Mattei v. Colvin
Filing
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ORDER denying 17 Motion of plaintiff for Summary Judgment; granting 19 Motion of defendant for Summary Judgment; AFFIRMING Commissioner's judgment. Signed by Magistrate Judge Stephanie A Gallagher on 8/8/2017. (jnls, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7780
Fax (410) 962-1812
August 8, 2017
LETTER TO COUNSEL
RE:
Juan Sepulveda Mattei, III v. Commissioner, Social Security Administration;
Civil No. SAG-16-3773
Dear Counsel:
On November 22, 2016, Plaintiff Juan Sepulveda Mattei, III petitioned this Court to
review the Social Security Administration’s final decision to deny his claims for Disability
Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the
parties’ cross-motions for summary judgment. (ECF Nos. 17, 19). I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the decision of the
Agency if it is supported by substantial evidence and if the Agency employed proper legal
standards. See 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996). Under that standard, I will deny Mr. Mattei’s motion, grant the Commissioner’s motion,
and affirm the Commissioner’s judgment pursuant to sentence four of 42 U.S.C. § 405(g). This
letter explains my rationale.
After previously being denied benefits, (Tr. 85-88, 93-105), Mr. Mattei filed his current
claims for benefits on February 11, 2013, alleging a disability onset date of August 11, 2011.
(Tr. 274-80). His claims were denied initially and on reconsideration. (Tr. 106-33, 136-65). A
hearing was held on July 14, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 54-84).
Following the hearing, the ALJ determined that Mr. Mattei was not disabled within the meaning
of the Social Security Act during the relevant time frame. (Tr. 31-53). The Appeals Council
(“AC”) denied Mr. Mattei’s request for review, (Tr. 1-9), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.
The ALJ found that Mr. Mattei suffered from the severe impairments of “obesity, sleep
apnea, irritable bowel syndrome (IBS), and depression - bipolar disorder.” (Tr. 36). Despite
these impairments, the ALJ determined that Mr. Mattei retained the residual functional capacity
(“RFC”) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: He cannot squat or crawl. He cannot perform
production rate or pace work, cannot work with the public and can only have
occasional contact with coworkers. Due to issues with fatigue and additional
breaks, he would be off-task 10 percent of the workday. He additionally cannot
climb stairs or ladders and needs a cane for ambulation.
Juan Sepulveda Mattei v. Commissioner, Social Security Administration
Civil No. SAG-16-3773
August 8, 2017
(Tr. 39). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Mr. Mattei could perform jobs existing in significant numbers in the national economy and that,
therefore, he was not disabled. (Tr. 46-47).
Plaintiff makes several arguments on appeal: (1) that the ALJ did not adequately assess
his mental limitations; (2) that the ALJ did not adequately assess his physical limitations; (3) that
the AC did not adequately consider medical records presented at the appeal level; and (4) that the
Commissioner improperly ordered multiple consultative examinations with the same provider.
Each argument lacks merit and is addressed below.
First, with respect to his mental limitations, Plaintiff argues that the ALJ disregarded the
opinion of the non-examining State agency physicians that he “will function best with tasks that
do not require extensive concentration and can be completed alone.” Pl. Mot. 7-8 (citing (Tr.
116, 148)). However, although the wording is different, the ALJ’s RFC assessment contains the
functional equivalent of those restrictions by stating that Plaintiff “cannot perform production
rate or pace work,” “would be off-task 10 percent of the workday,” and “cannot work with the
public and can only have occasional contact with coworkers.” (Tr. 39).
Plaintiff further argues that the ALJ improperly used his “non-SGA income” as an Uber
driver to deny his claim. Pl. Mot. 8. However, the ALJ made no reference to Plaintiff’s income,
other than to find that the employment was not “substantial gainful employment.” (Tr. 36, 44).
Instead, the ALJ relied on Plaintiff’s ability to perform the duties of an Uber driver without
incident to contradict the assertions of severe functional limitations made by Plaintiff’s treating
therapist, Mr. Schweizer, who suggests that he suffers “frequent disruptions from his bipolar
disorder.” (Tr. 44).
Next, with respect to physical limitations, Plaintiff argues that the ALJ improperly
rejected the opinion of his treating physician, Dr. Nwachinemere. Pl. Mot. 9. Specifically,
Plaintiff alleges that the ALJ rejected the opinion as “wholly based on subjective complaints,”
and suggests that the “findings of non-examiners must necessarily be extremely subjective, since
they have never seen Mattei[.]” Id. In fact, however, the ALJ also cited the fact that Dr.
Nwachinemere’s opinion was unsupported by his treatment recommendations and his follow-up
testing and imaging. (Tr. 44). In addition, the non-examiners reviewed both subjective evidence
and evidence of objective testing, so their opinions, which were awarded “some weight,” are not
“extremely subjective.” (Tr. 45, 113-15, 145-47). Moreover, reliance upon the opinion of a nonexamining physician is precluded only where “it is contradicted by all of the other evidence in
the record.” Smith v. Schweiker, 795 F.2d 343, 348 (4th Cir. 1986). In Plaintiff’s case, there is
evidence both supporting and undermining a finding of disability, so reliance on the opinion of
non-examining physicians is entirely proper.
Plaintiff also contends that the AC should not have rejected Dr. Nwachinemere’s opinion,
since it had the benefit of additional examination records that supported the opinion and had not
been presented to the ALJ. Pl. Mot. 9. In fact, however, several of those examination records
post-dated Dr. Nwachinemere’s opinion, and therefore did not provide a basis for the earlier
assessment. See, e.g., (Tr. 829, 831). Under Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir.
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Juan Sepulveda Mattei v. Commissioner, Social Security Administration
Civil No. SAG-16-3773
August 8, 2017
2011), the AC need not articulate its findings as long as the Court can assess, from a review of
the entire record, the basis for the Commissioner’s decision. The existence of the new
examination records, which consist of a colonoscopy, an abdominal ultrasound, a
polysomnography, visits to the sleep disorders clinic, and an appointment with an allergist, did
not undermine the ALJ’s basis for assigning “little weight” to Dr. Nwachinemere’s opinion. The
ALJ’s point is that Dr. Nwachinemere never made treatment recommendations consistent with
his opinion and did not order any follow up testing or imaging, as one would expect for a
claimant who would have to elevate his legs more than 50 percent of the day and could only
stand for a maximum of 10 minutes. (Tr. 44). Accordingly, I find no error in the AC’s
consideration of the new records.
Finally, Plaintiff suggests, generally, that 20 C.F.R. § 404.1519j “should preclude
repeated consultative examinations with the same consultative examiner with the same identical
findings.” Pl. Mot. 9-10. In fact, § 404.1519j provides authority for a claimant or the claimant’s
representative to “object to your being examined by a medical source we have designated to
perform a consultative examination.” § 404.1519j. One stated basis for making such an
objection would be “whether the medical source had examined you in connection with a previous
disability determination or decision that was unfavorable to you.” Id. However, the language of
the provision clearly contemplates that the objection should be made prior to the consultative
examination, so that it can be scheduled with a different physician. Id. Plaintiff does not allege
that any such objection was made before any of his examinations with Dr. Cascella. In addition,
because the ALJ assigned all of Dr. Cascella’s opinions “little weight,” even if an error had been
made, it would be harmless.
CONCLUSION
For the reasons set forth herein, Mr. Mattei’s Motion for Summary Judgment (ECF No.
17) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 19) is GRANTED.
The Commissioner’s judgment is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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