ESQUIVEL v. ASTRUE

Filing 15

MEMORANDUM JUDGMENT ORDER denying 10 plaintiff's Motion for Summary Judgment and granting 12 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 4/11/11. (kw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KATHY D. ESQUIVEL,
Plaintiff,

v.
Civil Action No. 10-137J
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'

~ of

April, 2011, 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 her applications for
disability insurance benefits

("DIB")

and supplemental security

income ("SSI") under Title I I and Title XVI, respectively
Social Security Act ("Act")

I

motion for summary judgment
hereby is,

of the

I

IT IS ORDERED that the Commissioner's
(Document No.

12)

be,

and the same

granted and plaintiff's motion for summary judgment

(Document No. 10) be, and the same hereby is, denied.
As the factfinder

I

an Administrative Law Judge (\\ALJ") has an

obligation to weigh all of the facts and evidence of record and
may reject

reasons for doing so.
Cir.
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1999) .

substantial

any

or discount

evidence

if

Plummer v. Apfel,

the

ALJ explains

186 F.3d 422,

429

the
(3d

Where the ALJ's findings of fact are supported by
evidence,

a

reviewing

court

is

bound

by

those

findings

even

1

it

would have

Fargnoli v.

differently.
2001).

if

Moreover

1

Massanari l

disability

presence of impairments

1

decided

is

not

the

factual

247 F.3d 34

38

1

determined merely

inquiry
(3d Cir.
by

the

but by the effect that those impairments

have upon an individual's ability to perform substantial gainful
activity.

Jones v. Sullivanl 954 F.2d 125

129 (3d Cir. 1991).

1

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 her DIE and SSI applications on September 6,
2006,

alleging

disability

beginning August

25,

2006,

due

to

degenerative joint disease, arthritis and a deteriorating disc in
her back.

Plaintiff's applications were denied.

At plaintiff's

request, an ALJ held a hearing on September 111 2008.

On October

23, 2008, the ALJ issued a decision finding that plaintiff is not
disabled.

The Appeals Council denied plaintiff's request for

review on March 30,

2010,

making the ALJ's decision the final

decision of the Commissioner.

The instant action followed.

Plaintiff, who has a limited education
her alleged onset date
younger

individual

§§404.1563(c)

1

of

under

416.963(c).

disability and
the

I

was 47 years old on
is

classified as a

regulations.

20

C.F.R.

Although plaintiff has past relevant

work experience as a cook and a waitress l she has not engaged in
substantial gainful activity at any time since her alleged onset
date.
After

reviewing

plaintiffls

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medical

records

and

hearing

testimony from plaintiff and a vocational expert at the hearing,
the ALJ

concluded

that plaintiff

meaning of the Act.

is

not

disabled within

the

Although the medical evidence established

that plaintiff suffers from the severe impairments of degenerative
disc disease of the lumbar and cervical spine, degenerative joint
disease ,

depressive disorder and generalized anxiety disorder,

those impairments, alone or in combination, do not meet or equal
the

criteria

of

any

of

the

listed

impairments

set

forth

Appendix 1 of 20 C.F.R., Subpart P, Regulation No.4

in

("Appendix

111) •

The ALJ found that plaintiff retains the residual functional
capacity

to perform a

additional
kneeling,

limitations.
stooping,

range

of

light

Plaintiff

crouching,

is

work with a
limited

to

number

of

occasional

crawling and climbing,

and she

requires the option to sit or stand during the workday for one or
two minutes every hour or so.

In addition, plaintiff must avoid

concentrated exposure to cold temperature extremes and extreme
dampness.

Finally,

plaintiff

is

limited

to

simple,

routine,

repetitive tasks that are not performed in a fast-paced production
environment and that involve only simple work-related decisions
and relatively few work place changes

(collectively,

the

"RFC

Finding") .
As a result of these limitations,

the ALJ determined that

plaintiff could not perform her past relevant work.
based upon the vocational expert's testimony,

Nonetheless,

the ALJ concluded

that plaintiff's age, educational background, work experience and
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residual

functional

capacity enable

her

to make

a

vocational

adjustment to other work that exists in significant numbers in the
national economy,

such as a folder,

garment sorter or router.

Accordingly, the ALJ found that plaintiff is not disabled within
the meaning of the Act.
The Act defines ftdisability" 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

1382c(a) (3) (A).

twelve

months.

42

U.S.C.

§§423 (d) (1) (A),

The impairment or impairments must be so severe

that the claimant uis not only unable to do [her] previous work
but cannot, considering [her] 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:

(1) whether the

claimant is currently engaged in substantial gainful activity; (2)
if not, whether she has a severe impairment;

(3)

if so, whether

her impairment meets or equals the criteria listed in Appendix 1;
(4)

if not, whether the claimant's impairment prevents her from

performing her past relevant work;

and

(5)

if so,

whether the

claimant can perform any other work that exists in the national
economy,

in light of her age,

residual

functional

education,

capacity.

20

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4

­

work experience and

C.F.R.

§§404.1520(a) (4),

416.920(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

steps 3 and 5 of the sequential evaluation process.
plaintiff

argues

that

the

ALJ

erred

by

At step 3,

concluding

that

her

impairments do not meet or equal any listing in Appendix 1.
Further,

plaintiff

claims

the ALJ's

retains the residual functional

step

5

finding

that

she

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 challenges the ALJ's findings at step 3 of
the

sequential

evaluation process.

At

step 3,

the ALJ must

determine whether the claimant's impairments meet or equal one of
the

listed

impairments.

Burnett

v.

Commissioner

of

Social

Security Administration, 220 F.3d 112, 119 (3d Cir. 2000).

The

listings describe impairments that prevent an adult, regardless of
age,

education or work experience,

activity.

from performing any gainful

20 C.F.R. §§404.1525(a), 416.925(a)

204 F.3d 78, 85 (3d Cir. 2000).

i

Knepp v. Apfel,

"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.

Id. at 120 n.2.

However, it is the claimant's burden

to present medical findings that show her impairment matches or is
equivalent to a listed impairment.
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Williams v. Sullivan, 970 F.2d

1178, 1186 (3d Cir. 1992).

In determining whether the claimant's

impairment meets or equals a listed impairment, the ALJ must set
forth the reasons for her decision.

Burnett, 220 F.2d at 119.

According to plaintiff, the ALJ erred in failing to find that
she

meets

or

equals

a

listing

under

1.00

(musculoskeletal

disorders), 12.04 (affective disorders) or 12.06 (anxiety related
disorders) .

Contrary to plaintiff's position, a review of the

record establishes that the ALJ employed the appropriate analysis
in arriving at her step 3 finding.
evidence

of

record

degenerative

disc

and

disease

found
of

The ALJ analyzed the medical
that

the

plaintiff

lumbar

and

suffers

cervical

from
spine,

degenerative joint disease, depressive disorder and generalized
anxiety disorder, all of which are severe impairments.
the

ALJ

determined

considered
impairment.

in

that

combination,

plaintiff's
do

not

impairments,

meet

or

equal

However,
even

any

listed

The ALJ's decision indicates that she considered

listings under 1. 00 and 12.00,

but she found that plaintiff's

conditions do not satisfy all the criteria of any listing.
12).

when

(R.

The ALJ then explained her reasoning as to why plaintiff's

impairments do not meet or equal any listing.

(R.

12).

The ALJ satisfied her burden; however, plaintiff failed to
sustain her burden of showing that her impairments meet, or are
equal to, a listing.

Other than broadly asserting that she meets

or equals a listing under 1.00, 12.04 or 12.06, plaintiff did not
demonstrate
argument.

that

the

evidence

of

substantiates

her

Furthermore, the court notes that no medical source of

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(Rev. 8/82)

record

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record found that plaintiff's impairments meet or equal a listing.
For these reasons, the court finds 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

her

age,

education,

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
her

impairments.

Fargnoli,

20

247 F.3d at 40.

functional

capacity,

claimant's

ability

physical,

C.F.R.

mental,

§§404.1545(a) (I),

416.945(a) (1);

In assessing a claimant's residual

the

ALJ

to meet

is

required

certain demands

to
of

consider
jobs,

sensory and other requirements.

the

such as
20

C.F.R.

§§404 .1545 (a) (4), 416.945 (a) (4) .
Here, plaintiff argues that the ALJ erred at step 5 because
she did not properly weigh the respective opinions of Dr. Gregory
Slick, who was plaintiff's primary care physician, and Dr. Lihui
Tang and Dr.

V.K.

mental impairments.

Suresh Rajan,

who treated plaintiff for her

A treating physician's opinion is entitled to

controlling weight if it is well-supported by medically acceptable
clinical

and

laboratory

diagnostic

techniques

and

is

inconsistent with the other substantial evidence of record.
C.F.R. §§404.1527(d) (2), 416.927(d) (2).
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not
20

Under this standard, the

respective

opinions

of

Drs.

Slick,

Tang

and

Rajan

were

not

entitled to controlling weight.
Dr. Slick completed a form report entitled, "Medical Source
Statement of Claimant's Ability to Perform Work-Related Physical
Activities," on which he checked boxes to indicate that plaintiff
can lift up to 100 pounds occasionally, but she only is able to
sit less than six hours during an eight hour workday, she only is
able to stand and walk one hour or less during the workday, and
she can never perform any postural activities.

(R. 211-12).

The

ALJ did not give controlling weight to Dr. Slick's assessment of
plaintiff's physical capabilities, rather finding that plaintiff
could perform light work that involves only occasional postural
maneuvers and provides her the option to sit or stand for brief
periods every hour.
The

ALJ

plaintiff's

properly

physical

weighed

Dr.

capabilities

Slick's

and

assessment

determined

it

was

entitled to controlling weight for a number of reasons.

of
not

First,

Dr. Slick completed a check-the-box form report on which he did
not cite any medical evidence to support his findings, despite the
fact that the form provided space for him to do so.

(R. 211-12).

Further, Dr. Slick's restrictive assessment of plaintiff's
abili ty to sit,

stand,

walk and perform postural maneuvers is

contradicted

other

evidence

by

in

the

record.

An

MRI

of

plaintiff's cervical spine showed no evidence of any significant
abnormality, and an MRI of her lumbar spine showed some minimal
degenerative changes, but no disc herniation.
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(R. 190).

An

x-ray

of plaintiff's cervical spine showed only minimal degenerative
changes

and

a

lumbar

spine

degenerative disc disease.
damage was normal.

(R.

X-ray

(R.

191).

indicated
An

only

minimal

EMG test for nerve

206-07).

Finally, Dr. Slick's opinion was contradicted by the results
of a consultative examination performed by Dr. Stanley Kotala.
Dr. Kotala's physical examination of plaintiff revealed full range
of motion in all extremities, no joint swelling or tenderness, no
edema,

and

only

tenderness.
physician,

(R.

Dr.

slightly
196).

decreased

back

flexion

with

no

Plaintiff's most recent primary care

Somsek Thiplueporn,

likewise found that she had

only mild tenderness in her lumbar spine, and noted that she did
not take any medication for her back problems.
addition,

(R. 241-42).

In

from a neurological standpoint, Dr. Kotala found that

plaintiff had
normal gait.

sis
(R.

strength,
197).

normal deep tendon reflexes and a

For these reasons,

as well as those

discussed above, the ALJ properly weighed Dr. Slick's assessment
of plaintiff and determined it was not entitled to controlling
weight.
The ALJ likewise properly concluded that Dr. Tang's and Dr.
Rajan's respective assessments of plaintiff were not entitled to
controlling weight.
2008,

Dr. Tang briefly treated plaintiff in January

while she was hospitalized for depression with suicidal

behavior.

On discharge,

Dr.

Tang found that plaintiff was in

stable condition and assessed her Global Assessment of Functioning

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( \\GAF")

score at 5 0 . 1

(R.

228) .

In February 2008, Dr. Rajan

performed a psychiatric evaluation of plaintiff and assessed her
GAF score at 40.

(R.

238 39).

Dr.

Rajan,

who continued to

provide plaintiff with therapy and medication for her mental
impairment, rated plaintiff's GAF score at 45 in July 2008.

(R.

237) .
The Third Circuit Court of Appeals has recognized that GAF
scores

do

not

have

a

direct

correlation

to

the

severity

requirements of the Social Security mental disorder listings, and
consequently has held that a GAF score of 45 is not conclusive
evidence of a

mental

disability.

See Gilroy v.

Fed.Appx. 714, 715 (3d Cir. 2009).

Astrue,

351

Like any other evidence in a

social security case, a GAF score may be disregarded or accorded
little weight depending upon its consistency with the record as a
whole.
Here,
correctly

the

ALJ

determined

considered

plaintiff's

they were

not

entitled

GAF
to

scores,
great

weight

because they were inconsistent with other record evidence.
14).

but

(R.

First despite assigning plaintiff GAF scores ranging from

lThe GAF scale, designed by the American psychiatric
Association, is used by clinicians to report an individual's
overall level of mental functioning.
The GAF scale considers
psychological,
social
and
occupational
functioning
on
a
hypothetical continuum of mental health to illness. The highest
possible score is 100 and the lowest is 1. A score between 41 and
50 indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals,
frequent shoplifting)
or any serious
impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).
Diagnostic and Statistical
Manual of Mental Disorders (4 th Ed. 2000).
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40-50,

neither Dr.

regarding

Tang nor Dr.

plaintiff's

ability

Rajan expressed any opinion

to

perform

basic

mental

work

activities, such as understanding instructions, using judgment,
responding to supervisors and co-workers and dealing with work
place changes.
(6)

See 20 C.F.R. §§404.1521(b) (3)-(6), 416.921(b) (3)­

(identifying

basic

mental

work-related

activities).

In

addition, contrary to Dr. Rajan's GAF assessment, his treatment
notes

indicated

medication.

that

plaintiff

(R. 237).

was

doing

fairly

well

on her

Moreover, plaintiff told her new primary

care physician in August 2008, that she treats with Dr. Rajan for
anxiety and depression, takes medication for those conditions, and
stated she has been fine as a result.

(R.

241).

In sum,

the

totality of evidence in the record does not support Dr. Tang's and
Dr.

Rajan's

GAF

scores,

and

the

ALJ

properly

found

those

assessments were not entitled to great weight.
After

carefully and methodically

considering all

of

the

medical evidence of record, 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
otherwise erroneous.

Therefore, the decision of the Commissioner

must be affirmed.

~~
GUStaVeDiamond
United States District Judge

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cc: J. Kirk Kling, Esq.
630 Pleasant Valley Boulevard
Suite B
Altoona, PA 16602
John J. Valkovci, Jr.
Assistant U.S. Attorney
319 Washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901

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