FICKES v. ASTRUE

Filing 17

ORDER denying 9 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 9/4/2014. (sps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON BYRON FICKES,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner
of Social Security,1
Defendant.

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Civil Action No. 3:13-288

AMBROSE, Senior District Judge

OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. (Docket Nos. 9
and 14). Both parties have filed Briefs in Support of their Motions. (Docket Nos. 10 and 15).
Plaintiff also has filed a Concise Statement of Material Facts and a Reply Brief. (Docket Nos. 11
and 16). After careful consideration of the submissions of the parties, and based on my Opinion
set forth below, I am granting Defendant’s Motion for Summary Judgment (Docket No. 14) and
denying Plaintiff’s Motion for Summary Judgment. (Docket No. 9).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (the “Act”) and for Supplemental Security Income (“SSI”)

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Carolyn Colvin became the Acting Commissioner of Social Security on February 14, 2013 and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).

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under Title XVI of the Act. Plaintiff applied for DIB and SSI in November 2010. (R. 171-83).
In his applications, he alleged that he had been disabled since May 1, 2009. Id.

Administrative

Law Judge (“ALJ”) Marty R. Pillion held a hearing on April 5, 2012, at which Plaintiff was
represented by counsel. (R. 28-66). Plaintiff appeared at the hearing and testified on his own
behalf. Id. A vocational expert also was present at the hearing and testified. (R. 57-65). In a
decision dated June 15, 2012, the ALJ found that jobs existed in significant numbers in the
national economy that Plaintiff could perform and, therefore, that Plaintiff was not disabled under
the Act.

(R. 14-24). Plaintiff requested review of the ALJ’s determination by the Appeals

Council, and, on November 1, 2013, the Appeals Council denied Plaintiff’s request for review.
(R. 1-4). Having exhausted all of his administrative remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 9 and 14).
The issues are now ripe for my review.
II.
A.

LEGAL ANALYSIS
STANDARD OF REVIEW

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d
900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Determining
whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler,
786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A
single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to
resolve, a conflict created by countervailing evidence.

Nor is evidence substantial if it is

overwhelmed by other evidence – particularly certain types of evidence (e.g., that offered by
treating physicians).”

Id.

The Commissioner’s findings of fact, if supported by substantial
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evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). A district court cannot conduct a de novo review of the Commissioner’s decision or
re-weigh the evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998).
Where the ALJ's findings of fact are supported by substantial evidence, a court is bound by those
findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial
evidence, the district court must review the record as a whole. See 5 U.S.C. § 706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 1382(a)(3)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. §§ 404.1520, 416.920. The ALJ
must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he 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, 416.920. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
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to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.

WHETHER THE ALJ ERRED IN DETERMINING THAT PLAINTIFF HAS THE
RESIDUAL FUNCTIONAL CAPACITY TO PERFORM SEDENTARY WORK
The ALJ determined as part of the sequential evaluation process that plaintiff retained the

residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a), except that he was limited to occasional balancing, stooping, and
climbing ramps and stairs; no kneeling, crouching, crawling, balancing or climbing ropes,
ladders, or scaffolds; no exposure to hazards such as heights or moving machinery; no exposure
to weather, wetness, temperature extremes, humidity, or atmospheric conditions such as smoke,
fumes, odors, gases, and poor ventilation; and occasional speaking. The ALJ further limited
Plaintiff to simple, routine, repetitive tasks and simple work-related decisions; infrequent changes
in work setting defined as no more than one per day; occasional interaction with co-workers and
supervisors; and no interaction with the public. The ALJ concluded that Plaintiff’s need to
elevate his legs would be accommodated by the normal morning, lunch, and afternoon breaks.
(R. 19).

Plaintiff argues that the ALJ=s RFC finding is not supported by the record evidence.

Specifically, he contends that the ALJ failed to include Plaintiff’s need for a sit/stand option and
insufficiently accounted for his need to elevate his legs.

Pl.=s Br. [ECF No. 10] at 2-3. This

argument is without merit.
Sedentary work involves lifting no more than 10 pounds at a time, and occasionally lifting
or carrying articles like docket files, ledgers, and small tools.

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Although a sedentary job is

defined as one which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met. 20 C.F.R. §§ 404.1567(a), 416.967(a). The responsibility
for deciding a claimant=s RFC rests with the ALJ and is based on the entire record.

20 C.F.R.

§§ 404.1545, 404.1546, 416.945, 416.946.
In this case, Plaintiff’s argument that the ALJ insufficiently accounted for Plaintiff’s alleged
need to alternate sitting and standing is unpersuasive.

As an initial matter, although the ALJ

acknowledged Plaintiff’s allegations regarding sitting limitations, he found that Plaintiff’s
statements concerning the intensity, persistence and limiting effects of his symptoms were not
credible to the extent they were inconsistent with the RFC assessment. (R. 19).

The ALJ also

declined to give great weight to the opinion of Ann Smith, M.D., who examined Plaintiff on March
6, 2012 and opined, inter alia, that Plaintiff could sit for a total of two hours in an eight-hour work
day. (R. 21, citing Ex. 5F).

Essentially, the ALJ found that such severe limitations were

inconsistent with the totality of the evidence, including generally unremarkable or mild diagnostic
studies and the claimant’s activities of daily living.

(R. 21).

As set forth more fully below, the

ALJ’s findings regarding Plaintiff’s credibility and the weight given to Dr. Smith’s opinions are
supported by substantial evidence.

Thus, the ALJ did not err by failing to include greater

sitting/standing restrictions in his RFC finding.
Even if Plaintiff did require a sit/stand option as alleged, the record does not support
remand to the Commissioner on this issue.

As recognized in Social Security Ruling 96-9p, “the

occupational base for a full range of unskilled sedentary work will be eroded” in cases where an
“individual may need to alternate the required sitting of sedentary work by standing (and,
possibly, walking) periodically.”

S.S.R. 96-9p, 1996 WL 374185, at *7.

Such situations,

however, do not mandate a finding of “disabled.” Rather, the Administration recommends that
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the ALJ “consult a vocational resource in order to determine whether the individual is able to
make an adjustment to other work.”

Id.; see also S.S.R. 83-12, 1983 WL 31253, at *4 (“In cases

of unusual limitation of ability to sit or stand, a [vocational specialist] should be consulted to
clarify the implications for the occupational base.”).

Contrary to Plaintiff’s suggestion, the

record contains vocational expert testimony on this very question.

Specifically, Plaintiff’s own

counsel asked the VE directly whether the three jobs she identified – surveillance systems/alarm
monitor, assembler, and document preparer – would permit a worker to sit/stand at his option.
(R. 63-64). In response, the VE testified that the sit/stand option would not be a problem for the
surveillance systems/alarm monitor position. (R. 64).

According to the VE, there are 10,000

surveillance systems/alarm monitor positions in the national economy, well more than a
“significant number” of jobs that Plaintiff could perform.2 See, e.g., Craigie v. Bowen, 835 F.2d
56, 58 (3d Cir. 1987) (200 jobs in the national economy was a significant number); Bennett v.
Barnhart 264 F. Supp. 2d 238, 259 (W.D. Pa. 2003).
Thus, even assuming that Plaintiff required the ability to sit/stand at his option, the
vocational expert testimony supports the ALJ’s finding that a significant number of jobs exist in
the national economy that Plaintiff could perform.

Accordingly, I find that remand is not

appropriate on this issue.
Plaintiff also argues, in cursory fashion, that the record does not support the ALJ’s finding
that normal morning, lunch, and afternoon breaks would accommodate Plaintiff’s need to elevate
his legs.

Pl.’s Br. [ECF No. 10] at 3.

He contends that this finding contradicts Dr. Smith’s

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Apparently recognizing this testimony, Plaintiff attempts to circumvent it by suggesting that he could not
perform the surveillance systems/alarm monitor position because that position requires communication
skills for which Plaintiff is limited. Pl.’s Br. [ECF No. 10] at 2-3. This argument is without merit. As an
initial matter, the ALJ included any communication limitations supported by the record in his RFC finding.
See R. 19 (limiting Plaintiff to occasional speaking, occasional interaction with co-workers and supervisors,
and no interaction with the public). Moreover, in response to Plaintiff’s counsel’s questioning, the VE
testified that a limitation to occasional speaking would not preclude a worker from performing the
surveillance systems/alarm monitor position. (R. 64).

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March 2012 examination and Plaintiff’s own testimony.

Id. This argument is unpersuasive.

Again, as set forth more fully below, substantial evidence supports the ALJ’s finding that
Plaintiff’s testimony was not fully credible and his decision to give only limited weight to Dr.
Smith’s opinions. Plaintiff does not point to any other evidence of record supporting any greater
limitations due to the swelling of his legs.
In short, I agree with defendant that the ALJ based his RFC assessment on the record
evidence which included treating physician opinions that plaintiff could work; generally normal
physical examinations; unremarkable clinical findings; and the performance of an array of
activities by Plaintiff.

See R. 19-22 and exhibits cited therein.

Because substantial evidence

exists in the record to support the ALJ=s conclusion that Plaintiff=s alleged impairments did not
preclude his performance of certain sedentary work, the court finds no error on this issue.
C.

WHETHER THE ALJ INADEQUATELY ADDRESSED EVIDENCE OF PLAINTIFF’S PAIN
Plaintiff argues that the ALJ failed to address the issue of Plaintiff’s pain as required by

the regulations. In particular, Plaintiff contends that the ALJ failed to list pain as a limiting factor
even though pain was addressed in the medical reports of three physicians, Dr. Smith (Ex. 5F),
Dr. Milad Shaker (Ex. 7F), and Dr. George Zlupko (Ex. 6F). I disagree.
Pursuant to 20 C.F.R. §§ 404.1529 and 416.929, the Commissioner must consider all
"symptoms, including pain," in the disability determination.

Statements of pain alone, however,

are not enough to establish a disability; the claimant must also present objective medical
evidence to show that the medical impairment "could reasonably be expected to produce the
pain or other symptoms alleged."

20 C.F.R. §§ 404.1529(a); 416.929(a); SSR 96-7p. Once

the Commissioner has determined from the "medical signs or laboratory findings" that the
claimant has an impairment which could reasonably produce the pain, then the Commissioner
must evaluate the intensity, persistence, and limiting effects of the Plaintiff’s symptoms to
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determine how the pain limits the claimant's capacity for work. 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1); SSR 96-7p.

In determining the limits on the claimant's capacity for work, the

Commissioner will consider the entire case record, including evidence from the treating,
examining and consulting physicians, observations from agency employees, and other factors
such as the claimant's daily activities, descriptions of the pain, precipitating and aggravating
factors, type, dosage, effectiveness, and side effects of medications, treatment other than
medication, and other measures used to relieve the pain. 20 C.F.R. §§ 404.1529(c), 416.929(c);
SSR 96-7p. The Commissioner also will look at inconsistencies between the claimant's
statements and the evidence presented. 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4).
Inconsistencies in a claimant's testimony or daily activities permit an ALJ to conclude that some or
all of the claimant's testimony about his limitations or symptoms is less than fully credible. See
Burns v. Barnhart, 312 F.3d 113, 129–30 (3d Cir. 2002). Although the ALJ may weigh the
credibility of the evidence, he must give some indication of the evidence he rejects and the
reasons for discrediting such evidence. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d
Cir. 2000). Ordinarily, an ALJ's credibility determination is entitled to great deference. See
Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003).
Plaintiff=s assertion that the ALJ failed to consider his pain complaints and any objective
findings related thereto is incorrect. To the contrary, the ALJ considered plaintiff=s complaints of
pain and properly concluded that those complaints were not fully credible and did not limit
plaintiff=s ability to perform sedentary work. The ALJ directly addressed Plaintiff’s allegations
that his impairments caused severe pain and did not reject his allegations entirely. Rather, the
ALJ incorporated numerous limitations related to Plaintiff’s pain complaints in his RFC finding.
See R. 19 (RFC finding containing limitations on, inter alia, balancing, stooping, climbing,
kneeling, crouching, and crawling). Nevertheless, the ALJ discussed the fact that Plaintiff’s
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self-reported activities of daily living were inconsistent with an individual experiencing totally
debilitating symptomology. (R. 21). For example, Plaintiff reported that he was able to care for
his son, attend church, and shop. See id. The ALJ also thoroughly analyzed the medical
evidence, including relatively mild or unremarkable diagnostic findings that were not consistent
with a finding of totally disabling pain. See R. 19-22 and medical records cited therein.
Plaintiff’s allegation that the ALJ specifically failed to address his pain as reflected in Dr.
Smith’s, Dr. Shaker’s, and Dr. Zlupko’s reports is likewise groundless. With respect to Dr. Smith,
a treating physician who examined Plaintiff in March 2012, the ALJ actually acknowledged her
notes as evidence that Plaintiff experienced pain in both hips that is exacerbated by obesity and
that he was diagnosed with osteoarthritis of both hips and Calve-Legg-Perthes disease. (R. 20).
The ALJ also cited as evidence Dr. Smith’s representation that Plaintiff had experienced
shortness of breath with exertion and chest pain, and had been diagnosed with obesity, chronic
obstructive pulmonary disease, and gastroesophageal reflux disease.

Id.

Consistent with

applicable regulations, however, the ALJ appropriately gave Dr. Smith’s opinions regarding the
degree of Plaintiff’s resulting functional limitations limited weight after determining that they were
inconsistent with the totality of the evidence, including the generally mild and unremarkable
diagnostic studies and the Plaintiff’s activities of daily living. See R. 21; 20 C.F.R. §§ 404.1527;
416.927 (the opinion of a treating physician is to be given controlling weight only when it is
well-supported by medical evidence and is consistent with other evidence in the record).
Plaintiff’s contention that Dr. Shaker’s and Dr. Zlupko’s records further support Plaintiff’s
alleged pain is simply incorrect. The cited evidence from Dr. Zlupko merely summarizes a
January 31, 2012 consultation regarding an abnormal CT of Plaintiff’s chest.
403-405).

Ex. 6F (R.

Dr. Zlupko’s record does not reflect any pain complaints. To the contrary, the notes

indicate that Plaintiff denied chest pain and that, while he appeared morbidly obese, there were
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no signs of acute distress present and no apparent discomfort. (R. 404). Dr. Shaker’s records
relate to Plaintiff’s brief hospitalization from July 25-27, 2012 after a fall/fainting episode. Ex. 7F
(R. 419-20). Although Dr. Shaker’s notes reference Plaintiff’s diagnoses of obesity and edema,
the records do not support a finding of disabling pain resulting from those conditions. Rather, the
records state that Plaintiff had normal test results, including a stress test and echocardiogram,
that he was “feeling better” and “back to his baseline,” and that he was going to be discharged on
the same home medications without any changes. See id.
For all of these reasons, I find that substantial evidence supports the ALJ's ruling and his
rejection of parts of Plaintiff’s testimony as not fully credible. See Burns, 312 F.3d at 130.
C.

WHETHER THE ALJ FAILED TO COMPLY WITH AGENCY POLICY ON OBESITY
Plaintiff argues that the ALJ failed to Comply with agency policies concerning obesity.

Pl.’s Br. [ECF No. 10] at 4-5 (citing Social Security Ruling 02-1p). Specifically, Plaintiff contends
that the ALJ failed to (1) address Plaintiff’s obesity as a severe impairment at Step 2; (2) evaluate
the severity of Plaintiff’s impairments in respect to meeting or equaling the Listings of Impairments
at Step 3; and (3) consider obesity in assessing Plaintiff’s RFC, especially regarding the sit/stand
option. Id. This argument is entirely without merit.
First, Plaintiff’s allegation that the ALJ failed to address his obesity as a severe impairment
at Step 2 grossly misstates the facts. As set forth in bold in his findings of fact and conclusions of
law, the ALJ found that Plaintiff had numerous severe impairments, including obesity. See R. 16
(naming “obesity” first on a list of over 20 severe impairments). Likewise, at Step 3, the ALJ
explained that he considered all of Plaintiff’s impairments, both singly and in combination, and
that none of them met or equaled the severity of any of the listed impairments in 20 C.F.R. pt. 404,
subpt. P, App’x 1. See R. 17 (considering, inter alia, sections 1.00 (musculoskeletal system);
3.00 (respiratory system); 4.00 (cardiovascular system); 11.00 (neurological); and 12.00 (mental
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disorders)). Thirdly, the ALJ plainly considered obesity in assessing Plaintiff’s RFC. In addition
to explaining that he considered all of Plaintiff’s symptoms in reaching his RFC finding, the ALJ
specifically cited treating physician notes indicating, inter alia, that Plaintiff’s obesity exacerbated
his hip pain and that Plaintiff experienced swelling in his legs and antalgic gait due to morbid
obesity and peripheral vascular disease. See R. 20 (citing Ex. 5F). Although, as explained
above, the ALJ appropriately gave the physician’s opinions regarding the degree of Plaintiff’s
resulting functional limitations limited weight after determining that they were inconsistent with the
totality of the evidence, he nevertheless incorporated numerous limitations related to Plaintiff’s
obesity and other complaints in his RFC finding

See R. 19-22 (limiting Plaintiff to sedentary

work with no balancing; no climbing ropes, ladders or scaffolds; no kneeling, crouching, and
crawling; no exposure to hazards such as heights or moving machinery; and no exposure to
weather, wetness, temperature extremes, humidity or atmospheric conditions such as smoke,
fumes, odors, gases, and poor ventilation).
Plaintiff’s argument that his obesity required a sit/stand option does not change this result.
As set forth above, even if true, VE testified that a sit/stand option would not be a problem for the
surveillance systems/alarm monitor position she identified as one of the jobs a hypothetical
individual with Plaintiff’s limitations could perform.

(R. 64).

Thus, even assuming that

Plaintiff’s obesity required him to sit/stand at his option, the vocational expert testimony supports
the ALJ’s finding that a significant number of jobs exist in the national economy that Plaintiff
could perform.
Nothing in Social Security Ruling 02-1p, to which Plaintiff cites without elaboration,
requires remand on this issue.

Ruling 02-1p, titled “Evaluation of Obesity,” provides guidance

concerning the evaluation of obesity in SSI and DIB claims.

S.S.R. 02-1p, 2000 WL 628049.

Although the Ruling indicates that the ALJ should evaluate a claimant’s obesity at all applicable
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steps of the sequential evaluation process, it emphasizes that a diagnosis of obesity does not
require a finding of decreased function or disability.

Rather, the ALJ must evaluate each case

based on the information in that particular case record.

See id.

As set forth above, the ALJ in

this case properly considered Plaintiff’s obesity at all applicable steps of the evaluation process.
Accordingly, I find no error in this regard.
III.

CONCLUSION

For all of the foregoing reasons, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON BYRON FICKES,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 3:13-288

AMBROSE, Senior District Judge

ORDER OF COURT
AND NOW, this 4th day of September, 2014, after careful consideration of the submissions
of the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered
the decision of the ALJ is affirmed and Plaintiff’s Motion for Summary Judgment (Docket No. 9) is
DENIED and Defendant’s Motion for Summary Judgment (Docket No. 14) is GRANTED.

BY THE COURT:

/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge