MARTINEZ v. COLVIN

Filing 20

ORDER THAT THE R&R IS APPROVED AND ADOPTED. THE DECISION OF THE COMMISSIONER OF THE SSA IS AFFIRMED. PLAITNIFFS REQUEST FOR REVIEW IS DENEID. JUDGMENT SHALL BE ENTERED IN THIS AMTTER IN FAVOR OF DEFENDANT. THE CLERK OF COURT IS DIRECTED TO CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 8/31/2016. 8/31/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANGELA MARTINEZ
v.
CAROLYN W. COLVIN

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CIVIL ACTION

NO. 2:15-cv-3329

ORDER
AND NOW, this 31st day of August 2016, upon careful and independent consideration of
Plaintiff Angela Martinez’s Motion in Support of Request for Review (Doc. No. 9), Defendant
Carolyn W. Colvin’s Response to Request for Review (Doc. No. 12), Plaintiff’s Reply (Doc. No.
14), the Report and Recommendation (“R. & R.”) of United States Magistrate Judge Thomas J.
Rueter (Doc. No. 16), Plaintiff’s objections to the R. & R. (Doc. No. 17), and Defendant’s
response thereto (Doc. No. 19), it is hereby ORDERED as follows:
1. Plaintiff’s objections to the Report and Recommendation are OVERRULED.
We adopt the R. & R. by Magistrate Judge Rueter, and write separately only to address
Plaintiff’s objections to the R. & R. When reviewing a R. & R. to which a party has
objected, a court must make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). Plaintiff raises three objections to the R. & R.; we shall address each in
turn.
Plaintiff’s first objection stems from the fact that Dr. Kamenar, a non-examining state
agency consultant, did not diagnosis Plaintiff with degenerative disc disease, but the
Administrative Law Judge (“ALJ”) found degenerative disc disease to be a severe
impairment. (Pl.’s Objs. 2, Doc. No. 17.) Plaintiff argues in her first objection that “[i]t is
logical that the addition of an ALJ-acknowledged ‘severe’ lumbar . . . impairment to
those actually considered by Dr. Kamenar, would further reduce [P]laintiff’s potential
standing/walking and other physical capabilities.” As Defendant identifies, however, Dr.
Kamenar provided an evaluation in 2012, but Plaintiff did not present symptoms of
degenerative disc disease until January 2014, when she went to the emergency room.
(Def.’s Resp. to Pl.’s Req. for Review 7, Doc. No. 12.) Nevertheless, the ALJ discussed
Plaintiff’s degenerative disc disease on multiple occasions in his decision. (See R. 95,
100.) 1 Although the ALJ found Plaintiff’s degenerative disc disease to be a severe
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Citations to the administrative record are denoted by “R.” followed by the page number.

impairment, the ALJ found that “[Plaintiff] received little else in the way of treatment,
except for some physical therapy for the problem and her complaints of back pain are not
pervasive in the record.” (R. 100.) In considering Plaintiff’s degenerative disc disease,
along with other severe impairments, the ALJ found Plaintiff to be capable of light work.
(R. 99.) Consequently, while Dr. Kamenar’s report did not diagnosis Plaintiff with
degenerative disc disease, the ALJ adequately discussed Plaintiff back issues and
explained the rationale for his decision. Therefore, as Magistrate Judge Rueter found, the
ALJ’s decision was supported by substantial evidence. (R. & R. 14.) 2
Plaintiff argues in her second objection that “[t]here are no ‘supporting explanations’ of
record attributable to Dr. Croyle[, a state agency consulting psychologist],” which are
required whenever an ALJ places weight on a non-examining source’s opinion by 20
C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3). (Pl.’s Objs. 6.) However, as Magistrate Judge
Rueter highlighted, Dr. Croyle did provide an explanation, along with a complete
assessment. (See R. & R. 16 (citing R. 71).) Plaintiff simply mischaracterizes Dr.
Croyle’s assessment and explanation by referring to it as “conclusory.” (See R. 70–71.)
Not only were Dr. Croyle’s assessment and explanation factual in nature, but the ALJ
discussed Dr. Croyle’s factual findings in his decision. (See, e.g., R. 97 (noting, among
other findings, that “[Dr. Croyle] found no more than moderate limitations of functioning
noting that the claimant was not significantly limited in her ability to understand,
remember, and carry out very short, simple instructions; that she did not have
understanding or memory limitations, but that her ability to maintain attention and
concentration for extended periods was moderately limited”).)
Plaintiff also argues in her second objection that Dr. Croyle does not have the
“‘vocational’ expertise to assess the acceptable employer requirements in the real world
of competitive, full-time employment at Step 5 of the evaluation process.” (Pl.’s Objs. 6.)
Like the first portion of Plaintiff’s second objection, this argument also misconstrues Dr.
Croyle’s assessment and explanation. Dr. Croyle did not “assess acceptable employer
requirements” and the ALJ did not discuss Dr. Croyle’s assessment at Step 5 of the
evaluation process. Rather, the ALJ discussed Dr. Croyle’s assessment at Step 3 and Step
4 (see R. 97, 101), and Dr. Croyle’s explanation is provided in his capacity as a
psychologist. 3
Plaintiff argues in her final objection that the ALJ’s duty to develop the record requires
an evaluation from a medical advisor because no expert evaluated Dr. Wrable’s objective

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Plaintiff argues that Magistrate Judge Rueter “sidestep[ped]” the issue and failed to discuss the cases cited by
Plaintiff, specifically Caruso v. Comm’r of Soc. Sec., 99 F. App’x 376, 378 (3d Cir. 2004) and Santise v. Schweiker,
676 F.2d 925, 927 (3d Cir. 1982). After reviewing the cases, it is unclear how Caruso or Santise supports or relates
to Plaintiff’s particular argument.
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We note that Dr. Croyle’s statement that “THE CLAIMANT IS CAPABLE OF PERFORMING SIMPLE,
ROUTINE WORK,” is an evaluation of his substantive assessment, which appears in the explanation and
assessment preceding that statement. (See R. 70–71.) There is no indication that the ALJ used Dr. Croyle’s opinion
in a vocational manner. Rather, the ALJ only discussed Dr. Croyle’s assessment for its psychological assessment
and explanation, as provided above, and came to his own determination as to Plaintiff’s capabilities.

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test results. 4 (Pl.’s Objs. 7–8.) After an independent review of the record, we agree with
Magistrate Judge Rueter that a consultative examination was not necessary to enable the
ALJ to make the disability decision. (See R. & R. 25.) The ALJ noted that Dr. Wrable
was not a treating source and only saw Plaintiff once. 5 (R. 101.) The ALJ then held that
“[Dr. Wrable’s] findings are inconsistent with the serial mini-mental status examinations
from [Plaintiff’s psychological treating] facility.” (R. 101.) The ALJ’s decision was
supported by substantial evidence, and there was no need in this case for a consultative
examination to evaluate Dr. Wrable’s tests. See Jakubiwski v. Comm’r of Soc. Sec., 215
F. App’x 104, 107 (3d Cir. 2007) (“[A]n ALJ is not required under the Social Security
regulations to seek out medical expert testimony.”).
Plaintiff relies on the Third Circuit’s decision in Morales v. Apfel, 225 F.3d 310, 319 (3d
Cir. 2000), and Brownawell v. Comm. of Soc. Sec., 554 F.3d 252, 356 (3d Cir. 2008), for
the proposition that it is insufficient for an ALJ to reject a physician’s assessment based
on the ALJ’s own impression of inconsistency between treating records absent
consideration of the pressures of a work week. (See Pl.’s Objs. 8 (citing Pl.’s Mot. in
Supp. 17–19, Doc. No. 9).) This reliance is misplaced because both Morales and
Brownawell are distinguishable from the present case on the facts. In Brownawell, the
Third Circuit held that the ALJ “relied on facts that were clearly erroneous in making a
decision that failed to give appropriate weight to the opinion of Brownawell’s treating
physicians, Dr. Phillip Grem, and her consulting psychiatrist, Dr. Picciotto, and instead
improperly favored the opinion of the non-examining psychologist, Dr. Jonathan
Rightmyer.” 554 F.3d at 355. In Morales, the Third Circuit held that “[t]he ALJ cannot,
as he did here, disregard [the medical opinion of claimant’s treating physician] based
solely on his own ‘amorphous impressions, gleaned from the record and from his
evaluation of [the claimant’s credibility].’” 225 F.3d at 318. In both Morales and
Brownawell, the court admonished “that a doctor’s observation that a patient is “‘stable
and well controlled with medication’ during treatment does not [necessarily] support the
medical conclusion that [the patient] can return to work.” Brownawell, 554 F.3d at 356
(quoting Morales, 225 F.3d at 319). In the present case, unlike in Brownawell and
Morales, the ALJ discredited Dr. Wrable’s opinion on the facts because he found it to be
inconsistent with Plaintiff’s treating records. (R. 101.) The ALJ did not reject a treating
physician’s opinion by making speculative inferences from medical reports, as was
problematic in Morales and Brownawell. For the reasons discussed by Magistrate Judge
Rueter (R. & R. 20–23), the ALJ’s decision in the present case is supported by substantial
evidence. Consequently, because the ALJ did not employ the problematic logic discussed
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Plaintiff also argues that no expert reviewed the updated psychological treating records, but this may be dismissed
because the record contained “almost up to date” treatment records from Northeast Community Health Center
through January 2014. (R. & R. 24.) As noted by the Magistrate Judge, an “ALJ’s duty to develop the record does
not require a consultative examination unless the claimant establishes that such an examination is necessary to
enable the ALJ to make the disability decision.” (R. & R. 24 (citing Thomas v. Halter, 45 F. App’x 146, 149 (3d Cir.
2002). Here, Plaintiff’s argument focuses primarily on Dr. Wrable’s objective tests, and Plaintiff provides no
reasons for why an expert examination was required to review Plaintiff’s updated psychological treating records.
We note, as well, that the ALJ did evaluate Plaintiff’s updated treatment records. (R. 101–102.)
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At a hearing in this case, Plaintiff’s counsel requested that the ALJ order further psychological evaluation to assess
the “borderline intellectual functioning” stemming from Dr. Wrable’s tests. (R. 57–59.) The ALJ ultimately denied
Plaintiff’s request.

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in Brownawell and Morales, those cases do not support Plaintiff’s contention that further
expert examination is required to assess the results from Dr. Wrable’s tests.
2. The R. & R. is APPROVED and ADOPTED.
3. The decision of the Commissioner of the Social Security Administration is AFFIRMED.
4. Plaintiff’s request for review is DENIED. Judgment shall be entered in this matter in
favor of Defendant. The Clerk of Court is directed to close this matter for statistical
purposes.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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