DIORIO v. COLVIN

Filing 13

ORDER THAT DIORIO'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. DIORIO'S REQUEST FOR REVIEW IS DENIED. JUDGMENT IS ENTERED AFFIRMING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY. THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 11/22/2017. 11/22/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS WILLIAM DIORIO, JR.
v.
Nancy A. Berryhill, 1
ACTING COMMISSIONER OF SOCIAL
SECURITY

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CIVIL ACTION
No. 15-6713

ORDER
AND NOW, this 22nd day of November, 2017, upon consideration of Plaintiff Thomas
William Diorio, Jr.’s Request for Review, and the Commissioner of Social Security’s response,
and after careful and independent review of the Report and Recommendation of United States
Magistrate Judge Lynne A. Sitarski, and Diorio’s objections, it is ORDERED:
1. Diorio’s objections to the Report and Recommendation (Document 11) are
OVERRULED 2;

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Federal Rule of Civil Procedure 25(d), Berryhill is substituted for Carolyn W. Colvin
as the Defendant in this case.
2

Diorio seeks review of the denial of his application for Disability Insurance Benefits by the
Commissioner of Social Security. In a decision issued on June 23, 2014, an Administrative Law
Judge (ALJ), applying the Social Security Administration’s five-step sequential evaluation
process for determining whether an individual is disabled, see 20 C.F.R. § 404.1520, concluded
Diorio was not disabled at any time during the relevant period. The ALJ found Diorio was
severely impaired by degenerative disorders of the spine, obesity, depression, and anxiety.
However, the ALJ concluded Diorio’s severe impairments did not meet or medically equal any
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Upon consideration of the
record, including Diorio’s medical records and hearing testimony, as well as the hearing
testimony of a vocational expert, the ALJ concluded Diorio retained the residual functional
capacity (RFC) to perform sedentary work, subject to the following additional limitations: (1) he
can climb ramps and stairs only occasionally, never climb ladders, ropes, and scaffolds, and
occasionally balance, stoop, kneel, crouch, and crawl; (2) he cannot perform work that requires
frequent verbal/telephone communication; (3) he is limited to performing simple, routine,
repetitive tasks in a work environment free of fast-pace production requirements, making simple
work-based decisions, and handling few if any workplace changes; (4) he cannot have

continuous interaction with the public; and (5) he can be around/in proximity to coworkers and
supervisors but works best on isolated independent work assignments. Based on this RFC
assessment, the ALJ found Diorio was not capable of performing his past relevant work, but was
capable of working as a break lining coater, document preparer, and addresser.
In his Request for Review, Diorio argues the ALJ’s decision is not supported by
substantial evidence because the ALJ failed to properly evaluate (1) the medical opinion
evidence from Diorio’s treating providers; and (2) Diorio’s subjective complaints of pain. On
February 23, 2017, the Magistrate Judge issued a Report and Recommendation (R&R)
addressing these alleged errors, concluding the ALJ’s decision was supported by substantial
evidence, and recommending the Commissioner’s denial of benefits be affirmed. Diorio filed
objections to the R&R, again challenging the ALJ’s failure to properly evaluate the treating
source opinions and challenging the Magistrate Judge’s analysis of that issue.
Under 28 U.S.C. § 636(b)(1), this Court reviews de novo “those portions of the report or
specified proposed findings or recommendations to which objection is made.” Upon de novo
review of the record, this Court finds Diorio’s objections meritless.
As to his mental impairments, Diorio argues the ALJ erred by assigning minimal weight
to the opinion of his treating psychiatrist Dr. George Adams, who opined that Diorio lacks the
capacity to perform simple repetitive work on a sustained and continuing basis. The Court
disagrees. Although Dr. Adams described Diorio as depressed, irritable, and/or anxious
throughout his treatment notes, he also consistently described Diorio’s physical appearance as
appropriate, his thoughts as logical, his interaction as cooperative, and his social skills as
adequate. Further, Dr. Adams’s opinion directly contradicts his treatment notes in some
respects. For example, while Dr. Adams in his opinion describes Diorio as suffering from
“inappropriate affect,” R. at 845, his treatment notes describe Diorio’s affect as “appropriate,”
see R. at 402, 405, 409, 415, 420, 437. Dr. Adams also provides little explanation, stating only
that his opinion is supported by his “observations and client’s self report.” R. at 845; see
Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (noting a “treating
physician’s opinion . . . may be afforded more or less weight depending upon the extent to which
supporting explanations are provided” (internal quotation marks and citation omitted)); Colavito
v. Apfel, 75 F. Supp. 2d 385, 398 (E.D. Pa. 1999) (“[I]t is well established that an A.L.J. may
reject conclusions of a treating physician’s opinion which is brief and conclusory in form with
little in the way of clinical findings to support its conclusion.”). Moreover, there is scant
evidence anywhere in the record—including Dr. Adams’s notes, the opinion of non-examining
consultant Dr. Henry Weeks, and the mental assessment provided by Diorio’s primary care
provider, Dr. Jennifer Keah—that supports any marked limitations relating to the work-related
mental functions of understanding, memory, concentration, or adaption, and the ALJ
accommodated for any supported mental limitations in the RFC. Thus, the ALJ had substantial
evidence to assign minimal weight to Dr. Adams’s opinion. See Ortiz v. Colvin, No. 13-4774,
2014 WL 4375641, at *3 (E.D. Pa. Sept. 3, 2014) (finding ALJ did not err by disregarding a
psychiatric treating source opinion where claimant’s “mental health records reflect a person who,
despite considerable depression and anxiety, had fairly normal functioning”); Ceriani v.
Barnhart, No. 06-1762, 2007 WL 1599728, at *7 (E.D. Pa. May 31, 2007) (finding ALJ’s
decision not to give controlling weight to a treating source’s opinion was supported by
substantial evidence in part because the doctor’s treatment notations of anxiety, depression, and
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panic attacks did “not support a finding that [p]laintiff [was] completely incapacitated by her
mental limitations from performing any gainful activity”).
Diorio further argues the ALJ improperly substituted her lay opinion for that of Diorio’s
treating doctor by interpreting treatment notes. The ALJ, however, was permitted to analyze the
treatment notes and assessments of Diorio’s doctors in evaluating Dr. Adams’s opinion. See
Torres v. Barnhart, 139 F. App’x 411, 414 (3d Cir. 2005) (rejecting claimant’s argument “that
the ALJ inappropriately evaluated the mental treating sources by employing her ‘lay’
interpretation of the psychotherapy treatment notes” where ALJ “reviewed and analyzed” the
notes and concluded the notes, in combination with other evidence in the record, showed
improvement in claimant’s psychiatric condition).
As to his alleged physical limitations, Diorio argues the ALJ erred by according little
weight to the opinion of Dr. Keah, his primary care provider. Specifically, Diorio argues the
ALJ failed to give appropriate weight to Dr. Keah’s finding that Diorio could only occasionally
use his right dominant upper extremity for reaching, handling, fingering, and feeling—a critical
issue, Diorio argues, because all three jobs identified by the VE require the ability to engage in at
least frequent reaching and handling. As the Magistrate Judge found, however, substantial
evidence supports the ALJ’s decision to give little weight to Dr. Keah’s opinion regarding
Diorio’s physical limitations. See R&R 14-15. Although Diorio presented with neck and
shoulder pain at times, his medical records lack any diagnoses associated with right upper
extremity limitations. See R. at 244-45, 330, 335, 349, 367, 516; Phillips v. Barnhart, 91 F.
App’x 775, 780 (3d Cir. 2004) (dismissing claimant’s argument that the ALJ failed to properly
consider the opinion of his treating physician where the physician’s notes notably failed to
mention “any specific work-related limitations” and “his clinical findings [did] not support the
existence of any disabling limitations”).
In any event, although the three jobs identified require either frequent or constant
reaching and handling, it is not evident those jobs require such use of both upper extremities.
According to the Dictionary of Occupational Titles (DOT), the break lining coating job requires
an employee to “[s]tart[] machine and conveyor and feed[] brake lining into machine to obtain
sample for approval by supervisor[;] [f]eed[] brake linings into machine and observe[] coating
for conformance to specifications as linings are discharged onto conveyor[; and p]lace[] linings
with coating defects aside for disposal.” DOT 574.685-010. The document preparer job requires
an employee to “[p]repare documents, such as brochures, pamphlets, and catalogs, for
microfilming, using paper cutter, photocopying machine, rubber stamps, and other work
devices.” Id. 249.587-018. The addresser job requires an employee to “[a]ddress[] by hand or
typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing,” and
possibly entails sorting mail. Id. 209.587-010. Nothing in these descriptions suggests reaching
and handling with both upper extremities is required. See Brown v. Colvin, No. 15-323, 2016
WL 6821877, at *3 (E.D. Pa. Nov. 17, 2016) (finding that “even though the DOT states the three
jobs identified by the VE . . . require constant or frequent reaching, . . . [plaintiff] may be able to
perform those jobs by reaching with his left hand with occasional assistance from his right
hand”); Diehl v. Barnhart, 357 F. Supp. 2d 804, 822 (E.D. Pa. 2005) (“[T]he fact that a job
requires reaching, handling, or fingering does not necessarily mean that [p]laintiff is incapable of
performing that job since in some cases he may be able to satisfy the requirements of the job by
reaching, handling, or fingering with his left hand with occasional assistance from his right
3

2. The Report and Recommendation (Document 10) is APPROVED and ADOPTED;
3. Diorio’s Request for Review (Document 7) is DENIED; and
4. Judgment is entered affirming the decision of the Commissioner of Social Security.
The Clerk of Court is directed to mark this case CLOSED.
BY THE COURT:
/s/ Juan R. Sánchez.
Juan R. Sánchez, J.
hand.”). Furthermore, Dr. Keah opined Diorio was able to “sort, handle, [and] use paper/files”
without any limitation. R. at 540.
Diorio next argues the ALJ and Magistrate Judge improperly “assumed that a positive
response to [medications and injections] is equivalent to the ability to perform even sedentary
work on a sustained basis.” Objs. 4. This argument lacks merit as it was entirely proper for the
ALJ to consider Diorio’s pain management treatment in evaluating his functional capacity to do
work. See Seney v. Comm’r Soc. Sec., 585 F. App’x 805, 809 (3d Cir. 2014) (finding ALJ’s
decision to not credit claimant’s allegations of disabling pain and other symptoms was supported
by substantial evidence where ALJ considered the treatment needed for claimant’s condition and
the “positive results from that treatment, the medication that she was taking, and its side effects”
(citing 20 C.F.R. § 404.1529(c)(3)(iv)-(v))); Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990)
(finding a treating physician’s report that claimant’s headaches responded to medication, as well
as claimant’s lack of credibility, constituted substantial evidence supporting ALJ’s rejection of
claimant’s claim of disabling pain).
Finally, Diorio argues the ALJ erred in rejecting the following environmental limitations
imposed by Dr. Keah:
Cold weather aggravates symptoms. Unprotected heights require balance. Pt
cannot sit in same position for prolonged period of time to operate motor vehicle,
heavy machinery. Vibrations can aggravate pain. Patient should not operate
machinery or drive on sedating pain medications.
Although the ALJ found “no basis for the environmental limitations assessed,” he excluded from
Diorio’s potential work the climbing of ladders, ropes, and scaffolding. Moreover, none of the
three identified jobs—break lining coater, document preparer, or addresser—require the
operation of a motor vehicle or heavy machinery. Thus, even if the ALJ had an insufficient basis
to reject those limitations, any error was harmless. See Moody v. Barnhart, 114 F. App’x 495,
502 (3d Cir. 2004) (rejecting claimant’s argument that ALJ failed to account for certain
environmental limitations where “those limitations do not negate the substantial evidence that
[claimant] can perform sedentary jobs”); Ortiz, 2014 WL 4375641, at *2 (finding ALJ’s failure
to address or include environmental limitations harmless where “none of the jobs identified by
the [vocational expert] required exposure to environmental hazards”).
Because the Magistrate Judge properly concluded the ALJ’s decision was supported by
substantial evidence, Diorio’s objections to the R&R are overruled.
4