RODRIGUEZ v. ASTRUE

Filing 20

ORDER THAT RODRIQUEZ'S OBJECTIONS (DOC. NO.19) ARE OVERRULLED; JUDGE SITARSKY'S 6/14/2013 REPORT AND RECOMMENDATION (DOC. NO.18) IS APPROVED AND ADOPTED; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 10/4/2013. 10/4/2013 ENTERED AND COPIES E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EULALIA LALA RODRIGUEZ
v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security 1

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CIVIL ACTION

NO. 12-812

ORDER
AND NOW, this 4th day of October, 2013, upon
consideration of our August 13, 2012 Order to refer this matter
to the Honorable Lynne A. Sitarski in accordance with the
procedure for the random assignment of Social Security cases,
Local Rule 72.1, and 28 U.S.C. §636(b)(1)(B) (docket entry #14);
after careful and independent review of the Report and
Recommendation of United States Magistrate Judge Lynne A.
Sitarski (docket entry #18) which recommends that plaintiff’s
request for review be denied, and plaintiff’s objections to the
Report and Recommendation (R&R), and the Court finding that:
(a)

Rodriguez’s request for review under 42 U.S.C.

§405(g) is before us for a second time, R&R at 1-2;
(b)

Rodriguez originally applied for Disability

Insurance Benefits (DIB) and Supplemental Security Income (SSI)
on July 27, 2006, alleging that she had been disabled since July

1

Carolyn W. Colvin became the Acting Commissioner of
Social Security on February 14, 2013 and accordingly is
substituted as defendant pursuant to Fed. R. Civ. P. 25(d)(1).

12, 2006 due to high blood pressure, anxiety, depression and
panic attacks, Report and Recommendation I, dated April 10, 2010
(R&R I) (docket entry # 8, Exhibit 10 at 9);
(c)

After Rodriguez’s application was denied, an

Administrative Law Judge (ALJ) held a hearing at which she was
represented, and he determined in a October 20, 2008 decision
that Rodriguez was insured for disability benefits through
December 31, 2007 but was not entitled to DIB or SSI;
additionally, he found she was capable of performing a
significant number of jobs that exist in the national economy,
id., a decision she appealed on March 23, 2009, id.;
(d)

At the conclusion of the prior proceeding, C.A.

No. 09-1249, we approved and adopted Judge Sitarski’s Report and
Recommendation, agreeing with her conclusion that the ALJ had
failed to make comprehensive findings with regard to the
plaintiff’s alleged mental impairments and remanding for further
proceedings consistent with Judge Sitarski’s conclusions, June
29, 2010 Order (docket entry # 8, Exhibit 10 at 6);
(e)

The prior Report also noted, because the ALJ had

relied upon and applied “substantial weight” to the opinion of a
state agency psychological consultant even though that
consultant had not examined Rodriguez and was not aware of her

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medical history, id. at 22 and 23, the ALJ should order a
consultative examination if additional medical records, referred
to in the prior hearing, failed to provide sufficient
clarification on remand regarding the plaintiff’s medical
history and treatment, id. at 25;
(f)

On remand, the case was assigned to the same ALJ

who again issued an unfavorable decision, R&R at 2;
(g)

Pursuant to our remand order, the ALJ subpoenaed

all available medical records from the Crisis Center treating
Rodriguez because he found that the records presented in the
first proceeding erroneously referred to a hospital visit in
December, 2007 instead of the prior year, docket entry # 8,
Exhibit 9 at 26;
(h)

The ALJ found that the additional records

obtained on remand provided sufficient clarification to support
a decision on the claim without requiring a consultative
examination, id., and, as to opinion evidence, he again gave
significant weight only to the prior opinion of the nonconsulting state agency psychologist, id. at 37;
(i)

The ALJ issued a decision on April 28, 2011,

concluding that based on her application for SSI filed on July
12, 2006, Rodriguez is not disabled, id. at 40, and the Appeals

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Council found no reason to set that decision aside, R&R at 3;
(j)

Rodriguez argues that the ALJ erred in four ways:

(1) by relying on the opinion of the non-examining psychological
consultant; (2) by rejecting a Residual Functional Capacity 2
(RFC) assessment completed by a social worker under the apparent
approval of Rodriguez’s treating physician; (3) by failing to
order a consultative examination when the additional medical
records failed to provide sufficient clarification; and (4) by
failing to credit the testimony of Rodriguez’s daughter
concerning the plaintiff’s frequent panic attacks, docket entry
# 9 at 3-4;
(k)

Judge Sitarski found that the ALJ’s April 28,

2011 decision was supported by substantial evidence, docket
entry # 18;
(l)

In her R&R, Judge Sitarski found that the ALJ

applied the five-step sequential evaluation process to determine
whether Rodriguez is under a disability, pursuant to 20 C.F.R.
§416.920(a)(4), 3 concluding the record did not support a finding

2

“Residual functional capacity is defined as that
which an individual is still able to do despite the limitations
caused by his or her impairment(s).” Burnett v. Comm’r of Soc.
Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (internal
quotations omitted).
3

The evaluation process is as follow:
4

that either her medical or her mental impairments met the
listing of impairments set forth in 20 C.F.R. Part 404, Subpart
P, Appendix 1, R&R at 5-6, and that Rodriguez could perform
light work subject to certain physical limitations, id. at 6;
(m)

We turn to Judge Sitarski’s conclusions about the

four errors Rodriguez alleges in her brief;
(n)

Regarding the “significant weight” placed on the

state agency psychologist, Judge Sitarski concluded the ALJ’s
reiterated reliance was not error because the ALJ also had the

First, the Commissioner considers whether the
claimant is currently engaged in substantial
gainful activity. If he [or she] is not, then the
Commissioner considers in the second step whether
the claimant has a “severe impairment” that
significantly limits his [or her] physical or
mental ability to perform basic work activities.
If the claimant suffers a severe impairment, the
third inquiry is whether, based on the medical
evidence, the impairment meets the criteria of the
impairment listed in the “listing of impairments,”
.
.
.
which
results
in
a
presumption
of
disability, or whether the claimant retains the
capacity for work. If the impairment does not meet
the criteria for a listed impairment, then the
Commissioner assesses in the fourth step whether,
despite the severe impairment, the claimant has
the residual functional capacity to perform his
[or her] past work. If the claimant cannot perform
his [or her] past work, then the final step is to
determine whether there is other work in the
national economy that the claimant can perform.
Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000); see also
20 C.F.R. §§ 404.1520, 416.920.
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expanded medical record at hand, including both the hospital
records from December 2006 and from her mental-health treatment
from April 28, 2008 to September 8, 2010, which collectively
permitted a conclusion that Rodriguez’s mental impairments were
not so severe as to preclude her doing light work, id. at 8;
(o)

Judge Sitarski also found that it was within the

ALJ’s discretion, as the finder of fact, to reject the social
worker’s assessment that Rodriguez suffered “very serious
impairments in her overall functioning,” because (1) the social
worker was likely not an “acceptable medical source” under 20
C.F.R. 404.1513(a) and (2) the ALJ concluded the social worker’s
opinion was not supported by the objective medical evidence, id.
at 9;
(p)

Judge Sitarski also rejected Rodriguez’s third

contention: as the expanded medical record was sufficient to
support a decision and included mental-health treatment notes
that failed to demonstrate any mental impairment that affected
Rodriguez’s RFC, it obviated the need for a consultative
examination, id. at 10;
(q)

And finally, with respect the ALJ’s credibility

assessment of Rodriguez’s daughter’s testimony that the
plaintiff’s panic attacks interfered with her ability to cook

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and watch her grandson, Judge Sitarski found that the ALJ was
within his discretion to find that this testimony was
contradicted by the objective medical evidence, id.;
(r)

A reviewing court is to determine only whether

the ALJ’s findings are supported by substantial evidence, 42
U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d
Cir. 2005);
(s)

Rodriguez’s objections to Judge Sitarski’s report

can be briefly summarized as follows:
(1) Judge Sitarski’s report ignores this
Court’s prior decision that the state agency
psychologist’s opinion was not substantial
evidence;
(2) The report did not address Rodriguez’s
arguments
that
the
ALJ
should
have
investigated whether the social worker’s
report was a “treating psychologist” report
and that the ALJ should have explained why
he did not consider it, according to the
standard set by SSR 06-03p;
(3) The
report
erred
in
stating
that
Rodriguez had not identified any medical
records the ALJ had failed to subpoena, when
the manifest issue is that Rodriguez was not
sure of treatment dates and therefore the
ALJ should have sought “all the records;”
(4) The report fails to address the ALJ’s
cherry-picking of positive medical notes
from the treatment record, rather than his
failure to order a consultative examination
to do a balance review;
And
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(5) The report fails to address the ALJ’s
misstatement
of
Rodriguez’s
daughter’s
testimony because there was evidence in the
record that Rodriguez had suffered pan
attacks in the past.
(docket entry # 19);
(t)

Rodriguez asks, however, for only two remedies:

that the matter be remanded with instructions that the ALJ not
rely on the opinion of the state agency psychologist and to
obtain either “a clean opinion from the treating psychiatrist”
or a consultative examination, id. at 17, which we will decline
to grant for the reasons set forth below;
(u)

When objections are filed to a magistrate judge's

report and recommendation, we must make a de novo determination
of those portions of the report, findings, or recommendations
made the magistrate judge made to which there are objections.
See 28 U.S.C. §636(b)(1); see also Rule 72.1(IV)(b) of the Rules
of Civil Procedure for the United States District Court for the
Eastern District of Pennsylvania;
(v)

As to her first objection, Rodriguez misreads

this Court’s prior conclusions with respect to the state agency
psychologist: As Judge Sitarski’s first report stated, the ALJ
should first make further efforts to obtain additional and
clarifying information from Rodriguez’s treatment sources, and

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only if the additional records failed to provide sufficient
clarification of Rodriguez’s condition, order a consultative
examination, R&R I, docket entry # 8, Exhibit 10 at 17;
(w)

Rodriguez’s second objection essentially asks us

to impermissibly second-guess the weight given to different
medical sources before the ALJ;
(x)

The ALJ, as the finder of fact, noted the social-

worker’s conclusions but gave “significant weight” not only to
the state agency psychologist but to the medical records
obtained by subpoena, see docket entry # 8, Exhibit 9 at 37, as
he is empowered to do, and we are bound by those findings
because the evidence in the record is substantial, Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999);
(y)

Rodriguez’s third objection is almost

unanswerable: Because her memory of her own treatment is
unreliable, she asks the Court to engage in a full-scale fishing
expedition, a step we will not take when the ALJ’s subpoena
already produced several years of pertinent medical records;
(z)

In objecting, fourth, to the ALJ’s weighting of

the record, Rodriguez again asks us impermissibly make our own
assessment about the factual record assessment, but
contradictory evidence in the record is not cause for reversing

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the ALJ’s decision if substantial support exists for the
decision within the record, Sykes, 228 F.3d at 262;
(aa) Even if we would have decided the case
differently, we may not re-weigh the evidence but must affirm
the ALJ's credibility determinations if substantial evidence
supports them, Monsour Med. Ctr. V. Heckler, 806 F.2d 1185,
1190-91 (3d Cir. 1986);
(bb) Again, because ALJ subpoenaed records of
Rodriguez’s December 2006 treatment-center visit and her
subsequent mental-health treatment records in 2008 and 2010, on
which he relied, docket entry # 8, Exhibit 9, and the scope of
our review is limited to determining whether substantial
evidence exists in the record to support the ALJ’s decision,
Schaudeck v. Comm’r of Social Security, 181 F.3d 429, 431 (3d
Cir. 1999), we agree with Judge Sitarski that the ALJ’s decision
was supported by substantial evidence; and
(cc) Finally, with respect to Rodriguez’s fifth
objection: an ALJ may consider any other information along with
the claimant's own statements, the medical evidence, the
claimant's medical treatment history, and findings by state
agency or other program physicians, 20 C.F.R. §404.1529(c)--but
the ALJ is empowered to evaluate a claimant's credibility, see

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Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and we
may not second-guess that finding;
It is hereby ORDERED that:
1.

Rodriguez’s objections (docket entry # 19) are

OVERRULED;
2.

Judge Sitarsky’s June 14, 2013 report and

recommendation (docket entry # 18) is APPROVED and ADOPTED; and
3.

The Clerk of Court shall CLOSE this case

statistically.

BY THE COURT:

/s/ Stewart Dalzell, J.

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