Dries v. Colvin
Filing
27
MEMORANDUM (Order to follow as separate docket entry) re: 24 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Miriam E. Dries. Signed by Honorable Matthew W. Brann on 10/31/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MIRIAM E. DRIES,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Commissioner of the
Social Security Administration
Defendant.
:
:
:
:
:
:
:
:
:
:
:
No. 4:16-CV-01014
(Judge Brann)
(Magistrate Judge Mehalchick)
MEMORANDUM OPINION
OCTOBER 31, 2017
Plaintiff, Miriam E. Dries, filed a complaint on May 27, 2016, naming as
Defendant Carolyn W. Colvin, then Acting Commissioner of the Social Security
Administration.2 Because Plaintiff Dries (“Plaintiff”) sought judicial review of the
Commissioner’s (“Commissioner”) final decision, this matter was referred to
Magistrate Judge Karoline Mehalchick for the preparation and recommended
disposition under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b).
1
2
The Complaint (ECF No. 1) correctly named Carolyn W. Colvin as Defendant, as she was
the Acting Commissioner of the Social Security Administration at the time it was filed. As of
January 23, 2017, Nancy A. Berryhill is the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill shall be substituted for
Carolyn W. Colvin as Defendant in this matter.
As noted in Footnote 1, Nancy A. Berryhill shall replace Carolyn W. Colvin as Defendant in
this matter.
For the reasons that follow, Magistrate Judge Mehalchick’s Report and
Recommendation is adopted in full, and final judgment is entered against Plaintiff.
I.
BACKGROUND
Magistrate Judge Mehalchick’s comprehensive disposition of May 3, 2017,3
recommended that the Commissioner’s decision be affirmed and that Plaintiff’s
request for benefits be denied.4 Because I write for the parties, I will conserve
judicial resources and not rehash Magistrate Judge Mehalchick’s Report and
Recommendation.
II.
LAW
A.
Standard of Review
When considering a social security appeal, the Court has plenary review of
all legal issues decided by the Commissioner.5 However, my review of the
Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is to determine
whether those findings are supported by “substantial evidence.”6 The factual
findings of the Commissioner, “if supported by substantial evidence, shall be
conclusive. . . .”7 “Substantial evidence does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might
3
4
5
6
7
See ECF No. 24.
Id. at 21.
See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Johnson v. Comm’r of
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008).
Poulos, 474 F.3d at 91.
42 U.S.C. § 405(g).
- 2 -
accept as adequate to support a conclusion.”8 Substantial evidence has been
described as more than a mere scintilla of evidence but less than a preponderance.9
“It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”10 The United States Court of Appeals for the Third Circuit
has stated:
[O]ur 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
[Commissioner] 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.11
Therefore, a court reviewing the Commissioner’s decision must scrutinize the
record as a whole.12
B.
Objections to a Report and Recommendation
Upon designation, a magistrate judge may “conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact
8
9
10
11
12
Johnson, 529 F.3d at 200 (quoting Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999))
(internal quotations and citations omitted).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900,
901 (3d Cir. 1995)) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)).
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing Kent v. Schweiker, 710 F.2d 110,
114 (3d Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986)).
Id. (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
- 3 -
and recommendations.”13 Once filed, this Report and Recommendation is
disseminated to the parties in the case who then have the opportunity to file written
objections.14 When such objections are filed timely, the District Court must
conduct a de novo review of those portions of the report to which objections are
made.15 Although the standard of review for objections is de novo, the extent of
review lies within the discretion of the District Court, and the Court may otherwise
rely on the recommendations of the magistrate judge to the extent it deems
proper.16
For portions of the Report and Recommendation to which no objection is
made, the Court should, as a matter of good practice, “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.”17
Regardless of whether timely objections are made by a party, the District Court
may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.18
13
14
15
16
17
18
28 U.S.C. § 636(b)(1)(B).
28 U.S.C. § 636(b)(1).
28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011)
Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2011) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
Fed. R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F.Supp.2d 465, 469 (M.D. Pa. 2010) (citing Henderson v. Carlson, 812
F.2d 874, 878 (3d Cir. 1987) (explaining that judges should give some review to every
Report and Recommendation)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.
- 4 -
III.
ANALYSIS
Plaintiff raises the following objections to Magistrate Judge Mehalchick’s
Report and Recommendation: The Administrative Law Judge (“ALJ”) committed
reversible error in (1) failing to give Dr. Masey’s Opinion a more comprehensive
finding; (2) failing to properly evaluate all of Plaintiff’s medical determinable
impairments; and (3) failing to address the restrictions found in Dr. Goodman’s
medical opinion.19 I will discuss each of these claims, in turn.
A.
ALJ’s failure to assign weight to Dr. Masey’s opinion was not
harmless error.
Plaintiff first contends that the ALJ failed to properly consider Dr. Masey’s
opinion. Plaintiff specifically argues that the ALJ committed reversible error in
failing to articulate the weight she accorded to Dr. Masey’s opinion.20 Plaintiff
contrasts the comprehensive evaluation the ALJ gave to the State agency
psychological consultant’s opinion, where the ALJ articulated the weight she
accorded to it, with the absence of such an evaluation of Dr. Masey’s opinion.21
Plaintiff also argues the single paragraph that the ALJ provided in summarizing Dr.
Masey’s opinion coupled with the lack of explanation as to the ALJ’s findings was
reversible error.22
19
20
21
22
See ECF No. 25, at 2, 5, 6, & 9.
Id. at 2.
Id. at 3; see also ECF No. 10-3, at 9.
Id at 3-4.
- 5 -
While the ALJ failed to articulate the weight that she accorded to Dr.
Masey’s opinion as required under 20 C.F.R. § 416.927(c), I find such error
harmless. Several Courts of Appeal have dealt with this issue. For example, the
United States Court of Appeals for the Tenth Circuit in Keyes-Zachary v. Astrue
found that an ALJ’s failure to articulate what weight the ALJ accorded to a
physician’s report was harmless where the ALJ developed a residual functional
capacity (“RFC”) consistent with the physician’s findings.23 Similarly, the United
States Court of Appeals for the Eleventh Circuit in Lara v. Comm’r of Soc. Sec.
found the ALJ’s failure to articulate the weight accorded to the medical opinions
was harmless error because the ALJ’s decision was consistent with those medical
opinions.24 Furthermore, the Sixth and Seventh Circuits found an ALJ’s failure to
assign weight to medical opinions harmless error when the ALJ’s opinion was
consistent with the medical findings.25
The United States Court of Appeals for the Third Circuit has also addressed
this issue, in part, in Fargnoli v. Massanari.26 In Fargnoli, the ALJ’s findings not
23
24
25
26
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012).
Lara v. Comm’r of Soc. Sec., No. 16-16247, 2017 WL 3098126, at *6 (11th Cir. July 21,
2017).
See Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007) (“Therefore, failure to explicitly
state how much weight an ALJ was providing such observations is harmless under Wilson
because the ALJ’s opinion is completely consistent with such observations.”); Schomas v.
Colvin, 732 F.3d 702, 707 (7th Cir. 2013) (holding the ALJ’s failure to “provide an accurate
and logical bridge” in assigning weight is harmless error).
See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
- 6 -
only contradicted the medical opinions given by two other doctors,27 but also failed
to mention the contradictory evidence and articulate the weight the ALJ accorded
to the medical opinions.28 As the Third Circuit stated, “[w]here there is conflicting
probative evidence in the record, we recognize a particularly acute need for an
explanation of the reasoning behind the ALJ’s conclusions, and will vacate or
remand a case where such an explanation is not provided.”29 Despite the ALJ’s
failure to articulate the weight she accorded to Dr. Masey’s Opinion, Fargnoli is
not particularly instructive here.
The instant case is distinguishable from Fargnoli because the ALJ’s findings
were not inconsistent with or contradictory to Dr. Masey’s medical opinion. Dr.
Masey here noted that Plaintiff “would likely have difficulties in employment
situations requiring any degree of speed” and would “perform best under
circumstances when she is able to perform one task and start another rather than
having to multitask.”30 Based on the medical opinions and evidence provided, the
ALJ found that the Plaintiff “is capable of performing work that can be learned
within 1 month and requires only occasional decision making and occasional
27
28
29
30
Id.
Id.
Id. at 42.
ECF No. 10-3, at 9.
- 7 -
changes to the work setting. The [Plaintiff] is precluded from performing work
requiring a production rate pace.”31
Both findings reflect the view that Plaintiff would perform best in an
employment situation that does not require fast-paced tasks, permits her to focus
on one task at a time, and provides her an adequate timeframe to learn and adapt to
the task. The ALJ clearly considered all relevant medical opinions, including Dr.
Masey’s, and based her decision accordingly. As such, I find the ALJ’s failure to
articulate the weight she accorded to Dr. Masey’s medical opinion to be harmless
error.
To briefly address Plaintiff’s other quarrels, Plaintiff first argues paragraph
size matters. Contrary to Plaintiff’s argument, I am hard-pressed to find that the
differences in paragraph size rise to the level of inequality that Plaintiff urges.
Rather than looking to the substantive aspects of the opinions, Plaintiff remains
particularly perturbed over paragraph length and the ALJ’s word choice of “as for
the opinion evidence,” which introduced a paragraph discussing the State agency
medical consultant’s opinion.32 These superficial concerns form no basis on which
a claim can be made.
31
32
Id. at 11.
ECF No. 25, at 3; see ECF No. 10-3, at 14.
- 8 -
Plaintiff also dissents regarding the difference between neuropsychological
and psychiatric evaluations.33 As Plaintiff correctly notes, Dr. Masey performed a
neuropsychological evaluation; however, the neuropsychological evaluation
indicated “mild organic psychiatric conditions.”34 Plaintiff fails to understand that
a neuropsychological evaluation is a particular assessment of cognitive processes
to determine whether there are any overarching psychiatric35 conditions.
Accordingly, I find Plaintiff’s first contention without merit and the ALJ’s
conclusions based on substantial evidence.
B.
The ALJ’s failure to evaluate all of Plaintiff’s medically
determinable impairments was not harmless error.
1.
Obesity
Plaintiff next contends that the ALJ’s failure to discuss obesity as a
medically determinable impairment resulted in reversible error.36 Plaintiff argues
that the ALJ should have considered her obesity as a severe impairment because
Plaintiff referenced her weight and how it exacerbated her impairments during the
administrative hearing, and because the medical evidence referenced obesity.37
33
34
35
36
37
See ECF No. 25, at 4.
ECF No. 10-4, at 9.
See Psychiatric, Black’s Law Dictionary (10th ed. 2014) (defining psychiatric as “of, relating
to, or involving the study or treatment of mental, emotional, and behavioral disorders by
medical doctors trained in the field of psychiatry.”).
Id. at 9. Plaintiff’s contention that the ALJ’s failure to discuss her obesity as a medically
determinable impairment was not harmless error is her fourth argument. This contention and
her second – that the ALJ failed to address Plaintiff’s diagnosis of pain disorder – are similar
and are best discussed together.
Id.
- 9 -
As support for her contention, Plaintiff cites the Third Circuit case of Diaz v.
Comm’r of Soc. Sec.38 In opposition, the Commissioner adopts the Report and
Recommendation’s discussion of Rutherford v. Barnhart.39 Both cases propel this
matter one way or another; therefore, I will discuss each case to fully illuminate
which path this matter should take.
In Rutherford, the plaintiff, who was five feet, two inches (5’2”) tall and
weighed 245 pounds,40 met with several doctors “to assess her condition.”41 At the
ALJ hearing, the plaintiff testified as to experiencing “weakness in her right arm,”
“pain in her lower back,” and her requiring the use of a cane to “steady herself
while walking and standing.”42 The ALJ concluded at step two of the sequential
analysis that the plaintiff suffered from “severe impairments in her right upper
extremity and lower back”; but, in step three, concluded that the plaintiff “did not
have impairments that would permit a showing per se disability.”43 Although the
ALJ concluded at step four that the plaintiff “could no longer perform her past
relevant work,” he concluded at step five that a number of jobs existed in the
economy that the plaintiff could perform, thereby finding her not disabled.44
38
39
40
41
42
43
44
See Diaz v. Comm’r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009).
See Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005).
Id. at 552.
Id. at 550.
Id. at 551.
Id. at 552.
Id.
- 10 -
On appeal, the plaintiff contended that the ALJ’s failure to consider her
weight was reversible error.45 The plaintiff argued Social Security Ruling 00-3p
required the ALJ to consider obesity explicitly in his sequential analysis, especially
when her height and weight were provided in the medical records.46
The Third Circuit disagreed with the plaintiff’s argument, finding a Seventh
Circuit case, Skarbek v. Barnhart, persuasive.47 In Skarbek, the Court stated:
An ALJ is required to consider impairments a claimant says he has, or
about which the ALJ receives evidence. Although Skarbek did not
specifically claim obesity as an impairment (either in his disability
application or at his hearing), the references to his weight in his
medical records were likely sufficient to alert the ALJ to the
impairment. Despite this, any remand for explicit consideration of
Skarbek’s obesity would not affect the outcome of this case. Notably,
Skarbek does not specify how his obesity further impaired his ability
to work, but speculates merely that his weight makes it more difficult
to stand and walk. Additionally, the ALJ adopted the limitations
suggested by the specialists and reviewing doctors, who were aware
of Skarbek’s obesity. Thus, although the ALJ did not explicitly
consider Skarbek’s obesity, it was factored indirectly into the ALJ’s
decision as part of the doctors’ opinions.48
In tandem with Skarbek, the Third Circuit in Rutherford noted that the plaintiff
failed to assert obesity as impairment, even when the ALJ directly asked her to list
any additional impairments at the hearing.49
45
46
47
48
49
Id.
Id.
See Skarbek v. Barnhart, 390 F.3d 500 (7th Cir. 2004) (per curiam).
Rutherford, 399 F.3d at 552-53 (citing Skarbek, 390 F.3d at 504).
Id. at 553.
- 11 -
Moreover, the Third Circuit reasoned that the plaintiff never specified how
her obesity “ma[de] it more difficult for her to stand, walk and manipulate her
hands and fingers.”50 The Court found that the plaintiff’s generalized response that
her weight makes things more difficult could not justify remand when compared to
the “voluminous medical evidence” the ALJ evaluated.51 The Court held that,
because the plaintiff’s doctors were aware of her obesity and they reasonably
incorporated such an impairment into their opinions, the ALJ’s adoption of their
opinions resulted in a “satisfactory if indirect consideration of that condition,” i.e.,
her obesity.52
In Diaz, by contrast, the plaintiff was four feet, eleven inches (4’11”) tall
and weighed 252 pounds.53 The plaintiff testified that “her pain was most acute in
the region between her hip and left knee, and described frequent swelling in her
knees and ankles.”54 The plaintiff also testified that “she could sit for about half an
hour[,] and that she need[ed] to take shifts between sitting and standing.”55 In
addition to the plaintiff’s testimony, the “ALJ considered evidence presented by
numerous doctors concerning [the plaintiff’s] physical and mental limitations.”56
50
51
52
53
54
55
56
Id.
Id.
Id.
Diaz, 577 F.3d at 502.
Id.
Id. (internal quotation marks omitted).
Id.
- 12 -
Evaluating the evidence, the ALJ proceeded through the five-step sequential
analysis.57 After finding that the plaintiff “was not engaged in substantial gainful
activity,” the ALJ continued to step two where he determined that the plaintiff’s
severe impairments consisted of the following: “diabetes, hypertension, asthma,
back disorder, degenerative joint disease of the knee, adjustment disorder, and
obesity.”58 The ALJ also found that the plaintiff’s diagnosis of adjustment disorder
constituted a severe impairment.59 In step three, the ALJ only discussed the
plaintiff’s “diabetes, hypertensive cardiovascular disease, chronic pulmonary
insufficiency and asthma, disorder of the spine, joint dysfunction, and mental
capacity.”60 The ALJ failed to discuss the impact of plaintiff’s obesity individually
and “in combination with her other impairments,” despite acknowledging it in step
two.61 The ALJ then continued through steps four and five of the sequential
analysis before arriving at his conclusion.62
On appeal, the plaintiff argued that the ALJ committed reversible error in
failing to consider her obesity.63 In opposition, the Commissioner cited Rutherford
in that the ALJ’s adoption of the provided medical opinions “constitutes a
57
58
59
60
61
62
63
Id.
Id.
Id.
Id.
Id. at 504.
See id. at 502-03.
Id. at 503.
- 13 -
satisfactory, if indirect, consideration of” obesity.64 The Court distinguished the
case from Rutherford by stating that the plaintiff in Rutherford “did not assert
obesity as an impairment, nor did the ALJ note, or discuss, it.”65 In contrast, the
plaintiff in Diaz had initially asserted obesity as an impairment, the ALJ
acknowledged it as a severe impairment, and the Court found the plaintiff’s morbid
obesity, “as a matter of common sense,” seemingly would exacerbate her other
impairments.66
The Third Circuit in Diaz based its holding on the fact that the plaintiff
initially asserted obesity as a severe impairment and the ALJ acknowledged it.67
Accordingly, the Court held that the ALJ’s failure to discuss the plaintiff’s obesity
individually and in combination with her other impairments, after recognizing it as
an impairment, was reversible error.68
Turning to the instant matter, as Magistrate Judge Mehalchick correctly
reasoned in her Report and Recommendation and contrary to Plaintiff’s contention
that Diaz governs this matter, I find Rutherford most instructive. First, as in both
Diaz69 and Rutherford,70 the medical evidence provided here indicated that Plaintiff
64
65
66
67
68
69
70
Id. at 504.
Id.
Id.
Id. at 504.
Id. at 505.
See id. at 502.
See Rutherford, 399 F.3d at 552.
- 14 -
suffered, in part, from obesity.71 Unlike the ALJ in Diaz,72 but similar to the ALJ in
Rutherford,73 the ALJ here did not find obesity as a severe impairment at step two;
the ALJ found only the following to constitute severe impairments: “Lumbar
degenerative disc disease, Osteoarthritis of the Lumbar Spine and Degenerative
Joint Disease of the Bilateral Knees, [and] Status Post Left Knee Replacement.”74
Contrary to the ALJ in Diaz, the ALJ here was not required to consider obesity
“alone and in combination with her other impairments” because it was neither
found nor acknowledged by the ALJ as a severe impairment.75 In line with
Rutherford, because the ALJ adopted the medical evidence provided that noted
Plaintiff’s obesity, the ALJ’s decision “constitutes a satisfactory if indirect
consideration of” Plaintiff’s obesity.76
Further, the ALJ here asked Plaintiff to describe what affected her ability to
work besides her knee and lower back pain.77 Plaintiff asserted a brief, non-specific
response concerning her weight.78 Specifically, Plaintiff stated:
I’d say if I stand for an hour, I’d have to take a break. Something over
an hour, I would definitely have to take a break, just standing all your
71
72
73
74
75
76
77
78
ECF No. 10-4, at 7.
See Diaz, 577 F.3d at 502.
See Rutherford, 399 F.3d at 552.
ECF No. 10-3, at 7.
Diaz, 577 F.3d at 504.
Rutherford, 399 F.3d at 553.
ECF No. 10-3, at 43.
Id. at 44.
- 15 -
weight starts the – you start feeling it, and wherever it hurts, it goes
right to the pain.79
Following Rutherford and Skarbek, Plaintiff’s “generalized response,” without
more, is insufficient to persuade the Court that remand is necessary, especially
when the ALJ has considered the entire record including all medical evidence
provided.80 Plaintiff generally stated that her weight contributes to her pain;
however, she makes neither a specific assertion at the ALJ hearing nor points to
anything additional in her objection to indicate that the ALJ’s failure to specifically
discuss obesity was reversible error.
2.
Pain Disorder
Plaintiff also contends that the ALJ’s failure to acknowledge or discuss Dr.
Masey’s diagnosis of pain disorder was reversible error.81 She argues that such a
failure to discuss her pain disorder undermines step three of the sequential
analysis.82
Plaintiff’s contention, however, is without merit. Rutherford is also
instructive here in that Dr. Masey diagnosed Plaintiff with pain disorder, which
was evidence provided in Dr. Masey’s medical opinion. As the Court discussed in
Rutherford, because doctors – such as Dr. Masey – “must also be viewed as aware”
79
80
81
82
Id.
See Rutherford, 399 F.3d at 553; see also Skarbek, 390 F.3d at 504.
ECF No. 25, at 5.
Id. at 5-6.
- 16 -
of a plaintiff’s condition, an ALJ’s adoption of the doctor’s conclusion “constitutes
a satisfactory if indirect consideration of that condition.”83
While the ALJ did not give Dr. Masey’s diagnosis of pain disorder a more
comprehensive discussion, the ALJ nevertheless evaluated medical evidence as it
pertained to chronic joint pain.84 Indeed, in determining whether Plaintiff has an
impairment that meets one of the listed impairments found in 20 C.F.R. Part 404,
Subpart P, Appendix 1, the ALJ found “no evidence indicating that the [Plaintiff]
has . . . chronic joint pain . . . with signs of limitation of motion or abnormal
motion of the knee . . . resulting in inability to ambulate effectively.”85 The ALJ
further discussed Plaintiff’s allegations of pain in that the medical examinations do
not document Plaintiff experiencing “acute distress” from her pain.86 Any error that
the ALJ committed was harmless because, in considering the entire record, which
the ALJ did here, the ALJ “considered the combined effects of all Plaintiff’s
impairments, severe, and non-severe, throughout the subsequent steps of the
evaluation process. . . .”87
83
84
85
86
87
Rutherford, 399 F.3d at 553.
See ECF No. 10-3, at 11.
ECF No. 10-3, at 11.
ECF No. 10-3, at 15.
Slaughenhoupt v. Comm’r of Soc. Sec. Admin., Civ. No. 15-1345, slip op. at *4 (W.D. Pa.
Dec. 7, 2016).
- 17 -
I find that the ALJ’s conclusions as to Plaintiff’s medically determinable
impairments were harmless error and do not require remand because the ALJ’s
findings were based on substantial evidence.
C.
The ALJ’s failure to address the restrictions found in Dr.
Goodman’s medical opinion was harmless error.
Plaintiff’s final contention distills the ALJ’s findings down to a superficial
reading. While the ALJ found that the Plaintiff “is required to alternate sitting and
standing on an hourly basis,”88 Plaintiff essentially argues that the ALJ’s failure to
include Dr. Goodman’s notation of “must get up as needed” constitutes reversible
error.89
Contrary to Plaintiff’s contention, the Third Circuit does not require an ALJ
in his or her findings to discuss “every tidbit of evidence included in the record.”90
The Plaintiff faults the ALJ for not including five purportedly magic words –
“must get up as needed” – which she believes justify remand.91 In her
determinations, however, the ALJ discussed each of Dr. Goodman’s findings and
articulated what weight she accorded to his medical opinion.92
88
89
90
91
92
ECF No. 10-3, at 11.
See ECF No. 25, at 6; see also ECF No. 10-10, at 7.
Hur v. Barnhart, 94 Fed.Appx. 130, 133 (3d Cir. 2004).
See Ellow v. Astrue, Civ. No. 11-7158, 2013 WL 159919, at *7 (E.D. Pa. Jan. 15, 2013).
See ECF No. 10-3, at 11-15.
- 18 -
The ALJ properly based her findings that the Plaintiff must be permitted to
“alternate sitting and standing on an hourly basis” on substantial evidence.93 It is
not my prerogative to set the ALJ’s decision aside if it is based on substantial
evidence, even if I “would have decided the factual inquiry differently.”94 Merely
because the ALJ did not include those five words in her finding does not support a
claim that she ignored them.95 To do so would be to draw an inference from a
negative. This last contention is without merit.
IV.
CONCLUSION
For the foregoing reasons, I find that the ALJ’s decision to deny Plaintiff
social security benefits was supported by substantial evidence. Accordingly, I find
no reason to disturb Magistrate Judge Mehalchick’s May 3, 2017 Report and
Recommendation, which shall be adopted in full.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
93
94
95
ECF No. 10-3, at 11.
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
See Thompson v. Comm’r of Soc. Sec., Civ. No. 12-4755(NLH), 2013 WL 5476432, at *6 n.3
(D.N.J. Sept. 28, 2013).
- 19 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?