United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
APPEAL DOC. 1, 9, 10, 12, 16, 17
B. COHN UNITED STATES MAGISTRATE JUDGE.
above-captioned action is one seeking review of a decision of
the Commissioner of Social Security (“Defendant”)
denying Plaintiff's application for supplemental security
income (“SSI”) under the Social Security Act, 42
U.S.C. §§401-433, 1382-1383 (the
“Act”), and Social Security Regulations, 20
C.F.R. §§404 et seq., 416 et seq.
complained of pain in her neck, back, shoulder, and right
knee, numbness in her extremities, and shortness of breath
and other respiratory symptoms. Doc. 10. Examinations and
imaging showed objective abnormalities in her neck, back,
shoulder, right knee, and respiratory system. Doc. 10.
Vocational evidence indicates that if these impairments
restricted Plaintiff to a limited range of sedentary work
with additional mental limitations, she could perform the
basic job responsibilities of a semi-conductor bonder, a
stuffer, and a nut sorter. Doc. 10. If claimant can perform
even one of these jobs, she is not disabled. 42 U.S.C. §
423(d)(2)(A) (Claimant is not disabled if capable of
performing job if it were offered to claimant, regardless of
whether job openings at that position exist or claimant is
likely to get hired). A nut sorter “observes nut meats
on conveyor belt, and picks out broken, shriveled, or wormy
nuts and foreign matter, such as leaves and rocks” and
“[p]laces defective nuts and foreign matter into
containers.” 521.687-086 NUT SORTER, DICOT 521.687-086.
Non-treating medical opinions, uncontradicted by any other
“medical opinion” in the record, supported the
ALJ's finding that Plaintiff could perform a range of
sedentary work. See 20 C.F.R. §404.1527(a)
(defining “medical opinion”). In
Chandler, the Third Circuit held that an ALJ
properly relied on a non-treating opinion, where no other
medical opinion existed in the record before the ALJ.
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356,
360-63 (3d Cir. 2011); see also 20 C.F.R.
§§404.1527(a); (d) (If statement is from individual
who is not an acceptable medical source, or is on issue
reserved from the Commissioner, it does not meet definition
of “medical opinion”).
Court finds that the ALJ properly relied on the medical
opinions and denied benefits. The substantial evidence
standard requires the Court to uphold the ALJ's decision
if any reasonable person would have relied on the relevant
evidence to deny Plaintiff benefits. Reefer v.
Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). The ALJ
decision only lacks substantial evidence if the Court would
direct a verdict in Plaintiff's favor. Id.
Plaintiff's lay interpretation of medical evidence and
less-than-fully credible testimony are insufficient to
demonstrate that no reasonable person would have relied on
the medical opinions to find that she could perform work in
the national economy, or that the Court would direct a
verdict in her favor if the issue were before a jury. The
Court recommends that Plaintiff's appeal be denied, the
decision of the Commissioner be affirmed, and the case
11, 2012, Plaintiff applied for SSI. (Tr. 26). On November
13, 2012, the Bureau of Disability Determination denied this
application, (Tr. 107-25) and Plaintiff requested a hearing.
(Tr. 126). On July 7, 2014, an ALJ held a hearing at which
Plaintiff-who was represented by an attorney-and a vocational
expert (“VE”) appeared and testified. (Tr.
41-89). On July 18, 2014, the ALJ found that Plaintiff was
not disabled and not entitled to benefits. (Tr. 17-40).
Plaintiff requested review with the Appeals Council, which
the Appeals Council denied on February 9, 2015, thereby
affirming the decision of the ALJ as the “final
decision” of the Commissioner. (Tr. 1-7). See Sims
v. Apfel, 530 U.S. 103, 107 (2000).
September 20, 2015, Plaintiff filed the above-captioned
action pursuant to 42 U.S.C. § 405(g) to appeal the
decision of the Commissioner. (Doc. 1). On November 27, 2015,
the Commissioner filed an answer and administrative
transcript of proceedings. (Docs. 9, 10). On January 5, 2016,
Plaintiff filed a brief in support of the appeal (“Pl.
Brief”). (Doc. 12). On February 5, 2016, Defendant
filed a brief in response (“Def. Brief”). (Doc.
16). February 12, 2016, Plaintiff filed a brief in reply
(“Pl. Reply”). (Doc. 17). On January 15, 2016,
the case was referred to the undersigned Magistrate Judge.
The matter is now ripe for review.
Standard of Review and Sequential Evaluation Process
receive benefits under the Act, a claimant must establish 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. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act
requires that a claimant for disability benefits show 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.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §
uses a five-step evaluation process to determine if a person
is eligible for disability benefits. See 20 C.F.R.
§ 404.1520. The ALJ must sequentially determine: (1)
whether the claimant is engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals a
listed impairment from 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“Listing”); (4) whether the
claimant's impairment prevents the claimant from doing
past relevant work; and (5) whether the claimant's
impairment prevents the claimant from doing any other work.
See 20 C.F.R. §§ 404.1520. Before step
four in this process, the ALJ must also determine
Plaintiff's residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e).
disability determination involves shifting burdens of proof.
The claimant bears the burden of proof at steps one through
four. If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the
national economy that the claimant can perform. Mason v.
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The
ultimate burden of proving disability under the Act lies with
the claimant. See 42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 416.912(a). Specifically, the Act provides
An individual shall not be considered to be under a
disability unless he furnishes such medical and other
evidence of the existence thereof as the Commissioner of
Social Security may require. An individual's statement as
to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section; there must
be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques,
which show the existence of a medical impairment that results
from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce
the pain or other symptoms alleged and which, when considered
with all evidence required to be furnished under this
paragraph (including statements of the individual or his
physician as to the intensity and persistence of such pain or
other symptoms which may reasonably be accepted as consistent
with the medical signs and findings), would lead to a
conclusion that the individual is under a disability.
42 U.S.C. § 423(d)(5)(A); 42 U.S.C.A. §
Court reviews the ALJ's decision under the deferential
substantial evidence standard. Reefer v. Barnhart,
326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence
supports the ALJ decision unless no “reasonable mind
might accept [the relevant evidence] as adequate to support a
conclusion.” Id. (internal citations omitted).
“Stated differently, this standard is met if there is
sufficient evidence ‘to justify, if the trial were to a
jury, a refusal to direct a verdict.'” Id.
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Substantial
evidence is “less than a preponderance” and
“more than a mere scintilla.” Jesurum v.
Sec'y of U.S. Dep't of Health & Human
Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Relevant Facts in the Record
Age, Education, and Vocational History
Regulations classify Plaintiff, born in 1966, as a younger
individual. (Tr. 17); 20 C.F.R. § 404.1563. Plaintiff
has a limited education and no past relevant work. (Tr. 33).
The administrative transcript is 672 pages long. Doc. 10.
alleges onset in October of 2010. (Tr. 26). She briefly
reported musculoskeletal symptoms in the summer of 2011, but
by October 2011, she had no musculoskeletal symptoms. (Tr.
295, 297, 300).
established care in February of 2012 with PA-C Nse Apke, who
noted she “ha[d] some forms for completion.” (Tr.
319). She reported back symptoms and numbness in her upper
extremities, and reported neck pain on follow-up. (Tr. 317,
319). On June 28, 2012, she was hospitalized for a latex
allergy and had no musculoskeletal complaints, normal gait,
and walked without assistance. (Tr. 430). On July 11, 2012,
she applied for SSI. (Tr. 26). On July 12, 2012, she
presented to an orthopedic PA-C, D. Miller-Griffie, using a
cane, although her gait appeared normal,
“declined” physical therapy, did not stop
smoking, and did not follow-through with a referral to a
doctor. (Tr. 327-28). On July 31, 2012, she submitted a
Function Report supporting her SSI application where she
reported that she could not lift more than five pounds, her
leg and arms tingle “24/7, ” could not walk
without a cane or holding onto a wall, and was limited in
squatting, bending, standing, reaching, walking, kneeling,
and climbing stairs due to pain in her neck and back. (Tr.
240-47). Plaintiff's mother submitted a similar Function
Report. (Tr. 258-65). Four days later, on August 3, 2012, she
reported to PA-C Apke that she had “no neck
pain…no musculoskeletal symptoms, no arthralgias, no
soft tissue swelling” and PA-C Apke observed normal
findings on musculoskeletal examination. (Tr. 304). PA-C Apke
also noted Plaintiff reported “she is no longer
receiving cash assistance and has no money on her” and
that she was “trying to get housing and they request a
letter from the doctor stating that she is disabled.”
(Tr. 353). No letter from PA-C Apke that Plaintiff is
disabled appears in the record. Doc. 10.
September of 2012, Plaintiff denied musculoskeletal symptoms
and musculoskeletal examination was normal during an
emergency room visit and follow-up with PA-C Apke. (Tr. 352,
498). The same month, Plaintiff followed-up with PA-C
Millie-Griffie, reporting continued falls, neck pain and
“walking with a cane” (Tr. 590). Plaintiff had
decreased sensation, increased reflexes, and positive
Hoffman's sign, but normal strength and range of motion
with no spasm or tenderness. (Tr. 590). PA-C Miller-Griffie
again referred Plaintiff to Dr. Fernandez and ordered an MRI.
October 23, 2012 and January 4, 2013, Plaintiff followed-up
with PA-C Apke, “request[ed] a letter to take with her
confirming that she has metal in her body, ” and denied
having any symptoms except an earache, with “no
systemic symptoms and not feeling tired or poorly.”
(Tr. 350-353) (“no musculoskeletal symptoms, no
arthralgias, no soft tissue swelling”). Examination was
normal except tenderness. (Tr. 352). There is no mention of a
cane. (Tr. 350, 352).
February and March of 2013, Plaintiff treated with Dr.
Raymond Dahl, D.O., at OIP for knee pain. (Tr. 592-94). On
March 20, 2013, Dr. Dahl noted MRI came back
“essentially normal” and wrote “I have
recommended physical therapy. I did go over the MRI with
her.” (Tr. 594). Plaintiff reported being in a lot of
pain and that she utilized a cane, but examination was normal
aside from antalgic gait:
On physical exam, the patient is alert and oriented x3, in no
acute distress, pleasant, cooperative with normal posture and
antalgic gait. The right lower extremity is neurovascularly
intact with good sensation and good distal pulses. She has no
ligamentous laxity to varus or valgus stress and
anterior/posterior drawer. Skin is clean, dry, and intact. No
days later, Plaintiff presented to new primary care doctor
Dr. Paul Baughman, D.O.. (Tr. 555). She reported that Dr.
Dahl “never sent her to physical therapy.” (Tr.
555, 560). Dr. Baughman noted “she tells me she
doesn't have the money to do it but she has gateway
[insurance].” (Tr. 555). Plaintiff reported hip pain
and denied “ambulatory dysfunction, arthritis, injury
and joint swelling.” (Tr. 555). Examination indicated
crepitus in the right knee and Plaintiff used a cane to
ambulate. (Tr. 556). Plaintiff began physical therapy on
April 1, 2013. (Tr. 633). By April 25, 2013, Dr. Baughman
observed that Plaintiff was “walk[ing] with a normal
gait for age” and examination was normal, although she
reported pain “everywhere, ” particularly her
left shoulder. (Tr. 552-53).
treated with Dr. Baughman and PA-C Kropa on May 7, 2013 and
May 14, 2013. (Tr. 545-48). Plaintiff denied musculoskeletal
symptoms. (Tr. 548). Examination was normal, with normal
gait. (Tr. 546). Plaintiff was hospitalized from May 16, 2013
through May 20, 2013 for allegedly passing out while driving,
but musculoskeletal examinations were normal, with no
cyanosis, swelling, tenderness, effusion, or edema. (Tr. 373,
407, 409, 411). Contemporaneous physical therapy records
indicated no loss of balance, shortness of breath, or
dizziness on ambulation, although she “furniture walked
at times.” (Tr. 415). Occupational therapy evaluation
indicated that Plaintiff was “independent” in all
daily activities using both upper and lower extremities, with
intact attention span, concentration, memory, sensation, and
social interaction. (Tr. 417). Plaintiff reported pain was
“0.” (Tr. 417). Providers opined “[patient]
is independent with [activities of daily living] and
functional mobility. No need for skilled [occupational
therapy] services.” (Tr. 417).
23, 2013, Plaintiff followed-up with Dr. Baughman and
reported “neck pain since her accident.” (Tr.
538). Dr. Baughman noted that Plaintiff was using a cane and
examination was normal. (Tr. 539). Dr. Baughman restricted
her from driving and prescribed Fentanyl. (Tr. 539).
of 2013, Plaintiff also treated with Dr. Ernest Rubbo, M.D.,
at OIP, for left shoulder pain. (Tr. 595-96). Plaintiff
reported “dull achiness, ” “slight
weakness, ” and numbness and tingling in her left arm
and hand. (Tr. 595). Examination indicated positive
impingement sign and “some weakness with
abduction” but full range of motion. (Tr. 595). In June
and July of 2013, Plaintiff presented to Dr. Brett
Himmelwright, D.O. at OIP for neck and right shoulder pain.
(Tr. 576). Neither Dr. Rubbo nor Dr. Himmelwright mention a
cane. (Tr. 572-76). Dr. Himmelwright noted, “she was
supposed to follow up with Dr. Fernandez but did not.”
(Tr. 572). In July of 2013, Dr. Himmelwright refused to
prescribe new medications and referred her to physical
therapy, and on follow-up on July 26, 2013, noted that
Plaintiff “does do well when she takes Flexeril,
” emphasized that Plaintiff needed to start physical
therapy and renewed her Flexeril. (Tr. 575-76) (“I had
recommended physical therapy previously but she has not been
able to do this as yet…physical therapy would be an
important part of her recovery and we really needed her to
get that started”). Ten days later, Plaintiff reported
to Dr. Baughman that she had “completed PT with no
help.” (Tr. 532).
September 20, 2013, Plaintiff presented to PA-C Kathryn
Mueller, who noted “[s]he has been seen by Dr. Rubbo
for some shoulder issues and she actually had her left
shoulder injection and was told to followup if there is was
no improvement. She actually did not followup and I am seeing
her here today for bilateral shoulder pain, right greater
than left and continued pain in her cervical spine.”
denied having any musculoskeletal symptoms except left
shoulder and spine pain to Dr. Baughman from May through
December of 2013. (Tr. 526-37)
(“denies…ambulatory dysfunction, arthritis,
injury, joint swelling…numbness/tingling). Plaintiff
underwent physical therapy for her shoulder and neck, and
discharge notes on October 9, 2013 indicate that cervical
range of motion had improved, shoulder range of motion had
improved to nearly full range, and she had improved ability
to reach overhead. (Tr. 597). In December of 2013, Dr. Rubbio
noted pain but “she has not noticed any loss of motion
or strength.” (Tr. 591). Plaintiff had tenderness and
positive impingement sign with normal vascular, sensory, and
range of motion examinations. (Tr. 581). Dr. Rubbo
recommended shoulder surgery, which he performed in January
of 2014 “with improvement of pre-operative
symptoms.” (Tr. 585).
March of 2014, Dr. Rubbo noted stiffness and soreness with
range of motion after falling on ice, but Plaintiff exhibited
full range of motion and no tenderness. (Tr. 586). Dr. Rubbo
prescribed physical therapy. (Tr. 586). In April of 2014,
Plaintiff reported that she had stopped therapy due to pain,
and Dr. Rubbo instructed Plaintiff to continue with physical
therapy. (Tr. 589).
was scheduled to appear before the ALJ on April 11, 2014,
although the ALJ would continue the hearing for Plaintiff to
obtain counsel. (Tr. 92-106). On April 2, 2014, Plaintiff
presented to Dr. Baughman and “state[d] the most
important reason she is here is she needs a letter for SSI,
that she states she is unable to work?” (Tr. 522). She
reported significantly greater symptoms that she had at her
previous follow-up on December 30, 2013 (Tr. 526), although
she continued denying “disorientation, headache,
numbness/tingling, seizures and ...