GREAVES v. ASTRUE
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 8 Plaintiff's Motion for Summary Judgment is DENIED and the 10 Defendant's Motion for Summary Judgment is GRANTED. JUDGMENT is hereby entered in favor of Michael J. Astrue, Commissioner of Social Security and against Plaintiff, Kimberly Ann Greaves. The clerk is directed to mark the case closed. Signed by Chief Judge Sean J. McLaughlin on 7/5/2103. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLY ANN GREAVES,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 12-135 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., Chief Judge.
I.
INTRODUCTION
Kimberly Ann Greaves (“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”) and
supplemental security income (“SSI) under Titles II and XVI of the Social Security Act, 42
U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed her applications on November 19, 2009,
alleging disability since January 1, 2008 due to diarrhea, breathing problems, severe migraines,
depression, degenerative eye disease, high blood pressure and high cholesterol (AR 141-144;
185; 189).1 Her applications were denied (AR 94-103), and following a hearing held on
November 12, 2010 (AR 34-64), the administrative law judge (“ALJ”) issued her decision
denying benefits on December 9, 2010 (AR 23-30). Plaintiff’s request for review by the Appeals
Council was denied (AR 1-6), rendering the Commissioner’s decision final under 42 U.S.C. §
405(g). She filed her complaint challenging the ALJ’s decision, and presently pending before
the Court are the parties’ cross-motions for summary judgment. For the following reasons,
Plaintiff’s motion will be denied and the Commissioner’s motion will be granted.
1
References to the administrative record [ECF No. 6], will be designated by the citation “(AR ___)”.
1
II.
BACKGROUND
Plaintiff was 53 years old on the date of the ALJ’s decision (AR 139). She is a high
school graduate with past relevant work experience as a cashier and a clerical assistant (AR 196).
Plaintiff was treated by Jack Yakish, M.D., from January 28, 2006 through October 14,
2009, for a variety of health complaints including, inter alia, migraine headaches and back pain
(AR 246-265). In April 2008, Plaintiff complained of migraine headaches and reported that
Imitrex was not effective in controlling her symptoms (AR 255). On August 31, 2009, Plaintiff
complained of a migraine headache and Dr. Yakish prescribed Fioricet (AR 246). On October
14, 2009, Plaintiff reported suffering from increased headaches (AR 245). Plaintiff also
occasionally complained of back pain, for which Dr. Yakish prescribed Flexeril and/or Vicodin
(AR 251).
Plaintiff began treating with Deborah Bishop, M.D. on November 12, 2009 and reported
shortness of breath upon exertion, with some intermittent shortness of breath while lying down
(AR 287). Plaintiff further reported a past history of inter alia, high blood pressure and migraine
headaches (AR 287). She indicated that she worked at a grocery store and had generally been
feeling well (AR 287). On physical examination, Dr. Bishop noted that Plaintiff was in no acute
distress, and her head, eye, ear, nose and throat examinations were within normal limits (AR
287). She found Plaintiff’s lungs were clear to auscultation, with diminished breath sounds
bilaterally (AR 287). Plaintiff’s heart examination was normal and she had no chest wall
abnormalities (AR 287). Plaintiff’s lower extremities revealed no cyanosis, clubbing or edema,
and her pulses were normal (AR 287). Dr. Bishop diagnosed Plaintiff with “chronic airway
obstruction not elsewhere classified” and “migraine with aura” (AR 287). She prescribed
Atrovent, an aerosol inhalant, for use as needed (AR 287). It was noted that Plaintiff’s other
regular medications included Crestor, Atenolol, Imitrex and occasionally, Fioricet (AR 287).
A chest x-ray dated November 16, 2009 revealed that Plaintiff’s lungs were clear
bilaterally, with no acute pulmonary disease (AR 292). Degenerative changes in the Plaintiff’s
upper thoracic spine were noted (AR 292). A report dated November 19, 2009, showed that
Plaintiff’s lab results were all within normal limits (AR 290).
2
Plaintiff returned to Dr. Bishop on November 30, 2009 and reported shortness of breath
with exertion (AR 286). On physical examination, Dr. Bishop found Plaintiff’s lungs were clear
to auscultation (AR 286). Plaintiff’s remaining physical examination remained unchanged, and
Dr. Bishop noted that Plaintiff’s lab results were good (AR 286). She added Spiriva and Proair
to Plaintiff’s medication regimen (AR 286).
On December 17, 2009, Plaintiff’s pulmonary function test showed moderate obstructive
ventilatory defect (AR 277).2 No restrictive ventilatory defect was present (AR 277).3 Plaintiff’s
room air oxygen saturation at rest was ninety-nine percent (AR 277).
Plaintiff returned to Dr. Bishop on January 4, 2010 and reported shortness of breath while
walking (AR 285). She further reported that her legs felt heavy when she walked or stood for
long periods of time at work (AR 285). Dr. Bishop reported that Plaintiff’s pulmonary function
test showed moderate obstructive lung disease, and that her room air oxygen saturation was
ninety-nine percent (AR 285). On physical examination, Dr. Bishop found Plaintiff in no acute
distress, and her head, eye, ear, nose and throat examinations were within normal limits (AR
285). Plaintiff’s lungs were clear to auscultation, her heart examination was normal, and she had
no chest wall abnormalities (AR 285). Plaintiff’s lower extremities revealed no cyanosis,
clubbing or edema, and her pulses were normal (AR 285). Plaintiff’s diagnosis and medications
remained the same (AR 285).
On January 10, 2010, Plaintiff had a non-invasive arterial examination of her lower
extremities (AR 295-296). It was noted that Plaintiff had bilateral foot and toe coldness causing
pain, with her right leg worse than her left (AR 295). She further reported that her legs ached
and were fatigued after walking half a block (AR 295). The exam showed probable mild
bilateral superficial femoral artery stenosis with no significant reduction in flow with rest,
although producing symptoms (AR 295-296). It was suggested that clinical correlation would
2
Obstructive ventilatory defect is the slowing of airflow during forced expiration. See http://medicaldictionary.thefreedictionary.com/obstructive+ventilatory+defect.
3
Restrictive ventilatory defect is a reduction in total lung capacity. See http://medicaldictionary.thefreedictionary.com/restrictive+ventilatory+defect.
3
be helpful since the Plaintiff was experiencing “significant claudicant symptoms” that were
debilitating and further evaluation was indicated (AR 296).
Plaintiff’s thoracic and lumbar x-rays dated February 5, 2010 showed diffuse osteopenia,
scoliotic curvature of the thoracic spine, and possible mild compression deformity of the T4 (AR
293). On February 17, 2010, Plaintiff reported to Dr. Bishop that she had stopped using Advair
because it caused sore throat pain (AR 283). Plaintiff continued to work at the grocery store (AR
283). Plaintiff also complained that her feet were cold (AR 283). Plaintiff’s physical
examination remained unchanged and she was prescribed Symbicort to replace the Advair (AR
283).
Plaintiff returned to Dr. Bishop on March 5, 2010 and her complaints and physical
examination remained unchanged (AR 338-339). She reportedly continued to work (AR 338).
Dr. Bishop added nebulizer therapy every four to six hours to Plaintiff’s medication regimen
(AR 337). Dr. Bishop completed a “Medical Statement Regarding Social Security Disability
Claim” and reported Plaintiff’s diagnoses were COPD, migraines, fibromyalgia, hyperlipidemia,
and peripheral vascular disease (AR 310). She stated that Plaintiff’s symptoms included
shortness of breath, fatigue, wheezing, numbness and pain in her feet, intolerance to cold, and
headaches (AR 310). She indicated that Plaintiff was unable to work (AR 310).
On a “Medical Source Statement of Claimant’s Ability to Perform Work-Related
Physical Activities” form, Dr. Bishop opined that Plaintiff could occasionally lift/carry ten
pounds, stand/walk less than two hours, and sit less than six hours (AR 311). Dr. Bishop
indicated that Plaintiff experienced fatigue requiring rest periods during the day, and needed to
frequently elevate her legs during an eight-hour workday (AR 312). She opined that Plaintiff
was limited in her pushing and pulling abilities due to peripheral vascular disease and
emphysema (AR 312). Dr. Bishop indicated that Plaintiff could never perform postural
functions, was unable to reach above chest level, and was limited in her ability to speak because
she became “breathless” (AR 312). She opined that Plaintiff needed to avoid exposure to poor
ventilation, temperature extremes, and inhalation of chemicals due to “severe” COPD (AR 312).
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Dr. Bishop also completed a document entitled “Medical Statement Regarding Pain” (AR
313). Dr. Bishop stated that Plaintiff suffered from moderate pain due to fibromyalgia and
arthritis, resulting in a loss of interest in almost all activities, sleep disturbance, decreased
energy, and difficulty breathing (AR 313). On a “Medical Statement Regarding Headaches”
form, Dr. Bishop stated that Plaintiff experienced migraine headaches about once a week, lasting
more than twenty-four hours, and was unable to work when she had a headache (AR 314). Dr.
Bishop indicated that symptoms associated with the Plaintiff’s headaches included nausea,
vomiting, photophobia, and increased noise sensitivity (AR 314).
Plaintiff returned to Dr. Bishop on March 12, 2010 and Dr. Bishop’s treatment note
entries remained essentially unchanged from Plaintiff’s last two office visits (AR 331).
Plaintiff’s physical examination was unremarkable; Dr. Bishop reported that Plaintiff was in no
acute distress, her lungs were clear to auscultation, she had a regular heart rate and rhythm, and
her chest wall was within normal limits (AR 331). Plaintiff’s extremities revealed no clubbing,
cyanosis or edema, and her pulses were normal (AR 331).
On April 6, 2010, Plaintiff was evaluated by Thomas Wittmann, M.D., at Chest Diseases
of Northwestern PA for shortness of breath complaints (AR 315). Plaintiff reported that she
smoked up to three packs of cigarettes daily for decades, but had cut back to one-half a pack
daily (AR 315). She acknowledged that she had been advised by a number of physicians to stop
smoking but was reluctant to quit for fear of weight gain (AR 315). Plaintiff complained of
breathlessness with exertion, accompanied by intermittent wheezing, usually associated with
respiratory tract infections (AR 315). On physical examination, Dr. Wittmann reported that
Plaintiff appeared “somewhat chronically ill” but was in no acute distress (AR 316). He found
Plaintiff had mild expiratory wheezing with no pleural rub4 or stridor5 (AR 316). Chest x-rays
were taken, and Dr. Wittmann found evidence of chronic airflow obstruction without interval
change from Plaintiff’s previous x-rays on November 16, 2009 (AR 317-318). Dr. Wittmann
noted that Plaintiff’s spirometry showed moderate airflow obstruction, and that a six-minute
4
Pleural rub is a friction sound heard during breathing on physical examination. See http://medicaldictionary.thefreedictionary.com/pleural+rub.
5
Stridor is a high-pitched respiratory sound. See http://medical-dictionary.thefreedictionary.com/stridor.
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walk test demonstrated mild exercise limitation (AR 317; 319). He diagnosed Plaintiff with
moderate COPD with a “significant and ongoing cigarette smoking history” (AR 317). Dr.
Wittmann noted that he spent more than fifty percent of the office visit discussing with Plaintiff
the nature of her illness and the “absolute need” for her to stop smoking (AR 317). He noted
Plaintiff was reluctant to stop but would consider doing so (AR 317). She was advised to
continue using Symbicort but to discontinue Spiriva when she began using a nebulizer (AR 317).
On May 6, 2010, Dr. Bishop prescribed Plaintiff home oxygen therapy to use during
sleep and during the daytime as needed (AR 321-323; 342).
Plaintiff returned to Dr. Bishop on September 13, 2010 and complained of diffuse pain in
her joints and muscles (AR 340). Dr. Bishop noted that Plaintiff had a history of fibromyalgia
and was taking Mobic (AR 340). Plaintiff further complained of swelling at the base of her right
thumb, exacerbated by working with clay crafting materials (AR 340). Plaintiff indicated that
she switched back to an inhaler and her breathing was stable (AR 340). She reported some
cyanosis in her toes at times (AR 340). Plaintiff reportedly continued to work (AR 340).
Plaintiff’s lungs were clear, she had a regular heart rate and rhythm, and her chest wall was
within normal limits (AR 340). Plaintiff’s extremities revealed no clubbing, cyanosis or edema,
and she had normal pulses (AR 340). Dr. Bishop diagnosed Plaintiff with COPD, osteoarthrosis,
and myalgia (AR 340). She added Gabapentin and Meloxicam to her medication regimen (AR
340).
Plaintiff and William Reed, a vocational expert, testified at the hearing held by the ALJ
on November 12, 2010 (AR 34-64). Plaintiff testified that she stopped working in January 2010
because she frequently missed work due to breathing and back problems (AR 39). She testified
that she suffered from shortness of breath, cold feet, and fatigue (AR 43). Plaintiff stated that
she used inhalers for her breathing problems (AR 44). She also used oxygen at night, but
periodically used it during the day as well (AR 44). Plaintiff testified that she suffered from
daily back pain exacerbated by walking (AR 46). She used a heating pad to alleviate the pain
and took Vicodin once a week (AR 46).
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Plaintiff further testified that she suffered from a “bad” headache once a week which
caused vomiting, noise and light sensitivity, and required her to lie down (AR 50-52). She also
suffered from less severe headaches on a weekly basis (AR 52-53). Plaintiff indicated she took
Imitrex for her headaches (AR 51). Plaintiff stated that her legs were weak and ached, and that
she elevated them during the day to alleviate ankle swelling (AR 53-54). Plaintiff testified that
she lived alone and was able to perform some household chores, but no yard work (AR 40). She
stated she could drive but only during the day (AR 40). Plaintiff indicated that she could sit for
thirty minutes, stand for no more than twenty minutes, walk one block, and lift ten pounds (AR
40-41). Plaintiff claimed that she needed to lie down two to three times a day for about one-half
hour (AR 48).
The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was able to perform light work with a sit/stand option (AR 5859). Further, the individual would need to avoid exposure to fumes, odors, dust, gasses,
chemical irritants, poor ventilation, temperature extremes, and extreme dampness and humidity
(AR 59). The vocational expert testified that such an individual could perform the Plaintiff’s
past relevant work as a clerical assistant, as well as other jobs such as a cashier, security guard,
and photocopying machine operator (AR 59-60).
Following the hearing, the ALJ issued a written decision finding that the Plaintiff was not
entitled to a period of disability, DIB or SSI within the meaning of the Act (AR 23-30). Her
request for an appeal with the Appeals Council was denied rendering the ALJ’s decision the final
decision of the Commissioner (AR 1-6). 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 (3d Cir. 1995). It has
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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 (3d 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
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 (3d 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). Title
XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly
disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A
person who does not have insured status under Title II may nevertheless receive benefits under
Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to
DIB under Title II, a claimant must additionally establish that his disability existed before the
expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that the Plaintiff met the
disability insured status requirements of the Act through March 31, 2014 (AR 25). SSI does not
have an insured status requirement.
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. §
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423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an
individual meets this definition. 20 C.F.R. §§ 404.1520; 416.920. The ALJ must determine: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the
claimant has a severe impairment or a combination of impairments that is severe; (3) whether the
medical evidence of the claimant’s impairment or combination of impairments meets or equals
the criteria listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1; (4) whether the claimant’s
impairments prevent him from performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he can perform any other work which
exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Barnhart v.
Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is determined to be unable to resume
previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given
claimant’s mental or physical limitations, age, education, and work experience, he or she is able
to perform substantial gainful activity in jobs available in the national economy. Doak v.
Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
The ALJ concluded that Plaintiff’s migraine headaches, COPD, fibromyalgia and
peripheral vascular disease were severe impairments, but determined at step three that she did
not meet a listing (AR 25-26). The ALJ found that she was able to perform work at the light
level with a sit/stand option at her discretion, but was precluded from working in environments
involving exposure to fumes, odors, dust, gases, chemical irritants, poor ventilation, temperature
extremes, and extremes of dampness and humidity (AR 26-27). At the final step, the ALJ
concluded that Plaintiff could perform her past relevant work as a clerk assistant, and other jobs
such as a cashier and security guard (AR 29). Again, we must affirm this determination unless it
is not supported by substantial evidence. See 42 U.S.C. § 405(g).
Plaintiff’s challenges relate to the ALJ’s residual functional capacity (“RFC”)
assessment. “‘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. §§ 404.1545(a); 416.945(a). An individual claimant’s RFC is an
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administrative determination expressly reserved to the Commissioner. 20 C.F.R. §§
404.1527(e)(2); 416.927(e)(2). In making this determination, the ALJ must consider all the
evidence before him. Burnett, 220 F.3d at 121. This evidence includes “medical records,
observations made during formal medical examinations, descriptions of limitations by the
claimant and others, and observations of the claimant’s limitations by others.” Fargnoli v.
Halter, 247 F.3d 34, 41 (3d Cir. 2001). Moreover, the ALJ’s RFC finding must “be
accompanied by a clear and satisfactory explication of the basis on which it rests.” Id. (quoting
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)).
The ALJ concluded that the Plaintiff could perform light work with a sit/stand option at
her discretion, without exposure to environmental irritants (AR 26-27). In making this
determination, the Plaintiff argues that the ALJ improperly rejected the opinion of Dr. Bishop,
her treating physician. See [ECF No. 9] pp. 5-16.6 Dr. Bishop opined that Plaintiff was unable
to work, and rendered an RFC assessment that essentially precluded the Plaintiff from working
(AR 310-312). The ALJ declined to accord “much weight” to Dr. Bishop’s assessment however,
finding that it was unsupported by the diagnostic studies, findings on physical examination, and
the Plaintiff’s activities (AR 29).
A treating source’s opinion concerning the nature and severity of the claimant’s alleged
impairments will be given controlling weight if the Commissioner finds that the treating source’s
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence” in the record. Fargnoli v. Halter, 247
F.3d 34, 43 (3d Cir. 2001); 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). Even when a treating
physician’s opinion is not given controlling weight, it is entitled to “great weight, especially
when [it] reflect[s] expert judgment based on a continuing observation of the patient’s condition
over a prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000)
(quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). In rejecting a treating physician’s
opinion, an ALJ may not make “speculative inferences from medical reports” and may reject “a
6
Plaintiff limits her challenges to the ALJ’s evaluation of the evidence as it relates to her COPD, migraine
headaches, and peripheral vascular disease. See [ECF No. 9] p. 16. We confine our discussion accordingly.
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treating physician’s opinion outright only on the basis of contradictory medical evidence” and
not due to his own credibility judgments, speculation or lay opinion. Plummer, 186 F.3d at 429;
Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988) (holding that “the medical judgment of
a treating physician can be rejected only on the basis of contradictory medical evidence” not
“simply by having the administrative law judge make a different judgment”). Finally, where an
ALJ chooses to reject the opinion of a treating physician, he must adequately explain in the
record his reasons for doing so. See Sykes v. Apfel, 228 F.3d 259, 266 (3d Cir. 2000); Cotter v.
Harris, 642 F.2d 700, 705-07 (3d Cir. 1981).
The ALJ found that Dr. Bishop’s opinions with respect to the Plaintiff’s COPD and
peripheral vascular disease were inconsistent with the diagnostic studies (AR 29). The ALJ
observed that Plaintiff’s pulmonary function studies disclosed only moderate obstructive disease,
and that the results of her chest x-rays had not changed appreciably since November 2009 (AR
28). The ALJ further observed that Dr. Wittmann, Plaintiff’s respiratory specialist, concluded
that Plaintiff’s respiratory condition was moderate (AR 28). The ALJ noted that with respect to
the Plaintiff’s peripheral vascular disease, her arterial studies revealed only mild findings (AR
28). We reject the Plaintiff’s contention that the ALJ improperly substituted her own
interpretation or opinion of the diagnostic tests in discrediting Dr. Bishop’s opinion. The ALJ’s
characterization of these tests was taken directly from the reports and/or the Plaintiff’s treating
physicians’ interpretation of them.
The ALJ further found that Dr. Bishop’s opinions were unsupported by her physical
examination findings, and were contradicted by the findings of Dr. Wittmann (AR 28-29). For
example, the ALJ observed that Dr. Bishop reported that the Plaintiff suffered from shortness of
breath, wheezing, cold feet and diminished pulses (AR 29). However, she noted that Dr.
Bishop’s various physical examinations and Dr. Wittmann’s report did not reveal any serious
pulmonary complications or severe vascular impairment involving the lower extremities that
would affect the Plaintiff’s ability to stand and walk in a typical day (AR 29).
The ALJ found that Dr. Bishop’s opinion with respect to the Plaintiff’s migraine
headaches was unsupported by her treatment note entries (AR 28). The ALJ observed that
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although Plaintiff alleged disability in part due to migraine headaches, the record revealed very
little documentation regarding the nature and severity of any headache disorder (AR 28).
The ALJ further observed that Plaintiff had not been hospitalized or sought emergency
room treatment for her impairments, and had not been seen by a specialist for her migraine
headache complaints (AR 28). The ALJ also considered the Plaintiff’s daily activities, noting
that she was able to drive and perform household chores (AR 28). The ALJ found it significant
that Plaintiff continued to work after her alleged onset date, which, in the ALJ’s view, further
undermined Dr. Bishop’s opinions (AR 28). The ALJ further found it significant that Plaintiff
continued to smoke cigarettes, despite being advised to quite by several physicians (AR 28).
We find that the ALJ provided sufficient grounds for discrediting Dr. Bishop’s opinion
that the Plaintiff was precluded from working and her conclusion in this regard is supported by
substantial evidence. While Dr. Bishop reported that Plaintiff was disabled due to, inter alia
“severe” COPD (AR 310), the diagnostic studies revealed that Plaintiff suffered from only
moderate COPD (277). The ALJ also pointed to the lack of clinical findings supporting Dr.
Bishop’s opinion. The medical record reflects that while Dr. Bishop found Plaintiff had
diminished breath sounds at her initial office visit on November 12, 2009 (AR 287), her
remaining examinations revealed that Plaintiff’s lungs were consistently reported as clear (AR
283; 285-286; 331; 338-339). In addition, while Dr. Wittmann found only mild expiratory
wheezing and limited diaphragmatic excursion on physical examination, no signs of
consolidation, effusion, pleural rub, or stridor were found (AR 316). Similarly, Dr. Bishop found
Plaintiff was disabled due to peripheral vascular disease, but she consistently reported that
Plaintiff’s lower extremity examination revealed no cyanosis, clubbing or edema, and her pulses
were normal (AR 283; 285-287; 331; 338-339). Likewise, Dr. Wittmann found no evidence of
clubbing, cyanosis, ankle edema, or peripheral adenopathy (AR 316).
With respect to her complaints of migraine headaches, the Plaintiff argues that the
medical evidence demonstrates that she suffers from severe headaches once a week. The
treatment notes reveal, however, that during Plaintiff’s first three office visits with Dr. Bishop,
she only reported a past medical history of migraine headaches, and it was noted that her
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medications were taken on an as-needed basis (AR 285-286). At her remaining office visits, it
was again noted that Plaintiff had a past medical history of migraine headaches for which she
was prescribed medication, and Dr. Bishop no longer diagnosed her with migraine headaches
(AR 283; 331; 338). Thus, while the record reflects the Plaintiff was prescribed medication for
migraine headaches on an as-needed basis, there is no documentation in Dr. Bishop’s records
supporting the frequency or severity of her headaches.
Plaintiff argues that once the ALJ rejected Dr. Bishop’s opinion, the ALJ arbitrarily
“play[ed] doctor” in concluding that she had the ability to perform light work since the ALJ
failed to cite to an opinion from a “medical source” in formulating her RFC. See [ECF No. 9]
pp. 8-9. As the Commissioner points out, the ALJ is responsible for assessing a claimant’s RFC
based upon a consideration of all the evidence in the record. 20 C.F.R. §§ 404.1546, 416.946;
see also Fargnoli, 247 F.3d at 41. In Chandler v. Comm’r of Social Sec., 667 F.3d 356, 362 (3d
Cir. 2012), the Third Circuit held that an ALJ is not precluded from reaching RFC
determinations “without outside medical expert review of each fact incorporated into the
decision.” The court observed that although reliance on state agency physicians’ and treating
physicians’ opinions is common, “the regulations do not require ALJs to seek outside expert
assistance.” Id; see also Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006) (“There is
no legal requirement that a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC. Surveying the medical evidence to craft an RFC is part of the
ALJ’s duties.”); Mays v. Barnhart, 78 Fed. Appx. 808, 813 (3d Cir. 2003) (rejecting the
claimant’s argument that the ALJ’s decision was not supported by substantial evidence because
the record contained no expert opinion indicating the claimant could perform light work, noting
that the ALJ was responsible for determining RFC and he was not required to seek a separate
expert medical opinion); Casillas v. Astrue, 671 F. Supp. 2d 635, 655 (E.D.Pa. 2009)
(“Plaintiff’s argument, taken to its logical end, would effectively transfer the responsibility of
making a final RFC determination from the ALJ to the medical expert—and, in turn, directly
contravene that portion of the Social Security regulations expressly reserving RFC
determinations to the ALJ rather than to any particular medical source.”). We conclude,
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therefore, that the ALJ did not err in her RFC assessment even in the absence of a medical
opinion to that effect.
To the extent the Plaintiff claims the ALJ’s RFC assessment is not supported by
substantial evidence notwithstanding the absence of a medical source opinion with respect to her
functional limitations, we disagree. The ALJ examined the Plaintiff’s medical records relative to
her impairments, discussed the various diagnostic studies, considered her course of treatment,
considered her work history, and considered the Plaintiff’s testimony in fashioning her RFC (AR
28-29). All of this evidence (as previously discussed) provided a sufficient basis for the ALJ’s
conclusion that the Plaintiff’s impairments did not prevent her from performing light work with a
sit/stand option at her discretion, without exposure to environmental irritants. Accordingly, we
find no error in this regard.
Plaintiff’s final argument is that the ALJ erred in assessing her credibility. An ALJ must
consider subjective complaints by the claimant and evaluate the extent to which those complaints
are supported or contradicted by the objective medical evidence and other evidence in the record.
29 C.F.R. §§ 404.1529(a), 416.929(a); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). In
assessing subjective complaints, SSR 96-7p and the regulations provide that the ALJ should
consider the objective medical evidence as well as 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. 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p, 1996
WL 374186 at *2. As the finder of fact, the ALJ can reject, partially or fully, subjective
complaints if he finds them not credible based on other evidence in the record. Baerga v.
Richardson, 500 F.2d 309, 312 (3d 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 (3d Cir. 1983).
The ALJ found that the Plaintiff’s statements concerning her claimed limitations were not
entirely credible (AR 27). In addition to her examination of the medical evidence as discussed
above, the ALJ found it significant that the Plaintiff had not been hospitalized or sought
14
emergency room treatment for her symptoms, and despite her claims of severe symptoms caused
by her COPD, she continued to smoke despite having been advised not to do so by several
physicians (AR 28-29). While the Plaintiff faults the ALJ for these findings, the Commissioner’s
regulations provided that the treatment a claimant seeks is an “important indicator of the
intensity and persistence” of claimed symptoms, see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3),
and an individual’s statements may be deemed less credible if the level and frequency of
treatment is inconsistent with the level of complaints. Social Security Ruling (“SSR”) 96-7p,
1996 W 374186 at *7; see also Klangwald v. Comm’r of Social Sec., 269 Fed. Appx. 202, 205
(3d Cir. 2008) (“the type of medical treatment received (or not received) is highly relevant in
evaluating [the claimant’s] credibility”). An ALJ may appropriately consider a claimant’s failure
to stop smoking in the credibility analysis. See e.g. Hall v. Astrue, 2012 WL 292473 at *16
(D.Del. 2012) (the claimant’s failure to stop smoking may be considered by the ALJ in his
credibility analysis); Matta v. Astrue, 2012 WL 3138010 at *7 (M.D.Pa. 2012) (ALJ
appropriately considered the fact that the claimant continued to smoke where she was advised
numerous times to quit).
In sum, the ALJ’s credibility determination with respect to the Plaintiff’s subjective
complaints is supported by substantial evidence.
V.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion will be denied and the
Commissioner’s Motion will be granted. An appropriate Order follows.
15
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLY ANN GREAVES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil Action No. 12-135 Erie
ORDER
AND NOW, this 5th day of July, 2013, and for the reasons set forth in the accompanying
Memorandum Opinion,
IT IS HEREBY ORDERED that the Plaintiff’s Motion for Summary Judgment [ECF No.
8] is DENIED, and the Defendant’s Motion for Summary Judgment [ECF No. 10] is
GRANTED. JUDGMENT is hereby entered in favor of Michael J. Astrue, Commissioner of
Social Security, and against Plaintiff, Kimberly Ann Greaves.
The clerk is directed to mark the case closed.
s/ Sean J. McLaughlin
Chief United States District Judge
cm:
All parties of record
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