ROBERSON v. COLVIN, No. 2:2013cv01183 - Document 18 (W.D. Pa. 2014)
Court Description: MEMORANDUM JUDGMENT ORDER denying 12 plaintiff's Motion for Summary Judgment and granting 16 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 8/26/14. (kw)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MICHAEL ROBERSON, Plaintiff, v. Civil Action No. 13-1183 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this the parties' ;/b of August, 2014, upon consideration of cross -motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits income ("SSI") under Titles ("DIB") and supplemental security II and XVI, respectively, of the Social Security Act, IT IS ORDERED that the Acting Commissioner's motion for summary judgment hereby is, (Document No. 16) be, and the same granted and plaintiff's motion for summary judgment (Document No. 12) be, and the same hereby is, denied. As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of the facts and evidence of record and may reject or discount reasons for doing so. Cir. ""A072 (Rev. 8/82) 1999) . substantial any evidence if Plummer v. Apfel, the ALJ explains the 186 F.3d 422, (3d 429 Where the ALJ's findings of fact are supported by evidence, a reviewing court is bound by those findings, even differently. 2001). if it would have Fargnoli v. Moreover, it is decided Massanari, well the factual 247 F.3d 34, settled determined merely by the presence of that 38 inquiry (3d Cir. disability impairments, is not but by the effect that those impairments have upon an individual's ability to perform substantial gainful act 125, 129 (3d Cir. 1991). ty. These Jones v. Sullivan, 954 F.2d well-established principles preclude a reversal or remand of the ALJ's decision here because the record contains substant evidence to support the ALJ IS findings and conclusions. ions for DIB and SSI on April 12, Plaintiff filed his appl 2010, alleging disability beginning on September 15, 2007, due to and foot problems. depression, anxiety and back, applications were denied. Plaintiff's At plaintiff's request, an ALJ held a hearing on January 25, 2012. At the hearing, plaintiff's counsel amended his alleged disability onset date to February 5, 2010, which is the day after the previous unfavorable decision issued on his earl application. Plaintiff's counsel acknowledged that the prior decision, which subsequently was upheld by the Appeals Council, had become final and binding. 1 By the amendment, plaintiff's counsel constructively withdrew his DIB claim because his date last insured for DIB purposes was March 31, 2008. As a result, the ALJ dismissed plaintiff's claim for DIB. lConsequently, the period to February 5, 2010, has been fully adjudicated, and the relevant period of review in this case is from February 5, 2010, through March 15, 2012, which is when the ALJ issued the unfavorable decision on iff's SSI claim. (Rev, 8/82) - 2 - On March 1S t 2012 t SSI c the ALJ issued a decision on plaintiff's , finding that he is not disabled. The Appeals Council denied plaintiffts request for review on July 23, 2013, making the ALJ's ision the final decision of the Commissioner. The instant action followed. Plaintiff, who has a high school education through a general equivalency degree, was 45 years old on his amended alleged disability onset date, and is classified as a younger individual under the regulations. Plaintiff has past 20 C.F.R. §416.963(c) relevant work experience as a dishwasher, mus clerk, janitor and , but he has not engaged in substant gainful activity at any time since his amended alleged onset date. After reviewing plaintiff's medi records ALJ concluded meaning of the Act. that plaintiff is hearing at the hearing, testimony from plaintiff and a vocational the and sabled wi thin not the Although the medical evidence established that plaintiff suffers from the severe impairments of the residual ef ts of right tibia and ankle fractures, osteoarthritis of the ft knee, L5 disc protrusion, mood disorder and a history of learning disability and polysubstance abuse, those impairments, alone or in combination, do not meet or equal the criteria of any of the 1 ted impairments set forth Appendix 1 of 20 C.F.R., Subpart P, Regulation No.4 ("Appendix 111) . The ALJ found that plaintiff retains the residual functional capacity to perform sedentary work with a number of additional non exertional limitations. Plaintiff 'l;,.A072 (Rev. 8/82) - 3 - limited to performing work that involves simple, repetit tasks that do not require dealing with the general public or maintaining close interaction and cooperation with co workers (collectively, the "RFC Finding") . Based upon concluded that functional capac testimony by plaintiff's a vocational vocational factors and the assembler or addresser. ALJ residual enable him to perform work that significant numbers in the national economy, 1S expert, sts in such as a sorter, Accordingly, the ALJ found that plaintiff not disabled within the meaning of the Act. The Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental for a continuous period of impairment that can be expected to at least twelve months. 42 U.S.C. §1382c(a) (3) (A). The impairment or impairments must be so severe that the claimant "is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of gainful substant economy .... " work which exists in the national 42 U.S.C. §1382c(a) (3) (B). The Commissioner has promulgated regulations that incorporate a five-step sequential evaluation process for determining whether a claimant is disabled. The ALJ must determine: (1) whether the claimant currently is engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; listed in Appendix 1; (4) impairment meets or equals the if not, whether the claimant's impairment performing his past relevant work; (Rev 8/82) (3) if so, whether his 4 and (5) prevents if so, him from whether the claimant can perform any other work that economy, in light of his age, residual functional capacity.2 education, in the national work experience and 20 C.F.R. §416.920(a) (4). If the claimant is found disabled or not disabled at any step, further inquiry is unnecessary. Id. In this case, plaintiff argues that the ALJ erred at step 5 because: (1) the ALJ did not properly evaluate the opinion of various physicians who treated and examined him; and (2) the ALJ improperly assessed plaintiff's credibility by relying on his own lay opinion and bias. The court finds that these arguments lack merit. Plaintiff first argues that the ALJ did not properly evaluate the opinion of his treating psychiatrist, Dr. Tracy Javaherian, as well as the respective opinions of Dr. Steven Pacella, Dr. Anita LaLumere and Dr. Antonio consultative examinations. Riccelli, who performed one-time Contrary to plaintiff's position, the ALJ properly evaluated the medical opinions in this case. First, Dr. Javaherian completed a "check the box" form report which asked for an assessment of plaintiff's ability to perform various mental Javaherian occupational was work-related asked to adjustments, activit rate (R. plaintiff's performance 830-832). ability to adjustments Dr. make and idual functional capacity is defined as that which an individual still is able to do the limitations caused by his rments. 20 C.F.R. §416.945(a) (1). In assessing a claimant's residual functional capacity, the ALJ is required to consider his ability to meet the physical, mental, sensory and other requirements of work. 20 C.F.R. §416.945(a) (4). (Rev. 8/82) 5 personal/social "poor" or "none". adjustments as "unlimited," "good," "fair," In all areas, Dr. Javaherian rated plaint ability to function as f's "poor," which is defined as "ability to function in this area is seriously limited but not precluded." (R. 830-831). The ALJ determined that Dr. Javaherian's opinion was not well supported because it was set forth on a form report without any supporting explanation. Javaherian's (R. 18). restrictive Further, the ALJ found that Dr. assessment plaintiff's of mental functional ability was not supported by the records of his mental health treatment. (R.18). After reviewing the record, that Dr. weight. which Javaherian t s the court agrees with the ALJ opinion was not entitled to controlling As the ALJ indicated, Dr. Javaherian's form report upon plaintiff assessment. relies does so note We not that explain the although Dr. basis her Javaherian rated plaintiff's ability to perform mental work-related functions as "poor,1I the that one t s precluded. plaintiff's tion of "poor ability (R. to 830). ability to ll provided on the form report means function is seriously Further t Dr. function in all limi but not Javaheriants opinion that areas was "poor," is contradicted by the fact that the doctor assessed plaintiff's GAF (Rev.8i82) - 6 score at 55, In any (R. 832), which indicates only moderate symptoms. 3 event, the ALJ fully accounted for plaintiff's mental limitations identified by Dr. Javaherian by including in the RFC Finding a tasks restriction to work that involves simple, that do not repetitive require dealing with the general public or maintaining close interaction and cooperation with co-workers. For these reasons, the court finds that there was no error in the ALJ's consideration of Dr. Javaherian's opinion of plaintiff's ability to perform various mental work related tasks. Plaintiff also complains that the ALJ improperly rejected the opinions of Drs. Pacella, LaLumere and Riccelli, performed a consultative examinations of plaintiff. who each Plaintiff's position as to each consulting examiner is without merit. First, Dr. Pacella examined plaintiff and issued his opinion in July 2006, which predated the relevant period in this case by over three and a half years. Even if Dr. Pacella's opinion properly could be considered, he indicated that plaintiff was a marginal historian and the examination findings did not appear to be a true indicator of plaintiff's functioning. (R. 285, 288-89). Next, Dr. LaLumere concluded that plaintiff had only slight 3 The GAF scale is used by mental health clinicians to rate an individual's social, occupational and psychological functioning. The GAF scale considers those areas of functioning on a hypothetical continuum of mental health to illness. The highest possible score is 100 and the lowest is 1. A score between 51-60 indicates that one has moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational or school functioning (e. g., few friends, conflicts with peers or co- workers) Diagnosti c and St atisti cal Manu al of Mental Diso rders (4 th Ed. 2000). ""'AO 72 (Rev. 8/82) - 7 - or moderate limitations in most mental work-related areas of functioning, but she found that he had a marked limitation in his ability to respond appropriately to work pressures in a usual work setting and to respond appropriately to changes in a routine work setting. (R. The ALJ consultative 776). determined that the results examination were entitled to of Dr. only LaLumere's little weight because plaintiff made misrepresentations to the doctor during the exam. (R. 18). For example, plaintiff told Dr. LaLumere that he attempted suicide by jumping out of a window, injured his contrary, back and shattered his leg. (R. the record indicates that plaintiff window while fleeing from law enforcement. at which time he 769). To the jumped out of a (R. 1081, 1146). The ALJ did not err by giving little weight to Dr. LaLumere's opinion in light of the fact that plaintiff was not completely forthright when she examined him. Nevertheless, to the extent Dr. LaLumere found that plaintiff would have difficulty responding to work pressures and changes, the ALJ accounted for that deficiency by limiting him to simple, repetitive tasks that do not require him to deal with the general public. Finally, the ALJ properly determined that Dr. Riccelli' s opinion contained on a form report that plaintiff could only stand and walk one hour in an eight-hour workday was entitled to little weight. (R. 17-18, 816). That finding is inconsistent with Dr. Riccelli's written report, which indicates that plaintiff's range of motion and gait were normal and that he can "sit, bend, stand, (Rev. 8/82) - 8 - walk, lift and grasp without any added) . For fficulty." (R. 821) (emphasis s reason, as well as those discussed above, the ALJ properly considered and evaluated the medical opinions in this case. Plaintiff next argues that it was improper for the ALJ to refer to his own background as an amateur musician when he noted that plaintiff's admitted ability to perform and compose music is inconsistent with his claim of disability. According to plaintiff, the ALJ's reference to his own musical background shows that the ALJ improperly interj ected lay opinion and bias in deciding this case. As an matter, t the ALJ properly may plaintiff's activities of daily living as one factor credibility. 20 C.F.R. §416.929(c) (3) (i). ALJ was permitted to note plaintiff's consider assessing Accordingly, the ability to perform and compose music in determining whether his claims were credible. note that the ALJ's consideration was only one item among many We plaintiff's daily activities factors the ALJ considered in assessing plaintiff's credibility. Furthermore, to the extent that plaintiff suggests the ALJ somehow was biased against him, that argument is unfounded. process requires that social security claimants be and fair hearing. Due forded a full Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. to a fair soc security hearing is the right to an unbiased judge who fulfil his duty to develop a full and 1995). Essent fair record. An ALJ is presumed to be unbiased unless there 72 (Rev 8/82) - 9 is a specific showing McClure, 456 U.S. for 188, cause to disqualify. 195 (1982). Schweiker v. The burden to establish a disqualifying interest rests with the party asserting bias. at 196. Id. A party asserting bias must show that the behavior of the ALJ was "so extreme as to display clear inability to render f judgment." Liteky v. United States, 510 U.S. 540, 551 (1994). Plaintiff has led to make such a showing in this case. There is no indication that the ALJ record, that he interfered with led to the ly develop the introduction of evidence concerning plaintiff's claim or that he made any comments that show he was biased against plaintiff or his particular case. ALJ's observation about plaintiff's mus The ability based on his own personal experience does not demonstrate that he was biased against plaintiff. that biased plaintiff has failed to establish In sum, the ALJ was against him or that he otherwise improperly evaluated plaintiff's credibility in this case. considering In conclusion, after carefully and methodical all of the medical evidence of record, plaintiff is not disabled within ALJ's findings and conclusions the ALJ determined that meaning are supported evidence and are not otherwise erroneous. the Act. by substantial Therefore, the decision of the Commissioner must be affirmed. Gustave Dlamond United States Di (Rev 8i82) - 10 The ct Judge cc: Robert W. Gillikin, Esq. Rutter Mills LLP 160 W. Brambleton Ave. Norfolk VA 23510 l l sty Wiegand Assistant U.S. Attorney 700 Grant Street 4000 ""Aon (Rev. 8/82) - 11 -
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