Quinones Guzman v. Berryhill

Filing 12

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 2/6/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAKIRA QUINONES GUZMAN,

:
:CIVIL ACTION NO. 3:17-CV-1222
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 protectively

filed applications for benefits in November 2015 alleging a
disability onset date of August 25, 2015.

(R. 9.)

After she

appealed the initial denial of the claims, a hearing was held on
February 17, 2017, and Administrative Law Judge (“ALJ”) Patrick
Cutter issued his Decision on March 13, 2017, concluding that
Plaintiff had not been under a disability during the relevant time
period.

(R. 16.)

Plaintiff requested review of the ALJ’s decision

which the Appeals Council denied on June 5, 2017.

(R. 1-5.)

In

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

(R. 1.)

Plaintiff filed this action on July 12, 2017.

(Doc. 1.)

asserts in her supporting brief that the Acting Commissioner’s

She

determination is error for the following reasons: 1) substantial
evidence does not support the ALJ’s step two determination; 2) the
ALJ’s RFC assessment is not supported by substantial evidence; 3)
substantial evidence does not support the ALJ’s evaluation of
Plaintiff’s diabetes; 4) substantial evidence does not support the
ALJ’s step four evaluation; and 5) the ALJ’s multiple symptom
evaluation errors require reversal.

(Doc. 9 at 2.)

After careful

review of the record and the parties’ filings, the Court concludes
this appeal is properly denied.
I. Background
Plaintiff was twenty-one years old on the alleged disability
onset date.

(R. 9 at 3.)

She has a high school education and

reports past relevant work as a fast food worker, collector,
salesperson, nurse assistant, hand packager, and medical assistant.
(Id.)

Plaintiff alleges that her inability to work is limited by

diabetes, high blood pressure, high cholesterol, high
triglycerides, and acute pancreatitis.

(R. 165.)

A. Medical Evidence
On December 31, 2014, Plaintiff was seen at the emergency room
at Pinnacle Health Harrisburg with the chief complaint of high
blood sugar.

(R. 329.)

By history, she reported she had type 1

diabetes and sought evaluation for symptoms of vomiting and
hypoglycemia since the previous night.

(Id.)

Plaintiff stated she

did not take her insulin as prescribed because of insurance
2

problems and she had been admitted to the hospital a month earlier
due to diabetic ketoacidosis.

(Id.)

Included in the differential

diagnosis section of the report were pancreatitis, hyperglycemia,
and diabetic ketoacidosis.

(Id.)

controlled diabetes mellitus.

The final diagnosis was poorly

(Id.) Hospital records indicate

there was a plan for Plaintiff to meet with a social worker to help
with medication issues.

(R. 330-31, 33.)

She was also directed to

follow up with Hamilton Health Center as soon as possible.

(R.

333.)
Plaintiff was seen at Hamilton Health by Burhanuddin Farooqi,
M.D., on January 23, 2015, for medication refill and complaints of
a cold.

(R. 243.)

Dr. Farooqi noted that Plaintiff had diabetes

mellitus “without mention of complication” and that her goal was to
keep fasting blood sugar under 130 and her A1C less than 6.5.
243.)

(R.

Dr. Farooqi also noted that he discussed diabetic diet with

Plaintiff.

(R. 244.)

Plaintiff was seen again on January 29, 2015, by Shiku Idress,
D.O., at Hamilton Health with the chief complaint of “Medline xa.”
(R. 244.)

The “Plan” was medication renewals with some changes.

(Id.)
On February 27, 2015, Plaintiff presented to Pinnacle Health
emergency room with the chief complaint of sore throat.

(R. 323.)

Doctor Notes state that Plaintiff reported that her sugars had been
within normal range and she had no evidence of diabetic

3

ketoacidosis.

(R. 324.)

Plaintiff presented to the Pinnacle Health emergency room with
abdominal pain on May 29, 2015, at 3:46 p.m.

(R. 312.)

Doctor

Notes indicate Plaintiff complained of sharp epigastric pain and
nausea which had started in the morning and felt like when she had
pancreatitis in the past.

The May 29th

(Id.)

record shows that

the disposition of the visit was that Plaintiff left the emergency
room at approximately 8:16 p.m.

(Id.)

Plaintiff was seen on July 1, 2015, by Dr. Idress at Hamilton
Health with the chief complaint of “Medline xa.”
“Plan” was medication renewals with some changes.

(R. 242.)

The

(Id.)

On July 3, 2015, Plaintiff complained of rib and back pain
when she went to the Pinnacle Health emergency room.

(R. 304.)

Plaintiff was diagnosed with pancreatitis (chronic) and instructed
to follow up with her primary care provider in one to two days and
return to the emergency room if her symptoms worsened.

(R. 304,

306.)
Plaintiff again sought emergency care at Pinnacle Health on
July 14, 2015.

(R. 257.)

She was found to be in diabetic

ketoacidosis, was given IV fluids, and admitted for further
evaluation and treatment.

(Id.)

Doctor Notes state that Plaintiff

was warned about not taking her insulin, she realized this, and she
had been in the situation before.

(Id.)

On August 29, 2015, Plaintiff presented to the emergency room

4

with high blood sugar.

(R. 294.)

By history, the provider

reported that Plaintiff frequented the emergency room with diabetic
ketoacidosis but this time she said she had been taking her
medication as prescribed.

(Id.)

Plaintiff was again admitted with

this diagnosis although she had earlier tried to sign out against
medical advice.

(R. 296.)

Doctor notes indicate that Plaintiff

was concerned because she had a party to go to but medical
personnel convinced her of the seriousness of her condition and she
agreed to be admitted.

(R. 296.)

Plaintiff was admitted to Reading Health on October 29, 2015,
with a diagnosis of diabetic ketoacidosis and discharged on
November 2, 2015, with the same diagnosis.

(R. 392.)

The provider

noted Plaintiff had recently relocated from Harrisburg and she said
she was taking her insulin but she had not checked her blood
glucose.

(R. 392, 396.)

Other notes indicate she had lost her

glucometer when she moved from Harrisburg and she was not taking
her coverage insulin.

(R. 404.)

Endocrinology consultation

records show that Plaintiff admitted she had missed insulin doses.
(R. 399.)

Historically, Plaintiff reported diabetes since age ten,

she had been on insulin therapy for years, and she did not take her
diabetes medications regularly.

(Id.)

Notes also state that

Plaintiff did not adhere to good food choices for diabetes control
and she had last seen a diabetes educater “a while ago.”

(R. 399.)

Although “complications of diabetes” were noted, they were not

5

specifically identified.

(Id.)

Symptom evaluation was negative,

including weight change, blurred vision, numbness, tingling, and
myalgia.

(Id.)

On reference of Surendra Sivarajah, M.D., Plaintiff had a
follow-up visit at Reading Health on November 17, 2015, with
Rondelle Longnecker, CRNP.

(R. 452-57.)

Notes repeat the testing

and medication dosage problems Plaintiff had experienced before her
hospitalization and state that Plaintiff reported she had not
missed doses or had hypoglycemic episodes since then.

(R. 452-53.)

Plaintiff also reported she had diabetes education about one year
earlier, timing of her meals was unpredictable, she had not been
doing home blood glucose readings regularly due to not having
strips, and she had no retinopathy or foot problems.

(R. 456.)

An

extensive Plan was recorded which included patient counseling,
education, and coordination of care.

(R. 456-57.)

On March 27, 2016, at 7:15 p.m. Plaintiff was seen at the
emergency room at Pinnacle Health Harrisburg with the chief
complaint of a boil on her head.

(R. 505.)

Doctors notes indicate

Plaintiff was hyperglycemic on arrival and she was given insulin
with IV fluids.

(R. 507.)

Her lab work showed possible early

diabetic ketoacidosis, and a note at 2:16 a.m. on March 28th
indicates that admission was required for watch of blood sugars and
symptom evaluation.
wanted to leave.

(Id.)

(Id.)

At 3:05 a.m., Plaintiff decided she

The Doctors Notes state that Plaintiff

6

understood the risk of leaving and she signed “against medical
advice paperwork.”

(Id.)

On April 6, 2016, Plaintiff again was seen at Pinnacle Health
emergency room.

(R. 482.)

She complained of nausea,

vomiting,

diarrhea, and diffuse abdominal discomfort for one day.

(Id.)

Because she failed to sufficiently improve, Plaintiff was
transferred to the ED observation unit for additional testing to
determine the need for admission versus the safety of discharge.
(R. 484.)

Plaintiff was discharged the next morning with a final

diagnosis of tachycardia and dehydration.

(R. 482, 494.)

Plaintiff said she had a follow-up appointment with her primary
care physician to maintain her home insulin and she was to be given
an endocrinology referral.

(R. 494.)

Plaintiff was admitted to Pinnacle Health ICU on May 23, 2016,
with diabetic ketoacidosis identified as the highest priority
diagnosis on admission.

(R. 470.)

History notes reference

frequent admissions with DKA, pancreatitis, hypertension and HLD.
(R. 471.)

On admission, Plaintiff claimed she had been taking her

medication as prescribed but she had run out of insulin the
preceding night and didn’t take a night or morning dose.

(Id.)

She had a doctor’s appointment scheduled for that morning to get
more insulin but felt too sick to go so she went to the emergency
room instead.

(Id.)

Plaintiff was discharged on May 29, 2016,

with discharge diagnoses of Diabetes type 1, acute pancreatitis,

7

HLD, and HTN.

(R. 470-71.)

On June 2, 2016, Plaintiff was seen by Dr. Idriss at Hamilton
Health “for routine diabetes exam after she was away for almost one
year.”

(R. 523.)

By history, Plaintiff presented no new

complaints and reported that she was not feeling tired or poorly.
(Id.)
On August 8, 2016, Plaintiff was seen at the Pinnacle Health
emergency room for left foot pain which she said developed after
she jumped off a rope into a river and landed on her left foot two
days earlier.

(R. 465, 466.)

Physical examination findings

include the notation of ecchymosis on the left foot and toes.1

(R.

466.)
Hamilton Health records indicate Plaintiff had an encounter
with Dr. Idriss on November 16, 2016, with the recorded chief
complaint of “Medline bb.”

(R. 523.)

Beyond medication notes and

renewals, no additional information is provided.

(Id.)

Plaintiff was seen at the emergency department at Chambersburg
Hospital on November 18, 2016.

(R. 518.)

Notes indicate that

Plaintiff had nausea, vomiting, diarrhea, body aches, and chills
which the provider thought were likely viral in nature.

(R. 519.)

The provider also reported that Plaintiff felt light headed with
positional changes, was tachycardic, and clinically appeared

1

“Ecchymosis” is the medical term for the common bruise.
https://www.healthline.com/health/ecchymosis.
8

dehydrated.

(Id.)

The provider noted that ten minutes after

evaluation, Plaintiff (who lived one and a half hours away) said
her ride had arrived and she did not want to wait for IV fluids and
laboratory analysis.

(R. 520.)

Based upon basic lab results, the

provider expressed concern for dehydration with renal insufficiency
as well as leukocytosis.

(Id.)

He explained his concern to

Plaintiff that it was unsafe for her to leave but she said she
must.

(Id.)

She was given medications and instructions to follow

up before being discharged against medical advice.

(Id.)

Hamilton Health records indicate Plaintiff had another
encounter with Dr. Idriss on December 9, 2016, with the recorded
chief complaint of “Medline jd.”

(R. 522.)

Beyond medication

notes and renewals, no additional information is provided.
B.

(Id.)

Hearing Testimony
At the outset of the hearing on February 17, 2017, ALJ Cutter

asked if there was anything outstanding that he needed before he
made his decision.

(R. 25.)

Plaintiff’s attorney responded that

he did not think so except perhaps something related to employment
which could be cleared up by reference to other records and
Plaintiff’s testimony.

(Id.)

At the end of the hearing,

Plaintiff’s attorney reiterated that there was nothing he wanted to
add.

(R. 36.)
Plaintiff testified that her diabetes affected her ability to

work because her sugar levels would be low or high while she was at
9

work which would require her to eat snacks, take extra breaks, and
frequently use the bathroom.

(R. 27.)

She added that

employers

were “really picky” about the snacking and didn’t approve of the
necessary breaks.

(Id.)

Upon questioning by her attorney, Plaintiff said her blood
sugars were high about two to three times per month.

(R. 28.)

She

explained that ever since she had been in the hospital she started
taking care of herself, did not eat as much junk food, and watched
what she ate but still got the high sugar level two to three times
per month.

(Id.)

Plaintiff said high readings (400-500) made her

feel dizzy, thirsty, and nauseous and she sweated a lot.

(Id.)

She added that she got more lows than highs, estimating that the
low readings occurred three to five times a month.

(R. 28-29.)

In

addition to feeling shaky and dizzy, Plaintiff said low levels (3040) made her feel immobile and someone else would have to give her
something to bring the level up.

(R. 29.)

Plaintiff also testified that her blood pressure caused
problems in that it was either high or low, her pulse was very high
and she was unable to stand or walk for a long time because she
felt like she was going to pass out.

(R. 27.)

She said that

episodes of high blood pressure happened every day when she woke
up, adding that it lasted for about half an hour after she took her
medication.

(R. 30.)

issue was rare.

(Id.)

She testified that the low blood pressure
Plaintiff’s attorney asked her if there was

10

“anything else in terms of symptoms,” and Plaintiff said there was
not.

(R. 31-32.)
Plaintiff described her daily activities at the time of the

hearing to include cleaning, cooking, watching TV, and “sleep all
day mostly.”

(Id.)

She estimated that she could probably clean

for an hour or two before she would start getting light headed, her
pulse started “acting up,” and her heart started racing.

(R. 31.)

When asked whether she had seen anyone other than Dr. Idriss
at Hamilton Health, Plaintiff responded that she had not.
3.

(R. 31.)

ALJ Decision
With his March 13, 2017, Decision, ALJ Cutter determined that

Plaintiff had the severe impairment of type 1 diabetes mellitus.
(R. 11.)

He found that Plaintiff had other medical conditions

which were not severe: left foot injury; hypertension; acute
pancreatitis; and a tibia fracture.

(R. 24.) ALJ Cutter based the

non-severe finding on his determination that there was no evidence
Plaintiff had symptoms related to these conditions that persisted
for twelve months or that they would affect Plaintiff’s ability to
perform basic work activities.

(R. 12.)

After finding that

Plaintiff did not have an impairment or combination of impairments
that met or equaled a listed impairment, ALJ Cutter determined she
had the residual functional capacity (“RFC”) to perform medium work
except she could not perform work at unprotected heights, contact
moving mechanical parts, or operate motor vehicles.

11

(R. 12.)

ALJ

Cutter next alternatively found Plaintiff could perform her past
relevant work as a fast foods worker as actually and generally
performed or she could perform other jobs which existed in
significant numbers the national economy.

(R. 14-15.)

Based on

these findings, the ALJ concluded that Plaintiff had not been under
a disability as defined in the Social Security Act from August 28,
2015, through the date of the decision.

(R. 16.)

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

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

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
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).
12

requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

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

20 C.F.R. § 404.1520(e); 416.920(e).

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

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

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

If the claimant satisfies this burden, then the Commissioner

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

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

As set out above, the instant decision was decided at step
four and alternatively at step five of the sequential evaluation
process when the ALJ found that Plaintiff could perform her past
relevant work as actually and generally performed, and she could

13

perform jobs that existed in significant numbers in the national
economy.

(R. 14-16.)
III. Standard of Review

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

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
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
14

security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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

In Cotter, the Circuit Court clarified that the ALJ must

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

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
15

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

As set out above, Plaintiff asserts the ALJ erred on the
following bases: 1) substantial evidence does not support the step
two determination; 2) the RFC assessment is not supported by
substantial evidence; 3) substantial evidence does not support the
evaluation of Plaintiff’s diabetes; 4) substantial evidence does
not support the step four evaluation; and 5) the ALJ’s multiple
symptom evaluation errors require reversal.
A.

(Doc. 9 at 2.)

Step Two
Plaintiff first argues that substantial evidence does not
16

support the ALJ’s step two determination that her left foot injury,
hypertension, acute pancreatitis, and tibia fracture are non-severe
impairments.

(Doc. 9 at 7 (citing R. 12).)

Defendant responds the

ALJ correctly found these impairments to be non-severe.
at 11.)

(Doc. 10

The Court concludes Plaintiff has not shown that the

alleged error is cause for reversal or remand.
The regulations provide that an impairment will be deemed a
medically determinable physical or mental impairment when it
results “from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques.

Therefore, a physical or

mental impairment must be established by objective medical evidence
from an acceptable medical source.”
416.921.

20 C.F.R. §§ 404.1521,

The regulations further provide that a claimant’s

“statement of symptoms, a diagnosis, or a medical opinion” will not
be used to establish the existence of an impairment.

Id.

Once a

medically determinable impairment is found, the determination is
made whether it is severe.

Id.

An impairment or combination of

impairments is not severe “if it does not significantly limit your
physical or mental ability to do basic work activities.”

20 C.F.R.

§§ 404.1522, 416.922.
If the sequential evaluation process continues beyond step
two, a finding of “not severe” regarding a specific impairment at
step two may be deemed harmless if the functional limitations

17

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
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 reiterates certain medical evidence in
support of the claimed error.

(Doc. 9 at 8-9; Doc. 11 at 1-2.)

She does not refute ALJ Cutter’s assessment that hypertension was
controlled with conservative treatment, the fracture and left foot
injury did not satisfy the regulatory durational requirement, and
18

the pancreatitis only caused minimal symptoms.

(See R. 12.)

Within the relevant legal framework set out above, sporadic
treatment for a condition or related symptom does not establish
severity.

See supra.

Assuming arguendo that the impairments identified were severe,
Plaintiff does not show that the error was harmful.

This case was

decided alternatively at step four or step five so the relevant
question is whether Plaintiff has shown that ALJ Cutter did not
properly characterize her symptoms and functional limitations.
See, e.g., Garcia, 587 F. App’x at 370.

Plaintiff does not even

attempt to make the required showing in the context of this claimed
error.

Therefore, the Court concludes Plaintiff has not satisfied

her burden of showing error on the basis alleged.
B.

RFC Assessment
Plaintiff contends the record contains no support for the

ALJ’s RFC assessment because the record does not contain an RFC
assessment from any physician.

(Doc. 9 at 10.)

Plaintiff first asserts the ALJ “erred by inferring treating
physician’s silence regarding [her] functional limitations to mean
that she is not disabled.”

(Doc. 9 at 10 (citing Barton v. Colvin,

Case No. 3:13-CV-1199(GTS) (N.D.N.Y. Sept. 15, 2015)).)

When

considered in context, ALJ Cutter’s statement that “[d]espite the
claimant’s allegations of disabling limitations, there is no
opinion from a treating provider to suggest the claimant’s
19

impairments preclude her from work activity” (R. 14) does not make
the inference suggested.

The statement comes after the ALJ

reviewed Plaintiff’s subjective complaints, summarized relevant
medical records, and explained the basis for his RFC.

(R. 13-14.)

As such, ALJ Cutter’s comment is merely a statement of fact:
Plaintiff alleged disabling symptoms and no opinion of a treating
source suggested her impairments precluded her from work activity.
Were it the only reason provided, the statement might be
characterized as an improper inference but that is not the case
here.

Thus, Plaintiff has not met her burden of showing error on

the basis of the alleged inference.
Plaintiff also states that the “relative lack of opinion
evidence in the file” triggered the ALJ’s duty to develop the
record by sending Plaintiff for a consultative examination.
9 at 11; Doc. 11 at 3.)

(Doc.

Defendant responds that an ALJ need not

rely on a medical opinion to make a disability determination or
require an ALJ to seek outside expert assistance.

(Doc. 10 at 16.)

The ALJ has the final responsibility to make a disability
determination.

20 C.F.R. § 404.1527(d), 416.927(d).

In making

this determination, an ALJ has a duty to develop a full and fair
record.

Boone v. Barnhart, 353 F.3d 203, 208 n.11 (3d Cir. 2004).

Although the duty does not relieve the claimant of her burden of
proof, Hess v. Sec’y of Health, Education, and Welfare, 497 F.2d
837, 840 (3d Cir. 2005), an ALJ “must secure relevant information

20

regarding a claimant’s entitlement to benefits,” Ventura v.
Shalala, 55 F.3d 900, 902 (3d Cir. 1995).

It is “incumbent upon

the [ALJ] to secure additional evidence needed to make a sound
determination.”
1985).

Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir.

The requirement does not necessarily come into play where

“there was sufficient evidence in the medical records for the ALJ
to make her decision.”

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).

If the record is inadequate for proper evaluation

of the evidence, the ALJ’s duty to develop the record is triggered.
See, e.g., Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
“Ultimately, the question is whether the administrative record has
been adequately developed under the circumstances to provide a
substantial basis for the decision.”

Yerk v. Astrue, No. 2:07-CV-

1601, 2009 WL 185991, at *8 (W.D. Pa. Jan. 26, 2009 (citing Reefer
v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)).
Here the ALJ explained the basis for his RFC determination
with specific citation to the record.

(R. 12-14.)

With this

claimed error, Plaintiff does not undermine the ALJ’s analysis but
conclusorily states that the lack of opinion evidence required ALJ
Cutter to obtain a consultative examiner opinion.
Doc. 11 at 3.)

(Doc. 9 at 11;

Plaintiff’s conclusion that such an opinion was

required is not supported by citation or argument.
21

(See id.)

Such

a requirement is not found in the applicable legal framework nor
did Plaintiff’s attorney suggest that a consultative exam, or any
additional evidence whatsoever, would be advisable in this case.
Rather, at the end of ALJ hearing, Plaintiff’s attorney verified
that there was nothing more and earlier in the hearing made no
mention of the need for a consultative examination when asked about
the state of the record relative to the ALJ determination.

(R. 25,

36.)
Because Plaintiff has not shown that the two assertions
advanced in support of this claimed error are consistent with the
record or relevant authority, the Court concludes Plaintiff has not
satisfied her burden of showing error on the basis alleged.
C.

Diabetes Evaluation
Plaintiff next alleges that substantial evidence does not

support the ALJ’s evaluation of her diabetes because he failed to
properly consider the impact of the impairment on Plaintiff’s
ability to work.

(Doc. 9 at 11-13.)

Defendant responds that

substantial evidence supports the ALJ’s evaluation of this
impairment.

(Doc. 10 at 18-20.)

The Court concludes Plaintiff has

not shown error on the basis alleged.
In support of her argument Plaintiff points to four
hospitalizations from August 29, 2015, to May 23, 2016, diabetic
neuropathy considerations, and her previous experience of her
employer’s tolerance for her need to snack and use the bathroom.

22

(Doc. 9 at 12-13.)

In her reply brief, Plaintiff adds that the ALJ

made a mistake of fact which she correlates with the assertion that
“type 1 diabetes by definition means that an individual is insulin
dependent and her diabetes cannot be controlled with diet and
exercise.”

(Doc. 11 at 3-4 (citing

https://www.mayoclinic.org/diseases-conditions/type-1
diabetes/symptoms-causes/syc-20353011?p=1).)
First, Plaintiff’s reference to diabetic neuropathy does not
undermine ALJ Cutter’s analysis of her diabetes.
12.)

(See Doc. 9 at

Importantly, she does not point to any record evidence of

neuropathy.

(See id.)

Further, although she notes the link

between diabetic neuropathy and kidney damage, she does not show
how the single November 18, 2016, diagnosis “acute renal
insufficiency” establishes anything more or greater limitations
than those assessed.

(Id.)

Regarding hospitalizations and job difficulties related to the
condition, a review of ALJ Cutter’s decision reveals that Plaintiff
has not shown error on these bases.

After referencing Plaintiff’s

hospitalization “due to uncontrolled sugar levels, which has caused
work absences and termination of her employment,”

(R. 13 (citing

Exs 16B, 4E, 11E)), ALJ Cutter’s discussion of Plaintiff’s diabetes
included the following:
The claimant’s medical records reveal a
history of type 1 diabetes mellitus with
hospitalizations for exacerbations, but her
treatment records suggest that her condition
23

can be controlled with appropriate diet and
medications (Exhibits 5F, 7F, 9F, 10F). The
evidence corroborates that she experiences
intermittent lightheadedness, nausea,
diarrhea, and vomiting with exacerbations of
diabetic ketoacidosis, but there is no
evidence of chronic hyperglycemia, end-organ
damage, heart failure cardiovascular disease,
peripheral vascular disease, stroke,
cognitive impairments, slow-healing bacterial
and fungal infections, gastroparesis and
ischemic bowel disease (intestinal necrosis),
chronic symptomatic hypo/hyperglycemia,
amputation, diabetic retinopathy, peripheral
neuropathy or other diabetic-related
complications (Exhibits 5F, 7F, 9F, 10F).
Although the claimant has required
hospitalization for exacerbations (i.e.
hypoglycemia and diabetic ketoacidosis), the
claimant’s treatment generally includes
routine medical examinations, oral
medication, daily insulin, weight loss and
diet (Exhibits 5F, 7F, 9F, 10F/2-3, 13, 22).
. . . Records do not show significantly high
or low blood sugar levels with treatment
compliance (Exhibits 2F, 5F). Notably, her
treatment records from Hamilton Health Center
in June 2016 reveal that she presented with
no new complaints (Exhibit 10F/3).
Specifically, she reported that she was not
feeling tired or poorly and that she had no
headaches or other significant symptomology
(Exhibit 10F/3). This evidence supports that
her symptoms can be managed with appropriate
medical treatment.
(R. 13.)

ALJ Cutter added that the record did not document

persistent symptoms of frequent urination and evidence was not
consistent with Plaintiff’s “allegations that she is essentially
unable to function due to blood sugar fluctuations.”

(R. 14.)

This review shows that ALJ Cutter discussed Plaintiff’s
hospitalizations and the job difficulties she experienced related

24

to her diabetes.

Moreover, Plaintiff does not address ALJ Cutter’s

determination that records did not show “significantly high or low
blood sugar levels with treatment compliance” and the “record
suggests that her condition can be controlled with appropriate diet
and medications.”

(R. 13.)

In her supporting brief, Plaintiff

does not discuss these findings at all.

(See Doc. 9 at 12-13.)

In

her reply brief Plaintiff infers that ALJ Cutter’s statement that
the records suggest her diabetes can be controlled with appropriate
diet and medications (R. 13) is an error of fact requiring reversal
because by definition diabetes type 1 requires insulin and cannot
be controlled with diet and exercise.

(Doc. 11 at 3-4.)

Nothing

in the ALJ’s assessment contradicts the definition of type 1
diabetes Plaintiff provides: he did not find that her diabetes was
controlled with diet and exercise but with “appropriate diet and
medications” and that her treatment included daily insulin.
(emphasis added).)

(R. 13

Thus, Plaintiff has not satisfied her burden of

showing how the ALJ erred in his consideration of her diabetes.
D. Step Four Evaluation
Plaintiff maintains the ALJ erred in his determination that
she could return to her past relevant work because he did not take
specific testimony about the physical and mental demands of her
past work as a fast food worker.

(Doc. 9 at 13.)

Defendant

responds that the ALJ made proper findings on this issue.
at 20.)

(Doc. 10

The Court concludes Plaintiff has not satisfied her burden

25

of showing error on the basis alleged
In her supporting and reply briefs, Plaintiff addresses the
step four determination regarding her position as actually
performed.

(Doc. 9 at 13-14; Doc. 11 at 4-5.)

However, ALJ Cutter

found that Plaintiff could perform her past relevant work as
“actually and generally performed.”

(R. 15.)

Therefore, even

assuming arguendo that Plaintiff points to error regarding her job
as specifically performed, she has not presented evidence of error
regarding the job as generally performed.

Therefore, the alleged

error would be harmless and not present cause for reversal or
remand.

The alleged error would also be harmless because ALJ

Cutter made an alternative step five determination that other jobs
existed in significant numbers in the national economy that
Plaintiff could perform.
E.

(R. 15.)

Symptom Evaluation
Plaintiff presents several bases for this claimed error,

criticizing ALJ Cutter’s decision regarding symptom evaluation as
follows: he erred in noting that Plaintiff’s condition could be
“controlled with diet and medication” and in considering what type
of diabetes can be controlled with diet and exercise; he did not
adequately consider Plaintiff’s hospitalizations; he incorrectly
relied on a lack of clinical findings; and he did not properly
consider activities of daily living.

(Doc. 9 at 15-17.)

Defendant

responds that the ALJ properly considered Plaintiff’s subjective

26

complaints.

(Doc. 10 at 23-26.)

The Court concludes Plaintiff has

not satisfied her burden of showing error on the bases alleged.
Regarding the ALJ’s determination that the records suggested
that Plaintiff’s diabetes could be controlled with appropriate diet
and medications, Plaintiff points to the Morales v. Apfel, 225 F.3d
310, 319 (3d Cir. 2000) in support of the proposition that having a
controlled condition does not mean that the claimant is not
disabled.

(Doc. 9 at 15.)

While this proposition may be true,

Plaintiff has not shown how her condition, when controlled, renders
her disabled.

(Id.)

Her series of conclusory statements do not

add up to a cohesive argument with citation to the record
demonstrating that substantial evidence does not support the ALJ’s
determination that Plaintiff’s diabetes can be controlled and, when
controlled, the condition does not render her disabled within the
meaning of the act.

Therefore, Plaintiff has not shown error

related to the ALJ’s statement.
Plaintiff’s assertion about hospitalizations is conclusory and
unavailing in that she presents absolutely no argument or evidence
as to how the ALJ “downplayed” her hospitalizations or the specific
significance of her hospitalizations in establishing that she was
disabled within the meaning of the Social Security Act.

(See Doc.

9 at 15.)
Plaintiff’s reiteration of the definition of type 1 diabetes
(id.) is unavailing for the reasons discussed in a previous section

27

of this Memorandum: it is conclusory and presents an inaccurate
inference.

See supra p.25.

Plaintiff links her assertion regarding the ALJ’s notation of
a lack of objective or clinical findings to discredit her
subjective reports to the principle that “a claimant’s testimony
cannot be disregarded simply because it is not supported by
objective medical evidence.”

(Doc. 9 at 16 (citing SSR 96-7p).)

Plaintiff’s reference to SSR 96-7p does not support the claimed
error because her statement of error is conclusory and inaccurate.
Social Security Ruling 96-7p provides the following guidance
regarding the evaluation of a claimant’s statements about his or
her symptoms:
In general, the extent to which an
individual's statements about symptoms can be
relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p.

A fair reading of ALJ Cutter’s decision shows that he

he did not rely solely on a lack of objective or clinical findings
to discredit Plaintiff but rather compared her subjective
complaints to clinical findings and other subjective reports she

28

had provided.

(R. 13-14.)

Although he noted that the record did

not document certain symptoms (R. 14), ALJ Cutter considered the
entire case record in determining Plaintiff’s subjective statements
regarding her symptoms were not completely credible.

(See R. 13-

14.)
Finally, Plaintiff’s claimed error regarding her activities of
daily living is unavailing in that she bases her assertion on the
principle that “limited activities, generally preformed in the
privacy of one’s own home, are not on [sic] any way inconsistent
with [her] assertion that she cannot perform work activities, 8
hours a day, 5 days a week.”

(Doc. 9 at 16.)

As noted by

Defendant, Plaintiff reported activities beyond what she did at
home and the record showed that she engaged in a wide variety of
activities, including various outings with friends.
at 25-26 (citing R. 184, 202-04).)

(See Doc. 10

In her reply brief, Plaintiff

generally reiterates her initial argument but does not refute that
she engaged in a wide variety of activities with friends.
at 6.)

(Doc. 11

Moreover, Plaintiff does not address the specific

correlation ALJ Cutter made between her ability to “perform a wide
range of activities of daily living” (R. 14 (providing examples))
and “allegations that she is essentially unable to function due to
blood sugar fluctuations” (id.).

Thus, Plaintiff has not satisfied

her burden of showing error on the basis alleged.

29

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: February 6, 2018

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