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Nestor v. Colvin

United States District Court, E.D. Pennsylvania

September 15, 2014

CAROLYN W. COLVIN, Commissioner of Social Security


RICHARD A. LLORET, Magistrate Judge.

Anne M. Nestor has brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security denying her claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. Nestor alleges that the Commissioner committed reversible error by (1) failing to find that Nestor's alleged cognitive impairment is a severe impairment; (2) failing to incorporate all of Nestor's alleged limitations into the hypothetical posed to the vocational expert; and (3) failing to properly assess the credibility of Nestor's testimony. Nestor seeks summary judgment in her favor or, in the alternative, that the case be remanded for further proceedings. After careful consideration, I find Nestor's claims to be without merit. Accordingly, I respectfully recommend that Nestor's Request for Judicial Review be DENIED, the decision of the Commissioner be AFFIRMED, and the matter DISMISSED with prejudice.


An Administrative Law Judge ("ALJ") denied Nestor's claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on January 27, 2012. Applying the five-step sequential analysis, [1] the ALJ found that Nestor had not engaged in substantial gainful activity since July 26, 2009, the alleged onset date. R. 10. The ALJ determined that Nestor suffered from the following severe impairments: mood disorder and diabetes mellitus with loss of visual field. Id. Neither of these impairments met the listed criteria for a per se finding of disability. R. 11-13. The ALJ found that Nestor had the residual functional capacity to perform the full range of light work as defined by 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the exception of only being able to perform "simple, repetitive, routine tasks in jobs not requiring depth perception." R. 13. More specifically, the ALJ found that the jobs that Nestor can perform, that exist in significant numbers in the economy, are those of a racker in a bakery and a cleaner. R. 17. On February 6, 2013, the Appeals Council denied Nestor's appeal, making the ALJ's opinion the final ruling of the Commissioner. R. 2-4. For the reasons set forth below, I find that the ALJ's opinion is supported by substantial evidence.


Anne Marie Nestor was 52 years old in January 2010 when she filed for DIB and SSI. R. 131. She was 54 at the time of the ALJ's decision denying her claims. R. 14. Nestor is originally from Haiti, and has an eighth grade education level. See R. 12, 14, 29. She has been in the United States since 1976, when she moved to New York. R. 401. Nestor moved from New York to Philadelphia in approximately 2008. See id. The record suggests that Nestor likely has a history of developmental delay and learning disorders, although the record contains no definitive diagnosis. See, e.g. R. 347, 368, 372, 405. In 2011, approximately one year after filing her initial claim for DIB and SSI, Nestor began to seek medical evaluation for memory loss and possible cognitive disorders. See R. 368-73. It is those alleged disabilities that are at the heart of Nestor's current motion. Nestor's medical records do not contain a diagnosis for any condition that would cause memory loss, or of which memory loss is a predominant symptom. Her records do indicate that Dr. Annemarie Gaskin, of the Sleep Disorders Center, has ordered a variety of tests to rule out a variety of conditions that might cause or explain memory loss:

I have asked her to get MRI of the brain with and without contrast to rule out structural abnormalities as well as an infectious process. She has traveled and concern for a parasite infection is contemplated as well. EEG to look for encephalopathy is recommended. I have also recommended a slew of blood work to rule out infectious and autoimmune processes. Alzheimer's disease should be considered as well despite the early age. Also pseudodementia related to underlying psychiatric disease is also to be considered. I have recommended neuropsychiatric testing.

R. 372. There is nothing in the record to show whether any of the recommended testing was done, or what outcomes were reported.


A claimant is disabled if she is unable 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." 20 C.F.R. § 416.905; see also Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009). In reviewing an ALJ's disability determination, I must accept all the ALJ's fact findings if supported by substantial evidence or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390 (1971)(citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). However, with respect to the ALJ's legal conclusions and application of legal principles, I must conduct a "plenary review." Payton v. Barnhart, 416 F.Supp.2d 385, 387 (E.D. Pa. 2006).

Here, Nestor contends that the ALJ erred (1) by failing to find that Nestor has a cognitive disorder that amounts to a severe impairment; (2) by failing to incorporate all of Nestor's conditions into the hypothetical the ALJ posed to the Vocational Expert; and (3) by failing to properly assess Nestor's credibility. See generally, Pl.'s Br. and Stmt. of Issues in Supp. of Req. for Judicial Rev ("Pl.'s Br."). After careful, independent review of the record, I find the ALJ's opinion to be supported by substantial evidence.[2]

A. Nestor Does Not Have a Diagnosed Cognitive Disorder

Nestor alleges that the ALJ erred in failing to find that her cognitive disorder amounts to a severe impairment. The Commissioner contends that the record does not support a finding of severe impairment. See Def.'s Resp. to Req. for Rev. of Pl. at 3-5 ("Def.'s Resp."). I agree with the Commissioner. Nestor contends that important medical reports were ignored, and that she "suffer[s] from a Cognitive Disorder which has been provisionally diagnosed as Alzheimer's Dementia." Pl.'s Br. at 9; Pl.'s Reply Br. at 1. After a careful review of the record, I find both of these claims to be without merit.

The ALJ gave a lengthy explanation of the evidence of record, and provided a detailed discussion of the evidence he credited and discredited, and his reasons for doing so. The ALJ gave "great weight" to the psychiatric evaluation of Dr. Harold Graff of Northwestern Health Service ("NHS") - the facility where Nestor has gone for treatment. The ALJ gave great weight to Dr. Graff's conclusion that Nestor "may have some mild short term memory loss, but her mental status does not show any severe problems" because Dr. Graff's assessment "is consistent with the psychiatric treatment notes, his assessed GAF score, the claimant's activities of daily living, and the record as a whole." R. at 15. Additionally, the ALJ discussed and explained his reasons for failing to credit a single GAF score of 40. Id. "I do not credit the GAF score of Dr. Petrovic as it appears inconsistent with the benign findings in the Northwest Human Services treatment notes and represents only a snapshot in the claimant's functioning." Id. While the ALJ did not discuss the medical records pertaining to Nestor's two visits to Dr. Gaskin, he did cite to the records, and acknowledged, accurately, "this condition was not confirmed with evaluation, there has been no diagnosis... and the treatment records show the claimant's concentration to be normal." R. 11 (ALJ Opinion); R. 372 (Dr. Gaskin's Report, cited to ...

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