COLON-TORO v. BERRYHILL

Filing 20

ORDER THAT PLAINTIFF'S OBJECTIONS ARE OVERRULED, ETC. THE COURT APPROVES AND ADOPTS THE REPORT AND RECOMMENDATION OF U.S. MAGISTRAGE JUDGE MARYLIN HEFFLEY 16 ; PLAINTIFF'S REQUEST FOR REVIEW 12 IS DENIED; AND, THE CLERK OF COURT SHALL MARK THIS ACTION CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/17/2018. 12/17/2018 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HECTOR JOSE COLON-TORO
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY

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CIVIL ACTION
NO. 17-5001

O R D E R
AND NOW, this 17th day of December, 2018, it is hereby
ORDERED that:
(1)

Plaintiff’s objections (ECF No. 17) are

OVERRULED;1

The Court has carefully considered Hector Jose ColonToro’s objections to Magistrate Judge Marilyn Heffley’s Report
and Recommendation (”R&R”) and the Commissioner’s response to
the objections. There is no need to repeat the history or facts
of the case as Judge Heffley’s R&R adequately relays that
information.
1

The Court concludes that Judge Heffley has correctly
and sufficiently addressed Colon-Toro’s arguments, and, thus,
adopts her R&R. Nonetheless, the Court will address the two
issues raised in the objections de novo. Cont’l Cas. Co. v.
Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998).
a.
Colon-Toro first argues that the ALJ legally erred by
ignoring all of the medical opinions of record in formulating
his RFC in violation of Doak v. Heckler, 790 F.2d 26 (3d Cir.
1986). Colon-Toro contends that the ALJ was required to rely on
findings from the medical opinions in crafting his RFC and that
to do otherwise meant the RFC was impermissibly based on the
ALJ’s lay opinion.
The Court agrees with Judge Heffley’s analysis of
Doak. See R&R 15-17 & n.5. The RFC assessment is a duty the ALJ
must perform. 20 C.F.R. § 416.927(d)(2)-(3). To read Doak as

requiring the ALJ to rely on a doctor’s opinion for all
limitations would eviscerate this duty. See Casillas v. Astrue,
671 F. Supp. 2d 635, 655-56 (E.D. Pa. Oct. 8, 2009) (providing
that “Plaintiff’s argument, taken to its logical end, would
effectively transfer the responsibility of making a final RFC
determination from the ALJ to the medical expert”). As required,
the ALJ developed the RFC based on “all of the relevant medical
and other evidence” in the record. 20 C.F.R. § 416.945(a)(3).
Third Circuit law establishes that Doak cannot be read as
broadly as Colon-Toro argues. Titterington v. Barnhart, 174 F.
App’x 6, 11 (3d Cir. 2006) (“There is no legal requirement that
a physician have made the particular findings that an ALJ adopts
in the course of determining an RFC. Surveying the medical
evidence to craft an RFC is part of the ALJ’s duties.”); Mays v.
Barnhart, 78 F. App’x 808, 813 (3d Cir. 2003) (“[T]he ALJ is
responsible for making [an RFC] determination based on the
medical evidence, and he is not required to seek a separate
expert medical opinion.”); Cummings v. Colvin, 129 F. Supp. 3d
209, 214–15 (W.D. Pa. 2015) (providing that it is “misguided” to
rely on Doak “for the proposition that an ALJ must always base
his RFC on a medical opinion” and that “Doak does not prohibit
the ALJ from making an RFC assessment even if no doctor has
specifically made the same findings and even if the only medical
opinion in the record is to the contrary”) (internal quotation
marks omitted); Rodriguez v. Colvin, No. 14-cv-165, 2015 WL
3466128, at *1 (W.D. Pa. June 1, 2015) (same); see also Chandler
v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011) (“[T]he
ALJ is not precluded from reaching RFC determinations without
outside medical expert review of each fact incorporated into the
decision.”). Moreover, as described by Judge Heffley, the ALJ’s
RFC determination was supported by substantial evidence. Thus,
the Court overrules this objection.
b.
Second, Colon-Toro contends that the ALJ arbitrarily
calculated that he would be off-task 9% of the day. Colon-Toro
argues that the ALJ only picked this percentage because, at the
hearing, the VE testified that 9% was the maximum off-task time
permissible for gainful employment. Tr. 50-51. Colon-Toro claims
that the ALJ’s decision was an ends-based analysis that violated
his due process rights.
Judge Heffley fully discussed this issue as well, and
the Court adopts her reasoning. R&R 20-22. The ALJ concluded,
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(2)

The Court APPROVES and ADOPTS Magistrate Judge

Marylin Heffley’s Report and Recommendation (ECF No. 16);
(3)

Plaintiff’s request for review (ECF No. 12) is

DENIED; and

based on a valid analysis of the evidence, that Colon-Toro’s
mental impairments would not preclude him from working but would
cause some functional limitations. The ALJ chose to incorporate
these limitations into the RFC by, in part, representing them as
a percentage of time Colon-Toro’s impairments would take him
off-task. Based on the ALJ’s discussion and analysis of the
evidence, he clearly chose a percentage that allowed for
employment because he did not believe Colon-Toro was incapable
of work. In fact, the ALJ chose the most generous non-workpreclusive percentage possible. See Hall v. Comm’r of Soc. Sec.,
No. 15-cv-12904, 2016 WL 8115401, at *9 (E.D. Mich. July 25,
2016) (“Hall's argument that the record contains no evidence
that she would be off task exactly 9% of the work day, cuts
against her. Hall can point to no physician who imposed any
specific percentage of the work day that she would be unable to
work. Accordingly, the ALJ could easily have left this
restriction out entirely rather than giving Hall a generous
limitation of a 9% off-task limitation.”); Wennersten v. Colvin,
No. 12-cv-783, 2013 WL 4821474, at *3 (W.D. Wis. Sept. 10, 2013)
(“Although the [ALJ] did not explain why he chose five percent
instead of two percent or six percent, that lack of precision is
not a reason to reverse the decision. The important point is
that the [ALJ] did not find any evidence to show that
plaintiff’s ability to stay on task was impaired to the extent
that it would keep him from working.”) (internal citation
omitted). The Court finds that the ALJ’s decision to add an offtask percentage to the RFC that was not per se work-preclusive
was not arbitrary and was supported by substantial evidence.
Therefore, the Court overrules this objection.
In that the ALJ did not commit a reversible error and
his decision is supported by substantial evidence, Colon-Toro’s
objections must be overruled, the R&R adopted, and the ALJ’s
decision affirmed.
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(4)

The Clerk of Court shall mark this case as

CLOSED.
AND IT IS SO ORDERED.

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

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