KUSHNER v. COLVIN

Filing 15

OPINION and ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 4/30/18. (slh)

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

DANIEL C. KUSHNER,

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

Civil Action No. 17-329

AMBROSE, Senior District Judge
OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
12). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11 and 13). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am granting Defendant’s Motion for Summary Judgment (ECF No. 12) and denying Plaintiff’s
Motion for Summary Judgment. (ECF No. 10).
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying his application for disability insurance benefits pursuant to the Social Security
Act. Plaintiff filed his application alleging he had been disabled since August 1, 2003. (ECF No.
8-7, p. 5). Administrative Law Judge (“ALJ”), David F. Brash, a hearing on July 10, 2015. (ECF
No. 8-3). On August 31, 2015, the ALJ found that Plaintiff was not disabled under the Social
Security Act. (ECF No. 8-2, pp. 14-22).

1Nancy

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

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After exhausting al administrative remedies thereafter, Plaintiff filed this action.

The

parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 10 and 12). The issues are
now ripe for review.
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 “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.
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

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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).
B.

Severe Impairment - Headaches

At step 2 of the analysis, an ALJ must determine whether the claimant has a medically
determinable impairment that is severe. 20 C.F.R. §§416.920(a), 404.1520(a). When an ALJ
finds that a plaintiff suffers from even one severe impairment, the failure to find other impairments
severe is not harmful to the integrity of the analysis because the plaintiff is not denied benefits at
that stage and the ALJ continues with the analysis. 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).

In this case, the ALJ did not find Plaintiff’s alleged

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headaches to be severe: “[t]he claimant’s headaches were considered as part of Cervical
Degenerative Disc Disease.”

(ECF No. 8-2, p. 17).

The ALJ, however, did find other

impairments to be severe, including Plaintiff’s cervical degenerative disc disease. (ECF No. 8-2,
pp. 16-17). Therefore, Plaintiff was not denied benefits at step 2 and the ALJ proceeded beyond
step 2 to determine Plaintiff’s residual functional capacity (“RFC”). (ECF No. 8-2, pp. 17-22).
Plaintiff argues that the ALJ erred in failing to consider Plaintiff’s headaches as a nonexertional impairment instead of a mental impairment because he failed to “sight (sic) any specific
evidence of record or medical finding to support his conclusion.” (ECF No. 11, pp. 4-5). To that
end, Plaintiff suggests that ALJ should have called a medical expert to make this conclusion.2
(ECF No. 11, p. 4). After a review of the record, I disagree. While it is true that the ALJ’s opinion
does not cite to any evidence at the end of that sentence, his opinion must be read in its entirety.
It is evident, that the ALJ made this statement based on the allegation that Plaintiff’s disability is
based on a “cervical injury” that resulted in, inter alia, neck pain and headaches. (ECF No. 8-2,
pp. 16-20; No. 8-8, p. 3; No. 8-3, p. 15). The cervical degenerative disc disease diagnosis was
part of his treating physician’s records and discussed by the ALJ during his residual functional
capacity (“RFC”) 3 discussion. (ECF No. 8-2, pp. 17-20). Plaintiff points to no evidence of

2Plaintiff

cites to SSR 83-20 to support his proposition that the ALJ should have obtained a medical expert
to make his assertion because the headaches could have been the beginning stages of the development
of both the blurred vision and schizophrenia psychosis that were diagnosed after the date last insured.
(ECF No. 11, pp. 4-5). Plaintiff’s reliance on SSR 83-20 is misplaced. SSR 83-20 is relevant to
determine an onset date and provides that a medical advisor is necessary when the onset date must be
inferred. Such is not the case here. In this case, Plaintiff’s own testimony and the records of his treating
physician established the onset date. (ECF No. 8-3, pp. 12, 15; No. 8-19, p. 13; No. 8-18, p. 9). The ALJ
had adequate records to determine the same. Consequently, I find SSR 83-20 does not support
Plaintiff’s position.
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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).

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record to suggest otherwise. See, ECF No. 11. As a result, I find that I am able to make a
meaningful review and the ALJ did not err in this regard.
C.

Residual Functional Capacity

Related to the prior argument, Plaintiff asserts the ALJ failed to properly account for his
headaches as a non-exertional impairment when determining his RFC.4 (ECF No. 11, pp. 5-6).
As set forth above, the ALJ properly considered Plaintiff’s headaches. Furthermore, I find there
is substantial evidence to support the ALJ’s RFC determination. (ECF No. 8-2, pp. 14-22).
Therefore, I find remand is not warranted on this basis.
An appropriate order shall follow.

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ALJ found that Plaintiff has the RFC to perform light work but with certain limitations. (ECF No. 8-2,
pp. 17-20).

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

DANIEL C. KUSHNER,
Plaintiff,
-vsNANCY A. BERRYHILL,5
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-329

AMBROSE, Senior District Judge

ORDER OF COURT
AND now, this 30th day of April, 2018, it is ordered that the decision of the ALJ is affirmed
and Plaintiff’s Motion for Summary Judgment (ECF No. 10) is denied and Defendant’s Motion for
Summary Judgment (ECF No. 12) is granted.

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

5Nancy

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