MCBETH v. ASTRUE

Filing 19

ORDER THAT THE PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT /REQUEST FOR REVIEW IS DENIED. THE DECISION OF THE COMMISSI ONER WHICH DENIED DISABILITY INSURANCE BENEFITS TO PLAINTIFF IS AFFIRMED, AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE PAUL S. DIAMOND ON 11/18/2013. 11/18/2013 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WAYNE PATRICK MCBETH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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Civ. No. 12-3583

ORDER
Plaintiff Wayne Patrick McBeth seeks review of the Social Security Commissioner’s
denial of his claim for disability insurance benefits. (Doc. No. 5.) I referred the matter to the
Magistrate Judge for a Report and Recommendation. (Doc. No. 9.) For the following reasons, I
will overrule Plaintiff’s counseled Objections to the Report and Recommendation and enter
judgment for the Commissioner.
I.

BACKGROUND

On May 4, 2009, Plaintiff applied for benefits, alleging that he has been disabled since
September 24, 2004. (R. at 17.) The Social Security Administration denied the application on
July 31, 2009 and the Administrative Law Judge held a hearing, at Plaintiff’s request, on May
20, 2010. (R. at 32.) Plaintiff—represented by counsel—testified at the hearing, as did a
vocational expert. (R. at 17, 32.)
The ALJ found that Plaintiff has the following impairments: disorders of the back;
osteoarthritis; hip bursitis; affective disorder; and anxiety disorder. (R. at 19.) The ALJ also
found that Plaintiff has the “residual functional capacity to perform light work”: he is able to
lift/carry up to 20 pounds occasionally and 10 pounds frequently; stand and walk for 6 hours in

an 8 hour workday; and sit for 6 hours in an 8 hour workday, with occasional climbing,
balancing, stooping, kneeling, crouching and crawling. (R. at 21.) In addition, the ALJ found
that the Plaintiff “requires a sit/stand option every 60 minutes and would be limited to unskilled
work with routine and repetitive tasks and no more than occasional interaction with the public,
co-workers, or supervisors.” (R. at 21.) Finally, the ALJ found that a significant number of light
and sedentary work positions for which Plaintiff is qualified are available in the national and
local economies. (R. at 25.) On June 18, 2010, the ALJ concluded that Plaintiff was not disabled
between that date and September 24, 2004. (R. at 26.)
The Appeals Council affirmed on May 11, 2012. (R. at 1-3.) On June 25, 2012,
Petitioner filed this action challenging the Commissioner’s decision. (Doc. No. 1.) On May 13,
2013, the Magistrate Judge issued a Report and Recommendation. (Doc. No. 15.) Plaintiff
timely objected, and the Commissioner responded. (Doc. Nos. 16 & 18.) (According to his
counsel, Plaintiff was subsequently found disabled at the initial level as of June 2010.

(Doc.

No. 14.))
II.

LEGAL STANDARD

I must review de novo each issue addressed by the Magistrate Judge to which Plaintiff
has raised a timely and specific objection. 28 U.S.C. § 636(b)(1) (2002); see also Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). I may “accept, reject, or modify, in whole or in part,
the [Magistrate Judge’s] findings and recommendations.” 28 U.S.C. § 636(b)(1). It is also
within my discretion to rely on the Magistrate Judge’s proposed findings and recommendations.
United States v. Raddatz, 447 U.S. 667, 676 (1980).
For each issue to which Plaintiff objected, I must determine whether “substantial
evidence” supports the ALJ’s decision. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d

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Cir. 1986). “Substantial evidence ‘does not mean a large or considerable amount of evidence,
but rather such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.
Underwood, 487 U.S. 552, 564–65 (1988)). If substantial evidence supports the ALJ’s decision,
I must uphold it even if I would have made different factual findings. Hartranft, 181 F.3d at 360.
In evaluating a claimant’s credibility, the ALJ is required to indicate the testimony she
rejected and the basis of her findings. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d
Cir. 1999). When discrediting a claimant, the ALJ may rely on, inter alia, discrepant medical
evidence and the claimant’s inconsistent statements. See 20 C.F.R. § 404.1529 (2011);
Chandler v. Comm’r of Soc. Sec. Admin., 667 F.3d 356, 363 (3d Cir. 2011) (“Although ‘any
statements of the individual concerning his or her symptoms must be carefully considered,’ the
ALJ is not required to credit them.”) (quoting SSR 96-7p, 1996 WL 374186, at *3 (July 2,
1996)).
III.

DISCUSSION
A.

Assessment of Plaintiff’s Credibility

Plaintiff objects to the Magistrate Judge finding that the ALJ’s assessment of Plaintiff’s
credibility was supported by substantial evidence.

Plaintiff does not so much contest the

evidence that the ALJ considered, as protest the ALJ’s decision to discredit contrary evidence.
To be sure, an ALJ “must consider all relevant evidence when determining an individual's
residual functional capacity.” Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). But there
is “no authority for the proposition that an ALJ must cite all evidence a claimant presents.”
Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008).
Here, the ALJ acknowledged Plaintiff’s reports of back and hip pain, bouts of despair,
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and difficulties interacting with others. (R. at 22.) The ALJ went on to find that Plaintiff’s
medically determinable impairments could reasonably be expected to cause these symptoms. Id.
The ALJ also found, however, that Plaintiff’s statements about the intensity, persistence, and
limiting effects of his disability were not credible.

Id.

In support, the ALJ cited the

inconsistency of Plaintiff’s statements with his residual functioning capacity, which she
determined by considering the factors listed in 20 CFR 404.1529(c) and 416.929(c). The ALJ
found that Plaintiff had a conservative treatment history (e.g. acupuncture rather than surgery),
had responded to conservative treatment measures (e.g. ice), and had not taken pain medication
since Fall 2008. (R. at 23-24.) In addition, the ALJ found that Plaintiff cooks, does laundry,
walks his dog, drives, and mows the lawn. (R. at 22.)
Because the ALJ’s findings concerning Plaintiff’s residual functional capacity, and
concomitant discrediting of some of Plaintiff’s subjective statements, were both “accompanied
by a clear and satisfactory explication of [their] basis,” I will overrule Plaintiff’s objection.
Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981)).
B.

Inappropriate Medical Analysis

In reviewing Plaintiff’s treatment history, the ALJ noted that a 2005 examination showed
“positive Waddell’s signs.” As the Magistrate Judge has explained:
Waddell’s signs are special maneuvers used to evaluate persons when exam
findings are inconsistent. A positive Waddell’s sign generally indicates a nonphysiological etiology of pain.
(Doc. No. 15 at 11 (citing Destefano v. Astrue, Civ. No. 07-3750, 2009 WL 113744, at *6 n.20
(E.D. Pa. Jan. 14, 2009)).)

Plaintiff maintains that because the ALJ did not mention the

significance of the Waddell’s signs, she engaged in “inappropriate medical analysis.” Rodriguez
v. Astrue, Civ. No. 10-02524, 2011 U.S. Dist. LEXIS 145571, at *22 n.20 (M.D. Pa. Dec. 19,

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2011). I do not agree.
In Rodriguez, the ALJ stated that positive Waddell’s signs "clearly establish that the
claimant repeatedly overstates his symptoms.” Id. The District Court rejected this conclusion as
unsupported by medical testimony and as contrary to Dr. Waddell’s views on the proper use of
his test. Id. Here, the ALJ noted Plaintiff’s positive Waddell’s signs, but did not rely on these
results to find that Plaintiff was malingering. Rather, as I have described, she discredited
Plaintiff’s testimony regarding the intensity and effect of his symptoms based on the
inconsistency of this testimony with other parts of the record. Accordingly, I will overrule
Plaintiff’s objection.
C.

Evaluation of Medical Opinions

Plaintiff objects that the Magistrate Judge should not have upheld the ALJ’s evaluation of
Plaintiff’s medical experts. Plaintiff argues that the ALJ gave insufficient weight to the residual
functional capacity assessments made by Plaintiff’s primary care physician, Dr. Leroy Fleisher,
and his rheumatologist, Dr. Thomas Whalen, and too much weight to the assessment of the state
agency physician, Dr. Carla Huitt. The ALJ must evaluate all medical opinions, giving them
weight according to their support and consistency with the record as a whole. Salles v. Comm’r
of Soc. Sec., 229 Fed. Appx. 140, 148 (3d Cir. 2007). The ALJ is then free to credit some
opinions and discredit others, as long as she provides a rationale for doing so. Diaz v. Comm’r
of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009). Opinions of a treating physician are entitled to
controlling weight only when they are well-supported and not inconsistent with other substantial
evidence in the record. See Hall v. Comm'r of Soc. Sec., 218 F. App'x 212, 215 (3d Cir. 2007)
(affirming ALJ’s decision to give little weight to treating physician’s reports because of “internal
inconsistencies in various reports and treatment notes . . . as well as other contradictory medical

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evidence”); Fargnoli, 247 F.3d at 43.
Here, the ALJ rejected the suggestion—made by Drs. Fleisher and Whalen—that Plaintiff
could not sit or stand for more than two hours a day. (R. at 23.) The ALJ cited both the progress
notes made by these doctors, as well as the record as a whole. Both doctors found that Plaintiff
had a diminished range of motion and that his pain was almost always severe enough to interfere
with his concentration. (R. at 320, 321, 372.) But both doctors’ notes, however, indicate that
Plaintiff had experienced some reduction in pain on several visits. (R. at 240, 245, 367, 371.)
Additionally, the record shows that Plaintiff undertook only conservative treatment for his
allegedly severe back pain, and continued to engage in the various activities of daily living I
have described. (R. at 45, 154-57, 178-79, 256, 361-66.) Substantial evidence in the record also
shows that Plaintiff’s range of motion was normal. (R. at 191, 199, 200, 213-15, 252, 258.) In
light of this contrary evidence, the ALJ permissibly gave little weight to the assessments of Drs.
Fleisher and Whalen. Because Dr. Huitt’s assessment was consistent with the rest of the medical
record, however, the ALJ properly gave it significant weight. The ALJ permissibly modified Dr.
Huitt’s assessment by including additional limitations, based on evidence presented at the
hearing, to account for further restrictions in Plaintiff’s exertional abilities and the need for a
sit/stand option. (R. at 23.) Accordingly, I will overrule Plaintiff’s objection.
Plaintiff also argues that the ALJ improperly credited the psychological examination of
the state agency consultant, Dr. Joseph Puleo, even though he did not take into account the
treatment records of Plaintiff’s therapist, Mr. Nathaniel Prentice. Dr. Puleo found that neither
Plaintiff’s physical pain nor his psychological disorders prevented him from concentrating and
working with others. (R. at 291, 293-94.) Mr. Prentice, in contrast, found that Plaintiff’s GAF
score was 50, that his back pain would prevent him from working, and that his depression would

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isolate him. (R. at 357-59.)
The ALJ gave Mr. Prentice’s assessment little weight because he is not a doctor, and
because his assessment was not supported by his own case notes. (R. at 24.) As both the ALJ
and the Magistrate Judge noted, Mr. Prentice, a licensed clinical social worker, is not an
“acceptable medical source,” and so his opinion cannot be used to establish the existence of a
medically determinable impairment.

SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).

Moreover, Mr. Prentice’s assessment of the severity of Plaintiff’s impairments was undermined
by numerous notations in his progress notes—referred to by the ALJ and highlighted by the
Magistrate Judge—demonstrating Plaintiff’s improved mental condition and social interactions.
(R. 324-356.) In contrast, Dr. Puleo is a state agency consultant who found—consistent with the
treatment evidence—that Plaintiff suffered from no more than “slight limitations.” (R. at 24.)
The ALJ thus permissibly gave greater weight to Dr. Puleo’s findings than to Mr. Prentice’s
opinion.

See 20 C.F.R. § 404.1527(e)(2)(i) (“[S]tate agency medical and psychological

consultants are highly qualified . . . experts in Social Security disability evaluation.”); Poulos v.
Comm’r of Soc. Sec., 474 F.3d 88, 93 (3d. Cir. 2007) (ALJ properly relied on a state agency
psychologist to evaluate a claimant’s mental impairment, even though a consulting psychologist
offered a different opinion). Accordingly, I will overrule Plaintiff’s objection.
D.

Chenery Violation

In evaluating and affirming the ALJ’s decision to discredit Dr. Fleischer, the Magistrate
Judge referred to contrary findings made by specialists to whom Dr. Fleisher had referred
Plaintiff, including a report from the Crozer Interventional Pain Management Center and an
evaluation by Dr. Michael Stanley. (Doc. No. 15 at 15; R. at 253-54.) Plaintiff alleges that this
was improper because these records were not explicitly cited by the ALJ. See SEC v. Chenery

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Corp., 318 U.S. 80 (1943); see also Fargnoli, 247 F.3d at 44 n.7 (District Court violated Chenery
doctrine when it relied on medical records not mentioned by the ALJ but found “in its own
independent analysis”). But see Correa v. Astrue, Civ. No. 07-5435, 2009 WL 585500 (E.D. Pa.
Mar. 4, 2009) (“When determining whether the ALJ's decision is supported by substantial
evidence, the court may look to any evidence in the record, regardless of whether the ALJ cites
to it in his decision.”) (citing Hook v. Bowen, 677 F. Supp. 305, 306 (M.D. Pa. 1988); Esposito
v. Apfel, Civ. No. 99-771, 2000 WL 218119, at *6 (E.D. Pa. Feb. 24, 2000)). Again, I do not
agree.
First, the ALJ, in fact, cited some of this evidence—the progress notes of Mr. Prentice.
(R. at 24.) As for the evidence not explicitly cited by the ALJ—the notations of Dr. Stanley and
the evaluation by Crozer Interventional Pain Management—there was ample other evidence in
the record, as described above, that undermined Dr. Fleisher’s assessment—including his own
progress notes, which the ALJ explicitly cited. The ALJ’s decision to discredit Dr. Fleisher is
thus supported by substantial evidence and “capable of providing meaningful judicial review.”
Cosby v. Comm'r of Soc. Sec., 231 F. App'x 140, 146 (3d Cir. 2007). Accordingly, I will
overrule Plaintiff’s objection.
E.

Hypothetical for Vocational Expert

Finally, Plaintiff objects to the Magistrate’s approval of the ALJ’s use of a hypothetical
question restricting Plaintiff to “unskilled work, with routine repetitive tasks.” Plaintiff argues
that the hypothetical did not properly take into account Plaintiff’s moderate limitations in
concentration, persistence, and pace. (R. at 53-54.) Plaintiff offers two inapposite cases in
support of his position. Kaumans v. Astrue, Civ. No. 11-01404, 2012 U.S. Dist. LEXIS 164651,
at *40 (M.D. Pa. Nov. 19, 2012); Weinsteiger v. Astrue, Civ. No. 9-1769, 2010 U.S. Dist.

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LEXIS 5971, at *32 (E.D. Pa. Jan. 5, 2010). Third Circuit precedent, however, suggests that the
hypothetical was proper.
An ALJ’s hypothetical question to a vocational expert “must reflect all of a claimant’s
impairments that are supported by the record.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d
Cir. 1987). The Third Circuit has thus held a hypothetical involving only a restriction to simple,
repetitive tasks to be insufficient where a claimant “often” had deficiencies in concentration,
persistence, or pace that limited her ability to perform. Ramirez v. Barnhart, 372 F.3d 546, 55455 (3d Cir. 2004). The Ramirez Court noted, however, that such a hypothetical could be justified
where the ALJ has concluded that the deficiencies were “minimal or negligible.” Id. at 555; see
also McDonald v. Astrue, 293 Fed. App’x. 941, 946 (3d Cir. 2008) (hypothetical limiting
plaintiff to “simple, routine tasks” was “adequate” in accounting for his moderate limitations in
concentration, persistence, and pace); Menkes v. Astrue, 262 Fed. App’x. 410, 412 (3d Cir.
2008) (“[T]he ALJ accounted for these [moderate] mental limitations in the hypothetical
question by restricting the type of work to ‘simple routine tasks.’”).
Here, the ALJ found that Plaintiff had only moderate difficulties with regard to
concentration, persistence, or pace. (R. at 21.) The ALJ also gave great weight to Dr. Puleo’s
assessment that Plaintiff’s physical discomfort did not adversely affect his ability to concentrate
or focus.

(R. at 24.)

Moreover, the ALJ explicitly found that unskilled work would be

compatible with Plaintiff’s mental impairments. (R. at 24.) The hypothetical thus properly
reflected Plaintiff’s impairments as evidenced by the record and determined by the ALJ.
Accordingly, I will overrule Plaintiff’s objection.

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IV.

CONCLUSION

Substantial evidence supports the ALJ’s decision.

Hartranft, 181 F.3d at 360.

Accordingly, I will overrule Plaintiff’s Objections and adopt the Report and Recommendation
upholding the ALJ’s denial of Plaintiff’s claim for disability insurance benefits.
AND NOW, this 18th day of November, 2013, upon consideration of Plaintiff’s Request
for Review, Defendant’s Response, Plaintiff’s Reply, the Report and Recommendation of the
Magistrate Judge, Plaintiff’s Objections to the Report and Recommendation, and Defendant’s
Response, it is hereby ORDERED as follows:
1. Plaintiff’s objections to the Report and Recommendation (Doc. No. 16) are
OVERRULED;
2. The Report and Recommendation (Doc. No. 15) is APPROVED and
ADOPTED;
3. Plaintiff’s Motion for Summary Judgment/Request for Review (Doc. No. 6) is
DENIED;
4. The decision of the Commissioner which denied disability insurance benefits to
Plaintiff is AFFIRMED; and
5. The Clerk of Court shall mark this case CLOSED for statistical purposes.
AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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