O'Toole v. Colvin
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/26/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
: Civil Action No. 3:16-01663
NANCY BERRYHILL ,
Acting Commissioner of
The above-captioned action is one seeking review of a decision of the
Acting Commissioner of Social Security (“Commissioner”), denying Plaintiff
Patrick O’Toole’s (“O’Toole”) application for Social Security Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under
Title II and Title XVI, respectively. For the reasons set forth below, the Court
will affirm the Commissioner’s decision.
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted for Carolyn W. Colvin, Acting Commissioner of Social Security as
the defendant in this suit.
paid social security taxes. The last date that a claimant meets the
requirements of being insured is commonly referred to as the “date last
insured.” It is undisputed that O’Toole met the insured status requirements of
the Social Security Act through March 31, 2013. (Tr. 13).2 In order to establish
entitlement to disability insurance benefits, O’Toole was required to establish
that he suffered from a disability on or before that date. 42 U.S.C.
§423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a); see Matullo v. Bowen, 926
F.2d 240, 244 (3d Cir. 1990).
SSI is a federal income supplement program funded by general tax
revenues (not social security taxes). It is designed to help aged, blind or other
disabled individuals who have little or no income. Insured status is irrelevant
in determining a claimant’s eligibility for supplemental security income
O’Toole protectively applied for DIB and SSI on April 3, 2013, alleging
disability beginning July 15, 2007, which he later amended to December 20,
2012. (Tr. 11, 26, 146-57). His claims were initially denied on August 21,
2013. (Tr. 90-97). O’Toole requested a hearing before the Administrative Law
Judge (“ALJ”) Office of Disability and Adjudication and Review of the Social
Security Administration, and one was held on November 7, 2014. (Tr. 23-63,
98-100). At the hearing, O’Toole was represented by counsel, and a
References to “Tr. __” are to pages of the administrative record filed
by the Defendant as part of the Answer (Docs. 8 and 9) on October 13, 2016.
vocational expert testified. (Tr. 23-63). On December 3, 2014, the ALJ issued
a decision denying O’Toole’s applications. (Tr. 8-22). O’Toole filed a request
for review with the Appeals Council, which was denied. (Tr. 1-5). Thus, the
ALJ’s decision stood as the final decision of the Commissioner.
O’Toole filed a complaint with this Court on August 10, 2016. (Doc. 1).
The Commissioner filed an answer on October 13, 2016. (Doc. 8). After
supporting and opposing briefs were submitted (Docs. 10, 11, 12), the appeal3
became ripe for disposition.
O’Toole appeals the ALJ’s determination on three grounds: (1)
substantial evidence does not support the ALJ’s step two finding that some
of his medical conditions were not severe; (2) substantial evidence does not
support the ALJ’s Residual Functional Capacity (“RFC”) assessment; and (3)
substantial evidence does not support the ALJ’s credibility evaluation.
II. STANDARD OF REVIEW
When considering a social security appeal, the Court has plenary review
of all legal issues decided by the Commissioner. See Poulos v. Comm’r of
Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008). However, our review of the Commissioner’s
Under the Local Rules of Court, “[a] civil action brought to review a
decision of the Social Security Administration denying a claim for social
security disability benefits” is “adjudicated as an appeal.” M.D. Pa. Local Rule
findings of fact pursuant to 42 U.S.C. §405(g) is to determine whether those
findings are supported by “substantial evidence.” Id. The factual findings of
the Commissioner, “if supported by substantial evidence, shall be conclusive
. . . .” 42 U.S.C. §405(g). “Substantial evidence does not mean a large or
considerable amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Johnson, 529 F.3d at 200 (3d Cir. 2008) (quoting Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999)) (internal quotations and citations omitted).
Substantial evidence has been described as more than a mere scintilla of
evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211,
1213 (3d Cir. 1988). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900, 901 (3d
Cir. 1995)) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The United States Court of Appeals for the Third Circuit
[O]ur 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 [Commissioner] 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.
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Kent v. Schweiker,
710 F.2d 110, 114 (3d Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183 (3d
Cir. 1986)). Therefore, a court reviewing the decision of the Commissioner
must scrutinize the record as a whole. Id. (citing Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981)).
III. SEQUENTIAL EVALUATION PROCESS
The plaintiff must establish that there is some “medically determinable
basis for an impairment that prevents him from engaging in any substantial
gainful activity for a statutory twelve-month period.” Fargnoli v. Massanari, 247
F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer, 186 F.3d at 427) (internal
quotations omitted). “A claimant is considered unable to engage in any
substantial gainful activity ‘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 . . . .’ ” Fargnoli, 247 F.3d at 39 (quoting 42 U.S.C.
§423(d)(2)(A)). The Commissioner follows a five-step inquiry pursuant to 20
C.F.R. §404.1520 to determine whether the claimant is disabled. In Plummer,
the Third Circuit set out the five-steps:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. 20
C.F.R. §[404.]1520(a). If a claimant is found to be engaged in
substantial activity, the disability claim will be denied. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987) . . . . In step two, the
Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. §404.1520©. If the claimant
fails to show that her impairments are “severe,” she is ineligible
for disability benefits. In step three, the Commissioner compares
the medical evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any gainful
work. 20 C.F.R. §404.1520(d). If a claimant does not suffer from
a listed impairment or its equivalent, the analysis proceeds to
steps four and five. Step four requires the ALJ to consider
whether the claimant retains the residual functional capacity to
perform her past relevant work. 20 C.F.R. §404.1520(d). The
claimant bears the burden of demonstrating an inability to return
to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
If the claimant is unable to resume her former occupation, the
evaluation moves to the final step. At this stage, the burden of
production shifts to the Commissioner, who must demonstrate the
claimant is capable of performing other available work in order to
deny a claim of disability. 20 C.F.R. §404.1520(f). The ALJ must
show there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with
her medical impairments, age, education, past work experience,
and residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.
See 20 C.F.R. §404.1523. The ALJ will often seek the assistance
of a vocational expert at this fifth step. See, [sic] Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984).
Plummer, 186 F.3d at 428.
O’Toole was born on January 28, 1970, has a limited education, and is
able to communicate in English. (Tr. 18). In the past, O’Toole worked as a
machine feeder, commercial cleaner, bakery helper, laborer stores, and as a
kitchen helper. (Tr. 17-18). O’Toole has not engaged in substantial gainful
activity since the alleged amended onset date of disability, December 12,
2012 (Tr. 13).
A. O’Toole’s Impairments
O’Toole has a history of type 1 diabetes mellitus, chronic renal
insufficiency, and hyperlipidemia. (Tr. 726). He received medical care for
these conditions at Milton S. Hershey Medical Center (“Hershey”). (Tr. 247717, 726-975). Deborah Shepherd, MSN, CRNP, of Hershey’s Endocrinology
Department, reported on December 4, 2012, that O’Toole’s diabetes improved
with the help of a dietician. (Tr. 644). This was an improvement since O’Toole
previously reported that he was sick of taking care of his diabetes. (Tr. 645).
Nurse Shepherd prescribed management with Humalog, Insulin, and glucose
tablets. (Tr. 645).
On December 20, 2012, O’Toole saw his primary care physician,
Munima Nasir, M.D. (Tr. 639-40). Dr. Nasir noted that O’Toole had been
“extremely poorly compliant with his care,” however, he “seem[ed] to be doing
better” since reestablishing endocrinological care. (Tr. 639). Dr. Nasir noted
his history of type 1 diabetes mellitus with diabetic nephropathy, neuropathy
and retinopathy. (Id.). O’Toole stated that he was doing fairly well and denied
acute issues. (Id.). His physical examination was unremarkable and Dr. Nasir
recommended follow-up with Endocrinology. (Tr. 639-40).
A January 14, 2013 nutrition outpatient note provides that O’Toole is
“very happy with how things have worked since he is doing intense carb
counting,” and that he “loves” his insulin pens. (Tr. 634). It was further noted
that he lives with his parents, is a landscaper, and was advised to continue
to complete food and glucose records and to bring with him to his next
appointment on February 11, 2013. (Id.). His follow up nutrition appointment
in February again noted that he loves his insulin pens, but that his glucose
logs and food records were incomplete and he has not been landscaping
because he has been ill and very tired. (Tr. 631).
O’Toole had a consultation for chronic kidney disease with Christin
Spatz, M.D. on February 18, 2013. (Tr. 623). Dr. Spatz noted that O’Toole
has suffered from diabetes type 1 since the age of 20. (Id.). She also
indicated other medical complications of nephropathy, retinopathy and
neuropathy. (Id.). His symptoms included fatigue, feeling cold, left-sided pain
and reduced appetite. (Id.). Dr. Spatz noted that O’Toole had very poorly
controlled diabetes and was lost to follow-up with endocrinology due to
noncompliance, but that he has recently reestablished with endocrinology and
has continued to improve his blood sugar control. (Id.). She also noted that
he was remarkable for hyperlipidemia, but does not currently take his
cholesterol medicine. (Id.). With regard to his chronic kidney disease care, Dr.
Spatz noted that his renal function has remained stable for the last 3 years
but that he does have significant proteinuria, and explained to him the
importance of blood sugar control in preserving his renal function. (Tr. 624).
On March 8, 2013, O’Toole presented to the Hershey Medical Center
emergency room with complaints of nausea with vomiting of dark emesis after
arrival to the emergency room. (Tr. 606). A CT scan of his abdomen revealed
no evidence of acute intrathoracic, intra-abdominal, or intrapelvic pathology,
but greater than expected calcific atherosclerosis for his age. (Tr. 607).
O’Toole was discharged on March 10, 2013 with a diagnosis of upper
gastrointestinal bleed, anxiety/depression, hyperlipidemia, and diabetes, type
1. (Tr. 610).
On April 14, 2013, O’Toole again presented to the Hershey Medical
Center emergency room with complaints of left upper extremity paresthesia,
as well as symptoms of blurry vision and left arm/shoulder pain. (Tr. 585). The
examining physician diagnosed transient ischemic attack (TIA) and referred
him to neurology. (Tr. 581-85). O’Toole’s mental status, cranial nerves, motor
strength and tone, reflexes, sensation, and coordination were normal. (Tr.
582, 586-86). A head CT and brain MRI/MRA revealed no acute pathology
(Tr. 581), and he refused admission for further work up, including a neck
MRA. (Tr. 581). He was discharged in improved condition on the same day.
The next day, April 15, 2013, O’Toole was seen by Dr. Spatz for a follow
up for his chronic kidney disease. (Tr. 569). Dr. Spatz noted that O’Toole did
not complete the majority of his testing that she requested. (Id.). O’Toole told
Dr. Spatz that he felt frustrated by his medical care, and that he could not stay
very long for his appointment because he had to help his brother move. (Id.).
Dr. Spatz noted that O’Toole has not been very adherent to his medications
and is certainly not aware of the gravity of his medical conditions. (Id.).
Physical examination revealed normal findings, and Dr. Spatz reported that
O’Toole’s renal function remains stable and that his hypertension is well
controlled. (Tr. 570). Dr. Spatz noted that O’Toole’s medical conditions
include diabetes mellitus and hypertension, as well as chronic kidney disease
state III secondary to diabetic nephropathy. (Id.). A nutrition therapy visit on
that same day also indicated that O’Toole had not been keeping his glucose
or food records. (Tr. 577).
On August 5, 2013, O’Toole presented to Dr. Nasir, primarily for a follow
up visit. (Tr. 664). Dr. Nasir provides that O’Toole follows in and out with his
diabetic control; that at any time, he is well controlled and does really well and
knows how to do it, however, O’Toole admits that over the course of the last
two or three months, he has fallen off of his regimen again and has not been
taking meals appropriately. (Tr. 664). O’Toole complains of feeling extremely
fatigued and tired with no energy. (Id.). He complains of burning sensation in
his lower extremities and stated that he had low vitamin D as well as anemia
but had not been taking his medications because he could not afford it. (Id.).
Dr. Nasir’s diagnosis was diabetes mellitus type 1, uncontrolled; persistent
fatigue and tiredness; vitamin D deficiency; and peripheral neuropathy. (Tr.
664-65). Dr. Nasir provided that the cause behind O’Toole’s fatigue and
tiredness is from his uncontrolled blood sugar levels along with vitamin D
deficiency, and encouraged O’Toole to get back on his regimen. (Tr. 665). Dr.
Nasir also provided that the burning sensation in O’Toole’s feet is associated
with his diabatic neuropathy and that with better control of his blood sugars
will aid in better control of his symptoms. (Id.).
On October 10, 2013, O’Toole had another follow up visit with Dr. Nasir.
(Tr. 949). Dr. Nasir’s notes again provide that O’Toole has periods where he
does very well with his diabetic care and his diabetes is fairly well controlled;
however, at other times, he is totally noncompliant and due to this
noncompliance, his chronic disease is not well managed. (Id.). Dr. Nasir notes
that at this office visit, O’Toole again complained of fatigue, nausea, feeling
down and depressed and excessive sleep. (Id.). Dr. Nasir provided that
O’Toole had not had routine follow up with the endocrinology clinic, and that
at his last visit, Dr. Nasir counseled O’Toole extensively, asking him to go
back on his diabetic regimen to start taking better care of his diabetes. (Id.).
Dr. Nasir notes that despite O’Toole acknowledging that his food portion sizes
are too large for him, and that he is consuming a large amount of
carbohydrates with lots of bread, he continues to do it. (Id.).
O’Toole’s only other complaint at his October 10, 2013 visit was
decreased range of motion of his left shoulder. (Tr. 950). Dr. Nasir referred
him to physical therapy. (Id.).
On October 25, 2013, O’Toole was seen by Ms. Shepherd at the
Endocrinology Clinic for management of his type 1 diabetes, uncontrolled. (Tr.
940). Ms. Shepherd provided that she had a long discussion with O’Toole
about his choice to continue with poor control, although educated about the
risk factors. (Id.). O’Toole stated that he is able to control his blood sugars
when he wants to, but blames the poor control on being sedentary and eating
poorly. (Id.). Ms. Shepherd’s notes also indicate that O’Toole is working as a
landscaper. (Id.). She ordered him a glucagon emergency kit. (Tr. 941).
O’Toole’s physical therapy note on November 4, 2013, indicates left
shoulder adhesive capsulitis and was ordered 8 weeks of physical therapy to
address range of motion, stability, flexibility, and functional ability deficits. (Tr.
Dr. Nasir again saw O’Toole for a follow up appointment on November
18, 2013. (Tr. 909). Dr. Nasir notes that since his last visit, O’Toole has
become more compliant with his care and that he has been receiving physical
therapy for his shoulder, with slight improvement in range of motion. (Tr. 90910). On February 24, 2014, Dr. Nasir again saw O’Toole for a follow up
appointment. (Tr. 902). O’Toole reported improved diabetic control,
compliance with his medications for hypertension and hyperlipidemia, and
significant improvement in left frozen shoulder symptoms. (Id.).
B. Residual Functional Capacity Assessments
On August 20, 2013, Gordon Arnold, M.D., a state agency medical
consultant, assessed O’Toole’s functional abilities. (Tr. 70-87). Dr. Arnold
found that O’Toole was able to lift and carry ten pounds occasionally and less
than ten pounds frequently. (Tr. 73, 82). He opined that O’Toole could stand
and walk for two hours and sit for six hours in an eight-hour workday, and
required the ability to alternate sitting and standing. (Id.). Dr. Arnold opined
that O’Toole had no limitation in his ability to push or pull other than indicated
by his ability to lift and carry. (Id.). He further found that O’Toole was unable
to climb ladders, ropes, and scaffolds, or crawl, but was able to climb ramps
and stairs occasionally, and balance, stoop, kneel, and crouch occasionally.
(Tr. 74, 83). Dr. Arnold further opined that O’Toole had no manipulative,
visual, or communicative limitations, and that he should avoid concentrated
exposure to extreme temperatures and hazards, such as machinery or
heights. (Tr. 74-76; 83-85).
The record also contains a letter from Annette Durica, MA, regarding
O’Toole’s alleged psychiatric health. (Tr. 976). Ms. Annette noted that O’Toole
has the diagnostic criteria of an autism spectrum disorder, paranoid
personality disorder, and schizotypal personality disorder with difficulty
recognizing social cues, impaired conflict resolution abilities, avoidance of
others, and social awkwardness, poor impulse control, and irritability. (Id.).
She further provides that even a solitary sort of employment will be difficult for
him because he has no education or skills and the social interaction required
to acquire skills is probably beyond his social capability. (Id.).
C. The Administrative Hearing
On November 7, 2014, an administrative hearing was conducted. (Tr.
23-63). At the hearing, O’Toole testified that he has swelling in his ankles and
needs to elevate his legs. (Tr. 30-31). He further testified that he is able to
stand for forty minutes to one hour, walk for twenty to forty minutes, lift and
carry ten to fifteen pounds daily and up to thirty pounds without pain. (Tr. 3033). With regard to his insulin, O’Toole acknowledged that he is supposed to
check his sugars four times a day, but does not always comply. (Tr. 33-34).
After O’Toole testified, Michael Kibbler, an impartial vocational expert,
was called to give testimony. (Tr. 49, 57). The ALJ asked Mr. Kibbler to
assume a hypothetical individual with O’Toole’s age, education, and work
background, who could perform light-duty work, except he could stoop, kneel,
crouch, crawl, and climb stairs occasionally; he should avoid hazards, such
as unprotected heights and temperature extremes; and he could stand for one
hour before needing to sit for up to one hour before needing to stand again
for up to one hour, with this continuing throughout the workday. (Tr. 57-61).
Mr. Kibler opined that such a person could not perform O’Toole’s past
work, but could make a vocational adjustment to jobs existing in significant
numbers in the national economy, including the representative light
occupations of small products assembler and electrical accessories
assembler, and the sedentary jobs of table worker and final assembler. (Id.).
Mr. Kibler further opined that all of the identified jobs could be performed if the
hypothetical person were further limited to only occasional interactions with
members of the public, coworkers, and supervisors. (Tr. 61).
The ALJ went through each step of the sequential evaluation process
and found that: (1) O’Toole had not engaged in substantial gainful activity
since December 20, 2012, the alleged amended onset date; (2) O’Toole had
the severe impairments of diabetes mellitus with diabetic neuropathy and
stage III kidney disease; (3) O’Toole’s impairments did not meet or equal a
listed impairment; and (4) O’Toole could not perform his past relevant work,
but that he could perform light work with several limitations. (Tr. 13-15).
Specifically, in addressing O’Toole’s RFC, the ALJ provided the following
[O’Toole] is able to stoop, kneel, crouch, crawl, and
climb stairs occasionally. [He] should avoid hazards,
such as unprotected heights, and temperature
extremes. [He] is limited to standing for one hour
before needing to sit for up to one hour before
needing to stand again for up to one hour, with this
continuing throughout the workday.
A. Step Two Evaluation
O’Toole contends that the ALJ committed reversible error by failing to
hyperlipidemia, back pain, psychological conditions, shoulder adhesive
capsulitis, and TIA as severe impairments. The Commissioner maintains that
O’Toole’s argument should be rejected for several reasons, namely, the ALJ’s
explanation is supported by substantial evidence; the fact that the ALJ did not
identify additional conditions as severe is legally irrelevant because the ALJ
identified other severe impairments at step two and proceeded through the
remaining steps of the sequential evaluation process; and lastly, O’Toole has
not shown that the ALJ’s failure to identify his other conditions as severe
harmed the outcome of his case.
“Because the outcome of a case depends on the demonstration of
functional limitations, 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.” Keys v. Colvin, Civ. No. 3:14-CV-191, 2015 WL 1275367 at *11 (M.D.
Pa. Mar. 19, 2014) (citing Garcia v. Comm’r of Soc. Sec., 587 F. App’x 367,
370 (9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007);
Burnside v. Colvin, Civ. No. 3:13-CV-2554, 2015 WL 268791 at *13 (M.D. Pa.
Jan. 21, 2015). Thus, when a plaintiff claims a step two error based on an
ALJ’s failure to properly address an alleged impairment, the crux of the
analysis is whether the ALJ considered the associated symptoms and
functional limitations in his RFC analysis. See, e.g., Awad v. Colvin, Civ. No.
3:14-CV-1054, 2015 WL 1811692 at *13 (M.D. Pa. Apr. 21, 2015).
The ALJ identified O’Toole’s diabetes mellitus with diabetic neuropathy
and stage III kidney disease as severe imperilments. With regard to O’Toole’s
non-severe impairments, the ALJ provided that:
The record indicates that the claimant has a history of
diabetic retinopathy. The claimant underwent surgical
treatment for retinopathy and cataracts. In October
2010, the claimant’s corrected right eye visual acuity
was 20/40 and 20/20 in his left eye. On March 20,
2013 the claimant’s right eye and left eye visual acuity
without correction was 20/25-2 (Exhibit 1F). The
record also indicates that the claimant has a history of
left knee dysfunction and underwent a removal of his
left knee hardware. However, the record contains no
evidence of limiting left knee symptoms since his
alleged onset date. On February 24, 2014, Dr. Nasir
noted that the claimant’s hypertension and
hyperlipidemia remain stable and that the claimant
was compliant [sic] with his medications. He noted
that the claimant’s alleged frozen left shoulder
symptoms improved significantly with physical
therapy. He noted that the claimant had no pain and
improved range of motion (Exhibit 4F). Based upon
the above findings, these conditions do not result in
any significant limitations in the claimant’s ability to
perform basic work activities.
The claimant alleges back pain. However, there is no
diagnosis related to his alleged back pain by an
acceptable medical source ...Thus, there is no
medically determinable impairment attributable to the
Annette Durica, MA, provided a letter regarding the
claimant. She noted the claimant’s alleged mental
health and personality issues, which impact his ability
to function in the workplace ... (Exhibit 5f). This
assessment is given no weight and the psychological
conditions identified by Ms. Durica are not considered
medically determinable impairments. First, Ms. Durica
is not an acceptable medical source ... Furthermore,
the claimant testified that his connection with Ms.
Durica is through occasional conversations that they
have had while he was performing yard work for Ms.
Durica (Hearing Testimony). In other words, there
was no formal treatment or clinical relationship.
Given the medical evidence of record and the hearing testimony, the
Court finds that the ALJ’s explanation adequately identifies the substantial
evidentiary support for his finding that O’Toole’s other medical conditions
were not severe. Indeed, O’Toole has not pointed to any medical evidence
suggesting limitations related to his non-severe medical conditions that were
not included in the ALJ’s RFC finding. Moreover, any alleged error committed
by the ALJ at the step two analysis was harmless given that the ALJ
proceeded through the remaining steps of the sequential evaluation process.4
B. Residual Functional Capacity
O’Toole’s next argument is lodged against the ALJ’s RFC assessment
alleging that it is not supported by substantial evidence because the RFC is
inconsistent with the definition of light work given its sit/stand limitations; the
ALJ failed to discuss SSR 96-8p and whether the combined effect of his
conditions rendered him disabled; and finally, the record did not contain an
RFC assessment from a treating or consulting physician.5
The RFC reflects the most a claimant can do, rather than the least, and
the ALJ expresses the RFC in terms of the highest level of exertional work
that the claimant is generally capable of performing, but which is “insufficient
to allow substantial performance of work at greater exertional levels.” SSR 83-
O’Toole also avers that the ALJ erred by failing to consider Listing
9.00.This is a challenge to the ALJ’s step-three finding. Under Listing 9.00,
a claimant with an endocrine disorder like diabetes mellitus, must show that
his endocrine disorder has caused him to meet or equal the criteria of a listing
for another body system. See 20 C.F.R. Pt. 404, Subpt. P, App 1, §9.00(B)(5).
The burden is on O’Toole to prove presumptive disability at step three. His
one sentence allegation fails to meet his burden here.
O’Toole’s argument that the record did not contain an RFC
assessment from a treating or consulting physician was brought in his first
argument, but given its relatedness to step four of the sequential evaluation
process, the Court will address it here.
10, 1983 WL 31251 at *12; see also SSR 96-8p, 1996 WL 374184 at *2
(recognizing an RFC represents the most that individual can do given
limitations). The ALJ must then determine whether the claimant’s RFC permits
him to perform the full range of work contemplated by the relevant exertional
level. SSR 83-10, 1983 WL 31251 at *5. “[I]n order for an individual to do a full
range of work at a given exertional level the individual must be able to perform
substantially all of the exertional and nonexertional functions required in work
at that level.” SSR 96-8p, 1996 WL 374184 at *3. If the claimant’s combined
exertional and nonexertional impairments allow him to perform some of the
occupations classified at a particular exertional level, but not all of them, the
occupational base at that exertional level will be reduced to the extent that the
claimant’s restrictions and limitations prevent him from doing the full range of
work contemplated by the exertional level. See SSR 83-14, 1983 WL 31254
at *6 (“Where it is clear that additional limitations or restrictions have
significantly eroded the exertional job base set by the exertional limitations
alone, the remaining portion of the job base will guide the decision.”). The
“ALJ generally must accept evidence from a vocational expert, who, based on
the claimant’s age, education, work experience, and RFC, testifies whether
there are jobs for such a person in the national economy.” Morgan v.
Barnhart, 142 F. App’x 716, 720-21 (4th Cir. 2005).
At the administrative hearing, the ALJ provided the vocational expert
with a number of hypothetical questions. (Tr. 57-61). The ALJ asked the
vocational expert whether there were jobs that someone with O’Toole’s age,
education, and capable of light-duty work could perform if that person is
limited to only occasional stooping, kneeling, crouching, crawling, and
climbing stairs; and must avoid hazards such as unprotected heights and
temperature extremes. (Tr. 57). The vocational expert testified that this
hypothetical individual, with those limitations, could perform a number of jobs
in the national economy such as a small products assembler and electrical
accessories assembler. (Tr. 58-59). The ALJ asked the vocational expert to
assume the same limitations as contained in the first hypothetical question,
but the hypothetical individual was further limited to sitting one hour before
needing to stand for up to one hour before needing to sit again for one hour
and so forth throughout the day. (Tr. 59). The vocational expert testified that
the hypothetical individual could still perform work as a products assembler
and electrical accessories assembler, but would reduce the numbers by fifty
percent. (Tr. 59). The ALJ then asked the vocational expert to assume the
same limitations, but to further limit the hypothetical individual to only
occasional interactions with member[s] of the public, coworkers, and
supervisors. (Tr. 61). The vocational expert testified that the hypothetical
individual could still perform work as a small products assembler and
electrical accessories assembler and that the numbers reduced by fifty
percent in the previous hypothetical would remain the same. (Tr. 61).
The ALJ also asked the vocational expert to assume the same
limitations as contained in the first hypothetical question, but to limit the work
to sedentary work. (Tr. 59). The vocational expert testified that the
hypothetical individual could perform work as a table worker and final
assembler. (Tr. 59). The ALJ asked the vocational expert to assume the same
limitations as contained in the above hypothetical question, but to further limit
the hypothetical person to sitting one hour before needing to stand one hour
before needing to sit again for one hour throughout the course of the workday.
(Tr. 60). The vocational expert testified that the hypothetical individual could
still perform work as a table worker and final assembler, but would reduce the
numbers by fifty percent. (Tr. 60). Finally, the ALJ asked the vocational expert
to assume the same limitations, but to further limit the hypothetical individual
to only occasional interactions with members of the public, coworkers, and
supervisors. (Tr. 61). The vocational expert testified that the hypothetical
individual could still perform work as a table worker and final assembler and
that the numbers reduced by fifty percent in the previous hypothetical would
remain the same. (Tr. 61).
The ALJ adopted the limitations as set forth in his hypothetical
questions posed to the vocational expert as follows: the claimant has the
residual functional capacity to perform light work; is able to stoop, kneel,
crouch, crawl, and climb stairs occasionally; should avoid hazards, such as
unprotected heights and temperature extremes; and is limited to standing for
one hour before needing to sit for up to one hour before needing to stand
again for up to one hour, with this continuing throughout the day. (Tr. 15).
O’Toole attacks the adequacy of the ALJ’s RFC and the ALJ’s alleged
failure to consider whether the totality of conditions render him disabled
pursuant to SSR 96-8p. SSR 96-8p provides guidance on how to properly
assess a claimant’s RFC, which is the claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis.” SSR 96-8p, 1996 WL 374184 at *1. The Ruling provides
that the ALJ’s RFC determination requires “a function-by-function assessment
based upon all of the relevant evidence of an individual’s ability to do workrelated activities. Id. at *3. Only by examining specific functional abilities can
the ALJ determine (1) whether a claimant can perform past relevant work as
it was actually, or is generally, performed; (2) what exertional level is
appropriate for the claimant; and (3) whether the claimant “is capable of doing
the full range of work contemplated by the exertional level.” Id.
The Court finds that the ALJ thoroughly considered O’Toole’s
description of his activities and symptoms, his medical records, the
evaluations and opinions of medical experts who did and did not examine him,
and his testimony at the administrative hearing in arriving at the RFC finding.
(Tr. 13-17). Under the applicable regulation, “light work” is defined as “lifting
no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these
activities.” 20 C.F.R. §§404.1567(b), 416.967(b); see also SSR 83-10, 1983
WL 31251 at *5-6. “[T]he full range of light work requires standing or walking,
off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR
83-10, 1983 WL 31251 at *6. In contrast, “sedentary work” is defined as
“lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools.” 20 C.F.R. §416.967(a).
“Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” Id.; see also SSR 83-10, 1983 WL 31251 at
*5 (defining sedentary work).
SSR 83-14 provides:
The major difference between sedentary and light
work is that most light jobs - particularly those at the
unskilled level of complexity - require a person to be
standing or walking most of the workday. Another
important difference is that the frequent lifting or
carrying of objects weighing up to 10 pounds (which
is required for the full range of light work) implies that
the worker is able to do occasional bending of the
stooping type; i.e., for no more than one-third of the
workday to bend the body downward and forward be
bending the spine at the waist.
SSR 83-14, 1983 WL 31254 at *4; see also SSR 83-10, 1983 WL 31251 at
*5 (explaining that the “good deal of walking or standing” in light jobs is “the
primary difference between sedentary and most light jobs.”). While there are
“[r]elatively few unskilled light jobs ... performed in a seated position,” there
are unskilled light jobs accommodating a standing or walking limitation
nonetheless. SSR 83-10, 1983 WL 31251 at *5.
Further, an ALJ need not rigidly apply exertional categories to a
claimant’s impairments; instead, where additional limitations exist such that
a claimant does not fall neatly within an exertional category, an ALJ should
take those limitations into account when determining a claimant’s RFC and
appropriately reduce the occupational base to fit the claimant’s individual
characteristics at step five of the process. See 20 C.F.R. §§404.1569,
416.969; SSR 83-12, 1983 WL 31253 at *2 (noting that an adjudicator is to
consider the extent of erosion of occupational base and “access its
O’Toole’s citation to SSR 83-10 does not support his contention. As
discussed above, SSR 83-10 sets out the definition for the full range of light
work. 1983 WL 31251 at *5-6. The definition of light work includes jobs that
can be performed while “sitting most of the time but with some pushing and
pulling of arm-hand or leg-foot controls,” SSR 83-10, 1983 WL 31251 at *5,
and O’Toole does not argue nor do the medical records establish that he
cannot perform those requirements. Moreover, SSR 83-10 recognizes that
there are unskilled light level jobs that may be performed from a seated
position. Id.; see Lackey v. Colvin, Civ. No. 12-CV-516, 2013 WL 1903662 at
*2 (W.D. Pa. May 7, 2013) (rejecting claimant’s argument that four-hour
standing and walking limitation was inconsistent with ability to perform light
work). The ALJ did not find that O’Toole could perform the full range of light
work; rather, the ALJ found that O’Toole could perform a reduced range of
light work given his limitations. Accordingly, O’Toole’s contention that his
standing and walking limitations per se restrict him to sedentary exertional
work is not persuasive. Furthermore, even assuming that there was not
support for the finding that O’Toole could perform light work, it ultimately
would not matter. The vocational expert also identified two positions at the
sedentary level that O’Toole could perform.
O’Toole’s final argument with regard to the RFC is that the record did
not contain an RFC assessment from a treating or consulting physician.
O’Toole further contends that the ALJ should have requested an opinion from
his treating physician or sent him to internal medicine and psychological
consultative examinations. These arguments are unpersuasive.
It is the ALJ’s sole responsibility to determine a claimant’s RFC. See
generally SSR 96-5p, 1996 WL 374183. However, “ ‘[r]arely can a decision be
made regarding a claimant’s [RFC] without an assessment from a physician
regarding the functional abilities of the claimant.’ ” Biller v. Acting Comm’r of
RI Soc. Sec., 962 F.Supp. 2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont
v. Astrue, Civ. No. 11-CV-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4,
2013). That is because an ALJ is not permitted to make speculative
inferences from the record or “substitute his own judgment for that of a
physician.” Id. (citations omitted). He must have something upon which to
ground his findings; typically, an opinion from an acceptable medical source.
Statements “about the nature and severity of [a claimant’s] impairment(s),
including [his] symptoms, diagnosis and prognosis, what [he] can still do
despite impairment(s), and [his] physical or mental restrictions” are “medical
opinions” which must be weighed and considered according to the rules. 20
C.F.R. §404.1527(a)(2); see 20 C.F.R. §404.1527(d). Accordingly, while
“[t]here is no legal requirement that a physician have made the particular
findings that the ALJ adopts in the course of determining an RFC,”
Titterington v. Barnhart, 174 F. App’x 6, 11 (3d Cir. 2006), a physician’s
medical opinion on a matter not reserved to the Commissioner must be
properly considered. Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
Upon reviewing the evidence, the ALJ found that O’Toole can perform
light work with restrictions as set forth above. In crafting this RFC, the ALJ
considered the medical evidence of the record, including the opinion evidence
from Dr. Arnold, a state agency medical consultant,6 and O’Toole’s own
SSR 96-6p provides that “[s]tate agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts
in the evaluation of the medical issues in disability claims under the Act. As
members of the teams that make determinations of disability at the initial and
testimony. Dr. Arnold, a non-examining source, is a physician that provided
a medical or other opinion in this case. See SSR 96-6p; 20 C.F.R. §404.1502.
The ALJ found that Dr. Arnold’s opinions regarding O’Toole’s limitations were
consistent with the medical evidence of the record, other than his opinion
regarding O’Toole’s ability to lift and carry ten pounds occasionally and less
than ten pounds frequently. (Tr. 17). However, the ALJ adequately explained
that this portion of the opinion was inconsistent with O’Toole’s own testimony
wherein he testified that he is able to lift up to thirty pounds without pain and
lifts and carries ten to fifteen pounds daily. (Id.).
Furthermore, the ALJ is under no obligation to order a consultative
examination when the information he needs is already available to him from
the medical sources in the record. See 20 C.F.R. §§404.1519, 416.919 (“The
decision to purchase a consultative examination will be made on an individual
case basis in accordance with the provisions of §§404.1419(a)-(f)” and
“416.919(a)-(f)”); 20 C.F.R. §404.1519(a), 416.919(a) (“If we cannot get the
information we need from your medical sources, we may decide to purchase
a consultative examination.”). Here, the record was sufficient to allow the ALJ
reconsideration levels of the administrative review process (except in disability
hearings), they consider the medical evidence in disability cases and make
findings of fact on the medical issues, including, but not limited to, the
existence and severity of an individual’s symptoms, whether the individual’s
impairment(s) meets or is equivalent in severity to the requirements for any
impairment listed in 20 C.F.R. pt. 404, subpt. P., app.1, and the individual’s
residual functional capacity.” SSR 96-6p, 1996 WL 374183.
to determine O’Toole’s RFC without the need to order a consultative
examination. Accordingly, the Court finds that the ALJ’s RFC assessment is
supported by substantial evidence.
C. Credibility Evaluation
O’Toole’s final argument challenges the ALJ’s credibility evaluation,
arguing that the ALJ erred by: (1) drawing an adverse inference from
O’Toole’s failure to comply with treatment; (2) citing O’Toole’s activities of
daily living; and (3) failing to conduct a proper pain analysis.
The ALJ is charged with the responsibility of determining a claimant’s
credibility. See Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The
ALJ’s decision “must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reason for
that weight.” SSR 96-7p. The Third Circuit has stated that “[w]e ‘ordinarily
defer to an ALJ’s credibility determination because he or she has the
opportunity at a hearing to assess a witness’s demeanor.” ’ Coleman v.
Comm’r of Soc. Sec. 440 F. App’x 252, 253 (3d Cir. 2012) (quoting Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). “Credibility determinations are the
province of the ALJ and should only be disturbed on review if not supported
by substantial evidence.” Pysher v. Apfel, Civ. No. 00-CV-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); Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014)
(an ALJ’s credibility determination is entitled to great deference). An ALJ is
not required to specifically mention relevant Social Security Rulings. See
Holiday v. Barnhart, 76 F. App’x 479, 482 (3d Cir. 2003). It is enough that the
ALJ’s analysis by and large comports with relevant provisions. Id.
The ALJ provided a detailed explanation to support his determination
that O’Toole’s allegations regarding the limiting effects of his alleged
conditioners were not fully credible. (Tr. 15-17). For example, the ALJ cited
to the medical records to show that O’Toole’s chronic kidney dysfunction and
neuropathy were the result of his elevated blood sugar levels due to noncompliance with his treatment regimen, but that his blood sugar levels may be
effectively controlled with adherence to his insulin regimen and proper diet.
(Exhibits 1F and 4F). The record is replete with O’Toole’s doctors advising
him of the importance of his blood sugar control and dietary moderations,
which he fully acknowledged, but nevertheless, continued with poor control
over his eating habits and blood sugar management. (Tr. 664, 940, 949).
The ALJ further pointed to Dr. Spatz’s finding that O’Toole’s renal
function remained overall stable for the last three years and the continual
advisement to O’Toole of the importance of blood sugar control. (Exhibit 4F).
Moreover, the ALJ explained that the medical records show that O’Toole
presented without peripheral edema, intact gait, and no weakness upon
examination with Dr. Spatz. (Exhibit 4F). Finally, the ALJ reasoned that
O’Toole’s own reported activities of daily living present inconsistencies with
his allegations. (Tr. 17). O’Toole testified that he was able to do his laundry,
drive, shop in stores, as well as perform yard work for others. (Tr. 14, 17). 20
C.F.R. §404.1529(c)(3) (activities of daily living are properly considered in
Thus, the ALJ’s assessment and the medical record belies O’Toole’s
credibility arguments. The ALJ noted O’Toole’s lack of credibility and cited
many bases for his findings. The ALJ properly concluded that his complaints
were not consistently supported by medical treatment records, or by his own
description of his conditions. Given these conflicts in the evidence, the ALJ
as fact-finder, was entitled to give greater weight to this other objective
medical evidence, objective evidence which did not support his claims.
Recognizing that the “substantial evidence” standard of review prescribed by
statue is a deferential standard of review, which is met by less than a
preponderance of evidence but more than a mere scintilla of proof, the Court
concludes that the ALJ’s decisions assessing this competing proof regarding
O’Toole’s ability to function despite his various claimed impairments was
supported by substantial evidence.
A review of the administrative record reveals that the decision of the
Commissioner is supported by substantial evidence. Accordingly, pursuant to
42 U.S.C. §405(g), the decision of the Commissioner will be affirmed. An
appropriate order will be entered.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: April 26, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1663-01.wpd
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