KOZEMCHAK v. COLVIN

Filing 14

OPINION and ORDER granting 10 Motion for Summary Judgment; denying 12 Motion for Summary Judgment. It is further ordered that the decision of the Commissioner of Social Security is hereby vacated and the case is remanded for further administrative proceedings consistent with the foregoing opinion. Signed by Judge Donetta W. Ambrose on 8/16/17. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LORETTA ANN KOZEMCHAK,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 16-1070

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 granting Plaintiff’s Motion for Summary Judgment (ECF No. 10) and denying 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 her application for supplemental security income (“SSI”)
pursuant to the Social Security Act (AAct@). Plaintiff filed her application alleging she has been
disabled since February 1, 2006. (ECF No. 8-8, p. 4)

Administrative Law Judge (“ALJ”), Natalie

Appetta, held a hearing on September 24, 2014. (ECF No. 8-3). On October 9, 2014, the ALJ
found that Plaintiff was not disabled under the Social Security Act. (ECF No. 8-2, pp. 15-30).
After exhausting all of his administrative remedies thereafter, Plaintiff filed this action.
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

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review decisions to deny a
complainant's application for benefits under the Act. When this court has jurisdiction to review a
decision to deny an application for benefits under the Act, the standard of review 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.

2

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
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.

Weighing Opinion Evidence as it relates to the Residual Functional Capacity

I consider Plaintiff’s argument regarding the weighing of opinion evidence relating to her
residual functional capacity (“RFC”)2 first, as I believe it is a threshold issue. Plaintiff argues that
the ALJ erred in weighing the mental opinion evidence when formulating her RFC such that
remand is warranted. (ECF No. 11, pp. 12-14). After a review of the evidence, I agree.
The amount of weight accorded 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
2

RFC refers to the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a). The assessment must be based upon all of the relevant evidence, including the medical
records, medical source opinions, and the individual’s subjective allegations and description of his own
limitations. 20 C.F.R. § 416.945(a).

3

non-examining source. 20 C.F.R. § 416.927(c)(1). In addition, the ALJ generally will give more
weight to opinions from a treating physician, “since these 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. § 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. § 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 Social Sec. Admin., No. 10-2517, 2010 WL 5078238, at *5 (3d Cir. Dec. 14,
2010). Although the ALJ may choose whom to credit when faced with a conflict, he “cannot reject
evidence for no reason or for the wrong reason.” Diaz v. Comm’r of Soc. Security, 577 F.3d 500,
505 (3d Cir. 2009). Additionally, I note that state agency opinions merit significant consideration.
See SSR 96–6p (“Because State agency medical and psychological consultants ... are experts in
the Social Security disability programs, ... 20 C.F.R. §§ 404.1527(f) and 416.927(f) require [ALJs]

4

... to consider their findings of fact about the nature and severity of an individual's
impairment(s)....”).
In this case, the ALJ gave the opinion of Dr. Groves, an examining psychologist, great
weight with the exception of Dr. Groves’ GAF assessment of Plaintiff. (ECF No. 8-2, p. 26). She
gave the opinion of Dr. Schiller, a reviewing psychologist for the state agency, some weight. Id.
at p. 27. She also gave the opinion of Mr. Muller, Plaintiff’s treating psychologist, great weight
with the exception of Dr. Muller’s GAF assessment of Plaintiff. Id. at pp. 27-28. The ALJ also
pointed out the she gave greater weight to the opinion of Dr. Muller over the opinion of Dr. Groves
“because of her treating history with the claimant and her opinion is more recent in time.” Id. at p.
28.
Dr. Muller found Plaintiff was “seriously limited” in a number of abilities. (ECF No. 8-15,
pp. 3-8. One ability, in particular, involves Plaintiff’s capacity to “complete a normal workday and
workweek without interruptions from psychologically based symptoms.” Id. at p. 5. The form
filled out by Dr. Muller defines “seriously limited” to mean “your patient has noticeable difficulty
(e.g., distracted from job activity) from 11 to 20 percent of the workday or work week.” (ECF No.
8-15, p. 5). Additionally, Dr. Muller opined that, on average, Plaintiff would be absent from work
three days per month. (ECF No. 8-15, p. 7). At the hearing, the ALJ asked the vocational expert
(“VE”) what the impact would be if an individual was off task more than 20% of the work day or if
the individual were absent three or more days per month and the VE stated that all employment
would be precluded. (ECF No. 8-3, p. 37). The ALJ asked the VE about what employers
customarily expect in terms of, inter alia, on task expectations and the VE responded: “Breaks
are typically two 15-minutes (sic) breaks and a 30-minute lunch, and off task no more than 15% of
the day, and for unskilled, entry level work missing no more than one day per month.” Id.
In her decision, the ALJ found that Plaintiff had the RFC to perform light work with
exceptions. (ECF No. 8-2, pp. 21-22).

5

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except this individual is limited to routine, repetitive work that is
considered entry level in a stable work environment where work processes and
location generally stay the same. The individual could have work instructions
provided in written or diagrammatic form, along with short or brief verbal
instructions and up to a 30-day training period. This individual is limited to
decision making using only concrete variables within standardized situations.
She is limited to no production rate pace work, but rather pace is determined by the
work and general production demands are met. She needs to work in a fixed job
site. Further, this individual would require a 15-minute break every two hours.
Moreover, this individual should not work as part of a team, and she should d have
no more than occasional interaction with supervisors.
Id. As can be seen from the RFC set forth above, the ALJ failed to account for Plaintiff being off
task 11-20% of the workday and work week.3 Id. This is a serious limitation opined by Dr.
Muller for which the ALJ gave great weight. Additionally, the ALJ failed to account for Plaintiff
being absent three days per month, also a limitation opined by Dr. Muller. Id. Moreover, the
ALJ never questioned the VE regarding a person being off task 16-20% of the time, a range in
which the Plaintiff falls according to Dr. Muller. (ECF No. 8-15, p. 5).
An ALJ must provide sufficient explanation of his or her final determination to provide a
reviewing court with the benefit of the factual basis underlying the ultimate disability finding. Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). In other words, the ALJ must provide sufficient
discussion to allow the court to determine whether his opinion is based on substantial evidence.
“’In the absence of such an indication, the reviewing court cannot tell if significant probative
evidence was not credited or simply ignored.’” Burnett v. Comm’r of SS, 220 F.3d 112, 121-22
(3d Cir. 2000), quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981); Fargnoli v. Massanari,
247 F.3d 34, 44 (3d Cir. 2001). An ALJ’s findings should be as “comprehensive and analytical as
feasible,” so that the reviewing court may properly exercise its duties under 42 U.S.C. §405(g).
Cotter, 642 F.2d at 705.

3

As noted by the VE, being off task is separate from normal time off for lunch and breaks. (ECF No. 8-3, p. 37).
One does not account for the other.

6

Here, the ALJ fails to articulate why she gave great weight to the opinions of Dr. Muller but
did not account for Dr. Muller’s opinions that Plaintiff is seriously limited in her ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms and
that Plaintiff would be absent three day per month. The ALJ may reject portions of evidence, but
he/she must provide detailed reasons for doing so. Without the same, I am unable to make a
meaningful and proper review to determine if the ALJ’s opinion is based on substantial evidence.
Consequently, remand is warranted on this issue.4
An appropriate order shall follow.

4

Plaintiff raises other issues in her brief regarding the mischaracterization of evidence by the ALJ and the
ALJ’s credibility assessment of Plaintiff. (ECF No. 11). Since I am remanding this case as set forth
above, I need not discuss the same as they will be reviewed again, de novo, on remand.

7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LORETTA ANN KOZEMCHAK,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,5
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 16-1070

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 16th day of August, 2017, it is ordered that Plaintiff=s Motion for
Summary Judgment (ECF No. 10) is granted and Defendant=s Motion for Summary Judgment
(ECF No. 12) is denied.
It is further ordered that the decision of the Commissioner of Social Security is hereby
vacated and the case is remanded for further administrative proceedings consistent with the
foregoing opinion.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

5

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

8