Nelson v. Sullivan

739 F. Supp. 982, 1990 U.S. Dist. LEXIS 7083, 1990 WL 78152
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 8, 1990
DocketCiv. A. No. 88-4897
StatusPublished

This text of 739 F. Supp. 982 (Nelson v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Sullivan, 739 F. Supp. 982, 1990 U.S. Dist. LEXIS 7083, 1990 WL 78152 (E.D. Pa. 1990).

Opinion

MEMORANDUM

LOUIS H. POLLAK, District Judge.

This action, an appeal of a denial of Social Security Disability Benefits, was filed in June of 1988. On October 12, 1988, this matter was referred to Magistrate William F. Hall, Jr., for the preparation of a report and recommendation on cross-motions for summary judgment.2 On December 5, 1989, a report and recommendation was filed, recommending that plaintiff’s motion for summary judgment be granted and the government’s motion denied. The government filed a timely objection to the recommendation.

Magistrate Hall first recommends reversal of the decision of the Administrative Law Judge (“ALJ") on the ground that the decision was not supported by substantial evidence. Magistrate Hall found the ALJ’s reliance on a hypothetical posed to the vocational expert contrary to the findings of fact subsequently made by the ALJ, and further questioned the reliance of the AU on the reports of non-treating Health and Human Services doctors. As a whole, he found the record insufficient to support the conclusion of the AU that Ms. Nelson is not disabled. Magistrate Hall also recommends that benefits be awarded without remand because there is “adequate evidence in the record to find [the] plaintiff is disabled.’’ Report and Recommendation, p. 14.

In its objection, the government challenges both of Magistrate Hall’s recommendations, asserting that the vocational expert’s testimony supports the finding of the AU there is an inconsistency and that in any event, any inconsistency is irrelevant, because:

[vocational expert testimony was not required in this case because the Administrative Law Judge did not find that plaintiff’s ability to perform the full range of medium work was reduced by any exer-tional or non-exertional limitations. See Washington v. Heckler, 756 F.2d 959, 967 (3d Cir.1985).

Objection, pp. 1-2. The government also contends that the record, in its entirety, supports the decision of the AU.

I.

The government’s first two objections miss the thrust of the Report and Recommendation. As pointed out by Magistrate Hall, the AU stated in his opinion that he placed great weight on the testimony of the vocational expert, Bruce B. Martin, and particularly relied on his testimony that “there [were] jobs available the claimant could perform,” and his enumeration of particular jobs he thought would be suitable. Decision, T.R. p. 12. Having stated that he relied on Mr. Martin’s testimony, the AU’s use of the testimony is subject to review, whether or not the AU was required to seek that expertise.

The expert testimony relied upon by the AU was elicited as a response to a hypothetical proposed by the AU, in which the AU assumed, among other factors, that [984]*984the plaintiff could stand or sit for 6-8 hours. In response to the hypothetical, the vocational expert testified that there were several jobs in the workforce open to someone of those capabilities.

The troubling feature of the AU’s decision is that the AU, having posed the hypothetical assuming 6-8 hours of standing or sitting, and having stated his reliance on the testimony elicited by that set of characteristics, then found:

the claimant is able to stand and walk for approximately one or two hours without interruption, able to sit for about one or two hours without interruption, able to alternate between sitting and standing

Decision, T.R. 12. It appears that, in making this finding, the AU was relying on the opinion of treating physician Dr. Arnold Lincow, the only physician to state any limitations about Ms. Nelson’s tolerance for sitting and standing. Dr. Lin-eow’s assessment was that, in an 8-hour work day, Ms. Nelson could stand or walk for a total of 1-2 hours, and could sit for a total of 1-2 hours. T.R. at 224. In the light of this finding, plaintiff argues, and Magistrate Hall agrees, that the AU’s reliance on the vocational expert’s testimony is suspect.

In the light of this apparent confusion about Ms. Nelson’s sitting and standing capacities, I agree with Magistrate Hall that the AU’s conclusion that Ms. Nelson can perform the full range of medium work is not supported by the evidence.3 For this reason, I agree with Magistrate Hall’s recommendation that the denial of disability benefits be reversed.

II.

Magistrate Hall next concludes that remand would only cause delay, because the record clearly supports a finding of disability. I disagree. In my review of Ms. Nelson’s medical history4 I find it impossible to conclude, as Magistrate Hall does, that the evidence clearly supports disability. Magistrate Hall states:

[T]he [vocational expert] testified that if plaintiff could only sit, stand or walk for a maximum of two hours out of an eight hour day, she could not meet the exer-tional requirements of any level of work. The AU, however, erroneously found, despite the opinion of the [vocational expert], that plaintiff would do medium work, even though he accepted the limitations as set forth in Dr. Lincow’s report. Therefore, since the record shows that if plaintiff was limited as described by Dr. Lincow, and since the AU accepted Dr. Lincow's findings, he could only conclude that plaintiff was disabled.

Report and Recommendation, p. 14. As noted previously, it is my reading of Dr. Lincow’s report, a three-page questionnaire attached to the claimant’s benefits application, that Ms. Nelson is able to sit, stand or walk for a total of 2-4 hours of an eight hour work day. Thus, even if one accepts both the report of Dr. Lincow and the testimony of the vocational expert, Ms. Nelson is not clearly disabled.

[985]*985Nor is the balance of the record dispositive. Where “substantial and uncon-tradicted” evidence in the record supports a finding of disability, reversal without remand is proper. Gilliland v. Heckler, 786 F.2d 178, 185 (3d Cir.1986). In this case the medical reports of Ms. Nelson’s condition, taken cumulatively, are inconclusive.5 The medical reports, taken as a group clearly support the conclusion that Ms. Nelson is unable to perform past work. And some of the reports offer a basis for the conclusion that Ms. Nelson is incapable of performing medium work as described in the federal regulations. But it is not clear on the record as a whole, that the AU “could only conclude that plaintiff [is] disabled.” Report and Recommendation, p. 14.

For this reason, I do not adopt Magistrate Hall’s recommendation that benefits be awarded. Instead I will direct that this matter be remanded to the Secretary so that Ms. Nelson’s claim can be reconsidered in a manner which conforms with the principles recited in this opinion. An appropriate order follows.

ORDER

For the reasons stated in the accompanying memorandum, it is hereby ORDERED that

(1) plaintiff’s motion for summary judgment is GRANTED IN PART AND DENIED IN PART;

(2) defendant’s motion for summary judgment is DENIED;

(3) the report and recommendation of Magistrate Hall is MODIFIED; and

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739 F. Supp. 982, 1990 U.S. Dist. LEXIS 7083, 1990 WL 78152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-sullivan-paed-1990.