FLOOK v. BERRYHILL

Filing 15

ORDER denying 10 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 9/27/2018. (lwp)

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

JOSHUA ALLEN FLOOK,

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) Civil Action No. 17-240-E
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Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY
Defendant.

ORDER
AND NOW, this 27th day of September, 2018, 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 disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. § 401 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. Sec’y 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, nor reverse,
merely because it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d
700, 705 (3d Cir. 1981)).1

Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by failing to provide
adequate explanation to support his finding that Plaintiff could perform sedentary work with
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additional limitations, resulting in a residual functional capacity (“RFC”) assessment not
supported by substantial evidence. More specifically, Plaintiff contends that, because the ALJ
failed to explain how Plaintiff could perform sedentary work without taking narcotic pain
medication, the Court cannot meaningfully evaluate whether the ALJ’s determination is
supported by substantial evidence, and remand is therefore required. The Court disagrees and
finds that substantial evidence supports the ALJ’s findings as well as his ultimate determination,
based on all the evidence presented, of Plaintiff’s non-disability.
A claimant’s RFC is the most that he or she can do despite his or her limitations. See 20
C.F.R. § 404.1545(a). The determination of a claimant’s RFC is solely within the province of
the ALJ. See 20 C.F.R. § 404.1527(d)(2). In formulating a claimant’s RFC, the ALJ must weigh
the evidence as a whole, including medical records, medical source opinions, a claimant’s
subjective complaints, and descriptions of his or her own limitations. See 20 C.F.R.
§§ 404.1527, 404.1529, 404.1545. In this case, after reviewing the relevant evidence of record,
the ALJ determined that, due to Plaintiff’s impairments, he was capable of performing work at a
sedentary exertional level, with several specific additional limitations. (R. 19). In reaching his
conclusions here regarding Plaintiff’s RFC, the ALJ reviewed and engaged in significant
discussion of the evidence of record, including medical evidence, opinion evidence, and
Plaintiff’s testimony. (R. 18-22).
However, Plaintiff claims that, in formulating his RFC, the ALJ failed to consider one
factor in particular, namely, that at the time of the ALJ’s decision, Plaintiff’s doctors had
recently tapered him off of his narcotic medication. The decision to change his medications was
made because Plaintiff had tested positive for heroin and certain prescription drugs that his
doctors had not prescribed, which voided his narcotic contract. (R. 851-52). Plaintiff argues,
quite simply, that in formulating his RFC the ALJ was required to determine whether Plaintiff
could perform sedentary work without the benefit of narcotic medication.
The Court finds Plaintiff’s claim to be without merit for several reasons. First, Plaintiff
bears the burden of producing evidence to establish his RFC, and Plaintiff has not pointed to any
evidence showing that his functionality decreased once his doctors stopped prescribing him
narcotic medication. See 20 C.F.R. § 404.1545(a)(3). The relevant medical evidence in the
record after this treatment change indicates that Plaintiff’s primary care provider agreed with the
plan to stop narcotics, and that Plaintiff received lumbar facet nerve block injections in October
2015. (R. 628, 855, 858-59). Such records do not, however, give any indication of a change in
Plaintiff’s functionality. Moreover, as the ALJ noted in his decision, Plaintiff’s own hearing
testimony in November 2015 indicated that the medications he was taking at that time helped his
pain and did not produce any bad side effects. (R. 20, 37). The Court notes that Plaintiff also
indicated in hearing testimony that the opiates he had been taking did not do “all that much . . . .
other than making it worse in the hypersensitivity from the, you know, being addicted to the pain
medication.” (R. 40). Additionally, Plaintiff discussed at the hearing his activities of daily
living, which continued to be extensive and which included washing and dressing himself,
helping get his children off to school, making himself food, doing dishes, cleaning and doing
laundry. (R. 21, 44-45). Thus, Plaintiff has not pointed to any evidence showing decreased
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functionality after his narcotic prescription ended, nor is any such evidence apparent to the Court
upon review of the record.
As an aside, the Court notes that although Plaintiff testified that he had become addicted
to his pain medication, his medical records show only that he tested positive for heroin and
prescription drugs which he had not been prescribed, in violation of his narcotic contract. (R. 40,
851-52). Additionally, the Court is aware that the ALJ commented that Plaintiff had tested
positive for various drugs including heroin, cocaine, fentanyl and oxycodone, when Plaintiff had
actually tested positive for heroin, codeine, fentanyl and oxycodone. (R. 851). The Court finds
this mistake to constitute merely a harmless error on the part of the ALJ as Plaintiff did test
positive for the other drugs mentioned, and his narcotic contract was in fact voided. Also,
although Plaintiff contends that the ALJ should not have used Plaintiff’s failed drug screen to
undermine his credibility, the Court notes that the ALJ did not place undue emphasis on this fact,
but properly listed the failed drug screen among Plaintiff’s other substance issues, including a
warning about marijuana use potentially voiding his opiate contract, and Plaintiff’s driver’s
license being suspended due to a “few” DUI charges. (R. 21).
Plaintiff further contends that, because of the change in his medications, the ALJ should
have disregarded the opinion of state agency medical consultant Juan B. Mari-Mayans, M.D.
from March 2014. (R. 61-69). Plaintiff argues that, because he was prescribed narcotic
medication when Dr. Mari-Mayans opined that Plaintiff was able to perform sedentary work, that
opinion was stale when the ALJ made his decision in January 2016 after he stopped taking
narcotic medication. However, the Third Circuit has noted that since a doctor’s opinion must
precede an ALJ’s opinion, “there is always some time lapse between the consultant’s report and
the ALJ hearing and decision,” and the “Social Security regulations impose no limit on how
much time may pass between a report and the ALJ’s reliance on it.” Chandler v. Comm’r of
Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). In any event, the ALJ specified that, while he gave
great weight to Dr. Mari-Mayans’ opinion, he noted that it was supported by later evidence
including treatment records, subsequent objective findings, and Plaintiff’s course of treatment,
all of which the ALJ discussed in his decision. (R. 22).
Thus, the Court finds that the ALJ did not fail to provide an adequate explanation for his
RFC finding that Plaintiff could perform sedentary work with additional limitations and, more
specifically, that the ALJ was not required to explain how Plaintiff could perform sedentary
work without taking narcotic pain medication.
Additionally, the Court notes that, even if—hypothetically—Plaintiff had produced
evidence showing that his functionality decreased after he stopped taking narcotic medication,
Plaintiff has not shown that his impairment could satisfy the Social Security regulations’ 12month durational requirement. The regulations define “disability” as “the inability to do any
substantial gainful activity by reason of any 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 not less than 12 months.” 20 C.F.R. § 404.1505(a). Plaintiff’s
narcotic medication tapering began in August 2015, and the ALJ issued his decision in this case
in January 2016, less than 5 months later. Plaintiff has thus failed to show that, based on his
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Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 10) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No.
12) is GRANTED.
s/ Alan N. Bloch
United States District Judge
ecf:

Counsel of record

narcotic prescription ending, he has had a disabling condition for a period of 12 months.
Moreover, Plaintiff also has not pointed to any evidence indicating that any decreased
functionality he has experienced should be expected to last 12 months into the future. Thus,
even if Plaintiff had been able to show deterioration in his functionality after he stopped taking
narcotic medication, he has failed to satisfy the 12-month durational requirement.
As to any additional arguments mentioned summarily by Plaintiff in his brief, the Court
finds that he has failed to establish how the ALJ’s alleged failure to consider properly any
additional evidence of record constitutes error.
Therefore, the Court finds Plaintiff’s argument that the ALJ erred by failing to provide
adequate explanation to support his finding that Plaintiff could perform sedentary work, resulting
in an RFC not supported by substantial evidence, to be without merit. Accordingly, the Court
affirms.
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