PETRAVICH v. COLVIN

Filing 14

MEMORANDUM AND ORDER OF COURT denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 3/21/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYL VANIA

DORIS M. PETRAVICH,
Plaintiff,
v.
CAROLYNW. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 14-1602

MEMORANDUM AND ORDER OF COURT
AND NOW, this

J J.9fay of March, 2016, upon due consideration ofthe parties' cross-

motions for summary judgment relating to plaintiffs request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiffs applications for disability
insurance benefits and supplemental security income under Titles II and XVI, respectively, ofthe
Social Security Act ("Act"), IT IS ORDERED that the Commissioner's motion for summary
judgment (Document No. 11) be, and the same hereby is, granted and plaintiffs motion for
summary judgment (Document No.9) be, and the same hereby is, denied.
As the factfinder, an Administrative Law ludge ("ALl") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the ALl explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999). Where the ALl's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALl's
decision here because the record contains substantial evidence to support the ALl's findings and
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conclusions.

Plaintiff protectively filed her pending applications for disability insurance benefits and
supplemental security income on September 23,2011, alleging a disability onset date ofSeptember
9, 2011, due to bipolar disorder, depression, post-traumatic stress disorder (PTSD), anxiety,
memory loss and degenerative disc disease. Plaintiffs applications were denied initially. At
plaintiffs request an ALJ held a hearing on April 26, 2013, at which plaintiff, represented by
counsel, appeared and testified. On May 14,2013, the ALJ issued a decision finding that plaintiff
is not disabled. On September 26, 2014, the Appeals Council denied review making the ALJ's
decision the final decision of the Commissioner.
Plaintiff was 52 years old at the time of the ALJ's decision and is classified as a person
closely approaching advanced age under the regulations. 20 C.F.R. §§404.1563(d) and
416.963(d). She has an eleventh grade education, which is classified as limited. 20 C.F.R. §§
404.1564(b)(3) and 416.964(b)(3). Plaintiff has past relevant work experience as a certified
nurse's aide. While plaintiff worked part-time approximately 18 hours a week after her alleged
onset date, this work activity did not rise to the level of substantial gainful activity under the
Act. Accordingly, the ALJ found that she has not engaged in substantial gainful activity since
her alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiff is not disabled within the meaning of the
Act. The ALJ found that although plaintiff has a number of severe impainnents, I those

Specifically, the AU found that plaintiff has the severe impainnents of bilateral carpal tunnel
syndrome, cervical and lumbar degenerative disc disease(DDD)/spondylosis, thoracic DDD and scoliosis,
osteopenia, chronic obstructive pulmonary disease, Chairi Malfonnation, restless leg syndrome, depression,
bipolar disorder, post-traumatic stress disorder, alcohol abuse in remission and polysubstance abuse. (R.
17).
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impairments, alone or in combination, do not meet or equal the criteria of any of the
impairments listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to engage in
work at the light exertionallevel but with numerous restrictions necessary to accommodate her
physical and mental impairments? Taking into account these restrictions, a vocational expert
identified numerous categories ofjobs which plaintiff can perform based upon her age,
education, work experience and residual functional capacity, including packer, night patrol
clerk and mail clerk. Relying on the vocational expert's testimony, the ALJ found that although
plaintiff cannot perform her past relevant work, she is capable of making an adjustment to
numerous jobs existing in significant numbers in the national economy. Accordingly, the ALJ
concluded that plaintiff is not disabled under the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment which can be expected to last for a continuous
period of at least twelve months. 42 U.S.C. §§423(d)(l )(A) and 1382c(a)(3)(A). The
impairment or impairments must be so severe that the claimant "is not only unable to do his
previous work but cannot, considering his age, education and work experience, engage in any
other kind of substantial gainful work which exists in the national economy .... " 42 U.S.C.
§§423(d)(2)(A) and §1382c(a)(3)(B).

Specifically, the AU detennined that plaintiff has the residual functional capacity to perfonn
light work except she can never climb a ladder, rope, or scaffold; can never crawl; can only occasionally
climb ramps or stairs; can only occasionally balance, stoop, kneel, or crouch; must avoid concentrated
exposure to gases, fumes, and like respiratory irritants; must avoid all exposure to unprotected heights,
dangerous machinery, and like workplace hazards; is limited to understanding, remembering, and carrying
out simple instructions and perfonning simple, routine tasks; is limited to only occasional and superficial
interaction with co-workers and the public, with no transactional interaction such as sales or negotiation;
and is limited to a low stress work environment defined as no production rate pace work, but, rather, goal
oriented work with only occasional and routine change in work setting. (R. 20).
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The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.3 20 C.F.R.
§§404.l520 and 416.920. If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further. Id.; see Barnhart v. Thomas, 540 U.S. 20 (2003).
Here, plaintiff raises two challenges to the ALl's finding of not disabled: (1) the ALl
improperly evaluated plaintiffs credibility; and, (2) the ALl erroneously relied on the
vocational expert's response to a hypothetical question that failed to incorporate all of the
limitations arising from plaintiffs impairments. Upon review, the court is satisfied that the
ALl correctly evaluated plaintiffs credibility under the regulations and that all of the ALl's
findings are supported by substantial evidence.
Plaintiff first argues that the ALl failed to comply with the regulations in evaluating
plaintiffs subjective statements as to the severity of her limitations and that the ALl's adverse
finding that her statements are not entirely credible was "conclusory." However, the court is
satisfied that the ALl adhered to the appropriate standards in evaluating plaintiffs statements
regarding her symptoms and limitations and more than adequately explained the reasons
underlying his credibility determination.

3 The ALl must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impairment; (3) if so, whether her impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix I; (4) if not, whether the claimant's
impairment prevents her from performing her past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of her age, education, work
experience, and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920; NeweIl v. Commissioner
of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence of a mental
impairment that allegedly prevents a claimant from working, the Comm issioner must foHow the procedure
for evaluating mental impairments set forth in the regulations. Plummer, 186 F.3d at 432; 20 C.F.R.
§§404.1520a and 416.920a.
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As required under the regulations, the ALJ in this case properly considered plaintiffs
subjective statements as to the intensity, persistence and limiting effects of her symptoms in
light ofthe objective medical evidence, as well as all of the other factors relevant to plaintiffs
symptoms as set forth in 20 C.F.R. §§404.1529(c) and 416.929(c). See also SSR 96-7p.
Contrary to plaintiffs contention that the ALl's credibility finding was "conclusory," the ALJ
thoroughly explained, over the course of more than four pages in his decision, why plaintiff's
statements concerning "the intensity, persistence and limiting effects of [her] symptoms are not
entirely credible." (R. 21-25).
Specifically, the ALJ reviewed the objective medical evidence as to both plaintiff's
physical and mental impairments and found the objective evidence to be unsupportive of
plaintiff's allegations of disabling impairments. The ALJ noted generally unremarkable results
on plaintiff's examinations and that she has received only fairly conservative treatment for both
her physical and mental impairments. (R. 21-23). In addition to the objective evidence, the
ALJ also cited plaintiff's "relatively full and independent" activities of daily living, her use of
primarily over-the-counter medications for her pain, and her ability to engage in part-time work
as additional reasons for concluding that plaintiff's allegations of totally debilitating limitations
are not entirely credible. (R. 21-25).
Although plaintiff alleges that the ALJ improperly focused on the part-time work
plaintiff performed after her alleged onset date, the ALJ did not err in considering that
part-time work as a factor in assessing plaintiffs credibility as to her allegations of debilitating
limitations. 20 C.F.R. §§404.1571 and 416.971 (work done during alleged disability period
may show that claimant can work at substantial gainful activity level); see also Russo v.
Astrue, 421 Fed. Appx. 184, 189 (3d Cir. 2011)(citing 20 C.F.R. §404.1571).
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Moreover, while it is true, as plaintiff now asserts, that sporadic and transitory activities
of daily living cannot be used to show an ability to engage in substantial gainful activity,see
Fargnoli. 247 F.3d at 40, n.5, the ALl did not do so here. Instead, the ALl properly considered
plaintiffs allegations in light of not only her activities of daily living but also in light of the
objective medical evidence, which revealed the absence of clinical findings supporting
plaintiffs allegations of totally debilitating symptoms, as well as the other factors discussed in
depth in the ALl's decision. Based on all of the evidence, the ALl found plaintiffs statements
to be not entirely credible.
It also is important to emphasize that the ALl did not reject plaintiffs testimony

entirely. Rather, to the extent plaintiff s statements as to the limitations arising from her
impairments are supported by the medical and other relevant evidence, the ALl's residual
functional capacity finding accommodated those limitations. Only to the extent that plaintiff's
allegations are not so supported did the ALl find them to be not credible.
The record demonstrates that the ALl adhered to the appropriate standards in evaluating
plaintiffs credibility and it is not this court's function to re-weigh the evidence and arrive at its
own credibility determination. Rather, this court must only determine whether the ALl's
credibility determination is supported by substantial evidence and is satisfied that it is.
Plaintiff s remaining argument is that the ALl improperly relied on the vocational
expert's response to a hypothetical question incorporating the ALl's residual functional
capacity finding, which, she contends, failed to account for all of plaintiff s work-related
mental limitations. Upon review, this court is satisfied that the ALl's residual functional
capacity finding and resultant hypothetical to the vocational expert adequately accommodate all
of plaintiffs mental limitations supported by the record.
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Residual functional capacity is defined as the most an individual still can do in a work
setting despite the limitations caused by his impairments. Fargnoli, 247 F.3d at 40; 20 C.F.R.
§§404.l545(a)(l) and 416.945(a)(1). Residual functional capacity is an assessment of an
individual's ability to do sustained work-related physical and mental activities in a work-setting
on a regular and continuing basis, which means "8 hours a day, for 5 days a week, or an
equivalent work schedule." SSR 96-8p.
In assessing residual functional capacity, the ALl is to consider all of the relevant
medical and other evidence in the case record in determining the individual's ability to meet the
physical, mental, sensory and other requirements of work. 20 C.F.R. §§404.1545(a)(3)-(4) and
416.945(a)(3)-(4); SSR 96-8p. In regard to mental abilities, the ALl first must assess the
nature and extent of the claimant's mental limitations and restrictions and then determine the
claimant's residual functional capacity for work activity on a regular and continuing basis. 20
C.F.R. §§404.l545(c) and 416.945(c). The ALl's residual functional capacity finding must
"'be accompanied by a clear and satisfactory explication of the basis on which it rests.'"
Fargnoli, 577 F.3d at 41 (citation omitted).
The ALl adhered to the foregoing standards in this case. First, he identified plaintiffs
functional limitations and restrictions and then assessed her work-related abilities as to those
functions affected by those restrictions, including those set forth in 20 C.F.R. §416.945(b), (c)
and (d). The ALl then incorporated into his residual capacity finding all restrictions on
plaintiffs functional abilities arising from her impairments that are supported by the record. (R.
20-25). The ALl's residual functional capacity assessment complies with the requirements of
SSR 96-8p and the applicable regulations.

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Although plaintiff now argues that the ALJ failed to account for a number of limitations
arising from her mental impairments, including limitations in her ability to concentrate, deal
with work stressors, function independently, carry out job instructions, behave in an
emotionally stable manner, and demonstrate reliability, the ALJ in fact did accommodate those
limitations by restricting her to jobs that require, inter alia, only simple instructions and simple,
routine tasks, only occasional and superficial interaction with co-workers and the public, and a
low stress work environment, which he defined as "no production rate pace work, but, rather,
goal oriented work with only occasional and routine change in work setting." (R. 20).
The court is satisfied that the ALJ's residual functional capacity finding in this case is
supported by substantial evidence as outlined in the decision and that the ALl's hypothetical to
the vocational expert incorporating that residual functional capacity finding adequately
accounts for all of plaintiff s mental and physical limitations that are supported by the objective
evidence. Podedwomy v. Harris, 745 F.2d 210 (3d Cir. 1984)(RFC and hypothetical to the
vocational expert must reflect only those impairments and limitations supported by the record).
Accordingly, the vocational expert's response to that hypothetical indicating that, despite those
restrictions, plaintiff retains the ability to perform the identified light jobs, constitutes
substantial evidence supporting the ALJ's finding that plaintiff is not disabled.
After carefully and methodically considering all of the medical evidence of record and
plaintiff s testimony, the ALJ determined that plaintiff is not disabled within the meaning of
the Act. The ALl's findings and conclusions are supported by substantial evidence and are not
otherwise erroneous. Accordingly, the decision of the Commissioner must be affirmed.

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Gustave Diamond
United States District Judge

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cc:

Thomas A. Burkhart, Esq.
Lewis and Ristvey, P.C.
689 N. Hermitage Road
P.O. Box 1024

Hermitage, P A 16148

Christy Wiegand

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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