Houston v. Astrue

Filing 16

MEMORANDUM (Order to follow as separate docket entry) re: Complaint 1 . (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 3/7/14. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD S. HOUSTON,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

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CIVIL ACTION NO. 1:12-CV-2148
(Chief Judge Conner)

MEMORANDUM
Background
The above-captioned action seeks review of a decision of the Commissioner
of Social Security ("Commissioner") denying Plaintiff Richard S. Houston’s claim
for social security disability insurance benefits.
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and paid
social security taxes. The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.” It is undisputed that
Houston met the insured status requirements of the Social Security Act through
September 30, 2008. Tr. 22, 24, 148 and 153.1 In order to establish entitlement to
disability insurance benefits Houston was required to establish that he suffered

References to “Tr. ” are to pages of the administrative record filed by the
Defendant as part of the Answer on December 20, 2012.
1

from a disability on or before September 30, 2008. 42 U.S.C. §423(a)(1)(A), (c)(1)(B);
20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
Houston protectively filed2 his application for disability insurance benefits on
August 18, 2009, almost eleven months after the date last insured. Tr. 22, 112-113,
116, 119 and 122. In the application Houston alleged that he became disabled on
February 14, 2007. Tr. 112. On December 22, 2009, the Bureau of Disability
Determination3 denied Houston’s application. Tr. 94-96. On January 25, 2010,
Houston filed a request for reconsideration which was denied on March 3, 2010. On
March 23, 2010, Houston filed a request for a hearing before an administrative law
judge. Tr. 22 and 97-102. The request was granted and a hearing was held on
February 10, 2011. Tr. 22 and 44-89. Houston was represented by counsel at the
hearing. Id. On May 10, 2011, the administrative law judge issued a decision
denying Houston’s application. Tr. 22-30. As will be explained in more detail infra
the administrative law judge found that Houston failed to prove that he met the
requirements of a listed impairment or suffered from work-preclusive functional
limitations on or before the date last insured. Tr. 25-30. On July 12, 2011, Houston
filed a request for review with the Appeals Council and after over 13 months had

Protective filing is a term for the first time an individual contacts the Social
Security Administration to file a claim for benefits. A protective filing date allows
an individual to have an earlier application date than the date the application is
actually signed.
2

The Bureau of Disability Determination is an agency of the state which
initially evaluates applications for disability insurance benefits on behalf of the
Social Security Administration. Tr. 94.
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2

elapsed the Appeals Council on August 29, 2012, concluded that there was no basis
upon which to grant Houston’s request for review. Tr. 1-5 and 15-16. Thus, the
administrative law judge's decision stood as the final decision of the Commissioner.4
Houston then filed a complaint in this court on October 27, 2012. Supporting and
opposing briefs were submitted and the appeal5 became ripe for disposition on May
8, 2013, when Houston filed a reply brief.
Houston was born in the United States on May 1, 1977, and at all times
relevant to this matter was considered a “younger individual”6 whose age would not
seriously impact his ability to adjust to other work. 20 C.F.R. § 404.1563(c). Tr. 90,
112, 114, 119, 122 and 153. In documents filed with the Social Security
Administration, Houston stated that the highest grade he completed was the 10th
grade in 1993 and that during his primary and secondary schooling he did not
attend special education classes. Tr. 161. Houston did not obtain a General

Houston also filed on August 25, 2009, an application for supplemental
security income (SSI) benefits but that application was denied because of excess
financial resources. Tr. 22 and 148. The denial of the SSI application is not an issue
in the present appeal. Houston, additionally, was incarcerated for unpaid tickets
and possession of marijuana from October 13, 2008 to March 30, 2009, and
accordingly, would have been ineligible for SSI benefits during that time. Tr. 22 and
58-59.
4

Under the Local Rules of Court “[a] civil action brought to review a decision
of the Social Security Administration denying a claim for social security disability
benefits” is “adjudicated as an appeal.” M.D.Pa. Local Rule 83.40.1.
5

The Social Security regulations state that “[t]he term younger individual is
used to denote an individual 18 through 49.” 20 C.F.R., Part 404, Subpart P,
Appendix 2, § 201(h)(1).
6

3

Equivalency Diploma or complete “any type of special job training, trade or
vocational school.” Id. Houston also reported that he could read, write, speak and
understand the English language and perform basic mathematical functions such
as counting change, handling a savings account and using a checkbook and money
orders. Tr. 156 and 165.
Despite these written representations, Houston testified at the administrative
hearing that: he did not finish the 9th grade and his mother pulled him out of school
at the age of 16; he repeated kindergarten; he had a learning disability; and, he
could not read or spell “anything.”7 Tr. 60 and 70. Houston stated that he had a 6th
grade reading level but then equivocated, stating: “I don’t even know if it is that.”
Tr. 86. Education records confirm that during the 9th grade Houston was classified
as learning disabled by the Miller Place Union Free School District, Miller Place,
New York, and that he had an Individualized Education Plan. Tr. 437. A
Metropolitan Achievement Test administered during the 7th grade revealed that
Houston had an instructional reading level of grade 4 or lower and instructional
mathematics level of grade 7-8. Tr. 435. The administrative law judge concluded
that Houston had a limited education but was not illiterate. Tr. 27 and 29.
Houston has a limited work and earnings history. Tr. 150. His employment
history consists primarily of work as a masonry laborer and an automobile detailer

The record reveals that Houston completed several forms in neat and legible
handwriting. See, e.g., a document entitled “Function Report - Adult.” Tr. 163-170.
The “Function Report - Adult” which was completed on October 8, 2008, by
Houston reveals no spelling errors. Id.
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and repairer. Tr. 76-80 and 158. A vocational expert identified the automobile
detailer and repairer positions as Houston’s past relevant employment.8 Tr. 79-80.
The vocation expert described the automobile detailer position as unskilled,
medium work, and the automobile repairer position as skilled, heavy work.9 Id.

Past relevant employment in the present case means work performed by
Houston during the 15 years prior to the date his claim for disability was
adjudicated by the Commissioner. 20 C.F.R. §§ 404.1560 and 404.1565. To be
considered past relevant work, the work must also amount to substantial gainful
activity. Pursuant to Federal Regulations a person’s earnings have to rise to a
certain level to be considered substantial gainful activity.
8

The terms sedentary, light, medium, heavy and very heavy work are defined
in the regulations of the Social Security Administration as follows:
9

(a) Sedentary work. Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other
sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.
(c) Medium work. 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 do sedentary and light work.
5

The records of the Social Security Administration reveal that Houston had
earnings in the years 1991 through 1992, 1994 through 1999, and 2002 through early
2007. Tr. 150. Houston’s annual earnings range from a low of $266.76 in 1995 to a
high of $13,563.82 in 1999. Id. The sum of Houston’s earnings during those 14
years is $46,833.27. Id. Houston testified that he stopped working full-time on
February 14, 2007. Tr. 54 and 157. He further testified that on or about that date
(which he asserts is the disability onset date) that he “was doing block work in St.
Augustine [, Florida].” Tr. 54-55. Houston claims he stopped working “because of
[his] condition.” Tr. 157.
Houston claims that he is unable to work because of injuries he sustained on
or about February 13, 2007, as well as subsequent injuries sustained in September,
2008.10 Tr. 224-225 and 337-338. The circumstances surrounding his initial injuries
are unclear. Houston had consumed several controlled substances, and abrasions
were observed on his body. Tr. 337-338. According to subsequent treatment

(d) Heavy work. Heavy work involves lifting no more than 100 pounds
at a time with frequent lifting or carrying of objects weighing up to 50
pounds. If someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting objects weighing
more than 100 pounds at a time with frequent lifting or carrying of
objects weighing 50 pounds or more. If someone can do very heavy
work, we determine that he or she can also do heavy, medium, light
and sedentary work.
2 C.F.R. § 404.1567.
10

In September, 2008, Houston was 31 years old and he is presently 35.
6

records, Houston apparently reported that “[h]e had multiple trauma from an
assault that he cannot remember [because he] pass[ed] out after taking oxycontin
and drinking alcohol.” Tr. 449. The evening of February 13, 2007, Houston was
admitted to the Shands Healthcare, Alachua General Hospital, Gainsville, Florida,
in a comatose state. Id. Over the next several months Houston had two lengthy
hospitalizations. Tr. 256-257, 297-298 and 446-452. However, after May, 2007, there
is an absence of medical documentation until September 2, 2008. Tr. 224-226. On or
about that date Houston was riding a bicycle and apparently fell and during that fall
one of the bicycle pedals struck his right knee cap fracturing it. Id.
Houston reported that he has no problems with personal care, such as
dressing, bathing, shaving and feeding himself; he needs no special reminders to
take care of personal needs and grooming or help taking or reminders to take
medicines or reminders to go places; he engages in minor household repairs and
does laundry; he goes outside at least once per day; he shops in stores for groceries
two times per month about 30 to 45 minutes; he watches TV “very often & very
well;” he visits and talks with other people everyday; he admitted he had no
problems with reaching, talking, hearing, seeing, his memory, following
instructions, using his hand and getting along with others. Tr. 164-168.
Houston testified at the administrative hearing that he is physically able to
drive a motor vehicle but that he lost his driver’s license as a consequence of unpaid
tickets and a conviction for possession of marijuana. Tr. 58. Houston was able to
walk to the administrative hearing one block from where his girlfriend dropped him
7

off. Tr. 62. Houston is also able to take public transportation on his own. Tr. 62 and
166. Houston has two children, and he has custody of his 11-year old son during the
summertime. Tr. 63. Houston testified that he can lift about 10 to 15 pounds, noting
that he had lifted his suitcase in the past month. Tr. 65. Houston had previously
reported that he could lift up to 30 pounds. Tr. 168. He further testified that he
could stand and/or walk for about 20 minutes at a time; he is able to grill steaks and
occasionally wash dishes; he goes fishing with his son during the summer; and he
plays video games on a Nintendo Wii gaming system with his son, though he stated
that he does not play the more physically active games. Tr. 64-65. Houston stated
that he could perform 75% of physical activities despite his leg impairments. Tr. 67.
Houston reported that he can climb stairs by using the handrail, though he has
difficulty with them, and with walking for any length of time. Tr. 168. He also
reported that he can walk one-eighth of a mile at a time without resting (with a
cane), sit for 2 hours at a time, and stand for 10 minutes at a time. Id.
The record reveals that Houston has a significant history of substance abuse,
involving alcohol, marijuana, cocaine and opiates. Tr. 71, 265, 291, 318, 398 and 400.
At the administrative hearing, Houston testified that the last time he used cocaine,
marijuana or any kind of illegal drugs was “over a year at least,” and he specifically
admitted that he had used marijuana since his alleged disability onset date of
February 14, 2007. Tr. 56. When asked whether he drank alcoholic beverages, he
responded “[n]ot often.” He admitted smoking one pack of cigarettes per day. Tr.
62-63. With respect to abusing alcohol, Houston admitted that he drank an “18
8

pack of beer” in 2009, which apparently resulted in a trip to the hospital because he
could not go to the bathroom. Tr. 71.
Houston claims that he is disabled and unable to work because of left lower
extremity compartment syndrome, status post-fasciotomy;11 a fractured right knee
cap (patella); and a learning disability, including functional illiteracy. Doc. 13,
Plaintiff’s Brief, p. 2. Houston contends that he has “non-stop pain” in his right
knee cap and that he walks with a cane “all the time” and that he started using it in
2007. Tr. 26-27. When asked at the hearing what problems he had with his left leg
he stated that “[i]t just tingles” and “[i]t feels like it’s asleep all the time.” Tr. 69.
I.

Standard of Review
When considering a social security appeal, we have plenary review of all legal

issues decided by the Commissioner. See Poulos v. Commissioner of Social
Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec.
Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858

Thick layers of tissue, fascia, separate groups of muscles in the arms and
legs from each other forming compartments. The compartments not only contain
muscles but also nerves and blood vessels which supply the muscles with nutrients.
Compartment syndrome is where there is increased pressure in a compartment
causing nerve damage and decreased blood flow. There are several causes of
compartment syndrome including trauma, drug and alcohol abuse and coma. A
fasciotomy is a surgical procedure where the fascia are cut open to relieve the
pressure. See, generally, Compartment Syndrome, MedlinePlus, U.S. National
Library of Medicine, National Institutes of Health,
http://www.nlm.nih.gov/medlineplus/ency/article/001224.htm (Last accessed March
4, 2014); Stephen Wallace, M.D., Compartment Syndrome, Lower Extremity,
http://misc.medscape.com/pi/android/medscapeapp/html/A1270542-business.html
(Last accessed March 4, 2014).
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(3d Cir. 1995). However, our review of the Commissioner’s findings of fact pursuant
to 42 U.S.C. § 405(g) is to determine whether those findings are supported by
"substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988);
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are
supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are
supported by substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”); Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981)(“Findings of fact by the Secretary must be accepted as conclusive
by a reviewing court if supported by substantial evidence.”); Keefe v. Shalala, 71
F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001);
Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or considerable amount of
evidence, but ‘rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565
(1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been
described as more than a mere scintilla of evidence but less than a preponderance.
Brown, 845 F.2d at 1213. In an adequately developed factual record substantial
evidence may be "something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the evidence does not
10

prevent an administrative agency's finding from being supported by substantial
evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all the other evidence in
the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the
record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the
Commissioner ignores countervailing evidence or fails to resolve a conflict created
by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which
evidence was accepted, which evidence was rejected, and the reasons for rejecting
certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a
court reviewing the decision of the Commissioner must scrutinize the record as a
whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano,
606 F.2d 403, 407 (3d Cir. 1979).
II.

Sequential Evaluation Process
To receive disability benefits, the plaintiff must demonstrate an “inability to

engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he 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, regardless of whether
11

such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he
applied for work. For purposes of the preceding sentence (with respect to
any individual), “work which exists in the national economy” means work
which exists in significant numbers either in the region where such
individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in evaluating disability
insurance and supplemental security income claims. See 20 C.F.R. §404.1520;
Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in
sequence, whether a claimant (1) is engaging in substantial gainful activity,12 (2) has
an impairment that is severe or a combination of impairments that is severe,13 (3)

If the claimant is engaging in substantial gainful activity, the claimant is not
disabled and the sequential evaluation proceeds no further. Substantial gainful
activity is work that “involves doing significant and productive physical or mental
duties” and “is done (or intended) for pay or profit.” 20 C.F.R. § 404.1510.
12

The determination of whether a claimant has any severe impairments, at
step two of the sequential evaluation process, is a threshold test. 20 C.F.R. §
404.1520(c). If a claimant has no impairment or combination of impairments which
significantly limits the claimant’s physical or mental abilities to perform basic work
activities, the claimant is “not disabled” and the evaluation process ends at step
two. Id. If a claimant has any severe impairments, the evaluation process
continues. 20 C.F.R. § 404.1520(d)-(g). Furthermore, all medically determinable
impairments, severe and non-severe, are considered in the subsequent steps of the
sequential evaluation process. 20 C.F.R. §§ 404.1523 and 404.1545(a)(2). An
impairment significantly limits a claimant’s physical or mental abilities when its
effect on the claimant to perform basic work activities is more than slight or
minimal. Basic work activities include the ability to walk, stand, sit, lift, carry, push,
pull, reach, climb, crawl, and handle. 20 C.F.R. § 404.1545(b). An individual’s basic
mental or non-exertional abilities include the ability to understand, carry out and
remember simple instructions, and respond appropriately to supervision,
coworkers and work pressures. 20 C.F.R. § 1545(c).
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12

has an impairment or combination of impairments that meets or equals the
requirements of a listed impairment,14 (4) has the residual functional capacity to
return to his or her past work and (5) if not, whether he or she can perform other
work in the national economy. Id. As part of step four the administrative law judge
must determine the claimant’s residual functional capacity. Id.15
Residual functional capacity is the individual’s maximum remaining ability to
do sustained work activities in an ordinary work setting on a regular and
continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2,
1996). A regular and continuing basis contemplates full-time employment and is
defined as eight hours a day, five days per week or other similar schedule. The
residual functional capacity assessment must include a discussion of the
individual’s abilities. Id; 20 C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1
(“‘Residual functional capacity’ is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).”).
III.

Medical Records
Before we address the administrative law judge’s decision and the arguments

of counsel, we will review in detail Houston’s medical records.

If the claimant has an impairment or combination of impairments that
meets or equals a listed impairment, the claimant is disabled. If the claimant does
not have an impairment or combination of impairments that meets or equals a
listed impairment, the sequential evaluation process proceeds to the next step.
14

If the claimant has the residual functional capacity to do his or her past
relevant work, the claimant is not disabled.
15

13

It is undisputed that during February through May, 2007, Houston suffered
from serious medical conditions and received extensive medical treatment. During
this four month period, Houston underwent two lengthy hospitalizations as well as
nursing home care at Park Meadows Health and Rehabilitations Center in
Gainsville, as follows: from February 14 to March 21, 2007, and from March 31 to
May 22, 2007. Tr. 249-254, 256-259, 295-296 and 446-452. However, after May 2007,
and until September 2, 2008, there is a lack of evidence in the record that Houston
received medical care and treatment.
As stated earlier on or about February 13, 2007, Houston was found in a
comatose state and transported and admitted to Alachua General Hospital. Tr. 295296. At the time of admission it was reported that Houston was found “down and
unresponsive for an unknown duration of time” and that the “last known time that
he was seen by anyone was approximately three days earlier.” Tr. 341. A physical
examination was performed which revealed that Houston had an extremely rapid
pulse of 158 and a respiration rate of 52 but only slightly elevated blood pressure of

14

135/75. Tr. 342. Houston’s Glasgow Coma scale was 7 representing a state of coma.16
Id. Houston did not respond verbally. He had a hematoma above the right eye and
facial abrasions which were “foul smelling.”. Id. His right eye was swollen closed.
Id. He was edentulous (lacking teeth) and he had a “thick purulent mucoid coating
of his tongue and posterior pharynx.” Id. Houston had numerous bruises and
abrasions, including on his chest wall, elbows, shoulder and knees and his “left calf
was swollen and tense.” Id. The attending physician noted that he could not rule
out a deep venous thrombosis (DVT)(blood clot) of the left calf. Id. Houston had
some evidence of livedo reticularis17 of the right foot. Id. The attending physician

Glasgow Coma Scale is “a quick, practical standardized system for
assessing the degree of consciousness in the critically ill and for predicting the
duration and ultimate outcome of coma, primarily in patients with head injuries.
The system involves eye opening, verbal response, and motor response, all of which
are evaluated independently according to a rank order that indicates the level of
consciousness and degree of dysfunction. The degree of consciousness is assessed
numerically by the best response. The results may be plotted on a graph to provide
a visual representation of the improvement, stability, or deterioration of a patient's
level of consciousness, which is crucial to predicting the eventual outcome of coma.
The sum of the numeric values for each parameter can also be used as an overall
objective measurement, with 15 indicative of no impairment, 3 compatible with
brain death, and 7 usually accepted as a state of coma. The test score can also
function as an indicator for certain diagnostic tests or treatments, such as the need
for a computed tomography scan, intracranial pressure monitoring, and intubation.
The scale has a high degree of consistency even when used by staff with varied
experience.” Mosby's Medical Dictionary, 8th edition. 2009.
16

“Livedo reticularis is a vascular condition characterized by a purplish
discoloration of the skin, usually on the legs. This discoloration is described as lacy
or net-like in appearance and may be aggravated by cold exposure. Most often
livedo reticularis causes no symptoms and needs no treatment. But it can be
associated with serious underlying disorders[.]” Livedo reticularis: When is it a
concern?, MayoClinic, http://www.mayoclinic.org/livedo
-reticularis/expert-answers/FAQ-20057864 (Last assessed March 4, 2014).
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was unable to perform a sensory examination. Tr. 343. An EKG revealed sinus
tachycardia18 with poor R-wave progression. Id. An x-ray of the chest revealed “a
right lower lobe infiltrate suggestive of a pneumonia[.]” Tr.338. A CT scan of the
head showed “a hematoma of the right orbit, right frontal bone without fracture.”
Id. A urine drug screen was positive for opiates, tricyclic antidepressants and
cocaine. Id. The diagnostic impression was that Houston experienced the following
medically significant issues: multiple facial trauma; a possible drug overdose or a
closed head-head injury; acute rhabdomyolysis19 with low urine output (oliguria)
and elevated creatine kinase;20 pressure necrosis (cell injury or death) of areas of his
extremities with evidence of livedo reticularis; right lower lobe pneumonia; acute
renal failure; and polysubstance abuse. 343. Treating physicians later concluded
that Houston suffered from left lower extremity compartment syndrome. On

18

Tachycardia is a heart rate that exceed 100 beats per minute.

Rhabdomyolysis is the rapid destruction of skeletal muscle that leads to the
release of muscle fiber contents into the blood and can result in renal(kidney)
failure. There are several causes of this condition, including the use of cocaine and
opiates. See Rhabdomyolysis, MedlinePlust, U.S. National Library of Medicine,
National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/
000473.htm (Last accessed March 4, 2014).
19

Creatine kinase (also known as creatine phosphokinase) is an enzyme
found in brain, heart and skeletal muscle tissue and elevated levels of that enzyme
in the blood suggest damage to those tissues. See Creatine phosphokinase test,
MedlinePlus, U.S. National Library of Medicine, National Institutes of Health,
http://www.nlm.nih.gov/medlineplus/ency/article/003503.htm (Last accessed March
5, 2014).
20

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February 14, 2007, Houston underwent surgery, a four compartment fasciotomy, to
relieve the pressure in that extremity. Tr. 344-345.
During his initial hospital stay Houston was also evaluated on February 17,
2007, by a neurologist, Jeffrey Borkoski, M.D., who concluded after performing a
clinical interview and physical examination that Houston suffered from
“[e]ncephalopathy, probable mild anoxic encephalopathy,”21 “[r]habdomyolysis
secondary to acute renal failure requiring hemodialysis,” “[l]eft lower extremity
compartment syndrome requiring fasciotomy,” and “[p]olysubstance abuse[.]” Tr.
396-397. Houston also had two ultrasounds performed on the right upper extremity.
Tr. 311. On February 16, 2007, the ultrasound study was negative for a deep venous
thrombosis. Id. However, on March 9, 2009, a second ultrasound study revealed a
“[t]hrombus [blood clot] within the right brachial vein.”22 Id. On March 13, 2007,
Houston was “doing well,” his “[w]ound was healing [without] complications” and
he was demanding to go home. Tr. 389-390.
Houston was discharged from his first hospitalization on March 21, 2007. Tr.
297. The discharge diagnosis was as follows: (1) multiple trauma; (2) right
periorbital laceration; (3) rhabdomyolysis; (4) acute renal failure; (5) left lower

Anoxic encephalopathy “is a condition where brain tissue is deprived of
oxygen and there is a global loss of brain function[.]” Encephalopathy,
emedicinehealth, http://www.emedicinehealth.com/encephalopathy/page2_em.htm
(Last accessed March 4, 2014).
21

The brachial veins are part of an intricate system of veins of the upper
limbs. See Dorland’s Illustrated Medical Dictionary, 2032 (32nd Ed. 2012).
22

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extremity compartment syndrome, status post fasciotomy; (6) right lower lobe
pneumonia; (7) gastrointestinal bleed; (8) elevated troponins23 due to anoxic heart
muscle injury; (9) right radial nerve impairment; (10) deep venous thrombosis in the
right brachial vein; (11) hypoalbuminuria;24 (12) anemia; (13) polysubstance abuse:
cocaine, marijuana, opiates and tricyclic antidepressants; (14) delirium; (15) anoxic
and metabolic encephalopathy;25 and (16) impaired glucose tolerance induced,
corticosteroid induced. Id. The discharge summary states that: Houston’s condition
steadily improved during the course of his stay; he was weaned off dialysis; his
renal function significantly improved; he had a normal urine output; his glucose
level returned to normal; the right lower lobe pneumonia healed; the left lower

Troponins are proteins found in heart muscle which are involved in the
process of contraction. Elevated levels in the blood suggest damage to muscle
tissue. See Troponins, Lab Tests Online,
http://labtestsonline.org/understanding/analytes
/troponin/tab/test (Last accessed March 5, 2014).
23

Hypoalbuminuria is a medical condition where levels of the protein
albumin in the urine are low which is not a harmful condition. In a healthy
individual the kidneys prevent proteins from accumulating in the urine. If there
were low levels of albumin in the blood (hypoalbuminemia) that would be
something to be concerned about. See Albumin, Lab Tests Online,
http://labtestsonline.org/understanding/analytes/albumin/tab/test (Last accessed
March 4, 2014); Albumin - blood (serum), MedlinePlus, U.S. National Library of
Medicine, National Institutes of Health,
http://www.nlm.nih.gov/medlineplus/ency/article/003480.htm (Last accessed March
4, 2014).
24

Anoxic refers to a lack of oxygen while metabolic encephalopathy “is a
broad category that describes abnormalities in the water electrolytes, vitamins, and
other chemicals that adversely affect brain function.” Encephalopathy,
emedicinehealth,http://www.emedicinehealth.com/encephalopathy/page3_em.htm
(Last accessed March 5, 2014).
25

18

extremity surgical wound had improved; and he was referred to a plastic surgeon
for a skin graft. Id. However, Houston refused a skin graft because he wanted to
have a tattoo in the area where the wound was healing, and the plastic surgeon
purportedly “signed off the case.” Id. At discharge, Houston was prescribed the
blood thinner Coumadin and advised to have periodic blood tests to ensure its
effectiveness. Id. Houston was discharged to home in a stable condition. Tr. 298.
At his initial appointment with Dr. Irena K. Gesheva on March 26, 2007, Houston
was in no acute pain or distress, and no significant change in condition was noted.
Tr. 291.
However, on March 31, 2007, Houston was again admitted to the hospital
because of complaints of left leg pain and confusion. Tr. 249, 251 and 267-269. CT
scans and an MRI revealed that Houston developed a couple of low density areas
within the brain, indicating demyelinating changes. Tr. 270-271 and 286-285. The
admission diagnosis was an “[a]ltered mental status with history of severe trauma
secondary to rhabdomyolysis, acute renal failure, left lower extremity compartment
syndrome status post fasciotomy, history of respiratory failure, pneumonia, GI
bleed, elevated troponins likely secondary to anoxic injury, [and] urinary
incontinence.” Tr. 256. Houston received treatment at the hospital through May 7,
2007, when he was discharged against medical advice. Tr. 248.
After being discharged from the hospital, Houston was admitted to Park
Meadows, a skilled nursing facility. Tr. 451-452. While at Park Meadows Houston
received physical therapy. Tr. 461-468. The results of a physical examination
19

performed on May 12th were normal. Tr. 450. Houston had normal muscle tone and
strength. Id. It was specifically indicated that Houston had a scar on the lower left
extremity but that the wound was healed. Id. It was also stated that Houston was
oriented to person, place and time; his communication skills were within normal
limits; he responded appropriately to questions; he had a good attention span; and
he had an appropriate affect. Id. The assessment was status post trauma and he
was advised to continue present medications, diet and physical therapy and to
continue having periodic blood tests to monitor his treatment with the blood
thinner Coumadin. Tr. 449.
Examination notes from Park Meadows dated May 13, 2007, state that
Houston was able to make decisions. Tr. 447. The results of a physical examination
again were normal, including Houston had normal muscle tone and strength. Tr.
448. It was also stated that Houston was oriented to person, place and time; his
communication skills were within normal limits; he responded appropriately to
questions; he had a good attention span; and he had an appropriate affect. Id.
On May 15, 2007, an evaluation of Houston at Park Meadows revealed that
with respect to his musculoskeletal system he had no extrapyramidal

20

symptoms(EPS)26, no atrophy and an independent gait. Tr. 451. Houston’s
appearance was neat; his motor activity was described as restless; he had normal
speech; his attitude was cooperative; his thought processes were intact; he had no
hallucinations, delusions, suicidal ideations, or memory problems; he was fully
oriented to person, place, time and situation; his affect was constricted; his mood
was anxious; and his judgment and insight were impaired. Id. He was given a
tentative diagnosis of “polysubstance dependence/bipolar disorder.” Tr. 452.
By May 21, 2007, Houston’s physical therapist at Park Meadows noted that
Houston had met his goals and discharged him from therapy. Tr. 462. She further
noted that Houston was “[independent]/safe [with] all mobility.” Id. A Park
Meadows’s treatment note dated May 22, 2007, reveals that Houston was
demanding to be discharged from the facility. Tr. 446. That note also reveals that
Houston was “up ambulating [without (illegible)].” Id. The assessment was status
post trauma, alcohol encephalopathy and pulmonary high blood pressure. Id.
Houston was discharged to home with instructions to follow-up with the clinic or
his primary care physician. Id.

EP symptoms are abnormal motor activities, including Parkinsonian
symptoms, dystonia (sudden contraction and rigidity of muscles) and akathisia (a
need for constant movement, e.g., rocky back and forth), associated with
dysfunction in a portion of the brain referred to as the extrapyramidal system
which controls involuntary reflexes and movement and coordination. See
Extrapyramidal system, Chemeurope.com, http://www.chemeurope.
com/en/encyclopedia/Extrapyramidal_system.html (Last accessed March 5, 2014).
26

21

After the Park Meadow’s treatment note of May 22, 2007, we do not
encounter any record of treatment until September 2, 2008. Tr. 224-231. On that
date Houston was examined by Richard Steinfeld, M.D., at the Orthopaedic Center
of Vero Beach, Vero Beach, Florida. Id. Houston’s chief complaint was a fracture of
the right knee cap sustained in a bicycle accident. Tr. 225. Houston told Dr. Vero
that he had no history of anemia, arthritis, Rheumatoid arthritis,
asthma/emphysema, back disorders, bursitis, bleeding disorders, cancer, diabetes,
heart disease, hepatitis, high blood pressure, aids, kidney infections, kidney stones,
lung disease, lyme disease, paralysis, phlebitis, pneumonia, Rheumatic fever,
stroke, and TB. Tr. 224. When Dr. Steinfeld reviewed Houston’s systems,27 Houston
denied any diseases of the eyes, nose, throat, sinusitis, loss of hearing, indigestion,
heartburn, hernia, stomach pain, gallbladder disease, bowel disease, intestinal
bleeding, frequent urination, burning with urination, shortness of breath, chill or
fever, heart/chest pain, agina, abnormal heart beat, muscle weakness, joint
pain/stiffness, arm pain on exertion, neck stiffness, muscle aches, arthralgias (joint
pain), back pain, loss of consciousness, numbness, seizures, dizziness, depression,
mania, sleep, disturbance, alcohol abuse, calf cramps when walking, mental
illness/addiction, gout and psoriasis. Tr. 224-225. Houston told Dr. Steinfeld that he

“The review of systems (or symptoms) is a list of questions, arranged by
organ system, designed to uncover dysfunction and disease.” A Practical Guide to
Clinical Medicine, University of California, School of Medicine, San Diego,
http://meded.ucsd.edu/clinicalmed/ros.htm (Last accessed March 4, 2014).
27

22

did not smoke, that he never used alcohol and that he never engaged in the overuse
of drugs. Id.
The results of a physical examination performed by Dr. Steinfeld were
normal other than with respect to Houston’s right knee. Id. An examination of
Houston’s right knee revealed no deformity, normal alignment, and no torsion,
mass, induration, warmth, or redness, but apparent swelling at the knee cap and a
palpable knee cap (patellar) gap. Tr. 226. Houston had full strength in the lower
legs. Id. The records reflect that Houston ambulated with the assistance of
crutches, but had a normal gait and no limp. Tr. 225. The skin of both lower legs
was noted to be normal. Tr. 226. Houston had normal reflexes, coordination, and
sensation in the extremities. Id. According to Dr. Steinfeld’s diagnostic assessment,
Houston suffered from a fracture of the right knee cap (patella). Id. Dr. Steinfeld
discussed surgical and non-surgical treatment with Houston. Id. Houston
ostensibly opted to undergo surgical treatment, but the record is devoid of any
evidence of a surgical procedure until September, 2010, almost two years after the
date last insured. Tr. 26-27, 227, 231 and 522. Dr. Steinfeld did not provide an
assessment of Houston’s work-related functional abilities, including his ability to sit,
stand, walk, lift and carry.
In January, 2010, Houston sought treatment from Treasure Coast
Community Health for right knee pain. Tr. 221. Houston was assessed with a torn
ligament and patellar (knee cap) displacement in the right knee. Id. On July 15,
2010, James P. Herberg, M.D., completed a Pennsylvania Department of Public
23

Welfare Employment Assessment Form on behalf of Houston. Tr. 202-203. In a
conclusory fashion, Dr. Herberg stated that Houston was permanently disabled as a
result of a right knee cap injury and atrophy of the right lower leg. Id. Significantly,
Dr. Herberg did not opine that Houston was disabled on or prior to the date last
insured nor did he specify when the permanent disability arose. Additionally, he
did not give a detailed assessment of Houston’s work-related functional abilities.
Houston also was examined by Daniel Feldman, M.D., in August, 2010. Tr.
469-474. Dr. Feldman observed that although Houston could not extend his right
knee, he could walk with a cane. Dr. Feldman noted that Houston’s left knee cap
was unremarkable. Id. Dr. Feldman did not provide a functional assessment, nor
did he opine that Houston was disabled on or prior to the date last insured. Id.
On September 8, 2010, Wade R. Smith, M.D., performed surgery on
Houston’s right knee to repair the knee cap. Tr. 522-523. Houston attended a postsurgical follow-up in late September with Dr. Smith. Tr. 497-498. At that time
Houston’s suture line was intact, there was no redness or drainage at the surgical
site, and Houston’s knee was placed in a brace. Id. Dr. Smith referred Houston to
John Findley, M.D., for pain management. Subsequently, Houston revealed to Dr.
Findley that he had been an intravenous drug user with opiate dependence for
approximately six years. Tr. 503. Dr. Findley proposed converting Houston to
methadone. Id. Neither Dr. Smith nor Dr. Feldman provided a functional
assessment and did not opine that Houston was disabled on or prior to the date last
insured.
24

Nancy Cowder, an occupation therapist, evaluated Houston shortly after his
knee surgery. Tr. 519. She noted that Houston lived in an apartment with 25-30
steps to enter and that, prior to the operation, he could ambulate independently
with a cane. Tr. 520. X-rays in October 2010 revealed no significant findings. Tr.
509. By January, 2011, Dr. Smith opined that Houston was doing “very well” with
range of motion in the knee from 0-95 degrees; x-rays revealed that Houston’s
fracture remained fixed in good alignment and was healing; Houston’s motor
sensory exam was normal and Houston was referred to physical therapy for
quadriceps strengthening. Tr. 511-512 and 516.
Finally, there are two assessments in the record regarding Houston’s mental
condition from state agency psychologists. Tr. 206-219 and 232-245. On September
6, 2007, Michael Zelenka, Ph.D., found that Houston had “some element of
depression, history of substance abuse and likely a personality disorder” but there
was insufficient evidence to determine that Houston suffered from a mental
impairment. Tr. 224. On March 2, 2010, J. Patrick Peterson, Ph.D., found that
Houston did not suffer from a medically determinable mental impairment. Tr. 206.
DISCUSSION
The administrative record in this case is 534 pages in length, primarily
consisting of medical and vocational records. The administrative law judge did an
adequate job of reviewing Houston’s medical history and vocational background in
her decision. Tr. 22-30. Furthermore, the brief submitted by the Commissioner

25

sufficiently reviews the medical and vocational evidence in this case. Doc. 14, Brief
of Defendant.
Houston argues that the administrative law judge failed to appropriately
consider the medical evidence, particularly the records and opinions of the treating
physicians. He also argues that the ALJ mischaracterized the evidence with
respect to which knee cap was fractured and inappropriately assessed his
credibility. We have thoroughly reviewed the record in this case and find no merit
in Houston’s arguments.
The administrative law judge at step one of the sequential evaluation process
found that Houston had not engaged in substantial gainful work activity during the
period from his alleged onset date of February 14, 2007, through his date last
insured of September 30, 2008. Tr. 24.
At step two of the sequential evaluation process, the administrative law judge
found that Houston had several severe impairments, including left lower extremity
compartment syndrome status post fasciotomy. Tr. 24. On one occasion, the
administrative law judge incorrectly noted that Houston had a severe left patella
fracture, instead of a right patella fracture. Id. This was simply a decision drafting
error. As evidenced by her questions at hearing, the administrative law judge
clearly understood that Houston suffered a right patella fracture. Tr. 60-62.
Moreover, the administrative law judge noted that Dr. Herberg completed an
employability assessment form in which Dr. Herberg identified Houston’s right

26

patella fracture and lower extremity atrophy as Houston’s disabling impairments.
Tr. 28.
The administrative law judge specifically determined that Houston suffered
from the non-severe impairments of depression, a personality disorder, and a
learning disorder. Tr. 25. Obviously, the administrative law judge gave Houston
some of the benefit of the doubt based on his testimony, and did not fully accept the
opinion of a state agency psychologist that Houston had no medically determinable
psychological impairment. Id. The administrative law judge further noted that
although Houston’s depression, personality disorder and learning disorder were
non-severe, she noted limitations (which we delineate below) in the residual
functional capacity assessment. Id.
At step three of the sequential evaluation process the administrative law
judge found that Houston’s impairments did not individually or in combination
meet or equal a listed impairment. Tr. 25. Houston has not challenged the
administrative law judge’s step three analysis.
At step four of the sequential evaluation process the administrative law judge
found that Houston had the residual functional capacity to perform a limited range
of unskilled, light work. Tr. 25-26. The administrative law judge found that Houston
could perform light work that limited him to only the occasional climbing of stairs
and ladders, permitted him to change positions every 30 minutes and involved
simple, routine tasks. Id. In setting Houston’s residual functional capacity, the
administrative law judge relied in part upon the opinions of the state agency
27

psychological consultants but, as noted above, also gave Houston the benefit of the
doubt as to certain of his limitations. Id. The ALJ also rejected the conclusory
disability opinion of Dr. Herberg. Tr. 27.
In setting the residual functional capacity, the administrative law judge
reviewed the medical records and considered several other items including the
treating physicians’ medical notes. Tr. 25-28. The administrative law judge found
that Houston’s statements about his functional limitations were not credible to the
extent they were inconsistent with the above residual functional capacity. Tr. 26-27.
The ALJ in addressing Houston’s credibility stated in part as follows:
This is a combination, duration and insufficient evidence
case during the period at issue, namely February 14, 2007
to September 30, 2008. In terms of the claimant’s
complaints of pain, the objective evidence fails to support
the severity of his symptoms and alleged impairments. . . .
The undersigned did not find the claimant credible.
There were inconsistencies in his testimony. He was not
cooperative in responding to questions and would not
respond to even his own questions - i.e. when he asked
how much weight he could lift, he asked “standing? Or
sitting?” When the undersigned then asked him tell me
how much he can lift standing and how much he can lift
sitting, he stated he did not know. . . .
A review of the evidence in its entirety does not support
the claimant’s allegations that he is now illiterate.
Upon review of the evidence, the undersigned finds that
the claimant’s testimony with regard to his symptoms, not
fully credible, because it was overstated, inconsistent
with, and unsupported by, the great weight of the
documentary medical evidence.
Tr. 26-27.
28

No treating physician submitted a functional assessment of Houston which
indicated that on or prior to the date last insured he was functionally impaired from
a physical or mental standpoint for the requisite continuous 12 month period.28
The administrative law judge rejected the disability opinions of Dr. Herberg,
a physician who examined and treated Houston’s right knee after the date last
insured. Dr. Herbert did not indicate that Houston suffered from a disability on or
prior to the date last insured. The Court of Appeals for the Third Circuit has set
forth the standard for evaluating the opinion of a treating physician in Morales v.
Apfel, 225 F.3d 310 (3d Cir. 2000). The Third Circuit stated in relevant part as
follows:
A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating
physicians’ reports great weight, especially “when their
opinions reflect expert judgment based on a continuing
observation of the patient’s condition over a prolonged
period of time.” . . . The ALJ must consider the medical
findings that support a treating physician’s opinion that
the claimant is disabled. In choosing to reject the treating
physician’s assessment, an ALJ may not make
“speculative inferences from medical reports” and may
reject “a treating physician’s opinion outright only on the
basis of contradictory medical evidence” and not due to
his or her own credibility judgments, speculation or lay
opinion.

To receive disability benefits, the plaintiff must demonstrate an “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 432(d)(1)(A).
28

29

Id. at 317-18 (internal citations omitted). The administrative law judge is required to
evaluate every medical opinion received. 20 C.F.R. § 404.1527(d). In the present
case, the administrative law judge in his decision specifically addressed the opinion
of Dr. Herberg. Tr. 28.
The social security regulations specify that the opinion of a treating physician
may be accorded controlling weight only when it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in the case. 20 C.F.R. § 404.1527(d)(2); SSR 96-2p.
Likewise, an administrative law judge is not obliged to accept the testimony of a
claimant if it is not supported by the medical evidence. An impairment, whether
physical or mental, must be established by “medical evidence consisting of signs,
symptoms, and laboratory findings,” and not just by the claimant’s subjective
statements. 20 C.F.R. § 404.1508 (2007). The administrative law judge appropriately
considered objective medical evidence and concluded that the disability opinion of
Dr. Herberg was not adequately supported by the objective medical evidence.
With respect to Houston’s argument that the administrative law judge did
not properly consider his credibility, the administrative law judge was not required
to accept Houston’s claims regarding his physical or mental limitations. See Van
Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)(providing that credibility
determinations as to a claimant’s testimony regarding the claimant’s limitations are
for the administrative law judge to make). It is well-established that “an
[administrative law judge’s] findings based on the credibility of the applicant are to
30

be accorded great weight and deference, particularly since [the administrative law
judge] is charged with the duty of observing a witness’s demeanor . . . .” Walters v.
Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997); see also Casias v.
Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)(“We defer to
the ALJ as trier of fact, the individual optimally positioned to observe and assess
the witness credibility.”). Because the administrative law judge observed and heard
Houston testify, the administrative law judge is the one best suited to assess his
credibility.
We are satisfied that the administrative law judge appropriately took into
account all of Houston’s limitations both physical and mental in the residual
functional capacity assessment. Our review of the administrative record reveals
that the decision of the Commissioner is supported by substantial evidence. We
will, therefore, pursuant to 42 U.S.C. § 405(g) affirm the decision of the
Commissioner.
An appropriate order will be entered.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

March 7, 2014