MEMORANDUM

JAMES M. MUNLEY, District Judge.

Background

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Dawn M. Schlagle's claim for social security disability insurance benefits and supplemental security income benefits. For the reasons set forth below we will affirm the decision of the Commissioner denying Schlagle's applications for disability insurance benefits and supplemental security income benefits.

On January 7, 2008, Schlagle filed protectively1 an application for disability insurance benefits and an application for supplemental security income benefits. Tr. 50, 87-93 and 109.2 On July 17, 2008, the Bureau of Disability Determination3 denied Schlagle's applications. Tr. 52-60. On August 28, 2008, Schlagle requested a hearing before an administrative law judge. Tr. 61. After about 11 months had passed, a hearing before an administrative law judge was held on November 18, 2009. Tr. 25-48. On January 20, 2010, the administrative law judge issued a decision denying Schlagle's applications. Tr. 13-20. On March 5, 2010, Schlagle requested that the Appeals Council review the administrative law judge's decision and on January 14, 2011, the Appeals Council concluded that there was no basis upon which to grant Schlagle's request for review. Tr. 1-5. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Schlagle then filed a complaint in this court on February 24, 2011. Supporting and opposing briefs were submitted and the appeal4 became ripe for disposition on July 19, 2011, when Schlagle filed a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Schlagle met the insured status requirements of the Social Security Act through December 31, 2010. Tr. 14-15, 98 and 109.

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

Schlagle was born in the United States on December 30, 1966. Tr. 19, 28, 87, 109 and 203. Schlagle has the equivalent of a high school education, and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 30, 112, 117 and 230. Schlagle completed 12 years of formal education but did not graduate from high school. Tr. 230. Schlagle completed training to become a certified nursing assistant in 1997 and obtained a General Equivalency Diploma in 2007. Tr. 117. During her elementary and secondary schooling Schlagle attended regular education classes. Tr. 117.

Schlagle's past relevant employment5 was as a certified nursing assistant which was described by a vocational expert as semi-skilled, medium work, as generally performed in the economy and very heavy work6 as actually performed by Schlagle.7 Tr. 44.

Schlagle's history of employment and earnings spans 19 years. Records of the Social Security Administration reveal that Schlagle had earnings in the years 1985 ($1845.03), 1986 ($130.00), 1987 ($281.75), 1989 ($1676.14), 1990 ($6193.21), 1991 ($4547.73), 1993 ($1820.06), 1995 ($862.01), 1996 ($6912.34), 1997 ($15097.30), 1998 ($12327.80), 1999 ($10331.30), 2000 ($17572.50), 2001 ($27297.56), 2002 ($26843.47), 2003 ($17696.37), 2004 ($17590.47), and 2005 ($13810.75). Tr. 99. Schlagle's total earnings were $182,843.53. Id. Schlagle has not worked since September 6, 2005. Tr. 31.

Schlagle claims that she became disabled on September 13, 2007,8 because of degenerative disc disease, low back pain and depression. Tr. 112. She also contends that she cannot sit or stand for very long and that the medications which she takes make her drowsy. Id. The impetus for the alleged disabling impairments was a work injury sustained on August 28, 2005. Tr. 113. Schlagle testified during the administrative proceedings that she received worker's compensation benefits for that alleged work injury up until May of 2007. Tr. 31.

STANDARD OF REVIEW

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) ("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) ("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

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 (1988) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff must demonstrate an "inability to engage in 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. § 432(d) (1) (A). Furthermore,

42 U.S.C. § 423(d) (2) (A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,9 (2) has an impairment that is severe or a combination of impairments that is severe,10 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,11 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.12

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 ("`Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

DISCUSSION

The administrative law judge at step one of the sequential evaluation process found that Schlagle had not engaged in substantial gainful work activity since September 13, 2007, the alleged disability onset date. Tr. 15. The administrative law judge noted that "[a] printout of [Schlagle's] earnings record shows that her last reported wages were in calendar year 2005 in the amount of $13,810.75 . . . and the claimant's hearing testimony revealed that she has not worked since [that] time." Id.

At step two of the sequential evaluation process, the administrative law judge found that Schlagle had the following severe impairments: "chronic back pain, degenerative disc disease in her lumbar spine13 and depressive disorder not otherwise specified." Tr. 16.

At step three of the sequential evaluation process the administrative law judge found that Schlagle's impairments did not individually or in combination meet or equal a listed impairment. Id.

At step four of the sequential evaluation process the administrative law judge found that Schlagle could not perform her prior relevant work as a certified nursing assistant but that she had the "residual functional capacity to lift up to 10 pounds, stand and walk 4 hours in an 8-hour workday and sit about 6 hours in an 8-hour workday. She may occasionally use ramps and climb stairs but should never climb ladders, ropes or scaffolds. She could occasionally balance, stoop, kneel, crouch and crawl. She must avoid concentrated exposure to extreme cold, humidity, vibration, fumes, odors, dust, gases, poor ventilation, hazardous machinery and unprotected heights. She is limited to occupations requiring no more than simple, routine, repetitive tasks not performed in a fast-paced production environment and involving only simple, work-related decision[s], and in general relatively few workplace changes." Tr. 16-19. In setting this residual functional capacity, the administrative law judge relied on the opinion of Elizabeth Kamenar, M.D., who reviewed Schlagle's medical records on behalf of the Bureau of Disability Determination. Tr. 192-198. Dr. Kamenar concluded that Schlagle had the physical exertional abilities to engage in a limited range of light work consistent with the administrative law judge's determination.14 Id.

The administrative record in this case is 381 pages in length, primarily consisting of medical and vocational records. Schlagle argues that the administrative law judge failed to properly evaluate the medical evidence and her subjective complaints.

We have thoroughly reviewed the record in this case and find no merit in Schlagle's arguments. The administrative law judge did an adequate job of reviewing Schlagle's vocational history and medical records in his decision. Tr. 13-20. Furthermore, the brief submitted by the Commissioner thoroughly reviews the medical and vocational evidence in this case. Doc. 7, Brief of Defendant. Because the administrative law judge adequately reviewed the medical evidence in his decision we will only comment on a few items.

Initially we will note that the administrative law judge rejected the opinions of Raymond J. Kraynak, D.O., and Mahmood Nasir, M.D., Schlagle's treating physicians. The opinions of those two physicians support a finding of total disability. However, we are satisfied that the administrative law judge gave an adequate explanation for rejecting the opinions of the treating physicians. From our review of the administrative record there is a total lack of objective radiological and electrodiagnostic medical findings supporting the treating physicians' opinions.

Schlagle alleged that she suffered a work-related injury to her low back on August 28, 2005. Tr. 172. At the time of the incident Schlagle was living and working as a certified nursing assistant in the state of Ohio. After this incident, Schlagle on September 7, 2005, commenced chiropractic treatment with Maziar Nejadfard, D.C., located in Vermilion, Ohio. Tr. 374. Subsequently, Schlagle had an MRI of the lumbar spine performed on October 18, 2005. Tr. 290 and 374. The MRI revealed the following: "The anatomic alignment of the vertebral bodies is normal. The vertebral body heights and marrow signal are normal. There are no findings that suggest an occult fracture. There is no anterior, extradural15 defect that causes significant central canal, lateral recess or neural foramen impingement." Tr. 290-291 and 332. The MRI was interpreted by Joseph A. Schoenberger, M.D., a radiologist. Id.

For some reason in or about June, 2006, Dr. Schoenberger was asked to review the MRI again by either Dr. Nejadfard or Joseph Carter, one of Schlagle's primary care physician, located in Breckville, Ohio. Tr. 290. Schlagle moved to Pennsylvania in or about June, 2006. As a result of reviewing the MRI scan a second time, Dr. Schoenberger was more blunt in his interpretation of the MRI. Id. He stated as follows: "At the request of the referring clinician, examination was reviewed again. The lumbar spine MRI is unremarkable, though there may be very early minimal loss of T2 signal in the L4-5 intervertebral disc.16 However, no disc protrusions, bulges or herniations are evident." Id. (Emphasis added.)

On September 12, 2006, Schlagle had a second MRI of the lumbar spine performed at the request of Dr. Kraynak. Tr. 163. The findings of that MRI were as follows: "There is partial dessication of the L4-5 disc without narrowing of the disc.17 There is subtle disc bulging. There is probably some very subtle disc bulging in the T12-16. L1 and L1-2 discs as well. No deformity of the conus is seen.18 No compromise of the spinal canal or neural foramen is identified. No disc protrusions or extrusions are seen. The sagittal images do suggest a mild scoliosis."19 Id.

Dr. Kraynak referred Schlagle to Maria L. Vivino, M.D., for a second opinion regarding Schlagle's low back pain. Tr. 175. On March 3, 2007, Schlagle told Dr. Vivino that on the date of the work injury she was "standing by [a] nursing home resident with her knees slightly bent when the resident suddenly aimed a punch towards her left breast. To avoid the intended punch, she shifted her trunk to the right, As soon as she did the latter maneuver, she immediately experienced a pull over the right side of her lower back and subsequently a constant sharp burning pain[.]" Tr. 175. Dr. Vivino in the report of her examination of Schlagle stated that electromyography and nerve conduction velocity (EMG/NCV) studies performed in October, 2006, were unremarkable. Tr. 176. After conducting a physical examination of Schlagle, Dr. Vivino's impression was that Schlagle suffered from chronic low back pain radiating to the lower extremity of an unknown etiology but likely musculoskeletal; bilateral sacroiliitis; she could not rule out sciatica; right lower extremity paresthesia in the L5-S1 distribution but with no evidence of lumbosacral radiculopathy on EMG/NCV studies; and intermittent bowel and bladder incontinence of unknown etiology. Tr. 178.

In a letter dated September 17, 2008, to Schlagle's attorney, Dr. Nasir stated as follows: "The MRI of the lumbar spine reveals a partial desiccation of the L4-L5 disc with subtle disc bulging. She also has disc bulging at T12-L1 and L1-L2. Her lower EMG was normal. Her treatment consists of [by mouth] narcotic analgesia and intermittent paravertebral facet joint nerve blocks, which result in pain relief. She is seen in the office every eight weeks to three months for evaluation. She is currently taking Neurontin, Dilaudid and Lidoderm Patch for her chronic back pain." Tr. 274. Dr. Nasir as previously stated was of the opinion that Schlagle was totally disabled. Id.

The record reveals that Dr. Kraynak treated Schlagle with narcotic pain medications and that Dr. Nasir administered numerous epidural steroid injections. There is no indication that either physician recommended more invasive treatment, such as lumbar back surgery.

The opinions of the treating physicians appear to be primarily based on Schlagle's subjective complaints. There were some positive straight leg raise tests. However, as noted radiographs did not confirm any disc herniations or neural foraminal narrowing.

In finding that Schlagle was not disabled, the administrative law judge as stated above relied on the opinions of the state agency psychologist and the state agency physician, who reviewed Schlagle's medical records. The administrative law judge's reliance on those opinions was appropriate. See Chandler v. Commissioner of Soc. Sec., ___ F.3d. ___, 2011 WL 6062067 at *4 (3d Cir. Dec. 7. 2011) ("Having found that the [state agency physician's] report was properly considered by the ALJ, we readily conclude that the ALJ's decision was supported by substantial evidence[.]").

The administrative law judge appropriately took into account Schlagle's physical and mental limitations in the residual functional capacity assessment.

The administrative law judge observed Schlagle testify and determined that her statements concerning the intensity, persistence and limiting effects of her symptoms were not credible to the extent that they were inconsistent with the ability to perform a limited range of unskilled, sedentary work. Tr. 18. The administrative law judge was not required to accept Schlagle's claims regarding her physical and mental limitations. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983) (providing that credibility determinations as to a claimant's testimony regarding the claimant's limitations are for the administrative law judge to make). It is well-established that "an [administrative law judge's] findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since [the administrative law judge] is charged with the duty of observing a witness's demeanor . . . ." Walters v. Commissioner of Social Sec., 127 f.3d 525, 531 (6th Cir. 1997); see also Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991) ("We defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess the witness credibility."). Because the administrative law judge observed Schlagle when she testified at the hearing on November 18, 2009, the administrative law judge is the one best suited to assess the credibility of Schlagle.

Our review of the administrative record reveals that the decision of the Commissioner is supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g) affirm the decision of the Commissioner.

An appropriate order will be entered.

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

1. The Clerk of Court shall enter judgment in favor of the Commissioner and against Dawn M. Schlagle as set forth in the following paragraph.

2. The decision of the Commissioner of Social Security denying Dawn M. Schlagle disability insurance benefits and supplemental security income benefits is affirmed.

3. The Clerk of Court shall close this case.