Wise v. Colvin

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons cited in the foregoing Memorandum, the Plaintiffs assignments of error are rejected but for her contentions that the ALJs RFC assessment is unsupported by substantial evidence of re cord and that the ALJ improperly subordinated the medical opinions of her treating physicians to that of the non-examining consultant who failed to provide an adequate rational for disbelieving the conclusions reached by the treating physicians. An Order consistent with these determinations will be filed contemporaneously herewith.Signed by Honorable Richard P. Conaboy on 8/10/15. (cc)

In the United States District Court
for the Middle District of Pennsylvania
Carole Wise

:

Plaintiff

: Case No. 3:14-CV-2303

v.

:

Carolyn W. Colvin
Commissioner of Social Security

: (Judge Richard P. Conaboy)
:

Defendant.
:
_________________________________________________________________
Memorandum
I.

Background.
We consider here Plaintiff’s appeal of a denial of Disability

Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”).

The administrative law judge (“ALJ”) who evaluated this

claim found that the Plaintiff has the residual functional capacity
(”RFC”) to perform “sedentary work”, as defined in 20 CFR
404.1567(a) and 416.967(a), with additional limitations such that
she avoid climbing stairs or ladders; avoid operating motor
vehicles; stoop, bend, kneel, crouch and crawl only occasionally;
avoid loud noise levels; confine her work to unskilled tasks that
can be learned on the job in a short period of time; and have no
interaction with the general public and only occasional interaction
with co-workers.

(Doc. 8-2 at 18-19).

The ALJ found also that

jobs within the Plaintiff’s stated limitations exist in significant
numbers in the national and regional economy.

1

(Doc. 8-2 at 25-26).

Thus, the ALJ denied Plaintiff’s claim and that denial was
subsequently affirmed by the Appeals Council by letter dated
October 10, 2014.

(Doc. 8-2 at 2).

Plaintiff’s appeal, over which we exercised jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c), is based upon six
assertions.

(See Doc. 10): (1) that the ALJ failed to comply with

the Remand Order of the Appeals Council dated May 17, 2012; (2)
that the ALJ erred by finding several of Plaintiff’s impairments to
be “non-severe”; (3) that the ALJ erred by finding that the
Plaintiff does not meet the criteria of Listing 12.07; (4) that the
Commissioner’s conclusion that there is work available to the
Plaintiff which she can perform is not supported by “substantial
evidence”; (5) that the ALJ incorrectly evaluated the opinion
evidence and (6) that the ALJ improperly evaluated the Plaintiff’s
credibility.

We shall consider these arguments in the context of

all evidence of record.
II.

Testimony Before the ALJ.
a.

Testimony of December 8, 2010.

Testimony was taken on December 8, 2010; October 11, 2012;
January 28, 2013; and May 1, 2013.1

At the hearing of December 8,

2010, the Plaintiff testified that she was born on October 6, 1974

1

Testimony was taken in piecemeal fashion because the Appeals Council remanded this
matter to the ALJ for additional consideration and receipt of additional medical evidence. See Doc.
8-3.
2

and had achieved her 36th birthday before the first hearing.
8-2 at 113).

(Doc.

She is married and her husband is out of work due to

a knee surgery.

(Id. at 113-14).

They have a daughter age 16 and

a son age 14 who reside with them in their home.

(Id. At 114).

Plaintiff alleges that she became disabled on October 20, 2008
when she experienced numbness and a tingling sensation along the
right side of her body as she was descending some stairs.
114).

(Id. at

She stated that she went to the hospital and indicated that

they (the doctors at the hospital) did not discover anything wrong
at that time.

She stated that she weighed 376 pounds and stood

5'10'’ tall at the time of the first hearing and that she weighed
about the same at the time she experienced the aforementioned
symptoms.

(Id.).

She stated that her family was subsisting on

public assistance and food stamps since both she and her husband
are out of work.

(Id.).

Plaintiff also testified that since the onset of her alleged
disability she has not received Unemployment Compensation or
Workers’ Compensation.

She has a valid driver’s licence and has

completed her high school education and two years additional
schooling to earn an A.A. degree in electronics.

(Id. at 116).

She later worked for a time in the electronics field but has not
worked in any capacity since October 20, 2008.

(Id. at 117).

Plaintiff stated that she has had no psychiatric examinations,
intensive outpatient therapy, or group therapy since her alleged

3

onset date.

(Id. at 118).

She related that she sees a physician

once every three months to review her medications.
20).

(Id. at 119-

She also stated “my mental health has been pretty good.

Things have been getting easier to handle.”

(Id. at 120).

With respect to her physical problems, Plaintiff stated that
one physician thinks all her physical problems stem from her
migraine headaches, while a second physician has told her that
“there’s actually something wrong with the muscles and something
wrong neurologically with the [her] body.”

(Id. at 121).

Plaintiff also acknowledged that the physician who told her
something was neurologically wrong with her had not reflected that
opinion in his notes.

(Id.)

Plaintiff stated that she has difficulty sleeping but that a
sleep study indicated that she did not require a CPAP device.
(Id.).

She related that she takes a generic form of Ambien when

she has not succeeded in falling asleep by 1:00 to 2:00 in the
morning.

(Id. At 122).

She stated further that she believed she

had suffered a stroke but that her doctors told her she had had a
TIA.

(ID.).

She acknowledged that her medical records did not

substantiate that she had suffered a TIA.

(Id.).

Plaintiff

stated that she uses a walker because her legs frequently give out
on her when she tries to walk.

(Id. at 123).

She also

acknowledged that her doctors have not found the reason why her
legs give out.

(Id.).

She stated that she had been at her current

4

weight (376 pounds) for a long time.

(Id.).

Describing a typical day, Plaintiff stated that she rises
about 9:30 a.m. and her daughter helps her get dressed because she
has trouble getting her pants up.

She cannot put her pants on

without assistance because she gets dizzy when she bends forward.
Her daughter also helps her make breakfast because if she stands
too long her legs will give out.

After breakfast she generally

sits on the front porch to get some sunshine.

In the summer of

2009, she would go to physical therapy on weekdays at 11:00 a.m.
and would return home at approximately 1:00 p.m. whereupon she
would nap and watch television until suppertime.

She would not

participate in preparing supper, a task that would be performed by
her husband or her children.

Afterward, if the weather was good,

she would sit out on the porch, and, if the weather was bad, she
would watch television until going to bed between 9:00 and 10:00
p.m.

(Id. at 123-26).
Plaintiff testified further that she has been unable to work

since October 20, 2008 because she cannot stand for long periods of
time and can walk only very short distances.

(Id. At 128).

She

expressed disappointment that her doctors could not determine what
was wrong with her.

(Id.).

She stated also that her doctors had

not suggested any sort of treatment for her psychological problems.
(Id.).
On questioning from her attorney, Plaintiff stated that she

5

uses a wheel chair on bad days– -typically three or four days each
week.

She has had a wheelchair since a hospitalization in 2008.

She uses the wheelchair at home and when she goes elsewhere.

She

stated further that she uses a walker to get from the wheelchair to
the bathroom on her bad days.

(Id. at 129-31).

Plaintiff

testified that she could read for no more than 30 minutes at a time
before her vision blurs.

As of December, 2010 this blurred vision

had been present for about six months to one year.

She wears a

brace on her left hand because of a sensation of pins and needles
that she had been experiencing for the last three months.

She

stays on the first floor of her home because she can manage no more
than the four steps to get from the sidewalk to the first floor of
her home.

She has been advised not to drive until her doctors

arrive at a definitive diagnosis of her conditions.
transports her in a wheelchair accessible vehicle.

Her husband
She cannot sit

for more than 45 minutes before she has to recline and stretch to
relieve her back pain.

She has been experiencing problems with her

memory and continues to experience migraine headaches about once
each week.

These headaches typically last five to six hours and do

not respond to medication.

Symptoms associated with her migraine

headaches include dizziness, nausea, and photosensitivity.
132-138).

(Id. At

Plaintiff’s testimony concluded with her assertion that

she has had no sensation in her right leg below the knee since
October of 2008 and no sensation in her left leg since March of

6

2009.
b.

(Id. at 140-42).
Vocational Expert’s Testimony of December 8, 2010.

Ryan Bierely, a vocational expert, also testified.

Mr.

Bierely stated that the Plaintiff would be characterized under the
Social Security regulations as a younger individual with a high
school education or more.

Plaintiff’s past relevant work included

work as a wire harness assembler and a sales attendant.

The former

occupation is semi-skilled light work while the latter is unskilled
light work.

Based upon a hypothetical question that assumes a

person the same age, educational level and work experience as the
Plaintiff with the capacity for light work but for additional
limitations as to climbing, pulling, bending, kneeling, crouching,
reaching overhead, noise intensity levels, working around moving
machinery, and avoidance of high places, the vocational expert
concluded that Plaintiff could no longer perform her past relevant
work as a sales attendant but could perform her previous job as a
wire harness assembler.

If other limitations such as the inability

to respond to usual pressures in a work setting and the need to use
a walker in the work place were added to the hypothetical question,
Mr. Bierely testified that no work would be available in the
national economy that the Plaintiff could perform.

(Id. at 145-

51).
c.

Plaintiff’s Testimony of October 11, 2012.

At the hearing of October 11, 2012, Plaintiff amended her

7

onset date to June 9, 2009 due to her attorney’s reevaluation of
the medical evidence.

Plaintiff also testified that her husband

attempted suicide about one week prior to the hearing and that this
event had had profound impact on her mental health.
97-98).

(Doc. 8-2 at

Plaintiff appeared at the hearing in a wheel chair and

wearing leg braces.

She stated that she was wearing the leg braces

because she was experience bi-lateral dropfoot symptoms.

Plaintiff

also reiterated her earlier testimony regarding her inability to
ambulate without a cane or walker.

(Id. at 99-100).

Plaintiff indicated that she had been prescribed wrist splints
for bilateral carpel tunnel syndrome.

She stated that her carpel

tunnel symptoms caused her to frequently drop things.

She stated

that her current weight was now 390 pounds- - a weight gain since
her first hearing.
her medications.

She attributed the weight gain to a change in
She stated that she exercises but that her

exercise is limited to upper body movements and stretches.

(Id. at

101-02).
Plaintiff testified further that she sees a mental health
counselor each week and a psychiatrist once every three months.
the summer of 2012 she began experiencing fainting spells.

In

Her

doctor, a doctor Reif, ordered an MRI to assess the cause of these
spells but the MRI did not provide an answer.

Plaintiff also

testified that Dr. Reif prescribed Medrol for her and that she had
gotten some relief from her migraine headaches as a result.

8

She

testified also to increased difficulty with her memory and that her
overall condition had worsened since her first hearing.

Plaintiff

did acknowledge that no doctor had determined the reason why she
had experienced her fainting spells.
d.

(Id. 102-06).

Testimony of January 28, 2013.

On January 28, 2013, Plaintiff testified that she continues to
treat with Dr. Reif and her family physician, Dr. Del Tredici.
Plaintiff stated that she had been placed on an increased dose of
Abilify which had helped ease her depression.

She stated that she

continues to experience migraine headaches at least once a week and
that bright lights and fragrances can exacerbate these headaches.
The headaches can last for 2-3 days.

Plaintiff also testified that

she continues to wear wrist braces for her carpel tunnel syndrome
and that she continues to experience difficulty holding objects at
times.

At such times her hands become “tingly” for 2-3 minutes.

Plaintiff stated that she continues to see a counselor weekly
and her psychiatrist every three months.
experience confusion and memory problems.

She continues to
These memory problems

include difficulty in remembering birthdays and anniversaries.
Plaintiff indicated that a consultative report prepared by Dr. Bree
indicated erroneously that she had not required assistance getting
on and off his examination table.

The hearing concluded with the

ALJ’s pronouncement that she was going to direct an additional
medical report to address both the physical and psychological

9

aspects of Plaintiff’s problems.
e.

(Id. at 82-88).

Testimony of May 1, 2013.

On May 1, 2013, Plaintiff provided updated testimony which
closely tracked complaints she had described at her previous
hearings.

She indicated that she continued to experience migraine

headaches about once each week, that her weight had actually
increased slightly despite the fact that she was following a low
fat diet, and that she was performing exercise as recommended by
her doctor.

(Id. at 56-58).

Testimony was also received from Andrew Kaparelli, a
vocational expert.

When asked to respond to a hypothetical

question that assumed a person of Plaintiff’s age, education, and
work experience with limitations as to climbing stairs or ladders
(never), driving or operating large equipment (never), only
occasionally stooping, bending at the waist, kneeling, crouching,
squatting, crawling, or reaching overhead bilaterally, avoidance of
loud noise levels, fast moving machinery, sharp objects and toxic
chemicals, and work involving only simple duties with only
occasional interaction with co-workers and no interaction with the
general public, Mr. Kaparelli responded that, given these
assumptions, Plaintiff would be unable to perform any of her past
relevant work.

Mr. Kaparelli testified further that, given the RFC

corresponding to the ALJ’s hypothetical question, work did exist in
the national and regional economy that Plaintiff could perform.

10

Such work included jobs such as final assembler, semi-conductor
bonder, and table worker.

(Id. at 65-70).

Plaintiff’s attorney asked Mr. Kaparelli whether a person
described in the ALJ’s hypothetical question would be able to
perform any of the aforementioned jobs if that person also required
rest periods for up to one third of the work day.

Mr. Kaparelli

stated that such a person would not be adequately productive to
sustain any full-time employment.

Mr. Kaparelli’s answer remained

the same on the additional assumptions that Plaintiff would miss up
to four days of work per month or would be off-task more than 15%
of the workday due to physical and mental impairments and the side
effects of medications.

(Id. at 73-77).

2

III. Medical Evidence.
a.

Physical Impairment Evidence.

Plaintiff was diagnosed with carpel tunnel syndrome as
confirmed by EMG studies, chronic migraine headaches, peripheral
neuropathy, chronic back pain, chronic knee pain, morbid obesity
and hypertension by her family physician, Dr. Del Tredici, and her
treating neurologist, Dr. Reif.

These diagnoses were based upon

long-term physician/patient relationships (four plus years with Dr.
Del Tredici and three plus years with Dr. Reif).

2

See Doc. 8-21,

Testimony was also received from Dr. Dora Logue, a psychiatrist who provided a
consultative report (Doc. 8-26) regarding Plaintiff after reviewing her medical records. Dr. Logue’s
testimony and opinion will be discussed below.
11

Exhibit 42F; Doc. 8-22, Exhibit 41F).
Two consulting physicians, who each examined the Plaintiff on
only one occasion, concurred with the various diagnoses of the
treating physicians.

Dr. Taswir, who examined Plaintiff in

September of 2010, diagnosed hypertension, morbid obesity, and
migraine headaches.

Dr. Bree, who examined Plaintiff on November

1, 2012, diagnosed morbid obesity and carpel tunnel syndrome and
seemingly concurred with the treating physicians’ finding of
neuropathy by stating his impression of “lower extremity weakness
and decreased sensation in the lower extremities.”

See Doc. 8-22,

Exhibit 46F; Doc. 8-18, Exhibit 23F).
A consulting, non-examining physician, Dr. Dora Logue,
reviewed Plaintiff’s medical records after this case was remanded
to the ALJ by the Appeals Council.

Dr. Logue opined that Plaintiff

was affected by somatization disorders including right-sided
hemiplegia with hemesthia, obesity, osteoarthritis of her knees,
and migraine headaches.

(Doc. 8-26 at 8).

Dr. Logue also stated

that Plaintiff “has had osteoarthritis and mild degenerative joint
disease of the spine, likely caused and aggravated by the obesity.”
(Id.).
b.

Psychological Impairment Evidence.

Dr. Del Tredici, Plaintiff’s family physician diagnosed her
with anxiety and depression.
F at 1).

(Doc. 8-22, Exhibits 44F at 2 and 48

Dr. Reif, Plaintiff’s treating neurologist, diagnosed her

12

with depression and somatization disorder.
at 1-2).

Dr. Taswir, an examining consultant, diagnosed Plaintiff

with depression and adjustment disorder.
at 3-4)).

(Doc. 8-21, Exhibit 42F

(Doc. 8-18, Exhibit 23F

Dr. Logue the non-examining consultant, diagnosed her

with personality disorder and somatization disorders NOS (Doc. 826, Exhibit 57F at 8).

Thus, there was general agreement among

these physicians that Plaintiff suffers from depression and
agreement by Drs. Reif and Logue that Plaintiff suffers from
somatization disorder.3
IV.

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 conclusions of law:
1.

The claimant meets the insured status requirements
of the Social Security Act through December 31,
2009.

2.

The claimant has not engaged in substantial gainful
activity since June 9, 2009 the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments:

3

Somitization disorder, also known as somataform disorder or conversion disorder, is a longterm (chronic) disorder in which a person has physical symptoms that involve more than one part of
the body, but no physical cause can be found. The pain and other symptoms attendant to
somatization disorder are real and not contrived. See National Institute of Health website at
www.nih.gov.
13

somatoform and conversion disorders, personality
disorder, dysthymic disorder, obesity and headaches.
(20 CFR 404.1520(c) and 416.920(c)).
4.

The claimant does not have an impairment or
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
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

5.

After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that she needs to avoid climbing stairs,
rope, ladders, scaffolds, and poles, needs to avoid
operating a motor vehicle and large equipment
machinery, can occasionally stoop, bend to the
waist, kneel, crouch, crawl and squat, can
occasionally reach bilaterally overhead, and due to
headaches, should avoid loud and very loud noise
intensity levels, which are compatible with the
noise level in a can manufacturing department and a
rock concert, front row.

The claimant needs to

avoid working around or with hazardous machinery, in

14

high exposed places, with large fast-moving
machinery on the ground, around or with sharp
objects, and around or with toxic or caustic
chemicals.

The claimant retains the mental capacity

for unskilled work that can be learned on the job in
a short period of time and requiring no interaction
with the general public and occasional interaction
with co-workers.
6.

The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).

7.

The claimant was born on October 6, 1974 and was 34
years old, which is defined as a younger individual
age 18-44, on the alleged disability onset date.
(20 CFR 404.1563 and 416.963).

8.

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

(20 CFR

404.1564 and 416.964).
9.

Transferability of job skills is not material to the
determination of disability because using the
Medical Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether
or not the claimant has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix
2).

15

10.

Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as
defined in the Social Security Act, from October 20,
2008, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

V.

The 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

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

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,
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).
16

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

20 CFR §§

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

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

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

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(Doc. 8-2 at 26).
VI. 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.
17

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
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).
18

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

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

19

included in the record.”
Cir. 2004).

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

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

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

the Cotter doctrine is not implicated.”

Hernandez v.

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

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

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

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
20

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).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

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

Id.

“These

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

Hess v. Secretary of Health,

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

As such,

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

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
21

strictly construed.”

Id.

B.

Plaintiff’s Allegations of Error.

1.

Whether the ALJ Erred by Failing to Comply with the
Remand Order of the Appeals Council Dated May 17, 2012?

Plaintiff contends that the ALJ erred by failing to comply
with the remand order of the Appeals Council dated May 17, 2012.
(Doc. 10 at 16).5

Suffice it to say that this Court’s review of

the record discloses that the ALJ functionally complied with the
remand order by taking additional testimony from a vocational
expert and additional testimony regarding the severity of
Plaintiff’s mental impairments from a medical expert.

Our review

of the record persuades the Court that the ALJ complied technically
with both directives.
Plaintiff argues that the ALJ did not properly evaluate the
effect of her use of an ambulation device on her capacity for
sedentary work.

The hearing transcript demonstrates otherwise.

The vocational expert clearly considered the effect of Plaintiff’s
use of a walker in concluding that she retained the RFC to perform
such sedentary jobs as final assembler, bonder of semi-conductors,
and table worker.

(Doc. 8-2 at 70).

The ALJ appropriately relied

upon the VE’s testimony in crafting her RFC, an RFC that was

5

The Court must note that the Appeals Council apparently believed that the ALJ complied
with its remand order of May 17, 2012 because it sanctioned her subsequent order denying benefits.
(See Doc. 8-2 at 2).
22

confined to sedentary work with additional limitations that
adequately accounted for Plaintiff’s use of a walker.

Accordingly,

Plaintiff’s argument regarding the ALJ’s supposed failure to comply
with the terms of the remand order must be rejected.
2.

Whether Substantive Evidence Supports the ALJ’s Step 2
Evaluation?

Plaintiff’s argument regarding the ALJ’s evaluation at Step 2
concerns the ALJ’s finding that her carpel tunnel syndrome and
lower extremity weakness were “non-severe” impairments.

The

Court’s review of the medical evidence persuades it that there was
an ample evidentiary basis to conclude that Plaintiff’s carpel
tunnel syndrome is not a severe impairment.

No physician has

described Plaintiff’s carpel tunnel syndrome as severe.

In fact,

both her treating physicians, Dr. Del Tredici and Dr. Reif,
executed Physical Residual Functional Capacity Questionnaires in
which they indicated that Plaintiff does not have significant
limitations with respect to reaching, handling or fingering.

(Doc.

8-21, Exhibit 41F at 4; Doc. 8-21. Exhibit 42 at 4; and Doc. 8-22,
Exhibit 44F at 4).

Thus, the Court finds that the ALJ’s conclusion

that Plaintiff’s carpel tunnel syndrome was “non-severe” was
supported by substantial evidence.
With respect to Plaintiff’s argument regarding the severity of
her lower extremity weakness, the Court finds that the medical
evidence makes this a much closer call.

23

Nevertheless, because the

ALJ found that Plaintiff is beset by various severe impairments,
even if Plaintiff’s lower extremity weakness does, in fact,
constitute an additional severe impairment, the failure to
characterize it as such at Step 2 of the process constitutes no
more than harmless error because Step 2 is a mere screening device
that exists to “dispose of groundless claims.”

Newell v.

Commissioner of Social Security, 347 F.3d 541, 546 (3d. Cir. 2003).
Because the ALJ continued her evaluation of Plaintiff’s claim and
moved on to the subsequent steps in the required evaluative
process, and because the ALJ ultimately accounted for Plaintiff’s
lower extremity weakness in her hypothetical question to the
vocational expert by confining Plaintiff to sedentary work with
additional limitations, Plaintiff’s claim of a defect at Step 2
must be rejected.

See also Rutherford v. Barnhart, 399 F.3d 546,

553 (3d. Cir. 2005) and Popp v. Astrue, 2009 WL 959966 (W.D. Pa.
2009).
3.

Whether the ALJ Erred by Finding the Plaintiff Does Not
Meet Listing 12.07?

Plaintiff argues that her somatoform disorders meet all
criteria to satisfy Listing 12.07.

Listing 12.07 A Somatoform

Disorders provides, inter alia, that there must be medical
documentation of a “persistent non-organic disturbance” of the “use
of a limb”, or “movement and its control (e.g. coordination
disturbance, psychogenic seizures, akinesia, dyskinesia” or

24

“unrealistic interpretation of physical signs or sensations
associated with the preoccupation or belief that one has a serious
disease or injury”.

The record demonstrates that Plaintiff has

been affected by each of these symptoms.

Yet, to be entitled to

benefits under Listing 12.07, Subsection B thereof must also be
satisfied.

Subsection B provides that the symptoms identified in

the Subsection A criteria must result “in at least two of the
following: (1) Marked restriction of activities daily living; (2)
Marked difficulties in maintaining social functioning; (3) Marked
difficulties in maintaining concentration, persistence, or pace; or
(4) Repeated episodes of decompensation each of extended duration.”
There is no evidence in the record that criteria #4 regarding
decompensation episodes has been satisfied.
Three physicians, Dr. Del Tredici, Reif, and Logue, concur
that Plaintiff suffers from somatoform disorder.

They disagree,

however, on the extent to which Plaintiff’s somatoform disorder
reduces her capacity to work.

While Dr. Logue, the non-examining

consultant, found that Plaintiff has persistent non-organic
disturbance of her use of her limbs, movement, sensation, and
unrealistic interpretations of physical signs or symptoms
associated with the preoccupation or belief that she had a serious
disease or injury (Doc. 8-26 at 87), she found, nonetheless, that
Plaintiff had no “marked” degree of limitation with respect to the
criteria of Listing 12.07B.

(Doc. 8-26 at 92).

25

The treating

physicians, Drs. Del Tredici and Reif, did conclude that Plaintiff
would have a “marked” inability to maintain concentration,
persistence and pace (Doc. 8-22 at 41; Doc. 8-21 at 55).

The Court

has not been directed, however, to any medical opinion indicating
that Plaintiff has a “marked” inability to maintain social
functioning or to perform the activities of daily living.

For that

reason, the Court finds that Plaintiff has not met her burden to
demonstrate “marked” restrictions in the requisite two criteria
under Listing 12.07B.
4.

Whether the ALJ Improperly Concluded That There is Work
Available in the National Economy That Plaintiff Can
Perform?

Plaintiff argues that the ALJ’s assessment of her RFC was so
defective as to render invalid her conclusion that work exists in
the national economy that Plaintiff can perform.
30).

(Doc. 10 at 25-

Part of Plaintiff’s argument involves the assertion that the

ALJ inappropriately relied upon the VE’s testimony that an
individual who requires the use of a quad cane to walk can perform
a sedentary job.

It is true that the Social Security

Administrations’ definition of sedentary work (See 20 CFR
404.1567(a)) contemplates some degree of standing and walking.
Nonetheless, the VE testified that his experience regarding jobs
that he opined Plaintiff could perform (final assembler, bonder of
semi-conductors, and table worker) persuaded him that the use of a
26

quad cane would not erode the occupational base for those jobs
(Doc. 8-2 at 70).

This testimony provided a sufficient evidentiary

basis for the ALJ to conclude that Plaintiff’s use of a quad cane
did not prevent her from performing these jobs.
Plaintiff’s argument is also based on the assertion that,
because sedentary work generally requires the ability to lift up to
ten pounds (See 20 CFR 404.1567(a)), the ALJ incorrectly relied
upon the VE’s determination that the aforementioned jobs were
within Plaintiff’s physical capacity.

The Court notes that the

VE’s previously referenced testimony regarding his familiarity with
the physical requirements of the positions in question does provide
a reasonable basis for the ALJ’s conclusion.

Beyond that, Dr. Del

Tredici opined that Plaintiff could occasionally lift up to ten
pounds and rarely could lift that weight: (Doc. 8-22 at 42).
Plaintiff’s argument regarding her lifting limitations does not
require our rejection of the ALJ’s decision on this point.
Still another aspect of Plaintiff’s argument involves her
assertion that her carpel tunnel syndrome deprives her of the
requisite manual dexterity to perform the jobs identified by the
VE.

While it is true that these jobs do require, as Defendant

acknowledges (Doc. 13 at 39), frequent handling and fingering, both
Plaintiff’s treating physicians have indicated the Plaintiff has no
significant limitations in this regard.
22 at 43).

(Doc. 8-21 at 57; Doc. 8-

Thus, there was an adequate evidentiary basis for the

27

ALJ to find that Plaintiff’s carpel tunnel syndrome did not prevent
her from performing the jobs identified by the VE.
Finally, the Plaintiff argues that the ALJ’s hypothetical
question to the VE failed to adequately account for her
difficulties with concentration, persistence and pace.

The only

component of the ALJ’s hypothetical question that addressed these
mental impairments provided: “The claimant retains the mental
capacity for unskilled work that can be learned on the job in a
short period of time and requiring no interaction with the general
public and occasional interaction with co-workers.”
20).

(Doc. 8-2 at

Dr. Del Tredici and Dr. Reif, Plaintiff’s treating

physicians, both indicated on functional capacity questionnaires
that Plaintiff’s conditions would “frequently interfere with [her]
attention and concentration needed to perform even simple work
tasks.”

(Doc. 8-21 at 55; Doc. 8-22 at 41).

6

Dr. Logue, the non-

examining consulting physician, acknowledged that Plaintiff had
“moderate difficulty” in maintaining concentration, persistence,
and pace due to her Somatoform Disorder.

(Doc. 8-26 at 92).

The

ALJ relied upon Dr. Logue’s assessment of Plaintiff’s limitations,
as to her concentration, persistence, and pace in crafting her
hypothetical question to the VE and, ultimately, her RFC
determination.
6

“Frequently” in the context of the questionnaires completed by Drs. Del Tredici and Reif
means “34% to 66% of an 8-hour working day.” Thus, their assessments clearly indicate “marked”
impairment in maintaining concentration, persistence, and pace.
28

The Court has severe misgivings about whether Dr. Logue’s
assessment constitutes the requisite substantial evidence (See
Richardson v. Perales, supra) necessary to support the ALJ’s
determination of Plaintiff’s RFC.

Dr. Logue, who has never laid

eyes upon the Plaintiff, has somehow concluded that Plaintiff’s
Somatoform Disorder, which she and two treating physicians have all
agreed exists, is not severe enough to be disabling.

Dr. Logue’s

explanation is that her evaluation of Dr. Tazwir’s assessment of
Plaintiff’s limitations resulting from her Somatoform Disorder
indicates that Dr. Tazwir’s assessment, which found some “marked”
impairments, were overly restrictive.

(Doc. 8-2 at 47).

However,

Dr. Logue stated that she examined Plaintiff’s situation solely
from a psychiatric standpoint while taking into account the
physical ramifications of the conversion disorder only.

7

Thus, in

assessing Plaintiff’s limitations regarding concentration,
persistence and pace, Dr. Logue failed to account for Plaintiff’s
migraine headaches- - which have been found by the ALJ to
constitute a severe impairment and which, according to Plaintiff’s
consistent testimony at three hearings, occur at least once a week
and can last up to six hours.

These migraine headaches are an

impairment separate from and unrelated to Plaintiff’s Somatoform
Disorder.

7

Conversion disorder is simply alternative nomenclature for Somatoform Disorder. See note

3 ante.
29

Significantly, Dr. Logue’s testimony does not directly address
the severe impairments documented by the treating physicians, Drs.
Del Tredici and Reif.

Dr. Logue does emphasize that some of

Plaintiff’s physical complaints of stroke-like symptoms and
weakness and numbness in her lower extremities cannot be documented
objectively through objective tests such as EEG studies or a Holter
Monitor.

Yet, by definition, the hallmark of Somatoform Disorder

is that the physical symptoms it produces cannot be objectively
documented but are, nonetheless, real.

Thus, Dr. Logue’s emphasis

on a lack of objective findings to support some of Plaintiff’s
physical complaints seems irrelevant and inconsistent with her own
acknowledgment that Plaintiff suffers from Somatoform Disorder.
(Doc. 8-26 at 76).
The Court is certainly aware that, in an appropriate case, the
ALJ is permitted to subordinate the findings of treating physicians
to those of a non-examining medical consultant when the findings of
the treating physicians are not well supported by clinical and
laboratory diagnostic techniques or their opinions are inconsistent
with other evidence in the case file.
404.1527(c)(2) and 416.927(c)(2).

See 20 C.F.R. §§

However, having carefully

reviewed this extensive file, the Court can find no obvious
inconsistencies in the medical opinions proffered by the treating
physicians and the lack of diagnostic test results to establish
Plaintiff’s physical symptoms logically flows, as indicated above,

30

from her diagnosis of Somatoform Disorder.

Dr. Logue’s explanation

of why her sense of Plaintiff’s restrictions is less restrictive
than that of Dr. Tazwir and the treating physicians is unpersuasive
and lacking in detail.

It simply does not constitute that quantum

of evidence that a reasonable mind might accept as adequate to
support a conclusion as required by Richardson v. Perales and its
progeny.

Consequently, this Court finds that the Plaintiff’s RFC

as determined by the ALJ was not supported by substantial evidence.
5.

Whether the ALJ Appropriately Evaluated the Medical
Opinion Evidence?

As explained in the preceding section of the Memorandum, the
Court has misgivings regarding the ALJ’s decision to subordinate
the opinion of two treating physicians to that of a non-examining
consultant in the context presented by this case.

Perhaps prompted

by the testimony of Dr. Logue discussed above, the ALJ “accorded
little weight” to the opinions expressed by the treating
neurologist, Dr. Reif.

(Doc. 8-2 at 25).

Dr. Reif’s opinion is

also assailed because it “appears overstated in comparison to his
treatment notes, which repeatedly show that there is no objective
reason for the claimant’s complaints.” (Id.).

Similarly, Dr. Del

Tredici’s assessment is “given little weight since it is not
supported by the evidence of record including EKGs, Holter Monitor
Studies, EEGs, MRIs, MRHs or MRAs.

31

The Plaintiff is also non-

compliant with treatment.”

8

Here again, the conclusion that

Plaintiff’s complaints of pain and other symptoms secondary to her
Somatoform Disorder are less severe than she alleges because they
are unsupported by objective testing is illogical.

The sine qua

non for a diagnosis of Somatoform Disorder is that there will be no
objective findings to support the patient’s complaints.

Thus, the

reasons advanced by the ALJ to justify her refusal to credit the
opinions of the treating physicians in this case are utterly
unpersuasive and the Court finds that the medical evidence here was
improperly evaluated.
6.

Whether the ALJ’s Findings Regarding Plaintiff’s
Credibility are Based Upon Substantial Evidence?

Plaintiff asserts that the ALJ’s finding that she is only
partially credible in describing her impairments is unsupported by
the evidence.

The ALJ’s opinion includes the now familiar

recitation that “the undersigned finds that the claimant’s
medically determinable impairment could reasonably be expected to
cause the alleged symptoms; however, the claimant’s...statements
concerning the intensity, persistence, and limiting effects of
these symptoms are not entirely credible for the reasons explained

8

The ALJ’s statement that Plaintiff is “non-compliant with treatment” appears to be related
to Dr. Logue’s testimony that, on one occasion in October of 2009, Plaintiff’s blood chemistry
revealed that she had not taken the prescribed dosage of medicine designed to alleviate her migraine
headaches. (Doc. 8-2 at 10 and Doc. 8-26 at 73). Given Plaintiff’s lengthy treatment history for
migraines dating back more than six years, her failure to take the requisite dosage of this medication
on one occasion is hardly evidence of a history of non-compliance with her treatment regimen.
32

in this decision.”

(Doc. 8-2 at 21).

The ALJ relies, in part, on the already rejected notion that
the Plaintiff’s Somatoform Disorder is not as limiting as she
alleges due to the absence of objective findings to support her
physical symptoms.

The ALJ also points to evidence of record,

however, which does tend to support the conclusion that Plaintiff’s
limitations may not be quite as severe as her testimony would
indicate.

This other evidence includes: (1) a December 3, 2009

letter from Dr. Max Lowden of the Neurology Clinic at the Hershey
Medical Center that indicates that Plaintiff told him that she was
experiencing about one bad headache a month” (Doc. 8-14 at 30); (2)
a September 20, 2012 letter from Dr. Reif to Dr. Del Tredici that
notes that Plaintiff had five/five strength in her upper
extremities on that date (Doc. 8-22 at 47); (3) a November 1, 2012
Disability Evaluation by Dr. Stanley Bree that reports that
Plaintiff was able to get on and off the examination table without
assistance (Doc. 8-22 at 54); and (4) Dr. Tazwir’s Psychiatric
Consultative Examination of September 27, 2010 that indicates that,
despite the fact that Plaintiff has been under psychiatric care for
more than two years, she has required no inpatient admissions or
psychotherapy.

(Doc. 8-18 at 23).

While these bits of evidence do not compel the conclusion that
Plaintiff was exaggerating her impairments, they are enough to form
a reasonable basis for the ALJ’s conclusion that she was only

33

partially credible in this regard.

Consequently, we will not fault

the ALJ’s determination on this point.
VIII.

Conclusion.

For the reasons cited in the foregoing Memorandum, the
Plaintiff’s assignments of error are rejected but for her
contentions that the ALJ’s RFC assessment is unsupported by
substantial evidence of record and that the ALJ improperly
subordinated the medical opinions of her treating physicians to
that of the non-examining consultant who failed to provide an
adequate rational for disbelieving the conclusions reached by the
treating physicians.

An Order consistent with these determinations

will be filed contemporaneously herewith.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: August 10, 2015

34