JONES v. COLVIN

Filing 16

MEMORANDUM JUDGMENT ORDER denying 12 plaintiff's Motion for Summary Judgment and granting 14 defendant's Motion for Summary Judgment. The decision of the Acting Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 2/29/16. (kw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYL VANIA

DONALD JONES,
Plaintiff,

v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. IS-SE

MEMORANDUM JUDGMENT ORDER
AND NOW, this

J'I~fFebruary, 2016, upon consideration of the parties' cross-

motions for summary judgment pursuant to plaintiffs request for review of the decision of the
Acting Commissioner of Social Security ("Acting Commissioner") denying his application for
supplemental security income ("SSI") under Title XVI ofthe Social Security Act, IT IS ORDERED
that the Acting Commissioner's motion for summary judgment (Document No. 14) be, and the
same hereby is, granted and plaintiffs motion for summary judgment (Document No. 12) be, and
the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the AL] explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999). Where the ALJs
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even if it would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). Moreover, it is well settled that disability is not determined merely by the
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presence ofimpairments, but by the effect that those impairments have upon an individual's ability

to perform substantial gainful activity. Jones v. Sullivan, 954 F.2d 125,129 (3d Cir. 1991). These
well-established principles preclude a reversal or remand of the ALl's decision here because the
record contains substantial evidence to support the ALJ's findings and conclusions.
Plaintiff filed his SSI application on February 23,2012, alleging disability due to bipolar
disorder, agoraphobia, panic disorder, depression, anxiety, post-traumatic stress disorder, paranoid
thoughts, heart arrhythmia, high blood pressure and high cholesterol. Plaintiffs application was
denied. At plaintiffs request, an ALJ held a hearing on June 27,2013, at which plaintiff appeared
and testified while represented by counsel. On July 16,2013, the ALJ issued a decision finding
that plaintiff is not disabled. The Appeals Council denied plaintiffs request for review on
November 18, 2014, making the ALJ's decision the final decision of the Commissioner. The
instant action followed.
Plaintiff, who has an 11 th grade education, was 32 years old when he filed his application,
and is classified a youngerindividual under the regulations. 20 C.F.R. §4I6.963(c). Plaintiff does
not have any past relevant work experience, and he has not engaged in substantial gainful activity
at any time since he filed his application.
After reviewing plaintiff s medical records and hearing testimony from plaintiff and a
vocational expert at the hearing, the ALJ concluded that plaintiff is not disabled within the meaning
of the Act. The ALJ first found that plaintiff suffers from the severe impairments of bipolar
disorder, panic disorder with agoraphobia and depression; however, those impairments, alone or
in combination, do not meet or equal the criteria of any of the listed impairments set forth in
Appendix 1 of 20 C.F .R., Subpart P, Regulation No.4 ("Appendix 1").
The ALJ next found that plaintiff retains the residual functional capacity to perform work
at all exertional levels, but he has a number of non-exertional limitations. Plaintiff must avoid
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exposure to unprotected heights, dangerous machinery and workplace hazards. In addition,
plaintiff is limited to understanding, remembering and carrying out simple instructions and
performing simple, routine tasks. Further, plaintiffis precluded from any work related contact with
the public and he is restricted to only occasional and superficial interaction with co-workers and
only occasional supervision. Finally, plaintiff requires a low stress work environment with no
production rate pace work, but rather goal oriented work that involves only occasional and routine
change in the work setting (collectively, the "RFC Finding").
Based upon testimony by a vocational expert, the ALJ determined that plaintiff is capable
of performing work that exists in significant numbers in the national economy, such as a
dishwasher, janitor or cleaner. Accordingly, the ALJ found that plaintiff is not disabled within the
meaning of the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment that can be expected to last for a continuous period of
at least twelve months. 42 U.S.C. §1382c(a)(3)(A). The impairment or impairments must be so
severe that the claimant "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 ...." 42 U.S.C. §1382c(a)(3)(B).
The Social Security Regulations delineate a five-step sequential evaluation process for
determining whether a claimant is disabled. The ALJ must assess: (1) whether the claimant
currently is engaged in substantial gainful activity; (2) if not, whether he has a severe impairment;
(3) if so, whether his impairment meets or equals the criteria listed in Appendix 1; (4) if not,
whether the claimant's impairment prevents him from performing his past relevant work; and (5)
ifso, whether the claimant can perform any other work that exists in the national economy, in light
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ofhis age, education, work experience and residual functional capacity. I 20 C.F.R. §416. 920(a)( 4).
If the claimant is found disabled or not disabled at any step, further inquiry is unnecessary. ld.
In this case, plaintiff argues that the ALl's step 5 finding is not supported by substantial
evidence because the ALJ failed to properly consider the medical evidence ofrecord. For reasons
explained below, plaintiffs argument is without merit.
Plaintiff first contends that the ALJ failed to properly weigh the opinion of his treating
psychiatrist, Dr. Frank Yohe. A treating physician's opinion is entitled to controlling weight if it
is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence of record. 20 C.F.R. §416.927(c)(2). Under this
standard, the ALJ properly determined that Dr. Yohe' s opinion was entitled to little weight. (R. 25).
Dr. Yohe examined plaintiff only two times - on November 6, 2012, and subsequently on
February 7,2013, (R. 299-300, 302-303) - prior to completing a form report on May 23, 2013, and
rendering an opinion that plaintiff is markedly limited in interacting appropriately with the public,
co-workers and supervisors, markedly limited in responding to changes in a routine work setting,
and extremely limited in responding appropriately to work pressures in a usual work setting. (R.
305).

Dr. Yohe concluded that even routine, repetitive and simple entry level work would

exacerbate plaintiffs symptoms. (R. 305). Plaintiff argues that the ALJ should have given
controlling weight to Dr. Yohe' s opinion on those matters, and contends the ALJ further erred by
failing to adequately explain why he rejected the doctor's opinion.
Contrary to plaintiffs position, the ALJ summarized Dr. Yohe's assessment of plaintiffs
mental work-related capabilities and explained that Dr. Yohe' s opinion was not consistent with his

lResidual functional capacity is defined as that which an individual still is able to do despite the
limitations caused by his impainnents. 20 C.F.R. §416.94S(a)(l). In assessing a claimant's residual
functional capacity, the ALJ is required to consider the claimant's ability to meet the physical. mental,
sensory and other requirements of work. 20 C.F.R. §416.94S(a)(4).
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own treatment notes, which revealed that plaintiff had made progress, was stable overall, had much
less anxiety and generally had unremarkable mental status examinations. CR. 25). In addition, the
ALJ explained that Dr. Yohe's assessment was not consistent with OAF scores he assigned plaintiff
or with plaintiff's treatment history, which did not include any psychiatric hospitalizations. (R. 25).
Finally, the ALJ indicated that he gave little weight to Dr. Yohe's opinion because the doctor did
not explain his reasoning for concluding that plaintiff was unable to perform even routine, simple
entry-level work. (R. 25).
After reviewing the record, we conclude that the ALJ correctly determined Dr. Yohe's
restrictive opinion of plaintiff's mental work-related capabilities set forth on the form report is
inconsistent with his own treatment records. On the two occasions Dr. Yohe examined plaintiff
prior to issuing his opinion, Dr. Yohe' s mental status examinations were unremarkable. According
to Dr. Yohe, plaintiff was cooperative, outgoing, alert and oriented, his memory was intact, and his
affect was appropriate. (R. 303). Dr. Yohe found that plaintiff's though process, judgment and
insight, and attention and concentration all were within normal limits. (R.299-300). Dr. Yohe
reported that plaintiff felt his medication provided him stability, his anxiety decreased, his
depression improved and he no longer had problems with irritability. CR. 299, 302). In addition,
Dr. Yohe assessed plaintiff a OAF score of55, which indicates only moderate symptoms? (R. 303).

2The GAF scale has been used by mental health clinicians and physicians to rate subjectively the
social, occupational and psychological functioning of adults. A score between 5\-60 indicates that one
has moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate
difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or
co-workers). Diagnostic and Statistical Manual of Mental Disorders (4 th Ed. 2000). Although the latest
edition ofthe Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer includes the GAF
scale, see Brown v. Colvin, 2013 WL 6039018, at *7 n.3 (E.D. Wash. Nov. 14,2013) (noting that the GAF
scale was dropped from the DSM-5), it was not improper for the ALJ to consider the GAF score Dr. Yohe
assigned to plaintiff in connection with the ALJ's overall analysis of the doctor's opinion. See Markoch
v. Colvin, 2015 WL 2374260, at * 11 (M.D. Pa. May 18,2015) (rejecting the plaintiffs argument that the
ALJ erred in considering GAF scores and noting that the plaintiffs GAF scores were one relevant piece
ofevidence the ALJ considered in conjunction with the entire record). The ALJ ultimately detennined that

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While Dr. Yohe' s treatment notes reflect that plaintiff experiences some limitations from a mental
standpoint, they do not document the drastic limitations he identified on the form report. 3 For these
reasons, the court finds that there was no error in the ALJ's decision to assign little weight to Dr.
Yohe's opinion because it was inconsistent with his own treatment records and other evidence of
record summarized by the ALJ in his decision. (R.23-25).
Plaintiff next argues that it was improper for the ALJ to give some weight to the opinion of
the non-examining state agency psychologist, Dr. Erin Urbanowicz, who reviewed plaintiff's
records in March 2012 and determined that he had no more than moderate limitations in any mental
work-related area of functioning.

(R. 85-86), Plaintiff critiques the ALl's reliance upon Dr.

Urbanowicz's's opinion, arguing that she did not have the complete record to review, thus her
assessment is invalid.
Contrary to plaintiff's position, the Regulations specifY that state agency psychologists, such
as Dr. Urbanowicz, "are highly qualified. , , psychologists ... who are also experts in Social
Security disability evaluation. Therefore, administrative law judges must consider findings and
other opinions of State agency medical and psychological consultants ... as opinion evidence,
except for the ultimate determination about whether [a claimant is] disabled."

20 C.F.R.

§416.927(e)(2)(i). In addition, the Third Circuit has rejected plaintiffs argument that the lapse of
time between Dr. Urbanowicz's review and the subsequent administrative hearing made it

Dr. Yohe's opinion was entitled to little weight because it was inconsistent the GAF score, plaintiffs
treatment history and Dr. Yohe's treatment notes, which documented unremarkable examination findings.
(R.25).
3We note that the ALl's carefully crafted RFC Finding accounted for plaintiffs mental limitations
supported by the record by limiting plaintiff to understanding, remembering and carrying out simple
instructions and performing simple, routine tasks, precluding plaintiff from contact with the public,
restricting him to only occasional and superficial interaction with co-workers and only occasional
supervision, and limiting him to a low stress work environment with no production rate pace work and only
occasional and routine change in the work setting.
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inappropriate for the ALl to rely on the opinion. See Chandler v. Commissioner of Soc. Sec., 667
F.3d 356,361 (3d Cir. 2011) (recognizing that "[t]he Social Security regulations impose no limit
on how much time may pass between a report and the ALl's decision in reliance on it"). It is for
the ALl to determine whether subsequent medical evidence impacts the earlier findings. Id., citing
SSR 96-6p.
Here, the ALl recognized that Dr. Urbanowicz performed her review in March 2012, and
therefore was unable to review treatment records that were issued subsequent to that time.
Accordingly, the ALl only relied in part on Dr. Urbanowicz's assessment of plaintiffs mental
work-related capabilities in crafting the RFC Finding, but included additional restrictions to
accommodate plaintiff s other credibly established limitations supported by subsequent medical
evidence. (R. 22, 25). For these reasons, the ALl did not err in relying in part on Dr. Urbanowicz's
OpIniOn.

In conclusion, after carefully and methodically considering the medical evidence in this
case, the ALl determined that plaintiff is not disabled within the meaning of the Act. The ALl's
findings and conclusions are supported by substantial evidence and are not otherwise erroneous.
Therefore, the decision of the Acting Commissioner must be affirmed.

~~
Gustave Diamond
United States District ludge

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cc:

R. Christopher Brode, Esq.
Brode Law Finn
305 Walnut Street
Meadville, PA 16335
Christian A. Trabold
Assistant U.S. Attorney
17 South Park Row
RoomA330
Erie, PA 16501

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