HOERNER v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD HOERNER, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-975

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

O R D E R

AND NOW, this 22nd day of March, 2022, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., finds that the Commissioner’s

findings are supported by substantial evidence and, accordingly, affirms. See 42 U.S.C. §

405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (2019); Jesurum v. Secretary of U.S. Dep’t

of Health & Human Servs, 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d

1211, 1213 (3d Cir. 1988)). See also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990)

(if supported by substantial evidence, the Commissioner’s decision must be affirmed, as a federal

court may neither reweigh the evidence, nor reverse, merely because it would have decided the

claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

1 Plaintiff’s argument centers around the findings of the Administrative Law Judge

(“ALJ”) in regard to his alleged mental health issues. Plaintiff asserts that the ALJ’s finding that

his mental impairments were not severe was based on an incomplete record because the record

contained no opinion evidence relevant to his mental impairments. He therefore contends that

the ALJ failed in her duty to fully and fairly develop the record in this case, primarily because

she did not request an opinion from his treating mental health care providers and did not request

a consultative examination and/or review of the record. The Court disagrees and finds that the

ALJ fully developed the record and that her finding that Plaintiff is not disabled is supported by

substantial evidence.

Plaintiff is correct that, although it is his burden to supply evidence in support of his

claim, the ALJ has a duty to develop a full and fair record in a social security case. See Ventura

v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995); Carmichael v. Barnhart, 104 Fed. Appx. 803, 805

(3d Cir. 2004); 20 C.F.R. §§ 404.1512(a) and (b); Money v. Barnhart, 91 Fed. Appx. 210, 215

(3d Cir. 2004) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). Nonetheless, the Court

finds that the ALJ fulfilled her duty to do so here. Specifically, the Court finds no basis for

finding that the record was such that the ALJ could not render a decision without seeking

additional opinion evidence.

Plaintiff first argues that the ALJ should have augmented the record by re-contacting

Plaintiff’s treating mental health care providers. While an ALJ may re-contact a physician, he or

she generally will do so only if the evidence is insufficient to determine disability or if the

evidence is so inconsistent that the ALJ cannot reach a conclusion. See 20 C.F.R. § 404.1520b;

see also Moody v. Barnhart, 114 Fed. Appx. 495, 501 (3d Cir. 2004) (explaining that it was not

necessary for the ALJ in that case to re-contact a treating psychiatrist because the medical

records contained sufficient evidence for the ALJ to make a decision); Hartman v. Colvin, No.

02:13-cv-265, 2014 WL 1784084, at *9 (W.D. Pa. May 5, 2014) (finding that the ALJ was not

required to re-contact a physician where there was no discrepancy in the record that the ALJ

needed to resolve). Nothing in the record here demonstrates any such insufficiency or

inconsistency. Plaintiff’s mental health care providers’ clinical notes are already part of the

record (See Exs. 10F, 12F, 17F,19F), as are the psychological findings included in Plaintiff’s

Workers’ Compensation Board Examination (Ex. 29F), and records from Plaintiff’s voluntary

inpatient psychiatric treatment at Nassau University Medical Center (Ex. 34F). The ALJ

specifically and thoroughly addressed all of these records. (R. 20-21, 24-26). Plaintiff’s only

real argument as to why these records were insufficient is to provide his own interpretation and

analysis of the evidence. However, it is not a federal court’s role to reweigh the evidence or to

reverse, merely because it would have decided the claim differently. See Berry, 738 F. Supp. at

944 (citing Cotter, 642 F.2d at 705). The ALJ’s consideration of the evidence was thorough and

in no way suggested the need for additional opinion evidence from Plaintiff’s mental health care

providers.

Plaintiff further suggests that the ALJ erred in not ordering a consultative examination to

be performed in regard to the functional limitations caused by his mental health impairments.

However, while an ALJ may order a consultative examination to resolve an inconsistency or if

the record is insufficient to render a decision, he or she is generally not required to do so. See 20

C.F.R. §§ 404.1519a, 404.1520b; Thompson v. Halter, 45 Fed. Appx. 146, 149 (3d Cir. 2002).

Generally, an ALJ is authorized to obtain a consultative examination “if the information needed

to make a disability determination, ‘such as clinical findings, laboratory tests, a diagnosis or a

prognosis’ cannot be obtained from the claimant’s medical sources.” Tuulaupua v. Colvin, Civ.

No. 14-1121, 2015 WL 5769984, at *6 (W.D. Pa. Sept. 30, 2015) (quoting 20 C.F.R. §§

404.1519a(a) and (b)). Such an examination may be ordered “to try to resolve an inconsistency

in the evidence or when the evidence as a whole is insufficient to support a determination or

decision on [the claimant’s] claim.” 20 C.F.R. § 404.1519a(b). The decision whether to order

such an examination is within the sound discretion of the ALJ. See Thompson, 45 Fed. Appx. at

149. This decision “should be firmly rooted in an assessment of the evidence as a whole.”

Woodman v. Berryhill, Civ. No. 3:17-cv-151, 2018 WL 1056401, at *5 (M.D. Pa. Jan. 30, 2018).

For essentially the same reasons stated above, there was no insufficiency or inconsistency in the

record that would suggest the need for a consultative examination and/or review of the record.

This is particularly true given an ALJ’s broad discretion in regard to this issue.

In short, the record here was not lacking in objective clinical findings as to Plaintiff’s

mental health; what it lacked was an opinion regarding Plaintiff’s functional limitations. To the

extent that Plaintiff believed an opinion from one of his treating physicians was probative, he

certainly could have attempted to obtain one. The Court cannot find, though, that the lack of

such opinion evidence necessitated a consultative examination or that it required the ALJ to re-

contact Plaintiff’s treating providers. The objective medical evidence in this case was quite

extensive, and the only “inconsistency” Plaintiff identifies is the inconsistency between his own

evaluation of the evidence and that of the ALJ. Under these circumstances, the Court finds that

substantial evidence supports the ALJ’s exercise of her discretion.

Although not directly stated, underlying Plaintiff’s argument seems to be a suggestion

that an ALJ’s findings must be based on a particular medical opinion. However, the Court

emphasizes that “[t]he ALJ – not treating or examining physicians or State agency consultants –

must make the ultimate disability and RFC determinations.” Chandler v. Comm’r of Soc. Sec.,

667 F.3d 356, 361 (3d Cir. 2011). “There is no legal requirement that a physician have made the

particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v.

Barnhart, 174 Fed. Appx. 6, 11 (3d Cir. 2006). See also Chandler, 667 F.3d at 362 (holding that

each fact incorporated into the RFC need not have been found by a medical expert). As the

Circuit Court explained in Titterington, “[s]urveying the medical evidence to craft an RFC is part

of an ALJ’s duties.” 174 Fed. Appx. at 11. Accordingly, an ALJ is not prohibited from making

a disability assessment even if no doctor has specifically made the same findings. See Hayes v.

Astrue, Civ. No. 07-710, 2007 WL 4456119, at *2 (E.D. Pa. Dec. 17, 2007); 20 C.F.R. §§

404.1527(d)(2), 404.1546(c); SSR 96-5p, 1996 WL 374183 (S.S.A.) (July 2, 1996). The ALJ’s

discussion of how she made the determination here was more than sufficient, and the Court holds

that substantial evidence supports her findings.

Finally, the Court notes that Plaintiff seems to imply that the ALJ’s finding that his

mental health impairments were not severe at Step Two of the five-part sequential analysis

further necessitates remand. However, the Step Two determination as to whether a claimant is

suffering from a severe impairment is a threshold analysis requiring the showing of only one

severe impairment. See Bradley v. Barnhart, 175 Fed. Appx. 87, 90 (7th Cir. 2006). In other

words, as long as a claim is not denied at Step Two, it is not generally necessary for the ALJ

specifically to have found any additional alleged impairment to be severe. See Salles v. Comm’r

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (document No. 17) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 19) is GRANTED as stated herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007); Lee v. Astrue, Civ. No. 06-5167, 2007

WL 1101281, at *3 n.5 (E.D. Pa. Apr. 12, 2007); Lyons v. Barnhart, Civ. No. 05-104, 2006 WL

1073076, at *3 (W.D. Pa. Mar. 27, 2006); Gerald v. Berryhill, No. 3:17-CV-00575, 2018 WL

7364649, at *5 (M.D. Pa. Oct. 12, 2018), report and recommendation adopted, No. CV 3:17-

575, 2019 WL 719829 (M.D. Pa. Feb. 19, 2019). Since Plaintiff’s claim was not denied at Step

Two, it does not matter whether the ALJ correctly or incorrectly found Plaintiff’s mental health

impairments to be non-severe.

What matters is whether the ALJ properly accounted for any such issues in formulating

Plaintiff’s residual functional capacity (“RFC”). In assessing a claimant’s RFC, the ALJ “must

consider limitations and restrictions imposed by all of an individual’s impairments, even those

that are not ‘severe.’” S.S.R. 96-8p, 1996 WL 374184 (S.S.A.), at *5 (July 2, 1996). See also 20

C.F.R. § 404.1545(a)(2). “While a ‘not severe’ impairment(s) standing alone may not

significantly limit an individual’s ability to do basic work activities, it may – when considered

with limitations or restrictions due to other impairments – be critical to the outcome of a claim.”

S.S.R. 96-8p at *5. Accordingly, merely because the ALJ did not find Plaintiff’s mental health

conditions to be severe impairments does not mean that these conditions could not still have

affected Plaintiff’s RFC. However, the ALJ expressly stated that she did consider Plaintiff’s

non-severe mental health impairments in formulating the RFC. (R. 21). Her discussion of these

conditions, in fact, was particularly thorough. (R. 20-21, 24-26). Indeed, she included a specific

limitation in the RFC – the restriction to unskilled work – to account for these impairments. (R.

26).

Accordingly, for all of the reasons set forth herein, the Court finds that substantial

evidence supports the ALJ’s decision and therefore affirms.