ECKENRODE v. ASTRUE

Filing 15

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 3/3/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BONNIE ECKENRODE,
Plaintiff,
v.

CAROLYN W. COLVIN],
Acting Commission.er of Social Security,
Defendant.

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Civil Action No. 2:13-cv-231
Judge Mark R. Hornak

MEMORANDUM OPINION

Mark R. Hornak, United States District Judge
Plaintiff Bonnie Eckenrode ("Ms. Eckenrode") brought this action pursuant to 42 U.S.C. §§
405(g) and 13 83(c), for judicial review of the final determination of the Commissioner of Social
Security ("Commissioner"), who denied her applications for supplemental security income ("SSI") and
disability insurance benefits ("DIB") under Titles II and XVI of the Social Security Act ("Act"), 42
U.S.C. §§ 401-403; 1381-1383(t), respectively.

I.

BACKGROUND AND FACTS
Ms. Eckenrode was born on October 18, 1960. ECF No. 6-2 at 33. She has a high school

education. Id. at 34. Ms. Eckenrode was last consistently employed in 2006 as a greeter at Wal-Mart.
Id. Prior to that, she held jobs as a cashier at a farmer's market and at a nursing home doing laundry.

I 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/commissoners.html (visited on January 22,2014). Consequently, Acting Commissioner Colvin
is now the official-capacity defendant in this action. Hafer v. Mela, 502 U.S. 21,25 (1991); Fed. R. Civ. P. 25(d).

ld. at 34-35. Most recently, she worked for approximately a month as a laborer in a recycling plant in

November 2008 until her position was eliminated. !d. at 36.
Ms. Eckenrode alleges disability as of January 21, 2010 due to various physical and mental
impairments, including anxiety, depression, asthma, and other respiratory issues. ld. at 35-38; ECF
No. 6-6 at 33. The record reflects that she has not engaged in substantial gainful work activity since
alleging disability in January 2010. Ms. Eckenrode initially filed an application for SSI and DIB on
June 18,2009, in which she claimed total disability since May 1, 2006. 2 ECF No. 6-2 at 18. The State
Agency denied her claims on December 15,2009. !d. An administrative hearing was held on April 5,
2011 before Administrative Law Judge Brian Wood ("ALJ"). !d. Ms. Eckenrode was represented by
counsel and testified at the hearing. ld. Karen Krull, an impartial vocational expert ("VE"), also
testified at the hearing. ld.
On May 19, 2011, the ALJ rendered a decision unfavorable to Ms. Eckenrode in which the ALJ
found that she was not under a disability within the meaning ofthe Act from May 1, 2006 through the
date of the decision. !d. at 27. The ALJ's decision became the final decision of the Commissioner on
January 25,2013, when the Appeals Council denied Plaintiffs request to review the decision of the
ALl ld. at 2-4.
On February 12, 2013, Plaintiff filed her Complaint in this Court, seeking j udicial review ofthe
decision ofthe ALl ECF No.3. The parties have filed Motions for Summary Judgment, ECF Nos. 10
and 12, and respective Briefs in Support, ECF Nos. 11 and 13. Ms. Eckenrode has filed a response to
the Commissioner's Motion for Summary Judgment. ECF No. 14. She contends that the ALJ erred in

2 Ms. Eckenrode originally alleged disability as of May 1,2006. ECF No. 6-2 at 18. At the hearing, her attorney amended
the onset date to December 1,2009. [d. at 52. Ms. Eckenrode then filed a waiver changing her onset date to January 21,

2

numerous respects - by failing to find that her condition met or equaled one ofthe Listed Impairments
found at 20 C.F.R. § 404, subpt. P, app. 1, by giving little weight to the medical opinions of treating
providers and a consultative examiner, by erroneously determining her Residual Functional Capacity
("RFC"), by disregarding the testimony ofthe VE and relying on an incomplete hypothetical question,
and in failing to find that Ms. Eckenrode was disabled pursuant to the Medical-Vocational Guidelines
found at 20 C.F.R. § 404, subpt. P, app. 2. The Commissioner contends that the decision of the ALJ
should be affirmed, as it is supported by substantial evidence.

The Court agrees with the

Commissioner and will therefore grant the Motion for Summary Judgment filed by the Commissioner
and deny the Motion for Summary Judgment filed by Plaintiff.

II.

STANDARD OF REVIEW
The Act limits judicial review of disability claims to the Commissioner's final decision. 42

U.S.c. §§ 405(g), 1383(c)(3). Ifthe Commissioner's finding is supported by substantial evidence, it is
conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F .3d
546, 552 (3d Cir. 2005). The United States Supreme Court has defined "substantial evidence" as
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389 (1971). It consists of more than a scintilla ofevidence, but less
than a preponderance. Thomas v. Comm 'r ofSoc. Sec., 625 F 3d 798 (3d Cir. 2010).
In situations where a claimant files concurrent applications for SSI and DIB, courts have
consistently addressed the issue of a claimant's disability in terms of meeting a single disability
standard under the Act. See Burns v. Barnhart, 312 F .3d 113, 119 n.l (3d Cir. 2002) ("This test

2010 on April 21, 2011. ECF No. 6-6 at 33.

3

[whether a person is disabled for purposes of qualifying for SSI] is the same as that for determining
whether a person is disabled for purposes of receiving social security disability benefits [DIB].
Compare 20 C.F.R. § 416.920 with § 404.1520."); Morales v. Ap/id, 225 FJd 310, 315-16 (3d Cir.
2000) (stating claimants' burden of proving disability is the same for both DIB and SSI).
When resolving the issue of whether an adult claimant is or is not disabled, the Commissioner
utilizes a five-step sequential evaluation. 20 C.F .R. §§ 404.1520, 416.920. This process requires the
Commissioner to consider, in sequence, whether a claimant (l) is working, (2) has a severe
impairment, (3) has an impairment that meets or equals the requirements of a Listed Impairment, (4)
can return to his or her past relevant work, and (5) ifnot, whether he or she can perform other work.
See 42 U.S.C. § 404.1520; Newell v. Comm'r a/Soc. Sec., 347 F.3d 541, 545-46 (3d Cir. 2003)
(quoting Burnett v. Comm 'r a/Soc. Sec., 220 F.3d 112, 118-19 (3d Cir. 2000».
To qualify for disability benefits under the Act, a claimant must demonstrate that there is some
"medically determinable basis for an impairment that prevents him or her from engaging in any
substantial gainful activity for a statutory twelve-month period." Fargnoli v. Massanari, 247 F.3d 34,
38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.c. § 423 (d)(l) (1982). This may be done in
two ways:
(1) by introducing medical evidence that the claimant is disabled per se because he or she
suffers from one or more ofa number of serious impairments delineated in 20 C.F.R. § 404, subpt. P,
app.1. See Heckler v. Campbell, 461 U.S. 458 (1983); Newell, 347 F.3d at 545-46; Jones v. Barnhart,
364 F.3d 501, 503 (3d Cir. 2004); or,

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(2) in the event that claimant suffers from a less severe impairment, by demonstrating that he
or she is nevertheless unable to engage in "any other kind of substantial gainful work which exists in
the national economy ...." Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first demonstrate the
existence of a medically determinable disability that precludes her from returning to her former job.

Newell, 347 F.3d at 545-46; Jones, 364 FJd at 503. Once the claimant shows he is unable to resume
her previous employment, the burden shifts to the Commissioner to prove that, given claimant's
mental or physical limitations, age, education and work experience, she is able to perform substantial
gainful activity injobs available in the national economy. Rutherford, 399 F.3d at 551; Newell, 347
F.3d at 546; Jones, 364 FJd at 503; Burns, 312 F.3d 113, 119 (3d Cir. 2002).
Where a claimant has multiple impairments which may not individually reach the level of
severity necessary to qualify anyone such impairment for Listed Impairment status, the Commissioner
nevertheless must consider all ofthe impairments in combination to determine whether, collectively,
they meet or equal the severity of a Listed Impairment. Diaz v. Comm'r ofSoc. Sec., 577 F.3d 500,
502 (3d Cir. 2009); 42 U .S.C. § 423(d)(2)(C) ("in determining an individual's eligibility for benefits,
the Secretary shall consider the combined effect ofall ofthe individual's impairments without regard
to whether any such impairment, if considered separately, would be of such severity").
In this case, the ALJ determined that Plaintiff was not disabled within the meaning ofthe Act at
the fifth step ofthe sequential evaluation process. ECF No. 6-2 at 26. The ALJ concluded that while
Ms. Eckenrode did have a number of severe impairments

chronic obstructive pulmonary disease,

asthma, obstructive sleep apnea, degenerative joint disease ofthe left ankle, obesity, Type II diabetes
mellitus, major depressive disorder, generalized anxiety disorder, and panic disorder - she did not have

5

an impairment or combination of impairments that "met or medically equaled" a Listed Impairment
3

during the relevant period. Id. at 20-22. The ALJ then found that Ms. Eckenrode retained the RFC to
perform light work as defined at 20 C.F.R. §§ 404. 1567(b) and 416.967(b), with a number of specific
limitations:
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
13)

Ms. Eckenrode could lift and carry 20 pounds occasionally and 10 pounds frequently;
She could stand or walk for 6 hours of an 8-hour workday;
She could sit for 6 hours of an 8-hour workday;
She required a sit/stand option every 30 minutes;
She could occasionally push or pull with her bilateral upper extremities and bilateral
lower extremities;
She could frequently balance;
She could occasionally climb, stoop, and crouch;
She could never crawl or kneel;
She must avoid concentrated exposure to extreme heat and cold, as well as humidity,
fumes, odors, dusts, gases, and poor ventilation;
She was able to perform simple routine repetitive tasks;
She required low stress work, defined as occasional simple decision making with
occasional changes in the work setting;
She could have occasional interaction with co-workers and supervisors; and
She could have no interaction with the public.

Idat 22.
In making this determination, the ALJ first considered Ms. Eckenrode's subjective complaints
ofphysical symptoms and found that while her medically determinable impairments could reasonably
be expected to cause the symptoms she claimed she suffered, her complaints exceeded the severity of
impairment shown by the objective medical evidence and were not credible to that extent. Id. at 24.
The ALJ noted that the medical records showed Ms. Eckenrode was diagnosed with poorly controlled
asthma and sleep apnea in July 2009. Id. However, he pointed out that chest x-rays of Ms. Eckenrode

3 The

AU explicitly considered Listings 1.00 (musculoskeletal system), 3.00 (respiratory system), 9.00 (endocrine system),
12.04 (affective disorders), and 12.06 (anxiety related disorders). ECF No. 6-2 at 21. He found no evidence that Ms.
Eckenrode's obesity increased the severity of any ofher alleged impairments to the degree that, individually or combined,
they met or equaled a Listed Impairment.

6

in May 2009 were normal, follow-up x-rays in August 2009 showed no active disease and normal lung
capacity, and pulmonary function tests in October 2009 showed no significant obstruction. ld. The
ALJ also noted that by April 2010, Ms. Eckenrode's asthma was under fair control, and she was
walking approximately 1-4 miles per day. ld. The ALJ found nothing in the record to explain Ms.
Eckenrode's testimony at the hearing that about one year later she could only walk approximately 50
feet at a time. ld. Ultimately, taking into account the combined effect of Ms. Eckenrode's mild
degenerative joint disease in her left ankle, her obesity, various respiratory ailments, and sleep apnea,
the ALJ found that she could perform work at the light exertionallevel with the further "postural and
environmental limitations" he included in her RFC. ld.
With regard to Ms. Eckenrode's alleged mental impairments, the ALJ acknowledged that Ms.
Eckenrode's treating psychologist, Dr. Randon Simmons ("Dr. Simmons") diagnosed her with major
depressive disorder and generalized anxiety disorder in March 2009 and gave her a global assessment
offunctioning ("OAF") score of 55, indicating moderate symptoms. ld. He also noted that in January
2010, Dr. Simmons diagnosed Ms. Eckenrode again with major depressive disorder and also with
panic disorder, and gave her a OAF score of 40, indicating serious symptoms. However, the ALJ
attributed this score to what Dr. Simmons described as the "situational stressor" of Ms. Eckenrode's
difficulties with her sister, a subject to which she testified at length at the hearing. The ALJ also
emphasized that by July 2010, Ms. Eckenrode reported that her mood was a "5/1 0," that was she was
experiencing much less stress, and was sleeping "great," that she had never been hospitalized for
mental issues, and that she performed "extensive" daily activities such as taking care of her
grandchildren, doing household chores, reading, watching television, and playing video games. ld. at

7

25. On that basis, the ALJ concluded that Ms. Eckenrode's mental impainnents would not prevent her
from performing low stress, unskilled work with minimal interpersonal interaction. Id.
In support of his decision, the ALJ accorded "great weight" to the opinions ofthe State Agency
medical and psychological consultants, as he found them to be consistent with the other evidence in the
record. Id. He also gave substantial weight to the opinion of Dr. Dennis Demby ("Dr. Demby"), the
consultative examiner who inspected Ms. Eckenrode, "with the exception of the addition of
environmental limitations and the imposition ofa sit or stand option." !d. The ALJ gave minor weight
to the opinions of Roger Percy ("Mr. Percy"), a nurse practitioner Ms. Eckenrode saw on a regular
basis, and Dr. Simmons, to the extent that it suggested Ms. Eckrenrode's impainnents met paragraph C
of Listing 12.04. Id. The ALl concluded that those opinions were not supported by the evidence of
record. Id.
Based upon the testimony of the VE, the ALJ next concluded that Ms. Eckenrode could not
perfonn any of her past work. Id. However, based on further VE testimony that jobs existed in
significant numbers in the national economy that an individual with Ms. Eckenrode's age, education,
work experience, and RFC could perfonn - including sorter, stock clerk, and mail clerk - the ALl
found that Ms. Eckenrode was capable of making a successful adjustment to other work during the
relevant period and therefore was not disabled within the meaning of the Act. !d. at 26-27.

III.

DISCUSSION
As set forth in the Act and applicable case law, this Court may not undertake a de novo review

of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. etr. v. Heckler,
806 F.2d 1185, 1190 (3d Cir. 1986), cert. denied., 482 U.S. 905 (1987). The Court must simply
review the findings and conclusions of the ALJ to detennine whether they are supported by substantial

8

evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm'r ofSoc. Sec. Admin., 181 F.3d 429, 431 (3d Cir.
1999).
Ms. Eckenrode advances five principal arguments for granting her Motion for Summary
Judgment. First, she argues that the ALJ erred in giving little weight to the opinions of Mr. Percy and
Dr. Simmons. Second, she alleges that the ALJ erred in determining that her condition did not meet or
equal in severity Listings 12.04 and/or 12.06. Third, Ms. Eckenrode contends that the ALJ erred in
determining her RFC by misconstruing the opinion of Dr. Demby. Fourth, she alleges that the ALJ
improperly disregarded the testimony ofthe VE and posed an incomplete hypothetical question to the
VE. Finally, she argues that the ALJ erred in failing to find that she was disabled pursuant to the
Medical-Vocational Guidelines. The Court will address each issue in tum.

A.

The ALJ's Weighing of the Relevant Medical Opinions

A "cardinal principle" of disability determinations is that the ALJ must ordinarily give the
medical opinion of a treating physician substantial weight. Morales v. Apfel, 225 F 3d 310, 317 (3d
Cir. 2000). Under the "treating physician doctrine," "a court considering a disability benefits claim
must gi ve greater weight to the findings ofa treating physician than to the findings ofa physician who
has examined the claimant once or not at all." Mason v. Shalala, 994 F .2d 1058, 1067 (3d Cir. 1993).
The ALJ must give a treating physician's opinion controlling weight if 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 v. Massanari, 247 F.3d 34, 42
(3d Cir. 2001). An ALJ may only reject a treating physician's assessment on the basis ofcontradictory
medical evidence, not on speculation, credibility judgments, or lay opinion. Id.

9

As Ms. Eckenrode's treating psychologist, Dr. Simmons is an "acceptable medical source"
whose opinion is normally entitled to substantial or even controlling weight.

20 C.F.R. §

416.913(a)(2). In his decision, the AL] failed to fully credit Dr. Simmons' Psychiatric Review
Technique Form ("PRTF"), which indicated that Ms. Eckenrode's psychological impairments met or
medically equaled Listing 12.04. Instead, the AL] concurred with the State Agency psychological
examiner's finding that Ms. Eckenrode's mental impairments did not meet the requirements ofListing
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12.04, paragraph C or Listing 12.06, paragraph C 5, while Dr. Simmons' PRTF reflected that Ms.
Eckenrode met Listing 12.04, paragraph C. When the opinion ofa treating physician conflicts with the
opinion ofa non-treating, non-examining physician, "the AL] may choose whom to credit but 'cannot
reject evidence for no reason or for the wrong reason. '" Plummer v. Apfel, 186 F .3d 422,429 (3d Cir.
1999).
The Court concludes that the AL] was justified in deciding that the medical evidence ofrecord,
including evidence from Dr. Simmons' own treatment of Ms. Eckenrode, did not support his opinion
in the PRTF. This factual situation strikes the Court as similar to that faced by its sister court in the
Eastern District of Pennsylvania in Colgan v. Astrue, 2009 WL 8581179 (E.D. Pa. Aug. 11,2009). In

4 Listing

12.04, paragraph C requires a "medically documented history ofa chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of I or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such arrangement.
20 C.F.R. § 404, subpt. P, app. 1.

5 Listing

12.06, paragraph C requires a "complete inability to function independently outside the area ofone's home." 20

10

that case, the ALJ gave little weight to a PRTF completed by the claimant's treating therapist,
assessing "severe mental impairments" that he alleged equaled a Listed Impairment. Colgan, 2009
WL 8581179, at *3. TheALJ noted that the PRTF and the claimant's OAF scoreof45 contrasted with
many of the therapist's own progress notes and were not supported by the rest of the medical record.
Id. at *3-4. The court upheld the ALl's determination, observing that while the progress notes did

contain comments such as "patient having difficulty with negative thoughts" and "anxiety level
increased," they were brief and did not list severe or complicated symptoms. Id. at *4. Additionally,
the Court noted that the claimant did not see his therapist frequently enough - about 5 times a yearfor an individual suffering from serious mental health limitations. Id. On that basis, the court held that
the ALJ correctly decided that the treating therapist's opinion in the PRTF was not entitled to
substantial weight. !d.
In this case, substantial medical evidence in the record fails to support Dr. Simmons' PRTF.
His treatment notes are comparable to those from Colgan, containing descriptions such as "keyed up,"
"tired," and "worked up about the bus schedule," along with references to past suicidal thoughts, but
the most recent notes indicate much-improved mood and sleep. ECF No. 6-10 at 46-54. Dr.
Simmons' assessments contain phrases such as "continued situational stressors," "racing thoughts,"
and "sleep disturbance." Id. They do not indicate any severe or debilitating symptoms supporting a
OAF score of 40 or the requirements of paragraph C. Ms. Eckenrode saw Dr. Simmons 7 times in the
approximately one-year span from January 2010 to January 2011 - again comparable to the claimant in

C.F.R. § 404, subpt. P, app. 1. In the PRTF, Dr. Simmons wrote in "moderate" over "inability to function independently
outside the area of one's home." Therefore, he did not opine that Ms. Eckenrode's mental limitations met Listing 12.06.

11

Colgan. Id. Most strikingly, as the ALl noted, Ms. Eckenrode has never been hospitalized for mental
health reasons, providing no basis for a finding of past or future episodes of decompensation.
The Court concludes that this factual scenario is similar to that in Colgan, and because the
medical evidence of record does not support Dr. Simmons' opinion that Ms. Eckenrode's
psychological limitations met a Listed Impairment, the ALl gave his opinion as to that particular
question minimal weight for appropriate reasons. Because the ALl limited his assessment of Dr.
Simmons' opinion "to the extent that it suggests the claimant meets the 'C' criteria" and cited to and
discussed the rest of Dr. Simmons' medical records and findings in his decision, the Court concludes
that the ALl gave proper weight to the remainder of Dr. Simmons' opinions.
As for Mr. Percy, who completed two Employability Assessment Forms indicating that Ms.
Eckenrode was temporarily disabled for a variety ofreasons, the opinion of a nurse practitioner is not
an "acceptable medical source" entitled to great or controlling weight under the treating physician
doctrine, as Plaintiff suggests. Hartranft v. Apfel, 181 F.3d 358,361 (3d Cir. 1999) (citing 20 C.F.R. §
416.913). While the ALl may consider such an opinion along with all of the other evidence presented
by the claimant, disability eligibility cannot solely rest upon it. Jd (citing 20 C.F.R. § 416.913(e)(3)).
Therefore, the Court concludes that the ALl did not err in giving Mr. Percy's opinion little weight.

B. The ALJ's Determination that Plaintiff's Impairments did not Meet or Equal a
Listed Impairment
At step three, the claimant bears the burden of presenting medical evidence to show that her
impairment matches a listing or is equal in severity to a listed impairment. Burnett v. Comm 'r ofSoc.

Sec. Admin., 220 F .3d 112, 120 n.2 (3d Cir. 2000) (citing Williams v. Sullivan, 970 F .2d 1178, 1186
(3d Cir. 1992)). The Supreme Court has defined this burden:

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For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some ofthose criteria, no
matter how severely, does not quality. For a claimant to quality for benefits by showing
that his unlisted impairment, or combination of impairments, is "equivalent" to a listed
impairment, he must present medical findings equal in severity in all the criteria for the
one most similar listed impairment. A claimant cannot quality for benefits under the
"equivalence" step by showing that the overall functional impact of his unlisted
impairment or combination of impairments is as severe as that of a listed impairment.

Sullivan v. Zebley, 493 U.S. 521, 530-32 (1990).
The Court concludes that substantial evidence supported the ALl's determination that Ms. Eckenrode's
impairments did not, alone or combined, match or equal Listings 12.04 or 12.06.
In his decision, the ALl explicitly considered whether Ms. Eckenrode's mental impairments
met Listings 12.04 (affective disorders) and 12.06 (anxiety related deisorders). Both Listings require a
level of severity that is satisfied when a set ofrequirements in paragraphs A and B are present, or when
the requirements in paragraph C are met. The requirements for paragraph B in Listings 12.04 and
12.06 are identical and read as follows:

B. Resulting in at least two of the following:
1.
2.
3.
4.

Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration

20 C.F.R. § 404, subpt. P, app. 1. The ALl devoted a full paragraph to each factor, finding in
accordance with the State Agency psychological examiner's report and Dr. Simmons' PRTF that Ms.
Eckenrode was only mildly or moderately restricted in each category. ECF No. 6-2 at 21-22. He also
found that because the record was absent of any psychiatric hospitalizations, there was no evidence of
past or possible future episodes of decompensation. Id. at 22.

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For reasons the Court has already addressed, the ALJ appropriately conferred little weight to
Dr. Simmons' opinion in determining that Ms. Eckenrode's limitations did not meet paragraph C.
Because the Listings are strictly construed against claimants, Lee v. Astrue, 2007 WL 1101281, at *4
(E.D. Pa. Apr. 12, 2007), and Ms. Eckenrode failed to present medical findings meeting all of the
specified criteria of the Listings in question, the ALl's decision that her impairments did not meet or
equal a Listed Impairment was supported by substantial evidence.
C.

The ALJ's Residual Functional Capacity Determination

Ms. Eckenrode next argues that the ALJ erred in determining for RFC purposes that she could
stand for 6 hours in an 8-hour work day where Dr. Demby's opinion, which the ALJ gave great weight,
reported that she could only stand or walk for 2-4 hours in an 8-hour workday. In his decision, the ALJ
did afford great weight to Dr. Demby's opinion, "with the exception of the addition of environmental
limitations and the imposition ofa sit or stand option." ECF No. 6-2 at 25. One ofthe environmental
limitations the ALJ included in his RFC determination for Ms. Eckenrode was that she could only
stand for 6 hours out ofan 8-hour work day - a limitation found in the report of Dr. Juan Mari-Mayans
("Dr. Mari-Mayans"), the State Agency medical evaluator. ECF No. 6-10 at 3.
The resolution of this issue depends upon whether there was substantial evidence to support the
ALl's finding that Dr. Demby's assessment of Ms. Eckenrode's ability to stand for 2-4 hours in an 8­
hour workday was inconsistent with the body of his report and the record evidence considered in its
entirety. Harrold v. Astrue, 323 Fed. Appx. 114, 117 (3d Cir. 2009). Dr. Demby's consultative
examination report stated that Ms. Eckenrode had chest pain, shortness of breath, wheezing, coughing,
and dizziness. ECF No. 6-9 at 23. Dr. Mari-Mayans diagnosed Ms. Eckenrode with emphysema and
morbid obesity and specifically considered Dr. Demby's opinion, stating that his own RFC assessment

14

partially reflected Dr. Demby's conclusions. ECF No. 6-10 at 8. However, according to Dr. MariMayans, Dr. Demby "relied heavily on the subjective report of symptoms and limitations provided by
the claimant," which he concluded were not supported by the medical record. Id. It is plain to the
Court that the ALl gave due consideration to the divergent views of Drs. Demby and Mari-Mayans, as
he gave great weight to most of both oftheir opinions. The ALl also included a sit/stand option every
30 minutes in Ms. Eckenrode's RFC. ECF No. 6-2 at 22. Therefore, the ALl did not err in adopting
Dr. Mari-Mayans' conclusion as to Ms. Eckenrode's ability to stand for 6 hours during an 8-hour
workday, Harrold, 323 Fed. Appx. at 117, and the Court concludes that the ALl's RFC determination
was supported by substantial evidence.6

D.

The ALJ's Hypothetical Questions

Ms. Eckenrode next argues that the ALl failed to properly rely on the VE's response that a
hypothetical person similar to Ms. Eckenrode who missed two or more days of work a month or was
off-task 20 percent of the day would not be suitable for any jobs in the national economy. ALls often
pose a number of hypothetical questions to the VE, but the VE's testimony "may only be considered
for purposes of determining disability if the question accurately portrays the claimant's individual
physical and mental impairments." Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). "Simply
because a hypothetical was posed does not mean that there was sufficient evidence to support it; the
ALl ultimately relies upon only credible, medically established limitations." Menuto v. Astrue, 2012

6 Ms. Eckenrode also claims that the AU erred in not finding that she was disabled pursuant to the Medical-Vocational
Guidelines, found at 20 C.F.R. § 404, subpt. P, app. 2, once she was 50 years old. She grounds this claim in Dr. Demby's
conclusion that she could only stand or walk for 2-4 hours in an 8-hourworkday, which she alleges should lead to a finding
under the Medical-Vocational Guidelines that she could only perform sedentary work, which as of age 50 would make her
disabled for purposes of the Act. However, because the Court concludes that the AU did not err in not adopting Dr.
Demby's finding as to Ms. Eckenrode's ability to stand during an 8-hour workday, her argument as to the Medical­
Vocational Guidelines is moot.

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WL 2594339, at *9 (W.D. Pa. June 13,2012) (citing Rutherford v. Barnhart, 399 F.3d 546,554 (3d
Cir.2005).
Before the two hypotheticals in question, the ALl posed a hypothetical based on a person
similar to Ms. Eckenrode with the environmental and other limitations he included in her RFC. These
limitations were supported by evidence in the record, whereas no such evidence supported the
propositions that Ms. Eckenrode would be off-task for 20 percent of the workday or absent at least two
days of work per month. Plaintiffs brief offers no support for such inferences. The Court concludes
that the ALJ properly disregarded the two contested hypotheticals, and that his prior hypothetical fairly
encompassed all of Ms. Eckenrode's individual physical and mental impairments and was therefore
supported by substantial evidence.

IV.

CONCLUSION
It is undeniable that Ms. Eckenrode has a number of impairments, and the Court is sympathetic

and aware of the challenges she faces in seeking gainful employment. Under the applicable standards
ofreview and the current state ofthe record, however, the Court must defer to the reasonable findings
of the ALJ and his conclusion that Plaintiff is not disabled within the meaning of the Social Security
Act, and that she has the RFC to perform light work.
For these reasons, the Court will grant the Motion for Summary Judgment filed by the
Commissioner and deny the Motion for Summary Judgment filed by Plaintiff.
An appropriate Order follows.

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Mark R. Hornak
United States District Judge

Dated: March 3rd , 2014
cc: All counsel of record

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