FLEEGER v. COLVIN

Filing 16

OPINION and ORDER denying 11 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/21/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ADAM LEE FLEEGER,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 16-1844

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 11 and
13). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 12 and 14). 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. 11) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 13).
I.

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

Security denying his applications for child’s insurance benefits and supplemental security
income pursuant to the Social Security Act. Plaintiff filed his applications alleging disability
since January 23, 2007. (ECF No. 7-7, pp. 2, 8, 12 and 21). Administrative Law Judge (“ALJ”),
David F. Brash, held a hearing on October 15, 2014. (ECF No. 7-3). Additional evidence was
obtained after the hearing. On June 8, 2015, the ALJ found that Plaintiff was not disabled under
the Act. (ECF No. 7-2, 14-28).

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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. 11 and 13).
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.

Residual Functional Capacity (“RFC ”) 2

Plaintiff argues that the ALJ improperly determined his RFC.3 (ECF No. 12, pp. 12-19).
Specifically, Plaintiff takes issue with the weighing of the opinion evidence. Id. 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
2RFC

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).
3The

ALJ found that Plaintiff has the RFC to perform medium work but with certain limitations. (ECF No.
7-2, pp. 19-26).

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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). The opinion of a
treating physician need not be viewed uncritically, however.

Rather, only where an 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,” must he give
that opinion controlling weight. Id. “[T]he 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).
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

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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).
Plaintiff first submits that “clearly no substantial evidence indicat[es] that Plaintiff can
perform the physical requirements” of the RFC as it relates to Plaintiff’s eye impairments. (ECF
No. 12, p. 13). To that end, Plaintiff specifically argues that the ALJ erred in giving little weight
to the opinion of his treating eye doctor, Dr. Paul B. Freeman, D.O., while giving great weight to
the opinion of Jeffrey A. Horwitz, M.D, a medical expert. (ECF No. 12, pp. 12-19). After a
review of the record, I disagree.
An ALJ is not required to accept the treating physician’s opinion uncritically. Rather, the
ALJ must weigh all of the evidence of the record as set forth above. In this case, that is exactly
what the ALJ did. (ECF No. 7-2, pp. 14-28). He reviewed in detail all of the evidence and then
properly assigned weight to the opinion evidence.

For example, the ALJ went through the

opinions explaining how Dr. Freeman’s opinions were inconsistent with the longitudinal record
and other non-medical evidence of record and how Dr. Horwitz’s opinion was consistent with the
medical

and

non-medical

evidence

of

record.

(ECF

No.

7-2,

pp.

14-28).

Consistency/inconsistency is a valid and acceptable reason for weighing opinion evidence. See,
20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence). While there may be evidence
that supports the position of Plaintiff, which he points out, the standard of review is not whether
there is evidence to support Plaintiff’s position. The standard is whether there is substantial
evidence to support the ALJ’s finding. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989).
Plaintiff seems to suggests that somehow it was improper for the ALJ to consider and/or
rely on evidence prior to October 23, 2012.

(ECF No. 12, p. 17).

I find no merit to this

suggestion since Plaintiff alleges that his disability began on January 23, 2007. (ECF No. 7-7,
pp. 2, 8, 12 and 21). Therefore, the ALJ was required to consider evidence prior to October 23,
2012. As a result, I find the ALJ properly considered all evidence submitted both prior to and
after October 12, 2012.

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Furthermore, I find there is substantial evidence of record to support the ALJ’s weighing
of said opinion evidence. (ECF No. 7-2, pp. 14-28). Consequently, I find no error in this regard
and remand is not warranted on this basis.4
C.

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 Act.

(ECF No. 12, pp. 19-20).

The subsequent

determination relates to a different time period and is based on evidence that was not before
this ALJ. Therefore, Plaintiff is presumably seeking a remand based on Sentence Six of 42
U.S.C. §405(g).
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

In footnote 5, Plaintiff argues that the “Appeals Council also erred when it ignored the report of Dr.
Paviglianiti dated August 7, 2015….” (ECF No. 12, p. 18, n.5). As discussed, supra, 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).
The ALJ’s decision in this case was dated June 8, 2015. (ECF No. 7-2, p. 28). Therefore, Dr.
Pavigilaniti’s August 7, 2015 post dates the ALJ’s decision. Thus, it cannot serve as a basis for remand
unless 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, as the Appeals Council appropriately pointed out
to Plaintiff. 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.
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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 non-disabling 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
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
ADAM LEE FLEEGER,

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

Civil Action No. 16-1844

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 21st day of February, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 11) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 13) 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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