MCGRATH v. ASTRUE
Filing
17
MEMORANDUM JUDGMENT ORDER denying 12 plaintiff's Motion for Summary Judgment and granting 14 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. Signed by Judge Gustave Diamond on 6/20/11. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RONALD J. McGRATH, JR.,
Plaintiff,
v.
Civil Action No. 10-130J
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'
t>:
J~~ of June, 2011
1
upon due consideration
cross-motions for summary judgment pursuant to
plaintiff's request for review of the decision of the Commissioner
of Social Security ("Commissioner") denying his applications for
disability insurance benefits
("DIB")
and supplemental security
income ("SSP/) under Title II and Title XVI , respectively 1 of the
Social Security Act ("Act"), IT IS ORDERED that the Commissioner's
motion for summary judgment
hereby iS
I
(Document No.
14) be,
and the same
granted and plaintiff's motion for summary judgment
(Document No. 12) be, and the same hereby is, denied.
As the factfinder 1 an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may reject
or discount
reasons for doing so.
Cir.
'Aon
(Rev 8/82)
1999) .
substantial
any evidence
the ALJ explains
the
186 F.3d 422,
(3d
if
Plummer v. Apfel,
429
Where the ALJ's findings of fact are supported by
evidence,
a
reviewing
court
is
bound
by
those
findings,
even
differently.
2001).
if
it
would have
Fargnoli v.
Moreover,
decided
Massanari,
disability
is
not
the
factual
247 F.3d 34,
38
inquiry
(3d Cir.
determined merely by
the
presence of impairments, but by the effect that those impairments
have upon an individual's ability to perform substantial gainful
activity.
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991).
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 conclusions.
Plaintiff filed his DIB and SSI applications on October 2,
2007,
alleging disability beginning September 21,
AIDS.
Plaintiff's applications
were denied.
2007,
due to
At plaintiff's
request, an ALJ held a hearing on September 4, 2009.
On November
12, 2009, the ALJ issued a decision finding that plaintiff is not
disabled.
The Appeals Council denied plaintiff's request for
review on March 22,
2010,
making the ALJ's decision the final
decision of the Commissioner.
The instant action followed.
Plaintiff, who has a high school education, was 31 years old
at the time of the ALJ's decision and is classified as a younger
individual
416.963(c}.
as
an
under
the
regulations.
20
C.F.R.
§§404.1563(c),
Although plaintiff has past relevant work experience
assistant
manager,
sales
clerk,
automobile
salesman,
insurance salesman and security assistant, he has not engaged in
substantial gainful activity at any time since his alleged onset
date of disability.
After
reviewing
plaintiff's
~A072
(Rev. 8/82)
2
medical
records
and
hearing
testimony from plaintiff and a vocational expert at the hearing,
the ALJ
concluded that
meaning of the Act.
plaintiff
is
not
disabled within
the
Although the medical evidence established
that plaintiff suffers from the severe impairments of AIDS and
mild depression and anxiety disorders, those impairments, alone or
in combination, do not meet or equal the criteria of any of the
listed impairments set forth in Appendix 1 of 20 C.F.R., Subpart
P, Regulation No.4 ("Appendix 111) •
The ALJ found that plaintiff retains the residual functional
capacity to
additional
perform a
limitations.
range
of
light
Plaintiff
work
is
with a
limited
to
number of
occasional
standing and walking for four hours in an eight-hour workday.
addi tion,
tasks
plaintiff
that
are
is limited to simple,
not
performed
in
In
repeti tive
fast-paced
a
routine,
production
environment and that involve only simple work-related decisions
and relatively few work place changes.
Further, plaintiff must
work primarily with objects rather than people, he is limited to
occasional
interaction
with
supervisors,
and
he
must
avoid
interaction with co-workers and the general public (collectively,
the "RFC Finding") .
As a result of these limitations,
the ALJ determined that
plaintiff could not perform his past relevant work.
based upon the vocational expert's testimony,
Nonetheless,
the ALJ concluded
that plaintiff's age, educational background, work experience and
residual
functional
capacity enable
him
to make a
vocational
adjustment to other work that exists in significant numbers in the
'l\t.Aon
(Rev. 8/82)
- 3
national economy, such as a scale operator, small parts assembler
or inspector.
Accordingly,
the ALJ found that plaintiff is not
disabled within the meaning of 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
1382c(a} (3) (A).
months.
42
U.S.C.
§§423 (d) (I) (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), 1382c (a) (3) (B) .
The Commissioner has promulgated regulations that incorporate
a five-step sequential evaluation process for determining whether
a claimant is disabled.
The ALJ 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 Appendix Ii
if
not,
whether
the
claimant's
impairment
performing his past relevant work;
and
prevents
(5)
if so,
him
(4)
from
whether the
claimant can perform any other work that exists in the national
economy,
in light of
his age,
residual
functional
capacity.
416.920(a) (4).
education,
20
C.F.R.
§§404.1520(a} (4),
If the claimant is found disabled or not disabled
at any step, further inquiry is unnecessary.
In this case,
Id.
plaintiff challenges the ALJ's findings at
'lit.A072
(Rev 8/82)
work experience and
- 4
steps 2, 3 and 5 of the sequential evaluation process.
argues at step 2 that
Plaintiff
the ALJ erred in failing to find that
certain of his claimed impairments are
"severe.
II
At step 3,
plaintiff argues that the ALJ erred by concluding that his severe
impairments do not meet or equal any listing in Appendix 1.
Further, plaintiff claims the ALJ's step 5 finding that he retains
the residual functional capacity to perform work that exists in
the national economy is not supported by substantial evidence.
The court finds that these arguments lack merit.
Plaintiff first argues that the ALJ erred in finding that his
recurrent
condyloma,
oral
candidiasis,
mild
gastritis
and
esophagitis with suspected esophageal moniliasis are not severe
impairments.
The "severity regulation" applied at step 2 requires
that the claimant have a
severe impairment,
or combination of
impairments,
which significantly limits his physical or mental
ability
perform
to
§§404 .1520 (cl
I
basic
416.920 (cl .
work
activities. 1
20
C.F.R.
The Social security Regulations and
Rulings, as well as case law applying them, discuss the step 2
severity determination in terms of what is "not severe."
v. Commissioner of Social Security,
347 F.3d 541,
546
Newell
(3d Cir.
IBasic work activities include: (ll physical functions such
as walking,
standing,
sitting,
lifting,
pushing,
pulling,
reaching, carrying, or handling; (2) capacities for seeing,
hearing, and speaking; (3) understanding
carrying out, and
remembering simple instructions;
(4)
use of judgment;
(5)
responding appropriately to supervision, co-workers and usual work
situations; and (6) dealing with changes in a routine work
setting. 20 C.F.R. §§404.1521{b) (1)-{6); 416.921(b) (1)-(6).
I
'I\lt,A072
(Rev. 8/82)
- 5
2003)
(citing Smolen v.
1996)) .
severe
Chater,
80 F.3d 1273,
According to the Regulations,
if
it
does
not
significantly
1290
an impairment
limit
[the
(9th Cir.
"is
not
claimant's]
physical or mental ability to do basic work activi ties. "
20
C.F.R. §§404.1S21(a), 416.921(a).
Although the principles discussed above indicate that the
burden on an applicant at step 2 is not an exacting one, plaintiff
nonetheless bears the burden to prove that his claimed impairments
are
severe.
20
C.F.R.
§§404.1S12(c),
Yuckert, 482 U.S. 137, 146 n.S (1987)
416.912(c)
i
Bowen
v.
(stating that the claimant
bears the burden of proof at step 2 of the sequential evaluation
process).
has
not
Plaintiff has not met that burden in this case, as he
proffered
evidence
to
establish
that
his
recurrent
condyloma, oral candidiasis, mild gastritis and esophagitis with
suspected esophageal moniliasis present more than a minimal impact
on his ability to perform basic work activities. 2
the court notes
identified
conditions.
any
that
none of
functional
plaintiff's
limitations
as
In particular,
treating physicians
a
result
of
these
Accordingly, the court finds the ALJ did not err in
making his step 2 finding.
Plaintiff next challenges the ALJ's findings at step 3 of the
sequential evaluation process.
~A072
(Rev, 8/82)
At step 3, the ALJ must determine
2Plaintiff's severity argument is further undermined by the
fact that he completed a disability report on which he indicated
that AIDS is the only condition that limits his ability to work,
not the laundry list of other impairments that he now claims are
severe.
(R. 144).
- 6
whether the claimant's impairments meet or equal one of the listed
impairments.
Burnett
v.
Commissioner
of
Social
Administration! 220 F.3d 112, 119 (3d Cir. 2000).
describe impairments that prevent an adult,
work
experience!
The listings
regardless of age,
education
or
activity.
20 C.F.R. §§404.1525(a), 416.925(a) ; Knepp v. Apfel,
204 F.3d 78, 85 (3d Cir. 2000).
from
Security
performing
any
gainful
"If the impairment is equivalent
to a listed impairment, then [the claimant] is per se disabled and
no further analysis is necessary."
It
is
the ALJ's
burden
to
Burnett, 220 F.3d at 119.
identify
the
relevant
listed
impairment in the regulations that compares with the claimant's
impairment.
claimant's
Burnett, 220 F.3d at 120 n.2.
burden
to
present
impairment matches or is
Williams v . Sullivan,
medical
However,
findings
it is the
that
show his
equivalent to a listed impairment.
970 F. 2d 1178 ,
1186
(3d Cir.
1992).
In
determining whether the claimant's impairment meets or equals a
listed impairment,
decision.
the ALJ must set forth the reasons for his
Burnett, 220 F.2d at 119.
According to plaintiff, the ALJ erred in failing to find that
he meets or equals a listing under 12.00
14.00
(immune
system
disorders).
(mental disorders) or
Contrary
to
plaintiff's
position, a review of the record establishes that the ALJ employed
the appropriate analysis in arriving at his step 3 finding.
ALJ
analyzed
the
medical
evidence
of
record
and
found
The
that
plaintiff suffers from the severe impairments of AIDS and mild
depression and anxiety disorders.
~A072
(Rev. 8/82)
-
7
However,
the ALJ determined
that plaintiff's impairments, even when considered in combination,
do not meet or equal any listed impairment.
The ALJ's decision
indicates that he considered listings under 12.00 and 14.00, but
he
found
that plaintiff's
criteria of any listing.
conditions
(R. 12-13).
do not
satisfy all
the
The ALJ then explained his
reasoning as to why plaintiff's impairments do not meet or equal
any listing.
(R. 12-13).
The ALJ satisfied his burden; however, plaintiff failed to
sustain his burden of showing that his impairments meet, or are
equal to, a listing.
or equals
a
demonstrate
argument.
Other than broadly asserting that he meets
listing under
that
the
12.00
or
evidence
plaintiff did not
record
of
14.00,
substantiates
his
Furthermore, the court notes that no medical source of
record found that plaintiff's impairments meet or equal a listing.
For these reasons,
the court concludes that
the ALJ's step 3
finding is supported by substantial evidence.
The court likewise finds that the ALJ/s step 5 finding is
supported by substantial evidence.
At step 5, the Commissioner
must show there are other jobs that exist in significant numbers
in the national economy which the claimant can perform consistent
with
his
age,
education
l
past
work
experience
and
residual
functional capacity.
20 C.F.R. §§404.1520(g) (1), 416.920(g) (1).
Residual
capacity
functional
is
defined
as
that
which
an
individual still is able to do despite the limitations caused by
his
impairments.
Fargnoli,
20
C.F.R.
247 F.3d at 40.
§§404.1545(a) (I),
In assessing a claimant's residual
'A072
(Rev. 8182)
416.945(a) (1);
8
functional
capacity,
the
ALJ
is
required
to
consider
the
claimant's ability to meet the physical, mental, sensory and other
requirements of work.
20 C.F.R. §§404.1545{a) (4), 416.945{a) (4).
Here, plaintiff argues that the ALJ erred at step 5 because
he did not consider the testimony of Angi Peacetree, a retired
social worker, who previously had assisted plaintiff when he was
diagnosed with AIDS.
The ALJ must consider all relevant evidence from "acceptable
medical
sources,"
which
include
licensed
physicians,
psychologists, optometrists and podiatrists, as well as qualified
speech pathologists.
20 C. F . R . § § 404 . 1513 (a), 416. 913 (a).
The
ALJ also may consider other opinions about a claimant's disability
from
individuals
source,"
such
Peacetree.
that
the
as
who
are
not
a
social
deemed
worker
an
like
"acceptable
the
now-retired
See 20 C.F.R. §§404.1513(d) (3), 416.913(d) (3)
Commissioner may
including,
personnel).
use
evidence
from
medical
"other
Ms.
(stating
sources"
inter alia, public and private social welfare agency
Because a social worker is not an acceptable medical
source under the Regulations, the ALJ was not required to give any
special consideration to Ms. Peacetree's testimony.
In
addition
to
the
"acceptable
medical
plaintiff's
condition
fact
source,"
and
that
her
Ms.
Peace tree
restrictive
capabilities,
see
is
not
an
assessment
of
R.
is
43-48,
contradicted by other evidence received from acceptable medical
sources.
Indeed,
Drs .
Sullivan,
Black and McKibbin,
who are
plaintiff's treating physicians, found his condition to be under
~A072
(Rev. 8/82)
- 9
control and improving, and they did not identify any functional
limitations that applied to plaintiff.
282) .
Accordingly,
Ms.
(R. 211, 213-14, 243-44,
Peacetree's testimony,
which conflicts
with the opinions of plaintiff's treating physicians, is neither
pertinent, relevant nor probative of the disability determination,
and the ALJ did not err by choosing to disregard it.
v.
Commissioner of Social Security,
2008)
(recognizing that
529 F.3d 198,
See Johnson
204
(3d Cir.
an ALJ may overlook evidence
that
is
neither pertinent, relevant nor probative) .
Plaintiff's final argument is that the Appeals Council erred
by
failing
to
adequately
consider
an
insurance
form
report
completed by Dr. Sullivan on July 13, 2009, on which he indicated
plaintiff is disabled.
(R. 290-91).
Plaintiff's argument lacks
merit, as this court has no authority to review the actions of the
Appeals Council in denying review.
As the Third Circuit explained in Matthews v. Apfel, 239 F.3d
589 (3d Cir. 2001), the standards for judicial review are governed
by the Social Security Act.
Pursuant to §405(g), a claimant who
is unsuccessful in the administrative process may seek judicial
review of the final decision of the Commissioner denying benefits.
However, where the Appeals Council denies a claimant's request for
review,
it is the ALJ's decision which is the final decision of
the Commissioner, and it is that decision the court is to review.
Matthews, 239 F. 3d at 592.
As the Matthews court explained, "[nJ
0
statutory authority (the source of the district court's review)
authorizes the court to review the Appeals Council decision to
'A072
(Rev. 8/82)
- 10
deny review.
Id. at 594.
II
Thus, to the extent plaintiff requests this court to review
the
Appeals
Council's
decision
statutory authority to do so.
to
deny
review,
we
have
no
Rather, it is the ALJ's decision,
the final decision of the Commissioner, that is before this court
for
judicial review.
As Dr.
Sullivan's July 13,
report was not presented to the ALJ,
2009,
form
that document may not be
considered by this court in conducting its substantial evidence
review.
Matthews, 239 F.3d at 594-95.
Moreover,
to the extent plaintiff suggests that this case
should be remanded to the Commissioner pursuant to sentence six of
§405 (g)
for consideration of the form report completed by Dr.
Sullivan, he has not established that remand is appropriate.
When
a claimant seeks to rely on evidence that was not before the ALJ,
the court may remand the case to the Commissioner if the evidence
is new and material and if there is good cause why it was not
previously presented to the ALJ.
Matthews,
239 F.3d at 593.
Here, plaintiff has not demonstrated that a sentence six remand is
warranted.
Evidence is considered "new" if it was not in existence or
not available to the claimant at the time of the administrative
proceeding.
Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990).
Dr. Sullivan completed the form report on July 13, 2009, prior to
the
administrative
September 4, 2009.
hearing
Thus,
before
the
ALJ which was
held on
the report was available to plaintiff
and he could have submitted it to the ALJ at the hearing.
'A072
(Rev, 8/82)
- 11
Furthermore
1
the form report is not material.
It appears Dr.
Sullivan completed the report for an insurance company
simply checked a box indicating plaintiff was disabled.
Dr.
and he
1
(R. 291).
Sullivan did not cite any medical evidence to support his
opinion
l
and
it
conflicts
with
his
earlier
assessment
of
plaintiff/s functional capabilities that he is capable of at least
light work with certain restrictions.
(R. 213-14).
In addition
l
the form report is contradicted by other medical evidence from
Drs. Black and McKibbin indicating plaintiff s condition was under
1
control and improving.
Finally
1
(R.
plaintiff
243-44
has
not
1
282).
demonstrated
good
failing to timely submit Dr. Sullivan/s form report.
above
1
cause
for
As stated
Dr. Sullivan completed the form report on July 13
1
2009 1
and the administrative hearing was not held until September
2009.
41
Plaintiff could have submitted the report to the ALJ at the
administrative
hearing
1
but
he
failed
to
so.
belatedly submitted it to the Appeals Council.
not satisfy the good cause requirement
1
Instead
l
he
Such delay does
and a sentence six remand
is not warranted in this case.
After
carefully and methodically
medical evidence of record
l
considering all
of
the
the ALJ determined that plaintiff is
not disabled within the meaning of the Act.
The ALJ/s findings
and conclusions are supported by substantial evidence and are not
~A072
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- 12
otherwise erroneous.
Therefore, the decision of the Commissioner
must be affirmed.
~~.J
/ Gustave Diamond
United States District Judge
cc: J. Kirk Kling, Esq.
630 Pleasant Valley Boulevard
Suite B
Altoona, PA 16602
Stephanie L. Haines
Assistant U.S. Attorney
319 Washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901
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