Opinion
Civil Action No. 01-4100.
May 19, 2004
MEMORANDUM
Plaintiff, Angela Daniel, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for supplemental security income (SSI) under Title XVI of the Social Security Act (SSA), 42 U.S.C. § 1381-1383f. The parties have filed cross-motions for summary judgement. For the reasons that follow, summary judgement is granted in favor of Defendant, the Commissioner of Social Security.
I. BACKGROUND
Ms. Daniel was born on November 17, 1966. She has a high school education and some college education. She alleges a right to SSI because of claimed disability resulting from recurring dislocation of her shoulders. (Transcript of the Record of Proceedings before the Social Security Administration (hereinafter "Tr.") 40, 45). Ms. Daniel initially filed for SSI on December 14, 1998, alleging disability beginning November 5, 1998. (Tr. 40-42). The state agency denied the application initially and upon reconsideration. (Tr. 22-29, 34-36). At Daniel's request, a hearing was held on February 22, 2000. Daniel chose to proceed without representation. Both Daniel and a vocational expert testified at the hearing. The Administrative Law Judge ("ALJ") found that Daniel did not qualify for SSI. (Tr. 19). The Appeals Council denied Daniel's request for review of the ALJ decision. (Tr. 6-7).
The parties filed cross-motions for summary judgement. Angela Daniel, proceeding pro se, argues that her disability, recurring dislocation of her right and left shoulders, started in 1982 and prevents her from engaging in gainful employment. Her motion can be read as a challenge that the ALJ's decision is not supported by substantial evidence. The Commissioner of Social Security argues that the ALJ's decision is supported by substantial evidence, and, therefore, the court should enter a motion for summary judgement in favor of the Commissioner.
II. STANDARD OF REVIEW
Decisions of an administrative law judge are upheld if supported by substantial evidence. Pierce v. Underwood, 487 U.S. 522, 565 (1988); Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce, 487 U.S. at 565; Burns, 312 F.3d at 118. Even if this court would have decided the case differently, it must give deference to the ALJ and affirm the findings if they are supported by substantial evidence. See Raglin v. Massanari, 39 Fed. Appx. 777, 778 (3d Cir. 2002), citing Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). This court is not in a position to weigh the evidence or substitute its own conclusions for that of the fact-finder.Burns, 312 F.3d at 118.
III. FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
A person is disabled within the meaning of the SSA, 42 U.S.C. § 1382c(a)(3)(A), if she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has or can be expected to last for a continuous period of not less than twelve months. In order to determine disability, 20 C.F.R. § 416.920 requires a five step analysis, which the ALJ recognized and conducted in making his determination. (Tr. 14). In step five, the burden shifts to the Commissioner to show that "other work exists in significant numbers in the national economy that accommodates [a claimant's] residual functioning capacity and vocational factors, [claimant] is not disabled." (Tr. 14); see Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability. (Tr. 18). At step two, the ALJ determined that her status, after the left surgery shoulder, is a severe impairment. At step three, applying 20 C.F.R. § 1420.1520(d), the ALJ determined that Daniel did not have a condition that met or equaled one of the listed impairments that would allow Daniel to be classified as per se disabled. (Tr. 18). At step four, the ALJ determined that Daniel had no past relevant work. (Tr. 18). The ALJ then reached step five and determined that "there are a significant number of jobs in the national economy which she could perform" and, therefore, that Daniel was not disabled for purposes of the SSA. (Tr. 18-19).
The ALJ considered 1) medical evidence from Plaintiff's treating physician, 2) other medical evidence, including her residual functioning capacity profile, 3) testimony from Angela Daniel, and 4) testimony and opinion from a vocational expert (VE). After considering this information and determining the credibility and weight to give the evidence he received, the ALJ determined that Daniel is not disabled within the meaning of the SSA. (Tr. 14).
A. Ms. Daniel
The ALJ found that Ms. Daniel's testimony was largely credible to the extent that she claims she has serious left shoulder problems. (Tr. 16). For that reason, he limited Daniel's residual functioning capacity to sedentary desk jobs. (Tr. 16). However, the ALJ also determined that Daniel's allegations about the extent of her limitations are "not totally credible." (Tr. 18). When there is conflicting evidence, as existed between Daniel's testimony and the medical evidence, "the ALJ may choose whom to credit" so long as the ALJ considers all the evidence and gives "some reason for discounting the evidence she rejects."Plummer, 186 F.3d at 429. The ALJ explained why he did not find Daniel's testimony entirely credible. Ms. Daniel complained about problems with both her right and left shoulders. (Tr. 134-35). All of the medical evidence was about left shoulder problems. (Tr. 16). The ALJ found it surprising that, given the number of visits Plaintiff made to Dr. Sherk, Daniel neither complained of right shoulder problems nor sought treatment for such condition. The ALJ also noted that Daniel admitted in her testimony that she does not do her home exercises and she only takes Tylenol for the pain. (Tr. 16). The ALJ found that these facts were not supportive of Daniel's position concerning the severity of her condition. (Tr. 16).
B. Treating Physician
The ALJ observed that Plaintiff's treating physician, Dr. Sherk, (at exhibit 2F, Tr. 101) noted that Daniel's progress was good and that she should be better by September, 1999. (Tr. 16). Sherk later determined that Daniel's disability should have only lasted until August 9, 1999. (Tr. 82). On June 24, 1999, Sherk observed that Daniel had limited motion, as was expected after surgery, was able to achieve full elevation of her left shoulder over her head in wall climbing exercises, was experiencing satisfactory progress, and could discontinue physical therapy but should continue home exercise program. (Tr. 127). Dr. Sherk also determined that she had ability to perform both left and right "fine and dextrous movements." (Tr. 102).
This assessment was completed on March 22, 1999. In the analysis, the doctor reported that Daniel's disability began on February 9, 1999, and was expected to last until August 9, 1999.
Dr. Sherk's assessment, dated January 22, 1999, related to various activities, including, but not limited to, fastening buttons, opening jars, lifting small objects, dialing a telephone, and using push buttons.
Furthermore, Daniel's treating physician, on two occasions, determined that Daniel's disability should last less than twelve months. The treating physician's determinations are entitled to great weight and should not be rejected absent contradictory evidence. See Plummer, 186 F.3d at 429. The ALJ largely accepted Dr. Sherk's assessment of the degree of her disability. While the ALJ noted that Dr. Sherk indicated that Daniel may be eligible for Social Security Disability Benefits, the ALJ discredited this statement. Dr. Sherk indicated on a check-off form that Plaintiff was temporarily disabled. The ALJ's decision to discredit this statement was based, in part, on the finding that it was a welfare check-off form that was contradicted by Dr. Sherk's other assessments. See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best"). The ALJ determined that this assessment was not supported by other medical evidence or even by Dr. Sherk's progress notes. (Tr. 16). This portion of the form could have also been discredited based on the fact that Dr. Sherk appears to have checked the wrong box. He checked a box indicating that she would be disabled for twelve months or more, but wrote that her disability began on February 9, 1999 and was expected to terminate on August 9, 1999. (Tr. 82). This assessment of a temporary disability terminating near August, 1999, is supported by Sherk's earlier conclusion that Daniel was expected to recover by September, 1999. (Tr. 101). Dr. Sherk's assessments about the date the disability began and the expected date of recovery also would contradict a finding that Daniel was disabled within the meaning of the SSA.
An individual may only be considered disabled if the disability has lasted or can be expected to last "for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A).
C. Other Medical Evidence
The Disability Determination Physicians ("DDPs") opined that Plaintiff could perform medium work without limitations. (Tr. 104-11, 119-26). In the residual functioning assessments, one conducted on January 27, 1999, and the other conducted on June 8, 1999, the assessors determined that Plaintiff could occasionally lift fifty pounds, could frequently lift and/or carry twenty-five pounds, could stand and/or walk about six hours in an eight hour work day, could sit for a total of six hours in a workday, and had unlimited pushing and pulling ability. (Tr. 105 120). The ALJ discredited the verity of those medical opinions and gave Plaintiff the benefit of the doubt based on the fact that the ALJ "has the advantage of hearing the claimant and seeing more recent evidence." (Tr. 17). In assessing whether Daniel qualified for SSI, the ALJ substituted his own opinion for that of the medical experts and determined that Daniel could perform only sedentary work, rather than the medium work that the DDPs determined she could perform.
D. The Vocational Expert's Opinion
Under the belief that Daniel could perform only light to sedentary work, the ALJ asked the vocational expert whether a person of Daniel's age, thirty-three at the time, with Daniel's education and vocational background, with Daniel's limitations regarding directional movement of her arms and limited ability to push and pull, could perform jobs within the regional or national economy. (Tr. 142-43). The vocational expert opined that, assuming the limitations presented by the ALJ, he would have to limit his analysis to sedentary jobs. Based on sedentary jobs, the VE determined that Daniel could work in such positions as telephone information clerk (financial institutions), with 2,000 positions regionally and 98,000 nationally, surveillance system monitor, with 1,300 jobs regionally and 58,000 nationally, or telephone quotation clerk (brokerage services), with 1,000 jobs regionally and 48,000 nationally. (Tr. 144).
IV. APPLYING THE STANDARD OF REVIEW
THE ALJ considered evidence from Daniel, her treating physician, a vocational expert, and two disability determination physicians. The ALJ considered a great deal of evidence from Daniel's treating physician regarding Daniel's condition, treatment, and prognosis. This evidence supported the ALJ's conclusion that Daniel was not disabled for purposes of the SSA. The ALJ discounted medical conclusions by two Disability Determination Physicians that Daniel could perform medium level work. Instead, the ALJ gave Daniel the benefit of the doubt that, as a result of her impairment, Daniel could perform only light or sedentary work. Even with the presumption that Daniel could perform only sedentary work, after being given a hypothetical assuming Daniel's age, education, physical limitations, and lack of prior work experience, the Vocational Expert testified that Daniel could perform work that was widely available both regionally an nationally.
Based on the standard of review and an analysis of the record, this court concludes that there is substantial evidence to support the ALJ's conclusion that Daniel can perform work that exist in significant numbers in the national economy and she is, therefore, not disabled as defined by the SSA. The ALJ's determination is supported by "such relevant evidence as a reasonable mind might accept as adequate." Plummer, 186 F.3d at 427. In this case, the ALJ's conclusion is supported by the reports of the treating physician and the Disability Determination Physicians, as well as by the testimony of the Vocational Expert. The ALJ gave credence to some of Daniel's claims of impairment, while discrediting other portions of her testimony based on contradictory evidence in the medical records. The ALJ reviewed the evidence before him, considered the relevant evidence in his written opinion, and explained why he credited particular pieces of evidence and why he discredited or gave less weight to other pieces of evidence. The ALJ conducted a thorough review of the evidence, stated the rationale for the decision, and the decision to deny Daniel supplemental security income is supported by substantial evidence.
V. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgement will be granted and Plaintiff's motion for summary judgement will be denied.
ORDER
AND NOW, this 19th day of May, 2004, upon consideration of Plaintiff's and Defendant's cross-motions for summary judgement, it is hereby ORDERED that Defendant's motion for summary judgement (doc. no. 16) is granted and Plaintiff's motion for summary judgement (doc. no. 17) is denied.IT IS FURTHER ORDERED that final judgement is entered in favor of Defendant, Commissioner of Social Security and against Plaintiff, Angela Daniel, and the case is to be marked closed.