BAKER v. BERRYHILL
Filing
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OPINION and ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/21/19. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLY M. BAKER,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 18-346
AMBROSE, Senior District Judge
OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 13 and
15). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 14 and 16). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am denying Plaintiff’s Motion (ECF No. 13) and granting Defendant’s Motion for Summary
Judgment. (ECF No. 15).
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying her applications for supplemental security income and disability insurance
benefits pursuant to the Social Security Act. Plaintiff filed her applications alleging she has been
disabled since December 22, 2011.
(ECF No. 5-11, pp. 2, 4).
Administrative Law Judge
(“ALJ”), Joanna Papzekos, held a hearing on August 5, 2013. (ECF No. 5-5, p. 2-41). On
August 29, 2013, the ALJ issued an unfavorable decision. (ECF No. 5-5, pp. 2-20). Plaintiff
filed an appeal with the Appeals Council and the Appeals Council remanded with specific
instructions. (ECF No. 5-5, pp. 21-25).
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Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.
On September 9, 2015, the ALJ held a hearing. (ECF No. 5-2, pp. 35-51). On February
1, 2016, the ALJ held another hearing. (ECF No. 5-3, pp. 42-76). Following the hearing, the ALJ
sent proposed interrogatories to the vocational expert (“VE”).
(ECF No. 5-14, pp. 11-17).
Counsel objected to the interrogatories and requested a hearing to cross-examine the VE. (ECF
No. 5-14, p. 24).
On June 29, 2016, the ALJ scheduled a hearing for September 19, 2016.
(ECF No. 5-10, p. 2). On June 30, 2016, Plaintiff acknowledged notice of the same but she did
not appear and did not advise the ALJ that she would not attend. Id., at pp. 28-29. As a result,
a show cause request was sent to Plaintiff. (ECF No. 5-10, p. 29). Plaintiff responded on
September 30, 2016, that she did not appear because “my medical conditions prevented me from
attending hearing.” (ECF No. 5-10, p. 32). On January 5, 2017, the ALJ found that Plaintiff was
not disabled under the Act. (ECF No. 5-2, pp. 11-27).
After exhausting all administrative remedies, Plaintiff filed the instant action with this court.
The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 13 and 15). 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
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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
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
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with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.
Step 2 - Severe Impairment
Plaintiff first argues that the ALJ erred in failing to find her left-eye blindness severe. (ECF
No. 14, pp. 12-15). 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. §416.1420(a). The mere existence of a diagnosis or an abnormal reading
does not equate to a severe impairment. Phillips v. Barnhart, 91 Fed. Appx. 775, 780 (3d Cir.
March 10, 2004). To be clear, the question of severity relies not on the particular condition, but
on the limitations stemming from that condition. Id. An impairment is not severe if it does not
significantly limit the physical or mental ability to do basic work activities and/or does not last or
is not expected to last for a continuous period of at least 12 months. 20 C.F.R. §416.920(c),
§416.921(a); §416.909, 42 U.S.C. §423(d). If a claimant is found to have a severe impairment,
then the ALJ proceeds to the next step. 20 C.F.R. §416.920(a).
In this case, the ALJ found that Plaintiff has the following severe impairments:
depression, hernia, status post a number of abdominal surgeries including hernia repair with
mesh, endometriosis, obesity and a history of necrotizing pancreatitis. (ECF No. 5-2, p. 15). In
so doing, the ALJ considered other impairments, including Plaintiff’s monocular vision, and found
them to be non-severe. (ECF No. 5-2, pp. 15-17). The ALJ then proceeded to the next steps.
(ECF No. 5-2, pp. 17-27). Thus, Plaintiff was not denied benefits at step 2. Rather, the ALJ
proceeded beyond step 2. In so doing, the ALJ acknowledged that in making the residual
functional capacity (“RFC”) determination she considered all symptoms. (ECF No. 5-2, p. 19).
Thus, the ALJ proceeded to consider the Plaintiff’s severe and non-severe impairments
(specifically, Plaintiff’s alleged left-eye blindness) in the evaluation process and in determining
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Plaintiff’s RCF. (ECF No. 5-2, pp. 19-25). 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).2
C.
Step 3 - Listing 2.04
Plaintiff argues that the ALJ erred in failing to find that she meets the requirements of
Listing 2.04. (ECF No. 14, pp. 17-19). In step three of the analysis, the ALJ must determine if
the claimant’s impairment meets or is equal to one of the impairments listed in 20 C.F.R., Pt. 404,
Subpt. P, Appx. 1. Jesurum v. v. Secretary of Health and Human Services, 48 F.3d 114, 117 (3d
Cir. 1995). An applicant is per se disabled if the impairment is equivalent to a listed impairment
and, thus, no further analysis is necessary. Burnett v. Commissioner, 220 F.3d 112, 119 (3d Cir.
2000). To be found presumptively disabled, a plaintiff must meet all of the criteria of a Listing.
20 CFR §§404.1525(c)(3), 416.925(c)(3). An impairment that meets only some of the criteria,
“no matter how severely, does not qualify” for a per se disability determination. Sullivan v.
Zebley, 493 U.S. 521, 530 (1990).
At issue in this case is Listing 2.04(B) (loss of visual efficiency). See, 20 C.F.R. pt. 404,
subpt. P, app. 1 §12.05. Listing 2.04(B) Provides, in relevant part:
Loss of visual efficiency, or visual impairment, in the better eye: …(B) A visual
impairment value of 1.00 or greater after best correction (see 2.00A8d).
2Furthermore,
I note that just because an impairment is found to be severe, or in this case non-severe,
does not mean necessarily that it erodes a plaintiff’s residual functional capacity (“RFC”). Franklin v.
Astrue, No. 10-CV-02532-PAB, Civ No. 10-cv-2532, 2012 WL 1059995, at *3 (D. Colo. Mar. 28, 2012)
(“Simply because plaintiff established a ‘severe impairment’ which only ‘requires a de minimis showing of
impairment,’ does not necessarily require that the ALJ conclude that the impairment materially erodes
plaintiff's RFC.”).
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20 C.F.R. pt. 404, subpt. P., app. 1, Listing 2.04(B). 2.00A8d discusses how to determine visual
acuity impairment value, visual field impairment value and visual impairment value.3 20 C.F.R.
pt. 404, subpt. P., app. 1, Listing 2.00A8d.
In this case, the ALJ found that Plaintiff’s vision does not meet or medially equal Listing
2.04(B) because the only treating source record dated May 5, 2012 indicated that she is blind in
one eye and her best correct vision in the other eye is 20/20. (ECF No. 5-2, p. 17). Plaintiff
suggests that the ALJ should have given greater weight to the November 9, 2015 opinion of Dr.
Missry, which indicated a best corrected visual acuity of 20/30 and that “the right field showed 3
of 16 fixation losses with 27% false negative errors. The mean deviation was -19.36. There
were scattered missed points in all four quadrants.” (ECF No. 14, pp. 18-19). The ALJ rejected
the opinion of Dr. Missry because he specifically stated in report that this result was of “relatively
low reliability.” (ECF No. 5-2, p. 17). Contrary to Plaintiff’s assertion, the ALJ did not make up
this assessment. Rather, Dr. Missry stated the “relatively low reliability” directly and specifically
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2.00A8d specifically provides:
8.How do we determine your visual acuity impairment value, visual field impairment value, and
visual impairment value?
a. General. Visual impairment value, a calculated value of your loss of visual function, is the
combination of your visual acuity impairment value and your visual field impairment value.
b. Visual acuity impairment value. Your visual acuity impairment value corresponds to the bestcorrected central visual acuity for distance in your better eye. See Table 2.
c. Visual field impairment value. Your visual field impairment value corresponds to the visual field
in your better eye. Using the MD from acceptable automated static threshold perimetry, we
calculate the visual field impairment value by dividing the absolute value of the MD by 22. For
example, if your MD on an HFA 30-2 is -16, your visual field impairment value is: |-16| / 22 = 0.73.
d. Visual impairment value. Under 2.04B, we calculate the visual impairment value by adding your
visual acuity impairment value (see 2.00A8b) and your visual field impairment value (see
2.00A8c). For example, if your visual acuity impairment value is 0.48 and your visual field
impairment value is 0.73, your visual impairment value is: 0.48 + 0.73 = 1.21.
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in his report. (ECF No. 5-2, p. 17). Thus, I find no merit to this suggestion.
Plaintiff additionally suggests that the ALJ should have obtained further additional
evidence if this evidence was insufficient to fulfill the “ALJ’s duty to fully develop the record to
clarify or replace the unanswered question regarding Plaintiff’s limited visual field.” (ECF No. 14,
p. 18). I disagree. As the ALJ pointed out, “[a] reference to another vision examination from
Visionworks is not in the record. However, in light of the consultative examiner’s current and
valid visual acuity examination and the representative’s assertion that the record is complete, the
undersigned finds that the document is not necessary for a full and fair consideration of the case
(Exhibit B17F).” (ECF No. 5-2, p. 17). Based on the same, I find the ALJ fulfilled his duties in this
regard and remand is not warranted on this issue.
D.
Hypothetical Questions to the VE
Plaintiff also suggests that the ALJ erred by relying on an incomplete hypothetical question
posed to the VE because it did not include moderate limitations in concentration, persistence or
pace which was a finding in the first opinion by the ALJ. (ECF No. 14, pp. 15-17). I disagree. In
this case, the ALJ was not bound by its first opinion. In fact, the Appeals Council vacated the
first opinion and remanded back to the ALJ for a “new decision” in accordance with the rules and
regulations. 4
(ECF No. 5-5, pp. 22-24). That is what happened in this case.
In the new
decision, the ALJ evaluated all the evidence de novo and found that Plaintiff has only mild
difficulties with regard to concentration, persistence or pace. (ECF No. 5-2, p. 18). An ALJ is
required to accept only that testimony from the VE which accurately reflects a plaintiff’s limitations.
See, Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987). The ALJ accepted the VE’s testimony that accurately reflected Plaintiff’s
Contrary to Plaintiff’s argument otherwise, in reevaluating the case de novo on remand, it is not only
appropriate but a requirement that the ALJ reassess all evidence, including medical opinion evidence.
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limitations as set forth in the RFC in the instant decision. Consequently, I find no error in this
regard. Therefore, I find remand is not warranted on this basis.
E.
Due Process
Finally, Plaintiff argues that she was deprived of due process. (ECF No. 14, pp. 19-20).
Specifically, Plaintiff submits that the ALJ failed to provide her with the opportunity to crossexamine the VE thereby depriving her of a full and fair hearing. Id. at p. 19. After a review of
the evidence, I find that Plaintiff was not denied due process.
As set forth above, after the Appeals Council remanded the case, the ALJ held a hearing
on September 9, 2015. (ECF No. 5-2, pp. 35-51). On February 1, 2016, the ALJ held another
hearing. (ECF No. 5-3, pp. 42-76). Following the hearing, the ALJ sent proposed interrogatories
to the VE. (ECF No. 5-14, pp. 11-17). Counsel objected to the interrogatories and requested a
hearing to cross-examine the VE. (ECF No. 5-14, p. 24).
On June 29, 2016, the ALJ scheduled a hearing for September 19, 2016. (ECF No. 510, p. 2). A notice of the date and time for the September 19, 2016 hearing was sent to Plaintiff
stating in bold and large sized letters that it was important for her to attend and indicating that if
she did “not attend the hearing and I do not find good reason, I may dismiss your request for a
hearing. I may do so without giving you further notice.” (ECF No. 5-10, p. 2). The notice also
advised Plaintiff of how to request to appear by telephone if she could not appear in person. Id.
The notice further provided Plaintiff with instruction on what to do if she needed to request a
change of date and/or time. Id., at p. 3. The notice explicitly instructed Plaintiff to call the ALJ’s
office “immediately” if she could not attend the hearing. Id. Contained within the papers sent to
Plaintiff was the letter to the VE requesting his/her attendance at the hearing scheduled for
September 19, 2016. (ECF No. 5-10, p. 25). On June 30, 2016, Plaintiff acknowledged notice
of the same and indicated that she would appear and that if she could not she would notify the
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office by telephone immediately. (ECF No. 5-10, p. 28).
Despite the above, Plaintiff did not appear and did not advise the ALJ that she would not
attend. Id., at p. 29. As a result, a show cause request was sent to Plaintiff. (ECF No. 5-10,
p. 29). The show cause request advised as follows:
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If the ALJ decides you have good reason for missing your hearing, we will schedule
another hearing for you.
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If the ALJ decides you do not have good reason for missing your hearing, and your
representative also did not come to the hearing, the ALJ may dismiss your request
for a hearing.
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If the ALJ decides you do not have good reason for missing your hearing, but your
representative did come to the hearing, the ALJ may decide your case based on
the evidence in your file.
(ECF No. 5-10, p. 29). On September 30, 2016, without further explanation or documentation,
Plaintiff simply responded that she did not appear because “my medical conditions prevented me
from attending hearing.” (ECF No. 5-10, p. 32). On January 5, 2017, the ALJ found that Plaintiff
was not disabled under the Act. (ECF No. 5-2, pp. 11-27).
As demonstrated above, Plaintiff was specifically advised no less than two times what
might occur if she did not attend the hearing and if she did not have a good reason for not
attending the same.
Consequently, I find that Plaintiff’s due process was not violated.
Therefore, I find no error in this regard.
An appropriate order shall follow.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLY M. BAKER,
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Plaintiff,
-vsNANCY A. BERRYHILL,5
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 18-346
AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 21st day of March, 2019, it is ordered that Plaintiff’s Motions for
Summary Judgment (ECF No. 13) is denied and Defendant’s Motion for Summary Judgment
(ECF No. 15) 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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