 years old,

which is defined as a younger individual age 18-44, on the

alleged disability onset date (20 CFR 404.1563 and

416.963).

8. [Plaintiff] has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in this case

because [Plaintiff’s] past relevant work is unskilled (20 CFR

404.1568 and 416.968).

10. Considering [Plaintiff’s] age, education, work experience,

and residual functional capacity, there are jobs that exist in

significant numbers in the national economy that [Plaintiff]

can perform (20 CFR 404.1569, 404.1569(a), 416.969, and

416.969(a)).

11. [Plaintiff] has not been under a disability, as defined in the

Social Security Act, from January 1, 2015, through the date

of this decision (20 CFR 404.1520(g) and 416.920(g)).

R. 13, 15, 20-22.

IV. DISCUSSION

A. Standard of Review

Judicial review of the Commissioner’s final decision is as follows. The Commissioner’s

findings of fact will not be disturbed, if they are supported by substantial evidence. Poulos v.

Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Comm’r of Soc. Sec. Admin.,

181 F.3d 429, 431 (3d Cir. 1999). Substantial evidence is not “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 (1988) (internal quotation

omitted). It is more than a mere scintilla of evidence but may amount to less than an evidentiary

preponderance. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Brown v. Bowen, 845 F.2d

1211, 1213 (3d Cir. 1988). Overall, this test is deferential to the ALJ and the court should affirm

the ALJ’s findings of fact that are supported by substantial evidence, even when the court, acting

de novo, might have reached a different conclusion. Monsour Medical Center v. Heckler, 806 F.2d

1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987). Indeed, the court is not permitted

to weigh the record evidence itself. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). By

contrast, the Commissioner’s legal conclusions are subject to de novo review. Poulos, 474 F.3d

at 91; Schaudeck, 181 F.3d at 431.

B. Burden of Proof in Disability Proceedings

To be found “disabled” under the Act, Plaintiff must carry the initial burden of

demonstrating that he is unable to engage in “any substantial gainful activity by reason of any

medically determinable physical or mental impairment . . . which has lasted or can be expected to

last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

§§ 404.1505(a), 416.905(a). Plaintiff may establish a disability through: (1) medical evidence

meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P,

Appendix 1; or (2) proof that the impairment is severe enough that Plaintiff cannot engage in any

type of “substantial gainful work which exists in the national economy.” Heckler v. Campbell,

461 U.S. 458, 460 (1983); 42 U.S.C. § 423(d)(2)(A).

Under the first method, Plaintiff is considered per se disabled by meeting one of the “listed”

impairments. Heckler, 461 U.S. at 460. Under the second method, Plaintiff must initially

demonstrate that a medically determinable impairment prevents him from returning to his past

employment. See Brown, 845 F.2d at 1214. If Plaintiff proves that his impairment results in

functional limitations to performing his past relevant work, then the burden of proof shifts to the

Commissioner to prove that work does in fact exist in the national economy which Plaintiff can

perform given his age, education, work experience and residual functional capacity. See Hess v.

Comm’r Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Poulos, 474 F.3d at 92.

C. Review of the Administrative Law Judge’s Decision

Applying the sequential analysis process, the ALJ determined that, although Plaintiff could

not perform his past relevant work, he could perform other, sedentary, unskilled work that exists

in the national economy; hence, Plaintiff was not disabled. R. 10-22. Plaintiff challenges the

ALJ’s decision and argues that: (1) the ALJ’s assessment of his residual functional capacity

(“RFC”) was flawed, because the ALJ failed to identify medical sources to support each

component of his RFC determination; and (2) the ALJ failed to evaluate Plaintiff’s symptoms

properly. Pl. Br. at 5-9. The Commissioner denies Plaintiff’s assertions. Resp. at 5-13. This

court finds that the ALJ was not required to identify medical sources to support each component

of his RFC determination and he did not commit reversible legal error when evaluating Plaintiff’s

symptoms.

1. The ALJ Properly Evaluated Plaintiff’s RFC

Plaintiff argues that the ALJ did not have the authority to evaluate the components of

Plaintiff’s RFC on his own; instead, Plaintiff maintains that the ALJ was required to identify a

medical source to support each of his RFC findings. Pl. Br. at 5-6. Plaintiff’s argument is belied

by Third Circuit precedent. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011).

Indeed, the Third Circuit has explicitly rejected the notions that an ALJ (a) may not evaluate

medical evidence on his own and (b) make RFC determinations without outside medical support

for each of his specific RFC findings. Id. Hence, the ALJ acted properly, since evaluating

Plaintiff’s RFC was exclusively within his purview. See 20 C.F.R. §§ 404.1527(d)(2),

404.1546(c), 416.927(d)(2), 416.946(c).

2. The ALJ Properly Evaluated Plaintiff’s Symptoms

Plaintiff argues that the ALJ committed reversible legal error by rejecting several of

Plaintiff’s allegations concerning his symptoms, because they were “not entirely consistent with

the medical evidence and other evidence in the record.” Pl. Br. at 6 (quoting R. 17). Citing Seventh

Circuit authority, Plaintiff initially asserts that the ALJ applied the wrong legal standard and,

instead, the ALJ should have decided whether Plaintiff’s allegations concerning his symptoms

were supported by a preponderance of the evidence. Id. Plaintiff also asserts that the ALJ made

other errors when evaluating the evidence. Id. at 7-9.

Plaintiff’s first argument fails because, it ignores the standard of review this court must

apply when reviewing the ALJ’s fact-findings. The ALJ is required to review the relevant evidence

and, if there is substantial evidence to sustain his factual determinations, this court accepts his fact-

findings. See Poulos, 474 F.3d at 91 Substantial evidence is less than a preponderance. See

Fargnoli, 247 F.3d at 38. Plaintiff also suggests that the ALJ violated Social Security Ruling

(“SSR”) 16-3p when evaluating his symptoms. See Pl. Br. at 7. However, this is incorrect. The

ALJ cited SSR. 16-3p in his decision, R. 16, and applied it by reviewing the medical evidence and

other evidence in the record, when evaluating Plaintiff’s symptoms. R. 16-20. This is precisely

what SSR 16-3p requires. See SSR 16-3p, 2016 WL 1119029, at *4-*7.

Next, Plaintiff complains that the ALJ should not have noted that, in May 2016, Plaintiff

was able to walk one mile without stopping. Pl. Br. at 7. However, the ALJ also noted that, in

January and May 2017, Plaintiff informed his treating sources that he was unable to walk that

distance. R. 18. Acknowledging all of this evidence when evaluating Plaintiff’s symptoms was

the ALJ’s duty. See SSR 16-3p, 2016 WL 1119029, at *5.

Plaintiff also complains that the ALJ noted that he continued to smoke. Pl. Br. at 8 (citing

R. 18). However, the ALJ noted Plaintiff’s continued smoking (at R. 19, not R. 18, as Plaintiff

asserts) in the course of explaining why Plaintiff was limited to sedentary work. R. 19. Since

sedentary work is the lowest level of exertion and Plaintiff’s past relevant work was medium or

light, R. 74-75, Plaintiff’s disability claim was not harmed in any way by the ALJ noting that he

still smoked and, thereafter, lowering the exertion level of acceptable jobs for him.

Additionally, Plaintiff complains that the ALJ failed to consider his allegations of difficulty

concentrating and problems sitting, walking and lifting. Pl. Br. at 8. Plaintiff’s complaint is belied

by the record; the ALJ explicitly mentioned these allegations – along with Plaintiff’s alleged

difficulty squatting, reaching, bending, kneeling and climbing stairs – in his decision. R. 16.

Further, the ALJ accommodated Plaintiff’s symptoms – to the extent he found them consistent

with other evidence in the record – by finding that Plaintiff’s RFC allowed him to perform only

unskilled, sedentary work.10 R. 20.

Finally, Plaintiff complains that the ALJ failed to consider properly Plaintiff’s prior

statements about what daily activities he could perform. Pl. Br. at 8-9. Again, this complaint is

belied by the record, because the ALJ specifically noted that Plaintiff had alleged difficulty

dressing and showering, being limited to preparing simple meals – because he could not stand for

a long period of time – being unable to perform yard work, and having difficulty lifting, squatting,

bending, reaching, walking, sitting, kneeling, and climbing stairs. R. 16. Moreover, the ALJ

summarized Plaintiff’s testimony about his limitations, in which Plaintiff acknowledged that he

could sit without difficulty, so long as his feet were propped up. R. 16. The ALJ considered all

of this evidence, as well as the medical evidence, to determine Plaintiff’s RFC. See R. 17-20. This

is what the ALJ was required to do by SSR 16-3p. See SSR 16-3p, 2016 WL 1119029, at *4-*7.

Hence, there is simply no basis to find that the ALJ committed reversible error.

V. CONCLUSION

Review of the relevant law and the record indicate that Plaintiff’s assertions of error lack

merit. Accordingly, his Request for Review is denied. An implementing Order and Order of

Judgment follow.

10 In addition, when determining whether Plaintiff met a mental impairment listing, the ALJ found that Plaintiff’s

ability to concentrate was only mildly limited. R. 14.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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