JOHNSON v. COLVIN
Filing
16
MEMORANDUM OPINION indicating that, for reasons stated more fully within, Plaintiff's Motion for Summary Judgment 10 is denied, and Defendants Motion for Summary Judgment 14 is granted. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 9/11/14. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ADRIANE TAMEKO JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
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Civil Action No. 14-0041
Judge Nora Barry Fischer
MEMORANDUM OPINION
NORA BARRY FISCHER, DISTRICT JUDGE
I.
INTRODUCTION
Adriane Tameko Johnson (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and
1383(c), seeking review of the final determination of the Commissioner of Social Security
(“Defendant” or “Commissioner”) denying her application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-402 (“the Act”) and
supplemental security income (“SSI”) under Title XVI.
II.
PROCEDURAL HISTORY
Plaintiff applied for both DIB and SSI on July 30, 2010, claiming an amended disability
onset date of February 14, 2009. (R. at 18).1 Both claims initially were denied on October 14,
2010. (R. at 13, 115, 120). Plaintiff requested an administrative hearing as to the DIB
determination on November 24, 2010. (R. at 13, 128). This hearing was conducted on December
2, 2011 in Mars, Pennsylvania at which Plaintiff, represented by Katrine M. Erie, Esq., and an
impartial vocational expert testified. (R. at 13).
1
Citations to Doc. Nos. 5-2 through 5-32 are hereinafter referred to as “R. at
1
.”
On June 12, 2012, the Administrative Law Judge (“ALJ”), Brian W. Wood, issued his
ruling, which was unfavorable to Plaintiff. (R. at 29). On July 25, 2012, Plaintiff initiated a
request for review of the ALJ’s decision regarding DIB to the Appeals Council. (R. at 9).
Plaintiff’s attorney also submitted a letter to the Appeals Council, dated October 11, 2012,
arguing that the ALJ’s decision should be reversed, and the Council should either remand the
case back to the ALJ for further analysis of the record or find the claimant disabled and,
therefore, unable to engage in substantial gainful activity. (R. at 263-87). On November 14,
2013, the Appeals Council denied Plaintiff’s request for review, thereby making the decision of
the ALJ the Commissioner’s final decision. (R. at 1). Plaintiff filed her Complaint on January 9,
2014. (Docket No. 1). Defendant filed her Answer on April 3, 2014. (Docket No. 4). The parties
then filed cross-Motions for Summary Judgment. (Docket Nos. 10, 14). The matter, having been
fully briefed (Docket Nos. 11, 15), is now ripe for disposition.
III.
STATEMENT OF FACTS
A. General Background
Plaintiff was born on December 20, 1972 and was thirty-eight years old at the time of her
administrative hearing. (R. at 45). Plaintiff is not married and lives with her three children. (R. at
47). Her income consists of County assistance and unemployment extension. (Id.). She does not
have problems getting along with others, and has never been fired from a job due to problems
with coworkers. (R. at 18).
Plaintiff earned a high school diploma. (R. at 48, 252). In October 2009, she began at
Sanford-Brown Institute, pursuing an associate’s degree in anesthesia technology, but withdrew
in September 2011 due to an excess of absences caused by medical impairments. (R. at 48-49,
252). Plaintiff’s most recent employment was at Holy Cross Hospital in Silver Spring, Maryland,
working as a Tech Assistant, until she was terminated in April 2008. (R. at 52-53). This job
2
consisted of setting up for contrast injections, turning over the room for the next procedure, and
helping with biopsies. (R. at 53). Previously, Plaintiff held the job of a child care worker from
2000-2002. (R. at 97). From 2001-2002, she was a shipper for Mail Boxes Etc., where she was
required to lift more than 50 pounds. (R. at 55, 98, 249). She then worked as a child development
teacher for preschoolers at the C.H.I.L.D Center in 2002. (R. at 55, 97, 249). For seven months in
2004, she worked part-time at Holy Cross Hospital as an in-house transporter, a job which
entailed moving patients from one place to another. (R. at 54, 98, 249). From 2004-2008, she
was a radiology technician at Holy Cross. (Id.).
In her application for DIB and SSI, Plaintiff claimed that she has been unable to work
since the amended onset date of February 14, 2009 due to the following health conditions:
bilateral carpal tunnel syndrome (CTS), 2 tendinopathy of the left shoulder, mild degenerative
disc disease (DDD) of the thoracic and lumbar regions, chronic otitis externa,3 obstructive sleep
apnea, Marfan Syndrome, 4 the residual effects of a thoracic aortic aneurysm 5 with repair,
abdominal aortic aneurysm, gastroesophageal reflux disease (GERD), goiter, diabetes mellitus,6
polycystic ovary syndrome,7 hypertension, obesity, and major depression. (R. at 15).
2
Carpal tunnel syndrome is a “condition in which there is excessive pressure on the median nerve. This is the nerve
in the wrist that allows feeling and movement to parts of the hand. Carpal tunnel syndrome can lead to numbness,
tingling, weakness, or muscle damage in the hand and fingers.” PUBMED HEALTH
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001469/ (last visited Jul. 29, 2014).
3
Acute otitis externa is an inflammatory condition of the ear canal, with or without infection. Symptoms include ear
discomfort, itchiness, discharge and impaired hearing. It is also known as 'swimmer's ear' and can usually be treated
successfully with a course of ear drops. PUBMED HEALTH http://www.ncbi.nlm.nih.gov/pubmed/20091565 (last
visited Jul. 22, 2014).
4
Marfan syndrome is a disorder that affects the connective tissue, which is the tissue that strengthens the body's
structures. Disorders of connective tissue affect the skeletal system, cardiovascular system, eyes, and skin. PUBMED
HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001455/ (last visited Jul. 22, 2014).
5
“An aneurysm is an abnormal widening or ballooning of a portion of an artery due to weakness in the wall of the
blood vessel.” A thoracic aortic aneurysm occurs in the part of the body's largest artery, the aorta, which passes
through the chest. PUBMED HEALTH http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002107/ (last visited Jul. 29,
2014).
6
Diabetes mellitus is “a chronic metabolic disorder in which the use of carbohydrate is impaired and that of lipid
and protein is enhanced.” STEDMAN’S MEDICAL DICTIONARY 529 (28th ed. 2006).
7
Polycystic ovary syndrome involves “enlarged cystic ovaries, characteristic of the Stein-Leventhal syndrome.”
Clinical features of the syndrome are abnormal menses, obesity, insulin resistance, and evidence of masculinization,
such as hirsutism. STEDMAN’S MEDICAL DICTIONARY 1396 (28th ed. 2006).
3
Plaintiff takes care of her children, prepares meals, is able to manage her finances, reads,
plays board games, uses a computer, finishes what she starts, and is independent in personal care.
(R. at 18, 212-215). Her partner helps out with household chores and caring for Plaintiff’s
children. (R. at 75, 78-79). She cannot go outside the home alone, because she gets dizzy and
falls. (R. at 215). The dizziness also affects her ability to lift, squat, bend, walk, sit, kneel, climb
stairs, and use her hands. (R. at 217). In her Self-Report, Plaintiff described her daily activities as
including: getting up at 4:30 a.m. to watch TV; making breakfast for herself and her children;
reading a book for school; playing computer games; making lunch for her children; preparing
dinner; watching TV; and then going to bed. (R. at 212). She occasionally needs to be reminded
to take her medication. (R. at 214). She denied problems with personal care. (R. at 213). Plaintiff
reported that she does not handle stress well, but rather shuts down and does not talk. (R. at 218).
Furthermore, Plaintiff avers that she can walk “a couple of blocks” before needing to rest for 20
minutes. (R. at 217). Otherwise, Plaintiff reports that her level of social activities has not
changed since her alleged disability onset because she “never had any activities.” (Id.).
1. Aneurysms8
Plaintiff has developed multiple aneurysms, likely due to Marfan syndrome, which cause
chest, back, and stomach pain, daily palpitations, and dizziness. (R. at 252). Plaintiff takes pain
medications to cope with the pain. (R. at 59). The Court notes the discrepancies in the record
relative to the quantity and frequency of pain medication used by Plaintiff. In her Supplemental
Functional Questionnaire, Plaintiff indicated that she does not take pain medicine. (R. at 221).
However, in her testimony in front of the ALJ, Plaintiff stated that she “feel[s] addicted to pain
medicine.” (R. at 91).
8
Aneurysms are the “circumscribed dilation of an artery or a cardiac chamber, in direct communication with the
lumen, usually resulting from an acquired or congenital weakness of the wall of the artery or chamber.” STEDMAN’S
MEDICAL DICTIONARY 83 (28th ed. 2006).
4
In 1999, Plaintiff went to the emergency room for chest pain where doctors discovered
her first thoracic aortic aneurysm. (R. at 726). Plaintiff was five months pregnant, and the
aneurysm was stable at that time. (R. at 56-57, 726). Plaintiff lived with the thoracic aortic
aneurysm for over ten years, and the pain affected her almost daily. (R. at 58). On a few
occasions the pain became so intolerable that she thought her aneurysm was leaking. (Id.).
Consequently, she went to the emergency room, where it was determined that it only had slightly
grown. (Id.).
In August 2009, Dr. Chris Cook began monitoring the size and growth of the aneurysm.
(R. at 22). In September 2011, the thoracic aortic aneurysm grew to 6.5 centimeters, so Dr.
Robert Rhee performed an endovascular repair of the descending thoracic aneurysm. (R. at 57,
253, 982). Plaintiff initially reported that she had some back pain after the surgery, but it was
under control with pain medication, so she was discharged. (R. at 982). Dr. Rhee completed a
follow-up after the aneurysm repair surgery on October 24, 2011 and reported that Plaintiff was
doing well with no complications. (R. at 1373). Since having the surgery, Plaintiff has
experienced back pain and breathing problems. (R. at 61). She testified that she thinks these
problems are due to lying flat on her back for 10 hours and being intubated the entire time. (Id.)
She has completed breathing treatments to improve her breathing. (Id.). Plaintiff’s back pain is
between her shoulders, and she takes oxycodone approximately four times per week to deal with
same. (R. at 62).
Plaintiff’s second aneurysm is a “mild aneurysmal dilation of the abdominal aorta.” 9 (R.
at 443-45). Her doctors routinely conduct CAT scans every six months in order to check the size
of the aneurysm, but it has not yet grown to an operable size. (R. at 63). In a July 2009, Dr. Iozzi
performed a CT of the abdomen with contrast. (R. at 443). The CT showed a mild aneurysmal
9
“An abdominal aortic aneurysm occurs when an area of the aorta becomes very large or balloons out.” PUBMED
HEALTH http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001215/ (last visited Jul. 29, 2014).
5
dilation of the brachiocephalic artery10 and a mild aneurysmal dilation of the right common iliac
artery. 11 (R. at 443-445). Plaintiff’s doctors plan to continue to monitor the size of the
aneurysms, but in the meantime, she was prescribed metoprolol to regulate her heart rate. (R. at
65-66).
2. Ear Problems
Plaintiff was diagnosed with acute infection otitis externa and chronic bilateral otitis
externa (“swimmer’s ear”), which cause ear pain, minor loss of hearing, itchiness, drainage,
infection, dizziness, and MRSA boils.12 (R. at 254). Plaintiff’s ear problems began in June 2008
after contracting swimmer’s ear at her daughter’s pool party. (R. at 88). Since the pool party,
Plaintiff’s chronic ear problems have affected her everyday life by way of requiring daily pain
management and preventing her from completing her associate’s degree. (R. at 56, 83). Plaintiff
had to miss numerous classes at Sanford-Brown Institute because of pain and doctor’s visits to
acquire antibiotics for episodes of boils. (R. at 83-86).
Plaintiff has been treated in the emergency room for her ear pain and drainage. (R. at 8586). She was admitted to hospitals on the following occasions: Providence Hospital from June 22
through June 26, 2008; Passavant Hospital on December 7, 2008 and September 17, 2009; and
Butler Memorial Hospital on December 25, 2009. (R. at 288, 387, 413, 421). Hospital doctors
performed ear examinations with an otology binocular microscope, all of which produced normal
results, so Plaintiff was discharged with a prescription for antibiotics. (R. at 791, 798, 809, 815).
Dr. Mariann McElwain (“Dr. McElwain”) has been the primary doctor treating Plaintiff’s ear
10
The brachiocephalic artery is “a short artery that arises from the arch of the aorta and divides into the carotid and
subclavian arteries of the right side.” MERRIAM-WEBSTER DICTIONARY http://www.merriamwebster.com/medical/brachiocephalic%20artery (last visited Jul. 29, 2014).
11
A common iliac artery is “either of the large arteries supplying blood to the lower trunk and hind limbs and arising
by bifurcation of the aorta which in humans occurs at the level of the fourth lumbar vertebra to form one vessel for
each side of the body.” MERRIAM-WEBSTER DICTIONARY http://www.merriam-webster.com/medical/iliac+artery
(last visited Jul. 29, 2014).
12
A boil is an infection that affects groups of hair follicles and nearby skin tissue. Boils, PUBMED HEALTH,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002445/ (last visited Jul. 22, 2014).
6
problems from 2009-2011. (R. at 21, 455). Dr. McElwain routinely performed ear examinations
and provided treatment of Plaintiff, vis-à-vis antibiotics, ear plugs, and follow-up examinations.
(R. at 460). Dr. McElwain saw Plaintiff in her office on the following dates: January 2009 (R. at
455); February 2009 (R. at 460); May 2009 (R. at 466); September 2009 (R. at 470); three visits
in October 2009 (R. at 474, 478, 482); November 2009 (R. at 486); February 2010 (R. at 505);
July 2010 (R. at 513); August 2010 (R. at 517); January 2011 (R. at 789); July 2011 (R. at 782);
and August 2011 (R. at 776). According to Dr. McElwain’s records, Plaintiff’s visits to her
office have decreased in frequency over the years. (R. at 455-776). At the time of the ALJ
hearing, Plaintiff still had ear problems, and she was in the middle of treatment for an abscess
that needed to be lanced. (R. at 85). She continues to have flare-ups, sometimes three times per
month, during which she experiences tremendous head and ear pain that leave her unable to
function. (R. at 83-84).
3. Lung Disease
In November 2010, Plaintiff started seeing Dr. David Rice for obstructive sleep apnea
and shortness of breath from activities such as walking up steps. (R. at 275). Dr. Rice examined
an abnormal CT scan and diagnosed Plaintiff with probable emphysema.13 (R. at 726). He was
unsure of the exact diagnosis and needed more testing. (R. at 89, 728). Because of Plaintiff’s
shortness of breath and emphysema, Dr. Rice strongly recommended that she quit smoking. (R.
at 728). Plaintiff had smoked approximately half a pack of cigarettes per day for the last 19
years. (R. at 726). She attempted to quit on numerous occasions, but she claims that she officially
quit approximately two weeks before her September 2011 endovascular repair of her descending
thoracic aneurysm. (R. at 68-69, 726).
13
Emphysema is a “condition of the lung characterized by increase beyond the normal in the size of air spaces distal
to the terminal bronchiole, with destructive changes in their walls and reduction in their number.” STEDMAN’S
MEDICAL DICTIONARY 631 (28th ed. 2006).
7
Plaintiff’s brief argues that her serious side effects of chronic lung disease are “shortness
of breath and chest pain upon exertion.” (R. at 276). According to Plaintiff’s testimony, her
emphysema diagnosis does not cause chest pain or coughing, but she was prescribed an inhaler
to help with shortness of breath. (R. at 68, 728-729). She did not have chest pain or shortness of
breath during the following doctor’s visits: February 2009; August 2009; September 2009;
November 2009; January 2010; April 2010; July 2010; August 2010; and November 2010. (R. at
522-528, 609, 611, 613, 726). Plaintiff claims that her breathing troubles have worsened. (R. at
277). She further alleges that her breathing worsened after the endovascular repair of the
descending thoracic aneurysm. (R. at 68). She does not know if it is worse specifically from the
surgery or if it is a result of her COPD. (Id.).
Plaintiff’s obstructive sleep apnea has led to insomnia, which she alleges the ALJ failed
to mention or even classify as a severe impairment. (R. at 275). Plaintiff uses a Continuous
Positive Airway Pressure machine (“CPAP machine”) to help her sleep. (R. at 278). In August
2010, Plaintiff’s Self-Report states that she goes to bed at 12:00 a.m. and wakes up at 4:30 a.m.
(R. at 212). During his evaluation in November 2010, Plaintiff reported to Dr. Rice that she
sleeps early in the morning until noon and then takes naps throughout the day. (R. at 726). At the
ALJ hearing in December 2011, Plaintiff testified that she goes to bed every night at 3:30 a.m.
and wakes up at 6:30 a.m., and occasionally naps for a “couple of hours.” (R. at 94-95). Plaintiff
also takes Sonata14 and melatonin to help with her insomnia. (Id.).
B. Physical Health Treatment
Plaintiff has several other health conditions ranging from minor rashes to hypertension.
(R. at 20, 90-91). Since the amended onset date, Plaintiff has treated with many physicians,
14
Sonata (zaleplon) is a sedative that causes the body to relax. It is used to help people fall and stay asleep. Sonata,
http://www.drugs.com/sonata.html (last visited Jul. 22, 2014).
8
including: Dr. Monisha Medhi for diabetes mellitus and Hirsutism; 15 Dr. Mary Dillon for
primary care and hypertension;16 Dr. Sandeep Jain for palpitations; Dr. Philip Iozzi for primary
care; Dr. Robert Carr for gynecological visits; Dr. Aaron Grand and Dr. Marshall Balk for carpal
tunnel syndrome and shoulder pain; Dr. Sam Buffer and Dr. Ronald Pellegrini for cardiology;
Dr. Rhee, Dr. Cook, and Dr. Luke Marone for aneurysms; Dr. McElwain for ear disease; Dr.
Elisabeth Bergman for endocrinology and Hirsutism; Dr. Rice for emphysema and COPD;17 and
Dr. Gerald Streets for depression18 and ADHD.19 (R. at 20-22, 91, 248, 421, 610, 626, 726, 735,
1373).
After her hospitalization for lower back pain, Plaintiff claimed an amended disability
onset date of February 14, 2009. (R. at 15, 394). She has experienced lower back pain since
having surgery to repair her thoracic aortic aneurysm. (R. at 62, 92). She states that the pain is
due to the way she was laying on the operating table and that her back hurts when she is laying
down. (R. at 220). The pain shoots down her right leg and causes weakness in her leg, so she
occasionally uses a cane to help her balance. (R. at 93-94, 396).
Dr. Dillon was Plaintiff’s primary care physician from 2009-2011 for ailments including
otitis media,20 sinusitis,21 cellulitis,22 a small cyst, and a minor rash. (R. at 20-21). Dr. Dillon’s
15
Hirsutism is the presence of excess body or facial terminal (coarse) hair growth in females in a male-like pattern.
It affects 5–15 percent of women and is an important sign of underlying androgen excess. PUBMED HEALTH,
http://www.ncbi.nlm.nih.gov/pubmed/19567450 (last visited Jul. 22, 2014).
16
Hypertension is “high blood pressure; transitory or sustained elevation of systematic arterial blood pressure to a
level likely to induce cardiovascular damage or other adverse consequences.” STEDMAN’S MEDICAL DICTIONARY
927 (28th ed. 2006).
17
Chronic obstructive pulmonary disease (“COPD”) is the “general term used for those diseases with permanent or
temporary narrowing of small bronchi, in which forced expiratory flow is slowed, especially when no etiologic or
other more specific term can be applied.” STEDMAN’S MEDICAL DICTIONARY 554 (28th ed. 2006).
18
Depression is a “mental state or chronic mental disorder characterized by feelings of sadness, loneliness, despair,
low self-esteem, and self-reproach; accompanying signs including psychomotor retardation, withdrawal from social
contact, and vegetative states such as loss of appetite and insomnia.” STEDMAN’S MEDICAL DICTIONARY 515 (28th
ed. 2006).
19
Attention deficit hyperactivity disorder (“ADHD”) is a “behavioral disorder manifested by developmentally
inappropriate degrees of inattentiveness, impulsiveness, and hyperactivity.” STEDMAN’S MEDICAL DICTIONARY 568
(28th ed. 2006).
20
Otitis media is “an inflammation of the middle ear.” STEDMAN’S MEDICAL DICTIONARY 1394 (28th ed. 2006).
9
notes state that Plaintiff was well-nourished and well-oriented. (R. at 522). Moreover, Dr. Dillon
noted that Plaintiff was a “pleasant female in no acute distress.” (R. at 526). In September 2009,
Dr. Dillon performed an examination, and he concluded as follows: “review of [Plaintiff’s]
systems [was] negative for fatigue. It [was] negative for skin rash, negative for chest pain,
shortness of breath, abdominal pain or urinary symptoms.” (R. at 528). Plaintiff told Dr. Jain that
she experienced heart palpitations with increasing frequency over the last year. (R. at 626). She
saw Dr. Jain in September 2010 to figure out the cause of her daily palpitations, and he opined
that the palpitations could be related to “episodes of anxiety.” (R. at 610, 626, 627).
Dr. Carr treated Plaintiff for gynecological care including polycystic ovary syndrome and
recurring yeast infections.23 (R. at 15, 90, 316). Plaintiff was hospitalized in September 2008 to
remove a left tubo-ovarian abscess, and was discharged in stable condition. (R. at 352). She was
hospitalized in August 2010 for a yeast infection. (R. at 891).
Dr. Grand treated Plaintiff for right shoulder pain and bilateral carpal tunnel syndrome.
(R. at 69, 91). Plaintiff’s carpal tunnel syndrome caused pain in her wrists especially at night
before she went to bed. (R. at 220). Her hands sometimes would go numb, and she would drop
what she was holding. (R. at 69). Plaintiff elected to have carpal tunnel repair surgery on both of
her wrists.24 (R. at 69, 441). She had to take a leave of absence from Sanford-Brown Institute to
have the second carpal tunnel release surgery. (R. at 50-51). Since having the surgery, Plaintiff
does not have pain in her wrists and does not have trouble doing simple activities, such as getting
dressed or eating, but she does have some residual tingling. (R. at 68-69).
21
Sinusitis is an “inflammation of the mucous membrane of any sinus, especially the paranasal.” STEDMAN’S
MEDICAL DICTIONARY 1777 (28th ed. 2006).
22
Cellulitis is an “inflammation of subcutaneous, loose connective tissue.” STEDMAN’S MEDICAL DICTIONARY 343
(28th ed. 2006).
23
A vaginal yeast infection is “an infection of the vagina “most commonly due to the fungus Candida albicans.”
PUBMED HEALTH http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002480/ (last visited Jul. 29, 2014).
24
Dr. Grand did not perform surgery on her shoulder, because her rotator cuff was likely only strained. (R. at 91).
10
In August 2010, Dr. Bergman saw Plaintiff for possible Cushing’s disease due to
Plaintiff’s visible hirsutism. (R. at 268, 610). She diagnosed Plaintiff with uncontrolled
hypertension, obesity, impaired glucose tolerance, hirsutism, obstructive sleep apnea, and goiter.
(R. at 21, 596). Plaintiff’s medications were adjusted accordingly. (Id.) Dr. Bergman saw
Plaintiff for follow-up visits through October 2011, during which she re-examined Plaintiff and
ordered further testing. (R. at 670). Plaintiff’s diagnosed hypertension affects her daily living by
making her dizzy and nauseas. (R. at 70). Plaintiff is unsure if the nausea is from her
hypertension, a combination of different medications, or her diabetes. (R. at 70-71). In a typical
month, Plaintiff has at least one episode of nausea that escalates to the point of vomiting. (Id.)
Furthermore, Plaintiff testified during the ALJ hearing that she lost 40 pounds within the past six
months. (R. at 45).
As of September 2011, Plaintiff took the following medications: Strattera,
25
Chlorhexidine, Advair,26 Lisinopril,27 Metformin,28 Metoprolol,29 Spironolactone, Docusate, and
Oxycodone.30 (R. at 1048-51).
C. Mental Health Treatment
Plaintiff sees Dr. Streets, a therapist, at Family Psychological Services for anxiety,
depression, and ADHD. (R. at 73, 251, 1409). Plaintiff avers that she has been depressed ever
since her parents and brother died, but lately she is more depressed due to the deterioration of her
25
Strattera (atomoxetine) affects chemicals in the brain and nerves that contribute to hyperactivity and impulse
control. Strattera, http://www.drugs.com/strattera.html (last visited Jul. 22, 2014).
26
Advair is a combination of two medicines that are used to help control the symptoms of asthma and improve
breathing. Advair, PUBMED HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010369/ (last visited Jul.
22, 2014).
27
Lisinopril is used alone or together with other medicines to treat high blood pressure (hypertension). Lisinopril,
PUBMED HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010968/ (last visited Jul. 22, 2014).
28
Metformin is used to treat high blood sugar levels that are caused by a type of diabetes mellitus or type-2 diabetes.
PUBMED HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0011121/ (last visited Jul. 22, 2014).
29
Metoprolol is used alone or together with other medicines to treat high blood pressure (hypertension). Metoprolol,
PUBMED HEALTH, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0001180/ (last visited Jul. 22, 2014).
30
Oxycodone is used to relieve moderate to severe pain. Oxycodone, PUBMED HEALTH,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0001326/ (last visited Jul. 22, 2014).
11
health. (R. at 73). Dr. Streets evaluated Plaintiff and determined that her Global Assessment
Functioning31 score was 55 in February 2011; 57 in April 2011; 59 in August 2011; and 55 and
57 in November 2011. (R. at 1409-11, 1413, 1418). Dr. Streets examined Plaintiff in November
2011 and opined that she seemed anxious, overwhelmed, and irritable. (R. at 1409). Plaintiff
testified that weekly therapy has not helped her anger issues, but she continues to improve. (R. at
73). Dr. Streets also prescribed Plaintiff the medication Strattera for ADHD to help her focus in
school. (R. at 73-74).
D. Testimony
Plaintiff testified at the ALJ hearing that health conditions including dizziness and pain
affect her everyday life. (R. at 58). Her pain occurs approximately once or twice per month and
lasts for a week at a time. (R. at 59). She takes Oxycontin or Vicodin to cope with the pain,
typically four times per week and sometimes every night. (R. at 59, 62). On an average day,
Plaintiff would attempt to do household chores, but often her back pain or headaches would
prevent her from doing same. (R. at 74). As indicated earlier, her back pain began after the
doctors performed the aneurysm surgery, during which she was on her back for approximately
ten hours. (R. at 61). Plaintiff’s partner helps around the house with almost everything, including
cleaning, cooking, and taking care of her children. (R. at 75). Plaintiff does not go out grocery
shopping alone, because she does not have access to a car. (R. at 76). Moreover, Plaintiff’s
dizziness is so debilitating that she needs help getting out of the shower because she has fallen in
the past. (R. at 66). She also has nausea to the point that she “just throw[s] up for no apparent
reason.” (R. at 70). Furthermore, she testified that the CPAP machine works well when she does
sleep, but she only sleeps a few hours per night. (R. at 72).
31
The Global Assessment of Functioning Scale (“GAF”) assesses whether an individual’s psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed. 2000).
12
Socially, Plaintiff does not have many friends in Western Pennsylvania, but does not
report any problems getting along with others. (R. at 77). Plaintiff used to be able to be around
large crowds, for example she would attend concerts. (Id.). However, in recent years she
becomes “antsy” and “nervous,” so she now avoids large crowds. (Id.). At the time of the ALJ
hearing, Plaintiff was planning her wedding to her partner. (R. at 78).
E. Functional Capacity Assessments
In April 2012, Dr. Mohammad Malik performed a consultative examination of Plaintiff,
and he reported a generally normal physical examination and a normal gait. (R. at 21, 1448). Dr.
Malik’s clinical impressions were that Plaintiff has diabetes mellitus, polycystic ovary syndrome,
hypertension, and possible Marfan syndrome with tendency for aneurysmal dilation. (R. at
1449). During the course of evaluation, Dr. Malik perceived Plaintiff to have been appropriately
dressed, answered questions appropriately, and appeared normal. (Id.). She did not appear
suicidal or anxious. (Id.). However, Dr. Ann Quimby, disability examiner, opined that Plaintiff
could not perform past work with her primary diagnosis of carpal tunnel syndrome and a
secondary diagnosis of an aortic aneurysm. (R. at 112-114).
F. Administrative Hearing
At the administrative hearing, Plaintiff testified that she lived with her three children who
at the time were 19, 14, and 11 years old. (R. at 47). She last worked in April 2008 at Holy Cross
Hospital in Silver Spring, Maryland as a tech assistant. (R. at 52). She was terminated due to
budget cuts. (R. at 54). She has been looking for jobs in retail that would permit her to move
around and would not involve too much lifting. (R. at 47). Plaintiff had to withdraw from
Sanford-Brown Institute because of too many absences associated with doctors’ appointments
and surgeries. (R. at 48-52). Plaintiff testified that she has battled depression since her parents
and brother died, and started attending sessions at Family Psychological. (R. at 73). She attends
13
therapy every week and was prescribed Strattera for ADHD. (R. at 73-74). Her mental health is
slowly improving with the continued therapy. (R. at 73).
Relative to her daily activities, Plaintiff testified that her ability to maintain attention and
complete household chores varies. (R. at 74). For example, some days she is able to sweep or
mop, but other days her back pain and headaches prevent her from doing same. (Id.). Plaintiff
does not do the majority of the cooking and cleaning in the house, due to her pain and nausea.
(R. at 74-76). Instead, Plaintiff’s partner helps to take care of Plaintiff’s children and the house.
(Id.).
After the ALJ questioned Plaintiff, Ms. Erie examined her. (R. at 79). In response to Ms.
Erie’s questions, Plaintiff testified that she missed school and was forced to withdraw because
she was in a “tremendous” amount of ear and head pain that required treatment. (R. at 83).
Moreover, Plaintiff was easily exhausted from walking up the stairs, and has trouble breathing
due to her lung problems. (R. at 90-91). She has chronic lower back pain that extends down her
right leg and often requires her to use a cane for balance. (R. at 93). This lower back pain was the
cause of her hospitalization in February 2009, which is the amended onset date of the DIB and
SSI claims. (R. at 95-96). Furthermore, Plaintiff testified that she only sleeps three hours per
night. (R. at 94).
After Plaintiff’s testimony concluded, the ALJ examined the vocational expert, Mr.
William Reed. (R. at 96). The vocational expert testified that, based upon his review of
Plaintiff’s record and her testimony at the hearing, her work history includes five different jobs:
(1) child care worker, which is unskilled work and medium exertional level; (2) shipper/driver,
which is unskilled work and heavy exertional level; (3) child development teacher, which is
semi-skilled work and light to medium in exertional level; (4) part-time in-house transporter for a
hospital, which is unskilled work and heavy exertional level; and (5) radiology technician in a
14
hospital, which is semi-skilled and medium exertional level. (R. at 97-98). The ALJ asked the
vocational expert about a hypothetical individual with Plaintiff’s age, education, and work
experience with the following restrictions: lift and carry 10 pounds occasionally; stand or walk
for two hours of an eight-hour workday; sit for six hours of an eight-hour workday; sit or stand
option every 30 minutes; never climb ladders, ropes, or scaffolds; occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; occasionally reach overhead with the bilateral
upper extremities; must avoid concentrated exposures to fumes, odors, dust, gases, and poor
ventilation; and avoid all exposure to hazards such as heights and moving machinery. (R. at 98).
The vocational expert testified that this hypothetical individual would not be able to perform any
of Plaintiff’s past relevant work. (R. at 99). However, Mr. Reed testified that this hypothetical
individual would be able to perform a number of jobs in the national economy including work as
a light, unskilled mail clerk, excluding the U.S. Postal Service, and for which there were 137,000
jobs; sedentary, unskilled surveillance system monitor, for which there were 95,000 jobs; and, a
sedentary assembler, such as a lens inserter, for which there were 280,000 jobs. (R. at 99-100). If
Plaintiff were off-task more than twenty percent of the workday, or she missed more than two
days of work per month, Dr. Reed testified that no work would be available. (Id.).
G. Administrative Decision
Pursuant to the Act, health problems must: (1) keep you from doing any kind of
substantial work, and (2) last, or be expected to last, for at least 12 months in a row, or result in
death. (R. at 116). Substantial work is considered mental or physical work that a person is paid to
do, and usually requires a person to earn over $1,000.00 per month, after deducting allowable
amounts. (Id.). The Administrative Law Judge ruled that Plaintiff could not complete her past
work, but the severity of her condition did not preclude her from all work. (R. at 115-16). The
15
medical impairments do not keep her from doing work that is less physically demanding. (R. at
116).
IV.
STANDARD OF REVIEW
To be eligible for Social Security benefits under the Act, a claimant must demonstrate to
the Commissioner that he or she cannot engage in substantial gainful activity because of a
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of at least twelve months.
42 U.S.C. § 423(d)(1)(A); Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004); Brewster v.
Heckler, 786 F.2d 581, 583 (3d Cir. 1986). When reviewing a claim, the Commissioner must
utilize a five-step sequential analysis to evaluate whether a claimant has met the requirements for
disability. 20 C.F.R. §§ 404.1520, 416.920. The Commissioner must determine: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a
severe impairment or a combination of impairments that is severe; (3) whether the medical
evidence of the claimant’s impairment or combination of impairments meets or equals the
criteria listed in 20 C.F.R., Pt. 404, Subpt. P, App’x 1; (4) whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Cooper v. Comm’r, 563 F.
App’x 904, 910 (3d Cir. 2014); Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005);
Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is determined to be unable to
resume previous employment, the burden shifts to the Commissioner at Step Five to prove that,
given 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. Doak v.
Heckler, 790 F. 2d 26, 28 (3d Cir. 1986).
16
Judicial review of the Commissioner’s final decisions on disability claims is provided by
statute and is plenary as to all legal issues. 42 U.S.C. §§ 405(g), 32 1383(c)(3); 33 Hagans v.
Comm’r, 694 F.3d 287, 292 (3d. Cir. 2012) (citing Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d
429, 431 (3d Cir. 1999)). Section 405(g) permits a district court to review the transcripts and
records upon which a determination of the Commissioner is based; the court will review the
record as a whole. See 5 U.S.C. §706. The district court must then determine whether substantial
evidence existed in the record to support the Commissioner’s findings of fact. Burns v. Barnhart,
312 F. 3d 113, 118 (3d Cir. 2002). Substantial evidence is “‘more than a mere scintilla’; it means
‘such relevant evidence as a reasonable mind might accept as adequate’” to support a conclusion.
Hagans, 694 F.3d at 292 (quoting Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)); see also
Horst v. Comm’r, 551 F. App’x 41, 45 (3d Cir. 2014).
A district court can neither conduct a de novo review of the Commissioner’s decision nor
re-weigh the evidence of record; the Court can only judge the propriety of the decision in
reference to the grounds invoked by the Commissioner when the decision was rendered. S.E.C. v.
Chenery Corp., 332 U.S. 194, 196-97 (1947); Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa.
1998). The Court will not affirm a determination by substituting what it considers to be a proper
basis. Chenery, 332 U.S. at 196-97. Further, “even where this court acting de novo might have
reached a different conclusion . . . so long as the agency’s factfinding is supported by substantial
evidence, reviewing courts lack power to reverse either those findings or the reasonable
32
Section 405(g) provides in pertinent part:
Any individual, after any final decision of the [Commissioner] made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain a review of such decision by a
civil action ... brought in the district court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business.
42 U.S.C. § 405(g).
33
Section 1383(c)(3) provides in pertinent part:
The final determination of the Commissioner of Social Security after a hearing under paragraph
(1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent
as the Commissioner's final determinations under section 405 of this title.
42 U.S.C. § 1383(c)(3).
17
regulatory interpretations that an agency manifests in the course of making such findings.”
Monsour Medical Center v. Heckler, 806 F. 2d 1185, 1190-91 (3d. Cir. 1986).
V.
DISCUSSION
In her Motion for Summary Judgment, Plaintiff asserts six arguments. (Docket No. 11).
First, she argues that the ALJ did not address or evaluate her impairments of COPD and
emphysema and failed to find those impairments “severe.” (Id. at 18-24). Second, she contends
that the ALJ erred in not determining whether the combination of Plaintiff’s aneurysms, Marfan
syndrome and obesity meets or equals an impairment in Appendix 1. (Id. at 24-28). Third, she
avers that the ALJ erred in finding that the Plaintiff’s statements were not credible. (Id. at 28-33).
Fourth, she claims that the ALJ did not consider all of Plaintiff’s impairments at Step Five and
failed to include the impairments in the hypothetical posed to the VE. (Id. at 33-34). Fifth, she
argues that the ALJ erred in determining that Plaintiff has the RFC to frequently handle and
finger. (Id. at 34-36). Sixth, she contends that the ALJ’s finding that Plaintiff could perform a
significant number of jobs in the national economy was based on a flawed hypothetical. (Id. at
36-41).
Defendant first argues that the ALJ did not commit an error at Step Two and adequately
considered Plaintiff’s breathing conditions and thoracic aortic aneurysm. (Docket No. 15 at 1516). Second, Defendant avers that the ALJ adequately accounted for any restrictions due to
Plaintiff’s breathing conditions. (Id. at 16-18). Third, Defendant claims that the ALJ correctly
characterized Plaintiff’s thoracic aneurysm. (Id. at 18-19). Fourth, Defendant contends that the
ALJ adequately addressed Plaintiff’s impairments at Step Three. (Id. at 19-21). Fifth, Defendant
asserts that substantial evidence supports the ALJ’s determination that Plaintiff’s complaints of
completely debilitating limitations lacked credibility. (Id. at 21-26). Sixth, Defendant avers that
substantial evidence supports the ALJ’s RFC determination that Plaintiff could frequently handle
18
and finger. (Id. at 26-27). Lastly, Defendant submits that the VE testimony provides substantial
evidence that there are a significant number of jobs that Plaintiff can perform. (Id. at 27-30). The
Court will address each of these arguments, in turn.
A. COPD, Emphysema, and Thoracic Aortic Aneurysms
Plaintiff contends that the ALJ did not consider, evaluate, or mention Plaintiff’s
impairments of COPD and/or emphysema, and therefore did not determine their “severity.”
(Docket No. 11 at 18). In support thereof, Plaintiff avers that she uses her inhaler multiple times
a day, that her breathing and chest pain upon exertion are worsening, and that cold air, hot air,
and humid temperatures make her breathing problems worse. (Id. at 19). Plaintiff testified that
even though she quit smoking prior to her thoracic aortic aneurysm surgery, her breathing
problems have worsened. (Id. at 20). She also claims that her treatment history establishes that
her impairments have more than a minimal impact on her ability to do basic work activities.
(Docket No. 11 at 20). Plaintiff avers that the ALJ mischaracterized the severity of the
impairment of her aorta aneurysms and the residual effects of the thoracic aortic repair. (Id. at
22-23). Further, Plaintiff alleges that her objective medical evidence, treatment history, and
statements are substantial competent evidence to support a finding that her thoracic aortic
aneurysms are severe impairments. (Id. at 23-14).
In response, Defendant alleges that the ALJ correctly described Plaintiff’s condition,
specifically that her thoracic aneurysm was surgically repaired and that the ALJ considered all of
her medical records before and after surgery. (R. at 21-23, 981-82). Moreover, Plaintiff’s only
restrictions after surgery were “[n]o heavy lifting, excessive bending or stooping for a week.”(R.
at 928). The Defendant submits that the ALJ considered all impairments at later steps, including
her breathing condition and thoracic aneurysm, and therefore he did not err in his Step Two
analysis or in formulating Plaintiff’s RFC. (R. at 15-27). Further, the Defendant alleges that the
19
ALJ specifically discussed Plaintiff’s COPD and emphysema diagnoses and adequately
accounted for any restrictions resulting from same by restricting Plaintiff to no concentrated
exposure to fumes, odors, dusts, gases, and poor ventilation. (R. at 19, 58-62).
As previously held by this Court, 34 at Step Two, the ALJ’s analysis in determining
whether or not an alleged impairment is “severe,” is no more than a “de minimis screening
device to dispose of groundless claims”). Magwood v. Comm’r, 417 F. App'x 130, 132 (3d Cir.
2008) (quoting Newell v. Comm’r, 347 F.3d 541, 546 (3d Cir. 2003)). Step Two merely serves a
minimal gate-keeping function, and Plaintiff's burden to demonstrate a severe impairment is not
an exacting one. McCrea v. Comm’r, 370 F.3d 357, 360 (3d Cir. 2004) (citing S.S.R. 85–28,
1985 WL 56856 at *3). At Step Two, reasonable doubts regarding the evidence should be
construed in the light most favorable to the claimant. Newell, 347 F.3d at 547. Further, the use of
Step Two as a vehicle for the denial of benefits should, “raise a judicial eyebrow,” and deserves
“close scrutiny.” McCrea, 370 F.3d at 360–61. However, if the ALJ does not deny benefits at
Step Two, but instead proceeds to analyze the claims under the remaining steps, a remand
generally is not warranted due to the ALJ's failure to describe an alleged impairment as “severe”
at Step Two, unless such error undermines the ALJ's analysis of the remaining steps and/or the
ultimate disability determination. See Salles v. Comm’r., 229 F. App'x 140, 145 n. 2 (3d Cir.
2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)); see also Niglio, 2013
WL 2896875, at *8. Plaintiff's testimony before the ALJ does not compel a contrary result, and
credibility determinations are in the province of the ALJ. Van Horn v. Schweiker, 717 F.2d 871,
873 (3d Cir. 1983).
The Court agrees with Defendant that the ALJ provided sufficient discussion and analysis
of Plaintiff’s breathing and vascular diagnoses and properly considered all impairments in his
34
Donley v. Colvin, 2013 WL 6498261 (W.D. Pa. Dec. 11, 2013); Niglio v. Colvin, 2013 WL 2896875, (W.D.Pa.
June 13, 2013).
20
formulation of Plaintiff’s RFC. He included the following restriction: “She must avoid
concentrated exposure to fumes, odors, dusts, gases and poor ventilation.” (R. at 19). Moreover,
there is substantial evidence in the record to conclude that her thoracic aneurysm was repaired
following her surgery. (R. at 22, 23, 928, 981-82, 1086, 1373, 1386). There were no irregularities
with her heart, and no evidence of peri-graft flow, dissection, or chest adenopathy. (R. at 23,
1086, 1386). As Defendant notes, following this surgery, her only restriction relative to this
condition was the following minimal limitation: “[no] heavy lifting, excessive bending or
stooping for a week.” (R. at 928). In consideration of the above, the Court holds that the ALJ
adequately considered all of Plaintiff’s impairments in the formulation of her RFC. Nonetheless,
any failure to include those impairments within the list of severe impairments at Step Two is
inconsequential, as the ALJ continued his analysis past Step Two.
B. Aneurysms, Marfan Syndrome, and Obesity
Plaintiff contends that the ALJ failed to determine whether the combination of the
impairments of her thoracic and abdominal aortic aneurysms, Marfan syndrome, and/or obesity
meets or equals one of the listed impairments in Appendix 1. (Docket No. 11 at 27). Plaintiff also
argues that the ALJ failed to assess the effects of obesity upon her ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis, i.e. an eight-hour work
day five days per week, or an equivalent work schedule. (SSR 02-1p); (Docket No. 11 at 27). In
support thereof, she avers that her absence and withdrawal from her anesthesia technology
program is sufficient to conclude that her impairments or combination of impairments equals a
listed impairment or that she did not have the physical or mental ability to sustain work
activities. (Id. at 27-28). Defendant claims that the ALJ adequately discussed his consideration of
the Listing of Impairments and the relevant medical evidence in his decision. (Docket No. 15 at
19).
21
It is well-established that the purpose of the Listing is to describe impairments “severe
enough to prevent a person from doing any gainful activity,” regardless of age, education or
work experience. 20 C.F.R. § 416.925(a); Gattus v. Colvin, 2014 WL 582261 at *7 (M.D. Pa.
Feb. 14, 2014) (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). It is Plaintiff’s burden to
prove that her impairment meets or equals a listing. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5
(1987); Ortega v. Comm’r, 232 F. App'x 194, 196 (3d Cir. 2007). Additionally, Plaintiff bears
the burden of presenting medical findings equivalent in severity to all the criteria for the one
most similar impairment to qualify for benefits by showing that an impairment, or combination
of impairments, is equivalent to a listed impairment. 20 C.F.R. § 416.920(d); Gattus, at *7 (citing
Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). “An impairment, no matter how severe, that meets
or equals only some of the criteria for a listed impairment is not sufficient.” Gattus, at *7 (citing
Sullivan, at 531). An ALJ should rule against Plaintiff if she does not show that she has met all
of the listed criteria at Step Three. Id. (citing Ortega, at 196 (denying disability finding at Step
Three based upon diabetes)); Small v. Comm’r, 60 F. App'x 919, 922 (3d Cir. 2003). In Burnett
v. Commissioner of Social Security Administration, the Third Circuit required “the ALJ to set
forth the reasons for his decision,” and held that the ALJ's bare conclusory statement that an
impairment did not match, or is not equivalent to, a listed impairment was insufficient. 220 F.3d
112, 119–20 (3d Cir. 2000). The Third Circuit further noted that “Burnett does not require the
ALJ to use particular language or adhere to a particular format in conducting his analysis.
Rather, the function of Burnett is to ensure that there is sufficient development of the record and
explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d.
Cir. 2004) (citing Burnett at 120).
Moreover, the Third Circuit adopted a “more flexible approach” at Step Three. Sargent v.
Astrue, 2011 WL 3844192 (W.D. Pa. Aug. 30, 2011) aff'd sub nom. Sargent v. Comm’r, 476 F.
22
App'x 977 (3d Cir. 2012) (citing Scatorchia v. Comm'r, 137 F.App'x 468, 470–71 (3d Cir.
2005)); see also Scuderi v. Comm’r, 302 Fed. App'x 88, 90 (3d Cir. 2008) (“[A]n ALJ need not
specifically mention any of the listed impairments in order to make a judicially reviewable
finding, provided that the ALJ's decision clearly analyzes and evaluates the relevant medical
evidence as it relates to the Listing requirements.”). The Third Circuit found that the ALJ
“satisfied this standard by clearly evaluating the available medical evidence in the record and
then setting forth that evaluation in an opinion, even where the ALJ did not identify or analyze
the most relevant Listing” rather than requiring the ALJ to identify appropriate Listings based on
the claimant's alleged impairments. Id. (citing Scatorchia, at 470-71).
Here, relative to her aneurysms, the ALJ explicitly found that Plaintiff did not meet the
criteria of Listing 4.10, which states, “Aneurysm of aorta or major branches, due to any cause
(e.g., atherosclerosis, cystic medial necrosis, Marfan syndrome, trauma), demonstrated by
appropriate medically acceptable imaging, with dissection not controlled by prescribed treatment
(see 4.00H6).” 20 C.F.R. § 404, Subpart P., App. 1, § 4.10; (R. at 18). Plaintiff underwent
repeated testing, including CT scans and ultrasounds, and this objective medical evidence shows
no evidence of dissection. (R. at 21-22, 623-35, 944-53). Her treatment controlled her condition,
as evidenced by her successful aneurysm surgery. (R. at 981-82). Plaintiff did not present
medical findings sufficient to demonstrate that her impairment met all of the listed criteria at
Step Three. Moreover, the ALJ identified the medical evidence and analyzed same in making his
determination. In light of the above, there is substantial objective medical evidence which
supports the ALJ’s finding that Plaintiff’s conditions did not meet the criteria of Listing 4.10.
C. Plaintiff’s Credibility
Plaintiff contends that the ALJ erred in his determination that her statements concerning
the intensity, persistence, and limiting effects of her symptoms are not credible to the extent that
23
they are inconsistent with the RFC. (Docket No. 11 at 28). Additionally, Plaintiff argues that the
ALJ improperly described her treatment as “conservative.” (Id. at 29). Further, she claims that
the ALJ’s finding that her statements are not credible is not supported by substantial competent
evidence. (Id. at 33). Defendant avers that Plaintiff’s claims relative to her limitations are
inconsistent with her treatment, her daily activities, the medical opinions, and the objective
testing and examinations in the record. (Docket No. 15 at 22–26).
Credibility determinations pertaining to a claimant's testimony regarding her pain and
limitations fall within the ALJ's province. Coryea v. Comm’r., 2008 WL 4279809 (W.D. Pa.
Sept. 16, 2008) citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). After the ALJ
has determined that a medical impairment exists that could reasonably cause Plaintiff's alleged
symptoms, the ALJ must “evaluate the intensity and persistence of the pain” and the extent to
which Plaintiff “is accurately stating the degree of pain or the extent to which he or she is
disabled by it.” Id. (citing Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999)). A credibility
determination made by the ALJ is entitled to great deference by the district court. Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). However, this determination must:
contain specific reasons for the finding on credibility, supported by the evidence
in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to
the individual's statements and the reasons for that weight.
SSR 96-7; see also Lang v. Barnhart, 2006 WL 3858579, at *10 (W.D.Pa. Dec. 6, 2006). Where
a claimant’s testimony is reasonably supported by medical evidence, the finder of fact may not
discount the testimony without contrary medical evidence. Williams v. Sullivan, 970 F.2d 1178,
1184-85 (3d Cir. 1992). However, “[i]nconsistencies 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, 274 F. App'x. 159, 164 (3d Cir. 2008).
Here, in comparing the Plaintiff's testimony with the objective medical evidence, the ALJ
24
found that while her medically determinable impairments reasonably could be expected to
produce the alleged symptoms, her statements concerning the intensity, persistence, and limiting
effects of her symptoms were not credible to the extent that they were inconsistent with the RFC
assessment. (R. at 20). The ALJ chose not to credit Plaintiff's allegations of disability for
multiple reasons listed in his opinion, including: (1) these allegations were inconsistent with
Plaintiff's medical record, (Id.); (2) Plaintiff received conservative treatment from her primary
care providers including Dr. Mary Dillon, (Id.); (3) Plaintiff's treatment from Dr. Bergman, Dr.
McElwain, and Dr. Malik and her treatment at the emergency room do not demonstrate disability
findings, (R. at 22); (4) her cardiac condition improved after surgery and is not disabling, (Id.);
(5) she admitted to a marked improvement in her breathing with medication at a follow-up with
Dr. Rice, (Id.); (6) the medical record indicates that her CTS improved with treatment, (R. at 2233); (7) objective testing is unsupportive of a finding of disability as it fails to show debilitating
impairments, (R. at 23); (8) relative to her mental health, Plaintiff treated conservatively with
Family Psychological Associates and has not required formal impatient mental health treatment,
(R. at 25); and (9) she admitted to planning a wedding and has a relatively high GAF score with
treatment, despite her allegations that she has difficulty focusing and paying attention, (Id.).
These reasons, as explained by the ALJ in the body of his opinion, demonstrate that there is
substantial evidence that Plaintiff's subjective complaints were not fully credible.
Moreover, under the applicable regulations, a plaintiff's daily activities are a valid factor
to be considered by the ALJ when conducting an inquiry as to the reliability of the claimant's
subjective complaints. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 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 not fully credible. See Burns v.
Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002). Even “limitations that are medically supported
25
but are also contradicted by other evidence in the record may or may not be found credible-the
ALJ can choose to credit portions of the existing evidence.” Rutherford v. Barnhart, 399 F.3d
546, 554 (3d Cir. 2005); See Russo v. Astrue, 421 F. App'x 184, 190 (3d Cir. 2011) (finding no
error when the ALJ discredited testimony by the claimant which was inconsistent with her daily
activities).
Here, the ALJ determined that Plaintiff's disability allegations are inconsistent with her
daily activities of living. (R. at 26). The ALJ noted that Plaintiff reported in the Function Report
that she takes care of her children, prepares meals, completes household chores with help, is able
to manage her finances, reads, plays board games, listens to music, uses a computer, finishes
what she starts, and is independent in personal care. (R. at 25, 218). Such evidence further
bolsters the ALJ's credibility determination.
Finally, Plaintiff argues that the ALJ erred by failing to articulate the reasons for his
credibility findings. (Docket No. 11 at 32). Plaintiff contends that the ALJ failed to accurately
relate the degree of her symptoms or the extent to which they are disabling, and the ALJ did not
make clear the weight given to Plaintiff’s complaints and the reasons for same. (Id. at 32-33).
Here, the ALJ's determination of Plaintiff's credibility contains specific reasons for this finding,
which are supported by the evidence in the case record. The ALJ provides thorough analysis,
taking into account Plaintiff's daily activities and medical records provided by Dr. Dillon, Dr.
McElwain, Dr. Bergman, Dr. Malik, Dr. Pellegrini, Dr. Cook, Dr. Rice, Dr. Marone, Dr. Rhee,
Dr. Grand, Dr. Balk, her objective testing records, and her ER records. (R. at 20-23). The ALJ
cited and explained why this evidence is inconsistent with a finding of debilitating pain and
unsupportive of a finding of disability. (R. at 20-23). There is no indication in the record that the
ALJ failed to consider Plaintiff's subjective complaints, despite not being fully confirmed by the
medical evidence. The ALJ’s opinion sufficiently explained why he found Plaintiff's testimony
26
to be not fully credible. After reviewing the ALJ's analysis against the record, the Court finds
that the ALJ did not err in his credibility determination, and his determination is supported by
substantial evidence.
D. Plaintiff’s Ability to Handle and Finger
Plaintiff contends that the medical record supports her testimony that during the relevant
period of her disability, she is unable to frequently handle and finger. In support of same, she
cites her testimony that she continues to have problems with numbness and tingling, and she
drops things. (Docket No. 11 at 36). The ALJ found that Plaintiff has the RFC to frequently
handle and finger and has the severe impairment of bilateral CTS with carpal tunnel release. (R.
at 15, 19). In making his finding, the ALJ considered all symptoms and the extent to which those
systems could reasonably be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. (R. at 19). He also considered opinion evidence in accordance with the requirements of 20
CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (R. at 19).
Here, there is substantial evidence that Plaintiff can perform frequent fingering and
handling. The ALJ noted that the medical evidence demonstrates that her CTS improved with
treatment. Specifically, eighteen days after her right carpal tunnel release, she reported to Dr.
Balk that her numbness was much better and her nocturnal symptoms completely resolved on
February 8, 2010. (R. at 22, 551). Further, Dr. Balk determined that she was doing very well
after her right carpal tunnel release. (R. at 22, 551). For her left hand, she underwent carpal
tunnel release and was noted to be doing well with excellent active range of motion on December
15, 2010. (R. at 1429). The ALJ adequately considered Plaintiff’s severe impairment of CTS,
and he did not err in determining that she can perform frequent fingering and handling and that
her CTS is not disabling, as there is substantial evidence to support his findings.
27
E. Jobs in the National Economy
At Step Five, the ALJ must determine whether there are jobs existing in the national
economy in significant numbers that Plaintiff could perform in consideration of her age,
education, past work experience, and RFC. 20 C.F.R. §§ 404.1520(g), 404.1560(c). At the ALJ
hearing in this case, the ALJ asked the VE to assume that a hypothetical person with Plaintiff’s
age, education, and work experience: could lift and carry ten pounds occasionally; could stand or
walk for two hours of an eight-hour workday; could sit for six hours of an eight-hour workday;
requires a sit or stand option every 30 minutes; can never climb ladders, ropes or scaffolds, can
occasionally climb ramps and stairs, balance, kneel, crouch, and crawl; can frequently handle
and finger; can occasionally reach overhead with the bilateral upper extremities; must avoid all
exposure to hazards such as heights and moving machinery; is able to perform simple, routine,
repetitive tasks; requires low-stress work defined as occasional simple decision-making; requires
occasional changes in the work setting; and can have occasional interaction with co-workers,
supervisors, and the public. (R. at 100-01). The VE responded that such a hypothetical person
would be able to perform the representative occupations of surveillance system monitor,
assembler, and mail sorter. (R. at 101) The VE further testified that these occupations exist in
significant numbers in the national economy. (R. at 101).
Plaintiff contends that the ALJ erred in his finding based on the VE’s response to a
flawed hypothetical. She also claims that the VE’s testimony relative to two of the three
identified jobs, mail sorter and surveillance system monitor, was inconsistent with the definitions
within the Dictionary of Occupational Titles (“DOT”), because the mental requirements for said
jobs exceed her RFC for “simple, routine work.” (Docket No. 11 at 36-41); (Docket No. 15 at
27). Plaintiff argues that the ALJ erred and his decision is not supported by substantial evidence.
(Docket No. 11 at 38, 41). Defendant avers that, as the Plaintiff does not raise an objection to the
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assembler position, there is no basis for remand, even if her contentions relative to the other two
positions are correct. (Docket No. 15 at 27).
The Court of Appeals for the Third Circuit requires the ALJ to address and resolve any
material inconsistencies or conflicts between the DOT descriptions and the VE's testimony.
Green, 2010 WL 4929082 at *6 (citing Boone v. Barnhart, 353 F.3d 203, 206 (3d Cir. 2004)).
Failure to do so may necessitate a remand. Boone, at 206. The DOT lists the maximum
requirements of occupations as they are generally performed, and such criteria do not correspond
to the range of requirements of a particular job as it is performed in a particular setting by a
hypothetical individual with a specific vocational background. SSR 00–4p (emphasis added).
Accordingly, a VE may be able to testify to more specific requirements and information about
jobs or occupations than the DOT. Id. Moreover, to the extent that a reasoning level of 3 35
suggests mental demands beyond simple, repetitive, routine work, the reasoning level directly
conflicts with the Commissioner's regulatory definition of unskilled work. See Id.; 20 C.F.R. §§
404.1548, 404.1521, 416.968, 416.921. The Commissioner’s regulatory definitions of skill levels
control. Id. The DOT classifies the surveillance system monitor job as sedentary and unskilled
with a specific vocational preparation (“SVP”) of 2 and a reasoning level of 3. DOT code
379.367–010. To that end, to rely on the DOT’s maximum reasoning levels to argue that the
35
In making their determinations of whether any jobs exist that the claimant can perform, the VE or ALJ frequently
consult the DOT, which is a United States Department of Labor publication containing descriptions of the
requirements for thousands of jobs that exist in the national economy. Green v. Astrue, 2010 WL 4929082 at *4
(W.D. Pa. Nov. 30, 2010) (citing Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002)); See also Rutherford, at 126
(The “Social Security Administration has taken administrative notice of the reliability of the job information
contained in the [DOT].”) (citing 20 C.F.R. § 416.966(d) (2002)). A job with a Level 1 reasoning level means that
the worker is able to “apply commonsense understanding to carry out simple one or two-step instructions [and] deal
with standardized situations with occasional or not variable in or from these situations encountered on the job.”
DOT, Appx. C: Components of the Definition Trailer. Level 2 reasoning level is defined by the worker's ability to
“apply commonsense understanding to carry out detailed but uninvolved oral instructions [and] deal with problems
involving a few concrete variables in or from standardized situations.” Id. A Level 3 reasoning requires the skills to
“[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal
with problems involving several concrete variables in or from standardized situations.” Id.
29
mental demands of surveillance system monitor exceed those for simple unskilled work would
be inconsistent with the Commissioner's regulations. 20 C.F.R. §§ 404.1598(a), 416.968(a).
Here, however, there were no material inconsistencies or conflicts between the DOT
descriptions and the VE’s testimony regarding a hypothetical person’s with Plaintiff’s vocational
background, ability to perform the representative occupations. At the hearing, the ALJ asked the
VE, “And is your testimony consistent with the information found in the Dictionary of
Occupational Titles?” and the VE testified “Yes, your honor.” (R. at 102). The ALJ found the
VE’s testimony to be reasonable and supported, and he concluded that considering her age,
education, work experience, and RFC, the Plaintiff “is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” (R. at 28).
The ALJ was entitled to rely upon the VE's testimony. Green, at *6 (citing Gibbons v. Barnhart,
85 Fed. Appx. 88 (10th Cir. 2003) (“The vocational expert specifically testified that the
limitations of simple reading and writing were consistent with the alternative jobs he identified”
and “once the VE stated that he was relying on the DOT, the ALJ had no further duty to
investigate.”)).
In any event, as Defendant points out, the VE identified a representative occupation, an
assembler, with reasoning level of 1, consistent with the RFC determination and Plaintiff’s
vocational background. (Docket No. 5-3 at 61). According to the DOT, “assembler” is a
sedentary occupation with an SVP of 2 and a reasoning level of 1. DOT code 734.687–0104. The
VE testified that there are 280,000 assembler positions. (R. at 100). The Commissioner's
regulations indicate that work exists in the national economy when there are a significant number
of jobs in one or more occupations which an individual can perform. 20 C.F.R. §§ 404.1566(b),
416.966(b). At Step Five, the Commissioner’s burden of production is to demonstrate that the
claimant could perform work “in one or more occupations” which exist in significant numbers in
30
either the region he lived or in several regions of the country. 42 U.S.C, § 423(d)(2)(A); 20
C.F.R. §§ 404.1520(g), 416.920(g) (emphasis added); Green, 2010 WL 4929082 at *5 (citing
Wright v. Sullivan, 900 F.2d 675, 679 (3d Cir. 1990) (the Commissioner's burden at step five is
satisfied when he identifies at least one occupation in the national economy which the claimant
can perform)). As the VE credibly testified that there are 280,000 assembler positions in the
national economy, the Commissioner's burden of production at Step Five was met, and there is
substantial evidence in support of same. 20 C.F.R. §§ 404.1566(b), 416.966(b).
VI.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [10] is DENIED, and
Defendant’s Motion for Summary Judgment [14] is GRANTED. Appropriate Orders follow.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
September 11, 2014
cc/ecf: All counsel of record.
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