BASINGER v. BERRYHILL

Filing 17

ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/5/19. (cha)

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

BRANDI L. BASINGER,

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

Civil Action No. 17-1613

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Brandi L. Basinger (“Basinger”) brings this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) for review of the ALJ’s decision denying her claim for a period
of disability, disability insurance benefits (DIB), and supplemental security income
(“SSI”). She alleges a disability beginning on December 6, 2013. (R. 15).1 Following a
hearing before an ALJ, during which time both Basinger and a vocational expert (“VE”)
testified, the ALJ denied her claim.
Specifically, the ALJ determined that Basinger had not engaged in substantial
gainful activity since the alleged onset date. (R. 17) The ALJ also concluded that
Basinger suffered from numerous severe impairments. (R. 17-18)2 Basinger’s

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The ALJ determined that Basinger met the insured status requirements for the Social Security Act through
September 30, 2016. (R. 17)
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The ALJ found that Basinger had the following severe impairments: obesity, osteoarthritis and avascular necrosis
of the left knee; avascular necrosis affecting the right distal femur and history of right meniscus tear, status post two
surgeries; and asthma. (R. 17-18)

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impairments, or any combination thereof, did not meet or equal any listed impairment.
(R. 19) Concluding that Basinger was capable of performing sedentary to light work
subject to certain restrictions, the ALJ determined that she had no past relevant jobs but
was able to perform jobs that exist in significant numbers in the national economy. (R.
19-24)
Basinger has appealed the denial of her claim. Pending are Cross Motions for
Summary Judgment. See ECF Docket Nos. (13) and (15). For the reasons set forth
below, the ALJ’s decision is affirmed.
Legal Analysis
1. Standard of Review
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

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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
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

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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. Dr. Ari Pressman
Dr. Pressman served as Basinger’s treating orthopedic specialist. Following
continued difficulty with her knees, Basinger was referred for a functional capacity
evaluation at Laurel Highlands Health Center. Thomas Buches, the physical therapist,
evaluated Basinger and concluded in part that she “may be a candidate for sedentary
work that does not have her bearing weight on her knees excessively or work at counter
level or above with opportunities to rest as knee pain dictates.” (R. 553) Pressman, in
turn, reviewed Buches’s evaluation and wrote to Basinger’s attorney in connection with
a Workers’ Compensation case. He opined:
I have now had the opportunity to review the Functional Capacity Evaluation that
I requested. This was performed by Laurel Highlands Health Center on May 27,
2016. On the basis of this Functional Capacity Evaluation I agree with you that
Brandi Basinger would be unable to perform in the capacities required as a
nurse’s aide. You have not yet provided me with the formal work requirements for
that position, but on the basis of my understanding of that position I would tend to
agree with your thoughts.

(R. 557)
The ALJ gave Pressman’s opinion “little weight” because “the ability to perform a
specific job is outside the physician’s area of expertise.” (R. 23) The ALJ found
Pressman’s assessment to lack probative value “because he has not offered any
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specific functional limitations, but rather has offered an opinion that the claimant cannot
perform past relevant work, a finding exclusively reserved to the Commissioner.” (R. 23)
Basinger takes issue with the weight the ALJ gave Pressman’s opinion. According to
Basinger, “Dr. Pressman has clearly adopted the findings of the Functional Capacity
Evaluation in rendering his opinions as to the Claimant’s employability.” See ECF
Docket No. 14, p. 8. Basinger urges that, if the ALJ had evaluated Pressman’s opinion
properly, his RFC hypothetical would have been different and he would have rendered a
finding of “Disabled.”
Basinger’s objections are unconvincing. The ALJ did, in fact, give “substantial
weight” to the physical therapist’s functional capacity evaluation upon which Pressman’s
opinion is based. (R. 22) The ALJ noted that, “[i]t appears from the assessment that,
subsequent to surgery and physical therapy, the claimant retains the ability to lift
weights, but she could not perform a full range of light work activities because she
would be unable to stand and walk the majority of the day as would be required in a
light residual functional capacity.” (R. 22) The ALJ interpreted the evaluation to mean
that Basinger’s “ability to stand and walk is more akin to a sedentary residual functional
capacity, and she would require the opportunity to change between sitting and standing
at regular intervals.” (R. 22)
As such, the ALJ did, in fact, give substantial weight to the functional capacity
evaluation and the limitations stated therein. The ALJ also gave weight to the opinion of
the consultative examiner who opined that Basinger could complete an eight-hour
workday if given the option of alternating between sitting, standing, and walking. (R. 21,

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395) Basinger has not identified any error in this capacity. Consequently, I find no basis
for remand.

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

BRANDI L. BASINGER,
Plaintiff,

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)
)
)
)
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)
)
)
)

-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Action No. 17-1613

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 5th day of December, 2019, 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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