HARBAUGH v. ASTRUE
MEMORANDUM JUDGMENT ORDER denying 5 Plaintiff's Motion for Summary Judgment and granting 8 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/20/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
VICKI J. HARBAUGH,
Civil Action No. 10-954
MICHAEL J. ASTRUE,
MEMORANDUM JUDGMENT ORDER
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
( "Commissioner" )
plaintiff's application for disability insurance benefits under
Title II of the Social Security Act ("Act"),
IT IS ORDERED that
the Commissioner's motion for summary judgment (Document No.8)
be, and the same hereby is,
granted and plaintiff's motion for
and the same hereby is,
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may rej ect
reasons for doing so.
the ALJ explains
Plummer v. Apfel,
186 F.3d 422, 429
where the ALJ's findings of fact are
supported by substantial evidence, a reviewing court is bound by
those findings, even if it would have decided the factual inquiry
247 F.3d 34,
These well-established principles preclude a reversal or
remand of the ALJ 1S decision here because the record contains
Plaintiff protectively filed
her pending application
disability insurance benef its on November 6,
disability onset date of August I, 2007, due to problems with her
right shoulder and arm, back problems, arthritis, depression and
plaintiff's request an ALJ held a hearing on October 16, 2009, at
which plaintiff, represented by counsel, appeared and testified.
On November 9, 2009, the ALJ issued a partially favorable decision
finding that plaintiff was not disabled prior to June 12, 2009,
but became disabled on that date when she turned 55.
On June 24,
2010, the Appeals Council denied review making the ALJ's decision
the final decision of the Commissioner.
Plaintiff was 53 years old on her alleged onset date, which
is classified as a person closely approaching advanced age under
the regulations, 20 C.F.R. §404.1563(d), and turned 55 on June 12,
2009, which is classified as a person of advanced age under the
She has at least a high
school education and has past relevant work experience as a cook
and a dietary aide, but she has not engaged in any substantial
gainful activity since her alleged onset date.
testimony from plaintiff and a vocational expert, the ALJ found
that although plaintiff suffers from the severe impairment of
status post right rotator cuff repair, that impairment, alone or
in combination with her non-severe impairments 1 , does not meet or
equal the criteria of any of the impairments listed at Appendix 1
of 20 C.F.R., Part 404, Subpart P.
functional capacity to perform light work except that she cannot
lift more than 10 pounds overhead with her right upper extremity.
A vocational expert identified numerous categories of
jobs that an individual closely approaching advanced age with a
high school education and the above residual functional capacity
assembler and order clerk.
Relying on the vocational expert's testimony, the ALJ found that
while plaintiff cannot perform her past relevant work, she would
have been capable of making an adjustment to work which exists in
significant numbers in the national economy before she turned 55.
the ALJ determined that plaintiff was not disabled
within the meaning of the Act prior to June 12, 2009.
of June 12,
when plaintiff turned 55,
the ALJ determined
that plaintiff is disabled under Medical-Vocational Rule 202.06 of
Appendix 2 of 20 C.F.R., Part 404, Subpart P.
The ALJ found the following impairments to be not severe
under the regulations: gastroesophageal reflux disease (GERD),
mild degenerative changes of the left knee, high blood pressure
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
§423 (d) (1) (A) .
impairment or impairments must be so severe that the claimant "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
• • • • II
42 U.S.C. §423 (d) (1) (B) .
The Commissioner has promulgated regulations incorporating a
five step sequential evaluation process 2 for determining whether
a claimant is under a disability.
20 C.F.R. §404.1520i Newell v.
Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003) .
If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further.
Id.; see Barnhart v. Thomas,
124 S.Ct. 376 (2003).
Here, neither party disputes that plaintiff became disabled
as of her 55 th birthday on June 12,
under the Medical
The ALJ must determine in sequence:
(1) whether the
claimant currently is engaged in substantial gainful activi ty i (2)
if not, whether she has a severe impairment; (3) if so, whether
her impairment meets or equals the criteria listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 i
(4) if not, whether the
claimant I s impairment prevents her from performing her past
relevant work; and, (5) if so, whether the claimant can perform
any other work which exists in the national economy in light of
her age, education, work experience and residual functional
20 C.F.R. §404.1520.
In addition, when there is
evidence of a mental impairment that allegedly prevents a claimant
from working, the Commissioner must follow the procedure for
evaluating mental impairments set forth in the regulations.
Plummer, 186 F.2d at 432i 20 C.F.R. §404.1520a.
Vocational Guidelines ("the Grids") set forth in Appendix 2 of the
finding that she was not disabled prior to June 12, 2009:
ALJ improperly rejected opinions from 3 medical sources which, if
accepted, would have precluded her from performing light work as
found by the ALJ in his residual functional capacity finding; and,
vocational expert which failed to account for plaintiff's likely
need for multiple unexcused absences as suggested by two of her
Upon review, the court is satisfied that the
ALJ's determination that plaintiff was not disabled prior to age
55 is supported by substantial evidence.
Plaintiff first challenges the ALJ's step 5 finding 3 that she
has the residual functional capacity to perform light work limited
to lifting no more than 10 pounds overhead with her upper right
She contends that the ALJ improperly rej ected opinions
from three physicians suggesting that she also is limited in the
amount of time she can stand/walk in an 8 -hour workday.
finds no error in the ALJ's evaluation of the medical evidence.
At step 5 of the sequential evaluation process, the ALJ
must show that there are other jobs existing in significant
numbers in the national economy which the claimant can perform
consistent with her medical impairments, age, education, past work
experience and residual
Residual functional capacity is defined as that
which an individual still is able to do despite the limitations
caused by her impairments. 20 C.F.R. §404.1545(a) i Fargnoli, 247
F.3d at 40.
Under the Social Security Regulations and the law of this
substantial, and at times even controlling,
§404 .1527 (d) (2)
F. 3d at 33.
physician's opinion on the nature and severity of an impairment
is well supported by medically acceptable clinical and laboratory
substantial evidence in the record, it will be given controlling
However, when a treating source's opinion is not
entitled to controlling weight, it is evaluated and weighed under
the same standards applied to all other medical opinions, taking
§404 .1527 (d) .
Plaintiff argues that the ALJ improperly rejected reports
from two treating physicians, Dr. Santarlas and Dr. Zimmerman, and
from an examining source,
all of whom suggested that
plaintiff can stand/walk less than 6 hours in an 8-hour workday.4
She contends that had the ALJ accepted these opinions she would
be incapable of performing light work, which requires standing or
walking for a total of approximately 6 hours in an 8 -hour workday.
See 20 C.F.R. §404.1567(b) and SSR 83-10.
4 Dr. Santarlas indicated that plaintiff would be able to
stand/walk only 2 hours per day.
suggested that plaintiff could stand/walk about 4 hours in an 8
hour workday. (R. 695). Dr. Vin opined that plaintiff could stand
and walk 3-6 hours in an 8-hour workday, but also suggested a
In his decision, the ALJ expressly addressed the opinions of
explained why he gave those opinions "little weight."
In particular, he noted that those opinions are inconsistent with
other substantial evidence of record,
including the obj ective
medical notes and findings, plaintiff's activities of daily living
and the opinion of the state agency medical consultant.
The ALJ's evaluation of the medical evidence is supported by
First, none of the three physicians who opined that
plaintiff was limited in her ability to stand/walk set forth any
narrative as to how they had arrived at their conclusions and the
purported limitations are not supported by any of the objective
medical findings or their own treatment notes.
been based primarily upon plaintiff's
subjective complaints, which the ALJ found to be only partially
credible in light of both the clinical and objective findings and
plaintiff's activities of daily living.
does not challenge the ALJ's credibility determination here.
Moreover, the medical evidence does not show the presence of
any back or leg impairment, or any other impairment, which might
be expected to limit plaintiff's ability to stand/walk.
impairment which the ALJ found to be severe is status post right
rotator cuff repair, which would have no impact upon plaintiff's
ability to stand or walk.
As the ALJ explained in his decision,
the opinion of Dr. Santarlas, in particular, appears to have been
based primarily on plaintiff's subjective complaints of a lower
which the ALJ noted was not supported by the
objective medical evidence.
the ALJ found that while plaintiff has some mild
degenerative changes in her left knee, she does not have a severe
knee impairment, concluding that any knee problems have no more
than a de minimus effect on plaintiff's ability to perform basic
work activities, which, under the regulations, include walking and
20 C.F.R. §404.1521(b) (1).
Plaintiff likewise has not
challenged the ALJ's step 2 finding.
The ALJ also properly considered the opinion of the state
agency consultant, who concluded that plaintiff can stand/walk 6
or more hours per day.
Pursuant to the Regulations, state agency
medical consultants are "highly qualified physicians ... who are
also experts in Social Security disability evaluation."
§404 .1527 (f) (2) (i).
Accordingly, while not bound by findings made
by reviewing physicians, the ALJ is to consider those findings as
opinion evidence, and is to evaluate them under the same standards
§416.1527(f) (2) (ii)
The ALJ did so here and properly
gave that opinion "some weight."
The ALJ thoroughly addressed the relevant medical evidence
in his decision and adequately explained his
weight he accorded to the medical opinions from Drs. Santarlas,
Zimmerman and Vin.
The court has reviewed the ALJ's decision and
the record as a whole and is satisfied that the ALJ's evaluation
of the medical evidence is supported by substantial evidence.
expert's response to a hypothetical that failed to account for the
likelihood that plaintiff would be absent from work for four or
more days per month as suggested by both Dr. Santarlas (R. 439)
and Dr. Zimmerman (R. 696).
Because there is no objective medical
incorporating any such limitation into the hypothetical upon which
A hypothetical to the vocational expert must reflect only
Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984).
Here, the need
to miss work for four or more days per month is supported neither
by the objective medical evidence nor by plaintiff's reported
Accordingly, the ALJ did not err in rejecting
the vocational expert's response to a hypothetical posited by
plaintiff's attorney incorporating such limitations.
v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004)
(ALJ has authority
inconsistent with evidence) .
Instead, the ALJ properly relied upon the vocational expert's
limitations supported by the record, and the vocational expert's
testimony in response to that hypothetical constitutes substantial
evidence supporting the ALJ's finding that plaintiff, prior to
reaching age 55, retained the ability to perform work existing in
significant numbers in the national economy.
carefully and methodically considering all
medical evidence of record and plaintiff's testimony,
determined that plaintiff was not disabled within the meaning of
conclusions are supported by substantial evidence and are not
Commissioner must be affirmed.
United States District Judge
cc: George E. Clark, Esq.
Woomer & Hall
2945 Banksville Road
Pittsburgh, PA 15216
Assistant United States Attorney
700 Grant Street
Pittsburgh, PA 15219
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