United States District Court, D. Maryland
JAMES ARTHUR PUCCINELLI, JR.
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher, United States Magistrate Judge.
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered
the parties' cross-dispositive motions. [ECF Nos. 9, 12].
I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). This Court must uphold the decision of
the Social Security Administration (“SSA”) if it
is supported by substantial evidence and if the SSA employed
proper legal standards. 42 U.S.C. §§ 405(g),
1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th
Cir. 1987). For the reasons set forth below, I recommend that
Mr. Puccinelli's motion be denied, that the SSA's
motion be granted, and that the SSA's judgment be
affirmed pursuant to sentence four of 42 U.S.C. §
Puccinelli filed an application for Disability Insurance
Benefits (“DIB”) on June 12, 2013, alleging a
disability onset date of January 1, 2007. (Tr. 195-98). Mr.
Puccinelli's Date Last Insured (“DLI”) is
December 31, 2011, meaning that he had to establish
disability on or before that date to qualify for benefits.
(Tr. 19, 199). His application was denied initially on August
1, 2013, and on reconsideration on March 14, 2014. (Tr.
108-16, 117-39). An Administrative Law Judge
(“ALJ”) held a hearing on March 2, 2016, at which
Mr. Puccinelli was represented by counsel. (Tr. 36-99).
Following the hearing, the ALJ determined that Mr. Puccinelli
was not disabled within the meaning of the Social Security
Act during the relevant time frame. (Tr. 16-34). The Appeals
Council denied Mr. Puccinelli's request for review, (Tr.
1-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Puccinelli suffered from the severe
impairments of “lumbar degenerative disc disease;
lumbar radiculopathy; postoperative lumbar laminectomy
syndrome; reflex sympathetic dystrophy of lower limb; and
lumbosacral radiculopathy.” (Tr. 21). Despite these
impairments, the ALJ determined that Mr. Puccinelli retained
the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) except
the claimant can perform no climbing of ladders or scaffolds
and occasional climbing of ramps and stairs, stooping,
kneeling, crouching, crawling, and balancing. The claimant
can have no exposure to hazards such as unprotected heights
or moving mechanical parts or vibration and occasional
exposure to extreme cold.
22). After considering the testimony of a vocational expert
(“VE”), the ALJ determined that Mr. Puccinelli
could perform his past relevant work as a customer service
representative, and that, therefore, he was not disabled.
Puccinelli disagrees. He raises three primary arguments on
appeal: (1) that the ALJ erred in evaluating Listing 1.04;
(2) that the ALJ failed to properly weigh the medical opinion
evidence in determining his RFC; and (3) that the ALJ failed
to properly evaluate his credibility. Each argument lacks
merit for the reasons discussed below.
Mr. Puccinelli argues that the ALJ erred in evaluating
Listing 1.04. Pl. Mot. 16-18. Even assuming arguendo
that the ALJ had erred, for example, in assessing compromise
of the nerve root or some other element of Listing 1.04, that
error would be harmless. To meet a listing, “every
element of the listing must be satisfied.”
Huntington v. Apfel, 101 F.Supp.2d 384, 391 (D. Md.
2000) (citing Sullivan v. Zebley, 493 U.S. 521, 531
(1990)). The claimant bears the burden of proof at the first
four steps of the sequential evaluation, including the
listing analysis at step three. See Pass v. Chater,
65 F.3d 1200, 1203 (4th Cir. 1995) (noting that the burden
rests with the claimant, through the first four steps of the
sequential evaluation, to present evidence establishing
disability during the relevant period). In this case, Listing
1.04A requires, as one of the elements, “if there is
involvement of the lower back, positive straight-leg raising
test (sitting and supine).” 20 C.F.R. Pt. 404, Subpt.
P, App'x 1 § 1.04. Mr. Puccinelli cites to several
positive straight-leg raising tests in his medical history,
but none of those records indicates that the tests were
performed in both the sitting and supine positions. Pl. Mot.
17 (citing Tr. 313, 324, 345, 411). In light of the fact that
Mr. Puccinelli did not apply for benefits until 2013, with a
DLI of December, 2011, there would be no way for him to
obtain retroactively the necessary evidence of positive
straight-leg raising tests in the sitting and supine
positions during the relevant time frame for assessing
disability. See, e.g., Bishop v. Colvin,
Civil Action No. 14-4068-CM, 2015 WL 5472494, at *5 (D. Kan.
Sept. 17, 2015) (“While there is evidence of positive
straight leg raise tests, most do not specify plaintiff's
posture. The two positive tests that do specify posture were
performed in the seated position. Thus, there is no evidence
that any straight leg raise tests were conducted in the
supine position. Without this evidence, plaintiff cannot show
that he met all of the requirements of Listing
1.04A.”); Fripp v. Colvin, Civil Action No.
9:14-0310-MGL-BM, 2015 WL 3407569, at *5 (D.S.C. May 27,
2015) (noting that a positive straight leg raising test
without any indication of whether the test was both sitting
and supine does not suffice to establish the requirements of
Listing 1.04A, “and that alone is fatal to his
claim”); Martin v. Colvin, Civil Action No.
1:12-CV-062-BL, 2013 WL 3155939, at *5 (N.D. Tex. June 21,
2013) (“Although Plaintiff correctly notes that Dr.
Mehta reported positive straight-leg raising tests, the
medical evidence of record does not indicate positive tests,
both sitting and supine. . . . The lack of positive
straight-leg raising tests in both the supine and sitting
positions demonstrates that the Plaintiff has failed to
provide and identify medical signs and findings that support
all criteria of Section 1.04 of the Listing of
Impairments.”) Accordingly, Mr. Puccinelli is simply
unable, on the medical record he has available to him, to
meet his burden to prove that Listing 1.04A is met, so any
other error in the ALJ's Listing 1.04A analysis is
Puccinelli next contends that the ALJ erred by not assigning
controlling weight to the opinions of his treating
physicians, Drs. Yankey and Hagos. Pl. Mem. 18-25. Social
Security regulations provide that:
If we find that a treating source's medical opinion on
the issue(s) of the nature and severity of [a claimant's]
impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the]
case record, we will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
However, if a treating source's medical opinion is not
assigned controlling weight, the ALJ should consider the
following factors in determining the weight to give the
opinion: (1) the length of the treatment relationship,
including its nature and extent; (2) the supportability of
the opinion; (3) the opinion's consistency with the
record as a whole; (4) whether the source is a specialist;
and (5) any other factors that tend to support or contradict
the opinion. Id. §§ 404.1527(c),
instant case, the ALJ provided a detailed explanation for the
assignments of “little” or less than controlling
weight to the opinions rendered by Drs. Yankey and Hagos.
With respect to Dr. Yankey, the ALJ noted that she provided
treatment only sporadically; that she was not a specialist or
the primary provider of treatment for Mr. Puccinelli's
back pain; and that other medical records, particularly the
treatment records from Dr. Hagos, contradicted the extreme
limitations suggested by Dr. Yankey. (Tr. 26). The ALJ also
noted that Dr. Yankey had assessed mental limitations,
although there were no objective findings to substantiate
mental health issues and Mr. Puccinelli had not reported any
mental difficulties to any treatment provider before his DLI.
Id. In light of the proper application of the
relevant factors and the substantial evidence cited by the
ALJ, there is no error in the assignment of “little
weight” to Dr. Yankey's opinion.
assignment of weight to the opinion of Dr. Hagos is best
considered along with Mr. Puccinelli's third argument
regarding the ALJ's assessment of Mr. Puccinelli's
subjective assertions of disabling pain. Dr. Hagos's
medical treatment records, in the 2011-2012 time frame, are
replete with a variety of different statements indicating
that Mr. Puccinelli was working in a position involving
manual labor. See, e.g., (Tr. 504) (record from
September 14, 2011, indicating that Mr. Puccinelli was
“doing a lot of concrete work”); (Tr. 513)
(record from November 7, 2011, stating that Mr.
Puccinelli's “pain which is exacerbated by heavy
manual work, is improved and well controlled”); (Tr.
515) (record from December 5, 2011, describing that the
“spinal cord stimulator is working well but he still
gets some break through pain when doing strenuous
construction work”); (Tr. 519) (record from January 30,
2012, stating: “He continues to have low back pain that
is made worse by working.”). These records do not
reflect a single statement that is simply copied over into
subsequent treatment notes, but differing descriptions at
each visit corroborating that Mr. Puccinelli was working in
manual labor during the months before and immediately after
his DLI. During his telephonic testimony at Mr.
Puccinelli's hearing, Dr. Hagos confirmed that his
contemporaneous treatment notes would be the best source of
information regarding what Mr. Puccinelli told him at a
particular time. (Tr. 59-60).
evidence from Dr. Hagos's treatment notes explains both
the assignment of less than controlling weight to Dr.
Hagos's opinion and the finding that Mr. Puccinelli's
subjective assertions of disabling pain before his DLI were
not entirely reliable. Dr. Hagos continued treating Mr.
Puccinelli for years after his 2011 DLI, and wrote his
medical opinion more than a year and a half later, on August
14, 2013. (Tr. 683-85). Although Dr. Hagos asserted in his
opinion that the medical conditions he described in 2013 had
existed since October 11, 2010, (Tr. 684), the notions that
Mr. Puccinelli could only sit for “0-1” hours in
a workday and stand or walk for “0-1” hours in a
workday are entirely inconsistent with a person capable of
performing construction work, lots of concrete work, or
manual labor, (Tr. 681). In light of the ALJ's
explanation, citing in large part to the evidence from Dr.
Hagos's treatment records, I am able to understand the
basis for the ALJ's assignment of weight to Dr.
Hagos's opinion and the ALJ's determination that Mr.
Puccinelli's allegations of disabling pain prior to the
DLI were unreliable. Importantly, this Court's role is not
to reweigh the evidence or to substitute its judgment for
that of the ALJ, but simply to adjudicate whether the
ALJ's decision was supported by substantial evidence.
See Hays v. Sullivan, 907 F.2d ...