SUBASIC v. COLVIN

Filing 18

OPINION and ORDER denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/15/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH EDWARD SUBASIC,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-129

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 14 and
16). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 15 and 17). 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. 14) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 16).
I.

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

Security denying his applications for supplemental security income and disability insurance
benefits pursuant to the Social Security Act. Plaintiff filed his applications alleging disability
began on May 31, 2013. (ECF No. 7-6, p. 13). Administrative Law Judge (“ALJ”), Kathleen
McDade, held a hearing on April 22, 2015. (ECF No. 7-3). On June 9, 2015, the ALJ found that
Plaintiff was not disabled under the Act. (ECF No. 7-2, pp. 21-35).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 14 and 16).
The issues are now ripe for review.

1

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

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,
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

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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 asserts that the ALJ erred in determining his RFC. (ECF No. 15, pp. 11-15). To
that end, Plaintiff specifically argues that the ALJ erred in “affording ‘limited weight’ to the RFC
assessment of Dr. Shipton, Plaintiff’s treating physician.” (ECF No. 15, p. 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). The opinion of
2 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. §404.1545(a).

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a treating physician need not be viewed uncritically.

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).
Plaintiff submits that the ALJ erred in “outright” rejecting Dr. Shipton’s opinion that he is
disabled. (ECF No. 15, p. 12).

A review of the record reveals that the ALJ gave “little weight”

to Dr. Shipton’s opinion on the ultimate issue of disability. (ECF No. 7-2, p. 33). Such ultimate
questions of disability are reserved solely for the ALJ. 20 C.F.R. §404.1527, 416.927. Thus,
the ALJ was not required to give such opinion any weight.
Plaintiff also argues that the ALJ’s opinion is not based on substantial evidence because
the ALJ “rejected” all opinion evidence. (ECF No. 15, pp. 14-15). It is true that “[r]arely can a
decision be made regarding a claimant’s [RFC] without an assessment from a physician
regarding the functional abilities of the claimant.” Gormont v. Astrue, No. 11-2145, 2013 WL
791455 at *7 (M.D. Pa. Mar. 4, 2013), citing Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986). Such
is not the case here, however. A review of the record reveals that the ALJ “partially adopted”
the opinions of Dr. Shipton and limited Plaintiff to “sedentary work activities with additional
manipulative, postural and environmental limitations [to]…address the claimant’s combined
obesity, degenerative disc disease, and the claimant’s upper extremity peripheral neuropathy,
right greater than left; and lower extremity neuropathy not as severe as his upper extremity
neuropathy.” (ECF No. 7-2, p. 34). Thus, contrary to Plaintiff’s argument, the ALJ did not reject
Dr. Shipton’s opinion entirely. See, ECF No. 15, pp. 11-15 and No. 7-2, pp. 26-34. The ALJ’s
RFC was based on that portion of Dr. Shipton’s opinion that the ALJ accepted.
Furthermore, the ALJ thoroughly went through Dr. Shipton’s opinion and discussed
where it was inconsistent with the record. (ECF No. 7-33, pp. 26-34). For example, the ALJ

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explained how Dr. Shipton’s opinion was inconsistent with other medical evidence, as well as
other non-medical evidence of record. Id. Inconsistency is a valid and acceptable reason for
discounting 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). After a review of the record, I find there is substantial evidence
of record to support the ALJ’s weighing of the opinion of Dr. Shipton. (ECF No. 7-2, pp. 21-35).
Consequently, I find no error in this regard.
C.

Vocational Expert (“VE”)

Plaintiff argues that the ALJ erred in “relying upon the testimony of the VE which was
given in response to a hypothetical question that did not include all limitations of record,” namely
all of the limitations opined by Dr. Shipton. (ECF No. 15, pp. 15). After a review of the record, I
disagree. 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 and analysis above, I find there is substantial evidence that the ALJ’s hypothetical
questions accurately reflected Plaintiff’s impairments. (ECF No. 7-2, pp. 21-35). Thus, I find no
error in this regard. Consequently, remand is not warranted on this basis.
An appropriate order shall follow.

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IN IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH EDWARD SUBASIC,

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)
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Plaintiff,
-vsNANCY A. BERRYHILL,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-129

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 15th day of February, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 14) 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

3

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

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