COLOMBIN v. COLVIN

Filing 13

OPINION and ORDER denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/19/17. (sps)

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

JACOB F. COLOMBIN,

)
)
)
)
)
)
)
)
)
)

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

Civil Action No. 16-311

AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 9 and
11). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 10 and 12). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am granting Defendant=s Motion for Summary Judgment (ECF No. 11) and denying Plaintiff=s
Motion for Summary Judgment. (ECF No. 9).
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security (ACommissioner@) denying his applications for disability insurance benefits and
supplemental security insurance benefits under the Social Security Act (AAct@). Plaintiff filed his
applications alleging he had been disabled since October 30, 2010. (ECF No. 7-7 pp. 4, 14)
Administrative Law Judge (“ALJ”), Charles Pankow, held a hearing on June 6, 2014, at which
Plaintiff was represented by counsel. (ECF No. 7-2, pp. 26-49). On August 26, 2014, the ALJ
found that Plaintiff was not disabled under the Social Security Act. (ECF No. 7-2, pp. 12-25).

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After exhausting all of his administrative remedies thereafter, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (ECF No. 9 and 11). The
issues are now ripe for review.
II. LEGAL ANALYSIS
A. 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)). Additionally,
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.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. ' 423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. §§ 404.1520(a), 416.920(a). The

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ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity;
(2) if not, whether the claimant has a severe impairment; (3) if the claimant has a severe
impairment, whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., app. 1;
(4) if the impairment does not satisfy one of the impairment listings, whether the claimant=s
impairments prevent him from performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he 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; 416.920. The claimant carries the initial burden of
demonstrating by medical evidence that he is unable to return to his previous employment (steps
1-4). Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof
shifts to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.

Listing 12.05C

Plaintiff’s first argument is that the ALJ erred in failing to properly consider whether
Plaintiff’s intellectual deficits met or equaled the requirements of Listing 12.05C. (ECF No. 10, pp.
10-14). At step two of the analysis, an ALJ must determine whether the claimant has a
medically determinable impairment that is severe or a combination of impairments that is severe.
20 C.F.R. §§ 404.1520(a); 416.920(a). An impairment is not severe if it does not significantly
limit the physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1520(c),

404.1521(a); 416.920(c), 416.1521(a). If a claimant is found to have a severe impairment, then
the ALJ proceeds to the next step. 20 C.F.R. §§ 404.1520(a); 416.920(a).

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In this case, the ALJ found that Plaintiff had severe impairments. (ECF No. 7-2, p. 14).
The ALJ then proceeded to the next step. Id. at pp. 21-36. In step three of the analysis, the
ALJ must determine if the claimant=s impairment meets or is equal to one of the impairments listed
in 20 C.F.R., Pt. 404, subpt. P, app’x 1. Jesurum v. Secretary of Health & Human Services, 48
F.3d 114, 117 (3d Cir. 1995). An applicant is per se disabled if the impairment is equivalent to a
listed impairment and, thus, no further analysis is necessary. Burnett v. Commissioner, 220 F.3d
112, 119 (3d Cir. 2000).
At issue in this case is Listing 12.05 (intellectual disability). See 20 C.F.R. pt. 404, subpt.
P, app. 1 § 12.05. Listing 12.05 – Intellectual Disability provides:
Intellectual disability refers to significantly subaverage general intellectual function
with deficits in adaptive functioning initially manifested during developmental
period; i.e., the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs
(e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such
that the use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation or function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at
least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintain social functions; or
3. Marked difficulties in maintaining concentration, persistence, or pace;
or

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4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. pt. 404, subpt. P., app. 1 §12.05. As the disjunctive language of the Listing indicates,
the required level of severity for this disorder is met when the requirements of the introductory
paragraph and paragraphs A, B, C or D of the Listing are satisfied.
Plaintiff contends the ALJ erred in finding that he did not satisfy Part C of Listing 12.05.
(ECF No. 10, at 10-18). As set forth above, to satisfy Part C, Plaintiff must have: 1) significantly
subaverage intellectual functioning with deficits in adaptive behavior initially manifested during
developmental period (i.e., before age 22); 2) a valid verbal, performance, or full scale IQ of 60
through 70, and 3) a physical or other mental impairment imposing an additional and significant
work-related limitation or function. 20 C.F.R. pt. 404, subpt. P., app. 1 §12.05C; Williams v.
Sullivan, 970 F.2d 1178, 1184 (3d Cir. 1992).

Plaintiff suggests that he meets said criteria.

(ECF No. 10, pp. 10-18). The ALJ found, however, as follows:
Finally, the “paragraph C” criteria of listing 12.05 are not met because the claimant
does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function. The claimant was administered the Wechsler
Intelligence Scale for Children in April 2000 and he scored 82 in verbal IQ, 69 in
performance IQ, and 73 in full scale IQ (Exhibit 1F). However, the undersigned
notes that these IQ scores were rendered when the claimant was fourteen years
old and are not a valid indication of the claimant’s cognitive functioning. Further,
there is no evidence of deficits of adaptive functioning. For instance, the claimant
reported that he prepares meals, performs household chores, has no problems
with personal care and grooming, attends GED instructional classes, and uses the
computer.
(ECF No. 7-2, at 17). After a careful review of the record, I find there is substantial evidence of
record to support the ALJ’s decision that Plaintiff did not meet the listing criteria.
Contrary to Plaintiff’s argument otherwise, Plaintiff did not produce evidence of a current
valid IQ score of 60-70. According to the Program Operations Manual System (POMS), “IQ
scores tend to stabilize by the age of 16. Regardless of the claimant’s age at adjudication,
reliable IQ testing obtained at age 16 or older is valid to support the IQ findings required under

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listing 12.05.”

POMSDI 24515.020(c)(5)(a); see also 20 C.F.R. pt. 404, subpt. P., app. 1

§112.00(d)(1) (“IQ test results obtained at age 16 or older should be viewed as a valid indication
of the child's current status, provided they are compatible with the child's current behavior. IQ
test results obtained between ages 7 and 16 should be considered current for 4 years when the
tested IQ is less than 40, and for 2 years when the IQ is 40 or above.”). As the record reveals,
Plaintiff was 24 at the time of his applications, and the IQ scores produced by Plaintiff were from
1990 and 2000, before Plaintiff was 16 years old. Such evidence might be indicative of deficits in
adaptive behavior initially manifested during developmental period (i.e., before age 22), but they
do not constitute valid current IQ scores. POMSDI 24515.020(c)(5)(a); see also 20 C.F.R. pt.
404, subpt. P., app. 1 §112.00(d)(1); Smith v. Colvin, Civil Action No. 15-1426, 2016 WL 6729120,
at **2-3 (W.D. Pa. Nov. 15, 2016); Miller v. Astrue, Civil Action No. 10-1353, 2011 WL 2580516, at
*6 (W.D. Pa. June 28, 2011).
Plaintiff further suggests that the ALJ should have more fully developed the record by
requesting formalized IQ testing. (ECF No. 10, at 11). I disagree. The regulations make clear
that it is the plaintiff’s burden to prove that he is disabled, which means the plaintiff has the duty to
provide medical and other evidence showing that he has an impairment and how severe it is. 20
C.F.R. §§ 404.1512(a-c), 416.912(a-c). This burden does not shift to the ALJ.
Nonetheless, an ALJ has the duty to develop the record sufficiently to make a
determination of disability.

Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995); 20 C.F.R. §§

404.1512(d), 416.912(d). Usually, the issue of whether an ALJ had developed the record fully
arises in situations involving a pro se claimant where the duty is heightened. Early v. Heckler,
743 F.2d 1002 (3d Cir. 1984). Such is not the case here. “When an applicant for social security
benefits is represented by counsel the administrative law judge is entitled to assume that the
applicant is making his strongest case for benefits.” Yoder v. Colvin, No. 13-107, 2014 WL
2770045, *3 (W.D. Pa. June 18, 2014) (citing Lofland v. Astrue, No. 12-624, 2013 WL 3927695,

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*17 (D. Del. July 24, 2013)). Plaintiff was represented by counsel at the hearing, yet, during the
hearing, his counsel did not ask the ALJ to order a current IQ test on Plaintiff’s behalf or to keep
the record open to secure an IQ test. (ECF No. 7-2, at 25-48). Rather, Plaintiff’s counsel cited
the 2000 IQ scores in support of his 12.05C argument. Id. at 46. In addition, the record reflects
that the Social Security Administration scheduled a mental status examination of Plaintiff at the
initial determination level based on his allegations of severe mental health symptoms, but that
Plaintiff asked that the examination be cancelled and a determination be made based on the
medical evidence in the file. (ECF No. 7-3, at 73, 79).
Ultimately, the decision whether to order a consultative examination or additional testing is
within the discretion of the ALJ, and I must defer to that decision where the record as a whole
contains sufficient evidence for the ALJ to make a determination. See 20 C.F.R. §§ 404.1517,
404.1519a, 416.917, 416.919a; Veite v. Astrue, No. 11-28, 2011 WL 6780655, at *10 (W.D. Pa.
Dec. 27, 2011). Based on my review of the record, I find there was sufficient evidence for the
ALJ to determine that Plaintiff did not meet the requirement of Listing 12.05C that requires a valid
verbal, performance, or full scale IQ of 60 through 70. (ECF No. 7-2, 14-22, and evidence cited
therein). Therefore, I find the ALJ did not have a duty to develop the record further, and remand
is not warranted on this issue.
Plaintiff additionally faults the ALJ for failing to accept, reject, or contradict by contrary
medical evidence, the findings of psychiatrists Donald Breneman and Gowri Arul. (ECF No. 10,
at 14-17). Dr. Breneman evaluated Plaintiff on January 12, 2011, and Dr. Arul treated Plaintiff
during a brief hospital stay in October 2011. (ECF No. 7-12, Exs. 5F, 9F). This argument is
unpersuasive.

The amount of weight afforded to medical opinions is well-established.

Generally, the ALJ will give more weight to the opinion of a source who has examined the
claimant than to a non-examining source.

20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1).

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addition, the ALJ generally will give more weight to opinions from a treating physician “since these

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sources are likely to be the medical professionals most able to provide a detailed longitudinal
picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.”

Id. §§

404.1527(c)(2); 416.927(c)(2). If the ALJ finds that “a treating source’s opinion on the issue(s) of
the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence [of] record,” he must give that opinion controlling weight.

Id.

Also, “the more

consistent an opinion is with the record as a whole, the more weight [the ALJ generally] will give to
that opinion.” Id. §§ 404.1527(c)(4); 416.927(c)(4).
In the event of conflicting medical evidence, the Court of Appeals for the Third Circuit has
explained:
“A cardinal principle guiding disability determinations is that the ALJ accord
treating physicians' reports great weight, especially ‘when their opinions reflect
expert judgment based on continuing observation of the patient's condition over a
prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000)
(quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999)). However, “where ...
the opinion of a treating physician conflicts with that of a non-treating,
non-examining physician, the ALJ may choose whom to credit” and may reject the
treating physician's assessment if such rejection is based on contradictory medical
evidence. Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating
physician is to be given controlling weight only when it is well-supported by medical
evidence and is consistent with other evidence in the record.
Becker v. Comm'r of Soc. Sec. Admin., 403 F. App'x 679, 686 (3d Cir. 2010). Although the ALJ
may choose whom to credit when faced with a conflict, he “cannot reject evidence for no reason or
the wrong reason.” Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009).
As an initial matter, neither Dr. Breneman’s nor Dr. Arul’s brief treatment records discuss
or concern Plaintiff’s IQ scores. (ECF No. 7-12, Exs. 5F, 9F). Thus, the records have no
bearing on the fact that Plaintiff failed to meet the 12.05C requirement of a valid verbal,
performance, or full scale IQ of 60 through 70. Similarly, neither doctor opines on Plaintiff’s

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ability to work or perform work-related activities. Id. Moreover, and in any event, the ALJ
adequately addressed Dr. Breneman’s and Dr. Arul’s records in his opinion. (ECF No. 7-2, at
14-22 (frequently citing Exs. 5F & 9F)). As Plaintiff acknowledges in his brief, the ALJ expressly
mentions Dr. Breneman’s notes, including Dr. Breneman’s comments that Plaintiff demonstrated
no signs of undue anxiety or depression, but appeared to show a significant degree of immaturity
and lack of drive.

See id. at 18 (citing Ex. 5F).

Likewise, the ALJ specifically discusses

Plaintiff’s October 11-14, 2011 hospital stay, and Dr. Arul’s related notes, stating that although
Plaintiff was admitted to the hospital for depression and suicidal ideation, he was stable upon
discharge and repeatedly denied any suicidal or homicidal thinking. Id. at 16 (citing Ex. 9F).
The ALJ also directly discusses Plaintiff’s range of GAF scores, noting that the higher GAF scores
of 60 were supported by clinical findings, where the lower scores ranging from 30 to 50 were
inconsistent with the record as a whole, including Plaintiff’s activities of daily living. Id. at 22
(citing Exs. 5F, 9F, and numerous additional exhibits). Even if the ALJ’s discussion of the
records at issue was inadequate, which it was not, nothing in those records demonstrates that
Plaintiff’s mental impairments constituted an intellectual disability within the meaning of Listing
12.05. For all of these reasons, the ALJ did not err in weighing the medical evidence of record in
evaluating Plaintiff’s mental health impairments, and substantial evidence supports his
conclusions in this regard.
C. RFC Finding
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that Plaintiff was limited to
unskilled work and required a low stress environment such that there are few changes in work
setting and no fast pace or quota production standards. The ALJ further restricted Plaintiff to
occasional contact with coworkers and supervisors and no contact with the general public. (ECF
No. 7-2, at 17-22). The ALJ concluded that, considering his age, education, work experience,

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and RFC, there were jobs existing in significant numbers in the national economy that Plaintiff
could perform. Id. at 23-24.
Plaintiff argues that the ALJ’s RFC analysis is deficient because, although the ALJ gave
significant weight to the opinion of state agency consultant Arlene Rattan, Ph.D., his RFC finding
failed to account for the moderate limitations found by Dr. Rattan, including moderate limitations
on Plaintiff’s ability to interact appropriately with the general public, get along with co-workers or
peers, accept instructions and respond appropriately to criticism from supervisors, respond
appropriately to changes in the work setting, and set realistic goals or make plans independently
of others. ECF No. 10, at 17-19 (citing ECF No. 7-3, Ex. 1A). This argument is without merit.
The responsibility for deciding a claimant=s RFC rests with the ALJ and is based on the
entire record.

20 C.F.R. §§ 404.1545, 404.1546, 416.945, 416.946. State agency physicians

and psychologists such as Dr. Rattan are considered to be “highly qualified physicians and
psychologists who are also experts in Social Security disability evaluation,” and the ALJ must
consider their findings as opinion evidence. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 93 n.2
(3d Cir.2007). The final responsibility for determining a claimant's RFC, however, is reserved to
the Commissioner, who will not give any special significance to the source of another opinion on
this issue. 20 C.F.R. §§ 404.1527(e)(2), (e)(3), 416.927(e)(2), (e)(3).
Here, there is no evidence that the ALJ rejected the limitations noted by Dr. Rattan.
Rather, the ALJ expressly accepted Dr. Rattan’s conclusion that Plaintiff was “able to meet the
basic mental demands of competitive work on a sustained basis despite [those limitations].”
(ECF No. 7-2, at 21; ECF No. 7-3, Ex. 1A); see also ECF No. 7-3, Ex. 1A at 8 (Dr. Rattan further
opining that Plaintiff “can function in production oriented jobs requiring little independent decision
making”). In addition, the RFC incorporates Plaintiff’s credibly established limitations related to
his mental impairments, including: a limitation to unskilled work; a low stress environment such
that there are few changes in work setting and no fast pace or quota production standards; and a

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restriction to occasional contact with coworkers and supervisors and no contact with the general
public. (ECF No. 7-2, at 17-22). To the extent Plaintiff claims additional limitations, the ALJ
pointed to substantial evidence – including the objective medical evidence, treatment records,
Plaintiff’s activities of daily living, and Plaintiff’s own statements – supporting his conclusion that
the record did not support the degree of symptoms alleged. (ECF No. 7-2, at 18-22 and exhibits
cited therein).
Plaintiff’s further argument that the ALJ’s hypothetical question to the vocational expert
was deficient fails for the same reasons set forth above. The substantial evidence cited above
shows that the hypothetical question on which the ALJ relied (ECF No. 44-45) accurately reflected
Plaintiff’s impairments. Furthermore, although the vocational expert stated that Plaintiff would not
be able to perform any work if he would regularly miss work two days per week, due to fatigue,
malaise, psychiatric and psychological symptomology, there was no evidence of record indicating that
Plaintiff would, in fact, regularly miss work for these reasons. Consequently, I find this argument to be
unpersuasive in this regard.

Because the ALJ properly accounted for Plaintiff’s moderate mental limitations in his
hypothetical question to the VE and in formulating his RFC, substantial evidence supports the
RFC finding, and remand on this point is unwarranted.
An appropriate order shall follow.

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

JACOB F. COLOMBIN,

)
)
)
)
)
)
)
)
)
)

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

Civil Action No. 16-311

AMBROSE, Senior District Judge
ORDER OF COURT
AND now, this 19th day of January, 2017, it is ordered that the decision of the ALJ is
affirmed and Plaintiff=s Motion for Summary Judgment (ECF No. 9) is denied and Defendant=s
Motion for Summary Judgment (ECF No. 11) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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