Brush v. Social Security Disability
Filing
20
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we have found all claimed errors to be without merit. Therefore, Plaintiffs appeal of the Acting Commissioners denial of benefits (Doc. 1) is denied. An appropriate Order is filed simultaneously with this Memorandum. Signed by Honorable Richard P. Conaboy on 6/23/15. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WENDY L. BRUSH,
:
:CIVIL ACTION NO. 3:14-CV-2143
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN, Acting
:
Commissioner of the Social
:
Security Administration,
:
:
Defendant.
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s pro se appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act.
(Doc. 1.)
She
originally alleged disability due to a number of physical and
mental impairments beginning on October 1, 2005, but amended the
onset date to January 26, 2011,.
(R. 21, 148.)
The Administrative
Law Judge (“ALJ”) who evaluated the claim concluded that
Plaintiff’s severe impairments of history of seizure and back pain
did not meet or equal the listings alone or in combination with
Plaintiff’s non-severe impairments.
(R. 24-25.)
The ALJ found
that Plaintiff had the residual function capacity (“RFC”) to
perform light work with certain limitations and that such work was
available through the date last insured, December 31, 2012.
26-30.)
(R. 30.)
(R.
The ALJ therefore denied Plaintiff’s claim for benefits.
With this action, Plaintiff argues that the decision of
the Social Security Administration is error for the following
reasons: 1) the ALJ failed to keep the records open as requested;
2) the ALJ erred by failing to properly evaluate her mental health
impairments; 3) the ALJ erred by failing to properly assess her
residual functional capacity; and 4) the ALJ erred by relying on
the vocational expert’s testimony.
(Doc. 15 at 4-7.)
For the
reasons discussed below, we conclude Plaintiff’s appeal of the
Acting Commissioner’s decision is properly denied.
I.Background
A.
Procedural Background
On January 8, 2013, Plaintiff protectively filed an
application for DIB.
(R. 21.)
As noted above, she now alleges
disability beginning on January 26, 2011.
(Id.)
In her
application for benefits, Plaintiff claimed her ability to work was
limited by epilepsy, carpal tunnel syndrome, anxiety and panic
attacks, depression, back injury, and headaches due to a car
accident.
(R. 148.)
19, 2013.
(R. 21.)
The claim was initially denied on February
Plaintiff filed a request for a review before
an ALJ on April 17, 2013.
(R. 21.)
On February 14, 2014,
Plaintiff appeared at a hearing before ALJ Jarrod Tranguch.
21.)
(R.
Vocational Expert Josephine Doherty also testified at the
hearing.
(Id.)
Plaintiff’s main representative through the
administrative process was Mario Davila, a non-attorney
representative from Binder and Binder.
2
(Id.)
At the ALJ hearing,
Plaintiff was represented by a Binder and Binder attorney, Jesse
Traugot.
(Id.)
The ALJ issued his unfavorable decision on April
25, 2014, finding that Plaintiff was not disabled under the Social
Security Act during the relevant time period.
(R. 30.)
On May 9, 2014, Plaintiff filed a Request for Review with the
Appeal’s Council.
(R. 17.)
The Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision on September 17, 2014.
(R. 1-6.)
In doing so, the ALJ’s decision became the decision of
the Acting Commissioner.
(R. 1.)
On November 7, 2014, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.
(Doc. 1.)
Defendant
filed her answer and the Social Security Administration transcript
on February 4, 2015.
(Docs. 11, 12.)
Plaintiff filed the document
we have construed as her supporting brief on April 30, 2015.
(Docs. 15, 16.)
2015.
Defendant filed her opposition brief on June 2,
(Doc. 17.)
Plaintiff did not file a reply brief and the
time for doing so has passed.
Therefore, this matter is ripe for
disposition.
B.
Factual Background
Plaintiff was born on October 3, 1973, and was thirty-nine
years old on the date last insured.
school education.
mail carrier.
1.
(R. 29.)
(R. 17.)
Plaintiff has a high
Plaintiff has past relevant work as a
(Id.)
Impairment Evidence
3
As noted above, Plaintiff identifies many impairments in her
application for benefits.
(R. 148.)
The ALJ addressed Plaintiff’s
claims regarding her history of seizures, back pain, carpal tunnel
syndrome, headaches, asthma, depression, anxiety and panic attacks.
(R. 24.)
Plaintiff’s claimed errors involve her seizure disorder,
mental impairments, the ALJ’s RFC function determination
specifically related to her abilities to sit, stand and walk, and
his step five determination related to Plaintiff’s ability to do
simple, unskilled work.1
(Doc. 15 at 4-7.)
Therefore, we focus
our review of Plaintiff’s impairments on her history of seizures,
back problems, and mental impairments during the relevant time
period of January 26, 2011, through December 31, 2012.2
a.
Seizure and Back Impairments
On May 13, 2009, Plaintiff was seen at Geisinger’s emergency
department because she had a seizure about thirty minutes before
arrival.
(R. 251.)
The seizure lasted three to four minutes and
Plaintiff was reported to have shaking all over, “stiff as a board,
[and] foaming at the mouth.”
(Id.)
injuries and all systems were normal.
Plaintiff denied pain or other
(R. 252-53.)
On November 19, 2009, Frank G. Gilliam, M.D., saw Plaintiff on
the referral of Dr. Janusz Wolanin, Plaintiff’s primary care
1
Plaintiff does not provide citation to medical evidence of
record.
2
To put these impairments into context, we review some
records outside the relevant time period.
4
physician, and noted that Plaintiff presented with a history of
possible seizures since 1999 and she wanted to “know what is going
on.”
(R. 198, 205.)
She reported that a typical event consisted
“of a ‘weird feeling’ in her head quickly followed by anxiety, a
sense that she is paralyzed and disconnected from her surrounding.”
(Id.)
Plaintiff stated that this occurred once or twice a week.
(Id.)
She and her mother also described at least two GTC seizures
in the past.3
(Id.)
Plaintiff had been taking Keppra for the
seizures for the preceding four months (she had not taken anything
previously), and she reported increased fatigue and sedation.
(Id.)
Dr. Gilliam noted that “current relevant comorbidities
include depression.”
(R. 198.)
Review of systems, physical
examination, and mental status were normal.
(R. 200.)
Dr. Gilliam
considered it a possibility that Plaintiff had temporal lobe
epilepsy.
(R. 200.)
He changed Plaintiff’s medication and,
discussed with her that if the seizures did not stop, he would
consider video/EEG and possible MRI.
(Id.) His diagnosis for the
visit was “seizures, complex partial, intractable.”
(R. 203.)
On September 17, 2010, Plaintiff was seen by Geisinger’s
Trauma Service after a motor vehicle accident for evaluation of
facial trauma.
(R. 247.)
The diagnosis was facial contusion,
3
“GTC seizures” are generalized tonic-clonic seizures which
involve the entire body. They are also known as grand mal
seizures.
http://www.nlm.nih.gov/medlineplus/ency/article/000695.htm.
5
closed head injury, seizure, and facial abrasions.
(R. 249.)
On the same day, Plaintiff had a head and cervical spine CT as
a result of the motor vehicle accident.
(R. 265.)
The head CT was
normal and the cervical spine CT showed no acute intracranial
abnormality and no traumatic osseous injury to the cervical spine.
(R. 265-66.)
CT scans of the chest, abdomen and pelvis resulted in
the following impression: “Mild indentation of central portion of
superior endplates of T10 and T11 vertebral bodies without apparent
discrete fracture . . . . No surrounding hematoma or soft tissue
swelling to suggest acute etiology.
nodes.
These may represent Shmorl’s
However, less likely differential of subtle compression
fractures is not entirely excluded.”
(R. 272.)
On September 29, 2010, Plaintiff saw her primary care
physician, Janusz Wolanin, M.D., presenting with injury related to
her car accident.
lower back pain.
(R. 466.)
(Id.)
Plaintiff reported right chest and
She also reported that symptoms had been
absent prior to the injury.
(Id.)
On examination, Plaintiff had
mild tenderness in her spine bilaterally.
(R. 467.)
muscoloskeletal examination was otherwise normal.
The
(Id.)
Plaintiff’s assessment was “Contusion of Chest Wall,” and “Backache
Unspec.”
(Id.)
On November 22, 2010, Plaintiff saw Dr. Wolanin with
complaints of back pain, worse with movement, and difficulty
sleeping.
(R. 459.)
He observed that Plaintiff appeared well and
6
had no signs of present distress.
(Id.)
On physical examination,
Dr. Wolanin reported the following musculoskeletal findings:
Walks with a normal gait, ttp over entire
paraspinal musc Upper extremities: Normal to
inspection and palpation. No tenderness over
the upper extremities bilaterally. No
evidence of lymphedema. No instability
bilaterally. Strength: Normal and symmetric.
Normal muscle tone bilaterally. Normal
muscle bulk bilaterally. Full ROM
bilaterally. Lower Extremities: Normal to
inspection and palpation. No tenderness of
the lower extremities bilaterally. No
instability bilaterally. Strength: Normal
and symmetric. Normal muscle tone
bilaterally. Muscle bulk is normal
bilaterally. Full ROM bilaterally.
(R. 461.)
He made the following neurological findings: “Alert and
oriented x3.
Mood is normal.
Attention is WNL.
Affect is normal.
Memory is intact.
Sensation intact to light touch.
patellar DTR’s are brisk and symmetrical.
Romberg’s test is intact.”
(Id.)
Achilles and
Coordination is normal.
Dr. Wolanin’s assessment was
“Backache Unspec.” “Insomnia Unspecified,” and “Anxiety State
Unspec.”
(Id.)
On December 20, 2010, Plaintiff again saw Dr. Wolinan for
follow up after her accident.
(R. 457.)
Plaintiff reported that
“Flexeril makes her loopy,” Soma had helped in the past, and she
still had pain.
(Id.)
Musculoskeletal examination findings were
essentially the same as recorded at Plaintiff’s November 22, 2010,
visit.
(R. 458.)
On January 17, 2011--Plaintiff’s first medical encounter
7
during the relevant time period--Dr. Wolinan noted that Plaintiff
continued to complain of neck pain, decreased range of motion, and
stiffness.
(R. 454.)
“[a]ppears well.
Dr. Wolinan observed that Plaintiff
No signs of apparent distress present.
Speech is
clear and appropriate for age. . . . Patient is cooperative.
Facial expression appears pleasant.”
(Id.)
On physical
examination, Plaintiff’s neck was “[n]ormal to inspection.
Unremarkable on palpation.
Trachea midline.”
(R. 455.)
Dr.
Wolinan recorded the following muscoloskeletal examination
findings: “Walks with normal gait.
inspection and palpation.
Normal and symmetric.
bilaterally.
No evidence of lymphedema.
Full ROM
Normal to inspection and
Strength: Normal and symmetric.
bilaterally.
Strength:
Normal muscle tone bilaterally.
Lower Extremities:
palpation.
Upper Extremities: Normal to
Full ROM bilaterally.”
Normal muscle tone
(Id.)
He recorded the
following neurological examination findings: “Alert and oriented
x3.
Mood is normal.
Attention is WNL.
Affect is normal.
Memory is intact.
Sensation intact to light touch.
patellar DTR’s are brisk and symmetrical.
Romberg’s test is intact.”
(Id.)
Achilles and
Coordination is normal.
Dr. Wolinan’s assessment was
“Backache Unspec,” “Contusion Chest Wall,” and “Sprains & Strains
Neck.”
(Id.)
On February 16, 2011, Plaintiff presented to Dr. Wolinan with
increasing back pain.
(R. 451.)
She reported that she also had
8
numbness in her lower extremities.
was unremarkable.
(R. 452.)
(Id.)
Examination of the neck
Musuloskeletal examination findings
were similar to those of the January visit.
assessment was “Backache Unspec.”
x-ray of the lumbar spine.
(Id.)
(Id.)
Dr. Wolinan’s
Dr. Wolinan recommended
(Id.)
On March 2, 2011, Plaintiff had EMG because of left leg pain.
(R. 450.)
All motor studies were normal and needle examination of
the left and low lumbar paraspincal muscles was normal.
(R. 450.)
The Impression was “[n]ormal study, no electrodiagnostic evidence
of neuropathy, myopathy or radiculopathy.”
date, cervical spine x-rays were normal.
(Id.)
(R. 449.)
On the same
Lumbar spine
x-rays showed mild levoscoliosis of the lumbar spine and the
remainder of the study was normal.
(R. 448.)
Thoracic spine
studies showed mild dextroscoliosis of the thoracic spine and the
remainder of the study was normal.
(R. 447.)
On March 14, 2011, Plaintiff saw Dr. Wolinan for routine
follow up.
pain.
(R. 444.)
(Id.)
on palpation.
She continued to complain of back and neck
Examination of her neck was normal and unremarkable
(R. 445.)
Muskuloskeletal examination showed the
following: “Walks with a normal gait. Spine: Moderate midline
tenderness of the spine.
and palpation.
symmetric.
Upper Extremities: Normal to inspection
No evidence of lymphedema.
Normal muscle tone bilaterally.
Lower Extremities:
Strength: Normal and
Full ROM bilaterally.
Normal to inspection and palpation.
9
Strength:
Normal and symmetric.
bilaterally.”
(Id.)
Normal muscle tone bilaterally.
Full ROM
Dr. Wolinan’s assessment was “Backache
Unspec,” and “Sprains & Strains Neck.”
(Id.)
Plaintiff had another regular monthly follow up visit with Dr.
Wolinan on April 6, 2011.
(R. 441.)
She continued to complain of
back pain and Dr. Wolinan noted that Plaitniff was extremely
anxious due to her friend’s death the day before.
(Id.)
Findings
regarding Plaintiff’s musculoskeletal examination was the same as
at the previous visit except that Dr. Wolinan did not note midline
tenderness of the spine.
(R. 442.)
Unspec,” and “Anxiety State Unspec.”
Assessment was “Backache
(Id.)
At her regular visit on May 4, 2011, Dr. Wolinan reported that
Plaintiff was doing well and had dental work the day before.
435.)
(R.
Subjective reports and objective physical findings were
unremarkable.
(R. 435-36.)
Assessment was “Teeth and Supporting
Structures Disorders,” “Backache Unspec,” and “Anxiety State
Unspec.”
(Id.)
On June 1, 2011, Plaintiff saw Dr. Wolinan for a routine
visit.
(R. 432.)
Dr. Wolinan noted that Plaintiff was doing well
with no new complaints but she continued to report chronic pain and
anxiety.
(Id.)
Dr. Wolinan recorded that Plaintiff appeared well
and her physical examination was unremarkable, including normal
mood and affect.
(Id.)
“Anxiety State Unspec.”
Assessment was “Backache Unspec,” and
(Id.)
10
On June 29, 2011, Dr. Wolanin noted that Plaintiff still had
back pain that “comes and goes.”
(R. 429.)
He also noted that
medication helped and that Plaintiff needed an EEG.
(Id.)
Otherwise, Dr. Wolanin’s office visit notes and assessment are the
same as recorded in early June.
(R. 429-30.)
On July 14, 2011, Plaintiff had an EEG at the request of Dr.
Wolanin because of Plaintiff’s history of seizures.
impression was “Normal awake and drowsy EEG.”
(R. 496.)
The
(Id.)
Plaintiff had another routine office visit with Dr. Wolinan on
July 22, 2011.
(R. 423.)
Plaintiff complained of congestion,
cough, abdominal discomfort, and other symptoms which she had for
three days and were similar to those recently experienced by her
sister.
(Id.)
Otherwise, Dr. Wolanin’s office visit notes and
assessment are the same as recorded in early June.
(R. 423-24.)
On August 3, 2011, Plaintiff saw Dr. Wolanin for follow up.
(R. 420.)
She continued to complain of chronic pain that
interrupted her sleep.
(Id.)
reporting was unremarkable.
Otherwise Plaintiff’s subjective
(Id.)
Dr. Wolanin’s examination was
also unremarkable, including his musculoskeletal exam.
(R. 421.)
His assessment was “Backache Unspec,” “Insomnia Unspecified,” and
“Anxiety State Unspec.”
(Id.)
On August 17, 2011, Plaintiff saw Dr. Wolanin for a routine
visit.
(Id.)
(R. 417.)
He reported that Plaintiff was doing well.
She was recovering from hernia surgery, had no new
11
complaints but still had chronic pain and anxiety.
(Id.)
Plaintiff’s objective reporting was otherwise unremarkable.
(Id.)
Dr. Wolinan observed that Plaintiff appeared well and had no signs
of present distress.
unremarkable.
(Id.)
(R. 418.)
His phsyical examination was
Dr. Wolanin’s assessment included
“Backache Unspec,” “Insomnia Unspecified,” and “Anxiety State
Unspec.”
(Id.)
On September 9, 2011, Plaintiff saw Dr. Wolanin for a routine
visit.
(R. 414.)
He reported that she was doing well but had
woken up that morning with congestion and sinus pressure and was
requesting an antibiotic.
(Id.)
Plaintiff had a fever.
(Id.)
Otherwise, Plaintiff did not report any difficulties, and Dr.
Wolanin’s physical examination was unremarkable.
(R. 414-15.)
On October 3, 2011, Plaintiff saw Dr. Wolanin for follow up.
(R. 406.)
He recorded that Plaintiff reported she had been feeling
fine since her last visit–-“No seizures recently.
fatigue, or headache.”
were unremarkable.
recorded.
(Id.)
No dizziness,
Subjective and objective evaluations
(R. 406-07.)
No Assessment or Plan was
(See R. 407.)
On October 24, 2011, Plaintiff saw Dr. Wolanin for a routine
visit.
(R. 401.)
unremarkable.
Subjective and objective evaluations were
(R. 401-02.)
“Anxiety State Unspec.”
Assessment was “Backache Unspec,” and
(R. 402.)
At an office visit to Dr. Gilliam on October 24, 2011,
12
Plaintiff again reported she experienced events she described as a
a “‘weird feeling’ in her head quickly followed by anxiety, a sense
that she is paralyzed and disconnected from her surrounding around
bedtime, states it feels ‘like a wave’ and a ‘sparkler going off my
head.’” (R. 206.)
Plaintiff reported she did not know how long the
seizure lasted but estimated two minutes.
(Id.) She stated this
type of seizure occurred once or twice a month.
(Id.)
Plaintiff
also reported two episodes where she had very vivid auditory/visual
hallucinations: “one episode in which she was awake, had recently
started Seroquel, and talked to ‘shadows’ and lasted 30 minutes and
another episode a few weeks ago when she was going to sleep (20
minutes), where she became very fearful and saw shadows.”
(Id.)
Plaintiff had the same concerns and comorbidities as in November
2009.
(R. 206.)
Prior evaluations included normal brain CT and
abnormal EEG by Plaintiff’s report but Dr. Gilliam did not have the
report.
(Id.)
Plaintiff had not had Video/EEG or
neuropsychological testing.
(Id.)
status examinations were normal.
Plaintiff’s physical and mental
(R. 207-08.)
at the time–-one on a scale of one to ten.
She had a headache
(R. 209.)
Dr. Gilliam
thought the longer events were most likely not seizure in nature
but could be related to adverse effects of Seroquel or acute
psychosis.
(R. 208.)
Plaintiff was encouraged to follow up with
psychiatry regarding the two longer events.
(Id.)
The plan was to
change medications and admission to the epilepsy monitoring unit
13
was discussed as a possibility if Plaintiff continued to have loss
of awareness or lapses in time.
(Id.)
On December 5, 2011, Plaintiff saw Dr. Wolanin for follow up.
(R. 395.)
He recorded that Plaintiff had no new complaints but
reported she still had chronic pain and anxiety.
and objective evaluations were unremarkable.
(Id.)
Subjective
(R. 395-96.)
Assessment was “Insomnia Unspecified,” “Backache Unspec,” and
“Anxiety State Unspec.”
(R. 396.)
On January 4 and January 30, 2012, Plaintiff saw Dr. Wolanin
for routine visits.
(R. 386, 392.)
complaints.
Subjective and objective evaluations were
unremarkable.
(Id.)
She was doing well with no new
(R. 386-87, 392-93.)
Assessment was “Insomnia
Unspecified,” “Backache Unspec,” and “Anxiety State Unspec.”
(R.
387, 393.)
On March 14, 2012, Plaintiff was seen by Geisinger’s Trauma
Service after a motor vehicle accident.
(R. 243-44.)
Plaintiff
struck her head and did not remember the accident and was not aware
if she lost consciousness or if she had a seizure.
(R. 244.)
No
acute intervention was necessary at the time and Plaintiff was
diagnosed with head contusion.
(R. 247.)
On March 16, 2012, Plaintiff went to Dr. Wolanin for follow up
after the car accident.
(R. 371.)
He reported Plaintiff was
“[u]nsure if she had a seizure because she does not remember the
accident; has history of seizures and taking medications.
14
Complaining of chronic low back pain; states it has not worsened
since MVA.
(Id.)
No other injuries.
All x-rays . . . were negative.”
Physical examination of Plaintiff’s musculoskeletal system
showed the following: “Walks with a normal gait.
Upper
extremities: Normal to inspection and palpation.
Strength: Normal
and symmetric.
bilaterally.
Normal muscle tone bilaterally.
Full ROM
palpation.
Lower Extremities: Normal to inspection and
Strength: Normal and symmetric.
bilaterally.
Full ROM bilaterally.”
Normal muscle tone
(R. 372.)
On April 25, 2012, Plaintiff saw Dr. Wolanin for follow up.
(R. 368.)
He noted that she was doing well.
(Id.)
He also noted
that Plaintiff reported she “[r]einjured old orbit blowout fracture
in MVA.
(Id.)
With pain; asking for something for breakthrough pain.”
Subjective and objective evaluations were unremarkable.
368-69.)
(R.
Assessment was “Backache Unspec,” “Insomnia Unspecified,”
and “Anxiety State Unspec.”
(R. 369.)
On May 11, 2012, Plaintiff saw Dr. Wolanin for a routine
visit.
(R. 365.)
He recorded that Plaintiff reported she was
feeling better, had less pain from the car accident, she was still
not driving, and had a follow up appointment with a neurologist the
next month.
unremarkable.
(Id.)
Subjective and objective evaluations were
(R. 365-66.)
Assessment was “Fx Skull/face Mult
Closed W/o intracranial inj. No loss consc,”
“Backache Unspec,”
“Insomnia Unspecified,” and “Anxiety State Unspec.”
15
(R. 366.)
On June 6, 2012, Plaintiff saw Dr. Wolanin for follow up.
(R.
362.)
He reported she was doing well with no new complaints.
(Id.)
Objective and subjective findings were similar to those of
her previous visits.
(R. 362-63.)
Dr. Wolanin’s assessment was
“Backache Unspec,” and “Anxiety State Unspec.”
(R. 363.)
On June 22, 2012, Plaintiff saw Dr. Wolanin for follow up.
(R. 359.)
Though she was doing well with no new complaints,
Plaintiff reported chronic pain.
(Id.)
Subjective and objective
evaluations were unremarkable.
(R. 359-60.)
“Backache Unspec,” and “Anxiety State Unspec.”
Assessment was
(R. 360.)
On July 2, 2012, Plaintiff saw Dr. Wolanin for follow up.
343.)
(R.
He noted that she continued to have chronic pain and
anxiety.
(Id.)
He also observed that she appeared well and had no
signs of present distress.
unremarkable.
(R. 344.)
(Id.)
His physical examinatin was
Dr. Wolanin’s assessment included
“Epilepsy Unspec W/o Intractable,” “Backache Unspec,” and “Anxiety
State Unspec.”
(Id.)
On July 27, 2012, Plaintiff was seen at the Geisinger
radiology department for diagnostic imaging on Dr. Wolanin’s
referral because of lumbar pain and thoracic back pain.
35.)
(R. 234-
Plaintiff had had a motor vehicle accident on March 14, 2012.
(R. 236.)
Findings regarding the lumbosacral spine included
vertebral bodies maintained in height and alignment, intervertebral
disk spaces preserved, paraspinal soft tissues within normal
16
limits.
(Id.)
(Id.)
The Impression was “[n]o acute bony abnormality.”
Findings regarding the thoracic spine included normal
vertebrae in height and alignment, nonvertebral disk spaces
preserved, paraspinal soft tissues within normal limits, and
Schmorl’s nodes were seen in a few midthoracic vertebrae.
237.)
The Impression was “[n]o acute bony abnormality.”
(R.
(Id.)
CT scan of the chest showed no current pulmonary nodules and no
acute process.
(R. 238.)
On August 1, 2012, Plaintiff was seen by Dr. Wolanin for
follow-up.
(R. 337.)
complaints.
unremarkable.
(Id.)
She was again doing well with no new
Subjective reports and objective findings were
(R. 337-38.)
Dr. Wolanin’s assessment included
“Epilepsy Unspec W/o Intractable,” “Insomnia Unspecified,” and
“Anxiety State Unspec.”
(Id.)
On August 29, 2012, Plaintiff again saw Dr. Gilliam.
216.)
(R.
Plaintiff reported she was having seizures twice a week and
also reported increased anxiety.
(R. 216.)
Plaintiff stated
had recently had a single car accident where her car rolled.
she
(Id.)
Plaintiff’s physical and mental status examinations were normal.
(R. 217-18.)
In his “Impression/Plan,” Dr. Gilliam notes that
Plaintiff “did not come for the scheduled video/EEG, but she states
she is ready at this time.”
(R. 218.)
Plaintiff was very anxious and tearful.
He also noted that
(Id.)
Plaintiff’s
medication was changed and she was to be scheduled for a video/EEG.
17
(Id.)
2012.
Plaintiff was to return in four months, around December 29,
(R. 219.)
On September 24, 2012, Planitiff saw Dr. Wolanin for follow
up. (R. 325.)
complaints.
She reported she was doing well with no new
(Id.)
were unremarkable.
On physical examination, Dr. Wolanin findings
His assessment included “Epilepsy Unspec W/o
Intractable,” “Backache Unspec,” “Insomnia Unspecified,” and
“Anxiety State Unspec.”
(Id.)
On October 22, 2012, Plaintiff saw Dr. Wolanin for follow up.
(R. 317.)
He noted Plaintiff was doing well with no new
complaints, and Plaintiff reported she still had chronic pain and
anxiety.
(Id.)
Other than that general notation, no problems were
recorded based on Plaintiff’s subjective reporting.
(Id.)
Dr.
Wolanin’s objective examination and observation was unremarkable.
Dr. Wolanin’s assessment included “Epilepsy Unspec W/o
Intractable,” “Backache Unspec,” “Insomnia Unspecified,” and
“Anxiety State Unspec.”
(Id.)
On November 19, 2012, Plaintiff saw Dr. Wolinan.
The visit was unremarkable.
(R. 356-57.)
(R. 357.)
The Assessment was
“Hypertrigliceridemia Pure,” “Epilepsy Unspec W/o Intractable,”
“Asthma Unspec W/o Status Asthmaticus,” and “Insomnia Unspecified.”
(R. 357.)
On December 17, 2012–-the last medical encounter during the
relevant time period--Plaintiff saw Dr. Wolanin for follow up.
18
(R.
353.)
He noted she was doing well but was complaining of nausea
after starting cholesterol medication.
(Id.)
Other than the
nausea, subjective reporting was unremarkable.
observed that Plaintiff “[a]ppears well.
distress present.
Dr. Wolanin
No signs of apparent
Speech is clear and appropriate for age. . . .
Patient is cooperative.
(Id.)
(Id.)
Facial expression appears pleasant.”
Dr. Wolinan recorded the following muscoloskeletal
examination findings: “Walks with a normal gait.
Upper
Extremities: Normal to inspection and palpation.
Strength: Normal
and symmetric.
bilaterally.
Normal muscle tone bilaterally.
palpation.
Lower Extremities:
Normal to inspection and
Strength: Normal and symmetric.
bilaterally.
Full ROM
Full ROM bilaterally.”
Normal muscle tone
(Id.)
He recorded the
following neurological examination findings: “Alert and oriented
x3.
Mood is normal.
Attention is WNL.
Affect is normal.
Memory is intact.
Sensation intact to light touch.
patellar DTR’s are brisk and symmetrical.
Romberg’s test is intact.”
(Id.)
Achilles and
Coordination is normal.
Dr. Wolanin’s assessment was
“nausea alone,” “Hypertrigliceridemia Pure,” “Asthma Unspec W/o
Status Asthmaticus,” and “Insomnia Unspecified.”
(R. 354.)
Records from Dr. Wolanin for the period January 25, 2013, to
August 2, 2013, which follow the date last insured of December 31,
2012, do not suggest information pertinent to the relevant time
period. (R. 510-533.)
19
b.
Mental Impairments
As reviewed above, Plaintiff was assessed to have anxiety at
many of her office visits with Dr. Wolanin.
Our review of the
record shows that Plaintiff rarely presented with symptoms.
Most
often Plaintiff appeared well with no signs of distress, she had
clear and appropriate speech, was cooperative and had a pleasant
facial expression.
(See, e.g., R. 353-54, 454-55.)
Her
neurological examinations routinely found her to be alert and
oriented with normal mood and affect, intact memory, and attention
within normal limits.
(See, e.g., 354, 455.)
On rare occasions Plaintiff presented with symptoms of
anxiety.
For example, on April 6, 2011, Dr. Wolinan noted that
Plaintiff was extremely anxious due to her friend’s death the day
before (R. 441), and on September 12, 2012, Plaintiff presented to
Dr. Wolanin with chest pain and he noted that Plaintiff was very
anxious and unable to calm down (R. 329).
In an office visit with
Dr. Gilliam on August 29, 2012, he noted that Plaintiff was very
anxious and tearful.
(R. 218.)
Medical records submitted also show that Plaintiff sought a
“psych referral” when she visited Rosaline Riaz, M.D., as a new
patient on January 10, 2014.
2.
(R. 484.)
Opinion Evidence
Dr. Wolanin completed a Multiple Impairment Questionnaire on
November 18, 2013.
(R. 474-481.)
20
He stated that he had diagnosed
Plaintiff with epilepsy, chronic back pain, depression, anxiety
disorder, insomnia, asthma, and hyperlipidemia.
noted that her prognosis was guarded.
(Id.)
(R. 474.)
He
Dr. Wolinan reported
that the following clinical findings supported his diagnosis: “Pt.
highly anxious; fearful of surrounds; tenderness along paraspinals,
most pronounced in C-spine and L-spine; Decrease ROM through spine
secondary to pain.”
(Id.)
Dr. Wolinan pointed to the following
laboratory and diagnostic test results as supportive of his
diagnosis: “Pt. followed by neurology for epilepsy; CT scan of Cspine shows mild degenerative joint disease; x-ray lumbar spine
shows mild levoscoliosis.”
(R. 475.)
The main symptoms identified
were back pain, visual/auditory hallucinations, and fatigue–symptoms which Dr. Wolinan found to be consistent with Plaintiff’s
impairments.
(Id.)
On a scale of 0-10, Dr. Wolinan assessed
Plaintiff’s pain to be 5-6 and her fatigue to be 2-3.
(R. 476.)
He opined that Plaintiff could do a full time job that required her
to keep her neck in a constant position, that pain would
periodically interfere with her attention and concentration, and he
expected her impairments would last at least twelve months.
478.)
(R.
Dr. Wolinan noted that Plaintiff was “very anxious” and this
contributed to the severity of Plaintiff’s symptoms and functional
limitations.
(Id.)
(R. 479.)
He did not believe she was a malingerer.
He further opined that her impairments were likely to
produce good days and bad days and that she would be absent from
21
work about two to three times per month as a result of her
impairments or treatment.
(R. 480.)
The earliest date he believed
the description of symptoms and limitations in the questionnaire
applied was April 2005.
(R. 480.)
On February 15, 2013, John Rohar, Ph.D., completed the
Disability Determination Explanation.
(R. 99-107.)
He considered
evidence from Dr. Wolanin, Dr. Gilliam, Susanna Ogin (Plaintiff’s
mother), and Plaintiff.
(R. 100-01.)
He determined that Plaintiff
had the severe impairments of epilepsy and disorders of the back,
and the non-severe impairments of anxiety disorders and affective
disorders.
(R. 102.)
He analyzed Plaintiff’s mental health
impairments using a Psychiatric Review Technique for the date last
insured.
3.
(R. 102-03.)
Function Report and Hearing Testimony
Plaintiff’s mother, Suzanna Ogin, completed a “Function Report
- Adult - Third Party” on January 21, 2013.
(R. 157-64.)
Ms. Ogin
reports that Plaintiff’s conditions impair her ability to work as
follows:
She has panic attacks, a lot of pain from 2
car accidents, headaches, unable to sleep
properly, suffers from epilepsy, anxiety,
can’t drive or operate vehicle under doctor’s
orders. Carpal tunnel, broken bones w[ith]
plate & screws. Had injury (couple)
reconstructive surgery to face,
forgetfulness, seeing and hearing things that
aren’t real.
(R. 157.)
Ms. Ogin noted that Plaintiff has a hard time doing
22
house and yard work because she is constantly fighting headaches,
pain and anxiety, and she does not have the energy to do much
because her medications make her tired.
(R. 159-60.)
She checked
every activity listed as being affected by Plaintiff’s conditions
except understanding, following instructions, and getting along
with others.
(R. 162.)
At the ALJ hearing on February 14, 2014, Plaintiff’s attorney
identified Plaintiff’s seizure disorder as well as her back and
neck disorders and various psychological issues as the bases of
Plaintiff’s inability to work (R. 43.)
Plaintiff testified that
the following problems have prevented her from working since
January 2011:
seizures, the grogginess from related medications,
and symptoms associated with the aftermath of a seizure like
feeling “wiped out” and memory loss; back problems; and carpal
tunnel.
(R. 48.)
She said that her symptoms increased after her
2012 car accident, including hallucinations.
(R. 49.)
She said
that even before the accident–-from January 2011 to the accident–she didn’t work because of medications and seizures and she was
having hallucinations.
(R. 50.)
At the time of her testimony, she
reported that she experienced seizures a couple times per month.
(R. 50.)
She reported that she had hallucinations associated with
seizures about a year before the hearing.
(Id.)
Plaintiff testified that she had recently started to see a
psychiatrist or psychologist and had seen the provider twice on a
23
monthly basis.
4.
(R. 54.)
ALJ Decision
By decision of April 25, 2014, ALJ Tranguch determined that
Plaintiff was not disabled as defined in the Social Security Act
through December 31, 2012, the date last insured. (R. 30.)
the following findings of fact and conclusions of law:
1.
The claimant last met the insured status
requirements of the Social Security Act
on December 31, 2012.
2.
The claimant did not engage in
substantial gainful activity during the
period from her alleged onset date of
January 26, 2011 through her date last
insured of December 31, 2012 (20 CFR
404.1571 et seq).
3.
Through the date last insured, the
claimant had the following severe
impairment: reported history of seizures
and back pain (20 CFR 404.1520(c)).
4.
Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of
the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5.
After careful consideration of the
entire record, the undersigned finds
that, through the date last insured, the
claimant had the residual functional
capacity to perform a range of light
work as defined in 20 CFR 404.1567(b).
She could have occasionally lifted and
carried up to 20 pounds and frequently
lifted and carried 10 pounds. She could
have occasionally used upper extremities
for pushing and pulling, such as
operating levers or hand controls. She
24
He made
could have occasionally balanced,
bended, kneeled, stooped, crouched,
crawled and used ramps and climbed
stairs. She would have been limited to
occasional overhead reaching. She
should have avoided concentrated
exposure to vibrations and wet or
slippery conditions. She should have
avoided occupations that required
climbing ladders, ropes, or scaffolds.
She should have avoided concentrated
exposure to potential pulmonary or
respiratory irritants, such as fumes,
odors, dusts, gases, and work
environments with poor ventilation. She
should have avoided occupations in which
she would have been exposed to hazards,
such as unprotected heights and
dangerous, moving machinery. She could
have performed work that is described as
unskilled, involving simple, routine
tasks that are not performed in a fastpaced production environment and she
could have performed work that is
considered low stress, which requires
only occasional simple decision making
and occasional changes in the work
duties or work setting.
6.
Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).
7.
The claimant was born on October 3, 1973
and was 39 years old, which is defined
as a younger individual age 18-49, on
the date last insured (20 CFR 404.1563).
8.
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).
9.
Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
25
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).
10.
11.
(R. 23-30.)
Through the date last insured,
considering the claimant’s age,
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
and 404.1569(a)).
The claimant was not under a disability,
as defined in the Social Security Act,
at any time from January 26, 2011, the
amended alleged onset date, through
December 31, 2012, the date last insured
(20 CFR 404.1520(g)).
In addition to her severe impairments, the ALJ
determined that Plaintiff also had a history of carpal tunnel
syndrome, headaches, and asthma.
(R. 24.)
Giving great weight to
the Psychiatric Review Technique form completed on February 15,
2013, by Dr. John Rohar, a consulting doctor for the State Agency,
the ALJ found that Plaintiff’s mental impairments of depression,
anxiety, and panic attacks, considered singly and in combination,
did not cause more than minimal limitations.
(R. 24-25.)
The ALJ found that Plaintiff’s medically determinable
impairments could be expected to cause her alleged symptoms but her
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
explained in this decision.”
(R. 27.)
The ALJ stated that the
evidence of record did not support the alleged level of incapacity.
26
(Id.)
With specific citation to the record, he points to many
bases for his conclusion that Plaintiff’s alleged symptoms and
limitations are not well supported by the objective medical
evidence.
(R. 27-28.)
As for opinion evidence, the ALJ gave limited weight to the
opinion of Dr. Wolinan set out in the Multiple Impairment
Questionnaire because his objective findings did not support the
significant limitations and expected absences reported.
(R. 28.)
The ALJ also gave limited weight to the form completed by
Plaintiff’s mother because there was no evidence that she was a
medical professional or was otherwise qualified to assess
functional limitations and she also would be biased to support her
daughter’s claim.
(R. 28.)
The ALJ noted that he took into account Plaintiff’s credibly
established limitations in determining his RFC.
(R. 28.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.4
It is necessary for the
4
“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,
27
Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
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 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
Id.
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to demonstrate
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).
28
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. 29-30.)
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).
means “more than a mere scintilla.
Substantial evidence
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
29
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
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 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
30
exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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.
31
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
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
32
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.”
B.
Id.
Plaintiff’s Alleged Errors
As set out above, Plaintiff argues that the decision of the
Social Security Administration is error for the following reasons:
1) the ALJ failed to keep the records open as requested; 2) the ALJ
erred by failing to properly evaluate her mental health
impairments; 3) the ALJ erred by failing to properly assess her
residual functional capacity; and 4) the ALJ erred by relying on
the vocational expert’s testimony.
(Doc. 15 at 4-7.)
Although an
ALJ has a heightened duty to develop the record and explore
relevant facts where a claimant is unrepresented at a hearing,
Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003); Dobrowolsky,
606 F.2d at 406, no heightened duty was triggered here because
Plaintiff, who proceeds pro se on her appeal, was represented at
her hearing (see R.36).
However, because Plaintiff now proceeds
pro se, we liberally construe her filings pursuant to Haines v.
Kerner, 404 U.S. 519, 521 (1972).
The Court considers Plaintiff’s
claimed errors with this principle in mind.5
5
Although Plaintiff proceeds pro se, the document we have
construed as the brief in support of her appeal (Doc. 15) is almost
a verbatim recitation of the errors asserted before the Appeals
Council by Plaintiff’s representative, Shaun Beach, of the Binder &
Binder law firm. (R. 180-84.)
33
1.
Failure to Keep Record Open
Plaintiff first contends the ALJ erred because he did not keep
the record open as Plaintiff had requested. (Doc. 15 at 4.)
Plaintiff notes the request was based on an EEG study scheduled for
April 14, 2014. (Id.)
We conclude this error is without merit in
that Plaintiff’s date last insured was December 31, 2012, and the
EEG scheduled for April 14, 2014, would not provide evidence
relevant to the time period at issue.
As Defendant argues,
Plaintiff must establish that she became disabled prior to the
expiration of her insured status.
(Doc. 17 at 11 (citing 42 U.S.C.
§ 423(a); 20 C.F.R. §§ 404.101(a), 404.131(a); Matullo v. Bowen,
926 F.2d 240, 244 (3d Cir. 1990)).)
As Defendant also notes,
Plaintiff underwent an EEG during the relevant time period (on July
14, 2011) which was normal.
(Doc. 17 at 11 (citing R. 427); see
also R. 497.)
2.
Evaluation of Mental Health Impairments
Plaintiff next claims the ALJ failed to properly evaluate her
mental health impairments because he did not follow the
requirements of 20 C.F.R. § 404.1520a and Social Security Ruling
97-8p.
(Doc. 15 at 4.)
We conclude this claimed error is without
merit.
20 C.F.R. § 404.1520a sets out the procedure to be used in the
evaluation of mental impairments, noting that a “special technique
is used in such evaluation at each level of the administrative
34
review process.”
20 C.F.R. § 404.1520a(a).
In Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), the Third
Circuit Court of Appeals explained the relationship of the
Psychiatric Review Technique and the RFC.
In 1996, the SSA issued Socialy Security
Ruling 96-8p “to state the [SSA’s] policies
and policy interpretations regarding the
assessment of residual functional capacity
(RFC) in initial claims for disabiity
benefits under [the Act].” Ruling 96-8p
discussed the PRTF and the role it plays in
the five-step analysis:
The psychiatric review
technique described in 20 CFR
404.1520a and 416.920a and
summarized on the Psychiatric
Review Technique Form (PRTF)
requires adjudicators to assess an
individual’s limitations and
restrictions from a mental
impairment(s) in categories
identified in the “paragraph B” and
“paragraph C” criteria of the adult
mental disorders listings. The
adjudicator must remember that the
limitations identified in the
“paragraph B” and “paragraph C”
criteria are not an RFC assessment
but are used to rate the severity
of mental impairment(s) at steps 2
and 3 of the sequential evaluation
process. The mental RFC assessment
used at steps 4 and 5 of the
sequential evaluation process
requires a more detailed assessment
by itemizing various functions
contained in the broad categories
found in paragraphs B and C of the
adult mental disorders listings in
12.00 of the Listing of
Impairments, and summarized on the
PRTF.
35
SSR 96-8p (July 2, 1996).
Ramirez, 372 F.3d at 551-52.
Contrary to Plaintiff’s contention that the ALJ did not cite
evidence in support of his determination and her further assertion
that it is a reasonable assumption that the ALJ improperly
substituted his opinion for that of a professional because he
performed an unsubstantiated Psychiatric Review Technique (Doc. 15
at 5), the ALJ specifically relied on the opinion of John Rohar,
Ph.D., who reviewed relevant evidence and completed a Psychiatric
Review Technique form on February 15, 2013 (R. 101-03).
(R. 25.)
The claimed inconsistency between the ALJ’s finding of mild
limitations relating to Plaintiff’s mental health impairments and
the fact that he provided for psychiatric limitations in the RFC
(Doc. 15 at 5) is also without merit.
As set out above, the RFC
determination is a more detailed assessment and the ALJ’s
consideration of specific limitations was proper within the
relevant legal framework.
See 20 C.F.R. § 404.1545(a)(2).
Finally, we note that Plaintiff does not point to evidence of
record which would indicate a contrary result.
Although she states
that she goes to counseling every month for her mental illness, has
hallucinations on a daily basis, and hears and sees things that she
knows are not real (Doc. 15 at 6), the evidence of record does not
support these allegations for the relevant time period.
For
example, no evidence of record indicates that Plaintiff received
36
counseling for her mental health issues from January 2011 through
December 2012.
Rather, at the ALJ hearing on February 14, 2014,
Plaintiff testified that she had just begun mental health treatment
two months earlier.
(R. 54.)
Plaintiff’s allegations regarding
the frequency of hallucinations and hearing/seeing things are
contradicted by the record: on October 23, 2011, Plaintiff reported
to Dr. Wolinan that she had not had seizures recently (R. 406); at
her October 24, 2011, visit with Dr. Gilliam, Plaintiff reported
that she had experienced two episodes where she had vivid
audio/visual hallucinations (R. 206); on August 1, 2012, Dr.
Wolanin reported that Plaintiff was doing well with no new
complaints (R. 337) but on August 29, 2012, she told Dr. Gilliam
that she was having seizures twice a week which consisted of a
“weird feeling” (R. 216); also at the August 29, 2012, visit with
Dr. Gilliam Plaintiff reported the same two events where she had
audio/visual hallucinations as she had reported at her October 24,
2011, visit (R. 216)–-no additional hallucinatory events were
reported; and Plaintiff testified on February 14, 2014, that the
last time she experienced a hallucination was about a year before
(R. 50).
Thus, we find no foundation in the record for Plaintiff’s
assertions regarding the severity of the symptoms alleged.
3.
Residual Functional Capacity Assessment
Plaintiff asserts that the ALJ did not properly assess
Plaintiff’s RFC because he failed to provide a function by function
37
assessment of her limitations and capabilities.
(Doc. 15 at 6.)
Specifically, she claims the ALJ did not state how many hours she
could sit, stand, and walk on a continual basis as required by SSR
96-8p and he relied on his own lay opinion to conclude Plaintiff
was capable of light work.
(Doc. 15 at 7.)
We conclude this
claimed error is without merit.
SSR 96-8p states that an ALJ must consider all the relevant
evidence when making his RFC determination.
Sternberg v.
Commission of Social Sec., 438 F. App’x 89, 98 (3d Cir. 2011) (not
precedential). “Moreover, the RFC determination should be
accompanied by ‘a clear and satisfactory explication of the basis
on which it rests.’”
Id. (quoting Fargnoli v. Massanari, 247 F.3d
34, 41 (3d Cir. 2001); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
1981)).
As noted by Defendant, the ALJ identified how many hours
Plaintiff could sit, stand, and/or walk by limiting Plaintiff to
light work which, according to SSR 83-10, “‘requires standing or
walking, off and on, for a total of approximately 6 hours of an 8
hour workday.
Sitting may occur intermittently during the
remaining time.’”
(Doc. 17 at 15 (quoting SSR 83-10, 1983 WL
31251, at *6 (1983)).)
Here the ALJ provided “a clear and satisfactory explication”
of the basis for his RFC determination.
(R. 26-29.)
He discussed
Plaintiff’s claimed impairments and the alleged limitations
38
resulting from them.
(R. 27.)
He cited numerous records–-
diagnostic studies and physical examinations--in support of his
finding that the evidence does not support Plaintiff’s alleged
level of incapacity.
(Id.)
As cited by the ALJ and confirmed by
our review of the record set out above, diagnostic studies during
the relevant time period were either normal or showed only slight
abnormalities.
(See, e.g., R. 447-50, 496.)
Similarly, Dr.
Wolanin’s physical examinations, conducted almost monthly during
the relevant time period, are essentially unremarkable.
e.g., R. 353-54, 454-55.)
(See,
He noted Plaintiff’s subjective
reporting of pain and anxiety but a thorough review of his office
visit notes shows that objective observation and examination most
often did not provide support for the alleged difficulties.
(Id.)
The ALJ specifically discussed Plaintiff’s history of
seizures.
(R. 28.)
He referred to evidence during the relevant
time period of normal exam findings and the lack of evidence
regarding further testing and neurologic follow up.
(Id.)
Regarding opinion evidence, the ALJ provided adequate reasons
for assigning limited weight to Dr. Wolinan’s opinions contained in
the Multiple Impairment Questionnaire.
(R. 28.)
His conclusion
that objective findings did not support the significant limitations
and absences opined by Dr. Wolinan is supported by the ALJ’s
earlier citations to the record.
(See R. 27.)
Thus, the ALJ’s
conclusion is consistent with the requirements of 20 C.F.R. §
39
404.1527(c) concerning the weight to be given an opinion of a
treating source.6
6
Our conclusion that the ALJ properly determined Plaintiff’s
RFC is bolstered by our review of Plaintiff’s presentation at
office visits and the clinical findings identified by Dr. Wolinan
in the Multiple Impairment Questionnaire.
Although records show that Plaintiff took medications related
to anxiety, seizures, and pain, Plaintiff rarely complained of many
alleged limitations at her monthly visits to Dr. Wolanin. Other
than specific episodic illnesses and events, Plaintiff’s most
common, though not consistent, specific complaints were chronic
pain and anxiety. (See, e.g., R. 432.) As discussed in the text,
objective records do not support the limitations alleged. The
records do not show that Plaintiff identified seizures as a problem
with Dr. Wolinan during the relevant time period. As set out in
the text, on June 29, 2011, Dr. Wolinan noted that Plaintiff needed
an EEG (R. 429) which she had on July 22, 2011 (R. 496). The
results were normal. (R. 496.)
Although she went to a
neurologist, Dr. Gilliam, for the problem, she saw him only twice
during the relevant time period. (R. 206, 216.) Dr. Gilliam noted
on August 29, 2012, that Plaintiff “did not come for the scheduled
video/EEG show she states she is ready at this time.” (R. 218.)
Headache and carpal tunnel symptomology and assessments are rarely
mentioned.
Further, Dr. Wolinan’s opinions set out in the Multiple
Impairment Questionnaire are undermined by inconsistencies
regarding the objective support cited. (See R. 474.) 20 C.F.R. §
404.1527(c)(3) addresses the “supportability” of a medical source
opinion: “The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory
findings, the more weight we will give the opinion.” Here Dr.
Wolinan identifies the following supportive clinical findings: “Pt.
highly anxious; fearful of surrounds; tenderness along paraspinals,
most pronounced in C-spine and L-spine; Decrease ROM through spine
secondary to pain.” (R. 474.) However, Dr. Wolinan’s office notes
do not mention fearfulness of surroundings and indicate he found
Plaintiff anxious only on two occasions. (R. 329, 441.) The
records show that Plaintiff most often appeared well and in no
distress, she was alert and oriented, had normal mood, affect, and
attention, and was pleasant and cooperative.
(See, e.g., R. 35354, 454-55.) Similarly, Dr. Wolinan’s muculoskeletal examinations
rarely noted tenderness along the paraspinals, and then he noted at
most moderate tenderness of limited duration (e.g., tenderness
40
4.
Vocational Expert Testimony
Plaintiff’s last claimed error relates to step five of the
sequential process in that she claims the ALJ improperly relied on
the Vocational Expert’s testimony because the reasoning levels
required for the jobs identified are in excess of her
capabilities.
(Doc. 15 at 7.)
We conclude the ALJ did not err on
this basis.
In his RFC determination, the ALJ found in relevant part that
Plaintiff could do light work “that is described as unskilled,
involving simple, routine tasks . . . and she could have performed
work that is considered low stress, which requires only occasional
simple decision making and occasional changes in the work duties or
work setting.”
(R. 26.)
Plaintiff maintains that, even though the
jobs identified by the VE are unskilled, the associated reasoning
levels three and four are in excess of the limitations identified
by the ALJ.
With this argument, Plaintiff seems to equate the
ALJ’s determination that she could perform simple, routine tasks
noted in March 2011 but not in February or April). (R. 442, 444,
452.) Contrary to his opinion statement, Dr. Wolinan routinely
found Plaintiff to have normal range of motion on examination, even
when he found tenderness. (See, e.g., R. 344, 445, 455.)
Similarly, the laboratory and diagnostic test results cited do
not provide the suggested support. Dr. Wolinan pointed to the
following: “Pt. followed by neurology for epilepsy; CT scan of Cspine shows mild degenerative joint disease; x-ray lumbar spine
shows mild levoscoliosis.” (R. 475.) As noted in the text, the
only diagnostic test related to epilepsy–-the July 14, 2011, EEG–was normal. (R. 496.) The mild findings of the other tests cited
undermine his opinion regarding serious limitations. (R. 475-80.)
41
that required occasional simple decision-making with a limitation
to jobs with a reasoning level of one which involves an ability to
carry out simple “one or two step instructions.”
(Doc. 15 at 9.)
Although we disagree that a limitation to simple, routine,
tasks limits Plaintiff to jobs with a reasoning level of one,
whether reasoning level three is consistent with such limitations
is a more difficult question.
Fortunately, the Third Circuit Court
of Appeals addressed the issue at length in Zirnsak v. Colvin, 777
F.3d 607, 616-17 (3d Cir. 2014).
In Zirnsak, the issue arose in
the context of the plaintiff’s assertion that the ALJ’s failure to
resolve conflicts between the VE’s testimony and the Dictionary of
Occupational Titles (“DOT”) warranted remand where the VE testified
that the plaintiff could work at jobs the DOT identified as having
a GED reasoning level of three and the claimed inconsistency with
the ALJ’s finding that the plaintiff was “limited to simple and
repetitive tasks involving routine work processes and settings.”
Id. at 617.
Zirnsak set out a full explanation of the ALJ’s step
five obligation and the proper resolution of the issue presented.
In step five of the disability inquiry, the
Commissioner bears the burden of establishing
the existence of jobs in the national economy
that an individual with the claimant’s
impairments is capable of performing. 20
C.F.R. § 404.1520(a)(4)(v), § 404.1560(2014);
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.
1987). To determine what type of work (if
any) a particular claimant is capable of
performing, the Commissioner uses a variety
of sources of information, including the DOT,
the SSA’s own regulatory policies and
42
definitions (found in the Code of Federal
Regulations (“CFR”)), and testimony from
VE’s.
“The DOT is a vocational dictionary that
lists and defines all jobs available in the
national economy and specifies what
qualifications are needed to perform each
job.” McHerrin v. Astrue, Civil Action No.
09-2035, 2010 WL 3516433, at *3 (E.D. Pa Aug.
31, 2010) (citing SSR 00-4p, 2000 WL 1898704
(Dec. 4, 2000)). The qualification
categories listed by the DOT for each job
include the job’s Strength level, General
Educational Development (“GED”) level and its
Specific Vocational Preparation (“SVP”)
level. Appendix C, Dictionary of
Occupational Titles, available at
www.occupationalinfo.org/appendxc_1. html.
Strength level “reflects the estimated
overall strength requirement of the job.”
Id. GED measures the “those aspects of
education (formal and informal) which are
required of the worker for satisfactory job
performance.” Id. GED is broken into three
categories: (1) reasoning development, (2)
mathematical development, and (3) language
development. Id. Reasoning levels in the
DOT range from level 1 to level 6. Id.
Important to this case, jobs with a reasoning
level of 3 require that an employee be able
to “[a]pply commonsense understanding to
carry out instructions furnished in written,
oral, or diagrammatic form [and d]eal with
problems involving several concrete variables
in or from standardized situations.” Id.
SVP levels, on the other hand, measure
the skill level necessary to perform a
particular job. SSR 00-4p, 2000 WL 1898704,
at *3 (Dec. 4, 2000). “A skill is knowledge
of a work activity that requires the exercise
of significant judment that goes beyond the
carrying out of simple job duties.” Id. SVP
levels in the DOT range from level 1 to level
9. Id. The DOT skill levels correspond with
the second source of information relied on by
the Commissioner: the CFR. Section 404.1568
43
of the CFR classifies occupations into three
categories: unskilled, semi-skilled, and
skilled. 20 C.F.R. § 404.1568(a)-(c) (2014).
Unskilled work is defined as ”work which
needs little or no judgment to do simple
duties that can be learned on the job in a
short period of time.” Id. § 404.1568(a).
Unskilled work corresponds to an SVP level of
1-2; semi-skilled work corresponds to an SVP
level of 3-4; and skilled work corresponds to
an SVP level of 5-9. SSR 00-4p, WL 1898704,
at *3 (Dec. 4, 2000).
The Commissioner can also rely on
testimony from a VE to meet its step-five
evidentiary burden. 20 C.F.R. § 404.1566(e).
VE’s are most commonly used to provide
evidence at hearings before ALJ’s to resolve
complex vocational issues. SSR 00-4p, 2000
WL 1898704, at *3 (Dec. 4, 2000). However, a
common issue--and the one argued by Zirnsak
on appeal--arises when a VE’s testimony
conflicts with other sources of information
relied on by the Commissioner, namely the
DOT. As a general rule, occupational
evidence provided by a VE should be
consistent with the occupational evidence
presented in the DOT. Id. at *2. To ensure
consistency, courts have imposed an
obligation on ALJ’s to “[i]dentify and obtain
a reasonable explanation for any conflicts
between occupational evidence provided by
VE’s...and information in the [DOT].” Id. at
*1; Rutherford, 399 F.3d at 556.
Specifically, an ALJ is required to (1) ask,
on the record, whether the VE’s testimony is
consistent with the DOT, (2) “elicit a
reasonable explanation” where an
inconsistency does appear, and (3) explain in
its decision “how the conflict was resolved.”
Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir.
2002). An ALJ’s failure to comply with these
requirements may warrant remand in a
particular case. Rutherford, 399 F.3d at
557. However, this Circuit has emphasized
that the presence of inconsistencies does not
mandate remand, so long as “substantial
evidence exists in other portions of the
44
record that can form an appropriate basis to
support the result.” Id. (citing Boone v.
Barnhart, 353 F.3d 203, 209 (3d Cir. 2004)).
777 F.3d at 616-17.
The plaintiff in Zirnsak alleged that the VE’s testimony at
the hearing conflicted with the with the DOT in two ways.
at 617.
777 F.3d
The first inconsistency, relevant to the situation here,
involved the VE’s testimony that the plaintiff was capable of
working as an order clerk, charge account clerk, or telephone
quotation clerk–-all three occupations have a GED reasoning level
of three which the plaintiff claimed to be inconsistent with the
ALJ’s finding that she was “limited to simple and repetitive tasks
involving routine work processes and settings.”
Id.
Finding as a threshold matter that the ALJ met his affirmative
obligation to inquire about inconsistencies, the Court noted the VE
responded that her testimony was consistent except for the fact
that the DOT does not address a sit/stand option for subassembler
positions but did not note the inconsistency regarding reading
level argued on appeal.
Id.
The Court found it significant that
neither the plaintiff nor her attorney challenged the VE on the
issue “or otherwise identified any apparent inconsistency between
the VE’s testimony and the DOT.”
Id. (citing Clawson v. Astrue,
Civil Action No. 11-294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15,
2013).
“Because the VE did not identify the reasoning level
inconsistency at the hearing, the ALJ did not elicit an explanation
45
for that inconsistency or explain in its decision how the conflict
was resolved.”
Id. (citing Burns, 312 F.3d at 127).
Therefore,
the next step was for the Court to determine whether substantial
evidence in the record supported the ALJ’s determination.
(citing Boone, 353 F.3d at 209).
Id.
The Court then reviewed legal
authority relevant to the issue.
There is a split of authority as to whether
an inherent conflict exists between a job
requiring level 3 reasoning and a finding
that a claimant should be limited to simple,
routine tasks and unskilled work. Several
courts have held that a finding limiting a
claimant to simple, repetitive tasks is
inconsistent with a job requiring a reasoning
level of 3. E.g., Hackett v. Barnhart, 395
F.3d 1168, 1176 (10th Cir. 2005); McHerrin,
2010 WL 3516433, at *5. These courts have
found that claimants limited to simple,
repetitive tasks are better suited for jobs
that require level 2 reasoning. E.g.,
Hackett, 395 F.3d at 1176. Further, they
have held that an SVP classification of a job
as unskilled does not neutralize the conflict
between a limitation to simple tasks and a
job requiring level 3 reasoning . McHerrin,
2010 WL 3516433, at *6 (citing Lucy v.
Chater, 113 F.3d 905, 909 (8th Cir. 1997)).
On the other hand, several courts have
found that there is not a “per se conflict
between a reasoning level 3 job and [a]
limitation to simple, routine tasks/unskilled
work.” E.g., Terry v. Astrue, 580 F.3d 471,
478 (7th Cir. 2009); Renfrow v. Astrue, 496
F.3d 918, 921 (8th Cir. 2007); Clawson v.
Astrue, Civil Action No. 11-294, 2013 WL
154206, at *6 (W.D. Pa. Jan. 15, 2013);
Simpson v. Astrue, Civil Action No. 10-2874,
2011 WL 1883124, at *7 (E.D. Pa. May 17,
2011). These courts have focused on whether
a failure to inquire about or reconcile a
conflict caused any harm to the claimant when
46
determining whether remand is necessary.
Simpson, 2011 WL 1883124, at *5. These
courts have found that any error stemming
from an ALJ’s failure to ask about a conflict
was harmless where the record established
that the claimant in question could perform a
level 3 reasoning job, despite a limitation
to simple work. Terry, 580 F.3d at 478;
Renfrow, 496 F.3d at 921; Simpson, 2011 WL
1883124, at *7. These courts have identified
certain factors that influenced their
reasoning. First, in Terry, the Seventh
Circuit noted that the claimant in that case
“[did] not argue that she [could not] perform
these skills, perhaps because the record
suggest[ed] she [could].” Terry, 580 F.3d at
478. Next, it emphasized that because the
claimant did not point out the conflict at
trial, she was required to show that the
conflict was “obvious enough that the ALJ
should have picked up on [it] without any
assistance.” Id. (alteration in original)
(quoting Overman v. Astrue, 546 F.3d 456, 463
(7th Cir. 2008)). Finally, these courts
noted that the jobs listed by the VE were
only representative examples--not an
exhaustive list--of jobs that the claimant
was capable of performing. Simpson, 2011 WL
1883124, at *8 (citing Rutherford, 399 F.3d
at 557).
777 F.3d at 617-18.
Based on this case review, the Court concluded “that there is
no bright-line rule stating whether there is a per se conflict
between a job that requires level 3 reasoning and a finding that a
claimant should be limited to simple and routine work.”
618.
Id. at
In the absence of controlling precedent, the Court concluded
the facts were most analogous to Terry and Simpson.
Id.
Thus, the
Court focused on whether the plaintiff had been harmed by the ALJ’s
failure to address the alleged inconsistency, looking at the
47
factors found relevant in Terry and Simpson.
Id. at 618-19.
The
relevant facts included that the plaintiff did not seriously argue
that she was incapable of performing the jobs recommended by the VE
and the record showed that she could perform the jobs of order
clerk, charge account clerk or telephone quotation clerk: the
plaintiff had completed tenth grade; she had previous experience
working as both a clerk and bookkeeper; the objective medical
record was deemed unsupportive of her allegations of disabling
mental impairments; at numerous evaluations during the relevant
time period she was noted to be oriented, calm, and psychologically
appropriate; she received only conservative treatment–-primarily
medication during the relevant time period; and her account of
daily living was “relatively full and independent.”
Id.
Additional similarities were that the plaintiff’s counsel did not
identify any inconsistencies at the VE hearing as was the case in
Terry and Simpson and, finally, as in Simpson, the occupations
listed by the VE were only “a couple examples” of jobs available to
the plaintiff.
Id. at 619 (citing Simpson, 2011 WL 1883124, at *8
(citing Rutherford, 399 F.3d at 557)).
The Circuit Court concluded
“the combination of these factors compels our finding that ‘any
conflict [was] not so obvious that the ALJ should have pursued the
question.’”
Id. (quoting Simpson, 2011 WL 1883124, at *7
(alteration in original) (quoting Terry, 580 F.3d 476)).
Here Defendant does not dispute Plaintiff’s assertion that two
48
of the jobs identified by the VE–-mail sorter and records
processor–-require a reasoning level of three and the third
position identified–-information clerk-–requires a reasoning level
of four.
(Doc. 15 at 8-9; Doc. 17 at 18-20.)
As in Zirnsak,
Plaintiff now claims there was a conflict between the DOT and the
VE’s testimony.
(Doc. 15 at 7-10.) Our case is also analogous in
that ALJ Tranguch asked if there was a conflict (R. 71), the VE’s
response did not identify the reasoning level issue (id.), and
neither Plaintiff nor her attorney challenged the VE on the point
now alleged or otherwise identified any apparent inconsistency
between the VE’s testimony and the DOT.
777 F.3d at 617-18.
Because the VE did not identify the reasoning level inconsistency
at the hearing, the ALJ did not elicit an explanation for that
inconsistency or explain in his decision how the conflict was
resolved.
Thus, as in Zirnsak, we will focus on whether the
“failure to inquire about or reconcile a conflict caused any harm”
to Plaintiff and, if the “ALJ’s failure to ask about [the] conflict
was harmless,” remand is not necessary.
777 F.3d at 618 (citations
omitted).
In addition to the similarities discussed above, this case
presents other parallels to Zirnsak: Plaintiff did not argue she
could not perform the jobs identified (see Doc. 15 at 7-10)7; she
7
Plaintiff’s only specific argument does not go to reasoning
level but to attendance: she states “if I missed 3 to 4 days of
work a month there was [sic] no jobs for me. This was on my
49
has a high school education (R. 29); her previous experience as a
mail carrier required technical knowledge and skills, as well as
writing and completing reports (R. 150); the objective medical
record was deemed unsupportive of her allegations of disabling
mental and physical impairments (R. 28-30); at numerous evaluations
during the relevant time period it was noted that Plaintiff
appeared well, was in no apparent distress, she was alert and
oriented, had normal mood and affect, her memory was intact, and
her attention was within normal limits (see, e.g., R. 343-44); at
most evaluations Plaintiff’s physical examinations were
unremarkable with only occasional mild to moderate tenderness of
the spine noted (see, e.g., R. 442, 445)8; she received only
conservative treatment–-medication--during the relevant time
period; she was found to be essentially independent in her daily
activities (R. 28); and the ALJ listed the identified positions as
examples of jobs Plaintiff could perform (R. 30).
medical impairments questioner [sic] from Dr. Wolinan but this part
was left out of the paperwork.” (Doc. 15 at 10.) As discussed in
the text, the Multiple Impairment Questionnaire completed by Dr.
Wolinan was included in the record and indicated that he would
estimate that Plaintiff would miss work on average two to three
times per month because of her impairments. (R. 480.) Also, as
discussed in the text, the ALJ appropriately gave this opinion
limited weight. (R. 28.)
8
As previously set out in the text, examples of the sporadic
nature of Plaintiff’s symptoms include Dr. Wolinan’s March 4, 2011,
finding on musculoskeletal examination that Plaintiff had “moderate
midline tenderness of the spine” (R. 445) and no tenderness or
other muculoskeletal problem was noted at her visit one month later
on April 6, 2011 (R. 442).
50
The combination of these factors compels the same finding as
in Zirnsak that “‘any conflict [was] not so obvious that the ALJ
should have pursued the question.’”
777 F.3d at 619 (quoting
Simpson, 2011 WL 1883124, at *7 (alteration in original) (quoting
Terry, 580 F.3d at 478).
Absent evidence that Plaintiff was harmed
by the ALJ’s determination, we find, as the Court did in Simpson,
that “any perceived inconsistency between a limitation to ‘simple,
routine tasks’ and a reasoning level of 3 is ‘simply not egregious
enough–-either in number or in substance–-to bring into question
the ALJ’s reliance on the expert testimony as a whole.’”
2011 WL
1883124, at *8 (quoting Young v. Astrue, Civ. A. No. 09-2834, 2010
WL 2135627, at *7 (E.D. Pa. May 26, 2010) (citing Rutherford, 399
F.3d at 558)).
Because the record as a whole, including the VE’s
testimony, provided substantial evidence for the ALJ’s
determination that Plaintiff was not disabled, remand is not
warranted.
V. Conclusion
For the reasons discussed above, we have found all claimed
errors to be without merit.
Therefore, Plaintiff’s appeal of the
Acting Commissioner’s denial of benefits (Doc. 1) is denied.
An
appropriate Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: June 23, 2015
51
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