ISBELL v. ASTRUE

Filing 13

MEMORANDUM AND ORDER OF COURT denying 8 plaintiff's Motion for Summary Judgment and granting 10 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 5/19/14. (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYL VANIA
DAMEON MONROE ISBELL,
Plaintiff,

v.
CAROLYNW. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 13-1023

MEMORANDUM AND ORDER OF COURT
AND NOW, this j 9t:1;;of May, 2014, upon due consideration of the parties' crossmotions for summary judgment pursuant to plaintiff s request for review of the decision of the
Commissioner of Social Security ("Commissioner") partially denying plaintiff s applications for
disability insurance benefits and supplemental security income under Titles II and XVI,
respectively, ofthe Social Security Act ("Act"), IT IS ORDERED that the Commissioner's motion
for summary judgment (Document No. 10) be, and the same hereby is, granted and plaintiffs
motion for summary judgment (Document No.8) be, and the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the ALJ explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Where the ALJ's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALJ's
decision here because the record contains substantial evidence to support the ALl's findings and
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conclusions.

Plaintiff protectively filed his pending applications for benefits) on April 22, 2010, alleging
a disability onset date of August 2, 2009, due to knee and back impairments.

Plaintiff's

applications were denied initially. At plaintiff's request an ALJ held a hearing on November 2,
2011, at which plaintiff, represented by counsel, appeared and testified. On December 7,2011, the
ALJ issued a partially favorable decision finding plaintiff disabled beginning March 9, 2011, but
not disabled before that date. On June 10, 2013, the Appeals Council denied review making the
ALl's decision the final decision of the Commissioner.
Plaintiff was 37 at the time of the ALl's decision and is classified as a younger person
under the regulations. 20 C.F.R. §404.1563(c) and 416.963(c). He has a high school education
having obtained a QED.

He has past relevant work as a waiterlbartender, janitor, packaging

division supervisor, dishwasher and forklift operation crew leader, but he has not performed any
substantial gainful activity since his alleged onset date.
After reviewing plaintiff's medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiff became disabled within the meaning ofthe Act
on March 9, 2011. The ALJ found that while plaintiff suffers from the severe impairments of
degenerative joint disease ofthe knees, status post multiple reconstruction surgery, anserine bursitis
bilaterally, lumbosacral musculoskeletal strain, and chronic pain syndrome, the medical evidence
does not show that plaintiff's impairments, alone or in combination, meet or medically equal the
criteria of any of the impairments listed at Appendix 1 of 20 C.F .R., Part 404, Subpart P.
The ALJ also found that prior to March 9, 2011, plaintiff retained the residual functional
capacity to perform sedentary work but limited to carrying 5 pounds occasionally and 2 pounds

For purposes of plaintiffs Title II application, the ALl found that plaintiff met the disability
insured status requirements of the Act on his alleged onset date and has acquired sufficient coverage to
remain insured through June 30, 2014.
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frequently, he can never knee or crawl and can only occasionally engage in all other postural
activities. (R.22). A vocational expert identified numerous categories ofjobs which plaintiff could
have performed prior to March 9, 2011, based upon his age, education, work experience and
residual functional capacity, including telephone clerk, telephone solicitor and cashier. Relying
on the vocational expert's testimony, the ALJ found that prior to March 9, 2011, there were jobs
existing in significant numbers in the national economy that plaintiff could have performed.
Accordingly, the ALJ concluded that plaintiff was not disabled under the Act prior to March 9,
2011.
After March 9, 2011, however, the day that plaintiff underwent a total left knee

arthroplasty, the ALJ found additional limitations in plaintiffs ability to perform sedentary work,
including: that he is restricted to a sit/stand option which would allow him to alternate between
sitting for a 1;2 hour, standing for 5 minutes, then sitting for a 1;2 hour; that he can perform only
simple, unskilled, repetitive work; and, that he will be off-task for 10 minutes every hour. (R. 25).
With these additional limitations, the vocational expert testified that there are no jobs in the
national economy that plaintiff can perform. Accordingly, the ALJ found that plaintiff became
disabled on March 9, 2011.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment which can be expected to last for a continuous period
of at least twelve months. 42 U.S.C. §§423(d)(1)(A) and 1382c(a)(3)(A). The impairment or
impairments must be so severe that the claimant "is not only unable to do his previous work but
cannot, considering his age, education and work experience, engage in any other kind ofsubstantial
gainful work which exists in the national economy .... " 42 U.S.c. §§423(d)(2)(A) and
§ 1382c(a)(3)(8).
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The Commissioner has promulgated regulations incorporating a five-step sequential
eval uation process for determining whether a claimant is under a disabili ty. 2 20 C.F .R. §§404 .152 0
and 416.920. If the claimant is found disabled or not disabled at any step, the claim need not be
reviewed further. Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
Here, plaintiff challenges the ALl's determination that he was not disabled prior to March
9, 2011. Specifically, plaintiff contends that: (1) the ALl improperly evaluated the medical
evidence in finding that plaintiffs treating physician's report dated August 11,2011, was not
retroactive to the period from plaintiffs alleged onset date to March 9, 2011; (2) the ALl erred in
not re-contacting his treating physician to ascertain whether the report was intended to be
retroactive; and, (3) the ALl erred in failing to consult with a medical advisor to establish
plaintiffs onset date. Upon review, this court is satisfied that the ALl properly evaluated the
evidence and that the ALl's finding that plaintiff was not disabled prior to March 9, 2011, is
supported by substantial evidence.
Plaintiffs first argument is that the ALl improperly evaluated the medical evidence in
failing to give retroactive effect to the August 11, 2011, physical residual functional capacity
questionnaire (R. 300-305) provided by plaintiffs treating physician, Dr. Scott Baron, which the
ALl found to establish plaintiff s functional capabilities after his knee surgery on March 9, 2011.
(R. 25). The court finds no error in the ALl's analysis of this evidence nor his determination that

Dr. Baron's assessment is not retroactive to the period prior to plaintiffs surgery.

2 The AU must determ ine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920; Newell v. Commissioner
of Social Security, 347 F.3d 541,545 (3d Cir. 2003).

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Under the Social Security Regulations and the law of this circuit, opinions of treating
physicians are entitled to substantial, and at times even controlling, weight.

20 C.F.R.

§§404.1527(d)(2) and 416.927(d)(2); Fargnoli, 247 F.3d at 33. Where a treating physician's
opinion on the nature and severity of an impairment is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence
in the record, it will be given controlling weight. Id. However, when a treating source's opinion
is not entitled to controlling weight, it is to be evaluated and weighed under the same standards
applied to all other medical opinions, taking into account numerous factors, including the opinion's
supportability, consistency and specialization. 20 C.F.R. §§404.1527(d) and 416.927(d).
Importantly, the opinion of any physician on the issue of what an individual's residual functional
capacity is or on the ultimate determination of disability never is entitled to special significance.
20 C.F.R. §§404.1527(e) and 416.927(e); SSR 96-5p.
Here, the ALJ adhered to the foregoing standards in evaluating Dr. Baron's assessment and
in explaining why it should not be given retroactive effect to the period prior to March 9, 2011.
(R.24-25). In particular, the ALJ noted that there is no indication in Dr. Baron's report that his
assessment was retroactive and that "any such attempt to apply these assessments to the time
period prior to March 9, 2011, would be inconsistent with Dr. Baron's own treatment records."
(R.25). The ALJ further noted plaintiffs training for work in graphic design in December 2009,
that he walked his children to school in June 2010 and that he reported in September 20 I 0 that his
pain level was "not real bad." (Id.)
The ALJ's analysis is supported by the record. As noted by the ALJ in his decision, there
is nothing in Dr. Baron's pre-surgery records indicating that plaintiffs impairments resulted in the
debilitating limitations contained in the August 2011 assessment prior to March 9, 2011. Rather,
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while acknowledging the certainty that plaintiff ultimately would require total knee replacements
at some point, they further suggest that plaintiff was coping fairly well and was not totally
debilitated. As ofNovember 5, 2009, Dr. Baron remarked that plaintiffs tolerances for standing
and walking were for 30 minutes straight. (R. 205). On December 17, 2009, he noted that
plaintiffs knees "are actually doing better" while regularly taking anti-inflammatory medication
and that while he was still "moderately symptomatic" the pain was more tolerable. (R. 204). In
that same report, Dr. Baron also indicated that he wanted to "buy [plaintiffJ some years" before the
requisite total-knee arthroplasty. ad.)
In addition, the other medical evidence in the record also supports the ALl's determination
that plaintiff's impairments did not become disabling until March 9, 2011. On August 10,2010,
the consultative examiner determined that plaintiff could stand/walk about 3 hours per day and that
his sitting was unlimited. (R. 211). On August 17, 2010, the state agency reviewing physician
indicated that the consultative examiner's statement that plaintiff is limited in standing, walking,
kneeling, stooping, crouching and climbing is well-supported by the medical and non-medical
evidence. (R. 73). And, on October 29,2010, Dr. Pressman, an associate ofDr. Baron, indicated
that plaintiff at that time was "coping fairly well" and suggested that plaintiff would be able to do
"fully sedentary" work. (R. 221).
There is no additional medical evidence in the record between October 29, 2010, and
March 9, 2011. Based on the available medical records, the court is satisfied that the ALl's
determination that plaintiffwas not disabled from his alleged onset date until March 9, 2011, is
supported by substantial evidence. And although plaintiff argues that it was not logical for the ALJ
to find that he was not disabled before the surgery, but became disabled after the surgery, when the
surgery was intended to correct the problem, not enhance it, the post-surgery records and plaintiffs
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testimony suggest that the surgery was not successful, explaining the more debilitating limitations
set forth in Dr. Baron's August 2011 assessment. On July 15,2011, Dr. Pressman reported that
plaintiffs range of motion "is less than which would be desired" CR. 376). By October 28,2011,
Dr. Pressman was reporting that plaintiff had a "poor result on the left [knee] with significant
stiffness" and, in addition, that he suffered a new injury to his right knee in a fall down five stairs.
(R. 371-72). In addition, plaintiff testified at the hearing on November 2, 2011, that he would need
a "revision" on his left knee because it was "not responding." (R. 52).
Based upon his review ofthe entire record, the ALJ concluded that prior to March 9, 2011,
plaintiffs impairments, while severe, did not result in any limitations beyond lifting and carrying
restrictions, the inability to ever kneel or crawl, and only occasional other postural activities.
Because the additional limitations arising post-surgery were not supported by the objective
evidence prior to surgery, and were inconsistent with other substantial pre-surgery evidence in the
record, including Dr. Baron's own pre-surgery findings, the ALJ did not err in not giving Dr.
Baron'sAugust20II assessment retroactive effect. 20 C.F.R. §§404.1527(d)and416.927(d); SSR
96-2p.
In sum, the ALJ did a thorough job in his decision in setting forth the relevant medical
evidence and explaining why he rejected or discounted any evidence. The court has reviewed the
ALJ's decision and the record as a whole and is satisfied that the ALJ's evaluation of the medical
evidence is supported by substantial evidence.
Plaintiff next contends that the ALJ erred in not re-contacting Dr. Baron to ascertain
whether the limitations set forth in his August 11,2011, assessment were intended to be retroactive
to the period from plaintiffs alleged onset date to the date of his surgery on March 9, 2011. The
questionnaire completed by Dr. Baron expressly asked for the earliest date that the "description
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of symptoms and limitations" applied. No response was given to this question. Plaintiff now
argues that the ALJ should have re-contacted Dr. Baron for an answer. The court finds no error
in the ALJ's decision not to re-contact Dr. Baron.
The Regulations in effect at the time ofthe hearing in this case provided 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. §§404.1512(e)(1) &416.912(e)(1 ).3 However, re-contact under the applicable Regulations
was required only when "the evidence we receive from your treating physician ... is inadequate to
determine whether you are disabled." Johnson v. Commissioner ofSocial Security, 529 F .3d. 198,
205 (3d. Cir. 2008); Buckner v. Astrue, 2012 WL 5392255 at >I< 11.
Here, the record was developed sufficiently for the ALJ to make the determination that
plaintiff was not disabled prior to March 9, 2011, and there was no need for him to re-contact Dr.
Baron. Indeed, even had Dr. Baron been re-contacted, and had he then indicated that his
assessment was meant to be retroactive, the ALJ would not have been obliged to accept that
answer in light of the substantial other evidence in the record establishing that the debilitating
limitations arising from plaintiffs impairments did not begin until March 9, 2011. Accordingly,
the court finds no error in the ALJ's decision not to re-contact Dr. Baron under the Regulations in
place at the time of the decision.

Johnson, 529 F.3d at 205 (ALJ had no duty to re-contact a

medical source and provide that source with opportunity to explain testimony that the record

3
20 C.F.R. §§404.1512( e)(1) & 416.912(e)(I) were eliminated from the Regulations effective
March 26, 2012, and the new protocol for re-contacting medical sources is set forth at 20 C.F.R.
§§404.1520b & 416.920b. Buckner v. Astrue, 2012 WL 5392255 * 11, n.4 (W.D.Pa., Nov. 5, 2012).
However, the prior provisions continue to apply in cases such as this that were adjudicated prior to March
26,2012. Johnson v. Colvin, 2014 WL 789084 *12, n. 16 (W.D.Pa., Feb. 26, 2014).

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disputed); Johnson v. Colvin, 2014 WL 789084 at *12 (ALl's finding that limitations were
inconsistent with the evidence did not obligate him to re-contact medical source for clarification);
Bucknerv. Astrue, 2012 WL 5392255 at * 11 (record was sufficiently developed for ALJ to make
disability determination without need to re-contact medical source).
Plaintiffs final argument is that the ALJ erred in failing to consult with a medical advisor
to establish plaintiffs onset date pursuant to SSR 83-20. 4 In support, plaintiff relies upon the
decision of the Third Circuit Court of Appeals in Walton v. Halter, 243 F.3d 703 (3d Cir.2001),
in which it was held that the ALJ must call upon the services of a medical advisor where there is
no legitimate medical basis for the ALl's determination of the disability onset date. Plaintiffs
argument is not well-taken.
Walton's directive to seek out the services of a medical advisor is limited to situations
where the underlying disease is progressive and difficult to diagnose, where the alleged onset date
is far in the past, and where medical records are sparse or conflicting.

See Newell v.

Commissioner ofSocial Security, 347 F .3d at 549 n.7; Bailey v. Commissioner ofSocial Security,
354 Fed.Appx. 613,618 (3d. Cir. 2009). Here, unlike in Walton, there is no deficiency in the
medical records that would have required the assistance of a medical advisor to establish an onset
date. Rather, the medical records, as discussed above, were available and were sufficient to
establish the onset date determined by the ALJ without any need for a medical advisor.

See,~,

Perez v. Commissioner ofSocial Security, 521 Fed.Appx. 51, 57 (3d Cir. 20 13)(no need to consult

SSR 83-20 provides the analytical framework for determining a disability onset date. Newell
v. Commissioner of Social Security, 347 F.3d 541,548 (3d Cir. 2003). The onset date is defined under that
Ruling as "the first day an individual is disabled as defined in the Act and regulations." SSR 83-20.
Factors relevant to the determination ofthe disability onset date include the individual's alleged onset date,
his work history and the medical evidence. Id. SSR 83-20 also instructs that "the onset date should be set
on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently
severe to prevent the individual from engaging in [substantial gainful activity] for a continuous period of
at least 12 months .... "
4.

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medical advisor where medical records available to establish onset date); Bailey, 354 Fed. Appx.
at 618 (no need for medical advisor where plaintiff did not allege that record was incomplete or
conflicting).

In this case, it is clear that the ALJ, as required under SSR 83-20, considered all of the
evidence, including plaintiffs alleged onset date, his work history and the medical evidence, and
determined that plaintiffs impairments first became disabling on March 9, 2011. The foregoing
evidence was sufficient for the ALJ to establish that day as plaintiff s onset date without the need
to consult with a medical advisor. The court is satisfied that the ALl's determination ofplaintiff's
onset date is supported by substantial evidence.
After carefully and methodically considering all of the medical evidence of record and
plaintiffs testimony, the ALJ determined that plaintiff is not disabled within the meaning of the
Act. The ALJ's findings and conclusions are supported by substantial evidence and are not
otherwise erroneous. Accordingly, the decision of the Commissioner must be affirmed.

fo-

Gustave Diamond
United States District Judge

cc:

George Clark, Esq.
Woomer & Hall
2945 Banksville Road
Suite 200
Pittsburgh, PA 15216
Michael Colville

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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