CONLEY v. COLVIN

Filing 16

ORDER denying 11 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/31/2016. (lwp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHANE LEE CONLEY,

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) Civil Action No. 15-261
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Plaintiff,
v.

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

ORDER
AND NOW, this 31st day of March, 2016, upon consideration of the parties=
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security=s final decision, denying Plaintiff=s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. ' 401, et seq., and denying Plaintiff=s claim
for supplemental security income benefits under Subchapter XVI of the Social Security Act, 42
U.S.C. ' 1381, et seq., finds that the Commissioner=s findings are supported by substantial
evidence and, accordingly, affirms.

See 42 U.S.C. ' 405(g); Jesurum v. Secretary of U.S. Dep’t

of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v. Bowen, 845
F.2d 1211, 1213 (3d Cir. 1988); see also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa.
1990) (if supported by substantial evidence, the Commissioner=s decision must be affirmed, as a
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federal court may neither reweigh the evidence, nor reverse, merely because it would have
decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

1

Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by: (1) improperly
assessing certain medical opinions in the record; (2) incorrectly determining Plaintiff’s residual
functional capacity (“RFC”); (3) disregarding the testimony of the Vocational Expert (“VE”) and
relying on an incomplete hypothetical question to the VE; (4) improperly evaluating Plaintiff’s
subjective complaints of pain; and (5) failing to provide Plaintiff with a full and fair hearing
because of the ALJ’s alleged bias. The Court disagrees and finds that substantial evidence
supports the ALJ’s findings as well as his ultimate determination, based on all the evidence
presented, of Plaintiff’s non-disability.

Regarding Plaintiff’s first and second arguments, which are intertwined, it is
well-established that “[t]he ALJ—not treating or examining physicians or State agency
consultants—must make the ultimate disability and RFC determinations.” Chandler v. Comm’r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 404.1546(c)).
“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). In fact, a
treating physician’s opinion is only 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 in [the claimant’s] case record.” Fargnoli v. Massanari, 247 F.3d
34, 43 (3d Cir. 2001) (quoting 20 C.F.R. § 404.1527(c)(2)). “If, however, the treating
physician's opinion conflicts with other medical evidence, then the ALJ is free to give that
opinion less than controlling weight or even reject it, so long as the ALJ clearly explains [his or]
her reasons and makes a clear record.” Salles v. Comm’r of Soc. Sec., 229 Fed. Appx. 140, 148
(3d Cir. 2007). Thus, a treating physician’s opinion on the ultimate issue of disability is not
entitled to any “special significance,” and an ALJ is not required to accept it since the
determination of whether an individual is disabled “is an ultimate issue reserved to the
Commissioner.” Smith v. Comm’r of Social Sec., 178 Fed. Appx. 106, 112 (3d Cir. 2006).
Accordingly, the Court finds no merit in Plaintiff’s contention regarding the ALJ’s
decision not to give controlling weight to the opinion rendered by treating physician Richard
Latuska, M.D., from December 14, 2011. (R. 601-02). The Court finds that the ALJ did not,
as Plaintiff alleges, improperly reject the report of Dr. Latuska in formulating Plaintiff’s RFC.
Instead, the ALJ fulfilled his duty as fact-finder to evaluate Dr. Latuska’s opinion, considering a
number of factors, and in light of all the evidence presented in the record. See 20 C.F.R.
§§ 404.1527, 416.927. In fact, the ALJ thoroughly reviewed Plaintiff’s medical records,
including those related to Dr. Latuska’s treatment, and specified that he was giving Dr. Latuska’s
opinion “little weight,” explaining that it “is not explained or supported by objective evidence,
and is not consistent with the other evidence of record.” (R. 26).
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Moreover, the ALJ noted that the opinion of Dr. Latuska is provided on a form for the
Pennsylvania Department of Public Welfare. (R. 26). Thus, the opinion at issue here is
actually an administrative “Employability Assessment Form” that was simply filled out by the
doctor, and consists of options to check and blanks to be filled in by hand. (R. 601-02). The
Court of Appeals for the Third Circuit has stated that “[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.” Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). Thus, the Court agrees with the ALJ that Dr.
Latuska’s opinion lacks significant discussion, explanation or details to justify his statements
contained therein, and the Court finds that the ALJ sufficiently explained his reasons for
declining to give Dr. Latuska’s opinion controlling weight.
Plaintiff also contends that the ALJ did not properly weigh the opinion of consultative
psychological examiner Martin Meyer, Ph.D., in formulating Plaintiff’s RFC. (R. 585-92).
The Court notes, however, that the ALJ reviewed Dr. Meyer’s report in detail, but ultimately
gave “limited weight” to his opinion of slight limitations in Plaintiff’s ability to understand,
remember, and carry out short, simple instructions; moderate limitations in his ability to
understand, remember, and carry out detailed instructions; marked limitations in his ability to
interact appropriately with the public; slight limitations in the ability to interact appropriately
with supervisors; moderate limitations in his ability to interact appropriately with coworkers;
marked limitations in his ability to respond appropriately to work pressures in a usual work
setting; and slight limitations in his ability to respond appropriately to changes in a routine work
setting. (R. 28-29). While the ALJ did not specifically discuss Plaintiff’s one-time GAF score
of 50 assigned by Dr. Meyer, GAF scores are no longer included in the DSM-V and are not
dispositive of the issue of disability under the regulations, and the Court notes that the ALJ did
thoroughly review Dr. Meyer’s examination and findings which formed the basis for that GAF
score. See Rios v. Comm’r of Soc. Sec., 444 Fed. Appx. 532, 535 (3d Cir. 2011); 65 Fed. Reg.
50746-01, 50764-65 (2000). The ALJ also compared Dr. Meyer’s report with records from
Plaintiff’s visits to his primary care physician, noting that Plaintiff’s “treatment records indicate
that he has normal mental status and is managed with conservative treatment.” (R. 29). The
ALJ thus ultimately found that Plaintiff’s “subjective complaints reflect a higher degree of
impairment than is reflected in observations from his treating sources or his treatment history.”
(R. 29).
Finally, the ALJ concluded that he was giving “more weight to the opinions of the State
agency medical consultants, who opined that [Plaintiff] is able to perform basic work activity
despite his impairments.” (R. 29, 83-98). The ALJ found that those opinions “are consistent
with [Plaintiff’s] treatment history, activities of daily living, objective findings, and mental status
examinations.” (R. 29). Although Plaintiff would prefer that the Court rely on Dr. Meyer’s
opinion, the Court of Appeals for the Third Circuit has stated that, in making an RFC
determination, an ALJ may give more weight to a non-examining professional’s opinion if that
opinion is better supported by the record. See Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx.
208 (3d Cir. 2005) (affirming an ALJ’s decision to credit the opinion of a non-examining state
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agency reviewing psychologist, rather than the opinions of a treating physician and a consultative
examiner). As in Salerno, the record here establishes that the ALJ was likewise entitled to give
more weight to the state agency examiners’ opinions than to that of a consultative examiner.
Plaintiff argues, additionally, that the ALJ did not adequately address the limitations
identified by state agency physician Mary Ellen Wyszomierski, M.D. First, because in his
hypothetical question to the VE the ALJ asked whether jobs exist at the light exertional level that
the hypothetical individual could perform, Plaintiff’s contention that the ALJ’s failure to
consider Dr. Wyszomierski’s limitation of Plaintiff to work at the medium exertional level is
irrelevant. (R. 72-73). As to the ALJ declining to address the non-exertional limitations listed
by Dr. Wyszomierski, the Court notes that, as other courts have agreed, the need to “only
occasionally perform postural activities, no climbing ladders, ropes or scaffolds, and need to
avoid concentrated exposure to excessive vibration or work hazards does not significantly erode
the ability to perform sedentary and light work as most jobs at these exertion levels do not
require these activities.” Atkinson v. Barnhart, 2006 WL 1455473, *6 (D. Nev. May 19, 2006);
see also Lassor v. Astrue, 2007 WL 2021924, at *4 (D. Maine July 11, 2007) (holding that,
where the ALJ did not address non-exertional impairments found by a state agency reviewer,
“the determination that a claimant’s capacity to perform the full range of sedentary or light work
is not significantly diminished by her non-exertional impairments can be made without the
introduction of testimony from a vocational expert”); Penaloza-Clemente v. Sec’y of Health &
Human Servs., 1993 WL 33329, at **5-6 (1st Cir. Feb. 12, 1993) (noting that where
non-exertional limitations would not significantly erode the occupational base, an ALJ may rely
exclusively on the Grid and need not utilize a VE). Therefore, as the limitations of occasionally
climbing ladders, ropes and scaffolds, and avoiding concentrated exposure to vibration and
hazards do not significantly erode the light work base, the ALJ did not need to introduce
testimony to determine that Plaintiff’s capacity to perform the full range of light work is not
significantly diminished by such impairments. See Goble v. Comm’r of Soc. Sec., 2012 WL
832356, at *10 (N.D. Ohio Mar. 9, 2012) (“According to SSR 83-14, the limitations on climbing
ladders, ropes, poles, and scaffolds do not significantly erode the occupational base of light
work.”); Maselli v. Astrue, 2008 WL 553615, at *13 (N.D. Fla. Feb. 28, 2008) (citing SSR
85-15, stating that the limitation that a claimant avoid hazards, such as machinery or heights, due
to the risk of fainting, has been ruled to be a non-exertional limitation that does not substantially
erode the occupational base).
Thus, upon review, the Court finds that the ALJ properly discharged his duty to consider
Dr. Latuska’s opinion, Dr. Meyer’s opinion, and the other relevant evidence presented in the
record. Throughout his decision, the ALJ clearly considered all the evidence, provided
discussion of the evidence to support his evaluation, and ultimately concluded that certain
opinions of record were not supported by the evidence as a whole. Therefore, the Court finds
that substantial evidence supports the ALJ’s evaluation of the opinions presented and his
decisions as to the weight he gave to those opinions in making his ultimate determinations
regarding Plaintiff’s RFC.
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Additionally, Plaintiff argues that the Appeals Council erred in failing to remand the case
to the ALJ in light of an opinion which Plaintiff submitted to the Council with his appeal, but
which he did not present to the ALJ. Specifically, Plaintiff submitted to the Appeals Council a
physical capacity evaluation from Josh Click, Doctor of Chiropractic, from October 23, 2013,
which was dated five months after the ALJ’s decision. (R. 773-76). It is well-established that
evidence that was not before the ALJ cannot be considered by a district court in its determination
of whether or not the ALJ’s decision was supported by substantial evidence, even if it was
submitted to the Appeals Council. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001);
Chandler v. Commissioner of Soc. Sec., 667 F.3d 356, 360 (3d Cir. 2011). Accordingly, the
Court cannot rely on the additional document to which counsel cites in making such
determination here. The Court does, however, have the authority to remand a case on the basis
of new evidence under sentence six of 42 U.S.C. § 405(g), which provides, in relevant part:
[The court] may at any time order additional evidence to be taken before
the Commissioner of Social Security, but 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.
Thus, in order to remand a case based on new evidence which has not been presented to
the ALJ, the Court must determine that certain criteria have been met. First, the evidence must
be “new” and “not merely cumulative of what is already in the record.” Szubak v. Sec’y of
Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Second, the evidence must be
“material,” which means that “it must be relevant and probative,” and there must be “a
reasonable possibility that the new evidence would have changed the outcome of the Secretary’s
determination.” Id. Third, the plaintiff “must demonstrate good cause for not having
incorporated the new evidence into the administrative record.” Id.
Because the document at issue is from after the date the ALJ issued his decision, the
Court will assume that this evaluation is new and not merely cumulative of what is in the record.
However, the document substantially post-dates the ALJ’s decision, by five months, and there is
no indication that the information contained therein relates back to the time period under
consideration here. On its face, the document does not appear to opine on anything other than
Plaintiff’s current status. This evaluation is therefore not material, since it does not relate to the
relevant time period in this case. See Szubak, 745 F.2d at 833 (“An implicit materiality
requirement is that the new evidence relate to the time period for which benefits were denied,
and that it not concern evidence of a later-acquired disability or of the subsequent deterioration
of [a] previously non-disabling condition.”); Rainey v. Astrue, 2012 WL 3779167, at *8 (W.D.
Pa. Aug. 31, 2012); Harkins v. Astrue, 2011 WL 778403, at *1 n.1 (W.D. Pa. Mar. 1, 2011).
Moreover, even if the Court were to find the document to be material, Plaintiff has made
no real attempt to show good cause for failing to seek to incorporate this document into the
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administrative record prior to the time the ALJ made his decision. The only reason why
Plaintiff did not submit the evaluation to the ALJ is because, as Plaintiff explains, “this record
did not exist at the time of the decision” of the ALJ. (Doc. No. 15, at 22). Nevertheless, at the
administrative hearing, Plaintiff requested more time to obtain additional medical records, and
the ALJ provided Plaintiff with 20 days to do so. (R. 39-40). There is no indication, however,
that Plaintiff attempted to notify the ALJ of the pending evaluation to which this document
refers. Furthermore, the ALJ informed Plaintiff’s attorney at the hearing that if she ran into a
problem obtaining records, she could ask for more time. (R. 40). The ALJ also informed
Plaintiff’s attorney that if she had difficulty obtaining records, she could ask him for assistance in
compelling them and he would gladly help her. (R. 40). However, Plaintiff neither provided
the document at issue within the time period allowed, nor did Plaintiff’s attorney request
additional time in which to do so. Instead, five months later, after the ALJ had reached his
decision, Plaintiff provided the document to the Appeals Council. Therefore, even if the Court
were to assume that this document is material, because Plaintiff has not shown good cause for
failing to incorporate this document into the record before the ALJ, a new evidence remand is
not warranted.
Third, the Court finds no merit in Plaintiff’s argument that—because the ALJ allegedly
failed to include all the limitations supported by the record in his RFC—the hypothetical
question to the VE was incomplete. In fact, the hypothetical question to the VE must accurately
portray the claimant’s impairments, but such question need only reflect those impairments that
are adequately supported by the record. See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984); Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). In this case, the Court finds
that the ALJ’s hypothetical question to the VE fully accommodated the limitations that were
supported by the record, which were also properly included in the RFC. (R. 72-73).
As discussed at length, supra and infra, the ALJ accounted for the limitations that were
supported by the record when he asked the VE to assume an individual of Plaintiff’s education,
training and work experience who can work at the light exertional level, but would be limited to
simple, routine, and repetitive tasks that are not fast paced; such individual would only make
simple work decisions; such individual would be limited to incidental collaboration with
coworkers and the public and would collaborate with the supervisor 30 minutes a day; and such
individual would need three unscheduled bathroom breaks of three minutes each time during a
typical workday. (R. 72-73). Considering these limitations, the VE testified that such an
individual could perform jobs that exist in significant numbers in the national economy,
including linen folder, remnant sorter and cleaner. (R. 73). Thus, the Court finds that the ALJ
relied upon the response to an appropriate hypothetical question which included those
limitations, properly portrayed in the RFC, that were supported by the record.
Plaintiff’s fourth argument is, in essence, that the ALJ erred in evaluating his credibility
because he did not properly consider Plaintiff’s subjective complaints of pain and his need to use
the bathroom. In support of this claim, Plaintiff contends that the ALJ relied on factual errors
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and that he misinterpreted the evidence of record. The Court finds, however, that the ALJ did
properly address the evidence presented in finding Plaintiff’s statements regarding his limitations
to be not entirely credible, and that the ALJ did not mischaracterize the evidence of record in so
doing.
In determining whether a claimant is disabled, the ALJ must consider all of a
claimant’s symptoms, including allegations of pain, and the extent to which the symptoms can
reasonably be accepted as consistent with the objective medical evidence. See 20 C.F.R.
§§ 404.1529(a), 416.929(a). A claimant’s subjective complaints of pain and other symptoms
alone are not sufficient to establish disability. See id. In evaluating a claimant’s subjective
complaints, the ALJ must consider, first, whether the claimant has a medically determinable
impairment that could reasonably be expected to produce the pain or symptoms he alleges. See
20 C.F.R. §§ 404.1529(b), 416.929(b). Once an impairment is found, the ALJ then must
evaluate the intensity and persistence of the claimant’s symptoms to determine the extent to
which those symptoms limit his ability to work. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii),
416.929(c)(3)(i)-(vii) (factors relevant to symptoms can include daily activities, medications and
medical treatment).
In his decision, the ALJ discussed at significant length Plaintiff’s medical records and
Plaintiff’s own statements regarding his alleged impairments. The ALJ found that Plaintiff has
a number of severe impairments, including Crohn’s disease, irritable bowel syndrome, anxiety,
attention deficit hyperactivity disorder, and obsessive compulsive disorder.
(R. 21).
However, upon review of all the evidence, the ALJ ultimately found that the evidence as a whole
simply does not support the extreme limitations Plaintiff alleges.
For example, the ALJ explained that Plaintiff claims that he goes to the bathroom six or
seven times per eight-hour work shift, and is sometimes in the bathroom for an hour or more.
(R. 24). The ALJ also noted that, at one point in his testimony at the administrative hearing,
Plaintiff claimed to spend more time in the bathroom than there were hours in his eight hour
shift, which led the ALJ to question whether Plaintiff is exaggerating his symptoms. (R. 24).
The ALJ further noted that Plaintiff says that he has severe pain in his lower abdomen, and has to
lie down at least three or four time a week for two hours at a time. (R. 24). He also says he
makes frequent trips to the emergency room, leaves work early at least five times per month, and
calls off work three or more times per month. (R. 24). Plaintiff also claimed that he has had
severe flare-ups twice a month for the previous two years, during which he goes to the bathroom
up to 20 times per day. (R. 24). The ALJ noted, however, that Plaintiff’s complaints are not
entirely credible since, although he has frequently visited the hospital with complaints of
abdominal pain, “the objective findings are fairly minimal, his allegations of frequency of
diarrhea are not substantiated by the treatment records, and there are some indications that he
may be reporting pain in an effort to obtain pain medication.” (R. 24). Further, the ALJ stated
that Plaintiff has been able to maintain part-time employment. (R. 24).
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In reaching this conclusion, the ALJ provided an extensive review of Plaintiff’s medical
treatment. (R. 24-27). Without repeating the ALJ’s entire summary, but in order to
emphasize that the ALJ conducted a thorough analysis of the evidence, the Court notes that the
ALJ focused on the following facts. Plaintiff underwent a colonoscopy for abdominal pain in
March, 2010, and the postoperative diagnosis was questionable colitis. (R. 24). He reported
abdominal pain, nausea, vomiting and diarrhea after eating for one week in September, 2010, but
attributed his symptoms to a spider bite or needing to have his gallbladder removed.
(R. 24-25). X-rays and a CT scan showed nonobstructive bowel gas pattern and a moderate
amount of stool, but no acute abdominal or pelvic abnormalities. (R. 25). Plaintiff underwent
a laporoscopic cholecystectomy in October, 2010, after again complaining of abdominal pain.
(R. 25).
In January and February, 2011, Plaintiff complained several times of various symptoms,
and a CT of the pelvis showed questionable subtle, mild thickening of the colon, with the
possibility of very mild or low grade colitis not excluded. (R. 25). In March, 2011, Plaintiff
presented to the emergency room, and the nurse’s notes from that visit indicate that he frequently
came to the emergency room complaining of abdominal pain and that he always requested
morphine. (R. 25). He rated his pain as 10/10, but did not appear to be in distress, and the
doctor there informed him that they would not be giving him more narcotic medication.
(R. 25). He went to his treating physician a few days later, explained his symptoms, had
normal bowel sounds and no abdominal bruits, and his doctor listed differential diagnoses of
Crohn’s disease, irritable bowel syndrome, celiac sprue and ulcerative colitis. (R. 25).
Plaintiff underwent a colonoscopy and upper endoscopy, which was limited due to poor
preparation, but which showed retained stool and barium, and normal mucosa. (R. 25). A CT
scan showed no findings of acute inflammation, fluid collection or bowel obstruction. (R. 25).
He was presumptively diagnosed with Crohn’s disease based on a small bowel study that was
markedly abnormal with an abnormal nodular mucosal pattern in the terminal ileum. (R. 25).
In July 2011, Plaintiff reported doing fairly well since starting treatment for Crohn’s
disease. (R. 26). In September, 2011, he again presented to the emergency room with
complaints of pain different than that from his Crohn’s disease, he received medication and was,
within a few hours, ambulating with no complaints. (R. 26). In October, 2011, Plaintiff again
presented to the hospital complaining of abdominal pain, but a CT of the abdomen and pelvis
was essentially negative. (R. 26). Notes indicate that the staff saw Plaintiff engage in
histrionics when they approached him, but that he was in no visible distress when resting on a
cart. (R. 26). At a doctor visit in December, 2011, Plaintiff complained of feeling nauseous
but denied vomiting or diarrhea. (R. 26). In January, 2012, he presented again to the
emergency room with abdominal cramping and pain for one hour, but denied vomiting or
diarrhea. (R. 26-27). Upon examination, he had no tenderness and showed no signs of pain or
discomfort. (R. 27). Plaintiff had a colon polyp removed later that month, and, in February,
March and May, 2012, he had additional appointments, but did not complain of diarrhea. (R.
27). In May, 2012, he arrived at the emergency room with a Crohn’s attack, complained of
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nausea and abdominal cramping, but denied vomiting. (R. 27). He was given Percocet and
Prednisone, and was discharged home in stable condition. (R. 27). In July, 2012, Plaintiff’s
primary care physician noted that he repeatedly failed to follow through with gastrointestinal
specialist referrals. (R. 27). He reported nausea, but denied vomiting, no complaint of
diarrhea was documented, and examination findings continued to be fairly normal. (R. 27).
Between November, 2012 and January, 2013, Plaintiff gained weight, and reported one flare-up
in January, 2013, for which he received steroids and pain medication. (R. 27).
In sum, after thorough consideration of the evidence, the ALJ ultimately found that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, [his] statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible” for the reasons he provides in his decision.
(R. 24). As described supra, the ALJ reviewed the complaints in accordance with the
regulations and provided sufficient explanation as to why he found Plaintiff’s allegations to be
not entirely credible. The Court, therefore, finds that the ALJ did not err in evaluating
Plaintiff’s credibility regarding his subjective complaints of pain and frequent use of the
bathroom.
Lastly, Plaintiff argues that he did not receive a full and fair hearing because of bias on
the part of the ALJ. More specifically, Plaintiff contends that the ALJ’s rude and impatient
conduct led to the ALJ placing limitations on Plaintiff’s attorney regarding her questioning and
administrative hearing time. Plaintiff further alleges that this resulted in the ALJ failing to
develop the record fully and fairly because his attorney could not bring out all the facts and
testimony that she wished to present.
The regulations provide that “‘[a]n administrative law judge shall not conduct a hearing if
he or she is prejudiced or partial with respect to any party or has any interest in the matter
pending for decision.’” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (quoting 20 C.F.R.
§§ 404.940, 416.1440 (1994)). Additionally, the plaintiff “must bring any objections to the
attention of the ALJ, and the ALJ shall decide whether to continue the hearing or withdraw.”
Id. Moreover, if the ALJ does not withdraw, the plaintiff “may present objections to the
Appeals Council as reasons why the hearing decision should be revised or a new hearing held
before another ALJ.” Id. Thus, the procedures provide that Plaintiff’s representative here
should have, at the administrative hearing, “alleged that the ALJ was prejudiced and requested
that he disqualify himself.” Id. That did not occur, however, nor apparently did Plaintiff
present his bias argument to the Appeals Council. While Plaintiff could be deemed to have
waived a bias claim by failing to raise it in the manner specified in the regulations, the Court
finds, regardless, that no valid bias claim exists here. See Hummel v. Heckler, 736 F.2d 91, 94
(3d Cir. 1984); see also Ventura, 55 F.3d at 902 (noting that, by raising the bias issue at the
administrative hearing, the plaintiff in that case abided by the procedures set forth in the
regulations regarding disqualification of ALJs).
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In this case, Plaintiff alleges that the ALJ’s conduct included rude and impatient
comments and that he intended to intimidate Plaintiff’s attorney so that she could not bring out
all the facts and testimony that she would have liked to have presented. Upon review of the
transcript, however, the Court notes that, while the ALJ warned Plaintiff’s attorney about asking
duplicative questions and indicated to her that she would have a certain period of time that day to
present her case, the ALJ also permitted Plaintiff’s attorney to present the testimony of two
witnesses in addition to that of Plaintiff and the VE. Also, the ALJ allowed 50 minutes of
testimony, but explained to Plaintiff’s attorney that he would schedule a supplemental hearing if
she wished to present additional witnesses and/or testimony. Moreover, as noted, supra, the
ALJ provided additional time for Plaintiff to submit additional records after the hearing ended,
he let her know that she could have more time to submit records if she needed it, and he said that
he would be glad to help her obtain additional records if anyone was uncooperative in providing
them.
Rather than displaying anything remotely akin to “deep-seated favoritism or antagonism
that would make fair judgment impossible” regarding Plaintiff’s case, the Court finds that the
ALJ’s comments to Plaintiff’s attorney were administrative in nature, related to running the
hearing, and do not indicate bias on his part. Liteky v. United States, 510 U.S. 540, 554 (1994).
As the Third Circuit explains, “[t]he right to an unbiased ALJ is particularly important because
of the active role played by ALJs in social security cases” in which they “have a duty to develop
a full and fair record.” Ventura v. Shalala, 55 F.3d at 902. Thus, in fulfilling that duty, “an
ALJ must secure relevant information regarding a claimant’s entitlement to social security
benefits,” and the Court finds here that the comments addressed to Plaintiff’s attorney simply do
not demonstrate bias on the part of the ALJ. Id.; see also Valenti v. Comm’r of Soc. Sec., 373
Fed. Appx. 255, 258 (3d Cir. 2010) (finding that the plaintiff had not identified any evidence
indicating bias or misconduct by the ALJ, unlike in Ventura, where the ALJ “had engaged in
coercive, intimidating, and irrelevant questioning of the claimant and had improperly interfered
with the claimant’s attempt to introduce evidence establishing disability”). Thus, the Court
finds that Plaintiff has not shown bias on the part of the ALJ, nor that he in any way prevented
Plaintiff’s attorney from fully developing the record in this case.
In sum, the ALJ addressed all relevant evidence in the record, including full
consideration of the opinion evidence, and he thoroughly discussed the basis for his RFC finding.
After careful review of the record, the Court finds that there is substantial evidence to support the
ALJ’s reasons for not giving controlling weight to various opinions in the record, as well as his
decision to give greater weight to other opinion evidence in reaching his final determination.
Additionally, the Court finds that the ALJ did not err in assessing Plaintiff’s credibility, nor did
he err in posing his hypothetical question to the VE. Finally, Plaintiff has not shown the
existence of bias on the part of the ALJ. Accordingly, the Court affirms.
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for Summary
Judgment (Doc. No. 11) is DENIED and Defendant=s Motion for Summary Judgment (Doc.
No. 13) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf: Counsel of record

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