# HEATH v. COMMISSIONER OF SOCIAL SECURITY

> District Court, E.D. Pennsylvania · March 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10406899

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10406899

## Opinion text

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

____________________________________
:
ANITRA HEATH :
:
v. :
: NO-23-CV-2398 SWR
MARTIN O’MALLEY, :
Commissioner of Social Security :
____________________________________:

O P I N I O N

SCOTT W. REID DATE: March 14, 2024
UNITED STATES MAGISTRATE JUDGE

Anitra Heath brought this action under 42 U.S.C. §405(g) to obtain review of the decision
of the Commissioner of Social Security denying her claim for Disability Insurance Benefits
(“DIB”). She has filed a Request for Review to which the Commissioner has responded. As
explained below, I conclude that her Request for Review should be denied, and judgment entered
in favor of the Commissioner.
I. Factual and Procedural Background
Heath was born on March 2, 1962. Record at 236. She completed high school. Record
at 260. She worked in the past as a receptionist and as a claims processor. Id. On December 8,
2020, Heath filed an application for DIB, asserting disability since September 9, 2019, due to
low back injury, tailbone injury, nerve damage in the left leg, left hip pain, diabetes, high blood
pressure, and acid reflux. Record at 236, 259. She later presented evidence of cervical spine
degeneration and mental distress. Record at 924, 1286-8.
Heath’s application for benefits was denied initially and upon reconsideration. Record at
104, 114. Heath then requested a hearing de novo before an Administrative Law Judge (“ALJ”).
Record at 125.
A hearing was held in this matter on March 22, 2022. Record at 36. On April 29, 2022,

however, the ALJ issued a written decision denying benefits. Record at 18. The Appeals
Council denied Heath’s request for review on May 15, 2023. Record at 1. Heath then filed this
action.
II. Legal Standards
The role of this court on judicial review is to determine whether the Commissioner’s
decision is supported by substantial evidence. 42 U.S.C. §405(g); Richardson v. Perales, 402
U.S. 389 (1971); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence
is relevant evidence which a reasonable mind might deem adequate to support a decision.
Richardson v. Perales, supra, at 401. A reviewing court must also ensure that the ALJ applied
the proper legal standards. Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984); Palmisano v. Saul,

Civ. A. No. 20-1628605, 2021 WL 162805 at *3 (E.D. Pa. Apr. 27, 2021).
To prove disability, a claimant must demonstrate that there is some “medically
determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful
activity’ for a statutory twelve-month period.” 42 U.S.C. §423(d)(1). As explained in the
following agency regulation, each case is evaluated by the Commissioner according to a five-
step process:
(i) At the first step, we consider your work activity, if any. If you are doing substantial
gainful activity, we will find that you are not disabled. (ii) At the second step, we
consider the medical severity of your impairment(s). If you do not have a severe
medically determinable physical or mental impairment that meets the duration
requirement in §404.1590, or a combination of impairments that is severe and meets the
duration requirement, we will find that you are not disabled. (iii) At the third step, we
also consider the medical severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of this subpart and meets the
duration requirement, we will find that you are disabled.

20 C.F.R. §404.1520(4) (references to other regulations omitted).
Before going from the third to the fourth step, the Commissioner will assess a claimant’s
residual functional capacity (“RFC”) based on all the relevant medical and other evidence in the
case record. Id. The RFC assessment reflects the most an individual can still do, despite any
limitations. SSR 96-8p.
The final two steps of the sequential evaluation then follow:
(iv) At the fourth step, we consider our assessment of your residual functional capacity
and your past relevant work. If you can still do your past relevant work, we will find that
you are not disabled. (v) At the fifth and last step, we consider our assessment of your
residual functional capacity and your age, education, and work experience to see if you
can make an adjustment to other work. If you can make the adjustment to other work, we
will find that you are not disabled. If you cannot make an adjustment to other work, we
will find that you are disabled.

Id.
III. The ALJ’s Decision and the Claimant’s Request for Review
In her Decision, the ALJ found that Heath suffered from the severe impairments of
lumbar disc disease, diabetes, residuals of a coccygeal (tailbone) contusion, osteoarthritic
changes in the ankles, and obesity. Record at 21. She specified that Heath’s hypoglycemia,
gastrointestinal issues, and pneumonia were not severe. Id.
The ALJ did not mention Heath’s cervical spine degeneration or her claims of mental
distress, but she added:
[T]he overall evidence of record supports a finding that any other condition not
specifically mentioned in this decision, but that may be mentioned briefly in the record, is
not considered severe. In reviewing the record, special attention was given to the
duration and frequency of medical conditions for which the claimant sought treatment.
Therefore, I find that those impairments that are not specifically mentioned reveal only a
slight abnormality having such minimal effect on an individual that it would not be
expected to interfere with the individual’s ability to work and are, therefore, non-severe.

Record at 21.
The ALJ then found that no impairment, and no combination of impairments, met or
medically equaled a listed impairment. Id. She considered the listing regarding disorders of the
spine resulting in nerve root compromise, and the one regarding spinal stenosis. Record at 21-
22.
As to Heath’s RFC, the ALJ wrote:
After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that
she is limited to never crawling or climbing ladders, ropes and scaffolds; to occasionally
performing all other postural activities; and to no exposure to unprotected heights and
occasional exposure to vibration, machinery, dusts, gases, fumes and pulmonary irritants.

Record at 23.
Relying upon the testimony of a vocational expert who appeared at the hearing, the ALJ
determined at the fourth step of the sequential evaluation that Heath could return to her past
relevant work as a receptionist, an appointment clerk, or a claims processing clerk. Record at 29.
On this basis, she decided that Heath was not disabled. Record at 29-30.
In her Request for Review, Heath maintains that the ALJ erred in failing to find her
cervical spine disc degeneration or her mental health limitations to be severe impairments, or to
consider them as part of her RFC assessment. She also maintains that the ALJ should have
ordered a consultative examination by a mental health expert. Finally, she argues that the
medical evidence disproves the ALJ’s finding that she could engage in light work.
IV. Discussion
A. Heath’s Cervical Spine Degeneration and Mental Complaints
The ALJ mentioned in her review of the evidence that Heath’s “cervical x-rays on May
25, 2016, revealed multilevel spondylotic changes.” Record at 24. She also observed that Heath

presented to her general practitioner, Dr. Steven Schmidt, on October 9, 2018, with neck and
shoulder pain following a car accident, and that she was prescribed muscle relaxants. Id.
However – as Heath complains – she did not find Heath’s cervical spine degeneration to
constitute a severe impairment. Nor did she mention it again in her decision.
Similarly, the ALJ mentioned that, at an October 21, 2021, visit with Dr. Schmidt, Heath
was tearful, and told him she was anxious and depressed due to her physical pain, and that her
memory had diminished. Record at 28. Nevertheless, the ALJ did not find that Heath suffered
from a mental impairment, and did not include mental limitations in her RFC assessment.
The closest the ALJ came to evaluating either of these impairments was in the general
statement, quoted above, that conditions not specifically mentioned in the decision were not

considered severe. Record at 21. Although in some circumstances, this might be considered an
inadequate treatment, even of a non-severe impairment, in this case it is sufficient.
1. Cervical Spinal Disease
As above, objective medical evidence in the form of 2016 x-rays confirms that Heath had
“multilevel spondylotic changes.” Record at 924. Clearly, spinal degeneration does not repair
itself; it could only progress in the years between 2016 and the ALJ’s 2022 decision.
In some cases, the ALJ’s failure to consider this impairment in assessing an RFC would
be problematic. An ALJ must consider the combined effects of both severe and non-severe
impairments in determining an RFC. 20 C.F.R. §404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and
404,1523, when we assess your residual functional capacity”).
Here, however, the record supports the ALJ in concluding that Heath’s cervical spinal

degeneration caused no more than a minimal effect on her ability to work. Record at 21. This
evidence includes the following:
1. Heath did not allege a cervical spine disorder in her application for benefits, despite
enumerating seven other impairments (Record at 236);

2. Upon appealing her initial unfavorable decision, Heath answered “no” when asked on
the appeal form whether she had any new conditions (Record at 294);

3. When Heath was examined by independent medical expert Patrick Frisella, D.O., on
April 27, 2021, she told him about her lower back injury; bulging discs in her lumbar
spine; coccyx injury; pain in her left hip; diabetes; hypertension; asthma; acid reflux; and
pneumonia – she did not mention the disorder of the cervical spine or any limitation in
the neck or arms which could be related to such a disorder, and Dr. Frisella did not note
any relevant limitation on physical examination (Record at 1033-37);

4. As Heath herself sets forth in her Request for Review, when the ALJ asked her why
she could not work, she mentioned an inability to sit and stand; poor concentration; poor
sleep; obesity; and mobility issues. Request for Review at unpaginated p. 6, quoting
Record at 49. She did not mention pain or limitation arising from the cervical spine;

5. Other than the May 25, 2016, x-ray, there is no medical note in the record reflecting
treatment, including physical therapy, for pain or limitations in Heath’s neck or arms, or
any request by her for such treatment.

On this record, it is impossible to say that the ALJ erred in concluding that Heath’s
cervical spine disorder had no more than a minimal effect on her ability to work. There is no
evidence to support a contrary conclusion.
Alternatively, if the ALJ erred, it can be said with great confidence that, based on the
evidence of record, remand to correct the error would not result in a different outcome in this
case. For this reason, any error would be harmless. Rutherford v. Barnhart, 399 F.3d 546, 553
(3d Cir. 2006); and see McGraw v. Commissioner of Soc. Sec., 609 Fed. App’x 113, 116 (3d Cir.

May 1, 2015).
2. Mental Illness
An October 20, 2021, note by Dr. Schmidt, Heath’s general practitioner includes this: “Pt
states she is also feeling more anxious and depressed secondary to pain and has had difficulty
with her memory recently.” Record at 1285. Heath also had positive (i.e., abnormal) results on
depression screening, and Dr. Schmidt accordingly diagnosed her with “Major depressive
disorder, single episode, mild.” Record at 1288.
At her hearing, Heath told the ALJ that she had problems with concentration that
impaired her ability to read, and that she had short-term memory problems which caused her to
forget what she read and to forget people’s names. Record at 58-9. She also testified that her

quality of life was poor, saying: “I don’t feel like I have a life anymore … I’m feeling I’m just
existing.” Record at 60.
The ALJ mentioned in her decision that Heath told Dr. Schmidt she was depressed,
anxious, and feared developing dementia, although she did not mention his depression diagnosis.
Record at 28. She also noted that Dr. Frisella’s mental status screening of Heath was normal.
Record at 27, citing Record at 1036. Thus, she considered Heath’s claim of mental illness to
some extent. However, she imposed no non-exertional limitation in Heath’s RFC assessment,
and she posed no hypothetical questions to the vocational expert including mental limitations.
Record at 61-63.
Nevertheless, as with her cervical spinal impairment, the record evidence would preclude
a finding that Heath suffered from more than minimal mental illness. Heath did not allege a
mental disorder in her application for benefits, either initially or upon reconsideration. Record at
236, 294. Nor did she tell consulting examiner Dr. Frisella that she had a mental impairment or

describe any psychological symptomology. Record at 1031-1049. At Heath’s hearing, her own
lawyer failed to pose a hypothetical question to the vocational expert containing a mental
limitation. Record at 63-4.
Significantly, there is no evidence that Heath had even the most routine of mental health
treatment, whether in the relevant period or prior to it. She told the ALJ that she made a single
appointment with a therapist but forgot to keep it. Record at 51. This might support Heath’s
claim of memory lapses, but it does not support the existence of psychological symptoms severe
enough to motivate her to seek medical help. Nor does the record include other evidence which
might indicate mental instability, such as homelessness, aggressive behavior, or police
involvement.

The only relevant medical evidence in the record is Dr. Frisella’s mental status
examination. As the ALJ noted, it was normal:
The claimant maintains good eye contact. The claimant appears oriented in all spheres.
The claimant shows no evidence of hallucinations and delusions. The claimant shows no
evidence of impaired judgment or significant memory impairment. Affect normal. The
claimant denied suicidal and homicidal ideation.

Record at 1036.
Even Dr. Schmidt, who diagnosed Heath with depression, said her condition was “mild.”
Record at 1288. He did not prescribe any medication to treat it. Record at 1289. He may have
referred Heath for therapy, but, as of Heath’s March 22, 2022, hearing six months later, she had
not obtained it.
Thus, here again, if the ALJ erred in the treatment of Heath’s alleged mental health
issues, her error was harmless under Rutherford, supra. Clearly, remand for further
consideration of the evidence relating to Heath’s mental health would not result in a finding that
she suffered from a psychological impairment severe enough to affect the RFC assessment.

B. The Failure to Order Additional Mental Health Evaluation
As a related matter, Heath argues that the ALJ erred in failing to send her for an
examination by a consulting mental health expert, quoting Plummer v. Apfel, 186 F.3d 422, 433:
“When the record contains evidence of a mental impairment, the [Commissioner] cannot
determine that the claimant is not under a disability without first making every reasonable effort
to ensure that a qualified psychiatrist … has completed the medical portion of the case review
and any applicable residual functional capacity assessment.” Request for Review at unpaginated
p. 13.
Heath concedes that the Commissioner did not make any determination initially or upon
reconsideration concerning her mental impairments because no claim of a mental impairment

was raised before the state agencies. Id. She argues, however, that the ALJ “could have
remanded the matter for further development, including the scheduling of a consultative
examination.” Id.
As the Commissioner points out, however, the decision whether to order a consultative
examination is for the ALJ to make. 20 C.F.R. §404.1519a. The burden is on a plaintiff to
establish that a consultative examination is necessary for the ALJ to make the disability
determination. Harris v. Berryhill, Civ. A. No. 16-6171, 2017 WL 4854110 at *7 (E.D. Pa. Oct.
3, 2017), approved and adopted 2017 WL 4844830 (E.D. Pa. Oct. 25, 2017), citing Thompson v.
Halter, 45 F. App’x 146, 149 (3d Cir. 2002) (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 determination”).
In some cases, the evidence of an impairment presented by a claimant is so suggestive
that an ALJ can be said to have erred by failing to obtain clearer or more conclusive evidence in

order to fulfil her duty to develop the record. This, however, is not one of those cases. As the
review of the evidence set forth above makes clear, Heath came forward with only minimal
evidence.
Further, Heath never asked the ALJ to order a consultative mental health examination or
to help obtain any other evidence relevant to mental health. Under these circumstances, Heath
has not met her burden to establish that a consultative examination was so necessary that the ALJ
erred in failing to order one.
C. The Physical RFC
Finally, Heath argues that the medical evidence of record does not support the ALJ’s
conclusion that she could engage in a limited range of light work. She points to April 23 and

May 21, 2019, treatment notes from Mitchell K. Freedman, D.O., at the Rothman Clinic, who
limited her to four hours of work per day, and lifting no more than ten pounds from waist to
chest. Record at 463, 464-5.
The ALJ discussed the May 21, 2019, note, but wrote: “Dr. Freedman’s opinion is not
persuasive because it was rendered prior to the alleged onset date of disability and does not
reflect the claimant’s limitations throughout the periods at issue.” Record at 28. She also found
the limitations he imposed inconsistent with his examination findings of a slow but stable gait,
and full and pain-free straight leg raise and hip motion, with full strength. Id., and Record at
465.
Even the law cited by Heath reveals the weakness of her argument. She concedes that,
when a conflict in the evidence exists, an ALJ may choose whom to credit, as long as she does
not reject evidence for no reason or for the wrong reason. Request for Review at unnumbered
page 16, citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993). Here, the ALJ gave the

legitimate reason that Dr. Freedman’s opinions were given during a time which was not under
consideration in this case. It could also be noted that Dr. Freedman’s May 21 note was authored
only two months after Heath’s March 12, 2019, accident, in which she fell to the floor, injuring
her coccyx. Record at 557. Naturally, Heath would be particularly limited at that time.
And clearly, the ALJ was presented with a true conflict in the evidence, within the
meaning of Mason. Consulting examiner Dr. Frisella found Heath’s physical examination to be
largely normal. Record at 1035-6. He determined that she could sit, stand, or walk without
limitation, and could lift 20 pounds frequently, and up to 100 pounds occasionally. Record at
1039-40. As with Dr. Freedman, however, the ALJ declined to adopt Dr. Frisella’s RFC
findings, writing that they were “not consistent with the overall evidence that showed the

claimant has a number of different impairments” warranting greater limitations. Record at 28.
The ALJ’s RFC assessment was also more limited than that arrived at by both reviewing
agency physicians, Esther Kim, M.D., and Nghia Van Tran, M.D., who found – like the ALJ –
that Heath could engage in a limited range of light work, but did not order the limitations on
pulling or pushing with the lower extremities which the ALJ imposed. Record at 29, 74-79, 92-
97. However, the ALJ did find Dr. Kim and Dr. Tran’s opinions “partially persuasive.” Record
at 29.
Thus, the ALJ fulfilled her duty under Mason v. Shalala to explain which medical
evidence she accepted and which she rejected, and why. Heath has not shown any error with
respect to the ALJ’s treatment of Dr. Freedman’s evidence.
V. Conclusion

In accordance with the above discussion, I conclude that Heath’s Request for Review in
this case should be denied, and judgment entered in favor of the Commissioner.

BY THE COURT:

/s/ Scott W. Reid
__________________________________
SCOTT W. REID
UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10406899. Public record. Not legal advice.