JACKSON v. BERRYHILL

Filing 12

OPINION and ORDER denying 8 Motion for Summary Judgment; granting 10 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 12/27/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DIANNA L. JACKSON,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-1349

AMBROSE, Senior District Judge
OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 8 and
10). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 9 and 11). 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. 8) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 10).
I.

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

Security denying her application for disability insurance benefits pursuant to the Social Security
Act. Plaintiff filed her application alleging she has been disabled since January 19, 2013. (ECF
No. 5-5, p. 8). Administrative Law Judge (“ALJ”), Monica D. Jackson, held a video hearing on
March 21, 2017. (ECF No. 5-2, pp. 28-53). On April 26, 2017, the ALJ found that Plaintiff was
not disabled under the Act. (ECF No. 5-2, pp. 11-19).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 8 and 10). The
issues are now ripe for review.
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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.

Weighing of Opinion Evidence

Plaintiff argues that the ALJ erred in giving little weight to her treating physician, Dr. Orr,
while giving great weight to the opinion of the state agency psychologist consultant. (ECF No.
9, pp, 9-10). 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 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

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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
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 suggests that the ALJ erred in assigning great weight to the state agency
psychologist’s opinion, Dr. Schnepp, because he did not personally examine Plaintiff alleging
that “[t]o grant any more than minimal weight to a non-treating, one-time physician’s opinion
undermines the Claimant’s entire treatment history.”

(ECF No. 9, pp. 9-10).

Additionally,

Plaintiff argues that Dr. Schnepp’s opinion should not have been granted great weight because
he did not review treatment records subsequent to the date of his opinion. (ECF No. 9, p. 9).

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Neither of the reasons is compelling. A treating doctor’s opinion is not automatically entitled to
greater weight over that of a non-examining doctor’s opinion, as Plaintiff suggests.

In

accordance with the Regulations, the ALJ is charged with the responsibility of weighing all of the
medical opinion evidence in determining whom to credit and he must explain his rationale for
doing so. See, 20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence). Additionally, an
ALJ is entitled to rely upon the findings of an evaluator even if there is a lapse of time between
the report and the hearing. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2012)
(“The Social Security regulations impose no limit on how much time may pass between a report
and the ALJ's decision in reliance on it.”). Consequently, I find these suggestions are without
merit.
With regard to the treating physician, Dr. Orr, Plaintiff argues that the ALJ erred in giving
his opinion little weight because the ALJ performed only a cursory review of Dr. Orr’s record.
(ECF No. 9, p. 9).

In accordance with the Regulations, the ALJ is charged with the

responsibility of weighing all of the medical opinion evidence in determining whom to credit and
he must explain his rationale for doing so to allow a reviewing court to conduct a meaningful and
proper review. See, 20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence). As set
forth above, an ALJ is not required to accept a doctor’s opinion uncritically. Rather, the ALJ
must weigh it in relation to all of the evidence of the record. In this case, that is exactly what the
ALJ did. The ALJ gave Dr. Orr’s opinion little weight because it was not consistent with the
medical evidence as a whole explaining that “the claimant attended outpatient counseling
sessions at various times from August 2011 through March 2016, which consistently revealed
generally normal mental status findings with intact judgment, good reliability, logical thought
processes and normal behavior (Exhibits B3F and B6F).” (ECF No. 5-2, p. 17). This is a proper
method of evaluating opinion evidence.

See, 20 C.F.R. §§404.1527; 416.927 (Evaluating

Opinion Evidence). In so doing, the ALJ sufficiently set forth valid and acceptable reasons for
weighing the opinion evidence. See, 20 C.F.R. §§404.1527; 416.927 (Evaluating Opinion

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Evidence). I find I am able to make a meaningful review and further find that basis for the ALJ’s
opinion is supported by substantial evidence. (ECF No. 5-2, pp, 11-19). Consequently, I find
am not persuaded by Plaintiff’s argument in this regard.
D.

Residual Functional Capacity (“RFC”)

Plaintiff next argues that the ALJ erred in assessing her residual functional capacity
(“RFC”).2 (ECF No. 9, p. 10). The RFC determination is a question to be answered by the ALJ
based on all of the evidence of record. 20 C.F.R. §§404.1527, 416.927. Without more, Plaintiff
asserts that ALJ failed to take proper consideration of her non-exertional limitations of
depression, bipolar disorder, ADHD and anxiety. (ECF No. 9, p. 10). Simply because a plaintiff
has an impairment or a diagnosis does not equate to a disability. Rather, a plaintiff must still
show he/she is unable to perform substantial gainful activity. Petition of Sullivan, 904 F.2d 826,
845 (3d Cir. 1990). In this case, the ALJ found that Plaintiff’s depression, bipolar disorder,
ADHD and anxiety to be severe and further found that Plaintiff has the RFC to perform a full
range of work at all exertional levels but with certain nonexertional limitations:
she can understand, remember and carry out simple instructions and make
simple, work-related decisions. The claimant can sustain an ordinary routine
without special supervision. The clamant can work at a consistent pace
throughout the workday, but not at production rate pace where each task must be
completed within a strict time deadline. The claimant can tolerate occasional
interaction with co-workers, supervisor and the general public. The claimant can
perform no work involving shared tasks with co-workers, can tolerate occasional
changes in the work setting, and can maintain attention and concentration for 2hour segments before and after the normal morning, lunch and afternoon breaks.
The claimant can tolerate occasional changes in workstation at the worksite, but
no changes in the location of the worksite.
(ECF No. 5-2, p. 15).

In support of her position that she cannot perform said RFC, Plaintiff

pointed to the opinion of Dr. Orr, which the ALJ rejected, and her testimony.
[The] question is not whether substantial evidence supports Plaintiff’s claims, or
2RFC

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. §416.945(a).

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whether there is evidence that is inconsistent with the ALJ’s finding….
Substantial evidence could support both Plaintiff’s claims and the ALJ’s findings
because substantial evidence is less than a preponderance. Jesurum v. Sec’y of
U.S. Dep’t of Health & Human Services, 48 F.3d 114, 117 (3d Cir. 1995) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971). If substantial evidence
supports the ALJ’s finding, it does not matter if substantial evidence also
supports Plaintiff’s claims. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003).
Weidow v. Colvin, Civ. No. 15-765, 2016 WL 5871164 at *18 (M.D. Pa. Oct. 7, 2016). Thus, the
question before me is whether substantial evidence supports the ALJ’s findings.
Bowen, 881 F.2d 37, 39 (3d Cir. 1989).

Allen v.

Therefore, Plaintiff’s argument in this regard is

misplaced. Nonetheless, after a review of the record, I find there is substantial evidence of
record to support the ALJ’s RFC determination. (ECF No. 5-2, pp.11-19). Thus, I find no error
in this regard.
E.

Activities of Daily Living

Finally, Plaintiff essentially suggests that the ALJ mischaracterized Plaintiff’s activities of
daily living. (ECF No. 9, p. 11). An ALJ is required to consider, inter alia, a plaintiff’s activities
of daily living. 20 C.F.R. §§404.1529, 416.929. In this case, the ALJ noted the following:
Further, despite the claimant’s allegations, she can perform a number of daily
activities. The claimant reported that making her lists helps encourage her to
complete chores such as dusting, cleaning, vacuuming and doing laundry
(Exhibit B4E). The claimant also reported she cares for pets, cares for personal
needs with minimal difficulty, occasionally cooks, shops for groceries with her
husband, counts change and uses a computer to play games/work (Exhibits B4E
and Testimony).
(ECF No. 5-2, p. 17). I do not find this to be a mischaracterization. Id. I further find this
statement to be supported by substantial evidence. Id.
regard.
An appropriate order shall follow.

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Consequently, I find no error in this

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

DIANNA L. JACKSON,

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

Civil Action No. 17-1349

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 27th day of December, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (ECF No. 8) is denied and Defendant’s Motion for Summary Judgment
(ECF No. 10) 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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