Celentano v. Berryhill

Filing 16

MEMORANDUM OPINION. Signed by Judge Malachy E. Mannion on 8/14/19. (Sempa, Barbe)

UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
SHARON CELENTANO,
Plaintiff
v.

:
:

CIVIL ACTION NO. 1:17-1590

:
(JUDGE MANNION)

ANDREW M. SAUL1,
:
Commissioner of Social Security,
:
Defendant
:
MEMORANDUM
The above-captioned action is one seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying the plaintiff’s
applications for Social Security Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§401-433. The court has jurisdiction pursuant
to 42 U.S.C. §405(g). Currently before the court are the parties’ cross-motions
for summary judgment. (Doc. 12, Doc. 14). For the reasons set forth below,
the plaintiff’s motion will be denied and the defendant’s motion will be granted.
Thus, the court will affirm the Commissioner’s decision.

1

Andrew M. Saul was sworn in as Commissioner of Social Security on
June 17, 2019, and is automatically substituted as the defendant in this
action. See Fed.R.Civ.P. 25(d).

I.

BACKGROUND2
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 plaintiff meets the insured status requirements
of the Act through December 31, 2020. In order to establish entitlement to
disability insurance benefits, the plaintiff was required to establish that she
suffered from a disability on or before that date. 42 U.S.C. §423(a)(1)(A),
(c)(1)(B); 20 C.F.R. §404.131(a); see Matullo v. Bowen, 926 F.2d 240, 244
(3d Cir. 1990).
The plaintiff was born on March 26, 1970, and was 44 years old, defined
as a younger individual, on her alleged disability onset date. The plaintiff has
a high school education and is able to communicate in English. Her past work
includes positions as an auto assembler, line cook and school bus driver. The
plaintiff alleges that June 13, 2014, she became disabled and unable to work.
The plaintiff protectively filed a claim for DIB on June 25, 2014, and a
claim for SSI on June 30, 2014, alleging disability commencing on June 13,

2

The court notes that since the ALJ and the parties have stated the
medical history of plaintiff in their respective filings, the court will not fully
repeat it herein. Rather, the court discusses the plaintiff’s medical history only
to the extent it is relevant to the issues raised in this appeal.
2

2014 in both applications. The agency initially denied the plaintiff’s
applications on August 26, 2014. The plaintiff filed a request for
reconsideration and, on March 20, 2015, the agency denied her request. The
plaintiff then requested a hearing before an administrative law judge (“ALJ”),
which was held on January 18, 2017. The plaintiff was represented by
counsel at her hearing. In addition to the plaintiff’s testimony, the ALJ heard
the testimony of a vocational expert (“VE”).
The ALJ issued a decision on March 10, 2017, finding that the plaintiff
was not disabled within the meaning of the Act at any time from June 13,
2014, the alleged onset date of disability, through the date of his decision.
The plaintiff filed a request for review and, on September 20, 2017, the
Appeals Council denied her request for review, making the ALJ’s decision the
final decision of the Commissioner. Since the plaintiff exhausted her
administrative remedies, she initiated the present action on November 6,
2017, appealing the final decision of defendant. (Doc. 1).

II.

STANDARD OF REVIEW
When reviewing the denial of disability benefits, the court must

determine whether the denial is supported by substantial evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of
Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not
3

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 (1988); Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999); Johnson, 529 F.3d at 200. It is less than a
preponderance of the evidence but more than a mere scintilla. Richardson v.
Perales, 402 U.S. 389, 401 (1971).
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,
[a]n individual shall be determined to be under a disability only if
[her] physical or mental impairment or impairments are of such
severity that [s]he is not only unable to do h[er] previous work but
cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists
in the immediate area in which [s]he lives, or whether a specific
job vacancy exists for [her], or whether [s]he would be hired if
[s]he applied for work. For purposes of the preceding sentence
(with respect to any individual), ‘work which exists in the national
economy’ means work which exists in significant numbers either
in the region where such individual lives or in several regions of
the country.
42 U.S.C. §423(d)(2)(A).
In the present case, there are cross-motions for summary judgment. “In
Social Security cases, the substantial evidence standard applies to motions
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for summary judgment brought pursuant to Federal Rule of Civil Procedure
56(c).” Antoniolo v. Colvin, 208 F.Supp.3d 587, 595 (D.Del. 2016) (citing
Woody v. Sec’y of the Dep't of Health & Human Servs., 859 F.2d 1156, 1159
(3d Cir.1988)).

III.

DISABILITY EVALUATION PROCESS
The plaintiff must establish that there is some “medically determinable

basis for an impairment that prevents her from engaging in any substantial
gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999) (internal quotations omitted)). “A claimant is considered unable
to engage in any substantial gainful activity ‘only if [her] physical or mental
impairment or impairments are of such severity that [s]he is not only unable
to do [her] previous work but cannot, considering [her] age, education, and
work experience, engage in any other kind of substantial gainful work which
exists in the national economy . . . .’” Fargnoli, 247 F.3d at 39 (quoting 42
U.S.C. §423(d)(2)(A)).
A five-step evaluation process is used to determine if a person is eligible
for disability benefits. See 20 C.F.R. §404.1520. See also Plummer, 186 F.3d
at 428. If the Commissioner finds that a plaintiff is disabled or not disabled at
any point in the sequence, review does not proceed any further. See 20
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C.F.R. §404.1520. The Commissioner must sequentially determine: (1)
whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment
meets or equals a listed impairment; (4) whether the claimant’s impairment
prevents the claimant from doing past relevant work; and (5) whether the
claimant’s impairment prevents the claimant from doing any other work. See
20 C.F.R. §404.1520.
Here, the ALJ proceeded through each step of the sequential evaluation
process to conclude that the plaintiff was not disabled within the meaning of
the Act. The ALJ found that the plaintiff had engaged in substantial gainful
activity since June 13, 2014, her alleged onset date. However, the plaintiff had
a continuous 12-month period where she had not engaged in substantial
gainful activity. The ALJ therefore addressed the periods since her alleged
onset date when she had not engaged in substantial gainful activity. Next, the
ALJ determined that plaintiff suffered from severe impairments, including
chronic obstructive pulmonary disease3, unspecified diffuse connective tissue
disease4, and major depressive disorder. The ALJ determined that the

3

Despite this diagnosis and medical advice to the contrary, the record
demonstrates that the plaintiff continues to smoke approximately 1 ½ packs
of cigarettes per day.
4

This was the plaintiff’s diagnosis after multiple sclerosis, lupus,
rheumatoid arthritis, fibromyalgia and Sjogren’s syndrome were ruled out.
6

plaintiff’s sleep apnea, hypertension and mild degeneration in her cervical and
thoracic spine and sacroiliac joints were non-severe impairments. Considering
the medical evidence of record, the ALJ determined that the plaintiff did not
have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments, specifically considering
listings 3.02, 14.06 and 12.04.
The ALJ found that plaintiff had the RFC to perform sedentary work
except that she could occasionally climb ramps, stairs, ladders, ropes and
scaffolds, occasionally balance, kneel, crouch or crawl, and never stoop; she
could have occasional exposure to extreme cold, extreme heat, wetness,
humidity, vibration, fumes, odors, dust, gases, poor ventilation and hazards;
and she was limited to simple, unskilled tasks with no fast pace or strict
production requirements, in a stable work environment with only occasional
changes and occasional interaction with coworkers and the public. With these
limitations, the ALJ found that the plaintiff was unable to perform any of her
past relevant work. However, given the plaintiff’s age, education, work
experience and residual functional capacity, and considering the testimony of
the VE, the ALJ found that there were jobs which existed in significant
numbers in the national economy that the plaintiff could perform.

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IV.

DISCUSSION
The only issue raised by the plaintiff in her appeal is that the ALJ

improperly evaluated the medical opinion evidence in fashioning his RFC
assessment. Specifically, the plaintiff argues that her treating sources for her
physical impairments, Dr. Nazia Hasan and Linda Ashley, NP, provided
opinions (Tr. 646-47, 591-92) which demonstrate that her physical limitations
are more limiting than found in the ALJ’s RFC assessment and that her
treating sources for her mental impairments, Heather Frye, APRN, and A.
Lynn Banks, LCSW, also provided opinions (Tr. 595-600, 603-08) establishing
greater mental limitations than found in the ALJ’s RFC. As relief, the plaintiff
seeks to have this court reverse the Commissioner’s decision and remand the
case to the Commissioner for further proceedings.
When a RFC assessment conflicts with opinions of medical sources, the
ALJ must provide reasons for rejecting the opinions which must “. . . always
(be) good reasons . . . (and) . . . contain specific reasons for the weight given
to the treating sources’ medical opinion, supported by the evidence in the
case record . . .” See 20 C.F.R. §§404.1527, 416.927(c). Factors to be
considered include examining relationship, treating relationship, supportability,
consistency and specialization. Id. However, not all of these factors need be
discussed when weighing medical source opinions. Id. See also 56 Fed. Reg.
at 36936 (1991) (final rules) (“not every factor will apply in every case” and
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“certain factors . . . will sometimes take precedence over other factors.”).
Although opinions of treating sources are entitled to substantial weight,
“‘[t]he law is clear . . . that the opinion of a treating physician does not bind the
ALJ on the issue of functional capacity.’” Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 361 (3d Cir. 2011) (quoting Brown v. Astrue, 649 F.3d 193, 197
n.2 (3d Cir. 2011)). Rather, the determination of an individual’s RFC is
reserved for the Commissioner. See 20 C.F.R. §§404.1527(d)(2),
416.927(d)(2). In addition, “[a] treating source’s opinion is not entitled to
controlling weight if it is ‘inconsistent with other substantial evidence in [the]
case record.’” See Scouten v. Comm’r of Soc. Sec., 722 Fed. Appx. 288, 290
(3d Cir. 2018)). The role of the court is only to determine whether there is
substantial evidence to support the ALJ’s weighing of medical source
opinions, not to re-weigh the medical evidence. See Ransom v. Berryhill,
2018 WL 3617944, at *7 (D.Del. July 30, 2018) (citing Gonzalez v. Astrue,
537 F.Supp.2d 644, 659 (D.Del. 2008)).
In this case, the plaintiff argues that the ALJ failed to properly consider
the medical source statement of Dr. Hasan, completed on December 27,
2016, wherein Dr. Hasan provides, in part, that the plaintiff has various
restrictions with respect to lifting, standing and walking due to weakness and
pain. In addition, Dr. Hasan provides that the plaintiff needs a sit/stand option
and is required to lay down for 15 minutes every 1-2 hours. The plaintiff was
9

further noted to rarely be able to climb steps or ladders, bend, kneel, stoop,
crouch or balance. Based upon these limitations, Dr. Hasan opined that the
plaintiff is incapable of performing light or sedentary work activity. (TR. 64647).
Upon review, the ALJ considered the medical assessment statement of
Dr. Hasan. In doing so, the ALJ acknowledged Dr. Hasan as the plaintiff’s
primary care physician, but gave no weight to the opinion expressed on the
form completed by Dr. Hasan noting that Dr. Hasan’s primary care records
were inconsistent with the limitations set forth on the form, instead reflecting
that the plaintiff had a normal gait, station and strength which would not
produce the extreme limitations set forth on the form. Moreover, the ALJ
noted that there were no objective findings contained in the assessment to
support the limitations stated therein. As to the plaintiff’s subjective
complaints, these alone are insufficient to establish disability. See 20 C.F.R.
§§ 404.1529(a), 416.929(a).
As to the ALJ’s consideration of Dr. Hasan’s assessment, the court
notes initially that it is well settled 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.”
Spallone v. Berryhill, 2018 WL 2771581, at *9 (M.D. Pa. Apr. 3, 2018) (citing
Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)), report and
recommendation adopted, 2018 WL 2770646 (M.D. Pa. June 8, 2018). Thus,
10

the ALJ was not required to give the form report any weight. Moreover, an
ALJ “may discredit a physician’s opinion on disability that was premised
largely on the claimant’s own accounts of her symptoms and limitations when
the claimant’s complaints are properly discounted.” Morris v. Barnhart, 78
Fed.Appx. 820, 824-25 (3d Cir. 2003). The only reasoning provided on the
form for Dr. Hasan’s findings was the plaintiff’s subjective “feelings” which
were not supported by the other evidence of record. Thus, the ALJ was
justified in not affording any weight to the medical assessment form
completed by Dr. Hasan.
With respect to the opinion of Linda Ashley, NP, the plaintiff’s treating
rheumatology source, the plaintiff argues that, on September 1, 2016, NP
Ashley prepared a medical source statement wherein she indicated that the
plaintiff had lifting and sitting limitations due to back pain. NP Ashley further
indicated that the plaintiff could only stand/walk for 15 minutes at one time, for
a total of only 1 hour in an 8 hour workday due to weakness. NP Ashley
indicated that the plaintiff would need to lie down on an hourly basis and could
only occasionally climb steps, kneel, stoop and balance, and could only rarely
climb ladders and crouch. Based upon these limitations, NP Ashley opined
that the plaintiff would be unable to perform sedentary or light work activity.
Again, the ALJ considered the opinion of NP Ashley as the plaintiff’s
rheumatology nurse and, for the same reasons given with respect to Dr.
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Hasan, gave no weight to the opinion. Moreover, the ALJ noted that
rheumatology records did not support the limitations indicated in NP Ashley’s
statement which was considered in accordance with SSR 06-3p5.
Consistently, the ALJ noted that the plaintiff was found to have normal
sensation, normal range of motion and normal muscle tone and strength. For
the reasons set forth with respect to the opinion of Dr. Hasan, the court finds
that the ALJ was justified in affording no weight to the medical source
statement of NP Ashley.
In relation to the plaintiff’s physical limitations, in addition to the above
treating source opinions, the ALJ considered the state agency physical
assessments indicating a capacity for light work. The ALJ afforded these
assessments little weight, as he found that the medical records supporting
some postural and environmental limitations, as well as pain and fatigue,
demonstrated that the plaintiff was more limited.
The plaintiff next argues that the ALJ erred in failing to give any weight
to the opinion of Heather Frye, APRN, who completed a mental health
questionnaire on September 1, 2016, in which she indicated that the plaintiff
had been diagnosed with major depressive disorder, recurrent, severe without
psychotic features. APRN Frye listed the plaintiff symptoms, indicating that

5

Social Security Ruling 06-3p clarifies how the Commissioner considers
opinions from sources who are not “acceptable medical sources.”
12

they have responded to medication, but that she was not in remission. APRN
Frye indicated that the plaintiff had “poor” mental ability in maintaining
attention for two hour segments, completing a normal workday and workweek
without interruptions from psychologically based symptoms, performing at a
consistent pace without an unreasonable number and length of rest periods
and accepting instructions and responding appropriately to criticism from
supervisors. She noted that the plaintiff had “seriously limited” mental ability
in remembering work-like procedures, making simple work-related decisions,
asking simple questions or requesting assistance, responding appropriately
to routine change in a work setting and dealing with normal work stress.
“Marked” difficulties were noted in maintaining concentration, persistence or
pace which APRN Frye opined would likely result in the plaintiff missing more
than 4 days of work per month making it hard for the plaintiff to work a fulltime job on a sustained basis.
In considering the questionnaire completed by APRN Frye, the ALJ
found the information provided was internally inconsistent indicating at one
point that the plaintiff’s thought processes were logical and goal directed, yet
later indicating that the plaintiff had difficulty thinking or concentrating.
Moreover, the ALJ noted that APRN Frye’s treatment notes were inconsistent
with the questionnaire in that there was nothing documented which would
indicate that the plaintiff would likely miss four days of work per month. While
13

there were occasional notations of depressed mood and constricted affect,
the

plaintiff’s

mental

status

examination

findings

were

otherwise

unremarkable. The plaintiff herself noted that she was feeling better in July
and September 2015 and it was noted that she had normal mood with
congruent affect. In February 2016, the plaintiff had returned to work as a
school bus aide. Later treatment notes indicate that the plaintiff had normal
mental status examination findings including memory, affect and mood. In
light of the internal inconsistencies, as well as inconsistencies with the other
evidence of record, the court finds the ALJ was justified in affording no weight
to APRN Frye’s questionnaire responses.
The plaintiff argues that the ALJ also erred in affording no weight to the
opinion of A. Lynn Banks, LCSW, her treating therapist. Like APRN Frye,
LCSW Banks prepared a medical impairment questionnaire on December 1,
2016, wherein LCSW Banks indicated that the plaintiff had “no useful ability
to function” in the areas of understanding and remembering very short and
simple instructions, maintaining attention for two hour segments, maintaining
regular attendance and being punctual with customary tolerances, performing
at a consistent pace without an unreasonable number and length of rest
periods, dealing with normal work stress and being aware of normal hazards
and taking appropriate precautions. It was opined that the plaintiff had “poor”
mental ability in the areas of remembering work-like procedures, carrying out
14

very short and simple instructions, sustaining an ordinary routine without
special supervision, working in coordination with or proximity to others without
being unduly distracted, responding appropriately to workplace change and
setting realistic goals or making plans independently of others. LCSW Banks
opined that the plaintiff had marked limitations in activities of daily living,
maintaining social functioning and maintaining concentration, persistence or
pace. She opined the plaintiff would likely miss more than four days of work
per month due to her impairments and indicated that the plaintiff could not
work full time due to “depression, difficulty focusing, short term memory
impairment, loss of energy, feelings of hopelessness, helplessness, loss of
appetite, extreme fatigue, hypersomnia, social withdrawal and suicidal
ideation.”
In considering LCSW Banks’s questionnaire, the ALJ noted that her
contemporaneous treatment notes did not support the limitations provided in
the questionnaire. The ALJ noted that the plaintiff’s session notes contained
more physical symptoms and observations than mental status deficiencies.
Moreover, the ALJ found that, even when the plaintiff is noted to be
depressed or anxious, LCSW Banks indicates that her thought process and
content is normal and that she has no delusions or hallucinations.
In addition to the above treating source opinions, the ALJ considered a
statement dated May 2014 from Dr. Chua, a psychiatrist, reflecting that the
15

plaintiff was limited to the extent that she could not work as a school bus
driver and assigning the plaintiff a GAF score of 60, the highest functioning
level of “moderate” symptoms or functional impairment. The ALJ gave Dr.
Chua’s statement significant weight to the extent that it was consistent with
the other evidence of record, but noted that there were not treatment notes
from Dr. Chua in the record. Moreover, only some weight was afforded to the
consultative psychological evaluation performed in conjunction with a prior
application for benefits which demonstrated that the plaintiff had adequate
attention, concentration and memory, as the ALJ found that subsequent
medical evidence supported more than the mild limitations found on the
functional capacities evaluation form completed at the time. The ALJ afforded
great weight to the state agency mental assessments stating that the record
supported the limitations indicated in those assessments consistent with the
plaintiff’s paragraph B functional limitations. Although the state agency
psychiatric review technique was based upon the former mental listings, the
ALJ gave them some weight in establishing the plaintiff’s moderate limitations.
As set forth above, the record reflects that the ALJ recognized the
plaintiff’s treating sources, but gave no weight to their opinions because they
were internally inconsistent, inconsistent with their own treatment notes, and
inconsistent with the other evidence of record. The plaintiff argues that by
rejecting the opinions of her treating sources, the ALJ substituted his own lay
16

opinion for that of the experts. If an ALJ chooses to reject a treating source’s
assessment, he may do so only on the “basis of contradictory medical
evidence” not because of his or her “own credibility judgments, speculation
or lay opinion.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations
omitted). Here, there is no indication that the ALJ substituted his own lay
opinion for the opinions of the plaintiff’s treating physicians, but rather
afforded their opinions no weight because of internal inconsistencies and
inconsistencies with the other evidence of the record as a whole.
The plaintiff also argues that the ALJ erred in rejecting the treating
sources’ assessments to the extent they were not supported by
accompanying treatment records arguing that medical providers do not
typically include functional assessments of a claimant’s work related
limitations in their office notes, as medical records are not prepared in
anticipation of litigation. Arguments such as this have been found unavailing
where the medical records speak for themselves. See e.g., Grier v. Berryhill,
2019 WL 2870728, at *9 n.11 (D.De., July 3, 2019). As outlined by the ALJ,
the medical records in this case speak for themselves.
Finally, the plaintiff argues that the ALJ erred in failing to “accept and
include or reject and explain” the limitations opined by Dr. Chua, who
indicated that the plaintiff could not work as a school bus driver and assessed
the plaintiff with a GAF of 60 to which the ALJ gave significant weight. The
17

record reflects that the ALJ considered the statement of Dr. Chua and gave
his conclusions weight to the extent they were supported by the other
evidence of record. However, no treatment notes supporting Dr. Chua’s
conclusions were placed in the record. Therefore, the ALJ need not have
considered those conclusions which were not supported by the record.

V.

CONCLUSION
For the reasons stated above, the court finds that the decision of the

Commissioner denying plaintiff’s applications for DIB and SSI is supported by
substantial evidence. Thus, the plaintiff’s motion for summary judgment, (Doc.
12), is DENIED, and the defendant Commissioner’s motion for summary
judgment, (Doc. 14), is GRANTED. Accordingly, pursuant to 42 U.S.C.
§405(g), the decision of the Commissioner will be AFFIRMED and the
plaintiff’s APPEAL, (Doc. 1), will be DENIED. An appropriate order will be
issued.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: August 14, 2019
17-1590-01.wpd

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