REID v. COMMISSIONER OF SOCIAL SECURITY

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 10/11/17. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARLA JEAN REID,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 16-1517

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 disability insurance benefits (“DIB”)
pursuant to the Social Security Act (AAct@). Plaintiff filed her application alleging she had been
disabled since May 1, 2013. (ECF No. 8-5, p. 2).

Administrative Law Judge (“ALJ”), Douglas

Cohen, held a hearing on January 22, 2015. (ECF No. 8-2, pp. 17-60). On February 9, 2015,
the ALJ found that Plaintiff was not disabled under the Act prior to May 23, 2014. (ECF No. 8-2,
pp. 65-82).

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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. 10 and 12).
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 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. 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.

Weighing Opinion Evidence as it relates to the Residual Functional
Capacity (“RFC”) 2

I consider Plaintiff’s argument regarding the weighing of opinion evidence as it relates to
her RFC first, as I believe it is a threshold issue. Plaintiff argues that the ALJ erred in the
weighing of the opinion evidence in formulating Plaintiff’s RFC.

(ECF No. 11, pp. 17-19).

Specifically, Plaintiff submits that the ALJ gave significant weight to the opinion of the nonexamining psychiatrist, Dr. Milke, but did not include Dr. Milke’s marked limitation opinion in his
RFC. Id. at p. 17-18. As such, Plaintiff submits that remand is warranted. After a review of the
evidence, I agree.

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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).

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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:
“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). Additionally, I note that state agency opinions merit significant
consideration. See SSR 96–6p (“Because State agency medical and psychological consultants

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... are experts in the Social Security disability programs, ... 20 C.F.R. §§ 404.1527(f) and
416.927(f) require [ALJs] ... to consider their findings of fact about the nature and severity of an
individual's impairment(s)....”).
In this case, the ALJ gave significant weight to the opinion of Dr. Milke, the state agency
psychological consultant. (ECF No. 8-2, p. 77). Dr. Milke opined that Plaintiff had marked
difficulties in maintaining concentration, persistence or pace. (ECF No. 8-3, p. 6). In discussing
Dr. Milke’s opinion, the ALJ recognized Dr. Milke’s opinion that Plaintiff had marked limitations
in her ability to maintain concentration, persistence, or pace. (ECF No. 8-2, p. 77). The ALJ’s
RFC, however, limited Plaintiff to “simple, routine and repetitive tasks that would not be
performed in a fast-paced production environment and involve only simple work-related
decisions and, in general, relatively few workplace changes.” (ECF No. 8-2, pp. 70-71). A
limitation to simple, routine tasks conveys only “moderate” limitations in concentration,
persistence and pace, not marked. Haines v. Astrue, C.A. No. 11-309, 2012 WL 1069987, at *1
n. 1 (W.D. Pa. March 29, 2012). Yet, Dr. Milke opined that Plaintiff had marked limitations in
these areas.

(ECF No. 8-2, p. 77).

Again, this was an opinion for which the ALJ gave

significant weight. (ECF No. 8-2, p. 77).
Certainly, the ALJ is not required to accept Dr. Milke’s opinions at all, much less do so
wholesale. An ALJ, however, 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). To that end, an ALJ must set forth
the reasons for crediting or discrediting relevant or pertinent medical evidence.

Burnett v.

Comm’er of SS, 220 F.3d 112, 121-22 (3d Cir. 2000). “Although the ALJ ‘may properly accept
some parts of the medical evidence and reject other parts ... (s)he must consider all of the
evidence and give some reason for discounting the evidence (s)he rejects.’” See Lanza v.
Astrue, No. 08-301, 2009 WL 1147911, at *7 (W.D. Pa. April 28, 2009), quoting Colon v.
Barnhart, 424 F.Supp.2d 805, 812 (E.D. Pa 2006). “’In the absence of such an indication, the

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reviewing court cannot tell if significant probative evidence was not credited or simply ignored.’”
Burnett, 220 F.3d at 121-122, quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
Without the same, a reviewing court cannot make a proper determination of whether the ALJ’s
decision is based on substantial evidence. Id.
Here, the ALJ failed to articulate why he gave significant weight to the opinion of Dr.
Milke but did not account for his opinion that Plaintiff had marked difficulties in maintaining
concentration, persistence or pace in the RFC. An ALJ may reject portions of evidence, but
he/she must provide detailed reasons for doing so.

The failure to provide an explanation

prohibits me from conducting a proper and meaningful review. Therefore, I find the ALJ erred in
this regard. Consequently, remand is warranted on this issue.3
An appropriate order shall follow.

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Plaintiff raises various other errors on the part of the ALJ. (ECF No. 11, pp. 11-20). Since I am
remanding this case as set forth above, I need not decide whether these alleged issues warrant a remand
as the case will be reviewed again, de novo.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARLA JEAN REID,

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)
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)

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

Civil Action No. 16-1517

AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 11th day of October, 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

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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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