KOSLOVIC v. ASTRUE
Filing
15
MEMORANDUM AND OPINION re 11 denying MOTION for Summary Judgment filed by CHARLES RICHARD KOSLOVIC, JR., and granting 13 MOTION for Summary Judgment filed by MICHAEL J. ASTRUE,. Signed by Magistrate Judge Robert C. Mitchell on 05/30/2013. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES RICHARD KOSLOVIC, JR.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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2: 12-CV-1745
MEMORANDUM and ORDER
Mitchell, M.J.:
Presently before the Court for disposition are cross motions for summary judgment.
On December 3, 2012, Charles Richard Koslovic Jr., by his counsel, filed a
complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g)
for review of the Commissioner's final determination disallowing his claim for Supplemental
Security Income benefits under Sections 1614 and 1631 of the Act, as amended, 42 U.S.C. §1381
cf. For the reasons set forth below, the plaintiff’s motion for summary judgment (ECF 11) will
be denied; the defendant’s motion for summary judgment (ECF 13) will be granted and the
determination of the Commissioner will be affirmed.
The instant application for Supplemental Security Income Benefits was filed on
June 4, 2009 (R.172-178). On September 1, 2009, benefits were denied (R.89-93). On October
8, 2009, the plaintiff requested a hearing (R.94) and pursuant to that request a hearing was held
on March 30, 2011 and continued to July 11, 2011 (R.30-80). In a decision filed on August 17,
2011, an Administrative Law Judge denied benefits (R.12-25). On October 15, 2012, the Appeals
Council affirmed the prior determination (R.1-3). The instant complaint was filed on December
3, 2012.
In reviewing an administrative determination of the Commissioner, the question
before any court is whether there is substantial evidence in the agency record to support the
findings of the Commissioner that the plaintiff failed to sustain his/her burden of demonstrating
that he/she was disabled within the meaning of the Social Security Act. Richardson v. Perales,
402 U.S. 389 (1971); Adorn v. Shalala, 40 F.3d 43 (3d Cir. 1994).
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing. The findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive....
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v.
Camber. 529 F.3d 198 (3d Cir. 2008) and the court may not set aside a decision supported by
substantial evidence. Hartranft v. Apfel, 181 F.3d 358 (3d Cir. 1999)
The purpose of the Supplemental Security Income Program is to provide additional
income to persons of limited resources who are aged, blind or disabled persons. 42 U.S.C. §1381;
Chalmers v. Shalala, 23 F.3d 752 (3d Cir. 1994). To be eligible for such benefits, an individual's
income must not exceed a certain established maximum and he/she must fulfill certain eligibility
requirements.
As set forth in 20 C.F.R. § 416.905(a) disability is defined as:
The inability to do any substantial gainful activity by reason of
any 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 not less than 12
months.
In addition, a person will be considered disabled if he/she is
(a) ... permanently and totally disabled as defined under a State
plan approved under title XIV or XVI of the Social Security Act,
as in effect for October 1972; (b) ... received aid under the State
plan ... for the month of December 1973 and for at least one
month prior to July 1973; and (c) ... continue[s] to be disabled as
defined under the State plan.
20 C.F.R. § 416.907.
A physical or mental impairment is defined in 20 C.F.R. §416.908 as an:
impairment [which] result[s] from anatomical, physiological, or
psychological abnormalities which [are demonstrated] by
medically acceptable clinical and laboratory diagnostic
techniques.
For purposes of determining whether or not the plaintiff met the eligibility
requirements, certain evidence was considered by the Commissioner.
At the hearing held on March 30, 2011 and continued to July 11, 2011 (R.30-80),
the plaintiff appeared with counsel (R.40) and testified that he was born on February 21, 1971
(R.45); that he completed high school (R.48); that he worked in heavy construction (R.48); that he
last worked in 2004 (R.52) and that he is receiving public assistance (R.46).
The plaintiff also testified that he experiences back, neck and leg pain (R.57); that
his back has gotten worse (R.51); that he takes pain medication and attends therapy (R.53,54-55);
that he can sit for about twenty minutes (R.57); that he spends most of his day in bed and
occasionally cannot get out of bed (R.58, 69); that he does not perform any household chores
(R.60); that in 2003 he was diagnosed with a bi-polar disorder (R.62) and that he experiences
anxiety attacks and anger management problems (R.62).
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At the hearing a vocational expert was called upon to testify (R.76-79). He
characterized the plaintiff’s past work as heavy skilled labor (R.77). When asked to assume an
individual of the plaintiff’s age, education and past work experience who is limited to sedentary
work activity the witness responded that such an individual could not perform the plaintiff’s prior
work but would be capable of participating in a large number of other gainful activities (R.78).
However, he further testified that if the individual was “off task” at least fifteen to twenty percent
of the workday, he could not be gainfully employed (R.78). The same conclusion could be drawn
if the individual had to take several unscheduled breaks during the day (R.79).
In addition, certain other evidence was considered.
The plaintiff was approved for return to work as a brick-layer on January 23, 2002
(R.467).
The plaintiff received treatment at the University of Pittsburgh Physicians between
January 23, 2002 and May 15, 2002. On the latter date it was reported that the plaintiff had
minimal scaphoid tenderness, was back to work full-time and had “great” range of motion in his
wrist and fingers (R.453-456).
In a report of an MRI performed on August 21, 2001 a small L4-L5 disc bulge was
observed (R.458).
In a report from the Western Pennsylvania Hospital dated October 8, 2002,
following an evaluation for left-sided low back pain, physical therapy and anti-inflammatory
agents were recommended (R.459-462).
X-rays of both of plaintiff’s wrists taken on December 8, 2003 did not disclose a
fracture or dislocation (R.469-470).
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In a report dated December 30, 2003, Dr. B.L. Rottschaefer noted chronic
lumbosacral strain and cervical strain which was becoming worse with time, as well as moderate
depression. The plaintiff’s depression was said to not be limiting and the doctor observed that the
plaintiff could not physically perform his prior work as a mason (R.472-480).
The plaintiff was treated at the East Suburban Orthopedic Associates between
December 8, 2003 and January 15, 2004 for a wrist fracture which healed with good alignment. It
was concluded that he could return to his normal activities (R.482-483).
The plaintiff was treated by Dr. Rottschaffer between December 7, 2001 and
February 20, 2004 for a right scaphoid fracture and lumbosacral and cervical strain as well as a
wrist fracture. Medication and exercise were prescribed (R.485-522).
The plaintiff was treated at the University of Pittsburgh Physicians between
January 18, 2008 and November 14, 2008. He had a healed scaphoid fracture with a screw in
place, ulnar impact syndrome and right wrist pain (R.241-266).
The plaintiff was treated at West Penn Hospital between April 17, 2009 and April
20, 2009 for managements of multiple abscesses. The latter were drained and treated with
antibiotics (R.269-292).
The plaintiff was treated at the Creighton Medical Center between September 17,
2007 and July 10, 2009 for MRSA abscesses, hepatitis C, chronic back pain and allergies (R.293324).
In a residual functional report completed on August 31, 2009, it was noted that the
plaintiff could occasionally lift one hundred pounds, frequently lift fifty pounds and stand, walk
or sit for about six hours (R.82-88).
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In a psychiatric review completed on August 31, 2009, Douglas Schiller, Ph.D.
noted a mild anxiety disorder (R.325-337).
The plaintiff had various examinations conducted between April 17, 2009 and
October 6, 2010 for abscesses, cervical, lumbar, ankle and wrist strains (R.361-398).
The plaintiff was treated at the Alli-Kiski Medical Center between February 15,
2011 and February 19, 2011 for low back pain following a motorcycle accident (R.401-405).
In a note of treatments on February 17, 2011 and March 7, 2011, Robert A. Biddle,
D.C. diagnosed lower back pain and performed manipulations (R.400).
The plaintiff was treated by Dr. Mir between August 27, 2008 and April 15, 2011
for arthritis and low back problems. Medication was prescribed (R.338-360).
The plaintiff was treated at the New Kensington Family Health Center between
November 10, 2010 and May 25, 2011. An MRI revealed lumbar facet hypertrophy and disc
bulging as well as cervical degeneration. Anxiety was also diagnosed and treated (R.406-430).
In a report of an evaluation conducted on May 31, 2011 at Milestone Centers, Inc.
a diagnosis of bipolar II disorder and panic disorder was made (R.431-446).
In a residual functional capacity evaluation completed on June 23, 2011,
depression and anxiety are noted. In addition it was reported that the plaintiff could walk, stand or
sit for fifteen minutes, and frequently lift ten pounds (R.447-452).
A report covering outpatient treatment at Milestone between the period from May
31, 2011 and September 15, 2011 notes depression, anxiety and a bipolar and panic disorder
(R.523-540).
Based on the evidence presented, the Commissioner determined:
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The claimant has the following severe impairments: lumbar and cervical
degenerative disc disease, bipolar disorder, and anxiety disorder. The impairments
… cause the more than the minimal limitations in work-related functions. The
claimant's impairments restrict his physical and mental functional capacity. While
it is reasonable to find that these impairments limit his functioning, the limitations
are fully accommodated by [his] residual functional capacity [determination].
The claimant's degenerative disc disease of the lumbar and cervical spine have
been considered … [and] do not meet or medically equal the requirements of any
of the impairments set forth [in the regulations] as he is able to ambulate and
perform fine and gross movements effectively without the use of assistive devices.
The severity of the claimant's mental impairments, considered singly and in
combination, do not meet or medically equal the [disability] criteria…
In activities of daily living, the claimant has moderate difficulties…
With regard to concentration, persistence or pace, the claimant has moderate
difficulties…
As for episodes of decompensation, the claimant has experienced no episodes of
decompensation, which have been of extended duration.
Because the claimant's mental impairments do not cause at least two "marked"
limitations or one "marked" limitation and "repeated" episodes of
decompensation, each of extended duration, the … [disability] criteria are not
satisfied…
Further, the claimant is found to have only mild restriction in his activities of daily
life because of his mental health impairments…
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work …
After careful consideration of the evidence, I find that the claimant's medically
determinable impairments could reasonably be expected to cause the alleged
symptoms, however, the claimant's statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the … residual functional capacity assessment.
Despite his allegations of on-going pain, the various medical providers noted that
he could walk without assistance, had appropriate extremity strength and had a
good range of motion in that he could flex and extend his spine with no
difficulties…
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With reference to the claimant's mental disorders … he was … found to have a
global assessment of functioning … scores of 55 to 65, indicative of mild to
moderate symptoms...
In addition to considering the claimant's medical records with reference to his
diagnoses, I have considered the claimant's credibility. The record reflects
significant gaps in the claimant's history of treatment. Additionally, the record
reveals that the claimant failed to follow-up on recommendations made by the
treating doctors. At times, the claimant would fail to show for appointments. He
also failed to follow up with medications and only attended one physical therapy
session. Further, in May 2011, the claimant's primary care physician noted that he
did not trust giving the claimant a prescription pain medication given the
claimant's inconsistent history. His lack of follow through and minimal treatment
suggests that the symptoms may not have been as serious as has been alleged…
The record also includes various inconsistent statements made by the claimant…
A review of the claimant's work history shows that the claimant worked only
sporadically prior to the alleged disability onset date. This raises a question as to
whether the claimant's continuing unemployment is actually due to medical
impairments…
After a careful consideration of all the evidence and from the opinion evidence as
weighed, I do not find the claimant credible. Further, I find that the residual
functional capacity assessment … is supported by the totality of the evidence …
Because the claimant is limited to a residual functional capacity for sedentary
work, he is unable to perform his past relevant work …
Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform … I [also] conclude that … the claimant is
capable of making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of "not disabled" is therefore
appropriate … (R.17 -25).
Credibility determinations are resolved by the Commissioner. Diaz v.
Commissioner, 577 F.3d 500, 506 (3d Cir. 2009). The evidence presented demonstrates
that while the plaintiff experiences musculo-skeletal impairments the conclusion that he
has exaggerated their impact is supported by the record. Clearly, as the Commissioner
concluded, Koslovic is unable to return to his former limited employ in heavy construction
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but the finding that he is capable of engaging in sedentary work is supported by the record.
Additionally, while he also suffers from mental impairments, the record also supports the
conclusion that either individually or in combination, these too do not meet the criteria for
a finding that they are disabling. Rather, with limited restriction on his work environment,
the plaintiff should be able to maintain gainful employment.
Summary judgment is appropriate where there are no material factual
issues in dispute and the movant is entitled to judgment as a matter of law. Lichtenstein v.
UPMC, 691 F.3d 294, 300 (3d Cir. 2012). In the instant case there are no material issues
of fact in dispute, and the findings of the Commissioner are supported by substantial
evidence. For this reason, the plaintiff’s motion for summary judgment will be denied; the
defendant’s motion for summary judgment will be granted and the decision of the
Commissioner will be affirmed.
An appropriate Order will be entered.
s/ Robert C. Mitchell,
United States Magistrate Judge
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ORDER
AND NOW, this 30th day of May, 2013, for the reasons set forth in the foregoing
Memorandum, the plaintiff's Motion for Summary Judgment (ECF 11) is DENIED; the
defendant's Motion for Summary Judgment (ECF 13) is GRANTED, and the determination of the
Commissioner is AFFIRMED.
s/ Robert C. Mitchell
United States Magistrate Judge
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