JEFFERSON v. COLVIN
ORDER THAT PLFF'S OBJECTIONS TO THE R&R ARE OVERRULED. THE R&R IS APPROVED AND ADOPTED. THE DECISION OF THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION IS AFFIRMED. PLFF'S REQUEST FOR REVIEW IS DENIED. JUDGMENT SHALL BE ENTERED IN THIS MATTER IN FAVOR OF DEFT. THE CLERK OF COURT IS DIRECTED TO CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 5/18/17. 5/19/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAROLYN W. COLVIN
AND NOW, this 18th day of May 2017, upon careful and independent consideration of
the Report and Recommendation (R&R) of United States Magistrate Judge Marilyn Heffley
(Doc. No. 13), Plaintiff’s Objections to the R&R (Doc. No. 14), Defendant’s Response to
Plaintiff’s Objections (Doc. No. 16), Plaintiff’s Brief and Statement of Issues in Support of
Request for Review (Doc. No. 9), Defendant’s response thereto (Doc. No. 10), Plaintiff’s Reply
Brief (Doc. No. 12), as well as the entire record in this matter, it is hereby ORDERED as
Plaintiff’s objections to the R&R are OVERRULED.
We adopt the R&R by Magistrate Judge Heffley (MJ), and write separately only
to address Plaintiff’s objections to the R&R. When reviewing an R&R to which a
party has objected, a court must make “a de novo determination of those portions
of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). Plaintiff Judith Jefferson raises four
objections, all of which mirror her arguments against the decision of the
Administrative Law Judge (ALJ) in her Brief and Statement of Issues in Support
of Request for Review (Doc. No. 8) and her Reply (Doc. No. 12). We address
each in turn.
First, Jefferson objects to the MJ’s determination that the ALJ did not err in
finding her vertigo to be a “non-severe” impairment. The ALJ concluded that
Plaintiff’s vertigo was not a severe impairment at step two of the sequential
evaluation, but did not deny benefits outright at step two. Instead, the ALJ found
that Jefferson had the severe impairments of epilepsy, a seizure disorder, asthma,
obesity, depression, anxiety, a mood disorder, and an adjustment disorder. R. 67–
68. The ALJ then proceeded to the subsequent steps in the sequential analysis.
The MJ concluded that the ALJ did not err in concluding that Plaintiff’s vertigo
was not a severe impairment a step two, and that even if any error had been
committed, the error was harmless. Salles v. Comm’r of Soc. Sec., 229 F. App’x
140, 145 n. 2 (3d Cir. 2007) (“Because the ALJ found in [Plaintiff’s] favor at Step
Two, even if he had erroneously concluded that some of her other impairments
were non-severe, any error was harmless.”); see Rutherford v. Barnhart, 399 F.3d
546, 553 (3d Cir. 2005). This Court agrees with the MJ’s analysis. Contrary to
Plaintiff’s objection, there was no error in the ALJ’s conclusion regarding
Plaintiff’s vertigo, and any error would be harmless.
Second, Plaintiff objects to the MJ’s conclusion that the ALJ’s assessment of
Plaintiff’s residual functional capacity (RFC) was supported by substantial
evidence. The ALJ determined that Plaintiff had “moderate” limitations with
concentration, persistence, and pace, which limited her to “unskilled work . . . [in
a] low stress environment such that there are few changes in work settings and no
fast pace or quota production standards . . . [and] only occasional contact with the
public.” R. 70–71. The MJ concluded that this determination accounted for
Plaintiff’s moderate difficulties and additional limitations in the work
environment. The ALJ’s assessment is consistent with Third Circuit precedent
addressing “moderate” limitations. See, e.g., McDonald v. Astrue, 293 F. App’x
941, 946 (3d Cir. 2008) (concluding that the ALJ’s findings that Plaintiff had
moderate limitations with his ability to maintain concentration, persistence, and
pace and should be limited to “simple, routine tasks” without noise extremes and
bright or sudden light changes was based on substantial evidence). Notably, in
McDonald, the Third Circuit criticizes Plaintiff-Appellant’s reliance on Ramirez
v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004), a case on which Jefferson also
relies. In McDonald, the Third Circuit explained that, on the basis of a lack of
consideration by the ALJ of the frequency of with which Ramirez, the claimant,
suffered these deficiencies, the limitation to “‘simple one to two step tasks’ was
inadequate[.]” McDonald, 293 F. App’x at 847 n. 10. Here, the ALJ’s RFC
assessment regarding Plaintiff’s mental limitations is more extensive and specific,
and thus Ramirez is distinguishable. Therefore, Plaintiff’s objection is meritless
and it is overruled.
Third, Plaintiff objects to the MJ’s conclusion that the ALJ did not err in
evaluating medical evidence. The ALJ partially discounted the opinions of Dr.
Sotomayor, who treated Plaintiff, Dr. Coleman, who reviewed Plaintiff’s clinical
records and conducted a clinical interview of her, and Emmanuel Schnepp, Ph.D.,
a state agency psychologist who referred Plaintiff to Dr. Coleman. R. 123–26.
Multiple factors support the ALJ’s decision to afford limited weight to these
As to Dr. Sotomayor, the ALJ’s decision is proper on three grounds. First, the
treatment notes of Dr. Sotomayor, who treated Plaintiff in November 2012 and
March 2013, did not mention any functional limitations precluding work and only
offered an opinion that Plaintiff could work if she had a “sit down position.” R.
359. The ALJ accommodated this opinion by limiting Plaintiff to sedentary work.
Second, examinations of the Plaintiff by three neurologists failed to show
disabling limitations. To the contrary, examination results indicate that Plaintiff
had “no neurological deficits[,]” “maintained normal strength, coordination, sense
reflexes, and mental status[,]” and was generally “able to do usual activities[.]” R.
69, 74, 76–77, 423, 449, 518, 520, 522. Third, that Dr. Sotomayor checked a box
on a state welfare form to indicate that Plaintiff would be disabled for one year
does not resolve the Social Security disability analysis, because the ultimate
disability conclusion is reserved to the Commissioner. Cunningham v. Comm’r of
Soc. Sec., 507 F. App’x 111, 118–19 (3d Cir. 2012); 20 C.F.R. §§
404.1527(d)(1),(3); § 416.927(d)(1).
As to Drs. Coleman and Schnepp, the ALJ similarly is not required to base the
RFC on a specific medical opinion because the RFC is a decision for the ALJ, not
a doctor. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361–62 (3d Cir. 2011)
(disagreeing with the District Court’s conclusion that the ALJ’s explanation was
insufficient because the ALJ provided details regarding his conclusion and the
factual bases for them). Contrary to Plaintiff’s assertion that the ALJ’s assigning
of no weight to Dr. Coleman’s opinion and partial weight to Dr. Schnepp’s
opinion created an “evidentiary deficit,” an ALJ has a duty to further develop the
record only where the record is insufficient to make a disability decision. 20
C.F.R. §§ 404.1519a, 416.919a. An “ALJ is not bound to accept the opinion or
theory of any medical expert, but may weigh the medical evidence and draw its
own inferences[.]” Brown v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011) (citing
Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986)). Therefore,
the ALJ did not err in evaluating medical evidence.
Finally, Plaintiff objects to the ALJ’s finding that Plaintiff was not credible as to
the severity of her limitations, asserting that this finding was not supported by
substantial evidence. As part of the RFC analysis, the ALJ evaluated the intensity
and persistence of Plaintiff’s symptoms to determine the extent to which those
symptoms limit the individual’s ability to work. Through a comprehensive review
of the record, the ALJ considered Plaintiff’s own statements about her symptoms
as well as other evidence in the record, such as treatment notes, course of
treatment, examination results, and pharmacy records. The ALJ’s finding on
Plaintiff’s credibility is based on multiple factors.
First, the ALJ found that, contrary to Plaintiff’s current complaints about her
seizures, Plaintiff previously had told medical providers that her seizures were
less frequent and less intense. R. 74–75, 106–07, 375, 395, 419, 423, 443, 520–
22. In fact, two months before the hearing before the ALJ, Dr. Stanford S.
Feingberg, one of the neurologists who evaluated Plaintiff, reported that
Plaintiff’s episodes “have not been increasing in frequency.” R. 449.
Next, Social Security regulations provide that a claimant’s statements may be less
credible if medical reports show that the individual is not following the treatment
as prescribed or there are no good reasons for this failure, and the ALJ found that
when Plaintiff was filling her prescription regularly, her seizures were better
controlled and she maintained steady employment. Although Plaintiff claims the
ALJ failed to adequately discuss this issue at the hearing, the ALJ had considered
Plaintiff’s explanation—that her non-compliance was due to mental illness—as
well as the record, which does not support Plaintiff’s explanation. Further,
although Plaintiff argues her daily activities should not undermine her credibility,
daily activities are a factor ALJs must consider in the credibility determination. 20
C.F.R. §§ 404.1529(c)(3)(i).
Further, despite Plaintiff’s claims that she is unable to perform household chores,
Plaintiff previously stated that she performs a range of household chores for
herself, her husband, and their four children, R. 70, 95, 257–60, and these
activities contribute to the ALJ’s determination that Plaintiff was able to perform
work in certain settings. See, e.g., Giese v. Comm’r of Soc. Sec., 251 F. App’x
799, 803 (3d Cir. 2007) (affirming an ALJ’s decision as based on substantial
evidence where the claimant “testified that she was able to drive, do some chores,
cook, read, shop (sometimes alone) and had a boyfriend”); Tuohy v. Comm’r of
Soc. Sec., 127 F. App’x 62, 65 (3d Cir. 2005) (affirming an ALJ’s decision as
based on substantial evidence where the claimant testified “she drives an
automobile, cooks, shops, and performs household chores as a matter of her daily
These factors are consistent with Third Circuit precedent, which makes clear that
“the ALJ is best situated to make credibility decisions [and] the findings of the
ALJ are given deferential review.” Drejka v. Comm’r of Soc. Sec., 61 F. App’x
778, 781 (3d Cir. 2003); see Hoyman v. Colvin, 606 F. App’x 678, 681 (3d Cir.
2015) (“The credibility determinations of an administrative judge are virtually
unreviewable on appeal.”). Therefore, Plaintiff’s objection to the ALJ’s credibility
determination is meritless, and the objection is overruled.
The R&R is APPROVED and ADOPTED.
The decision of the Commissioner of the Social Security Administration is
Plaintiff’s request for review is DENIED. Judgment shall be entered in this matter
in favor of Defendant. The Clerk of Court is directed to close this matter for
BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.
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