GRADY v. COLVIN
Filing
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MEMORANDUM OPINION RE: 11 14 Cross Motions for Summary Judgment. An appropriate Order follows. Signed by Judge Arthur J. Schwab on 06/23/2014. (lcb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES STEPHEN GRADY, II,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Civil Action No. 14-0049
Electronically Filed
MEMORANDUM OPINION RE: CROSS MOTIONS FOR SUMMARY JUDGMENT
(Doc. Nos. 11 and 14)
I.
Introduction
Plaintiff, James Stephen Grady, II (“Plaintiff”), brings this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) of the Social Security Act (the “Act”), seeking judicial review of the
final decision of the commissioner of Social Security (“Commissioner”) denying his applications
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The Parties
have filed Cross Motions for Summary Judgment on the record developed at the administrative
proceedings. For the following reasons, Plaintiff’s Motion for Summary Judgment (Doc. No.
11) will be DENIED, the Commissioner’s Motion for Summary Judgment (Doc. No. 14) will be
GRANTED, and the administrative decision of the Commissioner will be AFFIRMED.
II.
Procedural History
Plaintiff protectively filed applications for DIB and SSI on December 3, 2010, alleging
disability as of July 20, 2008. R. 18. The applications were denied by the state agency on May
24, 2011. R. 80-85. Plaintiff responded on July 20, 2011, by filing a timely request for an
administrative hearing. R. 104-105. On April 19, 2012, a hearing was held in Johnstown,
Pennsylvania, before Administrative Law Judge (“ALJ”) Geoffrey S. Casher. Plaintiff, who was
represented by counsel, appeared and testified. Timothy E. Mahler, an impartial vocational
expert (“VE”), also testified. R. 46-52.
III.
Statement of the Case
In a decision dated July 12, 2012, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through
March 31, 2011.
2. The claimant has not engaged in substantial gainful activity since July 30, 2008, the
alleged onset date. 20 CFR 404.1571 et seq., and 416.971 et seq.
3. The claimant has the following severe impairments: lumbar spine arthritis,
degenerative joint disease, bipolar I disorder, attention deficit hyperactivity disorder,
and opioid dependence. 20 CFR 404.1520(c) and 416.920(c).
4. The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined in
20 CFR 404.1567(c) and 416.967(c) except: no exposure to hazardous conditions
such as unprotected heights and dangerous machinery; limited to simple, routine tasks
involving no more than simple, short instructions and simple work-related decisions
with few work place changes (unskilled work); no work at production rate pace or
fast pace; and occasional interaction with public, co-workers and supervisors.
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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on July 16, 1963 and was 45 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563
and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from July 30, 2008, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)). Doc. No. 7-2, 20-29.
IV.
Standard of Review
This Court’s review is limited to determining whether the Commissioner’s decision is
“supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). The Court may not undertake a de novo review of the Commissioner’s decision or
re-weigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 11901191(3d Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the
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Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal
quotation marks omitted). As long as the Commissioner’s decision is supported by substantial
evidence, it cannot be set aside even if this Court “would have decided the factual inquiry
differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). “Overall, the substantial
evidence standard is a deferential standard of review.” Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him [or her] from engaging in any
‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Secretary of
Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777
(3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be
unable to engage in substantial gainful activity “only if his [or her] physical or mental
impairment or impairments are of such severity that he [or she] is not only unable to do his [or
her] previous work but cannot, considering his [or her] 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), 1382c(a)(3)(B).
To support his or her ultimate findings, an Administrative Law Judge must do more than
simply state factual conclusions, he or she must make specific findings of fact. Stewart v. Sec’y
of Health, Educ. & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The Administrative Law Judge
must consider all medical evidence contained in the record and provide adequate explanations
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for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d
Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
The Social Security Administration (“SSA”), acting pursuant to its legislatively delegated
rule making authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court has summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
unless the claimant shows that he is not working at a “substantial gainful
activity.” [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
non-disability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits [the claimant’s] physical or mental ability to do basic work activities.”
§§ 404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (footnotes omitted).
In an action in which review of an administrative determination is sought, the Agency’s
decision cannot be affirmed on a ground other than that actually relied upon by the Agency in
making its decision. In Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194 (1947), the
Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing with
a determination or judgment which an administrative agency alone is authorized
to make, must judge the propriety of such action solely by the grounds invoked by
the agency. If those grounds are inadequate or improper, the court is powerless to
affirm the administrative action by substituting what it considers to be a more
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adequate or proper basis. To do so would propel the court into the domain which
Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196.
The United States Court of Appeals for the Third Circuit has recognized the applicability
of this rule in the Social Security disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n. 7
(3d Cir. 2001). Thus, this Court’s review is limited to the four corners of the ALJ’s decision. It
is on this standard that the Court has reviewed the Parties’ Cross Motions for Summary
Judgment.
V.
Discussion
In support of his Motion for Summary Judgment, Plaintiff argues that the ALJ committed
two reversible errors. Doc. No. 13. Specifically, Plaintiff contends that the ALJ: (1) did not
credit Dr. Somen, his treating physician, who opined that he would miss more than four days of
work per month because he was not able to retain a regular sleep schedule; and (2) credited the
partial review of a state agency medical consultant over Dr. Somen’s findings based upon his
unsubstantiated lay judgment. Id. The Commissioner argues that the ALJ’s decision is
supported by substantial evidence. Doc. No. 15.
A.
The ALJ Sufficiently Accounted for the Opinion of Dr. Somen
Plaintiff argues that there was conflicting evidence as to whether he could maintain
regular attendance at work due to his inability to maintain a regular sleep schedule, and the ALJ
did not resolve this conflict. To be eligible for benefits, a plaintiff has the burden of
demonstrating a medically determinable impairment that is so severe that it prevents him or her
from engaging in any substantial gainful activity that exists in the national economy. 42 U.S.C.
§ 423(d) (2)(A); 20 C.F.R. §§ 404.1505, 416.905; see Heckler v. Campbell, 461 U.S. 458, 460
(1983). In deciding whether a claimant has met this burden, the ALJ must consider all the
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evidence of record, especially the testimony and findings of a claimant’s treating physicians.
See, e.g., Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987). After considering all of the
evidence, the ALJ is tasked with formulating a claimant’s residual functional capacity (“RFC”)
that reflects all impairments that the ALJ found to be supported by the record. “In making a
residual functional capacity determination, the ALJ must consider all evidence before him . . . .
Although the ALJ may weigh the credibility of the evidence, he must give some indication of the
evidence which he rejects and his reason(s) for discounting such evidence . . . . ‘In the absence
of such an indication, the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.’” Cotter, 642 F.2d at 705 (additional citations omitted). Here,
Plaintiff alleges that the RFC is flawed.
Plaintiff appears to argue that the RFC is incomplete because, as noted by Dr. Somen, he
would miss more than four days of work per month. A review of the ALJ’s decision that
Plaintiff is not disabled under the Act, including his formulation of Plaintiff’s RFC, demonstrates
that the ALJ considered all the evidence and included all credited impairments in Plaintiff’s RFC
assessment and explained why other alleged impairments were not included. Doc. No. 7-2, 24.
The ALJ did not credit Dr. Somen’s finding that Plaintiff was unable to maintain proper
attendance at work due to an irregular sleep schedule, because he found this finding to be
unpersuasive. Doc. No. 7-2, 25. As discussed by the ALJ, Dr. Somen, in a mental status
examination, reported that:
Claimant was responding to treatment; making progress as he gains insight; could
understand, remember and carry out simple instructions; could make simple
decisions; could ask questions; and could adhere to basic standards of neatness
(Exhibit 12F). At this time the claimant was assessed a Global Asessment of
Functioning (GAF) score of 65 which is inconsistent with an individual who is
incapable of sustained competitive work activity (Exhibit 12F; see the Diagnostic
and Statistical Manual of Mental Disorders Fourth Edition, 1994).
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Id. This discussion evidences the inconsistency in Dr. Somen’s evaluations, and why the ALJ
gave his opinion partial weight. Further, the ALJ noted that Dr. Somen’s opinion was
inconsistent with Dr. Wong’s assessment of Plaintiff, who found that Plaintiff could maintain
regular attendance. 1 Doc. No. 7-2, 26. After consideration of Plaintiff’s record, the ALJ found
that Dr. Somen’s finding is not substantial enough to support “greater or additional restrictions”
on the Plantiff’s RFC. Id. Therefore, because the ALJ incorporated all limitations he found to
be supported by the record and explained why some of Plaintiff’s alleged impairments were not
included; his decision not to award benefits is supported by substantial evidence. That is the
Court’s sole inquiry.
B.
The ALJ’s Determination Was Not Based On His Own Lay Judgment
Plaintiff’s second argument is that the ALJ used his own medical judgment in his RFC
determination by giving controlling weight to the reviewing physician, Dr. Brace, and his
opinion, which was not based on the “complete record.” Plaintiff argues that Dr. Brace did not
have the following information: (1) Plaintiff’s diagnosis of bipolar disorder in June of 2011;
(2) Plaintiff’s full treatment notes, after May of 2011, which indicated his inability to maintain a
proper sleep schedule; and (3) reports of Plaintiff’s visit to an emergency room due to panic
attacks in July of 2011. Doc. No. 13, 6-7.
As previously discussed, the ALJ found Dr. Brace’s findings to be more persuasive than
Dr. Somen’s. Doc. No. 7-2, 25. Much of the ALJ’s decision not to credit Dr. Somen is based on
medical evidence such as mental health progress notes in February 2012, and improving moods
and working medications in April 2012. Doc. No. 7-2, 25-26. These findings were noted after
Plaintiff’s diagnosis of bipolar disorder and his panic attacks. Further, bipolar I disorder was
included in the ALJ’s findings of Plaintiff’s severe impairments. Doc. No. 7-2, 20.
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Plaintiff reported to Dr. Wong for primary care on April 21, 2011 and on November 7, 2011. Doc. No. 12, 7-9.
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Plaintiff asserts that the ALJ “injected” his own medical judgment because he concluded
that Plaintiff’s GAF assessment of 65 contradicted Dr. Somen’s opinion that Plaintiff would need
to miss more than four days of work per month. The ALJ based his determination on a complete
review of the record, not simply Plaintiff’s GAF score.2 Doc. No. 7-2, 26. The ALJ did not use
his own medical judgment, but rather, included only those impairments that he found to be
consistent throughout the record. Id. Unlike in Cadillac v. Barnhart, the ALJ did not reject
evidence based on his own medical judgment, but credited some evidence over the other. 84 F.
App’x 163, 168 (3d Cir. 2003).
Here, the ALJ found Dr. Somen’s findings to be internally inconsistent, and inconsistent
with the assessments of other treating physicians. Id. The internal inconsistencies in Dr.
Somen’s assessments are an adequate basis for an ALJ to disregard his findings as unpersuasive.
The Court finds that the ALJ properly addressed Dr. Somen’s findings and notes, considered the
entire record, and did not “inject” his own medical opinion. Therefore, the Court sees no reason
to disrupt the ALJ’s decision.
VI.
Conclusion
For the foregoing reasons, the Court finds that the ALJ’s decision is supported by
substantial evidence. Therefore, the Commissioner’s administrative decision will be
AFFIRMED. An appropriate Order follows.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:
All Registered ECF Counsel and Parties
2
The GAF scale is a 100-point rating system that takes into account overall psychological, social and, occupational
functioning of people over 18 years of age and is developed by the American Psychiatric Assocaition. Diagnostic
and Statistical Manual of Mental Disorders—Fourth Edition (DSM-IV-TR) 34 (4th ed., text rev., 2000). A score in
the 61-70 range (as Plaintiff’s is), means “some mild symptoms (e.g. depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful
personal relationships.” Id.
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