KING v. COLVIN
Filing
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MEMORANDUM JUDGMENT ORDER denying 8 plaintiff's Motion for Summary Judgment and granting 12 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 9/29/16. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELL Y LYNN KING,
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)
Plaintiff,
v.
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)
)
)
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Civil Action No. 15-541
)
)
)
)
)
MEMORANDUM JUDGMENT ORDER
AND NOW, this 29th day of September, 2016, upon consideration of the parties' crossmotions for summary judgment pursuant to plaintiff s request for review of the decision of the
Acting Commissioner of Social Security ("Acting Commissioner") denying her application for
supplemental security income ("SSI") under Title XVI ofthe Social Security Act, IT IS ORDERED
that the Acting Commissioner's motion for summary judgment (Document No. 12) be, and the
same hereby is, granted and plaintiff s motion for summary judgment (Document No.8) 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 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). 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 perform 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 ALJ's findings and conclusions.
Plaintiff filed her SSI application on May 24, 2012, alleging disability due to attention
deficit hyperactivity disorder, borderline bipolar disorder, manic depression and mood disorder.
Plaintiffs application was denied. At plaintiffs request, an ALJ held a hearing on September 17,
2013, at which plaintiff appeared and testified while represented by counsel. On November 14,
2013, the ALJ issued a decision finding that plaintiff is not disabled. The Appeals Council denied
plaintiff's request for review on February 24, 2015, making the ALl's decision the final decision
of the Acting Commissioner. The instant action followed.
Plaintiff, who has a limited education, was 32 years old when she filed her application, and
is classified a youngerindividual under the regulations. 20 C.F.R. §416.963(c). Plaintiffhas past
work experience as a cashier, cook/waitress and secretary, but she has not engaged in substantial
gainful activity at any time since she filed her application.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert at the hearing, the ALJ concluded that plaintiffis not disabled within the meaning
of the Act. The ALJ first found that plaintiff suffers from the severe impairments of affective
disorder and personality disorder; however, those impairments, alone or in combination, do not
meet or equal the criteria of any of the listed impairments set forth in Appendix 1 of20 C.F.R.,
Subpart P, Regulation No.4 ("Appendix I").
The ALJ next found that plaintiff retains the residual functional capacity to perform work
at all exertionallevels, but she has a number ofnon-exertionallimitations. First, plaintiffis limited
to simple, routine and repetitive tasks. Although plaintiff can perform goal oriented work, she is
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precluded from perfonning at a production rate pace. Finally, plaintiff is restricted to no more than
occasional interaction with supervisors, co-workers and the public (collectively, the "RFC
Finding").
The ALJ concluded that plaintiff is unable to perform any past relevant work because it
exceeds her residual functional capacity. However, based upon testimony by a vocational expert,
the ALJ detennined that plaintiff is capable of perfonning other work that exists in significant
numbers in the national economy, such as a kitchen helper, a commercial cleaner and a clothes
presser. 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 impainnent that can be expected to last for a continuous period of
at least twelve months. 42 U.S.C. §1382c(a)(3)(A). The impainnent or impainnents 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. §1382c(a)(3)(B).
The Social Security Regulations specify a five-step sequential evaluation process for
detennining whether a claimant is disabled. The ALJ must assess: (I) whether the claimant
currently is 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 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 that exists in the national economy, in light
ofher age, education, work experience and residual functional capacity.l 20 C.F.R. §416.920(a)(4).
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. §916.945(a)(1). In assessing a claimant's residual
functional capacity, the ALJ is required to consider the claimant's ability to meet the physical, mental,
sensory and other requirements of work. 20 C.F.R. §416.945(a)(4).
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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 consider and weigh certain
medical opinions and evidence; (2) the ALJ did not properly evaluate plaintiff's credibility; (3) the
ALJ failed to fully develop the record; and (4) the ALJ was biased toward plaintiff. After reviewing
the record, we conclude that plaintiff's arguments are without merit.
Plaintiff first argues that the ALJ failed to properly weigh the medical opinion ofher treating
psychiatrist, Dr. Randall Orr. Dr. Orr completed a residual functional capacity questionnaire
indicating that plaintiff's mental capabilities were either seriously limited or that she was unable
to meet competitive standards in a number of work-related areas, and he also predicted that she
would be absent from work more than four days per month. (R. 371-73). The ALJ gave less weight
to Dr. Orr's opinion because it was inconsistent with treatment records from his facility, Family
Behavioral Resources. (R. 24).
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. §416.927(c)(2). Under this standard, the ALJ
properly analyzed and weighed Dr. Orr's opinion of plaintiff's mental capabilities.
As the ALJ found, Dr. Orr's restrictive assessment of plaintiff' s mental functioning is not
supported by other evidence from his facility. Dr. Orr signed off on a psychiatric evaluation of
plaintiff conducted in November 2012, which showed she made good eye contact, she was alert and
oriented, her recent and remote memory were intact, her speech was normal, her judgment and
insight were fair, her thought processes were logical and goal directed, and her concentration and
attention span were fair, although her mood was slightly irritable. (R. 269). These mental status
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examination findings were not consistent with the extreme limitations Dr. Orr later attributed to
plaintiff. In addition, records from Dr. Orr's facility do not otherwise document findings which
support such extreme limitations. (R. 309-315, 320-331). However, despite the fact that the ALJ
did not fully credit Dr. Orr's assessment of plaintiffs mental functional capabilities, the ALJ
accounted for Dr. Orr's opinion that plaintiff was limited in her ability to concentrate and interact
with others by crafting an RFC Finding which limited plaintiff to simple, routine and repetitive
tasks and only occasional interaction with supervisors, co-workers and the public. (R. 21).
Despite the fact that the ALJ properly evaluated and weighed Dr. Orr's opinion, plaintiff
asserts that the ALJ rejected it based on "the opinion ofthe state agency review psychologist Milke,
the plaintiffs daily activities, and ... his interpretation of some of the medical evidence." See
Document No.9 at 10. As just discussed, the ALJ determined Dr. Orr's opinion was entitled to less
weight because it was inconsistent with records from his facility, nor for the reasons cited by
plaintiff. (R. 24). However, to the extent that plaintiff suggests it was improper for the ALJ to
consider Dr. Milke's opinion, plaintiffs activities of daily living and other relevant evidence in
evaluating her claim, plaintiff is incorrect.
As stated, plaintiff asserts that the ALJ erroneously relied on the opinion of Dr. Ray Milke,
a state agency psychologist who reviewed plaintiff s claim, in part because Dr. Milke did not review
plaintiffs complete medical record. Contrary to plaintiffs position, the regulations specifY that
state agency psychological consultants, such as Dr. Milke, "are highly qualified ... psychologists
... who are also experts in Social Security disability evaluation. Therefore, administrative law
judges must consider findings and other opinions of State agency medical and psychological
consultants . . . as opinion evidence, except for the ultimate determination about whether [a
claimant is] disabled." 20 C.F.R. §416.927(e)(2)(i).
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Consistent with the regulations, the Third Circuit has recognized that the opinions of state
agency consultants merit significant consideration. In Chandler v. Commissioner ofSoc. Sec., 667
F.3d 356 (3d Cir. 2011), the Third Circuit determined the ALJ in that case properly relied on the
state agency medical consultant's RFC assessment in support of his decision to deny the claimant's
application for benefits, noting that the ALJ did not merely rubber stamp the medical consultant's
RFC determination, but rather considered the evidence as a whole. Id. at 361-62.
Likewise, here, the AU properly relied in part on Dr. Milke's assessment of plaintiff's
mental capabilities. As in Chandler, the ALJ did not simply rubber stamp Dr. Milke's opinion.
Rather, the ALJ considered Dr. Milke's opinion as consistent with the record, including plaintiff's
activities of daily living and treatment history, but nevertheless found plaintiff moderately limited
in the area of concentration, persistence and pace, contrary to Dr. Milke's opinion that she was only
mildly limited in that area? (R. 21, 24, 59). Accordingly, the ALJ did not err in his treatment of
Dr. Milke's opinion.
The ALJ also did not err in considering plaintiff'S activities of daily living. Although
"[d]isability does not mean that a claimant must vegetate in a dark room excluded from all forms
ofhuman and social activity," Smith v. Califano, 637 F.2d 968,971 (3d Cir. 1981), it is nonetheless
appropriate for the ALJ to consider "the number and type of activities" in which the claimant
engages. Bums v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002). Here, the ALJ observed that
2To the extent plaintiff suggests that the lapse of time between Dr. Milke's assessment in July,
2012, and the subsequent administrative hearing made it inappropriate for the AU to rely on Dr. Milke's
opinion, the Third Circuit rejected that argument in Chandler, stating that "[t]he Social Security regulations
impose no limit on how much time may pass between a report and the AU's decision in reliance on it."
667 F.3d at 361. It is for the AU to determine whether subsequent medical evidence impacts the earlier
findings. Id., citing SSR 96-6p. After considering all ofthe evidence here, the AU noted that Dr. Milke's
assessment was consistent with the evidence, but gave plaintiff the maximum benefit ofthe doubt based
upon the record as a whole by finding a greater limitation than Dr. Milke in the area of concentration,
persistence and pace. (R. 24). The AU then accommodated that limitation by restricting plaintiff to
simple, routine and repetitive tasks and no work that requires performance at a production rate pace.
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plaintiffwas able to take care of her own personal needs, prepare meals, perform household chores
and handle her own finances, activities which the ALJ observed were at odds with plaintiffs
allegation of totally disabling limitations. (R. 23). In evaluating plaintiff s claim, it was proper for
the ALJ to consider plaintiffs daily activities in conjunction with the record as a whole, which he
did here. Indeed, the ALJ's decision makes clear that the outcome in this case did not hinge only
on plaintiffs activities of daily living, or anyone particular factor alone.
The ALJ also properly considered plaintiff s treatment history in evaluating her claim. The
ALJ accurately summarized plaintiffs treatment history, (R. 22-23), but noted it was limited, and
only became more consistent in the six months preceding the hearing. (R. 23). From that, the ALJ
logically drew an inference that plaintiffs symptoms were not as severe as alleged, but the ALJ
nonetheless accounted for all of plaintiffs credibly established limitations in fashioning the RFC
Finding.
Plaintiffs challenge to the ALl's evaluation ofthe medical evidence also over-emphasizes
the ALJ's purported reliance on OAF scores3 to discredit Dr. Orr's opinion. As already discussed,
the ALJ gave less weight to Dr. Orr's opinion because it was inconsistent with other records from
his facility. (R. 24). Although the ALJ noted that plaintiffs OAF scores ranged from 48 to 70, and
found the higher scores were more probative ofplaintiffs baseline functioning, the decision makes
clear that the ALJ did not rely on OAF scores in weighing Dr. Orr's opinion. (R. 24).
Plaintiffs next argument - that the ALJ did not properly evaluate her credibility - also is
without merit.
As required by the Regulations, the ALJ evaluated plaintiffs credibility by
3GAF 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. Although the latest edition
ofthe Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer includes the GAF scale
as a measurement tool, the Social Security Administration permits ALJs to use GAF ratings as opinion
evidence when assessing claims involving mental disorders. See Hughes v. Commissioner of Soc, Sec.,
643 Fed. Appx. 116, 119 n.2 (3d Cir. Jan. 20, 2016) (noting that DSM-5 abandoned the GAF scale).
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considering all ofthe relevant evidence in the record, including plaintiff s own statements about her
symptoms and limitations, the medical evidence of record, the extent of plaintiff s treatment, her
activities of daily living and the opinions of physicians who treated and examined her. See 20
C.F.R. §§416.929(c)(I) and (c)(3); Social Security Ruling 96-7p. The ALl then considered the
extent to which plaintiff s alleged functional1imitations reasonably could be accepted as consistent
with the evidence of record and how those limitations affect her ability to work. 20 C.F.R.
§416.929(c)(4). The ALl concluded that the objective evidence is inconsistent with plaintiffs
allegation oftotal disabling limitations, and thus determined that plaintiff s testimony regarding her
limitations was not entirely credible. (R.23). This court finds that the ALl adequately explained
the basis for his credibility determination, (R. 22-24), and is satisfied that such determination is
supported by substantial evidence. See Schaudeck v. Commissioner of Soc. Sec., 181 F.3d 429,
433 (3d Cir. 1999) (an ALl may reject the claimant's SUbjective testimony ifhe does not find it
credible so long as he explains why he is rejecting the testimony).
Plaintiffs final two arguments contending that the ALl failed to fully develop the record
and alleging that the ALl was biased against her are equally unavailing.
According to plaintiff, the ALl failed to develop the record because he did not issue a
subpoena for additional treatment notes from Dr. Orr's facility, Family Behavioral Resources,
despite her request. Plaintiff s characterization ofthe ALl's handling ofher subpoena request does
not accurately portray what occurred.
In a letter dated August 27,2013, plaintiffs counsel informed the ALl that he twice made
a written request to Family Behavioral Resources to provide treatment notes and medication
management notes, but the facility supposedly refused to send the records to counsel's office. (R.
202). Plaintiffs counsel requested that the ALl issue a subpoena for the records. (R.202).
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At the administrative hearing on September 17, 2013, the ALJ and plaintiffs counsel
discussed the subpoena request. The ALJ directed counsel to "submit on line [his] request that [he]
... made to that provider so we have a record of that." CR. 33). Plaintiffs counsel agreed to
provide the requested information, and the ALJ stated, "[t]hen I'll review that and I'll make a
determination on your request for a subpoena." CR. 33). At the end of the hearing, plaintiffs
counsel committed to providing the ALJ with "copies of the actual letters that went out for Family
Behavioral." CR. 55). However, nothing in the record indicates that plaintiffs counsel provided
the ALJ with the requested information so that he could determine whether it was appropriate to
issue a subpoena.
Despite plaintiff s counsel's apparent failure to supply the requested information, plaintiff
now complains that the ALJ failed to fully develop the record because he did not subpoena
additional treatment notes from Family Behavioral Resources. As an initial matter, we note that
the record contains an intake evaluation, treatment plans and a psychiatric evaluation from Family
Behavioral Resources, indicating that the facility responded to a request for records at some point.
CR. 267-69, 309-15, 320-331). If plaintiff believed additional treatment notes existed, it was
incumbent upon her counsel to make an appropriate subpoena request, which includes identifYing
the documents with sufficient detail to find them, stating the "important facts" they are expected
to prove and explaining "why these facts could not be proven without issuing a subpoena." See 20
C.F.R. §416.1450(d)C2) (specifYing the requirements that must be met for issuance ofa subpoena).
Although plaintiffs counsel's August 27,2013, letter to the ALJ broadly identified treatment notes
and medication management notes from Family Behavioral Resources, the letter does not specifY
the important facts they are expected to prove, other than a broad statement that they "will further
explain [plaintiffs] limitations" related to her conditions, nor does the letter explain why those
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limitations could not be proven without issuing a subpoena. (R. 202). Moreover, plaintiff's counsel
apparently never provided the ALl with the requested information concerning his efforts to obtain
the sought after records, despite his commitment to do so. For all ofthese reasons, we find no merit
to plaintiff's assertion that the ALl failed to fully develop the record.
Finally, plaintiff's contention that the ALl was biased against her is unfounded. Due
process requires that social security claimants be afforded a full and fair hearing. Ventura v.
Shalala, 55 F .3d 900, 902 (3d Cir. 1995). Essential to a fair social security hearing is the right to
an unbiased judge who fulfills his duty to develop a full and fair record. Id. An ALl is presumed
to be unbiased unless there is a specific showing for cause to disqualify. Schweiker v. McClure,
456 U.S. 188, 195 (1982). The burden to establish a disqualifying interest rests with the party
asserting bias. Id. at 196. A party asserting bias must show that the behavior of the ALl was "so
extreme as to display clear inability to render fair judgment." Liteky v. United States, 510 U.S. 540,
551 (1994).
Plaintiff has failed to make such a showing in this case. As dis9ussed, plaintiff's claim that
the ALl failed to fully and fairly develop the record is unfounded. In addition, the transcript of the
administrative hearing makes clear that the ALl was not biased against her. (R. 32-56). The ALT
questioned plaintiff in a polite, professional manner, and was not "unduly adversarial" as plaintiff
now alleges. There is no evidence that the ALl interfered with the introduction of evidence
concerning plaintiff's claim, or made any comments that show he was biased against plaintiff or her
particular case. In sum, there is nothing to indicate that the ALJ displayed an inability to render a
fair judgment in this case.
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In conclusion, after carefully and methodically considering the medical evidence in this
case, 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.
Therefore, the decision of the Acting Commissioner must be affirmed.
sl Gustave Diamond
Gustave Diamond
United States District ludge
cc:
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller PLLC
6000 North Bailey Avenue, Ste. IA
Amherst, NY 14226
Paul Kovac
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
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