FULLER v. ASTRUE

Filing 9

MEMORANDUM AND/OR OPINION RE: REQUEST FOR REVIEW. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 6/23/2011. 6/24/2011 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FLORA MAE FULLER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the
Social Security Administration,
Defendant.

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CIVIL ACTION

NO. 10-4133

MEMORANDUM ON REQUEST FOR REVIEW
Baylson, J.

June 23, 2011

Plaintiff Flora Mae Fuller (“Fuller”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to
Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-433, 1381-1383(c).
(Compl., ECF No. 1.) Pending before the Court are Fuller’s Complaint and her Brief and
Statement of Issues in Support of Request for Review (Pl.’s Br., ECF No. 6)1 and the
Commissioner’s response thereto (Resp., ECF No. 8). After careful and independent
consideration of the matter, and for the following reasons, the Court will deny Fuller’s request
for review.
I.

Factual and Procedural Background
Fuller filed for DIB and SSI on September 24, 2007. (A.R. 73-79, 80-82.) She claimed a

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Fuller also filed a duplicate of her Request for Review. (ECF No. 7.)
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disability onset date of September 1, 2007, at which time she was forty-four years old. (Id. 73.)
She is now forty-eight years old. Fuller has prior relevant work experience as an institutional
cleaner and an attendance officer. (Id. 14.) She completed the twelfth grade. (Id. 24.) Fuller
claims disability due to Crohn’s disease, hip bursitis, and panic attacks. (Id. 22, 93, 143.)
On November 16, 2007, the Social Security Administration (“SSA”) denied Fuller’s
claims for DIB and SSI benefits. (Id. 55, 59.) Fuller then timely requested a hearing before an
administrative law judge (“ALJ”), which was held on September 24, 2008 in Philadelphia,
Pennsylvania. (Id. 17-52, 64-67.) At the hearing, Fuller testified that she experiences constant
pain in both hips and experiences episodes of diarrhea and depression. (Id. 37, 38, 40.) She
stated that she cooks in the microwave, washes dishes, cleans spills, and grooms herself, but that
she cannot dust, sweep, vacuum, do laundry, shop, or take out the trash. (Id. 30-31, 33.) She
testified that she lives with her son who performs most of the chores she cannot. (Id. 31.) She
cannot stand for more than three to five minutes and can walk fifteen feet in five to ten minutes.
(Id. 34-35.) Further, she can only sit for thirty minutes and cannot bend or crouch. (Id. 35-36.)
Fuller then testified that her hip pain causes her to lie down for one to one-and-a-half
hours, three to four times a day, for a total of six to eight hours during the day. (Id. 36-37.) She
also experiences episodes of diarrhea two to three times a week, and will have diarrhea three to
four times a day during those episodes. (Id. 38-39.) She also experiences abdominal pain during
these episodes which forces her to lie down. (Id. 46-47.) Finally, Fuller testified that she
experiences periods of depression because of her hip pain and diminishing independence (id. 4041), but she stopped seeking help for her depression (id. 42-43).
The vocational expert (“VE”) then testified and identified Fuller’s past relevant work as
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fast food worker, children’s institutional attendant, truancy case manager, security guard, and
institutional cleaner. (Id. 48-49.) Fast food worker is light, unskilled work; children’s institution
attendant is medium, semi-skilled work, which Fuller performed at the heavy exertional level;
truancy case manager is light, skilled work, which Fuller performed at the heavy exertional level;
security guard is light, semi-skilled work, which Fuller performed at the heavy exertional level;
and institutional cleaner is heavy, unskilled work. (Id.)
The VE testified that if limited to light work with simple, rotuine tasks, Fuller would only
be able to perform her past work as a fast food worker. (Id. 49.) She could also perform several
positions available in the national or regional economy, including housekeeping or assembly.
(Id. 50.) At the sedentary level, Fuller would be able to perform assembly and product inspection
jobs. (Id.) There are no jobs available if the hypothetical were limited to someone who cannot
sit, stand, and walk a total of eight hours per day on a sustained basis, or who required frequent,
unscheduled breaks including the need to lie down for at least an hour at a time. (Id. 50-51.)
On October 8, 2008, the ALJ issued his decision denying Fuller’s claim for benefits. (Id.
8-16.) The ALJ found Fuller had not performed any substantial gainful activity since the alleged
onset date. (Id. 15.) He also concluded Fuller suffers from a severe impairment of bursitis
aggravated by obesity, but that this impairment does not meet or equal the listed impairments.
(Id.) Although the ALJ did not find Fuller’s statements concerning her impairments and their
effects fully credible, he did find that she is limited to medium work.2 (Id.) Presuming Fuller
could not perform her past relevant work (id. 14), the ALJ concluded that “[b]ased on the
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“Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
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residual functional capacity . . . and [Fuller]’s age, educational background and work experience,
. . . she has been able to engage in occupations with significant numbers of jobs in the regional
and national economies at all relevant times” (id. 15). Consequently, she has not been under a
disability. (Id. 15.)
In his decision, the ALJ noted he gave “careful consideration to all the evidence,”
including Fuller’s hearing testimony. (Id. 8, 13.) The ALJ found that Fuller appeared to testify
truthfully, but that her testimony was than fully credible based on several inconsistencies
between her testimony and the medical evidence of record. (Id. 12.) Further, he found Fuller
experiences diarrhea as a result of her Crohn’s disease, but that treatment records rarely mention
complaints of abdominal pain or frequent episodes of diarrhea. (Id. 10.) Moreover, “even two or
three episodes of diarrhea per week as [Fuller] alleged at the hearing would not significantly
affect the ability to work.” (Id.) Thus, the ALJ determined Fuller’s Crohn’s disease it not a
severe impairment. (Id.) He also found that the record “fails to establish a severe mental
impairment [based on alleged depressive symptoms] that meets the duration requirement since
the alleged onset date.” (Id.)
On December 4, 2008, Fuller appealed the ALJ’s decision to the Appeals Council. (Id.
4.) The Appeals Council denied Fuller’s request for review, rendering the ALJ’s decision the
Commissioner’s final determination. (Id. 1-3.) Fuller then filed a timely complaint in this Court
seeking review of the Commissioner’s final determination. (Compl.)
II.

Jurisdiction and Standard of Review
A.

Jurisdiction

This Court has jurisdiction to review the Commissioner’s final decision pursuant to 42
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U.S.C. § 405(g). See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner . . . made after a hearing to which [s]he was a party . . . may obtain review of such
decision by a civil action commenced within sixty days after the mailing to h[er] of notice of
such decision . . . .”); (see also A.R. 1-3). Venue is proper in this Court pursuant to § 405(g).
B.

Standard of Review

District courts may affirm, modify, or reverse the decision of the Commissioner, with or
without remanding the matter for rehearing. 42 U.S.C. § 405(g). This Court’s role in reviewing
the ALJ’s decision is to determine whether there is substantial evidence to support the
Commissioner’s decision. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); see 42 U.S.C. §
405(g) (“The findings of the Commissioner . . . as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”).
Substantial evidence means such relevant evidence as a reasonable mind would accept as
adequate to support a conclusion. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see
also Jones, 364 F.3d at 503 (stating that substantial evidence is less than a preponderance of the
evidence but more than a scintilla). To determine whether substantial evidence exists, the Court
reviews the record as a whole. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431
(3d Cir. 1999). Nevertheless, the Court retains plenary review of all legal issues. Id. (citing
Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995) (per curiam)).
III.

Discussion
A.

Legal Standards

Social security benefits may be paid to persons “under a disability.” 42 U.S.C. §
423(a)(1). To establish a disability, a claimant “must demonstrate some medically determinable
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basis for an impairment that prevents h[er] from engaging in any substantial gainful activity for a
statutory twelve-month period.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d
Cir. 2000) (quotation marks omitted). “A person is disabled ‘only if h[er] physical or mental
impairment or impairments are of such severity that [s]he is not only unable to do h[er] previous
work but cannot, considering age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.’” Kinney v. Comm’r of Soc.
Sec., 244 F. App’x 467, 469 (3d Cir. 2007) (quoting 42 U.S.C. § 423(d)(2)(A)).
When assessing whether an individual has a disability under the Act, the ALJ follows the
following five-step sequential analysis: (1) if the claimant is currently engaged in substantial
gainful employment, she will be found not disabled; (2) if the claimant does not suffer from a
“severe impairment,” she will be found not disabled; (3) if a severe impairment meets or equals a
listed impairment in 20 C.F.R. § 404, subpart P, appendix 1 and has lasted or is expected to last
continually for at least twelve months, then the claimant will be found disabled; (4) if the severe
impairment does not meet the previous prong, the Commissioner considers the claimant’s
residual functional capacity to determine whether she can perform any past relevant work – if she
can, the claimant will be found not disabled; and (5) if the claimant cannot perform any of his or
her past relevant work, the Commissioner will consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether she can perform other
work which exists in the national economy. Schaudeck, 181 F.3d at 431-32; 20 C.F.R. §
404.1520(a)(4)(i)-(v).
The claimant bears the burden of proof for steps one, two, and four and the burden shifts
to the Commissioner for the fifth step – no party bears the burden for step three. Rivera v.
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Comm’r of Soc. Sec., 164 F. App’x 260, 262 (3d Cir. 2006). Furthermore, if at any step the
Commissioner finds the claimant is disabled or not disabled, the inquiry is at an end. Kinney,
244 F. App’x at 469 (citing 20 C.F.R. § 404.1520(a)(4)). The ALJ denied Fuller’s claim at the
fifth step, concluding that Fuller “has been able to engage in occupations with significant
numbers of jobs in the regional and national economies at all relevant times.” (A.R. 15.)
In evaluating a claim for benefits, the ALJ must consider all of the evidence
in the case. The ALJ must “explicitly” weigh all relevant, probative, and available
evidence. Moreover, the ALJ must provide some explanation for a rejection of
probative evidence that would suggest a contrary disposition. Although the ALJ may
properly accept some parts of the medical evidence and reject other parts, the ALJ
must still consider all the evidence and give some reason for discounting the
evidence [s]he rejects. In the absence of such an indication, the reviewing court
cannot determine whether significant probative evidence was deemed not credible
or whether it was simply ignored.
Weber v. Massanari, 156 F. Supp. 2d 475, 483 (E.D. Pa. 2001) (citations omitted). Further,
when there is a conflict in the evidence, the ALJ is entitled to decide which evidence to credit,
but “cannot reject evidence for no reason or the wrong reason.” See Mason v. Shalala, 994 F.2d
1058, 1066 (3d Cir. 1993). “[T]he ALJ must indicate in his decision which evidence he has
rejected and which he is relying on as the basis for his finding. This explanation provides [the
Court] with a basis on which to assess whether significant probative evidence was not credited or
was simply ignored.” Schaudeck, 181 F.3d at 433 (citations, quotation marks, and alteration
omitted).
B.

Parties’ Contentions

Fuller asserts two arguments in support of her position that substantial evidence does not
support the ALJ’s decision. First, she contends her Crohn’s disease is a severe impairment based
on the frequency of diarrhea episodes related to the disease, the medical evidence in the record,
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and the ALJ’s mis-characterization of her testimony. Second, she argues the ALJ failed to give
appropriate weight to her subjective complaints, which were consistent with and corroborated by
objective medical evidence.
In response, the Commissioner argues substantial evidence supports the ALJ’s conclusion
that Fuller’s Crohn’s disease is not a severe impairment based on infrequent treatments, good
response to medication, and otherwise benign objective medical evidence. In addition, the
Commissioner notes that the ALJ’s credibility determination is supported by substantial evidence
and Fuller has not identified any evidence in the record to support her claimed limitations.
C.

Analysis

Fuller raises two issues in her opening brief – the severity of her Crohn’s disease and the
ALJ’s credibility determination. The Court will address each claim in turn.3
1.

Severity of Fuller’s Crohn’s Disease

At the second step in the sequential process, the claimant must show that her recognized
impairment is severe. See Schaudeck, 181 F.3d at 431-32. The Social Security Rulings and
Regulations, and the case law applying them, discuss the second step severity determination in
terms of what is “not severe.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).
An impairment is “not severe” when medical evidence establishes only a slight abnormality or
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The Commissioner suggests Fuller raises a third issue – whether the ALJ
considered her impairments in combination. Fuller’s opening brief first addresses whether her
Crohn’s disease is a severe impairment, and then contends the ALJ failed to properly analyze her
subjective complaints. In the context of her second argument, Fuller contends the record
supports a finding she suffers from bursitis. No where in this section does she contend the ALJ
did not properly consider her impairments in combination. Therefore, the Court will only
consider the two issues identified. See Weilacher v. Astrue, No. 09-1530, 2010 WL 5483366, at
*4 & n.2 (W.D. Pa. Oct. 14, 2010) (declining to address issue claimant failed to raise in opening
brief) (citing Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000)).
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combination of slight abnormalities which would have no more than a minimal effect on an
individual’s ability to work. Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3
(1985).4 That is, a person’s impairments must have no more than a minimal effect on his or her
physical or mental abilities to perform basic work activities. Id. A person cannot show a severe
impairment when the medical evidence shows minimal effects on basic work activities. SSR 868, 1986 WL 68636, at *3 (1986).
The ALJ must evaluate evidence regarding the functionally limiting effects of an
individual’s impairment to assess the effect of the impairment on the claimant’s ability to do
basic work activities. SSR 96-3p, 1996 WL 374181, at *2 (July 2, 1996). The ALJ must also
consider symptom-related limitations, provided the claimant has a medically determinable
impairment that could reasonably produce the symptoms. Id. Basic work activities are the
abilities and aptitudes necessary to do most jobs, such as:
“(1) [p]hysical functions such as walking, standing, sitting, lifting, [pushing, pulling,
reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and speaking; (3)
[u]nderstanding, carrying out, and remembering simple instructions; (4) [u]se of
judgment; (5) [r]esponding appropriately to supervision, co-workers, and usual work
situations; and (6) [d]ealing with changes in a routine work setting.”
20 C.F.R. §§ 404.1521(b); 416.921(b). The ALJ’s determination requires careful consideration
of the medical findings which describe the impairment and an informed judgment regarding the
limiting effects of the claimant’s physical and mental abilities to perform basic work activities.
SSR 96-3p, 1996 WL 374181, at *2; SSR 85-28, 1985 WL 56856, at *4.

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“Social Security Rulings constitute the SSA’s interpretation of the statute it
administers and of its own regulations. Social Security Rulings do not have the force of law;
nevertheless, once published, they are binding on all components of the SSA.” Newell, 347 F.3d
at 546 n.4 (citations omitted).
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With regard to Fuller’s Crohn’s disease, the ALJ concluded:
“Concerning [Fuller]’s diarrhea, she has Crohn’s disease. Treatment notes since the
alleged onset date, however, rarely mention any complaints of either abdominal pain
or episodes of diarrhea. Biopsies in November, 2006, and October, 2007, likewise
revealed that [Fuller] has only mild active colitis. As of November, 2007, her colon
specialist considered her colitis to be in remission. In any event, even two or three
episodes of diarrhea per week as the claimant alleged at the hearing would not
significantly affect the ability to work. This evidence fails to establish a severe
impairment since the alleged onset date.”
(A.R. 10) (citations omitted). Fuller contends the ALJ failed to consider the recurring remissionrelapse pattern of her Crohn’s disease, and that its frequency and accompanying abdominal pain
which forces her to lie down would significantly effect her ability to work.
After a thorough review of the record in this case, the Court finds that substantial
evidence supports the ALJ’s severity determination. At most, the record reveals that Fuller has a
history of Crohn’s disease with intermittent episodes of diarrhea and infrequent complaints of
nausea and pain. Only once did she complain about diarrhea at the same frequency she alleged at
the hearing. (See A.R. 288-94.) Moreover, there is substantial evidence that she suffers from
only mild active colitis and that her Crohn’s disease was in remission after the alleged onset date.
(Id. 179-82, 343-44.) Further, her Crohn’s disease responds well to medicine. (Id. 345.) Finally,
there is no suggestion in the record, other than Fuller’s own testimony, that her Crohn’s disease
causes any functional limitations that would have more than a minimal effect on her ability to
perform basic work activities.5 See Thompson v. Halter, 45 F. App’x 146, 148 (3d Cir. 2002)
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Fuller also contends the ALJ failed to consider her 2008 progress notes and,
consequently, failed in his duty to consider all relevant evidence. The notes Fuller cites offer
nothing new – they indicate she suffers from Crohn’s disease and experiences diarrhea. (See
A.R. 347, 250-55.) Moreover, the ALJ twice stated that he considered all medical evidence in
the record in reaching his determinations. (Id. 8, 13.) The ALJ’s assertion is supported by
citations in other contexts to medical evidence from 2008. (E.g., id. 11, 12, 13.) Therefore, the
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(“While the absence of [a statement of disability by a doctor] is not dispositive of the issue of
disability, it is surely probative of non-disability.”)
2.

Subjective Complaints

ALJs are required to consider subjective complaints of pain or other symptoms, but these
statements alone cannot establish a disability. 20 C.F.R. § 404.1529(a); see id. § 404.1528(a)
(“Symptoms are your own description of your physical or mental impairment. Your statements
alone are not enough to establish that there is a physical or mental impairment.”). Indeed, an
ALJ must give great weight to subjective complaints if they are supported by competent medical
evidence. Schaudeck, 181 F.3d at 433.
Although the ALJ can reject such claims if he does not find them credible . . . the
adjudicator is not free to accept or reject that individual’s complaints solely on the
basis of . . . personal observations. Rather, in all cases in which pain or other
symptoms are alleged, the determination or decision rationale must contain a
thorough discussion and analysis of the objective medical evidence and the other
evidence, including the individual’s complaints of pain or other symptoms and the
adjudicator’s personal observations. The rationale must include a resolution of any
inconsistencies in the evidence as a whole and set forth a logical explanation of the
individual’s ability to work.
Id.; see also 20 C.F.R. § 404.1529(a) (“[W]e consider all your symptoms, including pain, and the
extent to which your symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.”). If the claims are not supported by objective medical
evidence, then the ALJ must consider other sources of evidence, including the claimant’s own
statements. SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996). The regulations also list factors
relevant to the analysis, including the claimant’s daily activities. See 20 C.F.R. § 404.1529(c)(3).
When the ALJ considers subjective statements, the ALJ must make a credibility finding,
Court concludes the ALJ properly considered all relevant evidence in reaching his determination.
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and the “decision must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *4. “Deference must be given to
the ALJ’s determination [o]n issues of credibility when reviewing the Commissioner’s final
decision, so long as the ALJ discusses the issue and his finding is supported by substantial
evidence.” Weber, 156 F. Supp. 2d at 486.
In this case, the ALJ found Fuller less than fully credible, and credited her testimony to
the extent the medical evidence supports it. (A.R. 12.) The ALJ reached this conclusion based
on five inconsistencies between Fuller’s testimony and the record:
“1) Although [Fuller] testified that she suffers constant hip pain, the record for the
past year shows only intermittent complaints of such pain. . . .
2) Although [Fuller] alleged episodes of diarrhea with abdominal pain two or three
times per week, the record since the alleged onset date does not indicate frequent
such symptoms.
3) Although [Fuller] asserted depressive symptoms, she has not received any
psychiatric treatment since the alleged onset date and treatment notes for the past year
do not include any observations of depressive signs.
4) Although [Fuller] stated that she lies down approximately six to eight hours per
day, treatment notes since the alleged onset date make no mention of any reported
daytime hours of lying down.
5) Although [Fuller] testified that she can sit only 30 minutes at most at a time, she
sat through the hearing, which lasted nearly one hour.”
(Id.) (citation omitted). Fuller contends her complaints are consistent with and corroborated by
medical evidence, which confirm her frequent diarrhea and abdominal pain, as well as her
disabling pain from bursitis. She does not offer any citations to the record to support her claims.
After a thorough review of the record, the Court concludes substantial evidence supports
the ALJ’s credibility determination. The ALJ carefully discussed the medical evidence in the
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record and considered Fuller’s complaints at the hearing. (Id. 10-13.) He also identified the
inconsistencies between Fuller’s complaints and the medical evidence of the record. (Id. 12.)
MRIs, x-rays, and CT scans revealed nothing significant regarding Fuller’s hip pain. (Id. 183,
223, 280, 298, 301, 303, 358.) Further, the record suggests her hip pain was intermittent and not
constant as she alleges. (See id. 149, 190, 213, 220, 254, 283, 298, 300, 301, 303.) She also
intermittently complained about diarrhea and only once complained she experienced episodes
with the frequency she alleged at the hearing. (See id. 188-89, 242, 254, 283, 288-94, 343-45,
350.) Further, none of the medical evidence suggests any functional limitations nearly to the
extent Fuller claims – although several notes indicate that rest relieves her hip pain, nothing
suggests she is forced to lie down for six to eight hours a day. (See id. 149, 152, 283, 288-94,
303, 360.) Nor does anything indicate she can only sit for limited periods of time. Finally, the
only medical evidence regarding her depressive symptoms are notes of her self-reported
problems, but she obtained only minimal treatment and no physician or mental health practitioner
noted any outward signs of depression. (See id. 278, 308-18, 319-23, 328.)
In sum, there is substantial evidence in the record to support the ALJ’s partial rejection of
Fuller’s testimony and decision to credit it only to the extent supported by the medical records.
IV.

Conclusion
For the foregoing reasons, Fuller’s request for review will be denied. An appropriate

order will follow.
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