Passaretti v. Commissioner of Social Security

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we conclude Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 9/24/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD A. PASSARETTI, JR.,

:
:CIVIL ACTION NO. 3:15-CV-520
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”) under Title II of
the Social Security Act.

(Doc. 1.)

In the November 3, 2011,

Disability Report, Plaintiff alleged disability due to autoimmune
disorder, hepatitis C, sarcoidosis, gastroenteritis, sleep apnea,
neuropathy, diabetes, rheumatoid arthritis, hypertension, WPW
(Wolfe-Parkinson-White), asthma, lyme disease, and bronchitis.
186.)

Plaintiff originally identified his onset date as September

11, 2001, and later amended it to October 19, 2011.
1.)

(R.

(Doc. 12 at

The Administrative Law Judge (“ALJ”) who evaluated the claim,

Jarrod Tranguch, concluded that Plaintiff’s severe impairments of
sarcoidosis with dyspnea, diabetes, obstructive sleep apnea, right
shoulder derangement status post-surgical intervention, depressive
disorder, and anxiety disorder did not alone or in combination with
other impairments meet or equal the listings.

(R. 16-22.)

The ALJ

found that Plaintiff had the residual function capacity (“RFC”) to
perform light work with certain nonexertional limitations and that
he was capable of performing jobs that existed in significant
numbers in the national economy.

(R. 21-32.)

The ALJ therefore

found Plaintiff was not disabled under the Act from September 11,
2001, through the date of the decision, May 7, 2013.

(R. 31.)

With this action, Plaintiff asserts that the case must be
remanded because the ALJ’s step 5 determination is not supported by
substantial evidence.

(Doc. 12 at 15.)

He specifically identifies

two errors in the ALJ’s decision: “[t]he ALJ erred in failing to
assign appropriate weight to the medical opinions of Plaintiff’s
treating physician and the Agency’s own examining specialist both
of whom assessed marked limitations in Mr. Passaretti’s functioning
far greater than those found in the ALJ’s mental RFC” (Doc. 12 at
3); and “[t]he ALJ failed to properly consider Mr. Passaretti’s
exemplary work history as part of his credibility analysis” (id.).
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 October 19, 2011, Plaintiff filed an application for DIB.

(R. 13.)

As noted above, Plaintiff initially alleged disability

beginning on September 11, 2001, due to a number of physical

2

conditions.

(Doc. 12 at 1; R. 186.)

denied on February 29, 2012.

The claim was initially

(R. 13.)

Plaintiff filed a request

for a review before an ALJ on April 9, 2012.

(Id.)

2013, Plaintiff appeared and testified at a hearing.

On May 3,
(Id.)

Prior

to the hearing, Plaintiff amended his onset date to October 19,
2011.

(R. 226.)

Plaintiff appeared at the hearing with his

attorney, Iyla O’Brien.

(R. 39.)

Keating also testified.

(Id.)

Vocational Expert (“VE”) Gerald

ALJ Jarrod Tranguch issued his

decision on August 23, 2013, finding that Plaintiff was not
disabled under the Social Security Act through the date of the
decision.

(R. 31.)

On October 17, 2013, Plaintiff requested a

review with the Appeal’s Council.

(R. 7-9.)

The Appeals Council

issued its decision on January 13, 2015, denying Plaintiff’s
request.

(R. 1-6.)

On March 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 June 5, 2015.

(Docs. 10, 11.)

brief on July 20, 2015.

Plaintiff filed his supporting

brief on August 24, 2015.

(Doc. 12.)
(Doc. 13.)

Defendant filed her opposition
With the filing of

Plaintiff’s reply brief (Doc. 14) on September 8, 2015, this matter
became ripe for disposition.
B.

Factual Background
Plaintiff was born on February 25, 1970.

3

(R. 30.)

He was

forty-one years old on the alleged disability onset date of October
19, 2011.

Plaintiff has a high school education.

(R. 49.)

In the

October 24, 2011, Disability Report, he reported that he stopped
working on October 19, 2011, because of his conditions.

(R. 186.)

Plaintiff has past relevant work as a utility company mechanic
aide.

(R. 28, 72.)

He said that he had worked for Con-Ed in that

capacity for twenty-two years and was terminated due to physical
restrictions as a result of 9/11.

(R. 638.)

After he was

terminated, Plaintiff collected unemployment compensation benefits.
(R. 875, 986.)
1.

Impairment Evidence
Although Plaintiff has multiple physical impairments, he does

not object to the ALJ’s review of the medical evidence related to
these impairments.

Rather, his first objection relates only to the

ALJ’s consideration of his mental impairments.

Therefore, I review

evidence related Plaintiff’s mental impairments during the relevant
time period.
On February 3, 2012, Plaintiff saw Sara J. Cornell, Psy.D.,
for a psychological evaluation, having been referred by the Bureau
of Disability Determination.

(R. 637.)

Dr. Cornell observed that

Plaintiff was alert and oriented, with appropriate affect and
depressed mood.

(Id.)

His speech was spontaneous, clear,

coherent, logical, and appropriate, and he had no evidence of a
formal thought disorder.

(Id.)

Plaintiff had good attention and

4

concentration, he interacted appropriately with Dr. Cornell, and he
appeared to have appropriate judgment and insight into his
difficulties.

(Id.)

Plaintiff provided a detailed history and

description of his mental status.

(Id.)

He related his depressive

symptoms to the September 11, 2001, World Trade Center attacks
which he witnessed (his employer, Con-Ed, deployed him to that
area). (Id.)

He said the symptoms included sadness, tearfulness,

lethargy, pessimistic thinking, low self-esteem, hopelessness,
social isolation, anxiety, fear, and panic attacks.

(Id.)

Plaintiff stated that he experienced symptoms of post-traumatic
stress disorder, including hyper-vigilance, exaggerated startle
response, as well as nightmares and flashbacks.

(Id.)

He also

stated that he had feelings that something frightening will happen,
he locked his house doors with multiple locks, and felt insecure
and in danger. (R. 638.)

Plaintiff stated that he planned to start

counseling in the near future.

(Id.) Dr. Cornell stated that

Plaintiff denied any hallucinations, delusions, or bizarre
behaviors.

(Id.)

She also reported that he had difficulty

providing examples as to the likely outcome of his behaviors and he
could not perform tests of counting and seriation.

(Id.)

Dr.

Cornell diagnosed Plaintiff with chronic post-traumatic stress
disorder, major depressive disorder, panic disorder with
agoraphobia, and a GAF of 30.

(R. 639.)

In summary, Dr. Cornell

stated that Plaintiff “experiences depressive symptoms, symptoms of
5

anxiety, and symptoms indicative of post traumatic stress
disorder.”

(Id.)

She strongly recommended outpatient counseling

and stated that Plaintiff’s prognosis at the time was poor.

(Id.)

In a questionnaire completed on the same date, Dr. Cornell
opined on the basis of Plaintiff’s self-reporting and clinical
assessment that Plaintiff had marked difficulties in the areas of
carrying out detailed instructions, making judgments on simple
work-related decisions, interacting appropriately with supervisors
and co-workers, responding appropriately to work pressures in a
ususal work setting, and responding appropriately to changes in a
routine work setting.

(R. 634.)

She also noted that Plaintiff’s

daily living skills were affected in that he could not complete
tasks.

(R. 635.)

On February 10, 2012, Plaintiff was seen at the Mt. Sinai
Doctors World Trade Center Phsychiatry Department by Agnieszka A.
Wisniewska, M.D..

(R. 1031-37.)

Plaintiff reported that another

doctor recommended that he seek mental health treatment because he
was feeling a lot of anxiety related to fears which began after
9/11.

(R. 1031.)

He said he was seeking treatment because he had

been feeling “very depressed” since losing his job in October 2011.
(Id.)

Though Plaintiff had been on Zoloft in 2004-2005 (prescribed

by a rheumatologist), he was not taking any psychotropic medication
at the time of the evaluation, had never been in therapy, and never
received inpatient treatment.

(R. 1033.)

6

Dr. Wisniewska

determined that Plaintiff’s mood and PTSD symptoms required further
assessment.

(Id.)

Dr. Wisniewska also noted that records from

2004 indicated that Plaintiff had reported “feeling appropriately
upset when reminded about 9/11, but does not feel that his
reactions are severe or have a negative impact on his life.”

(Id.)

On examination, Plaintiff showed a depressed mood, constricted
affect range, and tense affect.

(R. 1035.)

examination was otherwise normal.

The mental status

(Id.)

On February 23, 2012, James Vizza, Psy.D., reviewed evidence
and concluded that Plaintiff had anxiety and depressive disorders,
had mild restrictions of activities of daily living, moderate
restrictions in maintaining concentration, persistence or pace, and
no restrictions in maintaining social functioning.

(R. 110-11.)

Dr. Vizza noted moderate limitations in the areas of his ability to
make simple work-related decisions, to complete a normal workday
and workweek without interruptions from psychologically based
symptoms, and his ability to respond appropriately to changes in
the work setting.

(R. 115.)

Dr. Vizza noted that Plaintiff was

not receiving any mental health services at the time and that Dr.
Cornell’s assessment was an overestimation of Plaintiff’s
limitations and was not consistent with the totality of evidence in
the file.

(R. 112, 116.)

Plaintiff again saw Dr. Wisniewska on April 22, 2012, at which
time Plaintiff’s mental status examination was normal but for

7

anxious mood, constricted affect range and anxious affect.
1028-29.)

(R.

Differential diagnoses included “Adjustment Disorder

with Mixed Anxiety and Depressed Mood,” and “Personality Disorder.”
(R. 1029.)

Plaintiff’s “current GAF” was assessed to be 55-60 with

the same noted as the highest GAF in the past year.

(Id.)

On May 1, 2012, E. Neil Schachter, M.D., completed an “Anxiety
Related Disorder” form sent to him by Plaintiff’s attorney.
646-50.)

(R.

Dr. Schacter noted that Plaintiff had generalized

persistent anxiety, persistent fear, recurrent obsessions or
compulsions, and intrusive recollections of a traumatic experience
that cause marked distress, but Plaintiff did not have recurrent
severe panic attacks.

(R. 648.)

He noted that Plaintiff had

marked limitations in all categories: activities of daily living,
maintaining social functioning, deficiencies of concentration,
persistence or pace, and episodes of deterioration or
decompensation in a work or work-like setting.

(R. 649.)

On May 21, 2012, Plaintiff was seen at The ReDCo Group,
Behavioral Health Services, for a psychological evaluation.
872-79.)

(R.

Plaintiff had been referred because of depression and

anxiety, stating that he had been increasingly depressed and
anxious since he lost his employment (in October 2011) and he still
suffered from the effects of his 9/11 experience.

(R. 872.)

His

mental status examination showed that he was slightly tense, his
facial expression occasionally showed anxiety, fear or apprehension

8

suggesting depression or sadness, his general movements were
slightly restless or fidgety, and he occasionally felt fear,
anxiety or apprehension and depression, sadness, or hopelessness.
(R. 876-77.)

Plaintiff showed no signs of perception problems or

thinking with the exception that he had slightly racing thoughts.
(R. 877-78.)
GAF of 50.

The diagnostic impression included “MDD PTSD” and a
(R. 879.)

It was recommended that Plaintiff attend

individual therapy as scheduled.

(Id.)

In July 2012, Plaintiff reported to Dr. Wisniewska that he was
“stressed out and depressed,” with complaints of being moderately
depressed on most days during the preceding month.

(R. 1021.)

His

mental status was basically the same as shown with Dr. Wisniewska’s
previous examinations except that his thought content showed
depressive cognitions and ruminations.
prescribed Lexapro.

(R. 1023.)

Plaintiff was

(R. 1024.)

Muhamad Aly Rifai, M.D., of the ReDCo Group completed another
psychiatric evaluation on August 30, 2012.

(R. 870-71.)

Plaintiff

had been on Lexipro for two months at the time of the evaluation
and his wife thought Plaintiff was doing better.

(R. 870.)

Dr.

Rifai’s diagnosis was “Mood disorder NOS, PTSD” had he assessed a
GAF of 55, noting a GAF of 56 for the past year.

(R. 871.)

Recommendations included continuing Lexapro, adding Buspar to help
with anxiety and mood, and both group and individual therapy.
(Id.)

9

Dr. Wisniewska noted that Plaintiff reported some improvement
in October and November 2012.

(R. 1003, 1008.)

On Janaury 9, 2013, Melissa M. Dudas, D.O., of Mt. Sinai saw
Plaintiff, having taken over his care from Dr. Wisniewska.
990.)

(R.

Plaintiff reported that the therapy he was receiving in

Pennsylvania and taking medication had made things easier.

(R.

991.)

Plaintiff reported ongoing family and financial problems.

(Id.)

Plaintiff’s mental status examination was normal except for

“frustrated” mood, anxious affect, and ruminations in thought
content.

(R. 993.)

Dr. Dudas diagnosed major depressive disorder

and recommended continuation of Lexapro as well as continuation of
therapy with Rita Mangus and Dr. La Fai at ReDCo Group.

(R. 993-

94.)
On February 13, 2013, Plaintiff again saw Dr. Dudas.
985.)

(r.

Plaintiff stated that he was doing well despite chaotic

family issues and his therapy in Pennsylvania was helpful.
986.)

(R.

Mental status examination showed that his mood was

“surprisingly good,” and his affect anxious.

(R. 988.)

Plaintiff

was directed to continue Lexapro and therapy with Ms. Mangus.
(Id.)
On March 21, 2013, Plaintiff again reported to Dr. Dudas that
he was doing well and he was feeling calm on Lexapro and been able
to deal with stressors at home.

(R. 981.)

Dr. Dudas noted that

symptoms related to Plaintiff’s major depressive disorder were in

10

remission and, although he still had some anxiety and PTSD-type
symptoms, overall he was managing well.
2.

(R. 983.)

Hearing Testimony
May 3, 2013, Hearing testimony related to the mental component

of Plaintiff’s claim indicates that Plaintiff testified he was
seeing someone at the World Trade Center group about once a month
and a therapist about once a week.

(R. 62-63.)

Plaintiff said he

was taking Lexapro and it seemed to be helping, as had the therapy.
(R. 63-64.)

Plaintiff testified that since taking Lexapro and

going to therapy, he was more calm, could think more clearly, and
did not fly off the handle.

(R. 65.)

He also said he did not have

difficulties with memory or concentration.
3.

(Id.)

ALJ Decision
By decision of August 23, 2013, ALJ Tranguch determined that

Plaintiff was not disabled as defined in the Social Security Act
during the relevant time period.

(R. 31.)

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 (SGA) since
October 19, 2011, the amended alleged
disability onset date (20 CFR 404.1571
et seq.).

3.

The claimant has the following severe
impairments: sarcoidosis with dyspnea;
diabetes; obstructive sleep apnea (OSA);
right shoulder derangement status post11

surgical intervention; depressive
disorder; and anxiety disorder (20 CFR
404.1520(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 and 404.1526).

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b)
further limited as follows: the claimant
can lift and/or carry 20 pounds
occasionally and 10 pounds frequently;
can stand and/or walk for up to 6 hours
in an 8 hour workday and sit for at
least 6 hours in an 8 hour workday; can
occasionally engage in pushing and
pulling with his right upper extremity
including operating levers or hand
controls; can occasionally reach
forward, laterally, and overhead with
his right upper extremity; can
occasionally climb stairs and use ramps
but should avoid climbing ladders ropes
or scaffolds; should avoid concentrated
exposure to extreme cold, extreme heat,
wet or slippery conditions, high
humidity, and potential pulmonary or
respiratory irritants such as fumes,
odors, dusts, gasses, pollen, and poor
ventilation; should avoid hazardous
working conditions involving moving
machinery or unprotected heights; is
capable of performing work that is
generally described as unskilled
involving simple routine tasks; and can
perform work that is generally
considered low stress involving only
occasional simple decision making and
only occasional changes in the work
setting or work duties.

12

6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565).

7.

The claimant was born on February 25,
1970 and was 31 years old, which is
defined as a younger individual age 1849, on the alleged disability onset date
(20 CFR 404.1563).

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).

9.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569 and
404.1569(a)).

11.

The claimant has not been under a
disability, as defined in the Social
Security Act, from September 11, 2001,
through the date of this decision (20
CFR 404.1520(g)).

(R. 15-31.)
In making the determination that Plaintiff’s severe mental
impairments of depressive disorder and anxiety disorder did not
meet or equal the listings (R. 15, 17-21), the ALJ gave limited
weight to the opinions of Dr. Cornell and Dr. Schachter regarding
their marked limitation findings.
13

(R. 19.)

Dr. Cornell’s opinion was given little weight because it was a
one-time examination which did not produce particularly adverse
mental status findings and the findings did not support the severe
degree of incapacity she noted.

(R. 19-20.)

The ALJ specifically

noted that Dr. Cornell’s assessed GAF of 30 was “indicative of an
individual likely to be influenced by delusions or hallucinations
or to have a serious impairment with regard to communications or
judgment or have an inability to function in all areas.”

(R. 19.)

ALJ Tranguch concluded that Dr. Cornell’s opinions were largely
based on Plaintiff’s subjective reporting and the degree of
incapacity she found was not consistent with other record evidence.
(R. 20.)
ALJ Tranguch afforded little weight to Dr. Schachter’s opinion
because Dr. Schachter is not a mental health specialist and he
provided no objective findings in support of his opinion.

(R. 20.)

The ALJ also concluded that Dr. Schachter overestimated Plaintiff’s
limitations when viewed in the context of the totality of record
evidence.

(Id.)

In discussing the basis for his RFC finding, the ALJ reviewed
the records from the mental health providers at Mt. Sinai where
Plaintiff began treating in February 2012 and was most recently
seen in March 2013.

(R. 26-27.)

He noted that the records show he

was treated for major depressive disorder and PTSD.

(R. 26.)

Tranguch found it significant that Plaintiff’s mental status

14

ALJ

examination findings remained relatively stable and benign
throughout the time period he was treated at Mt. Sinai and there
was noted improvement with consistent medication management.

(Id.)

The ALJ also noted recorded GAF scores of 55-60 in April of 2012.
(Id.)
ALJ Tranguch also reviewed Plaintiff’s treatment with ReDCo
Group.

(R. 27.)

The ALJ discussed Plaintiff’s diagnosis and

mental status examination findings as well as GAF of 50 in May 2012
and 55 in August 2012.

(Id.)

The ALJ explained the weight attributed to various opinions,
including GAF scores.

(R. 28-29.)

Having concluded that Dr.

Cornell’s assessed GAF score of 30 in February 2012 was not
consistent with or supported by her own exam, the ALJ found it
significant that the remaining GAF scores from different providers
were relatively consistent in assessing only moderate limitations
which would not preclude all work.

(R. 28-29.)

In considering Dr. Vizza’s February 23, 2012, opinion, the ALJ
noted that he gave great weight to the State Agency psychology
consultant opinion that Plaintiff’s affective and anxiety disorders
caused mild to moderate limitations because it was consistent with
the record as a whole, including that provided by the treating
mental health providers.

(R. 29.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to

15

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
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

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).
16

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
fifth step of the process when the ALJ found that Plaintiff was
capable of performing work that existed in significant numbers in
the national economy.

(R. 30.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
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).
17

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,
“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

18

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.

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,
19

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

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
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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

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 case must be remanded
21

for further consideration for two reasons: “[t]he ALJ erred in
failing to assign appropriate weight to the medical opinions of
Plaintiff’s treating physician and the Agency’s own examining
specialist both of whom assessed marked limitations in Mr.
Passaretti’s functioning far greater than those found in the ALJ’s
mental RFC” (Doc. 12 at 3); and “[t]he ALJ failed to properly
consider Mr. Passaretti’s exemplary work history as part of his
credibility analysis” (id.).

We do not find that the ALJ erred on

either basis.
1.

Medical Opinions
Plaintiff asserts that the ALJ should have accorded more

weight to the opinions of Dr. Schachter and Dr. Cornell because
they were based on clinical observations and long term treatment
relationships.

(Doc. 12 at 3.)

This claimed error is without

merit for several reasons, including that neither of these
professionals treated Plaintiff on a long-term basis for mental
health problems.

Dr. Schachter was not a mental health specialist

and no evidence shows he was treating Plaintiff for mental health
difficulties during the relevant time period.

Dr. Cornell was a

one-time examining consultant and the ALJ adequately explained why
he found her conclusions inconsistent with her own examination.
Plaintiff cites multiple treatment notes from various mental
health providers, asserting that Dr. Schachter’s opinion and Dr.
Cornell’s opinion are consistent with the underlying evidence.

22

(Doc. 12 at 5-6.)

He does not demonstrate why this is so; he does

not show how the overall benign findings, limited treatment, and
Plaintiff’s own reports about the effectiveness of treatment are
contradicted by the cited evidence.
Though Plaintiff’s claimed error is primarily couched in
generalities, he specifically asserts that the ALJ did not give
consideration to the factors found in 20 C.F.R. § 404.1527 when he
failed to accord Dr. Schacter’s opinion treating physician
deference and Dr. Cornell’s opinion deference as an examining
specialist.

(Doc. 12 at 8.)

20 C.F.R. § 404.1527 explains how medical opinion evidence in
the record is evaluated.

Section 404.1527(c) sets out the weight

accorded medical opinions.

The examining and treating relationship

are considered as well as the length of the relationship,
examination frequency, and the nature of the treating relationship.
20 C.F.R. § 404.1527(c)(1), (c)(2).

The supportability of an

opinion and provider’s area of specialty are also considered.

20

C.F.R. § 404.1527(c)(3)-(c)(5).
Here the ALJ clearly considered appropriate factors.
21, 23, 26-29.)

(R. 19-

As set out in the review of his Decision above,

the ALJ considered the examining and treating relationships, areas
of specialization, nature of the treatment provided, the
supportability of the opinions, and the consistency of opinions
with the record as a whole.

(Id.)

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Plaintiff specifically contends that the ALJ erred in
discrediting Dr. Cornell’s opinion because he found that the
opinion was premised on Plaintiff’s subjective complaints.
12 at 9.)

(Doc.

This contention is without merit in that Dr. Cornell

acknowledged that her assessments were based in part on Plaintiff’s
subjective reporting (R. 634-35), and her “clinical assessment” was
based on one visit where Plaintiff alone provided the reason for
his evaluation, the history of his illness and treatment, and his
circumstances and general functioning.

(R. 627-38.)

Importantly,

ALJ Tranguch concluded that Dr. Cornell’s opinion that Plaintiff
had moderate to marked limitations due to his mental impairments
and assessed GAF of 30 were “not consistent with or supported by
the objective findings reported by Dr. Cornell based on her exam”
and not consistent with or supported by other evidence of record
discussed in the Decision.

(R. 28.)

Plaintiff’s criticism of the ALJ’s reliance on Dr. Vizza’s
opinion is also unavailing.

Plaintiff avers that great weight

should not have been afforded the non-examining source opinion in
that the ALJ “made no effort to overcome the clear primacy of the
treating source evidence in this case.”

(Doc. 12 at 11.)

Because

neither Dr. Cornell nor Dr. Schachter were mental health treating
sources, their opinions were not entitled to the treating source
deference set out in 20 C.F.R. § 404.1527(c)(2).
Plaintiff’s

further contention that the ALJ improperly relied

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on Dr. Vizza’s February 2012 opinion because it was outdated and
failed to consider all relevant medical evidence may have some
facial appeal but, in the context of the mental health evidence of
record, reliance on the State Agency consultant was not error.
Although it is obvious that Dr. Vizza’s February 2012 opinion
predates Dr. Schachter’s opinion and Mt. Sinai treatment notes, Dr.
Schacter’s opinion was separately assessed and the Mt. Sinai notes
were clearly considered.

(R. 20, 26-29.)

Significantly, the ALJ

concluded that Dr. Vizza’s opinion was consistent with the “record
evidence as a whole including the evidence provided by the
clamiant’s treating mental health providers” (R. 29), i.e., the Mt.
Sinai doctors who evaluated and treated Plaintiff.

Of further

significance is the fact that Plaintiff began treating at Mt. Sinai
for his mental health problems beginning the same month Dr. Vizza
provided his consulting opinion and at no time did these providers
find limitations/problems equivalent to the severity assessed by
Dr. Cornell and Dr. Schachter.
Plaintiff’s final contention is that the ALJ needed additional
information to support his findings and, pursuant to SSR 12-2p and
20 C.F.R. § 404.1520b(c)(1) should have sought additional
information.

(Doc. 12 at 16-17.)

These provisions apply only if

there is insufficient evidence or, after weighing the evidence, the
ALJ cannot reach a conclusion.

See 20 C.F.R. § 404.1520b(c)(1).

They do not apply if the ALJ considers the record adequate to make

25

a decision.

In this case, the ALJ noted the significance of the

consistency of mental status examinations and findings. (See, e.g.,
R. 26, 29.)

ALJ Tranguch expressed no concern about insufficient

evidence and we find no basis to do so.
Our review of the evidence and the ALJ’s Decision shows that
the ALJ did not substitute his lay opinion for that of medical
professionals and Plaintiff’s argument to the contrary is without
merit.

Therefore, Plaintiff’s claimed error that the ALJ

improperly weighed the medical evidence is not cause for remand.
2.

Work History
Plaintiff’s second claimed error is that the “ALJ failed to

properly consider Mr. Passaretti’s exemplary work history as part
of his credibility analysis.”

(Doc. 12 at 3.)

We conclude the ALJ

did not err on this basis.
Although a plaintiff with a long work history may be entitled
to consideration of that history in the assessment of his
credibility, Dobrowolsky, 606 F.2d at 409, Plaintiff cites no
authority that failure to do so is error.

As argued by Defendant,

a Plaintiff with a long work history is not automatically entitled
to have his complaints credited.

(Doc. 13 at 26 (citing Birtig v.

Colvin, Civ. A. No. 14-565, 2014 WL 5410645, at *10 (W.D. Pa. Oct.
23, 2014) (“ . . . an ALJ is not required to equate a long work
history with enhanced credibility, particularly where . . . the ALJ
found that the Plaintiff’s claimed limitations during the relevant

26

time period were not supported by the medical evidence of
record.”)).)

Birtig specifically noted that where an ALJ has found

that the plaintiff’s claimed limitations were not supported by the
medical evidence of record, an ALJ is not required to equate a long
work history with enhanced credibility.

2014 WL 5410645, at *10

(citing Polardino v. Colvin, 2013 WL 4498981, at *5 (W.D. Pa.
2013)).
Here the ALJ recognized that Plaintiff had a long work
history.

(R. 16.)

He thorougly set out the bases upon which he

concluded that the record evidence failed to support Plaintiff’s
alleged degree of incapacity.

(R. 24-30.)

Importantly, Plaintiff

does not argue that the ALJ erred in assessing the medical evidence
related to his physical impairments.

Therefore, we cannot conclude

that the ALJ erred by failing to properly consider Plaintiff’s work
history.
V. Conclusion
For the reasons discussed above, we conclude Plaintiff’s
appeal is properly denied.

An appropriate Order is filed

simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: September 24, 2015

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