MCKENZIE v. ASTRUE
Filing
11
MEMORANDUM OPINION AND ORDER denying 7 Motion for Summary Judgment filed by Plaintiff; and granting 9 Motion for Summary Judgment filed by Defendant.Signed by Judge Terrence F. McVerry on 08/25/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNETH McKENZIE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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02: 10-cv-1138
MEMORANDUM OPINION AND ORDER OF COURT
August 25, 2011
I.
INTRODUCTION
Kenneth McKenzie (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), for
judicial review of the final determination of the Commissioner of Social Security (“Defendant”
or “Commissioner”) which denied his application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401-433, 1381 - 1383f (“Act”).
II.
PROCEDURAL HISTORY
In July 2007, Plaintiff filed an application for DIB and a separate application for SSI. In
both applications he claimed an inability to work due to disability beginning August 28, 2002.
(R. at 110 – 21)1. Both claims were denied at the initial level of administrative review and,
1
Citations to ECF Nos. 5 – 5-9, the Record, hereinafter, “R. at __.”
thereafter, Plaintiff filed a timely request for review. An administrative hearing was held on
August 26, 2009, before Administrative Law Judge Alma S. DeLeon (“ALJ”). Plaintiff was
represented by counsel and testified at the hearing.
William H. Reed, Ph.D., an impartial
vocational expert (“VE”) also testified at the hearing. (R. at 21).
On October 13, 2009, the ALJ rendered an unfavorable decision to Plaintiff in which she
found that Plaintiff had the residual functional capacity to perform light work with restrictions,2
and therefore was not disabled as defined in the Act. The ALJ’s decision became the final
decision of the Commissioner on July 10, 2010, when the Appeals Council denied Plaintiff’s
request for review.
On September 2, 2010, Plaintiff filed his Complaint in this Court in which he seeks
judicial review of the ALJ’s decision. The parties have filed cross-motions for summary
judgment. Plaintiff contends that the ALJ erred when she found that Plaintiff had the residual
functional capacity to perform work at the light exertional level, with restrictions. The
Commissioner contends that the decision of the ALJ should be affirmed as it is supported by
substantial evidence. For the reasons that follow, the Court agrees with the Commissioner and
will therefore grant the motion for summary judgment filed by the Commissioner and deny the
motion for summary judgment filed by Plaintiff.
III.
STATEMENT OF THE CASE
General Background
Plaintiff was born June 27, 1959, and was fifty years of age at the time of his
administrative hearing. (R. at 27). Plaintiff was six feet, four inches tall, and weighed two
2
Specifically, the ALJ found that Plaintiff could perform light work limited by the following: to lift and
carry no more than 20 pounds, to push and pull in his lower extremities; to make complex decisions; to follow
detailed instructions; to be exposed to heights; and to be exposed to moving machinery. (R. at 14).
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hundred eighty two pounds. (R. at 29). Plaintiff has a twelfth grade education. He resided in
the home of his deceased aunt. (R. at 28).
Plaintiff has past relevant work as a furniture handler and hotel housekeeper and laundry
room worker, which are considered unskilled and very heavy and medium exertion. In 2002,
Plaintiff was laid off from his most recent job and he has not worked since that time. (R. at 34).
He subsists on public welfare and food stamps and has a state medical insurance card. (R. at 34
– 35).
A. Medical History
Plaintiff’s medical history reflects that he was treated at Aliquippa Community Hospital,
in Aliquippa, Pennsylvania, between November 2002 and August 2008 for various complaints,
including neck and back pain that he sustained as a result of a motor vehicle accident in 2003,
elbow and knee pain, and cardiovascular complaints, as well as diabetes mellitus and
hypertension.
Imaging studies of Plaintiff’s heart in November of 2002 revealed relatively normal heart
functioning, with an ejection fraction of fifty three percent. (R. at 235). A stress test in the same
time period revealed normal blood pressure and heart rate response, and fair functional reserve.
(R. at 237). A later examination of Plaintiff in February of 2007 at Sewickley Valley Hospital,
in Sewickley, Pennsylvania, was also normal. (R. at 248).
Following his car accident in November 2003, imaging studies of Plaintiff’s head, neck,
and spine were conducted which revealed no abnormalities. (R. at 217 – 18, 225). Imaging of
the lumbar spine in May and July of 2009 also yielded normal results. (R. at 456, 459 – 60). In
March of 2004, an imaging study of Plaintiff’s right elbow was conducted. (R. at 216). Plaintiff
complained of right elbow pain and swelling following a basketball game. (R. at 216). Imaging
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showed only a bony contusion. (R. at 216). Plaintiff received an x-ray of his right knee
following a fall on ice in December of 2004. (R. at 215). The image showed no evidence of
fracture and very mild degenerative changes in the knee joint. (R. at 215).
From 2003 through 2009, Plaintiff was treated for his diabetes and hypertension by
Gerald M. Goltz, M.D., an endocrinologist. Dr. Goltz noted that Plaintiff checked his blood
sugar once or twice per day, although Plaintiff once admitted to checking his levels only
occasionally, resulting in blood sugar levels that were “out of whack.” (R. at 251 – 311, 419 –
45). Blood sugar levels ranged from the 120’s to the 400’s during Plaintiff’s course of treatment
with Dr. Goltz. (R. at 251 – 311, 419 – 45). Dr. Goltz diagnosed Plaintiff with type II diabetes,
hypertension, dyslipidemia, and metabolic syndrome. (R. at 251 – 311, 419 – 45). Plaintiff was
regularly prescribed medication for management of these conditions. (R. at 251 – 311, 419 –
45). By January of 2005, Dr. Goltz indicated that Plaintiff’s diabetes was better controlled and
that his blood pressure levels were within an acceptable range. (R. at 251 – 311, 419 – 45). In
August of 2008, Dr. Goltz again indicated that Plaintiff’s glycemic balance was relatively
improved. (R. at 251 – 311, 419 – 45).
K. Narayan Shetty, M.D. , was Plaintiff’s primary care physician from 2002 through
2009. (R. at 313 – 58, 446 – 66). During this time, Plaintiff’s blood sugar levels ranged from 72
– 348. (R. at 313 – 58, 446 – 66). Physical examinations during his treatment with Dr. Shetty
were largely normal. (R. at 313 – 58, 446 – 66). An echocardiograph of Plaintiff’s heart by Dr.
Shetty in 2003 revealed relatively normal heart function and an ejection fraction of sixty one
percent. (R. at 313 – 58, 446 – 66). A nerve conduction study conducted in February of 2007 to
determine the presence of diabetic peripheral neuropathy was negative; however, there was
neurological abnormality noted. (R. at 313 – 58, 446 – 66). A stress test administered by Dr.
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Shetty in February of 2007 indicated poor functional reserve and inappropriate heart response,
but Plaintiff’s blood pressure was normal. (R. at 313 – 58, 446 – 66). Programmed exercise was
thereafter recommended to improve Plaintiff’s health. (R. at 313 – 58, 446 – 66). A later stress
test in October of 2008 showed a fair functional reserve and a normal heart rate response, but an
inappropriate blood pressure response. (R. at 313 – 58, 446 – 66).
On August 31, 2009, Dr. Shetty completed a Medical Source Statement of Claimant’s
Ability to Perform Work-Related Activities. (R. at 468 – 69). Dr. Shetty noted that Plaintiff
could not lift any weight frequently, could only occasionally lift and carry up to twenty pounds,
could stand and walk one to two hours of an eight hour work day, sit less than six hours,
occasionally bend, kneel, stoop, crouch, balance, and climb, and had limited eyesight. (R. at 468
– 69).
B. Functional Assessments
On October 23, 2007, Andrew K. Cole, M.D., examined Plaintiff on behalf of the Bureau
of Disability Determination. (R. at 359 – 68). Dr. Cole determined that Plaintiff suffered from
diabetes and carpal tunnel syndrome. (R. at 359 – 68). Dr. Cole considered Plaintiff’s diabetes
to be uncontrolled, and noted that he suffered poor vision, body aches, and peripheral neuropathy
as a result. (R. at 359 – 68). He also found that Plaintiff experienced difficulty with pain,
numbness, and tingling in the right hand due to carpal tunnel syndrome. (R. at 359 – 68).
During a physical examination, Dr. Cole observed the Plaintiff had a normal gait, but was
unsteady on his heels and toes, and was able to get on and off of the exam table without
difficulty. (R. at 359 – 68). Dr. Cole noted that Plaintiff was somewhat obese; showed no signs
of muscle atrophy; and had muscle strength of 5/5 bilaterally. (R. at 359 – 68). Motor and
sensory functions were intact, with reflexes brisk and equal on both sides. (R. at 359 – 68).
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Dr. Cole noted that Plaintiff exhibited limited flexion, extension, and range of motion in
his knees and hips, but significant limitation in his wrist. (R. at 359 – 68). Dr. Cole indicated
that Plaintiff could not lift any weight frequently, could only occasionally lift and carry up to
twenty pounds, could stand and walk less than six hours of an eight hour work day, could sit one
to two hours, could only occasionally bend, kneel, stoop, crouch, balance, and climb, and would
experience limitation in handling, fingering, and seeing. (R. at 359 – 68).
On December 14, 2007, Dilip S. Kar, M.D., a state agency physician, reviewed the
record and completed an assessment of Plaintiff’s residual functional capacity (“RFC”). (R. at
369 – 75). Based on the medical record evidence, Dr. Kar opined that Plaintiff was capable of
occasionally lifting twenty pounds, frequently lifting ten pounds, standing and walking six hours
of an eight hour workday, and sitting six hours. (R. at 369 – 75). Dr. Kar found that Plaintiff
was not otherwise limited. (R. at 369 – 75). Dr. Kar explained that his findings were based upon
Plaintiff’s reported daily activities which were not significantly limited relative to Plaintiff’s
alleged symptoms, his ability to paint, his ongoing physical therapy, his ability to walk without
an assistive device, and his apparent ability to cope without prescribed pain medication. (R. at
369 – 75). Dr. Kar further concluded that the findings of Dr. Cole were largely unsupported by
record evidence and were primarily based upon Plaintiff’s subjective complaints. (R. at 369 –
75). Dr. Cole’s observations were considered to be an overestimation of Plaintiff’s limitations.
(R. at 369 – 75).
C. Administrative Hearing
Plaintiff described suffering from type II diabetes which requires regular administration
of insulin for control of blood sugar levels. (R. at 30). Plaintiff attributed leg pain, tingling and
numbness, liver problems, and carpal tunnel in his hands, to his diabetes. (R. at 30, 48).
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Plaintiff testified that his pain was significant and that he took prescription medication for relief.
(R. at 48). Plaintiff stated that dealing with his diabetes had been difficult for him. (R. at 33).
He explained that, according to his physicians, his diabetes would not likely improve in the
future. (R. at 46). He declined to characterize his diabetes as “controlled,” because he attested
to frequent spikes in his blood sugar levels. (R. at 46). Plaintiff has not been hospitalized for
diabetes-related illness/health conditions since 2006. (R. at 46).
Plaintiff also testified that his doctors recommended that he avoid straining/stressful
situations and that he diet and exercise to lose weight. (R. at 47). Plaintiff reported that he was
largely unsuccessful to this end, because he tired easily and became out of breath when
exercising. (R. at 47). He believed that if it were not for his diabetes and related symptoms, and
his medications, he would be able to work. (R. at 43). Plaintiff expressed a desire to work, but
did not feel that he could. (R. at 43).
Plaintiff testified that he spent much of his day sitting and lying down. (R. at 41, 51 –
52). According to Plaintiff, he can only stand one to two hours and cannot sit for more than half
of an hour. (R. at 50). Plaintiff lives independently and, on a regular basis, Plaintiff is able to
clean his residence including: washing dishes, mopping/sweeping/vacuuming the floors, cleaning
the bathroom, making his bed, and taking out the trash. (R. at 37). He also cooks for himself
and goes to the to the grocery store once a month. (R. at 37, 39).
Plaintiff testified that he was able to lift thirty to forty pounds without difficulty, and
occasionally lift forty to fifty pounds. (R. at 49). He attends church regularly. (R. at 39 – 40).
Plaintiff reported his past hobbies had included fishing and painting, but testified that he only
occasionally now goes fishing and seldom paints. (R. at 38 – 39). He also reported that he does
not visit his friends as often as he once had. (R. at 40).
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Plaintiff does not have a driver’s license and does not drive. He complained that he had
difficulty sleeping through the night. (R. at 40 – 41). He typically went to bed between 11:00
and 11:30 p.m., and usually arose between 7:00 and 8:00 a.m. (R. at 40 – 41). Due to his poor
sleep, Plaintiff testified that he took two naps twice a day for up to two hours at a time. (R. at
41).
Following Plaintiff’s testimony, the ALJ asked the vocational expert whether a
significant number of jobs in the national economy would be available to a hypothetical
individual of Plaintiff’s age, educational background, and work experience, but limited to light
exertional work requiring lifting and carrying no more than twenty pounds, not requiring
complex decision-making, detailed instruction, moving machinery, or exposure to heights, and
involving only limited pushing and pulling with the upper and lower extremities. (R. at 54).
The vocational expert replied that such a person would be capable of engaging in work as
an “unskilled cashier,” with 850,000 jobs available in the national economy, as an “usher,” or
“ticket taker,” with 33,000 jobs available, or as an “unskilled security guard,” with 750,000 jobs
available. (R. at 54 – 55). Plaintiff’s attorney inquired whether the availability of said positions
would change if the hypothetical person would be off-task for up to two hours a day. (R. at 56).
The vocational expert stated that no work would be available to such a person. (R. at 56).
Plaintiff’s attorney then asked whether work would be available to the hypothetical person if he
or she would be absent from work at least two days per month on an ongoing basis. (R. at 56).
The vocational expired replied that no jobs would be available to such a person. (R. at 56).
Finally, Plaintiff’s attorney asked whether the hypothetical person would be capable of working
if he or she could stand and walk less than six hours per day, and could sit no more than two
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hours per day. (R. at 57). The vocational expert responded that no full-time work would be
available to such a person. (R. at 57).
IV.
STANDARD OF REVIEW
The Act limits judicial review of disability claims to the Commissioner's final decision.
42 U.S.C. §§ 405(g)/1383(c)(3). If the Commissioner's finding is supported by substantial
evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The United States Supreme Court has defined
"substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Capato v. Commissioner
of Social Security, 631 F.3d 626, 628 (3d Cir. 2010) (internal citation omitted). It consists of
more than a scintilla of evidence, but less than a preponderance. Thomas v. Commissioner of
Social Security, 625 F.3d 798 (3d Cir. 2010).
When resolving the issue of whether an adult claimant is or is not disabled, the
Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920
(1995). This process requires the Commissioner to consider, in sequence, whether a claimant (1)
is working, (2) has a severe impairment, (3) has an impairment that meets or equals the
requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not,
whether he or she can perform other work. See 42 U.S.C . § 404.1520; Newell v. Commissioner
of Social Security, 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting Burnett v. Commissioner of
Social Security, 220 F.3d 112, 118-19 (3d Cir. 2000)).
To qualify for disability benefits under the Act, a claimant must demonstrate that there is
some "medically determinable basis for an impairment that prevents him or her from engaging in
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any substantial gainful activity for a statutory twelve-month period." Fargnoli v. Halter, 247
F.2d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1) (1982). This
may be done in two ways:
(1) by introducing medical evidence that the claimant is disabled per se because he or
she suffers from one or more of a number of serious impairments delineated in 20 C.F.R.
Regulations No. 4, Subpt. P, Appendix 1. See Heckler v. Campbell, 461 U.S. 458 (1983);
Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); or,
(2) in the event that claimant suffers from a less severe impairment, by demonstrating
that he or she is nevertheless unable to engage in "any other kind of substantial gainful work
which exists in the national economy . . . ." Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423
(d)(2)(A)).
In order to prove disability under the second method, a claimant must first demonstrate
the existence of a medically determinable disability that precludes plaintiff from returning to his
or her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once it is shown that
claimant is unable to resume his or her previous employment, the burden shifts to the
Commissioner to prove that, given claimant’s mental or physical limitations, age, education and
work experience, he or she is able to perform substantial gainful activity in jobs available in the
national economy. Rutherford, 399 F.3d at 551; Newell, 347 F.3d at 546; Jones, 364 F.3d at 503;
Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
Where a claimant has multiple impairments which may not individually reach the level of
severity necessary to qualify any one impairment for Listed Impairment status, the
Commissioner nevertheless must consider all of the impairments in combination to determine
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whether, collectively, they meet or equal the severity of a Listed Impairment. Diaz v.
Commissioner of Social Security, 577 F.2d 500, 502 (3d Cir. 2010); 42 U.S.C. § 423(d)(2)(C)
(“in determining an individual’s eligibility for benefits, the Secretary shall consider the
combined effect of all of the individual’s impairments without regard to whether any such
impairment, if considered separately, would be of such severity”).
In this case, the ALJ determined that Plaintiff was not disabled within the meaning of the
Act at the fifth step of the sequential evaluation process. In making this determination, the ALJ
concluded that Plaintiff had the residual functional capacity to perform light work, with certain
limitations.
V.
DISCUSSION
In essence, Plaintiff’s sole argument is that even if Plaintiff were capable of performing
light exertional work, the opinions of Drs. Shetty and Cole demonstrate that Plaintiff cannot
perform light work for eight hours per day.
In her decision, the ALJ specifically considered these opinions and found that they both
appeared to be an overestimate of Plaintiff’s limitations. Dr. Shetty provided no medical
findings or explanation to support his September 2008 opinion that Plaintiff was limited to
working less than eight hours per day and Dr. Shetty stated that his finding was based on pure
speculation.
In order to be entitled to controlling weight, a treating physician’s opinion must be “wellsupported by medically acceptable clinical and laboratory diagnostic techniques,” and must not
be “inconsistent with the other substantial evidence” in the record. 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2). Case law is clear that an ALJ is entitled to disregard the opinions of a treating
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physician which are conclusory, unsupported by the medical evidence, or internally inconsistent.
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991).
Both Dr. Shetty and Dr. Cole performed a physical examination of Plaintiff and
completed medical source statements of Plaintiff’s ability to perform work related physical
activities. The ALJ found that the physical assessments of Drs. Shetty and Cole produced
essentially unremarkable findings and that while the assessments showed severe symptoms and
limitations, the ALJ found that such symptoms and limitations were properly accommodated for
in the RFC determination.
Unlike the opinions of Drs. Shetty and Cole, the ALJ found that the opinion of Dr. Kar
was supported by the medical evidence of record. For example, Dr. Kar found that Dr. Cole’s
report was an overestimate of the severity of Plaintiff’s limitations as Dr. Cole had relied heavily
upon Plaintiff’s self-reported symptoms and limitations and that the totality of the medical
evidence did not support those subjective complaints.
The ALJ also considered Plaintiff’s subjective complaints of disabling limitations and
found that such limitations did not rule out light work. Further, the ALJ found that any
limitations appeared to be manageable with medications and appropriate medical treatment.
The ALJ also noted that Plaintiff’s attorney had propounded questions to the VE that
contained additional limitations to Plaintiff’s capacity for work. However, the ALJ specifically
found that these limitations were not consistent with the medical evidence of record and, thus,
rejected the questions and answers.
For all these reasons, the Court finds that the determination of the ALJ is supported by
substantial evidence and that the residual functioning capacity assessment adopted by the ALJ
adequately reflects Plaintiff’s credibly established limitations.
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VI.
CONCLUSION
It is undeniable that Plaintiff has a number of impairments, and this Court is sympathetic
and aware of the challenges which Plaintiff faces in seeking gainful employment. Under the
applicable standards of review and the current state of the record, however, the Court must defer
to the reasonable findings of the ALJ and her conclusion that Plaintiff is not disabled within the
meaning of the Social Security Act, and that he is able to perform a light exertional work, with
limitations.
For these reasons, the Court will grant the Motion for Summary Judgment filed by the
Commissioner and deny the Motion for Summary Judgment filed by Plaintiff.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNETH McKENZIE,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
02: 10-cv-1138
ORDER OF COURT
AND NOW, this 25th day of August, 2011, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1.
The Motion for Summary Judgment filed by Plaintiff, Kenneth McKenzie,
(Document No. 7) is DENIED.
2.
The Motion for Summary Judgment filed by Defendant, Michael J. Astrue,
Commissioner of Social Security (Document No. 9) is GRANTED.
3.
The Clerk will docket this case as closed.
BY THE COURT:
s/ Terrence F. McVerry
United States District Judge
cc:
Stanley E. Hilton, Esquire
Email: GO2166@aol.com
Albert Schollaert,
Assistant U.S. Attorney
Email: albert.schollaert@usdoj.gov
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