Prasnikar v. Colvin
Filing
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MEMORANDUM OPINION (Order to follow as separate docket entry)- For all of the foregoing reasons, upon consideration of the parties briefs and the entire record of the administrative proceedings in this matter, and finding that theALJs decision to deny the plaintiffs claim for SSI benefits was supported bysubstantial evidence, the plaintiffs claims in this action will be denied. A separate order will issue. Signed by Magistrate Judge Martin C. Carlson on September 24, 2014. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH PRASNIKAR,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant
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Civil No. 3:13-CV-743
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION
This is an action brought by Joseph Prasnikar (“Prasnikar” or “the plaintiff”),
a claimant for supplemental social security income (SSI) benefits under Title XVI of
the Social Security Act (Act), 42 U.S.C. §§ 1381-1383f. An administrative law judge
(ALJ) presided over a hearing on Prasnikar’s claims, and reviewed Prasnikar’s
medical and opinion evidence offered in support of his application for benefits.
Following that review, the ALJ issued an adverse decision, finding that Prasnikar was
not totally disabled as a result of a combination of physical and mental limitations,
and, therefore, denied his claim for SSI benefits. In this action, Prasnikar seeks
review of this decision pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). Because we
find that the ALJ’s decision was supported by substantial evidence, and because there
is no basis to remand this decision for further consideration, Prasnikar’s claims will
be denied.
II.
STATEMENT OF THE CASE
The plaintiff sought disability benefits in 2011 after having had little work
experience as an adult, due in large part to the fact that he was incarcerated for much
of his adult life. Prasnikar spent 16 years, between 1988 and 2004, incarcerated in
Massachusetts as the result of an undisclosed sexual crime. (Doc. 8, Transcript and
Exhibits (“Tr.”) 1089.) Since his release from custody, it appears that Prasnikar has
lived in or around Tuscarora, Pennsylvania, where he has held two jobs, working
briefly as a telemarketer between 2006-2007, and as a laborer with a temporary
employment service between 2004 and December 2009.
In October 2009, Prasnikar suffered a heart attack while working as a
temporary worker at a turkey farm, and was life-flighted to Lehigh Valley Hospital,
where he was diagnosed with a non-ST elevation myocardial infarction, coronary
artery disease status post drug-eluting stent to the right coronary, pneumonia, tobacco
use, hypertension and hyperlipidemia. Prasnikar was discharged on October 8, 2009,
in stable condition, with multiple discharge medications, and without recurring chest
pain or arrhythmia, after doctors “had a long discussion” with him regarding the need
2
for him to stop smoking and the health risks associated with living with a roommate
who smokes cigarettes.1 (Tr. 223.) Prasnikar continued to smoke immediately after
he was discharged, was readmitted to the hospital on October 8, 2009, after
experiencing chest pain, and was catheterized. On October 10, 2009, he reported
himself to be pain-free and asymptomatic and was deemed stable for discharge. (Tr.
255.)
After the heart attack, Prasnikar returned to his job at the turkey farm, but
found he could no longer perform his prior work there as a turkey handler, and was
unable even to perform lighter duty tasks such as folding boxes, notwithstanding that
he was taking tablets of nitroglycerin on average twice a week to help him cope with
chest pain, ventricular contractions and burning sensations that he claims to have
experienced four to five times a week.2
Believing that he was no longer capable of engaging in any substantial gainful
employment, Prasnikar protectively filed an application for SSI benefits on March 22,
By the time of his hearing before the ALJ, Prasnikar had not stopped
smoking, although he represented that he was down to five cigarettes a day and
had been put on Chantix to aid his effort at smoking cessation.
1
Prasnikar’s asserted inability to continue working in a lighter capacity as a
box maker at the turkey farm appears to have been based on his claim that he
suffers from carpal tunnel syndrome. Prasnikar has not supported this claim with
medical evidence, and in fact has not claimed that he is disabled because of this
alleged condition.
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2010, alleging a disability onset date of October 6, 2009, the day of his heart attack.
A hearing was held on June 24, 2010, in Pottsville, Pennsylvania before the
Honorable Michelle Wolfe, an administrative law judge. During the hearing,
Prasnikar testified, as did his girlfriend, Hallie Gerber, and Gerald Keating, an
impartial vocational expert. On August 17, 2011, the ALJ issued an unfavorable
decision denying Prasnikar’s claims for SSI benefits. (Tr. 61-78.)
Prasnikar was 43 years old at the time of the ALJ’s adverse decision, and,
therefore, considered a “younger individual” under Social Security Regulations (Tr.
16). 20 C.F.R. § 416.963(c). He has a GED, and can speak, understand, read, and
write English. (Tr. 18, 165.) Prasnikar lives in an apartment with his girlfriend,
Hallie Gerber, a woman sometimes identified in the record documents as Prasnikar’s
fiance. (Tr. 17.) In this action, Prasnikar claims that he is totally disabled based upon
heart disease, chronic obstructive pulmonary disorder (COPD), depression, and posttraumatic stress disorder (PTSD) relating to his long-term incarceration. (Tr. 36,
166.) In addition to these asserted impairments, Prasnikar claims that he sleeps
poorly, suffers from back pain, has volatile moods, is frequently defensive and
aggressive, and experiences violent dreams about prison that sometimes result in him
unconsciously lashing out at his girlfriend in the middle of the night.
4
On January 15, 2010, after he had discontinued working at the turkey farm,
Prasnikar had a follow-up medical appointment to assess his heart condition. A
radiology report produced at that time showed that he had no active cardiovascular
disease in his chest, his lungs were found to be clear, and his heart was a normal size.
(Tr. 286.)
On March 12, 2010, Prasnikar again sought treatment for chest pain and
chronic asthma; the doctor who saw him was Carolyn Houk, M.D. (Tr. 561.) During
this medical appointment, it was noted that the plaintiff had not followed up on his
medical appointments for several months, yet was now requesting that the doctor help
him obtain disability benefits. (Tr. 562.) The nursing intake notes indicate that the
plaintiff was claiming to have daily aching chest pain provoked by stress, and claimed
that he felt chronically fatigued and demoralized that he could no longer work.
During his exam, Prasnikar was found to be alert, healthy, and in no distress,
though it was difficult to get a good lung exam because he would not or could not
comply with directions to take deep breaths. (Tr. 564.) The plaintiff’s heart rate and
rhythm were normal with no unusual sounds like clicks, murmurs, rubs or gallops.
(Tr. 564.) In her notes from the appointment, Dr. Houk observed that “[d]espite him
feeling chest pain, sob and fatigue, he has not sought medical attention within the last
5 months and is instead asking for disability which is odd.” (Tr. 564.) Dr. Houk
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could not do a complete assessment for a variety of reasons, and after noting that the
plaintiff needed to improve medically before further assessment was possible, she
stated that “I cannot rule out depression.” (Tr. 564.) Dr. Houk also noted that the
plaintiff was noncompliant with his medications and continued to smoke, something
she “strongly urged” him to stop doing given his asthma and its effect upon his
health. (Tr. 564.)3
Dr. Houk saw the plaintiff again on March 29, 2010. During this visit, his
heart rate and rhythm were once again found to be regular with no unusual sounds.
(Tr. 1095.) During this visit, the plaintiff exhibited some bilateral wheezing in his
lungs, but it was noted that he had a better airway than was previously observed. (Tr.
1095.) Dr. Houk’s notes indicate that cardiologists did not believe that the plaintiff’s
chest pain was related to active ischemia, and he had a normal ejection fraction,
which is a measurement of the percentage of blood leaving the heart after it contracts.
(Tr. 1096.) It was also noted that the plaintiff continued to smoke, despite being
Records from around this time indicate that the plaintiff had appeared at
St. Luke’s Hospital in Coaldale, Pennsylvania, complaining of shortness of breath
and other related conditions, and appeared to be suffering from pneumonia, though
it appeared that his condition was found to be normal. (Tr. 507-510.) It was also
observed that the plaintiff suffered from some nasal blockage, with a deviated
septum, which may have been the result of fights that the plaintiff had as an
inmate. (Tr. 517.)
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strongly advised to quit, and that his asthma had not improved since his last visit.
(Tr. 1096.)
On May 5, 2010, the plaintiff was seen by Larry Jacobs, M.D. for complaints
of chest pain. (Tr. 582.) Dr. Jacobs noted that the plaintiff’s chest pain was atypical,
and that his heart rhythm was regular with no unusual sounds. (Tr. 583.) Dr. Jacobs
found that most of the plaintiff’s symptoms, which included shortness of breath, were
related to or due to his COPD. (Tr. 583.) Like Dr. Houk, Dr. Jacobs recommended
that the plaintiff quit smoking. (Tr. 583.)
On May 24, 2010, the plaintiff underwent cardiac stress testing and was found
to have a normal resting electrocardiogram (ECG), with no abnormal changes when
exercising. (Tr. 960.) During this examination, the plaintiff exhibited normal
ventricular function and normal myocardial contractions at rest and during periods
of exercise. (Tr. 960.) When at his maximum exercise level, the plaintiff reported
experiencing some mild chest pain. (Tr. 960.)
Two days later, the plaintiff was again seen by Dr. Houk. At this appointment,
the plaintiff’s heart rate was found to be regular and exhibited no unusual sounds.
(Tr. 1113.) The plaintiff did still have some slight wheezing in his lungs, but it was
noted that this had improved since his prior visit. (Tr. 1113.) Dr. Houk again
emphasized the need for the plaintiff to stop smoking, and told him that his asthma
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would not improve unless he did so. (Tr. 1113.) At this visit, Dr. Houk noted that
the plaintiff was seeing a physical therapist for a lumbar disc displacement issue. (Tr.
1114.) Dr. Houk made similar notes during follow-up appointments in the coming
months. (Tr. 1124, 1133, 1135-36, 1150,1152.)
On June 24 2010, Candelaria Legaspi, M.D., conducted a physical residual
functional capacity (RFC) assessment of the plaintiff based upon her review of his
health records. (Tr. 658.) She concluded that the plaintiff could occasionally lift or
carry 20 pounds and frequent lift or carry ten pounds. (Tr. 658.) She found that he
had no limitation on his ability to push or pull, and that he had the ability to stand,
walk or sit for six hours during an eight-hour workday. (Tr. 658.) The plaintiff was
found to have no postural, manipulative, visual, communicative or environmental
limitations. (Tr. 659-60.) As part of her assessment, Dr. Legaspi found that the
medical evidence indicated that the plaintiff had coronary artery disease, COPD, back
pain, and a disc bulge at L4-L5. (Tr. 662.) With respect to the plaintiff’s heart
condition, Dr. Legaspi found that the plaintiff experienced no episodes of angina or
congestive heart failure, his ejection fracture of 60% was normal, and he had not
sought or undergone aggressive pain treatments for his back symptoms. (Tr. 662.)
Based on her review of the plaintiff’s records, and finding that the plaintiff had been
8
able to control his pain symptoms, Dr. Legaspi concluded that the plaintiff was
capable of engaging in light work. (Tr. 663.)
In October 2010, the plaintiff again presented at Lehigh Valley Hospital with
complaints of chest pain. (Tr. 964.) During that visit, the plaintiff had x-rays taken
that showed that he had no acute cardiopulmonary disease, and his heart rate and
rhythm were normal. (Tr. 973, 977.) An ECG was negative for ischemia. (Tr. 979.)
During a follow-up appointment, the plaintiff told medical providers that his COPD
symptoms were controlled. (Tr. 993.) An x-ray taken in late October 2010 showed
that the plaintiff’s heart was normal. (Tr. 1196.) The following spring, in March
2011, a radiology report showed that the plaintiff had no active heart disease, and
exhibited no signs of respiratory distress. (Tr. 1067, 1073.) Nevertheless, despite
these apparently neutral or positive findings throughout the fall of 2010 and spring
of 2011, in April 2011, Dr. Houk opined in a Pennsylvania Department of Welfare
form that the plaintiff was permanently disabled as a result of coronary artery disease,
COPD and hyperlipidemia. (Tr. 1082.)
In addition to his alleged physical limitations, Prasnikar has also experienced
certain mental impairments or challenges. Thus, on April 8, 2010, the plaintiff
underwent a mental status examination in which he was diagnosed with adjustment
disorder and depressive disorder, and was assigned a Global Assessment of
9
Functioning (GAF) score of 45, suggesting a serious impairment.4 (Tr. 647-48.) At
the time of this assessment, the plaintiff appeared anxious and depressed, but was
neat, with good hygiene, made good eye contact, and demonstrated logical and
coherent thinking. (Tr. 646.)
On June 4, 2010, Peter Garito, Ph.D., conducted a mental RFC assessment
based upon his review of the plaintiff’s health records. (Tr. 623.) Following his
review, Dr. Garito opined that the plaintiff was moderately limited in his ability to
understand and remember detailed instructions, carry out detailed instructions, and
The GAF scale is a measure of the psychological, social, and occupational
function on a hypothetical continuum of mental health. Am. Psych. Ass’n
Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994). The
scale ranges from 0 to 100, with serious impairment of functioning at a score of 50
or below, moderate difficulty in functioning at 60 or below, and some mild
functioning difficulty at 70 and below. Id. at 34.
Although we initially were given some pause in considering the plaintiff’s
claims and the ALJ’s decision given that the plaintiff received two low GAF
scores from mental health professionals, we note that the plaintiff has not
challenged the ALJ’s treatment of this particular aspect of the record. Moreover,
we are mindful that Courts within the Third Circuit have accepted the
Commissioner’s position that GAF scores are not dispositive of disability. See,
e.g., Gilroy v. Astrue, 351 F. App’x 714, 716 (3d Cir. 2009) (explaining that a
GAF score of 45 did not warrant remand given that no statement of specific
functional limitations accompanied the score); Chanbunmy v. Astrue, 560 F. Supp.
2d 371, 383 (E.D. Pa. 2008). Given the absence of argument on this particular
issue, and since the ALJ’s evaluation of the evidence and determination of the
plaintiff’s RFC otherwise finds substantial support in the record, we do not find
that remand is warranted for further consideration of this particular aspect of the
record.
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maintain attention and concentration for extended periods. (Tr. 623.) Dr. Garito
further opined that the plaintiff was moderately limited in his ability to interact
appropriately with members of the general public, to get along with co-workers or
peers without distracting them or even exhibiting behavioral extremes, and to respond
appropriately to changes in the work environment. (Tr. 624.) Dr. Garito concluded
that the evidence demonstrated medically determinable impairments of depression,
adjustment disorder, and PTSD. (Tr. 625.) Nevertheless, Dr. Garito also found that
the plaintiff had the ability to engage in most activities of daily living, including
driving, making meals, shopping and managing finances. (Tr. 625.) Dr. Garito found
that there were limits in the plaintiff’s social activity, but that he was able to relate to
family members and others with whom he interacted. (Tr. 625.) Based on his
observations, Dr. Garito found that the plaintiff was capable of making simple
decisions, carrying out short and simple instructions, maintaining regular attendance,
and performing simple and routine tasks in a job setting. (Tr. 625.) Likewise, Dr.
Garito concluded that the plaintiff was able to satisfy the basic mental requirements
of competitive work on a sustained basis, notwithstanding his limitations. (Tr. 625.)
In addition to his RFC assessment, Dr. Garito completed a form psychiatric review
in which he concluded that the plaintiff had only mild limitations on his activities of
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daily living and moderate difficulty in maintaining social functioning and
concentration, persistence and pace. (Tr. 637.)
On September 14, 2010, the plaintiff was examined by Jopindar Pal Harika,
M.D., a psychiatrist. (Tr. 1089.) During this examination, Dr. Harika noted that the
plaintiff was cooperative, maintained fair eye contact, was alert, coherent, logical, and
goal-directed in his speech. The plaintiff’s thought processes were found to be
organized, and his reality contact was adjudged to be fair. (Tr. 1090.) Dr. Harika
found the plaintiff had normal intellect, and had fair insight and judgment. (Tr.
1090.) The plaintiff reported that he was depressed and had limited interest in
activities, and exhibited psychomotor retardation. (Tr. 1090.) Additionally, the
plaintiff told Dr. Harika that he experienced anxiety and flashbacks relating to past
abuse. (Tr. 1090.) Dr. Harika gave the plaintiff a guarded prognosis and assessed a
GAF score of 40. (Tr. 1090.)
The ALJ considered the foregoing medical and mental health information, as
well as the limited testimony presented by the plaintiff, his girlfriend, and the
vocational expert during the administrative hearing. Following consideration of that
evidence and opinions, the ALJ determined that the plaintiff had the residual
functional capacity to perform a range of light work, with certain non-exertional
limitations. (Tr. 68.) In her decision, the ALJ found that the plaintiff needed to avoid
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concentrated exposure to temperature extremes, fumes, odors, dusts, gases, humidity,
and wetness. (Tr. 68.) Additionally, considering the evidence regarding the
plaintiff’s limited ability in social settings, the ALJ found that the plaintiff would be
limited to engaging in routine, simple tasks in a low-stress environment defined to
involve only occasional decision making, and occasional changes in work setting.
(Tr. 68.) Additionally, the ALJ limited the plaintiff to jobs that would require only
occasional interaction with the public and co-workers. (Tr. 68.)
Based upon this RFC, the ALJ asked the testifying neutral vocational expert
(VE) whether a person of the plaintiff’s age, and with the same education, work
experience and RFC could perform work in the national economy. The VE testified
that such a person could perform jobs such as a pricer, an operator or assembler, and
a packer. (Tr. 54.) Finding that the plaintiff had an RFC that would allow him to
engage in substantial gainful employment in a range of jobs that existed within the
national economy, the ALJ found that although the plaintiff had severe impairments
from coronary artery disease, COPD, adjustment disorder, and depressive disorder,
he was not totally disabled as a result of these impairments, and denied his request
for SSI benefits.
In this action, the plaintiff assigns five points of error to the ALJ’s decision.
First, he argues that the ALJ did not properly evaluate his credibility or his subjective
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complaints with respect to the intensity, persistence, and limiting effects of his
alleged physical symptoms. Additionally, the plaintiff claims that the ALJ did not
adequately consider the opinions of his treating physicians, his prior work record, his
testimony regarding his daily activities, and the precipitating and aggravating factors
that he identified in support of his claim. (Doc. 9, Pl. Br. at 3-7.)
Second, the plaintiff claims that the ALJ erred by failing to give an adequate
rationale when she rejected the treating and examining source opinions, and by failing
to give proper consideration of the treating and examining source opinions in
accordance with applicable regulations and Social Security rulings. As will be
discussed below, the plaintiff’s argument appears to be limited to an argument that
the ALJ failed to consider the treatment summary provided by a licensed social
worker, who does not qualify as an acceptable medical source under applicable
regulations.
Third, the plaintiff claims that the ALJ erred by finding that the plaintiff did not
have an impairment or combination of impairments that meets or medically equals the
severity of the one of the listed impairments set forth in 20 C.F.R. §§ 416.927,
416.925, and 416.926.
Fourth, the plaintiff argues that the ALJ’s decision should be set aside because
she failed to take into consideration the type, dosage, effectiveness and side effects
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of medication that he was taking, “as well as treatments other than medication.”
(Doc. 9 at 3.) The plaintiff does little, however, to explain how the ALJ’s assessment
of these factors fell short of what was required in this setting. Moreover, the ALJ did
consider the plaintiff’s medical regimen, and thus this claim appears factually
inaccurate.
Finally, the plaintiff claims that the ALJ erred in finding that the plaintiff could
perform jobs which were identified by an impartial VE, “and failed to describe what
full range of functional activities the plaintiff could perform as provided in her
hypotheticals to the impartial vocational expert . . . .” (Id. at 4.) In this particular
claim, the plaintiff is objecting to the ALJ’s RFC assessment, something that we find
was adequately supported by substantial evidence.
We will address each of these arguments seriatim below after a review of the
guiding legal standards in this field.
III.
DISCUSSION
A.
Standards of Review–The Roles of the Administrative Law
Judge and This Court
Resolution of the instant social security appeal involves an informed
consideration of the respective roles of two adjudicators–the administrative law judge
and this Court. At the outset, it is the responsibility of the ALJ in the first instance
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to determine whether a claimant has met the statutory prerequisites for entitlement to
benefits. To receive disability benefits, a claimant must present evidence which
demonstrates that he has an “inability to engage in 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.”
42 U.S.C. § 432(d)(1)(A).
Furthermore,
[a]n individual shall be determined to be under a disability only if [her]
physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area
in which [she] lives, or whether a specific job vacancy exists for [her],
or whether [she] would be hired if [she] applied for work. For purposes
of the preceding sentence (with respect to any individual), “work which
exists in the national economy” means work which exists in significant
numbers either in the region where such individual lives or in several
regions of the country.
42 U.S.C. § 423(d)(2)(A).
In making this determination the ALJ employs a five-step evaluation process
to determine if a person is eligible for disability benefits. 20 C.F.R. § 404.1520. See
also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the ALJ finds that a
plaintiff is disabled or not disabled at any point in the sequence, review does not
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proceed any further. 20 C.F.R. § 404.1520. As part of this analysis the ALJ must
sequentially determine: (1) whether the claimant is engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals a listed impairment; (4) whether the claimant’s
impairment prevents the claimant from doing past relevant work; and (5) whether the
claimant’s impairment prevents the claimant from doing any other work. 20 C.F.R.
§ 404.1520. This disability determination involves shifting burdens of proof. The
initial burden rests with the claimant to demonstrate that he is unable to engage in
past relevant work. If the claimant satisfies this burden, then the Commissioner must
show that jobs exist in the national economy that a person with the claimant's
abilities, age, education, and work experience can perform. Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993).
Moreover, where a disability determination turns on an assessment of the level
of a claimant’s pain, the Social Security Regulations provide a framework under
which a claimant’s subjective complaints are to be considered. 20 C.F.R. § 404.1529.
Such cases require the ALJ to “evaluate the intensity and persistence of the pain or
symptom, and the extent to which it affects the individual’s ability to work.”
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Cases involving an assessment
of subjective reports of pain “obviously require[ ]” the ALJ “to determine the extent
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to which a claimant is accurately stating the degree of pain or the extent to which he
or she is disabled by it.” Id.
In making this assessment, the ALJ is guided both by statute and by
regulations. This guidance eschews wholly subjective assessments of a claimant’s
pain. Instead. at the outset, by statute the ALJ is admonished that an “individual’s
statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section; there must be medical signs and findings,
established by medically acceptable clinical or laboratory diagnostic techniques,
which show the existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could reasonably be expected to
produce the pain or other symptoms alleged and which, when considered with all the
evidence. . . , would lead to a conclusion that the individual is under a disability.” 42
U.S.C. § 423(d)(5)(A).
Applying this statutory guidance, the Social Security Regulations provide a
framework under which a claimant’s subjective complaints are to be considered. 20
C.F.R. § 404.1529. Under these regulations, first, symptoms, such as pain, shortness
of breath, and fatigue, will only be considered to affect a claimant’s ability to perform
work activities if such symptoms result from an underlying physical or mental
impairment that has been demonstrated to exist by medical signs or laboratory
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findings. 20 C.F.R. § 404.1529(a)-(c). Once a medically determinable impairment
which results in such symptoms is found to exist, the Commissioner must evaluate
the intensity and persistence of such symptoms to determine their impact on the
claimant’s ability to work. 20 C.F.R. § 404.1529(a)-(c). In so doing, the medical
evidence of record is considered along with the claimant’s statements. 20 C.F.R. §
404.1529(a)-(c). Social Security Ruling 96-7p gives the following instructions in
evaluating the credibility of the claimant’s statements regarding his symptoms: “In
general, the extent to which an individual's statements about symptoms can be relied
upon as probative evidence in determining whether the individual is disabled depends
on the credibility of the statements. In basic terms, the credibility of an individual's
statements about pain or other symptoms and their functional effects is the degree to
which the statements can be believed and accepted as true. When evaluating the
credibility of an individual's statements, the adjudicator must consider the entire case
record and give specific reasons for the weight given to the individual's statements.”
SSR 96-7p. SSR 96-4p provides that “Once the existence of a medically determinable
physical or mental impairment(s) that could reasonably be expected to produce the
pain or other symptoms alleged has been established on the basis of medical signs and
laboratory findings, allegations about the intensity and persistence of the symptoms
must be considered with the objective medical abnormalities, and all other evidence
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in the case record, in evaluating the functionally limiting effects of the
impairment(s).” SSR 96-4p.
The ALJ’s disability determination must also meet certain basic procedural and
substantive requisites.
Most significant among these legal benchmarks is a
requirement that the ALJ adequately explain the legal and factual basis for this
disability determination. Thus, in order to facilitate review of the decision under the
substantial evidence standard, the ALJ's decision must be accompanied by “a clear
and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must
indicate which evidence was accepted, which evidence was rejected, and the reasons
for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate
in his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
Once the ALJ has made a disability determination, it is then the responsibility
of this Court to independently review that finding. In undertaking this task, this
Court applies a specific, well-settled and carefully articulated standard of review. In
an action under 42 U.S.C. § 405(g) to review the decision of the Commissioner of
Social Security denying plaintiff’s claim for disability benefits, Congress has
specifically provided that the “findings of the Commissioner of Social Security as to
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any fact, if supported by substantial evidence, shall be conclusive[.]” 42 U.S.C. §
405(g).
The “substantial evidence” standard of review prescribed by statute is a
deferential standard of review. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
When reviewing the denial of disability benefits, we must simply determine whether
the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198,
200 (3d Cir. 2008). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Hartranft v. Apfel, 181 F.3d 358, 360 (3d
Cir. 1999).” Johnson, 529 F.3d at 200. See also Pierce v. Underwood, 487 U.S. 552
(1988). It is less than a preponderance of the evidence but more than a mere scintilla
of proof. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence
means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)(quoting
Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
A single piece of evidence is not substantial evidence if the ALJ ignores
countervailing evidence or fails to resolve a conflict created by the evidence. Mason
v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). However, in an adequately developed
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factual record, substantial evidence may be “something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the
evidence does not prevent [the decision] from being supported by substantial
evidence.” Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966).
Moreover, in conducting this review we are cautioned that “an ALJ's findings based
on the credibility of the applicant are to be accorded great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness's demeanor
and credibility.’ Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th
Cir.1997); see also Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 801
(10th Cir.1991) (‘We defer to the ALJ as trier of fact, the individual optimally
positioned to observe and assess witness credibility.’).” Frazier v. Apfel, No. 99-715,
2000 WL 288246, *9 (E.D. Pa. March 7, 2000). Furthermore, in determining if the
ALJ's decision is supported by substantial evidence the court may not parse the record
but rather must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968,
970 (3d Cir. 1981).
Mindful of the foregoing well-established guidelines, we consider each of the
plaintiff’s claims of error with respect to the ALJ’s decision to deny SSI benefits.
22
B.
The ALJ Properly Evaluated the Plaintiff’s Credibility
The plaintiff first argues that the ALJ failed to adequately evaluate his
credibility in conjunction with the available medical evidence in the record.
However, in advancing this argument the plaintiff largely resorts to expressing
disagreement with the ALJ’s actual assessment of the evidence, and urges this Court
to weigh that evidence differently than the ALJ did in order to embrace the plaintiff’s
claims. Moreover, we agree with the Commissioner that the plaintiff is, in part,
attempting to rely on medical records and evidence that substantially predate the
relevant period in this case in order to burnish his claims. In contrast, the ALJ
expressed myriad reasons to support her finding that the plaintiff’s subjective
complaints were only partially credible, and her decision is supported by substantial
evidence in the record.
As the fact finder, the ALJ has an obligation to weigh all the facts and evidence
of record and may accept or reject evidence if she explains her reasons for doing so.
Plummer, 186 F.3d at 429. “This includes crediting or discounting a claimant’s
complaints of pain and/or subjective description of the limitations caused by his or
her impairments.” Natale v. Comm’r of Soc. Sec., 651 F. Supp. 2d 434, 448 (W.D.
Pa. 2009) (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); see also
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Moreover, where the findings
23
of the Commissioner are supported by substantial evidence, a reviewing court is
bound by those findings, even if the court would have decided a particular issue
differently. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
The Social Security Administration’s regulations and rulings provide further
guidance in this field. An ALJ is obligated to assess the credibility of a claimant’s
subjective complaints about the extent of his functional limitations in the context of
the objective medical evidence of record and other factors, including the claimant’s
treatment history, medications, work history, and daily activities. 20 C.F.R. §
416.929(c); SSR 96-7p, 1996 WL 374186 (S.S.A. July 2, 1996).
In this case, the ALJ evaluated the plaintiff’s subjective complaints regarding
the limitations he claims to experience as a result of his medical conditions, and she
did not fully credit the plaintiff’s allegations. Importantly for our purposes, the ALJ
articulated a number of reasons to support her conclusion, and her explanation in this
regard makes clear that her decision was supported by substantial evidence of record.
At the outset, the ALJ pointed out that despite repeatedly being warned by
multiple doctors about the dangers of smoking cigarettes, and the importance of
quitting given its deleterious effect on his medical condition, the plaintiff continued
to do so – indeed, the evidence indicates that he immediately resumed smoking after
being discharged from the hospital in October 2009 after suffering a heart attack. (Tr.
24
70, 223, 562, 583, 1096, 1113.) The ALJ found that the plaintiff’s breathing
difficulties were somewhat less severe than he suggested, pointing out that the
plaintiff’s continued smoking undermined his claims. (Tr. 70.) Moreover, with
respect to the medical evidence relevant to this issue, the ALJ highlighted Dr. Houk’s
treatment note, which observed that the plaintiff had not sought medical treatment but
was instead seeking help establishing a disability claim – something the physician
expressly noted was “odd”. (Tr. 71, 564.) Additionally, the physicians treating the
plaintiff found his chest pain to be “atypical”, and the medical notes taken after he
presented with a heart attack confirm this, since subsequent tests showed that his
condition had become normalized. (Tr. 70, 582-83, 960, 993, 1015, 10929, 1095,
1113.) As additional support for her finding that the plaintiff’s subjective complaints
about the severity of his condition were overstated, the ALJ noted that the plaintiff’s
COPD and asthma were reportedly controlled with medication, and this is supported
in the record. (Tr. 70, 562, 663, 993, 1067, 1113.)
The plaintiff’s specific claims of error with respect to the ALJ’s evaluation of
the medical evidence is also both narrow and unpersuasive. Thus, the plaintiff
complains that the ALJ failed to recognize, evaluate or credit evidence in the record
that could have supported the plaintiff’s claim that he experiences neck and lower
back pain. The plaintiff claims that the ALJ ignored evidence from 2001 –
25
approximately eight years before the alleged onset of disability – showing that he had
a moderate bulge at the L4/5 level with effacement of the anterior thecal sac
indicating lower back pain with radiculopathy. Additionally, the plaintiff claims that
the ALJ failed to properly assess the plaintiff’s claims of substantial limitations on
his daily activities, and failed to sufficiently evaluate medical records that he
submitted from his time in prison in Massachusetts. In effect, however, the plaintiff
is asking this Court to embrace the plaintiff’s subjective claims regarding his sleep
habits and other physical limitations, which the ALJ did address by evaluating
medical evidence of record that frequently did not substantiate the plaintiff’s
subjective complaints. Moreover, with respect to medical records from the plaintiff’s
lengthy incarceration, we agree with the Commissioner that find that those records
substantially predate the alleged onset date in this case, and thus appear to be of
especially limited relevance to the plaintiff’s actual claims in this case. See Johnson
v. Comm’r, 529 F.3d 198, 204 (3d Cir. 2008) (although ALJ may not ignore or reject
pertinent evidence without an explanation, an ALJ may overlook other evidence,
including medical records, that is either impertinent or not probative of the disability
claimed).
We disagree with the plaintiff’s assertion that the ALJ failed properly to
evaluate his subjective complaints of pain, or failed adequately to consider the
26
relevant medical evidence submitted. The ALJ’s decision shows that she did consider
the relevant medical evidence, and in a number of specific instances she explained
why she concluded that the evidence did not substantiate the plaintiff’s subjective
complaints. Accordingly, we find no error in the ALJ’s finding that the plaintiff’s
subjective complaints were only partially credible, and we do not find that the ALJ
erred with respect to her consideration of the medical evidence of record.5
C.
The ALJ Properly Evaluated Medical Source Opinions
Next, the plaintiff argues that the ALJ failed to give appropriate weight to the
opinion of Veronica Seitzsinger, a licensed social worker, who opined that the
plaintiff experienced PTSD symptoms related his time in prison. (Doc. 9, at 7.) The
entirety of the plaintiff’s argument is contained in the following sentence: “Mr.
Prasnikar’s counselor, Veronica S. Seitzsinger, MSW, LSW, at Child and Family
Although the plaintiff’s brief reflects zealous advocacy regarding his
claimed disabling physical and mental conditions, we must emphasize that the
brief is in many respects little more than a summation of the plaintiff’s own
subjective testimony and claims, and it devotes considerably less focus to
highlighting objective medical evidence in the record that the ALJ ostensibly
failed to consider. (Doc. 9, at 5-6.) The plaintiff plainly takes substantial issue
with the ALJ’s failure to fully accept or embrace the extent of his claimed
limitations, or the effects of his various physical ailments upon his ability to
function and to work. However, the ALJ did evaluate the extent of the plaintiff’s
claims, and did so in the context of a medical record that in many instances did not
fully support the plaintiff’s claims. The ALJ was empowered to make this
evaluation of the evidence, and her decision recited the reasons for her assessment
of the plaintiff’s credibility.
5
27
Support Services provided a summary of the plaintiff’s treatment dated October 17,
2011 wherein she explained how the plaintiff’s incarceration causes him to now be
diagnosed with post traumatic stress disorder which impacts him on several levels[.]”
(Id.) To the extent the plaintiff is asserting an argument regarding Ms. Seitzsinger’s
opinion, and the ALJ’s consideration of it, we interpret this sentence to mean that the
plaintiff contends that the ALJ failed to adequately evaluate Ms. Seitzsinger’s
summary of the plaintiff’s mental health. If this is indeed the plaintiff’s argument, it
is without merit because the ALJ had no obligation to accept the opinion of Ms.
Seitzsinger, since she is not considered to be an acceptable medical source under
applicable regulations and social security rulings. Moreover, the plaintiff fails to
explain how the ALJ’s treatment of this aspect of the record resulted either in error,
or compels remand for further consideration.
As the Commissioner rightly observes, and ALJ has no obligation to adopt the
opinion of a non-medical source. SSR 06-03p, 2006 WL 2329939, at *2 (S.S.A. Aug.
9, 2006). Licensed social workers are not “acceptable medical sources” under the
governing regulations. 20 C.F.R. § 416.913(a); SSR 06-03p, 2006 WL 2329939, at
*2. Accordingly, information that Ms. Seitzsinger supplied as a licensed social
worker, no matter how probative it may have been, is not capable of establishing the
existence of a medically determinable impairment. Id. Moreover, we agree with the
28
Commissioner that the plaintiff has not explained how the ALJ’s failure to consider
this evidence was harmful, and he does not explain how consideration of this nontreating source would have led to a different result. Indeed, the ALJ did recognize
and address the plaintiff’s mental health treatment in the context of discussing other
medical evidence from other medical sources, as well as the plaintiff’s own
testimony. Accordingly, it is clear from the ALJ’s opinion that she was aware of the
plaintiff’s mental health symptoms, his subjective claims regarding them, and the
testimony of other medical sources. Any failure to address the opinion or treatment
summary from a non-acceptable medical source is, at best, harmless and does not
compel remand to the Commissioner for further consideration. See, e.g., Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or
common sense requires us to remand a case in quest of a perfect opinion unless there
is reason to believe that remand might lead to a different result.”). In this case, we
do not find that remand would serve any purpose, as Ms. Seitzsinger was a nonacceptable medical source, and her treatment note, even if considered, would not be
capable of leading to a different outcome in the ALJ’s opinion.
29
D.
The ALJ Properly Found that the Plaintiff Did Not Meet
Listing 12.06
In his third argument, the plaintiff contends that he satisfied Social Security
listing 12.06 for anxiety-related disorders, but as the Commissioner notes, the
plaintiff provides no evidence in support of this claim. (Doc. 9, at 7.) We find that
the ALJ adequately addressed this issue at step 3 of the sequential claim analysis
process, and sufficiently explained her reasons for finding that the plaintiff did not
meet the listing.
At the third step of the sequential evaluation, a claimant will be found disabled
where he is found to have an impairment or combination of impairments that meets
or equals the criteria for a listing that is set forth in Appendix 1 of the Social Security
Regulations, and meets the duration requirement with respect to the listing. 20 C.F.R.
416.924(d). It is well-established that in order to meet a listing, a claimant must
satisfy all of the specified medical criteria with respect to a claimed impairment. “An
impairment that manifests only some of those criteria, no matter how severe, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521, 525 (1990).
In order to satisfy the requirements of Listing 12.06, a claimant’s medical
impairments must result in at least two of the following: marked restrictions of
activities of daily living; marked difficulties in maintaining social functioning;
30
marked difficulties in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration. 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.06.
The plaintiff argues that he had marked restrictions in his activities of daily
living and marked difficulties in maintaining social functioning that combined to
result in a complete inability to function outside of his home. However, his assertions
– which are really his own conclusions – are not supported by citation to evidence
compelling such a finding. Furthermore, review of the ALJ’s decision makes clear
that this issue was considered adequately, and that the ALJ simply found that the
plaintiff failed to meet this listing. (Tr. 67-68.) In her opinion, the ALJ expressly
stated that she had considered Listing 12.06, but in her review of the evidence and the
plaintiff’s own testimony, concluded that the plaintiff had only mild restrictions on
his activities of daily living, and had moderate – not marked – difficulty with respect
to social functioning. (Tr. 67-68.)
In support of her conclusion, the ALJ highlighted that the plaintiff testified that
he prepares his own meals, performs household chores, and does some shopping. (Tr.
31-32, 67, 181-82.) The ALJ noted that the plaintiff lives with his girlfriend, and
appears to get along with his treatment providers. (Tr. 17, 68.) This evidence was
bolstered by the opinion of Dr. Garito, the state agency consultative psychologist,
31
who observed that the plaintiff was able to engage in activities of daily living, cook,
drive, and manage finances. (Tr. 72, 625.) Although he also found the plaintiff’s
social activity to be limited, he also noted that the plaintiff was able to relate to family
and to other individuals socially. (Tr. 72, 625.) On the basis of his review, Dr. Garito
concluded that the plaintiff had mild restrictions on his activities of daily living and
moderate difficulty in social functioning. (Tr. 72, 625.) This evidence sufficiently
supported the ALJ’s conclusion that the plaintiff did not meet Listing 12.06.
E.
The ALJ Considered the Plaintiff’s Medical Regimen
Next, the plaintiff contends that the ALJ failed to adequately consider the
medications that the plaintiff took to manage his various conditions. (Doc. 9, at 8.)
However, not only does the plaintiff fail to explain how the ALJ’s handling of this
issue compels a remand in this case, but this argument ignores the unassailable fact
that the ALJ did address the plaintiff’s relevant medical records, which expressly
included information relating to the plaintiff’s various medications. In this regard,
the ALJ noted that the plaintiff was taking medication for his cardiac condition, and
addressed the plaintiff’s claims that this medication had certain side effects, including
fatigue and some intestinal discomfort. (Tr. 69.) Likewise, the ALJ observed that the
plaintiff took medication that was successful in controlling his COPD, and also that
the plaintiff had previously taken Flovent and Prednisone, but had since discontinued
32
their use. (Tr. 70.) We thus agree with the Commissioner that the plaintiff’s
argument is factually wrong – the ALJ did consider the plaintiff’s medical regimen
– and we further do not perceive how her treatment of this aspect of the record was
deficient in any respect. It appears that the plaintiff simply disagrees with the way
in which the ALJ weighed this evidence; he does not explain how her evaluation of
this evidence was erroneous, or how it should have compelled a different outcome.
We find no error with the ALJ’s treatment of this issue.
F.
The ALJ Properly Explained and
Determination of the Plaintiff’s RFC
Supported
Her
Lastly, the plaintiff argues that the ALJ erred in her assessment of his residual
functional capacity when she concluded that he had the ability to perform a range of
light work with certain noted limitations. In making this argument, the plaintiff again
urges this Court to find that his own subjective testimony established that he was
entirely disabled, and unable to engage in any work, even limited light work. As
noted above, however, we find that the ALJ adequately explained her assessment of
the plaintiff’s own subjective testimony in the context of the entire medical record
submitted in this case, and the resulting RFC assessment accounted for the plaintiff’s
impairments that were credibly established.
33
A claimant’s RFC represents an assessment of the most that the claimant can
do despite limitations resulting from his recognized impairments. 20 C.F. R. §
416.945; SSR 96-8p, 1996 WL 374184 (S.S.A. 1996). Our review of the ALJ’s
assessment of the plaintiff’s residual functional capacity is a deferential standard, and
the assessment will not be set aside if it is supported by substantial evidence. Burns
v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002). In making an RFC assessment, the
ALJ is required to evaluate all relevant evidence, Fargnoli v. Massanari, 247 F.3d 34,
40-41 (3d Cir. 2001), and explain her reasons for rejecting any such evidence, Burnett
v. Commissioner of Social Security Administration, 220 F.3d 112, 122 (3d Cir. 2000).
Additionally, the ALJ must give a claimant’s subjective complaints “serious
consideration,” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993), and to make
specific findings of fact, including credibility, as to a claimant’s residual functional
capacity. Burnett, 220 F.3d at 120; see also Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Our review of the record in this case compels us to find that the ALJ
complied with these legal requirements, and her decision regarding the plaintiff’s
RFC was supported by substantial evidence.
In this case, the ALJ determined that the plaintiff retained the RFC to perform
a range of light work, subject to various restrictions that were presented to the VE at
the hearing. (Tr. 52-54, 68.) In her decision finding that the plaintiff had the ability
34
to engage in some light work, the ALJ referred to a number of pieces of evidence and
testimony. Thus, the ALJ observed that since presenting at Lehigh Valley Hospital
with what was diagnosed to be a heart attack, the plaintiff had sought only limited
medical attention and follow-up care, which was conservative. (Tr. 70.) The ALJ
also emphasized that objective medical evidence developed after the plaintiff’s
cardiac event in October 2009 reflected that the plaintiff’s condition had normalized.
Thus, the ALJ highlighted the fact that in a February 2011 stress test, the plaintiff was
found to be functioning normally, and physicians observed that the chest pain the
plaintiff reported was “atypical”. (Tr. 70, 583, 1029.) With respect to the plaintiff’s
COPD, the ALJ noted evidence showing that the plaintiff’s symptoms were controlled
by medication and were aggravated by factors such as his continued smoking despite
repeated warnings against it, and environmental factors like humidity, which was
accounted for in the limitations that the ALJ assigned to the plaintiff’s RFC. (Tr. 70,
993, 1113.) In her consideration of the plaintiff’s mental health limitations, she found
that he retained adequate insight and reasonable judgment notwithstanding his
depression. (Tr. 71, 646.) The ALJ noted that the plaintiff’s mood had been
appropriate, his insight and judgment good, and he was fully oriented in May 2011.
In addition, the ALJ placed some reliance upon the opinions of the state agency
reviewing physicians, Drs. Legaspi and Garito. (Tr. 72.) Dr. Legaspi’s opinion
35
corroborated the ALJ’s ultimate conclusion with respect to the plaintiff’s RFC, as she
found that the plaintiff was capable of performing light work. Likewise, Dr. Garito
found that despite some mental limitations, the plaintiff was capable of satisfying the
basic mental demands presented by competitive work. (Tr. 625, 663.)
In attacking the ALJ’s RFC assessment, the plaintiff does little to identify any
errors with her evaluation of the evidence, other than to suggest that his own
testimony should have been credited more fully, especially with respect to his claims
that he lacks energy and needs frequent breaks to rest. (Doc. 9, at 8-9.) As we have
outlined, however, the ALJ’s RFC assessment was supported by substantial
countervailing evidence that was sufficient to support the conclusion that the
plaintiff, while suffering some mental and physical limitations, retains the ability to
engage in a range of light work with certain limitations. Because the plaintiff offers
little in the way of specific criticisms of the ALJ’s decision, and because that decision
was amply supported with evidence in the record, we find no error and no basis to
remand this matter to the Commissioner for further consideration of this issue.
IV.
CONCLUSION
For all of the foregoing reasons, upon consideration of the parties’ briefs and
the entire record of the administrative proceedings in this matter, and finding that the
ALJ’s decision to deny the plaintiff’s claim for SSI benefits was supported by
36
substantial evidence, the plaintiff’s claims in this action will be denied. A separate
order will issue.
/s MARTIN C. CARLSON
Martin C. Carlson
United States Magistrate Judge
September 24, 2014
37
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