MCGINNIS v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
OPINION. Signed by Judge Mark R. Hornak on 12/18/13. (jad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA R. MCGINNIS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
)
)
) Civil Action No. 12-1395
)
) Judge Mark R. Hornak
)
)
)
)
Defendant.
OPINION
Mark R. Hornak, United States District Judge
Donna R. McGinnis ("Plaintiff') brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking review of the final determination of the Commissioner of Social Security
("Defendant" or "Commissioner") denying her application for disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("Act"). This matter
comes before the Court on cross motions for summary judgment (ECF Nos. 6, 8). The record has
been developed at the administrative level. For the reasons which follow, Plaintiffs Motion for
Summary Judgment will be GRANTED in part and DENIED in part. Defendant's Motion for
Summary Judgment will be DENIED. The decision of the Commissioner is VACATED, and the
matter REMANDED to the Commissioner for further proceedings not inconsistent with this
Opinion.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB on July 15,2009, claiming a disability onset of March 18,2009.
(R. at 105-110, 115). J Plaintiff was initially denied benefits on September 8, 2009. (R. at 77
81).
1
A hearing before Administrative Law Judge ("ALJ") Lamar W. Davis was held on
Citations to ECF Nos. 4-2-9, the Record, hereinafter, "R. at _."
1
December 9, 2010, and Plaintiff testified, represented by an attorney, Karl E. Osterhout. (R. at
38-67). A vocational expert was present testified. (R. at 38-67). The ALJ issued his decision
denying benefits to Plaintiff on March 3, 2011. (R. at 8-21). Plaintiff filed a Request for Review
of Hearing Decision with the Appeals Council, which was denied on April 25, 2011, thereby
making the ALl's decision the final decision of the Commissioner. (R. at 1-5).
Plaintiff filed her Complaint in this Court on September 26, 2012.
(ECF No.1).
Defendant filed an Answer on January 8, 2013. (ECF No.3). Cross motions for summary
judgment followed. (ECF Nos. 6, 8). The matter has been fully briefed, (ECF Nos. 7, 9, 10),
and is ripe for disposition.
II.
A.
STATEMENT OF FACTS
General Background
Plaintiff was born on May 29, 1961, was forty-seven years of age at the time of her
application for benefits, and was forty-nine years and nine months of age at the time of the ALl's
decision. (R. at 21, 41). Plaintiff graduated from high school. (R. at 42). From 1986 through
2009, Plaintiff worked for the U.S. Postal Service. (R. at 42-43). Initially, she worked as a letter
carrier and subsequently held two different supervisory positions, until she was terminated due to
problems with her knees. (R. at 42-43, 46). At the time of the hearing, Plaintiff was married and
had four children. (R. at 108, 183).
B.
Physical Health History
On February 5, 2008, Plaintiff treated with Niveditha Mohan, M.D., at the UPMC
Arthritis and Autoimmunity Center, reporting pain in her knees and hips. (R. at 161). Dr.
Mohan diagnosed Plaintiff with "Bursitis NEC" and "Osteoarthros NOS-LlLeg," and recorded
that Plaintiff had "significant lateral instability of both knees" and "also had significant
tenderness to palpation over the left trochanteric bursa." (R. at 161-162). Dr. Mohan noted that
2
Plaintiff had not been taking her Flexeril medication and had been doing her quad-strengthening
exercises "intermittently." (R. at 161). Dr. Mohan advised Plaintiff to continue her quad
strengthening exercises, lose weight, find a way to do water aerobics, and take her Flexeril
medication. (R. at 162). On June 17, 2008, Dr. Mohan examined Plaintiff and noted that
Plaintiff was still experiencing pain and her sleep had improved "minimally." (R. at 166).
Although Plaintiff was regularly taking Flexeril and doing her quad-strengthening exercises, her
knee pain had progressed, which limited her activities. (R. at 166). Plaintiff was "very tearful
during the visit and kept insisting on getting her knees replaced." (R. at 166). She reported that
she could not work forty hours per week and could only work thirty-two hours per week. (R. at
166). Dr. Mohan diagnosed Plaintiff with the same conditions and advised her to follow the
same instructions that she received at her last visit, adding that she should reduce her hours at
work to thirty-two hours per week "when her pain is worse or flaring." (R. at 166-167).
On July 3, 2008, Adolph 1. Yates, M.D., reviewed an MRI with Plaintiff and
recommended that she get an opinion from spine physiatrist Marc J. Adelsheimer, M.D. (R. at
172). On July 14, 2008, Dr. Adelsheimer examined Plaintiff for a Rehabilitation and Pain
evaluation.
(R. at 182). Plaintiff complained of low back and bilateral knee pain and Dr.
Adelsheimer diagnosed Plaintiff with having "degenerative arthritis of the knees" and an
"annular tear, L4-5 disc, with questionable radicular symptoms." (R. at 182-183). Plaintiff
reported that she was employed by the U.S. Post Office but was not currently working, and said
she exercised and did some leg lifts. (R. at 182-183). Dr. Adelsheimer scheduled Plaintiff for a
series of "bilateral L4 transforaminal epidural steroid injections." (R. at 178, 180, 183). Plaintiff
reported there were no side effects from the first series of injections, which she said "helped her
a lot" and made her feel "about 65-70% better." (R. at 180). On August 26, 2008, Plaintiff met
with Dr. Adelsheimer following her second series of injections, and reported that she had no side
3
effects, was "very pleased," felt "100% better and [was] pain free."
(R. at 178).
Dr.
Adelsheimer gave Plaintiff permission to stop taking Flexeril, which she had been using
occasionally. (R. at 178).
On September 5, 2008, Plaintiff was examined by chiropractor Philip J. Olverd, D.C.,
R.D. (R. at 197). Dr. Olverd opined that Plaintiff could not return to work until further notice.
(R. at 197). Plaintiff underwent physical therapy at Dr. Olverd's facility, Spine & Sports Injury
Rehabilitation Center, from September 2008 through August 2009. (R. at 203-256). In 2008,
Plaintiff attended ten (10) physical therapy sessions in September, twelve (12) sessions in
October, and one (1) session in November. (R. at 207-211,232-256). In 2009, Plaintiff attended
two (2) physical therapy sessions in February, two (2) sessions in March, four (4) sessions in
April, two (2) sessions in May, four (4) sessions in June, and two (2) sessions in August. (R. at
216-231).
Plaintiff s reported level of pain varied throughout the duration of her physical
therapy treatment. During many of these sessions, Plaintiff reported that she was feeling "achy"
and sore, but during several other sessions, Plaintiff reported her knees and legs were feeling
good and felt like she was making progress. (R. at 216-256). On February 14, 2009, Dr. Olverd
released Plaintiff to return to work. (R. at 202). On March 17, 2009, Plaintiff was terminated
from her job 2 and alleged onset of disability the following day, but at her next physical therapy
session on March 30, 2009, she reported that she had been working full-time since February 14,
2009. (R. at 46, 115, 118,228).
On May 6, 2009, Dr. Yates examined Plaintiff for a follow-up visit and gave her a DerpoMedrol injection in her right knee, which Plaintiff later reported "didn't really do anything." (R.
at 170, 223).
Dr. Yates' notes provide that Plaintiff "had a great deal of help from Dr.
Plaintiff stated at the administrative hearing that she was tenninated from her job due to problems with her knees.
(R. at 45-46). She reported to multiple treating physicians that her condition made her unable to do her job, which
required prolonged walking and standing. (R. at 269,273).
2
4
Adelsheimer with a series of injections," but she was "having some return of knee pain on the
right with radiation proximally in and around the thigh and also pain radiating into her left leg
down her calf." CR. at 170). On May 12,2009, Plaintiff was examined by Dr. Adelsheimer for a
follow-up visit, who noted that he had not seen Plaintiff since August of 2008. CR. at 176).
Plaintiff stated that her pain was "returning and getting worse," and Dr. Adelsheimer
recommended "repeating the bilateral L4 transforaminal epidural injections" because they "did
help her a lot in the past." CR. at 176-177).
On June 2, 2009, Edward D. Snell, M.D., evaluated Plaintiff and diagnosed her with
"bilateral moderate to severe bilateral knee arthritis," "multiple degenerative joint disease
including wrist and elbows," and "low back pain." CR. at 190). Regarding Plaintiffs multiple
joint pains, Dr. Snell noted that "the patient is fairly well controlled and will continue her current
medications that she is on including Darvocet, Neurontin, and Flexeril, as per her PCP." (R. at
191).
Dr. Snell's notes provide that Plaintiff s bilateral knee pain had "become more
symptomatic" and that her physical therapy treatment has resulted in "some improvement in
strength and function, however, the pain has not subsided." CR. at 190). On June 5, 2009,
Plaintiff had an MRI of the lumbar spine, which was "unremarkable." (R. at 192).
Plaintiff went on a five day vacation in June of 2009 and upon her return to her physical
therapy treatment, she reported that "her knees didn't bother her as much as before she went on
her trip," but since she returned her "knees [were] more sore." (R. at 218-219). Plaintiff stated
that she did golf ball exercises every morning and rode a bicycle, which she said "helped." (R. at
218). When her knees bothered her on the trip, she "got in the water above her knees which
made a difference." (R. at 218). On June 24, 2009, she assessed her pain level as a nine out of
ten in her right knee, and a five out of ten in her left knee. (R. at 217). Plaintiff reported she had
been pulling weeds in her garden and was "sore all over." CR. at 217).
5
On July 6, 2009, Dr. Snell gave Plaintiff a Synvisc injection. (R. at 189). On July 13,
2009, Plaintiff met with Dr. Snell for a follow-up visit and reported that the Synvisc injection
had "not helped her, in terms of pain," and she requested trying Platelet Rich Plasma ("PRP")
treatment. (R. at 188). On July 29, 2009, Plaintiff received PRP injections in both of her knees
from Dr. Snell, and at a follow-up visit on August 25, 2009, Dr. Snell noted that Plaintiff was
"really not a whole lot better at this point" and was still having "pain all the time." (R. at 187
188, 216, 257-258).
On September 8, 2009, non-treating state agency physician Darren Gallaher conducted a
physical residual functional capacity assessment of Plaintiff and opined that Plaintiff had
medically determinable impairments of osteoarthritis of the knees and fibromyalgia. (R. at 74).
Dr. Gallaher determined that Plaintiff could stand and/or walk for at least two hours in an eight
hour day, and could sit for a total of about six hours in an eight-hour day. (R. at 70). Dr.
Gallaher wrote that "despite ongoing treatment, [Plaintiff] continues to have pain which
significantly impacts on her ability to perform work related activities," and found her statements
regarding her symptoms to be "partially credible," based on the evidence of record. (R. at 74).
On September 23, 2009, Plaintiff was examined by Elizabeth A. Young, M.D., for the
purpose of determining "how to deal with the pain." (R. at 273-276), Plaintiff said she believed
that the PRP injections performed by Dr. Snell in July 2009 "may have had some benefit." (R. at
273). Dr. Young's notes provide that Plaintiff "had severe back spasms at work in March 2009"
and Plaintiff reported to Dr. Young that she was "terminated because she cannot perform the
duties of her job which involves prolonged standing and walking." (R. at 273). Plaintiff stated
she was "contesting her dismissal" and had not worked since July 4, 2009. (R. at 273). Dr.
Young diagnosed Plaintiff with "degenerative joint disease, knees" and "generalized
fibromyalgia." (R. at 276). In a letter addressed to Plaintiff s counsel, Dr. Young opined that
6
based on the infonnation she had, it was "reasonable to conclude ...that [Plaintiff] would have
difficulty doing continuous, prolonged weight bearing activity." (R. at 271).
On November 3, 2009, Plaintiff was examined by Ryan J. Soose, M.D., on referral from
Dr. Young, regarding her "difficulty staying asleep." (R. at 284). Plaintiff said that she was
"waking up frequently at night for the past year primarily because of knee pain and generalized
body pains." (R. at 284). The sleep study identified no apnea and Dr. Soose "felt her sleep
disorder was psychophysiologic." (R. at 272). On January 5, 2010, Plaintiff reported to Dr.
Young that she was feeling better overall, and said that taking "Prozac 20 mg each morning did
help her cope better with her musculoskeletal discomfort." (R. at 272). Dr. Young advised
Plaintiff to "continue breathing exercises and easy yoga," take a warm bath at bedtime, continue
treating with her psychologist, and walk for exercise. (R. at 272). Dr. Young recommended that
Plaintiff walk for ten minutes, rest for five minutes, and walk back home for ten minutes, and
should attempt "to increase endurance by increasing pace or duration every 2 to 3 weeks." (R. at
272).
On May 27, 2010, Plaintiff had MRls of both of her knees, which were reviewed by
Arnold J. Snitzer, M.D.
(R. at 264-267).
Dr. Snitzer found that Plaintiff's right knee had
"advanced degeneration of the lateral meniscus with Grade 4 Chondrosis of the lateral
compartment," "superficial Grade 1 Chondrosis of the pateUofemoral compartment," and "small
effusion." (R. at 264-265). Dr. Snell found Plaintiff's left knee had "Grade 4 Chondrosis of the
lateral and patellofemoral compartment," "myxoid degeneration of the lateral meniscus," and
"small effusion." (R. at 266-267). On August 25, 2010, Dr. Snell examined Plaintiff for a
follow-up visit, and Plaintiff was still experiencing pain and having "difficulty getting around."
(R. at 257). Dr. Snell's notes state that "we tried Synvisc, cortisone, PRP, relative rest, anti
inflammatories, [and] pain medications," but "nothing is really helping at this point." (R. at 257).
7
C.
Mental Health History
Plaintiff treated with clinical psychologist Karen 1. Schulze, Psy.D., for two months,
beginning on September 2, 2009. (R. at 268-270). At the initial session, Dr. Schulze evaluated
Plaintiff and diagnosed her with "major depression, recurrent, severe" and alcohol abuse. CR. at
269-270). Plaintiff reported taking Darvocet and Flexeril. (R. at 269). She had not been taking
Percocet because it gave her a "foggy feeling" and had not been taking Lyrica because it was
"hard on her stomach." (R. at 269). Plaintiff reported that she used alcohol "to cope with the
pain," and would drink "a small glass of unknown quantity of liquor three to five times a week."
(R. at 269). She agreed to start measuring "the number of shots in her drinks" because she did
not think she could quit using alcohol at that time. (R. at 269). At Plaintiff's next session on
September 10, 2009, she reported "a change in attitude" and had "resolved to live life as fully as
she can," which she did by "inviting friends over, and taking on new projects." (R. at 268).
Plaintiff was next scheduled to see Dr. Schulze on September 17,2009, but she cancelled
her appointment on that day because she was experiencing pain. (R. at 268). At her rescheduled
appointment on September 24, 2009, "cognitive/motivational therapy was used to address her
need to safer means of sleep than through the use of alcohol." (R. at 268). On October 1, 2009,
Plaintiff and Dr. Schulze completed and signed a treatment plan, and Dr. Schulze noted that
Plaintiff had "already radically reduced her drinking, and her efforts were reinforced." (R. at
268). Plaintiff did not show up to her next scheduled appointment on October 15, 2009. (R. at
268).
On October 22, 2009, which was Plaintiff's last session, Dr. Schulze used
"cognitive/motivational therapy" to address Plaintiff's "challenges with coming to terms with her
history of feeling unloved." (R. at 268). Plaintiff reported that she was taking Lyrica at night
and was taking Darvocet "for extreme pain on occasion." (R. at 268). Plaintiff cancelled her
appointment on October 29, 2009 and never showed up to the rescheduled appointment on
8
November 5, 2009. (R. at 268). Ten months later on September 7, 2010, Plaintiff called Dr.
Schulzes' office, requesting her treatment records for her DIB hearing. (R. at 268).
D.
Administrative Hearing
On December 9, 2010, Plaintiff testified at her administrative hearing, represented by
counsel. (R. at 38-67). She was born on May 29, 1961, making her forty-nine years and seven
months old at the time of the hearing. (R. at 41-42). Plaintiff was a high school graduate and
worked for the U.S. Postal Service from 1986 through 2009. (R. at 42). Plaintiff began her
career as a letter carrier and subsequently held two separate supervisory positions. (R. at 42).
Plaintiff testified that she had Grade IV Chondrosis since she was a teenager and this condition
worsened over time. 3 (R. at 44). On February 14,2009, Plaintiffs position at work was changed
to plant supervisor, which required her to stand on her legs more, making her condition worse.
(R. at 44). Her day usually involved about three hours of desk work and the remaining five
hours were spent supervising the staff. (R. at 43). Plaintiff said that her leg began "flaring up"
and was "swe11ing and aching." (R. at 44). Plaintiff described her Grade IV Chondrosis as
"basically bone-on-bone" grinding every time she walked, and was ultimately terminated as a
result of her problems with her knees. (R. at 45-46). She did not feel that her termination was
justified. (R. at 46-47). She said she was "unable to do the job" so she asked whether she could
work only two to three days per week, but was told her condition was too severe. (R. at 46-47).
Regarding treatment, Plaintiff stated she had participated in both physical therapy and
occupational therapy, and had also been seen chiropractors.
CR. at 45).
She took Prozac,
Flexeril, Neurontin, and Ultram, and said the combination of these medications made her sick, so
she stopped taking "some of them," including Prozac.
(R. at 48, 56-57).
Moreover, she
maintained that the medication made it difficult for her to concentrate, making her "very drowsy
3 The condition was transcribed as "Grave IV Chondrosis," but Plaintiffs medical records demonstrate it is
appropriately named Grade IV Chondrosis. CR. at 43, 45, 195, 264-267).
9
and sleepy." (R. at 56). Plaintiff said her medications were not improving her situation and felt
her doctor would agree with that statement. (R. at 48). She testified that she tried Hyalgan
injections, Synvisc injections, cortisone injections, and PRP injections, but said none were
successfuL (R. at 49). Plaintiff stated that she was referred to Dr. Michael Seel, who scheduled
her for a total knee replacement on October 18,2010. (R. at 49).
The ALJ asked Plaintiff whether it was ever recommended that she try to get exercise by
walking. (R. at 49). Plaintiff initially responded in the negative, stating that "the walking would
have to be only minimal because of the bone-on-bone scraping." (R. at 49-50). However, she
also said in order to "keep the muscle around the knee strong," she would walk for ten to fifteen
minutes and rest for a half hour, or she would attempt to walk backwards up the stairs. (R. at
50).
She testified that such walking was recommended daily.
(R. at 50).
Then the ALJ
specifically asked her about Dr. Young's instruction that she try to walk for ten minutes, rest for
five minutes, and walk back home for ten minutes. (R. at 50). Plaintiff said that she tried doing
it and "sometimes it would be good" and made her feel better, but other times she was unable to
do it.
(R. at 50).
Plaintiff said she returned to see Dr. Young six months following this
recommendation and Dr. Young told her to do what she could. (R. at 51).
Plaintiff testified that she experienced pain in her elbows and wrists and was told she had
traumatic ganglion. (R. at 51-52). She had trouble making fists sometimes, mainly in her left
hand, so she held her cane with her right hand despite being left-handed. (R. at 52). Plaintiff
had full range of motion in her shoulders and hips, but her hips were sometimes stiff. (R. at 53).
She said that her knees were constantly swollen and her ankles would also swell if she was "on
them too long." (R. at 53-54). She stated that Dr. Yates told her that "a lot of her discomfort and
inability to walk" was a result of "deterioration in [her] lower back." (R. at 52).
10
With respect to daily activities, Plaintiff said her knees prevented her from being able to
scrub the floor. CR. at 54). She testified that she tried sit if she did yard work. CR. at 54). She
said she could not do activities around the house for more than an hour and a half. CR. at 58).
When asked by the ALJ if she ever rode a bicycle, she said "no, I do not." CR. at 54-55). The
ALJ specifically asked her about riding a bicycle on vacation and she said it was possible that
she did this, but did not recall doing so. CR. at 55). She remembered that the golf ball exercises
she did on vacation helped and said she got in the water above her knees to "loosen it up." CR. at
55). Plaintiff stated she was "working" on her emotions and was trying to get out more. CR. at
56). When asked by the ALJ if there was anything that she's had to stop doing, she responded
that she had "pretty much stopped everything." CR. at 56).
Plaintiff said she would have a "bad day" about three days per week, which she defined
as when her pain level was a ten out of ten. CR. at 58-59). On such days, she said she would
"just try to relax and do mindful reading and small exercises in the bed." CR. at 58). On days
that were not "bad days," she said that instead of laying down, she would sit, and try to do
something like computer work or relaxing. CR. at 60). In the last thirty days, she said had more
bad days because of the surgery, and was 'just in an awful lot of pain." CR. at 61). She said that
following her termination with the U.S. Postal Service in March of 2009, she would on average
have at least four bad days per week and maybe three better days. (R. at 61). Then, she testified
that she had not "had a good day in a while." CR. at 61).
Following Plaintiffs testimony, the ALJ questioned the vocational expert. CR. at 62-65).
The ALJ first asked the vocational expert to characterize Plaintiffs past work for the post office.
CR. at 62).
The vocational expert testified that Plaintiffs work as a letter carrier was
characterized as medium and unskilled work, and regarding her work as a supervisor in the two
11
separate positions, one was considered semi-skilled work and light work, and the other was
skilled and light work. CR. at 62). The ALJ then asked the vocational expert to assume a:
hypothetical individual of the same age, education, background,
and vocational history as depicted in this record, which individual
would be capable of no more than light exertional activity,
provided a discretionary sit-stand option were afforded. In
addition, this hypothetical individual would be precluded from all
but occasional postural adaptation, which would be stoop, kneel,
crouch, crawl, balance, or climb, with no exposure to hazards such
as unprotected heights or dangerous machinery, and mentally
would be limited to simple, routine, repetitive tasks involving
incidental exercise of independent judgment or discretion. No
more than incidental change in work processes. No piece work,
production rate pace and no interaction with the general public.
Incidental will be defined at all times in this hearing as totaling up
to but not more than one-sixth of a routine eight-hour work day. In
light of that, would this hypothetical individual in your estimation
be capable of performing any of the claimant's past relevant work?
(R. at 62-63). The vocational expert responded in the negative. (R. at 63). The ALJ next asked
the vocational expert whether there were any transferable skills acquired in past relevant work
applicable to this hypothetical individual, to which the vocational expert also responded in the
negative. (R. at 63). The vocational expert then opined that such an individual could perform
assembly work, with 36,000 such jobs available nationally, work as a packer, with 25,000 such
jobs available, or work as a sorter-grader, with 19,000 such jobs similarly available. (R. at 63
64).
The vocational expert testified that such a hypothetical individual could not maintain
work if that individual was absent an average of four days per month in an ongoing fashion. (R.
at 64).
The vocational expert then explained that his testimony did not comport with the
criterion set forth in the Dictionary of Occupational Titles ("DOT") because the DOT "does not
speak of the sit-stand option." (R. at 65). The vocational expert said that "the numbers are based
12
on reductions formed by [himself] and other vocational experts in the field," but otherwise said
his testimony was consistent with the DOT. (R. at 65).
Plaintiff s attorney next questioned the vocational expert, and asked what amount of
standing and walking such a hypothetical individual would be required to do in the three jobs
listed by the vocational expert in an eight-hour day. (R. at 65). The vocational expert said that
there would be no walking required, and there was also no minimum standing requirement
because the jobs could be accomplished just as easily by either sitting or standing. (R. at 66-67).
Plaintiffs attorney next asked the vocational expert what an average employer expected
regarding attendance, and what an average employer expected regarding on-task requirements.
(R. at 67). The vocational expert answered that one absence per month was acceptable, and an
average individual must be on-task ninety percent of the time, respectively. (R. at 67).
E.
Administrative Decision
In his written decision dated March 3, 2011, the ALl concluded that Plaintiff had not
been under a disability within the meaning of the Act at any time since her alleged onset of
disability. (R. at 12). The ALl determined that Plaintiff had the following severe impairments:
epicondylitis (commonly known as tennis elbow), Grade IV Chondrosis, osteoarthritis of the hips
and knees, depressive disorder, and alcohol abuse. (R. at 14). As a result of said impairments,
the ALl concluded that
[Plaintiff] has the residual functional capacity to perform light
work defined in 20 CFR 404.1567(b) except: occasional stooping,
kneeling, crouching, crawling, balancing, and climbing; avoid all
exposure to hazards, including unprotected heights and dangerous
machinery; requires the option to sit or stand at will; and, requires
simple, routine and repetitive tasks that involve only incidental use
of independent judgment or discretion, no piece work or
production rate pace and no interaction with the general public.
13
(R. at 16). In assessing Plaintiff s residual functional capacity ("RFC"), the ALl stated "there is
no doubt that the claimant experiences pain from bilateral, moderate knee osteoarthritis,
however, the alleged extent of her pain and resulting limitations do not match her activities." (R.
at 17). The ALl discussed several of Plaintiffs inconsistent statements and found they "tend[ed]
to lessen her credibility in general." (R. at 17-18).
The ALl found that because Plaintiff
disagreed with the decision to terminate her, it was an assertion that she was capable of
performing work that is light in exertion. (R. at 18). The ALJ also discussed Plaintiff's daily
living activities in determining that her pain was not as severe as she claims. (R. at 18).
Additionally, the ALl considered the opinion of Plaintiff s treating rheumatologist Dr. Young
and concluded that his assessment of Plaintiffs RFC was "not inconsistent" with Dr. Young's
opinion. (R. at 18).
Based upon the testimony of the vocational expert, the ALl determined that Plaintiff was
capable of engaging in a significant number ofjobs in existence in the national economy. (R. at
19-21). Plaintiff was not, therefore, awarded DIB. (R. at 21).
Ill.
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)(1)(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
14
combination of impainnents that is severe; (3) whether the medical evidence of the claimant's
impainnent or combination of impainnents meets or equals the criteria listed in 20 C.F .R., Pt.
404, Subpt. P, App'x 1; (4) whether the claimant's impainnents prevent him from perfonning his
past relevant work; and (5) if the claimant is incapable of perfonning his past relevant work,
whether he can perfonn any other work which exists in the national economy. 20 C.F.R. §§
404.1 520(a)(4), 416.920(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157
L.Ed.2d 333 (2003). If the claimant is detennined 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 perfonn substantial gainful
activity in jobs 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)4, 1383(c)(3)5; Schaudeck v.
Comm'r of Soc. Sec., 181 F.3d 429,431 (3d Cir. 1999). Section 405(g) pennits a district court to
review the transcripts and records upon which a detennination 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
4
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).
5
Section J 383(c)(3) provides in pertinent part:
The final determination of the Commissioner of Social Security after a hearing under
paragraph (\) 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. § \383(c)(3).
15
detennine whether substantial evidence exists in the record to support the Commissioner's
findings of fact. Bums 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. 389,401,91
S.Ct. 1420, 28 L.Ed.2d 842 (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. 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. 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 affinn a detennination by substituting what it considers to be a proper basis,
Chenery, 332 U.S. at 196-197. Further, "even where this court acting de novo might have
reached a different conclusion ... so long as the agency's fact finding 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, 1190-1091 (3d. Cir. 1986).
IV.
DISCUSSION
Plaintiff objects to the decision of the ALl, arguing she established by a preponderance of
the evidence that she is incapable of "light work." (ECF No. 7 at 5-7). Moreover, Plaintiff
asserts that the ALl erred in detennining Plaintiffs RFC by failing to quantify the precise
amount of time allotted between sitting and standing/walking. (ECF No. 7 at 7-11). Plaintiff
further argues that the ALl improperly applied the Medical Vocational Guidelines ("Grids" or
"Grid Rule"), 20 C.F.R., Pt. 404, Subpt. P, App. 2, mechanically in a "borderline situation,"
16
improperly weighed the medical oplmon of Dr. Young, improperly assessed Plaintiffs
credibility, and that the totality of his errors led to an improper hypothetical question posed to the
vocational expert.
(ECF No. 7 at 11-19).
Defendant counters that the ALl's finding that
Plaintiff could perform a modified range of light work is supported by substantial evidence, and
the ALJ properly determined Plaintiffs RFC, properly weighed Dr. Young's medical opinion,
properly analyzed Plaintiffs credibility, and provided the testifying vocational expert with an
appropriate RFC and corresponding hypothetical question. (ECF No. 10 at 2-11). Except as to
the ALl's assessment of Plaintiffs credibility, the Defendant is correct.
Plaintiff first argues that based on her testimony, which she contends was supported by
her treating rheumatologist Dr. Young, she established by a preponderance of the evidence that
she is incapable of "light work," which would require her to be on her feet for approximately six
hours of an eight hour day. (ECF No. 7 at 5-7). A full range of light work requires that a
claimant is able to stand or walk, off and on, for a total of approximately six hours in an eighthour day. 20 C.F.R. § 404.1567; S.S.R. 81-10, 1983 WL 31251, *6. However, the ALJ did not
assess Plaintiff an RFC with a full range of light work, and instead provided the limitation that
she be able to sit or stand at will. (R. at 17-21). Although Plaintiff argues that her position is
supported by the opinion of her treating rheumatologist Dr. Young, the ALJ considered Dr.
Young's opinion and concluded that it was "not inconsistent with [Plaintiffs RFC] assessment,
which allows for the sit/stand option." (R. at 18, 271). The vocational expert testified that the
option to sit or stand at will would require no walking during the day, and that Plaintiff would
only have to stand if she desired. (R. at 66-67). Accordingly, there is no error here.
Plaintiff next argues that the ALJ erred because his RFC assessment of Plaintiff lacked
the necessary specificity required by Rulings 83-12 and 96-9p. (ECF No.7 at 7-9). Plaintiff
asserts that this alone was error because it prevented the ALJ from meeting his burden at Step 5
17
of the sequential analysis. (ECF No.7 at 7-11). Further, Plaintiff contends that the ALJ's
imprecise RFC created a "borderline situation" because at the time of his decision, Plaintiff was
only a few months away from turning fifty years 01d. 6 (ECF No.7 at 8-11).
The Court
disagrees.
"Where an individual's exertional RFC does not coincide with the definition of anyone
of the ranges of work as defined in sections 404.1567 and 416.967 of the regulations, the
occupational base is affected," but "[t]here are some jobs in the national economy ... in which a
person can sit or stand with a degree of choice." S.S.R. 83-12,1983 WL 31253, *2, *4. Ifan
individual is capable of performing such a job, she would not be found disabled. Id. at *4. "In
cases of unusual limitation or ability to sit or stand, a [vocational specialist] should be consulted
to clarify the implications of the occupational base." Id. Further, Ruling 96-9p provides that the
"RFC must be specific as to the frequency of the individual's need to alternate sitting and
standing," but this Ruling only applies to situations when a claimant's RFC is assessed as less
than a full range of sedentary work. S.S.R. 96-9p, 1996 WL 31253, *7. In such cases, "it may
be especially useful... to consult a vocational resource in order to determine whether the
individual is able to make an adjustment to other work." Id. The ALJ found Plaintiff to be
capable of less than a full range of light work (and not less than a full range of sedentary work),
so Ruling 96-9p is not applicable. (R. at 16). Nonetheless, other jurisdictions have held that
similar limitations to the RFC in this case have satisfied the specificity required in Ruling 96-9p.
See, e.g., Ketelboeter v. Astrue, 550 F.3d 620, 626 (7th Cir. 2008)(an RFC specifying that
claimant be able to alternate between sitting and standing "as needed during the day" was
sufficient); Hodge v. Barnhart, 76 F. App'x. 797, 800 (9th Cir. 2003)(Although Ruling 96-9p
An individual is considered a "younger person" if she is under the age of fifty. 20 C.F.R. § 404.1563. An
individual is considered a "person closely approaching advanced age" ifher age is between fifty and fifty-four years
old. Id.
6
18
applies to sedentary work and does not apply to light work, the ALl's hypothetical to the
vocational expert sufficiently set forth all limitations and restrictions of claimant when it
included "the option to sit or stand").
Here, the ALl received testimony from a vocational expert, who opined that a
hypothetical individual with Plaintiff s RFC, age, education, and vocational experience could
perform jobs that existed in significant numbers in the national economy that were light in
exertion with an option to sit or stand at will. (R. at 63-64). Upon questioning from Plaintiffs
counsel, the vocational expert explained that the jobs listed could be accomplished just as easily
while either sitting or standing, subject to Plaintiffs discretion. (R. at 65-66). As a result, the
ALl's assessment of Plaintiffs RFC did not lack the specificity required in Rulings 83-12 and
96-9p.
With respect to Plaintiffs argument that a "borderline situation" is present, such a
situation exists when a claimant is "within a few days to a few months of reaching an older age
category, and using the older age category would result in a determination or decision that [the
claimant is] disabled." 20 C.F.R. § 404.1563. If there is a borderline situation, then the ALl
must not apply the Grids mechanically. Id. In this case, there is not a borderline situation and
the ALl did not apply Grid Rule 202.21 mechanically. Plaintiff was only a few months away
from approaching her fiftieth birthday at the time of the ALl's decision. (R. at 21, 41). When a
claimant turns fifty years old, her age category changes from a "younger person" to a "person
closely approaching advanced age." 20 C.F.R. § 404.1563. Plaintiff contends that an outcome
determinative situation is present because if Grid Rule 201.12 would have been applied instead
of Grid Rule 202.21, she would have been found disabled.
(ECF No. 7 at 10). However,
application of Grid Rule 201.12 requires not only adjusting Plaintiffs age, but also requires
reducing her exertionallevel from light to sedentary work. 20 C.F.R., Pt. 404, Subpt. P, App. 2,
19
§ 201.12.
The ALJ did comply with Rulings 83-12 and 96-9p in detennining Plaintiff's
exertional level, so Grid Rule 201.12 is inapplicable. Moreover, even if a borderline situation
actually existed, the ALJ still did not err here because he did not apply Grid Rule 202.21
mechanically, and instead used it as "a framework." (R. at 19-20). The ALJ explained that
because Plaintiff did not have the RFC "to perform all or substantially all of the requirements" of
the full range of light work, it would be inappropriate to apply the Grids mechanically. (R. at
20). Consequently, the ALJ sought testimony from a vocational expert "to detennine the extent
to which these [additional] limitations erode the unskilled light occupational base." CR. at 19
20). As such, there is no error here.
Plaintiff next asserts that the ALJ improperly assessed the opinion of treating physician
Dr. Young. (ECF No.7 at 11-18). If an ALJ does not give the treating physician's opinion
controlling weight, then he is to consider the examining relationship, the treating relationship,
supportability of the opinion afforded by medical evidence, consistency of opinion with the
record as whole, specialization of the treating physician, and various other factors. 20 C.F.R.
§§ 404.1527(c), 416.927(c).
Plaintiff asserts that the ALJ gave Dr. Young's opinion "little
weight," but this is factually incorrect. (ECF No.7 at 11-12). The ALJ considered Dr. Young's
opinion that it would be "reasonable to conclude ... that [Plaintiff] would have difficulty doing
continuous, prolonged weight bearing activity," and detennined that it was "not inconsistent"
with his assessment of Plaintiff's RFC, allowing Plaintiff to sit or stand whenever she chooses.
CR. at 18, 271). The vocational expert testified that such an option would allow Plaintiff to
accomplish all of her work while sitting, and therefore, Plaintiff would not be "doing continuous,
prolonged weight bearing activity."
(R. at 66-67).
In sum, the ALJ never assigned "little
weight" to Dr. Young's opinion, and his assessment of the same was not error.
20
Plaintiff next argues that the AL.I erred by improperly assessing Plaintiffs credibility.
When assessing a claimant's credibility regarding the intensity and persistence of her symptoms,
an ALJ must compare the claimant's subjective allegations of pain with the objective medical
evidence. 20 C.F.R.§ 404.1529(c)(2). An ALJ must consider all the evidence before him and
"must give some indication of the evidence which he rejects and his reason(s) for discounting
such evidence." Russo v. Astrue, 421 F. App'x 184, 191 (3d Cir. 2011); Burnett v. Comm'r of
Soc. Sec., 220 F. 3d 112, 122 (3d Cir. 2000).
Reviewing courts "ordinarily defer to an ALl'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 376,380 (3d Cir. 2003).
The ALJ properly highlighted numerous inconsistent statements made by Plaintiff. He
discussed Plaintiffs testimony that no treatment helped, she was never pain free, and her knees
always hurt to some extent. (R. at 18, 48-49, 53-54). However, her medical records show that
on various dates she reported she was" 100% better and pain free" and had "a great deal of help"
from the injections. (R. at 170, 178). Additionally, Plaintiff had reported to her physicians that
her medication was helping her. (R. at 18, 191, 272). The ALJ referred to one of Plaintiff s
physical therapy records, where she reported that on June 9, 2009, she was "feeling pretty good,"
and noted "that despite [Plaintiffs] allegations of disabling levels of pain, her pain is well
controlled with non-narcotic medications," (R. at 18, 219). The ALJ also discredited Plaintiff
because her medical records provide that on her five day vacation she rode a bicycle, which she
reported helped her knees, but at the hearing she did not remember ever riding the bicycle. (R. at
18, 54-55, 218).
The ALJ questioned how Plaintiff was able to do activities like gardening if
her pain was so severe that three days per week her pain was at a level of ten out of ten. (R. at
18,55,58-59,217). The ALJ found that Plaintiffs initial denial in response to the question at
21
the hearing of whether she was ever instructed that she walk for exercise diminished her
credibility as well. (R. at 17,49-50,272).
While much of the ALl's discussion of evidence tending to diminish Plaintiff's
credibility is generally appropriate, the ALl erred by failing to affirmatively consider Plaintiff's
long work history. (ECF No.7 at 17). When making a credibility assessment, an ALl's failure
to consider a plaintiff's long work history constitutes justification for a remand when that
plaintiff has "also showed evidence of severe impairments or [has] attempted to return to work."
Corley v. Barnhart, 102 F. App'x 752, 755 (3d Cir. 2004) (citing Oobrowolsky v. Califano, 606
F.2d 403,405,410 (3d Cir. 1979)); see also Sementilli v. Astrue, 2010 WL 521183, *8 (W.O.
Pa. 2010); Bond v. Astrue, 2011 WL 710207, *14 (W.O. Pa. 2011); Sopher v. Astrue, 2011 WL
3444158, *14 (W.O. Pa. 2011). In this case, Plaintiff worked for the U.S. Post Office from 1986
to 2009 and testified that she was fired from her job as a supervisor because of problems with her
knees.
CR. at 42, 45-46). Plaintiff did not feel her termination was justified, and the ALl
concluded that "[b]y definition, if the claimant did not feel that she should have been fired, then
she asserted that she was able to perform the work which was light in exertion." (R. at 18, 46
47). It is error when "the ALl [does] not discuss the Plaintiff's long work history in the context
of his overall credibility determination and only mention[s] [her] unsuccessful attempts to return
to work as circumstantial evidence of an ability to perform work of a less demanding nature."
Sementilli, 2010 WL 521183, *8. Here, Plaintiff testified that she was unable to complete the
work as a supervisor, which required prolonged standing. (R. at 46-47). She attempted to return
to work by asking about the possibility of working only two to three days per week. (R. at 46
47). The ALl should have actually considered her long work history as a factor when assessing
her credibility instead of flatly stating that Plaintiff's disagreement with the decision to terminate
her was an assertion she could perform light work, since it also reflects her effort to return to her
22
position. Vacation and remand is appropriate here so that the Plaintiffs long work history can
be affirmatively considered and discussed in the context of the overall credibility analysis of
Plaintiff.
Finally, Plaintiff argues that ALl's errors resulted in an improper hypothetical question
posed to the vocational expert. (ECF No.7 at 18). "The ALJ must accurately convey to the
vocational expert all of a claimant's credibly established limitations." Rutheford v. Barnhart,
399 F.3d 546, 554 (3d Cir. 2005)(citing and adding emphasis to Plummer v. Apfel, 186 F.3d
422, 431 (3d Cir. 1999)). Because the Court finds that the ALJ erred in assessing Plaintiffs
credibility with respect to her long work history, this is an argument that can and must be
considered anew on remand.
V.
CONCLUSION
Based on the foregoing, the Plaintiffs Motion for Summary Judgment is GRANTED in
part and is DENIED in part, and Defendant's Motion for Summary Judgment is DENIED, and
the decision of the ALJ is VACA TED and the matter REMANDED to the Commissioner for
further proceedings not inconsistent with this Opinion. An appropriate order follows.
United States District Judge
Dated: December
/8
2013
cc: All counsel of record
23
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