Marshall v. Astrue

Filing 12

MEMORANDUM AND ORDER: 1. The Clerk of Court shall enter judgment infavor of the Commissioner and against Stephanie Marshall as set forth in the following paragraph. The decision of the Commissioner of SocialSecurity denying Stephanie Marshall supplementalsecurity income benefits is affirmed. 3. The Clerk of Court shall close this case.Signed by Honorable Sylvia H. Rambo on 11/22/11. (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHANIE MARSHALL,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 4:10-CV-1978

(Judge Rambo)

MEMORANDUM AND ORDER
Background
The captioned action seeks a review of the
decision of the Commissioner of Social Security
("Commissioner") denying Plaintiff Stephanie Marshall’s
claim for supplemental security income benefits.

For

the reasons set forth below we will affirm the decision
of the Commissioner.
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.

Marshall was born in the United States on
February 3, 1958. Tr. 26, 42 and 89-90.1

Marshall

completed the 11th grade in 1976 and can read, write,
speak and understand English. Tr. 26, 113 and 119. There
is no indication that Marshall, after withdrawing from
high school, obtained a General Equivalency Diploma. Id.
At some point prior to 1980 Marshall obtained a
commercial driver’s license. Tr. 27 and 109.

From 1980

to 1989 Marshall reported that she worked as a school
bus driver 8 hours per day, 5 days per week, and earned
$9.00 per hour. Tr. 109.

From 1990 to 1995 Marshall

reported that she operated two video stores. Tr. 28 and
110.

Marshall stated that she worked at the video

stores 8 hours per day, 5 days per week and earned
$300.00 per week. Id.

Marshall also stated that she

“was the president” of the video stores and she
“order[ed] the tapes and rotate[d] the walls and put out
product.”

Id. at 28.

References to “Tr.___” are to pages of the
administrative record filed by the Defendant as part of
his Answer on December 6, 2010.

1.

2

Although Marshall testified that she last worked
at the video store in 1995, records of the Social
Security Administration only reveal earnings for the
years 1974, 1975 and 1980 through 1985. Tr. 28 and 98.
Her total earnings for those years were $17,821.30.2 Tr.
98.

Marshall testified with respect to her earnings

from the video stores that her “accountant never
declared it.” Tr. 28.

There was no explanation given

for the absence of reported earnings for the years 1986
through 1989 when she worked as a school bus driver.
Marshall has not worked since January 1, 1995.3 Tr. 114.
On September 8, 2008, Marshall protectively
filed4 an application for supplemental security income
benefits. Tr. 9, 42, 89, 90-96 and 104.

Marshall

Marshall earned $91.35 in 1974, $266.06 in 1975,
$394.20 in 1980, $1940.86 in 1981, $5340.31 in 1982,
$5748.88 in 1983, $3919.64 in 1984 and $120.00 in 1985.
Tr. 98.

2.

Marshall testified that she last worked in “1995
when [she] was raped.” Tr. 28.

3.

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.

4.

3

claimed that she became disabled on January 1, 2000,
because of anxiety, depression, and stomach and heart
problems. Tr. 43 and 114.

In the present appeal she

claims that she is totally disabled because of major
depressive disorder, recurrent; posttraumatic stress
disorder; panic disorder with agoraphobia;5
hypertension; kyphoscoliosis;6 and osteoarthritis. (Doc.
8, Pl.’s Brief, p. 2.)

According to the National Institute of Health’s
website

5.

[p]anic disorder with agoraphobia is an anxiety
disorder in which there are repeated attacks of
intense fear and anxiety, and a fear of being in
places where escape might be difficult, or where
help might not be available.
Agoraphobia usually involves fear of crowds,
bridges, or of being outside alone.
Panic disorder with agoraphobia, PubMed Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001921/
(Last accessed November 8, 2011).

Kyphoscoliosis is a “backward and lateral curvature
of the spinal column.” Dorland’s Illustrated Medical
Dictionary, 886 (27th Ed. 1988). A person with this
condition has a lateral hunchback appearance.

6.

4

Marshall’s alleged disability onset date of
January 1, 2000, has no impact on Marshall’s application
for supplemental security income benefits because
supplemental security income is a needs based program
and benefits may not be paid for “any period that
precedes the first month following the date on which an
application is filed or, if later, the first month
following the date all conditions for eligibility are
met.”

See C.F.R. § 416.501.

Consequently, Marshall is

not eligible for SSI benefits for any period prior to
October 1, 2008.
On February 10, 2009, the Bureau of Disability
Determination7 denied Marshall’s application. Tr. 43-47.
On March 14, 2009, Marshall requested a hearing before
an administrative law judge. Tr. 48 and 102.

After

approximately 10 months had passed a hearing was held
before an administrative law judge on January 20, 2010.
Tr. 22-41.

On February 4, 2010, the administrative law

The Bureau of Disability Determination is an
agency of the Commonwealth of Pennsylvania which
initially evaluates applications for supplemental
security income benefits on behalf of the Social
Security Administration. Tr. 44.

7.

5

judge issued a decision denying Marshall’s application
for benefits. Tr. 9-19.

On April 7, 2010, Marshall

filed a request for review of the administrative law
judge’s decision with the Appeals Council of the Social
Security Administration. Tr. 87-88.

The Appeals Council

on September 9, 2010, concluded that there was no basis
upon which to grant Marshall’s request for review. Tr.
1-5.

Thus, the administrative law judge’s decision

stood as the final decision of the Commissioner.
On September 22, 2010, Marshall filed a
complaint in this court requesting that we reverse the
decision of the Commissioner and award her benefits, or
remand the case to the Commissioner for further
proceedings.
The Commissioner filed an answer to the
complaint and a copy of the administrative record on
December 6, 2010.

Marshall filed her brief on January

18, 2011, and the Commissioner filed his brief on March
24, 2011.

The appeal8 became ripe for disposition on

Under the Local Rules of Court “[a] civil action
brought to review a decision of the Social Security

8.

(continued...)
6

April 11, 2011, when Marshall 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

(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

8.

(...continued)

Administration denying a claim for social security
disability benefits” is “adjudicated as an appeal.”
M.D.Pa. Local Rule 83.40.1.
7

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 scintilla of evidence but less than a
preponderance.

Brown, 845 F.2d at 1213.
8

In an

adequately developed factual record substantial evidence
may be "something less than the weight of the evidence,
and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence." Consolo v. Federal Maritime
Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in
relationship to all the other evidence in the record,"
Cotter, 642 F.2d at 706, and "must take into account
whatever in the record fairly detracts from its weight."
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
(1971).

A single piece of evidence is not substantial

evidence if the Commissioner ignores countervailing
evidence or fails to resolve a conflict created by the
evidence.

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
9

Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407
(3d Cir. 1979).
SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff
must demonstrate an “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or 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).
10

The Commissioner utilizes a five-step process in
evaluating supplemental security income claims.
C.F.R. § 416.920; Poulos, 474 F.3d at 91-92.

See 20

This

process requires the Commissioner to consider, in
sequence, whether a claimant (1) is engaging in
substantial gainful activity,9 (2) has an impairment
that is severe or a combination of impairments that is
severe,10 (3) has an impairment or combination of
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. § 416.910.

9.

The determination of whether a claimant has any
severe impairments, at step two of the sequential
evaluation process, is a threshold test. 20 C.F.R. §
416.920(c). If a claimant has no impairment or
combination of impairments which significantly limits
the claimant’s physical or mental abilities to perform
basic work activities, the claimant is “not disabled”
and the evaluation process ends at step two. Id. If a
claimant has any severe impairments, the evaluation
process continues. 20 C.F.R. § 416.920(d)-(g).
Furthermore, all medically determinable impairments,
severe and non-severe, are considered in the subsequent
steps of the sequential evaluation process. 20 C.F.R.
§§ 416.923 and 416.945(a)(2). An impairment

10.

(continued...)
11

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

As part of step four the

administrative law judge must determine the claimant’s
residual functional capacity.12 Id.

10.

(...continued)

significantly limits a claimant’s physical or mental
abilities when its effect on the claimant to perform
basic work activities is more than slight or minimal.
Basic work activities include the ability to walk,
stand, sit, lift, carry, push, pull, reach, climb,
crawl, and handle. 20 C.F.R. § 416.945(b). An
individual’s basic mental or non-exertional abilities
include the ability to understand, carry out and
remember simple instructions, and respond appropriately
to supervision, coworkers and work pressures. 20 C.F.R.
§ 416.945(c).
If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment,
the claimant is disabled. If the claimant does not have
an impairment or combination of impairments that meets
or equals a listed impairment, the sequential
evaluation process proceeds to the next step.

11.

If the claimant has the residual functional
capacity to do his or her past relevant work, the
claimant is not disabled.

12.

12

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

See Social Security Ruling 96-8p, 61

Fed. Reg. 34475 (July 2, 1996). A regular and continuing
basis contemplates full-time employment and is defined
as eight hours a day, five days per week or other
similar schedule. The residual functional capacity
assessment must include a discussion of the individual’s
abilities. Id; 20 C.F.R. § 416.945; Hartranft, 181 F.3d
at 359 n.1 (“‘Residual functional capacity’ is defined
as that which an individual is still able to do despite
the limitations caused by his or her impairment(s).”).

MEDICAL RECORDS

13

Before we address the administrative law judge’s
decision and the arguments of counsel, we will review in
detail Marshall’s medical records.13
The first medical record that we encounter is
from 2003.

On July 11, 2003, Marshall had an

appointment with her primary care physician, Mark
Murnin, D.O. Tr. 295-296.

The record of this

appointment is only partially legible.

Dr. Murnin noted

that Marshall weighed 142 pounds, her blood pressure was
110/70 and her pulse was 80; that Marshall was a rape
victim; Marshall was positive (+) for smoking 1 pack of
cigarettes per day for 20 years and she was positive (+)
for alcohol use but negative for drug abuse. Id.

When

At the administrative hearing in this case,
Marshall was represented by counsel and the
administrative law judge asked counsel whether he had
“additional documents he wanted to submit.” Tr. 25.
Counsel indicated there were no further documents he
desired to present. Id. The medical records which we
are reviewing are those admitted at the administrative
hearing held on January 20, 2010. Counsel for Marshall
in the present appeal has not proffered any additional
medical records.
13.

14

Dr. Murnin conducted a review of Marshall’s systems14 he
indicated that she was without15 weakness, fatigue,
chills, fever, night sweats, blurred vision, hearing
loss, tinnitus, vertigo, nasal discharge, sinusitis,
chest pain, shortness of breath cough, wheezing, nausea,
vomiting, diarrhea, constipation, abdominal pain,
melena, hematochezia,16 change in bowel movements,

“The review of systems (or symptoms) is a list of
questions, arranged by organ system, designed to
uncover dysfunction and disease.” A Practical Guide to
Clinical Medicine, University of California, School of
Medicine, San Diego, http://meded.ucsd.edu/clinicalmed
/ros.htm (Last accessed November 8, 2011).

14.

The medical abbreviation used for “without” or
“none” is often a circle with a line vertically or
horizontally through the circle.

15.

Melena is defined as “the passage of dark, pitchy,
and grumous stools stained with blood pigments or with
altered blood” and “black vomit.” Dorland’s Illustrated
Medical Dictionary, 999 (27th Ed. 1988). Hematochezia
is defined as “the passage of bloody stools.” Id. at
741.

16.

15

dysuria, nocturia,17 myalgia, arthralgia,18 back pain,
heat/cold intolerance, hoarseness, weight change,
polyuria, polydipsia, polyphagia,19 weakness and
numbness. Id.

The results of a physical examination

were essentially20 normal except that Dr. Murnin noted

Dysuria is “painful or difficult urination.”
Dorland’s Illustrated Medical Dictionary, 522 (27 th Ed.
1988). Nocturia is “excessive urination at night.” Id.
at 1141.
17.

Myalgia is “pain in a muscle or muscles.” Dorland’s
Illustrated Medical Dictionary, 1083 (27 th Ed. 1988).
Arthralgia is “pain in a joint.” Id. at 147.

18.

Polyuria is “the passage of a large volume of urine
in a given period, a characteristic of diabetes.”
Dorland’s Illustrated Medical Dictionary, 1336 (27 th Ed.
1988). Polydipsia is “chronic excessive thirst, as in
diabetes mellitus or diabetes insipidus.” Id. at 1330.
Polyphagia is “excessive eating; gluttony.” Id. at
1334.
19.

During 2003, 2004, and 2005 Dr. Murnin did note
that Marshall’s extremity pulses were 2/4, a slightly
more diminished pulse than normal. 3/4 is considered
normal. Bookshelf, Chapter 30 Examination of the
Extremities: Pulses, Bruits, and Phlebitis, Clinical
Methods: The History, Physical, and Laboratory
Examinations. 3rd Ed. Walker HK, Hall WD, Hurst JW,
editors. Boston: Butterworths; 1990, http://www.
ncbi.nlm.nih.gov/books/NBK350/ (Last accessed November
7, 2011).

20.

16

that Marshall had positive (+) distress. Id.

The court

is unable to determine Marshall’s chief complaint on
this date or Dr. Murnin’s assessment.

Dr. Murnin did

order blood work (a complete blood count and a complete
metabolic panel). Id.

A laboratory report of blood

drawn on July 11, 2003, revealed that Marshall had high
cholesterol, triglycerides and LDL cholesterol. Tr. 304.
The record of an appointment with Dr. Murnin on
September 11, 2003, is also only partially legible. Tr.
293-294.

We can discern, however, that Dr. Murnin noted

that Marshall weighed 140 pounds, her blood pressure was
120/80 and her pulse 80, and that Marshall had
uncontrolled hypercholesterolemia.21 Id.

It also appears

that on or before this date Marshall had quit smoking
and consuming alcohol. Id.

When Dr. Murnin reviewed

Marshall’s systems, his findings were all negative,
including that Marshall did not suffer from any
myalgias, arthralgias or back pain and she did not
Hypercholesterolemia is “excess of cholesterol in
the blood.” Dorland’s Illustrated Medical Dictionary,
791 (27th Ed. 1988).

21.

17

complain of depression, anxiety, stress or insomnia. Id.
The results of a physical examination were normal. Id.
Dr. Murnin’s assessment and plan of action is only
partially legible. Dr. Murnin concluded that Marshall
suffered from hypertension and hypercholesterolemia. Id.
Dr. Murnin ordered blood work (a complete metabolic
panel) and scheduled a follow-up appointment in three
months. Id.
In 2004 Marshall had appointments with Dr.
Murnin on January 22, May 27, September 30 and December
4.

Again the records of the appointments are only

partially legible.
On January 22, 2004, when Dr. Murnin reviewed
Marshall’s systems, his findings were all negative,
including that Marshall did not suffer from any
myalgias, arthralgias or back pain and she did not
complain of depression, anxiety, stress or insomnia. Tr.
291-292. Id.

The results of a physical examination were

essentially normal. Id.
100/60. Id.

Marshall’s blood pressure was

Dr. Murnin’s assessment and plan of action
18

is only partially legible. Dr. Murnin concluded that
Marshall suffered from hypercholesterolemia. Id.

Dr.

Murnin ordered blood work (a complete blood count, a
complete metabolic panel and a fasting lipid profile).
Id.

The results of the blood work revealed that

Marshall had high cholesterol and high triglycerides.
Tr. 300.
The record of the May 27, 2004, appointment is
similar except under review of systems Dr. Murnin noted
that Marshall suffered from anxiety. Tr. 289-290. The
results of a physical examination were essentially
normal. Id.

Marshall’s blood pressure was 130/80. Id.

The record of the September 30, 2004,
appointment reveals that Marshall’s blood pressure was
under control (110/70) but that she was suffering from
high cholesterol. Tr. 287-288.

The results of a

physical examination were essentially normal. Id.
Murnin ordered blood work. Id.

Dr.

The results of the blood

tests revealed that Marshall had high cholesterol. Tr.
297.
19

The record of the December 4, 2004, appointment
reveals that Marshall’s blood pressure was under control
(120/80) and when Dr. Murnin reviewed Marshall’s
systems, his findings were all negative, including that
Marshall did not suffer from any myalgias, arthralgias
or back pain. Tr. 285-286. The results of a physical
examination were essentially normal. Id.
In 2005 Marshall had appointments with Dr.
Murnin on February 10, June 23, and October 27.

Again

the records of the appointments are only partially
legible.
On February 10, 2005, Marshall’s blood pressure
was 140/80 and when Dr. Murnin reviewed Marshall’s
systems, his findings were all negative, except he noted
Marshall suffered from anxiety and hypercholesterolemia.
Tr. 283-284.

The results of a physical examination were

essentially normal. Id.

Dr. Murnin ordered blood work.

Id.
On June 23, 2005, Marshall’s blood pressure was
110/70 and when Dr. Murnin reviewed Marshall’s systems,
20

his findings were all negative, including that Marshall
did not suffer from any myalgias, arthralgias or back
pain and she did not complain of depression, anxiety,
stress or insomnia. Tr. 281-282.

The results of a

physical examination were essentially normal. Id.

Dr.

Murnin noted that Marshall’s anxiety, high blood
pressure and high cholesterol were under control. Tr.
Tr. 281.
On October 27, 2005, Marshall’s blood pressure
was 140/80 and when Dr. Murnin reviewed Marshall’s
systems, his findings were all negative, including that
Marshall did not suffer from any myalgias, arthralgias
or back pain and she did not complain of depression,
anxiety, stress or insomnia. Tr. 279-280.

The results

of a physical examination were essentially normal. Id.
Dr. Murnin noted that Marshall’s blood pressure was
controlled. Tr. 280.
In 2006, Marshall had appointments with Dr.
Murnin on March 23, July 24 and December 4.

21

The record

of the appointment on March 23 is partially legible and
the other two records are typewritten.
At the appointment on March 23, 2006, Marshall
complained of depression. Tr. 277-278.

When Dr. Murnin

reviewed Marshall’s systems, his findings were all
negative, including that Marshall did not suffer from
any myalgias, arthralgias or back pain, except Marshall
suffered from depression and anxiety. Id.

The results

of a physical examination were essentially normal. Id.
Dr. Murnin concluded that Marshall suffered from
depression and

prescribed the drug Paxil.22 Id.

He also

noted that she had controlled high blood pressure. Id.
At the appointment with Dr. Murnin on July 24,
2006, Marshall complained of heartburn, anxiety and
depression. Tr. 253-254. When Dr. Murnin reviewed
“Paxil (paroxetine) is an antidepressant belonging
to a group of drugs called selective serotonin reuptake
inhibitors (SSRIs). Paxil affects chemicals in the
brain that may become unbalanced. Paxil is used to
treat depression, obsessive-compulsive disorder,
anxiety disorders, posttraumatic stress disorder (PTSD)
and premenstrual dysphoric disorder (PMDD).” Paxil,
Drugs.com, http://www.drugs.com/paxil.html (Last
accessed November 8, 2011).

22.

22

Marshall’s systems, his findings were all negative,
including that Marshall did not suffer from any
myalgias, arthralgias, arthritis, muscle weakness, and
paresthesia. Id.
Id.

Marshall’s blood pressure was 120/80.

The results of a physical examination were

essentially normal. Id.

It was stated that Marshall

walked with a normal gait and she had full range of
motion without discomfort. Id.

Marshall’s motor

strength in the upper and lower extremities bilaterally
was 5/523 and her reflexes were brisk and symmetrical.
Id.

Marshall had intact recent and remote memory. Id.

It appears that Marshall started smoking prior to the
appointment because Dr. Murnin counseled Marshall
regarding smoking cessation. Id.

Dr. Murnin’s

assessment was that Marshall suffered from wellcontrolled high blood pressure, depression, anxiety,
tobacco use disorder and gastroesophageal reflux

5/5 is normal muscle strength. Strength of
Individual Muscle Groups, Neuroexam.com, http://www.
neuroexam.com/neuroexam/content.php?p=29 (Last visited
November 8, 2011).

23.

23

disease. Id.

Dr. Murnin prescribed Dyazide and

Propranolol for Marshall’s high blood pressure, Effexor24
and Valium for her anxiety, and Protonix25 for her
gastroesophageal reflux disease. Id.
At the appointment with Dr. Murnin on December
4, 2006, Marshall complained of an upper respiratory
infection. Tr. 257-259.

Dr. Murnin noted that

Marshall’s anxiety, depression, high blood pressure and
gastroesophageal reflux disease had been well controlled
since the last visit. Id.

It was stated that Marshall

was taking her medications as prescribed and that she
had no difficulty concentrating and had no fatigue. Id.
When Dr. Murnin reviewed Marshall’s systems, his

“Effexor (venlafaxine) is an antidepressant . . .
used to treat major depressive disorder, anxiety, and
panic disorder.” Effexor, Drugs.com, http://www.drugs.
com/effexor.html (Last accessed November 8, 2011).

24.

“Protonix is in a group of drugs called proton pump
inhibitors. It decreases the amound of acid produced in
the stomach. Protonix is used to treat erosive
esophagitis (damage to the esophagus from stomach
acid), and other conditions involving excess stomach
acid[.]” Protonix, Drugs.com, http://www.drugs.com/
protonix.html (Last accessed November 8, 2011).

25.

24

findings were all negative, including that Marshall did
not suffer from any myalgias, arthralgias, arthritis,
muscle weakness, dizziness, headache and paresthesia.26
Marshall did report anxiety but denied depression. Id.
Marshall’s blood pressure was 110/70. Id.

The results

of a physical examination were essentially normal. Id.
It was stated that Marshall walked with a normal gait
and she had full range of motion without discomfort. Id.
Marshall’s motor strength in the upper and lower
extremities bilaterally was 5/5 and her reflexes were
brisk and symmetrical. Id.
and remote memory. Id.

Marshall had intact recent

Marshall’s mood and affect were

normal and she was oriented to person, place and time.
Id.

Dr. Murnin prescribed Dyazide and Propranolol for

Marshall’s high blood pressure, Effexor and Valium for
her anxiety and depression, Chantix for her tobacco use
disorder, Protonix for her gastroesophageal reflux

Paresthesia is a “morbid or perverted sensation; an
abnormal sensation, as burning, prickling, formication,
etc.” Dorland’s Illustrated Medical Dictionary, 1232
(27th Ed. 1988).

26.

25

disease and Levaquin, an antibiotic, for her upper
respiratory infection. Id.
On or about December 14, 2006, Marshall suffered
an injury to her left hand. Tr. 159-160.

However, an

x-ray revealed no abnormal soft tissue swelling and no
fracture or other lesion. Id.
In 2007, Marshall had appointments with Dr.
Murnin on April 30 and September 17.

The records of

these appointments are typewritten.
On April 30, 2007, Marshall complained of an
upper respiratory infection. Tr. 260-261. It was stated
that Marshall’s high blood pressure, gastroesophageal
reflux disease, and anxiety were well controlled since
the last visit and Marshall was taking her medications
as prescribed. However, as for Marshall’s depression it
was noted that it had been “worsening since the last
visit” because Marshall was “not taking [her] prescribed
medication.” Id.

When Dr. Murnin reviewed Marshall’s

systems, his findings were all negative, including that
Marshall did not suffer from any myalgias, arthralgias,
26

muscle weakness, dizziness, headache and paresthesia.
Id.

Marshall did report anxiety and depression. Id.

Marshall’s blood pressure was 130/80. Id.

The results

of a physical examination were essentially normal. Id.
It was stated that Marshall walked with a normal gait
and she had full range of motion without discomfort. Id.
Marshall’s motor strength in the upper and lower
extremities was normal. Id.

Marshall’s mood and affect

were normal and she was oriented to person, place and
time. Id.

Dr. Murnin noted that Marshall smoked one

pack of cigarettes daily and occasionally consumed
alcohol. Id.
On September 17, 2007, Marshall complained of an
upper respiratory infection. Tr. 263-265.

The findings

by Dr. Murnin on that date were similar to those found
on April 30, 2007.

It was stated that Marshall’s high

blood pressure, gastroesophageal reflux disease, and
anxiety were well controlled since the last visit and
Marshall was taking her medications as prescribed.
However, as for Marshall’s depression it was noted that
27

it had been “worsening since the last visit” because
Marshall was “not taking [her] prescribed medication.”
Id.

When Dr. Murnin reviewed Marshall’s systems, his

findings were all negative, including that Marshall did
not suffer from any myalgias, arthralgias,

muscle

weakness, dizziness, headache and paresthesia. Id.
Marshall did report anxiety and depression. Id.
Marshall’s blood pressure was 116/68. Id.

The results

of a physical examination were essentially normal. Id.
It was stated that Marshall walked with a normal gait
and she had full range of motion without discomfort. Id.
Marshall’s motor strength in the upper and lower
extremities was normal. Id.

Marshall’s mood and affect

were normal and she was oriented to person, place and
time. Id.

Dr. Murnin advised Marshall to quit smoking.

Id.
In 2008, Marshall had four appointments with Dr.
Murnin.
266-268.

The first appointment was May 22, 2008. Tr.
The chief complaint at that appointment was

right knee pain and a urinary tract infection. Id.
28

A

review of Marshall’s systems was essentially normal. Id.
Marshall did report “not feeling well.” Id.
blood pressure was normal (120/80). Id.

Marshall’s

The results of

physical examination were essentially normal. Id.
Marshall walked with a normal gait and she had full
range of motion without discomfort. Id.

Marshall’s

motor strength in the upper and lower extremities was
normal. Id.

Marshall’s mood and affect were normal and

she was oriented to person, place and time. Id.

Dr.

Murnin’s assessment was that Marshall suffered from a
urinary tract infection and prescribed the antibiotic
Cipro. Tr. 267.
On June 23, 2008, Marshall was transported by
ambulance to the emergency department at Wayne Memorial
Hospital, Honesdale, Pennsylvania. Tr. 172-175 and 193.
Marshall’s chief complaint was chest pain which started
on June 22, 2008. Tr. 172.

Marshall admitted she was

“abusing alcohol recently with the passing of her
mother.”

Tr. 167.

Other than symptoms relating to the

chest pain, the results of a physical examination were
29

normal. Tr. 204-205.

Marshall’s blood pressure was

normal (114/75). Tr. 163.

Numerous diagnostic tests

were ordered, including a chest x-ray, EKG and complete
blood count and chemistry. Tr. 173 and 193-200.
Marshall had elevated liver function blood tests
(alanine aminotransferase (ALT) and aspartate
aminotransferase (AST)).27 Tr. 169.

Marshall was

discharge from the hospital the same day in a stable
condition with a diagnosis of hyponatremia,28 vomiting,
and non-cardiac chest pain. Tr. 193. Marshall refused to
have an ultrasound of the gallbladder. Tr. 168.
On June 25, 2008, Marshall had an appointment
with Dr. Murnin regarding the chest pain and vomiting
ALT and AST are enzymes which are normally
contained within liver cells. If the liver is injured,
damaged or infected, the liver cells spill these
enzymes into the blood. Liver Blood Test,
MedicineNet.com, http://www.medicinenet.com/liver_
blood_tests/article.htm (Last accessed November 7,
2011).

27.

Hyponatremia is “a condition that occurs when the
level of sodium in your blood is abnormally low.”
Hyponatremia, Definition, Mayo Clinic staff, http://www
.mayoclinic.com/health/hyponatremia/DS00974 (Last
accessed November 7, 2011).

28.

30

that occurred on June 23rd. Tr. 269-270.

Marshall at

this appointment stated that she felt “somewhat better.”
Id.

When Dr. Murnin reviewed Marshall’s systems, his

findings were all negative, including that Marshall
denied anxiety, depression, fatigue, feeling weak, chest
discomfort and pain, cough, shortness of breath and
musculoskeletal symptoms. Id.
was normal (120/80). Id.

Marshall’s blood pressure

The results of physical

examination were essentially normal. Tr. 269. Marshall
walked with a normal gait and she had full range of
motion without discomfort. Id.

Marshall’s motor

strength in the upper and lower extremities was normal.
Id.

Marshall’s mood and affect were normal and she was

oriented to person, place and time. Id.

Dr. Murnin

ordered additional blood tests and an ultrasound of the
abdomen and scheduled a follow-up appointment. Tr. 270.
The ultrasound dated June 26, 2008, revealed “[n]o acute
intraabdominal findings” and a “[n]ormal gallbladder.”
Tr. 212.

31

On July 2, 2008, Marshall had a follow-up
appointment with Dr. Murnin. Tr. 273-274. At this
appointment Marshall complained of abdominal pain. Id.
Dr. Murnin noted that Marshall was smoking one pack of
cigarettes per day and “consum[ing] alcohol – apparent
heavy use at least at times reported by area [agency] of
aging[.] Mrs. Marshall admits to only occasional use.”
Id.

The results of a physical examination were

essentially normal. Tr. 274. Marshall did have “mild
tenderness in the epigastric region” of the abdomen.29
Id.
Dr. Murnin’s assessment was that Marshall was suffering
from a peptic ulcer without hemorrhage, perforation, or
obstruction and advised Marshall to avoid greasy, spicy
and fatty foods. Id.

Dr. Murnin continued Marshall’s

prescription for Protonix and scheduled a follow-up
appointment. Id.

The epigastric region is the upper central region
of the abdomen. Upper Central Abdominal Pain,
Abdopain.com, http://www.abdopain.com/upper-central
-abdominal-pain.html (Last accessed November 8, 2011).

29.

32

On July 23, 2008, Marshall had an appointment
with Dr. Murnin. Tr. 275-276. At that appointment it was
noted that Marshall’s gastroesophageal reflux disease
was uncontrolled. Id.
normal (120/70). Id.

Marshall’s blood pressure was
The results of physical

examination were essentially normal. Id.

Dr. Murnin’s

assessment was that Marshall suffered from
gastroesophageal reflux disease, prescribed Raglan30 and
referred Marshall to a gastroenterologist to have an
esophagogastroduodenoscopy (EGD). Id.
On or about July 28, 2008, Marshall had an
appointment with David D. Reynold, M.D., Northeastern
Gastroenterology Associates, P.C., Honesdale. Tr. 220223. Dr. Reynolds in the opening paragraph of his report
states that Marshall after recently losing her mother

“Raglan (metoclopramide) increases muscle
contractions in the upper digestive tract. This speeds
up the rate at which the stomach empties into the
intestines. Raglan is used short-term to treat
heartburn caused by gastroesophageal reflux in people
who have used other medications without relief of
symptoms.” Raglan, Drugs.com, http://www.drugs.com
/raglan.html (Last accessed November 8, 2011).

30.

33

“began abusing herself and drinking alcohol excessively”
and “she is a chronic smoker.” Tr. 220. It was noted
that she smoked two packs of cigarettes per day. Tr.
221.

Marshall described “chest pain which seem atypical

in nature and likely consistent with gastroesophageal
reflux.” Tr. 221.

The results of a physical examination

were essentially normal. Tr. 222.

Dr. Reynolds did note

that Marshall had “evident kyphoscoliosis.” Id.

Dr.

Reynold’s assessment was that Marshall suffered from
“mid-epigastric abdominal pain associated with atypical
chest pain” and recommended an upper endoscopic
examination.

Tr. 223.

On August 1, 2008, Dr. Reynolds

performed that procedure. Tr. 215.

The endoscope

revealed reflux esophagitis and chronic gastritis
without hemorrhage.31 Tr. 216.
Reflux esophagitis is an inflammation of the lining
of the esophagus caused by the migration of stomach
acid upward to the esophagus. Reflux Esophagitis,
Drugs.com, http://www.drugs.com/cg/reflux
-esophagitis.html (Last accessed November 8, 2011).
Gastritis is an inflammation of the lining of the
stomach. Gastritis, MedlinePlus, http://www.nlm.nih.gov
/medlineplus/ency/article/001150.htm (Last accessed

31.

(continued...)
34

On January 2, 2009, Darlene Nalesnik, Ph.D., a
clinical psychologist, performed a consultative
psychological evaluation of Marshall on behalf of the
Bureau of Disability Determination. Tr. 224-228.

At

that evaluation Marshall denied any drug or alcohol use
or abuse. Tr. 225.

Marshall described daily depression

with a current level of 9 on a scale of 1 to 10. Tr.
226.

Marshall expressed suicidal ideations but no

intention or plan. Id.

Marshall had a blunted affect

and mood was anxious and depressed. Id.

Marshall stated

she had daily fatigue and described attention and
concentration, and short-term memory problems at home.
Id.

Dr. Nalesnik’s assessment was that Marshall

suffered from major depressive disorder, recurrent;
posttraumatic stress disorder; and panic disorder with
agoraphobia. Tr. 227.

Dr. Nalesnik noted that the

results of her evaluation appeared to be consistent with
psychiatric problems that would interfere with

31.

(...continued)

November 8, 2011).
35

Marshall’s ability to function. Tr. 228. Dr. Nalesnik
gave Marshall a referral number for intensive
psychological case management; however, Marshall
declined to call the 24-hour hotline because it was “too
impersonal.” Tr. 227.
On January 9, 2009, Dennis Gold, Ph.D., a state
agency psychological consultant, reviewed the record,
including Dr. Nalesnik’s report, and concluded that
Marshall had a major depressive disorder, panic disorder
with agoraphobia, and posttraumatic stress disorder,
which caused, at most, moderate limitations and did not
meet or equal any listed impairment. Tr. 233-245. Dr.
Gold opined that Marshall retained the ability to meet
the basic mental demands of competitive work on a
sustained basis despite the limitations caused by her
impairments. Tr. 231. In arriving at his opinion, Dr.
Gold gave Dr. Nalesnik’s report great weight. Tr. 231.
On January 14, 2009, Marshall had an appointment
with Dr. Murnin regarding her anxiety. Tr. 250.

The

report of this appointment indicates that Marshall’s
36

gastroesophageal reflux disease and high blood pressure
were well controlled since her last visit. Id.

It was

also noted that Marshall suffered from no medication
side effects. Id.

When Dr. Murnin reviewed Marshall’s

systems his findings were all negative except Marshall
did report with regard to her musculoskeletal system
arthalgias, limitations of movement, swelling and
tenderness and with regard to her mental status she
report anxiety. Id.

Marshall’s blood pressure was

normal (118/78). Tr. 251.

The results of a physical

examination were essentially normal, including that
Marshall walked with a normal gait and had full range of
motion with no discomfort. Id.

Marshall did have some

pain at the base of the right thumb. Id.
Dr. Murnin’s neurological and mental status examination
of Marshall was normal. Id.

Marshall was cooperative,

her mood and affect were normal and she was oriented to
person, place and time. Id.
On May 29, 2009, Marshall had a follow-up
appointment with Dr. Murnin regarding her anxiety and
37

osteoarthritis. Tr. 247-249. Dr. Murnin noted that
Marshall’s anxiety “had been mostly controlled since
last visit.”

Id.

Marshall denied depression and panic

attacks. Id.

It was noted that Marshall’s

osteoarthritis (pain in the thumb) was “mostly well
controlled since last visit” and she had no medication
side effects. Id.

Marshall’s gastroesophageal reflux

disease was “mostly well controlled.” Id.

Also, Dr.

Murnin stated that Marshall’s high blood pressure was
well controlled. Id.

The results of a physical

examination were essentially normal. Tr. 248. Marshall
walked with a normal gait and had full range of motion
without discomfort. Id.

Marshall had normal strength in

the upper and lower extremities. Id.
The last medical records reviewed relate to an
injury to Marshall’s wrists in late 2009. Tr. 316-329.
On November 7, 2009, Marshall fell while walking her dog
and injured both wrists. Id.

X-rays and a physical

examination revealed a right wrist fracture and left
wrist sprain. By late December 2009, Marshall had
38

reduced swelling and pain and improved finger motion in
the right wrist and decreased pain in the left wrist. Xrays of the right wrist on December 21, 2009, revealed a
healed fracture, anatomic alignment, and no degenerative
changes. Tr. 324.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Marshall had
not engaged in substantial gainful work activity since
September 8, 2008, the date her application for
supplemental security income benefits was filed. Tr. 11.
At step two of the sequential evaluation
process, the administrative law judge found that
Marshall had the following severe impairments: high
blood pressure, osteoarthritis, major depressive
disorder, posttraumatic stress disorder, panic disorder
with agoraphobia, and alcohol abuse. Tr. 11.
administrative law judge found that Marshall’s

39

The

gastroesophageal reflux disease and wrist injuries were
non-severe impairments.32

Tr. 12.

At step three of the sequential evaluation
process the administrative law judge found that
Marshall’s impairments did not individually or in
combination meet or equal a listed impairment. Tr. 15.
At step four of the sequential evaluation
process the administrative law judge found that Marshall
had “the residual functional capacity to perform light
work” with certain limitations. Tr. 14.

Marshall could

never climb ladders, ropes or scaffolds; she had to
avoid hazards such as heights and machinery; she was
limited to understanding and remembering no more than
An impairment is “severe” if it significantly
limits an individuals ability to perform basic work
activities. 20 C.F.R. § 404.1521. Basic work
activities are the abilities and aptitudes necessary to
do most jobs, such as walking, standing, sitting,
lifting, pushing, seeing, hearing, speaking, and
remembering. Id.
An impairment or combination of
impairments is “not severe” when medical and other
evidence establish only a slight abnormality or a
combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability
to work. 20 C.F.R. § 416.921; Social Security Rulings
85-28, 96-3p and 96-4p.
32.

40

simple instructions involving routine, repetitive tasks
in a stable work environment; she could only make simple
decisions and carry out very short, simple instructions
involving little independent decision making; and she
could only have occasional interaction with the public.
Tr. 14.

Marshall could perform repetitive task without

constant supervision. Id.
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 Marshall had the ability to
perform work as a garment bagger, bakery worker on a
conveyer line, and a night cleaner, and that there were
a significant number of such jobs in the regional and
national economies. Tr. 18.
The administrative record in this case is 329
pages in length, which the court has fully reviewed.
The administrative law judge did a thorough

job of

reviewing Marshall’s vocational history and medical
records in his decision. Tr. 11-19.
41

Furthermore, the

brief submitted by the Commissioner sufficiently reviews
the medical and vocational evidence in this case. (Doc.
11, Def.’s Br. in Support.)

Marshall makes a rather

general argument that the administrative law judge’s
decision is not supported by substantial evidence33 and
that the administrative law judge failed to consider
appropriately the medical records and
testimony and credibility.

Marshall’s

The court finds Marshall’s

arguments to be without merit.
Initially it should be stated that no treating
physician has provided a functional assessment of
Marshall indicating that she is unable to perform for
the requisite 12-month statutory period the limited
range of light work found by the administrative law
judge.

In this case the administrative law judge

appropriately relied on the opinion of Dr. Gold in

M.D. Pa. Local Rule 83.40.4(b) states in part that
“[a] general argument that the findings of the
administrative law judge are not supported by
substantial evidence is not sufficient.”

33.

42

finding that Marshall had the mental ability to engage
in full-time employment on a sustained basis.34
The administrative law judge stated that
Marshall’s statements concerning the intensity,
persistence and limiting effects of her symptoms were
not credible to the extent that they were inconsistent
with the ability to perform a limited range of light
work. Tr. 15.

The administrative law judge was not

required to accept Marshall’s claims regarding her
limitations. See Van Horn v. Schweiker, 717 F.2d 871,
873 (3d Cir. 1983)(providing that credibility
determinations as to a claimant’s testimony regarding
the claimant’s limitations are for the administrative
law judge to make).

It is well-established that “an

[administrative law judge’s] findings based on the
Marshall does not contest the administrative law
judge’s evaluation of her physical impairments or
physical residual functional capacity, i.e., she
retained the ability to perform a limited range of
light work. Furthermore, Dr. Murnin’s treatment notes
consistently indicated that Marshall’s gait was normal,
that she had full range of motion without discomfort
and that she had normal motor strength in the upper and
lower extremities.

34.

43

credibility of the applicant are to be accorded great
weight and deference, particularly since [the
administrative law judge] is charged with the duty of
observing a witness’s demeanor . . . .”

Walters v.

Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir.
1997); see also Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 801 (10th Cir. 1991)(“We defer to
the ALJ as trier of fact, the individual optimally
positioned to observe and assess the witness
credibility.”).

Because the administrative law judge

observed Marshall when she testified at the hearing on
January 20, 2010, the administrative law judge is the
one best suited to assess the credibility of Marshall.
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/Sylvia H. Rambo
Dated: November 22, 2011

United States District Judge

44

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHANIE MARSHALL,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

CIVIL NO. 4:10-CV-1978

(Judge Rambo)

O R D E R
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 Stephanie Marshall
as set forth in the following paragraph.
2.

The decision of the Commissioner of Social

Security denying Stephanie Marshall supplemental
security income benefits is affirmed.

3.

The Clerk of Court shall close this case.
s/Sylvia H. Rambo
United States District Judge

Dated: November 22, 2011.