Leslie v. Barnhart

• Decision Date: 26 November 2003
• Docket Number: No. Civ.A. 3:03-CV-0749.,Civ.A. 3:03-CV-0749.
• Citation: 304 F.Supp.2d 623
• Parties: Virginia A. LESLIE, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

304 F.Supp.2d 623

Virginia A. LESLIE, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. Civ.A. 3:03-CV-0749.

United States District Court, M.D. Pennsylvania.

November 26, 2003.

Thomas D. Sutton, Levanthal & Sutton, Langhorne, PA, for Plaintiff.

Justin Blewitt, U.S. Attorney's Office, Scranton, PA, for Defendant.

ORDER

CONABOY, District Judge.

AND NOW, this twenty-sixth day of November 2003, it appearing to the Court that:

1. The above-captioned matter involves Plaintiff Virginia A. Leslie's application to receive Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and the Commissioner of Social Security's denial of benefits, (Doc. 1);

2. On May 5, 2003, Plaintiff filed the above-captioned action appealing to this Court for review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g), (Doc. 1);¹

3. The matter was referred to Magistrate Judge J. Andrew Smyser who issued a report and recommendation November 6, 2003, (Doc. 9);

4. The Magistrate Judge recommends that the case be remanded to the Commissioner for further consideration, (Doc. 9 at 17);

5. Plaintiff did not file objections to the Report and Recommendation and Defendant waived the opportunity to do so, (Doc. 10).

IT FURTHER APPEARING TO THE COURT THAT:

1. When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 140 150-53, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Moreover, when no objections are filed, the district court is required only to review the record for "clear error" prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990 F.Supp. 375, 378 (M.D.Pa.1998); Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D.Pa.1998).

2. When reviewing the denial of benefits, the Court must determine whether the denial is supported by substantial evidence. See, e.g., Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988).

3. We concur with the Magistrate Judge's determination that the ALJ did not properly address the issue of Plaintiff's credibility and did not properly evaluate her subjective symptoms. (Doc. 9 at 8-13.)

4. We conclude that the Magistrate Judge correctly determined that the ALJ's reconsideration on remand (Civil Action No. 3:01-CV-2424; see supra n. 1) of Plaintiff's ability to perform her past relevant work, an issue which was not the subject of the remand, was improper. (Id. at 14-16.) Therefore, on remand the Commissioner must proceed on the basis of the original Step Four finding that Plaintiff does not have the residual functional capacity to perform her past relevant work.

5. Finally, we agree with the Magistrate Judge's determination that the ALJ must expressly consider and discuss and make a finding or findings as to the opinion of Plaintiff's treating orthopedist, Carl P. Sipowicz, M.D. (Doc. 9 at 16-17.)

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. The Magistrate Judge's Report and Recommendation, (Doc. 9), recommending that the case be remanded to the Commissioner for further consideration is ADOPTED;

2. This case is REMANDED to the Commissioner for further consideration consistent with this opinion and the Magistrate Judge's Report and Recommendation, (Doc. 9);

3. The Clerk of Court is directed to close this case.

REPORT AND RECOMMENDATION

SMYSER, United States Magistrate Judge.

The plaintiff has brought this civil action under the authority of 42 U.S.C. § 405(g) to obtain judicial review of the decision of the Commissioner of Social Security denying the claim of the plaintiff for Social Security disability insurance benefits.

On June 14, 1995, the plaintiff, Virginia A. Leslie, applied for disability insurance benefits. She claimed that she became disabled on April 30, 1992, as the result of chronic degenerative changes, and herniated or bulging discs. Her claim was denied initially and on reconsideration. The plaintiff filed a request for a hearing, and a hearing was held before an administrative law judge (ALJ) on March 11, 1999. Tr. 25-67.

At this hearing the plaintiff, who was represented by her attorney, testified, and her husband testified. A vocational expert also testified. Ms. Leslie, 47 years old at the time of the hearing, testified that she graduated from high school, and has two years of college. She was 5'3 1/2" and weighed 177 pounds. She has a driver's license. She last worked in an accounting job as a re-insurance accounting manager, in January of 1991. The work was performed seated at a computer. She oversaw the work of about thirty persons. She was let go from the position. She tried to do some other work, but her condition caused her to miss work, and she last worked in April of 1992.

She recalled that she had experienced an episode of back pain and immobility in 1989 after trying to move a filing cabinet. She was hospitalized then for a few weeks. She was in traction. She returned to work. Later, her back went out again. She was again hospitalized. She underwent physical therapy. There was no improvement. This then culminated in her 1992 cessation of working.

She stated that she is limited to sitting for about 15 minutes. There have been times when she could not arise from a seated position without help. She can stand for short periods of time, and her best practice is to alternate sitting and standing for short periods of time.

She tried working in a job boxing Christmas items. She placed light items in boxes, for one day. The day left her needing bed rest for a long period of time.

Her lower back pain is a burning sensation.

She drives her husband to and from his bus stop to go to work. She drives her daughter to the bus stop. She does not go grocery shopping without her husband. She stated in her testimony that she does not go upstairs in her home to her daughter's room. Her husband does many of the household chores. She does the laundry, however, a couple of loads a day.

She has also developed a condition of anal cancer, diagnosed in December of 1998. She has finished a course of radiation therapy and a course of chemotherapy.

She takes Darvocet for her pain. She takes Motrin, which prevents back spasms.

Alex Leslie, her husband, testified that he commutes two and a half hours to his insurance company job in Brooklyn every day. He stated that his wife's back condition presents her most serious physical problem, although he is most worried about her cancer.

He does almost all of the household work. He has taken his wife to the hospital on occasions. She has had physical therapy. He massages her back for her every day. She cries all of the time as the result of her back pain.

He stated that he believes that she can not work because she can not sit. He stated that she sometimes goes upstairs in their home to use the computer there. He stated that his wife is not allowed to touch the laundry or to move the laundry basket.

He stated that his wife's back condition limits their activities. Although they were able to go together with their daughter to Disney World, his wife's limitations as to standing or walking caused them to have to extend their trip for several days to permit the family to try to see most of the facility.

Marianne Starosta, a vocational expert, testified that, assuming that Ms. Leslie (considering her age, education and work experience) has a work capability for sedentary work with a sit-or-stand option and can not crawl, crouch, kneel, climb, or squat, push or pull with the legs, and could not do a job at a computer, there are jobs in the economy that she could perform: hand assembly, testing electronic items, hand packaging, inspection of manufactured parts and goods, and collating (as in a print shop).

On April 30, 1999, the ALJ issued his decision denying the plaintiff benefits. Tr. 12-19.

The plaintiff filed a complaint with this court on December 20, 1991.

In a Report and Recommendation on August 1, 2002, it was recommended that the case be remanded to the Commissioner, Tr. 216-230, and by Order of August 26, 2001 it was remanded.

After remand, a hearing was held on February 13, 2003. Tr. 286-342. By Decision of February 27, 2003, the claim was denied. Tr. 196-204. This civil action was initiated by a complaint filed on May 5, 2003. The answer and administrative record were filed on July 24, 2003. Briefs were filed, Docs. 6, 7 and 8. The case is ripe for decision.

The plaintiff argues that on remand the ALJ erred in that he failed to consider a treating orthopedist's opinion, that it was an error for the ALJ on remand to find that the plaintiff could return to her past relevant work when the earlier ALJ had found her unable to perform her past relevant work, and that the ALJ erred in that he discounted the plaintiff's credibility based upon an improper analysis.

If the Commissioner's decision is supported by substantial evidence it must be affirmed. 42 U.S.C. § 405(g). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995)). Substantial evidence is more than a mere scintilla of evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988).

A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.1993). However, in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the decision] from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

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