Brown v. Colvin
Filing
18
MEMORANDUM (Order to follow as separate docket entry)For all the foregoing reasons, the Court rejects all three of the Plaintiffs assignments of error. Accordingly, the Commissioners decision in this matter will be upheld. An Order consistent with this determination will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 4/14/16. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Sherrie L. Brown
:
Plaintiff
:
V.
: (Judge Richard P. Conaboy)
Carolyn W. Colvin
Acting Commissioner of
Social Security
:
Defendant `
Case No. 3:15-CV-1758
:
:
_________________________________________________________________
Memorandum
We consider here Plaintiff Sherrie L. Brown’s appeal from an
adverse ruling of the Social Security Administration (“SSA”) dated
July 9, 2015.
The SSA’s ruling of July 9, 2015 upheld the prior
decision of one of its administrative law judges to deny
Plaintiff’s application for Supplemental Security Income Benefits
(“SSI”).
The parties have fully briefed (Docs. 15, 16, and 17)
their positions and this matter is now ripe for disposition.
I.
Procedural Background.
Plaintiff filed her SSI application on August 23, 2012.
alleges an onset date of October 1, 2008.
She
Her claim was initially
denied at the administrative level in December of 2012 whereupon
she filed a written request for a hearing before an ALJ.
afforded that hearing on January 29, 2014.
On February 27, 2014
the ALJ issued a written decision denying Plaintiff’s SSI
1
She was
application.
The ALJ’s decision was ratified by the Appeals
Council on July 9, 2015 and thus became a final decision of the
SSA.
Plaintiff filed her complaint in timely fashion with this
Court on September 9, 2015.
She contends that the SSA’s Findings
of Fact and Conclusions of Law are unsupported by substantial
evidence and contrary to law.
(Doc. 1, ¶ 8).
Plaintiff requests
that this Court remand this case for further proceedings and award
attorney’s fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412.
II.
Factual Background.
A.
Testimony Before the ALJ.
Plaintiff Brown’s testimony may be summarized as follows. At
the time of her hearing (January 29, 2014) she had been out of work
since 2008.
(R.50).
Her last employment had been as a seamstress
who sewed labels on men’s shirts.
(Id.).
Plaintiff was 40 years
of age at the time of her hearing and she had completed the
eleventh grade.
(R.51).
She resides in Mount Carmel, Pennsylvania
with her fiancee and three children and, on the date of the
hearing, their household had no income.
(R.51-52).
Plaintiff Brown testified that she has difficulty breathing,
that she is unable to sit for long periods because of joint pain
and inflammation, and that she has extreme anxiety attacks.
She
stated that she feels fatigued all the time, has difficulty
remembering to do basic tasks such as brushing her teeth and taking
2
her medications, and that she does not want to get out of bed in
the morning.
She has difficulty climbing a flight of stairs
because of her breathing impairment and she stated that she does
not get restful sleep even though she uses a C-Pap machine to
alleviate sleep apnea.
(R.52).
Ms. Brown described a long series of abdominal problems that
began after the birth of her second child in 2004.
After that
delivery by C-section, she had a series of five separate hernia
operations followed by a hysterectomy.
Incident to one of these
surgeries, a mesh had been introduced into her abdomen.
has become intertwined with a section of her bowel.
This mesh
Incident to
two of her surgeries, she developed major infections that required
further hospitalizations.
The net effect of these surgeries is
that she finds it difficult to sit or stand comfortably.
She can
only sit for approximately half an hour and then must reposition
herself.
She can stand for approximately one half hour before she
must sit or recline due to swelling of her ankles and knees.
(R.53-54).
Plaintiff estimated that she could walk 3-4 blocks on a flat
surface at a slow pace.
Walking further than that would be
difficult due to her breathing impairment and joint pain.
uphill would cause her to use her rescue inhaler.
Walking
She stated that
she has been told that she has COPD and that she gets bronchitis
several times a year.
Extremely cold or hot weather exacerbates
3
her breathing problems.
She uses Albuterol via a nebulizer to ease
her breathing difficulties and sleeps with a C-Pap machine due to
her sleep apnea.
(R.54).
The C-Pap machine initially helped her a
great deal but she did not feel she was getting a restful night’s
sleep at the time of the hearing.
She opined that the C-Pap
machine required adjustment to a different pressure which, to her
understanding, would require her to undergo another sleep study.
(R.55).
Plaintiff described her unsuccessful efforts to quit smoking.
Before the onset of her various physical ailments, she was a twoto-three pack a day smoker.
She stated that she has cut back to a
pack and a half per day consumption of cigarettes but, because of
her anxiety, she cannot seem to cut her tobacco consumption any
further.
She stated that she sees a therapist once a week to try
to alleviate her stress and anxiety.
Her primary doctor has
prescribed an anti-depressant and Valium for her anxiety.
anxiety makes it difficult to be around people.
Her
(R.56).
Plaintiff takes numerous medications but has had to make a
chart to help her remember to take these medications at the
appropriate time.
She is able to do light work around the house.
She still does the dishes, but needs help to do the laundry.
can dress herself and is able to shower without assistance.
She
At
times she needs help from her fiancee and in-laws to take care of
the children.
(R.57).
4
Plaintiff watches television but is not able to watch a show
from beginning to end very frequently because she gets distracted
and needs to move around.
watches.
did.
She has difficulty recalling what she
She states that she just cannot do things she formerly
She had been a good cook but is now reduced to preparing
convenient meals that can be easily prepared.
She was an avid
gardener and liked to crochet but is now incapable of doing those
things.
She does grocery shopping when her father-in-law is
available to transport her.
She typically does her grocery
shopping once every two to three weeks.
father-in-law because she does not drive.
She must rely on her
(R.58-60).
Plaintiff testified further that she was 4'11" and weighed 207
pounds at the time of her hearing.
She stated that she had lost 50
pounds in the previous year and is trying to eat more healthily.
She lost weight under her doctor’s direction because of her
hernias, a thyroid condition, high blood pressure, and type II
diabetes.
Losing the weight has helped her control her blood sugar
levels but it is still not entirely under control.
When her blood
sugar spikes it causes her vision to deteriorate and she begins to
shake and sweat.
(R.61-62).
Plaintiff, her fiancee, and her three children subsist on
public assistance and $100.00 that her father-in-law gives them
each month.
her husband.
She uses the $100.00 to buy cigarettes for herself and
They roll their own cigarettes because they cannot
5
afford pre-packaged ones.
Her in-laws also sporadically provide
financial assistance to help with such things as purchasing school
clothing for her children.
Her husband is trying to get disability
benefits due to a heart condition and her concern about his medical
issues exacerbates her own anxiety.
While she has seen a counselor
for her mental health issues, she has never been admitted to a
facility for her depression and anxiety.
(R.63).
Nadine Henzes, a Vocational Expert, also testified at
Plaintiff’s hearing.
Ms. Henzes stated that she had reviewed
Plaintiff’s work history and that it revealed Plaintiff worked as a
sewer, an appointment setter, a laundry worker, and a returns
clerk.
These jobs ranged from light, unskilled work to sedentary
semi-skilled work.
The ALJ posed a hypothetical question to
Vocational Expert asking her to assume: a person of Plaintiff’s
age, education and work experience who could perform light work,
could occasionally climb ramps and stairs but never climb ladders,
could occasionally balance, stoop, kneel, crouch, or crawl, who
must avoid extreme heat and cold, fumes and dust, and who must
avoid such hazards as extreme heights and moving machinery, who can
understand and carry out simple instructions in an environment free
of fast-paced production quotas, and who can have only occasional
interaction with supervisors, co-workers, and the general public.
Asked whether such a person could perform her past relevant work,
the Vocational Expert responded that the sewer position and the
6
laundry position could be performed by such a person.
When the ALJ added an additional restriction that the person
could perform only sedentary work, the VE responded that such a
person could perform as a visual inspector, a document preparer,
and a video monitor, all positions that exist in significant
numbers in the national ecoonomy.
The ALJ then added to the hypothetical question additional
restrictions limiting the claimant to lifting no more than 15
pounds, standing and walking no more than two hours in an 8-hour
day, permitting the claimant unscheduled breaks every 30 minutes,
and allowing the claimant four absences per month. The Vocational
Expert then testified that these additional restrictions would
render the claimant unemployable.
B.
Medical Evidence.
`1.
(R.63-66).
Dr. Raymond Kraynak.
Dr. Kraynak was the Plaintiff’s primary care doctor from 2004
through 2013. (R.433).
For some indeterminate period of time, Dr.
Kraynak saw Plaintiff on a monthly basis.
(R.337).
Dr. Kraynak
provided his opinion of Plaintiff’s work capacity on several
occasions.
On June 21, 2012, he completed a Mental Impairment
Questionnaire in which he opined that she had marked impairments
in: her ability to understand short and simple instructions; her
ability to remember locations and work procedures; her ability to
understand detailed instructions; her ability to carry out either
7
short or detailed instructions; her ability to maintain
concentration and pace; her ability to conform to a schedule and
maintain regular attendance; her ability to sustain an ordinary
routine without special supervision; her ability to work in close
proximity to others without being distracted by them; her ability
to complete a normal work week without interruption from
psychologically based symptoms; her ability to perform at a
consistent pace with a standard number and length of rest periods;
the ability to travel in unfamiliar locations and use public
transportation; and the ability to respond appropriately to changes
in the work environment.
Dr. Kraynak also indicated that the
Plaintiff would miss more than four days of work each month - -an
“extreme” limitation.
(R.249-252).
On November 5, 2012, Dr. Kraynak wrote a letter to the
Pennsylvania Bureau of Disability Determination stating that the
claimant “has been under my care for treatment of type II diabetes,
morbid obesity, arthritis, anxiety, COPD, and chronic fatigue. She
also has a long history of irritable bowel syndrome.
She uses
Tylenol 3, Q4H for pain; and Buspar 10 mg./TID for anxiety.
uses Glucophage, 500 mg/BID for her diabetes.
She
As a result of this,
she is totally disabled from any and all employment.”
(Doc. 12-
10).
On October 14, 2012, Dr. Kraynak completed a Residual
Functional Capacity Questionnaire concerning Plaintiff’s physical
8
abilities.
He diagnosed Plaintiff with COPD, arthritis, sleep
apnea, obesity and diabetes and assigned her a prognosis of “fair”.
He stated that Plaintiff’s symptoms associated with her identified
impairments would constantly interfere with her ability to perform
simple work-related tasks.
Dr. Kraynak further opined that
Plaintiff: could walk one half to one block without rest; sit for 4
hours during an 8-hour workday but never more than 20 minutes at a
time; would need to take unscheduled breaks of from five to ten
minutes duration every hour during an 8-hour workday; could
occasionally lift less than ten pounds but never lift ten pounds or
more; could use her hands, fingers and arms for no more than 20% of
an 8-hour workday to reach, grasp, or twist objects, or perform
fine manipulations.
He stated that Plaintiff was not a malinginer
and was physically incapable of working an 8-hour day, five days a
week on a sustained basis.
(R.337-38).
On June 13, 2013, Dr. Kraynak completed a second Residual
Functional Capacity Assessment of Plaintiff along with a second
Mental Capacity Questionnaire regarding her.
The Residual
Functional Capacity Assessment mirrored closely the one Dr. Kraynak
had completed on October 14, 2012.
However, Dr. Kraynak’s Residual
Functional Capacity Evaluation of June 13, 2013 indicated that
Plaintiff’s ability to sit had declined to 15 minutes at one time
and no more than three hours in an 8-hour workday.
Also, Dr.
Kraynak estimated that Plaintiff’s tolerance for the use of her
9
hands, arms and fingers had decreased to only 10% of an 8-hour
workday.
(R.433-35).
The Mental Capacity Questionnaire that Dr. Kraynak completed
on June 13, 2013 indicated that many of the marked limitations he
had found in his assessments of June 21, 2012 had resolved to the
point that they were now moderate limitations.
Only Plaintiff’s
ability to complete a normal work week without interruptions from
psychologically-based symptoms continued to be a marked limitation
as of June 13, 2013 according to Dr. Kraynak’s later report.
(R.436-37).
2.
Dr. Sanjay Sen.
Dr. Sen saw the Plaintiff on October 4, 2012 at the request of
the Bureau of Disability Determination.
Dr. Sen conducted a
physical examination of Plaintiff and took a history of her family
background, medication, and reported symptoms.
His impressions of
the Plaintiff included COPD, nicotine dependance, sleep apnea,
joint pain and a right abdominal hernia.
Dr. Sen did not opine
that Plaintiff had any cognitive, emotional, or psychological
impairment.
He found that Plaintiff could lift or carry up to 15
pounds, stand and walk for one to two hours, sit for two hours,
push and pull with 10 to 15 pounds of force with her hands and 20
pounds of force with her feet, frequently balance and climb steps,
and occasionally bend, kneel, stoop and crouch.
Dr. Sen also found
that Plaintiff should avoid cold temperatures, fumes, odors, gases,
10
dust, and humidity because these things could exacerbate her
shortness of breath.
He scheduled her for a pulmonary function
test that ultimately revealed that Plaintiff suffered minimal
obstructive lung deficit and a mild decrease in oxygen diffusing
capacity.
He also recommended an imaging study of her joints, but
the record includes no report of such a study.
3.
(R.347-352).
Dr. Matthew Emery.
On December 4, 2012, Plaintiff was evaluated by Dr. Emery, a
licensed psychologist, at the request of the Bureau of Disability
Determination.
Dr. Emery’s report (R.371-375) indicates that
Plaintiff followed directions and was generally cooperative during
the examination.
Dr. Emery concluded that Plaintiff suffered from
“Major Depressive Disorder, Mild”, and “Anxiety Disorder, NOS” and
assigned her a GAF (Global Assessment of Function) score of 60, a
score indicative of “moderate symptoms such as flat affect,
occasional panic attacks, or moderate difficult of social,
occupational, or school functioning.”
See Diagnostic and
Statistical Manual of Mental Disorders at 34 (4th Ed. Text Rev.
2000).
Dr. Emery also completed a “Medical Source Statement of
Ability to Do Work-Related Activities (Mental).
(R.376-378).
He
found: that Plaintiff’s ability to understand and carry out simple
instructions was slightly impaired; that her ability to carry out
detailed instructions was only moderately impaired; and that her
11
ability to make judgments on simple work-related decisions was not
impaired.
Dr. Emery also found that Plaintiff was not impaired
with respect to her ability to interact with the public,
supervisors or co-workers and that she was moderately impaired in
her ability to respond appropriately to work pressures and changes
in a routine work setting.
Dr. Emery deferred comment on
Plaintiff’s physical limitations leaving that to her medical
doctors.
Finally, Dr. Emery concluded that Plaintiff could manage
benefits in her own interest.
4.
Judith Kriskie, LCSW.
Plaintiff attended counseling sessions with Ms. Kriskie, a
licensed clinical social worker, on nine occasional between April
26, 2013 and July 31, 2013.
(R.439).
On the basis of these
encounters, Ms. Kriskie completed a “Mental Capacity Assessment”
(R.582-84). regarding Plaintiff on January 4, 2014.
Ms. Kriskie
found that Plaintiff suffered from anxiety, panic attacks, and poor
memory.
Ms. Kriskie stated that “Sherrie is unable to remember to
take her meds every day - - is overwhelmed by daily stressors and
has decompensated over the past six months.” (R.582).
Ms. Kriskie
found that Plaintiff had “extreme” limitations in numerous aspects
of her ability to remember, understand, sustain concentration,
maintain socially appropriate behavior, and adapt to changes in a
work setting.
Finally, Ms. Kriskie found that Plaintiff retained
the ability to manage benefits in her own interests.
12
C.
ALJ’s Decision.
The ALJ’s decision (Doc. 12-2) was unfavorable to the
Plaintiff.
It included the following Findings of Fact and
Conclusions of Law:
1.
The claimant has not engaged in substantial gainful
activity since August 3, 2012, the application date.
2.
The claimant has the following severe impairments:
history of abdominal hernias, chronic obstructive
pulmonary disease, morbid obesity, diabetes
mellitus, obstructive sleep apnea, history of
irritable bowel syndrome, major depressive disorder
and anxiety.
3.
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
416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record,
the undersigned finds that the claimant has the
Residual Functional Capacity to perform sedentary
work as defined in 20 CFR 416.96(a) except that she
could only occasionally climb ramps and stairs but
never ladders, ropes or scaffolds.
13
The claimant
could occasionally balance, stoop, kneel, crouch and
crawl.
She must avoid concentrated exposure to
extreme cold, extreme heat, wetness, humidity,
vibration, fumes, odors, dust, gases, poor
ventilation and hazards such as heights and moving
machinery.
The Plaintiff could understand, remember
and carry out simple instructions in an environment
free of fast-paced production requirements involving
only simple work-related decisions with few work
place changes.
The claimant could have only
occasional interaction with supervisors, co-workers
and the public.
5.
The claimant is unable to perform any past relevant
work.
6.
(20 CFR 426.965).
The claimant was born on May 6, 1973 and was 39
years old, which is defined as a younger individual
age 18-44 on the date the application was filed.
7.
The claimant has a limited education and is able to
communicate in English.
8.
Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled”, whether
or not the claimant has transferrable job skills.
14
9.
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 416.969 and 416.969(a).
10.
The claimant has not been under a disability as
defined in the Social Security Act, since August 3,
2012, the date the application was filed (20 CFR
416.920(g)).
III. 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
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).
15
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 CFR §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
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 there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.39-40).
IV. 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.
16
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).
17
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 that 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
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
18
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,
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
19
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).
V.
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
20
strictly construed.”
VI.
Id.
Plaintiff’s Allegations of Error.
1.
Whether the ALJ’s Residual Functional Capacity
Determination is Unsupported by Substantial Evidence
Because the ALJ Erred by According Inadequate Weight to
the Testimony of Plaintiff’s Treating Physician?
Plaintiff contends that because Dr. Raymond Kraynak, her
treating physician, provided multiple medical source statements
indicating that she was completely disabled, his opinion should be
entitled to controlling weight.
Certainly, the testimony of the
treating physician with a lengthy longitudinal history of treating
the claimant is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record...”.
Fargnoli
v. Massanari Acting Commissioner, 247 F.3d 34, 43, (3d. Cir. 2001).
While Dr. Kraynak is undeniably Plaintiff’s treating physician, his
opinion, as expressed in multiple medical source statements, is not
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and, thus, cannot be given controlling
weight under the principle expressed in Fargnoli, supra.
The
administrative record contains remarkably little in the way of
diagnostic testing results obtained by Dr. Kraynak.
In fact, there
are none. Beyond that, considering the nine year doctor/patient
21
relationship between Plaintiff and Dr. Kraynak, the additional
documentation provided by Dr. Kraynak is remarkably sparse. The
only other documentary evidence generated by Dr. Kraynak in the
record is two pages of anecdotal hand-written notes summarizing six
office visits by Plaintiff between January 3, 2012 and April 23,
2013.
(R.586-87).
These notes are largely illegible and cannot be
interpreted as “well-supported” evidence of Plaintiff’s ailments
and the extent to which they incapacitate her.
Thus, all we have
from the treating physician are a series of “fill in the blank”
forms that, in the Third Circuit, are considered to be weak and
unreliable evidence.
Mason v. Shalala, 994 F.2d 1058, 1065 (3d.
Cir. 1983)(citing Brewster v. Heckler, 786 F.2d 581, 585 (3d. Circ.
1986).
For this reason, we cannot fault the ALJ for assigning Dr.
Kraynak’s opinion “limited weight”.
(R.38).
The ALJ’s conclusion
that Dr. Kraynak’s opinion was unsupported by examination findings
or the objective medical evidence (R.38) is supported by this
record.
Accordingly, the Court does not agree that the ALJ
improperly discounted Dr. Kraynak’s opinion nor can the Court
conclude that the ALJ’s RFC determination is unsupported by
substantial evidence.
2.
Whether the ALJ’s Credibility Determination is
Unsupported by Substantial Evidence?
The ALJ found “that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
22
symptoms.
However, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are
not entirely credible...”.
(R.36).
The Plaintiff’s testimony as
to the limitations caused by her COPD are contradicted in the
record by a pulmonary function study that “confirmed only minimal
obstructive lung deficit and mild decrease in diffusing capacity.”
(R.38).
The ALJ also noted that, in spite of the claimant’s
allegations of being short of breath, “she continues to smoke,
which suggests that her breathing issues are not so limiting as to
be disabling.”
(Id.).
Claimant’s persistence in smoking despite
her COPD is certainly probative that her symptoms may not be as
severe as she contends and the ALJ’s finding to this effect is
reasonable.
Similarly, Plaintiff’s complaints regarding her inability to
focus, concentrate, and remember (R.57-60) are contradicted in the
record.
Dr. Emery, the examining psychologist, found that
claimant’s thought process appears to be logical, coherent, and
goal-oriented.
limits.”
Her rate of mentation seemed to be within normal
(R.373).
Dr. Emery also found that both claimant’s
recent memory and remote memory appear to be intact.
Thus, there
is probative evidence of record that the claimant’s credibility
regarding her inability to remember and concentrate is, to some
degree, overstated.
For these reasons, we determine that the ALJ’s finding that
23
Plaintiff was not entirely credible in describing her physical and
mental impairments is supported by substantial evidence of record.
3.
Whether the ALJ’s Step V Determination is Unsupported by
Substantial Evidence?
The ALJ concluded at Step V of the SSA evaluative process,
that the claimant has the residual functional capacity to perform
jobs that exist in significant numbers in the national economy.
(R.39-40).
The ALJ had previously found as a fact that the
claimant could perform sedentary work with various physical
restrictions and “...could understand, remember and carry out
simple instructions in an environment free of fast-paced production
requirements involving only simple work-related decisions with few
work place changes.
The claimant could have only occasional
interaction with supervisors, co-workers and the public.”
(R.35).
After being asked to assume the accuracy of the limitations
imposed by the ALJ’s RFC determination, the Vocational Expert
testified that Plaintiff could not do her past relevant work but
could perform such jobs as visual inspector, document preparer, and
video monitor. (R.66).
After further questioning of the Vocational
Expert, she was asked whether her testimony was consistent with the
Dictionary of Occupational Titles (DOT) and she responded that it
was consistent in respect to the three occupations previously
mentioned.
(R.67).
Plaintiff’s counsel was then asked whether he
had any questions for the Vocational Expert whereupon he declined
24
to ask any.
(Id.).
As the Government points out (Doc. 16, 24-25 at n.5) in its
brief, the SSA may take administrative notice of “reliable job
information” found in the DOT.
The SSA issued Social Security
Ruling 00-4P to provide guidance to resolve any discrepancies
between opinions offered by vocational experts and the literal
wording of DOT descriptions of various occupations.
The SSA
recognized that a “Vocational Expert...may be able to provide more
specific information about jobs or occupations than the DOT.”
SSR 00-4P at 3.
See
SSR 00-4P also states that if there is “an
unresolved conflict between Vocational Expert...evidence and the
DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE...to support a determination or
decision about whether the claimant is disabled.”
This begs the
question whether there is, in fact, an “unresolved conflict”
between the VE’s testimony in this case and the descriptions of the
relevant jobs in the DOT.
Plaintiff asserts that the three positions that the VE
identified as being within Plaintiff’s physical and mental
capacities actually require a higher level of cognitive ability
than the ALJ’s hypothetical questions asked the VE to assume.
Specifically, Plaintiff claims that all three positions require
frequent interaction with supervisors, co-workers and the public
and the ability to carry out both simple and detailed instructions.
25
This would conflict with some of the limitations that the VE was
asked to assume - - that the jobs require only occasional
interaction with supervisors, co-workers and the public and require
only the ability to carry out simple instructions.
(Doc. 15 at 14-
15).
The Court must make two observations here.
First, the
Plaintiff’s counsel declined to identify, much less explore, any
“unresolved conflict” between the VE’s testimony and the DOT at the
hearing in this matter.
Second, Plaintiff’s assertion that a
conflict exists here is bereft of any specific citation
establishing the existence of the alleged conflict.
The Court will rely on precedent establishing that, where the
ALJ’s hypothetical question incorporates all credible limitations
established by the record,2 the ALJ may appropriately consider the
VE’s response to that question as substantial, reliable evidence.
Plummer v. Apfel, 186 F.3d 422, 431 (3d. Cir. 1999).
In placing
this reliance on the VE’s expertise, the Third Circuit implicitly
recognized that vocational experts have great knowledge of the
difference between the way various jobs are described in the DOT
and the way these jobs are actually performed in the workplace.
Thus, even if there is a discrepancy between the DOT descriptions
of the jobs in question and the way these jobs are actually
2
The Court agrees that the hypothetical question from which the Vocational Expert testified
incorporated all of Plaintiff’s mental and physical limitations that are established by the record in this
case.
26
performed - - something that Plaintiff has not documented to the
Court’s satisfaction - - the ALJ’s reliance on the VE’s testimony
was appropriate.
VII. Conclusion.
For all the foregoing reasons, the Court rejects all three of
the Plaintiff’s assignments of error.
Accordingly, the
Commissioner’s decision in this matter will be upheld.
An Order
consistent with this determination will be filed contemporaneously.
BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: April 14, 2016
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?