VICARI v. COLVIN

Filing 14

MEMORANDUM JUDGMENT ORDER denying 9 plaintiff's Motion for Summary Judgment and granting 11 defendant's Motion for Summary Judgment. The decision of the Acting Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 3/23/16. (kw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CARRIE ANNE VICARI,
Plaintiff,

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

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Civil Action No. 14-1372

MEMORANDUM JUDGMENT ORDER

AND NOW, this 23 rd day ofMarch, 2016, upon consideration ofthe parties' cross-motions
for summary judgment pursuant to plaintiff s request for review of the decision of the Acting
Commissioner ofSocial Security ("Acting Commissioner") denying her applications for disability
insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI,
respectively, ofthe Social Security Act, ITIS ORDERED that the Acting Commissioner's motion
for summary judgment (Document No. 11) be, and the same hereby is, granted and plaintiff's
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 if it would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). Moreover, it is well settled that disability is not determined merely by the
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presence ofimpairments, but by the effect that those impairments have upon an individual's ability

to perfonn substantial gainful activity. Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991). 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 conclusions.
Plaintiff filed her applications for DIB and SSI on March 24, 2011, alleging disability
beginning on December 31, 2008, due to depression, anxiety, bipolar disorder and ulcers.
Plaintiffs applications were denied. At plaintiffs request, an ALl held a hearing on February 11,
2013, at which plaintiff appeared and testified while represented by counsel. On April 18,2013,
the ALl issued a decision finding that plaintiff is not disabled. The Appeals Council denied
plaintiffs request for review on August 5,2014, making the ALl's decision the final decision of
the Acting Commissioner. The instant action followed.
Plaintiff, who has a high school education and some college, was 32 years old on her
alleged onset date, and is classified a younger individual under the regulations. 20 C.F.R.
§§404.l563(c), 416.963(c). Plaintiff has past relevant work experience as a phlebotomist and a
receptionist, but she has not engaged in substantial gainful activity at any time since her alleged
onset date.
After reviewing plaintitrs medical records and hearing testimony from plaintiff and a
vocational expert at the hearing, the ALl concluded that plaintiffis not disabled within the meaning
ofthe Act. The ALl first found that plaintiff suffers from the severe impainnents of degenerative
disc disease ofthe lumbar spine, peptic ulcers, cervico-thoracic scoliosis, congenital fusion at C5-6,
bilateral carpal tunnel syndrome, status post right carpal tunnel release, obesity, major depressive
disorder, anxiety disorder and substance abuse disorder; however, those impainnents, alone or in
combination, do not meet or equal the criteria of any of the listed impainnents set forth in
Appendix 1 of20 C.F.R., Subpart P, Regulation No.4 ("Appendix 1").

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The ALJ next found that plaintiff retains the residual functional capacity to perform a range
ofwork between sedentary and light with a sit/stand option and a number ofadditional limitations.
Plaintiff is restricted to lifting 10 pounds occasionally and 3 to 5 pounds frequently and can
perform only occasional postural maneuvers, but she can never crawl. In addition, plaintiff is
limited to simple, routine, repetitive work that is not fast paced, as well as simple work decisions.
Further, plaintiff is limited to incidental collaboration with the public and co-workers, and a
maximum of30 minutes of collaboration with a supervisor in a workday. Finally, plaintiff must
avoid cold air temperatures and moving machinery (collectively, the "RFC Finding").
The ALJ concluded that plaintiff is unable to perform her past relevant work because it
exceeds her residual functional capacity. However, based upon testimony by a vocational expert,
the ALJ determined that plaintiff is capable of performing other work that exists in significant
numbers in the national economy, such as a mail clerk, packer or alarm monitor. Accordingly, the
ALJ 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 [her] previous work but cannot,
considering [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).
The Social Security Regulations specifY a five-step sequential evaluation process for
determining whether a claimant is disabled. The ALJ must assess: (1) whether the claimant
currently is engaged in substantial gainful activity; (2) ifnot, whether she has a severe impairment;
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(3) if so, whether her impairment meets or equals the criteria listed in Appendix 1; (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 that exists in the national economy, in light
of her age, education, work experience and residual functional capacity.!

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 step 5 finding is not supported by substantial
evidence for the following reasons: (1) the ALJ failed to properly weigh certain medical opinions;
(2) the RFC Finding does not account for all ofplaintiffs limitations; (3) the hypothetical question
posed to the vocational expert was incomplete; and (4) the ALJ did not properly evaluate plaintiffs
credibility. For reasons explained below, each of these arguments is without merit.
Plaintiff first argues that the ALJ failed to properly weigh the medical opinions ofDr. Hugh
Shearer, who was her primary care physician, Dr. Patricia Jarrett and Dr. Linda Humpreys, who
were her treating psychiatrists, and Dr. Robert Eisler, who performed a one-time psychiatric
evaluation ofplaintiff. According to plaintiff, the ALJ should have given their respective opinions
substantial weight. For reason explained below, we conclude that the ALJ fully considered and
properly weighed the medical opinions issued in this case.
Dr. Shearer completed a physical capacity evaluation form report on which he indicated that
plaintiff would need to lie down two hours during the workday. (R. 575). The ALJ gave Dr.
Shearer's opinion on that matter little weight because he found it was unsupported by objective
findings. (R. 28).

lResidual functional capacity is defined as that which an individual still is able to do despite the
limitations caused by her impairments. 20 C.F.R. §§404.l545(a)(l), 916.945(a)(l). In assessing a
claimant's residual functional capacity, the AU is required to consider the claimant's ability to meet the
physical, mental, sensory and other requirements of work. 20 C.F.R. §§404.l545(a)(4), 416.945(a)(4).
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A treating physician's opinion is entitled to controlling weight ifit is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence of record. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2). Under this
standard, the ALJ properly determined that Dr. Shearer's opinion was entitled to little weight.
As the ALJ explained, Dr. Shearer's opinion that plaintiff purportedly needs to lie down two
hours during an eight-hour workday is inconsistent with other evidence of record. The ALJ noted
that a lumber MRI taken in July, 2012, showed only "mild multilevel degenerative changes." (R.
28,552). In addition, as the ALJ observed, plaintiff has not undergone surgery or other aggressive
treatment for her back problems. Further, Dr. Shearer's treatment note of January 21,2013, states
"[pJain is controlled for sedentary work!ADL." (R. 584). Dr. Shearer's opinion that plaintiff could
engage in sedentary work and activities ofdail y living undercuts his assessment that she would need
to lie down two hours during the workday. Moreover, Dr. Shearer's records do not otherwise offer
any support for his opinion that plaintiff must lie down for two hours during the workday.
Accordingly, the court finds no error in the ALJ's consideration and weighing of Dr. Shearer's
opinion.
Plaintiff next complains that the ALJ improperly disregarded OAF scores issued by Drs.
Jarrett, Humphreys and Eisler and gave their opinions inadequate weight. Plaintiff is incorrect.
OAF is a numeric scale that has been used by mental health clinicians and physicians to rate
subjectively the social, occupational and psychological functioning of adults. However, the latest
edition ofthe Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer includes
the OAF scale as a measurement tool. See Hughes v. Commissioner of Soc. Sec., 2016 WL
231676, at *2 n.2 (3d Cir. Jan. 20,2016) (noting that DSM-5 abandoned the OAF scale).
Moreover, courts have recognized that a claimant's OAF score is not determinative of disability.
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See Gilroy v. Astrue, 351 Fed. Appx. 714, 715 (3d Cir. 2009) (recognizing that GAF scores do not
have a direct correlation to the severity requirements ofthe Social Security mental disorder listings,
and determining that a low GAF score is not conclusive evidence of a mental disability); Wind v.
Barnhart, 2005 WL 1317040, *6 n.5 (11 th Cir. 2005) (noting that the Commissioner has declined
to endorse the GAF scale for use in the Social Security and SSI disability programs). Although
one's GAF score alone is not controlling, the ALJ's decision makes clear that he considered
plaintiff s various GAF scores and assigned that evidence appropriate weight.
The ALJ explained that he gave Dr. Jarrett's findings and GAF assessment of65 significant
weight. (R. 28,496). The ALJ's decision in that regard is supported by Dr. Jarrett's treatment
notes which indicate plaintiff was pleasant and cooperative, she had organized thoughts, fair
judgment and insight, good attention and generally intact memory for fair and recent events. CR.
439). In addition, Dr. Jarrett rated plaintiff as having unlimited ability to follow work rules, use
judgment, function independently, maintain attention and concentration, maintain personal
appearance and behave in an emotionally stable manner and fair ability to demonstrate reliability.
(R.494-95). After reviewing the record, we find that the ALJ appropriately gave Dr. Jarrett's
findings substantial weight. 2
Likewise, the ALJ properly determined that GAF scores of 30 issued by Dr. Eisler and 50
issued by Dr. Humpreys were entitled to little weight. CR. 28). Dr. Eisler evaluated plaintiff on
only one occasion and rated her GAF score at 30, which indicates serious mental health symptoms.

2The AU gave substantial weight to the majority of Dr. Jarrett's findings; however, plaintiff
complains that the AU gave inadequate weight to Dr. Jarrett's GAF rating of45 on one occasion. (R. 440).
The AU was not required to accept every finding made by Dr. Jarrett, especially one that was inconsistent
with the majority of her findings discussed above indicating plaintiffs mental functioning was within
normal limits. As the Third Circuit has explained, "no rule or regulation compels an AU to incorporate
into an RFC every finding made by a medical source simply because the AU gives the source's opinion
as a whole 'significant' weight." Wilkinson v. Commissioner of Soc. Sec., 558 Fed. Appx. 254,256 (3d
Cir.2014).
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(R. 27, 498). As the ALl noted, despite Dr. Eisler's OAF rating, he did not recommend the
intensive care that would be required for an individual with such serious mental limitations.
Moreover, Dr. Eisler's low OAF score is not supported by his examination findings, which
indicated plaintiffs mental status performance was adequate. (R. 28, 497-98). Similarly, Dr.
Humpreys' mental status examination indicated plaintiff was alert and fully oriented, she had good
judgment and insight and average cognitive function. (R. 651). Therefore, the ALl correctly
decided to attribute little weight to OAF scores issued by Dr. Eisler and Dr. Humpreys because they
were not supported by the record.
Plaintiff next argues that the RFC Finding fails to account for Dr. Shearer's opinion that
plaintiff must lie down two hours during the workday, as well as mental limitations identified by
Dr. Eisler. As already explained, the ALl properly gave the opinions ofDr. Shearer and Dr. Eisler
little weight, thus the ALl was not required to include in the RFC Finding any unsubstantiated
limitations they identified. However, although the ALl assigned little weight to the opinions
proffered by Dr. Shearer and Dr. Eisler, he nonetheless gave plaintiff the benefit of the doubt in
crafting the RFC Finding by sharply limiting plaintiff to accommodate her credibly established
physical and mental limitations.
Plaintiff also argues that the ALl's hypothetical question to the vocational expert was
incomplete because it did not include the limitations identified by Dr. Shearer and Dr. Eisler. As
discussed above, the ALl properly discounted Dr. Shearer's and Dr. Eisler's assessment, thus there
was no need for the ALl to incorporate their findings in the hypothetical question.
An ALl's hypothetical to a vocational expert must reflect all ofthe claimant's impairments
and limitations supported by the medical evidence. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d
Cir. 1987). Here, the ALl's hypothetical incorporated all of plaintiff s limitations resulting from
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her impairments that were supported by the evidence ofrecord, including all ofthe factors that were
the basis of the RFC Finding.

Accordingly, the ALJ did not err in relying on the vocational

expert's testimony to conclude that plaintiff can perform work that exists in the national economy.
Plaintiff s final argument - that the ALJ did not properly evaluate her credibility concerning
her subjective complaints of pain - also is without merit. As required by the Regulations, the ALJ
evaluated plaintiff's credibility by considering all of the relevant evidence in the record, including
plaintiff's own statements about her symptoms and limitations, her activities of daily living, the
medical evidence of record, the extent of plaintiff's treatment and the opinions of physicians who
treated and examined her. See 20 C.F.R. §§404.1529(c)(l) and (c)(3), 416.929(c)(l) and (c)(3);
Social Security Ruling 96-7p. The ALJ then considered the extent to which plaintiff's alleged
functional limitations reasonably could be accepted as consistent with the evidence of record and
how those limitations affect her ability to work. 20 C.F.R. §§404.1S29(c)(4), 416.929(c)(4). The
ALJ concluded that the objective evidence is inconsistent with plaintiff's allegation of total
disabling limitations, and thus determined that plaintiff s testimony regarding her pain and
limitations was not entirely credible. (R. 23-34). This court finds that the ALJ adequately
explained the basis for his credibility determination, (R. 24-28), and is satisfied that such
determination is supported by substantial evidence. See Schaudeck v. Commissioner ofSoc. Sec.,
181 F.3d429, 433 (3d Cir. 1999) (an ALJ may reject the claimant's subjective testimony ifhe does
not find it credible so long as he explains why he is rejecting the testimony),
In conclusion, after carefully and methodically considering the medical evidence in this
case, the ALJ determined that plaintiff is not disabled within the meaning of the Act. The ALl's

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findings and conclusions are supported by substantial evidence and are not otherwise erroneous.
Therefore, the decision of the Acting Commissioner must be affirmed.

sl Gustave Diamond

Gustave Diamond
United States District Judge

cc:

Christine M. Nebel, Esq.
220 South Main Street
Suite D
Butler, PA 16001
Michael Colville
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

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