United States District Court, W.D. Pennsylvania
N. Bloch United States District Judge
NOW, this 23rd day of March, 2017, upon
consideration of the parties= cross-motions for summary
judgment, the Court, upon review of the Acting 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 Acting
Commissioner's findings are supported by substantial
evidence and, accordingly, affirms. See 42 U.S.C.
§ 405(g); Jesurum v. Secretary of U.S. Dep't of
Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d
Cir. 1992), cert. denied sub nom., 507 U.S. 924
(1993); 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.
techniques and not inconsistent with other substantial
evidence in the record. See 20 C.F.R. §
404.1527(c)(2); Fargnoli, 247 F.3d at 43;
Plummer, 186 F.3d at 429. As a result, the ALJ may
reject a treating physician's opinion outright only on
the basis of contradictory medical evidence, and not on the
basis of the ALJ's own judgment or speculation, although
he “may afford a treating physician's opinion more
or less weight depending upon the extent to which supporting
explanations are provided.” Plummer, 186 F.3d
Here, the ALJ included in his decision a thorough discussion
as to why Dr. Jander's opinion was not entitled to
controlling weight. As the ALJ explained, Dr. Jander's
opinion of Plaintiff's right wrist limitations set forth
on the Questionnaire was inconsistent with his own treatment
records and other objective findings in the record, as well
as with Plaintiff's self-reported activities of daily
living. (R. 36-37). Notably, Dr. Jander's treatment
records do not provide support for the lifting limitations he
identified on the Questionnaire or for his prediction that
Plaintiff may miss work more than four days per month. (R.
446, 448). Following two surgeries on Plaintiff's right
wrist, (R. 329, 348), Dr. Jander's records show that
although Plaintiff continued to experience some pain, his
hand was “tremendously better, ” and he had
comfortable or functional range of motion. (R. 296, 304, 306,
310, 311, 313, 342, 344, 345, 507). Dr. Jander even commented
that Plaintiff was “not preclude[d] from pursuing work
through vocational rehabilitation.” (R. 297).
Dr. Jander's opinion also was inconsistent with the
opinion of the state agency physician, which the ALJ
concluded was entitled to significant probative weight
because it was supported by the medical evidence of record.
(R. 36). Plaintiff disagrees with the ALJ's decision to
afford weight to this opinion because the state agency
physician only reviewed Plaintiff's records and did not
examine him. Although, in general, “the opinions of a
doctor who has never examined a patient have less probative
force as a general matter, than they would have had if the
doctor had treated or examined him, ” Morales v.
Apfel, 225 F.3d 310, 320 (3d Cir. 2000) (internal
quotations omitted), where “the opinion of a treating
physician conflicts with that of a non-treating,
non-examining physician, the ALJ may choose whom to
credit.” Id. at 317. Of course, the ALJ
“‘cannot reject evidence for no reason or for the
wrong reason, '” Id. (quoting
Plummer, 186 F.3d at 429), and can only give the
opinion of a non-treating, non-examining physician weight
insofar as it is supported by evidence in the case record,
considering such factors as the supportability of the opinion
in the evidence, the consistency of the opinion with the
record as a whole, including other medical opinions, and any
explanation provided for the opinion. See SSR 96-6p,
1996 WL 374180, at *2 (July 2, 1996). In certain cases, it
would not be unwarranted to give more weight to the
non-examining professional's opinion. The record here
establishes that the ALJ certainly could give more weight to
the opinion of the state agency physician than to that of Dr.
Jander. Regardless, the ALJ's decision does not hinge
solely on the state agency physician's opinion, but
rather relies on the objective medical evidence as a whole.
(R. 33-36). See Chandler v. Comm'r of Soc. Sec.,
667 F.3d 356, 361-62 (3d Cir. 2011) (finding that the ALJ
properly relied on the state agency medical consultant's
RFC assessment in support of his decision to deny the
claimant's application for benefits, noting that the ALJ
did not merely rubber stamp the medical consultant's RFC
determination, but rather considered the evidence as a
whole). Accordingly, the ALJ did not err in his treatment of
the state agency physician's opinion.
the ALJ properly considered and gave some probative weight to
a functional capacity evaluation by a physical therapist, (R.
36, 276-85), despite Plaintiff's complaint that a
physical therapist is not an acceptable medical source who is
qualified to comment on his physical capabilities. In
assessing opinion evidence, the ALJ may consider evidence
about a claimant's impairments and ability to work from
other medical sources who are not deemed “acceptable
medical sources, ” such as therapists, nurse
practitioners, physicians' assistants, chiropractors and
audiologists. 20 C.F.R. § 404.1513(d)(1). SSR 06-03p
clarifies how opinions from these other medical sources
should be considered, explaining that they may provide
insight into the severity of an impairment and how it affects
an individual's ability to function. See SSR
06-03p, 2006 WL 2329939, at *1, *2 (Aug. 9, 2006). When
evaluating such evidence, the ALJ “generally should
explain the weight given to opinions from these ‘other
sources, ' or otherwise ensure that the discussion of the
evidence in the determination or decision allows a . . .
subsequent reviewer to follow the [ALJ's] reasoning . . .
.” Id. at *6. Here, the ALJ considered the
functional capacity evaluation by the physical therapist and
explained that it was entitled to some probative weight
because it was consistent with and supported by the medical
evidence of record. (R. 36). The ALJ's discussion of this
other medical source opinion was sufficient to allow the
Court to review the ALJ's decision and conclude that it
also is no merit to Plaintiff's assertion that the ALJ
failed to fully develop the record because he did not request
a consultative examination to evaluate Plaintiff's
anxiety and problems with his feet. As the Third Circuit has
explained, an ALJ's duty to develop a full and fair
record “is most acute where the claimant is
unrepresented, ” Turby v. Barnhart, 54
Fed.Appx. 118, 122 (3d Cir. 2002) (citing Livingston v.
Califano, 614 F.2d 342, 345 (3d Cir. 1980)), and here
Plaintiff was represented by counsel. (R. 46). Accordingly,
Plaintiff's counsel could have proffered any evidence he
wished to submit to establish the functional limitations
resulting from Plaintiff's claimed impairments.
See 20 C.F.R. § 404.1740(b)(1) (stating that a
claimant's representative must help obtain the
information and evidence that the claimant must submit for
consideration of his claim). Regardless, the ALJ had no basis
upon which to further inquire concerning anxiety because, as
already discussed, the ALJ properly found Plaintiff's
anxiety does not constitute a severe impairment. Further, no
additional inquiry was required concerning Plaintiff's
problems with his feet because the ALJ accounted for any
resulting limitations by including in the RFC assessment a
sit/stand option and a restriction for only occasional
postural maneuvers and no climbing of ladders, ropes and
scaffolds. (R. 32).
challenge to the ALJ's evaluation of his credibility also
lacks merit. Plaintiff's primary contention is that the
ALJ's analysis failed to consider properly what Plaintiff
characterizes as his limited participation in activities of
daily living. While it is well established that
“sporadic or transitory activity does not disprove
disability, ” Smith v. Califano, 637 F.2d 968,
971-72 (3d Cir. 1981), Plaintiff's daily activities did
not qualify as such. Those activities included Plaintiff
caring for his own personal needs, managing personal
finances, preparing simple meals, assisting with household
tasks, driving, going outside on a daily basis, practicing
target shooting, visiting with friends, using a computer,
reading and watching television, (R. 50-51, 59, 64-67,
211-213), which, as the ALJ observed, demonstrated a level of
activity incompatible with Plaintiff's allegation of
total disability. Nonetheless, the ALJ did not judge
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary
Judgment (Doc. No. 10) is DENIED and Defendant's Motion
for Summary Judgment (Doc. No. 12) is GRANTED.
 The Court finds no merit in
Plaintiff's various arguments that the Administrative Law
Judge (“ALJ”) erred in his analysis at Steps Two
and Five of the sequential evaluation process, and concludes
that substantial evidence supports the ALJ's decision
that Plaintiff is not disabled within the meaning of the
Social Security Act.
Plaintiff first asserts that the ALJ erred in finding
that his history of transient ischemic attack
(“TIA”) and anxiety do not constitute severe
impairments at Step Two of the sequential evaluation process.
However, Plaintiff fails to acknowledge that the Step Two
determination as to whether he 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 of Soc. Sec., 229 Fed.Appx. 140, 145 n.2 (3d
Cir. 2007); Lee v. Astrue, 2007 WL 1101281, at *3
n.5 (E.D. Pa. Apr. 12, 2007); Lyons v. Barnhart,
2006 WL 1073076, at *3 (W.D. Pa. Mar. 27, 2006). Since the
ALJ found that Plaintiff had a number of severe impairments
and his claim was not denied at Step Two, it does not matter
whether the ALJ correctly or incorrectly found
Plaintiff's TIA and anxiety to be non-severe.
Nevertheless, the ALJ did not err in concluding that
Plaintiff's TIA and anxiety are not severe impairments.
The Social Security Regulations and Rulings, and case law
applying them, discuss the Step Two severity determination in
terms of what is “not severe.” Newell v.
Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir.
2003) (citing Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996)). According to the Regulations, an impairment
“is not severe if it does not significantly limit [the
claimant's] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1521(a). Although the
burden on an applicant at Step Two is not an exacting one,
Plaintiff nonetheless bears the burden to prove that his
claimed impairments are severe. Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987) (stating that the claimant bears
the burden of proof at Step Two of the ...