United States District Court, M.D. Pennsylvania
MARK A. SWARTZBAUGH, Plaintiff,
NANCY BERRYHILL,  Defendant.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
plaintiff, Mark A. Swartzbaugh brought this action under 42
U.S.C. § 1383(c)(3), and, as incorporated by reference,
42 U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner of Social Security denying claim
for disability and disability insurance benefits under Title
II of the Social Security Act (the “Act”).
matter has been referred to the undersigned United States
Magistrate Judge to prepare a report and recommended
disposition pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil
Procedure. For the reasons expressed herein, we recommend
that the final decision of the Commissioner be AFFIRMED.
is an adult individual born May 14, 1965. He was forty-six
years old at the time of the alleged onset of
disability-August 1, 2011. (Tr. 18).
age at the onset date makes him a “younger
person” under the Commissioner's regulations whose
age generally does not affect his ability to adjust to other
work. See 20 C.F.R. §416.963.
15, 2013, Swartzbaugh protectively filed an application for
benefits under Title II of the Social Security Act alleging
disability as of August 1, 2011. In his application,
Swartzbaugh alleged that the following impairments prevent
him from engaging in any work: fibromyalgia, lack of mental
concentration, fatigue, brain fog, difficulty to concentrate
on tasks, joint pain, headaches and depression. (Tr. 178).
claim was initially denied on October 11, 2013. Thereafter,
he filed a timely request for an administrative hearing. His
request was granted. Swartzbaugh appeared in York, PA at the
hearing before Administrative Law Judge (“ALJ”)
Reana K. Sweeney who presided over the hearing in Harrisburg,
Pennsylvania on December 11, 2014. At the hearing,
Swartzbaugh represented himself. Swartzbaugh appeared at a
supplemental hearing held on February 19, 2015. In addition,
impartial vocational expert Brian Bierley (“VE”)
appeared at the hearing.
March 31, 2015, the ALJ denied Swartzbaugh's application
for benefits in a written decision. On May 28, 2015,
Swartzbaugh sought further review of his claims by the
Appeals Council of the Office of Disability Adjudication and
Review, but his request was denied on November 4, 2016. This
makes the ALJ's March 2015 decision the final decision
subject to judicial review by this Court.
filed a timely complaint in this Court on January 6, 2017.
(Doc. 1). In his complaint, Swartzbaugh alleges that the
final decision of the Commissioner is not supported by
substantial evidence and is contrary to law and regulation.
17, 2017, the Commissioner filed her answer, in which she
maintains that the ALJ's decision was made in accordance
with the law and is supported by substantial evidence. (Doc.
matter has been fully briefed by the parties and is ripe for
decision. (Docs. 11, 12, and 15).
time of the administrative hearings, Swartzbaugh was forty
nine years old and resided in York, Pennsylvania, which is in
the Middle District of Pennsylvania. Swartzbaugh completed a
high school education and holds a degree in business
administration. (Tr. 42).
resides with his wife, mother, and 18 year old son. (Tr. 37).
Swartzbaugh stated that he was discharged from his previous
employer due to his performance. (Tr. 40).
possesses a driver's license (Tr. 41).
stated that he does volunteer work for Pennsylvania Friends
of Jazz, where he serves on the board. He stated the board
meets six times a year. (Tr. 47). He stated he plays jazz
(drums) approximately six times per month. (Tr. 47).
Swartzbaugh stated that he used to play tennis for exercise
but has not played since November, 2013. (Tr. 50).
testified that he has been diagnosed with sleep apnea and has
a CPAP machine, but probably only uses it for approximately
four hours a night. (Tr. 57).
testified that in a typical day, he wakes up around 3:00 p.m.
(Tr. 62). He brushes his teeth, makes a pot of coffee, and
then takes his medications. He then sits on a chair, watches
television, and drinks coffee. Then about 5:00 p.m. he will
start to make dinner. After dinner, he typically falls asleep
in the living room on a recliner. (Tr. 63-64). He then sleeps
for about two hours and wakes up to clean up dinner. He will
then use the computer to surf the internet and look at social
media. (Tr. 64). He spends approximately two hours on the
computer. (Tr. 64).
testified that he practices his drums typically two times a
week. (Tr. 65).
Standard of Review
reviewing the denial of disability benefits, the Court's
review is limited to determining whether those findings are
supported by substantial evidence in the administrative
record. See 42 U.S.C. § 405(g) (sentence five);
Johnson v. Comm'r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d
533, 536 (M.D. Pa. 2012). 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 (1988). Substantial evidence
is less than a preponderance of the evidence but more than a
mere scintilla. Richardson v. Perales, 402 U.S. 389,
401 (1971). A single piece of evidence is not substantial
evidence if the ALJ ignores countervailing evidence or fails
to resolve a conflict created by the evidence. Mason v.
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 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 [the ALJ's decision] from
being supported by substantial evidence.” Consolo
v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
“In determining if the Commissioner's decision is
supported by substantial evidence the court must scrutinize
the record as a whole.” Leslie v. Barnhart,
304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before
the Court, therefore, is not whether the claimant is
disabled, but whether the Commissioner's finding that he
or she is not disabled is supported by substantial evidence
and was reached based upon a correct application of the
relevant law. See Arnold v. Colvin, No.
3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014)
(“[I]t has been held that an ALJ's errors of law
denote a lack of substantial evidence.”) (alterations
omitted); Burton v. Schweiker, 512 F.Supp. 913, 914
(W.D. Pa. 1981) (“The [Commissioner]'s
determination as to the status of a claim requires the
correct application of the law to the facts.”); see
also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir.
1990) (noting that the scope of review on legal matters is
plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he
court has plenary review of all legal issues . . . .”).
receive disability benefits, a claimant 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. §
423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
To satisfy this requirement, a claimant must have a severe
physical or mental impairment that makes it impossible to do
his or her previous work or any other substantial gainful
activity that exists in the national economy. 42
U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
Commissioner follows a five-step sequential evaluation
process in determining whether a claimant is disabled under
the Social Security Act. 20 C.F.R. § 404.1520(a). Under
this process, the Commissioner must determine, in sequence:
(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;(4) whether the claimant is able to do past
relevant work, considering his or her residual functional
capacity (“RFC”); and (5) whether the claimant is
able to do any other work, considering his or her RFC, age,
education, and work experience. Id. The claimant
bears the initial burden of demonstrating a medically
determinable impairment that prevents him or her from doing
past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R.
§ 404.1512; Mason, 994 F.2d at 1064. Once the
claimant has established at step four that he or she cannot
do past relevant work, the burden then shifts to the
Commissioner at step five to show that jobs exist in
significant numbers in the national economy that the claimant
could perform consistent with his or her RFC, age, education,
and past work experience. 20 C.F.R. § 404.1512(f);
Mason, 994 F.2d at 1064.
The ALJ's Decision
March 31, 2015, decision, the ALJ determined that Swartzbaugh
met the insured status requirement of the Act through December
31, 2015. (Tr. 20). At step one of the five-step process, the
ALJ determined that Swartzbaugh did not engage in any
substantial gainful activity between his alleged onset date
of August 1, 2011, and the date of the ALJ's decision.
(Id.). At step two, the ALJ determined that
Swartzbaugh had the following severe impairment: obstructive
sleep apnea. (Id.). The ALJ also considered several
other health conditions found in the claimant's medical
history, finding each to be non-severe. (Tr. 20- 24). At step
three, the ALJ determined that Swartzbaugh did not have an
impairment, or combination of impairments, that met or
medically equaled the severity of any one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
to step four, the ALJ determined Swartzbaugh's RFC based
on the evidence of record, including the claimant's
testimony, the findings and opinions of treating and
examining medical sources, the opinions of a non-examining
state agency medical consultant. The ALJ determined that
Swartzbaugh retained the RFC to perform a limited range of
medium work, as defined in 20 C.F.R. § 404.1567(c), with
certain non-exertional restrictions. (Id.).
Specifically, the ALJ found that:
[T]he claimant requires normal breaks throughout the workday,
including a 15 minute early shift break, 30 minute lunch
break and 15 minute late shift break, with 2 unscheduled 5
minute breaks. The claimant is limited to occasionally
crawling on his hand[s] and knees or feet. The claimant is