UPTON v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEBRA LYNN UPTON, )

)

Plaintiff, )

)

vs. ) ) Civil No. 20-430

COMMISSIONER OF SOCIAL SECURITY, ) )

)

Defendant.

ORDER

AND NOW, this 28th day of April, 2021, upon consideration of the parties’ cross-motions

for summary judgment, the Court will grant Defendant’s motion. The Court has reviewed the

Commissioner of Social Security’s final decision denying Plaintiff’s application for disability

insurance benefits and supplemental security income, pursuant to Title II and Title XVI of the

Social Security Act, and finds the decision is supported by substantial evidence. See 42 U.S.C.

§ 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153—54 (2019); Jesurum v. Sec’y of U.S. Dep’t

of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d

1211, 1213 (3d Cir.1988)); Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (“The court

may neither reweigh the evidence, nor may we reverse the Secretary merely because we would

have decided the claim differently.”) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981)).1

1 Plaintiff argues the Administrative Law Judge’s (“ALJ”) decision is not supported by

substantial evidence because the ALJ (1) inadequately justified her decision to afford the medical

opinion evidence only partial weight, (2) failed to develop the record when she strictly enforced

the five-day rule for admission of evidence, and (3) ignored Plaintiff’s work history which ought

to have demonstrated Plaintiff’s credibility and strengthened her claim. The Court finds no such

shortcomings. The underlying decision is supported by substantial evidence, and Defendant’s

summary judgment motion shall be granted.

Plaintiff first argues the ALJ afforded Dr. Van Tran’s medical opinion only partial weight

without connecting that finding to the evidence with a “logical bridge.” (Doc. No. 14, pg. 10)

(citing Gamret v. Colvin, 994 F. Supp. 2d 695, 698 (W.D. Pa. 2014)). In formulating a

claimant’s residual functional capacity (RFC), ALJs consider “all relevant evidence.” Fargnoli

v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001). They must explain their consideration of the

evidence in enough detail to permit review. See id. at 41—42. Where conflicts in and among

evidence arise, ALJs may “accept some” and “reject other evidence,” so long as they “provide[]

an explanation for discrediting the rejected evidence.” Zirnsak v. Colvin, 777 F.3d 607, 614 (3d

Cir. 2014); Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000).

ALJs are not medical experts. See Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990)

(“[J]udges, including administrative law judges of the Social Security Administration, must be

careful not to succumb to the temptation to play doctor.”). Therefore, opinion evidence provided

by medical experts is recognized as particularly important in disability determinations. See 20

C.F.R. §§ 404.1527(c), 416.927(c) (“[W]e will evaluate every medical opinion we receive.”).

However, it is ultimately “[t]he ALJ—not treating or examining physicians or State agency

consultants” who fixes a claimant’s RFC and determines disability status. Chandler v. Comm’r

of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). An ALJ may therefore afford medical opinion

evidence little or no weight, and a reviewing court will not upset that determination where it is

supported by substantial evidence. Zirnsak, 777 F.3d at 614. Put differently, so long as the

ALJ’s reason for affording medical opinion evidence a particular weight is supported by “such

relevant evidence as a reasonable mind might accept as adequate to support [that] conclusion,”

the Court will not “substitute [its] own judgment” for that of the ALJ. Id. at 610—11.

Dr. Van Tran’s September 20, 2016 Disability Determination Explanation(s) appear in

the record at R. 220—39 (Ex. 1A, 2A). Dr. Van Tran considered Plaintiff’s medical condition

and limitations as a State agency consultative physician. At that time, Dr. Van Tran had the

opportunity to consider medical records he received up until September 2016. (R. 221—23).

Dr. Van Tran noted the results of Plaintiff’s October 2015 lumbar MRI, the stroke she suffered in

March 2016, her neuropathy, and her post-stroke recovery as of April and August 2016. (R.

223—24). Considering Plaintiff’s medical history, Dr. Van Tran determined Plaintiff’s medical

impairments were at least partially consistent with her symptoms, and further determined

Plaintiff would be able to stand and walk only two hours in an eight-hour workday. (R. 225).

The ALJ considered Dr. Van Tran’s assessment and afforded it “partial weight.” (R. 37). The

ALJ explained that she would afford it only partial weight because Dr. Van Tran’s opinion was

formed just six months after Plaintiff suffered a stroke (R. 37), thus a significant amount of

evidence in the record post-dated Dr. Van Tran’s opinion. Looking at the evidence in the record

that had amassed since September 2016, the ALJ found Dr. Van Tran’s proposed limitations

“somewhat excessive” (R. 37), and opted for a four-hour stand-and-walk limitation instead of Dr.

Van Tran’s two-hour limitation. (R. 31).

Plaintiff argues the reasons the ALJ gave for “rejecting” Dr. Van Tran’s opinion are

“factually inaccurate and/or contrary to law,” and explains that while much of the evidence in the

record post-dates Dr. Van Tran’s opinion, that later evidence vindicates Dr. Van Tran’s proposed

limitations. (Doc. No. 14, pgs. 5—6, 10). Plaintiff points to instances in her medical records

between November 2016 and August 2018 where she complained to her physicians about

“freez[ing] up,” knee pain, back pain, hip pain, numb and tingly feet, headaches,

lightheadedness, “shot” fine motor skills, and feeling off-balance. (Doc. No. 14, pgs. 8—10)

(citing R. 618—19, 638, 641, 666, 708—10, 732—34, 744—49). She also points out her

physicians’ findings during that time, which included ongoing difficulties with balance (R. 734,

Ex. 8F, Dr. Starr—October 2016); worsening back, hip, and knee pain over a six-year period (R.

747, Ex. 9F, Dr. Gallagher—December 2016); an “ok” gait (R. 619, Ex. 7F, Dr. Brizuela—

January 2017); implantation of a loop monitor, leg pain, and a slow and antalgic gait (R. 709—

10, Ex. 8F, Dr. Starr—April 2017); hypertension, diabetes Type II, morbid obesity, and stroke

syndrome (R. 641, Ex. 8F, Dr. Cole—November 2017); and chronic back pain, lumbar spinal

stenosis, osteoarthritis, and left-knee pain (R. 752—53, Ex. 9F, Pain and Spine Specialists of

Pennsylvania—August 2018). Plaintiff urges the Court to consider that these medical records

bear out Dr. Van Tran’s September 2016 opinion. However, the Court’s role is not to weigh the

objective medical evidence against Dr. Van Tran’s opinion, but to ensure the ALJ weighed all of

the evidence and arrived at conclusions supported by substantial evidence.

The Court finds the ALJ did just that. Her decision demonstrates she considered Dr.

Brizuela’s January 2017 findings, including that Plaintiff’s gait was “ok,” but further that

Plaintiff’s strength was five out of five. (R. 35). The ALJ considered Dr. Starr’s April 2017

notations concerning Plaintiff’s loop monitor and pain, but also Dr. Starr’s finding that Plaintiff’s

strength was five of five and that she lacked any new stroke symptoms. (R. 34). She further

considered Dr. Starr’s findings that Plaintiff’s tone in her upper and lower extremities,

movement, and coordination were all normal. (R. 36) (mistakenly referring to Dr. Cole when

recounting Dr. Starr’s findings as they appear at Ex. 8F/80). The ALJ also reviewed Plaintiff’s

August 2018 treatment at the Pain and Spine Specialists of Pennsylvania and notes concerning

Plaintiff’s chronic pain, lumbar spinal stenosis, and osteoarthritis. (R. 36). Based on the

evidence in the record, the ALJ determined Plaintiff did not have “debilitating limitations,” and

found her “degenerative disease and . . . pain” could be accommodated by limiting her work to a

“light exertional level with an additional limitation regarding walking/standing,” i.e., a four-hour

limit. (R. 36). The ALJ’s thorough review of the evidence supports her determination that

Plaintiff would be capable of standing and walking for four working hours. Considering the

ALJ’s explanation of her consideration of the evidence, the Court finds that her decision to

afford Dr. Van Tran’s opinion only partial weight is well-supported and reasonable. The ALJ’s

explanation for that finding—that Dr. Van Tran’s opinion was not informed by later medical

records—proceeds coherently from the evidence. The ALJ clearly interpreted the evidence to

indicate Plaintiff’s condition had improved since Dr. Van Tran evaluated Plaintiff in September

2016, and substantial evidence supports that finding. Therefore, the Court will leave the ALJ’s

determination of the weight afforded Dr. Van Tran’s opinion undisturbed. Cf. Simmonds v.

Heckler, 807 F.2d 54, 58 (3d Cir. 1986) (“[O]ur inquiry is not whether the ALJ could have

reasonably made a different finding based on this record.”); Malloy v. Comm’r of Soc. Sec., 306

F. App’x 761, 764 (3d Cir. 2009).

Plaintiff’s second argument is that the ALJ ought to have permitted admission of

untimely evidence because it was relevant and probative. She argues the ALJ’s refusal to relax

the time for filing constituted a dereliction of the ALJ’s duty to develop the record. (Doc. No.

14, pgs. 11—17). ALJs are tasked with ensuring development of the record. Ventura v. Shalala,

55 F.3d 900, 902 (3d Cir. 1995) (“ALJs have a duty to develop a full and fair record in social

security cases.”). Owing to that unique responsibility, ALJs may receive evidence that would be

“inadmissible under rules of evidence applicable to court procedure.” Richardson v. Perales,

402 U.S. 389, 400 (1971) (citing 42 U.S.C. § 405(b)). The relaxed standard reflects the

emphasis on fairness over formality in social security proceedings. Id. However, in eschewing

formality, ALJs are not obligated to permit a free-for-all. The Commissioner is empowered to

“make rules and regulations and to establish procedures” to facilitate disability determinations.

42 U.S.C. § 405(a). The five-day rule reflects the balance the Commissioner has struck between

ALJs’ duty to develop the record and the necessity of having a system that works. Cf.

Richardson, 402 U.S. at 399. According to the rule, claimants must ensure their evidence is

received by the ALJ five days before a hearing. 20 C.F.R. §§ 404.935(a), 416.1435(a).

Evidence the ALJ receives less than five days before a hearing may be excluded. Id. The

consequences of the rule are tempered by its exceptions, provided in subsection (b), which

excuse failure to timely file for, among other things, an “unusual, unexpected, or unavoidable

circumstance beyond [the claimant’s] control.” 20 C.F.R. §§ 404.935(b)(3), 416.1435(b)(3).

The rule and its exceptions thus ensure disability determinations are informed by a wealth of

evidence while also proceeding efficiently. Ensuring Program Uniformity at the Hearing and

Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-01 (“[T]he 5-

day requirement promotes the efficiency of our hearings process and allows it to work more

effectively by ensuring that ALJs have a more complete evidentiary record when they hold

hearings.”).

In this matter, Plaintiff sought to have several medical records admitted late. (R. 172,

217). Those records included MRI results, materials from the Pain and Spine Specialists of

Pennsylvania, and evaluations from Kreinbrook Psychological Services. (R. 172—74).

Discussing those records, Plaintiff’s counsel conceded their untimeliness. (R. 172) (“ATTY:

Your Honor, normally, I get them in way ahead of time, as you know. But this time, I didn’t,

and it was my fault.”). The ALJ then discussed with Plaintiff’s counsel the opportunity to argue

for an exception:

ALJ: There was plenty of time to be able to get those -- that

information into the record. But like I said, I will reconsider

it if you can provide me with some kind of information

showing that those were actually faxed into the record within

the time requirements under the regulations.

ATTY: Okay.

ALJ: All right? Otherwise, I’m denying admission of these late

records, because as of right now, we have not established

that any of the B criteria are met. Specifically, there was no

unusual, unexpected, or unavoidable circumstances beyond

your control which prevented informing me about, or

submitting the records earlier. . . . I will give you until the

19th --

ATTY: Okay.

ALJ: -- 19 September to provide me with evidence that those

records were submitted in a timely manner. If you cannot

provide me with evidence that the records were submitted in

within [sic] a timely manner, then I will deny admission of

the records, as there was ample time between the time that

the service was done and today to get those records into the

case file. And the reason that we want timely submission of

evidence is so that we have the -- so that I have the ability to

thoroughly review the record prior to coming here in a

hearing.

(R. 174—75). Though the ALJ refused to admit the untimely evidence, she encouraged

Plaintiff’s counsel to develop the record related to that evidence at the hearing. (R. 176) (“ALJ:

Okay. And you can, of course, Counsel, certainly ask the Claimant questions about the records

that I have denied admission to.”). At the end of the hearing, the ALJ again discussed with

Plaintiff the opportunity to request an exception to the five-day rule when she reminded Plaintiff

that she “would consider that if you did fax [the untimely records] in on the day that you said,

within the time frame required, that would be an uncontrollable circumstance. But short of

evidence that they were actually faxed in, I don’t see the -- but I’ll give you the opportunity to

prove the B criteria.” (R. 218). Despite these two exception colloquies, the ALJ observed in her

decision that “[a]s of September 26, 2018, the representative had not submitted any information

that would support his assertion that the records (or an attempt to submit the records) were

submitted in a timely manner.” (R. 26). In the absence of any argument concerning an

exception to the five-day rule, the ALJ did not reconsider her decision to exclude the untimely

records. Instead, she considered the “information contained in those records” to the extent

Plaintiff had covered that information in her testimony. (R. 26).

Where, as here, the ALJ excluded untimely evidence and provided every opportunity for

Plaintiff to argue an exception excusing the lateness of her filing, the Court finds no abuse of

discretion in excluding the late-filed materials. The Court is unpersuaded by Plaintiff’s argument

that the five-day rule must give way whenever late evidence is “relevant and probative,” as long

as the claimant has not been “dilatory or obstructive.” (Doc. No. 14, pg. 13). The broad

exception suggested by Plaintiff is unnecessary to ensure the five-day rule retains flexibility—the

rule is already subject to generous exceptions. In this instance, Plaintiff simply failed to argue

for one.

Further, the Court does not agree with Plaintiff that the ALJ failed to adequately develop

the record, not even where psychological records reflecting “developing cognitive impairments”

were among the excluded records. (Doc. No. 14, pg. 15). Plaintiff argues that because these

records indicated a mental impairment, the ALJ was required to take evidence of that

impairment. Otherwise, Plaintiff argues, the ALJ’s RFC determination was inaccurate and

unsupported by substantial evidence. (Doc. No. 14, pg. 16). However, an ALJ need not develop

the record superfluously, that is, she need not fill a gap in evidence where there is none. See

Morrill v. Saul, No. 19-CV-6279F, 2020 WL 5107567, at *6 (W.D.N.Y. Aug. 31, 2020) (“[T]he

ALJ is not required to further develop the record in the absence of a gap in the record[.]”).

Further, an ALJ’s duty to develop the record is at its height when she is considering the case of

an unrepresented claimant. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)

(discussing “the responsibility of the ALJ to assume a more active role when the claimant is

unrepresented”). In this matter, Plaintiff was represented by counsel, and, though the ALJ

excluded some evidence concerning Plaintiff’s mental function, she considered other evidence

pertaining thereto. The ALJ considered Plaintiff’s concern that her memory had been affected

by her stroke, but also her physicians’ normal mental status findings (R. 526—27, 601, 709) in

formulating Plaintiff’s RFC. (R. 32—34). With the benefit of that evidence, the ALJ ultimately

determined that Plaintiff suffered no “lasting debilitating limitations” from her stroke, and

otherwise “accommodated any residuals from [her] strokes by reducing her to the light exertional

level” with additional limitations. (R. 34). Where, as here, mental status evidence was in the

record for the ALJ’s consideration, the ALJ was not obligated to further develop the record in

that regard before arriving at her conclusion. The Court therefore finds no failure to adequately

develop the record.

Plaintiff’s third and final argument is that, in addition to failing to correctly consider the

opinion and other evidence, the ALJ failed to specifically consider her “exemplary work

history.” (Doc. No. 14, pg. 18). She argues the ALJ was required to consider her “demonstrated

willingness to work” and that she was harmed by the ALJ’s failure to do so because her work

history bolsters her credibility. (Doc. No. 14, pgs. 18—19) (citing, inter alia, 20 C.F.R.

§ 404.1529(c)(3) (“We will consider all of the evidence presented, including information about

your prior work record, your statements about your symptoms, evidence submitted by your

medical sources, and observations by our employees and other persons.”)). ALJs must consider

all relevant evidence in the record. Fargnoli, 247 F.3d at 41. All evidence of course includes a

claimant’s testimony concerning her symptoms and limitations. That testimony may be rejected,

but not without reason. Baerga v. Richardson, 500 F.2d 309, 312 (3rd Cir. 1974). ALJs’

consideration of claimants’ testimony is often referred to as a “credibility” determination, though

that term has been eliminated from the Commissioner’s policy concerning “subjective symptom

evaluation.” Schneider v. Berryhill, No. CV 17-1299, 2019 WL 698471, at *2 (W.D. Pa. Feb.

20, 2019) (citing SSR 16-3p) (explaining SSR 16-3p “clarif[ied] that the subjective symptom

evaluation is not an examination of an individual’s character”). Work history is evidence ALJs

consider as part of the inquiry into whether a claimant’s subjective symptoms are supported by

other evidence in the record. A substantial work history tends to support a claimant’s “testimony

about his work capabilities.” Rinier v. Berryhill, No. CV 17-125, 2018 WL 3574941, at *4

(W.D. Pa. July 25, 2018) (citing Schreibeis v. Comm’r. of Soc. Sec., Civ. No. 10-1025, 2012 WL

11101, * 1 n. 1 (W.D. Pa. Jan. 3, 2012)). Where the record contains “evidence of severe

impairments or attempt[s] to return to work,” it is especially important that the ALJ attend to a

claimant’s “long and productive work history.” Corley v. Barnhart, 102 F. App’x 752, 755 (3d

Cir. 2004). See Dobrowolsky, 606 F.2d at 409. However, in the usual course, the ALJ

adequately addresses a claimant’s work history where the ALJ hears testimony concerning a

claimant’s past work, correctly determines quarters of coverage, and accurately describes the

past work. Rinier, 2018 WL 3574941, at *5 (finding the ALJ “clearly was aware of” claimant’s

work where the ALJ calculated quarters of coverage, discussed whether claimant could perform

past relevant work, referenced claimant’s past jobs, and heard claimant’s testimony concerning

past work); Schwartz v. Berryhill, No. CV 17-854, 2018 WL 3575046, at *8 (W.D. Pa. July 25,

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

(Doc. No. 13) is DENIED and Defendant’s Motion for Summary Judgment (Doc. No. 15) is

GRANTED.

/s Alan N. Bloch

United States District Judge

ecf: Counsel of Record

2018); Templon v. Berryhill, No. CV 17-84-J, 2018 WL 4219366, at *1 n.1 (W.D. Pa. Sept. 5,

2018).

In this matter, the ALJ heard Plaintiff’s testimony concerning her work history (R. 186—

90), indicated her insured status would continue through December 31, 2020 (R. 28), and

described Plaintiff’s past relevant work as a nurse’s aide (R. 37). This Court has repeatedly

found consideration of work history to that extent satisfactory. Rinier, 2018 WL 3574941, at *5;

Templon, 2018 WL 4219366, at *1 n.1. Thus, remand for further consideration of Plaintiff’s

work history is unnecessary. For that reason and the foregoing reasons, the Court finds the ALJ

neither neglected evidence nor abused her discretion, and further finds the underlying decision is

supported by substantial evidence. Accordingly, the Court grants Defendant’s Motion for

Summary Judgment.