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Roggenkamp v. Colvin

United States District Court, Third Circuit

November 5, 2013

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.




Becky Lynn Roggenkamp ("Plaintiff") brings this action under 42 U.S.C. § 405(g) seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383(f) ("Act"). This matter comes before the Court on cross motions for summary judgment. (Docket Nos. [9], [11]). For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence. Accordingly, Defendant's Motion for Summary Judgment, (Docket No. [11]), is GRANTED, and Plaintiff's Motion for Summary Judgment, (Docket No. [9]), is DENIED.


Plaintiff applied for DIB and SSI on December 4, 2009, alleging a disability onset of May 31, 2009 when she stopped working because of her physical and mental conditions. (R. at 161, 167).[1] She claimed that mental disabilities including bipolar disorder, attention deficit hyperactivity disorder ("ADHD"), and anxiety disorder limited her ability to work full time, and also complained of back, knee, and hip pain from multiple surgeries and two automobile accidents. (R. at 166). After both of her claims were denied on April 2, 2010, (R. at 80, 85), Plaintiff appealed her claim on May 2, 2010 and requested a hearing in front of an ALJ. (R. at 16, 194, 207). At the June 14, 2011 hearing, Plaintiff was represented by Barbara Manna, a non-attorney representative, and vocational expert Karen S. Krull testified. (R. at 33-35). In a decision dated September 21, 2011, ALJ John Kooser found although that Plaintiff had severe mental and physical impairments, she was not disabled under the Act, and thus denied Plaintiff's appeal. (R. at 16, 18). Plaintiff requested a Review of Hearing Decision before the SSA Appeals Council, (R. at 10-11), but this request was also denied. (R. at 1-4). Thus, the ALJ's decision is the final decision of the Commissioner. ( Id. ).

Plaintiff then filed a Complaint with this Court, (Docket No. [3]), followed by a Motion for Summary Judgment and Supporting Brief on July 26, 2013. (Docket Nos. [9], [10]). Three weeks later, the Commissioner timely answered with a Cross-Motion for Summary Judgment and Brief. (Docket Nos. [11], [12]). Accordingly, the matter has been fully briefed, and is ready for disposition.


A. General Background

Plaintiff was born on July 17, 1960 and was 48 years old on her alleged disability onset date. (R. at 161). At the time of her initial application, she listed her mailing address as an apartment in Ambridge, Pennsylvania. (R. at 165). However, at the ALJ hearing she testified that she was now homeless, and had been since December 2010. (R. at 41). Plaintiff said that she had been living temporarily in a dormitory at La Roche College, through a local charity, for about ten days, and would stay in this program for about one month. ( Id. ). Prior to living at La Roche, she stayed with friends. ( Id. ).

Plaintiff completed vocational training as a medical office assistant in 1985, and obtained about four years' worth of college credit as of 1992, for which she did not receive a degree. (R. at 167). Plaintiff spent 10 years working as a cashier and assistant manager for Wal-Mart, and then between September 2007 and February 2009 she worked as a clerk at a convenience store, a produce worker at a supermarket, a warehouse worker in a distribution center, and a generalized aide in setting up store displays. (R. at 42-43, 177). Plaintiff claims she stopped working in May of 2009 because of the combination of her physical and mental conditions, with the anxiety disorder symptoms being the most disabling. (R. at 44, 64, 167). She now receives public assistance. (R. at 41).

Plaintiff has never been married and has no children, although she reported she recently broke up with her life partner, with whom she used to live. (R. at 40, 209). Through her testimony and witness reports, [2] it appears that Plaintiff enjoys visiting with and sharing meals with friends, as well as playing cards or going to the movies. (R. at 59-60, 217). She is an active member and attends weekly meetings of the Society for Creative Anachronism[3] ("Society"), although she testified that she cannot participate in physical activity like she used to do. (R. at 60, 62). Depending on how much money she has, she goes to Society meetings and events as much as she can, usually about twice a week, and goes on occasional weekend trips with her friends. (R. at 62). Plaintiff has a driver's license but could not drive at the time of her hearing because of recent surgery. (R. at 41-42).

B. Medical History

At the time of her Administrative Hearing, Plaintiff claimed numerous physical and mental conditions prohibited her from working full time. (R. at 44-45, 166, 214-16). Her alleged physical disabilities consist of two herniated discs[4] and degenerative disc disease[5] of the cervical spine[6], chronic pain of her left hip due to trochanteric bursitis, [7] chronic knee pain, asthma, [8] restless leg syndrome, [9] and sleep apnea.[10] (R. at 166, 372, 438, 618). Her back, knee, and hip pain stem from a June 4, 2009 motor vehicle accident, an injury from a fall in 2007, and a subsequent spinal stenosis[11] surgery on April 11, 2011. (R. at 233-34, 250-52, 454, 466-70). She has undergone additional physical therapy for her knee pain in both knees, as she alleges that osteoarthritis[12] causes her pain as well. (R. at 47, 630-33). Plaintiff has been treated for asthma and testified she uses an inhaler to manage her symptoms. (R. at 52-53, 640, 645). Although not alleged as disabling conditions, her extensive medical record also includes evidence detailing a gallbladder removal, ovarian cysts, [13] type II diabetes, [14] hypothyroidism, [15] and hypertension.[16] (R. at 341, 343, 367-71, 384-86, 389, 435, 565, 531-45).

Regarding her mental health, Plaintiff stressed that her mental conditions are what is most debilitating. (R. at 64-65). She has been diagnosed with bipolar disorder, [17] ADHD, [18] and anxiety disorder.[19] (R. at 264-65). Plaintiff has received mental health treatment for quite some time, as she alleges she was diagnosed with bipolar disorder in 1991. (R. at 257, 311). She has been most recently treated by Dr. Apolonio Sinu, M.D. from August 2006 to November 2009, and Callie J. Cooper, LSW, from December 2009 to May 2011. (R. at 275-94, 395-403).

In her initial report to the SSA and during her testimony, Plaintiff claimed that she left work because of the stress caused by her anxiety disorder. (R. at 43, 167). Phyllis Brentzel, Psy.D., performed a mental Residual Functioning Capacity ("RFC") assessment on February 12, 2010 for the SSA. (R. at 257, 301, 309, 509). Dr. Brentzel opined that Plaintiff is limited in her "ability to understand and remember complex or detailed instructions." (R. at 311). In spite of this, she determined that Plaintiff was "able to meet the basic mental demands of competitive work on a sustained basis." ( Id. ).

This Opinion will first detail Plaintiff's physical conditions, and then turn to a discussion of her mental conditions, given the number and variety of ailments of which Plaintiff complains.

C. Physical Conditions

1. 2006 Spinal Stenosis Surgery

Plaintiff underwent spinal stenosis surgery[20] on September 29, 2006 with Dr. Derek J. Thomas, M.D. at Heritage Valley Health System in Sewickley. (R. at 218). According to the Record, [21] Plaintiff had several years of lower extremity pain and her chief complaint was "bilateral lower extremity pain, left greater than right, also with some back pain." (R. at 221, 223). Dr. Thomas reported that Plaintiff had pain in the "L5[22] distributions of both legs, left more than the right." ( Id. ). Plaintiff explained to Dr. Thomas that when "she walks at her job for any length of time, she has to sit down due to the pain until it goes away." ( Id. ). In addition, standing caused Plaintiff back pain and lower extremity pain. ( Id. ). According to the History, Plaintiff had tried multiple epidural steroid injections[23] in the past that had given her some relief, but she did not want to continue pursing that option. ( Id. ). At Plaintiff's L4-5 level[24], an x-ray and an MRI showed Grade I spondylolisthesis[25] with significant spinal stenosis, as well as significant facet arthropathy.[26] ( Id. ).

Dr. Thomas' pre- and post-operative diagnoses were spinal stenosis[27] and spondylolisthesis at the L4-L5 level. (R. at 218). Plaintiff was admitted to Heritage Valley on September 29, 2006 for surgery. ( Id. ). According to the Operative Report, he proceeded with a laminectomy[28] and fusion of L4-L5[29] using a local bone autograft[30]. ( Id. ). After placing Plaintiff under general anesthesia, Dr. Thomas and his assistant, Nancy Debranski, PA-C, "removed the posterior spinous process[31] of L4 and L5 and... cleaned that bone off, chopped it into small pieces and used that for a local bone autograft." (R. at 219). They then placed four screws into the bone, and noted that Plaintiff's "bone was of very good quality as the four screws all had excellent purchase." ( Id. ). The surgeons connected the four screws with rods, and then tested the screws, all of which were normal. ( Id. ).

After the surgery, Plaintiff spent three days recovering in inpatient care, and underwent physical therapy and occupational therapy to help her resume activities of daily living. (R. at 224). On the third day, Plaintiff "had some back soreness, [and] no leg pain." ( Id. ). A physical exam showed that her lower extremities were "intact, with 5 out of 5 strength throughout." ( Id. ). She had "slight extensor halluces longus[32] weakness on the left side compared to the right side." ( Id. ). She was prescribed pain medication and instructed to continue with physical therapy treatments upon discharge on October 2, 2006. ( Id. ).

2. 2007 Slip and Fall Accident

On February 15, 2007 Plaintiff presented to Heritage Valley Health System's emergency room because she fell down a flight of outdoor stairs while shoveling snow and ice. (R. at 233). Upon examination, Denise Ramponi, CRNP reported that Plaintiff had "mild tenderness throughout" the lumbar area[33] and a "moderate amount of soft-tissue swelling with a mild hematoma[34] on the right sacroiliac joint[35]." ( Id. ). Plaintiff demonstrated "increasing pain with any right hip movement, although most of [her] pain seem[ed] to be more posteriorly[36]." ( Id. ). Examination also showed contusions[37] at Plaintiff's lumbar area and right hip. (R. at 238). An X-ray showed no fracture or dislocation of either hip. (R. at 235). X-rays of her spine showed no acute fracture or dislocation, but did show spondylosis in Plaintiff's lower cervical spine[38] and the bilateral pedicle screws at L4-L5. (R. at 236-37). Plaintiff was prescribed twelve Vicodin[39] for her pain and was instructed to follow up with Dr. Thomas, her orthopod, in two days as "further clinical evaluation [was] indicated." (R. at 234, 236). There is no evidence of this follow-up in the Record.

3. Automobile Accident

Plaintiff was involved in a car accident on June 4, 2009, after which she began experiencing neck muscle pain on the right side and some pain down into her right arm. (R. at 251). Plaintiff was subsequently seen at Greater Pittsburgh Orthopedic Associates on June 22, 2009, at which time Dr. Derek Thomas diagnosed her with a herniated disc. ( Id. ). He ordered an MRI and prescribed Vicodin. ( Id. ). The MRI was performed on June 28, 2009, and Plaintiff followed up with Dr. Thomas on July 14, 2009 to review the results. (R. at 250). Upon review, Dr. Thomas diagnosed Plaintiff with cervical stenosis and a new herniated disc at C4-5 and C5-6. ( Id. ). Plaintiff was told the risks and benefits of possible treatment options, but she and Dr. Thomas decided to "wait and see how things go." ( Id. ). Dr. Thomas advised Plaintiff that she could return to work at her regular job and follow up in the future. ( Id. ).

4. Gallbladder Removal

Plaintiff underwent surgery to remove her gallbladder on March 1, 2010, as performed by Dr. Giselle G. Hamad, M.D., of UPMC at Magee-Womens Hospital. (R. at 341, 348). She presented to Dr. Hamad in February with abdominal pain intermittently over the past 20 years, made worse by fatty or spicy foods. (R. at 346). Dr. Hamad diagnosed Plaintiff with cholelithiasis.[40] After the exam, Plaintiff agreed to undergo a laparoscopic cholecystectomy.[41] (R. at 347). According to a letter from Dr. Hamad to Dr. Anand, Plaintiff went to the emergency room two days after surgery, complaining of abdominal pain. (R. at 341). She missed her follow-up appointment with Dr. Hamad, but three weeks later was seen again, at which point she was advised that she could return to her normal activities, and her incisions were healing. (R. at 343).

5. Type II Diabetes and Hypothyroidism

Plaintiff presented to Dr. Mona Anand, M.D., on January 12, 2011, after she obtained health insurance. (R. at 372). She complained of numerous medical conditions, including asthma, thyroid dysfunction, and hypertension, for none of which she was taking medication, and claimed she was told three years prior that she was "prediabetic." ( Id. ). She also reported symptoms from ADHD, bipolar disorder, and anxiety, for all of which she was being treated. ( Id. ). Plaintiff reported "her mental health is not the best at this time, " but she had no suicidal thoughts or intents. ( Id. ). Upon physical examination, Dr. Anand found Plaintiff's blood pressure was 132/90, and her chest was clear but "a few wheezes [were] heard." (R. at 373). Plaintiff complained of some chest pressure and shortness of breath on exertion. ( Id. ). Dr. Anand ordered numerous tests, mainly to check Plaintiff for possible coronary artery disease and for overall health maintenance. ( Id. ). She also assessed Plaintiff as suffering from hypertension with "borderline elevated pressures, " and for which she prescribed a low-salt diet. (R. at 374).

Upon follow-up to review test results, Plaintiff's blood work showed evidence of new-onset Type II Diabetes. (R. at 367). Dr. Anand reported that they "discussed the diagnosis of diabetes at length, " and she explained the lifestyle changes that Plaintiff would have to make. ( Id. ). She prescribed Glucophage[42] 1000 mg twice a day, consultation with a dietician, and a glucometer for checking her blood sugars regularly. (R. at 367-68). In addition to the Type II Diabetes diagnosis, there was also evidence of hypothyroidism.[43] For this, Dr. Anand prescribed Plaintiff with Synthroid[44] 25 mcg daily. (R. at 368). At the ALJ hearing, Plaintiff testified that "everything seems to be [in] line right now, " and that her "sugars are stable." (R. at 48).

6. Asthma

Dr. Anand reported on January 12, 2010 that Plaintiff had a history of asthma, but was not on any inhalers and was very stable. (R. at 372). Plaintiff complained of shortness of breath on exertion, and her chest examination was clear with a few wheezes heard. ( Id. ). Dr. Anand prescribed an inhaler[45] to take two puffs, as needed. (R. at 375). In March of 2010, during a Bureau of Disability Determination exam, Dr. Daniel G. Christo of Sewickley Valley Medical Group reviewed Plaintiff's symptoms and reported that she uses an inhaler to treat asthma. (R. at 329-30). Upon examination, he noted that Plaintiff's lungs were clear with no rales or wheezing, but found that Plaintiff had asthma with an unremarkable pulmonary exam, concurring with Dr. Anand's assessment. (R. at 329, 331, 333).

7. Sleep Apnea

Dr. Anand also assessed Plaintiff with sleep apnea[46] and referred her to a sleep clinic for a repeat sleep study on January 12, 2010. (R. at 374). Plaintiff complained that she had a history of sleep apnea but was currently not using a mask, although she experiences excessive snoring, and feels very tired and fatigued. (R. at 388). According to a November 2009 psychiatric progress report, Plaintiff reported getting seven to eight hours sleep; however, she later testified at the June 14, 2011 ALJ hearing that she usually sleeps about four to six hours, and uses a sleep apnea machine. (R. at 61). Dr. Christo examined Plaintiff in March of 2010, and noted that she had a history of sleep apnea, but did not bring that up as an issue at her examination. (R. at 332). In a December 2010 neuropsychological evaluation, Plaintiff reported she either "sleeps too much or not at all." (R. at 514). Dr. Glen Getz, Ph.D., a clinical neuropsychologist at Allegheny General Hospital, surmised that it was likely that a combination of her psychiatric difficulties and sleep-related problems was contributing to her subjective cognitive problems. ( Id. ). He recommended she consistently utilize her C-Pap machine[47] and possibly undergo an additional sleep study. ( Id. ).

8. Consultative Examination with Dr. Daniel Christo, D.O.

As mentioned above, on March 17, 2010 Plaintiff underwent an examination by Dr. Christo, the transcript of which was sent to the Bureau of Disability Determination. (R. at 329). Dr. Christo reported to the Bureau that Plaintiff was very vague in her medical history and told him, "my body doesn't work anymore." ( Id. ). Dr. Christo claimed that Plaintiff seemed "alert, oriented with no overt signs of thought disorder, mania, or depression." (R. at 331). Plaintiff stated to Dr. Christo that she has a poor attention span, and often has problems following and remembering instructions. (R. at 329). Plaintiff could add simple and complex numbers without any difficulty, and followed directions well. (R. at 331). Dr. Christo assessed Plaintiff's mental health with a "history of bipolar disorder, possibly attention deficit disorder with no overt signs of thought disorder, mania, or depression, " and intact gross mental skills.[48] (R. at 332).

Upon physical examination, Plaintiff's neck "actually show[ed] good range of motion, " and was nontender with no specific spasms. (R. at 331). Dr. Christo tested her range of motion, and found her forward and backward flexion, rotation, and side bending were "unremarkable, " and that Plaintiff could go from sitting to supine, and supine to sitting without any difficulties. ( Id. ). Her upper extremities tests showed she had full range of motion at the shoulders, elbows and wrists, with 100 percent grip strength and a normal gait. (R. at 332). As to her lower extremities, she showed a negative straight leg raise both sitting and lying with a full range of motion in her hips, knees, and ankles. ( Id. ). Dr. Christo reported Plaintiff "gave a poor attempt at standing forward flexion, " that she "basically did not even try." ( Id. ). Overall, Dr. Christo assessed Plaintiff with lumbar disc disease and cervical disc disease with no significant clinical objective findings. ( Id. ).

Dr. Christo recommended that Plaintiff be limited to only occasional bending, kneeling, stooping, crouching, balancing, and climbing. (R. at 337). He assessed her ability to work full-time in a regular work setting as limited to frequently lifting or carrying up to 25 pounds (out of a possible 100 pounds.). (R. at 338). Because of her asthma, he also recommended environmental restrictions from areas of poor ventilation, wetness, dust, fumes, odors, and gases. (R. at 337). He did not recommend any restrictions with respect to standing, walking, sitting, pushing, pulling, reaching, handling, hearing, or speaking. (R. at 337-38).

9. Left Hip Bursitis

In January 2011, Plaintiff presented again to Dr. Mona Anand, M.D. with left hip pain that sometimes shoots down into her legs. (R. at 440). Dr. Anand ordered an MRI and reviewed the results with Plaintiff a few weeks later. (R. at 438). The MRI was "essentially unremarkable, " but did show evidence of trochanteric bursitis, [49] for which Dr. Anand performed a kenalog injection.[50] ( Id. ). As Plaintiff's left hip was "extremely painful for her, " Dr. Anand assessed her with osteoarthritis[51] and prescribed Mobic 7.[52] (R. at 438-39).

10. 2011 Spinal Stenosis Surgery

At the same appointment for her left hip pain, Plaintiff also complained of severe lower back pain. (R. at 440). In addition to the MRI of her left hip, Dr. Anand ordered an additional MRI of Plaintiff's lumbar spine and cervical spine. She then reviewed the results with Plaintiff on February 7, 2011. (R. at 438). The MRI of the lumbar spine showed "significant degenerative changes, " and she recommended Plaintiff complete physical therapy in addition to a follow-up visit with an orthopedic specialist. ( Id. ).

As such, Plaintiff was referred to Dr. Joon Y. Lee, M.D. UPMC Presbyterian, who recommended surgery due to her symptoms "progressively getting worse" in the last four years, specifically a posterior laminectomy[53] for spinal stenosis at the C3-4, C4-5, C5-6, and C6-7 levels. (R. at 435, 462, 466-67). At her February 24, 2011 pre-operative examination, Dr. Lee noted and discussed with Plaintiff that "she will lose most likely about 30% of her motion" in addition to other possible risks associated with surgery. (R. at 467). He stated "the goal of the surgery is to halt the progression of the symptoms, not necessarily to reverse the symptoms." ( Id. ). After this exam and before the surgery, Plaintiff presented to Dr. Anand for an unrelated physical condition and further discussed the impending surgery. (R. at 435-36). Medications - Kenalog Inj, WEBMD, available at≸.aspx? drugid=9275&drugname=Kenalog≸ (last visited Oct. 11, 2013). Assisted by Amanda Britton, PA-C, Dr. Lee performed the surgery two weeks later on April 11, 2011 at UPMC Presbyterian Shadyside. (R. at 468). Both the pre- and post-operative diagnoses were cervical spinal stenosis with myeloradiculopathy.[54] ( Id. ).

The Operative Report shows an incision was made and Plaintiff was exposed from C3 down through C7. (R. at 469). A bone graft was taken from her left iliac crest[55], and surgeons then placed screws on her bilateral C3 through C7 levels. ( Id. ). Rods and cap screws were placed near the screws, completing the instrumentation insertion portion of the surgery. ( Id. ). The bone graft that was taken from the left iliac crest was then packed onto the lateral gutters to span from C3 through C7 to ensure that there was complete coverage of the decorticated material as well as the decorticated facets. ( Id. ). Next, the doctors performed a posterior laminectomy from C3 through C7 and resected the interspinous ligament between C2-C3 and C6-C7. ( Id. ). After closing, doctors took an x-ray of Plaintiff to ensure that the instrumentation was satisfactory. ( Id. ). According to the report, there were no complications throughout the entire case. (R. at 470).

The next three days, Plaintiff remained in UMPC's care, where she was tended to by medical consultants and participated in physical therapy. (R. at 471, 473). She was discharged on April 14, 2011 with instructions to wear her neck brace at all times and follow up in three weeks. ( Id. ). Plaintiff was transferred to HCR Manor Care, a skilled nursing facility, for two additional days of recovery. (R. at 473, 577). At HCR, her physical examination showed Plaintiff had abnormal weakness, pain, and limited range of motion in her extremities. (R. at 475). She was given a neck brace and discharged on April 16, 2011. (R. at 476-77).

During her May 5, 2011 follow-up appointment with Dr. Lee, Plaintiff stated that "she is doing well today, " and her upper extremity numbness, tingling, and weakness had improved "almost immediately after surgery." (R. at 465). She occasionally took Oxycodone[56] and Neurontin[57] for her pain, and reported no weakness or radicular symptoms. ( Id. ). Dr. Lee restricted Plaintiff to lifting no more than 10 to 15 pounds, and no overhead lifting more than 10 to 15 pounds, and refilled her Neurontin and Oxycodone prescriptions.[58] ( Id. ).

D. Mental Health Conditions

When Plaintiff applied for DIB and SSI benefits, in addition to her physical limitations, she claimed mental conditions including learning disabilities, bipolar disorder, ADHD, and anxiety disorder limited her ability to work. (R. at 166). She has undergone exams and counseling by numerous doctors as treatment for these conditions. (R. at 171). When being treated for her physical conditions, Dr. Anand assessed Plaintiff with bipolar and anxiety disorder with ADHD, stating she will continue psychiatric treatment and noted no suicidal ideation. (R. at 381, 388, 389). Witness statements by friend and roommate, Shaun Crandall, decribe "memory issues which hinder training and learning new things." (R. at 208). Plaintiff's friend, former partner and roommate, Shayla Maas, also stated that she "has frequent memory problems, especially short term, [and] she often loses track of a conversation mid-sentence, or forgets instructions she was given in the last [five to fifteen] minutes." (R. at 209). In her Disability Report Appeal, Plaintiff stated that she becomes overwhelmed by public and social situations, and that she gets "depressed and sleep[s] for several days at a time." (R. at 210).

1. Attention Deficit Hyperactivity Disorder ("ADHD") and Short Term Memory[59]

On July 23, 2009, Plaintiff was referred to Dr. Dominic J. DeLuigi, Ph.D. for a Comprehensive Psychological Vocational Assessment to determine her potential for training and optimal occupational objective. (R. at 257). At the assessment, Plaintiff told Dr. DeLuigi that she was an above average student in high school, and took a variety of courses at various schools after graduating. (R. at 261). Dr. DeLuigi noted Plaintiff's appearance and comprehension of simple commands were appropriate, and her stream of speech was logical and coherent. ( Id. ). Plaintiff denied any current or previous homicidal or suicidal ideations. (R. at 262).

After running some cognitive tests, Dr. DeLuigi found that Plaintiff's short-term memory was impaired, as well as her attention and concentration abilities. (R. at 261). Her Wechsler Adult Intelligence Scale[60] showed Plaintiff had an IQ of 90, which is in the average range. (R. at 262). An analysis of the composite scores showed a relative weakness regarding short-term working memory. ( Id. ). Her results also showed weaknesses for visual analysis and synthesis, verbal abstract reasoning, and quantitative thinking. ( Id. ). Her aptitude profile was consistent in that Plaintiff has average abilities for verbal and spatial aptitudes, and below average numerical and perceptual aptitudes and manual dexterity. ( Id. ). According to Dr. DeLuigi, these tests supported "average training aptitude." ( Id. ). Her numerical aptitude showed relative weakness, and Dr. DeLuigi suggested Plaintiff's poor quantitative thinking is related to "attentional dysfunctioning rather than a specific learning disability." ( Id. ). Plaintiff showed "poor sustained attention and response inhibition (impulsivity), " relative to her age and gender peers. ( Id. ).

Dr. DeLuigi opined that Plaintiff's test results show "evidence of executive dysfunctions, particularly poor response inhibition; dysregulation of attention, behavior, and emotions; and attentional dysfunctioning" consistent with ADHD. (R. at 264). He concluded that she suffers from a "reduced capacity to retain and learn at an acceptable rate through traditional means, and impaired life planning and self-direction." ( Id. ). He also noted evidence of "diminished physical capacity." ( Id. ). As such, Dr. DeLuigi diagnosed Plaintiff with ADHD and recommended various accommodations and life management strategies to manage her limitations. (R. at 264-70).

Plaintiff began therapy with Callie J. Cooper, LSW at the Charte Center, Inc. in Pittsburgh to treat her ADHD, as well as her other mental conditions in December 2009. (R. at 302, 409). Ms. Cooper provided a treatment summary dated February 8, 2010 detailing their previous six therapy sessions. ( Id. ). She reported that Plaintiff's disorders interfere with her ability to focus when given instructions, and she displays short term memory problems from session to session. ( Id. ). She noted that Plaintiff missed one of their sessions because she forgot what day of the week it was. ( Id. ). Ms. Cooper observed that Plaintiff "is bright and has a great deal of knowledge, " but has difficulty demonstrating this knowledge in situations where she becomes anxious and unfocused. ( Id. ). Yet, Plaintiff was "making attempts to focus on her treatment and to improve her situation." ( Id. ).

In addition to the treatment summary, Ms. Cooper completed a Medical Source Statement of Ability to Do Work-Related Activities for the Bureau of Disability Determination in February of 2010. (R. at 304, 307). Regarding Plaintiff's ADHD, Ms. Cooper assessed Plaintiff with extreme limitations when understanding, remembering, and carrying out detailed instructions. (R. at 305). Plaintiff had marked limitations regarding her ability to understand, remember, and carry out short, simple instructions, as well as making judgments or simple work-related decisions. ( Id. ). Ms. Cooper attributed these limitations to Plaintiff's anxiety resulting from difficulty following directions, in addition to her ADHD. ( Id. ). She also rated Plaintiff as having extreme restrictions responding appropriately to work pressures and changes in a usual work setting, and marked restrictions interacting appropriately with the public, supervisors, or co-workers due to her ADHD. ( Id. ).

2. Anxiety and Bipolar Disorders

Plaintiff has been diagnosed with Anxiety and Bipolar Disorders for a number of years, and claims this disorder limits her ability to work. (R. at 166, 171, 262, 302). Drs. Sinu, DeLuigi, and Anand have all confirmed her diagnoses. (R. at 258, 276, 382). Plaintiff testified that her anxiety symptoms were the most debilitating out of all of her physical and mental conditions. (R. at 64). Shayla Maas's witness statement explained that Plaintiff displays "aggressive, irrational, angry outbursts." (R. at 209). Plaintiff testified at her hearing that her treatments at the Staunton Clinic and Charte Center help her to manage her symptoms. (R. at 55). As of that date, Plaintiff was taking Xanax[61] twice a day regularly and one additional instance, if needed. (R. at 63). When the ALJ asked if she experienced any depressed or manic modes, Plaintiff answered in the affirmative and claimed that she has "ups and downs, " but that her medication was helping her. (R. at 56-57). She explained that she "can get so manic that I cannot actually sort out and get things done, " and the disorder causes her to feel depressed, which further limits her ability to complete tasks. (R. at 57).

During her evaluation with Dr. DeLuigi, Plaintiff told him that she was diagnosed with bipolar disorder in 1991, and underwent a psychiatric hospitalization once. ( Id. ). He wrote that she has received pharmacological treatment on an ongoing basis, but was having difficulty purchasing her medication due to lack of funds. ( Id. ). Dr. DeLuigi recommended she continue to receive pharmacological treatment and encouraged her to apply for SSI to finance these medications, and to continue psychotherapy. (R. at 265). He noted her predominant mood during the evaluation was euthymic.[62] (R. at 262).

Her treatment at the Staunton Clinic with Dr. Sinu from August 2006 to November 2009 reports mostly normal moods and no thoughts of suicide ideation. (R. at 276-83). Dr. Sinu saw Plaintiff about once a month over three years, and consistently noted that she appeared well groomed. ( Id. ). Notably, throughout various appointments Plaintiff discussed with Dr. Sinu that she was at the point of losing her job at Wal-Mart, she suffered depression and anxiety symptoms, but was generally doing well on her medication. (R. at 277, 279, 281). Her last appointments in July and November of 2009 report a stable and euthymic mood. (R. at 276-77).

In November 2009, Dr. Sinu completed an Employability Examination for the Department of Public Welfare. (R. at 300-01). On this form, Dr. Sinu noted that Plaintiff's primary diagnosis is Bipolar Disorder, and that he assessed Plaintiff to be temporarily disabled, with the disability precluding gainful employment beginning November 16, 2009, and which he expected would last until August 30, 2010. (R. at 301).

3. Neurological Evaluations

Dr. Anand referred Plaintiff to Dr. Stephen Shymansky, M.D. for a neurological evaluation in May of 2010 at Greater Pittsburgh Neurology Consultants. (R. at 362). She presented to him with numerous neurologic symptoms, her greatest concern being a decline in short-term memory. (R. at 363). Plaintiff described "difficulty at times with remembering directions, " and often became confused or lost while driving to familiar places. (R. at 362). Compared to her short-term memory, Plaintiff stated her "remote memory seems to be much more intact, " and that she understood written language better than verbal. ( Id. ). Dr. Shymansky detailed Plaintiff's neck pain subsequent to the June 2009 car accident, ongoing treatment for her bipolar disorder and anxiety, and additional conditions including restless leg syndrome, diabetes, sleep apnea, and hypertension. (R. at 362-63). He also noted that Plaintiff's "medical history is remarkable for nine or ten concussions over the years." (R. at 362). His review of her symptoms listed "intermittent weight loss, lack of energy, difficulty sleeping, blurred vision, abdominal pain, frequent nausea, diarrhea, cramping, muscle pain, weakness, [and] joint pain, " as well as abnormal thyroid studies. (R. at 363).

Dr. Shymansky opined that Plaintiff appeared alert and pleasant, with clear and articulate speech. ( Id. ). She had normal gait and 5/5 strength in her arms and legs, but had deep tendon reflexes absent at the ankles and knees. ( Id ). Other than a decreased sensation to pinprick at the high shin level in both lower and upper extremities, Plaintiff's sensation was completely normal. ( Id. ). Plaintiff scored 28 out of 30 on a Folstein Mini-Mental Status Examination.[63] ( Id. ). Dr. Shymansky determined that Plaintiff's short-term memory problems may be caused by multiple factors relating to her thyroid disease, [64] the multiple medications she currently takes, as well as bipolar disorder, sleep apnea, and her past concussions. ( Id. ). To examine this further, Dr. Shymansky ordered EEG testing and an MRI scan of Plaintiff's brain. ( Id. ). Regarding her lower extremity numbness, he assessed that Plaintiff "has a neuropathy that is likely from diabetes." ( Id. ). Her right upper extremity was to be "EMG'd" to look for cervical radicular disease related to the June 2009 car accident. ( Id. ). Finally, Dr. Shymansky stated that "because of episodes of spacing out, [he was] concerned about the possibility of complex partial seizures, " and ordered additional testing to determine if that was causing Plaintiff's memory problems. ( Id. ).

A month later on July 15, 2010, Michael Tometsko, PA-C, also of Greater Pittsburgh Neurology Consultants, reviewed Plaintiff's results. ( 361). The MRI scan, EMG, and EEG all came back normal. ( Id. ). Mr. Tometsko reported that Plaintiff displayed no tremor, cogwheeling, or rigidity, and her face was equal, tongue was midline, and extraocular movements were intact. ( Id. ). Plaintiff had "good short-term and long-term recall in discussing her medical history." ( Id. ). Mr. Tometsko noted her thyroid was being "adequately treated, " and that her problems of zoning and memory loss could be side effects from her prescribed medications.[65] ( Id. ). However, he wanted to "check a 24-hour EEG for completeness to rule out complex partial seizures, " but suspected this would return normal.[66] ( Id. ).

Plaintiff underwent a second neurological examination in December 2010 after Dr. Anand and Ms. Cooper recommended further evaluation of her short-term memory loss and other psychological problems. (R. at 382, 509). On December 16, 2010, Plaintiff underwent a neuropsychological evaluation by Dr. Getz. (R. at 509, 514). There, Plaintiff reported difficulties in following directions, learning, making judgments, and short-term memory problems. ( Id. ). She claimed she frequently gets lost while driving, and has occasionally left the oven on. ( Id. ). Regarding her emotional functioning, Plaintiff described experiencing multiple panic attacks, and mood related difficulties such as periods of feeling hopeless and worthless. ( Id. ). She allegedly avoids public settings because of her social anxiety. (R. at 509-10).

Dr. Getz ran numerous tests, which results he believed to be "an accurate reflection of her current level of cognitive functioning." (R. at 511). Considering these test results, Dr. Getz found they "indicate intact performance on objective measures of cognitive functioning in all areas with the exception of mild attention difficulties, slowed cognitive efficiency and slowed fine motor skills." (R. at 513). He attributed these difficulties to her history of psychiatric problems, particularly anxiety and bipolar disorders. ( Id. ). Regarding Plaintiff's ADHD, however he found that she did "not demonstrate symptoms consistent" with the disorder or any underlying cognitive problems. ( Id. ).

Of note, Dr. Getz observed that it was "possible that her current medication regimen, particularly the Xanax, could be contributing to the slowed cognitive efficiency, " but nevertheless found that consistent treatment will be important given her history of anxiety. (R. at 513-14). He stated that Plaintiff's "slowed cognitive efficiency and fine motor difficulties as well as inconsistent concentration is likely contributing to her inconsistent abilities in daily living." (R. at 514). Dr. Getz emphasized that Plaintiff "has cognitive abilities to perform these skills well and that there is no clear underlying organic etiology to her difficulties, " except for her anxiety and mood disorders. ( Id. ). On the other hand, Plaintiff "is at high risk for sustaining mild cognitive impairment in the future, " and should be reevaluated in at least two to three years if she notices any decline of cognitive functioning. ( Id. ).

E. Functional Capacity

1. Physical Residual Functional Capacity

Plaintiff underwent a physical residual function capacity ("RFC") assessment by state evaluator Kimberly Stavish on March 31, 2010. (R. at 72-79). Dr. Stavish diagnosed Plaintiff with cervical disc herniation, lumbar degenerative disc, asthma, and bipolar disorder. (R. at 72). The following exertional limitations were established: Plaintiff could occasionally lift and/or carry twenty pounds and frequently carry ten pounds; was limited to standing and/or walking for six hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; and was unlimited in her ability to push and/or pull, aside from his previously noted restrictions in lifting and/or carrying. (R. at 73). In Dr. Stavish's opinion, Plaintiff would be occasionally limited in the following postural movements: using ramps, climbing stairs, ladders, rope, or scaffolds; balancing; stooping; crawling; crouching; and kneeling. (R. at 74). However, Plaintiff had no manipulative, visual, or communicative limitations, and her environmental limitations were unaffected, except that Plaintiff was cautioned to avoid concentrated exposure to wetness, humidity, fumes, odors, dusts, gases, and poor ventilation. (R. at 74-75). Dr. Stavish also found Plaintiff's statements to be partially credible based on the evidence in the record. ( Id. ). He then found the RFC to be consistent with the report of Daniel Christo, D.O.[67] and other evidence in Plaintiff's file. (R. at 78).

2. Mental Residual Functional Capacity

On February 12, 2010, Phyllis Brentzel, Psy.D. conducted a Mental RFC, including both a Functional Capacity Assessment and a Psychiatric Review Technique. (R. at 309-11). The mental RFC report shows that Plaintiff is moderately limited in her abilities to understand and remember detailed instructions; to carry out very short and simple instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to make simple work-related decisions; to complete a normal workday and workweek and perform at a consistent pace; to respond appropriately to changes in the work setting; to be aware of normal hazards and take appropriate precautions; and to set realistic goals or make plans independently. (R. at 309-10). She is markedly limited in her ability to carry out detailed instructions. ( Id. ). Plaintiff is not significantly limited in her abilities to remember locations and work-like procedures; to understand and remember very short and simple instructions; to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; to ask simple questions or request assistance; to accept instructions and respond appropriately to supervisors; to relate to coworkers; to maintain socially appropriate behavior and appearance; or to travel in unfamiliar places and use public transportation. ( Id. ).

Dr. Brentzel found Plaintiff's statements to be partially credible, even upon review of Dr. Sinu's report and consideration of his opinion. (R. at 311). Overall, Dr. Brentzel determined that Plaintiff has limited "ability to understand and remember complex or detailed instructions, " but that "she would be expected to understand and remember simple one and two step instructions." ( Id. ). Ultimately, Dr. Brentzel concluded that Plaintiff "is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment." ( Id. ).

F. Administrative Hearing

A hearing regarding Plaintiff's claims was held before Administrative Law Judge John Kooser on June 14, 2011 at the Office of Disability Adjudication and Review in Seven Fields, Pennsylvania. (R. at 35). Plaintiff appeared to testify, accompanied by her non-attorney representative, Barbara Manna. ( Id. ). Karen Krull, [68] an impartial Vocational Expert ("VE"), also appeared and testified. (R. at 35, 65-68).

Plaintiff testified that she was fifty (50) years old, having a birth date of July 17, 1960. (R. at 39). She was five feet, five inches tall, and weighed approximately one hundred and eighty (180) pounds, although her weight regularly fluctuated within a twenty (20) pound range because of stress eating. (R. at 40). Plaintiff was single and did not have children. ( Id. ). She stated that she has a driver's license, but had not driven in several months because she was not yet comfortable driving since her neck surgery. (R. at 41-42). Prior to the surgery, Plaintiff drove regularly. (R. at 42).

Regarding employment, Plaintiff described having difficulty with previous work in a supermarket, because it was too physically demanding. (R. at 44). She reported that the work was also mentally stressful, and that together with her psychiatrist, she decided that she needed to take time off work. ( Id. ). When the ALJ asked whether Plaintiff is currently looking for work, Plaintiff testified that she "would love to" but does not think she can work at this time. ( Id. ).

With respect to her physical impairments, Plaintiff testified that her recent neck fusion limited her ability to rotate her neck, and particularly her ability to look up or down. (R. at 45). Plaintiff also testified that her left side of her body was physically weaker than her right. (R. at 46). She explained that her neck surgery had been performed recently, and that the doctors advised it was too early to know the longer term prognosis. ( Id. ). Yet, Plaintiff said that she may have long-term problems rotating her neck. ( Id. ). She also said that she was waiting to start physical therapy. ( Id. ). The surgery had alleviated some of the pain, numbness, and tingling that Plaintiff had been experiencing. (R. at 46-47). She similarly testified that her previous surgery- on her back-had alleviated her back pain, making it manageable. (R. at 47). Plaintiff described having ongoing pain related to arthritis in her hands, feet, and knees. ( Id. ). She said that she takes medicine only for neck pain, and sometimes gets cortisone injections, which relieve the pain for six months. ( Id. ). Plaintiff testified that her diabetes was stable. (R. at 48).

Plaintiff testified that she uses a nebulizer[69] in the summer time, and always carries an inhaler and an Epi-pen.[70] (R. at 52-53). The ALJ determined that Plaintiff is unable to work in proximity to temperature extremes, excessive levels of wetness or humidity and concentrated exposure to airborne irritants such as fumes, odors, dusts, and gases, and she must be in a well-ventilated environment; the ALJ concluded that the medical records do not support a more restrictive environment. (R. at 22).

When the ALJ inquired into how her physical impairments would affect her ability to work, Plaintiff averred that she would have problems sitting for long periods of time because she gets leg swelling and pain. ( Id. ). Plaintiff agreed that she would like to work in a situation where she would be able to stand up when needed. ( Id. ). Plaintiff said that arthritis in her hands sometimes limits her ability to grip, and that her dexterity has worsened. (R. at 49). She had stopped taking arthritis medication because of her neck surgery, but would resume the medicine soon. ( Id. ). Plaintiff said that this medication helps with her arthritis. ( Id. ). She also said that doctors have told her not to lift more than five pounds because of her recent surgery, but that before the surgery she could lift up to thirty-five pounds. (R. at 51).

With respect to Plaintiff's mental impairments, Plaintiff testified that she left her longest-held job because of stress. (R. at 43). She described her troubles with short-term memory, and that she had been learning methods to cope with same. (R. at 53). However, her memory problems affected daily functioning, in that she forgets to do tasks and sometimes loses things. (R. at 54). When the ALJ asked about her anxiety problems, Plaintiff averred that her anxiety remains a problem, although that she is generally stable on medication, unless stressful situations arise. (R. at 55).Plaintiff claimed that she was undergoing therapy at the Charte Center about once a week, and was also being seen by a psychiatrist at the Staunton Clinic. (R. at 51, 52). She believed her treatment is to help her manage her bipolar disorder and anxiety disorder, as well as "dealing with some childhood issues." (R. at 55). As to her anxiety, Plaintiff's medications generally help her unless something unusual happens. ( Id. ). She clarified that her anxiety is heightened when "stress situations" occur that "just pop up, " such as being in the car with a driver who suddenly swerves. ( Id. ). Plaintiff told the ALJ that her anxiety would affect her similarly during work activities. (R. at 55, 56). Her short term memory problems affect her daily functioning because she often forgets where she puts things, and won't remember certain days if "nothing spectacular happened, " and she needs to write down her appointments. (R. at 54). Plaintiff's bipolar disorder causes her "ups and downs, " but has been better than what it used to be. (R. at 56). However, she testified that her disorders affect her ability to work because they create inconsistencies and cause her to not finish certain tasks. (R. at 57).

In relation to how her mental health might impact her ability to work, Plaintiff testified that her psychiatrist and therapist have told her they do not think she is ready to work. (R. at 56). Specifically, she testified that she believes her bipolar disorder could interfere with working because "[i]t creates an inconsistency in [her] ability to do things." (R. at 57). She explained that when she enters a manic phase, she has difficulty finishing entire tasks, rather than stopping half-way through. ( Id. ). When she enters a depressive phase, she has trouble focusing on things other than her depression. ( Id. ). However, Plaintiff testified that her medication "helps a lot" with controlling the symptoms of her bipolar disorder. ( Id. ). Plaintiff testified that her anxiety symptoms may interfere with her working because they cause increasing self-doubt, affecting her ability to perform her job. (R. at 58).

As to her outside activities, interests, and hobbies, Plaintiff testified that she is able to perform basic chores like cleaning the kitchen, and that she bathes regularly. (R. at 59). She was currently getting most of her meals through her housing program, but also visited friends for dinner about twice each week. ( Id. ). Plaintiff described her living situation and social activities.[71] She testified that her quality of life has declined, largely because of her anxiety symptoms. (R. at 64). She opined that anxiety is the biggest barrier she sees to returning to work. ( Id. ).

Next, the ALJ asked the VE to review Plaintiff's work history. (R. at 66). The VE testified that-

• Plaintiff's prior job as a cashier is classified as light and semi-skilled. ( Id. ).
• Her job as an assistant manager for a store would be light and skilled. ( Id. ).
• Her job as a convenience store clerk was light and semi-skilled. ( Id. ).
• Her job as a produce worker in a supermarket was medium and unskilled. ( Id. ).
• Her job as a warehouse worker was light and unskilled. ( Id. ).
• Her job as a display worker was medium and skilled. ( Id. ).

Subsequently, the ALJ posed a number of hypothetical questions to the VE. First, the ALJ asked the VE to assume an individual of Plaintiff's age, education, same work history; who is limited to light work and needs to alternate between sitting and standing as needed; whose job requires no more than occasional pushing, pulling, climbing, balancing, stooping, kneeling, crouching, or crawling; whose job environment does not involve work near extreme temperatures, excessive wetness or humidity, concentrated exposure to airborne irritants; who cannot work near occupational hazards or in jobs involving contact with the public; who needs a very low stress job that requires no complex decision making, no high volume productivity requirements, and very infrequent unexpected changes in the workplace; who is limited to jobs involving no more than occasional superficial interaction with co-workers or supervisors; and whose work requires no more than simple, routine, repetitive tasks. (R. at 66-67). The VE testified that this individual would not be able to perform any of Plaintiff's past jobs because of the sitting and standing limitation. (R. at 67). On the other hand, the VE testified that this individual would be able to perform other jobs, such as a packer, at a light exertional level, and that there are approximately one hundred thousand jobs that would fit that description. ( Id. ). Additionally, the individual could work as a sorter, at the light level, and that there are approximately forty thousand jobs nationally. (R. at 68). Finally, the individual could work as a mail clerk, at the light level, and there are approximately sixty-five thousand such jobs nationally. ( Id. ).

The ALJ next asked about this same hypothetical individual, except with the added limitation that the individual could not deal with work-related stress, and would have repeated episodes of going off task or missing attendance. ( Id. ). The VE responded that there would not be any jobs that this individual could perform. ( Id. ).

As a third variation on the above hypothetical person, the ALJ added a limitation that the person could not maintain concentration, and would be off-task fifteen to twenty percent of his or her time at work. ( Id. ).The VE testified that there would not be any jobs that this individual could perform. ( Id. ).


To be eligible for disability benefits under the Act, a claimant must demonstrate to the Commissioner that she cannot engage in substantial gainful activity because of a medically determinable physical or mental impairment, which has lasted or can be expected to last for a continuous period of at least twelve months, or which can be expected to result in death. 42 U.S.C. § 423(d)(1)(A); Cunningham v. Comm'r Soc. Sec., 507 F.Appx. 111, 114 (3d Cir. 2012). To determine whether a claimant has met the requirements for disability, the Commissioner must utilize a five-step sequential analysis in reviewing the claim. 20 C.F.R. §§ 404.1520, 416.920.

The Commissioner must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., Pt. 404, Subpt. P, App'x. 1; (4) whether the claimant's impairments prevent her from performing past relevant work; and (5) if the claimant is incapable of performing her past relevant work, whether she can perform any other work which exists in the national economy. 20 C.F.R. § 404.1520(a) (4); see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (applying the five steps). If the claimant is determined to be unable to resume past relevant work, the burden shifts to the Commissioner at Step Five to prove that, given the claimant's mental or physical limitations, age, education, and work experience, she is able to perform substantial gainful activity in jobs available in the national economy. Breslin v. Comm'r Soc. Sec., 509 F.Appx. 149, 152 (3d Cir. 2013).

Judicial review of the Commissioner's final decisions on disability claims is provided by statute and is plenary as to all legal issues. 42 U.S.C. §§ 405(g), 1383(c)(3); Hagans v. Comm'r Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2013) (citing Schaudeck v. Comm'r Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999)). Section 405(g) permits a district court to review the transcripts and records upon which a determination of the Commissioner is based; the court will review the record as a whole. 5 U.S.C. § 706. The district court must then determine whether substantial evidence existed in the record to support the Commissioner's findings of fact. Hagans, 694 F.3d at 292. Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate" to support a conclusion. Perez v. Comm'r Soc. Sec., 521 F.Appx. 51, 53-54 (3d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the Commissioner's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390.

When considering a case, a district court cannot conduct a de novo review, nor re-weigh the evidence of record; the court can only judge the propriety of the decision in reference to the grounds invoked by the Commissioner when the decision was rendered.[72] Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97 (1947). The court will not affirm a determination by substituting what it considers to be a proper basis. Chenery, 332 U.S. at 196-97. Further, "even where this court acting de novo might have reached a different conclusion... so long as the agency's factfinding is supported by substantial evidence, reviewing courts lack power to reverse either those findings or the reasonable regulatory interpretations that an agency manifests in the course of making such findings." Monsour Medical Center v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).


In his September 21, 2011 decision, the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Act from the alleged disability onset date of May 31, 2009 through the date of his decision. (R. at 28). The ALJ found that Plaintiff satisfied Step One because she had not engaged in substantial gainful activity since the alleged onset date. (20 C.F.R. §§ 404.1520(c), 416.920(c)). (R. at 18). At Step Two, he found that Plaintiff had severe impairments including cervical disc herniation (status post-surgery), chronic low back pain, asthma, attention deficit hyperactivity disorder, bipolar disorder, and anxiety disorder. (20 C.F.R. §§ 404.1520(c), 416.920(c)). (R. at 18). These impairments did not meet one of the listings under the Act, either individually or in combination, and so the analysis proceeded beyond Step Three. (R. at 18).

For the remaining steps, and after considering evidence from the Record, the ALJ found that Plaintiff has the RFC to perform light work, with the following limitations:

• Ability to alternate between sitting and standing as needed;
• No more than occasional pushing, pulling, climbing, balancing, stooping kneeling, crouching and crawling;
• Must be in a well-ventilated area-no work in proximity to temperature extremes, excessive levels of wetness or humidity, concentrated exposure to airborne irritants such as fumes, odors, dusts and gases;
• No proximity to occupational hazards such as unprotected heights, dangerous machinery, ropes, ladders, and scaffolds;
• No contact with the public;
• Low stress work, which the ALJ defined as no complex decision-making, no high volume productivity requirements, and very infrequent unexpected changes in the workplace;
• No more than occasional superficial interaction with co-workers or supervisors;
• No more than simple, routine, repetitive tasks.

(R. at 20-21). In light of these restrictions, the ALJ found that Plaintiff is unable to perform any past relevant work. (R. at 27). However, considering the Plaintiff's age, education, work experience, the RFC, and the VE's testimony, the ALJ concluded there are a significant number of jobs existing in the national economy wherein Plaintiff is able to work, despite her limitations. ( Id. ).

Plaintiff argues that the Commissioner's decision to deny disability benefits is not supported by substantial evidence and consequently should be remanded. (Docket No. 10, at 9). She appeals to this Court under 42 U.S.C. § 405(g), raising two arguments: (1) the VE's testimony in response to the ALJ's hypothetical RFC conflicts with the Dictionary of Occupational Titles; and (2) the ALJ erred by neglecting to include a reaching limitation in his RFC, which logically should have been included in light of his findings at Step Two. (Docket No. 10, at 5, 7). In her cross-motion for Summary Judgment, Commissioner contends that the ALJ's findings in the RFC and his determination that Plaintiff is not disabled are both supported by substantial evidence. (Docket No. 12, at 11, 13). The Court now considers each of Plaintiff's arguments, in turn.

A. Conflict Between VE Testimony/RFC Findings and Dictionary of Occupational Titles

Plaintiff first focuses on the ALJ's findings at Step Five, arguing that the jobs the VE provided in response to the ALJ's hypothetical RFC findings-packer, sorter, and mail clerk- are incompatible with the RFC findings under the Dictionary of Occupational Titles[73] (DOT). (Docket No. 10, at 5-6). The VE did not provide the DOT numbers for the three jobs during her testimony. (R. at 67-68). In her brief, Plaintiff supplies possible DOT numbers for each job, and then sets forth that the exertional information listed in the DOT is inconsistent with the ALJ's hypothetical RFC. (Docket No. 10, at 5-6). Pointing to Boone v. Barnhart, 353 F.3d 203, 208 (3d Cir. 2003), Plaintiff contends that the conflict between the VE's testimony and the DOT require remand in that the ALJ failed to meet his burden at Step Five. (Docket No. 10, at 5-7). She reasons that "it is not a minor inconsistency where nearly every job cited by the vocational expert was beyond the capacity of the ALJ's hypothetical RFC when actually looking at how the jobs are defined in the DOT." ( Id. ).

This Court finds that remand is not required based on the alleged conflict. As with all social security cases, assuming a claimant meets his or her burden at Steps One through Four, Step Five places a burden upon the Commissioner to prove that a particular claimant is able to perform substantial gainful activity in jobs available in the national economy. Doak v.Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Plaintiff is correct in that the Commissioner's regulations take administrative notice of the information contained in the DOT. 20 C.F.R. § 416.966(d); Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002). However, Plaintiff's argument fails because a VE's testimony need not be based solely on the DOT's job descriptions. Conn v. Astrue, 852 F.Supp.2d 517, 528-29 (D. Del. 2012). Formal job descriptions do not always mirror the duties that employees are expected to perform and the conditions in which they are required to work. Garcetti v. Ceballos, 547 U.S. 410, 424-25 (2006). The primary function of vocational expert testimony is to supplement generic job descriptions with information about what employers in the national economy actually expect of their employees on a day-to-day basis. A vocational expert may testify based on her education, training, and experience. Conn, 852 F.Supp.2d at 528-29. Such testimony cannot be impugned merely because it accounts for information existing apart from the job descriptions found in the DOT.

Plaintiff avers that the jobs suggested by the VE conflict with the ALJ's finding of her ability to do work at the light, unskilled level. (Docket No. 10, at 5). However, as Commissioner points out, the same job titles appear in the DOT at different exertional levels depending on the precise industry involved. (Docket No. 12, at 14-15).[74] At the hearing, the VE specifically testified that the jobs to which she was referring existed "at the light exertional level." (R. at 67-68). Thus, it is clear from the Record that the VE was accounting for Plaintiff's exertional limitations. Id. Plaintiff cannot evade the import of that testimony by pointing to DOT job descriptions referring to positions at high exertional levels, and speculating that, because the precise numerical classifications were not identified at the hearing, the VE might have been mistaken. As such, this Court finds that remand is not required.

B. RFC Findings

Plaintiff's second argument attacks the ALJ's RFC findings, in that the ALJ did not include a limitation relating to reaching or range of motion. (Docket No. 10, at 7-8). To this end, Plaintiff points to the ALJ's determination at Step Two that Plaintiff has multiple severe medical impairments, including degenerative disc disease and spinal stenosis of the cervical spine (status-post surgery) with evidence that this causes arm weakness. ( Id. at 8). Plaintiff argues that it "seems logical" that with these conditions, an RFC would include "some limitation in terms of reaching overhead, reaching forward or laterally, limited range of motion of the neck, and possibly other manipulative limitations, such as with handling or dexterity." ( Id. ). Further, Plaintiff notes that an additional limitation with respect to reaching might change the ultimate outcome, in that her RFC could potentially become sedentary. ( Id. ) Considering her age category of 50-54[75] and vocational profile, if she is limited to sedentary work, Plaintiff argues, "it could be a potentially outcome-determinative point." ( Id. ).

Commissioner argues that the RFC is supported by substantial evidence, and that remand is not required. (Docket No. 12, at 11-13). Commissioner contends that the ALJ sufficiently addressed Plaintiff's back and neck impairments by restricting her to light work that required lifting no more than ten pounds on a regular basis with only occasional postural activities and no climbing, as well as providing her with a sit/stand option whenever she needed to change positions due to her lower back pain complaints. ( Id. at 11). These findings, Commissioner argues, are supported by the medical records detailing Plaintiff's physical limitations from her treating orthopedic physician, Dr. Thomas; the consultative examination by Dr. Christo; surgical records from Plaintiff's procedure by Dr. Lee; and examination notes from Dr. Anand. ( Id. at 11-12). Commissioner also discusses psychological treatment and evaluations from Drs. Christo, Getz, Shymansky, and Sinu, which support finding no limitation on Plaintiff's ability to reach. ( Id. ). Further, Commissioner claims that there is no support for the opinion of Plaintiff's social worker/therapist, Callie Cooper. ( Id. at 13). Her opinion that Plaintiff was severely limited is inconsistent with Dr. Shymansky's and Dr. Getz's neurological tests, as well as Dr. Christo's observation that Plaintiff "was able to follow directions as he gave them, and able to add simple and complex numbers without difficulty." ( Id. ). Because there was no support for Ms. Cooper's opinion, and because a social worker is not an acceptable medical source under the regulations, [76] Commissioner concluded "her opinion is not entitled to controlling weight." ( Id. ).

When applying for SSA benefits, a claimant bears the burden of producing evidence about his or her medical condition. Bowen v. Yuckert, 482 U.S. 137, 137 n.5 (1987). Once evidence such as medical records have been provided by the claimant, if the record contains objective evidence of an impairment that could reasonably be expected to cause pain, the ALJ must give "serious consideration" to a claimant's subjective complaints of pain. Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 2005). If the claimant does not provide medical records that establish an impairment that significantly limits the claimant's ability to do basic work activities, the ALJ can assume a claimant has no limitations until it is proven that one exists. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).

In light of this authority, and upon review of the Record, this Court finds that the ALJ adequately met his responsibilities under the law. The ALJ accommodated Plaintiff's complaints of pain in her back and neck by restricting her to light work requiring lifting no more than ten pounds on a regular basis, with only occasional postural activities, and no climbing. (R. at 20-21).

Plaintiff's claim that an additional limitation was required based on "logic" (Docket No. 10, at 8), lacks merit because the Record contains substantial evidence to support the ALJ's decision that no further limitation was needed. The ALJ found that the preponderance of the evidence supported his RFC. (R. at 22). In June 2009, Dr. Thomas reviewed Plaintiff's MRI following her automobile accident and determined that she could return to work. (R. at 250). In March 2010, Dr. Christo's examination showed Plaintiff's neck had good range of motion, and that her upper extremities had full range of motion at the shoulders, elbows, and wrists. (R. at 331, 335). This examination showed no limitation on reaching. ( Id. ). Additionally, after Dr. Lee performed decompression of Plaintiff's cervical nerve roots on April 11, 2011, Plaintiff stated she no longer had any weakness or radicular symptoms, and Dr. Lee advised her not to lift more than 10 to 15 pounds at a time. (R. at 465). The ALJ accommodated this restriction by including functional limitations that limited Plaintiff to light work, with a sit/stand option, limitations for pushing and pulling, occasional postural maneuvers, and no occupational hazards. (R. at 24). Finally six months after the surgery, x-rays of Plaintiff's cervical spine showed "the fusion looks pretty solid, " and she had good range of motion. (Docket No. 12, at 12; R. at 635).

The ALJ included postural and lifting restrictions in his RFC that sufficiently accommodate Plaintiff's alleged complaints, and are supported by the medical evidence she provided. Additionally, the ALJ included all of said limitations in his hypothetical question posed to the VE at the hearing. In sum, the Court finds that the ALJ's determinations with respect to any limitations caused by Plaintiff's cervical disc herniation and/or degenerative disc disease were supported by substantial evidence. (R. at 22-26). As such, remand in this case is not warranted.


Based upon the abovementioned, this Court finds the decision of the ALJ is supported by substantial evidence from Plaintiff's record. Reversal or remand of the ALJ's decision is not appropriate. Accordingly, Plaintiff's Motion for Summary Judgment is DENIED; Defendant's Motion for Summary Judgment is GRANTED; and, the decision of the ALJ is AFFIRMED. Appropriate Orders follow. cc/ecf: All counsel of record

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