DOONAN v. COLVIN

Filing 16

MEMORANDUM AND ORDER OF COURT denying 10 Plaintiff's Motion for Summary Judgment and granting 14 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 3/21/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHELLE LYNN DOONAN,
Plaintiff,

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

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Civil Action No. 15-111

MEMORANDUM AND ORDER OF COURT
AND NO W, this

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tf'of March, 2016, upon due consideration ofthe parties' cross-

motions for summary judgment relating to plaintiffs request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiff's application for disability
insurance benefits under Title II of the Social Security Act ("Act"), IT IS ORDERED that the
Commissioner's motion for summary judgment (Document No. 14) be, and the same hereby is,
granted and plaintiffs motion for summary judgment (Document No. 10) 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,
even if it 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 her pending application for disability insurance benefits on
January 30,2012, alleging a disability onset date of December 1,2011, due to a variety ofphysical
and mental impairments.! Plaintiff s application was denied initially. At plaintiff s request an ALJ
held a hearing on April 3, 2013, at which plaintiff, represented by counsel, appeared and testified.
On April 8, 2013, the ALJ issued a decision finding that plaintiff is not disabled. On December
23,2014, the Appeals Council denied review making the ALJ's decision the final decision of the
Commissioner.
Plaintiff was 44 years old at the time of the ALJ's decision and is classified as a younger
person under the regulations. 20 C.F .R. §404.1563(d). She has at least a high school education
and has past relevant work experience as a legal assistant and a body wrapper, but she has not
engaged in any substantial gainful activity since her 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 ALJ found that although plaintiff has the severe impairments of obesity; deQuervain's
tenosynovitis of the right wrist; degenerative joint disease of the shoulders, hips and knees;
fibromyalgia; asthmatic bronchitis and asthma; migraine headaches; and major depression,
those impairments, alone or in combination, do not meet or equal the criteria of any of the
impairments listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to engage in
work at the sedentary exertionallevel but with numerous restrictions necessary to

Plaintiff identified the following conditions in her application: depression, chronic obstructive
pulmonary disease (COPD), allergies, asthma, memory loss, fibromyalgia, irritable bowel syndrome, bile
salt malabsorption, Keinbocks Disease, right wrist/ulna shortening, acid reflux, arthritis, herniated disc in
neck, migraines/tension headaches, and psychiatric problems. (R. 126).
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accommodate her physical and mental impairments.2 Taking into account these restrictions, a
vocational expert identified numerous categories ofjobs which plaintiff can perform based
upon her age, education, work experience and residual functional capacity, including ticket
seller, telephone solicitor and telephone clerk. Relying on the vocational expert's testimony,
the ALJ found that although plaintiff cannot perform her past relevant work, she 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). 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).
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.

2 Specifically, the ALl detennined that plaintiff has the residual functional capacity to perfonn
sedentary work except with a sit/stand option at intervals of about one half hour; she is limited to no more
than occasional fingering with the dominant right hand; she should avoid exposure to respiratory irritants
of any kind; and, she is limited to the perfonnance of simple and repetitive tasks that would not require
concentration upon detailed or complex matters. (R. 18).

The ALl must detennine: (I) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impainnent; (3) if so, whether her impainnent meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix I; (4) if not, whether the claimant's
impainnent prevents her from perfonning her past-relevant work; and, (5) if so, whether the claimant can
perfonn 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. §404.1520; Newell v. Commissioner of Social
Security, 347 F 3d 541, 545 (3d Cir. 2003). In addition, when there is evidence ofa mental impainnentthat
allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating
mental impainnents set forth in the regulations. Plummer, 186 F3d at 432; 20 C.F.R. §404.1520a.
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§404.1520. 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).
Here, plaintiff raises two challenges to the ALl's finding of not disabled: (1) the ALl
improperly evaluated the medical evidence; and, (2) the ALl erroneously relied on the
vocational expert's response to a hypothetical question that failed to incorporate all of the
limitations arising from plaintiffs impairments. Upon review, the court is satisfied that the
ALl correctly evaluated the medical evidence under the appropriate standards and that all of the
ALl's findings are supported by substantial evidence.
Plaintiffs first argument is that the ALl improperly analyzed and weighed the medical
evidence. Specifically, she argues that the ALl failed to give controlling weight to the opinion
of Dr. Leatherby, a clinical psychologist, who found "marked" to "extreme" limitations in all
areas of work-related mental functioning, (R. 432-33), and instead improperly gave greater
weight to the opinions of the non-examining state agency medical sources.4 Upon review, the
court is satisfied that the ALl's evaluation of the medical evidence is supported by substantial
evidence.

Plaintiff also references an opinion letter from her treating physician, Dr. Musser, summarizing
his treatment of plaintiff for chronic headaches, cognitive complaints and fatigue. (R. 629). However, this
letter was presented for the first time to the Appeals Council and cannot be considered by this court on
substantial evidence review. Nor is plaintiff entitled to a remand for consideration of this letter. When a
claimant proffers evidence in the district court that previously was not presented to the ALJ, the district
court's determination of whether to remand to the Comm issioner is governed by Sentence 6 of §405(g) of
the Act. See Matthews v. Apfel, 239 FJd 589, 593 (3d Cir. 2001). Sentence 6 permits remand "only upon
a showing that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding." See also Szubak v. Secretary of HeaIth
& Human Services, 745 F.2d 831, 833 (3d Cir. 1984). n[A] claimant must satisty all three requirements
of Sentence 6 (new, material and good cause) in order to justity a remand." Matthews at 594; Szubak at
833. Here, plaintiff cannot show that Dr. Musser's letter report is new or material, nor has she even
attempted to show good cause for not presenting it to the ALJ.
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The rules by which the ALl 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.
§404.1527(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.
§404.1527(c).
Importantly, the opinion of any physician, including a treating physician, as to the
claimant's residual functional capacity, or on the ultimate determination of disability, never is
entitled to special significance. 20 C.F.R. §404.1527(d); SSR 96-5p. "The law is clear ... that
the opinion of a treating physician does not bind the ALl 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.l527(d)(2) and (3); §404.1546(c).
Here, the ALl adhered to the foregoing standards in evaluating the medical evidence.
The ALl specifically addressed all of the opinions from all of the relevant medical sources and
discussed the weight he was giving to each of those opinions. In particular, he explained why
he was assigning "little weight" to the opinion of Dr. Leatherby, finding it to be inconsistent

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with the narrative findings set forth in the testing report, which indicated nonnal intelligence
and "most measurements of memory falling within the average range." (R. 19). In addition,
the ALl noted that Dr. Leatherby was not a treating source within the meaning of the
Regulations, that he did not perfonn a thorough psychiatric or psychological evaluation, and
that the testing was perfonned while plaintiff was experiencing short-tenn emotional distress
from the recent loss of her job. Id. Rejecting the debilitating limitations set forth by Dr.
Leatherby, the ALJ instead chose to give substantial weight to the opinion of the state agency
psychologist, who found that plaintiff has the ability to "meet the basic mental demands of
competitive work and [can] function in production oriented jobs not involving undue work
pressures and changes," (R. 20), and to the opinion of the state agency physician, who found
that plaintiff can work at the sedentary exertionallevel. (R.19-20).
The court finds no error in the ALJ's decision to give more credence to the assessments
of the state agency physician and psychologist. It is well-settled that "[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. §404.1527(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. §404.1527(e)(2)(ii);
SSR 96-6p. The ALJ did so here and, having concluded that the opinions of the state agency
reviewing sources are more consistent with the totality of the evidence than those of the
treating sources, he properly gave the reviewing opinions greater weight.
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It is axiomatic in social security cases that the ALJ must give some indication of the

evidence that he rejects and the reasons for discounting that evidence. Fargnoli, 247 F.3d at
43. Here, the ALJ reviewed and discussed all of the pertinent medical evidence and thoroughly
explained his reasons for giving the weight that he gave to all of the medical source opinions.
The court has reviewed the ALJ'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.
Plaintiff s remaining argument is that the ALl's residual functional capacity finding
and hypothetical to the vocational expert failed to account for all of plaintiffs work-related
limitations, specifically, limitations requiring her to have hour-long rest breaks twice a day in
addition to normal breaks and requiring her to miss work more than one day per month.
Plaintiff contends that the ALJ improperly rejected the vocational expert's testimony that these
additional limitations would preclude employment. (R. 40).
However, the more restrictive limitations advanced by plaintiff are not supported by the
objective medical evidence. The ALJ expressly addressed this issue and rejected the additional
limitations because he found them to be based on plaintiffs subjective statement that she needs
to take a nap twice a day, which the ALJ found to be not entirely credible.6 (R. 21).
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)(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 ALJ 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); SSR 96-8p. The ALl's residual functional capacity finding must '''be
accompanied by a clear and satisfactory explication of the basis on which it rests.'" Fargnoli, 577 FJd at
41 (citation omitted).
6 Although plaintiff does not challenge explicitly the ALJ's credibility determination in this
appeal, the court nevertheless finds no error in the ALJ's evaluation of plaintiffs subjective allegations of
her limitations. As required under the Regulations, the ALJ properly considered plaintiffs subjective
statements in Iight ofthe objective medical evidence as well as all ofthe other factors relevant to plaintiff's

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As a hypothetical to the vocational expert must reflect only those impairments and
limitations supported by the record, the ALJ did not err in rejecting a response to a hypothetical
incorporating limitations not supported by the medical evidence. See Jones v. Barnhart, 364
F.3d 501,506 (3d Cir. 2004)(ALl has authority to disregard vocational expert's response to
hypothetical inconsistent with evidence).
The court is satisfied that the ALl's residual functional capacity finding in this case is
supported by substantial evidence as outlined in the decision and that the ALl's hypothetical to
the vocational expert incorporating that residual functional capacity finding adequately
accounted for all of plaintiff s mental and physical limitations that are supported by the
objective evidence. Podedworny 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 sedentary 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 ALl's findings and conclusions are supported by substantial evidence and are not
otherwise erroneous. Accordingly, the decision of the Commissioner must be affirmed.

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Gustave Diamond
United States District Judge

symptoms as set forth in 20 C.F.R. §404.1529(c). See also SSR 96-7p. The ALl did a thorough job in his
decision explaining why plaintiffs statements concerning "the intensity, persistence and limiting effects"
of her symptoms are "not entirely credible," (R. 18-19), and his evaluation is supported by substantial
evidence as outlined in his decision.
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cc:

Steven F. Kessler, Esq.
332 Fifth Avenue
Suite 310-A
McKeesport, PA 15132
Colin Callahan
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

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