KIDD v. ASTRUE

Filing 14

ORDER denying 7 Plaintiff's Motion for Summary Judgment; granting 9 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 1/2/2013. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CRAIG BRIAN KIDD,

Plaintiff,
vs.

Civil Action No. 11-645

MICHAEL J. AS TRUE ,
Defendant.

o

R D E R

AND NOW, this 2nd day of January, 2013, 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) i Jesurum

v. Secretary of U.S. Department of Health & Human Services, 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) i Brown v.
Bowen, 845 F. 2d 1211, 1213 (3d Cir. 1988).
738 F. Supp. 942, 944

(W.D. Pa. 1990)

See also Berry v . Sullivan,

(if supported by substantial

evidence, the Commissioner's decision must be affirmed, as a federal

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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 raises two grounds on which he believes the
Administrative Law Judge ("ALJ") erred in finding him to be not
disabled. However, his arguments have no merit, and the Court finds
that substantial evidence supports the ALJ's decision.
Plaintiff first argues that the ALJ failed to consider his bipolar
disorder at Step Two of the analysis. However, he fails to acknowledge
that the Step Two determination as to whether he is suffering from
a severe impairment is a threshold analysis requiring the showing of
only one severe impairment. See Bradley v. Barnhart, 175 Fed. Appx.
87, 90 (7 th Cir. 2006). In other words, as long as a claim is not denied
at Step Two, it is not generally necessary for the ALJ specifically
to have found any additional alleged impairment to be severe. See
Salles v. Commissioner of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d
Cir. 2007) i Lee v. Astrue, 2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr.
12, 2007) i Lyons v. Barnhart, 2006 WL 1073076, at *3 (W.D. Pa. March
27, 2006). Since Plaintiff's claim was not denied at Step Two, it does
not matter whether the ALJ correctly or incorrectly found Plaintiff's
bipolar disorder to be non-severe.
Of course, even if an impairment is non- severe, it may still affect
a claimant's residual functional capacity ("RFC"). In assessing a
claimant's RFC, the ALJ "must consider limitations and restrictions
imposed by all of an individual's impairments, even those that are
not 'severe. '" S.S.R. 96-8p, 1996 WL 374184 (S.S.A.), at *5 (July 2,
1996). See also 20 C.F.R. § 416.945(a) (2). "While a 'not severe'
impairment(s) standing alone may not significantly limit an
individual's ability to do basic work activities, it may - when
considered with limitations or restrictions due to other impairments
- be critical to the outcome of a claim." S.S.R. 96-8p at *5.
Accordingly, merely because the ALJ did not find Plaintiff's bipolar
disorder to be severe does not mean that this condition could not still
have affected Plaintiff's RFC. However, the ALJ included numerous
restrictions in Plaintiff's RFC based on the severe mental impairments
that he did find to be present, specif ically, Plaintiff s anxiety and
depression. Plaintiff does not suggest what additional limitations
should have been included in the RFC based on his alleged bipolar
I

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disorder that were not already included, nor does the record
demonstrate any such additional restrictions.
Further, as Defendant points out, the medical records contained
in the record of this case do not demonstrate a diagnosis of bipolar
disorder. The mental health professionals who noted the existence of
such a diagnosis were merely memorializing Plaintiff's claims of a
previous diagnosis. (R. 177,179,271). There is no evidence of this
prior diagnosis in the record. The mere memorialization of
Plaintiff's own claims of bipolar disorder does not constitute
objective medical evidence of an impairment. See 20 C.F.R. § 416.928;
Morris v. Barnhart, 78 Fed. Appx. 820, 824 (3d Cir. 2003).
Plaintiff's second argument is that the ALJ failed to give
controlling weight to the opinions of Dr. Gregory Walker and Dr. Mikhail
Vassilenko, who he claims were his treating physicians, finding
essentially disabling limitations. As Plaintiff correctly asserts,
when assessing a claimant's application for benefits, the opinion of
the claimant's treating physician is to be afforded significant weight.
See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer
v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). In fact, the regulations
provide that a treating physician's opinion is to be given "controlling
weight" so long as the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and not
inconsistent with other substantial evidence in the record. 20 C. F. R.
§ 416.927(c) (2) i Fargnoli, 247 F.3d at 43; Plummer, 186 F.3d at 429.
As a result, the Commissioner may rej ect a treating physician's opinion
outright only on the basis of contradictory medical evidence, and not
on the basis of the Commissioner's own judgment or speculation,
although he may afford a treating physician's opinion more or less
weight depending upon the extent to which supporting explanations are
provided. See Plummer, 186 F.3d at 429. Nonetheless, contrary to
Plaintiff's argument that the ALJ did not cite to any contradictory
medical evidence in rejecting the opinions of these professionals,
the ALJ did, in fact, rely on such evidence - the doctors' own clinical
findings and treatment notes. These records show very conservative
and sporadic treatment and fail to demonstrate any of the limitations
contained in the checkbox forms completed by Dr. Walker and Dr.
Vassilenko.
While the ALJ did afford no weight to those checkbox forms, such
forms, requiring the completing physician merely to "check a box or
fill in a blank," rather than provide a substantive basis for the
conclusions stated, are considered "weak evidence at best" in
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Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No.7) is DENIED and defendant's Motion for
Summary Judgment (document No.9) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

determining whether the claimant is disabled. Mason v. Shalala, 994
F.2d 1058, 1065 (3d Cir. 1993). The ALJ explained that he was relying
on the objective medical evidence rather than these forms, none of
which contained any basis for the opinions contained therein setting
forth very restrictive limitations. In fact, it is not clear from the
record that Dr. Vassilenko had any basis for his opinions. Although
he worked at the Staunton Clinic, where Plaintiff treated, the record
does not indicate that he himself treated Plaintiff or that he consulted
with the actual treating psychologist, Dr. Brown, or even reviewed
his notes. What the record does indicate is that Dr. Vassilenko opined
that Plaintiff had disabling mental limitations despite the fact that
Plaintiff had only two appointments with Dr. Brown over approximately
a week, and despite the fact that Dr. Brown's records contain no
indication of serious problems and a finding of a moderate Global
Assessment of Functioning score of 55 - 60. (R. 265 -72). Further the
Court notes that the consultative examiner in regard to Plaintiff's
physical impairments, Andrew Cole, M.D., literally appears to have
adopted Plaintiff's self-reported limitations based on
unsubstantiated prior alleged diagnoses of collapsed vertebrae, a
fractured pelvic bone, and curvature of the spine. (R. 182-89).
Indeed, the MRIs performed prior to Dr. Cole's October 1, 2007
examination of Plaintiff contain no evidence of the alleged prior
diagnoses. (R. 174, 236).
I

Accordingly, substantial evidence supports the finding that
Plaintiff is not disabled.

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