FAURE v. ASTRUE

Filing 17

ORDER THAT PLAINTIFF'S OBJECTIONS ARE OVERRULED. MAGISTRATE JUDGE RICE'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE CLERK SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 11/20/12. 11/20/12 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COLLEEN FAURE
v.
MICHAEL J. ASTRUE

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CIVIL ACTION

NO. 11-7736

ORDER
AND NOW, this 20th day of November, 2012, upon careful
and independent consideration of plaintiff Colleen Faure’s
(“Faure”) brief and statement of issues in support of request
for review (docket entry # 11), defendant Michael J. Astrue's
response thereto (docket entry # 12), Faure’s reply (docket
entry # 14), the Honorable Timothy R. Rice’s report and
recommendation (docket entry # 15), Faure’s objection thereto
(docket entry #16), and the Court finding that:
(a)

Faure filed an application for Social Security

Disability Insurance (SSD) benefits on January 29, 2009, R. 19;
(b)

The Social Security Administration denied Faure’s

application on April 21, 2009, R. 84;
(c)

Faure filed a request for a hearing, which the

Administrative Law Judge (“ALJ”) held on November 10, 2009, R.
33-80;
(d)

On February 25, 2010, the ALJ issued a decision

that Faure was not disabled because though she could not return

to work she had done in the past, she could perform other jobs,
R. 16-29;
(e)

Faure appealed this decision to the Appeals

Council, R. 14-15, which affirmed the ALJ’s decision and denied
Faure’s request for review;
(f)

Faure then timely commenced this action;

(g)

On August 16, 2012, Magistrate Judge Timothy R.

Rice issued a report and recommendation (“R & R”) in which he
found the ALJ’s decision to be supported by substantial
evidence;
(h)

Specifically, Judge Rice found that (1) the ALJ

properly granted limited weight to the treating physician’s
opinion and (2) the ALJ reasonably discredited Faure’s testimony
about the severity and functionally limiting effects of her pain
and symptoms, R & R 1;
(i)

Faure filed objections to these two findings;

(j)

28 U.S.C. § 636(b)(1)(B) provides that when a

party files “written objections to [a Magistrate Judge’s]
proposed findings or recommendations,” our Court shall “make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made”;

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(k)

The standard by which we conduct this review

provides that we are to uphold the Commissioner’s final decision
if “substantial evidence” supports it, 42 U.S.C. § 405(g); Smith
v. Comm’r of Soc. Sec., 631 F.3d 632, 633 (3d Cir. 2010);
(l)

Our Court of Appeals defines substantial evidence

as “more than a mere scintilla.

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion”, Smith, 631 F.3d at 633 (quoting Reefer v. Barnhart,
326 F.3d 376, 379 (3d Cir. 2003));
(m)

In assessing whether substantial evidence

supports the ALJ’s determination, and thus the Commissioner’s
final decision, we are to “defer[] to [the ALJ’s] evaluation of
the evidence, assessment of the credibility of witnesses, and
reconciliation of conflicting expert opinions”, Diaz v. Comm’r
of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009);
(n)

And in making this assessment, we cannot “‘weigh

the evidence or substitute [our own] conclusions for those of
the fact-finder’”, Rutherford v. Barnhart, 299 F.3d 546, 552 (3d
Cir. 2005) (quoting Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (alteration in original);
(o)

Faure objects first to the Judge Rice's

conclusion that the ALJ gave proper weight to the opinion of
Faure’s treating physician, Dr. John Kohler, though the ALJ
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ultimately did not agree with Dr. Kohler that Faure was unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment or
combination of impairments under §§ 216(i) and 223(d) of the
Social Security Act, see R&R at 14, Pl. Obj. 1;
(p)

Faure objects to this finding by arguing that (1)

the ALJ lacks a substantial basis for the conclusion that Dr.
Kohler based his assessment primarily on Faure’s assertions and
complaints, Pl. Obj. 1; (2) the ALJ committed a legal error of
substituting her own judgment for that of Dr. Kohler, Pl. Obj.
2; (3) the ALJ omits important notations in Dr. Kohler’s
records, Pl. Obj. 2-3; (4) the ALJ’s decision that Dr. Kohler’s
opinion is inconsistent with Faure’s activities of daily living
lacks a substantial basis1, and we address each objection in
turn;
(q)

As to Faure’s objection that the ALJ’s finding

that Dr. Kohler’s assessment was based primarily on Faure’s
assertions lacks a substantial basis, we disagree;

1

Plaintiff does not use the phrase “substantial basis”; instead
she argues that the ALJ’s failure to consider evidence that
contradicted the ALJ’s conclusion was “clear error of law.”
Because we review the ALJ’s conclusion to determine whether it
had a substantial basis in the record, we will apply that
standard here.
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(r)

The ALJ found that “Dr. Kohler appears to have

based his assessment primarily if not solely upon the claimant’s
assertions and complaints”, R. 27;
(s)

This finding was based on the lack of

“documentary medical evidence of significant musculoskeletal or
neurologic compromise” in the record, R. 27, 187-90, 214-56,
228-29, 232-34, 239, 257-71, 305-06, 308, 348-52, 469; Dr.
Kohler’s frequent notations that Faure had no difficulty or
“mild difficulty” getting on the examination table and moving
her head, and that she had a “relatively normal gait”, R. 16-18,
320-25, 329-30, 332, 335-40, 342, 345-46, 372-80, 384-97, 40011, 421-28, 430, 435-36, 440-41, 444, 447, 450-56, 458-65; and
the fact that Dr. Kohler’s reports indicate “only routine,
conservative, outpatient care,” R. 27, 316–346;
(t)

This is more than a “mere scintilla” of evidence,

Smith, 631 F.3d at 633; instead, it provides a substantial basis
for the ALJ’s conclusion;
(u)

As to Faure’s objection that the ALJ committed a

legal error of substituting her opinion for Dr. Kohler’s
opinion, we disagree;
(v)

As the Commissioner argued in his response to

request for review, “The RFC [residual functioning capacity] is
an administrative determination of what a claimant can still do
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despite his or her limitations and . . . the ALJ, and not a
treating or examining physician, is responsible for assessing
RFC”, Comm. Resp. at 10;
(w)

Regulations and case law support the

Commissioner’s position, see 20 C.F.R. §§ 404.1545(a) (“We will
assess your residual functional capacity based on all the
relevant evidence in your case record”), 404.1546(c) (“[T]he
administrative law judge or the administrative appeals judge . .
. is responsible for assessing your residual functional
capacity”); Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361
(3d Cir. 2012) (“’[t]he law is clear . . . that the opinion of a
treating physician does not bind the ALJ on the issue of
functional capacity’”) (quoting Brown v. Astrue, 649 F.3d 193,
197 n.2 (3d Cir. 2011)) (alterations in original);
(x)

Though a treating physician’s opinion is entitled

to 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]
case record,” 20 C.F.R. § 404.1527(c)(2), the ALJ may reject
such a treating source’s opinion “on the basis of contradictory
medical evidence,” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999), or if there is a lack of supporting clinical data,
Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985);
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(y)

In this case, the ALJ may not make “speculative

inferences from medical reports” or reject a treating
physician’s opinion based on “her own credibility judgments,
speculation or lay opinion”, Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000), instead, the ALJ must “determine the weight of
the opinion” of the treating physician by considering factors
such as the length of the treatment relationship, the medical
support for the opinion, and the consistency of the opinion with
the record as a whole, 20 C.F.R. § 404.1527(c)(2);
(z)

Here, rather than substitute her judgment for

that of the treating physician, the ALJ considered Dr. Kohler’s
opinion in light of the factors 20 C.F.R. § 404.1527(c) outlines
and reached a different conclusion;
(aa) As discussed above, the conclusion the ALJ
reached was supported by a substantial basis in the record;
(bb) Faure’s next argument is that the ALJ’s report
“omit[ted] important notations in Dr. Kohler’s records regarding
the severity of Plaintiff’s pain” and “ongoing difficulty
sleeping”, Pl. Obj. 2-3;
(cc) We disagree; these notations fall under the ALJ’s
conclusion that “Dr. Kohler appears to have based his assessment
primarily if not solely upon the claimant’s assertions and

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complaints,” R. 27, and these notations do not undermine the
substantial basis in the record for the ALJ’s findings;
(dd) Finally, as to Faure’s objection that the ALJ
lacks a substantial basis for her finding that Dr. Kohler’s
opinion is inconsistent with Faure’s activities of daily living,
we disagree;
(ee) The record shows that Faure could engage in the
following daily activities, among others: shopping for
groceries, running errands, going to fairs, working part-time at
the library, attending parties, doing household chores, and
socializing, R. at 316, 320-21, 323-25, 332, 374, 378;
(ff) Plaintiff objects that “while Dr. Kohler often
makes reference to various activities his patient has performed
. . . he also notes that these activities generally exacerbate
her pain and require her to either interrupt them or to rest up
to several days after undertaking such activities”, Pl. Obj. 34;
(gg) Though the ALJ did not specifically allude to
these notations, she did refer to them generally in her finding
that Dr. Kohler’s assessment was “inconsistent with the
claimant’s self-reported activities of daily living as
documented in Dr. Kohler’s own progress notes”, R. 27, and these

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notations do not undermine the substantial basis in the record
that supports the ALJ’s conclusion of inconsistency;
(hh) Faure next objects to Judge Rice’s affirmance of
the ALJ’s rejection of her credibility, Pl. Obj. 4;
(ii) The ALJ noted that she had “serious reservations
as to whether the claimant’s assertions can be considered fully
creditable concerning the degree of severity of her
impairments,” due to “inconsistencies in the record which do not
reflect well on the totality of the claimant’s allegations,” R.
24;
(jj) We generally defer to an ALJ’s finding of
credibility because “she has the opportunity at a hearing to
assess a witness’s demeanor”, Reefer v. Barnhart, 326 F.3d 376,
380 (3d Cir. 2003) (citing Atl. Limousine, Inc. v. NLRB, 243
F.3d 711, 718 (3d Cir. 2001), and as such, “if supported by
substantial evidence, the ALJ’s credibility findings may not be
disturbed upon appeal”, Hirschfeld v. Apfel, 159 F. Supp. 2d
802, 811 (E.D. Pa. 2001) (citing Van Horn v. Schweiker, 717 F.2d
871, 871 (3d Cir. 1983));
(kk) Our Court of Appeals has explained that when
making a credibility determination, an ALJ must pose questions
to the plaintiff that would enable her to assess the plaintiff’s

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credibility, Reefer, 326 F.3d at 3802, which the ALJ did in this
case, R. 35-73;
(ll) An ALJ must “give serious consideration to a
claimant’s subjective complaints of pain, even where those
complaints are not supported by objective evidence,” Mason v.
Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993), but an ALJ may
discredit those complaints where “there exists contrary medical
evidence”, id. at 1067-68 (citing Carter v. Railroad Retirement
Bd., 834 F.2d 62, 65 (3d Cir. 1986));
(mm) The ALJ’s assessment of subjective complaints of
pain should also consider daily activities, the frequency of
pain and other symptoms, medication and other treatment, and
functional limitations the pain causes, see 20 C.F.R. §
404.1529(c)(3);
(nn) Here, medical evidence contradicted the
complaints of pain; as we have noted, the ALJ found that the
record lacked “medical evidence of significant musculoskeletal
or neurologic compromise”, R. 27;
(oo) Furthermore, the ALJ found “that there are
inconsistencies in the record which do not reflect well on the

2

We note also that in Reefer, the court emphasized the
importance of such questioning in order to allow a pro se
plaintiff to fully develop the administrative record, Reefer,
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totality of the claimant’s allegations”, R. at 24, and she cited
to conflicting evidence to support this finding, R. at 24-25;
(pp) For example, among other inconsistencies, the ALJ
noted that
While the claimant testified that her March
and June 2009 motor vehicle accidents
further limited her, July 15-29, 2009
progress notes reveal that the claimant
socialized with friends, that she helped a
friend with a college essay, that she
babysat two children and took them to the
park, that she performed household chores
such as cleaning and laundry, and that on at
least one occasion she ran errands for three
hours, that she was able to go to the mall
and shopped in stores, that she attended a
carnival, and that she attended a Philies
[sic] game . . .
R. at 24-25; and
(qq) The ALJ thus supported her credibility
determination with substantial evidence, and we will not disturb
that judgment here;
It is hereby ORDERED that:
1.

Plaintiff’s objections (docket entry # 16) are

OVERRULED;
2.

Magistrate Judge Rice’s report and recommendation

(docket entry # 15) is APPROVED and ADOPTED; and

326 F.3d at 380.

This concern is less acute here, where
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3.

The Clerk shall CLOSE this case statistically.

BY THE COURT:

/S/ Stewart Dalzell, J.

plaintiff was represented by counsel throughout the proceedings.
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