Summary
holding that consideration of the exertional factors is enough for the purposes of SSR 96-8p
Summary of this case from Lane-Rauth v. BarnhartOpinion
Civil Action No. 03-294.
May 28, 2004
MEMORANDUM ORDER
Presently before the Court are the cross Motions for Summary Judgment of Claimant, Deborah K. Rinker, and Defendant, Commissioner of Social Security Jo Anne Barnhart. (Doc. Nos. 5, 6.) This matter was referred to Magistrate Judge James R. Melinson. After careful review of the entire record, including the Report and Recommendation (Doc No. 9), and Claimant's Exceptions to the Report and Recommendation of the Magistrate Judge (Doc. No. 10), we will overrule Claimant's exceptions, deny Claimant's Motion for Summary Judgment, and grant Defendant's Motion for Summary Judgment.
The Court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which the Plaintiff has objected. 28 U.S.C. § 636(b)(1). As Plaintiff has objected to almost the entire Report and Recommendation we will review the entire claim.
On May 31, 2001, Claimant applied for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. After the state agency denied Claimant's application, she requested an administrative hearing. The hearing was held on April 3, 2002. The administrative law judge ("ALJ") found that Claimant was not disabled because her medical impairments did not preclude her from performing past relevant work. The Appeals Council then denied Claimant's request for review of the decision. Pursuant to 42 U.S.C. § 405(g), Claimant filed this Complaint seeking review of the decision of the ALJ. Subsequently, Claimant and the Commissioner of Social Security ("Commissioner") filed motions for summary judgment. The matter was referred to Magistrate Judge Melinson pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1(d)(1)(C). Magistrate Judge Melinson filed a Report and Recommendation recommending that we affirm the decision of the ALJ.
Claimant was fifty-one years old when the ALJ denied her request for benefits. (Tr. at 16.) She graduated high school and attended college for one year. ( Id.) In her application for DIB, Claimant cites multiple impairments, which have allegedly disabled her since December 31, 1996. These include muscular damage resulting from previous radiation therapy causing inflammation of the nerve endings in the neck, spine, and back, fibromyalgia, cervical cancer, and scoliosis. ( Id. at 102, 117.)
The ALJ concluded that based on the medical records of Claimant's physicians, only Claimant's fibromyalgia "has had more than a minimal impact upon the claimant's ability to engage in work activities, and is, therefore, severe." ( Id. at 21.) In addition, the ALJ determined that none of the other problems of which Claimant complained, "meet or equal the criteria of any of the impairments listed in [ 20 C.F.R. Pt. 404, Subpt. P., App. 1]." ( Id.) A vocational expert ("VE"), testified that Claimant's prior work as a clerk and counter attendant was respectively, "semiskilled and light" and "light and unskilled." ( Id. at 21.) Based on these considerations, the ALJ ultimately concluded that Claimant is not disabled and is capable of returning to past relevant work.
II. Standard of Review
The role of this Court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's final decision. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). The factual findings of the Commissioner must be accepted as conclusive, provided that they are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971) (citing 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Dobrwolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). If the conclusion of the ALJ is supported by substantial evidence, this Court may not set aside the Commissioner's decision even if we would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); see 42 U.S.C. § 405(g).
III. Disability Standard
Title II of the Social Security Act, provides for the payment of insurance benefits to persons who suffer from a disability. 42 U.S.C. § 423(a)(1)(D). "Disability" is defined as 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 [twelve] months." 42 U.S.C. § 423(d)(1)(A). To qualify for disability benefits, therefore, a claimant must establish that "she is unable 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." Morales v. Apfel, 225 F.3d 310, 315-16 (3d Cir. 2000) (internal quotation omitted). A claimant can establish such a disability in either of two ways: (1) by producing medical evidence that she is disabled per se as a result of meeting or equaling certain listed impairments set forth in 20 C.F.R. Pt. 404, Subpt. P., App. 1; or (2) by demonstrating impairment of such severity as to be unable to engage in any kind of substantial gainful work that exists in the national economy. Heckler v. Campbell, 461 U.S. 458, 460 (1983); 42 U.S.C. § 423(d)(2)(A). The burden of proving disability rests with the claimant. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 120 n. 2 (3d Cir. 2000); Schwartz v. Halter, 134 F. Supp. 2d. 640, 656 (E.D. Pa. 2001).
Pursuant to 20 C.F.R. § 404.1520(a)(4), when deciding the merits of a disability claim the ALJ applies a five-part inquiry to determine whether the claimant is entitled to disability benefits. Step one involves determining whether the claimant is currently engaged in any substantial gainful activity. An individual who is working will not be found to be disabled regardless of medical findings. 20 C.F.R. § 404.1520(a)(4)(1). Step two involves evaluating the severity of claimant's alleged impairments. 20 C.F.R. 404.1520(a)(4)(ii). Step three requires determining whether the claimant has an impairment or combination of impairments that meets or equals a listed impairment in 20 C.F.R. Pt. 404, Subpt. P., App. 1. 20 C.F.R. § 404.1520(a)(4)(iii). Step four involves determining whether the claimant is capable of performing past relevant work. Considering claimant's residual functional capacity ("RFC"), if claimant is capable of performing past relevant work, claimant will not be found disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, at step five, if the ALJ determines that claimant cannot perform past relevant work, the ALJ considers the assessment of claimant's RFC and claimant's age, education, and work experience to see if claimant can make an adjustment to other work in the national economy. If it is found that claimant can make an adjustment to other work, the ALJ will find that claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v).
IV. Review of the ALJ's Decision
Claimant contends that the decision of the ALJ was erroneous because: (1) substantial evidence supports the conclusion that Claimant is disabled; (2) fibromyalgia is not Claimant's only severe impairment; (3) the ALJ did not give sufficient weight to the assessment of treating physicians; (4) the ALJ unfairly rejected Claimant's testimony; and (5) the ALJ failed to provide a function-by-function analysis of what Claimant is capable of doing despite her impairments. Each of these arguments will be addressed in turn.
a. Substantial evidence supports the ALJ's decision.
Claimant first argues that the evidence in this case does not support the ALJ's findings. Evidence to be considered by an ALJ includes medical and vocational information, testimony from the hearing, and other evidence that would be useful in helping to make this determination. Cotter v. Harris, 642 F.2d 700, 705-06 (3d Cir. 1981). In deciding that Claimant was not disabled, the ALJ considered Claimant's complete medical records, testimony from the VE, and testimony from Claimant. (Tr. at 17-20.)
The ALJ considered the evidence submitted by the physicians who treated Claimant's various ailments. The record consists of medical treatment from Dr. Marcincin, Dr. Von Kiel, Dr. Labarre, Dr. Kramer, Dr. Sciascia, Dr. Brndjar, and Dr. Hughes. Specifically, the ALJ considered the medical reports related to Claimant's problem with her back. ( Id. at 17.) Marcincin's notes show that Claimant's left lumbar laminotomy surgery was a success and Claimant's condition greatly improved. ( Id. at 171.) Whereas before the surgery, Claimant was largely confined to her home, after the surgery Marcincin noted that the leg pain was gone and the Claimant could almost walk normally at the time of discharge. ( Id.) In Marcincin's letter to Dr. Von Kiel on September 7, 2000, he notes that "all neurological functions are normal. . . . I am very pleased with patient's status. . . . I completely liberalized her activities, but still cautioned against heavy lifting and overexertion in the months ahead." ( Id. at 177.)
The ALJ also considered Claimant's treatment records related to her endometrial carcinoma. As a result of this condition, Claimant underwent a "total abdominal hysterectomy and extensive lysis of adhesions, pelvic lymphadenectomy . . ." (Tr. at 181.) There were no complications related to this procedure and Claimant was discharged a few days after surgery in stable condition. ( Id.)
In addition to the records related to specific physical problems, the ALJ considered Claimant's routine medical records from periodic checkups with Von Kiel and Brndjar. ( Id. at 18, 19.) The ALJ found that the notes from these checkups are "largely unremarkable," a conclusion with which we agree. In addition, the ALJ utilized the one-time gastrointestinal report of Lukaszcyk and the "ob-gyn records" of Sciasia. ( Id.)
The ALJ considered Claimant's three RFC assessments. The first RFC assessment was conducted by Dr. Wiseman and Dr. Wander, in August, 2001, pursuant to Claimant's application for DIB. Wiseman's conclusion regarding Claimant's ability to function was that "[t]he patient had normal bending, sitting and standing, lifting and grasping." (Tr. at 230.) The RFC assessment was completed by Wander six days after the examination by Wiseman. Wander concluded that "[Claimant's] activities are not severely limited[;] symptoms are factually credible." ( Id. at 237.)
Wander did not personally evaluate Claimant. Rather, the RFC is based on the evidence in claimant's file at the time. (Tr. at 232.)
Claimant underwent a second RFC assessment by Dr. Sciascia on March 22, 2002. Sciascia determined that Claimant suffered "exertional limitations" that affected lifting/carrying, standing/walking, and sitting. ( Id. at 289-90.) Sciascia also determined that Claimant had occasional "postural" limitations but almost no other limitations of any kind. ( Id. at 290-91.) Claimant underwent a third RFC assessment by Von Kiel on April 25, 2002. Von Kiel determined that Claimant suffered exertional limitations that affected lifting/carrying, standing/walking, sitting, and pushing/pulling. ( Id. at 240-41.) Von Kiel also determined that Claimant had significant postural, manipulative, and environmental limitations. ( Id. at 241-42.)
Sciascia determined that Claimant could occasionally carry less than ten pounds; frequently lift and carry less than ten pounds; could stand or walk less than two hours in an eight-hour day; and must periodically alternate between sitting and standing to relieve pain or discomfort. (Tr. at 289-90.)
Von Kiel determined that Claimant could occasionally carry ten pounds; could frequently carry less than ten pounds; could stand or walk less than two hours in an eight-hour workday; must periodically alternate sitting and standing to relieve pain or discomfort; and was limited in the upper and lower extremities in terms of pushing and pulling. (Tr. at 240-41.)
The ALJ properly considered the testimony of the VE. In determining the effect of the RFC assessments on potential jobs for Claimant, the ALJ questioned the VE concerning whether jobs exist that would satisfy the limitations described in the RFC assessments. ( Id. at 87.) The VE testified that there were positions available in the area that would be suitable for Claimant. ( Id.) Based on this testimony, the ALJ determined that the "[t]he claimant retains the residual functional capacity to perform the exertional demands of light work without restriction. . . . The claimant has performed past relevant work as a salesclerk (semiskilled and light), and counter attendant (light and unskilled)." ( Id. at 21.)
The VE responded that:
there are assembly positions. Approximately 2000 in the AB, the Allentown, Bethlehem, Easton area, 400000 nationally. Ther're [sic] some inspecting positions. Approximately 400 in this region, 35000 nationally. And some office clerical positions. Mailroom [sic] clerk, things like that, where they're sitting most of the time, but there might be some heavier packages. So, it's a limited range of these types of position. I would say 1 to 2000 in the region. Approximately 100000 in the nation."
(Tr. at 87.)
b. The ALJ gave appropriate weight to the reports of Claimant's treating physicians.
Claimant argues that the ALJ did not give sufficient weight to the reports of Claimant's treating physicians. In general, great weight should be given to the findings and opinions of treating physicians. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Mason v. Shalala, 994 F.2d 1058, 1067 (3d cir. 1993). However, the ALJ is not required to give significant weight to the report of the treating physician and may reject that analysis where there is a lack of data supporting that analysis, Newhouse, 753 F.2d at 286, or where there is contrary medical evidence, Frankenfield v. Bowen, 861 F.2d 805 (3d Cir. 1988). In this case, Claimant argues that greater weight should be given to the RFC assessments of Sciascia and Von Kiel. In forming her opinion, the ALJ gave little weight to Sciascia's assessment because it conflicted with Claimant's cardiology report. The ALJ found that, "Dr. Sciascia's cardiac-related observation must yield to cardiology records which show normal test results, with [C]laimant categorized as a `class I' cardiac patient (indicating a level of impairment which would certainly not rule out sedentary and light work)." (Tr. at 18.)
The ALJ also noted that "there is nothing in Dr. Sciascia's treatment records which reflects that [C]laimant had not fully recovered from her stage 1 endometrial cancer a full year later when Dr. Sciascia completed the checklist assessment form, given the completely unremarkable checkup reported a half-year before in September, 2001." (Tr. at 18.)
The ALJ also accorded little weight to the opinion of Von Kiel because his assessment of Claimant's restrictions conflicted with his prior assessments of Claimant's health. The ALJ determined that "Von Kiel's checklist physical capacity form . . . which is accompanied by his extremely routine treatment records . . . reports that his assessment is supported by `observation, prior exam, knowing patient for years, along with subjective input. . . .'" ( Id. 18, 241.) Further, in assessing Von Kiel's report the ALJ determined that "its restrictions are extreme in view of the routine, conservative treatment by Dr. Von Kiel. There is no indication in his records that he regarded claimant as a candidate for disability until she raised the issue with him at her annual check-up in May, 2001, the month she filed this claim." ( Id. at 18.) The ALJ's reasons for giving less weight to Drs Sciascia and Von Kiel are supported in the record. c. The ALJ gave proper weight to Claimant's testimony.
Claimant contends that the ALJ did not adequately present other medical evidence to refute the reports of Claimant's treating physicians. (Doc. No. 10 at 2.) In addition, Claimant contends that the Report and Recommendation misapplied the laws pertaining to the weight to be given to the analysis of treating physicians. ( Id.) The ALJ adequately presented the reasons for giving less weight to these reports. The argument pertaining to the Report and Recommendation is without merit.
Claimant argues that the ALJ unfairly rejected the credibility of Claimant's testimony. In assessing Claimant's testimony, the ALJ acknowledged that "[C]laimant demonstrates some degree of limitation and is based on the documented medical treatment required, the reports of the treating and examining practitioners, the medical history and the findings made on examination; and the [C]laimant's credible assertions concerning her ability to work, and the [C]laimant's credible description of her activities and lifestyle." ( Id.) However, the Claimant's testimony that she is seriously impaired because of her past medical ailments was not accepted completely by the ALJ because she determined that Claimant's testimony concerning her daily routine was inconsistent with the testimony of disability. ( Id. at 20.) The ALJ stated that "Claimant appears to be a sincere individual who honestly believes that she cannot work full-time. However, note is made that well before she alleges disability, she did not have a stellar work record, and there is admission that she helped her husband with his business until he retired early in 2001." ( Id.)
Claimant testified that she "cannot work because of severe, chronic fatigue, migraines, and pain." (Tr. at 19.) Claimant testified that despite her impairments she is still able to: teach Sunday school every week and play guitar for youth services and special occasions; do light cleaning, shop, do laundry, go to appointments, pay bills; and, cut the grass on a one-acre lot on a riding mower (before the family moved in November, 2001). ( Id. at 20.)
The ALJ gave appropriate weight to Claimant's testimony. Although the ALJ is required to give great weight to the testimony of subjective complaints, the ALJ may reject such testimony if he or she provides reasoning for such a conclusion. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974) ("As fact finder he has the right to reject their testimony entirely, but failure to indicate rejection could lead to a conclusion that he neglected to consider it at all."). In this instance, the ALJ noted that the Claimant's testimony concerning the effects of her impairments was at odds with her testimony about her daily life activities. Claimant argues that the "pattern of lifestyle [noted by the ALJ] does not equivocate [sic] with the ability to sustain a work routine and to conclude otherwise is against the regulations propounded by SSA." (Doc. No. 5 at 29.) While we agree with Claimant that being able to do certain daily activities does not compel the conclusion that Claimant is not disabled, we find the ALJ's reasons for not fully accepting the testimony of Claimant are supported in the record. See Durham v. Barnhart, No. Civ.A. 03-140, 2004 WL 633251, at *7 (D. Del. March 26, 2004).
d. The ALJ did not err in concluding that the only severe impairment is fibromyalgia.
At step two, the ALJ determined that Claimant's fibromyalgia was a severe impairment. Claimant contends that the ALJ erred in concluding that fibromyalgia was Claimant's only severe impairment. The ALJ's conclusion regarding Claimant's fibromyalgia was based on medical records indicating that Claimant "has been subject to mild to moderate symptoms of musculoskeletal impairment [(fibromyalgia)] with the necessity for renewal of prescriptions as appropriate." (Tr. at 19.) To be classified as severe, an impairment must last twelve months. 20 C.F.R. § 404.1509. The ALJ determined that Claimant's fibromyalgia satisfied the duration requirement and had "more than a minimal impact upon the claimant's ability to engage in work activities," such that it satisfied 20 C.F.R. § 404.1520(c). However, to find that an individual is disabled by a condition, the condition must also be found listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1. 20 C.F.R. § 1520(a)(4)(iii). The evidence in the record supports the ALJ's conclusion that none of Claimant's other ailments were severe, because they did not last longer than twelve-months in duration. The medical evidence cited by the ALJ also supports the conclusion that at step three in the evaluation process, even Claimant's severe impairment did not meet one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P., App. 1.
Claimant contends that "[i]n determining whether an impairment is `severe,' it is not necessary to limit consideration to whether a particular ailment lasts [twelve] 12 months, or is expected to last that period. A `severe' impairment can be shorter in duration, and a person can be disabled from a combination of impairments which are successive in their impact upon work abilities." (Doc. No. 5 at 19.) Claimant provides no support for this contention and we can find no statute or regulation to support such an argument.
Claimant contends that the decision of the ALJ and the Report Recommendation fail to accurately apply the Third Circuit's holding in Bailey v. Sullivan, that the social security regulations allow multiple impairments to be considered in combination in assessing severity. 885 F.2d 52, 61 (3d Cir. 1990). This contention is without merit. The ALJ determined that "Claimant has demonstrated no other severe impairment nor impairments which meet or equals the criteria of any of the impairments listed in [ 20 C.F.R. Pt. 404, Subpt. P., App. 1]." (Tr. at 21.) This statement illustrates that the ALJ considered the combined effect of the impairments, pursuant to 20 CFR § 404.1520. In addition, Claimant later argues that the ALJ's report does not comply with SSR 96-8p because the analysis "does not comply with the requirements of specificity and do not fully consider all of the impairments." (Doc. No. 5 at 27.) "By its own terms, SSR 96-8p `clarifies' the term `Residual Functional Capacity' (`RFC'), which is implicated at steps 4 and 5 of the disability determination, and `discusses the elements considered in the [RFC] assessment.'" Ramirez v. Barnhart, 268 F.Supp.2d 484, 488 (E.D.Pa. 2003). There are no additional requirements in SSR 96-8p, other than those already contained in 20 CFR § 404.1545. See Adams v. Barnhart, No. Civ. A. 02-2365, 2004 WL 632704, at *1 (E.D. Pa. Jan. 29, 2004) ("SSR 96-8p lays out the requirements for the RFC assessment: `[it] must first identify the individual's functional limitations and restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c) and (d) of 20 CFR 404.1545 and 416.945.'"). While we agree that the ALJ did not explicitly analyze each work related activity and the degree of Claimant's limitation, the ALJ's consideration of Claimant's exertional impairments was sufficient to satisfy the requirements of SSR 96-8p and the regulations. The record supports the ALJ's findings that Claimant's impairments did not rise to the level necessary to establish a disability.
V. Conclusion
Careful and independent consideration of the record, including an eight-page comprehensive decision of the ALJ (Tr. at 15-22), reveals that the correct legal standards were applied in this matter and that the record as a whole contains substantial evidence to support the findings of fact and conclusions of law of the ALJ.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of May, 2004, upon consideration of the cross Motions for Summary Judgment, (Doc. Nos. 5, 6), the Report and Recommendation of Magistrate Judge James R. Melinson, (Doc. No. 9), Plaintiff's Exceptions to Report and Recommendations of the Magistrate Judge, (Doc. No. 10), and all papers filed in support thereof and opposition thereto, it is ORDERED that:
1. Plaintiff's Exceptions to the Report and Recommendation are OVERRULED;
2. The Report and Recommendation is APPROVED and ADOPTED;
3. Plaintiff's Motion for Summary Judgment, (Doc. No. 5), is DENIED; and
4. Defendant's Motion for Summary Judgment, (Doc. No. 6), is GRANTED.
IT IS SO ORDERED.