Donna Prokopick v. Commissioner of Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1553
DONNA PROKOPICK,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 06-cv-00429)
District Judge: The Honorable Edwin M. Kosik
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges
(Opinion Filed: April 4, 2008 )
OPINION
BARRY, Circuit Judge
Donna Prokopick appeals from an order of the District Court affirming the
decision of the Commissioner of Social Security denying her disability insurance benefits.

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The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and we have
jurisdiction under 28 U.S.C. § 1291. We will affirm.
I.
Because we write primarily for the parties, we recite only those facts relevant to
our disposition of the appeal.
Prokopick began experiencing abdominal pain of an unknown origin in the mid-
1980’s. She had several exploratory surgeries over the years, but they were all
unsuccessful in eliminating her pain. She underwent one such surgery on September 27,
1999, during which the surgeons untwisted small bowel loops and removed a six-inch
section of her small bowel. The day after that surgery, however, she went into
hypotensive shock as a result of internal bleeding. She underwent additional surgeries
over the course of the next few days and, for a time, required a ventilator to maintain her
breathing. Her condition eventually stabilized and she was discharged from the hospital
approximately ten days after the initial surgery.
Prokopick did not feel well enough to return to her job as a unit clerk at a hospital
following the September 1999 surgery. She attempted to work as a secretary at a doctor’s
office three days per week for a two-month period in the summer of 2000, but left due to
chronic pain and fatigue. She filed an application for disability benefits on January 17,

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“Fibromyalgia syndrome is a common and chronic disorder characterized by1
widespread muscle pain, fatigue, and multiple tender points. . . . Tender points are
specific places on the body—on the neck, shoulders, back, hips, and upper and lower
extremities—where people with fibromyalgia feel pain in response to slight pressure.”
National Institute of Arthritis and Musculoskeletal and Skin Diseases, National Institutes
of Health, Questions and Answers About Fibromyalgia, http://www.niams.nih.gov/
Health_Info/Fibromyalgia/default.asp (last visited March 17, 2008). Its cause is unknown
and there is no cure. Id.
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2003, alleging disability as of September 27, 1999 due to chronic fatigue, fibromyalgia,1
and abdominal pain.
An administrative law judge (“ALJ”) conducted a hearing on March 3, 2004, at
which he heard testimony from Prokopick; Dr. Leo Corazza, an impartial medical expert;
and Francene Tearpock-Martini, a vocational expert. Prokopick testified that she has pain
“all over” her body as a result of the fibromyalgia. She said that the near-constant pain is
particularly hard to deal with because it makes it difficult for her to be active during the
day and also makes it difficult for her to sleep at night. She stated, “[while] I was
working three days out of the week, the next day I would – I’d be wiped out. I’d have to
lay on the couch, go on to the recliner, put my legs up, lay with, with my legs up toward
my belly because of the abdominal pain and I was very exhausted.” (App. at A380.) She
told the ALJ that she was taking Percocet and Darvocet to help ease her symptoms, but
that the drugs make her groggy and constipated.
Prokopick submitted into evidence a residual functional capacity questionnaire
completed by Dr. Eugene Gorski, her treating physician dating back to approximately

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1996, which stated that she is only capable of sitting for 15 minutes at a time before she
needs to stand up and that she is only capable of standing for between 15 and 20 minutes
before she needs to sit down. Dr. Gorski checked a box on the form indicating that her
condition prevents her from performing even a “low stress” job.
The ALJ evaluated her claim under the five-step process set forth in 20 C.F.R. §
404.1520 and concluded that the claim failed at step five based on his finding that
Prokopick was capable of performing certain types of sedentary jobs that were available
to her in large numbers in the national economy. Prokopick appealed the ALJ’s denial to
the District Court and the matter was referred to a magistrate judge for a report and
recommendation (“R&R”). The magistrate judge issued an R&R that the matter be
remanded to the Commissioner for further consideration of the medical evidence,
determining that the ALJ had given undue weight to the testimony of Dr. Corazza, a non-
treating physician, and insufficient weight to the opinion of Dr. Gorski, the treating
physician. Neither party objected to the R&R and the District Court adopted it in full on
February 4, 2005.
The ALJ held a supplemental hearing on July 20, 2005. Prokopick testified that
her symptoms were essentially the same as they were in 2004, but that she felt “a little
worse” physically as far as the pain and exhaustion were concerned. (App. at A535.) The
ALJ also heard testimony from Dr. John Menio, an independent medical expert, and
Calvin Anderson, a vocational expert. Dr. Menio testified that he had reviewed all of

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Creatine Phosphokinase (“CPK”) is “an enzyme found mainly in the heart, brain and2
skeletal muscle. . . . When the total CPK level is very high, it usually means there has
been injury or stress to the heart, the brain, or muscle tissue.” National Library of
Medicine, National Institutes of Health, MedlinePlus Medical Encyclopedia: CPK,
http://www.nlm.nih.gov/medlineplus/ency/article/003503.htm (last visited March 17,
2008).
The ALJ also found that her claim failed at step four because she had the residual3
functional capacity to perform her past work as a secretary/receptionist. Prokopick argues
that this finding is at odds with the finding made by the ALJ in 2004 that she was not
capable of performing her past work. We need not address this issue, however, because,
as explained below, we conclude that the ALJ’s finding at step five is supported by
substantial evidence.
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Prokopick’s medical records and believed that she was capable of performing sedentary
work with a sit/stand option. He stated that fibromyalgia is “not disabling in the majority
of the cases” and that “none of [his fibromyalgia] patients are severe enough to require
them to stop working.” (Id. at A527, A529.) He based his conclusion as to Prokopick’s
ability to work, in part, on the fact that some of his patients who are suffering from
fibromyalgia have markedly higher CPK levels than she has and are still capable of2
working.
The ALJ evaluated anew Prokopick’s claim under the five-step process mandated
by 20 C.F.R. § 404.1520 and once again denied her claim, finding her “testimony not
fully credible to the extent that total disability is alleged” (App. at A397) and determining
that she is capable of performing certain types of sedentary jobs that are available to her
in large numbers in the national economy. Prokopick appealed pursuant to 42 U.S.C. §3
405(g) and the District Court again referred the matter to a magistrate judge. The

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magistrate judge again recommended remand, concluding that the ALJ’s decision was not
supported by substantial evidence, but the District Court declined to adopt the R&R and
affirmed the final decision of the Commissioner. This timely appeal followed.
II.
We apply the same standard of review used by the District Court: we exercise
plenary review over the ALJ’s application of the law, and review the ALJ’s findings of
fact to determine if they are supported by “substantial evidence.” Poulos v. Comm’r of
Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. It is less
than a preponderance of the evidence but more than a mere scintilla.” Jones v. Barnhart,
364 F.3d 501, 503 (3d Cir. 2004) (citations and quotations omitted). It is a highly
deferential standard of review. Id.
III.
Prokopick argues, first, that the ALJ failed to give appropriate weight to the
medical opinion of her treating physician, Dr. Gorski, who stated that she is unable to
perform even a low stress job. We disagree for several reasons. First, the ultimate
determination of disability is a legal conclusion reserved exclusively for the ALJ. 20
C.F.R. § 404.1527(e)(1) & (3). While a treating physician’s opinion is certainly evidence
of a patient’s ability to work, it is neither conclusive nor binding on the ALJ. Second, the
ALJ was entitled to accord lesser weight to Dr. Gorski’s opinion because it was provided

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in a check-box form and he did not provide any reasons in support of his various
conclusions. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (declaring that
“[f]orm reports in which a physician’s obligation is only to check a box or fill in a blank
are weak evidence at best”). Third, Dr. Gorski’s answers on the form were internally
inconsistent. Although he stated in response to one question that Prokopick was
incapable of performing even a low stress job, he stated in response to another question
that her pain was “seldom” severe enough to interfere with her attention and
concentration. (App. at A352.)
Prokopick next contends that the ALJ should not have considered Dr. Menio’s
testimony because it was unreliable. We are similarly unpersuaded by this argument. We
find little evidence in the record to support Prokopick’s assertion that Dr. Menio gave
undue weight to Dr. Corazza’s testimony from the first hearing in forming his opinion in
the matter. To the contrary, Dr. Menio specifically identified the reports of Drs. Gorski
and Chikarmane when the ALJ asked him to identify which exhibits he had relied on in
reaching his conclusions and, on questioning on the issue by Prokopick’s attorney,
expressly stated that his testimony was based on a review of “the entire medical records.”
(Id. at A522.) We also find it neither improper nor unusual for Dr. Menio to have
compared Prokopick’s symptoms with the symptoms of patients in his own practice who

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On this record, we are unable to agree with Prokopick that it was “both medically4
and legally incorrect” for Dr. Menio to rely on her CPK levels in assessing the intensity of
her pain. Prokopick’s argument is premised entirely on the absence of fibromyalgia from
a medical website listing common uses for CPK tests and is plainly insufficient to rebut
the testimony of a medical expert. Furthermore, because we conclude that the ALJ was
justified in relying on Dr. Menio’s testimony, we need not address Prokopick’s argument
that the ALJ’s improper reliance on Dr. Menio’s testimony caused him to pose an
improper hypothetical question to the vocational expert.
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also have fibromyalgia. Moreover, his statement that fibromyalgia is “not disabling in4
the majority of cases” (Id. at A527) appears to be a correct statement. See, e.g., Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996) (Posner, J.) (noting that “[s]ome people may
have such a severe case of fibromyalgia as to be totally disabled from working, but most
do not”).
Finally, we are satisfied that the ALJ properly evaluated Prokopick’s subjective
complaints of pain. Under the regulations, an ALJ may not base a finding of disability
solely on a claimant’s statements about disabling pain; the ALJ must evaluate “the extent
to which [a claimant’s] symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). An ALJ is
permitted to reject a claimant’s subjective testimony as long as he or she provides
sufficient reasons for doing so. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d
Cir. 1999); S.S.R. 96-7p, 1996 WL 374186. Here, the ALJ considered Prokopick’s
subjective complaints together with the entire record, including all of the medical reports,
and ultimately concurred with Dr. Menio’s assessment that her condition was not severe

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enough to prevent her from performing certain types of sedentary work. The ALJ
sufficiently explained his reasons for finding Prokopick’s complaints of pain overstated,
and we agree with the District Court that that conclusion is supported by substantial
evidence.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

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