GREEN v. COLVIN
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 10/31/16. 10/31/16 ENTERED AND COPIES EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
October 31, 2016
Before the Court are the Objections of Plaintiff Latonya Green to the Report and
Recommendation of United States Magistrate Judge Marilyn Heffley. (Doc. No. 17.) Plaintiff
had filed a Complaint against Defendant Carolyn W. Colvin, Commissioner of the Social
Security Administration, seeking review of her final decision on Plaintiff’s claims for disability
insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (the
“Act”) and for supplemental security income (“SSI”) under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-1383c. (Doc. No. 3.) The Court referred the matter to Magistrate Judge
Heffley for a Report and Recommendation (“R&R”). (Doc. No. 16.) On March 30, 2016,
Magistrate Judge Heffley filed the R&R, recommending that Plaintiff’s request for review be
denied. (Doc. No. 17.) On April 12, 2016, Plaintiff filed Objections to the R&R. (Doc. No. 18.)
On April 21, 2016, Defendant filed a Response to Plaintiff’s Objections. (Doc. No. 20.)
Pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the
portions of the R&R to which objections have been made. After independently reviewing the
Administrative Record (the “Record”) and for reasons that follow, the Court finds that Plaintiff ’s
Objections lack merit and will adopt and approve the Report and Recommendation in its entirety.
Factual and Procedural History
Plaintiff Latonya Green was born on August 24, 1964 and was forty-five years old on the
date her alleged disability began. (Administrative Record (“R.”) at 242.) Plaintiff has a twelfthgrade education and is able to read and write in English. (R. at 215.) Plaintiff previously worked
as an electronics assembler, a caregiver, a server, a telemarketer, and a packer. (R. at 16-17.)
On May 9, 2011, Plaintiff applied for DIB, alleging a disability beginning on March 24,
2010. (R. at 84.) Shortly thereafter, on May 17, 2011, she applied for SSI for the same
disability. (R. at 84-85.) Plaintiff alleges that she became unable to work due to depression,
anxiety, insomnia, suicidal thoughts, and pain in her shoulder, neck and back. (R. at 214.) Her
claim was denied, and she requested a hearing. (R. 97-106, 108.) An administrative hearing was
held on February 15, 2013 before Administrative Law Judge Patrick S. Cutter (the “ALJ”). (R.
at 31.) At the hearing, Plaintiff and an impartial vocational expert (“VE”) testified. (R. at 13.)
Plaintiff was represented by counsel. (R. at 7.)
Plaintiff testified at the hearing that she had spent approximately three years living off
benefits such as Food Assistance and Section 8 Housing. (R. at 38.) She alleges that she is
unable to work due to pain in her shoulder, wrist, neck, and back. (R. at 38-41.) She testified
that in 2004, she shattered her shoulder during a domestic dispute and has suffered from pain and
stiffness ever since. (R. at 38-39.) In addition, Plaintiff alleges that she is unable to work due to
her depression and anxiety, which have included suicidal thoughts. (R. at 41-47.) She explained
that she becomes paranoid and believes that others with whom she interacts at work are “trying
to do something to” her. (R. at 41.) As a result of her physical and mental ailments, Plaintiff
testified that she has held only temporary or short-term employment because she was unable to
perform her duties as expected by her employers. (R. at 47.)
The VE testified that Plaintiff’s past work was classified as “light” and, at times,
“medium” work. (R. at 49.) The VE explained that given Plaintiff’s profile, any work that she
could do should be performed either sitting or standing, and should not involve climbing ladders,
ropes, or scaffolding. (R. at 50.) Given Plaintiff’s anxiety when interacting with others, the VE
suggested positions that included little interpersonal interaction. (R. at 50-51.) The VE explained
that Plaintiff could perform “unskilled” work, which is defined as “work that requires little or no
judgment to do simple duties that can be learned on the job in 30 days or less with little
vocational preparation.” (R. at 50.) Assuming Plaintiff could perform light work, the VE
testified that Green could sustain a job as a bakery worker, or a conveyer line worker. (R. at 52.)
Assuming that Plaintiff could perform sedentary work, the VE explained that she could fulfill the
duties of a parking lot cashier, where she would have little interaction with others. (R. at 52.)
In addition to the testimony given by Plaintiff and the VE, the ALJ considered the
opinions of Robert Schultz, M.D., Philip Taylor, M.D., and Robert Justice, a Doctor of
Psychology (“Psy.D.”), among other medical evidence. The ALJ also considered the opinion of
James Harvin, Plaintiff’s brother. (R. at 22.) On April 8, 2013, the ALJ issued a decision
unfavorable to Plaintiff, finding that she was not disabled and could perform available work. (R.
at 10-25.) The ALJ made the following findings:
1. [Plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2013.
2. [Plaintiff] has not engaged in substantial gainful activity since March 24, 2010,
the amended alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments: right shoulder degenerative joint
disease, left wrist ganglion cyst, carpal tunnel syndrome (bilaterally), left knee
degenerative joint disease/patellar tendinitis, obesity, depression, generalized
anxiety disorder, [post-traumatic stress disorder] PTSD, schizoaffective disorder
(bipolar type), mixed personality disorder, impulse control disorder, reading
disorder, and mathematics disorder (20 C.F.R. 404.1520(c) and 416.920(c)).
4. [Plaintiff] does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, [the ALJ found] that [Plaintiff]
has the residual functional capacity to perform a range of light work as defined in
20 C.F.R. 404.1567(b) and 416.967(b) subject to the following limitations:
[Plaintiff] should perform work that can be done either sitting or standing. There
is a need to never climb ladders, ropes, or scaffolds. [Plaintiff] should only
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl. There
is a need to only occasionally reach overhead with both arms. There is a need to
only frequently perform gross manipulation bilaterally. [Plaintiff] should perform
unskilled work (defined as work that requires little or no judgment to be simple
duties that can be learned on the job in thirty days or less with little vocational
preparation). There is a moderate limitation (defined as more than slight
limitation but the function can still be performed on a consistent enough basis to
be satisfactory to the employer) in the ability to understand, remember, and carry
out detailed instructions, maintain attention or concentration, interact
appropriately with the public, supervisors, or coworkers, respond appropriately to
changes in the work setting, and respond appropriately to work pressures in the
usual work setting.
6. [Plaintiff] is unable to perform any past relevant work (20 C.F.R. 404.1565 and
7. [Plaintiff] was born on August 24, 1964 and was 45 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20 C.F.R.
404.1563 and 416.963).
8. [Plaintiff] has at least a high school education and is able to communicate in
English (20 C.F.R. 404.1564 and 416.964).
9. Transferability of job skills is material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that
[Plaintiff] is “not disabled,” whether or not [Plaintiff] has transferrable job skills
(See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. Considering [Plaintiff’s] age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy
that [Plaintiff] can perform (20 C.F.R. 404.1569, 404.1569(a), 416.969, and
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act,
from March 24, 2010, through the date of this decision (20 C.F.R.404.1520(g) and
(R. at 15-24.)
On October 9, 2014, the Appeals Council denied Green’s request for review. (R. at 1-5.)
On November 6, 2014, Plaintiff filed the Complaint in this Court, seeking judicial review of the
adverse decision of the ALJ. (Doc. No. 3.) The Court referred this matter to Magistrate Judge
Heffley for an R&R.
(Doc. No. 16.)
On March 30, 2016, Magistrate Judge Heffley
recommended that Plaintiff’s request for review be denied. (Doc. No. 17.)
On April 12, 2016, Plaintiff filed timely Objections to the R&R. (Doc. No. 18.) Plaintiff
raises the same Objections as those raised in the administrative appeal from the ALJ’s decision.
(Id.) Specifically, Plaintiff objects to Magistrate Judge Heffley’s findings that: (1) the ALJ
adequately explained his finding that she did not meet or equal any of the mental disorder
listings; (2) the ALJ did not err in his evaluation of the medical evidence; (3) the ALJ did not err
in his evaluation of lay evidence (i.e., Green’s credibility and her brother’s testimony); and (4)
the ALJ’s hypothetical question to the vocational expert (“VE”) adequately described Green’s
residual functional capacity (“RFC”). (Id.) The Objections are now ripe for a decision.
Relevant Social Security Administration Regulations
To prove a “disability,” a claimant must demonstrate “the inability to do any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 20 C.F.R. § 404.1505(a). The claimant has the burden of
proving the existence of a disability and can satisfy this burden by showing an inability to return
to former work. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). If she does so, the burden
shifts to the Commissioner to show that, given the claimant’s age, education, and work
experience, she is able to perform specific jobs that exist in the national economy. 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 416.920(f).
When evaluating a disability, the Social Security Administration uses a five-step process,
which is followed in a set order:
(i) At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your impairment(s). If
you do not have a severe medically determinable physical or mental impairment
that meets the duration requirement in § 404.1509, or a combination of
impairments that is severe and meets the duration requirement, we will find that
you are not disabled.
(iii) At the third step, we also consider the medical severity of your impairment(s).
If you have an impairment(s) that meets or equals one of our listings in appendix
1 of this subpart and meets the duration requirement, we will find that you are
(iv) At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work,
we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if you
can make an adjustment to other work. If you can make an adjustment to other
work, we will find that you are not disabled. If you cannot make an adjustment to
other work, we will find that you are disabled.
Id. § 404.1520(a)(4)(i)–(v).
STANDARD OF REVIEW
When reviewing a final decision of the Commissioner of Social Security, the Court must
determine whether the record demonstrates substantial evidence to support the Commissioner’s
42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “more than a mere
scintilla . . . [and includes] such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Cherry v. Barnhart, 29 F. App’x 898, 901 (3d Cir. 2002) (quoting
Richardson v. Perales, 402 U.S. 389, 407 (1971)). The Commissioner’s findings of fact, as long
as they are supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g).
Because the Commissioner adopts an ALJ’s decision as his findings of fact, the ALJ must
set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir.
1974); see also 42 U.S.C. § 405(b)(1). An ALJ must consider, evaluate, and refer to specific
medical evidence in the record in his decision. See Reefer v. Barnhart, 326 F.3d 376, 381-82 (3d
Cir. 2003). Based on this evidence, an ALJ determines whether a claimant proved a “disability,”
and the Commissioner adopts this decision as his finding of fact. Even if the record offers
evidence that undermines the ALJ’s conclusion, the Court will not overrule the decision of the
ALJ unless the ALJ’s finding is not supported by substantial evidence. Simmonds v. Heckler,
807 F.2d 54, 58 (3d Cir. 1986). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate,” not “a mere scintilla.” Burnett v. Comm’r of Soc. Sec. Admin.,
220 F.3d 112, 118 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d. Cir. 1999)).
Plaintiff has made four objections to the Magistrate Judge’s Report and Recommendation
(“R&R”), which recommends that the Court affirm the ALJ’s decision to deny Plaintiff’s claim
for DIB and SSI under Titles II and XVI of the Social Security Act. (Doc. No. 18.) First,
Plaintiff objects to the Magistrate Judge’s finding that the ALJ adequately explained his finding
that Plaintiff did not meet or equal the listing of impairments. (Id. at 1.) Second, Plaintiff
objects to the Magistrate Judge’s adoption of the ALJ’s evaluation of the medical evidence. (Id.
at 2.) Third, Plaintiff objects to the ALJ’s mischaracterization of her argument regarding lay
evidence and contends that the ALJ failed to identify any evidence that contradicts Plaintiff’s
subjective claims. (Id. at 4.) Fourth, Plaintiff objects to the Magistrate Judge’s finding that the
ALJ’s hypothetical question to the vocational expert was proper. (Id. at 6.) The Court will
discuss each Objection seriatim.1
A. The Magistrate Judge Properly Concluded that the ALJ Adequately
Explained His Finding that Plaintiff Did Not Meet or Equal Any of the
Mental Disorder Listings
Plaintiff does not meet or equal any of the mental disorder listings. Considering the
aforementioned five-step sequential evaluation process used to determine if a claimant has a
qualifying disability, the ALJ determined that Plaintiff did not meet the Listing of Impairments
criteria for Listing 12.02 (organic mental disorders), Listing 12.03 (schizophrenic, paranoid, and
other psychotic disorders), Listing 12.04 (affective disorders), Listing 12.06 (anxiety-related
disorders), or Listing 12.08 (personality disorders), and therefore found Plaintiff was not
disabled within the meaning of the Act. (R. at 16-18.)
Plaintiff’s first Objection is to the Magistrate Judge’s finding that “the ALJ adequately
explained his finding that [Plaintiff] did not meet or equal any of the mental disorders listings.”
(Doc. No. 17 at 5.) To meet the requirements of the Listings, Plaintiff must satisfy two of three
criteria—A, B, or C. (Doc. No. 17 at 5 (citing 20 C.F.R. § 404, subpt. P, app. 1 § 12.00).) The
ALJ found that Plaintiff satisfied the A criteria (R. at 15), and Plaintiff does not argue that she
has satisfied the C criteria (see Doc. No. 13, 2-8). Only the B criteria was at issue here. (Doc.
Nos. 17 at 5-6; 18 at 1.) As the Magistrate Judge explained, the B criteria for the alleged mental
In her Response to Plaintiff’s Objections, Defendant notes that Plaintiff’s objections
“essentially argue[ ] that the Magistrate Judge erred in not accepting the arguments made in
[Plaintiff’s] initial and reply briefs.” (Doc. No. 20 at 1.) Defendant states that “[b]ecause the
issues raised by Plaintiff in her objections have already been fully presented in this case, the
Commissioner relies upon Magistrate Judge Heffley’s well-reasoned R&R, as well as . . . the
Commissioner’s initial brief. . . ” in addition to addressing Plaintiff’s objections of step three
and step five findings. (Id.)
disorder Listings raised in this case—12.02-04, 12.06, and 12.08—are identical, and required a
finding of at least two of the following items:
(1) Marked restriction of activities of daily living; or
(2) Marked difficulties in maintaining social functioning; or
(3) Marked difficulties in maintaining concentration, persistence, or pace; or
(4) Repeated episodes of decompensation, each of extended duration.2
(Doc. No. 17 at 5-6 (citing 20 C.F.R. § 404, subpt. P, app. 1 §§ 12.02-04, 12.06, 12.08).) The
Magistrate Judge confirmed the ALJ’s findings that Plaintiff did not meet any two of the B
criteria requirements. (Id. at 6.)
The ALJ found that Plaintiff did not meet any of the B criteria. (R. at 17-18.) But the
Magistrate Judge noted that the evidence may support a finding for Plaintiff on the second B
criterion—Plaintiff’s level of social functioning. (Doc. No. 17 at 9, n.3.) Since the ALJ and
Magistrate Judge found that Plaintiff did not meet any of the other B criteria, the requirement of
meeting two criteria was not met in this case. The Magistrate Judge therefore upheld the
decision of the ALJ that Plaintiff does not meet or equal any of the mental disorder listings. (Id.
Plaintiff takes issue that the Magistrate Judge found it unnecessary to make an official
finding on the second item under the B criterion, which is marked difficulty in maintaining social
functioning. (Doc. No. 18 at 1.) The Magistrate Judge was correct to find, however, that it was
not necessary to resolve whether the ALJ’s decision as to the second B item was supported by
substantial evidence because Plaintiff could not satisfy any of the other B criteria, and the law
While Plaintiff did object to the ALJ’s finding of no experienced repeated episodes of
decompensation, each of extended duration to the Magistrate Judge, she presented no
evidence on appeal and did not raise it in her objections to the R&R. (See Doc. Nos. 17 at 12;
requires at least two criteria be met. (Doc. No. 17 at 5-6 (citing 20 C.F.R. § 404, subpt. P, app. 1
§§ 12.02-04, 12.06, 12.08).)
Moreover, Plaintiff unconvincingly argues that “[i]f the ALJ had correctly assessed the
severity of Plaintiff’s impairment of social functioning, he might also have recognized a greater
impairment of concentration, persistence, or pace.”
(Doc. No. 18 at 2.)
But, under the
deferential substantial evidence standard of review, a court cannot “impose [its] own factual
determinations.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Therefore,
so long as a court finds that substantial evidence3 supports the ALJ’s decision, it must affirm the
Commissioner’s final decision, even if the court would have “decided the factual inquiry
differently.” Gaddis v. Comm’r of Soc. Sec., 417 F. App’x 106, 107 n.3 (3d Cir. 2011). In this
case, the Magistrate Judge found that the ALJ’s decision was supported by substantial evidence
and for this reason, the Magistrate Judge’s decision on the B criteria was correct.
This Court agrees with the Magistrate Judge that the ALJ’s finding against Plaintiff on the
first and third B criteria were adequate, and since Plaintiff presented no evidence as to the fourth
item, she could not meet or equal the required two criteria of the mental disorder listings noted.
(See Doc. No. 17 at 12.) Therefore, Plaintiff’s objection is without merit and the Court agrees
with Magistrate Judge Heffley’s finding adopting the ALJ’s decision.
B. The Magistrate Judge Properly Concluded that the ALJ Properly
Evaluated the Medical Opinion Evidence Presented
Plaintiff objects to the ALJ’s determination on medical opinion evidence of Dr. Robert G.
Shultz, M.D., Dr. Philip Taylor, Ph.D., and Dr. Robert Justice, Psy.D.
“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate.’” Gaddis v. Comm’r of Soc. Sec., 417 F. App’x. 107, 107 n.3 (3d Cir. 2011) (citing
Plummer, 186 F.3d at 427).
Dr. Robert G. Shultz, M.D.
Dr. Shultz performed a one-time consultative examination of Plaintiff on August 2, 2011.
(R. at 379-85.) Plaintiff objects to the Magistrate Judge’s confirmation of the ALJ’s findings and
the conclusion that “Dr. Schultz did not base his opinion regarding [Plaintiff’s] ability to stand or
walk on any musculoskeletal limitation, but solely on what he described as ‘chronic fatigue’”
(Doc. No. 17 at 16 (citing R. at 379).) Plaintiff does not challenge the ALJ’s underlying
credibility finding in the Objections. Rather, she argues that Dr. Schultz’s medical opinion
cannot be discredited because he “did not merely listen to Plaintiff’s subjective complaints, he
examined her.” (Doc. No. 18 at 2.)
The Magistrate Judge correctly found that Dr. Schultz’s opinion was “undermined”
because “the ALJ had properly determined that Green’s claims regarding her physical and
psychological condition were not entirely credible.” (Doc. No. 17 at 16.) An ALJ may decide
not to credit a treating physician’s opinion when it is contradicted by other competent medical
evidence of record. Plummer, 186 F.3d at 429.
“[T]he mere memorialization of a claimant’s subjective statements in a medical
report does not elevate those statements to a medical opinion. An ALJ may
discredit a physician’s opinion on disability that was premised largely on the
claimant’s own accounts of her symptoms and limitations when the claimant’s
complaints are properly discounted.”
Morrison v. Barnhart, 78 F. App’x. 820, 824-25 (3d Cir. 2003) (citation omitted). The ALJ gave
Dr. Shultz’s opinion limited weight because “it [was] not consistent with the evidence of record .
. . [and] greatly relied upon the claimant’s subjective complaint . . . .” R. at 22. The Magistrate
Judge correctly concluded:
Although treating and examining physician opinions often deserve more weight
than the opinions of doctors who review records, see, e.g., 20 C.F.R. §
404.1527(d)(1)-(2), “the law is clear . . . that the opinion of a treating physician
does not bind the ALJ on the issue of functional capacity . . . .”
(Doc. No. 17 at 18 (citing Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).)
After careful review of the record, this Court agrees. The ALJ gave good reasons for
giving limited weight to Dr. Schultz’s medical opinion, and the Magistrate Judge properly found
the ALJ’s decision was supported by substantial evidence. (See Doc. No. 17 at 18.)
Dr. Philip Taylor, Ph.D.
Dr. Taylor is a consultant who conducted a one-time examination of Plaintiff and
determined that Plaintiff had a below average short-term memory and poor past memory. (Doc.
No. 17 at 18 (citing R. at 392-93).) Plaintiff argues that the Magistrate Judge “impl[ied] that
whenever an ALJ chooses to give more weight to the opinions of . . . a consultant than to those of
a treating or examining physician, that choice is essentially immune from scrutiny.” (Doc. No.
18 at 3.) Plaintiff’s argument is not persuasive and this Court disagrees with her interpretation of
The ALJ has the responsibility to “resolve conflicts in the evidence and to determine
credibility and the relative weights to be given to the evidence.” Dougherty v. Barnhart, No. 055383, 2006 WL 2433792, at *7 (E.D. Pa. Aug. 21, 2006) (citing Plummer, 422 F.3d at 429;
Plaintiff cites to Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000) as controlling case law without
further analysis or argument. (Doc. No. 18 at 2-4.) Morales does not support Plaintiff’s
argument regarding medical opinion testimony of Dr. Shultz, Dr. Taylor, or Dr. Justice. In
Morales, the Third Circuit found that the ALJ’s refusal to credit one of the plaintiff’s treating
physicians was erroneous because the ALJ’s refusal to credit the physician was not based on
objective medical evidence. Morales, 225 F.3d at 318. The Third Circuit found the ALJ’s
rejection was simply because the ALJ did not believe the treating physicians testimony at the
hearing. Id. Here, the ALJ’s decision to give limited weight to both Dr. Shultz and Dr. Taylor
was not “based solely on amorphous impressions, gleaned from the record and from his
evaluation of the claimant’s credibility.” Id. Rather, the ALJ in this case based his decision
on the record and on the reliance of the doctors on Plaintiff’s subjective complaints. (R. at
22.) Further, the ALJ gave significant weight to Dr. Justice because his results were consistent
with the cognitive tests, treating source records, and the clinical examination findings, and not
based on any amorphous impressions. (Id.)
Mason v. Shalala, 994 F.3d 1058, 1066 (3d Cir. 1993)). The Magistrate Judge was correct in
finding that the ALJ’s credibility determination is entitled to great deference and should not be
discarded lightly, given his opportunity to observe an individual’s demeanor. (Doc. No. 17 at
24.) (citing Dougherty, 2006 WL 2433792, at *7).) Applying these standards, the Magistrate
Judge thoroughly explained her rational and adoption of the ALJ’s decision regarding Dr. Philip
Taylor and the ALJ’s credibility findings, and this Court agrees with the Magistrate Judge’s
determination. (See Doc. No. 17 at 18-25.)
The Magistrate Judge correctly applied the deferential standard when reviewing the
credibility findings of the ALJ. While there are some cases that warrant reversal based on the
ALJ’s failure to develop a record or the ALJ’s personal amorphous impressions of medical
opinions, this case is not comparable. See e.g., Reefer v. Barnhart, 326 F.3d 376, 379-80 (3d Cir.
2003); Morales, 225 F.3d at 318. This Court adopts the Magistrate Judge’s decision finding the
ALJ’s decision to give limited weight to Dr. Taylor was supported by substantial evidence in the
record and thus is entitled to judicial deference. Plummer, 186 F.3d at 427.
Dr. Robert Justice, Psy.D.
Dr. Robert Justice was a consulting examiner who found that Plaintiff functioned at an
average intellectual level, including consideration of her memory and functional skills, and
opined that he believed Plaintiff to be capable of employment. (Doc. No. 17 at 20; R. at 537-39,
545.) Without argument or discussion, Plaintiff objects to the absence of any discussion in the
R&R of the “ALJ’s rejection of aspects of Dr. Justice’s report.” (Doc. No . 18 at 4.) Plaintiff
seemingly objects to the ALJ giving limited weight to Dr. Justice’s opinion that Plaintiff has
greater limitations than the ALJ found in Plaintiff’s residual functional capacity. (R. at 22.)
The Third Circuit has stated that an ALJ is not expected to discuss or make reference to
every piece of relevant evidence included in the record so long as he or she considers and
evaluates the medical evidence in the record. See Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir.
2001); Soto, 2005 WL 1367183, at *2. The record clearly reflects that the ALJ considered Dr.
Justice’s report and used it in his findings. (R. at 22.) See also Moraes v. Comm’r Soc. Sec., 645
F. App’x. 182, 186 (3d Cir. 2016) (citing Fargnoli, 247 F.3d at 42).
Furthermore, Plaintiff’s objection is without merit because the ALJ explained that he has
given certain aspects of Dr. Justice’s opinion limited weight due to Dr. Justice’s great reliance
upon Plaintiff’s subjective complaints, supplemented with the extensive discussion on Plaintiff’s
credibility. (R. at 20-22.) Accordingly, the Court finds this objection to be without merit.
C. The Magistrate Judge Properly Concluded that the ALJ Evaluated the
Lay Evidence in a Sufficient Manner
Plaintiff’s next Objection to the R&R is that Magistrate Judge Heffley erred in
concluding that the ALJ adequately evaluated the lay evidence. (Doc. No. 18 at 4.) Plaintiff
raises two arguments in support of her claim that the ALJ’s evaluation of the lay evidence was
inadequate: (1) the ALJ did not properly identify evidence that contradicted Plaintiff’s subjective
claims, and (2) the ALJ erred in giving only limited weight to the Adult Function Report
submitted by Plaintiff’s brother, James Harvin. (Id. at 4-6.) Plaintiff contends that because the
R&R adopts the ALJ’s decision without sufficient explanation of these alleged errors, she must
object to this Court’s adoption of the R&R.
This Court, however, finds both arguments
The Magistrate Judge Correctly Explained that the ALJ’s
Decision Regarding Plaintiff’s Credibility Was Accurate
Plaintiff objected to the ALJ’s decision on the ground that the ALJ erred in finding that
her testimony was not credible. After the R&R was published, Plaintiff again objects to the
Magistrate Judge’s approval of the ALJ’s decision on her credibility. (Doc. No. 18 at 4.)
Specifically, Plaintiff argues that the ALJ failed to identify any evidence that contradicts
Plaintiff’s claims. (Id. at 4.)
Plaintiff relies on 20 C.F.R. § 416.929(c)(2)5 and argues that
evidence proffered by the ALJ and relied upon by the Magistrate Judge are not contradictions,
but rather merely lack of substantiation. (Doc No. 18 at 4.) This argument is unpersuasive.
The ALJ correctly pointed to contradictions between Plaintiff’s claims and her testimony,
which the Magistrate Judge highlighted in the R&R. For example, Plaintiff claimed that she
could not work because she was disabled from debilitating shoulder, wrist, back, and neck pain.
(Doc. No. 17 at 23.) The Magistrate Judge, however, noted that “Green, herself, reported that
she could walk for 30 minutes.” (Id.) Additionally, the ALJ noted that “the claimant’s medical
records do not document that she consistently reported or sought treatment for her reported neck
pain, back pain, bilateral hand/wrist pain, bilateral knee and ankle pain, and right shoulder pain.”
(R. at 20.) The Magistrate Judge properly agreed with the ALJ that Plaintiff’s complaints were
“further undermined by the fact that she was able to perform her activities of daily living without
any reported obstacle.” (Doc. No. 17 at 23 (citing 20 C.F.R. § 416.929(c)(3)(i) (listing daily
activities among factors to be considered in evaluating pain).) Plaintiff was able to perform daily
activities, such as walking for at least 30 minutes, and failed to document her ailments in her
20 C.F.R. § 416.929(c)(2) states: “[W]e will not reject your statements about the intensity and
persistence of your pain . . . solely because the available objective medical evidence does not
substantiate your statements.”
medical records. (See R. at 20.)
These events “undermined her credibility regarding the
intensity and persistence of the pain” and any related limiting effects. (Id.)
In addition, Plaintiff claimed that her ailments were so severe that they prevented her
from working. (R. at 19.) However, Plaintiff testified that her prescribed treatment for her
physical conditions were conservative. (See Doc. No. 17 at 24.) Evidence of conservative
treatment contradicts and undermines Plaintiff’s claims that her physical ailments were so severe
to render her unable to work. Such evidence shows that Plaintiff was not affected enough to seek
out additional treatment. Moreover, the ALJ determined that the evidence of record showed that
Plaintiff was non-compliant with the treatment she did receive. (R. at 21.) The Magistrate Judge
was correct in noting that “Courts in this circuit have consistently held that a complaint’s
conservative treatment is relevant evidence regarding the credibility of the alleged symptoms.”
(Doc. No. 17 at 24); Garret v. Comm’r of Soc. Sec., 274 F. App’x. 159, 164 (3d Cir. 2008);
Williams v. Astrue, No. 08-4820, 2009 WL 1674764 (E.D. Pa. June 15, 2009); Soto v. Barnhart,
No. 04-1588, 2005 WL 1367183, at *2 (E.D. Pa. June 6, 2005).6
“As the fact finder, the ALJ may reject in part or in whole, subjective complaints if [he
or] she finds them not credible based on other evidence in the record.” Jones v. Colvin, No. 134831, 2014 WL 2862245, at *9 (E.D. Pa. June 24, 2014) (citations omitted).
symptoms and pain will only be considered to the degree that they are consistent with medical
Plaintiff argues that Sykes v. Apfel, 228 F.3d 259, 266, n.9 (3d Cir. 2000) is a more
compelling decision to follow. (Doc. No. 18 at 6.) Plaintiff is correct in stating that this case
holds that receiving only conservative treatment is an insufficient basis for rejecting
complaints of pain. Sykes, 228 F.3d at 266, n.9. However, in Sykes the ALJ found the
evidence of pain and symptoms alleged do not reasonably support the intensity and frequency
asserted, and the only explanation for this conclusion was the plaintiff had received only
conservative treatment. Id. In this case, the ALJ supported his credibility determination with
the collective evidence of record, including the medical opinion testimony and medical
records. (R. at 21.) Therefore, Plaintiff’s reliance on Sykes is misplaced.
and other evidence” when there is conflicting credible testimony and objective medical
testimony. Perry v. Barnhart, No. 02-1289, 2003 WL 22423199, at *8 (3d Cir. September 26,
2003) (citing 20 C.F.R. §§ 404.1527(c); 416.927(c)).
Here, the ALJ’s credibility determination was supported by substantial evidence and is
entitled to judicial deference. Plummer, 186 F.3d at 427. The Magistrate Judge was correct in
finding the ALJ based his credibility determination on the “contradictions between [Plaintiff’s]
descriptions of her physical and mental conditions and the other evidence of record.” (Doc. No.
17 at 25.) The Court adopts the Magistrate Judge’s findings on this point.
The Magistrate Judge Was Correct in Finding that the ALJ
Could Give Little Weight to the Adult Function Report
Submitted by Plaintiff’s Brother
Plaintiff objects to the ALJ’s decision to give little weight to the Adult Function Report
submitted by Plaintiff’s brother, James Harvin. (R. at 273.) Specifically, Plaintiff argues that the
credibility determination of the ALJ and the Magistrate Judge’s reasoning for adopting it was
“conclusory,” and did not provide enough explanation. (Doc. No. 18 at 6.) To the contrary, this
Court finds that the R&R sufficiently explains its reasons for finding that the ALJ was correct in
giving little weight to Harvin’s evidence.
In explaining why the Magistrate Judge agreed with the ALJ’s decision on Harvin’s
credibility in the Adult Function Report, the R&R stated:
Green contends that the ALJ erred by deciding to give only limited weight to the
Adult Function Report submitted by her brother, James R. Harvin (“Harvin”).
Harvin reported that Green was “not able to focus [and had a] short attention
span.” R. at 273. He stated that she sometimes needed to be reminded to take
her medication. Id. at 275. Harvin further maintained that Green sometimes
became confused and overspent and that she could not “focus or keep account of
money.” Id. at 276-77. He also alleged that her reading had “slowed down”
because she could not focus, id. at 277, and described the period for which she
could pay attention as “not long,” id. at 278. The ALJ chose to give Harvin’s
report only limited weight because he found it to be inconsistent with the
evidence of record regarding Green’s mental capabilities, particularly with the
results of Dr. Justice’s testing. As discussed supra in Section V(A)7, the ALJ’s
finding that Green’s mental abilities were not so limited was supported by
substantial evidence and is entitled to judicial deference.
(Doc. No. 17 at 25.) As previously discussed in Section VI(A) of this Opinion, the Magistrate
Judge was correct in finding that Plaintiff does not meet or equal any of the mental disorder
listings and that the ALJ adequately explained his reasoning. Harvin’s testimony related
directly to Plaintiff’s mental abilities. (See R. at 273-80.) The ALJ properly found that
Harvin’s testimony had little weight because it was “not consistent with the evidence of
record, including treating source records and clinical examination findings on a longitudinal
basis.” (Id. at 23.) Harvin’s testimony was essentially just corroborating the claimant’s own
subjective allegations regarding her symptoms and limitations related to her impairments.
(Id. at 22-23.)
Because the Magistrate Judge found substantial evidence in the record to support the
ALJ’s decision about the mental disorder listings, and Harvin’s testimony is essentially a
regurgitation of Plaintiff’s claims which were not supported by the record, this Objection
similarly is without merit. The Court agrees with the Magistrate Judge’s conclusions.
D. The Magistrate Judge Properly Concluded that the ALJ’s Hypothetical
Question to the Vocational Expert Was Proper
Finally, Plaintiff objects to Magistrate Judge Heffley’s decision that ALJ’s hypothetical
question to the VE adequately described Plaintiff’s RFC. (Doc. No. 18 at 6.) The ALJ “stated
[to the VE] that she would need the option to sit or stand during her workday, but did not specify
how frequently she would need to change positions.” (Doc. No. 17 at 25; Doc. No. 13 at 19-20.)
Section V(A) of the R&R found that the ALJ’s decision and explanation of Plaintiff’s inability
to meet or equal any of the mental disorder listings was supported by substantial evidence,
and therefore afforded judicial deference under Plummer. (See Doc. No. 17 at 5-12; Plummer,
186 F.3d at 427.)
Plaintiff argues that the ALJ’s hypothetical question “conflicts with common sense” because “no
person can work while in constant motion.” (Doc. No. 18 at 6.)
Social Security Ruling 96–9p states “[t]he RFC assessment must be specific as to the
frequency of the individual’s need to alternate sitting and standing and the length of time needed
to stand.” 1996 WL 374185, at *7 (S.S.A. July 2, 1996). The Magistrate Judge notes, however,
that “the VE stated that the jobs that she testified [Plaintiff] could perform consistent with
[Plaintiff’s] RFC included a ‘sit/stand at-will option.’” (Doc. No. 17 at 26; R. at 54.)
The Magistrate Judge was correct to find that courts in this Circuit have consistently held
that when a VE testifies about jobs that are available to the claimant that include the option to sit
or stand at will, this testimony is sufficient to support a finding that the plaintiff is not disabled.
(Doc. No. 17 at 26.)8 The Court agrees with the Magistrate Judge and finds Plaintiff’s cases
unpersuasive.9 Because the inclusion of a sit or stand at will limitation is considered a harmless
error, the Court adopts the Magistrate Judge’s finding that this inclusion was sufficient to support
the ALJ’s finding that Plaintiff was not disabled. (Doc. No. 17 at 26.) Therefore, this Objection
is also without merit.
See e.g., Carden v. Colvin, No. 14-3120, 2016 WL 233657, at *5 (E.D. Pa. Jan. 20, 2016) (“a
residual functional capacity assessment that permits a claimant to sit or stand ‘at will’ may not
be ‘totally compliant with the strictest interpretation of SSR 96–9p but [courts] have generally
found the inclusion of such a limitation to be harmless error.’”) (quoting Keys v. Colvin, 2015
WL 1275367, at * 12 (M.D. Pa. Mar. 19, 2015)); Barnhart v. Colvin, 2015 WL 778334 (M.D.
Pa. Feb. 24, 2015) (finding harmless error when the ALJ included the sit or stand ‘at will’ as a
limitation) (citing to Hodge v. Barnhart, 76 F. App’x. 797, 800 (9th Cir. 2003).
Plaintiff cites two Seventh Circuit cases in support of her argument. Neither Opinion
addresses the issue of sitting or standing at will within the context of Social Security Ruling
96–9p. See Dimmet v. Colvin, 816 F.3d 486 (7th Cir. 2016); Alaura v. Colvin, 797 F.3d 503
(7th Cir. 2015). The Opinions that directly deal with this issue within the Third Circuit are
more persuasive. See supra n.7.
Plaintiff’s Objections to the Report and Recommendation filed by Magistrate Judge
Heffley will be denied.
The Report and Recommendation will be approved and adopted.
Judgment will be entered in favor of the Commissioner. An appropriate Order follows.
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