United States District Court, M.D. Pennsylvania
ROBERT T. HENNION, JR., Plaintiff
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
Statement of Facts and of the
Substantial Evidence Review - the Role of This
Initial Burdens of Proof, Persuasion, and Articulation for
ALJ's Decision Denying Plaintiff's
Whether the ALJ's Findings At Step Three of the
Sequential Evaluation Process are Supported by Substantial
Evidence ................ 17
The ALJ's Evaluation of the Medical Opinion Evidence
Whether the ALJ Erred by Ignoring Treatment Records that
Supported Dr. Sinderman's Opinion ...... 22
Whether the ALJ Erred in his Application of the Factors
Outlined in 20 C.F.R. § 404.1527(c) and 20 C.F.R. §
416.927(c) ...................... 31
Whether the ALJ Adequately Evaluated the Medical Opinion of
Dr. Gavazzi .......... 41
Whether the ALJ Adequately Evaluated the Medical Opinion of
Sandra Banks ............ 47
Whether the ALJ Adequately Evaluated Plaintiff's GAF
Scores .... 50
Whether the ALJ Complied with the Court's Remand Order
Whether Substantial Evidence Supports the ALJ's RFC
Assessment ...... 56
Whether Substantial Evidence supports the ALJ's
Evaluation of Plaintiff's Statements about His Symptoms
Recommendation ................ 64
Robert T. Hennion, Jr. (“Plaintiff”), an adult
individual who resides within the Middle District of
Pennsylvania, seeks judicial review of the final decision of
the Commissioner of Social Security
(“Commissioner”) denying his claims for
Disability Insurance Benefits and Supplemental Security
Income under Titles II and XVI of the Social Security Act.
(Doc. 1). Jurisdiction is conferred on this Court pursuant to
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
matter has been referred to me to prepare a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Rule
72(b) of the Federal Rules of Civil Procedure. After
reviewing the briefs submitted by both parties, the ALJ's
decision, and the relevant portions of the certified
transcript, I find that the final decision of the
Commissioner of Social Security is supported by substantial
evidence. Accordingly, IT IS RECOMMENDED that the final
decision denying Plaintiff's applications for benefits be
STATEMENT OF FACTS AND OF THE CASE
September 29, 2010, Plaintiff protectively filed applications
for a period of disability, disability insurance benefits,
and supplemental security income under Titles II and XVI of
the Social Security Act, alleging that he became disabled
beginning June 17, 2010 because of the following impairments:
panic disorder, agoraphobia, possible bipolar, depression,
separation anxiety, sedation, irritable bowel syndrome, panic
attacks, and severe anxiety. (Admin. Tr. 227; Doc. 6-6, p.
10). Plaintiff alleges that these conditions affect his
ability to walk (due to agoraphobia), follow instructions,
and get along with others. (Admin. Tr. 243; Doc. 6-6, p. 26).
However, those closest to him, namely his mother and
girlfriend, identified additional deficits. Plaintiff's
mother, Judith Hennion, reported that Plaintiff's
conditions affect his ability to: walk, remember, complete
tasks, understand, follow instructions, and get along with
others. (Admin. Tr. 265; Doc. 6-6, p. 48). Plaintiff's
live-in girlfriend, Lucinda Volk, reported that
Plaintiff's conditions affect his ability to: lift, bend,
sit, kneel, remember, complete tasks, concentrate, and follow
instructions. (Admin. Tr. 1025; Doc. 6-20, p. 29).
was twenty-eight (28) years old as of his alleged onset date.
(Admin. Tr. 768; Doc. 6-16, p. 14). He previously worked as a
telephone solicitor and a customer service clerk.
Id. Plaintiff has at least a high school education
and can read and write in English. Id.
December 22, 2010, Plaintiff's applications were denied
at the initial level of administrative review. (Admin. Tr.
66; Doc. 6-2, p. 67).
the denial of his applications at the initial level of
administrative review, Plaintiff requested an administrative
hearing. Id. On January 31, 2012, Plaintiff appeared
and testified with the assistance of his counsel at an
administrative hearing before Administrative Law Judge Randy
Riley (the “ALJ”). Id. Impartial
vocational expert Brian Bierley also appeared and testified
during the proceedings. Id. On March 9, 2012, the
ALJ issued a written decision denying Plaintiff's
applications. (Admin. Tr. 63-77; Doc. 6-2, pp. 64-78).
the denial of his applications at the ALJ hearing level,
Plaintiff requested that the Appeals Council of the Office of
Disability Adjudication and Review (“Appeals
Council”) assess the ALJ's decision denying his
applications. (Admin. Tr. 60-61; Doc. 6-2, pp. 61-62). On
December 26, 2012, the Appeals Council denied Plaintiff's
request for review. (Admin. Tr. 1-3; Doc. 6-2, pp. 2-4).
February 4, 2013, Plaintiff filed an action with the U.S.
District Court to appeal the Commissioner's unfavorable
decision. (Admin. Tr. 839; Doc. 6-17, p. 48).
January 14, 2015, United States Magistrate Judge Gerald B.
Cohn issued a fifty-nine (59) page Report recommending that
the Commissioner's final decision denying Plaintiff's
applications be VACATED and that the case be REMANDED.
(Admin. Tr. 837-95; Doc. 6-17, pp. 46-104). In his Report,
Judge Cohn noted that the ALJ rejected the opinions of two
treating physicians, Dr. Sinderman and Dr. Rodgers, in favor
of an opinion by nonexamining State Agency Medical Consultant
Dr. Gavazzi. By way of explanation, the ALJ wrote only that
the opinions of the two treating sources were “not
supported by the medical evidence of record.” (Admin.
Tr. 874-75; Doc. 6-17, pp. 83-84). Judge Cohn found that the
ALJ's decision to disregard these opinions was not
supported by substantial evidence because the ALJ referenced
normal objective findings but failed to acknowledge
abnormalities documented in the same treatment notes.
Cohn also noted that:
most of the relevant records were handwritten notes from Dr.
Rogers and Dr. Sinderman. Much of these notes were illegible.
Defendant conceded that “[b]oth of Plaintiff's
treating physicians' notes are difficult to read.”
(Def. Brief at 6). However, that does not excuse the
ALJ's failure to acknowledge the abnormalities that were
documented legibly. Moreover, to the extent the ALJ was
unable to read these records, the ALJ should have obtained
clarification of those records, as they were crucial to the
determination of disability. An ALJ is not entitled to
characterize the medical record as evidencing no
“significant mental abnormalities” simply because
he is unable to decipher what the records say.
(Admin Tr. 885-86; Doc. 6-17, pp. 94-95). At the end of his
Report, Judge Cohn recommended that:
The decision of the Commissioner denying Plaintiff's
social security disability insurance and supplemental
security income benefits be vacated and the case remanded to
the Commissioner of Social Security to develop the record
fully, obtain legible treatment notes if necessary, and
conduct a new administrative hearing and appropriately
evaluate the evidence, particularly Plaintiff's treating
(Admin. Tr. 894; Doc. 6-17, pp. 103) (emphasis added).
March 2, 2015, United States District Judge Matthew W. Brann
issued an Order adopting Judge Cohn's Report. (Admin. Tr.
835-36; Doc. 6-17, pp. 44-45). Judge Brann's Order
included the following language:
The decision of the Commissioner of Social Security denying
Plaintiff's social security disability insurance and
supplemental security income is VACATED and
the case REMANDED to the Commissioner to
develop the record fully, obtain legible treatment notes if
necessary, conduct a new administrative hearing and
appropriately evaluate the evidence, particularly
Plaintiff's treating source opinions.
Id. (emphasis added) (boldface text in original).
receipt of Judge Brann's Order, the Appeals Council
issued the following order:
The U.S. District Court for the Middle District of
Pennsylvania (Civil Action Number 3:13-CV-00268) has remanded
this case to the Commissioner of Social Security for further
administrative proceedings in accordance with the fourth
sentence of section 205(g) of the Social Security Act.
Therefore, the Appeals Council vacates the final decision of
the Commissioner of Social Security and remands this case to
an Administrative Law Judge for further proceedings
consistent with the order of the court.
The claimant filed an electronic subsequent claim for Title
II disability insurance benefits on January 25, 2013. The
Appeals Council's action with respect to the current
electronic claims renders the subsequent claim duplicate.
Therefore, the Administrative Law Judge will consolidate the
claim files, create a single electronic record, and issue a
new decision on the consolidated claims (20 CFR 404.952,
416.1452, and HALLEX I-1-10-10).
In compliance with the above, the Administrative Law Judge
will offer the claimant the opportunity for a hearing and
take any further action needed to complete the administrative
(Admin. Tr. 898; Doc. 6-17, p. 107).
the District Court issued its remand order, but before the
new administrative hearing was held, Plaintiff submitted two
written requests to amend his alleged onset date. On December
29, 2015, Plaintiff amended his alleged onset date to August
10, 2015. (Admin. Tr. 994; Doc. 6-19, p. 12). On January 6,
2016, Plaintiff asked that the previously amended onset date
of disability be disregarded, and he amended his alleged
onset date of disability to the closed period of June 17,
2010 to August 10, 2015. (Admin. Tr. 995; Doc. 6-19, p. 13).
point between the ALJ's first decision denying
Plaintiff's applications, and the second administrative
hearing, Plaintiff enrolled in college, earned his associates
degree, and re-entered the workforce.
January 14, 2016, Plaintiff appeared and testified at his
second hearing, with the help of counsel. (Admin. Tr. 759;
Doc. 6-16, p. 5). At the hearing, Plaintiff requested that
the closed period be amended to June 17, 2010 to September 1,
2014. Id. Vocational expert Paul A. Anderson (the
“VE”) also appeared and testified at this
hearing. Id. On February 3, 2016, the ALJ issued
another unfavorable decision finding that Plaintiff was not
disabled during the closed period. (Admin. Tr. 759-770; Doc.
6-16, pp. 5-16).
April 5, 2016, Plaintiff initiated this action by filing a
Complaint, in which, he alleges that the ALJ's final
decision denying his applications was not made in accordance
with the law and is not supported by substantial
evidence.(Doc. 1). As relief, Plaintiff requests
that the Court enter an order reversing the decision of the
Commissioner and granting Plaintiff's applications, or in
the alternative, that the Court remand this matter for a new
administrative hearing and further development of the record.
6, 2016, the Commissioner filed her Answer, in which she
maintains that the decision denying Plaintiff's
Application is correct; was made in accordance with the law;
and is supported by substantial evidence. (Doc. 5). Along
with her Answer, the Commissioner filed a certified
transcript of the administrative proceedings. (Doc. 6 et
case has been fully briefed and is ripe for decision. (Doc.
9); (Doc. 10); (Doc. 11).
Substantial Evidence Review - the Role of This Court
reviewing the Commissioner's final decision denying a
claimant's application for benefits, this Court's
review is limited to the question of whether the findings of
the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. § 405(g);
42 U.S.C. § 1383(c)(3); Johnson v. Comm'r of
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca
v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012).
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, 565 (1988). Substantial evidence is less than a
preponderance of the evidence but more than a mere scintilla.
Richardson v. Perales, 402 U.S. 389, 401 (1971). A
single piece of evidence is not substantial evidence if the
ALJ ignores countervailing evidence or fails to resolve a
conflict created by the evidence. Mason v. Shalala,
994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately
developed factual record, substantial evidence may be
“something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions from
the evidence does not prevent [the ALJ's decision] from
being supported by substantial evidence.” Consolo
v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
determining if the Commissioner's decision is supported
by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F.Supp.2d
623, 627 (M.D. Pa. 2003). The question before this Court,
therefore, is not whether Plaintiff is disabled, but whether
the Commissioner's finding that he is not disabled is
supported by substantial evidence and was reached based upon
a correct application of the relevant law. See Arnold v.
Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.
Pa. Mar. 11, 2014) (“[I]t has been held that an
ALJ's errors of law denote a lack of substantial
evidence.”) (alterations omitted); Burton v.
Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981)
(“The Secretary's determination as to the status of
a claim requires the correct application of the law to the
facts.”); see also Wright v. Sullivan, 900
F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review
on legal matters is plenary); Ficca, 901 F.Supp.2d
at 536 (“[T]he court has plenary review of all legal
issues . . . .”).
Initial Burdens of Proof, Persuasion, and Articulation for
receive benefits under the Social Security Act by reason of
disability, a claimant 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 twelve months.” 42 U.S.C. §
1382c(a)(3)(A); see also 20 C.F.R. §
404.1505(a); 20 C.F.R. § 416.905(a). To satisfy this
requirement, a claimant must have a severe physical or mental
impairment that makes it impossible to do his or her previous
work or any other substantial gainful activity that exists in
the national economy. 42 U.S.C. § 423(d)(2)(A); 42
U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a);
20 C.F.R. § 416.905(a).
making this determination at the administrative level, the
ALJ follows a five-step sequential evaluation process. 20
C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under
this process, the ALJ must sequentially determine: (1)
whether the claimant is engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals a
listed impairment; (4) whether the claimant is able to do his
or her past relevant work; and (5) whether the claimant is
able to do any other work, considering his or her age,
education, work experience and residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(a)(4); 20
C.F.R. § 416.920(a)(4).
steps three and four, the ALJ must also assess a
claimant's RFC. RFC is defined as “that which an
individual is still able to do despite the limitations caused
by his or her impairment(s).” Burnett v. Comm'r
of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)
(citations omitted); see also 20 C.F.R.
§404.1520(e); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R.
§ 416.920(e); 20 C.F.R. § 416.945(a)(1). In making
this assessment, the ALJ considers all the claimant's
medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her
analysis. 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. §
steps one through four, the claimant bears the initial burden
of demonstrating the existence of a medically determinable
impairment that prevents him or her in engaging in any of his
or her past relevant work. 42 U.S.C. § 423(d)(5); 42
U.S.C. §1382c(a)(3)(H)(i) (incorporating 42 U.S.C.
§ 423(d)(5) by reference); 20 C.F.R. § 404.1512; 20
C.F.R. § 416.912; Mason, 994 F.2d at 1064.
this burden has been met by the claimant, it shifts to the
Commissioner at step five to show that jobs exist in
significant number in the national economy that the claimant
could perform that are consistent with the claimant's
age, education, work experience and RFC. 20 C.F.R. §
404.1512(f); 20 C.F.R. § 416.912(f); Mason, 994
F.2d at 1064.
ALJ's disability determination must also meet certain
basic substantive requisites. Most significant among these
legal benchmarks is a requirement that the ALJ adequately
explain the legal and factual basis for this disability
determination. Thus, to facilitate review of the decision
under the substantial evidence standard, the ALJ's
decision must be accompanied by “a clear and
satisfactory explication of the basis on which it
rests.” Cotter v. Harris, 642 F.2d 700, 704
(3d Cir. 1981). Conflicts in the evidence must be resolved
and the ALJ must indicate which evidence was accepted, which
evidence was rejected, and the reasons for rejecting certain
evidence. Id. at 706-707. In addition, “[t]he
ALJ must indicate in his decision which evidence he has
rejected and which he is relying on as the basis for his
finding.” Schaudeck v. Comm'r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999).
raises the following six (6) allegations of error in his
(1) The ALJ failed to comply with the Middle District of
Pennsylvania's Remand Order Dated March 2, 2015.
(2) The ALJ erred by finding that Hennion did not meet or
equal listing 12.04 and 12.06.
(3) Substantial evidence does not support the ALJ's
evaluation of the opinion evidence.
(4) Substantial evidence does not support the ALJ's RFC
(5) The ALJ improperly evaluated Hennion's GAF scores.
(6) Substantial evaluation [sic] does not support the
ALJ's credibility evaluation.
(Doc. 9, p. 2).
ALJ's Decision Denying Plaintiff's Applications
February 2016 decision denying Plaintiff's applications,
the ALJ evaluated Plaintiff's claim at each step of the
sequential evaluation process. At step one, the ALJ found
that Plaintiff did not engage in substantial gainful activity
between June 17, 2010 (the onset date) and September 1, 2014
(the amended end date of disability) (the “closed
period”). (Admin. Tr. 761; Doc. 6-16, p. 7). At step
two, the ALJ found that Plaintiff had the following medically
determinable, severe impairments during the closed period:
generalized anxiety disorder and panic disorder with
agoraphobia. Id. The ALJ found that the following
impairments were medically determinable but non-severe: acute
nausea and vomiting, obesity, mild degenerative changes of
the right knee. (Admin. Tr. 762; Doc. 6-16, p. 8). At step
three, the ALJ found that during the closed period Plaintiff
did not have an impairment or combination of impairments that
met or medically equalled the severity of one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
steps three and four, the ALJ evaluated Plaintiff's RFC.
He concluded that during the relevant period, Plaintiff had
the RFC to perform “a full range of work at all
exertional levels” except that he has the following
simple[, ] routine, repetitive tasks in a work environment
free from fast-paced production; work is a low stress job
(defined as having only occasional decision-making and
occasional changes to the routine work setting); no
interaction with the public; occasional interaction with
coworkers but no tandem tasks; and occasional supervision.
(Admin. Tr. 763; Doc. 6-16, p. 9).
four, the ALJ found that, during the relevant period,
Plaintiff was unable to engage in his past relevant work as a
telephone solicitor and customer service clerk. (Admin. Tr.
768; Doc. 6-16, p. 14). At step five, the ALJ found that in
consideration of Plaintiff's RFC and the vocational
factors, there were jobs that existed in the national economy
that Plaintiff could perform during the closed period,
including occupations such as a sexton, a
cleaner/housekeeper, and a surveillance system monitor.
Id. Based on these findings, the ALJ ...