Motes v. Colvin
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Hon. John E. Jones III
CAROLYN W. COLVIN, ACTING :
COMMISSIONER OF SOCIAL
April 11, 2017
The above-captioned action is one seeking review of a decision of the
Acting Commissioner of Social Security (“Commissioner”),1 denying Plaintiff
Eugene Motes’ application for Social Security Disability Insurance Benefits
(“DIB”), pursuant to 42 U.S.C. § 405(g).
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and paid
social security taxes. Motes met the insured status requirements of the Social
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin,
Acting Commissioner of Social Security as the defendant in this suit.
Security Act through December 31, 2013. (Tr. 15).2
Motes filed his application for DIB under Title II of the Social Security Act
(“Act”), on October 10, 2012, alleging disability beginning April 8, 2012. (Tr. 13).
Motes had been diagnosed with several impairments, including left shoulder pain,
sleep apnea, diabetes mellitus, obesity, ADHD, schizophrenia, bipolar disorder,
depression, and anxiety. (Tr. 15). On June 13, 2013, Motes’ application was
initially denied by the Bureau of Disability Determination. (Tr. 13 and 78).
A hearing before the Administrative Law Judge (“ALJ”) Office of Disability
and Adjudication and Review of the Social Security Administration was conducted
on November 6, 2014. (Tr. 31-77). At the hearing, Motes was represented by
counsel, and a Vocational Expert testified. (Id.). On January 30, 2015, the ALJ
issued a decision denying Motes’ application. (Tr. 13-25). On May 17, 2016, the
Appeals Council declined to grant review. (Tr. 1-6). Thus, the ALJ’s decision
stood as the final decision of the Commissioner.
Motes filed a complaint before this Court on June 24, 2016. (Doc. 1).
Motes also filed an application to proceed in forma pauperis (Doc. 2), which the
Court granted. (Doc. 3). After supporting and opposing briefs were submitted
References to “Tr. __” are to pages of the administrative record filed by the Defendant
as part of the Answer (Docs. 7 and 8) on September 6, 2016.
(Docs. 10, 12, 13), the appeal3 became ripe for disposition.
Motes appeals the ALJ’s determination on four grounds: (1) substantial
evidence does not support the ALJ’s step three evaluation; (2) substantial evidence
does not support the ALJ’s RFC assessment; (3) the ALJ failed to properly weigh
the opinion evidence; and (4) the ALJ improperly discounted Motes’ credibility.
For the reasons set forth below, the decision of the Commissioner will be affirmed.
Motes was forty-four years of age on the date last insured; has a high school
education and is able to communicate in English; and has past relevant work
experience as a warehouse laborer. (Tr. 23, 24).
In the late hours of February 24, 2012, Motes presented to the Holy Spirit
Hospital Behavioral Health Center with complaints of anxiety due to nightmares
and visions of past childhood abuse, including physical abuse by his parents. (Tr.
281). He described having nightmares of killing his family and thoughts of
walking in front of the train. (Id.). Motes also complained of declined sleep and
appetite, weight loss, negative self-talk and thoughts. (Id.). It was noted that
Under the Local Rules of Court, “[a] civil action brought to review a decision of the
Social Security Administration denying a claim for social security disability benefits” is
“adjudicated as an appeal.” M.D. Pa. Local Rule 83.40.1.
Motes had stopped taking his prescribed Prozac and Concerta. (Id.). Motes was
discharged on February 25, 2012 with a diagnosis of depression, suicidal ideation,
hyperglycemia, and uncontrolled diabetes mellitus. (Tr. 285).
On April 3, 2012, Motes underwent a psychiatric evaluation with Sylvestre
De La Cruz, M.D. (Tr. 339). Motes related to Dr. De La Cruz that he has been
feeling depressed in mood associated with anhedonia, insomnia, and a decrease in
appetite. (Tr. 339). On mental examination, Dr. De La Cruz found Motes’
concentration to be fairly good, he had good attention and focus, denied any
suicidal or homicidal thoughts, and also denied any delusions or hallucinations of
any type. (Tr. 341). Dr. De La Cruz did not see any conclusive evidence of
ADHD but noted that Motes has a history of having been physically and
emotionally abused by both of his parents and from that, is experiencing
nightmares and flashbacks of the abuse. (Id.). Motes was diagnosed with bipolar
disorder and PTSD. (Id.). Motes stated that he preferred Depakote and Prozac,
which he was prescribed, and was referred for individual counseling for PTSD.
On April 16, 2012, Motes presented to Pinnacle Health’s Kline Health
Center for evaluation of his diabetes. (Tr. 304). V. Gorrepati, MD, noted that
Motes is 5'9" tall, weighed 220.6 pounds and had a BMI of 32.11. (Tr. 305). Dr.
Gorrepati’s assessment/plan notes diabetes mellitus, type 2; obstructive sleep
apnea, stable; narcolepsy, no signs since nine years and not on medication; bipolar
1 disorder, stable and on medication; and depression, stable and on medication.
Motes returned to the Kline Health Center on September 17, 2012 for a
follow-up of his diabetes. (Tr. 301). Motes stated that he had run out of Novalog
and his blood glucose was in the low 300s. (Id.). On psychiatric evaluation, his
symptoms included anxiety, depression, and insomnia. (Tr. 302). Motes was
given samples of Lantus and Humalog and an appointment was set up with a social
worker about assistance with medications. (Tr. 303).
On December 10, 2012, Motes presented to the Pinnacle Health emergency
room with complaints of high blood sugar, stating that he was out of Novalog for
the past three weeks. (Tr. 349). Motes was diagnosed with hyperglycemia,
uncontrolled diabetes, and medication noncompliance. (Tr. 354). He was further
advised to stay on his insulin. (Id.).
On March 26, 2013, Christine Daecher, D.O., performed a consultative
examination. (Tr. 405-12). Dr. Daecher noted Motes’ weight was 226 pounds and
that he had a BMI of 34.16. (Tr. 409). Dr. Daecher further observed that sensation
diminished in Motes’s early left foot, had some degree of diabetic neuropothy in
his feet, and that he exhibited anxious mood and blunted affect. (Tr. 411). With
regard to his complaints of left shoulder pain, Dr. Daecher noted pain with flexion
and abduction, only occurring with shoulder shrugging type movements or
shoulder rolling. (Tr. 408, 410). Dr. Daecher diagnosed diabetes mellitus type II,
uncontrolled; joint pain (shoulder), and generalized anxiety (although, Dr. Daecher
notes that she did not fully evaluate Motes for his mental health conditions). (Tr.
On May 28, 2013, Stanley E. Schneider, Ed.D., performed a psychological
consultative examination. (Tr. 419). During examination, Dr. Schneider observed
Motes as being highly anxious, nervous, and apprehensive. (Tr. 421). Dr.
Schneider notes his mood reflects both anxiety and underlying depression; his
affect was anxious; and that he is agoraphobic. (Tr. 425). Motes reported to Dr.
Schneider that he experiences both auditory and visual hallucinations, and admitted
to recurrent suicidal ideation, but denied any plan or intent, and any homicidal
thinking. (Id.). Dr. Schneider also noted that Motes has memory deficits on a
short-term nature, and that his attention and concentration are significantly
impaired. (Id.). Dr. Schneider diagnosed posttraumatic stress disorder, panic
disorder with agoraphobia, bipolar disorder, and ADHD. (Tr. 426).
On June 11, 2013, Louis Poloni, Ph.D., a state agency psychologist,
reviewed Motes’ claim for benefits and opined that, despite a moderate restriction
in activities of daily living, maintaining social functioning, and concentration,
persistence, or pace, Motes had the mental residual functional capacity to perform
simple, unskilled work in an isolated setting. (Tr. 85, 90).
again to the Pinnacle Health emergency room on September 1, 2013. (Tr. 445).
His complaints included high glucose, headaches, arm and leg tingling, and
increased thirst and urination. (Tr. 445, 447). He stated that he did not have test
strips for three months. (Tr. 445). Motes was diagnosed with dehydration and
mild hyperglycemia. (Id.). Psychiatric examination revealed normal affect,
judgment and insight, normal memory, and normal concentration. (Tr. 447).
Discharge instructions provide that Motes continue to do the great job in keeping
his glucose controlled in spite of not having test strips, and stay well hydrated. (Tr.
On follow up from his emergency room visit, Motes presented to Pinnacle
Health’s Kline Health Center on September 3, 2013, where he was seen by Allyson
Miller, a nurse practitioner. (Tr. 487). Ms. Miller’s notes indicate that Motes was
looking to obtain glucose strips and that he is not currently taking insulin due to
not having insulin strips. (Id.). Motes denied any complaints other than feeling
tired more than normal. (Id.). On evaluation, Motes’ mood and affect were
appropriate and he was oriented to time, place, person, and situation. (Tr. 489).
Ms. Miller’s assessment/plan included diabetes type 2 with renal changes,
uncontrolled; microproteinuria; diabetes type 2 with neurologic changes, refer to
podiatry in regards to tingling in feet; unspecified type schizophrenia; and
hypertension. (Tr. 489).
A week later, on September 11, 2013, Motes had a follow-up appointment
with Ms. Miller. (Tr. 484). Motes stated he was feeling much better, and about to
do more exercise and has less fatigue. (Tr. 484). Motes continued treatment with
Ms. Miller through April 10, 2014. (Tr. 465). Ms. Miller’s December 9, 2013
notes indicate that Motes’ physical therapy for his shoulder is going fantastic, his
psych issues are stable with no recent changes in his medications, and her
assessment/plan included diabetes mellitus type II uncontrolled; left shoulder pain;
sleep apnea; bipolar 1 disorder; and schizophrenia. (Tr. 455, 458). Ms. Miller’s
March 3, 2014 notes indicate that Motes received podiatry shoes and that his BiPap
machine was working and Motes sleeps with no apnea. (Tr. 460). On physical
examination, he had a normal range of motion, muscle strength, and stability in all
extremities with no pain on inspection. (Tr. 463). On April 10, 2014, Motes saw
Ms. Miller for his one month follow up for his diabetes. (Tr. 465). Ms. Miller
notes that Motes is working out, weight lifting, eating much better, and that he
reports that his clothes are fitting better. (Id.).
Residual Functional Capacity Assessments
On March 26, 2013, Dr. Daecher, completed a physical residual functional
capacity assessment after conducting a consultative examination of Mr. Motes.
(Tr. 413). Dr. Daecher opined that Motes was capable of frequently lifting and
carrying 20 pounds and occasionally lifting and carrying 100 pounds, but could
only occasionally lift above chest height; had no limitations in standing, walking,
sitting, pushing and pulling; could frequently bend, kneel, stoop, crouch, balance,
and climb; and could occasionally reach. (Tr. 413, 414).
Dr. Schneider completed a mental medical source statement of Motes’
ability to do work-related activities on May 28, 2013. (Tr. 428). Dr. Schneider
opined that Motes had extreme limitations in most mental work-related areas,
except in the area of carrying out simple instructions, wherein Dr. Schneider
opined that Motes had marked limitations. (Id.).
Dr. Poloni, a state agency psychologist, reviewed Motes’ claim for benefits
on June 11, 2013, and opined that Motes had moderate restrictions in activities of
daily living, maintaining social functioning, and concentration, persistence, or
pace. (Tr. 85, 90). Despite these moderate limitations, Dr. Poloni opined that
Motes had the mental residual functional capacity to perform simple, unskilled
work in an isolated setting. (Id.). Dr. Poloni further opined that Dr. Schneider’s
opinion should be accorded little weight because his extreme findings were
inconsistent with the medical evidence. (Tr. 90).
Ms. Miller also completed a physical residual functional capacity
assessment, as well as a diabetes mellitus residual functional capacity assessment.
(Tr. 438, 493). Ms Miller opined that Motes could frequently lift and carry less
than 10 pounds; sit for less than 2 hours, and stand and/or walk for 6 hours in an 8hour day. (Tr. 440, 494). She provided that he could occasionally perform
postural activities; he should avoid all exposure to extreme heat, humidity,
wetness, and pulmonary irritants; that he was limited in the use of his hands and
fingers; and that he could not reach overhead. (Tr. 440-41, 495-96). Ms. Miller
further opined that Motes needed to change positions at will; needed to take
unscheduled breaks; that he constantly experienced pain or other symptoms severe
enough to interfere with attention and concentration; and that he was incapable of
even low stress jobs and would likely be absent from work more than four days per
month. (Tr. 439-41, 493-96).
The Administrative Hearing
On November 6, 2014, Motes’ administrative hearing was conducted. (Tr.
31-77). At that hearing, Motes testified that he had fluctuating blood sugar levels,
but that they were getting better with an improved diet. (Tr. 51). Additionally, his
orthotic shoes helped him to walk better. (Tr. 56). Motes also testified that he had
anxiety and rarely left the home alone; he sometimes had irritability and would
stay in his bedroom for hours; had difficulty being around others; and had
difficulty finishing things he started, such as chores. (Tr. 57, 58, 61-63). He
further testified that he took naps two to three times per week for approximately
two hours. (Tr. 58-59). Motes also stated that his medications caused drowsiness
and nausea, but that he drinks milk to cope with the nausea. (Tr. 54, 55).
Motes further testified that he did graphic designs on the computer for tshirts and sweatshirts. (Tr. 44-46). He would spend four or five hours a day on the
computer, twice a week; however, he testified that he has not used the computer in
about a month. (Tr. 46). Motes testified that he goes to the gym, but sometimes
loses the desire to stay once he gets there. (Tr. 60). Motes also testified that about
two to three weeks before the ALJ hearing, he and his family went to Hershey
Park, located about thirty-five miles from his house. (Tr. 46). He stated that he
had fun, and that he did pretty well with the crowds. (Tr. 46, 48).
After Motes testified, Daniel Elman, an impartial vocational expert, was
called to give testimony. (Tr. 71). The ALJ asked Mr. Elman to assume a
hypothetical individual with Motes’ age, education, and work history, who was
limited to light work, but could only occasionally climb ramps and stairs, but never
ladders, ropes, and scaffolds, and could frequently balance, stoop, kneel, crouch,
and crawl. (Tr. 72). Furthermore, the hypothetical individual could not be a
commercial driver, and must avoid all exposure to hazards, such as inherently
dangerous moving machinery and unprotected heights. (Tr. 72, 73). Additionally,
the hypothetical individual would be limited to routine, repetitive tasks, with the
SVP 1 to 2 level, must work in a static, low stress environment with infrequent
changes, and changes that did occur would be explained and demonstrated and
could be learned in 30 days or less. (Tr. 73). Finally, the work could not be fast
paced or ask for production time quotas, and there could only be occasional
interaction with the general public. (Id.).
Mr. Elman opined that, given these restrictions, the hypothetical individual
would be unable to perform Motes’ past relevant work. (Id.). However, the
individual would be capable of performing three jobs that exist in significant
numbers in the national economy: a housekeeping cleaner, a photocopy machine
operator, and a folding machine operator. (Id.). Mr. Elman testified that, if an
individual were limited to incidental or no contact with the general public, and only
occasional, superficial interaction with coworkers and supervisors, that there would
only be a reduction from 18,000 to 9,000 nationally in the photocopy machine
operator job. (Tr. 73, 74). Finally, Mr. Elman opined that if an individual was
further limited to occasional reaching with the left upper extremity, that neither the
folding machine operator nor the photocopy machine operator would change, but
the housekeeping cleaner would have to be removed. (Tr. 74).
In an action under 42 U.S.C. § 405(g) to review the Commissioner’s
decision denying a plaintiff’s claim for disability benefits, the district court must
uphold the findings of the Commissioner so long as those findings are supported
by substantial evidence. Substantial evidence “does not mean a large or
considerable amount of evidence, but ‘rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’ ” Pierce v.
Underwood, 487 U.S. 552, 656, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed.
126 (1938)). Substantial evidence has been described as more than a mere scintilla
of evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213
(3d Cir. 1988). In an adequately developed record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed. 2d 131 (1966).
Substantial evidence exists only “in relationship to all the other evidence in
the record,” Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981), and “must take
into account whatever in the record fairly detracts from its weight.” Universal
Camera Corp.v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1971).
A single piece of evidence is not substantial evidence if the Commissioner ignores
countervailing evidence or fails to resolve a conflict created by the evidence.
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The Commissioner must
indicate which evidence was accepted, which evidence was rejected, and the
reasons for rejecting certain evidence. Johnson v. Comm’r of Soc. Sec., 529 F.3d
198, 203 (3d Cir. 2008). Therefore, a court reviewing the decision of the
Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981).
The plaintiff must establish that there is some “medically determinable basis
for an impairment that prevents him from engaging in any substantial gainful
activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247 F.3d 34,
38-39 (3d Cir. 2001) (quoting Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999))
(internal quotations omitted). “A claimant is considered unable to engage in any
substantial gainful activity ‘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 . . . .’”
Fargnoli, 247 F.3d at 39 (quoting 42 U.S.C. § 423(d)(2)(A)). The Commissioner
follows a five-step inquiry pursuant to 20 C.F.R. § 404.1520 to determine whether
the claimant is disabled. In Plummer, the Third Circuit Court of Appeals set out
In step one, the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity. 20 C.F.R. §
[404.]1520(a). If a claimant is found to be engaged in substantial
activity, the disability claim will be denied. Bowen v. Yuckert, 482 U.S.
137, 140 (1987) . . . . In step two, the Commissioner must determine
whether the claimant is suffering from a severe impairment. 20 C.F.R.
§ 404.1520(c). If the claimant fails to show that her impairments are
“severe,” she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant’s impairment to a list of impairments presumed severe enough
to preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its equivalent, the analysis
proceeds to steps four and five. Step four requires the ALJ to consider
whether the claimant retains the residual functional capacity to perform
her past relevant work. 20 C.F.R. § 404.1520(d). The claimant bears the
burden of demonstrating an inability to return to her past relevant work.
Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation, the evaluation
moves to the final step. At this stage, the burden of production shifts to
the Commissioner, who must demonstrate the claimant is capable of
performing other available work in order to deny a claim of disability.
20 C.F.R. § 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national economy which the
claimant can perform, consistent with her medical impairments, age,
education, past work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the claimant’s impairments
in determining whether she is capable of performing work and is not
disabled. See 20 C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step. See, [sic] Podedworny
v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).
Plummer, 186 F.3d at 428.
Weight Accorded to Medical Opinions
Motes argues that the ALJ erred in according little weight to Ms. Miller’s
opinion - Motes’ treating nurse practitioner, little weight to the psychological
consultative examination doctor’s opinion, Dr. Schneider, and finally, no weight to
the state agency SDM’s opinion.
Medical opinions are “statements from acceptable medical sources that
reflect judgments about the nature and severity of [a claimant's] impairment(s),
including ... symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairment(s), and [a claimants] physical or mental restrictions.” 20
C.F.R. § 404.1527(a)(2) (emphasis added). Only licensed physicians (medical or
osteopathic doctors), licensed or certified psychologists, licensed optometrists,
licensed podiatrists, and qualified speech-language pathologists are considered
“acceptable medical sources.” 20 C.F.R. § 404.1502(a); see 20 C.F.R. §
404.1513(a). Evidence from “other sources” that are not “acceptable medical
sources” ... are not entitled controlling weight. See 20 C.F.R. § 404.1513(a);
Social Security Ruling (SSR) 96–2p (rule for according controlling weight to
“treating source medical opinions”); SSR 06–03p; Hartranft v. Apfel, 191 F.3d
358, 361 (3d Cir. 1999; cf. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996)
(Opinions from “other sources” can be accorded “less weight than opinions from
acceptable medical sources”).
Any medical opinion from an acceptable medical source, unless it is
designated a controlling treating medical opinion, must be analyzed according to
factors set forth in the Code of Federal Regulations. 20 C.F.R. § 404.1527(c).
These factors include: the examining relationship, the length of the treatment
relationship and frequency of visits, nature and extent of the treatment relationship,
whether the medical source supports the opinion with medical evidence, whether
the opinion is consistent with the record as a whole, the medical source’s
specialization, and other factors that tend to support or contradict an opinion. Id.
Motes’ first argument is that the ALJ erred in according limited weight to
treating nurse practitioner, Ms. Miller’s opinion. The record reflects that Ms.
Miller is a nurse practitioner who treated Motes a total of six times, beginning on
September 13, 2013. As set forth above, only licensed physicians (medical or
osteopathic doctors), licensed and certified psychologists, licenses optometrists,
licensed podiatrists, and qualified speech-language pathologists are considered
acceptable medical sources. 20 C.F.R. § 404.1502(a). A nurse practitioner is not
an acceptable medical source under the regulations; therefore, a nurse
practitioner’s opinion cannot be given controlling weight. However, an ALJ may
consider a non-acceptable medical opinion to assess severity of impairments and
functional effect, and my reject or accept the opinion after explaining the reasons
for doing so. SSR 06-03p; Burnett v. Comm’r of Soc. Sec. Admin, 220 F.3d 112,
122 (3d Cir. 2000) (explaining that an ALJ must consider all non-medical evidence
and explain why it rejects or accepts such testimony).
Motes argues that the ALJ failed to explicitly address the checklist factors in
considering Ms. Miller’s opinion and incorrectly found Ms. Miller’s opinion to be
inconsistent with objective evidence in the record. To support his objection, Motes
points to consistencies between the RFC questionnaire completed by Ms. Miller
and Ms. Miller’s own previous treatment notes. However, Motes fails to address
the contradictory and inconsistent evidence found throughout the medical records
for this case.
For example, the ALJ noted that physical examinations documented normal
range of motion of Motes’ upper and lower extremities, normal motor strength of
the upper and lower extremities, normal sensation, normal fine motor movements,
and normal gait and station. (Tr. 353, 446-47, 463, 481, 489). The ALJ further
noted that recent treatment records indicate that Motes had been working out and
weight lifting. (Tr. 465). As for Motes’ mental status, the ALJ notes that
examinations documented normal memory and concentration. (Tr. 341, 447).
Finally, the ALJ adequately addressed that Ms. Miller is Motes’ treating nurse
practitioner, cited her medical notes throughout the decision, and discussed the
inconsistencies of her opinion with the other medical evidence of record. Thus, the
ALJ adequately explained his allocation of weight to Ms. Miller’s opinion, and the
record supports this determination.
Motes next argues that the ALJ erred in assigning little weight to the
consultative examiner, Dr. Schneider, while assigning significant weight to the
state agency psychological consultant, Dr. Poloni. Motes argues that Dr.
Schneider’s opinion “trumps” Dr. Poloni’s, since Dr. Schneider examined Motes.
However, a non-treating, non-examining medical opinion must be analyzed
according to the factors set forth above to determine its weight, and may ultimately
be entitled to more than little, if any, weight. In fact, a non-treating, nonexamining medical opinion may be allocated greater weight than other acceptable
and non-acceptable medical sources, provided the ALJ gives adequate explanation
for its determination. SSR 96-6p; 20 C.F.R. § 04.1527(c); Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000); Hartranft v. Apfel, 181 F.3d 358, 361 (3d Cir. 1999).
In the case at hand, the ALJ explained why he afforded Dr. Schneider’s
opinion little weight and Dr. Poloni’s opinion significant weight:
[Dr. Schneider] found that the claimant had marked
limitation in his ability to carry out simple instructions and
extreme limitation in his ability to understand and
remember simple instructions, to make simple work related
decisions, and to interact appropriately with the public
(Exhibit B7F). This opinion was given limited weight
because it is based upon an isolated examination and it
appears to rely heavily on the subjective report of
symptoms and limitations provided by the claimant. In
addition, the totality of the evidence does not support the
opinion. Mental status examinations generally documented
calm motor behavior, appropriate affect, coherent thought
processes, normal thought content, intact memory, and
normal concentration (see, Exhibits B3F, B10F, B13F, and
B14F). Further, the claimant is able to maintain personal
needs and grooming, take care of pets, prepare simple
meals, complete household chores, attend appointments,
shop in stores, go to the gym, take vacations, feed those in
need, use the computer, read daily, and watch television ....
[Dr. Poloni, however] determined that the claimant had
moderate limitations in the areas of understanding and
memory, sustained concentration and persistence, social
interaction, and adaptation, but was able to perform simple
unskilled work in an isolated setting (Exhibit B2A). He
found that the claimant could understand and follow simple
instructions, behave appropriately, avoid hazards, and make
independent decision (Exhibit B2A). [Significant] weight
[was given] to [this] opinion of [Dr. Poloni], who is well
qualified by reason of training and experience in reviewing
an objective record and formulating an opinion as to
limitations. [Dr. Poloni] is deemed to possess specific
understanding of our disability programs and their
evidentiary requirements. Further, his assessment is
consistent with and supported by the medical and other
(Tr. 22, 23).
The ALJ further articulated that while at times, mental status examinations
documented depressed, anxious, or irritable mood, blunted affect, minimal eye
contact, nervous behavior, and pressured speech (Exhibits B3F/1; B6F/7; B7F3, 6-7;
B13F/7), mental status examinations also documented normal mood and affect,
normal appearance/good hygiene, good eye contact, calm motor behavior, normal
speech, coherent thought processes, normal thought content, normal orientation,
normal immediate, recent, and remote memory, normal concentration, good attention
and focus, good arithmetical skills, and normal judgment and insight (Exhibits B2F/2,
6; B3F/1-6; B4F/3, 6; B6F/6-7; B7F/8; B10F/5; B12F/3-4, 9, 12; B13F/1-8; B14F/5,
9, 13). (Tr. 20).
This explanation includes consideration of numerous factors, as required by
section 404.1527(c) of the regulations, namely the specialty of the doctors, the
objective medical evidentiary support, consistency with other evidence at the hearing,
and other factors. Thus, the ALJ’s decision to place significant weight on Dr. Poloni’s
opinion and little weight on Dr. Schneider’s opinion is proper.
Motes also argues that the ALJ “clearly” failed to evaluate the opinion of the
single decision maker (“SDM”), Shanna Smith. This argument has no merit. The
ALJ assigned no weight to the opinion of the SDM Shanna Smith in assessing
Motes’ RFC. SDM’s are non-physician disability examiners who “may make the
initial disability determination in most cases without requiring the signature of a
medical consultant.” Social Security Administration, Notices: 71 FR 45890-01,
2006 WL 2283653.
On May 19, 2010, Frank Cristaudo, the Chief Administrative Law Judge for
the Social Security Administration, issued a memorandum citing POMS Instruction
DI 24510.050C4 and instructing all ALJs that RFC determinations by SDM’s
should not be afforded any evidentiary weight at the administrative hearing level.
Therefore, any assignment of any evidentiary weight to an SDM’s opinion is an
error since they are “not a medical professional of any stripe, and a finding from
such an individual is entitled to no weight as a medical opinion, or to consideration
as evidence from other non-medical sources.” Bolton v. Astrue, Civ. No. 07-612,
2008 WL 2038513, at *4 (M.D. Fla. May 12, 2008) (internal citations omitted); see
Yorkus v. Astrue, Civ. No. 10-2197, 2011 WL 7400189 (E.D. Pa. Feb. 28, 2011).
Here, Ms. Smith is not a medical professional of any stripe, and accordingly,
The “POMS” is the Social Security Administration’s “Program Operations Manual
System,” an internal manual used by Social Security employees to process disability claims.
the ALJ properly accorded no weight to this assessment.
ALJ’s Residual Functional Capacity (RFC) Assessment
Motes’ next argument is lodged against the ALJ’s RFC assessment alleging
that it does not account for his difficulty with concentration, persistence, or pace.
An RFC assessment is defined as the most a claimant can do in a work setting
despite the physical and mental imitations resulting from all of his impairments. 20
C.F.R. § 404.1545(a)(1). The Commissioner must use all relevant evidence in the
record to make the RFC assessment. Id. For a step-five decision to be supported
by substantial evidence, all of a claimant’s credibility established limitations must
be included in an ALJ’s RFC assessment and accurately conveyed to a vocational
expert. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); SSR 96-8p.
In his RFC assessment, the ALJ accounted for Motes’ limitations in
concentration, persistence, or pace by limiting Motes to “routine and repetitive
tasks ...”; working in a “static low stress environment with infrequent changes and
changes that did occur would be explained and/or demonstrated and could be
learned in 30 days or less”; “could not ... perform jobs that are fast paced or have
strict production or time quotas”; and “limited to incidental or no contact with the
general public and only occasional, superficial (i.e., work in the same area, but no
negotiation, arbitration, conflict resolution, direction or management of others, or
group or tandem tasks) interaction with coworkers and supervisors.” (Tr. 18).
In support of Motes’ argument that the ALJ did not account for his difficulty
with concentration, persistence, or pace, he cites Ramirez v. Barnhart, 372 F.3d
546, 554 (3d Cir. 2002). In Ramirez, the Court found that an ALJ did not
adequately convey his step three finding that a claimant “often” had limitations in
concentration, persistence, or pace due to a vocational expert by limiting the
claimant to “no more than simple one or two-step tasks; no travel outside the
workplace; and a reasonable opportunity to receive and make telephone calls.” Id.
The Court explained that the ALJ’s assessment was incomplete because it did not
account for a credibly established deficiency in pace. Motes also provides citations
to courts within the Third Circuit that have remanded under similar circumstances
where an ALJ failed to account for a credibly established limitations in
concentration, persistence or pace. See Steininger v. Barnhart, No. 04-CV-5383,
2005 WL 2077375 at *3 (E.D. Pa. Aug. 24, 2005) (remanding because an ALJ’s
RFC assessment and hypothetical question that the claimant be limited to “simple,
repetitive tasks,” did not adequately account for a moderate limitation in
concentration, persistence, or pace).
However, this case is distinguishable from Ramirez and similar cases cited
to by Motes. Unlike Ramirez, the ALJ’s RFC assessment (and hypothetical
question) in this case conveys a limitation in concentration, persistence, and pace:
routine and repetitive tasks; a static low stress environment with infrequent
changes and changes that did occur would be explained and/or demonstrated and
could be learned in 30 days or less; jobs that are not fast paced or have strict
production or time quotas; and limitation to incidental or no contact with the
general public and only occasional, superficial interaction with coworkers and
supervisors. The ALJ’s assessment accounts for far more than what Motes alleges.
That is, Motes appears to argue that the ALJ’s RFC assessment merely provides a
limitation to low stress and simple repetitive, one-to-two step tasks, and limited
contact with the public and co-workers. However, as shown above, these were
only some of the limitations accounted for by the ALJ. Motes fails to recognize
that the ALJ further accounted for his limitations in the RFC assessment by
including infrequent changes to the work environment, and changes that did occur
would be explained and/or demonstrated and could be learned in 30 days or less,
and jobs that are not fast paced or have strict production or time quotas.
Accordingly, substantial evidence supports the ALJ’s RFC assessment.
Listings 12.03, 12.04, 12.06, and 9.00
Motes argues that he meets the criteria for listings 12.03, 12.04, 12.06, and
9.00. A claimant must establish each element of a Listing to meet a Listing. 20
C.F.R. § 404.1525(d) (“To meet the requirements of a listing, you must have a
medically determinable impairment(s) that satisfies all of the criteria in the
listing.”). As explained by the United States Court of Appeals for the Third
For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria.
“An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 110 S.Ct. 885, 891, 107 L.Ed.2d 967
(1990) (emphasis in original). “For a claimant to qualify
for benefits by showing that his unlisted impairment, or
combination of impairments, is ‘equivalent’ to a listed
impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment.” Id. (emphasis in original).
Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). Thus, if there is one
element that is not satisfied, the ALJ will have substantial evidence to conclude
that a claimant does not meet a Listing. See Williams, 970 F.2d at 1186.
Listings 12.03, 12.04, and 12.06 requires that the claimant’s impairment(s)
satisfy both the diagnostic criteria of paragraph A of each listing, as well as the
paragraph B criteria, which, for these listings, requires at least two of the
following: (1) marked restriction of activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation,
each of extended duration. 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.03, 12.04,
Essentially, Motes’ argument rests on the June 28, 2013 medical opinion of
consultative examiner Dr. Schnieder, at the complete exclusion of all other medical
opinions to establish the criteria for subsection B. As explained above, substantial
evidence supports the ALJ allotting little weight to Dr. Schneider’s opinion that
Plaintiff experienced marked and extreme psychological impairments.
Accordingly, it was not error for the ALJ to not conclude that Motes met the
criteria for Listings 12.03, 12.04, and 12.06.
With regard to Listing 9.00, Motes argues that the ALJ failed to adequately
evaluate his diabetes mellitus. Under Listing 9.00, a claimant with an endocrine
disorder like diabetes mellitus, must show that his endocrine disorder has caused
him to meet or equal the criteria of a listing for another body system. See 20
C.F.R. Pt. 404, Subpt. P, App 1, § 9.00(B)(5). Here, Motes fails to direct the Court
to any evidence supporting his allegation that his diabetes mellitus meets or equals
the criteria of a listing for another body system. Therefore, it was not error for the
ALJ to not conclude that Motes met the criteria for Listing 9.00.
Motes also challenges the ALJ’s credibility evaluation, stating the ALJ erred
by: (1) drawing an adverse inference from Motes’ failure to comply with treatment;
(2) remarking that Motes’ mental conditions improved with treatment; (3) citing
Motes’ activities of daily living; (4) assigning limited weight to a third party
function report; (5) failing to consider Medical Vocational Guideline 201.00(h)(3);
and (6) failing to conduct a proper pain analysis.
The ALJ is charged with the responsibility of determining a claimant’s
credibility. See Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The
ALJ’s decision “must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reason for that weight.”
SSR 96-7p. Ordinarily, an ALJ’s credibility determination is entitled to great
deference. See Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014); Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).
The ALJ provided a detailed explanation to support his determination that
Motes’ allegations regarding the limiting effects of his alleged conditioners were
not fully credible. (Tr. 19-21).
The claimant’s allegations of disability are inconsistent with the
medical evidence ... With regard to the alleged shoulder
impairment ... [s]ubsequent treatment records indicate that the
claimant attended physical therapy and that he was doing “much
better.” With regard to the alleged sleep apnea, the evidence
indicates that this condition is being managed medically and is
amenable to proper control by adherence to recommended medical
management. Treatment records show that the claimant used a
BiPAP machine and slept with no episodes of apnea. With regard
to the alleged diabetes mellitus, medical records reflect evidence
of elevated blood glucose levels, due in part to medication
noncompliance. Recent treatment records indicate that the
claimant[’s] sugars were getting “much better”. In addition,
hospital records indicate that the claimant had an “incredibly well
organized, well disciplined, and reliably practice” exercise routine
to maintain blood glucose levels ... recent treatment records
indicate that he denied any pain or loss of sensation ... While he
reported feeling tired, he indicated that he could still focus and
function ... Physical examinations further documented normal
range of motion of the upper and lower extremities, normal motor
strength of the upper and lower extremities, stability in all
extremities with no pain on inspection, no numbness to the upper
and lower extremities, normal sensation, intact deep tendon
reflexes, normal fine motor movements, normal coordination, and
normal gait and station ... The record indicates that claimant
received [routine and/or conservative treatment] for the above
physical impairments ... The records further indicates that such
treatment has generally been successful, as recent treatment
records show the claimant has been working out and weight
In terms of his alleged mental impairments ... the record indicates
that [subsequent mental health treatment and status examinations]
documented normal mood and affect, normal appearance/good
hygiene, good eye contact, calm motor behavior, normal speech,
coherent thought processes, normal thought content, normal
orientation, normal immediate, recent, and remote memory,
normal concentration, good attention and focus, good arithmetical
skills, and normal judgment and insight ... treatment records
indicate that he denied hallucinations ... Consistently, mental
status examination indicated that the claimant did not appear to
respond to any internal stimulus ... Recent treatment records show
that the claimant had good energy and that he denied medication
(Tr. 19-21) (internal citations to record omitted). The ALJ concluded that:
Other factors lessen the overall credibility of the claimant’s
allegations. Although the claimant alleges that his impairments
preclude him from all work activity, his activities suggest he is not
as limited as one would expect given his reported symptoms and
limitations. The Claimant is able to maintain personal needs and
grooming, take care of pets, prepare simple meals, and complete
household chores. The record supports an ability to attend
appointments, shop in stores, go to the gym, take vacations, use
the computer, design t-shirts and sweatshirts, read daily, and
watch television ... Treatment records indicate that the
claimant[’s] mental conditions were stable. Further, the claimant
reported in medical records that he had good energy, stable mood,
and improved attention and concentration.
(Tr. 21) (internal citations to record omitted).
Motes alleges that the ALJ improperly drew an adverse inference from
Motes’ failure to comply with treatment. However, the ALJ specifically provided
that “[w]hile the claimant’s noncompliance is not a basis for denying his claim, it is
a basis for discounting the overall credibility of the subjective complains ....” (Tr.
21). Motes next argues that the ALJ failed to note that having a stable condition
does not mean that the claimant is not disabled. While this is true, in the context of
the credibility analysis, it is a factor to be considered in assessing credibility. See
Mullins v. Colvin, No. C13-1887, 2014 WL 3563279 at *7 (W.D. Wash. July 18,
2014) (providing that the ALJ’s finding that claimant’s condition improved with
treatment to be a valid reason for assessing credibility); see Parra v. Astrue, 481
F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ is sufficient
to discount a claimant’s testimony regarding severity of impairment”); 20 C.F.R. §
404.1529(c)(3) (effectiveness of medications is a factor the ALJ may consider in
Next, Motes argues that the ALJ wrongly assessed his activities of daily
living, stating that limited daily activities are not on any way inconsistent that he
cannot perform sustained work activities. (Doc. 10 at 27). Here, however, Motes’
reported activities go beyond doing household chores. He reported going to the
gym at least three times a week, volunteering to feed needy people in Harrisburg
one or two times a month, designing t-shirts and sweatshirts on his computer one
or two days a week up to four or five hours at a time, being a learning coach to his
home-school daughter, going to Hershey Park, and traveling to Ocean City,
Maryland for vacation. (Tr. 42-47, 70-71). Insofar as activities of daily living are
properly considered in determining credibility, 20 C.F.R. § 404.1529(c)(3), and the
ALJ cited many bases for his findings that Motes was not fully credible, Motes has
not shown that the ALJ erred on this basis.
Finally the ALJ’s assessment and the medical record belies Motes’ third
party function report completed by his wife, his Medical Vocational Guideline
201.00(h)(3) argument, and pain analysis argument. In this case, the ALJ noted
Motes’ lack of credibility and cited many bases for his findings. The ALJ properly
concluded that his complaints were not consistently supported by medical
treatment records, or by his own description of his medical and mental conditions.
Given these conflicts in the evidence, the ALJ as fact-finder, was entitled to give
greater weight to this other objective medical evidence, objective evidence which
did not support his claims, or third party claims, of total disability. Recognizing
that the “substantial evidence” standard of review prescribed by statue is a
deferential standard of review, which is met by less than a preponderance of
evidence but more than a mere scintilla of proof, the Court concludes that the
ALJ’s decisions assessing this competing proof regarding Motes’ ability to
function despite his various claimed physical and mental impairments was
supported by substantial evidence.
A review of the administrative record reveals that the decision of the
Commissioner is supported by substantial evidence. Accordingly, pursuant to 42
U.S.C. § 405(g), the decision of the Commissioner will be affirmed. An
appropriate order will be entered.
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