The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER COMEROTA,
Plaintiff,
V. : 3:17-CV-1758
: (JUDGE MARIANI)
ANDREW SAUL’,
Defendant. :
MEMORANDUM OPINION
On September 28, 2017, Plaintiff Peter J. Comerota filed a Complaint seeking
judicial review of a final decision made by Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security, denying his application for Social Security Disability
benefits. (Doc. 1). This matter was referred to Magistrate Judge Martin C. Carlson to
prepare a Report and Recommendation (“R&R”). On July 3, 2018, Magistrate Judge
Carlson issued an R&R (Doc. 14) recommending that the Commissioner's final decision
denying Plaintiff's claim be affirmed and that Plaintiffs appeal should be denied. Plaintiff
filed Objections (Doc. 15) on July 17, 2018, to which Defendant filed a response (Doc. 16).
Upon de novo review of Magistrate Judge Carlson's R&R, the Court will overrule Plaintiff's
Objections and adopt the pending R&R.
‘ Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g),
Commissioner Andrew Saul is automatically substituted as the named Defendant in place of the former
Commissioner of Social Security.
{
A District Court may “designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition” of certain matters pending before the Court. 28
U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate
Judge's Report and Recommendation, the District Court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” /d. at § 636(b)(1)(C); see also, Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011); M.D. Pa. Local Rule 72.3.
Here, in response to the pending R&R, Plaintiff filed four objections which this Court
will address in turn.
When reviewing the Commissioner's final decision denying a claimant's application
for Disability Insurance Benefits, a District Court is limited to a deferential review of whether
there is substantial evidence to support the findings of the Commissioner. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Johnson v. Comm’r of Soc. 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, 565 (1988) (quoting Consol. Edison Co.
of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Factual findings which are supported
by substantial evidence must be upheld. Ficca v. Astrue, 901 F.Supp.2d, 533, 536 (M.D.
Pa. 2012) (citing 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)).
Plaintiff first objects to Magistrate Judge Carlson’s finding that Plaintiff could perform
the jobs listed by the Vocational Expert. (Doc. 15 at 1). More specifically, Plaintiff claims
that the jobs listed by the Vocational Expert “could involve frequent stooping,” which
conflicts with the Administrative Law Judge’s (ALJ) finding that Plaintiff's residual functional
capacity (RFC) includes the limitation of only occasionally stooping. (Id). To support this
claim, Plaintiff asserts that “the Dictionary of Occupational Titles states that each of those
positions ‘may require frequent stooping” without citation. (/d at 1-2).
The ALJ found, based upon “careful consideration of the entire record,” that Plaintiff
has the RFC to perform medium work as defined by 20 C.F.R. 404.1567(c) and 416.967(c),
except, among other limitations, that Plaintiff “occasionally balance, stoop, kneel, crouch,
and crawl.” (Doc. 9-2 at 27). The Vocational Expert testified that, given Plaintiffs age,
education, work experience, and RFC, Plaintiff would be able to perform the requirements
for a warehouse worker (DOT # 922.687-058), an assembler (DOT # 709.684-014), and as
a kitchen worker (DOT # 318.687-010). (Id. at 72). The ALJ determined that “the vocational
expert's testimony is consistent with the information contained in the Dictionary of
Occupational Titles.” (/d. at 33). Plaintiff offers no explanation, citation, or quoted language
in his Objections (Doc. 15) or in his Brief (Doc. 10) that describes precisely how the
Vocational Expert's opinion on Plaintiffs ability to perform these jobs is inconsistent with
their description in Dictionary of Occupational Titles as to frequency of stooping. Although
Magistrate Judge Carlson found “the nature of this alleged conflict is both narrow and
.
relatively minor,” this Court is unable to identify the nature of this conflict at all due to
Plaintiff's failure to specifically identify any inconsistency. (Doc. 14 at 28). Furthermore,
even if there was a potential identifiable conflict, Social Security Ruling (SSR) 00-4p
requires that an adjudicator only obtain a reasonable explanation when the Vocational
Expert's evidence appears to conflict with the Dictionary of Occupational Titles. Social
Security Ruling (SSR) 00-4p (S.S.A. Dec. 4, 2000), 2000 WL 1898704, at “4. Therefore, the
Court finds the ALJ’s determination as to Plaintiffs ability to perform the jobs listed by the
Vocational Expert is supported by substantial evidence.
Plaintiff's second objection is directed at Magistrate Judge Carlson's finding “that
there was substantial evidence supporting the Administrative Law Judge's rejection of Dr.
Patel’s opinion.” (Doc. 15 at 2). Plaintiff argues that the only way the ALJ could reject Dr.
Patel’s opinion would be to “impermissibly substitute her own medical opinion for that of Dr.
Patel.” (Doc. 15 at 2). However, as Magistrate Judge Carlson noted, the ALJ largely
adopted the limitations found by Dr. Patel when determining Plaintiffs RFC. (Doc. 14 at 25-
26; Doc. 9-2 at 30-31).
An ALJ is entitled generally to credit parts of a medical opinion without crediting the
entire opinion. Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at “5
(M.D.Pa Mar. 23, 205) (citing Lee v. Comm’r Soc. Sec., 248 F.App’x 458, 461 (3d Cir. 2007)
(Upholding the findings of the ALJ where the ALJ had afforded “great weight” to the opinions
of treating physicians, but did not “fully credit” them where there were treatments gaps in
their records that undermined Plaintiff's claimed severity). Here, the ALJ gave “partial
weight’ to Dr. Patel’s opinion “in consideration of the claimant's ability to lift and carry and
perform manipulative and postural activities,” but found that Dr. Patel’s opinion as to
Plaintiffs “inability to sit, stand, and walk for less than eight hours total in a workday” was
not supported by the record. (Doc. 9-2 at 31). As Magistrate Judge Carlson noted in the
R&R, the ALJ gave partial credit to several medical opinions in formulating the limitations in
Plaintiffs RFC.2 (Doc. 14 at 26). The ALJ also noted that such limitations found by Dr.
Patel were inconsistent with other abilities found by Dr. Patel, such as his finding that
Plaintiff can operate a motor vehicle on a frequent basis, and that Plaintiff has no
ambulatory limitations. (Doc. 9-2 at 31). Itis important to note that “[i]n the process of
reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute
[our own] conclusions for those of the fact-finder.” Rutherford v. Barnhart, 399 F.3d 546,
992 (3d Cir. 2005) (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Therefore, the Court finds that substantial evidence supports the ALJ’s decision to partially
credit Dr. Patel’s opinion.
Similarly, Plaintiffs third objection is to Magistrate Judge Carlson's finding that the
ALJ properly gave partial weight to the opinion of Dr. Long. (Doc. 15 at 3). Although he
accepted some parts of Dr. Long's opinion, the ALJ found “Dr. Long’s opinion regarding the
2 In addition to Dr. Pater’s medical opinion, the ALJ gave partial weight to the medical opinion of Dr.
Spencer Long, who performed a consultative medical examination of Plaintiff and completed a medical
source statement, as well as the medical opinion of Dr. John Tardibuono, who assessed Plaintiff's
functional abilities and limitations. (Doc. 9-2 at 28-29).
claimant's exertional abilities, specifically his ability to stand and walk in a workday, is not
supported by or consistent with the record as a whole, including his own testimony
regarding his ability to stand and Dr. Long’s own objective findings.” (Doc. 9-2 at 30).
Plaintiff argues the ALJ did not provide an adequate explanation for rejecting part of Dr.
Long’s opinion. (Doc. 15 at 3). However, the ALJ pointed to specific findings of Dr. Long
that he found were inconsistent with Dr. Long’s conclusions regarding Plaintiffs exertional
abilities. (Doc. 9-2 at 30). As explained above, an ALJ is entitled generally to credit parts
of a medical opinion without crediting the entire opinion. Thackara, 2015 WL 1295956, at “S
(citing Lee, 248 F.App’x at 461). Thus, the Court finds that substantial evidence supports
the ALJ’s decision to partially credit Dr. Long’s opinion.
Plaintiff's final objection is to Magistrate Judge Carlson’s finding that the ALJ
properly rejected the testimony of the Plaintiff. (Doc. 15 at 4). Plaintiffs entire argument
rests on the assertion that “his testimony as to his pain and limitations is consistent with the
limitations set forth by Dr. Patel.” (/d). The court generally defers to the ALJ’s assessment
of credibility. Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014). In making these
credibility determinations, the ALJ “must specifically identify and explain what evidence he
found not credible and why he found it not credible.” /d (citing Adorno v. Shalala, 40 F.3d
43, 48 (3d Cir. 1994). “Although the ALJ is required to give great weight to the claimant's
3 Specifically, the ALJ pointed to Dr. Long's findings that Plaintiff “presented with no sensory deficit,
9/5 strength in his upper and lower extremities, intact hand and finger dexterity, and 5/5 grip strength
bilaterally (Exhibit 6F).” (Doc. 9-2 at 30).
testimony of subjective complaints, he has the right, as the fact finder, to reject partially, or
even entirely, such subjective complaints if they are not fully credible.” Weber v. Massanari,
156 F.Supp.2d 475, 485 (E.D. Pa. 2001) (citing Baerga v. Richardson, 500 F.2d 309, 312
(3d Cir. 1974). Here, the ALJ found “the claimant's allegations regarding the limiting effects
of his alleged conditions are not supported by the record.” (Doc. 9-2 at 31). To support this
conclusion, the ALJ cited to numerous examples in the record which he determined
discredited Plaintiffs allegations, including Plaintiff's discharge from pain management after
a drug relapse with heroin use, the fact that Plaintiff did not seek further treatment for his
alleged low back symptoms after obtaining health insurance coverage, and that Plaintiff's
consultative examination indicates he ambulated only with a slightly antalgic gait without the
use of an assistive device. (/d. at 31). The Court therefore finds that the ALJ's decision to
reject Plaintiff's allegations regarding the limiting effects of his alleged conditions is
supported by substantial evidence.
For the above-discussed reasons, the Court will overrule Plaintiffs Objections, adopt
the pending R&R, and affirm the Commissioner of Social Security's final decision. A
separate Order follows. \
Robert D--Mariani
United States District Judge