Roseberry v. Commissioner of Social Security

Filing 14

MEMORANDUM (Order to follow as separate docket entry)V. ConclusionFor 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 9/14/16. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES HENRY ARNOLD ROSEBERRY, :
:CIVIL ACTION NO. 3:16-CV-371
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
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.
disability beginning on January 31, 2009.

(Doc. 1.)
(R. 10.)

He alleged
The

Administrative Law Judge (“ALJ”) who evaluated the claim, Randy
Riley, concluded in his October 3, 2014, decision that Plaintiff
remained insured through March 31, 2014, and his severe impairments
of degenerative disc disease, obesity, and depression did not alone
or in combination meet or equal the listings.

(R. 12, 13.)

He

also found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work with certain nonexertional
limitations and that, although he was unable to do past relevant
work, he was capable of performing jobs that existed in significant
numbers in the national economy.

(R. 19.)

found Plaintiff was not disabled.

ALJ Riley therefore

(Id.)

With this action, Plaintiff asserts that benefits should be

awarded or the Acting Commissioner’s decision should be remanded
for the following reasons: 1) the ALJ erred in his evaluation of
Plaintiff’s severe impairments; 2) the ALJ erred in his assessment
of Plaintiff’s credibility and his exertional and non-exertional
limitations; and 3) the ALJ did not properly consider favorable and
relevant medical and vocational evidence.

(Doc. 12 at 5-6.)

After

careful review of the record and the parties’ filings, I conclude
this appeal is properly denied.
I. Background
A.

Procedural Background
Plaintiff protectively filed for DIB on December 12, 2012.

(R. 10.)

The claims were initially denied on February 5, 2013, and

Plaintiff filed a request for a hearing before an ALJ on April 1,
2013.

(Id.)

ALJ Riley held a hearing on September 18, 2014.

(Id.)

Plaintiff, who was represented by an attorney, testified as did
Vocational Expert (“VE”) Michael J. Kibler.

(Id.)

As noted above,

the ALJ issued his unfavorable decision on October 3, 2014, finding
that Plaintiff was not disabled under the Social Security Act
during the relevant time period.

(R. 19.)

Plaintiff’s request for review of the ALJ’s decision was dated
October 31, 2014.

(R. 1.)

The Appeals Council denied Plaintiff’s

request for review of the ALJ’s decision on December 30, 2015.
1-4.)

(R.

In doing so, the ALJ’s decision became the decision of the
2

Acting Commissioner.

(R. 1.)

On March 1, 2016, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on May 4, 2016.

(Docs. 8, 9.)

brief on June 27, 2016.
July 26, 2016.

Plaintiff filed his supporting

(Doc. 12.)

(Doc. 12.)

Defendant filed her brief on

Plaintiff did not file a reply brief

and the time for doing so has passed.

Therefore, this matter is

ripe for disposition.
B.

Factual Background
Plaintiff was born on September 1, 1970, and was forty-three

years old on the date last insured.

(R. 18.)

He has limited

education and he has past relevant work as a floor technician and
palletizer.
1.

(Id.)

Impairment Evidence
Plaintiff began treating with Andrew Winand, M.D., on October

30, 2012, with records indicating that he continued to treat with
Dr. Winand at least until February 18, 2014.

(R. 199, 446.)

At

his initial visit, Plaintiff’s primary complaint was diffuse pain
which had been chronic “for the past 30 years.”

(R. 199.)

At the

time of the visit, Plaintiff was taking nothing for pain which he
noted included pain in his left hip, numbness in his legs and
diffuse myalgias.

(Id.)

He attributed the symptoms to Rocky

Mountain fever which he had at the age of ten.
3

(Id.)

Dr. Winand

recorded that Plaintiff reported that his balance had been off for
some time, he occasionally falls, and there was no clear etiology
for this.

(R. 200.)

Dr. Winand did not report any problems found

on physical examination.

(Id.)

He specifically noted that

musculoskeletal examination showed normal alignment and mobility of
the spine/ribs/pelvis, and normal gait/station with no difficulty
with ambulation.

(R. 201.)

Dr. Winand’s psychiatric evaluation

showed that Plaintiff’s judgment was intact, he was oriented to
time, place and person, his memory was intact for recent and remote
events, he had no depression, anxiety, agitation, or psychosis, and
his affect was in the appropriate range.

(Id.)

Plaintiff continued to report chronic pain on his visits with
Dr. Winand in November and December 2012.

(R. 202, 204, 206.)

Physical examinations were normal (R. 203, 205, 207) though Dr.
Winand noted at the December 11th visit that the back pain was
likely musculoskeletal in etiology and a previous CAT scan of the
abdomen showed moderate degenerative changes of the lumbar spine
(R. 204).

At the December 21st visit, Dr. Winand noted that

Plaintiff was seen for an acute visit for his back pain and that he
would be referred to Wellspan Orthopedics for it.

(R. 206.)

Plaintiff was seen on January 22, 2013, for an orthopedic
evaluation at Wellspan Orthopedics by a physician’s assistant,
Amber Thomas.

(R. 233.)

She noted that Plaintiff had “quite a

significant medical history and clinical presentation” and he

4

indicated that his back/leg pain had been constant and the episodes
have been occurring much more often.

(R. 233, 234.)

Ms. Thomas

noted that Plaintiff had “arm and leg weakness with long track
findings with positive Hoffman’s reflexes in ankle clonus[,] . . .
and an instability in his gait.”

(R. 233.)

Physical examination

also showed the following: Plaintiff was oriented but his
mood/affect was depressed; he had tenderness in the cervical
paraspinal region, trapezial regions, and cervical facet joints;
muscle guarding was present; and his range of motion was mildly
restricted.

(R. 236-37.)

A January 22, 2013, lumbar spine x-ray showed degenerative
changes in the lower lumbar spine with degenerative spondylosis,
facet arthropathy and disc space narrowing.

(R. 239.)

spondylolisthesis or abnormal motion was found.

No

(Id.)

A January 29, 2013, lumbar spine MRI showed minimal disc
disease without acute abnormalities.

(R. 260-61.)

A cervical

spine MRI of the same date showed mild degenerative spurring at C56 without neural foraminal narrowing, compression of the thecal
sac, or spinal canal stenosis.

(R. 258-59.)

A March 7, 2013, nerve conduction study was normal.

(R. 280.)

There was no evidence suggestive of a generalized neurogenic or
myopathic process affecting the peripheral nervous system, and
there was no evidence suggestive of a focal neuropathy or
radiculopathy affecting the right upper and lower extremities.
5

(R.

280.)
On July 2, 2013, Dr. Winand noted worsening depression and a
psychiatry referral.1

(R. 243.)

He prescribed Sertraline.

(Id.)

Records from Plaintiff’s August 2013 visit with Dr. Winand
show that Plaintiff did not fill this prescription and was still
feeling depressed.

(R. 273.)

Dr. Winand noted “[a]s always, he

has somewhat vague responses when asked about his medication.”
(Id.)

Plaintiff told Dr. Winand that he generally avoided crowds

and gets irritable around large numbers of people.
problems were recorded on physical examination.

(Id.)

No

(R. 275.)

In September 2013, Dr. Winand planned to try Gabapentin for
neuropathic pain in the back and lower extremities and increase
Sertraline for anxiety and depression.

(R. 270.)

Plaintiff

complained of a burning type pain throughout his spinal cord with
radiation down his legs.

(Id.)

Physical examination showed no

spinal tenderness and normal gait, though Dr. Winand noted that
Plaintiff had some difficulty getting off the exam table.

(R.

272.)
On October 28, 2013, Dr. Winand reported that Plaintiff stated
the Gabapentin did not help his back pain.
were noted on physical examination.

1

(R. 264.)

No problems

(R. 266.)

The record contains no indication that Plaintiff was seen by
a psychiatrist or psychologist for evaluation or treatment.
6

In December 2013, Plaintiff told Dr. Winand that Sertraline
had not helped his depression.

(R. 349.)

Dr. Winand noted that

neither Gabapentin nor Tramadol had helped Plaintiff’s chronic pain
in the past and narcotics were being avoided because of Plaintiff’s
previous history of overdose when he was in his twenties.

(Id.)

Dr. Winand noted that Plaintiff had a flat affect but was
conversant and appropriate.
otherwise normal.

(R. 351.)

Physical examination was

(Id.)

On December 29, 2013, Plaintiff was admitted to York Hospital
due to chest pain.

(R. 365.)

Plaintiff was dicharged the next day

with a discharge diagnosis of chest pain and headache due to
hypertensive urgency.

(Id.)

On January 7, 2014, Dr. Winand’s records indicate that
Plaintiff complained of ongoing back pain and generalized leg
weakness which Plaintiff stated went back to when he was in grade
school.

(R. 346.)

Plaintiff also stated that he occasionally

takes one Tylenol which does not help.

(Id.)

Dr. Winand noted

that the cause of Plaintiff’s back and neck pain was unclear
because workup in the past had been unremarkable.
Plaintiff also complained of worsening depression.

(R. 346.)
(Id.)

Physical

examination showed that Plaintiff had a normal gait but he had some
difficulty getting on and off the exam table because of back pain
and leg weakness.

(R. 348.)

Records from Plaintiff’s February 8, 2014, visit with Dr.

7

Winand are sparse but indicate that Plaintiff believed that Rocky
Mountain spotted fever was causing most of his problems.

(R. 446-

47.)
2.

Opinion Evidence
The record contains two opinions from Dr. Winand.

328-32.)

(R. 242,

On May 6, 2013, Dr. Winand opined that Plaintiff could

stand and walk for about two hours in an eight-hour workday and
could sit for the same period of time; he could lift and carry up
to ten pounds occasionally and could lift and carry the same amount
of weight frequently; he would need to shift between sitting and
standing/walking at will; he would need to lie down at
unpredictable times during the workday; and he would miss work on
average more than three times per month due to his conditions and
symptoms.

(R. 242.)

On December 3, 2013, Dr. Winand completed a Lumbar Spine
Residual Functional Capacity Questionnaire.

(R. 328-32.)

Dr.

Winand’s diagnosis was chronic lower back pain and his prognosis
was fair.

(R. 328.)

In answer to the question of whether his

patient was a malingerer, Dr. Winand wrote “Unknown” in
parentheses.

(Id.)

The positive objective signs identified were

reduced range of motion in forward flexion and positive straight
leg raising test at 30 degrees both right and left.2
2

(R. 329.)

Dr. Winand did not check the following exemplary objective
signs: abnormal gait, sensory loss, reflex changes, tenderness,
crepitus, swelling, muscle spasm, muscle atrophy, muscle weakness,
8

Dr. Winand answered “No” to the question of whether Plaintiff’s
impairments were reasonably consistent with the symptoms and
functional limitations described in the evaluation, explaining that
the MRI of the lumbar spine showed only minimal degenerative disc
disease.
mouth.

(Id.)
(Id.)

The only medication side effect noted was dry

Dr. Winand noted that Plaintiff’s experience of pain

and other symptoms would frequently interfere with the attention
and concentration needed to perform even simple work tasks.

(Id.)

He also opined that Plaintiff could walk three blocks without
needing a rest or experiencing severe pain; he could sit for fortyfive minutes before needing to get up; he could stand for thirty
minutes before needing to get up; in an eight-hour day he could sit
for a total of about four hours and stand/walk for less than two
hours; he would need to walk for ten minutes approximately every
thirty minutes; he would need to shift positions at will and take
unscheduled breaks several times a day for fifteen minutes; he did
not need an assistive device; he could frequently lift and carry
less than ten pounds, occasionally ten pounds, rarely twenty
pounds, and never fifty pounds; he could occasionally twist, stoop,
crouch, climb ladders and climb stairs; he would have good days and
bad days; and he would likely miss more than four days per month.
(R. 329-31.)

Dr. Winand noted that the earliest date the symptoms

impaired appetite or gastritis, weight change, and impaired sleep.
(R. 329.)
9

identified in the questionnaire applied was October 13, 2012.

(R.

331.)
3.

Hearing Testimony
At the September 18, 2014, hearing, ALJ Riley reminded

Plaintiff to remember back to how he was functioning up to his
March 31, 2014, date last insured.

(R. 31.)

Plaintiff testified

that he did not do household or yard chores, he was able to drive,
he had difficulty lifting his legs, he was unable to pick things
up, and he did not climb stairs because it was too hard.

(R. 33.)

He said he did not remember how long he could walk or stand in one
spot, he could not sit for very long before he had to get up, and
he no longer helped his friend mow lawns or shovel mulch.
35.)

(R. 33-

Plaintiff said his medications were not helping and his side

effects included dizziness, sleepiness, and pain in his legs like
numbness.

(R. 35-36.)

Plaintiff’s attorney questioned him about Rocky Mountain fever
and Plaintiff responded that he was told that not much could be
done for it but Dr. Winand was trying to get him “in with the CDC.”
(R. 37.)

When questioned about his falls, Plaintiff said they

occurred once or twice a week for his whole life and that Dr.
Winand had recommended he use an assistive device and a
chiropractor had given him a walker.

(R. 38.)

Plaintiff said he

continued to used the walker once or twice a week and he also used
a cane at times.

(R. 38-39.)

10

Plaintiff testified that he has problems thinking, he can only
sit for fifteen or twenty minutes then has to get up because his
legs go numb and hurt as do his back and neck.

(R. 41.)

He also

said he has shortness of breath when he walks a lot but he has not
received any treatment for the problem.

(R. 41-42.)

Plaintiff

testified that he only gets an hour or two of sleep per night due
to discomfort and he sometimes lies down for four to five hours
during the day.

(R. 42.)

He stated that on other days he does not

get up–-he sleeps all day because of the pain.

(Id.)

Plaintiff said he can lift no more than ten pounds and he had
difficulty using his left hand related to it having been broken.
(R. 43.)

He added that Dr. Winand thinks he might have carpal

tunnel in both wrists but he has not been tested or treated for
carpal tunnel.

(R. 43-44.)

Plaintiff added related difficulties

to be numbness and using his arms to push and pull.

(R. 44.)

Plaintiff testified that he has always had a lot of problems
with concentration and focus.

(R. 45.)

He said he has difficulty

dealing with stress and getting along with other people.

(R. 46.)

When asked by his attorney to summarize the main reason why he
was unable to do any kind of work, Plaintiff responded as follows:
“Because of my functions.

I can’t work, I can’t walk right, I

can’t lift and I’m not very smart I might as well say.”

(R. 47.)

In follow-up questioning, Plaintiff indicated he was in “slower
classes,” but he did not know if he had ever been diagnosed with a

11

learning disability.”

(Id.)

ALJ Riley asked the VE to consider a hypothetical individual
of Plaintiff’s age, education, and work experience who was able to
do light work, occasional stairs, balance, stoop, kneel, crouch,
and crawl and could never climb ladders, and who was limited to
simple, routine, repetitive tasks.

(R. 49.)

When asked whether

this hypothetical individual could do Plaintiff’s past work, the VE
responded that he could not.

(Id.)

VE Byerly added that such an

individual could perform the exemplary jobs of housekeeping
cleaner, machine feeder, and laminating machine tender.

(Id.)

If

the individual were limited to sedentary work, the VE testified
that he could do the exemplary jobs of final assembler, inspector,
and table worker.

(R. 50.)

The VE then testified that if the

individual could not engage in sustained work activity on a regular
continual basis for eight hours a day, five days a week for forty
hours per week, he could not do either his past jobs or any other
type of work.
4.

(Id.)

ALJ Decision
As noted above, ALJ Riley

2014.

(R. 10-20.)

issued his decision on October 3,

He made the following Findings of Fact and

Conclusions of Law:
1.

The claimant last met the insured status
requirement of the Social Security Acton
on March 31, 2014.

2.

The claimant did not engage in
substantial gainful activity during the
12

period from his alleged onset date of
January 31, 2009, through his date last
insured of March 31, 2014 (20 CFR
404.1571 et seq.).
3.

Through the date last insured, the
claimant had the following severe
impairments: degenerative disc disease,
obesity, and depression (20 CFR
404.1520(c)).

4.

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).

5.

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 light work as
defined in 20 CFR 404.1567(b) except the
claimant is limited to occasional
climbing stairs, balancing, stooping,
kneeling, crouching, and crawling with
never climbing ladders. The work is
limited to simple, routine, repetitive
tasks.

6.

Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on September 1,
1970 and was 43 years old, which is
defined as a younger individual age 1849, on the date last insured (20 CFR
404.1563).

8.

The claimant has a limited education and
is able to communicate in English (20
CFR 404.1564).

9.

Transferability of job skills is not an
issue in this case because the
13

claimant’s past relevant work is
unskilled (20 CFR 404.1568).
10.

Through the date last insured,
considering the claimant’s age,
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
and 404.1569(a)).

11.

The claimant was not under a disability,
as defined in the Social Security Act,
at any time from January 31, 2009, the
alleged onset date, through March 31,
2014, the date last insured (20 CFR
404.1520(g)).

(R. 12-19.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3

It is necessary for the

3

“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
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
14

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

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).

42 U.S.C. § 423(d)(2)(A).
15

As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs that existed in significant numbers in
the national economy.

(R. 19.)
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
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
16

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

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
17

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
precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

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

See, e.g., Albury v. 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
18

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
Plaintiff asserts that benefits should be awarded or the
Acting Commissioner’s decision should be remanded for the following
reasons: 1) the ALJ erred in his evaluation of Plaintiff’s severe
impairments; 2) the ALJ erred in his assessment of Plaintiff’s
credibility and his exertional and non-exertional limitations; and
3) the ALJ did not properly consider favorable and relevant medical
and vocational evidence.
A.

(Doc. 12 at 5-6.)

Step Two and Step Three Analyses
Plaintiff’s first claimed error relates to ALJ Riley’s step

two and step three analyses, stating that he did not properly
evaluate the allegedly disabling impairments of uncontrolled
hypertension, diverticulitis, chronic pain syndrome, and Rocky
Mountain spotted fever and did not properly consider wether the
Plaintiff’s impairments met or equaled the listings.
(citing R. 7-51, 198-449).)

(Doc. 12 at 7

Regarding step two, Defendant

maintains that the ALJ’s step two analysis is supported by
substantial evidence.

(Doc. 13 at 11.)

Alternatively, Defendant

asserts that any claimed error would be harmless because the ALJ
proceeded beyond step two.

(Id. at 15.)

The Court concludes

Plaintiff has not shown that this claimed step two error is cause
for reversal or remand because, even if credited, the error would
19

be harmless.
If the sequential evaluation process continues beyond step
two, a finding of “nonsevere” regarding a specific impairment at
step two may be deemed harmless if the functional limitations
associated with the impairment are accounted for in the RFC.
Salles v. Commissioner of Social Security, 229 F. App’x 140, 145
n.2 (3d Cir. 2007) (not precedential) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).

In other words,

because the outcome of a case depends on the demonstration of
functional limitations rather than a diagnosis, where an ALJ
identifies at least one severe impairment and ultimately properly
characterizes a claimant’s symptoms and functional limitations, the
failure to identify a condition as severe is deemed harmless error.
Garcia v. Commissioner of Social Security, 587 F. App’x 367, 370
(9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007)); Walker v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006)
(not precedential) (“Mere presence of a disease or impairment is
not enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.
No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Functional limitations that must be accounted for are only
20

those that are credibly established.

Rutherford, 399 F.3d at 554.

Case law and regulations4 address when a limitation is credibly
established.
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. §
416.](c)(3)).
399 F.3d at 554.
Given the relevant legal framework, a plaintiff must do more
than point to subjective complaints to show that an ALJ’s
determinations regarding limitations are not based on substantial

4

Rutherford specifically identifies 20 C.F.R. §§ 416.945,
929(c) and 927, as relevant to the inquiry. 399 F.3d at 554.

21

evidence.

Plaintiff, who bears the burden of showing severity at

step two and listing level impairment at step three, see, e.g.,
Bowen v. Yuckert, 482 U.S. 137, 145 n.5 (1987), has not met his
burden here with his broad citation to evidence of record in
support of his claimed limitations.
51, 198-449).)

(Doc. 12 at 7, 8 (citing R. 7-

In addition to the citation of the entire ALJ

decision and hearing testimony (R. 7-51) and all of the medical
evidence (R. 198-449), Plaintiff points to his Function Report
(Doc. 12 at 8 (citing R. 138-47)) to support his claimed functional
limitations.

In support of his assertion that ALJ Riley

mischaracterized medical evidence of record, the only specific
citations to record evidence, provided without explanation, are
from one visit to Wellspan Orthopedics on January 22, 2013 (R. 23239), a May 6, 2013, Medical Opinion Re: Ability To Do Work-Related
Activities completed by Dr. Winand (R. 242), a July 2, 2013, office
visit note from Dr. Winand (R. 243), and a variety of test results
dated January 29, 2013, and February 1, 2013 (R. 303-12).

(See

Doc. 12 at 9.)
At the January 22, 2013, Wellspan Orthopedics visit, certain
limitations were found on musculoskeletal physical examination,
including gait instability, and x-rays showed some degenerative
changes in the lumbar spine.

(R. 232-39.)

Plaintiff does not show

error in the ALJ’s assessment/consideration of this evidence and
the Court finds none.

ALJ Riley found Plaintiff’s degenerative

22

disc disease to be severe and incorporated associated credibly
established limitations in his RFC.

(R. 12, 14.)

In his decision,

he specifically cited other musculoskeletal examinations which were
normal and examination notations indicating that Plaintiff had a
normal gait and ambulation.
19F/9, 24F/3).)

(R. 16 (citing Exs. 1F/4, 15F/9,

Further, Plaintiff’s broad assertions regarding

other impairments being severe and other limitations being credible
are not supported by this record evidence.
The results of the various tests conducted on January 29,
2013, and February 1, 2013 (R. 303-12), do not support any
additional limitations, especially in that the MRI of the lumbar
spine showed only “minimal degenerative disc disease, without acute
abnormalities” (R. 311) and the cervical spine MRI showed mild
degenerative spurring at C5-6 without neural foraminal narrowing,
compression of thecal sac or spinal canal stenosis (R. 309).
While Dr. Winand’s May 6, 2013, opinion shows greater
limitations than those found by ALJ Riley (R. 242), Plaintiff’s
citation to this evidence does not show step two or step three
error in that the RFC analysis explains the limited weight assigned
to the opinion.

(R. 17-18.)

Dr. Winand’s July 2, 2013, Clinical Summary indicates only
that Plaintiff was seen for follow-up of chronic illnesses, that
the health issues reviewed were depression, hypertension, and
chronic pain syndrome and that Plaintiff was referred to psychiatry

23

for worsening depression.

(R. 243.)

This record referenced by

Plaintiff points to no specific limitations related to the
identified health issues or others.

(Id.)

Based on this review of specific evidence cited by Plaintiff,
the Court concludes he has not shown that ALJ Riley was obligated
to find all claimed limitations credibly established.

As discussed

by ALJ Riley, such limitations are not uncontradicted and/or
objectively supported and, therefore, pursuant to Rutherford, 399
F.3d at 554, he was able to reject such limitations.

In this

context, even if the Court assumes arguendo that there is merit in
Plaintiff’s severity argument, Plaintiff has not shown that his
claimed step two error is cause for reversal or remand.
With his very cryptic step three listings argument supported
by citation to all medical evidence, the entire ALJ decision, the
entire hearing transcript, and his Function Report (Doc. 12 at 78), Plaintiff has not met his burden of showing the ALJ erred on
the broad basis alleged.
B.

Residual Functional Capacity Assessment
Plaintiff’s assertion that ALJ Riley erred in his credibility

and limitations assessments as well as in his evaluation of Dr.
Winand’s opinion (Doc. 12 at 9-12) are all attacks on the ALJ’s RFC
assessment.

As with Plaintiff’s preceding arguments, citation to

the record is, for the most part, extremely broad and general,
particularly in relation to Plaintiff’s credibility.
24

(See Doc. 12

at 9-11.)

Thus, rather than properly developed and supported

argument, Plaintiff’s approach renders his assertions merely
conclusory.

As it is not the Court’s responsibility to comb

through the record seeking the factual underpinnings of a
plaintiff’s claims, particularly where the plaintiff is represented
by counsel, further discussion of such broad brush claims is not
warranted.
Plaintiff’s assertion that ALJ Riley did not give proper
weight to the opinions of the treating physician is accompanied by
more specific citation to the record insofar as Plaintiff contends
the ALJ’s focus on Dr. Winand’s comment regarding malingering was
improper.

(Doc. 12 at 12 (citing R. 242, 328-32).)

Therefore,

review of this aspect of Plaintiff’s claimed error is appropriate.
Defendant maintains that substantial evidence supports the ALJ’s
evaluation of Dr. Winand’s opinion.

(Doc. 13 at 25.)

The Court

concludes Plaintiff has not shown that this claimed error is cause
for reversal or remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.

See, e.g.,

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

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely

25

accepted in the Third Circuit.

Mason v. Shalala, 994 F.2d 1058 (3d

Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
opinion: “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported 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.”

5

20 C.F.R. § 404.1527(c)(2).5

“A cardinal principle

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
26

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.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
ALJ Riley set out the following rationale:
The undersigned gives little weight to the
opinion because it appears to rely on the
subjective reporting of the claimant, which
the undersigned found not fully credible, and
is inconsistent with the medical record.
Specifically, the objective observations and
examination findings found generally mild to
no more than moderate difficulties. The
claimant had normal strength with mild
decrease in range of motion and normal gait
with occasional abnormality. The
radiographic studies found no more than
minimal degenerative changes, and the
claimant received routine and conservative

give your treating source's opinion.
27

care. Additionally, the undersigned gives
little weight to the assessments because Dr.
Winand hand wrote “unknown” to the yes/no
question of, “Is [the claimant] a
malingerer?” (Exhibits 21F/1 and 22F/1),
which affects the basis of the opinion.
Moreover, Dr. Winand’s opinion appears to
rest at least in part on an assessment of
orthopedic impairments outside the doctor’s
area of expertise, which is internal
medicine.
(R. 51-52.)
ALJ Riley’s review of Dr. Winand’s opinion may not be a model
of thoroughness when considered in isolation.

(R. 17-18.)

However, in the circumstances and context presented, the Court
concludes Plaintiff has not shown error requiring reversal or
remand.

While ALJ Riley did not cite to specific inconsistent

evidence or radiographic studies in his opinion analysis (R. 1718), he reviewed and explained the varied findings in the medical
evidence (R. 15-16).

“[G]enerally mild to no more than moderate

difficulties[,] near normal strength with mild decrease in range of
motion and normal gait with occasional abnormality” are all
findings specifically cited in ALJ Riley’s review of evidence in
the RFC portions of his decision.

(R. 16 (citing Exs. 1F/4, 5F,

5F/3, 5F/5-8, 15F/9, 26F, 24F/3 and 27F/7).)

Similarly,

radiographic studies generally referenced in the opinion analysis
(R. 18) are specifically reviewed and cited within the RFC
analysis.

(R. 16 (citing (Exs. 4F/22, 5F/8, 13F/5, 13F/7-8, 16F/3,

16F/8-9, 16F/9-10, 17F/3, 17F/7-8, 17F/8, 17F/10, 18F/5-6, 18F/7-8,

28

19F/5-6, 19F/7-8).)
Plaintiff does not assert that ALJ Riley misrepresented the
evidence specifically cited in the RFC portion of his decision.6
Rather, he generally maintains without citation that Dr. Winand’s
opinions “were consistent with his actual course of care” and the
ALJ assigned little weight to Dr. Winand’s opinions “without proper
justification.”

(Doc. 12 at 11.)

As previously noted, Plaintiff’s only assertion accompanied by
specific citation to the record involves the alleged impropriety of
the ALJ’s reliance on Dr. Winand’s statement that it was “unknown”
whether Plaintiff was a malingerer.
328-32).)

(Doc. 12 at 12 (citing R. 242,

Plaintiff contends the ALJ should have reconciled this

opinion directly with Dr. Winand or with another opinion from a
consultative examiner.

(Doc. 12 at 12.)

In certain circumstances, the duty to develop the record may
entail a duty to recontact a medical source to obtain additional
information, such as when the source’s report “contains a conflict
or ambiguity that must be resolved,” “does not contain all the
necessary information, or does not appear to be based on medically
acceptable clinical or laboratory diagnostic techniques.”

Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 205 (3d Cir. 2008) (citing 20

6

Plaintiff generally states in an earlier section of his
brief that medical evidence “was not accurately reported by ALJ
Riley” (Doc. 12 at 9) but, as discussed previously in the text,
this type of broad-brush assertion is merely unsupported conclusion
rather than valid criticism.
29

C.F.R. § 416.912(e)(1) and 20 C.F.R. § 404.1512(e)(1)).
inadequacy of the record that triggers the duty.

It is the

529 F.3d at 205.

The Court finds the ALJ was under no such obligation here
because it is clear that after treating Plaintiff for over two
years Dr. Winand was unable to determine whether Plaintiff was a
malingerer and no evidence suggests that recontacting him would
provide clarity.7

Further, in that Dr. Winand, the treating

physician, expressed that he did not know whether Plaintiff was a
malingerer, the ALJ was entitled to consider the comment and no
evidence suggests that a one-time consultative examination or
further review would negate it.8
7

Though not cited by the ALJ and, therefore, not a basis for
the Court’s conclusion, see, e.g., Gross v. Comm’r of Soc. Sec.,
No. 15-2764, ---Fed. App’x—--, 2016 WL 3553259, at *4 (3d Cir. June
30, 2016) (court should not supply reasoned basis for ALJ’s
decision that ALJ has not given), our determination is bolstered by
the fact that, in Dr. Winand’s December 3, 2013, opinion, he
answered “no” to the question of whether his patient’s impairments
were reasonably consistent with the symptoms and functional
limitations described in the evaluation. (R. 329.) He explained
that “MRI of the lumbar spine showed only minimal degenerative disc
disease.” (Id.)
8

Plaintiff does not develop an argument that this is a case
where a consultative examination should have been ordered pursuant
to the ALJ’s duty to develop the record, a duty that does not
necessarily come into play where “there was sufficient evidence in
the medical records for the ALJ to make her decision.” Moody v.
Barnhart, 114 F. App’x 495, 501 (3d Cir. 2004) (not precedential);
see also Griffin v. Commissioner of Social Security, 303 F. App’x
886, 890 n.5 (3d Cir. 2009) (not precedential). If the record is
inadequate for proper evaluation of the evidence, the ALJ’s duty to
develop the record is triggered. See, e.g., Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001). Without more, there is no
reason to find the duty was triggered here.
30

Plaintiff has not shown the ALJ erred in his assessment of Dr.
Winand’s opinion on the specific bases alleged and has not shown
that the opinion was “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and . . . not
inconsistent with the other substantial evidence,” such that it
would be entitled to controlling weight, 20 C.F.R. §
404.1527(c)(2).

Therefore, this claimed error is not cause for

reversal or remand.
C.

Vocational Evidence
Plaintiff’s final claimed error is that the first two

hypothetical questions posed to the VE did not accurately reflect
Plaintiff’s limitations and the ALJ improperly did not credit the
third hypothetical question which posed limitations similar to
those found by Dr. Winand.

(Doc. 12 at 14.)

Plaintiff relies on

his previous arguments that ALJ Riley did not give proper weight
and credit to the significant medical/vocational evidence in the
case and did not properly assess Plaintiff’s RFC.9

(Id.)

Because

Plaintiff’s related inference that ALJ Riley’s failure to give
clear weight to any other medical opinion renders his RFC error
(Doc. 12 at 12) is not cause for reversal or remand. This Court
has found no such requirement within this Circuit. See, e.g.,
Nirka v. Colvin, No. 3:15-CV-2409, 2016 WL 3077359, at *13 (M.D.
Pa. June 1, 2016) (citations omitted).
9

Plaintiff specifically refers to his “prior history of
paralysis due to a tick bite and Rocky Mountain spotted fever,
resulting in his inability to ambulate effectively, his
interference with concentration and completing tasks due to pain
and other factors relative to his impairments, etc.” (Doc. 12 at
14.) The record review set out in the text shows that only
31

the Court has determined that Plaintiff has not shown that these
claimed errors are cause for reversal or remand, this claimed error
also fails.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal of the
Acting Commissioner’s denial of benefits (Doc. 1) is denied.

An

appropriate Order is filed simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: September 14, 2016

Plaintiff himself attributed symptoms to Rocky Mountain spotted
fever which he had at the age of ten. (See, e.g., R. 199, 246-47.)
Born on September 1, 1970, Plaintiff was thirty-eight on the
alleged disability onset date and had a work history which included
floor technician and palletizer. (R. 18.) Thus, Plaintiff had
worked for many years with the symptoms allegedly associated with
Rocky Mountain spotted fever, including diffuse pain which he said
in October 2012 had been chronic “for the past 30 years.” (R.
199.) It is noteworthy that gait problems referenced frequently by
Plaintiff were noted on examination on only one occasion (R. 233),
and the claimed chronic nature of the problem is contradicted by
normal gait findings on most physical examinations (see, e.g., R.
201 272, 346). Furthermore, in identifying applicable “positive
objective signs” from the list provided in the December 3, 2013,
form opinion, Dr. Winand did not check “abnormal gait.” (R. 329.)
32