LISA PUPO LENIHAN, Magistrate Judge.
Plaintiff David Lyons ("Lyons") brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the Commissioner of Social Security's ("Commissioner") denial of Lyons's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 401-34, 1381-83f, respectfully. This matter is presently before the Court on cross-motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56. (ECF Nos. 14 & 16). The parties developed the applicable record
Lyons first applied for DIB and SSI benefits on December 30, 2009, alleging disability beginning November 15, 2009. (R. at p. 66). Both applications were denied on July 28, 2011, following a hearing. (R. at p. 74). The Appeals Council upheld the denials on December 31, 2012. (R. at p. 84).
Lyons applied a second time for DIB and SSI benefits, protectively filing on January 7, 2013. (R. at p. 205). He originally averred that his disability began on November 7, 2009. (R. at p. 189). But he later amended his alleged disability onset date to July 29, 2011, accounting for the adverse final decision rendered in his first set of DIB and SSI applications. (R. at p. 12). Lyons's second set of DIB and SSI applications were initially denied on February 22, 2013. (R. at pp. 115, 120). Following this denial, Lyons requested an administrative hearing. (R. at p. 125).
The requested hearing occurred before Administrative Law Judge Kenworthy ("ALJ") on April 17, 2014, in Pittsburgh, Pennsylvania. (R. at p. 26). Lyons was represented by counsel. An impartial vocational expert ("VE") testified about positions available in the national economy to individuals like Lyons. (R. at pp. 46-48). In a written decision on April 23, 2014, the ALJ denied Lyons's second set of DIB and SSI applications. (R. at p. 21). After receiving an unfavorable decision from the ALJ, Lyons filed a request for review to the Appeals Council on June 19, 2014. (R. at p. 8). The Appeals Council denied Lyons's request on November 6, 2015; the ALJ's decision became the Commissioner's final decision. (R. at p. 1).
With no Social Security administrative remedies remaining, Lyons began this action to review the Commissioner's decision on December 9, 2015. (ECF No. 3). Lyons and the Commissioner filed cross-motions for summary judgment on April 4, 2016, and May 4, 2016, respectively. (ECF Nos. 14 & 16). Each party filed briefs supporting their motions. (ECF Nos. 15 & 17). These pending motions for summary judgment are now ripe for disposition.
Lyons was born on January 18, 1963; he was forty-eight years old on his alleged disability onset date and fifty-one years old on the date of his hearing before the ALJ. (R. at pp. 12, 26, 86). He is a high school graduate and earned an Associate's Degree in 2007. (R. at p. 31).
Lyons alleged several impairments in his second set of DIB and SSI applications. His impairment list includes: post-traumatic stress disorder, lumbar spondylosis/facet arthropathy, carpal tunnel syndrome, fibromyalgia and myositis, osteopenia, and asthma. (R. at p. 86).
This Court's review is plenary with respect to all questions of law.
In order to establish a disability under the Act, a claimant must demonstrate a "medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period."
To support his ultimate findings, an ALJ must do more than simply state factual conclusions. He must make specific findings of fact.
The Social Security Administration ("SSA"), acting pursuant to its legislatively delegated rulemaking authority, promulgated a five-step sequential evaluation process to determine whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court has summarized this process as follows:
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.
The ALJ determined that Lyons engaged in no substantial gainful activity since his alleged disability onset date of July 29, 2011. (R. at p. 14). Further, the ALJ found that Lyons suffers from the following severe impairments: "[f]ibromyalgia, sciatica status post sciatic notch fusion, depression, NOS [,] and anxiety." (R. at p. 14); 20 C.F.R. §§ 404.1520(c), 416.920(c). However, the ALJ found that Lyons's impairments did not meet or medically equal any impairment listed in 20 C.F .R. Part 404, Subpart P, Appendix 1. (R. at p. 15).
In accordance with 20 C.F.R. § 416.945, the ALJ assessed Lyons's "residual functional capacity"
(R. at p. 17).
Lyons's "past relevant work"
The briefs submitted by Lyons and the Commissioner place steps four and five of the SSA's sequential-evaluation process at issue. The Court need only discuss step four, in which the ALJ determines whether a claimant may perform previous work. This is because the ALJ had substantial evidence to conclude that Lyons could return to his previous relevant work as a cashier.
Three lines of reasoning support the ALJ's RFC determination and step-four conclusion that Lyons may work as a cashier. First, the cashier position is unskilled. Second, the ALJ's RFC finding and opinion, considered with the record, shows that substantial evidence supports his conclusions. Third, the ALJ properly discredited Lyons's treating sources' opinions because their conclusions are inconsistent with Lyons's medical record.
Cashiers are considered unskilled workers. The Dictionary of Occupational Titles ("DOT") lists cashiers with a Specific Vocational Preparation ("SVP") of 2. DOT at DICOT No. 211.462-010, 1991 WL 671840. SVP level 2 corresponds with an unskilled job.
Verbal mistakes do not change the fact that the DOT classifies cashiers at SVP level 2. The VE testified at Lyons's administrative hearing that Lyons worked "[as] a cashier. He's done this work at the light level, unskilled to semi-skilled." (R. at p. 47). Lyons pounced on the VE's statement, arguing that the ALJ's RFC finding tl)at Lyons could only work in unskilled positions precludes him from working as a cashier, since the VE stated that a cashier could be "semi-skilled." (ECF No. 15 at p. 5; R. at p. 47). But the VE's mistaken testimony that a cashier is a semi-skilled position does not change the DOT's classification of cashiers at SVP level 2 (unskilled). Therefore, a cashier is an unskilled position, meaning that Lyons's RFC—prescribing unskilled work—is consistent with Lyons again working as a cashier.
The ALJ's RFC determination is supported by substantial evidence. If the Court finds substantial evidence supporting the ALJ's findings, it must affirm even if it "would have decided the factual inquiry differently."
When determining an RFC, "the ALJ must consider all evidence before him."
Lyons argues that the ALJ's RFC determination, finding that he could perform unskilled light work with a sit-stand option every half hour, is not supported by substantial evidence. (ECF No. 15 at p. 5). Lyons refers the Court to the "breadth and quality of the record establishing [his] severe physical and mental impairments, as well as four treating sources providing multiple medical opinions of support." (ECF No. 15 at p. 5). There are many symptoms of physical and mental health problems referred to in Lyons's brief supporting his motion for summary judgment.
Lyons, at his administrative hearing, testified that "I used to read books like crazy" but that due to his lack of "concentration, I can't read anymore." (R. at p. 36). Lyons also talked about his lower back pain, rating it "above a 10" after he does "anything for 15 minutes, especially bending over or lifting." (R. at p. 38). After Lyons completes such a task, he stated that "he has to lay [sic] down." (R. at p. 38). Lyons added that he would feel lower back pain after he did "something strenuous." (R. at p. 38). When asked how he would define "strenuous," Lyons responded "Lifting, mowing the yard." (R. at p. 39).
The ALJ determined that Lyons's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms" but that Lyons's statements "are not entirely credible." (R. at p. 17). For instance, Lyons told his counselor, Ms. Verrengia, that he is "constantly on the computer," not once complaining to her about concentration loss when reading. (R. at p. 17). The ALJ further noted that Lyons told Dr. Schmidt, one of his physicians, that his remaining pain after sacroiliac-fusion surgery was a 3 on a scale of 1 to 10. (R. at p. 18). This is in stark contrast to Lyons's hearing testimony that his lower back pain is "above a 10." (R. at p. 38). Given this evidence, the ALJ had a sufficient basis to determine that Lyons's complaints regarding pain and loss of concentration are not credible.
Substantial evidence supports the RFC the ALJ assigned Lyons. The ALJ's opinion, in conjunction with the record, reveals that he crafted the RFC by considering Lyons's medical issues in conjunction with Lyons's abilities. For instance, the ALJ highlighted that despite Lyons's osteoarthritis in his hands, he still can play music on his keyboard "to an extent." (R. at p. 17). Recognizing that Lyons still possesses fingering ability because he plays the keyboard, the ALJ determined that Lyons could "perform the much more limited activity in [sic] punching keys on a cash register or computer." (R. at pp. 17-18).
Several other examples show the ALJ tailoring Lyons's RFC based on his medical problems. Lyons has asthma. (R. at p. 86). Lyons's RFC forbids him from working in positions that could expose him to "extremes in temperature." (R. at p. 17). Lyons testified during his hearing that "if I do anything strenuous, I have to lay [sic] down after like 15 minutes because I can't move." (R. at p. 35). Lyons's RFC prescribes "light work" with "an option for a change of position to sitting or standing . . . at intervals of about one half hour." Accounting for residual back pain that Lyons has, his RFC allows him to avoid vibration. (R. at 17-19). And Lyons's "moderate functional limitations" related to his mental health are recognized in his RFC because it limits his work to "tasks of a simple nature." (R. at 17-18). Lyons's RFC, as created by the ALJ, accounts for Lyons's physical and mental health issues listed in the record. Therefore, substantial evidence supports Lyons's RFC.
Typically, "greater weight should be given to the findings of a treating physician than to a [consulting] physician."
The ALJ properly ascribed less weight to Lyons's treating physicians and counselor due to inconsistent medical evidence. A form report dated April 12, 2013, by Dr. Kenneth Gold, Lyons's rheumatologist, conclusively stated that Lyons had no work capacity and had severe fibromyalgia. (R. at pp. 384-85). But Dr. Gold's form report contradicts notes from a more recent August 28, 2013 office visit, stating, in regards to Lyons's fibromyalgia, that he is "[d]oing extremely well." (R. at pp. 485-86).
Lyons's primary care physician, Dr. Ellen Berne, after having Lyons complete a social-security exam in February 2013, concluded "I don't think he can work at this time." (R. at pp. 358-59). The form accompanying the social-security exam was filled with boxes to check. (R. at pp. 349-54). Such forms are weak evidence.
On the mental-health front, the ALJ appropriately gave little weight to check-box reports completed by Dr. Manuel Reich and Kathleen Verrengia, MA. The Third Circuit considers check-box reports to be weak evidence.
The ALJ concluded that because Lyons's GAF score shows moderate functioning, it is inconsistent to indicate on check-box forms that Lyons has marked impairments, a lower level of mental functioning than the moderate level, in work-related skills. (R. at p. 18). While determining whether a moderate GAF score translates to either moderate or marked occupational limitations is likely an inexact science, there is enough evidence here for the ALJ to discount Dr. Reich's and Ms. Verrengia's reports due to their internal inconsistency. In addition, at Lyons's hearing, the ALJ personally observed that Lyons was "animated and gave no impression of depression." (R. at p. 19).
After discounting the inconsistent reports provided by Lyons's treating physicians, the ALJ properly accorded greater weight to state agency doctors' opinions. An ALJ may give greater credit to non-treating, non-examining physicians' opinions than treating physicians' opinions when their opinions conflict.
As for Lyons's mental-health capabilities, state agency employee Dr. Phyllis Brentzel, Psy.D., concluded that Lyons could perform "the basic mental demands of competitive work on a sustained basis." (R. at p. 96). Dr. Brentzel rated Lyons's social interaction, adaptation, and concentration and persistence qualities in the workplace as either moderately limited or not significantly limited. (R. at pp. 95-96). The ALJ gave substantial weight to Dr. Brentzel's opinion, noting that "it is consistent with the medical evidence." (R. at p. 19). Some medical evidence shows that Lyons is talkative with an appropriate, though sometimes anxious, affect. (R. at pp. 358, 451, 463, 466). Thus, the ALJ reasonably ascribed greater weight to Dr. Brentzel's opinion than Lyons's treating sources.
Therefore, the Court finds that: (1) Lyons's RFC, as determined by the ALJ, is backed by substantial evidence; and (2) substantial evidence shows that, at stage four, Lyons is not disabled and is capable of resuming his previous work as a cashier.
For the foregoing reasons, Lyons's motion for summary judgment (ECF No. 14) will be denied, the Commissioner's motion for summary judgment (ECF No. 16) will be granted, and the Commissioner's decision will be affirmed.
