OATES v. COLVIN

Filing 16

OPINION and ORDER denying 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 11/30/2017. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARREN JAMES OATES,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 16-1201

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 12 and
14). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 13 and 15). 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. 12) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 14).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security denying his applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) pursuant to the Social Security Act.

Plaintiff filed his applications

alleging disability since March 6, 2012. (ECF No. 8-10, pp. 2, 9). Administrative Law Judge
(“ALJ”), Daniel F. Cusick, held a hearing on September 26, 2014. (ECF No. 8-6, pp. 2-52). On
October 21, 2014, the ALJ found that Plaintiff was not disabled under the Act. (ECF No. 8-5,
pp. 38-47).

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

After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 12 and 14).
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 “more 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,

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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.

Severe Impairment

Plaintiff argues that the ALJ erred in failing to find his HIV and his osteoarthritis to be
severe. (ECF No. 13, pp. 7-8). 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).
In this case, the ALJ found that Plaintiff has the following severe impairment: below the
knee amputation with prosthesis. (ECF No. 8-5, p. 40). So, the ALJ proceeded to the next
steps. (ECF No. 8-5, p. 41). Thus, Plaintiff was not denied benefits at step 2. Rather, the ALJ
proceeded beyond step 2.

In so doing, the ALJ acknowledged that in making the RFC

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determination he considered all impairments, including any impairment that is not severe. (ECF
No. 7-2, p. 23). Consequently, the ALJ proceeded to consider the Plaintiff’s severe and nonsevere impairments in the evaluation process and in determining Plaintiff’s RCF. (ECF No. 8-5,
pp. 41-47). 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).
C.

Weighing of Treating Physician’s Opinion

Plaintiff next argues that the ALJ erred by improperly disregarding the medical opinion of
Plaintiff’s treating physician, Dr. Gaines.

(ECF No. 13, pp. 9-11).

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 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:

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“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, nonexamining 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).
In this case, the ALJ afforded Dr. Gaines’ May 29, 2014, medical sources statement little
weight because “it is expected that claimant’s disabling problem will not last for 12 months
(Exhibits B-9F and B-14F).” (ECF No. 8-5, p. 45). Plaintiff states that this was incorrect. (ECF
No. 13, pp. 9-11).

In support of this statement, Plaintiff cites to subsequent documents

prepared by Dr. Gaines and Dr. Lane. (ECF No. 13, pp. 9-11). The subsequent documents
prepared by Dr. Gaines and Dr. Lane were prepared after the date of the decision in this case.
The instant review of the ALJ’s decision is not de novo and the ALJ’s findings of fact are
conclusive if supported by substantial evidence. Mathews v. Eldridge, 424 U.S. 319, 339, 96
S.Ct. 893, 905 n. 21 (1976). “[E]vidence that was not before the ALJ cannot be used to argue
that the ALJ's decision was not supported by substantial evidence.” Matthews v. Apfel, 239 F.3d
589, 594 (3d Cir. 2001), citing, Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991). Thus, my
review of the ALJ’s decision is limited to the evidence that was before him. Id.; 42 U.S.C.
§405(g). Therefore, pursuant to Sentence Four of §405(g), when reviewing the ALJ’s decision, I
cannot look at the post-decision evidence that was not first submitted to the ALJ. If, however, a
plaintiff proffers evidence that was not previously presented to the ALJ, then a district court may
remand pursuant to Sentence Six of 42 U.S.C. §405(g), but only when the evidence is new and

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material and supported by a demonstration of good cause for not having submitted the evidence
before the decision of the ALJ.

Matthews v. Apfel, 239 F.3d 589, 591-593 (3d Cir. 2001)

(Sentence Six review), citing, Szubak v. Sec'y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). All
three requirements must be satisfied by a plaintiff to justify remand. Id., citing Szubak, 745 F.2d
at 833. In this case, Plaintiff has not made any such arguments. As a result, I cannot consider
the post-decision evidence pursuant to Sentence Four of §405(g) and I find that Plaintiff has
failed to satisfy any of the requirements for remand under Sentence Six of §405(g). Thus, I find
no merit to this argument.
Additionally, Plaintiff summarily concludes that the ALJ “should have given substantial
weight to the reports of Dr. Gaines and Dr. Lane as they were clearly supported by the other
evidence of record.” (ECF No. 13, p. 11). To be clear, the standard is not whether there is
evidence to establish Plaintiff’s position but, rather, is whether there is substantial evidence to
support the ALJ’s finding. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Thus, this argument
is misplaced.
Finally, Plaintiff closes this section of argument with a sentence that “[t]he reason the
ALJ rejected Dr. Gaines (sic) report is not supported by the complete record.” (ECF No. 13, p.
11). This statement falls woefully short. Plaintiff provides no further argument and does not
address the reason given by the ALJ. Id. Nevertheless, I have reviewed the record as it relates
to Dr. Gaines’ report of May 29, 2014. I find the reason given by the ALJ in weighing Dr.
Gaines’ opinions to be appropriate.

Therefore, I find no error in this regard on the part of the

ALJ. Consequently, remand is not warranted on this basis.

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D.

Residual Functional Capacity (“RFC”) 2

Plaintiff also argues that the ALJ improperly determined his RFC. (ECF No. 13, pp. 1215). In support of this argument, Plaintiff first suggests that the ALJ did not address the pain
and chronic skin breakdown of Plaintiff’s below knee amputation of his right leg as it relates to
his ability to stand and lift weight. (ECF No. 13, p. 112-13). After a review of the evidence, I
disagree. In fact, the ALJ addressed the same throughout his discussion regarding his the RFC
determination.3 (ECF No. 8-5, pp. 41-45). Therefore, I find no merit to this argument.
Plaintiff also argues that there is substantial evidence to support his position that he is
not able to perform the work set forth in the ALJ’s RFC finding. (ECF No. 13, pp. 13-15). Again,
the standard is not whether there is evidence to establish Plaintiff’s position but, rather, is
whether there is substantial evidence to support the ALJ’s finding. Allen v. Bowen, 881 F.2d 37,
39 (3d Cir. 1989).

Thus, the support for Plaintiff’s argument is completely misplaced.

Nonetheless, I have reviewed the evidence of record and, based on the same, I find there is
substantial evidence to support the RFC determination.

See, ECF No. 8-5, pp. 38-47.

Consequently, remand is not warranted on this basis.
Finally, Plaintiff argues in this section that the ALJ erred by failing to “show a rational
basis for discounting Plaintiff’s testimony” related to his subjective complaints of pain. (ECF No.
13, pp. 13-14). 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
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RFC refers to the most a claimant can still do despite his/her 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).
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In support of this argument, Plaintiff again refers to the subsequent documents prepared by Dr. Gaines
and Dr. Lane. (ECF No. 13, p. 13). As discussed previously, I will not consider this post-decision
evidence.

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medications, treatment other than medication, and other measures used to relieve the pain. 20
C.F.R. §§416.929(c), 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).
After a review of the record, I find that 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. 8-5, pp. 38-47). 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. Thus, I find the ALJ properly evaluated Plaintiff's credibility
as required by 20 C.F.R. §§416.929, 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. 8-5, pp. 38-47). Therefore, I find no error in this regard.
Consequently, remand is not warranted on this basis.
E.

Vocational Expert

Plaintiff next submits that the ALJ erred by improperly disregarding vocational expert
testimony and by relying on an incomplete hypothetical question. (ECF No. 13, p. 15). An ALJ
is required to accept only that testimony from the vocational expert which accurately reflects a
plaintiff’s impairments. See, Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Based on my review of the record, there is
substantial evidence that the ALJ’s hypothetical questions accurately reflected Plaintiff’s
impairments. (ECF No. 8-5, pp. 38-47; No. 8-6, pp. 2-52). Consequently, I find no error in this
regard.

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G.

Subsequent Decision

Plaintiff’s final argument is that the ALJ’s decision should be reversed or, in the
alternative, remanded, based on a subsequent application by Plaintiff that resulted in a
determination of disability under the SSA.

(ECF No. 13, pp. 16-23).

The subsequent

determination relates to a different time period and is based on new evidence that was not
before the ALJ. Therefore, Plaintiff is presumably seeking a remand based on Sentence Six of
42 U.S.C. §405(g).
As I stated previously, if a plaintiff proffers evidence that was not previously presented to
the ALJ, then a district court may remand pursuant to Sentence Six of 42 U.S.C. §405(g), but
only when the evidence is new and material and supported by a demonstration of good cause
for not having submitted the evidence before the decision of the ALJ. Matthews v. Apfel, 239
F.3d 589, 591-593 (3d Cir. 2001) (Sentence Six review), citing, Szubak v. Sec'y of HHS, 745
F.2d 831, 833 (3d Cir. 1984). All three requirements must be satisfied by a plaintiff to justify
remand. Id., citing Szubak, 745 F.2d at 833. “An implicit materiality requirement is that the new
evidence relate to the time period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent deterioration of the previously nondisabling condition. Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 833 (3d
Cir. 1984), citing Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982). Simply because a
document is about a plaintiff’s physical/mental condition does not mean it relates to the time
period for which benefits were denied.
In this case, the subsequent SSA decision was based on a completely different and later
time period. Plaintiff does not dispute that. It does not relate back to the period before the
ALJ’s decision. Based on the same, I find that the evidence does not relate to the time period
that was at issue before the ALJ. Thus, the subsequent determination does not meet the
materiality requirement. As a result, I find that Plaintiff has failed to satisfy the requirements for

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remand under Sentence Six of §405(g). Consequently, reversal/remand on this basis is not
warranted.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARREN JAMES OATES,

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Plaintiff,
-vsNANCY A. BERRYHILL,4
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 16-1201

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 30th day of November, 2017, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 12) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 14) 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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