BAIN v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

MEMORANDUM AND ORDER OF COURT denying 7 Plaintiff's Motion for Summary Judgment and granting 9 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

MALCOLM BAIN,
Plaintiff,
v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 15-680

MEMORANDUM AND ORDER OF COURT
AND NOW, this

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day of September, 2016, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiffs request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs application for
disability insurance benefits under Title II ofthe Social Security Act ("Act"), IT IS ORDERED that
the Commissioner's motion for summary judgment (Document No.9) be, and the same hereby is,
granted and plaintiffs motion for summary judgment (Document No.7) 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 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 of the ALl's
decision here because the record contains substantial evidence to support the ALl's findings and
'Q.AO 72
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conclusions.

Plaintiff protectively filed his pending application for disability insurance benefits April 25,
2012, alleging a disability onset date of December 6, 2010, I due to, inter alia, nerve damage and
lingering pain in his back, neck, shoulder and arms resulting from second degree bums,2 as well
as numbness in his arms and hands. Plaintiffs application was denied initially. At plaintiffs
request an ALJ held a hearing on January 14, 2014, at which plaintiff, represented by counsel,
appeared and testified. On January 17, 2014, the ALJ issued a decision finding that plaintiff is not
disabled. On March 24,2015, the Appeals Council denied review making the ALl's decision the
final decision of the Commissioner.
Plaintiff was 57 years old at the time of the ALJ's decision and is classified as a person
of advanced age under the regulations. 20 C.F .R. §404.1563(c). He has at least a high school
education and has past relevant work experience as a mail room clerk, cleaner, banquet set-up
person and construction worker, but he 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 ALJ concluded that plaintiff is not disabled within the meaning of the
Act. The ALJ found that although plaintiff has the severe impairments of status post -bum
injury, status post-bilateral carpal tunnel surgeries and bilateral shoulder strain, 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.

1 Because plaintiff had acquired sufficient coverage to remain insured only through December 31,
2013, the relevant time period for purposes of plaintiff s Title II application is the alleged onset date of
December 6,2010, through the date last insured of December 31,2013, and plaintiff bears the burden of
showing he became disabled during that time period.
2 Plaintiff was injured in a work accident on December 7,2010, when hot water was spilled on
him, resulting in first and second degree bums of his entire back, neck, right ear, and right shoulder with
some blistering and a small drying area of the left wrist. (R. 261).
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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 his impairments. 3 Comparing plaintiffs residual
functional capacity with the physical and mental demands of his past relevant work, and in
reliance on the vocational expert's testimony, the ALJ found that plaintiff is capable of
performing his past relevant work of mail room clerk as he actually performed it and as it
generally is performed in the national economy. (R.21). Accordingly, the ALJ concluded at
step 4 of the sequential evaluation process that plaintiff is not disabled under the Act.
The Act defines Itdisability" 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. §423(d)(1)(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. §423(d)(2)(A).
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.

3 Specifically, the ALJ found that plaintiff has the RFC to perform light work with the following
restrictions: "[plaintiff] can only occasionally kneel, crawl, and climb ladders, ropes, and scaffolds. He
cannot perform work overhead that would require overhead reaching with either arm. He is limited to jobs
that require only occasional feeling (as defined in the DOT), frequent fingering (as defined in DOT). The
claimant is unable to work in environments with exposure to temperature extremes." (R. 16-17).

The ALJ must determine: (I) 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. §404.1520; Newell v. Commissioner of Social
347 F.3d 541, 545 (3d Cir. 2003) .

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§404.1520. 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).
Here, plaintiff raises three challenges to the ALl's findings: (1) the ALl improperly
analyzed and weighed the medical evidence; (2) the ALl improperly evaluated plaintiffs
credibility; and, (3) the ALl failed to incorporate additional limitations into the residual
functional capacity finding. Upon review, the court is satisfied that the ALl correctly evaluated
both the medical evidence and plaintiffs credibility and that all of his findings, including the
residual functional capacity finding, are 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 evidence from his
treating physician, Dr. Elie Francis, who opined in May and in August of 2011 that plaintiff is
unable to work because of uncontrolled pain, (R. 247-50), and who, in a lanuary 2014
assessment, indicated that plaintiff can only stand and/or walk 1 hour and sit 2 hours in an 8­
hour workday, and that he only occasionally can lift 0 to 5 pounds. (R.414). Plaintiff further
contends that the ALl erroneously gave more weight to the opinion of the state agency
physician, Dr. Paul Fox, than to the opinions of Dr. Francis. Plaintiffs arguments are without
merit.
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.
§404.1527(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
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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.
§404.1527(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. §404.lS27(d); SSR 96-5p. «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). Rather, "[t]he ALJ-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. §§404.1S27(d)(2) and (3); 404.1S46(c).
Here, the ALJ adhered to the foregoing standards in evaluating the medical evidence.
The ALl's decision specifically addressed the opinion evidence from Dr. Francis and
adequately explained why the ALJ was according her opinions "little weight." (R.20). The
ALJ noted that the opinion that plaintiff is disabled due to pain was conclusory, that Dr. Francis
failed to provide any explanation as to the medical basis for it, and that it was inconsistent with
her treatment records and the other medical opinions of record. (ld.) As to the January 2014
physical capacity evaluation, the ALJ accorded that assessment little weight because it was
"wholly unsupported by the objective diagnostic studies, findings and [Dr. Francis's] treatment
notes" and because it was inconsistent with plaintiffs reported activities of daily living. @.)

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The court finds no error in the ALl's rejection of Dr. Francis's unsupported opinions.
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. §404.l527(d).
Moreover, as the ALJ pointed out, the objective medical evidence, including Dr.
Francis's own treatment records, does not support her opinion that plaintiff is unable to work at
all, nor her assessment that plaintiff is extremely limited in his ability to stand, walk, sit and
lift. In fact, the treatment records from Dr. Malcolm Berger, plaintifrs neurologist, and Dr.
Corey A. Pacek, who performed plaintifrs successful carpal tunnel surgery, contradict Dr.
Francis's dire assessment. Dr. Berger performed a number of objective tests in May of2012
and in November of2012, all of which revealed that plaintifrs shoulder shrug was strong and
symmetric, and that his gait, muscle strength, tone and mass all were normal, as were his fine
motor movements, reflexes and reactions to sensory stimulation in all four extremities. (R.
232). Significantly, contrary to Dr. Francis's assessment that plaintiff could only lift 5 pounds,
Dr. Berger recommended that plaintiff avoid lifting more than 25 pounds. (R. 304). The ALJ
gave great weight to Dr. Berger's assessment in crafting plaintiff's residual functional capacity
as it was well-supported by the objective evidence. (R. 20). For the same reason, he gave great
weight to Dr. Pacek's opinion that plaintiff could return to full work duty after his successful
carpal tunnel release surgeries. (Id.)
Contrary to plaintifrs contention, the court also finds no error in the ALl's decision to
give more credence to the assessment of Dr. Fox, the state agency physician, than to that of Dr.
Francis. Dr. Fox indicated that plaintiff can lift and carry up to 20 pounds occasionally and 10
pounds frequently, and that plaintiff can stand or walk up to 6 hours and sit 6 hours in an 8­
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hour workday. (R. 19-20). The ALl gave Dr. Fox's opinion "great weight" because "it was
consistent with [plaintiffs] treatment records and the objective diagnostic evidence." (R. 20).

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. §404.1527(e)(2)(i).
Accordingly, while not bound by findings made by reviewing physicians, the ALl 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. §404.1527(e)(2)(ii); SSR 96-6p. Here, substantial
evidence in the record supports the ALl's conclusion that the opinion of Dr. Fox is more
consistent with the totality of the evidence, including that from Dr. Berger and Dr. Pacek, than
that of Dr. Francis. Accordingly, the ALl properly gave the state agency physician's opinion
greater weight.
It is axiomatic in social security cases that the ALl must give some indication of the

evidence that he 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. 18-20).
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.
Plaintiffs second argument is that the ALl improperly evaluated plaintiffs subjective
statements as to the severity of his pain and the limitations arising therefrom. However, the
court is satisfied that the ALl adhered to the appropriate standards in evaluating plaintiffs
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statements regarding his pain and limitations and more than adequately explained the reasons
underlying his credibility determination.
As required under the regulations, the ALJ 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 plaintiffs
symptoms as set forth in 20 C.F.R. §404.1529( c). See also SSR 96-7p. The ALJ thoroughly
explained in the decision why plaintiff's statements concerning "the intensity, persistence and
limiting effects of [his] symptoms are not entirely credible." (R. 17-21). Specifically, the ALJ
reviewed the objective medical evidence and determined that while the medical records support
plaintiffs complaints of some residual pain from his bum injury, the treatment records and
plaintiff s "essentially routine and conservative treatment" for his lingering pain do not support
his allegations of debilitating pain. (R. 19).
The ALJ further determined that plaintiff's reported activities of daily living likewise
were inconsistent with his complaints of disabling pain. The ALJ noted that plaintiff testified
that he is able to drive a car, assist with some household chores, likes to build small models,
uses the computer and reads the news. He also testified that he vacationed in Montana and that
he likes to go fishing and camping at his cabin.s (R. 17; 20).

5 Plaintiff avers in his briefing to this court that he has not gone fishing since prior to his bum
injury in 20 I 0 and that he does not "go camping," but rather only sits on the porch at his camp. He also
states that he has not built any models since his bum injury. Plaintiff's contentions are belied by his own
testimony, under oath, at the hearing before the ALJ. In response to the ALl's inquiry as to whether
plaintiff has any hobbies, plaintiff stated, "I like to fish and I like to camp, go camping." (R.43) When
the ALJ asked when was the last time he engaged in those activities, plaintiff responded: "Fishing was in
the spring, camping is a couple months ago." QQ.) Plaintiff did not tell the ALJ that he "only sat on the
porch" at the camp, but that he likes to "go camping." He also did not indicate at the hearing that he has
not been able to build models since before his injury in 20 I 0 but expressly stated, "I like to do ... like small
models on occasion, whenever I can do them." (R.44). In determining whether the ALJ's decision is
supported by substantial evidence, this court is limited to a review ofthe administrative record and cannot,
and will not, consider plaintiff's attempts to clarifY and/or expand upon his previous sworn testimony
before the ALJ, and his allegation that his transcribed testimony was "recorded inaccurately" is frivolous.
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While it is true, as plaintiff now asserts, that sporadic and transitory activities of daily
living cannot be used to show an ability to engage in substantial gainful activity, see Fargnoli.
247 F.3d at 40, n.5, the ALl did not do so here. Instead, the ALl properly considered plaintiffs
allegations of debilitating pain in light of not only his activities of daily living but also in light
of the objective medical evidence, which revealed the absence of clinical findings supporting
plaintiffs allegations of totally debilitating pain. Based on all of the evidence, the ALl found
plaintiffs statements to be not entirely credible.
It also is important to emphasize that the ALl did not reject plaintiffs testimony

entirely. Rather, to the extent plaintiffs 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 plaintiffs
allegations are not so supported did the ALl find them to be not credible.
The record demonstrates that the ALl 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)(ALJ'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 ALl's credibility
determination is supported by substantial evidence, and is satisfied here that it is .

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Plaintiff's final argument is that the ALl's residual functional capacity finding6 failed to
account for all of plaintiff's work-related limitations, in particular, Dr. Francis's restrictions
that plaintiff can only stand and walk one hour, and sit for two hours, in an 8-hour workday.
However, as already discussed, the more restrictive limitations advanced by Dr. Francis
simply were not supported by the objective medical evidence. The court is satisfied that the
ALJ's residual functional capacity finding in this case is supported by substantial evidence as
outlined in the decision, and that the ALJ' s hypothetical to the vocational expert incorporating
that residual functional capacity finding adequately accounted for all of plaintiff's limitations
that were supported by the objective evidence. Podedworny v. Harris, 745 F.2d 210 (3d Cir.
1984)(RFC and hypothetical to the vocational expert must reflect only those impairments and
limitations supported by the record). Accordingly, the vocational expert's response to that
hypothetical indicating that, despite those restrictions, plaintiff can perform his past relevant
work as a mail room clerk, constitutes substantial evidence supporting the ALJ's finding that
plaintiff is not disabled. 7

6 Residual functional capacity is defined as the most an individual still can do in a work setting
despite the limitations caused by his impairments. Fargnoli, 247 F3d at 40; 20 C.F.R. §404.1S45(a)(1).
Residual functional capacity is an assessment of an individual's ability to do sustained work-related
physical and mental activities in a work-setting on a regular and continuing basis, which means "8 hours
a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p. In assessing residual functional
capacity, the AU is to consider all of the relevant medical and other evidence in the case record in
determining the individual's ability to meet the physical, mental, sensory and other requirements of work.
20 C.F.R. §404.1545(a)(3)-(4); SSR 96-8p. The AU's residual functional capacity finding must '''be
accompanied by a clear and satisfactory explication of the basis on which it rests.''' Fargnoli, 577 F 3d at
4 ) (citation omitted).

Likewise, as a hypothetical to the vocational expert must reflect only those impairments and
limitations supported by the record, the AU did not err in rejecting the vocational expert's response that
an individual limited to standing and walking 1 hour and sitting 2 hours in an 8-hour workday would not
be able to perform any work, as those limitations are not supported by the medical evidence. See Jones v.
Barnhart, 364 F 3d 50 I, 506 (3d Cir. 2004)(AU has authority to disregard vocational expert's response to
hypothetical inconsistent with evidence).
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After carefully and methodically considering all of the medical evidence of record and
plaintiff's testimony, the ALJ detennined that plaintiff is not disabled wi thin 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 affinned.

/ Gustave Diamond
United States District Judge

cc:

Malcolm Bain (pro se)
529 Parker Road
Sarver, PA 16055
Michael Colville

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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