BARTMAS v. BERRYHILL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBYN M. BARTMAS )

)

Plaintiff, )

)

-vs- ) Civil Action 19-133

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

OPINION AND ORDER

Synopsis

Robyn M. Bartmas (“Bartmas”) seeks review of a decision denying her claim for

supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42

U.S.C. §§ 1318-1383. Bartmas filed her application in June 2015 alleging an onset of

disability on April 8, 2011. (R. 16) Her claim was denied initially. Following a hearing

during which both Bartmas and a vocational expert (“VE”) appeared and testified, the

ALJ denied benefits. Ultimately this appeal followed. The parties have filed Cross

Motions for Summary Judgment. See ECF Docket Nos. 13 and 16. For the reasons set

forth below, the ALJ’s decision is affirmed.

Opinion

I. Standard of Review

Judicial review of the Commissioner’s final decisions on disability claims is provided

by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court

to review the transcripts and records on which a determination of the Commissioner is

based, and the court will review the record as a whole. See 5 U.S.C. § 706. When

reviewing a decision, the district court’s role is limited to determining whether the record

contains substantial evidence to support an ALJ’s findings of fact. Burns v. Barnhart,

312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence has been defined as “more than

a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is

“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.

1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of

evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve,

a conflict created by countervailing evidence. Nor is evidence substantial if it is

overwhelmed by other evidence – particularly certain types of evidence (e.g., that

offered by treating physicians).” Id. The Commissioner’s findings of fact, if supported by

substantial evidence, are conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606

F.2d 403, 406 (3d Cir. 1979); Richardson, 402 U.S. at 390, 91 S. Ct. 1420.

A district court cannot conduct a de novo review of the Commissioner’s decision, or

re-weigh the evidence; the court can only judge the propriety of the decision with

reference to the grounds invoked by the Commissioner when the decision was

rendered. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery

Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Otherwise stated, “I

may not weigh the evidence or substitute my own conclusion for that of the ALJ. I must

defer to the ALJ’s evaluation of evidence, assessment of the credibility of witnesses,

and reconciliation of conflicting expert opinions. If the ALJ’s findings of fact are

supported by substantial evidence, I am bound by those findings, even if I would have

decided the factual inquiry differently.” Brunson v. Astrue, 2011 WL 2036692, 2011 U.S.

Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).

II. The ALJ’s Decision

The ALJ denied benefits at the fifth step of the analysis. More specifically, at step

one, the ALJ found that Bartmas has not engaged in substantial gainful activity since

the application date. (R. 18) At step two, the ALJ concluded that Bartmas suffers from

the following severe impairments: fibromyalgia with osteoarthrosis, carpal tunnel

syndrome, migraines, asthma and allergic rhinitis, degenerative disc disease, mood and

bipolar disorders, and anxiety disorders. (R. 18-19) At step three, the ALJ determined

that Bartmas did not have an impairment or combination of impairments that meets or

medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (R. 19-22) Between steps three and four, the ALJ decided that Bartmas

had the residual functional capacity (“RFC”) to perform light work with certain

restrictions. (R. 22-30) At the fourth step of the analysis, the ALJ concluded that

Bartmas was unable to return to her past relevant work. (R. 30) Ultimately, at the fifth

step of the analysis, the ALJ concluded that, considering Bartmas’s age, education,

work experience, and RFC, jobs exist in significant numbers in the national economy

that she could have performed. (R. 30-31)

III. Discussion

(1) Step Two – Vision Impairment

Bartmas challenges the ALJ’s conclusion at step two that her vision impairment did

not constitute a severe impairment. The ALJ evaluated Bartmas’s claim in this respect

but rejected it. Discussing Bartmas’s medical records, the ALJ noted that:

[t]he claimant has a history of treatment for eye impairments, but for the following

reasons, there are no severe vision issues during the period relevant to this

decision. The claimant has a history of treatment for vision issues, including surgery

(C10F, C24F, C25F, C26F, C35F), but all of this treatment pre-dated the period

relevant to this decision. As of July 2015, the claimant’s vision issues were

described as stable, and the claimant was described as “doing well.” While she was

noted to have developed a cataract, it was described as asymptomatic (C10F/5).

She has not provided evidence of any additional treatment specific to vision issues

since then, nor do the physical examinations she has had reference complaints of or

objective findings related to vision limitations. The record does not reflect more than

minimal vision limitations during the period relevant to this decision.

(R. 18) The ALJ’s decision is supported by substantial evidence in this regard. Dr.

Santora examined Bartmas in July 2015, shortly after Bartmas filed for disability, and

opined that Bartmas was “doing well” and that her glaucoma was “stable.” (R. 448)

Further, Santora noted that he discussed Bartmas’s pseudophakia diagnosis “in detail”

with her; that her “IOL(s) are clear and in good position” and that Bartmas was

instructed to call with any change or decrease in VA.” (R. 448) With respect to her

cataracts, Santora noted that they were asymptomatic and that treatment “is not

necessary at this time.” (R. 448) Further, the state agency medical consultant indicated

that Bartmas had no vision limitations. (R. 118-23) Consequently, there is no basis for

remand on this issue.

Additionally, even accepting Bartmas’s position as correct for purposes of

argument, such error was harmless because the ALJ found that Bartmas suffered from

other impairments which did qualify as “severe.” In other words, the ALJ did not end the

analysis at the second step. See Salles v. Commissioner of Soc. Sec., 229 Fed. Appx.

140, 145 n. 2 (3d Cir. 2007) (stating that, “[b]ecause the ALJ found in Salle’s favor at

Step Two, even if he had erroneously concluded that some of her other impairments

were non-severe, any error was harmless.”), citing, Rutherford v. Barnhart, 399 F.3d

546, 553 (3d Cir. 2005). See also, Roberts v. Astrue, Civ. No. 8-625, 2009 U.S. Dist.

LEXIS 91559, at * 5 (W.D. Pa. Sept. 30, 2009) and Bliss v. Astrue, Civ. No. 8-980, 2009

WL 413757 (W.D. Pa. Feb. 18, 2009). Accordingly, any alleged error was harmless, and

Bartmas’s contentions are rejected.

(2) Treating Physician Opinions

Bartmas also contends that the ALJ improperly weighed medical opinions. For

claims such as Bartmas’s that were filed before March 27, 2017, a treating physician’s

opinion should be given “controlling weight” provided that the opinion is well-supported

by medically acceptable clinical and laboratory diagnostic techniques and not

inconsistent with other substantial evidence of record. See 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). See also, Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2010). “The

ALJ may not reject a physician’s findings unless she first weighs the findings against

other relevant evidence and explains why certain evidence has been accepted and

other evidence rejected.” Scandone v. Astrue, Civ. No. 05-4833, 2011 WL 3652476, at

*7 (E.D. Pa. Aug. 18, 2011). Of course, “[t]he law is very clear … that the opinion of a

treating physician does not bind the ALJ on the issue of functional capacity.” Chandler

v. Commissioner of Social Security, 667 F.3d 356, 361 (3d Cir. 2011), quoting, Brown v.

Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011). Additionally, opinions proffered by state

agency medical and psychological consultants merit significant consideration as well

because they are considered experts in the Social Security disability programs.

Chandler, 667 F.3d at 361, citing, 20 C.F.R. §§ 404.1527(f), 416.927(f).

In the event of conflicting medical evidence, the Court of Appeals for the Third

Circuit has explained:

“A cardinal principle guiding disability determinations is that the ALJ accord treating

physicians’ reports great weight, especially ‘when their opinions reflect expert

judgment based on continuing observation of the patient’s condition over a

prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317 (3rd Cir. 2000)

(quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, “where …

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

physician, the ALJ may choose whom to credit” and may reject the treating

physician’s assessment if such rejection is based on contradictory medical evidence.

Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating physician is

to be given controlling weight only when it is well-supported by medical evidence

and is consistent with other evidence in the record.

Becker v. Comm’r. of Soc. Sec. Admin., Civ. No. 10-2517, 2010 WL 5078238, at * 5 (3d

Cir. Dec. 14, 2010). Although the ALJ may choose whom to credit when faced with a

conflict, he “cannot reject evidence for no reason or for the wrong reason.” Diaz v.

Comm’r. of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009).

Here, Bartmas contends that the ALJ erred in failing to follow the standard above

with respect to the opinions rendered by Dr. Sargent and Dr. Jopindar Harika. I find that

the ALJ weighed all of the opinions in consideration with all of the evidence of record

and that there is no basis for remand. For instance, the ALJ’s discounting of the

Pennsylvania Department of Public Welfare Medical Assessment Forms that Sargent

completed between August 19, 2010 and November 16, 2017 as well as the physical

capacity evaluation he completed on November 16, 2017 is consistent with the

regulations. See 20 C.F.R. § 416.904.1 The ALJ explained, “those forms were

completed for programs other than Social Security disability … and, as such, they are

unpersuasive in establishing the limitations in functioning adopted herein.” (R. 27)

Further, the opinions were devoid of any functional assessments and, as the ALJ noted,

Sargent’s statements that Bartmas was “disabled” is a legal conclusion reserved for the

Commissioner. See 20 C.F.R. § 416.927(d)(3). (R. 563-89) These are appropriate

reasons for discounting Sargent’s statements. The ALJ also adequately discussed and

supported his decision to reject Sargent’s opinion that Bartmas would miss 15 to 20

days of work per month and that she required a rolator / wheelchair. (R. 18) As the ALJ

explained, the record indicated that Bartmas needed an assistive device only following

an acute injury and that longitudinal records did not support the need for an assistive

device thereafter. (R. 18) Similarly, the ALJ explained that Bartmas presented with

normal strength, balance, cranial nerves, range of motion, reflexes and gait during

examinations. (R. 18, 27, 350, 352, 491, 504) Any “flares” which Bartmas displayed

were occasional and did not have record support for a conclusion that they would

require Bartmas to miss 15 to 20 days of work per month. (R. 27)

1 As stated above, Bartmas filed his claim prior to March 27, 2017. Consequently, the prior version of Section

916.904 applies. It has since been rescinded. The new version provides that: “Other governmental agencies and

nongovernmental entities – such as the Department of Veteran Affairs, the Department of Defense, the Department

of Labor, the Office of Personnel Management, State agencies, and private insurers – make disability, blindness,

employability, Medicaid, workers’ compensation, and other benefits decisions for their own programs using their

own rules. Because a decision by any other governmental agency or nongovernmental entity about whether you are

disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our

decision about whether you are disabled or blind under our rules.” 20 C.F.R. §§ 404.1504, 416.904. As a result, for

claims filed on or after March 27, 2017, “we will not provide any analysis in our determination or decision about a

decision made by any governmental entity about whether you are disabled, blind, employable, or entitled to any

benefits.” Id. ALJs are still required, however, to “consider all of the supporting evidence underlying the

governmental agency or nongovernmental entity’s decision that [they] receive as evidence in your claim….” Id.

Similarly, I find no error in the ALJ’s treatment of Dr. Harika’s opinion. The ALJ

gave Harika’s opinion little weight because he found it to be internally inconsistent and

not supported by or consistent with Bartmas’s longitudinal records. (R. 20, 27) These

are appropriate reasons for discounting an opinion. See 20 C.F.R. 416.927. Substantial

evidence supports his conclusions in this regard. As the ALJ explained, during the time

period relevant to this inquiry, Bartmas has received only “routine therapy and

medication management.” (R. 20) Bartmas routinely received global assessment of

functioning scores of 55 during her treatment throughout 2015, which indicates no more

than moderate symptoms. (R. 20) Treatment records also describe Bartmas as within

normal limits “with respect to her appearance, motor/behavior, speech, thought

processes, thought content, and insight and judgment.” (R. 20) Further, Dr. Harika

believed that Bartmas would be able to manage benefits in her own self-interest. (R. 20)

Consequently, there is no basis for remand on this issue.

(3) Residual Functional Capacity

Here, the ALJ found that Bartmas had the RFC to perform:

Light work as defined I 20 C.F.R. 416.967(b) lifting up to 20-pounds occasionally

and lift or carry up to 10-pounds frequently; where she can stand or walk for

approximately four-hours per eight-hour workday and sit for approximately six-

hours of an eight-hour workday; where she can frequently reach overhead,

handle, finger, and feel; where she avoids concentrated exposure to irritants

such as fumes, odors, dusts, and gases; where she is limited to SVP 1-2 jobs,

simple, routine, repetitive tasks involving only simple work related decisions and

few, if any, work place changes and occasional interaction with the public,

occasional interaction with coworkers with no tandem tasks, and occasional

supervision.

(R. 21)

Bartmas cites to evidence supporting her contention that the RFC should have

included limitations regarding her vision impairment, fibromyalgia, osteoarthritis and

carpal tunnel syndrome.2 Yet the standard is not whether there is evidence to establish

a claimant’s position. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir. 1989).

[The] question is not whether substantial evidence supports Plaintiff’s claims, or

whether there is evidence that is inconsistent with the ALJ’s finding…. Substantial

evidence could support both Plaintiff’s claims and the ALJ’s findings because

substantial evidence is less than a preponderance. Jesurum v. Sec’y. of U.S. Dep’t.

of Health & Human Services, 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v.

Perales, 402 U.S. 389, 401 (1971). If substantial evidence supports the ALJ’s

finding, it does not matter if substantial evidence also supports Plaintiff’s claims.

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003).

Weidow v. Colvin, Civ. No. 15-765, 2016 WL 5871164, at * 18 (M.D. Pa. Oct. 7, 2016).

Thus, Bartmas’s argument is misplaced. Bartmas seems to suggest again in this section

that the ALJ should have weighed the opinion evidence differently as it relates to Dr.

Sargent. As set forth above, I have reviewed the evidence of record and, based on the

same, I find that there is substantial evidence to support the weight given by the ALJ to

Sargent’s opinion.

I further find that the RFC determination is supported by substantial evidence of

record. The ALJ explained that he imposed lifting, carrying, standing and walking

restrictions in order to account for Bartmas’s fibromyalgia and osteoarthritis. (R. 21-25)

As stated above, Bartmas’s routine physical examinations were unremarkable, she had

intact muscle strength, normal balance and range of motion, displayed a normal gait,

and was able to rise from a chair without difficulty. The ALJ also accounted for

Bartmas’s carpal tunnel syndrome by a limitation to frequent handling, fingering and

2 Bartmas does not offer any arguments regarding the RFC findings regarding her asthma and allergies, her

migraines or her mental impairments. Consequently, I will not address them.

feeling. (R. 24) EMG testing showed only “mild’ right median neuropathy of the wrist” on

the right side and none on the left. (R. 24) The ALJ also noted an October 2017

examination in which Bartmas displayed full range of motion in all fingers and full grip

strength and which resulted only in a recommendation of wearing a brace at night. (R.

24-25)

Consequently, remand is not warranted on this basis.

(4) Subjective Complaints of Pain

Bartmas also takes issue with the ALJ’s evaluation of her subjective complaints of

pain. As the ALJ stated, he must follow a two-step process when assessing pain: first,

he must determine whether there is a medical impairment that could reasonably be

expected to produce the claimant’s pain or other symptoms; and, second, he must

evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms to

determine the extent to which they limit the claimant’s functioning. (R. 21) Pain alone

does not establish disability. 20 C.F.R. §§ 404.1529(a), 416.929(a). Allegations of pain

must be consistent with objective medical evidence and the ALJ must explain the

reasons for rejecting non-medical testimony. Burnett v. Comm’r. of Soc. Sec., 220 F.3d

112, 121 (3d Cir. 2000). In evaluating a claimant’s statements regarding pain, the ALJ

will consider evidence from treating, examining and consulting physicians; observations

from agency employees; and other factors such as the claimant’s daily activities;

descriptions of the pain; precipitating and aggravating factors; type, dosage,

effectiveness, and side effects of medications; treatment other than medication; and

other measures used to relieve the pain. "20 C.F.R. §§ 404.1529, 416.929; SSR 16-

3p. | must defer to the ALJ’s determinations, unless they are not supported by

10

substantial evidence. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v.

Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975).

Here, the ALJ specifically stated that he considered “all symptoms and the extent

to which these symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence, based on the requirements of 20 CFR

416.929and SSR 16-3p. “ (R. 21) Moreover, the ALJ followed the proper method in

assessing Bartmas’s symptoms and pain. That is, he first determined whether there was

an underlying medically determinable physical or mental impairment that could

reasonably be expected to produce Bartmas’s pain or other symptoms, then he

evaluated the intensity, persistence and limiting effects of those symptoms. (R. 21-29)

The ALJ properly compared the medical evidence and other evidence of record,

including activities of daily living, to Bartmas’s testimony, and found them not to be

entirely consistent. (R. 22) For instance, as stated above, despite complaints of

disabling pain, Bartmas continuously exhibited normal gait, full or good strength,

minimal fatigue, fairly mild symptoms, and normal range of motion. (R. 21-24) Because I

find that the ALJ properly assessed Bartmas’s pain and that there is substantial

evidence to support the ALJ’s decision in this regard, remand is not warranted.3

(5) Hypothetical

Finally, Bartmas contends that the ALJ improperly rejected the testimony of the VE

and relied upon an incomplete hypothetical question. Bartmas’s contentions are

3 Bartmas’s argument is neither well-developed nor supported by any citation to the record. She alleges that “the

overwhelming evidence supports the conclusion that Plaintiff has had severe pain and that the complains by Plaintiff

wee entitled to great weight.” See ECF Docket No. 14, p. 24. Again, as stated above, this is the wrong standard. The

issue before me is whether the ALJ’s decision is supported by substantial evidence of record. Bartmas makes no

effort to demonstrate that it is not. Consequently, I find it to be entirely unpersuasive.

unpersuasive. An ALJ is only required to accept the responses that accurately reflect a

claimant’s impairments. See Podedworny v. Harris, 754 F.2d 210, 218 (3d Cir. 1984);

Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Here, as set forth in the

preceding sections, the record reveals substantial evidence that the hypothetical

questions the ALJ adopted accurately reflected Bartmas’s impairments. Consequently, I

find no error on this issue.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBYN M. BARTMAS )

Plaintiff, )

-vs- ) Civil Action No. 19-133

)

ANDREW M. SAUL, )

)

Defendant. )

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 5th day of March, 2020, it is hereby ORDERED that the Motion for

Summary Judgment (Docket No. 16) is GRANTED and the Motion for Summary

Judgment (Docket No. 13) is DENIED. It is further ORDERED that the Clerk of Courts

mark this case “Closed” forthwith.

BY THE COURT:

/s/ Donetta W. Ambrose

Donetta W. Ambrose

United States Senior District Judge