Gardner v. Astrue
Filing
13
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 entered. Signed by Honorable Richard P. Conaboy on 3/25/13. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROGER S. GARDNER,
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Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant
CIVIL NO. 3:12-CV-193
(Judge Conaboy)
MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Roger S. Gardner’s claim for social security
disability insurance benefits.
On May 22, 2008, Gardner protectively filed1 an
application for disability insurance benefits. Tr. 19, 94 and 117127.2
The application was initially denied by the Bureau of
Disability Determination3 on September 29, 2008. Tr. 19 and 951. 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 April 23,
2012.
3. 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
(continued...)
98.
On October 21, 2008, Gardner requested a hearing before an
administrative law judge. Tr. 19 and 101-102.
After 15 months had
passed, a hearing was held on January 14, 2010. Tr. 19 and 32-74.
On February 23, 2010, the administrative law judge issued a
decision denying Gardner’s application. Tr. 19-27.
As will be
explained in more detail infra, the administrative law judge found
that Gardner could engage in a limited range of light work. Tr.
22-23. On March 22, 2010, Gardner requested that the Appeals
Council review the administrative law judge’s decision. Tr. 115116.
After 20 months had passed, the Appeals Council on November
25, 2011, concluded that there was no basis upon which to grant
Gardner’s request for review. Tr. 1-6.
Thus, the administrative
law judge’s decision stood as the final decision of the
Commissioner.
Gardner then filed a complaint in this court on January
31, 2012.
Supporting and opposing briefs were submitted and the
appeal4 became ripe for disposition on July 16, 2012, when Gardner
elected not to file 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)
Administration. Tr. 95.
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.
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 Gardner meets the insured status requirements of
the Social Security Act through December 31, 2013.
Tr. 19, 21 and
127.
Gardner, who was born in the United States on May 8,
1958, graduated from high school in 1976. Tr. 38, 119,and 126127.
Gardner can read, write, speak and understand the English
language and perform basic mathematical functions.
148 and 153.
Tr. 45, 143,
During his elementary and secondary schooling
Gardner attended regular education classes. Tr. 148.
After
graduating from high school, Gardner did not obtain any other
training. Id.
Gardner is right-handed. Tr. 39.
Gardner is 6 feet
tall and weighs 171 pounds, which places him in the category of
normal weight.5 Id.
Gardner has past relevant employment6 as a “laborer
machine operator” which was described as semi-skilled, medium work
5. Gardner’s Body Mass Index (BMI) is 23.2. Adult BMI
Calculator, Centers for Disease Control and Prevention,
http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_
bmi_calculator/bmi_calculator.html (Last accessed March 18,
2013).
6. Past relevant employment in the present case means work
performed by Gardner 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.
3
by a vocational expert.7 Tr. 62.
In documents filed with the
Social Security Administration Gardner stated that he worked as a
7. 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
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.
4
“laborer” for a “[r]efining plate manufactorer” (sic) from June
28, 1976 to May 14, 2008. Tr. 145.
Gardner described the position
as a “[m]achine operator and inspector.” Id.
He stated that
during an 8-hour workday he would walk 4 hours and stand 8 hours.
Id.
With regard to the amounts and items lifted and carried,
Gardner stated that he lifted and carried metal plates to and from
machines, the heaviest items he lifted weighed 50 pounds and he
frequently lifted items weighing 25 pounds. Id.
Records of the Social Security Administration reveal
that Gardner had reported earnings in the years 1976 through 2008.
Tr. 139.
Gardner’s highest annual earnings were in 2002
($34,929.79) and his lowest in 1976 ($2869.60). Id.
Gardner’s
total earnings during those 33 years were $791,679.52. Id.
Gardner stopped working on May 14, 2008. Tr. 144.
For the reasons set forth below we will affirm the
decision of the Commissioner denying Gardner disability insurance
benefits.
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.,
F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d
181
857, 858 (3d Cir. 1995).
However, our review of the
5
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);
(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.
6
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).
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
7
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 claims for disability insurance benefits.
C.F.R. §404.1520; Poulos, 474 F.3d at 91-92.
See 20
This process
requires the Commissioner to consider, in sequence, whether a
claimant (1) is engaging in substantial gainful activity,8 (2) has
an impairment that is severe or a combination of impairments that
is severe,9 (3) has an impairment or combination of impairments
8. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further.
9.
The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is
(continued...)
8
that meets or equals the requirements of a listed impairment,10
(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.11
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
9. (...continued)
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).
10. 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
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.
11. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
9
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).”).
MEDICAL RECORDS AND OTHER EVIDENCE
Before we address the administrative law judge’s
decision and the arguments of counsel, we will review some of
Gardner’s medical records.
We will commence with records from
April to September, 2004, which predate Gardner’s alleged
disability onset date of May 14, 2008.
It appears that Gardner
contends that these records reveal at least a partial impetus for
his present medical condition and his alleged inability to work.
See Doc. 11, Plaintiff’s Brief, p. 2.
On April 23, 2004, Gardner “fell [] on some stairs and
landed directly on his [left] forearm.” Tr. 197.
On April 24,
2004, Gardner was initially treated at the Muncy Valley Hospital,
Muncy, Pennsylvania. Tr. 187-195.
An x-ray performed at that
hospital revealed a “[m]ildly comminuted and displaced fracture of
the mid to distal ulnar shaft.” Tr. 196.
A splint was applied to
Gardner’s left lower arm, he was prescribed pain medications and
10
discharged from the hospital with instructions to follow-up with
his primary care physician. Tr. 192-194.
A physical examination performed on April 27, 2004, by
John H. Bailey, M.D., his primary care physician, revealed the
following: “There is obvious crepitus over the ulnar aspect of the
forearm.
He has 2 lacerations, both of which appear relatively
superficial.
No significant bleeding from either site. No
drainage present. Neurological status is intact distally.
have some swelling of the hand.
elbow or wrist.” Tr. 197.
He does
There is no tenderness at the
Dr. Bailey’s impression was that
Gardner suffered from a “[Left] isolated ulnar [fracture]” and
stated in his report of the appointment that “these fractures tend
to heal with conservative treatment but do occasionally require
prolonged conservative treatment.” Id.
Dr. Bailey placed Gardner
in a long arm case and scheduled a follow-up appointment in 3
weeks. Id.
It was stated that Gardner would be left in the cast
for 6 weeks followed by “short-arm casting.” Id.
On May 18, 2004, Gardner had an appointment with Dr.
Bailey who found that Gardner was “doing relatively well” and was
having “no problems.” Tr. 198.
Gardner’s cast was “fitting
nicely” and his neurovascular status was intact. Id.
An x-ray
revealed “[s]ome evidence of new bone formation.” Id.
A follow-up
appointment was scheduled in one month. Id.
11
At an appointment on June 24, 2004, Dr. Bailey removed
the cast from Gardner’s arm. Tr. 199.
After removing the cast, an
examination revealed “minimal tenderness at the [fracture] site.”
Id.
Gardner was directed to work on his range of motion of the
elbow. Id.
An x-ray of the same date revealed a “[h]ealing
fracture, left ulna, in anatomic alignment.” Tr. 203.
A physical
examination of Gardner by Dr. Bailey on July 8, 2004, revealed a
healing fracture and left elbow effusion (swelling) “most likely
secondary to immobilization in the cast.” Tr. 200.
An x-ray of
the left elbow revealed “[j]oint effusion” but “[n]o acute bony
deformity[.]” Tr. 201.
Gardner was referred to physical therapy
which he attended from July 13 to September 3, 2004, when he was
discharged from the program. Tr. 200 and 204-216.
Gardner did not
seek further treatment for his arm and the record reveals that he
returned to work. Tr. 139 and 145.12
The next medical record that we encounter is from June
12, 2007. Tr. 217-224.
On that date, Gardner visited the
emergency department of the Muncy Valley Hospital complaining of
right knee pain. Id.
An x-ray revealed no soft tissue swelling
and no evidence of a fracture. Tr. 219. Gardner was discharged
12. In 2004 Gardner’s total earnings were $31,951.08, in 2005
$32,902.09, in 2006 $34,302.49, in 2007 $32,064.44 and in 2008
$16,757.27. As stated earlier, Gardner stopped working on May 14,
2008.
12
from the hospital and he did not seek further medical attention
for his knee. Tr. 224.
Gardner continued to work. Tr. 139 and
145.
On August 2, 2007, Gardner was found “laying prone”
along the side of the road at the 1600 Block, John Brady Drive,
Muncy Creek Township by Pennsylvania State Police. Tr. 247.
The
report of this incident states in part as follows: “Appears he
fell [and] struck his face [and] with his glasses on the edge of
[the] pavement.
We only notice blood on his face where [] he was
laying and he appears to have been incontinent of urine.
There
was a cold ‘pounder’ of beer in his pocket [and] a strong odor of
an ETOH beverage on his breath. No signs of any broken car parts
in the area . . . did not know where he was or what had happened .
. . . Noted edema to the [left] side of his face with eye swollen
shut, lacerations noted to his mouth [and] small cuts on his hands
. . . Manual c spine taken right away, no obvious trauma, grimace
or pain upon [palpation] to back of head, cervical, thoracic,
lumbar, sacral, coccyx spine, no fluid from ears, nose or mouth
with the exception of blood from laceration to his lip. No Trauma
or pain upon palp[atation] to trunk, back, noted some scrap on his
upper extremities.”
Id. Gardner was taken to the emergency
department at Muncy Valley Hospital where he received initial
treatment. Tr. 237-244.
He was then transferred to the
13
Williamsport Hospital because of the “need for neurosurgical
specialist care not available at [Muncy Valley Hospital].” Tr.
245.
Blood work revealed that his blood alcohol level was
over 4 times the legal limit (320 mg/dL or .320 g/dL). Tr. 228.
While at Muncy Valley Hospital Gardner was uncooperative but when
he was transferred to the Williamsport Hospital he was in a stable
condition. Tr. 243.
A CT scan of the face revealed a “[l]eft
orbital floor fracture with depression of fragments into the
sinus” and a “deviated nasal septum to the left.” Tr. 232. A CT
scan of the head revealed a “[p]ost-traumatic bilateral
subarachnoid hemorrhage13 within the bilateral sylvian fissure and
the bilateral frontal convexity sulcus.” Tr. 231.
X-rays of the
cervical spine revealed “no evidence of any acute fracture” but
“osteoarthritic changes.” Tr. 235.
After his discharge from the
hospital, Gardner again returned to work. Tr. 139 and 145.
There
is no indication in the record that Gardner received additional
treatment for the conditions identified in the CT scans of the
head and face.
13. “Subarachnoid hemorrhage is bleeding in the area between the
brain and the thin tissues that cover the brain. This area is
called the subarachnoid space.” Subarachnoid hemorrhage, A.D.A.M.
Medical Encyclopedia, PubMed Health, U.S. National Library of
Medicine, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001720/
(Last accessed March 19, 2013).
14
In May 2008, Gardner’s employment was terminated because
of poor performance. Tr. 144.
Gardner then simultaneously applied
for unemployment compensation benefits and disability insurance
benefits.
On September 16, 2008, Gardner was examined by R. Craig
Nielsen, M.D., on behalf of the Bureau of Disability
Determination. Tr. 249-258.
During that examination, Gardner
complained of problems with his left arm. Tr. 249.
Dr. Nielsen
diagnosed Gardner as suffering from (1) alcoholism active with no
desire to stop drinking; (2) hypertension, presently not treated,
probably essential; (3) left arm weak flexion and inability to
actively abduct the left shoulder, probably neurologic damage from
old fall injury; and (4) chronic obstructive pulmonary disease
(COPD).14 Tr. 252.
Dr. Nielsen after conducting an interview and
physical examination which was essentially normal (other than
revealing high blood pressure, signs of COPD and obvious weakness
of the left upper extremity) concluded that Gardner could engage
in a limited range of light work.
Tr. 253-254.
Dr. Nielsen did
find that Gardner’s lifting/carrying ability of the left arm was
limited to 2 to 3 pounds.15
14. Gardner told Dr. Nielsen he smokes 1 to 1 ½ packs of
cigarettes per day and that he has no desire to quit. Tr. 250.
15.
Gardner testified that he could only lift 50 pound to waste
(continued...)
15
On September 25, 2008, Mary Ryczak, M.D., reviewed
Gardner’s medical records on behalf of the Bureau of Disability
and determined that Gardner could engage in a limited range of
light work. Tr. 259-265.
She found that Gardner had the ability
to 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 8-hour workday.
Dr. Ryczak did find that Gardner was
limited with respect to pushing and/or pulling with the left upper
extremity and reaching in all directions, and that he could not
climb ladders, ropes, scaffolds, and could only occasionally
crawl. Tr. 260-261.
On September 17, 2009, Gardner had an appointment with
Steven Yordy, M.D., apparently to establish a treatment
relationship. Tr. 284-285.
At this appointment Gardner’s high
blood pressure and problem with his left upper extremity were
addressed. Id.
When Dr. Yordy reviewed Gardner’s systems,16
Gardner denied fatigue, fever, night sweats, cough, dyspnea,
wheezing, chest pain, irregular heartbeat or palpitations,
15. (...continued)
level with his left arm but that he could lift and carry up to 40
pounds with his right arm. Tr. 51.
16. “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 18, 2013).
16
abdominal pain, constipation, diarrhea, vomiting, dysuria, and
hematuria. Tr. 284.
The results of a physical examination were
normal except for high blood pressure at 140/100 and positive pain
in the left shoulder with active/passive range of motion. Tr. 284285.
Gardner was unable to abduct the left shoulder. Id.
Dr.
Yordy noted that Gardner’s extremities appeared normal. Tr. 285.
Dr. Yordy’s assessment was that Gardner suffered from adhesive
capsulitis of the left shoulder, benign hypertension, a history of
alcoholism and tobacco abuse. Id.
Dr. Yordy prescribed the drug
atenolol for Yordy’s high blood pressure and ordered an MRI of
left shoulder. Id.
The MRI was performed on December 3, 2009, and
revealed (1) a moderate degree of skeletal muscle atrophy about
the shoulder, (2) extensive soft tissue edema (swelling), (3) no
discernable rotator cuff or biceps tendon tears, and (4)
degenerative arthritis of the acromioclavicular joint. Tr. 286.
On December 17, 2009, Gardner had an appointment with
Ronald E. Disimone, M.D., regarding “lack of use of his [left]
shoulder and arm.” Tr. 296-297.
Gardner told Dr. Disimone that
the “[p]roblem has been happening since approximately 5 y[ears]
ago when he had a broken arm” and “has bothered him since then and
he’s chosen not to have any treatment up to this point.” Tr. 296.
Gardner also told Dr. Disimone that he drinks alcohol daily and
smokes 1 ½ packs of cigarettes per day and that his hobbies
17
include fishing and hunting. Id.
A physical examination revealed
elevated blood pressure, extreme left arm weakness, virtually no
grip strength in the left hand, and decreased range of motion and
strength of the left upper extremity.
Id.
However, Gardner’s
neck and back were non-tender and he had no motor or sensory
deficits. Id.
After reviewing Gardner’s recent MRI of the left
shoulder, Dr. Disimone’s impression was as follows: “Healed [left]
forearm fracture, deltoid weakness.” Tr. 297.
Dr. Disimone
recommended that Gardner have an electromyography (EMG) of the
left upper extremity to rule out any nerve damage. Id.
The EMG was performed on December 23, 2009.
The report
of the EMG stated in part as follows:
This is an abnormal study. There is electrodiagnostic
evidence of a severe left C5 radiculopathy affecting
all of the C5 innervated tested muscles. Of
significance is that the left rhomboids, which are
innervated directly from the C5 spinal root and has
no cross innervation from any other level, has signs
of severe denervation. The presence of chronic
repetitive discharges and myotonic discharges on
his biceps are evidence that this is a chronic
radiculopathy.
Tr. 287-288.
The C5 tested muscles were the biceps brachii,
deltoid, supraspinatus, rhomboids, and upper cervical paraspinals.
Tr. 290.
These muscles are involved in the flexion, adduction,
abduction and rotation of the shoulder, the abduction of the arm,
the flexing of the elbow, the supination of the forearm and the
18
stability of the spine.17 The report further indicated that there
was some evidence of very limited reinnervation and that there was
no guarantee that a “decompresion laminectomy” would result in
“full reinnervation and strength on these muscles.” Tr. 288. The
report noted that Gardner had a “poor prognosis” but also the need
for “[c]linical correlation.” Tr. 280.
On December 29, 2009, Gardner had an appointment with
Dr. Disimone and complained about “upper extremity weakness” but
Gardner stated that he did not “have any pain or any discomfort in
his neck.” Tr. 291.
Dr. Disimone’s impression was chronic
cervical radiculopathy and left upper extremity weakness “status
post [left] forearm fracture, healed.” Id.
an MRI of the cervical spine. Id.
Dr. Disimone ordered
That MRI which was performed on
January 4, 2010, revealed “[m]ultilevel spinal stenosis . . .
associated with spondylosis as well as malalignment” and
“significant neural foraminal compromise seen at multiple levels
secondary to osteophyte formation.”
Tr. 292.
No disc herniations
were seen. Id.
On January 11, 2010, Gardner had an appointment with Dr.
Disimone to review the results of the MRI. Tr. 298.
It was
17. Flexion is movement resulting in the reduction of a joint
angle; adduction is movement toward or beyond the midline of the
body in the frontal plane; abduction is movement of a body part
away from the midline of the body; and supination is rotation
laterally.
19
observed that Gardner continued to have left upper extremity
weakness which was “unchanged since his first visit.” Id.
Gardner
was referred to another physician for further treatment of his
cervical condition and instructed to follow-up with Dr. Disimone
as needed. Id.
After the administrative law judge decision on February
23, 2010, Gardner submitted to the Appeals Council a letter from
Dr. Yordy which states in toto as follows:
Mr. Roger Gardner clearly in my mind would be classified
as disabled due to his medical condition. I see little
chance he could ever work in any labor-type job. He
does have cervical spinal stenosis with damage to the
C5 nerve which renders the left arm pretty much useless.
He suffers from left arm/shoulder muscle atrophy and
weakness. He has not seen a neurosurgeon for an opinion
on this though it appears from the EMG results some of
this damage is permanent.
Tr. 302.
Dr. Yordy did not provide a detailed functional
assessment of Gardner’s ability to lift, carry, stand, walk, sit,
push, pull, and perform postural activities such as bending,
stooping and crouching.
The only detailed assessments in the
record are from Dr. Nielsen and Dr. Ryczak who concluded that
Gardner could engage in a limited range of light work.
Although Gardner claims that he became disabled on May
14, 2008, because of a inability to lift heavy objects and use his
left upper extremity and the associated pain, records of the
Social Security Administration reveal that during the 2nd quarter
20
of 2008 he received $1970.00 in unemployment compensation, during
the 3rd quarter of 2008 he received $7130.00, during the 4th
quarter of 2008 he received $5408.00, during the 1st quarter of
2009 he received $4992.00 and during the 2nd quarter of 2009 he
received $416. Tr. 132-133. At the administrative hearing on
January 14, 2010, Gardner testified that he was still receiving
unemployment compensation benefits. Tr. 39-40.18
18. Gardner contends that the ALJ used his receipt of
unemployment compensation as one reason to find that he was not
disabled. Gardner argues this was error. We find no merit to
this argument. It is clear from a review of the ALJ’s decision he
considered Gardner’s receipt of unemployment benefits in
permissible manner, i.e., to judge Gardner’s credibility.
An individual can only collect unemployment compensation if
the individual is able and willing to accept work. 43 P.S.
§801(d)(1). The Pennsylvania Department of Labor and Industry’s
website indicates the following: “UC is for people who lost a job
because of something that wasn’t their fault. If you’re out of
work because your employer had to make cutbacks, close an office,
went out of business or something you couldn’t control, it’s
possible that you will be eligible to collect UC. If your out of
work because you quit, you might not be eligible for UC. If you
were fired from your company, you might not be able to collect UC.
Finally, you must be able and ready to return to work(either to
your old job or a new one) to claim UC.”
The Pennsylvania Department of Labor and Industry further
published a handbook which indicates that to be eligible for UC a
claimant must file timely biweekly claims for the weeks that the
claimant is unemployed. The handbook further indicated that a
claimant is ineligible if the claimant limits the number of hours
he or she works when there is additional work available.
Pennsylvania Unemployment Compensation Handbook, Pennsylvania
Department of Labor & Industry, Office of Unemployment
Compensation Benefits, http://www.lancasterlibraries.org/lslc/
lib/lslc/biz_pdfs/pennsylvania_unemployment_compensation_handbook.
pdf (Last accessed March 18, 2013).
The fact that Gardner collected unemployment
(continued...)
21
In a document filed with the Social Security
Administration entitled “Function Report - Adult” Gardner stated
that he lived in an apartment by himself. Tr. 159.
Gardner
admitted that he had no difficulty attending to his personal care,
including dressing, bathing, shaving and feeding himself. Tr. 151.
Gardner reported that he did not require reminders to take care of
personal needs and grooming or reminders to take his medications.
Tr. 152.
Gardner is able to prepare simple meals and perform
household chores such as laundry, cleaning, repairs and mowing.
Id.
Gardner needs no encouragement to engage in these activities.
Id. Gardner goes out every day. Tr. 153.
Gardner is able to walk
and drive a car. Id. He shops in stores for clothes and food one
or two times per week “usualy (sic) ½ to 1 ½ hours per trip.”
18. (...continued)
compensation after his alleged disability onset date of May 14,
2008, suggests that he represented when applying for such benefits
that he was able and willing to accept employment. In fact Gardner
testified that he so represented. Tr. 40-41. Also, those who have
an application for unemployment compensation approved are required
to file a claim biweekly for benefits. Pennsylvania Unemployment
Compensation Handbook, Pennsylvania Department of Labor &
Industry, Office of Unemployment Compensation Benefits,
http://www.lancasterlibraries.org/lslc/lib/lslc/biz_pdfs/
pennsylvania_unemployment_compensation_handbook.pdf (Last accessed
March 18, 2013).
Furthermore, Gardner, in a document filed with
the Social Security Administration on July 22, 2008, was asked
what he did from the time he wakes up in the morning until he goes
to bed. Tr. 150. He answered that question by stating “Look for
a job.” Id. The same month Gardner applied for disability
insurance benefits he applied for and received unemployment
compensation. This inconsistent conduct clearly was a factor that
the ALJ could consider when judging Gardner’s credibility.
22
Gardner is able to pay bills, count change, handle a savings
account and use a checkbook/money orders. Id.
Gardner stated that he engages in fishing, hunting and
visiting with family and that he engages in these activities
“whenever [he] can.”
Tr. 154. When asked to describe any changes
in these activities, he stated “[n]ot a lot of change.” Id.
He
reported that “on a regular basis” he goes to “sporting events,
concerts, fishing” but not “often.” Id.
When asked to “[c]heck
any . . . items” on a list that his “illnesses, injuries of
conditions affect” Gardner did not check squatting, bending,
standing, walking, sitting, talking, hearing, stair climbing,
seeing, memory, completing tasks, concentration, understanding,
following instructions and getting along with others. Tr. 155.
He
reported that he could walk 2 miles before he had to rest and that
he finishes what he starts. Id.
In a form entitled “Disability
Report – Appeal” dated October 21, 2008, Gardner when asked
whether there had been any change in his condition since the last
report was completed stated “No.” Tr. 164-167.
At the administrative hearing held on January 14, 2010,
Gardner downplayed his abilities and deviated from his answers set
forth in
the “Function Report - Adult.”
Tr. 43-59.
He stated
that he “used to love to hunt and fish” but that he no longer
engaged in that activity. Tr. 43.
23
However, after making this
assertion, he then testified that he did go fishing with his son
and grandson on one occasion since May of 2008.
Tyr. 44.
He did
admit that he “occasionally attend[s] a concert” but that he does
not go to sporting events. Id.
Gardner testified that he can (1) lift 50 pounds off the
floor to table level with his left arm but cannot carry any weight
with his left arm and (2) he can lift and carry “40 to 50" pounds
with his right arm. Tr. 50-51.
With respect to sitting and
standing, Gardner’s testimony was in conflict with what he
reported in the “Function Report - Adult.”
Gardner stated that he
could only sit “an hour or so” and stand 1-2 two hours. Tr. 51.
Gardner testified that he could only grip things with his left
hand for “a matter of a few minutes” and that he drops things with
his left hand. Tr. 51-52.
As for his right hand, he claimed that
it was not as “severe” as the left. Tr. 52.
He claimed that he
recently developed a problem with his right hand. Id.
Gardner testified that he uses a cell phone; he does
basic cooking; he washes dishes; he does laundry; he goes
shopping;
and he does house cleaning. Tr. 53.
He further
indicated that he watches TV and goes to the local bar and shoots
pool. Id.
24
Gardner testified that he smokes 1 ½ packs of cigarettes
per day and consumes “four to five drinks a day, alcoholic
beverages.” Tr. 44-45 and 55.
When asked about side-effects from medications, Gardner
stated that he had none. Tr. 49.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Gardner had not engaged
in substantial gainful work activity since May 14, 2008, the
alleged disability onset date. Tr. 21.
At step two of the sequential evaluation process, the
administrative law judge found that Gardner had the following
severe impairments: “osteoarthritis of the cervical spine, history
of left ulnar fracture, left carpal tunnel syndrome, bilateral
hearing loss, and chronic obstructive pulmonary disease.” Tr. 21.
The administrative law judge found that a history of subarachnoid
hemorrhage and hypertension were non-severe impairments. Tr. 22.
At step three of the sequential evaluation process the
administrative law judge found that Gardner’s impairments did not
individually or in combination meet or equal a listed impairment.
Id.
At step four of the sequential evaluation process the
administrative law judge found that Gardner could not perform his
25
past relevant medium work as a “laborer machine operator” but had
the residual functional capacity to perform a limited range of
unskilled, light work. Tr. 25.
Specifically, the administrative
law judge found that Gardner could perform light work that
permitted him to occasionally lift 50 pounds with the left upper
extremity, carry 2-3 pounds with the left upper extremity, and
lift and carry 40 to 50 pounds with the right upper extremity.
Gardner had no limitation in standing, walking or sitting.
He was
limited to occupations that required no more than occasional
crawling.
He could not climb ladders, ropes and scaffolds.
He
was limited to occupations which do not require exposure to
hazards such as dangerous machinery and unprotected heights. He
was limited to only occasional reaching in all directions,
including overhead work. He could not be exposed to concentrated
prolonged exposure to fumes, odors, dusts, gases, chemical
irritants and environments with poor ventilation.
He was limited
to jobs which do not require fine bilateral hearing capability. He
was limited to occupations that require no more than occasional
fine fingering, gross handling, overhead reaching, feeling,
pushing and pulling with the right upper extremity to include
operation of hand levers, overhead work, and no prolonged writing
or keyboard work; he cannot perform any of these last functions
(fine fingering, etc.) with the left upper extremity.
26
Finally, he
was limited to jobs requiring no more than simple, routine task,
not performed in a fast-paced production environment, involving
only simple, work-related decisions, and in general, relatively
few work place changes. Tr. 23.
In setting this residual functional capacity,
the
administrative law judge found that Gardner’s medically
determinable impairments could reasonably be expected to cause his
alleged symptoms but that Gardner’s statements concerning the
intensity, persistence and limiting effects of those symptoms were
not credible to the extent they were inconsistent with the ability
to perform a limited range of light work. Tr. 24.
Furthermore,
the ALJ relied on the opinions of Dr. Nielsen and Dr. Ryczak. Tr.
25.
At step five, the administrative law judge based on a
residual functional capacity of a limited range of unskilled,
light work as described above and the testimony of a vocational
expert found that Gardner had the ability to perform unskilled,
light work as a usher, counter clerk and flagger, and that there
were a significant number of such jobs in the local and national
economies. Tr. 26-27.
The administrative record in this case is 302 pages in
length and we have thoroughly reviewed that record.
The
administrative law judge did an adequate job of reviewing
27
Gardner’s vocational history and medical records in her decision.
Tr. 19-27.
Furthermore, the brief submitted by the Commissioner
sufficiently reviews the medical and vocational evidence in this
case. Doc. 12, Brief of Defendant.
Gardner argues that the
administrative law judge erred by (1) failing to identify all of
Gardner’s medically determinable impairments, (2) failing to
address all the medical evidence and opinions contained in the
record, (3) failing to consider Gardner’s long work history in
determining his credibility, and (4) finding that Gardner’s
receipt of unemployment compensation benefits indicates an ability
to work.
We find no merit in Gardner’s arguments.
The Social Security regulations require that an
applicant for disability insurance 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.”
404.1512(c).
20 C.F.R. §
No treating or examining physician has indicated
that Gardner suffers from physical functional limitations that
would preclude him from engaging in the limited range of light
work set by the administrative law judge in hers decision for the
28
requisite statutory 12 month period.19
No physician indicated
that Gardner was incapable of working at that modest level on a
full-time basis.
Moreover, we cannot conclude based on a review
of the bare medical records that Gardner is unable to engage in
the limited range of work set by the administrative law judge (in
fact it is not our scope of review to do so in so far as we are
limited to a substantial evidence review).
The administrative law judge relied on the opinions of
Dr. Nielsen, a state agency physician who examined Gardner, and
the opinion of Dr. Ryczak who reviewed Gardner’s medical records.
The administrative law judge’s reliance on those opinions 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[.]”).
Although the ALJ did not address some items of evidence,
we are satisfied that the ALJ appropriately addressed Gardner’s
medical conditions and treatment for those conditions in her
19. 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).
29
decision.
The Court of Appeals for this circuit has held that an
ALJ is not required to discuss each and every item of evidence.
See Fargnoli v. Massanari, 247 F.3d 34 (3d Cir. 2001).
Gardner
argues that the administrative law judge’s step
two analysis is defective because she did not identify and find
certain conditions as medically determinable impairments.
Specifically, Gardner points to conditions identified in the MRI
of Gardner’s cervical spine, e.g., cervical radiculopathy.
The
problem with this argument is that the ALJ considered in her
decisions the EMG that identified chronic radiculopathy as well as
accounted for that condition and Gardner’s left upper extremity
weakness in the residual functional capacity assessment.
Moreover, when the ALJ asked Gardner at the administrative hearing
what conditions he suffered from he primarily focused on left
upper extremity weakness. See Rutherford v. Barnhart, 399 F.3d 546
(3d Cir. 2005)(determining that remand was not appropriate where
the claimant did not raise an impairment before the ALJ even when
asked by the ALJ directly to describe her impairments).
As for Gardner’s claim that the ALJ did not address his
work history, the transcript of the administrative hearing reveals
that the ALJ was well-aware of Gardner’s lengthy work history. Tr.
60-62.
Moreover, the ALJ addressed Gardner’s past relevant work
in her decision. Tr. 25.
In this case Gardner did not quit his
30
job because of a medical condition, he was terminated by his
employer and after being so terminated he initiated a job search
and an application for unemployment compensation benefits which
draws into question his credibility.
The administrative law judge stated that Gardner’s
statements concerning the intensity, persistence and limiting
effects of his 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
accept Gardner’s claims regarding his physical 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
31
heard Gardner testify, the administrative law judge is the one
best suited to assess the credibility of Gardner.
Finally, we addressed Gardner’s argument regarding the
ALJ’s consideration of Gardner’s receipt of unemployment
compensation in footnote 18 and will comment no further on that
argument.
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/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: March 25, 2013
32
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