SMITH v. ASTRUE

Filing 12

MEMORANDUM OPINION indicating that, for reasons more fully stated within said Opinion, the decision of the ALJ is adequately supported by substantial evidence from Plaintiff's record within the meaning of 42 U.S.C. § 405(g). Therefore, Plai ntiff's Motion for Summary Judgment 8 is denied and Defendant's Motion for Summary Judgment 10 is granted. Accordingly, the decision of the Commissioner is affirmed. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 9/14/12. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTAL DAWN SMITH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 12-362
Judge Nora Barry Fischer

MEMORANDUM OPINION

I.

INTRODUCTION
Christal Dawn Smith (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g),

seeking judicial review of the final determination of the Commissioner of Social Security
(“Defendant” or “Commissioner”) denying her application for supplemental security income
(“SSI”) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f (“Act”).
The record has been developed at the administrative level, and the parties have brought crossmotions for summary judgment. For the following reasons, the Court finds that the decision of
the Administrative Law Judge (“ALJ”) is supported by substantial evidence. Accordingly,
Plaintiff’s Motion for Summary Judgment (Docket No. 8) is DENIED, and Defendant’s Motion
for Summary Judgment (Docket No. 10) is GRANTED.
II.

PROCEDURAL HISTORY

1

Plaintiff applied for SSI on March 9, 2009, alleging both physical and mental
impairments with a disability onset date of January 1, 2005. (R. at 161-167).1 Following the
initial denial of her application on August 4, 2009 (R. at 104-115), a hearing was held before an
ALJ on November 17, 2010 at which Plaintiff and a vocational expert appeared and testified (R.
at 41-80). The ALJ issued his unfavorable decision to Plaintiff on December 8, 2010. (R. at 2140). Thereafter, Plaintiff filed a request for review by the Appeals Council. (R. at 14-20). The
Appeals Council denied Plaintiff’s request on February 10, 2012, thereby making the decision of
the ALJ the final decision of the Commissioner. (R. at 1-6). Having exhausted all administrative
remedies, Plaintiff filed her Complaint in this court on March 26, 2012, followed by Defendant’s
Answer on May 31, 2012. (Docket Nos. 4, 5). Subsequently, Plaintiff moved for summary
judgment with a supporting brief on June 15, 2012. (Docket Nos. 8-9). Defendant filed his crossmotion and brief in support on July 19, 2012. (Docket Nos. 10-11).
III.

FACTS
A. General Background
Plaintiff was born on October 1, 1978 and was thirty-two years of age at the time of her

hearing.2 (R. 48). She resided with her fiancé in Jeannette, Pennsylvania, where Plaintiff also
attended high school. (R. at 47-48). Plaintiff has a son from a previous marriage, who was ten
years old at the time of the hearing. (R. at 48, 65, 73, 553). Prior to her March 9, 2009 filing,
Plaintiff had applied for disability insurance benefits (“DIB”) in 2006 and SSI in 2007, but was
each time denied. (R. at 98-102, 218). She was not working at the time of the hearing. (R. at 53).
Plaintiff’s highest level of education is a high school degree. (R. at 48-49). From
kindergarten until completing the twelfth grade, she participated in special education, also taking
1

Citations to ECF Nos., the Record, hereinafter, “R. at ___.”
Plaintiff is defined as a “Younger Person,” an individual between the ages of 18 and 49. 20 C.F.R. §§
404.1563, 416.963.
2

2

vocational courses in food service. (Id.). Since graduating from high school in 1998, she has
performed a number of unskilled, short-term and temporary jobs, including as a cashier in a
grocery store and fast food restaurants. (R. at 52-53, 194, 554). Plaintiff’s work history
concluded in 2005 after a brief stint as a restaurant dishwasher. (Id.). Her daily activities
primarily consisted of watching television, painting, and playing games. (R. at 67, 234, 586).
B. Medical History
Plaintiff’s medical history includes ankle and knee injury, low back pain, obesity,
asthma, migraine headaches, sleep apnea, hypothyroidism, a hiatal hernia, a learning disability,
and depression. (R at 261, 359-364, 420-21). In her Disability Report, Plaintiff claimed that
depression, thyroid problems, a sleep disorder, a hernia, and the fact that she is a “slow learner”
limit her ability to work. (R. at 222). Her medications included Perphenazine,3 Amitryptyline,4
Verapamil,5 Butalbital,6 Levothyroxine,7 and Sertraline.8 (R. at 260). She does not abuse alcohol,
nor does she use tobacco or illicit drugs. (R. at 586, 594).
1. Ankle, Knee, and Back

3

Perphenazine is classified as a conventional antipsychotic drug and is generally used to treat the symptoms
of schizophrenia. It works by decreasing abnormal excitement in the brain. PubMed Health, Perphenazine,
available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000601/ (last visited September 12, 2012).
4
Amitriptyline is classified as a tricyclic antidepressant drug and is used to treat the symptoms of depression.
It works by increasing the amounts of certain natural substances in the brain that are needed to maintain mental
balance. PubMed Health, Amitriptyline, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000666
(last visited September 12, 2012).
5
Verapamil is classified as a calcium-channel blocker and is used to treat high blood pressure and to control
angina (chest pain). It works by relaxing the blood vessels so the heart does not have to pump as hard. PubMed
Health, Verapamil, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000818/ (last visited September
12, 2012).
6
“Analgesics containing butalbital compounded with aspirin, acetaminophen, and/or caffeine are widely
used for the treatment of migraine and tension-type headache.” PubMed Health, Butalbital in the treatment of
headache, available at http://www.ncbi.nlm.nih.gov/pubmed/11903523 (last visited September 12, 2012).
7
Levothyroxine is a thyroid hormone used to treat hypothyroidism. PubMed Health, Levothyroxine,
available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000684/ (last visited September 12, 2012).
8
Sertraline is a type of anti-depressant known as a selective serotonin reuptake inhibitor (SSRI). It is used to
treat depression, obsessive-compulsive disorder, and anxiety disorders. It works by “increasing the amounts of
serotonin, a natural substance in the brain that helps maintain mental balance.” PubMed Health, Sertraline,
available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001017/ (last visited September 12, 2012).

3

In October 2005, Plaintiff sustained injury to her left knee when she fell while taking out
the garbage. (R. at 283, 294). However, an x-ray taken of her knee on October 21, 2005 at Mercy
Jeannette Hospital did not reveal facture, dislocation, or degenerative change. (R. at 463).
Thereafter, Plaintiff was treated for left knee and low back pain by Dr. Priya Prabhakar, M.D.,
who prescribed physical therapy and referred her to The PT Group in Jeannette, PA. (R. at 280,
285). Plaintiff appeared at The PT Group for an initial evaluation on November 23, 2005,
complaining that walking, standing, and lifting were painful, yet she ambulated independently.
(R. at 283, 285). She also reported sleeping “fairly well” and that she was not using any
medications. (R. at 283, 285). On November 28, 2005, Plaintiff visited Mercy Jeannette Hospital
for an MRI of her left knee and lower back. (R. at 285, 294, 461-62). The MRI of her knee
revealed intrameniscal degenerative changes in the posterior horns of the medial meniscus,9 and
the MRI of her back showed a “very slight disc bulge” posteriorly in her lumbar spine, but no
other abnormalities were present. (R. at 294, 461-62).
As Plaintiff continued physical therapy through December 2005, she reported doing
“very well” and was able to perform therapeutic exercises “without difficulty,” noting
improvements in her back and knee. (R. at 285-89). On December 21, 2005, although still
complaining of knee pain to some degree, Plaintiff reported “no pain” in her lower back and was
discharged by her physical therapist after completing all twelve prescribed sessions. (R. at 28990). In a December 22, 2005 letter to Dr. Prabhakar, her physical therapist wrote that Plaintiff
had “achieved all established goals” for her low back pain, in addition to all short-term goals and
half of all long-term goals for her left knee pain. (R. at 290). However, due to Plaintiff’s reported

9

The meniscus is “a crescentic intraarticular fibrocartilage found in certain joints” STEDMAN’S MEDICAL
DICTIONARY (28th ed. 2006).

4

frustration with her left knee and “fairly persistent” pain, her physical therapist recommended
she follow up with an orthopedic specialist. (Id.).
On January 9, 2006, Plaintiff was examined by Dr. George R. Hunter, a medical doctor
specializing in orthopedics at Orthopedic Associates of Pittsburgh in Monroeville, PA. (R. at
294). Dr. Hunter’s Office Notes referenced the history of Plaintiff’s knee injury and her alleged
difficulty walking because of pain. (Id.). He noted her left knee had a normal alignment and no
effusion,10 as well as full range of motion including full extension, but there was tenderness to
the medial and lateral joint lines and palpation of the patellar tendon. (Id.). Dr. Hunter opined
Plaintiff might have early arthritic changes in her knee and injected it with Lidocaine 11 and
Depomedrol,12 instructing her to return for reassessment if her symptoms did not “settle down.”
(Id.).
In July 2006, Plaintiff injured her left ankle joint, of which an x-ray was taken on July 17,
2006 and was normal except for a small calcaneal spur.13 (R. at 457-58). Treatment records
indicate that Plaintiff saw her primary care physician, Dr. Edgar Derek Peske, M.D., that August
for pain in her left knee and ankle. (R. at 359). On November 7, 2006, Plaintiff visited Mercy
Jeannette Hospital for another x-ray of her ankle, which showed evidence of soft tissue swelling
and presence of a plantar calcaneal spur. (R. at 359, 457). She saw Dr. Peske for ankle pain again
on December 1, 2006, at which time he referred her to a physician named Dr. Kuorul, who
diagnosed her with post-taylor tendonitis on December 6, 2006. (R. at 359). However, in his
10

Effusion is the “escape of fluid from the blood vessels or lymphatics into the tissues or a cavity.”
STEDMAN’S MEDICAL DICTIONARY (28th ed. 2006).
11
Lidocaine is a local anesthetic, which “works by stopping nerves from sending pain signals.” PubMed
Health, Lidocaine Transdermal, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000235/ (last visited
September 12, 2012).
12
Depo Medrol is an “anti-inflammatory glucocorticoid for intramuscular, intraarticular, soft tissue or
intralesional injection.” RXList, Depo Medrol, available at http://www.rxlist.com/depo-medrol-drug.htm (last
visited September 12, 2012).
13
A heel spur is a “bony thickening of the proximal plantar surface of the calcaneus associated with severe
pain on standing.” STEDMAN’S MEDICAL DICTIONARY (6th ed. 2006).

5

March 2007 medical source opinion to the Bureau of Disability, Dr. Peske wrote that Plaintiff
experienced “occasional swelling” of her left ankle with pain strictly related to the joint and no
other area in her leg. (R. at 363-64). Further, he stated that she had no problems getting up from
a chair, the exam table, lying down, sitting up, or performing a range of motion examination, was
able to ambulate without difficulty, and walked in an upright position. (Id.). On October 15,
2007, Plaintiff had an x-ray of her knee taken at Mercy Jeannette Hospital which did not show
acute fracture, dislocation, or joint deformities, though there was evidence of minimal soft tissue
swelling. (R. at 448). An x-ray of her ankle taken at Westmoreland Regional Hospital on
December 3, 2007 showed no fracture, dislocation, or bony destructive change, but a plantar
calcaneal spur was noted. (R. at 444).
On April 23, 2008, Plaintiff appeared at the Mercy Jeannette Hospital emergency room
for pain in her lower back. (R. at 403). X-rays were taken and all results were normal. (R. at 409,
440, 441). Plaintiff’s attending physician that day was Dr. Liza Chopra, who diagnosed Plaintiff
with left hip strain. (R. at 404, 410). Dr. Chopra prescribed Plaintiff eight pills of Tylenol #3
(Tylenol plus codeine)14 with instructions for Plaintiff to take one or two every six hours as
needed for pain. (R. at 404, 411). Plaintiff was instructed to follow up with Dr. Peske. (R. at
412). Plaintiff visited Dr. Peske on December 22, 2008 after “throwing out” her knee a week
earlier and requested a refill of Naproxyn.15 (R. at 427). A month later, she returned to see Dr.
Peske on January 23, 2009 after a trip to the emergency room when her knee “gave out.” (R. at
426). However, an examination did not reveal abnormalities beyond some tenderness over both
14

“Tylenol #3” is a combination of acetaminophen and codeine, used to treat mild to moderate pain.
PubMed,
Acetaminophen
and
Codeine,
available
at
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601005.html (last visited September 12, 2012).
15
Naproxen is an NSAID, used to treat pain, tenderness, and swelling by stopping production of a substance
that
causes
pain,
fever,
and
inflammation.
PubMed,
Naproxen,
available
at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000526/ (last visited September 12, 2012).

6

medial compartments. (Id.). The Court notes that at this visit, Plaintiff requested that Dr. Peske
fill out a disability form on her behalf, but he declined because there was “no cause for
disability.” (Id.).
Plaintiff was evaluated for left knee pain by Dr. Gregory F. Habib, D.O. on January 12,
2010 after a referral by Dr. Kevin Wong, M.D., a primary care physician. (R. at 586). Plaintiff
reported progressive pain and discomfort over the past six years, making it difficult for her to sit
for any extended period of time. (Id.). She also reported stiffness upon standing. (Id.). After an xray, Dr. Habib diagnosed her with incidental right knee mild patellofemoral arthritis and mild
varus deformity of the left knee and referred her for an MRI. (R. at 586-88). An MRI on January
18, 2010 revealed left knee patellar chondromalacia with infrapatellar synovitis. (R. at 585). Dr.
Habib prescribed Plaintiff physical therapy, anti-inflammation medications, and a stabilizing
brace, instructing her to follow up in six-week intervals. (Id.). On March 11, 2010, Plaintiff
followed up with Dr. Habib and reported that physical therapy was helping her knee, that she had
“less pain and discomfort,” and felt “that she can live with the knee.” (R. at 584). Dr. Habib
noted that Plaintiff was wearing her knee brace and did not have any pain or discomfort and did
have good range of motion. (Id.). He wrote she “has done well” and “told me that she could live
with this at this point.” (Id.).
2. Obesity, Hypothydroidism, Asthma, and Sleep Apnea
In his 2007 medical source opinion, Dr. Peske noted Plaintiff’s obesity but that she “has
no difficulty walking, sitting, [or] standing,” and that it “does not give her any problem with
shortness of breath or fatigue.” (R. at 364). Here, he also acknowledged that Plaintiff had a
history of asthma, but that she had not had an attack in approximately seven years. (R. at 360).
Dr. Peske stated that upon examination, Plaintiff’s chest and lungs were clear and she had no

7

chest pain. (R. at 360, 363). He reported Plaintiff claimed to suffer shortness of breath going up
hills or after about twenty steps; however, she reported no changes with seasonal allergies,
temperature changes, and did not experience wheezing. (Id.). In his 2009 medical source opinion
to the Bureau of Disability, again Dr. Peske reported that Plaintiff’s asthma was well controlled,
and that “she has actually required no medication for this problem.” (R. at 545). Similarly,
Plaintiff’s thyroid condition has been consistently documented as well controlled; for example,
on October 28, 2008 and again on December 22, 2008, Dr. Peske saw Plaintiff and noted that her
hypothydroidism was stable. (R. at 427-28).
As for her sleep apnea, Plaintiff’s relevant medical history begins on April 23, 2008,
when she was evaluated at Westmoreland Sleep Medicine for “possible sleep apnea” by a
pulmonologist, Dr. Bharat Jain, M.D. (R. at 431, 488). Plaintiff complained of difficulty
initiating and maintaining sleep, often being awakened for “no apparent reason” or gasping for
air and choking. (Id.). She described taking “anywhere from a few minutes to a few hours” to fall
asleep, getting an estimated total of six and a half hours of sleep each night. (Id.). She denied
quitting breathing, sleep walking, or teeth grinding, but did experience night sweats, early
morning headaches, tiredness, memory lapses, difficulty concentrating, body aches, and joint
pains during the day and asserted that she did not feel refreshed upon awakening. (Id.). Plaintiff
subsequently underwent formal overnight polysomnography testing on June 3, 2008, which
revealed mild obstructive sleep apnea syndrome.16 (R. at 489, 500). When CPAP Titration17 was

16

Polysomnography testing measures “multiple physiologic variables associated with sleep,” including
“oxygen saturation, electrocardiography, air flow, respiratory effort, limb movement, eye and jaw muscle
movement, and brain electrical activity.” STEDMAN’S MEDICAL DICTIONARY (6th ed.).
17
CPAP is a technique where airway pressure is maintained above atmospheric pressure by pressurization of
the ventilatory circuit. STEDMAN’S MEDICAL DICTIONARY (6th ed. 2006).

8

added, Plaintiff reported that the sleep was better than usual and that she felt awake but not alert.
(R. at 501). Thereafter, Dr. Jain prescribed a CPAP machine to Plaintiff. (R. at 493, 501).
On August 14, 2008, Plaintiff followed up with Dr. Jain after using the CPAP machine
for a few weeks and stated that she had noticed improvements in her sleep. (R. at 493). Dr. Jain
concluded the appointment with instructions to continue using the same CPAP setup and follow
up again in six months. (Id.). When Plaintiff returned to see Dr. Jain on February 12, 2009, she
reported using the CPAP machine as prescribed, but that it had recently begun to cause her a
cough and dry mouth. (R. at 495). Nevertheless, Dr. Jain decided against adjusting her current
CPAP settings pending a repeat sleep study, noting Plaintiff had gained over twenty pounds
since her last appointment six months ago. (Id.). When a second nocturnal polysomnography
with CPAP Titration was performed later that month, Plaintiff reported sleeping worse than usual
and that she felt awake but not alert. (R. at 502). However, Dr. Jain continued Plaintiff’s CPAP
treatment. (R. at 503).
Following Plaintiff’s follow-up appointment with Dr. Jain on April 13, 2009, he wrote
she “was exposed to significant hay and was experiencing significant rhinitis and difficulty
breathing with cough.” (R. at 497). Dr. Jain adjusted the settings on her CPAP machine and
prescribed her Singulair to treat her rhinitis and asthma. (Id.). On January 25, 2010, Plaintiff saw
Dr. Vilharika K. Bakshi, M.D. and stated she felt well other than “minor complaints,” showing
improvement in activity level and getting approximately four to eight hours of sleep daily. (R. at
604). On March 1, 2010, Dr. Wong noted that Plaintiff reported getting more than eight hours of
sleep daily. (R. at 601).
3. Migraine Headaches

9

Plaintiff reports suffering from recurrent, severe headaches since high school. (R. at 519).
Dr. Hunter ordered an MRI of Plaintiff’s brain, which was performed on March 6, 2006 at Mercy
Jeannette Hospital. (R. at 314, 459). Although the MRI revealed no abnormalities, it did show
“minimal chronic sinusitis changes.” (Id.). Months later, Plaintiff saw Dr. Peske in September
2006 complaining of rib pain, a cold, and tension headaches. (R. at 359). In his 2007 medical
source opinion, Dr. Peske wrote that Plaintiff described a few frontal side and back headaches
which seemed to be triggered by different odors. (R. at 362). He added that Plaintiff had no
history of dizziness, fainting, blackouts, seizures, convulsions, eye trouble, hearing trouble,
dental or mouth problems, nosebleeds, allergies, hay fever, or hoarseness. (Id.). In September
2008, Plaintiff saw Dr. Peske for a headache in her right temporal area and around her eyes that
she claimed had lasted a week, to which she could find no relief from Naproxyn, Advil, or
Excedrin Migraine. (R. at 430). Upon examination, Dr. Peske diagnosed her with allergic rhinitis
and prescribed her Nasonex nasal spray18 and Loratadine.19 (Id.).
Plaintiff was admitted to the emergency room at Westmoreland Hospital on May 18,
2009 after complaining of facial numbness on her right side accompanied by a headache,
weakness in her right arm and leg, and an off-balance gait. (R. at 506-512). Her attending
physician, Dr. Scott Jacobson, D.O., referred Plaintiff to Dr. Louis Catalano, M.D. for a
comprehensive neurological consultation. (R. at 518-19). Dr. Catalano diagnosed Plaintiff with
complex migraine headaches with right facial paresthesia20 and mild right hemiplegia,21 for

18

Nasonex is the brand name for mometasone nasal inhalation. It “is used for the treatment and prevention of
nasal symptoms of seasonal and year-round allergies, including runny nose, sneezing, and itchy nose... [i]t works by
reducing inflammation (swelling) in the nasal passages.” PubMed Health, Mometasone Nasal Inhalation, available
at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000204 / (last visited September 12, 2012).
19
Loratadine is an antihistamine and is used to temporarily relieve the symptoms of hay fever and other
allergies. PubMed Health, Loratadine, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001010/ (last
visited September 12, 2012).
20
Paresthesia is “spontaneous abnormal usually nonpainful sensation (e.g. burning, pricking)” STEDMAN’S
MEDICAL DICTIONARY (28th ed. 2006).

10

which he prescribed Topamax.22 (R. at 519-20). Plaintiff followed up with Dr. Catalano on June
8, 2009 at the Neurological Institute of Western Pennsylvania. (R. at 549). She reported daily
headaches and experiencing side effects from Topamax and no relief from over the counter
medication. (Id.). Dr. Catalano referred Plaintiff for an EEG, which was performed on June 22,
2009 with a normal outcome. (R. at 551). An MRI on July 6, 2009 did not reveal any
abnormalities, either. (R. at 552). In his July 13, 2009 letter to Dr. Peske, Dr. Catalano wrote that
Plaintiff reported daily headaches but did experience relief from Fioricet,23 and he continued
treatment with her current medications. (R. at 550).
4. Hiatal Hernia
On December 14, 2006, Plaintiff presented to the emergency room at Mercy Jeannette
Hospital reporting upper abdominal pain and was treated overnight. (R. at 316-18, 333-34). She
was consulted by Dr. Balu Shetty, a gastroenterologist, at which time Plaintiff reported nausea
but no vomiting, denied headaches and cough, and appeared “alert, well oriented and in no
distress.” (R. at 317). Following a gastroscopy, Dr. Shetty diagnosed Plaintiff with a hiatal hernia
and severe gastritis before prescribing her Protonix to be taken daily for four weeks. (R. at 31718, 333-34).
A chest x-ray taken on August 3, 2007 at Mercy Jeannette Hospital revealed that Plaintiff
had clear lung fields and pleura signifying an overall normal chest. (R. at 452). On September
17, 2007, Plaintiff was examined at Latrobe Hospital for abdominal pain; a sonogram was taken
and was normal. (R. at 450). Months later, on January 2, 2008, Plaintiff was admitted to the
21

Hemiplagia is “paralysis on one side of the body.” STEDMAN’S MEDICAL DICTIONARY (28th ed. 2006).
Topamax is the brand name for Topiramate, which is used to treat seizures and prevent migraine
headaches. It is in a class of medications called anticonvulsants. PubMed Health, Topiramate, available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000998/ (last visited September 12, 2012).
23
Fioricet is a combination of acetaminophen, butalbital, and caffeine. It is used to relieve tension headaches,
but may be prescribed for other uses. PubMed Health, Acetaminophen, Butalbital, and Caffeine, available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000016/ (last visited September 12, 2012).
22

11

emergency room at Mercy Jeannette Hospital for chest pain (R. at 392-402). Another chest x-ray
was taken and compared to that from August 3, 2007, again revealing clear lungs. (R. at 398,
443). Plaintiff was attended by Dr. Yechiel A. Reit, M.D., who diagnosed her with nonspecific
chest pain, suggesting it could be related to her hiatal hernia. (R. at 399). She was discharged
with instructions to follow up with Dr. Peske. (Id.)
At a September 29, 2008 visit with Dr. Peske, Plaintiff reported sharp pain in the right
side of her stomach, nausea, and constant pain in the right side of her chest, but no cough, stuffy
head or nose. (R. at 429). On March 10, 2009, Plaintiff was admitted to the emergency room at
Westmoreland Hospital, complaining of chest pain and a cough beginning two days earlier. (R.
at 466-71). Dr. Neil Baum, M.D. treated Plaintiff, diagnosing her with musculoskeletal chest
pain after a chest x-ray was taken and was normal. (R. at 471, 484).
5. Mental Impairments
Plaintiff has a history of depression that includes a hospitalization in 1996. (R. at 361).
However, in his 2007 medical source opinion, Dr. Peske noted Plaintiff “refers to her previous
depression, but denies any present problems with depression.” (R. at 362). Again, on April 23,
2008, Plaintiff told Dr. Jain that her depression was “adequately controlled.” (R. at 435, 489). At
her May 19, 2009 neurological consultation with Dr. Catalano, he noted “no signs or symptoms”
of anxiety or depression. (R. at 508). While Plaintiff reported worsening depression and panic
attacks at a January 25, 2010 appointment with Dr. Bakshi, she claimed that she can take long
walks and sometimes spends all day on her computer keeping in touch with people on Facebook.
(R. at 604). Dr. Bakshi noted she did not show signs of bipolar depression, but did prescribe her
an anti-depressant and referred her to psychiatry for evaluation. (R. at 605).

12

As for Plaintiff’s alleged learning disability, in his 2007 medical source statement, Dr.
Peske wrote that Plaintiff’s chief complaint was “illiteracy,” noting, “she is a slow learner, spells
poorly, does not read well, and cannot hold a job secondarily with regard to specific information
requested in this report.” (R. at 360). However, Dr. Peske reported that Plaintiff’s mental status
was normal with respect to her judgment, intelligence, affect, orientation, and memory. (R. at
364).
On July 21, 2009, Dr. Timothy Bridges, Ph.D. conducted a Clinical Psychology
Disability Evaluation of Plaintiff on behalf of the Bureau of Disability. (R. at 553). He indicated
that Plaintiff initially denied receiving psychiatric treatment, but later admitted to a
hospitalization as a teenager at Monsour Medical Center. (R. at 553-54). Plaintiff stated that she
was hospitalized for “a couple of months” due to depression, regarding which her mother
“wanted a second opinion.” (R. at 554). Dr. Bridges reported that Plaintiff exhibited poor dress,
grooming, and hygiene and her facial expression remained flat, though she was able to convey
appropriate eye contact. (R. at 555). He described the rate, volume, and structure of her speech as
limited but adequate. (Id.). Plaintiff was not conversational and mostly spoke only when
addressed. (Id.). She reported a low concentration level and to spending most of her time at
home, watching television. (Id.). Dr. Bridges described Plaintiff’s concentration level that day as
“fair” and her mood as “depressed.” (Id.). She discussed trouble sleeping and other physical
ailments, and claimed to suffer from a poor appetite, stating: “Sometimes I don’t even eat at all”;
however, Dr. Bridges noted that Plaintiff was an estimated thirty to fifty pounds overweight.
(Id.). Plaintiff denied getting along well with others and claimed to “keep to herself.” (Id.). Dr.
Bridges expressed suspicions that Plaintiff was “functioning well below the average intellect,”
possibly within the mental retardation range. (Id.) He believed that Plaintiff’s ability to

13

understand, remember, and carry out detailed instructions was markedly limited, and she was
moderately limited in her ability to engage in work-related interactions. (R. at 557).
Overall, Dr. Bridges opined that Plaintiff’s memory and thought content appeared to be
fair and consistent with her IQ and that her judgment and insight appeared adequate, though she
appeared to suffer from relatively low self-esteem. (R. at 555). He found Plaintiff to be attentive
and alert, and her answers appeared accurate and reliable. (R. at 555-56). He concluded that
Plaintiff was capable of handling daily affairs, though his impression was that her psychosocial
stressors were of a moderate level. (R. at 556). Dr. Bridges assigned Plaintiff a current GAF24 of
50 and estimated the same for her highest in the past year. (Id.).
C. Functional Capacity
Dr. Dilip S. Kar, M.D. performed a physical residual functional capacity assessment of
Plaintiff on April 3, 2007, concluding that the medical evidence supported a diagnosis of arthritis
in Plaintiff’s ankle. (R. at 365, 370). On August 3, 2009, Dr. Nghia Van Tran, M.D., Ph.D. gave
Plaintiff a second physical residual functional capacity assessment, finding that the medical
evidence established medically determinable impairments of asthma, lower back pain,
24

The Global Assessment of Functioning Scale (“GAF”) assesses an individual's psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM–IV–TR)
34 (4th ed.2000). An individual with a GAF score of 91–100 exhibits “[s]uperior functioning in a wide range of
activities” and “no symptoms;” of 81–90 exhibits few, if any, symptoms and “good functioning in all areas,” is
“interested and involved in a wide range of activities,” is “socially effective,” is “generally satisfied with life,” and
experiences no more than “everyday problems or concerns;” of 71–80, may exhibit “transient and expectable
reactions to psychosocial stressors” and “no more than slight impairment in social, occupational, or school
functioning;” of 61–70 may have “[s]ome mild symptoms” or “some difficulty in social, occupational, or school
functioning, but generally functioning pretty well” and “has some meaningful interpersonal relationships;” of 51–60
may have “[m]oderate symptoms” or “moderate difficulty in social, occupational, or school functioning;” of 41–50
may have “[s]erious symptoms (e.g., suicidal ideation ... )” or “impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job);” of 31–40 may have “[s]ome impairment in reality testing or
communication” or “major impairment in several areas, such as work or school, family relations, judgment, thinking
or mood;” of 21–30 may be “considerably influenced by delusions or hallucinations” or “serious impairment in
communication or judgment (e.g., ... suicidal preoccupation)” or “inability to function in almost all areas;” of 11–20
may have “[s]ome danger of hurting self or others” or “occasionally fails to maintain minimal personal hygiene” or
“gross impairment in communication;” of 1–10 may have “[p]ersistent danger of severely hurting self or others” or
“persistent inability to maintain minimal personal hygiene” or “serious suicidal act with clear expectation of death.”

14

hypothydroidism and sleep disorder. (R. at 581). Each physician found the evidence established
some exertional limitations on how much weight Plaintiff could lift at once and on how long she
could sit and stand: Dr. Kar and Dr. Van Tran both determined Plaintiff could occasionally lift
twenty pounds and frequently lift ten pounds and could sit for a total of six hours of an eighthour workday; while Dr. Kar found that Plaintiff could only stand for two hours out of an eighthour day, Dr. Van Tran concluded that she could stand for six. (R. at 366 and 577). Additionally,
both Dr. Kar and Dr. Van Tran felt that Plaintiff’s environmental limitations were affected with
respect to her exposure to extreme cold, extreme heat, wetness, humidity, and fumes; while Dr.
Van Tran felt she must avoid even moderate exposure, Dr. Kar concluded that Plaintiff was
limited to avoiding concentrated exposure. (R. at 368 and 377). Further, both doctors concluded
that Plaintiff was otherwise unlimited to pushing and pulling operations, exposure to noise,
vibration, and environmental hazards, and had no postural, manipulative, visual, or
communicative limitations. (R. at 366-68 and 77-79).
Dr. Kar found Plaintiff’s statements to be partially credible based on the evidence of
record. (R. at 370). In his opinion, Plaintiff’s daily activities did not support a finding that she
was significantly limited in relation to her alleged symptoms, as she reported that she could
drive, walk two miles, do chores, was not attending physical therapy, did not require an assistive
device to ambulate, and had not been prescribed narcotic medication for pain. (Id.). Controlling
weight was given to Dr. Peske’s medical source opinion from March 2007, in which he reported
that despite some limitations in standing and walking, Plaintiff was not disabled. (R. at 371). Dr.
Van Tran also found Plaintiff’s statements to be partially credible regarding her description of
daily activities that are significantly limited. (R. at 582). Dr. Van Tran noted that Plaintiff had

15

reported improvements in her sleep apnea with the CPAP machine on her August 14, 2008
follow-up with Dr. Jain. (Id.)
In a mental residual functional capacity assessment by Dr. Richard A. Heil, Ph.D. on
April 9, 2007, he concluded that the medical evidence supported medically determinable
impairments of a specific learning disorder and history of depression, but that Plaintiff could
meet the basic mental demands of competitive work on a sustained basis. (R. at 374). He
summarily concluded that Plaintiff had no marked limitations with respect to the mental
categories evaluated. (R. at 372-73). Specifically, he found that Plaintiff remained capable of
understanding and remembering instructions, concentrating, interacting with others, and adapting
to changes in the workplace, with no restrictions on adaptation. (R. at 374). He found Plaintiff’s
statements to be partially credible based on the evidence of record, and gave consideration to Dr.
Peske’s 2007 medical source opinion stating that Plaintiff was not disabled. (Id.). Based on his
diagnoses, Dr. Heil rated functional limitations for Listings 12.02 and 12.04, finding that
Plaintiff was moderately limited in her ability to maintain concentration, persistence, or pace, but
was otherwise mildly limited with respect to activities of daily living and social functioning and
had no limitations with respect to decompensation. (R. at 386).
Dr. Arlene Rattan, Ph.D. performed a second mental residual functional capacity
assessment of Plaintiff on July 28, 2009, in which she found that the medical evidence supported
a medically determinable impairment of major depressive disorder. (R. at 561). While Dr.
Rattan’s summary conclusions included marked limitations specifically regarding Plaintiff’s
ability understand, remember, and carry out detailed instructions, she opined that Plaintiff was
able to meet the basic mental demands of competitive work on a sustained basis. (R. at 559-61).
Dr. Rattan determined that despite Plaintiff’s limitations, she could still be expected to

16

understand and remember simple instructions, perform simple tasks, make simple decisions, ask
simple questions and accept instruction, and sustain an ordinary routine without special
supervision. (R. at 561). She found Plaintiff’s statements to be partially credible, and relied on
the opinions of Dr. Bridges and Dr. Peske in his 2009 medical source opinion, noting he
described Plaintiff as “an emergency room abuser.” (R. at 561, 574). Therefore, Dr. Rattan
determined that Plaintiff was able to meet the basic mental demands of competitive work on a
sustained basis. (Id.). Based on her diagnosis, Dr. Rattan rated functional limitations for Listing
12.04, finding moderate limitations with respect to social functioning and concentration,
persistence, or pace, but that Plaintiff’s activities of daily living were only mildly limited and
that she had no limitations with regard to decompensation. (R. at 572).
D. Administrative Hearing
A hearing regarding Plaintiff’s application for SSI was held on November 17, 2010 in
Latrobe, Pennsylvania before ALJ Raymond J. Zadzilko. (R. at 41). Plaintiff appeared with the
assistance of her non-attorney representative, Daniel Rucker. (Id.). Irene Montgomery, an
impartial vocational expert, also testified.25 (Id.). Plaintiff testified that she was not engaged in
employment and that her income was derived from welfare food stamps. (R. at 51). Her fiancé,
who typically worked as a forklift operator, was also unemployed at the time of the hearing.
(Id.). When the ALJ asked about the short duration of jobs she has previously held, Plaintiff
explained that she left due to health problems or, in some instances, an inability to satisfactorily
perform the job. (R. at 52-53). She provided an example of losing a temporary job on a
progression line because she could not keep up with the rate of orders she was required to send

25

Irene Montgomery is a professional counselor and an American Board of Vocational Experts Fellow with
many years of experience working as a vocational expert. (R. at 153-55).

17

out. (Id.). As a grocery store cashier, Plaintiff was fired for repeatedly failing to balance her
cash drawer. (R. at 53).
Plaintiff answered specific questions pertaining to her physical condition. (R. at 53). She
stated that she has a driver’s license and can drive unless she has a headache. (R. at 47-48). At
the time of the hearing, Plaintiff was five feet, four inches (5”4) tall, weighing 269 pounds. (R.
at 48, 50). She reported suffering from injuries to her left ankle and knee, back pain, asthma,
anemia, hiatal hernia, sleep apnea, hypothydroidism, and depression. (R. at 54-55). Plaintiff’s
ankle and knee injury occurred when her knee gave out from under her as she was standing,
causing her to twist her ankle at the same time. (R. at 58). Plaintiff testified to never receiving
surgery and only occasionally wearing a knee brace. (Id.). Additionally, she noted that her back
pain was only related to her job as a dishwasher. (R. at 52, 58-59). She reported being able to
stand for a sustained period of 2 to 3 hours before experiencing pain, and believed she could lift
50 pounds at once one time per day without pain. (R. at 59).
As to her asthma, Plaintiff said she had not visited a doctor for that purpose since her
diagnosis and only used medication to treat it during physical activity as needed. (R. at 57).
With respect to her migraine headaches, Plaintiff testified that she visited a neurologist for
treatment approximately once a year, but experienced them daily, some lasting all day. (R. at 5455, 60-61). Although unaware of a specific cause, she believed physical activity and noise made
them worse. (R. at 61). She admitted to using the CPAP machine to treat her sleep apnea, but
claimed she remained tired, sleeping through an entire day some days each week and awakening
only to eat and use the bathroom. (R. at 62-63). As to her hypothyroidism, Plaintiff reported
taking pills once per day though her condition did not change without the medication. (R. at 56).
Plaintiff described suffering depression for five years, which caused her to not want to be

18

“bothered by people.” (R. at 63). According to Plaintiff, she often had little energy and felt
worthless or guilty for no reason. (R. at 68). However, Plaintiff denied having thoughts of
suicide or of harming others. (R. at 69). Plaintiff also complained of a loss of appetite, claiming
to eat only one meal per day because she feels “no urge of eating.” (R. at 67-68).
Plaintiff denied dining out with her fiancé and reported they usually order takeout and eat
at home. (R. at 73). As to her home life, Plaintiff testified that her fiancé takes care of most of
the chores, except for one meal a day, which Plaintiff prepares. (R. at 64-65). When asked why
she does not engage in household activities, Plaintiff answered she does not “feel the urge” to do
chores; however, Plaintiff does occasionally pick up pieces of trash in her yard. (R. at 65).
Plaintiff claimed to previously enjoy riding bicycles, but that she was no longer able to do so as a
result of her conditions. (R. at 66). She testified to attending train shows two times per month
with her fiancé and that she belonged to the Allegheny Northern Railroad Club as its secretary,
though she claimed to have no actual role in the club and had not recently attended meetings. (R.
at 64). Plaintiff’s daily activities primarily consisted of painting model train houses and playing
simple computer games, and she occasionally spoke to family and friends on the phone for
approximately fifteen minutes at a time. (R. at 66-67).
Plaintiff provided testimony regarding her educational history, stating that she graduated
from high school where she took special education and food service courses. (R. at 48-49).
Plaintiff claimed to have trouble understanding newspapers, except for captions and headlines,
and testified that her fiancé takes care of her finances because she has trouble using a checkbook
and paying bills. (R. at 49-50). She described difficulty with counting and reading, illustrating
that she used her fingers to calculate and that at one point she was unable to understand words in
a “kindergarten book” she was reading to her niece. (R. at 72-73). Plaintiff also described

19

difficulty concentrating on television programs, claiming to only maintain interest in 2 out of 10
programs. (R. at 68-69). Further, she claimed that it takes her a week to paint a model train
house that her fiancé could complete in only two hours, as she is unable to concentrate on the
project. (R. at 70).
At the conclusion of Plaintiff’s testimony, the ALJ examined Ms. Montgomery by posing
hypothetical questions without regard to past work experience, since he found that Plaintiff had
none. (R. at 75-76). For his first hypothetical question, the ALJ began by asking Ms.
Montgomery to consider a person with Plaintiff’s age, education, training and work experience,
assuming a light maximum RFC that includes sedentary work; this person “must avoid
concentrated exposure to extreme heat, extreme cold, humidity, wetness, dust, fumes, odors,
gases, and poor ventilation,” and the work “should be simple, routine, low stress in nature, with
no deadlines or fast-paced production”; there should be no interaction with the public, no more
than occasional interaction with co-workers or supervisors, no teamwork jobs, and reading
should not be required. (Id.). Based on these limitations, he asked Ms. Montgomery if she could
suggest any light and sedentary jobs. (R. at 76).
Ms. Montgomery responded that, based upon the hypothetical, she could suggest the
following light, full-time positions: (1) a ticketer in a retail or warehouse setting, estimating a
national availability of over 575,000 jobs; (2) an inspector of products, such as plastics or metal,
with approximately 90,000 available; and (3) a small parts assembler, with over 105,000
available openings. (R. at 76). For his second hypothetical, the ALJ asked Ms. Montgomery if,
based on the same set of limitations, there would be any jobs at the sedentary level of work. (R.
at 77). She suggested: (1) a table worker, estimating that there were almost 90,000 of these jobs
available nationally; (2) an addresser/mail sorter, which she clarified did not involve reading

20

comprehension, only recognition, estimating there were about 47,000 openings; and (3) an
electrical electronic assembler, such as one of semiconductors, estimating over 200,000 jobs
were available nationally. (Id.). Finally, the ALJ inquired as to employers’ guidelines for being
on task, given Plaintiff’s testimony regarding focus and concentration. (R. at 77-78). Ms.
Montgomery replied that employment would be compromised if an individual were regularly and
consistently off task ten percent of the time. (R. at 78). As to absences, workers generally cannot
miss more than ten to fifteen days of work each year. (Id.). She added that, once trained, workers
in these positions would only require supervision, at most, occasionally. (Id.).
IV.

STANDARD OF REVIEW
To be eligible for disability benefits under the Act, a claimant must demonstrate to the

Commissioner that she cannot engage in substantial gainful activity because of a medically
determinable physical or mental impairment, which has lasted or can be expected to last for a
continuous period of at least twelve months, or which can be expected to result in death. 42
U.S.C. § 423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). To determine
whether a claimant has met the requirements for disability, the Commissioner must utilize a fivestep sequential analysis in reviewing the claim. 20 C.F.R. §§ 404.1520, 416.920.
The Commissioner must determine: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a
combination of impairments that is severe; (3) whether the medical evidence of the claimant's
impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., Pt.
404, Subpt. P, App’x. 1; (4) whether the claimant's impairments prevent her from performing
past relevant work; and (5) if the claimant is incapable of performing her past relevant work,
whether she can perform any other work which exists in the national economy. 20 C.F.R. §

21

404.1520(a) (4); see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is
determined to be unable to resume past relevant work, the burden shifts to the Commissioner at
Step Five to prove that, given the claimant’s mental or physical limitations, age, education, and
work experience, she is able to perform substantial gainful activity in jobs available in the
national economy. Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986).
Judicial review of the Commissioner’s final decisions on disability claims is provided by
statute and is plenary as to all legal issues. 42 U.S.C. §§ 405(g)26, 1383(c)(3)27; Schaudeck v.
Comm’r Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Section 405(g) permits a district court to
review the transcripts and records upon which a determination of the Commissioner is based; the
court will review the record as a whole. See 5 U.S.C. § 706. The district court must then
determine whether substantial evidence existed in the record to support the Commissioner’s
findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate” to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d
Cir.1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the Commissioner’s
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
When considering a case, a district court cannot conduct a de novo review, nor re-weigh
the evidence of record; the court can only judge the propriety of the decision in reference to the
grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel, 995
26

Section 405(g) provides in pertinent part: “Any individual, after any final decision of the [Commissioner]
made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such
decision by a civil action… brought in the district court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business.” 42 U.S.C. § 405(g).
27
Section 1383(c)(3) provides in pertinent part: “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this
title to the same extent as the Commissioner’s final determinations under section 405 of this title.” 42 U.S.C. §
1383(c)(3).

22

F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97 (1947). The
court will not affirm a determination by substituting what it considers to be a proper basis.
Chenery, 332 U.S. at 196-97. Further, “even where this court acting de novo might have reached
a different conclusion… so long as the agency’s factfinding is supported by substantial evidence,
reviewing courts lack power to reverse either those findings or the reasonable regulatory
interpretations that an agency manifests in the course of making such findings.” Monsour
Medical Center v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
V.

DISCUSSION
The ALJ issued his decision on December 8, 2010, concluding that Plaintiff retained the

residual functional capacity to perform light to sedentary work and that there were a significant
number of representative jobs available in the national economy which she could perform. (R. at
24-36). The ALJ first acknowledged that Plaintiff satisfied Step One of the analysis because she
had not been engaged in substantial gainful activity since her application date of March 9, 2009
(20 C.F.R. § 416.971 et seq.). (R. at 26). At Step Two, the ALJ found that Plaintiff’s obesity,
asthma, left knee patellar chondromalacia with infrapatellar synovitis, recurrent major depressive
disorder, and a learning disability related to reading were medically determinable severe
impairments, pursuant to 20 C.F.R. § 416.920(c). (R. at 26). However, he found that Plaintiff’s
stomach hernia, migraines, thyroid disorder, sleep apnea, low back pain, left ankle sprain from
November 2006 were nonsevere impairments. (R. at 26-27). In making this determination, he
found that there was no evidence these additional conditions had caused any significant
complications or work-related limitations to Plaintiff, nor had they required frequent inpatient
hospital confinement or emergency room care.

23

(Id.). As a result, the ALJ decided these

additional impairments, individually and in combination, did not have more than a minimal
impact on Plaintiff’s ability to work. (R. at 27).
At Step Three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments meeting or exceeding one of the listings in 20 C.F.R. Pt. 404, Subpt.
P, App’x 1, 20 C.F.R. §§ 416.920(d), 416.925, and 416.926. (R. at 27-28). In reaching his
decision, the ALJ found that the medical evidence did not contain the objective signs, symptoms
or findings, or the degree of functional limitations necessary for any of Plaintiff’s physical or
mental impairments, singly or in combination, to meet or equal the severity of a listing. (R. at
28). The ALJ noted that he considered Plaintiff’s obesity in accordance with SSR 02-01 in
making this determination, but concluded it did not have a significant impact on her other body
systems or significantly affect her ability to ambulate. (Id.). He relied on opinions from the state
agency medical consultants, as well as the medical records, finding that no treating or examining
medical source has stated that Plaintiff has an impairment or combination of which that could
meet or equal a listing. (Id.). Further, he added that the evidence shows Plaintiff lives
independently and does not rely on anyone else for her personal care, there was no evidence that
she demonstrated sub-average general intellectual functioning before age 22, and nor was there
evidence of any valid IQ score of 70 or less. (R. at 30).
Moving to an evaluation of Plaintiff’s residual functional capacity, the ALJ found that,
considering the record in its entirety, she retained the ability to perform light work as defined in
20 C.F.R. § 416.967(b), subject to certain restrictions. (R. at 30). Here, he considered the
objective medical evidence concerning each of Plaintiff’s impairments. (R. at 31). Additionally,
he considered Plaintiff’s subjective complaints in accordance with SSR 96-7p and 20 C.F.R. §
416.929, and found that her medically determinable impairments could reasonably be expected

24

to cause the alleged symptoms, but that her statements concerning the intensity, persistence, and
limiting effects of her alleged symptoms were not credible to the extent that they were
inconsistent with the residual functional capacity assessment. (R. at 32). The ALJ noted
Plaintiff’s July 2009 GAF score of 50, indicative of serious symptoms or impairments in social,
occupational, or school functioning. (R. at 34). However, pursuant to SSR 96-5 and 20 C.F.R. §
416.927, he concluded that the totality of the evidence did not support placing controlling weight
on Dr. Bridges’ opinion because it was inconsistent with the other evidence of record,
particularly the opinions of Dr. Peske and the State Agency medical consultants. (R. at 34-35).
Accordingly, as Plaintiff had no past relevant work, at Step Four the ALJ decided that Plaintiff
retained the ability to perform work at the light exertional level. (R. at 30, 35). At Step Five, the
vocational expert identified a number of light and sedentary jobs someone with Plaintiff’s
limitations could perform. (R. at 35-36). Thus, the ALJ found Plaintiff not disabled within the
meaning of the Act. (Id.).
Plaintiff argues that summary judgment in her favor is proper because the ALJ’s decision
was not based upon substantial evidence. (Docket No. 9 at 4). Specifically, she claims that the
ALJ erred at Step Three “by failing to do an analysis of Plaintiff’s obesity in combination with
her sleep apnea” under Listing 3.10, pertaining to Sleep-Related Breathing Disorders. (Id. at 3).
Additionally, Plaintiff contends that “[t]he ALJ did not properly evaluate Plaintiff’s obesity” in
combination with her sleep apnea, “borderline intellectual functioning,” depression, “moderate
impairments in pace,” and “severe migraine headaches” when making his residual functional
capacity assessment. (Id. at 4). Further, she alleges that “[t]he vocational expert’s opinions that
the Plaintiff can do alternate sedentary and light duty work are not based upon substantial
evidence.” (Id. at 3). She claims that the ALJ erred in his hypothetical “by not including all of

25

the Plaintiff’s impairments in his hypothetical question” and “concerning Plaintiff’s moderate
limitations with regard to concentration, persistence, or pace.” (Id. at 3-4).
In response, Defendant asserts that substantial evidence supports the Commissioner’s
finding that Plaintiff could perform a range of unskilled, light work, and is therefore not disabled
under the Act. (Docket No. 11). Because Plaintiff presents a flurry of disorganized contentions in
the Arguments portion of her Brief, the Court will address the ascertainable issues as they
sequentially fall in the five-step analysis.
A. Listings Determination
“For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)
(emphasis in original) (quoting Sullivan v. Zebley, 493 U.S. 521 (1990)). In a case of obesity, an
ALJ is required to “meaningfully consider the effect of a claimant’s obesity, individually and in
combination with her impairments, on her workplace function at step three and every subsequent
step.” Diaz v. Comm’r of Soc. Sec., 755 F.3d 500, 504 (3d Cir. 2009). In performing a listings
analysis of a claimant’s obesity, the ALJ must remember: “the combined effects of obesity with
other impairments can be greater than the effects of each of the impairments considered
separately.” SSR 02-1p at 1 (emphasis added). However, while “[o]besity is a risk factor that
increases an individual’s chances of developing impairments in most body systems… [t]he fact
that obesity is a risk factor for other impairments does not mean that individuals with obesity
necessarily have any of these impairments.” Id. at 3 (emphasis added).
Plaintiff argues that the ALJ erred at Step Three of the analysis by finding that she does
not have an impairment or combination of impairments that meets or medically equals one of the

26

listings under 20 C.F.R. Pt. 404, Subpt. P, App’x 1. (Docket No. 9 at 6). Specifically, she
contends that the ALJ failed to consider the effects of her obesity on her respiratory system under
Listing 3.10, Sleep Related Breathing Disorders. (Id.). According to Plaintiff, “the ALJ neither
specifically identified Listing 3.10 nor analyzed Plaintiff’s sleep apnea in combination with
obesity to determine whether it meets or is equivalent to that Listing.” (Id. at 8). The Court
agrees with Defendant that “[t]here is no merit to this contention.” (Docket No. 11 at 10). First,
as Defendant correctly points out, the ALJ specifically indicated that none of Plaintiff’s
impairments met or equaled the severity of any subsection of §§ 1.00, 3.00, or 12.00. (R. at 28,
emphasis added; see Docket No. 11 at 10). Because Listing 3.10 is a subsection of Section 3.00,
it was adequately identified by the ALJ when deciding that Plaintiff’s impairments did not meet
or equal any of the listings. Nevertheless, Plaintiff could not meet or exceed either of the
conditions falling under Listing 3.10, which directs an evaluation under “3.09 (chronic cor
pulmonale) or 12.02 (organic mental disorders).” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §3.10. To
meet Listing 3.09 Cor pulmonale secondary to chronic pulmonary vascular hypertension,
“clinical evidence of cor pulmonale” must be accompanied by: A.) Mean pulmonary artery
pressure greater than 40 mm Hg; or, B.) Arterial hypoxemia. Id. at §3.09 (emphasis added). As
for Listing 12.02, “History and physical examination or laboratory tests demonstrate the presence
of a specific organic factor to be etiologically related to the abnormal mental state and loss of
previously acquired functional abilities.” Id. at §12.02.
Plaintiff points to the Introduction to Section 3.00 at Subparagraph H, concerning sleep
apnea, arguing, “[w]hen gainful work is precluded, the physiologic basis for the impairment may
be chronic cor pulmonale” and “[i]mpairment of cognitive function may be evaluated under
organic mental disorders.” (Docket No. 9 at 6-7 (quoting 20 C.F.R. Pt. 404, Subpt. P, App’x 1,

27

§3.00H)). Indeed, sleep apnea may cause chronic cor pulmonale or an organic disorder. See Id.
However, there is no medical evidence that Plaintiff has chronic cor pulmonale or an organic
mental disorder. As the ALJ noted at Step Two: “Although [Plaintiff] was diagnosed with a sleep
disorder in June 2008, in August 2008 Dr. Bharat Jain, a treating pulmonologist, reported that
[Plaintiff] was using a CPAP machine and her condition was improved.” (R. at 27). When a
second nocturnal polysomnography with CPAP Titration was performed later that month,
Plaintiff reported sleeping worse than usual and that she felt awake but not alert. (R. at 502).
Plaintiff was again prescribed CPAP treatment. (R. at 503). Following Plaintiff’s follow-up
appointment with Dr. Jain on April 13, 2009, he wrote that she “was exposed to significant hay
and was experiencing significant rhinitis and difficulty breathing with cough.” (R. at 497). It is
noted that Dr. Jain continued Plaintiff’s treatment with CPAP and prescribed her Singulair to
treat her allergies. (R. at 497). Additionally, in 2010, Plaintiff reported on two occasions that she
was sleeping approximately eight hours a night. (R. at 601, 604). Thus, substantial evidence
supports the ALJ’s finding that Plaintiff’s sleep apnea was a nonsevere medically determinable
impairment, neither alone nor in combination with another, medically equivalent to a listing.
Additionally, the Court finds that the medical evidence substantially supports the ALJ’s
determination that, although Plaintiff’s obesity was a severe impairment, it did not have a
significant impact on her other body systems or significantly affect her ability with ambulation,
mobility or manipulation. Under the Regulations, the ALJ “will not make assumptions about the
severity or functional effects of obesity combined with other impairments,” but “will evaluate
each case based on the information in the case record.” SSR 02-1p at 5. The ALJ plainly states
he “considered the claimant’s obesity in accordance with SSR 02-1 and… determined it does not
have a significant impact on her other body systems or significantly affect her ability with

28

ambulation, mobility or manipulation.” (R. at 28). Accordingly, the ALJ’s decision that
Plaintiff’s obesity did not satisfy all criteria required to meet or exceed a listing, including
Listing 3.00, is supported by substantial evidence.
Because Plaintiff’s impairments do not satisfy the requisite criteria to match any listing,
Williams directs the Court to agree with Defendant that “[n]either of these sections [under
Listing 3.10] of the listings are applicable to Plaintiff because she has neither condition.”
(Docket No. 11 at 10); see Williams, 970 F.2d at 1186. Thus the ALJ’s finding that Plaintiff’s
obesity alone or in combination with her sleep apnea was insufficient to meet or equal a listing is
supported by substantial evidence. SSR 02-1p at 5.
B. RFC Determination
Additionally, Plaintiff contends, “The ALJ did not properly evaluate Plaintiff’s obesity”
in combination with her sleep apnea, “borderline intellectual functioning,” depression, “moderate
impairments in pace,” and “severe migraine headaches” when making his residual functional
capacity assessment. (Docket No. 9 at 4). “Residual functional capacity is defined as that which
an individual is still able to do despite the limitations caused by his or her impairment(s).”
Burnett v. Commissioner of Social Security, 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft
v. Apfel, 181 F.3d 358, 359, fn. 1 (3d Cir. 1999)); see also 20 C.F.R. §404.1545(a). “An ALJ
must consider all relevant evidence when determining an individual’s RFC. 20 C.F.R. §
404.1545(a); Burnett, 220 F.3d at 121. This evidence includes “medical records, observations
made during formal medical examinations, descriptions of limitations by the claimant and others,
and observations of the claimant’s limitations by others.” Fargnoli v. Halter, 247 F.3d 34, 41 (3d
Cir. 2001). An individual claimant’s residual functional capacity is an administrative
determination expressly reserved to the Commissioner. 20 C.F.R. § 416.927(c)(2). The ALJ’s

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finding of residual functional capacity must be “accompanied by a clear and satisfactory
explication of the basis on which it is based.” Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris,
642 F.2d 700 (3d Cir. 1981)).
Here, the ALJ found that Plaintiff has the RFC to perform light work as defined in 20
C.F.R §416.967(b) except she:
must avoid concentrated exposure to extreme heat, extreme cold, humidity,
wetness, dust, fumes, odors, gases, and poor ventilation. In addition, [she] is
limited to simple, routine, low stress tasks with no deadlines or fast-paced
production. Moreover, [she] must avoid teamwork-type jobs and is limited to no
interaction with the public and only occasional interaction with coworkers and
supervisors. Finally, [she] is limited to jobs that do not require reading
comprehension. (R. at 30).
The ALJ asserts that he considered “all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence” as
well as “opinion evidence” in accordance with 20 C.F.R. §416.927 and Social Security
Regulations. (R. at 30). In analyzing Plaintiff’s residual functional capacity, the ALJ noted that
the state agency psychologists28 concluded she “retained the ability to meet the basic mental
demands of competitive work on a sustained basis notwithstanding her condition.” (R. at 34).
Additionally, he considered the opinions of the state agency medical consultants, who
determined that Plaintiff was capable of performing work at the sedentary to light duty level. (R.
at 35).
“RFC does not represent the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8p at 2. To qualify for “light work” under the Act, the critical
test is not whether Plaintiff can lift a maximum of 20 pounds once in awhile; the test is whether

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“State agency physicians and psychologists are considered to be ‘highly qualified physicians and
psychologists who are also experts in Social Security disability evaluation,’ and the ALJ must consider their findings
as opinion evidence.” Poulous v. Comm’r of Soc. Sec. Admin., 474 F.3d 88, 93, fn. 2 (3d Cir. 2007) (quoting 20
C.F.R. §§ 404.1527(f) and 416.927(f)).

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Plaintiff can frequently lift up to 10 pounds. 20 C.F.R. § 404.1567(b). The ALJ points to
Plaintiff’s March 2006 Function Report, in which she reported her ability to lift and carry 20
pounds and walk 2 miles, as well as Dr. Wong’s treatment records, noting that Plaintiff reported
taking long walks. (R. at 32). The ALJ also relied on Plaintiff’s testimony, in which she reported
being able to stand for 2 to 3 hours at a time, sit 2 hours at a time, and lift something weighing 50
pounds, in addition to her testimony regarding her daily activities. (Id.).
In support of her argument that the ALJ erred in his residual functional capacity
assessment by “fail[ing] to consider Plaintiff’s nonexertional limitations caused by her obesity in
combination with her sleep apnea,” Plaintiff cites to Poulous v. Comm’r of Soc. Sec. Admin., 474
F.3d 88 (3d Cir. 2007). (Docket No. 9 at 9). It is unclear on which basis Plaintiff grounds her
contention that the ALJ’s decision is “contrary to Poulous,” but she goes on to say that her
“severe obesity condition should have been submitted to the vocational expert for her
consideration about Plaintiff’s ability to do less than the full range of sedentary and light work.”
(Id.). Therefore, the Court can best ascertain Plaintiff’s allegation regarding the residual
functional capacity assessment of her obesity as one intended to support her argument regarding
the insufficiency of the hypothetical question.29 Still, we will pause to address this claim here,
since it overlaps at both steps of the analysis, and to distinguish Poulous.
Poulous was remanded, in part, based on the Court’s finding that reliance on the MedicalVocational Guidelines (“grids”) in the presence of the claimant’s nonexertional limitations
“constitutes reversible error…” Poulous, 474 F.3d at 93-94. However, Plaintiff’s reliance on
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“[O]bjections to the adequacy of hypothetical questions posed to a vocational expert often boil down to
attacks on the RFC assessment itself. That is, a claimant can frame a challenge to an ALJ’s reliance on vocational
expert testimony… that the testimony cannot be relied upon because the ALJ failed to recognize credibly established
limitations during the RFC assessment and so did not convey these limitations to the vocational expert. Challenges
of [this] variety… are best understood as challenges to the RFC assessment itself.” Rutherford v. Barnhart, 399 F.3d
546, 554, fn. 8 (3d Cir. 2005).

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Poulous is misplaced; there, the ALJ “summarily concluded” that the obese claimant, who
needed special chairs to support his weight, would not be disabled from performing sedentary
work, “based solely on [the ALJ’s] own opinion,” and with “no evidence supporting the ALJ’s
conclusion.” Poulous at 94-95. In contrast, here, the ALJ’s determination regarding Plaintiff’s
nonexertional limitations is supported by substantial evidence, including vocational testimony.
Id. In Poulous, the record was “not fully developed” because of the lack of vocational evidence,
whereas here, Plaintiff was “provid[ed]… with an opportunity to see the evidence on which the
ALJ relie[d] and with an opportunity to challenge the ALJ’s conclusion.” Id. at 95 (referencing
Sykes v. Apfel, 228 F.3d 259, 273). Further, in Poulous, the claimant faced a job-related
limitation in that he could not sit on chairs built for a person of average weight; here, there are no
medically established limitations with respect to Plaintiff’s obesity on her ability to perform
work.
Though Plaintiff only mentions her sleep apnea cursorily when contesting the residual
functional capacity assessment, it is worth noting that the ALJ did, in fact, include a restriction
that Plaintiff “must avoid concentrated exposure to extreme heat, extreme cold, humidity,
wetness, dust, fumes, odors, gases, and poor ventilation.” (R. at 30; see also Docket No. 9 at 9).
Since Dr. Jain attributed Plaintiff’s sudden sleep disruptions to “significant hay and… significant
rhinitis,” as discussed, the ALJ’s environmental limitation was appropriate. (R. at 457).
Moreover, the environmental limitation takes into account the opinions of the state agency
physicians, which limited Plaintiff to avoiding concentrated exposure to “extreme cold, extreme
heat, wetness, humidity, and fumes.” (R. at 368 and 377). With this observation in mind,
Plaintiff’s allegation that the ALJ “downplayed the severity of Plaintiff’s migraine headaches” is
also defeated. (Docket No. 9 at 10). Dr. Peske considered Plaintiff’s complaints regarding her

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headaches and also determined that they were likely caused by exposure to environmental
conditions. (R. at 457, 362). As addressed, in his medical source opinion from 2007, Dr. Peske
noted that Plaintiff “describes a few frontal side and back headaches” that “seem… to be
triggered by different odors.” (R. at 362). When Plaintiff saw him in September 2008 for a
headache in her right temporal area and around her eyes, Dr. Peske diagnosed her with allergic
rhinitis and prescribed her Nasonex nasal spray and Loratidine. (R. at 430).
Furthermore, substantial evidence supports the ALJ’s decision that Plaintiff’s “moderate
difficulties” with respect to concentration, persistence, or pace would not preclude her from
performing light duty work. “A cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight.” Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000). More weight should be given to the opinions of a treating physician because
“these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations.” Fargnoli, 247 F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). The Third
Circuit has consistently held that the “treating physician’s opinion may be rejected only on the
basis of contradictory medical evidence, although the opinion may be accorded more or less
weight depending upon the extent to which supporting explanations are provided.” Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
The ALJ gave significant weight to the opinions of Plaintiff’s primary care physician, Dr.
Peske, because “he examined [her] frequently and had a longitudinal understanding of [her]
condition.” (R. at 35). “Where a treating source’s opinion on the nature and severity of a

33

claimant’s impairments is ‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the
claimant’s] case record,’ it will be given ‘controlling weight.’” Fargnoli at 43 (quoting Cotter,
642 F.2d at 704)). Dr. Peske stated in his 2007 medical source opinion that Plaintiff is “not
disabled” but she had been seen “quite frequently for various impairments.” (R. at 359). When
Plaintiff visited Dr. Peske on January 23, 2009 with a temporary disability form in hand, he
declined to complete it, stating there was “no cause for disability.” (R. at 426). In comparison to
Dr. Peske’s opinion, the ALJ gave less weight to the opinion of Dr. Bridges, as it was based on
“only one encounter” with Plaintiff and “does not reflect a longitudinal understanding of her
condition.” (R. at 34). Nevertheless, the ALJ determined that the state agency physicians’
opinions were more credible than that of Dr. Bridges, noting, “no other treating or examining
medical source of record has found the degree of limitation endorsed by Dr. Bridges.” (R. at 34).
Both Dr. Heil and Dr. Rattan concluded that despite Plaintiff’s limitations in understanding,
carrying out, and remembering detailed instructions, she was still able to meet the basic mental
demands of competitive work on a sustained basis, taking Dr. Peske’s opinion into account. (R.
at 372-74, 559-561). Further, the Court concurs that Plaintiff’s self-reported activities “are
inconsistent with an individual experiencing totally debilitating symptomatology.” (R. at 32).
Thus, the ALJ was entitled to give great weight to Dr. Peske’s opinion and less weight to that of
Dr. Bridges because his “is inconsistent with the totality of the evidence.” (R. at 34).
In Cotter, the Court held that “[t]he ALJ has a duty to hear and evaluate all relevant
evidence in order to determine whether an applicant is entitled to disability benefits.” Cotter at
704. “Although the ALJ may weigh the credibility of the evidence, he must give some indication
of the evidence he rejects and his reason(s) for discounting that evidence.” Fargnoli at 43. He

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must make enough factual findings so that the reviewing court has the ability to determine if
“significant probative evidence was not credited or simply ignored.” Id. at 42. Where a medical
impairment that could reasonably cause the alleged symptoms exists, however, the ALJ must
evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects
the individual’s ability to work. Hartranft, 181 F.3d at 362. An ALJ must give great weight to a
claimant’s subjective description of his or her inability to perform even light or sedentary work
when his or her testimony is supported by competent evidence. Shaudeck v. Comm’r of Soc. Sec.
Admin., 181 F.3d 429, 433 (3d Cir. 1999) (citing Dobrowolsky v. Califano, 606 F.2d 403, 409
(3d Cir. 1979)). This requires the ALJ to determine the extent to which a claimant is accurately
stating the degree of pain or the extent to which he or she is disabled by it. See 20 C.F.R. §
404.1529(c). If an ALJ concludes that the claimant’s testimony is not credible, the specific basis
for such a conclusion must be indicated in his or her decision. Cotter at 705. Ordinarily, courts
defer to an ALJ’s credibility determination because he or she has the opportunity at a hearing to
assess the witness’s demeanor. Reefer v. Barnhart, 326 F.3d 376 (3d Cir. 2003).
That standard is met here because the ALJ heard and evaluated all relevant evidence and
adequately explained the reasoning behind his credibility determinations, including Plaintiff’s
demeanor at the hearing demonstrating her ability “to respond to all questions asked… in an
appropriate manner with no overt lapses in concentration.” (R. at 29). The ALJ found that
Plaintiff’s medically determinable impairments “could reasonably be expected to cause the
alleged symptoms.” (R. at 32). However, he also determined that her statements concerning
intensity, persistence and limiting effects were not credible to the extent they were inconsistent
with the residual functional capacity assessment, discussed above. (Id.). Thus, substantial

35

evidence adequately supports the ALJ’s determination with respect to Plaintiff’s residual
functional capacity to perform work, subject to the medically established limitations.
C. Hypothetical Question
If a claimant has satisfied Step Four, the burden shifts to the ALJ at Step Five to show
that there are a significant number of jobs available in the national economy that the claimant
could perform. 20 C.F.R. § 404.1566(a). “Advisory testimony from a vocational expert is often
sought by the ALJ for that purpose.” Rutherford, 399 F.3d at 551 (citing Plummer, 186 F.3d at
428). This testimony “typically includes, and often centers upon, one or more hypothetical
questions posed by the ALJ to the vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218
(3d Cir. 1984). Normally, a hypothetical question asks the expert to assume a person has certain
physical capabilities, is able to do certain jobs, and the extent to which such jobs exist in the
national economy; to be considered for purposes of determining disability, the question must
accurately portray “the claimant’s individual physical and mental impairments.” Podedworny,
745 F.2d at 218.
The Court of Appeals has held that a hypothetical question “must reflect all of a
claimant’s impairments.” E.g. Rutherford at 554; Burns, 312 F.3d at 123; Chrupcala v. Heckler,
829 F.2d 1269, 1276 (3d Cir. 1987). However, Rutherford cautions that this requirement not be
misinterpreted: “all” of a claimant’s impairments should be read as those that are accurately
portrayed by the record. Rutherford at 554. Plaintiff argues that it was error for the ALJ to not
include “all of [her] impairments in his hypothetical questions to the vocational expert.” (Docket
No. 9 at 3). However, Plaintiff’s argument fails because the ALJ has no duty to include all of a
claimant’s impairments in a hypothetical question; the ALJ must only include those that are
medically established. Rutherford at 554. “And that in turn means that the ALJ must accurately

36

convey to the vocational expert all of a claimant’s credibly established limitations.” Id. (citing
Plummer, 186 F.3d at 431). For the following reasons, the Court finds that the ALJ’s question to
the vocational expert accurately encompassed all of Plaintiff’s medically established limitations.
Plaintiff claims that the ALJ’s decision is not based upon substantial evidence because he
“failed to submit questions concerning Plaintiff’s illiteracy and borderline intellectual
functioning to the vocational expert for her consideration.” (Docket No. 9 at 3-4). The
Commissioner responds that Plaintiff is “mistaken in this contention,” as the ALJ considered her
illiteracy and history of special education “when he included in the hypothetical question a
specific limitation that did not require reading… and a limitation to simple, routine, unskilled
work that involved low stress and no fast-paced production.” (Docket No. 11 at 8). The Court
will first address Plaintiff’s reading limitation, since it is the most easily disposed of.
There is simply no merit to Plaintiff’s contention that her “illiteracy” was left out of the
hypothetical. (Docket No. 9 at 10). The record unequivocally reflects that the ALJ addressed
Plaintiff’s reading limitation in his question to the vocational expert. (R. at 30, 76). Puzzlingly,
Plaintiff herself acknowledges that the ALJ’s question included a stipulation that Plaintiff be
limited to jobs with no reading, as she cites to this exception in her Brief: “With regard to the
Plaintiff’s mental impairments, the ALJ found that… the Plaintiff is limited to jobs that do not
require reading comprehension. (R. at 30).” (Docket No. 9 at 13). As to her allegation regarding
her “borderline intellectual functioning,” there is no such diagnosis in the record, and to
characterize her limitation of a “learning disability” as such would go against the credibly
established medical evidence. Rutherford at 554. Specifically, her Brief references Plaintiff’s
testimony regarding special education classes, adding that school records show she was in
“learning disabled classes.” (Docket No. 9 at 10). However, the evidence does not support a

37

finding that Plaintiff’s history of special education affects her ability to perform unskilled work,
subject to the limitations established by the record. Returning to the Court’s reasoning behind the
rejection of Plaintiff’s earlier arguments regarding the Listings and RFC, no physician of record
has stated that Plaintiff is disabled, nor has any indicated that Plaintiff is unable to work. On the
contrary, Dr. Peske noted in his 2009 report that Plaintiff seems to suffer from a lack of
motivation, rather than an inability to hold a job. (R. at 545). Moreover, the state agency
psychologists noted that Plaintiff’s limitations with regard to concentration, persistence, or pace
would not prevent her from meeting the basic mental demands of competitive work on a
sustained basis, despite the moderate limitations resulting from her impairments. (R. at 374,
561). As discussed, the ALJ was entitled to make the credibility determination to place less
weight on the opinion of Dr. Bridges because of its inconsistency with the totality of the
evidence. However, even Dr. Bridges found that Plaintiff was able to meet the mental demands
of understanding, remembering, and following short, simple instructions and making simple
work-related decisions. (R. at 557). These restrictions were included in the ALJ’s hypothetical
when he included a limitation of “simple, routine, low stress tasks with no deadlines or fastpaced production.” (R. at 30). As for Plaintiff’s “moderate limitations” with respect to interacting
with the public, coworkers, and supervisors, the ALJ included an exception that there be no
“teamwork-type” work and “no interaction with the public and only occasional interaction with
coworkers and supervisors.” (R. at 30; see also R. at 557).
Incorporated in Plaintiff’s argument regarding the residual functional capacity assessment
with respect to her obesity is that her “severe obesity condition should have been submitted to
the vocational expert for her consideration about Plaintiff’s ability to do less than the full range
of light and sedentary work.” (Docket No. 9 at 9 (citing SSR 02-1p)). Because Plaintiff’s residual

38

functional capacity to perform light and sedentary work is supported by substantial evidence, it
follows under Rutherford that the ALJ’s hypothetical question should have included all credibly
established limitations. Rutherford at 554. Turning to the record, the ALJ clearly included all of
Plaintiff’s medically established limitations in his hypothetical question. The ALJ states, “[i]f the
claimant had the residual functional capacity to perform the full range of light work, a finding of
‘not disabled’ would be directed…” (R. at 36). However, he stipulates to the medically
established limitations that “impede” Plaintiff’s ability to perform the full range of light work.
(Id.). Therefore, he asked the vocational expert hypothetical questions “to determine the extent to
which these limitations erode the unskilled light occupational base” considering Plaintiff’s age,
education, work experience, and residual functional capacity. (Id.).
The hearing transcript reflects the fact that the ALJ determined Plaintiff’s residual
functional capacity based on the medically established evidence. (R. at 75-76). He asked the
vocational expert to consider a person who, in addition to Plaintiff’s age, education, training and
work experience had the residual functional capacity to perform light work, except that she must
avoid concentrated exposure to extreme heat, extreme cold, humidity, wetness, dust fumes,
odors, gases, and poor ventilation. (Id.). This hypothetical was supported by the environmental
limitations established in her residual functional capacity assessments, as well as the medical
evidence of Plaintiff’s asthma and allergies. (Id.). Further, the limitation of simple, routine, low
stress work without deadlines or fast-paced production adequately encompassed Plaintiff’s
medically determinable learning disability. (Id.). The restriction of “no interaction with the
public and no more than occasional interaction with co-workers or supervisors, and no
teamwork” further supported Plaintiff’s claims regarding mild limitations on her social

39

functioning. (Id.). And, as addressed, a requirement of “no reading” was included to address
Plaintiff’s claim that she was illiterate. (Id.).
As a final note, Plaintiff’s characterization of the vocational expert’s testimony as
“opinions that the Plaintiff can do alternate sedentary and light duty work” is incorrect. (Docket
No. 9 at 3). The vocational expert does not render an opinion regarding a claimant’s capacity for
work; the expert presents testimony on which an ALJ may rely in the ALJ’s determination of
whether a claimant can work. “The vocational expert’s testimony… in response to a hypothetical
that fairly set forth every credible limitation established by the physical evidence… can be relied
upon as substantial evidence supporting the ALJ’s conclusion [that the claimant is not disabled].”
Plummer, 186 F.3d at 431 (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)).
Where the vocational expert testifies that the claimant is capable of performing work, and that
those jobs exist in significant numbers, “[t]his satisfies the ALJ’s burden of establishing there are
jobs available which the claimant can perform given her ‘severe’ disability.” Plummer at 431; 20
C.F.R. § 404.1566(a). Here, the vocational expert’s testimony “fairly set forth every credible
limitation” established by the evidence where she identified jobs existing in significant numbers
that a person with Plaintiff’s limitations could perform. Thus, the ALJ satisfied his burden at
Step Five of the analysis. As a result, the Court finds that the decision of the Commissioner is
supported by substantial evidence.
VI.

CONCLUSION
Based on the foregoing, the decision of the ALJ is adequately supported by substantial

evidence from Plaintiff's record within the meaning of 42 U.S.C. § 405(g). Therefore, Plaintiff’s
Motion for Summary Judgment is DENIED and Defendant’s Motion for Summary Judgment is

40

GRANTED. Accordingly, the decision of the Commissioner is AFFIRMED. Appropriate Orders
follow.

s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge

Date:

September 14, 2012

cc/ecf:

All counsel of record.

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