United States District Court, W.D. Pennsylvania
July 7, 2015
ERIC ALLEN CUMMINGS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
ERIC ALLEN CUMMINGS, Plaintiff: Kenneth R. Hiller, LEAD
ATTORNEY, Law Offices of Kenneth Hiller PLLC, Amherst, NY.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant: Christian A. Trabold, LEAD ATTORNEY, United States
Attorney's Office, Erie, PA.
F. McVerry, Senior United States District Judge.
Allen Cummings (" Plaintiff" ) has filed this
action for judicial review of the decision of the Acting
Commissioner of Social Security, which denied his
applications for disability insurance benefits ("
DIB" ) and supplemental security income ("
SSI" ) under Titles II and XVI of the Social Security
Act (" Act" ), 42 U.S.C. § § 401-403,
1381-1383. Pending before the Court are the parties'
cross-motions for summary judgment. ECF Nos. 9, 13. The
motions have been fully briefed and are ripe for disposition.
ECF Nos. 10, 14, 15. For the reasons that follow, the Acting
Commissioner's motion will be GRANTED, and
Plaintiff's motion will be DENIED.
is a 47-year-old high school graduate with two years of
college education. He worked as an auto mechanic, baker's
assistant (a job he held for just two weeks), and laborer for
Zambelli's Fireworks, but he stopped working for
Zambelli's in 2009 because he failed a background check.
He hasn't worked since. He alleges that he has been
disabled since September 10, 2005, due to a myriad of
impairments, but his back pain is the focus of this appeal.
back pain began in 2003. (R. 241). A few years later, he was
diagnosed with a ruptured disc. (R. 344). He underwent a L3-4
discectomy to remove the damaged portion of his spine on
April 25, 2006. (R. 312). At a June 2006 follow up, Plaintiff
said that he continued to experience pain and spasms in his
lower back, but the pain was not as bad as it had been before
his surgery. (R. 343). His surgeon, William Welch, M.D.,
believed that his recovery was going well and that the pain
would continue to subside over time. Id. After the
initial follow-up, Dr. Welch referred Plaintiff to physical
therapy (" PT" ). Id. Plaintiff only
attended six PT sessions, however, cancelling four others and
failing to show for one because he was either " out
golfing" or could not get a ride (Plaintiff has had four
DUI convictions, and so he does not have a driver's
license). (R. 236, 358). He was discharged from PT on July
17, 2006, due to his non-compliance and lack of attendance.
(R. 356, 358). At his last session on July 5, Plaintiff rated
his pain at 3/10, and an examination showed full active range
of motion of the lumbar spine, with 4/5 strength. (R. 358).
Plaintiff's time in PT during the summer of 2006, there
is a gap in the record, until March 20, 2008, when he
underwent a physical with his primary care physician, Gerald
Kahler, M.D., following his release from jail. (R. 350).
Plaintiff complained of continuing back pain and claimed that
the 2006 surgery failed to provide him any relief.
Id. He had been taking ibuprofen to manage the pain.
Id. Dr. Kahler noted that Plaintiff's "
lumbar spinous processes" were tender, and, in
terms of range of motion, Plaintiff had 50° of flexion,
15° of extension, and 15° of lateral motion. (R.
351). He had normal stability, strength, and tone in his
lower extremities. Id. Dr. Kahler prescribed
Anaprox-DS and Methocarbamol for Plaintiff's pain.
Id. Although Plaintiff was instructed to follow up
in six weeks, there is no indication that he did so.
years later, Plaintiff returned to Dr. Kahler's office
complaining that his back still bothered him, especially when
bending over and sitting. (R. 349). While Ibuprofen helped to
alleviate the pain, he hadn't taken any in four months.
Id. According to Dr. Kahler, Plaintiff had full
range of motion and normal muscle strength, though his back
was tender in the area of the incision at L3-4. Id.
Straight leg tests were negative. Id. Plaintiff was
prescribed Diclofenac Sodium and Cyclobenzaprine and advised
to follow up as needed. Id.
returned to Dr. Kahler on September 27, 2011, for a
comprehensive physical examination. (R. 432). He complained
that his left leg had been going numb and affecting his
ability to stand. Id. He also reported constant pain
in his back, which had become more problematic since he quit
drinking alcohol. Id. Excedrin, which he was taking
eight times a day, seemed to help, though. Id. On
examination, Plaintiff displayed normal gait;
satisfactory-to-full range of motion in his neck and spine;
adequate strength with normal stability in his neck; normal
stability, strength, and tone in his spine; and full range of
motion with normal stability, strength, and tone in his
extremities. (R. 434). Dr. Kahler diagnosed Plaintiff with
low back pain and degenerative disc disease with myelopathy
and prescribed Flexeril, Excedrin, and Diclofenac Sodium.
Id. He was also referred back to PT. Id.
attended nine PT sessions from September 29, 2011, to October
27, 2011. (R. 412). When he was discharged, he displayed
50° of flexion, 18° of extension, 30° of right
side bending, and 25° of left side bending. Id.
Straight leg raises tests were positive. Id. In
addition, Plaintiff scored a 36 percent on the Oswestry
Disability Index (" ODI" ), which, according to his
physical therapist, " indicate[d] an increase in
function with his [activities of daily living]."
Id. Plaintiff nonetheless denied any change in his
Plaintiff followed up with Dr. Kahler in April 2012, he
reported that he continued to suffer lower back pain. (R.
429). He described experiencing stiffness and a decreased
range of motion, as well. Id. Overall, though, he
said the symptoms were " moderate in severity."
Id. Upon examination, Plaintiff showed a full range
of motion and straight leg raise tests were negative.
Id. Dr. Kahler restarted him on Cyclobenzaprine and
also prescribed Tramadol. (R. 430).
Kahler saw Plaintiff again a month later, and he still
complained of lower back pain and left leg numbness. (R.
426). He said that the pain was exacerbated when he bent
" over a fender to work" or when was lying "
under a car." Id. He also reported that it hurt
to sit or walk for long periods of time. Id.
Plaintiff was continued on each of his medications and once
again referred to PT. (R. 426).
attended five physical therapy sessions between May 22, 2012,
and June 5, 2012. (R. 406). By the time of his discharge, his
range of motion and strength had improved and his perception
of pain had fluctuated. Id. However, although his
pain decreased following therapy, it returned when he tried
to do other activities. Id. As a result, his
physical therapist determined that he had only
made minimal progress toward his goals. Id.
same date he was discharged from PT, Plaintiff followed up
with Dr. Kahler. (R. 425). He described experiencing a "
severe dull aching" pain in his lower back, which
radiated down his left leg. Id. He said the pain was
aggravated by bending, twisting, and standing. Id.
Upon examination, Plaintiff showed 20° of trunk
extension, 90° of lumbar spine flexion, 45° right
rotation, and 45° left rotation. Id. Straight
leg raises were positive at 45° on the left side and
90° on the right side. Id.
16, 2012, Plaintiff underwent an x-ray of his lumbar spine.
(R. 411). The x-rays showed that the disc height at L4-5 was
" borderline but unchanged from the prior study" in
July 2005. Id. Otherwise, the examination was
days later, Plaintiff returned to Dr. Kahler's office for
their last recorded visit. (R. 424). Plaintiff complained
that his lower back pain continued and asked to try a TENS
unit. Id. His range of motion was the same as it had
been two weeks earlier, but bilateral straight leg raise
testing was negative. Id. Dr. Kahler ordered an MRI
of Plaintiff's spine and referred him to a pain
management clinic. Id. The results of the MRI showed
mild diffuse disc bulging at L3-4, mild hypertrophic change,
and minimal foraminal narrowing. (R. 438). Meanwhile, at
L4-5, there was minimal disc bulging and mid facet
degerenative change, leading to mild bilateral foraminal
protectively filed applications for DIB and SSI on August 15,
2011. His applications were denied at the administrative
level. On February 28, 2013, Plaintiff had a hearing before
Administrative Law Judge (" ALJ" ) Brian W. Wood.
He was represented by counsel and testified at the hearing,
as did an impartial vocational expert (" VE" ). On
April 16, 2013, the ALJ issued a decision that denied
Plaintiff's applications for benefits. The ALJ's
decision became the final decision of the Acting Commissioner
on August 7, 2014, when the Appeals Council denied
Plaintiff's request for review. Plaintiff then filed this
action for judicial review of the ALJ's decision. The
parties' cross-motions for summary judgment followed.
Standard of Review
Act strictly limits the Court's ability to review the
Commissioner's final decision. 42 U.S.C. § 405(g).
" This Court neither undertakes a de novo review of the
decision, nor does it re-weigh the evidence in the
record." Thomas v. Massanari, 28 Fed.Appx. 146,
147 (3d Cir. 2002). Instead, the Court's " review of
the Commissioner's final decision is limited to
determining whether that decision is supported by substantial
evidence." Hartranft v. Apfel, 181 F.3d 358,
360 (3d Cir. 1999). If the Commissioner's decision is
supported by substantial evidence, it is conclusive and must
be affirmed. 42 U.S.C. § 405(g). The Supreme Court has
defined " substantial evidence" as " such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842
(1971). It consists of more than a scintilla but less than a
preponderance of the evidence. Thomas v. Comm'r of
Soc. Sec., 625 F.3d 798 (3d Cir. 2010). Importantly,
" [t]he presence of evidence in the record that supports
a contrary conclusion does not undermine the
Commissioner's decision so long as the record provides
substantial support for that decision."
Malloy v. Comm'r of Soc. Sec., 306
Fed.Appx. 761, 764 (3d Cir. 2009).
Sequential Evaluation Process
qualify for disability benefits under the Act, a claimant
must demonstrate that there is some " medically
determinable basis for an impairment that prevents him or her
from engaging in any substantial gainful activity for a
statutory twelve-month period." Fargnoli v.
Halter, 247 F.3d 34, 38-39 (3d Cir. 2001) (internal
citation omitted); 42 U.S.C. § 423 (d)(1). When deciding
whether a claimant is disabled, the Commissioner utilizes a
five-step sequential evaluation. 20 C.F.R. § §
404.1520 and 416.920. This process requires the Commissioner
to consider, in sequence, whether a claimant (1) is working,
(2) has a severe impairment, (3) has an impairment that meets
or equals the requirements of a listed impairment, (4) can
return to his or her past relevant work, and (5) if not,
whether he or she can perform other work that exists in
significant numbers in the national economy. See
Newell v. Comm'r of Soc. Sec., 347 F.3d 541,
545-46 (3d Cir. 2003) (quoting Burnett v. Comm'r of
Soc. Sec., 220 F.3d 112, 118-19 (3d Cir. 2000)).
the five-step sequential evaluation process, the ALJ first
found that Plaintiff had not engaged in substantial gainful
activity since September 10, 2005. At step two, the ALJ found
that Plaintiff's degenerative disc disease with
radiculopathy, gastroesophageal reflux disease, depression,
PTSD, anxiety, borderline personality disorder, and alcohol
abuse are severe impairments. At step three, however, the ALJ
concluded that none of these impairments rose to the level of
any of the Listed Impairments. So prior to proceeding to the
next step of the sequential evaluation process, the ALJ
assessed Plaintiff's residual functional capacity ("
RFC" ) and found that he retained the ability to perform
light work with various additional physical and mental
limitations. The ALJ proceeded to find that Plaintiff is not
disabled at the fifth step of the sequential evaluation
process based on the VE's testimony that there are jobs
existing in significant numbers in the national economy that
someone of Plaintiff's age, education, experience, and
RFC could perform: bench assembler; sorter; and
inspector/hand packer. The ALJ also identified three
sedentary jobs that Plaintiff could perform: ticket counter;
final assembler; and addressor clerk.
raises two arguments in support of his motion for summary
judgment. These arguments will be addressed
Substantial evidence supported the ALJ's RFC
first takes issue with the ALJ's RFC finding, arguing
that it is not supported by substantial evidence because
there was no medical opinion in the record regarding
Plaintiff's physical impairments. In Plaintiff's
view, an ALJ can never review and interpret medical
records and arrive at his own RFC finding unaided by an
opinion from a physician as to a claimant's functional
capacity. Plaintiff says that this rule is grounded in the
Court of Appeals' decision in Doak v. Heckler,
790 F.2d 26 (3d Cir. 1986), and cites a number of district
court cases from this Circuit -- including some from this
Court -- that have purportedly adopted it, see,
e.g., Biller v. Colvin, 962 F.Supp.2d 761 (W.D.
is correct that the record is devoid of any medical opinions
as to his physical impairments. However, his reliance on
Doak and the other cases cited in his brief for the
proposition that an ALJ must always base his RFC on a medical
opinion from a physician is misguided. As Judge Bloch has
astutely explained, Doak " does not, as
Plaintiff suggests, hold that an ALJ's RFC findings must
be based on a particular medical opinion . . . ."
Doty v. Colvin, No. CIV.A. 13-80-J, 2014 WL 29036,
at *1 n.1 (W.D. Pa. Jan. 2, 2014). Rather, in Doak,
" [t]he Third Circuit did nothing more than make a
substantial evidence finding in light of a limited record . .
. and subsequent Third Circuit case law confirms this
understanding." Id. That subsequent case law
makes clear that " [a]lthough reliance on State
consultants' reports and treating physicians'
opinions is common and ALJs are required to consider any
existing State consultant reports, the regulations do not
require ALJs to seek outside expert assistance."
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356,
362 (3d Cir. 2011) (citing 20 C.F.R. § § 404.1519,
404.1527(e), 404.1527(f), 404.1546(c); SSR 96-5p, 1996 WL
374183 (S.S.A. July 2, 1996)); see also
Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d
Cir. 2006) (" There is no legal requirement that a
physician have made the particular findings that an ALJ
adopts in the course of determining an RFC." ). Indeed,
" [s]urveying the medical evidence to craft an RFC is
part of the ALJ's duties." Id. "
Consistent with this later case law, Doak does not
prohibit the ALJ from making an RFC assessment even if no
doctor has specifically made the same findings and even if
the only medical opinion in the record is to the
contrary." Doty, 2014 WL 29036, at *1 n.1
(citing Hayes v. Astrue, No. CIV.A. 07-710, 2007 WL
4456119, at *2 (E.D. Pa. Dec. 17, 2007)).
erroneous reading of Doak adopted by various courts
throughout this Circuit seems to have originated in the
district court's decision in Chandler, 2011 WL
1743313, at *1. The district court in that case cited
Doak in support of the following proposition: "
rarely can a decision be made regarding a claimant's
residual functional capacity without an assessment from a
physician regarding the functional abilities of the
claimant."  Id. It proceeded to remand
the case to the ALJ because " there was no timely and
relevant assessment of the functional capabilities of
Plaintiff from a physician and the bare medical records and
other non-medical evidence were insufficient for the [ALJ] to
conclude" that the claimant could perform sedentary
work. Id. at *2. On appeal, however, the Third
Circuit Court of Appeals reversed the district court's
decision. Chandler, 667 F.3d at 362. The Court of
Appeals did not just reverse the district court's
decision, though. It also specifically rejected the district
court's conclusion " that the ALJ had reached its
decision on its own improper lay opinion regarding medical
evidence." Id. Quite the opposite: the Court of
Appeals stressed that an " ALJ is not precluded from
reaching RFC determinations without outside medical expert
review of each fact incorporated into the decision."
courts in subsequent cases, predominantly in the Middle
District but also in this District, have continued to trot
out the very same reasoning -- in many cases, word-for-word
-- that the district court employed and the Court of Appeals
rejected in Chandler. See, e.g., Kester v.
Colvin, No. 3:13-CV-02331, 2015 WL 1932157, at *2-3
(M.D. Pa. Apr. 21, 2015); Arnold v. Colvin, No.
3:12-CV-02417, 2014 WL 940205, at *4-5 (M.D. Pa. Mar. 11,
2014); Troshak v. Astrue, No. 4:11-CV-00872, 2012 WL
4472024, at *7 (M.D. Pa. Sept. 26, 2012). Although some of
these courts have acknowledged Chandler, they have
attempted to couch the above-quoted language in
Chandler as dicta that conflicts with the holding in
Doak. See, e.g., Gunder v. Astrue, No.
4:11-CV-00300, 2012 WL 511936, at *15 (M.D. Pa. Feb. 15,
2012); Kostelnick v. Astrue, No. 3:12CV901, 2013 WL
6448859, at *5 n.19 (M.D. Pa. Dec. 9, 2013). In reality,
however, these courts have read Doak too broadly, in
effect forcing it into conflict with Chandler when
no conflict actually exists. As Judge Bloch observed in the
Doty case, Doak simply held that there was
no evidence upon which the ALJ could have found that the
plaintiff could perform light work since every piece of
evidence suggested otherwise;  it did not purport to
create the per se rule advocated by Plaintiff here.
It was never cited for that proposition until the district
court's decision in Chandler, 2011 WL 1743313,
at *1. If Doak actually stood for the rule espoused
by Plaintiff, the Court of Appeals in Chandler would
have surely attempted to reconcile its reasoning with that of
Doak. It had to be aware of Doak, as the
district court made it a centerpiece of its reasoning. Yet
the Court of Appeals said nothing. Its silence is a strong
indication that it did not believe that it was breaking any
new ground or diverging from any precedent
set in Doak (or the other cases cited in
Plaintiff's brief, which stand for the inarguable
proposition that an ALJ cannot substitute his own
pseudo-medical judgment for that of a physician). Rather, it
was merely acknowledging the well-established rule that RFC
is a factual finding that must be made by the ALJ after
reviewing all of the evidence in the record. See
Chandler, 667 F.3d at 362 (citing 20 C.F.R. §
§ 404.1546(c), 404.1527(e); SSR 96-5p, 1996 WL 374183).
Accordingly, although this Court recognizes that some courts
have found that Chandler must give way to
Doak insofar as the two cases conflict, this Court
respectfully disagrees that there is a conflict.
determined what the ALJ was not required to do -- base his
RFC on an opinion from a medical source -- the Court now must
address what was required of the ALJ. RFC refers to
the most a claimant can still do despite his limitations. 20
C.F.R. § § 404.1545(a), 416.945(a). The assessment
must be based upon all of the relevant evidence, including
the medical records, medical source opinions, and the
individual's subjective allegations and description of
his own limitations. 20 C .F.R. § § 404.1545(a)(3),
reviewing the evidence, the ALJ in this case found that
Plaintiff can perform light work, so long as he could
alternate between sitting and standing every thirty minutes.
(R. 24). He also found, as relevant to this appeal, that
Plaintiff could never climb ladders, ropes, and scaffolds;
occasionally climb ramps and stairs; occasionally engage in
postural activities; and occasionally push and pull with his
left leg. (R. 24). This finding was supported by substantial
evidence. In fact, the ALJ's RFC assessment generously
accounted for the limitations credibly established by the
evidence of record. " Light work involves lifting no
more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds." 20 C.F.R.
§ 416.967(b). It also requires " standing or
walking, off and on, for a total of approximately 6 hours of
an 8-hour workday." SSR 83-10, 1983 WL 31251, at *6
(S.S.A. Jan. 1, 1983). As the ALJ concluded, Plaintiff was
treated conservatively following his 2006 back surgery, with
his condition remaining largely unchanged through this
period. He often displayed a full range of motion, and
although he testified to difficulty standing or walking for
long periods of time, the ALJ provided sufficient reasons for
concluding that Plaintiff's testimony as to his
impairments was not entirely credible.
assuming, arguendo, that there was not support for
the finding that Plaintiff could perform light work, it
ultimately would not matter. The VE also identified several
positions at the sedentary level that Plaintiff could
perform. While it might be arguable that he cannot perform
the demands of light work, there is clearly substantial
evidence to support a finding that he can perform sedentary
work with a sit/stand option. Plaintiff himself indicated in
a disability report dated August 24, 2011, that he could lift
up to 25 pounds, sit for two hours, and stand for one hour.
At the hearing, he clarified that he could not sit for long
than 45 minutes before he had to get up and move around. (R.
41). Either way, by his own account, he could meet the
requirements of sedentary work with a sit/stand option.
See 20 C.F.R. § 416.967 (explaining that "
[s]edentary work involves lifting no more than 10 pounds at a
time" and occasional walking and standing); SSR 83-10,
1983 WL 31251, at *6 (S.S.A. Jan. 1, 1983) (explaining that
occasional walking and standing means " no more than
about 2 hours of an 8-hour workday," with sitting
accounting for the remaining 6 hours). He also testified
that during his last job with Zambelli's Fireworks, which
he was required to quit in 2009 because of a failed
background check, he had to lift up to 50 pounds. As the ALJ
opined, this belied a finding that Plaintiff suffered greater
limitations than those found in the ALJ's RFC. So too did
the fact that Plaintiff continued to try to repair vehicles,
hunt, fish, and play golf well after his alleged onset date.
Accordingly, the Court finds that the ALJ's RFC
assessment is supported by substantial evidence.
The Acting Commissioner did not improperly remove
records from the certified copy of the transcript,
and remand is not required to address whether the ALJ relied
on records of another claimant in deciding Plaintiff's
second contention is that the Acting Commissioner's
decision to " unilaterally . . . remove records"
relating to another claimant from the certified copy of the
transcript without leave of Court was improper. Pl.'s Br.
at 11. While Plaintiff does not dispute that the redacted
records do in fact relate to another claimant, he nonetheless
argues that the Acting Commissioner should be ordered to file
the complete administrative record, including the documents
related to the other claimant. Failing that, Plaintiff
submits that the matter should be remanded because otherwise
this Court cannot determine whether the ALJ's decision is
actually based on substantial evidence. This argument fails.
Plaintiff has not cited any authority to support the
suggestion that the Acting Commissioner was required to seek
leave of Court before redacting portions of the
administrative record pertaining to someone other than
Plaintiff. Perhaps that is not surprising, considering the
Acting Commissioner adhered to the Social Security
Administration's internal guidance when it redacted the
aforesaid documents prior to filing the certified record.
Hearing, Appeals and Litigation Law Manuel ("
HALLEX" ) I-4-1-54 (S.S.A.), 1993 WL 643631, at *3
(explaining that if a document in the record pertains to
someone other than the claimant and " the evidence does
not affect the defensibility of the case," the document
must be redacted, in whole or in part, prior to filing the
certified record with the district court). To be sure, HALLEX
does not have the force of law, but there is no indication
that courts have disapproved of the Administration's
practice of redacting irrelevant documents before filing a
certified copy of the transcript with the district court.
This Court sees no reason to be the first to do so.
Therefore, it must decline Plaintiff's request to order
the Acting Commissioner to file the documents in non-redacted
form. Likewise, it will not remand the case to the ALJ on
makes one final argument. He contends that there is no
indication that the ALJ was aware that certain documents in
the record related to another claimant, let alone how much
the ALJ may have relied on these documents in reaching his
decision. Thus, relying on an unpublished summary order from
the Second Circuit Court of Appeals, Yenik v.
Commissioner of Social Security, 522 Fed.Appx. 65 (2d
Cir. 2013), he argues that the matter should be remanded so
the ALJ can make it clear that he did not rely on any of
these documents in reaching his decision. The Court is not
persuaded by Plaintiff's reliance on Yenik.
First of all, it goes without saying that Yenik is
not binding on this Court (or even in the Second Circuit for
that matter). Not only that, but it is also easily
distinguishable from the circumstances in this case. The
administrative record in Yenik included documents
related to " Joseph Yenik, Sr.," but the claimant
actually " Joseph Yenik, Jr." Id. Nobody
picked up on the discrepancy until the case was appealed to
the Second Circuit, including the ALJ, who apparently
considered the documents related to " Joseph Yenik,
Sr." in rendering his decision. By contrast, while the
ALJ in this case did not mention that the record included
documents pertaining to another person and said that he had
considered the entire record before coming to his decision,
it is clear that none of the documents related to another
claimant played a part in the ALJ's decision. The ALJ did
not cite any of these documents, and the medical records he
did cite all clearly relate to Plaintiff, and not someone
akin to the situation in Melle v. Barnhart, where
the Court of Appeals held that to the extent the ALJ may have
relied on the records of another person in rendering his
decision, the error was harmless. 64 Fed.Appx. 848, 849 (3d
Cir. 2003). More specifically, the Court of Appeals
[t]he ALJ's determination was supported by substantial
evidence divorced from any discrepancy between the report
relating to the [other person] and the numerous other records
pertaining to the Appellant. The [other person's] report
was just one of a number of the records reviewed and possibly
relied upon by the ALJ in making his determinations.
Id. So too in this case -- although there is even
less of a basis for remanding here because the Court can
discern that the ALJ did not rely on any of the documents
related to the other claimant in his decision. It is also
worth noting that, as in Melle, Plaintiff's
counsel did not object to the accuracy of the record at the
administrative hearing, (R. 36), so " the ALJ was
entitled to rely on [Plaintiff's] counsel's assertion
as to the accuracy of the record." Id. Thus,
there is no need to remand the matter to allow the ALJ to
undertake a new evaluation of Plaintiff's eligibility for
benefits. Cf., e.g., Smith-Chonko v.
Colvin, No. CIV.A. 12-1301, 2013 WL 3772521, at *2 (W.D.
Pa. July 17, 2013) (concluding " that the ALJ's
reliance on . . . records [related to another individual] has
infected the decision with error that cannot be ignored"
undeniable that Plaintiff has a number of impairments, and
this Court is sympathetic and aware of the challenges that he
faces in seeking gainful employment. However, under the
applicable standard of review and the current state of the
record, the Court must defer to the reasonable findings of
the ALJ and his conclusion that Plaintiff is not disabled
within the meaning of the Social Security Act. Accordingly,
the Court will GRANT the motion for summary judgment filed by
the Acting Commissioner and DENY the motion for summary
judgment filed by Plaintiff. An appropriate Order follows.
NOW, this 7th day of July 2015, in accordance with the
foregoing Memorandum Opinion, it is hereby ORDERED, ADJUDGED,
and DECREED that the Acting Commissioner's MOTION FOR
SUMMARY JUDGMENT (ECF No. 9) is GRANTED, and Plaintiff's
MOTION FOR SUMMARY JUDGMENT (ECF No. 13) is DENIED. The Clerk
shall docket this case CLOSED.
In addition to Doak, the district
court in Chandler purported to find support for its
reasoning in a practice treatise and two cases from the
Southern District of New York. Chandler, 2011 WL
1743313, at *1-2 (citing Carolyn A. Kubitschek & Jon C.
Dubin, Social Security Disability Law and Procedure in
Federal Courts, § 3.47 (2011); Woodford v.
Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000);
Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.
1996)). These sources provide a shaky foundation for the
court's reasoning. The only authority cited in the
portion of the treatise quoted by the district court in
Chandler -- which has been repeated in subsequent
district court cases -- is a district court case from the
Southern District of New York. Kubitschek & Dubin, Social
Security Disability Law and Procedure in Federal Courts,
§ 3.47 (citing West v. Bowen, 656 F.Supp. 664
(S.D.N.Y. 1987)). What is more, the treatise does not even go
so far as to suggest that an ALJ is prohibited from making an
RFC finding whenever a medical source has not offered an
opinion as to a claimant's functional abilities -- the
proposition for which the district court in Chandler
cited it. To the contrary, citing a line of cases from the
First Circuit, the authors actually acknowledge an ALJ is not
" precluded from rendering common-sense judgments about
functional capacity based on medical findings . . . ."
Id. (quoting Gordils v. Sec'y of Health &
Human Servs., 921 F.2d 327, 329 (1st Cir. 1990)). The
two cases from the Southern District of New York on which the
district court in Chandler relied likewise
must be placed in context. Both cited the First Circuit's
decision in Rivera-Torres v. Secretary of Health & Human
Servs., 837 F.2d 4, 6-7 (1st Cir. 1988) for the
proposition that an ALJ is required to consult a medical
opinion when assessing a claimant's RFC. True, language
to that effect is found in Rivera-Torres, but the
First Circuit has since clarified that a medical opinion as
to a claimant's functional impairments is not required in
every case. See Gordils, 921 F.2d at 329.
As the court in Gordils explained, " if the
only medical findings in the record suggested that a claimant
exhibited little in the way of physical impairments, but
nowhere in the record did any physician state in functional
terms that the claimant had the exertional capacity to meet
the requirements of sedentary work, the ALJ would be
permitted to reach that functional conclusion himself."
The record before the ALJ in Doak
was quite limited, consisting only of the "
claimant's testimony, three physicians' reports, and
a vocational expert's testimony." Doak, 790
F.2d at 28. One of the physician's reports suggested Doak
was completely disabled, the second suggested he could do
sedentary work, and the third offered no opinion as to his
ability to work. Id. at 28-29. Yet the ALJ
inexplicably found that Doak could perform light work.
Id. at 27. Not only that, but the ALJ added that
there was no evidence to the contrary -- even though there
very clearly was. Id. at 27. On these facts,
Doak was an easy case for the Court of Appeals. The
ALJ provided no explanation whatsoever for his decision
to discount the only evidence as to the claimant's
impairments and also misrepresented the state of the record.
No such thing occurred in this case.