SHAFFER v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION and ORDER granting in part and denying in part 8 Motion for Summary Judgment; granting in part and denying in part 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 7/6/2015. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TERRY L. SHAFFER,
Plaintiff,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 14-1114
AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. (Docket Nos. 8
and 11). Both parties have filed Briefs in Support of their Motions. (Docket Nos. 9 and 12).
After careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am granting in part and denying in part both motions for summary judgment.
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and for Supplemental Security Income (“SSI”) under
Title XVI of the Act. On or about July 1, 2010, Plaintiff applied for DIB, and on or about July 8,
2010, he applied for SSI. (R. 168, 172-178, 181-184, 203). In both applications, he alleged that
since April 27, 2010, he had been disabled due to myocardial infarction, coronary artery disease,
depression, bipolar disorder, ADD, and arthritis in his hands. (R. 219). His last date insured is
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December 31, 2014. (R. 34, 185-186). The state agency denied his claims initially, and he
requested an administrative hearing.
(R. 80-92).
Administrative Law Judge (“ALJ”) Marty
Pillion held a hearing on October 12, 2011, at which Plaintiff was represented by counsel. (R.
48-76). Plaintiff appeared at the hearing and testified on his own behalf. Id. A vocational
expert also was present at the hearing and testified. (R. 66-76). In a decision dated November
14, 2011, the ALJ found that jobs existed in significant numbers in the national economy that
Plaintiff could perform and, therefore, that Plaintiff was not disabled under the Act. (R. 32-42).
Plaintiff requested review of the ALJ’s determination by the Appeals Council, and, on April 25,
2013, the Appeals Council denied Plaintiff’s request for review. (R. 22-24). Having exhausted
all of his administrative remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 8 and 11).
The issues are now ripe for my review.
II.
A.
LEGAL ANALYSIS
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 “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)). 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.
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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. § 1382(a)(3)(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, 416.920. 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, app. 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, 416.920. 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).
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B.
WHETHER THE ALJ FAILED TO PROPERLY EVALUATE THE OPINIONS OF
PLAINTIFF’S TREATING PHYSICIAN AND CARDIOLOGIST
The ALJ found that Plaintiff had severe impairments, including coronary artery disease
with myocardial infarction status post stenting, mitral regurgitation, left ventricular dysfunction,
asthma, status post right shoulder surgery with bursitis and tear, bipolar disorder, attention deficit
hyperactivity disorder, anxiety disorder, cognitive disorder, mix expressive/receptive disorder,
non-specific white matter disease, and obesity. (R. 34). He further found that Plaintiff had the
residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a), except that he was limited to: occasional stoop, balance, kneel,
crouch, crawl, and climb ramps and stairs; periods of standing not to exceed 30 minutes at one
time; no climbing ropes, ladders, or scaffolds; no exposure to weather, extreme heat or cold,
wetness, humidity, dampness, or atmospheric conditions such as smoke, fumes, odors, gases, or
poor ventilation; simple, routine, repetitive tasks and simple work related decisions; infrequent
changes in work setting defined as no more than one per week; and occasional interaction with
co-workers, supervisors, and the public.
(R. 37).
The ALJ ultimately concluded that
considering Plaintiff’s age, education, work experience, and RFC, there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform and, therefore, that
Plaintiff was not disabled within the meaning of the Act. (R. 41-42).
Plaintiff argues the ALJ’s findings are deficient because he did not appropriately evaluate
the opinions of his treating cardiologist, Dr. Floyd Casaday, M.D., and his treating primary care
physician, Dr. Roberto Turnbull, M.D. Pl.’s Br. [ECF No. 9] at 5-13. After careful review of the
record, applicable regulations, and relevant case law, I disagree.
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
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non-examining source.
20 C.F.R. §§ 404.1527(c)(1); 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. §§
404.1527(c)(2); 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.
Unless a treating
physician’s opinion is given controlling weight, the ALJ must consider all relevant factors that tend
to support or contradict any medical opinions of record, including the patient/physician
relationship; the supportability of the opinion; the consistency of the opinion with the record as a
whole; and the specialization of the provider at issue.
Id. §§ 404.1527(c)(1)-(6);
416.927(c)(1)-(6). “[T]he more consistent an opinion is with the record as a whole, the more
weight [the ALJ generally] will give to that opinion.” Id. §§ 404.1527(c)(4); 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 determinations 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 evidence. Id. Similarly, under 20 C.F.R. § 416.927([c])(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
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record.
Becker v. Comm’r of Social Sec. Admin., 403 F. App’x 679, 686 (3d Cir. 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.”
See 20 C.F.R. §§ 404.1527(d)(1), (3);
416.927(d)(1), (3); Dixon v. Comm’r of Social Security, 183 F. App’x 248, 251-52 (3d Cir. 2006)
(“[O]pinions on disability are not medical opinions and are not given any special significance.”).
Although the ALJ may choose whom 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. Security, 577 F.3d 500,
505 (3d Cir. 2009). The ALJ must provide sufficient explanation of 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). In the present case, I find that the ALJ met this standard.
Plaintiff argues that the ALJ erred in discounting Dr. Turnbull’s opinion set forth in the
Physical Residual Functional Capacity Questionnaire he completed on October 3, 2011, that, due
to his impairments, Plaintiff likely would miss more than four days of work per month. Pl.’s Br.
[ECF No. 9] at 6-11 (citing R. 577-580, Ex. 26F). I disagree. As an initial matter, the ALJ found
that many of the restrictions Dr. Turnbull noted on the October 2011 form were well-supported by
the medical evidence, and he included similar restrictions in his RFC finding. (R. 39) (citing Ex.
26F). The ALJ rejected the portion of Dr. Turnbull’s opinion regarding absences because it was
not supported by the substantial evidence of record or by Dr. Turnbull’s own progress notes, and
it was not consistent with Plaintiff’s activities of daily living. (R. 39). These are appropriate
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reasons for declining to give a treating physician’s opinion little weight. Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999); 20 C.F.R. § 416.927.
Upon review of the record, I find that substantial evidence supports the ALJ’s opinion in
this regard. As the ALJ noted, the evidence indicates that Plaintiff enjoys a wide range of
activities of daily living that are consistent with an individual who is capable of performing
substantial gainful activity. (R. 40-41). Such activities include: living alone in a mobile home,
caring for personal needs independently, driving, paying bills, counting change, managing bank
accounts, watching television, working on the computer, having dinner with friends, talking on the
phone, mowing the lawn with breaks, cleaning, doing laundry, cooking, vacuuming, shopping, and
taking care of his mother who lives next door. (R. 35, 40-41, and Ex. 2E, Testimony). The ALJ
further correctly explained that nothing in Dr. Turnbull’s underlying treatment notes or other record
evidence mentions work absences or suggests that Plaintiff would require the absences indicated
in the doctor’s October 2011 RFC questionnaire.
Plaintiff’s attempt to bolster Dr. Turnbull’s opinion by arguing that the opinion is consistent
with treating cardiologist Floyd Casady’s “opinion of ‘temporary disability’ and New York Heart
Association’s Class II rating” is unpersuasive. Pl.’s Br. [ECF No. 9] at 9. On August 17, 2010,
Dr. Casady noted on an otherwise uncompleted “medical source statement of Plaintiff’s ability to
perform work related physical activities,” that Plaintiff was “temporarily disabled due to
[myocardial infarction]” and that his next appointment was on August 26, 2010. (R. 371-372, Ex.
7F). As set forth above, and as the ALJ correctly explained, the determination of whether an
individual is disabled within the meaning of the Act is an ultimate issue reserved for the
Commissioner. Additionally, as the ALJ also indicated, Dr. Casady’s August 2010 opinion, if
anything, is overshadowed by his subsequent opinion in September 2011 that Plaintiff’s
functioning level was equivalent to “New York Heart Association Class II” (“NYHA Class II”). As
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the ALJ noted in his opinion, NYHA Class II indicates only “slight limitation of physical activity.”
(R. 39).1 Neither of Dr. Casady’s opinions identifies any specific functional limitations due to
Plaintiff’s impairments. (R. 371-372, 571-576, Exs. 7F, 25F).
Because the ALJ adequately explained his reasons for rejecting the opinion of Dr. Turnbull
that Plaintiff would be absent from work four or more times per month, and identified examples of
record evidence inconsistent with and contrary to that opinion, I find no error on this issue.
C.
WHETHER THE ALJ GAVE IMPROPER WEIGHT TO THE OPINIONS
OF THE NON-EXAMINING STATE AGENCY MEDICAL CONSULTANT
Plaintiff argues that the ALJ erred in assigning “great weight” to the September 8, 2010
opinion of non-examining state agency consultant, Nghia Van Tran, M.D. Pl.’s Br. [ECF No. 9] at
12-13. Plaintiff contends that because Dr. Tran is not a cardiologist, did not examine Plaintiff,
and did not have the opportunity to consider Dr. Turnbull or Dr. Casady’s September and October
2011 medical opinions, the ALJ improperly relied on Dr. Tran’s opinions to deny Plaintiff’s claim.
Id. This argument is without merit.
As set forth above, 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 evidence.
Here, the ALJ acknowledged that Dr. Tran was a non-examining physician, but noted that he was
a medical expert who is familiar with agency programs and that his opinions were consistent with
the substantial evidence of record. (R. 39, citing Ex. 10F). Moreover, the ALJ gave Dr. Tran’s
1
According to the American Heart Association, the NYHA Functional Classification is the most commonly
used classification system for heart failure. It places patients in one of four categories based on how much
they are limited during physical activity. Class II is defined as “slight limitation of physical activity.
Comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea (shortness of
breath).” By way of comparison, Class III is defined as “marked limitation of physical activity.
Comfortable at rest. Less than ordinary activity causes fatigue, palpitation, or dyspnea.”
http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-Heart-Failure_U
CM_306328_Article.jsp.
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opinion great weight only insofar as it was consistent with his RFC finding. Id. To the extent
other substantial evidence of record, including treating physician’s records and Plaintiff’s
testimony, supported additional limitations, the ALJ incorporated those limitations into the RFC
finding. Such additional limitations included restrictions on crouching, crawling, and climbing, as
well as numerous environmental restrictions. (R. 37). Finally, it is not material in this case that
Dr. Tran’s opinion predates Dr. Casady’s and Dr. Turnbull’s 2011 opinions. Although an ALJ
generally is required to consider the reports of State agency medical consultants, there is no
requirement that an ALJ must receive an updated report from the State medical experts whenever
new medical evidence is available. See Wilson v. Astrue, 331 F. App’x 917, 919 (3d Cir. 2009)
(citing 20 C.F.R. § 404.1527(e)(2)(i)). This is especially true where, as here, the ALJ reviewed the
subsequent records at issue and specifically discussed them in fashioning Plaintiff’s RFC. See
Jordan v. Astrue, Civil Action No. 08-243 Erie, 2009 WL 2957777, at *7 (W.D. Pa. Sept. 10, 2009)
(citing Wilson, 331 F. App’x at 919). For the reasons set forth above and by the ALJ, even if Dr.
Tran had the benefit of these later records, the records do not support Plaintiff’s argument that he
was incapable of performing substantial gainful activity.2
For all of these reasons and based on the record in this case, I find the ALJ did not err in
weighing the medical opinions at issue in this case. Therefore, remand on this issue is not
warranted.
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Plaintiff additionally argues that the ALJ’s reliance on Plaintiff’s activities of daily living is inconsistent with
Dr. Tran’s opinion that Plaintiff’s daily activities were “significantly limited.” Pl.’s Br. [ECF No. 9] at 12.
This argument is without merit. As an initial matter, Dr. Tran did not find that Plaintiff’s activities were
“significantly limited.” Rather, he stated only that Plaintiff “had described” them as such. (R. 407). Dr.
Tran found that this statement was partially consistent with the limitations indicated by the other evidence in
the case and that, based on the record evidence, Plaintiff’s statements were “partially credible.” Id.
Moreover, the ALJ did not conclude that Plaintiff could engage in daily activities without limitation. Rather,
he found only that Plaintiff’s self-described activities of daily living were consistent with an individual who
was capable of performing some substantial gainful activity and who retained the ability to perform simple,
repetitive, routine job tasks consistent with the RFC. (R. 40-41).
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D.
WHETHER THE ALJ ERRED IN FAILING TO DISCUSS PLAINTIFF’S MIGRAINE
HEADACHES
Plaintiff argues that the ALJ erred as a matter of law by failing to discuss Plaintiff’s
migraine headaches and, in turn, failing to find that those headaches were a “severe
impairment” within the meaning of the Act. Plaintiff contends that the RFC finding thus fails to
include work-related limitations caused by Plaintiff’s headaches. Pl.’s Br. [ECF No. 9] at 14-16.
After careful consideration, I agree in part.
The step-two inquiry into an impairment=s severity Ais 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. ' 404.1521(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. 20 C.F.R. ' 404.1521(b). 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 F.3d at 546; Mays v. Barnhart, 78 F. App=x 808, 811 (3d Cir. 2003);
S.S.R. 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
Typically, an error at step two is harmless where the ALJ finds in the claimant’s favor at
step two and proceeds with the sequential analysis even if he had erroneously concluded that
other impairments were not severe. See Salles v. Comm=r of Soc. Sec., 229 F. App=x 140,
144-45 & n.2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
Where, “on the other hand, the ALJ actually fails to make any finding of severity or non-severity
with respect to an impairment of record – as opposed to an explicit but incorrect finding of
non-severity – the analysis is somewhat more complex.”
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Pailin v. Colvin, Civil Action No.
10-4556, 2013 WL 5924972, at *3 (E.D. Pa. Nov. 5, 2013). It is well-established that although
the ALJ in a social security case may weigh the credibility of the evidence, he must give some
indication of the evidence he rejects and the reasons for rejecting that evidence. See Fargnoli v.
Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
Otherwise, the reviewing court cannot tell if
“significant probative evidence was not credited or simply ignored.” Cotter v. Harris, 642 F.2d
700, 705 (3d Cir. 1981). “Thus, unlike the situation where an ALJ considers evidence of an
impairment and deems that impairment non-severe, an ALJ’s complete disregard of an
impairment at Step Two and in the remaining parts of the sequential analysis can constitute
grounds for remand.” Pailin, 2013 WL 5924972, at *3. This is especially true if the ALJ fails to
consider any limitations caused by the omitted impairment during his RFC assessment. See id.
(citing S.S.R. 96-8p which states that the ALJ must consider limitations and restrictions imposed
by all an individual’s impairments, severe and non-severe, in assessing RFC).
When asked at the hearing to tell the ALJ “in his own words” what prevented him from
working, Plaintiff replied, inter alia, that he “gets headaches all the time.” (R. 55). When his
attorney asked him to elaborate, Plaintiff testified that he usually got a headache two to three
times a week; that the headaches would last a day to two days; that he was unable to “go on about
his life,” read, or watch TV when he had a headache; and that the headaches impacted his mood.
(R. 66). Although the medical evidence is far from extensive, Plaintiff alleges that Dr. Turnbull’s
treatment notes reflect consistent reports of migraines. Pl.’s Br. [ECF No. 9] at 15 (citing R.
562-568). 3
Dr. Casady’s treatment notes also indicate that Plaintiff reported experiencing
migraines 1-2 times per month since childhood. (R. 375).
3
Whether Dr. Turnbull’s treatment notes actually reflect a diagnosis of migraine headaches is questionable
at best. Although it is possible that the often illegible notes list migraines among Plaintiff’s complaints, it
does not appear that the records go on to discuss any headache-related symptoms or limitations or
prescribe any treatments for headaches. Because the ALJ failed to discuss headaches at all in his analysis,
however, I decline to attempt to decipher Dr. Turnbull’s handwritten treatment notes for the first time here.
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As set forth above, the ALJ found that Plaintiff had the following severe impairments:
coronary artery disease with myocardial infarction status post stenting, mitral regurgitation, left
ventricular dysfunction, asthma, status post right shoulder surgery with bursitis and tear, bipolar
disorder, attention deficit hyperactivity disorder, anxiety disorder, cognitive disorder, mix
expressive/receptive disorder, non-specific white matter disease, and obesity. (R. 34). The
ALJ further considered Plaintiff’s allegation of suffering “arthritis of the hands” and held that
because there were not sufficient medical signs or laboratory findings to demonstrate the
existence of arthritis of the hands, that alleged impairment was “not a medically determinable
impairment” within the meaning of the Act. See R. 35 (citing S.S.R. 96-4). It is undisputed that
the ALJ never mentioned headaches in any context in his step two analysis.
Given the references to Plaintiff’s alleged headaches in Plaintiff’s testimony and the
medical records, the ALJ should have at least considered the headaches at step two of his
analysis. Because the ALJ failed to do so, his step two determination is not supported by
substantial evidence. I cannot interpret the ALJ’s silence as a determination that Plaintiff’s
headaches were not a medically determinable impairment or that they were not “severe.” This is
especially true given the fact that the ALJ expressly discussed another alleged condition -arthritis of the hands -- and held that it was not a medically determinable impairment. See, e.g.,
Rupard v. Astrue, 627 F. Supp. 2d 590, 596 (E.D. Pa. 2009) (finding that the ALJ’s silence
regarding plaintiff’s hand impairment could not be interpreted as a determination that the
impairment was not severe, especially where the ALJ expressly determined that Plaintiff’s
depression and alcohol abuse were non-severe); Berrios-Vasquez v. Massanari, No. Civ. A.
00-cv-2713, 2001 WL 868666, at *7 (E.D. Pa. May 10, 2001) (the ALJ should have explicitly
considered evidence of pancreatitis and peripheral neuropathy instead of deciding sub silentio
that the impairments were not severe). The ALJ likewise neither acknowledged nor discussed
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Plaintiff’s allegations of headaches in his RFC analysis or otherwise in his opinion. Thus, the
ALJ’s step two error was not harmless, and remand is required for further consideration of
Plaintiff’s alleged headaches.4
E.
WHETHER THE ALJ IMPROPERLY EVALUATED PLAINTIFF’S CREDIBILITY
Plaintiff also challenges the ALJ’s conclusions regarding Plaintiff’s credibility with respect
to his complaints of pain and other disabling symptoms. Pl’s Br. [ECF No. 9] at 16-19. These
arguments are unpersuasive.
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 must 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 Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014); Reefer v. Barnhart,
326 F.3d 376, 380 (3d Cir.2003).
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.17). Pain alone, however, does not establish a disability. 20 C.F.R. §§
404.1529(a); 416.929(a). Allegations of pain must be consistent with objective medical evidence
4
Although I agree that the ALJ erred in failing to discuss Plaintiff’s headaches, I make no finding as to
whether Plaintiff’s headaches were a “medically determinable impairment” or a “severe impairment,” within
the meaning of the Act, or whether the ALJ’s RFC determination was flawed. These are questions more
properly left for the ALJ to consider on remand.
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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 determining the limits on a claimant’s capacity for work, the ALJ will consider the entire
case record, including evidence from the treating, examining, and consulting physicians;
observations from agency employees; and other factors such as the claimant’s daily activities,
descriptions of 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); S.S.R. 96-7p. The ALJ also will look at
inconsistencies between the claimant’s statements and the evidence presented. 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4). 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 limitations or symptoms
is less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129–30 (3d Cir. 2002).
After my own review of the record, I find that the ALJ followed the proper method to
determine the Plaintiff’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.
38-41).
Indeed, the ALJ directly addressed Plaintiff’s testimony that he experienced various
forms of pain and did not reject his allegations entirely. Rather, the ALJ incorporated numerous
limitations related to Plaintiff’s pain complaints in his RFC finding. See R. 37 (RFC finding
containing limitations on, inter alia, standing, balancing, stooping, kneeling, crouching, crawling,
and climbing). Nevertheless, the ALJ discussed the fact that Plaintiff’s statements concerning
his impairments and their impact on his ability to perform sedentary work activities were
inconsistent with his wide range of activities of daily living, his medical history, his medication
regimen, his work and earnings history, his demeanor at the hearing, and other evidence of
record. (R. 39). With respect to activities of daily living, Plaintiff reported that he was able to live
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alone in a mobile home, care for his personal needs independently, drive a car, pay bills, count
change, manage accounts, watch television, work on the computer, have dinner at friends’
houses, talk on the telephone, mow the lawn with rest breaks, clean, do laundry, cook, and shop.
See id. (citing Ex. 2E).
The ALJ’s analysis of the medical evidence, including Plaintiff’s
medication history and treatment other than medication, also reflects a fairly conservative course
of treatment that does not support a finding of totally disabling symptomology. (R. 40).
The
ALJ further noted that Plaintiff was able to work for 14 years at Wal-Mart without interference from
his mental health symptoms and that he was able to interact and communicate properly at the
hearing without displaying any overt anxiety or inappropriate social behavior.
(R. 36, 38).
Accordingly, I find that substantial evidence supports the ALJ's ruling and his rejection of parts of
Plaintiff’s testimony as not fully credible. See Burns, 312 F.3d at 130.
Plaintiff’s argument that the ALJ failed to favorably consider his long work history is not
fatal to his credibility analysis. The ALJ acknowledged Plaintiff’s 14-year work history in his
opinion and agreed Plaintiff could not perform any past relevant work. (R. 38, 41). As set forth
above, the ALJ did not discount Plaintiff’s testimony regarding his pain and other symptoms in its
entirety. Rather, the ALJ found that testimony partially credible, and, his RFC finding contained
numerous restrictions to accommodate Plaintiff’s subjective complaints of pain and other
symptoms. (R. 36-38). To the extent Plaintiff alleged even greater limitations or symptoms, the
ALJ properly explained and supported why that testimony was not fully credible.
Plaintiff further argues that the ALJ erred by engaging in impermissible “sit and squirm”
jurisprudence when he listed Plaintiff’s “demeanor at the hearing” among his reasons for finding
Plaintiff not fully credible. [ECF No. 9, at 17]. This argument is without merit. The “sit and
squirm” method is employed when an ALJ expects a claimant to behave a certain way at the
hearing and if the claimant fails to manifest the behaviors, the claim is denied. Van Horn v.
15
Schweiker, 717 F.2d 871 (3d Cir. 1983); Facyson v. Barnhart, 94 F. App’x 110, *3 n. 7 (3d Cir.
2004). Here, Plaintiff's demeanor was not the sine qua non of the ALJ's disability determination.
Rather, the ALJ properly considered Plaintiff's demeanor and testimony at the hearing in
conjunction with other evidence in the record in determining whether Plaintiff was fully credible.
See Reefer, 326 F.3d at 380 (“We . . . ordinarily defer to an ALJ’s credibility determination
because he or she has the opportunity at a hearing to assess a witness’s demeanor.”). For these
reasons, I find that the ALJ did not engage in “sit and squirm” jurisprudence, and remand is not
warranted on this basis.
III. CONCLUSION
Under the Social Security regulations, a federal district court reviewing the decision of the
Commissioner denying benefits has three options.
It may affirm the decision, reverse the
decision and award benefits directly to a claimant, or remand the matter to the Commissioner for
further consideration. 42 U.S.C. ' 405(g) (sentence four). In light of an objective review of all
evidence contained in the record, I find that although most aspects of the ALJ’s decision are
supported by substantial evidence, the ALJ failed to address Plaintiff’s testimony and other record
evidence regarding his headaches in step two of his analysis. The case therefore is remanded
for further consideration of this limited issue in light of this Opinion.5 For these and all of the
above reasons, Plaintiff’s Motion for Summary Judgment is granted to the extent set forth herein,
and Defendant’s Motion for Summary Judgment is denied to that same extent. An appropriate
Order follows.
5
If, on remand, the ALJ finds that Plaintiff’s headaches are a medically determinable impairment and/or that
such impairment is “severe,” he also must consider whether and/or how that determination impacts his
evaluation of the medical evidence of record as well as his credibility analysis.
16
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TERRY L. SHAFFER,
Plaintiff,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 14-1114
AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 6th day of July, 2015, after careful consideration of the submissions of the
parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered that it is
ordered that Plaintiff=s Motion for Summary Judgment (Docket No. 8) is GRANTED in part, and
the matter is REMANDED to the Commissioner for further proceedings consistent with the
Opinion attached hereto.
Defendant=s Motion for Summary Judgment (Docket No. 11) is
GRANTED in part and DENIED in part to the extent set forth in the Opinion attached hereto.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
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