LAGG v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Jose L. Linares on 11/28/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAROLYN L. LAGG,
Civil Action No. 2:15-cv-07872 (JLL)
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
LINARES, District Judge.
This matter comes before the Court by way of Pro se Plaintiff Carolyn L. Lagg’s
(“Plaintiff’ or “Claimant” hereinafter) appeal of Administrative Law Judge (“AU”) Leonard
Olarsch’s denial of Plaintiffs application for Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”) for the period
of June 1, 2007 through December 27, 2011. The Court’s jurisdiction to review Plaintiffs
appeal falls under 42 U.S.C.
§ 405 (g) and pursuant to Local Civil Rule 9.1 (f) the Court resolves
this matter on the parties’ briefs. After reviewing the submissions of both parties, the Court
affirms the final decision of the Commissioner of Social Security (the “Commissioner”) for the
reasons stated herein.
A. Procedural History
On August 19, 2010, Plaintiff applied to the Social Security Administration (the
“Administration”) for SSI and DIB alleging disability as of June 1, 2007. R. at 249; 261. The
Administration denied Plaintiffs initial application on December 13, 2010 and then again upon
reconsideration on February 25, 2011. R. at 152. Plaintiff requested an administrative hearing
which was held on March 8, 2012 before AU
Richard L. De Steno. R. at 119-38.
Subsequently, AU De Steno issued decision unfavorable to claimant on April 3, 2012. R. at
152-58. Claimant requested review by the Appeals Council review this decision. On May 31,
2013, the Appeals Council issued an order vacating the AU’s decision and remanding the matter
for resolution of various issues noted in the Appeals Council’s order2. R. at 167-70. Per said
order, a second administrative hearing was held before AU Olarsch on November 13, 2013.
R. at 73. On December 23, 2013, AU Olarsch issued an opinion3 finding Claimant was not
disabled within the meaning of the Act for the period of June 1, 2007 through the date of the
decision. R at 55.
Subsequent to AU Olarsch’s determination, Plaintiff requested the Appeals Council to
review the administrative decision of AL] Olarsch dated December 23, 2013. R. at 5. On June
18, 2015, the Council notified Plaintiff that her request was granted and that “the Council
proposed to issue a decision finding the claimant ‘disabled’ beginning on December 28, 2011”
this was apparently based on the fact that Plaintiff attained the age of 55 on December 29,
1956 (r. at 122) which placed her in a different category under the Act. R. at 5. The Council
“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 9.
Because the Court writes for the parties who are familiar with the facts and procedural history of the case, the
Court refrains from reiterating the Appeals Council’s findings in the order dated May 31, 2013 and addresses only
those facts relevant to the pending appeal. For the Appeals Council’s May 31, 2013 order see the Administrative
Record at pages 167 through 170.
The Court notes AIJ Olarsch’s December 23, 2013 opinion is the second decision issued by an AU in this matter
and further highlights that for purposes of this opinion AU Olarsch’s findings are those referenced herein.
also included in this notification that Plaintiff was given the opportunity to submit any comments
or new and material evidence within 30 days from the date of said notice. Id. Thereafter
Plaintiff failed to make any submissions. Id. On March 3, 2015, Plaintiffs attorney ceased
representation. Id. at 35.
On September 10, 2015, the Council issued a decision stating that it “adopts the
Administrative Law Judge’s statements regarding the pertinent provisions of the Social Security
Act, Social Security Administration Regulations, Social Security Rulings and Acquiescence
Rulings, the issues in the case, and the evidentiary facts, as applicable” however it “does not
adopt the Administrative Law Judge’s finding or conclusion regarding whether the claimant is
disabled for the period beginning December 28, 2011.” Id. The Council further affirmed the
AU’s findings at steps 1 through 4 and that Plaintiff is able to perform a reduced range of light
work but unable to perform any past relevant work. Id. at 6. As further explained in the
Council’s decision, an individual with the vocational factors and the residual functional capacity
of the Plaintiff to perform a reduced range of light work from the period beginning on December
28, 2011 is deemed disabled under Rule 202.6, Table No. 2 of CFR Part 404, Subpart P,
Appendix 2. Id. Alternatively, for the period prior to December 28, 2011, an individual with the
vocational factors and residual functional capacity of the Plaintiff to perform the same reduced
range of light work is deemed not disabled as set forth in Rule 202.14, Table No. 2 of 20 CFR
Part 404, Subpart P, Appendix 2. Id. Therefore, the Council concluded that the Plaintiff became
disabled within the meaning of the Act pursuant to Section 1614 (a)(3)(A) on December 28,
2011. Id.; 42 U.S.C.
§ 1614(a)(3)(A). On November 3, 2015, Plaintiff filed the Complaint (ECF
No. 1, Complaint (“Compi.”)) which initiated the appeal currently before this Court contesting
the finding that Plaintiff is not disabled for the time period of June 1, 2007 through December
27, 2011. R. at6; Compl.J4.
B. Factual Background
1. Plaintiffs Testimony
Plaintiff, Carolyn L. Lagg, born on December 29, 1956, was 53 years old on the date of
filing for SSI and DIB. R. at 6; 122. Plaintiff testified before AU Olarsch on November 13,
2013 in Newark, New Jersey. During this hearing, Plaintiff testified that she completed
approximately two and a half years of college and that in addition to food stamps her former
spouse provides her with financial support. Id. at 78; 109. Plaintiff asserted she was last
employed in 2007 as a sales representative and because of shoulder issues she was unable to
perform her duties, ultimately resulting in her termination. Id. at 78-9.
Plaintiff further testified that she experiences constant pain in her lower back due to back
spasms and four herniated and bulging discs for which she is prescribed Percocet. R. at 85; 101.
As a result of her lower back pain, Plaintiff stated that she is unable to sleep or perform daily
activities such as grocery shopping, cleaning or laundry. Id. at 85; 100. Plaintiff further explained
that her back pain radiates down her legs, which affects her ability to walk, sit or stand. Id.
at $6. Plaintiff testified that due to her back spasms she is only able to sleep two hours at a time
without interruption and that she is also forced to sleep on her surgical shoulder, which she
explained is bothersome as it is arthritic. Id.
Plaintiff testified that she is able to sit for twenty minutes at a time, that she is able to lift
about two and a half pounds and that pain in her back, leg and shoulder would prevent her from
lifting any more than this weight. Id. at $6; $9; 90. However, Plaintiff further clarified that she
would only be able to lift less than two pounds with her dominant, non-surgical shoulder. Id. at
92. Plaintiff asserted that she has difficulty with stairs and must sit while in the shower. Id. at
Plaintiff testified that she suffers from anxiety and is prescribed Tranxene to treat this
condition. Id. at 99-100. Plaintiff asserted that she has at least two anxiety attacks a day and that
she also suffers from panic disorder. Id. at 100; 106. Plaintiff stated that she drives once a week
from her house to Walgreens, which is a distance of approximately eight-tenths of a mile. Id.
Plaintiff stated that she otherwise spends her typical day “in the house all day long, seven days a
week.. focusing on
 these problems” and because of these issues her “life has come to an end
for the last six years.” Id. at 104; 108. Plaintiff stated that she never has a “good day” whether
due to her physical limitations, mental impairments or both. Id. at 107.
2. Medical Evidence for the Relevant Time Period
In April 2007 an MRI of Plaintiffs right shoulder revealed a partial tear. Id. at 60; 344.
Soon thereafter in August 2007 orthopedist Dr. Samuel Snyder, M.D., operated on Plaintiffs
right shoulder to repair the tear. Id. at 420. Plaintiffs shoulder improved however Plaintiff
began to experience stiffness in her left shoulder in January 2008. Id. at 411; 409. Plaintiff
began to attend physical therapy and by May 2008 there was significant improvement. Id. at
399. By October 2008, Plaintiff demonstrated significant improvement in her range of motion
and by November 2008, Plaintiffs range of motion was near normal in her right shoulder and
progressing in her left. Id. at 385.
In 2010 a lumbar spine MRI revealed left paracentral/forarninal disc hemiation
contacting the left L3 nerve root, exerting pressure on the thecal sac, smaller left foraminal disc
herniation, with an annular tear and minimal disc bulging at L5-S1. Id. at 367. The lumbar MRI
also revealed a possible aneurysm. Id. at 366; 758. Dr. Howard Baruch, M.D. examined Plaintiff
in July 2010 and recommended Plaintiff seek follow up for the possible aneurysm by visiting the
emergency room. Dr. Baruch rendered Plaintiff able to perform light duty work absent heavy
lifting and overhead reaching with the left upper extremity. Id. at 697-98. Tn April 2010, Dr.
Robert Kayal, M.D., assessed Plaintiff and detennined she had a 5/5 normal gait, normal reflexes,
mildly positive Hawkin’s test, some shoulder and lower back tenderness. Id. at 460-65;
77. In January 2011, Dr. Kayal found Plaintiffs complaints of pain in her leg and ankle were
inconsistent with MRI findings. R. at 535; 755.
STANDARD OF REVIEW
This Court must affinn the AU’s decision if it is supported by substantial evidence. 42
§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). “Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion,” and “[i]t 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). The “substantial evidence
standard is a deferential standard of review.” Id. The AU is required to “set forth the reasons
for his decision” and not merely make conclusory unexplained findings. Bttritett v. Comm ‘r of
Soc. Sec, 220 F.3d 112, 119 (3d Cir. 2000). But, if the AU’s decision is adequately explained
and supported, the Court is not “empowered to weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 f.2d 1178, 1182 (3d Cir. 1992). It does
not matter if this Court “acting de novo might have reached a different conclusion” than the
Commissioner. Monsoitr Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)). Finally,
the Third Circuit has made clear that “Burnett does not require the AU to use particular
language or adhere to a particular format in conducting his [or her] analysis. Rather, the function
of Burnett is to ensure that there is sufficient development of the record and explanation of
findings to permit meaningful review.” Jones, 364 F.3d at 505.
THE FIVE STEP EVALUATION PROCESS TO DETERMINE DISABILITY
UNDER THE ACT
The Social Security Act authorizes the Administration to pay a period of disability,
disability insurance benefits and supplemental security income to disabled individuals. 42 U.S.C.
§ 423 (a); 1382. Pursuant to the Act, disability is defined as the “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 twelve months.” 42 U.S.C.
§ 423(d)(l)(A). A
person is unable to engage in substantial gainful activity when his physical or mental
impairnient(s) are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of work
which exists in the national economy.” 42 U.S.C.
The Regulation promulgated under the Act sets forth a five-step process to be used by the
AU to determine whether or not the claimant is disabled within the meaning of the Act. 20
§ 404.1520(a)(l), 416.920(a)(l). The claimant bears the burden of proof at steps one
through four whereas the Administration bears the burden at step five. Fottlos v. Comm ‘r of Soc.
Sec., 474 F. 3d 88, 92 (3d Cir. 2007)
Rarnirez v. Barnhart, 372 F. 3d 546, 550 (3d Cir.
2004)). The first step in the sequential evaluation process requires that the AU determine
whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.
404.1520(a). If it is found that the claimant is engaged in substantial activity, the disability claim
will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Alternatively, if it is found that the
claimant is not engaged in substantial gainful activity the evaluation proceeds to step two. (Id.).
At step two, the AU must determine whether the claimant suffers from a severe impairment. 20
§ 404.1520(c). If the claimant fails to show that her impainnents are “severe,” she is
ineligible for disability benefits. However, if the AU finds that the showing indicates claimant’s
disability is severe, the analysis proceeds to step three. At step three, the AU then evaluates
whether the claimant’s severe impairment is listed or is equivalent to an impairment set forth by
the Code. 20 C.F.R.
§ 404.1520(d). If a claimant does not suffer from a listed impairnient or its
equivalent, the analysis proceeds to steps four. Step four requires that the AU make specific
findings of fact as to the claimant’s residual functional capacity and also as to the mental and
physical demands of the claimants past relevant work. After both of these finding are made, the
ALl must compare the RFC to the past relevant work to determine whether Claimant retains the
RFC to perform the past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden
of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43,
46 (3d Cir.1994). If at step four, the evaluation indicates that the claimant is unable to resume
past relevant work or any employment history does not qualify as past relevant work, the
evaluation moves to step five. Jones, 364 f.3d at 503. The final step shifts the burden of proof to
the “Administration to show that the claimant is capable of performing other jobs existing in
significant numbers in the national economy, considering the claimant’s age, education, work
experience and [Rf C].” Ramirez, 372 F.3d at 551; 20 C.F.R.
§ 404.1520(f). The ALl must
analyze the cumulative effect of all the claimant’s impairments in determining whether she is
capable of performing work and is not disabled. Jones, 364 f.3d at 503.
Additionally, under the Act, disability must be established by objective medical evidence.
To this end, “[a]n individual’s statement as to pain or other symptoms shall not alone be
conclusive evidence of disability as defined in this section.” 42 U.S.C.
a finding that one is disabled requires:
§ 423(d)(5)(A). Instead,
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnornialities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to
be furnished under this paragraph. would lead to a conclusion
that the individual is under a disability.
Id.; see 42 U.S.C.
§ 13$2c(a)(3)(A). F actors to consider in determining how to weigh evidence
from medical sources include: (1) the examining relationship; (2) the treatment relationship,
including the length, frequency, nature, and extent of the treatment; (3) the supportability of the
opinion; (4) its consistency with the record as a whole; and (5) the specialization of the
individual giving the opinion. 20 C.F.R.
AU Olarsch engaged in the five-step evaluation process and found Plaintiff not disabled
as defined by the Act. At step one, the AU found that Plaintiff had not engaged in substantial
gainful activity since the date of the alleged onset, June 1, 2007. R. at 57. At step two, AU
Olarsch found that Plaintiff suffered from the following severe impairments: back disorder,
thyroid disorder, and affective disorder. Id. However, the ALl determined at step three, that
Plaintiffs impairments or combination impairments neither met nor medically equaled in
severity any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925; 416.926(b). Additionally at this step,
AU Olarsch determined Plaintiffs residual functional capacity allowed Plaintiff “to perform
light work as defined in 20 CFR
§ 404.1567 (b) and 4 16.967 (b) except with no more than
occasional postural maneuvers, cannot raise left upper extremity overhead, limited to unskilled
tasks and will be off task ten percent of [the] time.” R. at 59.
Next, at the fourth step, the AU found that the Plaintiffs residual functional capacity
precluded the Plaintiff from performing the requirements of her past relevant work as a Sales
Representative or Receptionist. Id. at 64. At the final step, AU Olarsch heard the testimony of a
vocational expert and found the vocational expert’s testimony to be consistent with the
information contained in the Dictionary of Occupational Titles. Id. at 65. AU Olarsch
concluded, after taking into consideration the age, education, work experience, and residual
functional capacity of the Plaintiff as well as the vocational expert’s testimony, that a significant
number ofjobs exist in the national economy in which Plaintiff is capable of successfully
adjusting to the demands as required by those occupations. Id. Accordingly, under the
framework of the sequential evaluation process, the AU determined a finding of not disabled
appropriate as defined by the Act4. Plaintiff challenges the AU’s RFC determination, the
hypothetical posed to the vocational expert, and the weight accorded to Plaintiffs treating
physicians. Below the Court will address each contention in turn.
A. Substantial Evidence Supports AU Olarsch’s RFC Assessment
Plaintiff argues that the AU’s RFC assessment failed to accurately depict the Plaintiffs
abilities and limitations by neglecting to account for a psychiatric impainhient that at step two the
AU found as severe. Plaintiff further argues that since the AU omitted this impairment from
his analysis, the occupational base regarding the ability to perform unskilled work did not
properly reflect the ability to perform the relevant work. Plaintiffs argument is inapposite and
the Court finds that substantial evidence supports AU Olarsch’s RFC finding.
However, it is again noted that due to the Appeals Council’s order, Plaintiffs appeal concerns the period of June 1,
2007 through December 27, 2011.
The RFC refers to the most a claimant can do despite his limitations. 20 C.F.R.
404.1545(a), 416.945(a); SSR 96—8p, 1996 WL 374184, at *12. The RFC is an administrative
finding that the ALl is solely responsible for determining, based on consideration of the record
as a whole. See 20 C.F.R.
§ 404.1527(e). th making the RFC determination, the Third Circuit
has made clear that an AU is not required “to adhere to any set format for explaining his [or her]
analysis so long as there is ‘sufficient development of the record and explanation of findings to
permit meaningful judicial review.” Garrett v. Comm’ of Soc. Sec., 274 F. App’x 159, 162-63
(3d Cir. 2008)(quoting Jones, 364 F.3d at 505). Tn accordance with Third Circuit precedent,
AU Olarsch provided detailed findings related to Plaintiffs limitations and referenced the state
examiner opinions and other medical evidence. See R. at 59-64. For example, AU Olarsch notes
that at the previous administrative hearing Plaintiff did not indicate that she suffered from any
mental impairments. AU Olarsch also cites to the consultative exam of November 2010 which was
“unremarkable for evidence of mental impairment with the claimant able to complete almost all
tests for memory, focus persistence and judgment.” Id. at 62. The AU further highlights that the
record does not show any history of psychological treatment. Id.
Furthermore, Plaintiffs contention that the AU erred by failing to take into account her
affective disorder notwithstanding the AU’s finding at step two of this impairnient as severe is
irrelevant to the RFC determination because as noted above when determining a claimant’s RFC,
the AU has a duty to consider all evidence before him but is only required to include a
claimant’s “credibly-established limitations.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999);
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.2005). At the outset the AU notes that “afler
careful consideration of the evidence, [he] find[s] that claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this [administrative] decision.” R.
Olarsch stated that the Plaintiff has not undergone
specialized mental health treatment yet the record reveals Plaintiff suffers from anxiety and
the medical records indicate she has been prescribed Tranxene by her primary care physician. Id.
at 62. However, the administrative decision notes that the record fails to indicate any psychiatric
treatment or hospitalizations resulting from a mental impainrient. Id.
explained that the record does not support a finding that Plaintiffs mental impairments would
be “severe enough to interfere with work function, given that [Plaintiff] apparently worked
with this condition in the past, as she reported she has had anxiety for over 25 years at her
November 2010 consultative exam” nevertheless the ALl credited Plaintiffs testimony regarding
her physical pain and fatigue, finding that this would “reasonab[ly] interfere with her ability to
stay on task or sustain the ability for complex work.” Id. at 63. Based on the foregoing, the Court
finds that the AU’s Rf C assessment is supported by substantial evidence.
B. The Vocational Expert’s Testimony Constitutes Substantial Evidence to Support the
AU’s RFC Determination
Plaintiff argues that because the vocational expert based her testimony on the ALl’s
flawed RFC determination, the vocational expert’s evaluation of the jobs Plaintiff is able to
perfonri is also flawed. Plaintiff additionally argues that the ALl erred by failing to specifically
question the vocational expert as to whether her testimony was consistent with the Dictionary of
Occupational Titles (“DOT”). In support of this argument, Plaintiff claims that although the AU
found that the vocational expert’s testimony is consistent with the information contained in the
DOT, the DOT does not specifically address the issue of directionality with respect to a claimant’s
ability to reach and the DOT fails to enumerate an acceptable portion of the day in which an
individual may be off-task. Plaintiff therefore contends that the standards of SSR 00- 4p were
not properly considered. P1.’s Br. 2. The Court finds Plaintiffs argument unpersuasive.
To the extent that Plaintiffs attack on the hypothetical is that all his alleged impairment
were not addressed, he in essence is making another attack on the RFC finding itself (see
Rtttheiford, 399 F.3d at 554 n.8), which this Court has already rejected as discussed above.
Furthermore, an AU’s hypothetical question need not include “every impairment alleged by a
claimant,” but only those that are “medically established.” Barnhart, 399 F.3d at 554 (emphasis
in original); see also Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (“A hypothetical
question must reflect all of a claimant’s impairments that are supported by the record; otherwise
the question is deficient and the expert’s answer to it cannot be considered substantial
evidence.”). During the administrative hearing, AU Olarsch specifically questioned the
vocational as to the ability of “a hypothetical individual with the claimant’s education, training
and work experience, limited to the full range of light work is limited to the performance
occasional performance of posturals, is limited to or is unable to raise lefi upper extremity above
shoulder, limited to unskilled task” to perform the past relevant work of the Plaintiff. R. at 114.
The AU further inquired that “if pain limited the hypothetical individual to being off task up to
10 percent of the workday, would the [vocational expert’sl answer be the same.” Id. at 115. The
vocational expert determined that based on the hypothetical posed by the AU, jobs exist in
excess in the region and national economy that the so described individual could perfonm Id.
These positions include ticket printer, tagger, cashier, and labeler. Id. The vocational expert is
not required to provide anything other than his own experience and knowledge when providing
her testimony. See 2000 SSR LEXIS 8, *2. However, a vocational expert’s testimony must be
based upon a hypothetical that “accurately portrays the claimant’s individual physical and mental
impairments” that are medically established as provided by AU Olarsch. Podedworny v. Harris,
745 F.2d 201, 218 (3d Cir.1984). The Court finds that the AU’s hypothetical adequately
captured all of Plaintiffs medically established impairments and the vocational expert rendered
her opinion based on her skill, experience and the DOT.
In regards to Plantiffs contentions with any apparent DOT conflicts, the Court highlights
that “reasonable explanations for such conflicts, which may provide a basis for relying on the
evidence from the VE or VS, rather than the DOT information, include, but are not limited to the
Evidence from VEs or VSs can include information not listed in the DOT. The DOT
contains information about most, but not all, occupations. The DOT’s occupational
definitions are the result of comprehensive studies of how similar jobs are performed in
different workplaces. The term “occupation, as used in the DOT, refers to the collective
description of those jobs. Each occupation represents numerous jobs. Information about a
particular job’s requirements or about occupations not listed in the DOT may be available
in other reliable publications, information obtained directly from employers, or from a
VE’s or VS’s experience in job placement or career counseling.
The DOT lists maximum requirements of occupations as generally performed, not the
range of requirements of a particular job as it is performed in specific settings. A VE, VS,
or other reliable source of occupational infonnation may be able to provide more specific
information about jobs or occupations than the DOT.
2000 SSR LEXIS $, *5.6. As specifically resolved above in SSR OO-4p, Plaintiffs argument
regarding such apparent conflicts carries no weight and the vocational expert’s testimony
constitutes substantial evidence.
C. Substantial Evidence Supports the Weight AU
Olarsch Afforded to the
Plaintiff argues that the AU failed to accord sufficient weight to the opinions of treating
physicians, Dr. Samuel J. Snyder, M.D. and Dr. Joseph DeFeo, M.D, and allocated too much
weight to non-treating physician Dr. Howard Baruch. Pl.’s Br. 2. The Court finds Plaintiffs
argument without merit.
In support of her argument, Plaintiff purports that “the AU is not a medical professional
and therefore may not rely on his own lay interpretation of the record. As such, [the AU] may
not substitute his own opinion of the record and symptoms in the place of qualified medical
professionals that exercised the opportunity to either treat or examine the claimant.” Pl.’s Br. 3.
It is well established under Third Circuit Precedent and the Act’s promulgating regulations that
“the AU—not treating or examining physicians or State agency consultants—must make the
ultimate disability and RFC determinations.” Chandler v. Comm ‘r of Soc. Sec., 667 F.3d 356,
361 (3d Cir. 2011) (citing 20 C.F.R.
§ 404.1527(e)(1), 404.1546(c)). Furthermore, while an
AU must consider the opinions of treating physicians, “[t]he law is clear.
that the opinion of
a treating physician does not bind the AU on the issue of functional capacity” where it is not
well supported or there is contradictory evidence. C7zandler, 667 F.3d at 361 (alteration in
original) (quoting Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); 20 C.F.R.
404.1527(c)(2); see also Coleman v. Comm ‘r. of Soc. Sec. Admin., 494 fed App’x 252, 254 (3d
Cir. Sept. 5, 2012) (“Where, as here, the opinion of a treating physician conflicts with that of a
non-ti-eating, non-examining physician, the AU may choose whom to credit but cannot reject
evidence for no reason or for the wrong reason.”) (quoting Morales v. Apfel, 225 f.3d 310, 317
(3d Cir. 2000)); 20 C.F.R.
§ 404.1527(c)(3) (“The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and laboratory findings, the more
weight we will give that opinion. The better an explanation a source provides for an opinion, the
more weight we will give that opinion.”).
Dr. Samuel Snyder, M.D.
Substantial evidence supports AU
Olarsch’s findings as the administrative decision
develops the AU’s reasoning for placing little weight on Dr. Snyder’s opinion. “An AU may
reject a treating physician’s opinion outright only on the basis of contradictory medical evidence,
but may afford a treating physician’s opinion more or less weight depending upon the extent to
which supporting explanations are provided.” Flummer, 186 f.3d at 429. AU Olarsch explained
that as Dr. Snyder detennined that Plaintiff suffers from “constant unremitting pain” for which
Dr. Snyder prescribed Percocet, the record did not indicate that Dr. Snyder referred Plaintiff to a
pain management specialist or any further treatment for this condition. R. at 61. AU Olarsch
further explains that although the medical source statement indicated that Dr. Snyder treated the
Plaintiff from May 2007 through August 2012, Dr. Snyder’s treatment records appear to end in
March 2010. Id. Notwithstanding an intervening two-year period providing the opportunity to
submit any medical evidence, the record reflects none. Id. AU Olarsch further determined that
“Dr. Snyder’s August 2012 opinion of extreme exertional limitations is not well supported by his
own treatment records and therefore his opinion lacks credibility.” Id.
Dr. Joseph DeFeo, M.D.
Substantial evidence also supports the weight AU Olarsch gave to Dr. Defeo’s medical
opinion. Id. at 63. As Third Circuit precedent sets forth, “the AU [is required to] indicate that
s/he has considered all the evidence, both for and against the claim, and provide some
explanation of why s/he has rejected probative evidence which would have suggested a contrary
[T]he AU is not required to supply a comprehensive explanation for the
rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.” See
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Accordingly, AU Olarsch explains that Dr.
DeFeo’s assessments are of little probative value as “Dr. DeFeo was obviously hired to perfonn
a one-time exam and evaluation in support of the claimant’s applications.” Id. Dr. DeFeo
assessed Plaintiff as capable of sitting, standing and walking no more than an hour a day and
lifting/carrying no more than five pounds occasionally. Id. AU
Olarsch opines “this near
bedridden level of activity is not supported by the record as a whole. Paradoxically, Dr. Defeo
also indicated the claimant’s pain and anxiety to interfere with her ability to work constantly, but
still assessed her as capable of moderately stressful work.” Id. AU Olarsch notes that these
assessments conflict however no reasons have been provided to support their reconciliation. Id.
In concluding, the AU states that as Dr. Defeo performed his examination for purposes of
litigation, his assessment lends less reliability as those of the claimant’s maximum functional
Dr. Howard Baruch, M.D.
Lastly, Plaintiff argues that the AU
wrongly identified Dr. Banich as Plaintiffs
“personal physician” and gave Dr. Baruch’s medical opinion more weight than Plaintiffs treating
physician and surgeon. The Court finds Plaintiffs contention without merit as the
administrative decision does not acknowledge Dr. Baruch as Plaintiffs treating physician and
weighs Dr. Baruch’s opinion in light of the record. Id at 61; 64. AU Olarsch asserts that based
on both Dr. Baruch and Dr. Snyder’s assessments the administrative finding incorporates a
limitation to overhead reaching with the left upper extremity into the residual functional capacity.
Id. As AU
Olarsch provides more than a mere scintilla of evidence in support of this
determination and it is not the role of this Court to reweigh the evidence and reach its own
conclusions, the Court affirms AU Olarsch’s decision on this issue. Williams, 970 F.2d at 1182.
The Court has reviewed the entire record and for the foregoing reasons concludes that
AU Olarsch’s decision that the Plaintiff is not disabled is supported by substantial evidence.
Accordingly, ALl Olarsch’s decision is affirmed for the relevant time period, June 1, 2007
through December 27, 2011. An appropriate Order follows this Opinion.
ED STATES DISTRICT JUDGE
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