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Aviles v. Colvin

United States District Court, E.D. Pennsylvania

May 26, 2015

FRANCISCO AVILES
v.
CAROLYN W. COLVIN

ORDER

MITCHELL S. GOLDBERG, District Judge.

AND NOW, this 26th day of May, 2015, upon consideration of Plaintiff's Request for Review, the response and reply thereto, and after careful review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, Plaintiff's objections and the response thereto, I find as follows:

1. Plaintiff, Francisco Aviles, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying his claim for Disability Insurance Benefits under Title II of the Social Security Act ("the Act") and his claim for Supplemental Security Income under Title XVI of the Act.[1]
2. Plaintiff's claim for benefits is based on his mental impairments. After a hearing on December 7, 2011, the Administrative Law Judge ("ALJ") found that Plaintiff was burdened by the severe impairments of major depressive disorder and intermittent explosive disorder. The ALJ however concluded that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with some nonexertional limitatons, and, considering Plaintiff's age, education, work experience, and RFC, the ALJ concluded that Plaintiff could perform jobs that exist in significant numbers in the national economy and was thus not disabled within the meaning of the Act. (R. 15-25.)
3. In his request for review, Plaintiff argues that the ALJ's decision is not supported by substantial evidence, and that his case should be remanded. Specifically, Plaintiff contends that 1) the ALJ erred in failing to fully and fairly develop the medical evidence by refusing to order a psychological consultative examination, including intelligence testing; and 2) the ALJ failed to give appropriate weight to the medical opinions of Plaintiff's treating psychiatrist and the consultative examiner.
4. On October 24, 2014, Magistrate Judge Rueter filed a Report & Recommendation ("R & R") recommending that I deny Plaintiff's request for review. Plaintiff has filed objections and contends that Judge Rueter erred in his treatment of both of Plaintiff's arguments. The Commissioner has responded to these objections. The matter is thus fully briefed and ready for disposition.
5. In his first objection, Plaintiff argues that Judge Rueter erred in concluding that "[P]laintiff cannot establish, and has not established, that a consultative examination with intelligence testing was necessary to enable the ALJ to make the disability decision." (Pl.'s Obj.'s at 2-3 (quoting R & R at 16).) Plaintiff contends that, "based on the administrative record in this case, the requested intelligence testing was necessary to enable the ALJ to make a fair disability determination based on the required fully and fairly developed record." (Id. at 3.)
6. "ALJ's have a duty to develop a full and fair record in social security cases... [and] must secure relevant information regarding a claimant's entitlement to social security benefits." Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). Where a claimant's "medical sources cannot or will not give [the ALJ] sufficient medical evidence about [a claimant's] impairments for [the ALJ] to determine whether [a claimant is] disabled, " the duty to develop the record may include ordering a consultative exam. 20 C.F.R. § 404.1517.
7. The ALJ articulated his rationale for not having ordered a further consultative exam.[2] The ALJ explained that a mental consultative exam with intelligence testing was not necessary since the evidence of record, and particularly the testimony of the state agency medical expert, who reviewed the medical records and examined Plaintiff during the hearing, was sufficient to make a disability determination. Specifically, the ALJ stated:
While [Plaintiff] is of borderline intelligence, there is nothing in the record or in the testimony of the Medical Expert, Dr. Richard Cohen, to warrant further examination.
The Medical Expert, Dr. Richard A. Cohen, does not accept the limits set forth in the existing consultative exam by Dr. [Mark] Wagner, and the record, including [Plaintiff]'s testimony, does not justify Dr. Wagner's limits in his RFC. The Medical Expert, Dr. Richard Cohen, does not find evidence of mental retardation. His work history includes many unskilled jobs where he described termination for absences or "my body was not ready to go to work." None of his mental health treatment records diagnoses mental retardation. None of the Mental RFC's includes any opinion of disability based on mental retardation.
I find that the Medical Expert[']s, Dr. Richard Cohen's, review and testimony have been adequate to explain the record of the claimant's limitations.

(R. 670.)

8. The ALJ relied heavily on Dr. Cohen's opinion in determining that the record was sufficiently complete. I thus view Plaintiff's argument that a consultative exam was necessary to fully and fairly develop the record as an attack on the ALJ's treatment of the medical opinions of record. In this regard, Plaintiff's first objection is closely linked to his second objection that the "Magistrate Judge erred in concluding that the ALJ properly ...

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