COGSWELL v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

ORDER denying 12 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 11/5/18. (cha)

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

MARVIN M. COGSWELL,

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Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-1324

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Kenneth Cogswell (“Cogswell”) brings this action pursuant to 42 U.SC. §
405(g) for review of the ALJ’s decision denying his claim for a period of disability,2
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). He
alleges a disability beginning on June 21, 2013. (R. 12)3 Following a hearing before an
ALJ, during which time both Cogswell and a vocational expert (“VE”) testified, the ALJ
denied his claim. Cogswell appealed. Pending are Cross Motions for Summary
Judgment. See ECF docket nos. [12] and [16].
Legal Analysis
1. Standard of Review

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.
2
The ALJ determined that Cogswell meets the insured status requirements of the Social Security Act through
December 31, 2013. (R. 14)
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Cogswell initially alleged that he was unable to work because of disabling conditions beginning on June 2, 2009
but later amended his onset date. (R. 12)

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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). Determining whether substantial evidence exists is
“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.
1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of
evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,
a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence – particularly certain types of evidence (e.g., that
offered by treating physicians).” Id. 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 claimant 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

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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 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).
2. The ALJ’s Analysis
At step one, the ALJ found that Cogswell had not engaged in substantial gainful
activity since March 20, 2014, the onset date. (R. 14)4 At step two, the ALJ concluded

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The ALJ recognized that Cogswell worked after the application but concluded that the work did not rise to the
level of substantial gainful activity. (R. 34)

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that Cogswell has the following severe impairments: bipolar affective disorder, major
depressive disorder, history of attention deficit disorder, impulse control disorder,
possible intermittent explosive disorder, possible (“rule out”) borderline intellectual
functioning, and cannabis dependence in remission. (R. 34)
At step three, the ALJ concluded that Cogswell does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpt. P, Appendix 1. (R. 34-36)
Prior to engaging in step four, the ALJ assessed Cogswell’s residual functional
capacity (“RFC”).5 He found Cogswell able to perform the full range of work at all
exertional levels with certain nonexertional limitations. (R. 36) At step four, the ALJ
determined that Cogswell had no past relevant work. (R. 43)
Finally, at step five, the ALJ found that, considering Cogswell’s age, education,
work experience, and RFC, there are significant numbers of jobs in the national
economy that Cogswell can perform. (R. 20) For instance, the ALJ explained that
Cogswell would be able to perform the requirements of representative occupations such
as janitor, hand packager, and landscaper. (R. 43)
3. Dr. Yeater’s Opinion
Cogswell takes issue with the ALJ’s treatment of Dr. Yeater’s opinion.
Specifically, he contends that the ALJ’s RFC is not supported by substantial evidence of
record because of the alleged lack of an adequate explanation for the weight accorded

“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 / her limitations. 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3). Additionally, a person’s RFC is an administrative finding reserved for the ALJ, not a
medical opinion to be rendered by a doctor. 20 C.F.R. §§ 404.1527, 416.927; 20 C.F.R. §§ 404.1546(c), 416.946(c).
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Yeater’s opinion and failure to explain his reason for rejecting portions of Yeater’s
opinion. After careful consideration of Cogswell’s argument and a thorough review of
the record, I find the ALJ’s treatment of Yeater’s opinion to be supported by substantial
evidence of record. Consequently, there is no basis for remand on this issue.
Cogswell focuses his argument upon the contention that the ALJ simply ignored
sections of Yeater’s opinion concerning the ability to maintain attention and
concentration for extended periods. See ECF Docket No. 13, p. 10-12.6 I disagree. The
ALJ was not required to reference Yeater’s itemized findings regarding moderate
limitations in maintaining attention and concentration for extended periods and / or
working in coordination with or in proximity to others without being distracted by them.
The Medical Residual Functional Capacity Assessment provides:
The questions below help determine the individual’s ability to perform sustained
work activities. However, the actual mental residual functional capacity
assessment is recorded in the narrative discussion(s), which describes how
evidence supports each conclusion.
(R. 113) Yeater’s opinions regarding “moderate limitations” are the “questions”
referenced above. In the space provided for narrative explanation of Cogswell’s
sustained concentration and persistent capacities and / or limitations, Yeater wrote:
The claimant is capable of working within a work schedule and at a consistent
pace. Claimant can make simple decisions. The claimant is able to carry out very
short and simple instructions. The claimant would be able to maintain regular
attendance and be punctual.

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Cogswell devotes no more than two sentences and a quotation from a case, to the additional proposition that the
ALJ failed to give an adequate explanation for giving Yeater’s opinion significant weight. See ECF Docket No. 13,
p. 9. This conclusory argument is undeveloped and I decline to consider it for this reason. Further, the ALJ provides
a thorough discussion of Yeater’s findings, explains that she is a DDS psychological consultant and thus “skilled in
reviewing records and assessing the impairments and limitations that are documented therein,” explains that
Yeater’s mental RFC is consistent with the record as it existed at the time she performed her review and with the
records developed after her examination, and explains that Yeater’s mental RFC is consistent with his own
conclusions. (R. 41)

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(R. 114) Thus, the relevant portion of Yeater’s opinion is the narrative statement which
provides that Cogswell is capable of working within certain parameters.
Case law confirms that the narrative portions of the assessments, rather than the
individual questions, should be the focus of the ALJ’s inquiry. See Wise v. Comm’r. of
Soc. Sec., 626 Fed. Appx. 357, 360 (3d Cir. 2015) (stating, “we have said that ALJs are
not required to give any weight to these fill-in-the blank checklist portions of the RFC
assessments and that their focus instead should be on the narrative portions of the
assessments where the medical experts expound on their opinions.”), citing, Smith v.
Comm’r. of Soc. Sec., 631 F.3d 632, 636 (3d Cir. 2015). See also, Smith v. Colvin, 821
F.3d 1264, 1268 n. 1 (10th Cir. 2016) (stating that “while the questions in Section One
are designed to aid in a doctor’s assessment, it is these narrative discussions … that
represent the Plaintiff’s MRFC.”); Gill v. Berryhill, Civ. No. 17-430, 2018 WL 2107196, *
5 (W.D. N.C. May 7, 2018) (stating that, “the ALJ properly relied on the state agency
psychological consultants’ narrative summaries and incorporated them into the RFC.”);
Selkirk v. Berryhill, Civ. No. 16-2811, 2017 WL 5007156, * 4 (D. Kan. Nov. 2, 2018)
(noting that “’the actual mental residual functional capacity assessment is recorded in
the narrative discussion(s), which describes how evidence supports each conclusion;”);
and Dellafiora v. Colvin, Civ. No. 15-871, 2016 WL 9819855, * 3 (D. N.M. Oct. 27,
2016).
The nonexertional limitations that the ALJ found are consistent with the narrative
espoused by Yeater. Remand is not warranted on this issue.
4. Cogswell’s Credibility

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Cogswell also takes issue with the ALJ’s findings regarding his credibility. It is
well-established that the ALJ is charged with the responsibility of determining a
claimant’s credibility See Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The
ALJ’s decision must “contain specific reasons for the finding on credibility, supported by
the evidence in the case record, and be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reason for that weight.” S.S.R. 96-7p. Ordinarily, an
ALJ’s credibility determination is entitled to great deference. See Zirsnak v. Colvin, 777
F.3d 607, 612 (3d Cir. 2014); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).
An ALJ must follow a two-step process when assessing pain: first, he must
determine whether there is a medical impairment that could reasonably be expected to
produce the plaintiff’s pain or other symptoms; and, second, he must evaluate the
intensity, persistence, and limiting effects of the plaintiff’s symptoms to determine the
extent to which they limit the plaintiff’s functioning. (R. 37) Pain alone, however, does
not establish disability. 20 C.F.R. § 404.1529(a); 416.929(a). Allegations of pain must
be consistent with objective medical evidence and the ALJ must explain the reasons for
rejecting non-medical testimony. Burnett v. Comm’r. of Soc. Sec., 220 F.3d 112, 121
(3d Cir. 2000).
In evaluating whether a plaintiff’s statements are credible, the ALJ will consider
evidence from treating, examining and consulting physicians; observations from agency
employees; and other factors such as the claimant’s daily activities; descriptions of the
pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects
of medications; treatment other than medication; and other measures used to relieve

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the pain. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 96-7p. The ALJ will also look at
inconsistencies between the claimant’s statements and the evidence presented. Id.
Inconsistencies in a claimant’s testimony or daily activities permit an ALJ to conclude
that some or all of the claimant’s testimony about his or her limitations or symptoms is
less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002).
Here, I find that the ALJ followed the correct analysis for assessing credibility. He
set forth the two-step process identified above, assessed the impairments which could
reasonably be expected to produce Cogswell’s pain and then evaluated the intensity,
persistence, and limiting effects of Cogswell’s symptoms to determine the extent to
which they limit Cogswell’s functioning. (R. 37-40) Ultimately, the ALJ stated that
Cogswell’s “medically determinable impairments could reasonably cause symptoms, but
I do not completely accept claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms. They do not demonstrate that claimant could not
engage in sustained work within the parameters of the residual functional capacity
determined herein.” (R. 37)
Additionally, I find the ALJ’s determination is supported by substantial evidence
of record. For instance, the ALJ noted that Cogswell left prior jobs in order to pursue
greater opportunities elsewhere or because of economic layoffs rather than for medical
reasons. (R. 38) Indeed, Cogswell himself indicated that he performed some weeding
and snow shoveling maintenance work for a church but hadn’t worked in several
months because of lack of need. (R. 60) His employment at another company was
terminated after a warning for swearing at a coworker, another for being late and
another for helping a customer when he was not supposed to. (R. 63) Another job was

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terminated after Cogswell was injured on the job. (R. 66-67) Consequently, I find that
substantial evidence supports the ALJ’s conclusion that Cogswell “has not established a
work record that would suggest that he left and remains out of the work force solely for
medical reasons.” (R. 38) Cogswell offers no argument with respect to the ALJ’s
conclusion in this regard.
The ALJ also found that Cogswell functioned well while on medications. (R. 39)
(stating, “[i]n May 2014, claimant told Dr. Napoli that he was doing very well on his
medications, and that he was not having angry outbursts.”) Records from Dr. Napoli
confirm this. (R. 293) Napoli writes, “[h]e is not having any angry outbursts or manic-like
symptoms. He is not depressed. His attention and concentrating ability are fine.” (R.
293) Cogswell himself acknowledged that his concentration was “OK, as long as I am
on my meds.” (R. 304) The ALJ also noted that Dr. McGorrian, who treated Cogswell in
2014, found “no evidence of any medication side effects.” (R. 326) Yet Cogswell takes
issue with the ALJ’s finding regarding side effects, noting that he described sedation as
a side effect to nurse practitioner Last on June 25, 2015. (R. 303) I agree that the record
supports that Cogswell made such a report to Last, but a single report to a nurse
practitioner does not negate the ALJ’s conclusion that Cogswell did not report any side
effects to Dr. McGorrian or Dr. Napoli. Further, it is the ALJ’s duty to weigh conflicting
evidence. See Love v. Astrue, Civ. No. 12-1923, 2014 WL 4915998, * 1 (M.D. Pa. Sept.
30, 2014). Here, substantial evidence supports the ALJ’s conclusion that Cogswell
functioned well while on medication.
Similarly, the ALJ noted that Cogswell’s prescription for Adderall was stopped
when a drug screen tested positive for marijuana. (R. 38) He subsequently presented to

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a psychiatric facility for an assessment related to suicidal ideation and significant
depression. (R. 272) Cogswell’s mood was stabilized through medication and he was
discharged approximately one week later. During the period of hospitalization,
Cogswell’s GAF7 increased from 15-20 upon admission to 50 at discharge. (R. 275) The
ALJ accorded these ratings “only some weight due to the brevity of treatment” but found
them to be “indicative of claimant’s ability to gain significant positive response when
compliant with treatment.” (R. 38) Cogswell faults the ALJ for this conclusion, urging
that it is improper to consider that a person who is stable on medication might be stable
in a work environment. See ECF Docket No. 13, p. 14. Yet considering positive results
from treatment and medication is appropriate. See 20 C.F.R. § 416.929(c)(3)(iv); Seney
v. Comm’r. of Soc. Sec., 585 Fed. Appx. 805, 809 (3d Cir. 2014); Dorio v. Berryhill, Civ.
No. 15-6713, 2017 WL 5623348, * 1 n. 2 (E.D. Pa. Nov. 22, 2017). I find no error with
the ALJ having given weight to evidence indicating that Cogswell improved when
compliant with treatment and medication.
The ALJ also considered Cogswell’s claims of angry outbursts. The ALJ
referenced Cogswell’s testimony that “he has trouble working with other people and
controlling his temper” and that he tends to hit himself “or smash objects due to his
uncontrolled temper.” (R. 36-37) Ultimately, the ALJ concluded that “[t]he claimant’s
testimony regarding ongoing angry outbursts is directly contradicted by probative
medical evidence of record, and I find that the claimant has likely exaggerated this
symptom, at least in part.” (R. 40) In support of his conclusion, the ALJ pointed to Dr.

A Global Assessment of Functioning score “allows a clinician to indicate his judgment of a person’s overall
psychological, social and occupational functioning, in order to assess the person’s mental health illness.” Belfon v.
Berryhill, 2018 WL 4691049, * 4 (M.D. Pa. Sept. 28, 2018)
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Napoli’s statement, approximately one month after discharge from the hospital, that
Cogswell was doing well on medication and “was not having angry outbursts.” (R. 38)8
The ALJ also noted Dr. McGorrian’s observation that Cogswell does not meet the
criteria for intermittent explosive disorder. (R. 40) Cogswell’s activities of daily living also
undercut the claim of angry outbursts. The ALJ observed that “he lives with a friend with
no reported conflict and spends his days playing video games and listening to music –
behavior that does not reflect the fierce rages reported by claimant’s mother and within
his own testimony.” (R. 40) Yet the ALJ did not totally discount reports of angry
outbursts. Indeed, he found “reason to question Dr. Yeater’s … conclusion that the
claimant was able to behave in a socially appropriate way.” (R. 40) Rather, in resolving
the conflicting evidence, the ALJ decided that a job involving only simple, routine tasks
in a non-production oriented environment with no public contact would minimize any
problems that he has in this area. (R. 40) Thus, although he may not have mentioned
every piece of evidence in the record regarding angry outbursts, I find his decision to be
substantially supported by the evidence and well-reasoned.
An appropriate order shall follow.

The ALJ found telling that Napoli set a follow-up appointment four months later which he found to be “strong
circumstantial evidence showing that the mental health provider most familiar with his case saw no need to see the
claimant on a more urgent or frequent basis.” (R. 39) Cogswell objects, citing to case law which questioned the
relevance of infrequent medical visits. Id., citing, Weinberg v. Colvin, 2013 WL 3972651, * 5 (W.D. Pa. July 31,
2013) and Newell v. Comm’r. of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2003). Cogswell’s contentions are not
persuasive. Those cases focus upon the “questioned relevance” of an individual’s failure to seek or pursue regular
medical treatment. In this instance, the ALJ found persuasive Napoli’s observation that Cogswell was doing very
well on his medications, that he was not having angry outbursts, that his attention and concentration were fine, and
that he was no longer depressed. (R. 39) It is the treating physician’s decision to delay a follow up for four months. I
find this to be materially different from an ALJ questioning why a claimant would have infrequent medical visits.
Under the circumstances, the ALJ’s conclusion is fair. Further, Cogswell’s reference to treatment with Last did not
begin until nearly a year following Napoli’s May 2014 appointment and lasted only a short time.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARVIN M. COGSWELL
Plaintiff,
-vsNANCY A. BERRYHILL,9
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-1324

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 5th day of November, 2018, it is hereby ORDERED that the
decision of the ALJ is affirmed. It is further ORDERED that Plaintiff’s Motion for
Summary Judgment (Docket No. 12) 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

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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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