Nicholson v. Colvin

Filing 14

MEMORANDUM (Order to follow as separate docket entry)For all the foregoing reasons, the decision of the Commissioner to deny benefits in this case is affirmed. An Order consistent with this determination will be filed contemporaneouslySigned by Honorable Richard P. Conaboy on 3/19/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Joyce J. Ni

Ison

Plaintiff

(Case No. 3:14 CV-1819)

v.
Judge

:Carolyn W.
iCorrnnissioner
Security

rd P. Conaboy

the Social
istration

Defendant

Memorandum
r here Plaintiff's appeal of a

We cons

fits

ty Income

Supplemental S

the Social Security Act

("Act"),

("SSI")

law judge ("ALJ") who evaluat

that the PIa

iff has the res
work with certa

exist in si

i

Plaintiff can

(R.2S).

claim, a denial that was subs
Council.

(R.2 6).

assertions:

national economy that the
Thus, the ALJ

by finding P

of a psychol

cal consultant;

upon seven
iff's

(2) that the ALJ erred in findi

that the Plaintiff does not meet a medical listi
(3) that the ALJ erred by acco

ied Plaintiff's

ntly affirmed by the Appeals

Plaintiff's appeal is ba

non-severe;

cit y ( " RFC ") to

limitations (R.21)and that jobs

(1) that the ALJ e

fibromyalgia to

The

this claim found

1 functional

cant numbers
rform.

r Title XVI

1614 (a) (3) (A).

§

administrat

perform Ii

ial of

ng limited wei

at

§

12.05(C)i

to the test

(4) that the ALJ erred in finding
1

that the

aintiff was not fully credible regarding the severity of

her limitations;

(5) that the ALJ erred in her assessment of

Plaintiff's RFC;

(6) that the ALJ erred in the extent to whi

he

relied upon the vocational expert's testimony; and (7) that the ALJ
erred in failing to make speci

c findings regarding Plaintiff's

capacity to perform basic work-related act
I .

ies.

Background.

Plaintiff was 48 years old at the time of her hearing be
the ALJ.

(R.31).

She completed the ninth grade.

(Id).

re

Her last

employment was as a cashier in a fast food restaurant at some
undetermined point in 2008 or 2009.

1

She also had previous

experience as a packer and a hotel maid.

(R.46-47).

The record

indicates that the Claimant was fired by her last employer for
eing late and failing to keep up with her work.
testi

(R.239). Claimant

ed that she had been receiving unemployment compensation for

some time until her eligibility expried.

(R. 31-32).

Plaintiff

alleges a disability onset date of January 1, 2012 in her
rotectively filed application for SSI of July 23, 2012.
A.

(R.16) .

Physical Impair.ment Evidence.

The medical evidence of record indicates that P

intiff

presented at the Carlisle Regional Medical Center on November 1,

1 The claimant testified that she never worked as a cashier, but rather had worked as a
sandwich maker at Burger King, McDonald's and Wendy's. This lack of clarity makes little
ifference because the vocational expert testified that each of these jobs would be in the same
lassification. (R.46-47).

2

2011 complaining of right leg pain
(R.216).

unre~ated

to any known injury.

Dr. Scott Rainkin indicated his clinical impression that

Claimant was suffering from arthralgia and osteoarthritis pain.
(R218) .

Dr. Rain

discharged C

n prescribed Percocet and Mot

imant with

emergency department if

n for pain and

structions that she should return to the
r symptoms worsened or failed to improve.

(Id. ) .
On September 28, 2012, Plaintiff

sented at t

Saddler

Health Center in Carlisle, Pennsylvania where she was seen by Dr.
Luan V. Pham.

Dr. Pham's notes indicate that PIa

in in both knees, hands, shoulders and arms.

iff had ongoing

(R.253) .

Dr.

Pham's examination also revealed swelling of her right

and Dr.

Pham alluded to injections in her knee that had been administered
at some unspecified prior time and "did not

Ip

r at all."

(Id)

Dr. Pham's assessments included myalgia and bilateral knee pain and
his notes reflect his suspicion that Plaintiff had fibromya
some kind of connective tissue disorder given the
her

in and multiple bilateral trigger points.

Pham prescribed Cymbalta but did not

ffuse nature of
(R.253-54) .

Dr.

r Plaintiff stronger pain

cation because she had a history of substance abuse.
Dr. Pham also expressed an interest in

ia or

(Id. )

ting Plaintiff to an

orthopedic specialist or having her undergo an MRI but noted that
she had no insurance to cover such costs.

(R.254) .

On October 4, 2012, Plaintiff presented for a disability

3

evaluation by Dr. Thomas McLaughlin.

(R.225-230).

Dr.

cLaughlin's findings included: that Plaintiff walked with an
antalgic gate favoring her right lower extremity; swelling of the
right knee suprapatellar area; that claimant was incapable of
standing on one leg at a time; and that all of her fibromyalgia
o

s were positive.

included:

(R.228-29).

Dr. McLaughlin's impressions

(1) diffuse pain likely secondary to fibromyalgia; and

(2) right knee suprapatellar swelling of undetermined ideology.
Dr. McLaughlin also found: that Plaintiff could lift and carry up
to twenty pounds frequently; that she could stand and walk no more
than three hours in an eight hour day; that she could s

without

limitation; and that she could occasionally stoop, crouch, balance,
and climb but never kneel.
B.

(R.232-33) .

Mental Impairment Evidence.

Plaintiff underwent a consultat

psychological examination

by Examining Psychologist Christopher Royer, Psy. D., on October
25, 2012.

Dr. Royer's examination was performed at the request of

the SSA through the Pennsylvania Bureau of Disability
Determination.

Dr. Royer's findings regarding Plaintiff included:

impaired short-term memory; intelligence quotient (68)

in the

impaired range; borderline intellectual functioning; and depress
disorder.

(R.240-41).

Dr. Royer's assessments of Plaintiff's

intellectual capacity were derived from a test (the Wechsler Adult
Intelligence Scale) he administered to Plaintiff (R.240).

4

On November 1, 2012,

Plainti

's evaluation by Dr. Royer was

submitted to Sandra Banks, Ph. D.

Dr. Banks did not examine

Plaintiff but merely reviewed Dr. Royer's notes and findings.
Based upon her review of Plaintiff's medical records, including Dr.
Royer's report, Dr. Banks concluded that Dr. Royer's "opinion
relies heavily on the subjective report of symptoms and limitations
provided by the individual and the totality of the evidence does
not support the opinion.

The CF examiner's opinion is an

overestimate of the severity of the individual's
restrictions/limitations and based only on a snapshot of the
individual's functioning."

(R.62).

Plaintiff is not disabled.

(R.64) .

C.
PIa

Dr. Banks then opined that

ALJ Hearing Testimony.
iff testified that she completed ninth grade and then

dropped out of school to work.

(R.31) .

She had been receiving

unemployment compensation for approximately four years prior to the
hearing but her eligibility has expired.

(R.32).

She testified:

that she cannot stand or sit for long; that her knees and back "go
out on me"; that she has a problem focusing her attention; that
intense pain in her right knee disturbs her sleep each night; that
her

Igia causes a pressure and a stinging feeling in her

lower back; and that she experiences pain intermittently in both
her lower back and the back of her neck and that she is not on pain
edication because she has no insurance.

5

(R.3234).

With respect to her mental state, Plaintiff testified that her
depression manifests in a feeling that she doesn't want to be
around anyone and in the desire to sleep.

2

(R.34).

She also

states that she was taking medication for depression but stopped
because it was giving her na weird feeling".
Regarding her acti

y level,

(Id. ) .

Plaintiff testi

ed that she

tries to help around the house and occasionally babys
six-year old granddaughter.

(R.35).

s for her

Her babysitting activity is

confined to the weekends when the child's mother takes her to
Plaintiff's residence.

(R.36).

Plaintiff stated that she watches

television with the child and draws with her.

(Id. ) .

In response to questioning from her counsel, Plaintiff stated
that she withdrew from school in the ninth grade due to a
that everyone was looking at her and laughing at her.
of self-consciousness was related to her stuttering.

ling

This feeling
(R.37).

also testified that she had trouble reading and doing math.

She

(Id _ ) _

Plaintiff testified at some length that she has difficulty staying
focused on anything and that she is prone to start a task and not
finish it_

(R _37-38).

She testified further that the back pain

from her fibromyalgia can bring her to tears and that her knees
sometimes buckle when she walks and that this happens as often as
three times each day_

(R.39) _

She stated that she can only stand

Plaintiff s testimony is paraphrased to some extent due to the fact that her testimony is
somewhat inarticulate.
2

6

from five to ten minutes before she starts to experience pain.
(Id. )

Plaintiff's husband testified that, while P

ntiff can dress

herself and do a little cooking, he is basically taking care of
her.

(R.43).

He also stated that he has noticed a decline in her

entally, that she does not want to leave the house, that in the
year before the hearing she lost 40 pounds, and that "she don't
smile no more."

(R.43-44).

Testimony was also provided by Ms. Harder, a Vocational
Expert.

("VE").

Ms. Harder testified that she had examined

Plaintiff's work history.

(R. 46) .

Plaintiff's work history had

been confined to light, unskilled work as a fast food worker and a
cleaning person in a hotel.

(R.46-47).

The ALJ asked the VE to

respond to a hypothetical question in which the VE would assume the
following limitations: that Plaintiff was capable of performing
light work; that she could stand or walk no more than two to three
hours per day; that she could only occasionally bend, stoop,
crouch, balance, or climb; that the work should invo

only

routine, repetitive one or two step tasks; that the Plaintiff have
only occasional interaction with the public, co-workers, and
supervisors; that the Plaintiff not be exposed to fast-paced
production quotas; and that the Plaintiff would be expected to be
off-task f

to ten percent of the time due to her psychological

symptoms and physical pain.

(R.48 49).

7

The limitations that the

E was asked to assume were supported by findings made by Dr.
cLaughlin and Dr. Banks.

The VE responded that it was difficult

to say whether Plaintiff could do any of her past work.

(Id. ) .

The VE explained that, if one supposed Plaintiff would be off-task
, she certainly could not do any of her

ten percent of the t

previous jobs and, even if one presumed only five percent downtime,
the lack of a sit-stand option would preclude Plaintiff from all
evant work.

past

(R.49).

The VE did conclude that if one

presumed all aspects of the hypothetical

stion with only a five

percent downtime factor, other jobs existed in the national economy
(e.g., a laundry worker who operates a machine that folds clothing)
that Plaintiff could

D.

rform.

(R. 50) .

ALJ Decision.

The ALJ determined that Plaintiff had not been under a
disability since her alleged onset date and made the following
findings of fact and conclus
1.

s of law:

The Plaintiff had not engaged in substantial gainful
activity since July 23, 2012, the application date
(20 CFR 416.971 et seq.).

2.

The Plaintiff has the following severe impairments:
osteoarthritis of the right knee; depression; and
borderline intellectual functioning.

(20 CFR

416.920(c)).
3.

The Plaintiff does not have an impairment or

8

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 Plaintiff has the
residual functional capacity to perform light work
as defined in 20 CFR 416.967(b)

except the Plaintiff

can alternate sitting and standing at will; stand
and/or walk two to three hours per eight hour work
day; never kneel or crawl; occasionally bend, stoop,
crouch , balance, and climb; avoid work at
unprotected heights or around dangerous moving
machinery; perform routine , repetitive one to two
step tasks; no complex reading or math; occasional
interaction with the public, co -workers, and
supervisors; occasional changes in the work setting ;
occasional decision-making ; no fast-paced production
quota; and off-task five percent of the work time.
5.

The Plaintiff is unable to perform any past relevant
work (20 CFR 416.965).

6.

The Plaintiff was born on March 21 , 1965 and was 47
years old, which is defined as a younger individual
age 18-49, on the date the application was filed

9

(20

CFR 416.963) .

7.

The Plaintiff has a limited education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not an issue in
this case because the Plaintiff's past relevant work
is unskilled (20 CFR 416.968).

9.

Considering the Plaintiff's age, education, work
experience and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the Plaintiff can perform.
(20 CFR 416.969 and 416.969(a)).

10. The Plaintiff has not been under a disability,
defined in the Social Security Act,

as

since July 23,

20 1 2, the date the application was filed

(20 CFR

416.920(g)).
II. Disability Determination Process.

The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.

J

It is necessary for the

J "Disability" is defined as the "inability to engage in any substantial gainful activity by
eason 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
10

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial act

ty; 2) whether the applicant is severely

impaired; 3) whether the impairment matches or is equal to the
requirements of one

the listed impairments, whereby he qualifies

for benefits without further inquiry; 4) whether the claimant can
claimant's impairment

erform his past work; 5) whether

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
If the claimant satis

work.

es this burden, then the Commissioner

ust show that jobs exist in the national economy that a person
ith the claimant's abilit
can perform.

, age, education, and work experience

Mason v. Shalala,

993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was

ided 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.19) .

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).
11

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 Commiss

v.

r's decision.

42 U.S.C.

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

eans "more than a mere scintilla.
as a reasonable mind might
conclusion."

Substantial evidence

It means such relevant evidence
as adequate to support a
402 U.S. 389, 401 (1971)

chardson v. Perales,

also Cotter v. Harris,

405(g); Hartranft

§

642 F.2d 700, 704

(3d Cir. 1981).

i

see

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
resolve, a confl
evidence.

ils to

created by countervailing

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
12

it really constitutes not evidence but mere
conclusion.

See

[Cotter,

642 F.2dJ at 706

("'Substantial evidence' can only be
considered as supporting

dence in

relationship to all the other
record. ")

(footnote omitted).

dence in the
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 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) .
not on

Dobrowolsky v.

In Cotter, the

Califano,

606 F.2d 403,

406 (3d

r.

rcuit Court clarified that the ALJ must

state the evidence considered which supports the result

ut 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

13

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
e. g., Knepp v.

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

"There is no requirement

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

Hur v. Barnhart,

dence

94 F. App'x 130, 133 (3d

"[W]here [a reviewing court] can determine that t

re

is substantial evidence supporting the Commissioner's decision,
the Cotter doctrine is not implicated."

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx.

2004)

(not

771, 774

(3d Cir.

cedential).

A reviewing court may not set aside the Commissioner's final
de

sion if it is supported by substantial evidence, even if the

court would have reached different

ctual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler,
1185, 1190-91 (3d Cir. 1986); 42 U.S.C.
of the Commissioner of Social Secu

§

405(g)

("[t]he findings

ty as to any fact,

by sUbstantial evidence, shall be conclusive

806 F.2d

. ").

if supported
"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."
Cir. 1983)

Friedberg v. Schweiker,

ernal quotation omitted).
14

721 F.2d 445, 447

(3d

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

112 (3d Cir. 2000)

ial)

(citing Burnett v. Commissioner, 220 F. 3d

(" [0 J ur primary concern has always been the

lity to conduct meaningful judi

1 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.
atthews 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."
Education and Welfare,

Hess v. Secretary of Health,

497 F. 2d 837, 840
15

(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
have mandated that leniency be shown in establishing the claimant's
disability, and that the Secretary's responsibility to rebut it be
strictly construed."

Id.

B.

Plaintiff/s Allegations of Error.

1.

Whether the ALJ Erred at Step Two by Finding Plaintiff's
Fibromyalgia to be Non-severe?

aintiff argues that her fibromyalgia should have been found
to be "severe".

She argues correctly that an impairment is severe

if it significantly limits an individual's ability to perform basic
work activities.

See 20 CFR § 416.921.

Plaintiff argues further

that the record in this case demonstrates that she is afflicted by
disabling fibromyalgia.

Under SSR 12-2p a person should be

determined to have fibromyalgia if he or she has:
1.

A history of widespread pain in all quadrants of the
body and axial skeletal pain that has persisted for
at least three months; and

2.

At least eleven positive tender points on physical
examination.

The posit

tender points must be

found bilaterally and both above and below the
waist; and
16

3.

Evidence that other disorders that caused the
symptoms or signs were excluded.

Other physical and

mental disorders may have symptoms or signs that are
the same or similar to those resulting from
fibromyalgia.

Therefore,

is common in cases

involving fibromyalgia to find evidence of
examinations and testing that rule out other
disorders that could account for the person's
symptoms and signs.
The evidence of record substantiates the first two elements of
the SSR l2-2p test.

However, as noted by the ALJ (R.18-l9), while

both Dr. Pham and Dr. McLaughlin suspected fibromyalgia, there is
no actual diagnosis of fibromyalgia in this record and there is
certainly no testing referenced in the record that would rule out
other causes for Plaintiff's back and leg pain as required by the
third prong of the SSR l2-2p test.

Indeed, the ALJ has recognized

that Plaintiff has severe osteoarthritis, a condition that could
produce the type of pain Plaintiff experiences.
LJ's conclusion that Pia
fibromyalgia is reasonable.

Accordingly, the

iff did not suffer from severe
The Plaintiff had the burden of proof

to demonstrate the existence of severe fibromyalgia and simply did
not carry that burden.
2.

Whether the ALJ erred at step Three of the Disability
Determination Process in Finding that Plaintiff does not

17

Meet Medical Listing 12-05(c)?

PIa

iff takes issue with the fact that she was not

determined to be disabled pursuant to Medical Listing 12-05(c),
hich describes a disabling mental impairment.

To be disabled

under Medical Listing 12 05(c) a Plaintiff must meet a three-part
test:

(1) a valid verbal, performance or full-scale IQ of 60

through 70;

(2) a physical or other mental impairment that imposes

additional and significant work-related limitations; and (3) proof
that mental retardation was manifest during the developmental
period (before age 22).

4

Defendant counters that, while Plaintiff meets the first and
second prongs of the Listing 12-05(c) test, she has failed to
adduce proof that her intellectual
significant de
of 22.

cit in adapt

sability resulted in a

functioning prior to attaining the

Our review of the record, persuades the Court that

Defendant is correct on this point.

While it is true that

Plaintiff testified to being unhappy at school and experiencing
difficulty reading and doing mathematics, t

re is no record of her

easured IQ before she became 22 years of age.

The Plaintiff

testified that she quit school after the ninth grade to work.
There is no testimony, much less any documentation, that she was
ever identified as a mentally retarded

dual or placed in a

4 The latest formulation of Medical Listing 12-05(c) criteria substitutes "intellectual

isability" for mental retardation", While the nomenclature has changed, the analysis has not.

18

special education setting.

Surely her IQ (as measured by Dr. Royer

when Plaintiff was 47 was years of age) is somewhat below average,
but that fact alone does not render her disabled.

In fact, her

employment history with at least four separate employers over a
period of years demonstrates that she has, at times, functioned
successfully in various work environments.

The Plaintiff has

simply failed to prove a necessary element - - onset of
intellectual disability before age 22 - - of her Listing 12-05(c)
claim.

Thus, we find that the ALJ's decision in this regard is

reasonable and consistent with both the SSA's regulations and
applicable case law.

See Sullivan v. Zebl

,493 U.S. 521, 530

(1990) .
3.

Whether the ALJ Erred by According Limited Weight to the
Opinion Rendered by Dr. Christopher Royer?

The ALJ elected to give little weight to the opinion of an
examining psychologist, Dr. Christopher Royer, and gave more weight
to the opinion of Dr. Sandra Banks, who c
opinion after reviewing his report.

tiqued Dr. Royer's

The case law is clear that it

is within the ALJ's authority to choose which medical evidence to
credit and which to reject as long as there is a rational basis for
the decision.

Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999).

The ALJ may even elevate the opinion of a non-treating, non­
examining physician over that of a treating physician in an
appropriate case.

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

19

Here, neither Dr. Royer nor Dr. Banks were treating physicians
and, while Dr. Royer did have the benefit of one session with
intiff, he certainly does not occupy the status of a long-term
treating physician who has continuously observed the pat
protracted period of time.
1350 (3d. cir. 1987).

nt for a

See Rocco v. Heckler, 826 F.2d 1348,

Thus, our inquiry becomes simply whether

there is substantial evidence of record to justify the ALJ's
preference for Dr. Banks' opinion.

The ALJ's decision to elevate

Dr. Banks' opinion flowed from his perception that Dr. Royer's
findings of "marked" and extreme" mental limitations were
contradicted by his acknowledgments that, at the t
encounter with her, the Plaintiff's "as soc

of his one

ions were appropriate

to topic", her mental status was "fully oriented", she could recall
"remote personal information", and she did not exhibit "perceptual
disturbances or other gross psycopathy".

(R. 240) .

In addition,

Dr. Royer's assessment was inconsistent to some extent with that of
a treating physician, Dr. Thomas W. McLaughlin, who noted on
October 4, 2012 that Plaintiff "was awake, alert, and oriented to
time, place and person and was able to engage in appropriate
conversation, answer questions appropriately, and follow
directions."

(R.229).

The case law precludes this Court from substituting

s

judgment for that of the ALJ even if the Court would have reached a
different conclusion so long as the ALJ's decision is supported by

20

a quantum of

dence that a reasonable mind might accept as

adequate to support a conclusion.

Richardson v. Perales, supra.

Evaluating this record as a whole, the Court finds that a
reasonable mind could accept the ALJ's decision to place more
credence in Dr. Banks' opinion.

Accordingly, the Court must reject

Plaintiff's assignment of error on this point.
4.

Whether the ALJ's Finding that Plaintiff's Testimony
Regarding the Severity of Her Limitations was not Fully
Credible is Supported by Substantial Evidence?
Plaintiff asserts that the ALJ erred in finding that,

while "the claimant's medically determinable impairments could
reasonably be expected to cause the alleged symptoms, ... the
claimant's statements concerning the intensity, persistence, and
limiting effect of the symptoms are not entirely credible .... "
(R.22).

The ALJ explained that she reached that conclusion due to

various "inconsistencies in the record".
inconsistencies include:

(R.23).

(1) that the claimant's pr

These
ry care

hysician prescribed Cymbalta for her pain which Plaintiff
discontinued after only eight days despite the doctor's instruction
that the medication would take six to eight weeks to be effective;
(2) the record indicates that Plaintiff advised Dr. Royer on
October 25, 2012 that she had stopped using drugs in her early
twenties, but other evidence of record indicates that she was
treated for an abscess in her right wrist secondary to heroin and
21

cocaine injection on April 10-12, 2010 when she was 45 years of
age;

(3) the claimant testified (R.34) that she was not taking any

pain medication at her hearing be
severe, chronic pain;

the ALJ despite her claims of

(4) Dr. McLaughlin's findings regarding the

Plaintiff's strength, mobil

y, and flexibility, to which the ALJ

assigned significant weight, contradict Plaintiff's testimony
regarding her physical capacity; and (5) the Plaintiff's work
history contradicts her assertion of disability.
Conside

(R.23-24) .

ng the record as a whole, the Court finds that the ALJ's

explanation why he did not entirely credit Plaintiff's subjective
assessments of her limitations is rational and supported by
competent evidence of record.

The ALJ's reservations, particularly

with reference to Plaintiff's lack of treatment and failure to take
rescribed medication over a period of years, is certainly
probative that her symptoms may not be as severe as she contends.
ason v. Shalala, 994 F.2d 1058, 1068 (3d. Cir. 1993)

ting Welch

v. Heckler, 808 F.2d 264, 270 (3d. Cir. 1986). See also Mickles v.
Shalala, 29 F.3d 918, 930 Fourth Cir. 1994).
5.

Whether the ALJ Failed to Provide a Clear and Supported
RFC?

Plaintiff argues that the ALJ's determination that Plaintiff
could perform light work with various limitations was
insufficiently clear to support his assessment of her RFC.
Plaintiff's argument has two components:

22

(1) that the hypothetical

question submitted for the VE's consideration did not describe
"light work" as defined at 20 CFR 416.967(b); and (2) that the
LJ's determination that Plaintiff would be "off task" five percent
of the time is not supported by substantial evidence.
With respect to the adequacy of the hypothetical question and
whether its limitations describe "light work", 20 CFR

§

416.967(b)

provides:
ght work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects
weighting up to 10 pounds.

Even though the weight lifted

may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and
pulling of arm or leg controls.

To be considered capable

of performing a full or wide range of light work,

you

must have the ability to do substantially all of these
act

ties.

The Plaintiff's assignment of error here is that the ALJ improperly
determined that she could do light work.

The record indicates

otherwise.
The ALJ's hypothetical question to the VE asked her to assume

that Plaintiff could perform light work with numerous additional
limitations including: "the claimant can alternate sitting and
standing at will; stand and/or walk two to three hours per eight

23

hour work day; never kneel or crawl; occasionally bend,

stoop,

crouch, balance, and climb; avoid work at unprotected heights or
around dangerous moving machinery; perform routine,

repetitive one

or two step tasks; no complex reading or math; occasional
interaction with the public, coworkers, and supervisors; occasional
changes in the work setting; occasional decision-making; no fast
paced production quotas; and off task five percent of the time."
Thus, the ALJ was asking the VE to assume that Plaintiff could not
perform the full panoply of light work, but rather that she could
perform work that, while essentially light, was much more sharply
curtailed than light work.

We find that the ALJ's assessment of

Plaintiff's RFC, as reflected in his hypothetical question to the
VE,

was supported in virtually all aspects by evidence of record.

More than that is not required at Step V of the Disability
Determination Process.

Plummer v. Apfel,

supra, at 431.

Plaintiff also faults the ALJ's conclusion that she would be
off work five percent of the time.

She is correct that the record

contains no objective medical evidence that she would be off task
five percent of the time or,
time.

for that matter, any portion of the

The Court concludes that, because Plaintiff has produced no

evidence that her impairments would require her to be "off task"
for any portion of her time spent doing a job within her RFC,

her

argument that the AIJ should have found that she would be "off
task" more than five percent of the time is illogical.

24

The ALJ

appears to have been giving her subjective complaints some level of
credibility where the evidence of record did not require him to do
so.

For that reason, because even the five percent estimate finds

no support in the record, the ALJ's finding in this regard can be
no more than harmless error.
6.

Whether Substantial Evaluation (sic) Does not Support the
ALJ's Step V Evaluation?

Plaintiff argues here that the ALJ's requirement that the
Plaintiff work only at a job where she "can alternate sitting and
standing at will" is "too vague to determine the extent of
erosion on the occupational base." (R.21 and Doc. 11 at 21).

This

argument borders on the disingenuous.
The ALJ's directive that the Plaintiff may sit or stand "at
will" constitutes a clear direction that it is for t
determine when and for how long she sits or stands.

P

intiff to

There is no

indication that the VE was in any manner confused by this
directive.

Plaintiff's argument unaccountably suggests that the

LJ's direct

would require the Plaintiff to sit and stand for

specified periods of time.

Plaintiff's interpretation of t

ALJ's

"sit/stand at will" requirement is simply inaccurate and the Court
finds that the VE properly factored the "sit/stand at will"
requirement into her analysis of what jobs the Plaintiff could
erform.

Accordingly, the VE's assessment of the Plaintiff's

employability was appropriately credit by the ALJ.

25

7.

Whether the ALJ erred by not Making Specific Findings
Regarding Nicholson ' s Ability to Perform Basic Work­
related Activities as Required by SSR 85-15?

Plaintiff's final argument is based upon SSR 85 -15, a policy
statement promulgated by the SSA which , inter alia , advises that an
LJ should be cognizant that

( 1 ) the potential jo b base for those

mental impairments is limited ; and (2) mental impairments can
ake even simple tasks intolerable for some mentally impaired

persons.

Plaintiff conte nds that the ALJ did not adequately

consider "how Nich o lson ' s specific limitations would affect her

ability to perform the occupational demands of the three jobs

identified ."

( Doc . 11 at 24).

Plaintiff is clearly incorre ct in

this regard.

The rec o rd substan ti ates that the ALJ did,
Plaintiff's i dentified mental impairments.

in fact , consider

In his hypothetical

question to the VE , the ALJ specified that Plaintiff's work
capacity was limited to repetitive one or two step tasks ; that the
Plaint iff could tolerate only limited interaction with the public ,
co-workers , o r supervisors ; that th e Plaintiff be exposed to only
occasional changes in setting; that the Plaintiff engage in only
occ asional decision making; that Plaint iff not work in an
environment with fast -p aced production quotas; and that Plaintiff
be permitted to be off task up to five percent of th e time.
(R . 21).

Each of these l imitations that the ALJ built into the
26

hypothetical question to the VE was in recognition of Plaintiff's
impaired mental status.
logical extensions of
that affect
record.

Moreover, each of these limitations were
type and degree of mental impairments

intiff as supported by substant

(See pages 18-21 ante).

I evidence of

Accordingly, while

Plaintiff

ay disagree with the conclusions the ALJ reached regarding her
ental status, the Court, having reviewed the record thoroughly,
can only conclude that the method
both the Disabil

ALJ used was consistent with

Determination Process and SSR 85-15.

Conclusion.
For all the foregoing reasons, the
Commissioner to deny bene

ts

ision of the

this case is affirmed.

An Order

consistent with this determination will be filed contemporaneously
herewith.
BY THE COURT

Unit

27

States District