McElhenny v. Colvin et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we find no basis for remand in the errors claimed by Plaintiff. Therefore, Plaintiffs appeal of the Acting Commissioners denial of benefits (Doc. 1) is denied. An appropriate Order is filed simultaneously with this Memorandum. Signed by Honorable Richard P. Conaboy on 7/2/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL McELHENNY,

:
:CIVIL ACTION NO. 3:15-CV-103
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Social
Security Act.

(Doc. 1.)

Plaintiff originally alleged disability

due to mental conditions, reporting an onset date of April 19,
2011. (See, e.g., R. 11, 162.)

The Administrative Law Judge

(“ALJ”) who evaluated the claim concluded that Plaintiff’s severe
impairments of bipolar disorder and polysubstance abuse did not
meet or equal the listings alone or in combination with Plaintiff’s
non-severe impairments.

(R. 14, 15.)

The ALJ found that Plaintiff

had the residual function capacity (“RFC”) to perform a full range
of work at all exertional levels but with certain nonexertional
limitations and that he was capable of performing his past relevant
work.

(R. 20-21.)

The ALJ therefore found Plaintiff was not

disabled under the Act.

(R. 22.)

With this action, Plaintiff argues that the decision of the
Social Security Administration must be remanded.
21.)

(Doc. 11 at 20-

He identifies the following errors: 1) the ALJ erred at step

three in determining that Plaintiff’s bipolar disorder does not
meet medical listing 12.04; 2) the ALJ did not properly evaluate
Plaintiff’s treating and evaluating physicians; and 3) the ALJ’s
credibility determination as to the severity of Plaintiff’s
limitations is not supported by substantial evidence.

(Doc. 11 at

2.)
After careful consideration of the administrative record and
the parties’ filings, we conclude Plaintiff’s appeal is properly
denied.
I. Background
A.

Procedural Background
On December 29, 2011, Plaintiff protectively filed

applications for DIB and SSI.

(R. 11.)

As noted above, Plaintiff

alleges disability beginning on April 19, 2011.

(Id.)

In his

application for benefits, Plaintiff claimed his ability to work was
limited because of bipolar disorder, bipolar I disorder, and
schizoid personality disorder.
denied on April 9, 2012.

(R. 162.)

(R. 11.)

The claim was initially

review before an ALJ on May 7, 2012.

Plaintiff filed a request for a
(Id.)

On July 19, 2013,

Plaintiff appeared and testified at a hearing in Harrisburg before
ALJ Patrick S. Cutter.

(R. 23-49.)
2

Plaintiff appeared with his

attorney, and a vocational expert (VE) also testified.

(Id.)

The

ALJ issued his unfavorable decision on August 2, 2013, finding that
Plaintiff was not disabled under the Social Security Act.

(R. 22.)

On August 21, 2013, Plaintiff requested a review with the Appeal’s
Council.

(R. 6-7.)

The Appeals Council denied Plaintiff’s request

for review of the ALJ’s decision on November 14, 2014.

(R. 1-5.)

In doing so, the ALJ’s decision became the decision of the Acting
Commissioner.

(R. 1.)

On January 16, 2015, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on March 27, 2015.

(Docs. 9, 10.)

brief on May 11, 2015.

(Doc. 11.)

Plaintiff filed his supporting
Defendant filed her opposition

brief on June 15, 2015 (Doc. 12), and Plaintiff filed his reply
brief on June 25, 2015 (Doc. 15).

Therefore, this matter is fully

briefed and ripe for disposition.
B.

Factual Background
Plaintiff was born on February 5, 1980, and was thirty-one

years old on the alleged disability onset date of April 19, 2011.
(R. 50.)

Plaintiff has a high school education.

(Id.)

He

reported that he stopped working on August 20, 2010, “[b]ecause of
other reasons.”

(R. 162.)

Plaintiff worked as a short order cook,

landscape laborer, fast food worker, and a commercial or
institutional cleaner.

(Doc. 11 at 3.)

3

1.

Impairment Evidence
On June 20, 2011, Plaintiff saw Bret A. Daniels, M.D., at

Twin Rose Family Medicine at Lancaster General Health.
Dr. Daniels had last seen Plaintiff in July of 2009.
on parole at the time of his June 2011 visit.

(R. 259.)
(Id.)

He was

Plaintiff reported

he had been clean since he was jailed in April 2010, and he
complained of decreased motivation.

(Id.)

Dr. Daniels reported

that Plaintiff was alert on examination and his mood was not
restricted.

(Id.)

He assessed Plaintiff to have substance abuse

problems and bipolar disorder and recommended drug and alcohol
counseling as well as psychiatric counseling.

(Id.)

Dr. Daniels

stated that he started Plaintiff back on Lamictal, which Plaintiff
had been on in the past for treatment of his bipolar disorder.
(Id.)
Plaintiff visited Twin Rose on June 30, 2011, and July 7,
2011, for follow up after he had been seen in the emergency room at
Memorial Hospital as a result of injuries sustained when he was a
bystander in a bar scuffle and an insect bite he had gotten a few
weeks before.

(R. 265, 272.)

Plaintiff was alert and oriented,

had normal mood and affect, and his behavior was normal.
273.)

(R. 266,

He was assessed with right-sided Bell’s Palsy and the Lyme

disease suspected at the June 30th visit was confirmed at the July
7th visit.

(Id.)

antibiotics.

Plaintiff was treated with prednisone and

(Id.)
4

On August 3, 2011, Plaintiff again saw Dr. Daniels who
reported that Plaintiff said he had been clean since his June visit
but he had not gotten counseling, and had not started taking
medication because of the cost.

(R. 279.)

Plaintiff stated that

he was feeling well emotionally and, on examination, he was alert.
(Id.)

Plaintiff also told Dr. Daniels he would begin taking the

Lamictal and would see a psychiatrist.
counseling was again recommended.

(Id.)

Substance abuse

(Id.)

On November 23, 2011, Plaintiff was seen at Lancaster General
Health for a psychiatric evaluation.

(R. 223.)

The examiner, who

appears to have been Leo Dorozynsky, M.D., (see R. 224-25) noted
that Plaintiff reportedly had been sober since April 2010.
Plaintiff was taking Lamictal and Prilosec at the time.

(Id.)

(R. 224.)

In a patient questionnaire, Plaintiff indicated that he had little
interest in doing things, he felt depressed or hopeless and anxious
or on edge.

(R. 226.)

Plaintiff’s diagnosis was bipolar disorder.

(R. 229.)
On November 28, 2011, Plaintiff presented at Lancaster General
Health for Suboxone Pretreatment Screening.

(R. 233.)

Plaintiff

reported that his substance of choice was heroin and he had been
using five to ten bags daily for four months.

(Id.)

Under

“substance abuse history,” Plaintiff identified several substances
including alcohol, cocaine, heroin, marijuana, pain killers, and
ecstasy.

(R. 234.)

He stated that his longest period of

5

abstinence was one year.

(Id.)

At his suboxone induction on the same date, Eric Hussar, M.D.,
at Twin Rose Lancaster General Health noted in his “review of
systems” that the psychiatric/behavioral category was positive for
depression and that Plaintiff was nervous/anxious.

(R. 287.)

He

also noted that Plaintiff was oriented to person, place, and time,
he appeared well-developed and well-nourished, and he was not in
distress.
and affect.

(R. 288.)
(R. 288.)

He also found Plaintiff to have a normal mood
Plaintiff was instructed on the use of

suboxone, including to wait until he was in moderate to severe
withdrawal before starting it.

(Id.)

At his visit with Dr. Dorozynsky on December 5, 2011,
Plaintiff stated he was doing better with Seroquel, that his mood
had improved and he was sleeping well but not sedated during the
day.

(R. 214.)

He noted that Plaintiff continued to deny relapse

into substance abuse. (Id.)

Dr. Dorozynsky recorded Plaintiff’s

mood to be euthymic and his affect appropriate.

(Id.)

He also

noted that Plaintiff’s level of functioning was “good; improved.”
(Id.)

The goals were to maintain remission, continue medication

regimen and abstain from drugs and alcohol. (R. 215.)
On January 3, 2012, Plaintiff was admitted to the Roxbury
Treatment Center, with the “reason for treatment” noted as
Plaintiff “reported that health was declining due to binges and
sleep pattern.”

(R. 239.)

He was diagnosed with opioid

6

dependence, cannabis abuse, cocaine abuse, and bipolar disorder
NOS; his GAF was assessed to be 40.

(Id.)

Treatment notes

recorded Plaintiff’s presenting problem as follows: “This 31-yearold single Caucasian male is admitted to the detox phase of
treatment for opiate dependency.
treatment stay.”

(R. 243.)

This is his third inpatient

As well as gaining time being clean

and sober, it was anticipated that Plaintiff would be able to
develop coping skills and address his mental health needs in the
course of his treatment at Roxbury.
discharged on January 27, 2012.

(R. 243.)

(Id.)

Plaintiff was

His condition was recorded

as “oriented” and his prognosis was that he appeared motivated to
follow up with aftercare and continue the recovery process.

(R.

240.)
On January 31, 2012, Plaintiff was seen at T.W. Ponessa &
Associates Counseling Services.

(R. 301.)

His disorders were

recorded to be Bipolar II Disorder, Opioid Dependence, and Alcohol
Dependence, he had a GAF of 50.

(R. 301.)

He was reportedly

seeking outpatient counseling to address issues related to mood
instability, substance dependence, and legal problems.

(Id.)

On February 24, 2012, Plaintiff, accompanied by his mother,
saw Dr. Dorozynsky at Lancaster General Health.

(R. 399.)

In his

“Pertinent interval history” narrative, Dr. Dorozynsky noted that
Plaintiff had stopped taking his medications prior to his Roxbury
hospitalization but was restarted on them.

7

(Id.)

Plaintiff was

going to counseling at T.W. Ponessa.

(Id.)

Dr. Dorozynsky added

the following:
States he has been clean and sober since the
rehabilitation. They brought in prior
psychiatric evaluations from 1999 which we
reviewed amongst other diagnoses was given
diagnoses of bipolar disorder type I.
Patient now acknowledges having had
delusional and psychotic symptoms at that
time accompanied by manic symptoms so it
appears his diagnosis is actually bipolar
disorder type I. Most recently he has been
feeling depressed somewhat tired when asked
admits passive passing suicidal feelings but
denies any intentions or plans. . . . He also
brought in a disability form from the York
County legal system I indicated he is
currently disabled estimated until July of
this year. In the past was on Wellbutrin
tolerated it well is not sure how helpful it
was, however given continued depressive
symptoms despite Seroquel and Lamictal,
adding a low dose of Wellbutrin would br
reasonable.
(R. 399.)

At the visit Plaintiff’s mood was recorded as depressed

and his affect constricted.

(Id.)

At his visit with Dr. Dorozynsky on March 2, 2012, Plaintiff
reported that his mood was better but he felt somewhat tired and
sleepy, especially in the morning.

(R. 404.)

Plaintiff was not

sure if this was a result of some residual depression or side
effects of medication.

(Id.)

Medication alteration was discussed

and it was recorded that Plaintiff was staying in therapy and
remained sober, his mood was neutral, his affect constricted, and
his level of functioning was “[f]air; Improved, slightly.”
On March 15, 2012, Plaintiff reported he was still
8

(Id.)

oversleeping some and felt a lack of motivation, “not clear if this
is sedation.”

(R. 409.)

Plaintiff also reported feeling some

anxiety about being in public.

(Id.)

Dr. Dorozynsky’s plan was to

increase the Wellbutrin dosage, and consider switching some
medications depending on Plaintiff’s response.

(Id.)

Plaintiff’s

mood was recorded as neutral, anxious and depressed, his affect
constricted, and his level of functioning was fair and improved.
(Id.)
On March 30, 2012, Plaintiff saw Barry Hart, Ph.D., for a
clinical psychological examination.

(R. 348.)

When asked about

his mood, Plaintiff reported that he could be “either angry or ‘not
care about anything’ but his medication appears to have his moods
reasonably well stabilized.”

(R. 349.)

Dr. Hart recorded that

Plaintiff worked for York Container for two years unloading
containers prior to his incarceration in April 2010 and he tried to
go back to York Container and other previous employers when he got
out of jail but none of them would hire him, claiming he was too
unreliable.

(R. 349.)

Regarding his mental status, Dr. Hart noted

that Plaintiff’s speech was clear, coherent, and goal-directed; he
again noted Plaintiff’s mood was reasonably stable with medication,
adding that without it, his mood could be quite labile.

(R. 350.)

Plaintiff denied any perceptual disturbances or disorders of
thinking.

(Id.)

Dr. Hart noted that Plaintiff offered very little

insight into his condition, stating “it’s who I am” when asked what

9

he thought caused his mental health problems.

(Id.)

He later

added that he though it was probably due to hereditary issues.
(Id.)

Dr. Hart found that Plaintiff “appeared to present genuinely

and thus his reports is [sic] considered to be an accurate
representation of his current mental health.”

(Id.)

Dr. Hart diagnosed Bipolar I disorder and polysubstance abuse
in sustained partial remission, and he assessed a GAF of 60.

(Id.)

Dr. Hart opined that Plaintiff’s prognosis was reasonable in that
he appeared to be on medication that was stabilizing his moods and
he had been clean from drugs for two months.

(R. 351.)

Regarding

the effects of his impairment on function, Dr. Hart noted that his
concentration should not be an impediment to his ability to hold
down a job.

(Id.)

The only limitations noted by Dr. Hart were in

the area of Plaintiff’s ability to respond appropriately to
supervision, co-workers, and work pressures.

(R. 353.)

Plaintiff

had slight limitations in the following areas: interacting
appropriately with the public; interacting appropriately with
supervisors; and interacting appropriately with co-workers.

(Id.)

Dr. Hart noted a marked limitation in the area of responding
appropriately to work pressures in a usual work setting but no
limitation in responding appropriately to changes in routine work
setting.

(Id.)

Dr. Hart stated that the clinical findings

supporting the marked assessment were that Plaintiff made mistakes
under pressure and got yelled at a lot at work but was only written
10

up once.

(R. 353.)

On April 23, 2012, Plaintiff reported to Dr. Dorozynsky that
his mood had improved but he remained tired during the daytime from
Seroquel.

(R. 414.)

Plaintiff also reported that he remained in

recovery and in counseling.

(Id.)

Dr. Dorozynsky planned to

switch medications the following month if the daytime sedation
continued.

(Id.)

Plaintiff’s mood was recorded as neutral, his

affect constricted, and his level of functioning was fair and
remained constant.

(Id.)

On May 15, 2012, Plaintiff’s mother accompanied on a visit to
Dr. Dorozynsky.

(R. 421.)

Plaintiff reported that he was not

depressed but he remained tired and was not sure if it was from the
Seroquel, adding that he had always tended to lack motivation and
stay in bed when he could.

(Id.)

Plaintiff’s mother reported that

he had some days where he is more upbeat and energized and other
days he seemed more tired and down.
Plaintiff on Abilify.

(Id.)

(Id.)

The plan was to try

Plaintiff’s mood was recorded as

neutral, his affect appropriate, and his level of functioning was
fair and remained constant.

(Id.)

At his June 28, 2012, visit with Dr. Dorozynsky, Plaintiff
reported that he was “feeling good generally in that he is not
tired and groggy anymore.”

(R. 426.)

He described occasional

“bouts of depression” and said he could be irritable, and also that
he tended to forget to take his Wellbutrin and Lamictal a couple
11

days a week.

(Id.)

Plaintiff agreed to be more compliant with his

medication regimen.

(Id.)

Plaintiff’s mood was recorded as

neutral, his affect constricted, and his level of functioning fair
and improved.

(Id.)

Plaintiff was incarcerated at York County Prison from July
2012 through September 2012 for violating probation.
431.)

(R. 360-84,

On the Receiving Screening/Health Assessment dated July 26,

2012, Plaintiff admitted to using three bags of heroin the day
before.

(R. 361.)

oriented.

(R. 365.)

Plaintiff was reported to be alert and
In a Mental Health Screen on the same date,

Plaintiff identified with people whose moods change frequently and
daily find themselves on an emotional roller coaster.

(R. 366.)

He also reported that he could get irritable and start fights.
(Id.)

On August 12, 2012, Plaintiff’s Mental Status Exam indcated

that he was oriented to person, place and time, he was cooperative,
his mood was normal, his affect was broad, his thought process was
logical and organized, his though content was normal, and his
judgment, insight and memory were intact.

(R. 381.)

It was also

noted that Plaintiff’s medications–-Abilify, Wellbutrin, and
Lamictal–-were effective.

(R. 382.)

From September through December of 2012, Plaintiff underwent
drug rehabilitation at Colonial House.

(R. 385-391.)

It was noted

on his December 3, 2012, Discharge Summary that Plaintiff completed
his eighty-four day treatment with no drug use.

12

(R. 385.)

Plaintiff’s “Response to Treatment” included the notations that he
was “externally motivated thru legals,” and he had been meeting all
treatment plan goals and participating in groups and lectures.
385.)

(R.

In group counseling, Plaintiff dealt with problems on

feeling and intellectual levels and was able to handle
confrontation and criticism.

(Id.)

Further notations indicate

Plaintiff’s emotions were appropriate, his affect was generally
appropriate, and he socialized effectively and appropriately.
387.)

(R.

Plaintiff’s prognosis was reported to be fair, a

determination which was

explained with the comment that he was in

early recovery and needed to reach out to build his support.

(Id.)

On January 22, 2013, Plaintiff was seen by Dr. Bowen at
Lancaster General Health.

(R. 431.)

Plaintiff reported that he

was feeling “pretty decent” and his current medication regimen was
effective.

(Id.)

After being released from jail to the

rehabilitation program, Plaintiff was living in a halfway house at
the time of his visit.

(Id.)

Plaintiff denied depressive or manic

episodes and denied sleep problems.

(Id.)

Plaintiff reported that

he was working full-time at the Franklin and Marshall College
kitchen.

(Id.)

Dr. Bowen recorded Plaintiff’s appearance to be

calm, cooperative, and well kempt, his mood was euthymic, his
affect was in the slightly constricted range but euthymic and
appropriate, and his attention and concentration were within normal
limits.

(Id.)

Dr. Bowen’s assessment of Plaintiff’s condition was

13

“Fair; Remained Constant since his incarceration.”

(R. 432.)

Plaintiff again saw Dr. Bowen on February 9, 2013.

(R. 437.)

Plaintiff reported that he had trouble sleeping during the two
weeks preceding his visit (sleeping four to five hours a night) and
he felt tired during the day.

(Id.)

Dr. Bowen recorded

Plaintiff’s appearance to be well kempt and his behavior
cooperative, his thought processes were linear and logical, thought
association was intact and coherent, Plaintiff’s mood was described
as primarily euthymic, his affect was appropriate and euthymic,
full range, and his attention and concentration were within normal
limits.

(Id.)

Dr. Bowen noted that Plaintiff was engaged in

substance abuse treatment.

(Id.)

Plaintiff’s medications were

adjusted and Ambien was added to address Plaintiff’s reported sleep
problem.

(Id.)

Dr. Bowen’s assessment of Plaintiff’s condition

was “Fair; Remained Constant.”

(R. 438.)

At his April 3, 2013, visit with Dr. Bowen, Plaintiff reported
that overall he was doing well.

(R. 443.)

He stated that he

planned to change jobs and had given his two-week notice as his job
was too stressful.
(Id.)

(Id.)

He planned to work in construction.

He asked Dr. Bowen to write a letter detailing his diagnosis

and that he was prescribed medication, stating he wanted to use the
letter in claims for disability or child support.

(Id.)

recorded Plaintiff to be well kempt, calm and cooperative.

Dr. Bowen
(Id.)

He also noted that Plaintiff’s thought processes were linear and
14

logical, his thought association was intact and coherent, his mood
was euthymic a majority of the time, his affect was appropriate and
euthymic, full range, and his attention and concentration were
within normal limits.

(Id.)

Dr. Bowen’s assessment of Plaintiff’s

condition was “Good; Improved.”
2.

(R. 444.)

Opinion Evidence
In addition to the opinion rendered in conjunction with Dr.

Hart’s consultative examination set out above, Melissa Diorio,
Psy.D., the State Agency reviewer, rendered an assessment in April
2012.

(See R. 50-59.)

Also Dr. Dorozynsky offered an opinion in a

form report from York County Domestic Relations (R. 416), and Dr.
Bowen wrote a letter requested by Plaintiff for disability and
child support purposes (R. 395-443).
Dr. Diorio found that Plaintiff had the severe impairment of
Affective Disorders and that his mood was reasonably well
stabilized with medications.

(R. 53.)

Dr. Diorio considered the

affective disorders under the “A” criteria of the Listings: under
12.04 - Affective Disorders, she determined that Plaintiff had a
medically determinable impairment that did not precisely satisfy
the diagnostic criteria; under 12.09 - Substance Addiction
Disorders, she determined that Plaintiff had a medically
determinalbe impairment that did not precisely satisfy the
diagnostic criteria.

(R. 54.)

Under the “B” criteria of the

Listings, Dr. Diorio found the following: Plaintiff had mild

15

restriction of activities of daily living; he had mild difficulties
in maintaining social functioning; he had moderate difficulties in
maintaining concentration, persistence, or pace; and he and no
repeated episodes of decompensation, each of extended duration.
(Id.)

Dr. Diorio found that the evidence did not establish the

presence of the “C” criteria of the Listings.

(Id.)

Based on the evidence of record, Plaintiff was found to be
partially credible.

(Id.)

In making this determination, Dr.

Diorio considered Plaintiff’s activities of daily living, his
medication, the treatment he had received and “other measures to
relieve symptoms.”

(R. 55.)

In her Mental Residual Functional Capacity Assessment, Dr.
Diorio concluded that Plaintiff did not have understanding and
memory limitations.

(R. 55.)

She found that he had sustained

concentration and persistence limitations as follows: he was
moderately limited in his ability to maintain attention and
concentration for extended periods; and he was moderately limited
in his “ability to complete a normal workday and workweek without
interruption from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest
periods.”

(R. 56.)

In narrative form, Dr. Diorio explained that

[t]he claimant is capable of working within a
work schedule and at a consistent pace.
Claimant can make simple decisions. The
claimant is able to carry out very short and
simple instructions. The claimant is able to
maintain concentration and attention for
16

extended periods of time. The claimant would
be able to maintain regular attendance and be
punctual. The claimant would be expected to
complete a normal week without exacerbation
of psychological symptoms.
The claimant is able to meet the basic
mental demands of competitive work on a
sustained basis despite the limitations
resulting from his impairment.
(R. 56.)
Dr. Diorio reviewed Dr. Hart’s opinion, noting that her RFC
assessment partially reflects his opinion.

(R. 56.)

She noted

that Dr. Hart’s statements concerning Plaintiff’s abilities in the
area of making personal and social adjustments are well supported
by the medical and non-medical evidence in the file but his
statements about making occupational and performance adjustments
were not consistent with all the medical and non-medical evidence.
(Id.)
In a “Disability Information for Court” form from York County
Domestic Relations Section completed on April 23, 2012, Dr.
Dorozynsky noted that Plaintiff was fully disabled with limitations
identified as tired and lack of motivation.

(R. 416.)

He also

noted that Plaintiff would be able to return to work in July 2012.
(Id.)
Finally, on April 3, 2013, Dr. Bowen authored correspondence
“To Whom It May Concern” stating that Plaintiff was seen on that
date in his office and that he was treated regularly for bipolar
disorder.

(R. 395.)

Dr. Bowen added that Plaintiff was prescribed
17

medications that were deemed necessary to control his symptoms and
maintain functioning.

(Id.)

Plaintiff asked Dr. Bowen to write

the letter for Plaintiff’s use regarding disability and child
support.

(R. 394, 443.)

The only other information provided in

the letter was that Plaintiff had been seen on that date, he was
treated for bipolar disorder and had regular appointments in the
clinic.
3.

(R. 396.)

Hearing Testimony
Plaintiff was thirty-three years old at the time of the

hearing.

(R. 26.)

Plaintiff reported he had not used heroin,

marijuana, or alcohol since July 26, 2012, he was attending AA
meetings, and he was paying the fines associated with his prior
incarceration (DUI) and probation.

(R. 28-29, 36.)

For the period

from April 19, 2011, to July 26, 2012, Plaintiff said the only drug
he used was heroin which he had started to use heroin about a year
before then when he got out of jail.

(R. 36.)

Plaintiff stated that his probation conditions did not require
that he look for work or be employed, but he was looking for work
anyway.

(R. 28.)

He said that during 2013 he had worked as a cook

in the kitchen at Franklin and Marshall College–-he was not sure of
the dates or duration of his employment there.

(R. 30.)

Plaintiff

added it was very fast-paced work that he could not keep up with.
(R. 31.)

He left the job because of the stress, he was getting

yelled at by the sous chef on a regular basis and that was scaring

18

him because the sous chef would slap him and punch him in the arm.
(R. 39.)

In June 2013 he worked briefly for M & J Professions as a

contractor’s assistant.

(R. 31-32.)

The same month he began

working as a ceiling cleaner for a cleaning business where his
girlfriend was the supervisor.

(R. 32.)

His work schedule varied

depending on the amount of work the company had–-he estimated that
his pay was about $800 to $900 per month.

(R. 33.)

Plaintiff testified that he cannot maintain employment at the
substantial gainful activity level because racing thoughts and
fantasizing about how things should be made him slower than he
should be and mades him sometimes “screw up.”

(R. 34.)

He said

this is true of his cleaning job and he would not have the job if
his girlfriend were not the supervisor.

(R. 38.)

The ALJ reviewed Plaintiff’s prescribed medications.

(R. 34.)

Plaintiff verified that he was taking them and that his doctor had
just increased the dosage of Lamictal to address anxiety when
around other people.
seemed to be working.

(Id.)
(Id.)

He added that the increased dosage
Regarding medication side-effects,

the most notable was Plaintiff’s testimony that the Wellbutrin
could make him “really jittery” sometimes.

(R. 35.)

He also said

that he experienced a little light-headedness and sleepiness with
Risperdal.

(Id.)

Plaintiff reported that he was going to be going for
counseling to “TW Pinesta” but he had only done the intake.

19

(R.

35.)
For hobbies, Plaintiff looks at his baseball card collection
(he had stopped collecting about three years before) and writes
poetry but recently had experienced a mental block.

(R. 37, 40.)

Plaintiff visits his parents and younger daughter weekly.
38.)

(R. 37-

His daily routine depends on whether he has been working–-if

he worked the night before, he would sleep most of the day, then
eat something, watch TV, and go back to work.

(R. 37.)

When asked about his sleep patterns by his attorney, Plaintiff
testified that he hadn’t gotten much sleep over the preceding week
and that happens about once a month.

(R. 40.)

He did not know

what triggered the sleep problem but said it usually happened after
work and he would come home with a lot of energy and couldn’t “seem
to calm down and relax.”

(R. 40-41.)

Plaintiff’s attorney also asked if Plaintiff had ever tried to
hurt himself and Plaintiff responded that he had burned himself
with a cigarette the month before.

(R. 42.)

Plaintiff testified

that he had done this because he “just wanted to feel something”–he did not need or seek treatment for the burn.
A vocational expert also testified.

(R. 42-43.)

(R. 45-49.)

ALJ Cutter

asked the VE to assume a hypothetical person with the same
vocational profile as Plaintiff and RFC to perform a range of work
at any exertional level subject to the following limitations:
the individual has moderate restriction and
moderate is defined as more than a slight
20

limitation but the function can still be
performed on a consistent enough basis to be
satisfactory to an employer and the ability
to maintain attention or concentration.
Respond appropriately to work pressures in
the usual setting; interact appropriately
with the public, supervisors or co-workers
and complete a normal work day or work week
without an unreasonable number or length of
rest periods due to psychologically based
symptoms.
(R. 46.)

The VE was asked whether such a person would be able to

perform any of the past relevant work previously described.

(Id.)

The VE responded that each of the occupations described (short
order cook, landscape laborer, laborer of stores, fast food worker,
polisher buffer II, and cleaner, commercial or institutional (R.
45)) could be performed.

(R. 46.)

The VE also identified other

jobs which such an individual could perform.

(R. 47.)

The ALJ’s next hypothetical added a marked limitation (defined
as “seriously limited, not precluded, but the function cannot be
performed on a consistent enough basis to be satisfactory to an
employer” (R. 48)) in the ability to respond appropriately to work
pressures in the ususal work setting.

(R. 48.)

The VE responded

that the hypothetical individual would not be able to perform any
of Plaintiff’s past relevant work or other jobs given as examples.
(Id.)
4.

The VE added “[t]hat person would be unemployable.”

(Id.)

ALJ Decision
By decision of December 17, 2012, ALJ Cutter determined that

Plaintiff was not disabled as defined in the Social Security Act.

21

(R. 50.)

He made the following findings of fact and conclusions of

law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2015.

2.

The claimant has not engaged in
substantial gainful activity since April
19, 2011, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe
impairments: Bipolar Disorder and
Polysubstance Abuse (20 CFR 404.1520(c)
and 416.920(c)).

4.

The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform a full
range of work at all exertional levels
but with the following nonexertional
limitations: the claimant has a moderate
restriction (moderate is defined as more
than a slight limitation, but the
function can still be performed on a
consistent enough basis to be
satisfactory to an employer) in his
ability to maintain attention and
concentration, respond appropriately to
work pressures in a usual work setting,
interact appropriately with co-workers,
the public, and supervisors, and
complete a normal workday or workweek
without an unreasonable number or length
of rest periods required due to
psychologically based symptoms.

22

6.

7.

(R. 13-22.)

The claimant is capable of performing
all of his past relevant work as
described below. This work does not
require the performance of work-related
activities precluded by the claimant’s
residual functional capacity (20 CFR
404.1565 and 416.965).
The claimant has not been under a
disability, as defined in the Social
Security Act, from April 19, 2011,
through the date of this decision (20
CFR 404.1520(f) and 416.920(f)).

The ALJ reviewed the impairments noted in the record

and explained how he determined that Plaintiff had the severe
impairments noted above.

(R. 14.)

The ALJ also reviewed the

impairments which he considered non-severe--Lyme’s disease and acid
reflux--explaining the designation assigned and why they did not
affect Plaintiff’s ability to perform basic work activities.
14.)

(R.

He determined that Plaintiff’s impairments did not meet or

equal the criteria listings of 12.04 and 12.09 after considering
evidence of record regarding Plaintiff’s limitations in the context
the “paragraph B” and “paragraph C” requirements.

(R. 14-15.)

In explaining Plaintiff’s RFC, the ALJ reviewed the objective
and opinion evidence and set out his rationale for the weight given
to Plaintiff’s subjective complaints and opinions contained in the
record.

(R. 17-20.)

He noted that he gave significant weight to

the opinion of Dr. Diorio, the State agency psychological
consultant, because she had the opportunity to review Plaintiff’s
available treatment records prior to rendering her opinion which

23

the ALJ found “consistent with the claimant’s overall improvement
with proper medication management and therapy.”

(R. 19.)

The ALJ gave limited weight to Dr. Hart’s opinion wherein Dr.
Hart opined that Plaintiff had a marked difficulty in his ability
to respond to work pressures in a usual work setting.

(R. 19.)

The rationale for the weight attributed was that Dr. Hart’s finding
was based on Plaintiff’s own less than credible subjective
complaints and also that the marked limitation was inconsistent
with Dr. Hart’s own objective clinical findings, including a GAF
assessment of 60.

(Id.)

The ALJ afforded no weight to the opinion expressed in the
form completed by Dr. Dorozynsky on April 23, 2012, for York County
Domestic Relations wherein Dr. Dorozynsky opined that Plaintiff was
“fully disabled” and unable to return to work until July 2012.
19.)

(R.

The ALJ’s rationale was that the disability determination is

reserved for the Commissioner, Dr. Dorozynsky provided no support
for the assessment, and his assessment is not supported by evidence
of record.

(Id.)

The ALJ stated that the assignment of limited credibility to
Plaintiff’s allegations regarding the effects of his mental health
conditions was based on treatment notes which indicate that his
mood was effectively stabilized with medication, his April 2013
visit with Dr. Bowen where Plaintiff indicated he was doing well,
and Dr. Bowen’s objective assessment.

24

(R. 19-20.)

The ALJ also

based his credibility determination on Plaintiff’s own inconsistent
statements.

(R. 20.)

With the aid of a VE, the ALJ concluded Plaintiff could
perform his past relevant work as actually and generally performed
as well as other jobs which exist in the national economy.

(R 20.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can

1

“Disability” is defined as the “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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his 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 he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
25

perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her 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, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fourth step of the process when the ALJ found that Plaintiff was
capable of performing all of his past relevant work.

(R. 20-21.)

III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to

26

support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
27

“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
28

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

It is the

ALJ’s responsibility to explicitly provide reasons for his decision
and analysis later provided by the defendant cannot make up for
analysis lacking in the ALJ’s decision.

Fargnoli v. Massanari, 247

F.3d 34, 42, 44 n.7 (3d Cir. 2001); Dobrowolsky, 606 F.2d at 40607.

Neither the reviewing court nor the defendant “may create or
29

adopt post-hoc rationalizations to support the ALJ’s decision that
are not apparent from the ALJ’s decision itself.”

Hague v. Astrue,

482 F.3d 1205, 1207-08 (10th Cir. 2007); see also Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,
50 (1983) (citations omitted) (“It is well-established that an
agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.”)
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases
30

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the decision of the Social

Security Administration is error for the following reasons: 1) the
ALJ erred at step three in determining that Plaintiff’s bipolar
disorder does not meet medical listing 12.04; 2) the ALJ did not
properly evaluate Plaintiff’s treating and evaluating physicians;
and 3) the ALJ’s credibility determination as to the severity of
Plaintiff’s limitations is not supported by substantial evidence.
(Doc. 11 at 2.)
1.

Listing 12.04
Plaintiff first asserts that the ALJ erred when he did not

find that Plaintiff’s bipolar disorder met the requirements of
listing 12.04.

(Doc. 11 at 10.)

Defendant argues that the ALJ

appropriately found that Plaintiff’s condition failed to meet the
requirements of Listing 12.04B and C.

(Doc. 13 at 17.)

We agree

with Defendant.
A claimant bears the burden of establishing that his
impairment meets or equals a listed impairment.

Poulos v. Comm’r

of Social Security, 474 F.3d 88, 92 (3d Cir. 2007).

In general the

required level of severity for an affective disorder may be
31

established when the criteria for both parts A and B are met or
when the criteria in paragraph C are satisfied.
subpt. P, App. 1 § 12.04.

20 C.F.R. pt. 404,

The part A criteria “are medical

findings that substantiate the presence of the mental disorder.”
Cunningham v. Comm’r of Social Security, 507 F. App’x 111, 116 n.4
(3d Cir. 2012) (citing 20 C.F.R. pt. 404, subpt. P, App. 1, §
1200(A)).

To satisfy the “B” criteria of Listing 12.04, the mental

impairments must satisfy at least two of the following: 1) marked
restriction of activities of daily living; 2) marked difficulties
in maintaining social functioning; 3) marked difficulties in
maintaining concentration, persistence, or pace; 4) repeated
episodes of decompensation, each of extended duration.
pt. 404, subpt. P, App. 1 § 12.04(B).

20 C.F.R.

“A ‘marked’ restriction or

difficulty is one that is more than moderate but less than extreme
and that ‘interfere[s] seriously with [the] ability to function
independently, appropriately, effectively, and on a sustained
basis.’”

Cunningham, 507 F. App’x at 116 (citing 20 C.F.R. pt.

404, subpt. P, App. 1, § 12.00(C)).

Paragraph C of listing 12.04

requires demonstration of one of the following: 1) repeated and
extended episodes of decompensation; 2) a residual disease process
that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or 3) current
history of one or more years’ inability to function outside a

32

highly supportive living arrangement, with an indication of a
continued need for such an arrangement.

20 C.F.R. pt. 404, subpt.

P, App. 1 § 12.04(C).
The ALJ considered both the B and C criteria.

(R. 14-15.)

Under paragraph B, he reviewed all requirements and found that
Plaintiff did not meet any of them.

(Id.)

He found that Plaintiff

had mild restrictions in his activities of daily living–-though he
complained of tiredness and a lack of motivation, he was employed.
(R. 14.)

In social functioning, the ALJ found that Plaintiff had

mild difficulties–-though he complained of anxiety and difficulty
interacting with others, he testified that his medication helped
reduce his social anxiety and he was able to maintain relationships
with his girlfriend, parents and daughter.

(R. 15.)

The ALJ

concluded Plaintiff had moderate difficulties in concentration,
persistence, or pace–-though he alleged difficulties regarding
focus and concentration due to racing thoughts and difficulty
keeping up with the pace of his work environment, he was able to
perform serial 7's accurately and his treating psychiatrist,
Michael Bowen, M.D., found Plaintiff’s attention and concentration
within normal limits in April 2013.

(Id.)

The ALJ determined that

Plaintiff had experienced no episodes of decompensation.

(Id.)

ALJ Cutter also concluded that Plaintiff had failed to
establish the presence of the paragraph C criteria.

(Id.)

He

noted that he found no support in the record for the existence of

33

any of the criteria.

(Id.)

Plaintiff has failed to meet his burden on this issue in that
he catalogs evidence of record but does not show how the evidence
satisfies the specific listing requirements.

(Doc. 11 at 10-14.)

Conclusory assertions are not enough. Furthermore, certain evidence
cited misstates the record.

For example, Plaintiff states that he

was seen at Lancaster General on February 24, 2012, with complaints
of delusional and psychotic symptoms accompanied by manic symptoms.
(Doc. 11 at 11 (citing R. 399).)

However, as set out above, at the

cited visit Dr. Dorozynsky noted by way of history that Plaintiff
and his mother brought in psychiatric evaluations from 1999 and
Plaintiff acknowledged “having had delusional and psychotic
symptoms at that time accompanied by manic symptoms.”
(emphasis added).)

(R. 399

As 1999 is long before the relevant time

period, any symptoms related to Plaintiff’s bipolar disorder
exhibited then have no relevance to the current disability
analysis.
Plaintiff argues in his reply brief that he meets the
requirements of paragraph B because he has a marked impairment in
social functioning and a marked impairment in maintaining
concentration, persistence or pace.

(Doc. 15 at 1-3.)

Regarding

social functioning, Plaintiff cites an instance during a
psychiatric evaluation in which he reported that he felt anxious,
another instance where he reported at an office visit that he felt

34

anxious in public, and his testimony about experiencing anxiety and
constant mood swings.

(Doc. 15 at 2 (citing R. 35, 226, 409).)

We

conclude this occasional subjective reporting does not undermine
the ALJ’s determination that Plaintiff had mild difficulties in
maintaining social functioning.
Regarding concentration, persistence, or pace, Plaintiff again
points to sporadic subjective reporting.

(Doc. 15 at 2.)

He also

cites Dr. Hart’s conclusion that Plaintiff had a marked restriction
in his ability to respond appropriately to work pressures in a
usual work setting.

(Id.)

The inquiry about concentration,

persistence, or pace under paragraph B is distinct from a form
question about an individual’s ability to respond to work
pressures.

This is exemplified by Dr. Hart’s marked limitation

finding as to work pressures (R. 353) and his specific comment that
Plaintiff’s “concentration should not be an impediment in his
ability to hold down a job” (R. 351).

Thus, we conclude that

Plaintiff has not provided evidence which would undermine the ALJ’s
conclusion that Plaintiff’s mental impairment does not meet the
requirements of listing 12.04.
2.

Evaluation of Opinion Evidence
Plaintiff next argues that the ALJ erred in his evaluation of

opinion evidence in that he did not give appropriate weight to the
opinions of Dr. Dorozynsky, Dr. Hart, and Dr. Diorio.
14-18.)

(Doc. 11 at

We conclude the ALJ did not err in his consideration of

35

opinion evidence.
a.

Dr. Dorozynsky
Plaintiff identifies Dr. Dorozynsky as his treating physician,

asserting that an opinion from a treating physician is entitled to
great or controlling weight.

(Doc. 11 at 14.)

We agree that a

treating physician’s opinion is entitled to great or controlling
weight in some situations, but conclude this is not such a case.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.

See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981)).

The “treating physician rule,” is codified at 20

C.F.R. 404.1527(c)(2), and is widely accepted in the Third Circuit.
Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v.
Brown, 794 F.2d 896 (3d Cir. 1986).

The regulation addresses the

weight to be given a treating source’s opinion: “If we find that a
treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”

2

20 C.F.R. § 404.1527(c)(2).2

20 C.F.R. § 404.1527(c)(2) states in relevant part:
36

“A

cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

2000) (citations omitted); see also Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to

reject the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a

Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
37

treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
The Court of Appeals for the Third Circuit addressed a
plaintiff’s argument that an ALJ failed to give controlling weight
to the opinion of a treating physician in Horst v. Commissioner of
Social Security, 551 F. App’x 41, 46 (3d Cir. 2014) (not
precedential).
“Under applicable regulations and the law of
this Court, opinions of a claimant’s treating
physician are entitled to substantial and at
times even controlling weight.” Fargnoli v.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
Controlling weight is given when a treating
physician’s opinion is “well supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with the other substantial evidence.” 20
C.F.R. § 404.1527(d)(2). “Although the ALJ
may weigh the credibility of the evidence, he
must give some indication of the evidence that
he rejects and his reason(s) for discounting
that evidence.” Fargnoli, 247 F.3d at 43.
551 F. App’x at 46.

Horst noted that neither the ALJ nor the court

needed to rely on the treating physician’s opinion that the
plaintiff was completely disabled: “As an initial matter, ‘the
ALJ–-not treating or examining physicians or State agency
consultants–-must make the ultimate disability and RFC
determinations.”

551 F. App’x at 46 n.7 (quoting Chandler v.
38

Comm’r of Social Sec., 667 F.3d 356, 361 (3d Cir. 2011); citing 20
C.F.R. § 404.1527(d)).

Although it is true that an ALJ’s

credibility judgments alone cannot override a treating physician’s
medical opinion that is supported by the evidence, Morales v.
Apfel, 225 F.3d 310, 310 (3d Cir. 2003), where an ALJ relies “upon
more than personal observations and credibility determinations in
discounting the treating physician’s finding of disability,” the
ALJ does not run afoul of relevant law.

Drejka v. Commissioner of

Social Security, 61 F. App’x 778, 782 (3d Cir. 2003) (not
precedential) (distinguishing Morales v. Apfel, 225 F.3d 310, 318
(3d Cir. 2000) (holding that an ALJ’s credibility judgments alone
cannot override a treating physician’s medical opinion that is
supported by the evidence)).

Drejka also noted that where the

treating physician made the determination the plaintiff was
disabled only in a form report, the Third Circuit Court has
characterized such a form report, “in which the physician’s only
obligation was to fill in the blanks, as ‘weak evidence at best.’”
61 F. App’x at 782 (quoting Mason v. Shalala, 994 F.2d 1058, 1065
(3d Cir. 1993)).
As set out above, Dr. Drozynsky completed a “Disability
Information for Court” form from York County Domestic Relations
Section on April 23, 2012.

(R. 416.)

He opined that Plaintiff was

fully disabled with limitations identified as tired and lack of
motivation, and that Plaintiff would be able to return to work in
39

July 2012.

(Id.)

The ALJ gave no weight to Dr. Dorozynsky’s

opinion because he provided no support for his assessment, the
assessment was not supported by the evidence of record, and his
determination that Plaintiff was “fully disabled” is a
determination reserved for the Commissioner.

(R. 19.)

In his supporting brief, Plaintiff does not point to evidence
contradicting the ALJ’s conclusion, nor does he cite to evidence of
record supporting Dr. Dorozynsky’s assessment.3

(Doc. 11 at 14.)

Plaintiff does not refute the ALJ’s assertion that Dr. Dorozynsky
did not provide support for his assessment.
Importantly, even if Dr. Dorozynsky’s opinion had been
accorded some weight, it would not support a conclusion that
Plaintiff was disabled within the meaning of the Act–-the inability
to engage in substantial gainful activity must have lasted or be
expected to last for a continuous period of not less than twelve
months, 42 U.S.C. § 423(d)(1)(A), and Dr. Dorozynsky’s April 23,
2012, opinion that Plaintiff would be able to return to work in
July 2012 (R. 416) does not suggest disability for the requisite
time period.

Furthermore, we find that the ALJ’s assessment of Dr.

Dorozynsky’s opinion is supported by the record.

Therefore, under

the law of the Third Circuit, we find no error in the ALJ’s

3

In the portion of his brief discussing the claimed error
regarding Dr. Dorozynsky, Plaintiff asserts that “the ALJ erred by
according no weight to Dr. Hartman’s opinion.” (Doc. 11 at 15.) As
there is no evidence from “Dr. Hartman” in the medical record, we
assume this is a drafting error.
40

decision to accord no weight to Dr. Dorozynsky’s opinion expressed
in the form report that Plaintiff was fully disabled.
b.

Dr. Hart
Plaintiff next asserts that the ALJ did not accord appropriate

weight to the opinion of Dr. Hart, a consultative examiner.
11 at 15.)

(Doc.

We disagree.

The ALJ explained the reasons for the weight attributed--Dr.
Hart’s finding was based on Plaintiff’s own less than credible
subjective complaints, and the marked limitation was inconsistent
with Dr. Hart’s own objective clinical findings, including a GAF
assessment of 60.

(R. 19.) (Id.)

Plaintiff’s argument that the use of GAF scores are now of
questionable relevance and the ALJ erred by citing it (Doc. 11 at
16) does not support the claimed error.

As noted by Defendant,

although the GAF scale was eliminated from the Diagnostic and
Statistical Manual of Mental Disorders (DSM-5), “this does not
preclude an ALJ from determining whether a GAF score is
inconsistent with other evidence.”

(Doc. 13 at 26 n.7 (citing

Forster v. Colvin, Civ. A. No. 3:13-CV-2699, 2015 WL 1608741, at *9
n.2 (M.D. Pa. Apr. 10, 2015)).)
Plaintiff also criticizes the ALJ’s treatment of Dr. Hart’s
opinion on the basis that it is inconsistent with the ALJ’s
determination that Plaintiff had an unsuccessful work attempt
because he was unable to keep up with the fast-paced environment.

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(Doc. 11 at 17 (citing R. 13, 19).)

Specifically Plaintiff

compares the ALJ’s step one gainful activity notation regarding an
unsuccessful work attempt with Dr. Hart’s notation that Plaintiff
made mistakes under pressure and was yelled at while at work,
Plaintiff stating the ALJ did not find the notation persuasive.
(Id.)
This argument is not persuasive.

First, the step one gainful

employment inquiry is distinct from the RFC assessment.

Second,

the ALJ did not find at step one that Plaintiff left his job
because he was unable to keep up with the fast-pace:

he recorded

only that Plaintiff alleged that was the reason he left his job.
(R. 13.)

Third, there is no inconsistency in that the ALJ rejects

Dr. Hart’s marked limitation finding in part because it is based on
Plaintiff’s subjective reporting (R. 19) and there is no evidence
suggesting that Plaintiff’s reporting is objectively verified.
c.

Dr. Diorio
Plaintiff maintains the ALJ improperly assigned “significant

weight” to Dr. Diorio’s opinion because, as a State Agency
psychological consultant, she was a non-examining, non-treating
source.

(Doc. 11 at 17.)

We disagree.

Plaintiff argues that the ALJ erred because SSR 96-6p provides
that a State Agency opinion can be given greater consideration than
a treating source opinion only under special circumstances which
are not present here.

(Doc. 11 at 17-18.)

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We need not parse the

guidance on this issue set out in SSR 96-6p, 1996 WL 374180
(S.S.A.), because we have determined that the ALJ properly afforded
no weight to Dr. Dorozynsky’s brief form opinion and Plaintiff
cites no other treating source opinion of record.

Therefore, no

valid treating source opinion was given less weight than that of
the State Agency consultant.4
3.

Plaintiff’s Credibility
Plaintiff’s final claimed error is that the reasons given by

the ALJ for finding Plaintiff not credible as to the severity of
his limitations are not supported by substantial evidence.
11 at 18.)

(Doc.

We disagree.

Plaintiff seems to assert that the ALJ dismissed Plaintiff’s
credibility without performing the evaluation required by SSR 967p.

(Doc. 11 at 18.)

He does not develop this argument but

proceeds to cite four specific errors.

(Id. at 18-20.)

We will

address each of these.
First, Plaintiff cites the ALJ’s determination that

4

Though not cited by the ALJ as opinion evidence, we also
find it significant that Dr. Bowen, Plaintiff’s last treating
source of record, when asked by Plaintiff to provide a letter for
the purpose of disability or child support on April 3, 2013, did
not assess any functional limitations but stated that Plaintiff was
prescribed medications that were deemed necessary to control his
symptoms and maintain functioning. (R. 394, 443.) The only other
information provided in the letter was that Plaintiff had been seen
that date, he was treated for bipolar disorder and had regular
appointments in the clinic. (R. 396.)

43

Plaintiff’s mood is effectively stabilized with proper medications,
asserting the finding does not “automatically indicate that
McElhenny lacks mental health symptoms or limitations” and the ALJ
cites no legal authority in support of his assertion.
18-19 (citing R. 19).)

(Doc. 11 at

This argument does not point to error in

that the ALJ did not find that Plaintiff lacked mental health
symptoms or limitations-–effective stabilization does not equate
with absence, and, as discussed in conjunction with Plaintiff’s
claimed error regarding listing 12.04, the ALJ in fact attributed
some limitations to Plaintiff’s mental impairment.

(See, e.g., R.

14-15.)
Second, Plaintiff argues the ALJ improperly assessed
Plaintiff’s testimony about his hobbies.

(Doc. 11 at 19.)

Assuming that the ALJ’s interpretation of Plaintiff’s testimony
about his hobbies is less than completely accurate, it is only one
example of inconsistency cited by the ALJ and would not undermine
the ALJ’s general assertion.

(See R. 20.)

The ALJ also cites the

additional symptoms alleged in response to a question asked by
Plaintiff’s attorney at the ALJ hearing as well as Plaintiff’s
inconsistent reporting regarding his use of heroin.

(Id.)

Plaintiff does not criticize these bases for the ALJ’s
inconsistency finding.

Therefore, Plaintiff’s claimed inaccuracy

is not adequate to find the ALJ’s credibility determination error.
Third, Plaintiff finds error in the ALJ’s consideration of the

44

side effects of Plaintiff’s medications.

(Doc. 11 at 19)

Plaintiff’s citation to Plaintiff’s testimony about the side
effects of his medication is less than completely accurate.
Plaintiff did testify that Risperdal causes light-headedness and
sleepiness and Wellbutrin makes him jittery.

(Id. (citing R. 35).)

However, Plaintiff qualified the effects of both: he experiences “a
little” light-headedness and sleepiness with Risperdal; “sometimes”
the Wellbutrin makes him jittery.

(R. 35.)

Plaintiff does not

further develop his argument in support of this claimed error.

As

presented, we find it without merit.
Fourth, Plaintiff asserts that the definition of a “moderate”
restriction used by the ALJ is not consistent with the SSA
definition.

(Doc. 11 at 19-20 (citing POMS DI 24510.063(B)(2)).)

Any difference in the definition provided by the ALJ to the VE and
the definition cited by Plaintiff would not be cause for remand in
that the ALJ directly instructed the VE on the meaning of
“moderate” regarding the “moderate restriction” included in the
hypothetical the ALJ posed to the VE.

(R. 46.)

V. Conclusion
For the reasons discussed above, we find no basis for remand
in the errors claimed by Plaintiff.

Therefore, Plaintiff’s appeal

of the Acting Commissioner’s denial of benefits (Doc. 1) is denied.
An appropriate Order is filed simultaneously with this Memorandum.

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S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: July 2, 2015

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