Torres v. Comm Social Security , 139 F. App'x 411 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-14-2005
Torres v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3542
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3542
ORLANDO TORRES,
Appellant
v.
JO ANNE B. BARNHART,
SOCIAL SECURITY ADMINISTRATION
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-05798)
District Judge: Hon. Lowell A. Reed, Jr.
Submitted Under Third Circuit LAR 34.1(a)
June 3, 2005
BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges
(Filed: July 14, 2005)
OPINION
COWEN, Circuit Judge.
Orlando Torres (“Claimant”) appeals from an order of the District Court affirming
a decision by the Commissioner of Social Security (“Commissioner”) denying his
application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f. Claimant alleged that he had been disabled since
January 8, 2002 because of arthritis, anxiety, depression, sleeping difficulties, hearing
voices, and high blood pressure. We have jurisdiction under 28 U.S.C. § 1291, and for
the following reasons, will affirm. Because we write solely for the parties, we only set
forth the relevant facts in connection with our discussion.
I.
Claimant contends that the Administrative Law Judge (“ALJ”) committed several
errors in adjudicating his case, including: (1) denying his request to subpoena his treating
psychiatrist, Dr. Roger Erro, to respond to interrogatories; (2) failing to enable the
consultative mental examiner, Dr. Loren Laviolette, to review the entirety of the
evidentiary file; (3) relying on a non-examining state agency check-list form as
substantial evidence in evaluating the severity of his mental condition; and (4) relying on
the reports of the consultative physical examiner, Dr. Horacio Buschiazzo, who was not
furnished with available test results despite indicating that such results would have been
helpful in his diagnosis. We address each of these contentions in turn.
II.
Our standard of review in this case is whether there is substantial evidence in the
record to support the Commissioner’s decision. See Brown v. Bowen, 845 F.2d 1211,
1212 (3d Cir. 1988).
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III.
First, Claimant asserts that the ALJ flouted her duty to develop the record by
refusing his request to subpoena Dr. Erro to clarify apparent inconsistencies that she
purportedly acknowledged were contained within his psychotherapy treatment notes.1
Claimant, however, misrepresents the ALJ’s position. The ALJ did not express concern
with ambiguities in the psychotherapy treatment notes or indicate a need or desire to
further supplement the record. Rather, the ALJ perceived numerous inconsistencies
between the documentary record and Claimant’s testimony at the administrative hearing,
and sought to address her credibility concerns through questioning Claimant. Contrary to
Claimant’s charge, the ALJ’s remarks were not illustrative of confusion about the state
and development of the record. Indeed, the ALJ expressed several times her confidence
with the accuracy, clarity, and completeness of the record before her. Claimant cannot
saddle the ALJ with his own perspective regarding the internal cohesiveness of the
treatment notes and then accuse her of failing to develop the record by declining to issue a
subpoena. See 20 C.F.R. § 416.1450(d) (“When it is reasonably necessary for the full
presentation of a case, an administrative law judge . . . may . . . issue subpoenas for the
appearance and testimony of witnesses and for the production of . . . documents that are
material to an issue at the hearing.”). The ALJ correctly determined that a subpoena was
1
Claimant requested that the ALJ subpoena Dr. Erro to have him complete an
assessment form. According to Claimant, Dr. Erro had instituted a practice within the
preceding year of no longer completing such forms for any of his patients.
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not necessary for full presentation of Claimant’s case, and accordingly did not abuse her
discretion in not granting Claimant’s request to subpoena Dr. Erro to complete an
assessment form.
Related to this argument is Claimant’s contention that the ALJ inappropriately
evaluated the mental treating sources by employing her “lay” interpretation of the
psychotherapy treatment notes. This assertion lacks merit. The ALJ reviewed and
analyzed the treatment notes of Dr. Erro and therapist Rafael Sosa as a whole, and in
combination with other evidence of record including Claimant’s own testimony,
determined that they showed remarkable improvement in Claimant’s psychiatric condition
and that his condition was not disabling. These conclusions are supported by substantial
evidence. It cannot be disputed that Dr. Erro’s and Mr. Sosa’s respective examinations
and treatment notes document a marked and dramatic improvement in Claimant’s mental
status. Claimant, however, accuses the ALJ of ignoring treatment notes which
contradicted her observation of improvement. Although various treatment notes indicate
that Claimant has not fully recovered, these relatively sporadic setbacks do not undercut
the significance of Claimant’s substantial improvement from psychotherapy treatment.
Contrary to Claimant’s characterization, the ALJ did not improperly ignore treatment
notes which contradicted her opinion, but rather assessed those notes as a whole to reach
her conclusion of substantial improvement. See Cotter v. Harris, 642 F.2d 700, 705 (3d
Cir. 1981) (“We are also cognizant that when the medical testimony or conclusions are
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conflicting, the ALJ is not only entitled but required to choose between them.”). Notably,
the entries relied upon by Claimant to demonstrate the limit of his progress mostly detail
Claimant’s self-reported symptoms, as opposed to the doctor’s and therapist’s numerous
assessments of continual improvement.
Likewise, Claimant challenges the ALJ’s dismissal of the Global Assessment of
Functioning Scale (“GAF”)2 estimates of the treating psychological sources, again
accusing the ALJ of applying her own “lay” reinterpretation of the psychotherapy records.
The ALJ discredited the GAF assessments, one aspect of Dr. Erro’s opinion, as “not
consistent with or supported by the symptoms reported in the session notes.” (App. at
31.) The ALJ pointed out that the initial GAF of 49 was assessed at the time of
Claimant’s first evaluation in November 2001, before any treatment was administered.3
One month later, Claimant was assessed a GAF of 40, and finally, in February 2002, was
again assessed with a GAF of 49.4 Since that time, however, the ALJ observed:
The notes show a dramatic and positive response to treatment. Although
2
GAF measures the psychological, social, and occupational functioning levels of an
individual. See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed. 1994).
3
In detailing his rationale for according less weight to the GAF estimates, the ALJ
misstated the initial GAF assessment as “40,” rather than 49.
4
A GAF score falling between 41 and 50 indicates “‘serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).’” Boyd
v. Apfel, 239 F.3d 698, 702 (5th Cir. 2001) (quoting American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994)).
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the claimant had more symptomatology at the initial psychological
evaluation on December 21, 2001, he then was taking psychotropic
medication and getting counseling that showed increased levels of social
functioning and a decrease in psychotic symptoms within a year of his
alleged onset date. For example, [listing numerous examples] . . . . In less
than one year of mental health treatment, the only remaining significant
mental limitation appears to be in the area of concentration and attention.
(Id. at 34.) In light of the latter treatment notes, which undeniably set forth a consistent
pattern of substantial improvement, including in the area of social functioning, the ALJ
justifiably accorded less weight to Dr. Erro’s and Mr. Sosa’s GAF assessments as an
inaccurate indicator of the present severity of Claimant’s mental impairments. In light of
the objective documentary evidence, this was proper. See Williams v. Sullivan, 970 F.2d
1178, 1187 (3d Cir. 1992) (noting Commissioner’s obligation to weigh medical evidence
and choose between conflicting accounts). Unlike in Morales v. Apfel, 225 F.3d 310 (3d
Cir. 2000), upon which Claimant relies, the ALJ here did not inappropriately reject the
treating physician’s opinion on the basis of credibility judgments, speculation, or lay
opinion. Instead, the ALJ’s finding was based on the objective medical evidence
contained in the psychotherapy treatment notes, and is not “overwhelmed” by contrary
evidence in the record. See id. at 320.
Turning to Claimant’s second alleged point of error, although the ALJ did not
grant Claimant’s request to subpoena Dr. Erro, she did grant the alternative request of
sending Claimant for a post-hearing psychological consultative examination. Claimant
asserts that Dr. Laviolette had not been furnished with the entirety of his mental treatment
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records to review in connection with the examination, as he had requested at the
administrative hearing. In addition, the ALJ did not respond to Claimant’s objection,
made after the consultative examination, that Dr. Laviolette had not been provided with
the treatment records. Claimant, however, cites no authority in support of his contention
that the ALJ was obligated to send those treatment records. Importantly, considering
issues of fundamental fairness, there is no evidence that Dr. Laviolette could not render
an accurate assessment without the additional materials, and it is not even clear from the
record that Claimant’s documentary file was not supplied to Dr. Laviolette, although the
doctor did not reference it in his report. Finally, it is noted that the ALJ ordered the post-
hearing consultative psychiatric examination to satisfy Claimant’s - not the ALJ’s - desire
for further evidence and clarification of the record. As discussed above, the ALJ did not
believe that the record required further supplementation. Nor did she indicate that a
consultative examination was necessary to resolve conflicts in the record evidence. In
short, any failure of the ALJ to supply Dr. Laviolette with Claimant’s documentary file
does not constitute reversible legal error.
Third, Claimant challenges the ALJ’s reliance upon the non-examining state
agency psychologist’s May 17, 2002 assessment to support her conclusions regarding
Claimant’s mental impairments and mental Residual Functioning Capacity (“RFC”),
contending that the assessment does not constitute substantial evidence. The state agency
consultant found that Claimant’s schizoaffective disorder caused “mild limitations in . . .
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daily living; mild limitations in his social functioning; moderate limitations in his
concentration, persistence, or pace; and no episodes of decompensation.” (App. at 31,
248.) These limitations were ultimately adopted by the ALJ in fashioning Claimant’s
RFC. Initially, Claimant argues that the consultant’s assessment should not be accorded
substantial weight because Claimant submitted additional treatment records following
that assessment. The subsequent records, however, were taken into account by the ALJ in
conjunction with the consultant’s assessment, and significantly, they bolster the ALJ’s
findings regarding the extent and ramifications of Claimant’s mental impairments. In
contrast, the state agency reports erroneously relied upon by the ALJ in Morales v. Apfel
were prepared without the benefit of subsequent examinations and a treating physician
assessment which all directly undermined the conclusions drawn by the state agency
doctors. See 225 F.3d at 320. Claimant additionally argues that the ALJ ignored the
consultant’s second check-list evaluation, also prepared on May 17, 2002. This second
assessment found Claimant moderately limited in several areas falling under the rubric of
“sustained concentration and persistence,” including the ability to carry out detailed
instructions, maintain attention and concentration for extended periods, and perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances. (See App. at 252.) The consultant opined that Claimant “is
capable of performing adequate . . . self care with physical problems being the primary
limiting factor. He can get along with people and communicate clearly. Self
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preoccupation can affect concentration. He can follow instructions and is capable of
performing simple, routine tasks.” (Id. at 254.) Although the ALJ did not reference this
second report in her decision, it clearly reinforces the conclusions reached in the
consultant’s first report. Despite his findings regarding Claimant’s limited abilities in
maintaining concentration and persistence, the consultant nonetheless determined
Claimant capable of following simple instructions and performing routine tasks. This is
entirely consistent with the ALJ’s observation, based on her review of the treatment notes,
that “the only remaining significant mental limitation appears to be in the area of
concentration and attention.” (Id. at 34.) Furthermore, as noted by the ALJ, this
determination comports with Dr. Laviolette’s finding that Claimant’s ability to follow
simple instructions was limited, but not precluded. The ALJ accordingly restricted
Claimant to work involving no more than simple instructions. In reaching her finding
that Claimant’s mental impairments were not disabling, the ALJ considered the record as
a whole. The mental impairment and mental RFC analyses are free of reversible legal
error and are supported by substantial evidence.
Last, Claimant contends that the ALJ’s physical RFC findings are not supported by
substantial evidence. The ALJ calculated that Claimant retains the following physical
RFC:
[L]ight exertion, not requiring lifting with his right upper extremity above
his shoulder; that would allow him to use a cane for standing and walking;
not requiring use of his right foot for repetitive actions such as operating
foot controls; requiring no more than occasional postural activities; with no
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concentrated or excessive exposure to extreme cold, dampness, or
vibrations . . . .
(Id. at 34.) The ALJ based her physical RFC analysis on the evaluations of Dr.
Buschiazzo. She rejected, however, his conclusion that “claimant is limited to standing
and walking only one hour,” (id.), as being unsupported by the objective medical
evidence and because Claimant’s testimony on that matter was embellished and
unconvincing.
Claimant initially points out that Dr. Buschiazzo was not supplied with pertinent
medical records. In his initial examination, Dr. Buschiazzo diagnosed “[c]hronic
lumbalgia with possible right lower extremity radiculopathy, possibly secondary to
degenerative joint disease. Correlation with x-rays taken at Temple University Hospital
during the current year would be helpful.” (Id. at 215.) He noted in his follow-up
examination that Claimant had undergone “x-rays at Temple University of his head, but
does not know the results. Examination of the head is otherwise normal.” (Id. at 226.)
Significantly, however, Dr. Buschiazzo never specifically requested such records, never
ordered additional testing despite ordering additional pulmonary testing, and did not
otherwise state or imply that the absence of such records undermined the accuracy of his
diagnoses. Claimant’s assertion that the failure to ensure Dr. Buschiazzo access to the
necessary treatment documents necessarily resulted in a compromised diagnosis is simply
not supported by the record. Claimant’s reliance on 20 C.F.R. § 416.912(f), which states
that “[g]enerally, we will not request a consultative examination until we have made
10
every reasonable effort to obtain evidence from your own medical sources,” to support his
argument is misplaced. The various testing and documents that Claimant highlights were
not provided to Dr. Buschiazzo were available to and were expressly considered by the
ALJ, who in fact found that Claimant suffered from degenerative disc disease of the
lumbar spine.
The ALJ’s rejection of Dr. Buschiazzo’s standing and walking limitations is
soundly based on substantial evidence. Claimant’s back pain, which he represented to Dr.
Buschiazzo as intermittent and which radiated to his right lower extremity, was
conservatively treated with Anaprox. Claimant explicitly stated in his SSI application
that the medication provided some pain relief. Furthermore, Dr. Buschiazzo found that
all ranges of motion were within normal limits, except for only mild limitations in the hip
and shoulder. The ALJ additionally noted her concern that Claimant did not put forth full
effort during his various examinations, as confirmed by Dr. Buschiazzo and Dr.
Laviolette, and that he exaggerated his symptomatology at the administrative hearing, as
confirmed by impeachment with the psychotherapy notes. See Sullivan, 970 F.2d at 1187(noting Commissioner’s obligation to weigh medical evidence and choose between
conflicting accounts). In any event, the ALJ’s dismissal of Dr. Buschiazzo’s standing and
walking limitations did not prejudice Claimant because she determined that Claimant
could perform his past relevant work as a stone setter, which is classified as unskilled,
sedentary work. The Vocational Expert confirmed that even if Claimant was limited to
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standing and walking no more than one to two hours in an eight-hour day, he could still
perform his past relevant work as a stone setter.
The ALJ’s assessment of Claimant’s physical RFC is supported by substantial
evidence.
IV.
For the foregoing reasons, the judgment of the District Court entered on July 8,
2004, will be affirmed.
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