Bodley v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PENNIE BODLEY, ) CIVIL ACTION NO. 4:20-CV-267

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

ANDREW SAUL, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Pennie L. Bodley, an adult individual who resides within the Middle

District of Pennsylvania, seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for

supplemental security income under Title XVI of the Social Security Act.

Jurisdiction is conferred on this Court pursuant to 42 U.S.C.

§1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference).

This matter is before me, upon consent of the parties pursuant to 28 U.S.C.

§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 10). After

reviewing the parties’ briefs, the Commissioner’s final decision, and the relevant

portions of the certified administrative transcript, I find the Commissioner's final

decision is supported by substantial evidence. Accordingly, the Commissioner’s

final decision is AFFIRMED.

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II. BACKGROUND & PROCEDURAL HISTORY

On February 29, 2009, Plaintiff protectively filed applications for childhood

disability insurance benefits and supplemental security income alleging that she

became disabled on March 1, 1990 when she was four years old. (Admin. Tr. 59;

Doc. 8-3, p. 6). Plaintiff’s first and second applications for benefits were denied at

the initial and ALJ hearing levels. (Admin. Tr. 104, Doc. 8-3, p. 50). On May 30,

2012, the Appeals Council issued a decision. Id. There is no evidence that Plaintiff

appealed to the District Court.

On March 10, 2011, Plaintiff filed an application for supplemental security

income (her third application for benefits) alleging she became disabled on February

14, 2008. (Admin. Tr. 76; Doc. 8-3, p. 22). Plaintiff’s third application for benefits

was denied at the initial and ALJ hearing levels. (Admin. Tr. 104; Doc. 8-3, p. 50).

There is no evidence it was appealed any further. Id.

On February 21, 2013, Plaintiff filed an application for supplemental security

income (her fourth application for benefits) alleging that she became disabled on

February 14, 2008. (Admin. Tr. 91; Doc. 8-3, p. 37). Plaintiff’s fourth application

for benefits was denied at the initial, and ALJ hearing levels. (Admin. Tr. 104; Doc.

8-3, p. 50). It was appealed to the Appeals Council. Id. There is no evidence that

Plaintiff appealed to the District Court.

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On July 28, 2016, Plaintiff filed an application for supplemental security

income (her fifth application for benefits). It was closed at the initial level. Id. There

is no evidence it was appealed. Id.

On April 30, 2017, Plaintiff protectively filed an application for supplemental

security income under Title XVI of the Social Security Act (her sixth application for

benefits). (Admin. Tr. 12; Doc. 8-2, p. 13). In this application, Plaintiff alleged she

became disabled as of June 16, 2016, when she was thirty-one years old, due to the

following conditions: hypothyroidism, depression, degenerative disc disease,

lumbar bulging disc, herniated disc in neck, and colitis. (Admin. Tr. 214; Doc. 8-6,

p. 8). Plaintiff alleges that the combination of these conditions affects her ability to

lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember/memorize,

complete tasks, concentrate, use her hands, and get along with others. (Admin. Tr.

251; Doc. 8-6, p. 45). Plaintiff has a high school education. (Admin. Tr. 21; Doc. 8-

2, p. 22).

On July 26, 2017, Plaintiff’s application was denied at the initial level of

administrative review. (Admin. Tr. 12; Doc. 8-2, p. 13). On August 28, 2017,

Plaintiff requested an administrative hearing. Id.

On September 18, 2018, Plaintiff, assisted by her counsel, appeared and

testified during a hearing before Administrative Law Judge Mike Oleyar (the

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“ALJ”). Id. On December 13, 2018, the ALJ issued a decision denying Plaintiff’s

application for benefits. (Admin. Tr. 22; Doc. 8-2, p. 23). On January 23, 2019,

Plaintiff requested review of the ALJ’s decision by the Appeals Council. (Admin.

Tr. 146; Doc. 8-4, p. 27).

On December 16, 2019, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1; Doc. 8-2, p. 2).

On February 14, 2020, Plaintiff initiated this action by filing a Complaint.

(Doc. 1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the

application is not supported by substantial evidence, and improperly applies the

relevant law and regulations. Id. As relief, Plaintiff requests that the Court award

benefits, or in the alternative remand with instructions to conduct a new

administrative hearing. Id.

On April 17, 2020, the Commissioner filed an Answer. (Doc. 7). In the

Answer, the Commissioner maintains that the decision holding that Plaintiff is not

entitled to disability insurance benefits was made in accordance with the law and

regulations and is supported by substantial evidence. (Doc. 7, ¶ 9). Along with his

Answer, the Commissioner filed a certified transcript of the administrative record.

(Doc. 8).

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Plaintiff’s Brief (Doc. 12) and the Commissioner’s Brief (Doc. 15) have been

filed. Plaintiff did not file a reply. This matter is now ripe for decision.

III. STANDARDS OF REVIEW

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference);

Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue,

901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). 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). Substantial evidence is less than a

preponderance of the evidence but more than a mere scintilla. Richardson v. Perales,

402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if

the ALJ ignores countervailing evidence or fails to resolve a conflict created by the

evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an

adequately developed factual record, substantial evidence may be “something less

than the weight of the evidence, and the possibility of drawing two inconsistent

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conclusions from the evidence does not prevent [the ALJ’s decision] from being

supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S.

607, 620 (1966).

“In determining if the Commissioner’s decision is supported by substantial

evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.

Supp. 2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not

whether Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff

is not disabled is supported by substantial evidence and was reached based upon a

correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417,

2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s

errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v.

Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination

as to the status of a claim requires the correct application of the law to the facts.”);

see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope

of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court

has plenary review of all legal issues . . . .”).

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP

SEQUENTIAL EVALUATION PROCESS

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful activity

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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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see

also 20 C.F.R. § 416.905(a).1 To satisfy this requirement, a claimant must have a

severe physical or mental impairment that makes it impossible to do his or her

previous work or any other substantial gainful activity that exists in the national

economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. § 416.920(a). Under this process,

the ALJ must sequentially determine: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment; (3)

whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant

is able to do any other work, considering his or her age, education, work experience

and residual functional capacity (“RFC”). 20 C.F.R. § 416.920(a)(4).

1 Throughout this Report, I cite to the version of the administrative rulings and

regulations that were in effect on the date the Commissioner’s final decision was

issued. In this case, the ALJ’s decision, which serves as the final decision of the

Commissioner, was issued on December 13, 2018.

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Between steps three and four, the ALJ must also assess a claimant’s RFC.

RFC is defined as “that which an individual is still able to do despite the limitations

caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,

121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 416.920(e); 20 C.F.R. §

416.945(a)(1). In making this assessment, the ALJ considers all the claimant’s

medically determinable impairments, including any non-severe impairments

identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 416.945(a)(2).

At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents

him or her in engaging in any of his or her past relevant work. 2 U.S.C. §

1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §

416.912(a); Mason, 994 F.2d at 1064. Once this burden has been met by the

claimant, it shifts to the Commissioner at step five to show that jobs exist in

significant number in the national economy that the claimant could perform that are

consistent with the claimant’s age, education, work experience and RFC. 20 C.F.R.

§ 416.912(b)(3); Mason, 994 F.2d at 1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

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Thus, to facilitate review of the decision under the substantial evidence standard, the

ALJ's decision must be accompanied by “a clear and satisfactory explication of the

basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts

in the evidence must be resolved and the ALJ must indicate which evidence was

accepted, which evidence was rejected, and the reasons for rejecting certain

evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which

evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).

IV. DISCUSSION

A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION

In his December 2018 decision, the ALJ evaluated Plaintiff’s application at

steps one through five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial gainful

activity at any point between April 30, 2017 (Plaintiff’s application date) and

December 13, 2018 (the date the ALJ decision was issued) (“the relevant period”).

(Admin. Tr. 14; Doc. 8-2, p. 15). At step two, the ALJ found that, during the relevant

period, Plaintiff had the following medically determinable severe impairments: post-

surgical hypothyroidism, history of thyroid cancer and thyroidectomy, history of

vasovagal syncope, cervical and lumbar degenerative disc disease, left hip

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degenerative joint disease, right carpal tunnel syndrome (CTS), right wrist ganglion

cyst partial tear of ulnar surface of triangular fibrocartilage (TFC) status post wrist

arthroscopy, debridement and synovectomy carpal and radiocarpal joint, pinning,

TFC repair and ganglion cyst excision, right ankle degenerative joint disease, right

shoulder derangement and impingement, left rotator cuff syndrome with

impingement and bicipital tendonitis, major depressive disorder, bipolar disorder,

anxiety disorder, and post-traumatic stress disorder. (Admin. Tr. 14; Doc. 8-2, p.

15). The ALJ found that the following impairments were medically determinable but

non-severe: second finger fracture, history of otalgia, temporomandibular joint

disorder, sensorineural hearing loss, history of colitis, history of migraines, and

diabetes mellitus type II. Id. At step three, the ALJ found that, during the relevant

period, Plaintiff did not have an impairment or combination of impairments that met

or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (Admin. Tr. 15; Doc. 8-2, p. 16).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in light

work as defined in 20 C.F.R. § 416.967(b) except Plaintiff could:

Frequently use foot controls with the bilateral lower extremities;

frequent reaching handling, fingering and feeling with right extremity;

frequent reaching with left upper extremity; frequent balancing,

stooping, kneeling, crouching, crawling and climbing on ramps and

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stairs, but never climbing on ladders, ropes or scaffolds; never exposure

to hazards such as unprotected heights and dangerous moving

mechanical parts and operating a motor vehicle; limited to perform

simple routine tasks, but not at a production rate pace (assembly line

work) with occasional changes in the work setting; and limited to

frequent interaction with supervisors, coworkers and the public.

(Admin. Tr. 17; Doc. 8-2, p. 18).

At step four, the ALJ found that, Plaintiff had no past relevant work. (Admin.

Tr. 21; Doc. 8-2, p. 22). At step five, the ALJ found that, considering Plaintiff’s age,

education and work experience, Plaintiff could engage in other work that existed in

the national economy. Id. To support his conclusion, the ALJ relied on testimony

given by a vocational expert during Plaintiff’s administrative hearing and cited the

following three (3) representative occupations: office helper (DOT #239.567-010);

cashier (DOT #211.462-010); and folder (DOT #789.687-066). (Admin. Tr. 22; Doc.

8-2, p. 23).

B. WHETHER THE ALJ PROPERLY EVALUATED THE MEDICAL OPINION

EVIDENCE OF RECORD

Plaintiff argues that the ALJ did not properly evaluate two medical opinions

of record. The first is by a consultative examiner, Dr. Davis. The second is by a

certified physician assistant, PA-C Friese.

The Commissioner’s regulations define a medical opinion as “a statement

from a medical source about what [a claimant] can still do despite [his or her]

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impairment(s) and whether [he or she has] one or more impairment-related

limitations or restrictions in the following abilities”:

(i) [The] ability to perform physical demands of work activities,

such as sitting, standing, walking, lifting, carrying, pushing,

pulling, or other physical functions (including manipulative or

postural functions, such as reaching, handling, stooping, or

crouching);

(ii) [The] ability to perform mental demands of work activities,

such as understanding; remembering; maintaining

concentration, persistence, or pace; carrying out instructions; or

responding appropriately to supervision, co-workers, or work

pressures in a work setting;

(iii) [The] ability to perform other demands of work, such as seeing,

hearing, or using other senses; and

(iv) [The] ability to adapt to environmental conditions, such as

temperature extremes or fumes.

20 C.F.R. § 416.913(a)(2). A “medical source” is “an individual who is licensed as

a healthcare worker by a State and working within the scope of practice permitted

under State of Federal Law, or an individual who is certified by a States as a speech-

language pathologist or a school psychologist and acting within the scope of practice

permitted under State or Federal law.” 20 C.F.R. § 416.902(d). If one medical source

submits multiple medical opinions, and ALJ will articulate how he or she considered

the medical opinions from that medical source in a single analysis. 20 C.F.R.

§ 416.920c(b)(1).

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An ALJ’s consideration of competing medical opinions is guided by the

following factors: the extent to which the medical source’s opinion is supported by

relevant objective medical evidence and explanations presented by the medical

source (supportability); the extent to which the medical source’s opinion is

consistent with the record as a whole (consistency); length of the treatment

relationship between the claimant and the medical source; the frequency of

examination; the purpose of the treatment relationship; the extent of the treatment

relationship; the examining relationship; the specialization of the medical source and

any other factors that tend to support or contradict the opinion. 20 C.F.R.

§ 416.920c(c).

The most important of these factors are the “supportability” of the opinion and

the “consistency” of the opinion. 20 C.F.R. § 416.920c(b)(2). The ALJ will explain

how he or she considered the “supportability” and “consistency” of a medical

source’s opinion. The ALJ may, but is not required to, explain his or her

consideration of the other factors unless there are two equally persuasive medical

opinions about the same issue that are not exactly the same. 20 C.F.R.

§ 404.1520c(b)(3). Unlike prior regulations, under the current regulatory scheme,

when considering medical opinions, an ALJ “will not defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) or prior

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administrative medical finding(s), including those from your medical sources.” 20

C.F.R. § 416.920c(a).

1. Whether the ALJ Properly Evaluated Dr. Davis’s Opinion

About Plaintiff’s Mental Health Limitations

On July 15, 2017, Tommy Davis, Ph.D. (“Dr. Davis”) evaluated Plaintiff’s

mental impairments at the Social Security Administration’s request. As part of this

evaluation, Dr. Davis wrote a narrative report and completed a medical source

statement. (Admin. Tr. 672-679; Doc. 8-9, pp. 140-147).2

In his check-box medical source statement, Dr. Davis was asked to rate

Plaintiff’s ability to perform certain work-related mental activities on the following

scale: none (able to function in this area independently, appropriately, effectively,

and on a sustained basis); mild (functioning in this area independently,

appropriately, effectively, and on a sustained basis is slightly limited); moderate

(functioning in this area independently, appropriately, effectively, and on a sustained

basis is fair); marked (functioning in this area independently, appropriately,

effectively, and on a sustained basis is seriously limited); and extreme (unable to

function in this area independently, appropriately, effectively, and on a sustained

basis). (Admin. Tr. 677; Doc. 8-9, p. 145).

2 Dr. Davis’ report and medical source statement are also reproduced in another

part of the record. (Admin. Tr. 839-846; Doc. 8-11, pp. 44-51).

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Dr. Davis assessed that Plaintiff had a “marked” limitations in her ability to:

make judgments on complex work-related decisions; and respond appropriately to

usual work situations and changes in a routine work setting. Dr. Davis found that

Plaintiff had “moderate” limitations in the following activities: understanding and

remembering complex instructions; carrying out complex instructions; and

interacting appropriately with the public, supervisors, and co-workers. Dr. Davis

found that Plaintiff had mild limitations in her ability to: understand and remember

simple instructions; carry out simple instructions; and make judgments on simple

work-related decisions. Dr. Davis provided the following explanation in support of

his findings:

The claimant exhibits significant depressive and anxiety symptoms that

impair her ability to make judgments on complex work-related

decisions.

. . . .

The claimant’s anxiety and depressive symptoms [illegible word]

impair her ability to manage the social complexities of work [illegible

word]

(Admin. Tr. 677-678; Doc. 8-9, pp. 145-146).

In his decision, the ALJ found that the marked limitations in Dr. Davis’

opinion were not persuasive, but that the mild to moderate limitations were entitled

to partial weight. In doing so, he explained:

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In June 2017, Dr. Davis opined that the claimant had generally mild to

moderate functional limitations due to her impairments, but marked

functional limitations with respect to ability to make judgments on

complex work-related decisions and respond appropriately to usual

work situations and to changes in a routine work setting. (Exhibits

D14F; D21F/48-50) This assessment has been considered, but not

found persuasive with respect to the finding of marked functional

limitations and partial weight with respect to the finding of mild to

moderate functional limitations. As discussed above, the mental status

examination findings throughout the record, including Dr. Davis’

assessment, generally showed mild to benign findings and fails to

support more than a finding of moderate functional limitations.

Notably, there is no indication in the record that the claimant has be

psychiatrically hospitalized or requires a structured living arrangement

during the relevant period and the record shows that her symptoms are

stable on medication.

(Admin. Tr. 20; Doc. 8-2, p. 21).

Plaintiff argues:

13. Additionally, the Psychological Evaluator for the Social Security

Administration found that the Plaintiff was markedly limited in her

ability to make judgments on complex work related decisions and

markedly limited in her ability to respond appropriately to the usual

work situations and to changes in a routine work setting.

14. The Opinion of the Administrative Law Judge on Page 9, paragraph

3 of the Notice of Decision – Unfavorable, dated December 13, 2018,

accepted the mild and moderate limitations of Dr. Davis but rejected

the marked limitations without adequate cause only indicating that

“there is no indication in the record that the claimant had been

psychiatrically hospitalized or required a structured living arrangement

during the relevant period and the record shows that her symptoms are

stable on medication.”

15. In fact, psychiatric hospitalization and the requirement of a

structured living arrangement would be strong evidence of extreme

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limitations and it is possible to be markedly limited without those

requirements and those were the only two (2) reasons the

Administrative Law Judge gave in support of discounting the testimony

of Dr. Davis, again an evaluator employed by the Social Security

Administration in this matter. In addition, the Plaintiff was actually

found to have a number of mental health diagnosis which constitute a

severe impairment including major depressive disorder, bipolar

disorder, anxiety disorder and post-traumatic stress disorder, all of

which diagnosis’s when found to be severe impairments by the

Administrative Law Judge justify a marked finding of limitations as

made by Dr. Davis.

(Doc. 12, pp. 6-8).

In response, the Commissioner argues:

Contrary to Plaintiff’s assertion at pages 6-7 of her brief, substantial

evidence supports the ALJ’s finding that Dr. Davis’s marked

limitations were not persuasive. The ALJ correctly applied the new

regulatory framework in evaluating Dr. Davis’s marked limitations,

(Tr. 20), and reasonably explained that the marked limitations were not

persuasive because they were inconsistent with the record evidence (Tr.

20). Specifically, the ALJ noted that Dr. Davis’s own mental status

examination documented largely benign findings (Tr. 20). Indeed, other

than an anxious mood and restricted affect, Dr. Davis’s examination

revealed that Plaintiff was alert and oriented to person, place, and time;

cooperative and well groomed; had fair social skills and appropriate eye

contact; normal motor behavior; fluent speech; adequate expressive and

receptive language; coherent and goal directed through processes; no

hallucinations or delusion; clear sensorium; and intact attention and

concentration (Tr. 674). Plaintiff could count to 10; perform simple

calculations; count to 20 by three; count to 100 by 7s; repeat three out

of three objects immediately and two out of three after five minutes and

repeat four digits forward and three backward (Tr. 675).

In addition to Dr. Davis’s examination findings, the ALJ also

explained that other mental status examinations likewise documented

only mild findings and no more than moderate limitations (Tr. 20).

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Plaintiff was consistently assessed as being alert and oriented x3;

having normal speech and language; intact recent and remote memory;

and normal attention and concentration (Tr. 361, 381, 728). Plaintiff

did not even seek mental health treatment until May 2017, and a mental

status examination at that time revealed that she was cooperative and

had good rapport; made good eye contact; had organized and goal-

directed thought processes; normal thought content; no hallucinations

or ideations; intact memory and concentration; fair insight and

judgment; and good capacity for activities of daily living (Tr. 849).

Plaintiff’s anxious mood responded well to Lexparo, and, within two

months, she reported doing “much better” (Tr. 855). The ALJ also

noted that Plaintiff did not require psychiatric hospitalization and that

her symptoms were stable on medication (Tr. 20).

Moreover, Dr. Urbanowicz, the state agency psychologist, explained

that Dr. Davis’s opinion was an overestimate of Plaintiff’s functional

limitations, relied too heavily on Plaintiff’s subjective reports of her

symptoms, and was inconsistent with the record evidence (Tr. 116-17).

Unlike Dr. Davis’s marked limitations, the ALJ found that Dr.

Urbanowicz’s opinion was persuasive, because it was consistent with

the evidence and supported by the objective findings in the record

including benign mental status examination findings and Plaintiff’s

responsiveness to treatment (Tr. 20).

Because the ALJ correctly found Dr. Davis’s marked limitations to be

unpersuasive in accordance with the new regulatory framework, and,

because substantial evidence – not a high bar; only more than a mere

scintilla of evidence – supports the ALJ’s finding, the Court must

affirm.

(Doc. 15, pp. 41-43).

As an initial matter, I note that the ALJ cited four, not two, reasons for

discounting the marked limitations set forth by Dr. Davis: (1) “the mental status

examination findings throughout the record, including Dr. Davis’ assessment,

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generally showed mild to benign findings and fails to support more than a finding of

moderate functional limitations”; (2) “no indication in the record that the claimant

has be psychiatrically hospitalized”; (3) no indication that Plaintiff “requires a

structured living arrangement during the relevant period”; and (4) “the record shows

that her symptoms are stable on medication.” (Admin. Tr. 20; Doc. 8-2, p. 21).

Plaintiff argues that the second and third reasons are inadequate because there is no

requirement that a person needs to be psychiatrically hospitalized or live in a

supportive living arrangement to support a “marked” limitation. I agree that there is

no such requirement. However, this error would only be a basis for remand if the

second and third reasons were the only ones cited by the ALJ, and in this case they

were not.

Next, Plaintiff argues that her diagnoses—bipolar disorder, post traumatic

stress disorder, anxiety disorder, and depressive disorder—are enough to establish

“marked” limitations. I disagree. A diagnosis alone is not enough to establish a

“marked” limitation in a particular area.

Last, I agree with the Commissioner’s position that the ALJ’s rationale that

the marked limitations assessed by Dr. Davis are not supported by his own objective

findings or the objective findings made by Plaintiff’s treating psychiatrist in the

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relevant treatment records (the first reason cited in the decision) is supported by the

record and is a proper basis to discount this opinion under the relevant regulations.

On May 25, 2017, Plaintiff sought mental health treatment at Universal

Community Behavioral Health, and was examined by Sreedevi Komarneni, M.D.

(“Dr. Komarneni”). During this first examination, Dr. Komarneni diagnosed

Plaintiff with Bipolar Disorder (Mixed), Post Traumatic Stress Disorder, and Major

Depressive Disorder (recurrent, moderate). (Admin. Tr. 853; Doc. 8-11, p. 58). Dr.

Komarneni recorded the following findings as part of the mental status and cognitive

examination:

MENTAL STATUS EXAMINATION:

 General appearance/behavior/attitude: The patient is a 32-year-

old white female having good eye contact and good rapport. She

is slightly obese, clean and cooperative.

 Motor activity: Agitated and restless.

 Speech: Soft and coherent.

 Mood: Anxious.

 Affect: Mood congruent.

 Thought process: Organized and goal directed, not tangential or

circumstantial.

 Thought content: Normal, but she has paranoia with paranoid

delusions that people are looking at her, talking about her, and

trying to get her and he does not go out that much and she is

afraid of crowds.

 Perceptual disturbances: None. No auditory or visual

hallucinations.

 Suicidal ideation: Denies. No intent or plan to hurt herself.

Access to guns: Denies.

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 Homicidal ideation: Denies.

COGNITIVE EXAMINATION:

 Level of consciousness: Awake.

 Intellectual function: Average. Test used: Based on fund of

knowledge.

 Orientation: Oriented to name, place and time.

 Short term memory: Intact. Test used: She is able to recall

three out of three after five minutes, “TABLE,” “CHAIR,” and

“PEN.”

 Long term memory: Intact. Test used: She knows the

President and her birth date.

 Concentration: Intact. Test used: she is able to spell

“CHAIR” forwards and backwards.

 Insight: Fair. How measured: Based on acknowledging her

problems, diagnoses and contributors.

 Judgment: Fair. How measured: Based on her moral and

health issues.

 Capacity for Activities of Daily Living: Good.

(Admin. Tr. 852-853: Doc. 8-11, pp. 57-58).

On July 15, 2017, Dr. Davis noted that “Ms. Bodley was cooperative during

the evaluation and exhibited fair social skills.” (Admin. Tr. 674; Doc. 8-9, p. 142).

Dr. Davis also assessed that Plaintiff’s judgment seemed “fair.” (Admin. Tr. 675;

Doc. 8-9, p. 143).

On July 27, 2017, Dr. Komarneni examined Plaintiff. During that examination

Dr. Komarneni noted the following objective findings:

The patient is a 32-year-old white female, having good eye contact and

good rapport, pleasant and cooperative. Mood is fair. Affect is mood

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congruent. Anxiety noticed. She is not a danger to self or others. No

psychosis.

(Admin. Tr. 855; Doc. 8-11, p. 60).

On September 26, 2017, Dr. Komarneni examined Plaintiff. During that

examination, Dr. Komarneni noted the following objective findings:

The patient is a 32-year-old white female, having good eye contact and

good rapport, smiling, able to discuss her problems in a goal directed

manner. No evidence of psychosis. She is not a danger to self or others.

(Admin. Tr. 857; Doc. 8-11, p. 62).

On December 13, 2017, Dr. Komarneni examined Plaintiff. During that

examination, Dr. Komarneni noted the following objective findings:

The patient is a 32-year-old Caucasian female, having good eye contact

and good rapport. Mood is good. Affect is mood congruent. She is

smiling and in good mood. Discussed about her boyfriend who is from

New York and he wants to move to New York and she went there and

checked on it and she is a little anxious about the move, but she would

like to think about it. She denies any suicidal or homicidal ideations,

thoughts or plans. No evidence of psychosis.

(Admin. Tr. 859; Doc. 8-11, p. 64).

On March 7, 2018, Dr. Komarneni examined Plaintiff. During that

examination, Dr. Komarneni noted the following objective findings:

The patient is a 32-year-old Caucasian female, having good eye contact

and good rapport. Mood is good. Affect is mood congruent. Discussed

about her horses and how she enjoys horses. Insight and judgment seem

to be intact. She is not a danger to self or others. No evidence of

psychosis.

Page 22 of 55

(Admin. Tr. 861; Doc. 8-11, p. 66).

On June 5, 2018, Dr. Komarneni examined Plaintiff. During that examination,

Dr. Komarneni noted the following objective findings:

The patient is a 32-year-old Caucasian female, having good eye contact

and good rapport. Mood is fair. Affect is mood congruent. Discussed

about her sleep issues and denies anything, which is giving her sleep

problems. Insight and judgment are intact. She is not a danger to self or

others. No psychosis.

(Admin. Tr. 863; Doc. 8-11, p. 68).

On the issue of whether the ALJ correctly concluded that a “marked”

impairment in making judgments on complex work-related decisions was not

supported by the record, I find that the ALJ’s conclusion is supported by substantial

evidence. Plaintiff does not cite to any medical record that supports this limitation.

Based on my own review of Dr. Davis’ narrative report and Plaintiff’s mental health

records summarized above, Plaintiff’s judgment was characterized as “fair” by both

her treating source and by Dr. Davis himself.3 Accordingly, I am not persuaded that

remand is required for further consideration of this aspect of Dr. Davis’ opinion.

On the issue of whether the ALJ correctly concluded that a “marked”

impairment in responding to usual work situations and changes in a routine work

3 Referring to the questionnaire itself, a “marked” limitation is defined as “seriously

limited.” By contrast, the definition of “moderate” limitation is defined as “fair”

ability.

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setting, I also find that the ALJ’s conclusion is supported by substantial evidence.

Once again, Plaintiff does not cite to any specific medical record that supports this

limitation. Based on my review of Dr. Davis’ narrative report and Plaintiff’s mental

health records summarized above, nothing suggests Plaintiff had difficulty adapting

to changes in routine. Moreover, the ALJ limited Plaintiff to occupations where there

would be only “occasional” (defined as very little up to 1/3 of the time) changes in

routine. Because Plaintiff has cited to no evidence that suggests she would be unable

to tolerate occasional workplace changes, I am not persuaded that remand is required

for further evaluation of this aspect of Dr. Davis’ medical opinion.

2. Whether the ALJ Properly Evaluated The Employability

Assessment Form Completed by PA-C Carrie B. Friese

The record in this case includes one page of a Pennsylvania Department of

Public Welfare Employability Assessment form. (Admin. Tr. 599; Doc. 8-9, p. 27).

The form was filled out by Carrie B. Friese, a Certified Physician Assistant from the

Family Practice of Renovo. Id. On the form, PA-C Friese was asked to select

Plaintiff’s employability from the following options: permanently disabled;

temporarily disabled 12 months or more; temporarily disabled less than 12 months;

and employable. PA-C Friese checked the box for “employable” and hand-wrote

underneath “with accommodations.” Id. PA-C Friese listed Plaintiff’s current

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diagnoses as “chronic shoulder pain, subacromial impingement.” Id. The form did

not include any discussion of what “accommodations” might be necessary.

In his decision, the ALJ found that PA-C Friese’s employability assessment

form was not persuasive. In doing so, he explained:

The employability assessment by Carrie B. Friese, Pa-C in October

2016 that the claimant was employable but with accommodations

(Exhibit D10F/26), has not been found persuasive because it fails to

provide specific details regarding what accommodations are required.

(Admin. Tr. 20; Doc. 8-2, p. 21).

Plaintiff argues:

20. The Administrative Law Judge also rejected the Medical Source

Statement form completed by the Plaintiff’s treating physician (see

Exhibit D10F/26 of the Notice of Decision - Unfavorable dated

December 13, 2018, marked as Exhibit A) and only cited that is found

not persuasive because it fails to provide specific details regarding what

accommodations are required, when in fact, a review of the office

records of that office provide more details and specifics as to the

Plaintiff’s employability and need for accommodations which are

supportive of the limitations set forth.

(Doc. 12, p. 9).

In response, the Commissioner argues:

Lastly, Plaintiff contends that the ALJ erred by rejecting the October

2016 employability assessment from Ms. Friese, a physician’s assistant

in Dr. Conly’s office (Pl’s Br. at 9). In particular, Plaintiff suggests that

the ALJ erred by finding the assessment not persuasive because it failed

to provide specific accommodations, when, Plaintiff suggests, “a

review of the office records of that office provide more details and

specifics as to the Plaintiff’s employability and need for

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accommodations which are supportive of the limitations set forth” (Pl’s

Br. at 9). Plaintiff’s argument is without merit.

In the first instance, Plaintiff has failed to identify, let alone cite to, any

evidence in the record that documents any functional limitations or

“accommodations” from Ms. Friese, Dr. Conly, or any of Plaintiff’s

treating physicians. Nor could she. A review of the record confirms that

none of Plaintiff’s treating providers documented any functional

limitations related to Plaintiff’s impairments, nor that she was unable

to work. To the contrary, as evidenced by the ALJ’s comprehensive

discussion, the record reveals that Plaintiff had various impairments,

but that “the symptomology due to these impairments were reduced to

manageable levels with treatment during the relevant period” (Tr. 20).

Thus, Plaintiff’s argument fails as a matter of fact.

Moreover, the ALJ correctly evaluated Ms. Friese’s October 2016

opinion that Plaintiff was “employable” with accommodations in

accordance with the new regulatory framework, and explained that it

was not persuasive because it provided no details about what

accommodations were allegedly required (Tr. 20). In other words,

because the opinion was devoid of any accommodations or functional

limitations, Ms. Friese’s opinion was unsupported by the evidence of

record. The ALJ’s evaluation of Ms. Friese’s opinion provided

sufficient articulation for finding it unpersuasive; there was no error.

Ultimately, Plaintiff asks this Court to re-weigh the evidence relating

to her impairments and decide the outcome of this case differently. This

request is impermissible under the substantial evidence standard of

review. Because substantial evidence—not a high standard; more than

a mere scintilla—supports the ALJ’s evaluation of the evidence, the

Court should affirm the ALJ’s decision.

(Doc. 15, pp. 44-45).

Under the Commissioner’s regulations for evaluating opinion evidence, “[t]he

more relevant the . . . supporting explanations presented by a medical source are to

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support his or her medical opinion(s) . . ., the more persuasive the medical opinions

. . . will be.” 20 C.F.R. § 416.920c(c)(1). Thus, the a lack of explanation by the

source is a proper basis to discount a source’s opinion. I also note that, PA-C Friese’s

opinion, although discounted, is not inconsistent with the ALJ’s conclusion, in which

he found Plaintiff could work or is “employable” subject to the restrictions or

“accommodations” set forth in the RFC assessment.

To the extent Plaintiff argues that “the office records of that office provide

more details and specifics as to the Plaintiff’s employability and need for

accommodations which are supportive of the limitations set forth,” I am not

persuaded. Plaintiff did not cite to any record that supports this argument, and the

court is not required to sift through the entire record in this case on its own. The

record in this case contains over 200 pages of records from Family Practice of

Renovo, where Plaintiff was treated by several people, including PA-C Friese.

(Admin. Tr. 287-335, 535-651, 793-796, 800-848; Doc. 8-7, pp. 3-51, Doc. 8-9, pp.

3-119, Doc. 8-10, pp. 115-118, Doc. 8-11, pp. 5-53). The full administrative record

in this case is over 800 pages. This Court’s Local Rules provide that “[e]ach

contention [raised in a Plaintiff’s brief] must be supported by specific reference to

the portion of the record relied upon and by citations to statutes, regulations and

cases supporting plaintiff’s position.” L.R. 83.40.4(c) (emphasis added). “Judges are

Page 27 of 55

not like pigs, hunting for truffles buried in the record.” Albrechtsen v. Bd. of Regents

of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002); see e.g. Elmore v. Clarion

Univ., 933 F.Supp. 1237, 1247 (M.D. Pa. 1996) (noting that a Plaintiff’s general

reference to over 250 pages of deposition testimony is “wholly inappropriate,” and

holding that a litigant who “fails to press a point by supporting it with pertinent

authority or by showing why is it is a good point despite a lack of authority” forfeits

the point).

C. WHETHER THE ALJ ADEQUATELY EVALUATED PLAINTIFF’S

STATEMENTS ABOUT HER SYMPTOMS

During the administrative hearing, Plaintiff made the following statements in

response to questions about the use of her hands:

Q And you talked about your problem with your hands. How long

can you use your right hand before you start to have problems?

A About 10, 15 minutes before it goes numb.

Q When it goes numb, what are you able to do with it at that point?

A Nothing.

Q Can you use it as an assist, to help your left hand?

A No. Once it goes numb, I can’t do nothing with it.

Q Okay. You say 10 to 15 minutes so I can use it, how long does it

take for it to get where you can use it again?

A Three, four hours, maybe longer.

Page 28 of 55

Q So if you were using it in the morning, and you worked with it

for a while, and it became numb, you wouldn’t be able to use it

again until the afternoon?

A right.

Q again, would it take about the same time to become problematic

for you in the afternoon?

A Yeah.

Q Ten, 15 minutes?

A Minutes, yep.

Q Have you told your doctors the problems you’re having?

A Yes.

Q And have they offered—what happened originally? You said

you’d had some surgery on your wrist.

A They’re not really sure how I got the injury, but the surgery, they

went in and removed a cyst and fixed tendons, and fixed carpal

tunnel.

Q Now, when did that happen? When were those surgeries, or

surgery?

A January of this year.

Q Okay. And who did the surgery?

A Steven Goldberg in Bloomsburg.

Q And have you worked since then?

A No.

(Admin. Tr. 38-39; Doc. 8-2, pp. 39-40).

Page 29 of 55

In his decision, the ALJ summarized Plaintiff’s testimony. He addressed the

evidence related to Plaintiff’s use of her hands as follows:

Treatment notes show that in lane January 2017, due to a history of

ganglion cyst and partial tear of ulnar surface of TFC, the claimant

underwent right wrist arthroscopy with joint debridement and

synovectomy of both mid carpal and radiocarpal joints with

lunotriquetral and triquetrohamate pinning for carpal instability, TFC

repair and ganglion cyst excision. As of February 2017, it was noted

that post-surgery, the claimant was doing well with pain level at 6/10

and wearing custom long arm orthosis with no complaints. Physical

examination showed good sensation, good finger and elbow motion and

only mild tenderness. The pins were removed in March 2017. As of

April 2017, reported pain level was at 5/10 and the claimant [sic] that

she returned some of her normal activities including work with horses.

Physical examination showed good sensation, wrist stiffness as

expected, ability to make a full fist and only mild tenderness (Exhibit

D8F/3-4, 8-9, 18, 20, 24-25; D10F/8) In December 2017, it was

indicated that the surgery resulted in a good outcome. (D21F/8).

(Admin. Tr. 18; Doc. 8-2, p. 19).

Ultimately, the ALJ discounted Plaintiff’s testimony regarding the limitations

in her right hand because it was “not fully supported by the record, which shows

improvements after surgery with good hand strength.” (Admin. Tr. 20; Doc. 8-2, p.

21).

Plaintiff argues:

17. The standards for determining whether objective medical evidence

exists to justify symptoms of the Claimant and find them credible as set

forth at SSR 16-3p, which applies to both Title II and Title XVI claims

and provides “In determining whether an individual is disabled we

consider all the individual’s symptoms, including pain in the extent to

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which the symptoms can reasonably be accepted as consistent with the

objective medical and other evidence in the individual’s record. We

define a symptom as the individual’s own description or statement of

his or her physical or mental impairments. Under our Regulations, an

individual’s statement of symptoms alone are not enough to establish

the existence of a physician or mental impairment or disability.

However, if an individual alleges impairment related symptoms, we

must evaluate those symptoms using a two step process set forth in our

Regulations.

18. First, we must consider whether there is an underlying medically

determinable physical or mental impairment(s) that could reasonably

be expected to produce an individual’s symptoms, such as pain.

19. Second, once an underlying physical or mental impairment(s) could

reasonably be expected to produce an individual’s symptoms is

established, we evaluate the intensity and persistence of those

symptoms to determine the extent to which the symptoms limit the

individuals ability to perform work related activities for an individual

or to function independently, appropriately and effectively in an age

appropriate manner for a child . . . .”

The factors are set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3).

Under that two step approach, there clearly are medical diagnoses’s

[sic] as found to be severe impairments by the Administrative Law

Judge in their [sic] Unfavorable Decision and second of all, the

Claimant testified the intensity and persistence of her individual

symptoms including pain and significantly loss of use of her right hand

for no more than 15-20 minutes in the morning and 15-20 minutes in

the afternoon, which the Vocational Expert testified to would be

disabling.

(Doc. 12, pp. 8-9).

In response, the Commissioner argues:

Here, consistent with the regulations, the ALJ appropriately determined

that Plaintiff’s medically determinable impairments could reasonably

be expected to cause her alleged symptoms, but that her statements

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concerning the intensity, persistence and limiting effects of such

symptoms were “not entirely consistent with the medical and other

evidence in the record” (Tr. 18). In so finding, the ALJ specifically

considered Plaintiff’s statements regarding her pain and other

symptoms, including her alleged functional limitations and difficulties

handling stress and changes in routine (Tr. 17-18). Then, consistent

with the regulations, the ALJ reviewed the medical evidence, including

treatment records, examination findings, and diagnostic images, and

explained his reasons for discounting Plaintiff’s subjective complaints

(Tr. 17-21). Specifically, the ALJ explained that, with the exception of

wrist surgery, Plaintiff’s impairments were treated conservatively

throughout the relevant period (Tr. 18-19). The ALJ also noted that

Plaintiff’s wrist impairment improved with surgery, and that Plaintiff

herself reported that the surgery resulted in a good outcome (Tr. 18-19).

But that was not all. The ALJ also considered Plaintiff’s inconsistent

statements regarding her activities and limitations. For example, the

ALJ noted that, although Plaintiff testified at the hearing that she did

not have horses or care for them (Tr. 17-18), the record documented the

opposite (Tr. 20). Indeed, on numerous occasions, the record confirmed

that, throughout the relevant period, Plaintiff worked with, cared for,

rode, and showed horses (Tr. 20, 353, 451, 535, 754, 805, 851, 855,

857, 861). Likewise, the ALJ explained that at the hearing, Plaintiff

testified that surgery did not improve her hand and wrist pain (Tr. 17).

Conversely, the record documented that Plaintiff’s hand and wrist pain

improved considerably with surgery (Tr. 20, 451); indeed, in December

2017, Plaintiff advised Dr. Donio that her right wrist surgery resulted

in a “good outcome” (Tr. 805).

In sum, the ALJ specifically considered and reasonably evaluated

Plaintiff’s subjective complaints in light of the applicable regulations

and governing law. The ALJ did not (and was not required to) find

Plaintiff disabled based on her subjective complaints alone.

(Doc. 15, pp. 34-35).

Page 32 of 55

The Commissioner’s regulations define “symptoms” as the claimant’s own

description of his or her impairment. 20 C.F.R. § 416.902(i). The ALJ is not only

permitted, but also required, to evaluate the claimant’s statements about all

symptoms alleged and must decide whether and to what extent a claimant’s

description of his or her impairments may be deemed credible. In many cases, this

determination has a significant impact upon the outcome of a claimant’s application,

because the ALJ need only account for those symptoms – and the resulting

limitations – that are credibly established when formulating his or her RFC

assessment. Rutherford, 399 F.3d at 554. To facilitate this difficult analysis, the

Commissioner has devised a two-step process that must be undertaken by the ALJ

to evaluate a claimant’s statements about his or her symptoms.

First, the ALJ must consider whether there is an underlying medically

determinable impairment that can be shown by medically acceptable clinical and

laboratory diagnostic techniques that could reasonably be expected to produce the

symptom alleged. 20 C.F.R. § 416.929(b). If there is no medically determinable

impairment that could reasonably produce the symptom alleged, the symptom

cannot be found to affect the claimant’s ability to do basic work activities. 20 C.F.R.

§ 416.929(b); SSR 16-3p, 2016 WL 1119029.

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Second, the ALJ must evaluate the intensity, persistence, and limiting effects

of the symptoms which can be reasonably attributed to a medically determinable

impairment. 20 C.F.R. § 416.929(c)(1). Symptoms will be determined to reduce a

claimant’s functional capacity only to the extent that the alleged limitations and

restrictions can reasonably be accepted as consistent with objective medical

evidence and other evidence of record. 20 C.F.R. § 416.929(c)(4). However, an ALJ

will not reject statements about the intensity, persistence, or limiting effects of a

symptom solely because it is not substantiated by objective evidence. 20 C.F.R.

§ 416.929(c)(3). Instead, the ALJ will evaluate the extent to which any

unsubstantiated symptoms can be credited based on the following factors: the

claimant’s daily activities; the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; any factor that precipitates or aggravates the

claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects

of any medication the claimant takes or has taken to alleviate his or her pain or other

symptoms; any treatment, other than medication, the claimant receives or has

received for relief of his or her pain or other symptoms; any measures the claimant

uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your

back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any

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other factors concerning functional limitations and restrictions due to pain or other

symptoms. 20 C.F.R. § 416.929(c)(3).

An ALJ’s findings based on the credibility of a claimant are to be accorded

great weight and deference, since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL

288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant’s statements

about his or her symptoms or limitations for no reason or for the wrong reason.

Rutherford, 399 F.3d at 554.

Plaintiff points to her testimony regarding her hand impairment and syncope

and generally alleges that her testimony should be fully credited. She supports this

argument by citing to the Commissioner’s Social Security Ruling 16-3p. In fact,

Plaintiff’s entire argument, except for the second paragraph of ¶ 19 in Plaintiff’s

brief appears to be a direct quote from that ruling. Although Plaintiff summarizes

the two-step process for evaluating a claimant’s statements about his or her

symptoms, she does not explain how the ALJ’s application of the process was

defective in this case or identify any evidence relevant under the 20 C.F.R.

§ 416.929(c)(3) factors that was ignored or mischaracterized by the ALJ.

Page 35 of 55

Given that an ALJ’s assessment of a Plaintiff’s testimony is entitled to

deference, and that Plaintiff has not articulated any basis to disturb the ALJ’s

decision to discount Plaintiff’s testimony that she could not use her hands for more

than 15 minutes at a time for a total of 30 minutes per day even after she had

corrective surgery, I am not persuaded that remand is required for further evaluation

of Plaintiff’s statements.

D. WHETHER THE ALJ’S RFC ASSESSMENT ACCOUNTS FOR ALL OF

PLAINTIFF’S CREDIBLY ESTABLISHED LIMITATIONS

One oft-contested issue in this setting relates to the claimant’s residual

capacity for work in the national economy. As discussed above, a claimant’s RFC is

defined as “the most [a claimant] can still do despite [his or her] limitations,” taking

into account all of a claimant’s medically determinable impairments. 20 C.F.R.

§ 416.945. In making this assessment, the ALJ is required to consider the combined

effect of all medically determinable impairments, both severe and non-severe. Id.

Although such challenges most often arise in the context of challenges to the

sufficiency of vocational expert testimony, the law is clear that an RFC assessment

that fails to take all of a claimant’s credibly established limitations into account is

defective. See Rutherford v. Barnhart, 399 F.3d 546, 554 n. 8 (3d Cir. 2005) (noting

that an argument that VE testimony cannot be relied upon where an ALJ failed to

recognize credibly established limitations during an RFC assessment is best

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understood as a challenge to the RFC assessment itself); Salles v. Comm’r of Soc.

Sec., 229 F. App’x 140, 147 (3d Cir. 2007) (noting that an ALJ must include in the

RFC those limitations which he finds to be credible). Credibly established

limitations are:

Limitations that are medically supported and otherwise uncontroverted

in the record, but that are not included in the hypothetical question

posed to the expert, preclude reliance on the expert's response (Burns,

312 F.3d at 123). Relatedly, the ALJ may not substitute his or her own

expertise to refute such record evidence (Plummer, 186 F.3d at 429).

Limitations that are medically supported but are also contradicted by

other evidence in the record may or may not be found credible—the

ALJ can choose to credit portions of the existing evidence but “cannot

reject evidence for no reason or for the wrong reason” (a principle

repeated in Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993); Reg.

§ 929(c)(4)). Finally, limitations that are asserted by the claimant but

that lack objective medical support may possibly be considered

nonetheless credible. In that respect the ALJ can reject such a limitation

if there is conflicting evidence in the record, but should not reject a

claimed symptom that is related to an impairment and is consistent with

the medical record simply because there is no objective medical

evidence to support it (Reg. § 929(c)(3)).

Rutherford, 399 F.3d at 554.

Moreover, because an ALJ’s RFC assessment is an integral component of his

or her findings at steps four and five of the sequential evaluation process, an

erroneous or unsupported RFC assessment undermines the ALJ’s conclusions at

those steps and is generally a basis for remand.

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Plaintiff’s argument that the ALJ’s RFC assessment is incorrect it two-fold.

First, Plaintiff argues that the ALJ failed to account for Plaintiff’s credibly

established limitations due to syncope and right-hand impairment. Second, Plaintiff

argues that the ALJ inexplicably limited Plaintiff to “light” work in the 2018

decision when a different ALJ limited Plaintiff to “sedentary” work in 2012. In

support of her second argument, Plaintiff notes that she had more impairments in

2018 than she did in 2012.

1. Whether the ALJ Adequately Accounted For the Limitations

Caused by Plaintiff’s Shoulder, Hand Impairment and Syncope in

the RFC Assessment in the 2018 Decision

During her administrative hearing, Plaintiff made the following statements

about her syncope:

Q And there were some earlier notes that I saw about you having

some—what I’m going to call syncope. Where you were, like

dizzy, lightheadedness. Are you still having that?

A I do.

Q And how often do you have that?

A That happens only every –I don’t know. Not very often. Every six,

seven months.

(Admin. Tr. 47; Doc. 8-2, p. 48).

The ALJ addressed the evidence related to Plaintiff’s syncope as follows:

Page 38 of 55

Subsequently, treatment notes in 2015 indicate the claimant had

vasovagal syncope with prolonged asystolic episodes in the setting of

overt hypothyroidism, but symptoms resolved with treatment and as of

December 2015 was noted to have no recurrent syncope. (Exhibit

D8F/3. 44-56) Her last syncope episode was noted in June 2016, but

was noted to [sic] related to untreated hypothyroidism. (Exhibit

D13F/11)

(Admin. Tr. 19; Doc. 8-2, p. 20).

During the administrative hearing Plaintiff made the following statements

about her shoulder pain:

Q Did you also have problems with your shoulders?

A Yes.

Q Now, which—one or both shoulders?

A Both.

Q Okay. Can you tell the judge what kind of issues you’ve had with

them?

A It started out with the left shoulder. I’ve had cortisone shots—

Q Injections?

A Injections, yes. In that shoulder, and it didn’t seem to work. Now,

my right shoulder—or am I getting them confused? Yeah.

They—and now I have impingements in whatever else they say

is going on in there. And I have to go see an ortho doctor.

Q Have you also had a positive ANA test for rheumatoid arthritis?

A Yes.

Q Did you see a rheumatologist down at Geisinger?

Page 39 of 55

A Yes.

Q And what have they told you about your rheumatoid situation? If

you remember. If not, there’s a record of it.

A I don’t—I mean, I don’t remember.

Q So you—they basically told you you had rheumatoid arthritis

starting?

A Yes.

(Admin. Tr. 39-40; Doc. 8-2, pp. 40-41).

In his decision, the ALJ summarized the medical evidence related to

Plaintiff’s shoulder pain:

In September 2017, the claimant reported worsening left shoulder pain,

but denied radiation of pain, She also reported back pain and neck pain.

At that time, physical examination indicated tenderness to palpation in

the left shoulder and tenderness with range of motion. (Exhibit

D21F/42) However, a radiograph (X-ray) of the lumbar spine in

September 2017 showed no acute findings and age indeterminate

nonspecific anterior wedging of L4 vertebral body. Around the same

time, and X-ray of the cervical spine showed mild degenerative changes

with no acute findings. She was referred for physical therapy. (Exhibit

D21F/16-17, 39-40) In addition, an ANA screen test was positive with

a Rheumatoid Factor of 11 and she was referred to a rheumatologist.

(Exhibit D21F/37) In December 2017, the claimant presented for a

rheumatology consultation due to positive ANA and polyarthralgias

including left rotator cuff syndrome of the left shoulder with

impingement and an element of left bicipital tendonitis, low back pain

and buttock discomfort (hip pain). The positive ANA was determined

to be a low positive with uncertain significance; it was noted that her

multiple medications could have caused the positive test. Further, her

musculoskeletal complaints were not related to any systemic

autoimmune disease. With respect to her shoulder, it was noted that she

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had not responded to injection and continued on Naproxen, which had

been somewhat helpful. Notably, it was indicated that the claimant and

her boyfriend took care of 10 horses on their property that required

vigorous activities over the years. Physical therapy and evaluation for

therapeutic exercises was recommended. Her back and buttock

complaint was considered the lesser complaint and not addressed.

(Exhibit D21/8-19).

(Admin. Tr. 18-19; Doc. 8-2, pp. 19-20).

Plaintiff’s testimony about her hand impairment, and the ALJ’s evaluation of

medical evidence related to that impairment are summarized in Section IV. C of this

Opinion.

The ALJ concluded that:

Overall, the evidence of record as a whole does not support a finding of

debilitating impairments. The record supports a finding that the

claimant’s most significant impairments included post-surgical

hypothyroidism due to history of thyroid cancer and thyroidectomy,

history of vasovagal syncope, cervical and lumbar degenerative disc

disease, left hip degenerative joint disease, right CTS, right wrist

ganglion cyst and partial tear of ulnar surgace of TFC status-post wrist

arthroscopy, debridement and synovectomy carpal and radiocarpal

joints, pinning TFC repair and ganglion cyst excision, right ankle

degenerative joint disease, right shoulder derangement and

impingement, and left rotator cuff syndrome with impingement and

bicipital tendinitis. However, the evidence of record shows that the

symptomology due to these impairments were reduced to manageable

levels with treatment during the relevant period, including surgical and

conservative treatment. While the claimant continues to have some

problems, the limitations outlined in the residual functional capacity

adequately accounts for limitations due to the claimant’s physical and

mental impairments. Notably, despite the claimant’s subjective

allegations of severe physical and mental limitations, the undersigned

finds that the evidence of record simply did not support such

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limitations, but has given the claimant every benefit of the doubt by

allowing for light exertional limitation along with manipulative,

postural, environmental and mental limitations in the residual

functional capacity. Significantly, throughout the relevant period the

claimant was actively taking care of horses. Further, her allegations

regarding limitations in her right hand is not fully supported by the

record, which shows improvement after surgery with good hand

strength.

(Admin. Tr. 19-20; Doc. 8-2, pp. 20-21).

Plaintiff argues:

7. The Plaintiff’s clear testimony in this case supported by the objective

medical evidence is that her right hand is good for 10-15 minutes then

foes numb and becomes useless. She can only use her right hand for 10-

15 minutes in the morning and afternoon and has to work with just on

[sic] hand the rest of the day.

8. The Plaintiff still had heart issues that were not resolved and has

bouts of syncope every six (6) or seven (7) months.

. . . .

10. A review of hypothetical question posed to the Vocational Expert

would show that the Administrative Law judge failed to place

restrictions on the Plaintiff’s ability to work for the vast number of

severe impairments that the Administrative Law Judge found pursuant

to Finding of Fact and Conclusion of Law No. 2 on page 3 of Notice of

Decision – Unfavorable, dated December 13, 2018, attached hereto and

marked as Exhibit A and incorporated by reference herein.

11. As defined in the Social Security Law, a severe impairment, is an

impairment or a combination of impairments that significantly limit the

individual’s physical or mental abilities and, as a result, interfere with

the individuals ability to perform basic activities.

12. In addition, in response to hypothetical No 2, the Administrative

Law Judge questioned whether the limitation of occasional use of the

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Plaintiff’s right upper extremity would preclude the performance of

light jobs indicated by the Vocational Expert and the answer was yes

that condition would, in fact, exclude light jobs.

(Doc. 12, pp. 5-6).

In response, the Commissioner argues:

The ALJ here thoroughly evaluated the medical evidence and

reasonably determined that, despite her impairments, Plaintiff could

perform a reduced range of light work with numerous additional

limitations to account for her symptoms (Tr. 12-22). Notably, the record

documents the following;

• Syncope: Prior to the relevant period, Plaintiff experienced

several syncopal episodes that were found to be related to

her hypothyroidism (Tr. 19, 353, 364, 660, 669).

Plaintiff’s symptoms resolved with adjustments to her

thyroid medication (Id.). She reported no syncopal

episodes after July 2016 (Tr. 414, 664, 669).

• Right wrist impairment: After complaining of right wrist

numbness in October 2016, an MRI revealed a ganglion

cyst along the radial margin of the distal radius (Tr. 505-

507). In January 2017, Plaintiff underwent right wrist

arthroscopy and repair (Tr. 18, 469). By April 2017,

Plaintiff’s pain was reduced to a five on a 10-point scale

and she had returned to her normal activities including

working with horses (Tr. 18, 451). In December 2017,

Plaintiff advised Dr. Donio that wrist surgery resulted in a

good outcome (Tr. 18, 805).

• Right shoulder pain: In March 2016, three months before

her alleged onset date, Plaintiff reported right shoulder and

neck pain after “lifting and putting up a fence” (Tr. 407).

X-rays of her right shoulder and cervical spine were

negative (Tr. 393-94). Plaintiff attended physical therapy

in April 2016, but an examination revealed normal range

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of motion in all joints and full strength in all extremities

(Tr. 747). Plaintiff was advised to stop pushing heavy

bales of hay (Tr. 747). In October 2016, Dr. Bailey

evaluated Plaintiff’s right shoulder pain; on examination,

she had functional range of motion in her right upper

extremities and Dr. Bailey explained that the findings were

not significant for right shoulder impingement, nor were

they related to cervical disc protrusions (Tr. 754). During

a November 2016 follow-up, Dr. Bailey noted that despite

Plaintiff’s complaints with almost any movement, “when

pushing her she is able to demonstrate full strength in all

planes. Also has nearly full range of motion” (Tr. 533). Dr.

Bailey administered an injection and noted that Plaintiff

had “significant improvement in her pain prior to leaving

the office” (Tr. 553).

• Left shoulder pain: In September 2017, Plaintiff reported

worsening left shoulder pain (Tr. 18, 838). An

examination revealed some tenderness to palpation in the

left shoulder (Id.) During a rheumatology examination in

December 2017, Plaintiff complained of left shoulder pain

for the past four to six months, and indicated that it was

her biggest problem (Tr. 18, 805). On examination,

Plaintiff had a positive impingement sign on the left with

tenderness; she was referred to physical therapy (Tr. 805).

• Other physical findings: Physical examination findings

otherwise consistently documented a normal gait, normal

coordination, normal reflexes, normal movement in the

extremities, no atrophy, and full strength. See supra.

• Depression, anxiety, and PTSD: Plaintiff did not seek

treatment with a mental health specialist until May 2017,

almost a year after her alleged onset date. A mental status

examination was largely normal and revealed that she was

cooperative; had fair social skills; normal thought

processes; intact concentration and attention; average

intellectual functioning; and fair insight and judgment; but

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was agitated, restless, with an anxious mood (Tr. 19, 852-

53). Plaintiff was started on Lexapro (Tr. 19, 853), and by

July 2017, she reported that she was much better and

keeping “herself busy by taking care of the horses all the

time” (Tr. 19, 855). In December 2017, Plaintiff reported

that she was doing well, was in a good mood, and had a

congruent affect (Tr. 859). In March 2018, Plaintiff was

stable on her medications; she was in a good mood and

had a congruent affect (Tr. 861). In June 2018, Plaintiff

reported that she was doing well, and had a fair mood and

congruent affect (Tr. 863).

After thoroughly reviewing the evidence, the ALJ explained that

although Plaintiff had a number of impairments, “the symptomology

due to these impairments were reduced to manageable levels with

treatment during the relevant period, including surgical and

conservative treatment. While the claimant continues to have some

problems, the limitations outlined in the residual functional capacity

adequately accounts for limitations due to the claimant’s physical and

mental impairments” (Tr. 19-20). Accordingly, the ALJ generously

assessed an RFC for a reduced range of light work except that Plaintiff

was further limited to:

• Frequently using foot controls with the bilateral lower

extremities;

• Frequently reaching, handling, fingering and feeling with

the right upper extremity;

• Frequently reaching with the left upper extremity;

• Frequently balancing, stooping, kneeling, crouching,

crawling, and climbing ramps and stairs;

• Never climbing on ladders, ropes, and scaffolds;

• No exposure to hazards such as unprotected heights and

dangerous moving mechanical parts and operating a

motor vehicle;

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• Work comprising simple routine tasks;

• No production rate pace;

• Only occasional changes in the work setting;

• Frequent interaction with supervisors, coworkers, and the

public.

This comprehensive and thorough RFC was grounded in substantial

evidence that the ALJ discussed throughout his decision. In doing so,

the ALJ also evaluated the medical opinions in the record and explained

that the state agency consultants’ opinions were persuasive because

their limitations were supported by and consistent with the record as a

whole (Tr. 20). The ALJ also explained that Dr. Davis’ marked

limitations were unpersuasive because they were inconsistent with and

unsupported by the medical evidence that documented, at most, only

mild to moderate functional limitations (Tr. 20). Finally, the ALJ

explained that Ms. Friese’s October 2016 opinion that Plaintiff was

employable with accommodations was unpersuasive because it

contained no details as to what accommodations were required (Tr. 20).

Because the above-cited evidence, which the ALJ discussed throughout

his decision, provided ample evidentiary support for the ALJ’s RFC,

there is no basis to override it. Plaintiff’s remaining challenges to the

ALJ’s RFC are without merit.

(Doc. 15, pp. 29-33).

Plaintiff argues that the ALJ did not account for credibly established

limitations that result from Plaintiff’s right shoulder impairment, hand impairment,

and syncope. In support of this argument, Plaintiff cites to her own testimony and

argues that if that testimony was credited she would have been found disabled. She

does not include any specific citation to the record or to any objective medical

evidence related to these impairments. As legal support for her argument, Plaintiff

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cites to the definition of a “severe” impairment at step two, which provides “[a]n

impairment or combination of impairments is not severe if it does not significantly

limit your physical or mental ability to do basic work activities.” 20 C.F.R.

§ 416.922(a). The same regulation defines “basic work activities” as:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple

instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 416.922(b). Conversely, an impairment is “severe” if it does

significantly limit a claimant’s physical or mental ability to do basic work activities.

The phrase, “significantly limits,” however is not synonymous with “disability.”

Rather, the ALJ’s analysis at step two is a threshold test designed to screen out de

minimis claims. Thus, I am not persuaded that the limitations alleged by Plaintiff in

her testimony should be credited simply because these impairments were found to

be “severe” at step two.

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In response to Plaintiff’s argument, the Commissioner cited to objective

evidence supporting the ALJ’s conclusion.

The Commissioner argues that Plaintiff’s most recent syncopal episode

occurred in July 2016. An October 13, 2016 treatment record from Susquehanna

Health states:

The etiology of her syncope is likely vasovagal or due to untreated

hypothyroidism. Now that her hypothyroidism is better managed her

symptoms are significantly better. She had not had any syncope since

July.

(Admin. Tr. 669; Doc. 8-9, p. 137). Plaintiff has cited to no objective evidence

suggesting that she had any further syncopal episodes after July 2016. I also note

that the ALJ limited Plaintiff to occupations where she would not be exposed to

unprotected heights or hazardous machinery. Plaintiff does not suggest what other

limitations might result from this impairment or explain why those limitations

should be credited.

Next, Plaintiff suggests that she can only occasionally use her right arm—a

limitation which appears to flow from her right hand and shoulder impairment. In

the RFC assessment, the ALJ limited Plaintiff to “frequent” (rather than

“occasional”) use of her right arm. Once again, Plaintiff does not cite to any evidence

to support her position that this limitation is credibly established. By contrast, the

evidence cited by the Commissioner shows that Plaintiff had a functional range of

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motion in her arm, and that the right wrist surgery reduced Plaintiff’s hand pain.

Specifically, April 2016 physical therapy records report that Plaintiff had full

strength in her right upper extremity but did have decreased grip strength (grip

strength was measured as 40 pounds on the right and 66 pounds on the left). (Admin.

Tr. 747; Doc. 8-10, p. 69). An October 2016 functional assessment done by a

physical therapist documents that Plaintiff had no restriction to her ability to carry,

move and handle objects and did not require assistance for daily tasks, but did

experience right shoulder pain while completing tasks. (Admin. Tr. 755; Doc. 8-10,

p. 77). During a follow-up exam four months after Plaintiff’s January 2017 wrist

surgery Plaintiff reported that she had returned to some of her normal activities.

(Admin. Tr. 452; Doc. 8-8, p. 30). Plaintiff had good sensation and capillary refill

and was able to make a full fist. Plaintiff was advised to make sure her incision was

covered and well protected during farm work. Id. December 2017 rheumatology

records note that Plaintiff “had right wrist surgery for a triangular fibrocartilage tear

and ganglion cyst with good outcome there.” (Admin. Tr. 804; Doc. 8-11, p. 9).

Nothing in the objective records cited by either party suggests a greater degree of

limitation than accounted for by the ALJ. Furthermore, as discussed in Section IV.

C. of this Opinion, the ALJ did not err by discounting Plaintiff’s testimony about her

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hand. Accordingly, I am not persuaded that remand is required for further

consideration of Plaintiff right hand and arm impairments.

2. Whether the ALJ erred by Imposing a Less Restrictive RFC in

2018 than A Different ALJ Imposed in 2012

Plaintiff argues:

1. In the Plaintiff’s previous Notice of Decision – Unfavorable dated

December 14, 2012, the prior Administrative Law Judge found the

Plaintiff limited to unskilled sedentary employment. See pages 8 and 9

of the Notice of Decision – Unfavorable marked as Exhibit A and

incorporated by reference herein.

2. That particular Decision found the Plaintiff has the following severe

impairments:

“Thyroid cancer status post thyroidectomy, degenerative disc disease

of the spine, left hip degeneration, depression and anxiety”. See Finding

of Fact and Conclusion of Law No 2, page 3 of the Notice of Decision

– Unfavorable marked as Exhibit A and incorporated by reference

herein.

3. In this particular case, the Administrative Law Judge found in the

most recent Notice of Decision, dated December 13, 2018, Finding of

Fact and Conclusion of Law No. 2, page 3 which was appealed, that the

Plaintiff suffered from the following severe impairments, “the claimant

has the following severe impairments: post-surgical hypothyroidism,

history of thyroid cancer and thyroidectomy, history of vasovagal

syncope, cervical and lumbar degenerative disc disease, left hip

degenerative disc disease, left hip degenerative disc joint disease, right

carpal tunnel syndrome (CTS), right wrist ganglion cyst and partial tear

of ulnar surface of triangular fibrocartilage (FTC) status-post wrist

arthroscopy, debridement and synovectomy carpal and radiocarpal

joints, pinning, TFC repair and ganglion cyst excision, right ankle

degenerative joint disease, right shoulder derangement and

impingement, left rotator cuff syndrome with impingement and

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bicipital tendinitis, major depressive disorder (MDD), bipolar disorder,

anxiety disorder and post-traumatic stress disorder (PTSD).

4. Despite finding many additional severe impairments and keeping in

mid that in order for an impairment to be severe it must provide for

work related limitations of function. The most recent Administrative

Law Judge found the Plaintiff was able to perform a range of light

employment.

(Doc. 12, pp. 4-5).

The Commissioner does not address this argument.

Plaintiff argues that the ALJ’s RFC assessment that Plaintiff could do a

limited range of “light work” during the period between June 15, 2016 and

December 13, 2018, must be wrong because a different ALJ determined that Plaintiff

was limited to “sedentary” work during the period between February 14, 2008 and

December 14, 2012. Plaintiff was found “not disabled” by both ALJs. In support of

her argument, Plaintiff generally alleges that Plaintiff had more medically

determinable impairments during the period between June 15, 2016 and December

13, 2018, than she did during the period between February 14, 2008 and December

14, 2012. Plaintiff has cited no statute, regulation, social security ruling, or caselaw

to support her position that a person is always more limited if he or she has more

impairments. Absent any such authority, and based on my review of the ALJ’s

decision in this case and the evidence that supports it, I am not persuaded that remand

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is required simply because the ALJ arrived at a less restrictive RFC than a different

ALJ evaluating a different period of time based on different evidence.

E. WHETHER THE ALJ ERRED WHEN HE FOUND PLAINTIFF HAD NO

PAST RELEVANT WORK IN HIS 2018 DECISION

The Commissioner’s regulations define “work experience” as the “skills and

abilities [the claimant] has acquired through work [the claimant has] done which

show the type of work [the claimant] may be expected to do.” 20 C.F.R.

§ 416.965(a). A claimant’s work experience is only “relevant” (1) when it was done

within the last 15 years, (2) if the job lasted long enough for the claimant to learn to

do it, and (3) if it was substantial gainful activity. Id.

When asked about her employment history, Plaintiff testified:

Q I’m looking back 15 years from today at your past relevant

work. And I just want to confirm that you worked these

positions within this 15 year window. The first one would have

been at McDonald’s, you were a crew member, is that correct?

A Yes.

Q From, looks like, January of ’15 to June of ’16?

A Yes.

Q You also worked at Smerfit-Stone doing labor from June of ’05

to November of ’05?

A That’s correct.

Q And you worked at Walmart as a sales associate June of ’04 to

August of ’04?

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A That would be correct.

(Admin. Tr. 36; Doc. 8-2, p. 37).

When asked to classify Plaintiff’s past employment the VE testified:

Q Ms. Abraham, could you please describe the claimant’s past

work? And it’s the three positions I mentioned earlier in the

hearing today, and also her vocational profile?

A Yes, judge. Presently, this is a younger individual, I have 33

years of age, who testified today she does have a GED. In regard

to past work, the first position we’re looking at McDonald’s. The

claimant indicated that she worked as a fast food cook, which is

defined in the DOT as medium, skilled, with an SVP of five.

Based upon the file information, the claimant indicated lifting up

to 50 pounds, which would then be consistent with medium work

as performed. The second position, she indicated she was

performing work activity as a machine operator. Based upon this

description of the claimant’s job duties, it would be described in

the DOT as cutting machine operator, which would be a medium,

semi-skilled position with an svp of three. The claimant again

lifted—indicated lifting up to 25 pounds, which would then be

consistent with medium work as performed. Lastly, we have her

work activity with Walmart. Based upon the file information, the

claimant indicated that she was a stock clerk, and this is defined

in the DOT as heavy, semi-skilled, with an svp of four. Based

upon the file information, the claimant indicated lifting up to 10

pounds, which would place the position into light work as

performed.

(Admin. Tr. 50-51; Doc. 8-2, pp. 51-52).

In his decision, the ALJ concluded that “[t]he claimant has no past relevant

work.” (Admin. Tr. 21; Doc. 8-2, p. 22). No explanation for this finding is included

in the decision.

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Plaintiff argues:

5. In the most recent notice of Decision – Unfavorable, dated December

13, 2018, Finding of Fact and Conclusion of Law no. 5 on page 10,

attached hereto and marked as Exhibit A and incorporated by reference

herein, the Administrative Law Judge found “The claimant has no past

relevant work”.

6. In fact, the Plaintiff had returned to work after the last Notice of

Decision – Unfavorable dated December 13, 2018, and had worked for

a period of approximately one (1) year at the Lock Haven McDonald’s

before having to terminate employment due to physical issues of her

hands and back and a sexual harassment issue which mentally she was

unable to deal with.

. . . .

8. . . . The Vocational Expert in this case testified that the Claimant did

have prior employment including a cook at McDonald’s, a machine

operator at Smurfit Stone and a stocker at Walmart. The McDonald’s

job was medium SVP of 5, the machine operator job was a medium job

SVP of 3, and the Walmart stocker job was a heavy job with SVP of 4.

(Doc. 12, pp. 5-6).

The Commissioner does not respond to this argument.

At step four of the sequential evaluation process, the ALJ considers whether

a claimant can engage in his or her past relevant work. 20 C.F.R. § 416.920(4)(iv).

If a claimant can do his or her past relevant work, the claimant is found not disabled

at step four. Id. In this case, the ALJ found that Plaintiff had no past relevant work.

Essentially, he ruled in Plaintiff’s favor and continued on to step five of the

sequential evaluation process. Thus, assuming the ALJ erred by failing to discuss

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Plaintiff’s past employment in the decision, this error had no impact on the outcome

of the case because the ALJ continued to step five. “No principle of administrative

law “require[s] that we convert judicial review of agency action into a ping-

pong game” in search of the perfect decision.” Coy v. Astrue, No. 8-1372, 2009 WL

2043491 at *14 (W.D.Pa. Jul. 8, 2009)(citing NLRB v. Wyman–Gordon Co., 394

U.S. 759, 766 n. 6 (1969)). I am not persuaded that remand is required to address an

issue that had no bearing on the outcome of this case. To the extent the ALJ erred at

step four, this error is harmless.

V. CONCLUSION

Accordingly, I find that that Plaintiff’s request for award benefits, or in the

alternative remand with instructions to conduct a new administrative hearing is

DENIED as follows:

(1) The final decision of the Commissioner is AFFIRMED.

(2) Final judgment will be issued in favor of the Commissioner of the Social

Security Administration.

(3) An appropriate order will follow.

Date: January 20, 2021 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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