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Weaver v. Colvin

United States District Court, Middle District of Pennsylvania

July 29, 2014

JACK L. WEAVER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION DOCS. 1, 7, 8, 13, 14

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Jack L. Weaver's applications for social security disability insurance benefits and supplemental security income benefits. The crux of Plaintiffs appeal is that the Administrative Law Judge ("ALJ") erred in discrediting a report by Dr. John Kelsey that Plaintiff suffered marked, not moderate, limitations in interacting with coworkers and supervisors, a report by Dr. Kathy Nase that Plaintiff would be absent from work more than three days per month and unable to attend work regularly and on time, and Plaintiffs testimony that work stress, panic attacks, and angry outbursts precluded him from maintaining full-time employment. For the reasons that follow, the Court finds that the ALJ had substantial evidence to find that Plaintiff suffered only a moderate limitation in interacting with co-workers and supervisors, that Plaintiff would be able to attend work regularly and on time, that Plaintiff could tolerate low work stress, and that Plaintiff’s panic attacks and angry outbursts would not preclude him from working full-time. Therefore, the Court recommends that Plaintiff’s appeal be denied and his case closed.

II. Procedural Background

On April 20, 2010, Jack L. Weaver (“Plaintiff”) filed an application for Supplemental Security Income benefits under Title XVI of the Social Security Act and for disability insurance benefits under Title II of the Social Security Act. (Tr. 150-157). On August 13, 2010, the Bureau of Disability Determination[1] denied this application, and Plaintiff filed a request for a hearing on October 8, 2010. (Tr. 65-90). On October 14, 2011, a hearing was held before an ALJ at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified (Tr. 10-29). At the hearing, Plaintiff’s attorney acknowledged a prior decision dated January 21, 2009 and conceded that res judicata applied to that decision. (Tr. 16). On October 31, 2011, the ALJ found that Plaintiff was not disabled and thus was not entitled to benefits. (Tr. 44-62). On November 11, 2011, Plaintiff filed a request for review with the Appeals Council (Tr. 8), which the Appeals Council denied on December 11, 2012, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-7).

On February 8, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g), to appeal the decision of the Commissioner. (Doc. 1). On April 29, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 7, 8). On June 26, 2013, Plaintiff filed a brief in support of his appeal (“Pl. Brief”) (Doc. 13). On July 25, 2013, Defendant filed a brief in response (“Def. Brief”) (Doc. 14). On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564 (1988); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); Johnson, 529 F.3d at 200.

Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only “more than a mere scintilla” of evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).Substantial evidence may be less than a preponderance. Jones, 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner’s determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). To receive disability or supplemental security benefits, Plaintiff must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that he has a physical or mental impairment of such a severity that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

A five-step evaluation process is used to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Plummer, 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed any further. See 20 C.F.R. §§ 404.1520, 416.920. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals a listed impairment; (4) whether the claimant’s impairment prevents the claimant from doing past relevant work; and (5) whether the claimant’s impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).

RFC is an assessment of the most a claimant can do on a regular and continuing basis despite credible limitations. 20 C.F.R. § 404.1545(a). It is an administrative assessment, based on all the evidence, of how a claimant’s impairments and related symptoms affect her ability to perform work-related activities. Id.; see also SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 126 (Supp. 2013) (“The term ‘residual functional capacity assessment’ describes an adjudicator’s findings about the ability of an individual to perform work-related activities.”); SSR 96-8p, West’s Soc. Sec. Reporting Serv., 144 (Supp. 2013) (“RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s) . . . may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.”).

An ALJ must determine the weight to be given to medical opinions in making RFC assessments. The Social Security Regulations state that when the opinion of a treating physician is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, ” it is to be given controlling weight. 20 C.F.R. § 416.927(d)(2). 20 C.F.R. §404.1527(c) establishes the factors to be considered by the ALJ when the opinion of a treating physician is not given controlling weight. Under 20 C.F.R. §§404.1527(c)(1) and (2), the opinions of treating physicians are given greater weight than opinions of non-treating physicians and opinions of examining physicians are given greater weight than opinions of non-examining physicians. 20 C.F.R. §404.1527(c)(2) also differentiates among treating relationships based on the length of the treating relationship and the nature and extent of the treating relationship. 20 C.F.R. §404.1527(c)(4) states that “the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.” 20 C.F.R. §404.1527(c)(5) provides more weight to specialists, and 20 C.F.R. §404.1527(c)(6) allows consideration of other factors which “tend to support or contradict the opinion.”

Internal inconsistencies are acceptable reasons for rejecting a treating physician’s opinion. For instance, in Plummer v. Apfel, 186 F.3d 422, 430 (3d Cir. 1999), the ALJ rejected the opinion of claimant’s treating physician that claimant could not use her hands at all. The ALJ explained that she rejected this opinion because the same physician had consistently noted that the only limitation on the use of claimant’s hands was repetitive fine finger manipulation and/or handling, and was therefore internally inconsistent with his limitation that claimant could not use her hands at all. The opinion was also inconsistent with other physicians who reported only a limitation on repetitive fine finger manipulation and/or handling. However, when using internal inconsistencies to discredit a treating physician’s report, the internal discrepancies must be truly contradictory:

The ALJ's decision to discredit Dr. Picciotto, the consultative psychological examiner who evaluated Brownawell in December 2000, is similarly improper. Dr. Picciotto provided a medical source statement which indicated that Brownawell “had poor ability (no ability) [sic] to function in several areas.” A.R. at 303. The ALJ discounted this finding because it “was inconsistent with and unsupported by the text of the evaluation and the clinical signs and findings in the remaining medical record.” Id. In support of this contention, the ALJ notes that Dr. Picciotto “stated that [Brownawell] has no ability to maintain attention or concentration [but] he reported in the text of the evaluation that [she] has good focus, good attention, and good concentration.” These assessments are not necessarily contradictory, however, as one assessment was describing Brownawell's condition at the time of Dr. Picciotto's examination and the other reflected Dr. Picciotto's assessment of Brownawell's ability to function in a work setting. As discussed supra, this Court has admonished ALJs who have used such reasoning, noting the distinction between a doctor's notes for purposes of treatment and that doctor's ultimate opinion on the claimant's ability to work. See Morales, 225 F.3d at 319.

Brownawell v. Comm'r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008).

At step four, the ALJ applies the claimant’s RFC to past relevant work to determine if the claimant can still perform past relevant work. If the claimant cannot perform past relevant work, the ALJ must produce substantial evidence, generally in the form of expert testimony, that claimant would be able to perform other work. The ALJ must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity. 20 C.F.R. § 404.1520(f). The ALJ must analyze the cumulative effect of all the claimant's impairments in determining whether she is capable of performing work and is not disabled.

The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that she is unable to engage in past relevant work. In other words, the Plaintiff bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show that jobs exist in the national economy that a person with the claimant’s abilities, age, education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden ...


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