Showalter v. Colvin

Filing 16

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 8/24/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GLEN STETLER SHOWALTER,

:
:CIVIL ACTION NO. 3:17-CV-0027
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act and Supplemental Security
Income (“SSI”) under Title XVI.

(Doc. 1.)

Plaintiff filed

applications for benefits on September 11, 2013, alleging a
disability onset date of May 26, 2010.

(R. 18.)

After he appealed

the initial denial of the claims, a hearing was held on July 14,
2015, and Administrative Law Judge (“ALJ”) Randy Riley issued his
Decision on July 24, 2015, concluding that Plaintiff had not been
under a disability during the relevant time period.

(R. 26.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on November 8, 2016.

(R. 1-6.)

In doing so, the

ALJ’s decision became the decision of the Acting Commissioner.

(R.

1.)
Plaintiff filed this action on January 5, 2017.

(Doc. 1.)

asserts in his supporting brief that the Acting Commissioner’s

He

determination should be reversed or remanded for the following
reasons: 1) the RFC assessment was inadequate because it failed to
include all of Plaintiff’s limitations of record; 2) the ALJ erred
by giving Plaintiff’s treating physician’s opinions limited weight;
and 3) the ALJ erred by relying on the absence of aggressive
medical treatment to discount Plaintiff’s credibility.
3.)

(Doc. 13 at

After careful review of the record and the parties’ filings,

the Court concludes this appeal is properly denied.
I. Background
Plaintiff was born on September 11, 1966, and was forty-three
years old on the alleged disability onset date.

(R. 24.)

He has a

high school education and past relevant work as a maintenance
technician.
A.

(R. 24.)

Medical Evidence
In February 2010, Plaintiff was seen by Joseph E. Alhadeff,

M.D., of Orthopaedic and Spine Specialists at the request of Mark
Catterall, M.D., for right elbow pain, stiffness, and swelling.
(R. 252-54.)

Dr. Alhadeff diagnosed bursitis, gout, and possible

tendonitis and injected Plaintiff’s elbow at the first visit.
254.)

(R.

At his follow-up visit, Dr. Alhadeff recorded that the elbow

was much better and he encouraged Plaintiff to do exercises
to prevent recurrence.

(R. 252.)

Plaintiff was seen at Manchester Family Medicine on July 30,
2010, for complaints of back pain and lumbar stiffness in the

2

morning for the preceding two months.

(R. 273.)

Notes indicate

that x-ray and MRI were done at Dr. Catterall’s office.

(Id.)

Notes were signed by Jeffrey Perry, D.O., who specializes in family
practice.1
On August 6, 2010, Plaintiff was seen by K. Nicholas
Pandelidis, M.D., of Orthopaedic and Spine Specialists at the
request of Jeffrey Perry, D.O., because of low back problems.
250.)

(R.

By history, Dr. Pandelidis recorded that Plaintiff
twisted his back at work about 8 weeks ago.
He apparently was on some type of motor
scooter and lost control of the scooter and
twisted his back. He has been having an
aching pain in the mid to upper lumbar
region. The pain is worse with activities.
The pain does improve with rest. He had a
course of therapy without much improvement.
He is not using any medications currently.
He has been working 4 hour[] shifts instead
of the usual 12 hour shifts.

(Id.)

Physical examination findings were normal except back

examination showed moderately decreased range of motion and mild
upper lumbar tenderness.

(Id.)

X-rays showed moderate upper

lumbar degenerative changes with no evidence of a destructive
process or fracture.

(Id.)

Dr. Pandelidis diagnosed work-related

back pain with irritation of pre-existing underlying degeneration.

1

Although the signature is not legible on any office notes
from Manchester Family Practice, the identity of the signature with
that of Dr. Perry on the Medical Source Statement of Ability to Do
Work-Related Activities (Physical) (R. 286) and Pain Limitation
Questionnaire (R. 287), indicates that he was the provider at all
visits.
3

(Id.)

Dr. Pandelidis found “no evidence that he has sustained an

injury that should leave him with any permanent impairment or
dysfunction.”

(Id.)

exercise regimen.

His treatment plan was symptom care and an

(Id.)

“Work Status” indicated that Plaintiff

would be kept on four-hour shifts for another week and then
increase the shifts to six hours with further work status
assessment to be done at Plaintiff’s next visit.

(Id.)

At a Central PA Rehabilitation Services Assessment on August
13, 2010, Plaintiff indicated that he had had back pain since his
May 26, 2010, work injury, he had some physical therapy which
helped to some degree, and the pain never really went away.

(R.

262.)
At his August 25, 2010, follow-up visit, Dr. Pandelidis noted
that Plaintiff reported that his employer would not allow him to
return to work.

(R. 248.)

Physical examination showed that

Plaintiff appeared more comfortable and had better mobility, he had
an element of tenderness but no spasm, he had no lower extremity
weakness, hip rotation and leg raise were well tolerated, his
stance was upright, and his gait was good.

(Id.)

Dr. Pandelidis

noted that Plaintiff could return to work unrestricted the
following week.

(Id.)

August 31, 2010, physical therapy notes indicate that
Plaintiff had progressed with decreased pain levels and slight
improvement with function.

(R. 265.)

4

Notes also show that

Plaintiff was advised about the importance of exercises.

(Id.)

On September 16, 2010, Plaintiff saw Steven Triantafyliou,
M.D., of Orthopaedic and Spine Specialists with complaints of
midback pain.

(R. 246.)

Plaintiff reported that his symptoms were

aggravated with activities, bending, twisting, prolonged standing,
walking, car riding, coughing, and sneezing.
reported that rest helped his symptoms.

(Id.)

(Id.)

He also

Plaintiff rated his

pain on an average day at three out of ten with the best day being
one and the worst ten.

(Id.)

Physical examination showed stooped

posture, slow and guarded gait, some difficulty with toe and heel
walking secondary to pain, tenderness of the paraspinal area of the
lower thoracic and upper lumbar region, some paraspinal muscle
spasm, and range of motion of the lumbar spine limited to about
fifty percent of normal including limitation in flexion, bending,
and rotation.

(R. 246.)

Dr. Triantafyliou noted that

musculoskeletal exam showed good range of motion of all joints in
upper and lower extremity, and no atrophy or instability and
neurological exam showed that motor testing was 5/5 in all muscle
groups.

(R. 247.)

Dr. Triantafyliou reviewed diagnostic studies:

MRI scan of June 18, 2010, showed no HNP or stenosis in the lumbar
spine and no other problems were noted; limited view of the
thoracic spine showed some dehydration changes to T10-11 and T1112, mild at T12-L1 with associated Schmorl’s node; x-rays of the
lumbar spine done on August 10, 2010, showed disc heights to be

5

well-maintained.

(Id.)

He diagnosed midback pain, thoracic

strain, and thoracic disc disease and recommended follow up after
MRI of the thoracic region.

(Id.)

On September 20, 2010, Plaintiff had MRI of the thoracic spine
which showed “[m]ultilevel intervertebral disc degeneration without
evidence of significant focal canal or foraminal encroachment.
suspicious intrinsic cord lesion identified.
in T3.”

No

Incidental hemangioma

(R. 255.)

At his visit with Dr. Triantafyliou on October 5, 2010,
Plaintiff continued to complain of similar back symptoms.
245.)

(R.

Physical examination showed generalized tenderness of the

lumbar spine and thoracic spine with sensation, reflexes and motor
strength normal, and provocative tests negative.

(Id.)

Dr.

Triantafyliou commented that the September 20th MRI showed
degenerative changes but no herniations, fractures, or destructive
lesions.

(Id.)

Dr. Triantafyliou explained to Plaintiff that a

mild sprain type of injury like his as well as aggravation of preexisting thoracic disc disease did not present any need for
surgical intervention.

(Id.)

He recommended FCE (functional

capacity evaluation) to assess Plaintiff’s abilities and planned to
see Plaintiff afterwards.

(Id.)

Plaintiff was evaluated by Jessica Haag, DPT (doctor of
phsyical therapy), on October 22, 2010.
that

6

(R. 258-61.)

She reported

[f]unctional testing revealed that Mr.
Showalter is presently lifting in the medium
category of work as demonstrated by his
occasional floor to knuckle lift of 70
pounds, knuckle to shoulder lift 60 pounds,
floor to shoulder lift 60 pounds, 40-foot
lift and carry of 40 pounds. . . . testing
was ended due to client requesting stop
testing secondary to pain and fatigue.
(R. 259.)

Dr. Haag found that Plaintiff could perform the

following activities occasionally (up to 33% of the day): standing,
walking, repetitive binding, stooping, squatting, crouching,
kneeling, crawling, climbing, overhead reaching, and repetitive
leg/arm movement.

(R. 258.)

She also found that he could

frequently (34-66% of the day) sit and forward reach.

(Id.)

Musculokeletal Evaluation revealed the following:
Posture: Client sits with a forward flexed
posture. He has notable increased thoracic
spine kyphosis.
Gait: Client ambulates with a wide base of
support and a forward flexed posture.
Range of Motion: Lumbar spine flexion 46
degrees, extension 10 degrees, right lateral
flexion 14 degrees, left later flexion 19
degrees, thoracic spine flexion 27 degrees,
extension 2 degrees.
Strength: Bilateral lower extremity strength
5/5. Core muscle strength rated fair.
Neurological: Client is intact to light touch
throughout bilateral lower extremities.
Flexibility: Client has moderate flexibility
limitations in bilateral lower extremities.
Soft Tissue Assessment: Client has no areas
of tenderness to palpation of the lumbar or
thoracic spine and no muscle spasms.
Special Tests: Client has a negative straight
leg raise and slump test bilaterally.
(R. 260.)

7

At a Manchester Family Medicine checkup on November 2, 2011,
it was noted that Plaintiff needed refills on medications.
272.)

(R.

Musculoskeletal examination findings indicate no

paravertebral spasm and no tenderness.

(Id.)

Assessment was

hypertension.
Plaintiff again saw Dr. Triantafyliou for follow-up and FCE
review on Novmeber 2, 2010.

(R. 243.)

Physical examination showed

that Plaintiff had some generalized tenderness in the lumbar spine
and some muscle spasm with no other problems noted.

(Id.)

Regarding his FCE, Dr. Triantafyliou reported that “[b]asically he
fails in the medium work category.”

(Id.)

He gave Plaintiff

routine back instructions, discussed activities, and noted that he
planned to see Plaintiff in three months.

(Id.)

On December 21, 2010, Plaintiff was seen at Manchester Family
Medicine reporting ear drainage for a week and a half.

(R. 271.)

No musculoskeletal or neurological physical findings were recorded.
(Id.)
At his February 15, 2011, visit with Dr. Triantafyliou,
Plaintiff continued to complain of back pain, reporting that he had
good days and bad days and his symptoms were aggravated with
activity.

(R. 242.)

Dr. Triantafyliou again reported generalized

tenderness in the lumbar spine and some muscle spasm and intact
neurological exam.

(Id.)

The recorded “Plan” included that

Plaintiff should “[c]ontinue on medium work restrictions” with

8

follow-up in three to four months.

(Id.)

On February 16, 2011, Plaintiff visited Manchester Family
Medicine with complaints of headaches over the preceding two
months, including four days the preceding week.

(R. 270.)

Plaintiff noted they seemed to be associated with his back problem.
(Id.)

No neurological or physical examination findings were

recorded.

(Id.)

and hypertension.

Assessment was headache, sinusitis, TM rupture,
(Id.)

At a routine follow-up for hyptension on March 1, 2011,
Plaintiff continued to complain of headaches.

(R. 268.)

No

neurological or physical examination findings were recorded.
Assessment was hypertension, hyperlipidemia, and migraine.

(Id.)
(Id.)

Plaintiff was seen by Brian Koons, PA-C, at Orthopaedic &
Spine Specialists on June 17, 2011.

(R. 2440-41.)

Plaintiff was

seen by Mr. Koons because Dr. Triantafyliou was on vacation and
Plaintiff wanted a note to be off work until his follow-up
appointment with Dr. Triantafyliou.

(R. 240.)

Plaintiff explained

that he had returned to work on light duty the previous day afer
being off for a year.

(Id.)

He said that part of his job was

cleaning cabinets close to the floor and, when he got home, he had
severe pain in the lumbar spine region.

(Id.)

Plaintiff added

that his work wanted Dr. Triantafyliou to reevaluate him.

(Id.)

He reported constant pain radiating down into his tailbone, he
denied numbness or tingling sensations but noted nocturnal
9

disturbances.

(Id.)

Physical exam showed generalized tenderness

in the midline and paraspinal areas of the thoracic and lumbar
spine region, with lower extremity strength and sensation intact
and negative straight leg raise tests.

(Id.)

Mr. Koons noted that

he would keep Plaintiff out of work that night and allow him to
return after that with sedentary work restrictions.

(R. 421.)

He

also noted that Plaintiff would see Dr. Triantafyliou the following
week.

(Id.)

Plaintiff saw Dr. Triantafyliou on June 21, 2011.

(R. 239.)

Dr. Triantafyliou’s physical findings were similar to earlier
visits.

(Id.)

He reported that he gave Plaintiff reassurance and

restrictions would be based on the FCE.

(R. 239.)

On August 9, 2011, Dr. Triantafyliou recorded that Plaintiff
had run out of medications and he renewed prescriptions for
Tramadol and Mobic.

(R. 238.)

Physical examination was similar

with decreased range of motion (50-75% of normal) also noted.
(Id.)

Dr. Triantafyliou stated that restrictions remained the

same.

(Id.)

At Plaintiff’s September 13, 2011, office visit, Dr.
Triantafyliou noted that Plaintiff had had a “a little bit of a
setback and it is starting to settle down.”

(R. 237.)

He

commented that Tramadol was causing Plaintiff headaches and Mobic
did not seem to be helping much so he changed Plaintiff’s
medication s to Soma and Relafen.

10

(Id.)

Dr. Triantafyliou again

noted that work restrictions would remain the same and he would see
Plaintiff again in three to four months.

(Id.)

A Workers’ Compensation Status Report dated September 13,
2011, signed by Dr. Triantafyliou noted that Plaintiff could return
to work with restrictions: he could occasionally lift less than
seventy pounds floor to waist and less than sixty pounds waist to
shoulder; he could occasionally carry less than forty pounds; he
could frequently reach forward and overhead; he could occasionally
sit up to eight hours a day, stand up to eight hours a day, and
walk up to eight hours a day; he could occasionally stoop/bend,
kneel, crouch/squat, crawl, climb ladders/stairs, and rotate/twist.
(R. 256.)
temporary.

Dr. Triantafyliou noted that the restrictions were
(Id.)

Orthopaedic & Spine Specialists sent Plaintiff a letter on
January 11, 2012, reminding him it was time to be seen for followup and asking him to schedule an appointment.

(R. 257.)

June 14, 2012, office notes from Manchester Family Medicine
indicate that Plaintiff came in to discuss disability related to
his back injury which had occurred two years earlier.

(R. 267.)

No neurological or musculoskeletal examination findings were
recorded.
Assessment.

(Id.)

“Thoracic Disk DG” was included in the

(Id.)

Plaintiff was seen for orthopaedic consultation by Peter J.
VanGiesen, M.D., of OSS Health on November 18, 2013.

11

(R. 274.)

The evaluation was at the request of the Bureaus of Disability
Determination.

(Id.)

Plaintiff described his pain

in the thoracic and lumbar spine as an 8,
which is involving sharp, dull, stabbing,
throbbing, aching, burning pain which comes
and goes, associated with tingling in the
back. It seems to be unchanged. Symptoms
made worse by standing, walking, lifting,
exercise, twisting, bending, lying in bed,
squatting, kneeling, stairs, and sitting, and
made better by no measures. He wishes to use
topical creams such as Voltaren gel and
Pennsaid to his back for relief.
(Id.)

Objective neurological examination showed sensation grossly

intact to light touch and 1+ deep tendon reflexes bilaterally.
(Id.)

Musculoskeletal examination showed forward flexion 0 to 80

degrees, lateral flexion 0 to 10 degrees, deep tendon reflexes at
the patella and Achilles 1+ bilaterally, negative sitting root test
with antalgic to labored gait, and pain primarily at the thoracic
and lumbar junction.

(Id.)

Dr. VanGiesen assessed the following:

Degenerative Disc, L/LS Spine; Pain Low Back; Degenerative Disc,
T/TL Spine; and Thoracic Back Pain.

(Id.)

The Care Plan indicated

patient education and smoking cessation information.

(Id.)

On April 26, 2015, Dr. Perry completed a Medical Source
Statement of Ability to Do Work-Related Activities (Physical) and
Pain Limitation Questionnaire.

(R. 281-86, 287.)

He opined that

Plaintiff could lift and carry up to ten pounds occasionally and
never lift over that.

(R. 281.)

Dr. Perry did not identify any

medical or clinical findings to support his assessments or

12

otherwise explain the identified limitations.

(Id.)

He opined

that Plaintiff could sit for one hour without interruption, and
could stand/walk for five to thirty minutes without interruption.
(R. 282.)

He further opined that Plaintiff could sit for a total

of three hours in an eight-hour day and could stand/walk for a
total of one hour in an eight-hour day.

(Id.)

Dr. Perry noted

that Plaintiff would be lying down for the remainder of the eight
hours.

(Id.)

Regarding standing/walking/sitting, Dr. Perry

indicated his findings were supported by chronic low back pain,
degenerative disc, uncontrolled blood pressure of 199/99 on April
24, 2015, and uncontrolled hyperglycemia on February 28, 2014.2
Dr. Perry found that Plaintiff could never push/pull, he could
occasionally reach, handle, and finger, and he could frequently
feel.

(R. 283.)

He explained these limitations with the notation

that “with his back pain, he is limited in what he can do without
exacerbating his pain.”

(Id.)

Regarding the use of his feet, Dr.

Perry concluded that Plaintiff could never operate foot controls
because repetitious foot functions cause back pain.

(Id.)

He

found that Plaintiff could occasionally climb stairs and ramps but
he could never climb ladders or scaffolds, balance, stoop, kneel,
crouch, or crawl because these activities could cause flare ups of
his back symptoms.

(R. 284.)

Environmental limitations included

2

The record does not contain office visit notes from any
visits in February 2014 or April 2015.
13

no exposure to unprotected heights, extreme heat or cold and
vibrations, and occasional exposure to moving mechanical parts,
operating a motor vehicle, humidity and wetness, and dust, odors,
fumes and other pulmonary irritants.

(R. 285.)

Dr. Perry noted

that Plaintiff was able to shop, use standard public
transportation, climb a few steps at a reasonable pace using a hand
rail, prepare simple meals, care for his personal hygiene and sort,
handle and use paper files but he could not walk a block at a
reasonable pace on rough or uneven surfaces.

(R. 286.)

Dr. Perry

indicated that limitations assessed had lasted or would last for
twelve consecutive months.

(Id.)

In the Pain Limitation Questionnaire, Dr. Perry indicted that
pain prevented Plaintiff from performing his past work, it
interfered with his concentration, persistence, or pace, he
experienced good days and bad days due to pain, it would likely
cause him to miss work at least two full days per month, it would
cause significant interference with his social relationships at
work, and it was likely to continue for at least twelve months.
(R. 287.)

He added that pain would negatively impact productivity

by greater than 20-25% on a bad day.

Dr. Perry also indicated that

an objective source had been identified which medically and
reasonably explained the pain, i.e., x-rays and orthopedic exam.
(Id.)
At his office visit with Dr. Perry on July 24, 2015,

14

musculoskeletal examination showed the following: Plaintiff had no
muscle aches, weakness, or cramps; he had no arthralgias, joint
pain or swelling of the extremities; he had no difficulty walking;
and he had back pain.3

(R. 290.)

indicate any pain medication.

Medication review does not

(R. 289, 291.)

Dr. Perry assessed

hypertension, hyperlipidemia, and diabetes mellitus.
B.

(R. 292-93.)

Hearing Testimony
Plaintiff, who was represented by an attorney, and Vocational

Expert Brian Bierley testified at the hearing on July 14, 2015.
(R. 30-56.)

Plaintiff stated that he graduated from high school

and had vocational training in commercial and residential wiring.
(R. 34.)

When asked how he supported himself, Plaintiff said that

his wife worked and he got $400 a month from his nephew who lived
with him.

(Id.)

Plaintiff reported that he needed some help with

showering lower extremities, he did not cook, he did limited
grocery shopping, he did not do housework, he was able to drive, he
did not climb stairs or ladders, he could walk about three hundred
feet, he could stand for fifteen minutes before he had to sit, he
could sit for about the same period of time before he had to get
up, and

he took several naps a day.

(R. 35-38.)

took several medications but not for his back.

Plaintiff said

(R. 38.)

Upon

questioning by his attorney, Plaintiff clarified that he only

3

This office visit took place the same day ALJ Riley issued
his Decision and records from the visit were not considered by the
ALJ. (See R. 26, 29.)
15

drives limited distances, like the twenty to twenty-five minutes to
the hearing and hitting potholes in the roads aggravated his back.
(R. 40.)
Plaintiff testified that he treated with Dr. Perry roughly
every three months.

(R. 48-49.)

He said he stopped seeing Dr.

Triantafyliou because “he didn’t see anything in the film and stuff
to indicate any problems.”

(R. 49.)

Plaintiff said there was

definitely something wrong and he and his wife decided they needed
an answer.

(Id.)

Plaintiff testified that Dr. Triantafyliou did

not offer him any treatment that he did not want to do.

(R. 49-

50.)
ALJ Riley asked Vocational Expert Brian Bierley (“VE”) to
consider an individual of Plaintiff’s age, education, and work
experience who could do “[l]ight work, stand walk limitation of two
hours, should be allowed to be able to sit, alternate positions
between sitting and standing every 20 minutes, occasional stairs,
balance stoop, kneel, crouch, crawl, never any ladders, and avoid
exposure to hazards.”

(R. 51.)

The VE testified that such an

individual could not do Plaintiff’s past job but other types of
employment would be available such as small products assembler and
electrical accessories assembler.

(Id.)

The VE stated that

examples of sedentary work available included final assembler.
(Id.)

When the ALJ added the limitations that the individual would

not be able to engage in sustained work activity on a regular

16

continuing basis for eight hours a day, five days a week, for a
forty hour week, the VE stated that no jobs would be available.
(R. 52.)
Upon questioning by Plaintiff’s attorney, the VE stated the
following: an individual who was unable to maintain an 85% level of
productivity at minimum would not be able to maintain employment;
if the ALJ were to find that the individual could sit for a total
of three hours, stand for one hour, and walk for one hour in an
eight-hour day, none of the identified jobs would be available; if
the individual routinely needed to lie down during an eight-hour
workday, all occupations would be excluded; and if the ALJ were to
find that the individual were capable of only occasional reaching,
fingering, and handling, the identified jobs would be excluded.
(R. 53-54.)
C.

ALJ Decision
In his July 24, 2015, Decision, ALJ Riley found that Plaintiff

had the severe impairments of degenerative disc disease of the
lumbar spine, degenerative disc disease of the thoracic spine, and
obesity.

(R. 20.)

He determined that Plaintiff did not have an

impairment or combination of impairments that met or equaled the
severity of one of the listed impairments.

(R. 21.)

ALJ Riley

made the following RFC assessment:
[T]he claimant has the residual functional
capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except he
can stand and walk up to 2 hours; must be
17

able to alternate between sitting and
standing every 20 minutes; limited to
occasional stair climbing, balancing,
stooping, kneeling, crouching and crawling;
can never climb ladders; and must avoid
exposure to hazards.
(R.

21.)

ALJ Riley then determined that Plaintiff was unable to

perform his past relevant work but jobs exist in significant
numbers in the national economy that Plaintiff could perform.
24.)

(R.

He therefore found that Plaintiff had not been under a

disability from May 26, 2010, through the date of the decision.
(R. 25.)

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.4

It is necessary for the

4

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
18

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

42 U.S.C. § 423(d)(2)(A).
19

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

(R. 24-25.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
20

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
decision.

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
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

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
21

decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

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

“However,

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

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

Cir. 1983) (internal quotation omitted).

Where 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).

Finally,

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.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion

Plaintiff asserts that the Acting Commissioner’s determination
should be reversed or remanded for the following reasons: 1) the
RFC assessment was inadequate because it failed to include all of
Plaintiff’s limitations of record; 2) the ALJ erred by giving
Plaintiff’s treating physician’s opinions limited weight; and 3)
the ALJ erred by relying on the absence of aggressive medical
treatment to discount Plaintiff’s credibility.
22

(Doc. 13 at 3.)

Because Plaintiff relies on the treating physician’s opinion in
support of his RFC argument (Doc. 13 at 4-6), the Court will first
consider Plaintiff’s second claimed error regarding the weight
afforded the treating physician’s opinions (id. at 6-9).
A.

Treating Physician Opinions
Plaintiff contends the ALJ erred by giving the opinions of

Plaintiff’s treating physician, Dr. Perry, little weight.
at 6.)

Doc. 13

Defendant responds that substantial evidence supports the

ALJs assessments of medical source opinions.

(Doc. 15 at 11.)

The

Court concludes Plaintiff has not shown this claimed error is cause
for reversal or remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.5

See, e.g.,

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

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. 404.1527(c)(2), and is widely
5

A new regulation regarding weight attributed to a treating
source affects claims filed after March 27, 2017. For claims filed
after March 27, 2017, 20 C.F.R. § 404.1520c eliminates the treating
source rule. In doing so, the Agency recognized that courts
reviewing claims have “focused more on whether we sufficiently
articulated the weight we gave treating source opinions, rather
than on whether substantial evidence supports our decision.” 82 FR
5844-01, 2017 WL 168819, *at 5853 (Jan. 18, 2017). This case,
based on claims filed on Sept. 11, 2013 (R. 18), is not affected by
the new regulation and is to be analyzed under the regulatory
scheme cited in the text.
23

accepted in the Third Circuit.

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

Cir. 1993); see also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
The regulation addresses the weight to be given a treating source’s
opinion: “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
weight.”
6

20 C.F.R. § 404.1527(c)(2).6

“A cardinal principle

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
24

guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight, especially when
their opinions reflect expert judgment based on continuing
observation of the patient’s condition over a prolonged period of
time.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)

(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to reject

the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
This Court has approved the proposition that “‘generally, the
ALJ will lack substantial evidence to assign less than controlling
weight to a treating source opinion with only a lay interpretation
of medical evidence or an opinion from a non-treating, nonexamining source who did not review a complete record.’”

Blum v.

Berryhill, Civ. A. No. 3:16-CV-2281, 2017 WL 2463170, at *8 (M.D.
Pa. June 7, 2017) (quoting Carver v. Colvin, Civ. A. No. 1:15-CV00634, 2016 WL 6601665, at *18 (M.D. Pa. Sept. 14, 2016) (citations
omitted)).

The Court’s approval was based on the assessment that

25

the Carver framework is both practical and consistent with Third
Circuit caselaw.

Blum, 2017 WL 2463170, at *8.

Here, ALJ Riley explained his assessment of Dr. Perry’s
opinion as follows:
Little weight is afforded to the opinion
of Jeff Perry, D.O., suggesting that the
claimant can perform less than the full range
of sedentary work, as he provided no
treatment records in support of his opinions,
and they are inconsistent with the
conservative level of treatment received and
the claimant’s clinical presentation (i.e.
preserved reflexes, mildly diminished range
of motion and intact sensation) (Exhibit 4).
Furthermore, there is no evidence of weakness
in the lower extremities or need for an
assistive device to warrant significant
walking limitations or sedentary work.
(R. 23.)

The review of evidence preceding this specific assessment

includes the evidence which ALJ Riley finds outweighs Plaintiff’s
alleged disabling limitations:
The record does not evidence severe pathology
via diagnostic imaging. An MRI of the lumbar
spine in June 2010 showed no HNP or stenosis,
and diagnostic imaging fo the thoracic spind
showed some dehydration changes at T10-11,
and T11-12, mild at T12-L1 with associated
Schmorl’s node but no fractures (Exhibit
1F/11). There is no evidence of nerve root
compression, bladder or bowel involvement,
intractable pain, significant instability, or
neurological compromise related to the
claimant’s back pain (Exhibits 1F, 2F, 3F).
Despite the claimant’s allegations of
debilitating pain, there is no evidence of
significant clinical abnormalities such as
markedly diminished range of motion, muscle
atrophy or motor deficits (Exhibits 1F 2F,
3F). To the contrary, on examination the
claimant typically shows only mildly reduced
26

range of spinal motion, no edema, negative
straight leg raises, preserved reflexes and
intact sensation (Exhibits 1F, 2F/1, 3F).
Treatment records from his primary care
physician reveal that the claimant did not
show paravertebral spasm or tenderness of the
spine despite his impairments (Exhibit 2F).
Moreover, these records document that he
showed full range of motion without
restriction (Exhibit 2F). The claimant has
shown an antalgic gait, but he does not
require an assistive dvice for ambulation
(Exhibit 3F/1).
The medical evidence reveals that the
claimant requires very little treatment
despite his complaints of disabling pain.
Records show that the claimant only requires
conservative treatment for his pain, such as
use of Tramadol, Mobic and over-the-counter
modalities (Exhibit 1F). . . . Notably, there
is no evidence of treatment since 2012 which
is inconsistent with the claimant’s
allegations that he suffers ongoing
debilitating symptomatology.
(R. 22-23.)
The ALJ’s evidence review and opinion assessment clearly show
he cited appropriate reasons to assign less than controlling or
significant weight to Dr. Perry’s opinions in that he found they
were not supported by treatment records, were not consistent with
clinical presentation, and were contradicted by other evidence of
record.

See 20 C.F.R. § 404.1527(c)(2).

The principle that great

weight is due an opinion that “reflects expert judgment based on
continuing observation of the patient’s condition over a prolonged
period of time,” Morales, 225 F.3d at 317, is greatly diminished

27

where “there is no evidence of treatment since 2012.”7

(R. 23.)

Importantly, Plaintiff does not refute the evidence relied upon by
the ALJ and does not argue that such evidence does not contradict
Dr. Perry’s opinions.

(See Doc. 13 at 6-8.)

Plaintiff’s

conclusory statement that “[t]he ALJ did not provide good reasons,
or identify appropriate circumstances to assign less than

7

The definition of “treating source” is instructive:
Treating source means your own acceptable
medical source who provides you, or has
provided you, with medical treatment or
evaluation or who has, or has had, an ongoing
treatment relationship with you. Generally,
we will consider that you have an ongoing
treatment relationship with an acceptable
medical source when the medical evidence
establishes that you see, or have seen, the
source with a frequency consistent with
accepted medical practice for the type of
treatment and/or evaluation required for your
medical condition(s). We may consider an
acceptable medical source who has treated or
evaluated you only a few times or only after
long intervals (e.g., twice a year) to be
your treating source if the nature and
frequency of the treatment or evaluation is
typical for your condition(s). We will not
consider an acceptable medical source to be
your treating source if your relationship
with the source is not based on your medical
need for treatment or evaluation, but solely
on your need to obtain a report in support of
your claim for disability. In such a case,
we will consider the acceptable medical
source to be a nontreating source.

20 C.F.R. § 404.1527(a)(2) (emphasis added). This definition
indicates it was not improper for the ALJ to consider significant
the lack of treatment for almost three years preceding Dr. Perry’s
opinions.
28

controlling weight to the opinions of treating physician, Dr.
Perry” (Doc. 13 at 8) does not satisfy his burden of showing error
on the basis alleged, and, for the reasons discussed above, is an
inaccurate conclusion when considered in the context of the
relevant portion of ALJ Riley’s decision.8

In sum, Plaintiff has

not demonstrated that the evidence shows that Dr. Perry’s opinions
regarding Plaintiff’s back problems are entitled to greater
deference than that assigned by ALJ Riley.
Plaintiff’s assertion of error regarding the assessment of Dr.

8

Though not specifically cited by the ALJ, the conclusion
that the ALJ did not err in his assessment of Dr. Perry’s opinions
is bolstered by several considerations: 1) a review of office visit
notes indicates that Plaintiff visited the practice six times from
the time of his workplace accident in May 2010 through June 12,
2012 (R. 267-273) and Dr. Perry’s opinion was rendered more than
thirty-four months later on April 26, 2015; 2) at only two of those
six visits were any musculoskeletal examination findings recorded–on July 30, 2010, Dr. Perry noted forward range of motion was
without restriction (R. 273) and on November 2, 2010, he noted no
paravertebral spasm and no tenderness (R. 272); 3) records do not
show that Dr. Perry ever performed a neurological examination at
any office visit or otherwise; 4) back problems were not included
in Dr. Perry’s assessments until June 14, 2012, a visit at which
there is no indication of musculoskeletal or neurological
examination (R. 267); at the only office visit of record following
the April 2015 opinion (July 24, 2015, appointment) Dr. Perry
recorded musculoskeletal examination findings that Plaintiff had no
muscle aches, weakness, or cramps, he had no arthralgias, joint
pain or swelling of the extremities, he had no difficulty walking,
and he had back pain (R. 290); 5) in the Pain Limitation
Questionnaire, Dr. Perry identified the objective source which
could “medically and reasonably explain the individual’s pain to be
“xrays/orthopedic exam” (R. 287) yet records do not show that Dr.
Perry had seen Plaintiff in over two years, Dr. Perry’s limited
exams revealed no problems (R. 272-73), and Plaintiff’s last
orthopedic evaluation was conducted by Dr. VanGiesen over a year
before the opinion (R. 274).
29

Brown’s opinion is similarly deficient in that his conclusory
statements primarily focus on the weight which the ALJ should have
afforded Dr. Perry’s opinions (Doc. 13 at 7-9) and the Court has
concluded that premise is unsupported.

Further, the only records

Plaintiff points to that Dr. Brown did not review are Dr. Perry’s
April 26, 2015, opinions (Doc. 13 at 8) and the limited weight
properly attributed to Dr. Perry’s opinions puts this case in the
rare category where all relevant non-opinion medical evidence was
reviewed by Dr. Brown.

Importantly, no evidence of record shows

that Plaintiff had a single office visit, diagnostic test, or other
in-person medical encounter from the date Dr. Brown rendered his
opinion on December 19, 2013, to the date Dr. Perry completed the
form opinions over a year later on April 26, 2015.

(See R. 237-

87.)
The foregoing analysis shows the general rule discussed in
Blum and Carver regarding the propriety of assigning greater weight
to the opinion of a non-treating, non-examining source does not
apply given the facts of this case.

Having shown no error in the

ALJ’s assessment of the opinions at issue, Plaintiff has not shown
that this claimed error is cause for reversal or remand.
B.

RFC Assessment
Plaintiff asserts the RFC was inadequate because it failed to

include all of his limitations of record and the ALJ was not
entitled to rely on the inaccurate hypothetical posed to the

30

Vocational Expert.

(Doc. 13 at 3-6.)

Defendant responds that

substantial evidence supports the RFC assessment and Plaintiff has
failed to demonstrate the existence of any credibly established
limitations from his alleged impairments not already captured in
the RFC.

(Doc. 15 at 5, 8.)

The Court concludes Plaintiff has not

shown that the claimed error is cause for reversal or remand.
Whether considered a challenge to the RFC assessment or a
challenge to the adequacy of the hypothetical posed to the VE,
Plaintiff’s argument is to be analyzed pursuant to guidance set out
in Rutherford concerning what asserted limitations must be
considered.

399 F.3d at 554 n.8.

An ALJ is not required to submit

to the vocational expert every impairment alleged by a claimant.
399 F.3d at 554.

Rather, the hypothetical posed must “accurately

convey to the vocational expert all of a claimant’s credibly
established limitations.”

Id. (citing Plummer, 186 F.3d at 431.)

Whether a limitation is credibly established is thus the crux of
the issue.
Plaintiff maintains ALJ Riley erred because he did not include
limitations identified in Dr. Perry’s opinions.

(Doc. 13 at 4-6.)

As discussed above, Plaintiff did not show that the ALJ erred in
assigning little weight to those opinions.

Therefore, Plaintiff

cannot rely on the opinions to show that a limitation was credibly
established.

Aside from Dr. Perry’s discredited findings,

Plaintiff points to no basis to find any credibly established

31

limitation not captured in the RFC.

(See id. at 3-6.)

Without

such evidence, Plaintiff has not met his burden of showing that the
claimed error is cause for reversal or remand.
C.

Consideration of Medical Treatment
Plaintiff finally claims that the ALJ erred by relying on the

absence of aggressive medical treatment to discount Plaintiff’s
credibility.

(Doc. 13 at 9-12.)

Defendant responds that

substantial evidence supports the ALJ’s evaluation Plaintiff’s
subjective complaints.

(Doc. 15 at 15-21.)

The Court concludes

Plaintiff has not shows that this claimed error is cause for
reversal or remand.
The Third Circuit Court of Appeals has stated that we
“ordinarily defer to an ALJ’s credibility determination because he
or she has the opportunity at a hearing to assess a witness’s
demeanor.”

Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).

“Credibility determinations are the province of the ALJ and should
only be disturbed on review if not supported by substantial
evidence.”

Pysher v. Apfel, Civ. A. No. 00-1309, 2001 WL 793305,

at *3 (E.D. Pa. July 11, 2001) (citing Van Horn v. Schwieker, 717
F.2d 871, 873 (3d Cir. 1983)).
Social Security Ruling 96-7p provides the following guidance
regarding the evaluation of a claimant’s statements about his or
her symptoms:
In general, the extent to which an
individual's statements about symptoms can be
32

relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p.

“One strong indication of the credibility of an

individual’s statements is their consistency, both internally and
with other information in the case record.”

SSR 96-7p.

The Social Security Regulations provide a framework under
which a claimant’s subjective complaints are to be considered.
C.F.R. § 404.1529.

20

First, symptoms such as pain, shortness of

breath, and fatigue will only be considered to affect a claimant’s
ability to perform work activities if such symptoms result from an
underlying physical or mental impairment that has been demonstrated
to exist by medical signs or laboratory findings.
404.1529(b).

20 C.F.R. §

Once a medically determinable impairment which

results in such symptoms is found to exist, the Commissioner must
evaluate the intensity and persistence of such symptoms to
determine their impact on the claimant’s ability to work.

Id.

In

so doing, the medical evidence of record is considered along with
the claimant’s statements.

Id.

The regulations set out factors relevant to consideration of

33

symptoms such as pain: activities of daily living; the location,
duration, frequency and intensity of the pain or other symptoms;
precipitating and aggravating factors; the type, dosage,
effectiveness and side effects of medications taken to alleviate
symptoms; treatment received other than medication intended to
relieve pain or other symptoms; other measures used for
pain/symptom relief; and other factors concerning functional
limitations and restrictions due to pain or other symptoms.

20

C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-vii).
The Third Circuit has explained:
An ALJ must give serious consideration
to a claimant’s subjective complaints of
pain, even where those complaints are not
supported by objective evidence. Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
“While there must be objective evidence of
some condition that could reasonably produce
pain, there need not be objective evidence of
the pain itself.” Green [v. Schweiker, 749
F.2d 1066, 1071 (3d Cir. 1984)]. Where
medical evidence does support a claimant’s
complaints of pain, the complaints should
then be given “great weight” and may not be
disregarded unless there exists contradictory
medical evidence. Carter [v. Railroad
Retirement Bd., 834 F.2d 62, 65 (3d Cir.
1987)]; Ferguson, 765 F.2d at 37.
Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993).
Here the only “medical evidence” which Plaintiff cites as
supportive of his complaints of pain is Dr. Perry’s Pain Limitation

34

Questionnaire completed on April 26, 2015.9
(citing R. 287).)

(Doc. 13 at 10-11

As discussed above, Plaintiff did not show that

ALJ Riley erred in discounting this opinion.

Therefore,

Plaintiff’s sole reliance on Dr. Perry’s pain-related assessments
cannot meet his burden of showing error on the basis alleged.
Furthermore, the ALJ considered factors identified as relevant to
the inquiry of Plaintiff’s credibility regarding pain including the
location, duration, frequency and intensity of the pain or other
symptoms as reported by Plaintiff and examining sources,
medications taken to alleviate symptoms, treatment received other
than medication intended to relieve pain or other symptoms, and
other measures used for pain/symptom relief (R. 22-23).

See

20

C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-vii).
Finally, Plaintiff notes “the ALJ failed to acknowledge that
Plaintiff’s obesity supports his claims regarding his symptoms.”
(Doc. 13 at 11.)

Plaintiff does not point to anything in the

record to support a conclusion that the asserted lack of discussion
was harmful error.

(Id.)

Thus, Plaintiff has not met his burden

9

Plaintiff cites Green v. Schweiker, 749 F.2d 1066, 1070-71
(3d Cir. 1984), for the proposition that “[a]n absence of medical
evidence does not constitute contrary medical evidence.” (Doc. 13
at 10 (citing Green, 749 F.2d at 1070-71).) While this is true,
here the ALJ reviewed specific findings which he determined limited
Plaintiff’s credibility regarding his claim that he had totally
debilitating pain. (R. 22-23.) His review included reference to a
total lack of treatment for a period of over two years (R. 23)
which is a consideration not prohibited by Green, the regulatory
scheme reviewed in the text, or common sense.
35

of showing that the claimed error is cause for reversal or remand.
V. Conclusion
For the reasons discussed above, the Court concludes
Plaintiff’s appeal is properly denied.

An appropriate Order is

filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: August 24, 2017

36