VENTURINI v. ASTRUE, No. 2:2009cv00987 - Document 31 (W.D. Pa. 2011)

Court Description: MEMORANDUM JUDGMENT ORDER granting plaintiff's motion for summary judgment and denying 24 defendant's Motion for Summary Judgment. The case is remanded to the Commissioner of Social Security for further proceedings consistent with the court's Memorandum Judgment Order. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 3/23/11. (kw)

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VENTURINI v. ASTRUE Doc. 31 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JEFFREE N. VENTURINI, Plaintiff, v. Civil Action No. 09-987 MICHAEL J. AS TRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this of the parties' of March 2011, upon due consideration cross-motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner of Social applications Security for ("Commissioner" ) disability insurance denying benefits plaintiff's ("DIB") and supplemental security income ("SSI") under Title II and Title XVI, respectively, of the Social Security Act ("Act"), that plaintiff's motion for summary judgment IT IS ORDERED (Document No. 23)1 be, and the same hereby is, granted, and the Commissioner's motion for summary judgment (Document No. 24) be, and the same hereby is, denied. IIII.A072 (Rev, 8/82) This case will be remanded to the Commissioner pursuant lPlaintiff, who is a pro se litigant, filed a "Brief in Support of [his] Case Against S. S." (Document No. 23) ("plaintiff's Brief"), but failed to file a motion for summary judgment itself. The court is mindful of its obligation to liberally construe a pro se plaintiff's pleadings and submissions, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), thus we consider plaintiff's Brief, which includes factual averments and legal argument, to include his summary judgment motion as well. Dockets.Justia.com to sentence 4 of 42 U. S. C. §405 (g) for further proceedings consistent with this Memorandum Judgment Order. When the Commissioner determines that a claimant is not disabled within the meaning of the Act, the findings leading to such a conclusion must "Substantial scintilla. be based upon evidence has substantial been defined as 'more evidence. than a mere It means such relevant evidence as a reasonable mind might accept as adequate. '" (3d Cir. 1999) Plummer v. Apfel, 186 F.3d 422, 427 (citation omitted) . Despite the deference to administrative decisions required by this standard, reviewing courts \\, retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner's] evidence.'" decision is not supported by substantial Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). evaluating findings, whether sUbstantial \\ 'leniency [should] evidence be shown supports in an In ALJ's establishing the claimant's disability, and ... the [Commissioner's] responsibility to rebut it [should] be strictly construed .... ' II Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003), quoting, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). These well- established principles dictate that the court remand this case to the Commissioner for further proceedings consistent with this Memorandum Judgment Order. Plaintiff filed his applications for DIB and SSI on September 26, 2006, alleging disability beginning June 1, 2002. 'Aon (Rev. 8/82) - 2 - Plaintiff's applications were denied. hearing on May 14, At plaintiff's request, an ALJ held a at 2008, which unrepresented, appeared and testified. plaintiff, who was At the hearing, the ALJ informed plaintiff of his right to representation and indicated the could be postponed if plaintiff wished to obtain a representative. right to (R. 18). Plaintiff stated that he understood his representation, but elected to proceed without a (R. 18). representative. On September 2, 2008, the ALJ issued a decision finding that plaintiff is not disabled. The Appeals Council denied plaintiff's request for review on May 27, 2009, making the ALJ's decision the final decision of the Commissioner. The instant action followed. who has a high school education, was 48 years old at the time of the ALJ's decision and is classified as a younger individual under 416.963 (c) . the regulations. 20 C.F.R. §§404.1563(c), Plaintiff has past relevant work experience as a produce manager and a parking lot attendant, but he has not engaged in substantial gainful activity at any time since his alleged onset date of disability. After reviewing plaintiff's medical records and receiving his testimony at the hearing, the ALJ concluded that plaintiff is not disabled wi thin the meaning of plaintiff suffers spondylitis with from the the Act. severe occasional The ALJ found that impairments recurrent of iritis, ankylosing but those impairments, alone or in combination, do not meet or equal the criteria of any of the listed impairments set forth in Appendix 1 'A072 (Rev. 8182) - 3 - of 20 C.F.R., Subpart P, Regulation NO.4 ("Appendix I"). The ALJ also found that plaintiff retains the residual functional capacity2 to perform a full range of medium work (the "RFC Finding"). The ALJ then concluded that plaintiff could not perform his past work, but his vocational factors and residual functional capacity permit him to make an adjustment to other work that exists in significant numbers in the national economy. Accordingly, the ALJ concluded that plaintiff is not disabled within the meaning of the Act. The.Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental of which can be expected to last for a continuous period at least 1382c(a) (3) (A). twelve months. 42 U.S.C. §§423 (d) (1) (A) , The impairment or impairments must be so severe that the claimant "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 .... " 42 U.S.C. §§423 (d) (2) (A), 1382c(a) (3) (B). The Commissioner has promulgated regulations that incorporate a five-step sequential evaluation process for determining whether a claimant is disabled. The ALJ must determine: (1) whether the 2Residual functional capacity is defined as that which an individual still is able to do despite the limitations caused by his impairments. 20 C.F.R. §§404.1545(a) (1), 416.945(a) (1). In assessing a claimant's residual functional capacity, the ALJ considers the claimant's ability to meet the physical, mental, sensory . and other requirements of work. 20 C. F. R. §§404.1545(a) (4), 416.945(a) (4). (Rev. 8/82) - 4 - claimant is currently engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals the criteria listed in Appendix 1; (4) if not, whether the claimant's impairment performing his past relevant work; and prevents (5) if so, him from whether the claimant can perform any other work that exists in the national economy, residual in light of his age, functional 416.920 (a·) (4). education, capacity. 20 work experience and C.F.R. §§404.1520(a) (4), If the claimant is found disabled or not disabled at any step, further inquiry is unnecessary. Plaintiff argues that the ALJ erred Id. in finding him not disabled at step 5 of the sequential evaluation process. particular, plaintiff suppressed or altered. alleges that certain evidence In addition, has In been plaintiff claims the ALJ failed to adequately develop the record because he did not issue a subpoena for records from Dr. Chris Allen, he denied plaintiff an opportunity to submit information about his work history, and he did not allow plaintiff to view or comment on the record. After reviewing the record in this case, the court concludes that plaintiff's allegation concerning the suppression or alteration of evidence' is· wholly unsubstantiated. In addition, plaintiff's that he was denied an opportunity to submit information about his work history and precluded from viewing or commenting on the record transcript. are contradicted However, adequately develop the by the court finds administrative hearing that the ALJ failed to record concerning plaintiff's physical 'Aon (Rev. 8/82) the - 5 capabilities and limitations. For that reason, this case must be remanded to the Commissioner for additional development at step 5 of the sequential evaluation process. It is well-established that "ALJs have a duty to develop a full and fair Shalala, record 55 F. 3d 900, in social 902 security cases. (3d Cir. 1995). /I Ventura v. The ALJ's duty to develop a full and fair record is heightened in cases where, as here, a claimant is unrepresented. F.2d 342, 345 (3d Cir. 1980) i Livingston v. Califano, 614 Dobrowolsky, 606 F.2d at 407. In fulfilling the duty to help a pro se claimant develop the record, an ALJ must scrupulously and conscientiously probe into, inquire of and explore all the relevant facts. Reefer, 326 F.3d at 380. In his decision, record of the ALJ concluded that the evidence of plaintiff's claim of total disability. that conclusion, the ALJ referenced the consultative examinations plaintiff underwent, note from Dr. Nisenbaum, spondylitis. (R. 13). results and a In support of three treatment who plaintiff saw for his ankylosing The ALJ relied on the opinion of one of the consultative examiners, Dr. Laufe, to conclude that plaintiff has the residual functional capacity to perform the full range of medium work (R. 12), which involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. ... 20 C.F.R. §§404.1567(c), 416.967(c) . " Despite ultimately concluding that plaintiff has the residual functional capacity to perform medium work, the ALJ never inquired (Rev. 8/82) - 6 - into plaintiff's ability to perform the physical requirements of such work. Although the ALJ generally asked plaintiff about his daily activities, (R. 39 40), and asked whether he had difficulty sitting or standing, questions (R. 36), he did not ask plaintiff specific concerning his ability to perform the physical requirements of basic work activities such as walking, standing, sitting, lifting, handling. ALJ See indicated pushing, pulling, reaching, carrying, or 20 C.F.R. §§404.1521(b) (1), 416.921(b) (1). he was interested in the practical plaintiff's medical condition on his ability to work, The effect of (R. 44-45), but he never specifically asked plaintiff whether he was capable of performing particular physical activities or how long he could sustain the activities he is capable of performing. the ALJ's failure to elicit specific information In light of from this unrepresented plaintiff concerning his functional limitations, a remand is required. See Gauthney v. Shalala, 890 F. Supp. 401, 410 (remanding where the ALJ failed to elicit (E.D. Pa. testimony about limitations) 2009) 1995) i the details plaintiff's of functional Pryor v. Astrue, 2009 WL 890581 (W.D. Pa. Mar. 27, (remanding where the ALJ failed to adequately develop the record by neglecting to ask the claimant specific questions concerning his functional limitations). The court also is concerned by the ALJ's failure to obtain the medical records of Dr. deemed hearing, it unnecessary plaintiff to Chris Allen, do so. indicated he - 7 - 'IlhAon (Rev. 8/82) or to explain why he During tried the to administrative request medical information from information. Dr. Allen, (R. 24-25). but was unable to obtain that Before the hearing concluded, the ALJ indicated he would get Dr. Allen's records if plaintiff completed a release form authorizing him to do so. indication in the record if plaintiff (R. 49). There is no completed the required release form, or if the ALJ made any attempt to obtain Dr. Allen's records. Although the ALJ was not required to issue a subpoena for Dr. Allen's records if he believed that such evidence was not reasonably necessary for a full presentation of the case, see 20 C.F.R. §§404.950(d) (1), 416.1450(d) (1), the ALJ did not explain if he deemed the records unnecessary or why they otherwise were not obtained. 3 This matter therefore must be addressed on remand. On remand, plaintiff the ALJ shall concerning requirements of work, sit, lift, push, pull, his elicit ability to specific perform testimony from the physical particularly his ability to walk, reach, carry and handle. stand, Depending on plaintiff's testimony concerning his functional capabilities and limitations, the ALJ shall, if necessary, residual functional capacity. vocational expert plaintiff's case. reassess plaintiff's If warranted, the ALJ shall obtain testimony to complete his analysis of In addition, the ALJ shall consider whether Dr. Allen's records are required to fully consider plaintiff's case and, if the ALJ deems it necessary, he shall attempt to obtain 3The court recognizes that plaintiff treated with Dr. Allen prior to his alleged onset date of disability, but nevertheless concludes the ALJ should have explained why he did not obtain Dr. Allen's records after he indicated his intent to do so. "AD 72 (Rev. 8/82) - 8 - those records, or otherwise explain why they are not pertinent to his anaiysis. For the foregoing reasons, plaintiff's motion for summary judgment will be granted, the Commissioner's motion for summary judgment will be denied, Commissioner for and this case will be remanded to the further proceedings consistent with Memorandum Judgment Order. cc: Gustave Dlamond United States District Judge Jeffree N. Venturini 5425 Penn Avenue Pittsburgh, PA 15206-3423 Christy Wiegand Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 'IIIA072 (Rev. 8/82) - 9 - this

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