Bilger v. Astrue

Filing 9

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal of the Commissioners decision is denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 12/4/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONNA L. BILGER,

:
:CIVIL ACTION NO. 3:12-CV-1109
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
MICHAEL J. ASTRUE, COMISSIONER
:
OF SOCIAL SECURITY,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”), 42 U.S.C. § 401–433.

(Doc. 1.)

The Administrative Law Judge (“ALJ”) who originally evaluated the
claim found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work with certain limitations and denied
Plaintiff’s claim for benefits.

(R. 13, 17.)

With this action,

Plaintiff argues that the ALJ’s determination is error for two
reasons: 1) the RFC is not based on substantial evidence (Doc. 6 at
7); and 2) the Vocational Expert’s testimony did not constitute
substantial evidence because the ALJ’s hypothetical did not
adequately portray the full extent of Plaintiff’s limitations (id.
at 14).

For the reasons discussed below, we conclude Plaintiff’s

claimed errors are without merit and, therefore, we deny her appeal
of the Commissioner’s decision.
I. Background
Plaintiff protectively filed for DIB on June 3, 2008.

(R.

122.)

Plaintiff’s date of birth is May 2, 1953.

married with no minor children.

(Id.)

(R. 126.)

She is

She claimed disability

beginning on August 1, 2006 (id.), alleging an inability to work
based on arthritis, diabetes and nerve damage (R. 138).

She added

that she could not stand and could not sit for long, she was in
constant pain and was unable to clean her house or go up and down
stairs.

(Id.)

Plaintiff had past work as a coffee hostess and box

packer.

(R. 139.)

She has a ninth grade education.

Plaintiff’s “date last insured” is September 30, 2006.

(R. 29.)
(R. 10.)

The Social Security Administration denied Plaintiff’s
application by decision dated August 1, 2008.

(R. 69-73.)

On

August 6, 2009, Plaintiff filed a timely Request for Hearing before
an Administrative Law Judge.

(R. 74.)

On May 11, 2010, ALJ Donna

M. Graffius held a hearing at which Plaintiff and a vocational
expert (“VE”) testified.

(R. 22-54.)

In response to the question of whether she was able to work as
a box packer or coffee hostess in 2007 after her surgeon released
her, Plaintiff responded that she could not because she “couldn’t
stand that long.”

(R. 37.)

Plaintiff also stated she could not

have performed any kind of work activity at that time because she
never knew from day to day how she was going to feel.

(R. 37-38.)

She reported that she could do laundry and dishes on a good day but
otherwise needed help with housework.

(R. 38.)

Plaintiff stated

that she could do her own laundry and grocery, and visit with

2

friends and relatives back in August of 2007. (R. 38-39.)

When

asked by her attorney about the period of time when her doctor had
released her post surgery and whether she had increased her
activities, Plaintiff responded that she felt better for a period
of time, she did not run the sweeper, and her standing and walking
remained limited.

(R. 40.)

She confirmed that she returned to her

doctor due to increasing pain.

(R. 41.)

Plaintiff added that in

the summer of 2007 she could be on her feet for ten to fifteen
minutes and then pain would shoot down her left leg and her sleep
was interrupted due to pain.

(R. 41-42.)

Plaintiff also testified

that during the summer 2007 time period her sugar level was
elevated due to diabetes, that she was tired all the time, was
nauseated, had headaches, and experienced a loss of feeling in her
feet and numbness in her fingertips.

(R. 45-46.)

Following Plaintiff’s testimony, the ALJ asked the VE
questions assuming a hypothetical claimant with the same age,
education and work experience as Plaintiff who would be limited to
light work activity with additional limitations.

(R. 49.)

The VE

stated there were light duty jobs in the region such a claimant
could perform, jobs which could be performed sitting or standing
depending on how the claimant felt.

(R. 49-50.)

Finally, the ALJ asked what would be typically expected of
employees in terms of absences, work breaks and time on task
expectations.

(R. 51.)

The VE testified there would be five

3

eight-hour days with ten minute rest periods in the morning and
afternoon, a lunch period of thirty to sixty minutes, and an
employer would tolerate five unexcused absences per year apart from
medical leave and vacation time.

(R. 51.)

The VE added that

exceeding the customary limits would eliminate the jobs he had
cited for the hypothetical claimant.

(R. 51.)

Plaintiff’s attorney followed up with a question regarding
whether the jobs he had identified were classified as light based
on the amount of weight lifted on the job.
responded in the affirmative.

(R. 51.)

The VE

(R. 51-52.)

Plaintiff’s attorney then noted that, although there was a
release from the doctor in the middle of the time period, shortly
after the release Plaintiff again experienced back pain which
eventually led to a second surgery–-a situation indicating a
continuation of problems from the date last insured.

(R. 52.)

By decision of May 19, 2010, the ALJ found that Plaintiff was
not disabled within the meaning of the Social Security Act.
17.)

(R.

He made the following findings of fact and conclusions of

law:
1.

The claimant last met the insured status
requirements of the Social Security Act
on September 30, 2006.

2.

The claimant did not engage in
substantial gainful activity during the
period from her alleged onset date of
August 1, 2006 through her date last
insured of September 30, 2006 (20 CFR
404.1571 et seq.).
4

3.

Through the date last insured, the
claimant had the following severe
impairments: lumbar stenosis at L4-5,
status post laminectomies and bilateral
foraminotomies at L4-5, status post
right shoulder arthroscopy with
subacromial decompression, and diabetes
mellitus (20 CFR 404.1520(c)).

4.

Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).

5.

After careful consideration of the
entire record, the undersigned finds
that, through the date last insured,
September 30, 2006, the claimant had the
residual functional capacity to perform
light work as defined in 20 CFR
404.1567(b) except she was limited to
occasional walking and standing, and
postural maneuvers, such as stooping,
kneeling, crouching, crawling, and
climbing ramps and stairs. Further, the
claimant needed the option to sit and
stand during the work day, every 15-20
minutes. Finally, the claimant had to
avoid overhead reaching with the right
upper extremity.

6.

Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on May 2, 1953 and
was 53 years old, which is defined as an
individual closely approaching advanced
age, on the date last insured (20 CFR
404-1563).

8.

The claimant has a limited education and
is able to communicate in English (20
CFR 404.1564).

5

9.

Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 404.1568).

10.

Through the dated last insured,
considering the claimant’s age,
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
and 404.1569(a)).

11.

The claimant was not under a disability,
as defined in the Social Security Act,
at any time from August 1, 2006, the
alleged onset date, through September
30, 2006, the date last insured (20 CFR
404.1520(g)).

(R. 12-17.)
In explanation of his residual functional capacity
determination, the ALJ stated
[t]he medical evidence shows the
claimant has a history of lumbar stenosis at
L4-5, status post laminectomies and bilateral
foraminotomies at L4-5, status post right
shoulder arthroscopy with subacromial
decompression, and diabetes mellitus.
However, in February, 2006, it was reported
that motor strength in the lower extremities
was 5/5, there was no subjective loss to
light touch, and straight leg raising was
negative. Also, in February, 2006, it was
noted that the claimant underwent pain
management and there was no evidence of motor
or sensory deficits and the claimant was
ambulating well. Further, the claimant
underwent an MRI of the right shoulder and it
was noted that although there was a partial
tear and joint effusion, there was only small
joint effusion noted, marrow signal was
homogeneous, the biceps tendon was properly
seated within the groove, and the glenoid
6

labra appeared to be intact (Exhibit 2F).
The claimant underwent an EMG examination in
April, 2006, and Dr. Thomas O. Pearson, M.D.,
reported that although the claimant had S1
radiculopathy bilaterally on the left, it was
only mild, and the right side was normal
(Exhibit 1F). By May 2006, it was noted that
the claimant had normal neurovascular status
in the extremities following right shoulder
impingement surgery (Exhibit 3F). By July,
2006, it was reported that the claimant was
doing excellent, with normal range of motion,
and no pain or discomfort (Exhibit 4F). In
October, 2006, it was noted that the claimant
had no gross abnormalities in the extremities
and straight leg raising was negative
bilaterally following a lumbar laminectomy,
foraminotomies, and decompression (Exhibits
5F, 6F). Later, in November, 2006, it was
reported that the claimant was doing
extremely well, with no pain or problems down
her legs, and only minimal discomfort in her
back, which continued to be reported several
months afterward (Exhibit 7F). Finally, it
is noted that the claimant has not required
aggressive medical treatment, frequent
hospital confinement/emergency room care or
further surgical intervention for her
conditions notwithstanding her allegations of
totally debilitating symptomatology.
The Administrative Law Judge notes that
Dr. Marianne Shaw, M.D. reported in April,
2008, that claimant suffered from diabetic
neuropathy, with additional studies to follow
(Exhibit 9F). However, it is noted the
medical evidence prior to September 30, 2006,
the claimant’s date late insured, does not
contain objective signs, symptoms, or
laboratory finding to establish the presence
of this impairment prior to expiration of the
claimant’s date last insured and period of
coverage for this particular claim.
The Administrative Law Judge has also
considered the claimant’s subjective
complaints in accordance with Regulations
404.1529 and 416.929, and Social Security
7

Ruling 96-7p. In considering the claimant’s
symptoms, the undersigned must follow a twostep process in which it must first be
determined whether there is an underlying
medically determinable physical or mental
impairment(s)–-i.e., an impairment(s) that
can be shown by medically acceptable clinical
and laboratory diagnostic techniques–-that
could reasonably be expected to produce the
claimant’s pain or symptoms.
Second, once an underlying physical or
mental impairment(s) that could be expected
to produce the claimant’s pain or other
symptoms has been shown, the undersigned must
evaluate the intensity, persistence, and
limiting effects of the claimant’s symptoms
to determine the extent to which they limit
the claimant’s ability to do basic work
activities. For this purpose, whenever
statements about the intensity, persistence,
or functionally limiting effects of pain or
other symptoms are not substantiated by
objective medical evidence, the undersigned
must make a finding on the credibility of the
statements based on a consideration of the
entire case record. After careful
consideration of the evidence, the
undersigned finds that the claimant’s
medically determinable impairments could
reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are not
consistent with the above residual functional
capacity assessment.
The claimant reported she experiences
arthritis, diabetes, and nerve damage. In
addition, the claimant reported that she is
unable to work because she is unable to sit
or stand very long. (Exhibit 1E).
However, the claimant’s self-reported
activities of daily living are inconsistent
with an individual experiencing totally
debilitating symptomatology. The claimant
8

reported she is unable to care for all of her
personal needs without difficulty, prepare
meals, do some cleaning, do laundry, drive,
shop, pay bills, count change, handle a
savings accout, and use a checkboook/money
orders (Exhibit 4E). The Administrative Law
Judge also notes that there is no evidence of
any significant disuse muscle atrophy of the
extremities on physical examination, which
suggests the claimant moves about on a fairly
regular basis notwithstanding her allegations
of totally debilitating symptomatology.
The clinical and objective findings are
also inconsistent with an individual
experiencing totally debilitating
symptomatology. The record is devoid of any
evidence showing a significant degree of
muscle atrophy, muscle spasm, a motor or
sensory loss, reflex abnormality, reduced
range of motion of the spine or extremities,
or a gait disturbance. Moreover, there is no
evidence of disc herniation, spinal stenosis,
nerve root impingement, arachnoiditis or
other significant degenerative/arthritic
abnormality of the spine or extremities to
substantiate the claimant’s allegations of
chronic pain.
In terms of treatment, the claimant
reported she takes the medications as set
forth in Exhibit 8E in the dosages indicated.
However, there is no evidence that the
claimant experiences significant side effects
from her medications or that her medications
have been frequently changed or the dosages
altered due to side effects and/or
ineffectiveness. Likewise, there is no
evidence the claimant has been prescribed
other pain/treatment modalities such as a
Tens unit, back brace, bed board, cervical
collar, or an assistive device for
ambulation; and no medical source of record
has referred the claimant to a pain
management clinic notwithstanding her
allegations of chronic pain. Finally, it is
noted that the claimant has not required
aggressive medical treatment, frequent
9

hospital confinement/emergency room care or
surgical intervention for her condition
notwithstanding her allegations of totally
debilitating symptomatology.
(R. 13-15.)
As noted above, the ALJ ultimately decided that Plaintiff had
the residual functional capacity to perform light work with
limitations (R. 13) and that jobs exist in the national economy
that Plaintiff could have performed (R. 16).

Thus, he determined

that Plaintiff had not been under a disability as defined in the
Social Security Act from August 1, 2006, through September 30,
2006, the date last insured.

(R. 17.)

On or about July 14, 2010, Plaintiff filed a timely request
with the Social Security Administrations Appeals Council for
review.

(R. 5.)

In a Notice dated December 15, 2011, the Appeals

Council denied Plaintiff’s Request for Review (R. 1), making the
ALJ’s decision the decision of the Commissioner.
Plaintiff filed this action on June 11, 2012.

(Doc. 1.)

She

filed her brief in support of the appeal on September 20, 2012, in
which she asserts the bases for relief noted above: 1) the RFC is
not based on substantial evidence (Doc. 6 at 7); and 2) the
Vocational Expert’s testimony did not constitute substantial
evidence because the ALJ’s hypothetical did not adequately portray
the full extent of Plaintiff’s limitations (id. at 14).
filed his opposition brief on September 5, 2012.

Defendant

(Doc. 7.)

With

the filing of Plaintiff’s reply brief (Doc. 8) on November 2, 2012,
10

this matter became ripe for disposition.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.

1

“Disability” is defined as the “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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
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.
42 U.S.C. § 423(d)(2)(A).
11

521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R. 16-17.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

A reviewing court is

“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
mere scintilla.

Plummer v. Apfel, 186 F.3d

Substantial evidence means “more than a

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Richardson

v. Perales, 402 U.S. 389, 401 (1971); Plummer, 186 F.3d at 427
(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
12

also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).

Therefore, we will not set aside the Commissioner’s final

decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.

Hartranft, 181

F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

An ALJ’s decision can

only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.

Matthews

v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).

See Dobrowolsky v.

These proceedings are

not strictly adversarial, but rather the Social Security
13

Administration provides an applicant with assistance to prove his
claim.

Id.

“These proceedings are extremely important to the

claimants, who are in real need in most instances and who claim not
charity but that which is rightfully due as provided for in Chapter
7, Subchapter II, of the Social Security Act.”

Hess v. Secretary

of Health, Education and Welfare, 497 F. 2d 837, 840 (3d Cir.
1974).

As such, the agency must take extra care in developing an

administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.

Further, the court in Dobrowolsky

noted “the cases demonstrate that, consistent with the legislative
purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it be strictly construed.”

Id.

Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.

If he has not done so

and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”

Dobrowolsky, 606 F.2d at 407.

In Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), the Circuit
Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected.

“Since it is apparent that the ALJ cannot
14

reject evidence for no reason or the wrong reason, an explanation
from the ALJ of the reason why probative evidence has been rejected
is required so that a reviewing court can determine whether the
reasons for rejection were improper.”

Id. at 706-07.

However, the

ALJ need not undertake an exhaustive discussion of all the
evidence.
2000).

See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

“There is no requirement that the ALJ discuss in its

opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).

Hur v.

Only where the ALJ

rejects conflicting probative evidence must he fully explain his
reasons for doing so.

See, e.g., Walker v. Comm’r of Soc. Sec., 61

F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d110, 114 (3d Cir. 1983)).

Further, the ALJ does not need to

use particular language or adhere to a particular format in
conducting his analysis.
Cir. 2004).

Jones v. Barnhart, 364 F.3d 501, 505 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
B.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the ALJ erred because his

RFC determination is not based on substantial evidence (Doc. 6 at
7) and he did not pose an adequate hypothetical to the vocational
15

expert (id. at 14).

We conclude that neither alleged error

provides a basis to grant Plaintiff’s appeal of the Commissioner’s
decision.
1.

Residual Functional Capacity Determination
Plaintiff asserts the ALJ’s residual functional capacity

determination that she was able to do light work with limitations
was not based on substantial evidence for three reasons: 1) the
evidence shows she was physically limited to sedentary work since
her alleged onset date of August 1, 2006 (Doc. 6 at 7); 2)
Plaintiff’s limited ability to perform light work places her
exertional capacity between two rules that direct opposite
conclusions, a situation which justifies a finding of “disabled”
(id. at 9); and 3) the ALJ’s determination that Plaintiff was
capable of performing some degree of light work is not based on
substantial evidence (id. at 12).
In support of her assertion that she was limited to sedentary
work during the relevant time period, Plaintiff points to the
spinal surgery which she underwent on October 16, 2006–-sixteen
days after her date last insured–-as indicative that she was
disabled by her pain and related symptoms resulting from
degenerative disc disease as of September 30, 2006 “and at the very
least limited to sedentary work.”

(Doc. 6 at 8.)

Defendant

responds that Plaintiff cites no medical opinion to support this
conclusion and that no such opinion exists in the record.

16

(Doc. 7

at 6.)

Plaintiff does not point to any medical evidence with her

reply, relying rather on her testimony that her lifting capacity
with her past relevant work was limited--in the case of the box
packer position she was limited to lifting ten pounds.

(Doc. 8 at

2 (citing R. 32, 48-49).)
We conclude Plaintiff has failed to show that the ALJ’s
determination that she was capable of light work with limitations
is not based on substantial evidence.

First, we note that

Plaintiff states she “was doing light work in the past” (Doc. 8 at
2) although the ALJ found her past relevant work to be of medium
exertion (R. 16).

Plaintiff’s only testimony regarding the ten

pound weight limit (which would limit her to sedentary work (see R.
49)) was in response to the ALJ questioning her about the heaviest
weight she lifted in the box packer position.
responded that “[i]t varied.
plastic.

(R. 32.)

She

The parts that I bagged was [sic]

I’m going to say maybe ten pounds.”

(R. 33.)

As Defendant notes in citing Burns v. Barnhart, 312 F.3d 113,
129-30 (3d Cir. 2002), “an allegation of reduced functional
capacity, without medical evidence or diagnostic opinion supporting
the allegation, [does] not trigger a duty on the part of the ALJ to
incorporate the limitation in the hypothetical question to the
vocational expert.”

(Doc. 7 at 6.)

Plaintiff’s equivocal response

to the ALJ’s question does not undermine the evidence of record
indicating Plaintiff did well post-surgically.

17

As noted by the

ALJ, “in November, 2006, it was reported that the claimant was
doing extremely well, with no pain or problems down her legs, and
only minimal discomfort in her back, which continued to be reported
several months afterward.”

(R. 14 (citing Exhibit 7F).)

The cited

exhibit includes correspondence from her surgeon, Barry B. Moore,
M.D., to another physician dated August 9, 2007, in which Dr. Moore
states “she has done extremely well only ten months after her
surgery.

Therefore, I will dismiss her from our practice.”

(R.

228.)
This evidence undermines Plaintiff’s report of her postsurgical condition.

For example Plaintiff’s statement that in the

summer of 2007 she could be on her feet for ten to fifteen minutes
and then pain would shoot down her left leg and her sleep was
interrupted due to pain (R. 41-42) is not consistent with the
medical reports from the same time period.
Given the evidence of record and lack of support for
Plaintiff’s position, we conclude Plaintiff’s weight restriction
argument fails to show the ALJ’s RFC determination was not based on
substantial evidence.

This conclusion applies equally to

Plaintiff’s similar argument that the ALJ’s determination that she
was capable of performing some degree of light work is not based on
substantial evidence.
Plaintiff also argues that the ALJ’s residual functional
capacity determination acknowledges that her ability to perform

18

light work is significantly reduced, therefore placing her
exertional capacity between two rules that direct opposite
conclusions which justify a finding of “disabled.”

(Doc. 6 at 9.)

Defendant responds that Plaintiff misconstrues the Social Security
Ruling on which she relies, SSR 83-12, which indicates a vocational
expert should be consulted when an individual must alternate
between sitting and standing to determine the effect of the
sit/stand option on the occupational base.
SSR 83-12 at 3-4).)

(Doc. 7 at 7-10 (citing

Because Plaintiff does not reply to the

argument and because we conclude the ALJ proceeded in accordance
with SSR 83-12, we will not discuss this issue further.
2.

Vocational Expert Hypothetical
Finally, Plaintiff contends that the VE’s testimony did not

constitute substantial evidence because the ALJ’s hypothetical did
not adequately portray her limitations, particularly her lifting
limitation.

(Doc. 6 at 14.)

Defendant responds that the ALJ’s

question fully accommodated all of Plaintiff’s credibly established
limitations as required by Rutherford v. Barnhart, 399 F.3d 546,
554 (3d Cir. 2005).

(Doc. 7 at 11.)

Plaintiff replies that the

hypothetical incorrectly assumed she was capable of lifting up to
twenty pounds with frequent lifting of ten pounds.

(Doc. 8 at 3.)

As set out above, Burns establishes that medical evidence or
diagnostic opinion is required to support an allegation of reduced
19

functional capacity which would trigger a duty on the part of the
ALJ to include the limitation in the hypothetical posed to the VE.
312 F.3d 113, 129-30.

Here Plaintiff provides neither.

Therefore,

the ALJ was under no obligation to include the suggested limitation
in his hypothetical to the VE, and Plaintiff’s argument fails.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal of the
Commissioner’s decision is denied.

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: December 4, 2013

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