Galligher v. Commissioner of Social Security

Filing 9

MEMORANDUM AND ORDER AFFIRMING the decision of the Commissioner of Social Security denying Pltf's disability insurance benefits; Clerk of Court shall enter judgment in favor of the Commissioner and CLOSE this case.Signed by Honorable James M. Munley on 2/28/12. (Attachments: # 1 ORDER)(sm, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
LEE E. GALLIGHER,
Plaintiff
vs.
MICHAEL ASTRUE,
COMMISSIONER OF SOCIAL
SOCIAL SECURITY,
Defendant

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No. 4:10-CV-2504
(Complaint Filed 12/8/10)
(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 Lee E. Galligher’s claim for social security
disability insurance benefits.
Galligher protectively filed his application for
disability insurance benefits on June 2, 2008. Tr. 11, 109-112,
119, 126 and 131.1

The application was initially denied by the

Bureau of Disability Determination on August 13, 2008,2
55.

Tr. 51-

On October 10, 2008, Galligher requested an administrative

hearing. Tr. 58-59.

After about 13 months had passed, a hearing

1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on April 11,
2011.
2. The Bureau of Disability Determination is an agency of the
Commonwealth of Pennsylvania which initially evaluates
applications for disability insurance benefits on behalf of the
Social Security Administration. Tr. 52.

was held before an administrative law judge on November 20, 2009.
Tr. 20-48.

On November 24, 2009, the administrative law judge

issued a decision denying Galligher’s application. Tr. 11-19.

On

January 26, 2010, Galligher filed a request for review with the
Appeals Council. Tr. 6.

On October 8, 2010, the Appeals Council

concluded that there was no basis upon which to grant Galligher’s
request for review. Tr. 1-5.

Thus, the administrative law judge’s

decision stood as the final decision of the Commissioner.
Galligher then filed a complaint in this court on
December 8, 2010.

Supporting and opposing briefs were submitted

and the appeal3 became ripe for disposition on July 11, 2011, when
Galligher elected not to file a reply brief.
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 Galligher meets the insured status requirements of
the Social Security Act through December 31, 2012. Tr. 11 and 13.
Galligher was born in the United States on March 3,
1956. Tr. 50, 109 and 126.

Although Galligher attended special

3. 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.
2

education classes, he graduated from high school in 1975 and can
read, write, speak and understand the English language. Tr. 42,
134 and 142.
Galligher has a lengthy history of work and earnings.
Tr. 121.

His past relevant employment4 was as a school custodian.

Tr. 136. The custodian position was described by a vocational
expert as semi-skilled, medium work.5 Tr. 43.

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

Records of the Social Security Administration reveal
that Galligher had earnings in the years 1972 through 2008. Tr.
121.

In 2008 his earnings were $6962.23. Id.

From 1993 through

2007, Galligher’s earning never fell below $24,500.00. Id.
Galligher’s total earnings from 1972 through 2008 were
$706,943.01. Id.
Galligher claims that he became disabled on June 16, 2007,6

(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.
6. Galligher was 51 years of age on the alleged disability onset
date and 53 years of age on the date of the administrative law
judge’s decision. Galligher was considered a “person closely
approaching advanced age.” 20 C.F.R. § 404.1563(d). The Social
Security Administration considers that such age “along with a
severe impairment(s) and limited work experience may seriously
affect [the person’s] ability to adjust to other work.” Id.
Contained within the Social Security regulations are grids
or tables which lists Rules 201.01 through 203.31 in the left
hand column, also known as the Medical-Vocational Rules. These
grids or tables are found at 20 C.F.R. pt. 404, subpt. P, app. 2.
There are grids or tables for sedentary, light and medium work.
The Social Security regulations provide that “where the findings
of fact made with respect to a particular individual’s vocational
factors and residual functional capacity coincide with all of the
criteria of a particular rule, the rule directs a conclusion as
to whether the individual is or is not disabled.” Rule 200.00.
In the right hand column of the grid or table is set forth the
4

because of a cardiac condition, diabetes, obesity and sleep apnea.
Doc. 7, Plaintiff’s Brief, p. 2. Galligher stopped working as a
custodian in June, 2007, and went on sick and annual leave. Tr. 144.
He then returned to work as custodian for four full days and four
half days in March 2008. Id.

This brief return to work was followed

by additional sick and annual leave. Id.
since March, 2008. Id.

Galligher has not worked

The record also reveals that Galligher had a

work-related injury in March, 2007, for which he received worker’s
compensation benefits. Tr. 104-108 and 143.
For the reasons set forth below we will affirm the decision
of the Commissioner denying Galligher’s application for disability
insurance benefits.
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

“Decision” as to whether a claimant is “disabled” or “not
disabled.”
If all of the criteria of particular Rule are met
“[t]he existence of jobs in the national economy is reflected in
the ‘Decisions’ shown in the rules, i.e., in promulgating the
rules, administrative notice has been taken of the numbers (sic)
of unskilled jobs that exist throughout the national economy at
the various functional levels. . . Thus, when all factors
coincide with the criteria of a rule, the existence of such jobs
is established.“ Rule 200.00(b).
Under certain circumstances an individual “closely
approaching advanced age” is automatically considered disabled
pursuant to the Medical-Vocational Rules. Those rules are not
applicable with respect to Galligher’s present application.
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(3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.
1995).

However, our review of the Commissioner’s findings of fact

pursuant to 42 U.S.C. § 405(g) is to determine whether those findings
are supported by "substantial evidence."

Id.; Brown v. Bowen, 845

F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064
(3d Cir. 1993).

Factual findings which are supported by substantial

evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are
supported by substantial evidence, we are bound by those findings,
even if we would have decided the factual inquiry differently.”);
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact
by the Secretary must be accepted as conclusive by a reviewing court
if supported by substantial evidence.”);

Keefe v. Shalala, 71 F.3d

1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th

Cir. 1990).
Substantial evidence “does not mean a large or considerable
amount of evidence, but ‘rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v.
Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

Substantial

evidence has been described as more than a mere scintilla of evidence

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but less than a preponderance.

Brown, 845 F.2d at 1213.

In an

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

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

42 U.S.C. § 432(d)(1)(A).

Furthermore,

[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in
evaluating claims for disability insurance benefits.
§404.1520; Poulos, 474 F.3d at 91-92.

See 20 C.F.R.

This process requires the

Commissioner to consider, in sequence, whether a claimant (1) is
engaging in substantial gainful activity,7 (2) has an impairment
that is severe or a combination of impairments that is severe,8 (3)

7. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further.
8. 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). If a claimant has no
impairment or combination of impairments which significantly
limits the claimant’s physical or mental abilities to perform
8

has an impairment or combination of impairments that meets or equals
the requirements of a listed impairment,9 (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.10
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social Security

Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and
continuing basis contemplates full-time employment and is defined as

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). 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 and 404.1545(a)(2).
9. 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. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to prevent
an individual from doing any gainful activity, regardless of his
or her age, education, or work experience.” Section 404.1525 also
explains that if an impairment does not meet or medically equal
the criteria of a listing an applicant for benefits may still be
found disabled at a later step in the sequential evaluation
process.
10. If the claimant has the residual functional capacity to do his
or her past relevant work, the claimant is not disabled.
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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;

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).”).

DISCUSSION
The administrative law judge at step one of the sequential
evaluation process found that Galligher had not engaged in
substantial gainful work activity since June 16, 2007, the alleged
disability onset date. Tr. 13.
At step two of the sequential evaluation process, the
administrative law judge found that Galligher had the following
severe impairments: “coronary artery disease, status post coronary
artery bypass graft, hypertension, type II diabetes mellitus, morbid
obesity, obstructive sleep apnea, repair of rotator cuff tear.” Tr.
13.
At step three of the sequential evaluation process the
administrative law judge found that Galligher’s impairments did not
individually or in combination meet or equal a listed impairment. Tr.
13.
At step four of the sequential evaluation process the
administrative law judge found that Galligher could not perform his

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prior relevant medium work as a school custodain but that he had the
residual functional capacity to perform light work as
defined in [the regulations]. The individual may need to
break from any prolonged standing or walking, either by
change of task or the opportunity to sit in the course of
that job. The lifting and carrying capacity would be
within the ranges defined by the dictionary of occupational
titles for light exertional work. The other
thing that would be a primary restriction would be bending
below the waist; it should be occasional bending at best.
With the dominant upper extremity any kind of repetitive
reaching overhead would be prohibited although some
frequent capacity may be there. Otherwise, the general
handling, grasping, capacity remains intact for at least
frequent on a bilateral basis with the upper extremities.
There may be some visual issues with respect to reading or
distance reading and so the general, primary mode of
communication should be oral and not reading or writing.
Likewise, the job itself should not involve . . .
frequent, detailed, fine visual discrimination, such as
looking into a microscope . . . or looking at stiching
for . . . quality control . . . Generally speaking,
because of the special education history, we ought to be
looking at more in the very low level, semi-skilled at
best, and perhaps toward the unskilled range of work
activity.
Tr. 14.

In setting this residual functional capacity, the

administrative law judge relied on the opinion of Anne C. Zaydon,
M.D., who reviewed Galligher’s medical records on behalf of the
Bureau of Disability Determination. Tr. 568-573.

Dr. Zaydon

concluded that Galligher had the physical exertional abilities to
engage in a limited range of light work consistent with the
administrative law judge’s determination.11 Id.

11. The administrative law judge actually imposed additional
limitations/requirements which Dr. Zaydon did not find necessary,
such as a sit/stand option and limitations relating to the use of
the upper extremities.
11

Based on the above residual functional capacity and the
testimony of a vocational expert, the administrative law judge found
that Galligher could perform unskilled, light work as a bench type
inspector, packager and assembler, and that there were a significant
number of such jobs in the regional, state and national economies.
Tr. 18.
The administrative record in this case is 739 pages in
length, primarily consisting of medical and vocational records.
Galligher argues that because there is “no evidence of record” that
Galligher retains the residual functional capacity for light work
the administrative law judge erred by so finding. Galligher also
argues that the administrative law judge inappropriately considered
Galligher’s credibility.
We have thoroughly reviewed the record in this case and
find no merit in Galigher’s arguments. The administrative law judge
did an adequate job of reviewing Galligher’s vocational history and
medical records in his decision. Tr. 13-19.

Furthermore, the brief

submitted by the Commissioner thoroughly reviews the medical and
vocational evidence in this case. Doc. 8, Brief of Defendant.
Because the administrative law judge adequately reviewed the medical
evidence in his decision we will only comment on a few items.
Initially we will note that no treating or examining
physician has indicated that Galligher suffers from physical or
mental functional limitations that would preclude him from engaging

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in the limited range of light work set by the administrative law
judge in his decision for the requisite statutory 12 month period.
The alleged disability onset date in this case as noted is
June 16, 2007.

After that date there are several items of note in

the medical records.

On August 1, 2007, Galligher was seen by

Charles Benoit, M.D., regarding his coronary artery bypass surgery.
Dr. Benoit indicated that Galligher was one month status post
surgery and doing well. Tr. 310. Dr. Benoit indicated that Galligher
stated he was feeling well and had no cardiac symptoms, that he was
walking ½ mile with relative ease, taking stairs satisfactorily and
in cardiac rehabilitation. Id.

Dr. Benoit stated that the incision

had healed well and that Galligher needed to increase his activity.
Id.
A physical examination performed on October 23, 2007, by
Delia Melton, M.D., Galligher’s primary care physician, was
unremarkable. Tr. 317-319. In fact a neurological motor examination
of the upper and lower extremities on that date was normal (5/5).
Tr. 318.
Galligher did have a right rotator cuff tear surgically
repaired on October 26, 2007, by John H. Bailey, M.D., at the
Williamsport Hospital. Tr. 336-338. After that surgery Galligher was
examined by James W. Redka, M.D. Tr. 334-335. Dr. Redka found that
Galligher was alert and oriented. Id.

Dr. Redka reported that

Galligher “had known coronary disease . . . since 2001 . . . He had

13

an open three-vessel bypass this summer at Geisinger Medical Center.
He has healed from that and is said to be asymptomatic.” Tr. 334.
Dr. Redka performed a physical examination during which he observed
the following:
[Galligher] has unusual speech but seems to understand
well. . . Head, eyes, ears, nose and throat normal.
His body habitus is extremely obese. He is in no distress.
He has a bandage from his right shoulder surgery clearly
in place. There is not any excess of bleeding. . . .
Extremities show trace edema consistent with his obesity
only. . . .
Tr. 335.
On November 6, 2007, Galligher had a follow-up appointment
with Dr. Bailey regarding his rotator cuff surgery. Tr. 332.

Dr.

Bailey noted that Galligher was doing well, the wound was “nicely
healed,” and he was neurovascularly intact distally. Id.
11, 2008, Galligher was doing reasonably well. Id.

By January

Over the next

several months Galligher continued to improve. Id.
At the administrative hearing held in this case Galligher
did not mention any serious difficulty with or pain related in his
right shoulder and in the brief submitted to this court, Galligher
did not state that he had a shoulder condition which limited his
ability to work. Also, physical therapy records reveal that by
January 2008, Galligher had significant improvement in his range of
motion (forward flexion, abduction, external rotation and internal
rotation) of his shoulder. Tr. 359.
On May 14, 2008, Donald T. Nardone, M.D., a treating
14

cardiologist, reported that Galligher’s “cardiac symptoms are well
controlled at time of last visit other than his edema and shortness
of breath which are probably related more to his obesity.” Tr. 385.
Dr. Nardone encouraged Galligher to engage in aerobic activity for
thirty to sixty minutes daily. Tr. 536.
On March 17, 2009, Galligher had an echocardiogram study
performed at Susquehanna Cardiology Associates, located in
Williamsport. Tr. 584-585.

The study was interpreted to be normal,

including a normal left ventricle ejection fraction of 60 to 65%.12
Id.
The medical records do reveal that Galligher’s blood sugar
levels frequently are not well-controlled. Tr. 534-536.

Galligher

testified that he is not very compliant with his diabetes regimen,
but that if he would be more careful, his blood sugars would be
better. Tr. 32.

However, Galligher’s primary care physician noted

that Galligher condition has been improving and that he is
exercising three times per week. Tr. 517.
Galligher testified at the administrative hearing that he
drives, and that he drove to the hearing, which took a little over

12. “Ejection Fraction is a measurement of the percentage of blood
leaving your heart each time it contracts. . . Because the left
ventricle is the heart’s main pumping chamber, ejection fraction
is usually measured only in the left ventricle (LV). A normal LV
ejection fraction is 55 to 70 percent.” Martha Grogan, M.D.,
Ejection fraction: What does it measure?, MayoClinic.com,
http://www.mayoclinic.com/health/ejection-fraction/AN00360
(Last visited February 28, 2012).
15

one hour. Tr. 27.

Galligher lives with three sisters, but is

relatively independent, including fixing his own meals, loading and
unloading the dishwasher, doing his own laundry, taking out the
garbage and mowing the lawn. Tr. 27-29.
The administrative law judge relied on the opinion of Dr.
Zaydon, the state agency physician. The administrative law judge’s
reliance on the opinion of Dr. Zaydon was appropriate. See Chandler
v. Commissioner of Soc. Sec.,

F.3d.

, 2011 WL 6062067 at *4 (3d

Cir. Dec. 7. 2011)(“Having found that the [state agency physician’s]
report was properly considered by the ALJ, we readily conclude that
the ALJ’s decision was supported by substantial evidence[.]”).
We are satisfied that the administrative law judge
appropriately took into account all of Galligher mental and physical
limitations in the residual functional capacity assessment. The
administrative law judge concluded that Galligher could engage in a
limited range of light work.

That conclusion is supported by the

opinion of the state agency physician.
The administrative law judge stated that Galligher’s
statements concerning the intensity, persistence and limiting effects
of his symptoms were not credible to the extent that they were
inconsistent with the ability to perform a limited range of
unskilled, light work. Tr. 19.

The administrative law judge was not

required to accept Galligher’s claims regarding his physical
limitations. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.

16

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.”).

Because

the administrative law judge observed Galligher when he testified at
the hearing on September 10, 2009, the administrative law judge is
the one best suited to assess the credibility of Galligher.
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: February 28, 2012

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