DUDA v. ASTRUE

Filing 23

MEMORANDUM & ORDER THAT PLAINTIFFS OBJECTIONS ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PLAINTIFFS REQUEST FOR REVIEW IS DENIED. THE DECISION OF THE COMMISSIONER IS AFFIRMED.. SIGNED BY HONORABLE JOHN R. PADOVA ON 4/9/14. 4/10/14 ENTERED AND COPIES EMAILED.SIGNED BY HONORABLE JOHN R. PADOVA ON 4/9/14. 4/11/14 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY DUDA
v.
CAROLYN W. COLVIN
Acting Commissioner of Social Security

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CIVIL ACTION

No. 12-5361

ORDER-MEMORANDUM
AND NOW, this 9th day of April, 2014, upon consideration of Plaintiff’s Brief and
Statement of Issues in Support of Request for Review (Docket No. 8), Defendant’s Response
thereto (Docket No. 10), Plaintiff’s Reply (Docket No. 12), the Report and Recommendation of
United States Magistrate Judge Faith Angell (Docket No. 18), and Plaintiff’s Objections thereto
(Docket No. 19), IT IS HEREBY ORDERED as follows:
1.

Plaintiff’s Objections are OVERRULED;

2.

The Report and Recommendation is APPROVED and ADOPTED;

3.

Plaintiff’s Request for Review is DENIED;

4.

The Decision of the Commissioner is AFFIRMED.

The Administrative Law Judge (“ALJ”) in this case denied Plaintiff’s request for
disability insurance benefits and supplemental security income under Titles II and XVI,
respectively, of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-83f. The ALJ found that
Plaintiff had severe impairments involving his neck, back, and shoulder, with pain and mild
degenerative changes, and had a non-severe impairment of depressive disorder and a non-severe
impairment of the right ring finger. (R. 14.) The ALJ determined at step three of the five-step
review process that Plaintiff had the residual functional capacity (“RFC”) to perform his past
work as a gas meter checker and as a pool servicer at the light exertional level. (R. 19.) The

ALJ found, upon review of the medical evidence, that Plaintiff’s physical impairments could
reasonably be expected to cause the symptoms he alleged. However, the ALJ rejected Plaintiff’s
statements concerning the intensity, persistence, and limiting effects of those physical
impairments, noting that since his alleged onset date, Plaintiff had received only conservative
treatment for his neck, back, and shoulder impairments; rarely used a cane, neck brace and back
brace; and could do a fair number of activities consistent with the RFC level determined by the
ALJ. (R. 15-19.) Alternatively, the ALJ determined at step five that Plaintiff had the RFC to
perform sedentary work with a sit/stand option with limited pushing, pulling, and reaching with
the non-dominant arm. (R. 20.)
In his Brief and Statement of Issues in Support of Request for Review, Plaintiff argued,
inter alia, that the ALJ erred by failing to include his mild limitations with regard to
concentration, persistence, and pace in her hypothetical questions to the Vocational Expert
(“VE”). (Docket No. 8 at 10-14.) The Magistrate Judge rejected Plaintiff’s argument, finding
that, because the medical evidence established that Plaintiff did not suffer from a severe mental
impairment that interfered with his past work, the ALJ did not err by failing to include a mental
health limitation in the VE questions. (Docket No. 18 at 16.) The Magistrate Judge noted that
the ALJ adopted the finding of the state reviewing psychologist regarding Plaintiff’s mental
limitations, which was the only mental health evidence in the record. (Id.) The Magistrate Judge
recommended that the failure to include the reviewing psychologist’s finding of a mild limitation
on concentration, persistence, and pace in the RFC was not error since the lack of any mental
impairment was consistent with Plaintiff’s description of his social functioning and daily
activities, his failure to report any problems with concentrating when completing daily activities,
and his lack of complaint that his non-severe depressive disorder interfered with his past work.

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(Id.) The Magistrate Judge also noted that the record failed to show that Plaintiff ever sought
specialized mental health treatment; Plaintiff never complained to a medical source that he had
limitations in concentration, persistence and pace; and he did not mention any such limitation at
the ALJ’s hearing. (Id. at 16-17.) The Magistrate Judge concluded that the ALJ’s determination
that Plaintiff’s mental impairment was not vocationally significant was supported by substantial
evidence.
In his Objections, Plaintiff reasserts the same argument that he presented to the
Magistrate Judge.

Having reviewed the entire record, the ALJ’s determination, and the

Magistrate Judge’s Report and Recommendation, we agree with the Magistrate Judge that the
ALJ’s failure to include the records review psychologist’s finding of a mild limitation on
concentration, persistence, and pace in the RFC determination is not reversible error. As the
Magistrate Judge noted, there was no treating source medical evidence supporting such a
limitation. The lack of medical evidence supported the ALJ’s determination that Plaintiff’s
mental impairment was non-severe. The lack of any evidence that this limitation affected
Plaintiff’s social functioning, daily activities, or his past work, is substantial evidence supporting
the ALJ’s conclusion that this impairment did not impact the RFC determination at step three or
at step five.
BY THE COURT:

/s/John R. Padova
_______________________________________
John R. Padova

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