ROBERT C. MITCHELL, Magistrate Judge.
Presently before the Court for disposition are cross motions for summary judgment.
On December 3, 2012, Charles Richard Koslovic Jr., by his counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the Commissioner's final determination disallowing his claim for Supplemental Security Income benefits under Sections 1614 and 1631 of the Act, as amended, 42 U.S.C. §1381 cf. For the reasons set forth below, the plaintiff's motion for summary judgment (ECF 11) will be denied; the defendant's motion for summary judgment (ECF 13) will be granted and the determination of the Commissioner will be affirmed.
The instant application for Supplemental Security Income Benefits was filed on June 4, 2009 (R.172-178). On September 1, 2009, benefits were denied (R.89-93). On October 8, 2009, the plaintiff requested a hearing (R.94) and pursuant to that request a hearing was held on March 30, 2011 and continued to July 11, 2011 (R.30-80). In a decision filed on August 17, 2011, an Administrative Law Judge denied benefits (R.12-25). On October 15, 2012, the Appeals Council affirmed the prior determination (R.1-3). The instant complaint was filed on December 3, 2012.
In reviewing an administrative determination of the Commissioner, the question before any court is whether there is substantial evidence in the agency record to support the findings of the Commissioner that the plaintiff failed to sustain his/her burden of demonstrating that he/she was disabled within the meaning of the Social Security Act.
It is provided in 42 U.S.C. Section 405(g) that:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
The purpose of the Supplemental Security Income Program is to provide additional income to persons of limited resources who are aged, blind or disabled persons. 42 U.S.C. §1381;
As set forth in 20 C.F.R. § 416.905(a) disability is defined as:
20 C.F.R. § 416.907.
For purposes of determining whether or not the plaintiff met the eligibility requirements, certain evidence was considered by the Commissioner.
At the hearing held on March 30, 2011 and continued to July 11, 2011 (R.30-80), the plaintiff appeared with counsel (R.40) and testified that he was born on February 21, 1971 (R.45); that he completed high school (R.48); that he worked in heavy construction (R.48); that he last worked in 2004 (R.52) and that he is receiving public assistance (R.46).
The plaintiff also testified that he experiences back, neck and leg pain (R.57); that his back has gotten worse (R.51); that he takes pain medication and attends therapy (R.53,54-55); that he can sit for about twenty minutes (R.57); that he spends most of his day in bed and occasionally cannot get out of bed (R.58, 69); that he does not perform any household chores (R.60); that in 2003 he was diagnosed with a bi-polar disorder (R.62) and that he experiences anxiety attacks and anger management problems (R.62).
At the hearing a vocational expert was called upon to testify (R.76-79). He characterized the plaintiff's past work as heavy skilled labor (R.77). When asked to assume an individual of the plaintiff's age, education and past work experience who is limited to sedentary work activity the witness responded that such an individual could not perform the plaintiff's prior work but would be capable of participating in a large number of other gainful activities (R.78). However, he further testified that if the individual was "off task" at least fifteen to twenty percent of the workday, he could not be gainfully employed (R.78). The same conclusion could be drawn if the individual had to take several unscheduled breaks during the day (R.79).
In addition, certain other evidence was considered.
The plaintiff was approved for return to work as a brick-layer on January 23, 2002 (R.467).
The plaintiff received treatment at the University of Pittsburgh Physicians between January 23, 2002 and May 15, 2002. On the latter date it was reported that the plaintiff had minimal scaphoid tenderness, was back to work full-time and had "great" range of motion in his wrist and fingers (R.453-456).
In a report of an MRI performed on August 21, 2001 a small L4-L5 disc bulge was observed (R.458).
In a report from the Western Pennsylvania Hospital dated October 8, 2002, following an evaluation for left-sided low back pain, physical therapy and anti-inflammatory agents were recommended (R.459-462).
X-rays of both of plaintiff's wrists taken on December 8, 2003 did not disclose a fracture or dislocation (R.469-470).
In a report dated December 30, 2003, Dr. B.L. Rottschaefer noted chronic lumbosacral strain and cervical strain which was becoming worse with time, as well as moderate depression. The plaintiff's depression was said to not be limiting and the doctor observed that the plaintiff could not physically perform his prior work as a mason (R.472-480).
The plaintiff was treated at the East Suburban Orthopedic Associates between December 8, 2003 and January 15, 2004 for a wrist fracture which healed with good alignment. It was concluded that he could return to his normal activities (R.482-483).
The plaintiff was treated by Dr. Rottschaffer between December 7, 2001 and February 20, 2004 for a right scaphoid fracture and lumbosacral and cervical strain as well as a wrist fracture. Medication and exercise were prescribed (R.485-522).
The plaintiff was treated at the University of Pittsburgh Physicians between January 18, 2008 and November 14, 2008. He had a healed scaphoid fracture with a screw in place, ulnar impact syndrome and right wrist pain (R.241-266).
The plaintiff was treated at West Penn Hospital between April 17, 2009 and April 20, 2009 for managements of multiple abscesses. The latter were drained and treated with antibiotics (R.269-292).
The plaintiff was treated at the Creighton Medical Center between September 17, 2007 and July 10, 2009 for MRSA abscesses, hepatitis C, chronic back pain and allergies (R.293-324).
In a residual functional report completed on August 31, 2009, it was noted that the plaintiff could occasionally lift one hundred pounds, frequently lift fifty pounds and stand, walk or sit for about six hours (R.82-88).
In a psychiatric review completed on August 31, 2009, Douglas Schiller, Ph.D. noted a mild anxiety disorder (R.325-337).
The plaintiff had various examinations conducted between April 17, 2009 and October 6, 2010 for abscesses, cervical, lumbar, ankle and wrist strains (R.361-398).
The plaintiff was treated at the Alli-Kiski Medical Center between February 15, 2011 and February 19, 2011 for low back pain following a motorcycle accident (R.401-405).
In a note of treatments on February 17, 2011 and March 7, 2011, Robert A. Biddle, D.C. diagnosed lower back pain and performed manipulations (R.400).
The plaintiff was treated by Dr. Mir between August 27, 2008 and April 15, 2011 for arthritis and low back problems. Medication was prescribed (R.338-360).
The plaintiff was treated at the New Kensington Family Health Center between November 10, 2010 and May 25, 2011. An MRI revealed lumbar facet hypertrophy and disc bulging as well as cervical degeneration. Anxiety was also diagnosed and treated (R.406-430).
In a report of an evaluation conducted on May 31, 2011 at Milestone Centers, Inc. a diagnosis of bipolar II disorder and panic disorder was made (R.431-446).
In a residual functional capacity evaluation completed on June 23, 2011, depression and anxiety are noted. In addition it was reported that the plaintiff could walk, stand or sit for fifteen minutes, and frequently lift ten pounds (R.447-452).
A report covering outpatient treatment at Milestone between the period from May 31, 2011 and September 15, 2011 notes depression, anxiety and a bipolar and panic disorder (R.523-540).
Based on the evidence presented, the Commissioner determined:
Credibility determinations are resolved by the Commissioner.
Summary judgment is appropriate where there are no material factual issues in dispute and the movant is entitled to judgment as a matter of law.
An appropriate Order will be entered.
AND NOW, this 30
