DAVIS v. COLVIN

Filing 13

MEMORANDUM AND ORDER OF COURT denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 9/6/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DIANNA DAVIS,
Plaintiff,
v.

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

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Civil Action No. 15-427

MEMORANDUM AND ORDER OF COURT
AND NOW, this

t ~ of September, 2016, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiff s request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs application for
supplemental security income under Title XVI ofthe Social Security Act ("Act"), !TIS ORDERED
that the 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 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 supplemental security income on
June 5, 2013, alleging a disability onset date of October 26, 2010, due to bipolar disorder, high
blood pressure, asthma, a sleeping disorder and thyroid issues. Plaintiffs application was denied
initially. At plaintiffs request an ALJ held a hearing on August 14, 2014, at which plaintitI,
represented by counsel, appeared and testified. On September 12, 2014, the ALJ issued a decision
finding that plaintiff is not disabled. On January 26, 2015, the Appeals Council denied review
making the ALl's decision the final decision ofthe Commissioner.
Plaintiff was 43 years old at the time of the ALJ's decision and is classified as a younger
person under the regulations. 20 C.F.R. §416.963(c). She has at least a high school education
and has past relevant work experience as a deli worker and truck driver, but she has not
engaged in any substantial gainful activity since her alleged onset date.
After reviewing plaintiff's 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 bipolar disorder,
panic disorder without agoraphobia, arthritis, hypertension, hypothyroidism, asthma and
bilateral sensorineural hearing loss, none of those impairments, alone or in combination, 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 ("RFC") to
engage in work at the light exertionallevel but with numerous restrictions necessary to
accommodate the limitations arising from her physical and mental impairments.! Taking into

1 Specifically, the ALJ found that plaintiff has the following restrictions: "she is able to lift up to
20 pounds occasionally and 10 pounds frequently, except that she must be permitted to alternate sitting and
standing every 2 hours. Further, she must avoid all exposure to chemicals and poorly ventilated areas. She
can understand, remember and carry out simple instructions and make judgments on simple work-related
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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 marker, garment bagger and sorter. Relying on the vocational expert's
testimony, the ALl found that plaintiff is capable of making an adjustment to numerous jobs
existing in significant numbers in the national economy. Accordingly, the ALl 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. §1382c(a)(3)(A). The impairment or impairments
must be so severe that the claimant "is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy ...... 42 U.S.C. §1382c(a)(3)(B).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.2 20 C.F.R.
§416.920. If the claimant is found disabled or not disabled at any step, the claim need not be
reviewed further. Id.; see Barnhart v. Thomas, 540 U.S. 20 (2003).

decisions. Finally, the claimant must work isolated from the public, while having only occasional
supervision and contact with coworkers." (R. 17).
:2 The AU must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impairment; (3) if so, whether her 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
impairment prevents her from performing her past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of her age, education, work
experience, and residual functional capacity. 20 C.F.R. §416.920; Newell v. Commissioner of Social
Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence ofa 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. §416.920a.

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Here, plaintiff's lone argument is that the ALl improperly analyzed the medical
evidence regarding her mental impairments. 3 Specifically, she argues that the ALl erroneously
discounted a period of time when plaintiff s anxiety reportedly worsened as a mere "temporary
exacerbation of anxiety" rather than, as plaintiff construes it, as a "recurrence of disability
following a temporary period of stability." Upon review, the court is satisfied that the ALl
correctly evaluated the medical evidence and that her evaluation is supported by substantial
evidence.
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.
§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.
§416.927(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. §416.927(d); SSR 96-5p. "The law is clear ... that

Plaintiff does not challenge the AL.l's decision or findings regarding her physical impairments
and resulting limitations.
3

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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, H[t]he ALl-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. §§416.927(d)(2) and (3); 416.946(c).
Here, the ALl adhered to the foregoing standards in analyzing the relevant medical
evidence relating to plaintiff's mental impairments. The decision specifically addressed all of
the opinions and evidence from all of the relevant medical sources and the ALl thoroughly
explained her reasons for the weight she gave to each. (R. 19-21).
The ALl acknowledged and discussed plaintiff's lengthy treatment history for a mood
disorder, first at Turtle Creek Valley Mental Health/Mental Retardation (MH/MR), then briefly
at Southwest Behavioral Care, then finally at Kreinbrook Psychological Services. The ALl
recognized that during her long-term treatment at Turtle Creek MHIMR, plaintiff's condition
was "stable and well." (R. 19). During this time period, her mental status examinations were
unremarkable with consistent "GAF" scores of 65, indicative of only mild symptoms.4 (R. 19;
464-521). Plaintiffleft Turtle Creek MHIMR when she moved to care for her mother. (R.
520). Upon her discharge on luly 29, 2013, plaintiff was described as "much improved" with
"good insight into her illness and her need for medication" and was assigned a GAF score of
65. (R. 520-21).

The Global Assessment of Functioning ("GAF") score considered psychological, social and
occupational functioning on a hypothetical continuum of mental health. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (DSM -IV) (4th ed. 1994). Under the
DSM-IV, a GAF rating of 61-70 indicated "some mild symptoms" or "some difficulty in social,
occupational, or school functioning ... but generally functioning pretty well." The latest edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer includes the GAF scale. See
Hughes v. Colvin, 2016 WL 231676 at *2 n.2 (3d Cir., Jan. 20, 2016) (noting that the DSM-5 has
abandoned the GAF scale as a measurement tool).
4

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The ALl also discussed plaintiff s treatment at Southwestern Behavioral Care
beginning August 6,2013, and into September of2013, during which time plaintiff was stable
on her medications. Although she was assigned a GAF of only 50 on initial intake, indicative
of "serious" symptoms or difficulty in social or occupational functioning, the ALl assigned that
score little weight, as it was contradicted by her discharge score of 65 from Turtle Creek
MH/MR only a week before and was inconsistent with the reports from Southwest Behavioral

Care that her condition had improved with a good prognosis. (R. 19-20).
Finally, the ALl specifically addressed ~he records from Kreinbrook Psychological
Services, where plaintiff began treating on November 25,2013, including a one-page report co­
signed by Dr. Patty 10 Murray and Dr. Dennis W. Kreinbrook on May 29, 2014. (R 20-21).
The "Murray/Kreinbrook report" assigned a GAF score of 50 and further suggested that
plaintiffs "disability" causes her to have moods swings "including severe depressive episodes
and extreme manic episodes contributing to impairments in her social and occupational
functioning." (R. 580).
The court finds no error in the ALl's rejection of the Murray/Kreinbrook report.
Initially, as noted in her decision, it is for the ALl alone to make the ultimate determination of
disability, and the opinion of a treating physician that a claimant is disabled is not entitled to
any special significance. Chandler, 667 F.3d at 361; 20 C.F.R. §416.927(d).
Moreover, the actual treatment records from Kreinbrook Psychological Services all are
signed by Dr. Leyla Somen, and the record contains no treatment notes from either Dr. Murray
or Dr. Kreinbrook. As correctly observed by the ALl, the treatment records from Dr. Somen
do not suggest the extreme mood swings, depressive episodes or manic episodes alleged in the
one-page Murray/Kreinbrook report. Rather, Dr. Somen's notes consistently, with only one

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exception, describe,d plaintiff's mood as "neutral" and her mental status examinations
consistently were characterized as unremarkable and normal throughout 2014. (R. 581-595).
Accordingly, because the Murray/Kreinbrook report was contradicted by the treatment
records from Dr. Somen and the functional assessments from Turtle Creek MHIMR, the ALJ
properly gave more weight to the records from those sources than the conclusory and
unsupported MurraylKreinbrook report. (R. 21). In addition, the state agency psychologist, Dr.
Timothy Ostrich, found that plaintiff had no worse than moderate limitations in any area of
mental health functioning, findings which also were consistent with the cumulative record. s
(ld.)

Plaintiff takes issue with the ALl's analysis of the foregoing evidence, in particular the
ALJ's observation that the overall record indicates that plaintiff was doing "very well" before
moving in with and caring for her mother from July 2013 to April 2014, resulting in "a
temporary exacerbation of anxiety due to mother/daughter issues and stress," as well as with
the ALJ's prediction that moving into a new place "should help [plaintiff's] overall mental
state." (R. 21). Plaintiff's interpretation of the evidence is that the "temporary exacerbation of
anxiety" noted by the ALJ in actuality was a "recurrence of disability following a temporary
period of stability" while she was treating at Turtle Creek MHIMR. Accordingly, plaintiff
contends that the ALl's decision "stands for an unprecedented legal principle that if a claimant

5 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. §416.927(e)(2)(i). Accordingly, while not bound by findings made by
reviewing physicians, the AU is to consider those findings as opinion evidence, and is to evaluate them
under the same standards as all other medical opinion evidence. 20 C.F.R. §416.927( e )(2)(ii); SSR 96-6p.

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partially recovers from a psychiatric disability, they can never have a disabling recurrence of
that disability ... after a period of stability."
There are several flaws in plaintiffs argument. First, the ALJ did not find, and the
evidence does not show, that plaintiffs mental impairment ever was disabling within the
meaning of the Act. In support of her proposition, plaintiff refers solely to records from Turtle
Creek MH/MR which assign plaintiff a number of GAF scores in the range of 45-48, indicative
of "serious" symptoms or difficulties in social or occupational functioning. 6 However, with
one exception, a score of 48 in February of 20 11, all of these scores were assigned prior to
plaintiffs alleged onset date of October 26, 2010. As the ALJ explained in detail in her
decision, subsequent treatment notes from Turtle Creek MH/MR during the relevant time
period establish that plaintiff was stable and doing well with unremarkable and normal

objective findings during the course of her treatment there.

CR. 20).

Second, the evidence does not show that the period from July of2013 through April of
2014, after plaintiffs "temporary period of stability," marked a "recurrence" of disability. To
the contrary, as explained by the ALJ in depth, the evidence even during this time period, as
reflected in Dr. Somen' s treatment records, as well as Dr. Ostrich's assessment, indicated that

6 The court notes that GAF scores in the range of45-48 are notper se "disabling." It long has been
recognized that the use ofthe GAF scale is not endorsed by the Social Security Administration because its
scores do not have any direct correlation to the disability requirements and standards of the Act, see 65
Fed.Reg. 50746, 50764-65 (2000), and courts have emphasized that a claimant's GAF score is not
determinative of disability. 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 of the Social Security mental
disorder listings, and determining that a low GAF score is not conclusive evidence ofa 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). Accordingly, absent
evidence that a GAF score was meant to indicate a limitation in the ability to do work, the score alone is
insufficient to establish disability. See Clayton v. Colvin, 2014 WL 5439796 (W.D.Pa., Oct. 24, 2014)(1.
Fischer).
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with regular treatment plaintiffs mental health is stable and results in no more than moderate
limitations in any area of mental health functioning. (R. 21).
It is axiomatic in social security cases that the ALl must give some indication of the
evidence that she 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 her reasons for giving each relevant opinion the weight that she gave it. Plaintiffs
plea that the evidence "deserves a more thorough and thoughtful analysis" essentially asks the
court to re-weigh the evidence and arrive at a different conclusion than the ALl. However, this
court's task is not to conduct a de novo review nor to re-weigh the evidence; rather, review is
limited to determining whether the ALl's decision is supported by substantial evidence.
Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). The court is
satisfied that the ALl's evaluation of the medical evidence in this case is so supported.
After carefully and methodically considering all of the medical evidence of record and
plaintiff s testimony, the ALl determined that plaintiff is not disabled within the meaning of
the Act. The ALl's findings and conclusions are supported by substantial evidence and are not
otherwise erroneous. Accordingly, the decision of the Commissioner must be affirmed.

Gustave Diamond
United States District Judge
cc:

Brian Patrick Bronson, Esq.
QuatriniRafferty
550 East Pittsburgh Street
Greensburg, PA 15601
Colin Callahan

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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