PROPER v. ASTRUE

Filing 15

MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 11 Plaintiff's Motion for Summary Judgment is DENIED and the 13 Defendant's Motion for Summary Judgment is GRANTED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue, Commissioner of Social Security, and against Plaintiff, Sharon A. Proper. The clerk is directed to mark the case closed. Signed by Judge Sean J. McLaughlin on 11/7/2011. (rlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHARON A. PROPER,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Civil Action No. 10-238 Erie

MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
I.

INTRODUCTION

Sharon A. Proper (“Plaintiff”), commenced the instant action pursuant to 42 U.S.C. §
405(g), seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”), denying her claims for disability insurance benefits (“DIB”) under Title II of
the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed her application on March 31,
2008 alleging disability since October 22, 2007 due to back and leg impairments (AR 116-118;
131; 135).1 Her application was denied, and following a hearing before an administrative law
judge (“ALJ”) held on November 2, 2009 (AR 22-59), the ALJ found that Plaintiff was not
entitled to a period of disability or DIB under the Act (AR 9-18). Plaintiff‟s request for review
by the Appeals Council was denied (AR 1-5), rendering the Commissioner‟s decision final under
42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before
the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow,
Plaintiff‟s motion will be denied and the Commissioner‟s motion will be granted.

1

References to the administrative record [ECF No. 9], will be designated by the citation “(AR ___)”.

1

II.

BACKGROUND

Plaintiff was 36 years old on the date of the ALJ‟s decision and has a high school
education earned through a G.E.D. (AR 16; 29). She has past relevant work experience as a
cashier, laborer, light mechanic and parts driver (AR 136).
Historically, Plaintiff suffered a work-related back injury in June 2005 (AR 36; 135;
218). An MRI of her lumbosacral spine dated June 26, 2005 revealed evidence of a moderate
central disc protrusion at the L5-S1 level with minimal nerve root impingement and a small disc
protrusion at the L4-L5 level with minimal nerve root impingement without stenosis or neural
foraminal narrowing (AR 201; 271). Plaintiff was treated with medications and physical
therapy, but continued to suffer back pain (AR 349-363). In August 2006 she was restricted to
light duty work by her physician (AR 351).
On October 11, 2006, an MRI revealed the same disc herniations as seen in the June 2005
MRI, but there was a significant increase in the herniation at the L5-SI level, with some
impingement on both sides of the descending nerve roots (AR 296). Plaintiff was referred for a
pain management evaluation on October 17, 2006 and she was assessed with lumbar
radiculopathy and lumbar disc displacement (AR 201-202).
Plaintiff was also referred to a neurosurgeon for evaluation and on November 6, 2006,
Matt El-Kadi, M.D., Ph.D. performed a left L5-S1 hemilaminectomy/microdiskectomy (AR
215). At her post-operative visit on November 16, 2006, Plaintiff reported a 90 percent
improvement in her symptoms (AR 215). Dr. El-Kadi reported that her physical examination
was unremarkable and he was “very pleased” with her progress (AR 215). Plaintiff was to
undergo six weeks of physical therapy and then return to work without restrictions (AR 215).
Plaintiff was followed post-surgery by Bernard Proy, M.D., her primary care physician.
On December 20, 2006 Dr. Proy concluded that Plaintiff could perform sedentary work (AR
330). On December 27, 2006, Mary Evelyn Pifer, RPA-C from Dr. Proy‟s office, opined that
Plaintiff had no work restrictions (AR 331).
On January 2, 2007, Plaintiff reported to Dr. Proy that she had completed her physical
therapy and was performing home exercises (AR 327). She complained of some back
2

discomfort with occasional tingling in the left lower extremity and persistent numbness of her
right lower extremity (AR 327). On physical examination, Dr. Proy found her back had
improved range of motion and her gait was “okay” (AR 327). She was to return to a workhardening program with limited restrictions (AR 327).
On March 2, 2007 Plaintiff reported to Dr. Proy that she experienced back discomfort
while shoveling snow (AR 319). Dr. Proy noted that she was no longer employed and was
thinking of switching to a non-physical office job (AR 319). On physical examination, Dr. Proy
found Plaintiff had a “fair-to-full” range of motion and there was no neurological change (AR
319). Plaintiff had no complaints on March 21, 2007 and April 30, 2007 relative to her back and
her physical examinations were unremarkable (AR 324; 326).
On October 30, 2007, Plaintiff complained of back pain and Dr. Proy found no evidence
of numbness, weakness or paresthesias of her legs on physical examination (AR 321). He
prescribed a muscle relaxant (AR 321). On November 13, 2007, Dr. Proy noted that her
condition had improved and she was experiencing less back pain, but neurologically she had the
“usual leg weakness” (AR 319). Dr. Proy increased her muscle relaxant dosage (AR 319).
On February 27, 2008, Plaintiff returned to Dr. Proy‟s office and complained of increased
back pain and requested pain medication in order to manage her acute symptoms (AR 318).
Jared Varner, PA-C, noted that Plaintiff had a “chronic history of back pain, comp related, for
quite some time” (AR 318). On physical examination, Plaintiff walked normally without
apparent discomfort but seemed “stiff” when raising to sit on the exam table (AR 318). She
complained of tenderness to the left SI joint area on palpation with no significant tenderness to
the right (AR 318). She exhibited +2 reflexes in her lower extremities bilaterally, had negative
straight leg raise bilaterally, and her light touch sensation was intact bilaterally (AR 318). Mr.
Varner assessed her with “back pain, musculoskeletal flare” and prescribed Flexeril, ibuprofen
and Tylenol for breakthrough pain (AR 318). On March 12, 2008, Plaintiff complained of back
pain and left leg weakness with sciatia, and numbness down her right leg (AR 316). Dr. Proy
referred her for back rehabilitation (AR 316).

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On March 14, 2008, Plaintiff was evaluated by Sherrie Walker, D.O. for her complaints
of back pain (AR 313). Plaintiff reported that following her back surgery in November 2006, she
worked part time as a cashier from July 2007 until October 2007, but quit working because the
job “aggravated her back” (AR 313). Plaintiff stated that she exercised regularly, performed
stretching exercises at least twice a day and was an “avid” walker (AR 313). On physical
examination, Dr. Walker noted Plaintiff was in no acute distress (AR 313). She found Plaintiff
had “quite a bit of somatic changes” (AR 313). She had a positive left standing flexion test and a
positive left seated flexion test (AR 313). Dr. Walker noted that Plaintiff had a prominent short
right leg (AR 313). She diagnosed Plaintiff with somatic dysfunction of the cervical spine,
thoracic spine, lumbar spine, pelvis, sacrum and lower extremity (AR 313). She also diagnosed
Plaintiff with “NSAID” induced gastritis (AR 313). Dr. Walker performed osteopathic
manipulation and Plaintiff reported immediate relief in her left leg symptoms (AR 313). Her
medications were continued but Dr. Walker decreased her ibuprofen, and added Zantac for her
complaints of heartburn (AR 313).
Plaintiff returned to Dr. Walker on April 2, 2008 and reported improvement in her back
pain (AR 307). Although Plaintiff reported some leg weakness, she had only occasional back
pain that was controlled (AR 307). She indicated she was performing stretching exercises that
improved her muscle spasms (AR 307). She reported that her pain was moderately alleviated by
massage therapy and totally alleviated by muscle relaxants (AR 307). Dr. Walker noted Plaintiff
was in no apparent distress, was fully alert and oriented, appeared healthy and walked normally
(AR 307). She found Plaintiff had negative standing flexion, which was an improvement from
her last visit (AR 307). Plaintiff‟s sensation was intact to light touch and pinprick, her Achilles
and patellar “DTR‟s” were brisk and symmetrical, and she exhibited good mobility of all
extremities, but had bilateral plantar tenderness (AR 307). Plaintiff was assessed with backache
unspecified and fibromatosis plantar fascia (AR 307). Dr. Walker performed manipulative
therapy on her foot and recommended that she continue stretching exercises at home and utilize
arch support inserts (AR 307). On April 30, 2008 Plaintiff reported a 70 percent improvement in
her back pain and was observed walking with a normal gait (AR 301). Although Dr. Walker
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found some spasm of the right thoracic paraspinal muscles, Plaintiff‟s spine strength was “good,”
her sensation was intact, she exhibited good mobility in all extremities, and she had full (5/5) or
almost full (4/5) leg strength (AR 301). Dr. Walker continued her medication regimen (AR 304).
On June 23, 2008, Dilip S. Kar, M.D., a state agency reviewing physician, reviewed the
medical evidence of record and opined that Plaintiff could perform light work with postural
limitations (AR 368-374). In support of this finding, Dr. Kar summarized the medical evidence,
and noted that Plaintiff‟s daily activities mentioned throughout the record were not significantly
limited in relationship to the symptoms alleged (AR 373). He further noted that Plaintiff‟s
symptoms significantly improved following surgery, she was not currently attending physical
therapy, did not require an assistive device to walk, and had not been prescribed narcotic pain
medication (AR 373). Based on the evidence of record Dr. Kar found Plaintiff‟s statements
relative to her symptoms partially credible (AR 374).
On July 23, 2008, Plaintiff presented with back pain that was “70 percent improved,” but
was aggravated by activity, driving, lifting, pulling, pushing, squatting, or standing more than
one hour (AR 396). She further complained of right leg numbness and an “electrical hum”
through her left leg (AR 396). On physical examination, Dr. Walker noted that Plaintiff walked
with a normal gait (AR 396). She found some spasm of the right thoracic paraspinal muscles,
but Plaintiff‟s spine strength was “good,” her sensation was intact, she exhibited good mobility
in all extremities, and she had full (5/5) or almost full (4/5) leg strength (AR 396). She noted
that Plaintiff‟s mood was pleasant and her affect was normal (AR 396). She was diagnosed with
intervertebral disc disorder with lumbar myelopathy; disc disorder “other” and unspecified
lumbar region; and neuralgia neuritis and radiculitis unspecified (AR 397). Dr. Walker added
Neurontin to her medication regimen (AR 397). Plaintiff continued to complain of back pain on
July 31, 2008, but reported that she was able to get work done around the house with proper rest
at night (AR 401). Dr. Walker found tenderness and muscle spasm, and performed manipulation
therapy (AR 401). She decreased her Neurontin dosage (AR 402).
Plaintiff returned to Dr. Walker on August 25, 2008 and reported an 80 percent
improvement in her back pain (AR 404). Plaintiff was pleasant and in no apparent distress, but
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was slow to stand from a seated position (AR 405). Dr. Walker noted that Plaintiff‟s symptoms
had “improved with therapy to a steady level providing quality of life” (AR 404). Plaintiff
claimed that her back pain was aggravated by activity but not by walking (AR 404). On physical
examination, Dr. Walker found some tenderness and muscle spasm present (AR 405). She
performed manipulation therapy and continued her medication regimen A(R 405).
Plaintiff had no complaints of back pain when seen on September 4, 2008 (AR 407). On
September 24, 2008, Plaintiff presented with back pain but reported that it was 80 percent
improved and moderately alleviated with heat, home exercise, massage therapy, medication and
rest (AR 410). Plaintiff further reported sleeping better (AR 410). Her physical examination
remained unchanged from her August 25, 2008 visit (AR 411). Dr. Walker performed
manipulation therapy and continued her medications (AR 411).
Plaintiff presented for a general physical examination on October 24, 2008 and
complained of headaches interfering with her speech and ability to perform tasks (AR 414). She
further reported muscle spasms, stiffness and tenderness (AR 414). On physical examination,
Dr. Walker reported Plaintiff appeared healthy and walked with a normal gait (AR 415). Dr.
Walker found muscle spasms throughout Plaintiff‟s back and pelvic region, as well as tenderness
on palpation (AR 418). Plaintiff exhibited a full range of neck and spinal motion with no pain,
her spinal contour was normal, and she had a full range of motion bilaterally in her upper
extremities (AR 415). Plaintiff‟s left lower extremity reflexes were brisk and normal, her right
lower extremity reflexes were absent, her upper extremity reflexes were diminished bilaterally,
and she exhibited good mobility of all extremities (AR 415). Dr. Walker reported that Plaintiff‟s
mood and affect were normal, she was alert and oriented, her memory was intact, and her speech
was fluent with no aphasia (AR 415). Dr. Walker assessed Plaintiff with migraine variants and
speech disturbance; neuralgia neuritis and radiculitis unspecified; disc disorder other and
unspecified, lumbar region; lumbar intervertebral disc disorder with myelopathy; and joint and
ankle pain (AR 418). She discontinued the daytime dose of Neurontin and encouraged Plaintiff
to engage in water aerobics (AR 415). Dr. Walker performed manipulation therapy and Plaintiff
reportedly felt better thereafter (AR 418).
6

Plaintiff‟s back complaints remained the same at her November 2008 and December
2008 office visits, although she reported an 80 percent improvement in her pain (AR 421-430).
On November 7, 2008 she complained of increased pain after engaging in yard work (AR 422).
Dr. Walker advised her to continue her exercises and to utilize “caution with lawn work” (AR
422). On December 3, 2008, Plaintiff reported that her mood had improved after she
discontinued the Neurontin (AR 428). Dr. Walker found tenderness and muscle spasm on
physical examination and performed manipulation therapy which improved Plaintiff‟s symptoms
(AR 429). On December 9, 2008, Plaintiff‟s gynecologist prescribed Prozac for Plaintiff‟s
complaints of moodiness (AR 377).
Plaintiff was seen by Ms. Pifer on April 22, 2009 for her complaints of severe back pain
after engaging in “a lot of standing” over the weekend (AR 437). Physical examination revealed
tenderness on palpation, and Plaintiff had a positive straight leg raise test, but her sensation was
intact (AR 438). She was prescribed Darvocet (AR 438). On April 29, 2009, Plaintiff reported
that her symptoms had improved and she suffered only mild back pain (AR 440). Her physical
examination remained unchanged and her medications were continued (AR 441).
On July 27, 2009, Plaintiff presented with complaints of depression secondary to
financial stress (AR 445). She reported frequent crying and stress, but denied difficulty
concentrating, fatigue, suicidal thoughts or excessive worry (AR 445). Plaintiff further denied
any musculoskeletal complaints (AR 445). On mental status examination, Dr. Proy reported
Plaintiff‟s mood and affect were normal, her speech was spontaneous, her thought process was
normal and her memory was intact (AR 446). He found Plaintiff had no delusions,
hallucinations, obsessions, or suicidal thoughts (AR 446). Plaintiff‟s attention span and
concentration were normal and her judgment and insight were intact (AR 446). She was
diagnosed with depressive disorder not “[e]lsewhere” specified and prescribed Prozac (AR 446).
On August 6, 2009, Ms. Pifer authored a letter addressed “[t]o whom it may concern” and
stated “[patient] is permanently disabled” (AR 447).
On August 26, 2009, Plaintiff was seen Ms. Pifer and complained of depression, but
believed her symptoms were caused by hormonal changes (AR 449). She denied any associated
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anxiety, insomnia or difficulty concentrating (AR 449). Plaintiff also requested pain medication,
although she had no musculoskeletal complaints (AR 449). On physical examination, Plaintiff
was observed limping and she appeared in moderate discomfort (AR 450). Ms. Pifer found she
had a positive straight leg raise test on the right and tenderness in her right low back and hip (AR
450). On mental status examination, she found Plaintiff‟s mood and affect were normal, her
speech was spontaneous, her thought processes were normal, her memory, judgment and insight
were all intact, and she denied any suicidal thoughts (AR 450). Ms. Pifer further found
Plaintiff‟s attention span and concentration were normal (AR 450). She assessed Plaintiff with a
“backache” unspecified and depressive disorder not elsewhere specified (AR 450).
Plaintiff and William Reed, Ph.D., a vocational expert, testified at the hearing held by the
ALJ on November 2, 2009 (AR 22-59). Plaintiff testified that she stopped working in October
2007 due to sciatica in her back (AR 30). Plaintiff described her symptoms of depression, but
acknowledged that she had not sought mental health treatment (AR 40-41). She testified that
Prozac alleviated her symptoms and that it was her physical impairments that prevented her from
working, namely, fatigue, back pain and right leg numbness (AR 33; 41). She indicated that her
pain was constant, but she only took pain medication “when absolutely necessary” because she
cared for her minor child (AR 34). Her medication regimen at the time of the hearing consisted
of an over the counter pain medication, a stomach medication, Prozac and an allergy medication
(AR 35). Plaintiff stated that approximately one month prior to the hearing she took a low dose
of Darvocet for one week due to back pain (AR 35). Plaintiff performed stretching exercises on
a daily basis and avoided exerting herself (AR 37). Plaintiff claimed that she needed to lie down
daily for at least one hour in order to manage her pain and had trouble sleeping at night (AR 45).
Plaintiff testified that she had a driver‟s license but was limited in her ability to drive due
to right leg numbness (AR 29; 38). She stated she could sit for at least one hour, stand for at
least 15 to 20 minutes, walk for at least 20 to 25 minutes, and lift up to 20 pounds (AR 38-40).
Plaintiff further stated that she had problems with climbing, squatting, twisting and bending (AR
39-40). Plaintiff testified that she was able to perform household chores such as folding laundry,
cooking, washing the dishes, running the vacuum cleaner and grocery shopping (AR 43-44).
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Plaintiff further testified that she watched television, read, quilted, enjoyed crossword puzzles
and had a “good social life” (AR 46). She further stated that she gave “cooking seminars” to her
daughter‟s girl scout troop in her home (AR 46-47). Plaintiff acknowledged that she stayed
fairly active (AR 47).
The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was limited to sedentary work with a sit/stand option involving
no more than occasional climbing, balancing, stooping, kneeling, crouching, and crawling (AR
55). That individual would further be unable to work in temperature extremes, operate foot
controls, or work in proximity to occupational hazards such as dangerous machinery, open
flames, unprotected heights, ladders and scaffolds (AR 55). The vocational expert testified that
such an individual could perform the sedentary positions of a surveillance system monitor,
sedentary assembler and sedentary laborer (AR 56).
Following the hearing, the ALJ issued a written decision concluding that Plaintiff was not
entitled to a period of disability or DIB within the meaning of the Act (AR 9-18). Her request
for an appeal with the Appeals Council was denied rendering the ALJ‟s decision the final
decision of the Commissioner (AR 1-5). She subsequently filed this action.
III.

STANDARD OF REVIEW

The Court must affirm the determination of the Commissioner unless it is not supported
by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or
considerable amount of evidence, but only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 1097, 229 (1938)); see also Richardson v.
Parales, 402 U.S. 389, 401 (1971); Ventura v. Shalala, 55 F.3d 900, 901 (3rd Cir. 1995). It has
been defined as less than a preponderance of evidence but more than a mere scintilla. See
Richardson, 402 U.S. at 401; Jesurum v. Secretary of the United States Dept. of Health and
Human Servs., 48 F.3d 114, 117 (3rd Cir. 1995). Additionally, if the ALJ‟s findings of fact are
supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402
U.S. at 390. A district court cannot conduct a de novo review of the Commissioner‟s decision
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nor re-weigh evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D.Pa. 1998); see
also Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3rd Cir. 1986) (“even where this
court acting de novo might have reached a different conclusion … so long as the agency‟s
factfinding is supported by substantial evidence, reviewing courts lack power to reverse either
those findings or the reasonable regulatory interpretations that an agency manifests in the course
of making such findings.”). To determine whether a finding is supported by substantial
evidence, however, the district court must review the record as a whole. See 5 U.S.C. § 706.
IV.

DISCUSSION

Title II of the Social Security Act provides for the payment of disability insurance
benefits to those who have contributed to the program and who have become so disabled that
they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). In order
to be entitled to DIB under Title II, a claimant must additionally establish that her disability
existed before the expiration of her insured status. 42 U.S.C. § 423(a), (c); Matullo v. Bowen,
926 F.2d 240, 244 (3rd Cir. 1990) (claimant is required to establish disability prior to expiration
of insured status); see also 20 C.F.R. § 404.131. The ALJ found that Plaintiff met the disability
insured status requirements of the Act through the date of his decision, January 8, 2010 (AR 9).
Therefore, Plaintiff must show that she was disabled on or prior to that date for purposes of
entitlement to disability insurance.
A person is “disabled” within the meaning of the Social Security Act if he or she is
unable to “engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an
individual meets this definition:
In the first two steps, the claimant must establish (1) that he is not engaged
in “substantial gainful activity” and (2) that he suffers from a severe medical
impairment. Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). If the claimant
shows a severe medical impairment, the [Commissioner] determines (3) whether
the impairment is equivalent to an impairment listed by the [Commissioner] as
creating a presumption of disability. Bowen, 482 U.S. at 141. If it is not, the
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claimant bears the burden of showing (4) that the impairment prevents him from
performing the work that he has performed in the past. Id. If the claimant
satisfies this burden, the [Commissioner] must grant the claimant benefits unless
the [Commissioner] can demonstrate (5) that there are jobs in the national
economy that the claimant can perform. Ferguson v. Schweiker, 765 F.2d 31, 37
(3rd Cir. 1985).
Jesurum, 48 F.3d at 117. The ALJ concluded that Plaintiff met the insured status requirements
of the Act through the date of his decision and that she had not engaged in substantial gainful
activity since October 22, 2007 (AR 11). The ALJ further found that her degenerative disc
disease of the lumbar spine was a severe impairment, but determined at step three that she did
not meet a listing (AR 11-12). The ALJ found that she was able to perform sedentary work but
was limited to no more than occasional climbing of ramps, stairs, ladders, ropes or scaffolds, or
balancing, stooping, kneeling, crouching and crawling (AR 12). At the final step, the ALJ
concluded that Plaintiff could perform the jobs cited by the vocational expert at the
administrative hearing (AR 17). Again, I must affirm this determination unless it is not
supported by substantial evidence. See 42 U.S.C. § 405(g).
Plaintiff challenges the ALJ‟s step three determination which requires a determination of
whether a claimant has an impairment or combination of impairments which meets or equals a
listed impairment in Appendix 1, 20 C.F.R. § 416.920(d). The Listing of Impairments describes
impairments which preclude an adult from engaging in substantial gainful activity without regard
to his or her age, education or work experience. Knepp v. Apfel, 204 F.3d 78, 85 (3rd Cir. 2000).
A claimant who meets or medically equals all of the criteria of an impairment listed in Appendix
1 is per se disabled and no further analysis is necessary. Burnett v. Comm’r, 220 F.3d 112, 119
(3rd Cir. 2000). The burden is on the claimant to present evidence in support of his or her
allegation of per se disability. Williams v. Sullivan, 970 F.2d 1178, 1186 (3rd Cir. 1992).
The ALJ concluded that Plaintiff‟s impairments did not meet or medically equal the
Listing of Impairments set forth in the regulations, finding that no treating or examining
physician offered an opinion or reported findings of listing level severity (AR 12). Plaintiff
argues in a conclusory fashion that she “easily meets” the criteria for Listing 1.04 (Disorders of
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the spine) and Listing 12.04 (Affective Disorders). See [ECF No. 12] Plaintiff‟s Brief p. 8.
Section 1.04 requires:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord, With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting or supine); or
B. Spinal arachnoiditis … or
C. Lumbar spinal stenosis resulting in pseudoclaudication ….
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04.
Plaintiff does not point to any specific record evidence in support of her contention that
she met all the criteria for Listing 1.04. Indeed, the medical evidence reveals that substantial
evidence supports the ALJ‟s conclusion that Plaintiff does not satisfy the criteria for Listing
1.04(A). At Plaintiff‟s post-operative check up on November 6, 2006, her nerve root
compression issues had resolved (AR 215). There are no diagnostic studies post-surgery
demonstrating any nerve root compression, and Plaintiff‟s motor examination and reflexes were
generally reported as intact (AR 301; 307; 318; 324; 326; 396; 415). As discussed by the ALJ, at
Plaintiff‟s physical examination on November 16, 2006, Plaintiff reported a 90 percent
improvement in her symptoms and Dr. El-Kadi reported that Plaintiff‟s physical examination
was unremarkable (AR 15; 215). The ALJ observed that Plaintiff‟s physical examinations
revealed either an improved range of motion or no limitation in the motion of her spine (AR 15;
301; 319; 327; 396; 415). The ALJ examined Plaintiff‟s physical therapy treatment notes, and
observed that on November 20, 2006 Plaintiff was “moving fluidly” and reported minimal pain
(AR 13; 222). The ALJ noted that as of January 2007 the Plaintiff reported that her gait was
“okay” (AR 15; 327). He also noted that the Plaintiff testified she could walk for at least 20 to
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25 minutes (AR 13; 38-40). The ALJ observed that a treatment noted dated October 30, 2007
indicated no evidence of numbness, weakness or paresthesias of the legs (AR 15; 321). The ALJ
found that Plaintiff consistently reported an improvement in her back pain (AR 15; 307; 319),
Dr. Walker noted Plaintiff‟s pain was 70 percent improved in April 2008 (AR 15; 301), and
between August 25, 2008 and December 3, 2008, Plaintiff reported her pain was 80 percent
improved (AR 15-16; 404). When seen by Dr. Walker on April 22, 2009, the ALJ observed that
Plaintiff exhibited no signs of apparent distress, and her physical examination revealed only
tenderness to palpation of her lower back (AR 16; 438). While Plaintiff did exhibit positive
straight leg raise testing intermittently (AR 313; 438; 441; 450), she walked without an assistive
device, she generally had a normal gait, and she displayed good mobility in all her extremities
(AR 301; 307; 318; 327; 396; 415; 438; 441). Finally, substantial evidence supports the ALJ‟s
conclusion that Plaintiff did not meet the criteria for Listing 1.04(B) or Listing 1.04(C). There is
no diagnosis of spinal arachnoiditis, and the record reflects that Plaintiff had the ability to
ambulate effectively (AR 301; 307; 318; 327; 396; 415), even describing herself as an “avid
walker” (AR 313).2
2

In this case the ALJ did not address a specific Listing, but as previously mentioned, merely stated: “The claimant
does not have an impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 4041525 and 404.1526). No
treating or examining physician has either offered an opinion or reported findings of listing level severity.” (AR
12). This conclusory statement arguably falls short of the requirement enunciated in Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 119-20 (3rd Cir. 2000), that an ALJ‟s conclusory statement that an impairment did not match or is not
equivalent to a listed impairment is insufficient. However, in Jones v. Barnhart, 364 F.3d 501, 504-05 (3rd Cir.
2004), the Third Circuit held that the failure of an ALJ to analyze a specific listed impairment did not require a
remand as long as the ALJ‟s decision, when read as a whole, showed that the ALJ considered the appropriate facts
when deciding that a claimant did not meet a Listing. See also Scuderi v. Comm’r of Soc. Sec., 302 Fed. Appx. 88,
90 (3rd Cir. 2008) (ALJ not required to specifically mention any listed impairment provided that the ALJ‟s decision
clearly analyzes and evaluates the relevant medical evidence as it relates to the Listing); Lopez v. Comm’r of Soc.
Sec., 270 Fed. Appx. 119, 122 (3rd Cir. 2008) (ALJ‟s failure to discuss specific Listing was not reversible error
under Jones because the ALJ “analyzed all the probative evidence and explained his decision sufficiently to permit
meaningful judicial review.”); Klangwald v. Comm’r of Soc. Sec., 269 Fed. Appx. 202, 204 (3rd Cir. 2008) (“After
broadly concluding that [the claimant] „has no impairment, which meets the criteria of any of the listed
impairments,‟ the ALJ followed this conclusion with a searching review of the medical evidence. Under our
precedents, this is sufficient.”); Scatorchia v. Comm’r of Soc. Sec., 137 Fed. Appx. 468, 471 (3rd Cir. 2005) (holding
that ALJ‟s step three explanation was adequate where the ALJ “clearly and fully evaluated and explained the
medical evidence set forth in the record.”). Here, given the ALJ‟s thorough review of the medical evidence as it
relates to the Listing, and in light of the above cases, any “error” in his step three analysis is harmless and no remand
is necessary. See Rivera v. Comm’r of Soc. Sec., 164 Fed. Appx. 260, 263 (3rd Cir. 2006) (affirming the ALJ‟s

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Plaintiff‟s argument that she met criteria for Listing 12.04 (Affective Disorders) fares no
better. Again, Plaintiff does not point to any evidence of record to support her contention that
she met the requirements of this Listing. The ALJ did not, however, reach step three of the
evaluation process because he concluded that Plaintiff‟s depression was not a “severe”
impairment at step two. Therefore, the issue is whether substantial evidence supports this
finding.
An impairment is severe if it “significantly limits [the individual‟s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work activities are “the
abilities and aptitudes to do most jobs.” 20 C.F.R. § 404.1521(b). Examples of these mental
abilities include understanding, carrying out and remembering simple instructions; the use of
judgment; responding appropriately to supervision, co-workers and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(3)-(6). A non-severe
impairment is a “slight abnormality … which would have no more than a minimal effect on an
individual‟s ability to work,” irrespective of age, education or work experience. Bowen v.
Yuckert, 482 U.S. 137, 154 n.12 (1987).
Here, the ALJ found that Plaintiff had only mild restrictions of activities of daily living;
mild difficulties in social functioning; mild difficulties in maintaining concentration, persistence
or pace; and no repeated episodes of decompensation of an extended duration (AR 11-12). I find
substantial evidence supports the ALJ‟s conclusions in this regard. Plaintiff testified to a wide
variety of daily activities, including the performance of household chores, such as folding
laundry, cooking, washing dishes, running the vacuum cleaner and grocery shopping (AR 4344). Plaintiff further testified that she read, watched television, quilted and enjoyed crossword
puzzles (AR 46). In terms of her social functioning, Plaintiff testified that she had a “good social
life” and gave “cooking seminars” to her daughter‟s girl scout troop (AR 46-47), and there was
no evidence of an inability to get along with supervisors or co-workers. With respect to her
ability to maintain concentration, persistence or pace, Plaintiff specifically denied suffering from
conclusory step three analysis finding that any error was “harmless” in light of the abundant evidence supporting the
ALJ‟s finding); White v. Astrue, 2011 WL 463058 at *9 n.1 (D.N.J. 2011) (holding that even if the court concluded
that the ALJ‟s step three discussion was conclusory, “such statement would be harmless in light of the record.”).

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any difficulties in these areas (AR 445; 449), and mental status examinations consistently
revealed that her affect and mood were normal, she was alert, oriented and cooperative, she was
not suicidal or homicidal, and her attention span, concentration and judgment were normal (AR
446; 450). Finally, the record is devoid of any episodes of decompensation. Plaintiff conceded
that medication resolved her depressive symptoms and acknowledged that it was her physical
impairments that precluded her from working (AR 33; 41). In light of this evidence, the ALJ
properly concluded that Plaintiff did not have a severe mental impairment.
Plaintiff next claims that the ALJ erred in concluding that no treating or examining
physician ever reported any sustaining disabling limitations or restricted Plaintiff from working
in light of Ms. Pifer‟s opinion dated August 6, 2009 stating that she was “permanently disabled.”
See [ECF No. 12] Plaintiff‟s Brief pp. 8-9. However, since Ms. Pifer is a physicians‟ assistant
and not a physician, the ALJ‟s finding in this regard was accurate.3
Plaintiff also challenges the ALJ‟s credibility determination. An ALJ must give serious
consideration to a claimant‟s subjective complaints of pain, even when these complaints are not
completely supported by objective evidence. Mason v. Shalala, 994 F.2d 1058, 1067 (3rd Cir.
1993). There must be medical signs and laboratory findings that demonstrate the existence of a
medical impairment that could reasonably be expected to produce the pain alleged and which,
when considered with all of the other evidence, leads to a conclusion that the claimant is
disabled. Green v. Schweiker, 749 F.2d 1066, 1070-71 (3rd Cir. 1984); 20 C.F.R. § 404.1529(a).
In addition to the objective medical evidence, Social Security Ruling (“SSR”) 96-7p and
the regulations provide that the ALJ should consider other factors, such as the claimant‟s own
statements, the claimant‟s daily activities, the treatment and medication the claimant has
received, any statements by treating and examining physicians or psychologists, and any other
relevant evidence in the case record. See 20 C.R.R. § 404.1529(c); SSR 96-7p, 1996 WL 374186
at *2. Finally, the ALJ as the finder of fact can reject, partially or fully, subjective complaints if
3

The ALJ‟s refusal to have afforded Ms. Pifer‟s opinion any weight is independently supportable on the basis that it
lacked any explanation. See 20 C.F.R. § 404.1527(d)(3) (stating that “[t]he better an explanation a source provides
for an opinion, the more weight [the ALJ] will give that opinion”) (emphasis added); Anderson v. Astrue, 2011 WL
2551550 at *3 (M.D.Pa. 2011) (same).

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he finds them not credible based on other evidence in the record. See Baerga v. Richardson, 500
F.2d 309, 312 (3rd Cir. 1974). The ALJ is empowered to evaluate the credibility of witnesses and
his determination is entitled to deference by this Court. See Van Horn v. Schweiker, 717 F.2d
871, 873 (3rd Cir. 1983).
Here, the ALJ considered the subjective complaints of Plaintiff and determined that,
although her medically determinable impairments could reasonably be expected to produce the
alleged symptoms, her statements concerning the intensity, persistence and limiting effects of her
symptoms were not credible to the extent they were inconsistent with his RFC assessment (AR
13). The ALJ‟s decision reflects that in assessing Plaintiff‟s credibility, the ALJ considered the
objective medical evidence, the medical opinions, and Plaintiff‟s own recitation of her daily
activities (AR 13-16). I conclude that substantial evidence supports the ALJ‟s credibility
determination.
V.

CONCLUSION

For the reasons discussed above, Plaintiff‟s motion for summary judgment will be denied
and Defendant‟s motion for summary judgment will be granted. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHARON A. PROPER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Civil Action No. 10-238 Erie

ORDER
AND NOW, this 7th day of November, 2011, and for the reasons set forth in the
accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that Plaintiff‟s Motion for Summary Judgment [ECF. No.
11] is DENIED, and Defendant‟s Motion for Summary Judgment [ECF No. 13] is GRANTED.
JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue, Commissioner of
Social Security, and against Plaintiff, Sharon A. Proper.
The clerk is directed to mark the case closed.

s/ Sean J. McLaughlin
United States District Judge

cm:

All parties of record

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