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Garner v. Berryhill

United States District Court, E.D. Pennsylvania

June 13, 2017

DEL GARNER, Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          EDUARDO C. ROBRENO, J.

         AND NOW, this 13th day of June, 2017, it is hereby ORDERED that:

         (1) Plaintiff's objections (ECF No. 16) are OVERRULED;[1]

         (2) The Court APPROVES and ADOPTS Magistrate Judge Elizabeth T. Hey's Report and Recommendation (ECF No. 15);

         (3) Plaintiff's request for review (ECF No. 11) is DENIED;

         (4) The Clerk of Court shall mark this case as CLOSED.

         AND IT IS SO ORDERED.

---------

Notes:

[1] The Court has carefully considered Plaintiff's objections to Magistrate Judge Elizabeth T. Hey's Report and Recommendation (”R&R”) and the Commissioner's response to the objections. There is no need to repeat the history or facts of this case as Judge Hey's R&R has adequately relayed that information.

The Court concludes that Judge Hey has correctly and adequately addressed Plaintiff's arguments, and, thus, adopts her R&R. Nonetheless, reviewing the issues raised in Plaintiff's objections de novo, Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998), the Court further concludes that:

a. the ALJ's decision to find Plaintiff's hepatitis C and obesity non-severe was supported by substantial evidence. Plaintiff has not pointed to any evidence indicating that hepatitis significantly impacted his ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Moreover, as described by Judge Hey, the ALJ's analysis concerning Plaintiff's obesity was adequate in that Plaintiff did not list obesity as a factor limiting his ability to work and the ALJ properly relied on the opinions of physicians who were familiar with Plaintiff's obesity. Rutherford v. Barnhart, 399 F.3d 546, 551-53 (3d Cir. 2005); R&R at 21-23 (ECF No. 15).

b. The ALJ's conclusion that Plaintiff's spine impairment did not meet or equal Listing 1.04a was supported by substantial evidence. As noted by Judge Hey, Listing 1.04a requires evidence of nerve root compression, which Plaintiff did not produce. 20 C.F.R. Pt. 404, Subpt. P, App.1, 1.04a; R&R at 23-25.

c. The ALJ's decision to give the opinion of Dr. Ciriaco no weight because it was inconsistent with his own notes as well as the totality of the longitudinal medical record was supported by substantial evidence. The severe limitations described on Dr. Ciriaco's August 2010 check-box Medical Source Statement, (Tr. 808-10), were inconsistent with, inter alia, his own treatment notes, the objective findings in the record, the opinions of other physicians, and Plaintiff's own reports. See R&R at 27-29. Moreover, contrary to Plaintiff's new argument, the ALJ was not required to re-contact Dr. Ciriaco in order for him to clarify his opinion. See 20 C.F.R. §§ 404.1520b(b), 416.920b(b).

d. The ALJ's credibility assessment of Plaintiff's testimony was supported by substantial evidence. The ALJ carefully documented his reasoning and, contrary to Plaintiff's assertion, correctly considered Plaintiff's ability to perform daily activities when making this assessment. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see the ALJ's decision (Tr. 31-33).

The Court also rejects Plaintiff's new argument that the ALJ erroneously relied on his “non-compliance” with treatment as a reason to discount the credibility of his testimony. The ALJ noted, as a small portion of his overall analysis, that Plaintiff declined, in the middle of the injection procedure, a cortisone injection and, on another occasion, refused to wait in the emergency room for x-rays to be taken after having been given methadone. (Tr. 32, 33). This is clearly not a situation where a claimant's failure to take prescribed psychiatric medication could be a symptom of his or her psychological disorder, rather than an indication that the disorder is not serious. Thus, cases cited to by Plaintiff wherein the ALJ erroneously relied on non-compliance as an indicator of a lack of credibility are not pertinent. See, e.g. Hennion v. Colvin, No. 13-CV-00268, 2015 WL 877784, at *24 (M.D. Pa. Mar. 2, 2015).

e. The ALJ met the Agency's burden of showing that Plaintiff could perform other work existing in the national economy. Plaintiff raises four arguments to the contrary which the ...


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