CHEPLIC v. COLVIN
Filing
18
MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 7/31/14. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARLEEN CHEPLIC,
Plaintiff,
v.
CAROLYN COLVIN, I
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
)
)
) Civil Action No. 2:13-cv-70l
)
) Judge Mark R. Hornak
)
)
)
)
)
MEMORANDUM OPINION
Mark R. Hornak, United States District Judge
I.
INTRODUCTION
Plaintiff, Darleen Cheplic, brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final determination of the Commissioner of Social Security ("Commissioner")
denying her application for disability insurance benefits ("DIB") under Title II of the Social
Security Act ("Act"), 42 U.S.C. §§ 401-403.
II.
BACKGROUND
A.
Facts
Plaintiff was born on August 21, 1961. (Tr. 39). She graduated from high school, did not
attend college, and her past relevant work includes employment as a bookkeeper and an
accounting clerk. Id. Plaintiff alleges disability as of February 1, 2009, id. at 103, due to posttraumatic stress disorder, depression, lack of concentration, arthritis, and neck and back pain, id.
I Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,2013, succeeding former
Social Security History - Social Security Commissioners,
Commissioner Michael 1. Astrue.
http://www.ssa.gov/history/commissioners.html(last visited on July 31,2014). As a result, 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).
at 135. The record reflects that Plaintiff has not engaged in substantial gainful work activity
since February 1, 2009.
B.
Procedural History
Plaintiff protectively filed an application for DIB on April 14, 2010, claiming total
disability since February 1, 2009. Jd. at 11. An administrative hearing was held on November
30, 2011, before Administrative Law Judge James Bukes ("ALJ"). Jd. at 35. Plaintiff was
represented by counsel and testified at the hearing. Jd. Tania Shullo, an impartial vocational
expert, also testified at the hearing. Jd.
On December 12, 2011, the ALJ rendered a decision unfavorable to Plaintiff in which he
found that Plaintiff retained the ability to perform jobs that exist in significant numbers in the
national economy and therefore, Plaintiff was not "disabled" within the meaning of the Act. Jd.
at 30. The ALl's decision became the final decision of the Commissioner on May 3, 2013, when
the Appeals Council denied Plaintiffs request to review the ALl's decision. Jd. at 1.
On May 20, 2013, Plaintiff filed her Complaint in this Court seeking judicial review of
the ALl's decision.
The parties have filed cross-motions for summary judgment.
For the
reasons that follow, the Court will grant the Motion for Summary Judgment filed by the
Commissioner and deny the Motion for Summary Judgment filed by Plaintiff.
III.
LEGAL ANALYSIS
A.
Standard of Review
The Act limits judicial review of disability claims to the Commissioner's final decision.
42 U.S.c. § 405(g). If the 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
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evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Conso!. Edison Co. v.
NLRB, 305 U.S. 197,229 (1938». It consists of more than a scintilla of evidence, but less than a
preponderance. Thomas v. Comm 'r o/Soc. Sec., 625 F.3d 798, 800 (3d Cir. 2010).
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 (1) 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) if not, whether he or she
can perform other work. See 42 U.S.C. § 404.1520; Newell v. Comm'r
0/ Soc.
Sec., 347 F.3d
541,545-46 (3d Cir. 2003) (quoting Burnett v. Comm'r o/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)(1). This may be
done in two ways:
In situations where a claimant files concurrent applications for SSI and OrB, 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, /19 n.1 (3d. Cir. 2002) ("This test [whether a person is disabled for purposes of qualifying
for SSl] 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."); Sullivan v. Zebley, 493 U.S. 521, 525
n.3 (1990) (holding that regulations implementing the Title II [DIB] standard, and those implementing the Title XVI
[SSI] standard are the same in all relevant aspects.); Morales v. Apfel, 225 F.3d 310,315-16 (3d. Cir. 2000) (stating
claimants' burden of proving disability is the same for both DIB and SS1).
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(1) by introducing medical evidence that the claimant is disabled per se because he or
she suffers from one or more of a number of serious impairments delineated in 20 C.F.R. pt. 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,
(2) in the event that the 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 the claimant from returning to
his or her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once it is shown that
the claimant is unable to resume his or her previous employment, the burden shifts to the
Commissioner to prove that, given the claimant's mental or physical limitations, age, education
and work experience, he or she is able to perform substantial gainful activity in jobs available in
the national economy. Rutherford, 399 F.3d at 551; Newell, 347 F.3d at 546; Jones, 364 F.3d at
503; Burns, 312 F.3d at 119.
Where a claimant has multiple impairments that may not individually reach the level of
severity necessary to qualify anyone impairment for Listed Impairment status, the
Commissioner nevertheless must consider all of the impairments in combination to determine
whether, collectively, they meet or equal the severity of a Listed Impairment. Diaz v. Comm'r of
Soc. Sec., 577 F.3d 500, 502 (3d Cir. 2009); 42 U.S.c. § 423(d)(2)(8) ("in determining an
individual's eligibility for benefits, the Secretary shall consider the combined effect of all of the
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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 of the
Act at the fifth step of the sequential evaluation process after determining that, considering
Plaintiffs age, education, work experience, and residual functional capacity ("RFC"), there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform.
B.
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 Medical
Center 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 determine whether they are
supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm'r of Soc. Sec.
Admin., 181 F.3d 429,431 (3d Cir. 1999).
Plaintiff does not challenge the entirety of the ALI's conclusion that she was not disabled
under the Act. Rather, Plaintiff contends that the ALJ erred in failing to consider the possibility
of a closed period of disability from February 2009 to June 2010, when her treating pain
management physician, Dr. Bud Lateef, found Plaintiff capable of light work. Pl.'s Br. in SUpp.
of Summ. J. ("PI.'s Br."), ECF No. 13, at 6. The Commissioner contends that the decision of the
ALJ should be affirmed because substantial evidence supports the ALJ's conclusion that Plaintiff
was not disabled between February 2009 and June 2010. Def.'s Br. in Supp. of Summ. J.
("Def.' s Br."), ECF No. 17, at 11.
In order to establish a disability under the Act, a claimant must demonstrate that there is
some "medically determinable basis for an impairment that prevents [her] from engaging in any
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'substantial gainful activity' for a statutory twelve-month period." Stunkard v. Secretary of
Health and Human Services, 841 F.2d 57,59 (3d Cir. 1988); 42 U.S.c. § 423(d)(l). Under 20
C.F.R. § 404.620, a claimant's application for DIB will remain in effect until the date that the
ALJ issues a hearing decision.
Thus, the ALJ analyzed Plaintiff s disability claim for a
"medically determinable basis for an impairment that prevented [her] from engaging in any
substantial gainful activity for a statutory twelve-month period" within the time frame provided
by Plaintiffs DIB application
from her alleged onset date of February 1,2009, through the date
of the ALl's decision, December 12,2011. See Tr. 11. 3
Plaintiff contends that "for the time period from [] February 2009 through June 2010 []
there is ample evidence of the inability to work, which is something that the ALJ never
considered or entertained." PI. 's Br. at 6. The linchpin of Plaintiffs argument is that Plaintiffs
"extensive treatment [during that period] culminated in Dr. Lateef finding his patient capable of
light work by June 2010," thereby warranting a finding that Plaintiff was disabled for the closed
period oftime between February 2009 and Dr. Lateefs June 2010 assessment. ld.
In his June 18, 2010 Medical Source Statement about Plaintiff, Dr. Lateef concluded that
Plaintiff was capable of lifting and carrying up to 20 pounds occasionally and up to 10 pounds
frequently, based on his last examination of Plaintiff on May 18, 2010. (Tr. 396-97). Dr. Lateef
also concluded that Plaintiff had no limitations in standing, walking, sitting, pushing, pulling, or
postural activities, and no environmental restrictions or limitations in other physical functions.
[d.
On this point, Plaintiff testified at the administrative hearing on November 30, 20 II that she stopped working in
February of2009, and remained disabled at the time of the hearing. (Tr. 40-53).
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By grounding her closed-period argument in this June 2010 finding of Dr. Lateef,
Plaintiff incorrectly implies that Dr. Lateef had previously given Plaintiff a more restrictive
assessment of her abilities to perform physical work-related activities, such that his June 2010
assessment was a prospective assessment, rather than an assessment that was both prospective
and retrospective. Indeed, nothing in the ALl's discussion of Dr. Lateef's treatment records,
which extended from August 25, 2009 through September 13, 2011, see (Tr. 22), or, for that
matter, in the records themselves, reveals any marked change in Plaintiff's condition by June
2010 that would warrant the ALJ considering June 18, 2010 as the "start date" for Plaintiff's
purported new ability to engage in light work activity, and thereby render the ALl's decision
unsupported by substantial evidence.
Rather, the ALl's decision points to sufficient record evidence to support the conclusion
that, for the whole period between February 1, 2009 and the date of the ALl's decision, Plaintiff
was not "disabled" within the meaning of the Act. See, e.g., id. at 22 (the ALJ noting Dr.
Lateef's initial finding that Plaintiff suffered from cervicalgia4 and myofascial 5 pain); id. (the
ALI noting that NovaCare Rehabilitation records confirm that Plaintiff received physical therapy
for cervicalgia and lumbag0 6 from August 2009 through October 2009 and had a good prognosis
at the time of discharge); id. (the ALJ noting that Dr. Lateef prescribed pain-relieving medication
as of the initial assessment and determined that Plaintiff was not taking any pain medications at
4 "Cervicalgia" refers to "[d]iscomfort or more intense forms of pain that are localized to the cervical region. This
term generally refers to pain in the posterior or lateral regions of the neck." See Medical Dictionary, U.S. National
Library of Medicine, available at http://www.nlm.nih.gov (last visited July 31,2014).
"Myofascial" is defined as "[o]f or relating to the fascia surrounding and separating muscle tissue." STEDMAN'S
MEDICAL DICTIONARY 1272 (28th ed. 2006).
5
"Lumbago" is "pain in mid and lower back; a descriptive term not specitying cause." STEDMAN'S MEDICAL
DICTIONARY 1121 (28th ed. 2006).
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the time of her September and October 2009 visits); id. (the ALJ noting that Dr. Lateef ordered a
CT scan of Plaintiffs cervical spine in October 2009, which demonstrated no fracture or
traumatic subluxation7 of the cervical spine); id. (the ALJ noting that Dr. Lateefs records
indicate that he performed several left cervical facet medial branch blocks and that Plaintiff "was
noted to have successful facet blocks on the left side with some resolution of her pain").
Furthermore, the ALJ explained in his decision that while he was incorporating Dr.
Lateefs June 18, 2010 lifting restriction of 20 pounds occasionally and 10 pounds frequently
into his RFC determination, he viewed Dr. Lateefs June 2010 assessment in the context with the
record before him and not as an "endpoint" for any limitations in standing, walking, or sitting.
Id. at 27. This is reflected in the ALl's ultimate conclusion that "the evidence at the hearing
level justifies a restriction to the light exertional level with respect to standing, walking, and
sitting as well as the need to alternate sitting with standing given her continued complaints of
back and neck pain." Id.
Relative to Plaintiffs complaints of pain, the ALJ also discussed the findings of and
treatments administered by Dr. Edward Poon, an orthopedic specialist whose records address the
period from August 5, 2009 through January 17,2010, which is within Plaintiffs alleged closed
period of disability. Id. at 23. The ALJ pointed out that Dr. Poon found, among other things,
that (1) "the prior knee films of February 2009 did not reveal any significant DJD of the knee"
despite that Plaintiff "complained of having a lot of knee pain, especially with stair climbing and
descending;" (2) "[b]ased on the examination findings, he believed that [Plaintiff! had sustained
a cervical strain and referred her to Dr. Lateef for pain management and evaluation of the
"Subluxation" is defined as "[a]n incomplete luxation or dislocation; although a relationship is altered, contact
between joint surfaces remains." STEDMAN'S MEDICAL DICTIONARY 1856 (28th ed. 2006).
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cervical spine;" (3) on October 27, 2009, Dr. Poon performed arthroscopy to repair the partial
medial and lateral meniscectomies, and "noted that she was ambulating without an assistive
device and only a trace limp at the initial postoperative visit;" (4) that Plaintiff "continued to
complain of medial 8 sided knee pain especially with ambulation and stair climbing and
descending at the following visits in December 2009 and January 2010;" and (5) that "[i]n the
last documented visit in January 2010 Dr. Poon noted that she was better from having the
surgery but was not completely better at that point," while the "examination findings in January
2010 showed full range of motion of the knee" and Plaintiff "was to return on an as needed
basis." Id. at 24.
Ultimately, the ALJ found that "[t]he monthly office notes documented the claimant's
reports of pain and associated functional difficulties, primarily with lifting, climbing steps, and
getting up and down. However, the examination findings consistently noted normal cervical
posture on examination with normal gain, motor, sensory, and reflexes. The notes also document
the patient's reports of tenderness to palpation of the bilateral c-spine paraspinals. She has a
decreased range of motion upon extension." Id. at 28.
There is simply no indication that the ALJ, as Plaintiff contends, "never entertained" or
even "considered" whether Plaintiff was disabled between February 2009 to June 2010. His
decision is sufficiently supplied with examples to the contrary. This Court concludes that the
ALl's finding that Plaintiff did not have a "medically determinable basis for an impairment that
prevents [her] from engaging in any 'substantial gainful activity' for a statutory twelve-month
period" at any time between February 1,2009, her alleged onset date, and the date of the ALl's
8 "Medial" is defined as "[r]elating to the middle or center." STEDMAN'S MEDICAL DICTIONARY 1167 (28th
ed. 2006).
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decision, is supported by substantial evidence. See Stunkard v. Secretary ofHealth and Human
Services, 841 F.2d 57,59 (3d Cir. 1988); 42 U.S.C. § 423(d)(1).
Plaintiff does cite to two district court cases outside our circuit, McKoy v. Colvin,
2013 WL 5231524 (D.S.C. 2013) and Vickers v. Colvin, 2013 WL 3464324 (W.D. Ark. 2013),
for the proposition that "there is precedent for remands to be issued where an ALl did not
consider the possibility of a closed period," PI.' s Br. at 6, which, as this Court noted, is not the
case here. Regardless, these cases are distinguishable on other grounds, as well. In McKoy, two
of the plaintiffs treating physicians included temporary restrictions for a statutory twelve-month
period in their uncontradicted opinions of the plaintiffs condition, such that the McKoy court
concluded that the ALl should have considered a closed period of disability, instead of relying
on two functional capacity evaluations completed by the plaintiffs physical therapists, after that
period of temporary restriction, to support the conclusion that the plaintiff was able to perform
light work. McKoy, 2013 WL 5231524, at *3-4. The record does not reveal, nor does Plaintiff
argue, that any of Plaintiffs treating physicians specifically included uncontradicted temporary
restrictions for a statutory twelve-month period in their opinions that the ALl ignored.
As for Vickers, the district court concluded in that case that the ALl erred in giving
substantial weight to the opinions of the agency physicians who did not have the benefit of the
plaintiffs complete medical record or an in-person examination of the plaintiff, and erred in
giving insufficient weight to the opinion of the plaintiffs treating physician who was the only
physician to render an opinion about the plaintiffs physical limitations.
Vickers, 2013 WL
3464324, at * 4. Again, Plaintiff does not make that argument here, nor does this Court conclude
that the ALl made such a mistake.
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IV.
CONCLUSION
Under the applicable standards of review and the current state of the record, this Court
concludes that the ALl's decision should be affirmed as it is supported by substantial evidence
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,"
Richardson, 402 U.S. at 401
and thus, this Court must defer to the ALl's conclusion that
Plaintiff is not disabled within the meaning of the Act, for any twelve-month period between her
alleged onset date of February 1, 2009 and the date of the ALl's decision. 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 will follow.
Dated:1·
~\
,20~
United States District Judge
cc: All counsel of record
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