United States District Court, M.D. Pennsylvania
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. Jennifer Lou Smathers
(“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 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). The Act 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; Rutherford v. Barnhart, 399 F.3d
546, 551 (3d Cir. 2005). 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; 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
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 v. Barnhart, 399 F.3d 546, 551 (3d Cir.
2005). 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.
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”); Johnson v. Commissioner
of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008);
Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir.
2003) (plenary review of legal questions in social security
cases). 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)). The Court's review is based on the record, and
the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from
the [Administrative Law Judge's] findings in order to
determine if the substantiality test has been met.”
Id. Substantial evidence is a deferential standard
of review. See Jones v. Barnhart, 364 F.3d 501, 503
(3d Cir. 2004 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 v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). 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. § 405(g)).
September 29, 2014, Plaintiff filed an application for Title
XVI Supplemental Security Income (“SSI”) of the
Act, 42 U.S.C. §§ 401-433, 1382-1383, with a
disability onset date of August 1, 2011. (Tr. 25, 87).
Plaintiff alleged disability due to Crohn's disease,
hypertension, joint pain, fevers, diarrhea, anxiety, immune
system deficiency, and abdominal pain. (Tr. 87). Plaintiff
waived her right to representation. (Tr. 50-51, 75, 79-80).
Plaintiff, her mother, and her stepmother testified at the
hearing. (Tr. 47-71). On June 6, 2017, the ALJ found
Plaintiff was not disabled within the meaning of the Act.
(Tr. 22-43). Plaintiff sought review of the decision, which
the Appeals Council denied on July 11, 2018, thereby
affirming the decision of the ALJ as the “final
decision” of the Commissioner of the Social Security
Administration. (Tr. 1-6).
September 7, 2018, Plaintiff filed the above-captioned action
pursuant to 42 U.S.C. § 405(g) to appeal a decision of
Defendant denying social security benefits. (Doc. 1). On
November 9, 2018, Defendant filed an answer and an
administrative transcript of proceedings. (Doc. 4, 5). On
December 26, 2018, Plaintiff filed a brief in support of the
appeal. (Doc. 7 (“Pl. Br.”)). On January 31,
2019, Defendant filed a brief in response. (Doc. 9
appeal, Plaintiff argues the following: (1) the Social
Security Administration erred in failing to consider the
report of Dr. Komar as new and material; (2) the ALJ failed
to order an updated consultative examination of the Plaintiff
and erred in failing to obtain letters from physicians
regarding her disability; (3) the ALJ failed to challenge the
vocational expert (“VE”) concerning the reasoning
requirements of the jobs she identified as within the
residual functional capacity of the Plaintiff; and, (4) the
ALJ did not properly consider the testimony of the
Plaintiff's mother and stepmother. Pl. Br. at 8.
was born in August 1966 and thus is classified by the
regulations as a younger individual through the date of the
June 2017 ALJ decision. (Tr. 37); 20 C.F.R. §§
404.1563(c), 416.963(c). Plaintiff completed one year of
college and does not have past relevant work. (Tr. 54, 67,
argues the submission of the August 2017 opinion from Michael
Komar, M.D. (Tr. 14) warrants remand. Pl. Br. at 10-11. Dr.
Komar's August 2017 opinion came after the ALJ's June
2017 decision. The Appeals Council determined Dr. Komar's
August 2017 opinion failed to “show a reasonable
probability that it would change the outcome of the
decision” and denied review. (Tr. 1-6).
the Appeals Council denies review, evidence that was not
before the ALJ may only be used to determine whether it
provides a basis for remand under sentence six of section
405(g), 42 U.S.C. (“Sentence Six”). See
Szubak v. Secretary of Health and Human Servs., 745 F.2d
831, 833 (3d Cir. 1984). Sentence Six requires a remand when
evidence is “new” and “material, ”
but only if the claimant demonstrated “good
cause” for not having incorporated the evidence into
the administrative record. Id. The Appeals Council
requires “additional evidence that is new, material,
and relates to the period on or before the date of the
hearing decision, and there is a reasonable probability that
the additional evidence would change the outcome of the
decision.” 20 C.F.R. § 404.970(a)(5); 20 C.F.R.
§ 416.1470(a)(5) (effective January 17, 2017);
Matthews v. Apfel, 239 F.3d 592.
August 2017 opinion Dr. Komar wrote:
[Plaintiff] is a 50-year-old woman with a history of ileal
Crohn's disease, superimposed IBS, fibromyalgia, and
anxiety and depression who complains of fatigue,
listlessness, joint pain, and an irregular bowel pattern
associated with lower abdominal cramping. Her last
colonoscopy in March 2017 revealed a normal-appearing
terminal ileum with unremarkable biopsies. Her joint pain
involves her hands with morning stiffness, lower back and
hips. She has attended an intensive outpatient program for
management of her anxiety and depression, but does not sleep
well. She lives alone (although her mother lives next door)
and is dependent on her family for full financial support.
Both her mother and brother have Crohn's disease.
Her medical regimen includes Asacol HD 800 mg two daily,
Entocort 3 mg daily, gabapentin 100 mg TID (she feels foggy
and cannot concentrate), acetaminophen 325 mg PRN, and
ibuprofen 200 mg PRN (advised against).
The primary concern conveyed by [Plaintiff] and those who
care for her is her mental fogginess, chronic pain, and an
inability to work. She is slow to process information or
answer questions and doesn't want to be a hazard to
others. She needs ongoing assistance to develop coping
mechanisms to deal with stress, improve her inability, and
reduce her social phobia. Under no circumstance would she be
employable at Geisinger, and her ...