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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT JEFFREY OSTERRIEDER,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
September 20, 2013
Plaintiff. Robert Jeffrey Osterrieder (“Plaintiff” or “Osterrieder”) initiated this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the decision of the Commissioner
of Social Security, Michael J. Astrue (the “Commissioner” or “Astrue”) denying his application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles
II and XVI of the Social Security Act (the “Act”). See 42 U.S.C. §§ 401-434, 1381-1383f.
Plaintiff protectively filed an application for DIB on May 19, 2009, and an application for SSI on
July 26, 2010. R. 153-163. Plaintiff alleged disability from February 1, 2008, due to bipolar
disorder, anxiety, depression, migraines, high blood pressure, a heart murmur, plantar fasciitis,
panic attacks and the inability to sleep. R. 188. The applications were initially denied on January
11, 2011, and Plaintiff timely requested a hearing. R. 82-83, 103.
A hearing was held on June 27, 2011, before Administrative Law Judge John Kooser
(the “ALJ”), and a Vocational Expert (“VE”) and Plaintiff, who was represented by counsel,
appeared and gave testimony. R. 12-27. The ALJ issued a written decision on July 15, 2011,
finding that Plaintiff was not disabled under the Act because he could perform a range of
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unskilled, medium work, including his past relevant work. R. 19-24. Plaintiff timely requested a
review of the ALJ’s decision to the Appeals Council, which was denied on June 12, 2012,
making the ALJ’s decision the final decision for judicial review pursuant to 42 U.S.C. § 405. R.
1-3. Plaintiff subsequently filed his appeal with this Court.
STATEMENT OF THE CASE
Plaintiff was twenty-two (22) years old on the date of the ALJ’s decision, making him a
younger person under the regulations. R. 35. See 20 C.F.R. §§ 404.1563(c) & 416.963(c).
Plaintiff completed the eleventh grade, quit high school two (2) months prior to the end of his
senior year, and as of the date of the hearing he had not passed the GED exam. R. 38, 58.
Plaintiff had earnings from 2006 through 2010, and had twelve (12) different places of
employment over that time period. R. 166-170. Plaintiff earned more than $3,000.00 at only four
(4) of those employers: (1) Baierl Chevrolet, Inc. in 2007 & 2008; (2) New Wave Car Wash in
2007; (3) Team Rahal of Pittsburgh, Inc. in 2008; and (4) First Commonwealth Bank in 2009 and
2010. R. 167-168.
On an agency form completed in connection with his applications, Plaintiff indicated that
he stopped working on March 31, 2010. R. 188. Plaintiff testified that he was an amateur boxer
and the gym offered him a job, but he needed a college education. R. 35. The gym told plaintiff
that they would hire him part-time while he attended school. R. 42. The gym offered Plaintiff a
$1,000 scholarship to attend school, and Plaintiff testified that he intended to attend the
community college and study psychology. R. 36.
Plaintiff and his manager and trainer were planning to have Plaintiff turn professional in
the next year. R. 36. Plaintiff reported that “[i]n about 20, 25 more fights I could sign a contract
to turn professional.” R. 48. Plaintiff testified that during that time he was “pretty much just
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working on training to get ready for that fight.” R. 48. Plaintiff also testified that he worked as
an assistant trainer at the gym. R. 36. Plaintiff went to the gym every day except Sundays and
Fridays and spent 6.5 to 7.0 hours training. R. 47-48.
Plaintiff drove to the gym, to his parents’ house, or to go shopping, but he reported
having anxiety and difficulty concentrating behind the wheel. R. 37-38. During an outing to a
baseball game with a group of fellow therapy patients, Plaintiff testified that he had a panic
attack. R. 43. Plaintiff was able to attend the game but indicated that he just remembers sitting
there and “trying to calm myself down for two and a half hours”. R. 44. Plaintiff feels a
different type of anxiety when boxing. R. 50. Plaintiff described it as an anxiety that motivates
him, much different than the anxiety he feels when walking “into a Wal-Mart,” which is almost
From September 2006 to April 2008, Plaintiff was treated by a psychiatrist, Suzanne
Lucot, M.D. (“Dr. Lucot”). R. 234-237. Dr. Lucot diagnosed Plaintiff with anxiety, bipolar
disorder, and social disorder, and assessed Plaintiff with an initial Global Assessment of
Functioning (“GAF”)1 scale score of 50, which indicates serious symptoms, and subsequent GAF
scores of 55, 60 and 65 which scores indicate moderate to mild functional limitations. R. 233-
1 The Global Assessment of Functioning Scale (“GAF”) assesses an individual’s
psychological, social and occupational functioning with a score of 1 being the lowest and a score
of 100 being the highest. The GAF score considers “psychological, social, and occupational
functioning on a hypothetical continuum of mental health-illness.” AMERICAN PSYCHIATRIC
ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
(DSM-IV-TR) 34 (4th ed. 2000). An individual with a GAF score of 51 – 60 may have
“[m]oderate symptoms” or “moderate difficulty in social, occupational, or school functioning”.
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After Plaintiff stole a car in April of 2008, Plaintiff’s mother referred him to Jody Glance.
M.D. for a psychiatric evaluation. R. 214. Plaintiff told Dr. Glance that he had some feelings of
depression but mostly he felt anxious. Id. Dr. Glance assessed Plaintiff as follows:
[Plaintiff has a] long history of anxiety, recently diagnosed with bipolar
d/o but not endorsing any current or previous symptoms of mania. It is
more likely that [Plaintiff] has a combination GAD depression and ADHD
given his presentation and past history . . . He does not show any evidence
of current suicidality/lethality and . . .is looking forward to getting back
R. 215. Dr. Glance referred Plaintiff to a partial therapy program at Mercy Hospital. Id.
Plaintiff was treated at the Irene Stacy Community Mental Health Center from
February 2009 until June 2010, by psychiatrists Randon Simmons, M.D., and Grace McGorrian
(“Dr. Simmons” and “Dr. McGorrian”). R. 306-339. Plaintiff’s initial psychiatric evaluation by
Dr. Simmons in February of 2009 revealed pressured speech, clear anxiety, average intelligence,
intact judgment and insight, and passive suicidal ideation. R. 317. Dr. Simmons also noted that
Plaintiff “complicated the picture by self-administering steroids” for body-building purposes2. R.
316. During his period of treatment at Irene Stacy, Plaintiff also admitted to periods of heavy
drinking. R. 326.
Plaintiff was admitted to Western Pennsylvania Hospital, Forbes Campus, in March 2009
for depression, following an overdose of Klonopin. R. 511-512 (Tr. 511-12). Plaintiff was
diagnosed with major depressive disorder, GAD, and possible attention deficit disorder
2 Plaintiff also told Dr. McGorrian of his cycles of steroid abuse using testosterone and other
anabolic steroids. R. 313.
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(“ADD”). R. 512. Plaintiff indicated that he had been using anabolic steroids for four weeks,
and since stopping his mood had worsened. Id. After a regimen of medication, both mood
stabilizing and anti-anxiety, Plaintiff’s condition showed marked improvement.3 R. 514.
Suzanne Houk, Ph.D. (“Dr. Houk”), evaluated Plaintiff on December 17, 2010, at the
request of the Commissioner. Dr. Houk diagnosis included bipolar disorder not otherwise
specified, GAD, social phobia, and history of alcohol abuse. R.486. Dr. Houk also opined that
Plaintiff had a moderate to marked restriction in the ability to understand, remember,
and carry out short, simple, instructions, and make judgments on simple work-related decisions;
a marked to extreme restriction in the ability to understand, remember, and carry out detailed
instructions; and a marked restriction in the ability to interact appropriately with the public,
supervisors, and co-workers, and to respond appropriately to both changes and work pressures in
a normal work setting. R. 487. Further, Dr. Houk found that alcohol/substance abuse did not
contribute the assessed limitations as Plaintiff had been abstinent. R. 488.
Jan Melcher, Ph.D. (“Dr. Melcher”), a state agency psychological expert, reviewed
Plaintiff’s file in January of 2011, and opined that he could meet the basic demands of
competitive work on a sustained basis. R. 494. On a Psychiatric Review Technique
form, Dr. Melcher assessed Plaintiff’s impairments in light of the requirements of Listings 12.02,
12.04, 12.06, 12.08, and 12.09, and opined that Plaintiff’s impairments caused no restriction in
his daily activities, moderate limitations in maintaining social functioning and concentration,
3 Plaintiff’s GAF score improved from 20 on admission to 65 on discharge, his mental status
examination yielded normal findings, and he was free of significant depression. R. 514.
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persistence, or pace, and no episodes of decompensation of extended duration. R. 505.
Moreover, Dr. Melcher found that Dr. Houk’s assessments were based on Plaintiff’s subjective
reports and were inconsistent with the totality of the evidence. R. 494.
In June of 2011, Plaintiff was evaluated by Robert Eisler, M.D. (“Dr. Eisler”). Dr.
Eisler’s diagnosis included bipolar disorder, GAD, TBI, and drug-alcohol dependency, and
issued a poor prognosis. R. 541. Dr. Eisler further noted a GAF of 20, and indicated that Plaintiff
could not be gainfully employed for at least a year. Id.
The ALJ found that Plaintiff had the following severe impairments: GAD, social phobia,
intermittent explosive disorder, alcohol dependence in remission, bipolar disorder, ADHD,
shoulder sprain, heart murmur, and degenerative disc disease. R. 17. He found, however, that
Plaintiff’s severe impairments did not meet or equal any impairment listed in 20 C.F.R.
pt. 404, Subpt. P, App. 1. R. 18-19. The ALJ considered the functional limitations resulting
from Plaintiff’s impairments and found, in pertinent part, that he retained the residual functional
capacity (RFC) to perform medium work but was limited to simple, routine, repetitive tasks
performed in a low-stress environment, which was defined as one involving no complex decision
making, very infrequent, unexpected workplace changes, and no high volume productivity
requirements; and was further limited to no more than occasional contact with supervisors; very
infrequent, superficial contact with co-workers; and no contact with the public. R. 19. Based
upon Plaintiff’s RFC for unskilled, medium work, and the testimony of the VE, the ALJ found
that Plaintiff was capable of performing his past relevant work as a car dealer. R. 22-23.
Accordingly, the ALJ found that Plaintiff was not disabled under the Act.
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STANDARD OF REVIEW
This Court’s review is plenary with respect to all questions of law. Schaudeck v.
Commissioner of Social Security Administration, 181 F.3d 429, 431 (3d Cir. 1999). With respect
to factual issues, judicial review is limited to determining whether the Commissioner’s decision
is “supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner’s decision
or re-weigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-
1191 (3d Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). 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, 108 S.Ct. 2541,
101 L.Ed.2d 490 (1988)(internal quotation marks omitted). As long as the Commissioner’s
decision is supported by substantial evidence, it cannot be set aside even if this Court “would
have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). “Overall, the substantial evidence standard is a deferential standard of review.” Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him [or her] from engaging in any
‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Secretary of
Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777
(3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be
unable to engage in substantial gainful activity “only if his [or her] physical or mental
impairment or impairments are of such severity that he [or she] is not only unable to do his [or
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her] previous work but cannot, considering his [or her] 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)(2)(A), 1382c(a)(3)(B).
To support his or her ultimate findings, an administrative law judge must do more than
simply state factual conclusions. He or she must make specific findings of fact. Stewart v.
Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The administrative
law judge must consider all medical evidence contained in the record and provide adequate
explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d
955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
The Social Security Administration (“SSA”), acting pursuant to its legislatively-delegated
rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court recently summarized this process by stating as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
unless the claimant shows that he is not working at a “substantial gainful
activity.” [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
non-disability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits [the claimant’s] physical or mental ability to do basic work activities.” §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
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Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)(footnotes
omitted). Factual findings pertaining to all steps of the sequential evaluation process are subject
to judicial review under the “substantial evidence” standard. McCrea v. Commissioner of Social
Security, 370 F.3d 357, 360-361 (3d Cir. 2004).
In an action in which review of an administrative determination is sought, the agency’s
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. In Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67
S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing
with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by substituting what it considers to
be a more adequate or proper basis. To do so would propel the court into the
domain which Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has
recognized the applicability of this rule in the Social Security disability context. Fargnoli v.
Massanari, 247 F.3d 34, 44, n. 7 (3d Cir. 2001). Thus, the Court’s review is limited to the four
corners of the ALJ’s decision. Cefalu v. Barnhart, 387 F.Supp.2d 486, 491 (W.D. Pa. 2005).
Within the meaning of social security law, a “disability” is defined as the inability to do
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). To be found
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disabled, an individual must have a “severe impairment” which precludes the individual from
performing previous work or any other “substantial gainful activity which exists in the national
economy.” 20 C.F.R. § 404.1505.
ALJ’s Disregard of Physician Opinions
Plaintiff initially contends that the ALJ erred in failing to give proper weight to his
treating and examining physicians. Specifically, Plaintiff directs this Court to the following:
In a Questionnaire, Dr. Simmons, Plaintiff’s treating psychiatrist at the Irene Stacy
Community mental Health Center, indicated that Plaintiff would not be able to obtain and
sustain full-time employment due to his severe social anxiety that limits his ability to go
places and do things. R. 528.
? A consultative evaluation by Dr. Suzanne Houk, a psychologist, indicated that Plaintiff
had marked impairment in his ability to interact appropriately with the public,
supervisors, or co-workers, and would not respond appropriately to changes in a routine
work setting. R. 487.
? A psychiatric evaluation completed by Robert L. Eisler, M.D. indicated that Plaintiff had
“poor” to “no” ability to follow work rules, use judgment, interact with others and would
be unable to be gainfully employed for a year or more. He also indicated that Plaintiff’s
GAF was 20. R. 541-543.
Generally, “opinions of a claimant's treating physician are entitled to substantial and at
times even controlling weight.” Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(d)(2)). It is the ALJ, however, not the treating or examining physicians or
State agency consultants that must make the ultimate disability and RFC determinations. See 20
C.F.R. §§ 404.1527(e)(1), 404.1546(c). Although the opinions of treating and examining
physicians often deserve more weight than the opinions of doctors who review records, the Third
Circuit clearly holds that “the opinion of a treating physician does not bind the ALJ on the issue
of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011) see also 20 C.F.R.
§ 404.1527(d)(1)–(2). State agent opinions also merit significant consideration. See SSR 96-6p,
1996 SSR LEXIS 3 (“Because State agency medical and psychological consultants . . . are
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experts in the Social Security disability programs, . . . 20 C.F.R. §§ 404.1527(f) and 416.927(f)
require [ALJs] . . . to consider their findings of fact about the nature and severity of an
individual’s impairment(s) . . . .”).
An ALJ, however, may not simply “ignore the opinion of a competent, informed, treating
physician.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). Further, when making a
residual functional capacity determination, “an ALJ may not reject pertinent or probative
evidence without explanation.” Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir.
2008). The treating physician’s opinion is entitled to controlling weight if the “treating source’s
opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record . . .” 20 C.F.R. §
404.1527(d)(2). In making a RFC determination, then, the ALJ must consider all evidence
before him, and although the ALJ may weigh credibility, he must explain the weight given to
physician opinions and the degree to which a claimant’s testimony is credited, as well as indicate
which evidence he rejects and his reason for discounting such evidence. See 20 C.F.R. §
404.1527(f)(2)(ii); see also Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Burnett v.
Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
The ALJ’s RFC assessment was thorough, as he examined the medical evidence spanning
several years and explained his decision to give certain medical evidence more weight than other
such evidence. R. 19-22. The Court finds that the ALJ gave proper weight to the medical
evidence in determining Plaintiff’s RFC.
The ALJ recognized that Dr. Simmons was a treating psychiatrist, but found that his
opinion was not supported by either the doctor’s treatment notes or by Plaintiff’s testimony with
regard to his daily activities. The ALJ specifically pointed to Plaintiff’s “wide variety of
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activities,” including competing in amateur boxing matches, training at the gym almost forty
(40) hours per week, attending community class, and volunteering with teenagers at his boxing
gym. R. 22. The ALJ explained that “these activities are incompatible with the severe
restrictions that Dr. Simmons outlined in his opinion”. Id. Moreover, in his most recent
objective findings , Dr. Simmons indicated that Plaintiff was overall doing well with his
medication and treatment . R. 522. The ALJ also cited the fact that Plaintiff had not required any
emergency treatment or hospitalization since he stopped abusing alcohol and steroids. For these
same reasons, the ALJ gave little weight to the opinions of Drs. Houk and Eisler.
The ALJ was also entitled to give substantial weight to the opinion of Dr. Melcher, the
state agency psychological expert. Dr. Melcher opined that Plaintiff’s impairments did not meet
or equal the requirements of any listing and that Plaintiff was able to meet the basic demands of
competitive work on a sustained basis. R. 494. In light of such conflicting and internally
contradictory evidence, the ALJ correctly determined that the opinions of Plaintiff’s treating
physicians were not controlling. Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. Pa. 1991).
Evaluation of Plaintiff’s Impairments
Plaintiff contends that the ALJ erred in his finding that Plaintiff did not meet an
impairment listed in the Listings of Impairments in Appendix 1, Subpart P, Regulation No. 4.
“For a claimant to show that his impairment matches a listing, it must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Hernandez v. Comm'r of Soc. Sec., 198 Fed. Appx. 230, 234 (3d Cir.
N.J. 2006) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). In order to qualify as per se
disabled by showing that his unlisted impairment or combination of impairments is “equivalent”
to a Listed Impairment, Plaintiff “must present medical findings equal in severity” to the criteria
contained within the relevant Listing. Sullivan v. Zebley, 493 U.S. at 531.
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Regarding Step 3 determinations, the ALJ is not required to “use particular language or
adhere to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F. 3d 501, 505
(3d Cir. 2004). See Scatorchia v. Comm’r of Soc. Sec., 137 Fed. App’x 468, 470 – 71 (3d Cir.
2005) (an ALJ satisfies his burden “by clearly evaluating the available medical evidence in the
record and then setting forth the evaluation in an opinion, even where the ALJ did not identify or
analyze the most relevant listing”). An ALJ’s discussion – when read as a whole – is supported
by substantial evidence when it reveals that the ALJ considered the appropriate facts when
deciding that a claimant did not meet any specific disability listings. Id.
As stated above, the ALJ, after a comprehensive review of the evidence of record,
concluded that Plaintiff had only a mild restriction in his daily activities based on his ability to
pursue a boxing career, by working out at a gym five days a week, attending weekly life classes
at his transitional housing facility, taking courses at the community college, as well as
maintaining his weekly appointments at Irene Stacy with his therapist, his caseworker,
and his therapy group. The ALJ provided sufficient explanation for his conclusion that Plaintiff
did not have a severe impairment. Moreover, there is no particular language or format that an
ALJ must use in his or her analysis as long as there is “sufficient development of the record and
explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004). In this case, the ALJ’s opinion not only sets forth the facts used in rendering his
decision, but it also provides a thorough examination of the medical evidence. The ALJ
determination at step 3, therefore, is supported by substantial evidence.
Testimony of the VE
Plaintiff argues that the ALJ improperly disregarded the VE’s testimony and relied upon
an incomplete hypothetical question. Specifically, Plaintiff contends that the ALJ disregarded
the VE’s testimony that no suitable work existed for Plaintiff if his claims of severe memory
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deficits, problems with concentration/attention, being off task, missing work, and marked
impairments were factors in the hypothetical questions. In this instance, the ALJ could properly
disregard Plaintiff’s alleged limitations as they were unsupported in the record.
At the hearing, the VE testified that Plaintiff’s past relevant work as a cashier/checker
was semi-skilled, light work; his car detailer and lot attendant job was unskilled, medium work;
his sales associate job was unskilled, light work; and his bank teller job was skilled, light work.
R. 69. After considering a hypothetical regarding an individual with Plaintiff’s vocational factors
who had the functional limitations contained in the ALJ’s RFC finding, the VE testified that such
individual could perform Plaintiff’s past relevant work as a car detailer. R. 70.
Hypothetical questions to vocational experts must accurately portray the claimant’s
impairments and cannot constitute substantial evidence if the question omitted any impairments
that are medically established by the evidence on record. Rutherford v. Barnhart, 399 F.3d 546,
554 (3d Cir. 2005). ). In posing a hypothetical question to a vocational expert, “the ALJ must
accurately convey . . . all of a claimant’s credibly established limitations” as determined in the
RFC. Id. If the hypothetical question does not include “medically undisputed evidence of
specific impairments” in the record then “the [VE’s] response is not considered substantial
evidence.” Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
The hypothetical question(s) presented to the VE by the ALJ were supported by the
medical evidence found credible by the ALJ. Moreover, the evidence regarding Plaintiff’s daily
activities does not support the limitations advocated by Plaintiff for inclusion in the
A claimant who is capable of returning to his or her past relevant work is denied benefits
at the fourth step of the process. Barnhart v. Thomas, 540 U.S. 20, 25-29 (2003). Moreover, by
agency ruling a claimant will be found “not disabled” if he can perform the actual demands of
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his past work, or the “functional demands and job duties of the occupation as generally required
by employers throughout the national economy.” See SSR 82-61, Past Relevant Work – The
Particular Job or the Occupation as Generally Performed. The disability inquiry, therefore, ends
upon such a finding at step four. The Court find’s substantial evidence in support of the ALJ’s
determination that Plaintiff was able to return to his past relevant work.
Plaintiff next argues that the ALJ’s RFC assessment was not supported by substantial
evidence. With respect to RFC assessments4, ALJ’s are not required to include every alleged
limitation in their hypotheticals and RFC assessments; their responsibility is to “accurately
convey” only “credibly established limitations” which “are medically supported and otherwise
uncontroverted in the record.” Rutherford v. Barnhart, 399 F. 3d 546, 554 (3d Cir. 2003). An
RFC assessment is not a medical assessment, but an administrative finding reserved to the
Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e) (2006); SSR 96-5p, 1996 SSR LEXIS 2.
The responsibility of assessing a claimant’s RFC rests with medical experts at the state agency
level, with the ALJ at the administrative hearing level, or with the Appeals Council. Id. The ALJ
is required to conduct an independent analysis of the relevant evidence and develop an
appropriate RFC based upon that evidence. 20 C.F.R. §§ 404.1545, 416.945. It is the ALJ’s
exclusive duty, as fact finder, to make an RFC assessment. 20 C.F.R. §§ 404.1546(c),
416.946(c); see Richardson v. Perales, 402 U.S. 389, 399 (1971)(recognizing that the duty to
weigh the evidence rests with the trier of fact, not the reviewing court).
4 A claimant’s residual functional capacity is only assessed once. Her v. Commissioner of
Social Security, 203 F.3d 388, 391-392 (6th Cir. 1999). The same residual functional capacity
assessment is used at the fourth and fifth steps of the sequential evaluation process. 20 C.F.R. §§
404.1545(a)(5)(i)-(ii), 416.945(a)(5)(i)-(ii). Therefore, the testimony elicited by a single
hypothetical question may relate to both the fourth and fifth steps.
Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 16 of 16
Here, there is no merit to Plaintiff’s contention that the record fails to support the ALJ’s
RFC assessment. In support of his contention, Plaintiff again directs this Court to the opinions of
Drs. Simmons, Houk and Eisler. This Court, however, has already found that the ALJ’s
evaluation of the medical evidence in this case was proper. There was more than adequate
evidence in the record to allow the ALJ to give little or no weight to those opinions. Based upon
the ALJ’s thorough and detailed consideration of the record as a whole, the Court finds that the
ALJ's RFC assessment is supported by substantial evidence of record.
Based on the foregoing, Defendant’s Motion for Summary Judgment will be
granted. Plaintiff’s Motion for Summary Judgment will be denied. The decision of the ALJ is
affirmed. An appropriate Order follows.
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
Christine M. Nebel, Esquire
Paul Kovac, AUSA
(Via CM/ECF Electronic Mail)