McMullen v. Colvin
Filing
24
MEMORANDUM (Order to follow as separate docket entry)For the reasons stated above, the Court finds that the Commissioners decision was supported by the requisite substantial evidence and that the Commissioners decision to deny benefits in this case must be affirmed. An Order to that effect will be filed contemporaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/26/17. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY MCMULLEN
:
Plaintiff
:
v.
: Case No. 3:16-CV-862
CAROLYN W. COLVIN
Acting Commissioner of
Social Security
Defendant
: (Judge Richard P. Conaboy)
:
:
_________________________________________________________________
Memorandum
I.
Background.
We consider here Plaintiff’s appeal from an adverse ruling of
the Social Security Administration (“SSA” or Agency”) on his
application for Disability Insurance Benefits (“DIB”).
Plaintiff’s
application alleging a period of disability beginning January 15,
2010 (R.191) was denied at the administrative level on June 18,
2013 (R.130-134), whereupon Plaintiff requested a hearing before
the Administrative Law Judge (“ALJ”) on August 19, 2013 (R.139140).
Plaintiff’s hearing was held via video conference with ALJ
Sharon Zanotto presiding on November 3, 2014.
On December 5, 2014, the ALJ issued a written opinion (R.4765) that was unfavorable to Plaintiff.
After Plaintiff requested
Agency review of the ALJ’s decision, the Appeals Council, by notice
dated April 13, 2016, upheld the ALJ’s decision and advised
Plaintiff that additional medical information he had submitted that
post-dated the date of the ALJ’s decision was relevant only to a
new claim he could file for a period of disability beginning at
some point after the date (December 5, 2014) of the ALJ’s decision.
The Appeals Council’s denial of Plaintiff’s request for review
constitutes a final decision by the Agency and leaves this Court
with jurisdiction over the instant appeal pursuant to 42 U.S.C. §
405(g).
The parties have fully briefed (Docs. 16, 22 and 23) the
issues and this case is now ripe for disposition.
II.
Testimony Before the ALJ.
On November 3, 2014, Plaintiff had his hearing before the ALJ.
Testimony was taken from the Plaintiff and from Andrew Capperelli,
a Vocational Expert.
Also present was Plaintiff’s counsel, Adam
Crosier.
Plaintiff’s testimony may be summarized as follows.
On the
date of his hearing Plaintiff was an inmate at SCI Frackville.
He
was born on June 21, 1961 and was 53 years of age at the time of
the hearing.
He is single and has no children under the age of 18.
Since his alleged disability date (January 15, 2010) Plaintiff had
been incarcerated or otherwise subject to a criminal justice
sentence at various prisons, rehabilitation facilities, and
community confinement centers from November 30, 2011 through the
date of his hearing.
(R.74-78).
Plaintiff’s last job prior to his alleged disability date was
at the Waffle House.
He could not specifically recall when or for
how long he worked at the Waffle House.
2
He has not worked at all
since being incarcerated in November of 2011.
Plaintiff graduated
from high school in 1980 whereupon he joined the army and served
two tours of duty in South Korea.
While in high school at the
Milton Hershey School Plaintiff had special vocational training in
agriculture.
Despite the fact that he successfully graduated,
Plaintiff stated that he has problems with math and reading
comprehension.
(R.78-80).
Plaintiff stated that he found military service difficult
because he had difficulty following orders and he got into numerous
fights.
These problems resulted in disciplinary actions which, in
turn, resulted in a general discharge.
He does not drive because
his license is suspended due to convictions on drug charges.
has also been convicted of a theft offense.
He
Plaintiff acknowledged
doing community service work 20 hours per week at the York Rescue
Mission Thrift Store incident to one of his incarcerations.
He
described that work as one where he essentially did nothing but sit
at a door and check bags.
(R.81-83).
Plaintiff also testified regarding his drug and alcohol abuse.
He stated that he had not used either illegal drugs or alcohol
since November 30, 2011 - - a period of almost three years.
He
stated that during this period of abstinence, which was identical
to his period of incarceration, he has continued to be alternately
depressed and agitated.
He does not sleep well and states that
despite his use of Zoloft he cannot calm down and has difficulty
3
concentrating.
He also stated that his motivation is low and that
two or three times each month he will just remain in bed and not
even get up for meals.
He is permitted to miss meals at his place
of incarceration but he must go to meetings of his drug and alcohol
and violence prevention groups.
could jeopardize his parole.
Missing either of those meetings
(R.84-85).
Plaintiff states that he has been compliant with all his
medications while incarcerated and has been seeing a psychologist
and psychiatrist once every three months.
He can see the
psychologist more often than that if he feels the need.
(R.86-89).
Upon questioning by his counsel, Plaintiff stated that he
takes Lithium and that he believes one of its side effects is that
he hears a muttering-type voice and begins to engage in a
conversation with this voice.
He is aware that he should not be
engaging in this “conversation” but he cannot control himself at
times.
hour.
On these occasions this typically goes on for up to half an
He also stated that he continues to take Zoloft as directed
but believes that it makes him hyperactive.
He has talked to the
prison psychiatrist and asked to be prescribed Elavil to help him
sleep and control his anxiety.
prescribe Elavil.
The psychiatrist has declined to
(R.90-92).
Plaintiff testified further that he sleeps only about three
hours per night because his mind races.
When his mind races he
thinks about his childhood, a childhood that was characterized by
4
sexual abuse.
He thinks also about two of his granddaughters who
died as infants.
He believes that the sexual abuse he suffered as
a child ruined him.
(R.93-94). He described himself as a loner.
He likes being alone because he has a propensity to share
information about himself with others.
This sharing has caused
problems such as being ridiculed by other inmates for discussing
the sexual abuse he suffered.
to himself.
As a result he has learned to keep
Also, he states that he is a bit paranoid and inclined
to believe that other people are talking about him or planning to
harm him.
This feeling has caused him to walk away from numerous
jobs without notifying employers.
(R.95-97).
Plaintiff then
recounted a succession of jobs he had held for brief periods of
time in the distant past with Rockaway Bedding, Nostalgia Oak
Warehouse, Nastasis, Intrapersonal, Federal Cleaning, Bagel Lovers,
Spencer Gifts, and A.C. Moore’s.
These jobs were all of the
customer service or shelf stocking variety.
(R.99-102).
Testimony was also taken from Vocational Expert Andrew
Capperelli.
Mr. Capperelli stated that he had reviewed Plaintiff’s
work history.
Plaintiff’s work fits several profiles according to
Mr. Capperelli.
Some of it was janitorial/cleaning work and some
of it was kitchen helper type employment as defined in the
Dictionary of Occupational Titles (“DOT”).
All of Plaintiff’s past
relevant work was characterized by Mr. Capperelli as “medium
unskilled”.
(R.107-110).
5
In response to hypothetical questions posed by the ALJ and
Plaintiff’s counsel, Mr. Capperelli stated that the Plaintiff could
not perform some of his past relevant work because the danger posed
by his use of blood thinners would be too great for him to work
around moving machinery.
The vocational expert concluded however
that Plaintiff could perform several light exertional category jobs
such as “marker” or “mail clerk” that exist in significant numbers
in the national economy.
When asked by Plaintiff’s counsel whether
Plaintiff could perform those occupations if one assumed that
Plaintiff could have no contact with the public, no interaction
with co-workers, and required supervision for up to two thirds of
each working date, the Vocational Expert responded that Plaintiff
would be unable to sustain employment even as a “marker” or “mail
clerk”. (R.111-112).
III. Mental Impairment Evidence.1
Plaintiff suffers from bipolar disorder, depression, antisocial personality disorder, post-traumatic distress disorder and
substance abuse disorder.
The ALJ has identified each of these
conditions as “severe impairments”.
(R.52).
Indeed, a succession
of physicians and therapists have documented the presence of these
mental impairments over a period of more than four years.
58).
(R.55-
Despite the consistency of these diagnoses by multiple
1
While the record includes evidence that Plaintiff has treated for such physical problems as a
low back strain and a pulmonary embolism, this is essentially a mental disability case and Plaintiff’s
attorney has so acknowledged. (R.71-72).
6
medical providers, the record contains very little information
regarding the limiting effects of these “severe impairments” on the
Plaintiff’s capacity to perform gainful activity.
A.
The Testimony of Dr. Thomas Fink.
Perhaps the best evidence in the record regarding the limiting
effects of Plaintiff’s various impairments comes from Thomas Fink,
Ph.D., the state agency’s psychological consultant who assessed
Plaintiff’s functional abilities on June 12, 2013.
Dr. Fink found
that Plaintiff had mild restrictions in his activities of daily
living; moderate difficulties in maintaining concentration
persistence and pace; and moderate difficulties in maintaining
social functioning. (R.118-28).
Other than Dr. Fink’s assessment,
no other medical professional has attempted to quantify the extent
to which Plaintiff’s established “severe limitations” affect his
ability to work.
B.
Treatment at the Lebanon, Pennsylvania Veteran’s
Administration Hospital.
Plaintiff was treated by an array of physicians at the Lebanon
Veteran’s Administration Hospital.
On May 31, 2013, he was seen by
Dr. Robert A. Kirk, a psychiatrist.
Dr. Kirk assessed Plaintiff to
have a stable level of consciousness throughout the interview on
that date.
He detected no abnormal movements or tremors nor did he
observe psychomotor agitation or retardation.
Plaintiff’s attitude
was cooperative, his speech rate was normal and articulate, and his
7
thought process was linear without any flight of ideas.
Dr. Kirk
assessed that Plaintiff’s thought content revealed no evidence of
delusion or paranoia and was appropriate to the situation.
Plaintiff expressed no homicidal or suicidal ideation, his affect
was congruent, and both his judgment and insight were described as
fair.
Dr. Kirk’s diagnoses were cocaine dependence in remission,
alcohol dependence in remission, mood disorder, NOS, post-traumatic
stress disorder, and pain disorder.
He assigned Plaintiff a Global
Assessment of Functioning (“GAF”) Score of 50.
(R.634-637).
On three occasions between June 4, 2013 and July 2, 2013,
Plaintiff was seen by Dr. Steven H. Williams, Ph.D., a Veteran’s
Administration psychologist working in concert with Dr. Kirk.
On
each of these occasions Dr. Williams assessed Plaintiff’s speech to
be clear and logical without overt evidence of a thought disorder
or other psychotic process.
On each of these occasions Dr.
Williams found that Plaintiff’s mood was pleasant with full affect,
his cognition was grossly intact, and he presented with no active
or passive suicidal ideation, intent, or plan.
On June 28, 2013,
Plaintiff confided in Dr. Williams that he felt stressed by the
rules at his half-way house and by the fact that he had a pending
disability claim.
Dr. Williams consistently assessed Plaintiff to be suffering
from post-traumatic stress disorder, cocaine dependence in
remission, alcohol dependence in remission, mood disorder, NOS, and
8
pain disorder.
Like Dr. Kirk, Dr. Williams assessed Plaintiff to
exhibit a GAF level of 50 on each occasion that he examined him.
(R.609-627).
On June 28, 2013, Dr. Ellen A. Johnson, a medical doctor in
the employ of the Veteran’s Administration, authored a note
indicating that she was following Plaintiff and that, “due to his
ongoing mental health issues and back problems”, he would be unable
to work for the next 12 months.
Dr. Johnson provided no further
elaboration of what mental health issues and back problems
contributed to her assessment that Plaintiff was at that time
disabled.
C.
(R.613).
Mark Pentz, Licenced Professional Counselor.
Mr. Pentz saw Plaintiff on ten occasions between April of 2013
and June of 2013.
Two of these occasions were independent
counseling sessions and the other eight involved Plaintiff as part
of group sessions.
Mr. Pentz noted the various diagnoses of the
physicians referenced above and opined that it would be challenging
for Plaintiff to interact with others in an occupational setting.
Mr. Pentz also stated that Plaintiff would have difficulty
adjusting to a work setting due to “over-the-top” behaviors.
described Plaintiff as “loud, argumentative, and defensive.”
(R.940-941).
9
He
D.
Evidence Provided by Other Physicians.
Plaintiff saw several other physicians while incarcerated. On
July 13, 2011, Plaintiff was admitted to Lancaster General Hospital
after a suicide attempt in which he reportedly ingested 24 Seroquel
tablets, 12 Tylenol with Codeine tablets, a six-pack of beer, and
an indeterminate amount of cocaine.2
Plaintiff reported that he
had been feeling agitated and irritated, had not been eating, and
had been crying and sleeping most of the day.
He was involved in
individual and group therapy after being diagnosed with mood
disorder, polysubstance abuse by history, cluster B personality
traits, and, upon admission, a GAF of 30.
After eight days of
counseling and receipt of prescriptions for Celexa and Seroquel,
Plaintiff was discharged on July 21, 2011 with an assessed GAF
Score of 50 (T.401-402).
On November 30, 2011, Plaintiff was transported from the
Lancaster County Prison to Lancaster General Hospital once again
due to a suspected overdose of Seroquel.
The examining physician,
Dr. Trystan Davies, noted incoherent speech, tired mood, blunted
affect and impaired memory.
Plaintiff was observed for three hours
and was then deemed stable for discharge whereupon he was released
to prison officials.
(R.644-764).
Between December 13, 2011 and May 15, 2012, Plaintiff saw Dr.
2
Seroquel is an anti-psychotic medication used to treat schizophrenia, depression, and bipolar
disorder. www.webmd.com.
10
Marc Turgeon, D.O., on at least four occasions.
On December 13,
2011, Plaintiff presented with complaints of panic attacks and also
reported that he was doing better without his medication.
On
January 10, 2012, Dr. Turgeon noted increased depression due to the
death of Plaintiff’s brother and prescribed Zoloft.
On February
16, 2012, Plaintiff complained of nightmares and difficulty
sleeping thus causing Dr. Turgeon to add Elavil to his medications.
On May 15, 2012, Dr. Turgeon described Plaintiff as stable and
noted Plaintiff’s self-assessment that he was doing well.
(R.312-
359).
On September 9, 2013, while incarcerated at SCI Camp Hill,
Ralph Tomei, M.D., the prison psychiatrist, evaluated Plaintiff.
Dr. Tomei found Plaintiff to be alert and oriented to person,
place, and time and that Plaintiff was not agitated.
Dr. Tomei
also observed that Plaintiff maintained good eye contact, denied
suicidal or homicidal ideation, presented with calm affect and
cooperative attitude, and that Plaintiff’s insight, judgement, and
both recent and remote memory were intact.
Dr. Tomei recommended
that Plaintiff continue taking Elavil and Zoloft and continue
participation in the prison’s drug and alcohol program.
(T.988-
989).
On September 2, 2014, Plaintiff underwent a parole evaluation
by Dr. David Ahner, D.O., at SCI Mahanoy.
Dr. Ahner described
Plaintiff as fully compliant with his psychiatric treatment and
11
psychotropic medications.
He stated that Plaintiff was stable.
He
noted Plaintiff’s longstanding diagnoses of bipolar disorder,
depression, personality disorder, NOS, anti-social behavior, and
polysubstance dependence.
Dr. Ahner recommended that Plaintiff’s
parole plan include out-patient psychiatric evaluation, medication
management, and continued drug and alcohol treatment to include
attendance at AA meetings.
IV.
(R.1229-1230).
ALJ’s Decision.
The ALJ’s decision (Doc. 14-2 at 47-65) was unfavorable to the
Plaintiff.
It included the following Findings of Fact and
Conclusions of Law:
1.
The claimant meets the insured status
requirements of the Social Security Act through
March 31, 2015.
2.
The claimant has not engaged in substantial
gainful activity since January 15, 2010, the
alleged onset date.
3.
The claimant has the following severe
impairments:
bipolar disorder, depression,
anti-social personality disorder, posttraumatic stress disorder, and substance abuse
disorder.
4.
The claimant does not have an impairment or
combination of impairments that meets or
12
medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart
T, 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
a full range of work at all exertional levels
but with the following non-exertional
limitations: the claimant is unable to climb
ladders, ropes, and scaffolds and should avoid
moving mechanical parts and unprotected
heights due to chronic coumadin treatment.
The
claimant is able to perform work involving
occasional interaction with co-workers,
supervisors, and the public.
6.
The claimant is capable of performing pastrelevant work as a kitchen helper.
This work
does not require the performance of workrelated activities precluded by the claimant’s
residual functional capacity.
7.
The claimant has not been under a disability as
defined in the Social Security Act, from
January 15, 2010, through the date of this
13
decision.
V.
Disability Determination Process.
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3
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 CFR §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
3
“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).
14
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.at 54).
VI. 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).
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
15
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.
16
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
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).
17
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
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).
VII. Discussion.
A. General Considerations
18
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.”
Id.
B. Plaintiff’s Allegations of Error.
1.
Whether the ALJ Erred in His Conclusion that Plaintiff’s
Back Pain and Pulmonary Embolism Were Not Severe
Impairments?
Plaintiff asserts that the ALJ erred at Step 2 of the Agency’s
19
sequential evaluation process by finding that Plaintiff’s back pain
and pulmonary embolism did not constitute “severe impairments”.
Severe impairments are those that significantly limit a claimant’s
physical or mental ability to do basic work activities.
§ 404.1521(b)(1).
See 20 CFR
Defendant contends that the record indicates:
(1) that Plaintiff’s back pain had existed only sporadically and
ultimately resolved; and (2) that Plaintiff’s pulmonary embolism
posed no significant limitation on Plaintiff’s ability to work
because it was treatable through the simple means of Warfarin
therapy.
Our review of the record persuades the Court that the record
does not sustain Plaintiff’s argument.
The record is devoid of any
diagnostic testing that indicates that Plaintiff has any structural
deformity (e.g. a herniated disc or spondylolisthesis) which is
producing chronic severe back pain.
Plaintiff’s treatment records
for back pain are sparse and sporadic as Defendant contends.
The
only treatment Plaintiff has received for his sporadic bouts of
back pain was very conservative and consisted of Tylenol, one
regimen of a tapering dose of steroids, and gentle stretching.
The
ALJ on the basis of the record before her rationally concluded that
Plaintiff’s sporadic back pain was not a severe impairment that
imposed any significant limitations on Plaintiff’s physical ability
to work.
With respect to Plaintiff’s pulmonary embolism, the record
20
reflects that the condition is controllable through the use of
blood thinners.
The record contains no suggestion by any medical
provider that Plaintiff’s pulmonary embolism presents any
significant impairment to Plaintiff’s ability to work.
Accordingly, we find that the AlJ permissibly concluded that
Plaintiff’s pulmonary embolism did not constitute a severe
impairment.
2.
Whether the ALJ Erred in Finding that Plaintiff Did Not Meet
The Criteria For Disability Under Listings 12.04, 12.06, and
12.08?
Plaintiff asserts that the ALJ erred at Step 3 of the Agency’s
sequential evaluation process by finding that none of his severe
impairments, singly or in combination, met one of the Agency’s
special listings, specifically those at SSR 12.04, 12.06, and
12.08.
We consider these in turn.
One way a claimant can qualify for benefits under Listing
12.04 is to meet the criteria of Part A and Part B of the listing.
Listing 12.04 provides in Part A that an individual be affected by
four of the following: pervasive loss of interest in all
activities; appetite disturbance with change of weight; sleep
disturbance; decreased energy; feelings of guilt or worthlessness;
difficulty concentrating; and thoughts of suicide or delusional
thinking.
The Court does find that Plaintiff is affected by the
requisite four symptoms under 12.04 Part A.
21
To meet the Part B criteria under 12.04, Plaintiff’s
depression or bipolar disorder must cause two of the following:
marked restrictions in activities of daily living; marked
difficulties in maintaining social functioning; or marked
difficulties in maintaining concentration, persistence or pace.
Our review of the record discloses no medical documentation that
Plaintiff suffers from “marked difficulties” in any of the Part B
criteria.
The only documentation of the degree to which
Plaintiff’s impairments are disabling came from Dr. Fink and Marc
Pentz.
Dr. Fink opined (See Page 7 ante) that Plaintiff had mild
to moderate restrictions in these areas.
Marc Pentz opined (See
Page 9 ante) that it would be “challenging” for Plaintiff to
function in an occupational setting where he would have to interact
with others.
The Court, however, will not accept Pentz’s
characterization of “challenging” as being the equivalent of a
“marked difficulty”.
4
Accordingly, we conclude that Plaintiff has
not demonstrated that he has met both the Part A and Part B
criteria, a necessary prerequisite to support an award of benefits.
Plaintiff asserts also that he meets the criteria for an award
of benefits pursuant to Listing 12.04 Part C.
To meet the Part C
criteria, Plaintiff must demonstrate that he experienced three
episodes of decompensation within a period of one year and that
4
Pentz, a licensed professional counselor, is not an “accepted medical source” as defined in
SSR 06-03p.
22
each such period lasted at least two weeks.
Plaintiff has
acknowledged (Doc. 16 at 22) that his three hospitalizations in the
period beginning June 21, 2010 through July 13, 2011 (which in the
aggregate amounted to only 14 days of hospitalization and did not
occur within the requisite one year period) “do not technically
meet the repeated episodes of decompensation each of extended
duration” requirement imposed by Listing 12.04 Part C.
Nevertheless, Plaintiff contends, without authority, that the
duration and severity of his episodes were such that they should be
considered the equivalent of the explicit requirements set forth in
the listing.
We cannot agree with this proposition in the absence
of any cited authority.
Accordingly, we conclude that Plaintiff,
by his own admission, does not meet the technical requirements of
Listing 12.04 C.
Finally, Plaintiff also contends that he meets the Listing at
12.04(c)(3) due to his alleged inability to function outside a
highly supported living arrangement for a period of at least one
year.
Plaintiff’s counsel cites Plaintiff’s extended incarceration
as proof of that proposition.
The Court finds this insufficient
and observes that if being incarcerated, without more, was proof of
an entitlement to disability under Listing 12.04(c)(3), much of the
nations’s prison population would qualify for DIB upon completion
of their sentences.
Plaintiff’s argument in this regard must be
23
rejected.5
3.
Whether Substantial Evidence Supports the ALJ’s
Evaluation of the Opinion Evidence?
Plaintiff contends that the ALJ’s evaluation of the opinion
evidence provided by Dr. Ellen A. Johnson, Marc Pentz, and Dr.
Thomas Fink was flawed.
We shall consider the opinions provided by
each in turn.
A.
Dr. Johnson.
Dr. Johnson saw Plaintiff several times in May and June of
2013.
On June 28, 2013, she authored a letter indicating that “due
to his ongoing mental health and back problems” Plaintiff would be
unable to work for the next 12 months.
(T. at 613).
It is true
that the opinion of a treating physician is normally entitled to
great weight “especially when...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)(cited by Plaintiff;
Docs. 16 at 23).
However, the record in this case does not support
the inference that Dr. Johnson had the long linear relationship
with Plaintiff envisioned by the Morales Court.
Beyond that, as
noted by Defendant, the applicable regulations require that a
5
Plaintiff makes similar arguments under the guise of Listing 12.06 (anxiety disorders) and
Listing 12.08 (impulse control disorders). These arguments fail for the same reason all his
arguments under Listing 12.04 failed. The record simply does not support the conclusion that his
anxiety disorder or his anti-social personality disorder produced the requisite “marked restrictions” to
support an award of DIB.
24
treating physician’s opinion be given controlling weight only when
it is well-supported by clinical and laboratory findings and not
inconsistent with other substantial evidence of the record.
20 CFR § 404.1527c)(2).
(See
Our review of the record persuades the
Court that Dr. Johnson’s findings as expressed in her letter of
June 28, 2013 are not supported by clinical or laboratory findings
of record nor are they consistent with much evidence in the record
that: (1) Plaintiff’s back problems were sporadic and non-severe;
and (2) Plaintiff’s mental health issues were not severe enough to
be considered disabling.
For these reasons, the Court will not
fault the ALJ’s decision to assign Dr. Johnson’s opinion little
weight.
B.
Mark Pentz.
Mark Pentz, a Licenced Professional Counselor, testified that,
due to being loud, argumentative, and defensive Plaintiff would
have difficulty adjusting to a work setting.
Plaintiff contends
that the ALJ wrongfully assigned limited weight to Mr. Pentz’s
opinion because he is not “an acceptable medical source.”
(R.59).
Plaintiff further contends SSR 06-03p provides that evidence from
“non-acceptable medical sources” like licensed professional
counselors can be used to show the severity of a claimant’s
impairments.
(Doc. 16 at 26).
This is true but not dispositive
here.
25
The ALJ did not devalue Mr. Pentz’s opinion simply because he
did not meet the criteria to be an acceptable medical source.
The
ALJ also stated that Mr. Pentz’s assessment of Plaintiff’s capacity
for work “is also not supported by the objective medical findings
of record, the claimant’s overall improvement with proper
medication management, and the claimant’s own reported daily
activities.”
(R.59).
Having reviewed the record, the Court finds
that substantial evidence does exist in this record to support the
ALJ’s decision to accord limited weight to Mr. Pentz’s opinion.
C.
Dr. Fink.
Plaintiff asserts that the ALJ “cherry picked” the evidence
without justification by crediting part of Dr. Fink’s testimony but
refusing to accept his conclusion that Plaintiff had moderate
difficulty in maintaining concentration persistence and pace.
(Doc. 16 at 27).
Implicit in this argument is the notion that the
ALJ’s assessment of Plaintiff’s work capacity did not include a
proper evaluation of one of his impairments.
Defendant counters that Dr. Fink’s knowledge of Plaintiff was
derived only from his medical records inasmuch as Dr. Fink never
had personal contact with Plaintiff.
Defendant notes further that
numerous of Plaintiff’s mental status examinations demonstrate
that: plaintiff had good attention and concentration (R.732); his
cognitive function and memory were intact (R.442, 732, 989, 1009,
1023, 1025-27, 1028-30, and 1233); and his thought process was
26
linear, organized, logical and goal directed (R.429, 431, 433, 561,
574, 627, 635, 732, 983, 985-87, 1009, 1022-23, 1025-30, and 1233).
(Doc. 22 at 32).
The ALJ also stated that he did not credit Dr.
Fink’s findings regarding Plaintiff’s ability to maintain
concentration, persistence and pace because that aspect of Dr.
Fink’s findings finds no support in the records compiled by
Plaintiff’s treating physicians.
The ALJ’s conclusion in this
regard has not been contradicted by any citation to the record from
Plaintiff that indicates otherwise.
Thus, the Court will not fault
the ALJ for accepting only those findings by Dr. Fink that actually
find support in the medical records.6
4.
Whether Substantial Evidence Supports the ALJ’s Residual
Functional Capacity (“RFC”) Assessment?
Plaintiff asserts that the ALJ’s RFC assessment is unsupported
by substantial evidence for three reasons: (1) that his various
mental/emotional impairments “prevent him from meeting the basic
mental demands of unskilled work”; (2) that the ALJ’s RFC
assessment failed to incorporate consideration of the side-effects
of his medications; and (3) that the ALJ failed to include
restrictions for Plaintiff’s non-severe low back pain and pulmonary
embolism.
(Doc. 16 at 31-33).
6
Plaintiff also argues that the ALJ impermissibly substituted his judgement for that of Dr.
Fink. Our reading of the ALJ’s opinion persuades the Court that the ALJ did nothing of the kind.
Rather, she based her decision on the medical records compiled by the treating physicians.
27
Plaintiff’s argument that his various mental/emotional
impairments prevent him from meeting the basic requirements of
unskilled work does not find medical support in the record.
While
the record does indicate that Plaintiff has severe impairments in
the form of depression, post-traumatic stress disorder, anxiety
disorder, and bipolar disorder, no physician has concluded credibly
that Plaintiff is disabled from these conditions.7
Plaintiff’s
assertions that these conditions were not adequately reflected in
the ALJ’s RFC assessment are just that, assertions.
Because
medical support for Plaintiff’s argument is lacking and in some
ways even contradicted by the record, we find that the ALJ’s
restriction of Plaintiff to work involving only “occasional
interaction with co-workers, supervisors, and the public”
reasonably reflect that Plaintiff’s established mental/emotional
restrictions. (R.54).
Plaintiff’s argument that the ALJ’s RFC determination was
defective because it did not adequately consider the side-effects
of his medications on his ability to work is unpersuasive.
Here
again, the Court has found nothing in the record indicating that
any medical source supports the conclusion that the side-effects
from Plaintiff’s medications would significantly impair his ability
to work.
Plaintiff’s self-reporting that one of his medications
7
The Court has already found that Dr. Johnson’s opinion that Plaintiff would be unable to
work for one year due to back problems and ongoing mental health problems (R.613) was entitled to
little weight because it was unsupported by clinical and laboratory findings. See pages 24-25 ante.
28
makes him tired and another makes him jittery (Doc. 16 at 32) do
not suffice to establish that these side-effects are disabling.
Plaintiff’s failure to cite any medical source for this proposition
requires a finding that the ALJ’s RFC determination properly
omitted any discussion of medication side-effects.
With respect to Plaintiff’s argument (Doc. 16 at 33) that the
ALJ’s RFC determination failed to account for his non-severe
physical impairments (back pain and pulmonary embolism), the Court
has already found (pages 20-21 ante) that the record contains no
documentation from any medical source indicating that these
conditions present significant impairments to Plaintiff’s ability
to do physical work.
Accordingly, we reject Plaintiff’s argument
that the ALJ’s RFC assessment improperly excluded physical
limitations caused by back pain or pulmonary embolism.
5.
Whether Substantial Evidence Supports the ALJ’s
Determination of Plaintiff’s Credibility?
Plaintiff’s argument with the ALJ’s assessment of his
credibility is based on the premise that the ALJ placed undue
emphasis on his acknowledgments concerning his activities of daily
living, his receipt of unemployment benefits, and his filing of job
applications during the period for which he claims disability.
(Docs. 16 at 34-35).
It is certainly true that the ALJ’s
conclusion that Plaintiff was exaggerating his symptoms was
partially based on these considerations.
29
However, as the Defendant
notes (Doc. 22 at 36-37): (1) the applicable regulations permit an
ALJ to make a finding of non-disability based upon a claimant’s
pattern of daily activities (20 CFR § 404.1529(c)(3)(I); and (2) a
claimant’s applications for employment during a period of alleged
disability call his credibility into question.
Gardner v. Astrue,
No. 12-193, 2013 WL 1207987 at 11 (M.D.Pa. March 25, 2013.
The Court also notes (as did the ALJ at Page 55 of the record)
that the Plaintiff sought hospitalization in August of 2010 due to
allegations of suicidal ideation.
At that time the examining
physician, Dr. Dilwyn Symes, M.D., stated unequivocally that
Plaintiff’s motives for coming to the hospital:
“...involved a long-term pattern of utilizing drugs and
alcohol, primarily as an excuse for poor behaviors.
He
has now got some legal troubles that do involve theft,
which he claims to have happened while under the
influence of drugs and alcohol.
Whatever the truth of
these legal charges, it was apparent to the treatment
team here that he was not suffering from any major
psychiatric illness.
That is to say, he was not
psychotic, manic, clinically depressed, suffering from
OCD, etc.
His statements of suicide were clearly
manipulative in nature with a clear-cut secondary gain to
avoid being jailed.
of malingering.”
I would put this under the category
(R.at 306).
30
Evidence such as this indicating a Plaintiff displayed a
willingness to falsify or exaggerate his symptoms is obviously
supportive of the ALJ’s decision to attach only partial
credibility to his statements.
For this and the other reasons
stated above, the Court cannot conclude that the ALJ’s
evaluation of Plaintiff’s credibility was unsupported by
substantial evidence.
6.
Whether the ALJ Erred by Not Finding That Plaintiff Meets
the Criteria of Medical Vocational Guideline 201.12?
As Plaintiff states (Doc. 16 at 36), Medical Vocational
Guideline 201.12 provides, in pertinent part: “...individuals
approaching advanced age (age 50-54) may be significantly limited
in vocational adaptability if they are restricted to sedentary work
when such individuals have no past work experience or can no longer
perform vocationally relevant past work and have no transferable
skills, a finding of disabled ordinarily applies.” (emphasis
supplied).
Plaintiff then continues to contend that Guideline
201.12 clearly supports a finding of disability in this case.
Court must disagree.
The
The Court has already noted (pages 28-29
ante) that the ALJ’s RFC determination is based upon substantial
evidence of record.
That RFC determination specifically provides
that claimant is physically capable of performing work at all
exertional levels.
Because Guideline 201.12 requires that an
individual approaching advanced age (such as Plaintiff) be
31
restricted to sedentary work before a finding of disability
thereunder is warranted, and because the ALJ’s RFC assessment does
not limit Plaintiff to sedentary work, Plaintiff’s argument
regarding the applicability of Guideline 201.12 must be rejected.
7.
Whether the ALJ’s Finding that Plaintiff Can Return to
His Past Work As A Kitchen Helper is Based Upon
Substantial Evidence of Record?
The Court does agree that the ALJ’s finding (R.at 59) that the
claimant is capable of performing his past relevant work as a
kitchen helper is somewhat suspect.
The ALJ had acknowledged in
his RFC determination that Plaintiff’s dependence on blood thinners
had precluded his work at heights or around moving mechanical
parts.
(R.54).
It seems obvious that the ALJ made this finding
because Plaintiff could bleed excessively if he took a fall or came
into contact with moving machinery.
One might well assume that a
kitchen helper would encounter knives and other sharp objects
routinely and would, thus, face the same hazards inherent in being
around moving machinery.
Nevertheless, in response to the ALJ’s
hypothetical question concerning whether claimant could perform his
past relevant work as a dishwasher/bus person, the vocational
expert stated that such work was not classified as a hazardous
occupation in the DOT.
The vocational expert went on to state that
the kitchen helper job would be within the framework of the
impairments lists in the hypothetical question both as actually
32
performed and as generally performed.
(R.107-08).
This testimony
by the vocational expert constitutes substantial evidence and
afforded the ALJ a reasonable basis for her conclusion that
Plaintiff could perform his past relevant work as a kitchen
helper.8
Accordingly, the Plaintiff’s argument regarding the ALJ’s
determination that he could perform his past relevant work as a
kitchen helper must fail.
VIII.
Conclusion.
For the reasons stated above, the Court finds that the
Commissioner’s decision was supported by the requisite substantial
evidence and that the Commissioner’s decision to deny benefits in
this case must be affirmed.
An Order to that effect will be filed
contemporaneously with this Memorandum.
BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: January 25, 2017
8
We note, too, that the ALJ also found, on the basis of substantial evidence, that Plaintiff
could perform other jobs (e.g. day worker, marker, and mail clerk) that exist in significant numbers
in the national economy. Thus, even if the Court found that Plaintiff could not perform his past
relevant work, the ALJ’s ultimate finding of non-disability would stand.
33
34
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