United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
NOW, this 13th day of June, 2017, it is hereby ORDERED that:
Plaintiff's objections (ECF No. 16) are
Court APPROVES and ADOPTS Magistrate Judge Elizabeth T.
Hey's Report and Recommendation (ECF No. 15);
Plaintiff's request for review (ECF No. 11) is DENIED;
Clerk of Court shall mark this case as CLOSED.
IS SO ORDERED.
 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
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. §§
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
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 ...