GROSSKINSKY v. ASTRUE

Filing 17

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 3/19/14. (jad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARIANN BETH GROSSKINSKY,
Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Civil Action No. 12-1348
Judge Mark R. Hornak

MEMORANDUM OPINION
Mark R. Hornak, United States District Judge,
I.

INTRODUCTION

Mariann Beth Grosskinsky ("Plaintiff') brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final determination of the Commissioner of Social Security ("Defendant"
or "Commissioner") denying her application for disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401 - 433, 1381 - 1383f ("Act").

This matter comes before the Court on cross

motions for summary judgment. (ECF Nos. 9, 12). The record has been developed at the
administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment will
be DENIED, and Defendant's Motion for Summary Judgment will be GRANTED.

II.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on March 11, 2009, claiming a disability onset of
August 15, 2007. (R. at 208 - 17) 1• Plaintiff claimed that her inability to work was a result of
functional limitation stemming from "back and neck pain." (R. at 230). Plaintiff was initially
denied DIB and SSI on May 1, 2009. (R. at 116- 24). A hearing was scheduled for September
8, 2010, and Plaintiff testified, represented by counsel. (R. at 41 - 78). A vocational expert was
also present to testify, as was Plaintiffs mother. (R. at 41 - 78). The Administrative Law Judge
("ALJ") issued her decision denying benefits to Plaintiff on October 28, 2010. (R. at 24- 40).
Plaintiff filed a request for review of the ALJ's decision by the Appeals Council, which request
was denied on July 18, 2012, thereby making the decision of the ALJ the final decision of the
Commissioner. (R. at 1 - 3).
Plaintiff filed her Complaint m this Court on September 25, 2012.

(ECF No. 3).

Defendant filed an Answer on December 20, 2012. (ECF No. 5). Cross motions for summary
judgment followed. The matter has been fully briefed. (ECF Nos. 10, 13, 15, 16).

III.

STATEMENT OFF ACTS

A. General Background

Plaintiff was born on May 30, 1985, was twenty-two years of age at the time of her
application for benefits, and was twenty-five years of age at the time of the ALJ's decision. (R.
at 226). Plaintiff graduated from high school and received an Associate's Degree to work as a
veterinary technician. (R. at 234). Plaintiffs past relevant work included positions as a cashier,
kennel worker in a veterinary hospital, and veterinary technician in a veterinary hospital. (R. at
231). Plaintiff lived in a house with her fiance and two-and-one-half year old daughter. (R. at
46). Plaintiffs mother lived in an adjacent house. (R. at 62). Plaintiff stayed at home to care for
Citations to ECF. Nos. 6- 6-14, the Record, hereinafter, "R. at_."

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her daughter following her last period of employment, and subsisted on her fiance's income. (R.
at34, 131).
In a self-report of functional abilities completed by Plaintiff for the purpose of her
application for benefits, Plaintiff indicated that she was her daughter's primary caretaker, she
cleaned her residence, she prepared three complete meals per day, she went shopping, she
cleaned the laundry, she could walk approximately one mile before needing rest, she drove
independently, she spent at least four hours per day outside her horne, and she paid her bills and
handled her checking/savings accounts. (R. at 245 - 48). Plaintiff also made meals for her
fiance, and cared for two cats. (R. at 246). Plaintiff had no issues with self-care. (R. at 246).
Plaintiff averred that she had daily pain in her back following her pregnancy with her
daughter. (R. at 253). Activity worsened the pain. (R. at 253). She stated that her pain woke
her up multiple times throughout the night. (R. at 246). She had to sit in certain positions to
watch television, and she had to limit playtime with her daughter. (R. at 249). However, at that
time, Plaintiff did not take any pain medications. (R. at 254). She had sought treatment from a
chiropractor, but had not attempted physical therapy or treatment with a psychiatrist or
psychologist. (R. at 254 ).
Plaintiff indicated that she became easily irritated with other people. (R. at 250). Yet,
Plaintiff did not need reminders to go places, she did not require accompaniment to go shopping
or attend appointments, she could pay attention for "long periods of time," she finished what she
started, she followed instructions "very well," she got along well with authority figures, and she
had never lost a job due to problems getting along with other people. (R. at 250 - 51). Plaintiff
handled changes in routine "pretty well," and handled stress "as best as possible." (R. at 251 ).

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B. Treatment History
Plaintiff began treating with primary care physician Hugh Shearer, D.O. on September
25, 2008. (R. at 274). Plaintiffs initial complaints included depression, lack of motivation,
sadness, crying, and sleepiness. (R. at 274). She claimed that anti-depressants had not been
helpful for depressive symptoms in the past. (R. at 274). Plaintiff also described experiencing
back pain in the area of her thoracic spine that started during her pregnancy six months earlier,
but had not improved. (R. at 274). Upon examination, Dr. Shearer observed some tenderness in
the mid thoracic spine and paraspinal muscles, but no spasm. (R. at 274). Plaintiff also had
intact reflexes. (R. at 274). Dr. Shearer prescribed Celexa and Naprosyn. (R. at 274).
At a follow-up with Dr. Shearer on October 17, 2008, Plaintiff continued to complain of
back pain and issues with crying spells and mood swings. (R. at 273). Upon examination, Dr.
Shearer noted no weakness, "minimal" tenderness in the thoracic spine, full range of motion, no
spasm, and intact reflexes. (R. at 273). Plaintiff had a flat affect, but made good eye contact and
interacted appropriately with Dr. Shearer.

(R. at 273).

Plaintiff was prescribed Prozac and

Diclofenac. (R. at 273).
Plaintiff reappeared at Dr. Shearer's offices on October 23, 2008, complaining of rectal
bleeding she attributed to her prescription medications. (R. at 272). She still complained of
"some thoracic pain," and felt no improvement with medication. (R. at 272). Upon examination,
Dr. Shearer found "some tenderness" in the thoracic area, no spasm, and a full range of motion.
(R. at 272). He prescribed Ultram instead of Diclofenac and recommended a course of physical
therapy. (R. at 272).
On November 14, 2008, Plaintiff was seen by Dr. Shearer for complaints ofthoracic pain
and depression. (R. at 271). Plaintiff stated that she was depressed and anxious. (R. at 271).

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She had not been taking her prescribed Prozac for two weeks, however, because of claimed
rectal bleeding. (R. at 271 ). She also complained that pain medication was not helping her, and
that she had even taken Vicodin prescribed to her fiance, but to no avail. (R. at 271 ). Dr.
Shearer observed tenderness between Plaintiffs shoulder blades, but no spasm, radiculopathy, or
weakness. (R. at 271 ). Plaintiff had intact reflexes and full range of motion. (R. at 271 ). She
had a flat affect, but made good eye contact, dressed appropriately, and had normal speech. (R.
at 271). Dr. Shearer prescribed Paxil and Mobic. (R. at 271).
Plaintiff sought treatment with chiropractor Ram N. Parikh, D.C. between February 16
and April 2, 2009. (R. at 287 - 301 ). At his initial evaluation, Mr. Parikh indicated that Plaintiff
complained of pain equivalent to 9 on a scale of 1 - 10. (R. at 292). He also observed severe
tenderness and muscle spasm in the neck and mid back. (R. at 292). Cervical range of motion
was reportedly decreased, as was lumbosacral range of motion. (R. at 292 - 93). Mr. Parikh
diagnosed thoracic sprain/strain, muscle spasm, myalgia, and cervical subluxation. (R. at 293).
Plaintiffs prognosis was "fair." (R. at 293). Plaintiff saw modest improvement in pain and
range of motion through her course oftreatment with Mr. Parikh. (R. at 294 - 301 ).
On April 22, 2009, Plaintiff sought treatment from a new primary care physician, Lisa
Guthrie, D.O. (R. at 366). Plaintiff complained of cervical and mid-back pain for approximately
two years. (R. at 366). She received some relief by taking Motrin. (R. at 366). However, she
claimed that she could not drive and could not stand long enough to wash her dishes. (R. at 366).
Plaintiff endorsed experiencing mood swings, but did not believe that she was depressed. (R. at
366). Dr. Guthrie observed that Plaintiff had thoracic kyphosis and was obese. (R. at 366). Her
range of motion was decreased. (R. at 366). She prescribed Darvocet, Trazadone, and Xanax.
(R. at 366).

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On April 29, 2009, Plaintiff was evaluated by Ellen Mustovic, M.D. for rehabilitative
treatment recommendations with respect to back pain. (R. at 530- 32). Dr. Mustovic observed
Plaintiff to be very pleasant and cooperative. (R. at 532). Plaintiff was overweight, and Dr.
Mustovic had difficulty eliciting reflex responses in the upper and lower extremities. (R. at 532).
However, Plaintiff had intact sensation and full strength in all extremities, and full range of
motion in the cervical spine, shoulders, elbows, and wrists. (R. at 532). She had 75% normal
forward flexion in the lumbosacral spine, and increased kyphosis.

(R. at 532).

Plaintiffs

physical examination was otherwise unremarkable. (R. at 531 ). She had a normal gait. (R. at
532). Plaintiff was diagnosed with degenerative changes and kyphosis of the thoracic spine. (R.
at 532). Physical therapy and a rheumatologist consultation were recommended. (R. at 532).
State agency evaluator John Rohar, Ph.D. completed a Psychiatric Review Technique of
Plaintiff on May 1, 2009. (R. at 313 - 25). Based upon his review of the medical record, Dr.
Rohar concluded that the evidence did not support finding the existence of any severe mental
health impairments. (R. at 313 - 25). Plaintiff was indicated as having no more than mild
limitations in any functional area. (R. at 323).
On May 5, 2009, Plaintiff returned to Dr. Guthrie for follow-up care.
Plaintiff complained of significant ongoing back pam.

(R. at 365).

(R. at 365).

She also described

experiencing anxiety and panic attacks. (R. at 365). Plaintiffs medications were adjusted. (R.
at 365). Findings were relatively the same at a June 16, 2009 return examination. (R. at 364).
Diagnostic testing revealed that Plaintiff had normal bone density in her lumbar spine and hip.
(R. at 367, 379). She had minimal facet joint sclerosis in the lumbar spine, and disc spaces were
well-maintained.

(R. at 368).

Kyphosis and mild scoliosis of the thoracic spine was

demonstrated in imaging studies, as were diffuse degenerative changes and loss of stature of

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multiple mid-thoracic vertebral bodies. (R. at 369).

An x-ray of the entire spine showed that

there was no fracturing, no swelling of prevertebral soft tissues, and disc spacing was generally
well-maintained. (R. at 370 -71). ACT scan of Plaintiffs brain was also normal. (R. at 376).
Plaintiff began seeking treatment from rheumatologist Devashis A. Mitra, M.D. on June
24, 2009 for complaints of ongoing back pain. (R. at 347).

Upon initial evaluation, Dr. Mitra

observed Plaintiff to be alert and oriented, and in no acute distress. (R. at 34 7). Tenderness was
noted in the paraspinal muscles of the thoracic and lumbar spine, as was some muscle spasm.
(R. at 347). Plaintiff was otherwise unremarkable and was not considered to have a connective
tissue disease. (R. at 34 7). Dr. Mitra diagnosed osteoarthritis of the thoracic and lumbar spine.
(R. at 34 7). She was to follow up with Dr. Mitra.
Plaintiff was first evaluated for physical therapy at Butler Memorial Hospital's
Department of Rehabilitation Services on July 28, 2009. (R. at 342). Plaintiffs score on a back
pain questionnaire indicated that she had moderate disability. (R. at 342). She complained of
pain that ranged from 2 - 8 on a scale of 1 - 10. (R. at 342). She could walk no more than a
mile and sit no more than an hour. (R. at 342). She could stand as long as she wanted, but with
increased pain. (R. at 342). Activity increased Plaintiffs pain, but medication and relaxation
relieved her pain. (R. at 342). No tenderness was noted upon palpation by the physical therapist,
and straight leg-raising tests were negative. (R. at 342). Plaintiff was observed to have moderate
thoracic kyphosis and exaggerated lumbar lordosis. (R. at 342). In a physical therapy progress
note dated September 1, 2009, Plaintiff was noted to be progressing. (R. at 344). Plaintiff
ultimately attended thirteen sessions, but was discharged from physical therapy on November 19,
2009 after failing to appear at four consecutive appointments. (R. at 523). Plaintiff had met
"some goals," and reported "better" overall pain. (R. at 523).

7

On August 3, 2009 Plaintiff returned for treatment with Dr. Mitra. (R. at 348). Plaintiff
continued to complain of moderate to severe mid back pain. (R. at 348). There was no joint
swelling, radicular pain, numbness, or weakness, however, and only minimal fatigue and mild
stiffness. (R. at 348). Plaintiff stated that her medications did not provide relief. (R. at 348).
Physical examination revealed non-tender joints without inflammation, paraspinal spasm, and
adequate range of motion. (R. at 348). Dr. Mitra diagnosed osteoarthritis of the thoracic and
lumbar spine, and prescribed Ketoprofen and Parafon. (R. at 348).
Between August 21, 2009 and March 18, 2010, Plaintiff sought mental health treatment
at the Irene Stacy Community Mental Health Center in Butler, Pennsylvania. (R. at 408 - 17).
Patricia Jarrett, M.D. completed an initial psychiatric evaluation. (R. at 414 - 17). Plaintiff
reported an onset of depression three years prior. (R. at 414). She complained of being down
and overeating for comfort.

(R. at 414).

She complained of low energy, low motivation,

anhedonia, and irritability. (R. at 414 ). She claimed that she experienced panic attacks and was
otherwise easily upset, and that this problem was worsening.

(R. at 414).

Plaintiff denied

agoraphobia. (R. at 414). She did not believe that psychiatric medications provided much help.
(R. at 414).

Dr. Jarrett observed Plaintiff to be clean, neat, and casually dressed, she made good eye
contact, was pleasant, was cooperative, was alert, had normal rate and rhythm of speech, had
organized and goal-directed thoughts, had depressed mood, had constricted affect, had good
judgment, had fair insight, had good attention, had a good fund of knowledge, and had intact
memory.

(R. at 415).

Physically, Plaintiff had a normal gait and no abnormal motor

movements. (R. at 415). Dr. Jarrett concluded that Plaintiffs prognosis was fair to good, and
that she would require one to three years of therapy. (R. at 416). Plaintiff was diagnosed with

8

major depressive episode, generalized anxiety disorder, and panic disorder without agoraphobia.
(R. at 417). Dr. Jarrett assigned a global assessment of functioning ("GAF") score of 45 2 . (R. at
417).
Plaintiffs first progress note from Dr. Jarret on September 18, 2009 indicated that
Plaintiff felt "not too bad," that her mood was "better," her sleep was "improved," and her
anxiety had decreased. (R. at 412). Dr. Jarrett observed Plaintiff to be clean, to have normal
speech, to have organized thoughts, to be alert and oriented, to be cooperative, and to have
euthymic mood. (R. at 412). Plaintiff was engaged in counseling, as well. (R. at 412). Plaintiff
was making "moderate" progress. (R. at 412).
On October 6, 2009, Plaintiff reported to Dr. Mitra that the severity of her mid back pain
had improved.

(R. at 349). While Plaintiff was noted to continue to experience paraspinal

spasm, her back condition was considered to be stable, and there were no other significant
changes from Plaintiffs previous visits. (R. at 349- 50). Plaintiffs diagnoses included thoracic
spondylosis without myelopathy and lumbosacral spondylosis without myelopathy. (R. at 350).
Also on October 6, 2009, Plaintiff returned for a follow-up appointment with Dr. Guthrie.
(R. at 361 ). At that time it was noted that physical therapy and treatment with a rheumatologist
had helped Plaintiffs pain. (R. at 361 ). Counseling was helping her mental health issues, and
she was "less edgy overall." (R. at 361).
On October 20, 2009, Dr. Jarrett completed another psychiatric progress note, and
indicated therein that Plaintiff reported feeling "not too bad." (R. at 411 ). Plaintiff stated that

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 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)." /d.

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her mood was "ok." (R. at 411). Dr. Jarrett observed Plaintiff to be clean, to have normal
speech, to have organized thoughts, to be alert and oriented, to be cooperative, and to have
euthymic mood. (R. at 411 ). Plaintiff was making "moderate" progress. (R. at 411 ).
While Plaintiff saw some worsening of her mental state in February 2010, by March 2010
Plaintiff stated that she felt "alright." (R. at 408 - 09). Her mood and anxiety were improving.
(R. at 408). Dr. Jarrett observed Plaintiff to be clean, to have normal speech, to have organized
thoughts, to be alert and oriented, to be cooperative, and to have euthymic mood. (R. at 408).
Plaintiff was noted to have made "minimal" progress, but Dr. Jarrett also opined that she
believed Plaintiff to be "oversedated" on her medication regimen. (R. at 408).
In October and November 2009, Dr. Guthrie noted that Plaintiffs mood was "ok
overall," and that physical therapy was helping Plaintiffs back pain. (R. at 534 - 35, 559).
Plaintiff was also sleeping better. (R. at 534- 35, 559). Plaintiffs medications were adjusted.
(R. at 534- 35, 559).
On March 22 and June 29, 2010 Plaintiff again sought treatment with chiropractor Ram
N. Parikh. (R. at 406, 538- 56). Despite initial reports of severe pain and significant limitation
of activities of daily living, Plaintiffs prognosis was "good."

(R. at 538, 541).

examinations revealed moderate pain and spasm in Plaintiffs back.

Physical

(R. at 406, 538 - 56).

Improvement in Plaintiffs condition was typically noted. (R. at 406, 538- 56).
On May 20, 201 0, Dr. Jarrett completed a psychiatric progress note and stated that
Plaintiff felt "not too bad." (R. at 536). Plaintiffs mood was "stable," and her anxiety was
"better." (R. at 536). Plaintiff denied medication side effects, her appearance was clean, her
speech was normal, her thoughts were organized, she was alert and oriented, she was
cooperative, and her mood was euthymic. (R. at 536). Plaintiffs improvement was noted to be

10

"moderate." (R. at 536).
Plaintiffs last treatment note from Dr. Guthrie was dated August 10, 2010. (R. at 558).
Plaintiffs anxiety and depression were noted to have improved with counseling. (R. at 558).
Plaintiff had continuing back pain, however, and claimed that she could not stand for any period.
(R. at 558). Plaintiffs medications were adjusted. (R. at 558).

Plaintiff was also treated by pain management specialist Hairong Peng, M.D. from July
through September 2010. (R. at 567- 75). Plaintiff was initially evaluated by Dr. Peng on July
1, 2010. (R. at 572- 75). At that time, Plaintiff complained of mid-to-upper back pain that was
typically 6 on a scale of 1 - 10. (R. at 572 - 75). The pain started after Plaintiff became
pregnant. (R. at 572 - 75). The pain was constant, could radiate into the extremities and cause
crampmg and tenderness around the spine, and affected walking, sitting, lifting, bending,
sleeping, and daily activities. (R. at 572- 75). Lying down, medication, and relaxation relieved
Plaintiffs pain. (R. at 572 - 75). Plaintiff claimed that chiropractic treatment, exercise, and
physical therapy did not provide lasting relief, and neither did most past prescribed medications.
(R. at 572- 75).

Upon examination, Dr. Peng observed Plaintiff to be pleasant and in no acute distress.
(R. at 572 - 75).

Plaintiff made appropriate eye contact, answered questions appropriately,

displayed no overt pain behaviors, comfortably sat, and was able to rise from a seated position
with the assistance of her arms. (R. at 572 - 75). While Plaintiffs gait was antalgic, it was
without ataxia, and she had normal muscle tone and bulk, full strength in all extremities,
preserved reflexes in all extremities, and intact sensation in all extremities. (R. at 572- 75). Dr.
Peng ultimately suspected the presence of thoracic degenerative disk disease, spinal stenosis, and
myofascial pain syndrome. (R. at 572- 75). Dr. Peng suggested steroid injections, trigger point

11

injections, medication, counseling, physical therapy, and exercise. (R. at 572 - 75). Plaintiff
was prescribed MS Contin and was to have an MRI of her spine. (R. at 572- 75).
Plaintiff was seen again by Dr. Peng on August 13, 2010. (R. at 567- 68). Plaintiff
complained of slightly increased pain at 7 on a scale of 1 - 10. (R. at 567 - 68). Dr. Peng noted
that the results of an MRI of Plaintiff's spine revealed old, healed compression fractures to the
thoracic spine, a central disk protrusion herniation at the T7 - T8 level of the· thoracic spine
which mildly flattened the anterior margin of the thoracic cord, and mild disk bulging at multiple
levels. (R. at 567 - 68). Upon examination, Dr. Peng's observations of Plaintiff remained the
same, except that he also indicated that she was able to heel and toe walk well, and could squat
without difficulty.

(R. at 567 - 68).

He concluded that Plaintiff's pain was secondary to

discogenic syndrome. (R. at 567 - 68). He changed her MS Contin prescription to Opana ER.
(R. at 567 - 68).
On September 10, 2010, Plaintiff returned to Dr. Peng for a follow-up examination. (R.
at 569 - 71 ). Her complaints were largely the same, but her pain had returned to 6 on a scale of
1 - 10. (R. at 569 - 71 ). Plaintiff claimed that her pain medication did allow her to maintain
some degree of functioning. (R. at 569 - 71 ). She denied medication side effects. (R. at 569 71 ). Upon examination, Dr. Peng' s personal observations of Plaintiff remained the same as
before. (R. at 569 - 71 ). Additionally, he noted that straight leg-raising testing was negative, as
was a Patrick's test. (R. at 569- 71 ). There was no gross deformity of the lumbar or thoracic
spine, although there was some tenderness. (R. at 569 - 71 ). Dr. Peng believed Plaintiff to
experience thoracic degenerative disk disease and compression fractures. (R. at 569 - 71 ). He
prescribed Opana ER, and his treatment recommendations otherwise remained the same. (R. at
569- 71).

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C. Administrative Hearing

At her hearing, Plaintiff testified that she did not believe she could work a full-time job
due to the number of breaks that she needed to take during her day to relieve pain. (R. at 54).
The primary source of Plaintiffs pain was her back, specifically her upper-middle back, with
pain radiating into her lower back on bad days.

(R. at 51 - 52).

She stated that she had

experienced back pain since she was nine or ten years of age, but that it had not been problematic
until she became pregnant. (R. at 53). On average, she rated her pain as 7 on a scale of 1 - 10.
(R. at 52). Plaintiff claimed that she obtained the greatest degree of relief from reclining in a

chair with a heating pad, and would need to rest for approximately twenty minutes at a time. (R.
at 52). Physical activity made the pain worse. (R. at 52). Physical therapy and medication
helped Plaintiffs pain. (R. at 54). Nevertheless, Plaintiff asserted that she could sit or stand for
only twenty to thirty minutes at a time. (R. at 47, 62). She could lift no more than twenty
pounds. (R. at 62). Plaintiff maintained a driver's license and could drive for only limited
periods due to pain. (R. at 46 - 47). Plaintiffs mother relocated from Pittsburgh to Butler,
where Plaintiff lived, to help Plaintiff with her daughter on days when her pain was severe. (R.
at 56- 57, 62-63, 65).
Plaintiff also complained of psychological issues that limited her functionality. While
never psychiatrically hospitalized, Plaintiff claimed to experience frequent depression and
anxiety. (R. at 50). She described experiencing panic attacks approximately every other week,
and had difficulty being in crowded spaces. (R. at 50). Plaintiff claimed that her concentration
was affected by the attacks. (R. at 51). She generally preferred to stay in her home, and became
irritable if she had to leave to go grocery shopping.
counseling until August 2009, however. (R. at 51).

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(R. at 50).

Plaintiff did not pursue

A typical day for Plaintiff involved waking at 7:00 a.m. with her fiance and making his
lunch, returning to bed until 9:00 or 9:30 a.m. when her daughter woke, making breakfast,
performing back stretching exercises, and then reclining in a chair for approximately half an
hour.

(R. at 47 - 48).

After resting, Plaintiff would spend her day attending doctors'

appointments or cleaning the house. (R. at 46, 48). She would take multiple breaks throughout
the day to rest, usually reclining in a chair with a heating pad for fifteen to twenty minutes at a
time. (R. at 48). On bad days, she would spend most of the day reclining or lying down. (R. at
63). This could occur as often as three times per week. (R. at 63). In the evening, Plaintiff
would prepare dinner, and when her fiance returned from work, he would either finish cooking
for Plaintiff or would take over caring for Plaintiffs daughter. (R. at 48). Plaintiff explained
that the dinners she prepared did not involve intensive supervision or standing for long periods.
(R. at 48). After dinner, she and her fiance would relax, she would wash dishes, and they would

go to bed around 10:00 p.m. (R. at 48 - 49).
Plaintiffs mother, Patricia Charles, testified after Plaintiff. She stated that she had to
help Plaintiff three or four times per week due to pain. (R. at 65). This help included caring for
Plaintiffs daughter and lifting items for Plaintiff. (R. at 65, 68- 69). Ms. Charles indicated that
Plaintiff complained of back pain on a daily basis. (R. at 65). Approximately once per week Ms.
Charles had to help Plaintiff with a panic attack. (R. at 66). Plaintiff visited her mother's house
almost every day of the week with her daughter, and would ')ust lay around and watch TV." (R.
at 67).
Following the testimony of Plaintiff and Ms. Charles, the ALJ sought the vocational
expert's testimony. The ALJ first asked the vocational expert whether a hypothetical person of
Plaintiffs age, educational background, and work history would be able to engage in full-time

14

work existing in significant numbers in the national economy if limited to sedentary work which
provided a sit/stand option and involved no more than simple, routine tasks that are not
performed in a fast paced production environment. (R. at 71 ). The vocational expert responded
that such a person could sustain employment as a "document preparer," with 124,000 positions
available in the national economy, or as a "surveillance system monitor," with 115,000 positions
available, and could work in "telephone service," with 72,000 positions available. (R. at 72).
The ALJ went on to ask whether the same hypothetical individual could still work fulltime if he or she required frequent breaks totaling one or two hours duration every work day. (R.
at 72). The vocational expert replied that such a person would not be able to work. (R. at 72).
The vocational expert further testified that missing more than one day of work per month would
also preclude substantial gainful activity. (R. at 74- 75).
IV.

STANDARD OF REVIEW

To be eligible for social security benefits under the Act, a claimant must demonstrate to
the Commissioner that he or she cannot engage in substantial gainful activity because of a
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of at least twelve months.
42 U.S.C. §423(d)(l)(A); Brewster v. Heckler, 786 F. 2d 581, 583 (3d Cir. 1986).

When

reviewing a claim, the Commissioner must utilize a five-step sequential analysis to evaluate
whether a claimant has met the requirements for disability. 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.

15

404, Subpt. P, App'x 1; (4) whether the claimant's impairments prevent him from performing his
past relevant work; and (5) if the claimant is incapable of performing his past relevant work,
whether he can perform any other work which exists in the national economy. 20 C.P.R. §§
404.1520(a)(4), 416.920(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the
claimant is determined to be unable to resume previous employment, the burden shifts to the
Commissioner (Step 5) to prove that, given claimant's mental or physical limitations, age,
education, and work experience, he or she is able to perform substantial gainful activity in jobs
available in the national economy. Doak v. Heckler, 790 F. 2d 26, 28 (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) 3, 1383(c)(3)4 ; Sweeney v.
Comm 'r of Soc. Sec., 847 F. Supp. 2d 797, 800 (W.D. Pa. 2012) (citing Schaudeck v. Comm 'r of
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

3

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).
Section 1383(c)(3) provides in pertinent part:

4

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).

16

fact. Gaddis v. Comm 'r of Soc. Sec., 417 F. App'x 106, 107 n. 3 (3d Cir. 2011) (citing 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. Hagans v.

Comm 'r of Soc. Sec., 694 F. 3d 287, 292 (3d Cir. 2012) (quoting Plummer v. Apfel, 186 F. 3d
422, 427 (3d Cir. 1999)). If the Commissioner's findings of fact are supported by substantial
evidence, they are conclusive. Id (citing Fargnoli v. Massanari, 247 F. 3d 34, 38 (3d Cir.
2001)); 42 U.S.C. § 405(g). When considering a case, a district court cannot conduct a de novo
review of the Commissioner's decision 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. Gamret v. Colvin, 2014 WL 109089 at *1 (W.D. Pa. Jan. 10,
2014) (citing Palmer v. Apfel, 995 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." Albert Einstein Medical Center v. Sebelius, 566 F. 3d 368, 373 (3d Cir. 2009)
(quoting Monsour Medical Center v. Heckler, 806 F. 2d 1185, 1191 (3d. Cir. 1986)).
V.

DISCUSSION

In her decision, the ALJ concluded that Plaintiff suffered medically determinable severe
impairment in the way of major depressive disorder, generalized anxiety disorder, panic disorder,
and obesity. (R. at 29). As a result of said impairments, the ALJ found that Plaintiff would be

17

limited to sedentary work providing a sit/stand option, and involving no more than simple,
routine tasks not performed in a fast-paced production environment. (R. at 31). Based upon the
testimony of the vocational expert, the ALJ determined that Plaintiff was capable of engaging in
a significant number of jobs in existence in the national economy. (R. at 3 5 - 36). Plaintiff was
not, therefore, awarded benefits. (R. at 36).
Plaintiff objects to the decision of the ALJ, arguing that she erred in failing to give
sufficient credit to the findings of Plaintiff's treating medical sources, in failing to accord proper
weight to Plaintiff's subjective complaints of pain and limitation, and in failing to adequately
accommodate all of Plaintiff's credibly established medical limitations in her RFC assessment
and hypothetical question to the vocational expert. (ECF No. 13 at 11 - 19). Defendant counters
that the ALJ provided substantial evidence to support her decision, and should be affirmed.
(ECF Nos. 10, 15). The Court agrees with Defendant.
A. Physician Opinions

Plaintiff initially asserts that the opinions of her treating physicians, including statements
demonstrating the existence of severe functional limitation, were disregarded by the ALJ.
(Docket No. 13 at 11 - 14). It has long been established that a treating physician's opinions may
be entitled to great weight- considered conclusive unless directly contradicted by evidence in a
claimant's medical record - particularly where the physician's findings are based upon
"continuing observation of the patient's condition over a prolonged period of time." Brownawell
v. Comm'r of Soc. Sec., 554 F. 3d 352,355 (3d Cir. 2008) (quoting Morales v. Apfel, 225 F. 3d
310,317 (3d Cir. 2000)); Plummer v. Apfel, 186 F. 3d 422,429 (3d Cir. 1999) (citing Rocco v.
Heckler 826 F. 2d 1348, 1350 (3d Cir. 1987)). However, "the opinion of a treating physician
does not bind the ALJ on the issue of functional capacity." Chandler v. Comm 'r of Soc. Sec.,

18

667 F. 3d 356, 361 (3d Cir. 2011) (quoting Brown v. Astrue, 649 F. 3d 193, 197 n. 2 (3d Cir.
2011) ). A showing of contradictory evidence and an accompanying explanation will allow an
ALJ to reject a treating physician's opinion outright, or accord it less weight. Brownawell, 554

F. 3d at 355.

Moreover, a medical opinion is not entitled to any weight if unsupported by

objective evidence in the medical record. Plummer, 186 F. 3d at 430 (citing Jones v. Sullivan,
954 F. 2d 125, 129 (3d Cir. 1991)).
Presently, Plaintiff makes numerous broad and generally unsupported claims that "many
treating physicians .. .indicate very severe impairments," including Dr. Shearer, Dr. Guthrie, Dr.
Mitra, and Dr. Peng.

(Docket No. 13 at 12).

Plaintiff allegedly only ever experienced

"temporary" pain relief, was provided "very strong pain medication," and had a pain level of
"7110." (!d.). These claims notwithstanding, Plaintiff fails to point to any statement by the
above-mentioned doctors to the effect that Plaintiff was unable to work due to her physical and
mental impairments. None of these doctors indicated that Plaintiff had any specific functional
limitations, aside from recording her own personal, subjective complaints.

See Morris v.

Barnhart, 78 F. App'x 820, 821 (3d Cir. 2003) ("[T]he mere memorialization of a claimant's
subjective statements in a medical report does not elevate those statements to a medical
opinion.").
The ALJ correctly noted that in spite of Plaintiffs complaints of pain and limitation, the
doctors regularly found that she had generally full range of motion, no motor losses, no muscle
atrophy or weakness, no sensory loss, and no loss of reflexes.

(R. at 30, 32 - 34).

Both

Plaintiffs physical therapist and Dr. Peng indicated that straight leg-raising tests were negative.
(R. at 30, 33, 342, 569- 71). Plaintiff generally saw improvement in her symptoms through

medication and physical therapy.

(R. at 32 - 34).

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Treatment recommendations beyond

medication, exercise, physical therapy, and pain injections were never made. (R. at 32 - 34).
Contrary to Plaintiff's claims, no treating physician opined that Plaintiff had severe pain or
limitation, beyond recording Plaintiff's subjective claims. (R. at 32 - 34). Dr. Peng never
witnessed pain behavior by Plaintiff in examinations. (R. at 32- 34). Tenderness observed by
doctors during physical examination was never indicated to be severe.

(R. at 32 - 34).

Plaintiff's belief that the medical evidence demonstrates significant inability to sit and stand, and
an alleged need to recline for substantial periods of the day, is inaccurate. Plaintiff informed her
gynecologist that she regularly walked for exercise. (R. at 33, 392). Several parts of the record
included Plaintiff's statement that she could walk for approximately one mile. (R. at 32 - 34).
In Plaintiff's most recent treatment records, Dr. Peng regularly noted that Plaintiff sat
comfortably throughout every examination, and he also noted that she could heel and toe walk,
squat, and rise from a seated position without difficulty. (R. at 32- 34, 567- 75).
The determination of disabled status for purposes of receiving benefits - a decision
reserved for the Commissioner, only -will not be affected by a medical source simply because it
states that a claimant is disabled or unable to work. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2).
Here, however, no such statements regarding disability were ever made by any treating
physicians, let alone reports of objective observations consistent with Plaintiff's personal
complaints. Plaintiff claims that the ALJ failed to base his decision on physician evidence; to the
contrary, Plaintiff cited to no physician-supplied evidence of limitation in line with the severity
of her claimed limitations. As such, the ALI's handling of Plaintiff's treating physicians with
respect to physical limitations was proper.
As to Dr. Jarrett's one-time assessment of a GAF of 45, the Court finds that the ALJ
properly declined to accord this score significant weight. The United States Court of Appeals for

20

the Third Circuit has held that a "GAF score does not have a direct correlation to the severity
requirements of the Social Security mental disorder listings." Bracciodieta-Nelson v. Comm 'r of
Soc. Sec., 782 F. Supp. 2d 152, 165 (W.D. Pa. 2011) (quoting Gilroy v. Astrue, 351 F. App'x

714, 715 - 16 (3d Cir. 2009)). "[W]hile GAF scores can indicate an individual's capacity to
work, they also correspond to unrelated factors, and absent evidence that a GAF score was meant
to indicate an impairment of the ability to work, a GAF score does not establish disability." !d.
(citing Coy v. Astrue, 2009 WL 2043491 at *14 (W.D. Pa. Jul. 8, 2009)). A single GAF score
cannot alone establish disability, and need not even be discussed when the assigning physician
made no specific limitations findings or otherwise failed to explain the basis for the score, and
the ALJ discussed the physician's narrative, objective reports.

!d. (citing Coy, 2009 WL

2043491 at *14; Gilroy, 351 F. App'x at 716).
In this case, while the ALJ did not specifically discuss the import of the GAF score of 45,
she did note that Dr. Jarrett's progress notes- while indicative of the presence of depression and
anxiety - generally included relatively normal mental status evaluation findings, including being
alert and oriented, and demonstrating normal speech, organized thoughts, no delusions, and no
suicidal ideation. (R. at 32). Plaintiff, herself, typically stated that she felt "not too bad," and
she generally made progress in treatment.

(R. at 32).

This is a far cry from the type of

debilitating, severe mental health-related limitations claimed by Plaintiff. Dr. Jarrett never made
specific functional limitations findings, never opined on Plaintiffs ability to work, and never
explained the basis for her GAF score of 45 and whether or not it was supposed to indicate
Plaintiffs degree of work-related limitation. As such, the Court finds no error in the ALJ's
treatment of Dr. Jarrett's GAF score of 45 or her associated progress notes.

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B. Credibility
Plaintiff next argues that her claimed need to lie down and recline frequently throughout
the day to alleviate pain, her inability stand or sit for more than thirty minutes, her inability to
walk more than a city block and lift more than twenty pounds, and her periodic numbness in her
hands and panic attacks in public was not adequately credited by the ALJ in her discussion of
Plaintiffs medical history. (Docket No. 13 at 17- 18; R. at 30). Plaintiff states that "there is
absolutely no medical evidence whatsoever supporting a conclusion that Plaintiff does not have
severe pain." (!d. at 18).
An ALJ should accord subjective complaints of pain and limitation similar treatment as
objective medical reports, and weigh the evidence before him. Burnett v. Comm 'r of Soc. Sec.,
220 F. 3d 112, 122 (3d Cir. 2000). Serious consideration must be given to subjective complaints
where a medical condition could reasonably produce claimed pain or limitation.

Mason v.

Shalala, 994 F. 2d 1058, 1067-68 (3d Cir. 1993). In so doing, the ALJ is required to assess the
intensity and persistence of a claimant's pain and limitation, and determine the extent to which it
impairs a claimant's ability to work. Hartranft v. Apfel, 181 F. 3d 358, 362 (3d Cir. 1999). This,
however, includes determining the accuracy of a claimant's subjective complaints. !d. While
pain itself may be disabling, and subjective complaints may support a disability determination,
allegations must be consistent with the objective medical evidence on record.

Ferguson v.

Schweiker, 765 F. 2d 31, 37 (3d Cir. 1985); Burnett, 220 F. 3d at 122.
The Court first notes that Plaintiff cites no treating medical source to support any of her
claimed limitations.

Plaintiffs treatment history consisted of medication management and

counseling and she was regularly noted to make progress. (R. at 32 - 34). Although Plaintiff
claimed to have issues with panic in public, Dr. Jarrett stated that Plaintiff did not have

22

agoraphobia. (R. at 32 - 34). Plaintiff also provided in her own self-report that she frequently
interacts with family, gets along with authority figures, and would leave the house for four hours
per day. (R. at 33). Plaintiff was noted throughout the record to be pleasant and cooperative,
and no inappropriateness in behavior was indicated.

(R. at 32 - 34).

Dr. Jarrett made no

limitations findings, and made no statements about Plaintiffs ability to work for psychological
reasons.
Similarly, while diagnostic imagining studies certainly revealed the existence of
abnormalities in Plaintiffs spine, there were no objective findings by any treating physician that
Plaintiff could not work due to physical ailments.

Plaintiffs doctors prescribed medication,

exercise, physical therapy, and injections for pain. (R. at 32- 34). Treating physicians, physical
therapists, and a chiropractor noted that pain improved with treatment. (R. at 32- 33). Dr. Peng
noted that Plaintiff had no issues with sitting, rising, squatting, and heel and toe walking. (R. at
32 - 34).

Plaintiff was regularly noted to have full strength and intact sensation in her

extremities. (R. at 32 - 34). Plaintiff informed her gynecologist that she walked regularly for
exercise. (R. at 32 - 34 ). There was also a significant disparity between the activities of daily
living discussed by Plaintiff in her own self-report- including meal preparation, full-time care of
her young daughter, cleaning, and walking- and what she later claimed in her hearing testimony.
(R. at 32- 34).

Plaintiff provides this Court with little evidence of consistency between Plaintiffs
complaints of pain and limitation and objective medical findings from treating sources. This
lack of consistency is a proper basis for denying subjective complaints full credibility.
Moreover, credibility determinations are the province of the ALJ and only should be disturbed

23

on review if not supported by substantial evidence. Jones v. Barnhart, 364 F. 3d 501, 503 (3d
Cir. 2004). The Court finds the ALJ's credibility determination so supported.
C. Hypothetical Question/ RFC Assessment
Lastly, Plaintiff claims that she and her mother's testimony about her need to recline and
take frequent breaks and her panic attacks in public places necessitated the provision of
additional limitations in the ALJ's hypothetical question and RFC assessment. (Docket No. 13 at
14 - 17).

Hypothetical questions and RFC assessments "must accurately convey ... all of a

claimant's credibly established limitations." Young v. Comm'r of Soc. Sec., 322 F. App'x 189,
191 (3d Cir. 2009 (quoting Rutherford v. Barnhart, 399 F. 3d 546, 554 (3d Cir. 2005)). Yet, the
ALJ need not include limitations which are unsupported by "medically undisputed evidence in
the record." ld. (quoting Burns v. Barnhart, 312 F. 3d 113, 123 (3d Cir. 2002)). Additionally,
limitations which are in conflict with the medical record are not required to be included. Lynn v.
Colvin, 2013 WL 3854460, * 14 (W.D. Pa. July 24, 2013) (citing Rutherford, 399 F.3d at 554).
In light of the above discussion, it is clear that the ALJ provided a sufficient analysis of
the medical evidence underlying Plaintiffs claim for disability benefits.

Having provided

adequate record evidence to support her ultimate factual findings, this Court can conclude
nothing other than that all the credibly established medical impairments suffered by Plaintiff
were properly incorporated into the hypothetical to the vocational expert and were
accommodated fully in the ALJ's RFC assessment. Therefore, substantial evidence supported
the ALJ' s decision in this regard.
VI.

CONCLUSION

Based upon the foregoing, the ALJ engaged in sufficient discussion of the factual record
to provide substantial evidence in support of his ultimate disability decision.

24

Accordingly,

Plaintiff's Motion for Summary Judgment is denied, Defendant's Motion for Summary Judgment
is granted, and the decision of the ALJ is affirmed. Appropriate Orders follow.

United States District Judge
Dated: March 19, 2014
cc/ecf: All counsel of record.

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