Whelan v. Astrue

Filing 12

MEMORANDUM and ORDER directing Clerk of Court to enter Judgment in favor of the Commisisioner of Social Security and against the plaintiff; Clerk of Court is directed to CLOSE CASESigned by Honorable James M. Munley on 11/4/11. (sm, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DEBRA ANN WHELAN,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

No. 4:10-CV-2244
(Complaint Filed 11/1/10)

(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 Debra Ann Whelan’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 Whelan met the insured status requirements of
the Social Security Act through December 31, 2007. Tr. 11, 13 and

164.1

In order to establish entitlement to disability insurance

benefits Whelan was required to establish that she suffered from
a disability on or before that date.

42 U.S.C. § 423(a)(1)(A),

(c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926
F.2d 240, 244 (3d Cir. 1990).
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. Insured status
is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits.
Whelan was born in the United States on June 13, 1968.
Tr. 28, 67 and 158.

Whelan graduated from high school and can

read, write, speak and understand the English language. Tr. 168
and 174.

After high school Whelan completed four years of

college and obtained a degree in library science. Tr. 31 and 174.
Whelan has past relevant semi-skilled, sedentary employment2 as a

1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on January
10, 2011.
2. Past relevant employment in the present case means work
performed by Whelan during the 15 years prior to the date her
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565.
The terms sedentary, light, medium and heavy work are
defined in the regulations of the Social Security Administration
as follows:
2

shipping clerk. Tr. 30 and 54.
1992, until March 31, 2002,

Whelan was employed from January,

by a federal agency involved with

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

defense finance and accounting. Tr. 161, 169-170, 176 and 202.3
Whelan stopped working as a shipping clerk in 2002 when she gave
birth to her first child. Tr. 29-30 and 169.
Records of the Social Security Administration reveal
that Whelan had earnings from January 1, 1992, through 2002, as
follows:
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
Tr. 159.

$ 15140.00
18750.96
22211.28
25811.63
22254.72
22755.41
23453.74
26053.20
28194.60
15223.42
11424.79
440.004

Whelan has had no earnings or employment since 2003.
Whelan claims that she became disabled on April 23, 2007,5

3. Also, from 1994 to 1996, Whelan had part-time work as a stock
person at a clothing store. Tr. 160 and 202.
4. The earnings of $440.00 in 2003 were from unspecified selfemployment. Tr. 202.
5. Whelan in her applications for disability insurance benefits
and supplemental security income benefits alleged that she became
disabled on December 31, 2007. Tr. 144 and 148. In a
“Disability Report – Adult” filed with the Social Security
Administration she alleged that she became disabled on December
1, 2006. Tr. 29-30 and 16. At the administrative hearing held in
this case Whelan amended her alleged disability onset date to
April 23, 2007. Tr. 65. Whelan has three children and her third
child was born on April 23, 2007. Tr. 62-63.
Whelan was 38 years of age on the amended alleged
disability onset date and only 41 years of age at the time of the
4

because of cerebral palsy,6 degenerative disc disease of the
cervical and lumbar spine, scoliosis,7 myofascial pain syndrome,
chronic neck and back pain, sleep apnea, hearing loss, and a speech
impediment. Tr. 169; Doc. 9, Plaintiff’s Brief, p. 1.

administrative law judge’s hearing held on March 16, 2010. Tr.
29. Whelan is considered a “younger individual” whose age would
not seriously impact her ability to adjust to other work. 20
C.F.R. §§ 404.1563(c) and 416.963(c).
6. The website of the National Institute of Neurological
Disorders and Stroke describes cerebral palsy as
any one of a number of neurological disorders that
appear in infancy or early childhood and permanently
affect the body movement and muscle coordination but
don’t worsen over time. Even though cerebral palsy
affects muscle movement, it isn’t caused by problems
in the muscles or nerves. It is caused by abnormalities
in parts of the brain that control muscle movements.
The majority of children with cerebral palsy are born
with it, although it may not be detected until months
or years later. The early signs of cerebral palsy
usually appear before a child reaches 3 years of age.
The most common are lack of muscle coordination when
performing voluntary movements (ataxia); stiff or tight
muscles and exaggerated reflexes (spasticity); walking
with one foot or leg dragging; walking on the toes, a
crouched gait, or a “scissored” gait; and muscle tone
that is either too stiff or too floppy. A small number
of children have cerebral palsy as the result of brain
damage in the first few months or years of life, brain
infections such as bacterial meningitis or viral
encephalitis, or head injury from a motor vehicle
accident, a fall, or child abuse.
NINDS Cerebral Palsy Information Page, http://www.ninds.nih.gov/
disorders/cerebral_palsy/cerebral_palsy.htm (Last accessed
November 11, 2011).
7. Scoliosis is defined as “an appreciable lateral deviation in
the normally straight vertical line of the spine.” Dorland’s
Illustrated Medical Dictionary, 1497 (27th Ed. 1988).
5

On October 21, 2008, Whelan filed protectively8 an
application for disability insurance benefits and an application for
supplemental security income benefits. Tr. 11, 67-68, 144-156 and
On March 25, 2009, the Bureau of Disability Determination9

164.

denied Whelan’s applications. Tr. 72-94.

On April 15, 2009, Whelan

requested a hearing before an administrative law judge. Tr. 96-97.
Approximately 11 months later, a hearing before an administrative
law judge was held on March 16, 2010. Tr. 24-66.

On July 9, 2010,

the administrative law judge issued a decision denying Whelan’s
applications. Tr. 11-20.

On August 6, 2010, Whelan requested that

the Appeals Council review the administrative law judge’s decision
and on September 30, 2010, the Appeals Council concluded that there
was no basis upon which to grant Whelan’s request for review. Tr. 15.

Thus, the administrative law judge’s decision stood as the final

decision of the Commissioner.
On November 1, 2010, Whelan filed a complaint in this
court requesting that we reverse the decision of the Commissioner
denying her social security disability insurance and supplemental

8. 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.
9. 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. 72 and 85.
6

security income benefits.

The Commissioner filed an answer to the

complaint and a copy of the administrative record on January 10,
2011.

Whelan filed her brief on February 22, 2011, and the

Commissioner filed his brief on March 24, 2011.

The appeal10 became

ripe for disposition on April 5, 2011, when Whelan filed 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
ALJ’s findings of fact are supported by substantial evidence, we are
bound by those findings, even if we would have decided the factual

10. 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.
7

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.
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

8

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
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
9

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,11 (2) has an impairment that is severe
or a combination of impairments that is severe,12 (3) has an

11. 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.
12. 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
10

impairment or combination of impairments that meets or equals the
requirements of a listed impairment,13 (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.14
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).”).

supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
13. 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.
14. If the claimant has the residual functional capacity to do his
or her past relevant work, the claimant is not disabled.
11

MEDICAL RECORDS
Before we address the administrative law judge’s decision
and the arguments of counsel, we will review in detail Whelan’s
medical records.
The first medical records that we encounter are from 2005.
On December 28, 2005, Whelan had an appointment with Michael
Seifert, a certified physician’s assistant, at Elco Family
Practice,15 Myerstown, Pennsylvania. Tr. 253.

At that appointment

Whelan complained that her hands and feet had been cold for 1 week.
Id.

Other than having a temperature of 99.4 degrees, the physical

examination revealed no abnormal findings. Id.

Mr. Seifert’s

assessment was that Whelan was suffering from cold intolerance. Id.
Mr. Seifert ordered a complete blood count and thyroid stimulating
hormone blood tests. Id.

Mr. Seifert also advised Whelan to

increase her iron intake and eat red meat. Id.

The results of the

blood tests were completely normal. Tr. 269.
On January 11, 2006, Whelan had a follow-up appointment
with Mr. Seifert at Elco Family Practice regarding her complaints of
cold intolerance. Tr. 252.

At that appointment Whelan stated that

she started taking vitamins and eating more red meat and that she
was “feeling better and the symptoms [had] almost resolved.” Id.
The results of a physical examination of Whelan were normal,

15. Elco Family Practice is sometimes referred to as Elco Family
Health Center.
12

including that Whelan’s muscle strength was “strong and symmetric
with intact deep tendon reflexes, distal pulses.” Id.

Mr. Seifert

continued Whelan’s “current diet, exercise, and medication regime.”
Id.
On February 16, 2006, Whelan had an appointment at Elco
Family Practice complaining of itchy, burning and red eyes. Tr. 251.
Whelan was diagnosed with conjunctivitis (pink eye), an inflammation
or infection of the membrane lining the eyelid. Id.

Other than the

eye problem, blood pressure of 138/98 and a temperature of 100
degrees, the results of a physical examination were normal. Id.

We

were unable to decipher the portion of the record relating to the
treatment plan.16

Furthermore, our review of the administrative

record did not reveal a follow-up appointment relating to Whelan’s
conjunctivitis.
On May 16, 2006, Whelan had an appointment with Joel E.
Yeager, M.D., at Elco Family Health Center. Tr. 249-250.

At that

appointment Whelan complained of a one month history of hearing
loss. Id.

Dr. Yeager did remove some wax (cerumen) from the right

external ear canal. Id.

Dr. Yeager did conclude based on the

clinical history and audiogram that she suffered a bilateral hearing
loss and referred her to an ear, nose and throat specialist. Id.
On June 1, 2006, Whelan had an appointment with Melnick &

16. The handwriting is illegible but we suspect that Whelan was
prescribed eye drops containing an antibacterial agent.
13

Moffitt ENT Associates, Lebanon, Pennsylvania. Tr. 330 and 335-336.
Whelan was examined by John J. Moffitt, M.D., and also had her
hearing tested by an audiologist. Id.

Audiological testing revealed

that Whelan had mild conductive hearing loss17 in the ears
bilaterally. Tr. 335.

Whelan had a speech reception threshold,

i.e., the minimum intensity in decibels at which a patient can
understand 50% of spoken words, of 25 decibels in the right ear and
35 in the left ear.18

Id.

Dr. Moffitt concluded that Whelan was

suffering from otosclerosis, abnormal bone growth in the middle ear
causing hearing loss.19 Tr. 330.

Dr. Moffitt told Whelan that she

17. Conductive hearing loss occurs when sound is not conducted
efficiently through the outer ear canal to the eardrum and the
middle ear and usually involves a reduction in sound level or the
ability to hear faint sounds. See generally Hearing loss –
Overview, Medical Referrence, Encyclopedia, University of
Maryland Medical Center, http://www.umm.edu/ency/article/
003044.htm (Last accessed November 2, 2011).
18. Normal hearing level in decibels is between -10 and 20. Tr.
335. A person who has a hearing threshold in decibels between 025 has no significant hearing difficulty. If the level is between
26-40 decibels the person has difficulty with faint or distant
speech. Hearing Tests, Results, Health.com, http://www.health.com
/health/library/topic/0,,tv8475_tv8482,00.html (Last accessed
October 31, 2011).
19. There are three small bones in the middle ear – the malleus,
incus and stapes. When these bones become rigid and do not
vibrate properly, an individual can suffer conductive hearing
loss. The primary bone involved is the stapes (stirrup) which is
closest to the inner ear. When there is abnormal growth of bone
around the stapes it is unable to move and cannot conduct sound
vibrations to the inner ear. Otosclerosis can be treated with
medications (Florical) or surgery (stapedectomy). See generally
Otosclerosis, Health Sciences, Department of Otolaryngology/Head
& Neck Surgery, University of California, Irvine, http://
www.ent.uci.edu/otosclerosis.htm (Last accessed October 31,
14

had three options: do nothing, obtain a hearing aid or have a
stapedectomy (the surgical removal and replacement of the stapes
with a prosthetic implant). Id.
use of Florical tablets.20 Id.

There was also a discussion of the
At the end of the appointment

Whelan told Dr. Moffitt she would consider her options. Id.
The next day Whelan notified Dr. Moffitt’s office by
telephone that she decided to have a stapedectomy. Id.

In light of

that telephone call, Dr. Moffitt scheduled surgery for June 27,
2006, and on that date Dr. Moffitt successfully performed a
stapedectomy. Tr. 330 and 339-340.21
On July 7, 2006, Whelan had an appointment with Dr.
Moffitt. Tr. 330. Dr. Moffitt’s notes of that appointment state in
toto as follows: “[Whelan] [f]eels good. She had some dizziness but
has passed.
any noted.

Past history and medications reviewed, and changes, if
EXAM: Her ear was debrided. Rinne was positive at 512

and she could hear dial tone.

It seems that the prosthesis is

working. PLAN: Recommend increasing her activity, avoiding driving
or jarring activity. RV: Followup for audio in 4 weeks.

Patient

2011).
20. Florical is a combination of sodium flouride and calcium
carbonate. Florical capsules and tablets, Drugs.com,
http://www.drugs.com/drp/florical-capsules-and-tablets.html
(Last accessed October 31, 2011).
21. The surgery revealed that the malleus and the incus were
movable but that “the stapes was frozen and immobile.” Tr. 339.
The stapes was removed and a prosthesis implanted. Id.
15

voices understanding.” Id.
On August 14, 2006, Whelan had an appointment with Dr.
Moffitt. Tr. 330.

Dr. Moffitt’s notes of that appointment state in

pertinent part as follows: “Debra is doing great. . . She has [a
speech recognition threshold] of 15 [decibels] with 100% [word]
disc[rimination] in her left and she is very happy with the result.
PLAN: I recommended Florical but as she is about to get pregnant, we
are going to hold on that and deal with that at a later time if
necessary. She would like to get the other side done after her
pregnancy.

I stated that is fine but get through the pregnancy

first and followup thereafter.

She is going to then also contact us

when she is ready for her Florical.” Id.

The audiologic

examination of August 14, 2006, revealed that the stapedectomy had
resolved Whelan’s hearing loss in her left ear. Tr. 333.

Whelan had

normal hearing in her left ear and mild conductive hearing loss in
her right ear. Id.
On September 29, 2006, there was a telephone call between
Whelan’s husband and Dr. Moffitt’s office regarding whether Mrs.
Whelan should take Florical. Tr. 329.

Dr. Moffitt’s office advised

Whelan’s husband that his wife should “wait to start the Florical
until after her pregnancy.” Id.
The next medical record we encounter is from July, 2007.
On July 2, 2007, Whelan had an appointment with Dr. Moffitt. Tr.
329.

Dr. Moffitt’s notes of that appointment state in pertinent

16

part as follows: “Debra feels her hearing still remains very stable
in the left ear and would like to start the Florical.

She is done

with pregnancies and would like to preserve her hearing. PLAN: We
started her on Florical 1 bid and we are going to stay on it
indefinitely. We are going to recheck the hearing in 1 year.

We

discussed the stapedectomy in the opposite side which she is
interested in but at this point there is no rush. Should we see a
decline in the hearing over the next year we may move more quickly.”
Id.
On August 6, 2007, Whelan had an appointment with
Christopher Bustamante, M.D., at Elco Family Health Center. Tr. 246.
At that appointment Whelan complained of “fever and flank pain which
started about two days ago.” Id.

The results of a physical

examination were normal except for “mild left flank tenderness.”
Also, a urine test revealed “some moderate non-hemolyzed blood,
positive for nitrates and had trace leukocytes.” Id.

Dr.

Bustamante’s assessment was that Whelan was suffering from a urinary
tract infection and started her on the antibiotic Ciprofloxacin. Id.
Dr. Bustamante also ordered a CT scan of the abdomen. Id.
A CT scan was performed on August 7, 2007, and revealed
that Whelan had three non-obstructing kidney stones (calculi) in the
upper, mid and lower poles of the left kidney. Tr.

266.

There was

no evidence of swelling of the kidneys or ureters
(hydrouretoronephrosis). Id.

Also, on August 7th Whelan had an

17

appointment with Dr. Bustamante. Tr. 244.

Dr. Bustamante’s

assessment on that date was that the urinary tract infection
(pyelonephritis) was “resolving” and the plan was to continue the
antibiotic for ten days. Id.
On August 27, 2007, Whelan again had an appointment with
Dr. Bustamante. Tr. 242.

The results of a physical examination on

that date were essentially normal.22 Id.
costovertebral angle tenderness.23 Id.

Whelan had no

Dr. Bustamante advised

Whelan to increase her fluid intake for the non-obstructing kidney
stones and also drink cranberry juice to prevent urinary tract
infections. Id.

A blood chemistry taken on August 27, 2007, was

essentially24 normal. Tr. 265.

A blood chemistry taken on October

22. Whelan did have a toenail fungus (ocychomycosis) for which Dr.
Bustamante prescribed Lamisil.
23. The costovertebral angle is the acute angle formed between the
lowest rib and the vertebral column. Pain at this area is usually
attributed to kidney disease. Costovertebral Angle -definition of
costovertebral angle in the Medical Dictionary - by the Free
Online Dictionary, Mosby’s Medical Dictionary, 8th Edition, 2009,
http://medical-dictionary.thefreedictionary.com/costovertebral
+angle (Last accessed October 31, 2011).
24. Whelan’s total bilirubin was slightly elevated at 1.3 mg/dl
(normal reference range 0.0-1.0 mg/dl) and one of her liver
function enzymes (aspartate aminotransferase(AST)) was slightly
low 13 U/L (normal reference range 15-37 U/L). The reference
ranges can vary from laboratory to laboratory. High levels of
bilirubin in the blood can cause jaundice. High levels of the
liver function enzymes suggest an inflammatory process or
possible liver damage. There is no indication on the laboratory
record that Dr. Bustamante had any concern about the total
bilirubin or the liver functional enzyme levels. See generally,
Bilirubin, WebMD, http://www.webmd.com/digestive-disorders/
bilirubin-15434?page=3 (Last accessed October 31, 2011); Liver
18

12, 2007, was completely normal. Tr. 264.
On November 2, 2007, Whelan had an appointment at Elco
Family Health Center. Tr. 241.
complained of left hip pain. Id.

At that appointment Whelan

hip were ordered.

Tr. 259-263.

Blood tests and an x-ray of the
The blood tests were completely

normal, including Antinuclear Antibody25 and Rheumatoid factor
tests. Id.
259.

The x-ray revealed a possible “subtle dislocation.” Tr.

Whelan had a follow-up appointment at Elco Family Practice

with Mr. Seifert on November 12, 2007. Tr. 240.

At that appointment

Whelan stated that her hip pain had “resolved.” Id.

Whelan denied

“any other complaints” and was “no longer taking any medications.”
Id.
On April 22, 2008, Whelan had an appointment with Mahmud
Ali, M.D., at Elco Family Health Center. Tr. 238.

At that

appointment Whelan complained of “left shoulder pain, tailbone pain
and tingling of the right hand and finger[s].” Id.
complained of “tiredness.” Id.

She also

The results of a physical

examination were essentially normal but she did have spasms over the
left shoulder and neck and although she had good range of motion, it
was with pain. Id.
sacral area.” Id.

She also had “point tenderness over the right
Dr. Ali’s assessment was that Whelan suffered

Blood Tests, MedicineNet, http://www.medicinenet.com/liver_blood
tests/article.htm. (Last accessed October 31, 2011).
25. A positive ANA test would have been suggestive of an
inflammatory process or autoimmune disorder.
19

from left shoulder pain and right sacral pain which was “most
probably secondary to . . . cerebral palsy.” Id.
the drugs Tramadol26 and Flexeril.27 Id.

Dr. Ali prescribed

Furthermore, because of

Whelan’s complaints of fatigue, Dr. Ali ordered a complete blood
count and thyroid function tests. Id.

The results of the blood

tests were completely normal. Tr. 258 and 275-276.
On May 27, 2008, Whelan had an appointment with Dr. Ali at
Good Samaritan Physician Services.28 Tr. 236.

At that appointment

Whelan complained of back and neck pain but had “[n]o new concerns.”
Id.

It was noted that Whelan’s pain was “relatively controlled”

with Tramadol and Flexeril. Id.

Whelan denied chest pain,

lightheadedness, palpitations, abdominal pain, bleeding, heartburn,
nausea, vomiting, lesions, rash, dizziness, headaches, loss of
consciousness, numbness, paresthesia29 and weakness. Id.

Dr. Ali’s

26. Tramadol is a narcotic-like pain reliever used to treat
moderate to severe pain. Tramadol, Drugs.com, http://www.
drugs.com/tramadol.html (Last accessed November 2, 2011).
27. Flexeril is a muscle relaxant. Flexeril, Drugs.com,
http://www.drugs.com/flexeril.html (Last accessed November 2,
2011).
28. Good Samaritan Physician Services appears to be a group of
doctors associated with The Good Samaritan Hospital, Lebanon,
Pennsylvania. Tr. 275 Dr. Ali appears to have been a resident at
that hospital because the medical record is signed by Dr. Ali and
Daria Kovarikova, M.D., as the attending physician, and there is
a notation by Dr. Kovarikova which states “[d]iscussed with
resident in detail.” Tr. 237.
29. Paresthesia is a sensation of tingling, prickling, or numbness
of the skin, more generally known as the feeling of pins and
needles. See generally Dorland’s Illustrated Medical Dictionary,
20

physical examination of Whelan revealed that Whelan appeared
healthy, had no signs of acute distress, was oriented to person,
place and time, was cooperative with appropriate behavior; her
respirations were unlabored and lungs were clear to auscultation;
her abdominal exam was normal; she walked with a normal gait; her
upper and lower extremities were normal, including normal strength
and range of motion; and she had full motor strength and reflexes
were brisk and symmetrical.
were observed. Id.

Id.

“No sensory or motor deficits”

Dr. Ali’s assessment which was approved by Dr.

Kovarikova was that Whelan suffered from backache unspecified and
cervicalgia (neck pain). Id.

Whelan’s prescription for Tramadol and

Flexeril was continued. Id.
On July 2, 2008, Whelan had her yearly appointment with
Dr. Moffitt. Tr. 329.

Dr. Moffitt’s notes of that appointment state

in pertinent part as follows: “Really thinks things have remained
very stable over the last year. Has had no ear problems. . . The
ears look fine. Audio and tymp are stable. PLAN: At this point as
things are nice and stable I recommend we just recheck in 12 months.
She is ok with that.

Followup sooner if there are problems.

Patient voices understanding.” Id.

Whelan had a speech recognition

threshold of 15 decibels in the left ear and 30 decibels in the
right and a 100% word recognition bilaterally indicating that Whelan
had a mild conductive hearing loss in the left ear and mild to

1232 (27th Ed. 1988).
21

moderate hearing loss in the right ear.30 Tr. 331.
On July 19, 2008, Whelan was involved in a “low impact,
front damage” motor vehicle collision and was transported to the
emergency department at The Reading Hospital and Medical Center by
ambulance. Tr. 226-227.

At the scene of the accident Whelan was

observed “walking around.” Id.

Whelan complained of head pain and

some wrist pain but denied loss of consciousness. Id.

At the

hospital Whelan was “cooperative, alert and oriented [to person,
place and time].” Id.

Whelan appeared in “no acute distress.” Id.

A neurological examination revealed that Whelan had strong and equal
motor strength in all extremities. Id.
nausea and vomiting. Id.

Whelan denied paresthesia,

Whelan had “[n]o facial droop” and her

speech was “clear and understandable.” Id.
Scale total was 15.31 Id.

Whelan’s Glasgow Coma

The verbal portion of the Glasgow Coma

30. The individual completing the audiologic examination form (Tr.
331) incorrectly circled at the bottom of the form under
impression “conductive,” “mild” and “moderate” for the left ear
and “conductive” and “mild” for the right ear. The charts above
the impression section of the form clearly indicate that Whelan
had a mild conductive hearing loss in the left ear and a mild to
moderate conductive hearing loss in the right.
31. The Glasgow Coma Scale is “a quick, practical standardized
system for assessing the degree of consciousness in the
critically ill and for predicting the duration and ultimate
outcome of coma, primarily in patients with head injuries. The
system involves eye opening, verbal response, and motor response,
all of which are evaluated independently according to a rank
order that indicates the level of consciousness and degree of
dysfunction. The degree of consciousness is assessed numerically
by the best response. The results may be plotted on a graph to
provide a visual representation of the improvement, stability, or
deterioration of a patient's level of consciousness, which is
22

Scale was 5 (the highest score possible) signifying that Whelan was
oriented and conversing normally.
Palmissano, D.O. Id.

Whelan was examined by Anthony

A CT scan of Whelan’s brain and cervical spine

and an x-ray of her wrist were ordered. Id.

The CT scan of the

brain revealed “[n]o acute abnormality” but “developmental parietal
anomalies” Tr. 229.

The developmental anomalies observed were of

the “cortex bilaterally, including right-sided schizencephaly”32 but

crucial to predicting the eventual outcome of coma. The sum of
the numeric values for each parameter can also be used as an
overall objective measurement, with 15 indicative of no
impairment, 3 compatible with brain death, and 7 usually accepted
as a state of coma. The test score can also function as an
indicator for certain diagnostic tests or treatments, such as the
need for a computed tomography scan, intracranial pressure
monitoring, and intubation. The scale has a high degree of
consistency even when used by staff with varied experience.”
Mosby's Medical Dictionary,__, 8th edition, 2009.
32. The National Institute of Neurological Disorders and Stroke’s
website describes schizencephaly as
an extremely rare developmental birth defect
characterized by abnormal slits, or clefts, in the
cerebral hemispheres of the brain. Babies with
clefts in both hemispheres (called bilateral clefts)
commonly have developmental delays, delays in speech
and language skills, and problems with brain-spinal
cord communication. Individual with clefts in only
one hemisphere (called unilateral clefts) are often
paralyzed on one side of the body, but may have
average to near-average intelligence. Individuals with
schizencephaly may also have an abnormally small head,
mental retardation, partial or complete paralysis, or
poor muscle tone. Most will experience seizures. Some
individuals may have an excessive accumulation of fluid
in the brain called hydrocephalus.
NINDS Schizencephaly Information Page, http://www.ninds.nih.gov/
disorders/schizencephaly/schizencephaly.htm (Last accessed
23

“unchanged from the prior MRI (May 13, 2004).”

Id.

The CT of the

cervical spine revealed “[n]o significant abnormality.” Id.

The x-

ray of Whelan’s wrist was normal. Tr. 228.
On August 13, 2008, Whelan had an appointment with Cindy
Schmeltz, DNP,33 at Good Samaritan Physician Services. Tr. 234-235.
At that appointment Whelan complained of neck pain but stated that
her [b]ack now feels better.” Id.

The physical examination of

Whelan revealed no signs of acute distress, Whelan was cooperative,
and her neck was normal to palpation. Tr. 234.

It further revealed

that Whelan walked with a stiff and unsteady gait, decreased range
of motion of the cervical spine, pain to left side of neck with
movement and muscle tightness in the neck. Id.

Dr. Schmeltz’s

assessment was that Whelan was suffering from cervicalgia and muscle
spasms and she ordered physical therapy and prescribed Skelaxin.34
Id.
On October 21, 2008, Whelan had an x-ray of the cervical
spine which revealed “no acute injury” and “[m]ild degenerative

November 1, 2011). At least one study has indicated that
schizencephaly is a cause of spastic cerebral palsy. PubMed.gov,
Abstract, Schizencephaly as a cause of spastic cerebral palsy,
http://www.ncbi.nlm.nih.gov/pubmed/21444273 (Last accessed
November 11, 2011).

33. “DNP” is an abbreviation for Doctor of Nursing Practice.
34. Skelaxin is a muscle relaxant. Skelaxin, Drugs.com, http://
www.drugs.com/skelaxin.html (Last accessed November 2, 2011).
24

changes at C6-7.” Tr. 256.

On October 31, 2008, Whelan had an MRI

of the cervical spine which revealed scoliosis and “disc bulges,
disc osteophyte complex at C5-C6 and C6-C7 with right neural
foraminal narrowing at C5-C6. Tr. 254.
Between September 28 and December 24, 2008, Whelan had 27
physical therapy sessions at Western Berks Physical Therapy,
Wyomissing, Pennsylvania. Tr. 291-323.

The discharge summary dated

and signed on December 24, 2008, states that Whelan met all physical
therapy goals. Tr. 319.

A physical examination on December 23,

2008, revealed that Whelan’s gait, balance and movement were not
impaired. Tr. 320.

The discharge summary further states that

Whelan’s communication was not impaired. Tr. 321.
On January 2, 2009, Whelan had an appointment with Craig
H. Johnson, M.D., a neurosurgeon. Tr. 284-288.

Dr. Johnson’s

physical examination of Whelan revealed that Whelan had “[n]o
significant paracervical muscle spasm or tenderness” and “[c]ervical
range of motion show[ed] minimal decrease in left lateral rotation.”
Tr. 285.

It was noted that Whelan’s gait “is slight steppage and

slight spastic gait on the left” and “[t]andem gait [was] performed
reasonably well given her cerebral palsy primarily affecting her
left side.” Id.

Whelan was able to toe walk but there was no

ability to heel walk on the left side. Id.

After reviewing the

diagnostic studies, including the MRI of October 31, 2008, and
examining Whelan, Dr. Johnson concluded that Whelan did not have

25

“any surgically significant abnormality.” Id.

Dr. Johnson’s

assessment was that Whelan was suffering from cervical degenerative
disc disease at C5-C6 and C6-C7 and cerebral palsy primarily
affecting the left side. Id.

Dr. Johnson prescribed Relafen,35

continued her on Skelaxin and Neurontin,36 and referred her to a
pain specialist. Tr. 286.
An x-ray of the cervical spine on January 13, 2009,
revealed “mild degenerative disc disease C6-7, and to a lesser
extent C5-6" and “1.5 mm retrolisthesis37 C3-4 on an extension
view.” Tr. 219.
On January 19, March 23, and March 31, 2009, Whelan had
appointments with Jason T. Bundy, M.D., at Center for Pain Control,
P.C., Wyomissing, Pennsylvania. Tr. 359-366.

At the appointment on

January 19th Whelan admitted “carrying around her young child” and
that “her cerebral palsy never limited her activity.” Tr. 364.

35. Relafen is a nonsteroidal anti-inflammatory drug used to treat
pain or inflammation caused by arthritis. Relafen, Drugs.com,
http://www.drugs.com/relafen.html (Last accessed November 2,
2011).
36. “Neurontin (gabapentin) is an anti-epileptic medication, also
called an anticonvulsant. It affects chemicals and nerves in the
body that are involved in the cause of seizures and some types of
pain.” Neurontin, Drugs.com, http://www.drugs.com/neurontin.html
(Last accessed November 2, 2011).
37. Retrolithesis is a backward (posterior) slippage of one
vertebral body with respect to the one immediately below. See
generally Retrolithesis, http://www.poulinchiro.com/doctor/
chiropractor/chiropractic-Ashburn/id-your-pain/retrolisthesis
(Last accessed November 2, 2011).
26

Whelan denied any changes in vision or hearing. Tr. 365.

The

physical examination on that date revealed that Whelan had an
abnormal gait and station secondary to her cerebral palsy; she was
able to stand on her toes but had difficulty heel walking on the
left. Id.

It was stated that Whelan had normal (5/5) strength in

the upper and lower extremities with “a mild fade in the left [upper
extremity].” Id.

Whelan had full lumbar range of motion and she was

neurologically intact. Id.

At the appointment on March 31, 2009,

Whelan reported “significant improvement in her neck muscle pain
syndrome with trial application of baclofen38 and Lidoderm patch.”
Tr. 362.

In the report of the March 31st appointment Dr. Bundy

stated that Whelan “has manifestations of mild symptoms of cerebral
palsy, left side predominant.” Tr. 359.

Dr. Bundy noted that Whelan

had “no obvious facial droop” and neurologically she was intact. Id.
He stated that she had manifestations of cerebral palsy, i.e., “2+
Ashworth scale spasticity39 predominantly in the left upper and
lower extremity” but she was “able to ambulate freely.” Id.
On March 18, 2009, Jerry Brenner, D.O., reviewed Whelan’s

38. “Baclofen is a muscle relaxer and an antispastic agent.”
Baclofen, Drugs.com, http://www.drugs.com/baclofen.html (Last
accessed November 2, 2011).
39. Spasticity is a measure of muscle tone/tightness. With respect
to cerebral palsy it is where both the arms and legs have
abnormal stiffness. Those with spastic cerebral palsy have stiff
and jerky movements. About Cerebral Palsy, http://www.aboutcerebral-palsy.org/definition/spastic-cerebral-palsy.html (Last
accessed November 1, 2011). Whelan has spasticity on the left
side but is able to ambulate without significant difficulty.
27

medical records on behalf of the Bureau of Disability Determination
and concluded that Whelan had the ability to engage in sedentary
work on a full-time basis. Tr. 341-354.

Dr. Brenner stated that

Whelan had no visual, communicative or environmental limitations.
Tr. 343-344.
On July 2, 2009, Whelan had an appointment with Dr.
Schmeltz at Good Samaritan Physician Services regarding her blood
pressure and increasing her dose of Neurontin. Tr. 376-377. At that
appointment Whelan denied dizziness, headaches, loss of
consciousness, numbness, paresthesia and weakness. Id.

With the

exception of her blood pressure, the results of a physical
examination were essentially normal. Id.

Dr. Schmeltz’a assessment

was that Whelan was suffering from high blood pressure. Id.
also noted Whelan’s history of cerebral palsy. Id.

She

Dr. Schmeltz

increased Whelan’s dose of Neurontin and directed Whelan to monitor
her blood pressure at home. Id.

The record does not indicate that

Dr. Schmeltz prescribed a medication to treat Whelan’s high blood
pressure. Id.

With regard to Whelan’s cerebral palsy, Dr. Schmeltz

directed that Whelan follow-up with a “neurosurgeon at [Reading
Hospital Medical Center].” Id.
On July 15, 2009, Whelan had an appointment with Dr.
Johnson, the neurosurgeon. Tr. 367-368.

After examining Whelan, Dr.

Johnson’s assessment was substantially the same as his assessment of
January 2, 2009. Id.

Dr. Johnson stated as follows: “She has a

28

slight steppage gait and spastic gait on the left. There is no
cervical paravertebral tenderness with palpation.

Cervical range of

motion is slightly decreased in the left lateral rotation. Tandem
gait is performed reasonably well.

Upper and lower extremity

strength is 4+ to 5/5 on the left and 5/5 on the right.
unable to heel walk on the left.

She is

Right heel walking and bilateral

toe walking are performed normally.” Id.

Dr. Johnson’s impression

was that Whelan was suffering from cervical degenerative disc
disease, slight retrolisthesis at C3-C4 with extension, and cerebral
palsy primarily affecting the left side.

Dr. Johnson further stated

that Whelan was stable neurologically. Id.
On July 16, 2009, Whelan had an appointment with Dr.
Schmeltz at Good Samaritan Physician Services regarding her back
pain and high blood pressure. Tr. 374-375.

At that appointment

Whelan denied having arthralgias, stiffness, swelling, dizziness,
headaches, loss of consciousness, numbness, paresthesia and
weakness. Id.
Id.

She further denied having anxiety or mood changes.

Her blood pressure at that appointment was 140/94. Id.

Other

than the abnormal blood pressure reading, the results of a physical
examination were essentially normal. Id.

Dr. Schmeltz’s assessment

was that Whelan was suffering from high blood pressure and Dr.
Schmeltz prescribed Lisinopril for that condition. Id.

Dr. Schmeltz

noted that Whelan’s pain syndrome had improved on an increased dose
of Neurontin and that Whelan had seen the neurosurgeon in Reading.

29

Id.
On August 17, 2009, Whelan had an appointment with Dr.
Schmeltz regarding her high blood pressure. Tr. 372-373. The results
of a physical examination were normal. Id.
was normal(122/76). Id.

Whelan’s blood pressure

Dr. Schmeltz authorized a refill of

Whelan’s prescription for Lisinopril. Id.
On or about November 18, 2009, Whelan had an appointment
with Steven Katz, D.O., Fairless Hills, Pennsylvania, whose
letterhead references a specialty of infectious diseases. Tr. 381.
There is only page two of a two page letter from Dr. Katz in the
record. The second page of letter indicates that Whelan “has
nonrestorative sleep associated with generalized myofascial pain”
and Dr. Katz scheduled Whelan for a overnight sleep study.

He also

noted that he asked Whelan to reduce her intake of the Neurontin and
provided Whelan with samples of Balacet.40
On November 23, 2009, Whelan had an appointment with Dr.
Schmeltz regarding her high blood pressure. Tr. 370-371.

At that

appointment Whelan stated she was taking all medications as
prescribed and she was “feeling well overall.” Id.

Whelan indicated

that she had no frequent headaches or leg swelling and no chest pain

40. Balacet is a combination of acetaminophen and propoxyphene.
Propoxyphene is a narcotic pain reliever and acetaminophen is a
less potent pain reliever and fever reducer that increases the
impact of propoxyphene. Balacet, Drugs.com, http://www.drugs.
com/mtm/balacet.html (Last accessed November 2, 2011). Balacet
was withdrawn from the U.S. market in November, 2010. Id.
30

or shortness of breath. Id.

Whelan stated she was monitoring her

blood pressure at home and she was having normal readings of 110120/70-80. Id.

Whelan stated she was not exercising other than

“chasing after her children.” Id.

The results of physical

examination were essentially normal. Id.
was 124/86. Id.

Whelan’s blood pressure

Dr. Schmeltz advised Whelan to increase her

exercise and also advised Whelan that she could resume the use of
oral contraceptives because her blood pressure was under control.
Id.
On January 7, 2010, Whelan had an overnight sleep study at
the Good Samaritan Hospital. Tr. 378-379.

The study revealed “the

presence of severe obstructive sleep disordered breathing.”
379.

Tr.

During her sleep the lowest blood oxygen level was 95%.41 Id.
The last medical record that we encounter is a letter from

Dr. Katz dated January 18, 2010, which states in pertinent part as
follows:
Debra is still complaining of generalized musculoskeletal
pain and fatigue. Her overnight polysomnogram revealed
severe sleep disordered breathing and she will be
scheduled for CPAP titration test. Extensive laboratory
work including rheumatologic studies, Lyme and hepatitis
C were all normal. Debra does seem to be responding to
Ultracet p.r.n.42 Refill prescription was written for

41. Normal blood oxygen saturation ranges from 95% to 100%.
42. “Ultracet contains a combination of tramadol and
acetaminophen. Tramadol is a narcotic-like pain reliever.
Acetaminophen is a less potent pain reliever that increases the
effects of tramadol. Ultracet is used to treat moderate to severe
pain.” Ultracet, Drugs.com, http://www.drugs.com/ultracet.html
31

Ultracet and we await her response to the CPAP treatments.
Tr. 380.
DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Whelan did not engage in substantial
gainful work activity since April 23, 2007, the alleged disability
onset date. Tr. 13.
At step two of the sequential evaluation process, the
administrative law judge found that Whelan had the following severe
impairments: cerebral palsy, degenerative disc disease of the
cervical and lumbar spine, scoliosis, and myofascial pain syndrome.
Id.

The administrative law judge concluded that Whelan’s hearing

loss, sleep apnea, high blood pressure, migraines and history of a
kidney infection were non-severe impairments.43

Tr. 13-15.

At step three of the sequential evaluation process the
administrative law judge found that Whelan’s impairments did not
individually or in combination meet or equal a listed impairment. Tr.

(Last accessed November 2, 2011).
43. 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 ability
to work. 20 C.F.R. § 416.921; Social Security Rulings 85-28, 963p and 96-4p.
32

15.
At step four of the sequential evaluation process the
administrative law judge found that Whelan had “the residual
functional capacity to perform sedentary work” with certain
limitations. Tr. 15.

Whelan could not operate controls with the

left upper or lower extremity; she could only occasionally kneel,
stoop, crouch, balance or climb ramps or stairs; she could not
engage in any telephone work;

she could only occasionally speak or

deal with the public; and she required a sit/stand option at will
during the workday. Id.

Based on that residual functional capacity,

and Whelan’s age, education and work background and the testimony of
a vocational expert, the administrative law judge found that Whelan
could perform her prior semi-skilled, sedentary work as a shipping
clerk.

Consequently, the administrative law judge did not proceed

to step five of the sequential evaluation process and found that
Whelan was not disabled.
The administrative record in this case is 381 pages in
length, primarily consisting of medical and vocational records.

The

administrative law judge did an adequate job of reviewing Whelan’s
vocational history and medical records in her decision. Tr. 13-20.
Furthermore, the brief submitted by the Commissioner thoroughly
reviews the medical and vocational evidence in this case. Doc. 10,
Brief of Defendant.

Whelan’s primary argument is that the

administrative law judge erred at step three of the sequential

33

evaluation process by failing to find that Whelan’s physical
impairments met the requirements of a listed impairment.

Whelan

also argues that the administrative law judge erred when she found
that Whelan had the residual functional capacity to perform her
prior work as a shipping clerk; that the administrative law judge
erred by inappropriately judging Whelan’s credibility; and that the
administrative law judge erred by failing to adequately develop the
record.

We have thoroughly reviewed the record in this case and

find no merit in Whelan’s arguments.
At step two the administrative law judge found that Whelan
suffered from severe impairments.

If Whelan’s severe impairments

met or equaled a listed impairment, she would have been considered
disabled per se and awarded disability benefits.

However, a

claimant has the burden of proving that his or her severe impairment
or impairments meet or equal a listed impairment.
Zebley, 493 U.S. 521, 530 (1990).

Sullivan v.

To do this a claimant must show

that all of the criteria for a listing are met. Id.

An impairment

that meets only some of the criteria for a listed impairment is not
sufficient. Id.

To qualify for benefits by showing that an

impairment, or combination of impairments, is equivalent to a listed
impairment, Whelan had the burden to present “medical findings equal
in severity to all the criteria for the one most similar listed
impairment.” 493 U.S. at 531.

The Social Security regulations

require that an applicant for disability benefits come forward with

34

medical evidence “showing that [the applicant] has an impairment(s)
and how severe it is during the time [the applicant] say[s] [he or
she is] disabled” and “showing how [the] impairment(s) affects [the
applicant’s] functioning during the time [the applicant] say[s] [he
or she is] disabled.”

20 C.F.R. §§ 404.1512(c) and 416.912(c).

Whelan contends she meets Listings 11.07C, 11.07D and
2.09. Listing 11.07 applies to claimants with cerebral palsy who
experience significant interference in communication due to speech,
hearing, or visual defect (11.07C) or disorganization of motor
function as described in 11.04B (11.07D).

Listing 11.04B requires

“[s]ignificant and persistent disorganization of motor function in
two extremities, resulting in sustained disturbance of gross and
dexterous movement, or gait and station (see 11.00C).”

Section

11.00C states in relevant part that “[t]he assessment of impairment
depends on the degree of interference with locomotion and/or
interference with the use of fingers, hands and arms.”

Listing 2.09

relates to those who have a “[l]oss of speech due to any cause, with
inability to produce by any means speech that can be heard,
understood, or sustained.”
Initially it should be stated that no treating physician
has provided a functional assessment of Whelan indicating that she
is unable to perform her prior work as a shipping clerk for the
requisite 12-month statutory period.

Furthermore, no treating

physician has indicated that Whelan has significant interference in

35

communication due to speech, hearing, or visual defect or
disorganization of motor function as described in 11.04B and the
bare medical records do not support such a finding.

As for Listing

2.09 there is no basis to conclude that Whelan has a loss of speech
to such a degree that she has the “inability to produce by any means
speech that can be heard, understood, or sustained.”
Whelan points to two items of evidence in support of her
contention that she satisfies the listing with respect to loss of
speech.

First, she points to the transcript of the administrative

hearing where portions of the hearing are designated inaudible.
However, it is not unusual to see such “inaudible” designations in
transcripts which are prepared from electronic recordings.
Furthermore, it does not appear from the hearing transcript that the
administrative law judge or counsel ever asked Plaintiff to repeat a
response when the hearing reporter specified an “inaudible” answer
in the typewritten transcript.

Second, Whelan points to a statement

by an employee of the Social Security Administration who interviewed
Whelan on or about November 25, 2008.

That employee stated that

Whelan had a severe speech impediment. Tr. 165-166.

However, that

interview was conducted over the telephone and the administrative
law judge in his residual functional capacity assessment stated that
Whelan could not engage in “any telephone work.” Tr. 15.

The

employee of the Social Security Administration did not have an
opportunity to observe Whelan.

In contrast, the medical personnel

36

who treated and observed Whelan after an motor vehicle accident on
July 19, 2008, reported that Whelan’s speech was “clear and
understandable.” Tr. 226.

Furthermore, when Whelan was discharged

from physical therapy on December 24, 2008, the discharge summary
stated that Whelan’s communication was not impaired. Tr. 321.
There is a total lack of medical evidence supporting
Whelan’s contention that she has a significant speech impediment. If
Whelan had such a severe speech impediment, one could expect to see
a reference to the speech impediment in the medical treatment notes.
However, there are no such references.

In fact, as specified in our

review of the medical records, there are reports of Whelan’s
adequate ability to communicate orally.
The administrative law judge did not err when he found at
step three of the sequential evaluation process that Whelan’s
impairments did not meet or functionally equal a listed impairment.
We are satisfied that the administrative law judge
appropriately considered all of Whelan’s functional limitations when
determining Whelan’s residual functional capacity.

As for, Whelan’s

claim that the administrative law judge failed to adequately develop
the record, Whelan was represented by counsel who could have assured
that all relevant medical evidence helpful to Plaintiff’s claim had
been obtained.

Furthermore, Whelan has not proffered any additional

evidence, e.g., functional assessments from treating physicians, as
part of her present appeal.

37

The administrative law judge appropriately relied on the
opinion of Dr. Brenner who concluded that Whelan could engage in
sedentary work and that Whelan had no manipulative, visual,
communicative or environmental limitations. Tr. 343-344.
Whelan argues that the administrative law judge
inappropriately assessed her credibility.

The administrative law

judge stated that Whelan’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 her prior sedentary work as a shipping clerk.

Tr. 17.

The

administrative law judge was not required to accept Whelan’s claims
regarding her limitations and her pain. 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 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.”).

38

Because the administrative law

judge observed Whelan when she testified at the hearing on March 16,
2010, the administrative law judge is the one best suited to assess
the credibility of Whelan.
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: November 4, 2011

39

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DEBRA ANN WHELAN,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

No. 4:10-CV-2244
(Complaint Filed 11/1/10)

(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 Debra Ann Whelan as set forth in the
following paragraph.
2.

The decision of the Commissioner of Social Security

denying Debra Ann Whelan 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: November 4, 2011

40