Chupcavich v. Colvin

Filing 20

MEMORANDUM (Order to follow as separate docket entry) OPINON re: 1 Complaint.Signed by Magistrate Judge Martin C. Carlson on September 28, 2016. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CAROL CHUPCAVICH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration
Defendant.

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Civil No. 3:15-CV-2467

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION

This is the plaintiff’s second application for social security disability benefits.
Chupcavich had previously filed an application for disability insurance benefits
which was denied by an Administrative Law Judge on June 15, 2006. (Tr. 12.) Some
six years then passed before Chupcavich filed this second application for disability
insurance benefits on September 24, 2012. (Id.) Remarkably, even though more than
six years had passed, in this second application, filed in September of 2012,
Chupcavich alleged that the onset of her disability began on June 17, 2006, two days
after the denial of her first application.

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Chupcavich sought benefits under Title II of the Social Security Act, which
provides for disability insurance benefits for workers who have become disabled. 42
U.S.C. § 423. Under Title II, “[a] title II worker cannot be found disabled under the
Act unless insured status is also met at a time when the evidence establishes the
presence of a disabling condition(s).” See SSR 83-20, 1983 WL 31249. Therefore,
this second disability application related to a closed period of disability since
Chupcavich’s last date insured as a worker was December 31, 2006. (Tr. 15.)
Chupcavich’s application for benefits during this closed six month period in
2006 was supported by medical opinions which were prepared long after this closed
period, and in one instances included a medical opinion from a medical source who
had not even begun to treat Chupcavich until 2010, four years after the alleged period
of disability. Further, the actual treatment records pertaining to Chupcavich’s care
were fairly unremarkable for this closed period of claimed disability, but showed
some increasing symptoms in the years after this claimed closed period of Title II
disability, June 17 through December 31, 2006.
Upon a review of the extremely limited medical evidence supporting
Chupcavich’s 2012 claim of disability during a six month period in 2006, the
Administrative Law Judge (ALJ) denied this application for Title II benefits. (Tr. 1224.) Chupcavich has appealed this decision, (Doc. 1.), but for the reasons set forth
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below, upon a consideration of the entire record in this matter, finding that the ALJ’s
decision denying benefits is supported by substantial evidence which was thoroughly
addressed in the administrative agency proceedings, the decision of the Commissioner
will be affirmed.
II.

STATEMENT OF FACTS AND OF THE CASE
A.

THE MEDICAL EVIDENCE RELATING TO CHUPCAVICH’S
CLOSED PERIOD OF CLAIMED DISABILITY

As we have noted this case involves a Title II application for disability benefits
relating to a closed six month period of claimed disability, June 17, 2006 through
December 31, 2006. With respect to this closed period of alleged disability,
Chupcavich claimed that she was disabled due to the combined effects of
fibromyalgia, carpel tunnel syndrome, osteopenia, related joint disease, headaches
and memory problems. (Tr. 159.)
The medical evidence in support of this application, as it related to the closed
period of disability in 2006, was extremely limited and reflected a generally
unremarkable course of treatment for Chupcavich. Chupcavich was seen by her
primary care physician, Dr. Oley, three times between June and December 2006. (Tr.
949.) At the first of these appointments, a new patient appointment on June 29,
2006, Chupcavich complained of fibromyalgia, back pain, poor sleep and memory

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loss. (Tr. 704-05.) Dr. Oley conducted some testing which confirmed bilateral
tender points in Chupcavich’s back, and ordered an array of tests, but initially
prescribed a very conservative course of treatment, consisting of exercise and use of
a TENS unit. (Tr. 705.) Blood tests conducted at this time were unremarkable and
indicated a normal sedimentation rate, which ruled out rheumatoid arthritis. (Tr.
746.) Chupcavich’s thyroid hormone level, cardiac profile, and general blood
chemistry report were all within normal ranges except for calcium, glucose, and
sodium levels, which were low (Tr. 747-49.) Likewise, a sleep study at Geisinger
Sleep Disorders Center on July 17, 2006, was negative for obstructive sleep apnea
and there were no periodic limb movements observed. (Tr. 281-82.)
In August 2006, Dr. Oley saw Chupcavich again to follow up on her
fibromyalgia complaint. (Tr. 703.) At that time, x-rays and test results were all
normal, and there was no material change in her conservative course of treatment.
(Tr. 19.) Finally, in December of 2006 Dr. Oley saw Chupcavich after she suffered
a broken rib. The doctor prescribed Percocet for the pain caused by her rib injury, but
did not make any other significant medical findings at this time. (Tr. 702.)
These sparse medical records, which reflected medical concerns of a nonurgent nature, fairly benign test results, and a conservative course of treatment,
represent the totality of the objective medical evidence which supported
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Chupcavich’s claim of total disability during this closed period of Title II benefit
eligibility.
While medical evidence relating to Chupcavich’s subsequent care and
treatment in the seven years following this closed period of benefit eligibility suggest
that Chupcavich’s conditions have progressively worsened over time, the progression
of her illness, as demonstrated in the medical records, further undercuts any claim that
she was disabled between June and December 2006. Indeed, it appears that years
passed after this closed period of eligibility before Chupcavich sought more
aggressive treatment for her worsening medical conditions. For example, it seems
that Chupcavich first began treatment with a rheumatologist in October of 2008, two
years after her disability eligibility expired. (Tr. 294.) Further, Chupcavich only
commenced active, on-going pain management treatment in 2010 and 2011, four
years after her disability eligibility expired. (Tr. 445-47, 899-905.) This significant
temporal gap between Chupcavich’s claimed closed period of disability, and her
actual treatment for these allegedly disabling conditions, further undermined this
claim.
Chupcavich’s testimony at the hearing conducted on this disability application
on December 19, 2013, also raised questions regarding the wholly disabling effect of
these medical conditions. During this limited closed period of Title II disability, June
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through December 2006, Chupcavich acknowledged that she drove a car “quite
often,” (Tr. 39.); sought only intermittent medical treatment, (Tr. 40-41.); engaged
in yardwork, shopping cooking and cleaning, (Tr. 41.); participated in physical
therapy, (Tr. 42.); and was able to lift light objects and ambulate up stairs. (Tr. 43.)
In contrast to this evidence which suggested that Chupcavich’s physical
conditions were not wholly disabling in 2006, the plaintiff presented three pieces of
countervailing evidence, each of which the ALJ was required to assess in light of the
potentially distorting effect of hindsight. First, Chupcavich provided the ALJ with
a 2012 letter from a pain management physician, Dr. Janerich. (Tr. 899-905.) In this
letter the doctor acknowledged that he had only begun treating Chupcavich in 2010,
four years after this period of disability came to a close. Nonetheless, Dr. Janerich
opined that Chupcavich suffered from disabling physical conditions, and offered an
opinion that those conditions were disabling five years prior to his first medical
encounter with the plaintiff, in 2005. (Id.) In addition, Chupcavich’s spouse
described his perception of Chupcavich’s physical limitations over the years. (Tr. 6175.) While Mr. Chupcavich’s testimony generally supported the plaintiff’s disability
claim, and indicated that these disabling conditions had existed seven years prior, in
2006, there was an equivocal quality to this testimony of past disability, with Mr.
Chupcavich stating that, with respect to the decline in his wife’s condition since
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2006: “it’s still kind of the same. It’s probably gotten worse, but at least the same.”
(Tr. 61.) Finally, Chupcavich’s primary care physician, Dr. Oley, wrote a letter in
support of her disability claim on December 31, 2013, seven years after this closed
period of disability came to an end. (Tr. 949-50.) This letter described the doctor’s
on-going treatment of the plaintiff, and opined that her conditions were disabling.
(Id.) Yet, while reaching these conclusions, Dr. Oley acknowledged that his actual
treatment records only reflected three medical encounters with the plaintiff during the
period form June through December 2006. Furthermore, the doctor conceded that at
that time “I probably would have been reserved in my assessment of her work
capacity.” (Tr. 949.) Thus, it was only with the hindsight of treatment over a seven
year span that the doctor now opined that Chupcavich was wholly disabled many
years earlier, in 2006, an assessment that was not borne out by the doctor’s
contemporaneous treatment records. (Id.)
It is against the backdrop of this sparse medical record pertaining to this closed
period of Title II disability eligibility that the ALJ issued its March 4, 2014, decision
denying Chupcavich’s second application for DIB benefits. (Tr. 12-24.)
B.

THE ALJ DECISION

On March 4, 2014, the Administrative Law Judge (ALJ) issued a decision
denying Chupcavich’s second, closed period Title II DIB application. (Tr. 12-24.)
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In this decision, the ALJ noted the denial of Chupcavich’s prior application, and
identified the relevant temporal scope of this application to be the six months between
June and December 2006. (Tr. 12, 15.) Neither of these findings are contested in this
appeal.
The ALJ then went on the analyze this closed period disability claim under the
familiar five-step framework which applies to such claims. In conducting this
analysis the ALJ found at step two of this analysis that Chupcavich suffered from the
following severe impairments: fibromyalgia, carpel tunnel syndrome, and osteopenia.
(Tr. 15.)

The ALJ also identified other, non-severe, impairments, including

endmetriosis, rib fracture and disc disease. (Tr. 15.) At step three the ALJ concluded
that none of these impairments met the exacting requirements of a Social Security
listing which would have rendered the impairment per se disabling. (Tr. 17-18.)
Evaluating the sparse objective medical evidence relating to the closed benefit period
of June through December 2006, and also assessing the countervailing testimony and
evidence, the ALJ concluded that Chupcavich had retained the residual functional
capacity to perform light work during this six month period in 2006. In reaching this
conclusion, the ALJ focused upon the lack of objective medical evidence which
would have supported a finding of total disability in 2006. (Tr. 18-21.) The ALJ also
observed that Chupcavich’s acccount of her own activities of daily living in 2006 was
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consistent with a limited capacity for performing light work. (Id.) The ALJ largely
discounted the post hoc evidence provided by Mr. Chupcavich, Dr. Janerich and Dr.
Oley in 2012 and 2013, to the extent that it suggested that Chupcavich had been
wholly disabled six years earlier, in 2006. (Id.) On this score, the ALJ noted that,
since Dr. Janerich’s first medical encounter with Chupcavich took place four years
after this closed period of claimed disability, his opinion regarding her condition
years prior to any treatment deserved no weight. (Id.) The ALJ acknowledged that
Mr. Chupcavich and Dr. Oley both had first hand experience with the plaintiff during
2006, but found that their testimony did not establish that the plaintiff was wholly
disabled for several reasons. First, the ALJ observed that the testimony of these
witnesses was not supported by the objective medical data, or Chupcavich’s reported
activities of daily living. The ALJ also noted that Chupcavich’s subsequent medical
history, which revealed that she delayed for several years before seeking further
treatment for these conditions, was inconsistent with the claimed severity of her
symptoms in 2006. (Id.) The ALJ also acknowledged the potentially distorting
influence of hindsight when witnesses are called upon to recall events which occurred
seven years earlier, and particularly noted that these considerations of sympathy and
support for a spouse may color the perception of family member like the plaintiff’s
husband. (Id.)
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Having reached these findings regarding the quality of the evidence and the
credibility of witnesses, the ALJ determined that Chupcavich had the capacity to
perform light work in 2006. Based upon the testimony of a vocational expert, the
ALJ then found that Chupcavich could perform jobs which existed in the national and
regional economy in 2006, and concluded that she was not disabled. (Tr. 21-24.)
This appeal followed. (Doc. 1.) The parties have fully briefed their positions
in this matter, (Docs. 15 and 16.) and this case is, therefore, ripe for resolution. For
the reasons set forth below, the decision of the Commissioner will be affirmed.
III.

DISCUSSION
A.

SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether the
findings of the final decision-maker are supported by substantial evidence in the
record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C.
§405(g) by reference); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200(3d Cir.
2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536(M.D.Pa. 2012). 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). Substantial evidence is less than a
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preponderance of the evidence but more than a mere scintilla. Richardson v. Perales,
402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if
the ALJ ignores countervailing evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But 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 [the ALJ’s decision] from being
supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S.
607, 620 (1966). “In determining if the Commissioner’s decision is supported by
substantial evidence the court must scrutinize the record as a whole.” Leslie v.
Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court,
therefore, is not whether plaintiff is disabled, but whether the Commissioner’s finding
that she is not disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an
ALJ’s errors of law denote a lack of substantial evidence.”)(alterations omitted);
Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D.Pa. 1981)(“The Secretary’s
determination as to the status of a claim requires the correct application of the law to
the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that
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the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he
court has plenary review of all legal issues . . . .”).
B.

INITIAL BURDENS OF PROOF , PERSUASION AND ARTICULATION
FOR THE ALJ

To receive benefits under the Social Security Act by reason of disability, a
claimant 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. §423(d)(1)(A); 42 U.S.C.
§1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this
requirement, a claimant must have a severe physical or mental impairment that makes
it impossible to do his or her previous work or any other substantial gainful activity
that exists in the national economy.

42 U.S.C. §423(d)(2)(A); 42 U.S.C.

§1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under
Title II of the Social Security Act, a claimant must show that he or she contributed to
the insurance program, is under retirement age, and became disabled prior to the date
on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a fivestep sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). Under this

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process, the ALJ must sequentially determine: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment; (4) whether
the claimant is able to do his or her past relevant work; and (5) whether the claimant
is able to do any other work, considering his or her age, education, work experience
and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC. RFC
is defined as “that which an individual is still able to do despite the limitations caused
by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d
Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the
claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§§404.1545(a)(2), 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5);
42 U.S.C. §1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20
C.F.R. §§404.1512, 416.912; Mason, 994 F.2d at 1064.
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Once this burden has been met by the claimant, it shifts to the Commissioner
at step five to show that jobs exist in significant number in the national economy that
the claimant could perform that are consistent with the claimant’s age, education,
work experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d
at 1064.
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate
which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in
his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).

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C.

LEGAL BENCHMARKS FOR THE ALJ’S ASSESSMENT
MEDICAL OPINION EVIDENCE

OF

The Commissioner’s regulations defines medical opinions as “statements from
physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including [a
claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do despite
impairments(s), and [a claimant’s] physical or mental restrictions.

20 C.F.R.

§§404.1527(a)(2), 416.927(a)(2).1 Regardless of its source, the ALJ is required to
evaluate every medical opinion received. 20 C.F.R. §§404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is
guided by factors outlined in 20 C.F.R. §§404.1527(c) and 416.927(c). “The
regulations provide progressively more rigorous tests for weighing opinions as the
ties between the source of the opinion and the individual become weaker.” Social
Security Ruling (“SSR”) 96-6p, 1996 WL 374180 at *2 (S.S.A. 1996).
1

Medical source opinions on issues that are dispositive of a case, i.e., whether
a claimant is disabled, are reserved to the Commissioner and do not constitute
medical opinions defined by 20 C.F.R. §§404.1527(a)(2) and 416.927(a)(2). 20
C.F.R. §§404.1527(d), 416.927(d). Such opinions must never be ignored, and must
be considered based on the applicable factors in 20 C.F.R. §§404.1527(c) and
416.927(c). SSR 96-5p, 1996 WL 374183 at *3 (S.S.A. 1996). However, medical
opinions on issues reserved Commissioner, regardless of their source, are never
entitled to controlling weight under 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2).
See 20 C.F.R. §§404.1527(d)(3), 416.927(d)(3); SSR 96-5p, 1996 WL 374183 at *2.
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Treating sources have the closest ties to the claimant, and, therefore, their
opinions are generally entitled to more weight. See 20 C.F.R. §§404.1527(c)(2),
416.927(c)(2)(“Generally, we give more weight to opinions from your treating
sources...”); 20 C.F.R. §§404.1502, 416.902 (defining treating source). Under some
circumstances, the medical opinion of a treating source may even be entitled to
controlling weight. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2); see also SSR 96-2p,
1996 WL 374188 (S.S.A. 1996)(explaining that controlling weight may be given to
a treating source’s medical opinion only where it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent
with the other substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the
Commissioner’s regulations direct the ALJ to consider the following factors, where
applicable, in deciding the weight given to any non-controlling medical opinions:
length of the treatment relationship and frequency of examination; nature and extent
of the treatment relationship; the extent to which the source presented relevant
evidence to support his or her medical opinion, and the extent to which the basis for
the source’s conclusions were explained; the extent to which the source’s opinion is
consistent with the record as a whole; whether the source is a specialist; and, any
other factors brought to the ALJ’s attention. 20 C.F.R. §§404.1527(c), 416.927(c).
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Furthermore, as discussed above, it is beyond dispute that, in a social security
disability case, the ALJ’s decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle
applies with particular force to the opinion of a treating physician. See 20 C.F.R.
§§404.1527(c)(2), 416.927(c)(2)(“We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s opinion.”).
“Where a conflict in the evidence exists, the ALJ may choose whom to credit but
‘cannot reject evidence for no reason or the wrong reason.’” Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999)(quoting Mason, 994 F.2d at 1066)); see also Morales
v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
D.

THE DECISION DENYING CHUPCAVICH TITLE II BENEFITS FOR
A CLOSED SIX MONTH PERIOD BETWEEN JUNE AND DECEMBER
2006 IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND MUST BE
AFFIRMED

In this case with respect to Chupcavich’s Title II claim, her alleged date of
onset was June 17, 2006, two days after the denial of her prior disability claim, and
her date last insured was December 31, 2006. Thus, to prevail on this claim
Chupcavich was required to demonstrate that she was wholly disabled during this six
month period between June and December 2006.

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The ALJ found that Chupcavich did not meet her burden of proof on this
narrowly focused claim when she relied upon evidence developed many years after
the claimed closed period of disability, and the contemporaneous medical records for
this closed period did not support the severity of these alleged impairments. In our
view, substantial evidence supports this finding. Therefore, given the limited scope
of our review in this case we will affirm this finding.
On appeal, Chupcavich challenges this ALJ’s decision on three grounds. First,
the plaintiff argues that the ALJ erred at step three of this sequential analysis when
the ALJ failed to find that Chupcavich met the per se disabling criteria of Social
Security listing 14.09. Chupcavich faces an exacting burden of proof and persuasion
in advancing this claim. At step three of the evaluation process, the ALJ must
determine whether a claimant’s alleged impairment is equivalent to a number of listed
impairments that are acknowledged as so severe as to preclude substantial gainful
activity. 20 C.F.R. §416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, App. 1; Burnett,
220 F.3d 112, 119. In making this determination, the ALJ is guided by several basic
principles set forth by the social security regulations, and caselaw. First, if a
claimant’s impairment meets or equals one of the listed impairments, the claimant is
considered disabled per se, and is awarded benefits. 20 C.F.R. §416.920(d); Burnett,
220 F.3d at 119. However, to qualify for benefits by showing that an impairment, or
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combination of impairments, is equivalent to a listed impairment, plaintiff bears the
burden of presenting “medical findings equivalent in severity to all the criteria for the
one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990); 20
C.F.R. §416.920(d). An impairment, no matter how severe, that meets or equals only
some of the criteria for a listed impairment is not sufficient. Id.
The determination of whether a claimant meets or equals a listing is a medical
one. To be found disabled under step three a claimant must present medical evidence
or a medical opinion that his or her impairment meets or equals a listing. An
administrative law judge is not required to accept a physician’s opinion when that
opinion is not supported by the objective medical evidence (raw data) in the record.
Maddox v. Heckler, 619 F. Supp. 930, 935-936 (D.C.Okl. 1984); Carolyn A.
Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal
Courts, §3:22 (2014), available at Westlaw SSFEDCT.

However, it is the

responsibility of the ALJ to identify the relevant listed impairments, because it is “the
ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits.” Burnett, 220 F.3d at 120 n.2.
Given that Chupcavich must meet all elements of a listing to prevail at step
three of this sequential analysis the plaintiff’s step three argument on appeal fails on
multiple scores. First, it fails because the evidence did not show that Chupcavich met
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the paragraph A criteria of Listing 14.09 in that she did not demonstrate that she was
unable to ambulate effectively. In this regard, the evidence simply did not show that
Chupcavich needed or used a walker, crutches, or two canes to walk during 2006.
Likewise, Chupcavich also failed to show that she met or equaled the criteria of
paragraph B of Listing 14.09 since she did not demonstrate inflammation or
deformity in one or more major peripheral joints with involvement of two or more
organs/body systems at a moderate level of severity and at least two of the
constitutional symptoms or signs. Chupcavich also failed to show that she met or
equaled the criteria of paragraph C of 14.09, which requires ankylosing spondylitis
or other spondyloarthropies with ankylosis (fixation) of the dorsolumbar or cervical
spine of 45 or more degrees, or ankylosis of 30 degrees and involvement of two or
more organs or body systems to a moderate level of severity. Finally, Chupcavich’s
sparse medical evidence from June through December 2006 simply did not meet the
criteria of paragraph D of Listing 14.09 since she did not show repeated
manifestations of inflammatory arthritis, with at least two of the constitutional
symptoms or signs, with a marked limitation of either activities of daily living,
maintaining social functioning, or completing tasks in a timely manner due to
deficiencies in concentration, persistence or pace.

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As the ALJ correctly noted, Chupcavich’s diagnostic imaging did not support
a listing level severity. Indeed, two years after her insured status expired on
December 31, 2006, an MRI of her lumbar spine on May 2, 2008, showed only mild
curvature of the spine, mild bulging of the L5-S1 disc, with no significant spinal
canal or foraminal compromise. (Tr. 882.) A study of her knees on the same date
showed minimal degenerative changes. (Tr. 884.) Thus, while Chupcavich submitted
no diagnostic lumbar or extremity studies during the relevant period, studies
conducted two years after the relevant period showed no significant findings which
would have supported a finding of a per se disabling condition. In the absence of
such proof, this argument fails.
In addition, the ALJ properly weighed the medical evidence and lay testimony
of Chupcavich’s spouse. In considering this evidence, the ALJ correctly concluded
that the statement of Dr. Janerich, whose clinical encounters with Chupcavich began
four years after this closed period of disability, deserved little weight. The ALJ also
carefully considered, but discounted, the statement of Chupcavich’s treating
physician which was prepared seven years after the close of this period of disability.
On this score, it is axiomatic that the determination of disability lies with the
Commissioner and not with any medical source. In this case, the ALJ carefully
considered Dr. Oley’s opinion but discounted it since the opinion was not supported
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by objective, contemporaneous medical findings and tests, was undermined by the
conservative and delayed history of treatment for Chupcavich’s conditions, and was
inconsistent with some of Chupcavich’s own reported activities of daily living during
the relevant time frame. This careful analysis draws support from substantial
evidence in the record before the ALJ and, therefore, this determination may not be
disturbed on appeal.
Furthermore, the ALJ appropriately addressed and assessed the testimony of
Chupcavich’s spouse, who was also called upon to testify from a perspective seven
years removed from the closed period of claimed disability regarding his wife’s
medical condition. When considering such lay testimony, it is well-settled that
“‘[T]he ALJ must also consider and weigh all of the non-medical evidence before
him.’ Burnett v. Commissioner of Social Security Administration, 220 F.3d 112, 122
(3d Cir.2000). The ALJ must consider whether opinions from non-medical sources,
such as ‘spouses, other relatives, friends, employers, and neighbors,’ are consistent
with the objective medical evidence. Social Security Ruling 06–03P, 2006 WL
2329939, at *3, 6 (S.S.A.). ‘Although allegations of pain and other subjective
symptoms must be consistent with objective medical evidence, the ALJ must still
explain why [s]he is rejecting the testimony.’ Burnett, 220 F.3d at 122 (internal
citations omitted).” Eskridge v. Astrue, 569 F. Supp. 2d 424, 439 (D. Del. 2008).
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Here, the ALJ’s decision did precisely what the law and regulations call upon
an ALJ to do: it assessed the spouse’s testimony in light of the objective medical
evidence. That testimony, which the ALJ concluded may have been colored by
considerations of sympathy and hindsight, simply was not supported by the
contemporaneous objective medical evidence. Instead, these sparse medical records
reflected medical concerns of a non-urgent nature, fairly benign test results, and a
conservative course of treatment, all of which was inconsistent with wholly disabling
illness. Nor was this testimony congruent with Chupcavich’s own statements
regarding her activities of daily living, yet another factor which undermined the
weight to be given to this evidence.
Finally, on the sparse medical record presented in support of this closed period
claim, we find that the ALJ did not err in reaching a residual functional capacity
assessment which concluded that Chupcavich could perform light work. As part of
this sequential disability analysis “the ALJ must also determine the claimant's residual
functional capacity (RFC). 20 C.F .R. § § 404.1520(e), 416.920(e). RFC is defined
as ‘that which an individual is still able to do despite the limitations caused by his or
her impairment(s).’ Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir.2000)
(citations omitted); see also 20 C.F.R. §§ 404.1545, 416.945. In making this
assessment, the ALJ considers all of the claimant's impairments, including any
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medically determinable non-severe impairments. 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2).” Kalenkoski v. Colvin, No. 3:14-CV-00592, 2014 WL 5093129, at
*3 (M.D. Pa. Oct. 10, 2014).
Here, the ALJ found that Chupcavich could perform a modified range of light
work, which is defined as work involving lifting no more than ten pounds frequently,
twenty pounds occasionally, sitting for two hours, and standing or walking up to six
hours a day. 20 C.F.R. § 404.1567(b). In reaching this RFC assessment for
Chupcavich, the ALJ also specifically took into account the particular and credibly
established limitations experienced by the plaintiff during this closed period of
claimed disability. Thus, given Chupcavich’s history of fibromyalgia and osteopenia
the ALJ limited this work to occasional balancing, stooping, crouching, crawling,
kneeling, and climbing (but not on ladders, ropes, or scaffolds), and imposed
environmental restrictions on exposure to temperature extremes, wetness, humidity,
vibrations and hazards, such as working around moving machinery and at unprotected
heights. (Tr. 18.) Moreover, given Chupcavich’s history of carpal tunnel surgery and
fibromyalgia, the ALJ restricted the work to only occasional pushing or pulling with
the upper and lower extremities. (Tr. 18.) By carefully tailoring this residual
functional capacity assessment to the limitations established by the contemporaneous
medical evidence, and imposing limitations that were consistent with Chupcavich’s
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own sworn testimony regarding her activities of daily living in 2006, the ALJ
properly framed an RFC assessment which comported with the proof. Nothing more
is required in this case, and the formulation of this assessment based upon the
evidence of record does not compel a remand.
In sum, under the deferential standard of review which applies to Social
Security appeals, we conclude that the ALJ’s decision is supported by substantial
evidence which is articulated by the ALJ. Therefore, this decision will be affirmed.
We note, however, that this finding does not necessarily preclude Chupcavich from
receiving any benefits for a worsening medical condition. The Social Security
Administration oversees a number of programs designed to assist those facing
medical challenges. For example, under Title II of the Social Security Act, the
Commissioner provides for disability insurance benefits for workers who have
become disabled. 42 U.S.C. § 423. Title XVI of the Social Security Act, in turn,
establishes the Supplemental Security Income benefit program, or SSI. “The SSI
program, which is another public assistance program established by federal statute,
see 42 U.S.C. §§ 1381–1383 (1982), provides cash grants to low-income individuals
who are aged, blind, or disabled. 42 U.S.C. § 1381 (1982).” Com. of Pa. v. United
States, 752 F.2d 795, 797 (3d Cir. 1984).

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These two programs, which are part of a broader and more comprehensive
network of care for the infirm and disabled, each have their own eligibility
requirements and standards. Moreover, as the Commissioner has long acknowledged
the requirements to qualify for benefits under Title II and Title XVI differ in a
number of material respects. See SSR 83-20, 1983 WL 31249. Thus, Title II
provides for some retroactive benefits whereas Title XVI does not. Id. Moreover,
unlike Title XVI applicants, “[a] title II worker cannot be found disabled under the
Act unless insured status is also met at a time when the evidence establishes the
presence of a disabling condition(s).” Id. Thus, the availability of relief under Title
II and Title XVI may differ significantly, requiring independent evaluation of any
claim made under both provisions of the law.
Here, we find that Chupcavich has not met the standards necessary to support
a Title II closed period claim for benefits during the period from June through
December 2006. We do not opine regarding whether Chupcavich’s worsening helath
from 2007 to the present would support an independent application for relief under
Title XVI. We simply observe, as the Commissioner did, (Doc. 16, p.2.), that such
relief may be available to Chupcavich.

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IV.

CONCLUSION

Accordingly, for the foregoing reasons, the decision of the Commissioner is
AFFIRMED. An appropriate order follows.
Submitted this 28th day of September, 2016.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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