SPIESS v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION and ORDER denying 9 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/28/16. (hmg)

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

COLLEEN SPIESS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.

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Civil Action No. 15-107 Erie

AMBROSE, U.S. Senior District Judge
OPINION
AND
ORDER
I. Synopsis
Pending before the Court are cross-motions for summary judgment. ECF Nos. [9]
(Plaintiff) and [13] (Defendant). Both parties filed briefs in support of their motions. ECF Nos.
[10] (Plaintiff) and [14] (Defendant).1 The issues are now ripe for review. After careful
consideration of the submissions of the parties, and based on my Opinion as set forth below,
Defendant’s Motion, ECF No. [13], is granted and Plaintiff’s Motion, ECF No. [9] is denied.
II. Background
Plaintiff brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her applications for disability benefits pursuant to the
Social Security Act (“Act”). Plaintiff alleges disability beginning December 28, 2011. ECF No.

1

Although I granted Plaintiff’s Motion for Leave to File a Reply Brief, see Text Order at ECF No. 16, Plaintiff’s
counsel filed a Notice informing me that he decided not to file a Reply. ECF No. 17.

7-2, 13. After Plaintiff’s application was denied initially on September 7, 2012, she requested
that her application be reviewed by an Administrative Law Judge (“ALJ”). Id. On September
11, 2013, Plaintiff testified via video at a hearing before the ALJ. Id. On September 19, 2013,
the ALJ found Plaintiff not disabled under the Act. Id. at 19. After exhausting all administrative
remedies, Plaintiff filed the instant case.
III. 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 “[m]ore 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). While 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, a plaintiff must demonstrate that she 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. § 1382c(a)(3)(A).
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(a), 416.920(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, app. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent her from performing her past relevant work; and (5) if the claimant is incapable of
performing her past relevant work, whether she can perform any other work which exists in the
national economy, in light of her age, education, work experience, and residual functional
capacity.

20 C.F.R. §§ 404.1520, 416.920.

A Claimant carries the initial burden of

demonstrating by medical evidence that she is unable to return to her 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. Plaintiff’s Motion
1. Whether the ALJ Erred in Finding Plaintiff is Capable of Performing Past Relevant
Work

Plaintiff argues that the ALJ’s determination at Step 4 that Plaintiff can perform her past
relevant work as a housekeeper is not supported by substantial evidence. ECF No. 10, 3-6. In
support, Plaintiff argues that the ALJ’s questioning of Plaintiff was vague and is thus
unreviewable and that the work required of a housekeeper exceeds the ALJ’s RFC determination
for Plaintiff. Id. 3-6.
At Step 4, an ALJ must determine a claimant’s Residual Functional Capacity (“RFC”),
20 C.F.R. §§ 404.1520(e), 416.920(e), and then consider whether the claimant retains the RFC to
perform her past relevant work. Id. at §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “ ‘Residual
Functional Capacity is defined as that which an individual is still able to do despite the
limitations caused by his or her impairment(s).’ ” Fargnoli v. Massanari, 247 F.3d 34, 40 (3d
Cir. 2001) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 12, 121 (3d Cir. 2000)) (citations
omitted); 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (RFC determination is an assessment of the
most an individual can do given his limitations); see also SSR 96-8p.

In determining a

claimant’s RFC, an ALJ is required to consider all of the evidence before him, including the
medical evidence, a claimant’s subjective complaints, and evidence of the complainant’s activity
level. Burnett, 220 F.3d at 121 (citations omitted); Fargnoli, 247 F.3d at 41. Past relevant work
is work done by the claimant within the last 15 years, that was substantial gainful activity
(“SGA”), and that lasted long enough such that the claimant could learn to do the work. 20
C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). In determining whether a claimant can do her past
relevant work, an ALJ must decide whether a person with the claimant’s limitations “can meet
the demands of the claimant’s previous work, either as the claimant actually performed it or as
generally performed in the national economy.” Id. at §§ 404.1560(b)(2), 416.960(b)(2); see also
S.S.R. 82-61 & 82-62.

Here, the ALJ found Plaintiff has the RFC “to perform a full range of work at all
exertional levels but with the following nonexertional limitations: she cannot tolerate frequent
interaction with the public.” ECF No. 7-2, 17. The ALJ explained his reasons underlying the
RFC determination including, inter alia, the fact that Plaintiff’s anxiety and depression improved
with therapy and medication, the opinion of Dr. Rhinehart, the consultative psychologist, who
found that Plaintiff is mildly impaired when it comes to interacting appropriately with others,
and Plaintiff’s testimony that she has difficulty relating to others. Id. at 17-18. After concluding
that Plaintiff is capable of performing work that does not require frequent interaction with the
public, the ALJ compared Plaintiff’s RFC with the physical and mental demands of Plaintiff’s
past relevant work as a hotel housekeeper, and found Plaintiff could perform the work as it is
actually and generally performed because that job “did not require interaction with the public.”
Id. at 19. In his RFC determination, the ALJ explained: “The claimant reported that she did not
have much contact with others when she worked as a housekeeper. She was given a list of
rooms to clean and did that independently.” Id. at 18.
Having reviewed the ALJ’s reasons for his RFC decision and the testimony and evidence
of record, I find substantial evidence supports the ALJ’s determination. I further find that
substantial evidence supports the ALJ’s finding that Plaintiff is capable of performing her past
relevant work. Although Plaintiff submits that the hearing testimony relied on by the ALJ is
vague and does not clearly address whether Plaintiff’s job as a housekeeper involved public
contact, I disagree. At the hearing, the ALJ asked Plaintiff: “Now you said you have difficulty
getting along with people? In your job as a housekeeper at a hotel, did you have frequent contact
with people, or did you work pretty much independently?”

ECF No. 7-2, 36.

Plaintiff

responded: “I worked pretty much independently. They’d text, gave you a list of rooms to go

clean.” Id. This evidence is not misrepresented by the ALJ, and I find that he properly relied on
it in his determination that Plaintiff is capable of performing her past work as a hotel
housekeeper because the work, as described by Plaintiff, does not involve frequent interaction
with the public.2,3
2. Whether the ALJ Erred in Evaluating the Opinion of Kimberly Ann Ditz, CRNP
Plaintiff argues the ALJ erred in giving limited weight to the opinion of Kimberly Ann
Ditz, CRPN, the family psychiatric and mental health nurse practitioner at The Guidance Center
who started treating Plaintiff in June 2012. ECF No. 10, 6-10.
Regardless of the source, an ALJ must evaluate every medical opinion received, state the
weight he assigns the opinion, and articulate his reasons. 20 C.F.R. §§ 404.1527(c), 416.927(c).
Generally, an ALJ will give more weight to the opinion of a source who has examined the
claimant than to a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). When weighing
medical opinions, an ALJ should consider all of the following factors: the examining
relationship, the treatment relationship (the length of the treatment relationship and the frequency
of examinations as well as the nature and extent of the treatment relationship), supportability,
consistency, specialization and other factors brought to the ALJ’s attention or which tend to
support or contradict an opinion. Id. §§ 404.1527(c), 416.927(c). “[T]he more consistent an
opinion is with the record as a whole, the more weight [an ALJ generally] will give to that
opinion.” Id. § 404.1527(c)(4), 416.927(c)(4). In the event of conflicting medical evidence, the
Court of Appeals for the Third Circuit has explained:
2

I disagree with Plaintiff’s assertion that the DOT states that “rendering personal assistance to patrons is one of the
chief responsibilities of the housekeeper job.” ECF No. 10, 5 (emphasis added). Nothing in the description elevates
the
task
of
“assisting
patrons”
to
a
primary
housekeeper
responsibility.
See
http://www.occupationalinfo.org/32/323687014.html.
3
Because I find the ALJ did not err in his Step 4 determination that Plaintiff is capable of performing her past
relevant work, the ALJ was not required to proceed to Step 5 and solicit testimony from a Vocational Expert (“VE”)
to show Plaintiff’s ability to adjust to other work that exists in significant numbers in the national economy, as
suggested by Plaintiff in her request for remand. See ECF No. 10, 6.

“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, nonexamining 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. Comm’r of Soc. Sec. Admin., No. 10-2517, 2010 WL 5078238, at *5 (3d Cir. Dec. 14,
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).
An ALJ must set forth his reasons for crediting or discrediting relevant or pertinent
medical evidence. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121-22 (3d Cir. 2000).
“Although the ALJ ‘may properly accept some parts of the medical evidence and reject other
parts . . . he must consider all of the evidence and give some reason for discounting the evidence
he rejects.’ ” Lanza v. Astrue, No. 08-301, 2009 WL 1147911, at *7 (W.D. Pa. Apr. 28, 2009)
(quoting Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)). “In the absence of such an
indication, the reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.’ ” Burnett, 220 F.3d at 121-22 (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d
Cir. 1981)).
A nurse practitioner is not an acceptable medical source entitled to controlling weight.
20 C.F.R §§ 404.1513(d), 416.913(d); see also S.S.R. 06-03p. Nurse practitioners are
categorized as “Other Sources.”

Id.

Opinions from “other sources,” if accepted, “cannot

establish the existence of a medically determinable impairment . . . [but] may provide insight into

the severity of the impairment(s) and how it affects the individual’s ability to function.” S.S.R.
06-03p; see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361-62 (3d Cir. 2011);
Hartanft v. Apfel, 181 F.3d 358, 361 (3d Cir. 1999). Accordingly, an ALJ should weigh this
evidence along with the rest of the evidence, using the same factors that guide an ALJ’s review
of acceptable medical source opinions. S.S.R. 06-03p; see also 20 C.F.R. §§ 404.1527(c),
416.927(c) (the general factors used to evaluate medical opinions are listed infra).
Here, the ALJ assigned “some weight” to the opinion of Ms. Ditz. ECF No. 7-2, 18. The
ALJ found: “Ms. Ditz’ characterization of the claimant’s social limitations as marked appears to
be exaggerated, especially when considering the minimal mental status findings and reported
improvement and good functioning in progress notes.” ECF No. 7-2, 18. After a review of the
record, I find substantial evidence supports the ALJ’s stated reasons. See, e.g., ECF No. 7-7, 1012; 29-31; & 48-49 (Ms. Ditz’s treatment notes show improvements with therapy and medication
and conflict with her opinion that Plaintiff has marked difficulties in maintaining social
functioning); see also Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (an ALJ can give
more or less weight to the diagnosis depending upon supporting explanations and consistency
with other substantial evidence of record); Smith v. Astrue, 359 F. App’x 313, 316 (3d Cir. 2009)
(citing Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) and finding checklist form reports,
like the ones completed by Ms. Ditz in this case, are “weak evidence at best”). Furthermore,
ultimate questions of disability are reserved for the ALJ to determine.

20 C.F.R. §§

404.1527(e)(2)(i), 416.927(e)(2)(i). Accordingly, I find no error in this regard.
IV. Conclusion
Based on the evidence of record and the briefs filed in support thereof, I find there is
substantial evidence to support the ALJ’s conclusion that Plaintiff is not disabled within the

meaning of the Social Security Act.

As a result, I deny Plaintiff’s motion for summary

judgment, and I grant Defendant’s motion for summary judgment.
An appropriate Order follows.

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

COLLEEN SPIESS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.

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Civil Action No. 15-107 Erie

AMBROSE, U.S. Senior District Judge
ORDER
AND NOW, this 28th day of January, 2016, after careful consideration of the
submissions of the parties and for the reasons set forth in the Opinion accompanying this Order,
it is Ordered that Plaintiff’s Motion for Summary Judgment (ECF No. [9]) is DENIED and
Defendant’s Motion for Summary Judgment (ECF No. [13]) is GRANTED.

BY THE COURT:

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