MURRAY v. ASTRUE
Filing
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MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED. THIS CASE IS REMANDED TO THE COMMISSIONER; ETC.. SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 8/1/13. 8/1/13 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN E. MURRAY
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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YOHN, J.
CIVIL ACTION NO. 12-6527
August 1, 2013
MEMORANDUM
Plaintiff, John E. Murray brings this action under 42 U.S.C. § 405(g), seeking judicial
review of the decision of the Commissioner of Social Security (the “Commissioner”) denying his
claim for disability insurance benefits under Title II of the Social Security Act (the “Act”). I
referred the matter to a magistrate judge, who submitted a report and recommendation
recommending that I deny summary judgement to plaintiff, but remand for the taking of
testimony from a vocational expert. Defendant objected to the magistrate judge’s report and
recommendation of remand. For the following reasons I will overrule defendant’s objection and
remand this case to the Commissioner to consider evidence of nonexertional limitations.
I.
BACKGROUND
On April 24, 2010, Murray applied for disability insurance benefits, alleging that he had
been disabled since June 13, 2007, because of limitations in his right ankle. (R. 115). Murray’s
application for benefits was denied on August 27, 2010. (R. 49.) Subsequently, Murray requested
a hearing de novo before an Administrative Law Judge (“ALJ”). (R. 54.) The ALJ conducted the
hearing on June 22, 2011, at which he received testimony from Murray who was represented by
counsel. (R. 24.) On July 28, 2011, the ALJ issued a written decision denying benefits. (R. 13.)
Murray filed a timely request for review, but the Appeals Council denied Murray’s request and
permitted the ALJ’s decision to stand as the final decision of the Commissioner. (R. 1.)
After the Commissioner’s denial, Murray filed a complaint with this court for review of
the final decision denying benefits. In his motion for summary judgement or remand, Murray
contends that the ALJ assigned to his case erred in three respects: (1) the ALJ should have found
Murray to meet or medically equal Listing 1.02, see 20 C.F.R. Pt. 404, Subpt P, App. 1 § 1.02,
which would have required a finding of “disabled”, and also should have scheduled a medical
expert to testify regarding this issue; (2) the ALJ improperly relied on the Medical-Vocational
Guidelines (“Grids”); and (3) the ALJ improperly found that Murray’s subjective complaints
were not entirely credible. (Pl.’s Mot. for Summ. J. or Remand (Pl.’s Mot.) at 10, 15, 19.)
The magistrate judge concluded that the ALJ did not err in finding that Murray did not
meet or equal listing 1.02 and medical expert testimony was not required for that issue; however,
he determined that the ALJ improperly relied on the Grids to determine if plaintiff is disabled.
(Report & Recommendation at 5, 8.) Accordingly, the magistrate judge recommended remand for
taking of testimony from a vocational expert. (Id.) The magistrate judge did not explicitly discuss
plaintiff’s argument that the ALJ did not give appropriate weight to Murray’s subjective
complaints.
Plaintiff made no objections to the magistrate judge’s report and recommendations.
Defendant objected to the magistrate judge’s recommendation that the ALJ’s reliance solely on
the Grids was in error and that the case should be remanded for testimony from a vocational
expert. (Objections to the Report & Recommendation of the Magistrate (“Def.’s Objections”) at
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2.)
II.
STANDARD OF REVIEW
When evaluating a claim for disability, the Commissioner conducts a five-step sequential
analysis as codified in the regulations. 20 C.F.R. § 404.1520; see also Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 91 (3d Cir. 2007). The Commissioner determines (1) whether the claimant
engaged in “substantial gainful activity” during the alleged period of disability; (2) whether the
claimant has a severe physical or mental impairment that significantly limits his or her ability to
perform basic work activities; (3) whether the impairment meets or is medically equivalent to
one of the “listed impairments” in appendix 1 of the regulations; (4) whether the claimant has the
“residual functional capacity” to perform “past relevant work”; and (5) whether, given the
claimant’s residual functional capacity, age, education, and work experience, the claimant can
perform “other work” in the national economy. 20 C.F.R. § 404.1520(a)(4); see also Poulos, 474
F.3d at 91-92.
A district court’s review of the Commissioner’s decision is deferential. A district court
may review the Commissioner’s “factual findings only to determine whether the administrative
record contains substantial evidence supporting the findings.” Allen v. Barnhart, 417 F.3d 396,
398 (3d Cir. 2005). As the Supreme Court has explained, “[s]ubstantial 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.’” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “Despite the deference
to administrative decisions implied by this standard, [] courts retain a responsibility to scrutinize
the entire record and to reverse or remand if the [Commisioner’s] decision is not supported by
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substantial evidence.” Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
I review de novo the parts of the magistrate judge’s report and recommendation to which
a party objects. 28 U.S.C. § 636(b)(1)(C). I may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate.” Id.
III.
DISCUSSION
As no party has objected to the magistrate judge’s recommendation that the ALJ did not
err in finding that the plaintiff did not meet or equal listing 1.02, I will affirm the
Commissioner’s ruling that plaintiff did not meet or equal listing 1.02. Accordingly, plaintiff’s
request for summary judgment or remand on this issue will be denied.
Because plaintiff made no objections to the Report and Recommendation, it is unclear if
plaintiff still contends that the ALJ improperly found that Murray’s subjective complaints were
not entirely credible. However, because the magistrate judge did not explicitly discuss this
argument, I will briefly explain why plaintiff’s argument fails. “Credibility determinations as to a
claimant’s testimony regarding pain and other subjective complaints are for the ALJ to make.”
Malloy v. Comm’r of Soc. Sec., 306 F. App’x. 761, 763 (3d Cir. 2009) (internal citations
omitted). “However, the A.L.J. must explain the reasons for his or her credibility
determinations.”Ayers v. Astrue, 724 F. Supp. 2d 471, 479 (D. Del. 2010) (citing Schonewolf v.
Callahan, 972 F.Supp. 277, 286 (D. N.J. 1997)). “Inconsistencies in a claimant’s testimony or
daily activities permit an ALJ to conclude that some or all of the claimant’s testimony about her
limitations or symptoms is less than fully credible.” Id. (quoting Garrett v. Comm’r of Soc. Sec.,
274 Fed. Appx. 159, 164 (3d Cir.2008)).
In this case, I am persuaded that the ALJ properly discussed and analyzed plaintiff’s
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credibility with regard to his subjective complaints and there is substantial evidence to support
his finding. Specifically, the ALJ based his determination on the variety of daily activities that
plaintiff stated he was capable of performing and on objective medical evidence, including recent
x-rays and a negative straight leg raise test. (R. at 18.) Thus, “[i]n view of the evidence presented
in the record and of the ALJ’s opportunity to observe the demeanor and to determine the
credibility of the claimant, these findings are entitled to great weight and [will] be upheld.”
Malloy, 306 F. App’x at 765 (internal citation omitted). Therefore, plaintiff’s request for
summary judgement or remand regarding whether the ALJ improperly found that Murray’s
subjective complaints were not entirely credible will be denied.
Accordingly, the only issue left to resolve is defendant’s objection to the magistrate
judge’s recommendation of remand for testimony from a vocational expert because of the ALJ’s
improper reliance on the Grids. The magistrate judge concluded that the ALJ’s sole reliance on
the Grids was improper in determining if plaintiff was disabled because the ALJ had found that
Murray had exertional and nonexertional limitations. (Report & Recommendation at 8.) When a
plaintiff suffers from nonexertional limitations, the Grids can only be used as a framework for
decision making and the ALJ must rely on other evidence that plaintiff is capable of finding
work, such as a vocational expert. See 20 C.F.R. § 404.1569a(d); see also Sykes v. Apfel; 228
F.3d 259, 270 (3d Cir. 2000).
In its motion, defendant contested that the ALJ found Murray to suffer from
nonexertional limitations. The magistrate judge, however, disagreed with the defendant and
explained that the ALJ must have concluded that Murray suffers from nonexertional limitations
based on the state reviewing physician Dr. Leo P. Potera’s findings of nonexertional limitations
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and the ALJ’s language in his decision discussing plaintiff’s nonexertional limitations. In his
written opinion the ALJ included a paragraph that stated “the claimant retains the ability to
perform at least 5 separate occupations, despite his/her nonexertional limitations. Therefore it is
found that the claimant’s nonexertional limitations do not significantly erode the base of
sedentary jobs . . . .” (R. at 20.) Additionally, the magistrate judge stated that Dr. Potera found
the following nonexertional limitations: “an inability to climb, balance, stoop, kneel, crouch or
crawl more than occasionally, as well as a need to avoid concentrated exposure to humidity,
fumed, and hazards such as machinery or heights.” (Report & Recommendation at 7.)
Defendant does not dispute that a finding by the ALJ of nonexertional limitations
prevents an ALJ from relying solely on the Grids. Defendant disputes, however, that the ALJ
found that Murray suffered from nonexertional limitations. Specifically, defendant asserts that
the ALJ’s mention of nonexertional limitations was “a typographical error” and included
“inadvertently.” Defendant requests that I ignore this reference and reject the magistrate judge’s
recommendation of remand for vocational testimony. (Def.’s Objections at 2.)
I have no basis to find that a portion of the ALJ’s decision was included inadvertently and
in error. Moreover, it is unclear if defendant is correct in asserting that the ALJ’s mention of
plaintiff’s nonexertional limitations was a typographical error. Specifically, defendant argues that
the ALJ’s mention of nonexertional limitations must have been in error because in his decision
the ALJ also stated that Murray had a “residual functional capacity for the full range of sedentary
work.” (R. at 16.) (emphasis added.) While the ALJ’s conclusion that Murray had a functional
capacity for the full range of sedentary work does imply that the ALJ found that Murray did not
suffer from nonexertional limitations, Dr. Potera, whose testimony was accorded substantial
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weight by the ALJ, stated that Murray had nonexertional limitations listed above. (R. at 356-59.)
Additionally, as the magistrate judge noted, the ALJ never explicitly discounted or disputed Dr.
Potera’s finding of non-exertional limitations. (R. at 18-19.) Accordingly, it seems possible that
the ALJ did mean to include the paragraph about Murray’s nonexertional limitations because he
agreed with Dr. Potera that plaintiff suffered from them. If this is the case, the magistrate judge
correctly recommended remand for testimony from a vocational expert to discuss how plaintiff’s
nonexertional limitations affect his ability to work, and the ALJ must follow this direction. See
20 C.F.R. § 404.1569a(d); see also Sykes, 228 F.3d at 270. This is not to say that the ultimate
decision of the ALJ will eventually be changed, only that the issue of nonexertional limitations
must be properly addressed.
Even if defendant is correct that the ALJ did not intend to find that Murray suffered from
nonexertional limitations, and accordingly, use of the Grids was appropriate, the issue must still
be remanded because the ALJ did not discuss his decision to dismiss Dr. Potera’s findings of
nonexertional limitations. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (“Although
the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence
that he rejects and his reason(s) for discounting that evidence.”) (citation omitted); see also
Versace 2002 WL 1880526, at *7 (ordering remand because the ALJ had failed to discuss
objective evidence of plaintiff’s nonexertional limitations.”). Accordingly, even if the ALJ
determined that Murray did not suffer from nonexertional limitations, on remand, the ALJ must
explain his reasons for discounting Dr. Potera’s finding of nonexertional limitations. Therefore,
the matter will be remanded to the Commissioner for further consideration.
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IV.
CONCLUSION
Defendant’s objection to the magistrate judge’s recommendation of remand and request
that I affirm the Commissioner’s decision will be overruled. I will deny summary judgement for
plaintiff but remand this case to the Commissioner to consider evidence of nonexertional
limitations.
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