HARRIS v. ASTRUE

Filing 30

ORDER denying 19 Motion for Summary Judgment; entered 23 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/12/14. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COREY HARRIS,

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Plaintiff,
-vsCAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 12-209E

AMBROSE, Senior District Judge

OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 19 and
23). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 20 and 24). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am granting Defendant=s Motion for Summary Judgment (ECF No. 23) and denying Plaintiff=s
Motion for Summary Judgment. (ECF No. 19).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (ACommissioner@) denying his application for disability insurance benefits and
supplemental security income pursuant to the Social Security Act (AAct@).

Plaintiff filed an

application for benefits on February 28, 2006, alleging he had been disabled since December 1,
2004. (ECF Nos. 17, pp. 106, 117).

The Appeals Counsel remanded the case after an initial

decision denying Plaintiff’s applications.

(ECF No. 17, pp. 339-341). On remand, a new

Administrative Law Judge (“ALJ”), Douglas Cohen, held a supplemental hearing on July 1, 2010.
(ECF No. 17, pp. 562-609). On August 31, 2010, the ALJ found that Plaintiff was not disabled
1

Carolyn W. Colvin became acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue.

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under the Social Security Act. (ECF No. 17, pp. 43-55). After exhausting all administrative
remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 19 and 23).
The issues are now ripe for review.
II. LEGAL ANALYSIS
A. STANDARD OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as Amore than a mere scintilla. 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). Additionally,
the Commissioner=s findings of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. '405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court
cannot conduct a de novo review of the Commissioner=s decision or re-weigh the evidence of
record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact
are supported by substantial evidence, a court is bound by those findings, even if the court would
have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
To determine whether a finding is supported by substantial evidence, however, the district court
must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when

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evaluating the disabled status of each claimant.

20 C.F.R. '404.1520(a).

The ALJ must

determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional capacity.
20 C.F.R. '404.1520.

The claimant carries the initial burden of demonstrating by medical

evidence that he is unable to return to his previous employment (steps 1-4). Dobrowolsky, 606
F.2d at 406.

Once the claimant meets this burden, the burden of proof shifts to the

Commissioner to show that the claimant can engage in alternative substantial gainful activity
(step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.

RESIDUAL FUNCTIONAL CAPACITY (“RFC”)2

Plaintiff argues that the ALJ’s RFC finding is not supported by substantial evidence.
(ECF No. 20, pp. 14-19). More specifically, Plaintiff argues that the ALJ erred in giving “significant
weight” to the non-examining state agency psychologist, Dr. Dalton, while affording only “some

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RFC refers to the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). The
assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions,
and the individual’s subjective allegations and description of her own limitations. 20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3). The final responsibility for determining a claimant's RFC is reserved to the Commissioner, who will
not give any special significance to the source of another opinion on this issue. 20 C.F.R. §§ 404.1527(e)(2),
416.927(e)(2).

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weight” to portions of the opinions of examining psychologists, Dr. Kohn and Dr. Thompson. Id. To
this end, Plaintiff submits that the ALJ erred in two ways: 1) “by crediting the opinion of a
non-examining physician over that of examining physicians,” and 2) because Dr. Dalton’s opinion
is not supported by the evidence. (ECF No. 20, pp. 16-17). Thus, Plaintiff submits that this case
should be remanded. Id. at 17.
Contrary to Plaintiff’s assertion, a examining physician does not get more weight over a
non-examining consultant simply because of that fact. Rather, the amount of weight accorded to
a physician’s opinions is well established.
“A cardinal principle guiding disability determinations is that the ALJ accord
treating physicians' reports great weight, especially ‘when their opinions reflect
expert judgment based on continuing observation of the patient's condition over a
prolonged period of time.’ ” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, “where ...
the opinion of a treating physician conflicts with that of a non-treating,
non-examining physician, the ALJ may choose whom to credit” and may reject the
treating physician's assessment if such rejection is based on contradictory medical
evidence. Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating
physician is to be given controlling weight only when it is well-supported by medical
evidence and is consistent with other evidence in the record.
Becker v. Commissioner of Social Sec. Admin., No. 10-2517, 2010 WL 5078238, *5 (3d Cir. Dec.
14, 2010). Moreover, “[t]he law is clear ... that the opinion of a treating physician does not bind
the ALJ on the issue of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d Cir.
2011). State agent opinions merit significant consideration. See SSR 96–6p (“Because State
agency medical and psychological consultants ... are experts in the Social Security disability
programs, ... 20 C.F.R. §§ 404.1527(f) and 416.927(f) require [ALJs] ... to consider their findings
of fact about the nature and severity of an individual's impairment(s)....”) Based on the same,
Plaintiff’s first argument, that the ALJ erred simply by giving greater weight to a non-examining
psychologist, has no merit.

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With regard to Plaintiff’s second argument, that Dr. Dalton’s opinion is inconsistent with
the medical evidence, I disagree. The ALJ gave the following opinions of Dr. Dalton significant
weight: 1) “the claimant would experience difficulties in interacting with the public, supervisors,
and coworkers,” and 2) “the claimant would have mild difficulties in his activities of daily living,
moderate difficulties in social functioning, and experienced one or two episodes of
decompensation.” (ECF No. 17, p. 53). A review of the record reveals that the ALJ’s opinion is
supported by substantial evidence. See, ECF No. 17, pp. 216-219, 227-236, 374-384. As a
result, I find no error in this regard.
C.

DEVELOPMENT OF THE RECORD

Next, Plaintiff submits that the ALJ erred by failing to recontact treating physician, Dr.
Eberly, for an opinion of Plaintiff’s limitations resulting from his mental impairments. (ECF No.
20, pp. 17-19). An ALJ has the duty to fully develop the record to make a determination of
disability. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). To that end, an ALJ is required
to recontact a medical source for clarification only “when they provide opinions on issues reserved
to the Commissioner and the bases for such opinions are not clear….”. SSR 96-5p (policy
interpretation); see also, 20 C.F.R. §404.1512(e)(1). In this case, the records were complete
and there is nothing ambiguous or unclear about Dr. Eberly’s assessment or treatment records.
(ECF No. 17, pp. 389-414, 417, 522-539). Based on the evidence of record, I find that the
assessment and treatment records of Dr. Eberly were unambiguous such that, together with all of
the evidence of record, the ALJ was able to make a disability determination. Therefore, the ALJ
was not required to recontact Dr. Eberly. Consequently, I find no error in this regard.
D.

CREDIBILITY DETERMINATION

Plaintiff argues that the ALJ’s credibility determination is not supported by substantial
evidence. (ECF No. 20, pp. 19-20). To be clear, an ALJ is charged with the responsibility of

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determining credibility. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson,
500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975). The ALJ must consider “the
entire case record” in determining the credibility of an individual’s statement. SSR 96-7p. The
ALJ’s decision “must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to the individual's statements and the
reason for that weight.” Id. I must defer to the ALJ=s credibility determinations, unless they are
not supported by substantial evidence. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981);
Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975).
Specifically, Plaintiff submits that the ALJ erred because he stated that “his case manager
Howard Savoy testified that Plaintiff was much better when taking his medication” but that Mr.
Savoy never made such comment. (ECF No. 20, p 20). I find no merit to this argument. While
Mr. Savoy did not state the exact words, this was the overall import of his testimony. See, ECF
No. 17, pp. 592, 595, 597.
Plaintiff further argues that ALJ erred in assessing Plaintiff’s credibility because the ALJ
“failed to consider Mr. Savoy’s testimony that Plaintiff has difficulty walking from the car to the
parking lot of his agency. T593. When he walks with Plaintiff, there have been times where
they cannot walk more than a half block before turning back, and Plaintiff will often noticeably
wince with pain when he steps on his left foot. T 593-94.” (ECF No. 20, p. 20). After a review
of the record, I disagree with Plaintiff. The ALJ specifically recognized this testimony when he
stated that Mr. Savoy “further reported that the claimant had exhibited difficulties with walking and
pain behavior (wincing).” (ECF No. 17, p. 50). Consequently, I find no merit to this argument.
C.

HYPOTHETICAL QUESTION TO THE VOCATIONAL EXPERT

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The last argument by Plaintiff is that the ALJ erred in failing to ask the vocational expert
hypothetical questions that accurately reflect Plaintiff=s impairments. (ECF No. 20, pp. 20-21). I
disagree. An ALJ is required to accept only hypothetical questions which accurately reflect a
plaintiff’s impairments. See, Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Plaintiff submits that the hypothetical questions are
incorrect based on the errors as argued above. (ECF No. 10, pp. 11-12). Since I have found no
error above, I find no foundation for this argument.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COREY HARRIS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsCAROLYN W. COLVIN,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 12-209E

AMBROSE, Senior District Judge.
ORDER OF COURT
THEREFORE, this 12th day of February, 2014, it is ordered that the decision of the ALJ is
affirmed and Plaintiff=s Motion for Summary Judgment (Docket No. 19) is denied and Defendant=s
Motion for Summary Judgment (Docket No. 23) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Carolyn W. Colvin became acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue.

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