SMITH v. BERRYHILL
Filing
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OPINION and ORDER granting 10 Motion for Summary Judgment; denying 14 Motion for Summary Judgment. It is further ordered that the decision of the Commissioner of Social Security is hereby vacated and the case is remanded for further administrative proceedings consistent with the foregoing opinion. Signed by Judge Donetta W. Ambrose on 6/10/19. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT CHARLES SMITH,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 18-187
AMBROSE, Senior District Judge
OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
14). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11 and 15). After careful
consideration of the submissions of the parties, and based on my Opinion set forth below, I am
granting Plaintiff’s Motion for Summary Judgment (ECF No. 11) and denying Defendant’s Motion
for Summary Judgment. (ECF No. 14).
I.
BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying his application supplemental security income pursuant to the Social Security
Act. Administrative Law Judge (“ALJ”), Karen B. Kostol, held a hearing on August 8, 2016, where
Plaintiff testified. (ECF No. 8-2, pp. 2-35). On August 30, 2016, the ALJ found that Plaintiff was
not disabled under the Act. (ECF No. 8-2, pp. 21-37).
After exhausting all administrative remedies, Plaintiff filed the instant action with this court.
The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 10 and 14). 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.
Residual Functional Capacity (“RFC”) 2
Plaintiff first argues that the ALJ erred in making the RFC determination because she
considered only a portion of Dr. Gordon’s opinion thereby failing to consider the entire opinion of
Dr. Gordon. (ECF No. 11, pp. 14-16). To that end, Plaintiff submits that the ALJ incorrectly wrote
that Dr. Gordon “gave no opinion as to whether the claimant had any exertional or nonexertional
limitations from a physical standpoint (Exhibit C7F).” (ECF No. 11, pp. 14-15). In support of this
assertion, Plaintiff’s points to Dr. Gordon’s Medical Source Statement of Ability to do WorkRelated Activities (Physical). (ECF No. 11, p. 15, citing Exhibit C7F pp. 22-27). Therein, Dr.
Gordon sets forth various opinions regarding Plaintiff’s limitations as to, inter alia,
sitting/standing/walking and environmental limitations and specifically stated that Plaintiff has
“Crohn’s disease – has diarrhea that may disrupt an employment environment.” (ECF No. 8-17,
pp. 45-50). Plaintiff submits that the failure to recognize this portion of the opinion and weigh the
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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
own 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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same (in connection with Plaintiff’s testimony regarding his need to be near a restroom) warrants
remand. (ECF No. 11, pp. 14-16).
A review of the record reveals that the ALJ considered a portion of Dr. Gordon’s records
but did not consider Dr. Gordon’s Medical Source Statement of Ability to do Work-Related
Activities (Physical). (ECF No. 8-2, p. 30). In fact, the ALJ made the statement that Dr. Gordon
gave no opinion as to Plaintiff’s exertional or nonexertional limitations from a physical standpoint.
Id. In response, Defendant acknowledges that this declaration by the ALJ is incorrect. (ECF No.
15, p. 10). As a result, the ALJ failed to weigh the opinion evidence of Dr. Gordon. Defendant,
however, suggests that this error is harmless because “Dr. Gordon’s statement that Plaintiff’s
diarrhea ‘may disrupt an employment environment’ was speculative” and because this opinion
“would have no effect on the ultimate outcome of the case.” (ECF No. 15, pp. 11-12). I am not
persuaded by Defendant’s arguments.
First, Plaintiff did not limit his argument to Dr. Gordon’s opinion that his diarrhea may
disrupt an employment environment. To the contrary, Plaintiff asserts the ALJ failed to consider
and weigh all of the opinions of Dr. Gordon including those related to strength demands and
environmental limitations. (ECF No. 11, pp. 14-16). Furthermore, Defendant’s assertion that Dr.
Gordon’s opinion would have no effect on the ultimate outcome is pure speculation, especially
considering that Dr. Gordon’s opinion involves more than just the one statement regarding
Plaintiff’s diarrhea.
While the ALJ need only discuss the most pertinent, relevant evidence bearing upon a
claimant’s disability status, she must provide sufficient discussion to allow the court to determine
whether any rejection of potentially pertinent, relevant evidence was proper. Johnson v. Comm’r
of SS, 529 F.3d 198, 203-04 (3d Cir. 2008)). “Although the ALJ ‘may properly accept some parts
of the medical evidence and reject other parts ... (s)he must consider all of the evidence and give
some reason for discounting the evidence (s)he rejects.’” See Lanza v. Astrue, No. 08-301, 2009
WL 1147911, at *7 (W.D. Pa. April 28, 2009), quoting Colon v. Barnhart, 424 F.Supp.2d 805, 812
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(E.D. Pa 2006). “’In the absence of such an indication, the reviewing court cannot tell if significant
probative evidence was not credited or simply ignored.’” Burnett v. Comm’r of SS, 220 F.3d 112,
121-22 (3d Cir. 2000), quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
In this case, the ALJ failed to acknowledge or discuss Dr. Gordon’s Medical Source
Statement of Ability to do Work-Related Activities. It is unclear why the ALJ felt Dr. Gordon did
not make such an opinion when it was undisputedly a part of the record. The failure by the ALJ
to acknowledge and discuss this probative and relevant medical evidence prohibits me from
conducting a proper and meaningful review. Therefore, I cannot find that the ALJ’s opinion is
based on substantial evidence. Consequently, I find that the ALJ has erred in this regard and
remand is required. 3
An appropriate order shall follow.
3 Since
I am remanding as set forth above, the other issues raised by Plaintiff will be reevaluated, de
novo, as well. Therefore, I need not consider the details of the arguments at this time.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT CHARLES SMITH,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
-vsNANCY A. BERRYHILL,4
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 18-187
AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 10th day of June, 2019, it is ordered that Plaintiff’s Motion for Summary
Judgment (ECF No. 10) is granted and Defendant’s Motion for Summary Judgment (ECF No. 14)
is denied.
It is further ordered that the decision of the Commissioner of Social Security is hereby
vacated and the case is remanded for further administrative proceedings consistent with the
foregoing opinion.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
4
Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.
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