PALMISANO v. SAUL

Filing 25

MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 4/27/21. 4/27/21 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALEXANDER PALMISANO,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security
Defendant.

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CIVIL ACTION

No. 20-cv-00330-RAL

MEMORANDUM OPINION
RICHARD A. LLORET
U.S. MAGISTRATE JUDGE

April 27, 2021

Alexander Palmisano (“Mr. Palmisano” or “Plaintiff”) was denied Social Security
benefits by the decision of an Administrative Law Judge (“ALJ”). Mr. Palmisano
contends that the ALJ's unfavorable decision was reached in error. Pl. Br. at 6–17 (Doc.
No. 22). Specifically, Mr. Palmisano argues that the ALJ erred by (1) erroneously
assigning little weight to the opinions of a consultative psychologist and a consultative
physician regarding Mr. Palmisano’s disabilities and (2) failing to incorporate all of Mr.
Palmisano’s “credibly established limitations” in her hypothetical question to the
vocational expert. Id. The Commissioner of Social Security (“Commissioner”) responds
that the ALJ's decision was supported by substantial evidence. Def. Br. at 7–15 (Doc.
No. 23).
After careful review, I agree with the Commissioner and find that the ALJ's
decision is supported by substantial evidence. For the reasons set forth below, I deny
Mr. Palmisano’s request for review and affirm the final decision of the Commissioner.

PROCEDURAL HISTORY
On February 17, 2017, Mr. Palmisano filed a claim for supplemental security
income (“SSI”) under Title XVI of the Social Security Act. Pl. Br. at 2. His application
was initially denied on November 3, 2017. Id. On November 16, 2017, Mr. Palmisano
timely requested a hearing. Id. On October 26, 2018, an Administrative Law Judge
(“ALJ”) held the hearing. R. 28–47. On January 11, 2019, the ALJ issued a decision
denying Mr. Palmisano benefits. R. 10–27. On February 26, 2019, Mr. Palmisano
requested that the Appeals Council review the ALJ’s decision. R. 116–19. The Appeals
Council subsequently denied Mr. Palmisano’s request for review. R. 1–6. This appeal
follows.
FACTUAL BACKGROUND
Alexander August Palmisano, Jr. was born in May of 1962. R. 34. He has a high
school equivalent education (GED), and no past relevant work. R. 23, 35. Mr. Palmisano
suffers from a combination of impairments including disorders of the back, a history of
status-post traumatic brain injury with neurocognitive disorder and headaches,
depression, an anxiety disorder, and post-traumatic stress disorder (PTSD), all of which
the ALJ found to be severe. R. 15. A consultative psychologist and consultative physician
provided opinions regarding the nature and severity of Mr. Palmisano’s impairments,
which Mr. Palmisano argues would compel a conclusion that he is disabled if the ALJ
found the opinions to be credible. Pl. Br. at 3. However, the ALJ assigned little weight to
the opinions of these consultative physicians and issued an opinion finding that Mr.
Palmisano was not disabled. Id.; R. 22. In reaching this decision, the ALJ made the

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following findings of fact and conclusions of law pursuant to a five-step sequential
evaluation. 1
At step one, the ALJ concluded that Mr. Palmisano had not engaged in
substantial gainful activity (“SGA”) since the application date of February 16, 2017. R.
15.
At step two, the ALJ determined that Mr. Palmisano had the following severe
impairments: disorders of the back, a history of status-post traumatic brain injury with
neurocognitive disorder and headaches, depression, an anxiety disorder, and posttraumatic stress disorder (PTSD). R. 15. The ALJ found Mr. Palmisano’s allergic rhinitis,
insomnia, sebaceous cyst, lung nodules, hemorrhoids, benign prostatic hyperplasia, and
asthma to be non-severe impairments. Id. Furthermore, the ALJ determined that Mr.
Palmisano’s claims of bipolar affective disorder, a reading disorder, and a knee disorder
were not medically determinable impairments. Id.
At step three, the ALJ compared Mr. Palmisano's severe impairments to those
contained in the “Listings.” 2 The ALJ concluded that Mr. Palmisano's impairments,
singly or in combination, did not meet or equal the criteria of any of the Listings. R. 15–
17. Specifically, the ALJ concluded that none of Mr. Palmisano’s impairments met the
An ALJ evaluates each case using a sequential process until a finding of “disabled” or “not disabled” is
reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful
activity; (2) has a severe “medically determinable” physical or mental impairment or combination of
impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed
in the social security regulations and mandate a finding of disability; (4) has the residual functional
capacity to perform the requirements of his or her past relevant work, if any; and (5) is able to perform
any other work in the national economy, taking into consideration his or her residual functional capacity,
age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v).

1

The regulations contain a series of “Listings” that describe symptomology related to various
impairments. See 20 C.F.R. Pt. 404, Subpt. P., App. 1. If a claimant's documented symptoms meet or
equal one of the impairments, “the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert,
482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ
determines whether the impairments assessed at step two preclude the claimant from performing any
relevant work he or she may have performed in the past. Id.

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criteria of Listings §§ 1.04 (relating to spinal disorders), 12.02 (relating to
neurocognitive disorders), 12.04 (relating to depressive disorders), 12.06 (relating to
anxiety disorders), or 12.15 (relating to trauma disorders).
At step four, the ALJ assessed Mr. Palmisano's residual functional capacity
(“RFC”), or “the most [Mr. Palmisano] can still do despite [his] limitations.” 20 C.F.R.
§§ 404.1545, 416.945. After a review of the objective medical evidence and subjective
medical opinion evidence, the ALJ concluded that Mr. Palmisano retained the capability
to perform “medium” 3 work, subject to certain limitations. R. 18–23. These restrictions
included:
He must avoid more than frequent exposure to vibration and
hazards, including moving machinery and unprotected
heights. He is limited to unskilled work with routine,
repetitive tasks performed in a low stress environment
(defined as no frequent changes in the work setting) and
occasional interaction with the public and supervisors.
R. 18.
At step five, the ALJ identified three representative occupations that exist in
significant numbers in the national economy that Mr. Palmisano could perform
considering his age, education, work experience, and RFC. R. 23–24. These occupations
were dishwasher, drier attendant, and cleaner. R. 24.
Based on the above, the ALJ ultimately found that Mr. Palmisano was not
disabled. R. 24.

“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also
do sedentary and light work.” 20 CFR § 416.967(c).

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DISCUSSION
A.

Standard of Review

My review of the ALJ's decision is deferential; I am bound by her findings of fact
to the extent those findings are supported by substantial evidence in the record. Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing to Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999)). Accordingly, my review of the ALJ's findings of fact is limited to
determining whether substantial evidence supports the ALJ's decision. Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing to 42 U.S.C. § 405(g)). If the ALJ's
decision is supported by substantial evidence, her disability determination must be
upheld. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see also 42 U.S.C. §
405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 390
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Evidence is
substantial where it consists of “more than a mere scintilla but may be less than a
preponderance.” Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). I must rely on the
record developed during the administrative proceedings along with the pleadings in
making my determination. See 42 U.S.C. § 405(g). I may not re-weigh the evidence or
substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec.,
667 F.3d 356, 359 (3d Cir. 2011). I must also defer to the ALJ's evaluation of evidence,
assessment of the witnesses, and reconciliation of conflicting expert opinions. Diaz v.
Comm'r of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009).
The ALJ's legal conclusions and application of legal principles are subject to
“plenary review.” See Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). I must
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determine whether the ALJ applied the proper legal standards in reaching the decision.
See Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). Accordingly, I can overturn an
ALJ's decision based on an incorrect application of a legal standard even where I find
that the decision is supported by substantial evidence. Payton v. Barnhart, 416 F. Supp.
2d 385, 387 (E.D. Pa. 2006) (Katz, J.) (citing Friedberg v. Schweiker, 721 F.2d 445, 447
(3d Cir. 1983)).
B.

The ALJ did not err in assigning little weight to the opinions of
Dr. Patrone, Psy.D. and Dr. Zibelman, M.D.

Mr. Palmisano's first and second claims challenge the ALJ's step four
analysis. See Pl. Br. at 6–14. Specifically, Plaintiff alleges that the ALJ erroneously
assigned little weight to the medical opinions of consultative psychologist Christopher
Patrone, Psy.D., and consultative physician Mark Zibelman, M.D. in determining Mr.
Palmisano’s RFC. Id. Further, Plaintiff argues that, had the ALJ “properly” credited
these opinions, Mr. Palmisano “would have been found disabled.” Id. at 8.
An ALJ is not bound by the opinions of a non-treating physician in making a
disability determination, as these opinions are afforded less weight than those of a
treating physician. Mansfield v. Colvin, No. CV 16-2003, 2017 WL 4227230, at *6 (E.D.
Pa. 2017) (Kearney, J.) (citing 20 C.F.R. §§ 404.1527, 416.927). A consultative examiner
is considered a non-treating medical source. Id.
1.

Dr. Patrone’s opinion was contradicted by the record.

The ALJ assigned little weight to the opinion of Dr. Patrone, reasoning “this
opinion is not supported by the examination findings of record, including repeated
examinations by family medical provider. . . It is also not supported by the course of
medical treatment, the lack of mental health treatment, or the claimant’s own activities

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of daily living.” R. 22. Specifically, the ALJ referenced numerous examinations during
which Mr. Palmisano’s neurological and psychiatric functioning were found to be
normal. R. 20 (citing 7F/5-8, 14-17; 11F/2, 11, 17, 20). In addition to subsequent
examinations which tended to show that Mr. Palmisano was not limited by his
impairments to the extent alleged, the ALJ noted that Mr. Palmisano has been receiving
the same dosage of Valium from his primary care physician (PCP) since April 2017, with
no modifications or additions to his mental health treatment since that time. R. 21.
The ALJ also relied on the opinion of State Agency psychological consultant Dr.
Gavazzi. Id. In his report, Dr. Gavazzi opined that Mr. Palmisano has “moderate
limitations in regards to his ability to interact with others; concentrate, persist, and
maintain pace; and adapt and manage oneself; and a mild limitation with regard to his
ability to understand, remember, or apply information.” Id. (citing 1A/6-7). In
particular, the ALJ found Dr. Gavazzi’s opinion as to Mr. Palmisano’s RFC to be
“consistent with the record as a whole,” as Dr. Gavazzi opined, “that the claimant has
moderate limitations in regards to the abilities to understand, remember, and carry out
detailed instructions; interact appropriately with the general public; accept instructions
and respond appropriately to criticism from supervisors; and respond appropriately to
changes in the work setting.” R. 22. (citing 1A/10-13). According to the ALJ, this
opinion, along with the medical records from Mr. Palmisano’s PCP and evidence
obtained at the hearing level, formed the basis of her assessment of Mr. Palmisano’s
RFC. Id.
Plaintiff alleges that the ALJ’s findings in these respects disregard Mr.
Palmisano’s course of medical treatment for his psychiatric impairments prior to April
of 2017 and are inconsistent with the findings of Dr. Patrone’s examination. See Pl. Br.
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at 9–11. However, I am not tasked with re-weighing the evidence considered by the ALJ,
but rather with determining whether the ALJ’s decision to assign little weight to Dr.
Patrone’s opinion was supported by “more than a mere scintilla” of evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). After considering the medical evidence from
Mr. Palmisano’s PCP, a State Agency psychological consultant (Dr. Gavazzi), and a
consultative psychologist (Dr. Patrone), the ALJ determined that all of Mr. Palmisano’s
mental health impairments are adequately accounted for by limiting him to “unskilled
work with routine and repetitive tasks performed in a low stress environment, and with
no more than occasional interaction with the public and supervisors.” R. 21.
Evidence obtained from a treating physician’s course of mental health treatment,
a State Agency psychological consultant, and Plaintiff’s testimony at the hearing stage
are all proper sources that the ALJ considered in evaluating Dr. Patrone’s opinion.
Accordingly, I find that the ALJ’s decision to assign little weight to the evidence of
consultative psychologist Dr. Patrone was supported by “substantial evidence.” Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing to Plummer v. Apfel, 186 F.3d 422, 427 (3d
Cir. 1999)).
2.

Dr. Zibelman’s opinion was contradicted by the record.

Plaintiff similarly complains of the ALJ’s decision to assign little weight to the
opinion of consultative physician Dr. Zibelman, M.D. See Pl. Br. at 12–14. Specifically,
Mr. Palmisano claims that the ALJ erroneously rejected Dr. Zibelman’s opinion while
relying on her own “lay” opinion. Pl. Br. at 14. On review, Plaintiff’s claim fails because
the ALJ’s decision to discount Dr. Zibelman’s opinion was supported by substantial
evidence.

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In affording little weight to the opinion of Dr. Zibelman, the ALJ noted that the
additional limitations placed on Mr. Palmisano’s RFC by the consultative physician were
“not supported by the physical examination findings of record, including repeated
examinations by the claimant’s family medical provider. . . [t]hey are also not supported
by the course of medical treatment and radiology reports.” R. 22. Included in the
physical examinations of record was the examination by State Agency medical
consultant Carl Ritner, D.O., which the ALJ afforded “significant weight.” R. 21. Dr.
Ritner opined that the claimant is limited to “a reduced range of medium work.” Id.
(citing 1A/9-10). Dr. Ritner’s assessment of Mr. Palmisano’s RFC, along with the
physical examinations of record and other medical treatment reports, served as the
ALJ’s basis in determining Mr. Palmisano’s RFC. See id.
The ALJ cited to numerous pieces of evidence in the record to justify her
decision. In particular, she referred to objective tests which have shown “minimal to no
abnormalities” in Mr. Palmisano’s back, and considered that his “musculoskeletal
system was normal on physical examination with every visit with his [PCP].” R. 20
(citing 7F/5-8, 14-17; 11F/2, 11, 17, 20). The ALJ did, however, find that Mr. Palmisano
has some abnormalities including an antalgic gait, a reduced squat, and a positive
straight leg raise on the right at 50 degrees supine and 10 degrees sitting. Id. (citing
5F/4). Despite these impairments, Mr. Palmisano has remained on the same dosage of
Naproxen throughout the relevant period and has not treated with an orthopedist or
other specialist, received physical therapy, received injections, or sought surgical
intervention. R. 20–21.
In addition to the evidence cited by the ALJ from the course of treatment
prescribed to Mr. Palmisano by his PCP, the ALJ noted that Plaintiff is able to use public
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transportation—according to his own hearing testimony—and can ambulate reasonably
without the use of a cane despite his self-reported reliance on one. R. 21. Evidence for
these findings came from Plaintiff’s own testimony and numerous visits with his PCP.
Id. (citing 1F/105; 5F/1; 6F/3; 11F/2, 5, 8, 14, 17, 20). Furthermore, Dr. Zibelman’s own
examination indicated that Mr. Palmisano needed “no help getting changed for exam or
getting on and off exam table,” was able to “rise from chair without difficulty,” “can walk
on heels and toes without difficulty,” and “used no assistive device.” R. 575. Notably, on
the check-box portion of the opinion, Dr. Zibelman indicated that Mr. Palmisano does
not require the use of a cane to ambulate. R. 579. Accordingly, the ALJ found that all
limitations stemming from Mr. Palmisano’s severe back impairments “are accounted for
by the limitations in the RFC to medium work, along with additional postural and
environmental limitations.” Id.
Based on her detailed review of the objective medical evidence, the ALJ found Dr.
Zibelman's opinion unsupported by the record and afforded it limited weight. I find
substantial evidence supports the ALJ's findings relating to the weight given to medical
evidence and Dr. Zibelman’s opinion as a consultative examiner.
C.

The ALJ properly considered the vocational expert’s testimony.

Plaintiff argues that the ALJ erred in not affording more significant weight to Dr.
Zibelman's and Dr. Patrone’s opinions and, consequently, in not incorporating into the
hypothetical question these providers’ findings that Plaintiff experienced (1) a marked
limitation in his ability to interact with supervisors, and (2) a lumbosacral spine
disorder which limited him to no more than light exertion level. Pl. Br. at 15–16. I find
that the ALJ’s hypothetical incorporated all of Mr. Palmisano’s impairments. Therefore,
it was a proper hypothetical, and I will deny this claim for relief.
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The Third Circuit has found that “[w]hile the ALJ may proffer a variety of
assumptions to the expert, the vocational expert's testimony concerning a claimant's
ability to perform alternative employment may only be considered for purposes of
determining disability if the question accurately portrays the claimant's individual
physical and mental impairments.” Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)
(quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)). When posing a
hypothetical question to a vocational expert the ALJ’s question “must reflect all of a
claimant’s impairments.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)
(emphasis added).
Here, the ALJ posed three hypothetical questions. The first question was as
follows:
I’d like you to assume a hypothetical individual the same age
and education as the claimant. Assume this individual has no
past work. Assume this individual can perform medium
exertional work and is limited to unskilled work with
routine, repetitive tasks, with occasional interaction with the
public and supervisors. Would there be any unskilled
occupations available for such an individual?
R. 43. Based upon that hypothetical, the vocational expert found that Mr.
Palmisano could maintain jobs as a dishwasher, drier attendant, and machine feeder. Id.
The ALJ continued and asked a second hypothetical:
[N]ow I’d like you to again assume a hypothetical individual
the same age and education as the claimant with no past
work. Assume this individual again can perform a range of
medium exertional work. Assume the individual can
frequently balance, stoop, kneel, crouch, crawl and climb
ramps, stairs, ladders, ropes and scaffolds, must avoid more
than frequent exposure to vibration and hazards including
moving machinery and unprotected heights and again
assume the individual would be limited to unskilled work
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with routine, repetitive tasks and occasional interaction with
the public and supervisors.
R. 44. The vocational expert testified that Mr. Palmisano could still maintain jobs
as a drier attendant and dishwasher, but could not maintain a job as a machine feeder.
Id. The vocational expert further testified that Mr. Palmisano could maintain a job as a
cleaner. Id. The ALJ asked a third hypothetical, integrating all the limitations from her
second hypothetical but adding a few more restrictions:
Assume this individual has the same capacity as my last
hypothetical but is more limited in that the routine repetitive
tasks would be performed in a low stress environment and
I’m defining that as no frequent changes in the work setting.
Would there be any unskilled occupations available for such
an individual?
R. 45. The vocational expert testified that under these limitations, Mr. Palmisano
could still perform the three positions named in the second hypothetical—drier
attendant, dishwasher, and cleaner. Id.
I have already addressed the factual bases underlying this argument and found
that the ALJ properly assessed Plaintiff's mental and physical impairments based on
substantial evidence of record. The ALJ noted that Mr. Palmisano’s impairments
included that he must avoid frequent exposure to vibration and hazards (including
machinery and unprotected heights), that he was limited to unskilled work with routine,
repetitive tasks, and limited to occasional interaction with the public and supervisors. R.
18. The ALJ found these impairments were supported by specific evidence in the record.
The ALJ’s third hypothetical incorporated all of Mr. Palmisano’s impairments, and this
was the hypothetical the ALJ ultimately relied on. R. 24. Mr. Palmisano proffers two
additional impairments that the ALJ should have used in her hypothetical and cites the

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opinions of Doctors Zibelman and Patrone as support for these impairments. But, as
explained above, the ALJ’s decision to discount these providers’ opinions was supported
by substantial evidence. Therefore, there was no error in the ALJ’s decision to rely on
the third hypothetical given to the vocational expert because it adequately reflected all of
Mr. Palmisano’s impairments. See Nestor v. Colvin, No. 13-cv-01098, 2014 WL
4851641, at *6 (E.D. Pa. Sept. 30, 2014) (Gardner, J., approving and adopting report
and recommendation of Lloret, J.) (finding no error with a hypothetical to a vocational
expert when the ALJ found that plaintiff’s proposed limitations were unsupported by
the record); see also Strogish v. Astrue, No. 08cv757, 2008 WL 5263350, at *14 (W.D.
Pa. Dec. 16, 2008) (finding that an ALJ’s hypothetical was accurate when it did not
include plaintiff’s proposed limitations because the ALJ had appropriately discounted
these limitations). I will deny Mr. Palmisano’s claim regarding the ALJ’s hypothetical.
CONCLUSION
Based upon the discussion above, I find that Mr. Palmisano is not entitled to
relief on any of his claims. The ALJ’s weighing of consulting physicians’ opinions was
supported by substantial evidence and the ALJ asked an appropriate hypothetical to the
vocational expert. Therefore, I deny Mr. Palmisano’s request for review and affirm the
final decision of the Commissioner.
BY THE COURT:
s/Richard A. Lloret
RICHARD A. LLORET
U.S. Magistrate Judge

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