TOWSON v. ASTRUE, No. 2:2011cv01146 - Document 16 (W.D. Pa. 2012)
Court Description: MEMORANDUM JUDGMENT ORDER denying 12 Plaintiff's Motion for Summary Judgment and granting 14 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/12/12. (gpr)
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TOWSON v. ASTRUE Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA SAMUEL ROBERT TOWSON, Plaintiff, v. Civil Action No. 11-1146 MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this I;;~day of September, 2012, upon due consideration of the parties' cross-motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner of Social Security ("Commissioner" ) denying plaintiff's applications for disability insurance benefits and supplemental security income under Titles II and XVI, respectively, of the Social Security Act ("Act"), IT IS ORDERED that the Commissioner's motion for summary judgment (Document No. 14) be, and the same hereby is, granted and plaintiff's motion for summary judgment (Document No. 12) be, and the same hereby is, denied. As the factfinder, an Administrative Law Judge (IIALJ") has an obligation to weigh all of the facts and evidence of record and may rej ect or discount reasons for doing so. ~A072 Cir. 1999). any evidence if the ALJ explains the Plummer v. Apfel, 186 F.3d 422, 429 (3d Importantly, where the ALJ's findings of fact are (Rev. 8/82) Dockets.Justia.com supported by substantial evidence, a reviewing court is bound by those findings! even if it would have decided the factual inquiry differently. 2001). Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. These well-established principles preclude a reversal or remand of the ALJ I substantial S decision here because the record contains evidence to support the ALJ's findings and conclusions. Plaintiff protectively filed his pending applications 1 for disability insurance benefits and supplemental security income on November 25, 2008, alleging a disability onset date of March 2, 2007! due chronic to chronic bronchitis! obstructive emphysema pulmonary and restless Plaintiff's applications were denied initially. hearing held on August 17, 2010, disease leg syndrome. Following a video an ALJ issued a decision on December 8, 2010, finding that plaintiff is not disabled. 20, 2011, ("COPD"), On July the Appeals Council denied review making the ALJ's decision the final decision of the Commissioner. Plaintiff was 46 years old at the time of the ALJ's decision and is classified as a younger person under the regulations. C. F . R . § § 404 . 1563 (c) and 416. 963 (c) . He has at least a 20 high school education and has past relevant work experience as a pizza worker! security guard, tank tender and material handler, but he 1 For purposes of plaintiff's Title II application, the ALJ found that plaintiff met the disability insured status requirements of the Act on his alleged onset date and had acquired sufficient quarters of coverage to remain insured only through December 31, 2010 . Accordingly plaintiff must establish disability on or before that date to be entitled to Title II benefits. I ~A072 (Rev. 8/82) - 2 has not engaged in any substantial gainful activity since his alleged onset date. After testimony reviewing from plaintiff's plaintiff and a medical records vocational and hearing expert, the ALJ concluded that plaintiff is not disabled within the meaning of the Act. The ALJ found that although the medical evidence establishes that plaintiff suffers from the severe impairments of COPD, asthma and restless leg syndrome, those impairments, alone or in combination, do not meet or medically equal the criteria of any of the impairments listed at Appendix 1 of Subpart P. The Part 404, 15). (R. ALJ 20 C.F.R., also found that plaintiff retains the residual functional capacity to perform work at the sedentary exertional level but with a number of restrictions limiting effects of his impairments, accounting including, for the inter alia, a limitation to occupations that would permit use of a portable oxygen unit. (R. 15). A vocational expert identified numerous categories of jobs which plaintiff could perform based upon his age, education, work experience and residual functional capacity, including garment folder, telephone solicitor and receptionist. Relying on the vocational expert's testimony, the ALJ found that while plaintiff cannot perform his past relevant work, capable of making an adjustment to work significant numbers in the national economy. determined that plaintiff is not disabled. ~A072 (Rev. 8/82) - 3 which he is exists in Accordingly, the ALJ The Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental impairment which can be expected to last for a continuous period of at least twelve 1382c (a) (3) (A) . months. 42 U.S.C. §§423{d) (1) (A) and The impairment or impairments must be so severe that the claimant "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 " 42 U.S.C. §§423 (d) (1) (B) and 1382c (a) (3) (B) . The Commissioner has promulgated regulations incorporating a five-step sequential evaluation process 2 for determining whether a claimant is under a disability. 20 C. F . R . § § 404 . 1520 and 416.920j Newell v. Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). disabled at any step, If the claimant is found disabled or not the claim need not be reviewed further. Id.j see Barnhart v. Thomas, 124 S.Ct. 376 (2003). Here, plaintiff raises two challenges to the ALJ's findings: (1) the ALJ erred at step 3 by failing to consider adequately whether plaintiff's COPD, alone or in combination with his asthma, is medically equivalent to Listing 3.02Aj and, (2) the ALJ erred 2 The ALJ must determine in sequence: (1) whether the claimant currently is engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can perform any other work which exists in the national economy in light of his age, education, work experience and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920. ""A072 (Rev, 8/82) - 4 at step 5 by finding that plaintiff is able to perform sedentary work with the use of a portable oxygen unit. Upon review, the court finds that the ALJ properly evaluated the evidence and that all of the ALJ's findings are supported by substantial evidence. First, the court is satisfied that the ALJ's step 3 finding is supported by substantial evidence. determine whether equivalent to, the one of claimant's the At step 3, impairment listed the ALJ must matches, is Burnett impairments. or v. Commissioner of Social Security Administration, 220 F.3d 112, 119 (3d Cir. 2000). The listings describe impairments that prevent an adult, regardless of age, education, or work experience, from Knepp v. Apfel, 204 F.3d 78, 85 performing any gainful activity. (3d Cir. 2000) impairment claimant] 20 C.F.R. §§404.1520(d) and 416.920(d). i is is necessary." equivalent per se to a disabled listed and no impairment further "If the then analysis [the is Burnett, 220 F.3d at 119. Here, the ALJ found that plaintiff suffers from the severe impairments of COPD, asthma and restless leg syndrome and properly identified the corresponding Listings for those impairments as the Listings at 1.00, system) for Listing 3.03 et seq., restless for (impairments of the musculoskeletal leg syndrome, asthma. He then Listing 3.02 adequately for COPD and explained why plaintiff's impairments, alone or in combination, do not meet or medically equal impairments. the severity of any of (R. 15) i see Burnett, 220 F.3d at 120, n.2. ""Aon (Rev. 8/82) those relevant listed - 5 In particular, the ALJ noted that \I [plaintiff's] COPD does not meet or medically equal the criteria of listing 3.02 because his FEVI [one-second forced expiratory volume] has been over 1.25 liters .... " 3 (R. 15). As to plaintiff's asthma, the ALJ found that \lit does not meet or medically equal the criteria of listing 3.03 because there is no medical evidence of (A) chronic asthmatic bronchitis or (B) attacks, in spite of prescribed treatment and requiring physical intervention, occurring at least once every 2 months or at least six times a year." (R.15). Plaintiff does not dispute the ALJ's finding that his COPD does not meet the listing at 3.02A. Instead, plaintiff contends that the ALJ did not adequately consider whether plaintiff's COPD, alone or in combination with his asthma, medically equals the Listing at 3.02A,4 and he seeks a remand in order for the ALJ to further develop the record as to medical equivalence. 3 The criteria for meeting Listing 3.02A are: "chronic pulmonary obstructive disease, due to any cause, with the FEVI equal to or less than the values specified in table I corresponding to the person's height without shoes." Plaintiff's height without shoes has been documented as 64" (R. 317) or 65" (R. 423; 449). According to table I, in order to meet listing 3.02A, an individual who is 64-65 inches tall without shoes must have an FEVI equal to or less than 1.25 L., BTPS (liters, body temperature and pressure saturated with water vapor). Here, the record contains the results of numerous pulmonary function studies, with the lowest FEVI result recorded as 1.36 L, BTPS. 4 The ALJ also found that plaintiff does not meet Listing 3.02B (chronic restrictive ventilatory disease) because his \lFVC [forced vital capacity] has been over 1.45 [L, BTPS]. II Plaintiff has raised no challenge to the ALJ's finding that plaintiff does not meet or medically equal Listing 3.02B. Nor does he contest the ALJ,s findings that his asthma does not meet or medically equal Listing 3.03, and that his restless leg syndrome does not meet or medically equal any of the listings at 1.00, et seq., for impairments of the musculoskeletal system. ~A072 (Rev. 8/82) - 6 Under the regulations, an impairment is medically equivalent to a listed impairment nif it is at least equal in severity and duration to the criteria of any listed impairment." §§404.1526{a) and 416.926{a). described in the listings If a claimant has an impairment and exhibits specified in the particular listing, findings is not as severe 20 C.F.R. as all of the findings but one or more of specified in the listing, the the claimant's impairment will be found to be medically equivalent to the listing nif [the claimant] has other findings related to [the] impairment that are at least of equal medical significance to the required criteria." 20 C.F.R. §§404.1526{b) (I) and416.926{b) (1). Medical equivalence impairments, related to also can be found for a no one of which meets a listing{ the claimant's impairments are at combination of if the findings least of medical significance to those of a listed impairment. equal 20 C.F.R. § § 4 04 . 1526 (b) (3) and 4 16 . 92 6 (b) (3) . Medical equivalence is to be determined by considering "all evidence in your case record about your impairment(s) effects on you that is relevant to this finding." §§404.1526(c) Significantly, and 416.926(c). the and its 20 C.F.R. regulations explicitly provide that the ALJ is to consider the opinion on equivalence given Commissioner. by medical consultants by the The ultimate responsibility for deciding medical equivalence rests with the ALJ. and 416.926{e). ~A072 (Rev. 8/82) designated - 7 20 C.F.R. §§404.1526(e) Here, the ALJ explicitly found that plaintiff does not have an impairment, or combination of impairments, equals any of the Listed impairments. (R. 15). that medically In reaching this conclusion, the ALJ stated that he evaluated "medical and other evidence pertaining to [plaintiff's] medically determinable impairments" and the record makes clear that he did just that. Significantly, plaintiff's no medical source of record suggested that impairments, alone or in combination, are medically equivalent to any listed impairment, and the state agency reviewer concluded that plaintiff does listing. not meet or medically equal a (R.321-27). Although plaintiff contends that the ALJ failed to comply with the standards of Burnett in setting forth the reasons for his finding, "Burnett does not require the ALJ to use particular language or adhere analysis. is to a particular format in conducting his Rather, the function of Burnett is to ensure that there sufficient development of the record findings to permit meaningful review." and explanation of Jones v. Barnhart, 364 F.3d SOl, 505 (3d Cir. 2004). Here, as already noted, the ALJ identified the relevant listed impairments and discussed all of the medical evidence and concluded that the findings related to plaintiff's impairments, alone or in combination, are not of equal medical significance to any listed impairment. {R. 15-17). The fact that the ALJ discussed the medical evidence in detail in his discussion of residual functional capacity, instead of including that discussion ~A072 (Rev. 8/82) - 8 twice, does not run afoul of Burnett. See Cop v. Commissioner of Social Security, 226 Fed. Appx. 203, 208 (3d Cir. 2007). The regulations require that a finding of medical equivalence be supported by "findings related to our impairment that are at least of equal medical significance to the required criteria." 20 C. F .R. §§404 .1526 (b) (1) (ii) added) . Here, plaintiff presenting any findings of has and 416.926 (b) (1) (ii). failed to equal medical meet his (emphasis burden of significance to the criteria of Listing 3. 02A, and the medical evidence of record does not support such a finding. See Hollis v. Commissioner of Social Security, 116 Fed. Appx. 396, 398 (3d Cir. 2004). The court is satisfied that the ALJ's step 3 finding that plaintiff's COPD, alone or in combination with his asthma, does not medically equal Listing 3.02A, is supported by substantial evidence. Plaintiff's determination5 remaining argument that plaintiff is that can perform a the ALJ's limited step 5 range of sedentary work with the use of a portable oxygen tank is not supported by substantial evidence. Specifically, plaintiff contends that the ALJ' s conclusion that plaintiff can perform work with a portable oxygen tank is not supportable because the vocational expert testified that all work would be precluded if .....A072 (Rev. 8/82) 5 At step 5, the ALJ must show that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with his medical impairments, age, education, past work experience and residual functional capacity. 20 C.F.R. §§404.1520(f) and 416.920(f). Residual functional capacity is defined as that which an individual still is able to do despite the limitations caused by his impairments. 20 C.F.R. §§404.1545(a) and 416.945(a)i Fargnoli, 247 F.3d at 40 . - 9 the use of the oxygen equipment would interfere with production standards (R. 65), i.e., would result in the individual being offtask greater than 10% of the time (R. 66-67), and further testified that he could not discern whether plaintiff's need for a portable oxygen unit would interfere with his productivity to that extent. (R. 67). Plaintiff's argument is unpersuasive. Although the vocational expert testified that he could not determine whether plaintiff would be off-task greater than 10% of the time because of his portable oxygen unit, it vocational expert's task to make that determination. extent is not the Rather, the to which an individual would be off-task is an issue relating to that individual's residual functional capacity, and the responsibility for assessing residual functional capacity lies solely with the ALJ. Here, 20 C.F.R. §§404.1526{c) and 416.926(c). the ALJ did not incorporate a limitation into his residual functional capacity finding that plaintiff would be offtask greater than 10% of the time due to the use of a portable oxygen unit and the record does not support such a limitation. None of plaintiff's treating or reviewing physicians indicated that plaintiff's use of a portable oxygen unit would put him off task during the work day. To the contrary, Dr. Edde, plaintiff's treating pulmonologist, explicitly stated that plaintiff had "no need for 02 during the day," (R. 412), and the state agency physician also noted "no medical evidence of need for 02 24/7" (R. 326) . Plaintiff also indicated at the hearing that he uses his oxygen at night and during the day "as needed." ~A072 (Rev. 8/82) - 10 (R. 19). As there is no evidence in the record that plaintiff's use of a portable oxygen unit would interfere with his ability to meet productivity standards during a work-day, the ALJ did not err by not including in his residual functional capacity a limitation that plaintiff would be off-task greater than 10% of the time because of his use of a portable oxygen unit. Likewise, he did not err in rejecting the vocational expert's response that an individual who would be off-task greater than 10% of the work day because of a portable oxygen unit would be precluded from work. A hypothetical to the vocational expert must reflect only those impairments Podedworny v. and Harris, limitations 745 supported F.2d 210 (3d Cir. by the 1984), record, and the additional limitation advanced by plaintiff is supported neither by the objective activities. medical Accordingly, evidence nor by plaintiff's the vocational expert's response to plaintiff's hypothetical properly was disregarded. Barnhart, 364 F.3d SOl, 506 (3d Cir. 2004) disregard vocational that plaintiff Instead, can perform See Jones v. (ALJ has authority to response expert's inconsistent with evidence). testimony daily to hypothetical the vocational expert's the jobs that he had identified "so long as the use of a portable oxygen tank does not interfere with accepted levels of productivity," constitutes substantial evidence supporting the ALJ's step 5 finding that plaintiff retains the ability to perform significant numbers in the national economy. ~A072 (Rev, 8/82) - 11 work existing in After carefully and methodically considering all medical evidence of record and plaintiff s I testimony I of the the ALJ determined that plaintiff is not disabled within the meaning of the Act. The ALJ/s findings and conclusions are supported by substantial evidence and are not otherwise erroneous. AccordinglYI the decision of the Commissioner must be affirmed. ~~ Gustave Diamond United States District Judge cc: Gregory T. Kunkel Esq. Kunkel & Finkl LLP Brentwood Professional Bldg. 4411 Stilley Road, Suite 206 Pittsburgh, PA 15227 I Paul Kovac Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 'Il>.A072 (Rev. 8/82) - 12
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