Sechrist v. Colvin
MEMORANDUM OPINION (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 11/6/17. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEBRA J. SECHRIST,
NANCY A. BERRYHILL,1
Commissioner of the
Social Security Administration
(Magistrate Judge Carlson)
NOVEMBER 6, 2017
Plaintiff, Debra J. Sechrist, filed a complaint on July 19, 2016, naming as
Defendant Carolyn W. Colvin, then Acting Commissioner of the Social Security
Administration.2 Because Plaintiff Sechrist (“Plaintiff”) sought judicial review of
the Commissioner’s (“Commissioner”) final decision, this matter was referred to
Magistrate Judge Martin C. Carlson for the preparation and recommended
disposition under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure
The Complaint (ECF No. 1) correctly named Carolyn W. Colvin as Defendant, as she was
the Acting Commissioner of the Social Security Administration at the time it was filed. As of
January 23, 2017, Nancy A. Berryhill is the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill shall be substituted for
Carolyn W. Colvin as Defendant in this matter.
As noted in Footnote 1, Nancy A. Berryhill shall replace Carolyn W. Colvin as Defendant in
For the reasons that follow, Magistrate Judge Carlson’s Report and
Recommendation is adopted in full, and final judgment is entered against Plaintiff.
Magistrate Judge Carlson’s comprehensive disposition of May 17, 2017,3
recommended that the Commissioner’s decision be affirmed, and that Plaintiff’s
request for benefits under Title II be denied.4 Because I write for the parties, I will
conserve judicial resources, not rehash Magistrate Judge Carlson’s Report and
Recommendation, and will only address Plaintiff’s objections.
a. Standard of Review
When considering a social security appeal, the Court has plenary review of
all legal issues decided by the Commissioner.5 However, my review of the
Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is to determine
whether those findings are supported by “substantial evidence.”6 The factual
findings of the Commissioner, “if supported by substantial evidence, shall be
conclusive. . . .”7 “Substantial evidence does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might
See ECF No. 15.
Id. at 21.
See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Johnson v. Comm’r of
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008).
Poulos, 474 F.3d at 91.
42 U.S.C. § 405(g).
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accept as adequate to support a conclusion.”8 Substantial evidence has been
described as more than a mere scintilla of evidence but less than a preponderance.9
“It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”10 The United States Court of Appeals for the Third Circuit
[O]ur 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
[Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really
constitutes not evidence but mere conclusion.11
Therefore, a court reviewing the Commissioner’s decision must scrutinize the
record as a whole.12
b. Objections to a Report and Recommendation
Upon designation, a magistrate judge may “conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact
Johnson, 529 F.3d at 200 (quoting Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999))
(internal quotations and citations omitted).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900,
901 (3d Cir. 1995)) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Kent v. Schweiker, 710 F.2d 110,
114 (3d Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986)).
Id. (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
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and recommendations.”13 Once filed, this Report and Recommendation is
disseminated to the parties in the case who then have the opportunity to file written
objections.14 When such objections are filed timely, the District Court must
conduct a de novo review of those portions of the report to which objections are
made.15 Although the standard of review for objections is de novo, the extent of
review lies within the discretion of the District Court, and the Court may otherwise
rely on the recommendations of the magistrate judge to the extent it deems
For portions of the Report and Recommendation to which no objection is
made, the Court should, as a matter of good practice, “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.”17
Regardless of whether timely objections are made by a party, the District Court
may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.18
28 U.S.C. § 636(b)(1)(B).
28 U.S.C. § 636(b)(1).
28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011)
Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2011) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
Fed. R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F.Supp.2d 465, 469 (M.D. Pa. 2010) (citing Henderson v. Carlson, 812
F.2d 874, 878 (3d Cir. 1987) (explaining that judges should give some review to every
Report and Recommendation)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.
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Plaintiff’s primary objection to Magistrate Judge Carlson’s Report and
Recommendation pertains to the Administrative Law Judge’s (“ALJ”) assessment
of Plaintiff’s permitted exposure to pulmonary irritants.19 Specifically, Plaintiff
contends that the ALJ erred by giving the medical evaluations of Rosemary
Wiegand, M.D., Plaintiff’s treating physician, less weight than the medical opinion
of Catherine Smith, M.D., a non-examining State agency reviewing physician.20
Plaintiff also argues that the ALJ did not properly consider Dr. Wiegand’s
handwritten restriction: “No exposure to fumes, exhaust, strong perfumes, [or]
Having considered the Plaintiff’s arguments, in conjunction with Magistrate
Judge Carlson’s Report and Recommendation and the Commissioner’s responding
Brief, I find Plaintiff’s objections without merit. The ALJ based her decision on
substantial evidence, and I accordingly adopt in full Magistrate Judge Carlson’s
Report and Recommendation. My reasoning for this conclusion follows.
a. The ALJ did not commit reversible error in according greater
weight to Dr. Smith than Dr. Wiegand.
Plaintiff objects to the ALJ according less weight to her treating physician,
Dr. Rosemary Wiegand, than to non-examining State agency physician, Dr.
ECF No. 19, at 2.
ECF No. 17, at 2.
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Catherine Smith.22 The ALJ accorded more weight to Dr. Smith’s medical opinion
evidence than Dr. Wiegand’s “because it [was] consistent with the clinical
evidence and the [Plaintiff’s] treatment history.”23
When, as here, “a conflict in the [medical] evidence exists, the ALJ may
choose whom to credit but cannot reject evidence for no reason or for the wrong
reason.”24 “The ALJ must consider all the evidence and give some reason for
discounting the evidence she rejects.”25 While Dr. Wiegand, Plaintiff’s treating
physician, “should be accorded great weight,” an ALJ “may afford a treating
physician’s opinion more or less weight depending upon the extent to which
supporting explanations are provided.”26
Reviewing the treatment records for the relative period, the ALJ found that
Plaintiff was generally stable “with some episodes of treatment of exacerbation.”27
The ALJ also found that the treatment records indicated Plaintiff’s increased
asthma symptoms correlated with seasonal allergies, but that her “lungs were clear
to auscultation and her respiratory effort was normal.”28 During another instance of
asthma symptom exacerbation, the treatment records show Plaintiff was given a
steroid taper, but then received “no significant follow up treatment” and that she
ECF No. 10-2, at 20.
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999) (internal quotation marks omitted).
ECF No. 10-2, at 19.
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only needed her rescue inhaler “one to two times a week.”29 While Plaintiff later
experienced an “upper respiratory infection/sinusitis symptoms associated with her
asthma,” she was treated with an “anti-biotic and steroid medication.”30 After
being given this medication, the treatment records indicate that Plaintiff was
neither hospitalized nor received “significant follow-up treatment.”31
The ALJ noted that Plaintiff was hospitalized on May 13, 2014, for
exacerbated asthma symptoms.32 The treatment records, however, show Plaintiff’s
conditions improved once she “was given medication and nebulizer treatments.”33
The hospital discharged Plaintiff because her lungs were clear as to auscultation.34
While Plaintiff saw her primary doctor for treatment of cold symptoms a few
months later, the physical examination showed “normal respiratory effort and
auscultation.”35 The ALJ noted all of these treatment records before assigning
weight to the various medical opinions.
Basing her decision on the clinical evidence together with the treatment
history, the ALJ accorded greater weight to the medical opinion of Dr. Smith than
to that of Dr. Wiegand. Specifically, the ALJ noted that Dr. Wiegand opined
Plaintiff “should have no exposure to fumes, exhaust, strong perfumes, or
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solvents.”36 The ALJ found this opinion to be inconsistent with the clinical
evidence and treatment history, which only indicated Plaintiff had an increase in
respiratory issues “during times of bronchitis or asthma exacerbation.”37 The ALJ
found that these increased times of respiratory issues “occurred infrequently within
the relative time period and only once required hospital treatment.”38 Moreover,
the ALJ noted that Dr. Wiegand is Plaintiff’s primary care doctor, but is not a
pulmonary specialist.39 Despite according little weight to Dr. Wiegand’s medical
opinion, the ALJ acknowledged that Plaintiff does require “some level of
limitation regarding her exposure to things that would exacerbate her asthma.”40
In contrast, the ALJ accorded moderate weight to Dr. Smith’s medical
opinion in that it was “consistent with the clinical evidence and the [Plaintiff’s]
treatment history.” In particular, Dr. Smith’s medical opinion advised Plaintiff to
avoid concentrated exposure to “fumes, odors, dusts, gases, poor ventilation, etc.”41
In accordance with Dr. Smith’s opinion evidence, the ALJ found that the medical
evidence supports Plaintiff having only a moderate limitation to pulmonary
ECF No. 10-2, at 20.
ECF No. 10-3, Exhibit 1A, at 7.
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irritants in a work setting, not an absolute requirement to avoid all irritants as
In distinguishing the weight she accorded to the relevant medical opinions,
the ALJ properly explained her reasons for doing so.43 While Dr. Smith was a
non-examining physician, the ALJ concluded Dr. Smith’s medical opinion was
most consistent with both the clinical evidence and treatment history.44 As such,
the ALJ properly based her finding that Plaintiff “must avoid moderate exposure to
. . . fumes, odors, dusts, gases and poor ventilation” on substantial evidence;45 as
the ALJ reasoned, the relevant evidence does not support Dr. Wiegand’s absolute
restriction from pulmonary irritants. I conclude that the ALJ properly based her
decision on substantial evidence.
For the foregoing reasons, I find that the ALJ’s decision to deny Plaintiff
social security benefits was supported by substantial evidence. Accordingly, I find
Id. at 21. Plaintiff mistakenly contends that Dr. Wiegand’s medical opinion prohibits any
exposure to perfumes. Dr. Wiegand’s handwritten restrictions, however, only limit Plaintiff
from “strong perfumes.” Such a description does not categorically limit Plaintiff from being
exposed to “light” or “subtle” smelling perfumes. I acknowledge that Plaintiff’s asthma
restricts her in some capacity, but “strong perfumes” presumably would negatively affect
much of the population and cause pulmonary irritation – an irritation we all endure in such an
See Plummer, 186 F.3d at 429.
See Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (stating that even if the Court would
have “decided the factual inquiry differently,” it is not the Court’s prerogative to set aside the
ALJ’s decision so long as it is based on substantial evidence).
ECF No. 10-2, at 18.
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no reason to disturb Magistrate Judge Carlson’s May 17, 2017 Report and
Recommendation, which shall be adopted in full.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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