Cassandra Grogan v. Commissioner Social Security

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, Chief Judge, FUENTES and JORDAN, Circuit Judges. Total Pages: 14. Judge: JORDAN Authoring.

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Date Filed: 01/23/2012

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2451
_____________
CASSANDRA GROGAN,
Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 10-cv-3162)
District Judge: Hon. John R. Padova
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2012
Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.
(Filed: January 23, 2012)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Cassandra Grogan appeals from an order of the United States District Court for the
Eastern District of Pennsylvania affirming the decision of an Administrative Law Judge
(“ALJ”) to deny Grogan’s claims for disability insurance benefits and supplemental
security income. For the following reasons, we will affirm.

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I.

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Background
A.

Facts
1.

Relevant Vocational and Functional Background

Grogan is a forty-one year old female who was thirty-six at the time she alleged
disability in this case. From 1998 to April 2001, Grogan worked as a Certified Nurse’s
Assistant, and, in 2006, an ALJ granted her disability status for a closed period beginning
April 30, 2001 and ending August 1, 2005. 1 After her disability period ended, Grogan
worked for a debt collection bureau, making phone calls and doing data entry until
October 2006, when she stopped working because of her alleged current disability. Her
impairments involve pain, back abnormalities, IBS, anxiety, depression, bipolar disorder,
and post-traumatic stress disorder (“PTSD”).
2.

Physical Health Treatment

Grogan’s medical records include a history of back and gastrointestinal (“GI”)
problems. 2 Several magnetic resonance imaging (“MRI”) scans show that Grogan suffers
from a back abnormality. In June 2005, Grogan’s pain management specialist, Dr.
Thomas Zavitsanos, prescribed a series of steroid injections to alleviate pain Grogan
1

Grogan’s prior claims stemmed from degenerative disc disease, irritable bowel
syndrome (“IBS”), and depressive disorder.
2
Grogan’s treatment records for her IBS are limited. In March 2004, Grogan saw
a gastroenterologist, Dr. Mark Tanker. Tanker observed that Grogan had been diagnosed
with IBS in the past but had had no GI evaluation for six or seven years. Tanker
prescribed Bentyl and Zantac and recommended that Grogan increase her fiber intake.
During the period at issue, Grogan made numerous GI complaints to her treating
physicians. She also visited Dr. Alexander Harmatz, a GI specialist, on or prior to
October 30, 2007. Although both Tanker and Harmatz ordered laboratory tests, the
results of those tests are not in the record.
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complained of having in her back. Grogan reported significant, but not complete, pain
reduction. She did not return to see Zavitsanos until July 2007.
In the interim, she was attended by her primary care physician, Dr. Gerald
Skobinsky. Skobinsky’s care from March 2006 to July 2007 involved general treatment
for earaches and cold symptoms, as well as prescriptions for pain and GI medications.
Upon Grogan’s return visit to Zavitsanos on July 23, 2007, Zavitsanos reported no
changes and again recommended a series of steroid injections. Grogan acknowledged
“definite but transient improvement” in pain after receiving her first injection (App. 2 at
322), 3 and “60% to 70% pain relief for 6 to 8 weeks” after her second injection, (App. 2
at 399).
In March 2008, Zavitsanos reported no change in reflexes but noted a diminished
capacity for physical sensation. He recommended that Grogan consult a neurosurgeon,
which she had failed to do upon his earlier suggestion because she had “a lot of things
going on” and was dealing with household issues. (App. 2 at 399.) An MRI in April
2008 showed no changes from prior tests.
3.

Mental Health Treatment

On June 25, 2007, Grogan underwent an evaluation with her treating psychiatrist,
Dr. Polina Stolyarova, who diagnosed Grogan with major depression and PTSD.
Stolyarova gave Grogan a global assessment of functioning (“GAF”) score of 60,
indicating moderate difficulty functioning.

Stolyarova’s treatment notes indicate

continued depression and anger issues, but also indicate appropriate appearance,
3

“App. 2” refers to appendix volume 2 of the record.
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cooperative behavior, intact thought processes, and no suicidal plans or ideations.
Stolyarova also noted improvement during this period.
On May 13, 2008, Grogan underwent a second yearly evaluation with Stolyarova,
who diagnosed Grogan with bipolar disorder but noted that Grogan was responding well
to medication. Stolyarova assigned Grogan a GAF score of 62, indicating more mild
symptoms.
On October 2, 2008, Grogan was involuntarily committed to a hospital for
approximately one week after she took an overdose of her medication in a reported
suicide attempt.

Upon hospital intake, Grogan was assigned a GAF score of 20,

indicating some danger of hurting herself.
Grogan returned to treatment in January 2009 with a new psychiatrist Dr. E.
Karzova, who reported that, although Grogan was depressed, she was attentive and did
not exhibit any suicidal plans or ideations. Grogan declared that she felt a 60 percent
improvement with medication. Karzova recommended continued psychotherapy and
assigned Grogan a GAF score of 65, indicating improvement. In February 2009, Grogan
reported “feeling a little better,” and Karzova noted a “slight improvement.” (Tr. at
448.) 4
4.

Opinion Evidence

Several medical opinions regarding Grogan’s ability to function were submitted in
connection with her application for benefits. First, Skobinsky submitted a medical source
statement in which he checked boxes indicating that Grogan could occasionally carry two
4

“Tr.” refers to the transcript of administrative proceedings in this case.
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to three pounds, stand or walk for no more than one hour per eight-hour workday, and sit
for no more than one hour per eight-hour workday.
Grogan also submitted a letter dated March 20, 2007 from Stolyarova stating that
Grogan was “not capable of completing complicated forms and require[d] assistance with
complex tasks.” (App. 2 at 199.) Stolyarova also completed a source statement on
January 31, 2008, reporting that Grogan’s impairment affected her ability to understand,
remember, and carry out instructions, and her ability to respond to supervision, coworkers, and work pressures.

Stolyarova concluded that Grogan suffered from “an

unstable mental condition,” “poor anger management, increased anxiety[,] and unstable
mood.” (App. 2 at 364.)
In December 2007, Dr. Paul Taren, a state agency psychologist, reviewed
Grogan’s medical records and concluded that she suffered from major depressive
disorder and PTSD. Taren found that Grogan had moderate limitations in the ability to
understand, remember, and carry out detailed instructions, maintain concentration,
persistence, or pace, and respond appropriately to changes in work settings.
Dr. Gerald Gryczko, a state agency physician who reviewed Grogan’s medical
records, concluded that Grogan suffered from a back abnormality and IBS, but found that
she could lift or carry ten to twenty pounds and stand or walk about six hours in an eighthour workday.
B.

Procedural History

On August 29, 2007 and September 4, 2007, respectively, Grogan filed a Title II
application for disability insurance benefits and a Title XVI application for supplemental
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security income, alleging disability beginning October 15, 2006. Those claims were
denied, and, upon Grogan’s request, a hearing was held before an ALJ on May 12, 2009,
at which Grogan and a vocational expert testified.
Grogan testified that, because of her back impairment, she needs assistance with,
or cannot do, several household activities. However, she reported that she could make
coffee, prepare simple meals, do light cleaning, pay bills, and feed her pet cat.
Additionally, she testified that her IBS affects her every day, and she only eats once a day
after she “gets [her] bowels in control.” (App. 2 at 45.)
The vocational expert testified that a person of the same age, education, and past
work history as Grogan, who was capable of performing sedentary work that affords the
opportunity to sit or stand and is routine and simple, could not perform Grogan’s past
work. The expert went on to say, however, that jobs exist in the national economy,
including clerical positions and sedentary, unskilled work for packers and assemblers,
that such a person could perform.
On May 29, 2009, The ALJ ruled that Grogan was not disabled.

The ALJ

determined that Grogan suffered from severe impairments but that none of them required
an automatic determination of disability, see 20 C.F.R. § 404.1520(d). The ALJ next
concluded that Grogan could not return to her past work but that she had the residual
functional capacity 5 to perform sedentary work that affords the opportunity to sit or
stand, involves no detailed instructions, and requires few work changes.
5

“Residual functional capacity” is “the most [a claimant] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1).
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In determining that Grogan could perform sedentary work, the ALJ attributed
“little weight” to the highly restrictive opinions of Skobinsky. (App. 2 at 19.) The ALJ
reasoned that Skobinsky’s assessment was
not supported by the doctor’s own records or by the records of other
treating physicians such as Dr. Zavitsanos who saw the claimant from 2003
to 2008. Such records … do not relate motor power or reflex deficits,
persistent positive straight leg raising, significantly limited spinal or
extremity range of motion, significant gait dysfunction other than on
examination that was suspect for exaggerated pain behavior … .
(Id.)

The ALJ also gave “little weight” to Stolyarova’s mental health assessment,

reasoning that the record “shows [Grogan had] mental health symptoms but overall does
not indicate symptoms of a level commensurate with [Stolyarova’s assessment].” (App.
2 at 20.)
On April 22, 2010, the Appeals Council denied Grogan’s request for review,
making the ALJ’s decision final.

Grogan then filed a complaint in District Court,

alleging that the denial of her claims was not supported by substantial evidence. On
February 23, 2011, Magistrate Judge Hart issued a Report and Recommendation
suggesting that Grogan’s request for review be denied, and, on April 2, 2011, the District
Court entered an order denying Grogan’s request for review and granting summary
judgment for the Commissioner. This timely appeal followed.

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II.

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Discussion 6
Grogan argues that the District Court erred in upholding the ALJ’s decision to

give limited weight to Grogan’s treating physicians’ opinions in the course of deciding
that Grogan was capable of sedentary work. She argues that had those opinions been
appropriately credited, they would have supported a decision in her favor. We disagree
and conclude that substantial evidence supports the ALJ’s decision.
A.

Applicable Law

To prove disability, a claimant must demonstrate that she suffers from some
“medically determinable physical or mental impairment” that prevents her from
“engage[ing] in any substantial gainful activity” for a period of at least twelve months.
42 U.S.C. § 423(d)(1)(A); Morales v. Apfel, 225 F.3d 310, 315-16 (3d Cir. 2000). A
claimant will be considered disabled and receive benefits only if
the claimant demonstrates that (1) [s]he is not currently engaged in any
substantial gainful activity; (2) [s]he is severely impaired; and either (3)
[her] impairment is listed in 20 C.F.R. pt. 404, subpt. P, App. 1, in which
case [s]he is presumptively disabled, or (4) [her] impairment prevents [her]
from meeting the physical and mental demands of the kind of job that [s]he
6

The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s order for
summary judgment is plenary; however, “our review of the ALJ’s decision is more
deferential as we determine whether there is substantial evidence to support the decision
of the Commissioner.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal
quotation marks and citation omitted). “Despite the deference to administrative decisions
implied by [the substantial evidence] standard, appellate courts retain a responsibility to
scrutinize the entire record and to reverse or remand if the [Commissioner’s] decision is
not supported by substantial evidence.” Smith v. Califano, 637 F.2d 968, 971 (3d Cir.
1981) (citations omitted).
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has held in the past, and (5) [her] impairment together with [her] age,
education, and past work experience also prevents [her] from doing any
other sort of work.
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (citing 20 C.F.R. § 404.1520). “A
cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians’ reports great weight, especially ‘when their opinions reflect expert
judgment based on a continuing observation of the patient’s condition over a prolonged
period of time.’” Morales, 225 F.3d at 317 (quoting Plummer v. Apfel, 186 F.3d 422, 429
(3d Cir. 1999). However, “[t]he law is clear … that the opinion of a treating physician
does not bind the ALJ on the issue of functional capacity.” Brown v. Astrue, 649 F.3d
193, 197 n.2 (3d Cir. 2011). A treating physician’s opinion on the nature and severity of
a claimant’s impairment is only given controlling weight when it is “‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the [claimant’s] case record.’”

Fargnoli v.

Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (alteration in original) (quoting 20 C.F.R. §
404.1527(d)(2)).
When a treating physician’s opinion “conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit but ‘cannot reject evidence for
no reason or for the wrong reason.’” Morales, 225 F.3d at 317 (quoting Plummer, 186
F.3d at 429)); see Fargnoli, 247 F.3d at 43 (when an ALJ “weigh[s] the credibility of the
evidence, he must give some indication of the evidence that he rejects and his reason(s)
for discounting that evidence.”).

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B.

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Treating Physician’s Opinion
1.

Back Impairment

As to her back impairment, Grogan argues that the ALJ improperly rejected
Dr. Skobinsky’s conclusion that she could lift or carry only two to three pounds,
cumulatively stand or walk for no more than one hour per eight-hour workday, and sit for
no more than one hour per eight-hour workday. That report, if taken at face value, would
be work-preclusive. The ALJ concluded, however, that Grogan’s back impairment is not
so severe as to entirely preclude her from engaging in any gainful activity, and that
Skobinsky’s opinion was “not supported by the doctor’s own records or by the records of
other treating physicians.” (App. 2 at 19.) We agree with the District Court that the
ALJ’s determination was supported by substantial evidence.
First, Skobinsky’s treatment records for Grogan indicate general care for cold
symptoms and administering prescriptions. The ALJ reasonably concluded that those
records do not support Skobinsky’s highly restrictive opinion, as they do not correlate to
any impairment affecting Grogan’s motor power, reflexes, positive straight leg raising,
significant limitations on range of motion, or gait dysfunction – all of which are relevant
to her ability to perform sedentary work. Moreover, although we have stated that an ALJ
“may not make speculative inferences from medical reports and may reject a treating
physician’s opinion outright only on the basis of contradictory medical evidence,”

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Morales, 225 F.3d at 317 (internal quotation marks and citations omitted), the record
does contain medical evidence contrary to Skobinsky’s opinion. 7
Indeed, Skobinsky’s opinion is inconsistent with the notes from Dr. Zavitsanos’s
treatment of Grogan, which indicate that Grogan’s pain had, at least temporarily, been
aided by steroid injections. Zavitsanos also reported that Grogan’s sensorimotor abilities
and reflexes remained unchanged, though she had diminished capacity for physical
sensation. Those findings undermine Skobinsky’s opinion that Grogan was essentially
unable to work. In addition, Zavitsanos’s reports of no changes in motor or deep tendon
reflexes further support the ALJ’s conclusion that the medical records “do not relate [to]
motor power or reflex deficits.” (App. 2 at 19.)
Skobinsky’s opinion also conflicts with that of Dr. Gryczko, the state agency
physician who concluded that Grogan was capable of limited work including lifting or
carrying twenty to twenty-five pounds and standing or walking about six hours in an
eight-hour workday. Skobinsky’s opinion also is contrary to the evidence of Grogan’s
abilities and lifestyle. The ALJ observed that, by Grogan’s own account, she was able to
perform numerous activities such as making simple meals, caring for her children, paying
bills, and light cleaning. The ALJ also noted that most medical evaluators reported that
Grogan maintained proper self-care and grooming. Grogan’s ability to perform so many
7

It is also noteworthy that the forms that Skobinsky filled out consisted largely of
simply checking boxes. We have previously found the credibility of this type of opinion
evidence to be suspect. See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)
(“Form reports in which a physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.”). Additionally, Skobinsky’s notations and explanations for
his entries consist largely of merely “see above” and “included.” (See App. 2 at 366-67.)
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daily functions involving reasonable motor function supports the ALJ’s conclusion that
Grogan was capable of sedentary work. 8 Thus, we conclude that substantial evidence
supports the ALJ’s decision to give diminished weight to Skobinsky’s opinion.
2.

Gastrointestinal Impairment

Grogan also contends that the ALJ failed to give proper consideration to her GI
symptoms. She is correct that her complaints of persistent diarrhea are well-supported in
the record. However, the ALJ’s conclusion that Grogan’s IBS was largely under control
is nonetheless supported by substantial evidence.
Grogan saw a gastroenterologist, Dr. Tanker, who prescribed medication and
recommended that she increase her fiber intake in March 2004, and she saw another
gastroenterologist, Dr. Harmatz, on one occasion in 2007. 9 Grogan made numerous
reports to her treating physicians and in her testimony about intestinal problems, but
there is no evidence in the medical record that her condition was not helped by her
medications or that it was so severe as to preclude her from working. The severity of
Grogan’s IBS is shown only through her own testimony and complaints.

A state

physician reviewed the records with respect to Grogan’s IBS and determined that her
condition was not so severe as to be work-preclusive.
8

Also, despite Grogan’s continuing complaints of severe pain, she testified at her
hearing that she was not receiving any treatment for her back other than pain medication
at the time. Additionally, despite her alleged pain profile, Grogan “ke[pt] forgetting to
find a pain specialist.” (App. 2 at 384.) The ALJ reasonably noted that “if [Grogan’s]
back pain was of the level testified to at hearing by [Grogan], it does not seem reasonable
that she would have gone over a year without obtaining a new pain management
specialist.” (App. 2 at 18.)
9
Although both specialists ordered laboratory tests done, the results of those tests
do not appear in the record.
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In light of the foregoing, we are satisfied that substantial evidence supports the
ALJ’s conclusion that Grogan’s IBS did not prevent her from being able to work.
C.

Treating Psychiatrist’s Opinion

Grogan argues that substantial evidence did not support the ALJ’s decision to give
diminished weight to the opinion of Dr. Stolyarvoa, Grogan’s treating psychiatrist.
Stolyarova’s opinion evidence consisted of a letter and source statement indicating
moderate, severe, and extreme limitations in Grogan’s mental capacity. Based on the
record, the ALJ’s decision to give diminished weight to Stolyarova’s restrictive opinion
is supportable.
First, Stolyarova’s opinion is inconsistent with her own treatment of Grogan.
Although Stolyarova diagnosed Grogan with major depression, PTSD, and bipolar
disorder, Stolyarova’s yearly evaluations consistently rated Grogan’s symptoms as mild
to moderate, reflected in her GAF scores of 60 and higher. Stolyarova’s records also
indicate that Grogan typically showed intact thought processes and cooperative behavior,
was goal-directed, and maintained appropriate grooming and appearance.
Stolyarova’s opinion is also inconsistent with Dr. Karzova’s treatment records,
which showed significant improvement in Grogan’s mental condition. Indeed, in 2009,
Karzova assigned Grogan a GAF score of 65, indicating more mild symptoms and
representing the highest score assigned to Grogan during the period at issue.
Additionally, Grogan reported to Karzova that she felt a “60% improvement” with
medication, (App. 2 at 432,) and Karzova observed a “slight improvement” in Grogan’s
condition, (Tr. at 448).

Therefore, Karzova’s treatment of Grogan reasonably
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demonstrates a relatively mild and improving condition, inconsistent with Stolyarova’s
restrictive assessment.
Stolyarova’s opinion is also contradicted by the opinion of the state agency
psychologist, Dr. Taren. 10 Taren concluded that Grogan had no significant limitations
other than moderate limitations in her ability to understand, remember, and carry out
detailed instructions, to maintain concentration, persistence, or pace, and to respond
appropriately to changes in work setting.
Based on the evidence indicating that Stolyarova’s restrictive opinion was
inconsistent with her own treatment records and with the opinions of other mental health
professionals, there was an adequate basis for the ALJ to decide to give diminished
weight to Stolyarova’s opinion.
III.

Conclusion
For the foregoing reasons, we conclude that substantial evidence supports the

ALJ’s decision. Accordingly, we will affirm the District Court’s judgment.

10

As the District Court recognized, Taren’s report was made prior to Grogan’s
attempted suicide and involuntary hospital stay. That is significant; however, it should be
noted that the ALJ gave Taren’s opinion “some weight but not substantive weight” and
gave Grogan “the benefit of the doubt” by giving her a “slightly more restrictive residual
functional capacity.” (App. 2 at 21.)
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