Kalenkoski v. Colvin

Filing 14

MEMORANDUM OPINION (Order to follow as separate docket entry) - Accordingly, for the foregoing reasons, we will affirm the decision of the Commissioner pursuant to 42 U.S.C. § 405(g). An order consistent with this memorandum will be entered separately. Signed by Magistrate Judge Martin C. Carlson on October 10, 2014. (kjn)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK KALENKOSKI,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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Civil No. 3:14-CV-00592
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Introduction

Plaintiff, Mark Kalenkoski, appeals from an adverse decision of the
Commissioner of Social Security denying his applications for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of
the Social Security Act. The jurisdiction of this Court is invoked pursuant to 42
U.S.C. §405(g) and 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g) by
reference). This matter has been referred to the undersigned United States Magistrate
Judge on consent of the parties for resolution pursuant to the provisions of 28 U.S.C.
§636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Docs. 12, 13). For the
reasons expressed herein, we will AFFIRM the decision of the Commissioner.
II.

Background and Procedural History

The plaintiff, Mark Kalenkoski, a former security guard, filed applications for

DIB and SSI in October of 2010, when he was only 25 years old, contending that his
severe migraines, head problems, and dizziness prevented him from engaging in full
time employment. (Tr. 156). Kalenkoski reported that he stopped working in October
of 2008 to pursue his bachelor’s degree, and in his application for DIB alleged that his
condition became disabling approximately one year later, on December 20, 2009.1 Id.
Kalenkoski’s applications were denied initially in January 2011. Following the
denial of his claim, Kalenkoski requested an administrative hearing to appeal the
initial denial of his claims. His request was granted, and on May 11, 2012, Plaintiff,
1

From the plaintiff’s perspective there is a notably lack of clarity regarding
when he became disabled. In his application for DIB Kalenkoski alleges that his
conditions became disabling as of December 20, 2009, (Tr. 132), whereas in his
application for SSI Plaintiff alleged that his disability began on October 13, 2008, the
date he stopped working. (Tr. 134). In his decision, the ALJ noted that Kalenkoski
alleged disability beginning December 20, 2009, in both applications. (Tr. 14).
Kalenkoski did not object to the use of the December 2009 onset date at any point
during the proceedings and in his brief notes that his alleged onset date for both
applications was December 20, 2009. (Doc. 8 p. 1). Plaintiff exhibited similar
confusion on the issue of the onset date of his migraine headaches relative to his last
day of employment. Kalenkoski testified that he had migraine headaches as a child
that stopped when he was 16 and resumed in 2009. Similarly, his treatment records
reflect that he was diagnosed with migraine NOS in December 2009 but was treating
with Dr. Dr. Aslam in 1997. (Tr. 81, 290, 459). Plaintiff testified that he had several
episodes while working as a security guard, and that his co-workers would help him
out to his car to lie down. (Tr. 83-84). However, in a disability report and work
history report Kalenkoski stated that he stopped working in 2008, (Tr. 156, 173), prior
to the resurgence of his symptoms. At his administrative hearing Plaintiff testified
that he stopped working in 2009, (Tr. 69), however his earning records do not reflect
any income in 2009. (Tr. 141).
2

represented by counsel, appeared and testified before Administrative Law Judge (ALJ)
Gerard Langan in Wilkes-Barre, Pennsylvania. Impartial Vocational Expert (VE)
Fran Terry also appeared and testified during the proceedings. On October 22, 2012,
the ALJ issued a written decision denying Kalenkoski’s applications. Plaintiff
requested review of the ALJ’s decision by the Appeals Council. On January 29, 2014,
the Appeals Council denied Kalenkoski’s request for review, making the ALJ’s
decision denying these claims the final decision of the Commissioner subject to
judicial review by this Court. 20 C.F.R. §§404.981, 416.1481.
On March 28, 2014, Kalenkoski initiated this action by filing a Complaint in
this Court in which he requested that this Court reverse the Commissioner’s final
decision denying Plaintiff’s applications and enter an order awarding benefits, or in
the alternative, that this matter be remanded to the Social Security Administration for
a new administrative hearing. (Doc. 1). On May 29, 2014, the Commissioner filed
her Answer to Plaintiff’s Complaint, in which she asserted that the decision of the
Commissioner is supported by substantial evidence and should not be disturbed.
(Doc. 6). Together with her Answer, the Commissioner filed a copy of the
administrative record. (Doc. 7). This appeal, having been fully briefed by the parties,
is now ripe for decision. (Docs. 8, 10).

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III.

Discussion

Plaintiff contends that the Commissioner’s decision that he is able to perform
his past work as a security guard or “other work,” is based on a faulty residual
functional capacity (RFC) assessment, and that the ALJ’s decision at step five of the
five step sequential disability analysis process was unsupported by substantial
evidence because the hypothetical questions posed to the VE did not reflect all of
Plaintiff’s credibly established limitations. In response, the Commissioner asserts that
the ALJ’s RFC assessment and the ALJ’s decision at step five are both supported by
substantial evidence.
A.

Standards of Review–The Roles of the Administrative Law
Judge and This Court

Resolution of the instant social security appeal involves an informed
consideration of the respective roles of two adjudicators–the ALJ and this court. At
the outset, it is the responsibility of the ALJ in the first instance to determine whether
a claimant has met the statutory prerequisites for entitlement to benefits. To receive
disability benefits, a claimant must present evidence which demonstrates that the
claimant has an inability to “engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period

4

of not less than 12 months.” 42U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A).
Furthermore,
[a]n individual shall be determined to be under a disability only if [her]
physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area
in which [she] lives, or whether a specific job vacancy exists for [her],
or whether [she] would be hired if [she] applied for work. For purposes
of the preceding sentence (with respect to any individual), “work which
exists in the national economy” means work which exists in significant
numbers either in the region where such individual lives or in several
regions of the country.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B).
1.

The Sequential Evaluation Process

In making this determination the ALJ employs a five-step evaluation process
to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520,
416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the ALJ
finds that a Plaintiff is disabled or not disabled at any point in the sequence, review
does not proceed any further. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). As
part of this analysis the ALJ must sequentially determine: (1) whether the claimant is
engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the claimant’s impairment meets or equals a listed
impairment; (4) whether the claimant’s impairment prevents the claimant from doing
5

past relevant work; and (5) whether the claimant’s impairment prevents the claimant
from doing any other work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Before considering step four in this process, the ALJ must also determine the
claimant’s residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).
RFC is defined as “that which an individual is still able to do despite the limitations
caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1545, 416.945. In
making this assessment, the ALJ considers all of the claimant’s impairments,
including any medically determinable non-severe impairments.

20 C.F.R.

§§404.1545(a)(2), 416.945(a)(2).
This disability determination involves shifting burdens of proof. The initial
burden rests with the claimant to demonstrate that she is unable to engage in past
relevant work. If the claimant satisfies this burden, then the Commissioner must show
that jobs exist in the national economy that a person with the claimant's abilities, age,
education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064
(3d Cir. 1993).
The ALJ’s disability determination must also meet certain basic procedural and
substantive requirements. Most significant among these legal benchmarks is a
requirement that the ALJ adequately explain the legal and factual basis for this
6

disability determination. Thus, in order to facilitate review of the decision under the
substantial evidence standard, the ALJ's decision must be accompanied by "a clear and
satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700,
704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must
indicate which evidence was accepted, which evidence was rejected, and the reasons
for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate
in his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.
1999).
2.

Legal Benchmarks for the ALJ’s Assessment of a Claimant’s
Credibility

An ALJ’s findings based on the credibility of a claimant are to be accorded
great weight and deference, since an ALJ is charged with the duty of observing a
witness’ demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL
288246, at *9(E.D. Pa. Mar. 7, 2000)(quoting Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 531(6th Cir. 1997)). Furthermore, in making a finding about the credibility
of a claimant’s statements, the ALJ need not totally accept or totally reject the
individual’s statements. SSR 96-7p. The ALJ may find all, some, or none of the
claimant’s allegations to be credible, or may find a claimant’s statements about the

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extent of his or her functional limitations to be credible but not to the degree alleged.
Id.
The Social Security Rulings and Regulations provide a framework under which
a claimant’s subjective complaints are to be considered. 20 C.F.R. §§ 404.1529,
416.929; SSR 96-7p. First, symptoms, such as pain or fatigue, will only be considered
to affect a claimant’s ability to perform work activities if such symptoms result from
an underlying physical or mental impairment that has been demonstrated to exist by
medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 967p. During the second step of his or her credibility assessment, the adjudicator must
determine whether the claimant’s statements about the intensity, persistence or
functionally limiting effects of his or her symptoms are substantiated based on the
adjudicator’s evaluation of the entire case record. 20 C.F.R. §§ 404.1529(c),
416.929(c); SSR 96-7p. This includes, but is not limited to: medical signs and
laboratory findings, diagnosis and other medical opinions provided by treating or
examining sources, and “other medical sources”; and, information concerning the
claimant’s symptoms and how they affect his or her ability to work. Id. The Social
Security Administration has recognized that individuals may experience their
symptoms differently and may be limited by their symptoms to a greater or lesser
extent than other individuals with the same medical impairments, signs, and laboratory
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findings. SSR 96-7p. Thus, to assist in the evaluation of a claimant’s subjective
symptoms, the Social Security Regulations identify seven factors which may be
relevant to the assessment of the severity or limiting effects of a claimant’s
impairment based on a claimant’s symptoms.

20 C.F.R. §§404.1529(c)(3),

416.929(c)(3). These factors include: activities of daily living; the location, duration,
frequency, and intensity of the claimant’s symptoms; precipitating and aggravating
factors; the type dosage, effectiveness, and side effects of any medication the claimant
takes or has taken to alleviate his or her symptoms; treatment, other than medication
that a claimant has received for relief; any measures the claimant has used to relieve
his or her symptoms; and, any other factors concerning the claimant’s functional
limitations and restrictions. Id.
3.

Legal Benchmarks for Assessing Treating Physician Opinions

The Social Security Regulations define “medical opinions” as “statements from
physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s), including
your symptoms, diagnosis and prognosis, what [he or she] can still do despite your
impairment(s), and your physical or mental restrictions.” 20 C.F.R. §§404.1527(a)(2)
and 416.927(a)(2). Although it is clearly within the ALJ’s authority to choose whom
to credit when the record contains conflicting medical opinions, Morales v. Apfel, 225
9

F.3d 310, 317 (3d Cir. 2000), the ALJ “cannot reject evidence for no reason or the
wrong reason.” Plummer, 186 F.3d at 429 (3d Cir. 1999)(citing Mason , 994 F.2d at
1066).
Moreover, like the evaluation of a claimant’s symptoms, the Social Security
Rulings and Regulations provide a framework under which medical opinion evidence
must be considered. It is well-established that “a cardinal principle guiding disability
eligibility determinations is that the ALJ accord treating physicians’ reports great
weight, especially when their opinions reflect expert judgment based on a continuing
observation over a prolonged period of time.” Morales, 225 F.3d at 317(citations
omitted). The Social Security Regulations provide that:
if [the ALJ] find[s] that a treating source’s opinion on the issue(s) of the
nature and severity of [a claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the claimant’s]
case record, [the ALJ] will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also SSR 96-2p.
In cases where the ALJ finds that no treating source opinion is entitled to
controlling weight, however, the regulations provide that the weight of all noncontrolling opinions by treating, examining, and non-examining medical sources
should be evaluated based on the following factors: (1) the length of treatment and
frequency of examination; (2) the nature and extent of the treatment relationship; (3)
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the opinion’s support by medical evidence; (4) the opinion’s consistency with the
record as a whole; and (5) the treating physician’s specialization.

20 C.F.R.

§§404.1527(c), 416.927(c). In addition, the ALJ should consider any other factors
that tend to support or contradict the opinion that were brought to his or her attention.
20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). In addition, the ALJ should consider any
other factors that tend to support or contradict the opinion, but only if brought to his
or her attention. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6).
4.

Other Procedural and Substantive Requisites for an ALJ
Ruling–Proper Hypothetical Questions for Vocational Experts

The formulation of a proper hypothetical question has a dual significance in
social security proceedings. First, as an evidentiary matter, it determines whether the
vocational expert’s opinion can be considered as substantial evidence supporting an
ALJ finding. Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).

More

fundamentally, however, an erroneous or inadequate hypothetical question
undermines the reliability of any RFC determination since “objections to the adequacy
of hypothetical questions posed to a vocational expert often boil down to attacks on
the RFC assessment itself.” Rutherford v. Barnhart, 399 F.3d 546, 554 n. 8 (3d Cir.
2005). As such, an ALJ must exercise care when formulating proper hypothetical
questions posed to VEs who opine on the availability of work for a particular

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claimant. In this regard, the controlling legal standards are clear, and clearly defined.
As the United States Court of Appeals for the Third Circuit has observed:
Discussing hypothetical questions posed to vocational experts, we have
said that “[w]hile the ALJ may proffer a variety of assumptions to the
expert, the vocational expert's testimony concerning a claimant's ability
to perform alternative employment may only be considered for purposes
of determining disability if the question accurately portrays the
claimant's individual physical and mental impairments.” Podedworny [v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984)]. A hypothetical question posed
to a vocational expert “must reflect all of a claimant's impairments.”
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987) (emphasis
added). Where there exists in the record medically undisputed evidence
of specific impairments not included in a hypothetical question to a
vocational expert, the expert's response is not considered substantial
evidence. Podedworny, 745 F.2d at 218 (citing Wallace v. Secretary of
Health & Human Servs., 722 F.2d 1150, 1155 (3d Cir.1983)).
Burns, 312 F.3d at 123.
In examining this issue, though,“[w]e do not require an ALJ to submit to the
vocational expert every impairment alleged by a claimant.” Rutherford v. Barnhart,
399 F.3d 546, 554 (3d Cir. 2005)(emphasis in original). Rather, the ALJ must simply
“accurately convey to the vocational expert all of a claimant's credibly established
limitations.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005), citing
Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999). Therefore, in making this
assessment and framing a proper hypothetical question for a vocational expert,
“[l]imitations that are medically supported but are also contradicted by other evidence
in the record may or may not be found credible—the ALJ can choose to credit
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portions of the existing evidence but ‘cannot reject evidence for no reason or for the
wrong reason’ (a principle repeated in Mason v. Shalala, 994 F.2d 1058, 1066 (3d
Cir.1993); Reg. § 929(c)(4)).” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005).
5.

Judicial Review of ALJ Determinations–Standard of Review

Once the ALJ has made a disability determination, it is then the responsibility
of this Court to independently review that finding. In undertaking this task, this Court
applies a specific, well-settled and carefully articulated standard of review. In an
action under 42 U.S.C. § 405(g) or 42 U.S.C. §1383(c)(3) to review the decision of
the Commissioner of Social Security denying a claim for disability benefits, the
“findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive[.]” 42 U.S.C. § 405(g).
The “substantial evidence” standard of review prescribed by statute is a
deferential standard of review. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
When reviewing the denial of disability benefits, we must simply determine whether
the denial is 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
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adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (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 (1971). Substantial evidence means "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55 F.3d 900, 901
(3d Cir. 1995)).
A single piece of evidence is not substantial evidence if the ALJ ignores
countervailing evidence or fails to resolve a conflict created by the evidence. Mason,
994 F.2d at 1064. However, in an adequately developed factual record, substantial
evidence may be "something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent [the
decision] from being supported by substantial evidence."

Consolo v. Federal

Maritime Comm'n, 383 U.S. 607, 620 (1966). Moreover, in conducting our review we
are cautioned that:
“[A]n ALJ's findings based on the credibility of the applicant are to be
accorded great weight and deference, particularly since an ALJ is
charged with the duty of observing a witness's demeanor and
credibility.” Walters v. Commissioner of Social Sec., 127 F.3d 525, 531
(6th Cir.1997); see also Casias v. Secretary of Health & Human Servs.,
933 F.2d 799, 801 (10th Cir.1991) (“We defer to the ALJ as trier of fact,
the individual optimally positioned to observe and assess witness
credibility.”).
Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D.Pa. Mar. 7, 2000).
14

Furthermore, in determining if the ALJ's decision is supported by substantial
evidence the court may not parse the record but rather must scrutinize the record as
a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
B.

The ALJ’s Decision

In the Commissioner’s final decision, dated October 22, 2012, the ALJ
proceeded through steps one through five of the five-step sequential evaluation
process, despite his finding at step four that Kalenkoski retained the requisite residual
functional capacity (RFC) to perform his past relevant work as a security guard. In
doing so, the ALJ found at step one that Plaintiff had not engaged in any substantial
gainful activity between his alleged onset date and the date of decision. (Tr. 16). At
step two, the ALJ found that Kalenkoski’s impairments due to migraine headaches,
asthma, vertigo, and scoliosis “severe” in that they had more than a minimal effect on
his ability to perform basic work activities, but found that Plaintiff’s medically
determinable impairment due to anxiety was “non-severe” as it did not cause more
than a minimal limitation in his ability to perform basic mental work activities. (Tr.
16-17). At step three, the ALJ found that none of Kalenkoski’s “severe” impairments,
either individually or in combination, met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404 Subpart P Appendix 1. (Tr. 18).
In accordance with 20 C.F.R. §§ 404.1520 and 416.920, before proceeding to
15

step four the ALJ assessed Kalenkoski’s RFC based on his review of all the relevant
evidence in Plaintiff’s case record. In so doing, the ALJ found that Kalenkoski’s
statements concerning the intensity, persistence and limiting effects of his symptoms
were not entirely credible, and supported his conclusion by citing to the clinical
observations recorded in Plaintiff’s medical treatment notes, and by relying on an RFC
assessment by a state agency medical consultant that Kalenkoski could perform a
range of light work.2 (Tr. 18-21). Though the ALJ accorded great weight to this
opinion, he gave Plaintiff the “benefit of all reasonable doubt” on the issue of his
reported dizziness and vertigo and further restricted him to sedentary work. (Tr. 20).
Thus, the ALJ concluded that Kalenkoski had the RFC to perform sedentary work as
defined in 20 C.F.R. §§404.1567(a) and 416.967(a) except that:
he can never climb ropes, ladders or scaffolds; and must avoid
2

With respect to the RFC assessment by Kevin Alleman, who the ALJ identified
as a state agency medical consultant, we note that the exact nature of Mr. Alleman’s
credentials is not clearly established in the record. Mr. Alleman did not enter a
medical consultant code at the end of his report. (Tr. 104). Further, Mr. Alleman’s
statement inaccurately reflects that there is a treating or examining source statement
regarding Plaintiff’s physical capacities in the file. Id. The record also contains an
analysis of Plaintiff’s vocational factors by Mr. Alleman – an assessment that is not
traditionally completed by a medical consultant. (Tr. 99). Neither party disputes the
ALJ’s characterization of Mr. Alleman as a state agency medical reviewer. Because
the parties have not addressed this issue, and because we find that the ALJ’s decision
independently rests upon substantial evidence wholly apart from this characterization
of Mr. Alleman, we conclude that further consideration of the matter is unnecessary.
16

unprotected heights and moving machinery. He must also avoid
concentrated exposure to environmental irritants, such as dusts, fumes,
odors and chemicals; and must avoid temperature extremes.
(Tr. 18).
At step four, the ALJ found that, based on this RFC, Kalenkoski was able to
perform his past relevant work as a security guard as generally and actually
performed, which the VE classified as a semi-skilled position, generally and actually
performed at a light exertion level.3 (Tr. 21, 89). However, the ALJ went on to
explain that, in addition to being able to perform his past relevant work, considering
Plaintiff’s age, education, work experience and RFC, there were other sedentary jobs
that existed in significant numbers in the national economy that Plaintiff could also
perform. (Tr. 21-22). In support of his alternative conclusion that Plaintiff could
perform other work, as is required to find a claimant to be “not disabled” at step five,
the ALJ cited to testimony by VE Terry that an individual with the same vocational

3

The ALJ’s conclusion that Plaintiff retained the requisite RFC to perform his
past relevant work as a security guard may seem in some respects to be at odds with
VE Terry’s testimony. (Tr. 21, 89). VE Terry testified that an individual with the
same RFC as Plaintiff (sedentary) would not be able to perform Plaintiff’s past
relevant work as a security guard (light). (Tr. 92-93). This error was not raised by
either party, nonetheless we find that it is harmless in this instance, because the ALJ
expressly went on to conclude in the alternative that Plaintiff could perform “other
work,” identified as sedentary work, and that his conclusion in that regard was both
consistent with VE Terry’s testimony, and supported by substantial evidence. (Tr. 22,
92-93).
17

factors and RFC as Plaintiff could perform the representative occupations of:
surveillance system monitor; information clerk; and customer service representative.
Id.
C.

The ALJ Properly Evaluated the Credibility of Plaintiff’s Subjective
Complaints

During his administrative hearing, and in a function report and pain
questionnaire Kalenkoski described the intensity, persistence, and limiting effects of
his various impairments. Plaintiff stated that he experiences unbearable migraine
headaches with nausea and dizziness – which occur at random approximately four
times per week and last up to two hours – lower back pain, and leg weakness.
Plaintiff testified that his symptoms are triggered by lifting, kneeling, standing, or
extreme heat or cold. At the hearing, Kalenkoski reported that he could: sit for up to
two hours at one time’ stand for up to forty-five minutes at one time; walk up to thirty
minutes at one time; and lift a 24 pack of soda. In a function report Kalenkoski
reported that, despite his impairments, he is able to care for himself, feed and walk his
dog, prepare simple meals on a daily basis, perform household chores, shop in stores,
and had no problem paying attention. At the time of the hearing Plaintiff was also
taking online courses towards his bachelor’s degree, and testified that he was able to
complete his course work by taking breaks throughout the day.
In his decision, the ALJ found that Kalenkoski’s subjective complaints were not
18

credible to the extent they were inconsistent with his RFC assessment. (Tr. 19).
Plaintiff contends that the ALJ erred by failing to provide meaningful analysis and
consideration of the required regulatory factors, and that this error renders the ALJ’s
RFC assessment defective. In particular, Kalenkoski asserts that the ALJ did not
properly consider and evaluate such factors as “the intensity, persistence in limiting
effects of the alleged physical symptoms, treating physicians’ medical opinions, prior
work record, daily activities, and precipitating and aggravating factors” in accordance
with 20 C.F.R. §§404.1529, 416.929, and SSR 96-7p when he found that the intensity,
persistence and limiting effects of Plaintiff’s arm and leg weakness, fatigue, nausea,
dizziness, and migraine pain were not as severe as Kalenkoski alleged. (Doc. 8 p. 3).
Our review of the ALJ’s decision as a whole confirms that, while the ALJ did
not engage in a protracted discussion of the factors outlined in 20 C.F.R. §§404.1529
and 416.929, he adequately consider them on the sparse factual record proffered by
Kalenkoski. Furthermore, we find that the ALJ discussed at length how the objective
medical evidence failed to justify fully crediting Plaintiff’s allegations regarding the
intensity, persistence and limiting effects of his impairments. The ALJ noted that
Kalenkoski’s migraines resulted in dizziness and nausea, and that Plaintiff told his
physician that he could barely walk because he felt “off balance.” (Tr. 19). He also
reported that Kalenkoski began to experience “periodic paralysis and intermittent
19

weakness in the bilateral lower extremities.” (Tr. 20). The ALJ observed, however,
that Plaintiff’s treating physicians recorded that Kalenkoski’s migraines and vertigo
were improving with treatment and that his reflexes, muscle strength and gait were
normal. (Tr. 19-20). Furthermore, the ALJ recounted that MRIs of Kalenkoski’s
head were normal, EMGs revealed no evidence of radiculopathy or neuropathy in
Plaintiff’s lower extremities, and diagnostic imaging of Kalenkoski’s abdomen was
also normal. Id. The ALJ also noted that, despite his alleged impairments, Plaintiff
was able to watch television, complete his online course-work, and perform most of
his homemaking duties. (Tr. 19). He further recognized that Kalenkoski’s migraines
were aggravated by extreme hot and cold temperatures, which was accounted for in
the ALJ’s RFC assessment. Id. Accordingly, we find that the ALJ properly assessed
the credibility of Plaintiff’s allegations in accordance with 20 C.F.R. §§404.1529,
416.929, and SSR 96-7p, and that the ALJ’s assessment is supported by substantial
evidence. Thus, we will not disturb the ALJ’s assessment of Kalenkoski’s credibility.
D.

The ALJ Properly Evaluated Plaintiff’s Medical Records

In his brief, Plaintiff contends that the ALJ failed to give adequate rationale
when rejecting the treating and examining medical source opinions, and that this error
rendered the ALJ’s RFC assessment defective. In support of his position, Kalenkoski
cites to no medical opinions but rather catalogues treatment notes by Drs. Hora and
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Rosen which illustrate that Plaintiff experienced daily severe headaches, (Tr. 247-65,
587-966); medical records from Dr. Rosen which reflect that Kalenkoski’s headaches
began at age ten, and resulted in fatigue, weight loss, and episodes of leg weakness,
(Tr. 365-436); treatment notes by Dr. Aslam which show that Kalenkoski was treated
for headaches in 1997, when Plaintiff was only thirteen, (Tr. 459, 477-81); records
showing that Kalenkoski underwent one month of physical therapy in an unsuccessful
attempt to alleviate his migraines, (Tr. 482-89); and notes from Geisinger Medical
Group which document Plaintiff’s symptoms (Tr. 266-336, 350-64, 490-542, 545586). In response, the Commissioner contends that none of the above-cited medical
sources are medical opinions since none of these records articulated any physical or
mental restriction or other functional deficit as a result of Plaintiff’s impairments.
As discussed above, Social Security Regulations define “medical opinions” as
“statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of [the claimant’s] impairment(s),
including [his or her] symptoms, diagnosis and prognosis, what you can still do
despite your impairment(s), and your physical or mental restrictions.” 20 C.F.R.
§§404.1527(a), 416.927(a). Thus, assuming that the above-cited portions of the
record are the “medical opinions” on the issue of symptoms severity that Kalenkoski
claims the ALJ failed to consider, our review of this evidence reveals that they do not
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comport with the regulatory definition of a “medical opinion” and are instead merely
descriptions of the onset, character, location, frequency and duration of Plaintiff’s
symptoms over time, precipitating and aggravating factors, and memorializations of
Kalenkoski’s subjective complaints, rather than statements which reflect a physician’s
judgment about the nature and severity of Plaintiff’s impairments. It is well-settled
that “the mere memorialization of a claimant’s subjective complaints in a medical
report does not elevate those symptoms to a medical opinion.” See Morris v. Barnhart,
78 F.App’x 820, 824 (3d Cir. 2003). Therefore, Kalenkoski errs when he suggests
that these matters rise to the level of treating source opinions. They do not.
Of course, this does not mean that an ALJ is free to disregard such evidence,
and, in fact the ALJ did not do so in this case. Instead, we find that the ALJ properly
considered Plaintiff’s treatment records in accordance with 20 C.F.R. §§404.1545,
416.945, which requires that the ALJ assess a claimant’s RFC based on “all the
relevant evidence in [his or her] case record,” but was not required to weigh this
evidence based on the regulatory factors outlined in 20 C.F.R. §§404.1527, 416.927.
The ALJ then properly concluded that these self-reported symptoms did not rise to the
level of a wholly disabling condition for the Plaintiff, a conclusion which we find is
consistent with the evidence.
E.

The ALJ’s Decision that Plaintiff could do “Other Work” is
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Supported by Substantial Evidence
At the hearing, the ALJ posed a series of three hypothetical questions to the
vocational expert. The ALJ based his decision on the VE’s response to the third
hypothetical question.4 Kalenkoski, however, contends that the ALJ should have
relied on the second hypothetical question.5

In his final argument Kalenkoski

contends that the ALJ’s decision that Plaintiff could do “other work” at step five is
defective because the VE’s testimony cannot be considered substantial evidence in
this case. Specifically, Kalenkoski alleges that the VE testimony relied upon by the
ALJ was elicited in response to an incomplete hypothetical question that failed to
include two of Kalenkoski’s credibly established limitations; namely, that Plaintiff

4

In his third hypothetical question, the ALJ asked the VE whether work existed
in significant numbers in the national economy for an individual with the same
vocational characteristics as Plaintiff who could perform sedentary work, and had the
same non-exertional limitations described in the ALJ’s first hypothetical – the
hypothetical person should: never climb ropes, ladders, or scaffolds; avoid
concentrated exposure to environmental irritants, such as dust, fumes, odors, gases and
chemicals; and, avoid concentrated exposure to temperature extremes. (Tr. 89-90, 9293). The VE responded that such an individual would be able to perform other work.
5

In his second hypothetical question, the ALJ asked the VE whether work
existed in significant numbers in the national economy for an individual with the same
vocational characteristics as Plaintiff who could perform light work, except that, in
addition to non-exertional limitations described in the first hypothetical question, the
hypothetical individual would also be “off task” for twenty percent of the workday,
and would require more rest periods than is provided in a usual work setting. (Tr. 91).
The ALJ responded that either of the “additional” limitations taken individually on a
consistent basis would not be tolerated by employers. Id.
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would be “off task” approximately twenty percent of each workday and would need
unscheduled breaks in excess of the normally scheduled breaks due to his migraine
headaches and leg weakness.
The ALJ is not bound to accept as true the restrictions set forth in a hypothetical
where the ALJ finds that they were unsupported by substantial evidence. Rather, the
ALJ must simply “accurately convey to the vocational expert all of a claimant's
credibly established limitations.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005), citing Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999). Therefore, in
making this assessment and framing a proper hypothetical question for a vocational
expert, “[l]imitations that are medically supported but are also contradicted by other
evidence in the record may or may not be found credible—the ALJ can choose to
credit portions of the existing evidence but ‘cannot reject evidence for no reason or
for the wrong reason’ (a principle repeated in Mason v. Shalala, 994 F.2d 1058, 1066
(3d Cir.1993); Reg. § 929(c)(4)).” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005).
Here, Plaintiff has failed to cite to any evidence, beyond the ALJ’s hypothetical,
supporting the existence of these limitations and our own review of the record reveals
little evidence of such a limitation beyond Plaintiff’s assertion that he “has to stop
quite a lot” due to his symptoms when completing his online course work. (Tr. 77).
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As was noted by the ALJ in his decision, however, Kalenkoski testified that his daily
activities include feeding and walking his dog, preparing simple meals on a daily
basis, performing household chores, shopping in stores and watching television.
Moreover, in a function report, Kalenkoski stated that he was able to pay attention,
even though he checked a box indicating that his impairments affected his ability to
concentrate. This evidence suggests a greater aptitude for concentration, and the
ability to persist in activities for intervals of time consistent with those required in the
usual work setting without additional breaks, than alleged. Accordingly, we find that
the ALJ’s decision to exclude these limitations from the RFC and hypothetical is
supported by substantial evidence, which is adequately explained in the record of
these proceedings.

IV.

Conclusion

Accordingly, for the foregoing reasons, we will affirm the decision of the
Commissioner pursuant to 42 U.S.C. § 405(g).

An order consistent with this memorandum will be entered separately.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: October 10, 2014

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