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McCarty v. Astrue

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


November 13, 2008

DEBORAH K. MCCARTY, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT

The opinion of the court was delivered by: Judge Muir

(Complaint Filed 3/7/08)

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Deborah K. McCarty's claim for social security disability insurance benefits and supplemental security income benefits.

Disability insurance benefits (DIB) are paid to an individual if that individual is disabled and is "insured," that is, the individual has worked long enough and paid social security taxes to qualify therefor. In order to be eligible for disability insurance benefits, an individual must be disabled and also insured. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that McCarty meets the insured status requirements of the Social Security Act through December 31, 2010. In order to establish entitlement to disability insurance benefits McCarty must establish a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), ()(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990). Supplemental security income (SSI) is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind and disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

McCarty, who was born on February 25, 1958, claims that she became disabled on April 19, 2006, because of arthritis, osteoporosis, Turner's Syndrome, high blood pressure, morbid obesity, depression, restless leg syndrome and diabetes. Tr. 85 and 90.*fn1 At the time of the onset of her alleged disability, Taylor was employed as a receptionist or appointment clerk for H&R Block Tax Services, 202 N. 3rd Street, Clearfield, Pennsylvania. Tr. 77, 91, 97, and 101. From January through April, 2006, McCarty worked at H&R Block 40 hours per week and from May through December 2006, she worked 6 hours per week. Tr. 91, 101 She also had prior employment as a cashier and a group home aide. Tr. 97.

On April 24, 2006, McCarty protectively filed applications for disability insurance benefits and supplemental security income benefits.*fn2 After her claims were denied initially, a hearing was held on August 7, 2007, before an administrative law judge. Tr. 284-313. On August 20, 2007, the administrative law judge issued a decision denying McCarty's applications for benefits. Tr. 13-24. McCarty filed a request for review of the decision with the Appeals Council of the Social Security Administration. Tr. 9 and 283. On January 23, 2008, the Appeals Council concluded that there was no basis upon which to grant McCarty's request for review. Tr. 5-7. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On March 7, 2008, McCarty filed a complaint in this court requesting that we reverse the decision of the Commissioner denying her disability benefits. The Clerk of Court assigned responsibility for this case to Judge Caputo but referred it to Magistrate Judge Blewitt for preliminary consideration.

The Commissioner filed an answer to the complaint and a copy of the administrative record on April 16, 2008. By order of September 12, 2008, the case was reassigned to the undersigned judge for disposition. After being granted two extensions of time, McCarty filed her brief on August 7, 2008, and the Commissioner after being granted an extension of time filed his brief on October 7, 2008. The appeal became ripe for disposition on October 27, 2008, when McCarty elected not to file a reply brief.

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

Substantial evidence "does not mean a large or considerable amount of evidence, but 'rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

To receive disability benefits, a plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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 gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) engaged in substantial gainful activity after the onset of the alleged disability,*fn3 (2) has an impairment that is severe or a combination of impairments that is severe,*fn4 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn5 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn6

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

In this case the administrative law judge at step one found that McCarty had not engaged in substantial gainful activity since April 19, 2006. The administrative law judge noted that McCarty "worked after April 19, 2006, as a receptionist, but for wages earned which did not qualify as substantial gainful employment[.]" Tr. 14.

At step two, the administrative law judge found that McCarty suffered from the following severe impairments: arthritis, osteoporosis, non-insulin-dependent diabetes mellitus, Turner's Syndrome,*fn7 hypertension, obesity and a depressed mood. Tr. 15. The administrative law judge also found that McCarty suffered from obstructive sleep apnea, restless leg syndrome, and vertigo but that those impairments were not severe. Tr. 16.

At step three, the administrative law judge found that McCarty's impairments did not individually or in combination meet or equal a listed impairment. Tr. 16.

At step four, the administrative law judge, after considering all of McCarty's medically determinable impairments both severe and non-severe, found that McCarty has the residual functional capacity to perform the exertional demands of sedentary work, with certain modifications. Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. §§ 404.1567(a), 416.967(a). 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. Id. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id.

The administrative law judge concluded that McCarty could not lift more than 10 pounds and sit more than 6 hours during an 8 hour workday. Tr, 21. McCarty was limited to occasional walking and standing and could not balance, stoop, kneel, crouch, crawl or climb. Tr. 21. Furthermore, McCarty was to be afforded the option to sit and stand during the workday every 30 minutes or so and was limited to low stress work activity. Tr. 21. Based on the testimony of vocational expert a who took into account the above exertional limitations, the administrative law judge found that McCarty had the ability to perform her past work as a receptionist or appointment clerk. Consequently, McCarty was not disabled and it was unnecessary to consider step five of the sequential evaluation process.

At this point we will review McCarty's employment history, her educational background, her daily activities and the medical evidence relevant to McCarty's disability claim.

From 1992 through 1998, McCarty worked as a cashier for Kentucky Fried Chicken and Hardee's. Tr. 97. When answering a written questionnaire which was submitted to the Social Security Administration, McCarty stated that she used a cash register and a deep frier and that she "just handed the customers there (sic) orders." Tr. 99. McCarty indicated that she worked 5 hours per day, 5 day per week and that during a 5 hour workday she would walk, stand, sit, stoop, crouch, handle, grab or grasp big objects, reach, and write, type or handle small objects. 99.*fn8 In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and that she frequently lifted 5 pounds. Tr. 99. "Frequently" was defined as meaning from 1/3 to 2/3 of the workday.

From January, 1999 through December 2006, McCarty worked as a receptionist for H&R Block. Tr. 97 and 101. When answering a written questionnaire which was submitted to the Social Security Administration, McCarty stated that she would greet people, answer phones and schedule appointments. Tr. 101. McCarty stated she "used machines, toosl or equipment," she did not "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 101. McCarty indicated that she worked 8 hours per day, 5 day per week and that during an 8 hour workday she would walk, stand, sit and reach, and write, type or handle small objects. Tr. 101. In the questionnaire she also stated that the heaviest weight she lifted was 5 pounds and that she frequently lifted 5 pounds. Furthermore, as earlier noted in this order McCarty stated that from May through December 2006, she only worked 6 hours per week at H&R Block. Tr. 101.*fn9

In addition to her work for H&R Block, McCarty from 1999 through 2000 worked as a cashier for Rite Aid and Giant Stores and during 2001 she worked as an aide at Raystown Developmental Services, a mentally retarded group home. Tr. 97 and 292

With regard to the cashier positions at Rite Aid and Giant Stores, McCarty stated that she used a cash register and "packed customers bags and put [the bags] in grocery cart[s]." Tr. 100. In the written questionnaire, McCarty stated that she "used machines, tools or equipment," she did "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 100. McCarty indicated that she worked 5 hours per day, 5 day per week and that during a 5 hour workday she would walk, stand, crouch, handle and grab big objects, reach, and write, type or handle small objects. Tr. 100. In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and she frequently lifted 10 pounds.

With regard to the aide position at the mentally retarded group home, McCarty stated she "used machines, tools or equipment," she did not "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 98. McCarty indicated that she worked 8 hours per day, 5 days per week and that during an 8 hour workday she would walk, stand, sit, stoop, crouch, handle, grab or grasp big objects, reach, and write, type or handle small objects. Tr. 98. In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and was not sure how much she frequently lifted.

Tr. 98. McCarty stated that she used a dishwasher and a washer and dryer and had to have knowledge of CPR and first aid. Tr. 98.

At the hearing before the administrative law judge on August 7, 2007, McCarty testified that she could not work because of osteoporosis, sleep apnea, and back problems, and because she did not feel like doing anything because of depression. Tr. 295. McCarty also testified that she had never seen a psychiatrist or counselor, and was taking Prozac, which made her feel better and happier. Tr. 293.

McCarty stated that she has a driver's license and that she drives to town "maybe two times a week." Tr. 289. McCarty testified that she has a high school education and does not have difficulty reading. 289-290. McCarty's daily activities include watching television in the "morning and afternoon and evening." Tr. 290. McCarty told the administrative law judge that she was able to watch a television program and then tell someone else what occurred during the program. Tr. 290.

McCarty testified that she is approximately 5 feet tall and weighs 281 pounds, that she does housework, including washing the dishes and doing the laundry, that she can walk 100 yards without taking a break, and even with a walker she could not go much farther. Tr. 290 and 296-297. She acknowledged that she was only taking Advil for pain. Tr. 295-96.

McCarty testified that she goes to the county fair and walks around at the fair for 45 minutes before she has to sit down. Tr. 297. McCarty testified that if she sits for a long period of time she starts "twitching" and her back starts hurting. Tr. 297. When asked how long she could sit before having to change positions she stated "maybe a half hour." Tr. 297. She testified that the most she could carry was a gallon of milk,*fn10 that she is able to take care of her personal needs such as bathing and dressing, that she cooks, that she cleans "as much as she can," and that she shops for groceries with her husband; that she is able to go to the movies, visit with neighbors, check on the mail, and work at a candy store as a cashier at least 3 hours per month. Tr. 297-301. She testified that her husband plays country music and that she goes "out where he plays, to different places. " Tr. 300. McCarty further testified that at night she waits up for her husband who does not get home from work until 1:30 a.m. and does not get to sleep until 2:00 a.m. Tr. 302. Mr. McCarty testified that his wife is tired and sleepy when he gets home from work, and that she takes naps during the day. Tr. 306.

The administrative law judge in rendering his decision found that McCarty's claims regarding her pain and exertional limitations were "exaggerated and inconsistent with the totality of the evidence, including with the clinical and objective findings of record." Tr. 18.

At this point we will review the medical evidence. On May 6, 2005, McCarty had an x-ray of the lumbar spine, sacrum and coccyx. The report of that x-ray states in pertinent part as follows:

How is Patient Transported? A - Ambulatory * * * * * * * * * *

Clinical reason for exam: [Low Back Pain] * * * * * * * * * *

IMPRESSION: MILD DEGENERATIVE CHANGES WITH NO ACUTE FINDINGS.

Examination of the lumbar spine, sacrum and coccyx were performed on 05/06/05 in this 47 year old with low back pain.

The mineralization is normal. The vertebral bodies and the pedicel are intact. There is marginal osteophytosis at all levels. The disc spaces are preserved. Sagittal alignment is normal. There is no spondylolisthesis or spondylolysis. There is a minimal levoscoliosis.

The sacrum and coccyx are intact.

Tr. 191.

On May 21, 2005, McCarty was involved in a motor vehicle accident during which she struck the right side of her head on the front seat passenger door. She was treated at the J.C. Blair Memorial Hospital, Huntingdon, Pennsylvania, and a CT scan*fn11 of the head and x-rays of the cervical spine and skull were taken. Tr. 135-137. The CT scan suggested a possible fracture of the right frontal bone. The x-ray of the skull revealed no evidence of skull fracture. Tr. 136. The x-rays of the cervical spine revealed degenerative changes in the cervical spine without evidence of acute bony abnormality. Tr. 136.

On July 10, 2005, McCarty underwent an overnight polysomnogram or sleep study. Tr. 150. Thomas O. Pearson, M.D., who performed the study diagnosed McCarty with obstructive sleep apnea syndrome. Tr. 150.*fn12 Dr. Pearson recommended CPAP therapy*fn13 and weight loss. Tr. 149 and 150. On August 20, 2005, Dr. Pearson noted that McCarty was responding well to the CPAP machine but recommended a sleep aid such as Ambien or Lunesta because of CPAP mask intolerance. Tr. 142.

On July 28, 2005, Carroll P. Osgood, M.D., evaluated McCarty for vertigo. Tr. 211-212. The report of that evaluation states in pertinent part as follows:

Debbie McCarty, a pleasant 47-year old receptionist for H&R Block, is seen in neurosurgery follow-up today, 7/27/05.

Debbie had been in a motor vehicle accident on 5/21/05, at which time she was a restrained front seat passenger, who struck her forehead.

She was not rendered unconscious, but has had some positional vertigo since her accident. If she turns her head quickly at night she sometimes experiences vertigo. If she straightens up quickly, like hanging up clothes or bending over to do household chores, she may experience the rapid onset of vertigo. She denies definite tinnitus or hearing loss in either ear.

IMPRESSION: Benign positional vertigo*fn14 after [motor vehicle accident] 5/21/05, no [loss of consciousness]. History of Turner's syndrome, previously diagnosed by chromosomal studies.

Severe exogenous obesity -- progressive.

PLAN: I see no need for follow-up visit from our standpoint unless her pain become (sic) more frequent or severe. It should gradually resolve.

Tr. 211-212. In August, 2005, McCarty stated that her vertigo/dizziness was much better overall and that it mostly happens "when she goes and lays down at night." Tr.182. At a medical appointment on September 14, 2005, McCarty stated that her vertigo/dizziness was "occurring every night" but only "lasts a few minutes then goes away." Tr. 181. She also stated that it happens when she bends over and then goes to an upright position. Tr. 181.

On September 26, 2005, Franklin Berkey, M.D., McCarty's treating physician, completed an Employability Assessment Form for the Pennsylvania Department of Public Welfare. Dr. Berkey concluded that McCarty was temporarily disabled from September 26, 2005, to February 28, 2006, because of vertigo and obstructive sleep apnea. Tr. 213.

From May 4, 2005, through June 13, 2007, McCarty had routine medical appointments at Mount Union Area Medical Center for sleep apnea, arthritis, hypertension, obesity, vertigo/dizziness, osteopenia, Turner's Syndrome, restless leg syndrome, complaints of shoulder pain, and diabetes. Tr. 158-197 and 233-245.

On October 12, 2005, McCarty had a DEXA*fn15 or bone density scan at the Department of Radiology, J.C. Blair Memorial Hospital. Tr. 176. The report of that scan which referred to a previous scan of December 21, 1999, states in part as follows:

IMPRESSION: FINDINGS CONSISTENT WITH STABLE LOW BONE MINERAL DENSITY AS THERE HAS BEEN PROGRESSION OF THE DEGENERATIVE CHANGES IN THE LUMBAR SPINE.

Tr. 176. The report revealed that the Bone Mineral Density (BMD) of the anterior-posterior spine at the L2-L4 levels was .929 g/cm2 or a T-score (which is the patients score expressed in number of Standard Deviations (S/D) from the mean BMD of a young normal adult) of -2.3. This BMD represented a "interval increase of 7.6%." The report further revealed that the BMD of the femur neck was .736 g/cm2 or a T-score of -2.0. This represented an "interval change of less than 4% which is not clinically significant." Tr. 176. The report noted that "a change of 4% or greater is clinically significant." Tr. 177. The report stated that a T-score of "between -1.0 and -2.5 is considered low bone mass and indicates a borderline fracture risk and a risk of future development of osteoporosis." Tr. 176 (emphasis in original).

The report further noted that a T-score "below -2.5 is considered osteoporosis and represents a significant risk of fracture." Tr. 176 (emphasis in original). The October 12th DEXA scan found low bone mass not osteoporosis. However, in September of 2006, McCarty had a bone density scan which revealed a lumbar spine T-score of -2.2 and a femur neck T-score of -3.1 which indicates that McCarty has osteoporosis and a significant risk of fracture. Tr. 230.

On March 28, 2006 McCarty had a medical appointment where she complained of right shoulder pain and as a result of that complaint of pain an x-ray of the right shoulder was performed on the same day. Tr. 161. The x-ray revealed "[m]ild degenerative changes . . . at the acromioclavicular joint"*fn16 and that "[t]here are no fractures.". Tr. 163. On April 28, 2006, McCarty had a medical appointment where she still complained of shoulder pain. She stated that the pain was "worse in [the] AM" but that she takes 2 Advil which "works better" than Motrin and that the "pain eases by mid-day." Tr. 160. The medical notes of a May 22, 2006, appointment do not reveal that McCarty was complaining of shoulder pain. Tr. 159.

On July 5, 2006, Shannon Fegan, a physician's assistant, noted that McCarty's gaint was normal. Tr. 158. Ms. Fegan further stated as follows: "I have explained numerous times to [Ms. McCarty that] she needs to diet, exercise regularly, and work on weight loss. Have offered numerous suggestions, all minimal avail. She is starting an exercise program [at] HealthSouth. I do not feel her arthritis is disabling; just limiting her endurance; again, exacerbated by obesity." Tr. 158.

On August 15, 2006, McCarty requested pain medication and a walker. Tr. 238. On August 16, 2006, Ms. Fegan noted that McCarty's arthritis had not been that severe in the past, and that she had "not found any reason to justify her requests." Tr. 238. An August 16, 2008, rheumatoid arthritis (RA) test was negative. Tr. 247. Also, an August 18, 2006, an antinuclear antibody panel (ANA), a test which is given to detect the presence of diseases such as lupus erythematosis, rheumatoid arthritis and sclerodoma, was negative. Tr. 246.

In April 2006, and June 2006, Dr. Berkey, McCarty's treating physician, completed Employability Assessment Forms for the Pennsylvania Department of Public Welfare. On both dates, Dr. Berkey concluded that McCarty was employable with medications. Tr. 243 and 245.

On July 24, 2006, a medical consultant completed a residual functional capacity assessment form for the Social Security Administration. Tr. 117-23. Based upon his review of the evidence, the consultant found that McCarty could perform a full range of light work. Tr. 118-20.*fn17 The consultant noted that McCarty's daily activities were not significantly limited as a result of her alleged symptoms. Tr. 122.

The administrative record contains treatment notes from Howard Aylward, M.D., for the period September 6, 2006 through January 31, 2007. Tr. 217-31. Dr. Aylward treated McCarty for osteoporosis, complaints of low back pain, Turner's syndrome, obesity, and Vitamin D deficiency. Tr. 218-20, 227, and 230.

On September 6, 2006, McCarty had an appointment with Dr. Aylward. Dr. Aylward's notes of that appointment reveal that McCarty had no history of swollen joints, psoriasis, or other systemic inflammatory rheumatic disease. Tr. 220-222. Dr. Aylward reviewed a September 6, 2006 x-ray of the lumbar spine with McCarty, which was normal,*fn18 and explained to her that her insurance would not cover a scooter given her ability to walk. Tr. 221 and 229. Dr. Aylward's assessment of McCarty was that her "backache" was "related to weight and posture" and explained this assessment to McCarty "to some extent." Tr. 221. He did also note McCarty's Turner's syndrome and scheduled a DEXA scan to check for osteoporosis. Tr. 221.

On September 11, 2006, Dr. Aylward spoke with Physician's Assistant Fegan, and reviewed records sent by her, including the tests performed to detect the presence of rheumatoid arthritis. Tr. 220. Dr. Aylward told Ms. Fegan that he gave McCarty a prescription for a walker, but stated that McCarty did not qualify for a scooter. Tr. 220. The medical notes indicate also that Dr. Aylward after reviewing the DEXA scan results from 2005 did consider cancelling the DEXA scan mentioned earlier in this order. However, a DEXA scan was performed which Dr. Aylward concluded showed that McCarty suffered from osteoporosis. Tr. 218.*fn19 Also, after reviewing the records sent to him, he found "no significant rheumatoid findings" and "no significant arthritis." Tr, 220.

McCarty's next appointment with Dr. Aylward was on November 15, 2006, Tr. 218. At that appointment McCarty told Dr. Aylward that she felt well. TR. 218. McCarty appeared comfortable with no muscle complaints. Tr. 218. Dr. Aylward noted that "[a]t [the] last visit in September, she had a DXA scan with low T-scores . . . Laboratory studies were ordered for secondary causes of osteoporosis. Her Vitamin D level was very low at 9. She was, therefore, put on Vitamin D 50,000 units weekly." Tr. 218. Dr. Aylward's assessment of McCarty was as follows:

1. Turner's syndrome with osteoporosis secondary to the syndrome.

2. Vitamin D deficiency. . . . Tr. 218.

On July 24, 2006, Edward Zuckerman, Ph.D., a psychological consultant, completed a Psychiatric Review Technique form for the Social Security Administration. Tr. 198. Based on his review of the records, Dr. Zuckerman found that McCarty did not have a medically determinable mental impairment. Tr. 198-210. Dr. Zuckerman specifically noted that McCarty had neither been diagnosed with depression nor had she been treated for depression.

Tr. 210. Dr. Zuckerman also noted that although McCarty expressed some depressive feelings, they did not limit her. Tr. 210.

On May 2, 2007, McCarty had an appointment with David S. Miller, M.D., regarding a discharge from her navel. Tr. 256-257. Dr. Miller's report of that appointment states in toto as follows:

[Subjective]: Deb had a lapraroscopic exam in 1976. She states that a month ago she had drainage, bloody, brown, odorous material through the umbilicus and ` this occurred last week. She did not have a fever, chills, abdominal pain. The area is not pruritic or red. No obvious trauma.

She is also concerned about depression which has been chronic. Feeling of sadness, depression but little in the way of sleep or appetite suppression. No suicidal intent or ideation. She has never had delusions.

[Objective Physical Examination]: She remains obese. Speech and affect seemingly normal. Thought content rational. Abdomen, soft, non-tender, massively obese.

I could not detect any herniation or tenderness of the umbilicus, with a q-tip I was unable to probe any obvious defect. The area was not reddened, no unusual odor.

[Assessment]: Possible abdominal wall fistula, will ask Dr. Schall to see her. History of depression, Turner's syndrome, [hypertension].

[Plan]: Referral to Dr. Schall. She may begin Prozac 20 mg po qd. Recheck here in 6 weeks.

Tr. 257. On June 13, 2007. McCarty had an appointment with Dr. Miller at which time McCarty reported that she felt much improved within days of starting Prozac. Tr. 254. Dr. Miller's report of the appointment states in pertinent part as follows:

[Subjective]: . . . No excessive sweating, changes in bowel habits and she has had a modest blunting of her appetite which makes her happy. She is to see Dr. Schall about the abdomen.

[Objective Physical Examination]: . . . I could not detect a discharge.

[Assessment]: 1) Possible fistula, abdomen.

2) Overweight

3) Depressed mood. [Plan]: Continue Prozac . . . Recheck here in 3 months. She is not to stop the Prozac suddenly.

Tr. 254. The administrative record does not contain medical reports from Dr. Schall.

We will now consider McCarty's arguments. McCarty first argues that the administrative law judge erred when he found at step three of the sequential evaluation process that McCarty's impairments did not meet or functionally equal an impairment listed in the Social Security regulations. We find this argument devoid of merit.

At step two the administrative law judge found that McCarty suffered from severe impairments.*fn20 If McCarty's severe impairments met or equaled a listed impairment, she would have been considered disabled per se and awarded disability benefits. However, a claimant has the burden of proving that his or her severe impairment or impairments meet or equal a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). To do this a claimant must show that all of the criteria for a listing are met Id. An impairment that meets only some of the criteria for a listed impairment is not sufficient. Id.

The administrative law judge concluded that McCarty did not have an impairment or combination of impairments which meets or equals any of the listed impairments in 20 C.F.R. pt. 404, subpart P, app. 1. To qualify for benefits by showing that an impairment, or combination of impairments, is equivalent to a listed impairment, McCarty bears the burden of presenting "medical findings equal in severity to all the criteria for the one most similar listed impairment." Id. at 531. McCarty has proffered no medical opinion, nor has she marshaled the evidence in the record, to support her contention that her conditions meet or equal the requirements of a listed impairment.

McCarty argues in a conclusory fashion that the listings which the administrative law judge should have considered are 1.00 (Musculoskeletal System), 4.00 (Cardiovascular System), 9:00 (Endocrine System) or 14.09 (Inflammatory Arthritis). McCarty does not state how her conditions meet or equal those listings.

In considering Listing 1.00, 4.00 and 9.00, the administrative law judge stated as follows:

The record does not show that the claimant is unable to ambulate effectively due to a major [dysfunction of a] peripheral weight-bearing joint i.e., hip, knee, or ankle, as required to meet Listing 1.02A. The record does not show that the claimant is unable to perform fine and gross movements effectively due to a major [dysfunction of a] pheripheral joint in each upper extremity i.e., shoulder, elbow, or wrist-hand as required to meet Listing 1.02B.

The record does not show that the claimant has diabetes mellitus involving neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station; or acidosis occurring at least on the average of once every two months documented by appropriate blood chemical tests; or retinitis proliferans with the visual impairment evaluated under the criteria of 2.02, 2.03, or 2.04; as required to meet Listing 9.08. . . . medical examiners reported the claimant has no swollen joints, normal sensation, normal gait, clear lungs, and a regular heart rate and rhythm. Medical examiners did not report that the claimant had a motor deficit.

Tr. 16. The administrative law judge did not refer specifically to Listing 14.09 because McCarty was never diagnosed with inflammatory arthritis. Moreover, Dr. Aylward specifically found that she did not have systemic rheumatic inflammatory disease.

Tr. 220. No treating or examining physician found that McCarty's impairments met or equaled the criteria of a listed impairment. We find no error in the administrative law judge's conclusion that McCarty's impairments, individual or combination, did not meet or equal a listed impairment under the Social Security regulations.

McCarty's second argument is that the administrative law judge erred in finding that McCarty has the residual functional capacity to perform work at the sedentary level. As part of this argument McCarty contends that the administrative law judge erred by finding that her testimony regarding her pain and exertional limitation was not credible. We find these arguments devoid of merit.

The administrative law judge accepted the medical diagnoses of several of McCarty's treating physicians when he found at step two of the sequential evaluation process that McCarty suffered from several severe impairments. The administrative law judge, however, did not accept McCarty's claims regarding her exertional limitations resulting from those conditions and appropriately relied on an independent medical consultant who evaluated the medical records and concluded that McCarty could perform sedentary work. We discern no evidence in the administrative record which conflicts with the assessment of the medical consultant. The absence of any statement from McCarty's treating physicians, including Drs. Berkey and Aylward, and Physician's Assistant Fegan, to the effect that she had functional limitations which would preclude her from working creates a strong inference that she could perform work activity, including the work she did in the past as a receptionist. Furthermore, it is significant that one of McCarty's treating physicians stated in April and June of 2006 that she was employable with medication. See Bowen v, Bowen, 845 F.2d 1211, 1215 (3d Cir. 1988)(if a condition can be controlled with medication or treatment, it is not disabling).

The social security regulations specify that the opinion of a treating physician may be accorded controlling weight only when it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case. 20 C.F.R. § 404.1527(d)(2); SSR 96-2p. Likewise, an administrative law judge is not obliged to accept the testimony of a claimant if it is not supported by the medical evidence. An impairment, whether physical or mental, must be established by "medical evidence consisting of signs, symptoms, and laboratory findings," and not just by the claimant's subjective statements. 20 C.F.R. § 404.1508 (2007). In this case the administrative law judge considered the objective medical evidence and appropriately found McCarty's testimony regarding her exertional limitations not credible.

Based on the medical evidence set forth in the administrative record, including the statements of McCarty to her treating physicians, we cannot conclude that the administrative law judge erred in finding McCarty's testimony regarding her pain and exertional limitations not entirely credible.

McCarty's third and final argument is that the administrative law judge erred when he concluded that McCarty's obstructive sleep apnea, restless leg syndrome, and vertigo were non-severe impairments.

The determination of whether a claimant has any severe impairments, at step two of the sequential evaluation process, is a threshold test. 20 C.F.R. §§ 404.1520(c), 416.920(c). If a claimant has no impairment or impairments which significantly limit the claimant's physical or mental abilities to perform basic work activities, the claimant is "not disabled" and the evaluation process ends at step two. Id. If a claimant has any severe impairments, the evaluation process continues. 20 C.F.R. §§ 404.1520(d)-(g), 416.920(d)-(g). The question is not how many severe impairments exist, or whether they have all been properly named, but whether the claimant has a severe impairment or combination of severe impairments which require the administrative law judge to proceed to the next step of the sequential process.

20 C.F.R. §§ 404.1520(c) and 416.920(c).

The burden was on McCarty to establish that her sleep apnea, restless leg syndrome and vertigo were severe. While the administrative record contains medical reports supporting the diagnoses of those conditions, those impairments did not significantly limit McCarty's ability to perform basic work activities. The administrative law judge correctly found that the evidence presented to him did not "[d]ocument any serious limitation due to th[ose] conditions." Tr. 16.

We find no merit in McCarty's argument regarding the administrative law judge's assessment of the severity of McCarty's obstructive sleep apnea, restless leg syndrome and vertigo.

Our review of the administrative record reveals that the decision of the administrative law judge is supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g), affirm the decision of the Commissioner of Social Security denying McCarty social security disability insurance benefits and supplemental security income benefits.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Clerk of Court shall enter judgment in favor of the Commissioner and against Deborah K. McCarty as set forth in the following paragraph.

2. The decision of the Commissioner of Social Security denying Deborah K. McCarty social security disability insurance benefits and supplement security income benefits is affirmed.

3. The Clerk of Court shall close this case.

Malcolm Muir United States District Judge


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