Cefalu v. Barnhart

• Decision Date: 06 September 2005
• Docket Number: Civil Action No. 04-1718.
• Citation: 387 F.Supp.2d 486
• Parties: Peter CEFALU, Jr., Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

387 F.Supp.2d 486

Peter CEFALU, Jr., Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

Civil Action No. 04-1718.

United States District Court, W.D. Pennsylvania.

September 6, 2005.

COPYRIGHT MATERIAL OMITTED

Karl E. Osterhout, Pittsburgh, PA, for Plaintiff.

Jessica Smolar, United States Attorney's Office, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

HARDIMAN, District Judge.

I. Introduction

Plaintiff Peter Cefalu, Jr. (Cefalu) brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) of the Social Security Act (Act), seeking review of the final determination of the Commissioner of Social Security (Commissioner) denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). This matter is before the Court on the parties' cross motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure based on the record developed at the administrative proceedings.

After careful consideration of the Administrative Law Judge's (ALJ's) decision, the memoranda of the parties, and the entire record, the Court finds that the ALJ's decision is supported by substantial evidence. Therefore, Plaintiff's motion for summary judgment will be denied and the Commissioner's determination will be affirmed.

II. Procedural History

Plaintiff Cefalu first sought Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) and was denied in January 1994. (R. 13, 34, 74). Because he did not appeal, a finding of no disability prior to January 1994 is administratively final. See 20 C.F.R. §§ 404.905, 416.1405 (2004).

This appeal relates to Cefalu's application for DIB and SSI filed on March 15, 2000, in which he alleges disability as of March 21, 1993 because of recurrent herpetic keratitis and secondary glaucoma of the right eye as well as discogenic and degenerative disorders of the back. (R. 58-61, 74-76). The Commissioner denied the claim by letter dated June 14, 2000. (R. 62-65). Cefalu then requested an administrative hearing which was held on April 3, 2001, in Pittsburgh, Pennsylvania before Administrative Law Judge (ALJ) James J. Pileggi. (R. 27-57). Cefalu was represented by counsel and testified at the hearing. At the start of that hearing, Cefalu's counsel amended the onset date of his alleged disability to February 1, 1994 in light of his previously denied application. (R. 34-35).

In a decision dated June 29, 2001, the ALJ found that Cefalu was not disabled under the Act because he had the residual functional capacity (RFC) to perform a full range of light work prior to the date his insured status expired for DIB.¹ (R. 13-20). The ALJ also found that Cefalu was not disabled with respect to his SSI claim because he had the RFC to perform a full range of sedentary work as of the date of his application.² (R. 13-20). The ALJ's decision became the final decision of the Commissioner when the Appeals Council indicated that the next appeal available in Cefalu's case would be federal court review of the ALJ's decision.³ (R. 10-12).

On August 30, 2001 Cefalu mistakenly filed a pro se appeal of the ALJ's decision with the Appeals Council. (R. 9). On March 8, 2002 the Appeals Council informed him that his appeal had been improperly filed and dismissed it for lack of jurisdiction. (R. 7-8). The Appeals Council also informed Cefalu that the erroneously filed request would be treated as a timely notice of intent to file a civil action with respect to the ALJ's decision and granted him an additional 60 days to file his civil action. Cefalu then retained Karl E. Osterhout, Esq., who requested a copy of the record to prepare an appeal. (R. 6A, 6B). Osterhout obtained another 60 day extension from the Appeals Council and the present appeal was then timely filed. (R. 5).

III. Statement of Facts

Plaintiff Cefalu was born on October 5, 1955 and was 45 years old at the time of the ALJ's decision, making him a "younger individual" under the regulations. 20 C.F.R. § 404.1563(c). Cefalu has a seventh grade education and prior work experience as an automobile mechanic, construction worker, and truck driver. (R. 34, 38-40). He is single and lives with his 82 year-old father. (R. 36, 49). Cefalu has no income and relies upon the financial support of his father and girlfriend. (R. 36). He also testified that he stopped working on a regular basis on February 1, 1994 because of medical conditions. (R. 14). Although Cefalu testified that he attended the Office of Vocational Rehabilitation (OVR) in 1994 and worked two months as an auto mechanic, the record does not reflect any earnings for this period. Therefore, February 1, 1994 is the date of his last employment. (R. 77-79). Cefalu's earning record reveals that he acquired sufficient quarters to remain insured only through December 31, 1995. (R. 13).

In his application, Cefalu claims only physical impairments related to his eye and back injuries. (R. 58-62, 84-91). Similarly, during the hearing Cefalu claimed only physical impairments. See R. 41-50 (describing back problems); R. 51-53 (describing eye problems). Neither he nor his attorney at any time made reference to non-exertional or mental impairments. Indeed, Cefalu testified that he did not have any mental or emotional conditions for which he sought treatment. (R 40). Nevertheless, Cefalu does not appeal the ALJ's decision regarding his physical impairments. Instead, he claims the ALJ erred in failing to discuss evidence of severe non-exertional impairments. See Pl. Br. at 6-11.

In support of his claim of a severe non-exertional impairment, Cefalu relies on an April 1, 1994 psychological report completed by licensed psychologist John R. Erbel, M.S.Ed., to whom Cefalu was referred by his vocational counselor. (R. 136). Ironically, in the report upon which he exclusively relies, Cefalu denied any mental or emotional disabilities and stated that his disability is a result of a virus in his right eye and he expressed a desire to become a truck driver or an automotive technician. (R. 137).

Cefalu arrived for his appointment with Mr. Erbel an hour early, was unaccompanied, and evidenced no anomalies of gait, speech or hearing but noted that he wears eyeglasses for light sensitivity because of the virus in his right eye. (R. 137). Cognitively, Cefalu functioned in the average to low average range of intelligence as characterized by his verbal expressive and receptive skills. His ability to follow directions and his general demeanor were good. (R. 137). Erbel observed Cefalu to be oriented x3 and he was free of delusions, hallucinations, and ideas of reference. (R. 137). Cefalu conducted himself appropriately and was cooperative and polite throughout the testing and demonstrated good grooming and hygiene. (R. 137). He had good recall of both recent and remote events. (R. 137).

Testing revealed that Cefalu had a full-scale IQ of 91, which placed him within the lower end of the average range of intelligence. (R. 138). Moreover, he demonstrated average abilities to think abstractly, form appropriate conceptualizations, attend to auditory input, and recall recent events. (R. 138). Cefalu's spelling, word recognition, and arithmetic skills were below expectancy and a learning disability regarding spelling was identified. (R. 139).

Vocational testing revealed that Cefalu possesses adequate aptitude for four of the fourteen areas measured by the Career Ability Placement Survey. (R. 141). Based on that test, Cefalu was most suited for an occupation in the outdoor field. (R. 139). The California Occupational Preference System indicated that the best fit between Cefalu's aptitudes and interests was the skilled technology field and secondarily the outdoor or consumer economics field. (R. 139-140). Two additional achievement tests indicated that Cefalu possessed adequate academic abilities for competitive employment and limited post-secondary training. (R. 139).

IV. Standards of Review

Judicial review of the Commissioner's final decision on disability claims is provided by 42 U.S.C. §§ 405(g)⁴ and 1383(c)(3).⁵ Section 405(g) permits a district court to review transcripts and records upon which a determination of the Commissioner is based. Because the standards for eligibility under Title II (42 U.S.C. §§ 401-433, regarding DIB), and judicial review thereof, are virtually identical to the standards under Title XVI (42 U.S.C. §§ 1381-1383f, regarding Supplemental Security Income, or "SSI"), disability decisions rendered under Title II are pertinent to those rendered under Title XVI. Sullivan v. Zebley, 493 U.S. 521, 525 n. 3, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).

If supported by substantial evidence, the Commissioner's factual findings must be accepted as conclusive. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995); Wallace v. Secretary of HHS, 722 F.2d 1150, 1152 (3d Cir.1983). The district court's function is to determine whether the record, as a whole, contains substantial evidence to support the Commissioner's findings. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994), citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Supreme Court has explained that "substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (citation omitted). See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.2004). The United States Court of Appeals for the Third Circuit has referred to this standard as "less than a preponderance of the evidence but more than a mere scintilla." Jones, 364 F.3d at 503, quoting Jesurum v. Secretary of the Dep't of Health and Human Servs., 48 F.3d 114, 117 (3d Cir.1995). "A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.19...