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Falcone v. Berryhill

United States District Court, M.D. Pennsylvania

November 29, 2017

CHRISTOPHER CHARLES FALCONE Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Munley Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         This is a pro se Social Security Appeal filed by Christopher Falcone, a disability claimant who challenges a November 2014 decision by an Administrative Law Judge (“ALJ”) who found that Falcone could still perform work despite his bi-polar disorder. After evaluating all of the medical evidence, including medical opinion evidence which found that Falcone retained the ability to work, and concluding that Falcone's claims of total disability were not fully credible, the ALJ who heard Falcone's disability claim denied that claim. (Tr. 11-26.) Given the deferential standard of review that applies to Social Security appeals, which calls upon us simply to determine whether substantial evidence supports the ALJ's findings, we conclude that substantial evidence exists in this case which justified the ALJ's decisions that led to the denial of this particular claim. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner in this case.

         II. Statement of Facts and of the Case

         This is Falcone's second Social Security disability application. Initially, on September 30, 2009, Falcone applied for disability insurance benefits under Title II of the Social Security Act, alleging an onset of disability beginning on June 16, 2008. (Tr. 14.) Falcone's initial claim was denied by an ALJ on July 25, 2011 following a full hearing into that initial disability claim, and Falcone was unsuccessful in efforts to have the Appeals Council set aside this adverse ruling. Falcone did not further litigate this claim. Therefore, this initial ruling acts as res judicata on Falcone's disability claims relating to matters which transpired prior to July 25, 2011. (Tr. 14.) See Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999).

         Undeterred, Falcone filed a second and subsequent disability application, alleging an onset of disability beginning in May of 2010 due to bi-polar disorder, dependent personality disorder, low back pain, high cholesterol, and head trauma status-post bicycle accident. (Tr. 155, 187-94, 235). While Falcone cited a number of medical conditions in this disability application, Falcone's principal presenting impairment was a mental health condition, bi-polar disorder. As to this condition, the evidence presented to the ALJ for the relevant period-2011 through 2013- had a highly equivocal quality to it.

         Between July 2011 and November 2013, Falcone was seen and treated for this bi-polar disorder by psychiatrists Elmer Cupino, M.D., and Samuel Garloff, D.O., of Redco Behavioral Health Services. These treating sources have not opined that Falcone is disabled in any way due to his mental health condition, and their treatment notes reflect that during treatment sessions Falcone was consistently alert and oriented to person, place, and time; maintained good eye contact; had fluent speech; exhibited no motor disturbances; had goal-directed thoughts without evidence of thought disorder; and displayed intact judgment and insight. (Tr. 391, 394, 401, 404-05, 408, 410, 394, 627). While on some occasions Falcone reportedly had a depressed mood (Tr. 398, 405, 408, 410), with medication management his mood improved to “pleasant” or “euthymic, ” a normal, tranquil mental state or mood. (Tr. 388, 627.)

         These relatively benign findings were also confirmed by a series of Global Assessment of Functioning (“GAF”) scores assigned to Falcone by his caregivers between 2011 and 2013. While Falcone was assessed a GAF score of 35-45 on one occasion in October of 2011, his GAF scores during the relevant period were otherwise consistently above 50, with numerous scores ranging between 60 and 70. (Tr. 388, 391, 394, 398, 410, 404-05, 627.) These were significant clinical findings because GAF scores like those found here “in the 51-60 range indicate [only] moderate impairment in social or occupational functioning.” Cherry v. Barnhart, 29 F. App'x. 898, 900 (3d Cir. 2002).

         While Falcone's disability application was not supported by any medical opinion from a treating source that opined that he was disabled, the ALJ was presented with two non-treating source opinions which reached differing assessments regarding the degree of Falcone's impairment. First, on September 10, 2013, state agency psychologist Richard Small, Ph.D., reviewed the record and opined that Falcone had only mild or moderate limitations in the three areas of functioning, with no repeated episodes of decompensation. (Tr. 159.) Dr. Small concluded that Falcone was capable of sustaining concentration, persistence, and pace and performing simple routine work. (Tr. 162.) In contrast, Falcone submitted a report from a retained expert, Larry A. Rotenberg, M.D., who conducted several evaluations of Falcone regarding his Social Security application. (Tr. 485-94, 601-06, 631-34, 636). Following these evaluations, Dr. Rotenberg summarized Falcone's subjective complaints and opined that he was “severely disabled;” “totally impaired;” unable to maintain employment; dependent on his godparents; and “generally incapacitated.” (Tr. 485-94, 601-06, 631-34, 636.) Dr. Rotenberg also testified at an October 2014 hearing before the ALJ, and stated that Falcone would have difficulty following even simple instructions, could not deal with supervisors, and would need a community living arrangement if he did not live with his godparents. (Tr. 84-92.) Dr. Rotenberg acknowledged in his testimony, however, that Falcone had maintained steady employment for many years, and conceded that he had successfully served in the United States Army gaining promotions and commendations during his military service. (Tr. 93.)

         Beyond this evidence relating to Falcone's emotional impairment, an impairment that was marked by contrasting, mixed and conflicting medical evidence, there was little medical evidence supporting other disabling conditions for Falcone. For example, on July 31, 2013, Falcone underwent a consultative examination with Jeffrey Chimahosky, D.O. (Tr. 559-68). This examination acknowledged that Falcone presented in a child-like state and needed direction to keep focused, (Tr, 562), but found that his neck and spine were normal to inspection with normal posture; he had intact strength and tone; full range of motion; no instability; a normal and smooth gait; normal station; no need for an assistive device; and a positive straight leg raising test at 45 degrees. (Tr. 560.) Dr. Chimahosky therefore opined that Falcone could lift and/or carry 50 pounds frequently and 100 pounds occasionally; sit for two hours, stand for two hours, and walk for four hours in an eight-hour day; frequently perform postural maneuvers; had no manipulative limitations; but could never work at unprotected heights. (Tr. 563-67.)

         It was against this equivocal medical and factual backdrop that the ALJ conducted a hearing considering Falcone's disability application on October 9, 2014. (Tr. 79-121.) At this hearing Falcone, Dr. Rotenberg, and a vocational expert all testified. (Id.) Following this hearing, on November 26, 2014, the ALJ issued a decision denying Falcone's application for disability benefits. (Tr. 11-26.) In this decision, the ALJ first found that Falcone met the insured requirements of the Act through December 31, 2013, (Tr. 16), but concluded that the adverse ruling on Falcone's prior disability application acted as res judicata on any disability claims pre-dating July 2011. (Tr. 14.) Having defined the relevant period of disability as extending from July 2011 through December 2013, at Step 2 of the five-step sequential analysis process that applies to Social Security disability claims the ALJ concluded that Falcone experienced the following severe impairment: bi-polar disorder (Tr. 17.) At Step 3 of this sequential analysis, the ALJ found that Falcone's bi-polar disorder did not meet a listing that would define him as per se disabled, (Tr. 17-19), but then determined at Step 4 of this sequential process that Falcone could not return to his past employment due to this impairment. (Tr. 24.)

         The ALJ then concluded that Falcone retained the residual functional capacity:

to perform a full range of work at all exertional levels but with the following nonexertional limitations. The claimant must avoid concentrated exposure to unprotected heights; and must never climb ropes, ladders, or scaffolds. He is limited to occasional interaction with supervisors and coworkers (no team, group, or tandem work). He must avoid work in a fast-paced production environment. He should not perform mathematical calculations or be required to prepare reports. He should have no public interaction.

(Tr. 19.) In reaching this conclusion the ALJ carefully reviewed the mental health treatment, examination and opinion evidence as it related to Falcone's bi-polar disorder. (Tr. 19-24.) The ALJ observed that Falcone had a longstanding diagnosis of bi-polar disorder beginning in 2011, at a time when Falcone was employed. (Id.) While some 14 years ago caregivers had initially reported GAF scores as low as 45 for Falcone, during the period of Falcone's claimed disability from July 2011 through December 2013, with one exception in October of 2011, Falcone received multiple GAF assessments that ranged from 50-55 through 65-70. (Id.) These GAF scores from treating sources were all emblematic of only mild to moderate emotional impairment. (Id.)

         The ALJ also evaluated the medical opinion evidence in this case. In conducting the evaluation the ALJ afforded moderate weight to the opinion of Dr. Small, the state agency psychologist who found that Falcone could perform work and experienced only moderate impairments in his abilities due to his bi-polar disorder. (Tr. 23.) The ALJ afforded this opinion some weight because it was consistent with the vast body of treating source clinical evidence which also indicated that Falcone only experienced a moderate degree of impairment due to his mental health conditions. (Id.)

         As for Dr. Rotenberg's opinion that found Falcone to be disabled, the ALJ gave that opinion limited weight citing four primary reasons why the opinion did not warrant greater weight in making this disability determination: First, “[a]lthough Dr. Rotenberg ha[d] evaluated the claimant on multiple occasions, he fail[ed] to include the function-by-function analysis required to substantiate such significant limitations”; second, “the conclusion of this evaluator [wa]s contradicted by the claimant's consistent treatment record rife with more benign symptomatology and GAF scores”; third, “Dr. Rotenberg failed to address the fact that claimant had performed semi-skilled to skilled work prior to the closure of th[e] businesses [where he had worked]”; and fourth, “Dr. Rotenberg also failed to address the fact that the claimant stopped working because the employers closed their business, not as a result of any physical or mental impairment.” (Tr. 22.)

         Having made these findings, the ALJ concluded, consistent with the testimony of the vocational expert, that there were a significant number of jobs that Falcone could perform in the regional and national economies. On the basis of these findings and conclusions, the ALJ determined that Falcone was not disabled, and denied this, his second disability application.

         This appeal followed. (Doc. 1.) On appeal, Falcone, who is now representing himself in this litigation, raises two principal claims. First, Falcone argues that a default judgment should be entered against the Commissioner since there was allegedly a three day delay in the Commissioner's filing of the transcript and answer in this case. In addition, Falcone insists that the ALJ's decision is contrary to the evidence, and should therefore be set aside. This case is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, we conclude, under the deferential standard of review which applies to Social Security appeals, that substantial evidence supports the findings of the ALJ. Therefore, we recommend that the district court affirm those findings.

         III. ...


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