GREISINGER v. COLVIN

Filing 11

ORDER denying 6 Motion for Summary Judgment; granting 8 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/2/15. (hmg)

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

MARC DAVID GREISINGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of
Social Security
Defendant.

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Civil Action No. 14-332

AMBROSE, U.S. Senior District Judge
OPINION
AND
ORDER
I. Synopsis
Plaintiff brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for disability insurance benefits
(“DIB”) and Social Security Benefits (“SSI”) pursuant to the Social Security Act (“Act”).
Plaintiff protectively filed his application on February 14, 2011, alleging he was disabled
beginning August 1, 2009. ECF No. 5-2, 15. After Plaintiff’s application was denied initially,
he filed a written request to have his application reviewed by an Administrative Law Judge
(“ALJ”). Id. On September 25, 2012, Plaintiff testified at a hearing before an ALJ. Id. On
November 16, 2012, the ALJ found that Plaintiff was not disabled under the Act. Id. at 27.
After exhausting all administrative remedies, Plaintiff filed this action.
Pending before the Court are cross-motions for summary judgment. ECF Nos. [6]
(Plaintiff) and [8] (Defendant). Both parties filed briefs in support of their motions. ECF Nos.
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[7] (Plaintiff) and [9] Defendant. Plaintiff also filed a Reply Brief. ECF No. [10]. The issues
are now ripe for review. After careful consideration of the submissions of the parties, and based
on my Opinion as set forth below, I deny Plaintiff’s motion and grant Defendant’s motion for
summary judgment.
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 “[m]ore than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d
900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Additionally, the Commissioner’s findings of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A
district court cannot conduct a de novo review of the Commissioner’s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998). While 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, a 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. § 1382c(a)(3)(A).
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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) and 416.920(b). The
ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe impairment; (3) if the claimant has a severe
impairment, whether it meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1;
(4) if the impairment does not satisfy one of the impairment listings, whether the claimant’s
impairments prevent him from performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he can perform any other work which
exists in the national economy, in light of his age, education, work experience, and residual
functional capacity. 20 C.F.R. §§ 404.1520, 416.920. A Claimant carries the initial burden of
demonstrating by medical evidence that he is unable to return to his previous employment (Steps
1-4). Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof
shifts to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (Step 5). 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. Whether the ALJ Erred in Determining Plaintiff’s Severe Impairments
At Step Two of the sequential analysis, the ALJ found Plaintiff has the following severe
impairments: obesity, low back pain, and depression. ECF No. 5-2, 17. Plaintiff argues that the
ALJ erred because he also has the following severe impairments: a heart condition and
uncontrolled hypertension, anxiety disorder, and psychotic disorder. ECF No. 7, 13-15.

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At Step Two of the analysis, an ALJ must determine whether a claimant has a medically
determinable impairment that is severe or a combination of impairments that is severe. 20
C.F.R. §§ 404.1520(a), 416.920(a). An impairment is not severe if it does not significantly limit
one’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1520(c),

404.1521(a), 416.920(c). If a claimant is found to have a severe impairment, then the ALJ
proceeds to the next step. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also Newell v. Comm’r of
Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).
Although the ALJ did not find Plaintiff’s heart condition, anxiety, and psychotic disorder
to be severe, she did find other impairments severe at Step Two. ECF No. 5-2, 17-19. Thus,
Plaintiff was not denied benefits at Step Two. Rather, the ALJ proceeded beyond Step Two and
considered the Plaintiff’s severe and non-severe impairments in the evaluation process. ECF No.
5-2, 20 (“In making this [RFC] finding, I have considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence . . . .”) and 20-25 (ALJ developed an RFC that captured any credible physical
limitations resulting from Plaintiff’s heart condition and any credible mental restrictions
stemming from his anxiety). Thus, I agree with Defendant that any purported error was harmless
such that a remand on this basis is not warranted. See Salles v. Comm’r of Soc. Sec., 229 Fed.
Appx. 140, 144-45 n.2 (3d Cir. 2007) (“Because the ALJ found in [claimant’s] favor at Step
Two, even if he had erroneously concluded that some of her other impairments were non-severe,
any error was harmless.”) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); see
also Sheeler v. Astrue, No. 08-64J, 2009 WL 789892, *4-5 (W.D. Pa. Mar. 24, 2009); Hanke v.
Astrue; No. 12-2364, 2012 WL 6644201, *4 (7th Cir. Dec. 21, 2012).
C. Whether the ALJ Erred in Evaluating the Opinions of Dr. Eisler and Dr. Delaney
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Plaintiff argues that the ALJ failed to consider the opinion of Dr. John Delaney, Jr., MD,
Plaintiff’s treating psychiatrist and that she improperly discounted the medical opinion of Dr.
Robert Eisler, M.D., a consultative examiner. ECF No. 7, 15-16. The Plaintiff further argues
that the ALJ improperly substituted her own opinion when she failed to give the proper weight to
these medical opinions. Id. at 16.
The amount of weight accorded to medical opinions is well-established.

In his

evaluation, an ALJ will give medical opinions the weight she deems appropriate based on
various regulatory factors, including whether the opinion is supported by medical signs and
laboratory findings and whether the opinion is consistent with the record as a whole. 20 C.F.R.
§§ 404.1527(c), 416.927(c). Generally, an ALJ will give more weight to the opinion of a source
who has examined the claimant than to a non-examining source. 20 C.F.R. § 416.927(c)(1).
Nonetheless, “the more consistent an opinion is with the record as a whole, the more weight [the
ALJ generally] will give to that opinion.” Id. § 416.927(c)(4).
Here, the ALJ gave little weight to Dr. Eisler because she found Dr. Eisler’s opinion to be
internally inconsistent and inconsistent with the overall evidence of record. ECF No. 5-2, 25.
The ALJ also found that Dr. Eisler ignored the mental status examination findings and based his
opinion solely on the Plaintiff’s subjective complaints, which the ALJ found not entirely
credible. Id. These are valid and acceptable reasons for discounting opinion evidence. See 20
C.F.R. §§ 404.1527, 416.927 (Evaluating Opinion Evidence). Furthermore, there is substantial
evidence of record to support the ALJ’s finding with regard to the opinion of Dr. Eisler. See
evidence cited at ECF No. 5-2, 23-24; see also Exhibits 7E, 12F, 13F, 18F. Moreover, the ALJ
did not have to accept Dr. Eisler’s opinion that Plaintiff would be “unemployable for this year or
more” as the determination of disability under the Act is a legal determination reserved solely for
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the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). Accordingly, I find that the ALJ
committed no error as to his evaluation of Dr. Eisler.
Regarding the ALJ’s consideration of Plaintiff’s psychiatrist, Dr. Delaney, I disagree with
Plaintiff’s claim that the ALJ failed to comment on Dr. Delaney’s opinion. To the contrary, the
ALJ considered Dr. Delaney’s opinion as set forth in the completed questionnaire at Exhibit 15F
and explained that she gave it little weight because she found the level of restrictions suggested
by Dr. Delaney was inconsistent with the doctor’s treatment records at Exhibit 13F. ECF No. 52, 24. The ALJ also found Dr. Delaney’s opinion contradicted the report by Plaintiff’s PCP that
Plaintiff was doing well from a psychiatric standpoint and was stable with medication and
therapy. Id. These are valid and acceptable reasons for discounting Dr. Delaney’s opinion and
they are supported by substantial evidence in the record. See 20 C.F.R. §§ 404.1527, 416.927;
see also Exhibits 12F, 13F, 15F, and 18F. Consequently, I find no error in this regard.
D. Whether the ALJ Erred in his RFC Determination
Plaintiff further argues that the ALJ’s residual functional capacity finding (“RFC”) is not
supported by substantial evidence. ECF No. 7, 17. Plaintiff states: “[t]here is substantial
evidence that Plaintiff is not able to mentally do the work noted in the residual functional
capacity determined by the Administrative Law Judge.” Id. Plaintiff claims that Plaintiff’s
physical limitations are not covered by an RFC limiting Plaintiff to light work. Id. at 18.
Additionally, Plaintiff seems to allege that the ALJ improperly gave more weight to the opinions
of non-examining physicians. Id. at 17.
First, I reiterate that the standard in my review is not whether there is evidence to
establish the Plaintiff’s position but, rather, whether there is substantial evidence to support the

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ALJ’s finding. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Accordingly, to the extent
Plaintiff asks me reverse on this basis, I decline.
“ ‘Residual Functional Capacity is defined as that which an individual is still able to do
despite the limitations caused by his or her impairment(s).’ ” Fargnoli v. Massanari, 247 F.3d
34, 40 (3d Cir. 2001) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 12, 121 (3d Cir. 2000)
(citations omitted); 20 C.F.R. § 404.1545(a)(1) (RFC determination is an assessment of the most
an individual can do given his limitations); see also Soc. Sec. Reg. 96-8p. In determining a
claimant’s RFC, all of the claimant’s impairments, including those not considered “severe” must
be considered. 20 C.F.R. § 404.1545(a)(2). Additionally, the ALJ is required to consider all of
the evidence before him, including the medical evidence, a claimant’s subjective complaints, and
evidence of the complainant’s activity level. Burnett, 220 F.3d at 121 (citations omitted);
Fargnoli, 247 F.3d at 41. Further, “the opinion of a treating physician does not bind the ALJ on
the issue of functional capacity.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (citation omitted).
Here, the ALJ found Plaintiff has the RFC to perform light work, lift 20 pounds
occasionally and frequently, stand and walk six hours, sit six hours in an eight-hour day with
normal breaks. ECF No. 5-2, 20. The ALJ further limited Plaintiff’s RFC to work requiring
simple instructions and that is isolated from the public with occasional supervision and
occasional interaction with coworkers. Id. In making this determination, the ALJ gave a
detailed explanation of his consideration of the medical evidence of record. Id. at 20-25. As
required, the ALJ evaluated all of the medical opinions received.

Id.; see 20 C.F.R. §§

404.1527(b), 416.927(b); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The ALJ gave
reasons for any evidence she discounted or rejected, and she considered whether there was
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reasonable support for the medical source opinions, as well as whether the opinions were
consistent with the other substantial evidence of record. See Soc. Sec. Reg. 96-2p; 20 C.F.R. §
404.1527(c). I find no error here.
As discussed, infra, I find substantial evidence supports the ALJ’s reasoning for
discounting the opinions of doctors Eisler and Delaney. In his consideration of Dr. Khan, the
ALJ explained that she discounted Dr. Khan’s narrower range of light exertional work because
she found it conflicted with the physical examination findings of record, specifically those of
Plaintiff’s orthopedic surgeon and PCP. See evidence cited at ECF No. 5-2, 24 (discussing
Exhibits 4A, 5A, 4F, 17F, and 19F). I find these are valid and acceptable reasons, supported by
substantial evidence. Moreover, because I find substantial evidence supports the ALJ’s analysis
of all the medical evidence in his formulation of Plaintiff’s RFC, I find no error and affirm on
this issue. See evidence cited at ECF No. 5-2, 21-25.
E. Whether the ALJ Improperly Considered Testimony Offered by the Vocational Expert
(“VE”)
Plaintiff alleges that the ALJ erred by improperly disregarding testimony by the
Vocational Expert (“VE”) showing that Plaintiff would not be able to engage in substantial
gainful activity and by failing to pose accurate hypothetical questions to the VE regarding
Plaintiff’s impairments. ECF No. 7, 19-20. I disagree.
Hypothetical questions posed to a VE must include all of a claimant’s impairments that
are supported by the record for the VE’s answer to be considered substantial evidence. Ramirez
v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004) (internal citations omitted). An ALJ is required to
accept only that testimony from the VE which accurately reflects a claimant’s impairments. See

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Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (citing Podedworny v. Harris, 745
F.2d 210, 218 (3d Cir. 1984)).
Based on my review of the record, I find there is substantial evidence that the
hypothetical question posed by the ALJ accurately reflected Plaintiff’s impairments. See ECF
No. 5-2, 61-62. Additionally, I disagree with Plaintiff’s criticism that the ALJ improperly
disregarded VE testimony concerning the inability of a person to engage in substantial gainful
activity when that person needs to lie down for three to five times a work day, may miss more
than one day of work per month, or has an “extreme” impairment in his ability to behave in an
emotionally stable manner. ECF No. 7, 20. Because I find that the ALJ accepted the portions of
the VE’s testimony that addressed only the limitations for which the ALJ found support in the
record, Plaintiff’s argument has no merit.

See ECF No. 5-2, 26; ECF No. 5-2, 61-62.

Accordingly, on this point, I affirm.
III. Conclusion
Based on the evidence of record and the briefs filed in support thereof, I find there is
substantial evidence to support the ALJ’s conclusion that Plaintiff is not disabled within the
meaning of the Social Security Act.

As a result, I deny Plaintiff’s motion for summary

judgment, and I grant Defendant’s motion for summary judgment.
An appropriate Order follows.

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

MARC DAVID GREISINGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of
Social Security
Defendant.

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Civil Action No. 14-332

AMBROSE, U.S. Senior District Judge
ORDER
AND NOW, this 2nd day of February, 2015, after careful consideration of the
submissions of the parties and for the reasons set forth in the Opinion accompanying this Order,
it is Ordered that Plaintiff’s Motion for Summary Judgment (ECF No. [6]) is DENIED and
Defendant’s Motion for Summary Judgment (ECF No. [8]) is GRANTED.

BY THE COURT:

/s/ Donetta W. Ambrose
Donetta W. Ambrose
Senior U.S. District Court Judge

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