SIMMONS v. ASTRUE

Filing 19

MEMORANDUM AND ORDER OF COURT denying 10 Plaintiff's Motion for Summary Judgment and granting 16 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum and Order of Court for further details. Signed by Judge Gustave Diamond on 9/30/13. (gpr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHARLENE KAE SIMMONS,
Plaintiff,
v.

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 12-1451

MEMORANDUM AND ORDER OF COURT
AND NOW, this

..3~f September, 2013, upon due consideration of the parties'

cross-motions for summary judgment pursuant to plaintiff's request for review ofthe decision of
the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for
disability insurance benefits and supplemental security income under Titles II and XVI,
respectively, ofthe Social Security Act ("Act"), IT IS 0 RDERED that the Commissioner's motion
for summary judgment (Document No. 16) be, and the same hereby is, granted and plaintiff's
motion for summary judgment (Document No. 10) be, and the same hereby is, denied.
As the factfinder, an Administrative Law ludge (" ALl") has an obligation to weigh all of
the facts and evidence of record and may reject or discount any evidence if the ALl explains the
reasons for doing so. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Where the ALl's
findings offact are supported by substantial evidence, a reviewing court is bound by those findings,
even ifit would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALl's
decision here because the record contains substantial evidence to support the ALl's findings and
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conclusions.

Plaintiff protectively filed her pending applications l for benefits on September 30, 2008,
alleging a disability onset date of January 31, 2007, (later amended to March 7, 2008) due to a
number ofmental impairments as well as back pain. Plaintiffs applications were denied initially.
At plaintiff s request an ALJ held a hearing on June 8, 2010, at which plaintiff, represented by
counsel, appeared and testified. On July 30, 2010, the ALJ issued a decision finding that plaintiff
is not disabled. On May 9, 2012, 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. 20 C.F.R. §404.1563(c) and 416.963(c). She has at least a high
school education. Although plaintiff previously worked as a sandwich maker, sales clerk and a
cafeteria worker, the ALJ found that plaintiff has no past relevant work because none ofthose jobs
qualified as substantial gainful activity. Nor has plaintiff performed any substantial gainful activity
since her alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiffis not disabled within the meaning of the Act.
The ALJ found that while plaintiff suffers from the severe impairments of obesity, cognitive
disorder sip traumatic brain injury, bipolar disorder, post-traumatic stress disorder, major
depressive disorder and anxiety disorder, the medical evidence does not show that plaintiff's
impairments, alone or in combination, meet or medically equal the criteria of any of the
impairments listed at Appendix 1 of20 C.F.R., Part 404, Subpart P.

1
For purposes of plaintiffs Title II application, the ALJ found that plaintiff met the disability
insured status requirements of the Act on her alleged onset date and has acquired sufficient quarters of
coverage to remain insured only through September 30,2010.

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The ALl also found that plaintiff retains the residual functional capacity to perfonn
medium work but with numerous restrictions accounting for the limiting effects of plaintiffs
impainnents. 2 A vocational expert identified numerous categories of jobs which plaintiff can
perfonn based upon her age, education, work experience and residual functional capacity,
including janitor/cleaner, dishwasher, laundry worker and vehicle washer.

Relying on the

vocational expert's testimony, the ALl found that there are jobs existing in significant numbers
in the national economy that plaintiff can perfonn. Accordingly, the ALl 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 impainnent which can be expected to last for a continuous period
of at least twelve months. 42 U.S.C. §§423(d)(1)(A) and 1382c(a)(3)(A). The impainnent or
impainnents must be so severe that the claimant "is not only unable to do his previous work but
cannot, considering his age, education and work experience, engage in any other kind ofsubstantial
gainful work which exists in the national economy .... " 42 U.S.c. §§423(d)(2)(A) and
§ 1382c(a)(3)(8).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for detennining whether a claimant is under a disability.3 20 C.F .R. §§404.1520

Specifically, plaintiff is limited to simple, routine tasks involving no more than simple, short
instructions, simple work-related decisions, few work place changes, and no work at a production-rate pace;
is limited to occasional interaction with supervisors and no interaction with the public and coworkers other
than incidental contact; and is limited to work that does not require her to read instructions, write reports,
or perform math calculations, such as teller or cashier work. (R.24).
2

The AU must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impairment; (3) if so, whether her impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents her from performing her past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of her age, education, work
experience, and residual functional capacity. 20 C.F .R. §§404.1520 and 416.920; Newell v. Commissioner
3

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and 416.920. 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. 376 (2003).
Here, plaintiff raises three challenges to the ALl's determination that plaintiff is not
disabled: (1) the ALJ improperly evaluated the medical evidence; (2) the ALJ improperly evaluated
plaintiffs credibility; and, (3) the ALJ erred at step 5 by erroneously relying on the vocational
expert's response to an incomplete hypothetical. Upon review, this court is satisfied that the ALJ
properly evaluated the evidence and that all of the ALl's findings are supported by substantial
evidence.
Plaintiff s first argument is that the ALJ improperly evaluated the medical evidence at steps
3 and 5 of the sequential evaluation process. In particular, she disputes the ALl's analysis of: (1)
a medical source statement completed by her treating physician, Dr. Joseph Sabo, from October
of 2008, in which Dr. Sabo indicated that plaintiff has "marked" or "extreme" limitations in a
number of work-related mental activities (R. 300-301 )4; and, (2) a report from Frank K. Schmidt,
Ph.D., who performed a consultative psychological evaluation in December of2008, in which he
reported that plaintiff has an 85% estimated impairment in social functioning and a 70% estimated

of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence of a mental
impairment that allegedly prevents a claimant from working, the Commissioner must follow the procedure
for evaluating mental impairments set forth in the regulations. Plummer, 186 F.2d at 432; 20 C.F.R.
§§404.1520a and 416.920a.
4
Plaintiff also refers to a second opinion from Dr. Sabo set forth in a mental residual functional
capacity questionnaire dated March 7, 2011, eight months after the ALl's decision on July 30, 2010,
decision. (R. 539-542). Because this report was not before the ALl, this court may not consider it in
evaluating the ALl's decision under the substantial evidence standard. Instead, when a claimant proffers
evidence in the district court that previously was not presented to the ALl, the district court's determination
of whether to remand to the Commissioner for consideration of that evidence is governed by Sentence 6
of §405(g) of the Act. See Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Sentence 6 permits
remand "only upon a showing that there is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a prior proceeding." See also Szubak v. Secretary
of Health & Human Services, 745 F.2d 831, 833 (3d Cir. 1984). "[A] claimant must satisfy all three
requirements of Sentence 6 (new, material and good cause) in order to justify a remand." Matthews at 594;
Szubak at 833. Here, plaintiff has failed to establish, or even to address, any of the three requirements.
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impainnent in concentration, persistence and pace. (R. 400-408). Plaintiff argues that had these
opinions been granted the appropriate weight at step 3 she would satisfy the B criteria of Listing
12.02. Alternatively, she argues that the ALl improperly discounted the foregoing reports in
assessing plaintiffs residual functional capacity at step 5.
Initially, the court finds no error in the ALl's evaluation of the medical evidence at step 3.
At step 3, the ALl must detennine whether the claimant's impainnent matches, or is equivalent to,
one of the listed impainnents. Burnett v. Commissioner of Social Security Administration, 220
F.3d 112, 119 (3d Cir. 2000). The listings describe impainnents that prevent an adult, regardless
of age, education, or work experience, from perfonning any gainful activity. Knepp v. Apfel, 204
F.3d 78,85 (3d Cir. 2000); 20 C.F.R. §§404.1520(d) and 416.920(d). "If the impainnent is
equivalent to a listed impainnent then [the claimant] is per se disabled and no further analysis is
necessary." Burnett, 220 F.3d at 119.
The ALl has the burden to identify the relevant listed impainnent that compares with the
claimant's impainnent and must "fully develop the record and explain his findings at step 3,
including an analysis of whether and why [the claimant's] ... impainnents ... are or are not
equivalent in severity to one of the listed impainnents." Id. at 120, n.2. However, the burden is
on the claimant to present medical findings that show that her impainnent matches or is equal in
severity to a listed impainnent. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
Here, as required, the ALl properly identified Listing 12.02 for organic mental disorders
as the relevant listing that compares with plaintiffs cognitive disorder status post traumatic brain
injury5 and thoroughly explained why that impainnent, alone or in combination with plaintiffs

5
The ALJ also found that plaintiffs other mental impairments do not meet Listings 12.04, 12.05
or 12.06, and plaintiff has not challenged the ALJ's findings as to any other Listing. Accordingly, this
court's analysis focuses solely on whether there is substantial evidence to support the ALJ's finding that
plaintiff does not meet Listing 12.02.
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other impairments, does not meet or equal that listing. (R. 19-24); see Burnett, 220 F.3d at 120,
n.2. In particular, the ALl determined that plaintiff failed to meet either the "B" or "C" criteria of
Listing 12.02.6 Because Listing 12.02 provides that the "required level of severity for [affective]
disorders is met [only] when both the A and B criteria are satisfied, or when the C criteria are met,"
(emphasis added), the ALl concluded that plaintiff does not meet the listing.
Plaintiff contends that the report from Dr. Sabo indicating marked or extreme restrictions
in numerous areas ofwork-re1ated mental activities and Dr. Schmidt's estimated impairments of
85% in social functioning and 70% in concentration, persistence and pace are sufficient to establish
that plaintiff has marked? limitations in the areas of social functioning and concentration,
persistence and pace under the B criteria of Listing 12.02. The court finds this contention to be
without merit.
Neither Dr. Sabo nor Dr. Schmidt opined in the reports at issue that plaintiff's mental
impairments are sufficient to meet or equal Listing 12.02, nor any ofthe other listed impairments
and, in fact, neither was asked to render such an opinion. Indeed, the questionnaire submitted to
Dr. Sabo requested his opinion on plaintiffs ability to perform more specific work-related mental
activities for purposes of assessing plaintiffs mental residual functional capacity.

The "B" criteria under 12.02 provide that the mental impairment must result in at least two of
the following: "1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining
social functioning; or 3. Marked difficulties in maintaining concentration, persistence or pace; or 4.
Repeated episodes of decompensation, each of extended duration." 20 C.F.R., Part 404, Subpart P,
Appendix 1, Listing 12.02B (emphasis added). Here, the ALl found that plaintiff has mild limitations in
activities of daily living; moderate limitations in both social functioning and concentration, persistence or
pace; and, one or two episodes of decompensation of extended duration during the relevant time period.
(R.20-23).
7
Where "marked" is used as a standard for measuring the degree of limitation, it means more
than moderate but less than extreme. 12.00C. "A marked limitation may arise when several activities or
functions are impaired, or even when only one is impaired, so long as the degree of limitation is such as
to interfere seriously with your ability to function independently, appropriately, effectively and on a
sustained basis." Id.

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As the ALJ properly recognized in his decision, the "limitations identified in the 'paragraph
B' criteria are not a residual functional capacity assessment but are used to rate the severity of
mental impairments at steps 2 and 3." (R. 24). Instead, a mental residual functional capacity
assessment is used at steps 4 and 5 and "requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B .... " (Id.) Thus, "[a]n assessment
of your RFC complements the functional evaluation necessary for paragraphs B and C of the
listings by requiring consideration of an expanded list of work-related capacities that may be
affected by mental disorders when your impairment is severe but neither meets nor is equivalent
in severity to a listed mental disorder." 20 C.F.R., Part 404, Subpart P, Appendix 1, 12.00A.
(emphasis added).
Here, the report upon which plaintiff relies is a residual functional capacity assessment and
addresses plaintiffs ability to perform more specific work-related mental activities rather than the
broad categories found in the B criteria of Listing 12.02, and there is no medical evidence in the
record from any treating or non-treating source suggesting that plaintiff has marked or extreme
limitations in any of the broad categories necessary to meet those criteria. Accordingly, even if
accepted, the residual functional capacity assessment of Dr. Sabo would not support a finding of
disabled at step 3 of the sequential evaluation process.
To the extent plaintiff contends that the ALJ improperly rejected the residual functional
capacity assessments of Dr. Sabo or the report of Dr. Schmidt, or otherwise improperly evaluated
the medical evidence at step 5 ofthe sequential evaluation process, the court can discern no errors
in the ALJ's analysis and is satisfied that his conclusions are supported by substantial evidence.
Under the Social Security Regulations and the law of this circuit, opinions of treating
physicians are entitled to substantial, and at times even controlling, weight.
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20 C.F.R.

§§404.IS27(d)(2) and 416.927(d)(2); Fargnoli, 247 F.3d at 33. 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. However, 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. 20 C.F.R. §§404.IS27(d) and 416.927(d).
Here, the ALJ adhered to the foregoing standards in evaluating the medical evidence. His
decision makes clear that he considered all of the relevant evidence from all medical sources,
including Dr. Sabo and Dr. Schmidt, and provided a detailed analysis ofthat evidence, setting forth
sufficient explanations as to why he rejected or discounted any such evidence. (R. 26-29). The
court finds no error in the ALl's analysis.
Significantly, the ALl expressly addressed the opinion of Dr. Sabo that plaintiffhas marked
or extreme limitations in certain work-related mental activities and adequately explained why he
did not give that opinion controlling weight. (R. 18). In particular, the ALJ emphasized that Dr.
Sabo's assessment is inconsistent with his own treatment notes, other medical evidence of record,
including the reports from Dr. Charles Kennedy, a consultative psychologist, and from a nonexamining state reviewing psychologist8 and also is inconsistent with plaintiff s activities ofdaily
living. The ALJ further noted that Dr. Sabo is not a psychologist or a psychiatrist.

CR. 27).

B
Pursuant to the Regulations, state agency medical consultants are "highly qualified physicians
... who are also experts in Social Security disability evaluation." 20 C.F.R. §§404.1527(f)(2)(i) and
416.927(f)(2)(i). 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 evidence. 20 C.F.R. §§404.1527(f)(2)(ii) and 416.927(f)(2)(ii); SSR 96-6p.

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The ALI also addressed Dr. Schmidt's opinion and noted that it is based on just one
encounter with plaintiff and does not reflect a longitudinal understanding ofher condition. (R.28).
In addition, the ALJ found that Dr. Schmidt's report was based largely on plaintiffs own
SUbjective complaints and that Dr. Schmidt himself noted that plaintiff seemed "eager to call
attention to her symptoms and problems." (R. 28).
Based upon his review ofthe entire record, the ALJ concluded that plaintiffs impairments,
while severe, do not result in the debilitating limitations set forth by Dr. Sabo or Dr. Schmidt, nor
those set forth in a medical sources statement from a Cambria County Mental Health/Mental
Retardation provider in November of 2008. 9 Because those opinions are not supported by the
objective medical evidence and are inconsistent with other substantial evidence in the record,
including their own findings, the ALJ did not err in not giving those opinions controlling, or even
significant, weight. 20 C.F.R. §§404.1527(d) and 416.927(d); SSR 96-2p. Significantly, it also
must be emphasized that the ALJ did not reject the conclusions from Dr. Sabo, Dr. Schmidt or the
Cambria County Mental Health/Mental Retardation provider in their entirety. To the extent their
asserted limitations are supported by the objective evidence, the ALJ did accommodate them in
his residual functional capacity finding by limiting plaintiff to simple, routine tasks involving no
more than simple, short instructions, simple work-related decisions, few work place changes, and
no work at a production-rate pace; limiting her to occasional interaction with supervisors and no
interaction with the public and coworkers other than incidental contact; and limiting her to work
that does not require her to read instructions, write reports, or perform math calculations, such as
teller or cashier work. (R.24).

9
This report, which bears an indecipherable signature, reported that plaintiff has marked
limitations in her ability to do several work-related mental functions such as understanding, remembering
and carrying out detailed instructions and responding appropriately to changes in a routine work setting.
(R.368-370).
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Plaintiff also contends that the ALJ improperly gave minimal weight to several Global
Assessment of Functioning ("GAF") scores below 50 set forth in the record and placed improper
emphasis on plaintiffs better GAF scores found in the record.1O The court finds likewise finds no
error in the ALJ's analysis of this evidence.
The GAF score considers psychological, social and occupational functioning on a
hypothetical continuum of mental health. See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994). Although the use of the GAF
scale is not endorsed by the Social Security Administration because its scores do not have any
direct correlation to the disability requirements and standards ofthe Act, See 65 Fed.Reg. 50746,
50764-65 (2000), as with any other clinical findings contained in narrative reports of medical
sources, the ALJ nevertheless is to consider and weigh those findings under the standards set forth
in the regulations for evaluating medical opinion evidence.

20 C.F .R. §§404.1527( d) and

416.927(d). It is clear from the ALl's decision that he properly did so here by acknowledging
plaintiffs lower scores but adequately explaining why he determined that the higher scores were
more consistent with the objective evidence of record. (R. 27)
In sum, 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 ofthe medical
evidence is supported by substantial evidence.
Plaintiff next contends that the ALJ's credibility determination is not supported by
substantial evidence.

Specifically, plaintiff argues that the ALJ failed to comply with the

A GAF rating of 41-50 indicates "serious" symptoms or "serious" impairment in social and
occupational functioning. A rating of 51 to 60 indicates "moderate" symptoms or "moderate" difficulty
in social or occupational functioning. Id.
10

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appropriate legal standards in concluding that plaintiffs statements concerning the intensity,
persistence and limiting effects of her symptoms were not entirely credible. l1
The court finds no error in the ALl's evaluation of plaintiff s subjective complaints ofpain
and limitations. As required, in assessing plaintiff s credibility the AL] considered plaintiff s
subjective complaints, but also considered those complaints in light of the medical evidence and
all ofthe other evidence ofrecord. 20 C.F.R. §§404.1529(c) and 416.929(c); see also SSR 96-7p.
The AL] did a thorough job in his decision explaining why plaintiffs allegations of disabling
subjective symptoms are not supported by the record, in particular by the objective medical
findings or by plaintiffs self-reported activities of daily living. (R. 25-26). Based upon all ofthe
evidence, the AL] found plaintiff to be not entirely credible as to her allegations of completely
debilitating symptoms and limitations.
Again, it is important to note that while the AL] did not find plaintiffs subjective
complaints entirely not credible. Rather, his decision makes clear that, to the extent plaintiffs
allegations as to the limitations arising from her impairments are supported by the medical and
other evidence, the AL] accommodated those limitations in his residual functional capacity
finding. Only to the extent that plaintiffs allegations are not so supported did the AL] find them
to be not credible.
The record demonstrates that the AL] adhered to the appropriate standards in evaluating
plaintiffs credibility and it is not this court's function to re-weigh the evidence and arrive at its

11
Plaintiff also alleges that the ALl did not discuss the side effects of her medications. This
allegation is belied by the record, as the ALl explicitly noted that "there is no evidence that [plaintiff]
experiences significant side effects from her medications or that her medications have been frequently
changed or the dosages altered due to side effects and/or ineffectiveness." (R.26). The court finds no error
in the AU's consideration of medication side effects. See Burns v. Barnhart, 312 F.3d 112, 131 (3d Cir.
2002)(AU's decision to discount allegations ofside effects supported by substantial evidence where record
contained no medical evidence as to any serious functional limitations arising from any side effects).

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own credibility detennination.

Rather, this court must only detennine whether the ALJ's

credibility detennination is supported by substantial evidence and the court is satisfied that it is.
Plaintiff s final argument is that the ALJ's residual functional capacity finding and resultant
hypothetical to the vocational expert were incomplete because of the ALJ's alleged errors in
weighing the medical evidence and plaintiffs credibility. However, as explained above, the ALJ
properly evaluated the medical evidence and plaintiff s credibility under the appropriate standards.
Moreover, it is clear from the record that the ALJ adequately considered all ofthe relevant medical
evidence, as well as plaintiffs reported activities, in assessing plaintiffs residual functional
capacity, and that he incorporated into his finding all of the limitations that reasonably could be
supported by the medical and other relevant evidence. (R.24-29). The court is satisfied that the
ALJ's residual functional capacity finding is supported by substantial evidence as outlined in the
decision and that the hypothetical to the vocational expert based on that residual functional
capacity finding adequately accounts for all of plaintiffs limitations that are supported by the
objective evidence. Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984)(RFC and hypothetical
to the vocational expert must reflect only those impainnents and limitations supported by the
record).
After carefully and methodically considering all of the medical evidence of record and
plaintiffs testimony, the ALJ detennined that plaintiffis 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 affinned.

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. Gustave Diamond
United States District Judge
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cc:

Jaya A. Shurtliff, Esq.
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller
6000 N. Bailey Ave., Suite 1A
Amherst, NY 14226
Stephanie 1. Haines
Assistant U.S. Attorney
319 Washington Street
Room 224, Penn Traffic Building
Johnstown, PA 15901

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