RODGERS v. COLVIN

Filing 16

ORDER denying 8 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 09/24/2014. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARBARA RODGERS,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

Civil Action No. 13-75-J

O R D E R
AND NOW, this 24th day of September, 2014, upon consideration
of the parties= cross-motions for summary judgment, the Court, upon
review of the Commissioner of Social Security=s final decision
re-determining Plaintiff’s eligibility for benefits under 42 U.S.C.
§ 1382c(a)(3)(H)(iii) and denying her claim for supplemental security
income benefits under Subchapter XVI of the Social Security Act, 42
U.S.C. '1381, et seq., finds that the Commissioner=s findings are
supported by substantial evidence and, accordingly, affirms.

See 42

U.S.C. '405(g); Jesurum v. Secretary of U.S. Department of Health &
Human Services, 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan,
970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S.
924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).

See

also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if
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supported by substantial evidence, the Commissioner=s decision must
be affirmed, as a federal court may neither reweigh the evidence, nor
reverse, merely because it would have decided the claim differently)
(citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

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The Court finds no merit in Plaintiff’s position that the
Administrative Law Judge (“ALJ”) erred in finding her to be not
disabled. Plaintiff first argues that her case should be remanded to
the Commissioner to obtain additional information concerning her
previous disability determination pursuant to Social Security Ruling
(“SSR”) 11-2p, 2011 WL 4055665 (S.S.A.) (Sept. 12, 2011). Plaintiff,
of course, acknowledges that this ruling had not been issued prior
to the ALJ’s decision, but apparently believes that this case should
be remanded so that the ALJ can re-evaluate the case in light of the
ruling. As the Commissioner points out, the courts to have ruled on
the issue have found that SSR 11-2p has no application when an ALJ
has issued his or her decision prior to the ruling’s effective date
of September 12, 2011. See Reid v. Colvin, 2013 WL 1729491, at *8 n.4
(D. S.C. Apr. 22, 2013); Lancaster v. Astrue, 2012 WL 6652539, at *3
(E.D. Ken. Dec. 20, 2012). Regardless, nothing in that ruling is
inconsistent with the ALJ’s analysis. Plaintiff herself acknowledges
that the ruling states that the medical improvement review standard
is not used for continuing disability reviews in age-18
re-determinations. See 2011 WL 4055665 (S.S.A.) at *3 n.14, *15. The
Court notes that Section IV(E)(2) of SSR 11-2p provides merely that,
absent medical improvement or new evidence demonstrating a prior error,
a young adult who had limitations as a child “will probably” or “likely”
have similar limitations as an adult. Id. at *16. In any event,
substantial evidence supports the ALJ’s decision. Plaintiff was found
to be disabled as a child effective December 1, 2004, approximately
four and a half years before she received notice that she was no longer
disabled as an adult as of June 1, 2009. The ALJ carefully considered
and discussed the progress of Plaintiff’s conditions going forward.
Indeed, contrary to Plaintiff’s claims, there was a great deal of record
evidence regarding Plaintiff’s mental, psychological, and educational
condition from the time she was initially awarded benefits as a child,
including the determination itself (R. 148-74, 236-75), and there was
likewise a significant amount of evidence from the period between 2004
and 2009. The ALJ, in fact, specifically referred to and acknowledged
this evidence. (R. 16).
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Plaintiff also argues that the ALJ failed to account for certain
of her impairments, particularly her anxiety disorder. She argues,
for instance, that the ALJ’s residual functional capacity (“RFC”)
findings “do not include any limitations resulting from her anxiety
disorder.” Doc. No. 9 at 9 (emphasis added). However, she apparently
ignores the fact that the ALJ’s RFC findings limited her to simple,
routine, repetitive, low stress work involving no deadlines or a
fast-paced production environment and the fact that the findings
required her to avoid interaction with the public and teamwork jobs
and limited her to occasional interaction with supervisors and
co-workers and to object-oriented work. (R. 12). These findings more
than adequately addressed Plaintiff’s anxiety-related symptoms. To
the extent that Plaintiff argues that additional restrictions were
warranted, the Court notes that the ALJ did not find Plaintiff’s
testimony regarding her symptoms to be entirely credible, and
substantial evidence supports that decision. Indeed, both consulting
professionals, Dr. Kim Foster, Ph.D., and Steven Hand, M.A., indicated
that Plaintiff may be a malingerer. (R. 335, 342-343). Moreover, as
the ALJ pointed out, Plaintiff’s testimony at her hearing was
contradicted by other record evidence, including her mother’s
testimony. (R. 17).
Plaintiff apparently believes that Ramirez v. Barnhart, 372 F.3d
546 (3d Cir. 2004), calls for a different result. However, this belief
is based on her mis-reading and/or mis-application of the holding in
that case. First, in Ramirez, the ALJ had found that the claimant
“often” suffered from deficiencies of concentration, persistence, or
pace, resulting in a failure to complete tasks in a timely manner,
and the Third Circuit Court of Appeals held that the ALJ’s RFC
determination that the claimant was limited to simple, repetitive one
or two-step tasks did not sufficiently take the claimant’s deficiencies
into account. Here, the ALJ found that Plaintiff had moderate
limitations in concentration, persistence, or pace, as the Social
Security regulations pertaining to mental impairments were revised,
and the evaluation of concentration, persistence, and pace was changed
from a five-point scale based on the frequency of the deficiencies
to the current five-point severity scale. See Reynolds v.
Commissioner of Soc. Sec., 2011 WL 3273522, at *13 (W.D. Pa. July 29,
2011). Although both “often” and “moderate” occupy the middle
position in their respective scales, more recent Third Circuit
decisions have distinguished Ramirez based on the difference between
“often” suffering from these deficiencies and being “moderately”
limited in those areas. See McDonald v. Astrue, 293 Fed. Appx. 941,
946-47 (3d Cir. 2008) (noting that the ALJ properly accounted for his
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for
Summary Judgment (document No. 8) is DENIED and Defendant=s Motion for
Summary Judgment (document No. 12) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

finding that the claimant had moderate limitations in concentration
by limiting him to simple, routine tasks). See also Menkes v. Astrue,
262 Fed. Appx. 410, 412 (3d Cir. 2008) (“Having previously acknowledged
that [the claimant] suffered moderate limitations in concentration,
persistence and pace, the ALJ [properly] accounted for these mental
limitations in the hypothetical question by restricting the type of
work to ‘simple routine tasks.’”). The continuing validity of Ramirez
under the new severity scale, therefore, is questionable.
More importantly, though, in Ramirez, the ALJ had limited the
claimant to simple, repetitive one or two-step tasks. Here, as
discussed, the mental limitations found by the ALJ in the RFC were
far more extensive and specific. Plaintiff was limited not only to
simple, routine, repetitive work, but also to work that was low stress,
involving no deadlines or a fast-paced production environment, and
Plaintiff was also severely restricted as to her ability to work with
others and with the public.
(R. 12). These limitations go far beyond
a limitation to simple, repetitive one or two-step tasks and properly
accounted for Plaintiff’s deficiencies in concentration, persistence,
and pace and her anxiety-related symptoms.
Plaintiff’s additional arguments merit little discussion.
Suffice it to say that the ALJ adequately considered and discussed
the opinion evidence and Plaintiff’s global assessment of
functioning scores. In regard to the weight accorded to the
opinion of Dr. Foster, the Court notes, as discussed above, that
both Dr. Foster herself and the other consulting professional,
Mr. Hand, indicated that Plaintiff may be a malingerer. (R. 335,
342-343). Accordingly, substantial evidence supports the ALJ’s
decision.

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