Stumpf v. Berryhill

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TANNI E. STUMPF, :

Plaintiff : CIVIL ACTION NO. 3:18-0913

v. : (JUDGE MANNION)

ANDREW M. SAUL1, :

Commissioner of Social Security

:

Defendant :

MEMORANDUM

Pending before the court is the September 10, 2019 report of Judge

Gerald B. Cohn, which recommends that the plaintiff’s complaint challenging

the final decision of the Commissioner denying his applications for disability

insurance benefits (“DIB”) and supplemental security income (“SSI”) under

Titles II and XVI of the Social Security Act, (Doc. 1), 42 U.S.C. §§401-433,

1381-1383f, be denied, and that the decision of the Commissioner be

affirmed. (Doc. 12). Judge Cohn reviewed the record in this case 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 claims for DIB and

SSI. The court has jurisdiction over this appeal pursuant to 42 U.S.C.

§1383(c)(3). The plaintiff, Tanni E. Stumpf, filed objections to Judge Cohn’s

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).

report. (Doc. 13). The Commissioner waived his opportunity to respond to the

plaintiff's objections. (Doc. 14).

For the following reasons, the report and recommendation will be

ADOPTED and the plaintiff's appeal will be DENIED.

l. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to the

extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see □□□□

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010)

(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining

judges should give some review to every Report and Recommendation)).

Nevertheless, whether timely objections are made or not, the district court

may accept, not accept or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local

Rule 72.31.

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

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, 108 S.Ct. 2541, 101

L.Ed.2d 490 (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, 91

S.Ct. 1420, 28 L.Ed.2d 842 (1971 ). If the ALJ's decision is supported by

substantial evidence, the court is “bound by those findings.” Fargnoli v.

Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citation omitted). Furthermore, in

determining if the ALJ’s decision is supported by substantial evidence the

court may not parse the record but rather must scrutinize the record as a

whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).

Recently, the Supreme Court in Biestek v. Berryhill, —U.S.—, 139 S.Ct.

1148, 1154 (2019), stated that “the threshold for [ ] evidentiary sufficiency

[substantial-evidence standard] is not high.” “It means—and means

only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. (citation omitted).

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

[her] physical or mental impairment or impairments are of such

severity that [she] is not only unable to do [her] previous work but

cannot, considering [her] 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 [she] lives, or whether a specific

job vacancy exists for [her], or whether [she] would be hired if

[she] 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).

II. RELEVANT MEDICAL EVIDENCE2

Judge Cohn’s report and recommendation (“R&R”), as well as the initial

briefs of the parties, contain a thorough review of the plaintiff’s medical

history. The plaintiff did not file any objections to Judge Cohn’s report with

2The court notes that since Judge Cohn stated the full procedural history

of this case in his report and since plaintiff did not object to it, the court will not

repeat it herein.

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respect to his medical history, so it will be adopted. See Butterfield v. Astrue,

2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010) (“To obtain de novo

determination of a magistrate [judge’s] findings by a district court, 28 U.S.C.

§636(b)(1) requires both timely and specific objections to the report.”) (quoting

Goney v. Clark, 749 F.2d 5, 6 (3d Cir.1984)). Also, since the five-step legal

framework for addressing a disability claim was properly stated in the R&R,

and the findings of the ALJ at each step is in the record, (Tr. 20-25), the court

incorporates by reference these portions of the R&R and the ALJ’s decision.

III. DISCUSSION

In October 2014, the plaintiff filed applications for DIB and SSI, alleging

an onset disability date of April 4, 2003. Subsequently, plaintiff amended his

alleged onset disability date to August 3, 2014. In a March 29, 2017 decision,

the ALJ found that the plaintiff was not disabled from August 3, 2014, through

the date of his decision.3 (Tr. 18, 27). Specifically, the ALJ found that the

plaintiff was not disabled regarding both his DIB application filed on October

28, 2014, and his SSI application filed on October 1, 2014. (Tr. 18) Plaintiff

was 49 years and 10 months old at the time of the ALJ’s decision. The ALJ

3December 31, 2020, is the last date that plaintiff meets the insured

status requirements of the Social Security Act. If the claimant is disabled by

the last date that he meets the requirements of being insured, he will receive

disability insurance benefits. See 42 U.S.C. §423(a)(1)(A), (c)(1).

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found that plaintiff had the following severe impairment, “congenital

hydrocephalus status-post ventriculoperitoneal shunt.” However, the ALJ

determined that plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the listed

impairments, namely, Listing 11.00, et seq. The ALJ also found that plaintiff’s

mental impairment of depression was not severe.

The plaintiff raises two objections to the R&R claiming that Judge Cohn

erred in his report with respect to his findings about the decision of the

Administrative Law Judge (“ALJ”), namely: (1) the judge erred in finding that

the ALJ correctly evaluated the opinions and functional assessments of

plaintiff’s treating physician, Dr. Thomas Grana, and erred in finding that the

ALJ gave proper weight to the state agency consultant; and (2) the judge

erred in finding that the ALJ correctly determined plaintiff’s RFC. These are

the same two issues which the plaintiff raised in his instant appeal regarding

alleged errors by the ALJ.4

The court has considered the R&R and the plaintiff’s objections to it.

The plaintiff contends that the ALJ should have given greater weight to the

opinion of his treating physician and that he improperly afforded too much

weight to the state consulting examiner. Upon de novo review of plaintiff’s first

4In his report, Judge Cohn specified the ALJ’s findings which plaintiff

challenged in his brief as well as his (Judge Cohn’s) reasoning for finding that

substantial evidence supported the ALJ’s findings. As such, the court does

not repeat these discussions herein.

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objection, the court finds that Judge Cohn correctly found that the ALJ did not

err in evaluating the May 2015 and September 2016 opinions of plaintiff’s

treating physician, Dr. Grana, and in affording little weight to his opinions.

“[T]he treating physician’s rule entitles the opinion of a treating physician

to controlling weight, absent significant evidence inconsistent with that

opinion.” Rodriguez v. Colvin, 2018 WL 1474073, *7 (E.D.Pa. March 23,

2018) (citations omitted). The Third Circuit has “long accepted” that the

findings of a treating physician “must [be] give[n] greater weight ... than ... the

findings of a physician who has examined the claimant only once or not at all.”

Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citations omitted). The

regulations as well as courts require the ALJ “give good reasons for the

amount of weight given to a treating physician’s opinion.” Fargnoli, 247 F.3d

42-44; see also 20 C.F.R. §404.1527(d)(2). However, a treating physician’s

opinion can be rejected by the ALJ based on contradictory medical evidence.

See Frankenfield, 861 F.2d at 408. Further, if the ALJ does not give a treating

physician’s opinion controlling weight, he must provide his reasons for the

weight given. 20 C.F.R. §404.1527.

The record, as discussed in detail by Judge Cohn, (Doc. 12 at 9),

supports the ALJ’s findings and the little weight he afforded to Dr. Grana’s

May 2015 and September 2016 opinions regarding the plaintiff’s conditions

and symptoms, and his answers in a questionnaire which basically indicated

that plaintiff was not able to work based on his symptoms. Additionally, Judge

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Cohn found that the ALJ’s determination that the plaintiff had the RFC to

perform light work was supported by the medical evidence, including the

December 2014 opinion of the state agency medical consultant, Dr. Balogh,

to which the ALJ afforded greater weight. (Doc. 12 at 10). No doubt that “the

opinions of non-examining physicians can override a treating source’s

opinions, provided that the former are supported by evidence in the record.”

Rodriguez, 2018 WL 1474073, *7 (citations omitted). Thus, if “the opinion of

a treating physician conflicts with that of a non-treating, non-examining

physician, the ALJ may choose whom to credit but cannot reject evidence for

no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d 310, 317 (3d

Cir. 2000). See also Diaz v. Commissioner, 577 F.3d 500, 505-06 (3d Cir.

2009) (“In evaluating medical reports, the ALJ is free to choose the medical

opinion of one doctor over that of another.”) (citation omitted). Here, the R&R

correctly finds that “[t]he ALJ’s allocating greater weight to the agency

opinions [particularly since “Dr. Balogh’s opinion is the only opinion in the

record that enumerates in detail [plaintiff’s] work-related limitations and

abilities”] and the ALJ’s final determination of disability is supported by

substantial evidence.” (Id. at 9-11).

The R&R concludes that since “[l]eading to the time of the ALJ decision

the medical records generally described [plaintiff’s] ‘intermittent’ symptoms”,

“[s]ubstantial evidence supports the ALJ’s conclusion that there was not a

significant deterioration of symptoms that would support greater weight to Dr.

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Grana’s opinions.”(Id. at 13).

Judge Cohn fully discusses how the record supports the ALJ’s decision

as to the little weight he afforded to Dr. Grana’s opinions regarding the extent

of the plaintiff’s condition and limitations. As such, the ALJ properly evaluated

the opinions Dr. Grana and explained how they were not supported by the

record. Further, despite the questionnaire completed by plaintiff’s treating

doctor essentially indicating that plaintiff’s symptoms would not permit him to

work, the finding of whether the plaintiff is disabled or unable to work is

reserved for the Commissioner. See Zonak v. Comm’r of Social Sec., 290

Fed.Appx. 493, 497 (3d Cir. 2008).

Judge Cohn applied the proper case law and regulations to the ALJ’s

findings regarding the opinions of Dr. Grana, and concluded that substantial

evidence supported the ALJ’s determinations. The court concurs with Judge

Cohn and his finding that the ALJ gave a thorough explanation in assigning

the little weight to Dr. Grana’s opinions and greater weight to the December

2014 opinion of Dr. Balogh. See Fullen v. Comm’r of Soc. Sec., 705

Fed.Appx. 121, 125 (3d Cir. 2017) (Third Circuit stated that “Morales v. Apfel

requires that ‘the ALJ accord treating physicians’ reports great weight,’ but

there is no requirement to accept those opinions if they are not supported by

sufficient evidence in the record.”); Myers v. Barnhart, 57 Fed.Appx. 990, 996

(3d Cir. 2003) (“[A]n ALJ can choose to accept the findings of evaluating,

non-examining state agency physicians over the opinions of treating

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physicians where the treating physicians' opinions were ‘conclusory and

unsupported by the medical evidence’ and contradictory to other medical

evidence of record.”) (citation omitted).

As such, plaintiff’s first objection to Judge Cohn’s report will be

overruled.

Secondly, the plaintiff argues that Judge Cohn erred when he found that

the ALJ properly determined his RFC. The ALJ found that plaintiff had an RFC

to perform light work, with limitations, which, by definition, meant that plaintiff

could lift no more than 20 pounds at a time with frequent lifting or carrying of

objects weighing up to 10 pounds.5 (Tr. 22). See 20 C.F.R. §416.967(b); 20

C.F.R. §404.1567(b).

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

C.F.R. §§404.1545(a)(3), 416.945(a)(3). 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.

Plaintiff basically contends that the ALJ cherry picked his medical

records and notes to support the finding that he was not disabled and failed

to review all of his records which showed the continuing and persistent nature

5Since the ALJ’s RFC determination is stated in his decision, the court

does not repeat it herein. (Tr. 22).

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of his symptoms, such as his constant migraine headaches and severe

stomach cramps. Contrary to plaintiff’s contention, the R&R concludes that

“the ALJ did not focus solely on isolated boilerplate reports reflecting Plaintiff’s

improvement while neglecting exacerbations in symptoms.” (citing Tr. 22-25).

The R&R also states that the ALJ did consider plaintiff’s testimony and

allegations of debilitating symptoms but found that “[Plaintiff’s] treatment

records consistently document generally unimpaired functional capability,

reflect only intermittent reports of headaches, and consistently note

assessments that the claimant's condition was stable and did not require

more than conservative care.” (Tr. 24). It then found that the ALJ’s RFC

determination was based upon a proper assessment of the plaintiff’s physical

capabilities and all of the medical evidence, and that the ALJ properly

determined that the plaintiff could perform light work activity.

Moreover, the ALJ discussed other medical evidence in the record

regarding the symptoms identified by plaintiff and Dr. Grana, and despite this

evidence, the ALJ found that the plaintiff could perform light work with

limitations. Also, a review of the record reflects that, although the ALJ gave

little weight to Dr. Grana’s opinions, including his May 2015 opinion that

plaintiff “was ‘fully disabled’ as a result of intermittent uncontrolled headaches

and mental status changes”, the ALJ’s RFC assessment was based upon the

evidence of record as a whole. The ALJ also gave greater weight to the

December 2014 opinion of Dr. Balogh who found that the plaintiff’s limitations

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did not prevent him from performing light work, and the ALJ relied upon this

doctor’s opinion to support his RFC assessment. (Tr. 24-25).

Thus, the court agrees with Judge Cohn’s conclusion that the ALJ

properly assessed the plaintiff’s RFC and, therefore finds that the ALJ’s RFC

determination is supported by substantial evidence in the record.

As such, plaintiff’s second objection to the R&R will be overruled.

Accordingly, both of the plaintiff’s objections, (Doc. 13), to Judge Cohn’s

report, (Doc. 12), will be overruled, and the report will be adopted in its

entirety.

III. CONCLUSION

In light of the foregoing, Judge Cohn’s report and recommendation,

(Doc. 12), is ADOPTED, and plaintiff’s objections, (Doc. 13), are

OVERRULED. Further, the plaintiff’s appeal, (Doc. 1), of the Commissioner’s

decision denying his applications for DIB and SSI is DENIED. A separate

order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: February 24, 2020

18-0913-01.wpd

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