The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRENDA LEE SANDER, : CIVIL NO: 1:21-CV-00636
:
Plaintiff, : (Magistrate Judge Schwab)
:
v. :
:
KILOLO KIJAKAZI, Acting :
Commissioner of Social Security,1 :
:
Defendant. :
:
MEMORANDUM OPINION
I. Introduction.
This is a social security action brought under 42 U.S.C. § 405(g). The
plaintiff, Brenda Lee Sander (“Sander”), seeks judicial review of the final decision
of the Commissioner of Social Security (“Commissioner”) denying her claims for
supplemental security income under Title XVI of the Social Security Act. We
have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set
1 Kilolo Kijakazi is now the Acting Commissioner of Social Security, and
she is automatically substituted as the defendant in this action. See Fed. R. Civ. P.
25(d) (providing that when a public officer sued in his or her official capacity
ceases to hold office while the action is pending, “[t]he officer’s successor is
automatically substituted as a party”); 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).
forth below, the Commissioner’s decision will be affirmed, and judgment will be
entered in favor of the Commissioner.
II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 15-1 to
15-10.2 On November 1, 2018, Sander protectively filed3 an application for
supplemental security income, alleging disability beginning on May 23, 2012.
Admin. Tr. at 35. The Commissioner denied the claim on May 21, 2019, and again
on reconsideration on October 16, 2019. Id. at 15. Thereafter, Sander requested an
administrative hearing. Id. On April 8, 2020, Sander, who was represented by
attorney Jo Ann Kelton, testified at a hearing before Administrative Law Judge
(“ALJ”) Charles A. Dominick. Id. at 33–61. Josephine Doherty, a vocational
expert, also testified at the hearing. Id. at 56–60.
The ALJ determined that Sander was not disabled and, therefore, denied
Sander benefits. Id. at 12–27. Sander appealed the ALJ’s decision to the Appeals
2 Because the facts of this case are well known to the parties, we do not
repeat them here in detail. Instead, we recite only those facts that bear on Sander’s
claims.
3 “Protective filing is a term for the first time an individual contacts the
Social Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No.
3:16-CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A
protective filing date allows an individual to have an earlier application date than
the date the application is actually signed.” Id.
Council, which denied her request for review on February 3, 2021. Id. at 1–3. This
makes the ALJ’s decision the final decision of the Commissioner subject to
judicial review by this Court.
On April 6, 2021, Sander, now represented by Jamie R. Hall, began this
action by filing a complaint claiming that the Commissioner’s decision is not
supported by substantial evidence and is contrary to law and regulation.
Doc. 1 at ¶ 8. Sander requests that the court reverse and set aside the
Commissioner’s decision or, in the alternative, remand the case for a further
hearing with a different ALJ. Id. at 2.
The parties consented to proceed before a magistrate judge pursuant to 28
U.S.C. § 636(c), and the case was referred to the undersigned. Doc. 11. The
Commissioner then filed an answer and a certified transcript of the administrative
proceedings. Docs. 14, 15. The parties filed briefs, see docs. 18, 23, 24, and this
matter is ripe for decision.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, “the court has plenary review of all legal issues decided by
the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
But the court’s review of the Commissioner’s factual findings is limited to whether
substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.
Berryhill, 139 S. Ct. 1148, 1152 (2019). “[T]he threshold for such evidentiary
sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of
New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence “is less than a preponderance of the evidence but more
than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,
48 F.3d 114, 117 (3d Cir. 1995). 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 conclusions from the evidence does not prevent [the ALJ’s] finding
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 Sander was
disabled, but whether substantial evidence supports the Commissioner’s finding
that she was not disabled and whether the Commissioner correctly applied the
relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ.
To receive benefits under Title XVI of the Social Security Act, a claimant
generally must demonstrate an inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 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 work that exists in the
national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a). Unlike
with disability insurance benefits under Title II of the Social Security Act,
“[i]nsured status is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits” under Title XVI of the Social Security Act.
Snyder v. Colvin, No. 3:16-CV-01689, 2017 WL 1078330, at *1 (M.D. Pa. Mar.
22, 2017). Supplemental Security Income “is a federal income supplement
program funded by general tax revenues (not social security taxes)” “designed to
help aged, blind or other disabled individuals who have little or no income.” Id.
The ALJ follows a five-step sequential-evaluation process to determine
whether a claimant is disabled. 20 C.F.R. § 416.920. 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)(i)–(v).
The ALJ must also assess a claimant’s RFC at step four. Hess v. Comm’r of
Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“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)
(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 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
impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§ 416.945(a)(2).
“The claimant bears the burden of proof at steps one through four” of the
sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d
Cir. 2010). But at step five, “the burden of production shifts to the Commissioner,
who must . . . show there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual functional
capacity.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significantly, the ALJ must provide “a clear and satisfactory
explication of the basis on which” his or her decision rests. Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981). “The 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. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The
“ALJ may not reject pertinent or probative evidence without explanation.” Johnson
v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the
reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).
IV. The ALJ’s Decision.
On April 29, 2020, the ALJ denied Sander’s claims for benefits. Admin. Tr.
at 12–27. At step one of the sequential-evaluation process, the ALJ found that
Sander had not engaged in substantial gainful activity since the date of her
application for benefits. Id. at 17.
At step two of the sequential-evaluation process, the ALJ found that Sander
had the following severe impairments: fibromyalgia, degenerative disc
disease/splondylosis of the lumbar spine, and degenerative disc disease/kyphosis of
the thoracic spine. Id. The ALJ further found that Sander had the following non-
severe impairments: asthma, chronic obstructive pulmonary disease, emphysema,
and anxiety. Id. at 17–18.
At step three of the sequential-evaluation process, the ALJ found that Sander
did not have an impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at
20.
The ALJ then determined that Sander has the RFC to perform light work. Id.
The ALJ found that Sander “must be given the opportunity to alternate between
sitting and standing at least every 30 minutes.” Id. The ALJ determined that
Sander “is limited to occasional balancing, stooping, kneeling, crouching, and
climbing on ramps and stairs,” but may not crawl or climb “on ladders, ropes, or
scaffolds.” Id. Further, the ALJ concluded that Sander must avoid “unprotected
heights and dangerous moving machinery” as well as “overhead reaching with the
bilateral upper extremities.” Id. Per the ALJ’s opinion, Sander is limited to only
the “occasional use of foot controls.” Id. Finally, the ALJ noted that Sander “must
avoid concentrated exposure to dusts, fumes, gases, and other pulmonary irritants”
and “exposure to extreme temperatures, extreme humidity, wetness, or vibration.”
Id. at 21. In making this RFC assessment, the ALJ reviewed Sander’s symptoms
as well as the objective medical evidence in the record. Id. Additionally, the ALJ
considered the “medical opinion(s) and prior administrative medical finding(s) in
accordance with the requirements of 20 CFR 416.920c.” Id.
At step four of the sequential-evaluation process, the ALJ found that Sander
had no past relevant work. Id. at 26.
At step five of the sequential-evaluation process, considering Sander’s age,
education, work experience, and RFC, as well as the testimony of a vocational
expert, the ALJ found that there were jobs—such as routing clerk, information
clerk, and mail clerk—that exist in significant numbers in the national economy
that Sander could perform. Id.
In sum, the ALJ concluded that Sander was not disabled. Id. at 27. Thus, he
denied Sander’s claims for benefits. Id. at 12.
V. Discussion.
Sander raises two issues on appeal. First, Sander claims that the ALJ’s RFC
determination is not supported by substantial evidence because the ALJ improperly
applied the relevant law and relied on “mischaracterization and selective
consideration of the medical evidence.” Doc. 18 at 8. Second, Sander claims that
the ALJ failed to incorporate her non-severe mental impairments into the RFC
assessment. Id. For the reasons discussed below, we conclude that the ALJ erred
in only one respect—by failing to perform a detailed assessment of Sander’s
mental impairments at step four—but such error was harmless.
A. The ALJ’s RFC determination is supported by substantial
evidence because the ALJ properly applied the relevant law and
did not rely on mischaracterized or selective evidence.
In the first issue raised on appeal, Sander claims that the ALJ’s RFC
determination is not supported by substantial evidence because the ALJ improperly
applied the relevant law. “[I]t has been held that an ALJ's errors of law denote a
lack of substantial evidence.” Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL
940205, at *1 (M.D. Pa. Mar. 11, 2014). Sander claims that the ALJ did not
adequately explain how he considered the supportability and consistency factors in
evaluating the persuasiveness of the medial opinions of Maureen Polakowski,
CRNP, DNP (“Dr. Polakowski”), and Ahmed Kneifati, M.D. (“Dr. Kneifati”).
“Prior to March 2017, ALJs were required to follow regulations that defined
medical opinions narrowly and created a hierarchy of medical source opinions with
treating sources at the apex of this hierarchy.” Moore v. Kijakazi, No. 1:21-CV-
1769, 2023 WL 1973210, at *8 (M.D. Pa. Feb. 13, 2023). Since March 2017, the
approach to evaluating medical opinions “was changed from a hierarchical form of
review to a more holistic analysis.” Id. Under the post-March 2017 regulations,4
the ALJ evaluates the persuasiveness of medical opinions and prior administrative
medical findings using the following factors: (1) supportability, (2) consistency,
(3) relationship with claimant, (4) specialization, and (5) other factors. 20 C.F.R.
§ 416.920c(c). The most important factors are supportability and consistency. 20
C.F.R. § 416.920c(a). As such, the ALJ must specifically explain how he or she
“considered the supportability and consistency factors for a medical source’s
medial opinions or prior administrative medical findings in” his or her
determination or decision. 20 C.F.R. § 416.920c(b)(2). The ALJ may, but is not
required to, explain how he or she considered the remaining three factors in
determining the persuasiveness of a medical opinion. 20 C.F.R. § 416.920c(b)(2).
Supportability and consistency are defined in 20 C.F.R. § 416.920c(c). As
the regulation provides, supportability means: “The more relevant the objective
4 Because Sander filed on November 1, 2018, the post-March 2017
regulations apply.
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s)
will be.” 20 C.F.R. § 416.920c(c)(1). “Simply put, supportability is an inquiry
geared toward assessing how well a medical source supported and explained their
opinion(s).” Acosta Cuevas v. Commissioner of Social Security, No. 20-CV-0502,
2021 WL 363682, at *10 (S.D.N.Y. Jan. 29, 2021). On the other hand, consistency
means: “The more consistent a medical opinion(s) or prior administrative medical
finding(s) is with the evidence from other medical sources and nonmedical sources
in the claim, the more persuasive the medical opinion(s) or prior administrative
medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(2). The consistency factor
focuses on “how well a medical source is supported, or not supported, by the entire
record.” Acosta Cuevas, 2021 WL 363682, at *10. Against this backdrop, we
address the ALJ’s consideration of Dr. Polakowski and Dr. Kneifati’s opinions in
turn.
1. The ALJ adequately explained how he considered the
supportability and consistency factors in evaluating the
medical opinion of Dr. Polakowski.
The ALJ found the opinion of Dr. Polakowski to be not persuasive. Admin.
Tr. at 25. Per the regulations, the ALJ was required to discuss his consideration of
the supportability and consistency factors in making this determination. 20 C.F.R.
§ 416.920c(a).
In assessing Dr. Polakowski’s opinion, the ALJ noted the following:
A physical impairment questionnaire was completed by [Dr.]
Polakowski, CRNP, DNP on February 25, 2020 (Exhibit 18F).
[Dr.] Polakowski noted the claimant’s impairments would
constantly interfere with attention and concentration required to
perform simple work-related tasks, and she would need to
recline or lie down in excess of typical break times during an 8-
hour workday. She could walk less than one block, sit, stand, or
walk 5 minutes each at one time, and the claimant would be
able to sit, stand, or walk 0 hours in an 8-hour workday. The
claimant would need to take unscheduled breaks at least every
hour. She could lift and carry less than 10 pounds. Additionally,
[Dr.] Polakowski noted the claimant would have limitations in
reaching, handling or fingering, although she noted she was
unable to determine use of hands, fingers, and arms because
they had not been assessed. She reported the claimant would be
absent from work more than four times a month. However,
[Dr.] Polakowski noted the claimant would be physically
capable of working an 8-hour day, 5 days a week, on a
sustained basis (Id.) The undersigned finds the opinion of [Dr.]
Polakowski not persuasive. The limitations opined, and
particularly the sit/stand/walk limitations are internally
inconsistent and not supported by the medical evidence of
record, including relatively benign clinical findings (Exhibits
7F, 12F, and 14F) and no significant limitations on diagnostic
imaging that would support these findings. (see, e.g. Exhibit
17F, p. 24).
Admin. Tr. at 25. Here, the ALJ addressed his consideration of both the
supportability and consistency factors. With respect to supportability, the ALJ
found Dr. Polakowski’s opinion “internally inconsistent.” Id. For example, the
ALJ referred to Dr. Polakowski’s report that Sander “would be absent from work
more than four times a month,” but also reporting that Sander would be “physically
capable of working an 8-hour day, 5 days a week, on a sustained basis.” Id. Thus,
in finding Dr. Polakowski’s opinion internally inconsistent, the ALJ considered
how well Dr. Polakowski supported and explained her opinion. With respect to
consistency, the ALJ maintained that Dr. Polakowski’s opinion was not supported
by the record, including “relatively benign clinical findings (Exhibits 7F, 12F, and
14F) and no significant limitations on diagnostic imaging that would support these
findings. (see, e.g. Exhibit 17F, p. 24).” Id. Thus, the ALJ cited to specific
evidence in the medical record to support his conclusion.
In challenging the ALJ’s consideration of the consistency factor, Sander
claims that the ALJ erred in citing to the diagnostic imaging. Doc. 18 at 11–12.
Even if we were to accept this argument, however, the ALJ still cited to other
medical records that showed “relatively benign clinical findings.” Admin. Tr. at 25
(citing Exhibits 7F, 12F, 14F). Thus, even if we cast the diagnostic imaging
evidence aside, the ALJ still satisfied his obligations under the regulations because
he cited other records that were inconsistent with Dr. Polakowski’s opinion:
Exhibits 7F, 12F, and 14F. Id. And the ALJ referenced them elsewhere in his
opinion. See id. at 22–23 (“X-rays of the claimant’s lumbar spine from March 15,
2019[,] show only mild multilevel spondylosis with mild grade 1 spondylolisthesis
of L4-L5. . . . A subsequent MRI of he claimant’s thoracic spine from June 21,
2019[,] was normal. . . . Likewise, x-rays of the claimant’s knees from March 15,
2019 was [sic.] unremarkable. . . . The claimant’s longitudinal records show
subjective complaints, as well as evidence of impairments such as…chronic
obstructive pulmonary disease, and gastro-esophageal reflux disease, however, her
treatment was conservative and no significant functional limitations were
identified. . . . The pulmonary function test was consistent with mild obstructive
airway disease secondary to emphysema.” (internal citations omitted)).
Accordingly, we find that the ALJ properly considered the supportability and
consistency factors in evaluating the medical opinion of Dr. Polakowski.
2. The ALJ adequately explained how he considered the
supportability and consistency factors in evaluating the
medical opinion of Dr. Kneifati.
The ALJ found the opinion of Dr. Kneifati not to be persuasive. Admin. Tr.
at 25. As mentioned previously, the regulations require that the ALJ address both
supportability and consistency in evaluating the persuasiveness of Dr. Kneifati’s
opinion. 20 C.F.R. § 416.920c(a). In assessing Dr. Kneifati’s opinion, the ALJ
stated the following:
Consultative examiner Ahmed Kneifati, M.D. completed a
Medical Source Statement of Ability to Do Work Related
Activities (Physical) on February 23, 2019 (Exhibit 8F, pp. 8–
13). Dr. Kneifati opined the claimant could lift and/or carry up
to 10 pounds occasionally. At one time, she could sit for 2
hours, stand for 1 hour, and walk for 10 minutes each. Total, in
an 8-hour workday, she could sit for 4 hours, stand for 3 hours,
and walk for 2 hours each. She does not require a cane to
ambulate. Dr. Kneifati opined the claimant could continuously
use her bilateral hands, but she is limited to occasionally using
her feet bilaterally. She could frequently kneel, crouch, crawl,
and climb ramps and stairs, but never climb ladders, ropes, or
scaffolds, balance, or stoop. She is limited to occasional
exposure to unprotected heights, moving mechanical parts,
operating a motor vehicle, humidity, wetness, extreme cold, and
extreme heat, but can never have exposure to dust, odors,
fumes, and pulmonary irritants. Additionally, she would be
unable to walk a block at a reasonable pace on rough or uneven
surfaces. The undersigned finds the opinion of Dr. Kneifati not
persuasive, as the doctor’s own examination of the claimant
showing no significant physical deficits, as well as the
longitudinal evidence of record showing benign findings, does
not support sit/stand/walk limitations to such extent (see, e.g.
Exhibits 7F, 12F, and 14F).
Admin. Tr. at 24–25. Here, the ALJ properly considered the supportability factor.
The ALJ noted that Dr. Kneifati’s conclusions as to Sander’s sit/stand/walk
limitations were inconsistent with Dr. Kneifati’s own examination of Sander that
showed “no significant physical deficits.” Id. Thus, we find that the ALJ assessed
how well Dr. Kneifati supported and explained his opinion.
With respect to consistency, the ALJ noted that Dr. Kneifati’s opinion as to
sit/stand/walk limitations was inconsistent with the “longitudinal evidence of
record.” Id. at 25. In drawing this conclusion, the ALJ again cited to the medical
record. Id. (citing Exhibits 7F, 12F, 14F). Thus, we find that the ALJ properly
considered the consistency factor in finding that Dr. Kneifati’s opinion was
inconsistent with the entire medical record.
Accordingly, we find that the ALJ properly considered the supportability
and consistency factors in evaluating the medical opinion of Dr. Kneifati.
3. The ALJ’s RFC determination did not rely on any
mischaracterization or selective consideration of the medical
evidence.
Sander asserts that the ALJ failed to address certain evidence that supports
Dr. Polakowski’s and Dr. Kneifati’s opinions.
As a general matter, “an ALJ cannot rely only on the evidence that supports
his or her conclusion, but also must explicitly weigh all relevant, probative, and
available evidence; and provide some explanation for a rejection of probative
evidence which would suggest a contrary disposition.” Voorhees v. Colvin, 215 F.
Supp. 3d 358, 384–85 (M.D. Pa. 2015). The “sort of evaluation, where the
evaluator mentions only isolated facts that militate against the finding of disability
and ignores much other evidence that points another way, amounts to a ‘cherry-
picking’ of the record which this Court will not abide.” Fanelli v. Colvin, No. 3:16-
CV-1060, 2017 WL 551907, at *9 (M.D. Pa. Feb. 10, 2017).
Sander claims that the ALJ erroneously characterized the medical record as
“benign,” ignoring the notations of Jack Michael Smith, M.D., and Georgios
Klironomos, M.D., who documented pain and tenderness in Sander’s thoracic
spine region. Doc. 18 at 13. But the ALJ did not ignore this evidence. See Admin.
Tr. at 22 (“Throughout the treatment records, while there is occasional notation of
tenderness to palpation, kyphosis and limited range of motion, the claimant’s
treatment providers repeatedly note full range of motion in bilateral hips, with no
deformity, but sensation diffusely diminished in the bilateral lower extremities
with 4/5 strength in the bilateral lower extremities, significant kyphosis of the
thoracic spine with tenderness to palpation to light touch and limited range of
motion of both flexion and extension in the spine (e.g. Exhibit 4F/3).”). Instead,
the ALJ found that the clinical findings were minimal and did not support the pain
and functional limitations alleged. Id.
Finally, Sander asserts that the ALJ mischaracterized the evidence to support
his finding that Dr. Kneifati’s opinion was unsupported and inconsistent with the
record. Doc. 18 at 15–16. The ALJ noted that Dr. Kneifati’s examination of
Sander revealed “no significant physical deficits.” Admin. Tr. at 25. Sander argues
that the ALJ mischaracterized this examination because Dr. Kneifati actually
observed “[Sander’s] difficulty walking on toes and heels, inability to fully squat,
bilaterally positive straight leg raising test in the supine position, tenderness at L4-
L5 and L5-S1, and limited range in motion of the lumbar spine.” Doc. 18 at 15.
In support of this argument, Sander cites to Malone v. Barnhart, No. 05-
2991, 2008 WL 4155707, at *4 (E.D. Pa. Aug. 14, 2008). In Malone, the ALJ
mischaracterized statements made by one doctor as statements made by another
doctor. Id. at *6. The ALJ then discredited the doctor, at least in part, because of
these misattributed statements. Id. The District Court found that attributing one
doctor’s statements to another doctor was a “mischaracterization” and caused the
ALJ to discredit Dr. Kauffman for the wrong reason. Id.
This case is not factually analogous to Malone. In this case, the ALJ simply
made a generalized statement about the totality of Dr. Kneifati’s examination.
Further, the ALJ did not suggest that Dr. Kneifati found no physical deficits.
Rather, the ALJ stated that Dr. Kneifati found no significant physical deficits.
Thus, the information Sander cites to may properly fall within this characterization
as present, but insignificant.
In conclusion we find that the ALJ’s RFC determination did not rely on any
mischaracterization or selective consideration of the medical evidence.
B. Although the ALJ failed to perform a more detailed assessment of
Sander’s mental limitations at step four, the ALJ nonetheless
incorporated Sander’s non-severe mental impairments into the
RFC assessment.
In the second issue raised on appeal, Sander maintains that the ALJ failed to
incorporate her non-severe mental impairments into the RFC assessment.
At step two of the sequential evaluation process, the ALJ found the
following medically determinable mental impairment: “anxiety/depression.”
Admin. Tr. at 18. In making this determination, the ALJ analyzed each of the four
broad functional areas of mental functioning found in the disability regulations
used to evaluate mental disorders: (1) understand, remember, or apply information,
(2) interact with others, (3) concentrate, persist, or maintain pace, and (4) adapt or
manage oneself. 20 C.F.R. § 404.1520a(c)(3). Because the ALJ rated the degree of
limitation in each of these areas as “mild,” he concluded that the claimant’s mental
impairments were non-severe. See 20 C.F.R. § 404.1520a(d)(1) (noting that, when
an ALJ finds no mental limitation or mild mental limitation, the ALJ generally
concludes that the mental impairment is not severe). After making this finding, the
ALJ noted that “[t]he following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the “paragraph B” mental
function analysis.” Admin. Tr. at 20.
But Social Security Ruling 96-8p provides that the criteria used to rate the
severity of mental impairments at steps two and three of the sequential evaluation
process are “not an RFC assessment.” SSR 96-8p, 1996 WL 374184, at *4. And “a
conclusion that the claimant’s mental impairments are non-severe at step two does
not permit the ALJ simply to disregard those impairments when assessing a
claimant's RFC and making conclusions at steps four and five.” Wells v. Colvin,
727 F.3d 1061, 1068–69 (10th Cir. 2013). Instead, “[t]he mental RFC assessment
used at steps four and five of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the broad
categories found in paragraphs B and C of the adult mental disorders listings in
12.00 of the Listing of Impairments, and summarized on the PRTF.” SSR 96-8p,
1996 WL 374184, at *4. And the ALJ must consider all limitations and
restrictions imposed by an individual’s impairments, whether severe or non-severe.
SSR 96-8p, 1996 WL 374184, at *5. And more, the “RFC assessment must
include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).” Id. at *7.
With this in mind, we conclude that the ALJ failed to adequately address the
claimant’s non-severe mental limitations in the RFC discussion. Although the ALJ
found “mild” limitations in each of the four broad functional areas of mental
functioning, the ALJ did not address each of these limitations in the RFC or
explain why these limitations did not affect the RFC. Moreover, as Sander points
out, the ALJ was required to provide a “more detailed assessment” of Sander’s
mental limitations at step four. In this case, the ALJ did not provide the requisite
function-by-function analysis required by the regulations.
Still, we must assess whether the ALJ’s error at step four was harmless.
“Ordinary harmless error review, in which the appellant bears the burden to
demonstrate harm, is applicable to administrative appeals.” Holloman v. Comm’r
of Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016). Thus, a claimant must explain
“‘how the . . . error to which he points could have made any difference.’” Id.
(quoting Shineski v. Sanders, 556 U.S. 396, 413 (2009)). “An error is ‘harmless’
when, despite the technical correctness of an appellant’s legal contention, there is
also ‘no set of facts’ upon which the appellant could recover.” Brown v. Astrue,
649 F.3d 193, 195 (3d Cir. 2011). Although an error may be harmless, we must be
mindful that “‘[t]he grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was based.’” Fargnoli, 19
247 F.3d at 44 n.7 (quoting Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80,
87 (1943)).
At the outset, we note that the ALJ did include some discussion of Sander’s
non-severe mental impairments in the RFC. Admin. Tr. at 23–24. The ALJ
concluded that “the record simply does not support any significant mental
functional limitations” and that there is no significant evidence “to establish mental
functional limitations due to her physical impairments or medications.” Id. at 23.
Of importance to the ALJ was the fact that, by December 2019, Sander had not
been on anxiety medication for 15 years and had likewise denied that her
“anxiety/depression symptoms affect her daily function or interaction with others.”
Id. at 23–24.
Sander has also not identified any record indicating treatment by a mental
practitioner that the ALJ failed to consider. To the contrary, the record indicates
that Sander has never received inpatient, outpatient, or emergency room treatment
from a mental health professional. Id. at 74. Still, Sander asserts that the ALJ’s
failure to include the more detailed analysis, alone, warrants remand. Doc. 18 at
17–18. We disagree. Sander has not explained how a more detailed discussion at
step four would have resulted in any functional limitations in the RFC. Sander
correctly points out that the ALJ is not obligated to find any functional limitation
in the RFC simply because he found mild limitations at step two. Delio v.
Commissioner of Social Sec., No. 13-78-E, 2014 WL 4414830, at *4 (W.D. Pa.
Sept. 8, 2014) (rejecting an argument that, because the ALJ found mild limitations
at step two, he was required to incorporate some restriction into the RFC).
We thus conclude that the ALJ’s failure to conduct a more detailed
assessment of Sander’s mental impairments at step four was harmless error.
VI. Conclusion.
For the foregoing reasons, we will affirm the decision of the Commissioner.
An appropriate order follows.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge