PARKER v. COLVIN

Filing 16

SOCIAL SECURITY ORDER denying 11 Plaintiff's Motion for Summary Judgment; granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 10/6/16. (cha)

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

PERSTEPHANIE L. PARKER,

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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-642

AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Perstephanie L. Parker (“Parker”) appeals an ALJ’s denial of her claim
for supplemental security income (“SSI”). Parker alleges a disability beginning
December 21, 2011. (R. 36-37) Parker contends that she is disabled due to a number of
impairments including bipolar disorder, schizophrenia and depression. Following a
hearing and consultation with a vocational expert, the ALJ denied her claim, concluding
that she retained the residual functional capacity (“RFC”) to perform a full range of work
at all exertional levels but with some nonexertional restrictions. (R. 16-29) Parker
appealed. Pending are Cross Motions for Summary Judgment. See ECF Docket Nos.
[11] and [13]. After careful consideration and for the reasons set forth below, this case
is affirmed.
Legal Analysis

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1. Standard of Review
The standard of review in social security cases is whether substantial evidence
exists in the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d
37, 39 (3d Cir. 1989). Substantial evidence has been defined as Amore than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate.@ Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is
“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.
1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of
evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,
a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence – particularly certain types of evidence (e.g., that
offered by treating physicians).” Id. The Commissioner=s findings of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. '405(g); Dobrowolsky v. Califano, 606
F.2d 403, 406 (3d Cir. 1979). A district court cannot conduct a de novo review of the
Commissioner=s decision or re-weigh the evidence of record. Palmer v. Apfel, 995
F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact are supported by
substantial evidence, a court is bound by those findings, even if the court would have
decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. '706.
2. The “Waxing and Waning” of Psychological Symptoms

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Parker contends that the ALJ placed “undue emphasis” on the examinations
during which her psychiatric impairments were milder and “ignored” the fact that there
were times during which she did not function at a high level. See ECF Docket No. [12],
p. 12-16. Parker cites to several instances that evidence her extreme complaints of
poor sleep, poor appetite, irritability, stress, hallucinations, suicidal thoughts and a
hospitalization. See ECF Docket No. [12], p. 14-15 Yet she simply does what she has
accused the ALJ of – isolating specific instances in the record to support her argument.
After careful consideration, I reject Parker’s contentions.
Certainly an ALJ must consider the claimant’s longitudinal history. “Such history
is important in the mental health context, as symptoms wax and wane over time.” Epps
v. Colvin, Civ. No. 13-938, 2014 WL 807957 (W.D. Pa. Feb. 28, 2014), citing, Jaleh
Kaveh Ahangari v. Astrue, Civ. No. 7-1869, 2008 U.S.Dist. LEXIS 68018 at *812-13 (D.
Colo. Sept. 8, 2008). A claimant who suffers from disabling impairments can show
temporary improvement in conditions. See Barker v. Colvin, Civ. No. 14-15E, 2014 WL
4384347 at *4 (W.D. Pa. Sept. 3, 2014) (recognizing that there can be a “waxing and
waning of mental illness symptoms” and stating that “[j]ust because someone improves
at times does not necessarily mean that there are inconsistencies or that Plaintiff’s work
related abilities / limitations improved or are adequate. It very well could mean that in
her improved state, Plaintiff still had serious limitations preventing Plaintiff from working
on a sustained basis.”) Indeed “’[m]any mental illnesses are characterized by ‘good
days and bad days,’ … or recurrent cycles of waxing and waning symptoms.’” Ehredt v.
Comm’r. of Soc. Sec., Civ. No. 14-23, 2014 WL 438614 at *2, n. 2 (W.D. Pa. Sept. 4,
2014), quoting, Phillips v. Astrue, 413 Fed. Appx. 878, 886 (7th Cir. 2010). “This may

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mitigate the value of isolated treatment notes, or a ‘snapshot,’ regarding a claimant’s
mental condition.” Ehredt, 2014 WL 438624 at * 2, n. 2, citing, Real v. Astrue, 2012 U.S.
Dist. LEXIS 180265, 2012 WL 6642390 (N.D. Ill. Dec. 18, 2012).
However, a review of the record reveals that the ALJ did consider Parker’s
longitudinal history. First, the ALJ does acknowledge that the records contain evidence
of Parker reporting “voices in her head,” stress, hospitalization, suicidal ideation, and
sleep and appetite disturbances. (R. 22-25) Moreover, she discusses Parker’s reports of
increased symptomology, her auditory hallucinations, her paranoia and the difficulty she
experienced in getting along with others. (R. 24-28) Consequently, the ALJ did not
“ignore” Parker’s complaints or evidence of the same.
Second, the record contains substantial evidence supporting the ALJ’s
conclusion that Parker’s longitudinal history indicates that she is able to perform a full
range of work with some limitations. For instance, as the ALJ noted, Parker’s mental
examinations repeatedly revealed her to be polite, with “calm and cooperative
behavior,” to have logical thought processes, to have intact concentration and memory,
to have good to fair insight and to be goal oriented. (R. 25) (R. 348-353, 354, 356, 358,
359) Further, as the ALJ observed, Parker was repeatedly noted to be alert, oriented
and cooperative during examinations. (R. 22, 368, 374, 382, 387, 405, 410, 417, 426)
Moreover, the state agency psychological assessments of both Dr. Rings and Dr. Banks
support the ALJ’s view of Parker’s longitudinal history. Rings opined that Parker “could
make simple decisions, carry out very short and simple instructions, sustain a work
routine without special supervision, ask simple questions, accept instruction and
function in production oriented jobs requiring little independent decision making.” (R. 27,

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citing Exhibit 2A). Similarly, Banks explained that Parker could “understand, remember
and carry out simple, 1 and 2 step instructions, perform routine and repetitive work in a
stable environment, work within a schedule without special supervision, adapt to routine
changes and function in production oriented jobs requiring little independent decision
making.” (R. 27, citing Exhibit 4A). Consequently, I find that the ALJ did not err in
assessing the impact of Parker’s psychiatric impairments on her ability to work.
3. The ALJ’s Reliance Upon the State Agency Physician Opinions
Parker also urges that the ALJ erred in relying upon the opinions offered by
Valerie Rings and Sandra Banks referenced above, contending that such opinions are
not consistent with the evidence of record. More specifically, Parker contends that the
state agency opinions are deficient because they were authored before Parker was fired
from multiple jobs and before multiple exacerbations of her symptoms. See ECF Docket
No. [12], p. 17-18. Again, Parker’s contention is unconvincing. The mere fact that those
opinions predated some of the evidence in this case does not render the ALJ’s reliance
upon those opinions suspect. In Chandler v. Comm’r. of Soc. Sec., 667 F.3d 356, 361
(3d Cir. 2011), the Third Circuit Court of Appeals recognized that “because state agency
review precedes ALJ review, there is always some time lapse between the consultant’s
report and the ALJ hearing and decision.” Indeed, “[t]he Social Security regulations
impose no limit on how much time may pass between a report and the ALJ’s decision in
reliance on it. Only where ‘additional medical evidence is received that in the opinion of
the [ALJ] … may change the State agency medical … consultant’s finding that the
impairment(s) is not equivalent in severity to any impairment in the Listing,’ is an update
to the report required.” Chandler, 667 F.3d at 361, quoting, SSR 96-6p (July 2, 1996)

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(emphasis added). Here, as in Chandler, the ALJ did not find that additional evidence
received after the state agency medical consultants issued their opinions would change
those opinions. Further, as set forth above, the opinions rendered by Banks and Rings
are consistent with other substantial evidence of record.1
Parker also urges that the ALJ failed to account for all of the limitations that Dr.
Banks and Dr. Rings indicated. I disagree. According to Parker, the state agency
psychiatrists found that she was moderately limited in the “ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances, as well as the ability to complete a normal workday and workweek without
interruptions and to perform at a consistent pace without an unreasonable number and
length of rest periods.” See ECF Docket No. [12], p. 18 Specifically, Dr. Rings found
Parker to be “moderately limited” in these respects, and Dr. Banks found Parker to be
“moderately limited” only insofar as her ability to complete a “normal workday and
workweek without interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods.” (R. 83).2
According to Parker, “[t]he ALJ does not discuss these limitations in her decision in
evaluating the state agency psychiatrist’s report.” See ECF Docket No. [12], p. 18. First,
the ALJ does, in fact, discuss the fact that each physician found Parker to be

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Parker also urges that this Court should adopt the doctrine that the ALJ should at least solicit an opinion from a
claimant’s treating physician. See ECF Docket No. [12], p. 18. Parker cites to Toland v. Colvin, Civ. No. 12-1663,
2013 6175817 (W.D. Pa. Nov. 25, 2013) and Tankisi v. Comm’r. of Soc. Security, 521 Fed. Appx. 29, 33 (2d Cir.
2013). I note that in those cases, the courts found that although 20 C.F.R. § 416.913(b)(6) “’seems to impose on the
ALJ a duty to solicit’” medical opinions from a claimant’s treating sources, the courts nevertheless held that
“’remand is not always required when an ALJ fails in his duty to request opinions, particularly where, as here, the
record contains sufficient evidence from which an ALJ can assess the petitioner’s residual functional capacity.’”
Toland, 2013 WL 6175817 at * 10, quoting, Tankisi, 521 Fed. Appx. 29, 33 (2d Cir. 2013). Here, the record
contained sufficient evidence from which the ALJ was able to assess Parker’s residual functional capacity.
2
Dr. Banks found Parker was “not significantly limited” with respect to the “ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances.” (R. 83)

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moderately limited in certain of these respects. (R. 27) More significantly, however, the
ALJ detailed the physicians’ narrative statements which gave explanation to those
findings. (R. 27) On each assessment the physician is asked to “explain in narrative
form the sustained concentration and persistence limitations indicated above.” (R. 73,
83). Dr. Rings explained, “[c]laimant can make simple decisions. The claimant is able to
carry out very short and simple instructions. The claimant would not require special
supervision in order to sustain a work routine.” (R. 73) Similarly, Dr. Banks explained,
“[t]he claimant is able to carry out very short and simple instructions. She is capable of
working within a work schedule. The claimant would not require special supervision in
order to sustain a work routine.” (R. 83) The narrative explanations encapsulate and
translate the limitations the physicians found Parker to be under and the ALJ was
entitled to rely upon the narrative explanations. See Smith v. Comm’r. of Soc. Sec., 631
F.3d 632, 636-637 (3d Cir. 2010); Baker v. Comm’r. of Soc. Sec., Civ. No. 12-212, 2014
WL 1317300 at * n.1 (W.D. Pa. March 31, 2014).
4. Parker’s Illiteracy
Finally, Parker contends that the ALJ failed to properly evaluate her illiteracy.
According to Parker, the testimony calls into question whether she is a functional
illiterate and the record requires further development on this issue. Parker seeks a
remand, urging that the ALJ concluded that she had a “limited education,” but provided
no meaningful analysis as to how she arrived at this conclusion.3

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The term “limited education” means “ ability in reasoning, arithmetic, and language skills, but not enough to allow
a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or
skilled jobs. We generally consider that a 7th through the 11th grade level of formal education is a limited education.”
20 C.F.R.416.964.

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I disagree. The record contains substantial evidence supporting the ALJ’s
findings regarding Parker’s alleged illiteracy. During the hearing the ALJ engaged in a
lengthy conversation with Parker and established that Parker completed the 8th grade,
that she can read and write “a little bit,” and that she had past job experience as a
cashier at McDonald’s and Taco Bell. (R. 40-42) The regulations provide that “if there is
no other evidence to contradict it, we will use your numerical grade level to determine
your educational abilities.” 20 C.F.R. § 416.964(b) Parker has not established that the
evidence of record is inconsistent with the ALJ’s finding that she has an eighth grade
education. Further, the regulations allow for the term “education” to include how well a
claimant is able to communicate in English, “since this ability is often acquired or
improved by education.” Id. Here, the ALJ had the opportunity to evaluate Parker’s
ability to communicate in English. Additionally, “past work experience” is relevant to the
understanding of education. Id., at § 416.964(a) Here, the ALJ noted that Parker had
past work experience as a cashier. Finally, I find that the ALJ accounted for any reading
and writing impairments Parker has in the residual functional capacity assessment
(“RFC”) by limiting the type of unskilled, entry level work that she can perform. (R. 24)

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

PERSTEPHANIE PARKER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-642

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 6th day of October, 2016, it is hereby ORDERED that the decision
of the ALJ is affirmed and that Plaintiff’s Motion for Summary Judgment (Docket No. 11)
is denied and Defendant’s Motion for Summary Judgment (Docket No. 13) is granted.

BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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