Whitzel v. Commissioner of Social Security

Filing 15

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 10/13/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN WHITZEL,

:
:CIVIL ACTION NO. 3:15-CV-456
:
:(JUDGE CONABOY)
:
:
:
:
:
:
:

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

___________________________________________________________________
MEMORANDUM
Here the Court considers Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act.

(Doc. 1.)

In the December 15, 2015,

Disability Report Plaintiff alleged that the following conditions
limited his ability to work: back injury–-herniated discs; back
surgeries including one fusion; anxiety; panic attacks; depression
disorder; and no feeling in his right leg.

(R. 284.)

When he

applied for DIB and SSI Plaintiff alleged disability beginning on
April 8, 2008.

(R. 22.)

to January 10, 2009.

However, he later amended the onset date

(R. 45.)

The Administrative Law Judge (“ALJ”) who evaluated the claim,
Patrick S. Cutter, concluded that Plaintiff’s severe impairments of
lumbar spine pathology, depression, anxiety, and pain disorder did

1

not alone or in combination with other impairments meet or equal
the listings.

(R. 24-26.)

The ALJ found that Plaintiff had the

residual function capacity (“RFC”) to perform light work with
certain nonexertional limitations and that he was capable of
performing jobs that existed in significant numbers in the national
economy.

(R. 26-36.)

disabled under the Act.

The ALJ therefore found Plaintiff was not
(R. 36.)

With this action, Plaintiff argues that the decision of the
Social Security Administration is error for the following reasons:
1) the ALJ failed to properly apply the treating physician rule
(Doc. 12 at 16); 2) the ALJ erred in giving significant weight to
the limitations set forth by an examining doctor but not including
those limitations in his hypothetical to the vocational expert (id.
at 19); 3) the ALJ erred in putting significant weight on the GAF
scores (id. at 20); and 4) the ALJ erred in failing to find
Plaintiff and his father credible (id. at 21).

After careful

consideration of the administrative record and the parties’
filings, I conclude Plaintiff’s appeal is properly denied.
I. Background
A.

Procedural Background
On December 7, 2011, Plaintiff filed applications for DIB and

SSI.

(R. 22.)

As noted above, Plaintiff initially alleged

disability beginning on April 8, 2008, due to a number of physical
and mental conditions (R. 284) and later amended the onset date to
2

January 10, 2009 (R. 45).
April 4, 2012.

(R. 22.)

The claims were initially denied on
Plaintiff filed a request for a review

before an ALJ on April 20, 2012.

(Id.)

On August 2, 2013,

Plaintiff, represented by an attorney, appeared and testified at a
hearing.

(R. 42-86.)

testified.

(Id.)

Vocational Expert (“VE”) Brian Bierley also

ALJ Patrick Cutter issued his decision on August

12, 2013, finding that Plaintiff was not disabled under the Social
Security Act through the date of the decision.

(R. 22-36.)

On

August 30, 2013, Plaintiff requested a review with the Appeal’s
Council.

(R. 15-18.)

The Appeals Council denied Plaintiff’s

request on January 30, 2015.

(R. 8-14.)

On March 13, 2015, the

Appeals Council set aside its January 30, 2015 action to consider
additional information.

(R. 1.)

The Appeals Council again denied

Plaintiff’s request for review, concluding that the additional
information related to a time after the ALJ issued his decision on
August 12, 2013, and, therefore, it did not affect the decision
about whether he was disabled beginning on or before that date.
(R. 2.)

Plaintiff was advised that if he wanted consideration of

whether he was disabled after August 12, 2013, he would have to
apply again.

(Id.)

On March 5, 2015, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on May 7, 2015.

(Docs. 4, 5.)

Plaintiff filed his supporting

3

brief on August 12, 2015.

(Doc. 12.)

opposition brief on August 26, 2015.

Defendant filed her
(Doc. 13.)

With the filing

of Plaintiff’s reply brief (Doc. 14) on September 23, 2015, this
matter became ripe for disposition.
B.

Factual Background
Plaintiff was born on October 15, 1969.

(R. 35.)

He has a

high school education and past relevant work as a truck driver and
warehouse worker.

(R. 34.)

1.

Impairment Evidence

a.

Physical Impairment Evidence
Plaintiff had three surgeries on his lower back, the last

being in January 2009.

(R. 45.)

He has been seen by several

medical professionals and has had extensive treatment and testing
for his back problems.
i.

Stephen Powers, M.D.
Plaintiff’s January 8, 2009, fusion surgery was performed by

Steven Powers, M.D., of the Pennsylvania Neurosurgery and
Neuroscience Institute.

(R. 405.)

Two views of the lumbar spine taken on June 3, 2009, for
postsurgical evaluation showed stable changes of L5 and S1 with no
acute lumbar spine abnormality.

(R. 987.)

At a follow-up visit on October 12, 2009, Dr. Powers noted
that other than some intermittent cramping of his right leg and
some sleep disturbance, Plaintiff was “doing quite well.”
4

(R.

419.)

In addition to reporting on Plaintiff’s back condition In

correspondence to Plaintiff’s primary care physician, William S.
Kauffman, M.D., Dr. Powers set out an assessment of Plaintiff’s
overall situation.

(Id.)

Unfortunately, he was laid off by his
employer about 1½ months ago and he is now
caught up trying to find healthcare insurance
for himself and also for his daughter that he
has with his divorced wife, and trying to as
he says, “find enough money to work around
his monthly beer money.” His current
situation is that he doesn’t have any kind of
and [sic] game that I can see in terms of his
employment. He is being advised by a couple
people to seek out social security
disability; however, I told him that at age
39 I think that is a huge mistake. I know he
has a lawyer involved and talked to him about
trying to get some kind of retraining to be
able to work within the restrictions that
will be placed upon him because of his lumbar
spine disease.
His plain x-rays today show excellent
early intradiscal and interbody fusion across
L5-S1 space with a very stable appearing
construct. I don’t see any changes at L4-5.
His examination shows normal strength in both
lower extremities and now lower sciatic
stretch or femoral stretch signs. His
current medications are Lyrica (75 mg, bid)
and Tramadol (100 mg, one per day). He is
not taking any anti-inflammatories because he
had nausea when he took Celebrex. I think
that he’s capable of returning to work at
this time with the permanent restrictions
that he not lift or carry over 30 pounds and
he needs to find some type of employment that
allows him to go from sitting to standing
frequently because of his chronic lower back
pain related to his three previous surgeries.
He may need to undergo some type of
educational retraining and I think this is a
reasonable step to take in terms of getting
5

him back into the work place. Again, I think
he is way too young to be considered for any
type of long-term disability income as this
would do nothing but create another burden
for or [sic] society. I am planning on
having him return to see me in January for a
final picture of his neck and if everything
looks good at that time as it does now, then
I will release him from my care.
(R. 419-20.)
On July 9, 2010, Dr. Powers referred Plaintiff to Justin
Fisher, M.D., for a nerve conduction study because of recurrent
back pain radiating into the right lower extremity and weakness of
the right ankle.

(R. 385.)

Dr. Fisher concluded the following:

“Abnormal study[;] [t]he electrodiagnostic evidence reveals, mild,
chronic, right L5 and S1 radiculopathies, without evidence of
active denervation at either level[;] there is no electrodiagnostic
evidence of a lumbosacral plexopathy or neuropathy affecting the
right lower extremity.”

(R. 386.)

On October 14, 2011, Plaintiff was at the Pennsylvania
Neurosurgery and Neuroscience Institute with complaints of
worsening right leg pain and numbness over the preceding four
months.

(R. 567.)

The plan was for Plaintiff to have a CT scan

and MRI of the lumbar spine and to be seen again following testing.
(Id.)

Plaintiff was advised that an EMG would be helpful to

diagnose his condition but he refused because of the pain he
suffered with previous EMG/NCS.

(Id.)

On November 3, 2011, Dr. Powers saw Plaintiff.

6

(R. 568-569.)

He provided the following summary in a letter to Dr. Kauffman:
This gentleman has had a long-standing
problem with the L5 Root which,
unfortunately, did not recover completely.
He did go off Valium recently because
worker’s compensation carrier apparently
denied allowing him to keep using that. He
thinks that this might have triggered some of
the increased discomfort in his leg. I do
not find anything on exam to suggest a
progressive problem or an acute problem here.
I believe that he has chronic neuropathic
pain involving the right L5 nerve root, and
he should be treated with medication in an
attempt to try to resolve that. He
apparently had been on Lyrica in the past and
had some response to that but, for vague
reasons, it was stopped. I am going to start
him on Neurontin 100 mg. q.h.s. and increase
this to b.i.d. after 3 days. After a few
days of that, increase it to 3 times a day to
see if this might give some additional relief
in terms of his neuropathic leg pain. I have
basically reassured him. There is nothing
further from a neurosurgical standpoint that
this gentleman needs. He has been released
from our care again.
(R. 569.)
ii. William Kauffman, M.D.
Throughout 2011, Plaintiff complained of a backache to his
family doctor, William Kauffman, M.D.

(R. 590-605.)

In Feburary

2011, Plaintiff’s pain was rated as moderate in severity, Plaintiff
was noted to walk with a mildly antalgic gait, his motor strength
was intact, he appeared well, and there was no sign of acute
distress.

(R. 590.)

Plaintiff again appeared well with no signs

of acute distress in April 2011 and was assessed with backache and
disc disorder.

(R. 592.)

Dr. Kauffman noted that he would try
7

more aggressive medication to “see if we can stay ahead of the pain
so the message works for longer periods of time.”

(Id.)

In May

Plaintiff reported that he was “doing some better, massage helps,
but still just for a short time.”
Plaintiff’s medications.

(Id.)

(R. 594.)

Dr. Kauffman adjusted

In August 2011, Plaintiff reported

that his pain had been somewhat worse and he wondered if he had
another disc “going bad” but messages continued to help.

(R. 600.)

Plaintiff said that he had an IME coming up and expressed a belief
that “the evaluator will be in the back pocket of the insurance
company.”

(Id.)

Examination showed that Plaintiff’s back was

tender around the scar and he had a decreased range of motion with
flexion.

(Id.)

On November 8, 2011 (a few days after Plaintiff saw Dr.
Powers), Plaintiff presented to Dr. Kauffman for right lower limb
pain, reporting it was exacerbated with activity.

(R. 602.)

Plaintiff reviewed the IME findings, stating the doctor had not
been accurate in his reporting.

(Id.)

Dr. Kauffman also reviewed

Dr. Powers’ letter of November 3rd, stating that “[i]n reviewing the
letter, it does not appear Dr. Powers feels that the patient could
go back to work.”

(Id.)

Plaintiff had not yet started the

Gabapentin Dr. Powers had prescribed but planned to do so.

(Id.)

Dr. Kauffman noted that he did not believe Plaintiff was able to
work full-time.

(Id.)

On November 23, 2011, Plaintiff was seen for follow-up and
8

reported to Dr. Kauffman that his pain was about the same but Xanax
seemed to be helping.1

(R. 604.)

Plaintiff also stated that he

would like to work; he was not sure what he would be able to do but
was willing to go back to school and he did not have any skills
that would enable him to do a desk job.

(Id.)

Dr. Kauffman stated

that he was not sure Plaintiff would be willing to do a desk job
for eight hours a day because he would have to get up and move
around and change positions quite a bit.

(Id.)

On February 22, 2012, Dr. Kauffman filled out a Cumberland
County Domestic Relations Physician’s Information Request and
indicated that Plaintiff had been continuously disabled since
October 2008 and it was unknown when he would be able to go to work
because of his back pain.

(R. 675.)

In February 2013, Dr. Kauffman continued to treat Plaintiff
for back pain and Plaintiff reported a tingling pain down his right
leg and difficulty standing, sitting, or walking for any prolonged
periods of time.

(R. 671.)

Plaintiff reported that ibuprofen

helped as did a medication prescribed by another physician.

(Id.)

On examination Plaintiff appeared well with no signs of acute
distress, his mood and affect were normal, he was oriented x3, and
his memory was intact.

(Id.)

On February 20, 2013, Dr. Kauffman completed a Medical Source

1

Xanax, which Plaintiff took instead of Valium, apparently
helps with muscle spasms. (R. 604, 606, 607.)
9

Statement.

(R. 647-52.)

He opined that Plaintiff could lift or

carry up to ten pounds frequently, twenty pounds occasionally, and
never over that.

(R. 647.)

He found that Plaintiff could sit for

one hour, stand for three hours, and walk for one hour at a time
without interruption in an eight-hour workday.

(R. 648.)

Totals

for an eight-hour day were four hours each sitting, walking, and
standing.

(Id.)

The use of his hands was unlimited except that he

could reach overhead only occasionally.

(R. 649.)

Plaintiff could

never operate foot controls with his right foot but could do so
continuously with his left foot.

(Id.)

Dr. Kauffman concluded

that Plaintiff could never climb ladders or scaffolds, stoop,
kneel, crouch, or crawl, and he could occasionally climb stairs and
ramps, and balance.

(R. 650.)

He found that Plaintiff could never

tolerate extreme cold; he could occasionally be exposed to
vibrations, unprotected heights, and moving mechanical parts, and
operate a motor vehicle short distances.

(R. 651.)

Dr. Kauffman

concluded that Plaintiff could not walk a block at a reasonable
pace over rough or uneven surfaces.

(R. 652.)

Dr. Kauffman also

opined that Plaintiff’s limitations first presented in 2008 and
that they had lasted or would last for twelve consecutive months.
(Id.)
iii. Richard Schmidt, M.D.
On October 7, 2011, Richard Schmidt, M.D., a board certified
orthopedic surgeon, performed an independent medical examination.

10

(R. 557.)

Plaintiff reported that he attributed his symptoms to

heavy duty working over an extended period.

(Id.)

His complaints

at the time of the IME were lower back pain on the right side and a
sense of numbness down the outer aspect of the right calf into the
outer aspect of the right foot dorsally. (R. 558.)
no additional complaints.

(Id.)

Plaintiff had

Plaintiff said that he

occasionally uses a cane in the house but not outside and he walks
about one-half mile a day as part of an exercise program.

(Id.)

On examination, Plaintiff complained of some mild tenderness on
palpation over the lower back on either side of the incision and
decreased sensation over the outer aspect of the right calf and
over the dorsal lateral aspect of the right foot.

(R. 559.)

Dr.

Schmidt recorded that distal thigh, mid calf and ankle
circumferences were equal by measurement, all deep tendon reflexes
were +2 symmetric and brisk including right ankle jerk reflexes,
motor strength was +5 throughout, both lower extremities were
symmetrically strong, Plaintiff had a negative sitting root tension
test actively performed to 90 degrees with no lower back or leg
complaints, and a normal gait during the examination and when
leaving the examination room.

(Id.)

Dr. Schmidt also performed

active range of motion testing of the lower back: Plaintiff was
able to forward flex and bring his fingertips down to the level of
mid tibias, lateral bending was to 30 degrees bilaterally, and
Plaintiff was able to achieve full extension of the lumbar spine.

11

(Id.)

Dr. Schmidt’s Impression included the following:
While the patient reports no improvement in
his symptoms, I would note he is
neurologically intact from the standpoint of
any active radiculopathy. He does have some
mild decrease in sensation but motor strength
and reflexes are normal.
My impression at this time is that this
patient is essentially at maximum medical
improvement. I do not see any need or
benefit for further massage therapy. In
addition, the patient’s medications should
not be increased. I believe the patient is
capable of working in a light duty capacity.

(R. 560.)
Dr. Schmidt also completed an Estimated Physical Capacities
form.

(R. 561.)

He estimated that in an eight-hour day, Plaintiff

could stand for three to five hours, sit for three to five hours,
sit/stand for five to eight hours, walk for one to three hours, and
drive for one to three hours.

(R. 561.)

Dr. Schmidt estimated

that Plaintiff could occasionally bend, squat, climb stairs, climb
ladders, kneel, and crawl and he had no limitations in reaching
above his shoulders or using his feet (foot controls).

(Id.)

Plaintiff had no restrictions in using his upper extremities for
repetitive grasping and manipulation.

(Id.)

b. Mental Health Impairments
i.

Christopher Royer, Psy.D.
On March 8, 2012, Christopher Royer, Psy.D., performed a

consultative psychological examination.

(R. 617-22.)

Plaintiff

told Dr. Royer about his various pain issues including constant
12

muscle pain in his back, that he tries to avoid medication as much
as possible, and he notices the pain more when he does not have
distractions.

(R. 620.)

Plaintiff also reported anxiety and that

it had been a lifelong problem for him.

(Id.)

The symptoms

include nausea, that he vomits at times, his heart rushes, he feels
lightheaded, and he has trouble taking a long trip in a car, being
with others in public places, and going out to eat.

(Id.)

Plaintiff also said that he feels “obsessive-compulsive”–-he is
particular with his clothes, checks his doors for being locked,
puts his shoes in certain spots, and almost lost his job at the
warehouse before the back injury because of obsessive issues.
(Id.)

In addition, Plaintiff reported that he gets depressed and

stays in bed, he sleeps poorly without medications, his appetite
comes and goes, and he can go long periods without something to
eat.

(R. 621.)
Plaintiff’s mental status examination showed that he was

fairly oriented, his ability to recall a list of four words after a
brief delay was impaired, auditory attention was adequate, he
tested in the moderately impaired range on a test of mental
arithmetic, he made no errors on a test of serial three addition,
his expressive speech was fluent, he was able to follow and
comprehend all test instructions, his reasoning by analogy was
within normal limits, and overall his fund of information was
considered to be adequate for his age, education and background.

13

(R. 621-22.)

Dr. Royer found Plaintiff’s affect to be quite

anxious, he was talkative and somewhat pressured in his manner, he
was “over-elaborative” when he was talking about his problems, and
he saw himself as rarely, if ever, able to achieve periods where he
is not anxious.

(R. 622.)

Dr. Royer’s Impression included the

findings that Plaintiff met the diagnostic classifications for
generalized anxiety disorder and pain disorder secondary to both
medical and psychological features, and he assessed a GAF of 50.
(Id.)
Dr. Royer also completed a mental health source statement in
which he opined that due to his anxiety and poor memory: Plaintiff
had slight difficulty in his ability to understand, remember, and
carry out short, simple instructions; he had moderate difficulty in
his ability to understand, remember, and carry out detailed
instructions; and he had moderate difficulty making simple workrelated decisions.

(R. 617.)

Because Plaintiff was very anxious,

prone to panic, Dr. Royer concluded Plaintiff had marked
difficulties interacting appropriately with the public and
coworkers and marked difficulty responding appropriately to changes
in a routine work setting; and Plaintiff had moderate difficulties
interacting appropriately with supervisors and responding
appropriately to changes in ta routine work setting.
ii.

(Id.)

Henry Wehman, M.D.
On June 27, 2012, Henry Wehman, M.D., of the Stevens Center

14

performed a psychiatric evaluation after Plaintiff was referred
because of depression and anxiety.

(R.

655-57.)

Plaintiff

complained of increased anxiety, depression, and panic attacks.
(R. 655.)

He reported that his primary care physician had

prescribed alprazalon, 0.5 mg. t.i.d. but Plaintiff said he takes
it only as needed and that the medication “takes the edge off” but
he still has panic attacks.

(Id.)

Plaintiff said he had his first panic attack at age twenty and
since then had significant agoraphobia and panic attacks since
then.

(Id.)

He added that the panic attacks were limited to

travel and to events in which he would be exposed to many people
such as going out to dinner, shopping, going through tunnels or
over bridges or in general anywhere he fees he cannot escape if he
needs to.

(Id.) Plaintiff explained that his depression worsened

in 2008 related to his loss of physical function and inability to
work.

(R. 656.)

Dr. Wehman recorded that Plaintiff had no previous psychiatric
treatment.

(Id.)

On mental status examination, Dr. Wehman noted

that Plaintiff’s range of affect was constricted and somewhat
intense, his mood anxious and depressed, cognitive functions were
within normal limits, and his judgment and insight appeared to be
fairly good.

(Id.)

He diagnosed Plaintiff with major depressive

disorder, recurrent and without psychotic features, panic disorder
with agoraphobia, obsessive compulsive personality traits, and a

15

GAF of 50.

(R. 657.)

Following this evaluation, Plaintiff continued to attend
regular medication management sessions with Dr. Wehman.

On

September 6, 2012, Dr. Wehman reported that Plaintiff had a normal
affect, depressed mood, normal stream of thought and thought
content, generally intact cognitive and executive functions, and a
GAF of 50.

(R. 661.)

On September 20, 2012, Dr. Wehman reported

that Plaintiff had a normal affect, depressed mood, normal stream
of thought and thought content, generally intact cognitive and
executive functions, and a GAF of 60.

(R. 662.)

On November 29,

2102, Dr. Wehman reported that Plaintiff had a normal affect,
euthymic mood, normal stream of thought and thought content,
generally intact cognitive and executive functions, and a GAF of
80.

(R. 660.)

On February 21, 2013, Dr. Wehman reported that

Plaintiff had a normal affect, normal stream of thought and thought
content, and a GAF of 60.

(R.659.)

On May 28, 2013, Dr. Wehman

reported that Plaintiff had a normal affect, euthymic mood, normal
stream of thought and thought content, and a GAF of 80.

(R. 658.)

c. Consultative Opinions
i.

Hong. S. Park, M.D.
On January 30, 2012, Hong. S. Park, M.D., the State agency

medical consultant, reviewed Plaintiff’s records and found the
following: Plaintiff was able to lift and/or carry twenty pounds
occasionally and ten pounds frequently; he was able to stand and/or

16

walk for six hours in an eight-hour day; he could sit for about six
hours in an eight-hour day; he would need to periodically alternate
between sitting and standing to relieve pain and discomfort; and he
was unlimited in his ability to push and pull.

(R. 137-38.)

Dr.

Park opined that Plaintiff should avoid concentrated exposure to
vibrations.
ii.

(R. 138.)

Michael Suminski, Ph.D.
On April 2, 2012, Michael Suminski, Ph.D., the State agency

psychological consultant, completed a Mental Residual Functional
Capacity Assessment.

(R. 139.)

Dr. Suminski concluded that

Plaintiff had understanding and memory limitations in that he was
moderately limited in his ability to understand and remember
detailed instructions but could understand simple instructions.
(R. 139-40.)

He found that Plaintiff had sustained concentration

and persistence limitations in that he was moderately limited in
his abilities to carry out detailed instructions and to maintain
attention and concentration for extended periods.

(R. 140.)

Regarding interaction limitations, Dr. Suminski opined that
Plaintiff was moderately limited in his ability to interact
appropriately with the general public and his ability to accept
instructions and respond appropriately to criticism from
supervisors.

(Id.)

He concluded that Plaintiff was moderately

limited in his ability to respond appropriately to changes in the
work setting.

(R. 141.)

In narrative form, Dr. Suminski stated

17

the following:
The medical evidence indicates that the
claimant is able to function in simple
routine job tasks that require him to follow
simple one and two-step instructions. He can
use a personal computer. His ADLs are
functional. He can follow written and spoken
instructions despite his anxiety. He goes
out alone, drives, shops and manages money.
(R. 141.)
d. Other Opinion Evidence
Plaintiff’s father, Paul Whitzel, completed a Function Report
- Adult - Third Party on December 28, 2011. (R. 312-19.)

Mr.

Whitzel said that Plaintiff’s ability to work was limited in that
he could not stand or sit in one position for very long.

(R. 312.)

He noted that Plaintiff was unable to bend over to tie his shoes
and he was unable to do household chores because of pain and his
inability to bend and lift.

(R. 314-15.)

Mr. Whitzel said that

Plaintiff keeps in touch with others on the phone and the computer
and in person, and the places he goes on a regular basis are to the
doctor and for therapy.

(R. 316.)

He noted that many abilities

were limited because of Plaintiff’s back problems but he was good
at following instructions and getting along with authority figures.
(R. 317-18.)

He also noted that Plaintiff had a lot of stress for

which he was on medication and he handled changes in routine well.
(R. 318.)
2.

Hearing Testimony
At the August 2, 2013, hearing, Plaintiff testified that he
18

was unable to work because he lost a lot of range of motion after
his last surgery and is limited in just doing normal, routine
things like putting on his shoes and there are days that he does
not even want to get out of bed with the combination of back pain
and depression.

(R. 49.)

He added that he has trouble walking

because of numbness and tingling in his right leg, a problem that
caused him to fall down the steps at home in the middle of the
night a few months before the hearing.

(Id.)

Plaintiff noted that

his anxiety and depression also kept him from working–-he can just
stay in bed a half day or more with no motivation and/or to avoid
the outside world.

(R. 49-50, 53.)

Plaintiff described his back pain as similar to a constant
toothache.

(R. 51.)

He said that some medication relieves the

pain some but nothing takes it away completely, and cold, damp,
rainy days are the worst.

(R. 51-53.)

He also said he sometimes

has difficulty walking the one hundred yards to the mailbox.

(R.

52-53.)
Plaintiff testified that he sees Dr. Wehman for medication
management for his mental health issues and he also sees a
therapist once a week or every two weeks.

(R. 54.)

The ALJ first asked the VE to consider a hypothetical
individual who had the residual functional capacity to perform a
range of light work subject to the following limitations:
The individual can sit up to four hours a
day, stand up to four hours a day, walk up to
19

four hours a day. The work should be such
that it can be performed either sitting or
standing. There’s a need to only
occasionally climb stairs, kneel, stoop,
balance, or crouch, or crawl. There’s a need
to never climb ladders, ropes, or scaffolds.
The individual should only occasionally reach
overhead. There’s a need to avoid
concentrated exposure to vibration,
temperature extremes, or dampness. There’s a
need to avoid work at unprotected heights or
around dangerous moving machinery. There’s a
need to avoid operating motor vehicle.
There’s a moderate limitation . . . in the
ability to understand, remember, and carry
out detailed instructions; make judgments on
simple work decisions; interact appropriately
with supervisors, public, or co-workers; in
the ability to respond appropriately to
changes in a work setting or work pressures
in a usual work environment.
(R. 80-81.)

The VE opined that a person with such limitations

would be able to perform unskilled jobs in the national or regional
economy.

(R. 81.)

The ALJ then added the restriction that the previously
identified hypothetical individual had a marked limitation in his
ability to interact appropriately with the public or coworkers and
respond appropriately to changes in the ordinary work environment.
(R. 82.)

The VE testifies that the added restriction would

indicate an inability to maintain employment and would exclude all
occupations.

(Id.)

The ALJ also asked if the first hypothetical person were
expected to be off-task in addition to regular breaks for one to
two hours a day on a consistent basis due to pain and the need to

20

lay down during the workday would that person be capable of gainful
employment.

(R. 83.)

The VE answered that such a person would be

excluded from all occupations.

(Id.)

Finally, the ALJ asked if the person in the first hypothetical
were expected to be absent two to three times a month on a
consistent basis would he be capable of gainful employment.
84.)
3.

The VE responded that he would not.

(R.

(Id.)

ALJ Decision
By decision of August 12, 2013, ALJ Cutter determined that

Plaintiff was not disabled as defined in the Social Security Act
from the alleged onset date of January 10, 2009, through the date
of the decision.

(R. 36.)

He 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, 2013.

2.

The claimant has not engaged in
substantial gainful activity since
January 10, 2009, the amended alleged
onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe
impairments: Lumbar Spine Pathology,
Depression, Anxiety, and Pain Disorder
(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).
21

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b)
and 416.967(b). The claimant is able to
sit for four hours, stand for four
hours, and walk for four hours. The
claimant requires the ability to
alternate sitting and standing at will.
The claimant is able to climb stairs,
kneel, stoop, balance, crouch, and crawl
occasionally. The claimant is unable to
climb ladders, ropes, or scaffolds. The
claimant is able to reach overhead
occasionally. The claimant should avoid
concentrated exposure to vibration,
extreme temperatures, and dampness. The
claimant should avoid performing work at
unprotected heights or around dangerous
moving machinery. The claimant is
unable to operate motor vehicles. The
claimant has a moderate limitation
(moderate is defined as more than a
slight limitation, but the function can
still be performed on a consistent
enough basis to be satisfactory to an
employer) in his ability to understand,
remember, and carry out detailed
instructions, make judgments on simple
work-related decisions, interact
appropriately with supervisors, the
public, and co-workers, and respond
appropriately to changes in an ordinary
work setting.

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 15,
1969 and was 39 years old, which is
defined as a younger individual age 1849, on the alleged disability onset date
(20 CR 404.1563 and 416.963).

8.

The claimant has at least a high school
education and is able to communicate in
22

English (20 CFR 404.1564 and 416.964).
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
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

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 January 10, 2009,
through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(R. 24-36.)
The ALJ specifically considered Listings 1.04, 12.04, and
12.06.

(R. 25-26.)

He concluded that Plaintiff did not meet the

necessary criteria under any Listing.

(Id.)

The ALJ discussed his RFC determination at length.
34.)

(R. 27-

He found Plaintiff not to be completely credible regarding

the intensity, persistence and limiting effects of his symptoms for
several reasons including that Plaintiff’s alleged pain and mental
health symptoms are not supported by the objective evidence of
record.

(R. 34.)

ALJ Cutter also reviewed the opinion evidence

and explained the weight attributed to various opinions addressing

23

the effects of Plaintiff’s physical and mental impairments.

(R.

31-34.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

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
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. §§

2

“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).
24

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

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. 36.)
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).
25

Substantial evidence

means “more than a mere scintilla.

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
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

26

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
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
27

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
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
28

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
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 properly apply the treating physician rule
(Doc. 12 at 16); 2) the ALJ erred in giving significant weight to
the limitations set forth by an examining doctor but not including
those limitations in his hypothetical to the vocational expert (id.
at 19); 3) the ALJ erred in putting significant weight on the GAF
scores (id. at 20); and 4) the ALJ erred in failing to find
Plaintiff and his father credible (id. at 21).
29

1.

Treating Physician Opinion
Plaintiff first asserts that the ALJ failed to properly apply

the treating physician rule to Dr. Kauffman’s opinion on
Plaintiff’s limitations. (Doc. 12 at 16.)

I conclude the ALJ did

not err on this basis.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.

See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981)).

The “treating physician rule,” is codified at 20

C.F.R. 404.1527(c)(2), and is widely accepted in the Third Circuit.
Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v.
Brown, 794 F.2d 896 (3d Cir. 1986).

The regulation addresses the

weight to be given a treating source’s opinion: “If we find that a
treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”

3

20 C.F.R. § 404.1527(c)(2).3

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
30

“A

cardinal principle guiding disability eligibility determinations is
that the ALJ accord treating physicians’ reports great weight,
especially when their opinions reflect expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time.”

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

2000) (citations omitted); see also Brownawell v. Commissioner of
Social Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to

reject the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own

picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
31

credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Plaintiff specifically points to Dr. Kauffman’s opinion that
Plaintiff was unable to climb ladders or scaffolds, stoop, kneel,
crouch, crawl, or walk a block at a reasonable pace on rough or
uneven surfaces.

(Doc. 12 at 16.)

Plaintiff avers that the

opinion is consistent with the opinion of Dr. Sumas and certain
findings of Dr. Powers and Dr. Schmidt and is also supported by
diagnostic testing.4

(Id. at 17.)

I conclude the assignment of limited weight to Dr. Kauffman’s
opinion was not error because the ALJ provided valid reasons for
his determination. (R. 32-33.)

In his Decision, the ALJ explained

the weight attributed to Dr. Kaufffman’s opinion:
As Dr. Kauffman is the claimant’s primary
care provider, his care is limited to routine
physical examinations and medication
management, and he is not an orthopedic
specialist. The undersigned finds that Dr.
Kauffman’s opinion regarding the claimant’s
postural limitations and inability to walk a
block at a reasonable pace on a rough or
uneven surface are not supported by the
orthopedic findings of record, including Dr.
Powers’ and Dr. Schmidt’s findings that the
claimant has 5/5 motor strength in his lower

4

In this section of his supporting brief Plaintiff also
questions the ALJ’s RFC findings that Plaintiff was able to stand,
sit and walk for four hours each in an eight-hour day. (Doc. 12 at
18.) The argument is not well-developed and does not undermine the
weight attributed to Dr. Kauffman’s opinion which is the issue
raised with the first objection.
32

extremities and negative straight leg raises
to 90 degrees.
(R. 33 (citing Exhibits 5F and 6F (R. 556-585)).)
The governing regulation provides that more weight will
generally be given “to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion
of a source who is not a specialist.”

20 C.F.R. § 404.1527(c)(5).

Although Dr. Schmidt was an examining specialist, Dr. Powers was a
treating specialist over a period of time.

Therefore, under §

404.1527(c)(2), the ALJ did not err in giving Dr. Powers’ opinion
and findings more weight than Dr. Kauffman’s opinion regarding
Plaintiff’s back issues.5
In his reply brief, Plaintiff urges reliance on Dr. Kauffman’s
opinion because it was rendered later in time than Dr. Powers’
opinion.

(Doc. 14 at 2.)

I do not find such reliance warranted in

that the ALJ reviewed Dr. Powers’ treatment of Plaintiff following
the testing referenced by Plaintiff (October 2011 MRI) (Doc. 13 at
2), and specifically noted that Dr. Powers “found that there was
nothing in his examination of the claimant to suggest a progressive
or acute problem.”

(R. 30.)

5

Plaintiff’s reference to the opinion of Dr. Sumas in
support of Dr. Kauffman’s opinion is misplaced for several reasons,
most importantly that it relates to a time after the ALJ’s decision
and after Plaintiff was in an automobile accident which reportedly
exacerbated his back issues. (R. 88, 91.) As directed by the
Appeals Council, if Plaintiff wants the Agency to continue whether
he was disabled after the date of the ALJ’s decision (August 12,
2013), he needed to apply for benefits again. (R. 2.)
33

Because I conclude that the ALJ did not err in not giving
controlling weigh to Dr. Kauffman’s opinion, Plaintiff’s first
claimed error is not cause for remand.
2.

Examining Physician Opinion
Plaintiff next asserts that the ALJ erred in giving

significant weight to the limitations set forth by Dr. Schmidt, an
examining doctor, but not including those limitations in his
hypothetical to the vocational expert.

(Doc. 12 at 19.)

I

conclude this claimed error is not a basis for remand.
Plaintiff specifically takes issue with the fact that the ALJ
gave Dr. Schmidt’s opinion significant weight but did not
accurately portray the limitations found by Dr. Schmidt in his
hypothetical to the VE.

(Doc. 12 at 19-20.)

Dr. Schmidt opined

that Plaintiff could sit and stand for three to five hours in an
eight-hour day and he could walk between one and three hours in an
eight-hour day.

(R. 561.)

Plaintiff asserts that the hypothetical

to the VE concerning an individual capable of sitting, standing,
and walking for four hours in an eight-hour day (R. 26) was
improper because it did not reflect the minimum amount of time Dr.
Schmidt found Plaintiff able to sit, stand, and walk, i.e., sit and
stand for three hours and walk for one hour.

(Doc. 12 at 19-20.)

Defendant responds that the ALJ did not err on this basis
because his hypothetical did not consider only Dr. Schmidt’s
opinion but also Dr. Powers’ opinions that Plaintiff could return

34

to work with restrictions but did not limit the hours for sitting,
standing or walking.

(Doc. 13 at 19.)

We agree with Defendant that the ALJ was not obligated to
consider Dr. Schmidt’s opinion in a vacuum when drafting his
hypothetical to the VE.

(See id.)

ALJ Cutter afforded significant

weight to the opinions of Doctors Schmidt, Powers, and Park.
31-32.)

(R.

He was not required to repeat each physician’s

restrictions verbatim nor was he precluded from combining these
opinions to form his hypothetical.

While in some instances the ALJ

did not include the precise durational limitations indicated by Dr.
Schmidt, in other instances his limitations went further.

For

example, Dr. Schmidt did not opine that Plaintiff required a
sit/stand option, but the ALJ’s hypothetical limited the individual
to work that could be performed sitting or standing and his RFC
stated that “[t]he claimant requires the ability to alternate
between sitting and standing.”6

(R. 26, 80, 561.)

Furthermore,

Dr. Kauffman opined that Plaintiff could sit, walk, and stand for
four hours each in an eight-hour day.

(R. 648.)

Though overall

ALJ Cutter gave limited weight to Dr. Kauffman’s opinion, he did
not discount it completely.

(R. 53.)

Because the ALJ’s hypothetical adequately portrayed

6

Dr. Powers opined that needed “to find some type of
employment that allows him to go from sitting to standing
frequently.” (R. 420.) Dr. Park opined that Plaintiff “[m]ust
periodically alternate between sitting and standing to relieve pain
and discomfort.” (R. 138.)
35

Plaintiff’s impairments that were supported by the record, remand
is not warranted on the basis claimed.
3.

GAF Scores
Plaintiff asserts that the ALJ erred in putting significant

weight on the GAF scores.

(Doc. 12 at 20.)

I conclude this

claimed error is without merit.
While Plaintiff is correct that “a GAF score does not itself
necessarily reveal a particular type of limitation and is not an
assessment of a claimant’s ability to work,” (Doc. 12 at 21 (citing
Wallace v. Astrue, Civ. A. No. 2:07cv850, 2008 WL 2428926 (M.D.
Ala. June 12, 2008))), ALJ Cutter did not rely only on GAF scores.
Rather, he noted various GAF scores in conjunction with other
evidence and his findings were based on a broad view of the
evidence.
4.

(R. 30-31, 33, 34.)

Credibility
Plaintiff’s final claimed error is that the ALJ erred in

failing to find Plaintiff and his father credible.
21.)

(Doc. 12 at

I conclude the ALJ did not err on either basis.
Contrary to Plaintiff’s assertion that the ALJ did not explain

the standard he used for discounting his father’s testimony (R.
22), the ALJ properly treated the third party function report
completed by Plaintiff’s father as opinion evidence and explained
the weight he attributed to it (R. 33-34).

This consideration is

consistent with Social Security Ruling 06-03p which addresses

36

consideration of opinions and evidence from sources who are not
“acceptable medical sources.”

SSR 06-03p, 2006 WL 2329939, at *6

(2006).
Plaintiff’s assertion that the ALJ did not explain the
standard used in assessing his credibility (Doc. 12 at 22) is also
without merit.

Our review of the Decision reveals no error on this

issue.
The Third Circuit Court of Appeals has stated that “[w]e
‘ordinarily defer to an ALJ’s credibility determination because he
or she has the opportunity at a hearing to assess a witness’s
demeanor.’”

Coleman v. Commissioner of Social Security, 440 F.

App’x 252, 253 (3d Cir. 2012) (not precedential) (quoting Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)).

“Credibility

determinations are the province of the ALJ and should only be
disturbed on review if not supported by substantial evidence.”
Pysher v. Apfel, Civ. A. No. 00-1309, 2001 WL 793305, at *3 (E.D.
Pa. July 11, 2001) (citing Van Horn v. Schwieker, 717 F.2d 871, 873
(3d Cir. 1983)).
Social Security Ruling 96-7p provides the following guidance
regarding the evaluation of a claimant’s statements about his or
her symptoms:
In general, the extent to which an
individual's statements about symptoms can be
relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
37

of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p.

An ALJ is not required to specifically mention relevant

Social Security Rulings.
482 (3d Cir. 2003).

See Holiday v. Barnhart, 76 F. App’x 479,

It is enough that his analysis by and large

comports with relevant provisions.

Id.

Here the ALJ explained the relevant two-step process (R. 27)
and set out the reasons why he did not find that Plaintiff’s
conditions were as limiting as alleged (R. 34).

ALJ Cutter

supports his findings with citations to the record sufficient to
provide substantial evidence for this conclusions.

(R. 34.)

Therefore, we cannot say the ALJ erred on the basis alleged.
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: October 13, 2015

38