United States District Court, W.D. Pennsylvania
DANIEL C. KUSHNER, Plaintiff,
NANCY A. BERRYHILL,  COMMISSIONER OF SOCIAL SECURITY, Defendant.
DONETTA W. AMBROSE UNITED STATES SENIOR DISTRICT JUDGE
before the Court are Cross-Motions for Summary Judgment. (ECF
Nos. 10 and 12). Both parties have filed Briefs in Support of
their Motions. (ECF Nos. 11 and 13). After careful
consideration of the submissions of the parties, and based on
my Opinion set forth below, I am granting Defendant's
Motion for Summary Judgment (ECF No. 12) and denying
Plaintiff's Motion for Summary Judgment. (ECF No. 10).
brought this action for review of the final decision of the
Commissioner of Social Security denying his application for
disability insurance benefits pursuant to the Social Security
Act. Plaintiff filed his application alleging he had been
disabled since August 1, 2003. (ECF No. 8-7, p. 5).
Administrative Law Judge (“ALJ”), David F. Brash,
a hearing on July 10, 2015. (ECF No. 8-3). On August 31,
2015, the ALJ found that Plaintiff was not disabled under the
Social Security Act. (ECF No. 8-2, pp. 14-22).
exhausting al administrative remedies thereafter, Plaintiff
filed this action. The parties have filed Cross-Motions for
Summary Judgment. (ECF Nos. 10 and 12). The issues are now
ripe for review.
STANDARD OF REVIEW
standard of review in social security cases is whether
substantial evidence exists in the record to support the
Commissioner's decision. Allen v. Bowen, 881
F.2d 37, 39 (3d Cir. 1989). Substantial evidence has been
defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate.” Ventura v. Shalala, 55 F.3d 900,
901 (3d Cir. 1995), quoting Richardson v. Perales,
402 U.S. 389, 401 (1971). Additionally, the
Commissioner's findings of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. §405(g);
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). A district court cannot conduct a de novo
review of the Commissioner's decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp.
549, 552 (E.D. Pa. 1998). Where the ALJ's findings of
fact are supported by substantial evidence, a court is bound
by those findings, even if the court would have decided the
factual inquiry differently. Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999). To determine whether a finding
is supported by substantial evidence, however, the district
court must review the record as a whole. See, 5
eligible for social security benefits, the plaintiff must
demonstrate that he cannot engage in substantial gainful
activity because of a 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 at least 12 months. 42 U.S.C. §423(d)(1)(A);
Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir.
Commissioner has provided the ALJ with a five-step sequential
analysis to use when evaluating the disabled status of each
claimant. 20 C.F.R. §404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) if not, whether the
claimant has a severe impairment; (3) if the claimant has a
severe impairment, whether it meets or equals the criteria
listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings,
whether the claimant's impairments prevent him from
performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he
can perform any other work which exists in the national
economy, in light of his age, education, work experience and
residual functional capacity. 20 C.F.R. §404.1520. The
claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous
employment (steps 1-4). Dobrowolsky, 606 F.2d at
406. Once the claimant meets this burden, the burden of proof
shifts to the Commissioner to show that the claimant can
engage in alternative substantial gainful activity (step 5).
district court, after reviewing the entire record may affirm,
modify, or reverse the decision with or without remand to the
Commissioner for rehearing. Podedworny v. Harris,
745 F.2d 210, 221 (3d Cir. 1984).
Severe Impairment - Headaches
2 of the analysis, an ALJ must determine whether the claimant
has a medically determinable impairment that is severe. 20
C.F.R. §§416.920(a), 404.1520(a). When an ALJ finds
that a plaintiff suffers from even one severe impairment, the
failure to find other impairments severe is not harmful to
the integrity of the analysis because the plaintiff is not
denied benefits at that stage and the ALJ continues with the
analysis. Salles v. Commissioner of Social Sec., 229
Fed.Appx. 140, 144-145, n. 2, 2007 WL 1827129 (3d Cir. 2007);
Sheeler v. Astrue, No. 08-64J, 2009 WL 789892, 4 -5
(W.D.Pa. March 24, 2009); Hanke v. Astrue, No.
12-2364, 2012 WL 6644201, *4 (7th Cir. Dec. 21, 2012).
In this case, the ALJ did not find Plaintiff's alleged
headaches to be severe: “[t]he claimant's headaches
were considered as part of Cervical Degenerative Disc
Disease.” (ECF No. 8-2, p. 17). The ALJ, however, did
find other impairments to be severe, including
Plaintiff's cervical degenerative disc disease. (ECF No.
8-2, pp. 16-17). Therefore, Plaintiff was not denied benefits
at step 2 and the ALJ proceeded beyond step 2 to determine
Plaintiff's residual functional capacity
(“RFC”). (ECF No. 8-2, pp. 17-22).
argues that the ALJ erred in failing to consider
Plaintiff's headaches as a non-exertional impairment
instead of a mental impairment because he failed to
“sight (sic) any specific evidence of record or medical
finding to support his conclusion.” (ECF No. 11, pp.
4-5). To that end, Plaintiff suggests that ALJ should have
called a medical expert to make this
conclusion.(ECF No. 11, p. 4). After a review of the
record, I disagree. While it is true that the ALJ's
opinion does not cite to any evidence at the end of that
sentence, his opinion must be read in its entirety. It is
evident, that the ALJ made this statement based on the
allegation that Plaintiff's disability is based on a
“cervical injury” that resulted in, inter
alia, neck pain and headaches. (ECF No. 8-2, pp. 16-20;
No. 8-8, p. 3; No. 8-3, p. 15). The cervical degenerative
disc disease diagnosis was part of his treating
physician's records and discussed by the ALJ during his