THARP v. COLVIN

Filing 21

OPINION and ORDER denying 12 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 9/11/2017. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLY JEAN THARP,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No. 16-1344

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 12 and
16). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 13 and 17). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 12) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 16).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security (ACommissioner@) denying her applications for supplemental security income (“SSI”)
and disability insurance benefits (“DIB”) pursuant to the Social Security Act (AAct@). Plaintiff filed
her applications alleging disability beginning on June 1, 2012.

(ECF No. 10-7, p. 2).

Administrative Law Judge (“ALJ”), Richard Furcolo, held a hearing on July 28, 2015. (ECF No.
10-3). On August 14, 2015, the ALJ found that Plaintiff was not disabled under the Act. (ECF
No. 10-2, pp. 12-24).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 12 and 16).
The issues are now ripe for review.

1

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

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,
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

2

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.

Severe Impairment

At step two of the analysis, an ALJ must determine whether the claimant has a medically
determinable impairment that is severe or a combination of impairments that is severe. 20
C.F.R. §404.1520(a). An impairment is not severe if it does not significantly limit the physical or
mental ability to do basic work activities. 20 C.F.R. §404.1520(c), §404.1521(a). If a claimant is
found to have a severe impairment, then the ALJ proceeds to the next step. 20 C.F.R.
§404.1520(a).
In this case, Plaintiff argues that the ALJ erred in failing to find her mental health
impairments to be severe. (ECF No. 13, pp. 6-8). Although the ALJ did not find her mental
impairments to be severe, the ALJ found that Plaintiff has the following severe impairment:
degenerative disc disease. (ECF No. 10-2, pp. 14-16). So, the ALJ proceeded to the next
steps. (ECF No. 10-2, p. 16). Thus, Plaintiff was not denied benefits at step two.
The ALJ proceeded beyond step two. (ECF No. 10-2, pp. 16-24). In so doing, the ALJ

3

acknowledged that in making the residual functional capacity (“RFC”)2 determination he
considered all symptoms. (ECF No. 10-2, p. 17). Consequently, the ALJ proceeded to consider
the Plaintiff’s severe and non-severe impairments in the evaluation process and in determining
Plaintiff’s RCF. (ECF No. 10-2, pp. 17-24). Therefore, I find any purported error was harmless
such that a remand on this basis is not warranted. Salles v. Commissioner of Social Sec., 229
Fed.Appx. 140, 144-145, n. 2, 2007 WL 1827129 (3d Cir. 2007); Sheeler v. Astrue, No. 08-64J,
2009 WL 789892, 4 -5 (W.D.Pa. March 24, 2009); Hanke v. Astrue, No. 12-2364, 2012 WL
6644201, *4 (7th Cir. Dec. 21, 2012).
Plaintiff also boldly concludes in this section that the ALJ “should have sent Tharp to a
post-hearing psychological consultative examination to accurately assess her mental health
limitations” since the record does not contain a mental RFC assessment. (ECF No. 13, p. 7).
This statement falls woefully short. The decision to order a consultative examination is within
the sound discretion of the ALJ. Thompson v. Halter, 45 Fed.Appx. 146, 149 (3d Cir. 2002); 20
C.F.R. §§ 404.1517, 416.917.

An “ALJ's duty to develop the record does not require a

consultative examination unless the claimant establishes that such an examination is necessary
to enable the ALJ to make the disability decision.” Id. Other circumstances necessitating a
consultative examination include situations where a claimant's medical records do not contain
needed additional evidence, or when the ALJ needs to resolve a conflict, inconsistency or
ambiguity in the record. See, 20 C.F.R. §§404.1519(a), 416.919(a). Based on the existing
medical records in this case, I find the ALJ was not required to order a consultative examination.
The record was sufficient such that the ALJ could make a proper determination. Thus, I find no
error in this regard.

2

RFC stands for residual functional capacity and refers to the most a claimant can still do despite his
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 own limitations. 20 C.F.R. § 416.945(a).

4

C.

Past Relevant Work

Plaintiff next argues that the ALJ’s determination that she could perform her past
relevant work was not supported by substantial evidence. (ECF No. 13, pp. 8-9). In support
thereof, Plaintiff argues the ALJ did not take specific testimony from Plaintiff or the vocational
expert (“VE”) regarding the demands of her past relevant work.

Id.

As a result, Plaintiff

suggests that remand is warranted.
Past relevant work pertains to the particular job or the occupation as performed by a
plaintiff.
The part of the law pertaining to past relevant work provides that as a part of the
requirements for a finding of disability a claimant must have a medically
determinable physical or mental impairment of such severity that he or she is not
able to do his or her previous work. Sections 404.1520(e) and 416.920(e) of the
regulations state as follows:
“Your impairment must prevent you from doing past relevant work. If we cannot
make a decision based on your current work activity or on medical facts alone,
and you have a severe impairment, we then review your residual functional
capacity and the physical and mental demands of the work you have done in the
past. If you can still do this kind of work, we will find that you are not disabled.”
(Underscoring added.)
SSR 82-61. Thus, “a claimant will be found to be ‘not disabled’ when it is determined that he or
she retains the RFC to perform…the actual functional demands and job duties of a particular
past relevant job.” Id.
In finding that an individual has the capacity to perform a past relevant job, the
determination or decision must contain among the findings the following specific
findings of fact:
1.
2.
3.

A finding of fact as to the individual's RFC.
A finding of fact as to the physical and mental demands of the past
job/occupation.
A finding of fact that the individual's RFC would permit a return to his or her
past job or occupation.

SSR 82-62.
In this case, Plaintiff testified that she worked as a dump truck driver, a cashier, a food
worker, a school bus driver and a delivery person. (ECF No. 10-3, pp. 21-25). The ALJ asked

5

Plaintiff the heaviest weight she lifted in those positions. Id. The ALJ also asked the VE the
exertional and skill level associated with Plaintiff’s past relevant work to which the VE
responded. (ECF No. 10-3, pp. 29-32). Additionally, the VE testified that his testimony was
consistent with the Dictionary of Occupational Titles. Id. at p. 32. Thus, based on a review of
the record, I find no merit to Plaintiff’s argument that the ALJ did not take specific testimony from
Plaintiff or the vocational expert (“VE”) regarding the demands of her past relevant work.
Furthermore, the ALJ compared Plaintiff’s RFC with the physical and mental demands of
Plaintiff’s past relevant work and concurred with the VE that Plaintiff was able to perform those
jobs both actually and as generally performed in the national economy. (ECF No. 10-2, pp. 2324). Thus, I find the ALJ’s determination that Plaintiff could perform her past relevant work was
supported by substantial evidence. Therefore, I find no error in this regard.
D.

Credibility

Plaintiff’s final argument is that the ALJ erred in assessing her credibility. (ECF No. 13,
pp. 10-14). To be clear, an ALJ is charged with the responsibility of determining credibility.
Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson, 500 F.2d 309, 312
(3d Cir. 1974), cert. denied, 420 U.S. 931 (1975). The ALJ must consider “the entire case
record” in determining the credibility of an individual’s statement. SSR 96-7p. 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. '416.929(c); SSR 96-7p.
The ALJ will also look at inconsistencies between the claimant's statements and the evidence
presented. Id. I must defer to the ALJ=s credibility determinations, unless they are not supported

6

by substantial evidence.

Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v.

Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975).
In this case, 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. (ECF No. 10-2, pp.
12-24). Thus, I find the ALJ properly evaluated Plaintiff's credibility as required by 20 C.F.R.
'416.929 and SSR 96-7p. Furthermore, based on the entire record as a whole, I find there is
substantial evidence to support the ALJ=s decision to find Plaintiff not entirely credible.
Therefore, I find no error in this regard. Consequently, remand is not warranted on this basis.
An appropriate order shall follow.

7

Id.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLY JEAN THARP,

)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 16-1344

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 11th day of September, 2017, it is ordered that Plaintiff=s Motion for
Summary Judgment (Docket No. 12) is denied and Defendant=s Motion for Summary Judgment
(Docket No. 16) is granted.

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

3

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

8