GMITTER v. ASTRUE, No. 2:2009cv00715 - Document 28 (W.D. Pa. 2010)
Court Description: MEMORANDUM OPINION and ORDER denying 22 Motion for Summary Judgment and granting 26 Motion for Summary Judgment. Signed by Chief Judge Gary L. Lancaster on 9/10/10. (map)
Download PDF
<![CDATA[
GMITTER v. ASTRUE Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICTIOF PENNSYLVANIA I CINDY GMITTER, OIBIO RONALD 1. GMITTER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 715 MEMORANDUM OPINION AND ORDER OF COURT This is an appeal from the final decision of the Commissioner of Social Security denying Plaintiffs claim for disability insurance benefits un4er Title II of the Social Security Act. Jurisdiction is proper pursuant to 42 U.S.C § 405(g). Cindy Gmitter, on behalf of Ronald I 1. Gmitter, alleges that the Administrative Law Judge'si ("ALJ") decision that Mr. Gmitter is not disabled, and therefore not entitled to disability insurande benefits, should be reversed because the ALJ failed to afford proper weight to the medical and that there is new evidence requiring I a remand under sentence six of 42 U.S.C. § 405(g). I. Standard of Review When reviewing a decision denying DIB and the district court's role is limited to determining whether substantial evidence exists in the rerrd to support the ALl's findings of fact. Burns v. Barnhart, 312 F.3d 113,118 (3d Cir. 2002). su,stantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a re4sonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900,901 (3d Cir. 1995)(quoting Richardson v. Perales. 402 U.S. 389, 1 Dockets.Justia.com 401 (1971 )). Additionally, ifthe ALl's findings of fact I supported by substantial evidence, they I are conclusive. 42 U.S.C. § 405(g); Richardson, 402 uls. at 390. a de novo review ofthe Commissioner's decision nor A district court cannot conduct i evidence ofrecord. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). To determine a finding is supported by substantial evidence, however, the district court must review the reford as a whole. See 5 U.S.C. §706. To be eligible for social security benefits under Act, a claimant must demonstrate that he I cannot engage in substantial gainful activity because ofa determinable physical or mental I , impairment which can be expected to result in death or which has lasted or can be expected to last u.s.d §423(d)(1)(A); Brewster v. Heckler, 786 for a continuous period of at least 12 months. 42 F.2d 581, 583 (3d Cir. 1986). i I ! The ALJ must utilize a five-step sequential analYfiS when evaluating the disability status of I each claimant. 20 C.F.R. §404.1520. The ALJ must detetjrnine: (1) whether the claimant is currently i engaged in substantial gainful activity; (2) if not, whethttr the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or subpt. P., appx. 1; (4) whether the claimant's the criteria listed in 20 C.F.R., pt. 404 prevent him from performing his past relevant work; and (5) ifthe claimant is incapable his past relevant work, whether he can perform any other work which exists in the national Ieconomy. 20 C.F.R. §404.l520(a)(4). If the claimant is determined to be unable to reSUIllle previous employment, the burden shifts 1 to the Commissioner (Step 5) to prove that, given Plainjiffs's mental or physical limitations, age, education, and work experience, he or she is able to pdrform substantial gainful activity in jobs I available in the national economy. Doak v. Heckler, 7901 F.2d 26, 28 (3d Cir. 1986). 2 II. Procedural History Ronald Gmitter protectively filed an application fpr Disability Insurance Benefits on October 10, 2006. (R. at 10). He alleged a disability onset djate of July 31, 2006 due to pancreatitis, depression and a sleep disorder. (R. at 10, 101). I Gmitter's claim was denied on April 19, I 2007 and a hearing before an ALJ was requested on May 3,2007. (R. at 27,34). Ronald Gmitter died of a myocardial infarction on March 16, 2008, prior to the hearing before the ALJ. (R. at 10). i On August 26, 2008, Ronald Gmitter' s wife, Cynthia as a party for Ronald Gmitter's claim and she requested gave notice that she was substituting a decision by the ALJ be made without I a hearing. (R. at 40.) On October 21,2008, the ALJ decided that Ronald Gmitter had not been under a disability through the date of the decision and his death was not due to a medically determinable impairment prior to the date of his death) (R. at 10-18). On March 26,2009, the Appeals Council denied the request for review ofthe I decision. (R. at 1-3). After exhausting all administrative remedies, Plaintiff commenced this aCtion against the Commissioner pursuant to 42 U.S.C. § 405(g) on June 3, 2009. (Docket No.1). , In his decision, the ALJ determined that Ronald 4mitter was not disabled at the fifth step of I the sequential evaluation process. (R. at 17-18). He foundlthat Ronald Gmitter suffered from chronic pancreatitis secondary to alcohol abuse, excessive daytidle sleepiness (possibly narcolepsy), major depression, alcohol and marijuana abuse, which were diemed to be severe impairments under 20 C.F.R. §404.l521 et seq. (R. at 12). The ALJ determintd that these impairments did not meet or I medically equal the listed impairments found in 20 C.F .R. Pt. 404, Subpt. P., Appx. 1. (R. at 14). i The ALJ found that Ronald Gmitter was unable to return to his past relevant work, however, he I would have the residual functional capacity to performllight work as defined in 20 C.F.R. 404. : i 3 1567(b) except that he can perform simple, repetitive work that does not require driving of a motor I vehicle or exposure to hazardous operations or unprotected heights. (R. at 15-17). The ALJ concluded that jobs falling within the confines of Ron<;tld Gmitter's residual functional capacity I i existed in significant numbers in the local and national 9conomy and he was therefore not disabled 1 under the Act.(R. at 17-18). III. Discussion In support of the motion for summary judgement, Plaintiff argues that the case should be remanded back to the Commissioner for two reasons. First, that the additional evidence cited by Plaintiff indicates that Ronald Gmitterhad a medically impairment that caused his death I and the evidence should be considered by the Comrnissi04er thus requiring remand. See (Docket No. I 23-1). Second, that the ALJ failed to properly consider the extent of Ronald Gmitter's limitations I arising due to his blackouts and excessive daytime sleePi1ess. The Court will address each argument in turn. The Commissioner's brief points out, in regards Ito Plaintiff s first argument, the evidence cited was not before the Commissioner and thus can only warrant remand under sentence six of 42 U.S.C. §405(g). The cover letter attached to the Counsel is dated June 4, 2009, which is one day after this evidence that was sent to the Appeals I was filed in this Court. (Docket No. 23-1 at I). The Appeals Counsel had denied Plaintiffs rtquest for review on March 26,2009, thus I the Commissioner's decision was already final when the additional evidence was sent. (R. at 1-3). Furthermore, the Appeals Counsel no longer had ofthis case, as the appeal to the District Court was filed on June 3, 2009. As a result, the additiqnal evidence cited by Plaintiff at (Docket I I No. 23-1) must be considered under sentence six of 42 V.S.C. §405(g). i I i 4 The sixth sentence of § 405(g) provides, in part, that the Court "may at any time i order additional evidence to be taken before the of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior 42 U.S.C. § 405(g). Thus, the Court is empowered to order the taking of additional before the Commissioner, provided i i that Plaintiff demonstrates that there is "new evidence tvhich is material" to the ultimate issue of ! ! disability in this case, and that there was "good cause" 4r the failure to incorporate such evidence into the record during the course ofthe proceedings i , , available at the time of the administrative the ALJ. Evidence is "new" ifit was not and if it is not merely cumulative of preexisting evidence. Szubak v. Secretary of Health & Human Services, 745 F.2d 831,833 (3d Cir.1984). Evidence is "material" if(1) it relates "to the titne period for which benefits were denied" and (2) there is a reasonable probability that the Commissioner's decision would have been different i i i had it been considered. Kelley v. Commissioner ofSodpi Security, 566 F.3d 347, 351, n. 11 (3d I ! Cir.2009); Jens v. Barnhart, 347 F.3d 209, 214 (7th Cir-!2003); Szubak, 745 F.2d at 833. The Commissioner argues that the evidence ! by Plaintiff fails to meet all three I requirements for a sentence six remand. The Court First the evidence is dated January 10, 2008, which was three months prior to Ronald Gmitter's death and almost eight months prior to i substitution ofparties and request to wave a hearing. (R. at 40.) In the letter to the Appeals Counsel, sent after their final decision, Plaintiff stated that the refords were unavailable and not attainable prior to the ALl's decision due to administrative and issues involving the creation of Ronald i Gmitter's estate. (Docket 23-1). The Commissioner poi1ts out, however, that Plaintiff had already I I requested 30 days to submit additional evidence to the ALJ on September 3, 2008, due to issues I 5 involving Ronald Gmitter's estate and at that point the e:vidence now cited was ten months old. (R. at 19.) As a result, Plaintiff has not provided a sufficient why the additional evidence cited ! was not available at the time of the administrative procgedings thus it cannot be considered "new" for purposes of a sentence six remand. As to "material" the Commissioner argues that th¢ evidence cited by Plaintiff would not have I changed the ALJ' s decision because the evidence does not provide a connection to Ronald Gmitter' s I I cause ofdeath, a myocardial infarction. The CT scan by Plaintiff states that a moderate amount I I of coronary calcifications were found, however, there I was no other significant lower thoracic , abnormalities found. (Docket No. 23-1 at 2.) The COJI¥llissioner states that this would not have provided a basis for the ALJ to conclude that Ronald y-mitter had severe cardiac impairments. ! Indeed, in the post-procedure report, all that is discufsed by the treating physician is Ronald , Gmitter's pancreatitis and nothing else is said about the pOfOnary calcifications. (Docket No. 23-1 at 5.) Other than the one passing line, nothing else stated that would indicate that had any cardiac impairments. As a result, the additional evidence cited would not have changed the ALl's I I decision that heart disease was not a medically determintble impairment prior to Ronald Gmitter's death. Finally, as to "good cause" the Commissioner points out that Plaintiff has not given a reason I justifying the late submission of evidence. Although addressed in his brief, Plaintiff did state I I in the cover letter to the Appeals Counsel that the reqords were not available due to ongoing i administrative and legal issues with Ronald Gmitter's estate. This does not explain, however, why after fifteen months from Ronald Gmitter' s death, the medical records became available. As a result, I Plaintiffs reason for the delay (albeit not found in the brief) is too vague of a reference to the i 6 unavailability of the evidence and is thus insufficient to !establish "good cause" within the meaning of sentence six. As noted by the United States Court of!' Appeals for the Third Circuit: ! We should encourage disability claimantto present to the ALJ all relevant evidence concerning the claima t's impairments. Ifwe were to order remand for each item of new. d material evidence, we would open the door for claimants to withhold evidence from the ALJ in order to preserve a reason for remand. Instead, we believe that it is a much sounder policy to require claimants to present all material evidence to the ALl and prohibit judiciftl review of new evidence it brought before the ALl unless there is good reason for not Such a holding is instrumental to the sp4dy and orderly disposition of Social Security claims. . Matthews v. Apfel, 239 F.3d 589,595 (3d Cir. 2001)(h1ternal citations, quotations and footnotes omitted). Therefore, the additional evidence cited by Plaintiff does not meet the criteria for a sentence six remand. The second issue raised by Plaintiff is that ALJ did not properly consider all the ! limitations arising from the severe impairments of exlcessive daytime sleepiness and possible narcolepsy. The ALl found the following in regards to Ronald Gmitter's blackouts: In terms of the claimant's alleged epi odes of blacking out, the hazards presented by his excessive day ime sleepiness have been accommodated by restricting against th performance of activities that would require or involve such hazar s. However, only a small portion of the jobs available in the natio al economy involve such hazardous activities. . (R. at 16.) The ALJ went on to find that Ronald Gmittet could not perform his past relevant work as a warehouse worker due to the exposure to hazardous ,quipment, however, it was concluded that Ronald Gmitter could perform jobs that were there was I exposure to hazardous equipment. Plaintiff argues that the finding that Plaintiff could not perform his past relevant work should have precluded him from working any job. Plaintiff dobs not cite, however, any evidence in the 7 i record to indicate that the residual functional capacity by the ALJ did not fully cover all ofRonald Gmitter's limitations. Likewise, there is no citation indicating why the ALJ's finding that there existed other jobs without exposure to hazardous Iequipment is not supported by substantial evidence. As a result, in reviewing the record as a whole, substantial evidence supports the ALJ's i residual functional capacity assessment and findings thalt Plaintiff could have worked other jobs in i I the economy that did not have exposure to hazardous equipment or unprotected heights. IV. Conclusion In viewing the record as a whole, substantial decision and therefore it will be affirmed. An appropriate Order follows. 8 supports the Commissioner's final i IN THE UNITED STATES D1STRICT COURT FOR THE WESTERN DISTRICT, OF PENNSYLVANIA CINDY GMITTER, OIBIO RONALD J. GMITTER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. AND NOW, this l6 ) ) ) ) ) ) ) ) ) ) ) Ci'fil Action No. 09-715 ORDER I : day of September, 201b, and for the reasons set forth in the \ accompanying Memorandum Opinion, IT IS HEREBY that the Plaintiffs Motion for I Summary Judgment [Doc. No. 22] is DENIED, and the Motion for Summary Judgment I [Doc. No. 26] is GRANTED. Gary L. Lancaster Chief United States District Judge cm: All parties of record. 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
