HOLLAND v. COLVIN
Filing
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OPINION granting 8 plaintiff's Motion for Summary Judgment and denying 12 defendant's Motion for Summary Judgment. The case is remanded to the Acting Commissioner of Social Security for further proceedings consistent with the court's Opinion. See Opinion for further details. Signed by Judge Gustave Diamond on 9/23/15. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYL VANIA
BLAKE THOMAS HOLLAND,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 14-424
OPINION
AND NOW, this
23. ~Ptember, 2015, upon consideration of the parties' cross-
motions for summary judgment pursuant to plaintiff s request for review of the decision of the
Acting Commissioner of Social Security ("Acting Commissioner") denying his applications for
disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and
Title XVI, respectively, ofthe Social Security Act (" Act"), IT IS ORDERED that plaintiff s motion
for summary judgment (Document No.8) be, and the same hereby is granted, and the Acting
Commissioner'S motion for summary judgment (Document No. 12) be, and the same hereby is,
denied. The case will be remanded to the Acting Commissioner pursuant to sentence 4 of 42
U.S.C. §405(g) for further proceedings consistent with this Opinion.
When the Acting Commissioner determines that a claimant is not "disabled" within the
meaning of the Act, the findings leading to such a conclusion must be based upon substantial
evidence. "Substantial evidence has been defined as 'more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate. '" Plummer v. Apfel, 186 F.3d
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422,427 (3d Cir. 1999) (citation omitted).
Despite the deference to administrative decisions required by this standard, reviewing courts
"'retain a responsibility to scrutinize the entire record and to reverse or remand if the [Acting
Commissioner's] decision is not supported by substantial evidence.'" Morales v. Apfel, 225 F.3d
310,317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968,970 (3d Cir. 1981). In
evaluating whether substantial evidence supports an ALJ's findings, '''leniency [should] be shown
in establishing the claimant's disability, and ... the [Acting Commissioner's] responsibility to
rebut it [should] be strictly construed .... '" Reefer v. Barnhart, 326 F.3d 376,379 (3d Cir. 2003)
(quoting Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)). These well-established
principles dictate that the court remand this case to the Acting Commissioner for further
proceedings as explained herein.
Plaintiff filed his DIB and SSI applications on December 15, 2010, alleging disability
beginning on January 1, 2008, due to juvenile diabetes, anxiety, depression and bipolar disorder.
Plaintiffs applications were denied. At plaintiffs request, an ALJ held a hearing on September
27,2012, at which plaintiff, who was represented by a non-attorney representative, appeared and
testified. On November 30, 2012, the ALJ issued a decision finding that plaintiff is not disabled.
The Appeals Council denied plaintiffs request for review on January 31,2014, making the ALl's
decision the final decision of the Acting Commissioner. The instant action followed.
Plaintiff, who has a high school education, was 23 years old on his alleged onset date,
which is classified as a younger individual under the regulations. 20 C.F.R. §§404.1563(c),
416. 963( c). Plaintiff has past relevant work experience as a dock hand, tire technician, prep cook
and fast food worker, but he has not engaged in substantial gainful activity at any time since his
alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
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vocational expert at the hearing, the ALl concluded that plaintiffis not disabled within the meaning
of the Act. Although the medical evidence established that plaintiff suffers from the severe
impairments of juvenile diabetes, anxiety, depression and bipolar disorder, those impairments,
alone or in combination, do not meet or equal the criteria ofany ofthe listed impairments set forth
in Appendix 1 of20 C.F.R., Subpart P, Regulation No.4 ("Appendix 1It).
The ALl found that plaintiff retains the residual functional capacity to perform work at all
exertional levels, but he has a number of non-exertional limitations. Plaintiff is restricted to
simple, routine and repetitive tasks and few workplace changes. In addition, plaintiff is precluded
from work that involves fast-paced production requirements. Finally, plaintiff must be isolated
from the public and he is limited to only occasional supervision and contact with co-workers
(collectively, the "RFC Finding").
Based upon testimony by a vocational expert, the ALl determined that plaintiff is capable
of performing his past relevant work as a dock hand because it does not exceed his residual
functional capacity. The ALl alternatively concluded that plaintiff can perform other work that
exists in significant numbers in the national economy, such as security guard at night, night cleaner
and night stocker. Accordingly, the ALl found that plaintiff is not disabled within the meaning of
the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment that can be expected to last for a continuous period of
at least twelve months.
42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(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 ofsubstantial
gainful work which exists in the national economy ...." 42 U.S.C. §§423(d)(2)(A), 1382c(a)(3)(B).
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The Social Security Regulations specifY a five-step sequential evaluation process for
determining whether a claimant is disabled. The ALl must assess: (1) whether the claimant is
currently engaged in substantial gainful activity; (2) ifnot, whether he has a severe impairment; (3)
ifso, whether his impairment meets or equals the criteria listed in 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 that exists in the national economy, in light of
his age, education, work experience and residual functional capacity. 1 20 C.F .R. §§404.1520(a)( 4),
416.920(a)(4). If the claimant is found disabled or not disabled at any step, further inquiry is
unnecessary. Id.
In this case, plaintiff argues that the ALl's decision is not supported by substantial evidence
for the following reasons: (1) the ALl failed to properly weigh certain medical opinions; and (2)
the ALl did not properly evaluate plaintiffs credibility. The court finds no merit to plaintiffs
contention concerning the ALl's evaluation of his credibility,2 but concludes that the ALl's
evaluation and weighing of certain medical opinions is incomplete. For that reason, the case must
lResidual functional capacity is defined as that which an individual still is able to do despite the
limitations caused by his impairments. 20 C.P.R. §§404.1545(a)(1), 916.945(a)(1). In assessing a
claimant's residual functional capacity, the ALl is required to consider the claimant's ability to meet the
physical, mental, sensory and other requirements ofwork. 20 C.P.R. §§404.1545(a)(4), 416.945(a)(4).
2 As required by the Regulations, the ALl evaluated plaintiffs credibility by considering all ofthe
relevant evidence in the record, including plaintiffs own statements about his symptoms and limitations,
his activities of daily living, the extent of his treatment and the medical evidence of record. See 20 C.P.R.
§§404.1529(c)(l )-(c )(3), 416.929(c)(l )-(c)(3); Social Security Ruling 96-7p. The ALl then considered the
extent to which plaintiffs alleged functional limitations reasonably could be accepted as consistent with
the evidence of record and how those limitations affect his ability to work. 20 c'P.R. §§404.1529(c)(4),
416.929(c)(4). The ALl concluded that the objective evidence is inconsistent with plaintiffs allegation
of total disabling limitations, and thus determined that plaintiffs testimony regarding his limitations was
not entirely credible. (R. 20). This court finds that the ALl adequately explained the basis for her
credibility determination in her decision, (R. 17-20), and is satisfied that such determination is supported
by substantial evidence. See Schaudeck v. Commissioner of Soc. Sec., 181 P.3d 429, 433 (3d Cir. 1999)
(an ALl may reject the claimant's subjective testimony ifhe does not find it credible so long as he explains
why he is rejecting the testimony).
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Brentzel's opinion great weight. 4 CR. 22).
In sum, the only evidence concerning plaintiff's mental impairments and resulting
limitations came from Dr. Radfar, the treating psychiatrist, Drs. Hepburn and Burstein, who each
examined plaintiff one time, Mr. Friedlander, the treating therapist, and Dr. Brentzel, the state
agency psychological consultant who reviewed plaintiff's records but did not examine him. Dr.
Radfar's opinion that plaintiffhad marked mental limitations, and was incapable ofeven low stress
work, was echoed by Drs. Hepburn and Burstein, as well as Mr. Friedlander. Dr. Brentzel, who
expressed concern that the consultative examination report by Dr. Hepburn lacked the insight that
could be provided by a longitudinal treatment history, did not have an opportunity to review Dr.
Radfar's Questionnaire. s As the ALJ acknowledged, Dr. Radfar's opinion was based on a
longitudinal treatment relationship. (R.21). Thus, the opinion proffered by Dr. Radfar, who had
a treating relationship with plaintiff, may have been relevant to Dr. Brentzel's evaluation.
As this summary indicates, the available mental health evidence in the record is largely
4The Regulations specifY that state agency medical and psychological consultants, such as Dr.
Brentzel, "are highly qualified physicians, psychologists, and othermedical specialists who are also experts
in Social Security disability evaluation. Therefore, administrative law judges must consider findings and
other opinions of State agency medical and psychological consultants ... as opinion evidence, except for
the ultimate detennination about whether [a claimant is] disabled." 20 C.F.R. §§404.l527( e )(2)(i),
416.927( e )(2)(i). In addition, the Third Circuit has rejected the argument that the lapse of time between
a state agency physician's review and the subsequent administrative hearing make it inappropriate for the
AU to rely on the opinion. See Chandler v. Commissioner of Soc. Sec. , 667 F.3d 356, 361 (3d Cir. 20 II)
(recognizing that "[t]he Social Security regulations impose no limit on how much time may pass between
a report and the ALJ's decision in reliance on it"). It is for the ALJ to detennine whether subsequent
medical evidence impacts the earlier findings. rd., citing SSR 96-6p. Here, Dr. Brentzel expressed concern
that the consultative examiner's report did not provide insight that would exist from a longitudinal
treatment history. Since Dr. Radfar had such a longitudinal treatment history with plaintiff, her
subsequently issued opinion on the Questionnaire might have been relevant to Dr. Brentzel's analysis.
Thus, on remand, after re-evaluating Dr. Radfar's opinion as specified herein, the ALJ also must consider
whether that re-evaluation impacts the weight she accorded to Dr. Brentzel's opinion.
5Dr. Brentzel reviewed plaintiff's records and rendered her opinion on April 4, 20 II. Subsequently
on May 17,2011, Dr. Radfar completed the Questionnaire on which she assessed plaintiff's mental work
related capabilities and issued her opinion that plaintiff is unable to tolerate even low stress work.
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consistent with Dr. Radfar's opinion. However, the ALl concluded Dr. Radfar's opinion was not
entitled to controlling weight in part because it was not consistent with "the other substantial
evidence in the case which indicates a higher level of functioning." (R. 21). After reviewing the
record, the court is unclear of the evidence to which the ALl refers. 6
The ALl certainly was not required to accept Dr. Radfar's conclusion that plaintiff is
incapable ofperforming even low stress work because a treating physician's opinion as to whether
a claimant is disabled is an issue reserved to the Acting Commissioner.
See 20 C.F.R.
§§404.1S27(d)(1), 416.927(d)(l) (explaining that "[a] statement by a medical source that [a
claimant is] 'disabled' or 'unable to work' does not mean that [the Acting Commissioner] will
determine that [the claimant is] disabled."). Although the ALl properly could reject Dr. Radfar's
opinion on the ultimate issue whether plaintiff is disabled, the ALl failed to identifY the substantial
evidence in the record which was inconsistent with her opinion and which purportedly indicated
a higher level offunctioning. This is contrary to the Regulations pronouncement that the ALl "will
always give good reasons" in her decision for the weight she gives to a claimant's treating source's
opinion. See 20 C.F.R. §§404.1S27(c)(2), 416.927(c)(2).
A treating physician's opinion is entitled to controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence ofrecord. 20 C.F.R. §§404.1S27(c)(2), 416.927(c)(2). Where, as here,
however, a treating physician's medical opinion is not given controlling weight, the Regulations
require the ALl to apply the following factors to determine the appropriate weight to give the
6To the extent the AU refers to plaintiffs report to Dr. Radfar in 2011 that he engaged in target
practice at a shooting range, went hunting and lifted weights, (R. 20), those activities alone are not
substantial evidence which would indicate a higher level offunctioning. See Fargnoli v. Massanari, 247
F.3d 34, 40, n.5 (3d Cir. 2001) (emphasizing that "sporadic and transitory activities cannot be used to show
an ability to engage in substantial gainful activity"); Smith, 637 F.2d at 971 ("Disability does not mean that
a claimant must vegetate in a dark room excluded from all forms of human and social activity.").
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opinion: the length of the treatment relationship and the frequency of examination; the nature and
extent of the treatment relationship; the degree to which evidence supports the opinion; the
consistency with the record as a whole; specialization ofthe physician; and any other factors which
tend to support or contradict the opinion. See 20 C.F.R. §§404.l527(c)(2)-(6), 416.927(c)(2)-(6).
There is no indication in the ALl's decision that she applied these factors in assessing and
weighing Dr. Radfar's opinion, nor did the ALl indicate what weight, ifany, she gave Dr. Radfar's
opinion after concluding it was not entitled to controlling weight. For this reason, as well as those
discussed above, this case must be remanded for further development.
On remand, the ALl must evaluate and weigh Dr. Radfar's opinion set forth on the
Questionnaire. To the extent the ALJ decides Dr. Radfar's opinion is not entitled to controlling
weight, she shall analyze the factors specified in the Regulations to determine the proper amount
ofweight to give Dr. Radfar's opinion. To the extent the ALJ concludes that Dr. Radfar's opinion
is not consistent with other record evidence that indicates a higher level of functioning, she shall
identify the evidence to which she refers. 7
After completing this analysis, ifthe ALl determines that Dr. Radfar's opinion or any other
medical opinions discussed herein support additional functional limitations, she shall factor them
into the assessment of plaintiff s residual functional capacity. In that event, the ALl shall obtain
additional vocational expert testimony to complete her analysis of plaintiff's case.
For the foregoing reasons, plaintiffs motion for summary jUdgment will be granted, the
7Plaintiff has also argued that the AU improperly evaluated and weighed the opinions of Dr.
Hepburn, the consu Itative exam iner, and Dr. Burstein, who exam ined plaintiff one time. As with the AU's
incomplete analysis of Dr. Radfar's opinion, the court notes that the AU's evaluation of the opinions
issued by Drs. Hepburn and Burstein likewise is incomplete. The AU stated that he gave those opinions
little weight "since they are at variance with the totality of the evidence which indicates a higher level of
functioning." (R. 21). Again, the court is unable to discern the evidence which indicates plaintiff s
purported higher level offunctioning. Thus, on remand, the AU must identify the evidence to which she
refers.
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Acting Commissioner's motion for summary judgment will be denied, and this case will be
remanded to the Acting Commissioner for further proceedings consistent with this Opinion.
~~
/' ustave Diamond
G
United States District Judge
cc:
Samantha Xander, Esq.
Law Offices of Harry J. Binder and Charles E. Binder, P.C.
60 East 42nd Street
Suite 520
New York, NY 10165
Christy Wiegand
Assistant U.S. Attorney
U.S. Post Office & Courthouse
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
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