RISSMILLER v. COLVIN

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/18/16. 10/18/16 ENTERED AND COPIES EMAILED.(rf, )

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

CIVIL ACTION

ROSEMARIE RISSMILLER

v.
NO. 15-5731
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION

October 18, 2016

KEARNEY,J.
MEMORANDUM

Persons challenging the Social Security Commissioner's denial of disability benefits are
entitled to a full hearing before an experienced administrative law judge where they can testify,
present expert testimony and testimony from their treating physician demonstrating disability.
The administrative law judge follows a detailed well-established procedure to evaluate disability.
A challenge to an administrative law judge's post-hearing denial of disability benefits must show
more than disagreement with the judge's specific credibility findings.

Absent showing more

than a disagreement with credibility findings or weight of considered evidence, we deny a
petition for review in the accompanying Order.
I.

Background

Rosemarie Rissmiller is a 53-year-old married woman. 1 She has an eleventh grade
education. 2 She worked as a hand-packer and school bus driver. 3 Ms. Rissmiller testified she last
worked on April 20, 2012. 4 She testified a car accident on April 23, 2012 kept her from
working. 5 As a result of the car accident, Ms. Rissmiller suffered a fracture of the fifth finger and
a compression fracture of the lumbar spine at L 1, 50-60% loss of height. 6

Ms. Rissmiller applied for Social Security disability benefits on October 19, 2012,
claiming disability based on fractured vertebrae and osteoporosis. 7 The Social Security
Administration denied her claim. She timely requested a hearing.
At the January 30, 2014 hearing before Administrative Law Judge Paula Garrety, Ms.
Rissmiller testified she is able to conduct the daily activities of cleaning, mopping, sweeping,
and dusting. 8 She described cleaning the bathroom and simple cooking. 9 Ms. Rissmiller
described washing the dishes with assistance and loading the laundry, the clothes usually carried
to the washing room for her. 10 She showers and dresses herself, and she can drive five miles on
her own. 11
ALJ Garrety found her to have "the following sever impairments: residuals from
fractured vertebrae with lumbar fusion, and osteoporosis." 12 ALJ Garrety found these
impairments do not meet or equal a listed impairment in 20 CFR Part 404, Subpart P, Appendix
1. 13 ALJ Garrety determined Ms. Rissmiller had "the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except: she would require an opportunity to

..

a1
ternate pos1t10ns.
II.

,,14

Analysis

Ms. Rissmiller argues ALJ Garrety's residual functional capacity (RFC) finding of light
work with an opportunity to alternate positions is not supported by substantial evidence because:
1) Ms. Rissmiller' s testimony does not support a finding of capability to perform a range of light
work; 2) ALJ Garrety's RFC assessment is unreviewable because it does not specify the
frequency or duration of the need to alternate positions; and, 3) ALJ Garrety did not give proper
weight to the opinion of Ms. Rissmiller' s treating doctor, Dr. Didimamof.

15

Ms. Rissmiller also

argues ALJ Garrety failed to develop the record by: 1) failing to order a consultative

2

examination; and, 2) not asking her whether she was treated after January 30, 2013, and then
largely basing the RFC upon a lack of treatment after January 30, 2013. 16
An administrative law judge applies a five-step sequential evaluation process to
determine if a claimant has a disability. 17 At step one, the claimant must prove she is not working
at a "substantial gainful activity." 18 At step two, the claimant must prove she has a "severe
impairment." 19 At step three, the ALJ must determine whether the claimant's impairment
matches, or is equivalent to, one of the listed impairments. 20 If the claimant's impairment
matches or equals a listing, he is presumed disabled. 21 If the impairment does not match or equal
a listing, then at step four, the claimant must show he does not have the "residual functional
capacity" to perform his previous work. 22 At step five, the Social Security Administration must
determine whether the claimant is capable of performing other jobs existing in significant
numbers in the national economy. 23 The burden is on the Commissioner at step five. 24
We review an ALJ's findings of fact "under the deferential 'substantial evidence'
standard. " 25 "We must affirm the ALJ so long as his conclusions are supported by substantial
evidence. " 26 Substantial evidence is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."27 "It is 'more than a mere scintilla but may be somewhat
less than a preponderance of the evidence. "'28 "We review the record as a whole to determine
whether substantial evidence supports a factual finding. " 29
A. Ms. Rissmiller's testimony supports ALJ Garrety's finding of her
capability to perform a range of light work.
Ms. Rissmiller argues ALJ Garrety's determination of her RFC to perform a range of
light work is not supported by her testimony if fully accepted. 30 ALJ Garrety found Ms.
Rissmiller's testimony to be generally credible. 31 Ms. Rissmiller cites her testimony of being
able to lift a maximum of 5 pounds and walking for 20 minutes twice a week. 32 Ms. Rissmiller
3

considers these data points conclusive and compares them with the regulatory definition of "light
work." 33
As defined, "[l]ight work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must have the ability to
do substantially all of these activities."34
As the finder of fact, an ALJ evaluates credibility of witnesses. 35 To assess a claimant's
credibility, an ALJ must consider several factors, including the claimant's daily activities, the
intensity of their symptoms, the treatment they have received and other factors concerning their
functional limitations and restrictions. 36
Ms. Rissmiller confuses the notion of an ALJ finding her testimony to be generally
credible with the notion of an ALJ accepting (or being required to accept) all of her testimony
and claim of disability.

Instead of accepting Ms. Rissmiller's disability claim, ALJ Garrety

accepted her testimony of daily activities and lack of medication and recent medical treatment. 37
From those daily activities, lack of medication and lack of recent medical treatment, the ALJ
determined Ms. Rissmiller has the RFC to perform light work. 38
ALJ Garrety relied on the evidence of Ms. Rissmiller's daily activities in her opinion. 39
ALJ Garrety asked Ms. Rissmiller, "Can you tell me basically [sic] your daily activities during
the day?" 40 Ms. Rissmiller responded, "I do some cleaning, mopping, sweeping, dusting. I clean
the bathroom. I try to do a little bit of everything everyday so it doesn't build up on me." 41 ALJ
Garrety asked Ms. Rissmiller the distance she can drive in a day, and Ms. Rissmiller argued she

4

can drive five miles on her own. 42 ALJ Garrety asked Ms. Rissmiller about her daily activities
around the house. 43 Ms. Rissmiller responded, "They could be a number of things. I try to keep
the living room decent, which would be dusting, using a dry mop .... I do simple cooking. I get
assistance with washing the dishes. I can put the laundry into the washer. The baskets are usually
taken downstairs for me. I shower myselfl,] [d]ress myselfl,] [and] [c]omb my own hair." 44
ALJ Garrety also relies on evidence of the intensity of Ms. Rissmiller's symptoms and
the treatment she received. 45 ALJ Garrety considered the lack of medication and the fact Ms.
Rissmiller has "minimal evidence of any medical treatment within the past 12-months."46
Beyond those considerations, ALJ Garrety found "there is suggestion [sic] within the record that
the claimant's daily activities may be somewhat greater than what she has generally reported.
For instance, in December 2012, she denied any back pain or weakness, but described transient
numbness 'after a day full of strenuous activities' ([Exhibit 2F/8])."47
B. ALJ Garrety's RFC assessment is reviewable after asking an at-will
hypothetical to the Vocational Expert.

An ALJ is "not require[ d] to use particular language or adhere to a particular format in
conducting his [or her] analysis. " 48 The ALJ must provide "sufficient development of the record
and explanation of findings to permit review" of the decision read as a whole. 49 "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. ,,,so
Ms. Rissmiller argues ALJ Garrety's determination of her residual functional capacity is
unreviewable because it does not specify how frequently she must be able to alternate positions.
The ALJ referenced frequency and the Vocational Expert understood the issue. The Vocational
Expert's understanding came from two sources: the case's background information reviewed

5

before the hearing and the Dictionary of Occupational Titles, which vocational experts use to
answer hypotheticals by defining jobs.
The case background information contains a Work History Report filed by Ms.
Rissmiller. In the report, Ms. Rissmiller described her daily duties as a school bus driver
involved a half hour of walking, a half hour of standing, and a half hour of climbing. From those
non-sitting activities, the Vocational Expert could find Ms. Rissmiller's old work included the
opportunity to alternate positions, but not at will.
ALJ Garrety developed the Vocational Expert's earlier review, asking the Vocational
Expert, "Have you reviewed the file and been present throughout Ms. Rissmiller's testimony?" 51
The Vocational Expert responded, "Yes. " 52 ALJ Garrety then referred to Ms. Rissmiller' s prior
employment including "work as a school bus driver" and "hand packing." 53 When ALJ Garrety
posed the hypothetical to the Vocational Expert, ALJ Garrety directed him to "assume the
individual is capable of performing a range of light work that does not require prolonged
standing or walking. In other words, light with an option to alternate positions. Obviously this
would preclude the past work .... " 54 The limitation precluding past work, where Ms. Rissmiller
could alternate positions but not at will, allowed the Vocational Expert to understand ALJ
Garrety's hypothetical included a limitation to sit or stand at will.
The Dictionary of Occupational Titles evidences employment as a school bus driver does
not include an at-will option to alternate positions but does include the option to occasionally
alternate positions. 55 Even if the Vocational Expert did not review Ms. Rissmiller' s file before
the hearing, he knew from the Dictionary of Occupational Titles her prior work included an
opportunity to alternate positions but not at-will. The Vocational Expert knew the hypothetical
posed to him excluded the ability to perform Ms. Rissmiller's prior work (excluded the ability to

6

alternate positions but not at-will). Given the Vocational Expert's understanding of the
hypothetical's exclusion of occupations with a limited (not at-will) option to alternate positions,
the hypothetical posed by ALJ Garrety implicitly carried an at-will option to alternate positions.
Ms. Rissmiller' s argument fails because the ALJ inferred the option to alternate positions is at
will, which was understood by the Vocational Expert, and such a limitation is harmless error.
C. ALJ Garrety did not erroneously evaluate treating doctor's opinion.

Ms. Rissmiller argues ALJ Garrety erred by not according significant weight to the
medical opinion of her treating physician, Dr. Didimamof. 56 "The ALJ provided three bases for
this[]. First, there was no medical treatment since December 2012. Second, the medical evidence
of record evidences improvement in the Plaintiff's condition. Third, Dr. Didimamof' s findings
are unsupported by the objective medical findings." 57
The medical opinions of a treating physician "are entitled to substantial and at times even
controlling weight." 58 A treating physician's opinion on the nature and severity of a claimant's
impairment will be given controlling weight if the opinion is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record. " 59 In rejecting a treating physician's assessment, an
ALJ may not make "speculative inferences from medical reports" and may not reject a treating
physician's opinion "due to his or her own credibility judgments, speculation or lay opinion." 60
The ALJ must explain on the record his reasons for disregarding a treating physician's opinion. 61
It cannot be for "no reason or for the wrong reason. " 62

An ALJ may decide not to credit a treating physician's opinion only upon providing an
adequate explanation. 63 For example, an ALJ may reject a treating physician's opinion when it is
not supported by sufficient clinical data. 64 "[T]he United States Court of Appeals for the Third

7

Circuit has also repeatedly held that when a treating physician's notes, analyzed as a whole,
contradict the physician's opinion on a claimant's ability to work, an ALJ may properly rely on
those notes in determining that the opinion is entitled to little or no weight. " 65 An ALJ may
reject a treating physician's opinion in favor of a non-examining physician if the latter opinion is
.
.
more consistent with the evi"dence. 66

Where a physician fails to provide an explanation supporting his opinion, this "by itself
would justify the ALJ's decision to accord [it] little weight." 67 This is especially the case when
the opinion is provided in a checklist form "which require[s] only that the completing physician
'check a box or fill in a blank,' rather than provide a substantive basis for the conclusions
stated." 68 Such forms provide '"weak evidence at best' in the context of a disability analysis." 69
Ultimately, however, determining a claimant's RFC is the province of the ALJ and not of
the treating physician. An ALJ is required to conduct an independent analysis of the relevant
evidence and to reach his or her own determination regarding the claimant's RFC. 70 "There is no
legal requirement that a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC. Surveying the medical evidence is part of the ALJ's duties." 71
Ms. Rismiller's argument fails because the opinion of her treating physician, Dr.
Didimamof, is in the form of a checklist with fill-in-the-blank sections. 72 The document does not
provide a substantive basis for his conclusions. 73 This "by itself[] justif[ies] the ALJ's decision
to accord [it] little weight." 74 Because ALJ Garrety justifiably reviewed the document, we do not
need to determine the adequacy of the other reasons she expressed for not according the treating
doctor's opinion greater weight.

8

D. ALJ Garrety did not err by not ordering a consultative examination.

Ms. Rissmiller argues "the ALJ did not fulfill her duty to fully develop the record and
should have requested a consultative examination to obtain an opinion as to the extent of Ms.
Rissmiller' s limitations or the current severity of Ms. Rissmiller' s limitations." 75
"Under [Social Security Administration] regulations, an ALJ 'may decide to purchase a
consultative examination' where 'there is an indication of a change in [claimant's] condition that
is likely to affect [claimant's] ability to work."' 76 Likewise, an ALJ may order a consultative
examination if "additional evidence needed is not contained in the records of [the claimant's]
medical sources." 77 The regulations explain, "Before purchasing a consultative examination,
[the ALJ] will consider not only existing medical reports, but also the disability interview form
containing [the claimant's] allegations as well as other pertinent evidence in [the claimant's]
file." 78 "[The ALJ] may purchase a consultative examination to try to resolve an inconsistency in
the evidence, or when the evidence as a whole is insufficient to allow [the Social Security
Administration] to make a determination or decision on [a] claim." 79 "[W]hen there is not
sufficient medical evidence in the record to determine whether the claimant is disabled, '[i]t is
reversible error for an ALJ not to order a consultative examination when such an evaluation is
necessary for the ALJ to make an informed decision. ,,,so
ALJ Garrety did not need to order a consultative examination because there was no
insufficiency of evidence nor an "indication of a change in [Ms. Rissmiller's] condition that is
likely to affect [her] ability to work." 81 Ms. Rissmiller does not identify a need for any additional
evidence not contained in her medical records. The little evidence of recent treatment and
medication does not indicate a need for additional evidence. This instead indicates there is no
other evidence of a disability.

9

E. ALJ Garrety did not err by not asking Ms. Rissmiller whether she was
treated after January 30, 2013, and then largely basing the RFC upon a
lack of treatment after this date.

Ms. Rissmiller argues ALJ Garrety erred in relying on the lack of medical treatment
received by her after January 30, 2013 because she did not ask her if she had any other evidence
of medical treatment after this date.
"The burden lies with the claimant to develop the record regarding . . . [his] disability
because the claimant is in a better position to provide information about ... [his] own medical
condition. " 82

'" [A]

claimant represented by counsel is presumed to have made his best case

before the ALJ. '" 83 "The onus is therefore on counsel to ensure that the ALJ is aware of all of the
evidence favorable to a claimant's case and to probe all of the relevant issues." 84
ALJ Garrety did ask if Ms. Rissmiller had any other evidence to present. 85 ALJ Garrety
asked if there was "any further evidence to present," to which Ms. Rissmiller's counsel replied
there was no more evidence. 86 Quite simply, the ALJ cannot be expected to seek out evidence,
when she does not know whether such evidence exists, particularly after Ms. Rissmiller's
counsel informed ALJ Garrety of being unaware of any outstanding evidence. 87
III.

Conclusion

ALJ Garrety's RFC finding is supported by substantial evidence. ALJ Garrety did not fail
to develop the record. Remand is not required because Ms. Rissmiller does not identify a mistake
in ALJ Garrety's five-step analysis. Challenges based solely on credibility findings and resultant
weight of evidence analysis does not mandate vacating the ruling of the Administrative Law
Judge. The deferential substantial evidence standard requires us to deny Ms. Rissmiller's petition
for review in our accompanying Order.

10

I

(R. 29).

2

Id.

3

Id.

4

Id.

s Id.
6

(R. 206, 208).

7

(R. 61, 128).

8

(R. 46).

9

Id.

10

Id.

II

Id.

12

(R. 28 (citing 20 CFR 404.1520(c)).

13

(R. 28-29).

14

(R. 29-33).

15

(ECF Doc. No. 11, at 4.).

16

Id.

17

Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004).

1s Id
19

Id.

20

See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).

21

Ramirez, 372 F.3d at 550.

22

Id.

23

Id.

11

24

Id. at 555.

25

Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (quoting 42 U.S.C. § 405(g)).

26

Id. (citing Craigie v. Bowen, 835 F.2d 56, 57 (3d Cir. 1987)).

27

Id. (quoting Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)).

28

Id. (quoting Rutherford, 399 F.3d at 552).

29

Id. (citingSchaudeckv. Comm'r, 181 F.3d429,431 (3dCir.1999)).

30

(ECF Doc. No. 11, at 5.).

31

(R. 30).

32

Id.

33

Id.

34

20 C.F.R. § 404.1567(b).

35

Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983).

36

20 C.F.R. § 19.929(c)(3).

37

(R. 31-32).

38

Id.

39

(R. 31-32).

40

(R. 45).

41

(R. 46).

42

Id.

43

Id.

44

Id.

45

(R. 30-33).

46

(R. 32).

12

47

(R. 32).

48

Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).

49

Id.

° Carden v.

5

Colvin, 2016 WL 233657, at *5 (E.D. Pa. Jan. 20, 2016) (alteration in original)
(quoting Keys v. Colvin, 2015 WL 1275367, at *12 *M.D. Pa. Mar. 19, 2015)).
51

(R. 51).

52

Id.

53

(R.51).

54

(R. 51-52).

55

913.463-010 BUS DRIVER, DICOT 913.463-010.

56

ECF Doc. No. 11, at 8-11.

57

Id. at 8.

58

Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20 C.F.R. § 404.1527[(c)](2)).

59

20 C.F.R. § 416.927(c)(2).

60

Morales v. Apfel, 225 F .3d 310, 317-18 (3d Cir. 2000) (internal quotation marks omitted).

61

Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986).

62

Morales, 225 F.3d at 317 (internal quotations marks omitted).

63

Sherrodv. Barnhart, No. 01-4731, 2002 WL 31429337, at *3 (E.D. Pa. Oct. 29, 2002).

64

Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985); see also Salles v. Comm 'r of Soc.
Sec., 229 F. App'x 140, 148 (3d Cir. 2007) ("A lack of evidentiary support in the medical record
is a legitimate reason for excluding claimed limitations from the RFC.").
65

Smith v. Astrue, 961 F. Supp. 2d 620, 643 (D. Del. 2013) (citing Dula v. Barnhart, 129 F.
App'x 715, 719 (3d Cir. 2005)); accord Humphreys v. Barnhart, 127 F. App'x 73, 76 (3d Cir.
2005); Shelton v. Astrue, No. 11-75J, 2012 WL 3715561, at *3 (W.D. Pa. Aug. 28, 2012);
Petrowsky v. Astrue, No. 10-563, 2011 WL 6083117, at *14-15 (D. Del. Dec. 6, 2011).

13

66

Salerno v. Comm'r of Soc. Sec., 152 F. App'x 208, 209 (3d Cir. 2005); Hudson v. Comm'r of
Soc. Sec., 93 F. App'x 428, 431 (3d Cir. 2004).
67

Cunningham v. Comm 'r of Soc. Sec., 507 F. App'x 111, 119 (3d Cir. 2012); see also Plummer
v. Apfel, 186 F .3d 422, 429 (3d Cir. 1999) (opinion may be given "more or less weight
depending upon the extent to which supporting explanations are provided.").
68

Smith v. Astrue, 359 F. App'x 313, 316 (3d Cir. 2009) (quoting Mason v. Shala/a, 994 F.2d
1058, 1065 (3d Cir. 1993)).

69

Id.

°

7

Chandler v. Comm 'r Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). "The ALJ-not treating or
examining physicians or State agency consultants-must make the ultimate disability and RFC
determinations. See 20 C.F.R. §§ 404.1527(e)(l), 404.1546(c). 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)(l)-(2), '[t]he law is clear ... that the opinion of a treating
physician does not bind the ALJ on the issue of functional capacity .... "' Id. (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)).
71

Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); see also Chandler, 667 F.3d at
362 (ALJ could extrapolate based on evidence in record because every fact incorporated in an
RFC does not need to have been found by a medical expert).
72

(R. 255-60).

73

See id.

74

Cunningham 507 F. App'x at 119; see also Plummer, 186 F.3d at 429 (opinion may be given
"more or less weight depending upon the extent to which supporting explanations are provided").
75

ECF Doc. No. 11, at 12.

76

Rosa v. Colvin, 956 F. Supp. 2d 617, 622 (E.D. Pa. 2013) (quoting 20 C.F.R. § 404.1519a).

77

20 C.F.R. § 404.1519a(b)(l).

78

20 C.F.R. § 404.1519a(a).

79

20 C.F.R. § 404.1519a(b).

80

Allen v. Astrue, 2007 WL 1276933, at *3 (E.D. Pa. May 1, 2007).

81

Rosa, 956 F. Supp. 2d at 622 (quoting 20 C.F.R. § 404.1519a).

14

82

Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004) (citing Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987)).

83

Vivaritas v. Comm 'r of Soc. Sec., 264 F. App'x 155, 158 (3d Cir. 2008) (quoting Skinner v.
Astrue, 478 F.3d 836, 842 (7th Cir. 2007)); Wert v. Comm'r of Soc. Sec., No. 13-5705, 2015 WL
1808594, at *12 (E.D. Pa. Apr. 21, 2005).
84

Harrison v. Colvin, No. 14-719, 2014 WL 5148156, at *4 (W.D. Pa. Oct. 14, 2014) (citing
Turby v. Barnhart, 54 F. App'x 118, 122-23 (3d Cir. 2002)); Wert, 2015 WL 1808594, at *12.

85

(R. 54).

86

Id.

87

Hornyak v. Colvin, No. 15-74, 2016 WL 1255288, at *1, n.l (W.D. Pa. Mar. 30, 2016).

15