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Norris v. Colvin

United States District Court, Eastern District of Pennsylvania

September 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security


John R. Padova, Judge

Plaintiff Delores Norris filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Acting Commissioner of Social Security, Carolyn W. Colvin (“Commissioner”), denying her claim for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383. Pursuant to Local Rule 72.1(d)(1)(C), we referred the case to Magistrate Judge Thomas J. Rueter for a Report and Recommendation (“R&R”). The Magistrate Judge has recommended that Plaintiff’s Request for Review be denied, and Plaintiff has now filed objections to the R&R. For the reasons that follow, we overrule Plaintiff’s objections and adopt the Magistrate Judge’s R&R.


Plaintiff filed an application for SSI on July 15, 2009, alleging that she had become disabled beginning on September 4, 2010.[1] (R. 25, 148.) In her brief in support of her Request for Review, she claims to be disabled by HIV, Hepatitis C, knee arthritis, depression, anxiety, high blood pressure, and obesity. Plaintiff was born on September 4, 1955, and when the Administrative Law Judge (“ALJ”) issued his decision, she was fifty-five years old. (R. 22, 160.) Plaintiff has not worked since 2005, when she was employed as a home health aide. (R. 49, 161.)

The Commissioner denied Plaintiff’s application on December 1, 2009. (R. 79-83.) Plaintiff filed a Request for Hearing by Administrative Law Judge on January 22, 2010. (R. 84-86.) A hearing was held on March 21, 2011, at which Plaintiff; Ms. Lee Levin, a vocational expert (“VE”); and Dr. Sklaroff, a medical expert (“ME”), testified. (R. 38-65.) On May 25, 2011, the ALJ issued an Unfavorable Decision. (R. 22-34.) The ALJ concluded that Plaintiff has not been disabled since June 19, 2009. (R. 25.) He further concluded that Plaintiff has not engaged in substantial gainful activity since June 19, 2009, and that Plaintiff had the following severe impairments: HIV, symptoms of left knee arthritis, obesity, and depressive disorder. (R. 27.) The ALJ acknowledged that Plaintiff alleged additional impairments, but found that they were “not demonstrated by the objective medical evidence of record to impose more than a minimal limitation to the claimant’s ability to perform basic work activities.” (R. 27-28.) The ALJ further found that Plaintiff had the residual functional capacity (“RFC”) to perform medium work but should be limited to unskilled work with reduced concentration and attention demands in a low-stress environment. (R. 29.) Specifically, the ALJ found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” but that Plaintiff’s statements “concerning the intensity, persistence and limiting effects of these symptoms” were “not credible to the extent they were inconsistent with the [RFC].” (R. 30.) Finally, the ALJ found that although Plaintiff was unable to perform any past relevant work, she was not disabled because she could work as a bench work assembler, hand packer, or laundry worker, all jobs that the ALJ found to exist in significant numbers in the national economy. (R. 32-33.)

The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on March 1, 2013 (R. 1-6); therefore, the ALJ’s decision dated May 25, 2011 is the final decision of the Commissioner. See Boniella v. Comm’r of Soc. Sec., 390 F. App’x 122, 123 (3d Cir. 2010); 20 C.F.R. § 416.1400(a). In her request for appellate review, Plaintiff enclosed, among other medical records, an August 23, 2010 x-ray of her left knee showing moderate to severe arthritis and a February 9, 2012 x-ray showing that Plaintiff’s left knee had deteriorated further since the August 23, 2010 x-ray. (R. 5, 495, 533.) Plaintiff filed the instant action on April 17, 2013. The instant Request for Review asserts that the ALJ erred by: (1) determining that she can perform medium, unskilled work with limitations only for reduced concentration and attention, (2) failing to address her testimony in the manner required by law, (3) determining that her mental health status allows a return to full-time competitive employment, (4) failing to pose a complete and proper hypothetical question to the VE, and (5) concluding that the jobs cited by the VE are appropriate for her and that they support a denial at step five of the sequential analysis.[2]

Magistrate Judge Rueter recommended that the ALJ’s determination of Plaintiff’s RFC was not flawed with respect to Plaintiff’s physical impairments because he: (1) properly “found plaintiff’s complaints of knee dysfunction were exaggerated because they were inconsistent with the evidence as a whole” (R&R at 9); (2) properly considered Plaintiff’s complaints of medication-related fatigue when he “recounted plaintiff’s testimony that she experienced significant side-effects from her HIV medication, including fatigue” but discounted Plaintiff’s complaints in part “because plaintiff did not consistently report disabling side-effects to her treating physicians” (id. at 10); and (3) properly considered the effects of Plaintiff’s obesity by giving “‘particular consideration’ to joint disorders” (id. at 11). The Magistrate Judge also determined that the ALJ’s consideration of Plaintiff’s mental limitations was not flawed because he properly assessed the treatment notes of Plaintiff’s treating psychiatrist, as well as the opinion of Mr. Rosenfield, a consultative psychological examiner (id. at 12-17), and Dr. Ira Gensemer, a non-examining consultative psychologist (id. at 15-18). The Magistrate Judge further found that “substantial evidence supports the ALJ’s finding that there were a significant number of jobs in the national economy that Plaintiff can perform” since “at least one of the occupations identified listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled by the VE exists in significant numbers and is not beyond [Plaintiff’s] capabilities.” (Id. at 22 n.14.) The Magistrate Judge also determined that the ALJ’s hypothetical question to the VE was not deficient because the ALJ “was specific as to the limitations possessed by plaintiff in his hypothetical to the VE.” (Id. at 22.) Finally, the Magistrate Judge found that Plaintiff’s “new” evidence cannot serve as the basis for a remand to the Commissioner because the evidence is not new or material and there is no “good cause” for her failure to submit this evidence before the ALJ rendered his decision. (Id. at 23-24.)

Plaintiff asserts three objections to the Report and Recommendation. First, Plaintiff argues that the Magistrate Judge erred in finding that the ALJ properly considered all evidence relevant to Plaintiff’s RFC, specifically, Mr. Rosenfield’s consultative examination report, certain x-ray evidence, and Plaintiff’s testimony regarding her symptoms. Second, Plaintiff argues that the Magistrate Judge erred in finding that the ALJ’s hypothetical question to the VE, which limited Plaintiff to unskilled work with reduced concentration demands in a low-stress environment, sufficiently accommodated her deficits in concentration, persistence, and pace. Third, Plaintiff argues that the Magistrate Judge erred by finding that the ALJ correctly found that she is not disabled at step five of the sequential evaluation process.


Judicial review of the Commissioner’s final decision is limited, and the ALJ’s findings of fact will not be disturbed if they are supported by substantial evidence. Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (citing 42 U.S.C. § 405(g)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .”). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Brownawell, 554 F.3d at 355 (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003); and citing Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008)). The ALJ’s legal conclusions are subject to plenary review. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)).

This Court reviews de novo those portions of a Magistrate Judge’s report and recommendation to which objections are made. 28 U.S.C. § 636(b)(1). We may accept, reject, or modify, in whole or in part, the Magistrate Judge’s findings or recommendations. Id.


A. The ALJ’s RFC Determination

Plaintiff argues that the Magistrate Judge erred in finding that there was substantial evidence to support the ALJ’s RFC finding that she can perform medium work with some limitations. Specifically, Plaintiff argues that: (1) the ALJ did not consider the opinion of Mr. Rosenfield, Social Security’s consultative examiner, that her ability to complete work tasks is poor; (2) x-rays submitted for the first time to the Appeals Council show that she has moderate to severe arthritis in her knee; and (3) the ALJ did not properly assess her testimony regarding the symptoms of her various medical conditions that she claims render her disabled.

1. Mr. Rosenfield’s opinion evidence

Mr. Rosenfield conducted a clinical psychological disability evaluation of Plaintiff on October 23, 2009. (R. 396-402.) He determined that she was moderately depressed, tense, and nervous. (R. 400.) He diagnosed her as follows: AXIS I: “[c]ocaine [d]ependence (in remission);” “Major Depressive Disorder, recurrent, moderate[;]” and “Impulse-Control Disorder NOS” (R. 401); AXIS II: “Borderline Personality Disorder[;]” and AXIS III: “HIV Positive, Hepatitis C, and HTN.” (Id.) He further found that her prognosis is guarded. (Id.) He determined that Plaintiff’s impairments affected her ability to “understand, remember, and carry out instructions.” (Id.) He further determined that Plaintiff had “[s]light” ability to: (1)

“[u]nderstand and remember short, simple instructions, ” (2) “carry out short, simple instructions, ” and (3) “[m]ake judgments on simple work-related decisions.” (Id.) He also determined that Plaintiff had “[m]oderate” ability to: (1) “[u]nderstand and remember detailed instructions, ” (2) “[c]arry out detailed instructions, ” (3) “[i]nteract appropriately with the public, ” (4) “[i]nteract appropriately with supervisor(s), ” (5) “[i]nteract appropriately with co- workers, ” (6) “[r]espond appropriately to work pressures in a usual work setting, ” and (7) “[r]espond appropriately to changes in a routine work setting.” (R. 396.) Mr. Rosenfield further evaluated the effect of Plaintiff’s ...

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