Peterson v. Berryhill

Filing 12

MEMORANDUM (Order to follow as separate docket entry)Because Plaintiff has failed to show that the claimed error is cause for reversal, his appeal of the Acting Commissioners denial of benefits (Doc. 1) is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 10/9/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS CARL PETERSON,

:
:CIVIL ACTION NO. 3:18-CV-519
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 (“Act”).

(Doc. 1.)

Plaintiff protectively filed his application on June 1, 2015,
alleging disability beginning on April 28, 2015.

(R. 15.)

After

Plaintiff appealed the initial June 20, 2015, denial of the claim,
a hearing was held by Administrative Law Judge (“ALJ”) Mike Oleyar
on March 21, 2017.

(Id.)

ALJ Oleyar issued his Decision on July

21, 2017, concluding Plaintiff had not been under a disability as
defined in the Social Security Act (“Act”) from April 28, 2015,
through the date of the decision.

(R. 25.)

Plaintiff requested

review of the ALJ’s decision which the Appeals Council denied on
January 17, 2018.

(R. 1-6.)

In doing so, the ALJ’s decision

became the decision of the Acting Commissioner.

(R. 1.)

Plaintiff filed this action on March 5, 2018.

(Doc. 1.)

asserts in his supporting brief that the Acting Commissioner’s

He

determination should be reversed or remanded because the ALJ failed
to consider fibromyalgia a severe impairment at step two.
at 3.)

(Doc. 10

For the reasons discussed below, the Court concludes

Plaintiff’s appeal is properly denied.
I. Background
Plaintiff was born on May 20, 1959, and was fifty-five years
old on the alleged disability onset date.

(R. 24.)

Plaintiff has

a high school education and has past relevant work as a mechanic.
(Id.)

In the July 30, 2015, Disability Report, Plaintiff alleged

his ability to work was limited by high blood pressure, high
cholesterol, migraines, diverticulitis, and colon removal.

(R.

137.)
A.

MEDICAL EVIDENCE
Because Plaintiff’s appeal raises the issue of the ALJ’s

findings regarding fibromyalgia (Doc. 10 at 3), the Court will
focus on medical evidence concerning the condition and the ALJ’s
consideration of it.
On January 10, 2017, Plaintiff saw primary care provider
Christine M. Sheridan, D.O., with complaints of “total body pain
for 15 years.”

(R. 263.)

Plaintiff’s physical exam showed no

problems and Dr. Sheridan diagnosed chronic pain syndrome.
268.)

(R.

Dr. Sheridan wondered if Plaintiff’s symptoms could be due

to his cancer history and considered whether additional work up
should be done.

(Id.)

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Plaintiff returned to see Dr. Sheridan on January 23, 2017,
for follow up after an emergency room visit to Harrisburg Hospital
on January 13, 2017, where he had gone for headaches which had been
getting worse.

(R. 247.)

Physical exam showed that his cervical

spine was diffusely tender bilaterally but he had normal cervical
range of motion.

(R. 251.)

Dr. Sheridan diagnosed chronic

intractable headache and planned to get a brain MRI.

(Id.)

At a March 9, 2017, visit to the Milton S. Hershey Medical
Center where Dr. Sheridan had referred Plaintiff for evaluation of
his neck pain, Plaintiff complained of neck pain that went down to
both shoulders but did not radiate down his arms.

(R. 307.)

Plaintiff reported that he had the pain for “many years” and he had
not tried physical therapy, TENS unit, or complementary medicine.
(Id.)

He said he had started Gabapentin which did not help him.

(Id.)

Physical exam showed that Plaintiff was very tender to

palpation with multiple trigger points along bilateral cervical
paraspinals, suboccipital muscles, trapezius, rhomboids, and
periscapular region.

(R. 308.)

Yakov Vorobeychik, M.D., and Sheng

Liang, D.O., diagnosed myofacsial pain syndrome of the neck for
which a TENS unit and continued use of Tylenol were directed.
(Id.)

Trigger point injections were also planned.

(Id.)

Plaintiff was again seen at the Milton S. Hershey Medical
Center on March 27, 2017.

(R. 378.)

Vitaly Gordon, M.D., recorded

the following assessment: “Mr. Thomas Peterson is a 57-year-old

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male with chronic pain that is diffuse and very hard for him to
explain with a wide range of symptoms that seem to alternate and
are not consistent with any pathology.”

(Id.)

Dr. Gordin noted

the planned trigger point injections would be cancelled because
Plaintiff would likely not benefit from them since he had pain
throughout his body.

(Id.)

He also noted Plaintiff was advised

that no treatments could be offered at that time but he should
return if his condition deteriorated.

(Id.)

On referral of Dr. Sheridan, Plaintiff saw rheumatologist
Joseph L. Enama, M.D., on April 7, 2017, for reported “chronic
pain, muscle and joints with fatigue for years.”

(R. 343.)

Plaintiff complained of pain “all over” which he had for several
years but he felt the pain was getting worse.

(Id.)

Dr. Enama

noted that Plaintiff reported his pain to be at the 10/10 level,
but “despite claiming to have 10/10 pain, [he] is sitting quite
comfortably . . . in no acute distress.”

(R. 344.)

Musculoskeletal examination showed 12 of 18 myofascial tender
points were positive to direct palpation and stiffness in his hips
on active and passive maneuvering.

(Id.)

Dr. Enama found that

Plaintiff had “a clear fibromyalgia diagnosis on the basis of his
positive soft tissue tender point examintion. . . . I do believe
that the majority of the pain he is experiencing is related to a
fibromyalgia diagnosis as well as perhaps some degree of
osteoarthritis in different areas as well.”

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(Id.)

Adding that his

practice did not follow fibromyalgia on a longitudinal basis, Dr.
Enama recommended adjusting Plaintiff’s medication regimen and
consideration of physical and/or water therapy.1
B.

(R. 345.)

ALJ DECISION
In his July 21, 2017, Decision, ALJ Oleyar found Plaintiff had

the following severe impairments: hypertension; headaches; history
of tongue cancer status-post lymph node resection and radiation;
history of diverticulitis status-post resection and colectomy; and
left upper extremity paresthesia.

(R. 17.)

The ALJ also discussed

allegations of memory problems which he concluded did not
constitute any medically determinable impairment.

(R. 18.)

ALJ Oleyar concluded Plaintiff had the residual functional
capacity (“RFC”) to perform medium work
except he is limited to lifting and carrying
50 lbs. occasionally and 25 lbs. frequently;
standing or walking 6 hours in an 8-hour work
day; sitting 6 hours in an 8-hour workday;
frequently balancing, stopping [sic],
kneeling, crouching, crawling, and climbing
of ramps and stairs; occasionally climbing
ladders, ropes, or scaffolds; and frequently
reaching, handling, fingering, and feeling
with the bilateral upper extremities.
(R. 19.)
Regarding fibromyalgia, ALJ Oleyar stated that Plaintiff was
seen “by a rheumatologist in April of 2017, who indicated based off
of one examination that the claimant’s pain may be caused by

1

The record contains no indication that Plaintiff followed
up as suggested.
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fibromyalgia, however, there is no indiction in the record that the
claimant has received any further work up or treatment to
substantiate such a diagnosis.”

(R. 22 (citing Exhibit 7F [R. 342-

52]).)
ALJ Oleyar concluded Plaintiff could not perform his past
relevant work but jobs existed in significant numbers in the
national economy that Plaintiff could perform.

(R. 24.)

Therefore, he determined that Plaintiff had not been under a
disability, as defined in the Social Security Act, from April 28,
2015, through the date of the decision.

(R. 25.)

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

It is necessary for the

2

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
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).
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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.
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

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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. 24.)

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

42 U.S.C. § 405(g); Hartranft

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

Substantial evidence

It means such relevant evidence

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

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

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

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–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
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substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

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

Cir. 2000) (citations omitted).

If he has not done so and has not

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

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

In Cotter, the Circuit Court clarified that the ALJ must

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

However, the ALJ need not undertake an

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
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court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

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

Cir. 1983) (internal quotation omitted).

Where a claimed error

would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).

Finally,

an ALJ’s decision can only be reviewed by a court based on the
evidence that was before the ALJ at the time he or she made his or
her decision.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion

As set out above, Plaintiff asserts the Acting Commissioner’s
determination should be reversed or remanded because the ALJ did
not properly consider fibromyalgia at step two of the evaluation
process.

(Doc. 10 at 3.)

Defendant responds that the ALJ properly

evaluated Plaintiff’s fibromyalgia, the step-two error fails
because the ALJ went beyond step two in the sequential evaluation
process, and Plaintiff has not shown how the outcome of the case
would be different had his fibromyalgia been found severe.
10

(Doc.

11 at 16-21.)

The Court concludes Plaintiff has not satisfied his

burden of showing that reversal or remand is required based on the
error alleged.
ALJ Oleyar acknowledged that Plaintiff alleged he experienced
symptoms including fatigue, widespread muscle and joint pain, and
numbness and tingling in his hands.

(R. 19.)

The ALJ credited

some of these symptoms and provided for related limitations in his
RFC.

(See R. 19-24.)

The ALJ also acknowledged Plaintiff’s April

2017 fibromyalgia diagnosis.

(R. 22.)

However, he noted there was

no indication in the record that Plaintiff had received further
workup or treatment to substantiate the diagnosis.

(R. 22.)

Plaintiff does not directly refute the ALJ’s findings
regarding fibromyalgia follow up but says they are “a
misrepresentation of the rheumatologist’s exam and the ALJ is
imposing his own lay opinion over that of a medical specialist.”
(Doc. 10 at 4.)
In her responding brief, Defendant cites Salles v. Comm’r of
Social Security, 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (not
precedential), for the proposition that any step two error would be
harmless because the ALJ went beyond step two.

(Doc. 11 at 21.)

Defendant cites Shineski v. Sanders, 556 U.S. 396 (2009), in
support of her argument that Plaintiff’s claimed step-two error
fails because he has not shown how the outcome of the case would be
different had his fibromyalgia been found severe despite his
affirmative burden to do so.

(Doc. 11 at 21.)
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Plaintiff did not file a reply brief and, therefore, did not
refute Defendant’s arguments that the fact that the ALJ went beyond
step two rendered the claimed error harmless and Plaintiff did not
show how the outcome of the case would have been different if
fibromyalgia had been deemed severe.
Plaintiff identified a single office-visit diagnosis with no
corroboration or follow-up from the primary care doctor or from a
physician in the field of neurology which Dr. Enama identified as
the relevant field of specialization for fibromyalgia (“a
neurologically based condition” (R. 344)).

(Doc. 10 at 3-7.)

Plaintiff must show not only that he has been diagnosed with a
condition but, to demonstrate harm, he must show that it “caused
functional limitations that precluded him from engaging in any
substantial gainful activity.”

Walker v. Barnhart, 172 F. App’x

423, 426 (3d Cir. 2006) (not precedential).

Notably, at the four

doctor visits in the three-months preceding Dr. Enama’s exam and
diagnosis, fibromyalgis was not diagnosed or discussed.
pp. 2-4.

See supra

With the lack of recommended follow-up/suggested

treatment and void of longitudinal evidence related to
fibromyalgia, the Court cannot conclude that Plaintiff has shown
that the claimed error is cause for reversal or remand.
V. Conclusion
Because Plaintiff has failed to show that the claimed error is
cause for reversal, his appeal of the Acting Commissioner’s denial
of benefits (Doc. 1) is properly denied.
12

An appropriate Order is

filed simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 9, 2018

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