MCCLELLAND v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

ORDER denying 11 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/11/2015. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LAVONNE MARIE McCLELLAND,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 13-364-E

ORDER

AND NOW, this 11th day of March, 2015, upon consideration of the parties=
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security=s final decision, denying plaintiff=s claim for supplemental security income benefits under
Subchapter XVI of the Social Security Act, 42 U.S.C. ' 1381, et seq., finds that the
Commissioner=s findings are supported by substantial evidence and, accordingly, affirms.

See 42

U.S.C. '405(g); Jesurum v. Secretary of U.S. Department of Health & Human Services, 48 F.3d
114, 117 (3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied
sub nom., 507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).

See also

Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence,
the Commissioner=s decision must be affirmed, as a federal court may neither reweigh the

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evidence, nor reverse, merely because it would have decided the claim differently) (citing Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

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The Court finds no merit in Plaintiff’s position that the Administrative Law Judge (“ALJ”)
erred in finding her to be not disabled. As to Plaintiff’s first argument regarding the weight
assigned to the opinion evidence, the ALJ’s finding that the opinion of the state reviewing agent,
Dr. Roger Glover, Ph.D., was entitled to more weight than that of the consultative examiner, Dr.
Derek Roemer, Ph.D., was thoroughly discussed and more than adequately supported by
substantial evidence. Moreover, the Court notes that the ALJ’s findings relied, not merely on the
opinion of Dr. Glover, but on the record evidence as a whole, including the objective medical
evidence, Plaintiff’s course of treatment, and her work history. (The Court further notes that the
ALJ erroneously referred to the state reviewing agent as Arlene Rattan, Ph.D., rather than as Dr.
Glover. This clearly appears to have been a mere clerical error, as the ALJ obviously was
discussing Dr. Glover’s opinion, which he correctly identified by its exhibit number (1A). The
parties have raised no concerns as to this issue, and, as stated, this appears to have been simply a
typographical or clerical mistake.)
Plaintiff’s argument that the ALJ’s residual functional capacity (“RFC”) determination was
insufficient, pursuant to Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), because it did not
expressly address her moderate limitations in regard to concentration, persistence, and/or pace
fares no better. First, in Ramirez, the ALJ had found that the claimant “often” suffered from
deficiencies of concentration, persistence, or pace, resulting in a failure to complete tasks in a
timely manner, and the Third Circuit Court of Appeals held that the ALJ’s RFC determination that
the claimant was limited to simple, repetitive one or two-step tasks did not sufficiently take the
claimant’s deficiencies into account. Here, the ALJ found that Plaintiff had “moderate”
limitations in concentration, persistence, or pace, as the Social Security regulations pertaining to
mental impairments were revised, and the evaluation of concentration, persistence, and pace was
changed from a five-point scale based on the frequency of the deficiencies to the current five-point
severity scale. See Reynolds v. Commissioner of Soc. Sec., 2011 WL 3273522, at *13 (W.D. Pa.
July 29, 2011). Although both “often” and “moderate” occupy the middle position in their
respective scales, more recent Third Circuit decisions have distinguished Ramirez based on the
difference between “often” suffering from these deficiencies and being “moderately” limited in
those areas. See McDonald v. Astrue, 293 Fed. Appx. 941, 946-47 (3d Cir. 2008) (noting that
the ALJ properly accounted for his finding that the claimant had moderate limitations in
concentration by limiting him to simple, routine tasks). See also Menkes v. Astrue, 262 Fed.
Appx. 410, 412 (3d Cir. 2008) (“Having previously acknowledged that [the claimant] suffered
moderate limitations in concentration, persistence and pace, the ALJ [properly] accounted for
these mental limitations in the hypothetical question by restricting the type of work to ‘simple
routine tasks.’”). The continuing validity of Ramirez under the new severity scale, therefore, is
questionable.

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Therefore, IT IS HEREBY ORDERED that plaintiff=s Motion for Summary
Judgment (document No. 11) is DENIED and defendant=s Motion for Summary Judgment
(document No. 13) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

More importantly, though, in Ramirez, the ALJ had limited the claimant to simple,
repetitive one or two-step tasks. Here, the mental limitations found by the ALJ in the RFC were
more extensive and specific. Plaintiff was limited to simple, routine, repetitive tasks; to low
stress work, defined as occasional simple decision-making and occasional changes in the work
setting; and to occasional interaction with co-workers and supervisors and no interaction with the
public. Further, Plaintiff was limited to work not performed in a fast-paced production
environment. (R. 17-18). These limitations go far beyond a limitation to simple, repetitive one
or two-step tasks and properly account for Plaintiff’s deficiencies in concentration, persistence,
and pace. Indeed, Plaintiff herself admits that the ALJ expressly indicated that his RFC findings
accounted for Plaintiff’s limitations in these areas. In finding, at Step 3 of the sequential
analysis, that Plaintiff had moderate limitations in concentration, persistence, and pace, he stated
that his Step 3 analysis was not an RFC assessment and that the RFC assessment at Steps 4 and 5
required a more detailed assessment by itemizing various functions contained in the broader
categories, such as concentration, persistence, and pace, employed at Step 3. (R. 17). This
demonstrates that the ALJ did not fail to address Plaintiff’s issues regarding concentration,
persistence, and pace, but rather dealt with them in a more specific manner at Steps 4 and 5.
Substantial evidence supports his determination.

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