United States District Court, M.D. Pennsylvania, Williamsport
MICHELLE K. CRONE, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
B. COHN, UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned United States Magistrate
Judge for a report and recommendation. Michelle K. Crone
(“Plaintiff”), seeks judicial review of the
Commissioner of the Social Security Administration's
decision finding of not disabled. As set forth below, the
undersigned recommends to DENY
Plaintiff's appeal and AFFIRM the
Commissioner's decision in this case.
STANDARD OF REVIEW
receive disability or supplemental security benefits under
the Social Security Act (“Act”), a claimant bears
the burden to 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); accord
42 U.S.C. § 1382c(a)(3)(A).
further provides that an individual:
shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such
severity 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), 1382c(a)(3)(B).
Plaintiff must demonstrate the physical or mental impairment
“by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§
Security regulations implement a five-step sequential process
to evaluate a disability claim. 20 C.F.R. §§
404.1520, 416.920. The process requires an Administrative Law
Judge (“ALJ”) to decide whether an applicant (1)
is engaged in “substantial gainful activity;” (2)
suffers from a “severe medically determinable physical
or mental impairment;” (3) suffers from “an
impairment(s) that meets or equals one” listed in the
regulation's appendix; (4) has a residual functional
capacity (“RFC”) allowing for performance of
“past relevant work;” and (5) can “make an
adjustment to other work.” Rutherford v.
Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
any of the steps a determination exists that a plaintiff is
or is not disabled, evaluation under a subsequent step is not
necessary. 20 C.F.R. § 404.1520(a)(4). The claimant
bears the burden of proof at steps one through four. See
Rutherford, 399 F.3d at 551. If the claimant satisfies
this burden, then the Commissioner must show at step five
that jobs exist in the national economy that a person with
the claimant's abilities, age, education, and work
experience can perform. Id.
reviewing a decision of the Commissioner, the Court is
limited to determining whether the Commissioner has applied
the correct legal standards and whether the decision is
supported by substantial evidence. See e.g., 42
U.S.C. § 405(g) (“Court shall review only the
question of conformity with such regulations and the validity
of such regulations”). Substantial evidence is a
deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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, 565 (1988) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); see also Johnson v.
Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir.
2008). 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,
Court may neither re-weigh the evidence nor substitute its
judgment for that of the fact-finder. Rutherford,
399 F.3d at 552. The Court will not set the
Commissioner's decision aside if it is supported by
substantial evidence, even if the Court would have decided
the factual inquiry differently. Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. §
April 2015, Plaintiff filed an application for Disability
Insurance Benefits (“DIB”) pursuant to Title II
of the Act, alleging disability since April 24, 2012, due to
degenerative disc disease, osteoarthritis, fibromyalgia,
carpal tunnel syndrome, spinal stenosis, obesity, diabetes,
gastritis, gastroesophageal reflux disease (GERD),
hypertension, hyperlipidemia, deep vein thrombosis (DVT),
cardiovascular disorder, depression, and anxiety. (Tr.
155-61) (Pl. Br. at 2-3) (Doc. 10). In March 2017, an ALJ
held a hearing where Plaintiff, represented by counsel, and a
Vocational Expert (“VE”) testified. (Tr. 34-63).
On July 7, 2017, the ALJ issued a decision finding Plaintiff
not disabled. (Tr. 19-30). In June 2018, the Appeals Council
denied Plaintiff's request for review, (Tr. 1-6) making
the ALJ's decision the Commissioner's final decision
for purposes of judicial review. See 20 C.F.R.
§§ 416.1481; 422.210(a). This action followed.
ISSUES AND ANALYSIS
appeal, Plaintiff alleges the following errors: (1) The ALJ
failed to properly assess the medical evidence; (2) The ALJ
failed to properly assess Plaintiff's fibromyalgia; (3)
The ALJ failed to properly assess Plaintiff's severe
impairments; (4) The ALJ failed to properly analyze the
vocational evidence; and (5) The ALJ failed to properly
assess Plaintiff's credibility regarding her complaints
of chronic pain. (Pl. Br. at 5-6).
RFC and Impairments
contends the ALJ failed to properly assess Plaintiff's
fifteen impairments, particularly fibromyalgia and obesity.
(Pl. Br. at 7-10). In the decision, the ALJ reviewed the
record to evaluate Plaintiff's impairments prior to
formulating the RFC, as discussed below. (Tr. 21, 24-27).
From the record, the ALJ found Plaintiff had the RFC to
light work … except she can sit for up to four hours
total in an eight-hour workday, and stand and/or walk for up
to four hours total in an eight-hour workday. She must
alternate between sitting and standing position at will. She
can frequently push, pull, handle, finger, and feel with the
bilateral upper extremities. She can occasionally climb ramps
and stairs, but can never climb ladders, ropes, or scaffolds.
She can occasionally balance and stoop, but can never kneel,
crouch, or crawl. She cannot be exposed to unprotected
heights, but can occasionally be exposed to moving mechanical
parts. She cannot be exposed to temperature extremes or
(Tr. 24). In deciding the RFC, the ALJ gave significant
weight to the July 15, 2015 opinion of disability
determination examiner Louis, B. Bonita, M.D. (Tr. 28)
(citing Tr. 85-90). Dr. Bonita opined Plaintiff could perform
light work, with occasional climbing of ramps and stairs, but
no climbing of ladders, ropes, or scaffolds, and occasional
balancing, stooping, kneeling, crouching, and crawling. (Tr.
contends the ALJ failed to properly assess Plaintiff's
fibromyalgia impairment in compliance with Social Security
Ruling (“SSR”) 12-2p. (Pl. Br. at 7-9). SSR 12-2p
states as follows:
VI. How do we consider Fibromyalgia (“FM”) in the
sequential evaluation process? As with any adult claim for
disability benefits, we use a 5-step sequential evaluation
process to determine whether an adult with an MDI of FM is
A. At step 1, we consider the person's work activity. If
a person with FM is doing substantial gainful activity, we
find that he or she is not disabled.
B. At step 2, we consider whether the person has a
“severe” MDI(s). If we find that the person has
an MDI that could reasonably be expected to produce the pain
or other symptoms the person alleges, we will consider those
symptom(s) in deciding whether the person's impairment(s)
is severe. If the person's pain or other symptoms cause a
limitation or restriction that has more than a minimal effect
on the ability to perform basic work activities, we will find
that the person has a severe impairment(s).
C. At step 3, we consider whether the person's
impairment(s) meets or medically equals the criteria of any
of the listings in the Listing of Impairments in appendix 1,
subpart P of 20 CFR part 404 (appendix 1). FM cannot meet a
listing in appendix 1 because FM is not a listed impairment.
At step 3, therefore, we determine whether FM medically
equals a listing (for example, listing 14.09D in the listing
for inflammatory arthritis), or whether it medically equals a
listing in combination with at least one other medically
D. RFC assessment: In our regulations and SSR 96-8p, we
explain that we assess a person's RFC when the
person's impairment(s) does not meet or equal a listed
impairment. We base our RFC assessment on all relevant
evidence in the case record. We consider the effects of all
of the person's medically determinable impairments,
including impairments that are “not severe.” For
a person with FM, we will consider a longitudinal record
whenever possible because the symptoms of FM can wax and wane
so that a person may have “bad days and good
E. At steps 4 and 5, we use our RFC assessment to determine
whether the person is capable of doing any past relevant work
(step 4) or any other work that exists in significant numbers
in the national economy (step 5). If the person is able to do
any past relevant work, we find that he or she is not
disabled. If the person is not able to do any past relevant
work or does not have such work experience, we determine
whether he or she can do any other work. The usual vocational
1. Widespread pain and other symptoms associated with FM,
such as fatigue, may result in exertional limitations that
prevent a person from doing the full range of unskilled work
in one or more of the exertional categories in appendix 2 of
subpart P of part 404 (appendix 2). People with FM may also
have nonexertional physical or mental limitations because of