Bohner v. Berryhill

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CARLA J. BOHNER, :

:

Plaintiff CIVIL ACTION NO. 3:18-0046

:

v.

: (JUDGE MANNION)

ANDREW M. SAUL1,

Commissioner of Social Security, :

Defendant :

M E M O R A N D U M

Pending before the court is the December 4, 2018 report and

recommendation of Judge Schwab, (Doc. 18), recommending that plaintiff’s

appeal from the final decision of the Commissioner of Social Security be

denied, and that the decision of the Commissioner be affirmed. Judge

Schwab reviewed the record in this case pursuant to 42 U.S.C. §405(g) to

determine whether there is substantial evidence to support the

Commissioner’s decision denying the plaintiff’s claim for Disability Insurance

Benefits (“DIB”) under Title II of the Social Security Act, (“Act”). 42 U.S.C.

§§401-433, 1381-1383f. The court has jurisdiction over this appeal pursuant

to 42 U.S.C. §1383(c)(3). The plaintiff, Carla J. Bohner, has filed objections

1Andrew M. Saul was sworn in as Commissioner of Social Security on

June 17, 2019, and is automatically substituted as the defendant in this

action. See Fed.R.Civ.P. 25(d).

to Judge Schwab’s report.” (Doc. 19). The Commissioner responded to

plaintiff's objections on December 28, 2018. (Doc. 20).

For the following reasons, the report and recommendation is ADOPTED

and, plaintiff's appeal of the decision of the Commissioner will be DENIED.

l. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to the

extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010)

(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining

“Plaintiff is represented by counsel in this case. The court notes that

since Judge Schwab stated the full procedural history of this case in her

report and since plaintiff did not object to it, the court will not repeat it herein.

judges should give some review to every Report and Recommendation)).

Nevertheless, whether timely objections are made or not, the district court

may accept, not accept or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local

Rule 72.31.

When reviewing the denial of disability benefits, the court must

determine whether the denial is supported by substantial evidence. Brown v.

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of

social Sec., 529 F.3d 198, 200 (3d Cir. 2008 ). Substantial evidence “does

not mean a large or considerable amount of evidence, but rather such

relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101

L.Ed.2d 490 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999),

Johnson, 529 F.3d at 200. It is less than a preponderance of the evidence but

more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 28 L.Ed.2d 842 (1971 ). If the ALJ's decision is supported by

substantial evidence, the court is “bound by those findings.” Fargnoli v.

Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citation omitted). Furthermore, in

determining if the ALJ's decision is supported by substantial evidence the

court may not parse the record but rather must scrutinize the record as a

whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).

Recently, the Supreme Court in Biestek v. Berryhill, —U.S.—, 139 S.Ct.

1148, 1154 (2019), stated that “the threshold for [ ] evidentiary sufficiency

[substantial-evidence standard] is not high.” “It means—and means

only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. (citation omitted).

To receive disability benefits, the plaintiff must demonstrate an “inability

to engage in any substantial gainful activity by reason of any 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 not less than 12 months.” 42 U.S.C. §432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if

[her] physical or mental impairment or impairments are of such

severity that [she] is not only unable to do [her] previous work but

cannot, considering [her] age, education, and work experience,

engage in any other kind of substantial gainful work which exists

in the national economy, regardless of whether such work exists

in the immediate area in which [she] lives, or whether a specific

job vacancy exists for [her], or whether [she] would be hired if

[she] applied for work. For purposes of the preceding sentence

(with respect to any individual), ‘work which exists in the national

economy’ means work which exists in significant numbers either

in the region where such individual lives or in several regions of

the country.

42 U.S.C. §423(d)(2)(A).

II. RELEVANT MEDICAL EVIDENCE

Judge Schwab’s report and recommendation (“R&R”), as well as the

initial briefs of the parties, contain a thorough review of the plaintiff’s medical

history. The plaintiff did not file any objections to Judge Schwab’s report with

respect to her relevant medical history, so it will be adopted. See Butterfield

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v. Astrue, 2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010) (“To obtain de novo

determination of a magistrate [judge’s] findings by a district court, 28 U.S.C.

§636(b)(1) requires both timely and specific objections to the report.”) (quoting

Goney v. Clark, 749 F.2d 5, 6 (3d Cir.1984)). Also, since the five-step legal

framework for addressing a disability claim was properly stated in the R&R,

(Doc. 18 at 8-9), and the findings of the Administrative Law Judge (“ALJ”) at

each step is in the record, (Tr. 225-234), the court incorporates by reference

these portions of the R&R and the ALJ’s decision.

III. DISCUSSION

On January 22, 2014, the plaintiff filed an application for DIB and

alleged an onset disability date of July 4, 2012. In a March 31, 2016 decision,

the ALJ found that the plaintiff was not disabled from July 4, 2012, through the

date she was last insured, March 31, 2015.3 (Tr. 234). The ALJ found that

plaintiff had severe impairments of seizure disorder and depressive disorder.

However, the ALJ determined that through March 31, 2015, plaintiff did not

have an impairment or combination of impairments that met or medically

equaled the severity of one of the listed impairments.

The plaintiff raises three objections to the R&R. First, she claims that

Judge Schwab erred in her report with respect to her findings that at step-two

3Thus, the relevant time period for this case is July 4, 2012, through

March 31, 2015, the last date that plaintiff meets the insured status

requirements of the Social Security Act.

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the ALJ correctly found that plaintiff’s syncope and bilateral carpal tunnel

syndrome were not severe, and that the ALJ correctly determine plaintiff’s

residual functional capacity (“RFC”). Secondly, plaintiff contends that Judge

Schwab erred by finding that the ALJ properly evaluated the opinion of her

treating physician, Dr. Douglas Charles, and properly afforded his opinion little

weight. Lastly, plaintiff objects to Judge Schwab’s finding that her case should

not be remanded to the Commissioner for consideration of new and material

evidence.4

Initially, the plaintiff contends that the ALJ erred by improperly

determining that her syncope and bilateral carpal tunnel syndrome were not

severe which resulted in an erroneous evaluation of her RFC. Judge Schwab

explains why substantial evidence supports the ALJ’s finding that plaintiff’s

syncope and bilateral carpal tunnel syndrome were not severe. (Doc. 18 at

13-14).

Plaintiff takes issues with the report’s determination that the “close

scrutiny” framework of McCrea v. Comm’r of Soc. Sec., 370 f.3d 357 (3d Cir.

2004), did not apply in reviewing the ALJ’s decision since the ALJ did not

deny plaintiff’s claim for benefits at step two. Rather, the ALJ found that

plaintiff had other severe impairments and then proceeded through the

remaining steps in the sequential-evaluation process.

4In her report, Judge Schwab specified the ALJ’s findings which plaintiff

challenged in her brief as well as her (Judge Schwab’s) reasoning for finding

that substantial evidence supported the ALJ’s findings. As such, the court

does not repeat these discussions herein.

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Since the ALJ identified other severe impairments of plaintiff at step two

and proceeded through the remaining steps of the sequential evaluation

process, the report properly distinguished the McCrea case. “Because the

outcome of a case depends on the demonstration of functional limitations,

where an ALJ identifies at least one severe impairment and ultimately

properly characterizes a claimant’s symptoms and functional limitations, the

failure to identify a condition as severe is deemed harmless error.” Keys v.

Colvin, 2015 WL 1275367 at *11 (M.D.Pa. Mar. 19, 2014) (citing Garcia v.

Comm'r of Soc. Sec., 587 F.App’x 367, 370 (9" Cir. 2014) (citing Lewis v.

Astrue, 498 F.3d 909, 911 (9" Cir. 2007); Burnside v. Colvin, 2015 WL

268791 at *13 (M.D.Pa. Jan. 21, 2015). Thus, “when a plaintiff claims a step

two error based on an ALJ’s failure to properly address an alleged

impairment, the crux of the analysis is whether the ALJ considered the

associated symptoms and functional limitations in his RFC analysis.” O'Toole

v.Berryhill, 2017 WL 1493546 (M.D.Pa. April 26, 2017) (citing Awad v. Colvin,

2015 WL 1811692 at *13 (M.D.Pa. Apr. 21, 2015)).

Based on the medical evidence of record as summarized in the report,

the court finds that the ALJ identified the substantial evidentiary support for

her finding that plaintiffs syncope and bilateral carpal tunnel syndrome were

not severe. (Doc. 9 at 13-14). Further, after the ALJ completed the sequential-

evaluation process, she included all of plaintiff's limitations related to her

severe and non-severe (such as her syncope and bilateral carpal tunnel)

syndrome medical conditions in her RFC determination that were supported

by the medical evidence. (Tr. 229-232). In Ramirez v. Barnhart, 372 F.3d 546

(3d Cir. 2004), the court held that the ALJ’s RFC assessment must

satisfactorily incorporate all of the plaintiff's established limitations. Where the

record “clearly establishe[s] . . . additional, specific deficiencies in

concentration, persistence and/or pace” that c[an] not be accommodated by

a restriction to jobs that require[] only simple tasks, the ALJ is required to

provide a more detailed RFC. See Santiago-Rivera v. Barnhart, 2006 WL

2794189, at*11-12 (E.D.Pa. Sept. 26, 2006); Fargnoli v. Massanari, 247 F.3d

34, 42 (3d Cir. 2001) (the ALJ is required to “consider and evaluate the

[relevant] medical evidence in the record” and, to discuss and weigh this

evidence). See also 20 C.F.R. §416.945(a)(2) (“We will consider all of your

medically determinable impairments of which we are aware, including your

medically determinable impairments which are not ‘severe,’ . . . when we

assess your residual functional capacity”.).

Additionally, as the court in Alvarado v. Colvin, 147 F.Supp.3d 297, 311

(E.D.Pa. 2015), explained:

The step two inquiry is a de minimis screening device used to

dispose of groundless claims. Bowen v. Yuckert, 482 U.S. 137,

107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Additionally, the analysis

at step two is wholly independent of the analysis at later steps.

Accordingly, not finding certain impairments severe at step two

does not affect the ultimate disability determination. Where an

ALJ finds in a claimant’s favor at step two, “even if he ...

erroneously concluded that some of [the claimant’s] other

impairments were non-severe, any error [is] harmless.” Salles v.

Comm'r of Soc. Sec., 229 Fed. Appx. 140, 145 n. 2 (3d Cir.

2007).

Further, under the regulations, in assessing a claimant’s RFC prior to

step four, the ALJ considers the symptoms of all medically determinable

impairments, whether they are found severe or non-severe at step two. See

20 C.F.R. §404.1545.

The court finds that ALJ’s RFC assessment was based upon the

evidence of record as a whole. Thus, any alleged error committed by the ALJ

at the step two analysis was harmless given that she proceeded through the

remaining steps of the sequential evaluation process and made a proper RFC

determination. See O’Toole v.Berryhill, supra.; Wells v. Acting Commissioner

of Social Security, 2016 WL 6824369235, *4 (D.N.J. Nov. 18, 2016) (court

found that failure of ALJ to include plaintiff’s cervical radiculopathy and left

knee post-traumatic arthritis as severe impediments was harmless error

because the ALJ allowed plaintiff's claim to proceed past step two and the

ALJ considered these two conditions in making the RFC determination.).

Therefore, plaintiff’s first objection to Judge Schwab’s report will be

overruled.

Next, the plaintiff contends that Judge Schwab should have found that

the ALJ erred by not giving sufficient weight to the opinion of her treating

physician, Dr. Charles. Plaintiff argues that the ALJ rejected the Medical

Source Statement of Dr. Charles for erroneous reasons. On September 24,

2015, Dr. Charles completed a Medical Source Statement and his relevant

findings are detailed in the R&R. (Doc. 18 at 17-19; Tr. 230, Tr. 1757-59). In

short, Dr. Charles opined that plaintiff’s impairments and limitations would

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affect her ability to work a regular job on a sustained basis. Plaintiff states that

if Dr. Charles’s opinions were accepted, she would have been found to be

disabled. The ALJ afforded little weight to the opinions of Dr. Charles finding

that they were “not well supported on the face of the opinion” and “not well

supported by or consistent with [the doctor’s] own records of the medical

evidence of record as whole.” (Tr. 230). Judge Schwab found that substantial

evidence supported the weight the ALJ afforded to the doctor’s opinions.

Upon de novo review of plaintiff’s objections, the court finds that Judge

Schwab correctly found that the ALJ did not err in evaluating the opinions of

Dr. Charles, and in affording “little weight” to his opinions.

The record, as discussed in the report, supports the ALJ’s findings and

the weight she afforded to Dr. Charles’s opinions. (Tr. 230). In particular,

plaintiff argues that Judge Schwab erred in finding that the ALJ’s conclusion

about the effects of her syncope were supported by the record and

“consistent with Dr. Charles’s statement that [plaintiff] had not experienced

loss of consciousness in over one year.” (Doc. 18 at 17-18, 24). Plaintiff

contends that the ALJ did not rely upon this statement of Dr. Charles and that

it was error for Judge Schwab to base her decision on it.

However, in discussing why plaintiff’s syncope was not severe, the ALJ

did in fact discuss the medical records and how there is no evidence that any

of her non-severe impairments “have met the 12 month durational

requirements for severity” and, how there was “no longitudinal evidence of

objective deficits correlated or attributable to these conditions.” (Tr. 227). The

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ALJ then concluded that “there is no evidence that any of [plaintiff’s non-

severe] conditions have either met the durational requirements ..., or that they

create any specific functional limitations regarding [plaintiff’s] ability to perform

work related activities.” (Id.). As such, Judge Schwab’s reference to Dr.

Charles’s finding that “[plaintiff] had not experienced a full syncopal episode

in over one year” and her statement that even if the ALJ made a mistake

about the cause of plaintiff’s syncope, “[the ALJ’s] findings about the effects

of [plaintiff’s] syncope are both supported by the record and ultimately

consistent with Dr. Charles’s statement that [plaintiff] had not experienced

loss of consciousness in over one year” are in fact part of the ALJ’s reasoning

in determining the weight she gave to Dr. Charles’s opinions.

Additionally, as Judge Schwab’s report makes clear, the ALJ did not

simply afford little weight to Dr. Charles’s opinions based on any one of his

findings. Rather, the ALJ explained in the body of her entire decision why the

medical records of plaintiff did not support the limitations which Dr. Charles

found. The ALJ also noted that Dr. Charles’s own objective findings from

examining plaintiff during the course of his treatment, some of which are

discussed in the report, (Doc. 18 at 23), as well as his own records did not

support the limitations he found. (Tr. 230).

Moreover, with respect to Dr. Charles’s opinions in the Medical Source

Statement that, if accepted by the ALJ, would have resulted in a finding that

the plaintiff was disabled and his opinion that plaintiff was essentially limited

to less than sedentary work, it is well-settled that the finding of whether the

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plaintiff is disabled or unable to work is reserved for the Commissioner. See

Zonak v. Comm’r of Social Sec., 290 Fed.Appx. 493, 497 (3d Cir. 2008).

Additionally, the Third Circuit has long held “forms that ‘require[ ] the physician

only to check boxes and briefly to fill in blanks ... are weak evidence at best.’”

Galette v. Comm’r of Soc. Sec., 708 Fed.Appx. 88, 91 (3d Cir. 2017) (quoting

Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)).

Judge Schwab explained the basis for the ALJ’s findings how she

considered the fact that Dr. Charles’s opinions were not well supported by

other medical evidence in the record. The court finds that Judge Schwab

applied the proper case law and regulations and correctly found that

substantial evidence supported the ALJ’s finding with respect to the weight

she gave to Dr. Charles’s opinions.

Thus, the court finds that the ALJ provided a sufficient explanation as

to why she afforded little weight to the opinions of Dr. Charles. See Fullen v.

Comm’r of Soc. Sec., 705 Fed.Appx. 121, 125 (3d Cir. 2017) (Third Circuit

stated that “Morales v. Apfel requires that ‘the ALJ accord treating physicians’

reports great weight,’ but there is no requirement to accept those opinions if

they are not supported by sufficient evidence in the record.”).

Therefore, plaintiff’s second objection will be overruled since substantial

evidence supports the weight which the ALJ afforded to Dr. Charles’s

opinions.

Finally, plaintiff contends that Judge Schwab should have

recommended that her case be remanded to the Commissioner for

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consideration of new and material evidence, that she obtained and submitted

after the ALJ’s hearing, since it met all of the criteria for remand pursuant to

sentence six of 42 U.S.C. §405(g).5 Plaintiff states that this after acquired

evidence, for which she had good cause for not submitting it earlier, showed

that she “suffered from significant, symptomatic bradycardia requiring a

pacemaker”, and “required an inpatient admission to Reading Hospital from

February 29 through March 3, 2016 for recurrent syncope with collapse,

symptomatic bradycardia, sick sinus syndrome, and uncontrolled diabetes,

with implantation of a dual-chamber pacemaker required.” (Doc. 19 at 8) (Tr.

455-56).

Judge Schwab found that although plaintiff’s new evidence met three

of the four criteria for remand, plaintiff’s case did not warrant a remand to the

Commissioner since there was not a reasonable possibility that its

consideration by the ALJ would have resulted in a different decision on

remand.

Plaintiff argues that her new evidence meets the “reasonable possibility”

standard since “[i]t is certainly reasonably possible that the ALJ would have

come to a different conclusion regarding the severity of [her] syncopal

episodes if [the ALJ] were informed of the actual cause of them and reviewed

5“To succeed with a 42 U.S.C. §405(g) claim, a claimant must show

there is ‘new’ and ‘material’ evidence not presented to the ALJ, and there was

good cause for failing to incorporate the evidence into the record in the prior

proceeding.” Seney v. Colvin, 185 F.Supp.3d 475, 492 (D.De. 2016) (citing

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001)).

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the [new] objective evidence which she found absent from the prior records.”

(Doc. 19 at 9).

The evidence is new since it showed that the cause of plaintiff’s

syncopal episodes was her was previously unknown bradycardia diagnosis

and, it is material since it is relevant and probative regarding her stated

episodes even though its dated about one year after her date-last insured,

i.e., March 31, 2015. There is also good cause for plaintiff’s submission of this

new evidence after the ALJ’s September 9, 2015 hearing and the time to

supplement the record since it was not available to the plaintiff. Judge

Schwab also found that the plaintiff’s new evidence “relates to a diagnosis,

after [plaintiff’s] date-last-insured, of bradycardia later requiring surgery to

implant a pacemaker ... and a hospital admission for recurrent syncope

associated with bradycardia.” However, the Judge found that plaintiff failed to

establish that there was a reasonable possibility that this new evidence would

result in a different outcome of her case if it was remanded.

No doubt that in order to be material, “there [must] be a reasonable

possibility that the new evidence would have changed the outcome of the

[ALJ’s] determination.” Szubak v. Secretary of Health and Human Servs., 745

F.2d 831, 833 (3d Cir. 1984). Further, [a]n implicit materiality requirement is

that the new evidence relate to the time period for which benefits were denied,

and that it not concern evidence of later-acquired disability or of the

subsequent deterioration of the previously non-disabling condition.” Id. Here,

Judge Schwab found that the new evidence did not “provide any insight into

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the ‘severity’ of [plaintiff’s] syncope before her date-last-insured”, and that “the

ALJ fully considered the severity of [plaintiff’s] syncope in her step-two

determination.” Indeed, the ALJ’s decision indicates that when the ALJ found

plaintiff’s syncope was not a severe impairment, she based her finding on the

plaintiff’s cardiac evaluations during the relevant time period which were

reported as “normal.” (Tr. 227). The ALJ also based her finding on plaintiff’s

objective cardiac testing which included tilt table, ECG, ultrasound and

echocardiogram testing, and a loop recorder implant. (Id.). Thus, the ALJ

understood the nature of plaintiff’s syncope in light of her discussion of

plaintiff’s cardiac evaluations when she made her assessment of the severity

of this condition. Also, as discussed, the ALJ based her assessment on the

fact that there was no evidence that plaintiff’s syncope condition met the 12

month durational requirement for severity and, on the record which did not

show that this condition (along with the other non-severe conditions) caused

plaintiff any “functional limitations to her ability to perform work related

activities.” (Id.).

Thus, plaintiff’s objection to Judge Schwab’s finding that a remand of

this case for consideration of new evidence was not warranted will be

overruled since this evidence fails to meet all of the requirements for remand.

IV. CONCLUSION

In light of the foregoing, Judge Schwab’s report and recommendation,

(Doc. 18), is ADOPTED, and plaintiff’s objections, (Doc. 19), are

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OVERRULED. Further, plaintiff’s appeal, (Doc. 1), is DENIED and, the

Commissioner’s decision denying her application for DIB is AFFIRMED. A

separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: September 30, 2019

18-0046-01.wpd

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