SMOLLECK v. ASTRUE

Filing 15

ORDER denying 8 Plaintiff's Motion for Summary Judgment; granting 12 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 03/10/2014. (dpo)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOSEPH SMOLLECK,

Plaintiff,
vs.

Civil Action No. 12-1493

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o

R D E R

AND NOW, this 10th day of March, 2014, upon consideration
of the parties' cross-motions for summary judgment, the Court, upon
review of the Commissioner of Social Security's final decision, denying
plaintiff's claim for disability insurance benefits under Subchapter
II of the Social Security Act, 42 U.S.C. §401, et seq., and denying
plaintifffs claim for supplemental security income benefits under
Subchapter XVI of the Social Security Act, 42 U.S.C. §1381, et seq.,
finds that the Commissioner's findings are supported by substantial
evidence and, accordingly, affirms.

See 42 U.S.C. §405(g); Jesurum

v. Secretary of U.S. Department of Health & Human Services, 48 F.3d
114, 117 (3d Cir. 1995)

i

Williams v. Sullivan, 970 F.2d 1178, 1182

(3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
1

See also Berry v. Sullivan,

738 F. Supp. 942, 944 (W.D. Pa. 1990)

(if supported by substantial

evidence, the Commissioner's decision must be affirmed, as a federal
court may neither reweigh the evidence, nor reverse, merely because
it would have decided the claim differently) (citing Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981)).1

1

The Court finds no merit in Plaintiff's arguments, including his
assertion that the Administrative Law Judge ("ALJ") erred in finding
that Plaintiff did not meet Listing 9.08, 20 C.F.R. Part 404, Subpart
P, Appendix 1, at Step Three of the sequential analysis, and in
determining Plaintiff's residual functional capacity ("RFC").
Accordingly, the Court finds that substantial evidence supports the
ALJ's finding that Plaintiff is not disabled.
Listing 9.08, as of the time of the ALJ' s decision, provided that
to meet the listing for diabetes melli tus, it must be established that
Plaintiff experiences:
A. Neuropathy demonstrated by significant
and persistent disorganization of motor function
in two extremities resulting in sustained
disturbance of gross and dexterous movements, or
gait and station (see 11.00C) i or
B. Acidosis occurring at least on the
average of once every 2 months documented by
appropriate blood chemical tests (pH or PC02 or
bicarbonate levels)i or
C. Retinitis proliferansi evaluate the
visual impairment under the criteria in 2.02,
2.03, or 2.04.
sting 11.00C explains that the assessment of impairment
based on persistent disorganization of motor function
depends on the degree of interference with locomotion and/or
interference with the use of fingers, hands, and arms.
Al though the ALJ did not expressly refer to Listing 9.08 by number
in his decision, it is clear that he considered the criteria set forth
therein. First, he specifically stated at the hearing that he would
be looking carefully" at whether Plaintiff met Listing 9.08. (R. 49) .
2
II

Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No.8) is DENIED and defendant's Motion for
Summary Judgment (document No. 12) is GRANTED.

N. Bloch
s
United States District Judge
ecf:

Counsel of record

Moreover, in the part of his decision discussing whether Plaintiff
met a listing at Step Three, the ALJ included a substantial discussion
regarding the effects of Plaintiff's bilateral foot pain on his ability
to function and ambulate. This discussion clearly related to
subsection A of Listing 9.08, and as there is no evidence that would
implicate the other two subsections of that listing, no further
discussion was needed. An ALJ is not required to use any particular
language or adhere to a particular format in performing the Step Three
analysis, nor must he necessarily even identify the most relevant
listing. What he must do is sufficiently develop the record and clearly
evaluate the available evidence of record in making his Step Three
findings so as to permit meaningful review. See Jones v. Barnhart,
364 F.3d SOl, 505 (3d Cir. 2004) i Scatorchia v. Comm'r of Soc. Sec.,
137 Fed. Appx. 468, 471 (3d Cir. 2005). Here the ALJ did just that,
even if he did not expressly cite
sting 9.08. Moreover, contrary
to Plaintiff's contentions I the ALJ did consider Dr. Kevin Grosso's
opinion in determining whether he met a listing. Although he did not
mention Dr. Grosso by name I he expressly referenced Exhibit 14F, which
contained Dr. Grosso/s opinion.
(R. 17).
l

Likewise l although the ALJ again did not refer to Dr. Grosso by
name I he also considered Exhibit 14F in determining Plaintiff/s RFC.
(R. 20). Indeed, the RFC is generally consistent with Dr. Grosso's
opinion. Moreover the ALJ provided a proper basis for evaluating
Plaintiff IS credibili ty as to the intensity I persistence, and limi ting
effects of his ailments. Accordingly, substantial evidence supports
the ALJ's RFC determination and his ultimate finding that Plaintiff
was not disabled.
3
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