HETRICK v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
MEMORANDUM JUDGMENT ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/29/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC L. HETRICK,
Plaintiff,
v.
Civil Action No. 10-151J
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
~~ay
this
of
September,
2011,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
Social
Security
("Commissioner" )
denying
plaintiff's application for disability insurance benefits under
Title II of the Social Security Act
("Act"), IT IS ORDERED that
the Commissioner's motion for summary judgment (Document No. 11)
be,
and the same hereby is,
summary judgment
granted and plaintiff's motion for
(Document No.9)
be,
and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may reject
or discount
reasons for doing so.
Cir.1999).
substantial
fQ.AO 72
(Rev. 8/82)
findings,
any evidence
if
the ALJ explains
the
Plummer v. Apfel,
186 F.3d 422, 429
(3d
Where the ALJ's findings of fact are supported by
evidence,
even
if
it
a
reviewing
would have
court
is
bound
by
decided
the
factual
those
inquiry
differently.
2001).
Fargnoli v.
Massanari,
247 F.3d 34,
38
(3d Cir.
These well-established principles preclude a reversal or
remand of the ALJ' s decision here because the record contains
substantial
evidence
to
support
the
ALJ IS
findings
and
conclusions.
Plaintiff protectively filed
his
pending application for
benefits on January 16, 2007, alleging a disability onset date of
February 28,
2005,
due
to a
neck
injury and heart problems.
Plaintiff's application was denied initially.
At plaintiff's
request an ALJ held a hearing on May 27, 2008, at which plaintiff,
represented by counsel, appeared and testified.
On July 8, 2008,
the ALJ issued a decision finding that plaintiff is not disabled.
On April 15, 2010, the Appeals Council denied review making the
ALJ's decision the final decision of the Commissioner.
Plaintiff was 43 years old at the time of the ALJ's decision
and is classified as a younger person under the regulations.
C.F.R.
§404.1563(c).
classified as limited.
20
He has a tenth grade education which is
20 C.F.R. §404.1564(b) (3).
past relevant work experience as a
Plaintiff has
tractor trailer driver and
truck driver, but he has not engaged in any substantial gainful
activity since the alleged onset date.
After
testimony
reviewing
from
plaintiff's
plaintiff
and
a
medical
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that although the medical evidence establishes
that plaintiff suffers from the severe impairments of cervical
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degenerative disc disease with radiculopathy, status post cervical
diskectomy
and
fusion,
vasovagal
episodes
with
consciousness,
occipital
neuralgia,
coronary
artery
hypertension,
history of
myocardial
infarction
loss
of
disease,
status
post
a
stent, and obesity, those impairments, alone or in combination, do
not meet or equal the criteria of any of the impairments listed at
Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacity to engage in work at the light exertional
level but with numerous physical, non-exertional and environmental
restrictions recognizing the limiting effects of his impairments.
(R. 13).
Taking into account these limiting effects, a vocational
expert identified numerous categories of jobs which plaintiff can
perform
based
upon
his
age,
education,
work
experience
and
residual functional capacity, including garment sorter and folder.
Relying on the vocational expert's testimony, the ALJ found that,
although plaintiff cannot perform his past relevant work, he is
capable of making an adjustment
to numerous
significant numbers in the national economy.
jobs existing in
Accordingly, the ALJ
concluded that plaintiff is not disabled under the Act.
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of
at
least
twelve
months.
42
U.S.C.
§423 (d) (1) (A) .
The
impairment or impairments must be so severe that the claimant "is
not only unable to do his previous work but cannot, considering
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his age, education and work experience, engage in any other kind
of substantial gainful work which exists in the national economy
• • • • II
42 U.S.C. §423 (d) (2) (A) .
The Commissioner has promulgated regulations incorporating
a five-step sequential evaluation process for determining whether
a claimant is under a disability.l
20 C.F.R. §404.1520.
If the
claimant is found disabled or not disabled at any step, the claim
need not be reviewed further.
Id.; see Barnhart v. Thomas, 124
S . Ct. 3 76 (2003) .
Here,
plaintiff
determination
improperly
that
raises
plaintiff
evaluated
treating physician;
the
is
not
medical
challenges
to
disabled:
evidence
the
(1)
from
ALJ's
the
ALJ
plaintiff's
(2) the ALJ improperly evaluated plaintiff's
credibility;
and,
finding
hypothetical
and
several
(3)
the ALJ's
to
residual
the
functional
vocational
account for all of plaintiff's limitations.
expert
capacity
failed
Upon review,
to
the
court is satisfied that the ALJ properly evaluated the evidence
and that all of the ALJ's findings are supported by substantial
evidence.
1
The ALJ must determine:
(I) whether the claimant is
currently engaged in substantial gainful activity; (2) if not,
whether he has a severe impairment; (3) if so, whether his
impairment meets or equals the criteria listed in 20 C.F.R. Part
404, Subpart P, Appendix Ii (4) if not, whether the claimant's
impairment prevents him from performing his past-relevant work;
and, (5) if so, whether the claimant 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; Newell v. Commissioner of Social Security, 347
F.3d 541, 545 (3d Cir. 2003).
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4
Plaintiff's
first
argument
evaluated the medical evidence.
is
that
the
ALJ
improperly
Specifically, plaintiff contends
that the ALJ failed to give controlling weight to the opinion of
his treating physician, Dr. Paterson, who opined in a physician
statement dated March 6,
2008,
that plaintiff cannot engage in
work related activity on a sustained basis.
(R.
435-36).
The
court finds no error in the ALJ's evaluation of this evidence.
Under the Social Security Regulations and the law of this
circuit,
opinions
of
treating
physicians
are
entitled
substantial, and at times even controlling, weight.
§404.1527(d) (2)
i
Fargnoli,
247
F.3d at 33.
to
20 C.F.R.
Where a
treating
physician's opinion on the nature and severity of an impairment
is well supported by medically acceptable clinical and laboratory
diagnostic
techniques
and
is
not
inconsistent
with
other
substantial evidence in the record, it will be given controlling
weight.
Id.
When a treating source's opinion is not entitled to
controlling weight, it is to be evaluated and weighed under the
same standards applied to all other medical opinions, taking into
account numerous factors, including the opinion's supportability,
consistency and specialization.
Here,
the
ALJ
adhered
20 C.F.R. §404.1527(d).
to
evaluating the medical evidence.
the
foregoing
standards
in
The ALJ expressly addressed Dr.
Peterson's report in his decision and thoroughly explained why he
did not give his opinion controlling weight.
noted that Dr.
findings
and is
The ALJ
Paterson's opinion is not supported by his own
inconsistent with the clinical and objective
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(R. 18 19).
- 5
findings of record and with other substantial evidence.
(R. 19)
In particular, the ALJ pointed out that Dr. Paterson reported many
"benign
objective
signs"
and
that
plaintiff's
self reported
activities also are inconsistent with the "degree of limitation"
suggested by Dr.
Paterson.
Finally,
the ALJ noted that Dr.
Paterson's conclusions were at odds with those of the state agency
medical consultant whose opinion was entitled to "some weight."
Because Dr.
Paterson's
limitations
are
inconsistent
with
the
totality of the evidence, the ALJ determined his opinion was not
entitled to controlling weight.
(R. 19).
The record supports the ALJ's evaluation of the foregoing
medical
evidence.
As
an
initial
matter,
the
opinion
of
a
physician, treating or otherwise, on the ultimate determination
of disability never is entitled to special significance.
C.F.R.
§404.1527{e);
SSR
96-5p.
Accordingly,
Dr.
20
Paterson's
opinion that plaintiff cannot work on a sustained basis was not
entitled to controlling weight.
The ALJ's conclusion that plaintiff's severe impairments do
not
result
in
completely
debilitating
limitations
also
is
supported by other evidence in the record as detailed by the ALJ,
including the medical examiners at Corporate Care Services, who
opined that plaintiff could perform at least sedentary work, and
Drs. Talbott, Lieber and Bookwalter. (R. 17-18).
In light of this
contrary evidence, the ALJ did not err in not giving controlling
weight to Dr. Paterson's opinion that plaintiff cannot perform any
work.
20 C.F.R. §404.1527{d) i SSR 96-2p.
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The ALJ also properly considered the opinion of the state
agency consultant in assessing plaintiff/s residual functional
capacity.
Pursuant
consultants are
to
the
Regulations,
state
"highly qualified physicians
agency medical
...
experts in Social Security disability evaluation.
§404.1527(f) (2) (i).
who are also
I'
20 C.F.R.
Accordingly, while not bound by findings made
by reviewing physicians, the ALJ is to consider those findings as
opinion evidence, and is to evaluate them under the same standards
as
all
other
medical
opinion
§404.1527(f) (2) (ii) i SSR 96-6p.
evidence.
20
The ALJ did so here and
C.F.R.
l
having
concluded that the state agency physician/s report was consistent
with,
and supported bYI
the medical evidence,
that opinion "some weight.
In sum
l
1I
he properly gave
(R.19).
the ALJ did a thorough job in his decision in setting
forth the relevant medical evidence and explaining why he rejected
or discounted any evidence.
The court has reviewed the ALJ's
decision and the record as a whole and is satisfied that the ALJ/s
evaluation of the medical evidence is supported by substantial
evidence.
The court also finds no error in the ALJ's evaluation of
plaintiff/s subjective complaints of pain and limitations.
required
l
As
in assessing plaintiff's credibility the ALJ considered
plaintiff's
subjective
complaints,
but
also
considered
those
complaints in light of the medical evidence and all of the other
evidence of record.
20 C.F.R. §404.1529(c)
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i
see also SSR 96-7p.
The ALJ did a thorough job in his decision explaining why
plaintiff's statements concerning the intensity, persistence and
limiting effects of his symptoms are not entirely credible.
16-17).
Moreover,
while it is true,
(R.
as plaintiff now asserts,
that sporadic and transitory activities cannot be used to show an
ability to engage in substantial gainful activity, see Fargnoli,
247 F.3d at 40,
n.S,
the ALJ did not do so here.
determining plaintiff's
residual
functional
Instead,
capacity,
in
the ALJ
properly considered plaintiff's allegations in light of not only
his activities of daily living but also in light of the medical
evidence,
findings
which revealed the absence of clinical and objective
supporting
plaintiff's
allegations
of
totally
debilitating symptoms.
It also is important to note that while the ALJ did not find
plaintiff's subjective complaints entirely credible, his decision
makes clear that, to the extent plaintiff's allegations as to the
limitations arising from his impairments are supported by the
medical and other evidence, the ALJ accommodated those limitations
in his residual functional capacity finding.
Only to the extent
that plaintiff's allegations are not so supported did the ALJ find
them to be not credible.
The court is satisfied that the ALJ's
evaluation of plaintiff's credibility is supported by substantial
evidence.
Finally, the court finds no merit to plaintiff's contention
that the ALJ improperly relied on the vocational expert's response
to a hypothetical that failed to account for the likelihood that
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plaintiff would need excessive rest breaks during the workday and
that he likely would be absent from work in excess of 15 days per
month as suggested by Dr. Paterson.
(R. 436).
A hypothetical to the vocational expert must reflect only
those
impairments
and
limitations
supported
by
Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984).
the
record.
Here, the need
for excessive breaks or to miss work for fifteen or more days per
month is supported neither by the objective medical evidence nor
by plaintiff's reported daily activities.
Accordingly,
the ALJ
did not err in rejecting the vocational expert's response to a
hypothetical posited by plaintiff's attorney incorporating such
limitations.
See Jones v. Barnhart, 364 F.3d SOl, 506 (3d Cir.
2004) (ALJ has authority to disregard vocational expert's response
to hypothetical inconsistent with evidence) .
After
carefully and methodically considering all
medical evidence of record and plaintiff's testimony,
of
the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
The ALJ's findings and conclusions are supported by
substantial
evidence
and
are
not
otherwise
erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
/
Gustave Diamond
United States District Judge
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cc:
Karl E. Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
John J. Valkovci, Jr.
Assistant U.S. Attorney
224 Penn Traffic Building
319 Washington Street
Johnstown, PA 15901
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