United States District Court, W.D. Pennsylvania
N. BLOCH UNITED STATES DISTRICT JUDGE
NOW, this 20th day of September, 2017, 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., and denying Plaintiff's claim for supplemental
security income benefits under Subchapter XVI of the Social
Security Act, 42 U.S.C. § 1381, et seq., finds
that the Commissioner's findings are supported by
substantial evidence and, accordingly, affirms. See
42 U.S.C. § 405(g); Jesurum v. Sec'y 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. 1981)).
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary
Judgment (Doc. No. 12) is DENIED and that Defendant's
Motion for Summary Judgment (Doc. No. 14) is GRANTED.
 Plaintiff's arguments revolve
around whether Natalie Appetta, the Administrative
Judge (“ALJ”) in the present case,
properly relied on a prior decision included in the record of
this case issued by ALJ Joanna Papazekos pertaining to an
earlier application for social security benefits filed by
Plaintiff. In her January 10, 2013 decision, the prior ALJ
had found that IQ test scores obtained in December of 2010
during a consultative examination related to the prior
application were invalid, primarily because she found that
Plaintiff was under the influence of alcohol and marijuana at
the time he was tested. Plaintiff apparently believes that
ALJ Appetta's reliance on nothing more than a prior
ALJ's decision is improper based on his claim of
borderline intellectual functioning in connection with the
present application. The Court finds that there was nothing
improper regarding ALJ Appetta's reliance on ALJ
Papazekos' decision and that substantial evidence
supports the ALJ's finding that Plaintiff is not
Plaintiff was subjected to IQ testing at a
consultative examination with Stephen Perconte, Ph.D., in
connection with his previous application for benefits in
2010. As noted, ALJ Papazekos rejected the scores from that
test, providing an extensive explanation for doing so. She
noted that Plaintiff, at the consultative examination, had
admitted to smoking marijuana and drinking 12 beers a day.
She further discussed how Dr. Perconte had found that
Plaintiff, in fact, had a significant amount of marijuana and
alcohol in his system at the time and that the IQ scores
obtained during that exam should be viewed with caution. (R.
91, 94-95). ALJ Appetta, in this case, referenced the 2010 IQ
scores and adopted by reference ALJ Papazekos' finding
that the scores were invalid. (R. 18, 23).
There is no new evidence in the instant case regarding
these scores or their validity, or of any new testing or
scores since then. Indeed, the scores are no more than
referenced in the record before ALJ Appetta and before this
Court. Consultative examiner Ruth Ann Seilhamer, Ph.D., made
fleeting reference to Plaintiff's IQ scores from 2010,
but Dr. Seilhamer offered no opinion or evidence as to their
validity in light of the reason why the 2010 scores had been
discounted in the first place, i.e., that Plaintiff
was impaired when tested. Indeed, she did not even
demonstrate any awareness that the scores had been
invalidated. (R. 408).
There is no inherent problem with an ALJ relying on
factual findings by another ALJ from previous hearings
involving the same claimant. See Leonard v. Comm'r of
Soc. Sec., 409 Fed.Appx. 298, 299 (11th Cir.
2011). Indeed, courts have readily allowed ALJs in social
security cases to incorporate by reference and rely on
findings and analysis contained in a previous ALJ's
decision involving the claimant, particularly when there is
no new evidence pertaining to the issue at hand.
See, e.g., Billups v. Barnhart,
322 F.Supp.2d 1220, 1225 (D. Kan. 2004); Musall v.
Chater, No. 95-CV-494H, 1996 WL 200415, at *5 (W.D.N.Y.
Apr. 2, 1996). Here, as stated above, there is no evidence
pertaining to the scores obtained during the consultative
examination in connection with Plaintiff's prior
application for benefits that was not available to ALJ
Papazekos at the time she rejected the scores. In fact,
Plaintiff presented no evidence regarding these, or any other
IQ scores, at the hearing, and did not discuss borderline
intellectual functioning at all.
Nonetheless, Plaintiff insists that the 2010
consultative report connected with his previous application
should have been part of the record in this case so that ALJ
Appetta could have reviewed it herself. This makes little, if
any, sense in the context of this case. Again, there is
nothing new in the record regarding the validity of the 2010
scores, nor did Plaintiff attempt to raise any such issue
during the administrative proceedings. ALJ Appetta, of
course, could not have re-examined the validity of the scores
in connection with Plaintiff's prior application without
re-opening that application (something neither requested nor
done here), and the record is bereft of evidence of any
change in Plaintiff's condition since ALJ Papazekos
rendered her opinion in 2013. Indeed, there is literally no
evidence of any related treatment since that time. Moreover,
Plaintiff has in no way articulated how including the
consultative report containing the previously rejected scores
would have changed the outcome in his present case in light
of the lack of any new evidence as to their validity. See
Marling v. Colvin, No. 14-CV-146-JDP, 2015 WL 1486553,
at *3 (W.D. Wis. Mar. 31, 2015). Accordingly, there is really
no basis for remanding this matter on this ground, nor has
Plaintiff cited any authority for doing so.
Plaintiff also argues that the state reviewing agent
listed borderline intellectual functioning as a severe
impairment, but that ALJ Appetta neither included it as a
severe impairment in her decision nor explained her rejection
of this finding. However, the ALJ did, in fact, explain why
she did not include borderline intellectual functioning as a
severe impairment at Step Two of the sequential analysis. (R.
23). More importantly, the mere fact that the ALJ did not
include Plaintiff's alleged borderline intellectual
functioning as a severe impairment does not in itself warrant
remand. 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 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). Since Plaintiff's claim was not
denied at Step Two, it really does not matter whether the ALJ
correctly or incorrectly found Plaintiff's borderline
intellectual functioning to be non-severe.
Nonetheless, even if an impairment is non-severe, it
may still affect a claimant's 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.'” SSR 96-8p, 1996 WL 374184
(S.S.A.), at *5 (July 2, 1996). See also 20 C.F.R.
§§ 404.1545(a)(2), 416.945(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.” SSR 96-8p at *5. Here, however,
the ALJ expressly indicated that
she accounted for Plaintiff's borderline intellectual
functioning in the RFC. (R. 18). Indeed, the RFC contains
several restrictions pertaining to this condition including
limiting him to routine and repetitive entry-level work, to
non-production rate pace work, and to work not requiring
reading or math as essential functions of the job. (R.
In short, substantial evidence supports ALJ
Appetta's findings in this case. Therefore, the ...