Robbins v. Astrue

Filing 17

MEMORANDUM (Order to follow as separate docket entry)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.Signed by Honorable Richard P. Conaboy on 2/27/14. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ZEDD B. ROBBINS,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 3:12-CV-01999
(Judge Conaboy)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Zedd B. Robbins’s claim for supplemental
security income benefits.
Supplemental security income (SSI) 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.
Robbins protectively filed1 his application for
supplemental security income benefits on January 19, 2007. Tr. 86,
134-140, 149 and 166.2

The application was initially denied by

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 the Answer on December
(continued...)

the Bureau of Disability Determination3 on July 2, 2007. Tr. 100103. On August 1, 2007, Robbins requested a hearing before an
administrative law judge. Tr. 86 and 105.

After over 15 months

had passed, a hearing was held before an administrative law judge
on November 20, 2008. Tr. 32-74.

On February 19, 2009, the

administrative law judge issued a decision denying Robbins’s
application. Tr. 86-93.
request for review

On March 11, 2009, Robbins filed a

with the Appeals Council of the Social

Security Administration’s

Office of Disability Adjudication and

Review, and on April 16, 2009, the Appeals Council vacated the
decision of the administrative law judge and remanded the case to
him to hold a new hearing and address, inter alia, the issue of
Robbins’s maximum residual functional capacity. Tr. 117-120.

A

second administrative hearing was held on February 15, 2011. Tr.
387-424 (Doc. 15). Robins was represented by counsel at the
hearing. Id.

On April 5, 2011, the administrative law judge

issued a decision denying Robbins’s application. Tr. 16-28.

As

will be explained in more detail infra, after considering the
evidence submitted at the first administrative hearing including
the testimony of Juanita Carl, Robbins’s girlfriend, the medical
2. (...continued)
6, 2012, as well as a supplemental record consisting of an
administrative hearing transcript filed on April 17, 2013. Docs.
6 and 15.
3. The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for supplemental
security income benefits on behalf of the Social Security
Administration. Tr. 100.
2

records, and the testimony of Robbins and a vocational expert at
the second hearing, the administrative law judge found that
Robbins could perform a limited range of light work.4 Id.

4. The terms sedentary, light, medium, heavy and very 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.
(continued...)
3

On May 18, 2011, Robbins filed a request for review
with the Appeals Council and after over 15 months had passed the
Appeals Council on August 30, 2012, concluded that there was no
basis upon which to grant Robbins’s request for review. Tr. 1-5
and 10-12.

Thus, the administrative law judge's decision stood as

the final decision of the Commissioner.
Robbins then filed a complaint in this court on October
4, 2012.

Supporting and opposing briefs were submitted and the

appeal5 became ripe for disposition on May 13, 2013, when Robbins
elected not to file a reply brief.6
Robins was born in the United States on September 13,
1961, and at all times relevant to this matter was considered a

4.

(...continued)
(e) Very heavy work. Very heavy work involves lifting
objects weighing more than 100 pounds at a time with
frequent lifting or carrying of objects weighing 50
pounds or more. If someone can do very heavy work, we
determine that he or she can also do heavy, medium,
light and sedentary work.

2 C.F.R. § 416.967.
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.
6. Robbins had also filed an application for disability
insurance benefits on January 19, 2007. However, at the first
administrative hearing Robbins withdrew that application. The
present appeal only relates to the Commissioner’s denial of
Robbins’s application for supplemental security income benefits.
4

“younger individual”7 whose age would not seriously impact his
ability to adjust to other work. 20 C.F.R. § 416.963©. Tr. 127 and
134.
Robbins stated in documents filed with the Social
Security Administration that he obtained a General Equivalency
Diploma (GED) in 1994; and he can read, write, speak and
understand the English language and perform basic mathematical
functions such as counting change, handling a savings account and
using a checkbook and money orders. Tr. 177, 182 and 188.

Robbins

reported that while attending school he was in regular education
classes and that after obtaining a GED, he did complete training
in wildlife and forestry conservation in 1995. Tr. 182-183.
Robbins has a limited work and earnings history. Tr. Tr.
141. His employment history consists primarily of work as an
assistant butcher and cashier. Tr. 64,179 and 416. A vocational
expert identified the cashier position as Robbins’s past relevant
employment8 and described it as unskilled, light work. Tr. 416.

7. 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). At
the time of the second administrative hearing and the decision of
the administrative law judge, Robbins was 49 years old. Tr. 416.
8. Past relevant employment in the present case means work
performed by Robbins during the 15 years prior to the date his
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565. To be considered past relevant
work, the work must also amount to substantial gainful activity.
Pursuant to Federal Regulations a person’s earnings have to rise
(continued...)
5

The records of the Social Security Administration reveal that
Robbins had earnings in the years 1978 through 1980, 1984 through
1995, 1997, and 2001 through 2006. Tr. 141.

Robbins’s annual

earnings range from a low of $103.23 in 1997 to a high of
$13,425.01 in 2005. Id.

Robbins’s total earnings during those 22

years were $94,163.75. Id.

Robbins testified that he last worked

full-time in October, 2006 as a cashier at a novelty and gift
store. Tr. 41-43.

As a cashier he was responsible for checking

people out at the register, filling racks after sales, and
sweeping and mopping the floor. Id.

In a document filed with the

Social Security Administration, Robbins stated that he stopped
working full-time on October 20, 2006, because of pain. Tr. 178.
Robbins reported he lived alone and spent most days on
his recliner reading, watching TV and listening to the radio. Tr.
46 and 52.

Although Robbins’s girlfriend cooked and cleaned for

him, Robbins had no problems with personal care, such as dressing
and feeding himself, and he was also able to prepare simple meals,
drive and occasionally shop with his girlfriend. Tr. 41, 55, 60
and 186.
In contrast to the fact that Robbins worked full-time up
until late October, 2006, in his application for supplemental
security income and in a document entitled “Disability Report -

8. (...continued)
to a certain level to be considered substantial gainful activity.
6

Adult” Robbins claimed that he became disabled and unable to work
on September 15, 1994. Tr. 134 and 178. Also, in other documents,
primarily medical records, and the transcript of the first
administrative hearing, it is revealed that he stated that he
injured his back and neck in 2000 in a slip-and-fall accident. Tr.
38 and 299.

Robbins claimed that his disabling impairments were

depression, chronic back pain, degenerative disc disease, muscle
spasms, and a right arm injury. Tr. 178.
The alleged disability onset date of September 15, 1994,
has no impact on Robbins’s application for supplemental security
income benefits because supplemental security income is a needs
based program and benefits may not be paid for “any period that
precedes the first month following the date on which an
application is filed or, if later, the first month following the
date all conditions for eligibility are met.”
416.501.

See C.F.R. §

As stated above Robbins’s SSI application was filed on

January 19, 2007. Consequently, Robbins is not eligible for SSI
benefits for any period prior to February 1, 2007.
For the reasons set forth below we will affirm the
decision of the Commissioner denying Robbins’s application for
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."
474, 488 (1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S.
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 supplemental security income claims.
416.920; Poulos, 474 F.3d at 91-92.

See 20 C.F.R. §

This process requires the

Commissioner to consider, in sequence, whether a claimant (1) is
engaging in substantial gainful activity,9 (2) has an impairment

9. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further. Substantial gainful activity is work that
“involves doing significant and productive physical or mental
(continued...)
10

that is severe or a combination of impairments that is severe,10
(3) has an impairment or combination of impairments that meets or
equals the requirements of a listed impairment,11 (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

9. (...continued)
duties” and “is done (or intended) for pay or profit.” 20 C.F.R.
§ 416.910.
10.
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. § 416.920(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.
§ 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.
§§ 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. § 416.945(b). An individual’s basic mental or
non-exertional abilities include the ability to understand, carry
out and remember simple instructions, and respond appropriately
to supervision, coworkers and work pressures. 20 C.F.R. §
416.945(c).
11. 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.
11

judge must determine the claimant’s residual functional capacity.
Id.12
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.
§ 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).”).
MEDICAL RECORDS
Before we address the administrative law judge’s
decision and the arguments of counsel, we will review some of
Robbins’s

medical records.
The medical records do reveal that Robbins suffered from

degenerative disc disease of the lumbar spine and received
extensive care from chiropractors. Tr. 239-251, 285-286, 288-296,
and 311-31813.

From March of 2003, up until February 7, 2011,

12. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
13. The majority of the chiropractic records are handwritten and
only partially legible but reveal that Robbins received
chiropractic adjustments to the spine, ultrasound therapy and ice
(continued...)
12

Robbins’s

chiropractor was Robert A. Rodman, D.C.

Tr. 238-256

and 287-297. From February 9, 2011 to March 2, 2011, Robbins
received treatment from Ronald S. Hoch, D.C. Tr. 310-319.

A

chiropractor is not an acceptable medical source under the
regulations of the Social Security Administration for providing a
diagnostic assessment. 20 C.F.R. § 404.1513(d). However, a
chiropractor can provide an assessment of a patient’s
musculoskeletal functional capabilities. Id.

In this case other

than on two occasions the treating chiropractic physicians only
provided conclusory opinions of disability and did not provide
detailed assessments of Robbins’s work-related functional
abilities, such as his ability during an 8-hour workday to walk,
sit, stand, push, pull, lift and carry.

On October 8, 2004, the

chiropractor restricted Robbins to lifting, pushing or pulling
items that weighed less than 10 pounds. Tr. 253.

However, as

stated earlier in this memorandum Robbins was working as a cashier
at the light exertional level which is inconsistent with the
chiropractor’s assessment. Tr. 253.

Furthermore, in that

statement limiting Robbins to lifting, pushing and pulling items
weighing less than 10 pounds, the chiropractor did not specify
that the limitation had lasted 12 continuous months or was

13. (...continued)
treatments. Tr. 256. He also was provided with herbal muscle
relaxers. Id.
13

expected to so last.14

After Robbins ceased working, the same

chiropractor, Dr. Rodman, on November 15, 2006,

again limited

Robbins to lifting, pushing or pulling items that weighed less
than 10 pounds but did not specify the duration of the
restriction. Tr. 254.
There is only one report of an MRI of Robbins’s lumbar
spine in the record. Tr. 251. That MRI was performed on November
11, 2004, again at a time when Robbins reportedly was working
full-time as a cashier, and it reveals “[m]ild degenerative disc
disease at L4-L5 and to a lesser degree L5-S1,” “mild bulge of
annulus at L4-L5" and “[n]o disc herniation or spinal stenosis.”15

14. 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).
15. The spine (vertebral column) from the head to the tailbone
is divided into five regions: the cervical (consisting of 7
vertebrae, C1-C7 in descending order), the thoracic (12
vertebrae, T1-T12 in descending order), the lumbar (5 vertebrae,
L1-L5 in descending order), the sacrum (5 fused vertebrae, S1-S5
in descending order) and the coccyx (4 fused vertebrae). Other
than the first two vertebrae of the cervical spine (C1 and C2),
the vertebrae of the cervical, thoracic and lumbar regions are
similarly shaped.
A vertebra consists of several elements, including the
vertebral body (which is the anterior portion of the vertebra),
pedicles, laminae and the transverse processes. The vertebral
body is the largest part of the vertebra and is somewhat oval
shaped. The endplates are the top and bottom portions of a
vertebral body that come in direct contact with the
intervertebral discs.
The intervertebral discs (made of cartilage) are the
cushions (shock absorbers) between the bony vertebral bodies that
(continued...)
14

Id.

A review of the administrative record did not reveal a report

an MRI of Robbins’s cervical spine.
On October 18, 2006, Robbins had an appointment with
Chris O’Neil, D.O., regarding alleged back and neck pain. Tr. 237.
The results of a physical examination performed by Dr. O’Neil are
notable in that Robbins although having neck pain with palpation
he had good range of motion and although having low lumbar pain

15. (...continued)
make up the spinal column. Each disc is made of a tough outer
layer and an inner core composed of a gelatin-like substance. The
outer layer of an intervertebral disc is called the annulus
fibrosus and the inner core the nucleus pulposus. Jill PG Urban
and Sally Roberts, Degeneration of the intervertebral disc,
PublicMedCentral,http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1650
40/(Last accessed February 18, 2014); see also Herniated
Intervertebral Disc Disease, Columbia University Medical Center,
Department of Neurology, http://www.columbianeurosurgery.org/
conditions/herniated-intervertebral-disc-disease/ (Last accessed
February 18, 2014).
Degenerative disc disease is the wear and tear and breakdown
of the intervertebral discs as a person grows older. It is a
process that can result from the dehydration of the discs as well
as an injury to the spine. The breakdown of the intervertebral
discs can result in discs bulging, protruding or herniating as
well as the inner gelatin-like core of the disc extruding outside
the annulus fibrosus. These conditions sometimes obstruct the
openings (foramen) along the spine through which nerve roots
exit. This condition is known as neural foraminal stenosis. They
can also result in a narrowing of the spinal canal or spinal
stenosis. Such bulges, protrusions and herniations if they
contact nerve tissue can cause pain.
Degenerative joint disease (or osteoarthritis) is a
breakdown of the cartilage between joints. In the spine there
are facet joints which are in the back of the spine and act like
hinges. There are two superior (top) and two inferior (bottom)
portions to each facet joint called the superior and inferior
articular processes. These joints are covered with cartilage and
the wear and tear of these joint is known as facet arthropathy
(arthritis). This wear and tear of the facet joints result in
loss of cartilage and can cause pain.
15

with palpation he had a negative straight leg raise test.16 Id.
Dr. O’Neil’s diagnostic assessment was chronic neck pain and
degenerative joint disease and he prescribed the narcotic pain
medication Ultram, the anti-inflammatory agent prednisone and the
muscle relaxant Skelaxin. Tr. 236.

Similar physical examination

findings were made by Dr. O’Neil on December 4, 2006. Tr. 235. Dr.
O’Neil did not give an indication of Robbins’s work-related
functional abilities.
On May 31, 2007, Robbins was examined by Maliyakkal
John, M.D., on behalf of the Bureau of Disability Determination.
Tr. 257-264.

Dr. John after conducting a clinical interview and

physical examination concluded that Robbins suffered from
degenerative disc disease and chronic back pain primarily located
in the neck which was secondary to the fall that he sustained in
2000. Id.

However, even in light of the diagnostic assessment Dr.

John found that Robbins had the functional ability to engage in a
limited range of light work. Tr. 261-262.

Dr. John specifically

found that Robbins could frequently lift and carry 20 pounds and
occasionally lift and carry 25 pounds.17

Tr. 261.

Dr. John

16. The straight leg raise test is done to determine whether a
patient with low back pain has an underlying herniated disc. The
patient, either lying or sitting with the knee straight, has his
or her leg lifted. The test is positive if pain is produced
between 30 and 70 degrees. Niccola V. Hawkinson, DNP, RN, Testing
for Herniated Discs: Straight Leg Raise, SpineUniverse,
http://www.spineuniverse.com/experts/testing-herniated
-discs-straight-leg-raise (Last accessed February 24, 2014).
17.

“Frequently” in the form completed by Dr. John was defined
(continued...)
16

further found that Robbins could sit for up to 6 hours in an 8hour workday; he could occasionally engage in postural activities
such as bending, kneeling and stooping; and he had no other
physical functional limitations such as limitations with respect
to reaching, handling and fingering. Id.
On June 18, 2007, Anthony G. Zale, M.D., reviewed
Robbins’s medical records on behalf of the Bureau of Disability
Determination and concluded that Robbins had the physical ability
to engage in a limited range of light work. Tr. 265-271. Dr. Zale
specifically indicated that Robbins could occasionally lift and/or
carry 10 pounds and occasionally lift and/or carry 20 pounds; he
could stand and/or walk about 6 hours in an 8-hour workday; he
could sit about 6 hours in an 8-hour workday; he was unlimited
with respect to pushing and pulling other than as shown for the
poundage relating to lifting and carrying; he could occasionally
engage in postural activities; and he had no manipulative, visual,
communicative or environmental limitations. Id.
On July 2, 2007, John N. Grutkowski, Ph.D., a
psychologist, reviewed Robbins’s medical records on behalf of the

17. (...continued)
as up to 2/3 of an 8-hour workday. In order to carry something
you have to be either standing or walking. Consequently, although
Dr. John only noted that Robbins could stand and walk more than 2
hours but less than 6 without specifying how many hours, Dr.
John’s assessment of Robbins’s lifting/carrying abilities
indicates that Robbins could stand or walk for up to 2/3 of an 8hour workday or 5.33 hours.
17

Bureau of Disability determination and concluded that Robbins had
no medically determinable psychological impairments. Tr. 272.
On February 17, 2011, Robbins had an appointment with
Nichole L. Hossier, M.D., regarding back pain. Tr. 299-302. This
was also an initial appointment with Dr. Hossier to establish a
patient/physician relationship. Tr. 299. Robbins’s former
physician was Dr. O’Neil and there apparently had been a change
with respect to Robbins’s insurance coverage which required a
change in his primary care physician. Id.

At this appointment

when Dr. Hossier reviewed Robbins’s systems,18 Robbins had no
constitutional, respiratory, cardiovascular, gastrointestinal,
endocrine, neurological, skin, psychiatric, genitourinary or
lymphatic complaints. Tr. 299-300.

Furthermore, the results of a

physical examination performed by Dr. Hossier were essentially
normal, including with respect to Robbins’s back and extremities
he had normal range of motion, a negative straight leg raising
test and normal deep tendon reflexes. Tr. 302.

The only adverse

finding was “[t]ender paralumbar muscles bilaterally.” Tr. 302.
Dr. Hossier’s diagnostic assessment was that Robbins suffered from
backache not otherwise specified and noted that Robbins “should
respond nicely to a light walking program and physical therapy”

18. “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 February 24, 2014).
18

and that “[h]e also needs to lose weight.” Id.

Dr. Hossier did

not specify any work-related functional limitations. Id.
The most recent chiropractic record that was before the
administrative law judge was dated February 24, 2011. Tr. 313.
That record does not set forth any work-related functional
abilities or limitations and merely notes mild to moderate
musculoskeletal conditions, i.e., muscles spasms, tenderness, and
decreased range of motion. Id.
After the administrative law judge issued his decision,
Robbins submitted additional medical evidence to the Appeals
Council. Tr. 320-386. Robbins admits in his brief that this
evidence relates to new physical conditions – cardiac and
endocrine disorders.19 Doc. 12, Plaintiff’s Brief, p. 7.

These

conditions were not raised at either the first or second
administrative hearing and there is no indication that he suffered
from them at or prior to the second administrative hearing.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Robbins had not engaged
in substantial gainful work activity since January 19, 2007, the
application date. Tr. 19.

19. On April 2, 2011, Robbins was admitted to the hospital after
having chest pressure after carrying a 50-pound salt block for 15
to 20 munutes. Tr. 359. He was diagnosed with acute myocardial
infarction not otherwise specified, type 2 diabetes, obesity and
hyperlipdemia. Tr. 357. Robbins was discharged from the hospital
on April 6, 2011. Id.
19

At step two of the sequential evaluation process, the
administrative law judge found that Robbins had the following
severe impairments: “chronic neck and back pain; degenerative disc
disease of the lumbar spine; headaches; and obesity[.]” Id.

The

administrative law judge also found that Robbins was diagnosed
with depression but that it was a non-severe impairment. Tr. 20.
In so finding, the administrative law judge gave Robbins the
benefit of the doubt based on Robbins’s testimony and did not
accept Dr. Grutkoswki’s opinion that Robbins had no medically
determinable psychological impairment. Id. The administrative law
judge further noted that although Robbins’s depression was nonsevere he included appropriate limitations (which we delineate
below) in the residual functional capacity assessment. Id.
At step three of the sequential evaluation process the
administrative law judge found that Robbins’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 20-21.

Robbins has not challenged the administrative law

judge’s step three analysis.
At step four of the sequential evaluation process the
administrative law judge found that Robbins had the residual
functional capacity to perform a limited range of unskilled, light
work. Tr. 21.

The administration found that Robbins could perform

light work that provided Robbins with a sit/stand option at will;
Robbins had to avoid climbing ladders, scaffolds or ropes except
on an emergent basis; Robbins could occasionally use ramps and

20

stairs; he could occasionally crouch and stoop; he could only
kneel and crawl on an emergent basis; he could only bend to the
floor on an occasional basis; he could not perform repetitive
rotation, flexion or extension of the neck; he could perform
lateral reaching frequently with the upper extremities; he could
perform occasional overhead reaching; and he had no limitations
with respect to handling, feeling, fingering, grasping, or gross
or fine motor dexterous coordination activities. Id.
to

With respect

Robbins’s depression, as noted the ALJ limited Robbins to

unskilled work but he also limited Robbins to work that involved a
stable work environment not subject to any more than occasional
changes in the work setting; work of a moderate production pace
not high volume or high intensity pace; and work that was not team
oriented. Id.

In setting Robbins’s residual functional capacity,

the administrative law judge relied on the opinions of the state
agency consultants and the forms completed by them but also as
noted above gave Robbins’s the benefit of the doubt. Id.

The ALJ

also rejected the conclusory disability opinions of Robbins’s
primary chiropractors, Dr. Rodman. Tr. 27.
In setting the residual functional capacity, the
administrative law judge reviewed the medical records and
considered several other items including the opinions of the state
agency consultants and the opinions and records of the treating
chiropractors. Tr. 22-25.

Also, in arriving at the residual

functional capacity the administrative law judge found that

21

Robbins’s statements about his functional limitations as well as
his girlfriend’s statements were not credible to the extent they
were inconsistent with the above residual functional capacity. Tr.
23.
Based on the above residual functional capacity and the
testimony of a vocational expert the ALJ found that Robbins could
perform his past relevant employment as a cashier and did not
proceed to step five of the sequential evaluation process. Tr. 28.
Specifically, the ALJ stated a follows:
The VE testified that there has been no change in the
claimant’s vocational profile since the initial hearing.
Additionally, she testified that the claimant has past
relevant work as a cashier, classified by the
[Dictionary of Occupational Titles] as light exertional
and unskilled work. Further, she testified that given
the above residual functional capacity a hypothetical
individual such as the claimant would be able to
perform the claimant’s past relevant work as a
cashier as it is generally performed as described
in the DOT with 2,000 jobs in the Northeast
Pennsylvania statistical area. [] In comparing the
claimant’s residual functional capacity with the
physical and mental demands of this work, the
undersigned finds that the claimant is able to
perform it as generally performed.
Tr. 28.

Because Robbins could perform his past relevant work as a

cashier, the ALJ concluded that Robbins was not disabled as
defined in the Social Security Act. Id.
The administrative record in this case is 424 pages in
length, primarily consisting of medical and vocational records.
The administrative law judge did an adequate job of reviewing
Robbins’s medical history and vocational background in his
decision. Tr. 16-28. Furthermore, the brief submitted by the
22

Commissioner sufficiently reviews the medical and vocational
evidence in this case. Doc. 16, Brief of Defendant.
Robbins basically argues that the administrative law
judge failed to appropriately consider the medical evidence,
particularly the records and opinions of the treating
chiropractors.

He also argues that the ALJ inappropriately

assessed his credibility.

We have thoroughly reviewed the record

in this case and find no merit in Robbins’s arguments.
The administrative law judge rejected the disability
opinions of Dr. Rodman, the treating chiropractor.

The Court of

Appeals for this circuit has set forth the standard for evaluating
the opinion of a treating physician in Morales v. Apfel, 225 F.3d
310 (3d Cir. 2000).

The Court of Appeals stated in relevant part

as follows:
A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating
physicians’ reports great weight, especially “when
their opinions reflect expert judgment based on a
continuing observation of the patient’s condition
over a prolonged period of time.” . . . The ALJ
must consider the medical findings that support a
treating physician’s opinion that the claimant is
disabled. In choosing to reject the treating
physician’s assessment, an ALJ may not make
“speculative inferences from medical reports” and
may reject “a treating physician’s opinion outright
only on the basis of contradictory medical evidence”
and not due to his or her own credibility judgments,
speculation or lay opinion.
Id. at 317-18 (internal citations omitted). The administrative law
judge is required to evaluate every medical opinion received. 20
C.F.R. § 404.1527(d). In the present case, the administrative law

23

judge in his decision specifically addressed the opinions of the
treating chiropractors, including Dr. Rodman. Tr. 25-27.
The social security regulations specify that the opinion
of a treating physician may be accorded controlling weight only
when it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in the case. 20 C.F.R. §
404.1527(d)(2); SSR 96-2p.

Likewise, an administrative law judge

is not obliged to accept the testimony of a claimant if it is not
supported by the medical evidence.

An impairment, whether

physical or mental, must be established by “medical evidence
consisting of signs, symptoms, and laboratory findings,” and not
just by the claimant’s subjective statements.
404.1508 (2007).

20 C.F.R. §

The administrative law judge appropriately

considered the contrary medical opinions of the state agency
physicians and psychologist and the objective medical evidence and
concluded that the disability opinion of Dr. Rodman was not
adequately supported by the objective medical evidence.
With respect to Robbins’s argument that the
administrative law judge did not properly consider his
credibility, the administrative law judge was not required to
accept Robbins’s claims regarding his physical or mental
limitations. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.
1983)(providing that credibility determinations as to a claimant’s
testimony regarding the claimant’s limitations are for the

24

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 Robbins testify as well as Robbins’s girlfriend
testify, the administrative law judge is the one best suited to
assess their credibility.
We are satisfied that the administrative law judge
appropriately took into account all of Robbins’s limitations both
physical and mental in the residual functional capacity
assessment.
Finally, the evidence submitted by Robbins to the
Appeals Council after the ALJ’s decision is not a basis to reverse
the ALJ’s decision or remand for further proceedings. Evidence
submitted after the administrative law judge’s decision cannot be
used to argue that the administrative law judge’s decision is not
supported by substantial evidence.
589, 594-595 (3d Cir. 2001).

Matthews v. Apfel, 239 F.3d

The only purpose for which such

evidence can be considered is to determine whether it provides a
25

basis for remand under sentence 6 of section 405(g), 42 U.S.C.
Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833
(3d Cir. 1984).

Under sentence 6 of section 405(g) the evidence

must be “new” and “material” and a claimant must show “good cause”
for not having incorporated the evidence into the administrative
record. Id. The Court of Appeals for the Third Circuit explained
that to be material “the new evidence [must] relate to the time
period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent
deterioration of the previously non-disabling condition.” Id.
The items submitted to the Appeals Council related to new
conditions and a time after the second administrative hearing and
after the ALJ issued his decision and, consequently, are not
material. Robbins has the option to file a new application for
supplemental security income benefits based on this alleged new
evidence.20
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

20. Supplemental security income is a needs based program and
eligibility for this benefits is not limited based on an
applicant’s date last insured.
26

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

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

Dated: February 27, 2014

27