Zenon v. Colvin

Filing 10

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 9/28/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SERGIO ZENON,

:
:CIVIL ACTION NO. 3:17-CV-377
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 in September 2013, alleging a disability
onset date of May 22, 2012.

(R. 45.)

After he appealed the

initial denial of the claims, a hearing was held on April 28, 2015,
and Administrative Law Judge (“ALJ”) Therese A. Hardiman issued her
Decision on September 8, 2015, concluding that Plaintiff had not
been under a disability during the relevant time period.
58.)

(R. 45,

Plaintiff requested review of the ALJ’s decision which the

Appeals Council denied on October 13, 2016.

(R. 1-7, 37-41.)

In

doing so, the ALJ’s decision became the decision of the Acting
Commissioner.

(R. 1.)

Plaintiff filed this action on March 1, 2017.

(Doc. 1.)

He

asserts in his supporting brief that the ALJ erred when she failed

to conclude that Plaintiff’s physical impairments were severe
impairments.

(Doc. 8 at 3.)

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 22, 1965, and was forty-six
years old on the alleged disability onset date.

(R. 105.)

He has

a high school education and past relevant work as a personal care
attendant, certified registered nurse’s assistant, and security
guard.
A.

(Id.)

Medical Evidence
As it is Plaintiff’s burden to prove disability, the Court

focuses on the evidence of record cited by Plaintiff in support of
his arguments.

Plaintiff points primarily to evidence related to

low back problems, noting that extensive treatment began in 2011.
(Doc. 8 at 2.)
Plaintiff had x-ray of the lumbar spine on October 3, 2011,
ordered by Dr. Joseph Mussoline.

(R. 321.)

The following finding

was recorded: “Essentially normal study (grade 1 retrolisthesis,
L5-S1).”

(Id.)

Plaintiff had physical therapy for his back pain and reported
to providers at St. Luke’s Sports & Rehabilitation on October 10,
2011, that he had pain, weakness, gait dysfunction, decreased
transfer status/bed mobility, and limitations with activities of
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daily living.

(R. 322.)

Objective evaluation showed decreased

flexibility and range of motion of the right lower extremity
compared to the left and numbness of the left leg to his toes.

(R.

325.)
On December 16, 2013, Mian Shahid, M.D., saw Plaintiff for a
disability evaluation.

(R. 491.)

Plaintiff reported that he had

back problems in the lower lumbosacral area, pain went into his
legs, he had no weakness in his legs or foot, no weakness in his
gait, and activities such as bending, lifting, pulling, and pushing
exacerbated his pain.

(R. 492.)

Neuromuscular examination showed

that Plaintiff walked with a normal gait but walked slowly with
small steps, he was not able to bend more than ten degrees in his
lumbar spine, deep tendon reflexes were normal, power was equal and
symmetrical on all levels, straight leg raising on the right caused
pain at twenty degrees, he was unable to walk on his heels or toes,
but he was able to get on and off the examining table without any
assistance.

(R. 493-94.)

Dr. Shahid assessed chronic low back

pain syndrome with L5-S1 radiculopathy on the right side.

(R.

494.)
On the same date, Dr. Shahid completed a Medical Source
Statement of Ability to Do Work-Related Activities (Physical).
498-503.)

(R.

Dr. Shahid assessed that Plaintiff had a five pound

lifting/carrying limit; he had no problem sitting and could stand
for one hour in an eight-hour workday; he had limitations regarding

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the use of his right hand but no limitations on the use of his
feet; and he could never climb ladders or balance.

(R. 498-501.)

Dr. Shahid did not identify the particular medical or clinical
findings that supported his assessments.

(Id.)

Dr. Shahid did not

offer an opinion as to whether the limitations had lasted or were
expected to last for twelve consecutive months.
B.

(R. 503.)

Testimony
Plaintiff points to hearing testimony where he talked about

significant limitations with standing and walking: he could stand
for approximately one-half hour before he had to sit down and he
could walk for approximately two blocks.

(Doc. 8 at 3 (citing R.

73, 74.)
C.

ALJ Decision
In her September 8, 2015, Decision, ALJ Hardiman concluded

that Plaintiff had the severe impairments of bipolar disorder and
generalized anxiety disorder.

(R. 48.)

She further concluded that

Plaintiff’s chronic low back pain was a medically determinable
physical impairment but it was non-severe because it did not cause
more than minimal limitations in his ability to perform basic work
activities.

(R. 49.)

Following this initial assessment, ALJ Hardiman engaged in a
more detailed discussion of Plaintiff’s chronic low back pain,
noting that pain is a subjective complaint and not a medically
determinable impairment.

(Id.)

She then concluded that
4

Plaintiff’s diagnosis of chronic low back pain is not a medically
determinable impairment.

(Id.)

ALJ Hardiman also noted that x-ray

showed grade 1 retrolisthesis at L5-S1 and Dr. Shahid found that
Plaintiff had radiculopathy on his right side.

(R. 49-50.)

ALJ Hardiman notes that she considered Plaintiff’s severe and
non-severe impairments, including his chronic low back pain, in
assessing appropriate limitations to Plaintiff’s exertional and
non-exertional capacities.

(R. 51.)

Finding that Plaintiff’s impairments did not meet or equal a
listed impairment when considered alone or in combination (R. 51),
the ALJ assessed Plaintiff’s residual functional capcaity (“RFC”)
(R. 53-54).

She determined that Plaintiff could perform medium

work except that he was limited to
occasional climbing, balancing, and stooping
but never on ladders. There should be no
left overhead reaching and there would be a
need to avoid vibrations and hazards. The
claimant would be limited to simple, routine
tasks and low stress as defined as only
occasional decision making required and only
occasional changes in the work setting. The
claimant should have no interaction with the
public but can tolerate occasional
interaction with co-workers and supervisors.
(R. 53-54.)

With this RFC, ALJ Hardiman concluded Plaintiff could

not do his past relevant work but he was able to perform jobs which
were available in significant numbers in the national economy.
56-68.)

(R.

Therefore, she found that Plaintiff had not been under a

disability as defined in the Social Security Act from May 22, 2012,
through the date of the decision, September 8, 2015.
5

(R. 106-07.)

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.1

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
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. §§

1

“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.
42 U.S.C. § 423(d)(2)(A).
6

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).

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. 57-58.)
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).
7

Substantial evidence

means “more than a mere scintilla.

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
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,
8

“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
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
9

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 generally that the Acting Commissioner’s
determination is error because the ALJ failed to conclude that
Plaintiff’s physical impairments were severe impairments and avers
specifically that his low back condition is a severe impairment.
(Doc. 8 at 3, 6-7.)

Defendant responds that remand is not

warranted on the basis of Plaintiff’s claimed step two error
because the ALJ’s step two evaluation is supported by substantial
evidence. (Doc. 9 at 10-14.)

Alternatively, Defendant maintains

that, even assuming the ALJ should have found that Plaintiff’s back
pain constituted a severe impairment, there is no basis for remand
because she included relevant limitations in later steps of the
sequential evaluation process.
F.3d at 553).)

(Id. at 14 (citing Rutherford, 399

The Court concludes Plaintiff has not shown that

the claimed step two error is cause for remand because, assuming
arguendo there is merit in Plaintiff’s basic contention, Plaintiff
has not attempted to show that credibly established limitations
10

were not addressed at later stages of the evaluation process.
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.

See

Rutherford, 399 F.3d at 553; see also Salles v. Commissioner of
Social Security, 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (not
precedential) (citing Rutherford, 399 F.3d at 553).

In other

words, because the outcome of a case depends on the demonstration
of functional limitations rather than a diagnosis, where an ALJ
identifies at least one severe impairment and ultimately properly
characterizes a claimant’s symptoms and functional limitations, the
failure to identify a condition as severe is deemed harmless error.
Garcia v. Commissioner of Social Security, 587 F. App’x 367, 370
(9th Cir. 2014) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
2007)); Walker v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006)
(not precedential) (“Mere presence of a disease or impairment is
not enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.
No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Rather than argument, basically Plaintiff provided a two11

paragraph summary of the ALJ’s consideration of his back condition.
(Doc. 8 at 6-7.)

He merely stated in a conclusory manner that he

“has a low back condition that should have been assessed to be a
severe impairment as it causes more than de minimis limitation on
the Claimant’s ability to function per the Consultative Examiner’s
assessment.

As this de minimis standard has been met, this matter

must be remanded back to the ALJ for further consideration.”

(Doc.

8 at 7.)
Importantly, Plaintiff does not acknowledge that the ALJ
specified that she considered non severe impairments, including the
back condition, in her RFC determination (R. 51, 53-54); he does
not identify credibly established limitations which were not
included in the RFC; and he does not point to any specific harm.
Plaintiff did not reply to Defendant’s argument regarding harmless
step two error and his perfunctory consideration of the claimed
error in his supporting brief does not satisfy his burden of
showing harmful error.

Therefore, Plantiff’s claimed step two

error is not cause for 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: September 28, 2017
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