Passaretti v. Berryhill, CIVIL NO. 4:17-CV-1674

• Decision Date: 10 July 2018
• Docket Number: CIVIL NO. 4:17-CV-1674
• Parties: RICHARD PASSARETTI, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

RICHARD PASSARETTI, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of

Social Security, Defendant.

CIVIL NO. 4:17-CV-1674

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 10, 2018

(Magistrate Judge Carlson)

MEMORAUNDUM OPINION

I. Introduction

In this case we do not write upon a blank slate. Quite the contrary, this is Richard Passaretti's second Social Security appeal. Passaretti's initial application for disability benefits was denied by an Administrative Law Judge ("ALJ") in August of 2013, and the decision denying benefits to Passaretti was affirmed by the district court in September of 2015. Passaretti v. Colvin, No. 3:15-CV-520, 2015 WL 5697510, at *1 (M.D. Pa. Sept. 24, 2015). Thus, this ruling acts as res judicata on any disability claims made by Passaretti prior to August of 2013.

Undeterred by this adverse ruling, Passaretti submitted a second disability application, alleging a date of onset for his disability beginning on August 24, 2013, the date of the denial of his prior application. Passaretti's second disability application was supported by a Medical Questionnaire completed by a treating physician, Dr. Schachter. Given the procedural history of this case, Dr. Schachter's medical statement was problematic on a number of scores. First, that questionnaire was completed as a check block form. In addition, Dr. Schachter alleged that Passaretti's symptoms and limitations had existed since 2009. (Tr. 1213.) Several factors combined to undermine the credibility of this assertion. First, it is undisputed that Passaretti was employed between 2009 and 2011, and earned more than $260,000 during this period. Thus, Dr. Schachter's opinion suggested that Passaretti was disabled at a time when he was, in fact, employed. In addition, Dr. Schachter's opinion, which indicated that Passaretti's disabling conditions had existed since 2009, implicitly rejected what was the law of this case, the previous agency finding, which had been affirmed by this court, that Passaretti was not disabled prior to August of 2013. Indeed, in the course of his initial disability application Passaretti himself had acknowledged that he was not disabled between 2009 and 2011 since he amended the initial alleged date of onset of his disability from 2001 to a date after he stopped working in 2011.

Presented with this second disability application, the ALJ concluded that Passaretti could perform a limited range of sedentary work, and denied this second disability application. In reaching this conclusion the ALJ gave no weight to Dr. Schachter's opinion, which had alleged an onset of disability in 2009, citing thefact that Passaretti was actually employed from 2009 through 2011 at the same time that the doctor claimed he was wholly disabled. The ALJ's treatment of this medical opinion now forms the basis of the instant appeal, with Passaretti alleging that the ALJ erred in rejecting Dr. Schachter's opinion, and that the Commissioner and the ALJ further compounded this error by failing to consider Passaretti's assertion that the payments he received from his employer over this three-year period consisted of subsidies, and not actual wages.

On appeal, we are now charged with the responsibility of determining whether the ALJ's decision was supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). It is less than a preponderance of the evidence but more than a mere scintilla of proof. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). Given the deferential standard of review that applies to Social Security appeals, which calls upon us simply to determine whether substantial evidence supports the ALJ's findings, we conclude that substantial evidence exists in this case which justified the ALJ's assessment of Dr. Schachter's opinion and contributed to thedenial of this particular claim. We also conclude that the basis for these determinations was adequately articulated by the ALJ in this decision addressing Passaretti's claim, and that further proceedings for the purpose of investigating whether more than $260,000 in payments received by Passaretti were subsidies rather than wages was not necessary. Therefore, for the reasons set forth below, we will affirm the decision of the Commissioner in this case.

II. Statement of Facts

The background of this protracted disability case was aptly summarized by this court in 2015 when it denied Passaretti's first Social Security appeal. "On October 19, 2011, [Passaretti] filed an application for DIB. . . [in which], Plaintiff initially alleged disability beginning on September 11, 2001, due to a number of physical conditions." Passaretti v. Colvin, No. 3:15-CV-520, 2015 WL 5697510, at *1 (M.D. Pa. Sept. 24, 2015). Specifically, "[i]In the November 3, 2011, Disability Report, Plaintiff alleged disability due to autoimmune disorder, hepatitis C, sarcoidosis, gastroenteritis, sleep apnea, neuropathy, diabetes, rheumatoid arthritis, hypertension, WPW (Wolfe-Parkinson-White), asthma, lyme disease, and bronchitis. (R. 186.) Plaintiff originally identified his onset date as September 11, 2001, and later amended it to October 19, 2011." Id. at *1. With respect to this application, the record revealed that:

Plaintiff was born on February 25, 1970. (R. 30.) He was forty-one years old on the alleged disability onset date of October 19, 2011. Plaintiff has a high school education. (R. 49.) In the October 24, 2011, Disability Report, he reported that he stopped working on October 19, 2011, because of his conditions. (R. 186.) Plaintiff has past relevant work as a utility company mechanic aide. (R. 28, 72.) He said that he had worked for Con-Ed in that capacity for twenty-two years and was terminated due to physical restrictions as a result of 9/11. (R. 638.) After he was terminated, Plaintiff collected unemployment compensation benefits.

Id. at *2.

On August 23, 2013, the ALJ entered an order denying Passaretti's first disability application. In this decision, the ALJ concluded that Passaretti retained the residual functional capacity to perform a range of light work, and accordingly, concluded at Step 5 of the sequential analysis that applies to disability cases that there were significant jobs which Passaretti could perform. Therefore, the ALJ denied this disability application. Id. at *5.

Passaretti appealed this decision, but on September 24, 2015, this court affirmed the judgment of the ALJ denying Passaretti's disability claim. Passaretti v. Colvin, No. 3:15-CV-520, 2015 WL 5697510, at *1 (M.D. Pa. Sept. 24, 2015). While this appeal was pending, Passaretti filed a second application for disability insurance benefits pursuant to Title II of the Social Security Act on May 21, 2015. (Tr. 10.) In this second application, Passaretti alleged an onset of disability on August 24, 2013, the date of the denial of his first disability claim. (Id.)

With respect to the sole substantive issue raised in this appeal, the ALJ's assessment of the medical opinion evidence submitted by one of Passaretti's treating sources, Dr. Schachter, the pertinent facts can be simply stated.¹ On April 15, 2016 Dr. Schachter submitted a medical questionnaire in this case. (Tr. 1204-14.) This questionnaire was a check block form, and in this questionnaire Dr. Schachter opined that Passaretti was wholly disabled. Notably, the form completed by Dr. Schachter alleged that these symptoms and disabling impairments began in 2009. (Tr. 1213.)

This statement by the doctor was problematic on at least three scores. First, it conflicted with Passaretti's employment history which revealed that he earned $96,845.80 in 2009, $101,377.28 in 2010, and $69,258.16 in 2011, for total earnings of $267,481.14 during this three-year span. (Tr. 131.) Second, this statement was inconsistent with the law of this case, as reflected in the prior res judicata finding that Passaretti did not suffer from a disability prior to August of 2013. Finally, this assertion was contradicted by Passaretti himself, who alleged in his initial disability application an onset of disability in October 2011, not 2009 as claimed by Dr. Schachter.

With Dr. Schachter's medical opinion comprising part of the medical record, this case then proceeded to a hearing before an ALJ on June 9, 2016. Following that hearing, on October 4, 2016, the ALJ issued a decision denying Passaretti's second disability application. (Tr. 7-27.) In this decision, the ALJ first found that Passaretti met the insured requirements of the Act through March of 2017. (Tr. 15.) At Step 2 of this sequential analysis, the ALJ found that Passaretti suffered from the following severe impairments—asthma-sarcoidosis, COPD, diabetes, cardiac arrhythmia, Wolff-Parkinson-White syndrome, degenerative disc disease, depression and post-traumatic stress disorder—but concluded at Step 3 that none of these impairments met a listing requirement. (Tr. 15-19.) None of those findings are contested in this appeal.

The ALJ then determined that Passaretti retained the residual functional capacity to perform work at the sedentary level, with some postural limitations, and in a low-stress work environment. (Tr. 20.) In reaching this conclusion regarding Passaretti's capacity for work, the ALJ carefully canvassed the medical opinion and treatment evidence in this case, including Dr. Schachter's April 2016 medical opinion. The ALJ afforded "no weight" to this particular medical opinion, observing that the doctor's claims that Passaretti had been disabled since 2009 were plainly contradicted by the fact that the "claimant was able to...