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Root v. Colvin

United States District Court, M.D. Pennsylvania

March 31, 2014



SYLVIA H. RAMBO, District Judge.


The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Gloria Jean Root's claim for social security disability insurance benefits.

Root protectively filed[1] her application for disability insurance benefits on February 4, 2010. Tr. 12, 148-150, 155 and 157.[2] The application was initially denied by the Bureau of Disability Determination on May 27, 2010.[3] Tr. 12 and 96-100. On June 21, 2010, Root requested a hearing before an administrative law judge. Tr. 12 and 103-104. After 11 months had elapsed a hearing was held on May 24, 2011. Tr. 28-94. On June 30, 2011, the administrative law judge issued a decision denying Root's application. Tr. 12-23. On August 3, 2011, Root filed a request for review with the Appeals Council, and after over 17 months had passed, the Appeals Council on January 15, 2013, concluded that there was no basis upon which to grant Root's request for review. Tr. 1-8, Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Root then filed a complaint in this court on March 12, 2013. Supporting and opposing briefs were submitted and the appeal[4] became ripe for disposition on August 6, 2013, when Root filed a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured, " that is, the individual has worked long enough and paid social security taxes. 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 Root meets the insured status requirements of the Social Security Act through December 31, 2014. Tr. 12, 14 and 155.

Root was born on April 17, 1964, and at all times relevant to this matter was considered a "younger individual"[5] whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. § 404.1563©; Tr. 34 and 148.

Root who withdrew from school after completing the 10th grade and who obtained a General Equivalency Diploma (GED) in 2000 can read, write, speak and understand the English language and perform basic mathematical functions such as paying bills, counting change, and handling her own finances. Tr. 39-40, 64, 160 and 193. During her elementary and secondary schooling, Root attended regular education classes. Tr. 162. After obtaining a GED Root did not complete "any type of specialized job training, trade or vocational school." Id.

Root's work history covers 30 years and at least 3 different employers. Tr. 152-154, 156, 172 and 184. The records of the Social Security Administration reveal that Root had earnings in the years 1980 through 2009. Tr. 156. Root's annual earnings range from a low of $1654.90 in 1982 to a high of $18, 643.22 in 2008. Id . Root's total earnings during those 30 years were $315, 412.23. Id.

Root has past relevant employment[6] as (1) a finisher of dentures (orthodontic laboratory technician) which was described by a vocational expert as skilled, light work, and (2) a sewing machine operator which was described as semi-skilled, light work as normally performed in the economy but semi-skilled, medium work as actually performed by Root. Tr. 85.

Root claims that she became disabled on September 22, 2009, because of both physical and mental impairments. Tr. 35-36, 96, 148 and 161. Root identified depression and stress as her mental health impairments and back pain radiating into the right lower extremity, involving degenerative disc disease, as her physical impairment. Tr. 161 and 297. Root underwent back surgery in late September, 2009, and contends that she suffers from failed back surgery syndrome. Doc. 9, Plaintiff's Brief, p. 2-3. At the administrative hearing when asked to described the major items that prevented her from working, Root focused on the side effects of the medications she takes, including morphine. Tr. 41-46. She also noted that pain associated with her conditions prevents her from sitting or standing for long periods of time and that during the day she frequently naps in a prone position. Tr. 47-52. Root last worked on September 21, 2009. Tr. 36.

Although Root claims that she has been disabled and unable to work full-time since September 22, 2009, the record reveals that Root applied for and received unemployment compensation benefits during the third and fourth quarters of 2009 and the first quarter of 2010.[7] Tr. 14, 35-38 and 150.

For the reasons set forth below we will affirm the decision of the Commissioner denying Root's application for disability insurance benefits.


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, the 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 benefits claims. See 20 C.F.R. §404.1520; Poulos , 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity, [8] (2) has an impairment that is severe or a combination of impairments that is severe, [9] (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, [10] (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.[11]

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). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. 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).").


The medical records reveal that Root was treated for both physical and psychological problems. We will commence with Root's medical records that predate September 22, 2009, the date Root alleges that she became disabled.

On May 22, 2007, Root had an appointment with Marlene Claman, a certified physicians assistant, at the Fredericksburg Community Health Center regarding bilateral flank pain. Tr. 349. The report of this appointment reveals that Root was a new patient who had a history of depression and had been taking Lexapro[12] and Prozac, both antidepressants, but those drugs did not help and she was presently taking citalopram[13] and doing well. Id . The report further reveled that Root had a history of gastrointestinal problems. Id . The results of a physical examination were essentially normal. Id . Root did have some flank pain and mild pain when Ms. Claman attempted to "capture the right kidney."[14] Id . A urinalysis was normal. Id . Ms. Claman's diagnostic assessment was that Root suffered from thoracic back pain, depression, reflux and bullous pemphigus.[15] Id . Root was advised to take the nonsteroidal anti-inflammatory drug ibuprofen twice daily for the next week and perform stretching exercises. Id . Ms. Claman also ordered an x-ray of the thoracic spine. Id . The x-ray was performed on the same day and revealed "degenerative spurring and narrowing of [the] disc space at [the] T11-T12 level." Tr. 481.

On May 24, 2007, Root had a follow-up appointment at Fredericksburg Community Health Center with Robert E. England, a certified physicians assistant, at which Root continued to complain of back pain. Tr. 350. Root reported receiving no benefit from taking ibuprofen. Id . A physical examination revealed "tenderness with palpation along the paraspinal musculature over the course of the thoracic area" but "[n]egative straight leg raises bilaterally."[16] Id . The diagnostic assessment was "[p]ersistent mid back pain" and Root was prescribed the nonsteroidal anti-inflammatory drug Celebrex and the muscle relaxant Flexeril, and encouraged to apply ice to the painful areas after any activity and moist heat at other times and to perform stretching exercises. Id.

At an appointment with a medical provider at Fredericksburg Community Health Center on August 9, 2007, Root reported that her gastroesophageal reflux disease was stable on Nexium;[16] she felt Celexa was helping her depression; her back pain was stable as a result of taking the nonsteroidal anti-inflammatory drug naprosyn as needed; and her skin condition (bullous pemphigoid) was stable on dapsone[17] and she was continuing to see a dermatologist. Tr. 351. The results of a physical examination were normal. Id.

The medical records from 2007 do not reveal any problems with Root's gait or ability to stand, walk, sit, and lift or carry items. Also, they do not reveal that Root had any muscle weakness, decrease in muscle tone, or any neurological problems such as impaired sensation.

Root continued to have appointments at and received treatment from Fredericksburg Community Health Center during 2008. Tr. 239-242 and 356.

On January 11, 2008, Root was assessed by a medical provider[18] at Fredericksburg Community Health Center as suffering from depression but Root declined counseling. Tr. 239. The medical provider increased Root's dosage of Celexa to 40 mg per day. Id . There were no abnormal findings recorded regarding Root's musculoskeletal system. Id . Root's current medications were as follows: Nexium, dapsone, the antibiotic Zithromax, and citalopram. Id.

On February 21, 2008, Root had an appointment at Fredericksburg Community Health Center and denied any anxiety or depression. Tr. 240. Root reported "left knee pain and stiffness with long walking/standing or after sitting for [a] period of time" but "[n]o swelling or redness." Id . There were no objective physical examination findings recorded with respect to the left knee. Id . The medical provider ordered an x-ray of Root's left knee. Id . The x-ray revealed "[n]o acute bony changes" but the physician interpreting the x-ray stated that "[e]arly [degenerative joint disease] along the medial aspect [of the knee could not] be ruled out." Tr. 402.

On October 13, 2008, Root had an appointment at Fredericksburg Community Health Center with Shelby Margut, M.D., [19] at which Root complained of low back pain but she denied joint pain, joint stiffness, swelling, tenderness, tingling and weakness. Tr. 241. Root reported that she was sleeping at night. Id . The results of a physical examination were essentially normal. Id . Root had normal muscle strength, full range of motion of the spine, and no muscle spasms. Id . She could walk on her heels and toes and was able to get up on her tiptoes.[20] Id . Sensation was intact to light touch and she exhibited normal coordination. Id . She did have slight tenderness to palpation of the lumbar paraspinal muscles. Id . Dr. Margut prescribed the narcotic-like pain medication tramadol and the muscle relaxant Flexeril and ordered an x-ray of the lumbar spine. Id . The x-ray performed on the same day revealed that Root had "bony osteoporosis or osteopenia, "[21] an extra lumbar vertebra (L6) which was sacralized on the left side, [22] and moderate to advance arthritic changes at the lower lumbar spine. Tr. 410. The physician interpreting the x-rays recommended that if Root's symptoms persisted that "further evaluation with [an] MRI" [should][] be considered." Id.

An MRI was performed on October 17, 2008, and revealed the following: (1) vertebral body height and alignment was normal; (2) no evidence of fracture, spondylolysis[23] or spondylolisthesis;[23] (3) a transitional disc space at S1-2; (4) degenerative disc changes at all levels; (5) diffuse disc bulges at all levels with left side predominance; (6) bilateral facet joint arthropathy at L5-S1 causing a mild degree of spinal stenosis, moderate to severe left-sided foraminal narrowing, and mild right-sided foraminal narrowing; (7) a mild degree of spinal stenosis and mild to moderate degree of bilateral foraminal narrowing at the L4-L5 level; and (8) mild degree of spinal stenosis and mild bilateral foraminal narrowing at the L3-L4 and L2-L3 levels.[24] Tr. 457-458.

Based on a referral from Dr. Margut, Root commenced physical therapy at First Choice Rehabilitation Specialists on October 21, 2008. Tr. 212. After an initial evaluation by the physical therapist it was recommended that Root have physical therapy two times a week for four weeks. Id.

On November 5, 2008, Root had an appointment with Dr. Margut at which Root continued to complain of low back pain. Tr. 242. Root reported that the physical therapy which she had been attending for 2 weeks was not helping to any great extent. Id . She reported that although she had no numbness or weakness she could not get comfortable and that she was interested in epidural steroid injections. Id . The results of a physical examination were essentially normal other than Root's lumbar paraspinal muscles were tender to palpation. Id . Root exhibited no muscular spasms and she had a negative straight leg raise test. Id . Dr. Margut recommended that Root continue the physical therapy and referred her to a pain clinic for possible epidural steroid injections. Id . Also, on November ...

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