HARRISON v. COLVIN

Filing 22

ORDER THAT HARRISON'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. HARRISON'S MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR REVIEW IS DENIED. JUDGMENT IS ENTERED AFFIRMING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY. THE CLERK OF COURT SHALL MARK THIS CASE CLOSED.. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 1/13/2017. 1/17/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TERRI L. HARRISON
v.
CAROLYN W. COLVIN,
Commissioner of Social Security

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CIVIL ACTION
No. 14-4553

ORDER
AND NOW, this 13th day of January, 2017, upon consideration of Plaintiff Terri L.
Harrison’s Motion for Summary Judgment and Request for Review, the Commissioner of Social
Security’s response, and Harrison’s reply, and after careful and independent review of the Report
and Recommendation of United States Magistrate Judge M. Faith Angell, Harrison’s objections,
and the Commissioner’s response, it is ORDERED:
1. Harrison’s objections to the Report and Recommendation (Document 19) are
OVERRULED 1;

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Harrison seeks review of the denial of her application for a period of disability and Disability
Insurance Benefits and her application for Supplemental Security Income by the Commissioner
of Social Security. In a decision issued on March 4, 2013, an Administrative Law Judge (ALJ),
applying the Social Security Administration’s five-step sequential evaluation process for
determining whether an individual is disabled, see 20 C.F.R. §§ 404.1520, 416.920, concluded
Harrison was not disabled at any time during the relevant period. The ALJ found Harrison
suffered from the following severe impairments: (1) major depression disorder; (2) anxiety
disorder; (3) HIV+; and (4) history of alcohol abuse. However, the ALJ concluded these
impairments did not meet or medically equal any of the listed impairments. Upon consideration
of the record, including Harrison’s medical records and hearing testimony, as well as the hearing
testimony of a vocational expert, the ALJ concluded Harrison retained the residual functional
capacity (RFC) to perform light work, subject to the additional limitations that she requires
simple and repetitive work involving no teams and no more than minimal contact with the
public. Based on this RFC assessment, the ALJ found Harrison was capable of performing past
relevant work as a hand packer and/or commercial cleaner.
In her request for review, Harrison argues the ALJ’s decision is not supported by
substantial evidence because the ALJ (1) failed to properly consider all of Harrison’s ailments,
namely peripheral neuropathy and (2) erred in affording great weight to the opinion of Dr. Fred
Tehrani, a non-treating source. On November 5, 2015, Judge Angell issued a Report and

Recommendation (R&R) addressing these alleged errors, concluding the ALJ’s decision was
supported by substantial evidence, and recommending the Commissioner’s denial of benefits be
affirmed. Harrison filed objections to the R&R, reasserting the two issues raised in her request
for review.
Under 28 U.S.C. § 636(b)(1), this Court reviews de novo “those portions of the report or
specified proposed findings or recommendations to which objection is made.” Upon de novo
review of the record, this Court finds Harrison’s objections meritless.
As to the first issue, the Court agrees with the Magistrate Judge that the ALJ did not err
in declining to find Harrison’s peripheral neuropathy was a severe impairment, or in accounting
for Harrison’s complaints related to peripheral neuropathy in evaluating her RFC. The record
shows Harrison was diagnosed with peripheral neuropathy, which was being treated with
medication, but doctors’ notes indicated Harrison was not complaining of pain, and was in fact
“doing well,” during the relevant time period. See R&R 10 (citing R. at 357, 420, 428, 480,
490). The record is devoid of any medical opinion concerning pain or functional limitation due
to peripheral neuropathy. See id. at 9. Although Harrison complained of pain in her hearing
testimony, the Court grants deference to the ALJ’s finding that Harrison’s self-reported daily and
work activities, as well as the medical record, are inconsistent with her subjective complaints.
See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983) (“[T]he ALJ is empowered to
evaluate the credibility of witnesses[.]”); 20 CFR § 404.1529(c)(4). The ALJ therefore had
substantial evidence to exclude peripheral neuropathy as a severe impairment, and to find that
any pain Harrison experienced did not affect her RFC. See Hughes v. Comm’r of Soc. Sec., 297
F. App’x 123, 125 (3d Cir. 2008) (finding substantial evidence supported the ALJ’s conclusion
that an impairment was not severe where plaintiff’s complaints of pain were unsupported by any
objective medical evidence); Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002) (holding that
substantial evidence supported the ALJ’s rejection of plaintiff’s complaints of pain where there
existed “contradictory testimony and [a] lack of significant medical evidence or a medical
opinion fully supporting his subjective assessment”); Higgins v. Astrue, No. 07-300, 2009 WL
691028, at *4 (W.D. Pa. Mar. 16, 2009) (“[I]t is well settled that disability is not determined
merely by the presence of impairments, but by the effect that those impairments have upon an
individual’s ability to perform substantial gainful activity.”) (citing Jones v. Sullivan, 954 F.2d
125, 129 (3d Cir.1991)); 20 C.F.R. §§ 404.1508, 404.1527, 404.1528.
Harrison argues that even if peripheral neuropathy is non-severe, the ALJ erred by failing
to assess the condition. Pl.’s Objs. 3. An ALJ “must consider all evidence before him” and
provide “some indication of the evidence which he rejects and his reason(s) for discounting such
evidence.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000). “In the
absence of such an indication, the reviewing court cannot tell if significant probative evidence
was not credited or simply ignored.” Id. (internal quotation marks and citation excluded).
District courts in this Circuit have held that, “[a]t the very least, the ALJ [i]s required to address
each diagnosis and offer some explanation as to why he did or did not afford it significant
weight.” Dixon v. Brarnhard, No. 03-5291, 2005 WL 113411, at *7 (E.D. Pa. Jan. 19, 2005);
see also Gonzalez v. Colvin, No. 13-6714, 2015 WL 1501624, at *2 (E.D. Pa. Jan. 26, 2015).
In this case, the ALJ failed to directly address Harrison’s diagnosis of peripheral
neuropathy, mentioning only that Harrison self-reported “neuropathy of the hands and legs” to
Dr. Lori Hart. R. at 106-07. The ALJ also mischaracterized Harrison’s testimony, stating,
“[Harrison] said that as a result of the car accident, she has pain in her back, hands, legs, chest
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2. The Report and Recommendation (Document 18) is APPROVED and ADOPTED;
3. Harrison’s Motion for Summary Judgment and Request for Review (Document 10) is
DENIED;
4. Judgment is entered affirming the decision of the Commissioner of Social Security;
and

and feet.” Id. at 109. In fact, Harrison attributed only her back pain to the car accident, and
attributed her hand, leg, and foot pain to peripheral neuropathy. Id. at 25. Nevertheless, the ALJ
expressly addressed Harrison’s reported pain and asserted limitations due to her hand pain—
namely difficulty washing dishes and frequent dropping of things—but found those subjective
complaints unsupported by the record. The Court is therefore able to conclude that “significant
probative evidence” was not “simply ignored,” Burnett, 220 F.3d at 121, as the ALJ expressly
considered Harrison’s complaints of pain resulting from her peripheral neuropathy in evaluating
Harrison’s RFC. Compare Gonzalez, 2015 WL 1501624, at *2 (remanding where the ALJ’s
failure to mention plaintiff’s hepatitis C diagnosis or consider its possible symptoms precluded
the court from discerning whether the ALJ evaluated that evidence or could have reached a
different conclusion had he considered such evidence); Dixon, 2005 WL 113411, at *7
(remanding where the ALJ failed to address “several serious medical impairments noted by
[p]laintiff’s treating physicians,” ignored “observations accompanying the reports express[ing]
doubt about [p]laintiff’s ability to function” and credited only parts of certain medical reports).
As to the second issue, the Court agrees with the Magistrate Judge that the ALJ did not
err in her assessment of Dr. Tehrani’s report. Harrison argues the ALJ inappropriately relied on
Dr. Tehrani’s opinion, which is “laden with errors that undermines [its] reliability.” Pl.’s Br. 13;
see Pl.’s Objs. 5-6. Harrison contends an ALJ’s decision based on factual errors in a medical
opinion must be remanded, citing Brownawell v. Comm’r of Soc. Sec., 554 F.3d 353, 355 (3d
Cir. 2008). In Brownawell, the ALJ rejected two treating physicians’ opinions based “in large
part on evidence that does not exist,” and instead assigned great weight to a non-examining
doctor whose opinion contained errors pertinent to the doctor’s disability finding. The Third
Circuit found that “[e]valuation of the medical evidence as a whole,” including the discredited
opinions, demonstrated the non-treating doctor’s opinion “should not have carried such weight,”
and warranted remand. Id. at 357. Here, however, as noted by the Magistrate Judge, the ALJ
did not adopt Dr. Tehrani’s findings. See R&R 13. Even if the ALJ assigned Dr. Tehrani’s
report great weight without so stating, the report is not inconsistent with other medical opinions
in the record. Moreover, the ALJ did not rely or base her opinion on the three alleged errors
identified by Harrison—concerning her weight, her cigarette smoking, and her IV drug abuse.
Accordingly, the Court adopts the Magistrate Judge’s R&R and denies Harrison’s request
for review.
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5. The Clerk of Court is directed to mark this case CLOSED.

BY THE COURT:

/s/ Juan R. Sánchez .
Juan R. Sánchez, J.

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