HAZLETT v. COLVIN
Filing
15
MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 8/4/14. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSHUA ROBERT HAZLETT,
)
)
Plaintiff,
)
Civil Action No. 2:13-cv-00538
)
v.
)
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
)
)
)
)
)
Judge Mark R. Hornak
Defendant.
MEMORANDUM OPINION
Mark R. Hornak, United States District Judge
I.
INTRODUCTION
Plaintiff Joshua Hazlett ("Mr. Hazlett") brought this action pursuant to 42 U.S.C. §§
405(g) and 1383 (c), for judicial review of the final determination of the Commissioner of Social
Security ("Commissioner"), who found that he was not eligible for supplemental social security
income ("SSI") under Title XVI of the Social Security Act (HAct"), 42 U.S.C. §§ 1381-1383(f).
II.
BACKGROUND
A.
Facts
Mr. Hazlett was born on September 28, 1991. ECF No. 6-2 at 18. He dropped out of
school before completing the 11 th grade and has no past relevant work experience. Id. at 23, 26.
He alleges disability as of December 1, 2009 due to a number of mental impairments, including
Asperger's syndrome ("Asperger's"), attention deficit hyperactivity disorder ("ADHD"),
obsessive-compulsive disorder ("OCD"), and various manifestations of depression and anxiety.
The record reflects that Plaintiff has not engaged in substantial gainful work activity since
alleging disability in December 2009.
B.
Procedural History
Plaintiff initially filed an application for childhood SSI through his mother on July 26,
1995, in which he claimed total disability since July 1, 1995. ECF No. 6-3 at 65-69. On August
18, 1995, a state agency disability examiner determined that Mr. Hazlett's ADHD was
functionally equal to Listing 12.11 under the rules for determining disability in children and
granted him SSI benefits based on that disability. ECF No. 6-2 at 50-52. Mr. Hazlett continued
to receive such benefits until December 14, 2009, when the Commissioner determined that as of
December 1, 2009 (following Mr. Hazlett's 18 th birthday), pursuant to the rules for determining
disability in adults, he was no longer disabled. Id. at 15. A state agency disability hearing
officer upheld that determination, ECF No. 6-3 at 42-47, and Mr. Hazlett filed a written request
for a hearing on January 28, 2011. ECF No. 6-2 at 15.
The administrative hearing was held on October 19, 2011 before Administrative Law
Judge David Brash ("ALJ"). /d. Plaintiff was represented by counsel, and he and his mother
testified at the hearing. Id. Fred Monaco, an impartial vocational expert ("VE"), also testified at
the hearing. Id.
On November 14, 2011, the ALJ rendered a decision unfavorable to Mr.
Hazlett, finding that he retained the ability to perform a full range of work at all exertional levels
with a number of nonexertional limitations and therefore was not "disabled" within the meaning
of the Act. Id. at 15-27.
The ALJ's decision became the final decision of the Commissioner on February 20,2013,
when the Appeals Council denied Plaintiffs request to review the decision of the ALI Id. at 5
7. On April 15, 2013, Mr. Hazlett filed his Complaint in this Court, seeking judicial review of
2
the decision of the ALl
ECF No.3.
The parties have filed cross-Motions for Summary
Judgment, ECF Nos. 10 and 12, and briefs in support. ECF Nos. 11 and 13. Mr. Hazlett has also
filed a response to the Commissioner's brief. ECF No. 14. He contends that the ALJ erred in
four respects
by failing to find that his condition met or equaled one of the Listed Impairments
found at 20 C.F.R. § 404, subpt. P, app. 1, by improperly weighing and misinterpreting the
medical opinions in the record, by erroneously determining his Residual Functional Capacity
("RFC"), and in disregarding the testimony of the VE and relying on an incomplete hypothetical
question. The Commissioner contends that the decision of the ALJ should be affirmed, as it is
supported by substantial evidence. The Court agrees with the Commissioner and will therefore
grant the Motion for Summary Judgment filed by the Commissioner and deny the Motion for
Summary Judgment filed by the 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. § 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 United States Supreme Court has defined "substantial
evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).
It consists of more than a
scintilla of evidence, but less than a preponderance. Thomas v. Comm'r of Soc. Sec., 625 F.3d
798, 800 (3d Cir. 2010).
In situations where a claimant files concurrent applications for SSI and DIB, courts have
consistently addressed the issue of a claimant's disability in terms of meeting a single disability
3
(..,
standard under the Act. See Burns v. Barnhart, 312 F .3d 113, 119 n.l (3d. Cir. 2002) ("This test
[whether a person is disabled for purposes of qualifying for SSI] is the same as that for
determining whether a person is disabled for purposes of receiving social security disability
benefits [DIB]. Compare 20 C.F.R. § 416.920 with § 404.1520."); Sullivan v. Zebley, 493 U.S.
521,525 n.3 (1990) (holding that regulations implementing the Title II [DBI] standard, and those
implementing the Title XVI [SSI] standard are the same in all relevant aspects.); Morales v.
Apfel, 225 F 3d 310, 315-16 (3d. Cir. 2000) (stating claimants burden of proving disability is the
same for both DIB and SSI).
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. Comm 'r ofSoc.
Sec., 347 F.3d 541,545-46 (3d Cir. 2003) (quoting Burnett v. Comm'r o/Soc. Sec., 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. Massanari, 247
F3d 34,38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(I) (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. § 404
4
subpt. P, app. 1. See Heckler v. Campbell, 461 U.S. 458 (1983); Newell, 347 F.3d at 545-46;
Jones v. Bc:rnhart, 364 F.3d 501, 503 (3d Cir. 2004); or,
(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 detenninable 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 perfonn 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, 312 F.3d at 119.
Where a claimant has multiple impainnents which may not individually reach the level of
severity necessary to qualify anyone impainnent for Listed Impainnent status, the
Commissioner nevertheless must consider all of the impainnents in combination to detennine
whether, collectively, they meet or equal the severity of a Listed Impainnent. Diaz v. Comm'r of
Soc. Sec., 577 F.3d 500, 502 (3d Cir. 2009); 42 U.S.C. § 423(d)(2)(C) ("in detennining an
individual's eligibility for benefits, the Secretary shall consider the combined effect of all of the
individual's impainnents without regard to whether any such impainnent, if considered
separately, would be of such severity").
5
In this case, the ALl detennined that Mr. Hazlett was not disabled within the meaning of
the Act at the fifth step of the sequential evaluation process. The ALl concluded that while Mr.
Hazlett did have a number of severe impainnents
depressive disorder, OCD, and anxiety disorder
Asperger's, ADHD, learning disorder, major
he did not have an impainnent or combination
of impainnents that "met or medically equaled" a Listed Impainnent during the relevant period.
ECF No.
6~2
at
18~21.
In his findings, the ALl explicitly considered Listings 12.02 (organic
mental disorders), 12.04 (affective disorders), 12.06 (anxiety~related disorders), and 12.10
(autistic disorder and other pervasive developmental disorders). !d. at 19.
The ALl then found that Mr. Hazlett retained the RFC to perfonn a full range of work at
all exertionallevels, with a number of specific nonexertional limitations:
1) He was limited to understanding, remembering, and carrying out simple instructions
and perfonning simple, routine tasks;
2) He could not have work~related contact with co-workers and the public, and could
have only occasional supervision, such that his work would be essentially isolated;
and
3) He was limited to a "low stress work environment" - in other words, no production
rate pace work, but instead goal-oriented work with only occasional and routine
changes in the work setting.
ld. at 21. From the testimony of the VE, the ALl next concluded that although Mr. Hazlett had
no past relevant work, jobs existed in significant numbers in the national economy that an
individual with his age, education, work experience, and RFC could perfonn
including bench
assembly worker, light hand packer, and building cleaner. !d. at 26. On that basis, the ALl
found that Mr. Hazlett was capable of making a successful adjustment to work during the
relevant period and therefore was not disabled within the meaning of the Act. !d. at 26~27.
6
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 Med. Crr.
v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986), cerro 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'r of Soc. Sec.
Admin., 181 F.3d 429, 431 (3d Cir. 1999).
Mr. Hazlett advances four principal arguments for granting summary judgment in his
favor. First, he argues that the ALJ erred in determining that his condition did not meet or equal
in severity Listings 12.04, 12.06, and/or 12.10. Second, he alleges that the ALJ misconstrued the
opinion of his treating psychiatrist and erroneously gave little weight to the opinions of his
therapist and nurse practitioner and portions of the opinion of his consultative psychological
examiner. Third, Mr. Hazlett contends that the ALJ erred in determining his RFC by failing to
adequately account for his mental health limitations. Finally, he argues that the ALJ improperly
disregarded portions of the VE's testimony and relied on a hypothetical question that did not
accurately encompass all of his mental health limitations. The Court will address each issue in
tum.
1. The ALJ's Determination that Plaintiff's Impairments did not Meet or
Equal a Listed Impairment
At step three, the claimant bears the burden of presenting medical evidence to show that
his impairment matches a Listing or is equal in severity to a Listed Impairment. Burnett
V.
Comm'r ofSoc. Sec. Admin., 220 F 3d 112, 120 n.2 (3d Cir. 2000) (citing Williams v. Sullivan,
970 F .2d 1178, 1186 (3d Cir. 1992». The Supreme Court has defined this burden:
7
For a claimant to show that his impairment matches a listing, it must meet all of
the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify. For a claimant to qualify for
benefits by showing that his unlisted impairment, or combination of impairments,
is "equivalent" to a listed impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed impairment. A claimant
cannot qualify for benefits under the "equivalence" step by showing that the
overall functional impact of his unlisted impairment or combination of
impairments is as severe as that of a listed impairment.
Sullivan v. Zebley, 493 U.S. 521, 530-32 (1990). The Court concludes that substantial evidence
supported the ALl's determination that Mr. Hazlett's impairments did not, alone or combined,
match or equal Listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), and 12.10
(autistic disorder and other pervasive developmental disorders). In his decision, the ALl
explicitly considered whether Mr. Hazlett's mental impairments met those Listings. All three
Listings require a level of severity that is satisfied when a set of requirements in paragraphs A
(..,
and B of those Listings are present, or when the requirements in paragraph C are met. See 20
C.F.R. § 404, subpt. P, app. 1.
The ALl concluded that Mr. Hazlett met the paragraph A requirements of each such
Listing. ECF No. 6-2 at 19. However, he determined that Mr. Hazlett's impairments did not
meet the paragraph B criteria. Id. at 20. The requirements for paragraph B are identical for all
three Listings and read as follows:
B. Resulting in at least two of the following:
1. 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.F.R. § 404, subpt. P, app. 1, Listings 12.04(B), 12.06(B), and 12.IO(B).
8
The ALJ devoted a full paragraph to each paragraph B factor. He found in accordance
with the report of Dr. Linda Humphreys ("Dr. Humphreys"), Mr. Hazlett's treating psychiatrist,
that Mr. Hazlett was only moderately restricted in activities of daily living and in maintaining
social functioning. ECF No. 6-2 at 19-20. Although Dr. Humphreys indicated that Mr. Hazlett
had "constant" deficiencies in maintaining concentration, persistence, and pace, the ALJ
concluded that he only had moderate limitations in that area. !d. at 20. The ALJ supported his
conclusion with the report of Dr. Manella Link ("Dr. Link"), a state agency psychiatric examiner
who reviewed Mr. Hazlett's records and found that he had moderate limitations in maintaining
concentration, persistence, and pace. Id. He also included citations from Mr. Hazlett's own
testimony, including that he plays video games "for weeks at a time with the purpose of beating
them," reads animated books "from cover to cover and watches whole movies and television
programs," and has been able to complete a job application. I Id.
I Mr. Hazlett argues that because Dr. Humphreys found him to have "constant" deficiencies in maintaining
concentration, persistence, and pace, and Dr. Julie Uran, his psychiatric consultative examiner, determined that he
had marked limitations in that respect, the AU erred in accepting the findings of a non-examining physician over
those of two examining physicians, one of whom treated him over a significant period of time. "Although treating
and examining physician opinions often deserve more weight than the opinions of doctors who review records, see,
e.g., 20 C.F.R. § 404. I 527(d)(1 )-(2), '[t]he law is clear ... that the opinion of a treating physician does not bind the
AU on the issue of functional capacity." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)
(quoting Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 20 II ». "State agent opinions merit significant
consideration as well." Id (citing SSR 96-6p). When a contlict in the medical evidence exists, "the AU may choose
whom to credit but 'cannot reject evidence for no reason or for the wrong reason.'" Plummer v. Apfel, 186 F.3d
422,429 (3d Cir. \999) (internal citation omitted). "The AU must consider all the evidence and give some reason
for discounting the evidence she rejects." Id.
Here, the AU chose to credit Dr. Link's opinion instead of those of Dr. Humphreys and Dr. Uran on the sole issue
of the degree of Mr. Hazlett's limitations in maintaining concentration, persistence, and pace, and supported his
choice with specific testimony from Mr. Hazlett indicating that when he desired, he could maintain those mental
faculties for sustained periods of time. The Court therefore concludes that the AU's decision in that respect was
supported by substantial evidence. Further, even if the AU did err in failing to find that Mr. Hazlett had marked
limitations in this area, because there is no credible medical evidence that he met any of the other paragraph B
criteria, such error would not have affected the AU's determination as to the Listings and thus would not warrant
9
As to repeated episodes of decompensation, the AU found that Mr. Hazlett had not
experienced any. ld. Mr. Hazlett points out that Dr. Humphreys reported he has suffered from
"repeated" such episodes.
ECF No. 6-13 at 37.
To satisfy the requirements for "repeated
episodes of decompensation, each of extended duration," a claimant must demonstrate:
Exacerbations or temporary increases in symptoms or signs accompanied by a
loss of adaptive functioning, as manifested by difficulties in performing activities
of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace. Episodes of decompensation may be demonstrated by an
exacerbation in symptoms or signs that would ordinarily require increased
treatment or a less stressful situation (or a combination of the two). Episodes of
decompensation may be inferred from medical records showing significant
alteration in medication; or documentation of the need for a more structured
psychological support system (e.g., hospitalizations, placement in a halfway
house, or a highly structured and directing household); or other relevant
information in the record about the existence, severity, and duration of the
episode.
Gibson v. Colvin, 2013 WL 4778794, at *15-16 (citing 20 C.F.R. § 404, subpt. P, app. 1, Listing
12.00(C)(4)). To be "repeated," the claimant must have experienced three such episodes within
one year, or on an average of once every four months, with each episode lasting for at least two
weeks. 20 C.F.R. § 404, subpt. P, app. 1, Listing 12.00(C)(4). Nowhere in Dr. Humphreys'
report, or anywhere else in the record for that matter, is there medical evidence of multiple, twoweek-plus episodes requiring increased treatment for Mr. Hazlett or a less stressful situation,
significant alterations in his medication, or hospitalizations or other structural living environment
changes, all occurring within a year or on a four-month average. In fact, the record generally
reflects that Mr. Hazlett did not treat with his therapists and psychiatrist on a consistent basis and
often missed appointments, regularly failed to take his medications, and was more or less given
remand on such grounds. See 20 C.F.R. § 404, subpt. P, app. 1, Listings 12.04(8), 12.06(8), and 12.10(8); Sullivan
v. Zebley, 493 U.S. 521, 530-32 (1990).
10
freedom at home to go about his business as he pleased? See ECF No. 6-2 at 22-23; ECF No. 6
14 at 59-62.
Mr. Hazlett and his mother testified about a history of regular "blackouts," during which
he allegedly destroys various items of personal property and later cannot remember doing so.
See ECF No. 6-14 at 47-49,62-63. But those would not count as episodes of decompensation, as
Mr. Hazlett has not identified any evidence demonstrating that the "blackouts" last any more
than a few hours or necessitate any kind of change in his environment, treatment, or medication.
Further, Mr. Hazlett cites to no medical evidence of such "blackouts," only to his and his
mother's testimony. Accordingly, the Court concludes that the ALJ's finding that the record
showed no episodes of decompensation of extended duration is supported by substantial
evidence.
The AU also explicitly considered the paragraph C criteria for each of Listings 12.04,
12.06, and 12.10, finding that the medical evidence of record failed to demonstrate that Mr.
Hazlett met any of those criteria. Mr. Hazlett confines his argument to whether he met the
paragraph A and B criteria for such Listings. Therefore, the Court will not further address the
paragraph C criteria. See Warren G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir.
1999) (an issue is waived if not raised in a party's opening brief). Because the Listings are
strictly construed against claimants, Lee v. Astrue, 2007 WL 1101281, at *4 (E.D. Pa. Apr. 12,
2007), and Mr. Hazlett failed to present medical findings meeting all of the specified criteria of
the Listings in question, the ALJ's decision that his impairments did not meet or equal a Listed
Impairment was supported by substantial evidence.
2 The record does show one two-week hospitalization at Clarion Psychiatric Hospital in 2002, after Mr. Hazlett
threatened his mother with a knife. See ECF No. 6-12 at 41. However, since this Court is reviewing the ALJ's
determination of whether Mr. Hazlett was disabled as of December 1,2009, that episode is not relevant.
11
2. The ALJ's Weighing of the Relevant Medical Opinions
A "cardinal principle" of disability determinations is that the ALJ must ordinarily give
the medical opinion of a treating physician substantial weight. Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000). Under the "treating physician doctrine," "a court considering a disability
benefits claim must give greater weight to the findings of a treating physician than to the findings
of a physician who has examined the claimant once or not at all." Mason v. Shalala, 994 F .2d
1058, 1067 (3d Cir. 1993). The ALJ must give a treating physician's opinion controlling weight
if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the claimant's] case record." Fargnoli
v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). An ALJ may only reject a treating physician's
assessment on the basis of contradictory medical evidence, not on speculation, credibility
judgments, or lay opinion. Id.
As Mr. Hazlett's treating psychiatrist and a medical doctor, Dr. Humphreys is an
"acceptable medical source" whose opinion is normally entitled to substantial or even controlling
weight. 20 C.F.R. § 416.913(a)(2). In fact, the ALJ explicitly gave her opinion substantial
weight and found it to be supported by and consistent with the rest of the record. ECF No. 6-2 at
23-24. Mr. Hazlett argues, however, that the ALJ misconstrued a crucial part of Dr. Humphreys'
OpInIOn.
In her report, Dr. Humphreys answered "yes" when directly asked, "In your opinion is
Joshua Hazlett able to obtain and sustain full-time employment?" ECF No. 6-13 at 33. By way
of explanation, she added, "Eventually he may be able to in a structured environment with
minimal interactions. We find it diilicult to identify such a young person as being 'unable' to
work.
Josh has limitations, but it is still possible to learn the skills necessary to sustain
12
employment." Id. Mr. Hazlett argues those expository comments show that he cannot currently
work, but may be able to at some point in the future. His argument overlooks two important
facts. First, Dr. Humphreys indisputably indicated that Mr. Hazlett is able to obtain and keep a
full-time job by checking "yes" in response to that question. Second, as the ALJ noted in his
opinion, Dr. Humphreys and Mr. Hazlett's therapist, Katie Moore, further reported that he "balks
at firmly set expectations, which is demonstrated by his dropping out of school. Based upon
their records and reports, they apparently reached a frustration level with [his] non-compliance,
but their notes do not indicate that the claimant could not comply with treatment, rather, that he
chose not to comply." ECF No. 6-2 at 23. On that basis, the Court concludes that the ALl's
decision to accord substantial weight to the opinion of Dr. Humphreys, and the manner in which
he construed that opinion, was supported by substantial evidence.
Mr. Hazlett also contends that the ALJ erred in giving little weight to the opinion of Dr.
Julie Uran ("Dr. Uran"), his consultative psychological examiner, as to his mental RFC, and to
the opinions of Kevin Porneluzi ("Mr. Porneluzi") and Lynn Mainolfi ("Ms. Mainolfi"), his
therapist and nurse practitioner at Kids Count Family Psychological Associates. While the ALJ
gave substantial weight to Dr. Uran's written report, he noted that her checklist opinion of Mr.
Hazlett's mental RFC was internally inconsistent in that she found him to have no difficulty
dealing with simple instructions but marked limitations in following detailed instructions,
interacting with others, and dealing with work related stress. Id. at 24. The Court has already
discussed how the ALJ properly gave greater weight to the opinions of Dr. Humphreys and Dr.
Link on this issue, supra p. 9 and n.1, and the ALJ further supported his decision by citing to Dr.
Uran's global assessment functioning ("GAF") score of 55 for Mr. Hazlett, indicating "only
13
c...
moderate mental health symptoms." Id. The ALJ therefore did not err in failing to give Dr.
Uran's mental RFC findings more substantial weight.
As for Mr. Pomeluzi and Ms. Mainolfi, who completed a questionnaire and psychiatric
activities assessment indicating that Mr. Hazlett was disabled for a number of reasons, see ECF
No. 6-14 at 1-17, the ALJ correctly recognized that therapists and nurse practitioners are not
acceptable medical sources that can provide evidence to establish an impairment. ECF No. 6-2
at 24; 20 C.F.R. § 416.913(a). Instead, they are classified as "other sources," whose opinions the
ALJ may use to show the severity of an impairment and how it affects a claimant's ability to
work. 20 C.F.R. § 416.913(d). While the ALJ may consider such opinions along with all of the
other evidence presented by the claimant, disability eligibility cannot solely rest upon them. 3
Hartranft v. Apfel, 181 F.3d 358,361 (3d Cir. 1999) (citing 20 C.F.R. § 416.913(e)(3)). The
ALJ explained that the report submitted by Mr. Pomeluzi and Ms. Mainolfi contradicted the
findings of Dr. Humphreys and was based upon a brief three-month treatment history. ECF No.
6-2 at 24. Therefore, the Court concludes that he did not err in giving their opinions "only some"
weight.
3. The ALJ's Residual Functional Capacity Determination and Hypothetical
Questions
Mr. Hazlett finally contends that the ALJ's RFC assessment and the hypothetical question
he posed to the VE were incomplete because the ALJ did not fully accommodate his mental
limitations in either and ignored testimony from the VE indicating that he would not be able to
find full-time employment with such limitations.
The ALJ concluded that Mr. Hazlett's
The fact that those opinions are considered persuasive at best discredits Mr. Hazlett's argument that the AU
should not have given great weight to Dr. Link's report because she did not have Mr. Porneluzi and Ms. Mainolfi's
report to consider. The Court finds that argument to be unavailing, since their opinions cannot conclusively
establish an impairment.
3
14
(."
medically determinable impairments could reasonably be expected to cause his alleged
symptoms. Id. at 22. The ALl was then required to assess the intensity, persistence, and limiting
effects of Mr. Hazlett's symptoms and determine the extent to which they impaired his ability to
work. Hartranft, 181 F.3d at 362.
He found that Mr. Hazlett's statements concerning the
intensity, persistence, and limiting effects of his symptoms were not fully credible, giving a
thorough and comprehensive explanation of Mr. Hazlett's complaints, the contrary evidence in
the record, and the weight he gave to each medical opinion and hearing witness, ultimately
concluding that Mr. Hazlett "has not generally received the type of medical treatment one would
expect for a totally disabled individual." ECF No. 6·2 at 22-26. He incorporated the mental
limitations he did find credible into Mr. Hazlett's RFC, restricting him to jobs with simple
instructions, simple, routine tasks, no work-related contact with co·workers or the public, only
occasional supervision, and a low stress work environment. [d. at 21. Therefore, the Court
concludes that the ALl's RFC determination was supported by substantial evidence.
As to the ALl's questioning of the VE, Mr. Hazlett accurately points out that his lawyer
and the ALl had a lengthy back-and-forth with the VE about the percentage portion of a work
day that an employee with his RFC could be off·task and still maintain employment. After the
ALl posed two hypotheticals encompassing the RFC he eventually determined for Mr. Hazlett,
he posed a third question asking the VE to "additionally assume that the individual would be off
task no less than 25 percent of each workday" or "would be absent at least one full day per work
week." ECF No. 6-14 at 75-76. The VE responded that no occupations would be available in
either circumstance, later clarifying that in terms of attendance, an employee could only miss one
day per month at a maximum and expect to retain his job. Id. at 76-77. In response to a question
from Mr. Hazlett's attorney, the VE then testified that if an individual was off task 15 percent of
15
the time, he would not be employable. Id. at 77. The VE also admitted that if an individual were
to act in the manner that Mr. Hazlett and his mother testified about regarding his "blackouts," he
would not be employable either.
!d.
The VE could not give an exact percentage that an
individual could be off task and remain employed, testifying instead that such a number varied
from employer to employer but generally reflected a low level of tolerance for such behavior,
and was much lower than either 25 or 15 percent. Id. at 76-80.
According to Mr. Hazlett, all of this demonstrates that the ALl knew that he would be off
task too often during work days, miss too many days of work, and act out at work too much to be
employed, and failed to properly rely on such evidence and VE testimony indicating that he
could not achieve substantial gainful employment. However, while ALls often pose a number of
hypothetical questions to the VE, the VE's testimony "may only be considered for purposes of
determining disability if the question accurately portrays the claimant's individual physical and
mental impairments." Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). "Simply
because a hypothetical was posed does not mean that there was sufficient evidence to support it;
the ALl ultimately relies upon only credible, medically established limitations." Menuto v.
Astrue, 2012 WL 2594339, at *9 (W.D. Pa. June 13,2012) (citing Rutherford v. Barnhart, 399
F.3d 546, 554 (3d Cir. 2005)). The ALl's first two hypotheticals were supported by medical
evidence in the record.
Mr. Hazlett proffers no specific medical evidence to support the
inferences that he would be off task for a certain portion of each work day or absent for at least a
day per month.
Additionally, the nonexertional limitations the ALl posed in his first two hypotheticals
and ultimately adopted in his RFC are sufficient to account for the mental limitations that are
adequately supported by medical evidence in the record.
16
Importantly, because the ALl
\..
concluded that Mr. Hazlett was moderately limited in maintaining concentration, persistence, and
pace, he constrained Mr. Hazlett to jobs with simple instructions, simple, routine tasks, little
social interaction, and low stress. ECF No. 6-2 at 23-24. The Third Circuit, and this Court, have
held that such limitations in an RFC and VE hypothetical are adequate to accommodate such
limitations. See McDonald v. Astrue, 293 F. App'x 941,946-47 (3d Cir. Sept. 26, 2008); .lVfenkes
v. Astrue, 262 F. App'x 410, 412-13 (3d Cir. Jan. 30, 2008); Menuto v. Astrue, 2012 WL
2594339, at *9 (W.D. Pa. June 13, 2012); Haines v. Astrue, 2012 WL 1069987, at * 1 n.1 (W.D.
Pa. Mar. 29, 2012); Grimm v. Astrue, 2013 WL 24670, at * 1 n.l (W.D. Pa. Jan. 2,2013); Stiteler
v. Comm'r o/Soc. Sec., 2013 WL 1327236, at *1 n.l (W.D. Pa. Apr. 1,2013); but see Demacio
v. Comm'r o/Soc. Sec., 2014 WL 1278086, at *14 (W.D. Pa. Mar. 27, 2014) (finding that
limitation to simple, routine tasks was not sufficient to accommodation moderate limitations in
concentration, persistence, and pace where VE testified that hypothetical employers would have
no tolerance for being off task during the work day).
Further, in her mental RFC report, which the ALJ appropriately gave great weight in his
opinion, Dr. Link opined that Mr. Hazlett "would be able to make simple decisions. Moreover,
he can sustain an ordinary routine without special supervision ... [t]he claimaint is able to meet
the basic mental demands of competitive work on a sustained basis despite the limitations
resulting from his impairments." ECF No. 6-13 at 17. It is therefore plain to the Court that the
ALl's RFC and his first two VE hypotheticals fairly encompassed all of Mr. Hazlett's individual
mental impairments and thus were supported by substantial evidence, see Baldwin v. Colvin,
2014 WL 241755, at *7 (W.D. Pa. Jan. 22, 2014), and that he properly disregarded the later
hypotheticals, which were not supported by credible, medically established evidence.
17
IV.
CONCLUSION
It is undeniable that Mr. Hazlett has a number of impainnents, and this Court is
sympathetic and aware of the challenges he 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 Mr. Hazlett is not disabled within
the meaning of the Social Security Act, and that he is able to perfonn a wide range of work at all
exertionallevels.
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.
Mark R. Hornak
United States District Judge
Dated: August 4,2014
cc: All Counsel of Record
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