ANGERER v. ASTRUE
Filing
14
MEMORANDUM OPINION re 8 MOTION for Summary Judgment filed by TAYLOUR ANGERER and 12 MOTION for Summary Judgment filed by MICHAEL ASTRUE. There is substantial evidence existing in the record to support the Commissioner 9;s decision that Plaintiff is not disabled. The Plaintiff's Motion for Summary Judgment is Denied. The Defendant's Motion for Summary Judgment is Granted. The decision of the ALJ is affirmed. Signed by Judge Maurice B. Cohill on 7/29/2014. (cag)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TAYLOUR ANGERER
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL ASTRUE,
Defendant.
Civil Action No. 13-227E
OPINION
1.
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 Taylour Angerer
("Plaintiff" or "Claimant") for Disability Insurance Benefits ("DIB") and Supplemental Security
Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 401
434 and 1381-1383f (2012). Plaintiff argues that the decision of the Administrative Law Judge
("ALJ") was erroneous and that the Commissioner's decision was not supported by substantial
evidence as required by 42 U.S.c. § 405(g).
To the contrary, Defendant argues that the ALJ properly evaluated the entire record and
determined that despite numerous severe impairments, Plaintiff retained a Residual Functional
Capacity ("RFC") to perform a wide range of sedentary work. [ECF No. 13 at 10]. Therefore,
the ALl's decision should be affirmed. The parties have filed cross motions for summary
judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.
The Court has reviewed the record in its entirety and for the reasons stated below, we will
deny the Plaintiff's Motion for Summary Judgment and grant the Defendant's Motion for
Summary Judgment.
II. Procedural History
The Plaintiff filed applications for DIB and SSI on October 1, 2010 (R. at 153-68, 188)
alleging disability since May 1, 2009, due to short bowel syndrome ("SBS"), anemia, vitamin B
12 deficiency, dysthymic disorder, and panic disorder (R. at 21; R. at 24). Plaintiff's claims
were denied at the initial level of the administrative review process on March 29, 2011 (R. at 21).
Plaintiff requested a hearing on April 12, 2011 (R. at 21). ALJ David F. Brash conducted a de
novo video hearing on February 24, 2012 (R. at 21).
Present at the hearing was Vocational
Expert ("VE"), Fred A. Monaco (R. at 21). On March 2, 2012, the ALJ determined that Plaintiff
was not disabled under Section 1614(a)(3)(A) of the Social Security Act (R. at 21-31). The ALJ
stated, "After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform the full range of sedentary work as defined in 20 C.F.R.
§§ 404.1567(a) and 416.967(a)." (R. at 27).
On April 24, 2012 Plaintiff filed a timely written request for review by the Appeals
Council (R. at 16), which was denied on May 29,2013 (R. at 1-5), making the ALl's decision
the final decision of the Acting Commissioner. An appeal was subsequently filed by Plaintiff
who seeks review of the ALl's decision.
III. Medical History
Plaintiff was born 12 weeks premature and underwent bowel resection for
necrotizing enterocolitis at 3 days of age, and bowel reanastomosis at age 6
months. She has had repeated hospitalizations for recurrent abdominal pain and
obstructions.
Her problems include dumping syndrome, anemia, vitamin
2
deficiencies, and intolerance to certain foods. Her weight is 106 pounds and her
height is 61 inches. (R. at 71-72).1
Plaintiff was born on February 12, 1990. Plaintiff's initial surgeries took place at
Children's Hospital in Pittsburgh (R. at 253-55) four days after birth. On April 9, 1990 Plaintiff
was transferred to S1. Vincent Health Center for follow up care for post-surgical effects and
prematurity (R. at 257-260).
On June 4, 1990 Plaintiff returned to Children's Hospital of
Pittsburgh for the closure of Ileostomy (R. at 261).
From October 16-24, 1990 Plaintiff was admitted to the hospital for malabsorption (R. at
321).
On December 9, 1990 Plaintiff was seen at Saint Vincent Health Center for viral
gastroenteritis (R. at 265). She had been vomiting and had diarrhea for four to five hours. She
was admitted to the hospital for fluids and follow up care
CR. at 267-68). She was discharged on
December 12, 1990.
On December 17, 1990 Plaintiff was readmitted to Saint Vincent Health Center with
vomiting, diarrhea, and dehydration (R. at 309). She was discharged on December 27, 1990 to
go to Children's Hospital of Pittsburgh for evaluation of a possible milk allergy (R. at 311).
Plaintiff was admitted to Children's Hospital of Pittsburgh from December 27, 1990 to
January 6, 1991. She initially struggled with gaining weight but eventually began gaining again
when baby foods were reinserted back into her diet (R. at 683-84). Plaintiff underwent many
tests, none of which were conclusive for the cause of her vomiting and dehydration.
On January 11, 1991 Plaintiff was readmitted to Saint Vincent Health Center for
vomiting, diarrhea, and dehydration (R. at 387). X-rays were taken of her abdomen at this time.
The following impressions of the x-ray were reported by Dr. Floyd R. Hyatt:
I We note here that there is a discrepancy in the record. The record also states that the Plaintiffs bowel resection
surgery occurred when she was 4 days old and that the reanastomosis occurred at 4 months.
3
Three is no free air within the peritoneal cavity. There is moderate gaseous
dilatation of right colon and portions of the transverse colon. Note is made of
some apparent free intramural air within the right colon waJl laterally and about
the region of the colon in the pelvis. This is compatible with pneumatosis
intestinalis. This could be idiopathic. Possibility of an enterocolitis is certainly a
consideration and clinical correlation is recommended. (R. at 470).
Plaintiffs abdomen was x-rayed on a regular basis to diagnose abnormalities. Plaintiff
was diagnosed with pheumatosis which resolved CR. at 474). Hospital staff was unable to insert
an IV for fluids so a "cut down" had to be performed. Plaintiff stayed in the hospital for an
extended stay to attempt to increase her caloric intake, improve her diaper dermatitis, and
monitor her bowel movements (R. at 381-474). A consistent note in her record was "Failure to
Thrive." On the twenty-fifth day, Plaintiff was discharged from the hospital (R. at 477). Upon
discharge it was recommended that Plaintiff have her carbon dioxide levels checked (R. at 479).
April 28, 1991 Plaintiff was admitted to Saint Vincent Health Center for vomiting and
mild dehydration. Abdominal x-ray showed multiple dilated loops of bowel (R. at 486). She
had a diagnosis of ileus and an NO tube was placed for suction and she was kept NPO and given
IV hydration. She had two loose stools and discharged the next day (R.at. 482).
Plaintiff was hospitalized from May 6, to May 13, 1991 at Children's Hospital of
Pittsburgh.
In a report to Saint Vincent Health Center, Dr. Samuel Kocoshis reported that
Plaintiff is experiencing growth failure but that testing revealed no unusual findings. He did
diagnose an allergy to cow's milk protein but found Plaintiff tolerated all other foods. He did not
note any malabsorption issues but rather noted that follow up should be cognizant of the
possibility of an intermittent distal small bowel obstruction which can be attributable to
adhesions and such entities as internal herniae CR. at 682).
On May 27, 1991 Plaintiff was once again admitted to the hospital with vomiting 9-10
times in two hours. Plaintiff having been diagnosed with a milk allergy had not had any milk but
4
had tried an egg yolk for the first time (R. at 505). Discharge from the hospital was on June 3,
1991 (R. at 505) with a diagnosis of (1) Acute egg allergy; (2) enteritis; (3) milk allergy; and (4)
short bowel syndrome (R. 507). At the hospital a barium contrast was taken. A large amount of
barium was placed in the stomach and passed rapidly into the small bowel without evidence of
pylorospasm. The mucosal folds in the duodenum and proximal ileum are thickened suggesting
the possibility of a malabsorption process or possibility of cystic fibrosis. Distal small bowel
loops are dilated but transit time through the bowel to the colon is within the range of normal and
no functionally significant stricture is identified. The vast majority of the barium is identified
within the colon within 6 hours following the study and the majority of the barium is seen in the
colon 2 hours following the study (R. at 533).
On June 18, 1991 Plaintiff's mother brought her to Saint Vincent's Health Center because
Plaintiff only had one bowel movement and said she felt like she needed to go but couldn't. An
x-ray revealed negative results and Plaintiff was discharged with directions to push fluids (R. at
593-94).
On October 13, 1991 Plaintiff was seen at Saint Vincent's Health Center for bilateral ear
pain, mild gastroenteritis and dermatitis of the scalp. Plaintiff was told to drink clear fluids and
provided with prescription antibiotics and shampoo and discharged (R. at 597-98).
On April 16, 1992 Plaintiff visited Saint Vincent's with a cold and was having difficulty
breathing. She was discharged without treatment
CR. at 603).
On April 23, 1992 Plaintiff visited Saint Vincent's Health Center with left otitis media
and bilateral conjunctivitis (R. at 600). She was prescribed antibiotics and discharged.
5
On October 21, 1992 Plaintiff presented for a milk challenge test. She had a diagnosis of
record of microcolon and status post milk induced protein losing enteropathy
CR.
at 535).
Plaintiff tolerated milk test without incident CR. at 536).
On March 13, 1999 Plaintiff was admitted to Saint Vincent's Health Center for acute
gastroenteritis and partial small bowel obstruction
CR.
at 553). Plaintiff had a nasogastric tube
inserted for stomach distention. It was later removed and Plaintiff was discharged on March 17,
1999 CR. at 555).
On July 4, 1999 Plaintiff presented to Saint Vincent's Health Center with an itchy red
rash on her face, neck, trunk, and arms. She was diagnosed with allergic dermatitis perhaps due
to exposure to a dog. She was given medicine and discharged
CR. at 604).
April 12,2001 to April 14 2001 Plaintiff was admitted to Saint Vincent's Health Center
for a partial small bowel obstruction
four days
CR. at 609).
CR.
at 608). She had been vomiting and had diarrhea for
She was treated and released.
October 4, 2001 Plaintiff reported to Saint Vincent's Health Center with abdominal pain
and distension. Intake thought it to be a possible twisting of the bowel, but an abdomen x-ray
series did not find any abnormalities (R.at 724). She was treated with clear fluids and discharged
(R. at 720).
January 27, 2003 Plaintiff presented with diarrhea and nonproductive cough. PlaintitI's
mother stated, "Whenever she has diarrhea like this, if she does not rest her bowels for 24 hours,
[she] will develop bowel distension similar to [an] obstruction." (R. at 641). She was treated for
acute dehydration due to short gut syndrome (R. at 641). She was provided with the following
assessment and plan:
(1) Acute viral illness, upper respiratory infection, likely exacerbating her
sensitive bowel with history of short gut syndrome. At this point in time will
6
check RSV and influenza, she has not had her vaccine, and viral cultures and treat
symptomatically. (2) Dehydration secondary to (1). The patient has already been
given a bolus of normal saline in the emergency department. Will replace her
deficit as if it were 55 with D5 half normal saline and recheck a BMP in the a.m.
(3) Diarrhea, likely related to short gut syndrome. Will heme test her stool times
3 and keep the patient n.p.o. at this point in time until she is reassessed in the
morning. (R. at 649).
On April 16, 2007 Plaintiff reported to Saint Vincent's Health Center with complaints of
abdominal pain. Plaintiff said she thinks she may have drunk too much coke and Jell-O CR. at
695). Plaintiff was experiencing nausea and vomiting. Test results showed no abnormalities.
She was treated with fluids and discharged.
January 22, 2008 Plaintiff visited Children's Hospital of Pittsburgh for a GJ consultation with
Dr. David Keljo. Plaintiffs mother reported that a question has been raised that Plaintiff may
have a loop of bowel in her abdomen that may be causing her problems with intermittent
obstruction (R. at 670). The doctor ordered a barium enema and an upper GJ and small bowel
follow through (R. at 670). Doctor planned to also check for a vitamin deficiency CR. at 670).
The findings of the Barium enema revealed a "[ d]itIusely distended small bowel on the post
evacuation image likely related to the patient's history of short bowel syndrome and bowel
resection." (R. at 675). There were no abnormalities identified on the upper GI series or small
bowel follow through in a patient with a history of short gut syndrome (R. at 676).
On February 4,2008 Plaintiff and her family sought a surgery consult with Dr. Aviva Katz at
Children's Hospital of Pittsburgh (R. at 679-80).
Dr. Katz reported that Plaintiff was well
developed and has reached her developmental milestones appropriately (R. at 679). She also
reported that Plaintiff's time between meals and bowel movements has increased and Plaintiff is
able to sleep through the night without having a bowel movement (R. at 679). Based on the
7
barium test, the surgeon saw no reason for surgery and suggested the use of Imodium or Lomotil
to increase transit time CR. at 680).
October 25, 2010 Plaintiff attended a follow up visit at Community Health Net. Plaintiff
reports being tired despite being prescribed iron supplement.
Plaintiff reported psychosocial
stressors causing her panic attacks and sudden episodes of palpitations, shortness of breath, and
chest pain. Doctor E. Jason Grande prescribed Clonazepam for now but if symptoms persist he
would suggest moving her to psychotherapy CR. at 793).
On December 1, 2010 Plaintiff visited Community Health Net for a follow up. Plaintiff
reported easy fatigability and that she had no energy but denied feelings of depression (R. at
785). Plaintiff reported panic attacks (R. at 785).
On December 29, 2010 Plaintiff attended Community Health Net for a follow up. Plaintiff
continued to complain of fatigue for almost two years. Labs were performed ~ a CBC as well as
a TSH
all lab results were returned normal. The report stated that B 12 injections were working
(R. at 792). Dr. Grande believed that Plaintiff may suffer from dysthymia but Plaintiff declined
medication until after the holidays. A refill for iron and a prescription for Augmentin for a
respiratory tract infection were prescribed
CR. at 792).
On January 17,2011 through January 20,2011 Plaintiff was admitted to Saint Vincent's
Health Center for a partial small bowel obstruction. An x-ray revealed fluid distention of almost
all the entire small bowel. There was some fluid distention of the ascending and transverse colon
CR. at 761). Some areas of narrowing in the sigmoid colon likely reflecting areas of spasm but
doctor indicated they should be followed (R. at 762). Plaintiff also had secondary diagnoses of
chronic fatigue, alopecia, and a history of pernicious anemia (R. at 726). Plaintiff was treated
8
with IV fluid and a G-tube which was set at low suction. She was placed on n.p.o. (R. at 726).
Surgery was not necessary.
April 18-19, 20 II Plaintiff attended Saint Vincent's Hospital Emergency Department
complaining of vaginal bleeding. Plaintiff was 11 weeks pregnant had intermittent bleeding for
5 hours. Primary diagnosis was missed abortion (miscarriage) (R. at 799).
Plaintiff provided the following lists as her current medications: 1000 mcg of 1M B12 for
severe/critical deficiency; 1OOOmcg of Vitamin B 121M injection for severe deficiency; 325 Iron
Sulfate for Pernicious Anemia; Imodium for loose runny frequent stools, and vancomycin iv for
c difficil (R. at 195).
Summary of Testimony
Claimant's past work history includes the position of packer from June 2008 through April
2009, server from August 2007 through June 2008 and again she was a server in April of 2009
(R. at 75, 193). The most recent work of Plaintiff was as server/dietary aid at Niagara Village, a
retirement community, intermittently on a part time basis from May 16, 2009 until March 10,
2011. However due to her medical conditions, it was reported that she frequently fell asleep at
work
CR. at 245).
Claimant alleged performing few, if any, household chores. Plaintiff performs
occasional cooking, house cleaning, and laundry (R. at 215). Plaintiff needs no help in personal
care or with handling her finances (R. at 215, 216). The overall evidence suggests that she has
the ability to care for herself and maintain her home. She does not attend physical therapy. She
does not require an assistive device to ambulate. She does not use a Tens unit. She has not been
prescribed narcotic medication for any claimed impairment (R. at 71).
Plaintiff describes her daily routine as, "I wake up at 4:00PM. Get ready for work. 1 go to
work from 5:25-7:30. I go home, eat, and nap until 10-11. Shower. See friends, or play on the
9
computer and go to bed at 3 :OOAM." (R. at 213). Plaintiff further states that she has always had
her complained of condition but it is getting progressively worse and she sleeps most of the day
and part of the night after work (R. at 214).
Plaintiff lists her limitations as follows: Not able to lift more than 20 pounds, knees go out
from kneeling, eyesight is worsened each year, can't concentrate or remember (R. at 218). She
notes pain in her head, neck, shoulders, and back (R. at 221). PlaintitI takes Tylenol two times a
day and says it sometimes relieves the pain for a couple hours (R. at 222). She wears a wrist
brace for work and has never attended physical therapy CR. at 222).
On January 21, 2011 Dr. John 1. Kalata, a non-treating consultative physician examined
Plaintiff. Dr. Kalata's physical examination of Plaintiff was reported as generally normal (R. at
771-777).
He noted some abnormalities of the abdomen that included tenderness and mild
distension that may need follow up (R. at 69).
abnormalities (R. at 69).
He also noted some slight musculoskeletal
The following medically determinable impairments were found:
Severe Granulomatous Colitis, severe atTective disorders, and severe anxiety disorders (R. at 69).
However, the affective and anxiety disorders did not satisfy the diagnostic criteria for the listings
CR. at 69-70) [See ECF No. 13 at 11-16]. He noted the following:
IMPRESSION: 1. Recurrent abdominal pain with recurrent incomplete bowel
obstruction. 2. Probable massive abdominal adhesions. 3. Remote history of
necrotizing enterocolitis as a neonate status post resection and re-anastomosis,
with ongoing residuals: A. Dumping syndrome. B. Chronic vitamin BI2 and
other vitamin deficiencies. C. Possible malabsorption. 4. Anxiety disorder with
panic attack. 5. Dysthymia versus clinical depression. 6. History of memory loss
and organization lack, likely secondary to previous B 12 deficiency. 7. Residual
of previous right ring finger injury. 8. Metromenorrhagia. 9. Diminished visual
acuity bilaterally despite corrective lenses. 10. History of cold intolerance and
hair loss, rule out hypothyroidism. 11. Tobacco, abuse, chronic. CR. at 777).
Dr. Kalata states that Plaintiff can only lift and carry up to 10 pounds frequently, and 20
pounds occasionally due to fatigue. She can only stand and walk for 1-2 hours and can only sit
10
3-4 hours. He also reported she is limited in her lower extremity CR. at 780). Dr. Kalata reported
that "the claimant is limited in standing, walking, lifting, carrying, sitting, pushing and pulling.
She can occasionally bend, kneel, stoop, crouch and balance but should never climb." CR. at 67
and 781). Finally he stated that she should be restricted from working with heights and moving
machinery CR. at 781 ).
The Disability Report from the Field Office stated:
Taylour was born 12 weeks early. She has had 5 surgeries which resulted in short
bowel syndrome. The part of the bowel removed was the section which absorbs
vitamins and minerals. This has caused her to have severe deficiencies which
cause migraines, tooth erosion, poor eyesight, memory problems, balance issues,
persistent loose stools, exhaustion and several other concerns. She has been an
inpatient approximately 52 times since her birth. Taylour has had numerous tests
and medications. She has been dealing with a true milk protein allergy which
limits the amount of and type of food she is able to eat. She is unable to work full
time due to these issues. Taylour was diagnosed with Organic Failure to thrive as
a baby and was on SSI. SSI would allow Taylour to be able to access the
appropriate medical professional and medications to keep her alive. Without the
medication and regular supervision of her conditions she could die. CR. at 199).
In contrast to the reports above, Plaintiffs Physical RFC findings were she could
occasionally lift 20 pounds and frequently lift 10 pounds, she could sit, stand or walk with
normal breaks about 6 hours in an 8 hour day, and she had no restrictions for pushing or pulling.
CR. at 71). Two doctors, Dr. George Ondis, Ph.D., a DDS psychologist, and Dr. Reynaldo Torio,
a DDS physician reviewed Plaintiffs matter (R. at 28).
Dr. Torio provided the following statement:
The residual functional capacity assessment partially ref1ects the opinion of John
J. Kalata, D.O. The residual functional capacity assessment ref1ects certain
aspects of the opinions contained in the report received ... , The nontreating
source states in the report that the claimant is limited in lifting, carrying, standing,
walking, sitting, pushing, pulling and climbing and that she should avoid exposure
to heights and moving machinery. These observations are fairly consistent with
other evidence in the file. . .. Therefore, the report submitted by John J. Kalata,
D.O., ... is given appropriate weight. CR. at 72)
II
Dr. Ondis found Plaintiff to have sustained concentration and persistence limitations, and
found her moderately limited in this area. He further found her moderately limited in her ability
to maintain a schedule, and regular attendance as well as her ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms CR. at 73).
Nevertheless, overall Dr. Ondis found:
The claimant can make simple decisions. The claimant is able to carry out short
and simple instructions. Although somewhat limited in this regard by her
psychiatric impairments, the claimant is able to maintain concentration and
attention for reasonably extended periods of time when performing routine and
repetitive work. The claimant would be able to maintain regular attendance and
be punctual within reasonable expectations when provided a consistent work
schedule. The claimant would not require special supervision in order to sustain
an ordinary work routine. The claimant would be expected to complete a normal
week without exacerbation of psychological symptoms when performing routine
and repetitive work within a consistent work schedule. CR. at 73)
Dr. Ondis only found Plaintiff to be moderately limited in her ability to interact
appropriately with the general public CR. at 73). He also found her moderately limited in
her ability to respond appropriately to changes in the work setting CR. at 74).
IV. Standard ofReview
The Congress of the United States provides for judicial review of the Commissioner's
denial of a claimant's benefits. See 42 U.S.c. § 405Cg)(2012).
This Court must determine
whether or not there is substantial evidence which supp0l1s 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
12
substitute its own conclusions for that of the fact-finder. See 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 ditferently
decided the factual inquiry).
To determine whether a tinding is supported by substantial
evidence, however, the district court must review the record as a whole. 5 U.S.C. § 706(1)(F)
(2012).
V. 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)(1); 423(d)(1)(A); 20 C.F.R. § 404.1505
(2012). A person is unable to engage in substantial activity when:
[Sh]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).
In determining 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 determine 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.
§ 404.1 520(a)(4)(i). At step two, the Commissioner must determine whether the claimant has a
severe impairment. See id. at § 404. 1520(a)( 4)(ii). If the Commissioner determines that the
13
claimant has a severe impairment, he must then determine whether that impairment meets or
equals the criteria of an impairment 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 determine whether the claimant's impairment or
impairments
prevent
her
from
performing
her
past
relevant
work.
See
id.
at
§ 404.1 520(a)(4)(iv). If so, the Commissioner must determine, at step five, whether the claimant
can perform 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; Svkes v. Apfel, 228 F.3d 259,262-63 (3d Cir. 2000).
In this case, The AL] determined that the claimant has the following impairments: short
bowel syndrome, anemia, vitamin B-12 deficiency, dysthymic disorder, and panic disorder (R. at
24). However, he determines that the Claimant does not have an impairment or a combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 4040, Subpart P, Appendix 1 (20 C.F.R. § 404.1 520(dO, 404.1526, 416.920(d),
416.925, and 416.926) (R. at 25). The ALT, in his report, takes great care in considering each
impairment, both physical and mental, with regard to the listings and provides substantial
evidence as to why the impairments do not qualify Plaintiff for benefits (See R. at 25-26).
The Commissioner, moving forward, uses the sequential evaluation process and
determines at step (4) that the Plaintiff has no past relevant work (R. at 30) and at step (5) that
the Plaintiff has not met her burden of proof that she cannot work in some capacity in the
national economy.
The Commissioner relied on the AU's determination that despite the
Plaintiffs impairments, Plaintiff retained the capacity to perform a full range of sedentary work
(R. at 27).
14
The ALl also determined the Claimant's statements are not credible to the extent they are
inconsistent with his RFC assessment (R. at 28).
"I find that the claimant's medically
determinable impairments could reasonably be expected to cause the alleged symptoms; however
the claimant's statements concerning the intensity, persistence, and limited effects of these
symptoms are not credible." (R. at 28). While certainly the Plaintiff had a difficult start to life
with frequent and extended hospital stays, the record lacks a recent medical history that would
support her symptoms interfering with her ability to work. There are simply no medical reports
or doctors who provided any evidence that PlaintitI's condition is debilitating. Despite the lack
of supporting medical evidence, the ALl took an exceedingly conservative approach and
assigned Plaintiff the following allowances when requesting comment from the VE:
After careful consideration of the entire record, the [ALl) tind[ s) that the claimant
has the residual functional capacity to perform the full range of sedentary work as
detined in 20 CFR 404.1567(a) and 416.967(b). The claimant may never climb
ladders, ropes or scaffolds, but she may occasionally climb ramps and stairs. She
may occasionally balance stoop, kneel, crouch, or crawl. Due to her impairments,
the claimant must avoid even moderate exposure to unprotected heights,
dangerous machinery, and like hazards. She is limited to understanding,
remembering, and carrying out simple instructions and performing simple,
routine, tasks. She may have only occasional and superficial interaction with co
workers and the public that does not involve transactional interactions, such as
sales or negotiation. The claimant is limited to a low stress work environment,
which means involving no production rate paced work, but, rather goal oriented
work with only occasional and routine changes in the work setting. CR. at 27).
With these restrictions in mind and based on the VE's testimony, the ALl found that
Plaintiff could perform jobs that existed in significant numbers in the national economy and,
therefore, was not disabled under the Act (R. at 31). More specifically, the VE testified that
given all the factors involved in Plaintiffs case, she would be able to perform the requirements
of representative occupations such as billing and posting clerk (80,000 jobs nationally), credit
checker (48,000 jobs nationally), and order clerk (101,000 job nationally) CR. at 31). The AU
15
questioned the VE about whether those positions would still be available to a person who would
need to leave the work area for short bathroom breaks. The VE responded that the positions
could accommodate such a need (R. at 61-61). After further inquiry by the ALT, the VE said that
there would be no jobs in the economy that could support a person being off-task 25% or falling
asleep on the job (R. at 62).
In support of her motion for summary judgment, Plaintiff argues that the ALJ's decision
summarily dismisses the Plaintiff's allegations regarding her impairments and erroneously fails
to adequately evaluate whether the Plaintiff functionally meets the listed impairments in any way
[ECF Nol. 9 at 8]. We disagree. We believe the ALJ laboriously covered each impairment and
meticulously explained why each of Plaintiff's symptoms failed to meet listed criteria.
Plaintiff further contends that the ALJ focused on mental impairments rather than
physical impairments and uses Plaintiffs ability to perform household chores as an indication
that she is able to work [EeF No. 9 at 8] "Performing household chores is very different from
working eight hours a day in a labor-intensive job." Stroman v. Astrue, 2009 U.S. Dist. LEXIS
10491,147 SSR 73 (Nov. 4, 2009). On the other hand, activities of daily living are relevant and
may be considered in evaluating a claimant's symptoms. See 20 C.F.R. § 416.929(c)(3)(i). We
believe that the ALJ gave adequate consideration to Plaintiff's mental capacity, especially in
light of the dearth of information on the record regarding her anxiety and dysthymia issues. In
addition, we find the AL.I properly considered the Plaintiffs daily life activities in relation to her
ability to work.
Finally, Plaintiff takes issue with the weight the AU gives the medical opinions from
Drs. Ondis and Torio, while giving less weight to Dr. Kalata the consultative examining
physician rECF No.9 at 9]. The opinions of non-examining medical sources are to be "weighed
16
by stricter standards, based to a greater degree on medical evidence, qualifications, and
explanations for the opinions than are required for treating sources." (Social Security Rule 96
6p).
[B]ecause nonexamining sources have no examining or treating relationship with
[the Plaintiff], the weight we will give their opinions will depend on the degree to
which they provide supporting explanations for their opinions. We will evaluate
the degree to which these opinions consider all of the pertinent evidence in your
claim, including opinions of treating and other examining sources.
20 C.F. R. § 416.927(c)(3).
Generally more weight is to be given to the opinions of an examining source than
to the opinions of non-examining sources, and even more weight is generally given to the
opinions of the treating source.
20 C.F.R § 416.927(c)(I) and (2). The Third Circuit
precedent provides that the ALl must analyze all relevant, probative evidence and
provide adequate explanation for disregarding evidence. See Fargnoli v. Massanari, 247
F.3d 34 (3d Cir. 2001); Burnett v. Commissioner, 220 F.3d 112, 121-22 (3d Cir. 2000);
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Cotter v. Harris, 642 F.2d 700 (3d
Cir. 1981).
In this case we have no recent or relevant comment from treating physicians with
the exception of Dr. Grande who is treating Plaintiff's mental conditions in a
conservative manner thus far.
physician on record.
Dr. Kalata is the only examining (albeit consultative)
However, his report is seemingly reliant on Plaintiffs own
testimony of her condition, which when viewed against the record or lack thereof, is
overstated.
Finally, we have the testimony of Drs. Ondis and Torio who reviewed
Plaintiff's record and provide their opinions which are most consistent with Plaintiff's
17
current medical history.
We believe the ALl properly weighed each physician's
testimony.
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
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
the claimant (1) is working; (2) has a severe impairment; (3) has a listed impairment; (4) can
return to his 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 past work or any other work in the economy. Should the Commissioner satisfy
step 4, then the Plaintiff bears the burden of proving that his RFC or limitations are that which do
not allow for any work in the national economy.
Heckler v. Campbell, 461 U.S. 458, 460
(1983); Matthews v. Eldridge, 424 U.S. 319, 336 (1976). Moreover, the ALl is not required to
uncritically accept Plaintiff's complaints. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356,
363 (3d Cir. 2011). The ALl, as fact finder, has the sole responsibility to weight a claimant's
complaints about his symptoms against the record as a whole.
20 C.F.R. §§ 404.1 529(a),
416.929(a).
When the medical evidence of record conflicts, "the ALJ may choose whom to credit but
'cannot reject evidence for no reason or for the wrong reason.'"
Plummer v. Apfel, 186 F. 3d
422,429 (3d Cir. 1999). The ALl may reject a treating physician's opinion outright only on the
basis of contradictory medical evidence, and not on the basis of the Commissioner's own
judgment or speculation, although he may afford a treating physician's opinion more or less
18
weight depending upon the extent to which supporting explanations are provided. See Plummer,
186 F.3d at 429.
We find that the ALJ provided substantial evidence for his determination that Plaintiff
could perform a full range of sedentary work taking into account her various impairments.
Plaintiffs complaints alone do not serve to provide a medical record that will support a
determination of disability. There must be medical evidence from treating physicians, examining
physicians, and non-examining physicians or some combination of the three that agrees with the
claims that Plaintiff makes to support a finding of disability. In this case we have a plethora of
information from Plaintiff s infancy and childhood that substantiates her claims.
However,
Plaintiffs recent records indicate bouts of illness and fatigue but no ongoing treatment that
would demonstrate that the Plaintiff is disabled. The report of Dr. Kalata provides the most
support for Plaintiffs case, but on its own, and in light of the other medical evidence of record. it
does not support a determination of disability.
Therefore, it is our opinion the ALl's
determination is supported by substantial evidence of record.
VI. 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
Defendant's Motion for Summary Judgment is granted. The Plaintiffs Motion for Summary
Judgment is denied. An appropriate order will be entered.
Date: ~ ';;2
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8. CoM . .V .
Maunce B. Cohill, Jr.
Senior United States District Court Judge
counsel of record
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