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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 

JEFFREY M. BROWN, 

 

 Plaintiff, 

 

 v. 

 

 

CAROLYN W. COLVIN, 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 

 Defendant. 

CASE NO. 4:15-cv-00992-MWB-GBC 

 

(JUDGE BRANN) 

(MAGISTRATE JUDGE COHN) 

REPORT AND RECOMMENDATION 

TO DENY PLAINTIFF’S APPEAL 

Docs. 1, 10, 11, 14, 15, 18 

REPORT AND RECOMMENDATION

I. Introduction 

The above-captioned action is one seeking review of a decision of the 

Commissioner of Social Security ("Defendant”) denying the application of Jeffrey 

M. Brown (“Plaintiff”) for disability insurance benefits (“DIB”) and supplemental 

security income (“SSI”) under the Social Security Act, 42 U.S.C. §§401-433, 

1382-1383 (the “Act”) and Social Security Regulations, 20 C.F.R. §§404.1501 et 

seq., §§416.901 et. seq.1 (the “Regulations”). The Court recommends that 

Plaintiff’s appeal be denied, and the decision of the Commissioner be affirmed, 

and the case closed. 

 1

 Part 404 governs DIB, Part 416 governs SSI. See Sims v. Apfel, 530 U.S. 103, 107 

(2000). Like Sims, these regulations “are, as relevant here, not materially different” 

and the Court “will therefore omit references to the latter regulations.” Id.

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II. Procedural Background 

On October 5, 2011, Plaintiff applied for DIB and SSI. (Tr. 182-91). On 

April 3, 2012, the Bureau of Disability Determination (“state agency”) denied 

Plaintiff’s application (Tr. 111-38), and Plaintiff requested a hearing. (Tr. 148-49). 

On April 23, 2013, an ALJ held a hearing at which Plaintiff appeared and testified. 

(Tr. 89-98). On July 23, 2013, the ALJ held a second hearing at which Plaintiff—

who was not represented by an attorney—and a vocational expert (“VE”) appeared 

and testified. (Tr. 43-77). On October 16, 2013, the ALJ found that Plaintiff was 

not entitled to benefits. (Tr. 24-42). Plaintiff requested review with the Appeals 

Council (Tr. 23), which the Appeals Council denied on March 20, 2015, affirming 

the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-6). See 

Sims v. Apfel, 530 U.S. 103, 107 (2000). 

On May 21, 2015, Plaintiff filed the above-captioned action pursuant to 42 

U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On July 24, 

2015, the Commissioner filed an answer and administrative transcript of 

proceedings. (Docs. 10, 11). On October 21, 2015, Plaintiff filed a brief in support 

of the appeal (“Pl. Brief”). (Doc. 14). On November 20, 2015, Defendant filed a 

brief in response (“Def. Brief”). (Doc. 15). On December 17, 2015, Plaintiff filed a 

brief in reply (“Pl. Reply”). (Doc. 18). On January 11, 2016, the Court referred this 

case to the undersigned Magistrate Judge. The matter is now ripe for review. 

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III. Standard of Review and Sequential Evaluation Process 

To receive benefits under the Act, a claimant must establish 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. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires 

that a claimant for disability benefits show that: 

He is not only unable to do his previous work but cannot, considering 

his 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 

he lives, or whether a specific job vacancy exists for him, or whether 

he would be hired if he applied for work. 

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B). The claimant bears the 

burden of production. Id. (“An individual shall not be considered to be under a 

disability unless he furnishes such medical and other evidence of the existence 

thereof as the Commissioner of Social Security may require”). 

The ALJ uses a five-step evaluation process to determine if a person is 

eligible for disability benefits. See 20 C.F.R. § 404.1520. 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 from 20 C.F.R. Part 

404, Subpart P, Appendix 1 (“Listing”); (4) whether the claimant’s impairment 

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prevents the claimant from doing past relevant work; and (5) whether the 

claimant’s impairment prevents the claimant from doing any other work. See 20 

C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine 

Plaintiff's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e). 

The disability determination involves shifting burdens of proof. The 

claimant bears the burden of proof at steps one through four. If the claimant 

satisfies this burden, then the Commissioner must show at step five that jobs exist 

in the national economy that the claimant can perform. Mason v. Shalala, 994 F.2d 

1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act 

lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). 

The Court reviews the ALJ’s decision under the deferential substantial 

evidence standard. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). 

Substantial evidence supports the ALJ decision unless no “reasonable mind might 

accept [the relevant evidence] as adequate to support a conclusion.” Id. (internal 

citations omitted). “Stated differently, this standard is met if there is sufficient 

evidence ‘to justify, if the trial were to a jury, a refusal to direct a verdict.’” Id. 

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 

L.Ed. 456 (1951)). 

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IV. Relevant Period 

As the ALJ notes, Plaintiff’s date last insured was June 30, 2006, and the 

record contains scant evidence of disability prior to the date last insured. (Tr. 32-

35). Plaintiff did not address this claim in his briefs and cites minimal evidence 

prior to the date last insured. (Pl. Brief); (Pl. Reply). Plaintiff’s brief indicates that 

Plaintiff has been disabled since “at least” October 5, 2011, and the procedural 

history mentions only SSI, not DIB. (Pl. Brief at 1-2). 

Medical records establish that Plaintiff suffered from asthma prior to July 

31, 2006, but did not indicate that a sedentary job would trigger work-preclusive 

asthma, that his musculoskeletal impairments would limit his ability to perform 

sedentary work, or that he suffered from work-related mental limitations. (Tr. 275-

370, 653-77). Plaintiff was hospitalized for three days in 2001 at St. Catherine’s 

hospital for cough, shortness of breath, and wheezing, but does not mention 

musculoskeletal or psychiatric complaints and was not taking any psychiatric or 

opiate medications on admission. (Tr. 279). Examination indicated no 

musculoskeletal or mental impairments. (Tr. 310-11). Plaintiff reported no drug or 

alcohol use. (Tr. 313). The state agency requested that St. Catherine’s provide any 

records from 2000, 2001, and 2006, but only this hospitalization was provided. (Tr. 

277). 

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 In April of 2001, Plaintiff was taking medications for respiratory 

impairments, but no psychiatric or pain medications. (Tr. 368). During a 

pulmonary function study in 2004, Plaintiff “stopped due to complaints of gagging 

and inability to remain on the mouthpiece” but the test revealed no explanation for 

his shortness of breath, and there was a “normal cardiac and pulmonary response to 

exercise.” (Tr. 362). His physicians opined that, although Plaintiff could not 

continue working as a roofer, he could pursue “alternative employment.” (Tr. 339). 

Although Plaintiff remained covered by workers’ compensation for medical care 

through 2007, there is no evidence of medical treatment from April of 2004 to May 

of 2008, when he was already incarcerated in New York. Doc. 11. 

With regard to DIB, Plaintiff has failed to meet his burden of production, 

and substantial evidence supports the ALJ’s determination with regard to DIB.. 

Consequently, the relevant period begins on October 5, 2011, the date he applied 

for SSI. However, the Court considered the records prior to October 5, 2011, to the 

extent they were probative of Plaintiff’s disability after October 5, 2011. 

V. Relevant Facts in the Record 

The administrative transcript in this case is 735 pages. Doc. 11. Plaintiff 

initially alleged disability onset in December, 2000, when he was thirty-one years 

old. (Tr. 224). He remained classified by the Regulations as a younger individual 

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through the date of the ALJ decision. (Tr. 35); 20 C.F.R. § 404.1563. Plaintiff 

worked as a roofer through 2000. (Tr. 165-71). 

 Plaintiff received partial workers compensation benefits in the amount of 

$64,085.58 from December 22, 2000 through April of 2004. (Tr. 165-71). Plaintiff 

had been exposed to toxic chemicals as a roofer and was found to have industrial 

asthma. (Tr.173). A decision dated January 27, 2004 found that Plaintiff had a 

permanent partial disability. (Tr. 173). Plaintiff’s physicians advised him to find an 

alternative career, and not return to roofing. (Tr. 175). In January of 2007, Plaintiff 

agreed to settle his workers compensation claim for $120,413.28 for injuries to his 

eyes and face and industrial asthma. (Tr. 173). Plaintiff was then incarcerated from 

2007 through December 19, 2009. (Tr. 97). Plaintiff earned $6,135.00 working as a 

roofer on Staten Island in 2010. (Tr. 202, 211). 

 In May of 2008, while incarcerated, Plaintiff underwent an examination that 

indicated normal gait, speech, and spine. (Tr. 654). Plaintiff reported alcohol and 

narcotic use through 2007, including IV and crack cocaine. (Tr. 653). Plaintiff 

reported that he had been diagnosed with bipolar disorder in 1999. (Tr. 653). 

Plaintiff was taking medications for respiratory, but not musculoskeletal or mental 

impairments. (Tr. 653).In August of 2008, liver biopsy indicated abnormalities and 

testing indicated Hepatitis C. (Tr. 658, 673). In October of 2008, lumbar spine 

MRI indicated anterolisthesis, spondylolysis, disc degeneration, and disc bulges 

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with no stenosis. (Tr. 660). In February of 2009, Plaintiff reported abdominal pain, 

and imaging of Plaintiff’s abdomen indicated no significant abnormalities. (Tr. 

657). In March of 2009, Plaintiff reported a “two day history of cough,” and chest 

X-ray indicated no acute disease. (Tr. 656). By February of 2009, Plaintiff was 

taking lithium, and testing revealed that his lithium levels were low. (Tr. 675, 677). 

The only medical records after Plaintiff was released from incarceration in 

2009 and before he applied for benefits in October of 2011 are from September of 

2010, when Plaintiff was transported to Staten Island University Hospital after 

being found intoxicated on a sidewalk. (Tr. 380). Plaintiff was “verbal but not 

making sense.” (Tr. 380). Plaintiff smelled of alcohol but could not provide the 

amount he drank. (Tr. 380). He admitted drinking beer that day. (Tr. 416). Plaintiff 

later indicated that he had consumed six “Four Loco” beers that day. (Tr. 437). 

Plaintiff was insured. (Tr. 454). He indicated that he continued using 

“crack/cocaine daily.” (Tr. 441). Plaintiff’s diagnoses included acute alcohol 

intoxication, continuing alcohol dependence and continuing cocaine dependence. 

(Tr. 384, 397). Plaintiff denied decreased hygiene but reported impaired impulse 

control. (Tr. 385). Plaintiff was taking lithium, Celexa, Buspar, and Thorazine for 

bipolar disorder. (Tr. 386). Plaintiff reported that he was supposed to be on 

Depakote for seizures but could not afford it. (Tr. 386). He denied muscle pain, 

joint pain, back pain, hallucinations, and depression. (Tr. 386, 418). He had fallen 

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secondary to intoxication and reported pain as a result of the fall. (Tr. 424). 

Plaintiff’s blood alcohol level was 148 mg/dL. (Tr. 391). Plaintiff “desire[d]” 

detoxification. (Tr. 392). He denied previous psychiatric hospitalizations. (Tr. 

428). 

Plaintiff underwent detoxification and was hospitalized for five days. (Tr. 

384). Plaintiff “participated in group and counseling activities, remained in stable 

condition, and was discharged.” (Tr. 408). Plaintiff wanted to participate in a 28 

day rehabilitation program. (Tr. 443). Arrangements were made for a program to 

pick Plaintiff up from the hospital. (Tr. 448). He indicated that his current “leisure 

interests” were “roofing-work,” and that he spent his free time “drinking daily.” 

(Tr. 430). He indicated that he was unemployed but “able” to work, had missed 

days at work due to alcohol use, and specifically stated that he was unemployed 

and had lost his roofing job due to alcohol use. (Tr. 431). 

In October of 2011, he applied for benefits under the Act. (Tr. 182). Plaintiff 

reported that he had lost his job as a roofer in 2010 because of his asthma and 

back pain. (Tr. 218). Plaintiff does not mention alcohol use as contributing to 

losing his job. (Tr. 218). He was living with his parents, who were in their 

seventies, in Pennsylvania. (Tr. 193). He spoke with a state agency employee over 

the phone, who noted no problems hearing, reading, breathing, understanding, 

coherency, concentrating, talking, or answering. (Tr. 225). 

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On November 9, 2011, Plaintiff completed a Function Report. (Tr. 242). He 

reported that he had no side effects from his medications, which included lithium, 

thorazine, Effexor, buspar, albuterol, theopylinne, and prednisone. (Tr. 242). He 

reported problems with lifting, squatting, bending, standing, reaching, walking, 

kneeling talking, climbing stairs, memory, completing tasks, concentrating, and 

following instructions. (Tr. 240). He reported that he had transferred custody of his 

children to his ex-mother-in-law because he could not care for them, could walk 

for 100 feet before needing to rest, and could pay attention for “30 seconds.” (Tr. 

240). He reported no problems getting along with authority figures or co-workers, 

but could not handle stress and did not like change. (Tr. 240). He reported using a 

cane and that he had suffered a compound fracture the year before that left his right 

leg two inches shorter than his left. (Tr. 241). He reported that he watched 

television and read, but that he had a hard time concentrating to read. (Tr. 239). He 

reported that he would leave the home, but one of his parents had to accompany 

him. (Tr. 239). He reported performing some household chores, but that his parents 

did most of them. (Tr. 236-39). He indicated that had problems maintaining 

hygiene due to his mental impairments. (Tr. 236). He reported problems sleeping 

and using a nebulizer four times per day. (Tr. 236). He reported constant pain in 

his lungs, back, and legs. (Tr. 244). He indicated that he was taking ibuprofen for 

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pain and that he had gained significant weight since the onset of disability. (Tr. 

244). Plaintiff indicated that he did not have insurance. (Tr. 254). 

On December 7, 2011, Plaintiff underwent a consultative examination with 

state agency physician Dr. Sethuraman Muthiah, M.D. (Tr. 546-53). Dr. Muthiah 

opined that Plaintiff could sit, stand, or walk for no more than a combined fivehours in an eight-hour workday. (Tr. 546). Plaintiff reported shortness of breath 

“on exertion” and back pain. (Tr. 551). Examination indicated “few scattered 

rhonchi” in his lungs, his right leg was shorter than his left, tenderness and muscle 

spasm in his spine, and antalgic gait, although he could stand and walk without a 

cane. (Tr. 553). 

On January 9, 2012, Plaintiff established care at Monroe County Family 

Health Center with Dr. Theodore Kowalyshyn, M.D. (Tr. 582). Plaintiff had 

insurance through a Medical Access Card. (Tr. 582). Examination indicated a tibial 

deformity in Plaintiff’s right leg secondary to an injury in 2010 and occasional 

wheezes. (Tr. 582). Examination was otherwise normal. (Tr. 582). Plaintiff 

reported a history of asthma, bipolar disorder, and chronic back pain related to a 

motor vehicle accident in October of 2010. (Tr. 582). Dr. Kowalyshyn prescribed 

Advair, Albuterol, and theophylline for asthma, lithium, Buspar, Effexor, and 

Thorazine for bipolar disorder, and balcofen and Percocet for back pain. (Tr. 583). 

Dr. Kowalyshyn referred Plaintiff to a psychiatrist and an orthopedist. (Tr. 582-

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83). On February 20, 2012, Plaintiff followed-up and requested a nebulizer. (Tr. 

585). Examination was normal aside for “scattered” wheezes. (Tr. 585). Dr. 

Kowalyshyn again referred Plaintiff to an orthopedist. (Tr. 585). 

On January 23, 2012, Plaintiff presented to the ReDCo Group for a 

psychosocial evaluation. (Tr. 641). Plaintiff reported that he was bipolar and had 

been “manic” for several days. (Tr. 641). Plaintiff denied ever using intravenous 

drugs or any drug other than alcohol. (Tr. 642). He “denied any drug use.” (Tr. 

642). Plaintiff explained that he had gone to prison for DUI after drinking alcohol. 

(Tr. 643). Plaintiff reported receiving cash assistance and food stamps, living with 

his parents, and that he enjoyed painting. (Tr. 643). Plaintiff reported “that he has 

friends and neighbors that he talks with as well as his family.” (Tr. 644). Mental 

status examination indicated that Plaintiff did not have impaired hygiene, 

inappropriate clothing, anger, hostility, abnormal movements, inappropriate affect 

or mood, increased lability, euphoria, elation, or irritability. (Tr. 645). Plaintiff had 

slightly slumped posture and slight restlessness and occasional anxiety, depression, 

blunted affect, and insomnia. (Tr. 645). Plaintiff had no reported hallucinations and 

no impaired attention span, concentration, intelligence, orientation, judgment, 

memory, thought content, delusions, suicidal ideation, or stream of thought. (Tr. 

646). Providers diagnosed Plaintiff with bipolar disorder and assessed a GAF of 

60. (Tr. 647). 

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The next day, January 24, 2012, Plaintiff presented for a consultative 

examination with state agency psychologist Dr. Dustan Barabas, Psy.D. (Tr. 574). 

Plaintiff reported that he had been diagnosed with bipolar disorder in 2007. (Tr. 

575). Plaintiff reported a learning disability, difficulty acquiring information, and 

mood swings. (Tr. 575). Dr. Barabas wrote: 

The claimant presented as cooperative, alert, and calm during the 

evaluation. His posture and behavior were unremarkable. The 

claimant appeared slightly overweight. His speech was relevant, 

coherent, and organized. The claimant reported a history of 

psychological problems requiring treatment. The claimant reports that 

he saw a psychiatrist while in prison and several psychologists 

throughout his adult life. The claimant could not recall a specific 

name or date. The claimant went for an intake at Redco Group at 

Stroudsburg yesterday. The claimant's affect appeared normal. He 

denied hallucinations or delusions. No phobias were reported. The 

claimant admits to a remote history of substance abuse. He reports a 

history of using cocaine, alcohol, marijuana and crack; he said he last 

used in year 2000. The claimant reports a history of six psychiatric 

hospitalizations... 

(Tr. 575-76). Mental status examination indicated: 

The claimant appeared to be in the average range of intelligence, but 

his formal IQ data was unavailable at the time of this assessment. The 

claimant's abstracting abilities were adequate and his thinking was 

organized. The claimant had some difficulty recalling specific dates 

and times of significant events; however, his long-term appeared 

within normal limits. The claimant was able to spell the word "world" 

backwards without error or hesitation. The claimant was able to recall 

a string of five numbers during a numeric memory test. immediately 

and " could recall the same string of five numbers after a few minutes. 

The claimant's short-term memory appeared within normal limits. In 

general, the claimant's attention and focus appear unimpaired. The 

claimant was oriented to person, place and time. The claimant's sleep 

is reported as restless and poor. However, no obsessive thoughts or 

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compulsive behaviors were observed or reported. At this time, 

suicidal ideation, plan or intent to harm himself were denied. The 

claimant appears low risk for self-harm at this time. 

(Tr. 576). Dr. Barabas assessed Plaintiff to have a GAF of 70 and no more than 

slight limitations in any area of work-related function. (Tr. 571-72, 577). 

On March 12, 2012, the state agency sent ReDCo a request for medical 

records, and also asked whether ReDCo would be willing to complete an 

evaluation for Plaintiff’s disability claim. (Tr. 555-58). ReDCo submitted medical 

records, but did not respond to whether they would be willing to complete an 

evaluation. (Tr. 555-60). 

On March 19, 2012, Dr. David Hutz, M.D., reviewed Plaintiff’s file, 

including Dr. Muthiah’s opinion, and authored a medical opinion. (Tr. 117-24). Dr. 

Hutz explained that Dr. Muthiah’s opinion was based “heavily on the subjective 

report of symptoms and limitations provided by the individual,” was unsupported 

by “the totality of the evidence,” and was “an overestimate of the severity of 

[Plaintiff’s] restrictions/limitations and based only on a snapshot of the 

individual’s functioning.” (Tr. 124). Dr. Hutz also noted that Plaintiff’s Function 

Report indicated that he had no problem with personal care, could take out light 

trash, and could walk up to 100 feet. (Tr. 117). Dr. Hutz opined that Plaintiff could 

perform a range of light work. (Tr. 117-24). 

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On April 19, 2012, Plaintiff presented at ReDCo for a psychiatric evaluation. 

(Tr. 638). Plaintiff reported six previous DUIs, a history of bipolar disorder and 

alcohol dependence, sleep problems, and anxiety. (Tr. 638). Plaintiff’s medications 

on admission were Effexor, Lithium, Buspar, and Thorazine. (Tr. 638). The 

psychiatrist observed that Plaintiff was well-dressed and groomed, anxious, and 

had a low mood, with no suicidal ideation. (Tr. 639). The psychiatrist diagnosed 

bipolar disorder and alcohol dependence, assessed a GAF of 58, discontinued 

thorazine and Buspar, and began Remeron. (Tr. 640). 

On April 20, 2012 and May 18, 2012, Plaintiff followed-up with Dr. 

Kowalyshyn. (Tr. 607, 609). At each visit he had no objective abnormalities on 

physical examination and no wheezes. Id. Dr. Kowalyshyn prescribed oxycodone 

and Ambien. (Tr. 607). Dr. Kowalyshyn continued referring Plaintiff to 

orthopedists and pain management specialists. (Tr. 607, 609). On June 15, 2012, 

Plaintiff reported that the pain specialist was “too far to drive.” (Tr. 605). Dr. 

Kowalyshyn observed “scattered” wheezes. (Tr. 605). On July 27, 2012, Plaintiff 

reported that he was “still working on orthopedic evaluation.” (Tr. 603). Dr. 

Kowalyshyn observed “occasional” wheezes and prescribed nebulizer medication. 

(Tr. 603). 

On June 7, 2012, Plaintiff followed-up at ReDCO with Dr. Muhamad Rifai, 

M.D. (Tr. 637). Plaintiff reported that he had doubled his Effexor dose on his own 

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and felt “good” and “improved” but was “not sleeping.” (Tr. 637). Plaintiff denied 

suicidal ideation. (Tr. 637). Dr. Rifai continued Plaintiff’s medications, instructed 

Plaintiff to call ReDCo if the medications caused adverse effects, and assessed a 

GAF of 55. (Tr. 637). On August 2, 2012, Plaintiff requested to substitute 

trazodone for Remeron because he continued to experience sleep problems. (Tr. 

635). Plaintiff reported “improved mood but feels a higher dose of Effexor would 

help him.” (Tr. 635). Dr. Rifai increased his Effexor, prescribed trazodone, and 

assessed a GAF of 55. (Tr. 635). 

On September 11, 2012, Plaintiff presented to Nicole Schock, CRNP, at Dr. 

Kowalyshyn’s referral, for evaluation of Hepatitis C. (Tr. 595). Abdominal 

ultrasound indicated chronic liver disease. (Tr. 596). Plaintiff denied abdominal 

pain, neck pain, leg pain, joint pain, swelling, anxiety, depression, decreased 

memory, fatigue, tiredness, and dizziness. (Tr. 594). Plaintiff reported using 

intravenous drugs through 2008 and that he had been contracted Hepatitis C while 

in prison in 2006. (Tr. 593). “Chest and lung exam reveal[ed] quiet, even and easy 

respiratory effort with no use of accessory muscles and on auscultation, normal 

breath sounds, no adventitious sounds and normal vocal resonance.” (Tr. 594). 

Plaintiff’s abdomen was non-tender. (Tr. 595). CRNP Schock indicated that 

Plaintiff would need psychiatric clearance before treating with interferon and 

Incivek. (Tr. 593). 

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On September 24, 2012, Plaintiff followed-up with Dr. Kowalyshyn. (Tr. 

601). He was requesting narcotic pain medication, but Dr. Kowalyshyn indicated 

“that we do not do chronic pain management” and referred him to a pain 

management specialist. (Tr. 601). Examination indicated that Plaintiff was 

“pleasant” and had normal physical findings, with no wheezes. (Tr. 601). The state 

agency asked if Dr. Kowalyshyn would be willing to complete an evaluation in 

connection with Plaintiff’s claim for benefits, and Dr. Kowalyshyn responded 

“no.” (Tr. 580). 

On October 11, 2012, Plaintiff followed-up with Dr. Rifai. (Tr. 634). 

Plaintiff reported that he was “ready” for Hepatitis C treatment and felt “improved 

mood with higher dose of Effexor.” (Tr. 634). Dr. Rifai substituted Doxepin for 

trazodone, continued his other medications, instructed Plaintiff to call ReDCo if he 

suffered any adverse medication side effects, and assessed a GAF of 55. (Tr. 634). 

On October 22, 2012, Plaintiff presented to the emergency room after an 

allegedly accidental overdose on Ambien and baclofen. (Tr. 693). When 

questioned regarding alcohol use, providers noted that “he states he has no drank 

alcohol in six years; however, review of alcohol level from 3/26/11 was noted to be 

346.” (Tr. 693). Reports from family members also indicated more recent alcohol 

use. (Tr. 693). Providers also noted that “his responses to questions are somewhat 

vague at times and inconsistent.” (Tr. 693). Plaintiff reported fatigue, shortness of 

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breath, wheezing, and depression. (Tr. 694). Plaintiff denied weight change, 

abdominal pain, arthritis, joint swelling, and hallucinations. (Tr. 694). Examination 

indicated wheezing and limited insight. (Tr. 694). Plaintiff was hospitalized 

through at least October 24, 2012. (Tr. 694). 

On November 13, 2012, Plaintiff followed-up at Pocono Gastroenterology 

for treatment of Hepatitis C. (Tr. 697). Plaintiff “report[ed] IV drug use,” 

specifically heroin and cocaine. (Tr. 697). Plaintiff reported that his last drink of 

alcohol was in 2006. (Tr. 697). Plaintiff denied fatigue, shortness of breath, 

wheezing, abdominal pain, back pain, joint pain, swollen joints, muscle pain, 

confusion, depression, and memory loss. (Tr. 698). Examination indicated normal 

respiration, with no wheezes, intact motor strength, and intact neurological 

function. (Tr. 698). 

On December 20, 2012, Plaintiff followed-up with Dr. Rifai. (Tr. 726). 

Plaintiff reported that he had been hospitalized in October of 2012 “for Lithium 

toxicity due to confusion about his medications.” (Tr. 726). Plaintiff reported that 

he continued to feel ready for Hepatitis C treatment and was experiencing 

improved mood. (Tr. 726). Dr. Rifai continued Plaintiff’s medications, instructed 

him to contact ReDCo if he experienced any adverse medication side effects, and 

assessed a GAF of 55. (Tr. 726). 

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On December 29, 2012, Plaintiff established care with a new primary care 

physician, Dr. Ralph Hawkes, M.D. (Tr. 713). Plaintiff reported that he had been 

told he needed surgery for his back, but had declined. (Tr. 712). Examination 

indicated that Plaintiff walked with a cane, but was otherwise normal, with no 

wheezes. (Tr. 712). Plaintiff refused to put on a gown, so examination was 

“limited.” (Tr. 712). Plaintiff denied alcohol use and reported that his last drug use 

was cocaine on December 21, 2007. (Tr. 712). Dr. Hawkes continued Plaintiff’s 

medications, including his Percocet, but noted “need to obtain old record. Told him 

I will fill this medication for now but he needs to be transition to a pain 

management specialist.” (Tr. 713). This record does not indicate why Plaintiff 

discontinued care with Dr. Kowalyshyn. (Tr. 712-14). 

On February 7, 2013, Plaintiff followed-up with Dr. Rifai and reported 

concern about his father, who had lung cancer, was waiting for Hepatitis C 

treatment, was sleeping “OK,” and was worried about weight gain. (Tr. 723). On 

examination Plaintiff was cooperative, had normal muscle strength, tone, gait, 

psychomotor activity, speech, mood, affect, thought process, attention span, 

concentration, memory, language, and fund of knowledge, and limited insight and 

judgment. (Tr. 724). Plaintiff denied hallucinations and suicidal ideation. (Tr. 724). 

Dr. Rifai opined that Plaintiff was “stable” and cleared for Hepatitis C treatment. 

(Tr. 725). 

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On March 11, 2013, Plaintiff presented to Dr. Hawkes. (Tr. 710). Dr. 

Hawkes noted that: 

Patient showed up at the front window today stating that he needed to 

see me. He already had an appointment scheduled in two days. He 

states that his father will be coming home with hospice in the next few 

days and it will only be him and his mother to help his father. 

Therefore, he's going to cancel hi s appointment with orthopedics on 

the 18th. But he wants me to prescribe his pain medicine for his 

chronic back and neck pain. 

He states his asthma is doing okay but he wanted to have his 

prescriptions refilled. 

(Tr. 710). Plaintiff was walking with a cane. (Tr. 710). Dr. Hawkes wrote, “[w]ill 

refill the Percocet since his father will be home with hospice but I reinforced that 

this is only going to be temporary. I am not going to manage his narcotics.” (Tr. 

711). On April 9, 2013, Dr. Hawkes wrote: 

[T]here is confusion regarding his insurance. He has the medical 

assistance product and, therefore, no specialist will take this, 

especially the pain doctors. It appears I will be stuck managing this 

for his back pain. Told patient he needs to follow the rules strictly. He 

takes his meds for his back. 

(Tr. 708). 

On March 6, 2013, the Social Security Administration sent Plaintiff a Notice 

of Hearing that indicated he could have representation, along with an attached 

handout on Plaintiff’s right to free representation and a Receipt of Notice to 

complete and return. (Tr. 100-08). Plaintiff completed the Receipt of Notice on 

April 1, 2013, and returned it to the Social Security Administration. (Tr. 99). 

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On April 23, 2013, Plaintiff’s treating gastroenterologists responded to a 

medical records request from the state agency. (Tr. 692). The gastroenterologists 

indicated that they would not be willing to perform an examination or test relating 

to Plaintiff’s claim for disability. (Tr. 692). 

On April 23, 2013, Plaintiff appeared and testified before an ALJ. (Tr. 89). 

Plaintiff indicated that he had retained an attorney but was “irritated” with him 

because the attorney had not performed any work on the case and was not present 

for the hearing. (Tr. 92). Plaintiff testified “I’m not even going to wait for him...so 

I’m going to tell him I’m going to go ahead with it.” (Tr. 92). The following 

colloquy followed: 

ALJ: Let's talk about it for a second and then you can make a decision 

as to, I want to make sure you make a fully informed decision because 

it sounds like you're irritated with your attorney 

CLMT: Very irritated. 

ALJ: And I get that and I understand that. You obviously know you 

have that right of representation and you availed yourself to that and I 

can understand it's frustrating when this happens. With that being said 

you may find it helpful to have somebody here and represent you and 

I want you to think it through before you just proceed today and if you 

think you want to talk to this person or alternatively somebody else I 

can give you some time. It's not going to hurt your case at all for me 

to do that. I saw that you had asked for a continuance and my big 

concern was since I didn't have anything from this person I wanted to 

talk to you to let you know we didn't have anything. 

CLMT: I know. 

ALJ: And also to get an update on your medical records to see if 

there's additional information I need. 

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CLMT: There's a lot more information and I do have one paper I want 

to submit. 

ALJ: Well, why don't we do this. Okay, I'll take that but what I'm also 

going to do is I'll get an update as to your care but why don't you, as 

opposed to just proceeding today why don't you take some extra time. 

CLMT: That's what I'd like to do. 

ALJ: That's fine. I don't have any issue with that at all and the only 

thing I'll ask you to do, I'll get an update from your care today. I'm 

going to have you just review this form and sign it. It's basically an 

acknowledgment that the next time we call your case you'll agree to 

proceed. 

CLMT: Yeah. 

ALJ: Okay, just so we can do it that way but before that let's cover 

and see what we need in terms of medical records, okay? I did provide 

you a disc today which I suggest you take with you. 

CLMT: I don't know how to use a computer. 

ALJ: That's okay. You can take it with you and the good part about 

that is when you go talk to whoever is going to represent you you can 

provide them that disc and they can review it to see what medical 

records are there... 

(Tr. 92-93). The ALJ later explained, “[i]f you decide you want to get counsel the 

only suggestion I'll make to you is you go out today and I say today, go out real 

soon to look for somebody because you're going to find this hearing date is going 

to creep up on you again.” (Tr. 96). 

On June 11, 2013, the Social Security Administration sent Plaintiff a Notice 

of Hearing that indicated he could have representation, along with an attached 

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handout on Plaintiff’s right to free representation and a Receipt of Notice to 

complete and return. (Tr. 78-86). 

On July 23, 2013, Plaintiff appeared at a hearing before the ALJ. (Tr. 45). 

The ALJ stated, “the last time we talked we talked about your right of 

representation.” (Tr. 45). Plaintiff explained that the attorney did not want to 

handle his case. (Tr. 45). The ALJ asked, “you understand your right of 

representation as I provided you before?” to which Plaintiff replied, “yes.” (Tr. 

46). Plaintiff testified to problems with personal care because it had been a bad 

week, he was in a depressive state, and his father had passed away four months 

ago. (Tr. 52). Plaintiff testified to constant pain in his back that he treated with 

Percocet and baclofen, along with problems breathing, a history of broken bones, 

and liver problems caused by Hepatitis C. (Tr. 52-58). He testified that his physical 

impairments caused problems lifting, carrying, standing, and sitting, and that these 

problems were exacerbated by his obesity. (Tr. 59-60). He testified to problems 

sleeping. (Tr. 60-61). He testified that he lived with his mother, who did most 

household chores, and used a cane. (Tr. 60-61). He testified to breathing 

difficulties with exertion and exposure to environmental irritants. (Tr. 62). Plaintiff 

testified that he had been clean and sober, with no alcohol consumption, since June 

of 2011. (Tr. 62). He testified that his swollen liver caused pain, and that he had 

passed a psychiatric clearance to pursue additional liver treatments. (Tr. 64). He 

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testified to an inpatient psychiatric hospitalization earlier that year, depression, and 

hallucinations. (Tr. 64-65). He testified that he did not have friends, but hoped his 

teenage children could come live with him. (Tr. 65-70). 

On August 10, 2013, Plaintiff underwent a consultative psychiatric 

examination with Dr. Clova Walters, M.D. (Tr. 730). Dr. Walters noted Plaintiff 

subjective report of significant symptoms, including hallucinations, mood swings, 

anger, violence, depression, poor impulse control, racing thoughts, a history of 

suicidal attempts, paranoid ideation, and fear of his environment. (Tr. 731). 

Plaintiff reported that his hospitalization in Staten Island occurred after a suicide 

attempt by drinking motor oil. (Tr. 731). Plaintiff denied current alcohol or drug 

use and reported a history of cocaine and heroin use. (Tr. 731). Plaintiff exhibited 

distraction, poor attention, inattentiveness, depression, anxiety, and difficulty with 

serial sevens. (Tr. 732). Dr. Walters assessed marked mental health limitations. 

(Tr. 733). Plaintiff submitted a letter after receiving Dr. Walter’s opinion, 

indicating that he had been hospitalized multiple times in the previous year and 

that Dr. Walter’s mischaracterized his medications. (Tr. 267). 

The ALJ found that Plaintiff had severe impairments of bipolar disorder, 

major depressive disorder, degenerative disc disease of the spine, history of alcohol 

dependence, hepatitis C, chronic pain syndrome, allergic rhinitis, and asthma. (Tr. 

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29). The ALJ found that Plaintiff did not meet a Listing. (Tr. 30). The ALJ found 

that Plaintiff had to RFC to perform: 

[S]edentary work as defined in 20 CFR 404.1567(a) and 416.967(a). 

The claimant can do a limited range of sedentary work. He needs a 

sit/stand option every 15 minutes. The claimant can occasionally 

bend, balance, stoop, kneel, crouch, crawl and climb but he can never 

climb ladders, ropes or scaffolds. He is limited to simple, routine and 

repetitive work generally described as unskilled. The claimant can 

have no interaction with the public and only occasional interaction 

with coworkers and supervisors. The claimant must work in a low 

stress work environment described as no production, rate or pace 

requirements. He must avoid concentrated exposures to heat, cold 

humidity, dusts, odors and gases. 

(Tr. 31). The ALJ found that Plaintiff had no past relevant work, but could perform 

other work in the national economy. (Tr. 35-36). 

VI. Plaintiff Allegations of Error 

A. ALJ’s Duty to Develop the Record 

Plaintiff asserts that the ALJ erred in failing to obtain inpatient psychiatric 

records. (Pl. Reply at 1-4). Plaintiff must demonstrate that this error caused 

prejudice. “The question is not ‘whether every question was asked which might 

have been asked had [the claimant] been represented by an attorney, [but] whether 

the record reveals evidentiary gaps which result in unfairness or clear prejudice.’” 

Jozefick v. Shalala, 854 F. Supp. 342, 348 (M.D. Pa. 1994) (quoting Edwards v. 

Sullivan, 937 F.2d 580, 585–86 (11th Cir.1991)); see also 28 U.S.C. § 2111 

(“[T]he court shall give judgment after an examination of the record without regard 

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to errors or defects which do not affect the substantial rights of the parties.”); 

Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980) (“The fact that a claimant 

is unrepresented by counsel and has knowingly waived this right is not alone 

sufficient for remand. However, if it is clear that the lack of counsel prejudiced the 

claimant or that the administrative proceeding was marked by unfairness due to the 

lack of counsel, this is sufficient for remand, or reversal”) (citing Hess v. Secretary 

of HEW, 497 F.2d 837, 840 n.4 (3d Cir. 1974)); Dobrowolsky v. Califano, 606 F.2d 

403, 407 (3d Cir. 1979) (“When the claimant has been informed of his right to 

counsel before an administrative hearing and knowingly waives it, his lack of 

representation is not, of itself, cause for remand.. Lack of counsel is sufficient 

cause for remand only if supported by a showing of clear prejudice or unfairness at 

the administrative hearing”) (citing Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 

1969)). 

 The Court cannot engage in meaningful judicial review of Plaintiff's claim 

that the ALJ erred in failing to obtain documentation if the Court cannot review the 

allegedly wrongfully omitted documentation. See Herring v. Colvin, No. 3:12–cv–

2211–MWB (M.D.Pa. Sept. 29, 2014) (Adopting Report and Recommendation that 

claimant's appeal be denied where claimant alleged the ALJ should have obtained 

additional medical records, but did not proffer those records into evidence before 

the Appeals Council or Court). As in Herring, “Plaintiff may not need to proffer 

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new evidence. However, Plaintiff must proffer the evidence, inform the Court as to 

the content of that evidence, provide a new argument to the Court based on that 

evidence, or otherwise make a showing of prejudice.” Id.

Herring also noted that “allowing a claimant to secure a remand for failing 

to develop the record without any showing of prejudice would allow a back door 

around the materiality requirement of a sentence six remand.” Id. at 19. A sentence 

six remand requires that evidence be material. Id. (citing 42 U.S.C. §405(g)). 

Materiality requires “a reasonable possibility that the new evidence would have 

changed the outcome of the Secretary's determination.” Szubak v. Secretary of 

Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Herring continued: 

Arguing that the ALJ failed to develop the record is akin to arguing 

that there should be additional evidence taken before the 

Commissioner of Social Security. Although an ALJ has a heightened 

duty to develop the record for unrepresented claimants, the ALJ still 

has a duty to develop the record for claimants who are represented by 

counsel. Thus, most claimants could simply reword a request for a 

sentence six remand into a request for remand based on failing to 

develop the record. If there was evidence that existed prior to the 

ALJ’s decision, a claimant could argue that the ALJ failed to develop 

the record if the ALJ failed to take the requisite steps to obtain the 

evidence. If there was evidence that did not yet exist at the time of the 

ALJ’s decision, a claimant could argue that the ALJ failed to develop 

the record if the ALJ failed to leave the record open after the hearing. 

If prejudice is not required for a remand for failure to develop the 

record, then framing these arguments as a failure to develop the 

record, rather than a sentence six remand for consideration of new 

evidence, would dispense with the materiality requirement for a 

sentence six remand. 

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Third, requiring a judicial determination about the probability of 

prevailing would not preempt the Secretary’s authority to make a 

determination in the first place. Judicial determinations about the 

probability of prevailing exist throughout the legal sphere. A judge 

can deny a motion for summary judgment under Fed. R. Civ. Pro. 26 

because there is a reasonable possibility that a jury or fact-finder 

could find in favor of the nonmoving party without preempting the 

role of the jury or fact-finder. Similarly, a judge can grant a defense 

motion for summary judgment by finding that no reasonable factfinder would find for the plaintiff. Fed. R. Civ. Pro. 26. Moreover, as 

discussed above, judicial determinations about the probability of 

prevailing are required in the context of a sentence six remand. 

Id. at 19-20. 

Plaintiff failed to submit these psychiatric records to the Appeals Council or 

District Court. (Tr. 4). Plaintiff has not described the contents of these records. (Tr. 

270-74); (Pl. Brief); (Pl. Reply). The Court cannot evaluate whether omitting these 

records caused prejudice because the Court does not know the content of the 

records. Plaintiff provides a bare allegation that these records were “highly 

relevant to determining the nature and severity of Plaintiff’s depression and 

Bipolar Disorder,” but the Court is not required to accept this bare allegation. (Pl. 

Brief at 8); (Pl. Reply at 2). Plaintiff essentially asks the Court to find that the 

ALJ’s alleged error was harmful without any evidentiary support. (Pl. Brief); (Pl. 

Reply). The Court does not recommend remand on this ground. 

With regard to one of these hospitalizations, in October of 2012, Plaintiff 

notes that the record contains “references” to this hospitalization. (Pl. Brief at 7-8). 

Plaintiff fails to note that the record also contains treatment notes from the 

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hospitalization itself. (Pl. Brief). The ALJ specifically referenced this 

hospitalization, and findings that he was paranoid and reporting hallucinations. (Tr. 

32). This hospitalization does not support Plaintiff’s claim for benefits. (Tr. 693-

94). Although Plaintiff reported to other treating providers that the hospitalization 

occurred due to confusion with lithium dosage, he reported to emergency room 

staff that he allegedly accidentally overdosed on Ambien and baclofen. (Tr. 693). 

When questioned regarding alcohol use, providers noted that “he states he has no 

drank alcohol in six years; however, review of alcohol level from 3/26/11 was 

noted to be 346.” (Tr. 693). Reports from family members also indicated more 

recent alcohol use. (Tr. 693). Providers also noted that “his responses to questions 

are somewhat vague at times and inconsistent.” (Tr. 693). Examination indicated 

only wheezing and limited insight, and Plaintiff denied weight change, abdominal 

pain, arthritis, joint swelling, and hallucinations. (Tr. 694). This highlights 

inconsistencies in Plaintiff’s claims which, as discussed below, supported the 

ALJ’s adverse credibility finding, and contradicts his claims that he was unable to 

work because of pain and hallucinations. See SSR 96-7p.

Similarly, Plaintiff alleges that the ALJ committed harmful error because the 

ALJ did not explain at the hearing that free legal representation was available or 

determine whether Plaintiff had received the written materials as required by 

HALLEX. (Pl. Reply at 2). First, HALLEX is not binding when contradicted by a 

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statute, such as 28 U.S.C. § 2111, which requires Plaintiff to establish an error was 

not harmless. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 

837, 842, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984). Plaintiff has not 

identified what additional evidence or arguments would have been made if he had 

counsel present. (Pl. Brief, Pl. Reply). Consequently, Plaintiff has failed to make 

any allegations that would support a finding of prejudice. 

Second, the record shows that Plaintiff received his notice of representation. 

On March 6, 2013, the Social Security Administration sent Plaintiff a Notice of 

Hearing that indicated he could have representation, along with an attached 

handout on Plaintiff’s right to free representation and a Receipt of Notice to 

complete and return. (Tr. 100-08). Plaintiff testified that he resided at the residence 

to which the handout was sent. (Tr. 57. 100). Plaintiff completed the Receipt of 

Notice on April 1, 2013, and returned it to the Social Security Administration. (Tr. 

99). If Plaintiff was able to complete the Receipt of Notice, then he received the 

attached handout regarding the right to representation. (Tr. 99-108). Plaintiff 

asserts when he left “the first hearing, he was not armed with information that may 

have secured him legal representation,” but in fact, Plaintiff had already exercised 

his right to representation by hiring, then firing, an attorney. (Tr. 92). Plaintiff 

testified at both hearings that he understood his right to representation. (Tr. 45-46, 

92-93, 96). The ALJ continued Plaintiff’s first hearing and told him that if he did 

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not obtain counsel, they would proceed without counsel at his next hearing. (Tr. 

92-93, 96). The Court does not recommend remand on this ground. 

Plaintiff asserts that the ALJ failed to “explore non-exertional limitations,” 

such as concentration, completing tasks, fatigue, isolation, side effects of 

medications, and work pressures. (Pl. Brief at 9). Plaintiff fails to establish that the 

alleged failure to elicit testimony regarding non-exertional limitations was harmful. 

See 28 U.S.C. § 2111. The ALJ acknowledged Plaintiff’s claims elsewhere in the 

record that his pain impacted concentration, persistence, and pace, and that he used 

his cane in the mornings. (Tr. 27-37). Moreover, the only evidence of impaired 

concentration, completing tasks, fatigue, isolation, side effects, and issues with 

work pressure were Plaintiff’s subjective claims. Doc. 11. As discussed below, the 

ALJ properly found that Plaintiff’s subjective claims were not fully credible. Infra. 

With regard to concentration and completing tasks, the records prior to 

Plaintiff’s application contain no reference to impaired concentration except when 

Plaintiff was intoxicated, then Plaintiff reported in November of 2011 to the state 

agency that could not pay attention for more than “30 seconds,” then he reported to 

ReDCO on January 23, 2012 that he had “no” impaired attention or concentration, 

he successfully completed tests of attention and concentration at his consultative 

examination the next day, and Dr. Rifai observed normal attention and 

concentration (Tr. 248, 576, 646, 724). With regard to isolation, treatment records 

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indicated that Plaintiff socialized with friends, family, and neighbors and had no 

problem getting along with coworkers or authority figures. (Tr. 240, 646). With 

regard to fatigue, Plaintiff consistently denied fatigue. (Tr. 594, 694, 698). The 

Court discusses below that the record contains no mention of medication side 

effects and multiple instances where Plaintiff explicitly denied medication side 

effects, including his Function Report. Infra. These do not constitute post-hoc 

rationalizations because, as discussed below, the Court can reasonably discern 

from the ALJ’s decision that the ALJ relied on the overall inconsistencies of 

Plaintiff’s claims and contradictions between his claims in support of his 

application for benefits under the Act and his claims in treatment records. See 

Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 

F.3d 291, 305 (3d Cir. 2013) (Court may “uphold a decision of less than ideal 

clarity if the agency's path may reasonably be discerned”). 

Plaintiff asserts that the “ALJ failed to elicit from Plaintiff whether there 

were other sources of treatment whose records should be acquired.” (Pl. Brief at 7). 

Again, Plaintiff fails to establish that the alleged omission of additional records 

caused prejudice because Plaintiff has not submitted these additional records. See 

28 U.S.C. § 2111. Moreover, the ALJ asked Plaintiff whether there were any other 

treatment sources, and he testified, “no.” (Tr. 56). 

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Finally, Plaintiff asserts that the ALJ should have obtained a report and 

opinion from a treating physician. (Pl. Reply at 4). Plaintiff alleges that the ALJ 

“failed to seek a medical opinion.” (Pl. Brief at 8). Plaintiff has not submitted a 

report and opinion from a treating physician or identified what the opinion would 

say. (Pl. Brief; Pl. Reply). Plaintiff fails to demonstrate prejudice. See 28 U.S.C. § 

2111. Moreover, the ALJ and state agency did request that Plaintiff’s treating 

providers offer an opinion, and they refused to do so. On March 12, 2012, the state 

agency sent ReDCo a request for medical records, and also asked whether ReDCo 

would be willing to complete an evaluation for Plaintiff’s disability claim. (Tr. 

555-58). ReDCo submitted medical records, but did not respond to whether they 

would be willing to complete an evaluation. (Tr. 555-60). On April 23, 2013, 

Plaintiff’s treating gastroenterologists responded to a medical records request from 

the state agency. (Tr. 692). The gastroenterologists indicated that they would not 

be willing to perform an examination or test relating to Plaintiff’s claim for 

disability. (Tr. 692). The state agency asked if Dr. Kowalyshyn would be willing to 

complete an evaluation in connection with Plaintiff’s claim for benefits, and Dr. 

Kowalyshyn repeatedly responded “no.” (Tr. 580, 627). The state agency asked 

CRNP Schock if she would be willing to complete a disability evaluation, and she 

did not respond. (Tr. 600). The state agency asked Dr. Hawkes if he would be 

willing to complete a disability evaluation, and he did not respond. (Tr. 706). 

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Plaintiff also fails to note that the record contains opinions from Plaintiff’s 

psychiatrists which support the denial of benefits. (Pl. Brief); (Pl. Reply). The 

Regulations provide a “broad definition” of medical opinion. See Wrights v. 

Colvin, No. 3:13-CV-02516-GBC, 2015 WL 2344948, at *10 (M.D. Pa. May 14, 

2015) (citing 20 C.F.R. §1527(a)(2) (“Medical opinions are statements from 

physicians and psychologists or other acceptable medical sources that reflect 

judgments about the nature and severity of your impairment(s), including your 

symptoms, diagnosis and prognosis, what you can still do despite impairment(s), 

and your physical or mental restrictions.”)). Here, ReDCO psychiatrists opined that 

Plaintiff’s GAF was no lower than 55.2

 GAF scores are more probative of nondisability than disability. This is because: 

The GAF score allows a clinician to indicate his judgment of a 

person's overall psychological, social and occupational functioning, in 

order to assess the person's mental health illness. A GAF score is set 

within a particular range if either the symptom severity or the level of 

functioning falls within that range. The score is useful in planning 

treatment and predicting outcomes. Id. The GAF rating is the single 

value that best reflects the individual's overall functioning at the time 

 2 Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 (M.D. Pa. Jan. 

23, 2014) (“The GAF score allows a clinician to indicate his judgment of a person's 

overall psychological, social and occupational functioning, in order to assess the 

person's mental health illness... A GAF score of 51 to 60 represents moderate 

symptoms or any moderate difficulty in social, occupational, or school 

functioning.. A GAF score of 61 to 70 represents some mild symptoms or some 

difficulty in social, occupational, or school functioning, but generally functioning 

pretty well with some meaningful interpersonal relationships”) (citing Diagnostic 

and Statistical Manual of Mental Disorders 3–32 (4th ed.1994). 

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of examination. The rating, however, has two components: (1) 

symptom severity and (2) social and occupational functioning. The 

GAF is within a particular range if either the symptom severity or the 

social and occupational level of functioning falls within that range. 

When the individual's symptom severity and functioning level are 

discordant, the GAF rating reflects the worse of the two. 

Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 (M.D. Pa. Jan. 

23, 2014). Thus, a GAF score of 55 indicates that neither the claimant’s functional 

impairment nor symptoms are more than moderate. Id. The Court does not 

recommend remand on this ground. 

B. Obesity 

Like development of the record, a claimant alleging an error at step two 

must show it was harmful. At step two, the ALJ first considers whether there are 

any medically determinable impairments and then determines whether any of the 

medically determinable impairments are “severe.” 20 C.F.R. § 404.1529. 

Determining whether a claimant has any medically determinable, severe 

impairments is a threshold test. See 20 C.F.R. § 404.1520(c). If a claimant has any 

severe impairments, the evaluation process continues. See 20 C.F.R. § 

404.1520(d)-(g). Thus, an error at step two will be harmless unless the claimant 

identifies an error in assessing the impairment at subsequent steps. See Rutherford 

v. Barnhart, 399 F.3d 546, 552–53 (3d Cir.2005) (Remand is not appropriate 

where ALJ's error does not affect the ultimate outcome); 28 U.S.C.A. § 2111 

(“[T]he court shall give judgment after an examination of the record without regard 

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to errors or defects which do not affect the substantial rights of the parties.”). For 

instance, in Rutherford, the Court held that any error in evaluating the claimant’s 

obesity was harmless because: 

 [Claimant] has not specified how that factor would affect the fivestep analysis undertaken by the ALJ, beyond an assertion that her 

weight makes it more difficult for her to stand, walk and manipulate 

her hands and fingers. That generalized response is not enough to 

require a remand. 

Rutherford, 399 F.3d at 553. Plaintiff acknowledges that he must demonstrate that 

“the ALJ’s error at step two also influenced the ALJ’s RFC analysis.” (Pl. Reply at 

5) (quoting McClease v. Commissioner of Soc. Sec., 2009 WL 3497775, at *10 

(E.D. Pa. 2009)). 

 Plaintiff asserts that remand is required because “close scrutiny” is required 

when there is a “denial of benefits” at step two. (Pl. Brief at 14) (citing McCrea v. 

Commissioner of Social Security, 370 F.2d 357 (3d Cir. 2004); Newell v. 

Commissioner of Social Security, 347 F.3d 541 (3d Cir. 2003). In those cases, the 

analysis did not proceed beyond step two because there were no severe 

impairments. Id. Plaintiff asserts that these facts were “mere happenstance,” and 

that McCrea and Newell should apply even when at least one severe impairment is 

found. (Pl. Brief at 14). However, close scrutiny is only required when there is a 

denial of benefits at step two. Id. Denial of benefits at step two only occurs when 

there are no severe impairments. See 20 C.F.R. § 404.1520(d)-(g). Consequently, 

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the fact that there were no severe impairments in McCrea and Newell was the only 

reason that close scrutiny was required; this fact was the crux of those cases. 

McCrea, 370 F.2d at 357; Newell, 347 F.3d at 541. 

In contrast, Rutherford directly addresses how to evaluate errors at step two 

when at least one impairment is severe. Rutherford, 399 F.3d at 553. The Court 

will not rely on McCrea or Newell, dicta as applied to this case, when there is 

relevant binding precedent. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 

147269, at *1 (M.D. Pa. Jan. 13, 2016) (citing Kool, Mann, Coffee & Co. v. Coffey,

300 F.3d 340, 355 (3d Cir.2002) (Statements that are “not necessary to the actual 

holding of the case” are “dicta” and “not binding”); Calhoun v. Yamaha Motor 

Corp., 216 F.3d 338, 344 n. 9 (3d Cir.2000) (“Insofar as this determination was not 

necessary to either court's ultimate holding, however, it properly is classified as 

dictum. It therefore does not possess a binding effect on us pursuant to the 'law of 

the case' doctrine.”); Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317, 324 

(3d Cir.1982) (“[D]ictum, unlike holding, does not have the strength of a decision 

'forged from actual experience by the hammer and anvil of litigation,' a fact to be 

considered when assessing its utility in the context of an actual controversy. 

Similarly, appellate courts must be cautious to avoid promulgating unnecessarily 

broad rules of law.”) (quotations omitted). 

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 Here, Plaintiff alleges only that the ALJ’s error “tainted the ALJ’s analysis 

at the subsequent steps of the sequential evaluation,” that obesity “may” cause 

more pain and limitation on a weight-bearing joint, and that Plaintiff testified to 

pain and limitations in lifting, carrying, and standing. (Pl. Reply at 6) (citing SSR 

02-1p; Tr. 59). This is a generalized response and, pursuant to Rutherford, “is not 

enough to require a remand.” Rutherford, 399 F.3d at 553. 

 Plaintiff cites cases from another District to argue that if an impairment 

“may” have an impact on the RFC, the Court should remand. (Pl. Reply at 6) 

(quoting Jennings v. Astrue, 2009 WL 7387721 at *16 (E.D. Pa. 2009)). However, 

this Court is bound by Rutherford, not Jennings, and the Third Circuit in 

Rutherford required more than a “generalized response” to establish harmless error 

and remand. Rutherford, 399 F.3d at 553. 

Plaintiff notes that “defendant fails to point to a single element of the ALJ’s 

RFC finding that reflects additional limitations attributable to his obesity.” (Pl. 

Reply at 5). Defendant does not bear the burden to identify which elements of the 

RFC finding reflect Plaintiff’s obesity. Plaintiff bears the burden to identify 

additional limitations that were not incorporated into the RFC finding, and 

demonstrate that the ALJ’s omission of the additional limitations lacked substantial 

evidence. See Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Plaintiff 

submitted objective evidence of his impairment of obesity, but the only evidence of 

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additional limitations were his subjective claims and Dr. Muthiah’s opinion. Doc. 

11. As discussed below, the ALJ properly found that Plaintiff’s subjective claims 

were not fully credible and properly relied on Dr. Hutz’s opinion over Dr. 

Muthiah’s opinion. Infra. Given that Plaintiff has failed to identify specific 

additional limitations that should have been in the RFC, and substantial evidence 

supports the ALJ’s credibility analysis, the Court would not direct a verdict in 

Plaintiff’s favor if the question of whether the ALJ sufficiently accommodated 

Plaintiff’s obesity was before a jury. See Reefer v. Barnhart, 326 F.3d 376, 379 (3d 

Cir. 2003). 

C. Medical Opinions 

Plaintiff asserts that the ALJ erred in crediting Dr. Hutz’s non-treating 

opinion over Dr. Muthiah’s non-treating opinion. Plaintiff asserts that the 

Regulations bestow deference on non-treating medical opinions because the 

Regulations require the ALJ to “evaluate” all medical opinions. (Pl. Reply at 7) 

(citing 20 C.F.R. §416.927(c)). A requirement to evaluate a medical opinion does 

not equate to a requirement to defer to a medical opinion. In contrast, the 

Regulations and case law specifically bestow “special deference” on treating 

source medical opinions. Standards for Consultative Examinations and Existing 

Medical Evidence, 56 FR 36932-01 at *36936 (“as long as the treating source is 

someone entitled to special deference, and all other factors are equal, we will 

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always give more weight to treating source medical opinions than to opinions from 

other sources”); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (“A 

cardinal principle guiding disability eligibility determinations is that the ALJ 

accord treating physicians' reports great weight, especially “when their opinions 

reflect expert judgment based on a continuing observation of the patient's condition 

over a prolonged period of time.”). In the absence of any legal authority bestowing 

deference on non-treating source medical opinions, the Court evaluates the ALJ’s 

assignment of weight to non-treating source medical opinions under the general 

substantial evidence standard. 

The ALJ specifically addressed Dr. Muthiah’s sitting limitation, writing that: 

However, the undersigned disagrees with the limitation to sitting for 

three hours since this is not supported by the physical evaluation 

findings of multiple physicians including the claimant's treating 

physician Dr. Hawks and, indeed, the consultative evaluator's own 

physical evaluation that shows decreased range of motion with normal 

strength and a normal neurological evaluation (Exhibit 6F). 

(Tr. 33). The ALJ’s explanation that Dr. Muthiah’s opinion was not supported by 

the examination findings or clinical findings by treating providers is sufficiently 

specific to determine whether substantial evidence supports his assignment of 

weight to Dr. Muthiah’s opinion. See Christ the King Manor, Inc. v. Sec'y U.S. 

Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (Court may 

“uphold a decision of less than ideal clarity if the agency's path may reasonably be 

discerned”); Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (ALJ is not 

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required to “use particular language or adhere to a particular format in conducting 

his analysis” and instead must only “ensure that there is sufficient development of 

the record and explanation of findings to permit meaningful review.”). 

Plaintiff asserts that the ALJ impermissibly used lay reinterpretation of the 

evidence to supplant the non-treating source medical opinion. The prohibition on 

lay reinterpretation of the evidence was retained by Regulations enacted in 1991 

with regard to treating sources. See 20 C.F.R. §404.1527(c)(2); Tilton v. Colvin, 

No. 1:14-CV-02219-YK-GBC, 2016 WL 1580003, at *5 (M.D. Pa. Mar. 31, 

2016), report and recommendation adopted, No. 1:14-CV-2219, 2016 WL 

1569895 (M.D. Pa. Apr. 19, 2016) (citing Burns v. Colvin, No. 1:14–CV–1925, 

2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (citing United States v. Texas, 507 U.S. 

529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993); Sebelius v. Cloer, ___ U.S. 

____, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013); Connecticut Nat. Bank v. 

Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); BFP v. 

Resolution Trust Corp., 511 U.S. 531, 543, 114 S.Ct. 1757, 128 L.Ed.2d 556 

(1994)). 

However, Section 404.1527 abrogated these cases with regard to nontreating sources. When regulatory language “speak[s] directly” to an issue, and is 

not “compatible with preexisting practice,” the regulation abrogates common-law. 

Sebelius v. Cloer, –––U.S. ––––, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013) 

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(internal citations omitted); BFP v. Resolution Trust Corp., 511 U.S. 531, 543, 114 

S.Ct. 1757, 128 L.Ed.2d 556 (1994) (internal citations omitted). The Regulations 

provide that ALJs are “not bound by any findings made by State agency medical or 

psychological consultants, or other program physicians or psychologists.” 20 

C.F.R. § 404.1527(e)(2)(i). Prior cases held that the ALJ was bound by any 

uncontradicted medical opinions, even from non-treating sources. See Frankenfield 

v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 29–30 

(3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 37, 36–37 (3d Cir. 1985); 

Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983); Van Horn v. Schweiker, 717 

F.2d 871, 874 (3d Cir. 1983); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 494 (3d Cir. 

1980); Rossi v. Califano, 602 F.2d 55, 58–59, (3d Cir. 1979); Fowler v. Califano,

596 F.2d 600, 603 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 

1978). Consequently, 20 C.F.R. §404.1527(e)(2)(i) speaks directly to this issue, is 

incompatible with the prior law, and abrogates the prior cases with regard to nontreating opinions. An ALJ is no longer prohibited from reinterpreting medical 

evidence to supplant the opinion of a non-treating source. See 20 C.F.R. 

§404.1527(e)(2)(i). 

Regardless, the ALJ was not required to undertake lay reinterpretation of 

medical evidence to evaluate Dr. Muthiah’s opinion. Dr. Hutz reviewed the record, 

including Dr. Muthiah’s opinion, and indicated that Dr. Muthiah overly relied on 

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subjective complaints rather than objective findings and was inconsistent with the 

treatment record. (Tr. 117-24). The ALJ relied on Dr. Hutz’s opinion. (Tr. 35). The 

Court can reasonably discern that the ALJ relied on Dr. Hutz’s expert opinion of 

the medical evidence, including Dr. Muthiah’s opinion, and did not rely solely on 

lay reinterpretation of medical evidence. See Christ the King Manor, Inc. v. Sec'y 

U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (internal 

quotations omitted). 

D. Credibility 

When making a credibility finding, “the adjudicator must consider whether 

there is an underlying medically determinable physical or mental 

impairment(s)...that could reasonably be expected to produce the individual’s pain 

or other symptoms.” SSR 96-7P. Then: 

[T]he adjudicator must evaluate the intensity, persistence, and limiting 

effects of the individual’s symptoms to determine the extent to which 

the symptoms limit the individual’s ability to do basic work activities. 

For this purpose, whenever the individual’s statements about the 

intensity, persistence, or functionally limiting effects of pain or other 

symptoms are not substantiated by objective medical evidence, the 

adjudicator must make a finding on the credibility of the individual’s 

statements based on a consideration of the entire case record. 

SSR 96-7P; see also 20 C.F.R. § 416.929. The Third Circuit explained in Mason v. 

Shalala, 994 F.2d 1058 (3d Cir. 1993): 

 An ALJ must give serious consideration to a claimant's subjective 

complaints of pain, even where those complaints are not supported by 

objective evidence. Ferguson v. Schweiker, 765 F.2d 31, 37 (3d 

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Cir.1985). “While there must be objective evidence of some condition 

that could reasonably produce pain, there need not be objective 

evidence of the pain itself.” Green, 749 F.2d at 1071. Where medical 

evidence does support a claimant's complaints of pain, the complaints 

should then be given “great weight” and may not be disregarded 

unless there exists contrary medical evidence. Carter, 834 F.2d at 65; 

Ferguson, 765 F.2d at 37. 

Id. at 1067-68. Plaintiff’s underlying impairments were corroborated by objective 

medical evidence, but not his complaints. His subjective claims were entitled to 

“serious consideration,” but not great weight. Mason, 994 F.2d at 1067. 

Plaintiff asserts that the ALJ erred in failing to explicitly mention how he 

evaluated two factors relevant to credibility: medication usage and explanation for 

conservative treatment. (Pl. Brief at 9). Similarly, Plaintiff asserts that the ALJ 

“fail[ed] to consider” testing that showed liver and spine abnormalities. (Pl. Brief 

at 15). The Regulations require the ALJ to “consider” these factors. 20 C.F.R. 

§404.1529. However, “there is a distinction between what an adjudicator must 

consider and what the adjudicator must explain in the disability determination or 

decision.” SSR 06–3p. See also Phillips v. Barnhart, 91 Fed.Appx. 775, 780 (3d 

Cir.2004) (“the ALJ's mere failure to cite specific evidence does not establish that 

the ALJ failed to consider it”) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th 

Cir.1998)). In other words, the word “consider” has been construed by the 

Commissioner and courts to not require citation or written explanation. Id. Thus, 

an ALJ does not need to cite each factor considered in the analysis. See Francis v. 

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Comm'r Soc. Sec. Admin., 414 Fed.Appx. 802, 804–05 (6th Cir.2011) (“Although 

the regulations instruct an ALJ to consider these factors,” they do not require “an 

exhaustive factor-by-factor analysis.”). 

The ALJ noted that Plaintiff primarily received treatment from a primary 

care physician. (Tr. 32). As discussed above, the ALJ’s failure to cite Plaintiff’s 

explanation for failing to treat with specialists does not mean the ALJ failed to 

consider this explanation. Supra. Moreover, while the ALJ must consider 

Plaintiff’s explanation, the ALJ is not required to accept Plaintiff’s explanation.3

 3

 The ALJ was not required to accept this explanation as inherently true. In the 

Social Security cases before the undersigned where the claimant had an Access 

Card, claimants are able to follow with specialists, including pain management 

specialists. Buckner v. Colvin, No. 1:15-CV-00175-YK-GBC, 2016 WL 1621993, 

at *8 (M.D. Pa. Mar. 30, 2016), report and recommendation adopted, No. 1:15-

CV-175, 2016 WL 1595346 (M.D. Pa. Apr. 21, 2016) (Claimant with medical 

assistance card was able to treat with neurologists); Treadway v. Colvin, No. 3:14-

CV-01697-GBC, 2015 WL 5934259 (M.D. Pa. Oct. 7, 2015) (Claimant with 

Access Card received treatment from mental health specialists); Gartland v. 

Colvin, No. 3:13-CV-02668-GBC, 2015 WL 5695311, at *6 (M.D. Pa. Sept. 28, 

2015) (Claimant was able to see a rehabilitation orthopedist, an 

otorhinolaryngologist, and a mental health specialist with a medical access card); 

Jones v. Colvin, No. 1:13-CV-02161-GBC, 2014 WL 4796491, at *8 (M.D. Pa. 

Sept. 26, 2014) (Claimant with Access card received treatment from pain 

management and mental health specialists); Wilson v. Colvin, No. 3:13-CV-02401-

GBC, 2014 WL 4105288, at *11 (M.D. Pa. Aug. 19, 2014) (Claimant testified that 

she would have been able to see a neurologist if she had not lost her Access Card, 

and was able to see a rheumatologist, an orthopedist, a neurologist, and a pain 

management specialist once she regained her Access Card); Wilson v. Colvin, No. 

3:13-CV-02401-GBC, 2014 WL 4105288, at *11 (M.D. Pa. Aug. 19, 2014) 

(Claimant with Access Card was able to treat with an endocrinologist). However, 

rather than take judicial notice of the cases, the undersigned relies on Plaintiff’s 

burden of production, and his failure to produce any evidence other than his 

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The ALJ noted that Plaintiff saw other specialists, such as a psychiatrist and 

gastroenterologist. (Tr. 33). Plaintiff asserts that his medication usage supports his 

claim because his primary care physicians consistently prescribed opiates. (Pl. 

Reply at 9). Aside from heroin, there is no evidence of opiate use before Plaintiff’s 

December 2011 consultative examination. (Tr. 553). Plaintiff’s primary care 

physicians prescribed opiates reluctantly, at best, and Plaintiff switched primary 

care physicians when Dr. Kowalyshyn refused to continue prescribing opiates. (Tr. 

582-85, 601-09, 708-14). 

Even if the ALJ had erred in considering Plaintiff’s medication and 

treatment, “whether the error is harmless depends on whether the other reasons 

cited by the ALJ in support of [the] credibility determination provide substantial 

evidence for her decision.” Brumbaugh v. Colvin, 3:14–CV–888, 2014 WL 

5325346, at *16 (M.D.Pa. Oct. 20, 2014). The ALJ also explained that “physical 

evaluations are relatively normal,” he “reported good control of his asthma,” 

mental status evaluations were “relatively normal,” he was assessed a GAF of 55, 

the record was “scant” with regard to Plaintiff’s “very old date last insured [of] 

June 30, 2006,” and Dr. Hutz’s opinion supported the RFC and was “mostly 

consistent with the objective findings.” (Tr. 32-35). Plaintiff does not address the 

lack of objective medical evidence on examination, lack of records regarding his 

 

subjective claims that he was unable to see a specialist because they would not take 

his insurance. See 42 U.S.C. § 423(d)(5)(A). 

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date last insured, or Dr. Hutz’s opinion. (Pl. Brief); (Pl. Reply). If any reasonable 

person would resolve the conflict in medical opinions in favor of Dr. Hutz, not Dr. 

Muthiah, substantial evidence supports the ALJ’s reliance on Dr. Hutz. Reefer v. 

Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). 

Plaintiff asserts that the Court should not rely on Defendant’s assertions 

because they violate the Chenery doctrine. (Pl. Reply 9) (citing Sec. & Exch. 

Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 459, 87 L. Ed. 626 

(1943) (“The grounds upon which an administrative order must be judged are those 

upon which the record discloses that its action was based”). However, although the 

Court may not affirm based on “post-hoc rationalizations,” Courts have a 

“responsibility to uphold a decision of less than ideal clarity if the agency's path 

may reasonably be discerned.”Christ the King Manor, Inc. v. Sec'y U.S. Dep't of 

Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013) (quoting Motor Vehicle 

Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. 

Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983); Bowman Transportation, Inc. v. 

Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 

(1974)). 

The ALJ is entitled to deference with regard to credibility determinations. 

See Szallar v. Comm'r Soc. Sec., No. 15-1776, 2015 WL 7445399, at *1 (3d Cir. 

Nov. 24, 2015) (“the ALJ's assessment of his credibility is entitled to our 

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substantial deference”) (citing Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d 

Cir.2014)). Moreover, “[n]either the district court nor this court is empowered to 

weigh the evidence or substitute its conclusions for those of the fact-finder.” 

Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citing Early v. Heckler, 

743 F.2d 1002, 1007 (3d Cir.1984)). The Court does not recommend remand on 

these grounds. 

VII. Conclusion 

The Court finds that the ALJ made the required specific findings of fact in 

determining whether Plaintiff met the criteria for disability, and the findings were 

supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Brown, 845 

F.2d at 1213; Johnson, 529 F.3d at 200; Pierce, 487 U.S. at 552; Hartranft, 181 

F.3d at 360; Plummer, 186 F.3d at 427; Jones, 364 F.3d at 503. Substantial 

evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 

503 (3d Cir. 2004). 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, 

565 (1988) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 

229 (1938)). “Stated differently, this standard is met if there is sufficient evidence 

‘to justify, if the trial were to a jury, a refusal to direct a verdict.’” Id. (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 

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(1951)). Here, a reasonable mind might accept the relevant evidence as adequate. 

The Court would not direct a verdict in Plaintiff’s favor if the issues were before a 

jury. Accordingly, it is HEREBY RECOMMENDED: 

I. This appeal be DENIED, as the ALJ’s decision is supported by 

substantial evidence; and 

II. The Clerk of Court close this case. 

The parties are further placed on notice that pursuant to Local Rule 72.3: 

Any party may object to a Magistrate Judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the Magistrate Judge 

and all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

Judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The Judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The Judge may also receive 

further evidence, recall witnesses or recommit the matter to the 

Magistrate Judge with instructions. 

Dated: August 25, 2016 s/Gerald B. Cohn 

 GERALD B. COHN 

 UNITED STATES MAGISTRATE JUDGE 

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