Bennick v. Saul
MEMORANDUM (Order to follow as separate docket entry) Signed by Magistrate Judge Joseph F. Saporito, Jr on 3/31/21. (ms)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:20-cv-00209
Commissioner of Social Security,
This is an action brought under 42 U.S.C. §405(g), seeking judicial
review of the Commissioner of Social Security’s (“Commissioner”) final
decision denying Jennifer Bennick’s (“Bennick”) claim for disability
insurance benefits under Title II of the Social Security Act. The parties
have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c) and
Rule 73 of the Federal Rules of Civil Procedure. (Doc. 10). For the reasons
stated herein, we will AFFIRM the decision of the Commissioner.
Bennick is an adult individual born July 28, 1974. Bennick was
forty years old at the time of the alleged onset of disabilityApril 16,
2015. (Tr. 10).
On January 9, 2017, Bennick protectively filed an application for
benefits under Title II of the Social Security Act alleging disability as of
April 16, 2015. In her application, Bennick alleged that the following
impairments prevent her from engaging in any work: rheumatoid
arthritis and Chiari malformation. (Tr. 117).
Bennick’ s claim was initially denied on March 7, 2017. Thereafter,
she filed a timely request for an administrative hearing. Her request was
granted. Bennick appeared and testified in Wilkes-Barre, Pennsylvania,
on September 11, 2018, at a hearing before Administrative Law Judge
(“ALJ”) Timothy Wing.
Bennick was represented by Noah G.
Naparsteck, Esquire. In addition, impartial vocational expert (“VE”)
Michele Giorgio appeared at the hearing. (Tr. 52).
On January 3, 2019, the ALJ denied Bennick’s application for
benefits in a written decision.
On March 11, 2019, Bennick sought
further review of her claims by the Appeals Council of the Office of
Disability Adjudication and Review, but her request was denied on
December 23, 2019. This makes the ALJ’s January 2019 decision the
final decision subject to judicial review by this Court.
Bennick timely filed a complaint in this Court on February 6, 2020.
(Doc. 1). In her complaint, Bennick alleges that the ALJ’s conclusions
and findings of fact are not supported by substantial evidence and are
contrary to law and regulation. In her claim, she requests relief as the
court deems just. (Doc. 1, at 3).
On April 9, 2020, the Commissioner filed an answer, which
maintains that the ALJ’s decision was made in accordance with the law
and regulations. (Doc. 5, at 3).
This matter has been fully briefed by the parties and is ripe for
decision. (Docs. 9, 11).
At the time of the administrative hearing, Bennick was forty-four
years old and resided with her mother and twenty-one-year-old daughter
in Danville, Pennsylvania, which is in the Middle District of
Pennsylvania. (Tr. 58).
Bennick has a high school education and an associates degree. (Tr.
Bennick stated that she is able to vacuum, do laundry, walk the
dog, and cut the grass on a riding lawn mower. (Tr. 61). She stated that
she does drive locally, but when she travels with her mother to Maine
once a year for vacation, her mother drives. She stated that she is able
to walk while on vacation, but no rock climbing.
She also stated that
she takes trips to Gettysburg and walks around. (Tr. 62-63). Bennick is
able to go out shopping with her mother, but her mother drives. (Tr. 64).
She is only comfortable driving locally; she stated that she gets confused
and disoriented and has trouble staying in her own lane when driving
any longer than 30 minutes. (Tr. 64-65). She stated that she does not go
out alone often or drive very long distances because she gets disoriented.
(Tr. 195). Bennick stated that she enjoys her garden. (Tr. 64).
volunteers at a dog shelter, 1-2 days a week. (Tr. 196). Bennick drives
alone to go to the kennel to volunteer. At the kennel she lets the dogs out
for recreation time, brushes and feeds them, and uses an electric power
washer to clean the kennels. She stated that she spends about 10 hours
a week at the kennel. (Tr. 65). She stated that she wears a brace on her
right hand when power washing the kennels and she wears a sling on it
at night when she sleeps. (Tr. 66). Bennick stated that she stopped
working on September 20, 2012, because of her condition. (Tr. 175). In
a January 2017 function report, Bennick stated that her Chiari
malformation causes confusion, comprehension problems, disorientation,
neck pain, cognitive function impairment, speech difficulties at times,
and severe head pressure, which sometimes prevents her from sleeping.
She has had numerous joint reconstructions due to rheumatoid arthritis.
She has pain, swelling, deformations, aches, pain that wakes her up
during the night, and loss of strength. (Tr. 192-93). She stated that she
went to culinary school after high school, but cannot make anything from
memory--she has to read a recipe. (Tr. 194).
Her mom helps her with
her bank account because she cannot do math. (Tr. 195-96). She stated
that she had at one time exercised frequently, but she no longer exercises
because of the pain and the side effects of the medication. (Tr. 196). Since
her brain surgery, she stated that loud noises cause head pain and
pressure that lead to disorientation. (Tr. 197). She stated that she can
follow written instructions better than spoken instructions, because she
is able to review them. (Tr. 197).
STANDARD OF REVIEW
When reviewing the denial of disability benefits, the Court’s review
is limited to determining whether those findings are supported by
substantial evidence in the administrative record. See 42 U.S.C. § 405(g)
(sentence five); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir.
2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of
evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552 (1988). Substantial evidence is less than a preponderance of the
evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S.
389, 401 (1971). A single piece of evidence is not substantial evidence if
the ALJ ignores countervailing evidence or fails to resolve a conflict
created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.
1993). In an adequately developed factual record, substantial evidence
may be “something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the ALJ’s decision] from being supported by substantial
evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
“In determining if the Commissioner’s decision is supported by
substantial evidence the court must scrutinize the record as a whole.”
Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The
question before the Court, therefore, is not whether the claimant is
disabled, but whether the Commissioner’s finding that he or she is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law. See Arnold v. Colvin, No.
3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has
been held that an ALJ’s errors of law denote a lack of substantial
evidence.”) (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913,
914 (W.D. Pa. 1981) (“The [Commissioner]’s determination as to the
status of a claim requires the correct application of the law to the facts.”);
see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that
the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at
536 (“[T]he court has plenary review of all legal issues . . . .”).
To receive disability benefits, a claimant must demonstrate an
“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); see also 20 C.F.R. § 404.1505(a). To satisfy this
requirement, a claimant must have a severe physical or mental
impairment 1 that makes it impossible to do his or her previous work or
any other substantial gainful activity 2 that exists in the national
economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
The Commissioner follows a five-step sequential evaluation process
in determining whether a claimant is disabled under the Social Security
Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must
determine, in sequence: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the claimant’s impairment meets or equals a
listed impairment;3 (4) whether the claimant is able to do past relevant
work, considering his or her residual functional capacity (“RFC”); 4 and
A “physical or mental impairment” is an impairment resulting from
“anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3).
2 “Substantial gainful activity” is work that (1) involves performing
significant or productive physical or mental duties, and (2) is done (or
intended) for pay or profit. 20 C.F.R. § 404.1510.
3 An extensive list of impairments that warrant a finding of disability
based solely on medical criteria, without considering vocational criteria,
is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
4 “Residual functional capacity” is the most a claimant can do in a work
setting despite the physical and mental limitations of his or her
impairment(s) and any related symptoms (e.g., pain). 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, the Commissioner
(continued on next page)
(5) whether the claimant is able to do any other work, considering his or
her RFC, age, education, and work experience. Id. The claimant bears
impairment that prevents him or her from doing past relevant work. 42
U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once
the claimant has established at step four that he or she cannot do past
relevant work, the burden then shifts to the Commissioner at step five to
show that jobs exist in significant numbers in the national economy that
the claimant could perform consistent with his or her RFC, age,
education, and past work experience. 20 C.F.R. § 404.1512(f); Mason, 994
F.2d at 1064.
In his January 3, 2019, decision denying Bennick’s claim, the ALJ
evaluated Bennick’s application for benefits at each step of the sequential
process. At step one, the ALJ found that Bennick had not engaged in
substantial gainful activity during the period of April 16, 2015, through
her date of last insured of December 31, 2017. (Tr. 12). At step two, the
considers all medically determinable impairments, including those that
are not severe. Id. § 404.1545(a)(2).
ALJ found the following impairments were medically determinable and
severe during the relevant period: rheumatoid arthritis, bilateral elbow
disorder including epicondylitis, and bilateral wrist disorder including
radial-ulnar joint disorder status post-surgery. (Tr. 12). At step three,
the ALJ found that Bennick did not have an impairment or combination
of impairments that met or medically equaled the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, during
the relevant period. (Tr. 13). Between steps three and four, the ALJ
assessed Bennick’s RFC.
After evaluating the relevant evidence of
record, the requirements of 20 C.F.R. § 404.1529, and the guidance of
Social Security Ruling 16-3p, the ALJ found that Bennick had the RFC
to perform light work as defined in 20 C.F.R. 404.1567(b), with the
she is limited to occupations that require no more
than occasional postural maneuvers, such as
balancing, stooping, kneeling, crouching, and
climbing ramps or stairs.
She must avoid
occupations that require climbing on ladders,
ropes, and scaffolds or crawling, and she is limited
to occupations that require no more than
occasional pushing and pulling with the upper
She must avoid concentrated
prolonged exposure to fumes, odors, dusts, gases,
chemical irritants, environments with poor
ventilations, temperature extremes, excessive
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noise, excessive vibration, extreme dampness, and
humidity, and she is limited to occupations that do
not require frequent exposure to dangerous
machinery and unprotected heights.
limited to occupations requiring no more than
simple, routine, and repetitive tasks, not
environment, involving only simple, work-related
decisions, and in general, relatively few workplace
The ALJ’s conclusions at steps four and five of the sequential
evaluation process were based on his RFC assessment and the VE’s
testimony. At step four, the ALJ found that Bennick was unable to
perform her past relevant work as defined in 20 C.F.R. § 404.1565.
Bennick had past relevant work as a data entry clerk, legal secretary,
and staff sergeant for the U.S. Air Force. The requirements of Bennick’s
past relevant work exceeded the limitations of her current RFC. The ALJ
found that Bennick is unable to perform her past relevant work as
actually or generally performed. (Tr. 18).
It is the claimant who bears the initial burden of proving the
existence of a disability. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Rossi
v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). Once the claimant has
established at step four that she cannot do any work she has done in the
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past because of her impairments, the burden shifts to the Commissioner
at step five to show that jobs exist in significant numbers in the national
economy which the claimant could perform consistent with her RFC, age,
education, and past work experience. Rossi, 602 F.2d at 57.
The ALJ found that Bennick was forty years old at the time of her
alleged disability onset. Bennick’s age places her in a category of a
“younger person” under the Social Security Act whose age generally does
not affect her ability to adjust to other work. See 20 C.F.R. § 404.1563(c).
According to the testimony given by a vocational expert, a significant
number of jobs exist in the national economy for an individual of
Bennick’s age, education, work experience, and her RFC as determined
by the ALJ. (Tr. 20, 83). These jobs include: usher, DOT No. 344.677-014,
with 85,000 positions available nationally; service attendant, DOT No.
352.667-014, with 23,000 positions available nationally, and counter
clerk, DOT No. 299.357-018, with 101,000 positions available nationally.
Having found a significant number of jobs to which Bennick was capable
of making a successful adjustment, the ALJ concluded that Bennick was
therefore not disabled as of her alleged onset date of April 16, 2015,
through her date of last insured--December 31, 2017. (Tr. 20).
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Bennick contends the ALJ erred as follows: (1) failure to find her
decompression of Chiari malformation, and migraine headaches were
severe impairments; (2) improper lay interpretation of the medical
evidence in formulating her RFC; (3) failure to adequately address her
physical impairments in the RFC; and (4) failure to consider her
testimony concerning the effect her medications have on her.
a. The ALJ did not err when finding Bennick’s Chairi
Bennick contends that the ALJ erred in failing to find Bennick’s
decompression of Chiari malformation, and migraine headaches were
At step two of the five-step sequential evaluation process, the ALJ
must determine whether a claimant has a medically determinable
impairment or a combination of impairments that is severe. 20 C.F.R. §
404.1520(a). An impairment or combination of impairments is severe if it
significantly limits a claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(c). The ALJ must “consider an
individual’s symptoms and functional limitations to determine whether
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his or her impairment(s) is severe unless the objective medical evidence
alone established a severe medically determinable impairment or
combination of impairments.” Soc. Sec. Ruling 16-3 p, 2017 WL 518304,
at *11 (eff. Mar.28, 2016). The ALJ must “evaluate the intensity and
persistence of an individual’s symptoms such as pain and determine the
extent to which an individual’s symptoms limit his or her ability o
perform work-related activities.” Rescission of Social Security Rulings
96-3 and 96-4, 83 Fed. Reg. 27,816 (June 14, 2018).
It is well-established that the ALJ—not treating or examining
physicians or state agency consultants—must make the ultimate
disability and RFC determinations. Chandler v. Comm’r of Soc. Sec., 667
F.3d 356, 361 (3d Cir. 2011). Further, where the ALJ’s decision in a social
security disability benefits case 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. Richards, 223 F.
Supp. 3d at 304.
Typically, any error in failing to find a severe impairment at step
two would be a “harmless error” if the ALJ continued with the analysis,
proceeding on to step three, as he did here. See Salles v. Comm’r of Soc.
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Sec., 229 Fed. App’x 140, 145 n.2 (3d Cir. 2007). Regardless, we find that
the ALJ did not err in failing to find Bennick’s Chiari malformation a
The records confirm that Bennick had Chiari
posterior fossa decompressive surgery in October 2012, and she reported
only residual headaches as a symptom after surgery. (Tr. 564, 655).
In finding Bennick’s Chiari malformation non-severe, the ALJ
carefully considered the medical record in its entirety including medical
records from Geisinger Medical Center that noted she has a history of
Arnold-Chiari malformation, but no focal neurologic deficits. (Tr. 568).
Records show that her gait was normal, and her strength was five out of
five. (Tr. 569). In March 2017, it was noted that Bennick had a history
of headaches. (Tr. 536).
Bennick points out that Dr. Timmons opined that she was unable
to be gainfully employed, but when reviewing the records, the notes were
actually made by Dr. Timmons’s physician assistant, Kevin A. Hickman.
(Tr. 394). Because Bennick’s application for benefits was filed before
March 27, 2017, Hickman is not considered an acceptable medical source,
and thus his findings are not considered to be medical opinions under the
applicable regulations. See 20 C.F.R. § 404.1502(a)(8) (providing that
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licensed physician assistants are “acceptable medical sources” only for
claims filed after March 27, 2017); id. § 404.1527(a)(1) (defining “medical
Moreover, even if this comment had been noted by Dr.
Timmons or another acceptable medical source, it is an opinion on
disability, an issue expressly reserved to the Commissioner. See id. §
404.1527(d)(1); Dixon v. Comm’r of Soc. Sec., 183 Fed. App’x 248, 251 (3d
Cir. 2006) (“[o]pinions on disability are not medical opinions and are not
given any special significance.”).
Additionally, Bennick points out that on August 14, 2017, she was
having motion sickness while watching videos and while in vehicles. (Tr.
655). The record shows that Bennick was given meclizine for the motion
sickness, and no further issues or treatment for the motion sickness are
Bennick denied any weakness, paresthesias,
balance/coordination difficulties, or changes in vision/hearing. (Tr. 656).
A diagnostic brain MRI was ordered which revealed unremarkable
findings. (Tr. 664-665).
At her administrative hearing in September 2018, Bennick testified
that she experienced incapacitating migraines occurring every 2 weeks,
but she also admitted that she was not taking a preventative medication
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or seeing a specialist at the time of the hearing. (Tr. 61). Bennick
testified that her migraines come about with increased activity and
stimuli. (Tr. 69). She also complained that her migraines come about
when she needs to process plenty of information. (Tr. 60-61). She stated
that the migraines last for 2-3 days before she can return to normal. (Tr.
69). She stated that, during a migraine, she is unable to do anything.
She uses black out curtains, an icepack on her head, and she sleeps. (Tr.
Bennick was seen by Christian Silvio Greco, D.O., for her
headaches on May 20, 2015. Bennick explained that headaches come on
slowly at times, and quickly at others. She described the headaches as a
stuffy feeling that lasts 2 to 10 days. At the time, sertralin decreased the
duration of her headaches from 5-10 days to 2 days. (Tr. 351). By a visit
on August 24, 2016, her headaches seemed to have resolved, and she
stated that, for the first time in years, she felt relief. (Tr. 254). In
September 2016, she told her primary care physician, Dr. Greco, that her
headaches were significantly reduced. She told Dr. Greco that she was
no longer having headaches on a daily basis, and she had experienced
only three headaches within a 15 day period prior to her visit. (Tr. 246).
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When seen by Dr. Tolentino and Dr. Mahmood on January 2, 2018-after her date last insured--Dr. Tolentino noted that sertraline could
have contributed to her feeling of head fullness and perhaps brain fog.
An MRI from August 2017 was unrevealing. (Tr. 827). On January 16,
2018, Laurie Elizabeth Stoker, PA-C, noted that Bennick described
photophobia which is lessened by a dark room and ice bags on her head,
but the intensity was severe at times. (Tr. 883). PA Stoker recommended
and referred her for evaluation by neurology and head specialist Dr.
Nancy Kelley. (Tr. 884).
The ALJ noted that Bennick’s own testimony showed that she was
capable of engaging in a wide variety of daily activities which were
inconsistent with her allegations of disabling symptoms and limitations.
(Tr. 16). The ALJ pointed out that Bennick was able to attend to her
personal hygiene with some difficulty and prepared her own meals. She
was able to do laundry, clean, garden, and weed. She could walk, drive,
shop, use a computer, go out to eat, and visit with others. (Tr. 13).
Thus, we find that the ALJ’s severity finding was supported by
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The ALJ properly determined Bennick’s residual
Bennick argues that the ALJ improperly used lay interpretation of
the medical evidence in formulating Bennick’s RFC. Bennick argues that
the only medical opinion of record regarding Bennick’s mental ability to
perform work-related activities is from treating neurosurgeon, Dr.
Timmons. Dr. Timmons noted that Bennick was unable to multi-task,
and she needed redirection multiple times during the appointment.
Bennick argues that Dr. Timmons opined that she was unable to be
gainfully employed, but as noted earlier, that entry in the medical records
was made by a physician assistant, and thus it was a lay opinion on an
issue expressly reserved to the Commissioner. (Tr. 394).
The ALJ did not rely on a consulting examining physician’s opinion.
Instead, he gave significant weight to the non-examining state agency
physician, Carl Bencoff, M.D., who opined that Bennick could lift or carry
twenty pounds occasionally and ten pounds frequently, and she could
stand or walk for about six hours in an eight-hour workday. Dr. Bencoff
opined that Bennick could occasionally climb ramps and stairs, and she
could never climb ladders, ropes, or scaffolds. She could occasionally
balance, stoop, kneel, crouch, and crawl, while avoiding concentrated
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exposure to hazards. (Tr. 120-21). Here, the ALJ gave this opinion
significant weight as he felt it is supported by a majority of the objective
In deciding what weight to accord competing medical opinions, the
ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). The opinion
of a treating source is afforded controlling weight when it is wellsupported by objective medical evidence that is consistent with
substantial evidence in the record. See 20 C.F.R. § 404.1527; Morales v.
Apfel, 225 F.3d 310, 316 (3d Cir. 2000). ALJs have the sole authority to
assign weight to medical opinions entered into the record. See Zirnsak v.
Colvin, 777 F.3d 607, 614 (3d Cir. 2014) (discussing how “the ALJ is free
to accept some medical evidence and reject other evidence, provided that
[the ALJ] provides an explanation for discrediting the rejected evidence”).
It is the duty of the ALJ to explain the rationale for the weight afforded.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The purpose of this
is to allow for meaningful judicial review. Burnett v. Comm’r Soc. Sec.
Admin., 220 F.3d 112, 119 (3d Cir. 2000).
Where no medical opinion is entitled to controlling weight, the
Commissioner’s regulations direct the ALJ to consider the following
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factors, where applicable, in deciding the weight given to any noncontrolling medical opinion: the length of the treatment relationship and
frequency of examination; the nature and extent of the treatment
relationship; the extent to which the source presented relevant evidence
to support his or her medical opinion, and the extent to which the basis
for the source’s conclusions were explained; the extent to which the
source’s opinion is consistent with the record as a whole; whether the
source is a specialist; and any other factors brought to the ALJ’s
attention. 20 C.F.R. §404.1527(c).
Furthermore, the ALJ’s articulation of the weight accorded to each
medical opinion must be accompanied by “a clear and satisfactory
explication of the basis on which it rests.” Cotter, 642 F.2d at 704. This
principle applies with particular force to the opinion of a treating
physician. See 20 C.F.R. §§ 404.1527(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give
your treating source’s opinion.”). “Where a conflict in the evidence exists,
the ALJ may choose whom to credit but ‘cannot reject evidence for no
reason or the wrong reason.’” Plummer, 186 F.3d at 429 (quoting Mason,
994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
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To be a “medical opinion” entitled to “controlling weight” an opinion
must come from a “treating source,” it must be “well-supported by
medically acceptable clinical and laboratory diagnostic techniques,” and
it must be “not inconsistent with the other substantial evidence in your
case record.” 20 C.F.R. § 404.1527(a)(2), (c)(2); Soc. Sec. Ruling 96–
2p, 1996 WL 374188, at *2. Under the Social Security regulations, a
“treating source” is defined as
“an acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with you.” 20
C.F.R. § 404.1527(a)(2). As to what constitutes an “ongoing treatment
relationship,” the regulation states:
Generally, we will consider that you have an
ongoing treatment relationship with an acceptable
medical source when the medical evidence
establishes that you see, or have seen, the source
with a frequency consistent with accepted medical
practice for the type of treatment and/or
evaluation required for your medical condition(s).
We may consider an acceptable medical source
who has treated or evaluated you only a few times
or only after long intervals (e.g., twice a year) to be
your treating source if the nature and frequency of
the treatment or evaluation is typical for your
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20 C.F.R. § 404.1527(a)(2).
If not well-supported by medically acceptable clinical and
diagnostic techniques or inconsistent with other substantial evidence in
the case record, a treating source’s medical opinion is nevertheless
entitled to some deference. Soc. Sec. Ruling 96–2p, 1996 WL 374188, at
*4. Ordinarily, it will be afforded “great weight.” See id.; Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir.2000). See generally 20 C.F.R. §
404.1527(c) (detailing factors considered in evaluating weight given to a
Under the Social Security regulations in effect at the time of the
ALJ’s decision in this case, however, “medical opinions” are defined as
“statements from acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(1). Similarly, the regulations define a “treating source” as
an “acceptable medical source” who has provided the claimant with
“medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship” with the claimant. Id. § 404.1527(a)(2). For
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claims filed before March 27, 2017, the regulations in turn define an
“acceptable medical source” as a “[l]icensed physician (medical or
osteopathic doctor),” a licensed or certified psychologist, a licensed
optometrist for visual impairments, a qualified speech-language
pathologist for language impairments, or a “[l]icensed podiatrist for
impairments of the . . . foot and ankle only.” Id. § 404.1502(a).
It is the ALJ’s responsibility to evaluate opinion evidence as the
finder of fact, not a reviewing court. See id. § 404.1527; Chandler v.
Comm’r of Soc. Sec. 667 F.3d 356, 361 (3d Cir. 2009). The Third Circuit
Court of Appeals has long been concerned with ALJ opinions that fail
properly to consider, discuss, and weigh relevant medical evidence. See
Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3d Cir. 1979).
Bennick contends that she has physical pain in her elbows, wrists,
back, and knees. She takes Humira shots, ibuprofen, and Flexeril for her
rheumatoid arthritis. (Tr. 72). She stated that the Flexeril “knocks her
out.” Bennick’s records show that her rheumatoid arthritis was stable
In February 2014, Dr. Olenginski noted that she
experienced wrist pain, but Humira provided her relief. (Tr. 835). In
October 2014, he noted that her rheumatoid arthritis was stable and
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without flare-ups. (Tr. 385). In November 2016, Joseph Kapcia, M.D.,
noted that Bennick had a history of rheumatoid arthritis that was wellcontrolled. (Tr. 235). In August 2017, it was noted that Bennick had
chronic rheumatoid arthritis and a history of joint operations. Bennick
continued on Humira and was stable without significant joint pain or
erythema. (Tr. 661).
Bennick argues that the ALJ did not sufficiently account for her
history of upper extremity surgeries, and that the only accommodation
made for that in the RFC was she would be limited to occupations that
require no more than occasional pushing and pulling with the upper
The ALJ considered Bennick’s post-surgery wrist
examination findings. (Tr. 17-18). In June 2017, Bennick’s elbow and
wrist ranges of motion showed no crepitation or instability. (Tr. 17, 611).
Her strength was assessed at five out of five with sensations intact. (Id.).
Moreover, Bennick’s own testimony established that most of her daily
activities were not significantly impaired by her surgeries in that she
remained capable of mowing her lawn on a riding mower, caring for her
garden, and using a snowblower in the winter while wearing a right wrist
brace. (Tr. 61, 62, 64). Therefore, we find this assignment of error lacks
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c. The ALJ’s credibility determination was supported by
The last contested issue here relates to whether the ALJ
erroneously found Bennick’s testimony about her impairments and side
effects of her medications to be not entirely credible. As a general matter,
a Court should “ordinarily defer to an ALJ’s credibility determination.”
Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). As the factfinder,
the ALJ evaluates the credibility of witnesses. Van Horn v. Schweiker,
717 F.2d 871, 873 (3d Cir. 1983). While “any statements of the individual
concerning his or her symptoms must be carefully considered, the ALJ is
not required to credit them.” Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 363 (3d. Cir. 2011). To assess a claimant’s credibility, the ALJ must
consider several factors, including the claimant’s daily activities, the
intensity of the symptoms, the treatment received, and other facts
concerning functional limitations and restrictions.” 20 C.F.R. §
404.1529(c)(3). The ALJ should reject claims of subjective complaints if
he or she does not find them credible. See Schaudek v. Comm’r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999).
In evaluating a claimant’s subjective complaints, the ALJ engages
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in a two-step process in which the ALJ determines whether the claimant
has an impairment that could reasonably cause the alleged symptoms,
and then evaluates the intensity and persistence of the claimant’s
symptoms, such as pain, and determines the extent to which the
claimant’s symptoms limit his or her ability to perform work-related
activities. See Soc. Sec. Ruling 163-p, 2017 WL 5180304 (eff. Mar. 28,
In this situation, the ALJ concluded at step three that Bennick’s
“statements concerning the intensity, persistence, and limiting effects of
[her] symptoms are not entirely credible” because her alleged degree of
incapacity is not supported by the record evidence. (Tr. 13).
The records show that Bennick had Chiari posterior fossa
decompressive surgery in October 2012, and she was only reporting
residual headaches as a symptom after surgery. (Tr. 564, 655).
The ALJ considered the medical record in its entirety, including the
medical records from Geisinger Medical Center, which noted she has a
history of Arnold-Chiari malformation, but no focal neurologic deficits.
(Tr. 568). Records note that her gait was normal, and her strength was
five out of five. (Tr. 569). In March 2017, it was noted that Bennick had
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a history of headaches. (Tr. 536). The review of the various findings in
the record is direct evidence that the ALJ considered the entire case
record in determining the extent to which her symptoms limit her ability
to perform work, in accordance with Social Security Ruling 16-3p.
Because the Court is constrained by a highly deferential standard
with regard to determinations in plaintiff’s credibility, and the ALJ
demonstrated that at step three he considered the entire record by
pointing to evidence that supports his finding that Bennick’s statements
on her symptoms are not entirely credible, we conclude that there was no
error in the ALJ’s determination in Bennick’s credibility.
Accordingly, for the reasons stated above, we find that the ALJ’s
decision is supported by substantial evidence. Thus, the decision of the
Commissioner of Social Security shall be affirmed.
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An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge
Dated: March 31, 2021
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