Ryman v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, 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 10/14/16. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA LEE RYMAN,
:CIVIL ACTION NO. 3:16-CV-52
CAROLYN W. COLVIN,
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”).
alleged disability beginning on June 28, 2010, and she remained
insured through December 31, 2010.
Law Judge (“ALJ”) who evaluated the claim, Jarrod Tranguch,
concluded in his June 24, 2014, decision that Plaintiff’s severe
impairments of a history of morbid obesity, degenerative disc
disease, and history of left ovarian cystic teratoma, status post
surgery with post-surgical complications, did not alone or in
combination meet or equal the listings.
He also found
that Plaintiff had the residual functional capacity (“RFC”) to
perform light work with certain nonexertional limitations and that
she was capable of performing her past relevant work.
ALJ Tranguch therefore found Plaintiff was not disabled.
With this action, Plaintiff asserts that the Acting
Commissioner’s decision should be reversed or remanded for the
following reasons: 1) the ALJ erred by failing to give proper
weight to the treating physician’s opinion; 2) the ALJ committed
reversible error by relying on an incomplete hypothetical question;
3) the ALJ committed reversible error by finding that Plaintiff was
not fully credible because of her activities of daily living; and
4) the ALJ did not properly consider Plaintiff’s complaints of
(Doc. 17 at 4-13.)
After careful review of the record and
the parties’ filings, the Court concludes this appeal is properly
Plaintiff protectively filed for DIB on February 22, 2013. (R.
The claims were initially denied on April 9, 2013, and
Plaintiff filed a request for a hearing before an ALJ on July 28,
ALJ Tranguch held a hearing on June 4, 2014.
Plaintiff, who was represented by an attorney, testified as did
Vocational Expert (“VE”) Gerald Keating.
As noted above,
the ALJ issued his unfavorable decision on June 24, 2014, finding
that Plaintiff was not disabled under the Social Security Act
during the relevant time period.
Plaintiff’s request for review of the ALJ’s decision was dated
July 28, 2014.
The Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision on November 9, 2015.
In doing so, the ALJ’s decision became the decision of the
On January 11, 2016, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.
filed her answer and the Social Security Administration transcript
on March 21, 2016.
(Docs. 10, 11.)
brief on June 22, 2016.
July 18, 2016.
August 11, 2016.
Plaintiff filed her supporting
Defendant filed her brief on
Plaintiff filed her reply brief on
Therefore, this matter is fully
briefed and ripe for disposition.
Plaintiff was born on May 13, 1951, and was fifty-nine years
old as of her date last insured.
(R. 57; Doc. 17 at 2.)
She has a
B.S. degree in computer science and her past relevant work includes
jobs as a Telemarketer and a Research and Development/Networker.
(R. 59; Doc. 17 at 2.)
Because of reported pain, Plaintiff’s primary care physician,
Barry Kurtzer, M.D., ordered MRI of the cervical spine and lumbar
spine which Plaintiff had on March 9, 2010.
cervical spine MRI showed “mild to moderate neuroforaminal
narrowing . . . at the C6-7 level and to a lesser extent
The lumbar MRI which showed “mild
degenerative change . . . without significant central canal
compromise or neuroforaminal narrowing and mild edema right L5
pedicle likely early stress reaction.”
On March 5,
2010, Plaintiff had nerve conduction studies of the left median and
both ulnar nerves.
Both studies were within normal
On March 18, 2010, Plaintiff saw Dr. Kurtzer to discuss her
He increased her dosage of lyrica and
noted that, at the time, she was taking Vicodin, fish oil, and
At her May 10, 2010, visit, Plaintiff complained of pain in
her left hip for which Dr. Kurtzer planned to get an MRI of the
spine and hip.
The May 19, 2010, left hip MRI showed a
“large pelvic mass probably dermoid neoplasm left ovary” for which
surgical consultation was recommended.
Plaintiff again saw Dr. Kurtzer on June 1, 2010, with
complaints of hip and back pain.
she was to be admitted to Mercy Hospital.
Dr. Kurtzer noted that
Plaintiff had a consultation with J. Michael Tedesco, D.O.
He recorded that Plaintiff was admitted to the hospital on
that day because of lower hip and back pain.
assessed her to have a probable cystic teratoma, left ovary.
He planned to do a pelvic ultrasound and schedule surgery.
Plaintiff had surgery on June 21, 2010.
Plaintiff tolerated the procedure without difficulty and she was
transferred to the recovery room in stable condition.
Plaintiff was not discharged until June 26, 2010, because she had
post-operative hemmorrhage and wound dehiscence.
post-operative course was noted to be “quite rocky” with return
visits to the operating room to address the hemorrhage and wound
At the time of discharge, Plaintiff was
ambulating and voiding without difficulty.
instructed to return in one week for incision check and to return
sooner with evidence of abdominal pain, bleeding, fevers, or
On July 7, 2010, Plaintiff called Dr. Tedesco complaining of
pain in her lower abdomen and discharge from the suture site.
She visited his office with the same complaints on July 20,
Plaintiff followed up with Dr. Kurtzer in August 2010.
315, 317, 318.)
On August 18, 2010, she complained of pain at her
Dr. Kurtzer noted that her right lower
abdomen was tender and her incision was healed with two scabbed
He ordered a CT of the abdomen and pelvis which she
had on August 26, 2010.
(R. 315, 460.)
The scan showed “[n]o
evidence of mass or acute inflammatory process in the abdomen or
On August 31, 2010, Plaintiff complained of
severe pain at the surgery site and profuse sweating.
Dr. Kurtzer noted that he wondered if Plaintiff was developing RSD,
but “for the time being” he was going to use some Lidoderm patch
Plaintiff saw Dr. Kurtzer again on September 28, 2010, and
complained of back pain.
No objective findings were
Medications noted were Vicodin and Ambien.
A referral to Dr. Dhaduk was also noted.
At Plaintiff’s next office visit of record--January 5, 2011-Dr. Kurtzer noted that Plaintiff still had back pain.
No objective findings were recorded.
Dr. Kurtzer indicated that
Plaintiff was checking her insurance coverage for “PT & ortho” and
she would continue Vicodin.
On January 25, 2011, Plaintiff’s chief complaints to Dr.
Kurtzer were shortness of breath, cough, and congestion.
No other complaints or objective findings were recorded.
The only notation made at Plaintiff’s February 28, 2011, visit
was “Routine B/W.”
On April 5, 2011, Plaintiff saw Dr. Kurtzer with the chief
complaint of ear pain.
She also complained of abdominal
pain, and Dr. Kurtzer noted that she had two hernias in her abdomen
in the surgical site, knee pain, and that x-ray showed severe
He planned to start Plaintiff on an
antiinflammatory and refer her to surgery.
State Agency Consultant
On April 2, 2013, Kurt Maas, M.D., a state agency consulting
physician, reviewed the record and noted “[n]o follow up after
hospitalization to [date last insured] to determine claimant’s
Therefore there is insufficient evidence to
determine severity of claimant’s impairment.”
Primary Care Physician
Dr. Kurtzer, Plaintiff’s primary care physician, completed a
Medical Source Statement of Ability to Do Work-related Activities
(Physical) (“Statement”) on October 24, 2013.
Statement’s introductory information, Dr. Kurtzer was asked to
answer the questions with regard to Plaintiff’s “conditions and
limitations on and before June of 2010.”
the following: Plaintiff could occasionally lift and carry up to
twenty pounds; at one time without interruption, she could sit for
one hour, stand for twenty minutes, and walk for ten minutes; she
could occasionally use her right hand for reaching overhead,
handling, and pushing/pulling and frequently use it for all other
reaching, fingering and feeling; she could use her left hand
occasionally for overhead reaching, handling, feeling, and
pushing/pulling and occasionally use it for all other reaching and
fingering; she could frequently operate foot controls with both
feet; she could never be exposed to humidity or wetness and
occasionally be exposed to unprotected heights, moving mechanical
parts, operating a motor vehicle, dust, odors, fumes and other
pulmonary irritants, extreme heat and extreme cold; she could be
exposed to moderate office noise; she could never climb ladders or
scaffolds, stoop, kneel, or crouch and she could occasionally climb
ramps and stairs, balance, and crawl; she could perform activities
like shopping, walk without using a wheelchair, walker, or two
canes or crutches, take public transportation, prepare simple
meals, care for her personal needs, and sort, handle or use paper
files but she could not travel without a companion for assistance,
walk a block at a reasonable pace on rough or uneven surfaces, or
climb a few steps at a reasonable pace with the use of a single
Although the form statement requested that
the provider identify the medical or clinical findings supporting
these assessments, Dr. Kurtzer did not do so.
Regarding sitting/standing/walking totals in an eight-hour day, Dr.
Kurtzer made no findings.
Rather, he noted “retired.”
When requested to “state any other work-related activities,
which are affected by any impairments, and indicate how the
activities are affected” and identify the medical findings that
support this assessment, Dr. Kurtzer noted “SOB, Sweating profuse.”
He did not note the dates for which the
findings applied or opine whether the limitations lasted for more
than twelve months.
Also on October 24, 2013, Dr. Kurtzer completed a Clinical
Assessment of Pain (“Assessment”).
In the Assessment, he
offered the following opinions: “Pain is . . . present to such an
extent as to be distracting to adequate performance of daily
activities or work”; “Physical activity such as walking, standing,
and bending . . . greatly increases pain causing abandonment of
tasks related to daily activities or work”; “Medication impacts the
individual’s work ability to the extent that . . . medications will
severely limit the patients [sic] effectiveness in the work place
due to distraction, inattention, drowsiness, etc.”
Function Report and Hearing Testimony
In her March 4, 2013, Function Report, Plaintiff indicated
that it took her four to five months to recover from her June 2010
She stated that testing related to follow-up
pain in her abdomen showed a tumor which was being monitored and
diabetic problems which affected nerves in her feet and left hand.
Plaintiff noted that she had depression due to all of these
Plaintiff described her daily activities to include caring for
her dog, playing on the computer, watching TV, napping, and making
Regarding personal care, Plaintiff
related that she could not take long showers because of back pain
and trouble standing, and she could not walk long distances and had
to sit down while shopping so she sometimes made several trips to
the store per week instead of one.
Plaintiff indicated she
could do light household chores like vacuuming but she had to rest
before finishing and she was unable to do outside work.
She explained that she was unable to do these things because of too
much lifting, excessive sweating, and lack of drive.
Plaintiff reported she regularly goes to Walmart and the grocery
store, she goes out with friends to eat or to gun shows monthly,
and she can go out alone and does so most of the time because she
is embarrassed by her sweating.
She indicated that
her abilities to lift, squat, bend, stand, reach, walk, kneel, and
climb stairs were affected by her conditions due to back and
abdominal pains and her ability to concentrate was affected because
her mind tended to wander due to frustration.
that she no longer enjoyed going out because walking problems and
the previously mentioned sweating problem were sources of
embarrassment to her and the people she might be with.
In the Supplemental Function Questionnaire which addressed
Plaintiff’s fatigue, she said the fatigue began after her June 2010
surgery, it increased since then due to pain from the surgery and
her original back problem, she felt fatigued daily and she takes
some medication that helps with the depression and activity level.
In the Supplemental Function Questionnaire which
addressed Plaintiff’s pain, she said the pain began in 2010–-at
first she had back pain, then pain related to her surgery and her
knee and the pain is almost constant.
b. Hearing Testimony
At the June 4, 2014, hearing, Plaintiff’s attorney stated in
his opening remarks that the main issue was Plaintiff’s abdominal
surgery and the related complications.
arthritis and body habitus were secondary.
He added that
ALJ Tranguch directed Plaintiff to focus on the period of June
2010 through the date last insured of December 2010 in answering
the questions posed.
Plaintiff said she became disabled
as of June 28, 2010, because that was the date of her surgery.
She explained that she had four surgeries, ended up in the
ICU, and was in the hospital for one week rather than the
outpatient dermoid cyst removal for which she went into the
Plaintiff testified that, after her discharge,
she stayed with friends until about November and they continued to
help her after she returned home.
She said that she was
able to do most things on her own by the end of December 2010 but
her friends continued to help until mid-January, although some
tasks remained difficult.
Plaintiff noted that during
this period of time she was either on Percocet or Vicodin which
made her very sleepy and groggy.
ALJ Tranguch asked VE Gerald Keating to consider an individual
of the same age, education, and work experience as Plaintiff who
could occasionally lift and carry up to twenty pounds and
frequently up to ten pounds, who could stand and/or walk up to six
hours in an eight-hour workday, could sit for at least six hours,
could occasionally bend, stoop, crouch, crawl, kneel, use ramps and
climb stairs but should avoid occupations requiring any climbing on
ladders, ropes or scaffolds.
The VE testified that such
an individual would be able to perform Plaintiff’s past work as a
The VE also testified that the position
would remain intact if the hypothetical individual were further
limited to lifting and carrying no more than ten pounds and
standing and walking for no more than two hours in an eight-hour
If the individual were limited to work that is
classified as either unskilled or semi-skilled due to medication
side-effects interfering with concentration, VE Keating said the
telemarketer position would be intact.
In the fourth
hypothetical, the individual would need to take unscheduled breaks
during the day to lie down or take naps, would be expected to be
off task up to twenty percent of the workday, and would be expected
to be late, absent or leave early two or more days per month on
The VE testified that such an individual would
not be able to perform past work or any other type of jobs.
As noted above, ALJ Tranguch issued his decision on June 24,
He made the following Findings of Fact and
Conclusions of Law:
The claimant last met the insured
status requirements of the Social
Security Act on December 31, 2010.
The claimant did not engage in
substantial gainful activity (SGA)
during the period from her alleged
onset date of June 28, 2010 through her
date last insured of December 31, 2010
(20 CFR 404.1571 et seq.).
Through the date last insured, the
claimant had the following severe
impairments: morbid obesity;
degenerative disc disease; and history
of left ovarian cystic teratoma, status
post surgery with post-surgical
complications (20 CFR 404.1520(c)).
Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled the severity of one
of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the
entire record, the undersigned finds
that, through the date last insured,
the claimant had the residual
functional capacity to perform a range
of light work as defined in 20 CFR
404.1567(b). She could lift and carry
20 pounds occasionally and 10 pounds
frequently. She could stand and/or
walk for up to 6 hours and sit for 6
hours in an 8-hour workday. She could
occasionally bend, stoop, crouch,
crawl, kneel, use ramps, and climb
stairs. She needed to avoid
occupations requiring any climbing on
ladders, ropes, or scaffolds.
Through the date last insured, the
claimant was capable of performing past
relevant work as a
representative. This work did not
require the performance of work-related
activities precluded by the claimant’s
residual functional capacity (20 CFR
The claimant was not under a
disability, as defined in the Social
Security Act, at any time from June 28,
2010, the alleged onset date, through
December 31, 2010, the date last
insured (20 CFR 404.1520(f)).
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1
It is necessary for the
“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 than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
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).
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.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
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
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
four of the sequential evaluation process when the ALJ found that
Plaintiff was capable of performing past relevant work as a
telemarketer/telephone sales representative.
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.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
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.
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
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.”
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. Comm’f of
Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
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.
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 . . .”).
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
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. Comm’r
of Soc. Sec., 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.
Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s decision
should be reversed or remanded for the following reasons: 1) the
ALJ erred by failing to give proper weight to the treating
physician’s opinion; 2) the ALJ committed reversible error by
relying on an incomplete hypothetical question; 3) the ALJ
committed reversible error by finding that Plaintiff was not fully
credible because of her activities of daily living; and 4) the ALJ
did not properly consider Plaintiff’s complaints of pain.
Treating Physician’s Opinion
Plaintiff first asserts that ALJ Tranguch erred by failing to
give sufficient weight to Dr. Kurtzer’s opinion.
(Doc. 17 at 4.)
Defendant contends that substantial evidence supports the ALJ’s
evaluation of the opinion.
(Doc. 18 at 12.)
The Court concludes
Plaintiff has not shown that this claimed error is cause for
reversal or remand.
A treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.
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
This principal is codified at 20 C.F.R.
404.1527(c)(2), and is widely accepted in the Third Circuit.
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.”
20 C.F.R. § 404.1527(c)(2).2
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
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.
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
credibility judgments, speculation or lay opinion.”
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)).
Similarly, greater deference is due an examining source than a
20 C.F.R. § 404.1527(c)(1).
404.1527(c)(3) provides the following:
The more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the
more weight we will give that opinion. The
better an explanation a source provides for
an opinion, the more weight we will give that
opinion. Furthermore, because nonexamining
sources have no examining or treating
relationship with you, the weight we will
give their opinions will depend on the degree
to which they provide supporting explanations
for their opinions. We will evaluate the
degree to which these opinions consider all
of the pertinent evidence in your claim,
including opinions of treating and other
In his review of evidence, ALJ Tranguch noted that the main
issues prior to the date last insured
were some complications after her surgery in
June 2010 (See 1F and 2F). However, the
post-surgery recovery, during which time she
was probably limited to a less than
sedentary residual functional capacity (as
she needed help with her personal care,
etc.), lasted less than 12 months. By her
date last insured (which is approximately
six months after the alleged onset date),
she had recovered to the point where she was
basically living independently (with friends
coming over to help her at times) ( Hearing
Testimony). Given her underlying
degenerative disc disease, some residual
abdominal pain, and her obesity, a light
residual functional capacity is appropriate.
In 3F, the claimant mentions pain at
the surgery site in August 2010 (pp. 67-68
[Kurtzer Office Notes (R. 314-15)]), but in
September 2010, her complaint was back pain
with no objective findings noted (p. 66
[Kurtzer Office Notes (R. 313)]). In
November 2010, she had some shortness of
breath and cough/congestion, with no mention
of back or abdominal pain, and no objective
findings (p. 65 [Kurtzer Office Notes (R.
312)]).3 In January 2011 (after the date
last insured), there is a note of back pain
and she was prescribed Vicodin (p. 64
[Kurtzer Office Notes (R. 311)]).
This office visit was on January 25, 2011. (R. 312.)
There are no office visits of record from September 28, 2010, (R.
313) to January 5, 2010 (R. 311).
The ALJ considered Dr. Kurtzer’s October 2013 opinion, noting
[t]he limitations set forth by Dr. Kurtzer
purportedly relate back to June 2010 ([Ex.
8F] p.1). The undersigned gives Dr.
Kurtzer’s medical source statement opinion
limited weight because the form was not
actually completed until October 24, 2013
(pp. 6-7). Dr. Kurtzer actually left blank
the space provided for how long the claimant
could sit, stand, and walk total in an 8hour workday and noted that the claimant is
“retired” (p. 2). Dr. Kurtzer’s actual
treatment records from the period in
question reflect somewhat inconsistent
complaints and are lacking in terms of
actual objective physical examination
findings (See 3F and the discussion above)
to support his opinion. The claimant
testified that she was basically living
independently, with friends coming over to
help her at times, by the time of her date
last insured, about six months after her
surgery. Her post-surgery recovery lasted
less than 12 months.
Plaintiff argues that the explanation provided by ALJ Tranguch
(Doc. 17 at 4.)
She first asserts that the
retrospective nature of the opinion is not a basis to reject it.
(Id. at 7.)
The Court agrees that this basis alone would be
However, as set out above, ALJ Tranguch provided
several reasons for assigning the opinion limited weight.
other reasons provided adequately explain his determination, remand
is not necessary.
See, e.g., Albury, 116 F. App’x at 330 (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
also Burnett, 220 F.3d at 119 (“[O]ur primary concern has always
been the ability to conduct meaningful judicial review.”).
Plaintiff next asserts that the fact that Dr. Kurtzer did not
answer one question does not render the statement unsupported.
(Doc. 17 at 8.)
This averment in general is accurate.
ALJ Tranguch cites other shortcomings which are related to and
consistent with his review of evidence.
(See R. 15-16.)
found the treatment records during the relevant time period did not
support the opinion (R. 16), and Plaintiff does not address the
evidence specifically cited by the ALJ.4
Rather, she points to
evidence which post dates the date last insured (Doc. 17 at 9),
records in which Dr. Kurtzer noted evidence of abdominal hernias or
adrenal mass causing pain in April, June and December of 2011 (R.
299, 301, 306, 309).
Thus, these records do not contradict the
ALJ’s findings regarding records during the relevant time period or
Though the ALJ identified the wrong date for one office
visit, see supra n.3, this error does not fundamentally undermine
his analysis. The misdated office visit record (R. 312), which was
actually the record of an office visit approximately one month
after the date last insured, does not provide objective support for
Dr. Kurtzer’s opinion. The office visit notes show that Plaintiff
complained only of shortness of breath, cough, and congestion.
(Id.) The record also indicates that Plaintiff did not see Dr.
Kurtzer from September 28, 2010, to January 5, 2010, and she did
not complain of abdominal pain from August 31, 2010, to April 5,
2011, at which time Dr. Kurtzer attributed the pain to abdominal
surgery site hernias. (R. 309-14.)
show that Plaintiff was disabled within the meaning of the act for
a continuous period of twelve months.
notation that Dr. Kurtzer cited Plaintiff’s shortness of breath and
profuse sweating in support of his assessed limitations (id. at 6),
does not show the opinion was well supported or entitled to
additional weight: the identified support was not specifically
indicated with each set of limitations as requested in the form (R.
480-85) and the bases cited do not include the pain which Plaintiff
claims to be a major contributing factor in her inability to work.
Plaintiff’s contention that the ALJ erred by not including a
sit-stand option in his RFC is grounded in the acceptance of the
limitations set out in Dr. Kurtzer’s Statement.
(Doc. 17 at 8-9.)
Because Plaintiff has not shown the ALJ erred in his analysis of
Dr. Kurtzer’s opinion, the sit-stand argument lacks foundation and
need not be further discussed.
Plaintiff’s final argument on this issue is that the ALJ’s
failure to address Dr. Kurtzer’s Clinical Assessment of Pain is
alone cause for reversal.
(Doc. 17 at 9.)
This claimed error is
The ALJ cited Dr. Kurtzer’s medical source statement
as Exhibit 8F, the last page of which is the Assessment to which
Plaintiff refers (see R. 485 (Ex. 8F at 7)).
ALJ Tranguch sets out
specific irregular reports of pain and the lack of objective
findings noted in Dr. Kurtzer’s treatment notes (R. 15-16) and
references this discussion and the exhibit in which the notes are
found in conjunction with his determination that one reason the
opinion is entitled to limited weight is lack of support in
treatment records (R. 16).
Thus, Plaintiff’s complaints of pain
were addressed in the ALJ’s RFC analysis and inferentially included
in his opinion assessment.
Because the relevant legal framework
does not require the ALJ to discuss every finding set out in a
treating source opinion, Plaintiff has not shown error on the basis
Plaintiff next asserts that the ALJ committed reversible error
by relying on an incomplete hypothetical question.
(Doc. 17 at
Defendant maintains that substantial evidence supports the
ALJ’s hypothetical question.
(Doc. 18 at 23.)
The Court concludes
Plaintiff has not shown that this claimed error is cause for
reversal or remand.
The Third Circuit Court of Appeals has held that to accurately
portray a claimant’s impairments, the ALJ must include all
“credibly established limitations” in the hypothetical.
v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (citing Plummer v.
Apfel, 186 F.3d 422, 431 (3d Cir. 1999)).
Case law and
regulations5 address when a limitation is credibly established. 399
F.3d at 554.
Rutherford specifically identifies 20 C.F.R. §§ 416.945,
929(c) and 927 as relevant to the inquiry. 399 F.3d at 554.
Limitations that are medically supported and
otherwise uncontroverted in the record, but
that are not included in the hypothetical
question posed to the expert, preclude
reliance on the expert’s response (Burns, 312
F.3d at 123). Relatedly, the ALJ may not
substitute his or her own expertise to refute
such record evidence (Plummer, 186 F.3d at
429). Limitations that are medically
supported but are also contradicted by other
evidence in the record may or may not be
found credible–the ALJ can choose to credit
portions of the existing evidence but “cannot
reject evidence for no reason or for the
wrong reason” (a principle repeated in Mason
v. Shalala, 994 F.2d 1058, 1066 (3d Cir.
1993); [20 C.F.R. § 416.]929(c)(4)). Finally,
limitations that are asserted by the claimant
but lack objective medical support may
possibly be considered nonetheless credible.
In that respect the ALJ can reject such
limitation if there is conflicting evidence
in the record, but should not reject a
claimed symptom that is related to an
impairment and is consistent with the medical
record simply because there is no objective
medical evidence to support it. ([20 C.F.R. §
399 F.3d at 554.
Plaintiff’s very brief argument hinges on the limitations
found in Dr. Kurtzer’s statement and the assertion that they are
(Doc. 17 at 10-11.)
Having found no error in ALJ
Tranguch’s determination that the opinion was entitled to limited
weight in part due to the lack of objective support, Plaintiff has
not shown that the claimed hypothetical error is cause for reversal
Plaintiff contends that the ALJ committed reversible error by
finding that she was not credible because of her activities of
(Doc. 17 at 11.)
Defendant maintains that
substantial evidence supports the ALJ’s credibility determination.
(Doc. 18 at 17.)
The Court concludes Plaintiff has not shown that
this claimed error is cause for reversal or remand.
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
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)).
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
(3d Cir. 2003).
See Holiday v. Barnhart, 76 F. App’x 479, 482
It is enough that his analysis by and large
comports with relevant provisions.
Social Security Ruling 96-7p provides the following guidance
regarding the evaluation of a claimant’s statements about his or
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
“One strong indication of the credibility of an
individual’s statements is their consistency, both internally and
with other information in the case record.”
The Social Security Regulations provide a framework under
which a claimant’s subjective complaints are to be considered.
C.F.R. § 404.1529.
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.
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.
so doing, the medical evidence of record is considered along with
the claimant’s statements.
Plaintiff again presents a very brief argument in support of
this claimed error, stating the fact that she was able to engage in
some self-care activities six months after her surgery was not
equivalent to an ability to perform substantial gainful activity on
a consistent, remunerative basis at any exertional level.
In support of this assertion, Plaintiff cites her
testimony that she continued to have significant assistance from
her friends with household chores and she needed household
modifications in order to live independently.
(Id. at 12 (citing
R. 67-70, 71-72, 75, 76-78, 80-81).)
Although Plaintiff testified that she was still receiving some
assistance until mid-January 2011, she also testified that by the
end of December 2010 she was basically able to do things on her own
with some household modifications, like bringing glassware and
dishware down to a lower level.
She was unsure when she
was able to independently go shopping and to doctors’ appointments,
estimating it was mid-December 2010 or mid-January 2011.
Plaintiff testified to ongoing pain in her abdomen (see, e.g., R.
72, 73, 80), but her subjective testimony does not show that ALJ
Tranguch’s determination is error in that he found her post-surgery
recovery period lasted less than twelve months and, with specific
citations to the record, her subjective complaints of pain were not
supported by objective findings or consistent complaints to her
Under relevant regulations and
Social Security Rulings, it was not error for the ALJ to consider
the medical evidence of record along with Plaintiff’s statements in
determining her credibility and RFC.
20 C.F.R. § 404.1529(b); SSR
Thus, Plaintiff has not shown that the ALJ’s credibility
finding is cause for reversal or remand.
D. Complaints of Pain
Plaintiff’s fourth claimed error is related to her credibility
argument and argument that the ALJ erred in his assessment of Dr.
Kurtzer’s opinion in that she relies on her testimony about her
continuing need for assistance and records post-dating the relevant
(Doc. 17 at 9, 12, 13.)
The Court has found reliance
on the cited evidence unpersuasive in those contexts and has no
basis to conclude othrerwise here.
ALJ Tranguch cited records
during the relevant time period where the claimed ongoing abdominal
pain was not mentioned or supported by objective findings.
Thus, as discussed above, the Court cannot conclude that
Plaintiff has shown the ALJ erred on the basis alleged.
Plaintiff makes the additional argument in a footnote that her
“long, strong work history” entitled her to be afforded heightened
credibility pursuant to Third Circuit caselaw.
(Doc. 17 at 13
Though not cited by the ALJ, the conclusion that Plaintiff
has not shown error is bolstered by the fact that, in the Function
Report, Plaintiff herself said that her surgery recovery period was
four to five months. (R. 139.)
(citing Taybron v. Harris, 667 F.2d 412, 415 (3d Cir. 1981);
Dobrowolsky, 606 F.2d at 409).)
Although a plaintiff with a long work history may be entitled
to consideration of that history in the assessment of her
credibility, Dobrowolsky, 606 F.2d at 409, Plaintiff cites no
authority that failure to do so is error.
As argued by Defendant,
a Plaintiff with a long work history is not automatically entitled
to have her complaints credited.
(Doc. 18 at 23 n.10 (citing
George v. Colvin, Civ. A. No. 4:13-CV-2803, 2014 WL 5449706, at *811 (M.D. Pa. Oct. 24, 2014); Passaretti v. Colvin, No. 3:15-CV-520,
2015 WL 5697510, at *10 (M.D. Pa. Sept. 24, 2015)).)
Passaretti, where the ALJ had found that the plaintiff’s claimed
limitations were not supported by the medical evidence of record,
this Court concluded the ALJ was not required to equate a long work
history with enhanced credibility.
2015 WL 5697510, at *10 (citing
Birtig v. Colvin, Civ. A. No. 14-565, 2014 WL 5410645, at *10 (W.D.
Pa. Oct. 23, 2014)).
There is no basis to find that a different
conclusion is warranted here.
For the reasons discussed above, Plaintiff’s appeal of the
Acting Commissioner’s denial of benefits (Doc. 1) is denied.
appropriate Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 14, 2016
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