GODREY v. ASTRUE

Filing 15

MEMORANDUM OPINION and ORDER denying 8 Motion for Summary Judgment and granting 12 Motion for Summary Judgment; The administrative decision of the Comissioner of Social Security is affirmed. Signed by Chief Judge Gary L. Lancaster on 5/12/11. (map)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WAYNE D. GODFREY,
Plaintiff,

v.
MICHAEL J. ASTRUE ,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civil Action No. 10-565
Chief Judge Gary L. Lancaster

MEMORANDUM OPINION AND ORDER OF COURT

Gary L. Lancaster
f Judge

I.

May

/2-,
2011

Introduction

Plaintiff Wayne D. Godfrey ("Godfrey") brings this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3), seeking judicial
review of the final decision of the Commissioner of Social
Security ("Commissioner") denying his applications for
disability insurance benefits ("DIB") and supplemental security
income ("SSI") benefits under Titles II and XVI of the Social
Security Act ("Act")

[42 U.S.C. §§ 401-433, 1381 1383f].

The

matter is presently before the Court on cross-motions for
summary judgment filed by the parties pursuant to Federal Rule
Civil Procedure 56.

(ECF Nos. 8 & 12).

For the reasons that

low, Godfrey's motion for summary judgment will be denied,
the Commissioner's motion for summary judgment will be granted,

1

and the administrative decision of the Commissioner will be
affirmed.

II.

Procedural History
Godfrey protectively applied for DIB and SSI benefits on

February 8, 2007,

leging disability as of October 28, 2003. 1

(R. at 9, 127, 135, 279).

The applications were

administratively denied on April 25, 2007.

(R. at 73, 79, 85).

Godfrey responded on June 15, 2007, by filing a timely request
for an administrative hearing.

(R. at 90).

On April 4, 2008, a

hearing was held in Johnstown, Pennsylvania, before
Administrative Law Judge Robert C. Deitch (the "ALJ").
25).

(R.

at

Godfrey, who was represented by counsel, appeared and

testified at the hearing.

(R. at 30-51).

Dr. Joseph J.

Bentivegna, an impartial vocational expert, also testified at
the hearing.

(R. at 51-58).

In a decision dated April 23,

2008, the ALJ determined that Godfrey was not "disabled" within
the meaning of the Act.

(R. at 9 18).

The Appeals Council

denied Godfrey's request for review on March 26, 2010, thereby
making the ALJ's decision the final decision of the Commissioner
in this case.

(R. at 1).

Godfrey commenced this action on May

5, 2010, seeking judicial review of the Commissioner's decision.
(ECF Nos. 1 & 3).

Godfrey and the Commissioner filed motions

I Godfrey filed a previous application for benefits under Title II on February
28, 2006.
(R. at 116). That application was administrative
denied on
October 11, 2006.
(R. at 9, 68).

2

for summary judgment on August 27, 2010, and October 15, 2010,
(ECF Nos. 8 & 12).

respectively.

These motions are the subject

of this memorandum opinion.
III. Standard of Review
This Court's review is plenary with respect to all
questions of law.
Adm

Schaudeck v. Commissioner

stration, 181 F.3d 429, 431

Social Securi

(3d Cir. 1999).

With respect

to factual issues, judicial review is limited to determining
whether the Commissioner's decision is "supported by substantial
evidence.

II

42 U.S.C.

46 (3d Cir. 1994).

405(g)i

§

Adorno v.

la, 40 F.3d 43,

The Court may not undertake a de novo review

of the Commissioner's decision or re-weigh the evidence of
record.

Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190

1191 (3d Cir. 1986).

Congress has clearly expressed its

intention that "[t]he findings of the Commissioner of Social
Security as to any

1

if supported by substantial evidence,

shall be conclusive." 42 U.S.C.

§

405(g).

Substantial evidence

"does not mean a large or considerable amount of evidence

1

but

rather such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."
U.S. 552, 565

1

108 S.Ct. 2541, 101 L.

quotation marks omitted).

erce v. Underwood, 487
.2d 490

(1988) (internal

As long as the Commissioner'S

decision is supported by substantial evidence, it cannot be set
aside even if this Court "would have decided the factual inquiry
3

differently.
1999).

Hartranft v.

II

, 181 F.3d 358, 360 (3d Cir.

"Overall, the substantial evidence standard is a

deferential standard of review.
501 1 503

Jones v. Barnhart

1f

l

364 F.3d

(3d Cir. 2004).

In order to establish a disability under the Act l a
claimant must demonstrate a "medically determinable basis for an
impairment that prevents him [or her]
'substantial gainful activityl
period.

II

from engaging in any

a statutory twelve-month

Stunkard v. Secretary of Health & Human Services

F.2d 57 1 59 (3d Cir. 1988)
(3d Cir. 1987)

i

i

Kangas v. Bowen l

42 U.S.C. §§ 423 (d) (1) (A)

I

l

841

823 F.2d 775 1 777

1382c (a) (3) (A).

A

claimant is considered to be unable to engage in substantial
gainful activity "only if his [or her] physical or mental
impairment or impairments are

such severity that he [or she]

is not only unable to do his [or her] previous work but cannot

I

considering his [or her] agel education l and work experience I
engage in any other kind of substantial gainful work which
exists in the national economy.1I

42 U.S.C. §§ 423 (d) (2) (A) I

1382c (a) (3) (B) .
To support his or her ultimate findings

I

an administrative

law judge must do more than simply state factual conclusions.
He or she must make specific findings of fact.

Secretary of Health/ Educa
Cir. 1983).

on & Welfare l

Stewart v.

714 F.2d 287 1 290

The administrative law judge must consider all

4

(3d

medical evidence contained in the record and provide adequate
explanations

disregarding or rejecting evidence.

Behalf of Weir v. Heckler
Cotter v. Ha

St

t

734 F.2d 955

t

Weir on

961 (3d Cir. 1984);

642 F.2d 700, 705 (3d Cir. 1981).

The Social Security Administration ("SSA"), acting pursuant
to its legislatively-delegated rulemaking authoritYt has
promulgated a five step sequential evaluation process for the
purpose of determining whether a claimant is "disabled" within
the meaning of the Act.

The United States Supreme Court

recently summarized this process as follows:

If at any step a finding of disability or non­
disability can be made, the SSA will not review the
claim further.
At the first step, the agency will
find non-disability unless the claimant shows that he
is not working at a "substantial gainful activity."
[20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two,
the SSA will find non-disability unless the claimant
shows that he has a "severe impairment/" defined as
"any impairment or combination of impairments which
significantly limits [the claimantts] physical or
mental ability to do basic work activities."
§§
404.1520(c), 416.920(c). At step three, the agency
determines whether the impairment which enabled the
claimant to survive step two is on the list of
impairments presumed severe enough to render one
disabled; if so, the claimant qualif
§§
404.1520(d), 416.920(d).
If the claimant's impairment
is not on the list, the inquiry proceeds to step four,
at which the SSA assesses whether the claimant can do
his previous work; unless he shows that he cannot, he
is determined not to be disabled.
If the claimant
survives the fourth stage, the fifth, and final, step
requires the SSA to consider so-called "vocational
factors" (the claimant's aget education, and past work
experience), and to determine whether the claimant is
capable
performing other jobs existing in

5

significant numbers in the national economy.
§§
404.1520 (f)
404.1560 (c)
416.920 (f)
416.960 (c) .
I

I

I

Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157

L.Ed.2d 333 (2003) (footnotes omitted).
In an action in which review of an administrative
determination is sought, the agency's decision cannot be
affirmed on a ground other than that actually relied upon by the
agency in making its decision.
on v. Chenery Corp.,

Commi

In Securities & Exchange

332 U.S. 194, 67 S.Ct. 1575, 91

L.Ed. 1995 (1947), the Supreme Court explained:
When the case was first here, we emphasized a simple
but fundamental rule of administrative law. That rule
is to the effect that a reviewing court, in dealing
with a determination or judgment which an
administrative agency alone is authorized to make,
must judge the propriety of such action solely by the
grounds invoked by the agency.
If those grounds are
inadequate or improper, the court is powerless to
affirm the administrative action by substituting what
it considers to be a more adequate or proper basis.
To do so would propel the court into the domain which
Congress has set aside exclusively for the
administrative agency.

Chenery

"

Appeals

the Third Circuit has recognized the applicability

of this

332 U.S. at 196.

The United States Court of

in the Social Security disability context.

Fargnoli v. Massanari, 247 F.3d 34, 44, n. 7 (3d Cir. 2001).

Thus,

Court's review is limited to the four corners of the

ALJ's

sion.

Cefalu v. Barnhart, 387 F.Supp.2d 486, 491

(W.D.Pa. 2005).

6

IV.

The ALJ's Decision
At the hearing, Godfrey amended his alleged onset date to

September I, 2006.

(R. at 27-28).

The ALJ determined that

Godfrey had not engaged in substantial gainful act
subsequent to that date.

(R. at 11).

ty

Godfrey was found to be

suffering from a left knee impairment and degenerative disc
disease, which were deemed to be "severe" within the meaning of
20 C.F.R.
11 12).

§§

404.1520(a) (4) (ii) and 416.920(a) (4) (ii).

(R.

at

The ALJ concluded that these impairments did not meet

or medically equal an impairment listed

20 C.F.R. Part 404,

Subpart P, Appendix 1 (the "Listing of Impairments" or, with
respect to a single impairment, a "Listed Impairment" or
"Listing") .

(R.

at 12).

In accordance with 20 C.F.R.

§§

404.1545 and 416.945, the

ALJ assessed Godfrey's residual functional capacity as follows:
After careful consideration of the ent
record, the
undersigned finds the claimant retains the residual
functional capacity to perform the exertional demands
of sedentary work, with certain modifications. Under
sedentary work restrictions, he cannot lift more than
ten pounds, can customarily not stand or walk more
than two of eight hours a workday, can customarily not
sit more than six
eight hours a workday, and cannot
stoop more than infrequently (20 CFR 404.1567,
416.967, and Social Security Rulings 83-10, 96 8p).
Additionally, the claimant cannot perform pushing,
pulling, or pedal motions with his left lower
extremity. He can have no more than minimal exposure
to extreme temperatures and humidity.

7

(R.at13).

Godfrey had "past relevant work,,2 experience as a

truck driver/ warehouse dockworker and road tester.

(R. at 51)

Dr. Bentivegna classified these positions at the "heavy/1I 3

"medium ll4 and "light llS levels of exertion/ respectively.
51-52) .

(R. at

Since Godfrey was found to be limited to "sedentaryll6

work/ it was determined that he could not return to his past
relevant work.

(R.

at 16).

Godfrey was born on August 8/ 1960/ making him forty-six
years old on his amended onset date and forty-seven years old on
the date of the ALJ/s decision.
classified as a "younger person

(R. at 16/ 30-31).
ll

He was

under the Commissioner1s

2 "Past relevant work" is defined as "substantial gainful activity" performed

by a claimant within the previous fifteen years that lasted long enough for

him or her to learn how to do it.
20 C.F.R. §§ 404.1560(b) (1),

416.960(b) (1). The Commissioner has promulgated comprehensive regulations

governing the determination as to whether a claimant's work activity

constitutes ·substantial gainful activity." 20 C.F.R. §§ 404.1571-404.1576,

416.971-416.976.

3 "Heavy work involves lifting no more than 100 pounds at a time with frequent

lifting or carrying of objects weighing up to 50 pounds." 20 C.F.R. §§

404.1567 (d)
416.967 (d)
.
4\\Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§
404.1567 (c), 416'.967 (c) .
S"Light work involves I
no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.
Even though the
weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls.
To be considered
capable of performing a full or wide range of light work, [a claimant] must
have the ability to do substantially all of these activities." 20 C.F.R. §§
404.1567(b), 416.967(b).
6 "Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met." 20 C.F.R. §§
404.1567(a),416.967(a).
f

8

regulations.

20 C.F.R.

404.1563(c), 416.963(c).

§§

He had a

"limited education" and an ability to communicate in English.7
(R. at 17,237, 245)i 20 C.F.R.
416.964 (b) (3),

(5).

§§

404.1564(b) (3),

(5),

Given the applicable residual functional

capacity and vocational assessments, the ALJ concluded that
Godfrey could work as an assembler, a sticker, a lacer, or a
sack repairer.

(R. at 17).

Dr. Bentivegna's testimony

established that these jobs existed in the national economy for
purposes of 42 U.S.C.

§§

423 (d) (2) (A) and 1382c(a) (3) (B).8

(R.

at 54-55).

V.

Discussion
Godfrey's knee impairment dates back to September 4, 2003,

when he slipped on an open case of olive oil and twisted his
left knee while trying to unload a truck.
torn meniscus resulted from the injury.

(R. at 408, 416).

A

Although Godfrey had

undergone several operations to repair the damage to his knee,
was still suffering from

he testified at the hearing that
multiple meniscus tears.
his Ie

(R. at 40).

He further stated that

leg was 50% weaker than his right leg.

(R.

at 41) .

'Godfrey testified that he had completed the eleventh grade before becoming a
certified mechanic.
(R. at 31).
SAt the fifth step of the sequential evaluation process, "the Commissioner
bears the burden of proving that, considering the claimant's residual
functional capacity, age, education, and past work experience, [he or] she
can perform work that exists in significant numbers in the regional or
national economy./I Boone v. Barnhart, 353 F.3d 203, 205 (3d Cir. 2003).
This burden is commonly satisfied by means of vocational expert testimony.
Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).

9

The first issue raised by Godfrey concerns the ALJ's
determination at the third step of the sequential evaluation
process, which centers on the
9 at 3, 7-12).

sting of Impairments.

(ECF No.

The Listing of Impairments describes impairments

which render a claimant per se disabled without regard to his or
her age, education, or past work experience.

Bowen v. Yuckert,

482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) i Knepp
v. Apfel, 204 F.3d 78, 85

(3d Cir. 2000).

In order to qualify

as per se disabled, a claimant must demonstrate that his or her
impairment (or combination of impairments) either "matches" a
Listing or is "equivalent" to a Listing.

Sullivan v. Zebley,

493 U.S. 521, 530 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).

An impairment "matches" a Listing only if it satisfies all of
the relevant medical criteria.

Id. at 530.

An impairment is

"equivalent" to a Listed Impairment only if it is supported by
medical findings equal in severity to all of the criteria
applicable to the most similar Listing.

Id. at 531.

The

claimant bears the burden of presenting evidence to support his
or her allegation of per se disability.

Wi'lliams v. Sullivan,

970 F.2d 1178, 1186 (3d Cir. 1992).
Godfrey argues that the ALJ erred in determining that his
knee impairment did not meet or medically equal Listing 1.02A.
(ECF No.9 at 3, 7-12).

The language of Listing 1.02A reads as

follows:

10

1.02 Major dysfunction of a joint (s) (due to any
cause): Charact
zed by gross anatomical deformity
(e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion or other
abnormal motion
the affected joint(s), and findings
on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the
affected joint(s}.
With:
A.
Involvement
one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in
1. 00B2b . . .

20 C.F.R. Part 404, Subpart P, Appendix 1,
(emphasis in original).

sting 1.02A

The "inability to ambulate effectively"

referred to in Listing 1.02A is discussed

Listing 1.00B2b,

which reads as follows:
b. What We Mean by Inability to Ambulate Effectively
(1) Definition.
Inability to ambulate effectively
means an extreme limitation of the ability to walki
i.e., an impairment(s) that interferes very seriously
with the individual's ability to independently
initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00J)
to permit independent ambulation without the use of a
hand-held assistive device(s} that limits the
functioning of both upper extremities.
(Listing 1.0SC
is an exception to this general definition because the
individual has the use of only one upper extremity due
to amputation of a hand.)
(2) To ambulate
tively, individuals must be
capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel
without companion assistance to and from a place of
employment or school. Therefore, examples of
ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker,
two crutches or two canes, the inability to walk a

11

block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public
transportation, the inability to carry out routine
ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable
pace with the use of a single hand rail.
The ability
to walk independently about one's home without the use
of assistive devices does not,
and of itself,
constitute
ive ambulation.

20 C.F.R. Part 404, Subpart P, Appendix I, Listing 1.00B2b
(emphasis in original) .
In support of his assertion of

se disability, Godfrey

relies on a "physical capacities evaluation" form completed by
Dr. Selim EI-Attrache, a treating orthopedic surgeon, on April
3,

2008.

(ECF No. 9 at 12).

On the form, Dr. EI-Attrache

reported that Godfrey could sit for up to seven hours, stand for
up to two hours, drive for up to two hours, and walk for up to
one hour during the course of an eight hour workday.
738).

(R.

at

Godfrey contends that his alleged inability to walk for

more than one hour per workday constitutes an "inability to
ambulate effect
No. 9 at 12).

ly" within the meaning of Listing 1.02A.

(ECF

This contention, however, is wholly lacking in

merit.
In order to show that he cannot "ambulate ef

tively" for

purposes of Listing 1.02A, Godfrey must demonstrate that his
injury precludes him from engaging in "independent ambulation"
without using an assistive device (or a pair of assistive

12

devices)

"that limits the functioning of both upper

extremities.

II

20 C.F.R. Part 404, Subpart P, Appendix I,

Listing 1.00B2b(1)

(emphasis added).

Godfrey testified that he

needed to use a cane in order to stand or walk.

at 42).

(R.

The ALJ noted both at the hearing and in his opinion that
Godfrey normally held the cane in his right hand even though the
meniscus tear was in his I

knee.

(R. at 14, 41).

The record

contains no documentary or testimonial evidence suggesting that
both of Godfrey's upper extremities are occupied by an

"assistive device" when he walks.

9

Moreover, Godfrey testified

that he could walk anywhere from two to four blocks before his
pain would increase or his knee would start to swell.
42-43).

(R.

at

The record is devoid of evidence indicating that

Godfrey cannot "walk a block at a reasonable pace on rough or
uneven surfaces."
Listing 1.00B2b(2)

20 C.F.R. Part 404, Subpart P, Appendix I,
The "inability to ambulate effectivelyll

referenced in the applicable Listings constitutes "an extreme
limitation of the ability to walk."

20 C.F.R. Part 404, Subpart

P, Appendix I, Listing 1.00B2b(1) (emphasis added).

An

impairment preventing an individual from walking for more than

language contained in subsection J4 simply articulates the manner in
which a physician should determine whether an individual needs a "hand-held
assistive device" in order to ambulate.
20 C.F.R. Part 404, Subpart P,
Appendix I, Listing 1.00J4.
It does not describe a freestanding impairment
that could independently enable an individual to qualify as per se disabled.
Godfrey's reliance on subsection J4 is misplaced.
(ECF NO.9 at 12).
9 The

13

one hour during the course of an eight-hour workday simply

Is

short of that standard.
At the hearing, the ALJ asked Dr. Bentivegna a series of
hypothetical questions concerning an individual's ability to
perform the duties of specific jobs with certain functional
limitations.

(R. at 53-58).

The ALJ's first hypothetical

question corresponded very closely with his ultimate residual
functional capacity finding. 1o

(R.

at 53-54)

In response to

that question, Dr. Bentivegna testified that an individual with
the limitations mentioned by the ALJ could work as an assembler,
a sticker, a lacer, or a sack repairer.

(R.

at 54).

Dr.

Bentivegna responded in the negative when asked whether an
individual needed to stand or walk in order to perform the
duties of the jobs that he had identified.

(R.

at 56).

Nonetheless, he stated that an individual could perform the
duties of those jobs while standing, and that individuals
holding those positions were typically afforded a sit/stand
option.

(R. at 56).

The ALJ proceeded to ask Dr. Bentivegna

whether a right-handed individual could perform the duties
referenced in his testimony while holding a cane in his or her

IOThe hypothetical question described an individual who could not be exposed
to heights or dangerous machinery.
(R. at 54). These limitations were not
included in the ALJ's residual functional capacity finding.
(R. at 13).
Nevertheless, all of the limitations contained in the residual functional
capacity finding were incorporated within the hypothetical question, thereby
rendering Dr. Bentivegna's testimony reliable.
Ramirez v. Barnhart, 372 F.3d
546, 552-555 (3d Cir. 2004).

l4

right hand in order to remain in a standing position.
56-57).

(R. at

Dr. Bentivegna responded by stating that an individual

could not perform such duties without the use of his or her
dominant hand.

(R. at 57).

Godfrey argues that Dr. Bentivegna's testimony requires the
reversal of the ALJ's decision in this case.
18-19).

(ECF No. 9 at 3 4,

He contends that the ALJ erred in determining that he

could perform the duties identified by Dr. Bentivegna, given Dr.
Bentivegna's testimony that such duties could not be performed
from a standing position by an individual who needed to hold a
cane in his or her dominant hand.

(ECF No. 9 at 18).

The

problem with Godfrey's argument is that it fails to distinguish
between the ALJ's hypothetical questions and his ultimate
residual functional capacity finding.

The ALJ never determined

that Godfrey needed to hold a cane in order to stand.
13).

(R. at

The ALJ specifically noted in his opinion that Dr.

Bentivegna had been asked some hypothetical questions containing
limitations that were not credibly established in the record.
(R. at 17 18).

A residual functional capacity assessment need

not account for every limitation alleged by a claimant.
Ruth

v. Barnhart, 399 F.3d 546, 554

(3d Cir.

2005) (explaining that only "credibly established" limitations
must be

lected in an administrative law judge's residual

functional capacity assessment and corresponding hypothetical
15

question to a vocational expert).

Moreover, Dr. Bentivegna

testified that the positions which he had identified did not
require an individual to stand or walk.

(R. at 56).

The ALJ

relied on this testimony in determining that Godfrey was capable
of holding those positions.

(R. at 17).

Godfrey's argument

concerning Dr. Bentivegna's testimony provides no basis for
setting aside the ALJ's findings.
At the conclusion of the hearing, Godfrey's counsel asked
the ALJ to consider Soc

Security Rulings 03-2p, 96 9p and 83­

lOll in making his decision. 12
specif
18).

(R. at 58).

The ALJ did not

ly refer to these Rulings in his opinion.

(R. at 9­

Godfrey now argues that the ALJ's failure to discuss these

Rulings renders his residual functional capacity finding
defective.

(ECF No. 9 at 4, 15-18).

It is beyond dispute that the ALJ was required to consider
(and discuss) all pertinent evidence contained in the record
that was of significant probative value.

Johnson v.

Commissioner of Social Security, 529 F.3d 198, 203-205 (3d Cir.
2008).

Nonetheless, he was not required to specifically mention

the Social Security Rulings referenced by Godfrey, provided that

llGodfrey's counsel apparently meant to say \\83-12" when he said \\83-10."
(R.

at 58).
In his brief, Godfrey relies on Social Security Ruling 83-12 rather

than Social Security Ruling 83-10.
(ECF No.9 at 4, 17).

12Social Security Rulings do not have the force of law.
Newell v.

Commissioner of Social Security, 347 F.3d 541, 546, n. 4 (3d Cir. 2003).

Nevertheless, they prospectively bind all components of the SSA at the time

of publication.
Id.

16

the principles embodied in those Rulings were correctly applied.
A court that correctly applies a legal principle is not
ordinarily subject to reversal simply for
the origin of that principle.
School, 533 U.S. 98

1

109

1

n. 3

ling to identify

Good News Club v. Milford Central
1

121 S.Ct. 2093, 150 L.Ed.2d 151

(2001) ("We do not necessarily expect a court of appeals to
catalogue every opinion that reverses one of its precedents.") .
Thus, in order to impugn the ALJ's residual functional capacity
assessment under these circumstances

l

Godfrey must demonstrate

that the Rulings dictated a different result than that reached
by the ALJ in this case.
On February 71 2007, Dr. Mamdough El-Attrache completed an
"employability assessment form" for the Pennsylvania Department
of Public Welfare ("DPWII) indicating that Godfrey was
"temporarily disabled.

1I

(R. at 735-736).

Dr. Attrache reported

that Godfreyls "disability" was expected to last for at least
twelve months. 13

(R. at 736).

On the form l Dr. Attrache listed

"chronic pain syndrome" as a secondary diagnosis.

(R. at 736).

Social Security Ruling 03-2p governs the Commissionerls
treatment of a claimant suffering from a "chronic pain syndromel
resulting from "trauma to a single extremity."
59971, 59972

(2003).

68 Fed. Reg.

The Ruling provides that a finding of

13 The expected duration of Godfrey's "disability" reported by Dr. Attrache was
significant because of the Act's twelve-month durational requirement.
Barnhart v. Walton, 535 U.S. 212, 214 222, 122 S.Ct. 1265, 152 L.Ed.2d 330
(2002) .

17

ftdisabled" is not precluded where a "younger person" is
afflicted with this impairment.

Id. at 59975.

In this case,

however, the ALJ never determined that a finding of "disabled"
was precluded by the nature of Godfrey's impairment.

Instead,

he concluded that Godfrey was not "disabled" based on the
criteria applicable under the Act and the Commissioner's
regulations.

That is exactly the type of evaluation required

under Social Security Ruling 03-2p.

Id. at 59975 ("The

conclusion about whether such individuals are disabled will
depend primarily on the nature and extent of their functional
limitations or restrictions.") .
Social
argument.

ty Ruling 96-9p does not help Godfrey's
applicable language of that Ruling reads as

follows:
Medically required hand-held assistive device: To
find that a hand-held assistive device is medically
required, there must be medical documentation
establishing the need for a hand-held assistive device
to aid
walking or standing, and describing the
circumstances for which it is needed (i.e., whether
all the time, periodically, or only in certain
situations; distance and terrain; and any other
relevant information). The adjudicator must always
consider the particular facts of a case.
For example,
if a medically required hand-held assistive device is
needed only for prolonged ambulation, walking on
uneven terrain, or ascending or descending slopes, the
unskilled sedentary occupational base will not
ordinarily be significantly eroded.
most unskilled sedentary work requires only
occasional Ii ing and carrying of light objects such
as
and files and a maximum lifting capacity
for only 10 pounds, an individual who uses a medically

18

required hand-held assistive device in one hand may
still have the ability to perform the minimal lifting
and carrying requirements of many sedentary unskilled
occupations with the other hand.
For example, an
individual who must use a hand-held assistive device
to aid in walking or standing because of an impairment
that
fects one lower extremity (e.g., an unstable
knee), or to reduce pain when walking, who is limited
to sedentary work because of the impairment affecting
the lower extremity, and who has no other functional
limitations or restrictions may still have the ability
to make an adjustment to sedentary work that exists in
significant numbers.
On the other hand, the
occupational base for an individual who must use such
a device for balance because of significant
involvement of both lower extremities (e.g., because
of a neurological impairment) may be significantly
eroded.

61 Fed. Reg. 34478, 34482 (1996) (emphasis in original; footnote
omitted).

On August I, 2007, Dr. Mamdouh

a cane for Godfrey.

(R. at 737).

-Attrache prescribed

The prescription form,

however, provided no information "describing the circumstances
for which it [was] needed."
Dr.

61 Fed. Reg. 34478, 34482 (1996).

im EI-Attrache reported on January 22, 2008, that Godfrey

was using a cane for ambulation.

(R. at 743).

Godfrey points

to nothing in the documentary record which suggests that he
needs to use a cane in order to stand.

His testimony at the

hearing is the only evidence in the record indicating that he
cannot stand without using a cane.

(R. at 42).

Hence, Godfrey

cannot satisfy the portion of Social Security Ruling 96-9p
requiring "medical documentation establishing the need for a
hand held assistive device to aid in walking or standing, and
19

describing the

rcumstances

which it is needed . .

61

"

Fed. Reg. 34478, 34482 (1996).
As Social Security Ruling 96 9p explicitly recognizes,

"an

individual who must use a hand-held assistive device to aid in
walking or standing because of an impairment that affects one
lower extremity . .

. may still have the ability to make an

adjustment to sedentary work that exists in significant
numbers."

Id.

The record contains no evidence indicating that

Godfrey "must use such a device for balance because of
significant involvement of both lower extremities .

"

Id.

Furthermore, Dr. Bentivegna clearly stated that the positions
identified in his testimony did not require an individual to
stand or walk.
Godfrey bel

(R. at 56).

It is difficult to fathom how

that the result in this case would have been

different if the ALJ had expressly applied Soc

Security

Ruling 96-9p.
Godfrey relies on Social Security Ruling 83 12 for the
proposition that most sedentary positions require an individual
(ECF No.9 at 17).

to use both of his or her hands.

It is true

that an individual's ability to engage in sedentary work
activities can be compromi
her use of an upper extremity.
611, 615-616 (6 th Cir. 2003).

by a limitat

restricting his or

Wright v. Massanari, 321 F.3d

Nevertheless, the record contains

no evidence suggesting that Godfrey suffers from an arm

20

impairment.

Dr. Bentivegna testified that the relevant job

duties could not be performed (from a standing position) by an
individual whose dominant hand was occupied by a cane, since he
or she would need to use that hand in order to complete his or
her work-related tasks.

(R. at 56 57).

As noted earlier,

however, he also testified that those duties could be performed
from a sitting position.

(R. at 56).

Moreover, the ALJ never

determined that Godfrey needed to use a cane in order to stand.
(R. at 13).

Consequently, the portion of Social Security Ruling

83-12 relied upon by Godfrey is inapplicable to this case.

(ECF

No. 9 at 17).
In support

his request for review, Godfrey submitted

documentary evidence to the Appeals Council that had never been
presented to the ALJ.

(R. at 4, 773-814).

Except for

results of a magnetic resonance imaging ("MRI") scan conducted
on March 30, 2007,
decision.

I

of this evidence postdated the ALJ's

(R. at 773-814).

Godfrey argues that, in light of

this additional evidence, the Appeals Council erred in denying
his request for review.

(ECF No.9 at 4, 14-15).

Section 405(g) of the Act clearly permits an unsuccessful
claimant to seek judicial review of "any final decision
Commissioner of Social Security made
[or she] was a party .

II

ter a hearing to which he

42 U.S.C.

§

405(g).

This

statutory provision provides a claimant with his or her
21

the

exclusive avenue for redress.
Court has construed

42 U.S.C.

§

405(h).

The Supreme

405(g) to mean that a federal court has

§

jurisdiction to review only a "final decision" made by the
Commissioner "after a hearing."

Califano v.

, 430 U.S.

99, 108-109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

Where the

Appeals Council denies a claimant's request for review, the
decision made by the administrative law judge becomes the final
decision of the Commissioner in his or her case.

Sims v. Apfel,

530 U.S. 103, 106-107, 120 S.Ct. 2080, 147 L.Ed.2d 80

(2000).

Appeals Council's decision denying the request for review
does not constitute a "final decision" within the meaning of
405(g).
1992).

Bacon v. Sullivan,

969 F.2d 1517, 1519 1521 (3d Cir.

No statutory provision provides this Court with

jurisdiction to review

Appeals Council's decision denying

Godfrey's request for review.
594

§

(3d Cir. 2001).

Matthews v.

, 239 F.3d 589,

Accordingly, the Court has no occasion to

consider the arguments

sed by Godfrey concerning the actions

(or inactions) of the Appeals Council.
The sixth sentence

§

(ECF No. 9 at 4, 14-15).

405(g) provides that a reviewing

court may order the taking (and consideration) of additional
evidence by the Commissioner "upon a showing that there is new
evidence which is material," and that the claimant had "good
cause" for failing to present such evidence to the Commissioner
during the course of the prior administrative proceedings.

22

42

U.S.C.

§

405(g).

Godfrey contends that the evidence submitted

to the Appeals Council in support of his request for review
constitutes "new and material evidence" because it "directly
pertains" to his "left knee impairment."

(ECF No. 9 at 15).

Even though the additional evidence submitted to the Appeals
Council pertains to Godfrey's knee impairment, it does not
warrant a remand for further consideration of his claims.
Evidence is not considered to be "new" within the meaning of

§

405(g) if it is "merely cumulative of what is already in the
record."

Szubak v. Secretary of Health & Human

F.2d 831, 833

(3d Cir. 1984).

ces, 745

Furthermore, Godfrey cannot

satisfy the "materiality" standard without showing that there is
a "reasonable possibility that the new evidence would have
changed the outcome of the [Commissioner's] determination."
Godfrey points to nothing in the documents submitted to the
Appeals Council that would have impugned the ALJ's decision in
this case.

(ECF No. 9 at 14-15).

Accordingly, a remand for

further consideration of Godfrey's claims for DIB and SSI
benefits is not justified. 14

14Since the ALJ's decision denying Godfrey's claims for DIB and SSI benefits
(i.e., the Commissioner's "final decision") was rendered on April 23, 2008,
there is nothing preventing Godfrey from relying on the additional evidence
submitted to the Appeals Council to support subsequently-filed claims. The
Court notes that Godfrey remained insured for benefits under Title II through
June 30, 2009, which was more than a year after the date of the ALJ's
decision.
(R. at 9).

23

The ALJ's determination that Godfrey was capable of
engaging in sedentary work activities is amply supported by the
record.

Dr. Jeffrey N. Kann, who examined Godfrey on December

27, 2004, reported that he could perform a limited range of

medi um work.

(R. at 497).

On May 22, 2006, Dr. Patrick DeMeo

opined that Godfrey could perform light work. 15

(R. at 528).

Dr. DeMeo indicated on January 4, 2007, that Godfrey could
perform medium work.

(R. at 567).

Two nonexamining medical

consultants suggested that Godfrey was capable of performing

light work.

(R. at 272 278, 326 332).

The arguments advanced

by Godfrey provide no basis for disturbing the ALJ's decision.

VI.

Conclusion
For the foregoing reasons, the decision of the Commissioner

is "supported by substantial evidence."

42 U.S.C.

§

405(g).

Therefore, the Court will deny Godfrey's motion for summary
judgment, grant the Commissioner's motion for summary judgment,
and

firm the Commissioner's administrative decision.
AND NOW, this

l2

q
day of May, 2011, IT IS HEREBY

ORDERED that the motion for summary judgment filed by the
Plaintiff (ECF No.8)

is DENIED, and that the motion for summary

15 The ALJ accorded "great weight" to Dr. DeMeo's op1n1on.
(R. at 15).
It is
significant that Godfrey does not directly challenge the ALJ's evaluation of
the medical evidence with respect to the residual functional capacity
determination.
(ECF NO. 9 at 15-19). By focusing on Social Security Rulings
that do not help his case, Godfrey implicitly concedes that the ALJ's
residual functional capacity assessment was firmly grounded in the
documentary evidence.

24

judgment filed by the Defendant (ECF No. 12) is GRANTED.

IT IS

FURTHER ORDERED that the administrative decision of the
Commissioner of Social Security is hereby AFFIRMED.

Gary L. Lancaster
Chief United States District Judge

cc:

All counsel of record

25