Hamm v. Berryhill

Filing 15

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes that Plaintiffs appeal of the Acting Commissioners decision is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/8/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GLENN HAMM,

:
:CIVIL ACTION NO. 3:17-CV-958
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the Acting
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act.

(Doc. 1.)

Plaintiff

filed an application for benefits on March 23, 2014, alleging a
disability onset date of August 22, 2013, which he first amended to
September 18, 2013, and later amended to January 2, 2014.

(R. 18.)

After he appealed the initial denial of the claim, Administrative
Law Judge (“ALJ”) Scott Staller held a hearing on November 23,
2015.

(Id.)

With his Decision of January 19, 2016, the ALJ

determined that Plaintiff had not been under a disability as
defined in the Social Security Act from January 2, 2014, through
September 30, 2014, the date last insured.

(R. 70-71.)

Plaintiff

requested review of the Decision by the Appeals Council and the
Appeals Council denied review on May 4, 2017.

(R. 1-6.)

With the

Appeals Council denial, the ALJ’s Decision became the decision of
the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on June 2, 2017.

(Doc. 1.)

In

his supporting brief, Plaintiff asserts the ALJ erred on the
following bases: 1) substantial evidence does not support the ALJ’s
step two evaluation; 2) substantial evidence does not support the
ALJ’s evaluation of opinion evidence; 3) the ALJ

erred in his

evaluation of Plaintiff’s symptoms; and 4) the ALJ did not properly
consider Plaintiff’s obesity.

(Doc. 12 at 1-2.)

After careful

review of the record and the parties’ filings, the Court concludes
this appeal is properly denied.
I. Background
Plaintiff was born on January 2, 1964, and was fifty years old
on the date last insured.

(R. 31.)

He has a high school education

and past relevant work as a construction worker.

(R. 30-31.)

In a

Disability Report dated March 24, 2014, Plaintiff identified the
following conditions that limited his ability to work: two bulging
discs in his lower back; bicep tear of his right shoulder; cyst in
his left shoulder; meniscus tears in his right knee; nerve removal
in his left foot; bone reconstruction in his left foot; arthritis
in his spine, knees, ankles, and shoulders; disc damage in his
neck; and depression.

(R. 172.)

A. Medical Evidence
Focusing on evidence relevant to the time period at issue–January 2, 2014, through September 30, 2014–-Plaintiff presents
minimal evidence in his Summary of Impairments.

2

(See Doc. 12 at 3-

7.)

The Court focuses on the evidence cited by Plaintiff,

augmented as warranted by evidence cited by Defendant and
independently determined to be significant.
1.

Physical Impairments
On April 5, 2013, Plaintiff underwent diagnostic arthroscopy

with debridement of labrum as well as repair of superior labral
attachment, debridement of undersurface of rotator cuff, followed
by subacromial decompression.

(R. 263.)

From February 2013 through July 2013, Plaintiff treated with
Vincent Rollo, M.D., at Carroll Health Group Orthopaedics for
bilateral shoulder pain.

(R. 314-25.)

At his July 3, 2013, visit,

Dr. Rollo recorded that three months postoperatively Plaintiff
noted steady improvement with the right shoulder and believed he
was about 90 percent but he still had some difficulty with overhead
work and some tightness.

(R. 316.)

Plaintiff said that his left

shoulder remained very painful with decreased motion.

(Id.)

At

the time Plaintiff weighed 260 pounds and had a BMI of 32.53. (Id.)
Dr. Rollo discussed arthroscopic evaluation and treatment of the
left shoulder but Plaintiff stated he could not miss any more work
at the time.

(Id.)

Plaintiff was treated by Terrence Calder, M.D., of Hillside
Pain Management beginning in March 2013.

(R. 328.)

At his initial

visit on March 12, 2013, Plaintiff presented with posterior
thoracic aching, right shoulder muscle aching, right sided lumbar

3

aching, and right knee muscle aching.

(Id.)

His “Current Problem

List” identified the following: sacroiliitis, degeneration of
cervical intervertebral disc, degeneration of lumbar or lumbosacral
intervertebral brachial neuritis or radiculitis, lumbago, radicular
low back pain, and unspecified myalgia and myositis.

(R. 329-30.)

Physical examination findings included pain behaviors consistent
within the expected context of disease; restricted movement in all
directions; normal posture and intact gait; normal and symmetrical
reflexes; negative straight leg raising; orientation to person,
place, and general circumstances; and appropriate mood and affect.
(R. 331.)

Dr. Calder assessed Plaintiff with back pain, mainly

axial in nature, and he planned to continue Plaintiff’s treatment
and see him again in three months.

(R. 332.)

On April 23, 2013, Plaintiff complained that his right lower
lumbar pain flared up about twelve days previously.

(R. 333.)

He

also reported aching behind the knees, in his right shoulder, and
in the mid thoracic area.

(R. 333-34.)

Physical examination

showed restricted movement, muscle spasms in the lumbopelvic region
and right multifidus, normal gait and posture, negative straight
leg raising, normal mental status.

(R. 337.)

Dr. Calder

administered a trigger point injection which he noted had been
helped in the past.

(Id.)

Plaintiff presented similarly in June

2013 and was given another steroid injection after it was noted
that Plaintiff reported good relief with the previous injection for

4

almost two months.

(R. 339-42.)

September 2013 office notes indicate that Plaintiff continued
to have pain, he needed to have his shoulder replaced but he wanted
to hold off as long as he could, and the right lower lumbar
injections had helped him greatly.

(R. 344.)

Physical exam was

similar to those previously recorded and Plaintiff received another
injection.

(R. 348.)

On December 19, 2013, Dr. Calder noted that Plaintiff
presented with complaints of right sided thoracic pain, right
shoulder pain, right low back pain, and bilateral knee pain.
349.)

(R.

Plaintiff reported that he had no improvement with the

injection he had at his previous appointment.

(Id.)

He continued

to take Oxycontin, Oxycodone, and ipbuprofen for his pain and said
he got some relief from using a heating pad.

(Id.)

Plaintiff also

said that his pain was getting worse and it was hard to do any
tasks.

(Id.)

Physical examination of the head/neck and shoulders

showed moderate tenderness in the midline, and examination of the
spine, ribs, and pelvis showed movement restricted in all
directions, normal stability, and palpation caused pain at the
right posterior superior iliac spine.

(R. 351.)

Plaintiff had

muscle spasms in the lumbopelvic region, he had normal posture,
gait, and reflexes, and the straight leg test was negative.

(Id.)

Dr. Calder found that Plaintiff was oriented to person, place, time
and circumstances, and his mood and affect were appropriate.

5

(Id.)

After noting that pain medications helped but did not alleviate the
pain, Dr. Calder adjusted the medication regimen and administered
another trigger point injection.

(R. 352.)

In March 2014–-Plaintiff’s first visit with Dr. Calder after
the January 2, 2014, alleged disability onset date–-Plaintiff
reported that the December injection had provided about fifty
percent relief until a week before his office visit and he had been
much worse since the injection wore off.

(R. 353.)

Dr. Calder

noted that Plaintiff had ongoing back pain that was usually
controlled with medications but he had flared in his right low back
and base of his neck.

(R. 357.)

Dr. Calder added that Plaintiff

used his medications as prescribed without side effects.
administered another trigger point injection.

(Id.)

He

(Id.)

On September 17, 2014--Plaintiff’s last office visit with Dr.
Calder before the September 30, 2014, date last insured–-Plaintiff
reported fifty percent improvement for six weeks and told Dr.
Calder that he knows when it is time to return for repeat trigger
point injections.
injection.

(R. 420.)

Dr. Calder administered another

(Id.)

In December 2014, Plaintiff presented with posterior lumbar
pain, right knee pain, left foot pain, posterior thoracic pain,
right shoulder pain, and right arm numbness.

(R. 420.)

He

reported that his overall functioning, daily activities, mood, and
work duties had declined since his September 2014 visit.

6

(Id.)

Musculoskeletal examination showed the following: Plaintiff had
moderate tenderness in the midline of head/neck and shoulder
girdle; spinal movement was restricted in all directions; he had
normal strength and tone in all extremities; he had muscle spasms
in various areas; he had a normal gait and normal posture; straight
leg raising was negative; and he had normal orientation, mood, and
affect.

(R. 423-24.)

Dr. Calder summarized Plaintiff’s history,

noting he had ongoing back pain, focal pain in the low back and
right neck, injections had helped part of his low back pain, and
lower back pain associated with degenerative disc disease was
controlled with medications.

(R. 424.)

Dr. Calder planned to

administer another trigger point injection and continue Plaintiff
on oxycontin and oxycodone.

(Id.)

In March 2015, Plaintiff again reported pain in multiple
areas.

(R. 406.)

Plaintiff said he had good days and bad days

with the pain and noted that his work duties and over-all
functioning were worse and his daily activities, mood,
relationships, and sleep patterns remained the same.

(R. 406.)

Plaintiff presented similarly in May but noted that he periodically
had depressive symptoms and he had anxiety symptoms.

(R. 540-42.)

No problems were noted in his mental status examination.
42.)

(R. 541-

Plaintiff reported the same mental health symptoms in July

2015 and said he continued with pain in multiple areas, he had just
had surgery for a torn meniscus and was going to physical therapy,

7

his pain prevented him from doing 50-75% of his work/chores, and
his work duties and overall functioning were worse.

(R 559, 561.)

Examination was similar to that recorded previously and Plaintiff
received another trigger point injection.

(R. 562-63.)

Plaintiff

reported continuing pain, mental health issues, and decreased
function in August 2015 and received additional trigger point
injections.
2.

(R. 569-73.)

Mental Health Impairments
In addition to Dr. Calder’s notations beginning in May 2015

that Plaintiff reported periodic depressive and anxiety symptoms
and the normal mental status evaluation findings throughout Dr.
Calder’s treatment of Plaintiff (see, e.g., R. 540-42), notes from
the Carroll Medical Group indicate Plaintiff had previously
reported that he had a depression problem (see, e.g., R. 375).
October 2013 records note that Plaintiff wanted to discuss his
depression.

(R. 375.)

He stated it was related to seasons and

started in fall and wintertime.

(Id.)

He was started on

medication for his “depression related to seasons.”

(Id.)

On December 31, 2013, Plaintiff reiterated the seasonal nature
of his depression and said in the past he did not take medication
in the summer.

(R. 374.)

The provider advised Plaintiff that it

was important to take the medication all year because it built up
the levels in the blood.

(Id.)

On January 28, 2014–-the first visit with this provider
8

following the January 2, 2014, alleged onset date--Plaintiff
reported that he felt better but “not great.”

(R. 371.)

Plaintiff

told the provider that he had a lot of financial and health issues
going on, he did not want to increase his Prozac dosage, he did not
want to make a follow up appointment, and he would call if he had
any problems.

(Id.)

Plaintiff also reported that he was in the

family business and it was hard for him to work.

(Id.)

On April 1, 2014, Plaintiff said he started to feel extremely
anxious in the evening and the provider advised that a medication
adjustment was indicated.

(R. 370.)

Plaintiff did not see the provider again until September 25,
2014, at which time the provider indicated that he had increased
Plaintiff’s Prozac in April and Plaintiff rarely took Xanax for
anxiety.

(R. 436.)

Plaintiff said the Prozac was working great

but he felt he was slipping a little during the preceding month.
(R. 436.)

The provider increased Plaintiff’s Prozac dosage, gave

Plaintiff a prescription for Xanax to be used as needed, and
discussed seasonal affective disorder including spending time in a
brightly lit area.

(R. 436.)

This was the last visit with the

provider before the September 30, 2014, date last insured.
In May 2015, Plaintiff reported that he felt good and the
provider planned to continue his medication regimen.

(R. 534.)

August 2015, Plaintiff presented with severe anxiety and wanted

In

disability papers filled out.

(R. 528.)

9

The provider noted that

“[h]e is mostly on disability for physical things.

He has a bad

back, knee things and has had rotator cuff surgeries.
extremely anxious.”

(Id.)

He is

Plaintiff said he rarely took the Xanaz

for anxiety because he did not like to take it often. (Id.)
Plaintiff also said it was getting harder and harder for him to
focus and concentrate but he was not depressed.
provider adjusted Plaintiff’s medication regimen.

(Id.)

The

(Id.)

B. Opinion Evidence
The only opinions issued during or close to the time period at
issue are those of State agency reviewers, Richard W. Williams,
Ph.D., and Candelaria Legaspi, M.D.

(R. 81-88.)

On April 30,

2014, Dr. Williams concluded that Plaintiff had the medically
determinable impairment of Affective Disorders which was non
severe.

(R. 84.)

He completed a Psychiatric Review Technique

(“PRT”) and found that Plaintiff had no restrictions of activities
of daily living, no difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, persistence, or
pace, and no repeated episodes of decompensation, each of extended
duration.

(R. 85.)

On May 5, 2014, Dr. Legaspi completed a Physical Residual
Functional Capacity Assessment.

(R. 86-88.)

She made the

following findings: Plaintiff could occasionally lift twenty pounds
and frequently lift ten pounds; he could stand and/or walk for
about six hours in an eight-hour workday; he could sit for about

10

six hours in an eight-hour workday; his ability to push and/or pull
was not limited other than indicated for lift and/or carry; he
could frequently climb ranps/stairs and ladders/ropes/scaffolds; he
could frequently balance and stoop; he was unlimited in other
postural categories; he was limited in right overhead reaching; and
he was unlimited in handling, fingering, and feeling.

(R. 87-88.)

In her November 2015 opinions, Sarah Fratalli, M.D., opined
that Plaintiff had extensive physical and mental limitations which
would preclude him from performing even low stress jobs.

(See,

e.g., R. 592, 602-04.)
C. ALJ Decision
In his January 19, 2016, Decision, ALJ Staller concluded that
Plaintiff had the following severe impairments:

bilateral knee

osteoarthritis; shoulder impingement and status-post right shoulder
surgery; degenerative disc disease of the lumbar, thoracic, and
cervical spine; and obesity.

(R. 21.)

He also found that

Plaintiff had other medically determinable impairments including
mental impairments, characterized as depression and anxiety, which
were non-severe.

(Id.)

ALJ Staller explained the basis for this

determination, including his focus on evidence with respect to the
date last insured and assessments of the opinions of Dr. Williams
and Dr. Frattali.

(R. 22-23.)

The ALJ gave great weight to the

opinion of Dr. Williams and he did not accept Dr. Frattali’s
assessment for several reasons including the fact that the form

11

opinion was completed over a year after the date last insured and
it corresponded with treatment notes indicating greater symptoms
after the relevant time period.

(Id.)

After concluding that Plaintiff did not have an impairment or
combination of impairments that met or equaled a listing (R. 24),
ALJ Staller assessed Plaintiff to have the residual functional
capacity (“RFC”) for light work with limitations (R. 25).

He found

that Plaintiff could
frequently climb ramps or stairs, but never
climb ladders, ropes, or scaffolds. He can
frequently balance. The claimant can
occasionally stoop, kneel, crouch, and crawl.
He can occasionally reach overhead with both
upper extremities, and he can frequently
reach in all other directions with both upper
extremities as well as frequently handling or
fingering with both upper extremities.
(R. 25.)
In explaining his RFC, ALJ Staller provided several reasons
for assigning little weight to Dr. Frattali’s opinions regarding
Plaintiff’s physical capacity.

(R. 29.)

He also provided several

reasons for assigning Dr. Legaspi’s opinion great weight overall.
(R. 28.)
The ALJ then found that Plaintiff was unable to perform his
past relevant work but he was able to perform other jobs that
existed in significant numbers in the national economy.
32.)

(R. 30-

He therefore concluded that Plaintiff was not under a

disability as defined in the Social Security Act from January 2,

12

2014, through September 30, 2014.

(R. 32.)

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. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.

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).
13

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. 31-32.)
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.

14

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
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
15

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
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
16

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

As set out above, Plaintiff asserts the ALJ erred on the
following bases: 1) substantial evidence does not support the ALJ’s
step two evaluation; 2) substantial evidence does not support the
ALJ’s evaluation of opinion evidence; 3) the ALJ

erred in his

evaluation of Plaintiff’s symptoms; and 4) the ALJ did not properly
consider Plaintiff’s obesity.
A.

(Doc. 12 at 1-2.)

Step Two
Plaintiff first contends ALJ Staller erred in finding

Plaintiff’s depression and anxiety to be non-severe impairments.
(Doc. 12 at 8.)

Defendant maintains the ALJ properly concluded

they were non-severe based on their short-term or seasonal nature
and the treating physician assessments.

(Doc. 13 at 12-13.)

The

Court concludes Plaintiff has not satisfied his burden of showing
error on the basis alleged.
An impairment is not severe if it does not significantly limit
the ability to do basic work activities.

20 C.F.R. § 404.1522.

Thus, the mere existence of a diagnosis does not establish severity
17

because the central consideration is the functional limitation
caused by the impairment.

See, e.g., Jones v. Sullivan, 954 F.2d

125, 129 (3d Cir. 1991).
In support of his argument that ALJ Staller erred in finding
his anxiety and depression to be non-severe, Plaintiff does not
present an accurate review of the basis for ALJ Staller’s findings
contained in the Decisions’s extensive analysis.
10-11; R. 21-24.)

(See Doc. 12 at

Moreover, Plaintiff does not point to any

evidence of record in either his supporting brief or reply brief
related to his mental health impairments before the date last
insured.

(See Doc. 12 at 4, 8-12; Doc. 14 at 1-4.)

Therefore,

Plaintiff has not met his burden of showing error.2
B.

Opinion Evidence
Plaintiff next asserts substantial evidence does not support

the ALJ’s evaluation of opinion evidence provided by Dr. Frattali
and Dr. Legaspi.

(Doc. 12 at 12-16.)

Defendant responds that the

ALJ’s evaluation of Dr. Fratalli’s opinions is supported by
substantial evidence.

(Doc. 13 at 17.)

The Court concludes

Plaintiff has not satisfied his burden of showing error on the
basis alleged.
Plaintiff is correct that a treating physician’s opinion is

2

Plaintiff’s assertion that limitations in concentration,
persistence or pace should have been addressed in the RFC even with
the non-severe finding (Doc. 12 at 11; Doc. 14 at 2) is not a step
two consideration and will be discussed later in the text.
18

entitled to controlling weight when it is well supported and
consistent with substantial evidence in the record.

(Doc. 12 at 12

(citing 20 C.F.R. § 404.1527(c)(2); Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000)).)

He is also correct that Fargnoli v.

Massanari, 247 F.3d 34 (3d Cir. 2001), requires the ALJ to consider
all relevant evidence at step four.
Fargnoli, 247 F.3d at 41).)

(Doc. 12 at 13 (citing

However, neither Fargnoli nor the

regulation requires the ALJ to consider all evidence of record–relevancy is the key consideration.
In this section of his brief, Plaintiff discusses Dr.
Frattali’s opinions about Plaintiff’s physical impairments.
12 at 13-16.)

(Doc.

He states that Dr. Frattali’s opinions are supported

by “restricted movement of the spine, pain at the right posterior,
superior iliac spine with palpation and moderate tenderness in the
midline.”

(Doc. 12 at 13 (citing R. 331, 336, 342, 351, 356).)

Plaintiff does not elaborate how these records from Dr. Calder
support Dr. Frattali’s opinions.

(Doc. 12 at 13.)

He merely

asserts that “if the ALJ had any doubt regarding the basis for Dr.
Frattali’s opinions, he should have requested a clarification from
Dr. Frattali regarding Hamm’s residual functional capacity.”

(Doc.

12 at 14 (citations omitted).)
ALJ Staller agreed that objective evidence supported the
conclusion that Plaintiff had severe impairments as well as pain,
tenderness, muscle spasms, and limited range of motion.

19

(R. 26-27

(citations omitted).)

However, he explained several reasons why he

found Dr. Frattali’s opinions were entitled to little weight.
began by noting that Dr. Fratalli
essentially suggested that, since 2003, the
claimant has had a number of catastrophic
limitations, including the inability to sit,
stand, or walk in any combination on a fulltime basis, only marginal use of his neck,
arms, hands, and fingers, and a need to be
absent almost 1 workweek per month (See 19F;
20F (reiterating as well several suggested
mental impairments, which are rejected for
the reasons discussed earlier)).
The undersigned acknowledges that Dr.
Frattali is a long-term source. This
relationship affords advantages, such as
longitudinal perspective, that generally
merit significant deference.
However, as was also the case with
respect to this provider’s unpersuasive
mental capacity assessment, other factors in
the record heavily weigh against the
credibility of this opinion. Most obviously,
the claimant’s own actions have demonstrated
that this opinion is grossly inaccurate.
Whereas Dr. Frattali said that theh claimant
had been this limited since 2003 (see 19F/5),
the record shows that he was not only working
at that time, but he was sustaining highly
demanding full-time work, both that year and
over many subsequent years (See e.g. 5D/3)
noting earnings of over $26,000 in 2003, with
even higher subsequent earings); 2E/2
(explaining in great detail how exertionally
and non-exertionally difficult his work was).
Cf. 18E; Hearing Testimony (suggesting
lesser exertion, but nonetheless
acknowledging far greater past abilities)).
Even setting this issue aside, however,
the overall record is not consistent with the
nature or degree of limitations suggested in
these opinion forms, which were filled out
20

He

well over a year after the date last insured.
As discussed above, the claimant’s objective
clinical signs and treatment modalities,
including Dr. Fratalli herself, are far more
conservative than one would expect given
anywhere near the level of impairment
suggested (See e.g. 4F/22, 26 (including
normal and painless neck range of motion, 31
(including normal gait; 8F/5, 20; 9F/7
(noting “controlled” back pain). Cf. 16F
(repeatedly alleging worsening over time)).
This inconsistency suggests heavy reliance on
unsupported subjective allegations. It also
shows an incomplete understanding of the
claimant’s longitudinal history, particularly
as it relates to the nature and chronology of
his work and impairments. Accordingly,
beyond generally supporting physical
“severity” and a residual functional capacity
no greater than that found above, this
opinion evidence is not persuasive.
(R. 29.)
Other than setting out the citations to the record noted above
as evidence that clinical findings supported the opinion, Plaintiff
does not meaningfully take issue with the assessment itself.

The

Plaintiff cannot meet his burden of showing error with conclusory
statements regarding clinical findings, the ALJ’s duty to seek
clarification about the basis of an opinion, the relevance of
evidence which bears upon an onset date, and the weight assigned a
State agency medical consultant.3

(See Doc. 12 at 13-15; Doc. 14

3

First, Plaintiff’s criticism of ALJ Staller’s consideration
of Dr. Legaspi’s opinion is not developed as a separate issue but
as a reason the ALJ erred in his evaluation of Dr. Fratalli’s
opinions. (See Doc. 12 at 15.)
Second, in his reply brief, Plaintiff additionally criticizes
certain statements made in Defendant’s reply brief. (Doc. 14 at 521

at 4-6.)

Finally, a mere assertion that substantial evidence does

not support the ALJ’s evaluation of the medical opinion at issue
(Doc. 12 at 16) is unavailing, particularly where the ALJ provides
a detailed rationale for his assessment.4

For all of these

reasons, Plaintiff has not met his burden of showing that remand is
required for further evaluation of Dr. Fratalli’s opinion.
C.

Symptom Evaluation
Plaintiff asserts error on the basis that ALJ Staller

improperly assessed his symptoms.

(Doc. 12 at 16-20.)

Defendant

responds that the ALJ properly evaluated Plaintiff’s subjective
complaints.

(Doc. 13 at 19.)

The Court concludes Plaintiff has

not shown the alleged error is cause for reversal or remand.
In support of the claimed error, Plaintiff contends the ALJ’s
citation to his heavy work near the onset day should not have been
used to discredit him, he improperly noted that Plaintiff’s
allegations were not supported by objective evidence, he did not
consider that pain and psychological symptoms may exacerbate one
another, he noted medication had been generally effective in
alleviating symptoms, he failed to state that having an improved

6.) The Court does not rely on these statements in deciding
whether the ALJ’s assessment of opinions was supported by
substantial evidence and, therefore, further discussion of the
allegations is not warranted.
4

Plaintiff concludes that “substantial evidence does not
support the ALJ’s evaluation of Dr. Garg’s opinion.” (Doc. 12 at
16.) No opinion from Dr. Garg is found in this record.
22

condition does not mean the claimant is not disabled, and he failed
to conduct a proper pain analysis.

(Doc. 12 at 17-19.)

In general, Plaintiff does not acknowledge that the ALJ relied
on multiple factors in assessing Plaintiff’s residual functional
capacity, many of which are not mentioned in Plaintiff’s supporting
or reply briefs.

(See R. 26-30; Docs. 12, 14.)

A review of

Plaintiff’s limited discussion of many of the issues raised in
support of this claimed error indicates he has not met his burden
of showing that the ALJ’s symptom evaluation is cause for reversal
or remand.
First, Plaintiff’s criticism regarding heavy work (Doc. 12 at
17) is only one portion of the ALJ’s consideration of Plaintiff’s
work history and the implications of Plaintiff’s reports about it.
For example, the ALJ noted a discrepancy concerning Plaintiff’s
income records, various reports about the exertional level of
recently performed work, and the fact that “the vast majority of
the records . . . fall either during periods when he was performing
demanding work, or after his date last insured . . . suggest[ing]
both a lesser degree of impairment as of the date last insured and
worsening after this date.”

(R. 27.)

Second, the ALJ did not find that Plaintiff’s allegations were
not supported by objective evidence (see Doc. 12 at 18), but rather
found that some allegations were objectively supported (see R. 2627).

In support of this assertion of error, Plaintiff posits that

23

“an ALJ may not discredit testimony of a claimant’s symptoms solely
because there is no medical evidence to support it.”
18 (citing SSR 96-7p, at *1).)

(Doc. 12 at

Plaintiff does not expand upon his

conclusory assertion–-he does not show how the ALJ ran afoul of the
SSR 96-7p directive.

Further, any attempt to do so would be

unavailing in that ALJ Staller’s explication provided multiple
bases for his assessment–-he did not discredit symptoms solely
because of a lack of medical evidence.

(See R. 27-28).

Third, Plaintiff contends that his criticism regarding the
ALJ’s failure to consider the overlay of his physical and mental
impairments is relevant because Dr. Frattali opined that his
depression and anxiety affected his physical condition.
at 18.)

(Doc. 12

Because the Court has concluded Plaintiff has not shown

that ALJ Staller’s assessments of Dr. Frattali’s opinions are not
supported by substantial evidence, reliance on these opinions in
the context presented here does not provide the suggested support.
Interestingly, Plaintiff never reviews records generated from the
alleged onset date through the date last insured which address his
mental health issues.

(See Docs. 12, 14.)

Fourth, Plaintiff’s criticism of the ALJ’s statement regarding
the effectiveness of medication (Doc. 12 at 18) does not support
the claimed error.

Plaintiff does not dispute the veracity of the

ALJ’s statement that “Terrence Clader, M.D., a treating pain
management specialist, indicated that around the date last insured,

24

the claimant’s pain medication had generally been effective in
alleviating, if not controlling the claimant’s pain symptoms.”
28 (citing Ex. 9F/7).)

(R.

Although Plaintiff finds fault with the

ALJ’s failure to “note that having an improved condition does not
mean that the claimant is not disabled,” (id. (citing Morales, 225
F.3d at 319)), he cites no authority to support the proposition
that the ALJ was required to make such a notation.

Importantly,

the ALJ did not support his determination that Plaintiff was not
disabled during the relevant time period on this statement alone
nor does Plaintiff show that the ALJ relied too heavily on this one
factor.
Finally, Plaintiff maintains the ALJ failed to conduct a
proper pain analysis.

(Doc. 12 at 19.)

The only specific example

provided is that ALJ Staller did not discuss the side effects of
medications identified by Dr. Frattali.
78, 591).)

(Doc. 12 at 19 (citing R.

The example provided does not support the general

assertion in that, as noted above, Plaintiff has not shown error in
the ALJ’s discounting of Dr. Frattali’s opinion.

Furthermore, in

March 2014 (during the relevant time period) Dr. Calder opined
Plaintiff used his medications as prescribed without side effects.
(R. 357.)
In sum, the foregoing discussion shows that Plaintiff has not
shown that his asserted criticisms of the ALJ’s consideration of
his symptoms demonstrate error when considered individually and are

25

further undermined by the fact that the ALJ presented numerous
reasons for his RFC assessment which Plaintiff does not dispute.
Therefore, Plaintiff has not shown that the asserted error is cause
for reversal or remand.
D.

Obesity and Other RFC Considerations
1.

Obesity

Finally, Plaintiff alleges the ALJ did not properly consider
his obesity in combination with his other impairments. (Doc. 12 at
20.)

Defendant responds that the claimed error is without merit in

that the ALJ sufficiently considered obesity as evidenced by the
facts that he found it to be a severe impairment and discussed it
throughout his decision.

(Doc. 13 at 24-25.)

The Court concludes

Plaintiff has not shown that the alleged error is cause for
reversal or remand.
With this argument, Plaintiff does not point to specific
functional limitations resulting from his obesity.

As noted by

Defendant, generic assertions are not enough in that relevant
authority provides that “‘[w]e will not make assumptions about the
severity or functional effects of obesity combined with other
impairments.’”

(Doc. 13 at 25 (quoting SSR 02-01p, 2000 WL 628049,

at *6; citing McDermott v. Colvin, No. 15-984, 2016 WL 7007558, at
*8 (M.D. Pa. Nov. 7, 2016)).)

Although Plaintiff criticizes

Defendant’s response, he does not provide specifics about the
functional effects of his obesity but rather generally references a

26

potential impact of obesity on Plaintiff’s back and knee
impairments and SSR 02-01p’s warning “that the effect of obesity
can be exacerbated with certain conditions, including joint related
impairments.”

(Doc. 14 at 9-10.)

Given ALJ Staller’s discussion

of obesity in his explanation for the RFC assessment and his
specific notation that obesity was accounted for in the RFC finding
(R. 28), Plaintiff’s conclusory assertions do not satisfy his
burden of showing error on the basis alleged.
2.

Anxiety and Depression
Plaintiff contends in his step two discussion that the ALJ

found that his non-sever medically determinable impairments of
anxiety and depression caused mild limitations in concentration,
persistence, or pace but the ALJ did not include any related limits
in his RFC assessment.

(Doc. 12 at 10 (citing R. 21-23).)

In his supporting brief, Plaintiff cites no authority for the
proposition that it is error for the ALJ not to include such
limitations in his RFC.

(See Doc. 12 at 10-11.)

In his reply

brief, Plaintiff cites cases from the Northern District of Illinois
and the Northern District of Indiana in support of his assertion
that the claimed error is cause for remand.

(Doc. 14 at 2 (citing

Alesia v. Astrue, 789 F. Supp. 2d 921, 933 (N.D. Ill. 2011);
Koswenda v. Astrue, No. 08C4732, 2009 WL 958542, at *5 (N.D. Ill
Apr. 2, 2009); Paar v. Astrue, No. 09C5169, 2012 WL 123596, at *13
(N.D. Ill. Jan. 17, 2012); Winfield v. Comm’r of Soc. Sec., No.
27

2:11-cv-432, 2013 WL 692408, at *4-5 (N.D. Ind. Feb. 25, 2013)).)
The Court rejects Plaintiff’s averment that the cases support
remand in the circumstances presented here.

First, each of the

cases is distinguishable: in Alesia, the plaintiff’s non-severe
depression resulted in mild limitations in three categories-activities of daily living, social functioning as well as
concentration, persistence or pace, and the plaintiff’s past work
was skilled,5 789 F. Supp. 2d at 933-34; in Koswenda, the plaintiff
had the severe impairments of personality disorder and affective
mood disorder at step two and these were the only severe
impairments identified, 2009 WL 958542, at *3; in Paar, the
plaintiff was found to have mild limitations in three categories-activities of daily living, social functioning as well as
concentration, persistence or pace, 2012 WL 123596, at *13; and in
Winfield, although the ALJ found that the plaintiff had mild
limitations in the three broad categories identified above, she had
“moderate” symptoms or difficulties by other measures, 2013 WL
692408, at *4.

Second, ALJ Staller noted that his finding of mild

limitations in the area of concentration, persistence, or pace was
based not on objective evidence during the relevant time period but
on his decision to generally afford Plaintiff “some benefit of the
doubt given the impact of chronic pain.”
5

(R. 23.)

Third,

Plaintiff’s past relevant work was unskilled and the VE was
asked to consider a hypothetical individual with Plaintiff’s work
experience. (R. 74, 75.)
28

Plaintiff’s attorney was given an opportunity to question the
vocational expert (“VE”) at the November 23, 2015, hearing, and his
attorney did not include any mental health consideration in any of
her questions to the VE.

(See R. 74-79.)

Fourth, the ALJ provided

an extensive explanation for the basis for his RFC assessment and,
as dicsused previously, Plaintiff has not shown that his
determination was not based on substantial evidence.

Therefore,

the Court concludes Plaintiff has not shown that the ALJ’s failure
to specifically account for mild limitations in concentration,
persistence, or pace is cause for remand.
V.Conclusion
For the reasons discussed above, the Court concludes that
Plaintiff’s appeal of the Acting Commissioner’s decision is
properly denied.

An appropriate Order is filed simultaneously with

this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 8, 2018

29