Williams v. Colvin

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal of the Acting Commissioners decision is properly denied. An appropriate Order is filed simultaneously with this action.Signed by Honorable Richard P. Conaboy on 11/9/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NORMAN WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

:
:CIVIL ACTION NO. 3:15-CV-848
:
:(JUDGE CONABOY)
:
:
:
:
:
:
:

___________________________________________________________________
MEMORANDUM
Here the Court considers Plaintiff’s appeal from the
Commissioner’s denial of Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act.

(Doc. 1.)

Plaintiff filed

for benefits in June 2012 alleging disability beginning on April 4,
2008.

(R. 15.)

28, 2012.

(Id.)

He later amended his alleged onset date to June
A July 2, 2012, Disability Report indicates that

Plaintiff claimed his ability to work was limited by arthritis,
high blood pressure, IBS, depression, and hernia.

(R. 198.)

The Administrative Law Judge (“ALJ”) who evaluated the claim,
Peter V. Train, concluded Plaintiff had the severe impairments of
degenerative joint disease of the right foot and depression.
17.)

(R.

He noted that Plaintiff also had hypertension, diabetes,

hyperlipidemia, and abdominal pain but the record did not support
that these impairments were severe.

(Id.)

He found that the

record did not support that the claimed impairments of PTSD and
borderline intellectual were severe.

(Id.)

ALJ Train determined

that Plaintiff’s severe impairments did not alone or in combination
with other impairments meet or equal the listings.

(R. 17-18.)

The ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work with certain nonexertional
limitations and that he was capable of performing jobs that existed
in significant numbers in the national economy.

(R. 18-23.)

The

ALJ therefore found Plaintiff was not disabled under the Act.

(R.

23.)
With this action, Plaintiff argues that the decision of the
Social Security Administration is error for the following reasons:
1) the ALJ erred by finding Plaintiff’s multiple impairments to be
“non-severe”; 2) the acting commissioner failed to sustain her
burden of establishing that there is other work in the national
economy that Plaintiff could perform; 3) substantial evidence does
not support the ALJ’s step three findings; and 4) the ALJ erred in
assessing Plaintiff’s credibility.

(Doc. 12 at 1-2.)

After

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

Procedural Background
Plaintiff filed this action on May 1, 2015.

(Doc. 1.)

He

appeals the denial of benefits made final by the March 2, 2015,
Appeals Council denial of his request for review of the ALJ’s
decision.

(R. 1.)

2

Defendant filed her answer and the Social Security
Administration transcript on June 30, 2015.

(Docs. 9-10.)

Plaintiff filed his supporting brief on August 14, 2015. (Doc. 12.)
Defendant filed her opposition brief on September 17, 2015. (Doc.
14.)

Plaintiff filed his reply brief on September 25, 2015.

15.)

(Doc.

Therefore, this matter is fully briefed and ripe for

disposition.
B.

Factual Background
Plaintiff was born on January 23, 1965.

least a high school education.

(Id.)

(R. 22.)

He has past relevant work as

a production worker and industrial truck operator.
1.

(Doc. 12 at 3.)

Impairment Evidence

a.

He has at

Right Lower Extremity
On October 26, 2011, Plaintiff presented at Hamilton Health

Center complaining of right foot pain.

(R. 283.)

A motor exam

demonstrated no dysfunction and the reflexes were normal.

(Id.)

The Assessment was limb pain and pathologic fracture of the right
foot.

(Id.)

specialist.

The plan included consultation with an orthopedic
(Id.)

Plaintiff was prescribed Vicodin and Tramadol.

(Id.)
On November 2, 2011, Plaintiff reported that the Tramadol did
not work and the Vicodin helped a little.

(R. 282.)

He also

stated that he had broken his right heel in 2008 and had arthritis.
(Id.)
3

On November 8, 2011, Plaintiff was seen by Michael R. Werner,
M.D., of the Orthopedic Institute of Pennsylvania.

(R. 251.)

chief complaint was “[r]ight hindfoot pain, 2008.”

(Id.)

His

Dr.

Werner recorded the history of this complaint as follows: “This is
a gentleman, 46 years old in prison, fell, fractured, shattered his
calcaneus, offered surgery, held off, treated in a cast
appropriately and healed with posttraumatic subtalar
osteoarthritis, pain around the subtalar joint, uses a cane, calf
atrophy, pain, not working . . . 8/10 pain.”

(Id.)

Physical

examination showed that Plaintiff had tenderness “to the point
where he jumps into subtalar joint with essentially no subtalar
motion, but tenderness at the joint.

Midtarsal joints not as

tender, 5/5 strength in available range of motion, but calf
atrophy, ligaments stable, stiff if anything and has a plantigrade
foot.”

(Id.)

Three views of the right foot showed “bone-on-bone

osteoarthritis to the subtalar joint with calcaneal malunion” and
the diagnosis was “calcaneal malunion with subtalar joint
posttraumatic DJD.”

(Id.)

Dr. Werner wanted to proceed with a

subtalar fusion if Plaintiff stopped smoking.

(Id.)

Dr. Werner saw Plaintiff again on November 22, 2011.
253.)

(R.

Dr. Werner offered surgery but Plaintiff wanted to start

with a brace, a decision with which Dr. Werner agreed.

(Id.)

He

noted he would proceed with a Randy Stevens Arizona ankle arthritis
brace.

(Id.)

4

On January 19, 2012, Plaintiff’s ankle gait was antalgic, with
palpitation and limitations in range of motion in his right lower
extremity.

(R. 279.)

the ankle/foot.

Dr. Barbara Black diagnosed arthropathy of

(Id.)

Medical records from the Dauphin County Prison show that on
June 17, 2013, Plaintiff had no edema and minimal right ankle
tenderness on range of motion.
23, 2013, indicate the same.
b.

(R. 426, 440.)

Records from July

(R. 250.)

Other Physical Impairments
Physical impairments which ALJ Train found to be non-severe

are hypertension, diabetes, hyperlipidemia, and abdominal pain.1
Because Plaintiff’s objections do not specifically identify any
error related to the ALJ’s findings regarding these non-severe
physical impairments, we need not review the evidence of record
related to them.
c.

Mental Impairments
On February 15, 2012, Yury Yaraslavsky, M.D., of T.W. Ponessa

& Associates Counseling Services, Inc., saw Plaintiff upon referral
of Plaintiff’s counselor at Sienna House, a halfway house.
266.)

(R.

Plaintiff reported that he felt depressed and probably

needed some kind of medication.

(Id.)

1

Dr. Yaraslavsky reported

The term hyperlipidemia means high lipid levels. It
includes several conditions but the use of the term generally means
high cholesteral and high triglyceride levels.
https://www.vascularweb.org/vascularhealth/Pages/hyperlipidemia.asp
x.
5

the following “History of Present Illness”:
The patient is the only informant.
Unfortunately, he is not a very good
historian but I consider him being quite
reliable. The patient reported being
depressed, “for a while.” The patient
described having “a bad childhood” and a
difficult life with a lot of jail time which
he blamed for him being unhappy although
lately, over the last 2-3 months, his
depression got much worse. The patient
complained about losing over 15 lbs. over the
last two months, having no appetite, not
being ale to sleep, having very low energy,
lack of interest, feeling sad, tearful,
feeling guilty and quite anxious. He denied
any suicidal ideation or intention or plans
but admitted that sometimes, “I’m going to
say it. I wish I’m not awake the next
morning.” In addition, the patient started
to experience for him some unusual symptoms.
Over the last few months, the patient started
hearing voices. They are low volume voices
so the patient is not able to understand the
content but it concerns him. He also started
seeing people and being paranoid. On a few
occasions, he believed that he had been
followed and he was changing the way he was
walking or hiding behind the dumpster.
Lately, he has avoided going outside because
of a feeling of being followed. At the same
time, the patient told me he does not have
any enemies and that other people don’t share
his beliefs. The patient also described
quite a high level of anxiety. The patient
reported he is still having nightmares and
flashbacks about his past mostly they refer
to him being brutally punished, beaten, by
his stepfather. His most recent triggers are
the deterioration of his medical health and
frustration with difficulty getting care. He
believes he needs. The patient blamed
people. That nobody cares and it is very
difficult to accomplish the tasks that he was
planning. He is currently living at a
halfway house but he has a home plan and
hopes to start living with his step-brother,
6

if approved. The patient is quite isolated.
He has no support.
(R. 266.)

In the “Mental Status” section of his notes, Dr.

Yaraslavsky recorded that Plaintiff appeared pleasant and
cooperative with difficulty ambulating due to his arthritis. He was
coherent but
[e]ye contact was very avoidant. The patient
showed some psychomotor slowness. His mood
and affect appeared depressed. The patient
had typical depressive content with a feeling
of helplessness, guilt. He also endorsed
some paranoid delusions and auditory
hallucinations. He denied command
hallucinations or hallucinations of other
senses. Insight and judgment appeared
relatively well-preserved. Thought process
was linear. The patient denied being
suicidal or homicidal. He appeared oriented
x3. His fund of knowledge seemed to be
average. Memory and concentration overall
was intact. The patient showed no abnormal
or involuntary movements.
(R. 267.)
Dr. Yaraslavsky diagnosed “Major Depressive Disorder,
recurrent, severe, with psychotic features” and assessed a GAF of
45-50.

(R. 267.)

He started Plaintiff on Celexa for depression,

Trazadone for insomnia, and Risperdal for psychotic symptoms.
267-68.)

(R.

Plaintiff was to continue individual therapy at T.W.

Ponessa & Associates and continue medication management with Dr.
Yaraslavsky.

(R. 268.)

On April 18, 2012, Dr. Yaraslavsky recorded that Plaintiff
presented with “no complaints of depression which is lessening but

7

still exhibits auditory hallucinations.”
seeing a therapist on a regular basis.
diagnosis and GAF remained the same.

(R. 264.)
(Id.)

(Id.)

Plaintiff was

Plaintiff’s
Plaintiff’s

medications were changed: Celexa and Risperdal were discontinued
and he was started on Prozac for depression and Geodon for
psychosis.

(R. 265.)

On May 23, 2012, Dr. Yaraslavsky recorded that Plaintiff
presented with improvement and he was tolerating his medications
with no problem.

(R. 262.)

Plaintiff continued to regard his

depression as 8 of 10, and he said he had some residual auditory
hallucinations but overall felt better and did not want to make any
changes.

(Id.)

Dr. Yaraslavsky continued to rate Plaintiff’s

Major Depressive Disorder as severe.

(Id.)

In July 2012, Plaintiff said that he felt better and graded
his depression as 5 or 6 out of 10.

(R. 302.)

He denied

significant psychotic symptoms but did hear voices once in a while.
(Id.)

Dr. Yaraslavsky reported that Plaintiff’s mood and affect

were mildly dysphoric.

(Id.)

He offered Plaintiff an increase in

the Prozac dosage, but Plaintiff declined and Dr. Yaraslavsky noted
that he would offer the same on Plaintiff’s next visit.

(R. 302.)

At this visit, Dr. Yaraslavsky rated Plaintiff’s depression as
moderate and assessed a GAF of 50-55.
In September 2012, Dr. Yaraslavsky noted that Plaintiff
described himself as doing well, and he denied being psychotic or

8

significantly depressed.

(R. 411.)

with his treatment plan.

(Id.)

Patient wanted to continue

Dr. Yaraslavsky again rated

Plaintiff’s depression as moderate and assessed a GAF of 50-55.
(Id.)
In November 2012, Plaintiff reported that he was depressed and
attributed the depression to multiple medical and other problems.
(R. 409.)

He had lost ten pounds due to hernia surgery and was

recovering from that at the time of his visit.
wanted to continue his treatment plan unchanged.

(Id.)
(Id.)

Plaintiff
Dr.

Yaraslavsky assessed Plaintiff’s Major Depressive Disorder to be
recurrent/moderate.

(Id.)

On January 9, 2013, Dr. Yaraslavsky noted that Plaintiff
described himself as doing well overall in terms of his depression
but he was still preoccupied with his medical problems.

(R. 407.)

He had an appendectomy about two weeks before and was still
recovering.

(Id.) Dr. Yaraslavsky again diagnosed Plaintiff’s

Major Depressive Disorder to be recurrent/moderate.

(Id.)

On March 6, 2013, Plaintiff described himself as doing well.
(R. 399.)

He reported that two months earlier he had an experience

where he felt anxious and paranoid, believing that there were two
men following him, but he denied being paranoid at the time of his
March visit with Dr. Yaraslavsky.

(Id.)

Dr. Yaraslavsky’s

diagnosis continued to be Major Depressive Disorder, recurrent,
moderate, and he assessed a GAF of 55.
9

(Id.)

On May 16, 2013, Plaintiff was seen by Vassili V. Arkadiev,
M.D., of T.W. Ponessa & Associates and complained of feeling
anxious, nervous and depressed.

(R. 419.)

Plaintiff admitted to

helplessness and hopelessness and reported auditory hallucinations.
(R. 420.)

Dr. Arkadiev reported that Plaintiff’s concentration was

decreased, his attention was fair, and his affect appeared blunted,
depressed, inappropriate, and guarded.

(Id.)

He also noted that

Plaintiff had delusional ideas of persecution, his long term memory
was fair, his intellectual functioning appeared below average, and
he had a mild tremor.

(Id.)

Dr. Arkadiev diagnosed Plaintiff with

Schizoaffective Disorder, Depressive type, Post Traumatic Stress
Disorder, alcohol and marijuana dependence in remission, and
borderline intellectual functioning.
Plaintiff’s GAF at 50.

(R. 421.)

(Id.)

He assessed

Dr. Arkadiev made some

medication changes, including the addition of Latuda, encouraged
Plaintiff to do psychotherapy, and planned to see him again in two
weeks.

(Id.)

Dauphin County Prison treatment records indicate that
Plaintiff completed a Mental Health Screen on June 15, 2013.

(R.

441.)

Plaintiff answered “no” to all twelve screening questions.

(Id.)

He indicated that he did not have worries he could not get

rid of, he did not feel like he was on an emotional roller coaster,
he had never felt depressed for most of the day for at least two
weeks, he had not been troubled by repeated thoughts, feelings, or

10

nightmares about something he experienced or witnessed, and he had
never felt constantly on guard or watchful.

(Id.)

June 21, 2013, Dauphin County records indicate that Plaintiff
reported to Enos Martin, M.D., that he had been prescribed
medication for schizophrenia, his doctor had placed him on Latuda
but he did not know why, and he also said he occasionally heard
voices.

(R. 428.)

Objectively, Dr. Martin recorded that Plaintiff

had a blunted affect, poor eye contact, did not respond to support,
was not suicidal, and was not overly psychotic.

(Id.)

He

diagnosed Plaintiff with Schizophrenia, Undifferentiated Type and
his plan was to increase Plaintiff’s Risperdal dosage.

(Id.)

On July 15, 2013, Dr. Martin noted that subjectively Plaintiff
was doing better, he had some depression but was working on it, and
he was content with his medications.

(R. 428.)

Objectively, Dr.

Martin reported that Plaintiff had a blunted affect, a mild sense
of humor, and he was not suicidal or delusional.

(Id.)

Because

Plaintiff showed a bit more affect, Dr. Martin shifted Plaintiff’s
diagnosis to Schizoaffective Disorder and planned to monitor him.
(Id.)
2.

Opinion Evidence

a.

Examining Consultant
Plaintiff had a consultative internal medicine examination

with Thomas W. McLaughlin, M.D., on September 5, 2012.
24.)

(R. 314-

Plaintiff’s chief complaints were arthritis, high blood
11

pressure, and hernia.

(R. 314.)

Dr. McLaughlin noted in the

history portion of his report that Plaintiff had a calcaneal
fracture of the right heel in 2008 and was treated with casting.
(Id.)

He was advised to have surgery but did not.

(Id.)

Plaintiff reported that the pain had been increasing over the
preceding two years and he was continuing to be treated
conservatively with a brace but would agree to surgery if the brace
did not help.

(R. 314-15.)

cane were not helping.

He further stated that the brace and

(R. 315.)

Dr. McLaughlin also noted that

Plaintiff was on multiple medications for high blood pressure and
his hernia was due to be repaired in the near future.

(Id.)

Physical examination showed that Plaintiff presented with a
cane for ambulation into the examination room although he was able
to ambulate into the room without the cane.

(R. 316.)

Dr.

McLaughlin observed that Plaintiff’s gait was somewhat antalgic
favoring his right heel and he wore a brace on his right foot and
ankle.

(Id.)

Plaintiff was able to stand unassisted, and rise

from the seated position and step up and down from the examination
table without difficulty or assistive devices.

(Id.)

Dr.

McLaughlin recorded a right inguinal hernia which was not easily
reducible.
atrophy.

(R. 317.)
(R. 318.)

He noted no evidence of muscle weakness or
He found that Plaintiff was able to engage in

appropriate conversation, answer questions appropriately and follow
directions and Plaintiff’s affect was appropriate to the situation.

12

(Id.)

Regarding Plaintiff’s gait, Dr. McLaughlin noted that

Plaintiff was not able to walk on his heels or toes, not able to
walk heel-to-toe, and he could not squat either with or without the
brace.

(R. 318-19.)

Dr. McLaughlin’s Impression/Plan was status-post calcaneal
fracture with malunion and post traumatic arthritis, hypertension,
right inguinal hernia, recently diagnosed hyperlipidemia and
diabetes, and tobacco use.

(R. 319.)

He opined that Plaintiff had

no lifting limitations, he could carry ten pounds frequently and
twenty pounds occasionally, he needed a hand-held assistive device
for balance and ambulation, he had no sitting limitations, and he
was limited as to pushing and pulling with his right lower
extremity.

(R. 323.)

Dr. McLaughlin concluded that Plaintiff

could frequently bend, occasionally kneel and stoop, and never
crouch, balance or climb.

(R. 324.)

environmental restriction noted.
b.

“Heights” was the only

(Id.)

State Agency Consultant
Non-examining state agency psychologist Roger Fretz, Ph. D.,

opined on September 5, 2012, that Plaintiff’s mental impairment did
not satisfy the diagnostic criteria for listing 12.04 Affective
Disorders.

(R. 74.)

He found that Plaintiff had mild restrictions

in his activities of daily living, mild difficulties in maintaining
social functioning, moderate difficulties in maintaining
concentration, persistence or pace, and no repeated episodes of

13

decompensation.

(Id.)

Dr. Fretz concluded that Plaintiff was

limited to unskilled work because of his mental impairment and he
was not disabled.
3.

(R. 80-81.)

Hearing Testimony
ALJ Peter Train held a hearing on September 6, 2013, in

Harrisburg, Pennsylvania.

(R. 29-68.)

Plaintiff and his attorney

were present, as was Mr. Corporeale, a Vocational Expert.

(R. 29.)

At the outset of the hearing, the ALJ explained to Plaintiff that
he sought to determine if Plaintiff, who was incarcerated at the
time, were not in prison, would he be able to engage in work
activity.

(R. 31.)

Plaintiff was forty-eight years old at the

time and confirmed that he had acquired a GED during a previous
incarceration.

(R. 34.)

When the ALJ asked if Plaintiff’s ankle bothered him when he
was sitting, Plaintiff responded that he sometimes had to get up
because it cramped up and this happened every forty-five minutes or
so.

(R. 38.)

Plaintiff testified that he could walk approximately

three blocks without his cane and could walk five or six blocks
with it.

(R. 40.)

Plaintiff reported that he was taking two or

three kinds of pain medication but the pain medications had stopped
working.

(R. 40-41.)

He reported that he had some side effects

from the medications including tiredness, dizziness, and some
nausea.

(R. 41.)

When asked what he thought would happen if the ALJ got him a

14

job where he could sit or stand, work eight hours per day, with a
fifteen minute break in the morning and afternoon and one-half hour
for lunch, where he could occasionally miss a day or two a month
but essentially work eight hours a day five days a week, Plaintiff
responded that he thought it would be a “nice opportunity for me if
I can get something, I’ll at least try and make it work out.
have been trying to, to do what’s necessary.”

(R. 48.)

I

Upon

questioning by his attorney about a full-time position, Plaintiff
added that he would need to be able to take a break for about ten
minutes and walk around if he got a leg cramp and he estimated this
could happen four or five times per day.

(R. 48-49.)

The ALJ asked the Vocational Expert (“VE”) to assume an
individual who has “no limitations in lifting, in terms of standing
and walking he needs a cane for ambulation and balance, there’s no
limitations in, in sitting, he can frequently bend, occasionally
kneel and stoop, should not crouch, balance or crawl.

There’s no

manipulative handling limitations and . . . he should avoid
heights, big heights.”

(R. 58.)

had a high school equivalency.

The ALJ also noted the individual
(R. 59.)

The VE responded that the

individual would be limited to the sedentary exertional level
because of the need to use a cane even while standing.

(Id.)

He

identified the positions of food and beverage order clerk,
semiconductor bonder, call-out operator, and conveyer line bakery
worker.

(R. 59, 62.)

15

ALJ Train then added that the hypothetical individual would
need the opportunity to change position from sitting to standing
every 40 to 45 minutes.

(R. 60)

The VE responded that the

positions previously identified could be done in either position so
the individual can change positions whenever he feels like doing
so.

(Id.)
The next hypothetical added the need for a cane, “to either

lean on the cane, lean on the table, a table, a chair or something,
while he’s standing . . . doing these jobs.”

(Id.)

The VE stated

that the semiconductor bonder position would be eliminated because
it required two hands but the individual could still do the other
jobs.

(Id.)

The fourth hypothetical asked about an individual who would
have to move away from the worksite four or five times per day for
five to ten minutes.

(R. 63.)

The VE responded that the

individual could not do the order clerk or conveyer line position
but could do the call-out operator position and semiconductor
bonder positions.

(R. 63.)

The ALJ then asked if, “as a result of his medications, his
depression, the voices, he’s limited to unskilled work, would that
affect his ability to do the jobs you previously enumerated?”
(Id.)

The VE responded that these limitations would not preclude

the occupations identified.

(Id.)

Plaintiff’s attorney questioned the VE about whether the

16

individual could sustain these jobs if he would be off task more
than fifteen percent of the workday because he would not be able to
focus or concentrate due to side effects of medications and mental
impairments.

(R. 64.)

The VE answered that the individual would

not be able to sustain employment because eighty-five percent is
the minimum productivity required by employers so over fifteen
percent off task exceeds the tolerance level.

(Id.)

The VE also

testified that if the four or five breaks in hypothetical four were
in addition to the typical breaks, the individual would not be able
to sustain any gainful activity.

(R. 66.)

Plaintiff asked if he would make enough money to support
himself if he were to get a job like one identified by the VE. (R.
66.)

The ALJ explained that this consideration was not part of the

equation of whether he was entitled to benefits.
4.

(R. 66-67.)

ALJ Decision
By decision of September 27, 2013, ALJ Train determined that

Plaintiff was not disabled as defined in the Social Security Act
from the alleged onset date of June 28, 2011, through the date of
the decision.

(R. 23.)

He made the following findings of fact and

conclusions of law:
1.

The claimant has not engaged in
substantial gainful activity since June
28, 2012, the application date (20 CFR
416.971 et seq.).

2.

The claimant has the following severe
impairments: degenerative joint disease
right foot and depression (20 CFR
17

416.920(c)).
3.

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
416.920(d), 416.925 and 416.926).

4.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 CFR 416.967(a)
subject to the following. He is able to
carry 10 pounds frequently and 20 pounds
occasionally. He
requires a sit/stand option every 40-45
minutes and use of a cane for ambulation
and balance. He has limited use of the
right lower extremity for
pushing/pulling; is limited to frequent
bending and occasional kneeling,
balancing and climbing; must avoid
heights; and is limited to unskilled
work that can be learned in 30 days or
less.

5.

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

6.

The claimant was born on January 23,
1965 and was 47 years old, which is
defined as a younger individual age 1844, on the date the application was
filed (20 CFR 416.963).

7.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 416.964).

8.

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 8218

41 and 20 CFR Part 404, Subpart P,
Appendix 2).
9.

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 416.969 and 416.969(a)).

10.

The claimant has not been under a
disability, as defined in the Social
Security Act, since June 28, 2012, the
date the application was filed (20 CFR
416.920(g)).

(R. 17-23.)
As set out above, the ALJ concluded Plaintiff had the severe
impairments of degenerative joint disease of the right foot and
depression.

(R. 17.)

He noted that Plaintiff also had

hypertension, diabetes, hyperlipidemia, and abdominal pain but the
record did not support that these impairments were severe.

(Id.)

He also found that the record did not support that the claimed
impairments of PTSD and borderline intellectual functioning were
severe on the basis that the records from Plaintiff’s former
psychiatrist did not include these diagnoses or treatment for these
disorders. (Id.)

ALJ Train noted that he considered all of

Plaintiff’s impairments, including those nonsevere, when
determining Plaintiff’s RFC.

(Id.)

The ALJ concluded that the degenerative joint disease of the
right foot did not meet listing 1.02 because the record did not
establish that Plaintiff had an inability to ambulate effectively.

19

(Id.)

He stated that “[g]enerally, ineffective ambulation means

having insufficient lower extremity functioning to permit
independent ambulation without the use of a hand-held device(s)
that limits function of both upper extremities (i.e., walker, two
canes or two crutches).”

(Id.)

The ALJ added that Plaintiff

“uses only a single cane and is able to carry out routine
ambulatory activities.

He testified that he is able to walk three

blocks without a cane, can shop leaning on a grocery cart, and
could take public transportation such as a share-a-ride van.”

(R.

17-18.)
The ALJ also concluded that Plaintiff’s mental impairment did
not meet or equal the criteria of listing 12.04.

(R. 18.)

ALJ Train determined that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of his symptoms
were not entirely credible.

(R. 20.)

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

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,
20

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
21

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. 22-23.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
22

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.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an
23

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

See, e.g., Knepp v.

“There is no requirement

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

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

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

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

the Cotter doctrine is not implicated.”

Hernandez v.

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

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.
24

See, e.g., Albury v.

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

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

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

Id.

“These

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

Hess v. Secretary of Health,

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

As such,

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

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases
25

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 alleges the following: 1) the ALJ

erred by finding Plaintiff’s multiple impairments to be “nonsevere”; 2) the acting commissioner failed to sustain her burden of
establishing that there is other work in the national economy that
Plaintiff could perform; 3) substantial evidence does not support
the ALJ’s step three findings; and 4) the ALJ erred in assessing
Plaintiff’s credibility.
1.

(Doc. 12 at 1-2.)

Step Two Findings
Plaintiff first asserts that the ALJ erred by finding his

multiple impairments to be “non-severe”–-specifically asserting
that the ALJ should have found his PTSD and schizoaffective
disorders severe.

(Doc. 12 at 13-16.)

I disagree.

The ALJ stated that he found no conclusive evidence to support
Plaintiff’s counsel’s assertion that Plaintiff’s PTSD was a severe
impairment.

(R. 17.)

The ALJ supports this determination with the

statement that Plaintiff received the diagnosis after a single
examination with a new psychiatrist in May 2013.
Exhibit 21F).)

(Id. (citing

The cited exhibit includes Plaintiff’s May 16,

2013, visit with Vassili V. Arkadiev, M.D., of T.W. Posessa &
26

Associates who diagnosed Schizoaffective Disorder and PTSD rather
than the Major Depressive Disorder diagnosis of Plaintiff’s longterm treating psychologist, Yury Yaraslavsky, M.D.

(R. 267, 419.)

Dr. Yaraslavsky’s diagnosis remained Major Depressive Disorder from
his first meeting with Plaintiff in February 2012 through January
2013.

(R. 267, 409.)

During this period of time he saw Plaintiff

regularly and he assessed the Major Depressive Disorder to be
severe at the outset and moderate as of January 2013.

(Id.)

The

Major Depressive Disorder was rated severe in February, April and
May of 2012.

(R. 262, 264, 267.)

In July, September, and November

2012 and January and March 2013, it was rated moderate.

(R. 302,

407, 409, 411.)
Because Plaintiff’s long-term treating psychiatrist did not
diagnose PTSD or Schizoaffective Disorder, and because Dr. Arkadiev
saw Plaintiff only once, the ALJ appropriately discounted the onetime diagnosis.

Because the Dauphin County Prison records do not

provide an analysis or significant support for the diagnoses
identified in the June and July 2013 mental health records (R. 428,
441), they do not undermine the ALJ’s finding or support
Plaintiff’s assertion that his PTSD and Schizoaffective Disorder
were severe impairments.
Furthermore, as argued by Defendant, this claimed error is not
cause for remand because the ALJ found in favor of Plaintiff at
step two and continued his analysis to step five, considering all

27

of Plaintiff’s credibly established limitations in deciding
Plaintiff’s RFC.

(Doc. 14 at 14-16 (citing Salles v. Comm’r of

Soc. Sec., 229 F. App’x 140, 145 n.5 (3d Cir. 2007)).)3
2.

Step Five Determination
Plaintiff alleges that Defendant failed to sustain her burden

of establishing that there is other work in the national economy
that Plaintiff could perform.

(Doc. 12 at 17.)

I disagree.

As set out above, at step five the ALJ must determine whether
the claimant’s impairment together with his age, education, and
past work experiences preclude him from doing any other sort of
work.

20 C.F.R. § 404.1520(a)(4)(v).

The Acting Commissioner has

the burden of showing that jobs exist in the national economy that
a person with the claimant’s abilities, age, education, and work

3

In conjunction with this step two claimed error, Plaintiff
asserts that the ALJ did not properly discuss GAF scores. (Doc. 12
at 15-16 (citing R. 21).) This assertion requires no further
discussion in that Plaintiff’s claim is merely conclusory.
Further, the quotation cited was made in the context of the ALJ’s
RFC determination, not his step two decision regarding non-severe
mental impairments.
Similarly, Plaintiff does not provide adequate support for his
assertion that the ALJ should have sent Plaintiff to a
psychological consultative examiner. (See Doc. 12 at 16.) As
argued by Defendant, the regulations provide that a consultative
examination may be requested if the claimant’s medical sources
cannot or will not give sufficient evidence about an impairment and
may be required if the evidence is not sufficient to support a
decision on the claim. (Doc. 14 at 18-19 (citing 20 C.F.R. §§
404.1517, 404.1519a(b)).) Here the ALJ did not determine that the
record did not contain sufficient evidence to support a decision on
Plaintiff’s claim.

28

experience can perform.

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

Cir. 1993).
Plaintiff asserts that even with the sit/stand option
described by the ALJ, the VE was given inadequate information to
conclude that Plaintiff could perform the jobs of call-out
operator, semiconductor bonder, food and beverage clerk and
conveyer line bakery worker because SSR 96-9p requires specificity
as to the duration of the sit/stand option.

(Doc. 12 at 17.)

Plaintiff relates this assertion to considerations of the extent to
which the occupational base is eroded and also faults the ALJ for
failing to note the significant erosion caused by the use of a cane
and Plaintiff’s limitations in his ability to sit, stand, and walk.
(Doc. 12 at 17-18.)
Contrary to Plaintiff’s assertions, the ALJ’s hypotheticals
included the durational component of the sit/stand option (R. 60)
and, “in terms of standing and walking,” the use of a cane for
ambulation and balance (R. 60).

The VE acknowledged these

limitations and, therefore, his responses considered the erosion of
the sedentary occupational base caused by the limitations
identified in the hypothetical.

(R. 58-60.)

Given that an ALJ is

not required to cite rulings or use specific language in his
analysis, Holiday v. Barnhart, 76 F. App’x 479, 482 (3d Cir. 2003),
this claimed error is not cause for remand.

29

3.

Step Three Findings
Plaintiff alleges that substantial evidence does not support

the ALJ’s step three findings because he erred in concluding that
Plaintiff does not meet or equal Listing 1.02 which pertains to
major dysfunction of a joint.

(Doc. 12 at 19.)

I disagree.

Plaintiff apparently recognizes that to meet or equal Listing
1.02, he must show involvement of one major peripheral weightbearing joint resulting in an inability to ambulate effectively as
defined in Section 1.00B2b.

(Doc. 12 at 19.)

However, Plaintiff

does not attempt to show how his right foot/ankle problem satisfies
the definition in either his supporting or reply brief.
12, 14.)

(See Docs.

He cites the ALJ’s finding that
“the record does not establish the claimant
has an ability to ambulate effectively.
Generally, ineffective ambulation means
having insufficient lower extremity
functioning to permit independent ambulation
without the use of a hand-held device(s) that
limits function of both upper extremities
(i.e., walker, two canes or two crutches).
The claimant uses only a single cane and is
able to carry out routine ambulatory
activities.”

(Doc. 12 at 21-22 (quoting R. 17).)

In a conclusory fashion,

Plaintiff states that “[t]his is clearly error of law and not
supported by substantial evidence.”

(Doc. 12 at 22.)

Plaintiff

does not refute the requirements set out by the ALJ–-he does not
identify the “error of law.”

He must do far more to sustain his

30

burden.
Further, I conclude that he would be unable to do so here.

As

set out by Defendants, under Listing 1.02B Plaintiff was required
to meet Section 1.00B2b.
b.

(Doc. 14 at 22.)

What we mean by inability to ambulate
effectively.

(1) Definition. Inability to ambulate
effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s)
that interferes very seriously with the
individual’s ability to independently
initiate, sustain, or complete activities.
Ineffective ambulation is defined generally
as having insufficient lower extremity
functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held
assistive device(s) that limits the
functioning of both upper extremities.
(Listing 1.05C is an exception to this
general definition because the individual has
the use of only one upper extremity due to
amputation of a hand.)
(2) To ambulate effectively, individuals must
be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to
carry out activities of daily living. They
must have the ability to travel without
companion assistance to and from a place of
employment or school. Therefore, examples of
ineffective ambulation include, but are not
limited to, the inability to walk without the
use of a walker, two crutches or two canes,
the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the
inability to use standard public
transportation, the inability to carry out
routine ambulatory activities, such as
shopping and banking, and the inability to
climb a few steps at a reasonable pace with
the use of a single hand rail. The ability
31

to walk independently about one’s home
without the use of assistive devices does
not, in and of itself, constitute effective
ambulation.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b.

As stated by the

ALJ and pointed out be Defendant, Plaintiff uses only a single
cane, and could carry out routine ambulatory activities, including
that he is able to walk three blocks without his cane, shop, and
take public transportation.

(R. 18; Doc. 14 at 23.)

Therefore,

given the requirements of § 1.00B2b, the evidence of record
regarding Plaintiff’s ambulation, and Plaintiff’s failure to
sustain his burden of showing the ALJ erred at step three, this
claimed error is without merit.
4.

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

assessing his credibility because ALJ Train did not do a legally
correct pain analysis in that he did not apply the factors required
by 20 C.F.R. § 416.929(c) and SSR 96-7p and his assessment is not
based on substantial evidence.

(Doc. 12 at 22.)

I disagree.

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)).
32

“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)).
An ALJ is not required to specifically mention relevant Social
Security Rulings.

See Holiday, 76 F. App’x at 482.

It is enough

that his analysis by and large comports with relevant provisions.
Id.
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
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.

“One strong indication of the credibility of an

individual’s statements is their consistency, both internally and
with other information in the case record.”

33

SSR 96-7p.

The Social Security Regulations provide a framework under
which a claimant’s subjective complaints are to be considered.
C.F.R. § 404.1529.

20

First, symptoms such as pain, shortness of

breath, and fatigue will only be considered to affect a claimant’s
ability to perform work activities if such symptoms result from an
underlying physical or mental impairment that has been demonstrated
to exist by medical signs or laboratory findings.
404.1529(b).

20 C.F.R. §

Once a medically determinable impairment which

results in such symptoms is found to exist, the Commissioner must
evaluate the intensity and persistence of such symptoms to
determine their impact on the claimant’s ability to work.

Id.

In

so doing, the medical evidence of record is considered along with
the claimant’s statements.

Id.

The regulations provide that factors which will be considered
relevant to symptoms such as pain are the following: activities of
daily living; the location, duration, frequency and intensity of
the pain or other symptoms; precipitating and aggravating factors;
the type, dosage, effectiveness and side effects of medications
taken to alleviate symptoms; treatment received other than
medication intended to relieve pain or other symptoms; other
measures used for pain/symptom relief; and other factors concerning
functional limitations and restrictions due to pain or other
symptoms.

20 C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-

34

vii).
Although Plaintiff alleges that the ALJ failed to consider
evidence supporting Plaintiff’s allegations (Doc. 12 at 23-25), the
ALJ explained the relevant two-step process and noted studies and
examinations which supported Plaintiff’s allegations of pain (R.
19-22).

Importantly, “[t]here is no requirement that the ALJ

discuss in its opinion every tidbit of evidence included in the
record,” Hur, 94 F. App’x at 133.

Regarding Plaintiff’s averment

that the ALJ’s credibility analysis ran afoul of the relevant
regulation and ruling, the ALJ did not disregard Plaintiff’s
complaints of pain and medication side effects but found
Plaintiff’s allegations were not fully supported by medical
evidence, Plaintiff’s testimony, and activities of daily living.
(R. 20-22.)

Therefore, the ALJ did not run afoul of relevant

provisions and I cannot conclude that his RFC determination is not
supported by substantial evidence.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal of the
Acting Commissioner’s decision is properly denied.

An appropriate

Order is filed simultaneously with this action.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 9, 2015
35