United States District Court, E.D. Pennsylvania
J. PAPPERT, JUDGE
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
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.)
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.)
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
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.)
ruled against Lewis on January 5, 2017. (R. at 29.) Applying
the five-step sequential evaluation process,  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.)
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.)
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).
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. 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).
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.
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