POORMAN v. ASTRUE
Filing
15
MEMORANDUM JUDGMENT ORDER denying 11 plaintiff's Motion for Summary Judgment and granting 6 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 9/10/13. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DWAYNE B. POORMAN,
Plaintiff,
v.
Civil Action No. 12-168J
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'
~~ of
September, 2013, upon 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
income
("SS1")
under Titles
("DIBtI)
and supplemental security
II and XVI ,
respectively,
of
the
Social Security Act, IT IS ORDERED that the Commissioner's motion
for summary judgment (Document NO.6) 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 rej ect or discount
reasons for doing so.
Cir.
~A072
(Rev. 8/82)
1999).
substantial
any evidence
if
Plummer v. Apfel,
the ALJ explains
the
186 F.3d 422,
(3d
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,
it
is
decided
Massanari,
well
the
factual
247 F.3d 34,
settled
that
determined merely by the presence of
38
disability
impairments,
inquiry
(3d Cir.
is
not
but by the
effect that those impairments have upon an individual's ability to
perform substantial gainful activity.
125,
129
(3d
Cir.
1991).
These
==::..=..--"-'---'~=.=...!.=,
9 5 4 F. 2 d
well-established principles
preclude a reversal or remand of the ALJ's decision here because
the record contains substantial evidence to support the ALJ IS
findings and conclusions.
Plaintiff filed his applications for DIB and SSI on January
14, 2009, alleging disability beginning on November 30, 3008, due
to below the knee leg amputation, osteomyelitis and depression.
Plaintiff's applications were denied.
At plaintiff's request, an
ALJ held a hearing on June 28, 2010.
On September 3, 2010, the
ALJ issued a decision finding that plaintiff is not disabled.
The
Appeals Council denied plaintiff's request for review on June 15,
2012,
making
Commissioner.
the
ALJ's
decision
the
final
dec
ion
of
the
The instant action followed.
Plaintiff, who has a high school education, was 37 years old
on his alleged onset date of disability, and is classified as a
younger
individual
§§404 .1563 (c),
under
416.963 (c) .
the
regulations.
Plaintiff
has
past
20
C.F.R.
relevant
work
experience as a marine service center owner/operator and machine
maintenance worker, but he has not engaged in substantial gainful
activity at any time since his alleged onset date.
~A072
(Rev. 8/82)
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After
reviewing
plaintiff's
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 left leg
below the knee amputation and osteomyelitis,l 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 sedentary work with a number of additional
limitations.
Plaintiff is limited to walking and standing two
hours during an eight hour workday, and he must avoid pushing and
pulling with the left lower extremity.
In addition, plaintiff is
limited to only occasional climbing of ramps and stairs, and he
must avoid balancing, kneeling, crouching, crawling and climbing
ladders,
ropes
and scaffolds.
Finally,
plaintiff must
avoid
exposure to extreme heat, cold, humidity and wetness, as well as
hazardous conditions such as uneven surfaces
(collectively, the
"RFC Finding").
As a result of these limitations,
the ALJ determined that
lThe record indicates that plaintiff originally injured his left shin in
a work-related accident.
(R. 192-93, 518-19).
He subsequently developed a
chronic wound infection and osteomyelitis of the left tibia.
(R. 375, 411).
Plaintiff underwent numerous surgeries to
his left lower leg, but that
course was unsuccessful and his left leg was amputated below the knee in
January 2009.
(R. 375-77, 403, 411).
As discussed in more detail below,
plaintiff was fitted with a prosthetic leg and underwent rehabilitation in June
2009.
By September 2009, plaintiff's rehabilitation specialist reported that
he was doing well and he was continuing to work at his marine engine shop.
~A072
(Rev 8/82)
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plaintiff could not perform his past relevant work.
based upon the vocational expert/s testimony,
that
plaintiff's
capacity
enable
vocational
him
to
factors
perform
and
other
clerk, addresser or table worker.
the ALJ concluded
residual
work
significant numbers in the national economy,
However,
functional
that
exists
in
such as an order
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
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
to
do
his
previous
work
but
cannot,
considering his age, education and work experience, engage in any
other
kind
of
substantial
national economy .... "
gainful
work
which
exists
in
the
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 currently is engaged in substantial gainful activitYi (2)
if not, whether he has a severe impairment;
(3) if so, whether his
impairment meets or equals the criteria listed in Appendix 1; (4)
if
not
I
whether
the
claimant s
impairment
I
performing his past relevant work;
and
(5)
prevents
if so,
him
from
whether the
claimant can perform any other work that exists in the national
economy,
in light of his age,
education,
.Aon
(Rev. 8/82)
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sustain
his
burden
of
showing
that
his
leg
impairment
and
amputation meets, or equals, listings 1.0SB, 1.06B or 1.08.
First,
to
meet
listing
1.0SB,
a
claimant
must
have
an
amputation of a lower extremity at or above the tarsal region,
with stump complications resulting in medical inability to use a
prosthetic device to ambulate effectively which has lasted or is
expected to last for at least 12 months.
Although plaintiffls
left lower leg was amputated above the tarsal region, the medi
evidence shows that he did not have stump complications resulting
in an inability to use his prosthesis to ambulate effectively.
The
inability
to
ambulate
effectively
is
defined
in
§1.00B.2.b(1)
as an extreme limitation of the ability to walk
meaning
an
that
impairment
interferes
very
seriously with an
individual's ability to initiate, sustain or complete activities.
Examples
of
ineffective
ambulation
include,
inter
alia,
the
inability to walk without the use of a walkeri two crutches or two
canes and the inability to walk a block at a reasonable pace on
rough or uneven surfaces.
§1.00B.2.b(2) .
In this case, plaintiffls left leg was amputated below the
knee in January 2009.
(R. 375-77, 411).
In June 2009, plaintiff
was fitted with a prosthetic leg and underwent rehabilitation.
(R.
447-454).
Dr.
Michael Munin,
a rehabilitation specialist,
noted in September 2009 that plaintiff was wearing his prosthetic
leg 10-14 hours per day, he was doing well, he had full left knee
range of motion and good mobility of skin to bone,
occasional phantom limb pain.
(R. 461-62).
'l\l!,A072
(Rev 8/82)
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but he had
As of September 2009,
plaintiff reported to Dr. Munin that "[h]e continues to work at
his marine engine shop,
without
difficulty.
and he is able to carry heavy engines
461).
(R.
II
In October
2009,
Dr.
Munin
observed that plaintiff had no skin ulceration, great strength and
overall good mobility of skin to bone, that his gait was good and
that he was off all medications for phantom limb pain.
There
is
no
indication
that
plaintiff
had
(R.
any
457).
stump
complications which resulted in an inability to use his prosthetic
leg to ambulate effectively.
Indeed, plaintiff testified that he
did
wheelchair
not
use
crutches
prosthetic leg.
or
(R. 526).
a
after
he
received
his
Although plaintiff testified that he
had some difficulty walking on uneven surfaces, Dr. Munin did not
identify any such limitation in his records,
that plaintiff had a good gait.
but rather stated
Accordingly, the medical evidence
supports the ALJ's finding that plaintiff does not meet listing
1.058 because he could ambulate effectively with his prosthetic
leg within 12 months of the alleged onset date of disability.
Plaintiff's assertion that he meets
listing 1.068 3 and/or
1.08 4 also is without merit because those listings likewise require
that a claimant have an inability to ambulate effectively.
As
discussed above, plaintiff was able to ambulate effectively with
3 Listing 1.06B addresses fracture of the tibia and requires an inability
to ambulate effectively and return to effective ambulation does not occur or
is not expected to occur within 12 months.
4 Listing 1.08 deals with a soft tissue injury of a lower extremity under
continuing surgical management directed toward the salvage or restoration of
major function, and such major function was not restored or expected to be
restored within 12 months of onset.
~A072
(Rev. 8/82)
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his prosthetic leg within 12 months of his alleged onset date of
disability.S
For this reason, and those previously discussed, the
court
that
finds
plaintiff
does
the ALJ properly determined at
not
meet
all
of
the
criteria
of
step
any
3
that
listed
impairment.
Plaintiff next argues that the ALJ erred in assessing his
credibili ty,
thus his conclusion at step 5 that plaintiff can
perform other work that exists in the national economy is not
supported by substantial evidence.
his
work
activity
is
not
Plaintiff also contends that
inconsistent
with
a
finding
of
disability, and that the ALJ's RFC Finding is flawed because it
does not account for the episodic nature of his impairment.
These
arguments are without merit.
First, regarding the ALJ's credibility analysis, a claimant's
complaints and other subj ective symptoms must be supported by
objective medical evidence.
20 C.F.R. §§404.1529(c), 416.929(c)
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
i
An ALJ may
reject the claimant's subjective testimony if he does not find it
credible so long as he explains why he is rejecting the testimony.
SPlaintiff asserts that listings 1.06B and 1.08 are relevant to the time
period before his leg was amputated and now claims that the 12-month durational
period should have begun sometime in 2006.
Plaintiff presumably makes this
assertion because the evidence of record reveals that he could ambulate
effectively with his prosthetic leg within 12 months of his alleged onset date
of disability of November 30, 3008, thus he does not satisfy the durational
requirement of any listing he now claims to meet. This is not a case in which
the ALJ rejected plaintiff's alleged onset date of disability and selected a
date less favorable to plaintiff. Rather, the ALJ adopted November 30, 2008,
as the alleged onset date of disability, which is the date plaintiff himself
chose.
plaintiff never requested that the ALJ amend his alleged onset date,
nor did he raise this issue before the Appeals Council.
If plaintiff wished
to amend or challenge his alleged onset date, he should have done so during the
administrative proceedings, not before the district court in the first
instance, thus the argument is not properly raised here.
'l,j}.A072
(Rev. 8/82)
- 9
Schaudeck v. Commissioner of Social Security,
181 F.3d 429,
(3d
properly
Cir.
1999).
In
this
case,
the
ALJ
433
analyzed
plaintiff's subjective complaints, and he explained why he found
plaintiff's testimony not entirely credible.
In evaluating plaintiff's credibility, the ALJ complied with
the appropriate regulations and considered all of the relevant
evidence in the record, including plaintiff's own statements about
his limitations, his daily activities,
the extent and nature of
his treatment, the medical evidence and the opinions of physicians
who treated and examined him.
20 C.F.R.
§§404.1529(c) (1)
(c) (3), 419.929 (c) (I) - (c) (3) i Social Security Ruling 96-7p.
ALJ
then
considered
the
extent
to
which
plaintiff's
The
alleged
functional limitations reasonably could be accepted as consistent
with the evidence of record and how those limitations affect his
ability to work.
20 C.F.R. §§404.1529(c} (4), 419.929(c} (4).
The
ALJ determined that the objective evidence is inconsistent with
plaintiff's allegation of total disability.
Accordingly, the ALJ
determined that plaintiff's testimony regarding the pain and other
limitations caused by his condition was not entirely credible.
(R. 21).
This court finds that the ALJ adequately explained the
basis for his credibility determination in his decision,
(R. 20
22), and is satisfied that such determination is supported by
III.t.Aon
(Rev. 8/82)
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substantial evidence. 6
Plaintiff
also
argues
that
his
work
activity
is
not
inconsistent with a finding of disabilitYI and that the ALJ/s RFC
Finding is flawed because it does not account for the episodic
nature of his impairment.
to work at times
l
Although plaintiff admits he is able
he contends that he is not able to do so on a
consistent daily basis.
The ALJ noted in his decision that plaintiff testified he
could work approximately 35 hours per week at the boat repair
business he owned depending on how his leg felt.
In connection with his work activity, plaintiff reported
528) .
to Dr. Munin that he could carry heavy engines without difficulty.
(R.
211
461).
The Regulations provide that work a claimant has done after
his alleged onset date of disability may be probative of his
ability to engage in substantial gainful activity.
See 20 C.F.R.
§§404.1571 1 416.971 (\\ [e] ven if the work [a claimant has] done was
6 Pl a intiff also critiques the ALJ's credibility analysis by arguing that
the ALJ should have given his testimony substantial credibil
based on his
prior record of steady employment.
While it is true that the testimony of a
claimant with a long work history may be given substantial credibility
concerning his claimed limitations, see Dobrowolsky v. Califano, 606 F.2d 403
409 (3d Cir. 1979), work history is only one of many factors an ALJ may
consider in
a claimant's subjective complaints.
20 C.F.R.
§§404.1529(c) (3), 419.929(c) (3).
A claimant's work history alone is not
dispositive of the question of his credibility, and an ALJ is not required to
equate a long work history with enhanced credibility. See Christl v. Astrue,
2008 WL 4425817, *12 (W.D.Pa. September 30, 2008).
Here, the ALJ clearly was aware of plaintiff's work history and referred
to it in his decision when he determined that plaintiff could not perform his
past relevant work.
(R. 22).
It likewise is clear from the ALJ's decision
that he considered the record ~ ~
in assessing plaintiff's credibility
as discussed herein.
An exemplary work history in and of
itself is
insufficient to overcome the substantial evidence supporting the ALJ's
credibility determination in this case.
1
~A072
(Rev. 8/82)
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not substantial gainful activity, it may show that [he was] able
to do more work than [he] actually did.").
work activity was one factor,
Therefore, plaintiff's
among many others,
that the ALJ
properly considered in finding that he has the residual functional
capacity to perform a range of sedentary work.
that
all
medical
and
vocational
evidence
of
Id.
(explaining
record
will
be
considered in determining whether a claimant has the ability to
engage in substantial gainful activity) .
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.
/~~
Gustave Diamond
United States District Judge
cc: David M. Axinn, Esq.
106 Hollidaysburg Plaza
Duncansville, PA 16635
Stephanie L. Haines
Assistant U.S. Attorney
319 washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901
'!l.AOn
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