Hartzell v. Colvin

Filing 17

MEMORANDUM (Order to follow as separate docket entry)Signed by Magistrate Judge Gerald B. Cohn on 09/30/15. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CASE NO. 3:14-cv-00936- GBC

AUTUMN HARTZELL
Plaintiff,

(MAGISTRATE JUDGE COHN)

v.
MEMORANDUM
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Docs. 1, 9, 10, 11, 12
MEMORANDUM

I.

Procedural Background

On March 22, 2011, Plaintiff filed an application for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) under the Social
Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”). (Tr. 125-41). On July
14, 2011, the Bureau of Disability Determination denied these applications (Tr. 5673), and Plaintiff filed a request for a hearing on July 29, 2011. (Tr. 84-85). On
October 19, 2012, an ALJ held a hearing at which Plaintiff—who was represented
by an attorney—and a vocational expert (“VE”) appeared and testified. (Tr. 26-55).
On November 15, 2012, the ALJ found that Plaintiff was not disabled and not
entitled to benefits. (Tr. 9-25). On December 6, 2012, Plaintiff filed a request for
review with the Appeals Council (Tr. 7-8), which the Appeals denied on March 26,
2014, thereby affirming the decision of the ALJ as the “final decision” of the
Page 1 of 21

Commissioner. (Tr. 1-6).
On May 15, 2014, Plaintiff filed the above-captioned action pursuant to 42
U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On July 31,
2014, the Commissioner filed an answer and administrative transcript of
proceedings. (Docs. 9, 10). On September 10, 2014, Plaintiff filed a brief in
support of his appeal (“Pl. Brief”). (Doc. 11). On October 1, 2014, Defendant filed
a brief in response (“Def. Brief”). (Doc. 12). On May 4, 2015, the parties
consented to transfer of this case to the undersigned for adjudication. (Doc. 14, 15,
16). The matter is now ripe for review.
II.

Standard of Review

When reviewing the denial of disability benefits, the Court must determine
whether substantial evidence supports the denial. Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988). Substantial evidence is a deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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, 565 (1988) (quoting Consol. Edison Co. of New York v.
N.L.R.B., 305 U.S. 197, 229 (1938)). In other words, substantial evidence requires
“more than a mere scintilla” but is “less than a preponderance.” Jesurum v. Sec’y
Page 2 of 21

of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
III.

Sequential Evaluation Process

To receive disability or supplemental security benefits, a claimant 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). The Act requires that a claimant for disability benefits 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. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a
person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds
that a Plaintiff is disabled or not disabled at any point in the sequence, review does
not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially
determine: (1) whether the claimant is engaged in substantial gainful activity; (2)
Page 3 of 21

whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart
P, Appendix 1 (“Listing”); (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
claimant bears the burden of proof at steps one through four. If the claimant
satisfies this burden, then the Commissioner must show at step five 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 claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
IV. Relevant Facts in the Record
Plaintiff was born on August 14, 1982 and was classified by the Regulations
as a younger individual through the date of the ALJ decision. (Tr. 20). 20 C.F.R. §
404.1563. Plaintiff has at least a high school education and past relevant work as a
nurse assistant, cashier, and claims clerk. (Tr. 20, 51).
Page 4 of 21

Plaintiff and her boyfriend asserted that she was unable to work due to
depression, anger issues, and explosive behavior. (Tr. 29-53, 191-211). They
reported fairly limited activities of daily living. Id. At the hearing, she testified that
she could not work because of the medicine she was on and her explosive
behavior. (Tr. 30). She explained that her medications made her sleepy. (Tr. 3132). She testified that she left her past work because she “wasn’t getting paid right”
and her checks were delayed. (Tr. 34). She testified that she left another job when
it was sold. (Tr. 36). She indicated that she left another job because her “exhusband made [her].” (Tr. 38). She testified that she had not had any mental health
hospitalizations since January of 2011 and was able to read books, do dishes, and
vacuum. (Tr. 47).
In June of 2010, Plaintiff reported that she was “not depressed” but would
like something for “her nerves” because she was a stay-at-home mother with five
children. (Tr. 286). In a form submitted to the Pennsylvania Department of
welfare, she stated that she voluntarily quit working in October of 2010 because
her employer wanted her to commit Medicare fraud. (Tr. 232). Her employer
responded that she walked out “stating she 'felt like putting her hands around the
neck' of a coworker.” (Tr. 232).
Plaintiff underwent a nine-day psychiatric hospitalization in January 2011
for suicidal ideation. (Tr. 250-54). On discharge she was diagnosed with probable
Page 5 of 21

Bipolar II Disorder and Intermittent Explosive Disorder and assessed to have a
Global Assessment of Functioning (“GAF) of 60 (Tr. 254).
On March 1, 2011, she established outpatient psychiatric care with Dr.
Taswir. (Tr. 261). Examination indicated only constricted affect and irritable
mood. (Tr. 261-62). He diagnosed bipolar disorder and personality disorder, not
otherwise specified, and assessed a GAF of 50. (Tr. 261-62). Treatment through
July of 2011 indicated GAF scores of 50. (Tr. 317-19). At subsequent every visit,
Plaintiff’s speech, mood, stream of thought, content of thought, and executive
function were normal. (Tr. 317-19). Her affect was alternatively noted to be
restricted and normal. Id.
On July 14, 2011, Dr. Richard Small, Ph.D., reviewed Plaintiff’s file and
authored a medical opinion that Plaintiff could perform the basic mental demands
of competitive work. (Tr. 69).
On August 16, 2011, Dr. Taswir authored a medical opinion. (Tr. 332).
(Tr. 352). He identified symptoms of anhedonia, feelings of guilt or worthlessness,
mood disturbance, persistent disturbances of mood or affect, emotional withdrawal
or isolation, emotional lability, flight of ideas and sleep disturbance (Tr. 329). He
also cited Plaintiff’s impaired coping skills and social skills and limited frustration
tolerance (Tr. 331). He opined that Plaintiff was unable to meet competitive
standards in maintaining attention for a two hour period, maintaining regular
Page 6 of 21

attendance and being punctual within customary usually strict tolerances,
sustaining an ordinary routine without special supervision, making simple work
related decisions, performing at a consistent pace without an unreasonable number
and length of rest periods, accepting instructions and responding appropriately to
criticism from supervisors, interacting appropriately with the general public, and
handling semiskilled or skilled work. (Tr. 330-31). He opined that Plaintiff had no
useful ability to function in working in coordination with or proximity to others
without being unduly distracted, completing a normal work day and work week
without interruptions from psychologically based symptoms, getting along with
coworkers or peers without unduly distracting them or exhibiting behavioral
extremes and dealing with normal work stress. (Tr. 330). He opined that Plaintiff
would be absent from work more than four days a month and that her impairment
would last at least twelve months. (Tr. 331). On October 21, 2011, he wrote that
she was “unable to work at this time due to her bipolar disorder.” (Tr. 321).
On July 29, 2011, Plaintiff’s counselor, Ms. Fox, also authored an opinion.
(Tr. 323-25). She identified identical symptoms as Dr. Taswir’s opinion. (Tr. 324).
She identified work-preclusive mental limitations. (Tr. 325). She opined that
Plaintiff would be absent from work more than four times per month. (Tr. 326).
She noted that Plaintiff reacted with anger, frustration, and hostility to daily
stressors and “continue[d] to struggle with bouts of severe depressive symptoms
Page 7 of 21

that significantly affect her energy level, her motivation level and her overall well
being.” (Tr. Pg. 323, 327).She indicated that Plaintiff’s GAF had increased to 55.
(Tr. 323).
In September of 2011, Plaintiff received psychiatric clearance to take
Chantix. (Tr. 295). She denied psychiatric symptoms and stated that her mood was
stable. (Tr. 295).
By October of 2011, within ten months of Plaintiff’s onset date, Dr. Taswir
had also increased her GAF to 55. (Tr. 316). Speech, affect, mood, stream of
thought, content of thought, and cognitive function were normal. (Tr. 316). He
noted that Plaintiff was “doing well” and her mood was “stable.” (Tr. 316).
Plaintiff subsequently reported being frustrated by the initial denial of benefits
under the Act, but mental status examination remained entirely normal and her
GAF remained at 55. (Tr. 315). By December of 2011, Plaintiff reported that she
had “no issues” and her GAF was increased further to 60. (Tr. 314). Plaintiff’s
GAF remained a 60 in February of 2012, her mental status examination was
normal, and Dr. Taswir noted that she was “doing well.” (Tr. 313).
At a primary care visit for headaches in January of 2012, Plaintiff denied
constitutional and other neurologic symptoms. (Tr. 297). No mention of psychiatric
complaints appears in a primary care visit from February of 2012. (Tr. 300).

Page 8 of 21

On November 15, 2012, the ALJ issued the decision. (Tr. 21). At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since
January 26, 2011, the alleged onset date. (Tr. 14). At step two, the ALJ found that
Plaintiff’s bipolar disorder, depression, and intermittent explosive disorder were
medically determinable and severe. (Tr. 14). At step three, the ALJ found that
Plaintiff did not meet or equal a Listing. (Tr. 15). The ALJ found that Plaintiff had
the RFC to:
[P]erform a full range of work at all exertional levels except the claimant
must avoid hazards such as unprotected heights and machinery moving
about on the jobsite floor; must avoid more than occasional changes to a
routine work setting; must avoid more than occasional interaction with the
public, coworkers, and supervisors; must not be required to work as part of a
team; and is expected to have the ability to sustain attention and
concentration for no more than 90% of a normal workday
(Tr. 16).
A step four, the ALJ found that Plaintiff could not perform past relevant
work. (Tr. 19). At step five, in accordance with the VE testimony, the ALJ found
that Plaintiff could perform other work in the national economy. (Tr. 20).
Consequently, the ALJ found that Plaintiff was not disabled and not entitled to
benefits. (Tr. 21).
V.

Plaintiff Allegations of Error

A. The ALJ’s assignment of weight to the medical opinions
Plaintiff asserts that the ALJ erred in failing to afford controlling weight to
Page 9 of 21

her treating source opinions. Plaintiff’s treating sources opined that she had workpreclusive mental impairments. (Tr. 329-35). A state agency physician opined that
she could perform the basic mental demands of competitive work. (Tr. 60).
Plaintiff also asserts that the ALJ failed to give sufficient explanation for the
assignment of weight to the medical opinions. (Pl. Brief at 10-12).
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and prognosis, what you
can still do despite impairment(s), and your physical or mental restrictions.” 20
C.F.R. § 404.1527(a)(2). Opinions can come from various sources, including
treating physicians, examining physicians, and non-examining physicians. 20
C.F.R. §§ 404.1527(c)(1)-(2). “Regardless of its source, [the Commissioner] will
evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c). If a treating
source is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
your case record, we will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2).
When the Commissioner does not give a treating “opinion controlling
weight under paragraph (c)(2) of this section, [the Commissioner] consider[s] all of
the following factors in deciding the weight we give to any medical opinion.” 20
C.F.R. § 404.1527(c). Specifically, “[w]hen [the Commissioner does] not give the
Page 10 of 21

treating source's opinion controlling weight, [the Commissioner] appl[ies] the
factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of [Section 404.1527], as well as
the factors in paragraphs (c)(3) through (c)(6) of [Section 404.1527] in determining
the weight to give the opinion.” 20 C.F.R. § 404.1527(c)(2).
Section 404.1527(c)(2)(i) provides that, “the longer a treating source has
treated you and the more times you have been seen by a treating source, the more
weight we will give to the source's medical opinion.” Id. Section 404.1527(c)(2)(ii)
provides that “more knowledge a treating source has about your impairment(s) the
more weight we will give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent of examinations and
testing the source has performed or ordered from specialists and independent
laboratories.” Id. Section 404.1527(c)(1) provides that, “[g]enerally, [the
Commissioner] give[s] more weight to the opinion of a source who has examined
you than to the opinion of a source who has not examined you.” Id.
Pursuant to 20 C.F.R. §404.1527(c)(3), “[t]he more a medical source
presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion” and “[t]he better an
explanation a source provides for an opinion, the more weight we will give that
opinion.” Pursuant to 20 C.F.R. §404.1527(c)(4), “the more consistent an opinion
is with the record as a whole, the more weight we will give to that opinion.”
Page 11 of 21

Pursuant to 20 C.F.R. §404.1527(c)(5), more weight may be assigned to
specialists, and 20 C.F.R. §404.1527(c)(6) allows consideration of other factors
which “tend to support or contradict the opinion.”
A non-treating opinion may be assigned more weight than a treating opinion.
See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (state agency physicians are
“highly qualified” and “experts” in social security disability evaluation.). The
Regulations provide that, “[w]hen the treating source has seen you a number of
times and long enough to have obtained a longitudinal picture of your impairment,
we will give the source's opinion more weight than we would give it if it were from
a nontreating source.” 20 C.F.R. § 404.1527(c)(2)(i) (emphasis added). Thus, when
a treating source opinion is not given controlling weight, it does not trump all
opinions from a nontreating source. It merely receives more weight than it
otherwise would if it were authored by a non-treating physician. However, if the
examining or non-examining opinion is better supported, more consistent with
evidence, or authored by a specialist, then it may be entitled to greater weight than
a treating opinion. As the Third Circuit explained in Jones v. Sullivan, 954 F.2d
125 (3d Cir. 1991):
Jones next argues that the law of this Circuit required the ALJ to
adopt the judgment of Jones's treating physicians, who opined that
Jones's illnesses prevent him from maintaining gainful employment
and cause him severe pain. Jones claims that the ALJ substituted the
ALJ's own lay observations of Jones's condition for the findings of
Jones's treating physicians, thus violating Frankenfield v. Bowen, 861
Page 12 of 21

F.2d 405 (3d Cir.1988). In Frankenfield, we established that, in the
absence of contradictory medical evidence, an ALJ in a social security
disability case must accept the medical judgment of a treating
physician. However, the opinions offered by Jones's treating
physicians were conclusory and unsupported by the medical evidence,
and failed to explain why ailments that had plagued Jones for decades
did not incapacitate him until 1987. Further, these opinions were not
uncontradicted. After Jones applied for reconsideration of the initial
rejection of his claim, two physicians in the state agency evaluated the
medical findings of Jones's treating physicians and concluded that
those findings did not reveal any condition that would preclude
gainful employment. In light of such conflicting and internally
contradictory evidence, the ALJ correctly determined that the
opinions of Jones's treating physicians were not controlling. See, e.g.,
Wright v. Sullivan, 900 F.2d 675, 683 (3d Cir.1990); Newhouse v.
Heckler, 753 F.2d 283, 286 (3d Cir.1985).
Id. at 128-29. See also Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (An
ALJ “may choose whom to credit” when a treating physician opinion conflicts
with a non-treating physician opinion, and may “reject ‘a treating physician’s
opinion outright…on the basis of contradictory medical evidence.’”) (quoting
Plummer, 186 F.3d at 429); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361
(3d Cir. 2011) (“Although treating and examining physician opinions often deserve
more weight than the opinions of doctors who review records, see, e.g., 20 C.F.R.
§ 404.1527(d)(1)-(2), ‘[t]he law is clear ... that the opinion of a treating physician
does not bind the ALJ on the issue of functional capacity’”) (quoting Brown v.
Astrue, 649 F.3d 193, 197 n. 2 (3d Cir.2011)).
Here, Dr. Taswir’s opinion and Ms. Fox’s statement were not entitled to
controlling weight because they were contradicted by Dr. Small’s opinion. (Tr. 69).
Page 13 of 21

They were also contradicted by the subsequent assessment of GAFs of 55 and 60,
notation that Plaintiff’s mood was stable and she was doing well, and her
psychiatric clearance for Chantix, when she denied psychiatric complaints. Supra.
The ALJ explained that Dr. Taswir’s October 2011 opinion was inconsistent
with later treatment notes and wad on an issue reserved to the commissioner. (Tr.
18). The ALJ explained that his August of 2011 opinion was rendered “within 8
months of the claimant's alleged onset date and two months before the claimant's
noted improvements in overall functioning and response to medications.” (Tr. 18).
The ALJ explained that Ms. Fox’s opinion was inconsistent with the later treatment
notes, was not an acceptable medical source, and did not furnish any medical
records to provide support for her opinion. (Tr. 18). As discussed above, the ALJ
cited to contradictory medical evidence in the form of Dr. Small’s opinion. (Tr.
69). Plaintiff does not sufficiently address the ALJ’s prime contention, which is
that her providers opined that she no longer suffered serious impairments within
ten months of her onset date, as evidence by her GAF scores and treatment record.
(Pl. Brief). These are sufficient reasons to assign less weight to her treating
opinions. In Griffin, the Court held that:
[T]he ALJ reasonably determined that Dr. James's opinion was
inconsistent with other substantial medical evidence in the record. As
an initial matter, Dr. James's conclusion was inconsistent with his own
treatment notes, which confirmed Griffin's improved, post-operative
cardiac function, and inconsistent with other medical evidence in the
record, which indicated that Griffin's heart rate and blood pressure
Page 14 of 21

were normal. Further, imaging techniques did not reveal an enlarged
heart, which would have limited Griffin's ability to exert herself
physically. Finally, as part of the evidence inconsistent with Dr.
James's opinion, the ALJ considered an assessment completed by Dr.
Finch, which, unlike that of Dr. James, addressed the issue of
functional limitations. After reviewing the medical evidence in the
record, Dr. Finch concluded that Griffin retained the capacity to
perform “light work.” (App.272–77.) Thus, given this substantial
evidence indicating that Griffin retained the capacity for light work
such as bookkeeping, the ALJ did not err in declining to assign
controlling weight to Dr. James's opinion.
Griffin v. Comm'r Soc. Sec., 305 Fed.Appx. 886, 891-92 (3d Cir. 2009). See also
Plummer v. Apfel, 186 F.3d 422, 430 (3d Cir. 1999) (ALJ properly rejected
physician’s opinion because it was inconsistent with his treatment record, which
indicated less limitations that the opinion and that claimant’s condition had
“improved”); cf. Brownawell v. Comm'r Of Soc. Sec., 554 F.3d 352, 356 (3d Cir.
2008) (treatment notes should not be used to discount a treating physician’s
opinion where treatment notes did not address functional ability).
Plaintiff asserts that the ALJ failed to consider various factors under the
Regulations, specifically Dr. Taswir’s treating relationship and his status as a
specialist. (Pl. Brief at 10-11). Plaintiff does not cite any evidence that the ALJ
failed to “consider” this factor. (Pl. Brief). Plaintiff also asserts that the ALJ failed
to cite contradictory medical evidence. (Pl. Brief at 12).
The Regulations require the ALJ to “consider” each factor in assigning
weight to the medical opinions. 20 C.F.R. §404.1527(c). However, “there is a
Page 15 of 21

distinction between what an adjudicator must consider and what the adjudicator
must explain in the disability determination or decision.” SSR 06-3p. See also
Phillips v. Barnhart, 91 Fed.Appx. 775, 780 (3d Cir. 2004) (“the ALJ's mere
failure to cite specific evidence does not establish that the ALJ failed to consider
it”) quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998). Thus, an ALJ must
provide some written explanation for the assignment of weight, but does not need
to cite each factor considered in the analysis. See Francis v. Comm'r Soc. Sec.
Admin., 414 Fed.Appx. 802, 804-05 (6th Cir. 2011) (“Although the regulations
instruct an ALJ to consider these factors, they expressly require only that the ALJ's
decision include “good reasons ... for the weight ... give[n] [to the] treating source's
opinion”—not

an

exhaustive

factor-by-factor

analysis.

Here,

the

ALJ

acknowledged Dr. Wakham's role as Francis's “treating family osteopath.” In
assigning no weight to his opinion, the ALJ cited the opinion's inconsistency with
the objective medical evidence, Francis's conservative treatment and daily
activities, and the assessments of Francis's other physicians. Procedurally, the
regulations require no more.”) (internal citations omitted).
If explanation allows meaningful judicial review, it suffices. Christ the King
Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d
Cir. 2013) (Court may “uphold a decision of less than ideal clarity if the agency's
path may reasonably be discerned”); Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.
Page 16 of 21

2004) (ALJ is not required to “use particular language or adhere to a particular
format in conducting his analysis” and instead must only “ensure that there is
sufficient development of the record and explanation of findings to permit
meaningful review.”); Hur v. Comm’r Soc Sec., 94 F. App’x130, 133(3d Cir. 2004)
(“There is no requirement that the ALJ discuss in its opinion every tidbit of
evidence included in the record”).
Here, as discussed above, the ALJ’s explanation sufficed for meaningful
review. Supra. The ALJ provided specific explanations supported in the record and
cited to specific treatment notes that contradicted the opinions. Supra. Thus, the
Court finds no merit to this allegation of error.
Thus, the Court finds no merit to this allegation of error. A reasonable mind
could accept the above-described explanation and evidence as adequate, and
Plaintiff has no provided no reason to disturb these conclusions. Substantial
evidence supports the ALJ’s assessment. Pierce v. Underwood, 487 U.S. 552, 565
(1988).1
B. Credibility Assessment
Plaintiff asserts that the ALJ erred in finding her less than fully credible in

1

Plaintiff asserts that the ALJ was obligated to recontact Dr. Taswir pursuant to 20
C.F.R. 404.1512(e). However, that regulation only requires an ALJ to recontact a
physician if the available evidence is insufficient to determine the claim. Id. Here,
Dr. Small’s opinion and the treatment notes provided sufficient evidence to
determine the claim. Thus, the Court finds no merit to this allegation of error.
Page 17 of 21

light of her activities of daily living. (Pl. Brief at 13). Plaintiff asserts that the ALJ
erred in finding her boyfriend less than fully credible because daytime drowsiness
is not incompatible with problems sleeping. (Pl. Brief at 14-15). Plaintiff concludes
that the ALJ failed to sufficiently explain the credibility finding. (Pl. Brief at 16).
When making a credibility finding, “the adjudicator must consider whether
there

is

an

underlying

medically

determinable

physical

or

mental

impairment(s)…that could reasonably be expected to produce the individual’s pain
or other symptoms.” SSR 96-7P. Then:
[T]he adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which
the symptoms limit the individual’s ability to do basic work activities.
For this purpose, whenever the individual’s statements about the
intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7P; see also 20 C.F.R. § 416.929. “Under this evaluation, a variety of
factors are considered, such as: (1) ‘objective medical evidence,’ (2) ‘daily
activities,’ (3) ‘location, duration, frequency and intensity,’ (4) medication
prescribed, including its effectiveness and side effects, (5) treatment, and (6) other
measures to relieve pain.” Daniello v. Colvin, CIV. 12-1023-GMS-MPT, 2013 WL
2405442 (D. Del. June 3, 2013) (citing 20 C.F.R. § 404.1529(c)). “One strong
indication of the credibility of an individual's statements is their consistency, both
internally and with other information in the case record.” SSR 96-7p.
Page 18 of 21

Plaintiff asserts the ALJ erred in relying on her activities of daily living. (Pl.
Brief at 13-18). However, the ALJ also found her to be less than fully credible
because “[t]he medical evidence does not support the claimant's allegations,” and
she made inconsistent claims regarding her work history. (Tr. 18-19). The ALJ
properly concluded that objective medical evidence failed to support her claims,
noting the GAF scores, clinical observations (which include normal mental status
examination and her denial of psychiatric complaints when cleared for Chantix),
and noting the course of treatment did not support her claims. (Tr. 19). The ALJ
also properly relied on Plaintiff’s inconsistent claims. “One strong indication of the
credibility of an individual's statements is their consistency, both internally and
with other information in the case record.” SSR 96-7p. Plaintiff does not seriously
address these rationales. Thus, even if the ALJ erred in relying on her activities of
daily living, a reasonable mind could accept the above-described explanation and
evidence as adequate, and Plaintiff has no provided no reason to disturb these
conclusions. Substantial evidence supports the ALJ’s credibility assessment.
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Plaintiff tangentially notes that she appeared unrepresented at the hearing,
although her counsel had requested it be rescheduled. (Pl. Brief at 1). The Court
construes this as a challenge to the ALJ’s development of the record. However, a
challenge to the development of the record must allege prejudice, as demonstrated
Page 19 of 21

by evidentiary gaps that exist as a result of the failure to develop the record. See
Coe v. Astrue, 3:07-CV-0500, 2008 WL 818948 (M.D. Pa. Mar. 25, 2008);
McCurry v. Astrue, CIV.1:CV-07-1235, 2008 WL 2914368 (M.D. Pa. July 23,
2008). Here, as discussed above, the record contained sufficient evidence to decide
the claims without evidentiary gaps. Thus, the Court finds no merit to this
allegation of error.
VII.

Conclusion

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 at 503.
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 reasonable mind might accept the
Page 20 of 21

relevant evidence as adequate. Accordingly, 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 will follow.

Dated: September 30, 2015

s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE

Page 21 of 21