KIEFER v. COLVIN

Filing 19

ORDER granting 11 Motion for Summary Judgment; denying 16 Motion for Summary Judgment. This case is remanded for further consideration in accordance with the accompanying Opinion. Signed by Judge Donetta W. Ambrose on 5/12/17. (cha)

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

KRISTI KAE KIEFER,

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

Civil Action No. 16-1089

AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Kristi Kae Kiefer (“Kiefer”) brings this action seeking judicial review of the
ALJ’s decision denying her claim for a period of disability, 2 disability insurance benefits
(“DIB”), and supplemental security income (“SSI”). Kiefer filed an application in October
of 2012 alleging a disability beginning in October of 2006. (R. 15)3 She appeared and
testified at a February 2015 hearing, as did a vocational expert. The ALJ ultimately
denied Kiefer’s claim, finding her capable of medium work with certain restrictions. (R.
19) Kiefer has appealed and challenges the ALJ’s decision in several respects. Pending
are cross motions for summary judgment. See ECF Docket nos. 11 and 16. After careful
consideration, I find that this case must be remanded for further consideration.

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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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Kiefer’s earnings establish that she remained insured through December 31, 2011. (R. 15)
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Kiefer filed a previous application on March 24, 2009 which was denied on June 24, 2009. (R. 15) The Appeals
Court denied Kiefer’s subsequent request for review and the ALJ’s determination was affirmed by this Court on
April 21, 2014. (R. 15)

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Legal Analysis
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. Evaluation of Medical Opinions

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Kiefer faults the ALJ for allegedly failing to evaluate the opinions offered by her
treating physicians and the consultative evaluators in accordance with agency policy
and the relevant case law. Kiefer’s only persuasive argument4 relates to the ALJ’s
reliance upon a submission from Family Psychological Associates. The submission
consists of a two-page document in which the author details the level of restriction
imposed upon various work-related mental activities due to Kiefer’s impairments. (R.
337-338) The ALJ “afforded this opinion significant weight,” finding it to be consistent
with the medical evidence of record and with the mental status examinations. (R. 24) I
agree with Kiefer that the ALJ’s reliance upon this submission was erroneous. 5 The
submission is both unsigned and undated. Indeed, the report itself looks incomplete –
as if there were additional pages which were not attached. “To be considered a medical
opinion, a statement must be from an acceptable medical source as defined by 20
C.F.R. §§ 404.1513(a), 416.913(a) (defining acceptable medical source as licensed
physicians, licensed or certified psychologists, licensed podiatrists, or qualified speechpathologists).” Cantelupe v. Colvin, Civ. No. 15-410, 2015 WL 9598896 at * 12 n. 6
(M.D. Pa. Dec. 17, 2015). See also Felipa v. Astrue, Civ. No. 10-3151, 2011 WL
4529772 at * 4 (E.D. Pa. Aug. 31, 2011) (stating that “it would have been improper” for

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For instance, I reject Kiefer’s contention that the ALJ erred in not finding certain impairments to qualify as
“severe” at the second step of the analysis. I find no error in this regard. The ALJ determined that Kiefer’s substance
abuse, anxiety disorder and liver disease constituted “severe impairments.” (R. 17) As such, the analysis continued
and any alleged error was harmless in nature. See Salles v. Commr. of Soc. Sec., 229 Fed. Appx. 140, 145 n. 2 (3d
Cir. 2007) (stating that, “[b]ecause the ALJ found in Salles’ favor at Step Two, even if he had erroneously
concluded that some of her other impairments were non-severe, any error was harmless.”), citing, Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) and Roberts v. Astrue, Civ. No. 8-625, 2009 WL 3183084 (W.D. Pa.
Sept. 30, 2009). Nor do I find to be persuasive Kiefer’s contention that the ALJ erred in rejecting the opinions set
forth in the Employability Assessment Forms for the Pennsylvania Department of Public Welfare. See ECF Docket
No. 12, p. 11-12. To be clear, the ultimate decision of disability as it relates to social security claims is reserved
solely for the ALJ. 20 C.F.R. §§ 404.1527, 416.927. Thus, the ALJ was not required to give these opinions, in which
the physicians declared Kiefer to be “disabled” for a certain period of time, any weight or special significance.
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Significantly, the Government is silent as to the appropriateness of the ALJ’s reliance on the Family Psychological
Associates’ documents.

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the ALJ to rely on an unsigned and undated medical source statement), citing, Young v.
Heckler, Civ. No. 84-753, 1985 WL 2834, * 2 (E.D. Pa. 1985) (stating that “[i]t is
impermissible for the ALJ to attribute any weight to a s[c]rawled signature on the printed
form of an unidentified physician who does not state any reason for his opinion ….
Where the qualifications of a physician do not appear of record, his opinion should not
be considered.”) and Cannon v. Heckler, 627 F. Supp. 1370, 1375 (D. N.J. 1986)
(stating, “[s]ince the signature is illegible and the name and qualifications of the
physician unknown, the form should have been given no weight”). See also Foust v.
Astrue, Civ. No. 8-11, 2009 WL 1854526 at * 8 (N.D. Ind. June 26, 2009) As in
Cantelupe, here, there is no way to authenticate whether the report in question was
made by an acceptable medical source. As such, the ALJ erred in relying upon it.
Further, I cannot conclude that the ALJ’s reliance upon the report is harmless
error, nor does the Government contend as much. The ALJ gave the report “significant
weight.” The only other report relating to Kiefer’s mental impairment which the ALJ
accepted as persuasive was the opinion proffered by Valerie Rings, Psy.D. The ALJ
accorded Rings’ opinion “significant weight.” (R. 24) It is not clear, however, from the
record whether the opinion evidence provided by Rings, standing alone, would have
convinced the ALJ to deny benefits. Consequently, the case is remanded for further
consideration. On remand, the ALJ is directed to reconsider his decision without
reliance upon the Family Psychological Associates’ report.

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

KRISTI KAE KIEFER,

)
)
)
)
)
)
)
)
)
)
)

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

Civil Action No. 16-1089

AMBROSE, Senior District Judge.

ORDER OF COURT
Therefore, this 12th day of May, 2017, it is hereby ORDERED that Plaintiff’s
Motion for Summary Judgment (Docket no. 11) is granted and Defendant’s Motion for
Summary Judgment (Docket no. 16) is denied. It is further ORDERED that this action is
REMANDED for further consideration in accordance with the accompanying Opinion.
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.

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