PALE v. ASTRUE
Filing
16
MEMORANDUM AND ORDER denying 7 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 3/26/14. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
YANNEPALE,
Plaintiff,
v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 12-1454
MEMORANDUM AND ORDER OF COURT
AND NOW, this
:;;.61&y of March, 2014, upon due consideration ofthe parties' cross-
motions for summary judgment pursuant to plaintiffs request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiff s application for disability
insurance benefits under Title II of the Social Security Act ("Act"), IT IS ORDERED that the
Commissioner's motion for summary judgment (Document No. 12) be, and the same hereby is,
granted and plaintiffs 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 reject or discount any evidence if the ALJ explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999). Where the ALJ's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALl's
decision here because the record contains substantial evidence to support the ALl's findings and
'A072
(Rev. 8/82)
conclusions.
Plaintiff protectively filed his pending application 1 for benefits on July 19, 2011, alleging
a disability onset date of September 9, 2008, due to post-traumatic stress disorder and attention
deficit disorder, as well as a number of physical impairments. Plaintiffs application was denied
initially. At plaintiff s request an ALJ held a hearing on September 16, 2011, at which plaintiff,
represented by counsel, appeared and testified. On March 20,2012, the ALJ issued a decision
finding that plaintiff is not disabled. On August 17, 2012, the Appeals Council denied review
making the ALJ's decision the final decision ofthe Commissioner.
Plaintiff was 31 years old at the time of the ALl's decision and is classified as a younger
person under the regulations. 20 C.F.R. §404.1563(c). He has at least a high school education and
honorably served in the United States Marine Corps. Plaintiff has past relevant work experience
as a security officer and a loss prevention officer, but has not performed any substantial gainful
activity since his alleged onset date.
After reviewing plaintiff's medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiff is not disabled within the meaning ofthe Act.
The ALJ found that while plaintiff suffers from the severe impairments of post-traumatic stress
disorder, attention deficit disorder and a history of drug and alcohol abuse, in remission,2 the
medical evidence does not show that plaintiff s impairments, alone or in combination, meet or
medically equal the criteria of any ofthe impairments listed at Appendix 1 of20 C.F .R., Part 404,
Subpart P.
1
For purposes ofpJaintiffs Title II application, the ALJ found that plaintiff met the disability
insured status requirements of the Act through September 31,2013. CR. 15).
2
The ALl found that plaintiff's physical impairments do not significantly limit his ability to
perform work related activities and therefore are non-severe. (R. 15).
~A072
(Rev. 8/82)
- 2
The ALJ further found that plaintiff retains the residual functional capacity to perform a
full range ofwork at all exertionallevels but with numerous restrictions accounting for the limiting
effects of his mental impairments. 3 A vocational expert identified numerous categories ofjobs
which plaintiff can perform based upon his age, education, work experience and residual functional
capacity, including vehicle cleaner,janitor and night cleaner. Relying on the vocational expert's
testimony, the ALJ found that there are jobs existing in significant numbers in the national
economy that plaintiff can perform. Accordingly, the ALJ concluded that plaintiff is not disabled
under the Act.
The Act defines "disability" 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. §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 incorporating a five-step sequential
eval uation process for determining whether a claimant is under a disabili ty. 4 20 c.P.R. §404 .1520.
3 Specifically, plaintiffis limited to: simple, repetitive tasks that are performed using routine work
processes in a routine work setting; low work stress, defined as work that involves no high production
quotas or close attention to qual ity production standards; he may not engage in teamwork; and, he is limited
to no more than incidental interaction with members of the general public. (R. 17).
The AU must determine: (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; (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. §404.l520; Newell v. Commissioner of Social
Security, 347 F.3d 541,545 (3d Cir. 2003). In addition, when there is evidence ofa mental impairmentthat
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. §404.1520a.
4
~A072
(Rev. 8/82)
-
3
Ifthe 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 asserts that the ALl's decision is not supported by substantial evidence for
a number of reasons: (1) the ALJ improperly evaluated the medical evidence; (2) the ALJ erred by
not finding plaintiff disabled at step 3; (3) the ALJ improperly evaluated plaintiff's credibility;
and, (4) the ALJ erred at step 5 by relying on the vocational expert's response to an incomplete
hypothetical. Upon review, this court is satisfied that the ALJ properly evaluated the evidence and
that all of the ALJ's findings are supported by substantial evidence.
Plaintiff's first argument is that the ALJ improperly evaluated the medical evidence. Under
the Social Security 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, taking into account numerous factors including the opinion's supportability,
consistency and specialization. 20 C.F .R. §404.1527(d). Importantly, the opinion ofany physician
on the issue ofwhat an individual's residual functional capacity is or on the ultimate determination
of disability never is entitled to special significance. 20 C.F.R. §404.1527(e); SSR 96-5p.
Here, the ALJ adhered to the foregoing standards in evaluating the medical evidence. His
decision makes clear that he considered all of the relevant evidence from all medical sources and
provided a detailed analysis of that evidence, setting forth sufficient explanations as to why he
rejected or discounted any such evidence. CR. 18). The court is satisfied that the ALJ's evaluation
of the medical evidence is supported by substantial evidence.
Plaintiff raises numerous specific challenges to the ALJ's evaluation of the medical
evidence which the court now will address. First, he takes issue with the following statement in
the ALJ' s decision relating to plaintiff's July 2009 psychiatric evaluation: "I have assigned a global
~A072
(Rev. 8/82)
- 4
assessment of functioning (GAF) score of 59, indicative of only minor symptoms." (R. 19).
Plaintiff argues that this statement is erroneous and amounts to the ALJ substituting his own
opinion for the medical evidence. See Morales v. Apfel, 225 F .3d 310, 317 (3d Cir. 2000)(ALJ
may not make speculative inferences from medical reports and may not substitute his own lay
opinion for those from qualified medical professionals).
The court is satisfied that the foregoing statement is nothing more than harmless error.
Although the ALJ does state "J have assigned a GAF score of 59 ... ", the evaluation to which the
ALJ is referring reports that plaintiffs then-current GAF score 5 was 59, indicating that it was not
the ALJ but Dr. Howard Steinberg, the author of the report, who assigned plaintiff that score. (R.
279). Moreover, although the ALJ erroneously states that a GAF score of59 is "indicative ofonly
minor symptoms" when such a score actually indicates "moderate" symptoms,6 plaintiff does not
explain how this isolated misstatement alters in any way the ALl's findings as to plaintiff s
residual functional capacity or the
ultimate determination that plaintiff is not disabled.
Accordingly, the ALl's misstatement is deemed harmless. See Fraser v. Astrue, 373 Fed.Appx.
222, 225 (3d Cir. 2010)(erroneous reference in decision harmless where it did not undermine
substantial evidence upon which ALl's opinion rested).
Plaintiff also argues that the ALJ failed to analyze the impact ofplaintiff's fluctuating GAF
scores on his ability to "participate meaningfully in the competitive workforce." This argument
is belied by the record. Although the use of the GAF scale is not endorsed by the Social Security
Administration because its scores do not have any direct correlation to the disability requirements
The global assessment of functioning ("GAF") score considers psychological, social and
occupational functioning on a hypothetical continuum of mental health. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994).
5
A GAF rating of 51 to 60 indicates "moderate" symptoms or "moderate" difficulty in social
or occupational functioning. Id.
6
"'.AO 72
(Rev. 8/82)
- 6
acknowledging that rating in no way suggests that the ALJ found it binding nor that he gave it
more weight than it otherwise was due. Instead, the ALJ properly considered it, along with the
other evidence in the case record, as required under SSR 06-03p, and plaintiff s contention that the
ALJ was improperly swayed by it, or inappropriately "extrapolated" the VA's determination onto
plaintiff s social security application, is unsupported by the record.7
Plaintiff also challenges the ALl's evaluation of the medical evidence at step 3 of the
sequential evaluation process. Specifically, plaintiff alleges that the ALJ improperly rejected the
opinion ofplaintiff s treating psychologist, Mary Niebauer, Ph.D., who opined that plaintiff meets
the requirements of Listing 12.06, and instead chose to give greater weight to the opinion of
Richard A. HeB, Ph.D., a non-examining state agency reviewing psychologist. The court finds no
error in the ALl's analysis of the medical evidence at step 3.
At step 3, the ALJ must determine whether the claimant's impairment matches, or is
equivalent to, one of the listed impairments.
Burnett v. Commissioner of Social Security
Administration, 220 F .3d 112, 119 (3d Cir. 2000). The listings describe impairments that prevent
an adult, regardless of age, education, or work experience, from performing any gainful activity.
Knepp v. Apfel, 204 F.3d 78,85 (3d Cir. 2000); 20 C.F.R. §404.1520(d). "If the impairment is
equivalent to a listed impairment then [the claimant] is per se disabled and no further analysis is
necessary." Burnett, 220 F.3d at 119.
7
In support of his argument, plaintiff points only to the AU's statement that "I observe that in
January 2012, [plaintiff s] treating psychiatrist indicated that he did not believe [plaintiff] is 100%
disabled." (R. 19). Plaintiff argues that the treating psychiatrist's statement merely indicated that plaintiff
was not 100% disabled under the VA standards, and that the AU improperly relied upon that finding in
determining that plaintiff is not disabled under the social security regulations. However, it is clear to the
court that the AU did not view the treating psychiatrist's statement as "binding" but was merely
considering it, along with all ofthe other evidence in the record, in determ ining whether plaintiff is disabled
under the Act, which not only was proper but is required under SSR 06-03p.
~A072
(Rev, 8/82)
- 7
The ALl has the burden to identify the relevant listed impainnent that compares with the
claimant's impainnent and must "fully develop the record and explain his findings at step 3,
including an analysis of whether and why [the claimant's] ... impainnents ... are or are not
equivalent in severity to one of the listed impainnents." Id. at 120, n.2. However, the burden is
on the claimant to present medical findings that show that his impainnent matches or is equal in
severity to a listed impainnent. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
Here, as required, the ALl properly identified Listing 12.06 as the relevant listing that
compares with plaintiffs mental impairments 8 and thoroughly explained why those impainnents,
alone or in combination with plaintiffs other impainnents, do not meet or equal that listing.
CR.
16-17); see Burnett, 220 F.3d at 120, n.2. In particular, the ALl detennined that plaintiff failed
to meet either the liB" or
"c" criteria of Listing 12.06.9
Because Listing 12.06 provides that the
"required level of severity for these disorders is met [only] when the requirements in both A and
B are satisfied, or when the requirements in both A and C are satisfied," (emphasis added), the
ALl concluded that plaintiff does not meet the listing.
Plaintiff, however, argues that the ALl improperly rejected the opinion of Dr. Niebauer,
who opined that plaintiff does meet the requirements of Listing 12.06.
CR. 617), and that, as the
opinion of a treating source, Dr. Niebauer's opinion was entitled to significant, ifnot controlling,
The AU also found that plaintiffs mental impairments do not meet Listings 12.04 or 12.09,
and plaintiff has not challenged the AU's findings as to any other Listing. Accordingly, this court's
analysis focuses solely on whether there is substantial evidence to support the AU's finding that plaintiff
does not meet Listing 12.06.
8
The "8" criteria under 12.06 provide that the mental impairment must result in at least two of
the following: "I. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining
social functioning; or 3. Marked difficulties in maintaining concentration, persistence or pace; or 4.
Repeated episodes of decompensation, each of extended duration." 20 C.P.R., Part 404, Subpart P,
Appendix I, Listing 12.068 (emphasis added). Here, the AU found that plaintiff has mild limitations in
activities of daily living; moderate limitations in both social functioning and concentration, persistence or
pace; and, that he has experienced no episodes of decompensation of extended duration. (R. 16-17).
9
'1I>.A072
(Rev. 8/82)
- 8
weight.1O This argument is without merit.
Here, the ALJ expressly considered Dr. Niebauer's opinion that plaintiff meets Listing
12.06 but rejected that opinion because she "failed to specify how [plaintiff] met the listing." (R.
19). There is no error in this conclusion. Dr. Niebauer's "opinion" that plaintiff meets Listing
12.06 consists solely of her circling the word "does" in a form that simply lists the requirements
of Listing 12.06. There is no explanation as to how plaintiff meets the listing. In fact, although
the form lists the requirements ofthe "A","B" and "c" criteria ofthat listing, Dr. Niebauer did not
indicate in any way which of those requirements plaintiff purportedly meets. Accordingly, the
court finds no error in the ALJ rejecting her opinion that plaintiff meets Listing 12.06.
Plaintiff argues to this court that the ALJ should have read Dr. Niebauer's opinion in
conjunction with the accompanying "medical opinion re: ability to do work-related activities" that
she also submitted on March 12, 2012, (R. 619), and that, read together, the two documents
establish that plaintiffhas marked I! limitations in the areas ofsocial functioning and concentration,
persistence and pace under the B criteria of Listing 12.06. The court finds this contention to be
without merit.
10
Under the Social Security Regulations and the law of this circuit, opinions of treating
physicians are entitled to substantial, and at times even controlling, weight. 20 C.F.R. §404.1527(d)(2);
Fargnoli, 247 F.3d at 33. Where a treating physician's opinion on the nature and severity ofan impairment
is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record, it will be given controlling weight. Id. However,
when a treating source's opinion is not entitled to controlling weight, it is to be evaluated and weighed
under the same standards applied to all other medical opinions, taking into account numerous factors,
including the opinion's supportability, consistency and specialization. 20 C.F.R. §404.1527(d).
11
Where Hmarked" is used as a standard for measuring the degree of limitation, it means more
than moderate but less than extreme. 12.00C. itA marked limitation may arise when several activities or
functions are impaired, or even when only one is impaired, so long as the degree of limitation is such as
to interfere seriously with your ability to function independently, appropriately, effectively and on a
sustained basis. Id.
It
~A072
(Rev. 8/82)
- 9
The accompanying medical opinion relating to plaintiff s ability to do work-related mental
activities upon which plaintiff now relies is in essence a residual functional capacity assessment
that addresses plaintiffs ability to perform more specific work-related mental activities l2 rather
than the broad categories found in the B criteria of Listing 12.06, and there is no medical evidence
in the record from any treating or non-treating source suggesting that plaintiff has marked or
extreme limitations in any of the broad categories necessary to meet those criteria. Accordingly,
even if accepted, the residual functional capacity assessment of Dr. Niebauer would not support
a finding of disabled at step 3 of the sequential evaluation process.
Beyond Dr. Niebauer's properly rejected opinion, there is no other medical evidence in the
record to support a finding that plaintiff has marked or extreme limitations in any area of
functioning. Conversely, the state agency reviewing psychologist, Dr. Heil, found only moderate
difficulties in social functioning and concentration, persistence and pace in concluding that
plaintiff does not meet Listing 12.06. (R. 60). Although plaintiff argues that the ALJ improperly
gave more credence to this report than that of Dr. Niebauer, pursuant to the Regulations, state
agency medical consultants are "highly qualified physicians ... who are also experts in Social
Security disability evaluation." 20 C.F.R. §404.1527(t)(2)(i). Accordingly, while not bound by
findings made by reviewing physicians, the ALJ is to consider those findings as opinion evidence,
and is to evaluate them under the same standards as all other medical opinion evidence. 20 C.F.R.
§404.l527(t)(2)(ii); SSR 96-6p. The ALJ did so here and, having concluded that Dr. Heil' s report
12
A mental residual functional capacity assessment is used at steps 4 and 5 and "requires a more
detailed assessment by itemizing various functions contained in the broad categories found in paragraph
B .... " (ld.) Thus, "[a]n assessment of your RFC complements the functional evaluation necessary for
paragraphs Band C ofthe listings by requiring consideration ofan expanded list ofwork-related capacities
that may be affected by mental disorders when your impairment is severe but neither meets nor is
equivalent in severity to a listed mental disorder." 20 C.F.R., Part 404, Subpart P, Appendix I, 12.00A.
(emphasis added).
.A072
(Rev. 8182)
- 10
was "well supported and consistent with other substantial evidence," he properly gave that opinion
"great weight." (R.19).
In sum, the ALJ did a thorough job in his decision in setting forth the relevant medical
evidence and explaining why he rejected or discounted any evidence. The court has reviewed the
ALJ's decision and the record as a whole and is satisfied that the ALJ's evaluation of the medical
evidence is supported by substantial evidence.
Plaintiff next contends that the ALJ's credibility detennination is not supported by
substantial evidence. Specifically, plaintiff argues that in assessing credibility, the ALJ failed to
adequately take into account plaintiff's exemplary record as a United States Marine. This
argument is without merit.
It is well-settled that a claimant's allegations of pain and other subjective symptoms must
be supported by objective medical evidence, 20 C.F.R. §404.1529(c), and that an ALJ may reject
a claimant's subjective testimony ifhe does not find it credible so long as he explains why he is
rejecting the testimony. Schaudeck v. Commissioner of Social Security, 181 FJd 429,433 (3d
Cir. 1999); see also SSR 96-7p.
Here, the ALJ clearly was aware of plaintiffs distinguished military record and explicitly
acknowledged plaintiff's "distinguished service as a member ofthe United States Marine Corps
during Operation Iraqi Freedom," along with referencing plaintiff's military records contained in
Exhibits 13E and 14E. (R. 18-19). In addition, the ALJ discussed it with plaintiff at the hearing.
(R. 33-34). However, in assessing plaintiffs credibility the ALJ considered the record as a whole,
and, based on his review ofall ofthe evidence, properly concluded that the medical evidence does
not support plaintiffs SUbjective allegations oftotally debilitating pain. The ALJ did a thorough
job in his decision explaining why plaintiff's allegations ofdisabling subjective symptoms are not
""'AO 72
(Rev. 8/82)
- 11
supported by the record, in particular by the objective medical findings or by plaintiffs selfreported activities of daily living. (R. 17-19). Accordingly, plaintiffs distinguished military
service in and of itself is insufficient to overcome the objective evidence refuting plaintiffs
allegations of debilitating limitations.
It also is important to note that the ALl did not find plaintiffs subjective complaints
entirely not credible. Rather, his decision makes clear that, to the extent plaintiffs allegations as
to the limitations arising from his impairments are supported by the medical and other evidence,
those limitations were accommodated in the residual functional capacity finding. Only to the
extent that plaintiff's allegations are not so supported did the ALl find them to be not credible.
The record demonstrates that the ALl adhered to the appropriate standards in evaluating
plaintiffs credibility and it is not this court's function to re-weigh the evidence and arrive at its
own credibility determination.
Rather, this court must only determine whether the ALl's
credibility determination is supported by substantial evidence and the court is satisfied that it is.
Plaintiff's final argument is that the ALl's residual functional capacity finding and resultant
hypothetical to the vocational expert were incomplete because the ALl failed to include a
limitation regarding plaintiffs ability to interact with supervisors. However, it is clear from the
record that the ALl adequately considered all ofthe relevant medical evidence, as well as plaintiffs
reported activities, in assessing plaintiffs residual functional capacity, and that he incorporated into
his finding all of the limitations that reasonably could be supported by the medical and other
relevant evidence. (R. 17-20). The court is satisfied that the ALl's residual functional capacity
finding is supported by substantial evidence as outlined in the decision.
Nor did the ALl error in relying upon the vocational expert's response incorporating only
those limitations set forth in his residual functional capacity finding. A hypothetical to the
~A072
(Rev. 8/82)
- 12
vocational expert must reflect all of the claimant's impairments and limitations supported by the
record. Podedwomy v. Harris, 745 F.2d 210 (3d Cir. 1984). Here, the ALJ properly relied upon
the vocational expert's response to a hypothetical which accounted for all ofplaintiffs impairments
and limitations supported by the record, and the vocational expert's testimony in response to that
hypothetical constitutes substantial evidence supporting the ALl's finding that plaintiff retains the
ability to perform work existing in significant numbers in the national economy and therefore is
not disabled within the meaning of the Act.
Moreover, the more restrictive limitations advanced by plaintiff, including the purported
inability to interact appropriately with supervisors, were not supported by the objective medical
evidence, but only by plaintiff's subjective testimony, which, as already discussed, the ALl
properly found to be not entirely credible. As a hypothetical to the vocational expert must reflect
only those impairments and limitations supported by the record, the ALJ did not err in rejecting
a response to a hypothetical incorporating limitations not supported by the medical evidence. See
Jones v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004) (ALJ has authority to disregard vocational
expert's response to hypothetical inconsistent with evidence).
After carefully and methodically considering all of the medical evidence of record and
plaintiff's testimony, the ALJ determined that plaintiff is not disabled within the meaning of the
Act. The ALl'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
~A072
(Rev. 8/82)
13
cc;
Glenn S. Sinko, Esq.
Sinko Zimmennan, LLC
Suite 120 One Adams Place
300 Seven Fields Blvd.
Seven Fields, PA 16046
Colin Callahan
Assistant United States Attorney
U.S. Post Office & Courthouse
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
"""AO 72
(Rev 8/82)
- 14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?