SIRCELY v. BERRYHILL

Filing 17

ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 11/5/18. (cha)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIE LYN SIRCELY,

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Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-1358

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Julie Lyn Sircely (“Sircely”) brings this action pursuant to 42 U.SC. §
405(g) for review of the ALJ’s decision denying her claim for supplemental security
income (“SSI”) benefits.2 She alleges a disability beginning on at least the date of the
filing of her SSI application – December 17, 2013.3 Following a hearing before an ALJ,
during which time both Sircely and a vocational expert (“VE”) testified, the ALJ denied
her claim. (R. 11-36) Sircely appealed. Pending are Cross Motions for Summary
Judgment. See ECF docket nos. [13] and [15].
Legal Analysis
1. Standard of Review

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.
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Sircely applied for disability insurance benefits as well but the ALJ denied that claim. Sircely represents that she
does not appeal that denial. See ECF Docket No. 14, p. 1, n. 1.
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Sircely alleges disability beginning on April 9, 1998 but, in light of the ALJ’s decision, now contends that “she has
been disabled since at least the filing date of her SSI application and that she has been entitled to SSI benefits in
connection therewith.” See ECF Docket No. 14, p. 1, n.1.

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The standard of review in social security cases is whether substantial evidence
exists in the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d
37, 39 (3d Cir. 1989). Substantial evidence has been defined as 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). Determining whether substantial evidence exists is
“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.
1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of
evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,
a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence – particularly certain types of evidence (e.g., that
offered by treating physicians).” Id. The Commissioner’s findings of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606
F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo review of the
Commissioner’s decision or re-weigh the evidence of record. Palmer v. Apfel, 995
F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by
substantial evidence, a court is bound by those findings, even if the court would have
decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. §706.
To be eligible for social security benefits, the claimant must demonstrate that he
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

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lasted or can be expected to last for a continuous period of at least 12 months. 42
U.S.C. § 423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). The
Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. § 404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity;
(2) if not, whether the claimant has a severe impairment; (3) if the claimant has a severe
impairment, whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P,
appx. 1; (4) if the impairment does not satisfy one of the impairment listings, 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, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. § 404.1520. The claimant
carries the initial burden of demonstrating by medical evidence that he is unable to
return to his previous employment (steps 1-4). Dobrowolsky, 606 F.2d at 406. Once the
claimant meets this burden, the burden of proof shifts to the Commissioner to show that
the claimant can engage in alternative substantial gainful activity (step 5). Id. A district
court, after reviewing the entire record, may affirm, modify, or reverse the decision with
or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d
210, 221 (3d Cir. 1984).
2. The ALJ’s Analysis
At step one, the ALJ found that Sircely had engaged in substantial gainful activity
through December 2001. (R. 13-14) Specifically, she determined that Sircely had
reported earnings of $19,724.31 in 2000 and $18,320.59 in 2001. (R. 13) Because

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those amounts exceeded the levels for substantial gainful activity in those years, she
was, in effect, not disabled. (R. 13) Although Sircely did post earnings from the same
employer in 2002, those earnings did not rise to the level of substantial gainful activity.
At step two, the ALJ determined that, as of May 17, 2017, Sircely had the
following severe impairments: disorders of the back (discogenic and degenerative) and
left hip pain. (R. 14) The ALJ reviewed medical records indicating that Sircely
complained of anxiety and panic attacks beginning in 2007, the ALJ noted that “[n]o
clinical indices of anxiety or panic [attacks] were documented….” (R. 14) As such, the
ALJ found no severe mental impairments. (R. 14)
At step three, the ALJ concluded that Sircely does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpt. P, Appendix 1. The ALJ gave special
consideration “to all of the claimant’s musculoskeletal complaints in accordance with the
revised musculoskeletal Listings.” (R. 15) The ALJ also considered the combined
effects of Sircely’s obesity with her other impairments. (R. 15)
Prior to engaging in step four, the ALJ assessed Sircely’s residual functional
capacity (“RFC”).4 The ALJ found Sircely able to perform light work with certain
limitations. (R. 15-35)

“RFC” refers to the most a claimant can still do despite his / her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a).
The assessment must be based upon all of the relevant evidence, including the medical records, medical source
opinions, and the individual’s subjective allegations and description of his / her limitations. 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3). Additionally, a person’s RFC is an administrative finding reserved for the ALJ, not a
medical opinion to be rendered by a doctor. 20 C.F.R. §§ 404.1527, 416.927; 20 C.F.R. §§ 404.1546(c), 416.946(c).
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At step four, the ALJ determined that Sircely is able to perform her past relevant
work as a telemarketer. (R. 35) Such work is categorized as sedentary in exertional
level and semi-skilled. As such, it is within Sircely’s RFC. (R. 35)
The ALJ made an alternate finding at the fifth step of the analysis. Specifically,
the ALJ concluded that, considering Sircely’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that she
can perform. (R. 35-36) For example, Sircely would be able to perform the requirements
of representative occupations such as a ticket seller, an order caller, and a photocopy
operator. (R. 36) Consequently, the ALJ concluded that Sircely has not been under a
disability, as defined in the Social Security Act, since the date of the alleged onset of
disability. (R. 36)
3. Substantial Evidence Supports the ALJ’s Decision
Sircely takes issue with the ALJ’s decision based upon her contention that the
ALJ’s denial of benefits was based upon the “Plaintiff’s alleged non-compliance with
treatment and treatment recommendations.” See ECF Docket No. 14, p. I find Sircely’s
argument to be unconvincing. Noncompliance is relevant to assessing credibility. See
Krykewycz v. Berryhill, Civ. No. 17-821, 2018 WL 3062559, * 11 (D. Del. June 21, 2018)
(stating that, “[p]ersistent attempts to obtain pain relief, increasing medications, trials of
different types of treatment, referrals to specialists, or changing treatment sources may
indicate that the symptoms are a source of distress and generally support a claimant’s
allegations. An applicant’s claims, however, may be less credible if the level of
frequency of treatment is inconsistent with the level of complaints, or if the medical
reports or records show noncompliance with prescribed treatment.”) Bosko v. Berryhill,

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Civ. No. 17-277, 2018 WL 1508958, at *1, n.1 (W.D. Pa. March 27, 2018) (noting the
same).
Here, the ALJ noted that, on numerous occasions, Sircely’s allegations of pain
and limitation were at odds with her noncompliance. (R. 14) (stating that “a]lthough
provided with another psychiatric referral, the claimant was again noncompliant with
following up on the referral.”); (R. 15) (stating that, “[a]lthough prescribed physical and
occupational therapies and instructed to follow up with an orthopedic specialist, there
are no records in evidence to document that the claimant complied with those
instructions.”); (R. 17) (stating that, “[a]dditionally, even beginning in May 2007, medical
evidence shows the claimant continued her pattern of seeking only intermittent
treatment for her complaints. Medical records also documented persistent
noncompliance with prescribed treatment and medical referrals.”); (R. 18) (noting that,
“[a]lthough discharged to outpatient orthopedic follow-up, there is no objective medical
evidence in record that the claimant complied with that follow-up or that she sought or
received any additional medical treatment prior to returning to the family doctor in
September.”); (R. 19) (stating that, “[w]hile providing her with another orthopedic
referral, the family doctor specifically noted that the claimant had been provide[d] with
two prior referral[s], but had failed to follow up and see the orthopedic specialist. The
claimant, however, continued her pattern of noncompliance with the orthopedic
referral.”); (R. 19) (stating,” [d]espite her allegations of pain, the claimant continued her
pattern of seeking treatment only intermittently and failing to comply with prescribed
treatment and referrals for specialized evaluation.”); (R. 20) (stating that, “[r]ecords from
the family doctor clearly documented the claimant’s persistent noncompliance with the

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orthopedic referrals. Her allegation of seeking treatment at a pain clinic but leaving due
to an extended wait was uncorroborated by any objective medical evidence in the
record. The claimant admitted her persistent noncompliance with physical therapy,
initially reporting she was ‘not interested’ in that treatment, then revising her response,
alleging it was difficult to leave her house due to pain.”); (R. 21) (finding that, “[t]he
claimant also failed to comply with prescribed physical therapy.”); (R. 23) (observing
that, “[d]espite her agreement to be ‘totally compliant’ with prescribed treatment in order
to obtain further partial temporary disability, the claimant failed to do so.”); (R. 24)
(stating that, “[a]lthough instructed to start buddy tapping the finger and start physical
therapy, there is no objective medical evidence in the record that the claimant complied
with either medical instruction.”); (R. 28) (referring to a May 2015 ER visit and noting,
“[t]he claimant was noncompliant with seeking orthopedic follow-up.”); (R. 33) (finding
that, the “[m]edical evidence, as discussed, does not support the claimant’s allegation of
disability. Rather, medical evidence in [the] record shows a pervasive pattern of very
infrequent treatment, as well as persistent noncompliance with prescribed treatment and
medical referrals.”)
Additionally, it is clear that noncompliance was only a part of the ALJ’s
assessment of Sircely’s credibility. She also considered the frequency of her treatment,
noting that the infrequency of her treatment was at odds with her allegations concerning
the intensity, persistence and limiting effects of her impairments. (R. 33) See also, (R.
16) (“There is no objective medical evidence in the record that she sought or received
any further medical treatment for any compliant until January, 2004, over five years
later.”); (R. 23) (“The claimant did not have any documented medical treatment after

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January 2012 until January 2013, a year later. The lack of any documented medical
treatment whatsoever for such an extended period appears most inconsistent with her
allegations in testimony of constant, severe pain.”); (R. 27) (“There is no objective
evidence in [the] record that the claimant sought any further medical treatment for her
back, hip, or other musculoskeletal complaints until mid-2015, almost 18 months later,
another extended period without treatment that appears inconsistent with her subjective
allegations of constant pain and related functional limitations.”); (R. 28) (“Despite her
complaints and allegations during the consultative exam for disability purposes, the
claimant, as noted did not seek or receive any treatment until May 2015, almost a year
later and over 18 months since her last documented medical treatment.”); and (R. 33)
(“Despite her allegation of having ‘bad’ arthritis and significant, constant pain, a
longitudinal view of the medical evidence beginning in May 2007 shows the claimant
only very intermittently sought medical treatment, often going six months and multiple
times going a year or more between medical follow-ups.”).
Further, even a cursory review of the ALJ’s decision reveals that she devoted
more than twenty (20) pages to reviewing Sircely’s medical records and complaints. In
fact, the ALJ gives an exhaustive discussion of, among other things: Sircely’s April 1998
motor vehicle accident and follow up; complaints in 2004 of low back pain and treatment
resulting therefrom; medical records and treatment beginning in May 2007 relating to
musculoskeletal impairments; physical therapy records beginning in January of 2011; a
Medical Assessment Form from September 2011 in which the family doctor limited
Sircely to performing light / sedentary work only 20 hours per week due to involvement
in physical therapy; January 2012 progress notes specifically noting that the temporary

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disability had been done solely to allow for further treatment and that Sircely had been
noncompliant; January of 2013 records relating to worsening of back pain; November of
2013 orthopedic records and a December of 2013 follow up with the orthopedic hip
specialist and neurologist; the results of a June 2014 consultative exam; records from
an emergency room visit in May of 2015; October 2015 treatments with a pain
specialist; and Sircely’s own testimony. That review is supported by substantial
evidence of record, as detailed in the ALJ’s citations. Consequently, remand is not
required.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIE LYN SIRCELY,
Plaintiff,
-vsNANCY A. BERRYHILL,5
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-1358

AMBROSE, Senior District Judge.

ORDER OF COURT
Therefore, this 5th day of November, 2018, it is hereby ORDERED that the
decision of the ALJ is affirmed. It is further ORDERED that Plaintiff’s Motion for
Summary Judgment (Docket No. 13) is DENIED and Defendant’s Motion for Summary
Judgment (Docket No. 15) is GRANTED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

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