Brinegar v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/3/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LISA K. BRINEGAR,
:CIVIL ACTION NO. 3:16-CV-1872
NANCY A. BERRYHILL,1
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act (“Act”).
filed an application for benefits on May 8, 2013, alleging a
disability onset date of April 10, 2001.
because of res judicata considerations related to her previous
application for SSI, the relevant period for the current
application begins on the filing date of May 8, 2013.
Plaintiff appealed the initial denial of the claim, a hearing was
Nancy A. Berryhill is now the Acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure which addresses the substitution of parties when a public
officer is replaced, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this
suit. Fed. R. Civ. P. 25(d). No further action needs to be taken
to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), which states
that “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying
the office of Commissioner of Social Security or any vacancy in
held on September 10, 2014, and Administrative Law Judge (“ALJ”)
Therese A. Hardiman issued her Decision on January 23, 2015,
concluding that Plaintiff had not been under a disability during
the relevant time period.
Plaintiff requested review of
the ALJ’s decision which the Appeals Council denied on July 12,
In doing so, the ALJ’s decision became the
decision of the Acting Commissioner.
Plaintiff filed this action on September 12, 2016.
She asserts in her supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ’s finding that Plaintiff has no severe physical
impairments is not supported by substantial evidence and is harmful
error; 2) the ALJ’s RFC assessment imposing no exertional
limitaions is not supported by substantial evidence; and 3) the ALJ
committed a reversible error of law by failing to accord greater
weight to the opinion of Joseph Primavera, Ph.D.
(Doc. 11 at 3.)
After careful review of the record and the parties’ filings, the
Court concludes this appeal is properly denied.
Plaintiff was born on December 26, 1965, and was forty-seven
years old on the date the application was filed.
a high school education and does not have past relevant work.
Plaintiff reported that she was last employed as a dogsitter
in 2008 and she had worked in sales in the “distant past.”
On February 3, 2013, Plaintiff presented as a new patient to
Marshall-Rismiller and Associates where she was seen by Robert A.
By history, Plaintiff reported episodes
of chronic joint pain, especially of the lower back with stiffness
and decreased range of motion of the lower back and multiple joints
of her body.
She said the symptoms had been present for
years, she took Percocet for pain, and she had been diagnosed with
rheumatoid arthritis in the past but had been unable to see a
rheumatologist because she did not have insurance.
Plaintiff also reported a history of mood disorder, panic disorder,
and ADHD treated with Xanax, Prozac, Geodon, and Adderall and
followed by psychiatry.
Physical examination showed the
following: height of five feet, five inches and weight of 212
pounds with a body mass index (BMI) of 35.3; healthy and well
developed appearance with no signs of acute distress; alert and
oriented x3; no edema of the lower limbs bilaterally; normal gait;
low back pain and stiffness with decreased range of motion of lower
back; and some joint pain of various joints.
Scalia assessed rheumatoid arthritis for which he recommended that
Plaintiff continue to take Percocet for pain. (R. 317.)
recommended that she continue with her medications for the mood
disorder, panic disorder, and ADHD, and that she continue to follow
up with psychiatry.
At March and April office visits,
Dr. Scalia’s examination findings remained the same, and he
referred Plaintiff to a rheumatologist.
(R. 318-19, 320-21.)
Plaintiff saw rheumatologist Thomas M. Harrington, M.D., on
April 5, 2013.
The reason for the visit was
“generalized body aches and pains” of longstanding duration (over
Plaintiff reported that she had been
diagnosed with fibromyalgia several years earlier and she had not
seen a rheumatologist for several years due to lack of insurance
but recently had gotten insurance again.
Plaintiff said her
symptoms had been relatively stable on Percocet which she took on a
regular basis (three to four per day).
She also ssid she
had tender points to touch, morning stiffness for an hour and a
half, and Raynaud’s phenomena which caused her fingertips to turn
white and painful on exposure to cold.
reported her mental health history and said that she was due to see
a psychiatrist in the near future.
Dr. Harrington recorded
that Plaintiff’s history included hypertriglyceridemia, one
atrophic kidney since birth, recurrent kidney stones, and a motor
vehicle accident in 2012 when her left half was overrun by the
vehicle resulting in a vertebral fracture, and left shoulder and
Dr. Harrington made the following
musculoskeletal examination findings: no synovitis, tenderness, or
effusion; full range of motion of all joints; 5/5 grip strength;
three small non-tender firm subcutaneous nodules on the right
forearm; no contractures; and more than twelve musculoskeletal
Dr. Harrington’s Assessment stated “47
yo female with longstanding Hx of generalized muscle aches and pain
lower back and knees; managed as fibromyalgia by rheumatologist at
Baltimore (lost follow up) now comes for re-evaluation.
posture consistent with FM, no current evidence of any inflammatory
Fibromyalgia was the primary encounter diagnosis
for which Dr. Harrington recommended Plaintiff continue with
Percocet which provided “reasonable control” of her pain, he added
Mobic as needed for pain, and he provided a physical therapy
He also diagnosed osteoarthritis which would
be treated the same as fibromyalgia and would be evaluated with xray.
Dr. Harrington planned to see Plaintiff again in six
On May 2, 2013, Plaintiff saw Dr. Scalia who noted that
Plaintiff presented as “healthy and well-developed [with] [n]o
signs of acute distress present [and] [a]lert and oriented x 3.”
He recorded musculoskeletal physical examination
findings of low back pain and stiffness, decreased range of motion
of low back, some joint pain of various joints, and a normal gait
for her age.
Dr. Scalia’s diagnoses included rheumatoid
arthritis for which he noted she was following up with
On May 17, 2013, Plaintiff had bilateral knee x-rays because
Findings included “symmetrical mild to
moderate narrowing of the medial compartments . . . [and] [m]inimal
patellar osteophytosis, bilaterally.”
The Impression was
“[m]ild symmetric medial compartmental joint space narrowing in
No evidence of acute osseous abnormality.”
At Plaintiff’s six visits with Dr. Scalia from May 30, 2013,
to October 14, 2013, he recorded musculoskeletal physical
examination findings of low back pain and stiffness, decreased
range of motion of low back, and some joint pain of various joints.
(R. 382, 385, 388, 390, 392, 394.)
He also noted that Plaintiff
walked with a normal gait for her age.
He found that she
consistently presented as “healthy and well-developed [with] [n]o
signs of acute distress present [and] [a]lert and oriented x 3.”
Dr. Scalia’s diagnoses included rheumatoid arthritis at the
first five visits
(R. 385, 388, 390, 392, 394) but not in October
Plaintiff had her follow up visit with Dr. Harrington on
October 18, 2013.
By Plaintiff’s subjective history,
he recorded that “Fibromyalgia - remains stable on Percocet as per
Dr. Scalia tolerates the medicine without difficulty.”
Dr. Harrington noted that osteoarthritis occasionally gave
Plaintiff problems but the pain was helped by Percocet.
physical examination, Plaintiff generally presented as “alert,
healthy, well nourished, well developed and anxious.”
Dr. Harrington made the following musculoskeletal examination
findings: no synovitis or effusion; decreased range of motion of
her right shoulder; 5/5 grip strength; right rotator cuff
tendinitis; and ten musculoskeletal tender points.
primary diagnosis was myalgia and myositis, unspecified, and he
also assessed Plaintiff to have “[o]steoarthritis, unspecified
whether generalized or localized, lower leg.”
Harrington also diagnosed rotator cuff syndrome and offered
Plaintiff an injection but she refused because she was afraid of
(R. 340-41, 345.)
She was to return in six months.
From November 8, 2013, to June 2, 2014, Plaintiff saw Dr.
Scalia seven times and he again regularly recorded musculoskeletal
physical examination findings of low back pain and stiffness,
decreased range of motion of the low back, and some joint pain of
(R. 361, 364, 367, 370, 373, 376, 379.)
noted that Plaintiff walked with a normal gait for her age.
Dr. Scalia found that Plaintiff consistently presented as “healthy
and well-developed [with] [n]o signs of acute distress present
[and] [a]lert and oriented x 3.”
His diagnoses did not
include rheumatoid arthritis or fibromyalgia at any of these
However, at Plaintiff’s May 2, 2014, office visit,
his assessments included “Joint Disorder Unspec Site Unspec” (R.
364), a finding not recorded the following month (R. 362).
Plaintiff had a Psychiatric Evaluation at Berks Psychiatry on
February 5, 2013.
Plaintiff reported that she was
unemployed and going to McCann School for paralegal services.
Her chief complaint was that she needed help, she was “not
By history, Plaintiff reported that she had
been struggling with mental health issues for years and her
symptoms of anxiety and depression were getting worse.
Plaintiff described a variety of symptoms including trouble
sleeping, panic attacks, and mood swings.
Examination by Rahman Khan, M.D., showed that Plaintiff was alert
and oriented to time, place, and person; she had good eye contact;
she looked nervous throughout the interview; her speech was normal
in volume, rate, and tone; she had clear psycho-motor retardation;
no formal thought disorder or delusional thinking were detected;
her cognition and memory were fair; and her judgment and insight
ADHD, and a GAF of 57.
Dr. Khan assessed Bipolar Disorder II, Adult
and medication management.
He recommended individual therapy
May 18, 2013, Therapy Progress Notes from Gina Talarico of
Berks Psychiatry indicate Plaintiff reported she was having some
mood swings but they were not as bad as they had been and she was
“doing ok other than that.”
She specifically said she
was not having any problems with sleep or appetite.
Assessment showed that Plaintiff was oriented to time, place, and
person, her mood was good, and her interactions were good.
A January 15, 2014, Interpretive Summary from Service Access &
Management, Inc., (“SAM”) states that Plaintiff was referred for
case management services “to provide support and to aid her with
linking to community resources and maintaining mental health
Noting a history of
depression/anxiety issues and poor coping strategies, the Summary
included the notation that Plaintiff needed to remain engaged in
mental health counseling services to aid her with developing
healthy feelings management skills.
A January 27, 2014, Psychiatric Evaluation from SAM contains a
good deal of background information that is largely illegible.
Check-the-box Mental Status Exam showed the following:
normal and disheveled appearance; fair hygiene; calm psychomotor;
appropriate affect; euthymic mood; normal speech; fully oriented
x3; coherent thought process; denied hallucinations or delusions;
normal attention/concentration; intact memory; and normal appetite,
energy, sleep patterns, and libido.
The diagnosis was
“R/O Bipolar Disorder[,] extensive history of substance abuse[,]
mood disorder, NOS[,] [and] PTSD” with an assessed GAF of 60.
“Recommendations” consist of the provider’s notation that
despite great sympathy for Plaintiff and her the past traumas, he
cannot take her as a patient--because of her extensive history of
drugs and DUI, the provider could not support the use of Xanax,
Adderal, Topamax and Prozac.
Background information in an Adult Psychiatric Evaluation
conducted by New Beginnings on February 28, 2014, is largely
Check-the-box Mental Status Exam shows
the following: appearance and behavior within normal limits; normal
speech; euthymic mood; mood-congruent affect; goal directed thought
process; alert sensorium; grossly intact cognition; and fair
insight and judgment.
Plaintiff was diagnosed with mood
disorder, NOS, rule out prescription medication addiction, PTSD as
per Plaintiff’s report, and bipolar disorder as per her report.
A GAF of 50-55 was assessed.
and Supportive Psychotherapy were recommended, and Plaintiff was to
return to the clinic in four weeks.
management visits in March, May, and July 2014 indicated that
Plaintiff’s Mental Status Exam was the same except for presentation
with an anxious mood in May.
hallucinations, delusions, and obsessions.
She consistently denied
(R. 404-06, 410.)
During a Psychiatric Evaluation conducted by Joseph Primavera,
Ph.D., on October 30, 2014, Plaintiff reported that she saw Dr.
Kahn every one to two months and she saw Bernadine, a
psychotherapist, twice a month.
Regarding her “current
functioning,” Plaintiff reported that she had disturbed sleep with
frequent nightmares, increased appetite and mood swings, panic
attacks two to three times a week, agoraphobia, manic symptoms
every couple months that last several days, auditory and visual
hallucinations, and cognitive deficits in terms of problems with
short-term memory and concentration.
Mental Status Exam
showed the following: overall cooperative; adequate social skills
and overall presentation; appropriate appearance; fluent, clear,
and adequate speech; coherent and goal-directed thought process
with no evidence of hallucinations, delusions, or paranoia in the
evaluation setting; depressed and anxious affect; dysthymic mood;
clear sensorium; orientation to person, place, and time; intact
attention and concentration (able to perform simple counting,
perform simple calculations, and serial 3s counting backward from
20); impaired recent and remote memory skills (able to repeat 3 out
of 3 objects immediately, but only 2 out of 3 objects after delay,
she was able to repeat 5 digits forward and only 3 digits
backwards); cognitive functioning within average range of
intellectual ability and appropriate fund of information; and good
insight and judgment.
“Mode of Living” findings
include the notations that Plaintiff was limited in her ability to
do cleaning and laundry because of her physical restrictions, and
she goes shopping with someone because she can’t lift.
Dr. Primavera diagnosed ADHD by history, bipolar disorder
(unspecified), and PTSD by history, and he recommended that
Plaintiff continue her outpatient psychological and psychiatric
On June 14, 2013, Juan B. Mari-Mayans, M.D., a State agency
consulting physician, completed a Physical Residual Functional
He opined that Plaintiff would
be able to perform a range of light work: she could lift twenty
pounds occasionally and ten pounds frequently; she could stand
and/or walk for about six hours in an eight-hour day, and she could
sit for the same amount of time; and her ability to push and/or
pull was unlimited other than as shown for lift and/or carry.
An Assessment of Mental Ability to Do Work-Related Activities
was completed on March 9, 2013, by Gina Talarico of Berks
The provider assessed that Plaintiff had
moderate limitations in her abilities to relate to peers, use
judgment, interact with authority figures, function independently,
and maintain attention/concentration; and she had marked
limitations in her abilities to deal with the public and deal with
It was noted that the limitations assessed
could vary depending on Plaintiff’s level of anxiety.
Plaintiff was also assessed to have moderate limitations in her
ability to follow verbal or written instructions, an assessment
based on Plaintiff’s “severe anxiety that makes client get up and
leave without warning” and the inability to control the behaviors.
Regarding making personal and social adjustments,
“depending on level of anxiety,” Plaintiff was found to have
moderate limitations in her abilities to behave in an emotionally
stable manner and to relate predictably in social situations, and a
marked limitation in her ability to demonstrate reliability.
It was also noted that Plaintiff was unable to be around
people at times, to leave the house at times, and to control her
overwhelming anxiety even on medications.
On June 17, 2013, Richard W. Williams, Ph.D., a State agency
consulting doctor, completed a Psychiatric Review Technique (“PRT”)
and a Mental Residual Functional Capacity Assessment.
He opined that Plaintiff would have mild restrictions in
activities of daily living, moderate difficulties in maintaining
social functioning and maintaining concentration, persistence, or
pace, and she had no repeated episodes of decompensation, each of
In his summary explanation, Dr.
Williams noted “[a]lthough this claimant does have some emotional
issue with which she deals, the medical data in file does not
establish a severity level of mental impairment that would prohibit
On October 30, 2014, Dr. Primavera completed a Medical Source
Statement to Do Work-Related Activities (Mental).
opined that Plaintiff had moderate limitations in all abilities
related to understanding, remembering and carrying out
He did not identify factors supporting
Dr. Primavera found that Plaintiff had
marked limitations in all four areas related to her ability to
interact appropriately with supervisors, coworkers, and the public,
as well as respond to changes in the routine work setting.
He identified anxiety and agoraphobia as factors supporting
At the September 10, 2014, hearing, Plaintiff testified that
she does not leave her house every day, she does not like to go up
and down steps at all, she has trouble standing, walking, or
sitting: she can stand for about twenty minutes before she starts
cramping up; and she can walk a city block before she has to stand
still and then she might be able to go another block or two.
When asked about her physical pain, Plaintiff said it was
in her joints, she had pain that ran from her knees to her ankles
and from her hip to her knee, and in the morning her feet hurt and
she had burning pain in her heels.
Plaintiff added that
medication helped but she continued to have pain all day.
identified pain related to her “left shoulder separated things like
that” and it felt like her “bones hurt.”
Plaintiff said her mental health medications, which are
prescribed by her family doctor, make “a huge difference.”
She identified weight gain and physical inertia as medication
Plaintiff also said her therapist helped
her with different ways of thinking and exercises to manage her
depression and anxiety.
ALJ Hardiman first asked Vocational Expert Karen Cane (“VE”)
to consider an individual of the same age, education, and work
experience as Plaintiff who could work at all exertional levels
with the following nonexertional limitations: “[t]he individual
would be limited to simple, routine tasks.
Low stress as defined
as only occasional decision making required and only occasional
changes in the work setting.
Such an individual should have not
interaction with the public or could have occasional interaction
with corworkers and supervisors.”
The VE testified
that such an individual could perform several jobs in the national
economy and she gave examples of jobs in each exertional category.
By way of example, the VE stated that sedentary unskilled
jobs would be video monitor surveillance type positions; light duty
would be laundry folder positions; and under medium duty would be
janitorial type work.
When the ALJ reduced the
hypothetical individual to medium exertional work with all
previously identified non-exertional limitations the same, the VE
identified the positions of janitorial work, dishwasher, and
When the ALJ reduced the hypothetical
individual to light exertional work with all previously identified
non-exertional limitations the same, the VE identified positions of
mail clerk, laundry folder, and order filler.
In her January 23, 2015, Decision, ALJ Hardiman made the
following Findings of Fact and Conclusions of Law:
The claimant has not engaged in
substantial gainful activity since May
8, 2013, the application date (20 CFR
416.971 et seq.).
The claimant has the following severe
impairment: mood disorder (20 CFR
The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform a full
range of work at all exertional levels
but with nonexertional limitations. She
is limited to simple, routine tasks, low
stress, defined as only occasional
decision making and only occasional
changes in the work setting. She should
have no interaction with the public and
only occasional interaction with coworkers and supervisors.
The claimant has no past relevant work
(20 CFR 416.965).
The claimant was born on December 26,
1965 and was 47 years old, which is
defined as a younger individual age 1816
49, on the date the application was
filed (20 CFR 416.963).
Transferability of job skills is not an
issue because the claimant does not have
past relevant work (20 CFR 416.968).
Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a).
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 416.964).
The claimant has not been under a
disability, as defined in the Social
Security Act, since May 8, 2013, the
date the application was filed (20 CFR
Other relevant portions of the ALJ’s Decision will be
referenced in the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2
It is necessary for the
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
only if his
physical or mental impairment or
are of such severity that he is not
to do his previous work but cannot,
his age, education, and work
engage in any other kind of
Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff had the RFC to perform jobs that existed in significant
numbers in the national economy.
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
See, e.g., Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
“There is no requirement
that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Hur v. Barnhart, 94 F. App’x 130, 133 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
the Cotter doctrine is not implicated.”
Hernandez v. Comm’f of
Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where the ALJ’s decision
is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.
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.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).
An ALJ’s decision can
only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.
v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s determination
should be reversed or remanded for the following reasons: 1) the
ALJ’s finding that Plaintiff has no severe physical impairments is
not supported by substantial evidence and is harmful error; 2) the
ALJ’s RFC assessment imposing no exertional limitaions is not
supported by substantial evidence; and 3) the ALJ committed a
reversible error of law by failing to accord greater weight to the
opinion of Joseph Primavera, Ph.D.
(Doc. 11 at 3.)
Plaintiff first asserts the ALJ erred in finding that she did
not have any severe physical impairments because her lower back
pain, reduced range-of-motion of her lower back, osteoarthritis of
her knees, and obesity constitute severe impairments.
(Doc. 11 at
Defendant responds that substantial evidence supports the
ALJ’s step two finding.
The Court concludes Plaintiff has not
shown that this claimed error is cause for reversal or remand.
At step two, the ALJ must determine whether the claimant has a
medically severe impairment that meets the duration requirements in
20 C.F.R. § 416.909, or combination of impairments that is severe
and meets the duration requirements.
20 C.F.R. §
At step two, “an impairment or combination of
impairments is considered ‘severe’ if it significantly limits an
individual’s physical or mental abilities to do basic work
activities; an impairment(s) that is ‘not severe’ must be a slight
abnormality (or a combination of slight abnormalities) that has no
more than a minimal effect on the ability to do basic work
SSR 96-3p, 1996 WL 374181, at *1 (citing SSR 85-28).
Symptoms, such as pain, fatigue, shortness of
breath, weakness, or nervousness, will not be
found to affect an individual's ability to do
basic work activities unless the individual
first establishes by objective medical
evidence (i.e., signs and laboratory
findings) that he or she has a medically
determinable physical or mental impairment(s)
and that the impairment(s) could reasonably
be expected to produce the alleged symptoms.
Id. at *2.
“To qualify as a severe impairment, ‘[t]he physical or
mental impairment must be of a nature and degree of severity
sufficient to justify its consideration as the cause of failure to
obtain any substantial gainful work.’”
Clinton v. Comm’r of Soc.
Sec., 66 F. App’x 311, 313 (3d Cir. 2003) (not precedential)
(quoting Bowen v. Yuckert, 482 U.S. 137, 147).
that the burden of showing a medically determinable impairment is
properly placed on the claimant.
482 U.S. at 146.
Here Plaintiff has not satisfied her burden of showing that
she had a severe physical impairment.
Back pain and reduced range-
of-motion are not impairments, they are symptoms.
WL 374181, at *2.
SSR 96-3p, 1996
Plaintiff has not pointed to any evidence
showing that her obesity is “sufficient to justify its
consideration as the cause of failure to obtain any substantial
Bowen, 482 U.S. at 147.
Mere citation to records
establishing obesity (Doc. 11 at 4; Doc. 13 at 1) cannot establish
severity for purposes of step two.
Finally, in her supporting
brief, Plaintiff links no objective medical evidence to the claimed
severe impairment of “osteoarthritis of her knees.”
(Doc. 11 at
In her reply brief, Plaintiff states that “x-ray evidence of
mild to moderate narrowing of the medial compartments of her knees
constitutes objective medical evidence.”
C.F.R. § 416.928(c)).)
(Doc. 13 at 2 (citing 20
Without more, a single piece of objective
evidence which may be linked to osteoarthritis cannot be deemed
sufficient to satisfy the established standard, especially when
osteoarthritis was not consistently assessed by treating providers
and was not assessed at all after September 2014.
364, 367, 370, 373, 376, 379, 382.)
(See R. 361,
ALJ Hardiman reviewed
diagnostic studies of the knees and hips, stating that the knee xrays showed “only mild medial compartment joint space narrowing
bilaterally and [were] otherwise negative for abnormality.”
She concluded the knee and hip studies did not support the
finding of any significant inflammatory or osteoarthritic
Though Plaintiff notes that May 2013 knee x-rays
“showed symmetrical mild to moderate narrowing of the medial
compartments, with minimal patellar osteophytosis,” the recorded
impression was “[mild symmetric medial compartmental joint space
narrowing in both knees.
No evidence of acute osseous abnormality”
Thus, an inference that the ALJ erred in assessing the
knee studies is not supported by the record.
In her reply brief, Plaintiff notes in the discussion of her
claimed step two error that State agency reviewing physician Dr.
Mari-Mayans found severe impairments of Spine Disorders and
Dysfunction-Major Joints and the ALJ rejected these findings
because they “lacked support ‘from the evidence of record,
including objective findings.’” (Doc. 13 at 2 (citing R. 24).)
Plaintiff then states that “x-ray evidence of mild to moderate
narrowing of the medial compartments of her knees constitutes
objective medical evidence.”
(Id. (citing 20 C.F.R. §
Pointing only to knee x-rays with the recorded
impression of “[mild symmetric medial compartmental joint space
narrowing in both knees [and] [n]o evidence of acute osseous
abnormality” (R. 304) does absolutely nothing to support an
Impairment Diagnosis of “Spine Disorders” (R. 62) and, as a single
piece of evidence, cannot be deemed sufficient to support a
diagnosis of “Dysfuntion - Major Joints” (id.) when no treating or
examining physician made such a diagnosis.3
Because Plaintiff has
not pointed to evidence supporting that the medical problems
identified by herself or Dr. Mari-Mayans constitute severe
impairments, she has not shown that the ALJ erred at step two.4
To the extent Dr. Mari-Mayans’ June 14, 2013, diagnosis of
“Dysfunction - Major Joints” (R. 62) may correlate with Dr.
Scalia’s May 2014 single assessment of “Joint Disorder Unspec Site
Unspec” (R. 364), the timing is such that Dr. Mari-Mayans could not
have relied on the later assessment.
Even assuming arguendo that the claimed step two error had
merit, the error must be shown to be harmful. 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 established 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).
“An error is ‘harmless’ when, despite the technical
correctness of an appellant’s legal contention, there is also ‘no
set of facts’ upon which the appellant could recover.” Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (quoting Rencheski v.
Williams, 622 F.3d 315, 341 (3d Cir. 2010)). The “burden of
showing that an error is harmful normally falls upon the party
Residual Functional Capacity Exertional Level
Plaintiff next claims the ALJ erred in her assessment that she
was capable of performing a full range of work at all exertional
(Doc. 11 at 6.)
In support of this assertion, Plaintiff
avers that the ALJ improperly rejected Dr. Mari-Mayans’ assessment
that Plaintiff was capable of performing light work.
(Doc. 12 at
The Court concludes Plaintiff has not shown that this claimed
error is cause for reversal or remand.
In her very brief discussion of this issue, Plaintiff notes
the regulatory provision explaining that “State agency medical
consultants ‘are highly qualified physicians . . . who are experts
in Social Security disability evaluation.’”
20 C.F.R. § 416. 927(e)(2)(i)).)
(Doc. 11 at 6 (quoting
She then notes that the ALJ
rejected Dr. Mari-Mayans’ opinion, “finding it ‘without support
from the evidence of record, including objective findings’” (id.
attacking the agency’s determination” Shineski v. Sanders, 556
U.S. 396, 409 (2009) (citations omitted) (noting exceptions and
qualifications not applicable here).
Here, Plaintiff does not discuss what physical limitations are
related to the impairments she alleges to be severe or explain how
she would be precluded from engaging in substantial gainful
activity. (See Doc. 11 at 4-6.) In her reply brief, Plaintiff
points to Dr. Mari-Mayans’ finding that she had the RFC for light
work, but she again fails to point to specific limitations or argue
that she could not engage in substantial gainful activity. (Doc.
13 at 2.) Thus, Plaintiff has not shown how the alleged error
would be harmful–-because the evidence relied upon supports an RFC
for light work, Plaintiff would not receive benefits if the ALJ had
found a severe physical impairment consistent with Dr. Mari-Mayans’
opinion and adopted his RFC for light work. See infra n.6.
(citing R. 24)), and “submits that the medical evidence discussed
earlier supports Dr. Mari-Mayan’s [sic] RFC finding” (id. at 7).
Plaintiff also notes that the ALJ who ruled on an earlier
application for SSI benefits “found severe impairments, including
fibromyalgia with knee pain, and limited Plaintiff to sedentary
(Id. (citing R. 76, 79).)
Plaintiff does not satisfy her burden of showing error on the
basis alleged primarily because she does not show how “the evidence
discussed earlier” supports Dr. Mari-Mayans’ opinion.
(Doc. 11 at
With her conclusory assertion, Plaintiff makes no attempt to
correlate the evidence she cited earlier in her brief with Dr.
Mari-Mayans’ conclusions regarding specific limitations nor does
she provide any further critique of the ALJ’s opinion assessment.
(See Doc. 11 at 6-7.)
Our review of the record shows that “the
evidence discussed earlier” includes documentation of “ongoing
complaints of lower back and muscle pain” (Doc. 11 at 4) which is
subjective rather than objective evidence.
earlier” in Plaintiff’s brief also includes Dr. Scalia’s notations
of decreased range-of-motion of the lower back (id. at 4-5),
findings which are consistently documented but are not suggestive
of degree of difficulty or functional limitations, particularly
when, in October 2013,
Dr. Harrington assessed “[m]yalgia and
myositis” unspecified and “[o]steoarthritis, unspecified whether
generalized or localized, lower leg” and noted the pain medication
controlled symptoms and osteoarthritis only “occasionally” gave her
problems (R. 340, 341).
The evidence referenced by Plaintiff
includes “a diagnosis of fibromyalgia or myalgia and myositis.”
(Doc. 11 at 5.)
However, the fibromyalgia diagnosis is not
longitudinally objectively supported (see, e.g., R. 341, 362), and
Plaintiff does not assert it to be a severe impairment now (Doc. 11
at 6); myalgia (muscle pain or ache) and myositis (muscle
inflammation) are symptom descriptions and not impairments
themselves5 which reportedly were controlled with medication (R.
Finally, a review of evidence cited regarding obesity (Doc.
11 at 5) indicates that the records merely note the weight status
with no related limitations identified in any record.
Furthermore, Plaintiff’s reference to a different ALJ’s
decision on an earlier SSI application (Doc. 11 at 7) does not
support her claimed error.
An ALJ is not bound by an earlier
decision where a different time period and different evidence are
Carter v. Barnhart, 133 F. App’x 33, 35 (3d Cir. 2005)
(not precedential); see also Clark v. Barnhart, 206 F. App’x 211,
214-15 (3d Cir. 2006) (not precedential).
Carter explained that
[t]he affirmative defense of res judicata did
not bind [the ALJ in the second decision]
because the record contained new evidence
that was unavailable to [the first ALJ], and
because the relief sought was limited to a
determination that he was disabled from July
1999, instead of May 1995 as alleged in the
133 F. App’x at 35.
Here Plaintiff merely notes the findings in the earlier
Decision without supportive authority or recognition of the
distinctions between the time period and evidence considered.
(Doc. 11 at 7.)
Therefore, this claimed basis of support is
For the reasons discussed above, Plaintiff has not shown that
the ALJ’s RFC imposing no exertional limitations is not supported
by substantial evidence.
Therefore, this claimed error is not
cause for reversal or remand.6
This determination is bolstered by the fact that Plaintiff
does not address Defendant’s response on this issue in her reply
brief and only mentions Dr. Mari-Mayans’ opinion in the context of
the claimed step two error (Doc. 13 at 2.) More importantly,
Plaintiff has not discussed harm associated with the alleged error.
As with her claimed step two error, she does not argue that a
finding of disability would result if the ALJ had given greater
weight to Dr. Mari-Mayans’ opinion. In this context, Plaintiff
does not argue she is not capable of light work or that additional
physical nonexertional limitations were warranted. She merely
asserts it was error to find she could perform a full range of work
at all exertional levels because Dr. Mari-Mayans opined that she
had the RFC for light work. (Doc. 11 at 6.) (Dr. Mari-Mayans did
not find that Plaintiff had any nonexertional limitations. (R. 6465.))
As noted previously, “[a]n error is ‘harmless’ when, despite
the technical correctness of an appellant’s legal contention, there
is also ‘no set of facts’ upon which the appellant could recover.”
Brown, 649 F.3d at 195, and the “burden of showing that an error is
harmful normally falls upon the party attacking the agency’s
determination” Shineski, 556 U.S. at 409.
Because the VE testified that a hypothetical individual of
Plaintiff’s age, education, and experience with nonexertional
Consulting Examiner’s Opinion
Plaintiff asserts the ALJ committed a reversible and harmful
error by failing to accord greater weight to the opinion of Joseph
(Doc. 11 at 7.)
Defendant responds that
substantial evidence supports the ALJ’s analysis of the opinion.
(Doc. 12 at 12.)
The Court concludes Plaintiff has not shown the
claimed error is cause for reversal or remand.
The regulations provide that more weight is generally given to
an examining source than to a non-examining source.
20 C.F.R. §
Section 416.927(c)(3) provides the following:
The more a medical source presents relevant
evidence to support an opinion, particularly
medical signs and laboratory findings, the
more weight we will give that opinion. The
better an explanation a source provides for
an opinion, the more weight we will give that
opinion. Furthermore, because nonexamining
sources have no examining or treating
relationship with you, the weight we will
give their opinions will depend on the degree
to which they provide supporting explanations
for their opinions. We will evaluate the
degree to which these opinions consider all
of the pertinent evidence in your claim,
including opinions of treating and other
As an examining source, Dr. Primavera’s opinion would
generally have been given greater weight than the opinion of Dr.
limitations identifed by the ALJ could perform jobs that were
available in the national economy at the light exertional level (R.
54), a finding of not disabled would result even if the ALJ had
adpoted Dr. Mari-Mayans’ assessment.
Williams, the State agency doctor whose opinion the ALJ afforded
great weight (R. 24).
However, the weight afforded the source
depends on the presentation of relevant evidence to support an
opinion, particularly medical signs and laboratory findings, and
the explanation the source provides for an opinion.
20 C.F.R. §
Here, the ALJ reviewed the limitations found by Dr.
Primavera and concluded
there is no explanation in terms of signs or
laboratory findings to support any of the
marked limitations and the doctor’s objective
findings are devoid of actual objective
deficits correlated or attributable to those
areas of function. Further, the longitudinal
record fails to support that the claimant has
any significant objective deficits to mental
functioning, including those areas the
consultative examiner noted were marked. The
consultative examiner saw the claimant once
and is not a treating source. He relied
exclusively upon the claimant’s selfreporting and not upon any longitudinal
treating relationship. As such, only some
weight can be afforded the moderate
limitations and little weight can be afforded
the marked limitations, as the marked
limitations are clearly not well supported on
the face of the opinion, the doctor’s own
examination findings, or the record as a
Plaintiff first argues that the ALJ’s analysis fails to take
into account a March 9, 2013, Assessment of Mental Ability to Do
Work-Related Activities which appears to have been completed by
(Doc. 11 at 9 (citing R. 261-64).)
Plaintiff maintains that the opinion, which found marked
limitations at that time in abilities to deal with the public and
deal with stress and ability to demonstrate reliability (R. 26263), “tends to bolster the restrictions imposed by Dr. Primavera.”
(Doc. 11 at 9.)
Plaintiff concludes that the ALJ’s failure to
discuss this evidence was error because it is probative evidence
which cannot be rejected without explanation.
Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001); Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994); Brewster v. Heckler, 786
F.2d 581, 585 (3d Cir. 1986); Cotter, 642 F.2d at 705; Dobrowolsky,
606 F.2d at 407).)
Regarding ALJ Hardiman’s failure to discuss the March 2013
Berks Psychiatry opinion, Defendant responds that the ALJ did not
err in failing to discuss the evidence because it predated the
relevant period and, therefore, it is not pertinent to the current
(Doc. 12 at 14.)
points out that the only Berks’ progress report from the relevant
time period, dated May 18, 2013, “reflects that Plaintiff had some
mood swings, and she was ‘doing ok other than that.”
In her reply brief, Plaintiff disputes Defendant’s
relevance point, noting that the Assessment was completed two
months before Plaintiff’s protective filing date and “[t]here is no
indication in the record that Plaintiff’s mental functioning
drastically improved between March 9 and May 8, 2013.”
(Doc. 13 at
With this argument, Plaintiff does not acknowledge the May 18,
2013, Berks’ progress note from the same provider who completed the
March Assessment in which she recorded that Plaintiff reported she
was having some mood swings but they were not as bad as they had
been and she was “doing ok other than that,” Plaintiff specifically
said she was not having any problems with sleep or appetite, and
evaluation showed that Plaintiff was oriented to time, place, and
person, her mood was good, and her interactions were good.
The May report contrasts with notes earlier in the year when
Plaintiff reported she was not doing well with increased symptoms
of depression including difficulty sleeping, panic attacks, and
(See, e.g., R. 236.)
Thus, Plaintiff’s statement
that the record does not show that Plaintiff’s condition improved
is not consistent with record evidence and, even assuming arguendo
the March report had some relevance, Plaintiff has not shown
harmful error on the basis that ALJ Hardiman did not consider
evidence which predated the relevant time period.
See supra n.6.
Finally, Plaintiff’s assertion that Dr. Primavera’s assessment
is consistent with findings made by Service Access & Management,
Inc., (“SAM”) (Doc. 11 at 10-11) does not point to error in the
weight ALJ Hardiman afforded Dr. Primavera’s opinion.
As noted in
the Background section of this Memorandum, a January 15, 2014,
Interpretive Summary from SAM states that Plaintiff was referred
for case management services “to provide support and to aid her
with linking to community resources and maintaining mental health
Noting a history of
depression/anxiety issues and poor coping strategies, the Summary
included the notation that Plaintiff needed to remain engaged in
mental health counseling services to aid her with developing
healthy feelings management skills.
Plaintiff does not
explain the suggested support, and the Court concludes that nothing
in this summary supports the marked limitations assessed by Dr.
Similarly, the January 27, 2014, Psychiatric Evaluation from
SAM does not indicate a basis for finding marked limitations.
contains a good deal of background information that is largely
illegible (R. 347-48), but the check-the-box Mental Status Exam
recorded mostly normal findings including appropriate affect,
euthymic mood, coherent thought process; normal
attention/concentration, intact memory, and normal appetite,
energy, sleep patterns, and libido (R. 353).
Plaintiff does not
discuss this Mental Status Exam but references the provider’s
notation that Plaintiff has “a very drastic life story” and lists
(Doc. 11 at 10-11.)
This evidence viewed
contextually clearly shows that Plaintiff has not provided a basis
for the suggested support.
First, the characterization of
Plaintiff’s life story does not support marked limitations.
Second, in listing the diagnoses, Plaintiff did not note the
provider’s assessed GAF of 60 which is at the high end of the
category (GAF of 51-60) representing moderate symptoms or any
moderate difficulty in social, occupational, or school
Diagnostic and Statistical Manual of Mental
Disorders (4th ed., text rev.); Rios v. Comm’r of Soc. Sec., 444 F.
App’x 532, 533 n.3 (3d Cir. 2011) (not precedential).
Plaintiff has not attempted to show that the SAM Mental Status Exam
findings support the marked limitations found by Dr. Primavera and
the Court does not find such support.
Because Plaintiff has not shown that ALJ Hardiman’s analysis
of Dr. Primavera’s opinion constitutes harmful error, she has not
shown that this matter should be reversed or remanded for further
For the reasons discussed above, Plaintiff’s appeal is
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 3, 2017
Pursuant to Social Security Administration rules, a
claimant's GAF score is not considered to have a “direct
correlation to the severity requirements.” Watson v. Astrue, Civ.
A. No. 08-1858, 2009 WL 678717, at *5 (Mar. 13, 2009) (citing 66
Fed. Reg. 50746, 50764-65 (2000)). While the significance and use
of GAF scores has been debated since the GAF scale was eliminated
from the Diagnostic and Statistical Manual of Mental Disorders, an
ALJ is not precluded from considering GAF scores as evidence. See,
e.g., Forster v. Colvin, Civ. A. No. 3:13-CV-2699, 2015 WL 1608741,
at *9 n.2 (M.D. Pa. Apr. 10, 2015).
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