ROSE v. ASTRUE
Filing
13
MEMORANDUM AND OPINION. There is substantial evidence existing in the record to support the Commisioner's decision that Plaintiff is not disabled. The Plaintiff's Motion for Summary Judgment is Denied. The Defendant's Motion for Summary Judgment is Granted. The decision of the ALJ is confirmed. Signed by Judge Maurice B. Cohill on 7/8/2013. (cag)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MONICA ROSE
Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 12-82E
OPINION
I. Introduction
Pending before this Court is an appeal from the final decision of the Commissioner of
Social Security ("Commissioner" or "Defendant") denying the claims of Monica Rose
("Plaintiff' or "Claimant") for Supplemental Security Income ("SSI") under Title XVI of the
Social Security Act ("SSA"), 42 U.S.C. §§ 1381 et. seq. (2012).
Plaintiff argues that the
decision of the administrative law judge ("ALl") should be reversed and the Commissioner
directed to award Plaintiff benefits because the ALJ did not properly consider the medical
evidence of record, and therefore, Plaintiff is entitled to benefits. To the contrary, Defendant
argues that the decision of the ALJ fully evaluated the opinions of treating, examining, and
reviewing physicians as well as other relevant evidence and provided a rationale, supported by
substantial evidence for denying SSI benefits to the Claimant and, therefore, the ALl's decision
should be affirmed. The parties have filed cross motions for summary judgment pursuant to Rule
56(c) of the Federal Rules of Civil Procedure.
For the reasons stated below, the Court will deny the Plaintiffs Motion for Summary
Judgment and grant the Defendant's Motion for Summary Judgment and affirm the decision of
the ALl.
IL
Proceduralll~to~
On June 9, 2009, Plaintiff protectively filed an application for SSI alleging disability
beginning September 15, 2007 following her involvement in a motor vehicle accident. (R. at 15,
20, ECF No.7). The claim was initially denied on May 3, 2010.
(R. at 15). On July 9, 2010,
Claimant filed a written request for a hearing. Id. A hearing was held on April 14, 2011 where
Claimant appeared and testified.
Id.
Mitchell A. Schmidt, an impartial vocational expert
("VE"), also appeared during the hearing. Id. On May 24, 2011, the ALJ, Barbara Powell,
determined that Plaintiff was not disabled under Section 1614(a)(3)(A) of the Social Security
Act. (R. at 28). The ALJ concluded that "[b]ased on the testimony of the [VE], the undersigned
concludes that, considering the [C]laimant's age, education, work experience, and residual
functional capacity, the [C]laimant is capable of making a successful adjustment to other work
that exists in significant numbers in the national economy." (R. at 27). The Plaintiff requested a
review of the hearing decision by the Appeals Council on July 13, 2011. (R. at 11). The
Appeals Council denied Plaintiffs request for review and the Appeals Council upheld the ALl's
decision on January 24, 2012. (R. at 1).
III. Medical H~tory
a. Physical
On September 15,2007, Plaintiff was admitted to the hospital following an automobile
accident. (R. at 219). The admitting diagnosis was a concussion with loss of consciousness
greater than 5 minutes but less than 30 minutes; rib fractures; fractures of the transverse
2
processes of T6-T9; pulmonary contusion; and scalp laceration. Id. A CT Scan of the head on
admission showed extensive laceration to the left scalp. Id.
admission was unremarkable.
Id.
A CT Scan of the cervical
spine on
CT of the thorax on admission showed an area of
consolidation versus contusion in the right middle lung, and fracture of the left 9 th and 11 th
posterior ribs, as weB as fracture of the 6 th _9 th transverse processes on the left. Id.
While in the hospital Plaintiff was referred to Susan M. Evans, Ph.D. for a
neuropsychological assessment due to the concussion sustained from the automobile accident.
(See R. at 220). Dr. Evans reported that Plaintiff was alert and oriented X 4. (R. at 237). The
doctor noted confusion but said the Plaintiff was able to interact with her appropriately and there
was no confusion during the administration of the neuropsychological screen. Id. Plaintiff was
able to register and repeat back 4 unrelated words, sentences of varying mean length of
utterance, and 6 digits. (R. at 237-38). Confrontational naming was intact, both within broad
category and for details. She was able to perform mathematical calculations and spell the word
"world" backwards. (R. at 238). Dr. Evans reports that Plaintiff was demonstrating a moderate
disturbance in short-term memory.
Id.
Plaintiff was discharged from the hospital in stable
condition on September 18,2007. (R. at 220).
X-rays of the Plaintiffs left shoulder on October 1, 2007 revealed a density projected
lateral to the greater tuberosity of the proximal right humerus. (R. at 258).
The radiologist
determined the density to be a possible foreign body in the soft tissues overlying the right
shoulder. Id. On October 5, 2007, Brian Zimmerman, PA-C, a physician's assistant associated
with Orthopaedic & Sports Medicine of Erie, P.C. examined the Plaintiff for follow-up care. (R.
at 292). An examination of the right upper extremity showed a well-healed abrasion to the
lateral aspect of the right shoulder with no other obvious abnormalities. Id. There was increased
3
pain with forward flexion of the right upper extremity on right ann crossover test; rotator cuff
strength was equal bilaterally; internal rotation, external rotation, and abduction versus resistance
caused increased pain; distal neurovascular status was intact. Id.
On October 18, 2007 Plaintiff was seen at Corry memorial Hospital where a soft tissue
sonogram of the right hip revealed a possibly liquefied hematoma as post-traumatic residual. (r.
at 257).
On November 12, 2007, Carl Y. Seon, M.D. a physician associated with Orthopaedic &
Sports Medicine of Erie saw Plaintiff for complaints of right shoulder pain with overhead
activity and right hip discomfort. (R. at 291). A physical examination revealed that cervical
spine range of motion was symmetric, Plaintiff had full range of motion, forward flexion, and
internal and external rotation.
Id.
The examination also showed that the Plaintiff had 5/5
internal rotation and 5/5 external rotation strength. Id. A Speed's test and Hawkins sign was
equivocal.' Id. Dr. Seon stated the Plaintiff was neurovascularly intact. Id.
On April 10,2008 aCT of the brain was normal with and without contrast. (R. at 268).
On April 13, 2008 Plaintiff presented to the Emergency Room at Hamot Medical Center
for acute low back pain, headache, and nausea that followed the CT scan on April 10, 2008. (R.
at 281). A straight leg-raising test was nonnal, 2 and a neurologic evaluation revealed that motor
strength, flexion, extension, sensation and reflexes were entirely nonnal. Id. Diagnosis was
acute low back pain and urinary tract infection. (R. at 283).
Dr. Seon saw Plaintiff again on April 14, 2008 for right shoulder pain and right gluteal
swelling. (R. at 290). Examination again revealed no significant tenderness but that X-rays of
I A Speed's test is used to test for superior labral tears or bicipital tendonitis. (Oef. 's Sr. Supp. Summ. J. 6 n.3, ECF
No. 12, (citation omitted) (hereinafter ECF No. 12)). The Hawkins impingement sign involves pain produced by
forced internal rotation of the humerus in 90° of abduction. (ECF No. 12 at 6 n. 4 (citation omitted)).
2 A straight leg raising test is used to evaluate possible nerve root pressure, tension, or irritation of the sciatic nerve.
(ECF No. 12 at 6 n.5 (citation omitted)).
4
the right clavicle showed that it had probably gone to a fibrous type union.
Id. Dr. Seon
recommended physical therapy for swelling control and to return to the Orthopaedic practice in
four weeks. Id. Plaintiff did not perform either follow up tasks.
CR. at 299).
On January 13, 2009 Plaintiff saw Jason Edwards, PA-C, a physician'S assistant, for a
routine medical check-up. Id. Plaintiff reported that she still suffered from post-concussive
headaches but that her medication (Meloxicam) helped. Id.
On October 13, 2009, Dr. Seon performed surgery to remove glass from the right
shoulder, a mini open distal clavicle excision, and excision of chronic nonunion.
CR. at 360).
Plaintiff tolerated the procedure well and on October 22, 2009 Dr. Seon stated the incision
looked good and that Plaintiff was neurovascularly intact.
CR. at 398). On November 5, 2009
Dr. Seon stated that the incision had healed well and Plaintiff had full range of motion. Id.
On October 27, 2009, John C. Kalata, D.O., performed a consultative physical
examination.
CR. at 363-67). Dr. Kalata reports that Plaintiffs main complaints were headaches
and pain all over her body, specifically in the back, neck, hips and legs.
CR. at 363). A physical
examination revealed that she had some restricted motion of the neck, but was able to toe walk,
heel walk, and squat. Id. Her motor power was 515; there was no evidence of atrophy; a straight
leg-raising test was negative as it produced pain at 75 degrees. 3 Id.
On October 28, 2009 Plaintiff presented to the emergency room with complaints of
lightheadedness, dizziness, and forgetfulness.
CR. at 374). A CT scan of the head was negative.
Id. A functional assessment revealed that the Plaintiff was independent in activities of daily
living, she was able to move all extremities and had no limitations of range of motion.
CR.
at
379). A physical examination revealed that Plaintiffs neck was supple and there were no
3 A positive straight leg raising test requires reproduction of pain at an elevation of the leg at less than sixty degrees.
(ECF No. 12 at 6 n.S (citations omitted)).
S
respiratory or cardiovascular symptoms. (R. at 375). A neuro/psych examination revealed that
orientation, speech/cognition and mood/affect were all normal, and that motor strength and
sensation were normal as well. Id.
On December 17, 2009 physician's assistant Edwards noted Neurontin had really helped
Plaintiff's post-concussive type headaches.
CR. at 518).
On March 20, 2010 Plaintiff presented to the emergency room with complaints of right
hip pain. (R. at 422). A physical examination revealed normal joints, normal range of motion in
the joints, normal gait/weight bearing, and no evidence of vascular compromise. (R. at 423).
Sensation and motor strength were normal as well as data from a respiratory and cardiovascular
examination. Id. Claimant was admitted to the hospital and then transferred to Hamot Medical
Center for increased pain and sciatica. (R. at 444-59). X-rays of the right hip showed minimal
cystic change in the lateral superior acetabulum which could represent a minimal degenerative
subchondral cyst. (R. at 457). A March 21, 2010 x-ray of Plaintiff's lumbar spine was normal.
(R. at 458). On March 21, 2010 Nicholas Crosby, M.D. performed a consultative examination
with no significant findings except that Plaintiff stated she had been moving homes over the last
few weeks and had been doing continuous lifting and lots of yard work. (R. at 445). Plaintiff
had a moderately positive straight leg-raising test and knee extension test suggestive of sciatica.
(R. at 446). Dr. Crosby said it was "likely routine low back pain after exertion with possible
component of transient sciatica. Id. On March 22, 2013 Plaintiff was discharged home in stable
condition and with a straight cane. (R. at 449,484). On January 1,2011 Plaintiff returned to the
hospital with the same complaints. There were no significant findings upon examination. (R. at
553,557).
6
On April 28, 2010 Mary Ellen Wyszomierski, M.D. performed a physical residual
functional capacity assessment based upon her review of the record.
(R. at 490-6).
Dr.
Wyszomierski found that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds
frequently, stand and/or walk for a total of at least 2 hours in an 8-hour workday, sit for a total of
about 6 hours in an 8-hour workday, and that her ability to push and/or pull was unlimited except
as shown for lifting and/or carrying. (R. at 491). Dr. Wyszomierski also found that Plaintiff
could perform postural maneuvers such as climbing, balancing, stooping, kneeling, crouching,
and crawling occasionally. (R. at 492). No manipulative, visual, or communicative limitations
were found. (R. at 492-3). Dr. Wyszomierski did find that Plaintiff should avoid concentrated
exposure to extreme heat, wetness, vibration, and hazards such as machinery and heights but that
she had no limitations with respect to exposure to extreme cold, humidity, noise, and fumes,
odors, dusts, gases, and poor ventilation. (R. at 493). Dr. Wyszomierski also noted that Plaintiff
did not require an assistive device to ambulate, and that she was able to care for her children,
prepare light meals, do chores with breaks, drive and shop. (R. at 496). Finally, the doctor noted
that Plaintiff was not currently under the care of a specialist for headaches and that Plaintiffs
headaches did not seem to be of a disabling nature. Id.
h. Mental
Plaintiff has a history of mental health treatment from December 3, 2007 through June 23,
2009. (R. at 313-41). Plaintiff began treating with Asha Prabhu, M.D. at Corry Counseling
Services in 2007. (R. at 304-41). On April 22, 2008, Dr. Prabhu performed a psychiatric
evaluation where Plaintiff reported she was separated and living with her boyfriend and two
children. (R. at 316). Plaintiff reported she had been depressed for the past year but that she had
been receiving therapy, which was helping a lot. Id. Dr. Prabhu's mental status evaluation
7
revealed that the Plaintiff was alert and oriented and although her mood was depressed, her
speech was relevant and goal directed and she was not delusional. Plaintiff denied auditory or
visual hallucinations and suicidal or homicidal ideations. Plaintiff showed no assaultive or selfabusive behavior. Her memory, abstract thinking, and concentration were intact; her intelligence
was average based upon verbal skills; and her insight and judgment were intact.
CR. at 317). Dr.
Prabhu's diagnosis included major depressive disorder, recurrent; psychosocial stressors
moderate to severe; and a OAF of 55-60. 4 Id.
On July 23, 2008 Plaintiff returned to Dr. Prabhu and reported that she was doing well
although she had feelings of helplessness, hopelessness, and anhedonia.
CR. at 322). She denied
suicidal or homicidal ideations. Id. Dr. Prabhu adjusted the Claimant's medication and from
August 2008 through January 2009 Plaintiff felt medications were helping. In January of 2009
Claimant felt medication was not working and Nurse Eastman transitioned Plaintiff to a new
medication. (R. at 331,323). On May 11, 2009 Plaintiff reported feeling better but remained
depressed and was unable to handle stress and was having anxiety/panic.
CR. at 339). By June
2009 Plaintiff reported having extreme anxiety and panic due to a breakup with her boyfriend.
CR. at 341). Dr. Prabhu put Plaintiff on a new medication.
On March 9, 2010 Byron E. Hillin, Ph.D., saw Plaintiff for a consultative psychological
evaluation.
CR. at 412-20). Plaintiff said she could not work due to irritability, depression, and
problems with concentration and attention.
CR. at 412). She described herself as forgetful but
acknowledged her "memory difficulties" were mild.
CR. at 413). Plaintiff also reported she had
difficulty sustaining attention and concentration but she continued her activities of daily living
The GAF scale, devised by the American Psychiatric Association, ranges from zero to one hundred and is used by
a clinician to indicate an overall judgment of a person's psychological, social, and occupational functioning.
Diagnostic and Statistical Manual of Mental Disorders (DSM- IV-R). (ECF No. 12 at 13-14 n. 10). The greater the
number the higher the functioning of the individual.
4
8
such as cooking, cleaning, shopping and paying bills. CR. at 415). She reported socializing with
friends, family and her ex-husband. After his clinical interview, Dr. Hillin noted that Plaintiffs
cognitive abilities were intact across a broad range of domains including attention, concentration,
and short-term and long-term memory and that her processing speed was good. CR. at 417). Dr.
Hillin recommended continued treatment for Plaintiff for her chronic depression but that her
ability to understand, remember, and carry out instructions was not affected by her impairment.
CR. at 419).
Dr. Hillin found Plaintiff had moderate limitations in her ability to interact
appropriately with the public and co-workers, moderate limitations in her ability to respond
appropriately to work pressures in a usual work setting and respond appropriately to changes in a
routine work setting, and slight limitations in her ability to interact appropriately with
supervisors. Id. Dr. Hillin diagnosed Plaintiff with major depressive disorder, recurrent type;
anxiety disorder, not otherwise specified, mild; borderline personality features; and a current
GAF of65. CR. at 417).
On March 22, 2010 Ray M. Milke, Ph.D. performed a mental residual functional capacity
assessment based upon his review of the record. CR. at 460-3). Upon conclusion, Dr. Milke
determined that Plaintiff had the functional capacity to perform the basic mental demands of
competitive work on a sustained basis. CR. at 462). He stated that Plaintiff retained the ability to
perform repetitive work activities without constant supervision, and that there were no
restrictions in her abilities with respect to understanding, memory, and sustaining concentration
and persistence. Id.
Plaintiff saw Dr. Prabhu on regular intervals where she reported both positive days and
negative days but overall her mental state seemed to be well controlled by medication. CECF No.
12 at.l8-19). Dr. Prabhu completed a medical source statement on March 15, 2011 regarding
9
Plaintiff's mental health in relation to work-related activities. Dr. Prabhu reported that Plaintiff
has moderate limitations in her ability to understand and carry out instructions and make work
related decisions. (R. at. 526-40). He further indicated that Plaintiff has marked limitations in
her ability to interact appropriately with the public, supervisors, and co-workers; and to respond
to work pressures in a usual work setting. (R. at 539). However, Dr. Prabhu did not complete
several sections of the form, including the sections that pertained directly to the types of jobs
recommended by other evaluators.
CR. at 539-40).
Dr. Prabhu also did not provide any
medical/clinical findings to support his conclusions. Id.
IV. Summary of Testimony
On April 14, 2011, Plaintiff testified that she became disabled on September 15, 2007 due to
her car accident. CR. at 41). She further stated that she becomes stressed, and has panic and
anxiety attacks, depression, constant headaches and numbness on the left side of her head, and
neck and back problems. CR. at 42). She also claimed she uses a cane periodically due to
sciatica. (R. at 53). Plaintiff said she spent her days sleeping, listening to music, plays cards with
her boyfriend and sometimes her Mom comes to visit. (R. at 45). Plaintiff takes medications to
address her mental and physical conditions.
Also at the April 14, 2011 hearing, VE, Mitchell A. Schmidt, testified. The VE was asked
what types of jobs could a person perform given the restrictions that were noted in Plaintiff's
case by Dr. Wyszomierski, mentioned earlier, such as could lift and carry 20 pounds
occasionally and 10 pounds frequently, could walk in excess of two hours but less than 6 hours,
could stoop, crouch, crawl, squat, kneel, and balance but could not use ladders, scaffolds,
dangerous heights, or machinery and should avoid concentrated exposure to heat, cold, and
vibrations. (R. at 55). Also the VE was asked to take into consideration that the type of job
10
should have minimal contact with the general public due to anxiety and stress. (R. at 55-6). The
VE testified that Plaintiff would be suited to return to her work as an assembler of small parts
and a toy assembler, as well as other jobs that exist in significant numbers in the national
economy. (R. at 55-7, 60).
V. Standard of Review
The Congress of the United States provides for judicial review of the Commissioner's
denial of a claimant's benefits. See 42 U.S.c. § 405(g)(20 12).
This court must determine
whether or not there is substantial evidence which supports the findings of the Commissioner.
See id. "Substantial evidence is 'more than a mere scintiHa. It means such relevant evidence as a
reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)
(quoting Richardson v. Perales, 402 U.S. 389,401 (1971)). This deferential standard has been
referred to as "less than a preponderance of evidence but more than a scintilla."
Burns v.
Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). This standard, however, does not permit the court to
substitute its own conclusions for that of the fact-finder. See id.; Fargnoli v. Massonari, 247
F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge's findings "are
supported by substantial evidence" regardless of whether the court would have differently
decided the factual inquiry).
To determine whether a finding is supported by substantial
evidence, however, the district court must review the record as a whole. 5 U.S.C.
§ 706( 1)(F)(20 12).
VI. Discussion
Under SSA, the term "disability" is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
II
of not less than 12 months ... " 42 U.S.C. §§ 416(i)(l); 423(d)(l)(A); 20 C.F.R. § 404.1505
(2012). A person is unable to engage in substantial activity when he:
[H]e 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).
In determining whether a claimant is disabled under SSA, a five-step sequential
evaluation process must be applied. See 20 C.F.R. § 404.1520; McCrea v. Commissioner of
Social Security, 370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows:
At step one, the Commissioner must determine whether the claimant is engaged in substantial
gainful activity for the relevant time periods; if not, the process proceeds to step two. See 20
C.F.R. § 404. 1520(a)(4)(i). At step two, the Commissioner must determine whether the claimant
has a severe impairment. See id. § 404.1520(a)(4)(ii). If the Commissioner determines that the
claimant has a severe impairment, he must then determine whether that impairment meets or
equals the criteria of an impairment listed in 20 C.F.R., part 404, subpart p, Appx. 1.
§ 404.1 520(a)(4)(iii). If the claimant does not have an impairment which meets or equals the
criteria, at step four the Commissioner must determine whether the claimant's impairment or
impairments prevent him from performing his past relevant work. See id. at § 404.l520(a)(4)(iv).
If so, the Commissioner must determine, at step five, whether the claimant can perform other
work which exists in the national economy, considering her residual functional capacity and age,
education and work experience. See id. § 404.1520(a)( 4)(v). See also McCrea, 370 F .3d at 360;
Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000). In this case, the Commissioner uses the
sequential evaluation process and determines at step (4) that the Plaintiff has not met her burden
12
of proof that she cannot return to her past work as a factory assembler. Therefore, because the
Plaintiff was determined able to perform her past work she was found not disabled by the ALJ.
(ECF No. 12 at 23). The Commissioner also determines that Plaintiff could perform other jobs
that exist in significant numbers in the national economy as stated in step (5).
In support of her motion for summary judgment, Plaintiff generally argues that the ALJ
relied upon portions of multiple opinions of the non-examining State Agency medical
consultants, Dr. Milke and Dr. Hillin but did not give proper deference to Plaintiffs treating
physician Dr. Prabhu. (Pl.'s Br. Supp. Summ. Ju. 10-11, ECF No. 10 (hereinafter ECF No. 10».
Dr. Milke opined that the Plaintiff has major depressive disorder, anxiety disorder, and
borderline personality disorder. (ECF No. 10 at 11). Dr. Hillin opined that the Plaintiff has
major depressive disorder, anxiety disorder, and borderline personality features. Id. However,
both of these doctors only found the Plaintiff to be mild to moderately affected by the symptoms
of those diagnoses. Further, Plaintiff argues that Dr. Wyszomierski, the state agency medical
consultant who provided the physical residual functional capacity assessment, is not an
acceptable medical source, and therefore, her opinion does not meet the standards of substantial
evidence. (Id. at 13-14). Dr. Wyszomierski's evaluation was the basis for the VE finding that
jobs exist in significant numbers in the national economy for which the Plaintiff is qualified.
Dr. Prabhu, on the other hand, opined that Plaintiff experienced manic episodes that
involved high risk behaviors and irrational spending. Dr. Prabhu also stated that Plaintiff has
moderate limitations in her ability to understand, remember, and carry out instructions. Further,
she stated that Plaintiff has marked limitations in her ability to respond appropriately to
supervisors, coworkers, and work pressures in a regular setting. (ld. at 11).
13
In response to Plaintiffs arguments, Defendant generally alleges that the ALJ's
determination that Plaintiff was not disabled is supported by substantial evidence. Furthermore,
the Commissioner refutes Plaintiffs accusation that the ALl did not give adequate weight to
Plaintiffs treating physician stating that under 20 C.F.R. § 416.927(d), "a treating physician's
opinion about a claimant's ability to work ... is not entitled to any special deference." (ECF No.
12 at 24).
Controlling weight is given to a treating source's opinion given the length of
treatment, nature and extent of treatment relationship, supportability (Le. medical signs and
laboratory findings), and consistency with other evidence of record. See 20 C.F.R. § 416.927(c).
It is the Commissioner's assertion that the ALJ considered all the evidence of record, including
treatment notes of treating physician Dr. Prabhu, notes from evaluators Drs. Hillin and Milke,
and the Plaintiffs own statements when determining that Plaintiff was not disabled and eligible
to work. In addition, the Commissioner states the record makes clear that Dr. Wyszomierski is
an acceptable medical source as a licensed medical doctor. We agree with the Commissioner on
all points.
Whether the ALJ Erroneously Evaluated the Medical Evidence
As the finder of fact, the ALJ is required to review, properly consider, and weigh all of
the medical records provided concerning the Plaintiffs claims of disability. See Fargnoli v.
Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (citing Dobrowolsky v. Califano, 606 F.2d 403, 406
07 (3d Cir. 1979)). "In doing so, an ALl may not make speCUlative inferences from medical
reports." Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir 1999). When the medical evidence of
records conflicts, "the ALJ may choose whom to credit but 'cannot reject evidence for no reason
or for the wrong reason." Id (citing Mason v. Shalala, 994 F2d 1058, 1066 (3d. Cir. 1993)).
14
According to Plaintiff, the ALJ erred in not giving adequate weight to the Plaintiff's
treating medical doctor. (ECF No.1 0 at 11). Plaintiff cites to Akers v. Callahan stating that the
ALJ must consider all medical evidence of record and provide adequate reasons for dismissing or
discrediting evidence, especially when treating physician testimony is discarded. 997 F. Supp.
648, 653 (W.O. Pa 1998).
Plaintiff continues by saying that the ALJ did not mention Dr.
Prabhu's assessment, nor did she assign weight to the opinions expressed by Dr. Prabhu. (ECF
No. 10 at 12). Plaintiff further states there was no evidence to contradict Dr. Prabhu's opinion,
and therefore, Dr. Prabhu's opinion should have controlling weight. Id.
Plaintiff also argues that the ALJ did not follow the Commissioner's ruling at the Social
Security Regulation 85-15 emphasizing, "A substantial loss of ability to meet any ... basic
work-related activities would severely limit the potential occupational base. This, in tum, would
justify a finding of disability. .. Thus, the mentally impaired may have difficulty meeting the
requirements of even so-called "low stress" jobs." (ECF No. 10 at 13).
Finally, Plaintiff asserts that the ALJ only relied on "selected" portions of opinions from
State Agency medical consultant, Dr. John Kalata and non-examining State Agency medical
consultant, Mary Ellen Wyszomierski. (Id. at 14).
The Commissioner responded in his Brief in Support of Motion for Summary Judgment
(ECF No. 12) with a laundry list of all his considerations when confirming the determination that
the Claimant was not disabled.
More specifically, he notes that the ALJ considered the
following, for example: Rose's statements to Nurse Eastman on November 3, 2010, that she had
no problems with coworkers or crowded places, she also denied depression or panic attacks and
felt her medication managed her anxiety. (Id. at 25). Dr. Prabhu's April 2008 finding that
Plaintiff was benefitting from mental health therapy and medication and noted a GAF of 55-60,
15
indicative of moderate limitations. Id. Dr. Hillin's 2010 finding that Plaintiff had a GAF of65,
which finds Plaintiff at a slightly greater functioning level than Dr. Prabhu in 2008. The Court
finds these assessments in no way contradictory, and, in fact, interprets them as relatively
consistent with one another.
The ALl does not ignore the fact that Plaintiffs medications
required adjusting for mental health management over time but it was also noted that the
adjustments were often effective in Plaintiffs mental health management. (Id. at 25-6). The
Commissioner provides this information as proof that the ALl properly considered various data
provided from Dr. Prabhu as well as data provided by Dr. Milke, the reviewing psychologist, and
Dr. Hillin, the psychologist who performed a consultative examination. (Id. at 27). The District
Court's role is limited to determining whether substantial evidence exists in the record to support
the ALl's findings of fact. See Bums v. Barnhart. 312 F.3d at 113,118 (3d Cir. 2002). Here we
find a plethora of substantial evidence from various credible sources.
Whether the ALJ Committed an Error of Law in his Assessment of the Evidence of Record
Regarding the Plaintiffs Mental Impairments.
In support of Plaintiff s argument, other cases have found the treating physicians' reports
to be the deciding factor in a determination of disability. Treating physicians' reports should be
accorded great weight, especially "when the opinion reflects on expert judgment based on a
continuing observation of the patient's condition over a prolonged period of time." Rocco v.
Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987); See 20 C.F.R. § 404. 1527(d)(2). Moreover, the
ALJ must consider all evidence and give some reason for dismissing the evidence he chooses to
reject. See Plummer, 186 F. 3d at 429 (citing Stewart v. Secretary ofH.E.W., 714 F.2d 287, 290
(3d Cir. 1983).
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The regulations offer that more weight IS gIven to a claimant's treating physician
because:
[T]hese sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations.
20 C.F.R. § 404. 1527(c)(2).
Further, "Where a treating source's opinion on the nature and severity of a claimant's
impairment is 'well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant's] case
record," it will be given "controlling weight." Id.
The Commissioner considers the following factors in determining the weight to be given
to a treating physician:
(l) "the [l]ength of treatment relationship and the frequency of
examination; (2) the [n]ature and extent of the treatment relationship; (3) whether the diagnosis
is supported by the source's findings; (4) whether the diagnosis is consistent with the record as a
whole; (5) whether the source is a specialist in any given area; and (6) any other reason to give a
particular source weight in determining disability." 20 C.F.R. § 404.1 527(d).
As stated above, the ALJ cited to several medical resources, including treating physician,
Dr. Prabhu, as well as Dr. Wyszomierski and the VE in determining the credibility of Plaintiffs
subjective description of her limitations and her limitations for work. In 2007, the VE, based on
Dr. Wyszomierski's evaluationS that Plaintiff could lift and carry 20 pounds occasionally and 10
5 It is worth noting that while not identical, Dr. Wyszomierski's assessment is consistent with the October
27,2009 assessment of Plaintiff performed by Dr. Kalata. Dr. Kalata opined that Plaintiff could lift or carry 2-3
pounds frequently and 10 pounds occasionally, stand and walk for I hour or less, and sit without lim itation. He
reported she was limited in her ability to push and pull using both the upper and lower extremities, but that she could
bend, kneel, stoop, crouch, balance, and climb occasionally. He asserted she should not be exposed to poor
ventilation, heights, vibration, wetness, dust, and fumes/odors/gases. CR. at 372-3). In summary, both evaluators
find Plaintiff to be able to perform some kind of work.
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pounds frequently, could walk in excess of two hours but less than 6 hours, could stoop, crouch,
crawl, squat, kneel, and balance but could not use ladders, scaffolds, dangerous heights, or
machinery and should avoid concentrated exposure to heat, cold, and vibrations and taking into
consideration that the type of job should have minimal contact with the general public due to
anxiety and stress, (R. at p. 55-6), the VE reported that there were jobs in significant numbers in
the national economy that are appropriate for a person with the same restrictions as Plaintiff and
jobs such as her past work or that of garment sorter. (R. at 55-64).
In this case we do not find the ALl to have rejected the opinion of the treating physician.
In fact, to the contrary, we find that the ALl considered much of the data provided by the treating
physician, including data that found the Plaintiff moderately disabled in some areas and data that
found Plaintiff to be functioning at a higher level. It is the opinion of this Court that the ALl,
properly considered Dr. Prabhu's data as well as data from other medical professionals, with
proper credentials, to determine that Plaintiff is not disabled under the law. We further find that
this determination is supported by substantial evidence in the record. In particular, the ALl
noted that "several physicians/psychologists/mental health practitioners, including Dr. Prabhu,
Dr. Kalata, Dr. Hillin, and Nurse Eastman documented consistently over time that Rose's mental
status was stable and that her medications had been effective in addressing her mental health
problems." (ECF No. 12 at 27).
It is a well-accepted principle that if a condition can be
controlled with medication or treatment, it is not disabling under the Act. (Id; Lovelace v.
Bowen, 813 f.2d 55, 59 (5 th Cir. 1987); See~, Brown v. Bowen, 845 F.2d 1211, 1215 (3d Cir.
1988).
Moreover, we understand from the record that the ALl finds the bulk of medical evidence
on record consistent with the evaluations of Drs. Hillin and Milke, and therefore, the ALl found
18
their opinions were persuasive in that Plaintiff was capable of handling some type of work.
Because state agency medical and psychological consultants are "highly qualified" physicians
and psychologists and "experts in the evaluation of the medical issues in disability claims under
the Act," their opinions are entitled to weight. See SSR 96-6p; 20 C.F.R. § 416.927(e)(2). We
find this argument persuasive in considering the weight to be afforded to each evaluator's
opinion.
Further, the ALl provided persuasive reasoning for rejecting Dr. Prabhu's evaluation as
having great or controlling weight; Dr. Prabhu filled out a check-marked form that provided
conclusions that were without support and inconsistent with other substantial evidence in the
record. The form was also incomplete lacking answers to several pertinent questions. (See R. at
538-40; Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (stating that forms requiring a
physician to only check boxes or fill in blanks are weak evidence at best, and that when such
forms are unaccompanied by thorough written reports their reliability is suspect.). While, the
report was completed on March 15,2011, and was one of the most recent reports provided on the
Plaintiff s condition, it was only a few months after another report dated December 21, 2010
which states, "Patient comes in and states that she is doing very well ...She gets anxiety attacks
once in a blue moon but the medications are helping." (R. at 526). The ALJ may reject a
treating physician's opinion outright only on the basis of contradictory medical evidence, and not
on the basis of the Commissioner's own judgment or speculation, although he may afford a
treating physician's opinion more or less weight depending upon the extent to which supporting
explanations are provided. See Plummer, 186 F.3d at 429. Thus, the ALl rightly considered all
medical opinions as a whole, assigning proper weight to each evaluating professional based on
the evidence of record. The overwhelming majority of evidence of record as a whole supports a
19
finding that Plaintiff is not disabled and that there is available work in the national economy
which would be appropriate for Plaintiff in light of her medical conditions.
VII.
Conclusion
For the foregoing reasons, we conclude that there is substantial evidence existing in the
record to support the Commissioner's decision that Plaintiff is not disabled, and therefore, the
Plaintiffs Motion for Summary Judgment is denied. The Defendant's Motion for Summary
Judgment is granted and the decision of the ALJ is affinned.
An appropriate order will be entered.
Date:
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Maurice B. Cohill, Jr.
Senior United States District Court Judge
counsel of record
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