FAUSNAUGHT v. BERRYHILL

Filing 14

ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/9/18. (cha)

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

LISA ANNE FAUSNAUGHT,

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Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-36

AMBROSE, Senior District Judge.
OPINION AND ORDER
Background
Plaintiff Lisa Anne Fausnaught (“Fausnaught”) brings this action pursuant to 42
U.SC. § 405(g) for review of the ALJ’s decision denying her claim for a period of
disability and disability insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34. She alleges a disability beginning on January 1, 2012. (R.
136-42) Following a hearing before an ALJ, during which time both Fausnaught and a
vocational expert (“VE”) testified, the ALJ denied her claim. Fausnaught appealed.
Pending are Cross Motions for Summary Judgment. See ECF docket nos. [10] and [12].
Legal Analysis
1. 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

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

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37, 39 (3d Cir. 1989). Substantial evidence has been defined as more 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). Determining whether substantial evidence exists is
“not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.
1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “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).” Id. 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 claimant 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

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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, 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).
2. The ALJ’s Analysis
At step one, the ALJ found that Fausnaught had not engaged in substantial
gainful activity since January 1, 2012, the onset date. (R. 12) At step two, the ALJ
concluded that Fausnaught has the following severe impairments: left knee
osteoarthritis; history of right knee meniscal tear status-post arthroscopy; right ankle
degenerative joint disease status-post open reduction internal fixation; right heel spur;

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hypertension; obesity; major depressive disorder; anxiety disorder; and psychosis. (R.
12) Although the ALJ found reference to other impairments in the record, he determined
that they were non-severe. (R. 13)
At step three, the ALJ concluded that Fausnaught does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpt. P, Appendix 1. The ALJ considered
Fausnaught’s physical impairments under Listings 1.02, 1.00Q, and 3.09. He
considered her mental impairments under Listings 12.03, 12.04, and 12.06. (R. 13-14)
Prior to engaging in step four, the ALJ assessed Fausnaught’s residual functional
capacity (“RFC”).2 He found Fausnaught able to perform a range of sedentary work with
certain restrictions. (R. 14) At step four, the ALJ determined that Fausnaught was
unable to perform past relevant work as a personal care aide because such work was
performed at the medium exertion, semi-skilled level. (R. 19)
Finally, at step five, the ALJ found that, considering Fausnaught’s age,
education, work experience, and RFC, there are significant numbers of jobs in the
national economy that Fausnaught can perform. (R. 19-20) For instance, the ALJ
explained that Fausnaught “will be able to perform the requirements of representative
sedentary unskilled occupations such as an addresser clerk …, pari-mutual ticket
checker …, and document preparer….” (R. 20)
3. Step Two – Urinary Incontinence

“RFC” refers to the most a claimant can still do despite his / her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a).
The assessment must be based upon all of the relevant evidence, including the medical records, medical source
opinions, and the individual’s subjective allegations and description of his / her limitations. 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3). Additionally, a person’s RFC is an administrative finding reserved for the ALJ, not a
medical opinion to be rendered by a doctor. 20 C.F.R. §§ 404.1527, 416.927; 20 C.F.R. §§ 404.1546(c), 416.946(c).
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Fausnaught urges that the ALJ erred at step two of the sequential evaluation
process in determining that her urinary incontinence was non-severe. See ECF docket
no. 11, p. 9-10. I disagree. The step two inquiry into an impairment’s severity “is a de
minimis screening device to dispose of groundless claims.” Newell v. Comm’r. of Soc.
Sec., 347 F.3d 541, 546 (3d Cir. 2003). As set forth in 20 C.F.R. § 404.1522(a), an
impairment or combination of impairments is not severe if it does not significantly limit a
claimant’s physical or mental ability to do basic work activities. The regulations define
basic work activities as the abilities or aptitudes necessary to do most jobs, including
physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying or handling.” 20 C.F.R. § 404.1522(b)3 Thus, an impairment is not severe if the
evidence establishes only a slight abnormality that has no more than a minimal effect on
an individual’s ability to work. Newell, 347 F3d at 546; Mays v. Barnhart, 78 Fed. Appx.
808, 811 (3d Cir. 2003), SSR 85-28. Any doubt as to whether the step-two showing has
been made must be resolved in favor of the claimant. Newell, 347 F.3d at 546-47.
In this case, I agree with the Defendant that substantial evidence of record
supports the ALJ’s finding that Fausnaught’s urinary incontinence is not severe. In this
step-two analysis, the ALJ acknowledged Fausnaught’s testimony of “a longstanding
history of urinary frequency with daily accidents.” (R. 12) Yet he found that the medical
records documented “very limited treatment, noncompliance with recommended
treatment and diagnostic testing, and generally unremarkable clinical and diagnostic
findings.” (R. 12) Imaging studies performed in 2013 did not reveal any evidence of

The regulations list as additional examples, “(2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision,
co-workers and usual work situations; and (6) dealing with changes in a routine work setting.” 20 C.F.R. §
404.1522(b).
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pelvic or abdominal abnormalities. (R. 398) Similarly, a cystogram found no evidence of
bladder leakage during full erect, straining erect, coughing erect, and straining oblique
views. (R. 12, 362-68, 528) Although Fausnaught was prescribed medication, there is
no indication on the record that she complied with recommended pelvic floor restoration
physical therapy. (R. 519-20) Further, Fausnaught informed her physician that urinary
incontinence had been a problem since she was in her 20s. (R. 521) Yet, as the ALJ
noted, “there is no indication that it was a significant impediment to performing work
activity in the past or appreciably worsened during the relevant period.” (R. 13)
In addition, and in any event, the ALJ did not deny Fausnaught’s application for
benefits at step two of the analysis. Rather, the ALJ found in her favor at step two when
he concluded that her knee and ankle impairments, right heel spur, hypertension,
obesity, major depressive disorder, anxiety disorder, and psychosis were severe
impairments. (R. 12-13) The ALJ ruled against Fausnaught after concluding that her
RFC was sufficient to enable her to perform certain work existing in the economy. (R.
19-20) Because the ALJ found in her favor at step two, even if he had erroneously
concluded that her urinary incontinence was not severe, any such error was harmless.
See Salles v. Comm’r. of Soc. Sec., 229 Fed. Appx. 140, 144-45, * n. 2 (3d Cir. 2007),
citing, Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
In short, the ALJ’s finding that Fausnaught’s urinary incontinence is not severe is
supported by substantial evidence of record and / or any error in this regard was
harmless.
4. Medical Opinions

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Fausnaught urges that the ALJ erred by not relying on opinions rendered by Dr.
Sean Su and CRNP Rose Ann Flick. See ECF docket no. 11, p. 11-16. According to
Fausnaught, Dr. Su’s and Flick’s opinions should have been given controlling weight.
The amount of weight accorded to medical opinions is well-established. Generally, the
ALJ will give more weight to the opinion of a source who has examined the claimant
than to a non-examining source. 20 C.F.R. § 416.927(c)(1). In addition, the ALJ
generally will give more weight to opinions from a treating physician, “since these
sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” Id, § 416.927(c)(2). If the ALJ finds that “a
treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence [of]
record,” he must give that opinion controlling weight. Id. Also, “the more consistent an
opinion is with the record as a whole, the more weight [the ALJ generally] will give to
that opinion.” Id, § 416.927(c)(4). In the event of conflicting medical evidence, the Court
of Appeals for the Third Circuit has explained:
“A cardinal principle guiding disability is that the ALJ accord treating physicians’
reports great weight, especially ‘when their opinions reflect expert judgment
based on continuing observation of the patient’s condition over a prolonged
period of time.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, ‘where … the
opinion of a treating physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit” and may reject the treating
physician’s assessment if such rejection is based on contradictory medical
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evidence. Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating
physician is to be given controlling weight only when it is well-supported by
medical evidence and is consistent with other evidence in the record.
Becker v. Comm’r. of Soc. Sec. Admin., Civ. No. 10-2517, 2010 WL 5078238, at * 5 (3d
Cir. Dec. 14, 2010).
The ultimate issue of whether an individual is disabled within the meaning of the
Act is for the Commissioner to decide. Thus, the ALJ is not required to afford special
weight to a statement by a medical source that a claimant is “disabled” or “unable to
work.” 20 C.F.R. § 416.927(d)(1), (3); Dixon v. Comm’r. of Soc. Sec., 183 Fed. Appx.
248, 251-52 (3d Cir. 2006) (stating, “[o]pinions of disability are not medical opinions and
are not given any special significance.”). Although the ALJ may choose who to credit
when faced with a conflict, he “cannot reject evidence for no reason or for the wrong
reason.” Diaz v. Comm’r. of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009). The ALJ must
provide sufficient explanation for his or her final determination to provide a reviewing
court with the benefit of the factual basis underlying the ultimate disability finding. Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). In other words, the ALJ must provide
sufficient discussion to allow the court to determine whether any rejection of potentially
pertinent, relevant evidence was proper. Johnson v. Comm’r. of Soc. Sec., 529 F.3d
198, 203-04 (3d Cir. 2008).
Given this framework, I reject Fausnaught’s contention that the ALJ erred with
respect to his treatment of the medical opinions of record. Dr. Su’s September 2014
opinion is a one page “Physician Verification Form” filed in the Court of Common Pleas
of Erie County, Pennsylvania in connection with a domestic relations support claim. (R.
493) The form amounts to nothing more than a few filled in blanks indicating that
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Fausnaught “has had a medical condition that affects his or her ability to earn income
from: around 1/15/14 through currently.” (R. 493). This does not constitute a “medical
opinion” pursuant to the Regulations. “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and severity of your
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1)
Su’s form contains no mention of Fausnaught’s functional abilities or limitations. There
is simply no explanation of how her impairments impact her ability to function. As such,
it is not a medical opinion entitled to consideration. Further, Su’s conclusion that
Fausnaught is “unable to work” is not entitled to any weight because this issue is
reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(1), (3). Consequently, the
ALJ was not required to specifically reference Dr. Su’s September 2014 report.4 See
Housknecht v. Berryhill, Civ. No. 16-1703, 2017 WL 3911067, * 6 (M.D. Pa. Aug. 4,
2017) (affirming an ALJ’s decision to give “little weight” to a treating physician’s
completion of a form for domestic relations purposes, indicating that the form “was not
an evaluation.”)
Nor am I persuaded that the ALJ erred in affording “little weight” to Flick’s June
2015 opinions. The ALJ explained that he gave them little weight because Flick “failed
to provide supportive objective findings and they are inconsistent with her own
treatment records.” (R. 17) These are appropriate reasons for rejecting Flick’s opinions.
20 C.F.R. § 404.1527(f)(1) The ALJ also explained that Flick is not “an acceptable

It is clear from the ALJ’s opinion that he thoughtfully considered all of Dr. Su’s medical records, indicating that
“[l]ongitudinally, Dr. Su, the treating psychiatrist, consistently reported that the claimant was stable with prescribed
medication that was tolerated well and opined that she had no more than moderate psychological impairment or
difficulty in school, occupational, or social functioning.” (R. 16)
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medical source.” (R. 17) See 2006 WL 2329939 (S.S.A.) The Regulations distinguish
between acceptable medical sources and those who are not, for three reasons:
First, we need evidence from “acceptable medical sources to establish the
existence of a medically determinable impairment. See 20 C.F.R. § 404.1513(a)
and 416.913(a). Second, only “acceptable medical sources” can give us medical
opinions. See 20 C.F.R. § 404.1527(a)(2) and 416.927(a)(2). Third, only
“acceptable medical sources” can be considered treating sources, as defined in
20 C.F.R. § 404.1502 and 416.902, whose medical opinions are entitled to
controlling weight. See 20 C.F.R. 404.1527(d) and 416.927(d).
2006WL 2329939, * 2 Additionally, Flick’s June 2015 opinion is a checkbox form
prepared by Fausnaught’s attorney and lacks any meaningful explanation. “’[C]heck
box’ forms that require little or no explanation ... are ‘weak evidence at best’ in the
disability context….” Hevner v. S.S.A., 675 Fed. Appx. 182, 184 (3d Cir. 2017)
Finally, Fausnaught urges that the ALJ erred in giving great weight to the state
agency physician opinions because they had no history of treating her, no first-hand
knowledge of her conditions, they provide scant reasons for their conclusions, and
because they did not have the benefit of reviewing treatment records and opinions
obtained after September 16, 2013. See ECF docket no. 11, p. 16-17. These arguments
are not compelling. First, it is well established that state agency consultants have
expertise in social security disability evaluations. See Chandler v. Comm’r. of Soc. Sec.,
667 F.3d 356, 361 (3d Cir. 2011) (stating that “state agent opinions merit significant
consideration as well.”) Second, the very nature of non-examining state agency
consultanst as used in this case contemplates that they will offer an opinion after
examining only the records, but not the patient. So a failure to personally examine
Fausnaught does not preclude the ALJ from relying on the physician’s opinion. Third, a
review of the record confirms that the physicians did, in fact, provide reasons supporting
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their conclusions in a manner consistent with the administrative process. (R. 71-82)
Finally, “because state agency review precedes ALJ review, there is always some time
lapse between the consultant’s report and the ALJ hearing and decision. The Social
Security regulations impose no limit on how much time may pass between a report and
the ALJ’s reliance on it. Only where ‘additional medical evidence is received that in the
opinion of the ALJ … may change the State agency medical … consultant’s finding …’
is an update to the report required.” Chandler, 667 F.3d at 361 (citations omitted). Here,
the ALJ had all the records post-dating the state agency consultants’ decisions and
implicitly found that updated reports were not required.
Thus, after fully reviewing the parties’ arguments and the record, I reject
Fausnaught’s contention that the ALJ erred in his assessment of the medical opinions.
5. Complaints of Pain
Lastly, Fausnaught argues that the ALJ erred by improperly evaluating her
complaints of pain and discrediting those complaints. It is well-established that the ALJ
is charged with the responsibility of determining a claimant’s credibility See Baerga v.
Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The ALJ’s decision must “contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and
be sufficiently specific to make clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual’s statements and the reason for that
weight.” S.S.R. 96-7p. Ordinarily, an ALJ’s credibility determination is entitled to great
deference. See Zirsnak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014); Reefer v. Barnhart,
326 F.3d 376, 380 (3d Cir. 2003).

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As the ALJ stated, he must follow a two-step process when assessing pain: first,
he must determine whether there is a medical impairment that could reasonably be
expected to produce the plaintiff’s pain or other symptoms; and, second, he must
evaluate the intensity, persistence, and limiting effects of the plaintiff’s symptoms to
determine the extent to which they limit the plaintiff’s functioning. (R. 15) Pain alone,
however, does not establish disability. 20 C.F.R. § 404.1529(a); 416.929(a). Allegations
of pain must be consistent with objective medical evidence and the ALJ must explain
the reasons for rejecting non-medical testimony. Burnett v. Comm’r. of Soc. Sec., 220
F.3d 112, 121 (3d Cir. 2000).
In evaluating whether a plaintiff’s statements are credible, the ALJ will consider
evidence from treating, examining and consulting physicians; observations from agency
employees; and other factors such as the claimant’s daily activities; descriptions of the
pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects
of medications; treatment other than medication; and other measures used to relieve
the pain. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 96-7p. The ALJ will also look at
inconsistencies between the claimant’s statements and the evidence presented. Id.
Inconsistencies in a claimant’s testimony or daily activities permit an ALJ to conclude
that some or all of the claimant’s testimony about his or her limitations or symptoms is
less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002).
After a review of the record, I find that the ALJ followed the proper method to
determine Fausnaught’s credibility. As laid out in his decision, the ALJ considered the
factors set forth above and adequately explained the reasoning behind his credibility
determinations. (R. 14-19) Indeed, the AL directly addressed Fausnaught’s testimony

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that she experienced various forms of pain and did not reject her allegations entirely.
Rather, the ALJ incorporated numerous limitations related to Fausnaught’s pain
complaints in the RFC finding. See (R. 14) (RFC finding containing limitations on, inter
alia, pushing and pulling with bilateral lower extremities, stooping, climbing, crawling).
Thus, I find that the ALJ properly evaluated Fausnaught’s credibility as required by 20
C.F.R. § 404.1529 and SSR 96-7p. Furthermore, based upon the entire record as a
whole, I find there is substantial evidence to support the ALJ’s decision to find
Fausnaught not entirely credible. (R. 14-19)5 Therefore, I find no error in this regard.
Consequently, remand is not warranted on this basis.
An appropriate order shall follow.

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Fausnaught also contends that the ALJ failed to take note of her long work history. See ECF no. 11, p. 17 (stating
that she “worked for 17 years prior to her disability [and that] this history alone supports a finding that her testimony
is substantially credible.”) Significantly, Fausnaught does not cite to any record evidence in support of this
allegation. In fact, the ALJ explicitly considered Fausnaught’s work history. The ALJ noted that “the record
documents an inconsistent work history with numerous periods of minimal yearly earnings prior to the alleged onset
of disability.” (R. 18, 154)

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

LISA ANNE FAUSNAUGHT
Plaintiff,
-vsNANCY A. BERRYHILL,6
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

)
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Civil Action No. 17-36

AMBROSE, Senior District Judge.

ORDER OF COURT

Therefore, this 9th day of February, 2018, it is hereby ORDERED that the
decision of the ALJ is affirmed. It is further ORDERED that Plaintiff’s Motion for
Summary Judgment (Docket No. 10) is DENIED and Defendant’s Motion for Summary
Judgment (Docket No. 12) is GRANTED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing Carolyn W.
Colvin.

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