LADD v. ASTRUE
ORDER THAT THE REPORT AND RECOMMENDATION IS HEREBY APPROVED AND ADOPTED. PLAINTIFF'S REQUEST FOR REVIEW IS DENIED, JUDGMENT IS ENTERED IN THIS MATTER IN FAVOR OF DEFENDANT AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/16/2014. 5/16/2014 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL GALE LADD,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
O R D E R
AND NOW, this 16th day of May, 2014, after careful and
independent consideration of the Report and Recommendation1 of United
States Magistrate Judge Lynne A. Sitarski (ECF No. 15) and
Plaintiff’s Objections thereto (ECF No. 16), it is hereby ORDERED as
Plaintiff’s objections to the Report and
Recommendation are OVERRULED;2
Plaintiff Michael Gale Ladd (“Plaintiff”) filed this action,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner of the Social Security Administration
(“Defendant”) denying his application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of
the Social Security Act.
This matter was submitted to Magistrate Judge Sitarski for a
Report and Recommendation (“R&R”), which was returned on August 27, 2014.
In the R&R, Magistrate Judge Sitarski recommends that Plaintiff’s request
for review be denied and judgment be entered in favor of Defendant.
Plaintiff has filed nine objections to the R&R.
1. Weight Accorded to Various Medical Opinions by ALJ (Objections 1-6)
Plaintiff raises six specific objections to the Magistrate Judge’s
findings on the issue of weight given to medical opinions. See Pl.’s
Objections at 1-6.
Plaintiff first objects with Magistrate Judge Sitarskis’s finding
that substantial evidence supports the ALJ’s conclusion that the assessment
of Plaintiff’s therapist, Mindy Biddle, of Plaintiff’s level of impairment,
was “unsupported by medical findings and inconsistent with the record as a
whole.” Pl’s Objections at 1. This objection essentially argues that some
medical evidence, such as the prescription of Propanolol by Plaintiff’s
treating psychiatrist, Dr. Letitia Covaci, supports Ms. Biddle’s assessment
of Plaintiff’s mental impairment, and further that other information on the
record about Plaintiff’s socialization patterns, therapy, treatment, and
symptoms was consistent with Ms. Biddle’s assessment.
This objection misses the mark, as the proper standard of review of
the ALJ’s decision on this point is to whether substantial evidence was
present on the record to support the decision to discount Ms. Biddle’s
opinion, not whether evidence also existed to support a contrary decision.
When evaluating non-medical opinion evidence, such as the mental assessment
made by Plaintiff’s therapist, an ALJ may consider whether the opinion is
consistent with the record as a whole and whether the opinion is supported
by medical evidence. See Stover v. Colvin, Civ. No. 12-531, 2013 WL 2446469
*3, (W.D. Pa. June 5, 2013) (“The standard of review . . . is not whether
there is evidence to establish Plaintiff’s position, but, rather, 
whether there is substantial evidence to support the ALJ’s finding.”)
(citing Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989)).
The ALJ’s conclusion that Biddle’s assessment was inconsistent with
the record as a whole was supported by substantial evidence. Biddle
characterized Plaintiff’s mental condition as extremely limited, with no
useful ability to function, whereas the record before the ALJ also
indicated that Plaintiff was able to do semi-skilled work for the past
several years and that he was responding well to treatment. See ALJ
Decision 9. Further, Ms. Biddle’s own session notes indicated, contrary to
her June 10, 2010 assessment, that Plaintiff was engaging in regular social
activities with family, and that Plaintiff reported that he was “feeling
better,” “doing well,” “enjoying experiencing more feelings,” and was
“improving his social skills.” Compare R. 417-419, with R. 346, 350, 356,
360, 380, 384. Accordingly, the Court finds that substantial evidence on
the record justified the ALJ’s finding that Ms. Biddle’s assessment was
inconsistent with other evidence on the record. Therefore, Plaintiff’s
first objection is overruled.
Plaintiff’s second objection is that Magistrate Judge Sitarski
mischaracterized Ms. Biddle’s treatment notes as indicating that
“[Plaintiff’s] social anxiety symptoms were less than extreme” when the
statements cited in the R&R were actually relative statements indicating
improvement, not objective statements indicating that his condition was no
longer severe. See Pl.’s Objections at 2; see also R&R at 8-9. Plaintiff’s
argument—that statements indicating improvement do not necessarily prove
that a condition has been cured—makes logical sense. However, Plaintiff’s
objection does not reach the ultimate issue of the case, whether the ALJ’s
rejection of Ms. Biddle’s assessment due to inconsistencies with other
evidence on the record, including independent opinions of treating medical
sources, was supported by substantial evidence. As noted supra, the Court
finds that the ALJ’s finding of inconsistency between Ms. Biddle’s
assessment and the larger record was supported by substantial evidence.
Accordingly, Plaintiff’s second objection is overruled.
Plaintiff’s third objection is that both Magistrate Judge Sitarski
and the ALJ erroneously relied on evidence of Plaintiff’s Global Assessment
of Functioning (“GAF”) rating in the treatment records of Plaintiff’s
psychiatrist, Dr. Covaci, as evidence of inconsistency between Ms. Biddle’s
assessment and the record as a whole. See Pl.’s Objections at 4; see also
R&R at 9.
Plaintiff cites to a Social Security Administration (“SSA”)
Administrative Message 13066, dated July 26, 2013, which advises SSA
adjudicators, including ALJs, “that the American Psychiatric Association
(‘APA’), in its recently published fifth edition of the Diagnostic and
Statistical Manual [of Mental Disorders] (DSM-5) no longer includes GAF
rating for assessment of mental disorders, and explains several concerns
about [the use of] GAF scores.” Pl.’s Objections at 4; see also Pl.’s
Reply, Ex. 1, SSA Instruction on Appropriate Use of GAF Scores (“AM13066”), July 22, 2013, ECF No. 17-1. This instruction indicates that ALJs
may use GAF ratings as opinion evidence when assessing disability claims
involving mental disorders, but that a “GAF score is never dispositive of
impairment severity,” and thus an ALJ should not “give controlling weight
to a GAF from a treating source unless it is well supported and not
inconsistent with other evidence.” AM-13066 at 5.
Plaintiff’s claim that the ALJ’s reliance on GAF ratings was contrary
to SSA policy and therefore that the ALJ’ decision was not supported by
substantial evidence, fails for the following reasons:
First, Plaintiff cites to a statement of SSA policy that took effect
nearly three years after the ALJ rendered a decision in this case. To the
extent that AM-13066 changed the weight that an ALJ may accord to GAF
evidence, Plaintiff has provided no evidence that the 2013 policy
retroactively applied to the ALJ’s 2010 decision. To the contrary, changes
in the SSA regulations and corresponding policies have been held to apply
only in cases decided after the enactment of the changed regulation and/or
policy. See, e.g., Boone v. Barnhart, 353 F.3d 203, 208 n.14 (3d Cir.
Second, the ALJ’s finding of an inconsistency between Ms. Biddle’s
assessment and other evidence on the record, including Plaintiff’s GAF
scores, is supported by substantial evidence even in light of AM-13066. The
ALJ determined that Ms. Biddle’s assessment of Plaintiff’s mental condition
was inconsistent with not only GAF ratings (which reflected an improvement
in Plaintiff’s condition over time,) but also qualitative evidence from a
treating medical source, Dr. Covaci, that Plaintiff “was feeling better,”
and that his social anxiety and paranoia, while still present, were
improving with therapy and medication. See R. 395 (Covaci Evaluation Notes,
May 6, 2010), R. 397 (Covaci Evaluation Notes, Mar. 4, 2010); R. 399
(Covaci Evaluation Notes, Jan. 7, 2010).
Accordingly, Plaintiff’s third objection is overruled.
Plaintiff’s fourth objection also targets the ALJ’s rejection of Ms.
Biddle’s assessment based on perceived inconsistencies between it and the
record as a whole. Specifically, Plaintiff asserts that Biddle’s assessment
of Plaintiff’s social impairment as “extreme,” based Biddle’s observations
that Plaintiff had “experienced auditory and visual hallucinations in [her
office’s] waiting room,” was not inconsistent with Plaintiff’s other
medical records. See Pl.’s Objections at 5-6. Rather, Plaintiff suggests
this assessment was consistent with Plaintiff’s diagnosis, by his
psychiatrist, of “an ongoing condition that could result in
hallucinations.” Id. at 6.
Magistrate Judge Sitarski’s R&R concludes that substantial evidence
on the record supported the ALJ’s finding that Ms. Biddle’s assessment that
“minimal progress” had been made to address Plaintiff’s hallucinations, R.
418, was inconsistent with medical evidence on the record, including both
Ms. Biddle and Dr. Covaci’s treatment notes stating that Plaintiff
“responded well with treatment and his condition was improving,” ALJ
Plaintiff’s objection again fails to address the probative issue.
Regardless of whether or not Plaintiff’s diagnosis during this period was
for a condition that could result in hallucinations, Biddle’s description
of “minimal” improvement conflicted with other medical evidence which
indicated that Plaintiff’s condition had been improving and that he had
responded well to treatment. See R. 399 (Dr. Covaci, Jan. 4, 2010) (stating
that Plaintiff “denies having problems with hallucinations,”) R. 397 (Dr.
Covaci, Mar. 4, 2010) (stating that Plaintiff reported that he was not
“seeing anything” or “hear[ing] voices.”) Substantial evidence on the
administrative record to conflicted with Ms. Biddle’s description of
“minimal progress.” Accordingly, Plaintiff’s fourth objection is overruled.
Plaintiff also objects to the R&R’s finding that the ALJ’s decision
to accord “great weight” to non-examining state physician Dr. Bongiovani’s
assessment of Plaintiff was supported by substantial evidence. See Pl.’s
Objections at 6. Specifically, Plaintiff argues is that the record
indicated that Plaintiff’s condition deteriorated in the period between Dr.
Bongiovani’s consultation and the administrative hearing, and therefore
that Dr. Bongiovani’s assessment of Plaintiff’s condition was inconsistent
with the record as a whole at the time that the ALJ rendered his decision.
See id. at 6-7. Additionally, Plaintiff argues that Dr. Bongiovani’s
assessment were not consistent with contemporaneous notes made by Dr.
Covaci. Id. at 7-8.
An ALJ may consider the evidence of “non-examining” sources,
including state agency medical consultants, as opinion evidence. See 404
C.F.R. §1527(e). In determining the weight of such opinion evidence, an ALJ
must consider the six factors provided in § 1527(c): (1) examining
relationship, (2) treatment relationship, (3) supportability, (4)
consistency, (5) specialization, and (6) other relevant factors. An ALJ
must provide a record of his analysis and explanation for the weight
accorded to evidence. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir.
District Courts within the Third Circuit have on several occasions
recognized that the “social security regulations provide progressively more
rigorous tests for weighing opinions as the ties between the source of the
opinion and the individual [claimant] grow weaker.” Gonzalez v. Astrue, 537
F. Supp. 2d 644, 663 (D. Del. Feb. 28, 2008); see also Longo v. Astrue,
Civ. No. 10-116, 2011 WL 2580503, *7 (W.D. Pa. June 28, 2011) (“The opinion
of state agency reviewing physicians are weighted by stricter standards
than treating sources.”). These district courts have indicated that an ALJ,
when determining the weight to accord to a non-examining medical opinion,
must look closely at “whether, and how well, the opinion takes into account
and explains the medical evidence of record, including the opinions of
treating physicians.” Colgan v. Astrue, Civ. No. 08-970, 2009 WL 3183087,
at * 8 (W.D. Pa., Sept. 30, 2009) (quoting Gonzalez, 537 F. Supp. 2d at
663); see also Ortiz-Torres v. Callahan, Civ. No. 96-6535, 1997 WL 431016
*7 (E.D. Pa. July 15, 1996). Where a non-examining physician’s opinion is
rendered by “check[ing] a box or fill[ing] in a blank” without the
accompaniment of “through written reports,” such opinion evidence has been
deemed “suspect.” See Ortiz-Torres, 1997 WL 431016, at *7 (quoting Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)).
Dr. Bongiovani’s assessment of Plaintiff’s condition, including a
form Psychiatric Review, R. 294-311, and a written case analysis, R. 31213, was prepared on April 14, 2009. This assessment made reference to
Plaintiff’s medical records, see R. 412, and was consistent with the notes
of Plaintiff’s treating physicians. For instance, Dr. Bongiovani’s
assessment of Plaintiff as “relaxed and talkative with affect somewhat
restricted,” R. 312, was consistent with Dr. Covaci’s January 22, 2009 note
that Plaintiff “appears more relaxed and more talkative . . . [and] his
affect is still somewhat restricted,” R. 330. Likewise, in both Dr.
Bongiovani’s assessment and Dr. Covaci’s January 22, 2009 progress notes,
Plaintiff was recorded as denying hallucinations. Compare R. 312 (Dr.
Bongiovani) with R. 330 (Dr. Covaci). Dr. Bongiovani and Dr. Covaci also
both noted that Plaintiff’s cognitive function, memory, judgment, and
insight were good. Compare R. 312 (Dr. Bongiovani) with R. 415 (Dr.
Covaci). Likewise, Dr. Bongiovani’s assessment of Plaintiff’s anxiety
condition—that he struggled with social anxiety but that he was improving
with therapy and medication—was consistent with Dr. Covaci’s progress
notes. Compare R. 312 (Dr. Bongiovani) with R. 415 (Dr. Covaci, March 27,
2009) (“still struggling with some anxiety, especially in social
situations”), R. 330 (Dr. Covaci, Jan. 22, 2009) (“feeling slightly better
on present combination of psychotropic medications . . . still acknowledged
having a difficult time around people).
On this record, it is evident that there was substantial evidence to
support a finding that Dr. Bongiovani’s assessment was consistent with the
treatment notes of Plaintiff’s psychiatrist, Dr. Covaci. The ALJ was
justified in giving Dr. Bongiovani’s assessment great weight, as this
assessment was consistent with the other significant medical evidence on
the record, and because it included not only a “check the box” form, but a
written assessment of Plaintiff’s condition.
Plaintiff also argues that the ALJ erred in according Dr.
Bongiovani’s assessment great weight because it was prepared more than a
year before the ALJ’s decision and thus could not take into account
Plaintiff’s medical records in the intervening period. There is case law
supporting the point that a non-treating medical assessment should not be
accorded great weight where it fails to consider medical evidence that was
available at the time that the assessment was prepared. See Longo, 2011 WL
2580503, at *7 (rejecting an ALJ’s decision to give great weight to a nonexamining medical consultant, where the consultant apparently did not
consider a substantial medical records relating to one of claimant’s two
medical conditions); Moffatt v. Astrue, Civ. No. 10-226, 2010 WL 3896444 *6
(W.D. Pa., Sept. 30, 2010) (“An assessment provided by a non-examining
medical consultant is of limited probative value where the record indicates
that the consultant was unaware of counter-veiling medical evidence.”).
However, this case law does not support the further proposition that an
assessment is rendered less weighty because it does not consider medical
records that did not exist at the time the assessment was made.
While intervening changes in a claimant’s medical condition could
diminish the value of a medical assessment over time, the relevant question
would then become whether the assessment’s description of a claimant’s
subsequent symptoms and conditions remained accurate.
Plaintiff argues that such a change in his medical condition did
occur during this period. He points to the fact that on August 6, 2009, Dr.
Covaci recorded that Plaintiff was again was suffering from hallucinations.
See R. 411 (August 6, 2009). However, the record shows that while
Plaintiff’s hallucinations did resurface for a period after Dr.
Bongiovani’s assessment, this symptom was treated in September of 2009 by
an adjustment to Plaintiff’s medication and did not return. See R. 409
(“[Plaintiff] admits that since a higher dose of Geodon, he has had no
auditory or visual hallucinations.”).
In the instant case, the fact that Dr. Bongiovani’s 2009 assessment
was largely consistent with Dr. Covaci’s most recent description of
Plaintiff’s condition weighed in favor of the ALJ relying on Dr.
For the foregoing reasons, Plaintiff’s fifth objection is overruled.
Plaintiff’s sixth objection asserts that Dr. Bongiovani’s assessment
that “[Plaintiff] is anxious around others and would be distracted by
others and unable to concentrate around others or persist without symptoms
during a workweek,” R. 313, was consistent with Ms. Biddle’s assessment of
“extreme impairment,” R. 418, which the ALJ discounted. Plaintiff also
asserts that Dr. Bongiovani’s description of Plaintiff’s social anxiety is
inconsistent with Dr. Bongiovani’s assessment that “limitations in would be
less than substantial in these areas.” R. 313. For both these reasons,
Plaintiff asserts, the ALJ erred in according Dr. Bongiovani’s assessment
great weight. See Objections at 8-9. Plaintiff’s argument fails on both
First, Plaintiff incorrectly suggests that Dr. Bongiovani’s
assessment of Plaintiff’s social anxiety was the same as Ms. Biddle’s
assessment. The ALJ discounted Ms. Biddle’s final assessment as
inconsistent with the greater record, including Ms. Biddle’s own treatment
notes, Dr. Covaci’s notes, and Dr. Bongiovani’s assessment, because it was
unique in asserting that Plaintiff’s condition was “extreme.” R. 418. By
contrast, Dr. Bongiovani’s assessment, while indicating that Plaintiff
still suffered anxiety around others which “lowered his ability to
concentrate and persist at tasks,” R. 412, suggested that this anxiety
presented “less than substantial limitations,” R. 313. This assessment is
inconsistent with Biddle’s assessment of “extreme” impairment based on
Plaintiff’s social anxiety, which the ALJ discounted, and is consistent
with other evidence on the record.
Second, Dr. Bongiovani’s conclusion that Plaintiff continued to
suffer social anxiety, but that his limitations in this area were less than
severe, did not necessitate a finding by the ALJ that the assessment was
internally inconsistent, as both observed conditions could be true.
For these reasons, Plaintiff’s sixth objection is overruled.
2. The ALJ’s Determination of Plaintiff’s Credibility (Objections 7-8)
Plaintiff’s seventh objection asserts that the ALJ’s determination of
Plaintiff’s credibility was inconsistent with the applicable legal
requirements and was not supported by substantial evidence. Plaintiff
claims that the proper legal standard for determining credibility of a
claimant includes consideration of seven factors listed at 20 C.F.R.
404.1529(c)(3) as well as “objective medical evidence.” See Objections at
9. Plaintiff also argues that Social Security Ruling 96-7p (“SSR 96-7p”)
provides that consideration of these factors is mandatory. See Objections
Plaintiff correctly notes that the cited policy interpretation
provides that an ALJ give “specific reasons” for his finding as to a
claimant’s credibility, “supported by evidence on the case record” and
stated in “sufficiently specific” terms. See Social Security Ruling 96-7p,
1996 WL 374186 (July 2, 1996). However, neither this policy statement, nor
§ 404.1529(c)(3) (the governing regulation), mandates a specific finding as
to each of the seven factors listed in § 404.1529(c)(3)(i) – (vi). The
regulatory framework provides instead that an ALJ must consider “objective
medical evidence,” as well as the claimant’s “own statements” and “other
relevant evidence in the case record.” SSR 96-7p.
The ALJ here considered Plaintiff’s testimony about his impairments,
but noted that he found Plaintiff’s statements about the intensity,
persistence, and limiting effects of his symptoms to be inconsistent with
the record of his past reported behavior and symptoms, particularly how
recently he had experienced hallucinations, his comfort with crowds outside
the home, his comfort with family gatherings, and his difficulty with
concentration and finishing tasks. See id. R. 17. Where a claimant’s
testimony about his activities of daily living and his prior symptoms is
inconsistent with other evidence on the record, especially with notes from
the claimant’s treating physician, the ALJ is justified in finding the
claimant less than fully credible. See Burns v. Barnhart, 312 F.3d 113,
129-30 (3d Cir. 2002). The ALJ complied with the relevant regulatory
requirements by explaining that inconsistencies between Plaintiff’s
testimony and the other medical evidence on the record were the reason for
the finding of only partial credibility. For this reason, Plaintiff’s
objection on this point is overruled.
Plaintiff’s eighth objection, that “substantial evidence does not
support a determination that [Plaintiff] made so much progress with
treatment that his symptoms were consistent with the ALJ’s RFC assessment,”
appears in his Objections to the R&R as a heading without any supporting
paragraphs. See Objections 10. Instead, Plaintiff merely cites back to the
section of his brief containing his consideration of how the §
404.1529(c)(3)(i) – (vi) factors should have weighed in support of
Plaintiff’s credibility. In addition, Plaintiff cites the discussion in his
second objection that treatment notes made by Ms. Biddle did not contradict
her assessment that Plaintiff was still severely impaired due to his social
anxiety. See Objections 2.
Plaintiff fails to state a distinct new argument, instead merely
referencing points that appear elsewhere in his objections, and which were
considered and rejected separately. For this reason, Plaintiff’s eighth
objection is overruled.
3. The ALJ’s finding of Plaintiff’s schizoaffective disorder as a nonsevere impairment (Objection 9)
Plaintiff’s ninth objection is that the ALJ’s decision to find
Plaintiff’s schizoaffective disorder “non-severe,” as it “appear[ed] to be
stable with medication,” R. 14, was not supported by substantial evidence
on the record. See Objections 10.
The ALJ categorized Plaintiff’s other mental impairments, major
depressive disorder and anxiety disorder, as severe, noting Plaintiff’s
history of symptoms, medication, therapy notes and medical treatment
history. See R. 13. However, the ALJ found that Plaintiff’s schizoaffective
The Report and Recommendation is APPROVED and
Plaintiff’s request for review is DENIED;
Judgment is entered in this matter in favor of
The Clerk of Court shall mark this case CLOSED.
AND IT IS SO ORDERED.
/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
disorder was not a severe impairment in light of the ongoing diagnoses of
Dr. Covaci, his treating psychiatrist. Dr. Covaci’s notes indicated that
while Defendant had been diagnosed with schizoaffective disorder, bipolar
type, in June of 2008, and again in January and April of 2010, that in May
of 2010 the diagnosis was “R/O [‘rule out’] schizoaffective disorder.” See
R. 325 (April 1, 2010), R. 396 (May 6, 2010), at R. 399 (January 7, 2010),
at R. 408 (June 27, 2008). These treatment notes also indicated that
Plaintiff stopped suffering from hallucinations after an adjustment to his
medication. See R. 328 (April 1, 2010) (“Client has had some visual and
auditory hallucinations . . . his medication was adjusted and he reports
that he is not having any more hallucinations at this time.”).
Plaintiff argues that the use of the “R/O” diagnosis by Dr. Covaci
signaled that the treating physician was “trying to find the appropriate
diagnosis for [Plaintiff’s] psychotic symptoms,” not that the diagnosis was
being eliminated from consideration. Objections 10. However, this argument
goes to the merits of Plaintiff’s disability claim, not to whether the
ALJ’s categorization of the condition as “not severe” was supported by
substantial evidence. The ALJ determined Plaintiff’s schizoaffective
disorder to be non-severe based on several pieces of evidence on the
record, including the fluctuating diagnosis made by Dr. Covaci, as well as
treatment records indicating that the primary symptom of this disorder—
Plaintiff’s hallucinations—appeared to be in control after an adjustment in
his medication in the fall of 2009. See R. 14. The Court finds that
substantial evidence supported the ALJ’s categorization of Plaintiff’s
schizoaffective disorder as “not severe.” Plaintiff’s ninth objection is
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?