LEWIS v. ASTRUE

Filing 14

ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/13/2014. (sps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIMOTHY T. LEWIS,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner
of Social Security,1
Defendant.

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Civil Action No. 1:12-210

AMBROSE, Senior District Judge

OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. (Docket Nos. 10
and 12). Both parties have filed Briefs in Support of their Motions. (Docket Nos. 11 and 13).
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 (Docket No. 12) and denying
Plaintiff’s Motion for Summary Judgment. (Docket No. 10).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
and under Title II of the Social Security Act (the “Act”) and for Supplemental Security Income
(“SSI”) under Title XVI of the Act. Plaintiff applied for DIB and SSI on or about December 4,

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Carolyn Colvin became the Acting Commissioner of Social Security on February 14, 2013 and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).

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2008. (R. 153-162).

In his applications, he alleged that since May 15, 2008, he had been

disabled due to diabetes with neuropathy, depression, anxiety, and a learning disability. (R.
175).

Administrative Law Judge (“ALJ”) Timothy McGuan held a hearing on July 27, 2010, at

which Plaintiff was represented by counsel. (R. 40-78). Plaintiff appeared at the hearing and
testified on his own behalf. Id. A vocational expert also was present at the hearing and testified.
(R. 68-75).

In a decision dated September 28, 2010, the ALJ found that jobs existed in

significant numbers in the national economy that Plaintiff could perform and, therefore, that
Plaintiff was not disabled under the Act. (R. 30-39). Plaintiff requested review of the ALJ’s
determination by the Appeals Council, and, on July 16, 2012, the Appeals Council denied
Plaintiff’s request for review. (R. 1-3). Having exhausted all of his administrative remedies,
Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 10 and 12).
The issues are now ripe for my review.
II.
A.

LEGAL ANALYSIS
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 “more 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)). Determining
whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler,
786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “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 evidence – particularly certain types of evidence (e.g., that offered by
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treating physicians).”

Id.

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, 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. § 1382(a)(3)(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
evaluating the disabled status of each claimant. 20 C.F.R. §§ 404.1520, 416.920. 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, app. 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, 416.920. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
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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.

WHETHER THE ALJ PROPERLY SUPPORTED HIS RESIDUAL FUNCTIONAL
CAPACITY FINDING WITH SUBSTANTIAL RECORD EVIDENCE
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform light

work, except that he needed the accommodation of alternating at will between sitting and
standing or walking; he could occasionally understand, remember, and carry out complex and
detailed tasks; he could occasionally interact with the public; and he could occasionally perform
postural activities, except that he could not climb ladders, ropes, or scaffolds. (R. 34). Plaintiff
argues that this RFC finding is deficient because the ALJ improperly rejected the opinions of
Plaintiff’s treating mental health providers, Drs. Fokstuen and Neerukonda, without identifying any
contrary medical evidence. Pl.’s Br. (ECF No. 11) at 11-12.2 This argument is without merit.
As the Court of Appeals for the Third Circuit has explained:
“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.
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Plaintiff does not challenge the ALJ’s findings regarding his physical impairments and resulting limitations.
Accordingly, I address only Plaintiff’s mental impairments herein.

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Becker v. Comm’r of Social Sec. Admin., 403 F. App’x 679, 686 (3d Cir. 2010). Although the ALJ
may choose whom to credit when faced with a conflict, he “cannot reject evidence for no reason or
for the wrong reason.” Diaz v. Comm’r of Soc. Security, 577 F.3d 500, 505 (3d Cir. 2009).
Here, contrary to Plaintiff’s assertions, the ALJ adequately explained his reasons for declining to
give great weight to the opinions of Drs. Fokstuen and Neerukonda and supported those reasons
with substantial record evidence, including contrary medical evidence.
First, Plaintiff contends that the ALJ erroneously rejected an employability form for the
Bradford County Assistance Office of the Pennsylvania Department of Welfare that psychiatrist
Terje Fokstuen completed in November, 2008, on which he checked a box stating that Plaintiff
was “permanently disabled.” R. 36, 256-258. In support of this argument, Plaintiff incorrectly
represents that the ALJ rejected Dr. Fokstuen’s opinion because “it lacked basis and that Dr.
Fokstuen had no other treatment records in evidence.” Pl.’s Br. (ECF No. 11) at 11. In actuality,
the ALJ appropriately rejected the opinion in its entirety because the form itself was “not
accompanied by supporting evidence as would be found in treatment records.”

(R. 36).

Although the record includes other treatment records from Dr. Fokstuen and his associates, those
records were not part of and did not accompany the bare-bones DPW form.3 As the Court of
Appeals for the Third Circuit has recognized, “check-the-box” forms such as this are inherently
suspect and are “weak evidence at best.” See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.
1993); Grogan v. Comm’r of Social Security, 459 F. App’x 132, 138 n.7 (3d Cir. 2012); see also
Gibson v. Astrue, Civ. A. No. 09-1227, 2010 WL 1257456, at *13-*14 (W.D. Pa. Mar. 30, 2010)

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Contrary to Plaintiff’s assertions in his brief, the ALJ did not state that Dr. Fokstuen had no other
treatment records in evidence. As set forth above, the ALJ stated only that the DPW form itself was
unaccompanied by supporting evidence. The ALJ not only acknowledged the existence of treatment
records from Dr. Fokstuen and his associates in his opinion, but also cited to them repeatedly throughout.
(R. 33, 35-36, citing Exhibits 3F, 5F, 15F, 19F). Incidentally, those records do not impose any work
limitations or otherwise support a finding of “permanent disability” within the meaning of the Act.

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(ALJ did not err by giving little weight to DPW check-the-box form). Further, the ultimate issue of
whether an individual is disabled within the meaning of the Act is for the Commissioner to decide.
Thus, the ALJ is not required to afford special weight to a statement by a medical source that a
claimant is “disabled” or “unable to work.” See 20 C.F.R. §§ 404.1527(d)(1), (3); 416.927(d)(1),
(3); Dixon v. Comm’r of Social Security, 183 F. App’x 248, 251-52 (3d Cir. 2006) (“[O]pinions on
disability are not medical opinions and are not given any special significance.”). For all of these
reasons, the ALJ’s rejection of the DPW form was proper and supported by substantial evidence.
Second, Plaintiff argues that the ALJ erroneously rejected the opinion of psychiatrist
Sampath Neerukonda who examined Plaintiff on February 22, 2010 and April 19, 2010. Pl.’s Br.
[ECF No. 11], at 11-12. In addition to three pages of examination notes, Dr. Neerukonda
completed a “treating medical source statement regarding the nature and severity of an
individual’s mental impairments” on April 19, 2010 stating that Plaintiff was markedly limited in his
ability to understand and remember short, simple instructions and detailed instructions; and in his
ability to respond appropriately to changes in a routine work setting. (R. 440-445). The form
also stated that Plaintiff had extreme limitations in his ability to: carry out detailed instructions;
make judgments on simple, work-related decisions; interact appropriately with the public,
supervisors, and co-workers; and respond appropriately to work pressures in a usual work
setting. (R. 443-445). Dr. Neerukonda further opined on the form that he thought Plaintiff was
likely to call off work four days out of a five-day workweek and would be medically unable to
complete a full workday five days out of a five-day workweek. (R. 445). Near the end of the
form, Dr. Neerukonda wrote, “I don’t think he is able to work at all” due to his limitations. Id. The
ALJ dismissed Dr. Neerukonda’s opinion “out of hand” because it was “grossly inconsistent” with
Dr. Neerukonda’s own treatment records that accompanied the assessment as well as with the
GAF scores in the 65-70 range that Dr. Neerukonda assigned. (R. 36-37).
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Plaintiff argues that the ALJ erred in rejecting Dr. Neerukonda’s opinion because he failed
to recontact Dr. Neerukonda to clarify any perceived ambiguity in that opinion and failed to identify
any contrary medical evidence. ECF No. 11 at 12. This argument is without merit. As an initial
matter, the ALJ did not reject Dr. Neerukonda’s opinion because it was ambiguous. Rather, as
set forth above, he dismissed the opinion because it was inconsistent with Dr. Neerukonda’s own
treatment records as well as the high GAF scores that Dr. Neerukonda assigned. (R. 36-37).
The record evidence supports the ALJ’s decision.

For example, Dr. Neerukonda’s records

reflect that, although Plaintiff had a depressed mood and anxious affect upon examination, he
also was alert, awake and responsive; was oriented to place and person; had coherent, logical,
and relevant speech; had no loosening of association or flight of ideas; had no paranoia or
suicidal thoughts; and had fair cognition. (R. 440-442). Plaintiff denied to Dr. Neerukonda ever
being depressed. (R. 441). The ALJ also cited evidence that Plaintiff lacked motivation to work
such as Plaintiff’s statements to Dr. Neerukonda that “he has always had a problem holding a job,
because after a while he does not care about the job” and that he had applied for disability and
was hoping it would work out. (R. 34-35, 441). With respect to Plaintiff’s GAF scores, Dr.
Neerukonda gave Plaintiff a score of 60-70, indicating primarily mild difficulty.4 (R. 37, 442).
It is well-established that an ALJ may reject a treating physician’s opinion that is
inconsistent with the other medical evidence of record, including that physician’s own progress
notes. See, e.g., Plummer v. Apfel, 186 F.3d 422, 430 (3d Cir. 1999); Burke v. Comm’r Soc.
Security, 317 F. App’x 240, 243-44 (3d Cir. 2009). Because the ALJ adequately explained his
reasons for rejecting the opinions in Dr. Neerukonda’s medical source statement and identified

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The GAF scale is used by clinicians to report an individual=s overall level of functioning. See Cainglit v.
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Barnhart, 85 F. App=x 71, 74-75 (10 Cir. 2003). A GAF score of 51-60 denotes “moderate symptoms . . .
OR moderate difficulty in social, occupational, or school functioning,” and a score of 61-70 indicates “some
mild symptoms . . . OR some difficulty in social, occupational, or school functioning . . . , but generally
functioning pretty well, has some meaningful relationships.” See DSM-IV-TR, at 34.

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significant examples of medical evidence inconsistent with and contrary to that opinion, including
Dr. Neerukonda’s own treatment notes, I find no error on this issue.
B.

WHETHER THE ALJ IMPROPERLY DISREGARDED SUBSTANTIAL EVIDENCE
FROM PLAINTIFF’S TREATING PHYSICIAN THAT SUPPORTS A FINDING OF
DISABILITY
Plaintiff’s second and final argument is that substantial medical evidence of record

establishes that the combination of his impairments and nonexertional and exertional limitations
preclude his ability to maintain competitive employment at any exertional level; therefore, the ALJ
erred in finding to the contrary. Pl.’s Br. [ECF No. 11] at 12-15. This argument is without merit.
As an initial matter, Plaintiff’s primary support for this argument is Dr. Neerukonda’s 2010 medical
source statement regarding Plaintiff’s mental health limitations. (R. 443-445). For the reasons
previously discussed, however, the ALJ appropriately discredited that opinion as inconsistent with
Dr. Neerukonda’s own treatment records and GAF score. (R. 36-37). Contrary to Plaintiff’s
assertions, the ALJ’s analysis in this regard was consistent with applicable regulations and policy
interpretations. See 20 C.F.R. §§ 404.1527, 416.927 (treating physician opinions not entitled to
controlling weight unless well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with the other substantial evidence of record; less
weight given to medical opinions unsupported by and/or inconsistent with the record as a whole);
S.S.R. 96-2p (a case cannot be decided in reliance on a medical opinion without some
reasonable support for the opinion); S.S.R. 96-5p (adjudicators must weigh medical source
statements under the rules set forth in 20 C.F.R. §§ 404.1527 and 416.927, providing appropriate
explanations for accepting or rejecting such opinions).
To the extent Plaintiff further argues that the ALJ failed to follow Social Security Ruling
85-15 (Pl.’s Br. at 14), that argument is likewise misplaced.

Social Security Ruling 85-15

addresses “the medical-vocational rules as a framework for evaluating solely nonexertional
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impairments.” S.S.R. 85-15. Although this ruling clarifies policies applicable in cases involving
mental impairments, nothing in the ruling mandates a finding of disability in this case. As noted
in Plaintiff’s brief, the ruling states, inter alia, that “the mentally impaired may have difficulty
meeting the requirements of even so-called ‘low-stress’ jobs.” S.S.R. 85-15 (emphasis added).
It does not stand for the proposition that the mentally impaired cannot meet such demands in
every case. To the contrary, the ruling emphasizes that it “is not intended to set out any
presumptive limitations for disorders, but to emphasize the importance of thoroughness in
evaluation on an individualized basis.” Id. Again, the ALJ conducted a thorough, individualized
evaluation in this case.
In short, the ALJ thoroughly discussed and considered Plaintiff’s mental health symptoms
and limitations in determining his RFC. After careful analysis of Plaintiff’s testimony and the
record evidence, the ALJ found that in addition to restrictions related to his physical impairments,
Plaintiff could only occasionally understand, remember and carry out complex and detailed tasks;
and could only occasionally interact with the public. (R. 34). The evidence the ALJ considered
in reaching this conclusion consisted of, inter alia, medical records and progress notes from
Plaintiff’s treating physicians, including the physicians at The Guidance Center and Dr.
Neerukonda; as well as Plaintiff’s GAF scores over time. See R. 34-37 (citing record evidence).5
As explained above, the ALJ properly determined that the record evidence did not support more
severe limitations. For all of these reasons, I find that substantial evidence supports the ALJ’s
RFC determination and that Plaintiff’s arguments to the contrary are without merit.

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The ALJ also cited evidence of malingering and untruthfulness on the part of Plaintiff with respect to the
extent of his disability and motivation to work. See R. 34-37 (citing record evidence).

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III.

CONCLUSION

For all of the foregoing reasons, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIMOTHY T. LEWIS,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner
of Social Security,1
Defendant.

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Civil Action No. 1:12-210

AMBROSE, Senior District Judge

ORDER OF COURT
AND NOW, this 13th day of January, 2014, after careful consideration of the submissions
of the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered
the decision of the ALJ is affirmed and Plaintiff’s Motion for Summary Judgment (Docket No. 10)
is DENIED and Defendant’s Motion for Summary Judgment (Docket No. 12) is GRANTED.

BY THE COURT:

/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge

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Carolyn Colvin became the Acting Commissioner of Social Security on February 14, 2013 and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).