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Goss v. Berryhill

United States District Court, W.D. Pennsylvania

February 23, 2017

IVA LAVINE GOSS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          Donetta W. Ambrose United States Senior District Judge.

         Synopsis

         Plaintiff Iva Lavine Goss (“Goss”) brings this action seeking judicial review of the ALJ's decision denying a claim for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 1461 et seq. Goss applied for benefits on December 9, 2014 alleging a disability beginning on November 17, 2014. (R. 14) She appeared and testified at a September 29, 2015 hearing as did a vocational expert. The ALJ denied Goss' claim, finding her capable of light work with certain restrictions. (R. 20) Goss has appealed, challenging the ALJ's decision in several respects. Pending are Cross Motions for Summary Judgment. Docket no. 11 and Docket no. 14. After careful consideration, I find Goss' assertions to be unpersuasive. Consequently, the ALJ's decision is affirmed.

         Legal Analysis

         1. Standard of Review

         The standard of review in social security cases is whether substantial evidence exists in the record to support the Commissioner's decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Substantial evidence has been defined as ''more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.'' Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g., that offered by treating physicians).” Id. The Commissioner's findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo review of the Commissioner's decision or re-weigh the evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by substantial evidence, a court is bound by those findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See, 5 U.S.C. §706.

         2. The Use of A Cane

         Goss alleges that the ALJ failed to account for her need of a cane when formulating the residual functional capacity assessment (“RFC”). The vocational expert (“VE”) testified that a hypothetical individual who had certain restrictions including the use of a cane when standing and walking would be considered only for sedentary work. (R. 64) But it does not necessarily follow that the ALJ erred in rejecting the VE's conclusion in this respect. Rather, the ALJ only had to accept the VE's testimony regarding the use of the cane and therefore incorporate it into restrictions set forth in the RFC if she found that Goss actually required the use of the cane. In fact, contrary to Goss' assertions, the ALJ explicitly considered and rejected such a finding. Her finding is, as detailed below, based upon substantial evidence of record:

[t]he vocational expert also testified that an individual who needed a cane to stand and walk or could only occasionally finger and grasp would be limited to work at the sedentary exertional level. However, as discussed above, the undersigned notes that the claimant regained full strength in less than one month after her cerebrovascular accident, and the most recent medical evidence does not reveal any problems with ambulation or with fine, dexterous, or gross movements of her upper extremities. (Exhibits 18F, 19F, 21F and 22F).

         (R. 31) The ALJ found persuasive the notation in the records that “her right hemibody strength had returned and that she had not had any stroke symptoms since being discharged from the hospital.” (R. 25) Further, an examination revealed that Goss “was awake, alert, and oriented in three spheres, had no dysarthria, had fluent and appropriate speech, had normal facial symmetry, and elevated both upper extremities equally against gravity without difficulty.” (R. 25) The ALJ also referenced a visit to Dr. Huckstein, her family physician three days later, during which Goss “walked with a cane but had a normal gait.” (R. 25) (emphasis added). A subsequent progress note from Dr. Huckstein makes no mention of the “use of any assistive device, ” but does observe Goss' “normal gait.” (R. 25) Consequently, the ALJ found that “the claimant regained full strength in less than one month after her cerebrovascular accident, and the most recent medical evidence does not reveal any problems with ambulation or with fine, dexterous, or gross movements of the upper body.” (R. 26)

         Significantly, Goss is unable to point to any place in the records where a physician prescribed the cane or otherwise indicated that the cane was medically necessary.[2] At most, the medical records simply note Goss' use of the cane.[3] However, “a medical source does not transform the claimant's subjective complaints into objective findings simply by recording them ….” Hatton v. Comm'r. of Soc. Sec., 131 Fed.Appx. 877, 879 (3d Cir. 2005) (citations omitted). Social Security Ruling (“SSR”) 96-9P, 1996 WL 374185 requires ALJs to address only “medically necessary” hand-held assistive devices for purposes of formulating a RFC:

[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).

SSR 96-9P, 1996 WL 374185.

         In sum, Goss has not identified anything in the record indicating that a physician or other medical professional described the use of a cane as “medically necessary.” As such, the ALJ's ...


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