ANDERSON v. COLVIN

Filing 16

ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/29/2017. (dpo)

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

TYLER DEAN ANDERSON,

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) Civil Action No. 15-1301
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Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER

AND NOW, this 29th day of March, 2017, upon consideration of the parties=
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security=s final decision denying Plaintiff=s claim for Disability Insurance Benefits under
Subchapter II of the Social Security Act, 42 U.S.C. ' 401, et seq., finds that the Commissioner=s
findings are supported by substantial evidence and, accordingly, affirms. See 42 U.S.C. '
405(g); Jesurum v. Secretary of U.S. Department of Health & Human Services, 48 F.3d 114, 117
(3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom.,
507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). See also Berry v.
Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the
Commissioner=s decision must be affirmed, as a federal court may neither reweigh the evidence,
nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,

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642 F.2d 700, 705 (3d Cir. 1981)). See also Monsour Medical Center v. Heckler, 806 F.2d 1185,
1190-91 (3d Cir. 1986).1

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Plaintiff’s raises numerous arguments that the Administrative Law Judge (“ALJ”) erred
in finding him to be not disabled under the Social Security Act, none of which warrant remand of
this matter. Instead, the Court finds that substantial evidence supports the ALJ’s decision.

Plaintiff first suggests that he was given something less than a full and fair hearing before
the ALJ. This seems to be based on a few instances in the record where the ALJ tried to move
the hearing along. (R. 82-89). However, in context, the ALJ’s statements were no more than
part of her effort to expedite the process and were in no way meant to limit the evidence Plaintiff
could produce. Indeed, the ALJ expressly gave Plaintiff the option of scheduling a supplemental
hearing if he believed that he needed more time to present all of his evidence. (R. 82).
Moreover, Plaintiff in no way suggests what evidence, if any, he was precluded from entering
into the record or how anything in the record demonstrates bias or animus on the part of the ALJ.
These facts fall far short of a situation in which a claimant has been deprived of a fair hearing.
See Bordes v. Comm’r of Soc. Sec., 235 Fed. Appx. 853, 857-58 (3d Cir. 2007).
Plaintiff next argues that remand is warranted because the ALJ failed to analyze
thoroughly the listings contained in Part 404, Subpart P, Appendix 1 of the Code of Federal
Regulations pertaining to the musculoskeletal system, respiratory system, cardiovascular system,
endocrine disorders, and malignant neoplastic diseases, and, further, that her analysis of his
mental impairments pursuant to Listings 12.04 and 12.06 was insufficient. The Court disagrees.
The ALJ asked counsel at the hearing whether Plaintiff was claiming to meet any listing, and
counsel responded that he was not. (R. 52-53). Indeed, even now Plaintiff does not actually
argue that he meets any of the listings, merely that the ALJ’s discussion was not adequate
pursuant to the standard set forth in Burnett v. Comm’r of Soc. Sec., 220 F.3d 112 (3d Cir.
2000). In essence, he is arguing that the ALJ was required to provide a detailed analysis of about
half of all the listings even though he himself has never alleged that he meets one. As the Third
Circuit Court of Appeals has explained, Burnett does not require an ALJ to employ any specific
language or format in discussing the listings at Step Three of the sequential process, but rather
requires that ALJ “to ensure that there is sufficient development of the record and explanation of
findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). In
determining whether the ALJ has done so, the Court is to look at the decision as a whole to see
whether it illustrates that the ALJ considered the proper factors in reaching his or her conclusion.
See id. Here, the ALJ discussed the medical evidence at great length, and merely clarified at
Step Three that it did not meet the listings most likely at issue. Considering this extensive
discussion, and the fact that Plaintiff himself does not contend that the ALJ ignored any specific
evidence that would demonstrate that he met a listing, the Court finds that substantial evidence
supports the ALJ’s finding. See Lopez v. Comm’r of Soc. Sec., 270 Fed. Appx. 119, 121-22 (3d
Cir. 2008).
Plaintiff’s arguments about the weight given to aspects of the opinion of Dr. Paul Means,
D.O., one of his treating physicians, are somewhat intertwined, but lack merit in any regard. For
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instance, Plaintiff argues that the ALJ erred in not giving controlling weight to Dr. Means’
opinion that he would miss three or more days of work per month as a result of his impairments.
(R. 451). It is true that when assessing a claimant’s application for benefits, the opinion of the
claimant’s treating physician generally is to be afforded significant weight. See Fargnoli v.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
In fact, the regulations provide that a treating physician’s opinion is to be given “controlling
weight” so long as the opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record. 20
C.F.R. § 404.1527(d)(2); Fargnoli, 247 F.3d at 43; Plummer, 186 F.3d at 429. As a result, the
ALJ may reject a treating physician’s opinion outright only on the basis of contradictory medical
evidence, and not on the basis of the ALJ’s own judgment or speculation, although he may afford
a treating physician’s opinion more or less weight depending upon the extent to which
supporting explanations are provided. See Plummer, 186 F.3d at 429.
However, it is also important to remember that:
The ALJ -- not treating or examining physicians or State agency
consultants -- must make the ultimate disability and RFC
determinations. Although treating and examining physician
opinions often deserve more weight than the opinions of doctors
who review records, “[t]he 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). State agent opinions merit significant consideration as
well.
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)(internal citations omitted in
part). Here, the ALJ included in her decision a substantial discussion as to why she weighed Dr.
Means’ opinion as she did and as to how she formulated Plaintiff’s residual functional capacity
(“RFC”).
As Plaintiff acknowledges, the ALJ actually afforded “significant” weight to Dr. Means’
opinion, with the exception as to his opinion regarding work absences. (R. 36). Regarding Dr.
Means’ opinion that Plaintiff would miss three or more days of work per month, the ALJ
discussed at significant length how such an opinion was inconsistent with the medical evidence,
including Dr. Means’ own clinical findings. She further explained that such an opinion was
inconsistent with the rest of Dr. Means’ assessment of mild to moderate limitations. (Id.).
Indeed, Dr. Means did not in any way explain the medical basis for finding that Plaintiff would
be absent from work for that specific amount of time, nor is there other medical evidence in the
record supporting such a finding. As such, the ALJ was justified in giving less weight to this
aspect of Dr. Means’ opinion.
Plaintiff further argues that the ALJ erred in not specifically addressing the Global
Assessment of Functioning (“GAF”) score of 50 assessed to him by Dr. Means. Although the
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ALJ did not specifically discuss this score, under the facts of this case, the Court disagrees that
express discussion of the score was necessary.
GAF scores do not directly correlate to a determination of whether an individual is or is
not disabled under the Act:
The GAF scale, which is described in the DSM-III-R (and the
DSM-IV), is the scale used in the multiaxial evaluation system
endorsed by the American Psychiatric Association. It does not
have a direct correlation to the severity requirements in our mental
disorders listings.
65 Fed. Reg. 50746, 50764-65. While under certain circumstances a GAF score can be
considered evidence of disability, standing alone, a GAF score does not evidence an impairment
seriously interfering with a claimant’s ability to work. See Lopez v. Barnhart, 78 Fed. Appx.
675, 678 (10th Cir. 2003). GAF scores may indicate problems that do not necessarily relate to
the ability to hold a job. See id.; Zachary v. Barnhart, 94 Fed. Appx. 817, 819 (10th Cir. 2004);
Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7th Cir. 2003); Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 241 (6th Cir. 2002); Power v. Astrue, 2009 WL 578478, at *8 (W.D. Pa. Mar. 5,
2009). For instance, a GAF score between 41 and 50 reflects “serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed., Text
Rev. 2000)(emphasis added). Accordingly, the mere fact that a treating mental health care
provider assigned a certain GAF score would not necessarily indicate that Plaintiff is disabled.
Nonetheless, a GAF score is evidence that an ALJ should consider in determining a claimant’s
impairments and limitations in setting forth the claimant’s RFC and in fashioning a hypothetical
question to the vocational expert (“VE”). See Irizarry v. Barnhart, 233 Fed. Appx. 189 (3d Cir.
2007).
Of course, an ALJ need not discuss every piece of evidence in the record, see Fargnoli,
247 F.3d at 42, and GAF scores are not afforded any unique status in that they must expressly be
discussed and analyzed in all cases. The Court must look at the overall context. For example, in
Gilroy v. Astrue, 351 Fed. Appx. 714 (3d Cir. 2009), the Third Circuit Court held that remand
was not required where the ALJ did not reference a GAF score of 45 assigned by the treating
psychiatrist where the ALJ did refer to observations from the psychiatrist’s reports and where the
psychiatrist did not explain the basis for the GAF score.
In this case, as in Gilroy, the ALJ did discuss Dr. Means’ findings at great length. As
discussed above, she actually afforded significant weight to Dr. Means’ opinion except for his
opinion as to work absences. She therefore agreed with the limitations Dr. Means associated
with that score for the most part. In regard to work absences, nothing suggests that the score
itself sheds any additional light on how much time Plaintiff would miss from work. This is not,
therefore, a case where the ALJ ignored a GAF score offered by a treating physician or
psychologist in the course of rejecting limitations offered by that professional. Rather, the ALJ
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largely accepted Dr. Means’ findings, including the GAF score. While a GAF score can assist an
ALJ in understanding the limitations contained in the opinions of medical professionals, the
actual number itself does little to describe the specific functional limitations caused by the
claimant’s impairments. See Howard, 276 F.3d at 241 (“While a GAF score may be of
considerable help to the ALJ in formulating the RFC, it is not essential to the RFC’s accuracy.”).
It is the limitations faced by a claimant, and not an ambiguous GAF score, that must be included
in the RFC and hypothetical. The RFC and hypothetical question in this case contained
numerous limitations based on Plaintiff’s mental health impairments. (R. 29).
The closest Plaintiff comes to alleging a specific deficiency in his RFC caused by the
ALJ’s alleged disregard of his GAF score of 50 is in claiming that a limitation to simple, routine,
repetitive tasks does not adequately address such a score. That does not matter here, though,
because the RFC contained far more specific limitations as to Plaintiff’s mental functional
capacity. Again, for the most part, the ALJ actually adopted Dr. Means’ opinion as to functional
limitations.
Under these circumstances, there was no particular need to discuss the GAF score itself.
The ALJ did not reject the score, or any of the medical evidence in this case, but rather used the
evidence to formulate the RFC and hypothetical to the VE. Plaintiff has not demonstrated how
any of the limitations contained in the RFC are contradicted by his GAF score of 50. Moreover,
since a GAF score does not directly correlate to a finding of disability, and since a GAF score
can mean many things, there would be no basis for including the score itself in the RFC. Simply
put, nothing in the RFC determined by the ALJ suggests that she rejected the score. See Rios v.
Commissioner of Soc. Sec., 444 Fed. Appx. 532, 535 (3d Cir. 2011) (remand not warranted
where ALJ was not cherry-picking or ignoring medical assessments that ran counter to her
finding).
Plaintiff raises a couple of other concerns regarding the ALJ’s RFC finding. First, he
asserts that the ALJ’s finding that he could perform no more than frequent fingering was in error
because she did not properly consider or explain the effects of Plaintiff’s documented hand
problems. However, while the record does demonstrate complaints about hand and/or upper
extremity pain in 2013 and 2014, it was always in the context of a broader complaint about
chronic pain. (R. 395, 402, 406, 410). Moreover, none of the records indicate what, if any,
functional limitations result from Plaintiff’s hand pain. In fact, fingering or fine manipulation
are never offered as exacerbating factors or as demonstrated functional limitations. (Id.).
Further, at each appointment where Plaintiff’s hand pain was discussed, he was found to have
normal 5/5 muscle strength, and bulk and tone were normal. (R. 396, 403, 407, 411). Indeed,
the evidence arguably supports the ALJ’s statement that the record “do[es] not support functional
difficulties fingering” at all. In any event, the record clearly supports her decision to give
Plaintiff “the utmost benefit of the doubt” in including a restriction to frequent fingering. (R.
36). “Frequent” in the context of a Step Five determination generally means occurring between
one third and two thirds of the day, see S.S.R. 83-10, 1983 WL 31251, at *6 (1983), and there is
substantial evidence, as discussed above, for such a finding.
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Plaintiff also argues that the ALJ failed to give full and proper consideration to his
obesity in formulating the RFC. Not only does Plaintiff fail to explain how his obesity actually
does impact his RFC beyond the limitations already included therein, his claim that the ALJ did
no more than simply state that she took Plaintiff’s obesity into account is simply wrong. Plaintiff
may have missed the lengthy analysis regarding the impact of his obesity on the RFC in the
ALJ’s decision (R. 35-36), but this Court did not.
The next in Plaintiff’s long string of arguments is that the representative jobs which the
VE found him able to perform were incompatible with his mental functional capacity because at
least one of them requires a “reasoning level” of 3 under the Dictionary of Occupational Titles
(“DOT”). “The DOT is a vocational dictionary that lists and defines all jobs available in the
national economy and specifies what qualifications are needed to perform each job.” McHerrin
v. Astrue, Civ. No. 09-2035, 2010 WL 3516433, at *3 (E.D. Pa. Aug. 31, 2010) (citing S.S.R.
00-4p, 2000 WL 1898704 (Dec. 4, 2000)). Among other qualifications, jobs are assigned a
General Educational Development level, which includes a reasoning level from 1 to 6. Jobs with
a reasoning level of 3 require that an employee “[a]pply commonsense understanding to carry
out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems
involving several concrete variables in or from standardized situations.” DOT, App. C, § III.
Here, after considering Plaintiff’s fingering limitations, the VE testified to two examples of jobs
that Plaintiff could perform – addresser clerk, identified as DOT 209.587-010, and document
preparation clerk, DOT 249.587-018. (R. 95, 98). While the former has a reasoning level of 2,
the latter has a reasoning level of 3. Plaintiff does not dispute that a reasoning level of 2 is
consistent with his RFC, but contends that a reasoning level of 3 is incompatible with his
limitation to simple, routine, repetitive work. However, the Third Circuit has expressly declined
to find that there is a per se conflict between a reasoning level of 3 and a limitation to simple,
routine tasks and unskilled work. See Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014).
Instead, the Circuit Court explained that remand is not necessary in such cases where the ALJ
discharged his or her duty to ask the VE whether his or her testimony was consistent with the
DOT on the record and where the following factors were met: (1) the claimant did not seriously
argue an inability to perform the jobs in question and the record supports a finding that he or she
can perform such work; (2) the claimant did not point out the conflict at the hearing; and (3) the
challenged jobs were only representative examples. See id. at 618-619.
The situation here is much the same as in Zirnsak. First, the ALJ did, in fact, ask the VE
if his testimony was consistent with the DOT, and the VE responded that it was. (R. 97).
Further, here, as in Zirnsak, Plaintiff has made no real argument that he could not perform the
work of a document preparation clerk, and, as discussed herein, the ALJ discussed the medical
evidence and its impact on Plaintiff’s functional limitations at great length. Moreover, Plaintiff
did not raise any inconsistencies at the hearing. Finally, the jobs offered by the VE were
expressly offered as “examples.” (R. 96). Accordingly, there is no basis for remanding the case
based on this argument. See also Brush v. Colvin, Civ. No. 3:14-cv-2143, 2015 WL 3866078
(M.D. Pa. June 23, 2015). The Court further notes that, as discussed, one of the jobs mentioned
does, in fact, have a reasoning level of 2, which Plaintiff does not challenge. While the
Commissioner does bear the burden of demonstrating that the claimant can perform jobs existing
in the national economy at the fifth step of the sequential analysis, see Zirnsak, 777 F.3d at 616,
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this burden is satisfied if the ALJ identifies at least one occupation with a significant number of
jobs in the national economy that the claimant can perform. See Wilkinson v. Comm’r of Soc.
Sec., 558 Fed. Appx. 254, 256 (3d Cir. 2014) (citing 20 C.F.R. § 404.1566(b)).
Accordingly, the addresser clerk position alone would satisfy the Commissioner’s burden at Step
Five.
Finally, Plaintiff invites the Court to consider the medical source statement from Scott
Tracy, M.D., that he submitted to the Appeals Council (R. 499-510), which he argues amplifies
the seriousness of his conditions. He also asks alternatively for the case to be remanded for this
evidence and other new evidence to be considered. The Court finds neither of these options to be
warranted.
It is well-established that evidence that was not before the ALJ cannot be considered by a
district court in its determination of whether or not the ALJ’s decision was supported by
substantial evidence. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001); Chandler v.
Commissioner of Soc. Sec., 667 F.3d 356, 360 (3d Cir. 2011). Accordingly, the Court cannot
rely on Dr. Tracy’s opinion or any of the other additional records not submitted to the ALJ in
making its determination here. As discussed herein, based on the record before the ALJ at the
time she issued her decision, substantial evidence supported her finding that Plaintiff was not
disabled.
However, a district court can remand a case on the basis of new evidence under sentence
six of 42 U.S.C. § 405(g). Section 405(g) provides, in relevant part:
[The court] may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for failure to incorporate such evidence into the
record in a prior proceeding.
Therefore, to remand a case based on new evidence which has not been presented to the ALJ, the
Court must determine that the following criteria have been met: First, the evidence must be new
and not merely cumulative of what is in the record. Second, the evidence must be material. This
means that it must be relevant and probative, and there must be a reasonable possibility that the
new evidence would have changed the outcome of the determination. Third, the plaintiff must
demonstrate good cause for not having incorporated the new evidence into the administrative
record. See Matthews, 239 F.3d at 594; Szubak v. Secretary of Health & Human Services, 745
F.2d 831, 833 (3d Cir. 1984). Plaintiff cannot meet this burden.
Because Dr. Tracy’s opinion and the other records at issue were not included in the
record before the ALJ, the Court will assume that these records are new and not merely
cumulative of what is in the record. However, many of these exhibits are from after the date the
ALJ issued her decision and are therefore not material, since they do not relate to the relevant
time period. See Szubak, 745 F.2d at 833 (“An implicit materiality requirement is that the new
evidence relate to the time period for which benefits were denied, and that it not concern
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for Summary
Judgment (document No. 9) is DENIED and Defendant=s Motion for Summary Judgment
(document No. 13) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

evidence of a later-acquired disability or of the subsequent deterioration of [a] previously nondisabling condition.”); Rainey v. Astrue, Civ. No. 11-125-E, 2012 WL 3779167, at *8 (W.D. Pa.
Aug. 31, 2012); Harkins v. Astrue, Civ. No. 10-174, 2011 WL 778403, at *1 n.1 (W.D. Pa. Mar.
1, 2011). Dr. Tracy’s opinion is dated June 10, 2014, approximately six weeks after the ALJ’s
decision was issued, and he indicates in his opinion that he had been seeing Plaintiff for five
weeks. Therefore, this provider did not provide care at all during the relevant time period, nor is
there anything in his opinion to suggest that it was meant to relate back to that period. The May
6, 2014 office notes from Dr. Means (R. 514-18) also post-date the ALJ’s decision, albeit only
by about a week. However, considering that the record already contains Dr. Means’ opinion as
to Plaintiff’s functional limitations, as well as numerous treatment records from Dr. Means from
the relevant time period. it does not appear that there is a reasonable possibility that these
additional few notes would have changed the outcome of the determination here. Indeed, Dr.
Means himself does not state that these records would change his opinion (largely adopted by the
ALJ) in any way. The May 2015 records from Dr. Shahid M. Malik, M.D., attached to
Plaintiff’s brief are from well after the relevant time period. To the extent these documents are
relevant to a showing that Plaintiff’s condition has deteriorated since the ALJ’s decision, he
certainly could rely on the evidence in support of a new application for benefits.
As to the one exhibit that is from the relevant time period, a liver biopsy report (R. 51213), it likewise does not appear that there is a reasonable possibility that this information would
have changed the outcome of the determination here. First, the results merely confirm the
hepatic sarcoidosis and cirrhosis suspected by Dr. Douglas Klions, M.D., and Dr. Means (R. 3435), which the ALJ already considered in formulating the RFC. Further, Dr Klions indicated the
Plaintiff’s treatment would not change much based on such a diagnosis. (R. 34). Simply put,
nothing in this record suggest any additional functional limitations not already accounted for by
the ALJ.
Accordingly, for all of the reasons stated herein, the Court affirms the ALJ’s decision.

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