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Lewis v. Berryhill

United States District Court, E.D. Pennsylvania

July 17, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Kimberly Ann Lewis seeks judicial review of the Commissioner of Social Security's denial of her application for Supplemental Security Income (SSI) under Title II of the Social Security Act. Upon consideration of the administrative record, Magistrate Judge Henry Perkm's Report and Recommendation (ECF No. 14), the parties' Objections and Responses thereto (ECF Nos. 15, 17 & 18), the Court sustains the Commissioner's objection, approves and adopts the Report and Recommendation in part and denies Lewis's request for review.


         Lewis, then 41 years old, filed an application for SSI on June 1, 2016. (Administrative Record ("R") at 129, ECF No. 8.) She is a high school graduate with additional technical school training. (R. at 129.) She is currently unemployed but has experience working as a claims and call quality analyst for a health care company. (R. at 237.)

         Lewis claims to be disabled, with an onset date of February 27, 2016, due to hyperlordosis, bilaterial osteoarthritis of the knees, depression, anxiety, sciatica, chronic pain, bulging discs, memory loss, degenerative disc disease and migraines. (R. at 129.) On May 4, 2016, Lewis was examined by Dr. John Connelly, her family doctor. (R. at 301.) The examination revealed that she had bilateral ankle pitting edema, pretibial pitting edema, bilateral knee pitting edema and bilateral varicosities. (R. at 304.)

         Lewis was also evaluated five times by Dr. Dong Ko, a physician at Comprehensive Pain Centers. See (R. at 298, 553, 556, 560, 562, 585, 846, 867-68). Dr. Ko saw Lewis in March, April and June of 2016 and found that she had hip pain. (R. at 553, 556, 560.) In August of that year, state agency consultant Dr. Leo Potera opined that, based on her physical limitations, Lewis could only perform light work with standing, walking, postural and environmental limitations. (R. at 33.) In September, Dr. Ko examined Lewis again and found that she was still experiencing hip pain. Dr. Ko also administered a nerve root block, an injection to reduce the pain in Lewis's hip. (R. at 849-50.) Ko saw Lewis again in November, noting that her condition was consistent with his prior examinations. (R. at 846-49.) Dr. Ko completed a check-box medical source statement form and opined that Lewis was incapable of performing even sedentary work. (R. at 867-68.)

         The Social Security Administration denied Lewis's application for benefits on August 9, 2016, and she requested a hearing before an Administrative Law Judge. (R. at 148-52.) ALJ Ryan Hoback held the hearing on December 8, 2016. (R. at 40-78.) Lewis, represented by counsel, testified that her primary reason for requesting disability benefits was her anxiety. (R. at 53, 65.) She stated that she does light cleaning and some cooking, and shops approximately once a week. (R. at 56-57.) Lewis also testified that she experiences lower back pain, must frequently elevate her legs to prevent swelling, and has difficulty using stairs or sitting for more than twenty minutes without changing positions. (R. at 53, 64-65.)

         The ALJ ruled against Lewis on January 5, 2017. (R. at 29.) Applying the five-step sequential evaluation process, [1] the ALJ determined that Lewis was not "disabled" as defined by the Social Security Act. (R. at 20-35.) At steps one and two, the ALJ concluded that Lewis had not engaged in substantial gainful activity since February 27, 2016, the alleged onset date of her disability, and that she suffered from obesity, degenerative disc disease, major depressive disorder, anxiety, PTSD, venous insufficiency, lymphedema, celluhtis, fibromyalgia, degenerative joint disease and migraines. (R. at 25.) At step three, the ALJ found that Lewis's impairments did not meet or medically equal the severity of one of the listed impairments. (R. at 26.)

         At step four, the ALJ found that Lewis had the RFC to perform sedentary work, albeit with a number of sitting, postural and environmental limitations. (R. at 29.) Given this RFC, the ALJ concluded that Lewis could not perform her past relevant work. (R. at 33.) At step five, however, the ALJ found that Lewis's RFC permits her to perform jobs that exist in significant numbers in the national economy, including inspector and sorter, compact assembler and teleorder clerk. (R. at 34.) The ALJ thus found that Lewis was not disabled within the meaning of the statute and not entitled to benefits. (R. at 35.)

         The ALJ's decision became final after the Appeals Council denied Lewis's request for review on March 21, 2017. (R. at 1-6.) Lewis filed this lawsuit on May 17, 2017, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Compl., ECF No. 3.) Lewis contends that the ALJ erroneously failed to assign controlling weight to the opinion of Dr. Ko and that the ALJ's RFC assessment was not supported by substantial evidence. See (Compl. at 1-2; Pl.'s Br. at 8, ECF No. 10).

         On March 6, 2018, Judge Perkm issued his R & R. (ECF No. 14.) He rejected Lewis's first argument, finding the ALJ did not err in declining to assign controlling weight to Dr. Ko's opinion. (Id. at 10.) Neither Lewis nor, of course, the Commissioner, objected to this finding.[2] Judge Perkm, however, agreed with Lewis that the ALJ's RFC assessment was not supported by substantial evidence because "[t]here was no opinion in the record used by the ALJ in establishing Plaintiffs physical exertional capacity." (Id.) The Commissioner objected to this conclusion and the Court reviews de novo the specific portions of the R & R to which the Commissioner objects. See 28 U.S.C. § 636(b)(1); see also Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).


         The Court's role on review is to determine whether the ALJ's conclusions were supported by substantial evidence. 42 U.S.C. § 405(g); see also Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence is evidence which a "reasonable mind might accept as adequate to support a conclusion." Rutherford, 399 F.3d at 552 (internal quotation marks and citation omitted). "It is 'more than a mere scintilla but may be somewhat less than a preponderance of the evidence.'" Id. (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)).

         In reviewing the ALJ's decision, the Court is not permitted to re-weigh the evidence or substitute its own conclusions for those reached by the ALJ. Chandler, 667 F.3d at 359 (citation omitted). "The ALJ resolves conflicts in the evidence, determines the evidence's credibility, and assigns the appropriate weight to be given such evidence." D'angelo v. Calvin, No. 14-6594, 2016 WL 930690, at *2 (E.D. Pa. Mar. 11, 2016) (citing Hummer v. Apfel,186 F.3d 422, 429 (3d Cir. 1999); Mason,994 F.2d 1066). "If the ALJ's decision is supported by substantial evidence, the Court may not set it aside even if the Court would have decided the ...

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