NOCE v. COLVIN

Filing 24

ORDER THAT PLAINTIFF'S OBJECTIONS 22 ARE OVERRULED, ETC. THE COURT APPROVES AND ADOPTS MAGISTRATE JUDGE SITARSKI'S REPORT AND RECOMMENDATION 21 ; PLAINTIFF'S REQUEST FOR REVIEW 15 IS DENIED; AND, THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 09/26/2019. 10/1/2019 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARIA NOCE
v.
ANDREW M. SAUL,
COMMISSIONER OF SOCIAL SECURITY

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CIVIL ACTION
NO. 16-6209

O R D E R
AND NOW, this 26th day of September, 2019, it is
hereby ORDERED that:
(1)

Plaintiff’s objections (ECF No. 22) are

OVERRULED; 1

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The Court has carefully considered Plaintiff’s
objections to Magistrate Judge Lynne A. Sitarski’s Report and
Recommendation (”R&R”). There is no need to repeat the history
or facts of the case as Judge Sitarski’s R&R adequately relays
that information.
The Court concludes that Judge Sitarski has correctly
and sufficiently addressed Plaintiff’s arguments, and, thus,
adopts her R&R. Nonetheless, reviewing the issues raised in the
objections de novo, Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,
150 F.3d 245, 250 (3d Cir. 1998), the Court reaches the
following additional conclusions:
1.
Plaintiff first argues that the ALJ failed to
reasonably explain her RFC assessment. The Court disagrees
because the ALJ sufficiently demonstrated how the RFC assessment
is supported by substantial evidence.
Plaintiff contends that while the ALJ provided a
summary of the evidence, she did not provide reasoning for the
specific components in the RFC. Judge Sitarski sufficiently
addressed this argument. The Court further notes that the record
belies Plaintiff’s assessment. The ALJ’s decision includes a
very lengthy and comprehensive review of the evidence which

includes within it reasons why various evidence was accepted and
to what extent. A reading of the ALJ’s opinion and the
description of how she weighed the evidence makes clear how she
formulated the RFC assessment.
Plaintiff also asserts that Judge Sitarski should not
have placed any weight on the fact that there is no objective
evidence of a right wrist impairment until at least five years
after Plaintiff’s alleged disability onset date. The ALJ made
similar comments regarding various impairments. The Court
disagrees with Plaintiff that this line of thought has no value.
These inquiries go to the credibility of Plaintiff’s assertions
regarding the severity of her impairments, and could reasonably
impact the RFC assessment.
Plaintiff contends that the ALJ erred in concluding
that the significant range of daily activities she could perform
indicated that she could also perform sustained work. However,
activities of daily living were but one of many factors
considered by the ALJ. Moreover, activities of daily living are
a proper inquiry in determining a plaintiff’s limitations. See
20 C.F.R. §§ 404.1529 & 416.929. The ALJ did not err in
considering them.
Plaintiff also asserts that the ALJ failed to
reasonably explain her RFC assessment of Plaintiff’s ability to
use her hands. Plaintiff notes various medical findings that she
argues support further restrictions than those provided by the
ALJ. The Court concludes that the ALJ’s analysis is supported by
substantial evidence as meticulously detailed in her decision,
even though there may be some evidence that might be seen as
supportive of additional handling and fingering restrictions.
See Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)
(providing that substantial evidence “does not mean a large or
considerable amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion”). The ALJ properly explained why she chose
the particular hand-oriented RFC limitations. The Court also
rejects Plaintiff’s argument that Judge Sitarski must not have
read her reply brief.
2.
Next, Plaintiff argues that the ALJ failed to
properly assess the opinion of consultative examiner, Merrill
2

Mirman, D.O. Judge Sitarski sufficiently addressed this
argument. Again, while Plaintiff notes evidence that could
possibly support additional sitting/walking/standing
restrictions, the ALJ’s assessment of Dr. Mirman is clearly
supported by substantial evidence as described in her decision.
Similarly, as laid out in detail by the ALJ, her decision to
discount Dr. Mirman’s limitations on Plaintiff’s use of her
hands because they were inconsistent with other evidence, is
also supported by substantial evidence. In addition, and as
mentioned above, the ALJ did not err in considering, as one
factor, Plaintiff’s ability to perform activities of daily
living that impacted her ability to use her hands. See 20 C.F.R.
§§ 404.1529 & 416.929.
3.
Finally, Plaintiff argues that the ALJ failed to
provide a reasonable explanation for the weight she gave to
Plaintiff’s testimony. Again, Judge Sitarski adequately
addressed this argument in the R&R. Specifically, Plaintiff
suggests that the ALJ relied too heavily on her view of the
medical evidence, erroneously considered Plaintiff’s knee
injections to be conservative treatment, and erroneously relied
on Plaintiff’s repeated failure to follow up on recommended
surgeries. An ALJ may reject a claimant’s testimony as
incredible if she specifically explains her rationale. Schaudeck
v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999).
The Court concludes that the ALJ more than adequately explained
her reasons for discounting the credibility of Plaintiff’s
testimony, including that it was inconsistent with a wide
variety of other evidence. Moreover, the ALJ must consider the
objective medical evidence when weighing credibility, see 20
C.F.R. §§ 404.1529 & 416.929, and may consider failures to
follow through with a prescribed treatment plan. See Vega v.
Comm’r of Soc. Sec., 358 F. App’x 372, 375 (3d Cir. 2009).
Contrary to Plaintiff’s argument, multiple failures to have
recommended procedures could indicate that Plaintiff’s
impairments were not as limiting or as severe as she alleged
since those recommendations are based in part on Plaintiff’s
subjective complaints. The Court reaches no decision on whether
Plaintiff’s knee injections qualify as conservative treatment.
However, the Court concludes that even without this finding,
there is ample evidence to support the ALJ’s credibility
determination.
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(2)

The Court APPROVES and ADOPTS Magistrate Judge

Lynne A. Sitarski’s Report and Recommendation (ECF No. 21);
(3)

Plaintiff’s request for review (ECF No. 15) is

DENIED; and
(4)

The Clerk of Court shall mark this case as

CLOSED.
AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

In that the ALJ did not commit a reversible error and
her decision is supported by substantial evidence, Plaintiff’s
objections must be overruled, the R&R adopted, and the ALJ’s
decision affirmed.
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