Gurina v. Berryhill
Gurina v. Berryhill
Opinion of the Court
Plaintiff Victoria Gurina appeals herein the decision of the Commissioner of Social Security denying her claim for supplemental security income ("SSI") under Title XVI of the Social Security Act. Plaintiff seeks reversal of the Commissioner's decision, arguing that the Administrative Law Judge's ("ALJ") finding that she is not disabled was not based on substantial evidence. The Commissioner argues that the ALJ's determination was supported by substantial evidence and should therefore be upheld.
The Court referred the case to United States Magistrate Judge Elizabeth T. Hey, who has issued a Report and Recommendation ("R & R") that the Commissioner's decision to deny benefits be affirmed. Plaintiff has filed objections to the R & R, to which the Commissioner has responded. Upon this Court's careful, independent consideration of the administrative record, the parties' submissions, and the applicable law, the Court will remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The R & R presents an exhaustive review of the procedural history, factual background, evidence, and the most recent ALJ decision. Plaintiff makes no objection to this portion of the R & R, and the Court hereby adopts and incorporates parts I-III of the R & R.
Plaintiff filed an application for SSI on March 27, 2013, alleging a disability onset date of January 26, 2013. Plaintiff is a 49-year-old woman with a twelfth-grade education and no relevant work history. Plaintiff alleged that she was disabled as a result of depression, headaches, high blood pressure, thyroid issues, and fibromyalgia.
After Plaintiff's original application from 2013 was denied, an administrative hearing was held on November 19, 2014 by an ALJ who determined that Plaintiff was not disabled for purposes of receiving SSI. At the hearing, Plaintiff testified that she cannot work because it is difficult for her to communicate with others, she does not go outside by herself, and she suffers from crying spells and anxiety attacks.
[S]imple, routine, repetitive work with no assembly lines or mandated teams; no public contact; as self-paced as possible, with no hourly quotas, such that the rate of work can vary or even briefly stop, but all assigned work must be completed by the end of the work shift or workday.3
*528When asked what type of work a hypothetical person with the limitations outlined in the RFC could perform, the vocational expert ("VE") named the jobs of table assembler, hand stuffer, and product bagger.
The Appeals Council denied Plaintiff's request for review on May 18, 2016, and Plaintiff then filed an action in this Court. Of Plaintiff's many arguments concerning whether the ALJ's decision was supported by substantial evidence, Plaintiff now limits her objections to the R & R as follows: (1) The R & R improperly found that Dr. Bronstein's opinions were either adequately incorporated into the RFC or properly rejected by the ALJ, and (2) the R & R improperly found that Dr. Langberg's opinions were either assigned sufficient weight, or properly rejected, by the ALJ.
II. STANDARD OF REVIEW
The Social Security Act provides for judicial review by a district court of any "final decision of the Commissioner of Social Security" in a disability proceeding.
"Substantial evidence" refers to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Finally, in considering whether to approve the R & R of a magistrate judge, a district court must review de novo those portions of the R & R to which a party has objected.
III. SOCIAL SECURITY LAW
An ALJ reviewing an application for disability benefits must employ a five-step process as established by the SSA.
IV. DISCUSSION
Plaintiff argues that the ALJ's decision at step five-that Plaintiff could perform work existing in significant numbers in the national economy-was not supported by substantial evidence. Plaintiff objects to the R & R's decision as to Dr. Bronstein, arguing that the R & R employed flawed reasoning, as well as reasoning not used by the ALJ, to justify the failure to incorporate the limitations into the RFC and hypothetical. As to Dr. Langberg's opinion, Plaintiff argues that the R & R did not address the ALJ's lack of explanation as to the weight assigned to the moderate and marked limitations described by Dr. Langberg, and the R & R improperly found no error in the ALJ's decision to reject Dr. Langberg's assessment of marked limitations in responding appropriately to usual work situations and changes in routine work setting.
A. Dr. Bronstein's Opinion
Dr. Bronstein was Plaintiff's treating psychiatrist. He provided treatment notes from eleven appointments with Plaintiff, which occurred between November of 2013 and December of 2014.
*530
Plaintiff argues that the ALJ did not sufficiently consider the following limitations that Dr. Bronstein assigned to Plaintiff in his Medical Source Statement: a "poor or no" ability to work in proximity to others, and a "fair" or "seriously limited"
Because the ALJ explicitly credited this limitation, but did not incorporate it into the RFC and hypothetical, the Court sustains Plaintiff's objection as to Dr. Bronstein's opinion that Plaintiff has a "fair" or "seriously limited" ability to maintain regular attendance. The Court overrules Plaintiff's objections to the ALJ's treatment of the other limitations described by Dr. Bronstein, including Plaintiff's ability to work in proximity to others, ability to make simple work-related decisions, and ability to deal with normal work stress.
The ALJ's failure to provide reasons for not incorporating Plaintiff's alleged limitation in maintaining regular attendance *531into the RFC and hypothetical requires remand. An ALJ may choose to reject evidence that is medically supported but also contradicted by other evidence.
In this case, the ALJ credited Dr. Bronstein's opinion that Plaintiff is seriously limited in her ability to maintain regular attendance. The ALJ included this limitation in the list of limitations to which she attributed "significant weight" and that she "incorporated into the functional assessment."
The ALJ did note that Dr. Bronstein indicated that he could not estimate the frequency of Plaintiff's possible absences from work.
Despite crediting Plaintiff's limitation in maintaining regular attendance and being punctual within customary, usually strict tolerances, the ALJ did not incorporate it into the RFC or resulting hypothetical.
The Court sustains the objections to the R & R to the extent it employed reasoning not found in the ALJ's decision to justify the ALJ's choice not to address Plaintiff's limitation in maintaining attendance. The R & R determined that the ALJ decided not to credit Dr. Bronstein's opinion as to this limitation, reasoning that it is related to the "severe limitations in concentration and memory" that the ALJ explicitly discredited. In support of this determination, the R & R provided that Dr. Bronstein stated, "chronic concentration difficulties ... may influence" the other limitations in Dr. Bronstein's report that are the subject of Plaintiff's motion.
The Third Circuit has made clear that a court reviewing an administrative decision is "not permitted to weigh the evidence or substitute [its] own conclusions for that of the fact-finder."
Additionally, the R & R's reasoning is flawed. Dr. Bronstein's notes only mentioned that "chronic concentration difficulties may affect" the other limitations Plaintiff experiences.
"Substantial gainful activity means performance of substantial services with reasonable regularity."
B. Dr. Langberg's Opinion
Dr. Langberg conducted a consultative examination on June 11, 2013.
The Court agrees with the R & R that the ALJ properly explained the weight given to Dr. Langberg's opinion. Where evidence conflicts, the ALJ may choose which evidence to credit so long as she does not "reject evidence for no reason or for the wrong reason."
V. CONCLUSION
For the foregoing reasons, this Court sustains Plaintiff's objection to the R & R in part, finding that the ALJ failed to incorporate Dr. Bronstein's opinion that Plaintiff has serious limitations in maintaining regular attendance into the RFC and hypothetical posed to the VE. The Court overrules Plaintiff's objections to the ALJ's treatment of the remainder of Dr. *535Bronstein's opinions. The Court also overrules Plaintiff's objections to the ALJ's treatment of Dr. Langberg's opinion. The Court grants Plaintiff's request for review, and remands for further consideration pursuant to
R. 80, 84-85.
Dr. Bronstein is Plaintiff's treating psychiatrist, and Dr. Langberg is the psychologist who performed the consultative examination.
R. 63.
R. 87-88.
Plaintiff also stated, in a third argument, that the ALJ failed to include all of Plaintiff's credibly established limitations in her RFC and hypothetical question to the VE. This argument is derivative of the others and will be addressed together with the first two.
Schaudeck v. Comm'r of Social Sec. Admin. ,
Richardson v. Perales ,
Brown v. Bowen ,
Fargnoli v. Massanari ,
Schaudeck ,
See
R. 385-94, 433-34.
R. 428.
R. 423-26
R. 423.
R. 428-29.
According to Dr. Bronstein's report, "fair" means a "seriously limited" ability to function. R. 429-430.
Pl.'s Obj. to R. & R. [Doc. No. 17] at 3.
As to these three limitations, this Court reaches the same conclusion as the R & R but for different reasons. The RFC and hypothetical sufficiently addressed Plaintiff's limitations in these areas. The RFC and hypothetical addressed Plaintiff's "fair" ability to make simple work-related decisions and deal with normal work stress by limiting Plaintiff to "simple, routine, and repetitive work." R. 63. The RFC and hypothetical addressed her difficulties dealing with normal work stress by limiting her to jobs that are "as self-paced as possible, with no hourly quotas, such that the rate of work can vary or even briefly stop." R. 63.
The RFC and hypothetical addressed Plaintiff's limitations in working in proximity to others by limiting Plaintiff to work with "no assembly lines or mandated teams; no public contact" and work that is "as self-paced as possible." R. 63. There is substantial evidence in the record to support the ALJ's determination that Plaintiff could perform such work. Notably, the jobs that the VE suggested as a result of the RFC were, as the R & R notes, limited to those with "the lowest level of interaction with people that is necessary for jobs listed in the [Dictionary of Occupational Title]." R & R. 20 (citing Hann v. Colvin , 12-6234,
Rutherford v. Barnhart ,
Rutherford ,
R. 64.
In her report, the ALJ listed Dr. Bronstein's opinion as to Plaintiff's limitations, including her limitation in her ability to maintain regular attendance. The ALJ then stated:
While significant weight was accorded to this assessment, and the identified limitations incorporated into the functional assessment set forth above, the severe limitations regarding claimant's memory and concentration have not been accepted as they are not supported by the record as a whole, particularly upon review of Dr. Brownstein's contemporaneous treatment notes.
R. 64.
R. 64.
R. 64.
See R. 63.
See R. 86-92.
See R. 87-88.
"Where a credibly established limitation is omitted from an administrative law judge's hypothetical question to a vocational expert, there is a danger that the vocational expert will identify jobs requiring the performance of tasks that would be precluded by the omitted limitation." Hux v. Astrue , 11-1306,
R & R at 16 (quoting R. 430).
Burns v. Barnhart ,
Cortes v. Comm'r of Soc. Sec. , 255 Fed. App'x 646, 655 n.6 (3d Cir. 2007) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (citing SEC v. Chenery Corp.,
R. 64.
R. 64. Notably, each of the limitations noted by Dr. Bronstein that the ALJ stated she "incorporated into the functional assessment" was a limitation that, according to Dr. Bronstein's notes, could be affected by concentration issues. Had the ALJ decided to discount every limitation influenced by issues of concentration, as the R & R suggests, there would have been no limitations identified by Dr. Bronstein to "incorporate[ ] into the functional assessment." R. 64.
R. 430 (emphasis added).
R. 64.
See R. 430.
Kangas v. Bowen ,
See e.g., Ramirez v. Barnhart ,
R. 279-87.
R. 286.
Pl.'s Br. in Supp. of Req. for Judicial Review [Doc. No. 11] at 14-17.
Rutherford ,
Hernandez v. Comm'r of Social Sec. , 89 Fed. App'x 771, 773-74 (3d Cir. 2004) ; See also Hur v. Barnhart , 94 Fed. App'x 130, 133 (3d Cir. 2004) ("There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record").
The ALJ addressed Plaintiff's "marked" limitations in carrying out complex instructions by limiting her to simple, routine, and repetitive work. The ALJ addressed Plaintiff's "moderate" limitations in her inability to interact appropriately with the public, supervisors, and co-workers by limiting her to work with no assembly lines, no public contact, and work that is as self-paced as possible. See R. 63, 292. Although the ALJ did not include the specific language from Dr. Langberg's opinion that Plaintiff has difficulty sustaining work or worklike-related activities due to anxiety and depression, the ALJ sufficiently addressed this limitation. The language of this particular limitation is fairly broad, and the ALJ addressed and accounted for the specific issues identified by Dr. Langberg that contribute to her difficulty sustaining work-related activities including decision making, carrying out complex instructions, and making judgments on work-related activities. R. 287, 290.
As noted in the R & R, substantial evidence supports the ALJ's decision to reject Dr. Langberg's opinion that Plaintiff has marked limitations responding appropriately to usual work situations and to changes in routine work settings. R & R at 23. The ALJ explained that Dr. Langberg only examined Plaintiff once and his narrative report does not support the identified marked limitations. Plaintiff correctly points out that Dr. Langberg's report lends some support to his opinion regarding this alleged limitation. Dr. Langberg found that Plaintiff had mild psychomotor retardation, dysphoric mood, sad and forlorn affect, inability to think abstractly, and difficulty in performing serial threes. R. 283-85. However, Dr. Langberg's narrative also noted that she was appropriately dressed and groomed, did not evidence obvious shifts in anxiety during the interview, was fully cooperative and pleasant, demonstrated a "good" level of insight, and her impulse control was intact. R. 283-85. Dr. Langberg's narrative report does not specifically mention Plaintiff's ability to respond to work situations and changes in routine. See R. 283-85. Moreover, Dr. Gavazzi, who reviewed Dr. Langberg's report, stated that Plaintiff had only "moderate" limitations responding to changes in the work setting. R. 129. The ALJ's decision resolving this conflict created by countervailing evidence was supported by substantial evidence in the record.
Reference
- Full Case Name
- Victoria GURINA v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 2 cases
- Status
- Published