BUTLER v. COMMISSIONER OF SOCIAL SECURITY
Filing
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ORDER denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 7/2/19. (cha)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DORIAN LEROY BUTLER,
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Plaintiff,
-vsANDREW M. SAUL,
Defendant.
Civil Action No. 18-792
AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Dorian Leroy Butler (“Butler”) seeks judicial review of the Social Security
Administration’s denial of his claim for supplemental security income (“SSI”). Butler
alleges a disability onset date of June 27, 2013. (R. 18). (R. 15) Butler testified by
telephone during a hearing in which a vocational expert (“VE”) was present but did not
testify. (R. 18) Thereafter Butler attended a consultative administrative examination
regarding his intellectual functioning. Following the submission of a report regarding the
results of the testing, the ALJ tendered a Request for Vocational Interrogatory to a VE.
The VE thereafter forwarded responses and the ALJ issued a decision denying Butler’s
claim. Butler then appealed. Before the Court are the parties’ cross-motions for
summary judgment. See ECF Docket Nos. 12 and 15. For the reasons set forth below,
the ALJ’s decision is affirmed.
Opinion
1. Standard of Review
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Judicial review of the Commissioner’s final decisions on disability claims is provided
by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court
to review the transcripts and records upon which a determination of the Commissioner
is based, and the court will review the record as a whole. See 5 U.S.C. § 706. When
reviewing a decision, the district court’s role is limited to determining whether the record
contains substantial evidence to support an ALJ’s findings of fact. Burns v. Barnhart,
312 F.3d 113, 118 (3d Cir. 2002). 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); Richardson, 402 U.S. at 390, 91 S. Ct. 1420.
Importantly, a district court cannot conduct a de novo review of the
Commissioner’s decision, or re-weigh the evidence of record; the court can only judge
the propriety of the decision with reference to the grounds invoked by the Commissioner
when the decision was rendered. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa.
1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995
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(1947). Otherwise stated, “I may not weigh the evidence or substitute my own
conclusion for that of the ALJ. I must defer to the ALJ’s evaluation of evidence,
assessment of the credibility of witnesses, and reconciliation of conflicting expert
opinions. If the ALJ’s findings of fact are supported by substantial evidence, I am bound
by those findings, even if I would have decided the factual inquiry differently.” Brunson
v. Astrue, 2011 WL 2036692, 2011 U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011)
(citations omitted).
II. The ALJ’s Decision
As stated above, the ALJ denied Butler’s claim for benefits. More specifically, at
step one of the five step analysis, the ALJ found that Butler had not engaged in
substantial gainful activity since the application date. (R. 20) At step two, the ALJ
concluded that Butler suffers from the following severe impairments: major depression
with psychotic features; mood disorder; bipolar disorder; schizoaffective disorder;
borderline intellectual functioning; and obesity. (R. 21) At step three, the ALJ concluded
that Butler does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. 23-27) Between steps three and four, the ALJ found that Butler has the
residual functional capacity (“RFC”) to perform work at all exertional levels with certain
restrictions. (R. 28-39) At step four, the ALJ found that Butler has no past relevant work.
(R. 39-40) At the fifth step of the analysis, the ALJ concluded that, considering Butler’s
age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (R. 40-41) As such, the ALJ
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concluded that Butler was not under a disability during the relevant period of time. (R.
41)
III. Discussion
Butler limits his appeal to a single issue – the ALJ’s assessment of his intellectual
functioning. He contends that the ALJ erred in the evaluation of the consultative
examiner’s opinion regarding his intellectual functioning and, as a result, the denial of
benefits was erroneous. His argument rests, in large part, upon the evaluation of Dr.
Pacella’s opinion.
Dr. Pacella,1 the consultative examiner, diagnosed Butler, in part, with borderline
intellectual functioning. (R. 1022) The ALJ gave this diagnosis significant weight but
gave Pacella’s conclusions regarding functional limitations only partial weight. (R. 38)
Specifically, the ALJ accepted Pacella’s findings such that Butler satisfied the
requirements of Listing 12.05B(1) and (3) and 12.11A. Nevertheless, the ALJ rejected
Pacella’s findings to the extent that they supported the conclusion that Butler satisfied
the requirements of 12.05B(2) and 12.11B. (R. 24-26)
Butler points to several of Pacella’s findings which he contends support a conclusion
that he does, in fact, satisfy these requirements. See ECF Docket No. 13, p. 13. Yet this
is the wrong standard. The question before me is not:
whether substantial evidence supports Plaintiff’s claims or whether there is evidence
that is inconsistent with the ALJ’s findings…. 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. Dept. of Health & Human Servs.,
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 findings, it does not matter if
substantial evidence also supports Plaintiff’s claims. Reefer v. Barnhart, 326 F.3d
376, 379 (3d Cir. 2003).
Butler makes a passing reference to Dr. Deines’ opinion but does not set forth any argument as to why the ALJ
erred in the assessment of the opinion. Consequently, I decline to consider it.
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Hundley v. Colvin, 2016 WL 6647913, at * 2 (W.D. Pa. Nov. 10, 2016). Consequently,
Butler’s contentions in this regard are not convincing.
Contrary to Butler’s position, I find that the ALJ’s assessment of Pacella’s opinion is
supported by substantial evidence of record and that the ALJ has provided sufficient
explanation of her decision to allow this Court to determine whether any rejection of
potentially pertinent, relevant evidence was proper. Johnson v. Comm’r. of Soc. Sec.,
529 F.3d 198, 203-04 (3d Cir. 2008). It is important to note that Pacella did not serve as
Butler’s “treating physician.” His opinion did not “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. 2010). As such, Pacella’s opinion is not
entitled to any deference or controlling weight. When viewed in this context, the ALJ
appropriately accorded Pacella’s opinion weight where the findings were supported by
substantial evidence of record. For instance, Pacella’s notation that Butler’s recent and
remote memory skills were limited; that Butler required some repetition of instructions;
that he tended to give up easily; and that he was easily frustrated, all support Pacella’s
diagnosis of borderline intellectual functioning. (R. 35)
In contrast, where Pacella’s opinion lacked record support, the ALJ’s decision to
accord the opinion less weight is supported by substantial evidence of record. For
instance, Pacella noted that although Butler’s ability to understand, remember, and
carry out complex instructions was markedly limited, his ability to understand,
remember, and carry out simple instructions was only “moderately” limited. (R. 1023)
Similarly, Pacella concluded that Butler’s ability to interact appropriately with the public,
with supervisors and with co-workers was somewhere on the continuum between
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moderately and markedly limited. (R. 1024) Pacella attributed Butler’s placement on the
continuum to Butler’s criminal behavior. (R. 1024) Yet, as the ALJ noted, “[t]his criminal
activity did not occur during a period of sobriety.” (R. 38) See also (R. 1019, “From age
16, Mr. Butler began using alcohol and cocaine. He has been abstinent from cocaine
use since 2015 but drank last weekend. He endorsed criminal behavior to support his
habit (theft).”) The ALJ also found that Pacella’s recommendation to “consider referral to
OVR” to suggest “some capacity for work … despite the determination of borderline
intellectual functioning.” (R. 38) The ALJ’s findings in this regard are supported by those
of Kerry Brace, the State agency psychological consultant, who determined that Butler
“could understand, retain, and carry out simple work instructions and was able to
perform concentration, persistence, and pace functions adequately for work involving
simple repetitive tasks.” (R. 37) Similarly, Brace found that, although Butler would have
“marked limitations interacting with the public, his interactions with supervisors and coworkers were only moderately limited” and that “he could function in settings not
involving undue work pressures or frequent changes in routine.” (R. 37) These
functional limitations are consistent with those the ALJ ultimately adopted. As such, I
find no error in the ALJ’s assessment of Pacella’s opinion.
Given my holding in this regard, I am not persuaded by Butler’s additional argument
that the ALJ erred in finding that he failed to satisfy the requirements of Listings 12.05
and 12.11 at the third step of the analysis. Butler’s contention is premised upon the
success of his averment that the ALJ’s assessment of Pacella’s opinion was erroneous.
As stated above, I reject that contention. Consequently, the challenge to the ALJ’s
findings at step three of the analysis is similarly unpersuasive.
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Additionally, I find Butler’s analysis wanting in that he does not address the ALJ’s
conclusion that the analysis for a diagnosis of borderline intellectual functioning should
proceed under Listing 12.11 rather than under 12.05. (R. 26) Listing 12.11, which
addresses “neurodevelopmental disorders,” are “characterized by onset during the
developmental period” specifically references borderline intellectual disorders. See
Listing 12.00B(9) In contrast, Listing 12.05 addresses intellectual disorders which are
“characterized by significantly subaverage general intellectual functioning” and “may be
described in the evidence as intellectual disability, intellectual developmental disorder,
or historically used terms such as ‘mental retardation.’” See Listing 12.00B(4).
Importantly, “[i]ntellectual disorder” does not include any neurodevelopmental disorders.
Id.2 As such, Listing 12.05 is inapplicable in this instance.
Nevertheless, both Listing 12.05 and Listing 12.11 share certain requirements. 3
Specifically, both Listings require an extreme limitation of one, or marked limitation of
two, of the following areas of mental functioning: understand, remember or apply
information; or interact with others; or concentrate, persist, or maintain pace; or adapt or
manage oneself. Even if I found Listing 12.05 to be applicable, and even if I accepted
Pacella’s functional limitations, Butler would not satisfy the requirements of Listing
12.05. Simply stated, Pacella does not identify the extreme limitation of one, or the
marked limitation of two, areas of mental functioning. Pacella did not describe Butler as
having any marked functional limitations other than in performing complex tasks. (R.
1023-24)
2
Pacella specifically diagnosed Butler with borderline intellectual functioning in May of 2017. Given that timing,
Listing 12.11 is applicable.
3
The ALJ accepted that Butler satisfied the requirements of 12.05B(1) and (3) and 12.11A, but concluded that he
did not satisfy the requirements of 12.05B(2) and 12.11B. (R. 24-26)
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Further, the ALJ cited to other substantial evidence of record in support of the
conclusion that Butler cannot meet these requirements. For instance, the ALJ noted that
Butler could read, write, county money, and could take a bus. (R. 25) She also
acknowledged that Butler had attended job fairs, interviewed for a job, and looked for
work. (R. 32) The ALJ further found that Butler is able to take public transportation;
interacts with a friend from childhood; is pleasant, cooperative and communicates
effectively with treating providers; is compliant with mental health treatment when he
abstains from substance abuse and does not have suicidal or homicidal ideations or any
delusions or auditory hallucinations; is independent in self-care and is capable of
performing basic household tasks and daily activities. (R. 26-27) This constitutes more
than substantial evidence supporting the ALJ’s conclusion that Butler did not meet the
Listing requirements at the third step of the analysis. As such, there is no basis for
remand.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DORIAN LEROY BUTLER
Plaintiff,
)
)
)
)
)
)
)
)
-vsANDREW M. SAUL
Defendant.
Civil Action No. 18-792
AMBROSE, Senior District Judge.
ORDER OF COURT
Therefore, this 2nd day of July, 2019, it is hereby ORDERED that the Plaintiff’s
Motion for Summary Judgment (Docket No. 12) is DENIED and the Defendant’s Motion
for Summary Judgment (Docket No. 15) is GRANTED. It is further ORDERED that the
ALJ’s decision is AFFIRMED. This case shall be marked “Closed” forthwith.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
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