SELVAGGI v. COMMISSIONER OF SOCIAL SECRUITY ADMINISTRATION

Filing 14

ORDER denying 11 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/6/17. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GREGORY JOHN SELVAGGI

)
)

No. 15-901

v.
CAROLYN W. COLVIN
OPINION AND ORDER
SYNOPSIS
Plaintiff filed an application for disability benefits, disability insurance benefits, and
supplemental social security income benefits, based on physical impairments. Plaintiff’s claim
was denied initially and upon hearing before an administrative law judge (“ALJ”). The Appeals
Council denied his request for review, and this appeal followed. Before the Court are the parties’
Cross-Motions for Summary Judgment. For the following reasons, Plaintiff’s Motion will be
denied, and Defendant’s granted.
OPINION
I.

STANDARD OF REVIEW

Judicial review of the Commissioner's final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3)7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
district court's role is limited to determining whether the record contains substantial evidence to
support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
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findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh the evidence of record; the court can only judge the propriety of the decision with
reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer
v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
67 S. Ct. 1575, 91 L. Ed. 1995 (1947). Otherwise stated, “I may not weigh the evidence or
substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert
opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those
findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011
U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).
II.

THE PARTIES’ MOTIONS

Plaintiff contends that the ALJ failed to properly consider the opinions of Plaintiff’s
treating physician, Dr. Violagio; failed to properly assess Plaintiff’s credibility; failed to properly
assess his residual functional capacity (“RFC”); and mischaracterized and misstated the record.
A. Dr. Violago
First, I address Plaintiff’s contentions regarding his treating physician, Dr. Violago. An
ALJ is entitled to discount a treating physician’s opinion that lacks support, or is contradicted by
other medical evidence. Ford v. Comm'r Soc. Sec., 611 Fed. Appx. 102 (3d Cir. 2015).
Moreover, an ALJ is permitted to rely on reviewing opinions, even when rejecting a treating
source. Buckner v. Colvin, 2016 U.S. Dist. LEXIS 53456 (M.D. Pa. Mar. 30, 2016). The ALJ is

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entitled to weigh the entirety of the record in making his finding. Brown v. Astrue, 649 F.3d 193,
196 (3d Cir. 2011).
Here, the ALJ considered Dr. Violago’s opinion and records, noting that Plaintiff’s
diagnoses were largely based on Plaintiff’s subjective statements. Diagnostic testing showed
only mild conditions, and were otherwise normal and unremarkable. Another treating source,
Dr. Platto, noted only minimal findings. The ALJ therefore accorded Dr. Violago’s opinion
“some weight,” to the extent that it was consistent with the record. The ALJ further noted,
however, that the mild objective findings undermined Dr. Violago’s assessment. As Plaintiff
observes, the ALJ gave the opinion of Dr. Kumar, the state agency medical consultant,
significant weight. In so doing, the ALJ observed that Dr. Kumar’s opinion was consistent with
the objective evidence, and was not undermined by reliance on Plaintiff’s subjective statements.
I find no error in the ALJ’s approach to Dr. Violago.
B. Credibility
Plaintiff next argues that the ALJ erred in failing to find Plaintiff fully credible. An ALJ’s
credibility assessments are entitled to substantial deference. Szallar v. Comm'r Soc. Sec., 631
Fed. Appx. 107 (3d Cir. 2015). Plaintiff contends that his subjective complaints have been
consistent, and are in concert with the medical evidence supplied by his treating physicians. As
Plaintiff observes, the records reflect degenerative disc disease and degenerative joint disease; he
also correctly observes that objective evidence of pain itself is not required. Plaintiff does not,
however, contradict the ALJ’s characterizations of the objective findings regarding Plaintiff’s
degenerative conditions as mild or minimal. The operative question is not merely whether a
claimant is impaired, but whether he is so impaired as to be unable to work; in other words, the
ALJ did not ignore Plaintiff’s conditions or diagnoses. Moreover, there is no suggestion that the

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ALJ required objective evidence of pain itself. I find no error in the ALJ’s approach to
Plaintiff’s credibility.
C. RFC and GRIDS 201.14
Next, Plaintiff contends that the ALJ failed to comply with SSR 96-8p, and failed to find
that Plaintiff satisfied Section 201.14 of the GRIDS. SSR 96-8p states the Social Security
Administration’s policies regarding the assessment of residual functional capacity (“RFC”). It is
unclear precisely how Plaintiff contends that the ALJ failed to comply with the policy
interpretation. To the extent that Plaintiff asserts that Dr. Violago’s opinion supports an RFC
different from that set forth by the ALJ, I reject that argument for reasons stated supra.
Plaintiff’s contention regarding Section 201.14 fails for the same reasons.
D. Remaining Arguments
Finally, Plaintiff asserts his remaining arguments in what amounts to a “catchall” segment
of his brief. He claims that the ALJ mischaracterized or misstated the record, demonstrated bias
against Plaintiff based on his substance abuse history, and improperly considered his activities of
daily living. An ALJ is permitted to reject medical opinion, so long as he explains his reasons
for doing so.
In particular, Plaintiff again points to the fact that the record contains diagnoses, based on
objective testing, reflective of physical problems. Again, however, the ALJ did not ignore those
diagnoses; instead, he pointed to evidence discounting the severity of those diagnoses, and
accordingly discounting the severity of Plaintiff’s complaints. As regards the opinion of agency
consultant Dr. Newman, Plaintiff contends that the ALJ erred in affording it limited weight.
Plaintiff argues that Dr. Newman’s opinion was supported by RFC assessments completed by a
representative of Wesley Spectrum Services. The ALJ identified factors that undermined the

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assessment, such as a lack of corroborating records and objective evidence, and a heavy reliance
on Plaintiff’s subjective statements. The ALJ, however, found that Dr. Newman’s opinion was
inconsistent with his own examination. The ALJ also considered an RFC completed by Amy
Ankrom, a certified registered nurse at Washington Communities Human Services, and later
modified by the addition of the signature of Dr. Naryan. Even assuming that the ALJ incorrectly
attributed the report to Ms. Ankrom rather than Dr. Naryan, the ALJ gave the report “some, but
less than great weight” for other reasons, such as because Ms. Ankrom spent forty minutes with
Plaintiff, the RFC relied heavily on Plaintiff’s subjective statements, and the RFC was
inconsistent with the objective evidence of record. The ALJ adequately explained his reasoning,
and that reasoning does not lack substantial support in the record.
Regarding Plaintiff’s assertions of bias and those regarding the ALJ’s approach to
activities of daily living, I reject those assertions. An ALJ is presumed to be unbiased, and "[a]
party asserting bias must show that the behavior of the ALJ was 'so extreme as to display clear
inability to render fair judgment.'" Maher v. Astrue, 2009 U.S. Dist. LEXIS 91549 (W.D. Pa.
Sept. 30, 2009). There is no suggestion, beyond his mention of Plaintiff’s substance abuse
history, that the ALJ harbored or acted on any particular bias against Plaintiff. Moreover, the
ALJ adequately considered Plaintiff’s activities of daily living, in the context of Plaintiff’s
functionality. There is no suggestion that he employed any assumptions regarding Plaintiff’s
ability to engage in those activities on a sustained basis.
CONCLUSION
In sum, pursuant to the limited scope of review applicable to this appeal, I find that the
ALJ’s decision was supported by substantial evidence. Plaintiff’s Motion will be denied, and
Defendant’s granted. An appropriate Order follows.

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ORDER
AND NOW, this 7th day of January, 2017, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion is DENIED, and Defendant’s GRANTED.
BY THE COURT:
/s/Donetta W. Ambrose
Donetta W. Ambrose
Senior Judge, U.S. District Court

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