The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM BODKINS, Ill,
Plaintiff :
V. : 3:17-CV-00370
: (JUDGE MARIANI)
ANDREW SAUL!',
Defendant :
MEMORANDUM OPINION
On February 28, 2017, Plaintiff William Bodkins, Ill, filed a complaint seeking judicial
review of a final decision made by Defendant Carolyn W. Colvin, Acting Commissioner of
Social Security, denying his application for Social Security Disability benefits. This matter
was referred to Chief Magistrate Judge Schwab to prepare a Report and Recommendation
("R&R"). On September 12, 2018, Chief Magistrate Judge Schwab issued an R&R (Doc.
29) recommending that Plaintiffs request for relief be denied and the Commissioner's final
decision denying Plaintiffs claim be affirmed. Plaintiff filed Objections (Doc. 30) on
September 19, 2018, to which Defendant filed a response (Doc. 31). Upon de novo review
of Chief Magistrate Judge Schwab's R&R, the Court will overrule Plaintiffs Objections and
adopt the pending R&R.
‘ Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g),
Commissioner Andrew Saul is automatically substituted as the named Defendant in place of the former
Commissioner of Social Security.
A District Court may “designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition” of certain matters pending before the Court. 28
U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate
Judge's Report and Recommendation, the District Court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. at § 636(b)(1)(C); see also, Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011); M.D. Pa. Local Rule 72.3.
Here, in response to the pending R&R, Plaintiff filed four objections which this Court
will address in turn.
When reviewing the Commissioner's final decision denying a claimant's application
for Disability Insurance Benefits, a District Court is limited to a deferential review of whether
there is substantial evidence to support the findings of the Commissioner. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Johnson v. Comm’r of Soc. 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, 565 (1988) (quoting Consol. Edison Co.
of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Factual findings which are supported
by substantial evidence must be upheld. Ficca v. Astrue, 901 F.Supp.2d, 533, 536 (M.D.
Pa. 2012) (citing 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)).
Plaintiff first objects to Chief Magistrate Judge Schwab's finding that the
Administrative Law Judge's (“ALJ’s”) determination regarding Plaintiffs 2015 scores was
supported by substantial evidence, as well as the ALJ’s finding that Psychologist William D.
Thomas, MS, was not an acceptable medical source was harmless error. (Doc. 30 at 1-2).
At the outset, the Court finds the ALJ’s determination that Mr. Thomas was not an
acceptable medical source to be harmless error. As Chief Magistrate Judge Schwab found,
the ALJ should have considered Mr. Thomas to be an acceptable medical source. (Doc. 29
at 12). Mr. Thomas is in fact a licensed psychologist, and 40 C.F.R. § 404.1502(a)(2)2
defines acceptable medical sources to include a “licensed or certified psychologist at the
independent practice level.” However, given the totality of the evidence supporting the
ALJ's determination on the severity of Plaintiff's mental impairments, the Court finds this
error to be harmless.
“Ordinary harmless error review, in which the appellant bears the burden to
demonstrate harm, is applicable to administrative appeals.” Holloman v. Comm’r Soc. Sec.,
639 F. App’x 810, 814 (3d Cir. 2016) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
The claimant therefore must “explain [] ... how the ... error to which he points could have
made any difference.” /d. (citing Shinseki, 556 U.S. at 413). Here, Plaintiff failed to
demonstrate how the ALJ’s error in finding that Mr. Thomas was not an acceptable medical
source could have made any difference in the outcome of his case. Further, the ALJ's
2 The R&R mistakenly identified 20 C.F.R. § 404. 1513(a)(2).
ultimate determination regarding Plaintiff's mental impairment was not based solely on his
findings related to Mr. Thomas as a medical source. It is also important to note that even
though the ALJ did not find Mr. Thomas to be an acceptable medical source, he
nonetheless considered Mr. Thomas's opinion regarding Plaintiffs |Q results “to the extent
that it helps understand how an impairment affects the ability to work.” (Doc. 13-2 at 22).
The error to not consider Mr. Thomas an acceptable medical source did not make any
difference in the ALJ's ultimate determination and was therefore harmless.
Plaintiff also argues that the ALJ failed to “adequately explain why the
inconsistencies in the medical evidence and the Plaintiff's own testimony provided
substantial evidence supporting the Administrative Law Judge’s conclusion that the
Plaintiffs 1Q could not have been in the sub 60 range.” (Doc. 30 at 2). When the ALJ
considered Plaintiffs 2015 IQ scores prepared by Mr. Thomas, he found that the scores
were not controlling given the “great deal” of evidence in support of finding that Plaintiff's
intellectual disorder was less limiting than alleged. The ALJ pointed to multiple
inconsistencies in the record to support his finding, such as an October 2014 psychiatric
evaluation, Plaintiffs prior work history, and Plaintiff's own testimony regarding his care for
petition for legal custody of his nephew. (Doc. 13-2 at 16). Thus, the Court finds that the
3 The ALJ pointed to other evidence to support his finding regarding Plaintiffs mental impairment,
including an October 2014 psychiatric evaluation containing no indication of a suspected intellectual
disability, the fact that Plaintiff has been able to sustain work at an unskilled level and understand his job
duties, as well as Plaintiff's testimony that he is currently caring for his nephew and petitioning for legal
custody. (Doc. 13-2 at 16).
ALJ’s determination that Plaintiff's |Q was not necessarily below 60 is supported by
substantial evidence.
Plaintiffs second objection is to Chief Magistrate Judge Schwab's finding that the
ALJ adequately accounted for the Plaintiff's cognitive limitations by limiting the Plaintiff to
simple, routine, repetitive tasks not in a fast-paced work environment and only simple work
decisions. (Doc. 30 at 3-4). More specifically, Plaintiff argues that the ALJ failed to
“adequately explain why someone limited to performing only simple, routine, repetitive tasks
not in a fast-paced work environment and only simple work decisions would still be able to
perform jobs with a reasoning level of 2 defined as the ability to remember and carry out
detailed oral instructions.” (/d). In the R&R, Chief Magistrate Judge Schwab pointed out
that “[t]he Third Circuit and the Middle District of Pennsylvania have acknowledged a
‘growing consensus within this Circuit and elsewhere and elsewhere,’ that ‘[wjorking at a
reasoning level 2 would not contradict the mandate that [ ] work be simple, routine and
repetitive.”” (Doc. 30 at 19) (citing Meloni v. Colvin, 109 F.Supp. 3d 734, 742 (M.D. Pa.
2015) (citing Money v. Barnhart, 91 F.App’x 210, 215 (3d Cir. 2004)). Here, the ALu’s
finding that Plaintiff is limited to simple, routine, repetitive tasks not in a fast-paced work
environment and only simple work decisions adequately accounted for Plaintiff's mental
impairments with numerous citations to evidence of the record.4 Therefore, in light of the
4 As evidence that Plaintiffs mental impairment does not meet or medically equal listing 12.05, the
ALJ cited to Plaintiff's 1991 1Q scores, the fact that Plaintiff has been able to sustain work at an unskilled
level and understand his job duties, an October 2014 psychiatric evaluation containing no indication of a
suspected intellectual disability, Plaintiff's testimony regarding his daily marijuana use up until 2014, as well
prevailing consensus within the Third Circuit regarding working at level two reasoning, the
ALJ’s conclusion that Plaintiff can perform unskilled occupations with a reasoning level of
two is supported by substantial evidence.
Plaintiff's third objection is directed at Chief Magistrate Judge Schwab's footnote
stating that Plaintiffs misrepresentation of the ALJ's wording by replacing “collaboration”
with “contact” in his brief was significant. (Doc. 30 at 4). Chief Magistrate Judge Schwab
merely noted Plaintiff's mistake in misrepresenting the ALJ's language and found this was
“significant” because “collaboration” is defined as “actively working togethering not just
being in physical proximity or having superficial interaction.” (Doc. 29 at 18). In his
objection, Plaintiff argues “[s]ince the word contact implies a lesser degree of interaction,
the word exchange is not significant to the Defendant but only to the Plaintiff.” (Doc. 30 at
4). This objection, even if merited, would have no bearing on whether the ALJ’s findings
were supported by substantial evidence. Even though there is no basis for objection here,
the Court notes that Plaintiff's view of the mistaken wording is incorrect. Based on
consideration of the entire record, the ALJ found Plaintiff “is limited to incidental
collaboration with coworkers and the public and collaboration with a supervisor 30 minutes
per workday.” (Doc. 13-2 at 16-17). By replacing the word “collaboration” with “contact” in
his brief when discussing the work limitations found by the ALJ, Plaintiff seems to suggest
a Pls tesinony fete cure caring for his nephew and petitioning for legal custody. (Doc. 13-
a .
the ALJ found Plaintiff more limited in his interaction with supervisors than what the ALJ
actually determined.
Plaintiff's final objection is that Chief Magistrate Schwab misunderstood Plaintiff's
suggestion that a significant amount of standing and walking in the three occupations
identified by the Vocational Expert could possibly exceed Dr. Khalid’s limitation. (Doc. 30 at
4). Chief Magistrate Judge Schwab interpreted this to mean Plaintiff argued that Dr. Khalid
limited him to a combined five hours of sitting, standing or walking in an eight-hour workday.
(Doc. 29 at 27). Dr. Khalid opined that Plaintiff could stand for up to five hours in an eight-
hour day and walk for up to five hours in an eight-hour day. (Doc. 13-10 at 13). This
opinion, along with numerous other citations to the record, including Plaintiff's own
testimony regarding his symptoms, supported the ALu’s finding that Plaintiff is capable of
performing the standing and walking requirements of the occupations named by the
Vocational Expert. (See Doc. 13-2 at 17-22). In his objection, Plaintiff “simply suggests,”
without citing to any support, that the amount of standing and walking in the three jobs listed
by the Vocational Expert could exceed Dr. Khalid’s limitation. (See Doc. 30 at 4). The
Court finds that substantial evidence supports the ALJ's finding that the jobs named by the
Vocational Expert are consistent with Dr. Khalid’s opinion that Plaintiff can stand for up to
five hours in an eight-hour day and walk for up to five hours in an eight-hour day.
For the above-discussed reasons, the Court will overrule Plaintiffs Objections, adopt
the pending R&R, and affirm the Commissioner of Social Security's final decision. A
separate Order follows.
Coy
Lt Ve A □□
Robert D. Mariani
United States District Judge