# Rivera v. Berryhill

> District Court, M.D. Pennsylvania · December 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10409485

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE LUIS RIVERA JR.,
Plaintiff, :
v. : 3:18-CV-00031
: (JUDGE MARIANI)
ANDREW SAUL",
Defendant. :
MEMORANDUM OPINION
On January 5, 2018, Plaintiff Jose Rivera, Jr. 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 Joseph F. Saporito, Jr. to prepare a Report
and Recommendation (“R&R”). On March 15, 2019, Magistrate Judge Saporito issued an
R&R (Doc. 15) recommending that the Commissioner's final decision denying Plaintiff's
application for benefits should be vacated, and this case should be remanded to the
Commissioner to conduct a new administrative hearing. Defendant, the Commissioner of
Social Security, filed Objections (Doc. 16) on March 25, 2019, to which Plaintiff did not file a

response. Upon de novo review of Magistrate Judge Saporito’s R&R, the Court will overrule
Defendant'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, Defendant filed one objection to Magistrate
Judge Saporito’s findings. (Doc. 16).
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)).

Defendant objects to Magistrate Judge Saporito’s “finding that the ALJ inadequately
discussed the medical opinion offered by Dr. Evans and, therefore, his RFC assessment
lacked substantial support.” (Doc. 16 at 3-4). Defendant argues that the “the ALJ
sufficiently discussed Dr. Evans’s opinion and articulated that it was entitled to just partial
weight because the limitations resulting from Plaintiff's visual impairment were exaggerated
by Dr. Evans.” (Id. at 4).
At the outset, it is important to note that Dr. David Evans is an optometrist? who
performed an Ophthalmological Disability Examination of Plaintiff. (Doc. 8-10 at 47). In
discussing this medical opinion evidence, the ALJ highlighted Dr. Evans’ findings that
Plaintiff “could not read small print, could not read ordinary sized book print, could not
differentiate between small objects, and could not view a computer screen.” (Doc. 8-4 at
42). The ALJ gave this opinion partial weight, as he agreed that Plaintiff is “limited to a
degree,” but found that “the extent of the limitation is exaggerated” by Dr. Evans. (Doc. 8-4
at 42). More specifically, the ALJ did not accept Dr. Evans’ opinion that Plaintiff should be
completely restricted from using a computer monitor or screen, and instead allowed for such
use when the screen could be enlarged. (Id).
As the finder of fact, 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,

"2 Plaintif’s Brief mistakenly referred to Dr. Evans as an ophthalmologist. (Doc. 11 at 19).

461 (3d Cir. 2007). However, under the substantial evidence standard, the ALJ’s decision
must provide “a clear and satisfactory basis on which” his decision rests. Cotter v. Harris,
642 F.2d 700, 704 (3d Cir. 1981). In resolving conflicts in the evidence, the ALJ must
indicate which evidence was accepted, which evidence was rejected, and the reasons for
rejecting such evidence. /d. at 706-07.
In his R&R, Magistrate Judge Saporito found remand is necessary because “the ALJ
failed to consider, discuss, and weigh” the opinion evidence of Dr. Evans. Specifically,
Magistrate Judge Saporito found that the ALJ failed to include Dr. Evan’s findings that
Plaintiff had decreased central acuity due to macular changes from diabetic retinopathy, that
Plaintiff cannot sort, handle or use paper files due to blurred vision, and that Plaintiffs
limitations have lasted or will last for 12 consecutive months. (Doc. 15 at 20-21).
Magistrate Judge Saporito found, and the Court agrees, that the evidence presented by Dr.
Evans is significant and should have been addressed by the ALJ.
Magistrate Judge Saporito further noted that the ALJ failed to properly consider Dr.
Evans as a specialist. (Id. at 21). More weight is generally given to the medical opinion of a
specialist about medical issues related to his area of specialty than to the medical opinion of
a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5); See Batdorf v. Colvin, 206
F.Supp.3d 1012, 1022-23 (M.D.Pa 2016) (holding the ALJ erred in giving more weight to
the opinion of a state agency non-examining physician than to opinions of a consulting
examiner and a state agency medical consultant specializing in neurology).

Although Magistrate Judge Saporito found that the ALJ “made no reference to Dr.
Evans as a specialist,” Defendant points out that the ALu’s opinion did in fact refer to Dr.
Evans’ credentials as “OD” (Doctor of Optometry). (Doc. 15 at 18; Doc. 16 at 5-6).
Defendant argues this denotation indicates that the ALJ was “well aware of Dr. Evans’
specialty.” (Doc. 16 at 6). However, the ALJ’s opinion did not provide a discussion of Dr.
Evans’ status as a specialist, and as Magistrate Judge Saporito noted, it is unclear whether
the ALJ's failure to discuss Dr. Evan’s status as a specialist “was an oversight or if she
intentionally chose to ignore it.” (Doc. 15 at 21).
By contrast, Defendant argues the ALJ sufficiently supported his decision to give Dr.
Evans’ opinion partial weight by providing an example of a contradiction with Plaintiff's own
testimony. (Doc. 16 at 4). Specifically, the ALJ provided one example, stating that Dr.
Evans’ opinion that Plaintiff could not view a computer screen was inconsistent with the fact
that Plaintiff “readily admitted at the hearing that he is able to read print on a computer
screen, particularly if he is able to magnify the same.” (Doc. 8-4 at 42). However, this is a
misrepresentation of Plaintiff's hearing testimony. Regarding Plaintiff's ability to read small
print, the ALJ asked:
Q: And do - - you mentioned television. Do you do any reading or anything?
A: No, because | can’t see small print.
Q: And do you use any type of computer or monitor to enlarge the print to do
anything?
A: Sometimes my cell phone.
ATTY. So, you're clear. The question asked about looking at it and enlarging the
LMT: Yes, | enlarge the print to look at it.

Q: So if you enlarge the print, you can use something like that?
A: Yes, absolutely.
(Doc. 8-4 at 60-61). A fair reading of this exchange suggests that Plaintiff can only look at

a computer or monitor if he is able to enlarge the print, which he is able to do on his
cellphone. That is not the same as Plaintiff readily admitting he is able to read print on a
computer screen, “particularly if he is able to magnify’ it. (/d. at 42) (emphasis added). The
ALJ's potential mischaracterization of Plaintiff's testimony does not provide “a clear and
satisfactory basis” for why she chose to dismiss the medical opinion of a specialist that is
largely consistent with the medical records and Plaintiffs own testimony. Cotter, 642 F.2d
at 704.
Therefore, in consideration of the ALJ's failure to discuss many significant findings of
Dr. Evans, a specialist, the ALU’s reasoning for rejecting Dr. Evans’ opinion is not supported
by substantial evidence. The Court will overrule Plaintiffs Objection, adopt the pending
R&R, vacate the Commissioner of Social Security’s decision, and remand the case to the
Commissioner for further proceedings. A separate Order follow
a Viditine
Robert D. Mariani
United States District Judge

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