Orndorff v. Colvin

• Decision Date: 13 April 2016
• Docket Number: CIVIL ACTION NO. 1:14–CV–2465
• Parties: Tammy J. ORNDORFF, Plaintiff v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

215 F.Supp.3d 391

Tammy J. ORNDORFF, Plaintiff

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

CIVIL ACTION NO. 1:14–CV–2465

United States District Court, M.D. Pennsylvania.

Signed April 13, 2016

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

Timothy S. Judge, Scranton, PA, for Defendant.

ORDER

Christopher C. Conner, Chief Judge

AND NOW, this 13th day of April, 2016, upon consideration of the report (Doc. 23) of Magistrate Judge Gerald B. Cohn, recommending that the court dismiss the appeal of Tammy J. Orndorff ("Orndorff") from the decision of the administrative law judge denying her application for supplemental security income and disability insurance benefits, and the court noting that Orndorff filed objections (Doc. 24) to the report, and that the Commissioner of Social Security ("Commissioner") filed a response (Doc. 25) thereto, and, following a de novo review of the contested portions of the report, seeBehar v. Pa. Dep't of Transp. , 791 F.Supp.2d 383, 389 (M.D. Pa. 2011) (citing Sample v. Diecks , 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) ; 28 U.S.C. § 636(b)(1)(C) ), and applying a clear error standard of review to the uncontested portions, see Cruz v. Chater , 990 F.Supp. 375, 376–78 (M.D. Pa. 1999), the court being in agreement with Judge Cohn that the decision of the administrative law judge is "supported by substantial evidence," 42 U.S.C. § 405(g) ; see Fargnoli v. Massanari , 247 F.3d 34, 38 (3d Cir. 2001), and finding Judge Cohn's analysis to be thorough, well-reasoned, and fully supported by the record, and further finding Orndorff's objections to be without merit and squarely addressed by the report, it is hereby ORDERED that:

1. The report (Doc. 23) of Magistrate Judge Cohn is ADOPTED.

2. The decision of the Commissioner of Social Security ("Commissioner") denying the application for supplemental security income and disability insurance benefits of Tammy J. Orndorff ("Orndorff") is AFFIRMED.

3. The Clerk of Court shall enter judgment in favor of the Commissioner and against Orndorff as set forth in paragraph 2.

4. The Clerk of Court is directed to CLOSE this case.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

REPORT AND RECOMMENDATION

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant") denying the application of Tammy J. Orndorff ("Plaintiff") for supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§ 401 –433, 1382 –1383 (the "Act") and Social Security Regulations, 20 C.F.R. §§ 404.1501 et seq. , §§ 416.901 et. seq.¹ (the "Regulations").

Under the deferential substantial evidence standard of review, Plaintiff has to demonstrate that no reasonable person would have denied her benefits. Plaintiff asserts that she was unable to perform any work because of disabling physical impairments, including diabetes

, obesity, and lower extremity neuropathy, and mental impairments. Most of the records cited by Plaintiff in this appeal are from prior to the relevant period, but a prior ALJ found that these records did not support disability, and res judicata applies. During the relevant period, Plaintiff treated conservatively, with five visits to her primary care provider ("PCP"), six medication management visits with a psychiatrist, and a brief hospitalization. Her PCP observed very mild decreased sensation in her lower extremity at one visit, and prescribed Neurontin. At every other visit thereafter, he observed no objective abnormalities. With regard to mental impairments, the ALJ relied on a non-treating medical opinion from a psychiatrist who opined that she did not suffer disabling impairments. The ALJ properly found that Plaintiff was less than fully credible, and Plaintiff does not challenge the ALJ's credibility finding on appeal. Plaintiff has failed to demonstrate that no reasonable person would have denied her benefits. The Court recommends that Plaintiff's appeal be denied, the decision of the Commissioner be affirmed, and the case closed.

II. Procedural Background

On May 20, 2011 and July 22, 2011, Plaintiff applied for DIB and SSI under the Act, respectively. (Tr. 294–302). On September 23, 2011, the Bureau of Disability Determination ("state agency") denied Plaintiff's application (Tr. 170–95), and Plaintiff requested a hearing. (Tr. 216–17). On December 4, 2012 and March 12, 2013, an ALJ held a hearing at which Plaintiff–who was represented by an attorney–and a vocational expert ("VE") appeared and testified. (Tr. 54155). On March 21, 2013, the ALJ found that Plaintiff was not entitled to benefits. (Tr. 37–53). Plaintiff requested review with the Appeals Council (Tr. 8), which the Appeals Council denied on October 21, 2014, affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1–7). See Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).

On December 28, 2014, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On March 9, 2015, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 11, 12). On April 23, 2015, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). (Doc. 14). On May 29, 2015, Defendant filed a brief in response ("Def. Brief"). (Doc. 19). On June 8, 2015, Plaintiff filed a brief in reply ("Pl. Reply"). (Doc. 20). On June 29, 2015, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

III. Standard of Review and Sequential Evaluation Process

To receive benefits under the Act, a claimant must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) ; 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A) ; 42 U.S.C. § 1382c(a)(3)(B).

The ALJ uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520. The ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that the claimant can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A) ; 20 C.F.R. § 416.912(a).

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean 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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).

IV. Relevant Facts in the Record

Plaintiff earned between $0.00 and $13,309.20 in each of her last ten years of working, from 2000 to 2009. (Tr. 307). She did not earn anything after 2009. (Tr. 307). She has past relevant semi-skilled and unskilled work at the medium exertion level as a janitor and a nursing assistant. (Tr. 47, 317). As of August of 2009, she was living with an "abusive" husband and three children aged six, four, and three. (Tr. 670). By December of 2009, she reported that she had separated from her husband, and had her children "24/7." (Tr. 658). Her youngest child had been diagnosed with ADHD and ODD, and Plaintiff was living with her mother because her only significant income was child support. (Tr. 658). Records from 2009 through March of 2011 show repeated hospitalizations for suicide ideation; a suicide attempt; and emergency room visits for dizziness, elevated sugars, anxiety, and excessive Xanax

use. (Tr. 382–85, 401, 415–17, 423–28, 430–46, 452–56, 478, 543–46, 554–56, 568, 572, 574, 743, 745, 748). These records contain objective findings that include depressed mood and affect, suicidal ideation, slow flow of thought, ideas of hopelessness/helplessness, impaired insight...