PECK v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

ORDER denying 10 plaintiff's Motion for Summary Judgment; granting 13 defendant's Motion for Summary Judgment. Signed by Magistrate Judge Robert C. Mitchell on 07/25/2018. (Mitchell, Robert)

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

ROSEMARY P.,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,

Defendant,

2:18-cv-33

MEMORANDUM and ORDER

Presently before the Court for disposition are cross motions for summary judgment. For the
reasons set forth below, the defendant’s motion (ECF No. 13) will be granted, the plaintiff’s
motion (ECF No. 10) will be denied, and the decision of the Commissioner will be affirmed.
On January 8, 2018, Rosemary P. by her counsel, filed a complaint pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the
Commissioner's final determination disallowing her claim for a period of disability or for
disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as
amended, 42 U.S.C. §§416(i) and 423.
On September 27, 2014 the plaintiff filed an application for disability benefits alleging that
she had been disabled since August 12, 2014 (R.142-143) and benefits were denied on January
15, 2015 (R.85-89). On January 28, 2015, the plaintiff requested a hearing (R.90-91) and
pursuant to that request a hearing was held on December 1, 2016 (R.32-67). In a decision dated
1

May 9, 2017, benefits were denied (R.12-27) and on May 12, 2017, reconsideration was
requested (R.139-140). Upon reconsideration and in a decision dated November 24, 2017, the
Appeals Council affirmed the prior determination (R.1-3). On January 8, 2018, the instant
complaint was filed.
In reviewing an administrative determination of the Commissioner, the question before any
court is whether there is substantial evidence in the agency record to support the findings of the
Commissioner that the plaintiff failed to sustain his burden of demonstrating that he was disabled
within the meaning of the Social Security Act.
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive....

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Johnson v. Comm'r., 529 F.3d
198 (3d Cir.2008) and the court may not set aside a decision supported by substantial evidence.
Hartranft v. Apfel, 181 F.3d 358 (3d Cir.1999).
At the hearing held on December 1, 2016, (R.32-67), the plaintiff appeared with counsel
(R.34) and testified that she was fifty-four years old (R. 34), that she worked for twenty-five
years as a dental assistant but the job became too strenuous (R.38-39) and that she last worked in
November 2015 as a shoe salesperson (R.37).
In addition, the plaintiff testified that she has fibromyalgia (R.40); that she experiences
chronic pain all over her body (R.41); that she has very poor memory or concentration ability
and forgets what she is doing (R.42,54,56); that she sustained whiplash in a car accident (R.45);
2

that she suffers from depression and does nothing for about a week every three or four months
(R.47), and that she experiences irritable bowel syndrome (R.51). The plaintiff also testified that
she receives some relief from Oxycontin (R.41); that she is receiving mental health care (R.43);
that she can stand or walk for less than an hour (R.43-44); that she cannot carry anything heavy
(R.44); that she sometimes walks with a cane (R.46), and that she uses a TENS unit once or
twice a week (R.55).
At the hearing a vocational expert was also called upon to testify (R.60-65). The witness
classified the plaintiff’s prior work as unskilled to skilled light work (R.60). When asked to
assume an individual of the plaintiff’s age, education and work history who was limited to
performing light work who must work in a static, low stress environment that involves only
simple decisions, he testified that the such a person could not perform the plaintiff’s past work
but that there were a large number of other jobs such an individual could perform (R.60-61, 64).
However, if the individual had to be reinstructed for every shift, he testified that such an
individual could not be employed (R.63).
The issue before the Court for immediate resolution is a determination of whether or not
there is substantial evidence to support the findings of the Commissioner that the plaintiff was
not disabled within the meaning of the Act.
The term "disability" is defined in 42 U.S.C. Section 423(d)(1)(A) as:
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
which has lasted or can be expected to last for a continuous period of not less than 12
months...
For purposes of the foregoing, the requirements for a disability determination are provided in
42 U.S.C. Section 423(d)(2)(A):

3

An individual shall be determined to be under a disability only if his physical or mental
impairment or impairments are of such severity that he 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. For purposes of the
preceding sentence ... "work which exists in the national economy" means work which exists
in significant numbers either in the region where such individual lives or in several regions of
the country.

A "physical or mental impairment" is "an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions
are also applied for purposes of establishing a period of disability. 42 U.S.C. Section
416(i)(2)(A).
While these statutory provisions have been regarded as "very harsh," nevertheless, they must
be followed by the courts. NLRB v. Staiman Brothers, 466 F.2d 564 (3d Cir. 1972); Choratch v.
Finch, 438 F.2d 342 (3d Cir. 1971); Woods v. Finch, 428 F.2d 469 (3d Cir. 1970). Thus, it must
be determined whether or not there is substantial evidence in the record to support the conclusion
of the Commissioner that the plaintiff was not disabled within the meaning of the Social Security
Act.
For this purpose, certain medical evidence was reviewed.
In a report of an eye examination conducted on November 1, 2013, no impairments were
noted although eye-glasses were prescribed (R.247-253).
The plaintiff was treated at the Center for Behavioral Medicine between May 30, 2008 and
May 2, 2014 where a diagnosis of depression and bi-polar disorder was made (R.254-280).
The plaintiff was treated on September 15, 2014 by Dr. Thaddeus A. Osial, Jr. who
diagnosed myalgia and myositis (R.281-289).
4

The plaintiff was treated between December 31, 2013 and September 19, 2014 for weakness
and dehydration (R.297-326).
The plaintiff was treated on September 26, 2014 for lumbar and knee pain. Pain medication
was prescribed (R.290-296).
The plaintiff was treated at St. Margaret Hospital between May 30, 2013 and October 4, 2014
for abdominal pain with pancreatitis and chronic constipation (R.327-366).
In a report of a consultative evaluation conducted on December 17, 2014 by Tammy
Fronzaglia, Ph.D., average intellectual function and an unspecified depressive disorder were
noted. Specifically, she wrote “the results of the present evaluation appear to be consistent with
psychiatric problems, but in itself this do[es] not appear to be significant enough to interfere with
the claimant’s ability to function on a daily basis.” The prognosis was guarded and any
impairments were said to be mild (R.375-384).
The plaintiff attended Westarm physical therapy between October 27, 2015 and November
25, 2015 for treatment of pelvic pain, muscle weakness, voiding dysfunction and constipation
(R.397-411).
In an April 7, 2016 report from the UPMC centers for rehab services a mild cognitive
impairment was noted (R.385-396).
The plaintiff was treated at Monroeville Surgery between December 15, 2014 and May 16,
2016 for lumbar spinal pain with radicular pain. Epidural anesthetic/steroids were injected
(R.412-476).
In a report of a work assessment dated May 20, 2016, it is noted that the plaintiff has an
“excellent understanding of employer expectations and the attitudes needed to succeed in the
work of work” (R.237-246).

5

The plaintiff received treatment at Advanced Pain Medicine between November 10, 2014
and August 22, 2016 for lumbar spinal pain. Medication was prescribed (R.477-554).
The plaintiff was treated at the Deer Lakes Medical center for unspecified fatigue between
August 1, 2014 and October 5, 2016 (R.555-614).
In a physical capacity evaluation conducted on October 17, 2016, the physician’s assistant
observed that the plaintiff was able to perform sedentary work but also noted that on more than
four days a month she would be unable to complete an eight hour work shift (R.628-629).
The plaintiff was treated by Dr. Patterson between June 5, 2014 and August 31, 2016 for
dysthymia. Medication was prescribed. In a mental status evaluation completed on November
17, 2016, the doctor noted that the plaintiff often had difficulty managing stress, maintaining
concentration and carrying out simple routine tasks as well as occasionally having difficulty
maintaining daily living and interaction with coworkers (R.615-627, 630-631).
In a report of a neuropsychological evaluation including comprehensive testing conducted
between December 7, 2016 and December 27, 2016, Matthew Page, Ph.D. diagnosed a major
recurrent depressive disorder and a generalized anxiety disorder. Although detailed testing was
conducted no conclusion as to employability was made (R.632-647).
In reviewing a disability claim, in addition to considering the medical and vocational
evidence, the Commissioner must consider subjective symptoms. Baerga v. Richardson, 500
F.2d 309 (3d Cir. 1974). As the court stated in Bittel v. Richardson, 441 F.2d 1193, 1195 (3d
Cir. 1971):
Symptoms which are real to the claimant, although unaccompanied by
objective medical data, may support a claim for disability benefits,
providing, of course, the claimant satisfies the requisite burden of proof.
In Good v. Weinberger, 389 F. Supp. 350, 353 (W.D. Pa. 1975), the Court stated:

6

Bittel seeks to help those claimants with cases that so often fall within the spirit--but not
the letter--of the Act. That plaintiff did not satisfy the factfinder in this regard, so long as
proper criteria were used, is not for us to question.
The applicable regulations require more explicit findings concerning the various vocational
facts which the Act requires to be considered in making findings of disability in some cases. The
regulations, published at 20 C.F.R. §§404.1501, et seq., set forth an orderly and logical
sequential process for evaluating all disability claims. In this sequence, the Administrative Law
Judge must first decide whether the plaintiff is engaging in substantial gainful activity. If not,
then the severity of the plaintiff's impairment must be considered. If the impairment is severe,
then it must be determined whether he meets or equals the "Listings of Impairments" in
Appendix 1 of the Regulations which the Commissioner has deemed of sufficient severity to
establish disability. If the impairment does not meet or equal the Listings, then it must be
ascertained whether he can do his past relevant work. If not, then the residual functional
capacity of the plaintiff must be ascertained, considering all the medical evidence in the file. The
finding of residual functional capacity is the key to the remainder of findings under the new
regulations. If the plaintiff's impairment is exertional only, (i.e. one which limits the strength he
can exert in engaging in work activity), and if his impairment enables him to do sustained work
of a sedentary, light or medium nature, and the findings of age, education and work experience,
made by the Administrative Law Judge coincide precisely with one of the rules set forth in
Appendix 2 to the regulations, an appropriate finding is made. If the facts of the specific case do
not coincide with the parameters of one of the rules, or if the plaintiff has mixed exertional and
non-exertional impairments, then the rules in Appendix 2 are used as guidelines in assisting the
Administrative Law Judge to properly weigh all relevant medical and vocational facts.
Based on the evidence presented, the Commissioner concluded:

7

The claimant meets the insured status requirements of the Social Security Act
through March 31, 2020.
The claimant has not engaged in substantial gainful activity since August 12,
2014, the alleged onset date…
The claimant has the following severe impairments: osteoarthritis; degenerative
disc disease; irritable bowel syndrome; rheumatoid arthritis; chronic pain;
fibromyalgia; dysthymia; depression, bipolar disorder and anxiety…
While the claimant alleged cognitive disorder, neuropsychological evaluation
indicated that her concerns with short-term memory likely reflected initial
inattention and encoding difficulty, rather than a disorder in memory retrieval. For
this reason, and because there is a lack of clinical or diagnostic findings relative to
the alleged cognitive disorder, the undersigned finds that it is not a medically
determinable impairment. However, any alleged limitations are appropriately
accommodated in the below residual functional capacity.
The undersigned finds that all other impairments found in the record, alone or in
combination, are nonsevere or not medically determinable because they have been
responsive to treatment, did not require significant medical treatment, have cause
no more than minimally vocationally relevant limitations, have not lasted or are
not expect to last at a “severe” level for a continuous period of 12 months or
expected to result in death, or have not been properly diagnosed by an acceptable
medical source.
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments …
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined ...
except she: can occasionally climb ramps and stairs, but never ladders, ropes and
scaffolds; can frequently balance, stoop, kneel and crouch, but never crawl; is
limited to performing routine, repetitive tasks … must work in a static, low stress
environment that involves only simple decisions and infrequent change, changes
that did not occur would be explained and/or demonstrated and could be learned
in 30 days or less; cannot do work that is fast-paced or has strict production or
time quotas; and can have occasional public interaction…
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
produce the … alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record
…Accordingly, these statements have been found to affect the claimant’s ability

8

to work only to the extent they can reasonably be accepted as consistent with the
objective medical and other evidence…
Physical examinations also documented normal range of motion throughout; no
musculoskeletal tenderness or deformity; no synovitis; no edema; a soft,
nontender, and nondistended abdomen; normal muscle tone and bulk in the upper
and lower extremities bilaterally; normal strength in the upper and lower
extremities bilaterally; normal sensation; normal motor function; normal deep
tendon reflexes; normal coordination; and normal gait and station. While there
were complaints of fatigue and pain by the claimant in the record, she generally
appeared alert and oriented and in no distress upon examination… The record
indicates that the claimant received treatment for the above impairments, which
included therapeutic injections, lumbar facet nerve blocks, lumber rhizotomy, and
[pain] medication … The record further indicates that such treatment resulted in at
least partial symptomatic improvement…
The record also shows diagnoses of dysthymia, depression, bipolar disorder, and
anxiety. At times, mental status examinations documented abnormal affect (flat),
restless motor behavior, mildly impaired recent and remote memory skills, mildly
impaired attention and concentration, poor insight, and fair judgment. However,
mental status examinations also documented normal mood and affect, good
grooming, cooperative behavior, adequate social skills, normal eye contact,
normal speech, normal thought processes (logical and goal-directed), normal
thought content, normal orientation, normal language, intact recent and remote
memory, good attention and concentration, appropriate general fund of
information, and good insight and judgment…
[T]he claimant appears to have underlying medical determinable impairments that
could reasonably cause some symptomatology. However, the pivotal question is
not whether such symptoms exist, but whether those symptoms occur with such
frequency, duration or severity as to reduce the claimant’s residual functional
capacity… to preclude all work activity on a continuing and regular basis. In this
case, the objective evidence fails to document the presence of any impairment or
combination of impairments that could reasonably be expected to result in
symptoms of such a severity or frequency as to preclude the range of work
described above. Rather, the above findings support the residual functional
capacity that has been determined in this decision…
[The daily] activities suggest that the claimant can function within the above
residual functional capacity…The record reflects that the claimant looked for
work during the period under adjudication and went on many interviews. This
may be an indication that her symptoms are less limiting than alleged and that she
feels she retains some capacity to work. The record also reflects that the claimant
received unemployment compensation during the alleged period of disability.
This required the claimant to certify that she was willing and able to engage in
work activity, which is inconsistent with a claim for disability.
9

As for the opinion evidence, the claimant’s physician assistant … completed a
medical source statement in October 2016. She indicated the claimant could
perform sedentary work, but would often require additional breaks during a
workday. She also indicated that the claimant experienced four or more “bad”
days per months. The undersigned gives this opinion little weight because it is not
fully supported by the objective medical findings, including physical
examinations documenting normal range of motion throughout, no
musculoskeletal tenderness or deformity, no synovitis, normal strength, normal
motor function, and normal gait and station. The claimant stated in medical
records that she took a trip to the Dominican Republic, did volunteer work, and
helped plan her daughter’s wedding, which suggests that her symptoms are less
limiting…
The State Agency psychological consultant … determined that the claimant could
perform simple, routine, repetitive tasks in a stable environment, make simple
decisions, sustain a work routine without special supervision, and otherwise meet
the basic mental demands of competitive employment on a sustained basis. The
undersigned gives great weight to [this] opinion …
The claimant was born on December 10, 1962 and was 51 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date…
The claimant has at least a high school education …
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform…
The claimant has not been under a disability, as defined in the Social Security
Act, from August 12, 2014 through the date of this decision… (R.17- 27).

The record demonstrates the plaintiff experiences both physical and mental problems. While
the physical complaints do impose some limitation on her ability to work there is no
demonstration made that they prevent her from engaging in all forms of work as testified to by
the vocational expert. Her treating psychiatrist concluded that she would have stress management
problems but his conclusions are in the form of a check-off rather than a description of a basis
for his conclusions. The use of an unsupported check-off box is weak support for any

10

conclusions. Smith v. Astrue, 359 Fed. Appx. 313, 316 (3d Cir. 2009). The neuropsychologist’s
report supports the contention that the plaintiff suffers from a general anxiety disorder but there
is no demonstration that this condition is disabling. Rather, the record reflects that to a very large
extent her problems are controlled by medication.
The plaintiff also argues that the administrative law judge should have considered her to be
of “advanced age” rather than of “closely approaching advanced age” in applying the applicable
grid.1 Although the regulations do provide some flexibility in determining which grid to apply, it
is also true that the plaintiff was seven months away from the advanced age category and for this
reason not entitled to the waiver. Roberts v. Barnhart, 139 Fed. Appx. 418, 420 (3d Cir. 2005)
(there is no “authority extending the benefits of a ‘borderline’ age determination to persons
…who are within five to six months” of their 55th birthday). Accordingly, plaintiff is not entitled
to be considered a borderline person at the time of the decision was rendered.
Since the burden of demonstrating entitlement to benefits rests on the plaintiff and she has
failed to make this showing, she is not entitled to benefits.
Summary judgment is appropriate when there are no disputed material issues of fact, and the
movant is entitled to judgment as a matter of law. McMann v. Babcock and Wilcox, 869 F.3d
240 (3d Cir. 2017). In the instant case, there are no material factual issues in dispute, and the
Commissioner's conclusion is supported by substantial evidence. For this reason, the
defendant’s motion for summary judgment (ECF No. 13) will be granted, the plaintiff’s motion
for summary judgment (ECF No. 10) will be denied, and the decision of the Commissioner will
be affirmed.
An appropriate Order will be entered.

1

Closely approaching advanced age describes a person who is age 50-55 while a person of advanced age is age 55
or older. 20 C.F.R. Ch. III §404.1563(d) and (e).

11

s/ Robert C. Mitchell
United States Magistrate Judge

Filed: July 25, 2018

12

ORDER
AND NOW, this 25th day of July, 2018, for the reasons set forth in the foregoing
Memorandum, the Plaintiff’s motion for summary judgment (ECF No.10) is DENIED; the
Defendant’s motion for summary judgment IECF No. 13) is GRANTED, and the decision of the
Commissioner is AFFIRMED.

s/ Robert C. Mitchell
United States Magistrate Judge

13