CRUMP v. COLVIN

Filing 23

MEMORANDUM AND OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/6/17. 6/7/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SAVERNA LYNETTE CRUMP,
Plaintiff,

CIVIL ACTION

v.
NANCY BERRYHILL, 1 Acting
Commissioner of Social Security
Administration,
Defendant.

NO. 15-3182

DuBois, J.

June 6, 2017
MEMORANDUM

I.

INTRODUCTION

In this action, plaintiff Saverna Lynette Crump seeks review of the final decision of
defendant, the Acting Commissioner of the Social Security Administration (the
“Commissioner”), denying her claim for Supplemental Security Income (“SSI”) under Title XVI
of the Social Security Act (“SSA”), 42 U.S.C. §§ 1381-1383f. The denial was based on a
decision by an Administrative Law Judge (“ALJ”) on February 26, 2014, that plaintiff was not
disabled under the SSA. By Order dated October 4, 2016, the Court referred the case to United
States Magistrate Judge Timothy R. Rice for a Report and Recommendation (“R & R”). On
January 18, 2017, Judge Rice issued an R & R recommending that plaintiff’s Request for
Review 2 be denied. Presently before the Court are plaintiff’s Objections to the R & R. For the

1

Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill is substituted for
Carolyn W. Colvin as defendant in this suit.
2
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review but did not file
an actual Motion or Request for Review. Plaintiff’s Brief states on the second page that she
“filed this civil action seeking judicial review pursuant to 42 U.S.C. § 405(g).” The Court thus
construes the Brief as a Request for Review.

reasons that follow, the Court approves and adopts the R & R, overrules plaintiff’s Objections,
and denies plaintiff’s Request for Review.
II.

BACKGROUND

The background of this case is set forth in detail in Magistrate Judge Rice’s R & R and
will be recited in the Memorandum only as necessary to address plaintiff’s Objections. Plaintiff
applied for SSI on October 18, 2011. Administrative R. (“R.”) at 14. After her application was
denied, plaintiff requested a hearing which was held on December 17, 2013. Id. In a decision
dated February 26, 2014, the ALJ concluded that plaintiff was not disabled under the SSA. Id.
In so concluding, the ALJ found that plaintiff suffered from three severe impairments—affective
disorder, anxiety disorder, and substance abuse disorder—but that these impairments did not
meet or equal the severity of a listed impairment. R. at 16-17. The ALJ determined that plaintiff
had the residual functional capacity (“RFC”) to perform work at all levels of physical exertion,
but was limited to “performing routine tasks, understanding and following short simple
instructions, and making simple work related decisions in an environment with few workplace
changes” and that she “must avoid interacting with the public and working co-dependently as if
on a team, and is limited to no more than occasional interaction with supervisors.” R. at 18.
Based on her determination of plaintiff’s limitations and the testimony of a vocational expert, the
ALJ found that plaintiff was capable of performing jobs that existed in significant numbers in the
national economy and was thus not disabled under the SSA. R. at 21-22.
The Appeals Council denied plaintiff’s request for review on May 5, 2015, and the ALJ’s
determination was thus affirmed as the Commissioner’s final decision. R. at 1. Plaintiff
commenced this action seeking review of the Commissioner’s final decision pursuant to 42
U.S.C. § 405(g) on June 1, 2015.

2

III.

APPLICABLE LAW

A district court evaluates de novo those portions of a magistrate judge’s report and
recommendation to which an objection is made and may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). A district court’s review of the Commissioner’s final decision is limited to
determining whether the denial of benefits “is supported by substantial evidence on the record as
a whole” and whether the correct legal standards were applied. McCrea v. Comm’r of Soc. Sec.,
370 F.3d 357, 359 (3d Cir. 2004). “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’ Although substantial
evidence is more than a mere scintilla, it need not rise to the level of a preponderance.” Id. at
359-60 (quoting Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003)).
In deciding a disability claim, “an ALJ must clearly set forth the reasons for [her]
decision. . . . The ALJ must provide a discussion of the evidence and an explanation of
reasoning for [her] conclusion to sufficiently enable meaningful judicial review.” Diaz v.
Comm’r of Soc. Sec., 577 F. 3d 500, 504 (3d Cir. 2009) (quotation marks and citations omitted).
However, the ALJ “need not employ particular magic words[,] . . . particular language[,] or
adhere to a particular format in conducting [the] analysis.” Id. (quotation marks omitted).
“When a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject
evidence for no reason or for the wrong reason.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
2000) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993).
An ALJ must “consider the medical opinions in [a] case record together with the rest of
the relevant evidence.” 20 C.F.R. § 416.927(b). Generally, the opinion of a medical source who
has evaluated the claimant is given more weight than a source who has not, 20 C.F.R.

3

§ 416.927(c)(1), and the medical opinion of a treating source 3 that “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the case record]” will be given “controlling weight.” 20 C.F.R.
§ 416.927(c)(2). However, while “treating and examining physician opinions often deserve
more weight than the opinions of doctors who review records, the law is clear that the opinion of
a treating physician does not bind the ALJ on the issue of functional capacity.” Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). When an ALJ does not give the opinion
of a treating source controlling weight, the ALJ must weigh the opinion—considering, inter alia,
the length and nature of the treating relationship, and the supportability and consistency of the
opinion—and give reasons for the weight she gives to the opinion. 20 C.F.R. § 416.927(c)(2);
see Plummer, 186 F.3d at 429 (“An ALJ may . . . afford a treating physician’s opinion more or
less weight depending upon the extent to which supporting explanations are provided.” (citation
omitted)).
IV.

DISCUSSION

Plaintiff filed four objections, three of which address the medical opinions in the record.
Plaintiff argues that Judge Rice erred in determining that the ALJ properly weighed the opinion
of (1) plaintiff’s treating psychiatrist, Dr. Girish Shah, (2) the examining psychologist, Dr.
Robert DiTomasso, who examined plaintiff on behalf of the Social Security Administration, and
(3) the reviewing psychologist, Dr. Francis Murphy, who reviewed plaintiff’s records on behalf
of the Social Security Administration. In her fourth objection, plaintiff contends that the Judge

3

A “treating source” is a medical source that has provided the claimant with “medical treatment
or evaluation and who has, or has had, an ongoing treatment relationship” with the claimant. 20
C.F.R. § 416.927(a)(2).
4

Rice erred in concluding that the ALJ properly evaluated plaintiff’s credibility with respect to her
reports regarding her symptoms. The Court addresses each of plaintiff’s objections in turn.
A.

Plaintiff’s First Objection

Plaintiff first objects to Judge Rice’s determination that the ALJ properly weighed the
opinion of plaintiff’s treating psychiatrist, Dr. Shah. Dr. Shah opined that plaintiff had marked
limitations in three areas relating to her abilities to do unskilled work: (1) maintaining regular
attendance and being punctual, (2) “[c]omplet[ing] a normal workday and work week without
interruptions from psychologically based symptoms,” and (3) “[g]et[ting] along with co-workers
or peers without unduly distracting them . . . .” R. at 547.
The ALJ gave Dr. Shah’s opinion “little weight” because she found that it was “fraught
with inconsistencies.” R. at 20. As an example of these inconsistencies, the ALJ stated that “Dr.
Shah reports overall no more than moderate functional limitations in activities of daily living,
maintaining social functioning and maintaining concentration persistence or pace, [and] no more
than moderate limitations in mental abilities and aptitudes to perform semiskilled/skilled and
other work. However, Dr. Shah reports marked findings in specific areas relating to performing
unskilled work and opines that plaintiff would decompensate with even a minimal increase in
mental demands or changes in her environment.” R. at 20. Plaintiff contends that Judge Rice
erred in concluding that this determination was supported by substantial evidence, arguing that
Judge Rice and the ALJ “found several inconsistencies where none exist,” Dr. Shah’s opinion
was consistent with itself and with the record, and Judge Rice did not address plaintiff’s
argument that the ALJ “failed to adequately evaluate a treating physician’s opinion” under 20
C.F.R. § 416.927. Objection 2-4.

5

The Court rejects these arguments. Judge Rice concluded that the determination by the
ALJ that Dr. Shah’s opinion was inconsistent was supported by substantial evidence. R & R 18.
Judge Rice stated that Dr. Shah found plaintiff “markedly limited with respect to distracting her
peers,” but only “moderately limited with respect to interacting appropriately with the general
public and maintaining socially appropriate behavior.” Id. (citing R. at 547). Dr. Shah also
found plaintiff “only moderately limited in her ability to sustain ordinary routine[s] without
supervision, and mildly limited in her ability to deal with normal work day stress, but markedly
limited in her ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms.” Id. (citing R. at 547-48). Judge Rice determined that the
treatment records cited by plaintiff, which documented plaintiff’s depressed and anxious mood,
did not support Dr. Shah’s findings with respect to plaintiff’s above described “marked”
limitations. Id. Judge Rice thus rejected plaintiff’s argument that this opinion was consistent
with the evidence, stating that even if the treatment notes “suggest that Crump would experience
and display psychologically based symptoms each workweek, there is no evidence that those
symptoms would necessitate an interruption in the limited scope of unskilled work for which
Crump was found suited.” Id.
Judge Rice further stated that the treatment records cited by plaintiff undermined Dr.
Shah’s opinion that plaintiff had marked limitations in her ability to maintain attendance and be
punctual and that plaintiff’s alcohol and substance abuse did not contribute to her limitations—
“the records show both that Crump was able to regularly attend psychiatry appointments
regardless of her substance abuse, and that her therapy attendance greatly improved during her
brief periods of abstinence.” R & R 18-19. Judge Rice also noted that the therapy notes cited by
plaintiff as supporting Dr. Shah’s opinion “put most of the blame for any functional limitations

6

on substance abuse or poor-decision making.” R & R at 19 (citing R. 318, 336, 383, 525, 529).
Finally, Judge Rice rejected plaintiff’s argument that Dr. Shah’s opinion was consistent with Dr.
DiTomasso’s opinion, noting that “the two opinions directly conflict with respect to Crump’s
ability to respond appropriately to changes in a work setting.” R & R 19 (citing R. at 400, 647).
Having reviewed the record, the Court agrees with Judge Rice’s conclusion that the
ALJ’s determination with respect to Dr. Shah’s opinion is supported by substantial evidence. In
addition to the inconsistencies discussed by Judge Rice, the ALJ noted that Dr. Shah’s opinion
was inconsistent with plaintiff’s own reports—contrary to Dr. Shah’s opinion, plaintiff reported
that she got along with authority figures, supervisors, and peers, and did not leave her past
employment due to social functioning problems. R. 20 (citing R. at 193, 395).
The Court also rejects plaintiff’s arguments that the ALJ failed to adequately evaluate Dr.
Shah’s opinion under 20 C.F.R. § 416.927. The ALJ was not required to give the opinion of a
treating source controlling weight, or use specific words or a specific format in evaluating the
evidence. See Chandler, 667 F.3d at 361; Diaz, 577 F. 3d at 504.
The Court overrules plaintiff’s first objection for all of the foregoing reasons.
B.

Plaintiff’s Second Objection

Plaintiff next objects to Judge Rice’s determination that the ALJ properly weighed the
opinion of plaintiff’s examining consulting psychologist, Dr. DiTomasso. Dr. DiTomasso
opined that plaintiff was “moderately to markedly impaired at this point in time” in “[m]aking
judgments on work related decisions” and had “marked impairment” in “her ability to interact
appropriately with coworkers, the public, and supervisors” and in “[r]esponding appropriately to
changes in a routine work setting . . . .” R. at 400. The ALJ considered Dr. DiTomasso’s
opinion that plaintiff had these marked limitations in social functioning, “but did not give it great

7

weight” on the grounds that the record showed that plaintiff was “cooperative despite
anger/irritability at times,” and that plaintiff reported “having and living with friends, going out
twice a day, playing volleyball when she could and [having] no problems on the job relating to
dealing with people.” R. at 20 (citing R. at 187-194, 394-401). Plaintiff argues that Judge Rice
erred because (1) Dr. DiTomasso’s opinion that plaintiff had marked social limitations was
consistent with the record, (2) the RFC did not accommodate the limitations found by Dr.
DiTomasso, and (3) the ALJ did not evaluate Dr. DiTomasso’s opinion under the appropriate
regulatory factors. Objections 5-6 (citing 20 C.F.R. § 416.927(c)-(d)).
In the R & R, Judge Rice concluded that the determination by the ALJ that Dr.
DiTomasso’s opinion was inconsistent with the record was supported by substantial evidence.
R & R 16. Judge Rice rejected plaintiff’s argument that Dr. DiTomasso’s opinion was supported
by his observations of plaintiff during the evaluation on the grounds that “[n]one of these
observations . . . related to his findings regarding her social limitations.” Id. (citing R. at 39899). Continuing, Judge Rice noted that Dr. DiTomasso was not aware, because plaintiff did not
inform him, that she had a long-term romantic relationship or of her birthday celebration, an
event that she had “focused on” during her therapy and psychiatry sessions for the month prior to
Dr. DiTomasso’s examination. R & R 17 (citing R. at 64, 270, 509, 251, 380, 399-400). Judge
Rice determined that the record supported the ALJ’s determination with respect to plaintiff’s
social functioning, including plaintiff’s self-reports of her daily activities and social interactions.
R & R 16-17 (citing R. at 20, 251). Finally, Judge Rice rejected plaintiff’s argument that the
ALJ failed to analyze Dr. DiTomasso’s opinion using the applicable regulatory provisions. In
doing so, Judge Rice stated that “[o]ther than social limitations, the ALJ’s RFC is consistent with
Dr. DiTomasso’s assessment of [plaintiff’s] functioning. . . . Because the ALJ’s rejection of Dr.

8

DiTomasso’s opinion regarding [plaintiff’s] social functioning is fully explained by the ALJ and
supported by the record as a whole, the ALJ’s treatment of Dr. DiTomasso’s opinion is
supported by substantial evidence.” R & R 17 (citing R. at 18, 400-01).
The Court concludes that the determination by the ALJ with respect to Dr. DiTomasso’s
opinion is supported by substantial evidence. The Court agrees with Judge Rice’s conclusion
that that the record does not support Dr. DiTomasso’s finding that plaintiff had moderate to
marked limitations in her ability to make “judgments on work related decisions,” and marked
limitations in her ability to “interact[ ] appropriately with coworkers, the public, and supervisors”
and in “[r]espond[ ] appropriately to changes in a routine work setting . . . .” R. at 400. In
addition to the inconsistencies discussed by Judge Rice, Dr. DiTomasso’s opinion that plaintiff is
markedly impaired in her ability to interact appropriately with co-workers and supervisors is
inconsistent with plaintiff’s reports that “she got along well with her peers [and] supervisors,” R.
at 395, and was never fired “because of problems getting along with other people.” R. at 193.
The Court also agrees with Judge Rice that the RFC accommodates Dr. DiTomasso’s
opinion, excepting only that the RFC does not include Dr. DiTomasso’s opinion that plaintiff had
moderate to marked limitations in her ability to make work related decisions, and marked social
limitations in her ability to interact with coworkers, supervisors, and the public, and respond to
changes in a routine work setting. R. 400. However, as discussed above, the ALJ sufficiently
explained her reasons for discounting Dr. DiTomasso’s opinion with respect to these limitations,
and nonetheless included the following limitations in the RFC: plaintiff is limited to “performing
routine tasks, understanding and following short simple instructions, and making simple work
related decisions in an environment with few workplace changes,” and must “avoid interacting
with the public and working co-dependently as if on a team, and is limited to no more than

9

occasional interaction with supervisors.” R. at 18. These limitations correspond, albeit to a less
serious degree, to the limitations found by Dr. DiTomasso.
Finally, the Court rejects plaintiff’s argument that the ALJ was required to specifically
cite and discuss the applicable regulations in weighing Dr. DiTomasso’s opinion. See Diaz, 577
F.3d at 504.
The Court overrules plaintiff’s second objection for all of the foregoing reasons.
C.

Plaintiff’s Third Objection

Plaintiff objects to Judge Rice’s determination that the ALJ properly weighed the opinion
of a reviewing psychiatrist, Dr. Murphy, on the grounds that Judge Rice “adopts the . . .
inaccurate assertion that ‘the only functional area Drs. Shah and DiTomasso prohibited Crump
from performing the unskilled work in her RFC was social functioning,” and incorrectly weighed
Dr. Murphy’s opinion. Objection 7 (citing Brownawell v. Comm’r of Soc. Sec., 554 F.3d 353 (3d
Cir. 2008)). On this issue, the ALJ stated, inter alia, that Dr. Murphy’s opinion was “balanced,
objective, and generally consistent with the evidence of record as a whole,” and that “there are
no opinions from treating or examining sources that are more persuasive and supportable than”
Dr. Murphy’s opinion. R. at 20.
Judge Rice rejected plaintiff’s argument on this issue on the grounds that plaintiff “has
failed to show that she would have been granted benefits even if Dr. Murphy’s opinion was not
given ‘significant weight’ . . . .” R & R 19-20 (citing Shinseki v. Sanders, 556 U.S. 396, 409
(2009)). In so concluding, Judge Rice stated that “the only functional area Drs. Shah and
DiTomasso opined prohibited [plaintiff] from performing the unskilled work identified in her
RFC was social functioning,” the ALJ’s decision to reject those opinions was supported by
substantial evidence, and the ALJ had, despite giving to Dr. Murphy’s opinion significant

10

weight, “included additional social limitations in Crump’s RFC that Dr. Murphy had not
recommended.” Id. at 20.
The Court agrees with Judge Rice’s analysis of this issue, although he did not completely
address all of plaintiff’s so-called marked limitations in his discussion in parts of the R & R. The
marked limitations found by Dr. Shah and Dr. DiTomasso were as follows: Dr. Shah found that
plaintiff had marked limitations in maintaining regular attendance and being punctual,
completing a normal workday and workweek without psychological interruptions, and getting
along with her coworkers or peers. R. at 547. Dr. DiTomasso found that plaintiff had moderate
to marked limitations in her ability to make work related decisions, and marked limitations in her
ability to interact with coworkers, supervisors, and the public, and respond to changes in a
routine work setting. R. 400. Even without Dr. Murphy’s opinion, substantial evidence
supported the ALJ’s determination that these findings were inconsistent with the record, as
discussed above. Furthermore, despite affording Dr. Murphy’s opinion significant weight, the
ALJ included limitations in the RFC that were not found by Dr. Murphy, but corresponded to the
limitations found by Dr. DiTomasso: plaintiff’s RFC was limited to “performing routine tasks,
understanding and following short simple instructions, and making simple work related decisions
in an environment with few workplace changes” and that she “must avoid interacting with the
public and working co-dependently as if on a team, and is limited to no more than occasional
interaction with supervisors.” R. at 18. For these reasons, plaintiff has not shown that the ALJ’s
determination with respect to plaintiff’s functional abilities would have differed had Dr.
Murphy’s opinion not been afforded significant weight. See Holloman v. Comm'r Soc. Sec., 639
F. App'x 810, 814 (3d Cir. 2016) (non-precedential) (stating that the appellant must “‘explain . . .

11

how the . . . error to which [s]he points could have made any difference.’” (citing Shinseki, 556
U.S. at 409)). The Court thus overrules plaintiff’s third objection.
D.

Plaintiff’s Fourth Objection

Plaintiff’s fourth and final objection is that Judge Rice erred in concluding that the ALJ
properly discounted plaintiff’s self-reports of her symptoms. Plaintiff argues that Judge Rice’s
reasons for discrediting plaintiff’s self-reports of her symptoms are “based largely on the ALJ’s
mischaracterization of the record,” and that the ALJ failed to analyze plaintiff’s testimony or
characterization of her symptoms by specifically listing the factors listed in 20 C.F.R.
§ 416.929(c). Objections 9. On this issue, the ALJ determined that plaintiff’s reports of her
symptoms “were not entirely credible,” R. at 19, and in support of this determination listed
inconsistencies in plaintiff’s reasons for leaving her jobs at a candy factory and at Wendy’s, id.
(citing R. at 275, 334), in her reports of side effects from her medication and sleeping habits, id.,
and in her reports with respect to her daily activities and social activities, R. at 20.
In the R & R, Judge Rice concluded that “[t]he ALJ based her decision to discount
Crump’s reported symptoms on factors supported by the record that have a legitimate nexus to
her credibility” and that this determination was supported by substantial evidence in the record.
R & R 14. Judge Rice rejected plaintiff’s arguments that the ALJ mischaracterized the record on
the grounds that, contrary to plaintiff’s assertions, the record showed that plaintiff regularly
reported no side effects from her medication, id. (citing R. at 341, 343, 349, 381, 447, 464, 477,
480, 484, 494, 501, 508, 510, 519, 521, 530, 539, 541), plaintiff’s inconsistent attendance and
participation in therapy was not solely attributable to her symptoms, id. (citing R. at 318, 347,
356, 454, 504, 523), and plaintiff was not completely “forthcoming” about her substance abuse,
id. (citing R. at 47, 345, 360, 342, 344, 440-42, 458-63, 468, 483).

12

The Court concludes that the ALJ’s decision to discount plaintiff’s reports of her
symptoms was supported by substantial evidence. The Court rejects plaintiff’s arguments that
the ALJ mischaracterized the record and agrees with Judge Rice that plaintiff’s reports with
respect to her symptoms were inconsistent. For example, plaintiff frequently reported no side
effects from her medication, R. at 341, 343, 349, 381, 447, 464, 477, 480, 484, 494, 501, 508,
510, 519, 521, 530, 539, 541, and her reports with respect to her sleeping habits were
contradictory, compare R. at 57, 59 (plaintiff’s testimony of significant sleep issues), with R. at
349, 341, 339, 338, 381, 477, 510, 521 (plaintiff’s reports of no or limited sleep issues).
Plaintiff’s reports with respect to her daily activities and social activities support the ALJ’s
determination that plaintiff was not significantly limited in these areas. R. at 20, 190, 191, 193.
The Court also rejects plaintiff’s argument that the ALJ was required to specifically list the
regulatory factors she used to assess plaintiff’s credibility. See Diaz, 577 F. 3d at 504. The
Court thus overrules plaintiff’s fourth objection.
V.

CONCLUSION

For the foregoing reasons, the R & R is approved and adopted, plaintiff’s Objections are
overruled, plaintiff’s Request for Review is denied, and judgment is entered in favor of
defendant, Nancy Berryhill, Acting Commissioner of Social Security Administration, and against
plaintiff, Saverna Lynette Crump. An appropriate order follows.

13