NAVIGLIA v. COLVIN

Filing 15

MEMORANDUM AND ORDER OF COURT denying 11 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. Signed by Judge Gustave Diamond on 9/9/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LOUIS J. NAVIGLIA,
Plaintiff,
v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 15-660

MEMORANDUM AND ORDER OF COURT
AND NOW, this

~day of September, 2016, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiffs request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs application for
disability insurance benefits under Title II ofthe Social Security Act ("Act"), IT IS ORDERED that
the Commissioner's motion for summary judgment (Document No. 13) be, and the same hereby
is, granted and plaintiffs motion for summary judgment (Document No. 11) be, and the same
hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of
the facts and evidence of record and may rej ect or discount any evidence if the ALJ explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999). Where the ALJ's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALJ's
decision here because the record contains substantial evidence to support the ALJ's findings and
"""A072
(Rev. 8/82)

conclusions.

Plaintiff protectively filed his pending application for disability insurance benefits on May
30, 2013, alleging a disability onset date of March I, 2013, solely due to neck and back pain.
Plaintiffs application was denied initially. At plaintiff s request an ALl held a hearing on
September 12,2014, at which plaintiff, represented by counsel, appeared and testified. On October
24,2014, the ALl issued a decision finding that plaintiff is not disabled. On March 2S, 201S, the
Appeals Council denied review making the ALl's decision the final decision ofthe Commissioner.
Plaintiff was 64 years old at the time of the ALl's decision and is classified as a person
of advanced age under the regulations. 20 C.F.R. §404.IS63(e). He has a college education
and has past relevant work experience as a software engineer, software developer and insurance
agent, but he has not engaged in any substantial gainful activity since his alleged onset date.
After reviewing plaintiffs medical records, hearing testimony from plaintiff and
considering a vocational expert's answers to written interrogatories, the ALl concluded that
plaintiff is not disabled within the meaning of the Act. The ALl found that although plaintiff
has the severe impairments of degenerative disc disease of the cervical and lumbar spine, L4-LS
spondylolisthesis, cervical stenosis at C4-CS, CS-C6 and C6-C8 and status post cervical
discectomy and fusion, none of those impairments, alone or in combination, meet or equal the
criteria of any of the impairments listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.
The ALl also found that plaintiff retains the residual functional capacity ("RFC") to
engage in work at the sedentary exertionallevel but with numerous restrictions necessary to
accommodate the limitations arising from his impairments. l Comparing plaintiffs residual

<t:>.Aon
(Rev. 8/82)

1
Specifically, the ALJ found that plaintiff has the RFC to perfonn sedentary work with the
following restrictions: he is "limited in the use ofthe bilateral upper extremities to no more than occasional
overhead reaching or unsupported forward extension and no more than occasional fine manual dexterity,
picking, or pinching; limited to no more than incidental postural adaptation (i.e., stoop, kneeling, crouch,
crawl, or balance), and no climbing of ladders, ropes, or scaffolds; precluded from all exposure to hazards
such as unprotected heights and dangerous machinery; afforded a discretionary sit/stand option; and is

- 2 ­

functional capacity with the physical and mental demands of his past relevant work, and in
reliance on the vocational expert's interrogatory responses, the AL] found that plaintiff is
capable of performing all of his past jobs as they actually and generally are performed. (R. 26).
Accordingly, the ALJ concluded at step 4 of the sequential evaluation process 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)(1)(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).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability? 20 C.F.R.
§404.1520. 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's sole argument on appeal is that the ALJ erred in failing to acknowledge
or evaluate plaintiff's complaints of urinary incontinence. Plaintiff alleges that the ALJ should

relegated to tasks entailing no more than occasional movement of the head or neck throughout a full range
of cervical flexion, extension, or rotation, with incidental being defined at all times herein as totaling up
to but not more than 116 of a routine work shift." (R. 22-23).
2 The AU must determine: (I) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §404.1520; Newell v. Commissioner of Social
Security, 347 F.3d 541, 545 (3d Cir. 2003).
~A072

(Rev. 8/82)

-

3 ­

have made a detennination as to whether urinary incontinence was a severe impainnent at step
2, and that he should have considered additional limitations resulting from urinary incontinence
in assessing plaintiffs residual functional capacity. Upon review, the court is satisfied that the
ALJ committed no reversible error by not addressing plaintiffs allegations of urinary
incontinence, and that the ALl's finding of not disabled is supported by substantial evidence.
During the entire course of the administrative proceedings in this case, plaintiff alleged
disability exclusively on the basis ofimpainnents and pain of the back and neck. At no point
did plaintiff ever assert disability because of urinary incontinence. Upon his evaluation of all
of the evidence, the ALJ entered an unfavorable decision finding that plaintiff is not disabled
because of his back and neck impainnents and pain. Plaintiff does not raise a single challenge
to the ALJ's evaluation of the evidence or conclusions relating to those impainnents.
Instead, plaintiff now alleges that the ALJ erred by failing to consider isolated
references in the record indicating that plaintiff intennittently complained to medical treatment
providers of urinary incontinency or changes in urinary urgency and frequency. (R. 310-316;
492-98; 503; 588; 595). At the hearing before the ALJ, in discussing what difficulties he was
encountering following his back surgery, plaintiff briefly alluded to urinary leaking ifhe sits
"for a long period of time." (R. 37; 40). Plaintiff seeks a remand for consideration of this
"impainnent." The court finds that a remand would not be appropriate in this case.
"Disability" under the regulations is defined as "the inability to do substantial gainful
activity by reason of any medically detenninable physical or mental impainnent." 20 C.F.R.
§404.1505. By its basic definition an impainnent means "a medically detenninable
impainnent" and therefore it "must result from anatomical, physiological or psychological
abnonnalities which can be shown by medically acceptable clinical and laboratory diagnostic
~A072

(Rev. 8/82)

- 4 ­

techniques." 20 C.F .R. §404.1508. An impairment must be established by medical evidence
"consisting of signs, symptoms and laboratory findings," not merely a claimant's statement of
symptoms. rd.
As an initial matter, it is not even clear whether plaintifr s urinary incontinence even
constitutes an "impairment" under the regulations. As the Commissioner points out, diagnostic
tests administered upon plaintifr s complaints of increases in urinary urgency and frequency
and urinary incontinence revealed normal findings. On March 5, 2012, Dr. Frank Brown
reported that plaintifrs urinalysis was negative and his prostate-specific antigen ("PSA") level
was normal. (R.588). Dr. Brown's records from December 13,2013, also noted occasional
leaking of urine but plaintiff did not have a distended bladder. (R. 492-98). Plaintiff was
treated only with medication. On January 24,2014, plaintifrs cystoscopy examination
returned normal results. (R. 489-91).
Even if plaintifrs urinary incontinence could be deemed an impairment under the
regulations, however, it is well settled that disability is not determined merely by the presence
of an impairment, but by the effect that impairment has upon the individual's ability to perform
substantial gainful activity. Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). Here,
plaintiff cannot show that his urinary incontinence resulted in any specific work-related
limitations. Accordingly, the ALl's failure to consider it at step 2 in this case would amount to
nothing more than harmless error.
At step two of the sequential evaluation process, the ALJ must determine whether the
claimant has a "severe medically determinable physical ... impairment that meets the duration
requirement .... " 20 C.F .R. §404.1520(a)(4)(ii). An impairment is "severe" if it "significantly
limits your physical or mental ability to do basic work activities." 20 C.F.R. §404.1520(c).
'I'IoA072
(Rev 8/82)

-

5 ­

The duration requirement mandates that the severe impairment "must have lasted or must be
expected to last for a continuous period of at least 12 months." 42 U.S.C. §423(d)(1)(A); see
also 20 C.F.R. §404.1S09.

The step two inquiry is a de minimus screening device and, if the evidence presents
more than a slight abnormality, the step two requirement of severity is met and the sequential
evaluation process should continue. Newell, 347 F.3d at 546. The claimant bears the burden at
step 2 of establishing that an impairment is severe. See McCrea v. Commissioner of Social
Security, 370 F.3d 357, 360 (3 rd Cir. 2004).
Here, while not an exacting one, it nevertheless was plaintiff s burden to show that he
had a medically determinable urinary impairment that would result in more than a de minimus
effect on his ability to perform basic work functions. He did not meet that burden. Although
plaintiff testified that he leaks urine after he sits for a long period of time, (R. 37), there is no
evidence indicating that his incontinence would effect his ability to perform basic work
functions. Accordingly, the court finds no error in the ALl's failure to consider plaintiffs
urinary incontinence at step 2.
It also is important to note that the ALl did not deny plaintiffs claim at step 2. McCrea,
370 F.3d at 360-61 (the Commissioner's determination to deny a claim at step 2 "should be
reviewed with close scrutiny" because step 2 "is to be rarely utilized as a basis for the denial of
benefits".) Instead, the ALl considered the impact of all of plaintiff's medically determinable
impairments, severe and not severe, on plaintiffs residual functional capacity and found
plaintiff not disabled at step 4. In reviewing the medical evidence, it is clear that the ALl
considered all ofthe records containing any isolated references to urinary incontinence and
found no additional limitations that would result therefrom. Accordingly, the ALl's failure to
""'A072
(Rev. 8/82)

- 6 ­

consider urinary incontinence at step 2 had no effect on the ultimate determination of
non-disability.
Similarly, plaintiffs argument that the ALl's residual functional capacity findini failed
to account for additional work-related limitations arising from his urinary incontinence
likewise is without merit, as any additional limitations simply were not supported by the
objective medical evidence. 4
The court is satisfied that the ALl'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
accounted for all of plaintiffs limitations that were supported by the objective evidence.

3 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. §404.1S4S(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 AU 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 ofwork.
20 C.F.R. §404.lS4S(a)(3)-(4); SSR 96-8p. The AU'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 om itted).

The only evidence that plaintiff offers in support ofadditional limitations arising from urinary
incontinence is a report from Dr. Patrick Smith suggesting that plaintiffs symptoms, including pain and
intermittent urinary incontinence, would impact plaintiffs ability to maintain concentration or work pace
on even simple, routine tasks for 85% ofthe day. (R. 715). However, this report was presented for the first
time to the Appeals Council and cannot be considered by this court on substantial evidence review. Nor
is plaintiff entitled to a remand for consideration of this report. When a claimant proffers evidence in the
district court that previously was not presented to the AU, the district court's determination of whether to
remand to the Commissioner is governed by Sentence 6 of §40S(g) of the Act. See Matthews v. Apfel, 239
F.3d 589, 593 (3d Cir. 2001). Sentence 6 permits remand "only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding." See also Szubak v. Secretary of Health & Human Services, 745 F.2d 831,833 (3d
Cir. 1984). "[A] claimant must satisfy all three requirements of Sentence 6 (new, material and good cause)
in order to justify a remand." Matthews at 594; Szubak at 833. Plaintiff cannot show that Dr. Smith's
report is new or material, nor has he even attempted to show good cause for not presenting it to the ALI
Plaintiff offers no explanation as to why this evidence could not have been presented to the AU since it
is based on Dr. Smith's treatment of plaintiff since 2012, and otherwise it is not material because his
opinion that plaintiff would be offtask 85% ofthe time is not supported by any objective medical evidence.
4

~A072

(Rev 8/82)

- 7 ­

Podedworny 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 can perform all of his past relevant work, constitutes substantial evidence
supporting the ALJ's step 4 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.

k~
Gustave Diamond
United States District Judge

cc:

Michael V. Quatrini, Esq.
Quatrini Rafferty, P.C.
550 East Pittsburgh Street
Greensburg, PA 15601
Paul Kovac

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

'Ilt.AOn

(Rev. 8/82)

- 8 ­