FABREY v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, No. 2:2010cv00703 - Document 14 (W.D. Pa. 2011)

Court Description: MEMORANDUM JUDGMENT ORDER denying 9 plaintiff's Motion for Summary Judgment and granting 11 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 9/1/11. (kw)

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FABREY v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROBERT FABREY, Plaintiff, v. Civil Action No. 10 703 MICHAEL J. AS TRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, ;¢day this of September, 2011, 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 his application for disability insurance benefits ("DIB") under Title II of the Soc Security Act ("Act") , IT IS ORDERED that the Commissioner's motion for summary judgment (Document No. 11) be, and the same hereby is, granted and plaintiff's motion for summary judgment (Document No.9) be, and the same hereby is, denied. As the factfinder, an Administrative Law Judge ("ALJ") has an obI may ion to weigh all of the reject or discount reasons for doing so. Cir. 1999). substantial "AD 72 (Rev. 8/82) findings, s and evidence of record and any evidence if Plummer v. Apfel, Where the ALJ's findings of evidence, even if it a reviewing would have court decided the ALJ explains the 186 F.3d 422, (3d t 429 are supported by is bound by the factual those inquiry Dockets.Justia.com differently. 2001). Fargnoli v. Moreover, Massanari, disability is not 247 F.3d 34, determined 38 (3d Cir. merely by the presence of impairments, but by the effect that those impairments have upon an individual's ability to perform substantial gainful activity. Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). These well-established principles preclude a reversal or remand of the ALJ's decision here because the record contains substantial evidence to support the ALJ's findings and conclusions. Plaintiff filed his DIB application on August 10, 2006, alleging disability beginning December 31, 2004, due to cervical disc disease and depression. 1 Plaintiff's application was denied. At plaintiff's request, an ALJ held a hearing on May 27, 2008. June 18, 2008, On the ALJ issued a decision finding that plaintiff was not disabled during the relevant period. The Appeals Council denied plaintiff's request for review on April 23, 2010, making the ALJ's decision the final decision of the Commissioner. The instant action followed. Plaintiff, who has a high school education, was 42 years old when his insured status expired and is classified as a younger individual Plaintiff under has the past regulations. relevant 20 C.F.R. work experience as §404.1563(c}. an assembler, IPlaintiff filed a prior DIB application on July 11, 2005, alleging disability beginning December 31, 2001. On October 6, 2005, the claim was denied at the initial determination level, and plaintiff did not further appeal that decision. Thus, the Commissioner's decision that plaintiff was not disabled from December 31, 2001, through October 6, 2005, is final. Accordingly, the relevant period in the instant case is October 7, 2005, the day after the prior denial, to December 31, 2006, the date plaintiff's insured status expired for DIB purposes. <IIlhA072 (Rev. 8/82) - 2 ­ delivery driver, medic, service parts cleaner and welder, but he did not engage substantial gainful activity at any t during the relevant period. After reviewing plaintiff's medical records and hearing testimony from plaintiff and a vocational expert at the hearing, the ALJ concluded that plaintiff was not meaning disabled within the the Act during the relevant period. Al though the medical evidence established that plaintiff suffered from the severe impairments back disorder, carpal tunnel syndrome and major depression, those impairments, alone or in combination, did not meet or equal the criteria of any of the listed impairments set forth in Appendix 1 of 20 C.F.R., Subpart P, Regulation No.4 ("Appendix 1") . The ALJ found that, during the relevant period, aintiff retained the residual functional capacity to perform light work with a number of additional limitations. Plaintiff was limited to only occasional balancing, stooping, kneeling, crouching, crawling and climbing ramps overhead work. and stairs, In addition, routine, repetitive and he was unable to perform plaintiff was limited to simple, not performed in a fast -paced production environment that involved only simple work-related decisions and relatively few work place changes. Finally, plaintiff was limited to occupations that do not involve independent decision making or close interaction with co-workers or the general public (collectively, the "RFC Finding") . Based ""'A072 (Rev. 8182) upon the vocational 3 expert's testimony, the ALJ concluded that plaintiff's age, educational background, work experience and residual functional capacity enabled him to perform work that existed in significant numbers in the national economy during the relevant period, laundry worker. Accordingly I such as a dishwasher I cleaner or the ALJ found that plaintiff was not disabled within the meaning of the Act during the relevant period. The Act fines "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 months. 42 U.S.C. §423 (d) (1) (A) . 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 economy .... " gainful work which exists in the national 42 U.S.C. §423 (d) (2) (A). The Commissioner has promulgated regulations that incorporate a five step sequential evaluation process for determining whether a claimant is disabled. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activitYi (2) if not, whether he has a severe impairment; (3) if SOt whether his impairment meets or equals the criteria listed in Appendix Ij if not, whether the claimant's impairment performing his past relevant workj and (5) prevents if so, him (4) from whether the claimant can perform any other work that exists in the national economy, in light of his age, residual functional capacity. education work experience and 20 C. F. R. §4 04.1520 (a) (4). 'IlI.AOn (Rev. 8/82) t - 4 ­ I f the claimant is found disabled or not disabled at any step, further inquiry is unnecessary. Id. In this case, plaintiff challenges the ALJ's findings at step 5 of the sequential Commissioner must evaluation show there process. are other At jobs step that 5, exist the in significant numbers in the national economy which the claimant can perform consistent with his age, education, past work experience and residual functional capacity. 20 C.F.R. Residual defined functional capacity is §404.1520(g) (1). as that which an individual still is able to do despite the limitations caused by his impairments. 40. 20 C.F.R. §404.1545(a) (1); Fargnoli, 247 F.3d at In assessing a claimant's residual functional capacity, the ALJ is required to consider the claimant's ability to meet the physical, mental, sensory and other requirements of work. 20 C.F.R. §404 .1545 (a) (4) . Here, plaintiff argues that the ALJ erred at step 5 because he failed to properly consider certain medical evidence and he did The court finds not properly evaluate plaintiff's credibility. these arguments lack merit. Plaintiff first argues that the ALJ consider certain medical evidence from Dr. Tariq Qureshi and Dr. Sean Suo Dr. Thompson failed to properly Glenn Thompson, Dr. Plaintiff is incorrect. performed consultative a psychological evaluation of plaintiff on October 4, 2006, during the relevant period. limited Dr. in Thompson his ability concluded to that carry ~A072 (Rev. 8/82) - 5 ­ out plaintiff even was short markedly and simple instructions, coworkers, to interact appropriately with the public and to respond appropriately to changes in the work setting and make judgment on simple work-related decisions. 562) . and Dr. Thompson's restrictive assessment of (R. plaintiff's functional capabilities in these areas is inconsistent with the clinical findings set forth in his narrative report, (R. 554-61), and as noted by the ALJ, appears to be based on plaintiff's own subjective complaints, which the ALJ correctly determined were not entirely credible for the reasons explained below. Accordingly, the ALJ considered Dr. Thompson's opinion regarding plaintiff's functional limitations, but properly determined it was entitled to little weight because it was inconsistent with his own clinical findings, as well as other evidence of record and plaintiff's activities of daily living. Plaintiff evidence from also Dr. claims Qureshi plaintiff acknowledged at that and page the Dr. 8 of ALJ Su. failed Despi te his brief to consider this claim, supporting his summary judgment motion that evidence from these doctors post­ dates the relevant period, establish disability. Cir. 1990) and thus may not be relied upon to See Matullo v. Bowen, 926 F.2d 240, 244 (3d (observing that a claimant is required to establish that he became disabled prior to the expiration of his insured status). Although not obliged to consider this evidence, the ALJ nevertheless noted that Dr. Qureshi's opinion was entitled to little weight because it lacked clinical and diagnostic support and was inconsistent with other ~A072 (Rev. 8/82) - 6 ­ evidence of record from the relevant period (R. 23). For all of the foregoing reasons, the ALJ properly considered and evaluated the medi evidence in this case. Plaintiff next claims that the ALJ did not properly evaluate his credibility claimant's concerning complaints and his subjective other subjective supported by objective medical evidence. complaints. symptoms must A be 20 C.F.R. §404.1529(c) i Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). An ALJ may reject the claimant's subjective testimony if he does not find it credible so long as he explains why he is rej ecting the testimony. Schaudeck v. Commissioner of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Here, the ALJ properly analyzed plaintiff's subjective complaints, and he explained why he found plaintiff's testimony not entirely credible. In evaluating plaintiff's credibility, the ALJ complied with the appropriate regulations and considered evidence in plaintiff's treatment, the act record, of t including his including daily lack the living, of mental 1 of the relevant medical the evidence, extent health of his treatment, plaintiff's own statements about his symptoms and the opinions of physicians who examined him. (c) (3) extent i See 20 C.F.R. §§404.1529(c) (1) and Social Security Ruling 96-7p. to which reasonably could plaintiff's The ALJ then considered the alleged functional limitations accepted as consistent with the evidence record and how those limitations affect his ability to work. C.F.R. §404.1529(c) (4). The ALJ determined that the objective ~A072 (Rev. 8/82) 20 - 7 ­ evidence is inconsistent with plaintiff's allegation of total disability. Accordingly, the ALJ determined that plaintiff's testimony regarding his limitations was not entirely credible. (R. 22). This court finds that the ALJ adequately explained the basis for his credibility determination in his decision, 23), (R. 21­ and is satisfied that such determination is supported by substant evidence. Finally, connection with his credibility argument, plaintiff contends the ALJ improperly considered his act of daily living in evaluating his credibility. While ies is well established that sporadic or transitory activity does not disprove disability, see Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981), the ALJ did not solely judge plaintiff's credibility based on his activities of daily living. To the contrary, the ALJ properly considered plaintiff's activities of daily living, in conjunction with other factors, to assess his credibility, which he is permitted to do in accordance with 20 C.F.R. §404.1529. As stated by above, the ALJ's credibility finding is supported substantial evidence. Accordingly, plaintiff's argument regarding the ALJ's consideration of his activities of daily living lacks merit. After care ly and methodically considering 1 of the medical evidence of record, the ALJ determined that plaintiff is not disabled within the meaning of the Act. and conclusions are supported by substant ~A072 (Rev. 8/82) - 8 The ALJ's findings 1 evidence and are not otherwise erroneous. Therefore, the decision of the Commissioner must be affirmed. ~~ Gustave Diamond United States District Judge cc: Terry K. Wheeler, Esq. 56 Clinton Street Greenville, PA 16125 Albert Schollaert Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 ~A072 (Rev, 8/82) - 9 ­

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