BROOKHOUSER v. COMMISSIONER OF SOCIAL SECURITY
Filing
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MEMORANDUM AND OPINION re 9 MOTION for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY, 7 MOTION for Summary Judgment filed by LORIE JEAN BROOKHOUSER. There is substantial evidence existing in the record to supp ort the Commisioner's decision that Plaintiff is not disabled. Plaintiff's Motion for Summary Judgment is Denied. Defendant's Motion for Summary Judgment is Granted. The decision of the ALJ is confirmed.Signed by Judge Maurice B. Cohill on 12/19/2013. (cag)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LORIE JEAN BROOKHOUSER
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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Civil Action No. 13-9SE
OPINION
I.
Introduction
Pending before this Court is an appeal from the final decision of the Commissioner of
Social Security ("Commissioner" or "Defendant") denying the claims of Lori Jean Brookhouser
("Plaintiff' or "Claimant") for Supplemental Security Income ("SSI") under Title XVI of the
Social Security Act ("SSA"), 42 U.S.c. §§ 1381 et. seq. (2012).
Plaintiff argues that the
decision of the administrative law judge ("ALJ") should be reversed and the Commissioner
directed to award Plaintiff benefits because the Commissioner committed legal error when
evaluating Plaintiffs symptoms and impairments by failing to comply with the requirements of
SSR 96-7p and 20 C.F.R. § 404.1529.
The Commissioner's decision was not supported by
substantial evidence as required by 42 U.S.C. § 405(g). In the alternative Plaintiff requests that
the case be remanded for further hearing and attorney's fees be awarded under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d), on the grounds that the Commissioner's action in this case
was not substantially justified.
To the contrary, Defendant argues that the decision of the ALJ fully evaluated the opinions of
treating, examining, and reviewing physicians as well as other relevant evidence and provided a
rationale, supported by substantial evidence for denying SSI benefits to the Claimant and,
therefore, the ALl's decision should be affirmed. The parties have tiled cross motions for
summary judgment pursuant to Rule 56( c) of the Federal Rules of Ci vii Procedure.
For the reasons stated below, the Court will deny the Plaintiff's Motion for Summary
Judgment and grant the Defendant's Motion for Summary Judgment and affirm the decision of
the ALJ.
II. Procedural History
On February 18, 2010, Plaintiff protectively filed an application for SSI alleging
disability beginning April 1, 2009. [ECF No.7 at 1]. The claim was initially denied on July 1,
2010. Id. On September 3, 2010, Claimant filed a written request for a hearing.
A video
hearing was held before an Administrative Law Judge ("ALJ") on July 13, 2011. Id. Barbara K.
Byers, an impartial vocational expert ("VE"), also appeared during the hearing. (R. at 34). On
August 19, 2011, the ALJ, Jeffrey M. Jordan, determined that Plaintiff was not disabled under
Section 1614(a)(3)(A) of the Social Security Act. CR. at 34). The ALJ stated that "After careful
consideration of all the evidence, the undersigned concludes the claimant has not been under a
disability within the meaning of the Social Security Act from April 1, 2009, through the date of
this decision." (R. at 27). The Plaintiff filed a timely written request for review by the Appeals
Council which was denied on February 7, 2013.
[EeF No. 8 at 1]. The Commissioner's
decision was made tinal under 42 V.S.c. § 405(g). Id.
While Plaintiff's application for benetits was based upon the following conditions:
migraines, cervical and lumbar disorders with both upper and lower extremity radiculopathy,
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restless leg syndrome, neuropathy, depression, and obesity, the only medical issues on appeal are
the migraine and spinal issues. Therefore, our analysis will cover only the migraine and spinal
issues of record.
IlL AfedicalJlistory
On Plaintiffs Disability Report she states that she is 4'8" tall and weighs 170 pounds.
The physical conditions that Plaintiff reported limit her ability to work were: (1) Lower back
pain that goes down the leg, arm, and (2) migraine headaches. She says her low back pain began
after an auto accident. Id. at 251. (R. at 187). Plaintiff reported her conditions affect the
following abilities: Lifting, squatting, bending, standing, reaching, walking, sitting, kneeling,
stair climbing, completing tasks, concentration, and using hands. She can lift 10-15 pounds,
stand for 15 minutes, sit for 15 minutes, squat for 15 seconds till it hurts the back of her legs,
reach for 20 seconds, kneel for 10 minutes, bend for 20 seconds until it hurts her back, walk for
10 minutes, she becomes out of breath and hurts stair climbing, she has difficulty using her right
hand because of cramping, and the migraines affect her concentration. Id. at 213. Plaintiff says
pain is concentrated in her lower back, neck, migraines, right leg, and right arm and hand. Id. at
216. Plaintiff reports that physical therapy made things worse. Id. at 217. Plaintiff reports her
pain as 1O-out-of-l O.
Plaintiff states her migraines and back pain have gotten worse as of
September 3, 2010, and that it is hard to move around and get out of bed. Id. at 220. She further
reported that she stopped working on June 13,2003 because of these conditions. (R. at 187).
Plaintiffs primary care physician, prescribes the following medications for Plaintiffs
conditions: Gabapentin for pain and weakness in arms, Hydrocodone for pain of low back and
legs, Carisoprodol a muscle relaxant, Somatriptan for headaches, Hydroxyzine Pam (sleeping
pill), Ropinirole HCL for jumping/restless legs, Metoclopramide for acid reflux, Topivamate for
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headaches, Levothroxine for thyroid, Citalopram HBR for depression, and Ferrex an iron
supplement. (R.at. 227). She experiences no side effects from her medications. Id. at 217.
Plaintiff reports she sees doctors for her medical conditions.
Dr. Bojewski is Plaintiff s primary care physician who she began seeing in June of 2004.
Id. at 191. Dr. Cames, Dr. Ferretti, and Dr. Habusta were all physicians seen in the emergency
room in the year 2008. Id. at 192-93.
A June 28, 2004 report of the MRI performed of the lumbar spine finds mild diffuse
degenerative disc disease and sparing at L3-4. The degenerative disc disease is most pronounced
at L5-S 1 where there are endplate changes. There is a grade I spondylolisthesis of L5 on S 1 with
bilateral pars defects.
There is a moderate bilateral foraminal stenosis. (R. at 227).
The
diagnosis is degenerative disc disease and spondylolisthesis and spondylolysis, L5-S 1. Id.
September 24, 2004 an examination of Plaintiffs left femur in multiple views reveals
there is no radiological evidence of fractures or bone destructions. The joint spaces are well
preserved. The soft tissues are normal. (R. at 439).
January 26, 2005 x-rays were performed on bilateral knees due to pain. AP and lateral
views demonstrate no evidence of fracture, dislocation or bony destruction. There is minimal
narrowing of the medial knee joint compartments.
overlying soft tissues are unremarkable.
No osteophyte formation is seen.
The
Minimal narrowing of the medial knee joint
compartments bilaterally. (R. at 437).
An April 21, 2005 bone density evaluation revealed that the AP Spine (L 1-L4) is
Osteopenic. (R. at 244).
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November 19, 2005 a noncontrast head CT was performed on Plaintiff. The study was
compared to an exam dated May 27, 2005. Brain parenchyma was normal in attenuation with
normal gray-shite matter differentiation.
No intra or extra-axial masses or abnormal fluid
collections. No evidence of acute infaret or intracranial hemorrhage. Ventricles and CSF spaces
are negative without midline shift. Bony structures and superficial soft tissues are negative. (R.
at 430).
A February 21, 2006 study of the right radius and ulna, AP and Lateral revealed there
was no evidence of fracture, dislocation or bony erosions. No specific abnormalities. (R. at
429).
Dr. John Kalata, D.O. examined Plaintiff on April 28, 2006 and his examination
impressions are as follows: Discogenic disease in lumbar spine with left sciatica, ambulatory
dysfunction, spondylolisthesis, spondylolysis, traced lumbar spine, hypothyroidism, migraine
cephalgia, insomnia, and left sacroiliac dysfunction. Id. 254-55. Dr. Kalata further reports in a
June 14, 2006 letter that Plaintiff has ambulatory dysfunction due to pain in her lower back with
radiation to her left leg upon walking. Id. at 250. He states walking with a cane is advisable. Id.
He further states that the radicular pain is most likely caused by the diseased lumbar disc at the
L4-L5 level, which is affecting her left sciatic nerve. Id. "She had a range of motion that was
very diminished in the lower extremities and she had difficulty getting on and off the
examination table." Id. at 255.
January to, 2007 Richard Kocan, M.D. reviewed an MRI of the Plaintiffs lumbar spine
and reports there is degenerative disc disease and a grade I spondylolistheses of L5 on S 1
without pars defects. The disc is bulging diffusely especially to the left of midline with bilateral
moderate foraminal stenosis. No central canal stenosis is seen. No other disc pathology or
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malalignment is detected. There is no other canal or foraminal stenosis. Conus medullaris and
cauda equine are normal. Id. at 286.
Sylvia M. Ferretti, D.O. of the Bureau of Disability Determination performed a physical
examination of the Plaintiff on May 1, 2007 and found that her cervical range was within normal
limits, her upper extremity revealed bilateral biceps, brachioradialis and triceps reflexes that
were 2/4 and symmetrical. Shoulder, elbow, wrist, hand range of motion were normal, strength
bilaterally SIS and sensory is intact. Her lower extremity revealed patella and Achilles reflexes
were 2/4 and symmetrical. Strength is SIS. Sensory is intact. Hip, knee, and ankle range of
motion were within normal limits. Back range of motion was recorded. Id. at 271.
A July 20, 2007 MRIIMRA report of Plaintiffs back finds that the L5-S 1
spondylolisthesis and spondylolysis and foraminal stenosis, is stable from the prior exam of
January 10, 2007 and that there are no new abnormalities. The report is signed by Richard
Kocan, M.D. Id. at 285.
On October 4, 2007 Plaintiff was seen at Hamot Medical Center Emergency Department
for acute musculoskeletal right arm and chest pain.
She was discharged with Lortab and
ibuprofen prescribed. Id. at 287-95.
A November 3, 2007 study of Plaintiffs right shoulder, right humerus, right radius and
ulna, right wrist and right hand show no acute abnormalities. Id. at 322-23.
On November 7, 2007 Dr. Steven Habusta saw Plaintiff for right upper extremity pain,
numbness and tingling. On physical examination she has a positive Spurling's test and pain at
flexion. Limited range of motion of rotation to the left and side-bending to the left. She has
tenderness on palpation on her AC joint as well as tenderness on palpation over the coracoid
process and lateral acromion. Dr. Habusta suspects C5-6 radiculopathy and right rotator cuff tear
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and scheduled an MRJ of the right shoulder and C-spine and scheduled her for an EMG of her
right upper extremity. (R at 310; 488-89).
On November 15, 2007 an MRI of the right shoulder was performed on Plaintiff and no
abnormalities were found. CR. at 484). MRI of the cervical spine was performed on November
15, 2007 that found diffuse spondylosis. Disc protrusion at C3-C4, C5-C6, and greatest at C6
C7.
The impressions of Russell E. Reichter, M.D. were tendonitis/tendinopathy at the
myotendinous junction of the suprspinatus muscle/tendon. There is no evidence of a rotator cuff
tear. Degenerative changes at the A-C joint. rd. at 320-21.
December 19, 2007 Plaintiff returned to Dr. Habusta for another follow up visit. The Doctor
noted she has a very taught paraspinal musculature of the cervical spine. Range of motion is
limited secondary to stiffness and pain. Examination of the right shoulder demonstrates positive
impingement signs including Neer's and Hawkins. She has a moderate amount of AC tenderness
on the right. Internal rotation and external rotation are symmetrical. MRI demonstrates posterior
disc bulge of C5-6, C6-7 with moderate amount of spondylosis throughout the cervical spine.
There was also marked loss of normal cervical lordosis on the MRL MRI of the right shoulder
demonstrates moderate amount of AC arthrosis and also some minimal signal change at the
supraspinatus tendon proximal to the insertion. CR. at 490). Dr. Habusta instructed Plaintiff to
continue with physical therapy and anti-inflammatory medication.
He injected her right
subacromial space using 1% Lidocaine 6 ccs with 2ccs of 114% Marcaine and 2 ccs of 40 mgs of
Depo-Medrol. Id.
Plaintiff only attended one physical therapy session on December 28, 2007 where she
was assessed by Kyle Kelley as demonstrating with pain primarily in the right scapular region
due to what appears to be some postural issues resulting in tightness of the pectoralis region an
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dover-stretching of the scapular muscles resulting in right shoulder pain.
Goals were set to
demonstrate a +4/5 triceps strength, a reduction of subjective complaints by 50% in her pain, to
demonstrate an increase in her grip strength by 10 pounds or greater, patient to demonstrate 0
complaints of cervical range of motion, and patient to be independent with a home exercise
program. Physical therapy to continue 2 to 3 times a week for 4 weeks. Pain relief modalities
included in therapy. rd. at 317.
A January 7, 2008 Saint Vincent Neurosurgery report states that Plaintiff complains of
neck and right upper extremity pain for about three to four months period time. Dr. William
Diefenbach recommends physical therapy before any surgical intervention. rd. at 297 -98.
Dr. Ferretti examined Plaintiff on February 5, 2008 performed an EMG for right forearm
pain with weakness and tingling in her right hand for the past 4 months. Dr. Ferrett diagnosis
Plaintiff with chronic right C6 nerve root irritation and recommends conservative treatment and
physical therapy. Id. at 300.
Dr. Habusta saw Plaintiff on February 27, 2008 and assesses that Plaintiff has C-spine
radiculopathy particularly in right C6 mild right shoulder impingement syndrome. Dr. Habusta
says there is nothing to do from a surgical standpoint and provides the same recommendations as
Dr. Ferretti and Dr. Diefenbach. Id. at 306-07.
Dr. Habusta further reported that Plaintiffs
condition was essentially the same with a limited range of motion of the right upper extremity
and slightly reduced strength in deltoid, biceps, triceps, wrist flexion and extension. MRI of the
right shoulder demonstrated moderate ACJ arthritis and minimal signal change at the
supraspinatus tendon proximal to the insertion.
Dr. Habusta's assessment was C-spine
radiculopathy particularly right C6 and mild right shoulder impingement syndrome. The Doctor
states Plaintiff has elected not to pursue physical therapy that was recommended by three
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doctors. Nor has she filled the prescription for her C-spine traction unit. Doctor says there is
very little they can do for her except medicine to alleviate her symptoms. (R. at 486-87).
An MRI was performed on November 7, 2008 of the Cervical Spine. Images were taken
of AP, lateral and both oblique views with odontoid view.
spondylosis at C5-6 and C6-7.
The result of the images was
An MRI of the cervical spine was compared with studies
performed on November 15,2007. Tl and T2 weighted sagittal and axial images with gradient
recalled sagittal images obtained. The results were diffuse spondylosis, central disk protrusion at
C4-5, C5-6 and greatest at C6-7. There are degenerative changes with osteophyte formation at
C5-6 and greater at C6-7. Radiologist was Russell E. Reichter, M.D. Id. at 311-12. MRlofthe
cervical spine was compared to studies performed on November 15, 2007 (with the same results
(R. at 484)) and impressions were difluse spondylosis and central disk protrusion at C4-5, C5-6
and greatest at C6-7. Id. Dr. Steven Habusta, D.O. was the attending physician. An X-ray of
Plaintiffs arm was taken on November 8, 2008. Id. at 167.
On December 3, 2008 Plaintiff was seen by pain management specialist Paul Carnes, MD for
chronic neck pain radiating to the right upper extremity, and chronic low back pain radiating to
the right lower extremity. A cervical MRI showed cervical spondylosis with degenerative disc
disease, but no disc herniation. On examination, Plaintiffs vital signs, HEENT, lungs, heart,
abdomen, and extremities were normaL Cervical range of motion was slightly decreased with
some paracervical tenderness and tenderness over the greater occipital nerve and the
suprascapular nerves.
Straight leg raising was negative.
There was some lumbosacral tenderness.
Patrick's maneuver was negative.
Strength and sensation was normaL Deep tendon
reflexes were symmetrical. Dr. Carnes initiated a series of cervical epidural steroid injections.
(R. at 447).
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On January 13, 2009 Plaintiff underwent a procedure for the administration of cervical
epidural anesthetic and steroid with contrast under fluoroscopy for chronic neck pain, secondary
to cervical disc degeneration. Id. at 332. The same procedure was performed on February 3,
2009. Id. at 331. Dr. Paul P. Carnes performed the pain management procedures. Id. at 332-34.
On June 14, 2010 Plaintiff was examined by Dr. John C. Kalata, D.O. Patient reported she
has migraine headaches sometimes daily and she has lower back and right leg pain. Plaintiff
takes a Topomax 100 mg tablet twice a day for the migraines and Vicodin ES and Soma for the
back and leg pain. Plaintiff also complains of neck pain that radiates down to her right arm
causing numbness and pain. (R. at 463).1 The doctor noted limited motion of the neck to all
spheres, (R. at 466), full range of motion of upper and lower extremities (R. at 467), and back
reveals tenderness in the lumbar area radiating down towards her left leg.
rd.
The doctor
reported Plaintiff can barely toe walk or heel walk and she could not really squat. Id.
Dr.
Kalata's examination impressions are: (1) Migraine cephalgia; (2) Right arm neuropathy; (3)
Cervical discogenic disease with bulging disks; (4) Spondylosis of cervical spine; (5)
Radiculopathy, right arm; (6) Discgenic disease, lumbar spine; (7) Hypothyroidism; (8) Restless
leg syndrome; (9) GERD; (l0) Insomnia; (11) Right C6 nerve neuropathy; (12) Central disk
protrusion at the C4 and 5 level, C5 and 6 level, and greatest at C6 and C7 level. Id.
On August 10, 2010 Plaintiff went to St. Vincent Health Center with low back pain and
migraine pain and was diagnosed with fatigue and weakness and discharged with care
instructions. (R. at 529).
I There appears to be a typographical errors on page 466 of the record where the doctor describes the Plaintiff as a
27-year old male. This possibly calls into suspect other infonnation provided in the same report.
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On September 26, 2010 Plaintiff went to the Emergency Department at St. Vincent Health
Center for low back pain and she was diagnosed with Radiculopathy and discharged with
instructions for care. CR. at 521).
On September 30, 2010 Plaintiff went to the Emergency Department at St. Vincent Health
Center with lower back pain and was educated in care for the pain and discharged. CR. at 515).
On October 14, 2010 an MRI of Lumbar Spine without contrast was performed due to lower
back pain and left leg pain with numbness. Findings were minimal spondylolisthesis of L5 on
SI secondary to degenerative disc and joint disease at this level. There is degenerative disc
disease throughout the lumbar spine. CR. at 567). On the same date the Plaintiff had images
taken of her lumbar spine in three views. The findings were degenerative disc and joint disease
at L5-S 1 and L4-5. CR. at 568).
November 1, 2010 Plaintiff attended physical therapy for low back pain and lower extremity
numbness. She was assessed as having low back pain exacerbated by the fact that she has
excessive weakness throughout her lower extremities. CR. at 587). Plan for the Plaintiff was to
increase strength within four weeks. Plaintiff was to have physical therapy 2-3 times a week for
four weeks. Id.
A November 24,2010 letter from Millcreek Community Hospital to Bryant Bojewski, D.O.
states that due to lack of attendance Plaintiff was discharged from physical therapy. CR. at 585).
On December 13,2010 Plaintiff attempted suicide with an overdose of Ambien. She became
nauseated and vomited. She was seen at the St. Vincent Health Center. CR. at 536).
IV. Summary of Testimony
Plaintiff lives with her fiancee, daughter, son and grandson. CR. at 208). In her Disability
Report her description of her daily activities are as follows:
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I wake the boys up for school in the mornings. .. [The boys] get ready for school and
one of the three of us drive them to school. Corne home if it's me then climb up the stairs hurts
my back so I sit awhile, stairs are hard on my legs and back. I also get dizzy and fell [sic] like
am about to fall. I take my medications because ifI don't take my migraine medication I will get
[a] headache within an hour. My headaches/migraines last about 3/4 of the day. I need to be in a
dark room where it's quiet [sic] cold towel or hot towel whatever one work at that time. You try
not to cry because that just makes it worse - you get sharp pains at the top of your head that feels
like someone has a knife in it. Id.
Plaintiff reports working as a bank teller prior to the onset of her alleged disability from
April of 1999 to June of 2003. Subsequent to being a bank teller, Plaintiff babysat for her
grandson in 2005. (R. at 196). Requirements of the job babysitting her grandson included
feeding him, changing him, playing with him and making sure he was safe.
(R. at 197).
Plaintiff would have to walk, stand, sit, stoop, kneel, crouch, crawl, handle, grab or grasp big
objects and small objects, reach and lift and carry the baby. Id.
In the medical source statement filled out on April 28, 2006, Dr. Kalata reports that
Plaintiff could occasionally carry and left 10 pounds and frequently carry and lift 2·3 pounds. Id.
at 256. He said she could stand or walk an hour or less a day. Id. He said she could sit for 3
hours. Id. With regard to pushing and pulling, Plaintiff is limited in lower extremity due to
chronic low back pain. Id. Plaintiff is unable to stoop or crouch and can occasionally bend,
kneel, balance or climb. Id. at 259. She is limited in reaching. Id. Finally, her low back pain
inhibits her with heights, moving machinery, and vibration. Id.
Plaintiffs June 20, 2006 Physical Residual Functional Capacity (RFC) Assessment
performed by V. Rama Kumar, MD, provides the primary diagnosis of Dege disc disease of L·
spine and hypothyroidism with other alleged impairments of migraines, spondylolisthesis,
spondylolysis, and minimal arthritis of the knees. Id. at 260. Plaintiffs limitations as noted here
indicate that she can occasionally lift 20 pounds, frequently lift 10 pounds and can stand, walk or
sit for about 6 hours in an 8·hour work day. Id. at 261. She has an unlimited capacity to push or
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pull. rd. The report further indicates that Plaintiff can occasionally climb, balance, stoop, kneel,
crouch, and crawl.
Id. at 262.
No manipulative, visual, communicative, or environmental
limitations were cited. Id. The narrative of the RFC summarizes Plaintiff's medical history,
treatment and complaints and says the following: "The record reveals that the treatment has
generally been successful in controlling those symptoms. She does not attend physical therapy.
She does not require an assistive device to ambulate. Additionally, she does not use a Tens unit .
. . The medical records reveal that the medications have been relatively effective in controlling
her symptoms." Id. at 265. Dr. Kumar goes on to state, "Of greatest significance in determining
the credibility of the claimant's statements regarding symptoms and their effects on her
functioning was the type of treatment she received." Dr. Kumar found Plaintiff to be partially
credible. ld. at 266. Dr. Kumar addresses the discrepancies between the RFC and Dr. Kalata
(misspelled in the RFC as HAlata"). Dr. Kumar finds that Dr. Kalata overestimates the severity
of Plaintiff's functional restrictions based on the totality of evidence in the file and because it is
not consistent with all of the medical and non-medical evidence in the claims folder, it is less
persuasive and is given appropriate weight. Id.
Dr. Ferretti's evaluation stated Plaintiff could frequently lift and carry up to 10 pounds
and occasionally lift 20 pounds. Plaintiff can stand and walk 8 hours or more a day (l hour at a
time and changing position frequently). Plaintiff can also sit/stand at her option for 8 hours a
day. Plaintiff has limited lower extremity due to spondylithesis and spondylosis. Id. at 276. Dr.
Ferretti states that Plaintiff has no postural limitations and is only physically limited in handling
due to forearm pain. Id. at 277. Environmental restrictions include poor ventilation, heights, and
moving machinery. Id.
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On June 13, 2007 Dr. Kilip S. Kar performed another RFC. Dr. Kar reports Plaintiff can
occasionally lift or carry 20 pounds and frequently lift 10 pounds. She can stand or walk with
normal break about 6 hours in an 8-hour work day and her push/pull capabilities are unlimited.
Id. at 279. Dr. Kar reports that Plaintiff can occasionally perform all postural positions such as
climbing, balancing, stooping, kneeling, crouching and crawling. Id. at 280. The doctor finds no
other limitations. Dr. Kar found the Plaintiff's statements to be partially credible. Id. at 283.
Dr. Kar acknowledges the consideration ofKr. Ferretti's evaluation in the RFC determinations.
On March 5, 2009 another RFC was performed by Lorraine Prach. Ms. Prach found Plaintiff
to be able to occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds. She can
sit for about 6 hours in an 8-hour work day and is unlimited in push/pull activity. There are no
limitations reported in postural activity, manipulative activity, visual activity, or communicative
or environmental activity. Id. at 336-39. Plaintiff alleges disability due to back pain, neck pain
and arm problems and states that these symptoms result in limitations in performing at a
consistent pace. The medical evidence establishes a medically determinable impairment of C5
C6 Radiculopathy. Ms. Prach determines Plaintiff to be partially credible in assessing her
statements regarding symptoms and their effects on function and the medical history evidence.
Id. at 340.
On March 31, 2010 another RF C Assessment was completed by Paul Fox under a primary
diagnosis of cervical spondylosis. Fox determined Plaintiff could occasionally lift or carry 20
pounds and could frequently lift or carry 10 pounds. He said she could stand or walk with normal
breaks for about 6-8 hours a day and she could sit for the same amount of time. He also
determined she has unlimited push and pull abilities. According to this RFC, Plaintiff could
frequently balance, stoop, and crouch and occasionally climb, kneel, and crawl. She has no
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manipulative limitations, no visual limitations, no communicative limitations, no environmental
limitations. (R. at 442-446).
The evaluator, in assessing the Plaintiff's credibility says the following:
The claimant has described daily activities that are significantly limited. This is consistent
with the limitations indicated by other evidence in this case. She received treatment from a
specialist for her Cervical Spondylosis. Furthermore, she has received various forms of
treatment for the alleged symptoms. The record reveals that the treatment has generally been
successful in controlling those symptoms. Of critical importance in determining the credibility
of the claimant's statements regarding symptoms and their effects on her functioning were her
medical history, type of treatment she received, her response to the treatment she received and
reported observations of the claimant in the file. Based on the evidence of record, the claimant's
statements are found to be partially credible. (R. at 447-48).
Also on March 31, 2010 a psychiatric assessment was performed by Edward Jonas, Ph.D.
He found Plaintiff's mental impairments not severe and categorized her as having "Affective
Disorders." Dr. Jonas notes a medically determinable impairment of depression is present that
does not precisely satisfy the diagnostic criteria. (R. at 450, 453). The evaluator makes a final
notation stating, "The claimant is 44 years old and suffers from depression. This was diagnosed
by her PCP, Bryant Bojewski, D.O.
She takes citalopram, which was prescribed by Dr.
Bojewski, and it completely controls symptoms. The claimant has no mental health inpatient or
outpatient treatment. Based on the evidence of record, the claimant's statements are found to be
partially credible." (R. at 462).
On June 14, 2010, Dr. Kalata reported that Plaintiff can never crouch due to lower back pain
and can occasionally bend, kneel, stoop, balance and climb.
CR. at 469). He also noted her arm
pain inhibits her reading, handling, fingering, and feeling. Id. Finally, he says her neck and back
pain cause her to have restrictions in the areas of heights, moving machinery, vibration,
temperature extremes, wetness, dust, noise, fumes, and humidity. Id. According to Dr. Kalata's
report Plaintiff can frequently lift 2-3 pounds and only occasionally can lift 10 pounds. (R. at
15
470). She can only walk for an hour or less and she is limited in upper extremity in pushing and
pulling. Id.
Another RFC Assessment was performed by Gennafer Shaw on July 1, 2010. The Plaintiff s
primary diagnosis in this report was Migraine Cephalgia with a secondary diagnosis of right arm
neuropathy and radiculopathy. Other alleged impairments are Plaintiff s disc disease and restless
leg syndrome and GERD. This report states the following: Plaintiff can occasionally lift 10
pounds and can frequently lift 10 pounds. She can stand or walk at least 2 hours in an 8-hour
workday. She can sit for about 6 hours in an 8-hour work day. She has unlimited push and pull
ability.
She only has occasional postural limitations and no manipulative, visual, or
communicative limitations. The only environmental limitation is to avoid concentrated exposure
to machinery and heights. (R. at 473-477).
The claimant has described daily activities that are significantly limited. This is partially
consistent with the limitations indicated by other evidence in this case. She received treatment
from a specialist for her impairments. Furthermore she does not require an assistive device to
ambulate. She is prescribed [medicine] for her pain ... Based on the evidence of record, the
claimant's statements are found to be partially credible." Id. at 478-79.
Claimant's initial requests for disability insurance benefits were denied. There was a July 13,
2011 hearing on the matter for which an August 19, 2011 decision was issued by Administrative
Law Judge, Jeffrey M. Jordan, once again, denying PlaintifT benefits. The ALJ determined (1)
that the Plaintiff met the insured status requirements of the Social Security Act; (2) that she has
not engaged in substantial activity since April 1, 2009; (3) that she has the following
impairments: disorders of the back; migraines; restless leg syndrome; neuropathy; and obesity;
(4) the Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1 520(d), 404.1525,404.1526, 416.920(d), 416.925 and 416.926);
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and (5) that after careful consideration of the entire record, the ALl finds that Plaintiff has the
residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a). (R. at 28-30). The ALl presented to the Vocational Expert (VE), Barbara K.
Byers the following limitations:
•
•
•
•
•
•
•
•
•
•
Sedentary work;
Lift, carry, push, and pull up to 10 pounds occasionally from waist to chest level;
Stand and walk less than one hour within an eight hour workday;
Sit about seven hours in an eight hour workday;
Avoid crawling, kneeling, and climbing, but can perform other postural movements on an
occasional basis;
Avoid constant and repetitive fine and gross manipulating;
Limited to simple, repetitive, low stress tasks;
Avoid working around hazards;
Avoid concentrating exposure to respiratory irritants, extreme temperatures, and
humidity; and
Avoid constant and repetitive reading and turning of the neck. (R. at 21).
The ALl provided the VE with the most conservative restrictions even though some RFC
evaluators thought Plaintiff was capable of more. The VE suggested that Plaintiff can work as a
food and beverage order clerk, where there are 1,000 jobs in the Pennsylvania economy, and as a
charge account clerk, where there are 2,000 jobs in the economy. (R. at 34).
It is Plaintiff's position that the ALl's determination that she could work in occupations with
jobs existing in significant numbers in the national economy was not supported by substantial
evidence. (R. at 20-21). Further, Plaintiff contends that the two job possibilities that the VE
identified as available to the Plaintiff, were actually not possible due to the Plaintiff's short
stature, nor were they available in a location geographically available to the Plaintiff who resides
in a less populated area in Pennsylvania. (R. at 22).
V. Standard ofReview
The Congress of the United States provides for judicial review of the Commissioner's
denial of a claimant's benefits.
42 U.S.C. § 405(g)(2012).
17
This Court must determine
whether or not there is substantial evidence which supports the findings of the Commissioner.
See id. "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.
1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971
».
This deferential standard has
been referred to as "less than a preponderance of evidence but more than a scintilla." Burns v.
Barnhart, 312 F.3d 113,118 (3d Cir. 2002). This standard, however, does not permit the court to
substitute its own conclusions for that of the fact-finder.
id.; Fargnoli v. Massonari, 247
F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge's findings "are
supported by substantial evidence" regardless of whether the court would have differently
decided the factual inquiry).
To determine whether a finding is supported by substantial
evidence, however, the district court must review the record as a whole. 5 U.S.c. § 706(1)(F)
(2012).
VI. Discussion
Under SSA, the term "disability" is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months ..." 42 U.S.C. §§ 416(i)(I); 423(d)(1)(A); 20 C.F.R. § 404.1505
(2012). A person is unable to engage in substantial activity when he:
[H]e 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. ...
42 U.S.c. § 423(d)(2)(A).
18
In detennining whether a claimant is disabled under SSA, a five-step sequential
evaluation process must be applied. See 20 C.F.R. § 404.1520; McCrea v. Comm'r of Soc. Sec.,
370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows: At step one, the
Commissioner must detennine whether the claimant is engaged in substantial gainful activity for
the relevant time periods; if not, the process proceeds to step two.
See 20 C.F.R.
§ 404.1520(a)( 4 )(i). At step two, the Commissioner must detennine whether the claimant has a
severe impainnent. See id. at § 404. I 520(a)( 4)(ii). If the Commissioner detennines that the
claimant has a severe impainnent, he must then determine whether that impainnent meets or
equals the criteria of an impainnent listed in 20 C.F.R., part 404, subpart p, Appx. 1.
§ 404.1520( a)( 4 )(iii). If the claimant does not have an impairment which meets or equals the
criteria, at step four the Commissioner must detennine whether the claimant's impainnent or
impainnents prevent him from performing his past relevant work.
See id. at §
404. 1520(a)(4)(iv). If so, the Commissioner must detennine, at step five, whether the claimant
can perfonn other work which exists in the national economy, considering her residual functional
capacity and age, education and work experience.
See id. at § 404. 1520(a)(4)(v); see also
McCrea, 370 F.3d at 360; Sykes v. Apfel, 228 F.3d 259,262-63 (3d Cir. 2000). In this case, the
Commissioner uses the sequential evaluation process and detennines at step (5) that the Plaintiff
has not met her burden of proof that she cannot work in some capacity in the national economy.
Therefore, because the Plaintiff was determined able to perfonn work that exists in significant
numbers in the national economy, she was determined ineligible for benefits by the ALl. (R. at
34).
In support of her motion for summary judgment, Plaintiff generally argues that the ALl
failed to comply with SSR 96-7p and 20 C.F.R. § 404.1529 because (l) her decision does not
19
contain specific reasons for his finding of partial credibility for Plaintiff, (2) her findings were
not supported by the evidence in the case record, and (3) her decision is not sufficiently specific
to make clear to the Court the weight the adjudicator gave to the Plaintiffs statements and the
reasons for that weight. [ECF No.8 at 3]. "The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96·7p.
In response, Defendant contends that the record supports that Plaintiff can perform light
work and a reduced range of sedentary work. The Commissioner supports her finding of partial
credibility for Plaintiff by comparing Plaintiffs complaints to medical evidence of record and
finds the record does not support the claims. There was no further medical testimony on the
record that contested these findings. The Commissioner found substantial evidence
defined as
less than a preponderance and more than a mere scintilla - supports the decision of the ALl that
Plaintiff could perform a reduced range of sedentary work. [ECF No. 10 at 1·2]. We agree with
the Commissioner that the record supports a finding that Plaintiff is not disabled and can perform
a range of sedentary work. Further, even though the examples of possible jobs provided by the
VE that Plaintiff could perform may not be available in the certain geographic range close to
Plaintiff, as stated above, the geographic availability of identified work is not of consequence in
making a determination of ability to work.
The claimant bears the burden of proving not only that she has an impairment expected to
result in death or last continuously for a year, but also that it is so severe that it prevents her from
performing any work See 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); Bowen v. Yuckert, 482
U.S. 137, 147 (1987). The Commissioner evaluates a disability claim by considering whether
20
the claimant (1) is working; (2) has a severe impairment; (3) has a listed impairment; (4) can
return to her past work; and (5) can perform other work. See 20 C.F.R. §§ 404.1520,416.920.
As stated above, in the Commissioner's analysis she reached the question of whether Plaintiff
could perform her past work or any other work in the economy. Plaintiff bears the burden of
proving that her RFC or limitations are that which do not allow for any work in the national
economy. See Heckler v. Campbell, 461 U.S. 458, 460 (1983); Matthews v. Eldridge, 424 U.S.
319, 336 (1976). Moreover, the ALJ is not required to uncritically accept Plaintiffs complaints.
See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011). The ALJ, as fact
finder, has the sole responsibility to weight a claimant's complaints about her symptoms against
the record as a whole. See 20 C.F.R. §§ 404.1 529(a), 416.929(a).
In this case we do not believe the Plaintiff has met her burden of proof that she has a
disability so severe it prevents her from performing any work. Defendant's recitation of the
medical record is not persuasive without further medical testimony or evidence that supports her
claims and a determination that Plaintiff is unable to work. The Court understands that the
Plaintiff has several diagnoses of disc disease and migraine headaches, however, the record
indicates that the Plaintiff s symptoms are treatable. Plaintiff herself indicated that her migraine
medicine is effective with no side-effects. Further, more than one doctor advised the Plaintiff to
pursue physical therapy to address her back pain symptoms and Plaintiff did not exhaust this
remedy. Even with her existing pain levels, Plaintiff was determined able to work and only
partially credible in mUltiple RFCs by various RFC reviewers throughout her medical history.
Most of the RFC reviewers found Plaintiff to be even more capable than what the ALl presented
to the VE. Furthermore, the multitude of RFCs were all consistent with one another in their
determination of limitations for Plaintiff. Even the most limited report by Dr. Kalata found
21
Plaintiff able to perfonn some work. The Court did not find any evidence on the record from a
medical professional that detennined Plaintiff unable to work even though the medical record
reflected several diagnosis for her pain. A diagnosis of a malady without a determination or
indication from some supporting medical review that Plaintiff cannot work will not serve to
make Plaintiff eligible for disability benefits.
VII.
Conclusion
For the foregoing reasons, we conclude that there is substantial evidence existing in the
record to support the Commissioner's decision that Plaintiff is not disabled, and therefore, the
Plaintiffs Motion for Summary Judgment is denied. The Defendant's Motion for Summary
Judgment is granted and the decision of the ALJ is affinned.
An appropriate order will be entered.
~
Date:
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cc:
counsel of record
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Ma Ice B. CohIll, Jr.
Senior United States District Court Judge
22
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