CHERRY v. ASTRUE

Filing 15

MEMORANDUM JUDGMENT ORDER denying 11 plaintiff's Motion for Summary Judgment and granting 13 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 3/6/12. (kw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KRISTINE M. CHERRY,
Plaintiff,
v.
Civil Action No. 10-306J
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this

~Of

March, 2012, upon due consideration

of the parties' 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
child's insurance benefits, disability insurance benefits ("DIB")
and supplemental security income ("SSI") under Titles II and XVI,
respectively, of the Social Security Act ("Act"), IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
13) be, and the same hereby is, granted and plaintiff's motion for
summary judgment (Document No. 11) be, and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may reject or discount any evidence if
reasons for doing so.
""'Aon
(Rev. 8/82)

Cir. 1999) .

the ALJ explains the

Plummer v. Apfel, 186 F.3d 422, 429 (3d

Where the ALJ's findings of fact are supported by

substantial
findings,

evidence,

even

differently.
2001).

if

a

it

reviewing

would

Fargnoli v.

Moreover,

have

court

is

bound

decided

the

factual

Massanari,

disability

is

not

247 F.3d 34,

by

38

those

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 his findings and conclusions.
Plaintiff filed her DIB and SSI applications on February 26,
2008, alleging disability beginning March 5, 1988, due to learning
disabilities.

Plaintiff's

applications

were

denied.

At

plaintiff's request, an ALJ held a hearing on November 20, 2009.
On December 4,

2009,

the ALJ

plaintiff is not disabled.

issued a

decision finding

that

The Appeals Council denied plaintiff's

request for review on October 13, 2010, making the ALJ's decision
the

final

decision of

the

Commissioner.

The

instant

action

followed.
Plaintiff, who has a high school education, was 21 years old
when the ALJ issued his decision and is classified as a younger
individual
416.963(c).

under

the

regulations.

20

C.F.R.

§§404.1563(c),

Plaintiff has no past relevant work, and she has not

engaged in substantial gainful activity at any time since her
alleged onset date of disability.
After

reviewing

plaintiff's

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medical

records

and

hearing

testimony from plaintiff and a vocational expert at the hearing,
the ALJ concluded that she is not disabled within the meaning of
the Act.

Although the medical evidence established that plaintiff

suffers

from

the

severe

impairments

of

anxiety disorder

and

borderline intellectual functioning, 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 1").
The ALJ found that plaintiff retains the residual functional
capacity to perform work at all exertional levels with a number of
additional non-exertional limitations.
simple,

routine,

Plaintiff is limited to

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.

In

addition, plaintiff is limited to only occasional interaction with
supervisors,

co-workers

and

the

general

Finally,

public.

plaintiff is limited to occupations that involve only one or two
step tasks and that do not require her to make calculations, such
as a cashier or bank teller (collectively, the "RFC Finding").
Based
concluded
residual

upon
that

the

vocational

plaintiff's

functional

age,

expert's

testimony,

the

ALJ

background

and

to perform work

that

educational

capacity enable her

exists in significant numbers in the national economy, such as a
garbage collector

I

lumber stacker or laundry sorter.

Accordingly

I

the ALJ found that plaintiff is not disabled within the meaning of
the Act.
<il't.AOn
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The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment that can be expected to last for a continuous period of
at least twelve months.

42 U.S.C. §§423 (d) (1) (A), 1382c(a) (3) (A).

The impairment or impairments must be so severe that the claimant
"is

not

only

unable

considering [her]

to

do

[her]

previous

work

but

cannot,

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 i (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

416.920(a) (4).

education,

capacity.

20

work experience and

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, plaintiff 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

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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.

20 C.F.R.

from performing any gainful

§§404.1525(a), 416.925(a)i Knepp v. Apfel,

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

"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.
1178, 1186 (3d Cir. 1992).

Williams v. Sullivan, 970 F. 2d

In determining whether the claimant's

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

Burnett, 220 F.2d at 119.

Here, plaintiff argues the ALJ erred in failing to find that
she meets or equals listings 12.05C or 12.05D (mental retardation)
or 12.06 (anxiety related disorders).

Although plaintiff broadly

claims that she meets or equals one or more of these listings, she
has failed to demonstrate that the medical evidence of record
substantiates her position.
Contrary to plaintiff's contention, a review of the record
establishes that the ALJ employed the appropriate analysis in
arriving at his step 3 finding.

The ALJ analyzed the medical

evidence of record and found that plaintiff suffers from anxiety
disorder and borderline intellectual functioning, which are severe
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impairments.

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 sections 12.05 and 12.06, but he found
that plaintiff's conditions do not satisfy all the criteria of any
listing.

(R.

11).

The

ALJ

then

explained

impairments do not meet or equal any listing.

why

plaintiff's

(R. 11-13).

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

First, to meet or equal the mental retardation listing

described in either §12. 05C or §12. 05D,

a

claimant must have,

inter alia, a valid verbal, performance or full scale IQ score of
60 through 70.

See Appendix I, §12.05C, §12.05D.

In this case,

plaintiff concedes that her verbal IQ score is 73, her performance
IQ score is 84 and her full scale IQ score is 76.

See plaintiff's

Brief in Support of Motion for Summary Judgment (Document No. 12),
at 4;

(R. 276).

Plaintiff's IQ scores are not within the range

required by listings 12.05C or 12.05D, thus she does not meet or
equal either of those listings.
The ALJ also correctly determined that plaintiff does not
meet or equal listing 12.06 relating to anxiety disorder.

In

order to meet or equal listing 12.06, plaintiff's condition must
satisfy the paragraph "B" criteria of that listing by resulting in
at

least

two

of

the

following:

(1)

marked

restriction

of

activities of daily living i (2) marked difficulties in maintaining
social

functioning;

(3)

marked

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difficulties

in

maintaining

concentration, persistence or pace; or (4)
decompensation,
§12.06B.
paragraph
activities

each

of

extended

repeated episodes of

duration.

See

Appendix

I,

The ALJ's finding that plaintiff does not satisfy the
criteria

"Btl

of

daily

because

living,

she

has

moderate

mild

limitations

limitations

in

in

social

functioning, moderate limitations in concentration, persistence or
pace and no episodes of decompensation is supported by substantial
evidence for the reasons thoroughly explained in his decision.
(R. 12).
Finally,

the court notes that no medical source of record

found that plaintiff's impairments meet or equal any listing.

For

this reason, as well as those discussed above,

the court finds

that

by

the

ALJ's

step

3

finding

is

supported

substantial

evidence.
In conclusion, 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.
ALJ's

findings

and

conclusions

are

supported

evidence and are not otherwise erroneous.

by

substantial

Therefore, the decision

of the Commissioner must be affirmed.

/

"""A072
(Rev 8182)

/~~
'

Gustave Diamond
United States District Judge

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The

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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