NEVINS v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
MEMORANDUM JUDGMENT ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 12 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 9/26/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ADAM BRAD NEVINS,
Plaintiff,
v.
Civil Action No. 10-193J
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
~~y
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
Social
of
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. 12)
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 rej ect
or discount
reasons for doing so.
Cir.1999).
substantial
any evidence
if
Plummer v. Apfel,
the ALJ explains
the
186 F.3d 422,
(3d
429
Where the ALJ's findings of fact are supported by
evidence,
a
reviewing
court
is
bound
by
decided
the
factual
those
.AOn
(Rev. 8/82)
findings,
even
if
it
would have
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 I
substantial
S
decision here because the record contains
evidence
to
support
the
ALJ I s
findings
and
conclusions.
Plaintiff protectively filed
his
pending application for
benefits on April 10, 2008, alleging a disability onset date of
July 13, 2006, due to back pain and diabetes.
Because plaintiff
had acquired sufficient coverage to remain insured only through
December 31,
2007,
he is required to establish that he became
disabled prior to that date.
Accordingly,
the relevant
time
period at issue in this case is the alleged onset date of July 13,
2006, to the "date last insured" of December 31, 2007.
Plaintif f' s application was denied ini tially.
request
an ALJ held a
plaintiff,
hearing on January
represented by counsel,
5,
At plaintiff's
2010,
at
which
appeared and testified.
On
January 22, 2010, the ALJ issued a decision finding that plaintiff
was not disabled at any time during the relevant time period.
On
June 19, 2010, the Appeals Council denied review making the ALJ's
decision the final decision of the Commissioner.
Plaintiff was 42 years old on his date last insured and is
classified as a younger person under the regulations.
§404 .1563 (c) .
He
has
a
high
school
education and
20 C.F.R.
has
past
relevant work experience as a manager, a truck driver and a police
officer, but he did not engage in any substantial gainful activity
during the relevant time period.
t!\l,AOn
(Rev. 8/82)
2
After
testimony
reviewing
from
plaintiff t s
plaintiff
and
medical
a
records
vocational
and
hearing
expertt
the
ALJ
concluded that plaintiff was not disabled within the meaning of
the Act during the relevant time period.
The ALJ found that
although the medical evidence establishes that plaintiff suffers
from the severe impairments of spinal disorders t diabetes mellitus
II
and
migraine
combination,
headaches,
those
do not meet or equal
impairments t
alone
or
in
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 sedentary exertional
level
but
with certain restrictions
recognizing
effects of his impairments t including,
inter alia,
option and the need to raise his feet.
account these limiting effects t
the
(R.
13).
limiting
a sit/stand
Taking into
a vocational expert identified
numerous categories of jobs which plaintiff can perform based upon
his
age,
capacity,
education,
found
experience
including buckler/lacer,
weight tester.
ALJ
work
and
residual
band attacher,
functional
patcher and
Relying on the vocational expert's testimony, the
that,
although
plaintiff
cannot
perform
his
past
relevant work, numerous jobs existed in significant numbers in the
national economy that plaintiff could have performed prior to the
expiration of his insured status.
Accordingly, the ALJ determined
that plaintiff was not under a disability during the relevant time
period.
'A072
(Rev. 8/82)
- 3
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
l
considering
his agel education and work experience I engage in any other kind
of substantial gainful work which exists in the national economy
• • • • 11
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 stepi the claim
need not be reviewed further.
s. Ct.
Id.; see Barnhart v. Thomas
I
124
376 (2003).
Here
l
plaintiff
raises
two
challenges
to
the
ALJ/s
determination that plaintiff was not disabled during the relevant
time period:
(1) the ALJ improperly analyzed the medical evidence
and
to
failed
give
appropriate
weight
to
the
opinion
of
1
The ALJ must determine:
(1) whether the claimant is
currently engaged in substantial gainful activity; (2) if not
whether he has a severe impairment; (3) if SOl whether his
impairment meets or equals the criteria listed in 20 C.F.R. Part
404 1 Subpart PI Appendix 1; (4) if not
whether the claimant's
impairment prevents him from performing his past-relevant work;
and l (5) if SOl 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).
l
l
~A072
(Rev. 8/82)
-
4
plaintiff's
treating
physician;
and,
(2)
the
evaluated plaintiff's subjective complaints.
ALJ
improperly
Upon review,
the
court is satisfied that the ALJ properly evaluated the evidence
and that all of the ALJ's findings are supported by substantial
evidence.
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. Lieber, who suggested on two occasions
that plaintiff cannot work.
(R. 314; 317).2
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
substantial,
of
treating
physicians
and at times even controlling,
§404.1527(d) (2);
Fargnoli,
247
F.3d at
33.
are
entitled
weight.
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
2 In a letter to Dr. Berez dated March 14, 2007, Dr. Lieber
noted that plaintiff "is still incapable of performing sedentary
work due to the fact that he has sitting intolerance." (R. 314).
In another letter to Dr. Berez dated May 31, 2007, Dr. Lieber
again noted that "[a] t present, [plaintiff] cannot work."
(R.
317) .
'!,\,Aon
(Rev. 8/82)
- 5
account numerous factors
l
including the opinion/s supportabilitYI
consistency and specialization.
Here
the
evaluating
contention
plaintiff
relevant
ALJ
the
l
medical
20 C.F.R. §404.1527(d).
adhered
to
the
foregoing
evidence.
Contrary
the ALJ did not ignore Dr.
l
could
time
not
perform
period
but
l
even
he
to
Lieber s
in
plaintiff/s
opinion that
l
sedentary
rather
standards
work
during
the
expressly addressed Dr.
Leiber1s reports in his decision and adequately explained why he
did not give his opinion controlling weight.
(R. 16).
The ALJ explained that Dr. Lieber s opinion is not supported
l
by his own findings and is inconsistent with the clinical and
obj ective findings of record and with other substantial evidence.
(R.
16)
In particular
throughout
negative
the
I
the ALJ pointed out that consistently
time period at
straight
leg
raise
issue Dr.
tests
bilateral lower extremity strength
a neurological deficit.
that
plaintiff
could
full
reported
normal
l
I
intact
sensation and reflexes without
l
(R.16) .
not
and
Lieber had
Because Dr. Lieber's opinion
perform
even
sedentary
inconsistent with the totality of the evidence
l
work
was
the ALJ determined
it was not entitled to controlling weight.
the ALJ 1s
The record clearly supports
foregoing medical evidence.
a physician
l
As an initial matter
treating or otherwise
l
i
SSR 96-5p.
l
the
the opinion of
on the ultimate determination
of disability never is entitled to special
C.F.R. §404.1527(e)
evaluation of
significance.
20
Accordingly, Dr. Lieber1s opinion
that plaintiff cannot work was not entitled to controlling weight.
~A072
(Rev. 8/82)
- 6
The ALJ's conclusion that plaintiff's back impairment, while
severe,
during
did not result
the
relevant
in completely debilitating limitations
time
evidence in the record.
period
also
is
supported
by other
The ALJ summarized the relevant medical
evidence in his decision and noted that Dr. Bookwalter reported
on October 6, 2006, that plaintiff had normal reflexes and normal
straight leg raising and no motor deficit.
opinion of Dr.
objective
Lieber was
medical
findings
evidence in the record,
(R. 14).
Because the
inconsistent not only with his own
but
also
with
other
substantial
the ALJ did not err in not giving his
opinion controlling weight.
20 C.F.R. §404.1527(d) i SSR 96-2p.
The ALJ also properly considered the opinion of the state
agency consultant in assessing plaintiff's residual functional
capacity.
Pursuant to the
consul tants are
Regulations,
state agency medical
"highly qualified physicians
...
experts in Social Security disability evaluation.
§404.1527(f) (2) (i).
who are also
20 C.F.R.
II
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); SSR 96-6p.
evidence.
20
C.F.R.
The ALJ did so here and, having
concluded that the state agency physician's report was consistent
with,
and supported by,
the medical evidence,
that opinion "significant probative weight./I
he properly gave
(R. 15).
In sum, the ALJ did a thorough job in his decision in setting
forth the relevant medical evidence and explaining why he rejected
~A072
(Rev. 8182)
- 7
or discounted any evidence.
The court has reviewed the ALJ's
decision and the record as a whole and is convinced that the ALJ's
evaluation of the medical evidence is supported by substantial
evidence.
The court also is satisfied that the ALJ properly evaluated
plaintiff's
subjective
complaints
SSR 96-7p.
ALJ
pain and
limitations
20 C.F.R. §404.1S29(c)
accordance with the regulations.
of
i
in
see also
As required, in assessing plaintiff's credibility the
considered
plaintiff's
subjective
complaints,
but
also
considered those complaints in light of the medical evidence and
all of the other evidence of record.
The ALJ did an adequate job in his decision explaining why
plaintiff's statements concerning his impairments and their impact
on his ability to work are not entirely credible.
Moreover,
while
it
is
true,
as
plaintiff
now
(R.
15).
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
~A072
(Rev 8182)
- 8
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.
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
cc: Sandra R. Kushner, Esq.
Rothman Gordon, P.C.
Grant Building, Third Floor
310 Grant Street
Pittsburgh, PA 15219
Stephanie L. Haines
Assistant U.S. Attorney
200 Penn Traffic Building
319 Washington Street
Johnstown, PA 15901
'A072
(Rev. 8/82)
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