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Miller v. Colvin

United States District Court, M.D. Pennsylvania

March 6, 2015

EMMA MILLER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MALACHY E. MANNION, District Judge.

Pending before the court is the report and recommendation of Judge Schwab, (Doc. 16), recommending that plaintiff's appeal from the final decision of the Commissioner of Social Security be denied, and that the decision of the Commissioner be affirmed. Judge Schwab reviewed the record in this case pursuant to 42 U.S.C. §405(g) to determine whether there is substantial evidence to support the Commissioner's decision denying the plaintiff's claim for Disability Insurance Benefits ("DIB") under the Social Security Act, ("Act"). 42 U.S.C. §§401-433, 1381-1383f. The plaintiff, Emma Miller, has filed objections.[1] (Doc. 17). The defendant responded to plaintiff's objections. (Doc. 18). For the following reasons, the report and recommendation is ADOPTED and plaintiff's appeal of the decision of the defendant Commissioner will be DENIED.


When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) ( citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) ( citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

When reviewing the denial of disability benefits, the court must determine whether the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999), Johnson, 529 F.3d at 200. It is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). Furthermore, in determining if the ALJ's decision is supported by substantial evidence the court may not parse the record but rather must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).

To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. §423(d)(2)(A).


Judge Schwab's report and recommendation ("R&R") contains a thorough review of the plaintiff's medical history as well as the briefs of the parties. The plaintiff did not file any objection to Judge Schwab's factual determinations regarding her medical history, so they will be adopted. See Butterfield v. Astrue, 2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010) ("To obtain de novo determination of a magistrate[ ] [Judge's] findings by a district court, 28 U.S.C. §636(b)(1) requires both timely and specific objections to the report.") (quoting Goney v. Clark, 749 F.2d 5, 6 (3d Cir.1984)). The court will restrict its discussion below to the relevant medical background as it pertains to the plaintiff's objections. Also, since the five-step legal framework for addressing a disability claim was properly stated in the R&R, (Doc. 16, at 3-5), as well as the finding of the ALJ at each step, (Doc. 16, at 8), the court incorporates by reference these portions of the R&R.


The plaintiff raises five objections to the R&R claiming that errors were made regarding the following findings of Judge Schwab: (1) the finding that the Administrative Law Judge ("ALJ") properly determined that plaintiff's multiple impairments were non-severe; (2) the finding that the ALJ properly relied on the testimony of the vocational expert ("VE"); (3) the finding that the ALJ's decision that plaintiff did not meet Listing 12.04 for affective disorder was supported by substantial evidence; (4) the finding that the ALJ properly evaluated plaintiff's treating and examining physicians; and (5) the finding that the ALJ properly evaluated plaintiff's credibility. These five issues are essentially identical to the five issues plaintiff raised in her initial appeal regarding the decision of the ALJ denying her DIB claim that were addressed in the R&R. (Doc. 16, at 10-11). The court will now address plaintiff's objections.

A. Whether the ALJ Erred in Finding that Plaintiff's Multiple Impairments were Non-Severe

The ALJ found at step two that plaintiff's impairments of asthma, degenerative joint disease of the right knee and sleep disturbance were medically determinable but non-severe. Judge Schwab found in her R&R that even if the ALJ erred at step two by failing to find plaintiff's stated impairments were severe, his error is harmless since "the ALJ adequately accounted for the limitations caused by each of these non-severe impairments in his RFC assessment." (Doc. 16, at 13). Plaintiff takes issue with this finding and contends that her right knee impairment and sleep disturbance are [severe and] significant enough to affect her ability to do basic work activities." (Doc. 17, at 3). Plaintiff also states that Judge Schwab failed to explain how the ALJ accounted for the limitations caused by her impairments that were found to be non-severe, in his RFC assessment. (TR. 98). Defendant Commissioner responds that plaintiff failed to meet her burden to show that her right knee impairment and sleep apnea were severe medically determinable impairments that significantly limited her ability to do basic work activities. (Doc. 18, at 2).

In Sheehan v. Astrue, 2013 WL 1148351, *6 (E.D.Pa. Feb. 28, 2013), adopted by 2013 WL 1155294 (E.D.Pa. Mar. 20, 2013), the court discussed step two and stated:

Under the regulations at step two, a claimant has a severe impairment if he has "any impairment or combination of impairments which significantly limit [the claimant's] physical or mental ability to do basic work activities." FN5 20 C.F.R. §404.1520(c). "By contrast, a non-severe impairment has no more than a minimal effect' on the individual's ability to perform basic work activities." See Woodson, 2004 WL 1102363, at *6 (quoting SSR 85-28, 1985 WL 5685, at *3).
FN5. The regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs." Woodson v. Barnhart, 2004 WL 1102363, *6 (E.D.Pa. May 11, 2004) (quoting 20 C.F.R. §416.921(b)); see 20 C.F.R. §404.1521. Examples of basic work activities include, inter alia, mental functions such as: understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. §404.1521(b).
The Third Circuit has stated that although the substantial evidence standard applies at step two of the sequential evaluation, "[t]he burden placed on an applicant at step two is not an exacting one." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); see Mason v. Barnhart, 2004 WL 3019319, *1 (E.D.Pa. Dec.28, 2004). The Court of Appeals explained: "Although the regulatory language speaks in terms of severity, ' the Commissioner has clarified that an applicant need only demonstrate something beyond a slight abnormality or a combination of abnormalities ...

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