Palmer v. Apfel, Civil Action No. 97-2063.

• Decision Date: 09 February 1998
• Docket Number: Civil Action No. 97-2063.
• Citation: 995 F.Supp. 549
• Parties: David E. PALMER v. Kenneth S. APFEL,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security.
• Court: U.S. District Court — Eastern District of Pennsylvania

995 F.Supp. 549

David E. PALMER v. Kenneth S. APFEL,¹ Commissioner of Social Security.

Civil Action No. 97-2063.

United States District Court, E.D. Pennsylvania.

February 9, 1998.

Craig M. Kellerman, Norristown, PA, for Plaintiff.

James A. Winn, U.S. Dept. of Health and Human Services, Philadelphia, PA, for Defendant.

MEMORANDUM and ORDER

SHAPIRO, District Judge.

Plaintiff David E. Palmer ("Palmer") seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (the "Commissioner") denying his claims for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401, et seq., and Supplemental Security Income ("SSI") under Title XVI of the Act. See 42 U.S .C. § 1381, et seq. The parties' cross-motions for summary judgment were referred to United States Magistrate Judge Peter B. Scuderi ("Judge Scuderi") for a Report and Recommendation. Judge Scuderi recommended that Palmer's motion for summary judgment be denied and the Commissioner's motion for summary judgment be granted. For the reasons stated below, the court will grant summary judgment in favor of the Commissioner.

BACKGROUND

Palmer, born September 20, 1954, was forty-one years old at the time of his hearing before the administrative law judge ("ALJ"). (Tr. 31, 219). After graduating from high school, Palmer attended cooking school, tractor trailer school, received welding training and completed a computer programming course at home. (Tr. 31, 105, 113, 226). Palmer has worked as a cook, tractor trailer driver, newspaper delivery driver, cab driver, television cable installer, security guard, gas station attendant/cashier and telemarketer. (Tr. 40-43, 48-49, 51-52, 113, 123-27, 226-27).

Palmer, alleging a disabling injury and surgery on his left knee, filed a claim for DIB and SSI on March 10, 1994; he alleged an onset date of March 9, 1994. (Tr. 73-76, 190). Palmer subsequently amended the onset date to July 27, 1993. (Tr. 29).² Palmer's applications for benefits were denied initially and upon reconsideration. (Tr. 77-79, 82-85, 198-204).

Palmer requested a hearing before an ALJ from the Office of Hearings and Appeals. (Tr. 25). On April 25, 1996, the ALJ conducted a hearing on Palmer's claims. (Tr. 26-58). The ALJ denied Palmer's claims by decision dated August 5, 1996. (Tr. 12-25). Palmer requested review of the ALJ's decision; the Appeals Council denied Palmer's request on January 22, 1997. Palmer then sought review of the Commissioner's final decision in this court.

To establish a disability under the Act, an applicant must show that there is some "medically determinable basis for an impairment that prevents engaging in any `substantial gainful activity' for a statutory twelve-month period." Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d Cir.1988) (citing Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.1987)). An applicant can establish a disability by: 1) producing medical evidence showing he is disabled per se by meeting or equaling the impairments listed in the regulations, see Stunkard, 841 F.2d at 59; or 2) demonstrating an impairment severe enough to prevent the applicant from engaging in "any kind of substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); see Cerar v. Secretary of Dept. of Health & Human Servs., No. 93-6973, 1995 WL 44551, at *2 (E.D.Pa. Feb.1, 1995) (Shapiro, J.).

The ALJ decided this case under the five-step sequential evaluation of disability claims. See generally Heckler, 461 U.S. at 467-68; Santise v. Schweiker, 676 F.2d 925, 934-35 (3d Cir.1982), cert. dismissed, 461 U.S. 911, 103 S.Ct. 1889, 77 L.Ed.2d 280 (1983). The five-step process is similar for both DIB and SSI.³ The burden of establishing each step with sufficient medical evidence lies with the applicant. See 42 U.S.C. § 423(d)(5).

The ALJ made the following findings. First, the ALJ determined Palmer "has not engaged in substantial gainful activity since March 9, 1994." (Tr. 19). Second, the ALJ found the evidence established that Palmer suffers from patellofemoral degenerative joint disease with chronic recurrent reaggravation in his left knee. (Tr. 19). The ALJ found this to be a severe impairment. (Tr. 19). Third, the ALJ concluded this severe impairment did not meet or equal any impairments listed in the regulations. (Tr. 19). Fourth, the ALJ determined the impairment precludes Palmer from performing any of his past work. (Tr. 19).

The ALJ reached the last step of the sequential evaluation and found Palmer "capable of making an adjustment to work which exists in significant numbers in the national economy." (Tr. 20). In particular, the ALJ found Palmer capable of performing sedentary work. The ALJ adopted the vocational expert's testimony that Palmer could work as an inspector/examiner or cashier, as long as he has the option "to alternate at will between a sitting and a standing position, and with no prolonged standing or walking." (Tr. 19). Because the ALJ found Palmer could perform other jobs in existence in the national economy, see Rossi v. Califano, 602 F.2d 55, 57 (3d Cir.1979), she found Palmer not disabled and denied him benefits.

Judge Scuderi issued a Report and Recommendation that the Commissioner's decision be upheld and summary judgment be granted in his favor. Palmer objected to Judge Scuderi's Report and Recommendation on the ground that Judge Scuderi erred in determining Palmer was capable of performing a limited range of sedentary work.

DISCUSSION

I. Standard of Review

The court conducts de novo review of the portions of a magistrate judge's Report and Recommendation on a dispositive motion to which specific objections have been filed. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).⁴

In reviewing the decision of the Commissioner, this court must uphold the denial of benefits as long as the Commissioner's determination is supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir.1986). "Substantial evidence is defined as the relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Maduro v. Shalala, No. 94-6932, 1995 WL 542451, at *1 (E.D.Pa. Sept.9, 1995) (Shapiro, J.); see Richardson, 402 U.S. at 401; Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). Substantial evidence is "more than a scintilla of evidence but may be somewhat less than a preponderance of the evidence." Maduro, 1995 WL 542451, at *1; see Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). The court cannot conduct de novo review of the Commissioner's decision or re-weigh the evidence of record. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986), cert. denied, 482 U.S. 905, 107 S.Ct. 2481, 96 L.Ed.2d 373 (1987).

II. Substantial Evidence of Palmer's Ability to Perform Limited Sedentary Work

Palmer claims the record lacks substantial evidence supporting the ALJ's conclusion that he has the residual functional capacity to perform limited sedentary work⁵ available in the national economy.

Palmer testified at his hearing that he can sit comfortably for a half hour at a time, although his left knee goes numb and the pain precludes him from sitting or standing for longer amounts of time. (Tr. 33). Palmer obtained treatment from Norman B. Stempler, D.O. ("Dr. Stempler") for his left knee from January 15, 1992 through June 6, 1995; Dr. Stempler performed three arthroscopic procedures on Palmer's knee. (Tr. 166-85, 238-63). The first surgery occurred on February 5, 1992; Palmer reported "resolution" of his left knee pain. (Tr. 176, 182-83, 260-61).

Palmer, complaining of renewed left knee pain, sought treatment from Dr. Stempler in July, 1993. (Tr. 175, 258-59). A CT scan of Palmer's knee performed on July 30, 1993 indicated no abnormalities. (Tr. 150, 174, 252, 257). After unsuccessfully using noninvasive treatment, Dr. Stempler performed a second arthroscopy on August 23, 1993. (Tr. 180, 253-54). According to subsequent physical therapy reports, Palmer's knee condition improved, although he required continued exercise and physical therapy. (Tr. 166, 169, 169, 173-74, 249-52).

Palmer had an MRI on his left knee on March 7, 1994. The MRI revealed "intrasubstance degenerative change of both posterior horns of lateral and medial meniscus," a "small joint effusion" and "a small popliteal cyst." (Tr. 185). The MRI also showed no evidence of a muscular tear, "grossly unremarkable" anterior horns and normal ligaments. Id. While there were signs of wear, Dr. Stempler found no evidence of "meniscal damage." (Tr. 172, 246).

On March 28, 1994, Dr. Stempler evaluated Palmer's ability to perform physical activities and concluded Palmer did not need a devise to aid in walking, although Palmer did occasionally use cane. (Tr. 161). Dr. Stempler determined Palmer could lift or carry up to ten pounds, stand or walk for up to two hours and sit or reach without difficulty. (Tr. 162-63). Dr. Stempler found Palmer was precluded from pushing or pulling due to his knee problem. Id.

After Palmer continued to complain of knee pain, Dr. Stempler performed a third arthroscopic procedure on July 22, 1994. (Tr. 159, 171-72, 242-43). Following this procedure, Palmer reported improvement in his left knee; Dr. Stempler recommended continued exercise. (Tr. 170, 241). In September, 1994, Palmer stated he exercised ten times a day, washed dishes, shopped, cooked "all kinds" of meals, and drove a car with an automatic transmission. (Tr. 131-35). Although Palmer complained of knee pain between October and December, 1994, Dr. Stempler found mild pain relievers⁶ and exercise sufficient. (Tr. 240-41).

Karl Rosenfeld, M.D. ("Dr. Rosenfeld"), evaluated Palmer on December...