BULAR v. ASTRUE
Filing
12
MEMORANDUM OPINION AND ORDER denying 8 Plaintiff's Motion for Summary Judgment; and granting 10 Defendant's Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 10/31/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JARED BULAR,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
02: 10-cv-1608
MEMORANDUM OPINION AND ORDER OF COURT
October 31, 2011
I.
Introduction
Plaintiff, Jared Bular, brought this action pursuant to 42 U.S.C. ' 405(g), for
judicial review of the final determination of the Commissioner of Social Security
(ACommissioner@) which denied his application for disability insurance benefits (ADIB@)
under Title II of the Social Security Act (AAct@), 42 U.S.C. '' 401-403.
II.
Background
Plaintiff was born on April 11, 1983, and was twenty-six years old at the time the
Administrative Law Judge (“ALJ”) issued his decision. (R. 15). He is a high school
graduate, capable of communicating in English, and has worked approximately 20 hours per
week as a stock room laborer at a Dick‟s sporting goods store (“Dick‟s”) since 2007.
According to Plaintiff, his job duties include unloading trucks, cleaning, and conducting
general maintenance around the store. (R. 27). He also testified that on occasion his
employer assigned him to stand by the front door of the store to greet customers. (R. 27-28).
Other than the position at the sporting goods store, Plaintiff has no past relevant work
experience. (R. 15).
Plaintiff alleges disability as of January 1, 2006, due to a learning disability,
Asperger‟s syndrome, attention deficit disorder, and asthma. Although Plaintiff worked after
his alleged onset date, the ALJ determined that Plaintiff‟s earnings were below the threshold
for a finding of substantial gainful activity. (R. 11).
A.
Plaintiff‟s Physical Health History
While Plaintiff took medication for asthma and allergies, the record reflects that he
does not suffer from any physically disabling conditions. (R. 162, 287, 292). For example,
Plaintiff indicated in a disability function report submitted to the state agency that he could
walk three miles or more without rest and had no other difficulties walking. (R. 143).
Furthermore, after a July 9, 2007 check-up, Plaintiff‟s primary care physician Harry Silvis,
M.D., reported that Plaintiff had not experienced an asthma attack since 2002. (R. 299).
Approximately one year later, Dr. Silvis noted that Plaintiff was working regularly and only
using his inhaler (Maxair) once per week. (R. 295).
B.
Plaintiff‟s Mental Health History
In late September 1991, Plaintiff underwent the Wechsler Intelligence Scale for
Children, Revised Test, which was given by a school psychologist, Evelyn Ruschel. (R. 110).
Plaintiff, who was then ten years old, registered a verbal IQ of 80, a performance IQ of 84,
and a full scale IQ of 80; taken together, the results revealed low average intelligence. (R.
110, 167, 175, 224, 230). Prior tests had showed a range of intelligence scores, including an
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IQ score of 108 when Plaintiff was five years old, based on the Stanford-Binet Intelligence
Scale-Form L-M. (R. 167, 169, 224-25). According to Plaintiff‟s school psychologist, such
variation was consistent with a learning disability, and the IQ score was only a minimal
assessment of Plaintiff‟s actual intellectual capabilities. (R. 177, 229). As a result of the test
scores, Plaintiff was placed in learning support classes from the second grade onward. (R.
135). He also received speech therapy. (R. 263). When he was in high school, however, he
was mainstreamed under an individual education program. (R. 205-08).
On December 6, 2001, Plaintiff was administered the Wechsler Adult Intelligence
Scale IQ Test, Third Edition (“WAIS-III”), on which he registered a full scale IQ of 72,
placing him in the borderline range of intellectual functioning. (R. 182, 242). A few months
later, on April 18, 2002, he was again administered the WAIS-III, the results of which
showed a full scale IQ of 77, a verbal IQ of 75, and a performance IQ of 83. (R. 189, 232).
Plaintiff‟s full scale IQ again placed him in the borderline range of intellectual functioning.
(R. 195). However, Nikolas Martin, Ed.D., who administered the test, opined that the results
mildly underestimated Plaintiff‟s true intellectual functioning. (R. 236). In his view, Plaintiff
could handle training and employment-related experiences of a mildly complex nature and
was “best suited for mildly complex visual related activities linked to the [r]ealistic realm that
may involve assembly, repair, maintenance or installation related activity.” (R. 195, 236).
Furthermore, Dr. Martin concluded that, despite Plaintiff‟s arithmetic disability, and reading
decoding, reading comprehension, spelling, and expressive writing comprehension deficits,
he had average nonverbal visual reasoning-related abilities, good physical health with both
3
fine and gross motor skills intact, and a high degree of vocational motivation. (R. 201, 203,
239-40).
On June 21, 2006, Plaintiff began seeing a psychologist, Avril D. Zaharoff, Ph.D.,
for treatment of his ADD, at the recommendation of Dr. Silvis. (R. 309, 245-46). Plaintiff
saw Dr. Zaharoff until October 20, 2006, when he started working at a toy factory. (R. 252).
Two months later, on December 20, 2006, Plaintiff, who was having difficulty
functioning in a work situation, began seeing Ravi Kant, M.D., at the recommendation of the
Pennsylvania Office of Vocation Rehabilitation (R. 247-48, 255-57, 263, 327-28). During his
initial visit with Plaintiff, Dr. Kant noted that he appeared “calm and pleasant and somewhat
shy and reluctant to talk.” (R. 263). Additionally, he displayed no obvious symptoms of
depression, anxiety, or psychosis and did not have behavioral issues. (R. 263). Dr. Kant
opined that Plaintiff had borderline intellectual functioning and mild dysarthria. (R. 263).
Dr. Kant further opined that Plaintiff appeared to be somewhat concrete in his thinking
process, but his insight and judgment were fair. (R. 263). As a result of his findings, Dr.
Kant diagnosed Plaintiff with Asperger‟s disorder and ADD without hyperactivity, for which
he prescribed Adderall. (R. 263).
On January 17, 2007, Dr. Kant noted that Plaintiff was tolerating his dosage of
Adderall, which seemed to increase his ability to pay attention at home. (R. 265). Although
Plaintiff experienced a few sleepless nights and lost weight, he had no major side effects. (R.
265). Accordingly, Dr. Kant continued Plaintiff on Adderall. (R. 265).
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One month later, Dr. Kant reported that Plaintiff continued to respond well to
Adderall and felt “more alert with medication and able to do things without being told.” (R.
267). In addition, according to Dr. Kant‟s treatment notes, Plaintiff was continuing to stay
busy around the house, but had not been in any work situations. (R. 267). After the checkup, Dr. Kant raised Plaintiff‟s Adderall dosage to 30 milligrams. (R. 268).
At their next visit on April 12, 2007, Dr. Kant reported that Plaintiff experienced
no side effects from his medication. (R. 269). He also indicated that Plaintiff was calm,
pleasant, and interactive, with no obvious symptoms of depression or anxiety. (R. 269).
Furthermore, it was noted that Plaintiff was scheduled to begin a job shadowing program,
which, according to Dr. Kant, Plaintiff “fe[lt] good about it.” (R. 269). On June 14, 2007,
Dr. Kant again indicated in his notes that Plaintiff continued to experience no medication side
effects. (R. 269). Dr. Kant also noted that Plaintiff had obtained a part-time job with a
cabinet maker and that he “fe[lt] good about it.” (R. 269).
Dr. Kant next saw Plaintiff on August 9, 2007, at which time he reported that
Plaintiff continued to work one or two days a week with the cabinet maker. (R. 274).
According to Dr. Kant‟s notes, Plaintiff was struggling with his mood because he had
received “many rejections when [he] put in [job] applications.” (R. 274). On the other hand,
Dr. Kant also indicated that Plaintiff had been doing many things on his own without being
told as often. (R. 274).
Before Plaintiff‟s next appointment with Dr. Kant, he obtained a job at Dick‟s in
Washington, Pennsylvania. (R. 275). On October 11, 2007, Dr. Kant recorded in his notes
5
that Plaintiff was happy about his new job. (R. 275). Dr. Kant also opined that Plaintiff was
doing better in taking initiative and doing things while on Adderall. (R. 276).
Over the next several months, Dr. Kant documented that Plaintiff‟s mental health
condition remained stable. For example, in early December 2007, Dr. Kant remarked that
Plaintiff was doing well at work, although his hours had recently been cut due to the holidays.
(R. 275). On January 31, 2008, Dr. Kant noted that Plaintiff had been feeling happy overall
because he was doing well at work, he had stopped losing weight, and his mood was stable.
(R. 279). Dr. Kant indicated again on March 27, 2008 that Plaintiff was still tolerating
Adderall without difficulty and that his attention was good. (R. 281). He made similar
statements in May, July, and September 2008, each month noting that Plaintiff was doing
“fairly good at work.” (R. 283-85).
On August 12, 2008, Dr. Silvis, Plaintiff‟s primary care physician, completed a
questionnaire regarding Plaintiff‟s mental functioning. (R. 290-91). He indicated that
Plaintiff had a marked restriction in understanding, remembering, and carrying out detailed
instructions and making judgments on simple work-related decisions, and a moderate
restriction as to short, simple instructions. (R. 290). He further indicated that Plaintiff had
moderate restrictions in responding appropriately to supervision, co-workers, and work
pressures. (R. 290). In addition, Plaintiff‟s reasoning and ability to follow directions were
moderately impaired, which Dr. Silvis attributed to Plaintiff‟s Asperger‟s disorder and ADD.
(R. 291).
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At the request of the state agency, Plaintiff underwent an examination by T. David
Newman, Ph.D., on September 26, 2008. (R. 332-36). According to Dr. Newman, Plaintiff
had no difficultly establishing a rapport and his mood was stable. (R. 333). He maintained
good eye contact and did not seem anxious. (R. 333). In addition, he appeared alert and
appropriately responsive to questions and had clearly articulated speech with consistently
relevant, rational, and coherent content. (R. 333). Dr. Newman found a marked limitation in
Plaintiff‟s ability to understand, remember, and carry out short, simple instructions; extreme
limitation in his ability to understand, remember, and carry out detailed instructions; and a
moderate limitation in his ability to make judgments on simple, work-related decisions. (R.
334). Furthermore, Dr. Newman opined that Plaintiff was not limited in responding
appropriately to supervision, co-workers, and work pressures. (R. 334).
Dr. Newman found that Plaintiff‟s concentration ability was undisturbed. (R. 333).
He noted that Plaintiff‟s abstract thinking was for the most part intact, while his concept
formation was fully intact. (R. 333). Although Plaintiff demonstrated subtraction difficulty
with serial sevens and serial threes, he was able to recite the months of the year in reverse
without error. (R. 333). Plaintiff‟s memory was deficient with regard to immediate verbal
recall; however, he could recall relevant events from his past, what he did two days prior to
the examination, and what he ate the previous day and the morning of the examination. (R.
333). Plaintiff‟s social judgment and test judgment both were sufficient, and Dr. Newman
opined that Plaintiff had good insight. (R. 334).
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In Dr. Newman‟s opinion, Plaintiff did not have Asperger‟s disorder or ADD, the
symptoms of which would have appeared at an earlier age. (R. 334). Instead, Dr. Newman
diagnosed Plaintiff with an unspecified learning disorder, finding that “there appeared to be
some difficulty with retention of instructions and immediate verbal recall.” (R. 334). Despite
those difficulties, Dr. Newman concluded that Plaintiff could competently manage his
personal funds. (R. 334).
On October 7, 2008, state agency psychologist Michelle Santilli, Psy.D., reviewed
Plaintiff‟s record. (R. 335). Dr. Santilli found that Plaintiff‟s basic memory processes were
intact and that he was able to perform simple, routine, repetitive work in a stable work
environment. (R. 335-54). Furthermore, in her view, Plaintiff could manage an ordinary
routine without supervision, as he could understand, retain, and follow simple instructions.
(R. 339). Dr. Santilli reviewed the opinions of both Dr. Silvis and Dr. Newman. (R. 339).
She felt that Dr. Newman‟s opinion, particularly his judgment as to Plaintiff‟s occupational
adjustment abilities, was inconsistent with the totality of the evidence and was also internally
inconsistent, which rendered it less persuasive. (R. 339).
The record reflects that Plaintiff continued to function well at home and at work
throughout much of 2008 and 2009, as documented in treatment notes received after the state
agency‟s review of Plaintiff‟s file. On December 16, 2008, Dr. Kant recorded in his
treatment notes that Plaintiff‟s mother, with whom he resided, had been visiting his father in
Arizona, and as a result, Plaintiff had been living mostly by himself. (R. 371). Although he
had lost about fifteen pounds, he had no new issues and was doing well at home and work.
8
(R. 371). Plaintiff was still getting along well at work on February 10, 2009, according to Dr.
Silvis‟ notes. (R. 369). Similarly, a month later, Dr. Kant noted that Plaintiff had been
independent and had done well taking care of himself. (R. 367). He was also logging
approximately twenty-eight hours per week at work, where he continued to do well. (R. 367).
By August 25, 2009, Plaintiff was no longer taking Adderall on the weekends, and
he did not notice a difference. (R. 361). Dr. Kant‟s notes from the August 25 visit and an
October 20 visit reveal that Plaintiff was still doing well at work. (R. 361). In mid-December
2009, Dr. Kant noted that Plaintiff was staying busy with work, although he was only parttime and not getting enough hours. (R. 357). In addition, Dr. Kant noted that Plaintiff was
experiencing weight gain and usually displayed a good mood. (R. 357). On February 9,
2010, Dr. Kant again noted that Plaintiff was doing well at work, but he was still not getting
enough hours. (R. 356). Furthermore, Dr. Kant opined that Plaintiff had issues processing
information, thinking concretely, and functioning without help at work. (R. 356). In Dr.
Kant‟s view, Plaintiff needed monotonous simple jobs without disruptions, much decision
making, and uncertainty. (R. 356).
In a questionnaire dated April 13, 2010, Dr. Silvis indicated that Plaintiff could
work on a part-time basis. (R. 376) Plaintiff‟s ability to understand, remember and carry out
complex job instructions was poor. (R. 378). His ability to understand, remember, and carry
out detailed, but not complex, instructions, however, was fair; and his ability to understand,
remember, and carry out simple instructions was considered good. (R. 378). Dr. Silvis also
noted that Plaintiff was unable to handle money or count. (R. 378). Dr. Silvis further
9
indicated that Plaintiff‟s ability to maintain his personal appearance and behave in an
emotionally stable manner was good, while he showed a fair ability to relate predictably in
social situations and demonstrate reliability. (R. 378). With respect to Plaintiff‟s ability to
make occupational adjustments, Dr. Kant checked boxes to indicate that Plaintiff had goodto-fair ability to follow work rules, relate to co-workers, deal with the public, interact with
supervisors, and maintain attention and concentration. (R. 377). On the other hand, Plaintiff
demonstrated a poor ability to use judgment, deal with work stress, and function
independently. (R. 377). According to Dr. Kant, his assessment of Plaintiff‟s abilities was
supported by Plaintiff‟s Asperger‟s syndrome. (R. 378).
C.
Procedural History
Plaintiff initially filed an application for DIB on July 21, 2008, in which he claimed
total disability since January 1, 2006. The claim was initially denied, and Plaintiff timely filed
a written request for hearing on December 11, 2008. An administrative hearing was held on
May 7, 2010 in Pittsburgh, Pennsylvania before Administrative Law Judge William E.
Kenworthy, at which Plaintiff was represented by counsel and testified. Also testifying was
Mary Beth Kopar, M.Ed., an impartial vocational expert (“VE”).
On May 11, 2010, the ALJ rendered an unfavorable decision to Plaintiff in which he
found that Plaintiff retained the ability to perform a full range of work at all exertional levels
but with the following non-exertional limitations: he is “limited to one or two step activities
that would not require dealing with the general public or maintaining close interaction and
cooperation with coworkers.” (R. 13). Accordingly, because the VE testified that jobs existed
10
in the national economy that could be performed by an individual with such limitations, the
ALJ concluded that Plaintiff was not “disabled” within the meaning of the Act. The ALJ=s
decision became the final decision of the Commissioner on October 8, 2010, when the Appeals
Council denied Plaintiff=s request to review the decision of the ALJ.
On December 3, 2010, Plaintiff filed his Complaint in this Court in which he seeks
judicial review of the decision of the ALJ. The parties have filed cross-motions for summary
judgment. Plaintiff contends that the ALJ erred by (1) improperly weighing the medical
records and opinion of Plaintiff‟s treating psychiatrist, Dr. Kant, and inappropriately engaging
in his own medical diagnosis; and (2) failing to properly weigh all of the evidence of record.
The Commissioner contends that the decision of the ALJ should be affirmed as it is supported
by substantial evidence. The Court agrees and will therefore grant the motion for summary
judgment filed by the Commissioner and deny the motion for summary judgment filed by
Plaintiff.
III.
Legal Analysis
A.
Standard of Review
The Act limits judicial review of disability claims to the Commissioner's final
decision. 42 U.S.C. §§ 405(g)/1383(c)(3). If the Commissioner's finding is supported by
substantial evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g);
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Supreme Court has defined
"substantial evidence" as "such relevant evidence as a reasonable mind might accept as
11
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Capato v.
Commissioner of Social Security, 631 F.3d 626, 628 (3d Cir. 2010) (internal citation omitted).
It consists of more than a scintilla of evidence, but less than a preponderance. Thomas v.
Commissioner of Social Security, 625 F.3d 798 (3d Cir. 2010).
When resolving the issue of whether an adult claimant is or is not disabled, the
Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920
(1995). This process requires the Commissioner to consider, in sequence, whether a claimant
(1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals the
requirements of a listed impairment, (4) can return to his or her past relevant
work, and (5) if not, whether he or she can perform other work. See 42 U.S.C . § 404.1520;
Newell v. Commissioner of Social Security, 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting
Burnett v. Commissioner of Social Security, 220 F.3d 112, 118-19 (3d Cir. 2000)).
To qualify for disability benefits under the Act, a claimant must demonstrate that
there is some "medically determinable basis for an impairment that prevents him or her from
engaging in any substantial gainful activity for a statutory twelve-month period."
Fargnoli v. Halter, 247 F.2d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. §
423 (d)(1) (1982).
This may be done in two ways:
(1) by introducing medical evidence that the claimant is disabled per se because he
or she suffers from one or more of a number of serious impairments delineated in 20
C.F.R. Regulations No. 4, Subpt. P, Appendix 1. See Heckler v. Campbell, 461 U.S.
458 (1983); Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004); or,
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(2) in the event that claimant suffers from a less severe impairment, by
demonstrating that he or she is nevertheless unable to engage in "any other kind of
substantial gainful work which exists in the national economy . . . ." Campbell, 461
U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first
demonstrate the existence of a medically determinable disability that precludes plaintiff from
returning to his or her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once it
is shown that claimant is unable to resume his or her previous employment, the burden shifts to
the Commissioner to prove that, given claimant‟s mental or physical limitations, age, education
and work experience, he or she is able to perform substantial gainful activity in jobs available
in the national economy. Rutherford, 399 F.3d at 551; Newell, 347 F.3d at 546; Jones, 364
F.3d at 503; Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
Where a claimant has multiple impairments which may not individually reach the
level of severity necessary to qualify any one impairment for Listed Impairment status, the
Commissioner nevertheless must consider all of the impairments in combination to determine
whether, collectively, they meet or equal the severity of a Listed Impairment. Diaz v.
Commissioner of Social Security, 577 F.2d 500, 502 (3d Cir. 2010); 42 U.S.C. § 423(d)(2)(C)
(“in determining an individual‟s eligibility for benefits, the Secretary shall consider the
combined effect of all of the individual‟s impairments without regard to whether any such
impairment, if considered separately, would be of such severity”).
In this case, the ALJ determined that Plaintiff was not disabled within the meaning of
the Act at the fifth step of the sequential evaluation process. Based on the VE‟s testimony, the
13
ALJ concluded that there are a significant number of jobs in the national economy, such as
laundry worker, cleaner, sorter, and material handler, which Plaintiff could perform despite the
restrictions accounted for in his RFC assessment.
B.
Discussion
As set forth in the Act and applicable case law, this Court may not undertake a de
novo review of the Commissioner=s decision or re-weigh the evidence of record. Monsour
Medical Center v. Heckler, 806 F.2d 1185, 1190 (3rd Cir. 1986), cert. denied., 482 U.S. 905
(1987). The Court must simply review the findings and conclusions of the ALJ to determine
whether they are supported by substantial evidence. 42 U.S.C. ' 405(g); Schaudeck v. Comm=n
of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
Plaintiff argues that the ALJ gave inappropriate treatment to the medical records and
opinions provided by his treating psychiatrist, Dr. Kant. According to Plaintiff, “[a]ll of Dr.
Kant‟s treatment notes were submitted in this case as well as a 4-page opinion statement,” and
the ALJ erred “by failing to even mention, let alone properly weigh, this important
information.” Plaintiff‟s Brief at 4. The Commissioner, however, avers that the medical
evidence, medical opinions of record, and Plaintiff‟s own testimony supported the ALJ‟s
finding that Plaintiff‟s mental impairments did not prevent him from performing the jobs
identified by the VE. The Court agrees with the Commissioner.
In general, an ALJ must accord “treating physicians‟ reports great weight, „especially
when their opinions reflect expert judgment based on a continuing observation of the patient‟s
condition over a prolonged period of time.‟” Brownawell v. Commissioner of Social Security,
14
554 F.3d 352, 355 (3d Cir. 2008) (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000));
20 C.F.R. § 404.1527(d)(2) (providing that a treating physician‟s opinion should receive
controlling weight when it is well-supported by medical evidence and consistent with the other
substantial evidence in the record). However, while an ALJ may not draw speculative
inferences from medical reports or base his decision on his own “credibility judgments,
speculation, or lay opinion,” he may reject a treating physician‟s opinion outright on the basis
of conflicting evidence in the record. Morales, 225 F.3d at 317-18 (citing Plummer v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999)). In doing so, the United States Court of Appeals for the
Third Circuit has instructed that an ALJ must at least “consider all the evidence and give some
reason for discounting the evidence she rejects.” Plummer, 186 F.3d at 429.
In reaching his decision, the ALJ considered the opinion of Plaintiff‟s primary care
physician, Dr. Silvis, including a four-page medical statement completed on April 13, 2010.
(R. 14). In his opinion, the ALJ noted that Dr. Silvis‟ April 13 assessment, which indicated that
Plaintiff‟s ability to understand, remember, and carry out complex tasks, use judgment, deal
with work stress, and function independently, was inconsistent with the medical evidence of
record, including earlier check-mark forms completed in 2008 by Dr. Silvis. (R. 14). Those
earlier findings, according to the ALJ, were consistent with his RFC finding and the weight of
the medical evidence.
The ALJ also considered the opinions of Dr. Newman, who saw Plaintiff for a onetime consultative evaluation on September 28, 2008, and Dr. Santilli, who reviewed the
evidence at the state agency level. (R. 14). He found that Dr. Newman‟s conclusion with
15
respect to Plaintiff‟s limitations in carrying out simple tasks was “simply unsupported by
anything contained in the report of the interview.” (R. 14). The ALJ found further support for
his rejection of Dr. Newman‟s conclusion in Dr. Santilli‟s opinion that Plaintiff could sustain
an ordinary work routine without special supervision. (R. 14).
In addition, the ALJ made reference to medical records from Dr. Kant, which
reflected that Plaintiff “has been staying busy with work, doing well at work . . . still doing only
part-time work, not getting enough hours there.” (R. 9). While the ALJ did not expressly
indicate how much weight he was according Dr. Kant‟s observations, he noted that the
statement that the Plaintiff had been doing well at work but not getting enough hours reflected a
limitation upon vocational opportunity and not a limitation upon the claimant‟s inherent ability.
(R. 15).
Plaintiff contends that the ALJ‟s statement regarding Dr. Kant‟s records was not
based on medical evidence but was “pure speculation [as to Plaintiff‟s ability to work full-time]
after reading one sentence out of a vast number of treatment notes.” Plaintiff‟s Brief at 6
(citing Morales, 225 F.3d at 317 (concluding that “[t]he ALJ cannot, as he did here, disregard
this medical opinion based solely on his own „amorphous impressions, gleaned from the record
and from his evaluation of [the claimant]‟s credibility.‟”)) (internal citations omitted). The
Court disagrees. The ALJ did not infer from Dr. Kant‟s records that Plaintiff could work on a
full-time basis. Rather, he correctly determined that the fact that Plaintiff‟s employer slashed
his hours was unrelated to his ability to perform work-related tasks. Furthermore, in a
December 6, 2007 treatment note, Dr. Kant reported that “Plaintiff‟s work hours are cut at
16
Dick‟s due to [the] holidays. [He is] handling it well.” (R. 277). Such a statement suggests that
Plaintiff found himself capable of working additional hours, presumably with certain
limitations.
Indeed, considered as a whole, Dr. Kant‟s medical records actually support the ALJ‟s
finding that Plaintiff could perform work existing in the national economy. Nowhere in the
forty-four pages of medical records from Dr. Kant does he indicate that Plaintiff has any
significant limitations in his ability to work. Rather, he repeatedly opined that Plaintiff was
doing well at work. In addition, he noted on several occasions that Plaintiff was able to care for
himself and was responding well to Adderall. Importantly, although Dr. Kant recognized that
Plaintiff struggled with information processing, thinking concretely, functioning without help at
work and was best suited for simple, monotonous jobs, most of those limitations were
accounted for in the ALJ‟s RFC finding. (R. 13).
Plaintiff also contends that the ALJ “inappropriately ignored [Dr. Kant‟s] entire 4page opinion and never even mentioned it in his decision.” Plaintiff‟s Brief at 6-7. Having
reviewed the record in its entirety, the Court is unable to find an opinion statement submitted
by Dr. Kant. In fact, the pages of the record to which Plaintiff cites as containing such an
opinion, pages 376-78, actually contain the questionnaire completed on April 13, 2010 by Dr.
Silvis. As discussed above, the ALJ expressly rejected the opinion set forth in that
questionnaire in favor of contrary medical evidence in the record and provided a thorough
rationale for his doing so. Accordingly, Plaintiff‟s argument is entirely without merit.
17
IV.
Conclusion
It is undeniable that Plaintiff has a number of impairments, and this Court is
sympathetic and aware of the challenges which Plaintiff faces in seeking gainful employment.
Under the applicable standards of review and the current state of the record, however, the Court
must defer to the reasonable findings of the ALJ and his conclusion that Plaintiff is not disabled
within the meaning of the Social Security Act, and that he is able to perform a wide range of
work at all exertional levels but with several non-exertional limitations.
For these reasons, the Court will grant the Motion for Summary Judgment filed by
the Commissioner and deny the Motion for Summary Judgment filed by Plaintiff.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JARED BULAR,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
02: 10-cv-1608
ORDER OF COURT
AND NOW, this 31st day of October, 2011, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1.
Plaintiff‟s MOTION FOR SUMMARY JUDGMENT is DENIED.
2.
Defendant‟s MOTION FOR SUMMARY JUDGMENT is GRANTED.
3.
The Clerk will docket this case as closed.
BY THE COURT:
s/Terrence F. McVerry
United States District Court Judge
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cc:
Kelie C. Schneider, Esquire
kschneider@peircelaw.com
Christy Wiegand, Esquire
Christy.wiegand@usdoj.gov
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