Hege v. Colvin

Filing 13

MEMORANDUM (Order to follow as separate docket entry)For the reasons stated above, the Court finds that the Commissionerss decision was supported by the requisite substantial evidence and the Commissioners decision to deny benefits in this case will be affirmed. An Order to that effect will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 10/15/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Chastity Leann (Hoke) Hege

:

Plaintiff

: (Case No. 3:15-CV-639)

V.

:

Carolyn W. Colvin,
Acting Commissioner of
Social Security

: (Judge Richard P. Conaboy)
:

Defendant

:

___________________________________________________________________
Memorandum
We consider here the appeal of Plaintiff Chastity Hoke Hege
from a decision of the Social Security Administration (“SSA”) that
denied her applications for disability insurance benefits (“DIB”)
and Supplemental Security Income Benefits (“SSI”).

The issues have

been fully briefed by the parties and this matter is ripe for
disposition.
I.

Procedural Background.
On July 11, 2012, Plaintiff filed applications for DIB and SSI

benefits with the SSA.

Plaintiff alleged an onset date of June 1,

2011 in each instance.

Plaintiff’s claims were denied initially on

October 26, 2012.

On December 19, 2013 an evidentiary hearing was

conducted before Administrative Law Judge Randy Riley the (“ALJ”).
The ALJ issued an unfavorable decision (Doc. 9-2 at 18-38) on
January 9, 2014, whereupon Plaintiff appealed.

1

The Appeals Council

affirmed the ALJ’s decision on February 9, 2015.
4).

(Doc. 9-2 at 2-

The Appeal’s Council’s decision thus became the final decision

of the Commissioner of the SSA (“Commissioner”).

Plaintiff then

filed a Complaint (Doc. 1) in this Court challenging the
Commissioner’s decision in timely fashion on April 1, 2015.

The

Plaintiff and the Commission have briefed their respective
positions and this case is ripe for disposition.
II.

Testimony Before the ALJ.
Plaintiff (Hoke) Hege testified as follows: she lives in

subsidized housing with her son who is seven years of age.
9-2 at 42).

She was homeless for almost two years between the time

she filed her claims and the date of her hearing.
49).

(Doc.

She has received her GED diploma.

(Id.).

(Doc. 9-2 at
She receives

temporary cash assistance along with food stamps and medical care.
(Doc. 9-2 at 43).

Plaintiff has never held a driver’s license and,

at the time of the hearing, she was precluded from applying for one
because she had not been seizure-free for a period of six months.
(Doc. 9-2 at 43-44).
With regard to her physical capacities, Plaintiff acknowledged
that she can dress herself, attend to her own bathing and hygiene
needs, cook, shop, do her own dishes and laundry, vacuum and sweep,
and take out the trash.

(Doc. 9-2 at 43).

She participates in

social activities such as bowling and being involved in various
church groups.

(Doc. 9-2 at 44).

She acknowledged that she can

2

bend over and touch her toes, and that she can squat down to
retrieve an object from the floor and come back to a standing
position.

(Id.).

She stated that she can climb stairs but prefers

not to climb ladders. (Id).
Plaintiff testified further that she neither smokes nor drinks
and that she has not taken any illegal drugs for three to four
years prior to the hearing.

(Doc. 9-2 at 45).

She stated that she

was taking medications to alleviate her seizure disorder and that
these medications are sometimes helpful.

(Doc. 9-2 at 45-46).

Her

seizures consist of “staring spells” when she is awake but the
seizures more frequently occur while she is sleeping.
46).

(Doc. 9-2 at

She indicates that she keeps a “seizure log” that indicates

that she has been having one to three seizures per month in the
year preceding her hearing before the ALJ. (Id.).

Plaintiff

testified further that she knows when she has had a seizure during
sleep because she feels drained and fatigued the next day.
9-2 at 46-47).

She stated that she would be unable to work a full

day on a day following one of her nocturnal seizures.
44).

(Doc.

(Doc. 9-2 at

She states that she had a waking seizure in March of 2012

that caused her to fall face first into a table and lose her front
teeth.

(Doc. 9-2 at 48).

Plaintiff also noted that when she has

one of her “staring spells” she is oblivious to what is happening
around her and that these spells seem to occur more frequently when
she feels stressed.

(Doc. 9-2 at 48-49).

3

With respect to her emotional state, Plaintiff stated that her
moods change frequently and that she has “up” and “down” days.
(Id).

She has trouble motivating herself to do things and has

trouble completing tasks that she starts.

(Id).

She attributes

these difficulties to her medications and states that her mind is
always racing and that she has trouble keeping herself organized.
(Doc. 9-2 at 49-50).
Plaintiff does not believe that she would be able to maintain
attention to do a full-time job and stated that she has “a hard
enough time” sitting through a movie (Doc. 9-2 at 50).

She also

states that she finds it stressful being in a busy place around a
lot of people.

(Id).

She stated that at times being around other

people makes her so agitated that she begins to curse out loud and
that a short time before the hearing she had such an episode while
standing in the check-out line at a Walmart store.

(Doc. 9-2 at

51).
Finally, Plaintiff stated that being around strong odors, like
that of bleach, can give her a headache and that headaches often
precede her seizures.

(Doc. 9-2 at 52).

When she gets a headache,

Plaintiff tries to remain in an area with padded surfaces in case
she would suffer a seizure and fall.

(Id).

Also testifying before the ALJ was Paul Anderson, a vocational
expert.

Mr. Anderson testified that he was familiar with the SSA

definitions of unskilled, skilled, sedentary, light, medium, and

4

heavy work and that he was familiar with the Dictionary of
Occupational Titles.

(Doc. 9-2 at 53).

Mr. Anderson also stated

that he had reviewed Plaintiff’s file and that he was familiar with
her work history.

(Id).

The ALJ posed a hypothetical question to Mr. Anderson that
asked him to assume a person of Plaintiff’s age, education, and
work experience who could perform medium work as long as the
workplace did not include fast-paced production quotas and involved
only simple decisions with few, if any, workplace changes.

The

vocational expert was also asked to assume that the work
environment would not include “concentrated exposure to hazards”
and that no interaction with the public and only occasional
interaction with co-workers or supervisors” would be involved.
(Doc. 9-2 at 53-54).

Given these assumptions, the vocational

expert concluded that Plaintiff would be unable to perform any of
her past jobs, but that work existed in the national economy in
significant numbers that she was capable of performing.
at 54).

(Doc. 9-2

These jobs included housekeeper, janitor, and semi-

conductor bonder.

(Id).

When asked whether a need to avoid fumes and chemicals due to
a risk of causing seizures would affect the jobs the vocational
expert identified as being within Plaintiff’s capacities, the
vocational expert responded that the exposure to chemicals in the
janitor and housekeeper positions would not be “enough to be

5

noticed by the Department of Labor data”.

(Id).

When asked what

would be the effect on Plaintiff’s employability if one assumed she
would miss two workdays each month due to seizures or post-seizure
symptoms, the VE responded that she would be incapable of
competitive employment.

(Doc. 9-2 at 55).

The VE also testified

that, if Plaintiff were unable to maintain socially appropriate
behavior for two-thirds of a work day, she would be unemployable.
III. Medical Evidence.
a.

Dr. Gliebus

After experiencing seizures on July 4, 2011 while living in a
detox center as a result of using various controlled substances,
Plaintiff was seen in the emergency room of Chambersburg Hospital
and started on Dilantin, and anti-seizure medication.

Plaintiff

also underwent an EEG study at Chambersburg Hospital which
indicated that she was neurologically normal.

Upon being released

from the detox center, she saw her family physician on July 21,
2011 with complaints of unrelenting headaches.

Dr. Heckler, the

family physician, referred Plaintiff to Dr. Gediminas Gliebus, a
neurologist, who first saw Plaintiff on August 11, 2011.
Dr. Gliebus initially diagnosed Plaintiff with seizures and
migraine headaches.

Dr. Gliebus noted Plaintiff’s past history of

migraine headaches and her nine years of opiate addiction.

He

noted that Plaintiff’s seizures were likely secondary to drug
withdrawal and that he expected they would last “up to one year”.

6

However, notwithstanding his expectations, Dr. Gliebus’ office
notes of his session with Plaintiff on August 10, 2012 indicated
that “she is being followed for complex partial seizures” and that
he increased her dosage of Trileptal, an anti-seizure medication,
to 600 milligrams twice daily.1

On May 15, 2013, Dr. Gliebus again

saw Plaintiff and noted at that time that she was still under
treatment for “complex partial seizures” and that her dosage of
Trileptal had been increased to 900 milligrams twice daily.

Thus,

Dr. Gliebus’ treatment notes confirm that Plaintiff was
experiencing seizures for at least 21 months - - from August 2011
through May, 2013.

See transcript 281-83, 365-69, 529-35, 568-72.

Significantly, Dr. Gliebus’ notes never address the impact of
Plaintiff’s seizure disorder on her ability to maintain employment.
On November 6, 2013, Plaintiff was seen by Dr. Gliebus’ associate,
Dr. Stanton Sollenberger, whose notes indicate that Plaintiff
continue to have two to three seizures monthly with associated
urinary incontinence.
b.

(See Transcript at 685-87).

Dr. Lee.

On November 23, 2011, Dr. Leslie Lee of the Pennsylvania
Counseling Services provided a psychiatric evaluation of the
Plaintiff.

The evaluation was based upon a one hour session with

the Plaintiff.

Dr. Lee took Plaintiff’s medical and psycho-social

1

Dr. Gliebus’ initial diagnosis had been “seizures”, but that diagnosis changed to “complex
partial seizures” after Plaintiff underwent a 72 hour EEG on July 18, 2011. See transcript at 404.
7

history and noted that she had a long history of substance abuse
dating back to the age of twelve.

Plaintiff related that she had

used many drugs over the years and that her “drug of choice” was
oxycodone.

Dr. Lee indicated that Plaintiff’s principal complaints

were difficulty sleeping and an inability to focus and maintain
concentration.

Dr. Lee stated that Plaintiff claimed to be drug

free for about six or seven months before the date of their
session.

Plaintiff told Dr. Lee about her history of seizures and

of her belief that the seizures were stress related.

Dr. Lee’s

report indicates, however, that she believed, like Plaintiff’s
neurologist (Dr. Gliebus), that Plaintiff’s seizures were secondary
to drug withdrawal.

(Doc. 9-7 at 75-76).

Dr. Lee found Plaintiff to be alert, oriented, and articulate.
Plaintiff is described as being without hallucinations, delusions,
or tangentiality and without any sign of psychosis or mania.

Dr.

Lee described Plaintiff, however, as having very limited insight
and judgment.

She diagnosed Plaintiff with mental disorders due to

previous polysubstance abuse, seizure disorder secondary to drug
use, moderate to severe psycho-social distress, and assessed
Plaintiff at a global assessment of function (GAF) score of 50.

2

2

While the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders
no longer assesses symptom severity, diagnostic severity, and disability in terms of global
assessment of function scores (GAF’s), at the time of Plaintiff’s assessments, the GAF scale was
used to report a clinicians judgment of the patient’s overall level of functioning on a scale of 1 to
100. All of Plaintiff’s recorded GAF’s that are documented in the record were between 30 and 65.
A GAF score of 21-30 indicates that behavior is considerably influenced by delusions or
8

When Plaintiff was advised that Dr. Lee would not be prescribing
any mediation to address her complaints of sleeplessness and
inability to concentrate she abruptly left Dr. Lee’s office.

(Doc.

9-7 at 76-77).
c.

Drs. Chakrabarti and Mushtaq.

Plaintiff was under the care of Dr. Indranil Chakrabarti at
Chambersburg Hospital from June 22, 2012 through June 27, 2012.
Plaintiff had been admitted after presenting at the Chambersburg
Hospital emergency room complaining of depression, suicidal
thoughts, and an inability to stop using opiates.

She was

initially seen in the ER by Dr. Jameel Mushtaq, who diagnosed bipolar disorder, anxiety disorder, and opioid dependence in full
sustained remission. At admission on June 22, 2012, Dr. Mushtaq
assessed a GAF score of 30.

However, by the time patient was

discharged on June 27, 2012, Dr. Chakrabarti noted that she “had
significant resolution of her mood symptoms” and “was motivated to

hallucinations or serious impairment in communication or judgment. A GAF score of 31-40
indicates some impairment in reality testing or communication and that speech is at times illogical,
obscure or irrelevant and may indicate major impairment in several areas such as work or school,
family relations, judgment, thinking, or mood. A GAF score of 41-50 indicates serious symptoms
such as suicidal ideation, severe obsessional rituals, frequent shoplifting or any impairment in social
occupation or school functioning. A GAF score of 51-60 indicates “moderate symptoms such as flat
affect, occasional panic attacks, or moderate difficulty of social, occupational, or school functioning.
A GAF score of 61-70 indicates mild symptoms such as depressed mood and mild insomnia or some
difficulty in social occupation or school functioning but that the patient is generally functioning
pretty well. See Diagnostic and Statistical Manual of Mental Disorders 34(4th ed., text Rev., 2000).
Because the record in this case is generally lacking in any clinician’s notes that comment on the
Plaintiff’s ability to work, the GAF scores, while now not in general use, constitute the best evidence
of Plaintiff’s level of mental and emotional functioning at various points in time.
9

be treated as an outpatient.”

Dr. Chakrabarti noted also that he

observed no evidence of bi-polarity and his discharge diagnosis
indicated depressive disorder, polysubstance dependence, and
borderline personality disorder.

Dr. Chakrabarti assigned

Plaintiff a GAF score of 60, indicating only moderate impairment,
at the time of her discharge.

(Doc. 9-8 at 56-78).

Plaintiff did follow through with out-patient treatment after
her discharge from Chambersburg Hospital on June 27, 2012.

During

four subsequent out-patient sessions at the Chambersburg Hospital
Behavioral Health Services Clinic that occurred on July 2, July 12,
July 24, and August 17, 2012, Plaintiff’s GAF scores were assessed,
respectively, at 65, 60, 60, and 60.
d.

Dr. Moskel.

On October 10, 2012, P. Moskel, M.D., performed a
psychological consultation examination of the Plaintiff.

As Dr.

Lee had done 11 months earlier, Dr. Moskel took a family history
and a social history by questioning the Plaintiff.

Dr. Moskel’s

notes demonstrate consistency with the family and social histories
Plaintiff had provided to Dr. Lee.
Dr. Moskel described Plaintiff as “a well-developed somewhat
overweight female...in no acute distress at the time of
examination...”.

He found that Plaintiff had poor eye contact and

that she “appears to be somewhat anxious as well as looking
discouraged and depressed.”

Her thought-processes were seen as

10

logical and rational with no loosening of associations or flight of
ideas.”

Her thought content was described as “within normal limits

with nothing to suggest any psychotic or delusional material.”

She

displayed “no obvious obsessive-compulsive features, phobias, or
unusual somatic preoccupations.”
ideation.
poor”.

She denied current suicidal

Her attention and concentration were seen as “quite

Her immediate memory was somewhat limited and her remote

memory was seen as “even more sketchy”.

Plaintiff’s abstract

reasoning was described as “grossly intact”.

Dr. Moskel stated:

“Impulse controls are present and she is cooperative throughout the
examination.”

Dr. Moskel estimated Plaintiff’s intelligence “as

probably somewhere within normal limits.”
On the basis of his one session with Plaintiff, Dr. Moskel
diagnosed post-traumatic stress disorder, depressed and anxious
features and seizure disorder. He assigned Plaintiff a GAF score of
45 on the basis of his one session with her.

He found Plaintiff to

be significantly impaired in memory and understanding in following
even simple instructions.

Dr. Moskel also found that Plaintiff’s

ability to interact with the public and supervisors in a workplace
was at least moderately impaired.

Dr. Moskel closed by noting that

Plaintiff was markedly impaired in her ability to adjust to
pressures that could be expected in the workplace due to her
problems with concentration and memory.

11

(Doc. 9-8 a 124-130).

e.

Rebecca Newcomer, CRNP

Between January 9, 2013 and November 6, 2013, Plaintiff saw
Rebecca Newcomer, a certified registered nurse practitioner, who
was “collaborating” with Satyagit Mukherjee, M.D., on at least 11
occasions.3

On each of these occasions, Ms. Newcomer’s notes

indicated that Plaintiff: “Denies agitation, confusion, delusions,
hallucinations, homicidal thoughts, loss of interest, obsessive
thoughts, compulsive behaviors, racing thoughts, sleep pattern
disturbance, and suicidal thoughts.

Denies impulsivity or panic.”

The assessments of Plaintiff’s conditions in Ms. Newcomer’s notes
indicated “bi-polar disorder, sleep disorder, and anxiety disorder
generalized.”

On eight occasions between January 23, 2013 and

September 12, 2013, Ms. Newcomer assigned Plaintiff GAF scores of
60-65.

On each occasion that Ms. Newcomer saw Plaintiff over the

aforementioned ten month period from January to November of 2013,
she was described as alert and oriented with clear speech and
organized thoughts.
visit to visit.

Her anxiety level varied to some extent from

Judgment, attention, concentration, and memory

were variously seen as “good”, “fair”, “intact”, or (on March 14,
2013) “mildly impaired”.

(Doc. 9-9, 2-19; Doc. 9-10, 50-58).

Ms. Newcomer’s notes also indicate on several dates that
Plaintiff was stressed and struggling to cope with anxiety related

3

Because the Court cannot gauge the extent of Ms. Newcomer’s “collaboration” with Dr.
Mukheterjee, Ms. Newcomer’s medical opinion will not be treated as that of a medical doctor.
12

to her son’s disabilities.

On December 18, 2013, Ms. Newcomer

completed a “Mental Impairment Questionnaire” that was designed to
assess the subject’s ability to perform various workplace
activities.

(Doc. 9-10; 75-79).

Ms. Newcomer indicated that

Plaintiff had mild to moderate limitations in most areas related to
her ability to function in the workplace.

Plaintiff was seen to

have marked limitations only with respect with her ability to: (1)
understand and remember detailed instructions; (2) carry out
detailed instructions; (3) set realistic goals or make plans
independent of others; (4) deal with the stress of semi-skilled and
skilled work; (5) interact appropriately with the general public;
and (6) maintain socially appropriate behavior.”
IV.

4

ALJ Decision.
The ALJ’s decision (Doc. 9-2 at 18-38) was unfavorable to the

Plaintiff.

It includes 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,
2015.

2.

The claimant has not engaged in substantial gainful

4

In the context of the Mental Impairment Questionnaire, “mild limitation” indicates that the
subject “can generally function well”, “moderate limitation” indicates that the subject is still able to
function satisfactorily; and “marked limitation” indicates that the subject “is severely limited but not
precluded from doing work-related activities on a day-to-day basis in a regular work setting”. (Doc.
9-10 at 75).
13

activity since June 1,2011, her alleged onset date
(20 CFR 404.1571 et seq and 461.971 et seq).
3.

The claimant has the following severe impairments:
Obesity, bipolar disorder, and post-traumatic stress
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(b), 416.925
and 416.926).

5.

After careful consideration of the entire record,
the undesigned finds that the claimant has the
residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c).
The claimant in unable to climb ladders.

The

claimant should avoid concentrated exposure to
hazards.

The claimant is limited to performing work

involving only simple, routine, repetitive tasks in
a work environment free from fast-paced production
and involving only simple work-related decisions
with few if any workplace changes, no interaction
with the public, occasional interaction with coworkers, but no tandem tasks and occasional

14

supervision.
6.

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

7.

The claimant was born on December 21, 1983 and was
27 years old, which is defined as a younger
individual age 18-49, on the alleged disability
onset date.

8.

(20 CFR 404.1563 and 416.963).

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 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).

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 June 1,
2011, through the date of this decision (20 CFR

15

404.1520(g) and 416.920(g)).
V.

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

determine whether a claimant is disabled.5

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 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

5

“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

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.19).
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.

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
17

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

18

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
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
19

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
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,
20

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
strictly construed.”

Id.

B.

Plaintiff’s Allegations of Error.

1.

Whether the ALJ’s Determination that Plaintiff’s Seizure
Disorder did not Constitute a “Severe Impairment” at Step
2 of the Sequential Evaluation Process was Error?

Plaintiff argues that the ALJ’s conclusion that her seizure
disorder was non-severe at Step 2 of the evaluative process was
error.

(Doc. 10 at 20).

This argument would be persuasive if the
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ALJ had ended his evaluation at Step 2.
case.

However, that was not the

The ALJ found at Step 2 that Plaintiff had multiple severe

impairments including obesity, bi-polar disorder, and posttraumatic stress disorder as well as a non-severe seizure disorder.
Step 2 of the Commissioner’s five step sequential evaluation
process “is a threshold analysis that requires (the claimant) to
show that he has one severe impairment.”

Bradley v. Barnhart, 178

F.App’x 87, 90 (7th Cir. 2006); See also DeSando v. Astrue, 2009 WL
890940 (M.D. Pa. March 31, 2009).

Because the ALJ found that

Plaintiff had multiple severe impairments, his determination that
Plaintiff’s seizure disorder was “not severe” is no more than
harmless error at Step 2 and irrelevant.

See Salles v.

Commissioner of Social Security, 229 F.App’x 140, 145n2 (3d. Cir.
2007).

So long as a claim is not denied at Step 2 and the ALJ

accounts for all impairments, severe and non-severe, in assessing
Plaintiff’s residual functional capacity, it is insignificant if
the ALJ does not find any particular impairment to be severe.
Bliss v. Astrue, 2009 WL 413757 at 1n.1 (W.D.Pa. February 18,
2009).
In characterizing Plaintiff’s seizure disorder as “nonsevere”, the ALJ noted that various EEG’s, including one lasting 72
hours, did not confirm a diagnosis of seizure disorder and that Dr.
Gliebus, her treating neurologist, repeatedly found that Plaintiff
was “neurologically stable”.

(Doc. 9-2 at 31). Nevertheless, in

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his hypothetical question to the vocational expert, the ALJ made
reasonable accommodations for the symptoms Plaintiff alleges she
experiences as a result of her seizures.

The ALJ allowed for

Plaintiff’s seizure disorder by limiting her work to jobs in which
she would have no concentrated exposure to hazards and would
perform only simple, routine, and repetitive tasks in a work
environment free from fast-paced production pressures.
Accordingly, this Court finds that the ALJ’s assessment of
Plaintiff’s residual functional capacity reflected all Plaintiff’s
impairments, severe and non-severe.
required.

More than that is not

See Richards v. Astrue, 2010 WL2606523 at 5 (W.D. June

28, 2010)(citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007);
Maziarz v. Secretary of Health and Human Services, 837 F.2d 240,
244 (6th Cir. 1987)).

Accordingly, the ALJ’s conclusion that

Plaintiff’s seizure disorder was “non-severe” at Step 2 of the
evaluative process cannot constitute error because this case was
ultimately evaluated appropriately through Step 5 of the process
the Commissioner must observe.
2.

Whether the ALJ Erred by Failing to Award a Closed Period
of Disability from June 1, 2011 through June 27, 2012?

Plaintiff argues that the record conclusively supports that
she suffered such severe impairment of her mental health in the
period from June 1, 2011 through June 27, 2012 that the ALJ erred
by failing to award a closed period of disability for that time

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period.

(Doc. 10 at 21-22).

As Plaintiff points out, the period

from June 1, 2011 through June 27, 2012 constitutes more than the
twelve-month period required for a disability claim to be
established.

Plaintiff fails to note, however, that the twelve-

month period prescribed by 42 U.S.C. § 432(d)(1)(A) must be
characterized by continuous disability.

In this case, the record

Plaintiff has created establishes, at most, that she was
sporadically disabled in that time period.

While there is

documentation that she was functioning, as measured by several GAF
scores, at a seriously impaired level in terms of her social and
occupational abilities during the relevant time period, there is no
cogent medical opinion establishing a continuous severe impairment
for at least twelve months as required under the Social Security
regulations.

Also, Plaintiff’s GAF scores as measured on other

occasions (GAF of 55 on August 22, 2011 and GAF of 60 on June 27,
2012) in the relevant time period indicate only moderate, nondisabling mental impairment.

Thus, based upon the record before

this Court, the ALJ’s decision to reject Plaintiff’s claim for a
closed period of disability may not be faulted.
3.

Whether the ALJ Erred in Subordinating the Opinions of
Drs. Moskel and Lee to that of Rebecca Newcomer, CRNP?

Plaintiff asserts that the ALJ impermissibly elevated the
medical opinion of Rebecca Newcomer, a certified registered nurse
practitioner, over those of two consulting physicians, Dr. P.

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Moskel, and Dr. Leslie Lee.

(Doc. 10 at 22-25).

Plaintiff

correctly states that, as a registered nurse practitioner, Ms.
Newcomer is not considered an “acceptable medical source”.
Nevertheless, Ms. Newcomer’s evaluations of Plaintiff’s mental
condition were derived from eleven different sessions with
Plaintiff over a ten month period.

During that time, in

collaboration with Dr. Mukherjee, Ms. Newcomer repeatedly found
that, while Plaintiff was undeniably suffering from stress-related
difficulties, her judgment, concentration, attention and memory
were generally “fair” to “good” and, on one occasion, “mildly
impaired”.

See Page 12 ante.

Ms. Newcomber was also the only

health care professional to complete a “Mental Impairment
Questionnaire” and this record is devoid of any employability
assessment form or medical source statement from any physician.
Ms. Newcomer’s impression of Plaintiff as expressed on the “Mental
Impairment Questionnaire” indicated only moderate, non-disabling
impairments in any of the abilities and aptitudes needed to perform
unskilled work.

See Document 9-10 at 76.

While Drs. Moskel and Lee may have more impressive credentials
than Ms. Newcomer, they each saw Plaintiff on only one occasion and
evaluated her situation based solely upon the oral history
Plaintiff provided.

They did not have the benefit of repeated

encounters with Plaintiff over a protracted period of time as did
Ms. Newcomer.

And, while Ms. Newcomer is not an “accepted medical

25

source”, she is still a “medical source” who, by definition, may be
given more weight than an “acceptable medical source” if she, as is
the case here, has seen the Plaintiff more often and provided a
clear explanation of her thought process in reaching her
conclusions.

See SSR 06-03p.

As Defendant correctly points out in

its brief (Doc. 11 at 21), according more weight to a medical
source who is not “an acceptable medical source” over that of an
“acceptable medical source” may be appropriate even where the
“acceptable medical source” is a treating physician, and neither
Dr. Moskel nor Dr. Lee may be appropriately classified as treating
physicians in this case.

Their consultative reports, both of which

resulted from one session with the Plaintiff, are at best only
snapshots of Plaintiff’s mental condition at specific moments and
do not provide substantial evidence that she was disabled for a
continuous period of 12 months or more as required by the Social
Security Act.

In light of Ms. Newcomer’s much more extensive

relationship with Plaintiff, the Court cannot conclude that the ALJ
erred in basing his decision upon Ms. Newcomer’s numerous
evaluations of the Plaintiff over a protracted period of time.

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VIII.

Conclusion.

For the reasons stated above, the Court finds that the
Commissioners’s decision was supported by the requisite substantial
evidence and the Commissioner’s decision to deny benefits in this
case will be affirmed.

An Order to that effect will be filed

contemporaneously.

BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court

Dated: October 15, 2015

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