Confer v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For all the reasons referenced in this Memorandum, the Court concludes that substantial evidence supports the Agencys decision. Thus, Plaintiffs appeal from the final decision of the Agency will be denied. An Order consistent with this conclusion will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 3/7/18. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALLEN D. CONFER,
:CIVIL ACTION NO. 3:17-CV-00597
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
We consider here Plaintiff’s appeal from an adverse decision
of the Social Security Administration (“SSA” or “Agency”) regarding
his application for Disability Insurance Benefits (“DIB”).
Plaintiff’s application was initially denied at the administrative
level whereupon he requested a hearing before an Administrative Law
Judge (“ALJ”). He received that hearing May 19, 2015. The ALJ
denied Plaintiff’s application by written decision dated August 22,
2015. (Doc. 12-2). The Appeals Counsel denied Plaintiff’s request
for review by letter dated February 8, 2017. Plaintiff then
appealed to this Court by Complaint (Doc. 1) dated April 5, 2017.
This Court has jurisdiction over this matter pursuant to 42 U.S.C.
Testimony before the ALJ.
A hearing was conducted before ALJ Edward Brady in Wilkes-
Barre, Pennsylvania on May 19, 2015. Testimony was taken from
Plaintiff and from Michele Giorgio, a vocational expert (“VE”).
Also present was Charles Rosamilia, Plaintiff’s attorney. The
testimony may be summarized as follows.
Plaintiff testified that he lived in the area of Lock Haven,
Pennsylvania but that he was essentially homeless at the time of
the hearing. He had been homeless since June of 2014. Plaintiff
last worked in 2013 and that employment ended when his employer
went bankrupt. (R. 53-54). He has not worked since June of 2013 and
has sustained himself on unemployment compensation benefits since
then. These benefits ran out in January of 2014. (R. 55).
Plaintiff has a heart condition and had an aortic valve
replacement in 2011. He stated that he has had difficulty working
since then and is always stiff and sore. He denied chest pain but
stated that he is always short of breath. He has been diagnosed
with asthma and has quit smoking. He breathes better when in cool
temperatures. He can walk one half mile to one mile but that
exacerbates his shortness of breath. He has a driver’s license but
does not own a car. He has difficulty with stairs due to stiffness
in his back and pain in his legs. The pain in his legs is sporadic
and worsens with changes in the weather. (R. 56-57). He has no
difficulty sitting for any length of time nor does he have
difficulty in standing as long as he can move around. He estimates
that he can lift and carry about ten pounds. (R. 58).
With respect to his mental health, Plaintiff stated that he
was treating with a Doctor Karmini (sic). He has been seeing Dr.
Karmini for more than a year. She has been prescribing medications
for him to alleviate depression and suicidal thoughts, to help him
tolerate being around people, and to stop his mind from racing. His
depression is constant. He spends a lot of time by himself. He had
suicidal thoughts when he was younger but the medicines that Dr.
Karmini has prescribed have caused these things to stop. He
essentially interacts only with his family. He gets along well with
his family members but does argue with some of them occasionally.
He has no significant other but does have two daughters from a
previous relationship. He does not see his daughters often because
they live at a distance and his homelessness complicates his
efforts to see them. (R. 58-63).
Plaintiff testified further that he is anxious about his
financial situation and his lack of a fixed place to live. He is
also anxious about being in a group of people and does not know
whether he could deal with working in a group setting. He also
testified to being somewhat forgetful, particularly with regard to
his short-term memory. He does remember to take his medications.
Upon questioning by his attorney, Plaintiff indicated that he
sleeps twelve to thirteen hours from six o’clock in the evening to
six o’clock or seven o’clock the next morning. He has not driven at
all for two years because he makes wrong decisions on the road. He
has been pulled over by the police on suspicion of drunk driving
because he was swerving. This swerving was actually caused by a
reaction to his medications. He formerly road a bike and fished but
no longer has any hobbies. One of the medications he takes makes it
difficult for him to stop moving his hands. His energy level is
low. He basically sits most of the day and gets up and walks as
needed to help control his pain. He neither reads nor watches
television. He eats only one meal each day and stated that he is
five feet seven inches tall and weighs two hundred and twenty
pounds. He is not trying to lose weight but has lost ten pounds
since the last time he saw his doctor. In response to a question
regarding his self-esteem, Plaintiff replied: “I just don’t know
what to do with myself sometimes. …the last couple of years it’s
like downhill.” (R. 67-70).
VE Michele Giorgio also testified. She stated that Plaintiff
was a high school graduate who, at forty-nine years of age, would
be considered a “younger individual”. His past relevant work as a
“bin checker/tagger” was a “medium, unskilled” variety. His prior
work at a Wal-Mart Super Center involved stocking shelves and
unloading trucks and was characterized as “heavy, unskilled”. The
ALJ asked Ms. Giorgio a hypothetical question in which she was to
assume a person the same age as Plaintiff with the same educational
and vocational background. She was also to assume that the
hypothetical person could perform a limited range of light work
such that he could only occasionally bend, balance, stoop, kneel,
crawl, crouch, and climb and that he would be limited to simple and
repetitive unskilled work. Finally she was to assume that the
hypothetical person could not interact with the public and only
occasionally could interact with coworkers or supervisors. Based on
these assumptions, the VE concluded that the hypothetical person
could not perform any of Plaintiff’s past relevant work but that
the hypothetical person could perform jobs such as “mail clerk” and
“hand packer”. She stated that these jobs exist in significant
numbers in the Commonwealth.
When the ALJ modified the hypothetical question such that the
hypothetical person would have the same limitations previously
discussed but also be confined to sedentary jobs the VE stated that
work within those criteria such as “sorter”, “sampler”, and
“inspector” could be performed by the hypothetical person. When the
ALJ added an additional assumption that the hypothetical person
would be off task up to 33% of each workday or miss at least one
day of work each week the VE responded that no work would be
available to such a person. The VE stated further that her
testimony was consistent with the Dictionary of Occupational
Titles. (R. 67-74).
III. Medical Evidence
A. Dr. Paul Simpson.
Dr. Simpson was Plaintiff’s treating physician from at least May of 2012
through May of 2013. His progress notes regarding his treatment of
Plaintiff document ten physical examinations interspersed regularly
during that time frame. (R. 410-457). These progress notes are very
similar. Each notes that Plaintiff denies:
(1)anxiety, depression, hallucinations, confusion, difficulty
sleeping, suicidal ideation, excessive anger, withdrawal,
hyperactivity, inattentiveness, or behavioral problems; (2)
muscular weakness, lack of coordination, muscle cramps, neck pain,
back pain, shoulder pain, hip pain, knee pain, or foot pain; and
(3) difficulty concentrating or problems related to memory. On each
of these visits Plaintiff appeared as “well-nourished, alert, in no
acute distress.” Dr. Simpson’s progress notes of Plaintiff’s
examinations dated March 5, 2013 and May 7, 2013 also document that
Plaintiff was grossly oriented to time and place, had normal
ability to communicate, had both immediate and long-term recall intact, had normal concentration and attention span, had fund of
knowledge within normal limits, exhibited normal mood, appropriate
affect, logical thought process and an awareness of current events.
Dr. Simpson executed a Physical Capacities Evaluation Form regarding
Plaintiff on April 8, 2015 (R. 510). Dr. Simpson opined that
Plaintiff could sit for up to five hours in an eight hour work day
but that his ability to stand or walk would be less than one hour.
Plaintiff was deemed: capable of lifting and carrying up to ten
pounds occasionally; incapable of simple grasping with his hands,
or pushing and pulling arm controls; and incapable of fine
manipulation. Dr. Simpson indicated that Plaintiff could use both
feet to operate pedals and foot controls but that he could never
bend, squat, crawl, climb, or reach and that he could not be
exposed to unprotected heights, moving machinery, changes in
temperature, or exposure to dust and fumes.
B. Punyabrata Roy.
Dr. Roy was Plaintiff’s treating psychiatrist from at least March of 2012
through August of 2013. Dr. Roy’s progress note from six
consultations in that time frame uniformly assessed Plaintiff to be
afflicted by impulse control disorder, anxiety disorder, and
depressive disorder. Dr. Roy’s notes also indicate that Plaintiff
consistently denied homicidal or suicidal ideas and hallucinations.
His insight and judgment was generally described as “fair”. His
mood was described variously as “appropriate” and “calm and
cooperative”. There is the repeated assessment that Plaintiff “is
not psychotic at this time”.
Dr. Roy did not provide a written opinion as to the effect
diagnoses would have on his ability to work. He did, however,
consistently assess Plaintiff’s Global Assessment of Functioning
scores to be between fifty-seven and sixty. These scores generally
indicate moderate symptomology.1
While the most recent edition of the Diagnostic Statistical Manual of Mental Disorders no
longer assesses symptom severity, diagnostic severity, and disability in terms of Global Assessment
of Functions scores (GAF’s), at the time of Plaintiff’s assessments the GAF scale was used to report
a clinician’s judgment of the patient’s overall level of functioning on a scale of one to one hundred.
All of Plaintiff’s recorded GAF’s that are documented in the record were between fifty-two and
sixty. A GAF score of twenty-one to thirty indicates that behavior is considerably influenced by
delusions or hallucinations or serious impairment in communication or judgment. A GAF score of
thirty-one to forty indicates some impairment in reality testing or communication and that speech is
at times illogical, obscure or irrelevant and may indicate major impairment in several areas such as
work or school, family relations, judgment, thinking, or mood. A GAF score of forty-one to fifty
indicates serious symptoms such as suicidal ideation, severe obsessional rituals, frequent shop lifting
or any impairment in social occupation or school functioning. A GAF score of fifty-one to sixty, like
those exhibited by the Plaintiff in this case, indicates “moderate symptoms such as flat affect,
occasional panic attacks, or moderate difficulty of social, occupation, or school functioning.” See
Diagnostic Statistical Manual of Mental Disorders 34 (4th ed., text Rev., 2000).
C. Dr. Sreedevi Komarneni.
Dr. Komarneni completed a Medical Source Statement of Ability to Do WorkRelated Activities that addressed Plaintiff’s mental status May 11,
2015. (R. 511-512). Dr. Komarneni indicated that Plaintiff: had
moderate impairment in understanding, remembering, and carrying out
simple instructions; had marked impairment in his ability to make
simple work-related decisions; and severe impairment in his ability
to understand and carry out detailed instructions or to make
complex work-related decisions.2
D. David Smock, Ph.D.
Dr. Smock saw Plaintiff once in his capacity as a consulting psychiatrist for
the Bureau of Disability Determination. This consult took place on
January 4, 2014. Dr. Smock’s disability evaluation (R. 501-509)
It is felt that he would have some difficulty
sustaining attention to work. There were
times when items had to be repeated to him
because he did not get the stimulus item
clear the first time. This is clearly what
Plaintiff’s counsel asserts that Dr. Komarneni was a treating Psychiatrist. (Doc. 16 at 6).
However, the Court has found nothing in the record to substantiate Dr. Komarneni’s characterization
as that of a treating psychiatrist.
happened in the job setting. He would have
significant problems following and
understanding directions and making
appropriate decisions in the job setting,
especially if material starts to get
complicated. While no formal testing was
completed, it is likely that his IQ falls at
least in the borderline intellectual range,
perhaps lower. He would have problems doing
simple tasks independently and would be
overwhelmed by complex tasks. He would have
problems learning new tasks. He would have
fairly sufficient difficulty relating
effectively to peers, supervisors, and
customers. His arithmetic skills are quite
limited, but it is felt that he could
basically manage his own funds.
Dr. Smock diagnosed depressive disorder and expressed the
possibility of borderline intellectual functioning and mild mental
retardation. (R. 504).
Dr. Smock also assessed Plaintiff as demonstrating: moderate
impairment in understanding, remembering, and carrying out simple
instructions; marked impairment in his ability to make simple workrelated decisions; and severe impairment in his ability to
understand, carry out, or make judgments regarding complex, workrelated instructions. With respect to Plaintiff’s social
functioning, Dr. Smock stated that Plaintiff had marked impairment
in his ability to interact appropriately with the public, coworkers or supervisors.
E. Dr. Paul Perch.
Paul Perch, Ed.D., a non-examining consulting phycologist, completed a Mental
Residual Functional Capacity Assessment of Plaintiff on January 15,
2014 after reviewing progress notes and opinions from Drs. Smock,
Roy, and Simpson. (R. 85-88). Dr. Perch found that Plaintiff had no
significant limitations in: the ability to remember locations and
work procedures; the ability to understand and remember simple
instructions; the ability to maintain attention and construction
for extended periods; the ability to comply with a work schedule
and maintain regular attendance; the ability to sustain an ordinary
routine without special supervision; the ability to work in
proximity to others without distraction; and the ability to
interact appropriately with the general public. Dr. Perch also
found that Plaintiff had moderate limitations in: the ability to
accept instruction and respond appropriately to criticism from
supervisors; and the ability to respond appropriately to changes in
the work place. Finally, Dr. Perch found that Plaintiff had marked
limitations in the ability to remember and carry out detailed
Dr. Perch opined: “the claimant can sustain an ordinary routine and adapt to
routine changes without special supervision. The claimant would be
able to make simple decisions. Review of the medical evidence
reveals that the claimant retains the abilities to manage the
mental demands of many types of jobs not requiring complicated
tasks. (R. 87). Dr. Perch also indicated that Dr. Smock’s opinion
was “an overestimate of the severity of the individual’s (the
claimant’s) restrictions/limitations and based only on a snapshot
of the individual’s functioning.” R. at 88). Dr. Perch concluded
that Plaintiff could perform his past relevant work as a
F. Dr. Louis Tedesco, M.D.
Dr. Tedesco completed a Physical Residual Functional Capacity Assessment of
Plaintiff on December 6, 2013 after reviewing Plaintiff’s medical
records. Dr. Tedesco found that Plaintiff could: occasionally lift
and carry up to twenty pounds; frequently lift and carry up to ten
pounds; stand and/or walk up to six hours in an eight hour workday;
sit for up to six hours in an eight hour workday; and push and pull
without limitation except for those stated for lifting and
carrying. Dr. Tedesco found also that Plaintiff had no postural
limitations, no manipulative limitations, no visual limitations, no
communicative limitations, and no environmental limitations. (R.
The ALJ’s decision (Doc. 12-2 at 9-25) was unfavorable to the Plaintiff. It
includes the following findings of fact and conclusions of law:
1. The claimant meets the insured status
requirements of the Social Security Act
for December 31, 2018.
2. The Claimant has not engaged in
substantial gainful activity since June
10, 2013, the alleged unset date.
3. The Claimant has the following severe
impairments: coronary artery disease,
status-post valve replacement, a bipolar
disorder, an impulse control disorder, and
an anxiety disorder.
4. The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one of
the impairments in 20 CFR Part 404, Sub
Part P, Appendix 1 (20 CFR 404. 1520(d),
404.1525 and 404.1526).
5. After careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional
capacity to perform light work as defined
in 20 CFR 404.1567 (b) except the
claimant: could occasionally bend,
balance, stoop, kneel, crouch, crawl, and
climb at jobs which are simple, routine,
and repetitive work, generally described
as unskilled; could have no interaction
with the public and could have occasional
contact with co-workers and supervisors.
6. The claimant is unable to perform any past
7. The claimant was born on August 9, 1965
and was forty-seven years old, which is
defined as a younger individual age 18-49,
on the alleged disability onset date.
8. The claimant has at least high school
education and is able to communicate in
9. Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports a
finding that the claimant is “not
disabled,” whether or not the claimant has
transferrable job skills.
10. Considering the claimant’s age, education,
work experience, and residual functional
capacity, there are jobs that exist in
significant numbers in the national
economy that the claimant can perform.
ability as defined in 1t .e
Social Security Act, from June 10 2013,
through the date of this decision.
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 ''
ADisability@ is defined as the Ainability 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 than 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).
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
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
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 22).
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 Amore than a mere scintilla”.
It means “such relevant
evidence as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make clear
that determination of the existence vel non of
substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidenceB-particularly
certain types of evidence (e.g., that offered
by treating physicians)B-or if it really
constitutes not evidence but mere conclusion.
See Cotter, 642 F.2d at 706 (ASubstantial
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
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary
to analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative exhibits,
Ato 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
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: ASince 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
Cotter, 642 F.2d at 706-07.
However, the ALJ
need not undertake an exhaustive discussion of all the evidence.
See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
is no requirement that the ALJ discuss in her opinion every tidbit
of evidence included in the record.@
130, 133 (3d Cir. 2004).
Hur v. Barnhart, 94 F. App=x
A[W]here [a reviewing court] can
determine that there is substantial evidence supporting the
Commissioner=s decision, . . .
the Cotter doctrine is not
Hernandez v. Commissioner of Social Security, 89
Fed. Appx. 771, 774 (3d Cir. 2004) (not precedential).
A reviewing court may not set aside the Commissioner=s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
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) (A[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .@).
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
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) (A[O]ur primary concern has always been the
ability to conduct meaningful judicial review.@). Finally, 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).
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.
Social Security proceedings are not strictly
adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.
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).
the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.
Further, the court in Dobrowolsky noted Athe 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
B. Plaintiff’s Allegations of Error.
1. Whether the ALJ failed to properly account for Plaintiff’s
impulse control disorder in determining his RFC?
The ALJ’s RFC determination provided, among other things, that
the Plaintiff would be limited to jobs requiring only simple,
routine, repetitive, and unskilled work and would be further
limited to jobs where he would have no exposure to the public and
only limited exposure to co-workers and supervisors. (R. at 17).
Plaintiff asserts that the RFC determination makes inadequate
provision for his impulse control disorder but cites no authority
to support the proposition that the ALJ’s RFC determination did not
adequately consider the limiting effects of that disorder.
Significantly, Plaintiff fails to point to any specific limitation
documented in the record that relates to his impulse control
disorder and renders him unemployable. As Defendant observes, a
diagnosis that a condition exists does not establish that it is
disabling. 20 CFR § 404.1521 (See Doc. 17 at 10).
The Court’s review of the record discloses that, while the
diagnoses of impulse control disorder is consistently reported, the
progress notes of two treating physicians, Drs. Simpson and Roy,
are devoid of any mention of impairments flowing directly from the
condition. As indicated in the summary of the medical evidence
(Section III, ante), both treating physicians consistently
described Plaintiff as fully oriented, communicative, normal in
terms of concentration and attention span, exhibiting normal mood
and appropriate affect and displaying logical thought process. Dr.
Roy repeatedly assessed Plaintiff at a GAF of 57 to 59, scores
indicating only moderate impairment in function. The combined
history provided by Drs. Simpson and Roy simply does not establish
the Plaintiff’s impulse control disorder required additional
limitations over and above those provided (limitation to simple,
repetitive tasks, limited exposure to co-workers and supervisors,
and no exposure to the general public)in the ALJ’s RFC
determination. The totality of the progress notes provided by Drs.
Simpson and Roy afforded the ALJ a reasonable basis for the
conclusion he drew. Accordingly, Plaintiff’s allegation of error on
this point is rejected.
2. Whether the ALJ inappropriately evaluated the medical
evidence regarding Plaintiff’s physical limitations?
With respect to his physical limitations, Plaintiff contends
that the ALJ improperly preferred the physical capacities
evaluation of a consulting physician over that of his primary care
doctor, Dr. Simpson. Dr. Simpson had opined that Plaintiff had
lifting, carrying, standing, and sitting limitations that were more
restrictive than those identified in the ALJ’s RFC determination.
Plaintiff asserts: “these findings were made without any medical
documentation to support the more extensive physical capacities
findings of the Administrative Law Judge.” (Doc. 16 at 7). This may
be so, but it is no avail to Plaintiff because the documentation he
relies upon (the physical capacities evaluation performed by Dr.
Simpson found in the Record at 510) is starkly inconsistent with
the progress notes he created during his extended treatment of
Plaintiff during the relevant time period. Over the course of ten
examinations leading up to Plaintiff’s alleged onset of disability
date, Dr. Simpson consistently noted that Plaintiff was free of
neck pain, back pain, shoulder pain, hip pain, knee pain, or foot
pain; displayed no muscular weakness; experienced no muscle cramps,
and displayed no lack of coordination. Significantly, in the last
two progress notes Dr. Simpson entered on March 5, 2013 and May 7,
2013 (R. at 449 and 456 respectively), he recorded Plaintiff’s
strength as normal in all extremities with normal muscle tone and
normal muscle bulk, and no atrophy. These findings are simply
inconsistent with Dr. Simpson’s physical capacities evaluation (R.
at 510) finding that Plaintiff can only occasionally lift or carry
up to ten pounds. Given the apparent inconsistency between Dr.
Simpson’s progress notes and his physical capacities evaluation the
ALJ may not be faulted for his unwillingness to rely upon that
On December 6, 2013 Dr. Louis Tedesco completed the State
Agency Physical Assessment of claimant. Dr. Tedesco had available
to him all Plaintiff’s medical records up to December of 2013
including Dr. Simpson’s progress notes regarding his treatment of
the claimant between May 3, 2012 and May 7, 2013. Dr. Tedesco’s
review of Plaintiff’s medical history persuaded him the Plaintiff
had the physical capacity to: occasionally lift up to twenty pounds
and frequently lift up to ten pounds; stand or walk six hours in an
eight hour work day; sit six or eight hours in an eight hour work
day; operate hand and foot controls; and work without postural,
manipulative, visual, communicative, or environmental limitations.
The ALJ gave substantial weight to Dr. Tedesco’s assessment because
“it is largely consistent with the more moderate symptomology
experienced by the claimant.” (R. at 21). The ALJ added: “the
claimant explained in his hearing testimony that he has no sitting
or standing limitations. He added that he is able to walk up to one
mile without issue. Admittedly, the claimant’s submissions show
that he does experience shortness of breath, to an extent.
Nevertheless, this limitation does not preclude him from walking a
considerable distance…”. (See R. at 56-59).
Having reviewed the ALJ’s Decision, all pertinent medical
evidence in the file, and the parties’ briefs, the Court concludes
that Plaintiff’s argument regarding the ALJ’s evaluation of the
medical evidence must fail. As noted above, the totality of Dr.
Simpson’s treatment notes regarding Plaintiff’s physical
impairments are so benign as to be unsupportive of his Physical
Capacities Evaluation dated April 8, 2015. In fact, Plaintiff’s own
testimony at his hearing approximately seven weeks later is equally
inconsistent with Dr. Simpson’s assessment. (R. at 56-58). Under
these circumstances, the ALJ was well within his discretion in
elevating the opinion of Dr. Tedesco.
3. Whether the ALJ improperly evaluated the medical evidence
regarding the Plaintiff’s cognitive/emotional impairments?
Plaintiff asserts that the ALJ improperly gave greater weight
to the opinion of a consulting psychologist, Paul Perch, than to
those opinions provided by an evaluating psychologist, David Smock,
and a medical doctor, Sreedevi Komarneni. (Doc. 16 at 5-10).
Plaintiff contends further that “20 C.F.R. § 404.1527(c)(2)
provides that, if a treating source opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in the
case record the ALJ must ‘give it controlling weight.’” (Id. at
10). This is both a correct statement of the law and one that is
unhelpful to Plaintiff because neither the opinion of Psychologist
Smock nor that of Dr. Komarneni can be viewed as “well supported by
medically acceptable clinical and laboratory diagnostic techniques
and … not inconsistent with other substantial evidence in the
Dr. Smock, a one-time evaluating psychologist, provided a
relatively dire picture of Plaintiff’s intellectual and emotional
capacities after reviewing the treatment records of Doctors Simpson
and Roy (See pages 6-8, ante). Both Doctors Simpson and Roy noted
repeatedly that Plaintiff displayed no homicidal or suicidal
ideation, displayed normal affect and mood, presented as oriented
to time and place, displayed normal thought process and thought
content, and did not complain of any difficulty with concentration
or memory. In short, the progress notes of these treating
physicians, each of whom saw Plaintiff on numerous occasions, were
consistently benign as to Plaintiff’s cognitive/emotional
difficulties. As such, the opinion of Psychologist Smock was highly
“inconsistent with other substantial evidence in the case.” Thus,
under 20 C.F.R. § 404.1527 (c)(2), the ALJ was free to accord
greater weight to other substantial evidence of record, the
consistently more benign progress notes of Drs. Roy and Simpson
over a lengthy course of treatment. This is precisely why the ALJ
refused to accord significantly weight to Psychologist Smock’s
opinion. (R. at 19-20). The ALJ decision in this regard is
reasonable and will not be disturbed.
Dr. Komarneni also proffered a Medical Source Statement dated
May 11, 2015 that limited Plaintiff more severely than the RFC that
the ALJ assigned to him. Specifically, he indicated on a “check the
box” form that Plaintiff had marked difficulties: in his ability to
make simple work-related decisions; in his ability to interact with
the public, supervisors, or co-workers; and in his ability to
respond appropriately to usual work situations.4 The Court will
assume that Dr. Komarneni was a treating physician despite the fact
that the entire 617 page record in this case includes only the two
page Medical Source Statement of May 11, 2015 from her. However,
this document is completely unsupported by diagnostic or clinical
findings. While the Court would normally accord great weight, if
not controlling weight, to the opinion of a treating physician,
such is not the case where, as here, Dr. Komarneni’s opinion is
completely unsupported by diagnostic or clinical findings and is
also inconsistent with other medical evidence in the record (the
progress notes of treating physicians Simpson and Roy). If “the
opinion of a treating physician conflicts with that of a non-
Forms that merely require a physician to place checks in boxes are “weak evidence at best”
in the context of a disability analysis. Mason v. Shalala, supra, at 1065.
treating, non-examining physician, the ALJ may choose whom to
credit but cannot reject evidence for no reason or for the wrong
reason.” Jones v Sullivan, 954 F2d 125,129) 3rd Cir. 1991).
Here the ALJ gave little weight to Dr. Komarneni’s opinion “as
it does not include the requisite examination findings required to
support such extreme limitation. Moreover, the evidence of record,
including his mental status examination findings and the GAF scores
assigned to the claimant failed to corroborate such substantial
limitation.” (R. at 200). Having reviewed the record, especially
the numerous progress notes of Doctors Simpson and Roy, we must
conclude that the ALJ’s decision to accord little weight to Dr.
Komarneni’s Medical Source Statement was justified under the
As the Government contends in its brief (Doc. 17 at 22),
“State Agency Medical and Psychological Consultants are highly
qualified physicians and psychologists who are experts in the
evaluation of medical issues in disability claims.” SSR 96-6p. When
an ALJ elects to assign great weight to a State Agency
Psychological Consultant (Dr. Perch) and to subordinate contrary
opinion of the treating physician, he may appropriately do so when
the treating physician’s opinion is unsupported by treatment
records, inconsistent with the claimant’s clinical presentation
over a lengthy period, and contradicted by other evidence of
record. 20 C.F.R. § 404.1527(c)(2). Accordingly, the Court finds
that the ALJ’s decision to accord more significant weight to Dr.
Perch’s assessment constituted substantial evidence upon which the
ALJ was entitled to rely.
For all the reasons referenced in this Memorandum, the Court
concludes that substantial evidence supports the Agency’s decision.
Thus, Plaintiff’s appeal from the final decision of the Agency will
be denied. An Order consistent with this conclusion will be filed
BY THE COURT,
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: March 7, 2018
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