Bennick v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal of the Acting Commissioners decision is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 7/11/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JENNIFER LYNN BENNICK,
:CIVIL ACTION NO. 3:16-CV-2391
NANCY A BERRYHILL,1
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act.
filed an application for benefits on May 16, 2013, alleging a
disability onset date of September 20, 2012.
Plaintiff appealed the initial denial of the claims, a hearing was
held on January 21, 2015, and Administrative Law Judge (“ALJ”)
Therese A. Hardiman issued her Decision on April 15, 2015,
concluding that Plaintiff had not been under a disability during
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
the relevant time period.
Plaintiff requested review of
the ALJ’s decision which the Appeals Council denied on October 21,
In doing so, the ALJ’s decision became the
decision of the Acting Commissioner.
Plaintiff filed this action on December 1, 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 erred in failing to find Plaintiff’s post
Chiari Malformation, status post suboccipital craniotomy for
decompression of Chiari Malformation, thoracic syringohydromyelia,
and rheumatoid arthritis severe impairments; and 2) the ALJ erred
in formulating Plaintiff’s residual functional capacity (“RFC”) and
determining she was capable of work at step five by misstating
Plaintiff’s activities, not considering medication side effects,
not taking into account testimony regarding pain, and improperly
relying on the state-agency physician.
(Doc. 11 at 6.)
careful review of the record and the parties’ filings, the Court
concludes this appeal is properly denied.
Plaintiff was born on July 28, 1974, and was thirty-eight
years old on the disability onset date.
She has a high
school education, Associates Degree as a paralegal, and past
relevant work as a data entry person, paralegal, and staff
(R. 26; Doc. 11 at 2.)
In view of the extensive record presented in this case, the
Court’s summary of medical evidence primarily focuses on records
relevant to the impairments specifically at issue with Plaintiff’s
claimed errors and evidence upon which the parties rely.
Chiari Malformation and Cognitive Impairment
For many years, Plaintiff treated at Geisinger Medical Center
for symptoms related to a number of physical problems including
Chiari malformation2 and arthritis.
Consultation Notes dated August 23, 2012, indicate Plaintiff
reported that several weeks earlier she had developed head pressure
and pain on awakening which wore off in a few hours.
Several days before her office visit, the headache and pressure did
not go away--it increased in intensity and was associated with
confusion to the point that she could not do her job in billing for
Emergency Medical Services and had enough confusion for a few hours
that she could not drive and had a loss of recent memory.
After this event, the headache continued and Plaintiff felt she had
experienced a decrease in her ability to think, concentrate, and
“A Chiari malformation is a structural defect in the
cerebellum that occurs when part of the cerebellum sits below the
foramen magnum. Among the resulting complications, it can cause
problems with balance and block the flow of cerebrospinal fluid.”
(Doc. 12 at 4 n.4 (citing Chiari Malformation Fact Sheet, National
Institute of Health/National Institute of Neurological Disorders
and Stroke, available at:
remember over the preceding four to five weeks.
At a September 5, 2012, office visit with Shelly D. Timmons,
M.D., in Geisinger’s Neurosurgery Department, patient history
indicated that Plaintiff found it difficult to work because of
worsening headaches with associated concentration problems.
Rather than her regular computer and phone duties, she had
been put on light-duty filing and doing things around the office.
Dr. Timmons’ Impression was that Plaintiff’s Chiari
malformation was symptomatic, and she recommended surgical
Plaintiff had the recommended surgery on
October 18, 2012, with no complications. (R. 775-79.)
Plaintiff continued to report headaches after her surgery.
November 12, 2012, Plaintiff told Dr. Timmons that her headaches
were the same as before the surgery.
In January 2013,
Dr. Timmons reminded Plaintiff that she had been told it would take
a while to get over surgery.
Dr. Timmons noted that
Plaintiff’s reported problems were not unexpected--problems which
included decreased environmental filtering, sensory overload, an
inability to multi-task, decreased concentration, and imbalance.
Plaintiff said her symptoms were worse in the morning and
improved after about three hours.
Plaintiff told Dr.
Timmons that she could not function to focus on reports, handle
office work, and be around eleven people at work as she could
“barely do things at home in a quiet environment.”
Plaintiff felt she was improving to some degree but had reached a
Dr. Timmons’ Impression was that the symptoms were
not unexpected and should continue to improve, adding that they
“[m]ay improve and plateau several times.”
opined that Plaintiff could not yet return to work at Danville EMS
but she would anticipate an eventual return.
In May 2013, Plaintiff reported that her headaches were helped
by Advil and her neck stiffness was improving.
complaint was memory loss and difficulty concentrating.
Plaintiff said she had not been able to go back to work because she
could not function on the level of her job responsibilities.
The provider recommended referral to NeuroPsych for cognitive
evaluation secondary to memory loss and processing.
On August 30, 2013, Plaintiff saw Randy Fulton, Psy.D., and
Bradley Wilson, Ph.D., for a neuropsychological evaluation due to
memory concerns and difficulty focusing.
summarized Plaintiff’s condition as follows:
Currently, Mrs. Bennick reported that
she has had difficulty with memory and
concentration, which began within the past
year. She reported that she has had
difficulty completing tasks, is easily
distracted and unable to remember if she had
completed a previously started task (e.g.,
washing hair in the shower, putting detergent
in laundry). She also reported having a
visual sense of continuing motion after
riding in a car, stating that she must remain
still and close her eyes for a brief time
before the sensation goes away. She reported
difficulties in operating a riding lawnmower,
stating that she will often run into rocks
and trees, feeling as though she is not able
to correctly judge the distance between the
mower and the objects. She also reported
that she has a hard time finding her way in
new areas and gave an example of difficulty
maneuvering from one location to another at a
friend’s house. She also reported changes in
her ability to track information that she
reads. She used to be an avid reader but
stated that she is no longer able to read due
to “having to read the same material over and
In regard to physical complaints, Mrs.
Bennick reported that she has occasional
headaches in the occipital area, which she is
typically able to manage with Advil. She
reported that the frequency and intensity of
her headaches have reduced following her SOC
surgery. She acknowledges having some
occasional loss of balance without any
history of falls. She denied any history of
psychiatric illness or treatment.
. . . .
. . . Currently she lives with her mother and
16 year old daughter. . . . Mrs. Bennick
reported that she is able to function in her
current environment, with the use of some
compensatory strategies to complete certain
tasks. She stated that she is uncertain of
her ability to drive and return to work due
to her current symptoms.
The evaluating doctors made the following behavioral
She was alert, oriented, and understood the
purpose of the evaluation. Gait was normal.
Posture and gross motor activities were
normal. Her attention to grooming and
hygiene was good. Speech was spontaneous and
fluent, with normal prosody and intonation.
Thought processes were clear, coherent, and
goal-directed. Mood was reported as “good.”
Affect was congruent with mood and expressed
in an appropriate range. She denied having
past or present suicidal ideation. Social
comportment was intact, and she was pleasant
and cooperative with the examiners. Her
approach to testing was persistent and she
appeared to be motivated to give her best
effort based upon her focus on test stimuli,
responsiveness to instruction, and
psychometric data. Results of the present
evaluation are considered to be an accurate
depiction of her current level of
In the “Summary and Clinical Impressions” section of the
report, Dr. Fulton and Dr. Wilson indicated visual-spatial
perception presented as intact, and test results showed high
average intellectual abilities with commensurate verbal and
nonverbal abilities and average to high average reasoning and
However, overall performance
for primary memory test scores was considered low average and the
doctors noted that the discrepancy between this performance level
and the general intellectual ability was rare.
“[r]egarding etiology, results indicating inefficiencies with
memory acquisition are generaly consistent findings among those
with cerebellar dysfunction.
The patient’s report of
distractibility and poor task-completion are also consistent with
reports of those with Chiari 1 malformation.”
added that Plaintiff “may benefit from the use of compensatory
strategies and support from cognitive rehabilitation therapy to try
and help with managing encoding of information and task
They diagnosed “Mild Neurocognitive Disorder
Due to another Medical Condition.”
In addition to the
recommendations noted above, the doctors offered other suggestions
and stated that “recommended accommodations at the time of reentry
to the work place would include a gradual return, a location
minimizing distractions, opportunity for frequent breaks, and
minimizing the number of projects working at one time.”
At a primary care office visit on November 13, 2013, Plaintiff
saw Agnes S. H. Sundaresan, M.D., and reported headaches that “felt
like she was wearing a tight hat–more like pressure.”
She said she was taking 600 mg. of Advil two to three times a day
and wondered if she should take something else.
also reported cognitive and speech difficulty.
examination showed that Plaintiff was alert, healthy, and in no
distress, and no abnormal findings were noted.
Between October 2013 and September 2014, Plaintiff received
speech, cognitive and occupational therapy at Geisinger Health
South Rehabilitation Hospital.
(R. 1056-1253, 1279-1405.)
October 2013, Plaintiff was assessed to have cognitive and memory
impairments and good rehabilitation potential.
February 2014, Plaintiff expressed goals of remembering better and
returning to work.
Progress notes indicate that
Plaintiff successfully completed shopping tasks and she was able to
complete math calculations manually and with a calculator but she
continued to report difficulties with attention when tasks became
more complex and with math during daily calculations.
the March 18, 2014, Occupational Therapy session, Plaintiff’s
rehabilitation potential was noted to be fair due to the severity
of her impairment.
However, the summary indicates she
successfully completed the cognitive skills development exercises
As of April 2014, Plaintiff reported at her Geisinger
Psychiatry office visit that she continued to have head pressure
and medications had not helped her thinking or processing of
Plaintiff had just attended speech and
occupational therapy and noted that she could not answer questions
appropriately after reading a paragraph.
In May 2014, Michael Raymond, Ph.D., of Heinz Rehab Hospital
conducted an Independent Neuropsychological Evaluation.
His evaluation, which had the specific emphasis of assessing
Plaintiff’s current level of adaptive functioning, included a
review of data--office notes from Dr. Timmons, Dr. Wilson’s
evaluation, and therapy notes from the initial evaluation in
October 2014 up to January 14, 2014, progress notes.
After reviewing records, and setting out his own observations and
results of tests he administered, Dr. Raymond stated: “In summary,
the above enumerated findings, with a reasonable degree of
neuropsychological certainty, are essentially unremarkable for
noteworthy cognitive limitations 1½ years post surgical
decompression for Chiari malformation type 1.”
At her July 22, 2014, neurosurgery visit to Dr. Timmons’
office, PA Kevin Hickman noted that MRI of the brain and thoracic
spine for post-surgical follow up were stable in appearance.
Plaintiff continued to report headaches which were helped
Mr. Hickman recorded that Plaintiff’s main
complaint was memory loss and difficulty concentrating.
noted that she had been unable to go back to work because she could
not function on the level of her job responsibilities.
the “Plan” portion of the notes, Mr. Hickman stated that Plaintiff
was “unable to be gainfully employed at this point.”
Plaintiff was discharged from therapy on September 3, 2014,
because goals had been met.
Records state “Patient has
improved her attention, processing of information, calculations for
daily math tasks, and deductive reasoning.
She needs some extra
time to process information and give all aspects consideration.
She carries over recommended therapy tasks to home environment.
She has good skills to implement carryover in daily tasks.”
On October 13, 2014, Plaintiff was seen by Christian S. Greco,
D.O., of Geisinger’s Internal Medicine Department, to establish
Dr. Greco noted that Plaintiff was “currently
feeling rather well” although she said she often gets confused and
“turned around” in conversations, she was unable to read several
sentences at a time, was limited in her daily activities, was
unable to drive due to disorientation, and unable to work due to
lack of ability to focus.
Dr. Greco concluded that the
headaches were likely a combination of anatomical malformations,
anxiety, and chronic disease.
In a note dated October 16, 2014, Rachael S. Truchil, M.D., of
the Internal Medicine Department noted that she had performed a
history and physical and discussed the case with Dr. Greco.
She recorded that Plaintiff was taking clonazepam
chronically for headaches as that had been the only medication
helpful and she wanted to change the medication because of the
downsides of chronic use of the medication.
thought the headaches sounded like chronic tension headaches which
could be treatemd with low-dose nortriptyline.
On December 2, 2014, Plaintiff again saw Dr. Greco and
reported that she had been taking the amitriptyline and was feeling
much better with less frequent headaches which were less severe
when they occurred.
She also reported less of a “hazy”
Dr. Greco observed that Plaintiff was not as
symptom focused and was less confused.
Rheumatoid Arthritis and Related Impairments
As noted above, For many years, Plaintiff treated at Geisinger
Medical Center for symptoms related to a number of physical
problems including arthritis.
specifically cites very little evidence regarding her rheumatoid
arthritis and related problems.
(Doc. 11 at 3.)
She first points
to records from Geisinger Orthopaedics Department dated November
21, 2008, which indicate that Plaintiff reported she “has
rheumatoid arthritis and has had foot pain for many years.
states that the pain is refractory to conservative care and has
been referred by a podiatrist.”
The resident and
attending physicians recommended left forefoot reconstruction to
which Plaintiff consented.
After citing this evidence,
Plaintiff notes that “[d]espite the continuing issues involving
rheumatoid arthritis, the Claimant continued to work.”
(Doc. 11 at
She also points to Orthopaedic Surgery Outpatient Notes dated
December 31, 2008, indicating Plaintiff had foot reconstruction on
December 18, 2008, and had been doing well with no complaints.
In the argument section of her brief, Plaintiff notes that
she has undergone surgery for her feet and left wrist, she takes
medication for her pain which adds to her cognitive issues, her
rheumatoid arthritis causes limitation on the amount of time she
can stand and the amount she can lift, and she continued to have
treatment for the condition even after the hearing and was
scheduled for follow up surgery.
(Doc. 11 at 9 (citing R. 25, 26,
68, 69, 1552).)
Defendant points to several records which allegedly show that
Plaintiff’s arthritis pain was controlled with Humira.
6 (citing R. 731, 835, 1423).)
(Doc. 12 at
At Plaintiff’s April 25, 2013,
visit to Geisinger Family Practice in Danville, office notes
indicate the diagnoses of Rheumatoid Arthritis and Chiari 1
Notes state that Plaintiff was doing well
in general and she had done well with Humira for rheumatoid
February 4, 2014, records from the Rheumatology
Department note that Plaintiff’s only issue was wrist pain at ulnae
Plaintiff continued to take
Humira for rheumatoid arthritis, she reported no medication side
effects, and musculoskeletal examination showed normal range of
motion with prominent ulnar styloid bilaterally.
April 3, 2014, Plaintiff saw Joel C. Klena, M.D., at Geisinger’s
Orthopaedics Department complaining of bilateral wrist pain.
Dr. Klena noted that Plaintiff had rheumatoid arthritis
which was under good control with medication.
He noted that
he discussed with Plaintiff that the bilateral ulnar instability
was from her rheumatoid arthritis and he would start by treating
her with injections and a lace up brace bilaterally and eventually
she may need an ulnar resection if conservative treatment failed.
At her rheumatology appointment with Thomas P. Olenginski,
M.D., on October 13, 2014, he noted that surgery for Plaintiff’s
left wrist was planned for October 30th.
At Plaintiff’s December 2, 2014, visit with Dr. Greco, she
reported that she had no issues with the October surgery except for
mild limitations with the casting.
Dr. Greco indicated
that she would have surgery on her other wrist at some time.
He also noted that other aspects of her rheumatoid arthritis were
minimal at the time and she was continuing with Humira treatment
On June 19, 2013, Kurt Maas, M.D., a State Agency medical
consultant, concluded that Plaintiff had the severe impairments of
“Other Disorders of the Nervous System” and “Inflammatory
He completed a Residual Functional Capacity
assessment and determined that Plaintiff had the following
exertional limitations: she could occasionally lift and/or carry
twenty pounds and frequently lift and/or carry ten pounds; she
could stand and/or walk for six hours in an eight-hour workday; and
she could sit for six hours in an eight-hour workday.
also found that Plaintiff had the following postural limitations:
she could occasionally climb ramps/stairs, balance, stoop, kneel,
and crouch; and she could never climb ladders/ropes/scaffolds and
Regarding environmental limitations, Dr. Maas
noted that Plaintiff had to avoid extreme cold and avoid
concentrated exposure to vibrations, fumes, odors, dusts, gases,
poor ventialation, etc., and hazards.
that Plaintiff was capable of light work.
Dr. Maas opined
Function Report and Hearing Testimony
Plaintiff completed the Function Report on May 29, 2013,
stating that her ability to work was limited in that she was unable
to have a manual labor job because of her rheumatoid arthritis and
the Chiari malformation left her unable to do an office/mental job
because her short term memory was very bad and her long term memory
was “hit or miss.”
Plaintiff said she took care of
herself and her teenage daughter, she did some meal preparation,
she was able to do some house and yard work, and she did not drive
or go shopping in stores by herself but she did some shopping by
Plaintiff noted that she needed to post
reminders to herself and devise strategies to complete tasks.
Plaintiff said the following activities were affected by her
conditions: bending, reaching, seeing, memory, completing tasks,
concentration, understanding, and following instructions.
She added that bending and reaching increased pressure in
her head, and the remaining activities indicated were affected due
to confusion, long-term memory, disorientation, and vision issues
even while sitting.
Plaintiff said she could follow simple
written instructions if she re-read them and she did not follow
spoken instructions well because of retention and recall problems.
Plaintiff said she had no problem getting along with
authority figures, she handled stress “pretty good,” and handled
changes in routine well.
In the “Remarks” section of
the report, Plaintiff commented that the Chiari Malformation
“turned my whole world upside down” and the “loss/lack of short
term memory effects [sic] every second of my life.”
In a Supplemental Function Questionnaire concerning fatigue,
Plaintiff said she started to have fatigue when she was diagnosed
with rheumatoid arthritis in 2004.
(R. 151.) She added that some
days were worse than others and on bad days she just tried to rest.
Plaintiff said the Humira she took for arthritis did not
have any effect on her fatigue.
In a Supplemental Function Questionnaire concerning pain,
Plaintiff said her pain began in August 2012 when she went to the
emergency room and it was related to the Chiari malformation.
She described the pain as extreme head pressure, with pain
down the back of her neck to the upper back and it hurt to blink
Plaintiff said the pain was less severe than at
the onset but she had it daily and certain activities caused pain
such as stretching, bending, and lifting things.
said she was more stiff in the morning and more sore in the
At the January 21, 2015, hearing before ALJ Hardiman,
Plaintiff related background and daily activities similar to those
outlined in her Function Report.
(See R. 56-61.)
that she could stand for about thirty minutes before she would have
to sit and she could sit for about an hour before she would have to
She said she could walk a few miles.
Plaintiff reviewed her medications: she took Humira for
arthritis which worked well and she took Meloxicam occasionally
between Humira injections and that was also effective; she said the
Oxycodone and Norco were effective; the muscle relaxant Flexeril
which she took at night was effective as was the Critrulline.
Plaintiff said that her medications did not cause any side
Upon later questioning by her attorney,
Plaintiff clarified that her medications did not completely relieve
her symptoms and she had side effects like fatigue from some
medications so she just took them at night, and narcotic arthritis
medication acted “like an impairment on [her] brain.”
Plaintiff testified that she was no longer going for cognitive
therapy but she did daily exercises at home and continued to see an
occupational therapist every two weeks for her wrist.
(R. 62, 64.)
When asked about symptom aggravation, Plaintiff said arthritis
symptoms became worse if she did a lot of work or lifted ten
She said the Chiari-related symptoms became
worse if she did a lot of thinking or tried to do new things.
Plaintiff’s attorney asked about difficulties with reading,
writing, and math calculations and Plaintiff explained her
limitations in those areas: although she was capable of reading,
she had difficulty stringing thoughts together to talk about what
she read; and it was difficult and took a while for her to get her
thoughts down when writing.
ALJ Hardiman asked the VE to consider an individual of the
same age, education, and work experience as Plaintiff who had the
capacity to perform light work. However,
that light work is limited. There should be
no more than occasional bilateral upper
extremity pushing or pulling; occasional
climbing, balancing, stooping, kneeling,
crouching and crawling, but never on ladders.
There should be no bilateral overhead
reaching. There would be a need to avoid
temperature extremes, humidity, vibration,
fumes and hazards. The individual would be
limited to simple/routine tasks. Low stress
is defined as only occasional decision-making
required and only occasional changes in the
Vocational Expert Paul A. Datti (“VE”) testified that
such an individual could not do Plaintiff’s past relevant work
which included work as a data entry person and paralegal.
The VE further testified that such an individual would be able to
perform other jobs in the national economy including bakery worker
of conveyor line products, school bus monitor, or usher.
The ALJ then asked the VE to consider the first hypothetical
individual adjusted as follows: lifting and carrying reduced to ten
pounds occasionally and less than ten pounds frequently; and
sitting, standing and walking could be performed six hours in an
The VE responded that all identified
exemplary jobs would remain available for such an individual.
However, if the ALJ added that the individual would require
breaks in excess of the normal and/or unscheduled breaks, and/or be
absent more than three times per month, and/or be expected to be
off task more than twenty percent of the day, Mr. Datti responded
that no work would be available.
In her March 11, 2015, Decision, ALJ Hardiman made the
following Findings of Fact and Conclusions of Law:
The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2017.
The claimant has not engaged in
substantial gainful activity since
September 20, 2012, the alleged onset
date (20 CFR 404.1571 et seq.).
The claimant has the following severe
impairments: tension headaches;
bilateral ulnar wrist instability;
bilateral epicondylitis; right
radiocarpal arthritis; status post left
ulnar resection/autograft; distal/radial
ulnar joint arthrosis with bilateral
lateral epicondylitis and right
radiocarpal arthritis injections and
cognitive impairment (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
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b).
The claimant could occasionally use
bilateral upper extremity for pushing
and pulling. The claimant could
occasionally climb, balance, stoop,
kneel, crouch and crawl, but never on
ladders. The claimant must avoid
temperature extremes, humidity,
vibration, fumes, and hazards. The
claimant is limited to simple routine
tasks and low stress as defined as only
occasional decision making and only
occasional changes in the work setting.
The claimant is unable to perform any
past relevant work (20 CFR 404.1565).
The claimant was born on July 28, 1974
and was 38 years old, which is defined
as a younger individual age 18-49, on
the alleged disability date (20 CFR
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).
Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
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 404.1569 and
The claimant has not been under a
disability, as defined in the Social
Security Act, from September 20, 2012,
through the date of this decision (20
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.3
It is necessary for the
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
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could 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 ALJ to
analyze all probative evidence and set out the reasons for his
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d
Cir. 2000) (citations omitted).
If he 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).
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 a claimed error
would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
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
Matthews 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 erred in failing to find Plaintiff’s post Chiari Malformation,
status post suboccipital craniotomy for decompression of Chiari
Malformation, thoracic syringohydromyelia, and rheumatoid arthritis
severe impairments; and 2) the ALJ erred in formulating Plaintiff’s
residual functional capacity (“RFC”) and determining she was
capable of work at step five by misstating Plaintiff’s activities,
not considering medication side effects, not taking into account
testimony regarding pain, and improperly relying on th state-agency
(Doc. 11 at 6.)
A. Step Two Error
Plaintiff asserts the ALJ erred by failing to recognize the
Chiari malformation and rheumatoid arthritis as severe impairments
despite evidence that the conditions were severe and the error
affected the formulation of the residual functional capacity
(Doc. 11 at 6-7.)
Defendant responds that the argument
is without merit for several reasons, including that the
impairments that were deemed severe are closely related to the
impairments the ALJ deemed to be non-severe.
(Doc. 12 at 11-12.)
The Court concludes that Plaintiff has not shown that the claimed
step two errors are cause for reversal or remand.
The Court does not find error regarding the Chiari
malformation for the reasons discussed by Defendant: Plaintiff did
not show that the Chiari malformation itself met the twelve-month
durational requirement and the ALJ based her determination on a May
2013 MRI which noted a stable syrinx and satisfactory appearance of
the foramen magnum following the surgery as well as Plaintiff’s
follow-up exam with the neurosurgeon who reported normal objective
physical examination findings post surgery; and the ALJ found the
residuals of headaches and cognitive issues related to the Chiari
malformation to be severe impairments.
(Doc. 12 at 14, 16 (citing
Further, because an error may be deemed harmless where
the ALJ considered the established functional limitations when the
inquiry proceeded beyond step two, Rutherford, 399 F.3d at 553, and
because Plaintiff does not point to any functional limitations
related to the Chiari malformation other than the headaches and
cognitive issues recognized, any error related to the Chiari
malformation itself or the October 2012 surgery would be harmless.
Plaintiff’s claimed error regarding rheumatoid arthritis (RA)
would similarly be deemed harmless because she does not point to
any functional limitations which were not considered by the ALJ.
The ALJ specifically considered RA-related problems to be severe:
bilateral ulnar wrist instability, bilateral epicondylitis, right
radiocarpal arthritis, status post ulnar resection/autograft,
distal/radial ulnar joint arthrosis with bilateral epicondylitis
and right radiocarpal arthritis injections.4
general RA limitations noted in Plaintiff’s brief allegedly result
from medication for chronic pain which adds to her cognitive issues
and limitations on the amount of time she can stand and the amount
she can lift.
(Doc. 11 at 9-10.)
As noted above, the ALJ found
Plaintiff’s cognitive issues severe and Plaintiff does not show
that the medication related issues are different in kind from those
considered by the ALJ.
The ALJ’s consideration of standing and
lifting limitations is evident in her RFC assessment that Plaintiff
was capable of a limited range of light work.5
The link between specific issues and RA is documented in
the medical records. (See, e.g., R. 1425.)
20 C.F.R. § 404.1567 provides the following definition of
Light work involves 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
Because Plaintiff has not shown that any alleged step two
error would be harmful, she has not shown that remand is required
for reconsideration of the categorization of Plaintiff’s Chiari
malformation and rheumatoid arthritis.
See Rutherford, 399 F.3d at
Residual Functional Capacity and Step Five Error
Plaintiff asserts that the ALJ “committed numerous errors in
formulating the RFC . . . and determining she was capable of work
at Step Five of the Sequential Analysis.” (Doc. 11 at 10.)
Plaintiff identifies the following specific errors: misstatement of
Plaintiff’s capabilities; improper consideration of medication
side-effects; improper consideration of subjective complaints of
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. If
someone can do light work, we determine that
he or she can also do sedentary work, unless
there are additional limiting factors such as
loss of fine dexterity or inability to sit
for long periods of times.
20 C.F.R. § 404.1567(b). Social Security Ruling 83-10, 1983 WL
31251 (S.S.A.), provides additional guidance and definitions for
terms used in the regulations cited:“frequent” in the light work
context means from one-third to two-thirds of the time; “[s]ince
frequent lifting or carrying requires being on one’s feet up to
two-thirds of a workday, the full range of light work requires
standing or walking, off and on, for a total of approximately six
hours of an 8-hour workday.” Id. at *5-6.
pain; and improper reliance on the State Agency consultant.
Defendant responds that the RFC assessment is supported
by substantial evidence and the ALJ properly relied on Dr. Maas’s
(Doc. 12 at 17-26.)
The Court concludes that Plaintiff
has not shown error on the bases alleged.
Plaintiff first argues the ALJ misstated her capabilities in
formulating her RFC.
(Doc. 11 at 10.)
She begins this argument by
quoting/citing ALJ Hardiman’s findings at step three regarding
whether Plaintiff’s mental impairment met or equaled the criteria
of listing 12.02.
(See R. 19-20.)
This is a separate inquiry from
the RFC which is used at steps four and five.
specifically stated that the limitations considered “are not a
residual functional capacity assessment but are used to rate the
severity of mental impairments at steps 2 and 3 of the sequential
Plaintiff does not claim error at
step three and her reliance on findings made at that stage of the
evaluation process do not support her claimed RFC error.
Plaintiff also provides a table comparing the “ALJ’s Findings”
and “Contrary Evidence.”
(Doc. 11 at 11.)
A comparison of the ALJ
findings made in the course of her RFC assessment (step three
findings excluded (see id. at 11 (citing R. 20)) and “Contrary
Evidence” shows that the “contrary” evidence is better
characterized as evidence providing detail and background relevant
to the ALJ’s finding.
For example, the ALJ’s finding that
Plaintiff “performs her own self-care and does chores” is not
inaccurate because she relies on compensatory strategies to
accomplish some aspects of care and chores–-the latter explain how
she performs the former.
Importantly, Plaintiff does not show that
any of the findings made in the course of the RFC assessment are
Following the table, Plaintiff makes the conclusory statement
that “[a] proper review of the evidence would have lead to a
conclusion the Claimant was incapable of any substantial gainful
(Doc. 11 at 12.)
Plaintiff cites no opinion or
evidence which supports this conclusion and does not attempt to
show how the “contrary evidence” establishes that she is unable to
perform a limited range of light work with restrictions including a
limitation “to simple routine tasks and low stress” (R. 21).
Further, Plaintiff’s conclusion that a proper review of the
evidence would have shown that she was incapable of any substantial
gainful activity does not take into account the August 30, 2014,
diagnosis of Dr. Fulton and Dr. Wilson that Plaintiff had “Mild
Neurocognitive Disorder Due to another Medical Condition” (Doc. 103 at 35 (emphasis added)).
Plaintiff does not reference the fact
that the doctors’ recommendations included work reentry strategies.
ALJ Hardiman’s review of the record in many instances
provides the detail which Plaintiff cites as contrary. (See R. 2226.)
(See R. 894.)
Plaintiff also fails to acknowledge that records
show that she experienced improvement with cognitive rehabilitation
which began in October 2013 (R. 1061) and continued into September
2014 when she was discharged (to continue a home program) with
therapy goals met.
Though not relied upon by the
ALJ, the complete review of the record evidence suggested by
Plaintiff (Doc. 11 at 12) would include Dr. Raymond’s May 2014
evaluation in which he stated that the “current evaluation does not
suggest or support ‘mild cognitive impairment’” (R. 1268) and that
his findings were “essentially unremarkable for noteworthy
cognitive limitations at 1½ years post surgical decompression” (R.
This contextual review of Plaintiff’s claimed error
regarding the ALJ’s statements about Plaintiff’s capabilities shows
that Plaintiff has not met her burden of showing error requiring
reversal or remand.
Medication Side Effects
Plaintiff contends the ALJ did not properly consider the side
effects of her medication.
(Doc. 11 at 12.)
that there is scant support in the record for debilitating side
(Doc. 12 at 22.)
The Court concludes Plaintiff has not
shown that reversal or remand are warranted on the basis of the
ALJ’s consideration of the effects of medication.
In her very brief analysis of this issue, Plaintiff cites a
Ninth Circuit case in support of the propositions that the effects
of medication can have a significant impact on the ability to work,
side effects should be considered in the disability determination
process, and a claimant’ subjective testimony about side effects
“should not be trivialized.”
(Doc. 11 at 12 (citing Varney v.
Sec’y of HHS, 846 F.2d 581, 585 (9th Cir. 1988)).)
Stewart v. Sec’y of Health, Educ., & Welfare, 714 F.2d 287, 290 (3d
Cir. 1983)), in support of the assertion that an ALJ must
specifically explain why she rejected testimony concerning
medication side effects.
(Doc. 11 at 12.)
summarily concludes that the ALJ failed to properly consider
medication side effects and the matter must be remanded for proper
consideration of the issue.
(Doc. 11 at 12-13.)
Plaintiff’s conclusory assertion does not satisfy her burden
of showing error on the basis alleged.
Accepting the legal
framework identified by Plaintiff, Plaintiff does not show how the
ALJ ran afoul of the relevant guidance.
Plaintiff does not
acknowledge that ALJ Hardiman provided reasons for her
determination: the ALJ noted Plaintiff’s testimony that her
medications do not cause side effects and her later testimony that
they made her tired and caused cognitive issues; the ALJ then
proceeded to contrast the latter testimony with medical records
stating that they “do not support that she has reported any
significant side effects from her medications or sought changes to
them based on side effects.”
Importantly, Plaintiff does
not refute the ALJ’s assessment of the medical records on this
(See Doc. 11 at 12-13.)
Therefore, Plaintiff has not
shown that ALJ Hardiman’s consideration of the effects of
Plaintiff’s medication is cause for remand.
Subjective Complaints of Pain
Plaintiff next maintains that the ALJ did not properly
consider Plaintiff’s complaints of pain.
(Doc. 11 at 13.)
Defendant responds that the ALJ’s decision not to fully credit
Plaintiff’s complaints of pain is supported by the record.
12 at 23.)
The Court concludes Plaintiff has not met her burden of
showing error in the ALJ’s pain assessment.
Plaintiff lists her medical conditions and provides one
citation to the Operative Report of her October 2012 surgery. (Doc.
11 at 13-14 (citng R. 777).)
Without citation to the record,
Plaintiff states that she routinely complained of headaches and
related symptoms and has undergone surgery to address arthritic
(Id. at 14.)
Importantly, the ALJ did not find
Plaintiff symptom-free: she noted Plaintiff’s testimony about the
effectiveness of pain medications (R. 23, 25) and acknowledged her
previous and future surgeries related to arthritis (R. 24-25, 26).
As many decisions in the Third Circuit have noted, a claimant “need
not be pain-free to be found ‘not disabled’ especially when her
work issue requires a lower exertional level.”
Morel v. Colvin,
Civ. A. No. 14-2934, 2016 WL 1270758, at *6 (D.N.J. Apr. 1, 2016)
(citing Lapinski v. Colvin, Civ. A. No. 12-02324, 2014 WL 4793938,
at *19 (M.D. Pa. Sept. 24, 2014)); Pettway v. Colvin, Civ. A. No.
14-6334, 2016 WL 5939159, at *19 (E.D. Pa. Apr. 8, 2016); see also
Welch v. Heckler, 808 F.2d 264, 279 (3d Cir. 1986) (facts which
supported the conclusion that pain may be constant and
uncomfortable did not support the conclusion that it was disabling
Although the Court agrees with Plaintiff that subjective
complaints of pain must be seriously considered (Doc. 11 at 13
(citing Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981);
Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985))), and should
not be discounted without contrary medical evidence (id. (citing
Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984); Smith, 637
F.2d at 972, Ferguson, 765 F.2d at 37)), here Plaintiff has not
shown that the ALJ did not seriously consider her complaints of
To the extent Plaintiff infers that she complained of
disabling pain, she has not presented evidence which contradicts
ALJ Hardiman’s finding that Plaintiff’s pain was not disabling.
Thus, Plaintiff has not met her burden of showing error on the
State Agency Opinion
Plaintiff argues that ALJ Hardiman improperly relied on the
opinion of the State Agency medical consultant, Dr. Maas.
Defendant responds that the ALJ properly relied on this
(Doc. 12 at 24.)
The Court concludes Plaintiff has not
shown that this alleged error is cause for reversal or remand.
As noted by the ALJ, the record does not contain any medical
opinions from Plaintiff’s treating physician or other evaluating
Although Plaintiff correctly states that Dr.
Maas did not have her complete medical file and she had significant
medical treatment after he rendered his opinion in June 2013 (Doc.
11 at 14), she does not acknowledge that the ALJ recognized Dr.
Maas’s limited review and she concluded that the later evidence
supported additional limitations “including push/pull, reach and
mental limitations which have been afforded to address claimant’s
non-severe and severe impairments and her subjective complaints.”
Because the ALJ did not simply rely on Dr. Maas’s opinion
in formulating the RFC, Plaintiff must do more than assert the
blanket criticism set out in her brief.
Plaintiff’s additional assertion that the ALJ committed
reversible error by failing to address the medical opinions of Dr.
Wilson, Dr. Fulton, and Dr. Timmons (Doc. 11 at 15) does not
present cause for reversal or remand.
First, Plaintiff presents
absolutely no supporting argument with this statement.
Importantly, to the extent that the evaluation from Dr. Fulton and
Dr. Wilson is considered an opinion, their report did not opine
that Plaintiff had deficits which rendered her unable to engage in
substantial gainful activity and they did not make findings
inconsistent with performing a limited range of light work which
included the limitation to simple routine tasks and low stress.
(See R. 21, 891-94.)
They diagnosed “Mild Neurocognitive Disorder
Due to another Medical Condition”–-a diagnosis which does not ipso
facto render an individual disabled for Social Security purposes.
Their recommendations included strategies which could be
used “at the time of any reentry to the work place” (R. 894) but
provided no information as to when they thought that would or could
Although discussion of an alleged opinion from Dr. Timmons is
not warranted in that Plaintiff does not provide a citation to any
record evidence (see Doc. 11 at 15), the Court notes that in
January 2013 Plaintiff told Dr. Timmons that she could not function
to focus on reports, handle office work, and be around eleven
people at work as she could “barely do things at home in a quiet
environment” (R. 692), and Dr. Timmons opined that Plaintiff could
not yet return to work at Danville EMS but she would anticipate an
eventual return (R. 693).
This opinion does not point to error in
ALJ Hardiman’s RFC–-at most, Dr. Timmons opined that Plaintiff
could not perform her past relevant work in January 2013 and ALJ
Hardiman concluded that Plaintiff remained unable to perform her
past relevant work as of April 2015 (R. 26).7
In July 2014, Dr. Timmons’ PA, Kevin Hickman, noted that
Plaintiff had been unable to go back to work because she could not
function on the level of her job responsibilities. (R. 1463.) In
As Plaintiff has not shown the ALJ erred in relying on the
State Agency consulting physician, the alleged error is not cause
for reversal or remand.
For the reasons discussed above, the Court concludes
Plaintiff’s appeal of the Acting Commissioner’s decision is
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: July 11, 2017
the “Plan” portion of the notes, Mr. Hickman stated that Plaintiff
was “unable to be gainfully employed at this point.” (R. 1464.)
This evidence does nothing to support Plaintiff’s claimed
error because it is not an opinion rendered by Dr. Timmons and the
only information in the office notes associated with employment
which could be considered supportive of Mr. Hickman’s statement
regarding Plaintiff’s inability to be gainfully employed is
Plaintiff’s report that she could not function on the level of her
former job responsibilities. (R. 1463.) ALJ Hardiman did not find
that Plaintiff could return to that job and limited her to a job
with a lower level of responsibility. (R. 21-26.) Therefore, even
a generous interpretation of Mr. Hickman’s comments would not
support Plaintiff’s claimed error.
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