# Cruz v. Colvin

> District Court, M.D. Pennsylvania · August 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10407564

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GENARO E. CRUZ, :
Plaintiff : CIVIL ACTION NO. 3:17-71

v. : (JUDGE MANNION)
ANDREW M. SAUL1, :
Commissioner of Social Security,
:
Defendant
:
MEMORANDUM
The record in this action has been reviewed pursuant to 42 U.S.C.
§§405(g) to determine whether there is substantial evidence to support the
Commissioner’s decision denying the plaintiff’s claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social
Security Act, (“Act”). 42 U.S.C. §§401-433, 1381-1383f. Based upon the
court’s review of the record, the plaintiff’s appeal will be DENIED.
I. PROCEDURAL HISTORY
The plaintiff protectively filed applications for DIB and SSI on November
14, 2013. In his applications, the plaintiff claimed disability starting on June
4, 2011. Both applications were initially denied on April 9, 2014, after which

1Andrew M. Saul was sworn in as Commissioner of Social Security on
June 17, 2019, and is automatically substituted as the defendant in this
action. See Fed.R.Civ.P. 25(d).
the plaintiff requested a hearing before an administrative law judge (“ALJ”).
A hearing was held before an ALJ on October 6, 2015, at which the
plaintiff was represented by counsel and the ALJ took testimony from the
plaintiff and a vocational expert (“VE”). After the hearing, the record remained

open for additional evidence, which was later submitted and added to the
record. On December 15, 2015, the ALJ issued a decision and concluded that
the plaintiff could perform a limited range of unskilled sedentary work activity
and was not disabled within the meaning of the Act. The Appeals Council
denied the plaintiff’s request for review on December 1, 2016, making the
ALJ’s decision final. See 42 U.S.C. §405(g). On January 11, 2017, the plaintiff

filed the instant appeal. (Doc. 1).
At issue in this appeal is whether substantial evidence supports the
Commissioner’s decision that the plaintiff was not disabled because he was
capable of performing a limited range of sedentary work activity. The plaintiff
filed a brief in support of his appeal on August 28, 2017. (Doc. 10). The
defendant filed a brief in opposition on September 27, 2017, (Doc. 11), and
the plaintiff filed a reply brief on October 4, 2017, (Doc. 12).

II. STANDARD OF REVIEW
When reviewing the denial of disability benefits, the court must
determine whether the denial is supported by substantial evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of
2
Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not
mean a large or considerable amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pierce v. Underwood, 487 U.S. 552 (1988); Hartranft v. Apfel,

181 F.3d 358, 360. (3d Cir. 1999), Johnson, 529 F.3d at 200. It is less than
a preponderance of the evidence but more than a mere scintilla. Richardson
v. Perales, 402 U.S. 389, 401 (1971).
To receive disability benefits, the plaintiff must demonstrate an “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work. For purposes of the preceding sentence (with respect to
any individual), ‘work which exists in the national economy’ means
work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.
42 U.S.C. §423(d)(2)(A).
3
III. DISABILITY EVALUATION PROCESS
A five-step evaluation process is used to determine if a person is eligible
for disability benefits. See 20 C.F.R. §404.1520. See also Plummer v. Apfel,
186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds that a plaintiff is

disabled or not disabled at any point in the sequence, review does not
proceed any further. See 20 C.F.R. §404.1520. The Commissioner must
sequentially determine: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether
the claimant’s impairment meets or equals a listed impairment; (4) whether
the claimant’s impairment prevents the claimant from doing past relevant

work; and (5) whether the claimant’s impairment prevents the claimant from
doing any other work. See 20 C.F.R. §404.1520.
Here, the ALJ proceeded through each step of the sequential evaluation
process and concluded that the plaintiff was not disabled within the meaning
of the Act from June 4, 2011, the plaintiff’s alleged onset date, through the
date of the ALJ’s decision. At step one, the ALJ found that the plaintiff had not
engaged in substantial gainful work activity at any time during the relevant

period. At step two, the ALJ concluded that the plaintiff’s impairments of
chronic back pain, major depression and attention deficit hyperactive disorder
(“ADHD”) were severe within the meaning of the Regulations, but found that
the plaintiff’s asthma and type 2 diabetes were not severe impairments. The
ALJ also found that, while the record strongly suggested that the plaintiff had
4
a pattern of narcotic-seeking behavior and a history of polysubstance abuse,
there was no medically determinable impairment related to substance
use/dependence during the relevant time. At step three, the ALJ concluded
that the plaintiff did not have an impairment or combination of impairments

that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §404.1520(d),
§404.1525, §404.1526, §416.920(d), §416.925 and §416.926). Before
proceeding to step four, the ALJ determined the plaintiff’s residual functional
capacity (“RFC”). In doing so, the ALJ found that the plaintiff could lift no more
than ten pounds on a regular basis, and required alternating between sitting

and standing every 45-60 minutes. The plaintiff retained the mental capacity
for routine, repetitive tasks not requiring precise attention to detail or
independent decision-making. The plaintiff was limited to jobs requiring no
significant interaction with the public in a sense that the plaintiff would not be
required to perform sales-type, persuasion jobs, or have significant interaction
with coworkers, no teamwork or working in tandem and that coworkers would
be working independent of each other. The plaintiff was limited to jobs that

allowed for remote supervision where the supervisor showed or told the
plaintiff how to do the job and then left him alone to do the job and only would
get involved if there were a problem or complaints. At step four, the ALJ found
that the plaintiff was unable to perform his past relevant work. Finally, at step
five, the ALJ determined that there were other jobs that existed in significant
5
numbers in the national economy that the plaintiff could perform based on his
age, education, work experience and RFC. The ALJ therefore concluded that
the plaintiff had not been under a disability, as defined in the Act, at any time
from the alleged onset date through the date of the decision. 20 C.F.R.

§§404.1520(g) and 416.920(g).

IV. DISCUSSION2
On appeal, the plaintiff argues that the ALJ’s RFC assessment was not
supported by substantial evidence because he improperly based the
assessment on his own lay opinion. To this extent, the plaintiff argues that the

ALJ rejected the opinion evidence regarding his physical impairment by giving
“limited weight” to the opinions of Dr. DeArmitt, a treating physician, as well
as the state agency medical consultant, and by giving “little weight” to Dr.
Yang, a consultative examiner. The plaintiff argues that the ALJ failed to fill
the evidentiary void caused by his rejection of these physicians’ opinions and,
instead, used his own lay opinion to develop the plaintiff’s RFC.
A plaintiff’s RFC is the most he can do despite his limitations. See 20

C.F.R. §§404.1545(a)(1), 416.945(a)(1). In determining an individual’s RFC,
the ALJ considers all medical and non-medical evidence of record. See 20
2Since the ALJ and the parties have set forth the medical history of the
plaintiff in their respective filings, it will not be fully repeated herein. Rather,
the plaintiff’s medical history will be discussed only to the extent it is relevant
to the issues raised in this appeal.
6
C.F.R. §§404.1545(a)(3), 416.945(a)(3). However, nothing in either the Social
Security Act or the regulations requires the ALJ to have a corresponding
medical opinion in order to determine a claimant’s RFC. “[T]he ALJ is
responsible for making an RFC determination . . . and [he] is not required to

seek a separate expert medical opinion.” Mays v. Barnhart, 78 Fed. Appx.
808, 813 (3d Cir. 2003). It is not treating or examining physicians or state
agency consultants that must make the ultimate disability and RFC
determinations, and “[t]here is no legal requirement that a physician have
made the particular findings that an ALJ adopts in the course of determining
an RFC.” Titterington v. Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006).

Moreover, when a medical opinion is inconsistent with the record as a whole,
the ALJ may afford less weight to the opinion in fashioning a claimant’s RFC.
See 20 C.F.R. §§404.1527(c)(4), 416.927(c)(4).
Here, the court finds that the ALJ properly considered the medical
opinion evidence of record in determining the plaintiff’s RFC and that there
was no evidentiary void caused by the weight afforded to the medical
opinions. To this extent, the ALJ found that the opinion of Dr. DeArmitt, the

plaintiff’s treating physician, to the Pennsylvania Department of Welfare
providing that the plaintiff was permanently disabled was inconsistent with his
own medical findings. Despite Dr. DeArmitt’s opinion of permanent disability,
the plaintiff had no significant objective symptoms and was treated
conservatively with heat, massage and pain medication. Moreover, although
7
he opined that the plaintiff was permanently disabled, Dr. DeArmitt provided
no functional limitations for the plaintiff in support of that opinion. Lastly,
although Dr. DeArmitt prescribed the plaintiff using a cane, the ALJ found that
it was not medically necessary in light of the limited objective findings upon

examination. Because Dr. DeArmitt’s opinion of permanent disability was
unsupported by the evidence of record, including his own findings, the ALJ
was justified in affording his opinion limited weight.
The ALJ afforded little weight to the state agency physician’s opinion
that the plaintiff remained capable of performing a range of light work activity
because the ALJ believed that the evidence of record established that the

plaintiff was more limited than that. Based upon the evidence of record, the
ALJ restricted the plaintiff to a limited range of sedentary work activity with,
among other things, a sit/stand option.
Finally, with respect to Dr. Yang, the ALJ also afforded his opinion little
weight. In doing so, the ALJ noted that Dr. Yang’s functional assessment
which limited the plaintiff to a total of 4 hours of standing, walking and sitting,
which would preclude any full-time employment, was inconsistent with his

examination notes which reflected that the plaintiff did not exhibit any sensory
deficits or muscle atrophy and had 5/5 muscle strength in his upper and lower
extremities. Moreover, Dr. Yang noted that the plaintiff’s lumbosacral spine
x-rays were negative with well-maintained vertebral bodies and disc spaces.
Further, the ALJ noted that Dr. Yang’s opinion that the plaintiff had limitations
8
in reaching, handling, fingering, feeling and pushing/pulling was inconsistent
with his findings that the plaintiff had intact hand and finger dexterity with 5/5
grip strength and the ability to sort papers and files.
In considering the above, the court finds that substantial evidence

supports the weight given to each of the above medical opinions. Moreover,
a review of the record reflects that, although the ALJ gave little or limited
weight to the above medical opinions, his RFC assessment was based upon
the evidence of record as a whole. Therefore, the court finds that the ALJ’s
RFC assessment was not based upon his own lay opinion but on the
evidence as a whole and no evidentiary void was caused by the weight

afforded the medical evidence of record. On this basis, the plaintiff’s appeal
will be denied.
The plaintiff next argues that the ALJ’s RFC assessment and
hypothetical to the VE did not reflect his difficulties with concentration,
persistence or pace. Although the ALJ determined that the plaintiff can
perform routine, repetitive tasks not requiring precise attention to detail or
independent decision-making, the plaintiff argues that such a limitation does

not reflect his moderate restrictions in concentration, persistence or pace. In
addition, the plaintiff argues that the ability to stick with a given task over a
sustained period is not the same as the ability to learn how to do tasks of a
given complexity. The plaintiff argues that, because he has moderate
limitations in concentration, persistence and pace, he cannot maintain a
9
consistent pace.
In Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), the court held that
the ALJ’s RFC assessment must satisfactorily incorporate all of the plaintiff’s
established limitations. Where the record “clearly establishe[s] . . . additional,

specific deficiencies in concentration, persistence and/or pace” that c[an] not
be accommodated by a restriction to jobs that require[] only simple tasks, the
ALJ is required to provide a more detailed RFC. See Santiago-Rivera v.
Barnhart, 2006 WL 2794189, at **11-12 (E.D.Pa. Sept. 26, 2006).
Here, the ALJ considered the plaintiff’s moderate limitations in
concentration, persistence and pace. Based upon those limitations, he

incorporated a number of work-related limitations. Specifically, the plaintiff
was limited to routine, repetitive, unskilled work that could be learned within
30 days and did not require precise attention to detail or independent
decision-making. These restrictions adequately take into account the plaintiff’s
limitations. See e.g., Adorno v. Colvin, 2017 WL 354126, at *7 (W.D.Pa. Jan.
23, 2017) (ALJ’s RFC assessment which limited her to jobs that can be
learned in one month, involved only repetitive short-cycle tasks, and no more

than occasional decision making or judgment, no production rate or pace
work, and no more than occasional work changes adequately accounted for
moderate difficulties in concentration, persistence and pace). The court will
therefore deny the plaintiff’s appeal on this basis.
Finally, the plaintiff argues that substantial evidence does not support
10
the ALJ’s evaluation of the opinion of Dr. Tardibuono, a consulting
psychologist. The plaintiff argues that, in a medical source statement, Dr.
Tardibuono opined that the plaintiff would have marked limitations in his ability
to respond appropriately to usual work situations and to changes in a routine

work setting. The plaintiff argues that, although the ALJ indicated that he was
affording Dr. Tardibuono’s opinion “great weight” to the extent that his opinion
was supported by the evidence of record, when applying SSR 85-15 and 96-
9p, the ALJ should have found him disabled because there would be a
substantial loss of ability to meet basic work related activities.
“[Social Security Rulings] are agency rulings ‘published under the

authority of the Commissioner of Social Security and are binding on all
components of the Administration.’” Sullivan v. Zebley, 493 U.S. 521, 531 n.9
(1990). They “do not have the force and effect of the law or regulations but
are to be relied upon as precedents in determining other cases where the
facts are basically the same.” Heckler v. Edwards, 465 U.S. 870, 873 n.3
(1984). SSRs are accorded deference, but are not binding upon the courts.
Thornton v. Comm’r of Social Security, 597 Fed. Appx. 604, 610 (11th Cir.

2015). Moreover, simply because a SSR may justify a finding of disability
does not mean that the Commissioner is required to find an individual
disabled. Id. at 611.
Social Security Ruling 85-15 applies in cases solely dealing with
nonexertional impairments. Here, the plaintiff was found to have exertional
11
and nonexertional impairments. Therefore, SSR 85-15 is not applicable in this
case.
Social Security Ruling 96–9p provides that a “substantial loss to meet
any of the basic work-related activities on a sustained basis . . . will

substantially erode the unskilled sedentary occupational base and would
justify a finding of disability.” SSR 96-9p, 1996 WL 374185 *9 (July 2, 1996).
A less than substantial loss, however, may or may not erode the occupational
base and the ALJ is required to assess a claimant’s remaining capacities and
may consult a vocational expert. Id.
Here, the plaintiff argues that Dr. Tardibuono’s opinion that he has

marked limitations in his ability to respond appropriately to usual work
situations and to changes in a routine work setting justifies a finding of
disability under SSR 96-9p. However, as discussed above, simply because
a ruling may justify a finding of disability does not mean that the
Commissioner is required to find disability. See Thornton, supra. In this case,
even affording Dr. Tardibuono’s opinion great weight, the ALJ found that the
plaintiff was capable of performing a limited range of sedentary work which,

along with certain exertional limitations, involved routine, repetitive tasks not
requiring precise attention to detail or independent decision making; no
significant interaction with the public in a sense that he would not be required
to perform a sales-type, persuasion job, or have significant interaction with
coworkers, no teamworking or working in tandem and that coworkers would
12
be working independent of each other; and the plaintiff was limited to jobs that
allowed for remote supervision where supervisors showed or told the plaintiff
how to do the job and then left him to do it alone, only getting involved if there
were problems or complaints. Given these limitations, the ALJ elicited

testimony from the VE, who testified that, even with these limitations, the
plaintiff was capable of performing jobs which existed in significant numbers.
The court finds no conflict between SSR 96-9p and the ALJ’s determination.
Although a finding of disability may have been justified, it was not required.
Based upon the evidence of record, including the testimony of the VE, the
court finds that the ALJ’s decision is supported by substantial evidence.

VI. CONCLUSION
For the reasons stated above, the plaintiff’s appeal from the decision of
the Commissioner of Social Security, (Doc. 1), will be DENIED and the
decision of the Commissioner will be AFFIRMED. An appropriate order shall
issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: August 13, 2019
17-71-01.wpd
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407564. Public record. Not legal advice.