MYSNYK v. COLVIN

Filing 13

ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/2/2017. (lwp)

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

DORIS MAY MYSNYK,

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) Civil Action No. 15-269-E
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Plaintiff,
v.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER
AND NOW, this 2nd day of March, 2017, 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. Dep’t of Health & Human Servs., 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 evidence,

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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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Plaintiff argues, in essence, that the residual functional capacity assessment (“RFC”) as
formulated by the Administrative Law Judge (“ALJ”) in this case is not based on substantial
evidence because: 1) the ALJ did not adequately evaluate Plaintiff’s mental impairment by
considering the impact of her mental illness on her ability to comply with treatment; and 2) the
ALJ did not properly consider the opinion of Plaintiff’s treating physician in formulating his
RFC. The Court disagrees and finds that substantial evidence supports the ALJ’s findings as
well as his ultimate determination of Plaintiff’s non-disability.
First, the Court rejects Plaintiff’s claim that the ALJ’s RFC is not based on substantial
evidence because he did not properly evaluate Plaintiff’s mental impairment. More
specifically, the Court finds that the ALJ did not err in failing to find that Plaintiff’s mental
illness caused her non-compliance with her treatment regimen. Upon close review of the
record, the Court finds that the ALJ thoroughly discussed and analyzed Plaintiff’s treatment
history, including her evaluations during times of compliance and non-compliance with her
treatment regimen, as well as during periods when she was experiencing external stressors. The
Court also finds that the ALJ did not err in concluding that Plaintiff’s credibility with regard to
her alleged limitations was diminished by her periods of non-compliance, the reports of her
doing well when she was compliant, and evidence of her drug and alcohol use. (R. 26).
For example, the ALJ noted that, beginning in January 2012, Plaintiff started treatment
with Dr. Craig Rush, D.O., and that, because Plaintiff was eight months pregnant at the time, the
doctor recommended that she wait until the birth of her child to begin treatment. (R. 24).
Nevertheless, Plaintiff’s mental status findings were fairly normal at that time and she was
assigned a GAF score of 62. (R. 24). A few months later, Dr. Rush noted that Plaintiff was
exhibiting angry, poor, irritable behavior, depressed and angry mood, and a mildly elevated
anxiety state. (R. 24). As the ALJ explained, “After restarting medication, she had poor
behavior, anxious mood, mildly elevated anxiety state, and blunted affect, but her motor activity,
speech, sensorium, thought content, and thought flow were within normal limits.” (R. 24).
The doctor further noted, however, that Plaintiff’s husband had recently been arrested and her
children had been removed from her home, and that her Lithium levels had not yet been checked.
(R. 24). Plaintiff’s Lithium dosage was increased, and she had a completely normal mental
status examination at her next visit with Dr. Rush. (R. 24). Nevertheless, Plaintiff’s
symptoms reappeared at the following visit when she reported having stopped her medications
two months earlier because she did not like the way they had made her feel. (R. 24). The
following month, Plaintiff reported having stopped taking her Seroquel, and although her motor
activity, speech, sensorium, behavior, thought content, and thought flow all remained within
normal limits, her mental status examination indicated anxious mood, mildly elevated anxiety
state, and anxious affect. (R. 25). In October 2012, Plaintiff’s examination again revealed
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various problems, including anxious, angry mood and mildly elevated anxiety state, but she also
tested positive for suboxone, hydrocodone, codeine and cocaine. (R. 25). Plaintiff had a
normal examination at her next visit (other than anxious mood, affect that was “a little hyper,”
and mildly pressured speech), and she also had a completely normal mental status evaluation at
her examination in March 2013 after having started Gabapentin. (R. 25). Again, Plaintiff’s
mental status examination remained normal in May 2013, and Dr. Sean Su, M.D., assigned her a
GAF score of 62. (R. 25). Plaintiff then had mostly normal findings in July and September
2013, except for “tearful periods when she talked about going to jail and not being able to find a
job.” (R. 25). In December 2013, Dr. Su examined Plaintiff again and found that, although
she had anxious and labile affect and fluctuating mood, she had coherent and goal-directed
speech and showed no signs of markedly bizarre delusional thinking or significant obsessions or
compulsions. (R. 25).
In his decision, the ALJ noted that Plaintiff’s treatment history is relatively conservative.
(R. 26). He explained that Plaintiff had never been hospitalized, and he listed in detail the
medications Plaintiff had been prescribed, including the circumstances surrounding the
prescriptions and Plaintiff’s periods of compliance and non-compliance with her treatment
regimen. (R. 26). The ALJ stated that Plaintiff had indicated that her activities of daily living
were intact, and she reported improvement after starting, and then adjusting, her medication.
(R. 25). The ALJ also noted that Dr. Ryan Kobylinski, D.O., had recommended that Plaintiff
attend Alcoholics Anonymous or Narcotics Anonymous, and that the doctor had indicated that he
would consider starting Plaintiff on a mood stabilizer or antidepressant after a negative drug
screen and period of abstinence. (R. 26).
Thus, the ALJ concluded that Plaintiff’s “treatment history shows that during periods of
non-compliance and/or increased stress, her subjective complaints and mental status examination
findings reflect an exacerbation of mood disturbance, but do not show symptoms of psychosis or
disturbance of thought process.” (R. 26). The ALJ further noted that Plaintiff “responds well
to medication when she is compliant,” and that when compliant, Plaintiff “reported doing well,
and demonstrated completely normal mental status.” (R. 26). Moreover, the ALJ found that
Plaintiff’s credibility as to her alleged limitations “is undermined by the normal mental status
examination findings, the reports of doing well when she is compliant, the periods of
non-compliance with frequent discontinuing of medication on her own,” along with drug and
alcohol use which was demonstrated in her urine drug screen. (R. 26).
Moreover, nowhere in the record is there any indication that Plaintiff’s failure to take her
medication was due to her mental limitations. Rather, the ALJ’s decision and a review of the
records indicate that Plaintiff was not complying with treatment for various reasons, including
that she did not like the way medication made her feel, that she had changes of insurance, and
that she had run out of her medication. (R. 26). Plaintiff cites no authority to support the
suggestion that her non-compliance was due to mental issues, but instead merely speculates that
this was the case. Quite simply, the medical records, as discussed in great detail by the ALJ, do
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not support any such argument. In fact, the Court finds that, in making his RFC assessment, the
ALJ thoroughly discussed the evidence in the record, particularly Plaintiff’s treatment history.
The Court concludes that, upon careful review of the record and the ALJ’s decision, substantial
evidence supports the ALJ’s evaluation of Plaintiff’s credibility and the ALJ’s RFC as a whole.
Second, Plaintiff argues that the ALJ’s decision is not supported by substantial evidence
because he gave “little” weight to the opinion of Plaintiff’s treating psychiatrist without
providing adequate discussion for having done so, and because he could point to no other
physician opinion finding that Plaintiff was capable of performing work. Plaintiff’s argument
appears to be based, at least in part, on a mistaken understanding of the decision issued by the
Court of Appeals for the Third Circuit in Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986). As this
Court explained in Doty v. Colvin, 2014 WL 29036 (W.D. Pa. Jan. 2, 2014), and in various other
recent decisions, the Doak opinion does not hold that an ALJ’s RFC findings must be based on a
specific medical opinion. Rather, the Court of Appeals in Doak held that nothing in the record
of that case supported the finding by the ALJ that the plaintiff could perform certain work. The
Court of Appeals in Doak never suggested that a finding of ability to perform certain work could
only be made if an opinion in the record had clearly stated that the claimant could perform such
work.
Additionally, it is well-established that “[t]he ALJ—not treating or examining physicians
or State agency consultants—must make the ultimate disability and RFC determinations.”
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); see also 20 C.F.R.
§§ 416.927(d)(2), 416.946(c); S.S.R. 96-5p, 1996 WL 374183 (S.S.A. 1996). “There is no legal
requirement that a physician [must] have made the particular findings that an ALJ adopts in the
course of determining an RFC.” Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006);
see also Chandler, 667 F.3d at 362 (holding that every fact incorporated into an RFC does not have
to have been found by a medical expert). In fact, the Circuit Court in Titterington clearly noted
that “[s]urveying the medical evidence to craft an RFC is part of the ALJ’s duties.” 174 Fed.
Appx. at 11. Doak thus does not prohibit the ALJ from making an RFC assessment if no doctor
has specifically made the same findings. See Hayes v. Astrue, 2007 WL 4456119, at *2 (E.D. Pa.
Dec. 17, 2007). Furthermore, an RFC is properly based on all of the relevant evidence in the
case record. See 20 C.F.R. § 416.945. An ALJ is not limited to choosing between competing
opinions in the record, and may instead develop his own. See 20 C.F.R. § 416.946(c).
Therefore, the ALJ is not required to rely only on a particular physician’s opinion, and the RFC
finding is actually an administrative—rather than a medical—determination. See 96-5p, 1996
WL 374183, *5.
In this case, the Court finds that the ALJ thoroughly discussed the evidence in the record
and clearly explained his reasons for giving Dr. Su’s opinion “little” weight in formulating
Plaintiff’s RFC. Specifically, after describing the various limitations that Dr. Su found with
regard to Plaintiff, the ALJ explained that those limitations are “contradicted” by Plaintiff’s
normal mental status examinations (which were discussed in his decision at great length) and by
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for Summary
Judgment (Doc. No. 9) is DENIED and Defendant=s Motion for Summary Judgment (Doc.
No. 11) is GRANTED.
s/ Alan N. Bloch
United States District Judge
ecf: Counsel of record

Plaintiff’s relatively high GAF scores, including a GAF score of 62 assessed by Dr. Su himself in
2013. (R. 27). The Court also finds that the ALJ did not err in giving “some” weight to the
opinion of the State agency medical consultant because that consultant had not had the
opportunity to review Dr. Su’s functional capacity assessment. See Chandler, 667 F.3d at 361
(noting that there is always a time lapse between a consultant’s report and an ALJ’s decision, and
that the “regulations impose no limit on how much time may pass between a report and the
ALJ’s decision in reliance on it”). The Court notes, further, that the agency consultant’s report
(which found that Plaintiff could perform simple, routine, repetitive tasks) does not demonstrate
greater limitations than those found by the ALJ. (R. 83-85).
Based on the evidence of record, therefore, the Court finds that the ALJ thoroughly
discussed his consideration of all the relevant evidence—including Plaintiff’s course of medical
treatment and the medical opinion evidence—and made an appropriate RFC determination,
which includes various limitations stemming from Plaintiff’s impairments. The Court thus
finds that substantial evidence supports the ALJ’s ultimate determination that Plaintiff retains the
ability to perform work consistent with his RFC finding. Accordingly, the Court affirms.
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