DROGUS v. ASTRUE

Filing 17

ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 4/16/13. (hmg)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CYNTHIA MARIE DROGUS,
Plaintiff,

v.

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CAROLYN W. COLVIN,'
Commissioner of
Social Security
Defendant.

Civil Action No. 12-643

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AMBROSE, U.S. Senior District Judge
OPINION

AND

ORDER

I.

Synopsis
Plaintiff Cynthia Marie Drogus filed this action pursuant to 42 U.S.C. § 405(g) seeking

judicial review of the final decision of the Commissioner of Social Security ("Commissioner")
denying her application for disability insurance benefits ("DIB") and supplemental security
income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 1381-1383f.
Pending before the Court are cross-motions for Summary Judgment. ECF Nos. [13] (Plaintiff) &
[15] (Defendant).

Both parties have filed Briefs in Support of their Motions. ECF Nos. [14]

(Plaintiff) & [ 16] (Defendant). After careful consideration of the submissions of the parties, and
based on my Opinion, as set forth below, I GRANT Defendant's Motion for Summary Judgment
[15] and DENY Plaintiffs Motion for Summary Judgment [13].

IOn February 14,2013, Carolyn W. Colvin became the Acting Commissioner of Social Security. Pursuant to Fed.
R. Civ. P. 25(d), when a public officer who is party to a case in his official capacity ceases to hold office while an
action is pending, the officer's successor is automatically substituted as a party. Accordingly, Carolyn W. Colvin is
substituted for named defendant Michael J. Astrue.

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II. Background
Plaintiff protectively filed an application for DIB and SSI on February 16,2010, alleging
disability beginning on May 1, 2008. PI.'s Br. 1. When Plaintiffs applications were initially
denied, she filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id at 1-2.
Plaintiff testified at the hearing held on June 22, 2011. Id at 2. Subsequently, on July 21,2011,
the ALJ issued a decision finding Plaintiff not disabled under the Social Security Act. ECF No.
9, 12-24. The Appeals Council denied Plaintiffs request for a review of the ALJ's decision.
PI.' s Br. 3. This appeal followed and, as the parties have filed cross-motions for Summary
Judgment, the issues are now ripe for review.
III. Legal Analysis
A.

Standard ofReview

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner's decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as "[m]ore than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d
900,901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Additionally,
the Commissioner's findings of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court
cannot conduct a de novo review of the Commissioner's decision or re-weigh the evidence of
record. Palmer v. Apfel, 995 F. Supp. 549, 552 (RD. Pa. 1998). Where the ALl's findings of
fact are supported by substantial evidence, a court is bound by those findings, even if the court
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d

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Cir. 1999). To determine whether a finding is supported by substantial evidence, however, the
district court must review the record as a whole. See 5 U.S.C. § 706.
To be eligible for supplemental security income ("SSI"), a plaintiff must demonstrate that
she cannot engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. § 1382c(a)(3)(A).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. § 41.920. The ALJ must determine:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether
the claimant has a severe impairment; (3) if the claimant has a severe impairment, whether it
meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if the impairment
does not satisfy one of the impairment listings, whether the claimant's impairments prevent him
from performing his past relevant work; and (5) if the claimant is incapable of performing his
past relevant work, whether he 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. A Claimant carries the initial burden of demonstrating by medical evidence
that he is unable to return to his previous employment (Steps 1-4). Dobrowolsky, 606 F.2d at
406. Once the claimant meets this burden, the burden of proof shifts to the Commissioner to
show that the claimant can engage in alternative substantial gainful activity (Step 5).
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).

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B. Whether the ALl Erred in Evaluating Plaintiff's Residual Functional Capacity
First, Plaintiff argues that the ALJ failed to apply the appropriate legal standard in his
evaluation of Plaintiff's residual functional capacity (RFC) and that the ALJ's finding is not
supported by substantial evidence. Pl.'s Br. 6-10. Specifically, Plaintiff alleges that "the ALJ's
conclusion as to [Plaintiffs] exertional level is inconsistent with the functional assessment"
because the ALJ found the Plaintiff capable of light work but further limited the type of light
work that Plaintiff could do. Id at 7. An RFC determination is an assessment of the most an
individual can do given his or her limitations. SSR 96-8p. Here, the ALJ explained that he did
not find "reasonable support in the evidence of record as a whole for a more restrictive finding."
ECF No.9, 20. I find substantial evidence supports the ALJ's conclusion. Therefore, I find no
error in the ALJ's determination that Plaintiff is capable of a limited range of light work.
Additionally, Plaintiff asserts that the ALJ's finding contradicts the medical opinion of
Dr. Kraynak. Pl.'s Br. 8. Dr. Kraynak is the State agency doctor who conducted a consultative
examination of Plaintiff in May 2009. ECF No.9, 263-70. An ALJ is required to evaluate all of
the medical opinions received. 20 C.F.R. §§ 404.1527(b), 416.927(b). In so doing, an ALJ is
required to give reasons for any evidence discounted or rejected. Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999). When evaluating medical opinions, an ALJ should consider whether
there is reasonable support for the opinion and whether the opinion is consistent with the other
substantial evidence in the record. SSR 96-2p; 20 C.F.R. § 404. 1527(c). If a medical opinion is
well-supported but not consistent with the other substantial evidence in the record, it may not be
given "controlling weight."

SSR 96-2p.

Moreover, opinions on issues such as an RFC

determination are never entitled to controlling weight, as that is an issue reserved to the
Commissioner. SSR 96-5p; Chandler v. Comm'r ofSoc. Sec., 667 F.3d 356, 359 (3d Cir. 2011).

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Here, the ALJ explained that he found Dr. Kraynack's opinion largely based on
Plaintiff's subjective complaints, which he found to be "wholly inconsistent with the information
from her treatment records.,,2 ECF No.9, 19. Accordingly, the ALJ also found Dr. Kraynack's
opinion inconsistent with the evidence of record and, therefore, afforded it little weight. ECF
No. 9, 22. "An ALJ may reject the claimant's subjective testimony ifhe does not find it credible
so long as he explains why he is rejecting the testimony." Hurlimann v. Astrue, No. 09-94J,
2010 WL 2606521, at *4 (W.D. Pa. June 28, 2010) (citing Schaudeck v. Comm'r a/Soc. Sec.,
181 F.3d 429, 433 (3d Cir. 1999)). Because I find substantial evidence to support the ALl's
conclusion that Plaintiff s statements are not supported by her treatment records, I find no error
in the ALJ's decision to afford Dr. Kraynack's opinion little weight. See ECF No.9, 19 & 22.
C. Whether the AU Applied the Appropriate Legal Standard in Assessing Plaintiff's

Credibility
As explained above, I find no error in the ALl's assessment of Plaintiffs credibility.
Contrary to Plaintiffs assertion that the ALJ merely compared Plaintiff's statements concerning
the intensity, persistence, and limiting effects of her symptoms with his own RFC finding, the
ALJ plainly stated in his Opinion that he found claimant's statements "wholly inconsistent with
the information in her treatment records." ECF No.9, 19. In fact, throughout his Opinion, as the
ALJ evaluated each of Plaintiffs impairments, he carefully considered and rejected many of
Plaintiffs subjective allegations as uncorroborated by her treatment records. See, e.g., ECF No.
2 Although Plaintiff suggests in a footnote that the AU's on-the-record conversation with Plaintiffs counsel during
the hearing regarding completeness of the record and Plaintiffs alleged impairments was "misleading," PI.'s Br. 7,
n.2, I find nothing in the hearing testimony or the record to suggest that the AU made a determination on an
incomplete record. As the AU noted in his Opinion: "Although the treatment reflected in these records has been
relatively conservative, sporadic, and routine, it does cover the relevant period, anq [claimant's] most recent
treatment reflected in the record is from May 2011 [a month before the hearing]. As such, I find the record
sufficient for decision." ECF No.9, n.16. I concur. In addition to agreeing that the medical record was complete,
Plaintiffs counsel did not question the Vocational Expert himself, indicating that the AU "addressed everything
that [he] would have liked to have addressed." ECF No.9, 52. Accordingly, I find the record was sufficiently
complete for the AU to render a decision.

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9, 20 (finding inconsistencies regarding Plaintiffs reports of pain and functional limitations and
the associated medical treatment), 20-21 (finding Plaintiff's allegations as to significant
limitations in the use of her left hand unsupported by the treatment record), 21 (considering
Plaintiffs allegations of irritable bowel syndrome, weight, and asthma and explaining why, in
each case, Plaintiff's allegations are not supported by her treatment record). Although Plaintiff
argues that her statements "are supported by competent medical evidence," Pl.'s Br. 11, the
standard is not whether there is evidence to establish the Plaintiffs position but, rather, whether
there is substantial evidence to support the ALl's finding. Allen v. Bowen, 881 F.2d 37, 39 (3d
Cir. 1989). I find substantial evidence that the ALJ evaluated Plaintiff's symptoms in accord
with Social Security Regulation 96-7p and 20 C.F.R. §§ 416.929(c), 404. 1529(c). Consequently,
I find no error in the ALJ's assessment.

D. Whether the AU Erred at Step 5 o/the Sequential Process
Plaintiff argues that the ALJ erred at Step 5 of the sequential process by relying on the
testimony of the vocational expert ("VE"). Pl.'s Br. 13. Specifically, Plaintiff asserts the ALl's
questioning of the VE was incomplete (due to alleged errors in the ALl's RFC determination,
assessment of opinion evidence, and determinations regarding Plaintiffs credibility) and that the
VE did not adequately address Plaintiffs need for four bathroom breaks because the need is not
addressed in the occupational information supplied in the Dictionary of Occupational Titles
("DOT"). Id. at 13-14. As explained, supra, because I find no error with the ALl's RFC
determination, his assessment of Plaintiffs credibility, or his analysis of the opinion evidence, I
find no error with the ALJ's questioning of the VE in that regard.
Additionally, I find no error in the way the ALJ addressed the Plaintiff s need for
bathroom breaks in the hypothetical questions posed to the VE. Hypothetical questions posed to

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a VE must include all of a claimant's impairments that are supported by the record for the VE's
answer to be considered substantial evidence. Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir.
2004) (internal citations omitted). An ALJ merely must accurately account for the appropriate
degree of a claimant's limitations in formulating hypotheticals for a VE. McDonald v. Astrue,
293 F. App'x 941, 946 (3d Cir. 2008). Here, the ALJ included in his hypothetical questions the
frequency of bathroom breaks that he felt was supported by the record. ECF No.9, 51 (asking
the VE to assume a hypothetical where the individual would have "access to a bathroom for a
brief bathroom break four times per day"); fd. at 21 (in his Opinion, the ALJ concluded that
Plaintiff's allegations related to her irritable bowel syndrome were not supported by the record
because she required no significant treatment for the condition and, contrary to expectations of
one with such a condition, Plaintiff experienced weight gain). There is substantial evidence in
the record to support the ALl's conclusion regarding Plaintiff's need for bathroom breaks.
Consequently, I find the hypothetical questions posed to the VE proper.
Further, because the VE in this case stated that her testimony did not conflict with
definitions provided in the DOT, the ALJ was entitled to rely upon the VE's testimony. ECF No.
9, 52; see also SSR 00-4p; see, e.g., Green v. Astrue, No. 10-468, 2010 WL 4929082, at *6
(Nov. 30, 2010) (relying on Gibbons v. Barnhart, 85 Fed. App'x 88 (loth Cir. 2003) ("The
vocational expert specifically testified that the limitations of simple reading and writing were
consistent with the alternative jobs he identified" and "once the VE stated that he was relying on
the DOT, the ALJ had no further duty to investigate.")).
IV. Conclusion
Based on the evidence of record and the briefs filed in support thereof, I find there is
substantial evidence to support the ALJ's conclusion that Plaintiff is not disabled within the

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meaning of the Social Security Act.

As a result, I DENY Plaintiffs motion for Summary

Judgment, and I GRANT Defendant's motion for Summary Judgment.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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CYNTHIA MARIE DROGUS,
Plaintiff,
v.

CAROLYN W. COLVIN,
Commissioner of
Social Security
Defendant.

Civil Action No. 12-643

AMBROSE, U.S. Senior District Judge
ORDER OF COURT

AND NOW, this Mday of April, 2013, after careful consideration of the submissions
of the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered
that Plaintiffs Motion for Summary Judgment (ECF No. [13]) is DENIED and Defendant's
Motion for Summary Judgment (ECF No. [15]) is GRANTED. In accordance with 42 U.S.C.
§ 405(g), the administrative decision of the Commissioner of Social Security is hereby
AFFIRMED.
BY THE COURT:

~J~

Donetta W. Ambrose
U.S. Senior District Judge

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