RODGERS v. COLVIN

Filing 15

MEMORANDUM AND ORDER OF COURT denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. Signed by Judge Gustave Diamond on 8/24/15. (gpr)x

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEBORAH RODGERS,
Plaintiff,
v.

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 14-489

MEMORANDUM AND ORDER OF COURT
AND NOW, this

;l~~of August, 2015, upon due consideration of the parties' cross-

motions for summary judgment related to plaintiffs request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiffs application for
supplemental security income under Title XVI ofthe Social Security Act ("Act"), IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No. II) be, and the same
hereby is, granted, and plaintiffs motion for summary judgment (Document No.9) be, and the
same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the ALJ explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999). Where the ALJ's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALJ's
decision here because the record contains substantial evidence to support the ALJ's findings and
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conclusions.

PlaintifT protectively filed her pending application for benefits on October 15, 20lO,
alleging a disability onset date of September 15, 2009, due to bipolar disorder, anxiety and
depression. Plaintiffs application was denied initially. At plaintiff s request an ALJ held a hearing
on June 18,2012, at which plaintiff, represented by counsel, appeared and testified. On September
18, 2012, the ALJ issued a decision finding that plaintiff is not disabled. On February 21, 2014,
the Appeals Council denied review making the ALJ's decision the final decision of the
Commissioner.
Plaintiff was 34 years old at the time of the ALJ's decision and is classified as a younger
person under the regulations. 20 C.F.R. §416.963(c). She has at least a high school education,
20 C.F.R. §416.964(b)(4), and has past relevant work experience as an office cleaner and a
cashier, but she has not engaged in any substantial gainful activity since her application date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiff is not disabled within the meaning of the
Act. The ALJ found that although the medical evidence establishes that plaintiff suffers from
the severe impainnents of bipolar disorder, anxiety disorder, depressive disorder and a history
of poly~substance abuse, those impainnents, alone or in combination, do not meet or equal the
criteria of any of the impainnents listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to perfonn a
full range of work at all exertionallevels but with a number of non~exertionallimitations
arising from her mental impainnents. (R. 15).' Based on the vocational expert's description of

1 Specifically, the ALJ found that plaintiff has the following non~exertionallimitations: " she
requires simple, routine, repetitive work at an unskilled, entry level ... she cannot perform work which
requires the handling of money and needs a stable work environment. She cannot have contact with the
public, work as part of a team, or perform rate~paced work. She can have no more than occasional contact
with co~workers and supervisors." (R. IS).
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plaintiffs past relevant work, and comparing plaintiff's residual functional capacity with the
physical and mental demands of that past work, the ALJ found that plaintiff is capable of
performing her past relevant work of office cleaner as it is actually and generally performed.
(R. 21). 2 Accordingly, the ALJ concluded at step 4 of the sequential evaluation process that
plaintiff is not disabled under the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment which can be expected to last for a continuous
period of at least twelve months. 42 U.S.C. §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 of substantial
gainful work which exists in the national economy .... " 42 U.S.C. §1382c(a)(3)(B).
The Commissioner has promUlgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability? 20 C.F.R.
§416.920. If the claimant is found disabled or not disabled at any step, the claim need not be
reviewed further. Id.; see Barnhart v. Thomas, 540 U.S. 20 (2003).

Alternatively, the AU also found at step 5 that plaintiff is capable of making an adjustment to
work which exists in significant numbers in the national economy based on her age, education, work
experience and residual functional capacity, including, as identified by the vocational expert, the
representative jobs of stocker, janitor and sorter/grader. (R. 21-22).
2

The AU must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impairment; (3) if so, whether her impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix I; (4) if not, whether the claimant's
impairment prevents her from performing her past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of her age, education, work
experience, and residual functional capacity. 20 C.F.R. §416.920; Newell v. Commissioner of Social
Security, 347 F.3d 541,545 (3d Cir. 2003). In addition, when there is evidence of a menta I impairmentthat
allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating
mental impairments set forth in the regulations. Plummer, 186 F.3d at 432; 20 C.F.R. §416.920a.
3

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Here, plaintiff raises two challenges to the ALJ's detennination that plaintiff is not
disabled: (1) the ALJ improperly evaluated the medical evidence by failing to properly weigh
the opinion of a consultative examiner; and, (2) the ALJ improperly evaluated plaintiffs
credibility by failing to consider the reasons for plaintiffs lack of consistent treatment for her
mental health issues. Upon review, the court is satisfied that the ALJ properly evaluated the
evidence and that all of the ALJ's findings are supported by substantial evidence.
Plaintiffs first argument is that the ALJ improperly evaluated the medical evidence.
Specifically, plaintiff contends that the ALJ failed to properly weigh the opinion of a
consultative psychologist, Dr. Shama Olfman, who, following a psychological evaluation of
plaintiff, concluded that plaintiff has "marked" restrictions in a number of work-related
functional areas, including, inter alia, the ability to interact appropriately with the public, co­
workers and supervisors, and to respond appropriately to work pressures and changes. (R.
347). The court finds no error in the ALJ's evaluation of this opinion evidence.
The rules by which the ALJ is to evaluate the medical evidence are well-established
under the Social Security Regulations and the law of this circuit. Briefly, opinions of treating
physicians are entitled to substantial, and at times even controlling, weight. 20 C.F.R.
§416.927(c)(2); Fargnoli, 247 F.3d at 33. Where a treating physician's opinion on the nature
and severity of an impainnent is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the record, it
will be given controlling weight. Id. However, when a treating source's opinion is not entitled
to controlling weight, it is to be evaluated and weighed under the same standards applied to all
other medical opinions, such as consultative evaluations, taking into account numerous factors,
including the opinion's supportability, consistency and specialization. 20 C.F.R. §416.927(c).
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Importantly, the opinion of any physician, including a treating physician, on the issue of what
an individual's residual functional capacity is or on the ultimate determination of disability
never is entitled to special significance. 20 C.F.R. §416.927(d); SSR 96-5p.
Here, the ALJ adhered to the appropriate standards in evaluating all of the medical
evidence, including the report of Dr. Olfman. The ALJ explicitly addressed Dr. Olfman's
report in her decision, (R. 18), and she thoroughly explained why she afforded "little weight"
to Dr. Olfman's conclusion that plaintiff has "marked" limitations in many areas of mental
functioning. (R. 20). Specifically, the ALJ noted that Dr. Olfman herself questioned the
reliability of her own evaluation given plaintiff's "less than forthcoming responses regarding
her substance abuse, giving a history which was inconsistent with available medical records,
and had stated from the beginning of the examination that she was resentful of having to
answer questions or participate in the examination." Id. Accordingly, the ALJ chose to give
greater credence to the opinions of another consultative examiner, Dr. T. David Newman, and
the state agency reviewing psychologist,4 "since their conclusions are more consistent with the
record when considered as a whole." (R. 20-21). The ALJ outlined all of the medical evidence
in her decision, (R. 17-21), and her evaluation of that evidence is supported by substantial
evidence.
Contrary to plaintiff's argument, the ALJ did not err by calling into question the validity
of Dr. Olfman's conclusions because Dr. Olfman herself questioned the reliability of plaintiff's
responses. Under the regulations, the supportability of an opinion is a key factor in the weight

4
State agency medical consultants are "highly qualified physicians ... who are also experts in
Social Security disability evaluation." 20 C.F.R. §416.927(e)(2)(i). Accordingly, while not bound by
findings made by reviewing physicians, the ALJ is to consider those findings as opinion evidence, and is
to evaluate them under the same standards as all other medical opinion evidence. 20 C.F.R.
§416.927( e)(2)( ii); SSR 96-6p.

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to be given to that opinion, and "the better an explanation a source provides for an opinion, the
more weight" will be given to it. 20 C.F.R. §416.927(c)(3). Accordingly, when the medical
source herself questions the reliability of her own evaluation, the ALl certainly cannot be said
to error in taking that into account in assessing the weight that opinion deserves, particularly
when that opinion otherwise is not consistent with the record as a whole. 20 C.F.R.
§416.927(c)(3).
In sum, the ALl did a thorough job in her decision in setting forth the relevant medical
evidence and explaining why she rejected or discounted any evidence. The court has reviewed
the ALl's decision and the record as a whole and is satisfied that the ALl's evaluation of the
medical evidence is supported by substantial evidence.
Plaintiffs second argument is that the ALl's credibility determination is flawed because
she improperly "diminished" plaintiffs credibility due to her lack of consistent treatment
without considering any possible reasons for that sporadic treatment. This argument is
unpersuasive.
In assessing plaintiffs credibility the ALl considered the record as a whole, and, based
on her review of all of the evidence, including the medical evidence, found that the "objective
signs and clinical findings indicate a higher level of functioning than that alleged by [plaintiff]
at the hearing." (R. 19). Accordingly, while acknowledging that plaintiff "may suffer from
some limitations due to her mental impairments," she reasonably concluded that plaintiffs
statements "are not credible to the extent that it is construed to mean that her limitations are so
severe that she cannot engage in any work activity."

Such a finding, the ALl determined,

would be "inconsistent with the objective medical evidence, treatment regimen, and the
evaluations of various examining and treating medical sources." Id.
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The court is satisfied that the ALJ properly evaluated plaintiffs allegations regarding
her mental limitations in accordance with the appropriate standards. 20 C.F.R. §416.929(c);
SSR 96-7p. 5 Although plaintiff now takes issue with the ALl's consideration of plaintiff s
"rather sporadic treatment,,,6 the ALJ appropriately did consider that treatment history in
assessing the limiting effects of plaintiffs symptoms, as she is authorized to do under SSR
96-7p and 20 C.F.R. §416.929(c)(3)(v) (ALJ may consider treatment, other than medication,
which claimant receives or has received for relief of pain or other symptoms in determining
intensity, persistence and limiting effects of such symptoms). See Vega v. Commissioner of
Social Security, 358 Fed.Appx. 372, 375 (3d Cir. 2009).
Moreover, it is clear that the ALJ properly took into account plaintiffs sporadic medical
treatment as a factor, not the only factor, in assessing plaintiffs credibility. Significantly, the
ALl's credibility determination is supported by other important factors as discussed by the ALJ
in her decision, including the objective medical evidence and the evaluations of various
examining and treating medical sources. Based on all of this evidence, the ALJ found plaintiff
not fully credible. (R. 19).
It also is important to emphasize that the ALJ did not find that plaintiffs SUbjective

complaints entirely were not credible. Rather, the decision makes clear that, to the extent
plaintiffs allegations as to the limitations arising from her impairments are supported by the
medical and other evidence, the ALJ accommodated those limitations in the residual functional

Allegations of pain and other subjective symptoms must be supported by objective medical
evidence, 20 C.F.R. §4l6.929(c), and an AU may reject a claimant's subjective testimony ifshe does not
find it credible so long as she explains why she is rejecting the testimony. Schaudeck v. Commissioner of
Social Security, 181 FJd 429, 433 (3d Cir. 1999); see also SSR 96-7p.
5

The AU recognized that plaintiff "has engaged in only rather sporadic treatment, canceling
many appointments, [an] indication that she has not taken her treatment seriously enough to enjoy any real
improvement in symptoms." (R. 19)
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capacity finding. Only to the extent that plaintiffs allegations are not so supported did the ALJ
find them to be not credible.
The record demonstrates that the ALJ adhered to the appropriate standards in evaluating
plaintiffs credibility and it is not this court's function to re-weigh the evidence and arrive at its
own credibility determination. Rather, this court must only determine whether the ALl's
credibility determination is supported by substantial evidence, and is satisfied that it is.
After carefully and methodically considering all of the medical evidence of record and
plaintiff s testimony, the ALJ determined that plaintiff is not disabled within the meaning of
the Act. The ALl's findings and conclusions are supported by substantial evidence and are not
otherwise erroneous. Accordingly, the decision of the Commissioner must be affirmed.

/~~
Gustave Diamond
United States District Judge

cc:

Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller PLLC
6000 North Bailey Avenue, Ste. 1A
Amherst, NY 14226
Paul Kovac

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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