MCCLOSKEY v. ASTRUE

Filing 12

MEMORANDUM OPINION indicating that, for reasons stated within, Plaintiff's Motion for Summary Judgment 8 is denied, Defendant's Motion for Summary Judgment 10 is granted, and the decision of the ALJ is affirmed. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 3/20/13. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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DANIELLE LEE McCLOSKEY,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant,

Civil Action No. 12-1555
Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
Danielle Lee McCloskey (“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 supplemental security income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 – 1383f (“SSA”). This matter comes
before the court on cross motions for summary judgment. (Docket Nos. 8, 10). The record has
been developed at the administrative level. For the following reasons, Plaintiff’s Motion for
Summary Judgment is DENIED, and Defendant’s Motion for Summary Judgment is
GRANTED.
II.

PROCEDURAL HISTORY
On April 15, 2009, Plaintiff applied for SSI, asserting disability beginning March 1,

2000. (R. at 13).1 Plaintiff alleged that she suffered from endometriosis, attention deficit
disorder, depression, bipolar disorder and headaches. (R. at 56). This claim was denied on
September 10, 2009. (Id.). Plaintiff appeared and testified at a hearing held on October 28, 2010,
1

Citations to the Record, hereinafter, “R. at __”.

1

where an impartial vocational expert also appeared and testified. (R. at 13). On February 23,
2011, the Administrative Law Judge (“ALJ”) determined Plaintiff had not been under disability
within the meaning of the SSA. (R. at 10). Plaintiff then filed a request with the Appeals
Council, which was denied on September 24, 2012, thereby making the judgment of the ALJ the
final decision of the Commissioner. (R. at 1).
A complaint was filed in this Court by the Plaintiff on October 29, 2012, seeking review
of the Commissioner’s decision to deny Plaintiff’s previous claim. (Docket No. 3). Defendant
filed her answer January 3, 2013. (Docket No. 5). Plaintiff then filed a Motion for Summary
Judgment on January 31, 2013, (Docket No. 8), followed by Defendant’s Motion for Summary
Judgment on February 21, 2013. (Docket No. 10).
III.

STATEMENT OF FACTS
A.

Plaintiff’s General Background

Plaintiff is a single mother who was born on February 5, 1970, making her forty at the
time of her administrative hearing.2 (R. at 142). She lives with her daughter, born in 1996 and
son, born in 2004. (R. at 125). Her parents separated when she was five; consequently, she was
primarily raised by her mother until she moved out at the age of fourteen.3 (R. at 345). She
completed the tenth grade, but did not graduate high school and she never received her GED. (R.
at 150). Plaintiff is currently unemployed and has not worked since 2001. (R. at 138). She held
numerous jobs from 1987 until 2001, (R. at 138-139), but she was no longer able to work
because her pelvic pains were too much for her to handle, especially when the headaches became
worse. (R. at 146). Now, she receives financial support from her children’s father, through a
2

Plaintiff is a “Younger Person” Pursuant to 20 C.F.R. §§ 404.1563, 416.963.
Plaintiff comes from a family with a history of substance abuse and mental illness. Her mother is recovering from
drug and alcohol problems and her father is also a recovering alcoholic. (R. at 252). Two of her sisters and one
brother have also been involved with drugs and alcohol. (Id.). Her maternal grandfather and paternal grandmother
were also alcoholics, (R. at 252), and she has a maternal uncle who has been reportedly in and out of a psychiatric
hospital (R. at 253).
3

2

Family Grant and via food stamps. (R. at 126). She does not have a driver’s license, so when she
needs to leave the house, she takes the bus or gets a ride with either her sister or mother. (R. at
162). Plaintiff has two DUI convictions.4 (R. at 252). She also smokes a pack of cigarettes a day.
(R. at 227).
During an average day, Plaintiff wakes up early to get her children prepared for school.
(R. at 160). She takes care of her dog as well. (R. at 160). She prepares all three meals for her
children. (R. at 161). While they are at school, she does house work – cleaning, laundry,
vacuuming, etc. – but at a slow pace because of her pain. (R. at 160). She may watch TV during
the day. (R. at 163). Due to her discomfort, Plaintiff cannot take a shower and must take baths
instead. (R. at 160). Whenever the pain intensifies, she will lay or sit down for as long a period
as needed. (R. at 159). She occasionally leaves her house but does not spend much time with
anyone besides her family. (R. at 163). She does not walk many places other than to the bus stop,
but when she does, she can only walk a few steps before she grows tired and needs to take
approximately fifteen minutes to rest. (R. at 164).
B.

Plaintiff’s Medical History

Plaintiff first sought psychiatric help from Dr. Mahendra Patil on November 19, 2003.
(R. at 251). At that time, she had been living with her common-law husband and father of her
children. (R. at 251). There had been constant conflict with her husband, with it sometimes
becoming physical. (R. at 252). When she began treatment, she was suffering from poor selfesteem and was feeling “worthless, hopeless and helpless.” (R. at 251). She was having
difficulties sleeping and concentrating. (R. at 251). She complained that when she was around
people, she would have panic attacks that would result in difficulty breathing, chest pressure and
fear. (R. at 251). Dr. Patil diagnosed Plaintiff with major depressive disorder, moderate and
4

The record does not indicate whether this is the reason that Plaintiff does not have a driver’s license.

3

recurrent, with General Anxiety Disorder and assigned a GAF between 50-60.5 (R. at 253). After
giving birth to her son, an assessment was performed on June 8, 2004 as part of a crisis
intervention because Plaintiff was increasingly depressed and had been off her medication for
nine months due to her pregnancy. (R. at 246). Throughout her sessions, Plaintiff was
unemployed, and financially relied on food stamps and her parents for support. (R. at 228, 235252). Plaintiff was always appropriately dressed and groomed. (R. at 228, 235-252). She had
normal psychomotor activity, volume and tone with intact judgment. (R. at 228, 235-252). She
also always denied suicidal or homicidal ideations or abnormal perceptions and delusions. (R. at
228, 235-252). Dr. Patil frequently noted that Plaintiff was not taking her medications as
prescribed. (R. at 235, 237, 239). Plaintiff last visited Dr. Patil on March 27, 2006, and received
a second consecutive GAF of 60-65. (R. at 235). She then voluntarily terminated her treatment
on June 19, 2007, without achieving Dr. Patil’s goals of alleviating her depression and
sleeplessness and she was assigned a final GAF of 50. (R. at 228).
In January of 2005, shortly after Plaintiff had a cholecystectomy6, (R. at 194), she visited
the Alle-Kiski Medical Center Allegheny Valley Hospital Emergency Department for her
ongoing abdominal pain. (R. at 185, 192, 196, 201). She was first admitted on January 12, 2005
for surgical evaluation and observation, but left early against medical advice. (R. at 185-186).

5

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).” Id. By
comparison, “[a] GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” Id.
6
Cholecystectomy is the removal of the gall bladder. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0004618/(last viewed on Mar. 18, 2013).

4

She returned on January 14, 2005 and several CAT scans were performed with no etiology7
being found and no clinical findings supported any reasons for her abdominal pain. (R. at 192,
194). The physician initially suspected that she was merely a narcotics seeker. (R. at 194). She
was offered psychiatric help, but refused it. (R. at 192). Shortly thereafter, she was admitted for
evaluation from January 16 until January 21 and underwent colonoscopies due to nausea,
vomiting and bloody emesis.8 (R. at 201). It was determined that she was suffering from
inflammatory bowel disease, erosive gastritis9 and clostridium difficile enteritis.10 (R. at 201).
She was discharged without further complications on medication. (R. at 202)
Since April of 2005, Plaintiff has visited Dr. Scheler, her primary care physician. (R. at
275-95). His records reflect that he treated Plaintiff for anxiety, depression, endometriosis 11 and
hepatitis C.12 Dr. Scheler has also prescribed Plaintiff with Ibuprofen, Vicodin, Ativan13 and
Bentyl.14 (R. at 261). It is noted that on August 27, 2005, Plaintiff suffered an injury while riding
on a quad, specifically, a deviated nose and neck pain.15 (R. at 315).

7

Etiology describes the cause of a disease. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0003010/
(last viewed on Mar. 18, 2013).
8
Bloody emesis is vomiting which contains blood. http://www.ncbi.nlm.nih.gov/pubmedhealth/ PMH0003604/(last
viewed on Mar. 18, 2013).
9
Erosive gastritis is a condition of the stomach lining which often does not cause significant inflammation but can
wear away the stomach lining. Erosive gastritis can cause bleeding, erosions, or ulcers. available at
http://digestive.niddk.nih.gov/ddiseases/pubs/gastritis/(last viewed on Mar. 18, 2013).
10 Clostridium difficile enteritis is an early postoperative complication in inflammatory bowel disease patients after
colectomy. available at http://www.ncbi.nlm.nih.gov/pubmed/17390162/(last viewed on Mar. 18, 2013).
11
“Endometriosis is a female health disorder that occurs when cells from the lining of the womb (uterus) grow in
other areas of the body. This can lead to pain, irregular bleeding, and problems getting pregnant.” available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001913/(last viewed on Mar. 18, 2013).
12
“Hepatitis C is a viral disease that leads to swelling (inflammation) of the liver.” available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001329/(last viewed on Mar. 18, 2013).
13
Altivan is a brand name for a lorazepam, which is used to treat anxiety. available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0001078/(last viewed on Mar. 18, 2013).
14
Bentyl is a brand name for Dicyclomine, which is used to treat irritable bowel syndrome, or spastic colon and
colitis. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009928/?report=details(last viewed on Mar.
18, 2013).
15
The Court recognizes that this quad riding injury was sustained during the time period in which Plaintiff had
asserted her disability (March 1, 2000 – present).

5

On May 12, 2005, Plaintiff visited Dr. Douglas S. Skura, a Board Certified Orthopaedic
Surgeon, about her back pain. (R. at 226). Dr. Skura recommended that she have an MRI of her
lumbar spine. (R. at 227). After learning that she had been smoking a pack of cigarettes a day, he
also recommended that she stop because it could be a cause of her chronic back pain. (R. at 227).
Dr. Scheler declined to perform an additional examination of Plaintiff’s ability to perform
work-related physical activities on June 17, 2009. (R. at 339). Plaintiff was then to have a
Clinical Psychological Disability Evaluation performed by Peterson-Handley Associates on July
23, 2009, but she did not show up for the scheduled appointment. (R. at 342). Instead, on August
28, 2009, Dr. Charles Kennedy conducted a psychological evaluation of Plaintiff based upon a
referral from the Bureau of Disability Determination to examine Plaintiff’s complaints of
endometriosis, ADD, depression, bipolar disorder, and headaches. (R. at 344). At the evaluation,
Plaintiff demonstrated adequate hygiene and appearance, was well mannered, had good selfsufficiency and ambulated with no disturbance in gait. (R. at 344). Plaintiff complained that her
depression and anxiety had been worsening over the past ten years, as she was increasingly
irritable and was experiencing panic and tearfulness. (R. at 345). She was thus diagnosed with
major depressive disorder, moderate without psychotic features and social phobia. (R. at 348).
Dr. Kennedy found that Plaintiff exhibited an appropriate affect with full range of
expression, adequate intelligence, good abstract thinking and appropriate thought content to the
situation. (R. at 347). Based on her mental status, he found that although she complained of poor
concentration, she did very well during the evaluation and maintained her attention. (R. at 347).
Her memory also did not appear weak. (R. at 347). A GAF score of 50 resulted. (R. at 348). Dr.
Kennedy recommended that her prognosis would improve if she was evaluated by a psychiatrist
for medication management and outpatient counseling. (R. at 348). He noted that Plaintiff had

6

only slight restrictions in making judgments on simple work-related decisions, understanding and
remembering short, simple instructions as well as carrying them out. (R. at 351). Plaintiff had
moderate difficulties in understanding, remembering and then carrying out detailed instructions.
(R. at 351). She had moderate restrictions in interacting with the public, supervisors and coworkers. (R. at 351). Additionally, Plaintiff was moderately restricted in responding
appropriately to work pressures in a usual work setting or to changes in a routine work setting.
(R. at 351).
A Physical Residual Functional Capacity Assessment was performed on September 8,
2009, by Dr. Paul Fox. (R. at 355). He concluded that Plaintiff had the capability to occasionally
lift and/or carry twenty pounds and frequently lift and/or carry ten pounds. (R. at 356). Plaintiff
was capable of standing and/or walking (with normal breaks) for about six hours as well as
sitting for about six hours during a normal workday. (R. at 356). Plaintiff was able to
occasionally climb ladders and stairs, use ramps, kneel and craw. (R. at 357). Dr. Fox noted that
even though Plaintiff had been diagnosed, she never sought or received specific treatment for her
erosive gastritis or inflammatory bowel disease. (R. at 360). Based upon the evidence of record,
Dr. Fox found that Plaintiff was only partially credible. (R. at 361).
On September 9, 2009, Dr. Richard A. Heil performed a Mental Residual Capacity
Assessment on Plaintiff (R. at 362). Dr. Heil found that Plaintiff was not significantly limited in
most mental activities, and only moderately limited in the following abilities: understanding and
remembering detailed instructions; carrying out detailed instructions; maintaining attention and
concentration for extended periods; performing activities within a schedule; maintaining regular
attendance, and being punctual within customary tolerances; interacting appropriately with the
general public; accepting instructions and respond appropriately to criticism from supervisors;

7

completing a normal workday and workweek without interruptions form psychologically based
symptoms; and performing at a consistent pace without an unreasonable number and length of
rest periods. (R. at 362-63). The medical evidence relied upon by Dr. Heil established that
Plaintiff suffered from the determinable impairments of Major Depressive Disorder, Social
Phobia and ETOH16 Abuse. (R. at 364). Dr. Heil gave great weight to Dr. Kennedy’s report,
especially his statements concerning Plaintiff’s ability to make occupational adjustments,
performance adjustments and personal and social adjustments. (R. at 364). Dr. Heil thus
determined that Plaintiff was able to meet the basic demands of competitive work on a sustained
basis despite the limitations resulting from her impairments. (R. at 364).
Dr. Heil also performed a Psychiatric Review Technique on September 9, 2009.
Plaintiff’s determinable impairments included Major Depressive Disorder, (R. at 369), and
Anxiety Related Disorder. (R. at 371). When examining Plaintiff’s functional limitations, Dr.
Heil found that she had moderate limitations in maintaining social functioning, concentration,
persistence or pace, a mild restriction of activities of daily living and no repeated episodes of
decompensation, each of which for an extended duration. (R. at 376). It was also Dr. Heil’s
opinion that Dr. Kennedy’s assigned GAF score of 50 for Plaintiff was “somewhat overestimated
in severity.” (R. at 378).
On September 22, 2009, Dr. Scheler concluded that Plaintiff was disabled due to her
endometriosis, attention deficit disorder, depression and hepatitis C. (R. at 381). He did not,
however, include on the form he completed an explanation as to how each diagnosis affects her
ability to work. (R. at 382).

16

“Abbreviation for ethyl alcohol.” STEDMAN’S MEDICAL DICTIONARY (28th ed. 2006).

8

Most recently, on June 21, 2010 Plaintiff was admitted to UPMC St. Margaret with
pleural effusion,17 pneumonia, chronic obstructive pulmonary disease,18 migraines and tobacco
use disorder. (R. at 384). Following four days of treatment and tests, Plaintiff was discharged
with “no physical restrictions” and was again told to quit smoking. (R. at 385). At Plaintiff’s
checkup on September 8, 2010, a CT scan reviled baseline emphysema, resolved pneumonia,
resolved pleural effusion, minimal residual pleural thickening and interval regression of
intrathoracic lymph nodes. (R. at 405).
C.

Administrative Hearing

At the hearing held on October 28, 2010, Plaintiff’s primary contention for disability
centered upon her physical health, and she testified to the following information. She claims that
her severe physical pain is predominantly pelvic pain caused by her endometriosis. (R. at 33).
There had been a mass in her lung, but it ended up being pneumonia. (R. at 33). A CT scan
revealed that her lungs are still filling up with liquid, but doctors are not sure why. (R. at 44).
While determining the cause of this fluid, her physician is withholding treatment for her hepatitis
C. (R. at 44-45). She also suffers from migraine headaches and depression, causing her to go on
crying spells. (R. at 33). Plaintiff must go to the hospital every six months in order to have the
endometriosis examined. (R. at 33). Sometimes, Doctors have to perform a LEEP19 in order to
scrape away buildup of scar tissue. (R. at 33). She last had a LEEP performed about five or six
years prior to the hearing. (R. at 36).

17

“A pleural effusion is a buildup of fluid between the layers of tissue that line the lungs and chest cavity.”
available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001150/(last viewed on Mar. 18, 2013).
18
Chronic obstructive pulmonary disease is a common lung disease making it difficult to breathe. One of the main
forms is emphysema. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001153/(last viewed on Mar.
18, 2013).
19
A loop electrosurgical excision procedure (“LEEP”) is a procedure using an electric current running through a
loop of wire which removes tissue. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004750/(last
viewed on Mar. 18, 2013).

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Plaintiff endures frequent pelvic pains, with some days being greater than others. (R. at
35). On most days, she experiences this pain about seven to ten times; but on other days, the pain
will not be as frequent. (R. at 35). These recurrent episodes of pain can last anywhere from 10 to
45 minutes, at which point they become incapacitating and she must stop whatever she is doing.
(R. at 41-42). Sometimes, Plaintiff begins to bleed, and she will be in the bathroom for about an
hour. (R. at 42). This occurs almost every day of the week. (R. at 42). She most frequently
experiences pain in the right side of her stomach and in the right side of her lungs, which causes
her to feel like her airways are blocked when she breathes. (R. at 34). The migraines, which
occur five to seven days a week, also cause pain that lasts about an hour and a half, causing her
to “see circles and lines” and “get real dizzy.” (R. at 42-43).
When Plaintiff sits up, it is harder for her to breathe; however, lying down causes even
more pain. (R. at 38). She is unable to sit for more than a half an hour at a time. (R. at 38). She
cannot stand for more than fifteen minutes and cannot walk any distance without being winded.
(R. at 38). She does get much sleep either. She also complains about a constant migraine
headache. (R. at 38). Plaintiff has problems stooping, bending forward, crouching, kneeling,
squatting and climbing. (R. at 39). She also claims that her hands constantly shake and she has
trouble lifting a gallon of milk. (R. at 38-39). As a result of her problems, she only gets about
two to three hours of sleep every night. (R. at 39).
Plaintiff’s typical day begins when she wakes up at 5:00 a.m. to prepare her children for
school. (R. at 46). She says that she pretends everything is fine because she does not want them
to know about her pain. (R. at 46). Once they leave for school, she will just lie back down for a
few hours, usually without falling back asleep, before beginning work around the house. (R. at
46). She takes her time doing chores because after about 5 minutes, she needs a 15-30 minute

10

break. (R. at 43). On some days, she may leave the house in order to go shopping with her
mother and sister because she does not have a car and does not like being by herself in public.
(R. at 40, 43). She claims she is unable to concentrate long enough to even make it through a
book or a TV show. (R. at 45). She occasionally cries throughout the day while waiting for her
children to get home from school. (R. at 45-46). Her daughter will come home, but then the
father’s mother usually will drive her to one of her friend’s house. (R. at 46). When her son gets
home, she will help him with his homework. (R. at 46). He then leaves and goes with his father
on most days that his father is not working out of town. (R. at 46). Plaintiff’s daughter or mother
may help out with the dishes and the laundry. (R. at 44). She does not attend most of her
children’s activities. (R. at 40).
Plaintiff also feels depressed and suffers from anxiety, yet she does not currently see a
psychiatrist. (R. at 37). She had been seeing Dr. Patel, but stopped because it became difficult to
get a babysitter and she does not drive. (R. at 37). She says that she felt more comfortable talking
to her primary care physician, even though he told her that speaking with a counselor or therapist
would help. (R. at 37). She has been prescribed Vicodin for approximately the past six years. (R.
at 34). She used to take four a day, but now only takes two because she fears becoming addicted.
(R. at 34). She also takes Ativan three times a day for her depression and Ibuprofen for her
migraines. (R. at 34). She had been prescribed Fioricet20and Trazodone,21 but each has been
ineffective and caused her to vomit. (R. at 34-35).
Following Plaintiff’s testimony, the Vocational Expert was examined by the ALJ to
determine the jobs which may possibly be available in the current economy to the hypothetical
20

Fioricet is a brand name of butalbital, acetaminophen, caffeine and codeine combination that is used for pain relief
and as a relaxant used to treat tension headaches. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMHT0009377/(last viewed on Mar. 18, 2013).
21
Trazodone is an antidepressant medication. available at http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0003174/(last viewed on Mar. 18, 2013).

11

person of Plaintiff’s age, education and lack of relevant work experience. (R. at 48). Further
relevant factors considered by the expert included the ability to do light exertional work, except
that the individual could occasionally climb ladders and would not be able to climb ropes or
scaffolds. (Id.). The hypothetical individual could frequently climb ramps and stairs, balance,
stoop and crouch while occasionally kneeling and crawling. (Id.). Additionally, the hypothetical
person was limited to simple, routine, repetitive involving simple, work related decisions. (Id.).
The individual could tolerate infrequent changes in her work setting but could not be able to
work in a fast paced production environment. (Id.). Said hypothetical person could tolerate
interaction with the public, co-workers and supervisors. (Id.). The person cannot be exposed to
fumes, odors, gases, dust, chemicals, extreme heat, cold, humidity or wetness. (Id.). To this
inquiry, the vocational expert replied that such a person would best be suited as a bagger, a
racker such as in a bakery setting and a small parts assembler. (R. at 48-49).
The ALJ then used the same hypothetical question, but limited the hypothetical
individual to demands of sedentary exertion with only occasional climbing of ramps and stairs,
stooping, balancing and crouching. (R. at 49). In response, the Expert suggested the hypothetical
person could be a table worker, an addressor or mail sorter or an electric or electronic assembler,
such as with semiconductors. (R. at 49). If the second hypothetical person required two extra
unscheduled fifteen minute breaks or was absent from the workplace three times or more on a
consistent basis, however, she would be unsuitable for work in the unskilled labor market. (R. at
50-51).
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

12

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
combination of impairments that is severe; (3) whether the medical evidence of the claimant’s
impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., Pt.
404, Subpt. P, App’x 1; (4) whether the claimant’s impairments prevent 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.F.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)22, 1383(c)(3)23; Schaudeck v.

22

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).
23
Section 1383(c)(3) provides in pertinent part:

13

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 fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
“Substantial evidence is defined as ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Ventura v.
Shalala, 55 F. 3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). If the Commissioner’s findings of fact are supported by substantial evidence, they are
conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. When considering a case, a district
court cannot conduct a de novo review 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 affirm a determination by substituting what it considers to be a proper basis.
Chenery, 332 U.S. at 196-97. Further, “even where this court acting de novo might have reached
a different conclusion … so long as the agency’s factfinding is supported by substantial
evidence, reviewing courts lack power to reverse either those findings or the reasonable
regulatory interpretations that an agency manifests in the course of making such findings.”
Monsour Medical Center v. Heckler, 806 F. 2d 1185, 90-91 (3d. Cir. 1986).

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).

14

V.

DISCUSSION
The ALJ determined that Plaintiff has not been under a disability since April 15, 2009,

the date which Plaintiff filed her disability claim.24 (R. at 23). The ALJ concluded that Plaintiff
satisfied the first step of the analysis because she has not engaged in gainful activity during the
time of her disability determination. 20 C.F.R. § 404.1571, et seq.; (R. at 15). Next, the ALJ
found that the Plaintiff’s emphysema; resolved right pleural effusion; probable post
imflammatory scarring of the right lung; erosive gastritis; hepatitis C; endometriosis; headaches;
depression; anxiety; and ADHD are severe impairments that satisfy the second step of Plaintiff’s
analysis. 20 CFR § 416.920(c); (R. at 15). However, in the third step, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ came
to this conclusion because there was no evidence that her severe limitations resulted in the
requisite pulmonary insufficiency; impairment of gas exchange; pneumoconiosis; bronchiectasis;
infections of the lungs; gastrointestinal hemorrhaging; chronic liver disease; weight loss;
alteration of awareness; loss of consciousness; transient postictal manifestations of
unconventional behavior; significant interference with activity during the day; or systemic
manifestations affecting other body systems necessary to meet or equal Listings 3.00, 5.00, 11.00
or any other listing set forth in Appendix 1, Subpart P, Regulations No. 4. (R. at 16). The ALJ
further concluded that Plaintiff’s mental impairments did not satisfy the criteria of listings 12.04
and 12.06. (R. at 16).

24

Although Plaintiff alleged disability beginning March 1, 2000, the earliest month that a Plaintiff may receive
payments is the month following the month in which the application was filed. 20 C.F.R. § 416.335. Therefore, the
ALJ considered Plaintiff’s disability as of April 15, 2009. (R. at 23).

15

As such, the ALJ concluded under the fourth step that Plaintiff has the residual functional
capacity to perform sedentary work as defined in 20 CFR § 416.967(a), except that she is limited
to occasional balancing, stooping, crouching, and climbing ladders, ramps, and stairs; no
climbing ropes or scaffolds; occasional kneeling and crawling; and must avoid exposure to
fumes, odors, gases, chemicals, extreme heat or cold, and extreme wetness or humidity. (R. at
18). Further, Plaintiff would be limited to simple, routine, repetitive tasks, with no fast-paced
production and involving no more than simple work-related decisions and no more than
infrequent changes in work setting and may have only occasional interaction with coworkers,
supervisors and the public. (R. at 18). Upon finding underlying physical or mental impairments
that could have reasonably been expected to produce Plaintiff’s pain, the ALJ evaluated the
intensity, persistence and limiting effects of those symptoms and found that Plaintiff’s subjective
statements concerning these symptoms to not be credible to the extent they were inconsistent
with the record. (R. at 19). Then, in the last step, the ALJ concluded that based upon Plaintiff’s
age, education, work experience and residual functional capacity, there was a significant number
of jobs which she could perform. 20 C.F.R. §§ 416.969 and 416.969(a); (R. at 22).
Plaintiff contends that the ALJ’s calculation of Plaintiff’s Residual Functional Capacity is
not supported by substantial evidence due to his failure to properly discuss pertinent and
probative evidence.25 Docket No. 9 at 12. Defendant responds in its Motion for Summary
Judgment that the evidence of record fails to establish her inability to work and further argues
that the ALJ’s decision is supported by substantial evidence. (Docket No. 11 at 1). For the
following reasons, the Court finds that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence and will thus affirm the ALJ’s opinion.

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Plaintiff does not present any argument that her mental impairments establish her disability. Therefore, the
Court’s discussion will only directly address evidence related to Plaintiff’s physical impairments.

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A.

ALJ’S RESIDUAL FUNCTIONAL CAPACITY DETERMINATION

Plaintiff first argues that the ALJ erred by failing to properly address the issue of her time
off-task in the Residual Functional Capacity determination. (Docket No. 9). Specifically,
Plaintiff submits that the ALJ ignored her testimony that she becomes incapacitated due to her
pain for 10-45 minute periods that occur about six days a week and at least seven times per day.
(Docket No. 9 at 14-15). She contends this testimony is supported by Dr. Scheler’s medical
records. Id. As such, Plaintiff alleges that an individual who is incapacitated for extended periods
of time on a daily basis would be unsuitable for gainful employment and therefore, the ALJ’s
decision should be reversed. Id. at 15. The Court disagrees.
A claimant’s residual functional capacity is defined as “that which an individual is still
able to do despite the limitations caused by his or her impairment(s).” 20 C.F.R. §
404.1525(a)(1); see also Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.2001) (quoting Burnett
v. Commissioner of Social Security, 220 F.3d 112, 121 (3d Cir.2000) (quotations omitted)). The
Commissioner determines a claimant’s residual functional capacity by performing a function-byfunction assessment of a claimant’s ability to do work related activities. see S.S.R. 96–8, 1996
WL 374184, at *1 (holding that, in determining a claimant's residual functional capacity, the
Commissioner “must first identify the individual's functional limitations and restrictions and
assess his or her work-related abilities on a function-by-function basis”); see also 20 C.F.R. §§
404.1545, 416.945; Salles v. Commissioner of Social Security, 229 Fed. App’x. 140, 149 n.7 (3d
Cir. 2007)). In making this assessment, the Commissioner must consider all impairments,
including those determined to be non-severe. 20 C.F.R. § 404.1545(a)(2). The Commissioner
must also consider all of the evidence of record in making a residual functional capacity
determination. Burnett, 220 F.3d at 121 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir.

17

1999); Doak v. Heckler, 790 F.2d 26, 29 (3d Cir.1986)). The evidence of record includes all
medical records, as well as “observations made during formal medical examinations,
descriptions of limitations by the claimant and others, and observations of the claimant's
limitations by others.” Fargnoli, 247 F.3d at 41. “Although the ALJ may weigh the credibility of
the evidence, he must give some indication of the evidence which he rejects and his reason(s) for
discounting such evidence.” Burnett, 220 F.3d at 121 (citations omitted).
In this Court’s estimation, the ALJ’s conclusion that Plaintiff was capable of performing
sedentary work limited to simple, routine, repetitive tasks is supported by the evidence identified
in the record. The ALJ considered and summarized Plaintiff’s testimony at the hearing as well as
her self-reported symptoms in the record. (R. at 19). The ALJ then provided a functional analysis
while discussing how Plaintiff’s alleged endometriosis-related limitations were contradicted by
medical evidence and Plaintiff’s own evidence regarding her activities of daily living. (R. at 1920). This analysis was further supported by the ALJ’s examination of the medical opinions
contained in the record. (R. at 20-21). Further, Plaintiff has presented no medical evidence that
establishes her alleged limitations. Therefore, based upon the following analysis, the Court finds
that the ALJ’s residual functional capacity assessment is supported by substantial evidence.
1. PLAINTIFF’S TESTIMONY AND ALJ’S CREDIBILITY ASSESSMENT
Plaintiff’s initial challenge to the ALJ’s residual functional capacity determination is that
the ALJ improperly failed to discuss his rationale for rejecting Plaintiff’s testimony describing
her subjective complaints of pain. (Docket No. 11 at 15). “An ALJ must give serious
consideration to a claimant's subjective complaints of pain, even where those complaints are not
supported by objective evidence.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). If the
ALJ determines that the complaints of pain are supported by medical evidence, the ALJ must

18

“determine the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). These
complaints of pain will be given “great weight” if they are supported by the evidence of the
record. Mason, 994 F.2d at 1067–1068. However, the ALJ may reject the plaintiff’s subjective
complaints so long as the ALJ specifies his reasons for rejecting the claim and supports the
conclusion by identifying conflicting evidence in the record. Rutherford v. Barnhart, 399 F.3d
546, 554 (3d Cir. 2005). Moreover, under the applicable regulations, the ALJ may consider
Plaintiff's daily activities as a valid factor when determining the reliability of the claimant’s
subjective complaints. 20 C.F.R. § 404.1529(c)(3).
Plaintiff argues that the ALJ erred because he “rejecte[d] pertinent or probative evidence
without explanation.” Johnson v. Commissioner of Social Security, 529 F.3d 198, 203-204 (3d
Cir. 2008). The Court finds that the ALJ sufficiently identified evidence in the record that
supports his conclusion and provided an explanation as to why Plaintiff’s testimony was rejected.
(R. at 19). Initially, it is clear the ALJ did consider and partially credited Plaintiff’s testimony by
concluding that “[Plaintiff]’s statements concerning the intensity, persistence and limiting effects
of these symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” (R. at 19). The ALJ discussed these inconsistencies, while
addressing the residual functional capacity determination, with supporting facts based upon
Plaintiff’s self-reported activities. (R. at 19). As a single mother, Plaintiff has been able to care
for both of her children as well as their dog, (R. at 160); although it does appear she receives
some help from the children’s father and his family. (R. at 46). She can also care for herself, as
records from treating and consulting sources consistently noted that Plaintiff displayed adequate
appearance and hygiene. (R. at 235-253, 262, 344, 364). Further, Plaintiff is able to perform

19

routine household tasks, including preparing all three meals, cleaning, doing laundry and
shopping. (R. at 161).
The ALJ’s decision to partially credit Plaintiff’s testimony is further supported by
substantial medical evidence. (R. at 19). Plaintiff complains about the scarring in her lung, but
she has only undergone one LEEP procedure to treat this impairment which occurred over five
years prior to the hearing. (R. at 33). Plaintiff alleges most of her pain comes as a result of her
endometriosis. (R. at 33). Although Plaintiff has required treatment for her physical impairments;
there is no evidence which suggests any ongoing treatment other than medication, which has not
been recently changed nor have the dosages been altered. Finally, no portion of the evidence,
other than Plaintiff’s own complaints, discusses Plaintiff suffering from pelvic pain so severe
that it results in incapacitation, let alone the constant, daily dehabilitating pain described during
her testimony.
Plaintiff further contends that she is incapable of completing tasks not just because of her
pain, but also because she experiences difficulty in maintaining concentration. (R. at 45, 251).
The ALJ recognized and included a moderate limitation in her residual functional capacity and
supported his findings with substantial evidence in the record. (R. at 17). Despite Plaintiff’s
diagnosis with depression, insomnia and anxiety, she was consistently cooperative while
displaying coherent thoughts and did not suffer from any disturbances while meeting with her
physicians. (R. at 235-253, 262, 344, 364). She also responded appropriately to all of her
questions at the hearing without any overt lapses in concentration. (R. at 20). As a result,
Plaintiff is not limited to the extent she alleges, and is instead capable of performing simple,
repetitive tasks without fast-paced production and involving no more than simple work-related
decisions. (R. at 18).

20

For these reasons, the Court holds that the ALJ's explanation of his credibility
determination provides substantial analysis as to support Plaintiff’s RFC determination.
2. RELIANCE ON PHYSICIANS’ OPINIONS
Plaintiff next contends that the ALJ erred by not giving Dr. Scheler’s opinion greater
weight, arguing that his treatment notes support her testimony that she is incapacitated on a
regular, daily basis due predominately to her endometriosis-related pain. (Docket No. 9 at 15). It
is well settled that “[a] cardinal principle guiding disability eligibility determinations is that the
ALJ accord treating physicians’ reports great weight, especially when their opinions reflect
expert judgment based on a continuing observation over a prolonged period of time.” Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted). The opinions of a treating physician
merit greater weight because “these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.
2001) (citing 20 C.F.R. § 404.1527(d)(2)). However, a treating physician’s opinion will only be
given controlling weight where it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant's] case record.” Fargnoli, 247 F.3d at 43 (alteration in original) (quoting 20 C.F.R.
§ 404.1527(d)(2)).
If the treating physician’s opinion conflicts with that of a non-treating physician, “the
ALJ may decide whom to credit but cannot reject evidence for no reason or for the wrong
reason.” Morales, 225 F.3d at 317. Although treating and examining physician opinions often

21

deserve more weight than the opinions of doctors who merely review records, see, e.g., 20
C.F.R. § 404.1527(d)(1)-(2), “[t]he law is clear ... that the opinion of a treating physician does
not bind the ALJ on the issue of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n. 2
(3d Cir. 2011). An ALJ may afford such an opinion less weight, “depending on the extent to
which supporting explanations are provided.” Plummer, 189 F.3d at 429 (citing Newhouse v.
Heckler, 753 F.2d 283, 286)). Indeed, reports in which a physician only checks a box or fills in
blanks should not be afforded the same weight as actual medical evidence unless accompanied
by a written report. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993). State agency opinions
merit significant consideration as well. See SSR 96–6p (“Because State agency medical and
psychological consultants ... are experts in the Social Security disability programs, ... 20 C.F.R.
§§ 404.1527(f) and 416.927(f) require [ALJs] ... to consider their findings of fact about the
nature and severity of an individual's impairment(s)....”); see also Chandler v. Comm'r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Prior to reviewing the opinions of each of Plaintiff’s physicians, the ALJ noted that none
of their opinions directly addressed Plaintiff’s “physical ability to perform work-related
activities.” (R. at 20). The ALJ first analyzed the records and opinion of Plaintiff’s primary care
physician, Dr. Scheler, who had determined on a Pennsylvania Department of Welfare Form that
Plaintiff was disabled due to her physical and mental impairments. (R. at 382). The Court agrees
with the ALJ’s decision to give Dr. Scheler’s ultimate disability opinion little weight because
even though he was Plaintiff’s primary treating physician, his records do not contain sufficient
medical evidence to conclude Plaintiff is disabled. Fargnoli, 247 F.3d at 43. Neither a function
by function analysis nor a written report accompanying the disability determination was included
in Dr. Scheler’s records. See Mason, 994 F.2d at 1055 (“Form reports in which a physician's

22

obligation is only to check a box or fill in a blank are weak evidence at best”). As such, the
record does not suggest evidence of frequent and debilitating pain. Rather, the records reveal that
Dr. Scheler prescribed Vicodan, Motrin, and Bentyl to address her symptoms. (R. at 261).26
Plaintiff testified that Dr. Scheler told her nothing could be done with respect to her pain or
bleeding, (R. at 43), but this statement is not corroborated by Dr. Scheler’s own records and the
Court has already agreed with the ALJ’s conclusion that Plaintiff’s testimony is only partially
credible. Critically, Dr. Scheler’s medical assessment form asserting Plaintiff’s disability did not
give any explanation as to how Plaintiff’s impairments caused her alleged inability to work. (R.
at 382). Thus, substantial evidence supports the ALJ’s decision to give Plaintiff’s primary
treating physician’s report little weight.
On the other hand, Dr. Fox’s opinion of Plaintiff’s physical condition was supported by
substantial evidence. Accordingly, the ALJ properly gave more weight to Dr. Fox’s opinion than
the unsupported opinion of Dr. Scheler. (R. at 21). Although Plaintiff suffered from erosive
gastritis and inflammatory bowel disease, Dr. Fox correctly noted that she had yet to receive
treatment for either. (R. at 360). Based upon Plaintiff’s statements regarding her symptoms and
their effects, the treatment she received, and her responses to treatment, Dr. Fox determined that
Plaintiff’s statements were only partially credible. (R. at 361). His report was given some weight,
as his findings were consistent with the rest of the record. (R. at 21). Yet, the ALJ also pointed
out that Dr. Fox underrepresented certain of Plaintiff’s limitations based on the evidence, which
is why his report was not given greater weight. (R. at 21). Nevertheless, Dr. Fox is a state agency

26

Other possible courses of treatment for endometriosis include treatment of hormone medications to prevent the
endometriosis from worsening or surgery to remove the areas of endometriosis or the entire uterus and ovaries. See
PubMed Health, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001913/(last viewed on Mar. 18,
2013).

23

physician and ultimately, the ALJ found his findings were supported by sufficient evidence of
record. Chandler, 667 F.3d at 361.
The opinion by Dr. Kennedy was also given some weight by the ALJ and his specific
findings were given greater weight because they were consistent with the record. (R. at 21). Dr.
Kennedy had observed that Plaintiff portrayed sufficient concentration and memory during their
session, although she alleged difficulty in maintaining focus. (R. at 347). The rest of Dr.
Kennedy’s specific findings were very similar with that of Dr. Heil, a non-examining
psychologist, whose opinion was also given some weight. (R. at 21). Neither physician found
that Plaintiff was markedly limited in any aspect of their abilities, (R. at 351, 362-363), but Dr.
Heil found that Plaintiff was moderately limited in her ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and perform at a
consistent pace without an unreasonable number and length of rest periods. (R. at 363).
The Court agrees with the ALJ’s conclusion that Dr. Scheler’s opinion was not only
inconsistent with those of the other physicians involved, but it was also inconsistent with the
entirety of the record. It is the ALJ’s duty to weigh the evidence and resolve conflicts between
medical sources, providing adequate support in the record for each conclusion. See Morales, 225
F.3d at 317. The ALJ satisfied his duty in this case. Therefore, the ALJ’s residual functional
capacity determination has been supported by substantial evidence.
B.

ALJ’S CONSIDERATION OF THE HYPOTHETICAL QUESTIONS

Plaintiff advances a final argument that the ALJ did not properly address or consider the
vocational expert’s answer to the hypothetical question whereby a person who requires two
additional, unscheduled 10-15 minute work breaks during the course of a day would be
unemployable. (Docket No. 9 at 14). For the ALJ to consider a vocational expert’s answer to a

24

hypothetical question as substantial evidence, it must accurately include all of the claimant’s
physical and mental impairments. Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (citing
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). However, “[s]imply because a
hypothetical was posed, does not mean that there was sufficient evidence to support it; the ALJ
ultimately relies upon only credible, medically established limitations.” Menuto v. Astrue, 2012
WL 2594339, at *9 (W.D. Pa. June 13, 2012) (citing Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005)). “Limitations that are medically supported and otherwise uncontroverted in the
record, but that are not included in the hypothetical question posed to the expert, preclude
reliance on the expert’s response.” Burns, 312 F.3d at 12. If the limitation is medically supported
but also contradicted by other evidence in the record, the ALJ may determine whether the
evidence is credible, but “cannot reject evidence for no reason or for the wrong reason.” Mason
v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993); 20 C.F.R. § 416.929(c)(4).
The Court has already determined that the ALJ’s residual functional capacity
determination was supported by substantial evidence. Additionally, the record contains no
evidence aside from Plaintiff’s testimony, which the ALJ properly rejected, that supports
Plaintiff’s contention that she requires an inordinate amount of breaks, rendering her disabled.
Therefore, the hypothetical question and answer relied upon by the ALJ which indicated Plaintiff
was suitable for employment accurately included all of the claimant’s physical and mental
impairments. Burns, 312 F.3d at 123. See Johnson v. Comm'r of Soc. Sec., 398 F. App'x 727, 736
(3d Cir. 2010) (holding that a hypothetical question which included the need to take constant
breaks was irrelevant where the ALJ’s residual functional capacity assessment did not include
this limitation); Fletcher v. Massanari, 2002 WL 32348331 (E.D. Pa. Mar. 14, 2002) (holding
that ALJ’s reliance on hypothetical which did not include the need for constant breaks was not

25

erroneous where only proof of Plaintiff’s physical limitation was her own testimony).
Accordingly, the ALJ did not err by refusing to adopt the suggested limitations because they
were not supported by appropriate medical evidence.
In all, the Court finds that the ALJ’s decision to not explicitly include the claimed
limitation in the Residual Functional Capacity analysis was supported by substantial evidence.
VI.

CONCLUSION
Based upon the foregoing, the decision of the ALJ is supported by substantial evidence in

the record. Reversal or remand of the ALJ’s decision is not appropriate. Accordingly, Plaintiff’s
Motion for Summary Judgment (Docket No. 8) is denied, Defendant’s Motion for Summary
Judgment (Docket No. 10) is granted, and the decision of the ALJ is affirmed. Appropriate
Orders follow.
s/ Nora Barry Fischer
Nora Barry Fisher
United States District Judge
Dated: March 20, 2013
cc/ecf: All counsel of record.

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