Koch v. Astrue
MEMORANDUM (Order to follow as separate docket entry).Signed by Magistrate Judge Gerald B. Cohn on 8/29/2014. (bg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT W. KOCH,
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
CASE NO. 3:12-cv-01906-GBC
(MAGISTRATE JUDGE COHN)
MEMORANDUM TO DENY PLAINTIFF’S
MEMORANDUM TO DENY PLAINTIFF’S APPEAL
I. Procedural History
On June 6, 2008, Robert W. Koch (“Plaintiff”) protectively filed an application for Title II
Social Security Disability benefits (“DIB”), with an onset date of May 13, 2008, and a date last
insured of September 30, 2008, (collectively, the “relevant period”) (Tr. 138-47).
This application was denied, and on June 16, 2010 (Tr. 87-96) and January 14, 2011 (Tr.
62-86), a hearing was held before an Administrative Law Judge (“ALJ”), where Plaintiff testified
and was represented by counsel. On March 15, 2011, the ALJ issued a decision finding that Plaintiff
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was not entitled to DIB because Plaintiff could perform reduced range of sedentary work (Tr. 16,
Finding No. 5). On August 1, 2012, the Appeals Council denied Plaintiff’s request for review,
thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-6).
On September 24, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §
405(g), to appeal the decision of the Commissioner of the Social Security Administration denying
social security benefits. Doc. 1.
On November 26, 2012, Commissioner filed an answer and administrative transcript of
proceedings. Docs. 7,8. In January and February 2013, the parties filed briefs in support. Docs.
9,10,11. On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. On
May 16, 2014, the parties consented to Magistrate Judge jurisdiction. Doc. 13.
Standard of Review
When reviewing the denial of disability benefits, we must determine whether the denial is
supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson
v. Commissioner of Social 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, 564
(1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999); Johnson, 529 F.3d at 200.
This is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.
2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only “more
than a mere scintilla” of evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). It may be
less than a preponderance. Jones, 364 F.3d at 503. Thus, if a reasonable mind might accept the
relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then
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the Acting Commissioner’s determination is supported by substantial evidence and stands. Monsour
Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
To receive disability or supplemental security benefits, Plaintiff must demonstrate 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 of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);
42 U.S.C. § 1382c(a)(3)(A).
Moreover, the Act requires further that a claimant for disability benefits must show that he
has a physical or mental impairment of such a severity that: “he is not only unable to do his previous
work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §
III. Relevant Facts in the Record
Plaintiff was born on September 23, 1965. On his alleged onset date of May 13, 2008, he was
43 years old. (Tr. 161). He has a high school diploma. (Tr. 171). At the time of his alleged onset he
was working as a drywall hanger and finisher, a heavy-duty, skilled position. (Tr. 84, 166).
As for daily activities, Plaintiff testified he does laundry, cooking, feeds the dog, mows the
lawn with a riding lawnmower, and drives. (Tr. 75-76). Plaintiff states he gets something out for
supper because his wife works. (Tr. 78). He testified that during the day he feeds the chickens,
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watches TV, and goes over to visit his parents. (Tr. 79). When the ALJ questioned whether Plaintiff
could still lift and carry things, Plaintiff testified he is no longer able to split firewood. (Tr. 76).
The ALJ questioned whether Plaintiff could have a job where he sat all day long. (Tr. 81).
Plaintiff stated he laid around all day because he didn’t have a choice in bed, but that he never sat
all day and he’s “not a sitter.” (Tr. 81). The ALJ asked whether Plaintiff could work five days a week
if he could sit or stand as needed. (Tr. 81). Plaintiff stated he supposed he could do that. (Tr. 81). The
ALJ asked if he could do it on a consistent basis, and Plaintiff stated the bleeding problems would
interfere. (Tr. 81-82).
B. Relevant Medical Evidence
Eight years prior to the relevant period, on December 16, 1999, Plaintiff presented to
Christen Mowad, M.D., with scrotal lesions (Tr. 821). He had them for over 15 years and only used
over-the-counter medication to treat them (Tr. 821). He noted that they occasionally itched, ached,
bled, and scabbed over (Tr. 821). Dr. Mowad assessed the lesions as angiokeratomas and “reassured
[Plaintiff] of the[ir] benign nature” (Tr. 821). Plaintiff “was relieved to know they were not
worrisome lesions and prefer[red] to just follow them” (Tr. 821).
Several weeks later, on January 8, 2000, Plaintiff similarly described the lesions to Michael
J. Piccuta, M.D. (Tr. 464). He also expressed his belief that new lesions continued to develop (Tr.
464). Akin to Dr. Mowad, Dr. Piccuta also diagnosed Plaintiff with angiokeratoma (Tr. 464). He
recommended that Plaintiff apply cream as needed and discharged Plaintiff from his care (Tr. 464).
Later, during the relevant period, doctors wrote on July 2, 2008, that Plaintiff had a mass, swelling,
and herpes-like lesions on his scrotum (Tr. 397). Several days later, on July 6, 2008, doctors noted
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the existence of mollusca on Plaintiff’s scrotum (Tr. 297). Plaintiff also complained of genitourinary
pain, bleeding, and other symptoms during the relevant period, but these related to the temporary
implantation of a catheter (Tr. 259-62, 296-302, 348, 367, 369, 371, 373, 396-98, 558, 839).
Two months after the conclusion of the relevant period, on December 10, 2008, Plaintiff
presented to Stephanie Y. Daniel, M.D., for evaluation of his scrotal lesions (Tr. 545). He noted that
they had persisted since childhood and multiplied as he aged (Tr. 545). He described them as
pruritic, painful, and prone to spontaneous bleeding (especially since he began blood-thinning
medication) (Tr. 545). They did not weep fluid, however (Tr. 545). On examination, Plaintiff
appeared to be healthy, pleasant, and in no distress (Tr. 546).
Finally, on December 6, 2010, Plaintiff visited Sabrina K. Dowd, M.D., for a second
evaluation of his scrotal lesions (Tr. 931). He offered similar complaints (Tr. 931). Dr. Dowd
“reviewed in detail with [Plaintiff] laser treatment for this” (Tr. 931). Plaintiff, however, “just
wanted to know what this was and d[id] not desire any treatment” (Tr. 931). Dr. Dowd informed
“him that this is a benign condition” (Tr. 931).
On April 14, 2009, more than six months after the end of the relevant period, James P.
Herberg, M.D., of Clinton Medical Associates, overtly noted Plaintiff’s COPD for the first time (Tr.
669). Prior to that, doctors collectively found during the relevant period that Plaintiff had clear lungs,
no respiratory difficulty, and / or appropriate / non-labored breath sounds (Tr. 277, 282, 285, 293,
297, 301, 349, 398). Plaintiff also routinely exhibited no crackles, rales, wheezing, or rhonchi in his
lungs (Tr. 220, 252, 277, 282, 285, 341, 558).
Plaintiff noted that in May 2008, he experienced shortness of breath (among other things)
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with physical activity (Tr. 252). But for the remainder of the relevant period he denied experiencing
this symptom (Tr. 219, 276, 285, 296). Moreover, a May 2008 chest x-ray showed no active
pulmonary disease (Tr. 283, 285, 643). A June 5, 2008 chest x-ray revealed a somewhat limited
inspiratory effort, but no suggestion of active pleural or parenchymal process (Tr. 225). On July 15,
2008, doctors noted that Plaintiff’s pulmonary system was stable (Tr. 301). An August 19, 2008 CT
scan of Plaintiff’s abdomen and pelvis showed no focal lesions, no infiltrates, and no pleural
effusions in his lung bases (Tr. 379).
3. Medical Source Opinions
In June 2008, Plaintiff’s doctor opined to the Pennsylvania Department of Public Welfare
that Plaintiff’s impairments temporarily incapacitated him (Tr. 214). Later, on March 6, 2009, Mark
Bohn, M.D., a state agency physician, determined that at Plaintiff’s date last insured, he retained the
residual functional capacity to perform a modified range of light work (Tr. 456-62).
One year later, on March 11, 2010, Dr. Herberg opined that Plaintiff could not work because
of, among other things, his COPD (Tr. 915). Nonetheless, Dr. Herberg did not mention Plaintiff’s
angiokeratoma (Tr. 915). Dr. Herberg repeated his opinion on October 21, 2010 (Tr. 929-30). Once
again, he did not mention Plaintiff’s angiokeratoma (Tr. 930).
On July 23, 2010, Richard H. Blum, M.D., an independent medical expert, reviewed the
record and determined that Plaintiff retained the residual functional capacity to perform sedentary
and some light work (Tr. 919-24, 926-27).
C. Plaintiff Hearing Testimony
Plaintiff testified that the angiokeratoma lesions his scrotum will bleed “good” at least once
a month, which means that they will bleed for about 18 hours. (Tr. 69-70). He has tried various
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methods to control the bleeding but without success. (Tr. 69-70). Like the angiokeratoma, Plaintiff’s
hemorrhoids cause him to bleed excessively. After going to the bathroom, he will have to lie on his
stomach for at least one-half hour to allow the bleeding to stop and the swelling to go down. (Tr.
71-72). He has undergone one banding procedure to remove hemorrhoids, with some relief of his
symptoms. He is expected to have to undergo at least one additional banding procedure. (Tr. 940).
According to Plaintiff, this uncontrolled bleeding is the primary reason why he cannot work; he
doubts that he can get up and go and be on time at a certain time each day. (Tr. 82). In other words,
he may be able to perform all the duties of a particular position but he cannot do them on a
consistent, reliable basis.
At the June 16, 2010 hearing, the following testimony transpired:
He was diagnosed with COPD but I don’t see any pulmonary function studies in here.
No, I think there was one but it was indeterminable so --
Okay. Because to establish that, that’s what I need. Because I don’t have any lump
Well I think his more severe disability [INAUDIBLE] --
Is the cardiac, but the --
Yeah, the cardiac.
This -- this and the OBC plays into it so that’s what I wanted to see if we had
something additional to go with that. You’re not currently seeing a pulmonologist at
all are you? No lung doctor?
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I don’t know what that is.
Do you have to use an inhaler?
I have one, yes.
Do you take something every day for your breathing?
No, you just use the inhaler when you have a problem?
Review of ALJ Decision
A five-step evaluation process is used to determine if a person is eligible for disability
benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Plummer, 186 F.3d at 428. If the
Commissioner 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, 416.920.
The Commissioner 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 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, 416.920. Before
moving on to step four in this process, the ALJ must also determine Plaintiff’s residual functional
capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).
The 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
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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 ultimate burden of proving disability within the
meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
Plaintiff Allegations of Error
ALJ Residual Functional Capacity Finding
Plaintiff contends the ALJ erred in failing to consider Plaintiff’s impairments of
angiokeratoma of the scrotum and chronic obstructive pulmonary disorder in determining Plaintiff’s
residual functional capacity. Pl. Br. at 4, Doc. 9.
The ALJ evaluated the record before determining Plaintiff’s residual functional capacity.
a. ALJ Review and Findings
“Through the date last insured, the claimant has the following severe impairments: coronary
artery disease, hypertension, hemorrhoids, and status post rotator cuff repair. 20 C.F.R. §
404.1520(c).” (Tr. 15).
“After careful consideration of the entire record, the [ALJ] find[s] that, through the date last
insured, the claimant had the residual functional capacity to perform sedentary work as defined in
20 C.F.R. § 404.1567(a) except the claimant must be allowed the opportunity to alternate between
sitting and standing at least every 15 minutes. He is limited to occasional bending, balancing,
stooping, kneeling, crouching, crawling, or climbing of stairs. He must avoid ladders, ropes, and
scaffolds. He must avoid working at unprotected heights and around dangerous machinery.” (Tr. 16)
“The claimant has a number of medical problems, including coronary artery disease,
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hypertension, hemorrhoids, and status post rotator cuff repair. These impairments are severe insofar
as they limit the claimant to a range of sedentary work as set forth above. However, they are not so
severe as to be completely disabling. The claimant is capable of doing a range of sedentary work on
a sustained and consistent basis despite the limitations arising as a result of his impairments.” (Tr.
16) (emphasis added).
“The claimant alleges disability due to heart disease. He alleges that he has constant pain and
fatigue. He alleges that his chest pain is exacerbated with exertion. He alleges that he gets dizzy
when he exerts himself. He alleges difficulties lifting, squatting, bending, standing, walking and
kneeling. He alleges that he has difficulties concentrating and completing tasks due to fatigue.” (Tr.
“At the hearing, the claimant testified that he suffers from hemorrhoids that cause him severe
pain. He testified that he experiences significant bleeding with every bowel movement. He testified
that he often has difficulties sitting and sometimes needs to lie on his stomach until his swelling goes
down (Hearing Testimony). The claimant testified that he also experiences left arm pain as a result
of his previous work as a drywall finisher.” (Tr. 17) (emphasis added).
“The treatment notes of the claimant’s family physician, James B. Herberg, M.D. show
normal examinations with no significant complaints other than some edema of the right lower
extremity and some weight gain due to the claimant’s quitting smoking. Dr. Herberg continues to
prescribe medication to control the claimant’s hypertension.” (Tr. 17-18) (emphasis added).
“In terms of the claimant’s hemorrhoids, the treatment records confirm that, in December of
2010, the claimant had been diagnosed with a prolapsing hemorrhoid for which his treating doctors
recommended rubber banding surgery. The claimant testified that he underwent this procedure but
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that he continues to bleed with bowel movements and continues to experience significant pain and
discomfort. However, the medical evidence of record simply does not document the chronic, severe
pain and limitations that the claimant described at the hearing. In fact, the records of the claimant’s
family physician do not mention any continuing hemorrhoid related difficulties. Nevertheless, in
including a sit / stand option in the above residual functional capacity, the [ALJ] has accommodated
the claimant’s subjective complaints with regard to this impairment.” (Tr. 18) (emphasis added).
“Just as the above treatment records do not support a finding of disability, the claimant’s
activities of daily living indicate that the claimant is capable of performing a range of sedentary
work. The claimant is able to attend to his own personal needs, shop for food, and pay bills. While
the claimant testified that he couldn’t work in a seated job because he is not a ‘sitter,’ he supposed
that he would be able to maintain some form of employment if he were given a sit / stand option
(Hearing Testimony).” (Tr. 18) (emphasis added).
“As for the opinion evidence, the [ALJ] submitted the entire record to Dr. Blum, an impartial
medical expert, in order to obtain his professional opinion with regard to this claim. Based upon his
review of the entire record, Dr. Blum concluded that, based upon the claimant’s coronary artery
disease with angina pectoris on heavy lifting, the claimant is capable of lifting up to 20 pounds on
an occasional basis but carrying only ten pounds occasionally. Dr. Blum also placed limitations on
the claimant’s ability to sit / stand at one time without interruption. As Dr. Blum is a highly qualified
physician who is also an expert in Social Security disability evaluation, the [ALJ] gives significant
weight to his opinions.” (Tr. 18) (emphasis added).
“The [ALJ] has considered the opinions offered by claimant’s family physician, Dr. Herberg,
who indicates that the claimant is totally disabled due to coronary artery disease, hypertension, and
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mild obesity. The [ALJ] gives little weight to this opinion as it is conclusory in nature and
unsupported by the medical evidence of record, including his own treatment records.” (Tr. 18).
“The [ALJ] has also considered and rejected the opinions offered by claimant’s treating
physician in a form submitted to the Department of Public Welfare, wherein claimant’s physician
indicated that the claimant was temporarily disabled from June 19, 2008 to June 19, 2009. This was
a form submitted to the Department of Public Welfare and does not contain any medical support for
this opinion. Furthermore, the issue of disability is an issue reserved to the Commissioner. Lastly,
and as indicated above, the claimant’s physical examinations would not support a finding of total
disability.” (Tr. 18-19).
“In sum, the above residual functional capacity assessment is supported by the medical
evidence of record, including the treatment records and the opinion of Dr. Blum. In deference to the
claimant’s allegations regarding the severe impairments, the [ALJ] placed even greater limitations
than those imposed by Dr. Blum.” (Tr. 19).
b. Case Law and Analysis
Plaintiff contends the ALJ erred in failing to properly consider Plaintiff’s angiokeratoma of
the scrotum and chronic obstructive pulmonary disorder in determining Plaintiff’s residual functional
capacity. Pl. Br. at 4, Doc. 9. From the review of the record, the ALJ throughly evaluated Plaintiff’s
impairments; medical history; hearing testimony; objective medical evidence that does not document
the chronic, severe pain and limitations Plaintiff described at the hearing; ability to perform daily
activities; the evidence that none of the treating sources indicated Plaintiff could not work due to
angiokeratoma of the scrotum or COPD; opinion evidence; credibility; and ability to perform
sedentary work with a sit / stand option.
Plaintiff states the ALJ did not consider the angiokeratoma of the scrotum or COPD in the
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decision. Pl. Reply at 1, Doc. 11. However, the ALJ clearly took testimony on both impairments.
Plaintiff testified he bleeds once a month for eighteen hours, and the ALJ noted Plaintiff was
diagnosed with COPD but did not have any pulmonary function studies or a pulmonologist / lung
doctor. (See Tr. 80, 91). In addition, there was no medical evidence to support disability during the
relevant period based on angiokeratoma of the scrotum or COPD. Finally, the ALJ made allowances
for Plaintiff’s cardiac condition and testimony as to bleeding by limiting him to sedentary work with
a sit / stand option (Tr. 81).
The weight afforded to any medical opinion is dependent on a variety of factors, including
the degree to which the opinion is supported by relevant evidence and consistent with the record as
a whole. 20 C.F.R. § 404.1527(c)(3)-(4). Generally, the more consistent an opinion is with the record
as a whole, the more weight we will give to that opinion. 20 C.F.R. § 404.1527(c)(4). A treating
physician’s opinion does not warrant controlling weight under the regulations unless it is well
supported by clinical and laboratory diagnostic findings and consistent with other substantial
evidence. 20 C.F.R. § 404.1527(c)(2); Plummer, 186 F.3d at 429. If a treating source’s opinion is
not entitled to controlling weight, the factors outlined in 20 C.F.R. § 404.1527(c)(2) are used to
determine the weight to give the opinion. Id. The more a treating source presents medical signs and
laboratory findings to support his medical opinion, the more weight it is entitled. Id. Likewise, the
more consistent a treating physician’s opinion is with the record as a whole, the more weight it
should be afforded. Id. The Commissioner is not bound by a treating physician’s opinion, and may
reject it, if there is a lack of clinical data supporting it, or if there is contrary medical evidence.
Lyons-Timmons v. Barnhart, 147 F. App’x 313, 316 (3d Cir. 2005).
The ALJ, not the treating or examining physician, must make the disability and residual
functional capacity determination. 20 C.F.R. § 404.1527(d)(1)-(2); Chandler v. Comm’r of Soc. Sec.,
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667 F.3d 356 (3d Cir. 2011). “The law is clear that the opinion of a treating physician does not bind
the ALJ on the issue of functional capacity.” Chandler, 667 F.3d at 361; Coleman v. Astrue, 2012
WL 3835403, at *2 (3d Cir. Sept. 5, 2012) (holding that ALJ may choose non-examining physician
opinion over treating physician opinion as long as medical evidence not rejected for wrong reason
or no reason).
The case law in this circuit makes clear that physician opinions are not binding upon an ALJ,
and that an ALJ is free to reject a medical source’s conclusions. Chandler, 667 F.3d 356 at 361. In
so doing, however, the ALJ must indicate why evidence was rejected, so that a reviewing court can
determine whether “significant probative evidence was not credited or simply ignored.” Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir.1981). Mistick v. Colvin, No. 12-cv-1031, 2013 WL 5288261
(W.D. Pa. Sept. 18, 2013).
In Chandler v. Comm’r of Soc. Sec., 667 F.3d at 362, the Third Circuit held that the district
court had erred in concluding that the “ALJ had reached its decision based on its own improper lay
opinion regarding medical evidence.” Id. “The ALJ– not treating or examining physicians or State
agency consultants – must make the ultimate disability and RFC determinations.” Id. at 361 (citing
20 C.F.R. 404.1527(e)(1), 404.1546(c)).
The record evidence reveals that during the four-and-a-half month relevant period from the
onset date of May 13, 2008, to the date last insured of September 30, 2008, neither Plaintiff’s
angiokeratoma nor his COPD more than minimally affected his ability to perform basic work
Plaintiff contends his primary care physician consistently diagnoses him with chronic
obstructive pulmonary disorder, secondary to smoking, and he uses an inhaler four times per day.
(Tr. 355, 915, 929-30) (Pl. Br. at 7, Doc. 9). However, Plaintiff points to records from February 7,
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2009 (inhaler usage) and March 11, 2010 and October 21, 2010 (COPD diagnosis from smoking)
(Tr. 915, 929-30), which were after the relevant period.
As for the angiokeratoma, Plaintiff admits he was reassured the condition was benign and
was told there were not many treatment options (Tr. 361, 415-17, 464, 821, 931) (Pl. Br. at 6, Doc.
9). One doctor recommended an over-the-counter ointment to control itching and another said
surgery could be used to remove the largest of the lesions. (Tr. 415-17, 464) (Pl. Br. at 6, Doc. 9).
In addition, no doctor opined that Plaintiff’s angiokeratoma barred him from working during
the relevant disability period (Tr. 214-15, 456-62, 915, 919-24, 926-27, 929-30), and no doctor
reported Plaintiff’s COPD until April 14, 2009 (Tr. 669), more than six months after the end of the
Plaintiff contends the ALJ’s failure to identify the angiokeratoma of the scrotum or COPD
as a “severe” impairment affects the remaining analysis. Pl. Br. at 7, Doc. 9. However, even though
the ALJ did not classify the impairments as “severe,” he accounted the credibly established
limitations in the residual functional capacity.
“[Plaintiff] contends that the ALJ erred in failing to determine whether his obesity was a
“severe” impairment, and in failing to consider that impairment in assessing his residual functional
capacity. As an initial matter, [Plaintiff] was not denied benefits at the second step of the sequential
evaluation process. McCrea v. Commissioner of Social Security, 370 F.3d 357, 361 (3d Cir. 2004)
(remarking that “step two is to be rarely utilized as [a] basis for the denial of benefits”). Since the
ALJ determined that [Plaintiff] had “severe” impairments, this case proceeded through the remaining
steps of the process. The assessment of a claimant’s residual functional capacity must account for
both “severe” and “nonsevere” impairments. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). Where at
least one impairment is found to be “severe” and the limitations resulting from the claimant’s
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remaining impairments are properly considered, an error committed at the second step of the process
with respect to one of those other impairments is inconsequential. Lewis v. Astrue, 498 F.3d 909,
911 (9th Cir. 2007); Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir.
1987).” See McCleary v. Astrue, No. 10–1116, 2011 WL 4345892, at *9 (W.D. Pa. Sept. 15, 2011).
Similarly in this case, the ALJ found Plaintiff had other severe impairments, namely bleeding
from hemorrhoids, hypertension, and coronary artery disease, and the decision proceeded through
the remaining steps in the disability process. (Tr. 15, 17).
Even if the ALJ should have considered the angiokeratoma of the scrotum or COPD as a
severe impairment, the error was harmless and would not have altered the result. The ALJ allocated
for a sit / stand option to accommodate Plaintiff’s allegations of bleeding and sedentary work for the
history of cardiac problems.
The burden lies with Plaintiff to demonstrate harm from such error that would have changed
the ALJ’s decision, but he has not done so here. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009);
see also Molina v. Astrue, 674 F.3d 1104, 1111, 1115-22 (9th Cir. 2012). “No principle of
administrative law ‘requires that we convert judicial review of agency action into a ping-pong game’
in search of the perfect decision.” Coy v. Astrue, No. 08-1372, 2009 WL 2043491, at *14 (W.D. Pa.
July 8, 2009) (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)); see also Fisher
v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”).
When evaluating the credibility of an individual’s statements, the adjudicator must consider
the entire case record and give specific reasons for the weight given to the individual’s statements.
SSR 96–7p, 61 Fed. Reg. 34483 (July 2, 1996). In particular, an ALJ should consider the following
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factors: (1) the plaintiff’s daily activities; (2) the duration, frequency and intensity of the plaintiff’s
symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication for
relief of the symptoms; (6) any measures the plaintiff uses or has used to relieve the symptoms; (7)
the plaintiff’s prior work record; and (8) the plaintiff’s demeanor during the hearing. See 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3); Jury v. Colvin, No. 3:12-cv-2002, 2014 WL 1028439 (M.D. Pa.
Mar. 14, 2014). When the Court reviews the ALJ’s decision, “an 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 Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997) (citing 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.”)). 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.
“[T]he ALJ cannot accommodate limitations which do not exist, or which cannot be found
in the medical record. No specific functional limitations were provided by any of Plaintiff’s medical
sources with respect to her carpal tunnel syndrome, and the ALJ limited the amount of weight
Plaintiff could lift with her arms in his RFC and hypothetical. The Court finds that the ALJ’s finding
was supported by substantial evidence and will not remand for further consideration of Plaintiff’s
. . . carpal tunnel syndrome.” Rybarik v. Astrue, No. 12–515, 2012 WL 5906162, at *6 (W.D. Pa.
Nov. 26, 2012).
“[T]he ALJ is not bound to accept every limitation that is found by a medical professional,
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but rather only the ones that she finds are credibly established by the record. See Salles v. Comm’r
of Soc. Sec., 229 Fed. Appx. 140, 147 (3d Cir. 2007). Contrary to Plaintiff’s assertion, the ALJ did
not err by incorporating into her RFC finding only those limitations which she found to be credibly
established by the objective medical evidence and the Court finds that the ALJ’s RFC determination
as well as her ensuing hypothetical to the vocational expert both enjoy the support of substantial
record evidence. Finally, the Court finds that the ALJ evaluated the medical opinion evidence
properly and in accordance with the applicable rules and regulations and that substantial record
evidence supports her evaluation. The ALJ gave a detailed explanation for why the medical source
statements from the mental health providers were not given controlling weight the ALJ discussed
at length her justification for why the medical source statements from Dr. Jahangeer and Ms. Walker
were inconsistent with and contradicted by the other medical evidence of record, including their own
notes and prior findings. The Court finds that the ALJ discharged her duty because she (i)
demonstrated her consideration of all the relevant medical evidence, (ii) addressed the contradictory
evidence in the record which conflicted with her findings, and (iii) explained why that contrary
evidence was rejected or not given controlling weight. See Cotter, 642 F.2d at 705. Indeed, the
overarching theme of the ALJ’s decision was the complete lack of objective medical evidence which
corroborated or even tended to support Plaintiff’s complaints of severely disabling impairments and
the Court agrees with the ALJ’s finding that such corroborating evidence was woefully lacking in
the record. Plaintiff’s subjective complaints were corroborated only by her own self-reports,
which—for the reasons discussed by the ALJ—were not particularly credible. To that end, the Court
finds that the ALJ’s credibility determination is well-supported by the record and that Plaintiff’s
arguments to the contrary are completely unpersuasive, particularly given the minimal treatment
record, the inconsistencies in the record that were highlighted and discussed by the ALJ . . .
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Accordingly, the Court concludes that substantial record evidence supports the ALJ’s determination
of non-disability.” Stewart v. Astrue, No. 13–73, 2014 WL 29035, at *1, n.1 (W.D. Pa. Jan. 2, 2014).
Similarly in this case, the record does not support Plaintiff’s assertions of disabling severity.
Plaintiff’s contentions of error are inconsistent with the objective evidence and activities of daily
living. From the ALJ’s extensive review, substantial evidence supports the weight accorded to the
allegations and opinions of record.
Thus, the ALJ’s RFC finding includes only “credibly established limitations” and not all
impairments alleged by claimant, Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).
Accordingly, the ALJ relied on the record and testimony in determining Plaintiff’s residual
functional capacity, and the findings are supported by substantial evidence.
Therefore, the Court finds that the ALJ made the required specific findings of fact in
determining whether Plaintiff met the criteria for disability, and the findings were supported by
substantial evidence. 42 U.S.C. §§ 405(g), 1382c; Brown, 845 F.2d at 1213; Johnson, 529 F.3d at
200; Pierce, 487 U.S. at 552; Hartranft, 181 F.3d at 360; Plummer, 186 F.3d at 427; Jones, 364 F.3d
Substantial evidence is less than a preponderance of the evidence, but more than a mere
scintilla of evidence. It does not mean a large or significant amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson
v. Perales, 402 U.S. 389, 401 (1971).
Thus, if a reasonable mind might accept the relevant evidence as adequate to support the
conclusion reached by the Acting Commissioner, then the Acting Commissioner’s determination is
supported by substantial evidence and stands. Monsour Med. Ctr., 806 F.2d at 1190. Here, a
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reasonable mind might accept the evidence as adequate, and the Court will affirm the decision of the
Commissioner pursuant to 42 U.S.C. § 405(g).
An appropriate order in accordance with this memorandum to deny Plaintiff’s appeal will
Dated: August 29, 2014
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE
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