WARDELL v. ASTRUE

Filing 20

MEMORANDUM ORDER: IT IS HEREBY ORDERED that the Plaintiff's Objections 18 to the Report and Recommendation are OVERRULED. IT IS FURTHER ORDERED that the Plaintiff's Motion for Summary Judgment 11 is DENIED, the Defendant's Motion for Summary Judgment 15 is GRANTED, and the decision of the ALJ is hereby AFFIRMED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue, Commissioner of Social Security, and against Plaintiff, Michael Dejong Wardell. The Report and Recommendation 17 of Magistrate Judge Baxter, filed on January 9, 2013, is adopted as the opinion of the Court. The Clerk is directed to mark the case closed. Signed by Judge Sean J. McLaughlin on 2/14/2013. (rlh)

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

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Civil Action No. 12-83 Erie

MEMORANDUM ORDER
This social security action was received by the Clerk of Court on March 23, 2012
and was referred to United States Magistrate Judge Susan Paradise Baxter for report
and recommendation in accordance with the Magistrates Act, 28 U.S.C. ' 636(b)(1),
and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
The Magistrate Judge's Report and Recommendation [ECF No. 17], filed on
January 9, 2013, recommended that: the Plaintiff’s Motion for Summary Judgment [ECF
No. 11] be denied, the Defendant’s Motion for Summary Judgment [ECF No. 15] be
granted, and the decision of the administrative law judge (“ALJ”) be affirmed. The
parties were allowed fourteen (14) days from the date of service to file objections, and
Plaintiff filed Objections on January 28, 2013 [ECF No. 18] and the Defendant filed a
Response on February 8, 2013. [ECF No. 19]. After de novo review, and for the
reasons that follow, we will overrule the Plaintiff’s Objections, adopt the Report and
Recommendation, and affirm the decision of the Commissioner.1
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When a party makes a timely and specific objection to a portion of a report and recommendation of a
Magistrate Judge, the district court engages in de novo review of the issues raised on objection. 28
U.S.C. § 636(b)(1); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In so doing, the
court may “accept, reject, or modify, in whole or in part, the findings and recommendations” contained in
the report. 28 U.S.C. § 636(b)(1). The court may also, in the exercise of sound judicial discretion, rely on
the Magistrate Judge’s proposed findings and recommendations. See United States v. Raddatz, 447
U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

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The procedural history, factual background, and applicable standard of review of
this case are set forth in detail in the Report and Recommendation and will be recited
here only as necessary to address the issues raised in the Plaintiff’s Objections.2
Plaintiff first objects to the Magistrate Judge’s conclusion that the ALJ’s residual
functional capacity (“RFC”) determination with respect to his alleged physical
impairments was supported by substantial evidence. “‘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).’” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d
Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999); see also 20
C.F.R. § 416.945(a). An individual claimant’s RFC is an administrative determination
expressly reserved to the Commissioner. 20 C.F.R. § 416.927(e)(2). In making this
determination, the ALJ must consider all the evidence before him. Burnett, 220 F.3d at
121. The ALJ described the Plaintiff’s residual functional capacity as follows:
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity (RFC) to perform medium work (20 CFR
416.967(c)) that does not require anything more than the most basic
reading and writing; that does not require more than the most rudimentary
mathematical calculations (i.e. simple addition and subtraction); that is
performed in a temperature controlled environment; that is limited to
simple, routine, and repetitive tasks, not performed in a fast-paced
production environment, involving only simple, work-related decisions, and
in general, relatively few work place changes; and that does not involve
high levels of stress (i.e. requiring independent decision making); and that
involves no interaction with the general public and only superficial
interaction with supervisors and co-workers.
(AR 15-16).
Plaintiff contends that the ALJ’s physical RFC assessment with respect to his
exertional limitations is not supported by substantial evidence because the ALJ failed to
obtain an RFC assessment from his treating physician, relying on Ennis v. Astrue, 2013
WL 74375 (M.D.Pa. 2013). In Ennis, the claimant alleged disability due to degenerative
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References to the administrative record [ECF No. 7], will be designated by the citation “(AR ___)”.

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disease of the lumbar spine. Id. at *2. The claimant’s treating physician, Dr. Kraynak,
whom she saw on a monthly basis, reported that she had limited lumbar range of
motion and a wide stiff gait, and was prescribed Vicodin, a narcotic, for pain. Id. at *3.
Dr. Kraynak opined that the claimant suffered from degenerative disc disease and
neuropathy, and that she was “totally and permanently disabled from any and all
employment.” Id. at *3. The record did not contain an RFC assessment from a state
agency physician. Id. The district court remanded the case, concluding that the ALJ
erred in rejecting the opinion of Dr. Kraynak without pointing to any contrary medical
opinion. Id. at *6. The court noted that the ALJ’s findings that the claimant did not
exhibit an altered gait, limitation of motion, or local morbid changes were “clearly
erroneous” since the record reflected several appointments where these findings were
recorded. Id. at *8. The court concluded that the record was insufficiently developed for
the ALJ to reject the opinion of Dr. Kraynak. Id.
The present case is factually distinguishable from Ennis. The ALJ summarized
the Plaintiff’s medical records relative to his back impairment, and explained the basis
for his RFC assessment as follows:
The claimant alleges having back pain that has steadily worsened over the
years, and he states that this prevents him from working. However, I do
not find support in the treatment records to indicate limitations that would
preclude work at the medium exertional level. In September 2008, he
complained of aches and pains, but he stated that he takes only over-thecounter Aleve to address his symptoms (Exhibit B9F). He complained of
right shoulder pain and low back pain in January 2009, but he stated that it
only worsened with “prolonged activity,” and his pain improves with the
use of Aleve. Objective findings were unremarkable with no parasthesias,
no weakness, and normal musculoskeletal and neurological examinations
(Exhibit B13F/3). A follow-up examination in April 2009 was similarly
unremarkable (Exhibit B13F/5). The claimant was referred for physical
therapy, but during his initial evaluation, he indicated his discomfort was
caused by recent activity “taking things to the curb” (Exhibit B13F/8). The
claimant did not return for treatment of his shoulder and back pain until
September 2009. At that time, he told his doctors that he had not
completed his physical therapy because he was in school to obtain his
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GED. He also told his doctor that his pain only “happens sporadically” and
it was “not a problem really now” (Exhibit B13F/9). The claimant’s
treatment records do not reflect a severity or frequency of symptoms
which would preclude work at the medium level. Insofar as he alleges
back pain which would preclude regular and continuous work within the
RFC as a result of his back pain, I find him not fully credible because such
statements are not supported by his medical record.
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No medical source opines that the claimant is more limited than
determined here[.]
(AR 16-17; 19).
Unlike the ALJ in Ennis, the ALJ in this case did not improperly reject a treating
physician’s opinion without pointing to contrary evidence, nor does the Plaintiff contend
that the ALJ’s findings with respect to his treatment records are in any way erroneous.
Moreover, Plaintiff does not point to any other medical evidence that the ALJ rejected
outright or failed to consider, nor has he articulated any functional limitations beyond
those accounted for by the ALJ in his RFC assessment. Finally, the Plaintiff’s medical
records provided a sufficient basis for the ALJ’s determination. Accordingly, we find no
error in this regard.
Plaintiff further argues that, in upholding the ALJ’s conclusion, the Magistrate
Judge improperly substituted her reasoning for that of the ALJ by relying on the prior
decision of ALJ Quigley, who found Plaintiff could perform a full range of work at all
exertional levels. [ECF No. 18] pp. 1-2. The Magistrate Judge stated, in relevant part:
… In the absence of evidence suggesting that Wardell was unable to
perform “medium” work, it was permissible for the ALJ to find that Wardell
could perform “medium” work without seeking the opinion of a medical
expert. Chandler, 667 F.3d at 362. It is worth noting that Judge Quigley,
in his decision of August 6, 2008, found Wardell to be physically capable
of performing “a full range of work at all exertional levels.” (R. at 50).
Wardell points to nothing in the record which suggests that his physical
condition deteriorated between the date of that decision and the period of
time at issue in this case. (ECF No. 13 at 10-13). In this respect, the ALJ
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gave Wardell the benefit of the doubt by restricting him to medium work.
(R. at 16-17).
[ECF No. 17] p. 12. We do not view the Magistrate Judge’s comments in this regard as
improper post hoc rational for the ALJ’s decision. As set forth above, the ALJ found that
the medical record and the Plaintiff’s testimony did not preclude work at the medium
level, and that no treating source opined otherwise (AR 16-17; 19). We view the
Magistrate Judge’s comments as simply highlighting the fact that Plaintiff failed to point
to any evidence supporting his claim of disabling physical limitations. In any event, the
ALJ adequately explained the basis for his RFC determination and his determination is
supported by substantial evidence.
Plaintiff further objects that the limitations included in the ALJ’s RFC finding are
not addressed in the Dictionary of Occupational Titles (“DOT”) 3 and the ALJ failed to
“reconcile” the vocational expert’s opinions with the information contained in the DOT.
[ECF No. 18] p. 3. Plaintiff did not raise this argument in his brief in support of his
Motion for Summary Judgment and accordingly, this argument is waived. See, e.g.,
Jimenez v. Barnhart, 46 Fed. Appx. 684, 684 (3d Cir. 2002) (“[B]ecause Appellant
raised the argument that she is entitled to a closed period of disability for the first time in
her objections to the Magistrate Judge’s Report and Recommendation, and not in her
opening brief, we deem this argument waived.”); Lewis v. Astrue, 2012 WL 1231878 at
*6 (E.D.Pa. 2012) (“Generally, issues raised for the first time in objections to a
magistrate judge’s report are deemed waived.”).
Even if the objection had not been waived, the hearing transcript reflects that the
ALJ specifically asked the vocational expert if his testimony with respect to the identified
jobs (bench assembly, production checker and document preparer) was consistent with
their descriptions in the DOT, and he responded that they were (AR 38). In any event,

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The DOT is “a publication of the United States Department of Labor that contains descriptions of the
requirements for thousands of jobs that exist in the national economy[.]” Burns v. Barnhart, 312 F.3d 113,
119 (3d Cir. 2002).

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the vocational expert testified that the Plaintiff could perform the identified jobs with the
limitations posited by the ALJ (AR 37-38).
In sum, the Plaintiff’s Objections will be overruled, we will adopt the Report and
Recommendation, and affirm the decision of the Commissioner. An appropriate Order
follows.

ORDER
AND NOW, this 14th day of February, 2013;
IT IS HEREBY ORDERED that the Plaintiff’s Objections [ECF No. 18] to the
Report and Recommendation are OVERRULED. IT IS FURTHER ORDERED that the
Plaintiff’s Motion for Summary Judgment [ECF No. 11] is DENIED, the Defendant’s
Motion for Summary Judgment [ECF No. 15] is GRANTED, and the decision of the ALJ
is hereby AFFIRMED.
JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue,
Commissioner of Social Security, and against Plaintiff, Michael Dejong Wardell.
The Report and Recommendation [ECF No. 17] of Magistrate Judge Baxter, filed
on January 9, 2013, is adopted as the opinion of the Court.
The Clerk is directed to mark the case closed.

s/

cm:

Sean J. McLaughlin
United States District Judge

All parties of record
Susan Paradise Baxter, U.S. Magistrate Judge

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