PERLE 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 7/25/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TONY ALAN PERLE,
Plaintiff,

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v.

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

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Civil Action No. 15-638

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MEMORANDUM AND ORDER OF COURT
AND NOW, this

~.s~ of July, 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 plaintiff's application for
supplemental security income under Title XVI ofthe Social Security Act ("Act"), IT IS 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 Judge ("ALl") has an obligation to weigh all of
the facts and evidence ofrecord 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 ifit 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 ofthe ALl's
decision here because the record contains substantial evidence to support the ALJ's findings and
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conclusions.

Plaintiff protectively filed his pending app lication for supplemental security income on May
5,2013, alleging a disability onset date of January 15,2005, due to, inter alia, a seizure disorder,
psoriatic arthritis, a heart condition and several mental disorders. Plaintiffs application was denied
initially. At plaintiffs request an ALJ held a hearing on October 22, 2014, at which plaintiff,
represented by counsel, appeared and testified. On October 29, 2014, the ALJ issued a decision
finding that plaintiff is not disabled. On March 17, 2015, the Appeals Council denied review
making the ALl's decision the final decision of the Commissioner.
Plaintiff was 42 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). fIe has at least a high school education
but has no past relevant work experience and has not engaged in any substantial gainful activity
since his alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert, the ALl concluded that plaintiff is not disabled within the meaning of the
Act. The ALl found that although plaintiff has a plethora of physical and mental impairments l
that satisfy the de minimus standard for severity at step 2 of the sequential evaluation process,2
none of those impairments, alone or in combination, meet or equal the criteria of any ofthe
impairments listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.

Specifically, the All found that plaintiff has the following severe impairments: psoriatic
arthritis, post-traumatic osteoarthritis, osteopenia, gastroesophageal reflux disease, psoriasis, bronchitis,
asthma, chronic obstructive pulmonary disease, obstructive sleep apnea, obesity, bipolar disorder, major
depressive disorder, paranoid personality disorder, post-traumatic stress disorder, anxiety disorder, and
history of poly substance use disorders. (R. 14).
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2 At step two, an impairment is "severe" if it "significantly limits your physical or mental ability
to do basic work activities." 20 C.F .R. §416.920(c). The step two inquiry is a de minimus screening device
and, if the evidence presents more than a slight abnormality, the step two requirement of severity is met.
Newell v. Commissioner of Social Security, 347 F 3d 541, 546 (3d Cir. 2003).

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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 plaintiff's physical and mental impairments. 3 Taking
into account these restrictions, a vocational expert identified numerous categories ofjobs which
plaintiff can perform based upon his age, education, work experience and residual functional
capacity, including office helper, mail clerk and stock marker. Relying on the vocational
expert's testimony, the ALJ found that plaintiff 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. § 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).

3 Specifically, the ALJ found that plaintiff has the RFC to perfonn light work with the following
restrictions: "he is limited to standing/walking for approximately 2 hours in an eight-hour workday and
sitting for approximately 6 hours in an eight-hour workday; he cannot climb ladders, ropes, or scaffolds;
he is limited to no more than occasional ramp and stair climbing, stooping, kneeling, crouching, and
crawling; he must avoid concentrated exposure to respiratory irritants such as fumes, odors, dust and gases;
he must avoid all exposure to workplace hazards such as unprotected machinery and unprotected heights;
he must avoid concentrated exposure to extreme cold and extreme heat; he is restricted to occupations with
Specific Vocational Preparation (SVP) codes no greater than 1 or 2; he is limited to simple, routine,
repetitive tasks involving only simple work-related decisions with few, if any, work-place changes; and he
is restricted to occasional interactions with the public and ... supervisors." (R. 18)(footnotes omitted).

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The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.4 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. ld.; see Barnhart v. Thomas, 540 U.S. 20 (2003).
Here, plaintiff raises two challenges to the ALl's findings: (1) the ALl improperly
analyzed and weighed the medical evidence; and, (2) the ALl improperly evaluated plaintiffs
credibility. Upon review, the court is satisfied that the ALl correctly evaluated both the
medical evidence and plaintiff's credibility and that his evaluation of all of the evidence is
supported by substantial evidence.
Plaintiff's first argument is that the ALl improperly analyzed the medical evidence.
Specifically, he argues that the ALl erroneously discounted the opinion of a treating physician,
Dr. Anthony Elisco, who opined that plaintiff is unable to perform even a 4-hour workday. (R.
306). He avers that Dr. Elisco's opinion is supported by that of Dr. Ramesh Kaul, an
examining physician, who indicated in a medical source statement that plaintiff can not work
any hours per day. (R. 1334).
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.

The AU must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §416.920; Newell v. Commissioner of Social
Security, 347 F Jd 541,545 (3d Cir. 2003). In addition, when there is evidence ofa mental impairmentthat
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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§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
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 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 evaluating the medical evidence.
The ALl's decision specifically addresses the opinion from Dr. Elisco that suggested that
plaintiff cannot perform so much as a 4-hour workday and adequately explains why the ALl
"decline [d] to accept his medical source statement as persuasive or compelling." (R. 21-22).
Specifically, the ALl found that Dr. Elisco did not record any objective or clinical evidence to
corroborate the extent of plaintifr s allegations as to the severity of his symptoms, but

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nevertheless concluded that those allegations of symptoms precluded plaintiff from all work
activities. (R. 22).
The court finds no error in the ALJ's rejection of Dr. Elisco's unsupported opinion.
Initially, as already noted, it is for the ALJ 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, as the ALJ pointed out, Dr. Elisco's medical source statement and treating
records contain no objective or clinical evidence supporting his opinion that plaintiff cannot
perform any full-time work activities. And although plaintiff cites Dr. Kaul's medical source
statement as corroborative of Dr. Elisco's opinion, the court notes that Dr. Kaul's statement
equally is devoid of any objective evidence supporting his opinion that plaintiff is precluded
from performing any work.
Contrary to plaintiff s statement that there is "no contradictory medical evidence cited
or found in the rejection of Dr. Elisco's" opinion, the ALJ expressly gave great weight to the
opinion of the state agency physician, Dr. Kar, who found that although plaintiffs symptoms
cause numerous restrictions in his ability to perform work activities, they do not preclude him
from performing any work as found by Dr. Elisco.
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 ALJ is to consider
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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. Here, substantial
evidence in the record supports the ALl's conclusion that the opinion of the state agency
physician is more consistent with the totality of the evidence than that of Dr. Elisco.
Accordingly, the ALl properly gave the state agency reviewer's opinion greater weight.
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 ALl reviewed and discussed all of the pertinent medical evidence and thoroughly
explained his reasons for giving each relevant opinion the weight that he gave it. (R. 15-18;
20-22). The court has reviewed the ALl'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 second argument is that the ALl improperly evaluated plaintiff's subjective
statements as to the severity of his symptoms and the limitations arising therefrom. However,
the court is satisfied that the ALl adhered to the appropriate standards in evaluating plaintiff's
statements regarding his symptoms and limitations and more than adequately explained the
reasons underlying his credibility determination.
As required under the regulations, the ALl in this case properly considered plaintiffs
subjective statements as to the intensity, persistence and limiting effects of his symptoms in
light of the objective medical evidence, as well as all of the other factors relevant to plaintiff's
symptoms as set forth in 20 C.F.R. §416.929(c). See also SSR 96-7p. The ALl thoroughly
explained, over the course of three pages in his decision, why plaintiffs statements concerning
"the intensity, persistence and limiting effects of [his] symptoms are not entirely credible." (R.
19-21).
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Specifically, the ALl reviewed the objective medical evidence as to both plaintiffs
physical and mental impairments and found the objective evidence to be unsupportive of
plaintiff s allegations of disabling limitations. The ALl noted that the clinical findings failed to
correlate the intensity of plaintiff s alleged symptoms. Specifically, the ALl succinctly
summarized the evidence supporting his credibility determination in his decision:
"With reference to his arthritic pain, he does not require an assistive ambulatory
device to walk. He receives no chronic pain management. Throughout the
relevant period, he has not sought any emergent or urgent medical attention
relative to arthritic pain. Moreover, the medical records do not substantiate the
alleged intensity of his mental symptoms. He receives no routine psychiatric,
psychotherapy, or psychological services. Throughout the relevant period under
consideration, there has been no inpatient psychiatric admission or clinical
evidence of suicidal thoughts. He demonstrates no significant memory deficits."

(R.21).
The court is satisfied that the ALl properly considered plaintiff's allegations as to the
severity of his symptoms in light of his activities of daily living and his questionable
motivation to work, and, most importantly, in light of the objective medical evidence, which
revealed the absence of clinical findings supporting plaintiff's allegations of totally debilitating
symptoms. Based on all of the evidence, the ALl reasonably found plaintiffs statements to be
not entirely credible.
It also is important to emphasize that the ALl did not reject plaintiff's testimony

entirely. Rather, to the extent plaintiff's statements as to the limitations arising from his
impairments are supported by the medical and other relevant evidence, the ALl's residual
functional capacity finding accommodated those limitations. Only to the extent that plaintiff's
allegations are not so supported did the ALl find them to be not credible.

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The record demonstrates that the ALJ adhered to the appropriate standards in evaluating
plaintiffs credibility and it is not this court's function to re-weigh the evidence and arrive at its
own credibility determination. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003)(ALl's
conclusions as to the credibility of a claimant's subjective complaints generally are entitled to
great deference and should not be discarded lightly given the ALl's opportunity to observe the
claimant's demeanor). Rather, this court must only determine whether the ALJ's credibility
determination is supported by substantial evidence and is satisfied here that it is.
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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GUStaVeDiaI11()d
United States District Judge

cc:

Norman 1. Barilla, Esq.
Barilla Shaw
111 West Sheridan Avenue
New Castle, PA 16105
Paul Kovac

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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