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Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 1 of 16






Commissioner of Social Security,



Electronic Filing


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

Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 2 of 16

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.



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

“debilitating.” Id.

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
(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
into therapy.

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.


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 6 of 16

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.


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 7 of 16



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


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 8 of 16

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).


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 9 of 16

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


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 10 of 16

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


Case 2:12-cv-01155-DSC Document 12 Filed 09/20/13 Page 15 of 16

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’s RFC

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)