LAVERDE v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

MEMORANDUM AND ORDER OF COURT denying 9 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 9/21/15. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KERRY LA VERDE,

)

Plaintiff,
v.

)
)
)
)
)

CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

)
)
)

Defendant.

Civil Action No. 14-1242

)

)

MEMORANDUM AND ORDER OF COURT
AND NOW, this

-d-L ~fSePtember, 2015, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiffs request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs applications for
disability insurance benefits and supplemental security income under Titles II and XVI,
respectively, ofthe Social Security Act ("Act"), IT IS ORDERED that the Commissioner's motion
for summary judgment (Document No. 12) 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 ludge ("ALl") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the ALl explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Where the ALl's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
I

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 ALl's
decision here because the record contains substantial evidence to support the ALl's findings and
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conclusions.

Plaintiff protectively filed his pending applications for disability insurance benefits and
supplemental security income on August 21, 2011, alleging a disability onset date of October 6,
2009, due to HIV, anxiety, depression and post-traumatic stress disorder (PTSD). Plaintiffs
applications were denied initially. At plaintiffs request an ALl held a hearing on November 5,
2012, at which plaintiff, represented by counsel, appeared and testified. On December 18, 2012,
the AL.I issued a decision finding that plaintiff is not disabled. On July 14, 2014, the Appeals
Council denied review making the ALl's decision the final decision of the Commissioner.
Plaintiff was 53 years old at the time of the ALl's decision and is classified as a person
closely approaching advanced age under the regulations. 20 C.F.R. §§404.1563(d) and
416. 963( d). He has at least a high school education and has past relevant work experience as a
police officer and an unarmed guard, but he has not engaged in any substantial gainful activity
since his alleged onset 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 ALl found that although the medical evidence establishes that plaintiff suffers from
the severe impairments of anxiety, depression, PTSD and HIV, those impairments, alone or in
combination, do not meet or equal the criteria of any of the impairments listed at Appendix 1 of
20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to engage in
work at the light exertionallevel but with numerous limitations necessary to accommodate his
physical and mental impairments. l Taking into account these restrictions, a vocational expert
1 Specifically, the AU detennined that plaintiff has the residual functional capacity to perfonn
light work except he requires a sit/stand option every 30 minutes; he is limited to occasional climbing,
balancing, stooping, kneeling, crouching and crawling; he cannot work in security, as a police officer or
in a casino; he is limited to simple, routine, repetitive tasks (unskilled work); he cannot work with the
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identified numerous categories ofjobs which plaintiff can perform based upon his age,
education, work experience and residual functional capacity, including assembler, packer and
sorter/grader. Relying on the vocational expert's testimony, the ALJ found that, although
plaintiff cannot perform any of his past relevant work, he is capable of making an adjustment to
numerous jobs existing in significant numbers in the national economy. Accordingly, the ALJ
concluded 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. §§423(d)(l)(A) and 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.
§§423(d)(2)(A) and § 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.2 20 C.F.R.
§§404.1520 and 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).

general public or as part ofa team; and, he is limited to occasional contact with supervisors. (R.14).
The AU must determine: (\) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, 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 which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920; Newell v. Commissioner
of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence of a mental
impairment that 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.
§§404.1520a and 416.920a.
2

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In this case, plaintiff challenges the ALl's evaluation of the medical evidence.
Specifically, he argues that the ALJ failed to give adequate weight to the opinion of his treating
psychiatrist, Dr. John Carter Brooks, who opined, inter alia, that plaintiff often would have
difficulty managing even a low stress work environment and maintaining concentration,
persistence and pace during an 8-hour workday, and that he would experience 4-6 "bad days"
per month during which he would not be able to complete an 8-hour work shift. (R. 361).
Plaintiff further contends that the ALJ improperly failed to incorporate the foregoing
limitations into her residual functional capacity finding and hypothetical question to the
vocational expert. Upon review, the court is satisfied that the ALJ's evaluation of the medical
evidence is supported by substantial evidence, as is her residual functional capacity finding.
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. Opinions of treating
physicians are entitled to substantial, and at times even controlling, weight. 20 C.F.R.
§§404.l527(c)(2) and 416.927(c)(2); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
Where a treating physician's opinion on the nature and severity of an impairment 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, taking
into account numerous factors, including the opinion's supportability, consistency and
specialization. 20 C.F.R. §§404.l527(c) and 416.927(c).
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
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disability never is entitled to special significance. 20 C.F.R. §§404.1527(d) and 416.927(d);
SSR 96-5p. "The law is clear ... that the opinion of a treating physician does not bind the ALJ
on the issue of functional capacity." Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011).
Rather, "[t]he ALJ-not treating or examining physicians or State agency consultants-must
make the ultimate disability and RFC determinations." Chandler v. Commissioner of Soc.
Sec., 667 F.3d 356,361 (3d Cir. 2011); see 20 C.F.R. §§ 404.1527(d)(2) and (3) &
416.927(d)(2) and (3); 404. 1546(c) and 416.946(c).
Here, the ALJ adhered to the foregoing standards in evaluating the medical evidence.
The ALJ specifically addressed the opinion from Dr. Brooks and adequately explained why she
was assigning' little weight" to that opinion. (R. 16). In particular, the ALJ determined that
Dr. Brooks' opinion "overestimate[s] [plaintiffs] limitations, particularly his ability to manage
even a low stress environment and maintain concentration, persistence and pace." (Id.) The
ALJ observed that plaintiff engages in tasks which can be stressful (caring for his ailing
mother) and which require concentration, persistence and pace, such as following television
programs, using the internet and playing video games.

ag.). Rejecting the more debilitating

limitations advanced by Dr. Brooks, the ALJ instead chose to give great weight to the opinion
of the state agency psychologist, Dr. Lisa Cannon, who found only mild limitations in activities
of daily living and moderate limitations in social functioning and concentration, persistence
and pace, which the ALJ found to be more consistent with the record as a whole, including
plaintiff s "rather benign mental findings." (R. 16-17).
Upon review, the court is satisfied that the ALl's evaluation of the opinion of Dr.
Brooks as a treating physician is supported by substantial evidence. As already noted, the
Regulations provide that a treating physician's opinion only is to be given controlling weight if
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it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and

is not inconsistent with other substantial evidence in your case record." 20 C.F.R.

§§404.l527(c)(2) and 416.927(c)(2); SSR 96-2p.

Here, Dr. Brooks' opinion as to the degree oflimitation in plaintiffs ability to handle
low stress work and maintaining concentration, persistence and pace, and that plaintiff would
not be able to complete an 8-hour workday 4-6 times per month, is neither well-supported nor
consistent with other evidence in the record. 3 As to supportability, Dr. Brooks' assessment is
set forth on a one-page evaluation form that he did not prepare and consists solely of his
signature indicating his agreement with the limitations reported therein, accompanied by no
explanation or supporting documentation. (R. 361). In the absence of any such support, Dr.
Brooks' opinion was weak evidence upon which the ALl properly did not rely. SSR 96-2p

(ALl "cannot decide a case in reliance on a medical opinion without some reasonable support
for the opinion"); see also, e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)("[f]orm
reports in which a physician's obligation is only to check a box or fill in a blank are weak
evidence at best").
Moreover, as the ALl noted, Dr. Brooks' opinion was inconsistent with other
substantial evidence in the record, including his own treatment notes and those of plaintiff s
therapist, which indicated that plaintiff was "doing well and getting his self-confidence back

Plaintiff's argument that the AU failed to adhere to the Regulations by not explicitly listing and
discussing each ofthe 6 factors set forth in §§404.1527(c) and 416.927(c) in evaluating the medical opinion
of Dr. Brooks is without merit. Plaintiff cites to no authority for a requirement that the AU must
specifically list and discuss each factor individually and this court will not impose such a requirement.
Generally, an AU is not required to use particular language or adhere to a particular format in conducting
her analysis and all that is required is that there is "sufficient ... explanation of findings to permit
meaningful review." Jones v. Barnhart, 364 F.3d 501, 505 (3d eir. 2004)( discussing AU's obligations in
conducting a step 3 analysis). Here, the AU adequately explained her evaluation of Dr. Brooks' opinion
to allow this court to conduct meaningful review and the court is satisfied that she adhered to the standards
of §§404.1527(c) and 416.927(c) with due consideration given to the appropriate factors set forth therein.
3

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and ... was encouraged to enjoy his life, increase his activities and do volunteer work." (R. 16;
281-285; 343-360).

In addition, it is clear from the evaluation fonn signed by Dr. Brooks that it is based in
significant part on plaintiff's own subjective descriptions of his limitations, as the fonn
explicitly states "[y]our patient told us that their functioning is affected in the following manner
by their medical conditions." (R. 361). Accordingly, contrary to plaintiff's contention, the
ALJ did not err in pointing out inconsistencies in the level of limitations set forth in the
evaluation fonn and plaintiff's other reported activities which tended to show that Dr. Brooks
was overestimating plaintiff's limitations. While it is true, as plaintiff now asserts, that
sporadic and transitory activities of daily living cannot be used to show an ability to engage in
substantial gainful activity, see Fargnoli, 247 F.3d at 40, n.S, the ALJ did not do so here.
Instead, the ALJ properly considered plaintiffs allegations in light of the medical evidence,
which revealed the absence of clinical and objective findings supporting Dr. Brooks' opinion of
debilitating limitations. 4
Finally, the court finds no error in the ALl's decision to give more credence to the
residual functional capacity assessment of Dr. Cannon, the state agency reviewing psychiatrist,
who detennined that plaintiff can make simple decisions and carry out short, simple
instructions, and concluded that he can perfonn unskilled work. (R.67-76). Plaintiff suggests
this opinion should have been afforded less weight than Dr. Brooks' opinion because Dr.

4 Although plaintiff does not challenge explicitly the AU's credibility detennination in this
appeal, the court nevertheless finds no error in the AU's evaluation of plaintiffs SUbjective allegations of
his limitations. As required under the regulations, the AU properly considered plaintiffs subjective
complaints in light of the medical evidence and all of the other evidence of record, including plaintiffs
daily activities (20 C.F.R. §§404.1529( c) and 416.929( c); see also SSR 96-7p) and did a thorough job in
her decision explaining why plaintiff'S statements concerning "the intensity, persistence and limiting effects
of [her] symptoms are not credible" to the extent they conflict with the AU's residual functional capacity.
(R. 15-16).

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Cannon did not treat or examine plaintiff but merely reviewed the record. However,
"[a]lthough treating and examining physician opinions often deserve more weight than the
opinions of doctors who review records ... [s]tate agent opinions merit significant consideration
as well." Chandler, 667 F.3d at 361.
Pursuant to the Regulations, state agency medical consultants are considered to be
"highly qualified physicians ... who are also experts in Social Security disability evaluation."
20 C.F.R. §§404.1S27(e)(2)(i) and 416.927(e)(2)(i). Accordingly, while not bound by findings
made by reviewing physicians, the AL] 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.
§§404.lS27(e)(2)(ii) and 416.927(e)(2)(ii); SSR 96-6p. The AL] did so here and, having
concluded that Dr. Cannon's opinion was more consistent with the totality of the evidence than
that of Dr. Brooks, she properly gave Dr. Cannon's opinion greater weight. (R. 16-17).
The court also finds no merit to plaintiffs argument that the AL] improperly relied on
Dr. Cannon's assessment because it was submitted over a year before the hearing and thus was
rendered without the benefit of subsequent treatment and therapy records, including Dr.
Brooks' assessment. The Third Circuit Court of Appeals has rejected the argument that the
mere lapse of time between a state agency physician's review of the record and the subsequent
administrative hearing makes it improper for the AL] to rely on the opinion. See Chandler, 667
F.3d at 361 (recognizing that "[the Social Security regulations impose no limit on how much
time may pass between a report and the ALl's decision in reliance on it"). Rather, it is for the
AL] to determine whether subsequent medical evidence impacts the earlier findings. Id. (citing
SSR 96-6p). Here, it is clear that the ALJ considered all of the medical evidence, including the
treatment records from plaintiff s therapist and Dr. Brooks' assessment, but determined that the
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subsequent medical evidence did not alter Dr. Cannon's finding that plaintiff could perform
simple, unskilled work. (R. 15-17). Accordingly, the ALl did not err in giving more weight to
Dr. Cannon's opinion.
It is axiomatic in social security cases that the ALl must give some indication ofthe

evidence that she rejects and the reasons for discounting that evidence. Fargnoli, 247 F.3d at
43. Here, the ALl reviewed and discussed all of the pertinent medical evidence and thoroughly
explained her reasons for giving less weight to the opinion of Dr. Brooks and greater weight to
that of Dr. Cannon. The court has reviewed the ALl's decision and the record as a whole and
is satisfied that the AU's evaluation of the medical evidence is supported by substantial
evidence.
Plaintiff s final argument is that the ALl's residual functional capacity finding and
resultant hypothetical to the vocational expert were incomplete because the ALl failed to
include the limitations contained in Dr. Brooks' assessment. However, as just discussed, the
more restrictive limitations advanced by Dr. Brooks are not supported by the objective medical
evidence or other evidence of record. As a hypothetical to the vocational expert must reflect
only those impairments and limitations supported by the record, the ALl did not err in rejecting

5 Residual functional capacity is defined as the most an individual still can do in a work setting
despite the limitations caused by his impairments. Fargnoli, 247 F.3d at 40; 20 C.F.R. §§404.1545(a)(l)
and 416.945(a)( 1). Residual functional capacity is an assessment of an individual's ability to do sustained
work-related physical and mental activities in a work-setting on a regular and continuing basis, which
means "8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p. In assessing
residual functional capacity, the AU is to consider all of the relevant medical and other evidence in the
case record in determining the individual's ability to meet the physical, mental, sensory and other
requirements of work. 20 C.F.R. §§404.1545(a)(3)-(4) and 416.945(a)(3)-(4); SSR 96-8p. In regard to
mental abilities, the AU first must assess the nature and extent of the claimant's mental limitations and
restrictions and then determ ine the claimant's residual functional capacity for work activity on a regular and
continuing basis. 20C.F.R. §§404.1545(c) and 416.945(c). The AU's residual functional capacity finding
must '''be accompanied by a clear and satisfactory explication ofthe basis on which it rests.'" Fargnoli, 577
F3d at 41 (citation omitted).

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a response to a hypothetical incorporating limitations not supported by the medical evidence.

See Jones, 364 F.3d at 506 (ALJ has authority to disregard vocational expert's response to
hypothetical inconsistent with evidence).
The court is satisfied that the ALJ's residual functional capacity finding in this case is
supported by substantial evidence as outlined in the decision and that the ALJ's hypothetical to
the vocational expert incorporating that residual functional capacity finding adequately
accounted for all of plaintiffs mental and physical limitations that are supported by the
objective evidence. Podedwomy v. Harris, 745 F.2d 210 (3d Cir. 1984)(RFC and hypothetical
to the vocational expert must reflect only those impairments and limitations supported by the
record). Accordingly, the vocational expert's response to that hypothetical indicating that,
despite those restrictions, plaintiff retains the ability to perform the identified light jobs,
constitutes substantial evidence supporting the ALJ's finding that plaintiff is not disabled.
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 ALJ'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

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cc:

Karl E. Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Colin Callahan
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

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