Deal v. Astrue et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry)For all the reasons expressed above, the Commissioners decision denying SSI benefits in this case must be affirmed.An Order consistent with this determination will be filed contemporaneously herewith.Signed by Honorable Richard P. Conaboy on 6/8/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Andrea Deal

:

Plaintiff

:

v.

: 3:14-CV-1750

Commissioner Michael J. Astrue

: (Judge Richard P. Conaboy)

Defendant.
___________________________________________________________________
Memorandum
We consider here the appeal of Plaintiff Andrea Deal
(“Plaintiff” or “Deal”) from the decision of the Social Security
Administration (“SSA”) denying her application for Supplemental
Security Income Benefits (“SSI”).

This issues have been fully

briefed by the parties and this case is now ripe for disposition.
I.

Background.
A.

Procedural Posture.

On October 14, 2011, the Plaintiff, alleging a disability
onset date of October 1, 2011, filed a protective application for
SSI with the SSA.

Plaintiff’s claims were denied at the

administrative level on January 31, 2012 whereupon she filed a
written request for a hearing.

The hearing took place on February

5, 2013 in Wilkes Barre, Pennsylvania before Administrative Law
Judge Michelle Wolfe (“the ALJ”).

In a written decision dated

1

March 28, 2013, the ALJ determined that Plaintiff was not disabled.
Plaintiff timely appealed the ALJ’s decision to the Appeals
Council on May 23, 2013.

By letter dated July 24, 2013, the

Appeals Council approved the ALJ’s decision as the final decision
of the Commissioner of the SSA.

On September 12, 2014, Plaintiff

filed a timely appeal with this Court that contests the propriety
of the SSA’s final decision.

The Court has jurisdiction of this

matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(iii).
B.

Testimony Before the ALJ.

Plaintiff testified as follows.

She was born on March 25,

1978 and last worked on October 1, 2011.
employment was as a nurse’s aide.

(R.36).

(R.35).

Her last

certification as a nurse’s aide in 1999.

She received her
(Id).

She stated that

she stands 5'3'’ tall and weights approximately 107 pounds.
37).

She is right hand dominant.

(R.37).

(R.36-

She holds a driver’s

license but drives only as needed to make medical appointments or
visit her five daughters who currently reside with her former
husband.

(R.35-37).

In response to the ALJ’s question whether she can provide any
kind of work, Plaintiff testified that she has bronchial asthma
that impairs her breathing, arthritic knees that have undergone two
surgeries, arthritis in both ankles, bilateral carpal tunnel
syndrome, and a chipped venicular bone in her right hand.
39).

(R.38-

Plaintiff also stated that she was under the care of a

2

psychiatrist.

(R.39).

Her medications include: Xanax, Percoset,

and Fioricet.

(R.39-40).

She alluded to swollen lymph nodes in

her head which she claims have aggravated recurrent migraine
headaches.

(R.40).

She further testified that she takes Percoset

to alleviate pain in her back and legs and denied experiencing side
effects from her medications.

(Id.).

Plaintiff also testified

that she has a TENS unit at home and that, while she uses it every
other day for her pain, it does not seem to work.

(R.40-41).

Plaintiff also testified that she tries to walk but can only
do so for a short period of time because her legs begin to hurt.
(R.41).

She estimated that she could walk for about five minutes

and that “the doctors said do not lift over ten pounds.”

(Id.).

She stated further that both Drs. Jalowiec and Malloy restricted
her to lifting no more than ten pounds.

(Id.).

With respect to her physical capacities, Plaintiff stated that
she tries to do household chores and she is able to run the vacuum
“a little bit”.

(R.42).

She stated that she has trouble doing the

laundry due to the bending involved and her father helps her with
that task.

(Id).

Her cooking is confined to items that can be

heated in a microwave oven.

(Id.).

When her children comes to

visit her she watches them play video games but cannot play with
them outside due to breathing problems for which she uses a
Ventolin inhaler.

(R.42-43).

Plaintiff also testified that she

was experiencing pain in her left side and radiating down into her

3

left leg during the hearing.

(R.43).

Under questioning from her

attorney, she stated that her pain typically comes on after she has
been sitting for approximately 20 minutes and that it intensifies
during unspecified weather conditions.

(R.44).

She stated further

that she experiences numbness and weakness in both hands as a
result of carpal tunnel syndrome for which she was contemplating
surgery.

(R.45).

She described experiencing migraine headaches 4-

5 times each week that can be so severe that she must lie down and
close her eyes to find some relief.

(R.45-46).

Plaintiff also

asserts that she experiences difficulty in buttoning her clothing
and tying her shoes as a result of her numbness with her fingers
and the pain in her back.

(R.47).

She related that tasks she

could formerly perform quickly and easily now are difficult for her
and require more time.

(R.47-48).

She acknowledged that she tried

to return to work in 2011 on a night shift job at which she could
stand and sit at will.

(R.48).

She states that she lost that job

when she was subjected to a drug screening which revealed the
numerous medications in her system.

(R.49).

Also testifying at the hearing before the ALJ was Nadine
Henzes, a vocational expert.

Ms. Henzes described the Plaintiff’s

past relevant work as that of a nurse’s aide.

(R.50).

She had

several jobs as a nurse’s aide and, while all would be classified
as semi-skilled, they varied from light to medium to heavy
exertional levels.

(R.51-52).

In response to a hypothetical

4

question from the ALJ that asked Ms. Henzes to assume an individual
with the same age, education, and work experience as the Plaintiff,
who had the residual functional capacity to perform work at the
light exertional level subject to limitations including: occasional
crawling and climbing but never on ladders, ropes or scaffolds;
occasional pushing and pulling with the upper extremities; and the
need to avoid temperature extremes of hot and cold and the hazards
posed by moving machinery and unprotected heights; Ms. Henzes
indicated that such an individual could not perform the Plaintiff’s
past relevant work.

(R.52).

However, Ms. Henzes stated that given

limitations imposed by the ALJ’s first hypothetical question, there
were other jobs in the national economy that such a person could
perform such as information clerk, desk clerk, and office helper.
(Id.).
If the additional limitation of “occasional fingering” was
added to the hypothetical question, Ms. Henzes concludes that both
the desk clerk and office helper jobs would be eliminated from
consideration but that the information clerk position could be
performed.

(R.53).

Ms. Henzes also stated that even with the

additional fingering limitation Plaintiff could also perform such
tasks such as hostess or usher.

(Id.).

The ALJ then asked Ms. Henzes to consider that Plaintiff was
reduced to a sedentary level of exertion with all the additional
limitations posed in the previous hypothetical questions.

5

(R.53-

54).

Ms. Henzes responded that even then jobs existed in the

national and regional economies that Plaintiff could perform.
(R.54).

These jobs included positions as an appointment clerk,

data entry clerk, and video monitor.

(Id).

A final hypothetical question was posed to the vocational
expert that asked her to assume a sedentary level of exertional
capacity with all previously discussed additional limitations as
well as cognitive limitations of simple, routine tasks in a lowstress environment with only occasional decision-making and
occasional changes in work setting.

(R.55).

Even with these

additional limitations, the vocational expert concluded that
Plaintiff would be able to function as a video monitor, a document
preparer, or a data entry person.

(R.56-58).

In response to a question from Plaintiff’s attorney that asked
the vocational expert to assume also that the Plaintiff can sit for
only 15-20 minutes at a time, stand for only 5 minutes at a time,
and would find it necessary to lie down each day during the workday
for at least a half hour and on some days for the entire day, the
vocational expert responded that all of the positions she had
discussed would be eliminated.
C.

(R.57).

Medical Evidence.

The record substantiates that Plaintiff has a long time
treating relationship with Dr. Michael Jalowiec.
75, and 679-87).

(R.621-49, 674-

Dr. Jalowiec’s notes indicate that he saw

6

Plaintiff on at least 16 occasions between February of 2011 and
February of 2013.

On many more occasions, Plaintiff called to

request that Dr. Jalowiec refill various prescriptions for
Percoset, Fiorocet, and Xanax.1

Dr. Jalowiec’s notes do indicate

his diagnoses that Plaintiff suffers from osteoarthritis of both
knees and chronic back pain.

Dr. Jalowiec’s notes do not include

any assessment of Plaintiff’s functional limitations nor do they
allude to any level of disability.
In December of 2011, Plaintiff began seeing M.A. Rahman, M.D.,
a psychologist, for mental health treatment.

On December 8, 2011,

Dr. Rahman authored a Psychiatric Evaluation of the Plaintiff.
(R.617-18).

Dr. Rahman indicated that Plaintiff’s speech was

spontaneous, that she had good eye contact, that she was oriented
in all spheres, that her attention and concentration were good, and
that her insight and judgment were good.
that Plaintiff’s mood was anxious.

Dr. Rahman also noted

Dr. Rahman diagnosed major

depressive disorder and panic disorder without agoraphobia and
prescribed Paxil to be taken in conjunction with the Xanax that had
already been prescribed by Dr. Jalowiec.

Dr. Rahman subsequently

saw Plaintiff on January 5, 2012, February 2, 2012, and March 29,
2012.

On each of these occasions Dr. Rahman’s notes indicate that

1

Fioricet is a combination of acetaminophen, butabutal, and caffeine often prescribed for
tension headaches; Percocet is a combination of acetaminophen and oxycodone often prescribed for
moderate to severe pain; Xanax (Alprazolam) is used to treat anxiety disorders and depression. See
www.drugs.com.
7

Plaintiff was friendly and cooperative, oriented, non-psychotic,
and that she displayed appropriate affect and reported that the
prescribed medications were helpful.

On April 26, 2012, Plaintiff

reported that the combination of Paxil and Ambien previously
prescribed by Dr. Rahman were effective and had resulted in
improved sleep.

(R.729).

On February 29, 2012, Plaintiff was examined by Dr. John T.
Rich who found that carpal compression caused “pain more so than
numbness.”

Dr. Rich found that Plaintiff had “good motion of her

digits” and, per Plaintiff’s request, injected both her carpal
canals with an anesthetic solution.

Dr. Rich’s note also indicates

his belief that Plaintiff should have a neurological evaluation.
(R.666-667).

There is no evidence in the record to indicate that

Plaintiff ever had such a neurologic evaluation.
On January 23, 2013, Plaintiff presented for a psychiatric
evaluation by Dorothy Dean, LPC, of Wholistic Counseling Services
in Scranton, Pennsylvania.2

Ms. Dean’s evaluation revealed that

the Plaintiff “was court-ordered to therapy.”

Ms. Dean described

Plaintiff as a woman who appears her stated age with good hygiene
and eye contact.

She further described Plaintiff as cooperative

and noted that she answered questions appropriately and that her
thought processes were intact.

Ms. Dean further described

2

Despite Plaintiff’s testimony that she had seen Ms. Dean on a weekly basis from October of
2012 through February of 2013, the only document in the record from Ms. Dean relates to the session
of January 23, 2013.
8

Plaintiff as future-oriented, without psychotic thought processes,
hallucinations or illusions, and possessed of a good memory.

She

noted, however, that Plaintiff had poor judgment and impulse
control, that her attention span was poor, that she was socially
immature, and that she had difficulty staying focused.

Ms. Dean

diagnosed that Plaintiff was afflicted by generalized anxiety
disorder.

She expressed no opinion regarding the extent of the

limitations posed by Plaintiff’s generalized anxiety disorder.
(R.677-78).
On January 1, 2012, Plaintiff was seen by Vincent Bianca,
M.D., for a Bureau of Disability Determination consultative
examination.

Dr. Bianca diagnosed Plaintiff with degenerative

cervical disc disease and attendant muscle spasm, muscular
headaches, possible degenerative lumbar disc disease with painful
range of motion, asthma, depressive disorder, and chronic pain
syndrome.

(R.653-54).

Dr. Bianca found normal strength in both

Plaintiff’s arms, near normal (4/5) strength in both Plaintiff’s
legs, normal reflexes of the upper extremities, no evidence of
focalized neurological deficits, no need for any assistive device
to aid Plaintiff in walking, and no evidence of decreased grip
strength in either hand.

(R.652-57).

On January 30 2012, Dr. Jan Kapcala conducted a review of
Plaintiffs’s medical records to that date.

Dr. Kapcala noted,

inter alia, that no objective findings supported Plaintiff’s

9

complaints of neck and low back pain.

Dr. Kapcala stated that

multiple MRI’s of her lumbar spine had been normal and no imaging
of her cervical spine had been done.

Dr. Kapcala observed that

“her asthma is mainly by history, with no evidence she is having
any associated symptoms.”

Dr. Kapcala also stated that the

Plaintiff’s carpel tunnel syndrome has been treated and was not an
ongoing issue as demonstrated by her grip strength and the fact
that there was no significant loss of dexterity.

Finally, Dr.

Kapcala concluded that, despite the presence of decreased range of
motion of the Plaintiff’s cervical spine and related muscle spasms,
Plaintiff had no medically determinable impairments that met a
specific listing in the Social Security regulations.
D.

ALJ Decision.

The ALJ’s decision (Doc. 10-2) was unfavorable to the
Plaintiff.

It included the following findings of fact and

conclusions of law:

(1)

The claimant has not engaged in substantial gainful
activity since October 14, 2011, the application
date.

(2)

The claimant has the following severe impairments:
major depressive disorder (MDD), panic disorder, and
generalized anxiety disorder (GAD).

(3)

The claimant does not have an impairment or

10

combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
(4)

After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform a full range
of work at all exertional levels but with the
following non-exertional limitations: she cannot
perform complex tasks, but she can do simple routine
tasks in a low stress environment defined as
occasional decision-making and occasional changes in
the work setting.

The claimant can have occasional

interaction with the public, co-workers, and
supervisors.
(5)

The claimant in unable to perform any of her past
relevant work.

(6)

The claimant was born on March 25, 1978 and was 33
years old, which is defined as a younger individual
age 18-49, on the date the application was filed.

(7)

The claimant has at least a high school education
and is able to communicate in English.

(8)

Transferability of job skills is not material to the
determination of disability because using the

11

Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether
or not the claimant has transferable job skills.
(9)

Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform.

(10) The claimant has not been under a disability, as
defined in the Social Security Act, since October
14, 2011, the date the application was filed.
II.

Disability Determination Process.
The Commissioner is required to use a five-step analysis to

determine whether a claimant is disabled.3

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely

3

“Disability” is defined as the “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 that 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
only if his physical or mental impairment or impairments are of such
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).
12

impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 CFR §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her 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, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.38-39).
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

13

Substantial evidence

means “more than a mere scintilla.

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise.

A single piece of

evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence.

Nor is evidence substantial if it

is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion.

See Cotter, 642 F.2d at 706

(“Substantial evidence” can only be
considered as supporting evidence in
relationship to all the other evidence in the
14

record.”) (footnote omitted).

The search for

substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.

710 F.2d at 114.
This guidance makes clear that it is necessary for the
Secretary to analyze all evidence.

If she has not done so and has

not sufficiently explained the weight given to all probative
exhibits, “to say that [the] decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize
the record as a whole to determine whether the conclusions reached
are rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

15

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d

16

112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

IV.

Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the

substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts

17

have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Allegation of Error.

Plaintiff identifies one issue at Page 4 of her Memorandum of
Law (Doc. 11).

The Court reads that issue as an amalgam of two

issues that are better addressed independently as follows:
1.

Whether Substantial Evidence Supports the ALJ’s
Determination that Plaintiff Can Perform Substantial
Gainful Activity?

We note initially that it is Plaintiff’s burden to demonstrate
that her impairments are so severe as to preclude her from engaging
in any gainful activity.
1382(c)(a)(3)(A).

42 U.S.C. §§ 423(b)(1)(A),

Additionally, the Plaintiff must show not only

that she has a diagnosed impairment or impairments, but also that
she has associated functional limitations that prevent her from
performing any gainful activity.

Petition of Sullivan, 904 F.2d

826, 845 (3d. Cir. 1990).
Plaintiff has produced credible medical evidence that she has
three severe impairments: major depressive disorder, panic
disorder, and a generalized anxiety disorder.

The ALJ did note

these impairments in her Findings of Fact and Conclusions of Law.
(Doc. 10-2, R.17).

Plaintiff has also produced medical evidence

that she has degenerative disc disease of her cervical spine,
18

carpel tunnel syndrome and migraine headaches.

The ALJ, while

noting these conditions, did not find them to be severe.

4

The AlJ

found it significant that Plaintiff’s treatment for her cervical
spine maladies had been confined to ingestion of pain medications
and that she had not seen any specialist for a consult regarding
potential alleviation of this condition.

The ALJ also noted that

various MRI and X-ray studies were unremarkable and that a State
Agency medical consultant who reviewed Plaintiff’s medical records
found that her back issues did not constitute a medically
determinable impairment.

(R.18, Exs. B-3A, B-7F, B-20F, and B-

24F).
With respect to Plaintiff’s carpal tunnel syndrome, the ALJ
noted correctly that there is no objective medical evidence of any
loss of motor strength or loss of dexterity in the record.

In

fact, Dr. Rich’s consultative examination showed no such deficits
of Plaintiff’s hands or wrists.

(R.18-19, Ex. B-24F).

With respect to Plaintiff’s migraine headaches, the ALJ noted
that a CT scan done in June of 2009 showed that Plaintiff had no
cranial abnormalities.

There is no objective medical evidence in

the record to support a diagnosis of migraine headaches.

Further,

Plaintiff’s primary care physician treated claimant’s headaches
only by continuously dispensing Fioricet.
4

(R.18, Ex. B-24F).

The ALJ also rejected Plaintiff’s claim that she suffers from asthma because there is no
objective evidence of any medical treatment of asthma or even a concrete diagnosis of asthma in the
record subsequent to Plaintiff’s alleged onset date.
19

The ALJ considered each of Plaintiff’s physical complaints and
found none constituted an impairment due to the reasons discussed
above.

The Court cannot conclude that the ALJ lacked a reasonable

basis for her determination that Plaintiff had no severe physical
impairment because her determination is supported by such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion - - that is, it comports with the standards set out in
Richardson and Cotter, supra.

Ms. Deal’s treatment for each of her

physical conditions was of a routine and conservative nature and
thus undermines her subjective complaints regarding the severity of
these symptoms.
1994).

Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir.

Moreover, the ALJ’s credibility determinations should not

be reversed unless inherently incredible or patently unreasonable.
See Atlantic Limousine, Inc. V. NLRB, 243 F.3d 711, 718-19 (3d.
Cir. 2001).

Were there medical evidence in the records that spoke

specifically to the level of impairment that Plaintiff’s physical
conditions impose, the Court may have concluded otherwise.
However, again, mere diagnoses without supporting evidence of
disabling impairment cannot support an award of benefits.

Petition

of Sullivan, supra.
Plaintiff also argues that the ALJ irrationally subordinated
the conclusions of Ms. Dean regarding the limiting effect of
Plaintiff’s psychological symptoms to those of Dr. Rahman.
11 at 8-9).

(Doc.

The Plaintiff argues that the ALJ in fact substituted

20

her own medical opinion for that of Ms. Dean.
simply incorrect in this regard.

(Id.).

Plaintiff is

By finding that Plaintiff had

severe psychological limitations in the form of generalized anxiety
disorder, panic disorder, and major depressive disorder, the ALJ
actually agreed with Ms. Dean’s findings in significant measure.
The ALJ did not agree that Ms. Dean’s GAF assessment (48) was a
reliable indicator of the limitations imposed by these conditions.
The ALJ did not, as Plaintiff asserts, substitute her own
judgment for a medical opinion of record.

Rather, the ALJ found

more reliable a second medical opinion of record, that of Dr.
Rahman.

Dr. Rahman also diagnosed Plaintiff as afflicted by major

depressive disorder and panic disorder.

Yet, the totality of his

treatment records (spanning at least four sessions with the
Plaintiff) indicated that she was generally oriented, possessed of
good insight and judgment, non-psychotic, friendly, cooperative,
and that she displayed appropriate affect.

Dr. Rahman assessed a

GAF score of 60 - - a score indicative of only moderate functional
limitations.
The Court cannot conclude that the ALJ’s decision to find Dr.
Rahman’s assessment more reliable than that of Ms. Dean may be
viewed as irrational. Dr. Rahman’s credentials are academically
superior to those of Ms. Dean, he saw the Plaintiff more often than
she, and his GAF assessment is more consistent with his description

21

of Plaintiff’s demeanor than that of Ms. Dean.5

The ALJ may choose

which examining source to credit based on his evaluation of the
evidence as a whole.
2000).

Morales v. Apfel, 225 F.3d 310, 317 (3d. Cir.

The Court finds that the ALJ did precisely that in this

case and that her reasoning is easily supported by the “substantial
evidence” standard expressed in Richardson and Cotter, supra.
2.

Whether the ALJ Erred as a Matter of Law in Determining
that Plaintiff’s Testimony Regarding her Level of Pain
was only Partially Credible?

Plaintiff’s complaints regarding the level, frequency, and
intensity of her leg, back, and hand pain were found to be “not
entirely credible” by the ALJ.

(Doc. 10-2 at 9; R.23).

The ALJ

noted that Plaintiff’s treatment for her leg and back pain had been
conservative and confined exclusively to the ingestion of various
pain relief medications.

The ALJ noted also that in the nearly

three years Plaintiff treated with Dr. Jalowiec, she was never
referred to a specialist for an evaluation of the objective causes
of her leg and back pain and that there is no objective test in the
record to substantiate this pain.

(R.20).

Similarly, there is no

objective testimony in the record to substantiate the existence,
frequency, or intensity of the migraine headaches the Plaintiff

5

Ms. Dean found that Plaintiff was cooperative, fully oriented, answered questions
appropriately, was devoid of psychotic symptoms, and that her thought processes were intact. These
findings are somewhat inconsistent with Ms. Dean’s conclusion that Plaintiff has severe
psychological functional limitations.
22

claims to suffer and, as with her back and leg pain, Plaintiff’s
treatment has been confined to use of oral pain medications with no
further effort to explore other treatment modalities.

(R.22-23).

The ALJ, as the finder of fact, is accorded wide discretion in
making credibility findings.
(3d Cir. 1983).

Van Horn v. Schweiker, 717 F.2d 871

Moreover, the mere fact that Plaintiff has been

diagnosed with conditions that can produce the type of pain or
symptomology she claims to experience does not automatically result
in a finding of disability.

Petition of Sullivan, supra.

Jones v. Sullivan, 954 F.2d 125, 129 (3d. Cir. 1991).

See also

A claimant’s

subjective allegations of pain or other symptomology cannot
establish disability.

42 U.S.C. § 423(d)(5)(A); 20 CFR 416.929(a).

Deferring, as we must, to the legal standard set forth in the
previous paragraph, the Court concludes that the ALJ’s decision to
only partially credit Plaintiff’s subjective complaints was well
within her authority as the fact finder in this matter.

The

absence of objective test results to support Plaintiff’s subjective
complaints, combined with the utter lack of any medical opinion
quantifying the extent to which Plaintiff’s physical conditions
limit her ability to work, provide ample support for the ALJ’s
conclusion on this issue.

Here again, the ALJ’s conclusion is

supported by a quantum of evidence that a reasonable mind might
accept as adequate to support a conclusion.
required.

See Richardson and Cotter, supra.

23

More than that is not

V.

Conclusion.

For all the reasons expressed above, the Commissioner’s
decision denying SSI benefits in this case must be affirmed.
An Order consistent with this determination will be filed
contemporaneously herewith.

BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: June 8, 2015

24