PARE v. COLVIN

Filing 13

OPINION and ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/22/16. (cha)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERRI LYNNE PARE,

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)
)
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)
)
)
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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-119 Erie

AMBROSE, Senior District Judge.
OPINION
and
ORDER OF COURT
SYNOPSIS
Terri Lynne Pare (“Pare”) filed an application for Supplemental Security Income (“SSI”)
on August 19, 2009, alleging a disability beginning on August 1, 2009. Pare bases her claim on,
among other things, diabetes mellitus, bipolar disorder, heart valve problems, and depression.
(R. 22, 262) The claims were denied initially and Pare received a hearing before an ALJ. (R.
128, 154) Pare was represented by counsel at the hearing and a vocational expert testified. (R.
42-81) The ALJ denied Pare’s claim but her request for review filed with the Appeals Council
met with success. The Appeals Council remanded the claim to the ALJ for further consideration.
(R. 149) The ALJ held a second hearing on November 25, 2013 and both Pare and a vocational
expert testified. (R. 82-127) A different ALJ issued a decision on January 8, 2014 denying
Pare’s claim for benefits. (R. 22-34). This appeal follows the Appeals Council’s denial of Pare’s
request for review. (R. 1-4)
Before the Court are Cross-Motions for Summary Judgment. (Docket Nos. [9] and [11]).
Both parties have filed Briefs in Support of their Motions. (Docket Nos. [10] and [12]). After

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careful consideration of the submissions of the parties, and based on my Opinion set forth
below, the ALJ’s decision is affirmed.
I. BACKGROUND
Pare was born on May 24, 1962 and was 49 years old at the time of the first hearing. (R.
47) Pare has a high school diploma and attended one year of nursing school where she
obtained a certificate of nursing. (R. 48) She has past work experience in the nursing field and
in the food service industry (R. 49) Pare currently lives with her adult son in an apartment. (R.
47-48) Although Pare occasionally does some cooking and cleaning, her son primarily does
those things. (R. 71-72) He does all of the lifting and vacuuming as well as the laundry, the
grocery shopping and the garbage. (R. 72) Pare herself does not drive. (R. 67-68)
As stated above, the ALJ concluded that Pare has not been under a disability within the
meaning of the Social Security Act during the relevant period of time. (R. 23-35) Specifically, the
ALJ determined that Pare’s diabetes mellitus, peripheral artery disease, history of mild heart
disease, obesity, degenerative disc disease of the lumbar spine and bipolar disorder constituted
severe impairments, but that those impairments did not meet or medically equal an impairment
listed in Appendix 1, (20 C.F.R. § 416.920(d), 416.925 and 416.926. (R. 25-30) The ALJ further
concluded that Pare had the residual functional capacity to perform light work, with certain
limitations. (R. 30) Specifically, he found Pare to be limited to performing repetitive, unskilled, 23 step tasks that do not require frequent contact with the public, supervisors or co-workers. (R.
30) At the fourth step of the analysis, the ALJ found that Pare had no past relevant work. (R. 33)
However, at the fifth step, the ALJ concluded that Pare retained the residual functional capacity
to perform the jobs of housekeeper and mail room clerk. Consequently, the ALJ denied her
claim. (R. 35)
Pare challenges the ALJ’s decision in several respects. For the reasons set forth below,

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I reject each argument.
II. LEGAL ANALYSIS
A)

Standard of Review

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as Amore than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.@ Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).
Additionally, the Commissioner=s findings of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. '405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A
district court cannot conduct a de novo review of the Commissioner=s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a court is bound by those findings, even if
the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. '404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,

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whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional
capacity. 20 C.F.R. '404.1520. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B)

Discussion
1.

The ALJ’s Alleged Failure to Evaluate Evidence

Pare contends that the ALJ failed to “evaluate pertinent and substantial medical
evidence of record.” See ECF Docket No. [10], p. 13. Specifically, Pare references a medical
source statement prepared by Dr. Michael Tarbox on June 29, 2011.

(R. 597-599) Pare

charges that the ALJ erred in failing to discuss Dr. Tarbox’s opinion.
Pare is correct in maintaining that the ALJ failed to discuss Dr. Tarbox’s medical source
statement. Nevertheless, I find remand unnecessary as his failure in this regard amounts to
harmless error. “The harmless error standard is well-established in our jurisprudence.” Emery v.
Colvin, Civ. No. 14-3373, 2015 WL 4770551 at * 8 (E.D. Pa. Aug. 11, 2015), quoting, Rutherford
v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (refusing to remand where stricter compliance
with social security ruling would not have changed the outcome of the case). “Remand is not

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required if the outcome of the case would be the same.” Emery, 2015 WL 4770551 at * 8, citing,
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (holding that administrative law does not
require the court to remand a case “in quest of a perfect opinion unless there is reason to
believe that the remand might lead to a different result.”) Here, although Dr. Tarbox did opine
that Pare was unable to stand and / or walk at all during an 8 hour workday and placed
restrictions on her ability to lift and carry, those restrictions were premised upon her inability “to
wear shoe” and to “weight bear on right foot” following surgery to her foot. (R. 597-99) It is clear
that this condition resolved itself. The soft tissue mass for which Dr. Tarbox was treating Pare
at the time the report was issued subsequently cleared up. A follow-up visit note from June 14,
2011 indicates that Pare reported doing “very well.” (R. 754, 759) (stating, “[t]he previous
incision on the plantar right foot is completely healed and epithelialized.”) Pare reported less
than 12 months later that she was extremely active and enjoyed walking and biking daily. (R.
759) Simply stated, the foot condition which prompted Dr. Tarbox’s report resolved within 12
months and, as such, cannot constitute a “severe impairment.” See 20 C.F.R. § 416.912(c). Any
failure by the ALJ to discuss the report is, therefore, harmless error. Consequently, remand is
not necessary.
(2)

Duty to Develop the Record

Pare next argues that the “ALJ failed to complete the record with any medical evidence
to show the Plaintiff’s exertional abilities throughout the period of disability, of more than four
years.” See ECF Docket No. [10], p. 15. More specifically, Pare urges that SSR 82-61 compels
the ALJ to re-contact treating sources and / or send Pare for a consultative examination. Pare is
misguided in her contentions. Pare contends that, “the information provided was insufficient for
the ALJ to make a decision, [therefore] the ALJ had the duty to recontact treating sources and /
or send the Plaintiff to a consultative examination.” See ECF Docket No. [10], p. 15. I disagree.
Certainly the agency does have the duty to develop the record in a manner sufficient to

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make a determination of disability. Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995); 20 C.F.R. §
416.912(d).1 Nevertheless, “[a]lthough the Act ‘provides an applicant with assistance to prove
his claim, the ALJ does not have a duty to search for all the relevant evidence available,
because such a requirement would shift the burden of proof.’” Lynn v. Commissioner of Soc.
Sec., Civ. No. 12-1200, 2013 WL 3853460 at * 15 (W.D. P.A. July 24, 2013), quoting, Schwartz
v. Halter, 134 F. Supp.2d 640, 656 (E.D. Pa. 2010). In fact, the regulations place the burden
upon Pare to demonstrate that she is disabled; which means that she has the duty to provide
medical and other evidence showing that she has an impairment(s) and how severe it is. 20
C.F.R. § 416.912(a)-(c).
After careful review of the record, I find that the ALJ did not require additional evidence
in order to reach a decision in this case. The ALJ reviewed a consultative examination prepared
by Dr. Rao Nadella on November 20, 2009. (R. 25, 448-451) As noted by the ALJ, Pare was
found to be “somewhat obese,” but to have regular heart sounds, normal movement of her
extremities, normal neurological examination findings, normal reflexes, and normal gait. (R. 25)
Further, although Dr. Nadella recorded a “[h]istory of diabetes mellitus, bipolar disorder and
depression,” Dr. Nadella did not offer any specific statement as to any work-related functional
limitations. (R. 449, 25) Additionally, the ALJ observed that treatment notes from Smethport
Family Practice indicated that Pare’s pain was managed through medication. (R. 26, 692-705)
The evidence Pare submitted, as was her burden, did not support her claim of disability. It was
not the ALJ’s duty to seek additional evidence to buttress this claim.

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The duty to develop the record is heightened when a claimant appears pro se. Early v. Heckler, 743 F.2d 1002 (3d
Cir. 1984); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). In those cases, an ALJ must “assume a more
active role.” Comiskey v. Astrue, Civ. No. 9-252, 2010 WL 308979 at * 5 (E.D. Pa. Jan. 27, 2010). Such is not the
case here. Pare was represented by an attorney. “When an applicant for social security benefits is represented by
counsel, the ALJ ‘is entitled to assume that he is making his strongest case for benefits.’” Beers v. Colvin, Civ. No.
12-2129, 2014 WL 241514 at * 6 (M.D. Pa. Jan. 22, 2014), quoting, Batts v. Barnhart, 2002 WL 32345745 (E.D.
Pa. March 29, 2002).

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(3)

Mental Health Impairments

Finally, Pare challenges the ALJ’s findings regarding her mental health impairments.
More specifically, Pare urges that the ALJ erred in the weight accorded the opinion of
consultative examiner Dr. Addis.2 I reject Pare’s contention.
It should be noted that the ALJ gave “great weight” to a portion of Dr. Addis’s
assessment. Specifically, the ALJ accepted Dr. Addis’s opinion that Pare did not “seem to have
difficulties in performing daily activities on a sustained basis; she can shop, cook, clean,
maintain a residence and engage in personal care and hygiene.” (R. 31) The ALJ also agreed
with Dr. Addis that Pare “does not demonstrate difficulties in the ability to get along with family,
friends, or neighbors, but might have troubles with co-workers, employers and the general
public.” (R. 31-32) Further, the ALJ found persuasive Dr. Addis’s conclusion that Pare’s mental
condition has not affected her ability to maintain a daily household routine, sustain attention long
enough to do basic tasks, remember appointments independently or complete assignments.”
(R. 32) The ALJ explained that these assessments were consistent with the great weight of the
mental health evidence. What Pare seems to take issue with is ALJ decision to give “little
weight to that portion of Dr. Addis’s assessment that indicates that the claimant has a marginal
ability to sustain attention, follow instructions, relate to others and tolerate pressures because it
is not supported by the evidence of record.” (R. 32).
Pare has not convinced me that the ALJ’s treatment of Addis’s decision was in error. To
be clear, the standard is not whether there is evidence to establish a claimant’s position, which
is what Pare seems to argue, but, rather, is whether there is substantial evidence to support the

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Pare also includes a paragraph asserting that “the ALJ has chosen not to follow the order of the Appeals council
and therefore has not done his job.” See ECF Docket No. [10] p. 19. Pare references the Appeals Council’s Order
remanding the case. That Order was fairly detailed. Pare generically contends that “the ALJ simply did not follow
the Order.” Id., p. 19. To the extent that Pare claims that the ALJ failed to follow a particular mandate of the
Appeals Council regarding evaluation of a mental health impairment, Pare’s argument is so vague and undeveloped
as to preclude review.

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ALJ’s finding. Allen v. Bowen, 881 F.2d 37, 39 (3d. Cir. 1989). Here, substantial evidence of
record does support the ALJ’s position. For instance, Dr. Joseph Kowalski, a state agency
psychologist, reviewed the report prepared by Dr. Addis and concluded that Pare’s impairments
did not preclude her from performing the basic mental demands of competitive work on a
sustained basis. (R. 484) Further, during appointments with Dr. Bazzoui, Dr. Bazzoui reported
that Pare looked “happy” and “motivated,” and felt “emotionally well,” “optimistic” with no signs
of “depression or anxiety.” (R. 503, 504, 506, 507). Her bipolar disorder was noted to be “under
control” and she was described as “stable.” (R. 510) Additionally, during repeated medication
checks Pare stated that she felt “good” or “very good,” she declined changes to her medication”,
she had enjoyed a “pretty good summer,” she was “looking forward to her vacation,” and she
was assessed with GAFs at 51-60, 60, 60, 60, 60, 55-60, 55-60 (R. 739-752) Consequently, I
find that substantial evidence of record supports the ALJ’s findings regarding Pare’s mental
health impairments.

III. CONCLUSION
After a thorough review of the record and careful consideration of Pare’s arguments, I
find that the ALJ’s decision should be affirmed.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERRI LYNNE PARE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-119 Erie

AMBROSE, Senior District Judge.

ORDER OF COURT
Therefore, this 22nd day of February, 2016, it is ordered that Plaintiff’s Motion for
Summary Judgment (Docket No. 9) is denied and Defendant’s Motion for Summary Judgment
(Docket No. 11) is granted.
It is further ordered that the decision of the Commissioner of Social Security is hereby
affirmed.

BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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