Jenkins

Filing 23

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 9/11/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERESA KAY JENKINS,

:
:CIVIL ACTION NO. 3:17-CV-0211
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 Supplemental Security Income (“SSI”) under
Title XVI.

(Doc. 1.)

Plaintiff filed her application for benefits

on November 11, 2013, alleging a disability onset date of January
1, 2008.

(R. 17.)

After she appealed the initial denial of the

claim, a hearing was held on May 14, 2015, and Administrative Law
Judge (“ALJ”) Randy Riley issued his Decision on June 11, 2015,
concluding that Plaintiff had not been under a disability from
November 11, 2013, to the date of the decision.

(R. 24.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on December 2, 2016.

(R. 1-6, 12-13.)

In doing so,

the ALJ’s decision became the decision of the Acting Commissioner.
(R. 1.)
Plaintiff filed this action on February 3, 2017.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the

step two determination was not supported by substantial evidence;
and 2) the residual functional capacity (“RFC”) determination was
not supported by substantial evidnece.

(Doc. 16 at 1.)

After

careful review of the record and the parties’ filings, the Court
concludes this appeal is properly denied.
I. Background
Plaintiff was born on February 7, 1970, and was forty-three
years old on the alleged disability onset date.

(R. 23.)

a tenth-grade education and no past relevant work.
A.

She has

(Id.)

Medical Evidence
Plaintiff received primary care at Biglerville Family

Medicine.

(R. 181-249.)

In January 2013 CRNP Danielle Gourley saw

Plaintiff for the chief complaints of bilateral lower leg pain, and
constant fatigue with headaches.

(R. 214.)

Plaintiff did not have

a physical examination “due to the nature of the visit,” and she
was assessed to have hypertension, type 2 diabetes mellitus and
depression with anxiety.

(R. 214, 216.)

In February 2013, Ms. Gourley saw Plaintiff for a routine
follow-up of multiple chronic illnesses including coronary artery
disease, hypertension, type 2 diabetes mellitus, and depression
with anxiety.

(R. 204.)

Plaintiff reported that she felt her

depression was controlled and she was tolerating her medications
without side effects, she denied specific problems related to
diabetes, hypertension, hyperlipidemia, and coronary artery

2

disease.

(R. 205-06.)

Physical examination showed that Plaintiff

had age appropriate range of motion and strength, normal vascular
examination, and neurological examination indicated normal
judgment, orientation and mentation, and deep tendon reflexes were
normal and symmetric.

(R. 208.)

In April 2013, Plaintiff saw Ms. Gourley with complaints of
bilateral leg swelling, particularly after she was on her feet a
lot.

(R. 200.)

Plaintiff also complained of hand pain which Ms.

Gourley suspected could be related to cervicalgia in that Plaintiff
had “a history of discs in her neck.”

(Id.)

Musculoskeletal

examination showed left foot tenderness near the great toe,
peripheral vascular pulses were normal, and neurological exam was
normal.

(R. 203.)

Office notes indicate Plaintiff said she felt

strongly that her glucose was under control and she did not need
insulin.

(R. 200.)

Plaintiff was to have follow-up labs in May

and get an x-ray of the left foot.

(Id.)

On May 22, 2013, Plaintiff presented to the Emergency
Department at Gettysburg Hospital for evaluation of elevated blood
sugar levels.

(R. 265.)

Her only complaints were nausea,

generalized malaise, and fatigue.

(Id.)

Other than weakness,

fatigue, and back pain, the Review of Systems was negative.

(Id.)

Plaintiff’s recorded medical history included coronary artery
disease, hypertension, and diabetes.

(R. 266.)

No specific

problems other than low temperature (98.2 degrees) were noted on

3

Physical examination.

(R. 266-67.)

Notes indicate that Plaintiff

presented with generalized malaise and some fatigue with
hyperglycemia, her blood sugar improved with fluids and insulin,
she had a prescription from her primary care provider for a new
oral hypoglycemic drug, and she would follow up outpatient.

(R.

269.)
On May 24, 2013, Plaintiff had a follow-up visit with Ms.
Gourley at Biglerville Family Medicine, particularly to check up on
her diabetes.

(R. 196.)

Plaintiff said she did not want to

restart metformin despite that fact that she knew her glucoses were
going up but she agreed to start a long-acting insulin (Levemir).
(R. 195.)

Ms. Gourley commented she suspected Plaintiff’s nausea

was stress related.

(Id.)

Plaintiff reported that she felt her

depression was controlled and she was tolerating the medications
without side effects.

(R. 196.)

Physical exam showed no problems

and Plaintiff was assessed to have age appropriate range of motion
and strength, normal judgment, mentation and orientation, and
normal and symmetric deep tendon reflexes.

(R. 199.)

Both feet

were determined to be normal and a monofilament wire test was
normal.

(Id.)

Later in May the Levamir dosage was increased due

to her diabetes not being at goal.

(R. 191.)

At a routine check up in August 2013, Plaintiff reported heart
palpitation and sweating but denied other problems related to
hypertension; she felt her depression was controlled; and she said

4

was taking her diabetes medication as prescribed and denied
episodes of feeling excessively weak/shaky/sweaty but reported low
blood sugars.

(R. 186-87.)

Musculoskeletal and neurological

examination findings were the same as noted at previous visits.
(R. 190.)
normal.

Foot examination and monofilament tests were also
(Id.)

On November 5, 2013, Plaintiff reported to Ms. Gourley that
her legs were getting worse with pain that started in her upper
thighs and went all the way to her feet and nothing helped it.
181.)

(R.

Plaintiff also reported that she was tired of her legs

hurting, tired of waking up crying, she could not stand for any
length of time, and she could only sit for twenty minutes at a
time.

(Id.)

Lumbar spine MRI was ordered, it was noted that

Plaintiff needed counseling and should be given related
information, and effexor and xanax dosages were increased.

(Id.)

Physical exam showed that Plaintiff was in mild distress, forward
flexion and extension were decreased but she had no tenderness.
(R. 183.)
On November 29, 2013, Plaintiff had MRI of the lumbar spine.
(R. 243-44, 261-62.)

The following impression was recorded: 1)

multilevel disc bulges; disc protrusions at L4-5 and L5-S1; 3)
discogenic disease pronounced at L5-S1; 4) multilevel
spondyloarthropathy; 5) artifact or right neural low signal focus
at L5 (“can be further evaluated with followup enhanced study”);

5

and 6) small right renal cyst.

(R. 243, 261.)

Plaintiff again saw Ms. Gourley on December 16, 2013, for
follow-up of her leg pain.

(R. 217.)

Office notes indicated that

neuropathy was suspected and a bulging disc may have been
contributing to the problem--Plaintiff had been seen by podiatry
and a neurosurgery referral was arranged.

(Id.)

Notes also

indicate that Plaintiff was not self-monitoring blood glucose
levels due to cost but she was urged to do so to be certain her
levels were ok.

(Id.)

Plaintiff reported that she “always” had

foot pain and leg pain bilaterally.

(R. 220.)

Physical exam

showed foot with decreased sensation, palpable pulses, feet were
cool (not cold), and pain was reproducable with pressure on the
arches.

(Id.)

Plaintiff had a neurosurgical consultation with Troy J.
Hamilton, PA-C, at Wellspan Neurosurgery on January 16, 2014.
252.)

(R.

Physical exam showed moderate tenderness to palpation

throughout the paravertebral musculature of the lumbar spine,
strength and deep tendon reflexes grossly preserved through the
lower extremities, and negative straight leg raise bilaterally.
(R. 256.)

Mr. Hamilton assessed disc degeneration, lumbar canal

stenosis, and lumbar radiculopathy.

(Id.)

He reported that

Plaintiff’s discomfort was likely the result of the stenosis at L45, and he recommended consideration for epidural steroid
injections.

(Id.)

He noted that he would make the referral to

6

pain management and Plaintiff should have a followup for surgical
consultation if the steroid injections were ineffective.

(Id.)

On January 19, 2014, Plaintiff was seen at the Emergency
Department of Gettysburg Hospital for sudden onset of severe back
pain in the lumbar region which was worse than her chronic back
pain.

(R. 257.)

The “Impression” was sciatica and Plaintiff was

given pain medication, a Medrol dose pack, and instructions to
follow up with her regular doctor within a day or two.1

(R. 260.)

On January 30, 2014, Mark Christopher, M.D., (identified as a
specialist in pathology (R. 282)) conducted an internal medicine
examination of Plaintiff on the referral of the Bureau of
Disability Determination.

(R. 279-82.)

He recorded that her chief

complaint was low back pain with shooting pain down her legs which
had progressed over the preceding two years which she rated at a
level of eight or nine out of ten.

(R. 279.)

Plaintiff also

reported that she could not walk because of severe pain, she could
not sit or stand for long periods of time, the pain induced nausea
at times, and it was relieved by laying down and taking pressure
off her lower back.

(Id.)

Plaintiff reported symptoms related to

her heart problems (legs swell after standing for a long period of
time and shortness of breath) and her diabetes (feet extremely

1

No records indicate that Plaintiff was seen at Summit Pain
Medicine where she was referred for pain management referral (R.
301-08) or that she otherwise received the recommended steroid
injections.
7

painful and associated numbness).

(Id.)

Physical examination

showed that Plaintiff was in apparent pain, her gait was extremely
guarded and she was tilted forward, she declined to walk on heels
and toes, her squat was 25%, her stance was guarded, she used no
assistive device and needed no help changing for exam or getting on
and off exam table, and she was able to rise from a chair without
difficulty.

(Id.)

Musculoskeletal examination showed leg raise

positive bilaterally to five degrees, joints stable and nontender,
and no redness, heat, swelling or effusion.

(R. 281.)

Neurologic

examination showed deep tendon reflexes physiologic and equal in
upper and lower extremities, no sensory deficit noted, and strength
4/5 in the lower extremities and 5/5 in upper extremities.
Examination of the extremities showed no muscle atrophy.

(Id.)
(Id.)

The Mental Status Screen showed no evidence of impaired judgment or
significant memory impairment and normal affect.

(R. 281-82.)

Medical Records from Biglerville Family Medicine indicate that
Plaintiff was seen on March 11, 2014, when she complained of
tingling in her feet.

(R. 299.)

No examination or medical

findings are contained in the record of the visit.

(See id.)

A Discharge Summary from Gettysburg Hospital Emergency
Department dated May 13, 2015, indicates that Plaintiff was seen
for the chief complaint of back pain, she was given pain medication
and information about back care and sacroiliitis and she was to
follow up with her primary care provider within one to two weeks.

8

(R. 306-07.)
B.

Opinion Evidence
Dr. Christopher completed a Medical Source Statement of

Ability To Do Work-Related Activities (Physical) on January 30,
2014.

(R. 283-88.)

He opined that Plaintiff could lift and carry

up to ten pounds occasionally and never more than that due to back
pain; she could sit for one hour at a time and for a total of two
hours in an eight-hour work day due to back pain; she could use her
hands and feet frequently; and she could never climb, balance,
stoop, kneel, crouch, or crawl due to back pain.

(R. 283-86.)

Dr.

Christopher also opined that Plaintiff had numerous environmental
limitations due to her back pain–-of all listed, the only thing she
was able to do was drive a motor vehicle occasionally.

(R. 287.)

He further concluded that Plaintiff was not able to walk a block at
a reasonable pace on an uneven surface or climb a few steps at a
reasonable pace with the use of a single hand rail but she was able
to perform activities like shopping, travel alone, use standard
public transportation, prepare a simple meal and feed herself, care
for her personal hygiene and sort, handle and use paper files.

(R.

288.)
On February 6, 2014, Jonathan Rightmyer, Ph.D., a State agency
psychological consultant, concluded that Plaintiff’s mental
impairment was nonsevere.

(R. 53.)

9

C.

Hearing Testimony
At the May 14, 2015, hearing before ALJ Riley, Plaintiff

testified that she lived in a house with her brother and her
twelve-year-old son, she completed tenth grade, she had no
vocational training, and her brother supported her.

(R. 32-33.)

Plaintiff said she showered with a girlfriend present in case she
fell, she cooked while sitting at the stove, she did the dishes
while sitting at the sink, she did very little housework, and she
did not do laundry, yard work, or shopping.

(R. 33-34.)

Plaintiff

estimated that she could stand in one position for ten to fifteen
minutes.

(R. 36.)

Plaintiff testified that she took her medications as
prescribed but they did not help and she has side effects from
them.

(Id.)

She said her diabetes was not controlled and when her

sugar was high, she got bad headaches and blurry vision, and she
wanted to go to sleep.

(R. 39.)

Plaintiff added that the burning

and tingling in her feet continued.

(R. 40.)

Plaintiff reported she had pain in her back every day and
there was nothing she could do to make it better.

(R. 41.)

She

said the pain fluctuated–-on good days she could do a little more
than normal and on bad days she stayed in bed all day.

(R. 43-44.)

She also said that she had recently been seen at Gettysburg
Hospital because she sprained her back after her legs gave out.
(R. 42.)

10

ALJ Riley asked the vocational expert (“VE”) about Plaintiff’s
past work and the VE responded that the only employment noted in
the record was that of a fast food worker.

(R. 46-47.)

The ALJ

then asked the VE to consider a hypothetical person of Plaintiff’s
age, education, and work experience who could do the following:
“Sedentary work, then out of an eight-hour day at one time could
sit two hours at a time.

Can stand one hour at a time, can walk

one hour at a time, never any foot control operations or ladders.
Occasional stairs, balance, stoop, kneel, crouch, crawl and no
commercial driving.”

(R. 47.)

The VE responded that the individual could not do Plaintiff’s
past work but there were jobs available for the individual such as
final assembler, inspector, and table worker.

(R. 48.)

If the

individual could not engage in sustained work activity on a regular
continuous basis for eight hours a day, five days a week for a 40hour week, the VE testified there were no jobs available.

(Id.)

D. ALJ Decision
In his June 11, 2015, Decision, ALJ Riley concluded Plaintiff
had the severe impairments of degenerative disc disease, diabetes
mellitus, and obesity.

(R. 19.)

He also concluded that

Plaintiff’s depression was nonsevere.

(R. 20.)

He noted that,

although the record established evidence of depression, reported it
was controlled with medication, she did not receive mental health
treatment by a therapist, psychologist, or psychiatrist, and had

11

not required psychiatric admission.

(R. 19-20.)

After concluding that Plaintiff did not have an impairment or
combination of impairments that met or equaled a listing, the ALJ
assessed that Plaintiff had
the residual function capacity to perform
sedentary work . . . except she is limited to
sitting two hours at a time, walking one hour
at a time and standing one hour at a time.
The claimant needs to avoid foot control
operations and climbing ladders, cannot
perform commercial driving and can perform
occasional climbing stairs, balancing,
stooping, kneeling, crouching and crawling.
(R. 20.)
Ultimately, the ALJ determined Plaintiff was not disabled at
step five when he concluded that there were jobs that existed in
the national economy that she could perform.

(R. 23.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

It is necessary for the

2

“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
12

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; and 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

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).
13

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).

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. 23-24.)
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–14

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
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
15

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.

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 remanded for the following reasons: 1) the step two
determination was not supported by substantial evidence; and 2) the
residual functional capacity (“RFC”) determination was not
16

supported by substantial evidence.
A.

(Doc. 16 at 1.)

Step Two Error
Plaintiff asserts that the ALJ erred at step two when he

determined that Plaintiff’s depression was not a severe impairment
and he failed to follow the relevant regulation for assessing the
severity of her impairment.

(Doc. 16 at 6-9.)

Plaintiff also

maintains the error affected the ALJ’s subsequent steps in the
sequential evaluation process including in determining Plaintiff’s
RFC and credibility.

(Doc. 16 at 9.)

Defendant maintains that the

ALJ did not err at step two, and, if he did, Plaintiff has not
shown that the claimed step two errors are harmful.
12.)

(Doc. 21 at 6-

The Court concludes Plaintiff has not shown the claimed

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

In other words,

because the outcome of a case depends on the demonstration of
functional limitations rather than a diagnosis, where an ALJ
identifies at least one severe impairment and ultimately properly
characterizes a claimant’s symptoms and functional limitations, the

17

failure to identify a condition as severe is deemed harmless error.
Garcia v. Commissioner of Social Security, 587 F. App’x 367, 370
(9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007)); Walker v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006)
(not precedential) (“Mere presence of a disease or impairment is
not enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.
No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Here Plaintiff merely states conclusorily that the ALJ’s
finding that her depression was nonsevere affected his findings at
subsequent steps.

(Doc. 16 at 9.)

She does not point to any

specific limitation attributable to her depression that would have
affected the RFC or credibility determinations.

Although Defendant

aptly pointed out flaws in Plaintiff’s step two argument (see Doc.
21 at 8-9), Plaintiff chose not to file a reply brief, informing
the Court that she “relies on and reasserts arguments made” in her
opening brief (Doc. 22 at 1).

Thus, Plaintiff has not shown error

on the basis of a harmful effect of the finding of depression being
nonsevere at step two based on the effect at later steps in the
sequential evaluation process.
Similarly, Plaintiff does not respond to Defendant’s sound

18

argument that Plaintiff has not shown error regarding the handling
of the psychiatric review technique (“PSR”) in this case in that
Dr. Rightmeyer conducted the PSR and ALJ Riley granted significant
weight to Dr. Rightmeyer’s opinion.

(See Doc. 21 at 10-12.)

Significantly, Plaintiff does not point to any harm related to the
ALJ’s failure to follow 20 C.F.R. § 416.920a in her two-sentence
presentation of the issue.

(Doc. 16 at 8-9.)

Because Plaintiff

has not satisfied her burden of showing harmful error on the basis
alleged, the Court does not find that the ALJ’s asserted failure to
follow the technique set out in 20 C.F.R. § 416.920a per se
warrants remand.
B.

Residual Functional Capacity Assessment
Plaintiff asserts that the RFC assessment is error for two

reasons: the ALJ did not properly consider the opinion evidence of
record; and the ALJ failed to fully and fairly develop the record.
(Doc. 16 at 11.)

Defendant responds the ALJ properly evaluated the

opinion evidence and satisfied his duty to develop the record.
(Doc. 21 at 12-25.)

The Court concludes Plaintiff has not met her

burden of showing that remand is required on the bases alleged.
1.

Opinion Evidence
Plaintiff contends ALJ Riley erred by affording only partial

weight to Dr. Christopher’s opinion.

(Doc. 16 at 9-11.)

Defendant

responds that the ALJ evaluated the opinion in accordance with
relevant regulations and he reasonably declined to adopt it.
19

(Doc.

21 at 16-20.)
Plaintiff relies on Morales v. Apfel for the proposition that
“[t]he ALJ cannot take ‘pieces of the examination reports that
support [his] determination.’”

(Doc. 16 at 9-10 (quoting Morales

v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000)).)

Based on Morales,

she also posits that an ALJ cannot ignore ultimate conclusions and
medical symptomatology in reports that lend support to the opinion
at issue and choose instead to draw his own medical conclusion.
(Doc. 16 at 11 (citing Morales, 225 F.3d at 318).)

Plaintiff

states that Dr. Christopher was “the only qualified medical
professional to examine Plaintiff,” and he characterizes Dr.
Christopher’s opinion as “the only valid examining opinion of
record.”

(Doc. 16 at 11.)

Morales is immediately distinguishable because it considered
the opinion of a treating medical source which was supported by two
other opinions from treating medical sources.

225 F.3d at 317-18.

Here, the opinion at issue is that of an examining source which is
entitled to less weight than that of a treating source.

See 20

C.F.R. § 404.1527(c)(2).
Plaintiff is correct that “Dr. Christopher was the only
medical professional to examine Plaintiff” (Doc. 21 at 17), but
this is true because Plaintiff received primary care and regular
physical examinations from a certified registered nurse
practitioner (“CRNP”), Danielle Gourley, at Biglerville Family

20

Medicine and the neurosurgery consultation examination was
conducted by a registered physician’s assistant (PA-C), Troy J.
Hamilton.

(R. 181-249, 252-56.)

For claims filed prior to March

27, 2017, CRNPs and PA-Cs were not “acceptable medical sources.”
See 20 C.F.R. § 404.1502.

The importance of information from CRNPs

and PA-Cs is indicated in the definitional change for claims filed
on or after March 27, 2017, which includes these practitioners in
the definition of an “acceptable medical source.”
404.1502(a).

See 20 C.F.R. §

Importantly, at the relevant time Ms. Gourley and Mr.

Hamilton were considered medical sources, and, as such, evidence
related to their treatment and physical examinations are to be
considered in evaluating the opinion of a medical source and in
making the determination as to whether the individual is disabled.
SSR 06-03p, 2006 WL 2329939, at *4.

Earlier, SSR 06-03p

highlighted the relevance of evidence from these practitioners in
evaluating impairment severity and functional effects:
With the growth of managed health care in
recent years and the emphasis on containing
medical costs, medical sources who are not
‘acceptable medical sources,’ such as nurse
practitioners[, and] physician assistants,
have increasingly assumed a greater
percentage of the treatment and evaluation of
functions previously handled primarily by
physicians and psychologists.
SSR 06-03p, 2006 WL 2329939, at *3.
In her brief, Plaintiff ignores the evidence cited by ALJ
Riley in support of his RFC.

Importantly, she does not dispute ALJ

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Riley’s finding that Dr. Christopher’s opinion was “not supported
by the longitudinal examination or medical findings” (R. 23), i.e.,
the findings of Plaintiff’s treating practitioner at Biglerville
Family Medicine.

(See Doc. 16.)

Rather, Plaintiff cites a

November 2013 MRI and a January 2014 neurosurgery consultation as
the medical evidence of record supporting Dr. Christopher’s
opinion.

(Doc. 16 at 10.)

ALJ Riley considered the MRI and the

January 2014 consultation (R. 21-22) but he was under no obligation
to consider them over the longitudinal record when determining the
weight to be afforded Dr. Christopher’s opinion.
The regulation setting out the methodology for evaluating
medical opinions specifies that the supportability of an opinion is
a key factor.

20 C.F.R. § 404.1527(c)(3).

Here, Dr. Christopher

supported his limitation findings simply with the notation “back
pain.”

(R. 283-88.)

Consistency is another identified factor–-the

more consistent a medical opinion is with the record as a whole,
the more weight it should be given.

20 C.F.R. § 404.1527(c)(4).

ALJ Riley considered this factor and specifically found the opinion
was not consistent by longitudinal examinations or medical findings
(R. 23), a conclusion Plaintiff does not dispute.
Unlike Morales, 255 F.3d at 318, here no other opinions
support Dr. Christopher’s opinion and the fact that some evidence
supports it is not dispositive–-even if a different factual
conclusion could be reached, a court may not set aside a decision

22

based on substantial evidence, Hartranft, 181 F.3d at 360.
Because Plaintiff has not shown that the ALJ’s determination
regarding Dr. Christopher’s opinion is not supported by substantial
evidence, she has not shown that the claimed error is cause for
remand.3
2.

Development of the Record
Plaintiff contends ALJ Riley failed to fully and fairly

develop the record because he did not order a psychiatric
consultative examination and he failed to request a treating
physician opinion.

(Doc. 16 at 11.)

Defendant responds that the

record was fully and fairly developed in that Plaintiff had the
benefit of counsel throughout the agency proceedings and counsel
agreed with the ALJ’s indication that he would review all
documentation and issue a decision. (Doc. 21 at 20.)

The Court

concludes Plaintiff has not shown the claimed error is cause for
remand.

3

Though not cited by ALJ Riley, this conclusion is bolstered
by the fact that Plaintiff’s visit with Dr. Christopher occurred
eleven days after she was seen at the Emergency Department of
Gettysburg Hospital for a sudden onset of severe back pain which
was diagnosed as sciatica. (R. 257-60.) It does not appear that
Plaintiff followed up with her family doctor as directed. (R.
260.) The evaluation also took place approximately two weeks after
she was referred to pain management where steroid injections were
recommended and the record does not indicate any follow-up.
Further, despite the numerous complaints of severe problems related
to her impairments lodged at her visit with Dr. Christopher (R.
279-83), Plaintiff complained only of tingling in her feet when she
visited Biglerville Family Medicine about two weeks after her visit
with Dr. Christopher, and the office records from the visit contain
no examination or medical findings. (R. 299.)
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Although the duty to assist the claimant and develop the
record is well established, Ventura v. Shalala, 55 F.3d 900, 902
(3d Cir. 1995), the duty is not unlimited and does not come into
play where there was sufficient evidence in the record for the ALJ
to make his decision, see, e.g., Moody v. Barnhart, 114 F. App’x
495, 501 (3d Cir. 2004) (not precedential); see also Griffin v.
Commissioner of Social Security, 303 F. App’x 886, 890 n.5 (3d Cir.
2009) (not precedential).

It is the claimant’s duty to prove that

he is disabled, 20 C.F.R. § 404.1512, and the ALJ is entitled to
assume that Plaintiff’s counsel “is making his strongest case for
benefits.”

Glenn v. Sec’y of Health and Human Serv., 814 F.2d 387,

391 (7th Cir. 1987); see also Batts v. Barnhart, 2002 WL 32345745,
at *8 (E.D. Pa. Mar. 29, 2002)).)
With her cursory argument that the general duty to develop the
record required more in this case, Plaintiff has not addressed
relevant caselaw and her duty to present evidence of disability.
Therefore, Plaintiff has not shown that remand is required for
further development of the record.
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: September 11, 2017
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