VAN MOOK v. ASTRUE
Filing
9
MEMORANDUM JUDGMENT ORDER denying 5 Plaintiff's Motion for Summary Judgment and granting 7 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 8/31/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALEXANDER VAN MOOK,
Plaintiff,
v.
Civil Action No. 10-876
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
311t-
day
of
August,
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
plaintiff's application for supplemental security income
(SSI)
under Title XVI of the Social Security Act ("Act"), IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
7) be, and the same hereby is, granted and plaintiff's motion for
summary judgment
(Document No.5)
be,
and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge (IIALJ") has an
obligation to weigh all of the facts and evidence of record and
may reject
or discount
reasons for doing so.
'A072
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Cir.
1999) .
any evidence
if
Plummer v. Apfel,
the ALJ
explains
186 F.3d 422,
429
the
(3d
Where the ALJ's findings of fact are supported by
substantial
findings,
evidence,
even
differently.
2001).
if
it
a
reviewing
would
Fargnoli v.
have
court
decided
Massanari,
is
bound
the
factual
247 F.3d 34,
by
38
those
inquiry
(3d Cir.
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 protectively filed his application for 88I on June
5, 2006, alleging a disability onset date of February 19, 1990,
due to autism, stress and depression.
denied initially.
Plaintiff's application was
At plaintiff's request, an ALJ held a hearing
on April 3, 2008, at which plaintiff, represented by counsel, and
plaintiff's mother appeared and testified.
On April 11, 2008, the
ALJ issued a decision finding plaintiff not disabled.
On May 12,
2010, the Appeals Council denied review making the ALJ's decision
the final decision of the Commissioner.
Plaintiff was 24 years old at the time of the ALJ's decision
and is classified as a younger individual under the regulations.
20 C.F.R. §416.963{c).
C.F.R. §416.964{b) (4).
Plaintiff has a high school education.
20
He has no past relevant work experience
and he has not engaged in any substantial gainful activity since
the date his application was filed.
After
testimony
reviewing
from
plaintif f' s
plaintiff
and
a
medical
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that although the medical evidence establishes
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that plaintiff suffers from the severe impairment of autism, he
does not have an impairment or combination of impairments that
meets or medically equals the criteria of any impairment listed at
Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacity to perform work at all exertional levels but
with
certain
non-exertional
restrictions
limiting effects of his impairment. 1
resulting
from
the
Relying on the testimony of
a vocational expert, the ALJ concluded that plaintiff retains the
residual
functional
capacity
to
perform
jobs
existing
in
significant numbers in the national economy, such as hand packer,
vehicle washer and assembler.
Accordingly,
the ALJ determined
that plaintiff is not disabled within the meaning of the Act.
The Act defines "disabilityll as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which 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
II
42 U.S.C. §1382c (a) (3) (B) .
1
Specifically, the ALJ found that plaintiff "is limited to
the performance of simple, repetitive tasks that do not require
dealing with the general public or maintaining close interaction
with coworkers.
In addition, the ALJ found that plaintiff
"should not be required to perform mathematical tasks without a
calculator." (R. 13).
II
II!\l;.A072
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3
The Commissioner has promulgated regulations incorporating a
five-step sequential evaluation process for determining whether a
claimant is under a disability.2
20 C.F.R.
§416.920; Newell v.
Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).
If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further.
Id.; see Barnhart v. Thomas,
124 S.Ct. 376 (2003).
Here,
plaintiff essentially raises
ALJ's finding of not disabled:
finding
that
specifically,
plaintiff
depression,
functioning; and,
medical
two challenges to the
(1) the ALJ erred at step 2 by not
has
additional
anxiety
and
severe
borderline
impairments,
intellectual
(2) the ALJ erred at step 5 in evaluating the
evidence by accepting
the
opinion of
a
non-examining
agency physician over that of the consultative examiner and by
misinterpreting other medical evidence.
satisfied
that
all
of
the
ALJ's
Upon review, the court is
findings
are
supported
by
substantial evidence.
I!!lt,Aon
(Rev. 8/82)
2
The ALJ must determine in sequence: (1) whether the
claimant is currently 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 20 C.F.R. Part
404, Subpart P, Appendix 1 i (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work:
and (5) if so, whether the claimant can perform any other work
which exists in the national economy, in light of his age,
education, work experience and residual functional capacity.
20
C.F.R. §416.920.
See also Newell, 347 F.3d at 545-46.
In
addition, when there is evidence of a mental impairment that
allegedly prevents a claimant from working, the Commissioner must
follow the procedure for evaluating mental impairments set forth
in the regulations. Plummer, 186 F.2d at 432; 20 C.F.R. §416.920a.
4
Plaintiff first
challenges the ALJ's step 2 finding that
autism is plaintiff's sole severe impairment.
that
the ALJ erred by not
finding
that
Plaintiff contends
plaintiff's diagnosed
conditions of depressive disorder, anxiety disorder and borderline
intellectual functioning also are severe impairments.
At step two,
the ALJ must determine whether a claimant's
impairments are severe as defined by the Act.
20 C.F.R. §416.920.
"[An] impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."
inquiry is a
20 C.F.R.
§416.920(a).
de minimus screening device and,
The step two
if the evidence
presents more than a slight abnormality, the step two requirement
of severity is met and the sequential evaluation process should
continue.
Newell, 347 F.3d at 546.
The plaintiff bears the burden at step 2 of establishing that
an impairment is severe.
See, McCrea v. Commissioner of Social
Security, 370 F.3d 357, 360 (3 rd Cir. 2004).
Moreover, it is well
settled that disability is not determined merely by the presence
of a diagnosed impairment, but by the effect that the impairment
has upon the individual's ability to perform substantial gainful
activity.
Thus,
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991).
plaintiff's burden was
to show that his additional
diagnosed impairments resulted in more than a de minimus effect on
his ability to perform basic work functions.
meet
this
burden
here
as
to
either
his
Plaintiff failed to
depressive/anxiety
disorders or his borderline intellectual functioning.
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5
Although \\[r)easonable doubts on severity are to be resolved
in favor of
the claimant,
II
Newell,
347 F. 3d at 547,
there is
little doubt that plaintiff's depression and anxiety have no more
than a de minimus effect on plaintiff's ability to perform basic
work activities and,
Although both Dr.
Dalton,
the
therefore,
Nadulek,
state
agency
are
not
severe
impairments.
the consultative examiner,
psychologist,
depressive disorder and anxiety disorder
noted
(R.
and Dr.
diagnoses
307 i
of
319 & 321),
neither indicated that either of those disorders have any effect
on plaintiff's ability to perform basic work activities.
Nor does the record support such a finding.
The ALJ noted
that plaintiff is not receiving any mental health treatment and
that he does not take any medications for depression or anxiety.
(R. 14).
Moreover, the neuropsychological report from Dr. Petrick
dated January 9, 2007, indicates that while plaintiff's history is
"significant
ll
for symptoms of depression,3 those issues primarily
were "related to family issues which are now resolved."
Dr.
Petrick
symptoms."
plaintiff
further
(R. 333).
with
noted
that
plaintiff
(R. 332).
"denies any
current
In fact, Dr. Petrick did not even diagnose
either
a
depressive
disorder
or
an
anxiety
disorder.
Treatment notes from Dr. Antonio Hardan indicate that
plaintiff was treated for depression around the age of 15 but by
February 29, 2000, there had been "some overall improvement in his
symptoms.
(R. 213-230). Plaintiff did not return to Dr. Hardan
until July of 2005, at which time Dr. Hardan noted "no pervasive
symptoms of depression."
(R. 231).
II
"AO 72
(Rev. 8/82)
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Likewise,
although
Dr.
Petrick
listed
a
diagnosis
of
borderline intellectual functioning (R. 338), he did not suggest
any limitations
on plaintiff's ability to perform basic work
activities arising from that impairment, at least not beyond those
which also arise from plaintiff's autism, which were accounted for
by the ALJ in his residual functional capacity finding.
The ALJ
noted that plaintiff graduated from high school with a 3.0 grade
point
average
with
special
education
assistance
and
that
he
thereafter attended a technical school to study commercial art.
11).
(R.
The
court
is
satisfied
that
the
ALJ's
residual
functional capacity finding accounted for all of the limitations
in plaintiff's ability to perform basic work activities whether
those
limitations
arose
from
autism
or
from
borderline
intellectual functioning, or both.
It also is important to stress that the ALJ did not deny
plaintiff's claim for benefits at step 2.
Instead, he considered
the impact of all of plaintiff's impairments, both severe and not
severe,
on plaintiff's residual
functional
plaintiff not disabled at step 5.
capacity and found
Accordingly, the ALJ's step 2
finding not only is supported by substantial evidence, but also
had no effect on the ultimate determination of not disabled.
Cf.,
McCrea v. Commissioner of Social Security, 370 F.3d 357, 360-61
(3 rd
Cir.
2004)
(the
Commissioner's
determination
to
deny
an
applicant's request for benefits at step 2 "should be reviewed
with close scrutiny" because step 2 "is to be rarely utilized as
a basis for the denial of benefits".)
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Plaintiff also challenges the ALJ's evaluation of the medical
evidence.
the
primarily, he contends that the ALJ improperly accepted
opinion of
the
state
agency
reviewing
psychologist,
Dr.
Dalton, who concluded that plaintiff "is able to meet the basic
mental demands of competitive work on a sustained basis,"
(R.
315), over the opinion of a consultative examiner, Dr. Nadulek,
who opined that plaintiff "should be able to engage in some parttime
gainful
employment
307) (emphasis added).
with
structured
help."
(R.
Upon review, the court is satisfied that
the ALJ's evaluation of
the medical evidence
is supported by
substantial evidence.
Under the regulations, an ALJ is to evaluate every medical
opinion received,
regardless of its source,
and is required to
consider numerous factors in deciding the weight to which each
opinion is entitled,
including,
inter alia,
the examining and
treatment relationship, the specialization of the medical source,
the opinion's supportability and consistency and any other factors
tending
to
support
§416.927(d).
treating,
or
contradict
the
opinion.
20
C.F.R.
Importantly, the opinion of any physician, whether
examining
or
reviewing,
on
the
issue
of
what
an
individual's residual functional capacity is or on the ultimate
determination
of
significance.
20 C.F.R. §416.927(e)
Here,
the
disability
ALJ
never
adhered
to
j
the
is
entitled
to
special
SSR 96 5p.
foregoing
standards
in
evaluating the medical evidence and the court finds no error in
the
ALJ's
conclusions.
In
particular,
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the
ALJ
expressly
considered Dr.
Nadulek' s opinion suggesting that plaintif f
is
limited to part-time work and adequately explained why he did not
give it great weight, specifically noting that Dr. Nadulek offered
no explanation as to why he believed that plaintiff could only
perform work on a part-time basis.
(R.14).
The court has reviewed Dr. Nadulek's report, along with the
other medical evidence, and is satisfied that the ALJ's evaluation
is supported by substantial evidence.
Dr. Nadulek's opinion that
plaintiff is limited to part-time work not only is not explained
in his report but also is inconsistent with both his own objective
findings and the findings of Dr. Dalton and Dr. Petrick.
Plaintiff's contention that the ALJ erred in accepting the
opinion of Dr. Dalton, a non-examining reviewer, over that of Dr.
Nadulek, who examined plaintiff, is unpersuasive.
Initially, the
court notes that while plaintiff suggests that the ALJ "chose" Dr.
Dalton's opinion over that of Dr. Nadulek, a review of the ALJ's
decision shows that the ALJ expressly accorded greater weight "to
the evaluation of Dr. Petrick," another consultative examiner,
than he did to Dr. Nadulek's,
"performed a
more
thorough evaluation utilizing a
objective testing instruments."
substantial
weight
for the reason that Dr. Petrick
to
Dr.
(R. 14).
Dalton's
number of
The ALJ in turn gave
opinion,
which
was
more
(R.14).4
consistent with Dr. Petrick's.
4
The court finds unpersuasive plaintiff's argument that the
ALJ "misinterpreted" Dr. Petrick's opinion. Although plaintiff
suggests that the ALJ interpreted Dr. Petrick's opinion to be that
plaintiff is presently employable, such an opinion would be on an
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Moreover,
to the extent Dr. Dalton's evaluation was given
more weight than Dr. Nadulek's, the ALJ did not err in doing so.
Pursuant to the Regulations, state agency medical consultants are
"highly qualified physicians ... who are also experts in Social
Security disability evaluation."
Accordingly,
physicians,
while
not
the ALJ is
bound
20 C.F.R.
by
findings
to consider those
§416.927(f) (2) (i).
made
by
findings
reviewing
as opinion
evidence, and is to evaluate them under the same standards as all
other medical opinion evidence.
96-6p.
Here,
20 C.F.R. §416.927(f) (2) (ii) i SSR
the ALJ determined that Dr. Dalton's conclusions,
supported by Dr. Petrick, were entitled to substantial weight and
the court finds no error in the ALJ's decision to give less weight
to Dr. Nadulek's unsupported opinion that plaintiff can perform
only part-time work.
SSR 96-2Pi 20 C.F.R. §416.927(d).
In sum, the ALJ did a thorough job in addressing the relevant
medical evidence and explaining why he gave more weight to the
opinions of Dr.
Petrick and Dr. Dalton.
assessment
unexplained
substantial
was
evidence
in
the
and
is
record,
Because Dr. Nadulek's
inconsistent
including
with
the
other
objective
medical
findings,
his opinion was not entitled to significant
weight.
The court is satisfied that the ALJ's evaluation of the
medical evidence is supported by substantial evidence.
issue reserved to the Commissioner and would not be entitled to
any more significance than Dr. Nadulek's opinion that plaintiff is
limited to part-time work.
The court is satisfied that the ALJ
properly evaluated Dr. Petrick's opinion as to plaintiff's
functional limitations and merely used it as support for the ALJ's
residual functional capacity finding.
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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.
The ALJ's findings and conclusions are supported by
substantial
evidence
and
are
not
otherwise
erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
~~
Gustave Diamond
United States District Judge
cc: Susan Paczak, Esq.
Abes Baumann
810 Penn Avenue
Fifth Floor
Pittsburgh, PA 15222-3614
Christy Wiegand
Assistant U.S. Attorney
U.S. Post Office & Courthouse
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
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