Bisceglia v. Colvin

• Decision Date: 25 March 2016
• Docket Number: CIVIL NO. 3:15cv83 (JRS)
• Citation: 173 F.Supp.3d 326
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Gina M. Bisceglia, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

173 F.Supp.3d 326

Gina M. Bisceglia, Plaintiff,

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

CIVIL NO. 3:15cv83 (JRS)

United States District Court, E.D. Virginia, Richmond Division .

Signed March 25, 2016

Robert Wayne Gillikin, II, Rutter Mills LLP, Norfolk, VA, David F. Chermol, Chermol & Fishman LLC, Philadelphia, PA, for Plaintiff.

Laura Margaret Harker, United States Attorney's Office, Richmond, VA, for Defendant.

FINAL ORDER

James R. Spencer, Senior United States District Judge

Having reviewed the REPORT AND RECOMMENDATION of the Magistrate Judge entered herein on February 19, 2016 (ECF No. 21), Defendant's OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (ECF No. 22), Plaintiff's REPLY TO DEFENDANT'S OBJECTIONS (ECF No. 23), and having considered the record and the REPORT AND RECOMMENDATION and finding no error therein, it is hereby ORDERED that:

(1) The Report and Recommendation (ECF No. 21) is ADOPTED as the opinion of this Court.

(2) Plaintiff's Motion for Summary Judgment (ECF No. 12) is GRANTED.

(3) Defendant's Motion for Summary Judgment (ECF No. 14) is DENIED.

(4) The final decision of the Commissioner is VACATED and REMANDED.

Let the Clerk of the Court send a copy of this Order to Plaintiff and all counsel of record.

It is so ORDERED.

REPORT AND RECOMMENDATION

David J. Novak, United States Magistrate Judge

On December 5, 2011, Gina Marie Bisceglia (“Plaintiff”) applied for Social Security Disability Benefits (“DIB”) and, on December 29, 2011, for Supplemental Security Income (“SSI”) under the Social Security Act (“Act”), alleging disability from fractured ribs, cataracts, pancreatitis, knee problems, hepatitis C, cirrhosis of the liver, feet problems, enlarged liver/spleen, breast cancer and anemia, with an alleged onset date of March 15, 2010. The Social Security Administration (“SSA”) denied Plaintiff's claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge (“ALJ”) denied Plaintiff's claims in a written decision and the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner.

Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred, because the ALJ's residual functional capacity (“RFC”) findings contradict the SSA's policies and regulations, or in the alternative, because he violated the SSA's Program Operations Manual System (“POMS”) DI 25025.015(D). (Pl.'s Br. in Supp. of Pl.'s Mot. lor Summ. J. (“Pl.'s Mem.”) (ECF No. 13) at 2–7.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, rendering the matter now ripe for review.¹ For the reasons that follow, the Court recommends that Plaintiff's Motion for Summary Judgment (ECF No. 12) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 14) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED.

I. PROCEDURAL HISTORY

On December 5, 2011, Plaintiff filed an application for DIB, and on December 29, 2011, Plaintiff filed an application for SSI, with an alleged onset date of March 15, 2010. (R. at 218, 236.) The SSA denied these claims initially on March 12, 2012, and upon reconsideration on October 10, 2012. (R. at 142, 153.) At Plaintiff's written request, the ALJ held a hearing on April 3, 2014. (R. at 57, 156.) On June 27, 2014, the ALJ issued a written opinion, denying Plaintiff's claims and concluding that Plaintiff did not qualify as disabled under the Act, because jobs existed in significant numbers in the national economy that Plaintiff could perform. (R. at 22–35.) On December 15, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner subject to review by this Court. (R. at 1.) On February 11, 2015, Plaintiff sought judicial review of the Commissioner's decision. At Plaintiff's request, this Court heard oral argument on December 7, 2015. (Tr. of Dec. 7, 2015, Hr'g. (“Tr.”) at 1, 4.)

II. STANDARD OF REVIEW

In reviewing the Commissioner's decision to deny benefits, the Court “will affirm the Social Security Administration's disability determination ‘when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.’ ” Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir.2015) (quoting Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.2012) ). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.2012) ; Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996).

To determine whether substantial evidence exists, the Court must examine the record as a whole, but may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005) ). In considering the decision of the Commissioner based on the record as a whole, the Court must “take into account whatever in the record fairly detracts from its weight.” Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir.1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 476. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987).

The SSA regulations set forth a five-step process that the agency employs to determine whether a disability exists. 20 C.F.R. § 416.920(a)(4) ; see Mascio, 780 F.3d at 634–35 (summarizing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. 20 C.F.R. § 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. 20 C.F.R. § 416.920(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. 20 C.F.R. § 416.920(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity (“RFC”), accounting for the most that the claimant can do despite her physical and mental limitations. 20 C.F.R. § 416.945(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. 20 C.F.R. § 416.920(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. 20 C.F.R. § 416.920(a)(4)(v).

III. THE ALJ'S DECISION

On April 3, 2014, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert (“VE”) testified. (R. at 22.) On June 27, 2014, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 35.)

The ALJ followed the five-step evaluation process established by the Act in analyzing Plaintiff's disability claim. (R. 23–24). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity (“SGA”) since March 15, 2010. (R. at 24.) At step two, the ALJ determined that Plaintiff had severe impairments of degenerative disc disease of the lumbar spine, chronic liver disease, hepatitis C, chronic anemia, posterior tibialis tendonitis of the left lower extremity and bilateral pes planus. (R. at 24.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 27.)

In assessing Plaintiff's RFC, the ALJ found that Plaintiff had the RFC to perform less than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (R. at 29.) Plaintiff could frequently lift and carry ten pounds and occasionally lift and carry twenty pounds. (R. at 29.) She could sit for seven hours in an eight-hour work day. (R. at 29.) She could stand or walk for two hours in an eight-hour day. (R. at 29.) She could constantly push or pull at the light exertional level. (R. at 29.) She could occasionally climb stairs or ramps. (R. at 29.) She could occasionally climb ladders, ropes or scaffolds. (R. at 29.) She could frequently balance, stoop, kneel, crouch or crawl. (R. at 29.)

At step four, the ALJ found that Plaintiff could not perform any past relevant work. (R. at 34.) At step five, the ALJ determined that Plaintiff could perform other jobs existing in significant numbers in the national economy. (R. at 34–35.) Therefore, the ALJ found that Plaintiff did not qualify as disabled under the Act. (R. at 35.)

IV. ANALYSIS

Plaintiff, fifty-two years old at the time of this Report and Recommendation, previously worked as a server and a store laborer. (R. at 82.) She applied for DIB and SSI, alleging disability from fractured ribs, cataracts, pancreatitis, knee problems, hepatitis C, cirrhosis of the liver, feet problems, enlarged liver/spleen, breast cancer and anemia, with an alleged onset date of March 15, 2010. (R. at 222, 248.) Plaintiff argues that the ALJ erred, because his RFC findings contradict the SSA's policies and regulations. (Pl.'s Mem. at 2–7; Tr. at 20–28.) Alternatively, Plaintiff argues that the ALJ erred by violating the SSA's Program Operations Manual System (“POMS”) DI 25025.015(D). (Pl.'s Mem. at 6–7; Pl's Reply Br. (“Pl.'s Reply”) (ECF No....