GOVACHINI v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CLARA GOVACHINI, )

)

Plaintiff, )

)

v. ) Civil Action No. 19-1433

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

O R D E R

AND NOW, this 23rd day of September, 2020, 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 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 include

limitations accounting for her need for a supported work environment in formulating her

residual functional capacity (“RFC”). She asserts that all of her examining psychologists

had opined to the need for such a limitation and that the ALJ improperly rejected their

collective opinion. The Court disagrees and instead finds that substantial evidence

supports the ALJ’s findings regarding Plaintiff’s RFC and her ultimate determination that

Plaintiff is not disabled.

Plaintiff’s argument is premised on her claim that “every expert who has ever

examined Plaintiff has opined that she requires significant support.” Doc. No. 10 at p. 7

(emphasis in original). However, this does not accurately describe the complex record

before the ALJ in this case. First, it is not accurate to claim that all of the examining

sources opined that Plaintiff required a provision in her RFC limiting her to a “supported”

work environment. Arguably James Petrick, Ph.D., did so, as he stated that Plaintiff was

substantially limited in her ability to maintain competitive employment and that she

likely required “a benevolent employer” and “necessary accommodations.” (R. 307-12).

In addition, Jessica Kettel, M.D., and Lindsey Rose, LCSW, both completed identical

checkbox forms that included a box indicating that Plaintiff’s maximum capacity would

be working part-time with the assistance of a job coach. (R. 834-35, 851-52). However,

consultative examining source Steven Pacella, Ph.D., while he did find that Plaintiff had

several marked limitations, did not opine specifically that she required a particular type of

supported work setting. (R. 295-303). Likewise, Christy Emmons, Psy.D., offered a

number of recommendations designed to benefit Plaintiff with learning, socialization, and

behavior, but did not opine that she was limited to working in a specially supported

environment. (R. 314-20). Dr. Emmons, in fact, stated that while Plaintiff would benefit

from job coaching, she “will be able to participate in gainful employment,” and noted that

the things that would help her be most successful were, not necessarily intensive

supervision, but rather a consistent work routine and the opportunity to rehearse work

skills. (R. 318). School psychologist Rachel Flinner, M.S., Ed., reviewed the records of

Drs. Petrick and Emmons in determining whether Plaintiff was eligible for services

available to individuals with autism spectrum disorder. (R. 827-30). She was not

opining as to Plaintiff’s ability to work and did not state that she requires a special

support system to perform gainful work.

It is far more accurate, then, to say that the record contains a number of opinions

that have relevance to Plaintiff’s functional capacity, including her possible need to work

in a supportive environment, which are not in strict agreement and which, in fact, all

differ in some way or another. Even those providers whose opinions did mention the

need for some kind of support or accommodation in the work environment did not

suggest any specific functional limitations, let alone the same functional limitations.

Indeed, Dr. Kettel and Ms. Rose, who filled out the same form, are not in compete

agreement as to Plaintiff’s functional capacity. Moreover, the fact that these evaluations

were conducted for different reasons requires them to be read in different contexts. Dr.

Pacella, for instance, was opining directly regarding Plaintiff’s functional limitations. Dr.

Petrick, on the other hand, did not purport to comprehensively opine as to Plaintiff’s

RFC. Dr. Emmons was not directly evaluating Plaintiff’s ability to work, but rather

assessing Plaintiff’s level of cognitive functioning and determining any potential deficits

that may impede learning, socialization, and behavior. (R. 314).

Further complicating things is the fact that there are, as the ALJ noted, additional

opinions in the record pertaining to Plaintiff’s ability to work. The state examining agent,

Sandra Banks, Ph.D., provided an opinion that Plaintiff had no more than moderate

limitations in her ability to perform sustained work activities, which the ALJ generally

incorporated into the RFC. (R. 63-73). In addition, medical expert Neli Cohen, Psy.D.,

who unlike any other opining sources had reviewed the entire record, testified that

Plaintiff was not as limited as some of her other medical providers had suggested. (R.

461-83). Neither suggested the need for specialized support at work. In short, the record

displays an intricate tapestry of opinions and evidence, each bringing a somewhat

different perspective to Plaintiff’s functional capacity.

In a situation such as this, it was incumbent upon the ALJ to consider all of the

evidence in determining the proper RFC. See Chandler v. Comm’r of Soc. Sec., 667 F.3d

356, 361 (3d Cir. 2011); Mays v. Barnhart, 78 Fed. Appx. 808, 813 (3d Cir. 2003); 20

C.F.R. §§ 416.945(a)(3); 416.946(c); S.S.R. 96-5p, 1996 WL 374183 (S.S.A.) (July 2,

1996). Certainly, in making this assessment, the opinions of the claimant’s treating

physicians generally are 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); 20

C.F.R. § 416.927(c)(2). However, while an ALJ must consider the treating relationship

between the claimant and an opining doctor, when the medical opinion of a treating

source conflicts with that of a non-treating, or even a non-examining physician, “the ALJ

may choose whom to credit.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). 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 S.S.R. 96-6p, 1996 WL 374180

(S.S.A.), at *2 (1996). The ALJ did so here, and her findings are supported by substantial

evidence.

As discussed, the treating and examining medical treatment providers were far

from unanimous in their evaluation of Plaintiff’s limitations. To the extent that the ALJ

found that any of their findings were not supported by the record, she discussed the basis

for her decision. She discussed each evaluation in significant detail and demonstrated a

complete understanding of each provider’s findings and/or opinions. She actually gave

some weight to several of the opinions at issue, including that of Dr. Petrick and that of

Dr. Pacella. (R. 447). The opinions to which she gave little or no weight were the

checkbox forms completed by Dr. Kettel and Ms. Rose. See Mason v. Shalala, 994 F.2d

1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is only to

check a box or fill in a blank are weak evidence at best.”). Indeed, this is not a case in

which the ALJ rejected the opinions of the claimant’s treating physicians; she simply

considered them in light of the evidence as a whole. For example, the ALJ considered

that, subsequent to most of these evaluations, Plaintiff had successfully worked, albeit on

a part-time basis, had started using public transportation, and had improved in her

interactions with others. (R. 446-47). She discussed and considered the objective

medical evidence at great length and evaluated the opinions in light of this evidence.

The ALJ further relied on the opinion of the state reviewing agent and the

testimony of Dr. Cohen. Not only was Dr. Cohen’s testimony far more recent than most

of the other opinions in the record, as the ALJ noted, Dr. Cohen was the only opining

source who had access to the entire record. (R. 447-48). Plaintiff here, as she did at the

hearing, argues that Dr. Cohen’s opinion is inconsistent with the other opinions.

However, in so asserting, Plaintiff is really arguing that Dr. Cohen’s testimony is

inconsistent with what she believes to be the meaning of the other opinions. Dr. Cohen

had access to these opinions and was capable of giving them her own reading, as was the

ALJ (and the Court). It is important to note that the ALJ did not disregard Plaintiff’s

restrictions in following instructions and dealing with others; she accounted for these

limitations. The RFC does not specify the need for any particular type of support system

but, as noted, neither really do the various opinions in the record. They suggest

limitations for which the ALJ accounted, just not in the way Plaintiff asserts the ALJ

should have done so.

All of this constitutes substantial evidence in support of the ALJ’s findings and as

to the formulation of Plaintiff’s RFC, especially in light of the United States Supreme

Court’s recent reminder that the threshold for meeting the substantial evidence standard

“is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Plaintiff essentially is

asking the Court to adopt her own analysis as to how the ALJ should have treated the

relevant medical opinions and analyzed the relevant evidence. However, 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). It is certainly not

unreasonable that Plaintiff would suggest interpretations of the various opinions that are

somewhat different than the way in which the ALJ interpreted them. However, “[t]he

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).

Moreover, as noted, reasonable minds could certainly differ to how much inconsistency,

if any, exists between and among the various reports.

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

Plaintiff has also noted the possible application of Lucia v. S.E.C., 138 S. Ct.

2044 (2018), and Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020). In Lucia,

the United States Supreme Court found an ALJ of the Securities and Exchange

Commission assigned to hear enforcement actions to be an “Officer of the United States,”

subject to the Appointments Clause of the United States Constitution. The Third Circuit

Court of Appeals, in Cirko, held that claimants can raise the challenge that ALJs of the

Social Security Administration (“SSA”) were not properly appointed under the

Appointments Clause without having exhausted those claims before the agency where the

ALJs had, in fact, not been properly appointed at the time of the claimant’s administrative

proceedings. However, the Acting Commissioner reappointed the SSA’s ALJs under her

own authority on July16, 2018. See S.S.R. 19-1p, 2019 WL 1324866 (S.S.A.), at *2

(2019). This case was not remanded back to the Commissioner by this Court until well

after that date, on September 26, 2018. (R. 522). Accordingly, ALJ Leslie Perry-

Dowdell was properly appointed during the entirety of the administrative adjudication of

this case after the Court had overturned her earlier decision. As such, even if the Court

were inclined to permit Plaintiff to raise an Appointments Clause argument at this late

stage of the proceedings, such a claim would be without merit.

Accordingly, for all of the reasons set forth herein, the Court finds that substantial

evidence supports the ALJ’s decision and therefore affirms.