MINNICK v. ASTRUE

Filing 15

ORDER THAT PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PLAINTIFF'S REQUEST FOR REVIEW OF THE DECISION OF THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION IS GRANTED IN PART AND DENIED IN PART. THIS MATTER IS REMANDED TO THE COMMISSIONER FOR FURTHER PROCEEDINGS.(Main Document 15 replaced on 2/20/2014) (dp, ). Modified on 2/20/2014 (dp, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANCIS MINNICK
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security

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CIVIL ACTION

NO. 12-4471

ORDER-MEMORANDUM
AND NOW, this 19th day of February, 2014, upon consideration of Plaintiff=s Complaint
requesting review of the decision of the Commissioner of the Social Security Administration
(Docket No. 1), all documents filed in connection therewith, the Report and Recommendation of
United States Magistrate Judge Henry S. Perkin (Docket No. 12), and Plaintiff=s Objections
thereto, IT IS HEREBY ORDERED as follows:
1.

Plaintiff’s Objections to the Report and Recommendation are OVERRULED;

2.

The Report and Recommendation is APPROVED and ADOPTED;

3.

Plaintiff’s Request for Review of the decision of the Commissioner of the Social
Security Administration is GRANTED IN PART AND DENIED IN PART; and

4.

This matter is REMANDED to the Commissioner, pursuant to sentence four of 42
U.S.C. § 405(g), for further proceedings consistent with the Report and
Recommendation of United States Magistrate Judge Henry S. Perkin.
On November 10, 2010, the Administrative Law Judge (“ALJ”) denied Plaintiff’s request

for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401434.

(R. 22-35.)

The ALJ found that Plaintiff has not engaged in substantial gainful

employment since November 13, 2007, the alleged onset date of his disability. (R. 26.) The ALJ
further found that Plaintiff has the following severe impairments: “hepatitis infection, obesity,

syncope, and tendinopathy of the right arm.” (R. 28.) However, the ALJ also found that
Plaintiff has the residual functional capacity (“RFC”) to perform “light work that does not
involve extending [sic] reaching with the right, dominant arm and precluding exposure to heights
and hazards such as moving machinery.” (R. 32.) The ALJ recommended that Plaintiff engage
only in light work because of his “hepatitis infection, possibly aggravated by obesity, that has
caused some fatigue,” and recommended that any work involve limited reaching with the right
arm because of Plaintiff’s tendinopathy, and no exposure to hazards because of Plaintiff’s
syncope. (Id.) The ALJ concluded that, in spite of these limitations, Plaintiff is not disabled
because he can engage in occupations such as production inspector and usher, which exist in
significant numbers in the regional and national economies. (R. 33-34.)
In his decision, the ALJ acknowledged that two of Plaintiff’s treating physicians, Dr.
Mitchell Conn and Dr. Kevin Melnick, and a state agency physician, Dr. George Weiss, have all
opined that Plaintiff cannot work or is disabled due to fatigue and arthralgias. (R. 31-32.) The
ALJ also acknowledged that Plaintiff testified during a September 15, 2010 hearing that he feels
constant fatigue. (R. 30.) However, the ALJ did not rely on the physicians’ opinions because
they were not supported by Plaintiff’s medical records, and he likewise refused to credit
Plaintiff’s testimony regarding fatigue because it was inconsistent with his medical treatment
notes. (R. 30-31.)
On November 23, 2010, Plaintiff filed a Request for Review of the ALJ’s decision. (R.
17.) The Appeals Council denied the request on June 7, 2012, making the ALJ’s decision the
final decision of the Commissioner of Social Security. (R. 1.) Plaintiff filed the instant action on
August 7, 2012, raising two issues: whether the ALJ properly evaluated (1 the medical evidence
and (2) Plaintiff’s subjective complaints. (Pl.’s Br. at 1.)

2

Pursuant to Local Rule 72.1(d)(1)(C), we referred the case to Magistrate Judge Henry S.
Perkin for a Report and Recommendation. With respect to the first issue, the Magistrate Judge
recommends that there is substantial evidence in the record to support the ALJ’s decision with
respect to the medical evidence. (R&R at 14.) With respect to the second issue, the Magistrate
Judge recommends that the ALJ failed to consider the Plaintiff’s long work history in making his
overall credibility determination and further recommends that this case be remanded to the ALJ
for further consideration of Plaintiff’s credibility. (Id. at 19.) Plaintiff now objects to the
Magistrate Judge’s recommendation in connection with the first issue, reiterating his contentions
that the ALJ erred in disregarding the recommendation of Dr. Hugh Lipshutz that Plaintiff
should “avoid standing in one position for long periods of time” and the opinions of Doctors
Conn, Melnick and Weiss that Plaintiff is unable to work due to his medical conditions. (Obj. at
2-3.)
Judicial review of the Commissioner’s final decision is limited, and the ALJ’s findings of
fact will not be disturbed if they are supported by substantial evidence. Brownawell v. Comm’r
of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (citing 42 U.S.C. § 405(g)); see also 42 U.S.G. §
405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Substantial evidence is defined as “‘more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Brownawell, 554 F.3d at 355 (quoting Reefer v. Barnhart, 326 F.3d 376,
379 (3d Cir. 2003), and citing Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir.
2008)). The ALJ’s legal conclusions are subject to plenary review. Hagans v. Comm’r of Soc.
Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing Schaudeck v. Comm’r of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999)).

3

We review de novo those portions of a Magistrate Judge’s report and recommendation to
which objections are made. 28 U.S.C. § 636(b)(1). We may accept, reject, or modify, in whole
or in part, the Magistrate Judge’s findings or recommendations. Id.
As noted above, Plaintiff first objects to the Magistrate Judge’s failure to find error in the
ALJ’s disregard of Dr. Lipshutz’s recommendation that Plaintiff avoid standing for long periods
of time because of his syncope. Plaintiff saw Dr. Lipshutz, a cardiologist, for evaluation of his
syncope on two occasions, the first time in 2008 and the second time on May 28, 2010. (R. 570.)
On May 28, 2010, Dr. Lipshutz stated that, since Plaintiff’s first episode of syncope in
November 2007, Plaintiff had experienced six or seven additional episodes, several occurring
after he exited the shower.

(Id.)

Dr. Lipshutz performed tests, including a stress

echocardiogram, and determined that Plaintiff did not require medical therapy. (R. 571.) Dr.
Lipshutz subsequently stated in his report that “I cautioned the patient to avoid situations which
he knows have precipitated this in the past, such as a hot shower. He should maintain a good
state of hydration, [use] liberal amounts of salt, and avoid standing in one position for long
periods of time.” (Id.)
As a general matter, the opinions of a social security claimant’s “‘treating physician are
entitled to substantial and at times even controlling weight.’”

Johnson, 529 F.3d at 202

(alteration in original) (quoting Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001)).
“However, the treating source’s opinion is entitled to controlling weight only when it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the claimant’s] case record.” Id. (alteration in
original) (quoting Fargnoli, 247 F.3d at 43.)

Here, there are no medical findings in Dr.

Lipshutz’s report that support his statement that Plaintiff should avoid standing in the same place

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for a long period of time. (See R. 570-71.) We thus conclude that the ALJ did not err by
disregarding this recommendation, and we overrule Plaintiff’s objection to the Magistrate
Judge’s Report and Recommendation with respect to this issue.
Plaintiff also objects to the Magistrate Judge’s failure to find error in the ALJ’s rejection
of the opinions of Drs. Melnick, Conn and Weiss that Plaintiff is unable to work. The record
reflects that Dr. Melnick is Plaintiff’s treating primary care doctor. On June 18, 2010, he opined
that Plaintiff is “totally disabled due to his medical conditions including Major Depressive
Disorder, Chronic Fatigue, Chronic Hepatitis C, and Syncope.” (R. 525.) Dr. Melnick further
opined that “[t]his will not change and will only worsen in the forseeable future.” (Id.) Dr.
Conn is Plaintiff’s treating hepatologist. On June 23, 2010, he wrote that Plaintiff suffers from
chronic hepatitis C that did not respond to therapy and stated that Plaintiff has “significant
symptoms including fatigue, malaise, and arthralgias.” (R. 527.) Dr. Conn further opined that
Plaintiff “is unable to maintain active employment due to these symptoms.” (Id.) On July 27,
2008, Dr. Weiss, the state agency physician, dictated a medical report in which he stated that
Plaintiff “cannot work due to chronic liver disease due to hepatitis C.” (R. 346.)
The ALJ wrote in his decision that he did not rely on these three doctors’ opinions
because the opinions are not supported by Plaintiff’s medical treatment records. (R. 31.) The
ALJ explained that Plaintiff’s treatment notes reflect that Plaintiff is “doing well with only mild
fatigue or even no fatigue at all, and do not indicate any resulting interference with daily
functioning.” (Id. (citing R. 335-42, 471-510, 553-575).) The ALJ also noted that Plaintiff’s
recent diagnostic testing showed that his liver functions have been normal since the alleged onset
date of his disability. (Id.)

5

We have reviewed the medical evidence of record. Plaintiff’s medical treatment notes
near and after the alleged onset date of his disability (November 13, 2007), mention that Plaintiff
complained of fatigue only on March 5, June 20, and August 26, 2008, and November 9, 2009.
(R. 342, 360-62, 515.) Moreover, neither Dr. Melnick’s nor Dr. Conn’s treatment notes discuss
the extent of Plaintiff’s fatigue or how his fatigue limits his activities. (See R. 342, 360-62, 515.)
In addition, tests of Plaintiff’s liver and spleen conducted on September 27, 2007, August
18, 2009, and July 2, 2010, show no more than minor changes to Plaintiff’s liver. (R. 390, 467,
536.) Indeed, the liver tests performed on July 2, 2010 show that Plaintiff’s liver was normal.
(R. 536.) Moreover, in contrast to the doctors’ opinions regarding the impact of Plaintiff’s
athralgias, the medical tests performed on July 14, 2008, May 15, 2009, and June 11, 2009, show
that his knees were normal, that he had only mild degenerative arthritis and disc disease in his
back, and that his right elbow was normal. (R. 413, 441, 443, 506.)

Additionally, Plaintiff’s

medical records show that his episodes of syncope were infrequent and did not usually cause him
to fully pass out. (R. 424, 570.)
As noted above, Plaintiff’s treating physicians’ opinions are “entitled to controlling
weight only when [they are] ‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the
claimant’s] case record.”

Johnson, 529 F.3d at 202 (third alteration in original) (quoting

Fargnoli, 247 F.3d at 43.) We agree with the ALJ that Dr. Melnick’s, Dr. Conn’s and Dr. Weiss’s
opinions that Plaintiff cannot work as a result of his fatigue, hepatitis, syncope and arthralgias
are inconsistent with the other substantial medical evidence in the record before us.

We

conclude, therefore, that the ALJ’s decision not to rely on the opinions of Drs. Melnick, Conn
and Weiss is supported by substantial evidence of record.

6

For the above stated reasons, we overrule Plaintiff’s objection to Magistrate Judge
Perkin’s recommendations regarding the ALJ’s treatment of Dr. Lipshutz’s recommendation and
the opinions of Drs. Melnick, Conn and Weiss, and we approve and adopt the Report and
Recommendation, which also recommends entering judgment in Plaintiff’s favor and remanding
this case to the ALJ for further consideration of Plaintiff’s subjective complaints and credibility.
We will enter judgment in Plaintiff’s favor in a separate order filed contemporaneously with this
one.

BY THE COURT:
/s/ John R. Padova
_________________________
John R. Padova, J.

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