RAMOS ORTIZ v. COLVIN

Filing 19

ORDER THAT PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PLAINTIFF'S REQUEST FOR REVIEW OF THE DECISION OF THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION IS DENIED; AND JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT. SIGNED BY HONORABLE JOHN R. PADOVA ON 9/3/14. 9/4/14 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARMEN IVETTE RAMOS ORTIZ
v.
CAROLYN
W.
COLVIN,
Commissioner of Social Security

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CIVIL ACTION

NO. 13-4774

ORDER-MEMORANDUM
AND NOW, this 3rd

day of September, 2014, upon consideration of Plaintiff=s

Complaint requesting review of the decision of the Commissioner of the Social Security
Administration (Docket No. 1), all documents filed in connection therewith, the Report and
Recommendation of United States Magistrate Judge Jacob P. Hart (Docket No. 15), Plaintiff’s
Objections thereto, and Defendant’s Reply to Plaintiff’s Objections, IT IS HEREBY
ORDERED as follows:
1.

Plaintiff’s Objections to the Report and Recommendation are OVERRULED;

2.

The Report and Recommendation is APPROVED and ADOPTED;

3.

Plaintiff’s Request for Review of the decision of the Commissioner of the Social
Security Administration is DENIED; and

4.

JUDGMENT is ENTERED in favor of the Defendant.

On December 5, 2011, the Administrative Law Judge (“ALJ”) denied Plaintiff’s request
for Disability Insurance Benefits and Supplemental Security Income pursuant to Titles II and
XVI of the Social Security Act. (R. 21-30.) The ALJ found that Plaintiff suffered from the

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severe impairments of lumbar degenerative disc disease, chronic back pain, asthma, obesity,
status post-gastric bypass surgery, and depression. (R. 23.) He determined that Plaintiff’s
anemia, sleep apnea, left wrist injury, and ovarian cysts were not severe. (R. 24.) He concluded
that none of her impairments, individually or in combination, met or medically equaled one of
the Commissioner’s listed impairments. (R. 24-25.) The ALJ found that Plaintiff retained the
residual functional capacity (“RFC”) for unskilled sedentary work, with a sit/stand option. (R.
25.) Relying on the testimony of a vocational expert (“VE”), the ALJ concluded that Plaintiff
could perform her prior work as a letter scanner (R. 28) or perform other work such as a final
assembler. (R. 29.) He thus concluded that she was not disabled under the Act.
Plaintiff thereafter sought review in this Court asserting that the ALJ erred in (1)
excluding from his RFC assessment the limitations in postural changes and environmental
conditions identified by Drs. Ferran and Kamerar, as well as limitations based on Plaintiff’s
mental health impairment, asthma, abdominal pain, back pain, sleep apnea, obesity, and
Plaintiff’s lack of fluency in English; (2) failing to give appropriate weight to Plaintiff’s treating
psychiatrist, Dr. Martinez; (3) his negative credibility determination because it was not supported
by substantial evidence; and (4) his reliance on VE testimony in determining the RFC. Pursuant
to Local Rule 72.1(d)(1)(C), we referred the case to Magistrate Judge Hart for a Report and
Recommendation.
The Magistrate Judge recommended that, although the ALJ may have erred in failing to
include Dr. Ferran’s postural limitations in the RFC assessment, that error was harmless since the
VE testified that, even if those limitations were included, Plaintiff’s RFC would not change.
(Report and Recommendation at 4 (citing R. 77).) The Magistrate Judge likewise noted that,
although the ALJ failed to include any environmental limitation as suggested by Dr. Kamerar,

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that error was also harmless since no job identified as suitable for the Plaintiff required exposure
to the sort of environmental hazards that this records review source identified. (Id. at 5.) The
Magistrate Judge rejected Plaintiff’s argument that the ALJ ignored Dr. Martinez’s treating
source opinion on her overall functioning, finding that Dr. Martinez — who treated Plaintiff only
for mental health issues — was not in a position to evaluate her physical limitations. He also
found that the ALJ was supported by substantial evidence in rejecting Dr. Martinez’s mental
health limitations, including a GAF score notation of 40, because they were unsupported by the
contemporaneous treatment notes, which reflected little to no mental health limitation. (Report
and Recommendation at 6-7 (citing R. 497, 534-8, 55-578, 628-9, 633).) Accordingly, the
Magistrate Judge also found that the ALJ was supported by substantial evidence in failing to
include limitations in her RFC concerning her asthma, obesity, mental impairment, back pain,
abdominal pain, or sleep apnea. (Report and Recommendation at 8-10.) He also found no error
in the ALJ’s failing to accommodate her inability to speak fluent English, since at least some of
the jobs identified as within her RFC did not require English in excess of Plaintiff’s abilities.
(Id. at 10.) Finally, he found no error in the ALJ’s negative credibility finding since her
subjective complaints of pain were not supported by objective medical evidence. (Id. at 11-12.)
Judicial review of the Commissioner’s final decision is limited, and the ALJ’s findings of
fact will not be disturbed if they are supported by substantial evidence. Brownawell v. Comm’r
of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (citing 42 U.S.C. § 405(g)); see also 42 U.S.C. §
405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Substantial evidence is defined as “‘more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Brownawell, 554 F.3d at 355 (quoting Reefer v. Barnhart, 326 F.3d 376,

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379 (3d Cir. 2003), and citing Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir.
2008)). The ALJ’s legal conclusions are subject to plenary review. Hagans v. Comm’r of Soc.
Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing Schaudeck v. Comm’r of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999)). We review de novo those portions of a Magistrate Judge’s report
and recommendation to which objections are made. 28 U.S.C. § 636(b)(1). We may accept,
reject, or modify, in whole or in part, the Magistrate Judge’s findings or recommendations. Id.
Plaintiff first objects to the Magistrate Judge’s failure to find error in the ALJ’s rejection
of Dr. Ferran’s treating source opinions on postural limitations.

As a general matter, the

opinions of a social security claimant’s “‘treating physician are entitled to substantial and at
times even controlling weight.’” Johnson, 529 F.3d at 202 (alteration in original) (quoting
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001)). “However, the treating source’s opinion
is entitled to controlling weight only when it is ‘well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in [the claimant’s] case record.” Id. (alteration in original) (quoting Fargnoli, 247 F.3d at 43).
Here, Dr. Ferran’s report supported postural limitations. However, as noted, the Magistrate
Judge reasoned that the ALJ’s failure to include them was harmless since the VE testified that,
even if those limitations were included, Plaintiff’s RFC would not change. Nothing in Plaintiff’s
objection impugns this reasoning. We thus conclude on de novo review that the ALJ did not err
by disregarding this recommendation, and we overrule Plaintiff’s objection to the Magistrate
Judge’s Report and Recommendation with respect to this issue.
On de novo review, we also overrule Plaintiff’s objections to the Magistrate Judge’s
rejection of her claim of error concerning environmental limitations. While the Magistrate Judge
noted the ALJ’s failure to include environmental limitations, he concluded the failure was

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harmless since none of the jobs identified by the VE required exposure to environmental hazards.
Plaintiff objects that the Magistrate Judge’s reasoning was improper since the ALJ did not
address the issue at all; thus the “precise impact of environmental conditions on the numbers of
jobs would be important information to ascertain at a hearing.” (Pl. Obj. at 3.) Because none of
the jobs identified by the VE contained environmental limitations, Plaintiff makes no cogent
argument that a hearing was necessary to determine whether environmental conditions impacted
the numbers of jobs in the national economy that the ALJ determined the Plaintiff had the RFC
to perform.

We also note that no treating source determined that Plaintiff required

environmental limitations. That aspect of the RFC evidence was only mentioned by a records
review source, whose opinion was not entitled to controlling weight.
Plaintiff next objects to the Magistrate Judge’s finding that the ALJ was supported by
substantial evidence when he failed to give treating psychiatric opinion evidence controlling
weight. As noted, the Magistrate Judge held that the ALJ was supported by substantial evidence
in rejecting Dr. Martinez’s mental health limitations, including a GAF score notation of 40,
because they were unsupported by treatment notes, which reflected little to no mental health
limitation. On de novo review, we also conclude that the ALJ was supported by substantial
evidence in disregarding this treating source evidence.

Dr. Martinez’s opinions were not

supported by contemporaneous treatment notes; indeed the limitations Dr. Martinez
recommended are inconsistent with the other substantial evidence in the record. As noted by
Defendant, just seven days before Dr. Martinez authored her first mental RFC opinion, she
recorded in her treatment notes that Plaintiff well-groomed; exhibited cooperative behavior and
attitude; her speech was normal; she had calm motor activity; her mood was depressed and her
affect blunted, but she maintained good eye contact; she had coherent thought processes and had

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no deficits in thought content; she was oriented as to person, place, and time; she had no
perceptual disturbances, average intelligence, fair attention/concentration, average fund of
knowledge, and limited insight but fair judgment. (R. 581.) One month later, the assessment
was essentially the same. (R. 583.) Around the time of the second mental RFC opinion, Dr.
Martinez’s treatment notes show similar entries. (R. 628-33.) We agree with the Magistrate
Judge’s recommendation that, other than the low GAF scores, “the mental health records reflect
a person who, despite considerable depression and anxiety, had fairly normal functioning.”
(Report and Recommendation at 7.) We thus conclude on de novo review that the ALJ did not
err by disregarding this treating source opinion, and we overrule Plaintiff’s objection to the
Magistrate Judge’s Report and Recommendation with respect to this issue.
Plaintiff next objects to the Magistrate Judge’s recommendation that the ALJ did not err
in failing to accommodate her inability to speak fluent English. While the Magistrate Judge
reasoned that the failure was harmless since at least some of the jobs identified as within her
RFC did not require language skills in excess of Plaintiff’s abilities, she argues the Magistrate
Judge “cannot review what is not specifically stated in the record,” and faults the ALJ for not
“pay[ing] attention to the precise question of what jobs are available and in what numbers.” (Pl.
Obj. at 6 (citing Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003).) On de novo review, we
conclude that the ALJ was supported by substantial evidence in concluding that a substantial
numbers of jobs exist in the national economy that Plaintiff has the RFC to perform. For
example, the ALJ relied on VE testimony that 2,680 final assembler jobs existed in
Pennsylvania, and 283,000 final assembler jobs existed nationally. Because the Dictionary of
Occupational

Titles

indicates

that

this

job

requires

little

language

skill,

see

http://www.occupationalinfo.org/appendxc_1.html#III (stating that such a level one job requires

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only a limited vocabulary of 2,500 words, a reading rate of 95-120 words per minute, and the
ability to print and speak simple sentences), and the record indicates that Plaintiff understood a
“little bit” of English, used a computer configured in English, and handwrote in English a
document submitted as part of her claim (R. 39, 47, 65, 280-87), we conclude on de novo review
that the ALJ did not err in the RFC determination, and we overrule Plaintiff’s objection to the
Magistrate Judge’s Report and Recommendation with respect to this issue.
Finally, we reject Plaintiff’s objection that the Magistrate Judge erred in presuming “that
the hypothetical questions posed at the time of the hearing adequately represents Ms. Ortiz’s
condition over the relevant time period.” (Pl. Obj. at 7 (emphasis omitted).) She argues that the
ALJ erred in failing to consider the full impact of her limitations over the entire period beginning
with her claimed onset date on the alleged ground that, as a result of the significant weight loss
she experienced after her gastric bypass surgery, her limitations had lessened by the time she had
her hearing before the ALJ. On de novo review, we find this assertion is unsupported in the
record. First, the ALJ held that Plaintiff was not disabled within the meaning of the Act “from
October 25, 2008 [her claimed onset date], through the date of this decision.” (R. 21, 29.)
Second, we find on de novo review that nothing in the record supports the assertion that the ALJ
only considered her limitations as of the date of the hearing, rather than the full record. Rather,
the RFC determination was based on the findings that her alleged postural limitation,
environmental limitations, mental limitations, pain, asthma, and sleep apnea were not as
disabling as she subjectively claimed, or were adequately accommodated. (R. 25-28.) Having
determined that each of these findings was supported by substantial evidence, we overrule
Plaintiff’s objection to the Magistrate Judge’s Report and Recommendation with respect to this
issue as well.

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For the above stated reasons, we overrule Plaintiff’s objection to Magistrate Judge Hart’s
recommendations, we approve and adopt the Report and Recommendation, and enter judgment
in favor of Defendant.

BY THE COURT:
/s/ John R. Padova
John R. Padova, J.

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