McCleary v. Colvin

• Decision Date: 29 February 2016
• Docket Number: 1:15–cv–172
• Citation: 187 F.Supp.3d 497
• Parties: Timothy McCleary, Plaintiff, v. Carolyn Colvin, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

187 F.Supp.3d 497

Timothy McCleary, Plaintiff,

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

1:15–cv–172

United States District Court, M.D. Pennsylvania.

Signed February 29, 2016

Filed March 1, 2016

Katherine L. Niven, Law Office of Katherine L. Niven & Associates, PC, Harrisburg, PA, for Plaintiff.

D. Brian Simpson, United States Attorney's Office—Social Security Division, Harrisburg, PA, for Defendant.

ORDER

John E. Jones III, United States District Judge

AND NOW , upon consideration of the Report and Recommendation of United States Magistrate Judge Gerald B. Cohn (Doc. 18), recommending that the Commissioner's final decision denying Timothy McCleary's application for benefits be affirmed and the appeal be denied, and, after an independent review of the record, and noting that the Plaintiff filed objections,¹ to which the Commissioner responded (Docs. 19 and 20) and the Court finding Judge Cohn's analysis to be extremely thorough, well-reasoned, and fully supported by the record, and the Court further finding Plaintiff's objections to be without merit² and squarely addressed by Judge Cohn's report IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation of Magistrate Judge Cohn (Doc. 18) is ADOPTED in its entirety.

2. The Clerk of Court shall enter judgment in favor of the Commissioner and against Timothy McCleary as set forth in the following paragraph.

3. The decision of the Commissioner of Social Security denying Timothy McCleary disability insurance benefits is affirmed.

4. The Clerk of Court shall CLOSE this case.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

REPORT AND RECOMMENDATION

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

I. Procedural Background

On July 13, 2009, Timothy McCleary ("Plaintiff") filed as a claimant for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 –34, 1181–1183f, with a date last insured of September 30, 2014,¹ with an amended disability onset date of July 13, 2009. (Administrative Transcript (hereinafter, "Tr."), 540–41).

After the claim was denied at the initial level of administrative review, the Administrative Law Judge (ALJ) held a hearing on January 25, 2011. (Tr. 28–70). On March 18, 2011, the ALJ found that Plaintiff was not disabled within the meaning of the Act. (Tr. 12–27). On April 28, 2011, Plaintiff sought review of the unfavorable decision, which the Appeals Council denied on April 1, 2013. (Tr. 1–5). On May 28, 2013, Plaintiff appealed the decision of the Commissioner of the Social Security Administration denying social security benefits in McCleary v. Colvin, 1:13–cv–01434–CCC. In McCleary v. Colvin, 1:13–cv–01434–CCC, the Commissioner requested that the case be remanded stipulating that, "[o]n remand, the administrative law judge will update the record; hold a supplemental hearing; issue a new decision; and, in the decision, specifically explain the consideration given to the Veterans Administration's disability rating(s)." McCleary v. Colvin, 1:13–cv–01434–CCC, at ECF No. 15. On January 2, 2014, the case was remanded for further proceedings. McCleary v. Colvin, 1:13–cv–01434–CCC, at ECF No. 16, 17. On February 7, 2014, the Appeals Counsel remanded the matter (Tr. 641–645) mandating for the ALJ to:

Further evaluate the claimant's medically determinable impairments in accordance with 20 C.F.R. § 404.1520, and in so doing, specifically explain the consideration provided the Veterans Administration disability rating and indicate the weight assigned such opinion evidence.

If needed, further consider the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404. 1545 and Social Security Ruling 85–16 and 96–8p).

If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83–14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404. 1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00–4p).

(Tr. 643–44). On June 13, 2014, the ALJ held another hearing (Tr. 555–600) and on September 30, 2014, the ALJ found that Plaintiff was not disabled within the meaning of the Act (Tr. 537–554). On January 26, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. (Doc. 1). On April 10, 2015, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. (Doc. 9, 10). In the Answer, Defendant "clarifies that jurisdiction and venue are conferred upon this Court pursuant to 42 U.S.C. § 405(g) of the Social Security Act." (Doc. 9). On May 25, 2015, Plaintiff filed a brief in support of the appeal. (Doc. 12 ("Pl.Brief")). On June 25, 2015, Defendant filed a brief in response. (Doc. 14 ("Def.Brief")). On June 29, 2015, the Court referred this case to the undersigned Magistrate Judge. On July 2, 2015, Plaintiff filed a reply brief. (Tr. 15 ("Reply")).

II. Relevant Facts in the Record

Plaintiff was born in May 1982, and thus was classified by the regulations as a younger person through the date of last insured, December 31, 2013. (Tr. 22); 20 C.F.R. § 404.1563(c). Plaintiff took special education classes and graduated high school in 2002. (Tr. 133). Plaintiff had an Individualized Education Plan ("IEP") for extra time to take tests and for to help with reading and spelling. (Tr. 134). Plaintiff served in the Army from June 2004 to December 2007. (Tr. 249). Plaintiff's past relevant work includes a fast food worker, a heat and air conditioning helper and a laborer. Pl. Brief at 3. (Tr. 548).

A. VA Rating Decision²

Plaintiff was issued a VA rating decision on August 19, 2012. (Tr. 1043–44). The rating decision does not include an explanation or analysis and the following information is generally the entirety of what information was included in the rating decision. The rating specialist assigned Diagnostic Code 9411 for Plaintiff's PTSD and determined that Plaintiff's PTSD impairment was 50% disabling from December 15, 2007, onward. (Tr. 1043). The rating specialist assigned Diagnostic Code 5257 for "chronic lumbar strain

(formerly rated as upper and lower back strain)" and determined that the back impairment was: 1) 10% disabling from December 15, 2007, to April 19, 2009; 40% disabling from April 20, 2009 to March 31, 2010, and; 20% disabling from April 1, 2010, onward. (Tr. 1043). The rating specialist assigned Diagnostic Code 6260 for Plaintiff's tinnitus and determined that impairment was 10% disabling from December 15, 2007, onward. (Tr. 1043). The rating specialist assigned Diagnostic Code 5257 for Plaintiff's "left knee strain with no evidence of chondromalacia patellae (previously diagnosed as right knee strain with chondromalacia patellae )," and determined that the impairment was 0% disabling from December 15, 2007 to April 25, 2010; and 10% disabling from April 26, 2010, onward. (Tr. 1043). A rating specialist assigned Diagnostic Code 5257 for Plaintiff's "right knee strain with no evidence of chondromalacia patellae (previously diagnosed as right knee strain with chondromalacia patellae )," and determined that the impairment was 0% disabling from December 15, 2007 to April 25, 2010; and 10% disabling from April 26, 2010, onward. (Tr. 1044). The rating specialist assigned Diagnostic Code 6100 for Plaintiff's "bilateral hearing loss)," and determined that the impairment was 0% disabling from December 15, 2007, onward. (Tr. 1044). Plaintiff's initial "combined evaluation for compensation"³ was 60% from December 15, 2007. (Tr. 1044). After submitting successive claims for increased compensation based on purported increase of impairment, Plaintiff had the following combined evaluations: 70% from April 20, 2009; 60% from April 1, 2010, and; 70% from April 26, 2010, onward. (Tr. 1044). The rating specialist also noted that Plaintiff's claim of sciatic spams of the lower back was not diagnosed and denied Plaintiff's claim for Total Disability Based on Unemployablity ("TDIU").⁴ (Tr. 1044).

B. Relevant Treatment History, Medical, and Other Source Opinions

1. VA Treatment Records: Gary T. Budd, Staff Prosthetist, PSAS; James W. Kee, MPT⁵ ; Morris B. Field, radiologist; Martin P. Fleming, M.d.; Sutton T. Ulman, M.S.W.; Marshall F. Sinback, P.A.–C.; Colleen M. Sluder, D.O.; Cynthia S. Shump, N.P.; Patricia A. Wright, R.N.; David W. Braithwaite, R.N.; Elizabeth L. Putnam, P.A.; Beth E. Nease, P.A.–C.; Anthony K. Rice, M.D.; Denease L. Stec, L.P.N.; Shawn M. Neff, D.C.; Abdolali Elmi, M.D.; Adrienne L. Gray; Deborah D. Willis, R.N.; Mark E. Meany, M.D.; Ali Asghar, M.D.; Manjula Kataram, M.D.; Marsha L. Martin, L.P.N.; Thomas A. Kidd, P.A.; Fezan H. Rizvi, M.D.; Sutton T. Ulman, M.S.W.; Wafa I. Rizk, M.D.; Khusro Y. Arastu, M.D.; Manjula Kataram, M.D.; Joseph Canvin, M.D.; Hojoon Jung, M.D.; Jung Joo Suh, M.D.; Marta J. Chaplynsky, M.D.

On August 27, 2008, Plaintiff was a new patient with Dr. Sluder and complained of bilateral shoulder pain and bilateral knee pain which was not constant and was not accompanied with weakness. (Tr. 332–33, 339–40). Plaintiff reported occasional restriction of motion. (Tr. 333). Upon examination, Dr....