PAVLIK v. BERRYHILL
Filing
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OPINION and ORDER denying 8 Motion for Summary Judgment; granting 10 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/13/19. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TINA M. PAVLIK,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
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Civil Action No. 2:18-cv-139
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AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. [ECF Nos. 8, 10].
Both parties have filed Briefs in Support of their Motions.
[ECF Nos. 9, 11]. After careful
consideration of the submissions of the parties, and based on my Opinion set forth below, I am
denying Plaintiff’s Motion for Summary Judgment and granting Defendant’s Motion for Summary
Judgment.
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”)
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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under Title II of the Social Security Act (“Act”). On or about March 25, 2015, Plaintiff applied for
DIB. [ECF No. 6-7 (Ex. 1D)]. In her application, she alleged that since February 3, 2015, she
had been disabled due to blindness, stroke with memory loss, nerves/depression/anxiety, and
disk in neck – bone spurs. [ECF No. 6-4 (Ex. 1A)]. Her date last insured is December 31, 2020.
[ECF Nos. 6-2 at 11, 13]. 2 The state agency denied her claims initially, and she requested an
administrative hearing. [ECF No. 6-5 (Exs. 1B, 4B, 5B)]. Administrative Law Judge (“ALJ”)
Jeffrey P. La Vicka held a hearing on April 20, 2017, at which Plaintiff was represented by counsel.
[ECF No. 6-3].
Plaintiff appeared at the hearing and testified on her own behalf.
Id.
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vocational expert also was present at the hearing and testified. Id. at 55-61. In a decision dated
June 27, 2017, the ALJ found that jobs existed in significant numbers in the national economy
that Plaintiff could perform and, therefore, that Plaintiff was not disabled under the Act. [ECF No.
6-2, at 11-23]. Plaintiff requested review of the ALJ’s determination by the Appeals Council, and,
on December 11, 2017, the Appeals Council denied Plaintiff’s request for review. [ECF No. 6-2
at 1-3]. Having exhausted all of her administrative remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. [ECF Nos. 8 & 10]. The
issues are now ripe for my review.
II.
A.
LEGAL ANALYSIS
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
To receive DIB, Plaintiff must establish that she became disabled prior to December 31, 2020, the date
on which her insured status expires, or “date last insured.” 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B); 20 C.F.R.
§ 404.131(a).
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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)). Additionally,
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 plaintiff must demonstrate that she 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. § 1382(a)(3)(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.
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, app. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent her from performing her past relevant work; and (5) if the claimant is incapable of
performing her past relevant work, whether she can perform any other work which exists in the
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national economy, in light of her 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 she is unable to return to her 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).
B.
WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S RFC FINDING
Residual functional capacity (“RFC”) refers to the most a claimant can still do despite her
limitations. 20 C.F.R. § 404.1545(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 her own limitations. Id.
Ultimately, the responsibility for
determining a claimant’s RFC rests with the ALJ. 20 C.F.R. §§ 404.1527(d); 404.1546; Chandler
v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Here, the ALJ found that Plaintiff had severe impairments, including history of stroke with
left eye blindness; organic brain syndrome; diabetes mellitus; status post lumbar spine surgery
with radiculitis; sacroiliitis; cervical spine stenosis; hypertension; affective disorder; anxiety; and
history of substance abuse. [ECF No. 6-2 at 13-14]. He then found that Plaintiff’s impairments
or combination of impairments did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 14-16. The ALJ further found
that Plaintiff had the RFC to perform light work with the following limitations: she must be allowed
the opportunity to change between sitting and standing for up to two minutes at thirty-minute
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intervals without going off task; entail no climbing of ladders, ropes, or scaffolds, kneeling,
crouching, or crawling, and only occasional other postural movements (i.e. climbing ramps or
stairs, balancing, or stooping); entail no repetitive rotation, flexion, or extension of the neck; avoid
concentrated exposure to cold and heat, wetness and humidity, excessive noise, vibration,
irritants (fumes, odors, dust, and poorly ventilated areas), and chemicals; avoid all exposure to
unprotected heights, hazardous machinery, and commercial driving; be limited to occupations
requiring vision in only one eye; be limited to simple, routine, and repetitive tasks requiring only
simple decisions, with no fast-paced production requirements and few workplace changes; entail
no interaction with the public and only occasional interaction with coworkers and supervisors.
[ECF No. 6-2 at 16-21]. The ALJ ultimately concluded that considering Plaintiff’s age, education,
work experience, and RFC, there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform and, therefore, that Plaintiff was not disabled within the
meaning of the Act. Id. at 22.
Plaintiff’s sole argument on appeal is that the ALJ should have provided a RFC
assessment for the period between February 3, 2015 and October 12, 2016 (the date of her
lumbar surgery), and a separate RFC assessment for the period after the October 12, 2016
lumbar surgery because the ALJ found that Plaintiff’s medical condition and functionality improved
after her surgery. [ECF No. 9, at 9-12]. After careful review, I find that Plaintiff’s argument is
without merit.
In short, the record simply does not support Plaintiff’s bald assertion that the ALJ’s RFC
findings reflected only his opinions of Plaintiff’s functional capabilities after her lumbar surgery
and the resulting improvement of her condition. Although the ALJ notes Plaintiff’s improved
condition in the course of his analysis, he likewise cites a plethora of pre-operative medical
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records and other record evidence in support of his finding that Plaintiff could perform limited light
work during the entire period at issue. For example, with respect to Plaintiff’s spinal condition,
the ALJ discussed her March 2015 x-rays and July 2, 2015 MRI of the lumbar spine, and noted
that, although the tests showed slight L5-S1 retrolisthesis, mild lumbar lordosis straightening, mild
L1-L2 through L5-S1 disc space narrowing with marginal spurs, and left-sided foraminal disc
herniation at L4-5, an August 2015 examination showed Plaintiff had a 4/5 strength in the left
iliopsoas and quads, her gait was reciprocal and symmetric, and she had intact sensation. [ECF
No. 6-2, at 17 (citing Exs. 5F, 8F)]. The ALJ further noted that well prior to her surgery, Plaintiff
underwent L4-L5 transforaminal epidural steroid injections, after which she reported fifty percent
improvement.
Upon examination after the injections, she had four out of five strength and
discomfort with palpation, but her sensation was intact and her gait was again reciprocal and
symmetric. See ECF No. 6-2 at 17-18 & Exs. 8F, 11F, 15F. After describing these pre-surgical
records, the ALJ noted that they did not support a totally disabling spinal condition. [ECF No. 62 at 17-18]. Similarly, the ALJ analyzed the medical evidence related to Plaintiff’s neck pain in
2015 and early-2016 and concluded that “[w]hile these objective findings support a reduction in
the claimant’s [RFC], they do not support a totally disabling spinal condition.” Id. at 18 (citing
Exs. 13F, 15F).
Other overall evidence that the ALJ considered in support of his finding that Plaintiff was
not as limited as she claimed during the entirety of the disability period includes Plaintiff’s selfreported activities of daily living, such as having no problem taking care of her personal care;
watching television; sitting on the porch; planting flowers; driving; going out alone; shopping;
preparing meals; cleaning; dusting; running the vacuum; cleaning the bathroom; babysitting her
grandchildren; traveling; and going out with her boyfriend. [ECF No. 6-2 at 19-20 (citing Ex. 4E
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and testimony)]. After listing these self-reported activities, the ALJ concluded that, while Plaintiff
“alleged difficulties with some activities, her activities of daily living do not preclude the limitations
set forth in the [RFC].” Id. at 20. The ALJ noted that these self-described activities were “not
consistent with a totally disabled individual.” Id. Furthermore, the ALJ observed that Plaintiff’s
work history also undermined her allegations. Id. Specifically, the ALJ noted that, while not
reflective of substantial gainful activity, Plaintiff’s earnings records show that she worked after her
alleged onset date. In addition, Plaintiff collected unemployment in the second and third quarters
of 2015, indicating that she was ready, willing, and able to work. Id. Citing this evidence, the
ALJ stated that “[o]verall, [Plaintiff’s] work history raises some questions as to whether the current
unemployment is due to her medical conditions.” Id. 3
Together, this evidence shows that the ALJ did not, as Plaintiff urges, base his nondisability finding and/or RFC determination solely on Plaintiff’s post-operative improvement.
Rather, the ALJ clearly considered all of the record evidence cumulatively and concluded that,
overall, Plaintiff’s treatment history, daily activities, work history, and collection of unemployment
detracted from the severity of her subjective allegations and were not indicative of any intractable
condition that would preclude her from performing light work activity for twelve consecutive
months during the entire applicable period. Id. at 20. 4
3 The ALJ’s treatment of state agency medical consultant, Dilip Kar, M.D.’s April 29, 2015, physical RFC
assessment also demonstrates that he did not base his RFC finding solely on Plaintiff’s post-operative
improvement. The ALJ only gave Dr. Kar’s opinion some weight because the evidence at the hearing level
showed that Plaintiff was “more limited” than Dr. Kar determined. Id. at 20-21 (citing Ex. 1A). The ALJ
explained that, “[i]ndeed, the longitudinal medical evidence of record shows that, since the time Dr. Kar
completed his physical residual functional capacity assessment, the claimant underwent spine surgery,
additional injections, and additional diagnostic testing that would support greater functional limitations,
which the undersigned has accommodated in the above residual functional capacity.” Id. (emphasis
added).
Defendant points out in her brief that “medical improvement” as used in the social security regulations is
a term of art that refers to “any decrease in the medical severity” of a claimant’s impairment “which was
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In sum, I find that the ALJ properly evaluated the evidence and determined Plaintiff’s RFC
in accordance with applicable social security law and regulations.
In so doing, he did not
discount Plaintiff’s symptoms entirely and included numerous restrictions in his RFC finding
related to Plaintiff’s credibly-established spinal and other physical impairments. 5 The ALJ’s RFC
generously accounted for the limitations established by the evidence of record, and his findings
are supported by substantial evidence. Accordingly, I find that the ALJ did not err in formulating
Plaintiff’s RFC, and there is no basis for remand on this issue.
III. CONCLUSION
For all of the foregoing reasons, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied. An appropriate Order follows.
present at the time of the most recent favorable medical decision that” the claimant was “disabled or
continued to be disabled.” 20 C.F.R. § 404.1594. These regulations require the social security
administration to periodically review awards of disability benefits to determine whether there has been
medical improvement that is related to the claimant’s ability to work. See id. Although Plaintiff does not
cite this specific regulation in her brief, I agree with Defendant that, to the extent she uses the term “medical
improvement” within the meaning of this regulatory scheme, her argument is misplaced. As Defendant
and the regulation note, “medical improvement” in this context refers only to the determination of whether
a previously found disability continues or ends. See id. Because this is not a case involving review of a
prior disability finding, the regulation simply does not apply. Moreover, and in any event, as set forth above,
the ALJ here never found that Plaintiff’s ability to work stemmed solely from improvements in her condition
post-surgery. To the contrary, the ALJ cited substantial pre- and post-surgical evidence that showed
Plaintiff retained the ability to work within the parameters of his RFC finding during the entirety of the alleged
disability period. Plaintiff’s argument that the ALJ erred in not performing two separate disability analyses
is groundless.
Plaintiff does not challenge the ALJ’s review of her mental impairments, and, therefore, I do not consider
them here.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TINA M. PAVLIK,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
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Civil Action No. 2:18-cv-139
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AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 13th day of March, 2019, after careful consideration of the submissions of
the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered that
the decision of the ALJ is affirmed and Plaintiff’s Motion for Summary Judgment [ECF No. 8] is
DENIED and Defendant’s Motion for Summary Judgment [ECF No. 10] is GRANTED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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