JOHNSON v. ASTRUE

Filing 17

MEMORANDUM OPINION resolving 12 and 14 the parties cross-motions for Summary Judgment. Signed by Judge David S. Cercone on 2/25/14. (kak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES TIMOTHY JOHNSON,

)
)
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)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

2:13-cv-0071
Electronic Filing
Judge David S. Cercone

OPINION
I.

INTRODUCTION
Charles Timothy Johnson (“plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g)

seeking judicial review of the final determination of the Commissioner of Social Security
(“defendant”) denying his applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“the
Act”). 42 U.S.C. §§ 401-433, 1381-1382f. The record has been developed at the administrative
level. The matter is before the court on cross-motions for summary judgment. (Docket Nos. 12,
14). For the reasons that follow, plaintiff’s motion [12] will be denied and defendant’s motion
[14] will be granted.
II.

PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on June 8, 2009, alleging that he had been disabled

since October 17, 2007 due to prostate cancer, low back pain and depression. R. at 82, 179-180,
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013, succeeding former Commissioner Michael J. Astrue. Social Security History-Social
Security Commissioners, http://www.ssa.gov/history/commissioners.html (as visited on August
13, 2013). Consequently, Acting Commissioner Colvin is now the official-capacity defendant in
this action. Hafer v. Melo, 502 U.S. 21, 25 (1991); Fed. R. Civ. P. 25(d).
1

183-189. Both claims were denied on December 3, 2009. R. at 97. On December 10, 2009,
plaintiff requested a hearing. R. at 97, 99-108. On May 24, 2011, a hearing was held before
Administrative Law Judge (“ALJ”) Brian Wood.

R. at 31.

The ALJ denied plaintiff’s

application for benefits on July 27, 2011. R. at 12-24. Plaintiff’s request for review by the
Appeals Council was denied on November 30, 2012. R. at 1-5. The instant action followed.
III.

STATEMENT OF THE CASE
a. General background
Plaintiff was born on July 24, 1961, making him 46 years of age at the time of his alleged

onset date and 492 years of age at the time of the hearing. R. at 12, 22, 34. Plaintiff served as a
mechanic in the Army Reserve from June 1979 to June 1982. R. at 225. He had additional work
experience as a concrete tester, a concrete pump supervisor, a newspaper stacker, a truck driver
and an industrial cleaner but has not been employed since 2006. R. at 35-37, 225-232. Plaintiff
was incarcerated from 2006 to 2009 for distribution of narcotics and upon release was sent to a
half-way house. R. at 38-39, 464. He has a common-law wife who was employed at the time of
the hearing. R. at 34-35. His source of income has been public assistance. R. at 34. Plaintiff
completed high school. R. at 35.
A typical day for plaintiff consists of talking to his mother on the telephone, watching
television, and occasional cleaning. R. at 47-48, 52, 465. At the time of the hearing plaintiff
asserted that he could do little with regard to household chores, but he was able to prepare some
types of food and wash his own dishes. R. at 49. Plaintiff attended church, but not every
Sunday. R. at 50. He described himself as less tolerant than he used to be but still a “very
friendly guy.” R. at 51.
2

The SSA’s regulations define “younger person” as a person who is less than 50 years of
age. 20 C.F.R. §§ 404.1563, 416.963.
2

b. Mental treatment history
Plaintiff has a history of substance abuse and psychiatric treatment. R. at 1274. He
reported that he attempted suicide in the 1980’s. Id. Over the course of several years plaintiff
periodically was treated for mental health issues at the Butler Pennsylvania Veterans Affairs
hospital (“Butler VA”), where he received the following diagnoses: depression, chronic anxiety,
substance addiction, and obsessive compulsive versus personality disorder. R. at 642, 11471148, 1259-1262, 1270.
On August 22, 2003, plaintiff screened negative for depression at Butler VA. R. at 895896. An alcohol screening was also administered, with plaintiff scoring a three.3 R. at 896.
Plaintiff also was treated for cocaine dependency at this time. Id. Depression and alcohol
screenings were both negative on January 8, 2004, and plaintiff stated that he had not had any
alcohol in the past year. R. at 898-899. On January 28, 2004, plaintiff’s depression and alcohol
screenings remained negative. R. at 927.
Records indicate that plaintiff was suffering from depression on May 18, 2004. R. at
892. On February 8, 2006, plaintiff’s depression screen was negative again but his alcohol
screen was positive. R. at 931. Plaintiff telephoned Butler VA on November 13, 2006, asking to
be admitted because his “mind [wasn’t] acting right.” R. at 991. Plaintiff denied that he was
suicidal. Id. On March 16, 2009, plaintiff’s depression and alcohol screens were negative. R. at
935, 983-987.
After his release from incarceration, plaintiff suffered from depression and chronic
anxiety related to his cancer diagnosis. R. at 1149, 1151, 1169. On March 12, and June 17,
3

The CAGE alcohol screening test is used to identify lifetime problems with alcohol. A
score of two or higher constitutes a positive test and indicates the need for further assessment.
National Institute on Alcohol Abuse and Alcoholism, Screening tests, available at
http://pubs.niaaa.nih.gov/publications/arh28-2/78-79.htm (last visited January 9, 2014).
3

2010, plaintiff screened positive for moderate depression; his alcohol tests remained negative. R.
at 1149, 1169-1170. Notes from those visits indicate he was alert, well groomed, coherent and
did not suffer from psychotic symptoms or suicidal ideation. R. at 1149, 1171.
On March 18, 2011, plaintiff reported that he was suffering from increased anxiety as
well as obsessing over cleaning and rechecking things in his home. R. at 1259-1260. His
alcohol screen remained negative and his depressive disorder was in remission. R. at 1261-1262.
Plaintiff was diagnosed with obsessive compulsive disorder versus personality disorder. R. at
1261.
T. David Newman, Ph.D., completed a consultative psychological evaluation of plaintiff
on October 6, 2009. R. at 464. According to Dr. Newman’s report, plaintiff walked one half
mile to attend the appointment. Id. Dr. Newman found plaintiff to be a reasonably reliable
informant. Id. Plaintiff stated that he was disabled from work due to back pain, cancer and
depression. R. at 464. Nevertheless, he was able to do chores, go to the store and watch
television. R. at 465. Dr. Newman found that Plaintiff: was not anxious, made a good degree of
eye contact, spoke clearly, had no difficulty establishing a working rapport, had no history of
perceptual disturbances, and was oriented in all spheres. Id. Plaintiff was diagnosed with crack
cocaine dependence (in a controlled environment due to his parole from prison) and adjustment
disorder with depressed mood. R. at 466. Dr. Newman concluded that plaintiff’s abilities to
understand, remember, and carry out instructions were not limited by his impairments. R. at
466-467. His abilities to respond appropriately to supervisors, co-workers, and work pressures
were not limited either. R. at 466-467.
Grant W. Croyle, Ph.D., performed a consultative evaluation of plaintiff’s medical
records and thereafter completed an assessment of his mental residual functional capacity

4

(“RFC”) on October 9, 2010. R. at 469-472. Dr. Croyle found that the medical evidence
established that plaintiff suffered from depressive disorder versus adjustment disorder with
depressed mood and a history of cocaine dependence. R. at 471. He further found plaintiff’s
statements to be partially credible. Id. He assessed moderate limitations in plaintiff’s abilities to
perform activities within a schedule, maintain regular attendance, be punctual with customary
tolerances, and respond appropriately to changes in the work setting. R at 469-470. Dr. Croyle
opined that Dr. Newman’s finding of no limitations in these areas was inconsistent with the
record evidence. Id. Accordingly, Dr. Croyle granted only partial weight to the opinion of Dr.
Newman. Id. He nevertheless concluded that plaintiff was able to meet the basic mental
demands required for competitive work on a sustained basis despite the aforementioned
limitations. Id.
c. Physical treatment history
Plaintiff was diagnosed with prostate cancer on November 5, 2007 while incarcerated. R.
at 319-320, 502-503. At the time of diagnosis his prostate specific antigen (“PSA”) level was
6.7.4 R. at 293. On June 26, 2008, plaintiff completed a course of radiation therapy, after which
his PSA level dropped to 3.6. Id. In 2009, plaintiff’s PSA number was elevated and he was
treated with implanted radiation seeds5 and Zoladex.6 R. at 41, 500, 1100, 1243. By March 1,
4

“The PSA test is used primarily to screen for prostate cancer. A PSA test measures the
amount of prostate specific antigen (PSA) in your blood. PSA is a protein produced in the
prostate, a small gland that sits below a man’s bladder.”
Mayo Clinic, PSA,
http://www.mayoclinic.com/health/psa-test/MY00180 (last visited Jan. 3, 2014).
5
“Prostate brachytherapy is a form of radiation therapy used to treat prostate cancer.
Prostate brachytherapy involves placing devices containing radiation in the prostate gland, close
to
cancer
cells.”
Mayo
Clinic,
Prostate
brachytherapy,
available
at
http://www.mayoclinic.org/tests-procedures/prostate-brachytherapy/basics/definition/PRC20014309 (last visited Jan. 3, 2014).
6
“Zoladex” is a hormone used to treat cancer of the prostate. Mayo Clinic,
Goserelin/Zoladex, available at http://www.mayoclinic.org/drugs-supplements/goserelinsubcutaneous-route/description/DRG-20067310 (last visited Jan. 3, 2014).
5

2010, plaintiff’s PSA level had decreased to 0.5. R. at 1100. Bone scans conducted on August
3, 2009 and February 18, 2011 did not reveal any metastasis. R. at 1103, 1235-1236. Plaintiff
asserted at the hearing that his prostate cancer was no longer in remission. R. at 42. His counsel
clarified, however, that the medical records did not actually indicate that Plaintiff’s cancer had
returned, only that his PSA levels were elevated and he was receiving further treatment. R. at
42-43.
Plaintiff received treatment at the Butler VA on numerous occasions between August 22,
2003 and April 4, 2011. R. at 522-1291. Treatment notes from March 16, 2009 indicate that
plaintiff suffered from mild degenerative changes in the lumbar spine but that his vertebral body
heights and disc spaces were normal. R. at 445, 523. Although osteophytes7 were present in
Plaintiff’s middle and lower spine, only mild degenerative changes were observed. Id. A
Braden Scale8 was completed during that visit and plaintiff was assessed with ratings of “walks
frequently” and “no limitation” in the respective categories of activity9 and mobility.10 R. at 595.
A bone scan conducted on August 3, 2009, again revealed only mild degenerative changes. R. at

7

“Also called osteophytes, bone spurs often form where bones meet each other—in your
joints. Bone spurs can also form on the bones of your spine. The main cause of bone spurs is
the wear-and-tear damage associated with osteoarthritis. Most bone spurs cause no symptoms
and may undetected for years.”
Mayo Clinic, Osteophytes, available at
http://www.mayoclinic.org/diseases-conditions/bone-spurs/basics/definition/CON-20024478
(last visited Jan. 3, 2014).
8
The Braden Scale measures the likelihood that a patient will develop a pressure ulcer.
U.S. National Library of Medicine, 2012AB Braden Scale Source Information,
http://www.nlm.nih.gov/research/umls/sourcereleasedocs/current/LNC_BRADEN/ (last visited
December 16, 2013).
9
A 4/4 in the category of “activity” means that the patient “walks frequently,” and is able
to walk “outside [the] room at least twice a day and inside [the] room at least once every two
hours during waking hours.” Prevention Plus: the Home of the Braden Scale, Braden Scale for
Predicting Sore Risk, http://www.bradenscale.com/images/bradenscale.pdf (last visited
December 16, 2013).
10
A 4/4 in the category of “mobility” means that patient has “no limitation” in the ability to
“make major and frequent changes in position without assistance.” Id.
6

1235-1236.
Plaintiff complained on April 21, 2010, that “[a]ll my bones hurt. Both legs hurt. I can
hardly do stairs.” R. at 1154. He noted that physical activity exacerbated his pain but that he
was satisfied with his pain management. R. at 1156. On November 16, 2010, plaintiff appeared
at the Butler VA for a checkup and again complained of back pain but stated that he did not have
any new medical issues and he was content with his prescribed pain management. R. at 1286.
Records from Butler VA also indicate that plaintiff was obese, with a body mass index (“BMI”)
of 36; he also had been diagnosed with Stage III chronic kidney disease. R. at 15, 1211, 1287.
Plaintiff began physical therapy for back and neck pain at Butler VA on February 2,
2010. R. at 1184-1185. Fifteen sessions were scheduled, eleven of which plaintiff attended. R.
at 1162-1182. During plaintiff’s second visit on February 4, 2010, he reported that his neck and
back pain had improved. R. at 1184. Two weeks passed before plaintiff returned to physical
therapy on February 18, 2010. Id. He reported increased back pain but attributed it to missing
past sessions. Id. Over the course of the following sessions, from February 23 to March 9, 2010,
plaintiff consistently reported that physical therapy had relieved some of his pain. R. at 11741178.

On March 11, 2010, plaintiff stated that his back and neck had begun to feel “better

overall” as a result of physical therapy. R. at 1173. Further improvement was reported to his
therapists on March 18, 2010. R. at 1166.
During the physical therapy sessions in March of 2010, plaintiff reported that his back
pain was improving but he was still experiencing intermittent pain. R. at 1162, 1165. Treatment
notes from these sessions consistently indicated plaintiff tolerated the therapy well. 1162-1184.
At the Butler VA on April 21, 2010, plaintiff told Daniel Tolciu, D.O., that the physical
therapy and pain medication regimen had been effective in controlling his pain. R. at 1153.

7

Plaintiff, however, elected to discontinue physical therapy on April 23, 2010. R. at 1163.
Plaintiff received a consultative physical examination from Ira E. Baumgartel, M.D., on
November 13, 2009. R. at 487. Dr. Baumgartel observed the following: no edema, good
peripheral pulses, deep tendon reflexes were physiologic, no sensory changes, tight lumbosacral
muscles bilaterally in the lower lumbosacral area, a grip strength of 5+/5+, normal range of
motion in all joints including the upper and lower extremities, normal flexion and extension, and
a normal gait. R. at 489. Dr. Baumgartel further noted that plaintiff was able to walk on his toes
and heels without any difficulty and, although he complained of pain, was able to squat and rise
from a squat. Id. Plaintiff was diagnosed with carcinoma of the prostate, depression and low
back pain. Id. In his report on plaintiff’s ability to perform work-related physical activities, Dr.
Baumgartel assessed plaintiff with the following limitations: lifting no more than ten pounds
occasionally, carrying no more than twenty pounds occasionally, no more than one hour of
standing and walking in an eight hour day, and no more than two hours of sitting during an eight
hour day. R. at 491. Dr. Baumgartel also opined that plaintiff was unable to: bend, kneel, stoop,
crouch, balance or climb. R. at 492.
Nghia Van Tran, M.D., Ph.D., conducted a record review and completed a physical
residual capacity assessment of plaintiff on November 23, 2009. R. at 495-501. Dr. Van Tran
noted that plaintiff had been diagnosed with the impairments of lower back pain and prostate
cancer. R. at 500. Plaintiff was able to walk on the tips of his toes and his heels with no
difficulty. Id. He was able to squat and arise from a squatting position but complained of pain.
Id. Dr. Van Tran further observed that there were no significant complaints of lower back pain
in plaintiff’s medical records. Id. Plaintiff was assessed with the following limitations: able to
lift and/or carry up to twenty pounds occasionally, frequently able to lift and/or carry up to ten

8

pounds, able to stand and/or walk with normal breaks for approximately six hours in an eight
hour day, and able to sit with normal breaks for a total of about six hours in an eight hour day.
R. at 496.
Although the physical findings of Dr. Baumgartel and Dr. Van Tran were similar, Dr.
Van Tran opined that the limitations reported by Dr. Baumgartel were not consistent with the
record evidence. R. at 489, 500-501. Dr. Van Tran found plaintiff’s statements of his condition
to be only partially credible. R. at 501.
d. Administrative hearing
A hearing was held on May 24, 2011, in Seven Fields, Pennsylvania, before the ALJ,
Brian W. Wood.

R. at 31.

Plaintiff was present and was represented by counsel, Marie

Anderson, Esq. R. at 31, 171. An impartial vocational expert, Frances Kinley, M.Ed.,11 also
appeared and offered testimony.

R. at 31, 59. Plaintiff was two months shy of his fiftieth

birthday at the time of the hearing. R. at 34. He was five feet and six inches tall and weighed
209 pounds. R. at 34. Plaintiff’s only sources of income were public assistance and his
common-law wife’s wages. R. at 34-35.
Plaintiff previously served in the Army Reserve. R. at 38. He later worked as a
supervisor in a concrete pump room, lifting between fifteen and thirty pounds. R. at 36. He
thereafter worked as a newspaper and advertisement stacker and lifted between ten and fifteen
pounds. R. at 37. Plaintiff left this position as a result of addiction. Id. Plaintiff also worked as
a sanitation truck driver which required him to lift garbage cans of varying weight. Id. He also
had experience as a residential program worker. Id. The last job plaintiff held was as an
operator for an industrial cleaning company in 2006, where he lifted up to twenty pounds. R. at
11

Ms. Kinley completed her Masters of Education in Rehabilitation Counseling at
Pennsylvania State University. R. at 139. She has been self employed as a vocational expert
since 1994. Id.
9

35. Plaintiff also left that position due to an addiction problem. R. at 35-36.
Plaintiff was incarcerated from 2006 to 2009. R. at 38. He was released in February of
2009, at which time he went to a halfway house. Id. While at the halfway house plaintiff was
excused from chores due to his health. R. at 39.
Plaintiff was diagnosed with prostate cancer while incarcerated.

R. at 39-40.

He

received radiation treatments and his cancer went into remission. R. at 40. His PSA was
elevated after arriving at the halfway house. R. at 41. He was prescribed Zoladex, which
brought his PSA back down. Id. Plaintiff thereafter was taken off Zoladex, and his PSA levels
rose again. Id. Zoladex was prescribed again and he was still taking it at the time of the hearing.
Id. Plaintiff testified that his physicians informed him that his cancer was no longer in remission
but they did not know where it was in his body. R. at 42. Plaintiff’s counsel clarified that the
medical records did not affirmatively indicate that the cancer had returned, only that he again
was receiving radiation therapy and his PSA levels were elevated. Id.
The ALJ asked plaintiff about how the cancer affected his daily living. R. at 43. Plaintiff
reported that his cancer treatments caused him fatigue and pain in his bones. R. at 44. He
further stated that he recently had been diagnosed with diabetes and now attributed much of his
past fatigue to that condition. R. at 43-44. The pain in his bones comes and goes depending on
the temperature. R. at 45. Plaintiff affirmed that he suffers from pain in his neck and lower back
for which he had been prescribed Vicodin and a heating pad. Id. His pain is exacerbated by
sitting or standing too long, the weather, or trying to lift weight. R. at 46. He is able to lift only
ten to fifteen pounds, sit for fifteen to twenty minutes, and stand for only ten minutes. R. at 46.
Plaintiff stated that he was being treated for depression by a therapist and a psychiatrist. R. at

10

47. He takes an anti-depressant daily as well as Risperdal12 to control his anger and anxiety but
asserted that this medication was not working. Id. Plaintiff acknowledged a history of alcohol
and cocaine abuse but testified that he has not used either since 2006. Id.
A typical day for plaintiff consists of a phone call to his mother and occasional
compulsive cleaning. R. at 48. Plaintiff really likes cleaning and got “into it,” but is often too
fatigued to do it because of his diabetes. Id. The ALJ questioned plaintiff about notes in the
record indicating that he moved furniture around to clean and plaintiff answered that it was
something he learned in the military but no longer did. R. at 49. Plaintiff’s wife prepares the
household meals but he is able to feed himself when she is not able to cook. Id. He is able to
wash his own dishes. Id. His wife does the grocery shopping but he accompanies her on
occasion depending on his pain and fatigue. R. at 50.
Plaintiff’s social activities consist of attending church two to three times per month but
typically not going to restaurants or visiting with family or friends. R. at 50. Plaintiff reported
that he got along with the people at church but was less tolerant than he used to be. R. at 51. He
is able to stand and sit in church. Id. Plaintiff watches television but does not read books or
magazines. R. at 52. He has a computer which he uses to play games, search the internet and
access email. Id.
Plaintiff’s counsel then conducted an examination of Plaintiff. Id. Plaintiff testified that
his pain medication makes him drowsy and that he takes insulin. R. at 52-53. He alleged that he
cannot walk for more than five minutes before he has to sit and rest. R. at 53. He can only sit
for fifteen to twenty minutes. R. at 53. When playing games at his computer he has to get up
12

“Risperdal” is used to treat the symptoms arising from psychotic disorders such as
schizophrenia, mania or bi-polar disorder. Mayo Clinic, Risperidone/Risperdal, available at
http://www.mayoclinic.org/drugs-supplements/risperidone-oral-route/description/DRG20067189 (last visited Jan. 3, 2014).
11

and lie down or sit in his recliner due to back pain. R. at 54. He is not able to bend over to pick
something off the ground but he can shower and care for his personal needs. Id. Although
plaintiff has some difficulties with his memory, he attributes the deterioration to his age. Id. He
reported difficulty in focusing while watching television and rarely finishing a show. R. at 55.
He also suffers from daily anxiety attacks, which he describes as bursts of anger seemingly
without provocation. Id. These attacks are accompanied by shaking and sweating. R. at 56.
Plaintiff has to urinate every hour to an hour and a half, which causes him difficulty when trying
to sleep. Id. In addition, he has cramps in his hands when typing or playing games on his
computer. R. at 57. Finally, counsel asked plaintiff whether he suffered from all of these
symptoms on a daily basis or if he ever had good days, to which plaintiff answered that he had
both good days and bad days. R. at 58. He elaborated that he suffers from anxiety and
depression two to three times a week, which stems from his cancer. Id.
The vocational expert, Ms. Kinley, summarized plaintiff’s work history as follows:
stacker position (light work, at the lower end of semi-skilled), truck driving (medium work,
semi-skilled), pump room supervisor (medium work, skilled with regard to the casting of
concrete and semi-skilled regarding personnel care), and press operator (medium work, at the
lower end of semi-skilled). R. at 61. The ALJ then posited an individual that: required a sit
stand option every thirty minutes, can occasionally climb ramps and stairs; can occasionally
balance, stoop, kneel, crouch, and crawl; cannot have concentrated exposure to extreme heat and
cold, wetness, or humidity; is able to perform simple, routine, repetitive tasks; requires lowstress work, defined as occasional simple decision making and occasional changes in the work
setting; cannot work in a fast-paced production environment; can have occasional interaction
with coworkers and supervisors,

no interaction with the public; and requires access to a

12

bathroom. R. at 61-62. Ms. Kinley concluded that such an individual would not be able to
perform plaintiff’s past work but would be able to perform the job of night patrol (light,
unskilled), with 100,000 positions existing in the national economy. R. at 62. The individual
also would be able to do work as an office helper, with 150,000 jobs in the national economy.
Id. Additionally, the individual could work as a hand packer or line worker (light, unskilled),
with 80,000 jobs available in the national economy. R. at 62-63.
The ALJ then asked if work would be available if the exertion requirement in the
aforementioned hypothetical was reduced to sedentary. R. at 63. Ms. Kinley replied that such an
individual would be able to work as: a charge account clerk, with 45,000 jobs nationally; a ticket
checker, with 50,000 jobs nationally; and a sub-assembler with 80,000 jobs nationally. Id. The
ALJ inquired as to whether there would be work for such an individual if he or she was off task
20% of the time and she responded in the negative. Id. As a follow-up, Ms. Kinley testified that
such an individual cannot remain employed if he or she were to miss three or more days of work
per month. R. at 64.
IV.

STANDARD OF REVIEW
This Court’s review is limited to determining whether the Commissioner’s decision is

“supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). The Court may not undertake a de novo review of the Commissioner’s decision or
re-weigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 11901191 (3d Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might accept as

13

adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal
quotation marks omitted). As long as the Commissioner’s decision is supported by substantial
evidence, it cannot be set aside even if this Court “would have decided the factual inquiry
differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). “Overall, the substantial
evidence standard is a deferential standard of review.” Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him [or her] from engaging in any
‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Secretary of
Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777
(3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be
unable to engage in substantial gainful activity “only if his [or her] physical or mental
impairment or impairments are of such severity that he [or she] is not only unable to do his [or
her] previous work but cannot, considering his [or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To support his or her ultimate findings, an administrative law judge must do more than
simply state factual conclusions. He or she must make specific findings of fact. Stewart v.
Sec’y of Health, Educ. & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The administrative law
judge must consider all medical evidence contained in the record and provide adequate
explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d
955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
The Social Security Administration (“SSA”), acting pursuant to its legislatively delegated

14

rule-making authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
unless the claimant shows that he is not working at a “substantial gainful
activity.”[20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
nondisability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits [the claimant’s] physical or mental ability to do basic work activities.” §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (footnotes omitted).
In an action in which review of an administrative determination is sought, the agency’s
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. In Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194 (1947), the
Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing with
a determination or judgment which an administrative agency alone is authorized
to make, must judge the propriety of such action solely by the grounds invoked by
the agency. If those grounds are inadequate or improper, the court is powerless to
affirm the administrative action by substituting what it considers to be a more
adequate or proper basis. To do so would propel the court into the domain which
Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196.

15

The United States Court of Appeals for the Third Circuit has recognized the applicability of
this rule in the Social Security disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n. 7
(3d Cir. 2001). Thus, the court’s review is limited to the four corners of the ALJ’s decision.
V.

DISCUSSION
a. The ALJ’s decision
The ALJ found that plaintiff met the insured status requirements of the Act through

March 31, 2011 and had not engaged in substantial gainful activity since his alleged onset date of
August 1, 2007. R. at 14. At the time of plaintiff’s alleged disability onset date, he was defined
as a “younger person” under the regulations. 20 C.F.R. § 404.1563 and 416.963; R. at 22. At
the time of the hearing, however, plaintiff’s age category had changed to “closely approaching
advanced age.”13 Id. Plaintiff has the following severe impairments: a history of prostate
carcinoma; degenerative disc disease; obesity; depressive disorder; obsessive compulsive
disorder versus personality disorder; and a history of alcohol and cocaine dependence. Id.
Plaintiff’s impairments did not singularly or in combination meet or medically equal one of the
listed impairments at 20 C.F.R. Part 404, Subpart P, App’x 1. R. at 16. The ALJ further found
that the record failed to establish that plaintiff suffered a recurrence of prostate cancer after the
initial hormone therapy. R. at 16. In analyzing the “paragraph B” criteria, the ALJ determined
that plaintiff’s mental impairments caused no more than moderate limitations in activities of
daily living, social functioning, or concentration, persistence, and pace. Id. The record also
failed to establish the presence of “paragraph C” criteria. R. at 17.
Plaintiff’s Residual Functional Capacity (“RFC”) was assessed as follows:
[C]laimant has the residual functional capacity to perform light work as defined in
13

The regulations classify an individual between the ages of fifty and fifty-four as a “person
closely approaching advanced age.” 20 C.F.R. § 404.1563 and 416.963.
16

20 CFR 404.1567(b) and 416.967(b) where he lifts and carries 20-pounds
occasionally and 10 pounds frequently; where he can stand or walk for six-hours
of an eight-hour workday; where he can sit for six-hours of an eight hour
workday; where he requires a sit/stand option every 30-minutes; where he can
never climb ladders, ropes, and scaffolds; where he can occasionally climb ramps
and stairs and he can occasionally balance, stoop, kneel, crouch, and crawl; where
he cannot have concentrated exposure to extreme heat and cold, wetness or
humidity; where he is able to perform simple, routine, repetitive tasks; where he
requires low-stress work (defined as occasional simple decision making and
occasional changes in the work setting; where he cannot perform work in a fastpaced production environment; where he can have occasional interaction with
coworkers and supervisors and no interaction with the public; and where he
requires access to a bathroom.
The ALJ found that plaintiff’s medically determinable impairments could reasonably be
expected to cause his alleged symptoms.

R. at 19.

Plaintiff’s statements concerning the

intensity, persistence, and limiting effects of those symptoms, however, were found not credible
to the extent they were inconsistent with the aforementioned RFC. The ALJ noted that no
medical sources had opined that plaintiff was disabled from regular and continuous work as a
result of his pain-related issues. Id. In formulating the RFC, the ALJ took into account obesity
and kidney disease along with all of plaintiff’s other alleged impairments. R. at 15. Further, the
ALJ included the functional limitations which plaintiff attributed to diabetes. Id.
The opinions of Dr. Van Tran and Dr. Ira Baumgartel were given weight by the ALJ in
reaching his decision. R. at 19. The portion of Dr. Baumgartel’s opinion which concluded that
plaintiff was limited to standing for one hour or less and sitting for no more than two hours was
discounted. R. at 20. The ALJ found these limitations to be inconsistent with Dr. Baumgartel’s
own objective examination and the other medical evidence of record. Id.
The ALJ determined that plaintiff was unable to perform his past relevant work. R. at 22.
Transferability of job skills was found to be immaterial because the medical-vocational rules
supported a finding that plaintiff is not disabled regardless of whether he has transferable work

17

skills.14 Id. Plaintiff has at least a high school education and is able to communicate in English.
Id. The ALJ concluded that in light of plaintiff’s age, education, work experience, and RFC,
there were jobs existing in significant numbers in the national economy that he could perform.
R. at 23. Accordingly, the ALJ concluded that plaintiff had not been disabled under the Act from
August 1, 2007, through the date of his decision. Id.
On appeal, plaintiff argues that the ALJ erred in: (1) granting little weight to a portion of
a consultative examiner’s opinion, resulting in a RFC that was not supported by substantial
evidence; (2) assessing plaintiff’s credibility; and (3) submitting hypotheticals to the vocational
expert that were not based on substantial evidence. (Docket No. 13 at 13). Defendant counters
that the ALJ appropriately weighed the consultative examiner’s opinion and that his decision was
supported by substantial evidence. (Docket No. 15 at 11).
b. Dr. Baumgartel’s opinion and plaintiff’s RFC
Plaintiff specifically argues that the ALJ erred in giving too little weight to the limitations
assessed by Dr. Baumgartel and as a result the ALJ’s RFC did not contain all of plaintiff’s
credibly established limitations. (Docket No. 13 at 8). Further, the ALJ purportedly erred by not
contacting Dr. Baumgartel for clarification of his opinion. (Docket No. 13 at 9). Defendant
maintains that the ALJ’s RFC was supported by substantial evidence and the ALJ was not
required to contact Dr. Baumgartel for clarification. (Docket No. 15 at 9, 11-12).
Plaintiff’s contention that the ALJ was required to place more reliance on Dr.
Baumgartel’s assessment of his limitations lacks merit. In reaching a disability determination,
the ALJ “must consider the medical findings that support a treating physician’s opinion that the
claimant is disabled.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). It is within the ALJ’s

14

Citing: SSR 81-41 and 20 C.F.R. Part 404, Subpart P, App’x 2.
18

discretion to discredit a medical opinion which is inconsistent with or unsupported by the
medical documentation. Rimel v. Astrue, 521 F. App’x 57, 59 (3d Cir. 2013). Among the factors
to be analyzed in determining the weight to be given to a medical opinion are the supportability
of the opinion and its consistency with the record as a whole. 20 C.F.R. § 404.1527(c)(2); 20
C.F.R. § 416.927(c)(2).
The ALJ noted that the limitations assessed by Dr. Baumgartel were not consistent with
his own the objective examination of Plaintiff. R. at 20. The only information provided by Dr.
Baumgartel to support his medical findings was the phrase “low back pain.”

R. at 491.

Although Dr. Baumgartel opined that plaintiff was limited to standing for one hour or less and
sitting no longer than two hours, he observed that plaintiff had a normal range of motion in all
joints and his upper and lower extremities, as well as a normal gait. R. at 20, 489. Plaintiff also
was able to walk on his toes and heels without difficulty. Id. Although his report noted that
plaintiff suffered back pain when squatting, nothing else therein suggested that plaintiff suffered
from limitations in sitting and standing. R. at 20, 487-489.
In addition to being inconsistent with his own documentation, the limitations assessed by
Dr. Baumgartel also were inconsistent with the record as a whole. When determining the weight
to give to medical opinions, an ALJ is entitled to weigh all of the evidence. Brown v. Astrue,
649 F.3d 193, 196 (3d Cir. 2011). In order for a medical opinion to be accorded substantial
weight, it must be “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and . . . not inconsistent with the other substantial evidence in [the] case record.” 20
C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2). Dr. Baumgartel’s assessment is inconsistent
with the findings of other examining physicians as well as plaintiff’s own statements. Contrary
to his testimony that he could walk for no more than five minutes without taking a rest, plaintiff

19

was able to walk unaccompanied for a half of a mile to attend his evaluation with Dr. Newman.
R. at 53, 464.

Further, plaintiff’s complaints regarding the severity of his back pain are

inconsistent with his reports that physical therapy and medication were effective in managing his
pain. R. at 19, 1166-1184, 1286. Although plaintiff elected to stop attending physical therapy,
notes from those sessions consistently indicated that plaintiff tolerated this treatment well. R. at
1163, 1166-1184.

Imaging of plaintiff’s spine and vertebrae revealed no more than mild

degenerative changes and a scan in March of 2009 indicated that his vertebral body heights and
disc spaces were normal. R. at 19, 445, 1235-1236. On a Braden Scale analysis completed at
Butler VA on March 16, 2009, plaintiff was assessed with a score of 4/4 in the category of
“mobility,” meaning that he had “no limitation” in the ability “to make major and frequent
change in position without assistance.”15 R. at 19, 595. Finally, despite plaintiff’s complaints of
physical pain, he stated during a March of 2010 psychiatric follow-up that he was able to move
furniture around in his home on a weekly basis in order to clean, including under the bed. R.at
21, 48-49, 1169.
“Inconsistencies in a claimant’s testimony or daily activities permit an ALJ to conclude
that some or all of the claimant’s testimony about her limitations or symptoms is less than fully
credible.” Garret v. Comm’r of Soc. Sec., 274 F. App’x. 159, 164 (3d Cir. 2008). The record
contains numerous inconsistences with Dr. Baumgartel’s account of plaintiff’s limitations. Thus,
the ALJ’s decision to give less weight to those limitations was supported by substantial evidence.
It follows that the ALJ did not err in determining plaintiff’s RFC assessment.

In

formulating an RFC, the ALJ need only include the limitations that have been credibly
established. Id. at 163. For the reasons discussed above, the ALJ’s decision to assign less
15

Prevention Plus: the Home of the Braden Scale, Braden Scale for Predicting Sore Risk,
http://www.bradenscale.com/images/bradenscale.pdf (last visited December 16, 2013).
20

weight to a portion of Dr. Baumgartel’s opinion was supported by substantial evidence.
Accordingly, the ALJ did not err in omitting that portion of the limitations from plaintiff’s RFC
assessment.
Similarly, the ALJ did not err in failing to seek clarification from Dr. Baumgartel
regarding his report. The regulations provide that an ALJ must re-contact a medical source
“when the report from your medical source contains a conflict or ambiguity that must be
resolved, the report does not contain all the necessary information, or does not appear to be based
on medically acceptable clinical and laboratory diagnostic techniques.”

20 C.F.R. §

416.912(e)(1) (emphasis added).16 The critical inquiry in determining whether the ALJ had an
obligation to seek clarification is whether the record as a whole contained enough evidence for
the ALJ to reach an informed determination. Toland v. Colvin, 2013 WL 6175817 (W.D. Pa.
Nov. 25, 2013). See also Thurman v. Barnhart, 2007 WL 2728656 (E.D. Pa. Sept. 18 2007)
(noting that although the Third Circuit has not expressly addressed the ALJ’s duty to re-contact,
most cases in this jurisdiction have applied the aforementioned inquiry). In other words,
when the treating physicians’ conclusions are inconsistent with the objective
medical evidence in the record, or the limitations on a claimants’ ability reported
by the treating physicians are not supported by objective medical evidence, the
ALJ is permitted to give these conclusions little or no weight. In such a case, an
ALJ is not obligated to recontact the treating physician and request an explanation
of the inconsistency between the physician’s treatment notes and his assessment.
Ellow v. Astrue, 2013 WL 159919 (E.D. Pa. Jan. 15, 2013) (internal citations omitted).
The record was sufficiently developed for the ALJ to make an informed disability
determination, which he did in a thorough and well-reasoned decision. The ALJ’s finding that
the limitations assessed by Dr. Baumgartel were inconsistent with the evidence did not obligate
16

The current regulations have eliminated this provision but it continues to apply in cases
that were adjudicated before March 26, 2012. See Gray v. Astrue, 2012 WL 1521259, * n. 1
(E.D.Pa. May 1, 2012).
21

him to re-contact the doctor for clarification.
c. The ALJ’s credibility finding
Plaintiff’s contention that the ALJ applied an inappropriate legal standard in assessing
plaintiff’s credibility also is misplaced. Determinations of credibility are within the province of
the ALJ and cannot be disturbed on appeal if they are supported by substantial evidence. Van
Horn v. Schweiker, 717 F.2d 871, 871, 873 (3d Cir. 1983). “When making credibility findings,
the ALJ must indicate which evidence he rejects and which he relies upon as the basis for his
finding.” Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 146 (3d Cir. 2007). The ALJ may
conclude that a claimant is less than fully credible where there are inconsistencies between the
claimant’s testimony and daily activities that support such an assessment. Id. at 146; accord
Boyce v. Barnhart, 66 F. App’x 297, 299-300 (3d Cir. 2003) (ALJ could find claimant less than
fully credible due to inconsistencies in her accounts of pain and failure to take her prescribed
medication).
Contrary to plaintiff’s contention, plaintiff’s testimony and complaints of pain were not
consistent with the record as a whole and the ALJ provided a complete discussion of these
inconsistencies. Despite plaintiff’s assertion that he suffers from severe back and neck pain,
imaging scans evidenced no more than mild degenerative changes. R. at 19, 445, 523. Further,
plaintiff consistently stated that physical therapy was making his pain more manageable and
notes from those sessions indicated he tolerated the treatment well. R. at 19, 1166-1185.
Additionally, on November 16, 2010, plaintiff told a registered nurse at Butler VA that he was
satisfied with his pain management. R. at 19, 1286. Plaintiff’s testimony that he could not walk
for more than five minutes without a break also is inconsistent with his statement that he moves
furniture to clean his home as well as with Dr. Newman’s observation that he walked a half mile

22

to attend his evaluation. R.at 21, 48-49, 53, 464 1169. Given these inconsistencies, the ALJ’s
finding that plaintiff was less than fully credible was supported by substantial evidence. See
Garret, 274 F.App’x. at 164.
d. The vocational expert’s testimony
Plaintiff’s argument that the ALJ erred in relying on the testimony of the vocational
expert because the hypotheticals posited by the ALJ did not include all of his limitations is
unavailing. (Docket Nos. 13 at 13). Hypotheticals to a vocational expert need not include
limitations that are not credibly established. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005). For the reasons discussed above, the ALJ’s decision to grant less weight to a portion of
Dr. Baumgartel’s opinion was supported by substantial evidence. The limitations assessed
therein lacked support and were inconsistent with the record. Accordingly, the ALJ’s decision to
omit those limitations from the hypothetical was supported by substantial evidence.
VI.

CONCLUSION
For the foregoing reasons, the ALJ’s decision that plaintiff was not disabled was based on

substantial evidence. Accordingly, plaintiff’s Motion for Summary Judgment will be denied,
defendant’s Motion for Summary Judgment will be granted, and the decision of the ALJ will be
affirmed. Appropriate orders will follow.
Date: February 25, 2014
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:

Jaya Shurtliff, Esquire
Paul Kovac, AUSA
(Via CM/ECF Electronic Mail)

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