TROUT v. ASTRUE

Filing 15

MEMORANDUM JUDGMENT ORDER denying 7 plaintiff's Motion for Summary Judgment and granting 13 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/19/11. (kw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL L. TROUT,
Plaintiff,

v.
Civil Action No. 10-756
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND

NOW,

this

September,

2011,

upon

due

consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner

of

Social

Security

("Commissioner" )

denying

his

application for disability insurance benefits ("DIB") under Title
II of the Social Security Act

("Act"),

IT IS ORDERED that the

Commissioner's motion for summary judgment (Document No. 13) be,
and the same hereby is, granted and plaintiff's motion for summary
judgment (Document No.7) 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 rej ect or discount
reasons for doing so.
Cir. 1999).
substantial

'Aon
(Rev. 8/82)

findings,

any evidence

if

the ALJ explains

the

Plummer v. Apfel,

186 F.3d 422, 429

(3d

Where the ALJ's findings of fact are supported by
evidence,

even if

it

a

reviewing

would have

court

is

bound

by

decided

the

factual

those

inquiry

differently.
2001).

Fargnoli v.

Moreover,

Massanari,

disability

is

not

247 F.3d 34,
determined

38

(3d Cir.

merely by

the

presence of impairments, 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 ALJ's decision here because the record contains substantial
evidence to support the ALJ's findings and conclusions.
Plaintiff filed an application for DIB on September 14, 2006,
alleging
traumatic
migraine

disability beginning
stress

disorder,

headaches,

January

asthma,

depression,

I,

2006,

sleep

apnea,

arthritis

Plaintiff's application was denied.

and

due

to

acid
joint

post-

reflux,
pain.

At plaintiff's request, an

ALJ held a hearing on April 23, 2008, at which plaintiff appeared
represented by counsel.

During the hearing, plaintiff amended his

alleged onset date of disability to September 30, 2006, because he
had last worked in September 2006, and he had earned approximately
$9,500 that year.
On May 15,

(R.25).
2008,

the ALJ issued a

plaintiff is not disabled.

The Appeals Council denied plaintiff's

request for review on April IS,
the

final

decision of

decision finding that

the

2010, making the ALJ's decision

Commissioner.

The

instant

action

followed.
Plaintiff was 36 years old as of his amended alleged onset
date of disability and is classified as a younger individual under
the regulations.

20 C.F.R. §404.1563(c}.

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Plaintiff earned two

Master's Degrees and has past relevant work experience as a mail
carrier,

clerk and counselor.

However,

he has not engaged in

substantial gainful activity at any time since his amended alleged
onset date of disability.
After

reviewing

plaintiff's

medical

records

and

hearing

testimony from plaintiff and a vocational expert at the hearing,
the

ALJ concluded

meaning of the Act.

that

plaintiff

is

not

disabled wi thin

the

The ALJ found that plaintiff suffers from the

severe impairments of attention deficit hyperactivity disorder,
post-traumatic stress disorder, depression,

asthma,

sleep apnea

and osteoarthritis of the knees, but those impairments, alone or
in combination, do not meet or equal the criteria of any of the
1

ted impairments set forth in Appendix 1 of 20 C.F.R., Subpart

P, Regulation No.4

("Appendix 1") .

The ALJ found that plaintiff retains the residual functional
capacity to perform a range of light work with a number of other
limitations.
gases

and

Plaintiff must avoid exposure to fumes,

temperature

and

humidity

extremes.

In

dust and
addition,

plaintiff is limited to work that involves simple instructions and
simple decision making, and he cannot perform work at an assembly
line

pace.

Finally,

plaintiff

is

restricted

from work

that

involves intensive supervision, he must avoid interaction with the
general public,

and he cannot have close interaction with co­

workers (collectively, the "RFC Finding") .
As a result of these limitations,

the ALJ determined that

plaintiff could not perform his past relevant work.
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However,

based upon the vocational expert's testimony,

the ALJ concluded

that plaintiff's age, educational background, work experience and
residual

functional

capacity enable

him to make

a

vocational

adjustment to other work that exists in significant numbers in the
national economy t

such as a

sorter t

marker or order caller.

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. §423(d) (1) (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. §423 (d) (2) (A) .
The Commissioner has promulgated regulations that incorporate

a five-step sequential evaluation process for determining whether
a claimant is disabled.

The ALJ must determine:

(1) whether the

claimant is currently engaged in substantial gainful activity; (2)
if not t whether he has a severe impairment; (3) if so, whether his
impairment meets or equals the criteria listed in Appendix Ii
if

not,

whether

the

claimant's

impairment

performing his past relevant work;

and

(5)

prevents
if so,

him

(4)

from

whether the

claimant can perform any other work that exists in the national
economy,

in light of his age

I

education,

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(Rev. 8/82)

4 ­

work experience and

residual functional capacity.

20 C.F.R. §404.1520(a) (4).

If the

claimant is found disabled or not disabled at any step, further
inquiry is unnecessary.

Id.

In this case, plaintiff challenges the ALJ's findings at step
5

of

the

sequent

Commissioner

must

evaluation
show

there

process.

are

other

At
jobs

step
that

5,
st

the
in

significant numbers in the national economy which the claimant can
perform consistent with his age, education, past work experience
and residual functional capacity.

20 C.F.R.

Residual

defined

functional

capacity

is

§404.1520(g) (1).

as

that

which

an

individual still is able to do despite the limitations caused by
his impairments.
40.

20 C.F.R. §404.1545(a) (1)

i

Fargnoli, 247 F.3d at

In assessing a claimant's residual functional capacity, the

ALJ is required to consider the claimant's ability to meet certain
demands of

jobs,

requirements.

such as physical,

mental,

sensory and other

20 C.F.R. §404.1545(a) (4).

Here, plaintiff argues that the ALJ erred at step 5 because
he did not give substantial weight to the determination by the
Department of Veterans Affairs ("VA") that he is disabled. l
81 83).

(R.

This argument is without merit.

A determination made by another agency regarding disability
is not binding on the Commissioner of Soc

Security.

The Social

lDuring plaintiff's military service in the Gulf War, his
barracks were destroyed by a missile.
Many individuals were
killed in the attacked and plaintiff sustained injury to his knees
and back. (R. 281-82). According to plaintiff, he has difficulty
coping with stress as a result of that
ident.
(R. 282).
"AO 72
(Rev 8/82)

- 5 ­

Security Regulations provide that:
A decision by any nongovernmental agency or any other
governmental agency about whether [the claimant is] disabled
or blind is based on its rules and is not our decision about
whether [the claimant is] disabled or blind. We must make a
disability or blindness determination based on social
securi ty law. Therefore
a determination made by another
agency that [a claimant is] disabled or blind is not binding
on us.
I

20 C.F.R. §404.1504; see also Gifford v. Barnhart
705

1

707 (3d Cir. 2005)

not

binding

I

129 Fed. Appx.

(recognizing that an ALJ is not bound by

a determination by the Pennsylvania Workers
Al though

I

"a

I

Compensation Bureau) .

determination by

agency is entitled to substantial weight."
F.2d 1130, 1135 (3d Cir. 1985).

another

government

Kane v. Heckler

l

776

"If the ALJ reaches a contrary

conclusion, the ALJ must offer an explanation of why he rejected
the other agency's finding."

Sell v. Barnhart, 2003 WL 22794702,

at *3 (E.D. Pa. Nov. 17, 2003)

(citing Lewis v. Califano

l

616 F.2d

73,76 (3dCir. 1980)).
Here

l

the ALJ addressed the VA's determination that plaintiff

is disabled,

noted that he was not bound by that finding

explained why he rejected the VA/S disability determination.
14-16).

l

and
(R.

In so doing, the ALJ thoroughly considered the opinion of

Dr. Barry Fisher, who was plaintiff/s treating psychiatrist at the
VA hospital

l

and who found that plaintiff was disabled because of

his post-traumatic stress disorder.
that Dr. Fisher's opinion

l

upon which the VA/S determination of

'IIl.A072
(Rev. 8/82)

The ALJ properly determined

- 6 ­

disability was based, was not entitled to controlling weight. 2
Dr. Fisher completed two functional capacity assessments
indicating that plaintiff was unable to meet competitive standards
in numerous categories required for skilled and unskilled work.
(R. 412-13, 416-17).

However, Dr. Fisher's own treatment notes

contradict such serious limitations,

as he consistently rated

plaintiff's Global Assessment of Functioning ("GAF") score between
55-60,

(R.

324,

330,

332,

410,

414,

431,

433,

443),

which

indicates only moderate symptoms or moderate difficulty in social
or occupational functioning. 3 As the ALJ correctly observed, such
a rating is inconsistent with Dr. Fisher's opinion that plaintiff
is disabled.
Further, Dr. Fisher's opinion of disability is contradicted
by plaintiff's activities of daily living.

Plaintiff volunteers

at his church teaching religious classes and helping the homeless,
he

assists

with

home-schooling

his

children,

he

practices

2A 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.
§404.1527(d} (2).
For reasons explained herein, Dr. Fisher's
opinion fails to meet this standard.
3The GAF scale,
designed by the American Psychiatric
Association, is used by clinicians to report an individual's
overall level of mental functioning.
The GAF scale considers
psychological,
social
and
occupational
functioning
on
a
hypothetical continuum of mental health to illness. The highest
possible score is 100 and the lowest is 1. A score between 51 and
60
indicates
moderate
symptoms
(e.g.,
flat
affect
and
circumstantial speech, occasional panic attacks) or any 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).
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Taekwondo, and he assists with household chores such as taking out
the trash,

cooking,

vacuuming,

cleaning,

mowing the grass and

laundry.
Finally,

Dr.

Fisher's opinion that plaintiff

is disabled

conflicts with the results of Dr. Stanley Nadulek's consultative
psychological evaluation of plaintiff.

Dr.

Nadulek found that

plaintiff "seem [edJ normal from the perspective of productivity,
relevance

and coherence",

coherent

well

I

organized

(R.
and

285),

his

relevant,

thoughts
he

was

were

able

clear,
to

form

concepts well, had good common sense, did not have any difficulty
with recent or past memory, had fair judgment, and had emotional
reactions that were relevant to the situation.

(R. 285-87).

Dr.

Nadulek concluded that plaintiff's impairment did not affect his
ability to understand, remember and carry out instructions, and he
had

only

moderate

limitations

in

his

ability

to

interact

appropriately with others and to respond appropriately to work
pressures and changes. 4

(R. 289).

4The ALJ indicated that he gave great weight to Dr. Nadulek's
examination findings and functional assessment. (R. 15). Despite
Dr. Nadulek's benign examination findings and assessment that
plaintiff had only moderate functional limitations in interacting
with others and responding appropriately to certain work
situations, he inexplicably noted at the end of his report that it
would be extremely difficult for plaintiff to be gainfully
employed.
(R. 288). The ALJ addressed Dr. Nadulek's inconsistent
conclusion by stating that plaintiff's moderate limitations were
appropriately accounted for in the RFC Finding.
(R. 15).
The
court agrees that the ALJ accounted for plaintiff's moderate
limitations
in
interacting
with
others
and
responding
appropriately to certain work situations by restricting him to
work involving simple decision making and simple instructions and
precluding him from intensive supervision, close interaction with
co-workers and any interaction with the general public.
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In sum, the ALJ considered the disability determination by
the

VA

and

Dr.

Fisher,

but

properly

concluded

that

determination was not entitled to controlling weight.

such

The ALJ

fully explained why he rejected the VA's disability determination,
and this court finds his decision is supported by substantial
evidence.
After

carefully

and

methodically

considering all

medical evidence of record and plaintiff's testimony,

of

the

the ALJ

determined that plaintiff is not disabled within the meaning of
the Act.
substantial

The ALJ's findings and conclusions are supported by
evidence

and

are

not

otherwise

erroneous.

Accordingly, the decision of the Commissioner must be affirmed.

~amo~

United States District Judge

cc: Kelie C. Schneider, Esq.
Robert Peirce & Associates, P.C.
707 Grant Street, 2500 Gulf Tower
Pittsburgh, PA 15219
Michael Colville

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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