Burkhart v. Colvin

Filing 23

ORDER adopting 18 Report and Recommendations. IT IS ORDERED THAT: The Court ADOPTS the Report and Recommendation (Doc. No. 18), of Magistrate Judge Arbuckle; Plaintiffs request for remand or the award of benefits is DENIED; The Commissioners d ecision denying Plaintiffs applications for benefits under Titles II and XVI of the Social Security Act is AFFIRMED; The Clerk of Court is directed to enter judgment in favor of the Acting Commissioner and against Plaintiff; and The Clerk of Court is directed to CLOSE the above-captioned case. SEE ORDER FOR FURTHER DETAILS. Signed by Honorable Yvette Kane on 12/11/18 (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONALD L. BURKHART,
Plaintiff
v.

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security, 1
Defendant

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No. 3:16-cv-01755
(Judge Kane)
(Magistrate Judge Arbuckle)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is the August 29, 2018 Report and Recommendation of Magistrate
Judge Arbuckle (Doc. No. 18), recommending that the Court affirm the Social Security
Commissioner’s final decision denying Plaintiff Donald L. Burkhart (“Plaintiff”)’s application
for disability insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq. Plaintiff filed objections to
Magistrate Judge Arbuckle’s Report and Recommendation (Doc. No. 21), and a brief in support
thereof (Doc. No. 22), on September 21, 2018. The Acting Commissioner of Social Security has
not filed a response to Plaintiff’s objections, and the applicable time period for filing a response
has passed.
In his Report and Recommendation, Magistrate Judge Arbuckle recommends that the
Court affirm the Social Security Commissioner’s denial of Plaintiff’s application for disability
insurance benefits and supplemental security income on the basis that substantial evidence
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The Court notes that since the institution of this action, Carolyn W. Colvin has been succeeded
as Acting Commissioner of the Social Security Administration by Nancy A. Berryhill. Pursuant
to Federal Rule of Civil Procedure 25(d), a public officer’s successor is automatically substituted
as a party in an action brought against the public officer in an official capacity.

supports the Administrative Law Judge (“ALJ”)’s determination that Plaintiff was not disabled,
as defined by the Social Security Act. (Doc. No. 18.) In arriving at this recommendation,
Magistrate Judge Arbuckle rejected Plaintiff’s argument that the ALJ’s assessment that Plaintiff
did not meet Listings 12.02 (organic mental disorders), 12.04 (affective disorders), 12.06
(anxiety related disorders), and 12.08 (personality disorders) at step three of the sequential
evaluation process is not supported by substantial evidence. (Id. at 13-24.) Magistrate Judge
Arbuckle explained that to meet the paragraph B criteria for each of the four identified listings, a
claimant must demonstrate that his disorder results in at least two of an enumerated list of
circumstances. (Id. at 14.) Plaintiff challenges the ALJ’s assessment of three of those
enumerated circumstances: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; and marked difficulties in maintaining concentration, persistence,
or pace. (Id.) First, with respect to the ALJ’s assessment that Plaintiff experienced only a mild
restriction of activities of daily living, Magistrate Judge Arbuckle found that the ALJ’s
determination is supported by substantial evidence because: (1) the ALJ determined that
Plaintiff’s allegations regarding his symptoms were not credible, and Plaintiff did not challenge
the ALJ’s credibility assessment; 2 and (2) the ALJ considered the statements on which Plaintiff

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Plaintiff asserts that Magistrate Judge Arbuckle incorrectly stated that he did not challenge the
ALJ’s credibility determination as to him. (Doc. No. 22 at 10-11.) The Court notes that while
Plaintiff did object to the ALJ’s credibility determination as to Plaintiff in passing (Doc. No. 12
at 36), the pertinent section of Plaintiff’s brief focuses exclusively on the credibility
determinations as to other witnesses and fails to offer any specific objections to the ALJ’s
credibility determination as to Plaintiff (id. at 36-38). The Court need not address arguments
made without specificity. See, e.g., Iturralde v. Berryhill, No. 3:16-cv-1597, 2018 WL 1465273,
at *7 (M.D. Pa. Mar. 1, 2018) (citing Loewen v. Berryhill, No. 16-35174, 2017 WL 6525196, at
*1 (9th Cir. Dec. 21, 2017); Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003)) (declining to address the plaintiff’s argument that the ALJ’s assessment was insufficient
where the plaintiff provided no explanation as to why the assessment was insufficient), adopted
by 2018 WL 1453181 (M.D. Pa. Mar. 23, 2018). Notwithstanding the authority noted supra, the
Court concludes that the ALJ’s assessment of Plaintiff’s credibility is supported by substantial
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relies regarding allegations that Plaintiff only naps and watches television during the day, but
other evidence in the record contradicts those statements. (Id. at 14-17.) Next, with respect to
the ALJ’s assessments that Plaintiff experienced only moderate difficulties in social functioning
and maintaining concentration, persistence, or pace, Magistrate Judge Arbuckle found that the
ALJ’s assessments are supported by substantial evidence and that the evidence relied on by
Plaintiff in support of his argument was either properly discounted over Plaintiff’s objections or
involved a credibility finding not challenged by Plaintiff in his brief. (Id. at 17-24.)
Next, Magistrate Judge Arbuckle found that the ALJ did not err in evaluating the opinion
evidence of record. (Id. at 24-68.) In reaching that conclusion, Magistrate Judge Arbuckle
separately addressed the ALJ’s evaluations of the medical opinions of Dr. Harvey Shapiro, Dr.
Robert Shapiro, and Dr. Douglass Martzluf; the mental impairment questionnaire completed by
Certified Registered Nurse Practitioner Laura Hanes and endorsed by Dr. Satyafit Mukherjee;
the assessments completed by Dr. Soraya Amanullah; the testimony of Karen Burkhart; and the
third-party statement of Kristin Sites. (Id. at 27-68.) Magistrate Judge Arbuckle found that the
ALJ’s assessments of each piece of opinion evidence are supported by substantial evidence. 3
(Id. at 27-33; 37-62.) He also found that the ALJ did not err when he evaluated conflicting
medical opinions by interpreting the objective medical evidence and concluding that one opinion
was more consistent with the entire record than the other. (Id. at 31-33.)

evidence, including contradictions between Plaintiff’s testimony and the objective medical
evidence, as well as inconsistencies within Plaintiff’s testimony (Doc. No. 9-8 at 21-25).
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Magistrate Judge Arbuckle found that even if the ALJ erred in not discussing Dr. Harvey
Shapiro’s December 2013 treatment note, doing so resulted in no obvious prejudice to Plaintiff,
and, therefore, remand is not necessary. (Doc. No. 18 at 36.) Additionally, Magistrate Judge
Arbuckle assumed that Plaintiff has established good cause so as to explain why Kristin Sites’
November 2015 letter was not part of the original administrative record, but concluded that
remand is not required because the letter is neither new nor material. (Id. at 62-68.)
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Plaintiff has filed several objections to Magistrate Judge Arbuckle’s Report and
Recommendation. (Doc. Nos. 21, 22.) First, Plaintiff objects to Magistrate Judge Arbuckle’s
finding that substantial evidence supports the ALJ’s decision when the ALJ discounted multiple
pieces of evidence that supported Plaintiff’s claim. (Doc. No. 22 at 2-5.) Second, Plaintiff
objects to Magistrate Judge Arbuckle’s finding that the ALJ properly relied on Dr. Soraya
Amanullah’s medical opinions despite their temporal remoteness and lack of consideration of all
medically-determinable impairments. (Id. at 5-6.) Third, Plaintiff objects to Magistrate Judge
Arbuckle’s finding that the ALJ did not inappropriately rely on his own lay interpretation of
medical evidence in assessing competing medical opinions. (Id. at 6-10.)
Upon de novo review of those aspects of the Report and Recommendation to which
Plaintiff has specifically objected, 4 together with the administrative record, and having carefully
reviewed the submissions from the parties, the Court finds that Magistrate Judge Arbuckle
thoroughly and meticulously reviewed the evidence and addressed the substance of Plaintiff’s
objections in his Report and Recommendation. The Court also concludes that Magistrate Judge
Arbuckle correctly resolved the issues raised in Plaintiff’s objections. Thus, the Court will not
write separately to address Plaintiff’s objections. Accordingly, the Court will adopt the Report
and Recommendation of Magistrate Judge Arbuckle over Plaintiff’s objections.
AND SO, on this 11th day of December 2018, upon independent review of the record
and applicable law, IT IS ORDERED THAT:
1. The Clerk of Court is directed to substitute Nancy A. Berryhill for Carolyn W.
Colvin as a defendant in the above-captioned matter;
4

The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b) provide that
any party may file written objections to a magistrate judge’s proposed findings and
recommendations. In deciding whether to accept, reject, or modify the Report and
Recommendation, the Court is to make a de novo determination of those portions of the Report
and Recommendation to which an objection is made. See 28 U.S.C. § 636(b)(1); M.D. Pa. L.R.
72.3.
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2. The Court ADOPTS the Report and Recommendation (Doc. No. 18), of
Magistrate Judge Arbuckle;
3. Plaintiff’s request for remand or the award of benefits is DENIED;
4. The Commissioner’s decision denying Plaintiff’s applications for benefits
under Titles II and XVI of the Social Security Act is AFFIRMED;
5. The Clerk of Court is directed to enter judgment in favor of the Acting
Commissioner and against Plaintiff; and
6. The Clerk of Court is directed to CLOSE the above-captioned case.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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