CAIN v. ASTRUE

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE CARACAPPA, AND THAT THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY IS AFFIRMED. IT IS FURTHER ORDERED THAT PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CARACAPPA ARE OVERRULED. IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT CAROLYN W. COLVIN AND AGAINST PLAINTIFF BETH ANN CAIN. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS CIVIL ACTION FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/16/14. 9/17/14 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BETH ANN CAIN,
Plaintiff
v.
CAROLYN W. COLVIN 1,
Commissioner of Social Security,
Defendant

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Civil Action
No. 12-cv-06090

O R D E R
NOW, this 16th day of September, 2014, upon
consideration of the following documents:
1)

Plaintiff’s Brief and Statement of Issues in
Support of Her Request for Review, which brief
was filed April 10, 2013;

2)

Defendant’s Response to Request for Review of
Plaintiff, which response was filed May 10, 2013;

3)

Report and Recommendation of United States
Magistrate Judge Linda K. Caracappa dated
April 22, 2014 and filed April 24, 2014;

4)

Plaintiff’s Objections to the Report and
Recommendation of the Magistrate Judge, which
objections were filed April 25, 2014;

5)

Defendant’s Response to Plaintiff’s Objections to
the Magistrate Judge’s Report and Recommendation,
which response was filed May 13, 2014;

6)

plaintiff’s Civil Complaint filed October 25,
2012; and

1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure, Carolyn W. Colvin should be substituted for previous
Commissioner Michael J. Astrue as defendant in this suit. No further action
need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g).

7)

defendant’s Answer filed January 25, 2013;

and after a thorough de novo review of the record in this
matter; it appearing that Magistrate Judge Caracappa’s Report
and Recommendation correctly determined the legal issues
presented in this case,
IT IS ORDERED that Magistrate Judge Caracappa’s Report
and Recommendation is approved and adopted. 2
IT IS FURTHER ORDERED that the decision of the
Commissioner of Social Security is affirmed.

2

The extent of review of a Magistrate Judge’s Report and
Recommendation is committed to the discretion of the district court.
Jozefick v. Shalala, 854 F.Supp. 342, 347 (M.D.Pa. 1994). However, the
district court must review de novo those portions of the Report and
Recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(c). The
court may “accept, reject, or modify, in whole or in part, the magistrate’s
findings or recommendations.” Brophy v. Halter, 153 F.Supp.2d 667, 669
(E.D.Pa. 2001)(Padova, J.); Rule 72.1(IV)(b) of the Rules of Civil Procedure
for the United States District Court for the Eastern District of
Pennsylvania.
Furthermore, district judges have wide latitude regarding how
they treat recommendations of the magistrate judge. See United States v.
Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Indeed, by
providing for a de novo determination, rather than a de novo hearing,
Congress intended to permit a district judge, in the exercise of the court’s
sound discretion, the option of placing whatever reliance the court chooses
to place on the magistrate judge’s proposed findings and conclusions. I may
accept, reject, or modify, in whole or in part, any of the findings or
recommendations made by the magistrate judge. Id.
As more fully discussed below, I approve and adopt Magistrate
Judge Caracappa’s Report and Recommendation and overrule plaintiff’s
objections to the Report and Recommendation.

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IT IS FURTHER ORDERED that plaintiff’s objections to
the Report and Recommendation of Magistrate Judge Caracappa are
overruled. 3

3

Plaintiff raises two objections to Magistrate Judge Caracappa’s
Report and Recommendation (“R&R”). First, she objects that the
Administrative Law Judge (“ALJ”), Paula Garrety, should not have relied on
the testimony of Victor Alberigi, a vocational expert who identified various
jobs plaintiff could fill, but stated he did not know how close plaintiff
would be to a bathroom in such jobs. Plaintiff contends that in conducting
this analysis, the vocational expert failed to take into account her
limitation requiring her to work in close proximity to the bathroom, and that
Judge Garrety therefore failed to find jobs in the economy that accommodate
all of plaintiff’s limitations.
On June 27, 2008, Judge Garrety issued a partially favorable
decision to plaintiff, determining that plaintiff was disabled from
August 30, 2006 through May 2, 2008, but that she had improved subsequently.
Plaintiff requested review by the Social Security Administration’s Appeals
Council, which vacated Judge Garrety’s decision with regard to plaintiff’s
improvement, and remanded on the basis of several errors, including a failure
to provide a “function-by-function assessment of claimant’s ability to do
work-related physical and mental activities.” (Administrative Record at 14).
A second hearing was held before Judge Garrety, who determined that plaintiff
was disabled from August 30, 2006 to February 19, 2009. It is this decision
which plaintiff now appeals.
The vocational expert’s statement during the second hearing that
it was impossible to know how close plaintiff would be to a bathroom in each
of the jobs specified did not mean he was wavering on whether jobs existed
that would accommodate plaintiff’s limitations, but rather that he was simply
considering jobs in proximity to a bathroom as equivalent to indoor jobs in
order to simplify his analysis. Nothing on the record suggests that this
simplification fails to comply with the Appeals Council’s instructions on
remand.
The Appeals Council interpreted the requirement that plaintiff
work in close proximity to a bathroom as requiring her to have more frequent
or longer bathroom breaks, not as requiring her to work a specific distance
from a bathroom. On remand, the vocational expert complied with the Appeals
Council’s instruction for a more specific statement of these requirements,
stating that plaintiff would need no more frequent or longer bathroom breaks
than normal.
Courts in this circuit have widely accepted analyses by
vocational experts which equate jobs in proximity to a bathroom to indoor
jobs and have not required any more specificity of how close claimant would
be to the bathroom. See Scandone v. Barnhart, 2003 WL 22797732 at *3
(E.D.Pa. 2003) (Brody, J.) concluding that the hypothetical requirement of
“proximity to bathroom facilities” posed to a vocational expert was not too
(Footnote 3 continued):

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(Continuation of footnote 3):
vague; Johnson v. Colvin, 2014 WL 789084 at *6 (W.D.Pa.
the vocational expert found available jobs with “access
v. Astrue, 2009 WL 2883039at *3 (W.D.Pa. Sept. 4, 2009)
conducted by the vocational expert included “relatively
restroom facilities”.

Feb. 26, 2014) where
to a bathroom”; Hill
where the analysis
close proximity to

Furthermore, a plaintiff seeking a determination of disability
bears the burden of proving his or her limitations with evidence. See Burns
v. Barnhart, 312 F.3d 113, 119-120 (3d Cir. 2002) which found that
substantial evidence supported the denial of benefits when “claimant did not
point to relevant medical opinion indicating that his pain and exertional
limitations were more severe than the ALJ found them to be.” Plaintiff has
not shown any evidence to suggest that working indoors would be inadequate to
accommodate her limitations and that she must be within a more specific
distance of bathroom facilities.
Accordingly, I conclude that Judge Garrety did not err in relying
upon the testimony of the vocational expert, and I overrule plaintiff’s first
objection to the R&R.
Plaintiff’s second objection contends that Magistrate Judge
Caracappa erred in finding that Judge Garrety correctly determined that
plaintiff’s condition had improved as of February 19, 2009, after which date
she was not properly considered disabled. Plaintiff specifically contends
that Judge Garrety incorrectly summarized the treatment records from
plaintiff’s sessions with her psychiatrist, Dr. Randi L. Mittleman, M.D.;
improperly rejected Dr. Mittleman’s evaluation; and failed to discuss the
weight given to the report of plaintiff’s primary care physician, Dr. Jeffrey
A. Langbein, D.O.
When reviewing a Social Security determination, a district court
must determine whether the ALJ’s factual findings were supported by
substantial evidence in the record, which is “more than a mere scintilla”,
but rather evidence a reasonable mind might consider adequate to support the
ALJ’s conclusion. Chandler v. Commissioner of Social Security, 667 F.3d 356,
359 (3d Cir. 2011)(citing 42 U.S.C. § 405(g); Reefer v. Barnhart,
326 F.3d 376, 379 (3d Cir. 2003)). In doing so, the district court is not
permitted to re-weigh the evidence or make its own factual determinations.
Chandler, 667 F.3d at 359.
Furthermore, “a single piece of evidence” will not satisfy the
substantial evidence standard if the ALJ fails to resolve conflicts with
opposing evidence. Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
ALJs generally should give great weight to a report from a claimant’s
treating physician, and may only reject a physician’s report on the basis of
contradictory medical evidence, not because of the ALJ’s own “credibility
judgments, speculation or lay opinion.” Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000).
Some of the ALJ’s reasoning is unpersuasive. For example, (1) I
reject the inference drawn by the ALJ that because plaintiff’s rheumatologist
recommended that plaintiff exercise five times a week, that therefore
(Footnote 3 continued):

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IT IS FURTHER ORDERED that judgment is entered in
favor of defendant Carolyn W. Colvin and against plaintiff Beth
Ann Cain.
IT IS FURTHER ORDERED that the Clerk of Court shall
close this civil action for statistical purposes.

BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

(Continuation of footnote 3):
plaintiff is physically capable of working a full time job because the
exercise recommendation is equally consistent with the physical inability to
work full time; (2) I reject the ALJ’s rejection of some of the conclusions
in Dr. Mittleman’s report based upon the ALJ’s conclusion that the Mittleman
conclusions conflict with plaintiff’s GAF score of 60, because the ALJ does
not explain how the GAF score is inconsistent with the Mittleman conclusions;
and (3) it is unclear both what weight the ALJ gave Dr. Mittleman’s report
and whether the ALJ rejected the Mittleman report altogether or partially.
Nevertheless, for the following reasons, I find that Magistrate
Judge Caracappa correctly determined that substantial evidence supported the
ALJ’s determination that plaintiff was not disabled as of February 19, 2009.
I conclude that substantial evidence existed to support the
conclusion that plaintiff’s condition had improved. The ALJ reviewed
plaintiff’s medical records and the treatment reports from Dr. Mittleman and
concluded that they showed both physical and psychological improvement in
plaintiff’s condition. These objective medical findings can reasonably be
interpreted to contradict the findings in the reports of both physicians,
particularly in light of the fact that both Dr. Langbein and Dr. Mittleman
present their findings through “check-box” forms, which are “weak evidence at
best.” Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993).
Thus, based on the objective evidence, the ALJ could reasonably
have decided as she did, and I am not free to reweigh the evidence. I find
the Report and Recommendation to be correct factually and legally.
Accordingly, I overrule plaintiff’s second objection and approve and adopt
Magistrate Judge Caracappa’s Report and Recommendation.

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