FOOR v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION and ORDER denying 12 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/21/19. (cha)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDWARD. FOOR,
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)
)
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)
)
)
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)
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Plaintiff,
-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Action No. 18-64
AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Edward Foor (“Foor”) seeks judicial review of the Social Security
Administration’s denial of his claims for supplemental security income (“SSI”), for a
period of disability and for disability insurance benefits (“DIB”).1 Foor alleges a disability
onset date of November 1, 2012. (R. 15) The ALJ denied his claim following a hearing
at which both Foor and a vocational expert (“VE”) appeared and testified. Foor then
appealed. Before the Court are the parties’ cross-motions for summary judgment. See
ECF Docket Nos. 12 and 16. For the reasons set forth below, the ALJ’s decision is
affirmed.
Opinion
1. Standard of Review
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The ALJ determined that Foor met the insured status requirements of the Social Security Act through March 31,
2014. (R. 18)
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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)6 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.
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1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995
(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 Foor’s claim for benefits. More specifically, at
step one of the five step analysis, the ALJ found that Foor had not engaged in
substantial gainful activity since the application date. (R. 18) At step two, the ALJ
concluded that Foor suffers from the following severe impairments: status post lumbar
surgery three times, status post cervical fusion surgery, tobacco abuse, obesity,
hepatitis C, hypertension, narcotic drug overdose episodes two times, history alcohol
abuse disorder in remission, heroin use disorder in remission, anxiety and recurrent
major depressive disorder, long term opioid analgesic, post-laminectomy syndrome,
failed-back syndrome, lumbar spinal stenosis, intermittent explosive disorder, marijuana
use disorder in remission, PTSD, and panic disorder. (R. 18) At step three, the ALJ
concluded that Foor 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. 18) Between steps three and four, the ALJ found that Foor has the
residual functional capacity (“RFC”) to perform sedentary work with certain restrictions.
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(R. 20-24) At step four, the ALJ found that Foor is unable to perform his past relevant
work. (R. 24-25) Ultimately, at the fifth step of the analysis, the ALJ concluded that,
considering Foor’s age, education, work experience, and RFC, there are jobs that exist
in significant numbers in the national economy that he can perform. (R. 25-26)
III. Discussion
As stated above, in formulating Foor’s residual functional capacity, the ALJ
concluded that, with certain restrictions, he was able to perform sedentary work. (R. 20)
In arriving at this conclusion, the ALJ gave “some weight” to the opinion offered by Dr.
Johnson, Foor’s pain management specialist. (R. 23-24) He gave “little weight” to the
opinion proffered by Dr. Schmuckler, Foor’s treating physician. (R. 24) Similarly, he
gave “little weight” to the opinion offered by psychiatrist Dr. Bermudez. (R. 24) Foor
takes exception to the ALJ’s conclusion in each of these respects.
The amount of weight to be accorded to medical opinions is well-established.
Generally, the ALJ will give more weight to the opinion of a source who has examined
the claimant than to a non-examining source. 20 C.F.R. § 404.1527(c)(1). In addition,
the ALJ generally will give more weight to opinions from a treating physician, “since
these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” Id., § 404.1527(c)(2). The opinion of a treating
physician need not be viewed uncritically, however. Rather, only when an ALJ finds that
“a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
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impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence [of]
record,” must he give that opinion controlling weight. Id. Unless a treating physician’s
opinion is given controlling weight, the ALJ must consider all relevant factors that tend
to support or contradict any medical opinions of record, including the patient / physician
relationship; the supportability of the opinion; the consistency of the opinion with the
record as a whole; and the specialization of the provider at issue. Id., § 404.1527(c)(1)(6). “[T]he more consistent an opinion is with the record as a whole, the more weight
[the ALJ generally] will give to that opinion.” Id., § 404.1527(c)(4).
In the event of conflicting medical evidence, the Court of Appeals for the Third
Circuit has explained:
“A cardinal principle guiding disability determinations is that the ALJ accord
treating physicians’ reports great weight, especially ‘when their opinions 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. 2000),
quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, “where …
the opinion of a treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit” and may reject the
treating physician’s assessment if such rejection is based on contradictory
medical evidence. Id. Similarly, under 20 C.F.R. § [404.1527]([c])(2), the opinion
of a treating physician is to be given controlling weight only when it is wellsupported by medical evidence and is consistent with other evidence in the
record.
Becker v. Comm’r. of Soc. Sec. Admin., 403 Fed. Appx. 679, 686 (3d Cir. 2010). The
ultimate issue of whether an individual is disabled within the meaning of the Act is for
the Commissioner to decide. Thus, the ALJ is not required to afford special weight to a
statement by a medical source that a claimant is “disabled” or “unable to work.” See 20
C.F.R. § 404.1527(d)(1), (3); Dixon v. Comm’r. of Soc. Sec., 183 Fed. Appx. 248, 251-
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52 (3d Cir. 2006) (“[O]pinions on disability are not medical opinions and are not given
any special significance.”).
Although the ALJ may choose whom to credit when faced with a conflict, he
“cannot reject evidence for no reason or for the wrong reason.” Diaz v. Comm’r. of Soc.
Sec., 577 F.3d 500, 505 (3d Cir. 2009). The ALJ must provide sufficient explanation of
his final determination to provide a reviewing court with the benefit of the factual basis
underlying the ultimate disability finding. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981). In other words, the ALJ must provide sufficient discussion to allow the 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).
In this case, Foor spends a significant portion of his brief describing how the
medical evidence supports his physicians’ opinions and thus his claim for disability. The
standard, however, is not whether there is evidence to establish the claimant’s position,
but, rather, is whether there is substantial evidence to support the ALJ’s findings. See
Allen v. Bowen, 881 37, 39 (3d Cir. 1989). As courts have explained:
[The] question is not whether substantial evidence supports Plaintiff’s claims, or
whether there is evidence that is inconsistent with the ALJ’s finding …
Substantial evidence could support both Plaintiff’s claims and the ALJ’s finding
because substantial evidence is less than a preponderance. Jesurum v. Sec’y. 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
finding, it does not matter if substantial evidence also supports Plaintiff’s claims.
Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003).
Hundley v. Colvin, Civ. No. 16-153, 2016 WL 6647913, at * 2 (W.D. Pa. Nov. 10, 2016).
Thus, Foor’s argument in this regard is misplaced.
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To the extent that Foor argues that substantial evidence does not support the
ALJ’s decision to assign little weight to Johnson’s, Schmuckler’s and Bermudez’s
opinions, I disagree. As stated above, an ALJ is not required to accept a treating
provider’s opinion uncritically. Rather, the ALJ must weigh all of the record evidence as
set forth above. In the case at hand, the ALJ did exactly that. As shown more fully
below, the ALJ reviewed in detail all of the evidence and then properly assigned
appropriate weight to the opinion evidence, including the opinions of Foor’s treating
providers.
(a) Dr. Johnson
Dr. Johnson completed a Medical Source Statement dated December 23, 2015,
in which he opined that, in an eight-hour workday, Foor could stand / walk four hours; sit
four hours; occasionally lift between 11-20 pounds; and use his hands for simple
grasping, pushing / pulling, and fine manipulation. (R. 895) Johnson also concluded that
Foor would be able to bend, squat, crawl, and climb “occasionally.” (R. 896) Given all of
these limitations, he found that Foor would not be able to function, because of his
medical condition, on a daily basis, eight-hours a day. He also anticipated that Foor
would experience “significant exacerbation” of his symptoms 5-10 days per month which
could prevent him from leaving his home. (R. 896)
The ALJ “gave great weight to the specific functional limitations opined to in the
statement” explaining that he did so because “they are consistent with treatment
findings.” (R. 24) However, the ALJ declined to give great weight to Johnson’s
conclusion that that Foor’s pain condition rendered him “unable to carry out day-to-day
activity in any reliable manner to allow employment.” (R. 24) The ALJ explained that an
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opinion on whether an individual is disabled relates to an issue reserved to the
Commissioner and, as such, is not entitled to any deference. As stated above, this is an
appropriate basis for discounting an opinion. See 20 C.F.R. § 404.1527(d)(1), (3); Dixon
v. Comm’r. of Soc. Sec., 183 Fed. Appx. 248, 251-52 (3d Cir. 2006) (“[O]pinions on
disability are not medical opinions and are not given any special significance.”). The ALJ
further explained that he discounted Johnson’s opinion because the evidence does not
support a finding that Foor is limited to this degree and that “recent evidence indicates
improvement in his pain with the Dilaudid pump, which is not accounted for in this
opinion.” Again, these are appropriate bases for discounting opinion evidence. See
Goldberg v. Colvin, Civ. No. 13-06055, 2015 WL 1138021, at * 10 (D.N.J. Mar. 13,
2015) (stating that an ALJ may reject a treating physician’s opinion if it is inconsistent
with the physician’s treatment notes or due to a lack of supporting evidence) Further,
substantial evidence supports the ALJ’s finding in this regard. (R. 21, 1391, 1467) In
short, the ALJ has sufficiently explained his decision, that decision is in accordance with
the law and is supported by substantial evidence of record. The Court cannot reweigh
the evidence. As such, there is no basis for remand.
(b) Dr. Schmuckler
Dr. Schmuckler, Foor’s primary care physician, also provided a Medical Source
Statement. Schmuckler opined that, in an eight-hour workday, Foor could stand / walk
two hours and could sit for two hours. (R. 923) He further stated that Foor could
occasionally lift up to 5 pounds and that he could use his hands on a repetitive basis for
simple grasping, pushing and pulling, and fine manipulation. (R. 923) He represented
that Foor could not use his foot in a repetitive manner to operate foot controls, but that
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he could occasionally bend and crawl, but could never squat or climb. (R. 924)
Schmuckler opined that Foor would not be able to function because of his medical
condition, on a daily basis, eight-hours a day. He also anticipated that Foor would
experience “significant exacerbation” of his symptoms, on at least 15 days per month
which could prevent him from leaving his home. (R. 924) Schmuckler explained that
Foor’s back pain is “so debilitating” that he cannot remain in one position for any length
in time without lengthy breaks and that the pain is so distracting as to prevent him from
being able to perform complex tasks. (R. 925) Schmuckler added that Foor’s depression
is so severe as to frequently prevent him from getting out of bed; that his PTSD makes
him anxious around people and disturbs his concentration. (R. 925)
The ALJ gave little weight to Schmuckler’s opinion, finding the functional
limitations to be inconsistent with the medical evidence. Again, as stated above,
inconsistency and lack of support are valid and acceptable factors in weighing opinion
evidence. See 20 C.F.R. § 404.1527. Further, substantial evidence supports his
decision in this regard. For instance, Schmuckler’s opinion was at odds with the opinion
proffered by Dr. Fox, the state agency physician, who concluded that Foor could
perform light work with certain restrictions. (R. 77-78) The ALJ gave great weight to that
opinion. (R. 23) Further, as the ALJ observed, like Johnson, Schmuckler’s opinion did
not account for Foor’s use of the Dilaudid pump. (R. 24) For all of these reasons, I find
that the ALJ properly discounted Dr. Schmuckler’s opinion.
(c) Dr. Bermudez
Dr. Bermudez, Foor’s treating psychiatrist, completed a Mental Status
Questionnaire in March of 2017. (R. 1475-1478) She described Foor’s functional
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limitations arising from his conditions as “marked” with respect to activities of daily living
and social functioning and “extreme” with respect to concentration, persistence and task
completion. (R. 1476-77) Bermudez explained that Foor presents with severe
depression alternating with irritability and lack of sleep with rapid speech. (R. 1478) She
opined that he has poor coping skills, is easily overwhelmed, has difficulty following
simple directions, and often suffers panic attacks. (R. 1478) The ALJ gave little weight
to Bermudez’s opinion, finding it inconsistent with the treatment records. (R. 24) The
ALJ also noted that Foor’s psychiatric treatment has been conservative and that there
has been no history of inpatient treatment which is also inconsistent with the severity of
limitations Bermudez indicated. (R. 24) These are appropriate bases for discounting
opinions. See Goldberg v. Colvin, Civ. No., 13-06055, 2015 WL 1138021, at * 10
(D.N.J. Mar. 13, 2015) (an ALJ may reject a treating physician’s opinion if it is
inconsistent with treatment notes) and Moore v. Colvin, 239 F. Supp.3d 845, 859 (D.
Del. (2017) (conservative and routine treatment history is an appropriate basis for
discounting a physician’s opinion). Moreover, substantial evidence supports the ALJ’s
findings in these respects. For instance, as the ALJ observed, Bermudez found that
Foor had “goal directed thought processes, rational thought content, no evidence of
psychosis, suicidal, or homicidal ideations, good insight, and intact judgment.” (R. 24,
citing Ex. 46F at 2) Bermudez also recorded Foor as having fair hygiene, relaxed motor
activity, cooperative interpersonal skills, a normal affect, attention span, thought process
and speech, no evidence of delusions or hallucinations, and intact insight and judgment.
(R. 1481) Further, Bermudez noted medications prescribed for Foor’s treatment, but the
record is devoid of any indication that Foor was ever hospitalized for inpatient treatment.
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In sum, the ALJ’s decision was supported by substantial evidence of record and was
made in accordance with the law. As such, there is no basis for remand.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDWARD FOOR
Plaintiff,
)
)
)
)
)
)
)
)
)
)
-vsNANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Action No. 18-64
AMBROSE, Senior District Judge.
ORDER OF COURT
Therefore, this 21st day of March, 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. 16) 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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