DEE v. COLVIN

Filing 19

OPINION AND ORDER denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/8/18. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD L. DEE

)
) No. 17-73
)

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

SYNOPSIS
Plaintiff filed an application for social security disability benefits and supplemental
security income, alleging disability due to mental and physical impairments. Plaintiff’s
application was denied initially, and then denied following a hearing before an Administrative
Law Judge (“ALJ”). The Appeals Council denied his request for review. The parties’ CrossMotions for Summary Judgment are before the Court. For the following reasons, Plaintiff’s
Motion will be denied, and Defendant’s granted.

OPINION
I.

STANDARD OF REVIEW
Judicial review of the Commissioner's final decisions on disability claims is provided by

statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3) 7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
district court's role is limited to determining whether the record contains substantial evidence to
support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).

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Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh the evidence of record; the court can only judge the propriety of the decision with
reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer
v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
67 S. Ct. 1575, 91 L. Ed. 1995 (1947).

Otherwise stated, “I may not weigh the evidence or

substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert
opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those
findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011
U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted). Nonetheless, I am not
required to read the ALJ’s opinion “in a vacuum.” Knox v. Astrue, 2010 U.S. Dist. LEXIS
28978, at *22 (W.D. Pa. May 26, 2010).
II.

THE PARTIES’ MOTIONS

Plaintiff assigns three grounds of error: 1) that the ALJ failed to consider certain exhibits in
the record; 2) that the ALJ improperly rejected the opinions of Plaintiff’s treating psychiatrist,
Dr, Streets, and treating counselor, Ashley Lockwood; and 3) that the ALJ failed to properly
consider the Listings.

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A. Exhibits
As to the first of these, Plaintiff points to several exhibits in the record that he asserts the
ALJ left unreviewed. An ALJ is not required to cite to every piece of evidence submitted, and
his failure to cite to a particular piece of evidence does not mean that the evidence was not
considered. Walker v. Astrue, 733 F. Supp. 2d 582, 587 (E.D. Pa. 2010). Here, the ALJ stated
that he considered the entire record; there are no grounds to assume otherwise.
B. Dr. Streets and Ms. Lockwood
Next, Plaintiff challenges the ALJ’s treatment of the opinions of Dr. Streets and Ms.
Lockwood, both treating sources who signed a checkbox questionnaire regarding Plaintiff’s
limitations. Therein, the providers endorsed checkmarks indicating that Plaintiff is “unable to
meet competitive standards” in seventeen different areas of functioning, and “seriously limited
but not precluded” in the remaining eight areas. Plaintiff complains that the ALJ gave the
questionnaire minimal weight, as unsupported by contemporaneous treatment notes, and the
appearance that the form reflected Plaintiff’s subjective symptom reports, which were not
consistent with the treatment notes. Plaintiff further argues that the ALJ improperly drew an
inference from the note on the questionnaire that Plaintiff “has been reasonabl[y] stable over the
past 12 months.” Plaintiff also contends that the ALJ selectively viewed the Lockwood/Streets
records. Also notes that Lockwood Streets notes are supported by other evidence in the record.
I reject Plaintiff’s contentions. The ALJ is entitled to reject a treating source opinion, if
it is not "well-supported by medically acceptable clinical and laboratory diagnostic techniques”
and is “inconsistent with the other substantial evidence in your case record.” 20 C.F.R. §
404.1527(c)(2). The ALJ noted that the severe limitations indicated in the questionnaire were
inconsistent with Dr. Streets’and Ms. Lockwood’s treatment notes, as well as their statement that

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Plaintiff had been reasonably stable for a year. The ALJ did not draw an impermissible
inference from the statement of stability, such as an inference that stability equates to ability to
work; instead, he observed that the statement was inconsistent with the severe limitations opined
to. As for Plaintiff’s argument that the ALJ selectively viewed the medical records, this Court
notes that the ALJ recounted Ms. Lockwood’s reports that Plaintiff suffered anxiety, increased
depression, and other negative symptoms. The ALJ found that overall, the treatment notes
recorded progress and good results with medication; he did not blatantly disregard notes tending
to support disability, and attend only to others. Accordingly, the decision does not reflect
improper “cherry picking.”
C. Listing 12.04
Finally, I address Plaintiff’s contention that the ALJ failed to properly consider Listing
12.04, which addresses affective disorders. In particular, Plaintiff complains that the ALJ, in
determining that Plaintiff did not meet Listing 12.04, relied solely on testimonial evidence, rather
than Plaintiff’s post-hearing memorandum or medical evidence; and misstated the medical
evidence. Plaintiff also contends that the ALJ failed to mention a 2013 hospitalization.
As pertinent here, Listing 12.04 requires medically documented persistence of
depressive, manic, or bipolar syndrome, resulting in at least two of the following: Marked
restriction of activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, App. 1, § 12.04.
If the ALJ misstated Plaintiff’s drug use at the time of the episodes of decompensation, or
dates of hospitalization, the error was harmless. Although the ALJ stated that Plaintiff’s
hospitalizations occurred in 2014 and 2015, he specifically cited to the medical records regarding

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the 2013 hospitalization. He also noted that Plaintiff’s 2015 hospitalization occurred when he
had stopped taking his medications.
Further, the ALJ determined that Plaintiff had only mild or moderate difficulties in daily
living, social functioning, and maintaining concentration, persistence, or pace. Plaintiff does not
challenge these findings. Thus, even if Plaintiff’s decompensation episodes qualified under the
Listing, the requirement that his mental impairments cause at least one marked impairment and
repeated episodes of decompensation remains unsatisfied. In the decision as a whole, the ALJ
sufficiently discusses the medical evidence that pertains to Plaintiff’s mental impairments. I find
no error that warrants remand.
CONCLUSION
In conclusion, the ALJ’s decision was supported by substantial evidence. Plaintiff’s Motion
will be denied, and Defendant’s granted. An appropriate Order follows.

Dated:

2/8/18

BY THE COURT:

________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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

)
) No. 17-73
)

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
ORDER
AND NOW, this 8th day of February, 2018, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion is DENIED, and Defendant’s GRANTED.
BY THE COURT:

___________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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