MCFADDEN v. COLVIN

Filing 12

SOCIAL SECURITY APPEAL ORDER denying 8 Plaintiff's Motion for Summary Judgment; granting 10 Defendant's Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/21/17. (cha)

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

JASON MCFADDEN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,1
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Action No. 16-1007

AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Jason McFadden (“McFadden”) brings this action seeking judicial review
of the ALJ’s decision denying a claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). McFadden filed applications in March of 2013
alleging both physical and mental impairments with an onset date in January of 2012.
(R. 47) He appeared and testified at a December 8, 2014 hearing, as did a vocational
expert. (R. 47) The ALJ denied McFadden’s claim, finding him capable of medium level
work with certain restrictions. (R. 55) McFadden has appealed and challenges the ALJ’s
decision in several respects. Pending are Cross Motions for Summary Judgment.
Docket no. 8 and Docket no. 10. After careful consideration, I find McFadden’s
arguments to be unpersuasive. Consequently, the ALJ’s decision is affirmed.
Legal Analysis

1

Nancy A. Berryhill because acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

1

1. 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). Determining whether substantial evidence exists is “not merely a
quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent
v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of evidence will not
satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict
created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by
other evidence – particularly certain types of evidence (e.g., that offered by treating
physicians).” Id. 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.
2. Credibility

2

McFadden faults the ALJ for violating the applicable regulations by presuming
him to be “less credible simply because he was a drug addict.” See ECF docket no. 9,
p. 9.

McFadden cites to SSR 13-2p which provides guidance in evaluating cases

involving drug addiction and alcoholism (“DAA”). See 13-2p, 3013 WL 621536 (2013).
Yet other than a passing reference to the case law, McFadden’s argument is wholly
undeveloped. Analysis of this issue requires the application of law to fact. McFadden
has fallen short in this regard. Bare conclusory assertions are not enough to merit
consideration. See Pennsylvania v. U.S. Dept. of Health and Human Services, 101 F.3d
939, 945 (3d Cir. 1996) (stating that conclusory assertions are not enough and that
arguments presented in such a fashion are waived).
Nevertheless, even if I was to consider McFadden’s argument on the merits, I
would find that the ALJ’s decision is supported by substantial evidence of record and is
in accordance with the applicable case law and regulations. It is well-established that
the ALJ is charged with the responsibility of determining a claimant’s credibility. Baerga
v. Richardson, 500 F.3d 309, 312 (3d Cir. 1974). “The ALJ’s decision ‘must contain
specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicators gave to the individual’s statements
and the reason for that weight. S.S.R. 96-7p.’” Grissinger v. Colvin, Civ. No. 15-202,
2016 WL 5919937 at * 2 (W.D. Pa. Oct. 11, 2016). Generally an ALJ’s credibility
assessment is entitled to great deference. Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir.
2014); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). Here, the ALJ followed the
appropriate two-step process when assessing pain. First she assessed whether

3

McFadden had “an underlying medically determinable physical or mental impairment(s)
… that could reasonably be expected to produce the claimant’s alleged pain or
underlying symptoms.” (R. 55) Second, she evaluated “the intensity, persistence, and
limiting effects of the claimant’s symptoms to determine the extent to which they limit
the claimant’s ability to do basic work activities.” (R. 55) The ALJ found that although
the impairments could reasonably be expected to produce some of the symptoms he
alleged, “the claimant’s December 2014 hearing testimony and other attributed
assertions of record concerning the intensity, persistence and limiting effects of such
impairment-related symptoms are … found to be only partially credible.” (R. 56) After a
review of the record, I find that the ALJ followed the proper method in assessing
McFadden’s credibility. (R. 55-56) Moreover, I find that the ALJ’s determination is
sufficient such that I can make a proper and meaningful review. Finally, I find that the
ALJ’s opinion is supported by substantial evidence of record. (R. 55-56) Therefore, I find
no error in this regard and remand is not warranted.
3. Step 3 - Listings
McFadden also contends that the ALJ erred at third step of the sequential
analysis. In Step 3 of the analysis set forth above, the ALJ must determine the if the
claimant’s impairment(s) meets or is equal to one of the impairments listed in 20 C.F.R.
Pt. 404, Subpt. P, Appx. 1. Jesurum v. Sec. of Health and Human Serv., 48 F.3d 114,
117 (3d Cir. 1995). According to McFadden, he satisfies the requirements of Listing

4

12.05C and, as such, is disabled. See ECF docket no. 9, p. 11-20.2 Listing 12.05C
provides, in relevant part:
Intellectual disability refers to significantly subaverage general intellectual
function with deficits in adaptive function initially manifested during the
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.
…
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing additional significant work-related limitation or
function. 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 12.05.

20 C.F.R. Pt. 404, Appx. 1, § 12.05.
Here, the ALJ “entirely reject[ed] the contention advanced to the effect that the
claimant has evidenced any condition that fully satisfies any relevant severity criteria of
listing 12.05.” (R. 54) The ALJ acknowledged that intelligence testing done in August of
2010 resulted in a score which merited consideration under 12.05C, but stated that
consideration of the entire record convinced her that McFadden failed to satisfy the
standard. The ALJ explained, “[a]s a high school equivalency graduate, possessed of a
driver’s license and a semi-skilled, full-time work history of more than 16 years, it is
clear that the claimant [has] not evidenced such ‘significantly subaverage intellectual
functioning initially manifested during the developmental period’ as is required by the
threshold language of listing 12.05 in order to warrant further evaluation under any of its
other provisions.” (R. 54) The ALJ’s reliance upon a high school equivalency degree, a
steady job for over 17 years (particularly where testimony of record indicates that
McFadden separated from employment not because of subaverage intellectual
2

A newly promulgated Listing 12.05 became effective in January of 2017 but it does not apply in this instance
because the revisions were not in effect at the time the ALJ issued her decision. See Revised Medical Criteria for
Evaluating Mental Disorders, 81 F.R. 66138-01, 2016 WL 5341732 (Sept. 26, 2016).

5

functioning but because of legal issues), and an expert’s opinion that the claimant was
of “average intelligence”,3 is appropriate and constitutes substantial evidence of record,
particularly given the absence of any evidence demonstrating that McFadden’s
intellectual limitations manifested during the “developmental period.”
McFadden offers very little in opposition to the ALJ’s conclusion in this regard.
McFadden refers to school records, but those records do not reveal an IQ of 60-70 or
placement in special education classes. In fact, they indicate that McFadden achieved
C’s and B’s with regularity. (R. 308-313) McFadden also references Dr. Detore’s mental
evaluation. Certainly Dr. Detore found McFadden to suffer from a learning disorder, but
noted that “[i]t is difficult to ascertain not knowing his premorbid intellectual functioning
but there may be some cognitive diminishment related to the claimant’s current
interferon treatment and the long usage of opiates.” (R. 464) McFadden has not
identified anywhere in the record where Dr. Detore opined that McFadden’s intellectual
limitations manifested “during the developmental period,” as is required under the
threshold language of § 12.05. McFadden’s reliance upon Dr. Groves’ testimony is also
misplaced. Although Dr. Groves assessed McFadden as having an “extremely low” full
scale IQ, she also noted that McFadden denied taking special education classes in
school and that he worked at the same job for 17 years before quitting. (R. 468-473) Dr.
Groves never suggests that McFadden displayed “significant subaverage intellectual
functioning” initially manifested during the developmental period. Further, as the ALJ
noted, Dr. Groves reported that McFadden’s opioid dependence was in “early full
remission.” Yet he tested positive for cocaine and benzodiazepines in March of 2014

3

Dr. Brinkley, a psychiatrist, who treated McFadden estimated McFadden’s intelligence, on repeated occasions, to
be average. (R. 819, 821, 823, 825, 827

6

“despite past drug test failures and related warnings.” (R. 54) Dr. Groves also noted that
McFadden reported during a session that he was unable to work “due to pain and
addiction,” rather than because of “intellectual challenges.”4 Thus, as the ALJ found, Dr.
Groves’ “estimations appear based at least in part upon a questionable presumption of
the claimant’s ongoing abstinence from substance abuse.” (R. 54) In short, McFadden
has not persuaded me that the ALJ’s decision in this regard lacks substantial
evidentiary support or is otherwise erroneous. Accordingly, remand is not appropriate.5

4

Other evidence of record suggests that McFadden was terminated from his job for missing funds. (R. 470)
Because I find that the ALJ did not err with respect to the analysis at Step 3, and because I find no errors with
respect to the ALJ’s credibility assessment, I need not address McFadden’s suggestion that the ALJ failed to
perform a proper DAA analysis.
5

7

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

JASON MCFADDEN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,6
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Civil Action No. 16-1007

AMBROSE, Senior District Judge.

ORDER OF COURT
Therefore, this 21st day of March, 2017, it is hereby ORDERED that Plaintiff’s
Motion for Summary Judgment (Docket no. 8) is denied and Defendant’s Motion for
Summary Judgment (Docket no. 10) is granted.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

6

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017.

8