BERGAMASCO v. BERRYHILL

Filing 17

ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 4/30/19. (slh)

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

DONNA JEAN BERGAMASCO,

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

Civil Action No. 18-435

AMBROSE, Senior District Judge

OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 13 and
15). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 14 and 16). 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. 13) and granting Defendant’s
Motion for Summary Judgment. (ECF No. 15).
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying her application for widow’s disability insurance benefits pursuant to the Social
Security Act. Plaintiff filed her application alleging she has been disabled since April 2, 2014.
(ECF No. 9-7, p. 10). Administrative Law Judge (“ALJ”), David F. Brash, held a hearing on
December 8, 2016. (ECF No. 9-3). On February 13, 2017, the ALJ found that Plaintiff was not
disabled under the Social Security Act. (ECF No. 9-2, pp. 19-39).

1Nancy

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

1

After exhausting all administrative remedies thereafter, Plaintiff filed this action. The
parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 13 and 15). The issues are
now ripe for review.

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).

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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
(“RFC”).2 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 improperly rejected her treating physicians’ opinion. (ECF
No. 14, pp. 8-13). 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

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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 own
limitations. 20 C.F.R. § 416.945(a).

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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, however, 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).
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

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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).
In this case, Plaintiff suggests that the ALJ erred in giving little weight to the opinions of
Plaintiff’s treating psychiatrists simply because Plaintiff’s GAF3 scores never changed.4 (ECF
No. 14, p. 10). As a point of clarification, the ALJ gave little weight to the opinion in the Milestones
records expressed as GAF scores, but he did not give little weight to the Milestones records
themselves. (ECF No. 9-2, p. 37). In fact, the ALJ gave great weight to the opinion of Dr.

3GAF

is an acronym which refers to an individual's score on the Global Assessment of Functioning Scale.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. Text
Revision 2000). The scale is used to report the “clinician's judgment of the individual's overall level of
functioning” in light of his psychological, social, and occupational limitations. Id. The GAF ratings range
from 1 to 100. GAF scores are arrived at by a clinician based on his or her assessment of a patient’s selfreporting. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32
(4th ed. Text Revision 2000). GAF scores do not have a direct correlation to the disability requirements
and standards of the Act. See, 65 Fed. Reg. 50746, at 50764-65 (2000). In fact, as of May 18, 2013, the
American Psychiatric Association no longer endorses the GAF scale as a measurement tool. See,
Diagnostic and Statistical Manual of Mental Disorders (DMS-V) (5th ed. 2013). Nonetheless, GAF scores
are still medical opinion evidence that informs a Commissioner's judgment, along with all of the other
evidence of record, in assessing whether an individual is disabled. In any event, “’a GAF score is never
dispositive of an impairment severity,’ and an ALJ should not ‘give controlling weight to a GAF from a
treating source unless it is well supported and not inconsistent with other evidence.’” Hughes v. Comm'r
Soc. Sec., 643 F. App'x 116, 119 n.2 (3d Cir. 2016), citing, SSA AM–13066 at 5 (July 13, 2013).
4Plaintiff

argues that there is medical evidence to support the GAF scores. (ECF No. 14, pp. 9-11).
[The] question is not whether substantial evidence supports Plaintiff’s claims, or 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). Rather, the question
before me is whether substantial evidence supports the ALJ’s findings. Allen v. Bowen, 881 F.2d 37, 39
(3d Cir. 1989). Thus, Plaintiff’s argument in this regard is misplaced.

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Pacella, in part, because it was consistent with the therapy notes and medication management
notes from Milestones. (ECF No. 9-2, p. 37). There is no formulaic outline an ALJ must follow
when weighing GAF scores. Rather, an ALJ must simply weigh the GAF scores and discuss
reasons for the weight sufficiently for this court to conduct a meaningful review. After a review
of the record, I find the ALJ appropriately considered the multiple GAF scores in evidence and
weighed them against the other evidence of record, including the treatment records associated
therewith from Milestones. (ECF No. 9-2, pp. 19-37). The ALJ gave a valid and appropriate
reason for giving them little weight – they were inconsistent with the Milestones records. Id.
Consistency is a valid reason for crediting or discrediting evidence. See, 20 C.F.R. §§416.927,
404.1527 (Evaluating Opinion Evidence). I find I am able to conduct a meaningful review and that
this assessment is supported by substantial evidence.

(ECF No. 9-2, pp. 19-37).

Consequently, I find no error in this regard.5
C.

Plaintiff’s Statements

Plaintiff next argues that the ALJ’s finding that her statements concerning the intensity,
persistence and limiting effects of her symptoms are not entirely consistent with the medical
evidence and other evidence in the record is not supported by substantial evidence. (ECF No.
14, pp. 13-18). In considering the intensity, persistence, and limiting effects of an individual's
symptoms (including pain), the ALJ will examine the entire case record, including the objective
medical evidence; an individual's statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources and other persons;
and any other relevant evidence in the individual's case record. SSR 16-3p.

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Additionally, the

At the end of this argument, Plaintiff suggests the ALJ erred in finding that Plaintiff suffered from the
severe impairment of substance abuse disorder. (ECF No. 14, pp. 11-12). In so doing, Plaintiff
conflates substance abuse disorder with substance induced mood disorder. Id. These are two separate
impairments. See, ECF No. 9-2, p. 22. Based on my review of the record, I find there is substantial
evidence of record to support this finding. (ECF Nos. 9-2, pp. 19-37; 9-11, pp. 33, 35).

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ALJ will consider 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 the pain. 20
C.F.R. §§416.929(c), 404.1529(c); SSR 16-3p. The ALJ will also look at inconsistencies between
the claimant's statements and the evidence presented. Id.

I must defer to the ALJ’s

determinations, unless they are not supported by substantial evidence. Smith v. Califano, 637
F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert.
denied, 420 U.S. 931 (1975).
After a review of the record in this case, I find the ALJ applied the above standard. (ECF
No. 9-2, pp. 19-39). For example, the ALJ considered, inter alia, the types and frequency of
treatment sought by Plaintiff, her medications and her activities of daily living in connection with
all of the other evidence of record. Id. To that end, the ALJ found various inconsistencies. Id.
Consistency with other evidence is a valid reason for discounting opinion evidence. See, 20
C.F.R. §§404.1527; 416.927 (Evaluating Opinion Evidence).
Contrary to Plaintiff’s insinuation otherwise, an ALJ is required to consider, inter alia, a
plaintiff’s activities of daily living. See, Social Security Ruling 96-7p and 20 C.F.R. §§404.1529,
416.929. It is the responsibility of the ALJ to look at inconsistencies between the claimant's
statements and the evidence presented in making his/her RFC determination. Id. After a review
of the record, I find that the ALJ explained, in detail,6 the inconsistencies he found in evaluating
Plaintiff’s testimony in relation to all of the other evidence (including, inter alia, activities of daily

Plaintiff suggests that the ALJ erred in using “boilerplate language” in assessing Plaintiff’s credibility.
(ECF No. 14, pp. 14-15). After a review of the record, I disagree. While the ALJ does set forth the
common language used in considering the limiting effects of Plaintiff’s symptoms, he by no means ends
his discussion there. See, ECF No. 9-2, pp. 19-39. Rather, the ALJ thoroughly discusses, evaluates
and weighs the evidence in detail. Id.
6

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living and the testimony of a third-party statement from a co-worker7) in determining her RFC.
(ECF No. 9-2, pp. 36-37). I further find there is substantial evidence to support his findings in
this regard.8 Consequently, I find no merit to this assertion.
D.

Past Relevant Work

Plaintiff’s final argument is that the ALJ erred in finding that she is able to perform her past
relevant work as a prep cook. (ECF No. 14, pp. 18-20). Past relevant work pertains to the
particular job or the occupation as performed by a plaintiff.9 SSR 82-61; 82-62. “[A] claimant

The ALJ considered Plaintiff’s co-worker’s statement. (ECF No. 9-2, p. 37). The ALJ found it to be
partially persuasive “noting that it is a statement from an untrained layperson. The individual does report
some symptoms, but the claimant was interacting with this individual after the end of the prescribed period,
which defined the period under adjudication and the RFC above would accommodate all observed
problems.” Id. These are valid and appropriate rationales for partially crediting the testimony. After a
review of the record, I find there is substantial evidence to support this finding of the ALJ. (ECF No. 9-2,
pp. 19-39). Therefore, I find no error in this regard.
7

8Again,

Plaintiff suggests at various points of this argument that there is evidence to support her argument
that she is credible. (ECF No. 14, pp. 13-18). “[The] question is not whether substantial evidence supports
Plaintiff’s claims, or whether there is evidence that is inconsistent with the ALJ’s finding…” Weidow, at *18.
Rather, the question before me is whether substantial evidence supports the ALJ’s findings. Allen v.
Bowen, 881 F.2d 37, 39 (3d Cir. 1989). Thus, Plaintiff’s argument in this regard is misplaced.
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Social Security Rule 82-61 provides:
The part of the law pertaining to past relevant work provides that as a part of the requirements for a
finding of disability a claimant must have a medically determinable physical or mental impairment of
such severity that he or she is not able to do his or her previous work. Sections 404.1520(e) and
416.920(e) of the regulations state as follows:
“Your impairment must prevent you from doing past relevant work. If we cannot make a decision
based on your current work activity or on medical facts alone, and you have a severe impairment,
we then review your residual functional capacity and the physical and mental demands of the work
you have done in the past. If you can still do this kind of work, we will find that you are not
disabled.” (Underscoring added.)
SSR 82-61. Three possible tests for determining whether or not a claimant retains the capacity to
perform his or her past relevant work are as follows:
1. Whether the claimant retains the capacity to perform a past relevant job based on a broad
generic, occupational classification of that job….
2. Whether the claimant retains the capacity to perform the particular functional demands and job
duties peculiar to an individual job as he or she actually performed it….
3. Whether the claimant retains the capacity to perform the functional demands and job duties of the
job as ordinarily required by employers throughout the national economy….
Id.

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will be found to be ‘not disabled’ when it is determined that he or she retains the RFC to
perform…the actual functional demands and job duties of a particular past relevant job; or the
functional demands and job duties of the occupation as generally required by employers
throughout the national economy.” Id. (Policy Statement). In other words, if an individual can
perform his past relevant work, that individual is not disabled and the inquiry ends. SSR 82-61;
82-62.
In this case, one of Plaintiff’s prior jobs is that of a prep cook. (ECF No. 9-2, p. 9-2, p.
38). At the hearing, the vocational expert (“VE”) testified that a person with Plaintiff’s RFC could
perform the job of prep cook. (ECF No. 9-2, p. 38). The ALJ accepted this testimony and found
that Plaintiff is capable of performing her past relevant work of prep cook. Id. 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, there is substantial
evidence that the ALJ’s hypothetical questions accurately reflected Plaintiff’s impairments. (ECF
No. 6-2, pp. 13-29). Consequently, I find no error in this regard.10
An appropriate order shall follow.

10

I note that, alternatively, the ALJ found that there are other jobs that exist in significant number in the
national economy that Plaintiff can also perform. (ECF No. 9-2, pp. 38-39). Plaintiff does not take issue
with this alternative finding. See, ECF No. 14. As a result, even if the ALJ erred in finding that Plaintiff
could perform her past relevant work, remand would not be warranted as the ALJ found other jobs that
exist in significant number in the national economy that Plaintiff can also perform. (ECF No. 9-2, pp. 3839).

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

DONNA JEAN BERGAMASCO,
Plaintiff,
-vsNANCY A. BERRYHILL,11
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 18-435

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 30th day of April, 2019, it is ordered that Plaintiff’s Motion for Summary
Judgment (ECF No. 13) is denied and Defendant’s Motion for Summary Judgment (ECF No. 15)
is granted.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

11Nancy

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