TOWSON v. ASTRUE
Filing
16
MEMORANDUM JUDGMENT ORDER denying 12 Plaintiff's Motion for Summary Judgment and granting 14 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/12/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SAMUEL ROBERT TOWSON,
Plaintiff,
v.
Civil Action No. 11-1146
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
I;;~day
of
September,
2012,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
Social
Security
("Commissioner" )
denying
plaintiff's applications for disability insurance benefits and
supplemental
security
income
under
Titles
II
and
XVI,
respectively, of the Social Security Act ("Act"), IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
14) be, and the same hereby is, granted and plaintiff's motion for
summary judgment
(Document No. 12) be,
and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge (IIALJ") has an
obligation to weigh all of the facts and evidence of record and
may rej ect or discount
reasons for doing so.
~A072
(Rev. 8/82)
Cir. 1999).
any evidence
if
the ALJ explains
the
Plummer v. Apfel,
186 F.3d 422, 429
(3d
Importantly, where the ALJ's findings of fact are
supported by substantial evidence, a reviewing court is bound by
those findings! even if it would have decided the factual inquiry
differently.
2001).
Fargnoli v.
Massanari,
247 F.3d 34,
38
(3d Cir.
These well-established principles preclude a reversal or
remand of the ALJ I
substantial
S
decision here because the record contains
evidence
to
support
the
ALJ's
findings
and
conclusions.
Plaintiff protectively filed his pending applications 1 for
disability insurance benefits and supplemental security income on
November 25, 2008, alleging a disability onset date of March 2,
2007!
due
chronic
to
chronic
bronchitis!
obstructive
emphysema
pulmonary
and
restless
Plaintiff's applications were denied initially.
hearing held on August 17,
2010,
disease
leg
syndrome.
Following a video
an ALJ issued a decision on
December 8, 2010, finding that plaintiff is not disabled.
20,
2011,
("COPD"),
On July
the Appeals Council denied review making the ALJ's
decision the final decision of the Commissioner.
Plaintiff was 46 years old at the time of the ALJ's decision
and is classified as a younger person under the regulations.
C. F . R .
§ § 404
. 1563 (c)
and 416. 963 (c) .
He has at
least a
20
high
school education and has past relevant work experience as a pizza
worker! security guard, tank tender and material handler, but he
1
For purposes of plaintiff's Title II application, the ALJ found
that plaintiff met the disability insured status requirements of the Act
on his alleged onset date and had acquired sufficient quarters of
coverage to remain insured only through December 31, 2010 . Accordingly
plaintiff must establish disability on or before that date to be
entitled to Title II benefits.
I
~A072
(Rev. 8/82)
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has not engaged in any substantial gainful activity since his
alleged onset date.
After
testimony
reviewing
from
plaintiff's
plaintiff
and
a
medical
records
vocational
and
hearing
expert,
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that although the medical evidence establishes
that plaintiff suffers from the severe impairments of COPD, asthma
and
restless
leg
syndrome,
those
impairments,
alone
or
in
combination, do not meet or medically equal the criteria of any of
the impairments listed at Appendix 1 of
Subpart P.
The
Part 404,
15).
(R.
ALJ
20 C.F.R.,
also
found
that
plaintiff
retains
the
residual
functional capacity to perform work at the sedentary exertional
level
but
with
a
number
of
restrictions
limiting effects of his impairments,
accounting
including,
for
the
inter alia, a
limitation to occupations that would permit use of a portable
oxygen unit.
(R. 15).
A vocational expert identified numerous
categories of jobs which plaintiff could perform based upon his
age, education, work experience and residual functional capacity,
including garment folder, telephone solicitor and receptionist.
Relying on the vocational expert's testimony, the ALJ found that
while plaintiff cannot perform his past relevant work,
capable
of
making
an
adjustment
to
work
significant numbers in the national economy.
determined that plaintiff is not disabled.
~A072
(Rev. 8/82)
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which
he is
exists
in
Accordingly, the ALJ
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of
at
least
twelve
1382c (a) (3) (A) .
months.
42
U.S.C.
§§423{d) (1) (A)
and
The impairment or impairments must be so severe
that the claimant "is not only unable to do his previous work but
cannot, considering his age, education and work experience, engage
in any other kind of substantial gainful work which exists in the
national
economy
"
42
U.S.C.
§§423 (d) (1) (B)
and
1382c (a) (3) (B) .
The Commissioner has promulgated regulations incorporating a
five-step sequential evaluation process 2 for determining whether
a
claimant
is
under a
disability.
20
C. F . R .
§ § 404 . 1520
and
416.920j Newell v. Commissioner of Social Security, 347 F.3d 541,
545
(3d Cir.
2003).
disabled at any step,
If the claimant is found disabled or not
the claim need not be reviewed further.
Id.j see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
Here, plaintiff raises two challenges to the ALJ's findings:
(1)
the ALJ erred at step 3 by failing to consider adequately
whether plaintiff's COPD, alone or in combination with his asthma,
is medically equivalent to Listing 3.02Aj and,
(2) the ALJ erred
2
The ALJ must determine in sequence:
(1) whether the claimant
currently is engaged in substantial gainful activity; (2) if not,
whether he has a severe impairment; (3) if so, whether his impairment
meets or equals the criteria listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1; (4) if not, whether the claimant's impairment prevents him
from performing his past-relevant work; and, (5) if so, whether the
claimant can perform any other work which exists in the national economy
in light of his age, education, work experience and residual functional
capacity. 20 C.F.R. §§404.1520 and 416.920.
""A072
(Rev, 8/82)
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at step 5 by finding that plaintiff is able to perform sedentary
work with the use of a portable oxygen unit.
Upon review,
the
court finds that the ALJ properly evaluated the evidence and that
all of the ALJ's findings are supported by substantial evidence.
First, the court is satisfied that the ALJ's step 3 finding
is supported by substantial evidence.
determine
whether
equivalent
to,
the
one
of
claimant's
the
At step 3,
impairment
listed
the ALJ must
matches,
is
Burnett
impairments.
or
v.
Commissioner of Social Security Administration, 220 F.3d 112, 119
(3d Cir. 2000).
The listings describe impairments that prevent
an adult, regardless of age, education, or work experience, from
Knepp v. Apfel, 204 F.3d 78, 85
performing any gainful activity.
(3d Cir. 2000)
impairment
claimant]
20 C.F.R. §§404.1520(d) and 416.920(d).
i
is
is
necessary."
equivalent
per
se
to
a
disabled
listed
and
no
impairment
further
"If the
then
analysis
[the
is
Burnett, 220 F.3d at 119.
Here, the ALJ found that plaintiff suffers from the severe
impairments of COPD, asthma and restless leg syndrome and properly
identified the corresponding Listings for those impairments as the
Listings at 1.00,
system)
for
Listing
3.03
et seq.,
restless
for
(impairments of the musculoskeletal
leg syndrome,
asthma.
He
then
Listing 3.02
adequately
for COPD and
explained
why
plaintiff's impairments, alone or in combination, do not meet or
medically equal
impairments.
the severity of any of
(R. 15)
i
see Burnett, 220 F.3d at 120, n.2.
""Aon
(Rev. 8/82)
those relevant listed
-
5
In particular, the ALJ noted that
\I
[plaintiff's] COPD does
not meet or medically equal the criteria of listing 3.02 because
his FEVI [one-second forced expiratory volume] has been over 1.25
liters .... "
3
(R.
15).
As to plaintiff's asthma, the ALJ found
that \lit does not meet or medically equal the criteria of listing
3.03 because there is no medical evidence of (A) chronic asthmatic
bronchitis or (B) attacks, in spite of prescribed treatment and
requiring physical intervention, occurring at least once every 2
months or at least six times a year."
(R.15).
Plaintiff does not dispute the ALJ's finding that his COPD
does not meet the listing at 3.02A.
Instead, plaintiff contends
that the ALJ did not adequately consider whether plaintiff's COPD,
alone or in combination with his asthma, medically equals the
Listing at 3.02A,4 and he seeks a remand in order for the ALJ to
further develop the record as to medical equivalence.
3 The criteria for meeting Listing 3.02A are:
"chronic pulmonary
obstructive disease, due to any cause, with the FEVI equal to or less
than the values specified in table I corresponding to the person's
height without shoes."
Plaintiff's height without shoes has been
documented as 64" (R. 317) or 65" (R.
423; 449). According to table
I, in order to meet listing 3.02A, an individual who is 64-65 inches
tall without shoes must have an FEVI equal to or less than 1.25 L., BTPS
(liters, body temperature and pressure saturated with water vapor).
Here, the record contains the results of numerous pulmonary function
studies, with the lowest FEVI result recorded as 1.36 L, BTPS.
4
The ALJ also found that plaintiff does not meet Listing 3.02B
(chronic restrictive ventilatory disease) because his \lFVC [forced vital
capacity] has been over 1.45 [L, BTPS]. II
Plaintiff has raised no
challenge to the ALJ's finding that plaintiff does not meet or medically
equal Listing 3.02B. Nor does he contest the ALJ,s findings that his
asthma does not meet or medically equal Listing 3.03, and that his
restless leg syndrome does not meet or medically equal any of the
listings at 1.00, et seq., for impairments of the musculoskeletal
system.
~A072
(Rev. 8/82)
- 6
Under the regulations, an impairment is medically equivalent
to a listed impairment nif it is at least equal in severity and
duration to the criteria of any listed impairment."
§§404.1526{a) and 416.926{a).
described
in
the
listings
If a claimant has an impairment
and
exhibits
specified in the particular listing,
findings
is
not
as
severe
20 C.F.R.
as
all
of
the
findings
but one or more of
specified in
the
listing,
the
the
claimant's impairment will be found to be medically equivalent to
the listing nif [the claimant] has other findings related to [the]
impairment that are at least of equal medical significance to the
required criteria." 20 C.F.R. §§404.1526{b) (I) and416.926{b) (1).
Medical
equivalence
impairments,
related
to
also
can
be
found
for
a
no one of which meets a listing{
the
claimant's
impairments are
at
combination of
if the findings
least of
medical significance to those of a listed impairment.
equal
20 C.F.R.
§ § 4 04 . 1526 (b) (3) and 4 16 . 92 6 (b) (3) .
Medical equivalence is to be determined by considering "all
evidence in your case record about your impairment(s)
effects on you that is relevant to this finding."
§§404.1526(c)
Significantly,
and 416.926(c).
the
and its
20 C.F.R.
regulations
explicitly provide that the ALJ is to consider the opinion on
equivalence
given
Commissioner.
by
medical
consultants
by
the
The ultimate responsibility for deciding
medical equivalence rests with the ALJ.
and 416.926{e).
~A072
(Rev. 8/82)
designated
-
7
20 C.F.R. §§404.1526(e)
Here, the ALJ explicitly found that plaintiff does not have
an
impairment,
or combination of
impairments,
equals any of the Listed impairments.
(R. 15).
that medically
In reaching this
conclusion, the ALJ stated that he evaluated "medical and other
evidence
pertaining
to
[plaintiff's]
medically
determinable
impairments" and the record makes clear that he did just that.
Significantly,
plaintiff's
no
medical
source
of
record
suggested
that
impairments, alone or in combination, are medically
equivalent to any listed impairment, and the state agency reviewer
concluded that plaintiff does
listing.
not
meet or medically equal a
(R.321-27).
Although plaintiff contends that the ALJ failed to comply
with the standards of Burnett in setting forth the reasons for his
finding,
"Burnett does not require the ALJ to use particular
language or adhere
analysis.
is
to a
particular
format
in conducting his
Rather, the function of Burnett is to ensure that there
sufficient
development
of
the
record
findings to permit meaningful review."
and
explanation
of
Jones v. Barnhart, 364
F.3d SOl, 505 (3d Cir. 2004).
Here,
as already noted,
the ALJ identified the
relevant
listed impairments and discussed all of the medical evidence and
concluded that the findings related to plaintiff's impairments,
alone or in combination, are not of equal medical significance to
any listed impairment.
{R.
15-17).
The fact that the ALJ
discussed the medical evidence in detail in his discussion of
residual functional capacity, instead of including that discussion
~A072
(Rev. 8/82)
- 8
twice, does not run afoul of Burnett.
See Cop v. Commissioner of
Social Security, 226 Fed. Appx. 203, 208 (3d Cir. 2007).
The regulations require that a finding of medical equivalence
be supported by "findings related to our impairment that are at
least of equal medical significance to the required criteria."
20 C. F .R.
§§404 .1526 (b) (1) (ii)
added) .
Here,
plaintiff
presenting any findings
of
has
and 416.926 (b) (1) (ii).
failed
to
equal medical
meet
his
(emphasis
burden
of
significance to the
criteria of Listing 3. 02A, and the medical evidence of record does
not support such a finding.
See Hollis v. Commissioner of Social
Security, 116 Fed. Appx. 396, 398
(3d Cir. 2004).
The court is
satisfied that the ALJ's step 3 finding that plaintiff's COPD,
alone or in combination with his asthma, does not medically equal
Listing 3.02A, is supported by substantial evidence.
Plaintiff's
determination5
remaining argument
that plaintiff
is
that
can perform a
the ALJ's
limited
step 5
range
of
sedentary work with the use of a portable oxygen tank is not
supported
by
substantial
evidence.
Specifically,
plaintiff
contends that the ALJ' s conclusion that plaintiff can perform work
with
a
portable
oxygen
tank
is
not
supportable
because
the
vocational expert testified that all work would be precluded if
.....A072
(Rev. 8/82)
5
At step 5, the ALJ must show that there are other jobs existing
in significant numbers in the national economy which the claimant can
perform consistent with his medical impairments, age, education, past
work experience and residual
functional
capacity.
20 C.F.R.
§§404.1520(f) and 416.920(f). Residual functional capacity is defined
as that which an individual still is able to do despite the limitations
caused by his impairments.
20 C.F.R. §§404.1545(a) and 416.945(a)i
Fargnoli, 247 F.3d at 40 .
- 9
the use of the oxygen equipment would interfere with production
standards (R. 65), i.e., would result in the individual being offtask
greater
than
10%
of
the
time
(R.
66-67),
and
further
testified that he could not discern whether plaintiff's need for
a portable oxygen unit would interfere with his productivity to
that extent.
(R. 67).
Plaintiff's argument is unpersuasive.
Although the vocational expert testified that he could not
determine whether plaintiff would be off-task greater than 10% of
the time because of his portable oxygen unit,
it
vocational expert's task to make that determination.
extent
is not
the
Rather, the
to which an individual would be off-task is
an issue
relating to that individual's residual functional capacity, and
the responsibility for assessing residual functional capacity lies
solely with the ALJ.
Here,
20 C.F.R. §§404.1526{c) and 416.926(c).
the ALJ did not
incorporate a
limitation into his
residual functional capacity finding that plaintiff would be offtask greater than 10% of the time due to the use of a portable
oxygen unit and the record does not support such a limitation.
None of plaintiff's treating or reviewing physicians indicated
that plaintiff's use of a portable oxygen unit would put him off
task during the work day.
To the contrary, Dr. Edde, plaintiff's
treating pulmonologist, explicitly stated that plaintiff had "no
need for 02 during the day,"
(R.
412),
and the state agency
physician also noted "no medical evidence of need for 02 24/7" (R.
326) .
Plaintiff also indicated at the hearing that he uses his
oxygen at night and during the day "as needed."
~A072
(Rev. 8/82)
- 10
(R. 19).
As there is no evidence in the record that plaintiff's use
of a portable oxygen unit would interfere with his ability to meet
productivity standards during a work-day, the ALJ did not err by
not including in his residual functional capacity a limitation
that plaintiff would be off-task greater than 10% of the time
because of his use of a portable oxygen unit.
Likewise, he did
not err in rejecting the vocational expert's response that an
individual who would be off-task greater than 10% of the work day
because of a portable oxygen unit would be precluded from work.
A hypothetical to the vocational expert must reflect only
those
impairments
Podedworny v.
and
Harris,
limitations
745
supported
F.2d 210
(3d Cir.
by
the
1984),
record,
and
the
additional limitation advanced by plaintiff is supported neither
by
the
objective
activities.
medical
Accordingly,
evidence
nor
by
plaintiff's
the vocational expert's response to
plaintiff's hypothetical properly was disregarded.
Barnhart, 364 F.3d SOl, 506 (3d Cir. 2004)
disregard
vocational
that
plaintiff
Instead,
can
perform
See Jones v.
(ALJ has authority to
response
expert's
inconsistent with evidence).
testimony
daily
to
hypothetical
the vocational expert's
the
jobs
that
he
had
identified "so long as the use of a portable oxygen tank does not
interfere
with
accepted
levels
of
productivity,"
constitutes
substantial evidence supporting the ALJ's step 5 finding that
plaintiff
retains
the
ability
to
perform
significant numbers in the national economy.
~A072
(Rev, 8/82)
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11
work
existing
in
After carefully and methodically considering all
medical evidence of record and plaintiff s
I
testimony
I
of
the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
The ALJ/s findings and conclusions are supported by
substantial
evidence
and
are
not
otherwise
erroneous.
AccordinglYI the decision of the Commissioner must be affirmed.
~~
Gustave Diamond
United States District Judge
cc: Gregory T. Kunkel Esq.
Kunkel & Finkl LLP
Brentwood Professional Bldg.
4411 Stilley Road, Suite 206
Pittsburgh, PA 15227
I
Paul Kovac
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
'Il>.A072
(Rev. 8/82)
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