BENDER v. ASTRUE

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS. THE DECISION OF THE COMMISSIONER IS AFFIRMED AND PLAINTIFF'S REQUEST FOR REVIEW IS DENIED. THE CLERK OF COURT SHALL CLOSE THIS CASE FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 5/16/2013. 5/17/2013 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VICTORIA BENDER
v.
CAROLYN W. COLVIN
Commissioner of Social Security

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CIVIL ACTION

NO. 12-cv-2509

ORDER
AND NOW, this 16th day of May 2013, upon careful and independent consideration of
the administrative record, the brief in support of review filed by Plaintiff, Defendant’s response
thereto, and Plaintiff’s reply thereto (Doc. Nos. 9, 10, & 12), and after review of the Report and
Recommendation of United States Magistrate Judge David R. Strawbridge, Plaintiff’s objections
thereto, and Defendant’s response to Plaintiff’s objections (Doc. Nos. 13, 14, & 15), it is hereby
ORDERED that:
1.

The Report and Recommendation is APPROVED and ADOPTED.

2.

The decision of the Commissioner is AFFIRMED and Plaintiff’s Request for
Review is DENIED.

3.

A.

The Clerk of Court shall close this case for statistical purposes.

The Chenery Rule
We briefly comment on Plaintiff’s claim that the R&R’s discussion of two medical

reports, which are contained in the record, but not specifically referenced in the ALJ’s decision,
runs counter to the so-called Chenery rule. The Supreme Court in SEC v. Chenery Corporation,
articulated the now well-settled principle that “[t]he grounds upon which an administrative order

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must be judged are those upon which the record discloses that its action was based.” 318 U.S.
80, 87 (1943). In other words, the reviewing court must consider only the rationale articulated by
the agency in its decision. If that rationale is not adequate or proper to support the decision, the
reviewing court should not substitute its own analysis. Rather, the court must reverse and
remand for the agency to reconsider the rationale for its decision. See id.; see also Mayo v.
Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990).
In his decision, the ALJ indicated that the rationale supporting his assessment of
Plaintiff’s physical functional capacity (i.e., sedentary) stemmed from an analysis of the
consistency of the evidence of record. (See Record, at 18). Despite Plaintiff’s contention to the
contrary, the Magistrate Judge did not did not set forth a differing rationale to support the ALJ’s
decision. On the contrary, the Magistrate Judge agrees that based on the consistency of evidence
in the record, there is no support for a finding that Plaintiff lacks the physical capacity to perform
sedentary work. The Magistrate Judge’s brief discussion of two medical reports not specifically
referenced in the ALJ’s opinion may help provide clarity to that rationale, but it certainly does
not substitute or counter it. For that reason, we find Plaintiff’s reliance on the Chenery rule here
misplaced.
B.

ALJ’s Rejection of Dr. Venezia’s Opinion
Plaintiff also claims that the ALJ rejected the opinion of her treating physician, Dr.

Venezia, without properly relying on conflicting medical evidence. The Third Circuit held in
Morales v. Apfel, that the ALJ “may reject a treating physician’s opinion outright only on the
basis of contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.” 225 F.3d 310, 317 (3d Cir. 2000) (internal quotation marks
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omitted).
In Morales, the Third Circuit found that the ALJ’s refusal to credit the opinion of the
treating physician was not based on objective medical evidence, but simply because he did not
believe the plaintiff’s testimony at the hearing and because other non-treating physicians noted
that the plaintiff appeared to be “malingering” in his examinations. Id. at 318. Here, however,
the ALJ’s decision to give little probative weight to Dr. Venezia’s medical opinion was not based
on speculative inferences or lay judgment. On the contrary, the credibility determination derived
from the inconsistency of the opinion compared with the other substantial medical evidence in
the record. As the Magistrate Judge articulated, not only can the ALJ evaluate the consistency of
a medical opinion with the record when determining its credibility - it must evaluate the
consistency. (See Doc. No. 13, at 23) (referencing 20 C.F.R. § 416.927(c)(4)).
Moreover, despite Plaintiff’s contention, the holding in Morales does not require the ALJ
to specifically reference a conflicting medical opinion in order to reject the credibility of
Plaintiff’s treating physician. Morales simply requires that the credibility decision be supported
by “objective medical evidence”; it does not require the ALJ to directly contrast a conflicting
medical opinion. 225 F.3d at 317 (emphasis added). Here, the objective medical evidence
showed that Dr. Venezia conservatively treated Plaintiff, documented that her mood was
euthmytic instead of anxious, and his notes lacked mention of ongonig panic attacks. Based
upon the inconsistency between Dr. Venezia’s opinion and the aforementioned medical evidence,
the ALJ’s decision to reject the credibility of Dr. Venezia’s medical opinion was appropriate.
BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J
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