JOHNSON v. ASTRUE

Filing 19

MEMORANDUM OPINION re 7 MOTION for Summary Judgment filed by BETHANY JOHNSON, 17 MOTION for Summary Judgment filed by MICHAEL ASTRUE. There is substantial evidence existing in the record to support the Commissioner'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 5/12/2014. (cag) Modified on 5/12/2014. (cag, )

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BETHANY JOHNSON

)

)

Plaintiff,

)

Civil Action No. 13-240E

)

v.

)
)

CAROL YN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,

)
)
)
)

Defendant.

)

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 Bethany Johnson
("Plaintiff' or "Claimant") for

benefits

under Title II

("Social

Security

Disability

Income")("SSDI") of the Social Security Act, pursuant to 42 U.S.c. § 1382(c)(3) (2013).
Plaintiff argues that the decision of the Administrative Law Judge (,"ALJ") was erroneous and
contrary to law [See ECF No. 1 at 2]. As such the Plaintiff requests that benefits be awarded to
Plaintiff retroactive to the date of initial disability [ECF No.1 at 3].
To the contrary, Defendant argues substantial evidence supports the Commissioner's
decision. "Although Plaintiff had mental and physical impairments, she acknowledged she was
working during the period of alleged disability for up to 30 hours per week in a light duty job,
spent up to 40 hours per week cleaning her own home, and cared for three children [ECF No. 18
at 1]. 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
On October 12, 2010 the Plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits ("DIB"), alleging disability beginning April 13, 2010
(R. at 12).

Plaintiff alleges disability due to repeated right shoulder rotator cuff tear with

multiple surgical repairs, post-traumatic stress disorder ("PTSD"), bipolar disorder, mood
disorder, obsessive compulsive disorder ("OCD"), attention deficit hyperactivity disorder
("ADHD"), and generalized anxiety disorder [ECF No.8 at 1]. Plaintiff's claims were denied at
the initial level of the administrative review process on February 14,2011 (R. at 12). On April 7,
2011 Plaintiff requested a hearing (R. at 12). ALJ David F. Brash conducted a de novo video
hearing on April 4, 2012 (R. at 12) where Plaintiff was in Erie, Pennsylvania and the ALJ was in
Mars, Pennsylvania.

Present for the hearing was an impartial Vocational Expert ("VE"),

William H. Reed, Ph.D. (R. at 12). On May 3,2012, the ALJ determined that Plaintiff was not
disabled under the Social Security Act (R. at 9-21). The Plaintiff filed a timely written request
for review by the Appeals Council which was denied on June 11, 2012

CR. at 1-2), making the

AU's decision the final decision of the Acting Commissioner. An appeal was subsequently filed
by Plaintiff who seeks our review of the ALl's decision.
III. Medical History

June 15, 2005 Dr. Fuat Ulus of St. Vincent Health Center reported that Plaintiff was referred
to the program when Wellbutrin, Lexapro, Xanax and Effexor were ineffective for treating
Plaintiff's anxiety, depression and low frustration tolerance. Patient had anxiety and depression

2

for three years starting during a time of postpartum. She had increased sleep and appetite with
weight gain. She was irritable and less social. There was a history of a car accident with head
trauma (R. at 294). The St. Vincent report stated Plaintiff has a Current Olobal Assessment of
Functioning ("OAF")] of 60-65 (R. at 295).

Dr. Ulus ordered an EEO to rule out any

neurological problems before entering the psychiatric jurisdiction (R. at 295).
August 2, 2005 Dr. Ulus of St. Vincent Health Center reported that Depakote had really
started to help Plaintiff's mood stabilization and anger management. Plaintiff's OAF was 65 (R.
at 292).
February 22, 2006, during a visit to St. Vincent Health Center, Plaintiff reported being
frustrated, anxious, and depressed. She further reported that her medications were not helping
and were all discontinued for a regimen of Top am ax CR. at 291).
On August 31, 2006 Plaintiff met with Dr. Ulus at St. Vincent Health Center. She continued
on Topamax and agreed to see a counselor for cognitive behavioral therapy and management of
her Obsessive CompUlsive Disorder ("OCD"), anxiety and other difficulties (R. at 289).
On October 24, 2008 Plaintiff underwent a psychiatric evaluation with Rose Ann R. Flick,
CRNP at St. Vincent Health Center. Plaintiff was fearful that she might relapse into a manic
episode due to stressors. Plaintiff's OAF was noted at 65-68 and she was reported to be wellgroomed and pleasant. Plaintiff was prescribed Topamax for headaches and mood stabilization
and Klonopin for anxiety and agitation. Supportive psychotherapy was suggested for herself and
her family (R. at 285-288).

Diagnostic impressions were: PTSD, adjustment disorder, and

Bipolar I affective disorder mixed, mild to moderate (R. at 287).

I The GAF scale, devised by the American Psychiatric Association, ranges from zero to one hundred and is used by
a clinician to indicate an overall judgment of a person's psychological, social, and occupational functioning.
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV -R), The greater the number the higher the
functioning of the individual

3

On November 21, 2008 Plaintiff was seen on an outpatient basis at St. Vincent Health
Center. Plaintiff reported doing better at work and said her frustration was gone. She was also
sleeping better and was more productive (R. at 284).
On May 11, 2009 Plaintiff was seen on an outpatient basis at St. Vincent Health Center.
Plaintiff was feeling overwhelmed and depressed because her son was in trouble with drugs. The
assessment had a note of GAF of 60 (R. at 283).
On August 13,2009 Plaintiff was seen for ADHD and Generalized Anxiety Disorder (GAD).
Plaintiff reported that her current medication was not addressing her anxiety. Her dosage of anti­
anxiety medication was increased (R. at 282).
On April 28, 2010 Plaintiff was seen at St. Vincent Health Center and reported having
difficulty concentrating, focusing, and completing tasks. She was prescribed Adderall (R. at
281).
On April 1 I, 20 10 Plaintiff visited Hamot Medical Center Emergency Department after a slip
and fall accident. Plaintiff reported right arm pain for four days since the fall. She was unable to
raise her right arm (R. at 309). She was discharged with a diagnosis of Bursitis (R. at 310).
April 21, 2010 Plaintiff had initial visit with Dr. Jeffrey Nechleba regarding her right
shoulder pain. X-rays were normal. The Doctor suspected rotator cuff injury and ordered an
MRI (R.at 376). In the meantime Plaintiff continued in physical therapy to improve her motion
(R. at 377).

On May 4, 2010 an MRI of Plaintiffs right shoulder was performed.

"Impression: 1.

Supraspinatus Full-Thickness tear at its insertion. 2. Small joint efIusion and small amount of
fluid within subacromial-subdeltoid bursa."

CR. at 320).

4

On June 3, 201 0 Plaintiff underwent surgery for a right shoulder massive rotator cuff tear.
The procedure included diagnostic arthroscopy, arthroscopic bursectomy, and mini open repair
of massive rotator cuff tear. The anchors were Arthrex 5.5-mm Bio corkscrews for a medial row
and then 3 Bio Push-Locs out laterally. Insertion of pain pump catheter into the subcromial extra
articular space (R. at 303).
On October 15, 201 0 Dr. Jeffrey Nechleba saw Plaintiff for a visit after a fall about a month
and a half prior. Plaintiff fell in the first two months after surgery to repair rotator cuff. The
Doctor waited to see if the pain would settle after therapy but the pain persisted. Dr. Nechleba
performed an MR arthrogram of her right shoulder. The MR was accomplished in the axial,
oblique coronal and sagittal planes.

There was considerable artifact generated by metallic

component of surgical hardware, with anchors noted within humerus. There was fluid seen
throughout the subacromial Isubdeltoid bursa which would be evidence of a recurrent full
thickness or rotator cuff tear. Visualized portions of the rotator cuff were found to be quite
attenuated. There was some obscuration by artifact. There was some contrast material within
the subscapularis tendon, which was possibly iatrogenic. Labrum was intact as were the biceps
tendon and anchor. Findings were consistent with a recurrent full thickness rotator cuff tear (R.
at 318). Dr. N echleba scheduled another rotator cuff surgery (R. at 312).
On November 5, 2010 Plaintiff was seen for outpatient psychiatric treatment at St. Vincent
Health Center where she said she was feeling "a little depressed."

Plaintiff began taking

antidepressant medication (R. at 280, 552).
On November 8, 2010 Plaintiff had a second rotator cuff operation for a re-tear of her rotator
cuff (R. at 257). Diagnosis was right shoulder partial thickness articular-sided rotator cuff tear
and biceps tear (R. at 257).

At the Village Surgicenter, Dr. Jeffrey Nechleba performed

5

diagnostic arthroscopy with bursectomy and then biceps tenodesis and then mini open rotator
cuff repair. Anchors were 3 medial row 6.5 mm Arthrex Bio-corkscrews, PEEK, and then 2
swivel-licks placed laterally for a double-row repair

CR. at 257).

Kathy Sullivan provided a report on behalf of Jeffrey A. Nechleba on November 19, 2010.
Plaintiff had a post-op appointment after a re-tear of her rotator cuff. Appointment was normal
and she was provided with a prescription to begin physical therapy ("PT') the following week

(R. at 217).
December 8, 2010 report from St. Vincent's Behavioral Health states that Plaintiff reports
she is happy with the Celexa and wishes to continue. Other medications were working well (R.
at 551).
December 22, 2010 Dr. Nechleba saw Plaintiff for follow up of her right shoulder redo
rotator cuff repair. Her motion was coming along as expected and the pain had settled down.
Plaintiff reported carpal tunnel type symptoms in her right hand and a little bit of trapezial pain
that they will work on in PT with moist heat (R. at 375).
On February 4, 2011 Lamar Neal, Psy.D. evaluated Plaintiff for the Bureau of Disability
Determination.

Plaintiff presented with complaints of poor attention and inability to follow

directions. She said she becomes uncomfortable in a crowd or around men (R. at 225). She also
reported frequent headaches

CR.

at 226). Plaintiff had been in and out of therapy since 1987.

Plaintiffs 2005 disability paperwork reported a diagnostic impression of PTSD and mood
disorder CR. at 226). Plaintiff was seeing Psychiatrist Dr. Napoli but was not currently treating
with a therapist. During the examination, Plaintiffs eye contact was poor and she was mildly
anxious/fidgety (R. at 229). She said she was always angry

CR.

at 229) and had a history of poor

sleep (R. at 230). She also reported repressed feelings with low motivation and withdrawal. She

6

had ongoing nightmares of past abuse (R. at 230). Dr. Neal reported Plaintiff as having low
average intellectual ability. Overall, though, she maintained relatively adequate cognition with
mild thought blocking. Her frustration tolerance and persistence were only fair at best (R. at
230).
Dr. Neal had the following impressions: Bipolar II disorder, PTSD - chronic, ADHD (by
history only), Chronic Obstructive Pulmonary Disease ("COPD"), edema, and rotator cuff
surgery. Plaintiffs GAF was 55 CR. at 231). Dr. Neal found Plaintiffs demeanor to be guarded
and she reported to him that she has significant withdrawal. Based on these characteristics he
noted, "This may cause her difficulty in managing constructive criticism or a supervisory
relationship."

CR. at 232).

He reported that Plaintiff has low to average intelligence and

persistence is lacking due to low frustration tolerance (R. at 233) and is easily overwhelmed (R.
at 233). However, the Plaintiff can manage her own benefits and finances CR. at 234). Dr. Neal
reported slight to moderate restrictions in work·related mental activities such as understanding
and carrying out instructions or making work-related decisions (R. at 233), and moderate
restrictions in Plaintiffs ability to interact and respond appropriately in a work setting (R. at
233). Based on the Plaintiffs interview, Dr. Neal stated the prognosis for positive change was
considered guarded (R. at 231).
March 2, 2011 Plaintiff attended a follow up visit with Dr. Nechleba after re-tear repair. The
Doctor reported she is coming along nicely.

Plaintiffs range of motion ("ROM") was

improving. She had about 165 degrees of forward flexion, abduction, internal rotation to her
lower thoracic. Her strength was a bit weak but Plaintiff was able to give resistance so it could
be improved. Dr. Nechleba wanted PlaintitI to continue therapy three times a week for the next
six weeks (R. at 379).

7

A March 4, 2011 report from St. Vincent's Behavioral Health found Plaintiff was doing well
on current medications (R. at 550).
On March 10, 2011 Plaintiff went to UPMC Hamot due to right shoulder pain CR. at 322).
Hamot Medical Center Department of Radiology performed x-rays. The report indicated an
abnormal appearance of the humeral head likely due to pervious surgical intervention. No acute
bony abnormalities were suspect (R.at 326).

The visit produced a diagnosis of acute right

shoulder pain/strain and Plaintiff was instructed to follow up with Dr. Nechleba in five days and
was prescribed pain medication (R. at 325).
On March 16, 2011 PlaintitI saw Dr. Nechleba again for increased pain in her shoulder and
some decreased motion after being involved in a T-bone motor vehicle accident CR. at 378).
After examination, Dr. Nechleba reported that she has a little shoulder strain and directed PT to
continue working with that issue. He also ordered PT to turn their attention to neck and lower
back modalities for motion and pain control (R.at 378).
Plaintiff visited Bay Harbor Family Medicine on March 30, 2011 complaining of pain to the
right shoulder. Her pain radiated to her hand and she could not fully extend, flex, or abduct (R.at
351). Plaintiff had stiffness, swelling, weakness and numbness/tingling of the hand (R. at 351).
Bay Harbor Family Medicine referred Plaintiff to Orthopedics CR. at 353). At the time Plaintiff
was taking the following medications:

Combivent inhalation aerosol, Diclofenac Sodium,

Hydrochlorothiazide, and Proventil (R. at 371 ).
Plaintiff was seen on May 11, 2011 for another rotator cuff follow up. Dr. Nechleba reported
that her ROM was coming along nicely. She was about 1701170 lower thoracic and about 60
degrees external rotation. There was fairly good resistance with internal and external rotation
with her elbow at her side and also abduction and Jobes position (R. at 381, 577).

8

Doctor

Nechleba said she could use another month of PT but was able to handle returning to work on
regular duty basis CR. at 381).
Plaintiff attended PT on a regular basis. The record documents reports from Rehabilitation
Systems, Keystone Rehab - Erie West on the following dates: May 11, 2010, May 14,2010,
May 17,2010, May 18,2010, May 21, 2010, May 25, 2010, June 22, 2010, June 24, 2010, June
25,2010, June 28, 2010, June 30, 2010, July 2,2010, July 7, 2010, July 8, 2010, July 9,2010,
July 12, 2010, July 14, 2010, July 16, 2010, July 19, 2010, July 21, 2010, July 23, 2010, July 28,
2010, July 30,2010, August 2, 2010, August 3,2010, August 4,2010, August 6, 2010, August 9,
2010, August 10,2010, August 12,2010, August 16,2010, August 18,2010, August 20,2010,
August 23,2010, August 25, 2010, August 30, 2010, September 1,2010, September 3, 2010,
September 7, 2010, September 8, 2010, September 13,2010, September 16,2010, September 17,
2010, September 20, 2010, September 22, 2010, September 30, 20 I 0, October 8, 2010, October
12,2010, October 19,2010, March 22, 2011, March 23, 2011, March 25, 2011, March 29, 2011,
March 30, 2011, April 1, 2011, April 5, 2011, April 7, 2011, April 8, 2011, April 11,2011, April
13,2011, April 20, 2011, April 22, 2011, April 28, 2011, April 29, 2011, May 2, 2011, May 10,
2011, May 19,2011, May 20, 2011, May 23, 2011, May 25, 2011, June 2, 2011, and June 28,
2011 (R. at 382-548).
In addition, as part of the PT notes, there is a noteworthy letter from Keystone Rehabilitation
Systems dated September 20, 2011 which requested that Plaintiff maintain continued insurance
coverage. The letter states, "Bethany is a very good patient as she works very hard at trying to
get better. She wishes very much to get back to work and we are afraid that if she loses her
insurance she would not be able to attend her therapy and therefore not get any better. She
would not be able to work with her shoulder as it is now; she needs to continue with her

9

therapy."

CR.

at 487). PT was treating for rotator cuff rupture, headaches sprain lumbar region,

and sprain of neck after a motor vehicle accident. Due to the added injury of a motor vehicle
accident, different modalities were put into place for 3 visits a week for 3 weeks

CR.

at 437).

Plaintiff reported aggravating factors such as: turning head, lifting, pushing/pulling, walking 10­
20 minutes, sitting 20-30 minutes, and standing 20-30 minutes

CR. at 434).

The following treatments were employed: Exercise activities; aerobic conditioning; range of
motion, modalities, and massage.

The therapist reported that the Plaintiff required skilled

rehabilitative therapy in conjunction with home exercise program to achieve the goals but overall
rehabilitation potential was good

CR.

at 386). Goals were to decrease pain, improve disabilities

of arm, shoulder and hand, increase range of motion, musculoskeletal improvements, and correct
posture

CR.

at 386-387). The plan was PT three times a week for eight weeks

CR.

at 388). The

therapist reported that Plaintiff generally would undergo treatment with mild or minimal
complaints of pain and difficulty

CR.

at 397). On April 7,2011 Plaintiff reported increased right

shoulder pain (Rat 413). On April 8, 2011 right shoulder continues to be sore and there is
increased edema and soreness with stretching
on April 11 and 13,2011

CR. at 420, 424).

back and there was a palpable spasm

CR.

CR.

at 416). Plaintiff s condition was unchanged

May 2, 2011 Plaintiff had increased pain to right low
at 453). There were also reports which indicated that

Plaintiffs overall condition was a little better (R at 398) and her overall condition continued to
improve (Rat 410).
On May 19, 2011 PT reported that Patient stated right shoulder is getting better but still
weak and limited at times. Plaintiff had been dealing with injuries from mUltiple motor vehicle
accidents

CR. at 461).

10

A July 20,2011 report from St. Vincent Behavioral Health reported Plaintiff was doing well
on her current medications (R. at 549).
On November 8, 2011 Plaintiff was evaluated by Safe Harbor Behavioral Health as a transfer
from St. Vincent Behavioral Health due to St. Vincent closing (R. at 554).

She was well

groomed with good hygiene (R. at 560). Plaintiff "claims she is doing well on[ sic] her current
medication and is hoping they will not be changed." (R. at 554). She stated she was being
treated for depression, anxiety, and ADHD (R. at 554).
In a January 6, 2012 report from Safe Harbor Behavioral Health, Plaintiff stated that her
medications helped her regulate her mood and keep her focused to work (R. at 560). She also
stated that, "[D]epression was not bad right now and she does better when staying busy with
work and activities." (R. at 560).

Plaintiff stated she gets anxious, worried, nauseated, and

irritated. She also reported she does not like to socialize (R. at 560) and cannot pay attention for
extended periods of time (R. at 560). She was given a GAF score of 56 (R. at 561). Plaintiff's
medications were tweaked to improve mood and address her ADHD (R. at 561).
December 23, 2011 Plaintiff saw Dr. Nechleba with some increasing pain in her shoulder.
She had a fall at work and says she landed backwards (R.at 576). At the examination she
has good ROM about 160/160. Internal rotation is lower thoracic and external
rotation about 60 degrees. She gives me fairly good resistance with Jobes and
O'Brien's test. She has good external and internal rotation with her elbows at her
side. She is kind of globally tender in that upper extremity just when I touch
around there, there is a little hypersensitivity with pain issues.
She is
neurovascularly intact distally. She has been complaining of swelling but there is
no evidence of swelling today. (R. at 576)
The Doctor reported he thought she just strained or aggravated her rotator cuff (R. at 576).
At her February 1, 2012 appointment with Stairways Behavioral Health, Plaintiff was
observed to be friendly, cooperative, mood frustrated at times but generally less anxious and less

11

depressed. Her affect was calm and broad and she had good eye contact. She had a somewhat
disheveled appearance. (R. at 563).
Plaintiff was seen on February 17, 2012 for follow up for her right shoulder rotator cuff
repair after a fall. The Doctor reported that she seemed to have relief from the subacromial
injection. She had some decreased forward flexion and abduction and was tender around her AC
joint (R. at 578).
February 22, 2012 Stairways Behavioral Health performed an assessment: Plaintiff is well
groomed with good hygiene. Plaintiffs depression was controlled with Celexa. Her appetite
was normal and her sleep was typically good. At the time Plaintiff worked second shift, typically
went to bed around 11 :30pm and woke up at 6:00am to get children ready for school (R. at 566).
All her medications were reported as working to help symptoms (R. at 566).
On April 3, 2012 Hamot Medical Center Department of Radiology performed an MRI with
contrast for right shoulder pain. The findings were:

Contrast material was seen within the

glenohumeral joint and extensively throughout the subacromial-subdeltoid bursa. These findings
were highly suspicious for recurrent full thickness rotator cuff tear. Post-surgical changes of the
proximal right humerous with metal artifacts.

There was a sharply circumscribed ovoid

presumed to be cystic lesion within the proximal right humeral shaft which was not present
previously (R. at 573).
On April 13, 2012 Dr. Nechleba provided restrictions for Plaintiff when returning back to
work (R. at 572). His restrictions were no lifting with right arm, no overhead work, and no
climbing ladders CR. at 572).

12

IV, Summary of Testimony
In her 2010 "Disability Report Field Office Form - SSA3367," Plaintiff, a 39 year old
female, reported completing her GED in 1995 (R. at 170).

She worked as a personal care

attendant and as a cashier at the Country Fair Store (R. at 171). She listed the following as her
medications at the time of the report:

Adderall, Ambien, Kolonipin, Combivent, Flexerall,

hydrochlorothiazide, Percocet, tramadol, Vento lin, and Vicodin (R. at 172). Plaintiff reported
her daily activities as follows: "Sleep very little, cleans house most of the day. Excessively
cleans. Last several months has lot of pain in right shoulder so limits cleaning. Most sit byself
[sic] in kitchen or in living room looking out window.

Pain medication make[s] her very

drowsy. But only sleep a little at a time. Very anxious." (R. at 190).
Plaintiff reported caring for her children by cleaning, cooking, and washing clothes with
assistance from their father (R. at 191). However, Plaintiff also stated she can no longer clean,
cook, wash clothes, drive, or work (R. at 191). She said she needed assistance in almost all
aspects of personal care with exception of feeding herself (R. at 191). Plaintiff was able to go
out alone but would become very anxious (R. at 192).

She could not drive due to pain

medication (R. at 192).
Plaintiff reported that her illnesses and injuries affected lifting, reaching, walking, sitting,
memory, completing tasks, concentration, understanding, following instructions, using her right
hand (she is left handed), and getting along with others (R. at 195).
On December 8, 2010 a Physical Residual Functional Capacity ("RFC") Assessment was
performed on Plaintiff by Lindsay B. Ross (R. at

78~84).

Her primary diagnosis was rotator cuff

tear. Plaintiff was found to have the following limitations: She can occasionally lift and/or carry
20 pounds; she can frequently lift or carry 10 pounds; she can stand and/or walk about 6 hours in

13

an

8~hour

workday; she is limited in her upper extremities to push or pull; she is limited in
79~82).

reaching all directions including overhead CR. at

Based on the medial evidence of

record, Dr. Ross found Plaintiffs statements to be partially credible CR. at 8).
In her Disability Determination and Transmittal of February 14, 2011, Dr. Ross found
that Plaintiffs restrictions do not allow her to perform past relevant work (R. at 10). However,
the RFC has been assessed at a light exertional level work and the mental capacity is limited to
unskilled work (R. at 10). Dr. Ross finds jobs allowing for these restrictions exist in significant
numbers in the national economy.
On February 14,2011 a Mental RFC was completed by Edward Jonas, Ph.D. (R. at

235~

251). Dr. Jonas did not find Plaintiff to be markedly limited in any category. He found her to be
moderately limited in her ability to understand and remember detailed instructions, her ability to
carry out detailed instructions, her ability to work in coordination with or proximity to others
without being distracted by them, her ability to make simple work related decisions, her ability to
complete a work day or work week without an unreasonable number of rest periods (would not
have a consistent pace), her ability to interact with the general public, her ability to accept
instruction or criticism from supervisors, her ability to get along with coworkers, and her ability
to adapt to changes in work setting CR. at

235~236).

Dr. Jones found the Plaintiff to be partially

credible. He gave Dr. Neal's medical evaluation appropriate weight and determined Dr. Neal's
report to be partially consistent with the RFC.

"Despite the restrictions resulting from the

impairment, the claimant would be able to meet the basic mental demands of competitive work
on a sustained basis." CR. at 237).
With regard to Functional Limitation, Dr. Jonas found Plaintiff to be mildly restricted in
activities of daily living, she has moderate difficulty in maintaining social functioning, she has

14

moderate difficulty in maintaining concentration, persistence or pace and there is no evidence of
decompensation (R. at 249).

V. 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. § 405(g)(2012).

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." Bums 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. 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 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)(l); 423(d)(1)(A); 20 C.F.R. §404.1505
(2012). A person is unable to engage in substantial activity when:
15

[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).
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.

§ 404.1520(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
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

him

from

performing

his

past

relevant

work.

See
-

id.

-

at

§ 404.1520(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 his 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 Claimant asserts that she has been disabled since April 13, 2010, due to
her mental health issues and a recurrent rotator cuff tear and argues that the ALJ's decision is not
supported by substantial evidence of record [ECF No.8 at 18].

16

In support of her motion for

summary judgment, Plaintiff argues that the ALJ did not give proper deference to Plaintiffs
physical and mental health symptoms [ECF No.9 at 1]. More specifically, Plaintiff argues that
her mental impairments satisfy the disability criteria of "paragraph B" [ECF No.8 at 14-15].
Plaintiff, in particular, notes that the ALJ's determination that Plaintiff is only mildly
limited in activities of daily living because she is able to clean her house forty hours a week is
erroneous and that the obsessive cleaning is a disabling factor rather than evidence of ability to
work [ECF No.8 at 15]. Plaintiff states she is preoccupied with cleaning, which interferes with
her ability to conduct all other activities [ECF No.8 at 15]. "The ability to engage in substantial
gainful employment, ...means the ability to do certain of the the physical and mental acts
required in the job; the claimant must be able to sustain the activity through continuous
attendance in a regular work week." Dobrowolsky v. Califano, 606 F.2d 403, 408 (3d. Cir.
1979); See Sharp v. Bowen, 705 F.Supp. 1111, 1121 (W.D. Pa. 1989). Plaintiff believes that the
ALJ improperly emphasized Plaintiffs ability to perform functions at home and improperly
determined that Plaintiff s performance at home could transfer to a work place environment.
Activities such as school, hobbies, housework, social activities or use of public transportation
cannot be used to show ability to engage in substantial gainful activity. See Frankenfield v.
Bowen, 861 F.2d405 (3dCir. 1988).
Finally, Plaintiff asserts that the ALJ did not provide any rational basis for finding
Plaintiff was not credible [ECF No.8 at 16]. Plaintiff cites to the record which is replete with
evidence of appointments with Dr. Nechleba and PT, as well an MRI report which states,
"recurrent full thickness tear of the rotator cufT with development of a cyst within the proximal
right humeral shaft." [ECF No.8 at 16]. All of the medical evidence is supportive of Plaintiffs
claims of medical disability.

17

The ALJ asserts that there is substantial evidence on the record to find that the Plaintiff is
not disabled and determined that the Plaintiff maintains a RFC to perform a reduced range of
simple, low-stress, light work, with numerous limitations, despite her physical and mental
impairments [ECF No. 18 at 9].
The Commissioner relied on the ALJ's determination and uses the sequential evaluation
process and determines at step (5) that the Plaintiff has not met her burden of proof that she
cannot work in some capacity in the national economy.
After careful consideration of the entire record, [I] find that the claimant has the
residual functional capacity to perform light work as defined in 20 C.F.R.
404.1567(b) except with no climbing ofladders, ropes, and scaffolds; the claimant
may not use her non-dominant right arm; the claimant must avoid even moderate
exposure to unprotected heights, dangerous moving machinery, or other
workplace hazards; the claimant must avoid even moderate exposure to extremes
of temperature, wetness, or humidity; the claimant is limited to understanding,
remembering, and carrying out simple instructions and performing simple, routine
tasks; the claimant is limited to low stress work, which is here defined as work
that involves no production rate pace, but rather, only goal oriented work with
only occasionally and routine changes in the work setting; the claimant should
have no more than occasional work-related contact with supervisors and no work­
related contact with co-workers or members of the general public such that her
work would be essentially isolated. CR. at 16).
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. At this step the 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
18

the sole responsibility to weight a claimant's complaints about her symptoms against the record
as a whole. See 20 C.F.R. §§ 404.1529(a), 416.929(a).

The Third Circuit precedent provides that the ALl must analyze all relevant,
probative evidence and provide adequate explanation for disregarding evidence.

See

Fargnoli, 247 F.3d at 41; 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, 705
(3d Cir. 1981). "[T]he ALl may choose whom to credit but 'cannot reject evidence for
no reason or for the wrong reason.'" Plummer, 186 F. 3d at 429.
Based on his review of all the evidence, and relying upon the testimony of the
VE, the ALl found Plaintiff not disabled under the Act because she retained the
ability to perform work that existed in the national economy, including work as a
mail clerk (70,000 jobs nationally), security guard (84,000 jobs nationally) and
routing clerk (50,000 jobs nationally). (R. at 21).
After review of the record in its entirety and careful review of the ALl decision, we agree
with the Commissioner that the ALl's decision was supported by substantial evidence. To reach
a satisfactory level of "substantial evidence" the ALl must have more than a scintilla but may
have less than a preponderance of evidence supporting his conclusion. "Substantial evidence has
been defined as 'more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate.'" Fargnoli 247 F.3d at 38. We believe the ALl has met this
burden.
With regard to Plaintiffs credibility, an ALl's findings on credibility must be accorded
great weight and deference. See Irelan v. Barnhart, 243 F.Supp. 2d 268, 284 (E.D. Pa. 2003);
Stehley v. Astrue, 2012 WL 2572052, at *5 (W.D. Pa. luly 2, 2012); Lee v. Astrue, 2012 WL
1004297, at *3 (W.D. Pa. Mar. 23, 2012). Here Plaintiffs complaints of disability simply did
not ret1ect what was consistently stated in the record by the medical professionals and by the
19

Plaintiff herself. Although Plaintiff's symptoms were consistent with her diagnoses, they were
often controlled with medication or had potential for treatment and a good prognosis.
Furthermore, there were jobs in the economy that could accommodate the symptoms that
Plaintitf experienced both physically and mentally.

The ALl determined the Claimant's

testimony was not credible because her claim of disability is at odds with her statements on the
record that she wants to return to work on a regular basis and are in contrast with her reported
part-time employment and compulsive cleaning of her house (R. at 18).
With regard to Plaintiff's mental capacity, Plaintitfasserts in her brief that she has met
"paragraph B" criteria [ECF No.8 at 15]. To satisfy this criterion the mental impairments must
result in at least two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration (R. at
15). "[T]he AL] found that PlaintitT's impairments caused only mild restrictions in activities;
moderate difficulties in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence, or pace; and no episodes of decompensation." (R. at 15-16).
Plaintiff's medical record does not provide us with even one "marked" restriction in Plaintiff's
activities. No medical authority made a "marked" determination and furthermore, there is little
evidence of record of an obsessive-compulsive disorder. It appears that Plaintiff's attorney
simply makes an unfounded assertion that Plaintiff's OCD with regard to cleaning her house is
debilitating. Plaintiff's attorney simply made her own assessment that Plaintiff has a "marked"
restriction in this area.
The record simply provides diagnoses of Plaintiff's mental impairments of ADHD,
PTSD, generalized anxiety disorders and mood disorders but no medical professional diagnosed

20

Plaintiff with obsessive compulsive disorder, let alone stated OCD causes Plaintiff to be
disabled. The record further provides evidence, in more than one instance, that Plaintiffs mental
disorders are effectively treated with medications. While Plaintiff continues to be treated for her
mental dysfunction, and her medications are tweaked occasionally, the overall impression given
by Plaintiff through the medical reports on the record are that her mental capacity issues are
stabilized through her medications. Plaintiff s G AF scores were stable or improved over the
relevant time period. The ALJ need only include in the RFC determination a claimant's credibly
established limitations. See Rutherford v. Barnhart, 399 F.3d 546,554 (3d Cir. 2005).
In addition, Plaintiff notes to the Court that the record indicates that Plaintiff has a
"moderate" restriction in social functioning, but says Plaintiffs difficulty dealing with males was
under-evaluated and that the restrictions really are extreme in this area. Again, Plaintiffs own
unsubstantiated uneducated determination of a greater restriction is not a consideration for this
Court. Plaintiffs attorney's bald-faced statements that her activities are "markedly" restricted is
hardly evidence of a mental impairment under "paragraph B".
With regard to Plaintiffs recurring rotator cuff injury, there is certainly evidence
of record to support that Plaintiff suffers this injury and has restrictions on her physical
ability to use her right arm. However, there is no indication through any of the various
reports by Plaintiffs treating Orthopedic Surgeon that she will not recover from this
injury. Furthermore, Dr. Nechleba never indicates that Plaintiff is or will be unable to
work. In fact, in his last report he releases Plaintiff for work, with restrictions, "no lifting
with right arm, no overhead work, no climbing ladders." (R. at 572). These restrictions
are accounted for in ALl's and the Commissioner's determinations.

21

Plaintiffs medical history reflects ongoing treatment for mental illness and a
chronic medical issue with the right rotator cuff. However, absent from the record is any
medical authority stating that Plaintiff is unable to work. Plaintiff, despite her mental and
physical difficulties, is still able to function in the daily activities of life. 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). Therefore, based on a view of the medical records and
testimony as a whole, we find the ALl's determination and the Commissioner's
subsequent decision to be reasonably sound.

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
Defendant's Motion for Summary Judgment is granted. The Plaintiffs Motion for Summary
Judgment is denied. An appropriate order will be entered.

Date:

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Mauflce B. Cohill, Jr.
Senior United States District Court Judge

counsel of record

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