United States District Court, D. Maryland
November 22, 2016, Plaintiff Juan Sepulveda Mattei, III
petitioned this Court to review the Social Security
Administration's final decision to deny his claims for
Disability Insurance Benefits and Supplemental Security
Income. (ECF No. 1). I have considered the parties'
cross-motions for summary judgment. (ECF Nos. 17, 19). I find
that no hearing is necessary. See Loc. R. 105.6 (D.
Md. 2016). This Court must uphold the decision of the Agency
if it is supported by substantial evidence and if the Agency
employed proper legal standards. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). Under that standard, I will
deny Mr. Mattei's motion, grant the Commissioner's
motion, and affirm the Commissioner's judgment pursuant
to sentence four of 42 U.S.C. § 405(g). This letter
explains my rationale.
previously being denied benefits, (Tr. 85-88, 93-105), Mr.
Mattei filed his current claims for benefits on February 11,
2013, alleging a disability onset date of August 11, 2011.
(Tr. 274-80). His claims were denied initially and on
reconsideration. (Tr. 106-33, 136-65). A hearing was held on
July 14, 2015, before an Administrative Law Judge
(“ALJ”). (Tr. 54-84). Following the hearing, the
ALJ determined that Mr. Mattei was not disabled within the
meaning of the Social Security Act during the relevant time
frame. (Tr. 31-53). The Appeals Council (“AC”)
denied Mr. Mattei's request for review, (Tr. 1-9), so the
ALJ's decision constitutes the final, reviewable decision
of the Agency.
found that Mr. Mattei suffered from the severe impairments of
“obesity, sleep apnea, irritable bowel syndrome (IBS),
and depression - bipolar disorder.” (Tr. 36). Despite
these impairments, the ALJ determined that Mr. Mattei
retained the residual functional capacity (“RFC”)
perform a full range of work at all exertional levels but
with the following nonexertional limitations: He cannot squat
or crawl. He cannot perform production rate or pace work,
cannot work with the public and can only have occasional
contact with coworkers. Due to issues with fatigue and
additional breaks, he would be off-task 10 percent of the
workday. He additionally cannot climb stairs or ladders and
needs a cane for ambulation.
Juan Sepulveda Mattei v. Commissioner, Social Security
Administration Civil No. SAG-16-3773 August 8, 2017
(Tr. 39). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Mattei
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
makes several arguments on appeal: (1) that the ALJ did not
adequately assess his mental limitations; (2) that the ALJ
did not adequately assess his physical limitations; (3) that
the AC did not adequately consider medical records presented
at the appeal level; and (4) that the Commissioner improperly
ordered multiple consultative examinations with the same
provider. Each argument lacks merit and is addressed below.
with respect to his mental limitations, Plaintiff argues that
the ALJ disregarded the opinion of the non-examining State
agency physicians that he “will function best with
tasks that do not require extensive concentration and can be
completed alone.” Pl. Mot. 7-8 (citing (Tr. 116, 148)).
However, although the wording is different, the ALJ's RFC
assessment contains the functional equivalent of those
restrictions by stating that Plaintiff “cannot perform
production rate or pace work, ” “would be
off-task 10 percent of the workday, ” and “cannot
work with the public and can only have occasional contact
with coworkers.” (Tr. 39).
further argues that the ALJ improperly used his
“non-SGA income” as an Uber driver to deny his
claim. Pl. Mot. 8. However, the ALJ made no reference to
Plaintiff's income, other than to find that the
employment was not “substantial gainful
employment.” (Tr. 36, 44). Instead, the ALJ relied on
Plaintiff's ability to perform the duties of an Uber
driver without incident to contradict the assertions of
severe functional limitations made by Plaintiff's
treating therapist, Mr. Schweizer, who suggests that he
suffers “frequent disruptions from his bipolar
disorder.” (Tr. 44).
with respect to physical limitations, Plaintiff argues that
the ALJ improperly rejected the opinion of his treating
physician, Dr. Nwachinemere. Pl. Mot. 9. Specifically,
Plaintiff alleges that the ALJ rejected the opinion as
“wholly based on subjective complaints, ” and
suggests that the “findings of non-examiners must
necessarily be extremely subjective, since they have never
seen Mattei[.]” Id. In fact, however, the ALJ
also cited the fact that Dr. Nwachinemere's opinion was
unsupported by his treatment recommendations and his
follow-up testing and imaging. (Tr. 44). In addition, the
non-examiners reviewed both subjective evidence and evidence
of objective testing, so their opinions, which were awarded
“some weight, ” are not “extremely
subjective.” (Tr. 45, 113-15, 145-47). Moreover,
reliance upon the opinion of a non-examining physician is
precluded only where “it is contradicted by all of the
other evidence in the record.” Smith v.
Schweiker, 795 F.2d 343, 348 (4th Cir. 1986). In
Plaintiff's case, there is evidence both supporting and
undermining a finding of disability, so reliance on the
opinion of non-examining physicians is entirely proper.
also contends that the AC should not have rejected Dr.
Nwachinemere's opinion, since it had the benefit of
additional examination records that supported the opinion and
had not been presented to the ALJ. Pl. Mot. 9. In fact,
however, several of those examination records post-dated Dr.
Nwachinemere's opinion, and therefore did not provide a
basis for the earlier assessment. See,
e.g., (Tr. 829, 831). Under Meyer v.
Astrue, 662 F.3d 700, 705-06 (4th Cir.Juan Sepulveda
Mattei v. Commissioner, Social Security Administration
Civil No. SAG-16-3773 August 8, 2017 2011), the AC need not
articulate its findings as long as the Court can assess, from
a review of the entire record, the basis for the
Commissioner's decision. The existence of the new
examination records, which consist of a colonoscopy, an
abdominal ultrasound, a polysomnography, visits to the sleep
disorders clinic, and an appointment with an allergist, did
not undermine the ALJ's basis for assigning “little
weight” to Dr. Nwachinemere's opinion. The
ALJ's point is that Dr. Nwachinemere never made treatment
recommendations consistent with his opinion and did not order
any follow up testing or imaging, as one would expect for a
claimant who would have to elevate his legs more than 50
percent of the day and could only stand for a maximum of 10
minutes. (Tr. 44). Accordingly, I find no error in the
AC's consideration of the new records.
Plaintiff suggests, generally, that 20 C.F.R. §
404.1519j “should preclude repeated consultative
examinations with the same consultative examiner with the
same identical findings.” Pl. Mot. 9-10. In fact,
§ 404.1519j provides authority for a claimant or the
claimant's representative to “object to your being
examined by a medical source we have designated to perform a
consultative examination.” § 404.1519j. One stated
basis for making such an objection would be “whether
the medical source had examined you in connection with a
previous disability determination or decision that was
unfavorable to you.” Id. However, the language
of the provision clearly contemplates that the objection
should be made prior to the consultative examination, so that
it can be scheduled with a different physician. Id.
Plaintiff does not allege that ...