REBOSKY v. COLVIN et al

Filing 15

ORDER granting in part and denying in part 7 Motion for Summary Judgment; denying 13 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/24/14. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL REBOSKY,

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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 13-623

AMBROSE, Senior District Judge

OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 7 and
13). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 8 and 14). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am granting in part and denying in part Plaintiff’s Motion for Summary Judgment (ECF No. 7) and
denying Defendant’s Motion for Summary Judgment. (ECF No. 13).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (ACommissioner@) denying his applications for disability insurance benefits and
supplemental security income pursuant to the Social Security Act (AAct@).

Plaintiff filed

applications for benefits on September 21, 2010, alleging he had been disabled since May 1,
2006. (ECF Nos. 6-5, pp. 10, 14).

Administrative Law Judge (“ALJ”), Barbara Artuso, held a

hearing on October 21, 2011. (ECF No. 6-2, pp. 26-53). On January 27, 2012, the ALJ found
that Plaintiff was not disabled under the Act. (ECF No. 6-2, pp. 11-23). After exhausting all
administrative remedies, Plaintiff filed this action.

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The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 7 and 13).
The issues are now ripe for review.
II. LEGAL ANALYSIS
A. STANDARD OF REVIEW
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 Amore 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 (E.D. Pa. 1998). Where the ALJ'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 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 social security benefits, the plaintiff must demonstrate that he 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. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
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. '404.1520(a).

The ALJ must

determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,

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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., appx. 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. '404.1520.

The 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). Id.
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).
B.

RESIDUAL FUNCTIONAL CAPACITY (“RFC”)1

Plaintiff argues that the ALJ’s RFC finding is not supported by substantial evidence.
(ECF No. 8, pp. 15-18). More specifically, Plaintiff first argues that the ALJ erred in ignoring the
findings and conclusions about Plaintiff’s inability to perform essential job functions provided by
Dr. Lindsey Groves, an examining psychological consultant. Id. at p. 15. Acknowledging that
the ALJ did discuss portions of Dr. Groves’ opinions, Plaintiff submits that the ALJ failed to

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RFC refers to the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a). The assessment must be based upon all of the relevant evidence, including the medical
records, medical source opinions, and the individual’s subjective allegations and description of her own
limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The final responsibility for determining a
claimant's RFC is reserved to the Commissioner, who will not give any special significance to the source of
another opinion on this issue. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2).

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discuss whether she accepted, rejected or contradicted Dr. Groves’ opinion that Plaintiff had the
poor ability to follow work rules, to relate to co-workers, to use judgment, to interact with
supervisors and to deal with work stressors. Id. After a review of the record, I agree.
An ALJ must set forth the reasons for crediting or discrediting relevant or pertinent medical
evidence. Burnett v. Comm’er of SS, 220 F.3d 112, 121-22 (3d Cir. 2000). “’In the absence of
such an indication, the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.’” Id., quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
Without the same, a reviewing court cannot make a proper determination. Id. If evidence is not
pertinent, relevant nor probative, however, an ALJ need not discuss it. Johnson v. Comm’er of
SS, 529 F.3d 198, 204 (3d Cir. 2008). Additionally, an ALJ may reject relevant evidence without
explanation when there is overwhelming contrary evidence in the record, thereby rendering the
unexplained evidence irrelevant. Id.
In this case, Dr. Groves’ opinions were neither lacking in probative value nor overwhelmed
by countervailing evidence. (ECF No. 6-13, pp. 57-67). At the time of the ALJ’s decision, Dr.
Groves’ examination report was the most recent assessment of Plaintiff’s mental limitations
supplied by an examining source. Id. Dr. Groves indicated that Plaintiff had poor and/or no
ability to follow numerous essential job functions and that Plaintiff had fair ability (defined as
“seriously limited but not precluded”) to perform in several other essential jobs functions. (ECF
No. 6-13, pp. 64-66). Further, Dr. Groves stated that Plaintiff is “[s]ignificantly unable to get
along with others. Had abusive childhood with early onset of drug abuse, behavioral issues, and
mood disorder. Very low functioning.” Id. at 65. She also stated that Plaintiff has “severe and
chronic mental illness compounded by numerous head injuries and substance abuse.” Id. at 66.
Perhaps in an effort to reject this, although I am not sure, the ALJ states that “claimant’s
treating mental health providers have reported generally unremarkable mental status

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examinations, and have assessed the claimant with GAF2 scores of 60 and 70. (Exhibits 9F and
15F).” (ECF No. 6-2, p. 20). Exhibit 15F indicates on October 12, 2010, that Plaintiff’s GAF
score is 70. However, on October 11, 2010, Plaintiff was assigned a GAF of 55 from the same
medical source. (ECF No. 6-12, pp. 28, 37). Exhibit 9F indicates that on July 16, 2009, Plaintiff
had a GAF of 60 (along with problems related to the social environment and occupational
problems). (ECF No. 6-11, p. 36). GAF scores of 51-60 indicate moderate symptoms and
difficulty in social, occupational, or school functioning. (ECF No. 6-12, p. 28). Based on the
same, I am unsure if the use of this information is a rejection of Dr. Groves’ opinion which is
consistent with GAF scores of 60 or below. In fact, as the ALJ points out, Dr. Groves assessed
Plaintiff on October 3, 2011, as having a GAF of 48. (ECF No. 6-13, p. 60). The ALJ does not
explain how she reconciles this information. Thus, I am unable to tell if the ALJ forgot to include
these limitations or if she rejected portions of Dr. Groves’ opinion, which she is entitled to do, but
then she must explain her reasoning for doing so, which she did not do. The failure to do the
same prohibits me from conducting a proper and meaningful review. Therefore, I find that the
ALJ has erred in this regard and remand is required for clarification.
Plaintiff also argues that the ALJ erred in in failing to submit Plaintiff’s mental limitations in
social functioning and in concentration, persistence or pace to the vocational expert. (ECF No.
8, p. 16). An ALJ is required to accept only hypothetical questions which accurately reflect a
plaintiff’s impairments. See, Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Since I have found that remand is warranted as set
forth above, remand is similarly warranted on this basis as well.

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A GAF score is used to report an individual's overall level of functioning with respect to psychological,
social, and occupational functioning. The GAF scale ranges from the lowest score of 1 to 100, the highest
score possible. The GAF score considers “psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders,
(“DSM–IV TR”) 34 (4th ed. 2000).

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Plaintiff additionally argues that the ALJ mischaracterized Dr. Jabbour’s functional
capacity limitations as “largely normal” when Dr. Jabbour concluded that Plaintiff could only
frequently lift and carry 2-3 pounds and occasionally lift and carry ten pounds, standing and
walking was limited to one hour or less and sitting was limited to less than 8 hours. (ECF No. 8,
p. 16). After discussing Dr. Jabbour’s November 2010 report, the ALJ concluded that “the
overwhelming evidence of largely normal findings on examination discussed herein supports
finding that the claimant has the ability to perform work-related activities within the residual
functional capacity established herein.”3 (ECF No. 6-2, p. 18). Based on my review of the
record, I find the ALJ has not mischaracterized Dr. Jabbour’s report. (ECF No. 6-12, pp. 38-55).
Dr. Jabbour’s report of his physical examination of Plaintiff states that Plaintiff’s physical
functional ability was essentially within normal limits. Id. at 50-55. Yet, Dr. Jabbour then fills out
a checked box form that indicates much more severely restricted work-related physical activities.
Id. at 46-47. Thus, Dr. Jabbour’s records are internally inconsistent. (ECF No. 6-12, pp. 38-55).
The ALJ is entitled to reject information that is internally inconsistent and unsupported. I find the
ALJ’s conclusion regarding Dr. Jabbour’s medical report of November 2010 is supported by
substantial evidence of record. (ECF No. 6-12, pp. 38-45, 50-55).

Thus, I find no error in this

regard on the part of the ALJ.
Finally, Plaintiff suggests that the ALJ erred in failing to submit to the vocational expert his
functional limitations as a result of his chronic obstructive pulmonary disease (“COPD”) and
obstructive sleep apnea. (ECF No. 8, pp. 16-17). I disagree. An ALJ is required to accept only
hypothetical questions which accurately reflect a plaintiff=s impairments. See, Podedworny v.
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The ALJ found the Plaintiff to have the RFC to perform light work except “that he must avoid concentrated
exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, and poor
ventilation; is limited to jobs requiring understanding, remembering, and carrying out only simple,
instructions and making only simple work-related decisions; and must avoid interaction with the general
public and co-workers and is limited to only occasional interaction with supervisors.” (ECF No. 6-2, pp.
16-17).

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Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987);
Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986) (an ALJ may reject hypothetical questions
by Plaintiff=s attorney that are more restrictive than his own). Simply because a claimant has
impairment does not mean that the claimant’s ability to work is limited by that impairment. Here,
there is substantial evidence indicating that neither Plaintiff’s COPD nor his sleep apnea
functionally limits his ability to work other than that taken into account by the ALJ.4 (ECF No. 6-7,
pp. 24-25; ECF No. 6-12, p. 53). Thus, I find no error by the ALJ in this regard.
An appropriate order shall follow.

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The ALJ found the Plaintiff to have the RFC to perform light work except “that he must avoid concentrated
exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, and poor
ventilation; is limited to jobs requiring understanding, remembering, and carrying out only simple,
instructions and making only simple work-related decisions; and must avoid interaction with the general
public and co-workers and is limited to only occasional interaction with supervisors.” (ECF No. 6-2, pp.
16-17).

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL REBOSKY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 13-623

AMBROSE, Senior District Judge.
ORDER OF COURT
THEREFORE, this 24th day of February, 2014, it is ordered that Plaintiff=s Motion for
Summary Judgment (Docket No. 7) is granted in part and denied in part and Defendant=s Motion
for Summary Judgment (Docket No. 13) is denied.
It is further ordered that the decision of the Commissioner of Social Security is hereby
vacated and the case is remanded for further proceedings consistent with the foregoing opinion.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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