FISK v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TREVOR SCOTT FISK, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-228-E

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

O R D E R

AND NOW, this 31st day of August, 2021, 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 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.1 See

42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (2019); Jesurum v. Secretary

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)). 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

1 Defendant asks the Court to tax costs against Plaintiff but does not advance an argument

in support of that request. Accordingly, the Court will award no costs. See Pa. Dep’t of Pub.

Welfare v. U.S. Dep’t of Health & Hum. Servs., 101 F.3d 939, 945 (3d Cir. 1996).

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

1981)).2

2 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in formulating his

residual functional capacity (“RFC”) because he failed to properly analyze the opinion of the

consultative examiner in light of the record evidence. The Court disagrees and finds instead that

substantial evidence supports the ALJ’s decision.

Plaintiff’s argument is primarily based on the opinion of consultative examiner Tammy

Connell, M.A., that he had several marked limitations, including as to his ability to respond

appropriately to normal work situations and to changes in a routine work setting. (R. 213-22).

While the ALJ found Ms. Connell’s opinion to be persuasive in most regards, he found her

opinion regarding Plaintiff’s ability to respond appropriately to normal work situations and to

changes in a routine work setting to be unpersuasive. (R. 23). In so finding, he explained that

this opinion was not consistent with the record as a whole because it was rendered during a

period that Plaintiff had stopped taking his medication and that he has demonstrated less serious

symptoms when he resumed his medication. He also cited several activities of daily living, such

as Plaintiff’s ability to take care of his personal hygiene and perform simple housework. (Id.).

Plaintiff suggests that the ALJ mischaracterized the record and/or “cherry-picked” evidence to

support the finding that he showed less serious symptoms when he was more compliant with his

medication. He also asserts that it was improper for the ALJ to consider his activities of daily

living. The Court finds no merit as to either argument.

First, the Court notes that Plaintiff’s argument suggests that the central issue in

determining his RFC was a determination as to whether to adopt the consultative examiner’s

opinion that he had marked limitations in his ability to respond appropriately to normal work

situations and to changes in a routine work setting. It is important to remember, though, that this

was just one part of the consultative examiner’s opinion; indeed, the ALJ largely adopted Ms.

Connell’s assessment. In addition, Ms. Connell’s opinion was merely one part of the record, was

not the opinion of a treating medical source, and was not the only opinion in the record. By no

means was the ALJ under an obligation to “disprove” the consultative opinion. Rather, he was to

consider it, along with the other record evidence, in formulating Plaintiff’s RFC and deciding

whether he was disabled. That is precisely what he did.

Contrary to Plaintiff’s contentions, the ALJ did not mischaracterize the objective medical

evidence or selectively consider only evidence that supported his evaluation of Ms. Connell’s

opinion. There is no dispute that Plaintiff had not been taking his psychotropic medication since

May of 2018 when he appeared for his assessment with Ms. Connell on August 9, 2018. (R.

226). In considering Ms. Connell’s opinion, which – again – he mostly adopted, the ALJ

appropriately noted that the assessment took place after an extended period of medical non-

compliance. The ALJ further noted that, after resuming his medication in the Fall of 2018,

Plaintiff’s mental status examinations were generally unremarkable, that he reported that his

racing thoughts had slowed down, that he denied any auditory hallucinations, that he had

reported his depression and anxiety as low, and that he had only reported having a “low mood”

once. (R. 23). He also noted the benefits Plaintiff had received from medication management.

(R. 22). The court finds this to be an accurate summary of Plaintiff’s medical records following

his resumption of his medication after his appointment with Ms. Connell.

Plaintiff, though, contends that this is, at best, a selective discussion of the evidence,

because it makes no mention of his consistently flat affect and the fact that he reported anger

issues, occasional racing thoughts, and occasional suicidal ideation. However, the ALJ did not

imply that the treatment records from September of 2018 going forward contained no evidence

of any mental health deficiencies; he merely declined to adopt one aspect of Ms. Connell’s

opinion because the medical records were “generally” unremarkable after he resumed his

medication. (R. 22, 23). The few comments and the findings that Plaintiff had a flat affect with

some congruence to his mood cited by Plaintiff do not really suggest a different interpretation of

these records. It is important to remember that an ALJ need not discuss every relevant treatment

note in the record, let alone every aspect of each note, as long as the reviewing court can

determine the basis for the decision. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001);

Tisoit v. Barnhart, 127 Fed. Appx. 572, 575 (3d Cir. 2005). Nothing here suggests that the ALJ

did not consider the relevant records in their entirety. See Rios v. Comm’r of Soc. Sec., 444 Fed.

Appx. 532, 535 (3d Cir. 2011) (remand not warranted where ALJ was not cherry-picking or

ignoring medical assessments that ran counter to her finding).

There was likewise nothing inappropriate in the ALJ considering Plaintiff’s activities of

daily living in evaluating the severity of Plaintiff’s symptoms and limitations. See 20 C.F.R. §

416.929(c)(3)(i); Wright v. Astrue, No. Civ. 10-942, 2011 WL 4079067, at *3 (W.D. Pa. Sept.

13, 2011). Again, the determination that the ALJ needed to make here was not whether Ms.

Connell was correct in her assessment of Plaintiff’s ability to respond appropriately to normal

work situations and to changes in a routine work setting. He needed to determine Plaintiff’s

RFC, and he was obligated to consider all of the evidence, including activities of daily living, in

making this finding.

It is important to again note that the ALJ did not rely solely on any one factor in

evaluating Ms. Connell’s opinion or in formulating the RFC. He considered the objective

medical records, as he was obliged to. He also considered activities of daily living, which was a

proper factor. Furthermore, the ALJ relied on the other medical opinion in the record, that of

state reviewing agent Jan Melcher, Ph.D. (R. 55-66), which he found to be persuasive. (R. 22-

23). As the Third Circuit Court of Appeals has made clear:

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.

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

Judgment (document No. 16) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 19) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

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

part). While an ALJ must consider the treating relationship between a 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). Here, the ALJ largely accounted for both opinions, and in doing so discussed the entirety

of the record. Moreover, his characterization of the record was fair and accurate and consistent

with the factors set forth at 20 C.F.R. § 416.920c(c).

Although Plaintiff suggests that the record could support a different result, “[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). The Court therefore finds that

substantial evidence supports the ALJ’s findings regarding Plaintiff’s RFC. Accordingly, the

Court will affirm.