MILLARD v. ASTRUE

Filing 15

ORDER denying 11 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/7/14. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
VICKY DEE MILLARD,

)
)
) No. 12-317
)

Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER
SYNOPSIS
In this matter, Plaintiff sought disability insurance benefits on August 12, 2008. The
application was denied initially and on reconsideration. She then filed a second claim for
benefits on March 26, 2010. Her claims of disability include diabetic neuropathy, vertigo, sleep
apnea, and degenerated discs. She now appeals the decision of the ALJ, primarily on grounds
that the ALJ improperly decided that she could perform limited sedentary work. Before the
Court are the parties’ cross-motions for summary judgment. For the following reasons,
Plaintiff’s Motion will be denied, and Defendant’s granted.
OPINION

I. STANDARD OF REVIEW
Judicial review of the Commissioner's final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3) 7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
district court's role is limited to determining whether the record contains substantial evidence to

support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh the evidence of record; the court can only judge the propriety of the decision with
reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer
v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
67 S. Ct. 1575, 91 L. Ed. 1995 (1947).
II. THE PARTIES’ MOTIONS
Plaintiff contends that the ALJ erred when he determined that jobs existed in significant
numbers that Plaintiff could perform. In so doing, Plaintiff argues, the ALJ improperly relied on
a psychologist in order to assess her physical work limitations and arrive at an RFC. Relatedly,
she contends that he improperly discounted the opinion of Plaintiff’s treating physician, Dr. Los,
and improperly rejected VE testimony that would have incorporated limitations based on Dr.
Los’ opinion.
In this case, the ALJ found that Plaintiff had the residual functional capacity to perform
sedentary work, with limitations on the operation of foot controls, crawling, kneeling, climbing,
and balancing on heights, and fine fingering or manipulation with the hands.
Plaintiff contends that the ALJ erred in assigning significant weight to Dr. Banks, who
completed a psychiatric review technique. There is no suggestion, however, that the ALJ

considered Dr. Banks opinion as relevant to Plaintiff’s physical abilities. Instead, he specifically
referred to her finding that Plaintiff has no medically determinable mental impairments, and did
not find that her opinion had any bearing on Plaintiff’s physical issues. Thus, while the reference
to Dr. Banks appears gratuitous, it was harmless.
Instead, in assessing Plaintiff’s physical condition, the ALJ considered the records and
opinion of Plaintiff’s treating physician, Dr. Los, and Plaintiff’s subjective complaints. Dr. Los is
the only pertinent medical source of record. In 2011, Dr. Los completed a Medical Statement
Regarding Peripheral Neuropathy for Social Security Disability Claim. He concluded that
Plaintiff could work 4 hours per day, with various limitations. Dr. Los was of the opinion that
Plaintiff was limited by her pain and balance as a result of the neuropathy, and noted that her
pain persists despite the medications. Acknowledging that Dr. Los’ opinion would normally be
entitled to great weight, the ALJ concluded that this opinion was not supported by Dr. Los’ own
treatment notes, which indicate that Plaintiff’s condition is not as severe as stated, and “include
relatively normal examinations.” Thus, it was given “little weight.”
True, affording a treating source little weight is atypical. An ALJ, however, may give
less weight to a treating physician’s opinion that is inconsistent with the physician’s own
treatment notes. Chetoka v. Colvin, 2014 U.S. Dist. LEXIS 9387 (W.D. Pa. Jan. 14, 2014). In
order to be accorded greater weight, the treating physician's opinion must be "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with
the other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2). “[A]n ALJ may
grant less weight to the opinion of a treating physician depending on the extent to which
supporting explanations are included. … Form reports in which a physician's obligation is only
to check a box or fill in a blank are at best weak evidence, particularly when unaccompanied by

objective supporting evidence.” Chetoka, 2014 U.S. Dist. LEXIS 9387, at **36-37. In this case,
Dr. Los’ opinion relied on Plaintiff’s pain, rather than objective medical tests. Dr. Los’ records
contain several normal examinations, and stable neuropathy. Thus, the ALJ properly considered
the longitudinal record and determined the weight to be afforded Dr. Los’ Medical Statement.
As the ALJ stated, The ALJ carefully discussed Plaintiff’s subjective pain complaints and did not
find them fully credible. It follows, too, that the ALJ’s treatment of the VE testimony is
supported by substantial evidence.
CONCLUSION
Due to the very limited scope of review to which I am bound, and the fact that I am
precluded from re-weighing the evidence, I am constrained to find that the ALJ’s decision was
supported by substantial evidence under applicable standards. Therefore, Plaintiff’s Motion will
be denied, and Defendant’s granted. An appropriate Order follows.
ORDER
AND NOW, this 7th day of February, 2014, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion for Summary Judgment is DENIED, and Defendant’s
GRANTED.
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose
Senior Judge, U.S. District Court