MASTARONE v. COMMISSIONER OF SOCIAL SECURITY

Filing 23

ORDER denying 11 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/8/18. (cha)

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

JOSEPH D. MASTARONE,

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

Civil Action No. 16-1421

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Joseph D. Mastarone (“Mastarone”) brings this action pursuant to 42
U.S.C. § 405(g) and § 1383(c)(3) for review of the ALJ’s decision denying of his claim
for supplemental security income (SSI) and disability insurance benefits (“DIB”) under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-1383f.
Mastarone alleges a disability beginning on March 1, 2009, based upon both physical
and mental impairments. (R. 10) Following a hearing before an ALJ, during which both
Mastarone and a vocational expert (“VE”) testified, the ALJ denied his claims. The ALJ
concluded that Mastarone had the residual functional capacity (“RFC”) to perform light
work with several restrictions. (R. 17) Mastarone appealed. Pending are Cross Motions
for Summary Judgment. See ECF Docket Nos. [11] and [16]. After careful
consideration, the case is affirmed.
Legal Analysis
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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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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.
To be eligible for social security benefits, the claimant must demonstrate that he
cannot engage in substantial gainful activity because of a medically determinable

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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 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).
2. Medical Opinion Evidence
Mastarone takes issue with the ALJ’s assessment of the medical opinions. The
amount of weight accorded to medical opinions is well-established. Generally, the ALJ

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will give more weight to the opinion of a source who has examined the claimant than to
that of a non-examining source. 20 C.F.R. § 416.927(c)(1). Additionally, the ALJ
typically will give more weight to opinions from treating physicians, “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 the reports of individual examinations, such as consultative examinations or
brief hospitalizations.” 20 C.F.R. § 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. If a treating physician’s opinion
is not given controlling weight, the ALJ must consider all relevant factors that tend to
support or contradict any medical opinions of record, including the patient / physician
relationship; the supportability of the opinion; the consistency of the opinion with the
record as a whole; and the specialization of the provider at issue. 20 C.F.R. §
416.927(c)(1)-(6). “[T]he more consistent an opinion is with the record as a whole, the
more weight [the ALJ generally] will give to that opinion.” 20 C.F.R. § 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, non4

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(c)(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 Soc. Sec., 403 Fed. Appx. 679, 686 (3d Cir. 2010).
The ultimate issue of whether an individual is disabled within the meaning of the
Act is for the Commissioner to decide. Thus, the ALJ is not required to afford special
weight to a statement by a medical source that a claimant is “disabled” or “unable to
work.” See 20 C.F.R. § 416.927(d)(1), (3); Dixon v. Comm’r. of Soc. Sec., 183 Fed.
Appx. 248, 251-52 (3d Cir. 2006) (stating, “[o]pinions on disability are not medical
opinions and are not given any special significance.”). 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. Sec., 577 F.3d 500, 505 (3d Cir. 2009).
The 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 any rejection of
potentially pertinent, relevant evidence was proper. Johnson v. Comm’r. of Soc. Sec.,
529 F.3d 198, 203-04 (3d Cir. 2008). “It is not for this Court to reweigh the medical
opinions in the record but rather to determine if there is substantial evidence to support
the ALJ’s weighing of those opinions.” Lilly v. Colvin, Civ. No. 13-1561, 2016 WL
1166334 (D. Del. March 23, 2016), citing, Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190 (3d Cir. 1986).

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After careful consideration, I reject Mastarone’s contention that the ALJ “failed to
evaluate the medical opinion evidence in accordance with the regulations, Agency
policy and Third Circuit precedent.” See ECF docket no. 12, p. 3. A thorough review of
the evidence convinces me that the ALJ adhered to the appropriate standards. He
expressly indicated that he considered the factors in accordance with the requirements
of 20 C.F.R. 404.1527, 404.1529 and 416.927 and 416.929 and SSRs 96-2p, 96-3p, 964p, 96-5p, 96-6p, 96-6p, and 96-7p. (R. 17) Further it is clear that he discussed
Mastarone’s treatment records and the relevant medical opinions, including those
relating to Dr. Goetz, Dr. Muthappan, and Dr. Kennedy. (R. 17-25) Consequently,
contrary to Mastarone’s assertions, the ALJ clearly was aware of and implicitly if not
explicitly noted the length and nature of those relationships as well as the physicians’
particular specialties. (R. 17-25) He also clearly articulated particular reasons for the
weight given to Dr. Goetz’s, Dr. Muthappan’s, and Dr. Kennedy’s opinions. (R. 17-25)
For example, the ALJ explained: that the opinions were inconsistent with the objective
medical findings; they were undermined by the fact that Dr. Goetz “considered the
claimant’s substance dependencies to be in remission as of May 30, 2014, when,
alternatively, the record indicates that the claimant was using Klonopin earlier that
month” (R. 24); that Mastarone had a “completely normal objective exam” with Dr.
Muthappan; and that Dr. Kennedy noted a GAF of 65 and essentially normal exam
findings. (R. 25) These are entirely appropriate and valid reasons for discounting
opinions. See 20 C.F.R. § 404.1527 and § 416.927 (evaluating opinion evidence).
Thus, the ALJ’s decision to accord these opinions reduced weight is well supported by
case law.

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3. Intellectual Disability as Defined in Listing 12.05C
As stated above, at the third step of the sequential analysis, the ALJ is tasked
with determining whether the claimant’s impairment(s) meet or equal the criteria listed in
20 C.F.R. pt. 404, subpt. P, appx. 1. See 20 C.F.R. § 416.920(a)(4)(iii). “If the
impairment is equivalent to a listed impairment, then [the claimant] is per se disabled
and no further analysis is necessary.” Burnett v. Comm’r. of Soc. Sec., 220 F.3d 112,
119 (3d Cir. 2000). Here, Mastarone insists that he meets the definition of Listing 12.05.
Listing 12.05 states, in relevant part:
12.05 Intellectual Disability: intellectual disability refers to significantly
subaverage general intellectual function with deficits in adaptive functioning
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.
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C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R. § 404, subpt. P, app. 1, 12.05 (2015).2
The ALJ rejected Mastarone’s contention that he satisfied 12.05C. The ALJ
found:
As for Listing 12.05 “paragraph B” and “Paragraph C” criteria, they are not met
because the claimant does not have valid verbal, performance, or full scale IQ
scores of 59 or less or scores of 60 through 70. Although the claimant’s
representative argued that the claimant’s IQ is 65 based upon his school records,
this remote score was merely noted on a standard test record sheet from Burrell
Senior High School and was without accompanying documentation to establish
its validity. (Exhibit B10E, B11E). Even if I would accept that distant IQ score, the
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On September 26, 2016, the SSA issued Revised Medical Criteria for Evaluating Mental Disorders, Final Rule,
which amended listing 12.05. 81 Fed. Reg. 66138. The amendment does not impact this case. The Final Rule
provides that “[w]e expect that Federal Courts will review our final decision using the rules that were in effect at the
time we issued the decisions.” Id. at n. 1. The rule set forth above was in effect at the time the ALJ issued his
decision.

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substantial evidence of record fails to indicate that the capsule definition of
Listing 12.05 has been satisfied, namely that the claimant manifested deficits in
adaptive functioning prior to attaining age 22.
(R. 16) (footnote omitted) (emphasis in original). According to Mastarone, the ALJ’s
decision on this issue is erroneous in two respects: (1) the ALJ improperly rejected
Mastarone’s IQ score as “too distant”; and (2) the ALJ erred in finding that Mastarone
failed to meet the “capsule” definition of § 12.05C. Even accepting, for purposes of
argument only, that the ALJ improperly rejected the IQ score, remand is not warranted. I
find that substantial evidence of record supports the ALJ’s conclusion that Mastarone
did not manifest deficits in adaptive functioning prior to attaining age 22.
As an initial matter Mastarone appears to argue that he need not demonstrate
“deficits in adaptive functioning.” He cites to the decision rendered in Markle v. Barnhart,
324 F.3d 182, 187 (3d Cir. 2003) for the proposition that a claimant need only
demonstrate an IQ of 60 through 70; a physical or mental impairment imposing
additional and significant work-related limitations of function; and that such deficits
manifested prior to the age of 22. See ECF docket no. 12, p. 17. According to
Mastarone, no additional requirements for meeting Listing 12.05C have ever been
imposed by the Third Circuit Court of Appeals.3 He does not address the substantial
case law, including Third Circuit decisions, which seem to require proof of deficits in
adaptive functioning. In Gist v. Barnhart, 67 Fed. Appx. 78 (3d Cir. 2003) the Third
Circuit court held that “[a]s is true in regard to any 12.05 listing, before demonstrating
Mastarone cites to Illig v. Comm’r. of Soc. Sec., Civ. No. 13-4596, 570 Fed. Appx. 262, n. 8 (3d Cir. 2014) for the
proposition that the Court reiterated the Markle analysis. Yet the Third Circuit Court specifically stated “[t]he parties
dispute whether a claimant must also meet a fourth requirement – showing deficits in adaptive functioning – in order
to meet or equal Listing 12.05C. But we need not reach this issue because the ALJ erred in determining that Illig
failed to meet the IQ requirement for Listing 12.05C and made no findings on whether Illig demonstrated deficits in
adaptive functioning.” Id. at 265, n. 8. Consequently, I do not find the citation to the Illig decision to be persuasive.
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the specific requirements of Listing 12.05C, a claimant must show proof of a ‘deficit in
adaptive functioning’ with initial onset prior to age 22.” Gist, 67 Fed. Appx. at 81. I reject
Mastarone’s argument and follow the well-settled law in this Circuit that a claimant must
show proof of deficits in adaptive functioning with initial onset prior to the age of 22. See
Lansdowne v. Astrue, Civ. No. 11-487, 2012 WL 4069363 at * 4 n. 4 (W.D. Pa. Sept.
17, 2012) (stating that “[a]lthough not specifically mentioning the need to establish
‘deficits in adaptive functioning,’ Markle did expressly hold that a claimant must show
‘mental retardation’ manifested before age 22, and Listing 12.05 explicitly states that
‘mental retardation refers to significantly subaverage general intellectual functioning with
deficits in adaptive functioning.’ Accordingly … Markle is wholly consistent with the
subsequent decisions in Gist … as well as with the clear and unequivocal
pronouncement made in the explanatory notes to the mental disorder listings in
12.00A.”); Demacio v. Comm’r. of Soc. Sec., Civ. No. 12-1313, 2014 WL 1278086 at *
12 (W.D. Pa. March 27, 2014) (stating that “the Court finds that it is now well settled in
this Circuit that the third prong of the Markle test requires a claimant to show “’deficits in
adaptive functioning’ with an onset prior to the age of 22” in addition to an IQ score with
one of the required ranges of severity.”); Cruz v. Colvin, Civ. No. 15-1639, 2016 WL
1091347 at * 10 (D. N.J. March 21, 2016) (stating that “before turning to the specific
requirements of Listing 12.05C .. .the plaintiff must demonstrate deficits in adaptive
functioning prior to age 22”) (internal quotation marks omitted); Davis v. Colvin, Civ. No.
16-112, 2017 WL 1198381 at * 6 (W.D. Pa. March 30, 2017); and Rhome v.Colvin, Civ.
No. 15-754, 2016 WL 4735573 at *4 n. 8 (W.D. Pa. Sept. 9. 2016).

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As recognized in Logan v. Astrue, 2008 WL 4279820 (W.D. Pa. 2008), the Social
Security regulations do not define “deficits of adaptive functioning” nor do they set forth
standards against which a claimant’s alleged deficits must be measured. The Social
Security regulations do not provide either “a definition of ‘deficits in adaptive functioning’
[or] standard or guidelines by which to assess and measure the existence or severity of
a claimant’s alleged ‘deficits.’” Logan, 2008 WL 4279820 at * 8. Nonetheless, as
explained in Logan, “in order to properly assess a claimant’s alleged mental retardation
to determine if deficits in adapative functioning exist, according to the Social Security
Administration, an ALJ should consult either the APA’s Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), the standard set forth by the AAMR, or the
criteria of the other major mental health organizations.” Id., at * 8. (footnote omitted).
Here, the ALJ consulted the DSM Fifth Addition noting that it describes adaptive
functioning as:
How well a person meets community standards of personal independence and
social responsibility, in comparison to others of a similar age and sociocultural
background. This adaptive functioning assessment requires the evaluation of
three domains: (1) Conceptual, which includes skills in language, reading and
writing, math reasoning, acquiring practical knowledge and problem solving; 2)
Social, which includes empathy, interpersonal communication, social judgment,
and making and keeping friends; and 3) Practical, which includes personal care,
money management, school and work task organization, and meeting job
responsibilities.

(R. 16) Mastarone does not dispute that this is an appropriate methodology for
assessing deficits in adaptive functioning. Rather, he contends that the ALJ “provides
literally no discussion of how he arrived” at the conclusion that Mastarone failed to
satisfy the ‘deficits in adaptive functioning’” test. ECF docket no. 12, p. 19. I disagree.
The ALJ clearly details his reasoning. As to “conceptual” – the ALJ noted that, although
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Mastarone withdrew from school in the 8th grade at the age of 17, there was no
indication that that he required special education support and he “acknowledged the
ability to read and understand English, write more than his name in English, and count
change.” (R. 16) The ALJ further observed that Mastarone’s vocabulary was deemed
“fair.” (R. 16-17) Furthermore, he maintained “skilled work as a mechanic” for five years.
(R. 16) As to “social skills,” the ALJ found that Mastarone demonstrated empathy,
interpersonal communication, and social skills by virtue of his relationships with his
girlfriend and family.” (R. 17) With respect to “practical” considerations, the ALJ noted
that Mastarone was “able to perform a full range of activities of daily living including
caring for his personal needs, preparing simple meals, shopping by phone, watching
television, and utilizing public transportation.” (R. 17) This satisfies the “substantial
evidence” standard. See Harper v. Colvin, Civ. No. 13-446, 2014 WL 1278094 at * 8
(W.D. Pa. March 27, 2014) (affirming the ALJ’s conclusion that the claimant did not
have deficits in adaptive functioning where she completed high school, worked in jobs
requiring some skill prior to the alleged onset date, managed her own finances, drove,
cared for herself, shopped for groceries, and raised two sons); Gibbs v. Comm’r. of Soc.
Sec., Civ., No. 16-16445, 2017 WL 1501082 at * 2-3 (11th Cir. April 27, 2017) (stating
that substantial evidence supports the ALJ’s finding that the claimant does not satisfy
listing 12.05C because she lacks the deficits in adaptive functioning where she lived
alone at times and, with her mother’s help, cared for her daughter, did her own laundry,
cleaned her home, cooked simple meals, had her driver’s license, handled her own
money, was able to shop, and received several passing grades in special education
classes in 9th and 10th grades). Consequently, there is no basis for remand.

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

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

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Civil Action No. 16-1421

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 8th day of February, 2018, it is hereby ORDERED that the
decision of the ALJ is affirmed. It is further ORDERED that Plaintiff’s Motion for
Summary Judgment (Docket No. 11) is DENIED and Defendant’s Motion for Summary
Judgment (Docket No. 16) 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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