Vernarec v. Astrue

Filing 15

MEMORANDUM and ORDER - AFFIRMING the decisiion of the Commissioner of Social Security, denying Pltf's disability insurance benefits and supplemantal security income; Clerk of Court is directed to enter judgment in favor of the Commisioner and against David P. Vernarec; Clerk of Court is directed to CLOSE case..Signed by Honorable James M. Munley on 9/8/11. (sm, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DAVID VERNAREC,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

No. 4:10-CV-1275
(Complaint Filed 6/18/10)
(Judge Munley)

MEMORANDUM AND ORDER
Background
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff David Vernarec’s claim for social security
disability insurance benefits and supplemental security income
benefits.

For the reasons set forth below we will affirm the

decision of the Commissioner.
Disability insurance benefits are paid to an individual
if that individual is disabled and “insured,” that is, the
individual has worked long enough and paid social security taxes.
The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.”

It

is undisputed that Vernarec met the insured status requirements
of the Social Security Act through September 30, 2010. Tr. 13, 15

and 130.1
Supplemental security income is a federal income
supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.
Vernarec was born in the United States on April 17,
1966. Tr. 47, 76, 100 and 107.

Vernarec completed the 10th grade

and can read, write, speak and understand the English language.
Tr. 133.

Vernarec has past relevant employment2 as a cable

installer which was described as skilled, medium work by a
vocational expert.3 Tr. 71.

1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on September
13, 2010.
2. Past relevant employment in the present case means work
performed by Vernarec during the 15 years prior to the date his
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565.
3. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
2

Records of the Social Security Administration reveal
that Vernarec had earnings from January 1, 1995, through 2009,
the fifteen years prior to the date his claim was adjudicated, as
follows:
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004

$ 26583.72
22005.47
51020.00
52132.28
55630.39
50933.94
49701.36
22189.38
49344.11
3055.65

carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
20 C.F.R. §§ 404.1567 and 416.967.
3

2005
2006
2007
2008
2009
Tr. 117.

614.00
7209.00
9981.72
0.00
0.00

Vernarec’s total earnings from 1995 through 2009 were

$400,401.02. Tr. 117.
Vernarec claims that he became disabled on April 15,
2004,4 because of degenerative spondylosis,5 knee pain, major

4. Vernarec was 37 years of age on the alleged disability onset
date and only 43 years of age at the time of the administrative
law judge’s hearing held on June 6, 2009. Vernarec is considered
a “younger individual” whose age would not seriously impact his
ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and
416.963(c).
5. Degenerative disc disease has been described as follows:
As we age, the water and protein content of the
cartilage of the body changes. This change results in
weaker, more fragile and thin cartilage. Because both
the discs and the joints that stack the vertebrae
(facet joints) are partly composed of cartilage, these
areas are subject to wear and tear over time
(degenerative changes). The gradual deterioration of
the disc between the vertebrae is referred to as
degenerative disc disease. Wear of the facet cartilage
and the bony changes of the adjacent joint is referred
to as degenerative facet joint disease or
osteoarthritis of the spine.
Degeneration
spondylosis.
MRI scanning
"disc space"

of the disc is medically referred to as
Spondylosis can be noted on x-ray tests or
of the spine as a narrowing of the normal
between the adjacent vertebrae.

Degenerative Disc Disease & Sciatica, MedicineNet.com,
http://www.medicinenet.com/degenerative_disc/page2.htm (Last
accessed September 6, 2011). Degenerative disc disease is
considered part of the normal aging process. Id.
4

depressive disorder and an anxiety-related disorder. Document 13,
Plaintiff’s Brief, p. 1; Tr. 134 and 170.

Vernarec’s last

employment was in July, 2007.6 Tr. 134.
On October 30, 2007,

Vernarec filed protectively7 an

application for supplemental security income benefits and on
November 7, 2007, an application for disability insurance benefits.
Tr. 13, 76-77, 99 and 100-112.

On April 18, 2008, the Bureau of

Disability Determination8 denied Vernarec’s applications. Tr. 79-87.
On May 22, 2008, Vernarec requested a hearing before an
administrative law judge. Tr. 88-89.

Approximately 13 months later,

a hearing before an administrative law judge was held on June 30,
2009. Tr. 40-75.

On August 10, 2009, the administrative law judge

6. As will be explained infra Vernarec did engage in substantial
gainful activity after his alleged onset date of April 15, 2004.
Substantial gainful activity is work that “involves doing
significant and productive physical or mental duties” and “is
done (or intended) for pay or profit.” 20 C.F.R. § 416.910. In
order to amount to substantial gainful activity the individual’s
earnings have to rise to at least a minimum level set by
regulations of the Social Security Administration.
7. 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.
8. The Bureau of Disability Determination is an agency of the
Commonwealth of Pennsylvania which initially evaluates
applications for disability insurance benefits and supplemental
security income benefits on behalf of the Social Security
Administration. Tr. 79 and 83.
5

issued a decision denying Vernarec’s applications. Tr. 13-23.

On

April 29, 2010, Vernarec requested that the Appeals Council review
the administrative law judge’s decision and on April 29, 2010, the
Appeals Council concluded that there was no basis upon which to
grant Vernarec’s request for review. Tr. 1-3.

Thus, the

administrative law judge’s decision stood as the final decision of
the Commissioner.
On June 18, 2010, Vernarec filed a complaint in this court
requesting that we reverse the decision of the Commissioner denying
him social security disability insurance and supplemental security
income benefits.

The Commissioner filed an answer to the complaint

and a copy of the administrative record on September 13, 2010.
Vernarec filed his brief on January 11, 2011, and the Commissioner
filed his brief on February 14, 2011.

The appeal9 became ripe for

disposition on March 3, 2011, when Vernarec elected not to file a
reply brief.
STANDARD OF REVIEW
When considering a social security appeal, we have plenary
review of all legal issues decided by the Commissioner.

See Poulos

v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007);
Schaudeck v. Commissioner of Social Sec. Admin.,

181 F.3d 429, 431

9. 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

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

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

Substantial evidence has been described as more than a mere

7

scintilla of evidence but less than a preponderance.
F.2d at 1213.

Brown, 845

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."
(1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488

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.

Mason, 994 F.2d at 1064.

The

Commissioner must indicate which evidence was accepted, which
evidence was rejected, and the reasons for rejecting certain
evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707.
Therefore, a court reviewing the decision of the Commissioner must
scrutinize the record as a whole.

Smith v. Califano, 637 F.2d 968,

970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d
Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff must
demonstrate an “inability to engage in any substantial gainful

8

activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,

[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in
evaluating disability insurance and supplemental security income
claims.

See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos,

474 F.3d at 91-92.

This process requires the Commissioner to

consider, in sequence, whether a claimant (1) is engaging in
substantial gainful activity,10 (2) has an impairment that is severe

10. 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
duties” and “is done (or intended) for pay or profit.” 20 C.F.R.
§ 404.1510 and 20 C.F.R. § 416.910.
9

or a combination of impairments that is severe,11 (3) has an
impairment or combination of impairments that meets or equals the
requirements of a listed impairment,12 (4) has the residual
functional capacity to return to his or her past work and (5) if
not, whether he or she can perform other work in the national
economy. Id.

As part of step four the administrative law judge must

determine the claimant’s residual functional capacity. Id.13

11. The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is
a threshold test. 20 C.F.R. §§ 404.1520(c) and 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. §§ 404.1520(d)-(g) and 416.920(d)-(g). Furthermore, all
medically determinable impairments, severe and non-severe, are
considered in the subsequent steps of the sequential evaluation
process. 20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 and
416.945(a)(2). An impairment significantly limits a claimant’s
physical or mental abilities when its effect on the claimant to
perform basic work activities is more than slight or minimal.
Basic work activities include the ability to walk, stand, sit,
lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
12. 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.
13. If the claimant has the residual functional capacity to do his
or her past relevant work, the claimant is not disabled.
10

Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social Security

Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and
continuing basis contemplates full-time employment and is defined as
eight hours a day, five days per week or other similar schedule. The
residual functional capacity assessment must include a discussion of
the individual’s abilities.

Id; 20 C.F.R. §§ 404.1545 and 416.945;

Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional capacity’ is
defined as that which an individual is still able to do despite the
limitations caused by his or her impairment(s).”).
MEDICAL RECORDS
Before we address the administrative law judge’s decision
and the arguments of counsel, we will review in detail Vernarec’s
medical records.
The first medical records that we encounter are from 2002.
On February 14, 2002, Vernarec was taken by ambulance to the Lehigh
Valley Hospital emergency department. Tr. 199.

Vernarec overdosed

on Xanax, Effexor, Metoprolol14 after consuming a large quantity of

14. Xanax is a drug used to treat anxiety. Xanax, Drugs.com,
http://www.drugs.com/xanax.html (Last accessed September 6,
2011). Effexor is a drug used to treat major depression and
anxiety. Effexor, Drugs.com, http://www.drugs.com/effexor.html
(Last accessed September 6, 2011). Metoprolol (also known as
Lopressor) is a drug used to treat angina and high blood
pressure. Metoprolol, Drugs.com, http://www.drugs.com/metoprolol
.html (Last accessed September 6, 2011).
11

alcohol. Id.

Vernarec’s blood alcohol level at the time of

admission to the emergency department was .310, almost four times
the legal limit.15 Tr. 186 and 190.

The medical records indicate

that Vernarec “consumed 50 pills (Effexor HTN medication)” and
“denied he had been experiencing suicide ideas prior to becoming
intoxicated.” Tr. 186.

He further stated that “he had been

experiencing stress over dissolution of marriage” and “expressed
remorse over the incident.” Id.
overnight.

Vernarec was held at the hospital

A report prepared by Gary Bonfante, D.O., on February

15, 2002, states in part as follows: “Patient was seen and examined
by my colleague Dr. Jim McHugh . . . .Patient apparently has a
history of alcohol abuse, has previously been in rehab and recently
started to drink again after he became estranged from his wife . . .
This morning patient is sober . . . Has absolutely no desire to
further harm himself and is agreeable to outpatient follow up.” Tr.
198. Vernarec was discharged from the hospital on February 15, 2002.
Tr. 187, 198 and 201.

At discharge it was noted that he had

suffered an “acute depression” and “OD” and that he had improved.
Tr. 203.16

15. The legal limit in Pennsylvania is .08 percent.
§ 3731.

75 Pa.C.S.A.

16. Counsel for Vernarec incorrectly states that restraints were
used on Vernarec during this visit to the hospital. Doc. 13,
Plaintiff’s Brief, p. 4. The medical record states that the
intervention utilized was “6” which is a designation for “Direct
Observation -Family/Staff.” Tr. 194.
12

On May 4, 2004, Vernarec had an appointment with Paul
Webb, M.D., of Wyalusing Guthrie Clinic.

Tr. 208-209.

At that

appointment Vernarec complained of pain in his legs and feet.

Dr.

Webb’s medical notes are difficult to decipher but we can discern
that Dr. Webb’s assessment was that Vernarec suffered from high
blood pressure and foot pain. Tr. 209.
prescription for Metoprolol. Id.

Dr. Webb refilled Vernarec’s

It was noted that Vernarec’s blood

pressure was 130/86.17 Tr. 208.
On October 28, 2004, Vernarec had an appointment with Dr.
Webb. Tr. 206.

At that appointment Vernarec complained of a knee

injury and requested a prescription for Darvocet.18 Id.
noted that Vernarec’s left knee was swollen. Tr. 207.
ordered an MRI and prescribed Darvocet. Id.

Dr. Webb
Dr. Webb

Dr. Webb also in the

notes of this appointment stated that Vernarec “owns [a] Pizza
shop.” Tr. 206.
On December 3, 2004, Vernarec had an appointment with Jose
Nazar, M.D. Tr. 216.

Dr. Nazar in the treatment notes states as

follows: “Patient was sent to this office by Dr. Biancarelli with a

17. A website of the National Institute of Health reveals that
blood pressure of 120/80 is normal blood pressure; blood pressure
between 120/80 and 139/89 is prehypertension; and blood pressure
of 140/90 or higher is high blood pressure. High Blood Pressure,
MedlinePlus, http://www.nlm.nih.gov/medlineplus/highbloodpressure
.html (Last accessed September 6, 2011).
18. Darvocet, a combination of propoxyphene and acetaminophen, is
a narcotic pain reliever. Darvocet, Drugs.com, http://www.drugs.
com/darvocet.html (Last accessed September 6, 2011).
13

history of pain at the level of the left knee for several months.
He was on a dock at a lake and twisted his knee and had pain and
discomfort.

It has slowly been getting better.” Id.

Dr. Nazar’s

examination of Vernarec’s knee revealed that Vernarec had full range
of motion of the left knee and no evidence of phlebitis.19 Id.

An

x-ray of the left knee was negative for fractures or dislocations.
Id.

Dr. Nazar prescribed Vicodin and advised him to perform range

of motion exercises. Id.
On December 7, 2004, Vernarec had an MRI of the left knee
which revealed “small to moderate joint effusion and oblique tear of
the posterior horn of the medial meniscus.” Tr. 220.
On January 10, 2005, Vernarec had an appointment with Dr.
Nazar. Tr. 215.

Dr. Nazar’s notes of that appointment state as

follows: “Patient is here today for follow up and discussion of the
MRI, which is positive for a tear of the posterior horn of the
medial meniscus. . . . Due to the fact that he has not improved, I
will schedule him for left knee arthroscopy . . . .” Id.
On March 8, 2005, Vernarec underwent surgery (left knee
arthroscopy with meniscectomy) performed by Dr. Nazar for a left
knee meniscus tear.

Tr. 210.

On March 11, 2005, Vernarec had a follow-up appointment

19. Phlebitis is “inflamation of a vein. The condition is marked
by infiltration of the coats of the vein and the formation of a
thrombus. The disease is attended by edema, stiffness, and pain
in the affected part[.]” Dorland’s Illustrated Medical
Dictionary, 1279 (27th Ed. 1988).
14

with Dr. Nazar who stated that “[t]here are no signs of active
bleeding or infection. There is no evidence of phlebitis.
retrieved the stitches today.

We

He will continue with the same

protocol. He will return to this office for follow up in six weeks,
sooner if any problems.” Tr.

214.

Vernarec had an appointment with Dr. Nazar on April 22,
2005. Tr. 214.

According to Dr. Nazar’s notes Vernarec was “doing

quite all right, although he still has some pain and discomfort, and
a locking sensation with flexion and extension. Overall he is doing
fine.” Id.

Dr. Nazar observed “no signs of effusion” and “no

evidence of phlebitis.” Id.

Dr. Nazar gave Vernarec a prescription

for Vicodin.20 Id.
On July 22, 2005, Vernarec had an appointment with Dr.
Nazar. Tr. 213.

The notes of that appointment state that Vernarec

“is doing much better and has less pain and discomfort.
pain and discomfort at the level of the lumbar spine.
Vicodin with some relief of the symptoms.” Id.

He now has
He is taking

Dr. Nazar gave

Vernarec a prescription for Vicodin and scheduled a follow-up
appointment in six weeks.

Id.

A separate treatment note dated July 22, 2005, states:
“Incisions were healed [illegible] Takes Vicodin for back pain[.]
Starts work in N.C. on Monday.” Tr. 214.

20. Vicodin, a combination of acetaminophen and hydrocodone, is a
narcotic pain reliever. Vicodin, Drugs.com, http://www.drugs.com
/vicodin.html (Last accessed September 6, 2011).
15

In a treatment record dated January 9, 2006,

Dr. Nazar or

a nurse working for Dr. Nazar stated that Vernarec was “doing
alright . . . but not perfect [complains of] soreness in am [and]
locking sensation. Will be starting work [at] Taylor. Needs DPW
reassessment done.” Tr. 212.

In a separate note Dr. Nazar stated as

follows: “Today for follow up of right knee arthroscopy, doing
better, less pain and discomfort, has good range of motion, no
evidence of effusion, Lachman and MacMurray test negative, no signs
of phlebitis.

I will discharge this patient to return to this

office for follow up in 6 weeks, sooner if any problems.” Id.
On April 6, 2006, Vernarec had an appointment with his
primary care physician Constance M. Sweet, M.D. Tr. 251-252.

At

that appointment Vernarec complained of pain, swelling and stiffness
in the knees and back pain. Id.

A physical examination of Vernarec

revealed essentially normal findings21 except that his blood
pressure was 142/92 and his knees were tender but without swelling.
Id.

Dr. Sweet concluded that Vernarec suffered from back and knee

pain and prescribed the drug Percocet,22 and considered ordering an
MRI of the lumbar spine, physical therapy and referral to Dr. Nazar

21. Dr. Sweet’s treatment notes were set forth on a medical form
that provided that a “T” mark would equal a normal finding and
an “X” would equal an abnormal finding. There were no “Xs” on
the form.
22. Percocet, a combination of oxycodone and acetaminophen, is a
narcotic pain reliever. Percocet, Drugs.com, http://www.drugs.
com/percocet.html (Last accessed September 6, 2011).
16

for injections. Id.

Dr. Sweet also noted that Vernarec suffered

from high blood pressure and Vernarec’s blood pressure should be
monitored. Id.
On May 1, 2006, Vernarec had an appointment with Dr. Sweet
at which Vernarec complained of back and knee pain. Tr. 253.

He had

no new complaints and it was noted that his high blood pressure and
back pain were stable. Id.

A physical examination reveal

essentially normal findings except his blood pressure was 142/86.
Id.

Dr. Sweet prescribed Metoprolol for Vernarec’s high blood

pressure. Id.
On June 8, 2006, Vernarec had an appointment with Dr.
Sweet regarding his knees and back. Tr. 255.

Vernarec complained

about tingling and numbness in his right hand and painful knees. Id.
Vernarec stated he was using 5 to 6 Percocet per day. Id.

A

physical examination revealed essentially normal findings. Id.
Vernarec’s blood pressure was 112/86. Id.

Dr. Sweet’s assessment

was that Vernarec suffered from chronic low back pain and noted that
Vernarec “needs reevaluation - MRI etc.” Id.

She further stated

that a “contract for narcs was signed.”23
Id.
On June 12, 2006, Dr. Sweet wrote the following on a
prescription slip: “David is not employable currently due to

23. This was a document signed by Vernarec in which he stated,
inter alia, that he would not abuse the prescription drugs and
only take the medications as prescribed. Tr. 271.
17

multiple problems.” Tr. 276.
On July 7, 2006, Vernarec had an appointment with Dr.
Sweet at which he stated Percocet was helping a lot and he was able
to function at a limited level with minimum pain but any increase in
activity caused an increase in pain. Tr. 256.

Physical examination

findings were essentially normal except he had an unspecified
decrease in range of motion of the back and back spasms. Id.
Vernarec’s blood pressure was 110/70. Id.

Vernarec told Dr. Sweet

that he was unable to get an MRI and X-rays because he had no
insurance.

Dr. Sweet’s assessment was that Vernarec suffered from

chronic low back pain. Id.

Dr. Sweet stated that an MRI would be

scheduled as soon as Vernarec’s medical assistance was approved. Id.
Dr. Sweet continued Vernarec’s prescriptions for Percocet and
Metoprolol. Id.
Also, on July 7, 2006, Dr. Sweet completed a form entitled
“Pennsylvania Department of Public Welfare Employability Assessment
Form.” Tr. 223-224.

In that form Dr. Sweet stated that Vernarec was

permanently disabled because of low back pain, knee arthritis and
high blood pressure.

Id.

Dr. Sweet did not complete a statement of

Vernarec’s functional abilities.24

24. Such statements generally include, inter alia, information
regarding an individual’s ability to lift, carry, walk, stand,
sit, climb, stoop, kneel, crawl, push and pull with the upper and
lower extremities, work at heights and around moving machinery,
engage in fine and gross manipulation with hands, and be exposed
to heat, cold, fumes, dust and other environmental elements.
18

On August 15, 2006, Vernarec had an appointment with Dr.
Sweet at which he stated he had fair control of his low back pain
with Percocet. Tr. 257.

He also stated that his medical assistance

was approved and he would like to get back on Paxil25 and Xanax for
anxiety. Id.

Physical examination findings were normal. Id.

Vernarec’s blood pressure was 120/70. Id.

Dr. Sweet’s assessment

was that Vernarec suffered from low back pain and she continued him
on Percocet, ordered an MRI, and prescribed Paxil for depression and
anxiety. Id.
On September 5, 2006, Vernarec had an appointment with Dr.
Sweet at which Vernarec stated he was “going back to work next
week.” Tr. 258.

Physical examination findings were normal. Id.

Vernarec’s blood pressure was 110/60. Id.

Dr. Sweet assessment was

that Vernarec suffered from chronic back pain and noted that
Vernarec could not get an MRI because Vernarec was starting a job.
Id.

Dr. Sweet continued Vernarec’s prescription for Percocet and

noted that Vernarec’s high blood pressure was stable. Id.
Also, on September 5, 2006, Vernarec was examined by Ihab
Dana, M.D., on behalf of the Bureau of Disability Determination. Tr.
227-231.

Dr. Dana observed that Vernarec was able to sit, bend,

walk, and lift and had a normal gait, station, deep tendon reflexes,
and ranges of motion except for flexion and extension of his knee

25. Paxil is drug used to treat, inter alia, depression and
anxiety. Paxil, Drugs.com, http://www.drugs.com/paxil.html (Last
accessed September 6, 2011).
19

and hip. Tr. 228.
On October 2, 2006, Vernarec had an appointment with Dr.
Sweet at which he told Dr. Sweet that he went back to work, he has
stiffness and pain in the morning, and he uses 4 to 5 Percocet per
day for pain control. Tr. 259.
normal. Id.

Physical examination findings were

Dr. Sweet’s assessment was that Vernarec suffered from

back pain and anxiety and continued Vernarec’s prescription for
Anaprox,26 Percocet and Xanax, and started Vernarec on Flexeril.27
Id.
On October 6, 2006, Mark Bohn, M.D., a physician with the
Bureau of Disability Determination, reviewed the medical records and
concluded that Vernarec could perform a limited range of light work.
Tr. 232-237.

Specifically, Dr. Bohn stated that Vernarec could

occasionally lift and/or carry 20 pounds and frequently 10 pounds;
Vernarec could stand and/or walk about 6 hours in an 8-hour workday;
Vernarec could sit about 6 hours in an 8-hour workday; Vernarec was
limited in his ability to push and/or pull with his lower
extremities because of decreased range of motion; Vernarec could
occasionally stoop, kneel, crouch, crawl and climb stairs and

26. Anaprox (also know as Aleve), a nonsteroidal anti-inflammatory
drug, is used to treat pain and inflammation. Anaprox, Drugs.com,
http://www.drugs.com/mtm/anaprox.html (Last accessed September 6,
2011).
27. Flexeril, a muscle relaxant, is used, inter alia, to treat
pain. Flexeril, Drugs.com, http://www.drugs.com/flexeril.html
(Last accessed September 6, 2011).
20

frequently use ramps but he could never climb ladders, ropes or
scaffolds; Vernarec had no manipulative, visual, and communicative
limitations; and Vernarec should avoid concentrated exposure to
extreme temperatures, fumes, odors, dusts, gases, poor ventilation,
and hazards. Id.

Dr. Bohn stated that the evidence establishes

medically determinable impairments of degenerative joint disease of
the knees and lumbosacral spine, high blood pressure and depression.
Tr. 237.

Dr. Bohn further noted that Vernarec did not attend

physical therapy, did not require an assistive device to ambulate,
and had no difficulty ambulating as observed by field office
personnel who interviewed him.

Id.

On October 30, 2006, Vernarec had an appointment with Dr.
Sweet at which Vernarec stated he was still working, that he slipped
on a poll the previous week and wrenched his back and that he was
working 6 days per week with shorter daylight. Tr. 260.

He also

stated that his anxiety was “Ok” with Xanax. Id.

Physical

examination finding were essentially normal. Id.

His blood pressure

was 130/86 which is a slightly elevated reading. Id.

Vernarec was

assessed as suffering from back pain and anxiety. Id.

He was

continued on the drugs Percocet, Anaprox and Xanax. Id.
On November 27, 2006, Vernarec had an appointment with Dr.
Sweet at which Vernarec stated he had knee and back pain but that he
“climbs polls for a living” and he was using 6 Percocet per day and
that his anxiety and spasms were stable. Tr. 261.

21

Physical

examination findings were essentially normal. Id.
pressure was 122/88. Id.

His blood

Vernarec was assessed as suffering from

chronic back and leg pain. Id.

He was continued on the drug

Percocet Id.
On December 26, 2006, Vernarec had an appointment with Dr.
Sweet “for monthly chronic pain visit.”

Tr. 262.

No abnormal

physical examination finding were noted except his blood pressure
was slightly elevated at 130/90. Id.

He was assessed as suffering

from “chronic pain” and continued on Percocet. Id.

It was also

noted Vernarec had “some mild depression.” Id.
On February 8, 2007, Vernarec had an appointment with Dr.
Sweet for a respiratory infection. Tr. 263.

It was noted by Dr.

Sweet that Vernarec needed a “return to work slip.” Id.

The only

abnormal physical examination findings related to his respiratory
infection. Id.

Vernarec was diagnosed with “Bronchitis/Sinusitis”

and prescribed Biaxin, an antibiotic. Id.
On March 19, 2007, Vernarec had an appointment with Dr.
Sweet for chronic pain management and monthly medication review. Tr.
264.

At that appointment Vernarec stated he was working out of

town, he needed an increased dose of medication because of an
injury, and he had no new problems. Id.
revealed normal findings. Id.

A physical examination

Dr. Sweet’s assessment was that

Vernarec suffered from chronic pain and continued Vernarec’s
prescription for Percocet and considered starting Vernarec on

22

Oxycontin. Id.
On April 19, 2007, Vernarec had an appointment with Dr.
Sweet for chronic pain management. Tr. 265.

At that appointment

Vernarec stated that he just lost his job and that he was taking 7
Percocet per day and was “not sure he [could decrease] soon.” Id.
Physical examination findings were essentially normal. Id.
blood pressure was 124/82. Id.

His

Dr. Sweet’s assessment was that

Vernarec was suffering from chronic back and knee pain. Id. Dr.
Sweet decreased his dosage of Percocet to 5 per day but noted she
would consider increasing the dosage to 6 to 8 per day if he
returned to work. Id.
On May 17, 2007, Vernarec had an appointment with Dr.
Sweet for chronic pain management. Tr. 266.

At that appointment

Vernarec stated that he got a new job, he was still having a hard
time with his knees, he was taking 5 Percocet tablets per day and he
need an increase to 6 Percocet tablets per day because of his work.
Id.

Physical examination findings were essentially normal. Id.

blood pressure was 138/72.

Id.

His

Dr. Sweet’s assessment was that

Vernarec suffered from knee pain and increased his dosage of
Percocet to 6 per day. Id.
On June 11, 2007, Vernarec had an appointment with Dr.
Sweet for chronic pain management and regarding his anxiety. Tr.
267.

Physical examination findings were normal.

pressure was 116/78. Id.

Id.

His blood

Dr. Sweet’s assessment was that Vernarec

23

suffered from chronic back and knee pain and anxiety. Id.

She

prescribed Percocet and Xanax. Id.
On August 8, 2007, Vernarec had an appointment with Dr.
Webb. Tr. 348-351.

Prior to this appointment the last time Vernarec

had an appointment with Dr. Webb was on November 28, 2004.

Dr.

Webb’s notes of this appointment state that Vernarec was complaining
of “chronic low back pain and knee pain . . . He has had knee pain
and back pain and says his back pain is about 99% of his problem. .
. He is going to start a new job on Monday of this week.” Tr. 350.
Dr. Webb’s physical examination findings were essentially normal.
Vernarec’s blood pressure was 130/84; nothing abnormal was observed
about Vernarec’s head, neck, chest, abdomen, cardiovascular system,
respiratory system, and ears, nose and throat; Vernarec’s back was
nontender, he was able to do straight leg raises to 80 to 90 degrees
bilaterally28 and he had full range of motion in hips bilaterally;
Vernarec reflexes were essentially normal (“2+ bilaterally”);
and Vernarec’s “knees moved well with no obvious lesions.” Tr. 348351.

Dr. Webb discussed with Vernarec his need to stop taking

Percocet “because it [was] too strong for him.”

Tr. 248-250.

Dr.

28. 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 September 6, 2011).
24

Webb discontinued his prescription for Percocet and prescribed
Vicodin.

Tr. 351.29
On October 29, 2007, Vernarec had an appointment with Dr.

Webb for a medication review. Tr. 277-278 and 352-353.

Vernarec

told Dr. Webb that he did not like taking Vicodin because it upset
his stomach and preferred Percocet because it controlled his pain
enough to allow him to work.

Dr. Webb’s physical examination

findings at this appointment were essentially normal except Vernarec
blood pressure was 146/80 and he had some tenderness to palpation in
the lumbosacral region of the spine. Tr. 352.

Dr. Webb had a long

discussion with Vernarec about the use of pain medication. Tr. 353.
He told Vernarec that he could not continue “just giv[ing] him pain
medicines without any evaluation” but did give him a prescription
for Percocet “to take one, four times a day.” Id.
On November 20, 2007, Dr. Webb told Vernarec that he had
to obtain an evaluation of his back or he could not continue on pain
medications. Tr. 357.

Physical examination findings on November 20,

2007, were essentially normal except Vernarec’s blood pressure was
140/92 and he had tenderness in the lumbosacral region of the spine.
Id.

Also, at an appointment on December 20, 2007, physical

examination findings were essentially normal except Vernarec had

29. Dr. Webb’s treatment notes are extremely confusing because
there is also a record of an appointment on September 26, 2007,
that is essentially the same as the August 8, 2007, appointment
report. Tr. 354-355.
25

tenderness in the lumbosacral region of the spine.

Tr. 360.

On January 10, 2008, Vernarec had an MRI of the lumbar
spine which revealed degenerative spondylosis at the L5-S1 level of
the spine. Tr. 279.

The MRI did not reveal evidence of spinal

stenosis, neural compression, focal disc herniation or other
abnormality. Id.
On January 21, 2008, Vernarec had an appointment with Dr.
Webb regarding his low back pain.

Tr. 280.

The “after visit

summary” of this appointment reveals that the diagnosis was
lumbosacral spondylosis without myelopathy,30 high blood pressure,
and “unspecified backache.”

Id.

to neurosurgery for evaluation.

Vernarec was referred by Dr. Webb
Id.

Dr. Webb prescribed Percocet

and discontinued Vernarec’s prescription for Xanax. Id.

Dr. Webb

noted that Percocet was “not [a] long term [treatment] for
[Vernarec].” Tr. 364.
On February 20, 2008, Vernarec had a follow-up appointment
with Dr. Webb at which he voiced no new complaints.

Tr. 365-366.

Vernarec reported that he had been drinking the night before. Id.
Vernarec’s blood pressure was 154/100. Id.

Physical examination

findings were essentially normal except for Vernarec’s blood
pressure and some tenderness in the lumbosacral region of the spine.

30. Myelopathy is “a general term denoting functional disturbances
and/or pathological changes in the spinal cord; the term is often
used to designated nonspecific lesions, in contrast to
inflammatory lesions (myelitis).” Dorland’s Illustrated Medical
Dictionary, 1088 (27th Ed. 1988).
26

Id.
On February 27, 2008, LaRue Montayne, D.Ed., a licensed
psychologist, performed a consultative psychological evaluation of
Vernarec on behalf of the Bureau of Disability Determination. Tr.
281-285.

Vernarec reported that he had attempted suicide in 2002

and again “2 days ago.” Tr. 282.

With regard to the recent suicide

attempt, Vernarec claimed he consumed 50 Xanax,31 refused treatment
by emergency personnel and refused to be taken to the hospital in an
ambulance. Id.

He told Dr. Montayne that the suicide attempt “was

just something to do.” Id.
suicide. Id.

Vernarec denied current ideas of

Dr. Montayne stated that Vernarec suffered from Major

Depressive Disorder; Vernarec’s ability to understand, remember and
carry out instructions was not affected by his mental impairment;
Vernarec could interact appropriately with the public and
supervisors; Vernarec had a slight limitation in his ability to
interact appropriately with coworkers, a marked limitation in his
ability to respond appropriately to work pressures in a usual work
setting, and a moderate limitation in his ability to respond
appropriately to changes in a routine work setting.

Tr. 282 and

285.
On March 3, 2008, John N. Grutkowski, Ph.D., a state
agency psychologist, reviewed the medical records and concluded that

31. This allegations appears to be inconsistent with Dr. Webb
discontinuing Vernarec prescription for Xanax on January 21,
2008.
27

Vernarec suffered from Major Depressive Disorder; Vernarec
impairment did not meet or equal the requirements of a listed mental
health impairment; Vernarec was not significantly limited in his
ability to understand and remember locations and work-like
procedures and simple and detailed instructions; Vernarec was not
significantly limited in his ability to carry out simple
instructions, maintain attention and concentration for extended
periods, maintain a schedule and regular attendance, sustain an
ordinary routine without special supervision, work in coordination
with others without being distracted by them, and make simple workrelated decisions; and Vernarec was markedly limited in his ability
to carry out detailed instructions.

Tr. 289, 296 and 299.

Dr.

Grutkowski concluded that Vernarec is “able to meet the basic mental
demands of competitive work on a sustained basis despite the
limitations resulting from his impairment.” Tr. 301.
On March 19, 2008, Vernarec had an appointment with Dr.
Webb at which he voiced no new complaints. Tr. 368-369.

Physical

examination findings were essentially normal except Vernarec’s blood
pressure was 132/84 and he had tenderness in the lumbosacral region
of the spine.

Id.

On or about March 24, 2008, Vernarec was treated for
contusions of the face and head sustained when someone hit him with
a 2 by 4. Tr. 371-373.

There is no indication there were lasting

injuries from this assault because at an appointment on April 17,

28

2008, Vernarec only complained about low back pain. Tr. 375.
On April 7, 2008, R. Craig Nielsen, M.D., performed a
consultative examination of Vernarec on behalf of the Bureau of
Disability Determination. Tr. 302-309.

Vernarec told Dr. Nielsen

that “[h]e lives with his fiancé in their son’s trailer now.

Smokes

two packs of cigarettes a day. . . drinks beer a six-pack every few
days . . . [has] a history of being an alcoholic . . . .” Tr. 304.
Dr. Nielsen’s physical examination of Vernarec was essentially
normal. Tr. 304-305.

Dr. Nielsen observed that Vernarec’s gait was

normal; he walked without an assistive device; he readily got on and
off the examination table and in and out of a chair; he could
readily squat and get up from squatting; he could heel and toe walk;
and he had no problems sitting, bending, standing, lifting,
grasping, or walking. Tr. 305.

Dr. Nielsen also observed that

Vernarec’s light touch sensation was intact, a motor examination was
normal, deep tendon reflexes were normal and equal, straight leg
raise testing was negative, and there was no atrophy. Id.

Vernarec

had full range of motion in his spine, shoulders, elbows, wrists,
knees, hips, and ankles. Tr. 308-309.
his knees. Tr. 305.

He had no pain or effusion in

Dr. Nielsen found that Vernarec could

occasionally lift and/or carry 25 pounds; Vernarec had no
limitations sitting and pushing and pulling; Vernarec could
occasionally bend, kneel, stoop, crouch, balance, and climb; and
Vernarec should not be around moving machinery.

29

Tr. 306-307.

On April 18, 2008, Vernarec had an x-ray of the lumbar
spine which revealed “some minimal degenerative changes [] in the
posterior articulating facets at L4-5 and L5-S1.” Tr. 327.
On or about April 20, 2008, Vernarec attempted suicide by
slitting his left wrist with a pocketknife. Tr. 333.

Vernarec was

transported by ambulance to the emergency department at Robert
Packer Hospital, Sayre, Pennsylvania. Id.

An outpatient emergency

record dated April 29, 2008, notes some of the circumstances
surrounding this suicide attempt as follows:
The patient is a 42-year-old male who states that
around 6:00 p.m. tonight he began drinking. He states
he had four beers. He became depressed and took 50
Xanax tablets of 1 mg each and 50 Toprol-XL tablets
of 50 mg each. He denies taking Paxil but had some
brought with him to the Emergency Department. He also
states that he took out a pocketknife and cut his left
wrist. He denies taking any additional medications
or attempting to harm himself in any other way. He
denies any falls. He denies hitting his head or having
any loss of consciousness, nausea, vomiting, neck pain,
back pain, chest pain, shortness of breath, abdominal
pain, or pain in his extremities other than the
laceration site.
Tr. 333.

Another medical record from Robert Packer Hospital dated

April 21, 2008, states in part as follows:
Patient . . . states that his intention was to kill
himself, but he is glad he is not deceased . . . He
further tells me that he has been feeling depressed
since 2001 when his wife divorced him. He had four
overdose attempts in the past. For the last four
years, he has been using illicit drugs, particularly
Oxycontin, Percocet, cocaine, alcohol, and on 4/20/
2008 patient used 2 grams of cocaine, #60 pills of
OxyContin or Percocet. He took two fentanyl patches.
He dissolved the material in water and then shot it in
his vein. He smokes three packs per day. He feels
30

helpless and has no control over his drug use. . .
Both the patient and his girlfriend are prescribed
Percocet and OxyContin, and they use it
interchangeably. There are times when they both
run out of medication. They go through withdrawal
until they find OxyContin pills on the street where
they have spent $1000 to get #20 pills to abort with
withdrawal.
Tr. 335.

The laceration on Vernarec’s wrist was shallow and 4

centimeters in length. Tr. 332.

A Blood test taken at the hospital

at the time of admission revealed that his blood alcohol level was
.099 percent, slightly over the legal limit. Tr. 342.

Testing of

his urine revealed the presence of cocaine. Tr. 338.
Vernarec was admitted to the Intensive Care Unit for close
monitoring and observation. Tr. 332.

His Global Assessment of

Functioning (GAF) score at the time of admission to the ICU was
25.32

Tr. 336.

He stayed at the hospital until April 28, 2008, at

32. The GAF score allows a clinician to indicate his judgment of a
person’s overall psychological, social and occupational
functioning, in order to assess the person’s mental health
illness. Diagnostic and Statistical Manual of Mental Disorders
3–32 (4th ed. 1994). A GAF score is set within a particular range
if either the symptom severity or the level of functioning falls
within that range. Id. The score is useful in planning treatment
and predicting outcomes. Id. A GAF score of 21-30 represents
behavior considerably influenced by delusions or hallucinations
or serious impairment in communication or judgment or inability
to function in almost all areas. A GAF score of 31-40 represents
some impairment in reality testing or communication or major
impairment in several areas, such as work or school, family
relations, judgment, thinking or mood. Id. A GAF score of 41-50
indicates serious symptoms or any serious impairment in social,
occupational or school functioning. Id. A GAF score of 51 to 60
represents moderate symptoms or any moderate difficulty in
social, occupational, or school functioning. Id. A GAF score of
61 to 70 represents some mild symptoms or some difficulty in
social, occupational, or school functioning, but generally
31

which time he was discharged and transferred to Cove Forge
Behavioral Health System, Williamsburg, Pennsylvania, for inpatient
rehabilitation. Tr. 346.

At the time of his discharge from the

hospital, his discharge diagnosis was substance-induced mood
disorder; substance withdrawal, particularly opiate withdrawal;
polysubstance dependence; major depressive disorder, severe,
recurrent without psychotic features; and dysthymic disorder. Tr.
330.

His Global Assessment of Functioning (GAF) score at the time

of discharge was 40.

Id.

On May 12, 2008, Vernarec was discharged from Cove Forge
Behavioral System after successfully complet[ing] all [of] their
treatment plans and goals.”

Tr. 343.

On May 19, 2008, Vernarec had an appointment with Dr. Webb
complaining of a respiratory infection. Tr. 377.

Physical

examination findings were essentially normal except Vernarec’s blood
pressure was 140/62 and he had occasional rhonchi33 when breathing.
Tr. 378-379.

Dr. Webb noted that Vernarec had normal range of

motion in his neck and musculoskeletal system. Id.

The notes of

this appointment also indicate that Vernarec was drinking “48 Can(s)

functioning pretty well with some meaningful interpersonal
relationships. Id.
33. A website of the National Institute of Health describes
rhonchi as “sounds that resemble snoring. They occur when air is
blocked or becomes rough through the large airways.” Breath
Sounds, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency
/article/003323.htm (Last accessed September 8, 2011).
32

of beer per week, occasional 4 12 pks.” Id.

34

Dr. Webb’s

assessment was that Vernarec was suffering from acute bronchitis,
high blood pressure and lumbosacral spondylosis without myelopathy.
Id.
On May 21, 2008, Vernarec was evaluated at Northern Tier
Counseling and given a GAF score of 52. Tr. 417.

The evaluator

could not rule out a diagnosis of depression, not otherwise
specified or a mood disorder. Id.

A mental status examination

revealed normal findings. Tr. 418.

It was noted that his motivation

for treatment was “poor” and he might be engaging in “possible drug
seeking” behavior. Tr. 418 and 420.

With respect to Vernarec’s

physical health it was stated that he had moderate functional
impairments. Tr. 419.
A document prepared by Northern Tier Counseling on June
16, 2008, indicates that Vernarec’s was suffering from a depressed
mood and anxiety, he had a GAF score of 45 and he should attend
counseling sessions 3 days per week. Tr. 421.

The psychiatric

diagnosis code was 292.89 which represents a substance induced

34. Venarec testified at the administrative hearing that the
medical record should have said 4 to 8 beers per week. Tr. 56.
However, he did not explain the “occasional 4 12 pks” notation.
However, the report also states alcohol use “28.8 oz/wk” which is
inconsistent with 48 cans of beer per week. Dr. Webb has this
notation in virtually every subsequent report of a medical
appointment with Vernarec. Vernarec told Dr. Nielsen on April 7,
2008, that he drank a 6-pack of beer every few days. Tr. 304.
33

disorder.35 Id.
On June 18, 2008, Vernarec had an appointment with Dr.
Webb at which he requested that Dr. Webb increase his dose of
Percocet and write him a prescription for Xanax. Tr. 380.

Physical

examination findings were essentially normal except Vernarec’s blood
pressure was 132/86 and he had tenderness to palpation in the
lumbosacral region of the spine. Tr. 381-382.

Dr. Webb’s assessment

was that Vernarec was suffering from “unspecified backache” and high
blood pressure. Id.

Dr. Webb stated that he would not change

Vernarec’s medications until Vernarec consulted with a neurosurgeon.
Id.
On July 9, 2008, Vernarec had an appointment with Erik M.
Gregorie, M.D., a neurosurgeon. Tr. 383-384.

Dr. Gregorie’s report

of that consultation states in pertinent part as follows:
At present Mr. Vernarec is unemployed. He smokes 1 ½
packs of cigarettes a day and has done so for 25 years.
He notes he does not consume alcohol. This is in marked
contrast to the note contained in a progress note by Dr.
Paul Webb on 6/18/2008. In that note it is listed
that he consumes approximately 48 cans of beer per
week.
*

*

*

*

*

*

*

*

*

*

*

The patient appears to be in no acute distress. . . .
Station and gait are normal. Muscle strength is normal
in both arms and legs. Motor tone is normal in
both upper and lower extremities.

35. Diagnostic and Statistical Manual of Mental Disorders 19 (4th
ed., Text Revision, 2000).

34

NEUROLOGICAL: Oriented to time, place and person.
Memory appears to be grossly intact. Language function
appears to be normal with normal receptive
and motor speech function.
*

*

*

*

*

*

*

*

*

*

*

Radiology: MRI of the lumbar spine shows a degree of
lumbar spondylosis. The most marked change is at the L5S1 disc. There are lesser changes at L4-L5 and
L2-L3. There is no central canal stenosis. There is
no spondylolithesis.36 The neural foramina37 at all levels
are relatively well preserved.
IMPRESSION: I told Mr. Vernarec I would not recommend
consideration for surgery. At the present time has
arthritic change in the lumbar spine but no
surgical lesions. I gave him a referral for Physical

36. “The word spondylolisthesis derives from two parts - spondylo
which means spine, and listhesis which means slippage. So, a
spondylolisthesis is a forward slip of one vertebra (i.e., one of
the 33 bones of the spinal column) relative to another.
Spondylolisthesis usually occurs towards the base of your spine
in the lumbar area. . . Spondylolisthesis can be described
according to its degree of severity. One commonly used
description grades spondylolisthesis, with grade 1 being least
advanced, and grade 5 being most advanced. The spondylolisthesis
is graded by measuring how much of a vertebral body has slipped
forward over the body beneath it.” Spineuniverse.com,
Spondylolisthesis: Back Condition and Treatment, http://www.
spineuniverse.com/conditions/spondylolisthesis/spondylolisthesisback-condition-treatment (Last accessed September 8, 2011). Grad
1 spondylolithesis is where up to 25% of the vertebral body has
slipped forward over the vertebral body beneath it. Id. Symptoms
of this condition include pain in the lower back, pain and
weakness in one or both legs, and an altered gait. Id. Some
people who have this condition exhibit no symptoms. Id.

37. The neural foramen is “the space through which nerve roots
exit the spinal canal . . . Each foramen is a bony canal formed
superiorly and inferiorly by the pedicles of two adjacent
vertebrae[.]” Neural foramen, Medcyclopaedia, http://www.
medcyclopaedia.com/library/topics/volume_vi_1/n/neural_foramen.as
px (Last accessed September 8, 2011).
35

Therapy. I have asked him to follow up with Dr. Webb
for consideration for use of anti-inflammatory
medications. I told Mr. Vernarec that the Percocet he
is taking is something that is not a long-term solution
and he will certainly at some time in the future need
to be weaned from this medication.
Id.
On July 17,

2008, Vernarec had an appointment with Dr.

Webb complaining of back pain. Tr. 454.

Physical examination

findings were essentially normal except Vernarec’s blood pressure
was 144/94 and he had tenderness in the lumbosacral region of the
spine. Tr. 454-455.

Dr. Webb’s assessment was that Vernarec

suffered from lumbosacral spondylosis without myelopathy, high blood
pressure and “unspecified backache.” Id.

Dr. Webb had a long

discussion with Vernarec about the need for physical therapy and to
get off Percocet. Id.

He also discussed “vocational training” with

Vernarec. Id.
On August 19, 2008, Vernarec had an appointment with Dr.
Webb at which Vernarec complained of back pain. Tr. 452.

Dr. Webb

had a long discussion with Vernarec regarding his failure to go to
counseling. Id.

Vernarec told Dr. Webb that he had some depression

but no suicidal ideations and no hallucinations. Id.

Physical

examination findings were essentially normal except Vernarec’s blood
pressure was 140/90 and he had tenderness in the lumbosacral region
of the spine. Id.

Dr. Webb’s assessment was that Vernarec suffered

from lumbosacral spondylosis without myelopathy, high blood pressure
and depression. Id.
36

On September 17, 2008, Vernarec had an appointment with
Dr. Webb complaining of back and joint pain, depression and a
painful left knee after stacking wood. Tr. 449.

Vernarec requested

a prescription for Xanax which was denied by Dr. Webb.

Id.

Physical examination findings were essentially normal except
Vernarec’s blood pressure was 140/82 and he exhibited tenderness in
the lumbar region of the spine. Id.

Dr. Webb’s assessment was that

Vernarec suffered from lumbosacral spondylosis without myelopathy,
high blood pressure and depression.

Tr. 450.

On October 15, 2008, Vernarec had an appointment with Dr.
Webb at which he requested an increase in the dosage of Percocet.
Tr. 445.

Physical examination findings were essentially normal

except Vernarec’s blood pressure was 136/90 and he exhibited
decreased range of motion in the knees and tenderness in the lumbar
region of the spine. Tr. 447.

Dr. Webb’s assessment was that

Vernarec suffered from “unspecified backache,” lumbosacral
spondylosis without myelopathy, high blood pressure, and depression.
Id.

Dr. Webb referred Vernarec to physical therapy and refused to

increase the dosage of Percocet. Id.
On October 23, 2008, Vernarec visited the emergency
department at Robert Packer Hospital, Sayre, Pennyslvania.,
reporting that he had suicidal thoughts but no plan. Tr. 385.

He

had an odor of alcohol on his breath and he claimed that he had been
taking Nyquil which contains alcohol. Id.

37

His blood alcohol level

was .033 which is below the legal limit. Id.

Vernarec was referred

to crisis management. Id.
On November 17, 2008, Vernarec had an appointment with Dr.
Webb at which he complained of back pain and depression. Tr. 441442.
Id.

Vernarec told Dr. Webb he had not been attending counseling.
Other than some tenderness in the lumbar region of the spine

physical examination findings were essentially normal. Tr. 443.
blood pressure was 124/76. Id.

His

Dr. Webb noted that he “[a]ctually

looks better today.” Tr. 444.
On December 17, 2008, Vernarec had an appointment with Dr.
Webb at which he complained of back pain. Tr. 440.

At that

appointment he admitted he never went to physical therapy as Dr.
Gregorie recommended and that he was not in counseling but was
“doing okay.” Id.

He stated he was not drinking alcohol. Id.

Physical examination findings were essentially normal. Id.
blood pressure was 128/72. Id.

His

Dr. Webb’s assessment was that

Vernarec was suffering from lumbosacral spondylosis without
myelopathy, depression, high blood pressure and tobacco abuse.

Id.

Vernarec stated he would try physical therapy. Tr. 441.
On January 16, 2009, Vernarec had an appointment with Dr.
Webb at which Vernarec stated his back pain was the same and he
voiced no new concerns. Tr. 435 and 437.
not go to physical therapy. Tr. 437.

It was noted Vernarec did

Physical examination findings

were normal except Vernarec’s blood pressure was 152/86 and he

38

exhibited tenderness in the lumbar region of the spine. Id.

Dr.

Webb’s assessment was that Vernarec was suffering from lumbosacral
spondylosis without myelopathy, depression, high blood pressure and
tobacco abuse.

Tr. 438.

On February 16, 2009, Vernarec had an appointment with Dr.
Webb at which Vernarec stated his back pain was the same and he
voiced no new concerns.
depressed.

Tr.

434.

Tr. 433.

He also stated he was not

Physical examination findings were normal

except Vernarec’s blood pressure was 150/86.

Tr. 434.

Dr. Webb’s

assessment was that Vernarec was suffering from lumbosacral
spondylosis without myelopathy, depression and high blood pressure.
Tr. 435.
On March 2, 2009, Vernarec visited the emergency
department at Robert Packer Hospital “complaining of feeling
increasing depression.”

Tr. 390.

He stated that he had “not been

taking his medications,” that he felt “hopeless” and was thinking
about “stabbing himself.” Id.

Physical examination findings were

essentially normal except his blood pressure was 159/100. Id.
Vernarec was admitted to the hospital for observation. Id.

Steven

Cohen, D.O., a psychiatrist who examined Vernarec after admission
noted the following: “He has a very extensive substance abuse
history, which includes needle use for methamphetamine and also
cocaine abuse.

His last usage of these hard drugs, he reports was

about one year ago . . . He also admits to having a problem with

39

alcohol but states not currently; however notes in the chart
indicate that he is still drinking excessively and his drug screen
was positive for benzodiazepines.” Tr. 391.

Mental status

examination findings by Dr. Cohen were normal. Id.

Dr. Cohen’s

impression was that Vernarec suffered from a mood disorder, a
history of polysubstance abuse and could not rule out bipolar
disorder. Tr. 392.

Dr. Cohen gave Vernarec a GAF score of 30 and

admitted him to the psychiatric unit. Id.

Dr. Cohen discharged

Vernarec on March 6, 2009, with a final diagnosis of mood disorder,
alcohol abuse and a history of polysubstance abuse.

Tr. 393-394.

At the time of discharge Dr. Cohen’s mental status findings of
Vernarec were normal38 and he gave Vernarec a GAF score of 58 to 60.
Tr. 394.
On March 18, 2009, Vernarec had an appointment with Dr.
Webb complaining of back pain Tr. 430.

Physical examination

findings were essentially normal except Vernarec’s blood pressure
was 142/88 and he exhibited tenderness in the lumbar region of the
spine. Tr. 432.

Dr. Webb’s assessment was that Vernarec was

38. Dr. Cohen stated that Vernarec “was alert and oriented times
three and not confused. His memory was intact for recent and
remote events. His hygiene was good. He was pleasant and
cooperative. He made good eye contact. His speech was
spontaneous. It was normal in rate and tone. His mood was
euthymic. His affect was appropriate. There were no suicidal
thoughts. His thoughts were organized. There were no auditory
or visual halucinations. No paranoid delusions. His judgment,
insight, and intellectual capacity were adequate and assets were
that he was motivated for aftercare.” Tr. 393.
40

suffering from “unspecified backache,” lumbosacral spondylosis
without myelopathy, and high blood pressure. Tr. 432.

Vernarec was

directed to attend counseling for depression at Northern Tier
Counseling. Id.
On April 17, 2009, Vernarec had an appointment with Dr.
Webb at which he complained of back pain and requested a refill of
his prescription for Percocet. Tr. 428-429.

Physical examination

findings were essentially normal except Vernarec’s blood pressure
was 124/90. Tr. 429-430.

Dr. Webb’s assessment was that Vernarec

was suffering from “unspecified backache,” depression and high blood
pressure.

Tr. 430.

Dr. Webb made no change in Vernarec’s

medications and stated Webb was “doing okay.” Id.

It was noted that

Vernarec had not attended counseling at Northern Tier Counseling.
Tr. 428.
On May 18, 2009, Vernarec had an appointment with Dr. Webb
at which Vernarec stated that his depression was better when he was
not lounging around the house and that he was “helping an old lady
around her farm” and she was “getting him out to do stuff.
He further stated that his backache was the same. Id.

Tr. 425.

Physical

examination findings were essentially normal except Vernarec’s blood
pressure was 140/84 and he had tenderness in the lumbosacral region
of the spine. Tr.

427.

Dr. Webb’s assessment was that Vernarec was

suffering from “unspecified backache,” depression and high blood
pressure.

Tr. 427.

41

The last medical appointment of which there is a record of
in the transcript of the administrative proceedings occurred on
June 12, 2009.

On that date Vernarec had an appointment with Dr.

Webb regarding his back pain. Tr. 423-425.

Physical examination

findings were essentially normal except Vernarec’s blood pressure
was 144/90 and he had tenderness in the lumbosacral region of the
spine. Id.

Dr. Webb’s assessment was that Vernarec was suffering

from “unspecified backache” and depression. Id.

Dr. Webb stated

that he would not issue scripts for medications until July 10, 2009,
because Vernarec took extra pills. Id.

DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Vernarec did not engage in substantial
gainful work activity from February 2005 through August 2006 and
from July 1, 2007, through the date of his decision. Tr. 16.

The

administrative law judge did find that Vernarec had a one-month
unsuccessful work attempt (January 2005) and that Vernarec did
engage in substantial gainful activity from September 2006 through
June 2007. Tr. 15.
At step two of the sequential evaluation process, the
administrative law judge found that Vernarec had the following
severe impairments: degenerative spondylosis, knee pain, major
depressive disorder and an anxiety-related disorder. Tr. 16.

42

The

administrative law judge concluded that Vernarec’s high blood
pressure was a non-severe impairment because there was no evidence
it caused any functional limitations.

Id.

At step three of the sequential evaluation process the
administrative law judge found that Vernarec’s impairments did not
individually or in combination meet or equal a listed impairment. Tr.
16-18.
At step four of the sequential evaluation process the
administrative law judge found that Vernarec could not perform his
past relevant skilled, medium work as a cable installer but that
Vernarec had the residual functional capacity to perform a limited
range of unskilled, light work. Tr. 18 and 22.

Specifically, the

administrative law judge found that Vernarec could perform light work
where he could
sit or stand on a self-directed basis. The claimant
is limited to occupations permitting nor more than
occasional operation of foot controls due to lower
extremity limitations. Similarly, the claimant should
no more than occasionally be required to ascend ladders,
ropes, scaffolds, ramps, stairs, or engage in postural
activities such as balancing, stooping, crouching,
crawling, or kneeling. The claimant should not be in
occupations requiring anything more than moderate
exposure to hazards such as moving machinery, motor
vehicles, automotive equipment, and unprotected heights.
Lastly, the claimant should not be engaged in occupations
that include repeated or persistent contact with the
general public and should only be in a predictable
stable setting with few workplace changes, limited
requirements for the exercise of independent judgment
or decision making, and involving only simple matters
free of complex written instructions and characterized
by a clear regiment of work activity.

43

Tr. 18.
At step five, the administrative law judge based on a
residual functional capacity of a limited range of light work as
described above and the testimony of a vocational expert found that
Vernarec had the ability to perform work as a trimmer, assembler and
tagger, and that there were a significant number of such jobs in the
Northeastern region of Pennsylvania. Tr. 23.
The administrative record in this case is 473 pages in
length, primarily consisting of medical and vocational records.
Vernarec’s primary argument is that the administrative law judge
erred by failing to accept the opinions of Dr. Sweet and other
treating physicians.39
No treating physician has provided a functional assessment
of Vernarec indicating that Vernarec is unable to perform any type
of work.

In fact there are four functional assessments in the

39. Vernarec also argues that (1) the administrative law judge
failed to appropriately develop the record and (2) the
administrative law judge failed to address properly Vernarec’s
work history. These arguments lack merit. The administrative
law judge adequately developed the record. Vernarec has not
pointed to or proffered any additional medical evidence. As for
failing to address Vernarec’s work history, evidence of
Vernarec’s work history was presented prior to and during the
administrative hearing and we are confident that the
administrative law judge was well-aware of it. To the extent
that the administrative law judge did not specifically comment on
Vernarec’s work history in his decision when assessing Vernarec’s
credibility, we find this omission harmless in light of the
medical evidence and because the administrative law judge agreed
with Vernarec that he could not perform his prior skilled, medium
work as a cable installer.
44

record which reveal that Vernarec has the ability to engage in at
least a limited range of light work.

Those functional assessments

were addressed in detail in our review of the medical records.

The

opinions of Dr. Dana, Dr. Bohn, Dr. Grutkowski, and Dr. Nielson
support the administrative law judge’s conclusion that Vernarec can
perform a limited range of light work.
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).
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

45

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.

20 C.F.R. § 404.1508 (2007).

In this case the

administrative law judge appropriately considered the contrary
medical opinions of Dr. Dana, Dr. Bohn, Dr. Grutkowski, and Dr.
Nielson and the objective medical evidence and concluded that the
conclusory opinion of Dr. Sweet set forth in the Department of
Public Welfare form was not adequately supported by objective
medical evidence consisting of signs, symptoms and laboratory
findings.

The administrative law judge gave an adequate explanation

for rejecting the opinion of Dr. Sweet.

Furthermore, there were no

other treating physicians who provided functional assessments which
conflicted with the residual functional capacity set by the
administrative law judge in his decision of August 10, 2009.
In addition to appropriately considering Vernarec’s
physical limitations, the administrative law judge appropriately
took into account Vernarec’s mental limitations in his residual
functional capacity assessment.

The administrative law judge

limited Vernarec to work of a simple, predictable nature with few

46

workplace changes and which did not involve persistent contact with
the general public.

Also, as previously stated, Dr. Grutkowski

stated that Vernarec was “able to meet the basic mental demands of
competitive work on a sustained basis despite the limitations
resulting from his impairment.” Tr. 301.
Our review of the administrative record reveals that the
decision of the Commissioner is supported by substantial evidence.
We will, therefore, pursuant to 42 U.S.C. § 405(g) affirm the

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

S/ James M. Munley
JAMES M. MUNLEY
United States District Judge

Dated: September 8, 2011

47

48

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DAVID VERNAREC,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

No. 4:10-CV-1275
(Complaint Filed 6/18/10)

(Judge Munley)

ORDER
In accordance with the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1.

The Clerk of Court shall enter judgment in favor of

the Commissioner and against David P. Vernarec as set forth in the
following paragraph.
2.

The decision of the Commissioner of Social Security

denying David P. Vernarec disability insurance benefits and
supplemental security income benefits is affirmed.
3.

The Clerk of Court shall close this case.

s/ James M. Munley
JAMES M. MUNLEY
United States District Judge
Dated: September 8, 2011
49