Lambacher v. Astrue

Filing 16

MEMORANDUM 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 enteredSigned by Honorable Richard P. Conaboy on 3/14/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARGARET M. LAMBACHER,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 3:11-CV-02183
(Judge Conaboy)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Margaret M. Lambacher’s claim for social
security disability insurance benefits and supplemental security
income benefits.
Lambacher protectively filed1 on May 29, 2008, an
application for disability insurance benefits and an application
for supplemental security income benefits. Tr. 34, 76, 78, 108,
116-117 and 125.2

On December 29, 2008, the Bureau of Disability

Determination3 denied Lambacher’s applications. Tr. 81-86 and 92-

1. 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. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on January
23, 2012.
3.

The Bureau of Disability Determination is an agency of the
(continued...)

97.

On January 9, 2009, Lambacher requested a hearing before an

administrative law judge. Tr. 103-104.

After 10 months had

passed, a hearing was held on November 9, 2009. Tr. Tr. 45-73.

On

January 20, 2010, the administrative law judge issued a decision
denying Lambacher’s applications. Tr. 34-44.

On February 5, 2010,

Lambacher requested that the Appeals Council review the
administrative law judge’s decision. Tr. Tr. 26-30.

After 19

months had passed, the Appeals Council on September 23, 2011,
concluded that there was no basis upon which to grant Lambacher’s
request for review.4 Tr. 1-6.

Thus, the administrative law

judge’s decision stood as the final decision of the Commissioner.
Lambacher then filed a complaint in this court on
November 23, 2011.

Supporting and opposing briefs were submitted

and the appeal5 became ripe for disposition on July 3, 2012, when
Lambacher filed a reply brief.
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.

3. (...continued)
state which initially evaluates applications for disability
insurance benefits and supplemental security income benefits on
behalf of the Social Security Administration. Tr. 81 and 92.
4. Lambacher’s request for review was originally denied on June
16, 2011, but that denial was vacated to allow Lambacher to file
a supporting brief. Tr. 7-16.
5. 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.
2

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 Lambacher met the insured status requirements of
the Social Security Act through December 31, 2007. Tr. 34, 36, 119
and 126.

In order to establish entitlement to disability

insurance benefits Lambacher was required to establish that she
suffered from a disability on or before that date.

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).
Supplemental security income is a federal income
supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.

Insured status

is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits.
Lambacher, who was born in the United States on May 10,
1968,6 graduated from high school in 1988.
125 and 134.

Tr. 50, 76, 108,

116,

Lambacher can read, write, speak and understand the

English language and perform basic mathematical functions.
51, 128 and 147. 151 and 339.

Tr.

During her elementary and secondary

6. At the time of the administrative hearing and the
administrative law judge’s decision, Lambacher was 41 years of
age and considered a “younger individual” whose age would not
seriously impact her ability to adjust to other work. 20 C.F.R. §
404.1563(c). 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).
3

schooling Lambacher attended regular education classes. Tr. 134.
After graduating from high school, Lambacher did not obtain any
other training.

Id.

Lambacher has past relevant employment7 as (1) a
warehouse worker which was described as unskilled, medium work by
a vocational expert and (2) a personal care assistant which was
described as semi-skilled, heavy work.8

Lambacher indicated that

7. Past relevant employment in the present case means work
performed by Lambacher during the 15 years prior to the date her
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565.
8. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(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
(continued...)
4

she worked as a warehouse worker from February, 1995, to February,
1999, and as a personal care assistant from 1990 to April 5, 2007.
Tr. 136.
Records of the Social Security Administration reveal
that Lambacher had reported earnings in the years 1984, 1986, 1987,
1989 through 1991, 1995 through 1999, and 2004 through 2007. Tr.
121.

Lambacher’s highest annual earnings were in 2006 ($13,246.90)

and her lowest in 1984 ($179.50). Id.

Lambacher’s total earnings

during those fifteen years were $53,015.30 Id.

Lambacher’s work

and earnings amounted to substantial gainful activity only in the

8.

(...continued)
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.
(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.

20 C.F.R. §§ 404.1567 and 416.967.
5

years 1998 ($6290.25), 2005 ($12,470.33) and 2006.9 Lambacher has
no reported earnings after 2007.10 Id.
Lambacher claims that she became disabled on April 5,
2007, because of “asthma, scoliosis, high blood pressure, anxiety,
depression, cervical radiculopathy, degenerative disc disease,
[and] chronic neck, shoulder and arm pain.” Tr. 129.

She

testified that she cannot work because her medications make her
drowsy and tired, she drops things with her right hand, and she
has constant pain in her back, neck and shoulders which varies in
intensity. Tr. 52-53.

The record reveals that Lambacher had “neck

spine fusion” in June, 2001, but still was able to engage in heavy
work as a personal care assistant earning over $12,000 in 2005 and
2006. 130, 171 and 390.
Lambacher reported performing a variety of daily
activities and household chores.

She occasionally laundered

clothing and prepared simple meals. Tr. 146.

Lambacher regularly

watched television, and had cookouts with friends twice a month.

9. Pursuant Federal Regulations a person’s earnings have to rise
to a certain level to be considered substantial gainful activity.
The official website of the Social Security Administration
reveals that in 1998 that amount was $500 per month ($6000 per
year); in 2004 $810 per month ($9720 per year); in 2005 $830 per
month ($9960 per year); in 2006 $860 per month ($10,320 per
year); and in 2007 $900 per month ($10,800 per year). Substantial
Gainful Activity, http://www.ssa.gov/oact/cola/sga.html (Last
accessed March 12, 2013).
10. In 2007 Lambacher’s reported earnings were $3228.13. Tr.
121.
6

Tr. 148.

Plaintiff testified that she was able to take care of

her personal needs, shower and dress herself and that she belonged
to a social club at her residence and helped run bingo games, a
New Year’s Eve Party, and other similar events. Tr. 57 and 59.

In

a document entitled “Function Report - Adult” when given an
opportunity to check “items that [her] illnesses, injuries, or
conditions affect” did not check squatting, talking, hearing,
seeing, memory, completing tasks, understanding, following
instructions, using hands and getting along with others. Tr. 149.
Lambacher also testified that she has no problem with (1) her
memory, (2) getting along with others and (3) crowded places. Tr.
56-57.

With respect to her alleged anxiety and depression she

testified that she never sought counseling and is only receiving
medications from her primary care physician. Tr. 56.

As for

Lambacher’s asthma the record reveals that she has a long history
of smoking and that she continues to smoke.

Tr. 57, 171, 206 and

290.
For the reasons set forth below we will affirm the
decision of the Commissioner denying Lambacher’s applications for
disability insurance benefits and supplemental security income
benefits.
STANDARD OF REVIEW
When considering a social security appeal, we have
plenary review of all legal issues decided by the Commissioner.

7

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 (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,

8

229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d
198, 200 (3d Cir. 2008);
(3d Cir. 1999).

Hartranft v. Apfel, 181 F.3d 358, 360

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 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.
F.2d at 1064.

Mason, 994

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).

9

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 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 and 20 C.F.R. § 416.920; 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,11 (2) has an impairment that is
11. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
(continued...)
10

severe or a combination of impairments that is severe,12 (3) has
an impairment or combination of impairments that meets or equals
the requirements of a listed impairment,13 (4) has the residual

11. (...continued)
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 and 20 C.F.R. § 416.910.
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© and 416.920©. 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) and 416.920(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, 404.1545(a)(2), 416.923 and
416.945(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 nonexertional 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©.
13. 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. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to
prevent an individual from doing any gainful activity, regardless
(continued...)
11

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.14
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 and 416.945; 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).”).

13. (...continued)
of his or her age, education, or work experience.” Section
404.1525 also explains that if an impairment does not meet or
medically equal the criteria of a listing an applicant for
benefits may still be found disabled at a later step in the
sequential evaluation process.
14. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
12

MEDICAL RECORDS
Before we address the administrative law judge’s
decision and the arguments of counsel, we will review some of
Lambacher’s medical records.

We will commence with two sets of

emergency department records from Geisinger South Wilkes-Barre
dated July 11 and November 29, 2006, which predate Lambacher’s
alleged disability onset date of April 5, 2007.
On July 11th, Lambacher visited the emergency department
complaining of abdominal pain, diarrhea and vomiting blood. Tr.
206 and 208.

Lambacher was ambulatory at the time of her arrival

and her blood pressure was 100/66.

Tr. 206.

pain level of 9 on a scale of 1 to 10. Id.
Id.

She complained of a
She denied chest pain.

July 11th was a Tuesday and Lambacher indicated that the pain

started the previous Thursday. Id.

Several diagnostic tests were

performed, including a complete blood count and a complete
metabolic panel. Tr. 204.

The results of those blood tests were

within normal limits. Id.

When the attending medical provider

reviewed Lambacher’s systems, Lambacher denied back and
musculoskeletal problems, bone or joint pain, weakness, headaches,
seizures, dizziness, depression, anxiety, shortness of breath,
cough, and wheezing.15 Tr. 205.

The results of the physical

15. “The review of systems (or symptoms) is a list of questions,
arranged by organ system, designed to uncover dysfunction and
(continued...)
13

examination were essentially normal, other than tenderness in the
abdomen.

Id.

Her gait was normal and with respect to her

musculoskeletal system she had normal range of motion and normal
strength and tone. Id.

Neurologically and psychological she was

noted to be completely normal. Id.

Lambacher was diagnosed as

suffering from gastritis and her condition improved and she was
discharged from the hospital after being administered the drug
Reglan16 with instructions to follow-up with her primary care
physician.

Tr. 204.
On November 29th Lambacher visited the emergency

department complaining of bilateral lower leg swelling. Tr. 188.
Lambacher was ambulatory at the time of her arrival and her blood
pressure was 123/79.

Id.

When the attending medical provider

reviewed Lambacher’s systems, Lambacher denied back and
musculoskeletal

problems, bone or joint pain, weakness,

headaches, seizures, dizziness, depression, anxiety, shortness of
breath, cough, and wheezing. Tr. 187.

The results of the physical

examination were essentially normal, other than bilateral lower

15. (...continued)
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 13, 2013).
16. “Reglan is used short-term to treat heartburn caused by
gastroesophageal reflux[.]” Reglan, Drugs.com, http://www.
drugs.com/reglan.html (Last accessed March 12, 2013.)
14

extremity edema.

Id.

Her gait was normal and with respect to her

musculoskeletal system she had normal range of motion and normal
strength and tone. Id.

Neurologically and psychological she was

noted to be completely normal. Id.

Lambacher denied abdominal

pain, diarrhea or vomiting. Tr. 189.

Range of motion in the

bilateral lower extremities was normal and Lambacher had no
numbness. Id.

Lambacher denied any pain. Id.

Several diagnostic

tests were performed, including a complete blood count and a
complete metabolic panel. Tr. 186.

The diagnostic impression was

bilateral leg edema of unknown etiology. Id.

Lambacher was

discharged from the hospital with instructions to follow-up with
her primary care physician. Tr. 203.
After the alleged onset date of April 5, 2007, Lambacher
on June 17, 2007, visited the emergency department at Geisinger
South Wilkes-Barre complaining of injuries received from an
assault by her brother. Tr. 246.

Lambacher was punched in the

left eye and kicked in the right ribs and shoulder. Tr. 249.

The

results of a physical examination were essentially normal other
than she had “minimal tenderness [Left] infraorbital area”17 and
her right shoulder would not move because of pain. Tr. 246

Her

gait was normal and with respect to her musculoskeletal system,

17. The “infraorbital area” refers to the area below or beneath
the eye socket.
15

other than her right shoulder, she had normal range of motion and
normal strength and tone. Id.

Neurologically and psychological

she was noted to be completely normal. Id.

An x-ray of the right

shoulder revealed “no evidence of fracture, dislocation or bony
destruction.” Tr. 252.

Lambacher was discharged from the hospital

ambulatory after receiving pain medications and a sling. Tr. 250
and 258.
On June 29, 2007, Lambacher visited the emergency
department at Geisinger South Wilkes-Barre complaining of an
altered mental state with extremity tremors and edema. Tr. 227.
Lambacher was taken to the hospital by ambulance. Id.

The results

of a physical examination were essentially normal. Tr. 224. Her
gait was normal and with respect to her musculoskeletal system she
had normal range of motion and normal strength and tone. Id.
Neurologically she was noted to be completely normal. Id.
Blood tests revealed the presence of opiates and cannabinoids
(marijuana). Tr. 232.
Tr. 237.

A CT scan of Lambacher’s head was normal.

The diagnostic impression was “medication [reaction] –

side effect to narcotics and muscle relaxant.” Tr. 223.

Lambacher

was discharged from the hospital with instructions to stop taking
the narcotic Vicodin and the muscle relaxant Soma. Tr. 239.
Following complaints of numbness, tingling and fatigue,
Lambacher on November 7, 2007, had an MRI of the cervical spine

16

performed at Imaging Services of Wyoming Valley Health Care
System. Tr. 389-390.

The MRI revealed the pre-existing fusion

surgery at C5-C6, some narrowing of the spinal canal with no cord
compromise, and only minimal central disc bulges with no evidence
of neuroforaminal stenosis at any level. Id.
The record contains treatment notes from Lambacher’s
treating physician, Mark Gonsky, D.O., beginning in December,
2007. Tr. 279.

The treatment notes are dated December 20, 2007,

January 21, February 18 and 23, March 17, April 21, May 9 and 22,
June 23 and 30, August 14 and 25, September 4 and 29, and November
10 2008, and January 19, February 16, March 16, May 28, July 29
and September 24, 2009. Tr. 262-264, 266, 273, 275-279, 331-332,
334-335 and 337-354.

Dr. Gonsky’s treatment notes show that the

results of physical examinations routinely and consistently were
essentially normal other than with respect to sporadic
appointments where she had cervical muscle spasm, tenderness, and
right shoulder reduced range of motion and not all of these
conditions were

observed at each of the appointments.18 Id.

Out

of a total of 21 appointments there were 11 appointments where one
or more of these conditions were observed leaving 10 appointments
where Dr. Gonsky reported completely normal (within normal limits

18. Right shoulder reduced range of motion was only observed and
reported on one occasion. Tr. 279. Lambacher is right-handed.
Tr. 149.
17

(WNL)) physical examination findings Id.

Dr. Gonsky on February

16, 2009, completed a document on behalf of Lambacher entitled
“Pennsylvania Department of Public Welfare Employability ReAssessment Form.” Tr. 320-321.

In that document Dr. Gonsky in a

conclusory fashion (without specifying Lambacher’s ability to sit,
stand, walk, lift/carry and perform postural activities) that
Lambacher was permanently disabled. Id.
During this time frame, objective tests also revealed
only mild conditions and symptoms.

An electromyogram performed on

April 30, 2008, was completely normal and revealed “no
electrophysiological evidence of compression median or ulnar nerve
neuropathy, myopathy, or cervical radiculopathy.” Tr. 179.

A

cervical spine x-ray performed on the same day revealed
“postoperative changes at the level of C5-C6" but no significant
change in the overall appearance of the cervical spine as compared
to [the] study of 2/4/2002.”

Tr. 272.

The record reveals three other occasions -- February 20,
August 23 and September 2, 2008 -- where Lambacher visited the
emergency department at Geisinger South Wilkes-Barre. Tr. 170-178,
285-291 and 294.
On February 20, 2008, Lambacher complained of moderate
chest pain which radiated to the left arm but she denied any other
complaints. Tr. 170. It was noted that the medical provider

18

reviewed ten systems with Lambacher with no reported complaints.
Tr. 171.

Other than an elevated blood pressure at 145/90, the

results of a physical examination were normal, including she had a
supple, nontender neck; her back was symmetrical on inspection and
there was no deformity and no midline tenderness; her upper
extremities were normal with no edema, discoloration and she had
good strength in both arms; her lower extremities were normal with
no edema or discoloration; and she had a normal sensorium, cranial
nerves II-XII were grossly intact, she had normal speech, and no
weakness in the arms or legs. Tr. 172-173.
this appointment was normal. Tr. 174.

An EKG performed at

A chest x-ray revealed

“[n]o acute intrathoracic process.” Tr. 178. The diagnostic
impression was “[c]hest pain of uncertain etiology.” Tr. 174.
Lambacher was discharged from the hospital on the same day. Id.
On August 23, 2008, Lambacher complained of left elbow
pain and swelling but she denied any other complaints.
289.

Tr. 285-

The results of a physical examination were completely

normal, other than tenderness and swelling on the posterior aspect
of the left elbow. Tr. 285-286.

An x-ray of the left elbow

revealed “no findings of an acute fracture or elbow joint
effusion” but “a small calcification seen adjacent to the

19

olecranon19 which has increased in size since the previous series
from 6/30/05.” Tr. 289. The diagnostic impression was “cellulitis
left elbow.” Tr. 286.

Lambacher was discharged from the hospital

on the same day. Tr. 287.
On September 2, 2008, Lambacher complained of low back
pain and denied any similar pain in the past; she complained of
some left arm numbness and pain and claimed she had chronic neck
pain. Tr. 290.

She also complained of a headache. Id.

any history of high blood pressure and diabetes. Id.

She denied
The report

of this appointment specifically notes that Lambacher “was
discharged from previous family physician’s practice after
breaking a contract with chemical substances.”

Id.

The physical

examination portion of the report states in toto as follows:
“Afrebrile. Blood pressure 131/82, pulse 74, respiratory rate 18.
She is alert and oriented in no acute distress. Skin is warm and
dry. Lungs are clear with good breath sounds bilaterally. Heart
regular rhythm without extra sounds. Neck: There is mild posterior
tenderness. Back: Mild diffuse bilateral lumbar paravertebral
muscle tenderness with no obvious spasm. No costovertebral angle
tenderness. She has slightly decreased strength in her right upper

19. The olecranon is the large bony process (eminence) on the
upper end of the ulna that projects behind the elbow joint and
forms the point of the elbow. See Dorland’s Illustrated Medical
Dictionary, 1317 (32nd Ed. 2012).
20

extremity as compared to the left. Lower extremity strength is
intact and symmetrical. She has good deep tendon reflexes in the
upper and lower extremities which are symmetrical.” Id.

The

diagnostic impression was “[b]ack pain of probable muscular
etiology in patient with chronic neck pain.” Id.

Lambacher was

prescribed pain medications and discharged from the hospital. Id.
On October 23, 2008, Maria Mera, D.O., a state agency
physician performed a one-time examination of Lambacher and
concluded that Lambacher could not engage in full-time sedentary
work. Tr. 295-298, 301-302 and 316-318.

The primary item

preventing Lambacher from doing so was Lambacher’s inability to
lift/carry more than 10 pounds and sit for more than 2-4 hours
during and 8-hour workday. Tr. 295.

Dr. Mera also stated that

Lambacher could never engage in bending, kneeling, stooping,
crouching, balancing and climbing. Tr. 296.

Upon physical

examination, Lambacher had 4+/5 strength in her right upper
extremity, 4/5 strength in her right grip, and normal strength in
her left upper extremity and both lower extremities. Tr. 317.
Lambacher had somewhat decreased range of motion in her right
shoulder and lumbar spine, and normal range of motion in her left
shoulder and cervical spine.

Id.

On December 17, 2008, a state agency physician, Louis
Tedesco, M.D., examined Lambacher’s medical records and concluded

21

that Lambacher could engage in a limited range of light work. Tr.
309-315.

Dr. Tedesco found that Lambacher could occasionally

lift/carry 20 pounds and frequently lift/carry 10 pounds,
stand/walk 6 hours in an 8-hour workday and sit 6 hours in an 8hour workday.

Tr. 310.

Dr. Tedesco found that Lambacher had no

limitations with respect to pushing and pulling other than as
shown for lifting/carrying. Id.

Dr. Tedesco found that Lambacher

could frequently stoop and balance; occasionally use ramps, climb
stairs and ladders but never ropes and scaffolds; and occasionally
kneel, crouch and crawl. Tr. 311. Dr. Tedesco found that Lambacher
had no manipulative, visual or communicative limitations and that
the only environmental limitation was that Lambacher had to avoid
concentrated exposure to fumes, odors, dusts, gases and poor
ventilation, etc. Tr. 312.
Finally, the record contains a report of a visit by
Lambacher to the emergency department at the Wyoming Valley Health
Care System on July 23, 2009, where she complained of chest pain.
Tr. 377-382.

Other than complaining of chest pain, Lambacher made

no other complaints when the attending medical provider reviewed
Lambacher’s systems. Tr. 378. The results of a physical
examination were normal including no tenderness in the back upon
palpation, normal inspection of the back, normal inspection of the
upper and lower extremities, normal upper and lower extremity

22

range of motion, normal gait, normal memory, and no focal motor or
sensory deficits. Tr. 379.
normal. Id.

Results of laboratory tests were

A chest x-ray revealed “[n]o acute pulmonary

abnormality.” Tr. 355.
and discharged.

Lambacher was prescribed pain medications

Tr. 379.

DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Lambacher had not engaged
in substantial gainful work activity since April 5, 2007, the
alleged disability onset date. Tr. 36.
At step two of the sequential evaluation process, the
administrative law judge found that Lambacher had the following
severe impairments: “asthma, fibromyalgia, status post cervical
fusion and degenerative disc disease[.]” Tr. 37.

The

administrative law judge found that Lambacher’s high blood
pressure, depression and anxiety were non-severe impairments and
that a recent claim by her of right hand problems and swelling in
both legs was not supported by the medical records. Id.
At step three of the sequential evaluation process the
administrative law judge found that Lambacher’s impairments did
not individually or in combination meet or equal a listed
impairment. Tr. 38.

23

At step four of the sequential evaluation process the
administrative law judge found that Lambacher could not perform
her past relevant work but that she had the residual functional
capacity to perform a limited range of light work except the work
could not involve climbing ropes, scaffolds or ladders, exposure
to vibration or to pulmonary irritants, and could not involve
overhead work or exposure to temperature/humidity extremes. Id.
In arriving at this residual functional capacity the
administrative law judge found that Lambacher’s statements about
her pain and functional limitations were not credible. Tr. 39. The
administrative law judge also rejected the one-time evaluation of
Dr. Mera and relied on the opinion of Dr. Tedesco that Lambacher
could engage in light work. Tr. 42.

The ALJ also found that the

conclusory opinion of Dr. Gonsky was not supported by Dr. Gonsky’s
treatment notes and in light of the contrary opinion of Dr.
Tedesco rejected Dr. Gonsky’s conclusory opinion. Tr. 41-42.
At step five, the administrative law judge based on a
residual functional capacity of a limited range of light work as
described above and the testimony of a vocational expert found
that Lambacher could perform work as a ticket taker, inspector and
usher, and that there were a significant number of such jobs in
the regional, state and national economies. Tr. 43 and 69-70.

24

The administrative record in this case is 391 pages in
length and we have thoroughly reviewed that record.

The

administrative law judge did an excellent job of reviewing
Lambacher’s medical history and vocational background in his
decision. Tr. 34-44.

Furthermore, the brief submitted by the

Commissioner sufficiently reviews the medical and vocational
evidence in this case. Doc. 14, Brief of Defendant.

Lambacher

argues that the administrative law judge erred by (1) rejecting
the opinion of Dr. Mera, (2) failing to find that Lambacher needed
to use a cane to ambulate as well as needed daytime rest periods
or naps because of side effects of pain medications, and (3)
failing to appropriately assess Lambacher’s credibility.

We find

no merit in Lambacher’s arguments.
The Social Security regulations require that an
applicant for disability insurance or supplemental security income
benefits come forward with medical evidence “showing that [the
applicant] has an impairment(s) and how severe it is during the
time [the applicant] say[s] [he or she is] disabled” and “showing
how [the] impairment(s) affects [the applicant’s] functioning
during the time [the applicant] say[s] [he or she is] disabled.”
20 C.F.R. § 404.1512©.

Lambacher failed to provide such evidence.

No treating or examining physician or psychiatrist provided a
statement indicating that Lambacher prior to December 31, 2007,
25

had functional limitations for the requisite continuous 12 month
period20 that would prevent her from engaging in the limited range
of light work set by the administrative law judge. Furthermore,
after the date last insured the ALJ appropriately relied on the
opinion of Dr. Tedesco in rejecting the opinion of Dr. Mera and
the conclusory opinion of Dr. Gonsky.
entitled to any special treatment.

Dr. Mera’s opinion was not

She was not a treating

physician and only examined Lambacher on one occasion.

The ALJ

committed no error by accepting the opinion of Dr. Tedesco and
rejecting the opinion of Dr. Mera.

Dr. Tedesco specifically

opined that Dr. Mera’s opinion was an overestimate of Lambacher’s
functional limitations and unsupported by the medical records. Tr.
314-315.

As for Dr. Gonsky’s conclusory opinion the ALJ

appropriately explained his rejection of that opinion as follows:
The undersigned Administrative Law Judge . . . rejects
this opinion as being without support. These forms
do not require the doctor to justify their opinions
through objective medical findings, diagnostic test
results or other competent evidence. A review of the
evidence of record, including Dr. Gonsky’s, indicate
no objective findings . . . indicative of a disabling
cervical condition.

20. As stated earlier in this memorandum 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).
26

Tr. 41.

From our review of the record we cannot conclude that the

ALJ abused his discretion.

Furthermore, the opinion of Dr.

Tedesco supports the ALJ’s decision.
The administrative law judge relied on the opinion of Dr.
Tedesco, a state agency physician who reviewed Lambacher’s medical
records and the opinion of Dr. Mera.

The administrative law

judge’s reliance on the opinion of Dr. Tedesco was appropriate. See
Chandler v. Commissioner of Soc. Sec., 667 F.3d. 356, 362 (3d Cir.
2011)(“Having found that the [state agency physician’s] report was
properly considered by the ALJ, we readily conclude that the ALJ’s
decision was supported by substantial evidence[.]”).
With regard to the claim that Lambacher needed to use a
cane, no treating physician indicated that Lambacher had to do so
or prescribed such.

Furthermore, the medical records repeatedly

reported that Lambacher had a normal gait and no loss of strength
in the lower extremities.

As for her need for rest period/naps,

the ALJ found that Lambacher’s asserted limitation were not
credible.
The administrative law judge stated that Lambacher’s
statements concerning the intensity, persistence and limiting
effects of her symptoms were not credible to the extent that they
were inconsistent with the ability to perform a limited range of
light work.

The administrative law judge was not required to
27

accept Lambacher’s claims regarding her physical and 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 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 Lambacher testify, the administrative law judge is the one
best suited to assess the credibility of Lambacher.
We are satisfied that the administrative law judge
appropriately took into account all of Lambacher’s credibly
established limitations 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
28

decision of the Commissioner.
An appropriate order will be entered.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: March 14, 2013

29