POKORNY v. COLVIN
Filing
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OPINION and ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 6/1/17. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JARRETT POKORNY,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 16-493
AMBROSE, Senior District Judge
OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
12). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11 and 13). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 10) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 12).
I.
BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security (ACommissioner@) denying his applications for supplemental security income and
disability insurance benefits pursuant to the Social Security Act (AAct@).
applications alleging disability began on March 16, 2012.
Plaintiff filed his
(ECF No. 6-6, pp. 2, 4).
Administrative Law Judge (“ALJ”), Leslie Perry-Dowdell, held a hearing on February 13, 2014.
(ECF No. 6-2, pp. 36-65). On August 18, 2014, the ALJ found that Plaintiff was not disabled
under the Act. (ECF No. 6-2, pp. 16-30).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 10 and 12).
The issues are now ripe for review.
1
Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.
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). The 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., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments
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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. 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.
Supplemental Hearing
Plaintiff first argues that the ALJ erred by failing to grant a supplemental hearing. (ECF
No. 11, pp. 8-9). Plaintiff suggests that the ALJ “promised” to provide a supplemental hearing to
cross-examine the consultative examiner, Dr. Eberle.2
Id.
After a review of the record, I
disagree.
At the hearing, the following exchange occurred between the ALJ and counsel:
ATTY: …As you can see, I just became involved in this case less than three
weeks ago. And we would ask for a continuance of this matter so that we
can update the records.
I see a consultative exam in there from Dr. Eberly (phonetic), which
seems to be at odds with some of the evidence which I believe to be out
there. And I may even want to cross-examine Dr. Eberly because he
seems to be at such odds, but I can’t do that until I have the opportunity
to get the other information.
ALJ:
Well, Mr. Cinco, the problem in this case is that this case is aged. This
claimant’s been out there since May, of 2012, waiting for a hearing. So
we want to go forward with the hearing. If you need a supplemental
hearing, we’ll be glad to do that once—
2
Throughout the record, the consultative examiner’s name has been spelled as both Eberly and Eberle.
The correct spelling is Eberle. (ECF No. 6-13, p. 50).
3
ATTY: Thank you, Judge.
ALJ:
you get the additional medical that you require.
*
ALJ:
*
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Counselor?
ATTY: Just, just one or two, but, again, I’m not going to be able to ask him a
complete set of hypotheticals because I don’t have access to these
updated records. And, particularly, I’m looking at the stuff from Dr. Kang,
which may be important in framing a question.
ALJ:
*
*
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Okay. That concludes the hearing for today. We’ll keep the record open
for 30 days. If additional time is needed, let us know. And at that time,
we’ll decide if, in fact, we need a supplemental hearing.
(ECF No. 6-2, pp. 39-40, 62, 64).
Thus, contrary to Plaintiff’s assertion, a “promise” to hold a
supplemental hearing was never made.
After the hearing, Plaintiff’s counsel requested three extensions to keep the record open
such that he could submit additional records into evidence. (ECF No. 6-8, pp. 17, 19 and 25).
Additionally, in the April 3, 2014, letter requesting to keep the record open, Plaintiff’s counsel
specifically requested that the ALJ schedule a supplemental hearing for him to cross-examine
Dr. Eberle. (ECF No. 6-8, p. 25). While the ALJ accepted the additional evidence submitted by
Plaintiff’s counsel, a supplemental hearing was never scheduled.
The ALJ specifically
addressed counsel’s request in her decision:
The claimant’s representative requested a supplemental hearing to allow crossexamination of Dr. Eberly, the consultative examiner (Hearing Testimony, Exhibit
18E). The undersigned denies this request because Dr. Eberly’s report and
opinion is given no weight. Dr. Eberly found that the claimant’s presentation
was completely within normal limits and showed no difficulties in memory, focus
or attention. He then related all of the claimant’s problems to substance abuse
and provided an opinion and GAF score supporting only slight limitations (Exhibit
10F). The undersigned gives his opinion little weight, as it is inconsistent with the
neuropsychiatric evaluations, the claimant’s post-concussive syndrome and the
mental health evidence of record. Furthermore, the record does not support a
finding that the claimant’s limitations are solely based on drugs and alcohol as
aside from substance abuse being the cause of his motorcycle accident and
January of 2012, hospitalization, the mental health records do not focus on his
polysubstance abuse. In addition, the claimant went to opiate rehabilitation to
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stop using Methadone and reported being clean from all drug and alcohol for one
year (Hearing Testimony, Exhibit 1F/8, 23, 3F/10, 11, 12, 4F/22, 5F/8,9, 6F7, 8,
12F/4,5,7,8, 13F/2/3, 16F/1,3,4,5,8,9, 19F/3,4,9,10,11,18,19,24,28,31).
(ECF No. 6-2, p. 26).
Based on the above, I find that the ALJ did not err in failing to hold a supplemental
hearing to cross-examine Dr. Eberle. The ALJ gave Dr. Eberle’s opinion no or little weight.
(ECF No. 6-2, p. 26). In essence, the ALJ rejected Dr. Eberle’s opinion with great specificity.
Therefore, it would have been a complete waste of judicial resources to order a supplemental
hearing to cross-examine Dr. Eberle. Furthermore, Plaintiff has failed to proffer the questions
he wanted to ask Dr. Eberle that would have changed the ALJ’s opinion. Clearly, Dr. Eberle’s
opinion is not in any way favorable, to Plaintiff. Under these circumstances, I am at a complete
loss as to what questions of Dr. Eberle would have been beneficial to Plaintiff’s case.3 Thus, I
find remand is not warranted on this basis.
C.
Little vs. No Weight
Plaintiff’s next argument is that the ALJ failed to explain the weight given to Dr. Eberle’s
report. (ECF No. 11, pp. 10-11).
Plaintiff suggests that the ALJ’s opinion is “incapable of
review” because at one point she gives Dr. Eberle’s opinion no weight and a few sentences later
she gives the opinion little weight. Id. at p. 10. To that end, Plaintiff requests that the case be
remanded with specific instructions for the ALJ to provide “a clear and reasonable explanation
capable of review as to how much weight” she gave Dr. Eberle’s opinion. Id. at 10. While it is
true that when describing the weight the ALJ gave Dr. Eberle’s opinion the ALJ used the terms
“no weight” and “little weight,” there is no doubt that the ALJ was rejecting Dr. Eberle’s opinion.
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In his brief, Plaintiff seems to imply that he wanted a supplemental hearing to cross-examine other
experts. (ECF No. 11, p. 9). To be clear, that was not the specific request before the ALJ. The formal
request of the ALJ, after a review of all of the medical evidence by counsel, was to have a supplemental
hearing to cross-examine Dr. Eberle only. (ECF No. 6-8, p. 25). After his careful review, Plaintiff did not
ask that a supplemental hearing be held for any other reason, which he could have done. Id. As a result,
I find that the ALJ did not err in failing to order a supplemental hearing for unknown reasons to her.
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The claimant’s representative requested a supplemental hearing to allow crossexamination of Dr. Eberly, the consultative examiner (Hearing Testimony, Exhibit
18E). The undersigned denies this request because Dr. Eberly’s report and
opinion is given no weight. Dr. Eberly found that the claimant’s presentation
was completely within normal limits and showed no difficulties in memory, focus
or attention. He then related all of the claimant’s problems to substance abuse
and provided an opinion and GAF score supporting only slight limitations (Exhibit
10F). The undersigned gives his opinion little weight, as it is inconsistent with the
neuropsychiatric evaluations, the claimant’s post-concussive syndrome and the
mental health evidence of record. Furthermore, the record does not support a
finding that the claimant’s limitations are solely based on drugs and alcohol as
aside from substance abuse being the cause of his motorcycle accident and
January of 2012, hospitalization, the mental health records do not focus on his
polysubstance abuse. In addition, the claimant went to opiate rehabilitation to
stop using Methadone and reported being clean from all drug and alcohol for one
year (Hearing Testimony, Exhibit 1F/8, 23, 3F/10, 11, 12, 4F/22, 5F/8,9, 6F7, 8,
12F/4,5,7,8, 13F/2/3, 16F/1,3,4,5,8,9, 19F/3,4,9,10,11,18,19,24,28,31).
(ECF No. 6-2, p. 26). As set forth above, the reasons given by the ALJ in weighing the opinion
of Dr. Eberle were appropriate and sufficiently explained with specificity. (ECF No. 6-2, p. 26);
20 C.F.R. §§ 416.927, 404.1527 (discussing the evaluation of medical opinions). Thus, I find
that I am able to make a meaningful and proper review.
After a review of the same, I find the opinion to give Dr. Eberle’s opinion little or no
weight to be supported by substantial evidence of record. Thus, I find no error in this regard on
the part of the ALJ in rejecting the opinion of Dr. Eberle. Contrary to Plaintiff’s position, remand
for a distinction between little and no weight would be an exercise in futility since Dr. Eberle’s
opinion is in no way beneficial to Plaintiff, as is plainly set forth above by the ALJ.
(ECF No. 6-
2, p. 26). Consequently, remand is not warranted on this basis.
D.
Severe Impairment
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). 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). 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).
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In this case, Plaintiff argues that the ALJ erred in failing to find his left hand tendon
adhesions and left MCP joint contractures to be severe. (ECF No. 11, pp. 12-13). Although the
ALJ did not find these impairments to be severe, the ALJ found that Plaintiff has the following
severe impairments: status post open deduction internal fixation of the right distal clavicle,
status post open reduction and internal fixation of the left ankle, history of fractures of the right
cuboid and C7, post concussive syndrome, depression, anxiety and polysubstance abuse.
(ECF No. 6-2, p. 18). So, the ALJ proceeded to the next steps. (ECF No. 6-2, p. 19). Thus,
Plaintiff was not denied benefits at step 2.
The ALJ proceeded beyond step 2. (ECF No. 6-2, pp. 19-30). In so doing, the ALJ
acknowledged that in making the residual functional capacity (“RFC”) determination she
considered all impairments, severe and non-severe. (ECF No. 6-2, p. 22). Consequently, the
ALJ proceeded to consider the Plaintiff’s severe and non-severe impairments in the evaluation
process and in determining Plaintiff’s RCF. (ECF No. 6-2, pp. 21-28). Therefore, I find any
purported error was harmless such that a remand on this basis is not warranted. Salles v.
Commissioner of Social Sec., 229 Fed.Appx. 140, 144-145, n. 2, 2007 WL 1827129 (3d Cir.
2007); Sheeler v. Astrue, No. 08-64J, 2009 WL 789892, 4 -5 (W.D.Pa. March 24, 2009); Hanke
v. Astrue, No. 12-2364, 2012 WL 6644201, *4 (7th Cir. Dec. 21, 2012).
E.
Assessment of the Evidence
Plaintiff’s final argument is that the ALJ ignored medical records and substituted her own
lay opinion for that of the medical opinions. (ECF No. 11, pp. 14-15). In support thereof,
Plaintiff suggests that the ALJ “inappropriately selected only those portions of the questioning to
support her decision while disregarding other critical evidence.” Id. at p. 15. After a review of
the evidence, I disagree.
To begin with, the ALJ specifically stated in her decision that she considered “all of the
evidence” in making her determination and she “considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective medical
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evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and
SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance
with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 063p.” (ECF No. 6-2, pp. 16, 22). Contrary to Plaintiff’s position, I find that the ALJ appropriately
discussed all portions of the record while weighing the evidence. 20 C.F.R. '404.1527 and
§416.927. “There is no requirement that the ALJ discuss in its opinion every tidbit of evidence
included in the record” or that the evidence under each step be discussed in a particular order.
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Hur v. Barnhart, 94 Fed. Appx. 130, *2
(3d Cir. April 16, 2004). I am able to sufficiently discern the basis for the ALJ’s opinion and find
that it is based on substantial evidence. Consequently, I find no error in this regard.
To the extent that Plaintiff is arguing that the ALJ erred in assessing Plaintiff’s credibility,
after a review of the evidence, I disagree. In evaluating whether a plaintiff’s statements are
credible, the ALJ will consider evidence from treating, examining and consulting physicians,
observations from agency employees, and other factors such as the claimant's daily activities,
descriptions of the pain, precipitating and aggravating factors, type, dosage, effectiveness, and
side effects of medications, treatment other than medication, and other measures used to
relieve the pain. 20 C.F.R. '404.1529(c); SSR 96-7p. The ALJ will also look at inconsistencies
between the claimant's statements and the evidence presented. Id. I must defer to the ALJ=s
credibility determinations, unless they are not supported by substantial evidence.
Smith v.
Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir.
1974), cert. denied, 420 U.S. 931 (1975).
In this case, the ALJ followed the proper method to determine the Plaintiff’s credibility.
As laid out in his decision, the ALJ considered the factors set forth above. (ECF No. 6-2, pp.
16-30).
For example, while assessing Plaintiff=s credibility, the ALJ compared the medical
evidence and other evidence of record to his complaints and found them to be contradictory. Id.
at p. 25. Thus, I find the ALJ properly evaluated Plaintiff's credibility as required by 20 C.F.R.
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'404.1529 and SSR 96-7p. Furthermore, based on the entire record as a whole, I find there is
substantial evidence to support the ALJ=s decision to find Plaintiff not entirely credible. (ECF
No. 6-2, pp. 16-30). Therefore, to the extent Plaintiff is making a credibility argument, I find no
error in this regard. Consequently, remand is not warranted on this basis.
An appropriate order shall follow.
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IN IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JARRETT POKORNY,
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Plaintiff,
-vsNANCY A. BERRYHILL,4
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 16-493
AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 1st day of June, 2017, it is ordered that Plaintiff=s Motion for Summary
Judgment (Docket No. 10) is denied and Defendant=s Motion for Summary Judgment (Docket
No. 12) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.
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