FOUSER v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT WARREN FOUSER, )

)

Plaintiff, )

)

v. ) Civil Action No. 18-649

)

NANCY A. BERRYHILL, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 16th day of September, 2019, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and denying Plaintiff’s claim

for supplemental security income benefits under Subchapter XVI of the Social Security Act, 42

U.S.C. § 1381 et seq., finds that the Commissioner’s findings are supported by substantial

evidence and, accordingly, affirms. See 42 U.S.C. § 405(g); Jesurum v. Secretary of U.S.

Department of Health & Human Services, 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). See also Berry v. Sullivan, 738 F. Supp. 942, 944

(W.D. Pa. 1990) (if supported by substantial evidence, the Commissioner’s decision must be

affirmed, as a federal court may neither reweigh the evidence, nor reverse, merely because it

would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.

1981)).1

1 Plaintiff argues that the Administrative Law Judge (“ALJ”) failed to properly

evaluate the medical opinion evidence in finding him to be not disabled under the Social Security

Act. The Court disagrees and instead finds that substantial evidence supports the ALJ’s decision

that Plaintiff is not disabled.

Plaintiff first asserts that the ALJ erred in giving little weight to the June 22, 2015

opinion submitted by his treating therapist, Ashley Fina, L.P.C., and apparently approved by his

treating psychiatrist, Charles Franchino, M.D. (R. 587-91), in finding that he did not meet the

requirements of Listing 12.04, 20 C.F.R. Part 404, Subpart P, Appendix 1, at Step Three of the

sequential analysis, as well as in formulating his residual functional capacity (“RFC”). Plaintiff

contends that the ALJ’s rejection of this opinion was not adequately explained and not supported

by substantial evidence. The Court, however, finds that the ALJ properly analyzed the opinion

evidence in making his findings in this case.

It is well established under social security law that when assessing a claimant’s

application for benefits, the opinion of the claimant’s treating physician generally is to be

afforded significant weight. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer

v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). In fact, the regulations provide that for claims, such

as this one, filed before March 27, 2017, a treating physician’s opinion is to be given

“controlling weight” so long as the opinion is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the

record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Fargnoli, 247 F.3d at 43; Plummer, 186

F.3d at 429. As a result, the ALJ may reject a treating physician’s opinion outright only on the

basis of contradictory medical evidence, and not on the basis of the ALJ’s own judgment or

speculation, although he may afford a treating physician’s opinion more or less weight

depending upon the extent to which supporting explanations are provided. See Plummer, 186

F.3d at 429. However, it is also important to remember that:

The ALJ -- not treating or examining physicians or State agency

consultants -- must make the ultimate disability and RFC

determinations. Although treating and examining physician

opinions often deserve more weight than the opinions of doctors

who review records, “[t]he law is clear . . . that the opinion of a

treating physician does not bind the ALJ on the issue of functional

capacity[.]” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d

Cir.2011). State agent opinions merit significant consideration as

well.

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (internal citations omitted in

part).

As a threshold matter, Plaintiff alleges that the ALJ did not acknowledge that Dr.

Franchino endorsed the June 22, 2015 opinion. It is clear that Ms. Fina is the one who actually

prepared the opinion, and that Dr. Franchino had signed as the “approving” doctor. (R. 589,

591). As it is not clear what “approved by” meant in this context, it is not clear to what extent

Dr. Franchino actually “endorsed” the opinion. Nonetheless, the ALJ, after accurately

identifying the opinion as being that of Ms. Fina, made reference to “they” when discussing the

opinion, apparently acknowledging the signature of Dr. Franchino. (R.24). Moreover, the ALJ

discussed Dr. Franchino’s treatment records and was clearly aware of his treating relationship

with Plaintiff. (R. 22).

In any event, the ALJ’s treatment of the opinion is supported by substantial

evidence. Plaintiff, in arguing that the ALJ lacked a sufficient basis for rejecting the more

stringent limitations contained in the June 22 opinion, essentially just disagrees with the ALJ’s

assessment of the record, arguing that there is “ample” support for the opinion prepared by Ms.

Fina in the record. (Doc. No. 10 at 11). To the extent that Plaintiff invites the Court to adopt his

own analysis as to how consistent Ms. Fina and Dr. Franchino’s opinion is with the record as a

whole, the Court emphasizes that, if supported by substantial evidence, the Commissioner’s

decision must be affirmed, as a federal court may neither reweigh the evidence, nor reverse,

merely because it would have decided the claim differently. See Monsour Med. Ctr. v. Heckler,

806 F.2d 1185, 1190-91 (3d Cir. 1986); Berry, 738 F. Supp. at 944 (citing Cotter, 642 F.2d at

705). Likewise, it is not enough that Plaintiff offers his own analysis as to how he believes the

record supports the June 22 opinion. “The presence of evidence in the record that supports a

contrary conclusion does not undermine the [ALJ’s] decision so long as the record provides

substantial support for that decision.” Malloy v. Comm’r of Soc. Sec., 306 Fed. Appx. 761, 764

(3d Cir. 2009). The ALJ discussed the opinion prepared by Ms. Fina in significant detail and

provided a sufficient basis for his analysis, pointing out inconsistencies between the opinion and

the treatment records and Plaintiff’s activities of daily living. (R. 20). He also noted Plaintiff’s

“lack of motivation to participate in treatment” as evidence that his symptoms were not as

limiting as alleged. (R. 23, 693).

Moreover, contrary to Plaintiff’s contentions to the contrary, the ALJ did not

misrepresent the record or “cherry-pick” only those parts of the record that weighed against a

finding of disability. For example, Plaintiff argues that the ALJ’s decision is bereft of any

discussion of his reported perceptual disturbances, such as visual and audio hallucinations. (Doc.

No. 10 at 11). However, the ALJ expressly acknowledged those symptoms and explained how

they factored into his findings. (R. 22-23). The Court further notes that Plaintiff’s reports of

transient perceptual disturbances were generally either vague or not deemed to be particularly

problematic. (R. 658, 746-47, 749). No treating physician suggested any functional limitations

resulting from these limited perceptual disturbances. Even when they became more “troubling,”

Plaintiff was assigned a Global Assessment of Functioning score of 55, reflecting moderate

symptoms. (R. 763-64). The ALJ’s discussion of these symptoms, and of the medical record as

a whole, was accurate and even-handed, particularly in light of the fact that an ALJ need not

discuss every piece of evidence in the record as long as the reviewing court can determine the

basis for the decision. See Fargnoli, 247 F.3d at 42; Tisoit v. Barnhart, 127 Fed. Appx. 572, 575

(3d Cir. 2005).

The ALJ also relied on the opinion of state reviewing agent Phyllis Brentzel,

Psy.D., which provided for significantly less substantial restrictions in regard to Plaintiff’s

mental functional capacity. Plaintiff argues, though, that giving more weight to the opinion of

Dr. Brentzel than to that of the treating therapist and psychiatrist was improper. However,

although “the opinions of a doctor who has never examined a patient have less probative force as

a general matter, than they would have had if the doctor had treated or examined him,” Morales

v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000) (internal quotations omitted), where “the opinion of a

treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may

choose whom to credit.” Id. at 317. See also Dula v. Barnhart, 129 Fed. Appx. 715, 718-19 (3d

Cir. 2005). The ALJ, of course, “‘cannot reject evidence for no reason or for the wrong reason,’”

Morales, 225 F.3d at 317 (quoting Plummer, 186 F.3d at 429), and can only give the opinion of a

non-treating, non-examining physician weight insofar as it is supported by evidence in the case

record, considering such factors as the supportability of the opinion in the evidence, the

consistency of the opinion with the record as a whole, including other medical opinions, and any

explanation provided for the opinion. See Social Security Ruling 96-6p, 1996 WL 374180

(S.S.A.), at *2 (1996). In certain cases, it would not be unwarranted to give more weight to the

non-examining professional’s opinion. See Salerno v. Comm’r of Soc. Sec., 152 Fed. Appx. 208

(3d Cir. 2005) (affirming an ALJ’s decision to credit the opinion of the non-examining state

agency reviewing psychologist because his opinion was more supported by the record than the

opinions of the treating physician and the consultative examiner).

Here, the ALJ adequately discussed the record and its consistency with the

opinion of the state reviewing agent. Plaintiff objects, however, due to the fact that Dr. Brentzel,

who rendered her opinion on February 17, 2015, did not have access to later record evidence,

including Ms. Fina and Dr. Franchino’s opinion. It is not unexpected for the record to contain

evidence post-dating the state reviewing agent’s opinion. Generally speaking, “there is always a

time lapse between the consultant’s report and the ALJ hearing and decision.” Chandler, 667

F.3d at 361. The record here does not demonstrate significant changes in Plaintiff’s condition

from the time Dr. Brentzel rendered her opinion and when the ALJ issued his opinion. Although

Dr. Brentzel obviously did not have access to later evidence, including the opinion prepared by

Ms. Fina, the ALJ was aware of and considered and discussed said evidence in making his

determinations. The Court further notes that the opinion that Plaintiff asserts should have been

accepted by the ALJ – Ms. Fina and Dr. Franchino’s opinion – was from merely a few months

after Dr. Brentzel’s opinion. Moreover, that opinion did not in any way purport to address

changes in Plaintiff’s condition from after February 17, 2015.

Plaintiff also alleges that the ALJ gave insufficient weight to the opinion of

consultative examiner Mohammad K. Malik, M.D. (R. 572-84), in regard to her physical

functional limitations. Again, though, the Court finds the ALJ’s discussion of this opinion to be

sufficient and to be supported by substantial evidence. The Court first notes that the ALJ did not

reject Dr. Malik’s opinion, but rather gave it partial weight. (R. 24). Indeed, while the RFC

formulated by the ALJ did contain fewer restrictions as to Plaintiff’s ability to sit, stand, and

walk (R. 18, 577), it was actually significantly more restrictive in other ways, particularly

regarding Plaintiff’s postural and environmental limitations. (R. 18, 579-80). Furthermore, the

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (document No. 9) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 11) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

ALJ explained how he accounted for Plaintiff’s limitations in sitting by including in the RFC a

requirement that Plaintiff have the option of changing position throughout the day. (R. 24). In

addition, the ALJ relied on the opinion of state reviewing agent Nghia Van Tran, M.D. (R. 90-

121), which was less restrictive in regard to Plaintiff’s ability to sit, stand, and walk, and which

was rendered after consideration of Dr. Malik’s opinion. (R. 92, 108). Finally, unlike Ms. Fina

and Dr. Franchino, Dr. Malik had no treating relationship with Plaintiff but, rather, performed a

one-time consultative examination. The Court finds the ALJ’s consideration of these opinions to

be sufficient and again notes that he, in fact, relied on both Dr. Malik’s and Dr. Van Tran’s

opinions, in addition to the objective medical evidence and other evidence of record, in

determining Plaintiff’s physical RFC.

Accordingly, the ALJ adequately explained the basis for his findings, and

substantial evidence supports his decision. The Court therefore affirms.