BUTLER v. COLVIN

Filing 13

MEMORANDUM OPINION re 9 First MOTION for Summary Judgment filed by MARCI ANN BUTLER, 11 MOTION for Summary Judgment filed by CAROLYN W. COLVIN. There is substantial evidence existing in the record to support the Commissioner� 39;s decision that Plaintiff is not disabled. The Plaintiff's Motion for Summary Judgment is Denied. The Defendant's Motion for Summary Judgment is Granted. The decision of the ALJ is affirmed. Signed by Judge Maurice B. Cohill on 9/26/2014. (cag)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARCI ANN BUTER,

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)
)

Plaintiff,

Civil Action No. 14-357

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)

~

CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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OPINION

I.

Introduction

Pending before this court is an appeal from the final decision of the Commissioner of
Social Security ("Commissioner" or "Defendant") denying the claims of Marci Ann Butler
("Plaintiff" or "Claimant") for Disability Insurance BenetIts ("DIB") and Supplemental Security
Income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.c. §§ 1381 et. seq.
Plaintiff argues that the decision of the administrative law judge ("AU") should be remanded to
the Commissioner either for payment of disability on the current record or for further
administrative proceedings and a decision which complies with prevailing legal standards
because the ALl's determination is not supported by substantial evidence. To the contrary,
Defendant argues that the decision of the ALI is supported by substantial evidence, and
therefore, the ALl's decision should be affirmed. The parties have tIled cross motions for
summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure .
For the reasons stated below, the Court will grant Defendant's Motion for Summary
Judgment, and deny the Plaintiff's Motion for Summary Judgment.

II. Procedural History
On February 24, 2012, Plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits and also filed a Title XVI application for SSI, (R. at
11), claiming that she became disabled and unable to work beginning January 13, 2012 (R. at
11). On May 16, 2012 the claims were denied (R. at 11). On June 26, 2012, Plaintiff filed a

timely written request for a hearing. The hearing was held on May 23, 2013. Present at the
hearing were Plaintiff, her attorney, A. Tereasa Rerko, and an impartial vocational expert ("VE")
Irene H. Montgomery.
Based on evidence presented at the hearing, Administrative Law Judge, Marty R. Pillion
issued an opinion on July 16,2013. The AU found that the PlaintitT had the following severe
impairments: obesity, ankylosing spondylosis, panuveitis of the right eye, chronic low back pain,
lumbar facet syndrome, bilateral sacroiliitis, uveitis, idiopathic iritis, myopia, gastroenteritis,
lumbago, lumbar disc degeneration without myelopathy, lumbar sprain/strain, HLAB27, lumbar
radiculopathy, lumbar spondylosis, generalized anxiety disorder, depressive disorder, and sexual
identity disorder CR. at 13). However, the AU determined that Plaintiff was not disabled under
the SSA (R. at 22).
The AU concluded that Plaintiff's impairments did not meet or medically equal
one of the Listed Impairments found in the SSA, 20 C.F.R. Part 404, Subpart P,
Appendix I, (R. at 14), and that Plaintiff had the Residual Functioning Capacity
("RFC") to perform sedentary work except she is limited to occasional balancing,
stooping, kneeling, crouching, crawling, and climbing ramps and stairs, no
climbing ladders, ropes, or scaffolds, frequent reach, handle, Enger, and feel, no
exposure to hazards such as heights or moving machinery, and no exposure to
atmospheric conditions such as odors, dusts, gases, or poor ventilation beyond a
level typically found in an indoor work environment such as an office or
department store. Further, she can only perform tasks requiring occasional
reading, and no work requiring binocular vision or depth perception, and is
limited to simple routine, repetitive tasks and simple work-related decisions. (R.
at 16)

2

On January 28, 2014 the Appeals Council denied Plaintiff's Request for Review making
the ALl's decision the final decision of the Commissioner CR. at 1-5). Plaintiff filed suit in this
Court for judicial review of the Commissioner's decision. Presently before this Court are the
parties' cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.
III. Medical History

The AU reported that the doctors' records used to evaluate claim were:

Samuel E.

D'Onofrio, University of Pittsburgh Physicians, UPMC Eye Center, Westmoreland Regional
Hospital, V. Bema Kumar, M.D., and H. King Harman, Jr., M.D CR. at 101). In addition to these
doctors, the record reflected that Plaintiff saw Dr. Malik at the UPMC Arthritis and
Autoimmunity Center on a regular basis for epidural injections (R. at 230).
Plaintiff reported taking the following medications: 10 milligrams of escitalopram for
depression, naproxen for bones, lorazepam for acid reflux, estradiol for transgenderism, Opana
pain pills and Remicade for bones CR. at 39).
In the Disability Determination Explanation, Plaintiff advised the adjudicator that [s]he
no longer believes that [s]he has a disabling mental impairment that prevents [her] from working
CR. at 78).

Furthermore, we found no substantive mental capacity reports on the record.

Therefore, claims relating to mental incapacity will not be addressed in our opinion. Our opinion
focuses on the Plaintiff's claims related to back pain and eye disease.
On November ]0,2010 Plaintiff had an office visit to her primary case physician, Dr. V.
Bema Kumar, M.D. regarding a sore red eye with seepage (R. at 239). Dr. Kumar's impression
was conjunctivitis (R. at 239).

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On January 5, 2011 Plaintiff attended the Emergency Department of Excela Health
Westmoreland Hospital complaining of eye problem of redness and pain.

Plaintiff was

diagnosed with acute conjunctivitis and was discharged with prescription eye drops (R. at 281).
On January 11, 2012 Plaintiff went to the Emergency Department of Excela Health
Westmoreland Hospital with her eye problem. Plaintiff was experiencing a lot of pain and loss
of vision (R. at 271). H. King Hartman, Jr., M.D. diagnosed Uveitis, NOS, Idiopathic iritis,
Inflammatory pupillary membrane, posterior synedhiae, OD-Hypopyon, AC fibrin, and Myopia
(R. at 259). Impression: Severe Panuveitis of the right eye (R. at 271). Plaintiff was referred to

Samuel E. Donofrio by Dr. Hartman. Dr. D'Onofrio gave Plaintiff a guarded visual prognosis
(R. at 313).

On January 30, 2012 Plaintiff had a physical examination with a diagnosis of
musculoskeletal pain and strain (R. at 77). Plaintiff visited the Emergency Department at Excela
Health Westmoreland Hospital with back or flank pain (R. at 263). Plaintiff was positive for
right midline tenderness upon palpation but did not have limited range of motion and straight leg
testing was negative (R. at 265). Diagnosis was probable sacrolitis (R. at 265). Plaintiff was
given pain medication and discharged on the same day (R. at 270).
On February 23, 2012 Plaintiff saw Dr. Ashima Malik of the UPMC Arthritis and
Autoimmunity Center for a physical exam. Plaintiff was diagnosed with severe disorders of the
back - dicogenic and degenerative and non-severe loss of visual acuity (R. at 78). Diagnoses
was Ankylosing Spondylitis and Sacroiliitis NEC (R. at 297). Dr. Malik reports that PlaintitT
was found to have HLA-B27 +ve and sacro-ilitis on x-rays and she was referred to
Rheumatology (R. at 297). Dr. Malik ordered the following plan: "-check hep B, hep C, esr,
CRP and CCP.

get X-rays of neck/thoracic land lumbar spine. - get CT scan of pelvis to see

4

extent of erosions so can compare in future. - increase dose of Indocin to 800mg TID scheduled
with PPI for inflammatory pain. Continue tit with nasaid's for next 1-2 months. Ifno response­
will need Anti-TNF's. - start physical therapy or ROM and setting up a home exercise program."
CR. at 300).
As stated above, Dr. D'Onofrio saw Plaintiff for a comprehensive ocular examination on
January 11, 2012. Based on the examination he reports, "As for disability status. Patient will
have great difficulty performing any work related tasks involving depth perception. Patient has
little to no usable vision in her right eye. Driving, handling heavy equipment, etc. would not be
recommended second to her current visual status." CR. at 313). However, On March 19,2012
Dr. Samuel E. D'Onofrio provided a report which listed no other restrictions for Plaintiff CR. at
311-12).
On April 10, 2012 at CT of the pelvis and abdomen was performed on Plaintiff at
Westmoreland Regional Hospital. Findings were generally unchanged and normal. It was only
noted that there may be subtle sclerosis on iliac side of both SI joints (R. at 387).
On April 26, 2012 Plaintiff returned to Dr. Malik for back pain. Plaintiff reported pain
and stiffness all day and unable to sleep at night. Plaintiff had 10 sessions with physical therapy
which she reported did not provide any relief (R. at 691). Plaintiff also reported no improvement
on ibuprofen or Naprosyn. Plaintiff has HLAb-27 associated spondyloarthropathy that failed to
respond to nsaids (non-steroidal anti-inflammatory drugs) and conservative measures (R. at 693).
The plan was to start Humira, and continue Naprosyn until they could get Anti-TNF's. Plaintiff
was told to continue physical therapy for range of motion ("ROM") exercises (R. at 693).
April 30, 2012 Plaintiff saw Kelli Sarocky, PA-C for chronic low back pain. Plaintiff
rated the pain at 7/10. Plaintiff was awaiting approval to begin Humira (R. at 686). "Patient was

5

significantly tender to even light palpation throughout lumbar spine and bilateral SI joints. No
spasms noted." (R. at 688). Plaintiff was hesitant on ROM and ROM and straight leg raise
aggravated the pain in the lower extremities bilaterally.

Plaintiff had full ROM in lower

extremities and strength testing is 5+/5. Patella and Achilles reflexes are 2+/4. Sensation is
intact and equal across all dermatomal distributions (R. at 688). Doctor Sarocky recommended
discontinuing use of naproxen and Ibuprofen due to ineffectiveness (R. at 688). Plaintiff was
prescribed alternative medications of Meloxicam and Tramadol (R. at 688).
Plaintiff underwent a left SI injection on May 4, 2012 but she found no benefit (R. at
677). Dr. Michael Toshok administered the injection with an attempt for 50% pain reduction
over the left sacroiliac region. Plaintiff reported a pain level of 611 0 on this day (R. at 683).
On May 8, 2012 Plaintiff attended Westmoreland Regional Hospital for a Bone Density
Scan of the Spine and Hip to get a baseline reading (R. at 383). The scan was performed due to
the diagnosis of ankylosing spondylitis. The Plaintiffs BMD was compatible with normal bone
density (R. at 383). A eomparison was performed of the spine to a January 21, 2009 study where
degenerative disc status loss was minimal and osteophyte formation and minimal bilateral
foraminal encroachment were seen at C5-C6 and C6-C7 (R. at 386). At the thoracic spine there
was minimal marginal osteophyte formation and some mild anterior wedging of the TlO and TIl
vertebral bodies (R. at 387).
May 16, 2012 Plaintiff returned to Dr. Sarocky, PA-C for a follow up visit for chronic
low back pain. The pain was located about the cervical, thoracic, lumbar spine but was most
significant along the lumbar spine. The pain does refer along both hips and the anterior inguinal
areas. Plaintiff rated the pain as an 811 0 and states it occurs daily (R. at 680). Plaintiff said her
pain is aggravated with all forms of motion and is interfering with her activities of daily living

6

(R.at 680). Plaintiff was undergoing physical therapy three times a week and finding no benefit
(R. at 680). Dr. Sarocky ordered MRI of the lumbar spine and sought to obtain a back brace (R.
at 682).
May 25, 2012 the Center for Medical Imaging performed an MRI of the lumbar spine.
The study concluded that there was degenerative disc disease, no evidence of herniation, no
evidence of any narrowing at any level, hypertrophic degenerative changes were seen involving
the facet joints posteriourly at the L4-5 and L5-S 1 level CR. at 779).
On June 4,2012 Plaintiff visited Dr. Toshok again to receive pain treatment in the way of
medications and injections (R. at 229). Plaintiffs pain was located in the cervical, thoracic, and
lumbar spine but was most significant in the lumbar spine CR. at 677). Dr. Toshok reported the
following test results:
Patient was diagnosed with ankyIosing spondylitis and testing revealed a positive
HLA-B27. She did consult Dr. Malik, rheumatologist. He did order further
testing. Cervical spine x-ray April 12, 2012 reveals degenerative disc stature loss,
minimal osteophyte formation in minimal bilateral foraminal encroachment C5­
C6 and C6-C7. Thoracic spine x -ray April 12, 2012 reveals minimal marginal
osteophyte formation, mild anterior wedging at T 10 and T II. Mild curvature
convex to the right. Lumbar spine x-ray April 12, 2012 reveals bilateral L5
spondylolysis is questioned to be present. MRI lumbar spine from May 25, 2012
indicates degenerative changes involving the facet joints at L4-5 and L5-S I
levels. There is no evidence of any disc protrusion or disc herniations no
foraminal significant narrowing noted at any levels hemangiomas seen at L2
vertebral body level. CR. at 677)
Dr. Toshok's examination revealed:
Plaintiff is moderately tender to palpation throughout cervical and thoracic spine.
No spasms noted throughout the thoracic or lumbar region at this time. She has
hesitant cervical and lumbar ROM as all forms of ROM aggravate her pain
complaints, under f1uoroscopy diffuse discomfort with facet lading from the IA-5
through L5-S 1 levels bilateral slightly worse on left no radieular symptoms. She
has full ROM lower extremeities and strength testing is 5+/5. Sensation is intact
and equal across all dermatomal distributions. CR. at 678)

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Dr. Toshok's notes of June 19, 2012 indicate that he had a conversation with Dr. Malik,
Plaintiff's Rheumatology fellow.

Plaintiff had ongoing complaints about lower lumbar pain

despite intra-articular facet injections. Dr. Malik recommended a repeat injection. Dr. Toshok
commented if there is no improvement he would recommend discontinuing injections CR. at
676). Dr. Toshok recommended a lumbar support brace and muscle stimulation but not likely
these devices would be approved by Plaintiffs health care CR. at 676). Aqua physical therapy in
a therapeutic pool was another option presented to Plaintiff (R. at 676). A final consideration
was an implantable morphine/Dilaudid pump (R. at 679).
On June 18, 2012 Plaintiff went to the Westmoreland I-Iospital for acute pelvic pain. The
condition was diagnosed as acute exacerbation of chronic low back and bilateral hip pain (R. at
396). Plaintiff was discharged with pain medication on the same day. Comparison x-rays of the
lumbar spine were performed and there were no significant changes from April, 2012 (R. at 405).
June 29, 2012 Plaintiff attended DNA

Mount Pleasant Surgery Center for back pain.

Plaintiff was taking opioid analgesics and reported 50% relief from medication.
described her symptoms as severe or worsening.

Plaintiff

Her symptoms are exacerbated by weight

bearing, back motion, standing, sitting, prolonged standing, prolonged sitting, lifting, bending,
straining and supine position (R.at 763). Plan was to schedule Plaintiff for injections and give
her a short script ofPercocet (R. at 765).
July 12, 2012 Plaintiff attended DNA - Mount Pleasant Surgery Center for performance
of diagnostic and therapeutic interventions to assist with pain management and increase overall
level of function (R. at 767). On this same day

Plaintift~

once again, visited the Emergency

Department of Excela Health Westmoreland Hospital complaining of back or flank pain. The
final impression was back pain due to epidural (R. at 416).

8

They performed a CT lumbar

contrast x-ray and found a small central disc bulge at L5-S 1. There is a small amount of air in
the paraspinous muscles and subcutaneous fat posterior to L5 and S 1 CR. at 427). Plaintiff was
provided with pain medication and released.
July 26, 2012 Plaintiff attended DNA

Mount Pleasant Surgery Center for a recheck of

back pain after an injection procedure. Plaintiff requested no more injections after she had a CT
scan done at the emergency room and they found an air pocket in her spine. She was getting no
relief from injections. Her pain level was a 911 0 and she requested pain medication CR. at 760).
August 21, 2012 Plaintitf underwent a lumbar epidural steroid injection for her lumbar
intravertebral disk disorder at the Aestique Ambulatory Surgical Center CR. at 787).
September 4, 2012 Plaintiff had a lumbar epidural steroid injection at Aestique
Ambulatory Surgical Center (R. at 786).
September 6, 2012 Plaintiff attended DNA

Mount Pleasant Surgery Center for a

recheck of back pain after an injection procedure.

Plaintiff had no relief from pain after

injection. She had nausea and vomiting, left leg was numb and tingling and foot and toes were
cramping (R. at 757). Plaintiff went to the emergency room to address the symptoms. Plaintiff
reported no relief in pain but did note increased weakness CR. at 757). An MRI was ordered
because of Plaintiffs reported numbness and tingling and difficulty weight bearing CR. at 757).
September 11, 2012 the Center for Medical Imaging performed multiple pulse imaging
sequences of the lumbar spine. It was concluded that there were mild degenerative changes,
questionable small issue in the annulus fibrosis at L4-L5 but no significant compromise of the
thecal sac or the existing nerves at L5-S1 CR. at 775).

9

September 13, 2012 Plaintiff attended DNA - Mount Pleasant Surgery Center for a
recheck of back pain after a procedure. Plaintiff said she had no relief from injection and her
pain level was at 9/1 0 (R. at 753).
September 28, 2012 Plaintiff attended DNA - Mount Pleasant Surgery Center for a
recheck following a change in medication. PlaintitT showed same pain patterns and described
the pain as sharp and stabbing. She reported her pain level as 811 0 but said she felt relief with
heat (R. at 750).
October 14, 2012 Plaintiff attended the Emergency Room once again for back pain.
Impression was chronic back pain (R. at 670). Plaintiff was discharged with a pain prescription
(R. at 670).

October 16, 2012 Plaintiff attended DNA - Mount Pleasant Surgery Center for a follow
up after a procedure. Plaintiff reported she had no relief from injection (R. at 746). PlaintifT
indicated pain in her pelvic low back area and left leg numbness. She also noted weakness in her
left leg. Pain level was reported as 10/1 0 (R. at 746).
November 6,2012 Plaintiff had a Left sided L3, L4, L5, Sl facet nerve block at Aestique
Ambulatory Surgical Center (R. at 785).
November 20,2012 Plaintiff had a left sided L3, L4, and Sl facet nerve block at Aestique
Ambulatory Surgical Center (R. at 784).
December 13, 2012 Plaintiff attended DNA

Mount Pleasant Surgery Center for a

recheck of back pain. Plaintiff was taking Opana ER and did tind some relief but stated that the
cold weather made her pain worse and she could not get out of bed on Monday because of the
pain. She was also having a lot of trouble sleeping (R. at 742). She felt numbness in her legs

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and feet and weakness in her left leg (R. at 742). She had a sharp stabbing pain in her low back
and leg (R. at 742). She rated the pain as a 911 0 (R. at 742).
December 18, 2012 Plaintiff had a right sided L3, L4, LS, and SI medial branch block at
Aestique Ambulatory Surgical Center (R. at 783).
January IS, 2013 Plaintiff had a

L3~SI

facet nerve block on the right side at Aestique

Ambulatory Surgical Center (R. at 782).
February 14, 2013 Plaintiff attended DNA

Mount Pleasant Surgery Center for a follow

up after an injection procedure. Plaintiff said pain had improved by SO% and she is at a SI1 0
pain level. She described her pain as a dull ache (R. at 738). Plaintiff exhibited tenderness.
Plaintiff's modified straight leg raising test is positive. Patrick and straight leg test on right and
left is negative. Plaintiff had a painful gait and was favoring her left leg. Plaintiff had pain on
f1exion, pain on extension and decreased and limited ROM (R. at 740).
February 19,2013 Plaintiff had a left sided L3, L4, L5, SI Radiofrequency Rhizotomy of
the left lower lumbar fact joints at Aestique Ambulatory Surgical Center (R. at 781).
March 19, 2013 Plaintiff had a left sided L3, lA, LS, S I Radiofrequency Rhizotomy of
the left lower lumbar fact joints at Aestique Ambulatory Surgical Center (R. at 780).
April 2, 2013 Plaintiff attended DNA

Mount Pleasant Surgery Center for a recheck of

back pain. Her symptoms included pain, stiffness, and decreased range of motion. The pain
radiated to Plaintiff's lower extremities.

Plaintiff reported she did not get any relief from

Rhizotomy and believed the pain to be worse now. She reported the pain as a 1011 O. She did not
find the medication to give her relief and she only had one hour of sleep the night before due to
pain (R. at 734). Plaintiff's modified straight leg raising test was positive. Patrick and straight

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leg test on right and left was negative. Plaintiff had a painful gait and was favoring her left leg.
PlaintitT had pain on t1exion, pain on extension and decreased and limited ROM (R. at 736).
May 2, 2013 Plaintiff presented at D"SA - Mount Pleasant Surgery Center after
Cryo/Rhizo (Left L3, L4, L5, S 1 Rhizo done under sedation at Aestique. Pain had improved but

was still rated at 6/10 by Plaintiff. Plaintiff also reported that medication Opana has helped with
pain (R.at 730). Examination of Plaintiff found her to have facet tenderness on right and left and
medial low back. Her sensation was diminished (R.at 730). Her modified straight leg raising
test was positive (R. at 730). Plaintiff was to continue current treatment and medications and
was not to engage in prolonged sitting or standing (R.at 730).
May 24, 2013 Plaintiff attended an appointment with Brinda Navalgund, MD for an
elecrodiagnostic evaluation due to numbness from hip to toe on her left side (R. at 768). Plaintiff
reported her symptoms of numbness, tingling, and weakness involving the left lower extremity to
be constant (R. at 768). Upon examination Dr. Navalgund noted that there was no edema or
atrophy and range of motion was normal, motor exam was normal and straight leg raise was
negative (R. at 769). Plaintiff did not tolerate the testing and requested termination prior to
completion. "So diagnostic results were obtained (R. at 769).
On July 27, 2014 Plaintiff returned to the Emergency Department complaining of back
pain and requesting a medication refill CR. at 430). Plaintiff's pain was at the bilateral and lower
lumbar area CR. at 431). Plaintiff was advised to see her primary care physician for medication.
IV. Summary of Testimony
Plaintiff reported her daily routine as:
I get up, and I, kind of, stretch out my body to see, you know, what I can do. I
go into the bathroom, have my routine in there. Go downstairs, let the dog out to
go to the bathroom, feed the dog, feed the cat, get something light to drink, and sit

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down on the chair and on the heating pad after I've taken my medications. And
then figure out what I need to do for the day.
And then it always insists [sic] me, several times a day, having to lay down
and rest my back. That will be lay down on the couch. That may include a nap of
about an hour and a half to two hours. Then I try to move around a little bit more
and get something to eat. Like I said, it's quick in the microwave out of the
microwave on small plates so I don't have to carry a big place because of the
heaviness of it. (R. at 50)

Plaintiff's past work included accounts specialist, cab driver, production worker, intake
worker/scheduler, Verizon technician, appointment/scheduler position, collections' agent,
customer service representative, and merchandiser (R. at 60-61). Her last known position was as
as a cab driver and she was discharged in November 2011 during the probationary period (R. at
31). Plaintiff was later diagnosed with HLA-B27, a rare disease of the eye and ankylosing
spondylitis in January of 20 12 (R. at 31).
At the state agency's request, Dr. Paul Reardon reviewed the record and evaluated the
Plaintiff's Physical RFC and listed the following exertional limitations: occasionally lift/carry
20 pounds, frequently lift/carry 10 pounds, stand and/or walk about 6 hours in an 8 hour work
day, sit for about 6 hours in an 8 hour work day, push and pull capabilities are unlimited,
occasional climbing ramps/stairs,
crouching, and crawling (R. at 80).

ladders/ropes/scaffolds,

balancing,

stooping, kneeling,

Plaintiff's visual limitations are right eye vision in all

respects is limited (R. at 81). Plaintiff is to avoid extreme heat and cold, wetness, humidity,
vibration, and fumes, odors, dusts, gases and poor ventilation (R. at 81). Plaintiff should avoid
moderate exposure to hazards such as machinery or heights (R. at 82). "Based on the evidence
of record, the claimant's statements are found to be partially credible." (R. at 82). Dr. Reardon
relied on the opinion of Samuel E D'Onofrio, O.D., an optometrist who stated that Plaintiff is
limited in seeing and driving and that she should avoid exposure to moving machinery (R. at 82).

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At the hearing the ALl took into account the Plaintiff's medical history, RFC, and her work
history and asked the VE to consider an individual with the same work experience as Plaintiff
who is limited to light work and who can occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs. The individual cannot climb ropes, ladders, or scaffolds. The individual
can frequently reach, handle, find, and feeL The individual cannot tolerate exposure to hazards
such as heights or moving machinery.

The individual cannot tolerate exposure to weather,

extreme heat or cold, wetness, or humidity.

The individual cannot tolerate exposure to

atmospheric conditions, such as dust, fumes, odors, smoke, or poor ventilation beyond a level
typically found in an indoor work environment, such as an office setting or department store.
The individual can only perform tasks that require reading occasionally CR. at 62).
The VE responded that such an individual as Plaintiff would be precluded from performing
past work (R. at 62). The VE reported that the Plaintiff would be able to perform light unskilled
positions such as weigher scales operator, collator position such as printing and publishing,
inspector, and ticketer, or marker; these types of positions are available in the national economy
(R. at 62-63).

V. Standard ofReview
The Congress of the United States provides for judicial review of the Commissioner's
denial of a claimant's benefits. See 42 U.S.c. § 405(g)(2012).

This Court must determine

whether or not there is substantial evidence which supports the findings of the Commissioner.
See id. "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.
1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971 ). This deferential standard has
been referred to as "less than a preponderance of evidence but more than a scintilla." Burns v.

14

Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). This standard, however, does not permit the court to
substitute its own conclusions for that of the fact-finder.

See id.; Fargnoli v. Massonari, 247

F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge's findings "are
supported by substantial evidence" regardless of whether the court would have differently
decided the factual inquiry).

To determine whether a finding is supported by substantial

evidence, however, the district court must review the record as a whole. 5 U.S.c. § 706(1 )(F)
(2012).

VI. Discussion
Under SSA, the term "disability" is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months ... " 42 U.S.C. §§ 416(i)(1); 423(d)(1)(A); 20 C.F.R. § 404.1505
(2012). A person is unable to engage in substantial activity when:
[H]e is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he
applied for work.. ..
42 U.S.c. § 423(d)(2)(A).
In determining whether a claimant is disabled under SSA, a five-step sequential
evaluation process must be applied. See 20 C.F.R. § 404.1520; McCrea v. Comm'r of Soc. Sec.,
370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows: At step one, the
Commissioner must determine whether the claimant is engaged in substantial gainful activity for
the relevant time periods; if not, the process proceeds to step two.

See 20 C.F.R.

§ 404.1520(a)( 4)(i). At step two, the Commissioner must determine whether the claimant has a

15

severe impairment. See id. at § 404.1520(a)(4)(ii).

If the Commissioner determines that the

claimant has a severe impairment, he must then determine whether that impairment meets or
equals the criteria of an impairment listed in 20 C.F.R., part 404, subpart p, Appx. 1.
§ 404.1520(a)( 4 )(iii). If the claimant does not have an impairment which meets or equals the
criteria, at step four the Commissioner must determine whether the claimant's impairment or
impairments

prevent

him

from

performing

his

past

relevant

work.

§ 404.1520(a)( 4)(iv). If so, the Commissioner must determine, at step five, whether the claimant
can perform other work which exists in the national economy, considering his residual functional
capacity and age, education and work experience.

See id. at § 404.1520(a)(4)(v); see also

McCrea, 370 FJd at 360; Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000).
Before considering step four of the sequential evaluation process, the ALl must first
determine the claimant's residual functional capacity ("RFC") (R. at 12).

An RFC is an

individual's capacity to do physical and mental work activities on a sustained basis despite
limitations from her impairments (R. at 12). The ALl found the claimant to have the following
severe impairments:
[O]besity, ankylosing spondylosis, panuveitis of the right eye, chronic low back
pain, lumbar facet syndrome, bilateralsacroiliitis, uveitis, idiopathic iritis, myopia,
gastroentreritis, lumbago, lumbar disc degeneration without myelopathy, lumbar
sprain/strain, HLAB27, lumbar radiculopathy, lumbar spondylosis, generalized
anxiety disorder, depressive disorder, and sexual identity disorder (20 C.F.R.
§§ 404.1S20(c) and 416.920(c). (R. at 13).
In this case, The ALl determined that the claimant does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 CR. at 14). However, based on her impairments the ALJ
did find that the Plaintiff is unable to perform her past relevant work (R. at 20).

16

The Commissioner, moving forward, uses the sequential evaluation process and
determined at step (5) that the Plaintiff has not met her burden of proof that she cannot work in
some capacity in the national economy. The Commissioner relied on the ALl's determination
that despite the Plaintiff's impairments, Plaintiff retained the capacity to perform sedentary work
with various limitations that limited her to simple, routine, repetitive tasks and simple workrelated decisions (R. at 16).
The AL.I also determined the Claimant's statements concerning the intensity, persistence
and limiting effects of these symptoms were not entirely credible (R. at 17).
After careful consideration of the entire record, the [ALl] finds that the claimant
has the residual functional capacity to perform sedentary work except she is
limited to occasional balancing, stooping, kneeling, crouching, crawling, and
climbing ramps and stairs, no climbing ladders, ropes, or scaffolds, frequent
reach, handle, finger, and feel, no exposure to hazards such as heights or moving
machinery, and no exposure to atmospheric conditions such as odors, dusts, gases,
or poor ventilation beyond a level typically found in an indoor work environment
such as an office or department store. Further, she can only perform tasks
requiring occasional reading, and no work requiring binocular vision or depth
perception, and is limited to simple routine, repetitive tasks and simple work­

related decisions. (R. at 16).

Based on the VE's testimony, the ALJ found that considering the Plaintiff"s age,

education, work experience, and residual functional capacity, the Plaintiff is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy
(R. at 22).

The Plaintiff disagreed with the ALl's determination. The claimant bears the burden of
proving not only that he has an impairment expected to result in death or last continuously for a
year, but also that it is so severe that it prevents her from performing any work See 42 U.S.c.
§§ 423(d)(2)(A), 1382c(a)(3)(B); Bowen v. Yuckert, 482 U.S. 137, 147 (1987). This requires
the Plaintiff to prove that her RFC or limitations are that which do not allow for any work in the

17

national economy. See Heckler v. Campbell, 461 U.S. 458, 460 (1983); Matthews v. Eldridge,
424 U.S. 319, 336 (1976). Moreover, the ALJ is not required to uncritically accept Plaintiff's
complaints. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356,363 (3d Cir. 2011). The ALJ,
as fact finder, has the sole responsibility to weigh a claimant's complaints about his symptoms
against the record as a whole. See 20 C.F.R. §§ 404.1 529(a), 416.929(a).
In support of her Motion for Summary Judgment and Brief [ECF Nos. 9 and 10], the
Plaintiff argues that the ALl's decision does not address the criteria set forth in Listing 14.09 for
ankylosing spondylitis [ECF No. 10 at 9].

Plaintiff further asserts that the AU's medical

findings run contrary to the evidence of record provided by treating physicians [ECF No. 10 at
9]. In particular, Plaintiff states that the ALI discounted medical records provided by treating
rheumatologists and pain specialists rECF No. 10 at 10]. Plaintiff notes that the ongoing regular
doctor appointments that Plaintiff is required to attend will cause her to miss a great amount of
work [ECF No. 10 at 10]. Finally, Plaintiff takes issue with the ALl's use of the Plaintiff's daily
activities to determine Plaintiff's credibility [ECF No. 10 at 10].

The Third Circuit has

established that activities such as school, hobbies, housework, social activities, travel or use of
public transportation cannot be used to show an individual's ability to engage in substantial
gainful activity. See Frankenfield v. Bowen, 861 F.2d 405 (3d Cir. 1988).
The Plaintiff also asserted that the ALJ failed to adequately cross-examine the VE
regarding the duration of sitting and standing in a sedentary position rECF No.1 0 at 12]. The
Plaintiff asserted that she could not tolerate the sitting and standing requirements of a sedentary
position (R. at 71). We disagree with Plaintiff's assertion outright. The AU asked appropriate
questions that caused the VE to clearly state that the ability to perform work at a sedentary level
is not compromised by a restriction or limitation on sitting or standing (R. at 70).

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In response to the Plaintiffs assertion regarding the reVieW of Listing 14.09C, the
Commissioner, in her Brief in Support of Motion for Summary Judgment [ECF No. 12 at 13]
admits to the absence of the ALJ's review of ankylosing spondylitis under Listing 14.09 for
inflammatory arthritis. However, the Commissioner states that the Plaintiff failed to proffer any
evidence to establish that her impairment met or medically equaled Listing 14.09C to cause the
AU to conduct such a review [ECF No. 12 at 13]. Nevertheless the Commissioner performed
the evaluation in her Brief and found that the Plaintiffs condition as represented on the record
does not satisfy the requirements as described in 14.00D [ECF No. 12 at 15].
The Plaintiff s second assertion that the ALJ discounted the medical records of Plaintiff s
treating physicians.

We disagree.

In the ALl's Decision of July 16, 2013 he reviews the

objecti ve medical evidence in the course of his finding of the Plaintiff being partially credible (R.
at 17-18). In fact, the ALJ notes the Plaintiff s emergency room visits, her epidural injections,
and the physical examinations and the findings and impressions of these various treatments with
regard to Plaintiffs musculoskeletal pain and vision problems (R.at 18). The ALJ also noted the
weak objective evidence of record to support a finding that Plaintiff is unable to work at any
occupation available in the economy (R. at 20). The Commissioner further substantiates the
AL.rs determination when noting that only "mild degenerative changes" were noted in
diagnostic testing and that "impressions revealed intact vertebral bodies, intact posterior
elements, intact odontoid process, normal alignment, and only minimal osteophyte formation and
minimal foramine encroachment." [ECF No. 12 at 16]. In general, we found the balance of the
Plaintiffs medical testing was normal or reported minimal abnormalities. It is our opinion that
the ALJ, in providing his scenario to the VE took into account the medical record in its entirety
including medical narrative by treating sources, Plaintiff narrative, and objective medical

19

fIndings and came to a reasonable conclusion regarding Plaintiffs disabled status.

Any

additional evidence from rheumatologists and pain specialists on the record was simply that have
procedure for injections without commentary on Plaintiff's condition or capabilities.
Both the ALl and the Commissioner noted evidence of the Plaintiff's daily activities.
Namely, the ALl states, 'The claimant reported that she had some difficulty dressing and
bathing, but she prepared her own meals, cleaned, did the laundry, drove a car, went out alone,
went shopping in stores, paid bills, watched television, spent time with others, went to church,
and attended social group."

CR. at 19) [ECF No. 12 at 21].

We agree with Plaintiff that

evidence of daily activities cannot be used to show an individual's ability to engage in
substantial gainful activity. "Performing household chores is very different from working eight
hours a day in a labor-intensive job." Stroman v. Astrue, 2009 U.S. Dist. LEXIS 10491, 147
SSR 73 (Nov. 4, 2009). However, we do believe activities of daily living are relevant and may
be considered in evaluating a claimant's symptoms.

See 20 C.F.R. § 416.929(c)(3)(i).

We

believe that the ALl gave adequate consideration to Plaintiffs daily life activities in relation to
other facts on record and her ability to work.
With regard to the ongoing medical appointments cited by Plaintiff's counsel, we are in
agreement the Commissioner that there is no substantive information to support that Plaintiff's
medical appointments would be such that they would interfere dramatically with her ability to
maintain a job [See ECF No. 12 at 24]. Any intimation that Plaintiffs medical appointments
would inhibit the Plaintiffs ability to work is pure speculation and not a proper basis on which to
award disability benefIts.

20

Vll.

Conclusion

For the foregoing reasons, we conclude that there is substantial evidence existing in the
record to support the Commissioner's decision that Plaintiff is not disabled, and therefore, the
Plaintiffs Motion for Summary Judgment is denied. The Defendant's Motion for Summary
Judgment is granted. An appropriate order will be entered.

Date:

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Maunce B. Cohill, Jr.
Senior United States District Court Judge

counsel of record

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