# Miller v. Berryhill

> District Court, M.D. Pennsylvania · November 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10407960

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WENDY SUE MILLER, :
Plaintiff, :
: 3:17-CV-1564
V. : (JUDGE MARIANI)
: (MAGISTRATE JUDGE ARBUCKLE)
ANDREW SAUL, :
Commissioner of Social Security,’ :
Defendant.
MEMORANDUM OPINION
|. INTRODUCTION
Presently before the Court is Magistrate Judge Arbuckle’s Report and
Recommendation (“R&R”) (Doc. 18) recommending that the appeal of Plaintiff Wendy Sue
Miller from the decision of an Administrative Law Judge (“ALJ”), denying her application for
social security disability benefits, be denied. Miller has filed Objections (Docs. 19) with a
supporting brief (Doc. 20), to which Defendant filed a response (Doc. 21). For the reasons
that follow, the Court will overrule Miller's Objections and adopt the pending R&R.

‘ Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g),
Commissioner Andrew Saul is automatically substituted as the named defendant in place of the former
Acting Commissioner of Social Security, Nancy A. Berryhill. See Fed. R. Civ. P. 25(d) (“An action does not
abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending. The officer's successor is automatically substituted as a party’).

Il. ANALYSIS
A District Court may “designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit toa judge of the court proposed findings of fact and
recommendations for the disposition” of certain matters pending before the Court. 28 U.S.C.
§ 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's
Report and Recommendation, the District Court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection
is made.” /d. at § 636(b)(1)(C); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011);
M.D. Pa. Local Rule 72.3.
Plaintiff Wendy Sue Miller has raised two objections to Magistrate Judge Arbuckle’s
R&R. With respect to Miller's first objection, Miller argues that she meets the definition of
Listing 1.03 because “Plaintiff's testimony, and the record as a whole, clearly support a
finding that she is unable to ambulate effectively, as defined by the regulations.” (Doc. 20, at
4). Further, Miller argues that the ALJ and Magistrate Judge employed a “narrow definition of
ineffective ambulation.” (/d.). The Court disagrees.
Listing 1.03 requires: “[rleconstructive surgery or surgical arthrodesis of a major
weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to
effective ambulation did not occur, or is not expected to occur, within 12 months of onset.” 20
C.F.R. pt. 404, subpt. P., Appx. 1, § 1.03. Listing 1.00B2b, defines ineffective ambulation as
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individuals’ ability to independently initiate, sustain, or

complete activities. Ineffective ambulation is defined generally as having
insufficient lower extremity functioning to permit independent ambulation
without the use of a hand-held assistive device(s) that limits the functioning of
both upper extremities.
20 C.F.R. pt. 404, subpt. P., Appx. 1, § 1.00(B)(2)(b) (emphasis added). As the Magistrate
Judge explained, “[i]n order to show a claimant is entitled to benefits on the basis that a
Claimant's impairment, or combination of impairments, equals a Listing, the claimant must
present ‘medical findings equivalent in severity to aif the criteria for the one most similar
impairment.” (Doc. 18, at 14) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990).
Here, as the Magistrate Judge noted, “both parties agree that within a year of
Plaintiff's peroneal tendon repair surgery and knee surgery, Plaintiff was ambulating with a
straight cane.” (Doc. 18, at 16) (citing to Doc. 12, at 21; Doc. 14, at 7). Accordingly, because
the use of a cane does not limit both upper extremities, Miller does not satisfy al/ of the
criteria of the Listing. See Sullivan, 493 U.S. at 531.
Miller directs the Court to “Revised Medical Criteria for Determination of a Disability,
Musculoskeletal System and Related Criteria,” which Miller argues supports her proposition
that “using a two-handed assistive device, or, in fact, an assistive device of any kind, is not a
requirement for establishing ineffective ambulation . . . . The Listing applies to anyone who
cannot walk adequately.” (Doc. 20, at 4). In reviewing the source upon which Miller relies,
the Court notes that it specifically states:
[T]}wo commenters asked for clarification of the second sentence of 1.00B1 in
the NPRM (final 1.00B2b). They wondered why the definition would require
limitations to both upper extremities if a hand-held assistive device were

required for adequate ambulation. They also asked if a cane would qualify
under this section. Furthermore, would holding a device in one hand with only
minimal assistance of the other hand constitute functional limitations of both
upper extremities, or must the hand-held device require limitations of both
hands (i.e., crutches, walker, etc.).
Response: We believe that the sentence is clear in its intent that an individual
with one hand free while using an assistive device in walking would not meet
the definition if he or she were otherwise ambulating effectively as defined in
final 1.00B2b. As we repeatedly stress, the criteria expressed in the listings are
intended to define limitations that prevent any gainful activity. A claimant
requiring a cane or other device in only one hand to effectively ambulate might
be severely impaired and could possibly be allowed at a later step of the
sequential evaluation process, but he or she would not necessarily be unable
to perform any gainful activity.
66 Fed. Reg. 58010, 58026 (emphasis added). Here, because Miller's specific argument
relates to step three, and the record establishes that Miller uses a cane, Miller clearly does
not meet the requirements of Listing 1.03. As such, the Court finds no merit to Miller's claim
that the Magistrate Judge and ALJ erred in determining that substantial evidence supports a
finding that Plaintiffs condition does not meet the requirements of Listing 1.03.
With respect to Miller’s second objection, Miller argues that the ALJ, upheld by the
Magistrate Judge, erred in finding that substantial evidence supports the ALJ's residual
functional capacity (“RFC”) determination. (Doc. 20, at 5). Further, Miller argues that the ALJ
assigned too “little weight to both of the physical medical opinions of record,” referring to the
medical opinions from Dr. Bui and Dr. Telemeco. (/d.).
The Court agrees with the analysis set forth in the R&R. The Magistrate Judge
concluded that medical opinions from Dr. Bui and Dr. Telemeco were given proper weight by

the ALJ. (Doc. 18, at 19). With respect to Dr. Bui’s opinion, the ALJ concluded that his
opinion — that Miller is capable of no work — was not consistent with the record on the whole,
a conclusion that follows after the ALJ’s extensive analysis of the record. (/d.). Further, with
respect to Dr. Telemeco’s opinion, Dr. Telemeco is not considered an “acceptable medical
source” under the regulation, and thus “his opinion was not entitled to any special
consideration.” (/d. at 18; Doc. 8-2, at 28). Moreover, the ALJ concluded, citing to specific
evidence, that Dr. Telemeco’s opinion — that claimant was capable of no work — was not
supported by the record on the whole and thus entitled to little weight. (Doc. 8-2, at 28). In
sum, as the Magistrate Judge concluded, “the ALJ’s assignment of weight is supported by
substantial evidence.” (/d. at 20). The Court, therefore, finds no basis for overruling the
Magistrate Judge’s findings.
Ill. CONCLUSION
For the reasons set forth above, upon de novo review of the R&R (Doc. 18), the
Court will adopt the R&R, Plaintiff's appeal will be denied, and the Commissioner of Social
Security's decision will be affirmed. An appropriate Order will be filed simultaneously with
this Memorandum Opinion.
(FX, LMU
Rober.D-Marfiani
United States District Court Judge

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