United States District Court, W.D. Pennsylvania
N. BLOCH UNITED STATES DISTRICT JUDGE
NOW, this 27th day of March, 2018, upon
consideration of the parties' cross motions for summary
judgment, the Court, upon review of the Commissioner of
Social Security's final decision, denying Plaintiff's
claim for Disability Insurance Benefits under Subchapter II
of the Social Security Act, 42 U.S.C. § 401 et
seq., finds that the Commissioner's findings are
supported by substantial evidence and, accordingly, affirms.
See 42 U.S.C. § 405(g); Jesurum v.
Sec'y of U.S. Dep't of Health & Human
Servs., 48 F.3d 114, 117 (3d Cir. 1995); Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert.
denied sub nom., 507 U.S. 924 (1993); Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also
Berry v. Sullivan, 738 F.Supp. 942, 944 (W.D. Pa. 1990)
(if supported by substantial evidence, the Commissioner's
decision must be affirmed, as a federal court may neither
reweigh the evidence, nor reverse, merely because it would
have decided the claim differently) (citing Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary
Judgment (Doc. No. 15) is DENIED and that Defendant's
Motion for Summary Judgment (Doc. No. 19) is GRANTED.
 Plaintiff argues that the
Administrative Law Judge (“ALJ”) erred in failing
to properly account for the effects of his exposure to
microwaves in formulating his residual functional capacity
(“RFC”) and in fashioning a hypothetical question
for the vocational expert (“VE”). He appears to
allege that the ALJ's inaccurate findings stemmed from
the insufficient weight given to the opinions of his treating
physicians and to his own subjective complaints. The Court
finds no merit in these contentions, and instead finds that
substantial evidence supports the ALJ's finding that
Plaintiff is not disabled.
Plaintiff argues that the ALJ erred in not giving
enough weight to the opinions of his treating physicians, V.
Rao Nadella, M.D., and James Barke, M.D., and too much to
those of the consultative examiners, Michael Rosenberg, M.D.,
and Rebecca Billings, Ph.D. Although, in general, “the
opinions of a doctor who has never examined a patient have
less probative force as a general matter, than they would
have had if the doctor had treated or examined him, ”
Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)
(internal quotations omitted), where “the opinion of a
treating physician conflicts with that of a non-treating,
non-examining physician, the ALJ may choose whom to
credit.” Id. at 317. See also Dula v.
Barnhardt, 129 Fed.Appx. 715, 718-19 (3d Cir. 2005). It
is also important to remember that:
The ALJ -- not treating or examining physicians or
State agency consultants -- must make the ultimate disability
and RFC determinations. Although treating and examining
physician opinions often deserve more weight than the
opinions of doctors who review records, “[t]he law is
clear . . . that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity[.]”
Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d
Cir.2011). State agent opinions merit significant
consideration as well.
Chandler v. Comm'r of Soc. Sec., 667 F.3d
356, 361 (3d Cir. 2011) (internal citations omitted in part).
Here, the ALJ included in his decision a substantial
discussion as to why he gave the weight he did to the various
medical opinions and as to how he formulated Plaintiff's
In regard to Dr. Nadella's opinions as to
Plaintiff's work-related limitations, the ALJ explained
at significant length why he gave the opinions little weight.
He explained that Dr. Nadella's opinions that Plaintiff
could not work and that his medications would likely severely
impair his ability to concentrate and attend work were not
supported by objective medical findings, including his own,
and, in fact, were inconsistent with his own clinical
findings that Plaintiff complained of no side effects from
the use of his medications. (R. 17, 22-23). See Hoyman v.
Colvin, 606 Fed.Appx. 678, 680 (3d Cir. 2015)
(inconsistency between a physician's opinion and his or
her own treatment notes can support the ALJ's decision to
afford less weight to the opinion). As to Dr. Barke's
opinion that Plaintiff was disabled as a result of microwave
exposure, the ALJ provided a great deal of explication as to
why he assigned no weight to this opinion. The ALJ pointed
out that Dr. Barke's opinion was conclusory and vague as
to how microwave exposure had impacted Plaintiff's
condition specifically. (R. 21, 23). Indeed, Dr. Barke
himself admitted that it was difficult to correlate
Plaintiff's symptoms with exposure to microwaves. (R. 21,
1061). The ALJ also discussed how Dr. Barke relied heavily
and uncritically on Plaintiff's subjective report of
symptoms and limitations (statements the ALJ ultimately found
to lack credibility). (R. 21). See Dixon v. Comm'r of
Soc. Sec., 183 Fed.Appx. 248, 252 (3d Cir. 2006). He
further explained that what clinical findings Dr. Barke did
make were inconsistent with the record evidence as a whole,
specifically noting that Dr. Barke's finding that
Plaintiff displayed an antalgic gait at his March 25, 2014
examination was inconsistent with Dr. Nadella's records
from just a short time later stating that Plaintiff displayed
normal gait for his age. (R. 23, 1067, 1134). See
also (R. 22, 1072) (noting that Dr. Rosenberg also found
that Plaintiff had a normal gait in October of 2014). The ALJ
therefore thoroughly discussed why he was affording the
weight that he did to the rather non-specific opinions of
Drs. Nadella and Barke.
Although Plaintiff complains that the ALJ over-relied
on the opinions of the consultative examiners, the ALJ
actually only afforded some weight to the opinions of Drs.
Rosenberg and Billings. (R. 23). Plaintiff argues that even
this was too much weight, especially in light of his claim
that they were under the impression he had been electrocuted
rather than exposed to microwaves. However, as Plaintiff is
well aware, the ALJ addressed this issue, finding it likely
that Plaintiff himself had given this allegedly inaccurate
information to the consulting physicians. (R. 22). As the ALJ
pointed out, not only did both consulting professionals note
that Plaintiff claimed to have been electrocuted, this
supposedly incorrect diagnosis of electrocution was contained
elsewhere in the record as well. (R. 1071, 1087, 1106).
Regardless, the issue is ultimately not what caused
Plaintiff's work-related impairments and limitations, but
what those impairments and limitations were. Drs. Rosenberg
and Billings did not purport to opine on anything other than
Plaintiff's actual restrictions, regardless of the
Plaintiff appears to argue that the incorrect
assumption of the consulting professionals that he had been
electrocuted also impacted the ALJ's reliance on these
reports in dismissing Plaintiff's subjective complaints.
Indeed, he appears in general to assert that the ALJ was
wrong in not crediting his own testimony about the severity
of his symptoms from microwave exposure. When an ALJ has
articulated reasons supporting a credibility determination,
that determination is afforded significant deference. See
Horodenski v. Comm'r of Soc. Sec., 215 Fed.Appx.
183, 188-89 (3d Cir. 2007); Reefer v. Barnhart, 326
F.3d 376, 380 (3d Cir. 2003). The Court finds that the record
more than supports such deference here.
The ALJ not only explained at great length how the
objective medical findings of record and Plaintiff's
activities of daily living did not support Plaintiff's
subjective complaints, he also noted specific examples in the
record calling into question Plaintiff's credibility
generally. He noted that Dr. Billings not only questioned the
sincerity of Plaintiff's efforts during her examination
of him, but that Plaintiff even seemed to be smug about it.
(R. 16, 1086-91). The ALJ pointed out that Dr. Rosenberg had
similar concerns about Plaintiff's credibility. (R. 22,
23, 1071-74). He further noted that one of Plaintiff's
treating physicians, Hairong Peng, M.D., had notated in his
records that he had been asked by Plaintiff to sign a letter
stating that Plaintiff had been subjected to microwave
radiation and that he was taking high doses of opiate
medication, but that he refused to do so. (R. 23, 1171).
Moreover, the ALJ discussed that, when the microwave exposure
first happened, one of Plaintiff's primary interests was
to have the event “legally documented.” (R. 20,
758). While Plaintiff may have a different interpretation as
to the impact of this evidence on his credibility, there is
no question that there was sufficient information in the
record for the ALJ to have made the findings that he did as
Plaintiff relies on the fact that the ALJ cited to
these portions of the record in finding him to be not fully
credible in arguing that the ALJ was biased against him. He
also alleges that this bias was demonstrated through the
ALJ's conduct at the hearing, particularly in regard to
some evidentiary issues. However, as discussed above, the ALJ
accurately cited to the portions of the record on which he
relied in ruling on Plaintiff's credibility, and his
consideration was reasonable and supported by substantial
evidence. As to Plaintiff's contention that a few
evidentiary disputes at the hearing demonstrated the
ALJ's bias, the Court notes that these exchanges were
unremarkable and further notes that Plaintiff in no way
suggests what evidence, if any, he was precluded from
entering into the record. Indeed, three separate
administrative hearings were held in this case after the
initial remand from the Appeals Council, demonstrating that,
if anything, the ALJs were particularly generous in providing
Plaintiff with the time and means to ...