THOMPSON v. COLVIN
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 7/12/17. 7/13/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERTA LAJEAN THOMPSON,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
July 13, 2017
Before the Court is Plaintiff Roberta Lajean Thompson’s Objections to United States
Magistrate Judge David R. Strawbridge’s Report and Recommendation. (Doc. No. 19.) Plaintiff
filed a counseled Complaint seeking review of her claim for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f (the “Act”). (Doc.
No. 3 at 1.) On January 8, 2016, the Court referred this matter to Magistrate Judge Strawbridge
for a Report and Recommendation. (Doc. No. 17.) On March 1, 2017, Magistrate Judge
Strawbridge filed a Report and Recommendation finding that Plaintiff’s request for review of her
disability claims should be denied and that the decision of the Commissioner be affirmed. (Doc.
Nancy A. Berryhill is the acting Commissioner of the Social Security Administration.
Pursuant to Rule 24(d) of the Federal Rules of Civil Procedure, Berryhill replaces Carolyn W.
Colvin as Defendant in this case and no further action is needed to meet the requirement of the
final sentence of 42 U.S.C. § 405(g) which states:
Any action instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner
of Social Security or any vacancy in such office.
On March 15, 2017, Plaintiff filed timely Objections to the Report and
Recommendation. (Doc. No. 19.) On March 24, 2017, Defendant filed a Response. (Doc. No.
21.) Plaintiff’s Objections are now ripe for review and the Court will decide whether to adopt
the Report and Recommendation (Doc. No. 18) approving the Commissioner’s denial of funds
A. Factual and Procedural History
In the Report and Recommendation, Magistrate Judge Strawbridge summarized the
relevant facts of the case as follows:
Thompson filed the SSI application giving rise to this appeal on February 22,
2012, less than a year after filing an earlier SSI claim that she did not pursue
further after it was denied in December 2011. She was fifty one years old, with a
tenth grade education, and had a sporadic work history of short-term job[s]. She
last worked, in a housecleaning position, on August 31, 2010, when her employer
determined that “[her] services were no longer needed.” After the state agency
denied her 2012 claim, Thompson requested a hearing, which was held before an
ALJ [Administrative Law Judge] on September 26, 2013. Thompson appeared
with counsel and both she and a vocational expert (“VE”) testified.
Thompson has been diagnosed with hepatitis C[;] with cirrhosis and anemia;
obstructive sleep apnea; asthma; a disorder of the left arm from two fractures
requiring the installation of surgical hardware; major depressive disorder; panic
disorder with agoraphobia;2 and substance abuse. She acknowledged at the
Agoraphobia usually involves a fear of being caught in a place where “escape” would not be
easy, or would be embarrassing. Mary Rudy and Andrea Barilla, Panic Disorder with
Agoraphobia, Healthline, (Feb. 26, 2016), http://www.healthline.com/health/panic-disorderwith-agoraphobia#overview. The Anxiety and Depression Association of America states that
people with Agoraphobia:
Stop going into situations or places in which they have previously had a panic
attack in anticipation of it happening again.
[T]hey typically avoid public places where they feel immediate escape might be
difficult, such as shopping malls, public transportation, or large sports arenas.
About one in three people with panic disorder develops agoraphobia. Their
world may become smaller as they are constantly on guard, waiting for the next
hearing that she had been a near-daily user of crack cocaine for many years. She
was unable to recall in many cases what account she had given to various Social
Security personnel and examiners in 2011 and early 2012 concerning her drug and
alcohol use in that it “was so long ago” and she “was always stoned, always[.]”
She stopped using cocaine and alcohol on August 30, 2012 and, after a brief
relapse, started a new period of sobriety on September 17, 2012 that was still
ongoing as of the hearing on September 23, 2013, a full year later.
At the hearing, both the ALJ and counsel attempted to elicit from Thompson how
her functioning had changed since she stopped abusing drugs and alcohol. These
inquiries often led to confusing responses. Thompson reported, for example, that
she had ceased smoking crack on a daily basis and had even recently cut down
significantly on her cigarette smoking, but at the same time described her
breathing as “worse than I was before.” After initially stating that her feelings of
paranoia worsened after she stopped using drugs, she eventually clarified that her
paranoia had improved.
Thompson also testified about how depression has affected her since she became
sober: that she only wants to keep to herself and that when she is around other
people she feels “annoyed” and starts shaking, as she apparently was doing during
the hearing. She also testified that she began Interferon injection therapy for
hepatitis in March 2013 and tended to be extremely fatigued for the first two days
of the weekly treatment cycle. In addition, she described a constant state of pain
and throbbing in her left arm from an incident she was involved in three years
earlier that required reconstructive surgery and hardware implants. She indicated
that her fingers would cramp up after a period of time and she would have to pull
them apart. She stated that she could not [do] anything for too long in her left
hand but acknowledged that she was right-handed and was not limited in what she
could do with that hand. She testified that she tries to get up and do housework
but she “get[s] frustrated,” so family members help her with her chores. In other
submissions or medical examinations, however, she sometimes offered
contradictory responses. As the ALJ noted, for example, Thompson indicated in
her March 2012 function report that she washed dishes, completed her laundry,
and assisted with other household chores, and reported in a May 2013
examination that she was independent in her activities of daily living. He also
observed her testimony that she attended her medical and therapy appointments
throughout the week and used public transportation independently. In addition,
panic attack. Some people develop a fixed route or territory, and it may become
impossible for them to travel beyond their safety zones without suffering severe
Understand the Facts: Panic Disorder and Agoraphobia, Anxiety and Depression Association of
America (2010-2016), http://www.adaa.org/understanding-anxiety/panic-disorder-agoraphobia.
while she did not spend time with others, she stated at the hearing that she enjoys
attending her support groups and strives to be around “positive people.”
The record before the ALJ included documentation of her treatment with
psychiatrists and therapists at Penn Behavioral Health. Thompson was first
evaluated on July 12, 2012 upon referral by her liver doctor. She underwent
another psychiatric evaluation there on January 28, 2012, when she had been
sober for four months. She described to the psychiatrist at that time that she had
struggled with suicidal ideation and hallucinations while using cocaine and
alcohol, and described engaging in a harmful act to a friend while under the
influence. She attributed that behavior, however, to the cocaine use. She noted
that since she had become sober she did not feel the need to take Prozac for
anxiety, as she had done intermittently before. She reported that she had “gone
through the shakes” in the past when she tried to self-taper alcohol. The
psychiatrist noted that her history of mood disorder was “most likely substance
induced vs. MDD [Major Depressive Disorder] [induced].”
The record also contained reports of three consultative examinations that
Thompson underwent when her application was pending with the state agency.
The first two related to her earlier SSI application, in that they took place in July
and November 2011. Those evaluations, by Mosen Alavi, M.D. and Leonard
Popowich, D.O., focused on her physical condition due to her left arm
impairment, history of hypertension, and asthma, and also included assessments
by the physicians concerning her physical functional capacity. As part of the
evaluation by the state agency with regard to her February 2012 application, she
underwent a psychological evaluation on May 10, 2012. Rebecca Canna, Psy.D.,
prepared a narrative report and opined on the type and degree of limitations that
Thompson had suffered as a result of mental impairments. While Thompson
reported to Drs. Alavi and Popowich in 2011 that she drank occasionally and had
previously used cocaine, she did not report any history of cocaine abuse to Dr.
Canna at her May 2012 evaluation. Rather she reported that she drank daily,
sometimes quite heavily, but that she had not had a drink in three weeks.
Thompson later testified at her hearing that she did not begin a sustained period of
recovery from either cocaine or alcohol until September 2012. Dr. Canna rated
her as having “marked” restrictions in various categories of social functioning but
no more than “slight” restrictions in her abilities to understand, remember, and
carry out instructions.
A final piece of medical opinion evidence is reflected in the state agency
disability determination explanation, Exhibit 1A, which contains the assessment
of state agency reviewing psychologist Karen Weitzner, Ph.D. on June 29, 2012,
based upon the various records on file at that point, including the consultative
report and opinion of Dr. Canna. Dr. Weitzner opined that Thompson’s degree of
limitations was “moderate” as to the ability to understand and remember detailed
instructions; to maintain attention and concentration for extended periods; to
interact appropriately with the general public; to maintain socially appropriate
behavior and to adhere to basic standards of neatness and cleanliness; and to
respond appropriately to changes in the work setting. She did not agree with Dr.
Canna that any of Thompson’s restrictions in social functioning reached the
“marked” level. Dr. Weitzner explained how she reached her opinion:
Claimant is diagnosed with Major Depressive Disorder and
Alcohol Dependence, r/o Cocaine Abuse. Claimant is prescribed
psychotropic medication by her physician.
She has been
inconsistent in participating in any recommended treatment.
Claimant reports a past history of suicidality though not in several
years. She drinks alcohol almost daily and reports periodic
cocaine use as well. Claimant can care for hygiene and daily
chores within her household. She reports she is supported by
family. She is reluctant to go out in public but does take public
transportation independently and is able to shop for food and
personal items. Claimant has limited memory but her overall
cognitive functioning is intact. Claimant is guarded around others
and would work best away from the public. Claimant’s allegations
are partially credible. The MSO [medical source opinion] by Dr.
Canna was considered and is partially consistent with the current
assessment. Claimant is capable of simple, routine work.
The ALJ concluded that Thompson could not perform her past work. As we
discuss in greater detail below, however, he determined that she retained the
capacity for unskilled work at the light exertional level with certain
environmental, postural, and psychological caveats. Accordingly, he concluded
that Thompson was not disabled. The Appeals Council declined Plaintiff’s
request for review, rendering the ALJ’s January 29, 2014 decision the final
decision of the Commissioner.
(Doc. No. 18 at 2-9. (internal footnotes, citations, and emphasis omitted).) On February 28,
2017, Magistrate Judge Strawbridge denied Plaintiff’s request for review. The Court will now
review Plaintiff’s claims de novo.
B. Relevant Social Security Administration Regulations
To prove a “disability,” a claimant must demonstrate “the inability to do any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 20 C.F.R. § 404.1505(a). The claimant has the burden of
proving the existence of a disability and can satisfy this burden by showing an inability to return
to former work. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). If the claimant does so, the
burden shifts to the Commissioner to show that, given the claimant’s age, education, and work
experience, she is able to perform specific jobs that exist in the national economy. 42 U.S.C. §
423(d)(2)(A); 20 C.F.R. § 416.920(f).
When evaluating a disability, the Social Security Administration uses a five-step process,
which is followed in a set order:
At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
At the second step, we consider the medical severity of your
impairment(s). If you do not have severe medically determinable physical
or mental impairment that meets the duration requirement in § 404.1509,
or a combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
At the third step, we also consider the medical severity of your
impairments(s). If you have an impairments(s) that meets or equals one of
our listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled.
At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant
work, we will find that you are not disabled.
At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if
you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make
an adjustment to other work, we will find that you are disabled.
Id. at § 404.1520(a)(4)(i)-(v).
STANDARD OF REVIEW
When reviewing a final decision of the Commissioner of Social Security, the Court must
determine whether the record demonstrates substantial evidence to support the Commissioner’s
decision. 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla
[of evidence] . . . [and includes] such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cherry v. Barnhart, 29 F. App’x 898, 901 (3d Cir. 2002)
(quoting Richardson v. Perales, 402 U.S. 389, 407 (1971)). The Commissioner’s findings of fact,
as long as they are supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g).
Because the Commissioner adopts an ALJ’s decision as his findings of fact, the ALJ must
set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir.
1974); see also 42 U.S.C. § 405(b)(1). An ALJ must consider, evaluate, and refer to specific
medical evidence in the record in his decision. See Reefer v. Barnhart, 326 F.3d 376, 381-82 (3d.
Cir. 2003). Based on this evidence, an ALJ determines whether a claimant proved a “disability,”
and the Commissioner adopts this decision as his finding of fact. Even if the record offers
evidence that undermines the ALJ’s conclusion, the Court will not overrule the decision of the
ALJ unless the ALJ’s finding is not supported by substantial evidence. Simmonds v. Heckler,
807 F.2d 54, 58 (3d Cir. 1986). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate,” not “a mere scintilla.” Burnett v. Comm’r of Soc. Sec. Admin.,
220 F.3d 112, 118 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d. Cir. 1999)).
In her Objections, Plaintiff argues that Magistrate Judge Strawbridge erred by not
accepting the arguments made in her initial brief. (Doc. No. 21 at 1.) Plaintiff argues that
Magistrate Judge Strawbridge erred for two reasons in recommending that the Administrate Law
Judge’s (“ALJ”) decision be affirmed and adopted in its entirety. (Doc. No. 19 at 2, 8.) First,
Plaintiff contends that Magistrate Judge Strawbridge erred by affirming the ALJ’s decision
because the ALJ erred in giving “little weight” to Dr. Canna’s opinion and by “cherry-picking
from mixed evidence to support a denial of benefits.” (Id. at 2, 4.) Second, Plaintiff argues that
Magistrate Judge Strawbridge erred by agreeing with the ALJ’s decision to omit the limitations
assessed by Dr. Popowich in his Residual Functional Capacity (“RFC”) finding. (Id. at 7.)
Plaintiff’s two Objections mirror her arguments made while Magistrate Judge Strawbridge was
deciding the Report and Recommendation. The Court will discuss each argument in turn.
1. Magistrate Judge Strawbridge Correctly Found that the ALJ’s Decision to
Reject Dr. Canna’s Opinion was Proper and Supported by Substantial Evidence
Plaintiff contends that the ALJ rejected Dr. Canna’s opinion “for erroneous reasons” and
therefore his decision should be reversed. (Id. at 7.) Plaintiff claims that the ALJ’s decision was
based on his “selective citation of the record.” (Id. at 3.)
Here, Magistrate Judge Strawbridge accepted the ALJ’s finding that Dr. Canna’s opinion
was given “little weight” because:
Dr. Canna was misinformed, by Thompson, about the ongoing nature of her
drinking at that time and the fact that she was also then actively abusing cocaine.
She [Dr. Canna] did not have the benefit of any of Thompson’s other medical
records or statements. She necessarily based her opinion on what Thompson told
her in the examination and her observations of how Thompson presented.
(Doc. No. 18 at 16.) An ALJ may decide to discredit a treating physician’s opinion when it is
contradicted by other competent medical evidence of record. Plummer v. Apfel, 186 F.3d 422,
429 (3d Cir. 1999). In Morrison v. Barnhart, the United States Court of Appeals for the Third
Circuit found that:
The mere memorialization of a claimant’s subjective statements in a medical
report does not elevate those statements to a medical opinion. An ALJ may
discredit a physician’s opinion on disability that was premised largely on the
claimant’s own accounts of her symptoms and limitations when the claimant’s
complaints are properly discounted.
78 F. App’x. 820, 824-25 (3d Cir. 2003). The ALJ gave Dr. Canna’s opinion little weight
because “the objective evidence of record [did] not support the claimant’s allegations of [an]
inability to engage in sustained work activity.” (Doc. No. 18 at 14.) The ALJ found that Dr.
Canna’s opinion was based on Plaintiff’s own allegations, and as such was inconsistent with
objective clinical findings of record. (Id. at 14-15.) The ALJ noted that “while he found
Thompson credible regarding her drug use and sobriety, he believed she overstated her
functional limitations.” (Id. at 14.) Additionally, the ALJ found that Plaintiff’s benefits should
be denied because:
In Plaintiff’s May 2012 consultative examination, Plaintiff presented as alert and
oriented to person, place, time, and situation, with calm behavior, and speech
within normal limits. Although the [P]laintiff’s mood was described as anxious,
depressed and tearful at times throughout the examination, her thought processes
were logical, goal-directed and within normal limits. Most recently, Plaintiff
firmly denied any hallucinations or suicidal and homicidal ideations.
Moreover, the ALJ explained how he reconciled the conflicting medical opinions that
were offered. The ALJ stated that he gave more weight to the opinions of the state agency
medical consultants because they were largely consistent with the objective medical evidence of
record and the residual functional capacity finding. (Id. at 15.) These statements demonstrate
that the ALJ considered the opinion of Dr. Canna but found inconsistencies with the objective
clinical findings of record because Plaintiff was actively drinking and abusing cocaine at the time
of Dr. Canna’s evaluation: Plaintiff indicated in the Function Report Questionnaire from March
that she had “no problems” getting along with others, and she did not select
“completing tasks,” “concentration,” “understanding,” or “following instructions” as areas
affected by her conditions. Moreover, Dr. Canna described Plaintiff’s restriction as “marked” in
all areas of social functioning. Dr. Canna did not indicate how she reconciled her findings with
the other clinical evidence of record including that Plaintiff:
Arrived at the appointment on-time, was well-groomed and appropriately dressed,
was cooperative with the evaluator, related appropriately to the evaluator, and that
she reported that she gets along with her family, who help her with household
(Doc. No. 18 at 16-17.) Here, Plaintiff’s active drug and alcohol use, incoherent questionnaire
responses, and social functioning scores suggest that Dr. Canna’s evaluation may have been
skewed. The record reflects substantial evidence to support the denial of benefits in this case.
For these reasons, the Court agrees with Magistrate Judge Strawbridge’s finding that the
ALJ properly found Dr. Canna’s opinion to warrant little weight in light of Plaintiff’s statements
to the state agency. (Id. at 17.) As a result, Plaintiff’s first Objection will be denied.
2. Magistrate Judge Strawbridge Correctly Found that the ALJ’s Decision to Omit
Some of the Limitations Assessed by Dr. Popowich was Proper and Supported
by Substantial Evidence
Next, Plaintiff claims that the ALJ erred by failing to include the limitations assessed by
Dr. Popowich in his RFC finding. (Doc. No. 19 at 7.)
Dr. Popowich evaluated Plaintiff in
November 2011, when she was eleven months post-surgery for her forearm fracture. (Doc. No.
18 at 22.) Dr. Popowich found Plaintiff to have marked limitations in the areas of handling,
fingering, feeling, and reaching (other than overhead reaching). (Id. at 22.) Dr. Popowich found
that the x-ray reports from this time indicated that the fracture was still healing. (Id.) Six
months later, Dr. Balogh examined Plaintiff’s forearm. Dr. Balogh was the reviewing physician
when Plaintiff’s SSI application was ripe for initial determination. (Id. at 22.) He found that
Plaintiff’s ability to engage in pushing and pulling, including operation of hand controls, was
unlimited, except for lifting and carrying. (Id. at 21.)
The ALJ’s RFC finding includes Plaintiff’s physical limitations regarding pushing and
pulling, as well as overhead reaching with her left arm. The report, however, did not reflect all
of the limitations that Dr. Popowich believed Plaintiff was subject to at the time of his
examination in November 2011. (Id.)
The ALJ only accepted part of Dr. Popowich’s opinion.
The ALJ found that between February 2012 and January 2014, the objective medical evidence of
record reflected no complaints of difficulty with handling, fingering, feeling, or reaching; no
treatment and no complaints at the hearing of functional limitations other than of cramping of
fingers over time. (Id. at 22.)
The Third Circuit has stated that an ALJ is not expected to discuss or make reference to
every piece of relevant evidence included in the record so long as he or she considers and
evaluates the medical evidence in the record. See Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir.
2001); Soto v. Barnhart, No. 04-1588, 2005 WL 1367783, at *2 (E.D. Pa. Jun. 6, 2005). The
record reflects that the ALJ considered Dr. Popowich’s and Dr. Balogh’s report and used it in his
findings. (Doc. No. 18 at 21.) Therefore,
the ALJ was entitled to omit from his residual functional capacity finding any mention of the
marked limitations in handling, fingering, feeling, or reaching other than overhead because
overwhelming evidence in the record discounted its probative value rendering it irrelevant.
Johnson v. Comm’r Soc. Sec., 529 F.3d 198, 205 (3d Cir. 2008).
For this reason, this Court agrees with Magistrate Judge Strawbridge’s determination that
the ALJ adequately explained the evidentiary basis for his findings. The ALJ’s reconciliation of
the differing opinions of the consultative examiner from November 2011, Dr. Popowich, and the
state agency reviewing physician from May 2012, Dr. Balogh, is supported by substantial
evidence. (Doc. No. 18 at 23.) As a result, Plaintiff’s second Objection will be denied.
For these reasons, Plaintiff’s Objections to the Report and Recommendation filed by
Magistrate Judge Strawbridge will be denied. (Doc. No. 19.) The Report and Recommendation
(Doc. No. 18) will be approved and adopted. An appropriate Order follows.
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