Dettinger v. Berryhill et al

Filing 12

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes 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 8/8/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KRISTY ELLEN DETTINGER,

:
:CIVIL ACTION NO. 3:17-CV-2224
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

protectively filed her application on June 12, 2014, alleging
disability beginning on November 18, 2013.

(R. 10.)

After

Plaintiff appealed the initial August 15, 2014, denial of the
claim, a hearing was held by Administrative Law Judge (“ALJ”) Randy
Riley on March 15, 2016.

(Id.)

ALJ Riley issued his Decision on

April 14, 2016, concluding that Plaintiff had not been under a
disability as defined in the Social Security Act (“Act”) from
November 18, 2013, through December 31, 2014, the date last
insured.

(R. 16.)

Plaintiff requested review of the ALJ’s

decision which the Appeals Council denied on October 20, 2017.
1-6.)

(R.

In doing so, the ALJ’s decision became the decision of the

Acting Commissioner.

(R. 1.)

Plaintiff filed this action on December 5, 2017.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ’s residual functional capacity (“RFC”) assessment is facially
defective; 2) the RFC assessment is unreviewable because the ALJ
did not identify any specific longitudinal objective signs or
findings that are inconsistent with opinions; and 3) the RFC
assessment is not supported by substantial evidence because the ALJ
did not reject or explain his failure to reject relevant portions
of an opinion to which he assigned great weight.

(Doc. 9 at 7.)

For the reasons discussed below, the Court concludes Plaintiff’s
appeal is properly denied.
I. Background
Plaintiff was born on November 30, 1975, and was thirty-nine
years old on the date last insured.

(R. 15.)

Plaintiff has an

associates degree and was a certified nursing assistant.
150.)

(R. 42,

The July 8, 2014, Disability Report indicates Plaintiff

alleged that her ability to work was limited by complex seizures,
cervical radiculopathy, fatigue, herniated disc, insomnia,
migraines with aura, muscle weakness, myalgia, myositis, and
obesity.
A.

(R. 148.)

Medical Evidence
The Court will provide a brief summary of medical evidence to

provide context for discussion.

Specific evidence relevant to

claimed errors will be considered in the context of the arguments

2

raised.
Plaintiff reported she was working as an in-home care provider
when she suffered a work injury on July 22, 2013.

(R. 210.)

She

said she was taking care of a patient who was in bed and he grabbed
her around the neck while she was pivoting him which immediately
caused her to feel a shooting pain in her neck and left arm.
A July 31, 2013, MRI showed a disc bulge at C5-C6.

(Id.)

(R. 212.)

Plaintiff had an interlaminar cervical epidural steroid injection
at C7-T1 on October 29, 2013.

(R. 206.)

Plaintiff reported improvement with injections at Wellspan
Pain Management in October 2013 but also reported daily headaches
and increased numbness and weakness.

(R. 365.)

2013, Plaintiff remained on restricted duty.

As of November 4,

(R. 210.)

She

reported to Amit R. Patel, M.D., of OSS Health that she continued
to have aching pain and muscle spasms on either side of her neck
which was exacerbated by activity and alleviated with heat, ice,
and medication.

(Id.)

Physical exam confirmed pain on movement of

the neck and tenderness to palpation over the C7 spinous process.
(R. 211.)
Plaintiff continued to experience headaches, tingling and
numbness of the left arm, and muscle pain/cramping in the neck
through 2014.

(R. 277-78, 387, 421.)

She was treated by Deborah

Bernal, M.D., of Wellspan Physiatry from March 2013 through
September 2013 at which time Dr. Bernal noted that follow-up with

3

Wellspan Physiatry was not needed and Plaintiff could continue
medication management with her pain specialist.

(R. 260-81, 412-

16.) In November 2014, Asit Upadhyay, D.O., her treating pain
management physician beginning in August 2014, diagnosed cervical
disc disorder.

(R. 421.)

In January 2015, the month after the date last insured,
Plaintiff reported to Anthony C. May, M.D., of WellSpan Neurology
that her migraines were overall better and the frequency was
reduced from more than one a week to two to three a month.
449.)

(R.

She also reported that she continued to have daily

occipital-cervical pain related to her neck pain.

(Id.)

She made

similar reports in September 2015, noting that she still had
intermittent paresthesias in her left arm and hand, and at times
her left hand felt weak and hard to control.

(R. 452.)

Plaintiff made similar reports in early 2016 and physical exam
showed generalized neck tenderness, decreased neck rotation, and
tightness and decreased flex of the paracervical musculature.
588-89.)

(R.

Diagnoses included chronic neck pain and cervical

radiculopathy.

(R. 589.)

B. Opinion Evidence
1. Mental Impairment Opinion
State agency consultant James Vizza, Psy.D., found that
Plaintiff did not have a medically determinable mental impairment.
(R. 66.)

He noted that the record contained no diagnosed mental

4

impairment.
2.
a.

(Id.)

Physical Impairment Opinions
Functional Capacity Evaluation
Deborah Bernal, M.D., of Wellspain Physiatry treated Plaintiff

for neck pain beginning on March 5, 2014, and referred Plaintiff to
Wellspan Rehabilitation where Plaintiff had a Functional Capacity
Evaluation conducted by Brandon Burkett, PT, DPT, on June 4, 2014.
(R. 214-54.)

Plaintiff was evaluated for assessment of her

physical and functional capabilities with the referring diagnosis
of left arm pain and cervical radiculopathy.

(R. 214.)

The

evaluation, which lasted four hours and thirty minutes, contains
extensive test results and includes the following findings:
Plaintiff could occasionally lift ten pounds waist to shoulder,
floor to shoulder, and shoulder to overhead; she could occasionally
lift twenty pounds floor to waist; she could occasionally carry
twenty pounds; she could frequently sit, stand, walk, climb stairs,
bend, stoop, reach forward, and finger; she could occasionally
squat, crouch, kneel, reach overhead, handle, and use hand/foot
controls.

(R. 215-16.)

The following Final Report Assessment was provided:
The client presents with primary
limitations in pain throughout her cervical
spine, specifically in the C7-T1
cervicothoracic junction. The client also
presents with decreased ROM, strength and
endurance primarily due to pain. Due to
these deficits, the client has severe
difficulty with lifting and patient handling
5

activities that are required of her job as an
in-home aide. . . . The client’s main
difficulties are with material handling in
order to meet her job demands. The client
would benefit from a work hardening program
at this time to address these deficits and
return her to work full-time, full duty,
without restriction.
(R. 253.)

Plaintiff’s prognosis was noted to be fair based on her

age, motivation, length of time since the injury, and length of
time off work.

(Id.)

In the Recommendations section of the

Evaluation, Mr. Burkett stated that Plaintiff tested at the
sedentary category and she could work in a sedentary capacity if
her employer was able to provide her with work that would fall
within her physical abilities.

(R. 214.)

Mr. Burkett further

reported that Plaintiff “provided full physical effort, a
consistent and valid effort, a partially reliable report of pain
and a reliable report of physical functioning.”
b.

(Id.)

Treating Physiatrist
Deborah Bernal, M.D., of Wellspan Physiatry saw Plaintiff in

March, April, May, June, and September 2014, and, as noted above,
referred Plaintiff for the Functional Capacity Evaluation.
256-81, 412-16.)

(R.

On June 19, 2014, Dr. Bernal concluded Plaintiff

could return to work on sedentary duty as noted in the Functional
Capacity Evaluation.
c.

(R. 260.)

Pain Management Specialist
Asit Upadhyay, D.O., completed a Cervical Spine Medical Source

Statement on November 4, 2014.

(R. 421-25.)
6

He diagnosed cervical

disc disorder and reported that Plaintiff’s prognosis was guarded.
(R. 421.)

Dr. Upadhyay listed right arm pain with numbness and

tingling as chronic and listed the following associated symptoms:
tenderness, crepitus, muscle spasm, and reduced grip strength.
(Id.)

He found Plaintiff had motion limitations including 20%

extension and left lateral bending; 25% right lateral bending; 40%
flexion; and 45% left rotation and right rotation.

(Id.)

He noted

Plaintiff did not have severe headache pain associated with her
cervical spine impairment and emotional factors did not contribute
to her symptoms or limitations.

(R. 422.)

Dr. Upadhyay also noted

that medications caused nausea and drowsiness.

(Id.)

He opined

that Plaintiff’s impairments lasted or were expected to last for at
least twelve months.

(Id.)

He assessed Plaintiff could walk four

city blocks without rest or severe pain; she could sit for fifteen
minutes at a time before needing to get up; she could stand for
twenty minutes before needing to sit or walk; in an eight-hour day
she could sit for about four hours total and stand/walk for about
two hours total.

(R. 423.)

Dr. Upadhyay indicated Plaintiff

needed a job where she could shift positions at will, she would
need to walk around every hour for five minutes, and she would need
unscheduled breaks on a daily basis for ten to thirty minutes.
(Id.)

He opined that Plaintiff could never lift and carry fifty

pounds, rarely twenty pounds, and occasionally less than that; she
could occasionally look down, turn her head to the right or left,

7

look up, or hold her head in a static position; she could
frequently twist; she could occasionally stoop, crouch/squat, and
climb stairs; and she could rarely climb ladders.

(R. 424.)

He

further opined Plaintiff could reach in front of her body 50% of
the time and reach overhead 10% of the time; she would be off task
20% of the time; she was capable of moderate work stress; she would
have good days and bad days which would result in her missing more
than four days per month, and her impairments were reasonably
consistent with the symptoms and functional limitations identified.
(R. 424-25.)
C.

Hearing Testimony
Plaintiff testified that she was able to drive but the

rotation of her neck and movement caused more pain if she did so
for an extended period.

(R. 44.)

She said she was able to climb

stairs, walking was not much of a problem.

She also said she was

able to stand in one position for a period of time on her good
days.

(R. 44.)

When asked by the ALJ if she had any problem

sitting, Plaintiff did not report a problem if she was allowed to
move, move her neck around, and change positions.

(R. 45.)

Upon questioning by her attorney, Plaintiff indicated she
would rate her pain at 6/10 on average.

(R. 48.)

When asked about

specific things that aggravated it, she identified pulling the
laundry out of the washing machine if she did several loads.
Plaintiff added “constant . . . reaching in and pulling out of

(Id.)

8

things will cause me to have a bad day the next day, or more pain
later at night. . . . [I]t seems like almost anything that I do
that requires extra movement of my arm . . . or rotation of my neck
. . . will cause . . . more pain.”

(R. 48-49.)

Plaintiff

described limitation in the movement of her neck and related
difficulties including a problem holding her head in a fixed
position.

(R. 50-51.)

ALJ Riley asked Vocational Exert Paul Anderson to consider a
hypothetical individual with Plaintiff’s age, education, and work
experience who was able to do sedentary work, never could
push/pull; could occasionally do stairs, balance, stoop, kneel,
crouch, and crawl; was limited to frequent rotation, flexion, and
extension of the neck; could never reach overhead; had to avoid
exposure to extreme cold, excessive noise, bright lights, and
excessive vibration; and work was limited to simple, routine,
repetitive tasks.

(R. 59-60.)

The vocational expert (“VE”)

testified that the individual would not be able to perform
Plaintiff’s past relevant work but there were other jobs she could
perform including the exemplary jobs of order clerk for food and
beverage, surveillance system monitor, and nut sorter.

(R. 60.)

In his next hypothetical, ALJ Riley added the limitation to
only occasional rotation, flexion or extension of the neck.

(Id.)

The VE responded that the jobs he had indicated would remain.
(Id.)

When ALJ Riley added that the individual would not be able

9

to engage in sustained work activity on a regular, continuing basis
for eight hours a day, five days a week, for a 40-hour week, the VE
said no jobs would be available.

(R. 60-61.)

Plaintiff’s attorney then asked if an individual who was
limited to sitting four hours a day and standing and walking two
hours a day could perform the identified jobs.
responded that the individual could not.
D.

(R. 61.)

The VE

(Id.)

ALJ Decision
In his April 14, 2016, Decision, ALJ Riley determined

Plaintiff had the following severe impairments through the date
last insured: chronic kidney disease, degenerative disc disease of
the neck, migraines, obesity, and a seizure disorder.

(R. 12.)

He

found Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed
impairment.

(R. 13.)

ALJ Riley then assessed that Plaintiff had the RFC to perform
sedentary work
except she can never push and pull, use
ladders, or reach overhead. She is limited
to occasional stairs, balancing, stooping,
kneeling, crouching and crawling. She is
limited to occasional rotation, flexion, and
extension of her neck and she should avoid
exposure to extreme cold, as well as avoid
exposure to excessive noise, bright lights,
irritants, and hazards. She is limited to no
commercial driving, and is limited to work
that consists of simple routine repetitive
tasks. Go to sleep
(R. 13.)

With this RFC, the ALJ determined that Plaintiff was not
10

able to perform her past relevant work.

(R. 15.)

He then found

she was able to perform other jobs that existed in significant
numbers in the national economy and therefore concluded Plaintiff
had not been under a disability from November 18, 2013, through
December 31, 2014, the date last insured.

(R. 15-16.)

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

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).
11

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
five of the sequential evaluation process when the ALJ found that
jobs existed in significant numbers in the national economy which
Plaintiff could perform.

(R. 15-16.)

III. Standard of Review
This Court’s review of the Commissioner’s final decision is

12

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
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
13

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.

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 . . .”).
14

“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 Acting Commissioner’s
determination should be remanded for the following reasons: 1) the
ALJ’s residual functional capacity (“RFC”) assessment is facially
defective; 2) the RFC assessment is unreviewable because the ALJ
did not identify any specific longitudinal objective signs or
findings that are inconsistent with opinions; and 3) the RFC
assessment is not supported by substantial evidence because the ALJ
did not reject or explain his failure to reject relevant portions
of an opinion to which he assigned great weight.
A.

(Doc. 9 at 7.)

Facially Defective RFC
Plaintiff first asserts the RFC is facially defective in that

it ends in the incomplete sentence “‘[g]o to sleep’” and is
therefore unreviewable.

(Doc. 9 at 9 (quoting R. 13).)
15

Defendant

responds that the RFC was complete and the quoted phrase “go to
sleep” was “obviously a harmless typographical or scrivener’s error
without any bearing on or relation to the RFC or underlying facts.”
(Doc. 10 at 5.)

In her reply brief, Plaintiff rejects this

assessment and argues that the error is not harmless because
“[t]his is an incomplete sentence within the residual functional
capacity assessment which - if completed - could change the outcome
of the case.”

(Doc. 11 at 2.)

The Court concludes Plaintiff has

not satisfied her burden of showing that the claimed error is cause
for remand.
“An error is ‘harmless’ when, despite the technical
correctness of an appellant’s legal contention, there is also ‘no
set of facts’ upon which the appellant could recover.”

Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (quoting Renchenski v.
Williams, 622 F.3d 315, 341 (3d Cir 2010)).

In other words, “a

remand is not required . . . [if] it would not affect the outcome
of the case.”

Rutherford,

399 F.3d at 553.

“The burden of

showing that an error is harmful normally falls upon the party
attacking the agency’s determination.”

Shinseki v. Sanders, 556

U.S. 396, 409 (1969); Woodson v. Comm’r of Social Security, 661 F.
App’x 762, 766 (3d Cir. 2016) (citing Shinseki, 556 U.S. at 409) (a
plaintiff must point to specific evidence that demonstrates his
claimed error caused harm); Holloman v. Comm’r of Social Security,
639 F. App’x 810, 814 (3d Cir. 2016) (citing Shineski, 556 U.S. At
16

409) (a plaintiff must show how the claimed error made a difference
beyond a mere assertion that it did so).
The Court concludes Plaintiff has not shown that the phrase
“[g]o to sleep” found at the end of the RFC assessment precludes
meaningful review (Doc. 9 at 9; Doc. 11 at 2).

To satisfy her

burden of showing harmful error, Plaintiff must do more than assert
that, if completed, the phrase could change the outcome of the
case.

Holloman, 639 F. App’x at 814.

While Plaintiff maintains

the phrase cannot be a scrivener’s error (Doc. 11 at 2), the
conclusory assertion does not show how it has “any bearing on or
relation to the RFC or underlying facts” (Doc. 10 at 5).

Without

such a relationship, the Court cannot conclude that Plaintiff has
satisfied her burden of showing harmful error and cannot conclude
that meaningful review is precluded.

Therefore, the claimed error

is not cause for remand.
B.

Opinion Review
Plaintiff maintains the ALJ improperly assigned little weight

to Dr. Upadhyay’s opinion and improperly found the Functional
Capacity Evaluation better supported.

(Doc. 9 at 11.)

Defendant

responds that substantial evidence supports the ALJ’s decision to
assign limited weight to the opinion.

(Doc. 10 at 7.)

The Court

concludes Plaintiff has not shown the claimed error is cause for
remand.
Under applicable regulations and the law of the Third Circuit,

17

a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.2

See, e.g.,

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

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. § 404.1527(c)(2), and is widely
accepted in the Third Circuit.

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

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

2

Though not applicable here, the regulations have eliminated
the treating source rule for claims filed on or after March 27,
2017, and in doing so have recognized that courts reviewing claims
have “focused more on whether we sufficiently articulated the
weight we gave treating source opinions, rather than on whether
substantial evidence supports our decision.” 82 FR 5844-01, 2017
WL 168819, *at 5853 (Jan. 18, 2017). The agency further stated
that in its experience in adjudicating claims using the treating
source rule since 1991, the two most important factors for
determining persuasiveness are consistency and supportability,
which is the foundation of the new regulations. Id. Therefore,
the new regulations contain no automatic hierarchy for treating
sources, examining sources, or reviewing sources, but instead,
focus on the analysis of these factors. Id. 20 C.F.R. § 404.1520c
addresses the evaluation of opinion evidence for cases filed on or
after March 27, 2017.
18

weight.”

20 C.F.R. § 404.1527(c)(2).3

“A cardinal principle

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

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

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

3

In choosing to reject

20 C.F.R. § 404.1527(c)(2) states in relevant part:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
19

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

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
Medical opinions entitled to controlling weight are those from
“acceptable medical sources” which, by definition, include licensed
physicians and psychologists, and licensed advanced practice
registered nurses and licensed physician assistants for impairments
within his or her licensed scope.
404.1527(a).

20 C.F.R. §1502(a); 20 C.F.R. §

Opinions from “medical sources” who are not

“acceptable medical sources” are also considered.
404.1527(f).

The definition of

20 C.F.R. §

“medical source” includes an

individual who is licensed as a healthcare worker by a State and
working within the scope of practice permitted.
404.1502(d).

20 C.F.R. §

An opinion from such an individual is considered

using the factors applicable to acceptable medical sources (20
C.F.R. § 404.1527(c)(1) through (c)(6)) and, in some cases, the
opinion may outweigh the medical opinion of an acceptable medical
source.

20 C.R.R. § 404.1527(f).

By way of example, the

regulation provides that
it may be appropriate to give more weight to
the opinion of a medical source who is not an
20

acceptable medical source if he or she has
seen the individual more often than the
treating source, has provided better
supporting evidence and a better explanation
for the opinion, and the opinion is more
consistent with the evidence as a whole.
Id.
ALJ Riley considered physical impairment opinion evidence and
assigned the Functional Capacity Evaluation (“FCE”) great weight on
the basis that the report was very thorough and well supported.
(R. 15.)

He also assigned great weight to Dr. Bernal’s opinion

that Plaintiff should remain at sedentary duty because he found her
opinion consistent with the record and the FCE.

(Id.)

He assigned

limited weight to Dr. Upadhyay’s opinion, finding a number of the
limitations more extensive than those identified in the FCE and he
considered the FCE to be better supported.

(Id.)

ALJ Riley added

that the FCE “took into account observed testing of the claimant
over a period of time.

Although [Dr. Upadhyay’s Cervical Spine

Medical Source Statement] reflects ongoing pain, it does not
explain [why] the claimant would need to miss so many days per
month, or why she is as limited as the physician noted.”

(Id.)

Pursuant to the relevant authority set out above, ALJ Riley
was entitled to attribute greater weight to the FCE and he
explained his reasons for doing so-–reasons acceptable under the
applicable regulation.

See 20 C.F.R. § 404.1527(c)(1)-(6), (f).

While the ALJ does not identify the limitations which are more
extensive in Dr. Upadhyay’s opinion than in the FCE, the Court
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rejects Plaintiff’s assertion that the rationale should be
discounted as conclusory (see Doc. 9 at 11).

The ALJ cites

evidence which the Court finds specific enough to support his
conclusion that Dr. Upadhyay found Plaintiff more limited than the
FCE and he adequately explains why the FCE is entitled to greater
weight.

(See R. 15.)

Importantly, the FCE was conducted on

reference of Dr. Bernal, Plaintiff’s treating physiatrist, who saw
Plaintiff five times, Dr. Bernal endorsed the FCE findings and
opined that Plaintiff was capable of sedentary work, and ALJ Riley
assigned great weight to Dr. Bernal’s opinion.

(R. 15, 214, 260.)

These associations undermine Plaintiff’s argument that Dr.
Upadhyay’s longitudinal treatment trumps the one-day FCE.
Doc. 9 at 14.)

(See

Plaintiff’s argument regarding time spent with the

provider is also undermined by the fact that the four-and-one-half
hour FCE included specific intensive testing (R. 215-54) where no
such testing is referenced in Dr. Upadhyay’s opinion and his office
notes indicate that only his initial August 19, 2014, physical exam
addressed relevant neck and cervical spine issues.

(See R. 429-30,

433, 436, 439, 442.)
Plaintiff provides no adequate support for her argument that
the ALJ’s failure to analyze all § 404.1527 factors precludes a
finding that his opinion assessment is based on substantial
evidence.

(See Doc. 9 at 13.)

Nothing in the regulations requires

precise language or consideration of every factor identified.

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Rather, courts have concluded that a formulaic consideration of
evidence is not required–-an ALJ is not obligated to consider every
factor outlined in the rulings and regulations but must offer
adequate reasons for discounting an opinion.

See, e.g., Sanborn v.

Commissioner of Social Security, 613 F. App’x 171, 176 (3d Cir.
2015) (not precedential).

Further, where the ALJ’s decision is

explained in sufficient detail to allow meaningful judicial review
and the decision is supported by substantial evidence, a claimed
error may be deemed harmless.

See, e.g., Albury v. Comm’r of Soc.

Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not precedential)
(citing Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000)
(“[O]ur primary concern has always been the ability to conduct
meaningful judicial review.”).

Here the Court concludes ALJ Riley

explained his opinion assessments in sufficient detail to allow
meaningful review and further concludes Plaintiff has not shown
that the claimed error is cause for remand.
C.

Inadequate FCE Consideration
Plaintiff contends the ALJ failed to include limitations such

as occasional handling, frequent forward reaching, and frequent
fingering which were established in the Functional Capacity
Evaluation but not included in the RFC or questions to the
vocational expert.

(Doc. 9 at 15.)

Defendant responds that this

purported failure is, at most, harmless error because at least one
of the exemplary jobs identified by the VE does not require any
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handling, reaching, or fingering according to the Dictionary of
Occupational Titles (“DOT”) definition.

(Doc. 10 at 18-19 (citing

DOT 379.367-010, 1991 WL 673244 (G.P.O.)).)

In her reply brief,

Plaintiff asserts Defendant’s argument must fail as it is an
impermissible post hoc rationalization.

(Doc. 11 at 6.)

The Court

concludes remand is not required because Plaintiff has not shown
that the alleged error caused harm.
As set out above, an error is harmless when there is no set of
facts upon which the plaintiff could recover, i.e., if remand would
not affect the outcome of the case.
Rutherford, 399 F.3d at 553.

Brown, 649 F.3d at 195;

Plaintiff bears the burden of showing

that an error is harmful and must do so with specificity.
Shinseki, 556 U.S. at 409 (1969); Woodson, 661 F. App’x at 766;
Holloman, 639 F. App’x at 814.
The Court rejects Plaintiff’s position which is essentially an
argument that a per se rule of prejudice requires remand here (Doc.
9 at 17; Doc. 11 at 6-7).

Such a rule is not consistent with

Shinseki’s explanation of proper harmless error analysis and the
application of the Shinseki holding to lower court review of a
Social Security applicant’s appeal.

Shinseki, 556 U.S. at 407-10;

Molina v. Astrue, 674 F.3d 1104, 1118-21 (9th Cir. 2012).
Harmlessness should be determined “through the case-specific
application of judgment, based upon examination of the record,” and
not “through the use of mandatory presumptions and rigid rules.”
24

Shinseki, 556 U.S. at 407; Molina, 674 F.3d at 1118.

A more rigid

approach would require the reviewing court to reverse in many cases
where it is “obvious from the record . . . that the error made no
difference.”

Id.

Here the record shows ALJ Riley did not include credibly
established limitations, see Rutherford, 399 F.3d at 554, in his
RFC or in a hypothetical to the VE.

While this conclusion supports

a finding of error, the exclusion of the FCE’s findings that
Plaintiff had limitations in her abilities to handle, reach
forward, and finger is not cause for remand if “it is obvious from
the record that the error made no difference,” 556 U.S. at 407,
i.e., if remand would not affect the outcome of the case, 399 F.3d
at 553.
The Court has no basis to conclude that remand would affect
the outcome of the case because at least one of the exemplary
jobs–-that of surveillance monitor--does not require prohibited
handling, reaching, or fingering or otherwise call for abilities
beyond Plaintiff’s capability.

DOT 379.367-010, 1991 WL 673244.

Plaintiff does not refute Defendant’s argument on this point (see
Doc. 10 at 18-19) or otherwise dispute her ability to perform the
position of surveillance monitor.

Nor does she dispute that the

identification of one position which she is able to perform is
sufficient to find that the ALJ’s step five determination is
supported by substantial evidence pursuant to 20 C.F.R. §

25

416.966(b) (“Work exists in the national economy when there is a
significant number of jobs (in one or more occupations) having
requirements which you are able to meet with your physical or
mental abilities and vocational qualifications.”)

Thus, in the

circumstances presented, the Court cannot conclude that remand
might lead to a different result–-if the excluded limitations were
added to the hypothetical provided to the VE, the surveillance
monitor position would remain available and Plaintiff would be
found not disabled because a job existed in significant numbers in
the national economy which she could perform.

Based on this

determination, remand is not required for further consideration of
ALJ Riley’s RFC assessment and step five conclusion.
V. Conclusion
For the reasons discussed above, the Court concludes
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: August 8, 2018

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