BOSKO v. BERRYHILL

Filing 14

ORDER denying 10 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/27/2018. (lwp)

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

WILLIAM ALAN BOSKO,

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) Civil Action No. 17-277
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Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER
AND NOW, this 27th day of March, 2018, upon consideration of the parties’ cross
motions for summary judgment, the Court, upon review of the Acting Commissioner of Social
Security’s final decision, denying Plaintiff’s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., finds that the Acting
Commissioner’s findings are supported by substantial evidence and, accordingly, affirms. See
42 U.S.C.§ 405(g); Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117
(3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom.,
507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also Berry v.
Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the
Commissioner’s decision must be affirmed, as a federal court may neither reweigh the evidence,
nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,
642 F.2d 700, 705 (3d Cir. 1981)).1

Plaintiff argues, in essence, that the Administrative Law Judge (“ALJ”) erred by:
(1) failing to find that Plaintiff’s mental impairments meet the severity of one of the listed
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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”) at Step Three of the
sequential analysis; and (2) improperly evaluating the evidence of record in making his residual
functional capacity (“RFC”) assessment. The Court disagrees and finds that substantial evidence
supports the ALJ’s findings as well as his ultimate determination, based on all the evidence
presented, of Plaintiff’s non-disability.
First, Plaintiff contends—quite cursorily—that the ALJ erred in finding that Plaintiff’s
mental impairments do not meet the severity of Listings 12.02, 12.04, 12.06 and 12.09 at Step
Three of the sequential analysis. Because the ALJ found that Plaintiff has certain severe
impairments, including PTSD, depressive disorder, anxiety disorder and opiate dependence,
Plaintiff does have a condition or conditions that could potentially qualify as a disorder under
one or more of the above-mentioned Listings. (R. 16). The Court notes, however, that the
Listings operate as a regulatory device used to streamline the decision-making process by
identifying claimants whose impairments are so severe that they may be presumed to be
disabled. See 20 C.F.R. § 404.1525(a). Because the Listings define impairments that would
prevent a claimant from performing any gainful activity—not just substantial gainful activity—
the medical criteria contained in the Listings are set at a higher level than the statutory standard
for disability. See Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Thus, a claimant has the
burden of proving a presumptively disabling impairment by presenting medical evidence that
meets all of the criteria of a listed impairment or is equal in severity to all of the criteria for the
most similar listed impairment. See 20 C.F.R. § 404.1526.
In this case, the ALJ explained in his decision that Plaintiff’s mental impairments had
been evaluated under the 12.00 Listings, including 12.02, 12.04, 12.06 and 12.09. (R. 17). Upon
review of the relevant evidence of record, however, the ALJ found that Plaintiff’s “mental
impairments, considered singly and in combination, do not meet or medically equal the criteria”
of these Listings. (R. 17). According to the statute in effect at the time, the required level of
severity for these Listings is met only “when the requirements in both A and B are satisfied, or
when the requirements in C are satisfied.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04 (2016).
Plaintiff does not specify here how he supposedly meets the requirements in paragraph B,
although he states that the ALJ wrongfully concluded that his restrictions were either mild or
moderate in nature. (R. 17-18). As the ALJ explained in his analysis of this issue, in order to
satisfy the paragraph B criteria, Plaintiff’s impairments have to result in at least two of four of
the following limitations: 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. (R. 17). The ALJ
further explained that episodes of decompensation, each of extended duration “means three
episodes in 1 year, or an average of once every 4 months, each lasting for at least 2 weeks.” (R.
17).
The Court notes that the ALJ thoroughly discussed Plaintiff’s symptoms and treatment in
his decision, but he ultimately found that the above-stated requirements were simply not met or
medically equaled. In fact, he clearly addressed evidence relevant to the above elements but
concluded that Plaintiff’s limitations included the following: mild limitation in activities of daily
living; moderate limitation in social functioning; moderate limitation in the area of
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concentration, persistence, or pace; and no episodes of decompensation. (R. 17-18). The ALJ
further found that the evidence failed to establish the presence of the “paragraph C” criteria,
although it does not appear that Plaintiff disagrees with this finding. (R. 18). The ALJ then
properly continued with the rest of his analysis. Thus, after review of the ALJ’s decision, the
Court finds no merit in Plaintiff’s argument that the ALJ erred in failing to find that his
impairments meet the severity of one or more of the Listings.
The Court notes that, to support his contention that the ALJ erred in failing to find that he
meets or exceeds the Listings, Plaintiff states that the ALJ failed to give proper consideration to
certain medical evidence of record and that he improperly evaluated the credibility of Plaintiff’s
statements and the testimony of his wife. Because such types of evidence are more thoroughly
discussed in the ALJ’s RFC assessment, which is the topic of Plaintiff’s second argument, the
Court will address those specific contentions in that context.
Second, Plaintiff argues that the ALJ erred in improperly evaluating the evidence of
record in formulating Plaintiff’s RFC. A claimant’s RFC is the most that a claimant can do
despite his limitations. See 20 C.F.R. § 404.1545(a). The determination of a claimant’s RFC is
solely within the province of the ALJ. See 20 C.F.R. § 404.1527(d)(2). In formulating a
claimant’s RFC, the ALJ must weigh the evidence as a whole, including medical records,
medical source opinions, a claimant’s subjective complaints, and descriptions of his or her own
limitations. See 20 C.F.R. §§ 404.1527, 404.1529, 404.1545. In this case, after reviewing all the
relevant evidence, the ALJ determined that, due to Plaintiff’s various impairments, he is capable
of only sedentary work with quite a few additional limitations. (R. 19). In reaching his
conclusions here regarding Plaintiff’s RFC, the ALJ reviewed and engaged in extensive
discussion of a great deal of evidence, including medical opinions of record, Plaintiff’s treatment
notes, Plaintiff’s testimony and subjective complaints, and the testimony of Plaintiff’s wife.
(R. 19-23)
In support of his argument that the ALJ did not consider properly all the evidence of
record in formulating his RFC, Plaintiff states that the ALJ “did not give proper consideration to
the records reflecting several visits” in which he voiced various complaints. (Doc. No. 11, at
10). Plaintiff provides no citations to the record, however, so it is largely unclear to the Court
what evidence the Plaintiff is contending the ALJ did not adequately address. (Doc. No. 11, at
11).
To the extent Plaintiff makes sufficient reference to specific evidence that the ALJ
allegedly failed to properly address, such claims simply lack merit. For example, Plaintiff points
out that state agency consultative examiner Rebecca Billings, Ph.D. found him to have marked
limitations in the ability to respond appropriately to usual work situations. (Doc. No. 11, at 7-8).
However, the Court notes that the ALJ’s decision contained adequate discussion of Dr. Billings’
opinion, including her finding of marked limitations in this area. (R. 22). Moreover, the ALJ
actually chose to give Dr. Billings’ opinion “great weight” in his formulation of Plaintiff’s RFC,
and he accordingly provided relevant workplace limitations in his RFC. (R. 19, 22). Plaintiff
also claims that the ALJ improperly failed to discuss in his decision a VA record noting that he
had “moderate to severe cognitive impairments limiting ability to participate” in a weight
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management program. (Doc. No. 11, at 8). In fact, the record at issue states in full, “Patient
would NOT benefit from participation in a MOVE/weight management program because of
acute illness or injury, end-stage disease, moderate to severe cognitive impairments limiting
ability to participate, or conditions for which weight loss may be contraindicated.” (R. 823).
The Court emphasizes that the VA record at issue does not indicate which of the listed reasons
applied to Plaintiff, and the ALJ thus had no reason to find this record particularly relevant to his
decision and worthy of discussion. Moreover, the Court notes that an ALJ is not required to
reference every treatment note or every piece of medical evidence, as long as the Court can
discern the basis for the ALJ’s decision. See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202
(3d Cir. 2008); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Knox v. Astrue, 2010 WL
1212561, at *7 (W.D. Pa. Mar. 26, 2010). The Court finds that, in the case at bar, the medical
evidence was adequately addressed, and the basis of the ALJ’s decision was sufficiently
explained.
Next, Plaintiff claims that the ALJ erred in concluding that Plaintiff’s noncompliance
with the recommended mental health treatment undermined the credibility of his statements and
those of his wife. (Doc. No. 11, at 8). In essence, Plaintiff argues that the ALJ erroneously
noted that Plaintiff’s failure to seek mental health treatment undermines the veracity of his
allegations, signaling that his condition is not as limiting as alleged. (R. 22). The Court finds,
however, that the ALJ did in fact properly consider Plaintiff’s subjective complaints along with
the other evidence of record, including his failure to comply with various treatment
recommendations regarding his physical and mental impairments, in evaluating Plaintiff’s
credibility and in formulating his RFC.
In determining whether a claimant is disabled, the ALJ must consider all of a claimant’s
symptoms and the extent to which the symptoms can reasonably be accepted as consistent with
the objective medical evidence. See 20 C.F.R. § 404.1529(a). A claimant’s subjective
complaints of symptoms alone are not sufficient to establish disability. See id. In evaluating a
claimant’s subjective complaints, the ALJ must consider, first, whether the claimant has a
medically determinable impairment that could reasonably be expected to produce the symptoms
he alleges. See 20 C.F.R. § 404.1529(b). Once an impairment is found, the ALJ then must
evaluate the intensity and persistence of the claimant’s symptoms to determine the extent to
which those symptoms limit his ability to work. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii)
(factors relevant to symptoms can include daily activities, medications and medical treatment).
In the ALJ’s decision here, after examining Plaintiff’s daily activities, medical treatment and
subjective complaints in connection with his alleged impairments, along with the testimony of
Plaintiff’s wife, the ALJ ultimately found that such evidence simply did not fully support the
limitations he alleges.
Nevertheless, Plaintiff contends that the ALJ improperly considered evidence of his
noncompliance with medical treatment as being detrimental to his credibility. The Court notes
that SSR 96-7p provides that “persistent attempts” by an individual to obtain relief from
symptoms “may be a strong indication that the symptoms are a source of stress to the individual
and generally lend support to an individual’s allegations of intense and persistent symptoms.”
SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996). The Ruling further specifically states that an
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individual’s statements “may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints, or if the medical reports or records show that the individual is not
following the treatment as prescribed and there are no good reasons for this failure.” Id.
Here, the ALJ carefully considered Plaintiff’s allegations but found them to be “out of
proportion to, and inconsistent with, the evidence of record.” (R. 22). With regard to Plaintiff’s
non-compliance overall, the ALJ noted that the record showed non-compliance with taking his
blood thinners and taking the associated blood tests, as well as long periods of time when he did
not see a neurologist. (R. 22). The ALJ also noted that Plaintiff continued to smoke despite
being given warnings that he should quit, nor would he go to the ER when his wife thought he
was having a stroke. (R. 22). The ALJ acknowledged that Plaintiff had health insurance
problems, but he also noted that he had access to VA medical care. (R. 22). Thus, the ALJ
reasonably found Plaintiff to be either less limited than alleged or uninterested in improving his
condition, undermining the credibility of his allegations regarding the severity of his symptoms.
(R. 22). Moreover, the ALJ specified that despite his alleged mental health limitations, Plaintiff
did not seek specialized care. (R. 22). The ALJ found that if his mental health condition were as
limiting as alleged, Plaintiff would aggressively seek the recommended treatment. (R. 22). The
ALJ further noted that despite Plaintiff’s allegations of significant memory and cognitive
problems, the consultative examiner found no evidence of cognitive limitations. (R. 22). The
ALJ also pointed out that Plaintiff is able to make crafts and attend business shows with his wife,
also indicating greater functional abilities than alleged. (R. 22).
Thus, in assessing Plaintiff’s credibility, the ALJ discussed at great length the evidence of
record, including the objective medical evidence, the opinion evidence, Plaintiff’s activities of
daily living, the testimony of Plaintiff’s wife, and Plaintiff’s own statements in connection with
his alleged impairments, which he explained simply did not substantiate Plaintiff’s extreme
claims of disabling symptoms. Moreover, the ALJ did in fact find that Plaintiff has a number of
severe impairments. (R. 16). However, Plaintiff’s statements were not found to be fully credible
for a number of reasons, including because of the fact that he failed to seek and/or comply with
treatment for his various impairments. The Court further notes that Plaintiff provided no
evidence to show that such failure to seek or comply with treatment was caused by his alleged
mental health limitations, nor did Plaintiff establish that he did not seek treatment because he
lacked health insurance, since he had access to VA care. See 20 C.F.R. § 404.1540 (explaining
that the ALJ will consider information from treatment providers to evaluate a claimant’s
compliance with a treatment plan, as well as treatment providers’ assessments or views on noncompliance with treatment). Therefore, upon substantial review of all the evidence of record, the
ALJ simply found that the evidence as a whole did not support the extreme limitations that
Plaintiff alleges. The Court finds that the ALJ did not err in evaluating Plaintiff’s allegations, as
well as those of Plaintiff’s wife, because he thoroughly reviewed them in accordance with the
regulations, and he provided sufficient explanation as to why he found those allegations to be not
entirely credible.
Finally, Plaintiff contends that the ALJ erred in failing to include limitations in his RFC
regarding his hearing loss and hand tremors/pain. The Court notes, however, that the ALJ is
only required to include limitations in the RFC for credibly established limitations. See 20
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Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 10) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No.
12) is GRANTED.
s/ Alan N. Bloch
United States District Judge
ecf:

Counsel of record

C.F.R. § 404.1545(a) (explaining that the RFC is the most a claimant can do despite his or her
limitations). First, the record contains no proof to establish Plaintiff’s hearing loss. Plaintiff
declined to have an audiology consultation in 2013, and the treatment notes document normal
findings with regard to his hearing. (R. 728, 739, 745, 751, 758, 764, 768, 821). Second, the
record likewise does not establish Plaintiff’s hand tremors/pain as a credibly established
limitation. Although Plaintiff complained of such tremors, his examinations repeatedly failed to
show the presence of tremors or hand abnormalities. (R. 803, 821, 847). Additionally, it is
notable that Plaintiff admittedly enjoys making paracord bracelets, and he reported that he had
begun a craft business with his wife and neighbors. (R. 777, 800).
Thus, the Court does not agree with Plaintiff’s assertion that the ALJ erred in his
consideration of the medical evidence in making his RFC assessment.
Plaintiff makes an additional related argument here that the ALJ’s decision is not
supported by substantial evidence because he relied on an inaccurate hypothetical question to the
vocational expert (“VE”). Plaintiff argues that, because his RFC assessment was not based on
substantial evidence, his hypothetical question to the VE, which was based on that RFC
assessment, is wrong as well. While the hypothetical question to the VE must accurately portray
the claimant’s impairments, such question need only reflect those impairments that are
adequately supported by the record. See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984); Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); see also 20 C.F.R.
§ 404.1545(a)(1). As discussed, supra, the RFC in this case was based on substantial evidence.
Thus, the Court finds that, in making his determination, the ALJ relied upon the response to an
appropriate hypothetical question which included those limitations, properly portrayed in the
RFC, that were supported by the record.
In sum, the Court finds that the ALJ did not err in finding that Plaintiff’s impairments did
not meet the severity of one of the Listings at Step Three of the sequential analysis.
Additionally, the Court finds that the ALJ did not err in considering the evidence of record and
formulating Plaintiff’s RFC. Accordingly, the Court affirms.
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