RUSSELL 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. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 7/30/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID BRIAN RUSSELL!
Plaintiff
l
v.
Civil Action No. 11-104J
MICHAEL J. ASTRUE
COMMISSIONER OF
SOCIAL SECURITY!
I
Defendant.
MEMORANDUM JUDGMENT ORDER
#t-
AND NOW, this ~ day of JulYI 2012
of the parties
l
Social
upon due consideration
cross-motions for summary judgment pursuant to
plaintiff/s request
of
1
review of the decision of the Commissioner
("Commissioner
Security
lt
)
plaintiiEf/s
denying
applications for disability insurance benefits and supplemental
security income under Titles II and XVII
Soc
1 Security Act ("Act
lt
),
motion for summary judgment
hereby iS
I
respectivelYI
of! the
IT IS ORDERED that the Commissioner s
l
(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, an Administrative Law Judge (flALJ") has an
obligation to weigh all of the facts and evidence of record and
may rej ect
or discount
reasons for doing so.
Cir.
1999).
any evidence
if
Plummer v. Apfel,
the ALJ explains: the
186 F.3d 422,
429
(3d
ImportantlYI where the ALJ's findings of fact
supported by substantial evidence, a reviewing court is bound by
'i'l>.A072
(Rev. 8/82)
those findings, even if it would have decided the factual inquiry
differently.
2001).
Fargnoli v.
Massanari,
247 F.3d 34,
38
(3d Cir.
These well-established principles preclude a reversql or
remand of the ALJ' s decision here because the record contains
substantial
evidence
to
support
the
ALJ's
findings
and
conclusions.
Plaintiff protectively filed his pending applications 1 for
sability insurance benefits and supplemental security income on
May II, 2009, alleging a disability onset date of April 24, 2009,
due
to
headaches,
seizures
and
applications were denied initially.
ld a
video
~~~Y'~sented
2010,
hearing
on
July
depression.
Plaintiff's
At plaintiff's request an ALJ
28,
2010,
at
which plaintiff,
by counsel, appeared and testified.
On August 20,
the ALJ issued a decision finding that plaintiff is not
disabled.
On March 2,
2011,
the Appeals Council denied review
making the ALJ's decision the final decision of the Commissioner.
Plaintiff was 43 years old at the time of the ALJ's decision
and is classified as a younger person under the regulations.'
C.F.R.
§§404.1563(c)
and
416.963(c}.
He
has
a
high
20
school
education and past relevant work experience as a meat cutter and
ivery driver, but he has not engaged in any substantial gainful
activity since his alleged onset date.
After
testimony
reviewing
from
plaintiff's
plaintiff
and
a
medical
records
vocational
and
expert,
hearing
the: ALJ
1
For purposes of plaintiff's Title II application, the ALJ found
that plaintiff met the disability insured status requirements of the Act
on his alleged onset date and had acquired sufficient coverage to remain
insured through March 31, 2013.
~A072
(Rev. 8/82)
2
concluded that plaintiff is not disabled within the meaning of: the
Act.
The ALJ found that although the medical evidence
establi~hes
that plaintiff suffers from the severe impairments of seizvres
(controlled by medication)
and depression,
those
impairme~ts,
alone or in combination, do not meet or equal the criteria of: any
of the impairments listed at Appendix 1
20 C.F.R., Part 404,
Subpart P.
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacity to perform simple, unskilled light work but
with certain restrictions recognizing the limiting effects of. his
impairments,
specifically,
he
cannot
drive
and
cannot
have
exposure to dangerous equipment or to extreme heat and cold.
14).
(R.
A vocational expert identified numerous categories of jobs
which plaintiff could perform based upon his age, education, work
experience and residual functional capacity, including cashieriand
Relying on the vocational expert's testimony, the ALJ
cleaner.
found that while plaintiff cannot perform his past relevant work,
he is capable of making an adjustment to work which exists in
significant numbers in the national economy.
Accordingly, the: ALJ
determined that plaintiff is not disabled.
i
The Act defines "disability" as the inability to engag$
substant
gainful activity by reason of a physical or mehtal
impairment which can be expected to
of
at
least
1382c (a) (3) (A) .
twelve
months.
42
for a continuous petiod
U.S.C.
§§423 (d) (1) (A)
i
and
The impairment or impairments must be so severe
that the claimant nis not only unable to do his previous work but
~A072
(Rev. 8/82)
- 3
cannot, considering his age, education and work experience, engage
in any other kind
national
substantial gainful work which exists in the
economy
42
II
U.S.C.
§§423 (d) (1) (B)
and
1382c (a) (3) (B) .
The Commissioner has promulgated regulations incorporating a
five-step sequent
a
claimant
evaluation process 2 for determining whether
is under a
disability.
20
C. F . R .
§ § 404 . 1520 • and
416.920; Newell v. Commissioner of Social Security, 347 F.3d 541,
545
(3d Cir.
2003).
disabled at any step,
If the claimant is found disabled or: not
the claim need not be reviewed further.
Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
Here, plaintiff raises the following challenges to the ALJ's
findings:
(1) the ALJ erred at step 3 by finding that plaintiff's
impairments
do
not
meet
the
c
teria
of
any
of
impairments; (2) the ALJ improperly assessed plaint
functional capacity; and,
(3)
that
all
of
the
listed
f's resipual
the ALJ failed to consider all of
plaintiff's impairments in combination.
satisfied
the
ALJ's
Upon review, the cou~t is
findings
are
supported
by
substantial evidence.
2
The ALJ must determine in sequence:
(1) whether the claimant
currently is
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 20 C.F.R. Part 404, Subpa~t P,
Appendix 1; (4) if not, whether the claimant's impairment prevents him
from performing his past-relevant work; and, (5) if so, whether the
claimant can perform any other work which exists in the national economy
in light of his age, education, work experience and residual functional
capacity.
20 C.F.R. §§404.1520 and 416.920.
In addition, when there
is evidence of a mental impairment that allegedly prevents a claimant
from working, the Commissioner must follow the procedure for evaluqting
mental impairments set forth in the regulations.
186 F. 2d at
432; 20 C.F.R. §§404.1520a and 416.920a.
I
~A072
(Rev. 8/82)
- 4
First, the court is satisfied that the ALJ's step 3 finding
is supported by substantial evidence.
determine
whether
equivalent
to,
the
one
claimant's
of
the
At step 3,
impairment
listed
the ALJ must
matches,
or
is
impairments.
Commissioner of Social Security Administration, 220 F.3d 112, 119
(3d
. 2000).
The listings describe impairments that prevent
an adult, regardless of age, education, or work experience,
performing any gainful activity.
Knepp v. Apfel, 204 F.3d 78.1 85
(3d Cir. 2000); 20 C.F.R. §§404.1520{d) and 416.920{d).
impairment
is
claimant]
per
necessary."
Here,
equivalent
se
to
~rom
a
disabled
listed
and
impairment
no
further
"If the
then
analysis
[the
is
Burnett, 220 F.3d at 119.
as required,
impairments
that
the ALJ identified the relevant listed
compare
stings 11.02 and 11.03)
with
plaintiff's
and depression
adequately explained why plaintif f' s
seizure
disorder
(Listing 12.04)
impairments,
and
alone or in
combination, do not meet or equal the severity of those listed
impairments.
(R. 12 14)
i
see Burnett, 220 F.3d at 120, n.2.
In
particular, as to plaintiff's seizure disorder, the ALJ noted that
plaintiff controls his seizures through medication.
(R. 12).
As
to plaintiff's depression, the ALJ found that plaintiff failed to
meet either the "B" or the "C" criteria of Listing 12.04.
{12
14) .
The ALJ's step 3 finding is well-supported by the medical
evidence.
meet
In finding that plaintiff's seizure disorder does not
sting 11.02 or 11.03,
the ALJ noted that plaintiff had
'<\it.AOn
(Rev. 8/82)
- 5
reported
in
consultant,
October
of
2009
to
Dr.
Lukacs,
a
neurolog~cal
that he had been seizure free since 2005,
and Dr.
Lukacs noted that plaintiff's seizure disorder was clinic~lly
stable.
Although
plaintiff
contests
the
ALJ's
statement
,
regarding the frequency of seizures by asserting that he did. not
report all of his seizures because he feared losing his driver's
license, the relevant listings are not met unless a claimant, can
show a typical seizure pattern "occurring more frequently than
once a month"
(Listing 11.02) or "occurring more frequently than
once weekly"
(Listing 11.03), and there is nothing in the record
to suggest that plaintiff had seizures at that frequency.
To the
contrary, as the ALJ noted, on physical examination plaintiff did
not show signs of having seizures and multiple EEG's
reveale~
brain activity consistent with epilepsy or similar trauma.
no
(R.
15) .
Substantial evidence likewise supports the ALJ' s finding that
plaintiff does not meet Listing 12.04 for depression.
more
than adequately explained his
conclusion
that
The ALJ
plaintiff
failed to meet either the "B" or the "C" criteria of Listing 12.04
and
his
conclusions
are
supported
by
the
objective
medical
evidence as well as the fact that no medical source found that
plaintiff meets
the requisite criteria.
(R.
12-14).
As • the
required level of severity is met only when the requirements in
both A and B of
the
listings are satisfied,
or when the
"C"
criteria of those listings are met, the ALJ correctly concluded
that plaintiff does not meet Listing 12.04.
<%AO 72
(Rev. 8/82)
- 6
To the
extent plaintiff
contends
that
the ALJ failect to
consider a number of GAF scores in determining whether plaintiff
meets Listing 12.04,
this argument is not well-taken.
score considers psychological, social and occupational
on
a
hypothetical
continuum
of
mental
health.
The GAF
functio~ing
See
American
Psychiatric Association,
Diagnostic and Statistical Manua], of
Mental Disorders (DSM- IV)
(4 th ed. 1994).
scale
is
because
not
its
disability
endorsed
scores
do
by
the
not
requirements
Social
have
and
a
While the use of the GAF
Security Administration
direct
standards
of
correlation
the
Act,
to
the
the
ALJ's
findings at step 3 that plaintiff has moderate difficulties in
social functioning and in concentration, persistence and pace are
consistent with the clinical GAF ratings
medical sources,
found by all of the
the lowest of which are ratings of 55,
indicates moderate symptoms.
which
It is clear from the record that the
ALJ considered all of the medical evidence in rating the severity
of plaintiff's depression and that his step 3 finding is supported
by that medical evidence.
Moreover,
plaintiff
has
failed
to
meet
his
burden
of
presenting any medical findings to either the ALJ or to this court
showing that any of his impairments, alone or in combination, meet
or equal any listed impairment.
F.2d 1178,
1186
(3d Cir.
See Williams v. Sullivan,. 970
1992).
To the contrary,
the medical
evidence of record does not support a finding that plaintiff meets
or equals any listing.
Accordingly, the court finds plaintiff's
challenge to the ALJ's step 3 finding to be without merit.
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(Rev. 8/82)
-
7
Plaintiffts remaining arguments relate to the ALJ's finding
of not disabled at step 5 of the sequent
evaluation process.
At that step, the ALJ must show that there are other jobs existing
in significant numbers in the national economy which the claimant
can
perform
consistent
with
his
medical
impairments,
age,
education, past work experience and residual functional capacity.
20
C. F . R .
§ § 4 04 . 152 0 (f)
and 416. 92 0 ( f) .
Residual
functional
capacity is defined as that which an individual still is able to
do despite the limitations caused by his impairments.
§§404.1545{a) and 416.945{a)
Here,
the
functional
ALJ
found
capacity
to
i
20 C.F.R.
Fargnoli, 247 F.3d at 40.
that
plaintiff
perform
retains
the
residual
work
wi th
several
light
restrictions accommodating his impairments.
(R. 14).
Although
plaintiff disputes this finding t it is clear from the record that
the
ALJ
adequately
considered
all
of
the
evidence, as well as plaintiff's reported act
relevant
medical
ties, in assessing
plaintiff's residual functional capacity t and that he incorporated
into his finding
1 of the limitations that reasonably could be
supported by the medical and other relevant evidence, including
the opinions of plaintiff's treating physician, Dr. Shoenthal:, as
well as the state agency medical consultant.
(R. 14 16).
. The
court is satisfied that the ALJ's residual functional capacity
finding is supported by substantial evidence.
Although plaintiff
now
contends
that
inquire of the vocational expert regarding
required
to
perform
the
jobs
listed tt
""Aon
(Rev. 8/82)
- 8
or
the
ALJ
failed
to
"the time on task
regarding
"absences
permitted,"
there simply is nothing in the
support any sort of
limitations
in this
record that wpuld
regard.
Plaintiff's
counsel at the administrative hearing did not ask any questions
regarding
time on-task
or
permissible
absences,
nor
has
plaintiff's current counsel on appeal pointed to any objective
evidence in the record that would support any sort of restrictions
in these areas.
The court has reviewed the record and has fOund
nothing to support any additional rest
by the ALJ
ctions beyond those f9und
his residual functional capacity.
Plaintiff's final argument is that the ALJ failed to consider
the combined effects of all of plaintiff's medical conditions,
both severe and non-severe,
functional capacity.
position.
"considered
in assessing plaintiff's residual
However, the record
Is to support that
The ALJ specifically noted in
s decision that he
all
symptoms"
in
assessing
plaintiff's
residual
functional capacity, and his findings demonstrate that he did just
that.
(R. 12-16).
consideration
The court is satisfied that the ALJ took into
1 of the medically supportable limitations arising
from all of plaintiff's impairments, in combination, and that the
ALJ's residual functional
substant
capacity assessment
is supported by
evidence.
Finally, to the extent that plaintiff contends that the ALJ
failed to consider the effect that migraine headaches have on
plaintiff's ability to work,
it is well settled that disability
is not determined merely by the presence of impairments, but by
the
effect
that
those
impairments
""'Aon
(Rev. 8/82)
- 9
have
upon
an
individual's
I
ability
to
perform
substantial
gainful
activity,
and
a
mere
diagnosis is insufficient to support a finding of disability.
Jones v.
Sullivan,
954 F.2d 125,
129
(3d Cir.
1991).
Here,
although Dr. Lukacs diagnosed plaintiff with migraines, plaintiff
has not suggested any additional restrictions arising from those
migraines that would be more limiting than those already accounted
for in the ALJ's residual functional capacity finding.
is
satisfied
migraines,
that
along
impairments,
the
with
ALJ
all
adequately
of
in arriving at
considered
plaintiff's
his
residual
other
The court
plaintiff's
symptoms
functional
and
capacity
finding.
After
carefully and methodically
considering all
medical evidence of record and plaintiff's testimony,
of ' the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
substantial
The ALJ's findings and conclusions are supported by
evidence
and
are
not
otherwise
erroneou$.
Accordingly, the decision of the Commissioner must be affirmed.
~~
Gustave Diamond
United States District
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
~A072
(Rev. 8/82)
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10
Judg~
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