GARNER v. COLVIN

Filing 19

ORDER THAT PLAINTIFF'S OBJECTIONS 16 ARE OVERRULED, ETC.; THE COURT APPROVES AND ADOPTS MAGISTRATE JUDGE ELIZABETH T. HEY'S REPORT AND RECOMMENDATION 15 ; PLAINTIFF'S REQUEST FOR REVIEW 11 IS DENIED; AND, THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/13/2017. 06/13/2017 ENTERED AND COPIES E-MAILED. (nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DEL GARNER,
Plaintiff,
v.
NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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CIVIL ACTION
NO. 14-7007

O R D E R
AND NOW, this 13th day of June, 2017, it is hereby
ORDERED that:
(1)

Plaintiff’s objections (ECF No. 16) are

OVERRULED;1

1

The Court has carefully considered Plaintiff’s
objections to Magistrate Judge Elizabeth T. Hey’s Report and
Recommendation (”R&R”) and the Commissioner’s response to the
objections. There is no need to repeat the history or facts of
this case as Judge Hey’s R&R has adequately relayed that
information.
The Court concludes that Judge Hey has correctly and
adequately addressed Plaintiff’s arguments, and, thus, adopts
her R&R. Nonetheless, reviewing the issues raised in Plaintiff’s
objections de novo, Cont'l Cas. Co. v. Dominick D'Andrea, Inc.,
150 F.3d 245, 250 (3d Cir. 1998), the Court further concludes
that:
a.
the ALJ’s decision to find Plaintiff’s hepatitis
C and obesity non-severe was supported by substantial evidence.
Plaintiff has not pointed to any evidence indicating that
hepatitis significantly impacted his ability to do basic work
activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Moreover, as
described by Judge Hey, the ALJ’s analysis concerning

Plaintiff’s obesity was adequate in that Plaintiff did not list
obesity as a factor limiting his ability to work and the ALJ
properly relied on the opinions of physicians who were familiar
with Plaintiff’s obesity. Rutherford v. Barnhart, 399 F.3d 546,
551-53 (3d Cir. 2005); R&R at 21-23 (ECF No. 15).
b.
The ALJ’s conclusion that Plaintiff’s spine
impairment did not meet or equal Listing 1.04a was supported by
substantial evidence. As noted by Judge Hey, Listing 1.04a
requires evidence of nerve root compression, which Plaintiff did
not produce. 20 C.F.R. Pt. 404, Subpt. P, App.1, 1.04a; R&R at
23-25.
c.
The ALJ’s decision to give the opinion of Dr.
Ciriaco no weight because it was inconsistent with his own notes
as well as the totality of the longitudinal medical record was
supported by substantial evidence. The severe limitations
described on Dr. Ciriaco’s August 2010 check-box Medical Source
Statement, (Tr. 808-10), were inconsistent with, inter alia, his
own treatment notes, the objective findings in the record, the
opinions of other physicians, and Plaintiff’s own reports. See
R&R at 27-29. Moreover, contrary to Plaintiff’s new argument,
the ALJ was not required to re-contact Dr. Ciriaco in order for
him to clarify his opinion. See 20 C.F.R. §§ 404.1520b(b),
416.920b(b).
d.
The ALJ’s credibility assessment of Plaintiff’s
testimony was supported by substantial evidence. The ALJ
carefully documented his reasoning and, contrary to Plaintiff’s
assertion, correctly considered Plaintiff’s ability to perform
daily activities when making this assessment. 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3); see the ALJ’s decision (Tr. 3133).
The Court also rejects Plaintiff’s new argument
that the ALJ erroneously relied on his “non-compliance” with
treatment as a reason to discount the credibility of his
testimony. The ALJ noted, as a small portion of his overall
analysis, that Plaintiff declined, in the middle of the
injection procedure, a cortisone injection and, on another
occasion, refused to wait in the emergency room for x-rays to be
taken after having been given methadone. (Tr. 32, 33). This is
clearly not a situation where a claimant’s failure to take
prescribed psychiatric medication could be a symptom of his or
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her psychological disorder, rather than an indication that the
disorder is not serious. Thus, cases cited to by Plaintiff
wherein the ALJ erroneously relied on non-compliance as an
indicator of a lack of credibility are not pertinent. See, e.g.
Hennion v. Colvin, No. 13-CV-00268, 2015 WL 877784, at *24 (M.D.
Pa. Mar. 2, 2015).
e.
The ALJ met the Agency’s burden of showing that
Plaintiff could perform other work existing in the national
economy. Plaintiff raises four arguments to the contrary which
the Court finds unavailing:
The Court agrees with Judge Hey’s assessment that
the ALJ’s description of the sit/stand option in the
hypothetical relayed to the VE was not too vague to allow the VE
to determine the erosion of the occupational base. See R&R at
37-38; (Tr. 130-32).
Plaintiff is incorrect that he should have been
found disabled under the Grids. His argument relies on a
conclusion that he was limited to sedentary work. In that the
ALJ’s RFC for limited light work was supported by substantial
evidence, Plaintiff is not eligible to “Grid out.” See R&R at
40.
The ALJ did not err in finding that Plaintiff
could perform a range of light work that required no more than
rare stooping, despite the fact that SSR 83-10 indicates that
light work requires occasional stooping. As noted by Judge Hey,
SSR 83-10 concerns the application of the Grids, which the ALJ
did not apply in this case. Instead, the ALJ correctly relied on
the testimony of the VE and included in his hypothetical that
any light work must require no more than rare stooping. See
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)
(providing that a VE’s testimony constitutes substantial
evidence if the hypothetical reflects all of the claimant’s
impairments).
Finally, as described by Judge Hey, the ALJ did
not err in concluding that Plaintiff’s moderate difficulties in
maintaining concentration, persistence and pace were adequately
compensated for in the RFC by limiting Plaintiff to simple,
routine tasks involving no more than simple, short instructions
and simple work-related decisions with few workplace changes,
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(2)

The Court APPROVES and ADOPTS Magistrate Judge

Elizabeth T. Hey’s Report and Recommendation (ECF No. 15);
(3)

Plaintiff’s request for review (ECF No. 11) is

(4)

The Clerk of Court shall mark this case as

DENIED;

CLOSED.

AND IT IS SO ORDERED.

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

and only occasional interaction with the general public and
coworkers. Unlike when an ALJ finds a plaintiff “often” has such
difficulties, a finding of “moderate” difficulties in these
areas is adequately addressed by these RFC limitations. See
McDonald v. Astrue, 293 F. App'x 941, 946 n.10 (3d Cir. 2008);
R&R (ECF No. 15 at 40-42).
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