GOODWIN v. ASTRUE

Filing 14

MEMORANDUM OPINION re: 8 MOTION for Summary Judgment filed by DONALD W. GOODWIN, and 12 MOTION for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY. Signed by Judge William L. Standish on 8/30/2011. (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD W. GOODWIN,
Plaintiff,
Civil Action No. 10-1506

vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION
I.

INTRODUCTION
Pending before the Court are cross-motions for summary judgment

filed by Plaintiff Donald W. Goodwin and Defendant Michael J. Astrue,
Commissioner of Social Security.

Plaintiff seeks review of final

decisions by the Commissioner denying his claims for disability
insurance benefits ("DIB") under Title II of the Social Security Act,
42 U.S.C. §§ 401 et seq., and supplemental security income benefits
("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381
et seq.

For the reasons discussed below,

Defendant's motion is

granted and Plaintiff's motion is denied.
I I .

BACKGROUND
A.

Factual Background
Plaintiff Donald W. Goodwin was born on September 30, 1960.

(Certified

Transcript

of

Social

Proceedings, Doc. No.6, "Tr.," at 1 00. )

Security

Administration

After graduating from high

school

in

1978,

construction

he

worked

business.

regularly

(Tr.

135,

for

several

118-121.)

years

Mr.

in

the

Goodwin

was

employed as a framing carpenter from at least 1987 until August 2008.
This work required lifting and carrying lumber, sometimes 100 pounds
or more, and hoisting the frames used in hotlsing construction.
130.)

(Tr.

For a brief period between 1999 and 2001, Plaintiff attempted

unsuccessfully to operate his own business, but then returned to
working with his brother in the building industry.

(Tr. 101, 121.)

In 2005, Mr. Goodwin underwent carpal tunnel surgery in both
wrists which relieved the pain in his hands.

Soon after, he began

developing pain and swelling in his right elbow, increasing pain in
his shoulders, hips and knees, puffiness with warmth on the back of
his hands, and a number of problems with his feet.

In December 2006,

based on the results of a series of blood tests, Mr. Goodwin was
diagnosed with rheumatoid arthritis
ini tially treated wi th prednisone.

("RAn)

1

(Tr.

223)

which was

He also developed low back pain

about the same time which was attributed to two bulging discs in his

Rheumatoid arthritis causes pain, swelling, stiffness and loss of function
in the joints, most commonly in the wrists and fingers.
The symptoms of
the disease may fluctuate in severity and location.
RA is distinct from
osteoarthritis, a condition commonly associated with aging, in that it is
an autoimmune disease, meaning it results from the immune system attacking
the body's own issues.
The cause is unknown.
Treatments include
medication, lifestyle changes, and surgery in an effort to slow or stop
joint damage and reduce pain and swelling.
See "Health Topics" at the
National
Institute of Medicine's on-line website,
Medline
Plus,
www.nlm.nih.gov/medlineplus (last visited August 19, 2011), "Medline
Plus."
1

2

lumbar spine.

His back pain was exacerbated by the Ii

carrying required by his job as a carpenter.
Mr. Goodwin later stat
diagnosed

with

medication

side

appointments

and

arthritis,

and

eventually unable to cont

B.

missed

treatments.

shoulders and arms.

(Tr. 223.)

he had attempted to work after being

rheumatoid
effects

ing and

(Tr.

but

work

had

because

129.)

He

significant
of

doctor's

reported

he was

working due to increased pain in his

(Tr. 358.)

Procedural Background
In

August

2008,

Mr.

Goodwin

led

applications

for

supplemental security income and disability insurance benefits,
alleging

disability

as

of

August

1,

2008,

due

to

rheumatoid

arthritis, bulging discs, inability to sleep, and side ef

s of

his medications that caused him to "get dizzy and 'weirded out'
exposed

to

(Tr.

sunlight.

129. )

The

Social

II

when

Security

Administration ("SSA") denied his applications on November 6, 2008,
reasoning that although he could not return to his previous work as
a carpenter,

there were other jobs he could perform de

physical limi ta tions.
Plaintiff

then

te his

(Tr. 51 63.)
timely

requested

a

hearing

before

an

Administrative Law Judge ("ALJ"), which was held on April 1, 2010,
before
Goodwin,

Judge

Norma

who was

Cannon

represent

in

Morgantown,
by counsel,
3

West

Virginia.

testified,

as

Mr.
did an

impartial vocational expert

("VE"), Larry A.

Bell.

Judge Cannon

issued her decision on April 26, 2010, again denying benefits.
7

6.)

On September 15, 2010, the Social Security Appeals Council

advised Mr.
de

Goodwin that it had chosen not to review

sion, finding no reason under its rules to do so.

There

(Tr.

ALJ's
(Tr. 13.)

re, the April 26, 2010 opinion became the final

Commissioner for

purposes of

review.

42

U.S.C.

sion of
§

405(h};

ting

Rutherford v. Barnhart, 399 F.3d 546,549-550 (3d Cir. 2005),
530 U.S.

103,

107

(2000).

On November 9,

2010,

intiff filed suit in this Court seeking judicial review of the
ALJ's decision.
C.

Jurisdiction
This

§

1383(c} (3)

Court

has

jurisdiction

by

virtue

of

42

U.S.C.

(incorporating 42 U.S.C. § 405(g)} which provides that

an individual may obtain judicial review of any final de

sion of

the Commissioner by bringing a civil action in the district court
of the Uni ted States for the judicial district in which

plaintiff

resides.
III. STANDARD OF REVIEW

The scope of review by this Court is limited to determining
whether the Commissioner applied the correct legal standards and
whether the record,

as a whole,

contains substantial evidence to

support the Commissioner's findings of fact.
4

42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389 (1971); Schaudeck v. Comm'r of
Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).

Findings of

by the Commissioner are considered conclusive if they are supported
by "substantial evidence," a standard which has been described as
requiring

more

than

a

"mere

scintilla"

of

evidence,

that

is,

equivalent to "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
"A single piece
if the [ALJ]

Richardson, id. at 401.

evidence will not satisfy the substantiality test

ignores, or fails to resolve a conflict, created by

countervailing evidence."

Kent v. Schweiker, 710 F.2d 110, 114 (3d

Cir. 1983).
This Court does not undertake de novo review of the decision
and does not re-weigh the evidence presented to the Commissioner.
Schoengarth v. Barnhart,

416 F. Supp.2d 260,

265

(D.

Del.

2006),

ting Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190 (3d
Cir.

1986)

(the

substantial

evidence

standard

is

deferential,

including deference to inferences drawn from the facts if they, in
turn, are supported by substantial evidence.)
supported

by

substantial

evidence,

the

If the decision is

Court

must

affirm

the

decision, even if the record contains evidence which would support
a contrary conclusion.
App.

LEXIS 8159,

Heckler

*3

Panetis v. Barnhart, No. 03-3416, 2004 U.S.
(3d Cir.

Apr.

26,

2004),

citing Simmonds v.

807 F.2d 54, 58 (3d Cir. 1986), and Sykes v. Apfel, 228 F.3d

5

259, 262
IV.

(3d Cir. 2000).

ANALYSIS

A.

The ALJ's Determination
In

determining

whether

a

claimant

is

eligible

for

supplemental security income, the burden is on the claimant to show
that he has a medically determinable physical or mental impairment
(or combination of such impairments) which is so severe

is unable

to pursue substantial gainful employment 2 currently existing in the
national economy.3

The impairment must be one which is expected to

result in death or to have lasted or be expected to last not less
than twelve months.

42

U.S.C.

§

1382c(a) (3) (C) (I);

Apfel, 225 F.3d 310, 315-316 (3d Cir. 2000).

Morales

v.

To be granted a period

of disability and receive disability insurance benefits, a claimant
must also show that he contributed to the insurance program, is under
retirement age, and became disabled prior to the date on which he
was last insured.

42 U. S . C. § 423 (a); 20 C. F. R. § 404. 131 (a).

Commissioner does not dispute that Mr. Goodwin satis

The

ed the first

two non-medical requirements and the parties do not object to t

According to 20 C.F.R. § 416.972, substantial employment is defined as
"work activity that involves doing significant physical or mental
acti vi ties.
"Gainful work acti vi ty" is the kind of work acti vi ty usually
done for payor profit.
II

A claimant seeking supplemental security income benefi ts must also show
that his income and financial resources are below a certain level.
42

3

U.S.C.

§

1382(a).

6

ALJ's
2013.

nding that Plaintiff's date last insured will be December 31,
(Tr. 12.)
To determine a claimant's rights to either SSI or DIB,4 the ALJ

conducts a
(1)

rmal five-step evaluation:
if the claimant is working or doing substantial gainful
activity, he cannot be considered disabled;

(2) if the claimant does not suffer from a severe impairment
or combination of impairments that significantly limits
his ability to do basic work acti vi ty, he is not disabled;
(3) if the claimant does suf r from a severe impairment which
meets or equals criteria for an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings")
and the condition has lasted or is expected to last
continually for at least twelve months, the claimant is
considered disabledi
(4) if the claimant retains sufficient residual functional
capaci ty ("RFC") 5 to perform his past relevant work, he is
not disabled; and
(5) if,
taking into account the claimant's RFC,
age,
education, and past work experience, the claimant can
perform other work that exists in the local, regional or
national economy, he is not disabled.
20 C.F.R. § 416.920{a) (4)i see also Morales, 225 F.3d at 316.
In steps one, two, and four, the burden is on the claimant to
The same test is used to determine disability for purposes of recelvlng
either DIB or SSI bene ts. Burns v. Barnhart, 312 F.3d 113, 119, n.l (3d
Cir. 2002). Therefore, courts routinely consider case law developed under
both programs.
Briefly stated, residual functional capacity is
do despite his recogni zed limitations.
Social
defines RFC as "the individual's maximum remaining
on a regular and continuing basis, i.e., 8 hours a
or an equivalent work schedule."

7

the most a claimant can
Security Ruling 96-9p
ability to perform work
day, for 5 days a week,

dence to support his posi tion that he is ent

present

led to Social

Security benefits, while in the fifth step the burden shifts to the
Commissioner to show that the claimant is capable of
which is available in the national economy. 6
259, 263

rforming work

.:::....L:..;:...::..~~..:...:=.:::::....;;:..:::::..,

228 F. 3d

r. 2000).

(3d

Following the prescribed analysis, Judge Cannon first concluded
Mr. Goodwin had not engaged in substantial gainful activity since
August 1, 2008, his alleged disability onset date.

(Tr.12.)

In

resolving step two, the ALJ found that as of the date of the hearing,
Plaintiff

suffered

from

only

two

severe

impairments,

rheumatoid arthritis and rotator cuff syndrome.

(Id.

i.e.,

Although

she acknowledged Mr. Goodwin's complaints of bulging discs in his
spine,

carpal

tendonitis,

tunnel

syndrome,

and kidney cysts,

bursitis

in

his

shoulders,

as well as mental impairments of

"stress and depression," she concluded none of these condi tions were
"severe"

as

that

Administration. 7

term
(Tr.

is

defined

by

the

Social

Security

12-14.)

Step three involves a conclusive presumption based on the listings,
therefore, neither party bears the burden of proof at that stage.
Sykes,
228 F.3d at 263, n.2, citing Bowen v. Yuckert, 482 U.S. 137, 146-147 n.5
(1987) .

6

See 20 C. F. R. §§ 404.1520 (c), 404.1521 (a), and 140.1521 (b), stating that
an impairment is severe only if it significantly limits the claimant's
"physical ability to do basic work activities," Le., "abilities and
aptitudes necessary to do most jobs, including, for example, walking,
standing, sitting, Ii fting, pushing, pulling, reaching, carrying or
handling." The claimant has the burden of showing that the impairment is
8

At step three, the ALJ concluded neither of Plaintiff's severe
impairments,

considered singly or in combination,

cri teria of any relevant Listing.

satisfied the

That is, the rotator cuff syndrome

did not satisfy the cri teria of any impairment identified in Listing
1.02 (major dysfunction of a j

nt) and the seve

ty of Plaintiff's

rheumatoid arthritis did not satisfy the requirements of Listing
14.09 (inflammatory arthritis.)

(Tr. 15.)

At step four, the ALJ concluded Plaintiff retained the residual
functional capacity
to perform light work . . . with certain modifications. He
may perform occasional postural movements except [he] may
perform no climbing of ladders, ropes and scaffolds; may
not perform frequent overhead lifting; must avoid exposure
to extremes of heat and cold and workplace hazards such
as dangerous moving machinery and unprotected heights; is
limited to unskilled, entry level, routine and repetitive
work, primarily working with things rather than people;
and may have only occasional contact with the general
public.
(Tr. 15-16.)
The ALJ further noted that a functional capacity evaluation
performed in March 2010 had shown Mr. Goodwin had the capacity for
work at the medium exertional level.

(Tr. 20, ci ting Tr. 258-361.)

The ALJ concluded, however, based on the testimony of the Vocational
Expert, that the postural limitations evidenced by Mr. Goodwin were
more consistent with work at the light or sedentary level.
severe.

482 U.S.at 146, n.S.

9

(Tr.

20-21. )

Due to this rest

ction, the ALJ concluded Plaintiff could

not perform his past relevant work as a carpenter which the VE
described as skilled, heavy work.
on Plaintiff's age,

(Tr. 22,

46-47.) However, based

high school education,

work experience,

and

residual functional capacity, as well as Mr. Bell's testimony, the
ALJ concluded that jobs existed in significant numbers in the economy
which Plaintiff could perform despi te his limitations.

For example,

at the unskilled light level, the VE testified that a person with
Mr.

Goodwin's limitations could work as an assembler or laundry

folder and, at the unskilled sedentary level, as a machine tender
and general sorter.

(Tr.

22-23.)

Thus,

Plaintiff had not been

under a disability between August 1, 2008, and the date of the ALJ's
decision and, consequently, was not enti tIed to benefits.
B.

(Tr. 23.)

Plaintiff's Arguments
Mr. Goodwin raises seven arguments in his brief in support

of the motion for summary judgment.

(Doc. No. 13, "Plf. 's Brief.")

1.

The
ALJ
erred
in
rejecting
the
unrebutted
and
uncontradicted findings and opinions of Plaintiff's
treating source physicians, Drs. Mark G. Franz, Niveditha
Mohan, and Paul Means and the opinion of the evaluating
clinical psychologist, Dr. Lindsey Groves.
(Plf.' s Brief
at 3.)

2.

The ALJ erred by not including all of P intiff's severe
and non-severe impairments in her hypothetical question
to the Vocational Expert.
(rd. at 3-4, 18-19.)

3.

The VE's opinion that the Plaintiff can do either light
or sedentary work is not based upon substantial evidence.
10

(Plf.'s Brief at 4.)
4.

The ALJ erred by not finding Mr. Goodwin disabled at Step
3 since the evidence shows that the severity of his
affecti ve
disorder,
anxiety-re ted
disorder,
and
rheumatoid arthri tis satisfied Listings 12.04, 12.06, and
14.09, respectively.
(Id. at 4, 8.)

5.

The ALJ improperly relied upon the opinion of a
non-examining state agency physician whose opinion of
November 3, 2008, did not incorporate all of Plaintiff's
medical records.
(PI f . ' s Brief at 4.)

6.

The ALJ did not properly evaluate the effects
Plaintiff's rheumatoid arthritis and chronic pain
making her RFC assessment.
Id. at 4.)

7.

The ALJ erred by failing to take into consideration the
fact at the time of the hearing, Mr. Goodwin was within
six months of his fiftieth birthday and instead applied
the age categories of the guidelines in a mechanical
fashion, despite Mr. Goodwin's borderline situation.
(Plf.'s Brief at 19.)

Before

addressing

Plaintiff's

medical evidence of record.
conditions which did not,

arguments,

we

summarize

of
in

the

We have omitted discussion of those
according to the medical evidence or

Plaintiff's testimony and self-reports, cause any limi tations on his
abili ty

to

conclusions

perform
of

Dr.

substantial
Lindsey

gainful
Groves,

acti vi ty.
a

8

consulting

Also,

the

clinical

These include the notes of Dr. Sarfraz Ahmad, a gastroenterologist, who
treated Mr. Goodwin for a single episode of intestinal bleeding.
He
performed a routine colonoscopy on April 3, 2008, and removed a single
sessile polyp.
Dr. Ahmad recommended a follow up appointment with Dr.
Means, a high fiber diet, and periodic follow-ups.
(Tr. 187-204.)
Nor
have we discussed the report of Dr. Mohammed Zaitoon who, between May 2007
and February 2009, monitored PI ntiff's diagnoses of two small cysts on
his right kidney and small hypodense mass in his left adrenal gland.
(Tr.
158, 180-181, 237-239, 314-342.)
8

11

psychologist,

are

discussed

in

the

section

below

addressing

Plaintiff's arguments regarding his mental impairments.
C.

Medical Evidence

1.

Dr. Paul Means:

Although Dr. Means was identified

as having been Plaintiff's primary care physician since at least June
2007 (Tr. 132), the medical record is bereft of any notes of office
visits, and consists primarily of t
Plaintiff consulted at Dr. Means'

reports from other physicians
suggestion,

lab reports,

"Physician's Report" completed in March 2010 at
Plaintiff's counsel.
Means

indicated

that

(Tr. 180-185; 355-357.)
despite

treatment

the

and a

request of

In this Report, Dr.

with

methotrexate

and

naproxen,9 Plaintiff had made "very limi ted" progress due to pain and
continued to exhibit

symptoms of RA.

He described Plaintiff's

prognosis as "poor" and stated that his future care would include
frequent lab tests and medication adjustments.

He believed Mr.

Goodwin would be 100% permanently disabled, that is, he could not
engage

in employment

"on a

regular,

sustained,

competi ti ve and

9 Methotrexate
is an extremely potent drug used to treat a number of
conditions - including rheumatoid arthri s -- that cannot be effectively
controlled with other medications.
In treating RA, it is most effective
when used with rest, physical therapy, and other medications.
It is in
a class of drugs called antimetabolites which, in the case of RA, works
by decreasing the activity of the immune system.
Naprosyn (naproxen) is
a nonsteroidal anti-inflammatory drug used to relieve pain, tenderness,
swelling and stiffness caused by several conditions, including rheumatoid
arthritis, bursitis, and tendonitis.
See "Drugs and Supplements" entries
at Medline Plus; see also Tr. 183-185.

12

productive basis.H

Dr.

2.

Mark

Franz:

O.

Dr.

Franz,

a

doctor

of

osteopathic medicine, began treating Mr. Goodwin in January 2007.
(Tr. 179.)

At the time,

Plaintiff was complaining of persistent

pain in his back and hands.

He was unable to participate in physical

therapy at the time due to his work schedule.

(Tr.

171i

174.)

Radiographic studies done on January 12, 2007, showed normal

ght

lateral flexion of the cervical spine with minimal loss of left
lateral f

xion and normal curvature of the cervical spinei

the

vertebral bodies were normal in height and alignment and the pedicles
and processes were intact.

In short,

there was minimal dynamic

dysfunction with loss of left lateral flexion.

Tr. 177-178.)

By February 23, 2007, Dr. Franz had concluded based on blood
tests

that

arthritis.
activit
therapy.

Mr.

Goodwin's

(Tr.

170.)

pain
He

was

was

associated

having

with

difficulty

rheumatoid
with

most

s of daily living, but again refused all forms of physical
(Tr. 167-168.)

Because Plaintiff continued to complain of pain in his lower
back, Dr. Franz sent him for an MRI of the lumbar spine.

Although

these test results do not appear in the medical record, Dr. Franz's
notes from April 20, 2007, ref
at L4-L5.

ct a new diagnosis of a disc bulge

His bilateral hand pain, however, had improved since a

change in medications.

Dr.

Franz again stated Mr. Goodwin would
13

benefit from physical therapy three times a week for four weeks for
his

lumbar

spine

and

shoulder,

but

Plaintiff

refused.

(Tr.

161-165. )
In December 2008, Mr. Goodwin consulted Dr. Franz because he
was having trouble sleeping (he suspected this was due to being out
of medications)

and needed Dr.

Franz to complete a form for the

Pennsylvania Department of Public Welfare which would allow him to
receive Medicaid benefits.

He was able to perform most activities

of daily living, albeit with difficulty, and stated that the pain
in his back,
In

legs, and arms had gotten worse.

January 2009,

Mr.

Goodwin again

(Tr. 293-298.)

complained of

bilateral pain in his knees, shoulders and elbows.

constant

He had lost his

medical insurance when he quit working the previous August and was
therefore not in physical therapy.

(Tr. 290-292.)

Like Dr. Means, Dr. Franz was asked to complete a Physician's
Report in March 2010.

He noted he had treated Mr.

Goodwin for

numerous complaints over the years, including swollen, stiff, sore
hands, pain in his wrists, elbows and shoulders, and lower back pain.
He noted there had been "no neurological deficits" identified on any
examination,

although there were instances of subjective pain on

palpitation.

Although Mr. Goodwin had been treated with numerous

medications for pain, he had "refused all physical therapy."

Dr.

Franz declined to give a prognosis since he had not seen Mr. Goodwin
14

since January 9, 2009, but did state that
require medications

aintiff would likely

rheumatoid arthritis indefinitely.

Dr.

Franz also declined to indicate if he believed Mr. Goodwin would have
any permanent disabil

y or if he believed

aintiff's impairments

satisfied any Social Security Listing, commenting, "I cannot in good
th feel comfortable completing this [response] since patient has
not been seen in over 1 year.H
3.

Dr.

Ni vedi tha

(Tr. 285-287.)

Mohan:

By

the most extensive

medical records are those of Dr. Mohan, a rheumatologist who treated
Plaintiff at the UPMC Arthritis and Autoimmunity Center between
August 2007 and June 2009.

On August 29, 2007, Dr. Mohan recorded

an extensive medical history for Mr. Goodwin in which she noted his
carpel tunnel surgery in 2005 10 and a two-year history of pain and
swelling in his

ght elbow, shoulders, hips and knees.

He had

puffiness with warmth on back of hands and a number of problems with
his feet which were treated wi th steroid inj ections and shoe inserts.
After he was diagnosed with RA in December 2006, he began treatment
wi th prednisone which did not help his symptoms until it was increased
to 10 mg.

Even with this dosage, he still had about three hours of

morning stiffness.

Mr. Goodwin stated his low back pain had begun

10
Plaintiff later stated in a report to the SSA that that his carpal tunnel
problems had returned by mid-November 2008 (Tr. 148), but the Court has
been unable to pinpoint any medical evidence to support this claim.

15

approximately three years before and was exacerbated by mechanical
stress such as lifting and carrying.

(Tr.223.)

Dr. Mohan did not

have access to previous lab resul ts or x-rays which made the diagnosis
of Plaintiff's underlying condition "somewhat difficult.
physical examination showed a normal

a comp

fI

However,

of movement

both upper and lower extremities, no synovitis to palpation, and
no rheumatoid nodules.

She recommended that he continue on the same

drugs (prednisone, Vicodin for pain and Naprosyn), have x-rays of
his hands, lumbar spine, and sacroiliac joints, and have blood tests
to confirm the diagnosis of rheumatoid arthritis.

(Tr. 223-226.)

At a follow up appointment a few days later, Dr. Mohan confirmed the
diagnosis

of

RA

and

began

treatment

with

methotrexate.

(Tr.

216-222.)
Dr.

Mohan next saw Mr.

direction,

Plaintiff

had

Goodwin on January 2,
stopped

taking

2008.

prednisone

At her
and

was

tolerating the methotrexate well except for fatigue and queasiness
on the day he took it.

He had not noticed any significant improvement

in

symptoms

his

diffuse

pain

and

non-restorative

sleep.

His

shoulder pain was worse when he used his arms for a long time and
he had increased pain in his left arm because he was using it to
compensate

r the right.

He again demonstrated a normal range of

motion in his upper and lower extremities, although he experienced
pain in his shoulders on abduction.
16

Dr. Mohan concluded that his

rheumatoid arthritis appeared to be "clinically insignificant,"
despi te the posi ti ve blood tests, and that his pains were consistent
with a chronic pain syndrome such as fibromyalgia, but he did not
satisfy the tender-point criteria to confirm such a diagnosis.
shoulder

pain

syndrome.

was

mechanical

and

consistent

with

rotator

His
cuff

She adjusted his medications slightly and directed him

to have an MRI of his right shoulder.
On July 2,

2008,

(Tr. 211-215.)

Plaintiff reported a

lack of

significant

improvement in his diffuse pain symptoms and non-restorative sleep.
Although his shoulder pain was worse only when he was using his arms
a lot, he had not followed-up on the recommended physical therapy
and had not had the moni toring lab tests done.

He did notice episodes

of swelling and pain in his wrists and feet intermittently which were
ameliorated by Naprosyn.
because of those symptoms.

He had difficulty working a four-day week
Dr. Mohan adjusted his medications and

warned Mr. Goodwin that if he did not have the necessary lab tests,
she would be unable to prescribe methotrexate in the future; she again
recommended

physical

therapy

for

his

shoulder

problem.

(Tr.

205-210.)
Although Dr. Mohan had asked Plaintiff to return within five
months, her next office notes are from a year later, in June 2009.
He was complaining of increased pain in his left knee, a nodule which
had developed over his left elbow, diffuse pain symptoms and poor
17

sleep.

He was not taking the prescribed medications and had not had

regular lab tests, perhaps due to the lack of medical insurance.

His

medical examination was essentially unchanged from the previous
exam, except for swelling in his left knee which Dr. Mohan attributed
to a sprain and treated wi th a steroid inj ection.
considered to be "clinically insignificant."

Again, his RA was

Dr. Mohan suggested

that he participate in quadriceps strengthening exercises for his
knees, quit smoking because of the effects on his lungs while taking
methotrexate, and follow-up in six months.

(Tr. 262-267.)

Unlike

Drs. Means and Franz, Dr. Mohan did not provide a Physician's Report.
4.
consulted

At Dr. Means' request, Plaintiff

Dr. David E. Seaman:

with

Dr.

Seaman

at

the

Arthritis

and

Associates of Southwestern Pennsylvania on March

Rheumatology

31,

2009.

He

stated to Dr. Seaman that after being diagnosed with RA in 2007, he
had been on methotrexate and naproxen but did not believe either drug
was of much benefit.
with significant
headaches.

He complained of diffuse arthralgia or myalgia
tigue, unrefreshed sleep and chronic recurrent

An MRI of the right shoulder in 2007 revealed a rotator

cuff tear but he refused surgery despite chronic pain.
On

physical

examination,

Dr.

Seaman

noted multiple muscle

tender points, but no objective synovitis throughout the joints of
his hands, wrists, elbows or shoulders.

aintiff had mild diffuse

lumbar tenderness and no point tenderness in the spine.
18

The joints

of his s

liac were non-tender and his hips had a full range of

motion without pain.

His knees showed minimal crepitus and his

ankles and feet were not inflamed.
Dr.

Seaman's

assessment

was

of

rheumatoid

arthritis

with

"little inflammatory disease activity currently" and a suspicion
that most of his current symptoms were related to fibromyalgia.
did not, however, offer a diagnosis of fibromyalgia.)

(He

Dr. Seaman

suggested that Mr. Goodwin undergo a number of blood tests through
his primary care physician; have x-rays taken of his shoulders and
hips; taper off methotrexate over a six-week period because "it has
not

helpful and he refuses to stop drinking alcohol;"l1 continue

wi th Naprosyn and start taking Feldene in place of methotrexate; and
consult with a chronic pain clinic.

evidence to support total or permanent disability from a

object

rheumatologic standpoint."

requested

evaluation

to

shoulder pain,
pain,

(Tr. 331332.)

Functional capacity evaluation:

5.
Means

Dr. Seaman noted, "There is no

that

Plaintiff

determine

undergo

limitations

rheumatoid arthritis,

a

In March 2010, Dr.
functional

imposed

by

his

capacity
bilateral

cervical and lumbar spinal

and degenerative disc disease of the lumbar spine.

(Tr.

Among the numerous severe side effects of methotrexate is liver damage,
lly when it is taken for a long time.
Contemporaneous (or even
previous) consumption of large amounts of alcohol while taking methotrexate
may lead to liver damage.
See "Methotrexate" entry at Medline Plus.
11

19

At the interview, Mr. Goodwin reported a pain level of

358-361.}

6 out of 10, with 10 representing the worst pain associated with his
problem since the onset.

He demonstrated frequent position changes

after sitting approximately 15 to 20 minutes.

After Plaintiff

completed a number of objective physical tests to determine his
tolerance for typical work-like activities (see Tr. 359-360), Frank
Kula, the physical therapist administering the evaluation, concluded
that he was "presently functioning in the medium work level," his
body mechanics were average, but his overall endurance and aerobic
capaci ty were poor.

Mr. Kula further noted that al though Mr. Goodwin

appeared to be working to maximum potential and cooperated with "fair
enthusiasm," he exhibited self-limiting pain behaviors during some
tests.

The therapist found that Mr. Goodwin was a "good candidate

for a comprehensive formal physical therapy program for 4-6 weeks
to address

all

of

the

capacity evaluation."

D.

Analysis of

deficits

12

identified

in this

functional

(Tr. 361.)
aintiff's Arguments

Because Plaintiff identifies several issues which overlap
in both evidence and analysis, we have combined some arguments and

12

The tests identified Plaintiff's major limiting factors as decreased
endurance, general deconditioning with associated posture and muscle
imbalances, decreased lifting capacity secondary to self-limiting pain
behavior, decreased upper and lower extremity range of motion, decreased
cervical and lumbar range of motion, decreased squatting, and decreased
repetitive functional material handling.
(Tr. 361.)

20

address them simultaneously.
The

1.

ALJ

erred

by

ecting

the

opinions

of

Plaintiff's trea ting physicians (Franz, Mohan and Means) and relying
instead on the opinion of the non-examining sta te agency physician.

Social Security regulations identify three categories of medical
sources:

treating, non-treating, and non-examining.

psychologists,

and

other

acceptable

medical

Physicians,

sources

who

have

provided the claimant with medical treatment or evaluation and who
have had an "ongoing treatment relationship" wi th him are considered
treating sources.

A non-treating source is one who has examined the

claimant but does not have an ongoing treatment relationship with
him, for example, a consultative examiner who is not also a treating
source.

Finally,

non-examining sources,

including state agency

medical consul tants, are those whose assessments are premised solely
on a review of medical records.

20 C.F.R. § 404.1502.

The regulations also carefully set out the manner in which
medical opinions are to be evaluated.

20 C.F.R. § 404.1527(d).

opinion received is considered.

general, every medi

In

Unless a

treating physician's opinion is given controlling weight, the ALJ
will consider (1) the examining relationship (more weight given to
the

opinion

of

an

examining

non-examining source);

source

than

to

the

opinion

of

a

(2) the treatment relationship (more weight

gi ven to opinions of treating sources);

21

(3)

the

length of the

treatment relationship and the frequency of examination (more weight
given to the opinion of a treating source who has treated the claimant
for a long time on a frequent basis); and (4) the nature and extent
of the treatment relationship (more weight given to the opinions of
specialist

than

to

generalist

treating

sources.)

20

C.F.R.

§

404.1527 (d); see also Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.
1993)

(it is well-established that an ALJ "must give greater weight

to the findings of a treating physician than to the findings of a
physician who has examined the claimant only once or not at all.")
The opinion of a treating source is given controlling weight on
questions

concerning the nature and severity of the claimant's

impairment(s) when the conclusion is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent
record."

with the other substantial evidence

in

[the]

case

20 C.F.R. § 404.1527(d) (2).

Plaintiff argues that the ALJ erred by giving undue weight to
Dr. Seaman's conclusions, by giving substantial weight to the opinion

of Dr. Nghia Van Tran, a non-examining state agency physician, and
by failing to give sufficient weight to the opinions of Drs. Franz,
Mohan,

and Means who concluded,

according to Plaintiff,

that he

cannot perform even sedentary work.

In particular, the ALJ rej ected

the

physicians

opinions

explanation.

of

his

(Plf.'s

treating
Brief

at

16.)

22

without

A review

of

adequate

the medical

evidence shows Plaintiff's argument on this point is unavailing.
rst,

with regard to the opinions of Plaintiff's treating

physicians, the evidence shows that Dr. Mohan repeatedly stated that
Plaintiff had full range of motion in all major joints and that his
RA

was

"clinically

insignificant"

and

well-controlled

medication (although he did continue to have pain.)
no opinion regarding his ability to work.
between

December

2008

and

November

2009,

Dr.

with

She expressed

Franz opined that

Plaintiff

would

be

temporarily disabled due to his RA, but he later declined to give
any opinion about long-term disability or the degree of impairment.
Dr. Franz and Dr. Mohan noted that Plaintiff refused to participate
in physical therapy, was sometimes lax about having timely laboratory
tests,

and

recommended.

iled

to

stop

smoking

and

drinking

alcohol

as

In sum, the opinions of Drs. Franz and Mohan do not

support Plaintiff's argument that they considered him incapable of
light or sedentary work.
As for Dr. Means' opinion that Plaintiff was 100% disabled, the
ALJ pointed out that this statement was not "supported by the overall
medical evidence of record."

(Tr. 21.)

It is well-established that

an ALJ may reject a treating physician's opinion which is brief and
conclusory with little in the way of clinical findings to support
it, providing he adequately explains the basis for the rejection.
Mason, 994 F.2d at 1067; Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.
23

1994)

("The Secretary may properly accept some parts of the medical

evidence and reject other parts,

but

[he]

must consider all the

evidence and give some reason for discounting
rejects.")
PI

Moreover,

to the extent Dr.

evidence

[he]

Means did conclude that

ntiff would be totally disabled or perform any type of work, such

opinions are not entitled to special significance because they are
non-medical opinions on a subj ect reserved for the Commissioner.
C.F.R.
96-5p,

404.1527(e);

§

"Medical

see also Soci

Source

Opinions

on

Security Ruling
Issues

Reserved

20

("SSR")
to

13

the

Commissioner," and Smith v. Comm'r of Social Sec., No. 05-3533, 2006
U.S.

App.

LEXIS 10896,

*15

(3d Cir.

May 1,

2006).

While

such

opinions, even from a treating source, are not to be ignored, they
are not entitled to controlling weight.

Summerville v. Astrue, CA

No. 07-842, 2008 U.S. Dist. LEXIS 38412, *30-*31

(W.O. Pa. May 8,

2008) .
Similarly, although Plaintiff argues that Dr. Seaman's opinion
is entitled to less weight because he was only a one-time consul ting
physician, we conclude the ALJ did not err in giving "great weight"

"Social Security Rul ings are agency rulings published 'under the
authority of the Commissioner of Social Security' and 'are binding on all
components of the Social Security Administration.'" Sykes, 228 F.3d at
271, citing 20 C.F.R. § 402.35(b) (1); Williams v. Barnhart, No. 05-5491,
2006 U.S. App. LEXIS 30785, * 8 (3d Cir. Dec. 13, 2006).
"Rulings do not
have the force and effect of the law or regulations but are to be relied
upon as precedents in determining other cases where the facts are basically
the same." Sykes, id., quoting Heckler v. Edwards, 465 U.S. 870, 873 n.3
(1984).
13

24

to

his

statement

that

there

was

no

objective

evidence

from

a

rhematologic standpoint that Plaintiff was totally or permanently
disabled.

The ALJ specifically stated the reason she arrived at this

conclusion, namely that the opinion came from an examining specialist
in rheumatology.
weight

given

to

(Tr. 19.)
the

See 20 C.F.R.

opinions

of

404.1527(d) (4)

§

specialist

than

to

(more

generalist

treating sources.)
Mr. Goodwin is correct that Dr. Tran completed his evaluation
in November 2008, based on Plaintiff's medical file at that time,
some 17 months before the hearing and the ALJ's decision.
240-246. )

In his evaluation,

Dr. Tran concluded PI

(Tr.

ntiff could

occasionally lift and carry up to 20 pounds, and frequently Ii

and

carry up to ten pounds; could stand and/or walk for about six hours
in an 8-hour workday; could sit (with normal breaks) for the same
time period; and had unlimited ability to use hand and foot controls
to push or pull.

All postural functions 14 could be performed on an

occasional basis, meaning from very seldom to up to one-third of an
8-hour workday.
no

visual

or

limitations.
summa

Plaintiff had no limitations in using his hands,
communications

limitations,

and

no

environmental

In the narrative portion of his report,

Dr.

Tran

zed the findings from Dr. Mohan's examination on July 2, 2008,

Postural functions include climbing ramps, stairs, ladders, ropes or
scaffolds, balancing, stooping, kneeling, crouching or crawling.
(Tr.
242. )
25

14

and concluded that Plaintiff's diagnosed rheumatoid arthritis was
stable and well controlled with treatment. On the other hand, Mr.
Goodwin had described "significantly limited" daily activities, a
statement Dr. Tran found to be only partially consistent with the
limitations indicated by other evidence in the case file.
Plaintiff is incorrect, however, in arguing that the ALJ relied
solely on Dr. Tran's opinion or erred by giving it substantial weight
in reaching her conclusion as to his RFC.

15

f.'s Brief at 16.)

Based on Dr. Tran's opinion, Plaintiff was capable of light work with
only

occasional

postural

environmental limitations.
record,

limitations

and

no

manipulative

or

The ALJ, however, relying on the entire

including the Vocational Expert's testimony and that of

Plaintiff himself, concluded Mr. Goodwin had addi tional restrictions
which prevented him from working on ladders,
performing overhead li

ropes or scaffolds,

ing due to his rotator cuff problem, and

being exposed to extremes of heat, cold and workplace hazards.
short,

the

limi tat ions

ALJ

incorporated

Dr.

Tran had not

in

her

RFC

description

considered and did not

In

several

adopt his

conclusions without reservation.
Moreover, as the ALJ explicitly noted in her decision (Tr. 20),

15
The ALJ explained that she gave Dr. Tran's assessment substantial
weight because it "well-reasoned, supported by and consistent with the
longitudinal medical evidence of record, and made by a reviewing physician
with an understanding of the disability programs and their evidentiary
requirements."
(Tr. 21.)
We find no reason to dispute this explanation.

26

her limitation to light work was in direct contrast to a functional
capacity evaluation performed just a few days before the hearing

(see Tr.

358-361)

in which the therapist had concluded Plaintiff

could perform work at the medium exertion level, i.e., work which
required the ability to lift up to 50 pounds at a time and to stand
and/or walk six hours in an 8-hour workday.

20 C. F. R.

§

404.1567 (b) .

We recognize that a physical therapist

such as Mr.

Kula is not

considered an "acceptable medical source" whose opinion is ent
to great or controlling weight.

led

However, his opinion may provide

evidence to show the severity of the alleged impairment and how
affects the claimant's ability to work.

20 C.F.R.

§

404.1513(d).

Based on the ALJ' s analysis of the medical record and her clear
explanation of the weights she gave to each physician's opinion, we
are not persuaded by Plaintiff's arguments on this point.

2.

The ALJ erred by rejecting the opinion of Plaintiff's

psychologist, Dr. Lindsey Groves, and by failing to

nd that his

depression and anxiety were sufficiently severe to sa tisfy Listings
12.04 and 12.06 respecti vely.

On March 1, 2010, Dr. Groves provided

her conclusions regarding Plaintiff's mental impairments, based on
a single interview with Mr. Goodwin at the request of his counsel.
In a Physi
physical

an's Report,

impairments,

Dr. Groves first summarized Plaintiff's

and

noted that

he

had

stated during

the

interview that "I have a lot of stress [and] anger" when describing

27

his mental condition.
a

formal

mental

After reporting that Plaintiff had never had

health

diagnosis

nor

sought

any

mental

health

treatment, she offered the diagnoses of major depressive disorder,
recurrent,

moderate,

and panic

disorder

with

agoraphobia.

She

considered his prognosis poor unless he agreed to seek treatment for
his depression;
psychiat

he was

in "severe need"

st for medication management.

of psychotherapy and a
Dr. Groves concluded Mr.

Goodwin was 100% totally and permanently disabled, could not engage
in regular,
Securi ty
disorders.

sustained employment at the time,

Listings
(Tr.

for

affective

disorders

and met the Social

and

anxiety

related

344-346.)

In a mental impairment questionnaire, Dr. Groves noted that her
findings were based on "one initial assessment appointment" of 45
minutes duration.

In addition to the mental diagnoses above, she

indicated his current GAF score 16 was 55 and he evinced numerous signs

The Global Assessment of Functioning ("GAF") scale assesses how well an
individual can function according to psychological,
social,
and
occupational parameters, with the lowest scores assigned to individuals
who are unable care for themselves. Drejka v. Barnhart, CA No. 01 587,
2002 U.S. Dist. LEXIS 7802, *5, n.2 (D. Del. Apr. 18, 2002). A GAF score
between 51 and 60 reflects "moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty
in social [or] occupational . . . functioning (e.g., few friends, conflicts
with peers or co-workers)." See the on-line version of DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS, Multiaxial Assessment, American
Psychiatric Association (2002), at www.lexis.com. , last visi ted August 11,
2011. Neither Social Security regulations nor case law requires an ALJ
to determine a claimant's disability based solely on her GAF score. See
Ramos v. Barnhart, CA No. 06-1457, 2007 U.S. Dist. LEXIS 23561, *33-*34
(E.D. Pa. Mar. 30, 2007), and cases cited therein.
16

28

and symptoms of mental impairments including appetite, sleep and mood
disturbances,
retardation,

recurrent
difficulty

worthlessness,

isolation,

panic

attacks,

concentrating,

anhedonia,
and

psychomotor

feelings

hostility and irritability.

of

guilt,

His panic

attacks occurred "a few times a week" especially when he left home
or was out in public.

Moreover, his mental condition exacerbated

his pain and other physical symptoms.

Dr.

Groves concluded Mr.

Goodwin's impairment had lasted or could be expected to last at least
12 months.

She also estimated Plaintiff would be absent from work

more than three times a month due to his impairments or treatment
schedule and would not be able to work more than a few hours at a
time.

(Tr. 347-349.)
In the third part of her response, Dr. Groves indicated that

Mr. Goodwin demonstrated marked restrictions in his activities of
daily living and in maintaining social functioning,

had moderate

difficulties in maintain concentration, persistence or pace, and had
experienced three episodes of decompensation, each of an extended
duration.

However, he had good ability to follow work rules, relate

to co-workers,
abili ty

to

use judgment, and interact with supervisors;

deal

with

work

stress,

function

independently,

fair
and

maintain concentration; and poor ability to deal with the public.
He had good to fair ability to understand, remember and carry out
instructions and to make personal and social adjustments.

29

(Tr.

344-354.}
The ALJ acknowledged Dr. Groves' opinions as summarized above.
(Tr. 13.)

She then explained,

this opinion rendered a er a one-time 45 minute
assessment is, by necessity, based largely on the
claimant's subjective allegations. As noted above, the
record contains no prior history of mental health
treatment and absolutely no evidence of the three episodes
of decompensation found by Dr. Groves.
Similarly, the
record contains no reports of weekly panic attacks as
alleged by the
aimant.
The undersigned notes that Dr.
Groves
rated the claimant's Global Assessment of
Functioning at 55, or moderate symptoms . . . . This finding
contradicts Dr. Groves' finding of marked limitations in
activities of daily living and social functioning.
The
undersigned gives little weight to this opinion as it is
inconsistent on its face and is not supported by any other
medical evidence of record.
(Tr. 13-14.)
Plaintiff argues this decision was erroneous because there is
no opinion from an acceptable medical source which contradicts Dr.
Groves'

conclusion that his conditions satisfied Listings 12.04,

12.06, and the

(D) criteria of

sting 14.09.

Plaintiff further

contends Judge Cannon impermissibly substituted her own opinions for
those of his examining clinical psychologist and made speculative
inferences from the medical evidence which were beyond the expertise
of an administrative law judge.

In short, the ALJ erred by rejecting

his diagnoses of depression and anxiety simply because there was no
prior evidence of psychiatric treatment.

30

(Plf.'s Brief at 13-16.)

Taken to its

logical extreme,

this

argument would allow a

claimant to show he was disabled from any number
impairments

confirmed

by

a

single

"newly discovered"

acceptable

medical

source.

However, an ALJ is permitted to reject the opinion of even a treating
physician (which Dr. Groves clearly was not) where there is little
obj ecti ve

evidence

in

the

record

adequately explains the basis
Adorno,

supra.

to

support

it,

the rej ection.

providing she
See Mason and

Judge Cannon clearly stated the reasons for her

rejection of Dr. Groves' opinions in the paragraph quoted above and
the Court finds no reason to question her reasoning.

Our own

ew

of the medical record leads to the same result.
Dr. Groves stated that her conclusions and diagnoses were based
in part on a review of the medical evidence.

(Tr. 344.)

The Court's

review of the entire record reflects an almost complete absence of
any

evidence

of

mental

impairments.

Plaintiff

disabili ty benefi ts due to mental impairments,

did

not

seek

identified no such

impairments in the report of his activities of daily living or other
documents submitted to the SSA, and, most importantly, there is only
miniscule evidence of any concerns about his mental condition
medical records.

The notes of Drs.

the

Franz and Means include no

reference to such conditions, but Dr. Mohan's records address this
issue in a minor way.

Each report of an office visit with Dr. Mohan

includes a brief "functional screening" questionnaire which includes
31

the question "Have you experienced any emotional difficulties that
have affected your ability to complete your activities of daily
living?" or "During the past 4 weeks,
emotional problems keep you
other

daily

how much did personal or

doing your usual work, school or

acti vi ties?"

Mr.

Goodwin's

responses

to

these

stions varied from "not at all" to "somewhat," and "yes."
Tr. 222, 217, 212, 296, and 266.)

However, nothing in Dr. Mohan's

notes reflects any concern about his mental condition during the
iod August 2007 through June 2009.

And, as Plaintiff testifi

had not received any mental health treatment and he attributed
none of his limitations to his mental conditions.
Moreover,

the

Court

views

considerable skepticism, as did t

Dr.
ALJ.

Groves'

conclusions

As a single example of

apparent unfamiliarity with the criteria for meeting either
12.04 ( depressive disorders) or

we

note

her

conclusion

that

with
r

sting

sting 12.06 (affective disorders),
Mr.

Goodwin

had experienced t

sodes of decompensation, each of extended duration.

(Tr.350.)

"episodes of decompensation" as

Social Security regulations de

exacerbations or temporary increases in symptoms or signs
accompanied by a loss
adaptive functioning,
as
manifested by difficulties in
rforming activities of
daily living,
maintaining social relationships,
or
maintaining
concentration,
rsistence,
or
pace.
Episodes of decompensation may be demonstrated by an
exacerbation in symptoms or signs that would ordinarily
require increased treatment or a less stressful situation
(or a combination of the two).
[They] may be inferred from

32

medical
records
showing significant
alteration
in
medication; or documentation of the need
a more
structured
psychological
support
system
(e. g. ,
hospitalizations, placement in a halfway house or a highly
structured and directing household); or other relevant
information in the record about the existence, severity,
and duration of the episode.
See Listing 12.00 (C) (4).

The phrase "repeated episodes of decompensation" re

rs to

"three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks."

Id.

As the ALJ noted, Dr. Groves provided no explanation of why she
concluded Mr. Goodwin has experienced three such episodes.
significant error casts doubt on her entire report,

This

particularly

since she conceded her opinions were based on a single 45-minute
interview with Mr. Goodwin.

17

More importantly, the medical record

for the period 2007 through late 2009 contains nothing to support
Dr. Groves' statements.
indicated,

As the Third Circuit Court of Appeals has

the lack of medical evidence to support a plaintiff's

claims is "very strong evidence" that he was not disabled.

See Lane

v. Comm'r of Soc. Sec., No. 03-3367, 2004 U.S. App. LEXIS 10948, *14
Dr. Groves makes a number of other curious connections in her reports.
For instance, after indicating Mr. Goodwin had fair to good abili ty to make
personal and social
ustments (maintain personal appearance, behave in
an emotionally stable manner, etc.), she indicated that the medical and
clinical findings supporting this assessment were that Mr. Goodwin
"physically cannot bend or picking [sic] things up," and he "was unable
to sit or stand long [because] his limbs go numb and swell up."
(Tr.353.)
The relationship between the assessment and the purported medical findings
to support that assessment escapes the Court.
17

33

(3d Cir. June 3, 2004),
1553 (2d Cir. 1983)

ting Dumas v. Schweiker, 712 F.2d 1545,

(the Commissioner "is entitled to rely not only

on what the record says, but also on what it does not say.")
We

conclude the ALJ did not

err

in

rejecting

Dr.

Groves'

conclusions for lack of substantiating evidence in the record and
by finding that

Plaintiff's mental

limitations

did not

satisfy

Listing 12.04 or 12.06.
The ALJ erred at Step 3

3.
that

aintiff's rheumat

teria

the analysis by finding

d arthritis did not satisfy or equal the

aintiff argues that based on the

Listing 14.09.

medical evidence, including Dr. Groves' conclusions regarding his
functional

limitations,
(Plf.'s

14.09(0) .

he

Brief

satisfies
at

14.)

the

criteria

This

of

subsection

sting
requires

documented evidence of a form of inflammatory arthritis (including
rheumatoid arthritis) with
Repeated manifestations of inflammatory arthritis with at
least two
the constitutional symptoms or signs (severe
fatigue,
r, malaise, or involuntary weight loss) and
one of the following at the marked level:
daily living.

1.

Limitation of activities

2.

Limitation in maintaining social functioning.

3.

Limitation in completing tasks in a timely
manner due to deficiencies in concentration,
persistence or pace.

Listing 14.09{D).

34

Even if we were to accept Plaintiff's argument that Dr. Groves
found that he had marked limitations in all three of the categories
identified in Listing 14.09 (D)
previous section),

there

Goodwin

enced

has

involuntary weight loss.
mention any of t

is

(which we do not, as discussed in the
no medical evidence

severe

igue,

indicating Mr.

fever,

malaise,

or

In fact, Dr. Mohan's office notes do not

se symptoms and s

repeatedly commented that his

rheumatoid arthritis "appears to be clinically insignificant," an
opinion shared by rheumatology specialist Dr. Seaman who commented
in March 2009

t there was "little inflammatory disease activity

currently."
It is true Plaintiff was diagnosed and treated

rheumatoid

arthritis but a diagnosis alone is not sufficient; the claimant must
show that the condition is sufficiently severe that it meets all the
teria of a

sting to be considered presumptively disabled at Step
493 U.S.

Three.

1, 530 (1990)

("To show that

[an] impairment matches a listing, it must meet all of
medical crite

a.

specified

An impairment that manifests only some of those

teria, no matter how severely, does not qualify.")
failed to point to evidence of severe fatigue,

Plaintiff has

fever, malaise, or

involuntary weight loss, the initial conditions which must be met
in order to

satisfy Listing

14.09(D).

His motion

judgment based on this claim is therefore denied.

35

for

summary

4.

The ALJ

by not including all of Plaintiff's

severe and non-severe impairments in the hypothetical question to
the Vocational Expert.

At the hearing,

the ALJ first asked the

Vocational Expert, Mr. Bell:
If you take a hypothetical person of the claimant's age,
education, background and work experience; who can do a
range of medium work; . . . no frequent overhead lifting;
needs to avoid hazards such as dangerous moving machinery
and unprotected heights; should avoid extremes of heat and
cold; no climbing of ropes, ladders, scaffolds or anything
of that nature, could that hypothetical person perform the
claimant's prior relevant work?
(Tr. 47.)
Mr. Bell replied that the claimant could not return to his prior
heavy work as a construction carpenter.
limitations were added, t

When occasional posture

VE testified that a such a person would

be best suited for light or sedentary work.

(Id. )

The ALJ then asked:
If you add entry-level, unskilled, routine and repetitive
work, with things as opposed to people and no more than
occasional contact with the general public, would that
change the jobs that you've given me?
And if
instructions needed to be written down, would that change
any of the jobs that you've given me?
(Tr. 48.)
The VE responded that the list of jobs he had provided would
not

change

with

those

I

tations.

The

ALJ

followed

up

with

questions concerning how much time off task and many absences per
month would be tolerated by an employer of an entry level employee.

36

(Tr. 48.)

Plaintiff's counsel asked if any of the identified jobs

required outside work (to which the answer was no), and whether they
required "a lot of concentration and attention," to which the VE
responded, "You would have to pay attention to do the job."
49.)

(Tr.

Counsel also asked if the individual would have to function

independently, to which the VE responded that he would.

Id.)

We agree with Plaintiff that the hypothetical questions posed
to the vocational expert should include reference to claimant's
non-severe as well as severe limitations which are supported by the
medical evidence.
Cir. 1987).

See Chrupcala v. Heckler, 829 F.3d 1269, 1276 (3d

Plaintiff does not identify in his brief the non-severe

conditions which precluded him from engaging in light or sedentary
work, but merely argues that the ALJ "omi tted many of the Plaintiff's
nonsevere impairments in her hypothetical question."

(Tr.

19.)

However, as the Court of Appeals has explicitly stated,
[w]e do not require an ALJ to submit to the vocational
expert every impairment alleged by a claimant.
Instead,
. . . the hypotheticals posed must accurately portray the
claimant's impairments and . . . the expert must be given
an opportunity to evaluate those impairments as contained
in the record . . . . Fairly understood, such references to
all impairments encompass only those that are medically
established . . . . And that in turn means that the ALJ must
accurately convey to the vocational expert all of a
claimant's credibly established limitations.
Rutherford, 399 F.3d at 554 (internal
omitted; emphasis in original.)
Drawing

on

the

entire

medical
37

quotations

record,

the

and citations

only

medical

conditions the Court can identify which the ALJ appears to have
omitted

from

her

hypothetical

questions

are

Plaintiff's

mild

diverticulitis, kidney cysts, a small mass on his left adrenal gland,
and intermittent pain in his hands, knees, and lower back, and there
is

no

evidence

limitations.

these

resulted

As noted above,

in

any

credibly

established

although Plaintiff complained his

carpal tunnel syndrome had returned 1B and he had two bulging disks
in his lumbar region, there is no medical evidence of recent treatment
for carpal tunnel problems and the objective functional capacity
evaluation performed less than a month prior to the hearing reflected
no limitations on his ability to lift and carry almost 50 pounds,
which is inconsistent with debilitating pain in either his hands or
lower back.

His inability to complete a material handling task was

not due to problems with his hands or wrists but rather because he
was unable to stand for a sufficient time due to increased low back
and leg pain.

(Tr. 361.)

Finally, a careful reading of the medical

record reveals no limitations imposed by Plaintiff's physicians
which were not accounted for in the hypothetical questions.

In fact,

the ALJ incorporated several limitations which were never suggested

18
Plaintiff testified that the surgery for carpal tunnel syndrome in both
hands had "helped a lotH but that he now had a 50% weaker grip than in the
past.
(Tr. 43.)
Reports to Dr. Franz about his ability to perform
acti vi ties requiring the abili ty to grasp or perform fine motor acti vi ties
such as buttoning clothes or brushing his hair (see, e.g., Tr. 163) reflect
no significant impairments in this regard.

38

by any physician,

e. g.,

avoiding moving machinery,

unprotected

heights, and extremes of heat and cold, or climbing, but rather came
from Plaintiff's own descriptions of his limitations.

(See, e.g.,

his testimony at Tr. 33 that "I'm afraid of an accident or something.
I'm worried about myself being on a scaffold or using tools, or, or
driving, even.")

The question posed by Plaintiff's counsel took

into account another subjective limitation, that is, Mr. Goodwin's
inabili ty to work outdoors due to adverse effects from sunlight when
he is taking methotrexate (see Tr. 37, 358), but all the jobs proposed
by the VE were performed indoors.
We find no reason to reverse the decision to deny benefits due
to any omissions of severe or non-severe limitations from the ALJ's
hypothetical questions.
5.

The VE's opinion tha t the Plain tiff can do al terna te

light and sedentary work is not based upon substantial evidence.

This argument is never developed as such in Plaintiff's brief.
Plaintiff does argue that the medical reports of Drs. Means, Franz,
Groves, and Mohan show he is incapable of even sedentary work.
19.)

(Tr.

However, Mr. Goodwin fails to point to specific evidence in

the medical records which would support this argument.
According to Social Security regulations,
Light work involves lifting no more than 20 pounds at a
time wi th frequent lifting or carrying of obj ects weighing
up to 10 pounds. Even though the weight lifted may be very
39

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, [the claimant] must have
the ability to do substantially all of these activities.
20 C.F.R. §§ 404.1567(b) and 416.967(b).
A person who is able to do light work is also assumed to be able
to do sedentary work unless there are limiting factors such as loss
of fine dexterity or the inability to sit for long periods of time.
SSR 83-10.

The term "sedentary" describes work which requires

lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files,
Jobs

are

sedentary

even

if

walking

ledgers and small tools.

and

occasionally and other criteria are met.

standing

are

required

20 C.F.R. § 404.1567.

The Court's review of the record discloses no comments by any
physician from which one can infer that Plaintiff cannot perform
light work with the further limitations described by the ALJ.

That

is, although physicians noted at various times Plaintiff's diagnoses
of rheumatoid arthri tis, carpal tunnel syndrome, and lower back pain
due to bulging disks at L-4 and L_5,19 none of their contemporaneous

19
As the ALJ noted (see Tr. 13), there are references to bulging discs
and degenerative disc disease in the medical record (e.g., in Dr. Franz's
notes of April 20, 2007, Tr. 161-165), but there is no objective medical
evidence such as x-rays or an MRI to support this finding.

40

office notes indicate that these in any way resulted in an inability
to work.
There are two exceptions to this conclusion.
Physician's Report completed by Dr. Means

First,

in the

(summarized in Section

IV.C.1 above), he indicated Mr. Goodwin would be 100% permanently
disabled and could not engage in employment "on a regular, sustained,
competitive and productive basis."

In support of his conclusions,

he explicitly referred to the functional capacity evaluation which
had

been

355-357.)

conducted
Contrary

at

Keystone

Rehabilitation

to

supporting

Dr.

Mean's

Systems.
opinion

that

(Tr.
Mr.

Goodwin was disabled, however, this evaluation concluded that all
of Mr. Goodwin's physical limitations could significantly improve
with a 4- to 6-week physical therapy program.

(Tr. 361.)

Moreover,

the test results showed that despite those deficits, Plaintiff could
still function at the medium work level.

Dr. Means' conclusions in

his Physician's Report are not supported by or consistent with the
opinions of Plaintiff's other physicians and the objective evidence.
The second exception is an employability assessment form Dr.
Franz completed for the Pennsylvan
on December 18, 2008.

(Tr. 251-253.)

Department of Public Welfare
Mr. Goodwin stated on the form

that he believed he could not work because he had "severe rheumatoid
arthritis and back pain from bulging disk.

I need Medicare [sic]

to [receive] my medicine and continue with my doctor visits for my
41

pain.

I can only sleep 1 to 2 [hours] at a time because of pain at

night

[which]

is severe."

(Tr.

251.)

Goodwin was temporarily disabled from

Dr.

Franz indicated Mr.

December 18,

2008,

until

November 30, 2009, due to rheumatoid arthritis and that Mr. Goodwin
needed medications

pain, insomnia, and a limited range of motion.

This form indicates,

however,

that it is to be completed for an

applicant "who requires medication that allows the person to be
employable or continue with employment."

(Tr. 253.)

This would

seem to imply that Dr. Franz believed that with regular medication
for his conditions, Mr. Goodwin would be able to work, not that he
was completely disabled.
Furthermore, no comparable form appears in the record for the
pe

od after November 30, 2009.

Even if there had been such evidence

of on-going disability from Dr. Franz, disability for the purpose
of receiving state welfare benefits is irrelevant to the decision
of the Social Security Administration.
must

While such determinations

taken into consideration, decisions by another government

agency regarding disability are not binding on the Commissioner.
See Halapia v. Astrue, CA No. 07-72J, 2008 U.S. Dist. LEXIS 50311,
*9 (W.O. Pa. June 30, 2008),

ting20C.F.R. §§404.1504and416.904;

see also the ALJ's decision at Tr. 18, discussing this point.

42

We conclude Plaintiff has

failed to come

forward with any

evidence which would refute the VE's testimony that he is capable
of performing a limited range light or sedentary work.
6.

The ALJ erred by failing to properly evaluate the

effects of Plaintiff's rheumatoid arthritis and chronic pain in
making her RFC assessment:

It is unclear from Plaintiff's brief

exactly what he means by failing to "properly evaluate the effects"
of his physical conditions.

The ALJ's RFC assessment did in fact

take into account Plaintiff's inability to lift and carry more than
20

pounds,

eliminated

numerous

postural

involve use of the upper right body

movements

which

would

(recognizing the effects of

Plaintiff's torn rotator cuff), and required work in environments
wi thout

temperature

extremes.

medical

evidence

support

to

Al though
Plaintiff's

there

was

claims

of

no

reliable

"stress

and

depression," she also limited him to work which was unskilled, entry
level, routine, repetitive, and with few inter-personal contacts.
As Plaintiff points out, Social Security regulations establish
a two-part process for eval uating pain and other subj ecti ve symptoms.
First, the ALJ must determine whether there is objective evidence
of a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged.

Second, she must evaluate

the intensity and persistence of the subjective symptoms and the
extent to which they affect the claimant's ability to work.
43

20

C.F.R. § 416.929;
Disability Claims:
Statements,"

see also SSR 96-7p,

"Evaluation of Symptoms in

Assessing the Credibility of an Individual's

requiring

the

ALJ

to

consider

both

the

objective

evidence of record and the claimant's subjective testimony.
The weight assigned to a claimant's subjective symptoms depends
on the objective medical evidence in the record which could support
such claims.

An ALJ must "give serious consideration to a claimant 1 s

subjective complaints of pain, even where those complaints are not
supported by objective evidence."

Mason, 994 F.2d at 1067, citing

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
claimant provides medical

But when the

dence supporting his complaints of

pain, the "complaints should then be given great weight and may not
be disregarded

unless

there

exists

contrary medical

evidence."

Mason, id. at 1067-1068; Witmer v. Barnhart, CA No. 01-3061, 2002
U.S. Dist. LEXIS 5559, *10-*11 (E.D. Pa. Mar. 28, 2002), citing Smith
v. Califano, 637 F.2d 968,971 (3d Cir. 1981).

Even if alleged pain

is more severe or persistent than would be expected, the ALJ must
consider all evidence relevant to subjective pain.

Sykes, 228 F.3d

at 266 n.9.
While an ALJ may reject subjective testimony if she does not
find

credible, "the reasons for the credibility finding must be

grounded in the evidence and articulated in the de
decision."

nation or

Schaudeck, 181 F.3d at 433, quoting SSR 96-7p; see also

44

Schwartz v. Halter, 134 F. Supp.2d 640,654 (E.D. Pa. 2001) (The ALJ's
decision

"must

contain

specific

reasons

credibility, supported by the evidence in
be sufficiently speci
gave

to

weight"),

the

for

the

finding

on

case record, and must

c to make clear . . . the weight the adj udicator

individual's

statements

and

the

reasons

for

that

quoting SSR 96-7.

In considering subjective symptoms,

the ALJ is directed to

include factors such as the claimant's daily acti vi ties; the location,
duration,

frequency and intensity of symptoms; precipitating and

aggravating

factors i

the

type,

dosage,

effectiveness

and

side

effects of any medication; treatment other than medication for pain
relief; and any other measures the claimant uses to relieve pain or
other symptoms.

20 C.F.R. § 416.929(c) (4).

Contrary to Plaintiff's argument that the ALJ did not make
specific findings with regard to his subjective pain and failed to
follow Social Security Ruling 96-7p in her analysis of this issue
(see

Plf.' s

Brief at

16-18),

we

find

the ALJ's

discussion was

comprehensive and met the requirements of the cited Ruling.

She

correctly stated the requirements of SSR 96-7p in her decision (Tr.
16), then went on to summarize the medications Plaintiff takes and
the side effects thereof, e.g., nausea, the need to avoid sunlight,
and

fatigue

(id.);

the

extent

and

types

of

pain

id. );

other

treatments for pain such as injections for his torn rotator cuff (id.
45

at 16-17); and the activities of daily living he could and could not
perform since the onset of his alleged disability

id. at 17.)

She

also recognized Plaintiff's testimony on this subject and concluded
that although the medical record supported the conclusion that his
rheumatoid arthritis and torn rotator cuff could conceivably give
rise to his allegations of pain, she found Mr. Goodwin "not entirely
credib

as

to

consequently

the

did

nature

not

and

"fully

extent

accept

of

his

concerning his symptoms and limitations."

his

impairments"

subjective

and

statements

(Tr. 21.)

Al though the ALJ must give "great weight"

to a

claimant I s

testimony of subjective complaints, "he has the right, as the fact
finder,

to

rej ect partially,

or even enti

complaints if they are not found credible."
F. Supp.2d 475, 485

(E.D. Pa. 2001)

y,

such

subj ecti ve

Weber v. Massanari, 156

(internal citations omitted).

"Credibility determinations are the province of the ALJ, and should
only

be

disturbed

evidence."
LEXIS 15394,

on

Wilkes v.
*16

(D.

review

if

not

supported

Massanari,

CA 00-655-GMS,

Del.

28,

Sept.

2001),

by

substantial

2001 U.S.

Dist.

citing Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).
We conclude Judge Cannon's analysis of Plaintiff's subjective
complaints, including the effects of pain on his ability to perform
light or at a minimum sedentary work wi th the other rest

ctions she

identi

We further

ed,

satis

es the c

teria of Ruling 96-7p.

46

conclude that her reasoning is clearly and comprehensi vely explained
and

therefore

decline

to

accept

Plaintiff's

argument

that

the

decision should be reversed on these grounds.
The ALJ erred by failing to take into consideration

7.

ct that at the time of the hearing, Mr. Goodwin was within

the

As noted above,

months of his fiftieth birthday:

birthday was September 30, 1960.

Mr.

x

Goodwin's

He was therefore 47 years and 11

months old on August 1, 2008, the alleged onset date of his disabili ty
and 49

years and 6 months old on April 1, 2010, the date of the

hearing.

PI

ntiff

argues

that

applying the age categories

the ALJ erred by mechanically

the Medical-Vocational Guidelines

(informally referred to as the "grids") in determining he was not
igible for benefits.

Citing Lucas v. Barnhart, No. 05-3973, 2006

U.S. App. LEXIS 14487 (3d

r. June 12(2006), Kane v. Heckler, 776

F.3dl130 (3dCir.1985), and20C.F.R. §§404.1563(b) and416.963(b},
Plaintiff contends that in a "borderline" situation such as his, the
ALJ should have taken into account the fact that he was within six
months of reaching the next older category and found him disabled
according to Grid Rule 201.14.

(Plf.'s Brief at 19.)

Turning first to the regulations cited by Plaintiff, the grids
to which Mr. Goodwin re
P, Appendix 2.
disabili ty

rs appear in 20 C.F.R. Part 404, Subpart

The grids provide a set of rules for determining

based

on

a

claimant's
47

chronological

age,

education

(including literacy and the ability to communicate in English), and
the skill-level of previous work experience (including acquisition
of skills which are considered transferable to new types of work),
set out in a matrix based on each level of residual functional
capacity determined by the SSA, i.e., sedentary, light, and medium.
"Where

a

claimant's

qualifications

correspond

to

the

job

requirements identified by a rule, the grids direct a conclusion that
work exists that the claimant can perform."
Social Security regulations assume,

Sykes, 228 F.3d 262.

all other things being

equal, that a person's age is "an increasingly limiting factor" in
his ability to adjust to a new type of work, even if that work is
less physically strenuous or requires fewer skills than his previous
work.

20 C.F.R.

§404.1563(a).

Therefore,

the grids describe a

claimant in one of three categories based on age:
55 and over

an individual "of advanced age,"

50 through 54

an individual "approaching advanced age," and

18 through 49

a "younger" individual. 2o

20 C.F.R. § 404.1563(c)-(e).
Within this category, the SSA has recognized that individuals between
45 and 49 who "(i) Are restricted to sedentary work; (ii) Are unskilled
or have no transferable skills; (iii) Have no past relevant work or can
no longer perform past
evant work, and (iv) Are unable to communicate
in English, or are able to speak and understand English but are unable to
read or write in English," should be considered disabled as a result of
the combination of these four characteristics. Medical-Vocational Rule
200.00(h) (1). Mr. Goodwin does not meet all four criteria and therefore
we do not need to consider if this exception should have been applied.
20

48

These supposed bright-line distinctions based on the claimant's
age are modified by a regulation designed to address "borderline"
situations.

That is, where a claimant is

within a few days to a few months of reaching an older age
category, and using the older age category would result
in a determination or decision that [he is] disabled, [the
SSA] will consider whether to use the older age category
after evaluating the overall impact of all the factors of
[the] case.
20 C.F.R. § 404.1563(b); see also Lucas, 2006 U.S. App. LEXIS at *6.
"Where the guidelines do not describe a claimant's disability
accurately or where there is a borderline situation, the guidelines
are not to be applied 'mechanically.'"

Mason, 994 F. 2d at 1064, n. 9.

As the Third Circuit Court of Appeals has noted, although "[t]here
is an assumption inherent in the grids that persons within those
categories

have

situation'

this

certain

capabilities,.

assumption

becomes

.in

unreliable

indi viduali zed determination is necessary.

/I

a

'borderline
and

a

more

Kane, 776 F. 2d at 1133.

Thus, the ALJ is required to make two factual findings.

rst, he

must determine whether the period between one age category and
another satisfies the language of 20 C.F.R. § 404.1563(b), i.e., is
the claimant "within a few days to a few months of reaching an older
age category./I

While the Circuits dif

r on what period of time

creates a borderline situation, the Third Circuit Court of Appeals
has noted that there is no authority which extends consideration of
49

the quest ion to persons "within five
achieving the next category.

(5)

to six

(6)

months" of

Roberts v. Barnhart, No, 04-3647 , 2005

U.S. App. LEXIS 14408, *4 (3d Cir. July 15, 2005).
Assuming the first question is answered affirmatively, the ALJ
must then determine whether the claimant's ability to adjust to new
work on the relevant date was more like that of an individual in the
younger or in the older age category.

Lucas, id. at *10, citing Kane,

776 F.2d at 1134, and Daniels v. Apfel, 154 F.3d 1129, 1136 (loth Cir.
1998)

("The Commissioner must determine based on whatever evidence

is available which of the categories on ei ther side of the borderline
best describes the claimant and the Commissioner may apply that
category in using the grids,")
Based on the Court's statement in Roberts that a period of five
or six months before achieving the next older category does not create
a borderline situation, and given the fact that the ALJ's decision
was made six months before Plaintiff would have reached age 50, we
conclude the ALJ did not err by failing to incorporate such an
analysis in her decision.

However, we further note that Plaintiff

has misidentified the applicable grid.

That is, because the ALJ

concluded he could perform light work, Rules 202.01 through 202.22
are applicable, not the Rules pertaining to sedentary work such as
201.14, the Rule invoked by Mr. Goodwin in his brief.

Thus, even

if the ALJ had concluded Plaintiff's combination of education,

50

ability to communicate in English, previous work experience, and
transferrable skills

should have been considered as

"closely approaching advanced age,

II

if he were

application of Rule 202.14 would

still have dictated he was not disabled.
Having concluded none of Plaintiff's arguments provides a reason
for this Court to reverse the ALJ's decision denying benefits or to
remand for further consideration,

Plaintiff's motion for summary

judgment is denied and Defendant's motion is granted.

An appropriate

order follows.

August __5ft>

, 2011

UH::#; ~ilf¢l~

>

Willlam L. Standish
United States District Judge

51