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noting that step two of the disability analysis requires a disorder to withstand the duration requirement
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CIVIL ACTION NO. 18-1001
01-07-2020
Rhonda Lynn EDINGER, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
ORDER
Plaintiff Rhonda Lynn Edinger seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act. The Court referred the case to United States Magistrate Judge Richard A. Lloret, who has issued a Report and Recommendation ("R&R") that Plaintiff's request for review be denied.
Edinger has not filed objections to the R&R. After an independent review of the record and the R&R, the Court concludes that the ALJ's decision was supported by substantial evidence.
AND NOW , this 7th day of January 2020, upon careful and independent consideration of Plaintiff's Complaint, the Answer to the Complaint, Plaintiff's Brief in Support of Complaint, the Commissioner's Response to Request for Review, the Social Security Administrative Record, and all related filings, and upon review of the R&R of United States Magistrate Judge Richard A. Lloret, it is hereby ORDERED that:
Doc. No. 3.
Doc. No. 6.
Doc. No. 10.
Doc. No. 13.
Doc. No. 7.
1. The R&R [Doc. No. 15] is APPROVED AND ADOPTED ;
2. The Complaint will be dismissed by separate Order.
It is so ORDERED .
REPORT AND RECOMMENDATION
RICHARD A. LLORET, U.S. Magistrate Judge
IN THE UNITED STATES COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RHONDA LYNN EDINGER, Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant
Andrew M. Saul became the Commissioner of Social Security on June 4, 2019, and is therefore substituted for Nancy A. Berryhill as the defendant in this action. See Fed. R. Civ. P. 25(d)(1) ; 42 U.S.C. § 205(g) (Social Security disability actions "survive notwithstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy in such office").
CIVIL ACTION No. 18-cv-01001-CMR
Filed 12/13/19
Rhonda Lynn Edinger was denied social security benefits by the decision of an Administrative Law Judge ("ALJ"). Ms. Edinger contends that the ALJ's unfavorable decision was reached in error. Pl. Br. at 3–11 (Doc. No. 10). Specifically, Ms. Edinger argues that the ALJ erred by (1) not concluding that her carpal tunnel syndrome was a severe impairment; (2) not properly considering evidence of her carpal tunnel syndrome ; (3) presenting an improper hypothetical to the vocational expert; and (4) failing to give sufficient weight to the testimony of the vocational expert regarding certain limitations. Id. The Commissioner of Social Security ("Commissioner") responds that the ALJ's decision was supported by substantial evidence. Def. Br. at 3–10 (Doc. No. 13).
Because Ms. Edinger's brief does not contain internal page numbers, I have cited to the ECF-generated pagination throughout this report and recommendation.
After careful review, I agree with the Commissioner and find that the ALJ's decision is supported by substantial evidence. For the reasons set forth below, I respectfully recommend that Ms. Edinger's request for review be denied and the final decision of the Commissioner be affirmed.
PROCEDURAL HISTORY
Ms. Edinger filed claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") on March 2, 2015. R. 83, 98. She alleged a disability onset date of July 18, 2014. Id. Her applications were initially denied on June 26, 2015. R. 117–26.
After these denials, Ms. Edinger requested an administrative hearing before an ALJ. R. 127–36. The hearing was held on February 28, 2017. R. 48–82 (transcript of hearing). Ms. Edinger and a vocational expert, Dr. Paul Anderson, testified. Id. Following the hearing, on April 26, 2017, the ALJ issued a written decision, denying Ms. Edinger's claims. R. 14–30. The Appeals Council subsequently denied Ms. Edinger's request for review. R. 1–4. This appeal follows.
FACTUAL BACKGROUND
A. The claimant's background.
Ms. Edinger was born in September 1973, making her a "younger individual" under the regulations at all times relevant to her application. R. 83, 98. She did not complete high school, finishing only the tenth grade. R. 225. In the past, Ms. Edinger has worked as an escort vehicle driver and car jockey. R. 23. Ms. Edinger stopped working after July 18, 2014, her alleged onset date, when she was involved in a car accident, after a "bad flare-up" of her emphysema and chronic obstructive pulmonary disease ("COPD"). R. 55.
At the hearing, Ms. Edinger testified that she also had worked cleaning cars in late 2015, but this employment did not constitute substantial gainful activity. R. 56.
Ms. Edinger applied for social security benefits on March 2, 2015, alleging disability based on her COPD, a knee problem, emphysema, a back problem, and bipolar disorder. R. 83, 98.
B. The ALJ's decision.
The ALJ issued an unfavorable decision on April 26, 2017, finding Ms. Edinger not disabled as defined by the Social Security Act. R. 14–25. In reaching this decision, the ALJ made the following findings of fact and conclusions of law pursuant to Social Security's five-step sequential evaluation. At step one, the ALJ concluded that Ms. Edinger has not engaged in substantial gainful activity ("SGA") since her alleged onset date of July 18, 2014. R. 16. The ALJ recognized that Ms. Edinger has worked after this date but found that this subsequent employment did not rise to the level of SGA. Id.
An ALJ evaluates each case using a sequential process until a finding of "disabled" or "not disabled" is reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful activity; (2) has a severe "medically determinable" physical or mental impairment or combination of impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed in the social security regulations and mandate a finding of disability; (4) has the residual functional capacity to perform the requirements of her past relevant work, if any; and (5) is able to perform any other work in the national economy, taking into consideration her residual functional capacity, age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v).
The ALJ found Ms. Edinger met the insured status requirements through March 31, 2017. R. 16.
At step two, the ALJ determined that Ms. Edinger had eight severe impairments: COPD/emphysema, degenerative disc disease of the lumbar spine, right knee degenerative joint disease status post total knee replacement, obesity, obstructive sleep apnea, an affective disorder, an anxiety disorder, and post-traumatic stress disorder ("PTSD"). R. 17. The ALJ found her carpal tunnel syndrome and history of crack cocaine dependence to be nonsevere. Id.
At step three, the ALJ compared Ms. Edinger's severe impairments to those contained in the "Listings." The ALJ concluded that Ms. Edinger's impairments, singly or in combination, did not meet or equal the criteria of any of the Listings. R. 17–19. Reaching this conclusion, the ALJ specifically ruled out Listings §§ 1.02A (relating to joint dysfunction), 1.04 (relating to spinal disorders), 3.02 (relating to chronic respiratory disorders), 12.04 (relating to depressive disorders ), 12.06 (relating to anxiety disorders), and 12.15 (relating to trauma disorders). Id.
The regulations contain a series of "Listings" that describe symptomology related to various impairments. See 20 C.F.R. Pt. 404, Subpt. P., App. 1. If a claimant's documented symptoms meet or equal one of the impairments, "the claimant is conclusively presumed to be disabled." Bowen v. Yuckert , 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If not, the sequential evaluation continues to step four, where the ALJ determines whether the impairments assessed at step two preclude the claimant from performing any relevant work she may have performed in the past. Id.
The ALJ also considered Listing § 3.10 but this does not correspond to any impairment, as it is still marked as "reserved." See 20 C.F.R. Pt. 404, Subpt. P., App. 1. It appears the ALJ may have meant Listing § 3.09, relating to chronic pulmonary hypertension.
At step four, the ALJ assessed Ms. Edinger's residual functional capacity ("RFC"), or "the most [Ms. Edinger] can still do despite [her] limitations." 20 C.F.R. §§ 404.1545, 416.945. After a review of the objective medical evidence and subjective medical opinion evidence, the ALJ concluded that Ms. Edinger retained the capability to perform sedentary work, subject to certain limitations. R. 19–23. These restrictions included:
As defined by the regulations, sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. §§ 404.1567(a), 416.967(a). "Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." Id. Therefore, jobs are considered sedentary work "if walking and standing are required occasionally and other sedentary criteria are met." Id.
[S]he is limited to occasional climbing of ramps and stairs. The claimant should never climb ladders, ropes or scaffolds. She is limited to occasional balancing, stooping, kneeling, crouching, and crawling. The claimant should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, vibration, fumes, odors, dust, gases and poor ventilation. She should avoid all exposure to hazards such as heights and moving machinery on the ground like forklifts. Furthermore, the claimant can understand,
remember and carry out simple instructions.
R. 19.
Based on her RFC, the ALJ found that Ms. Edinger is unable to perform her past relevant work as an escort vehicle driver and a car jockey. R. 23.
At step five, the ALJ identified three representative occupations that exist in significant numbers in the national economy that Ms. Edinger could perform considering her age, education, work experience, and RFC. R. 24–25. These jobs were food and beverage order clerk, nut sorter, and final assembler. R. 24.
Because the ALJ identified jobs that Ms. Edinger could perform, she ultimately found Ms. Edinger "not disabled." R. 25.
DISCUSSION
A. The standard of review.
My review of the ALJ's decision is deferential; I am bound by her findings of fact to the extent those findings are supported by substantial evidence in the record. Knepp v. Apfel , 204 F.3d 78, 83 (3d Cir. 2000) (citing to Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999) ). Accordingly, my review of the ALJ's findings of fact is limited to determining whether substantial evidence supports the ALJ's decision. Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999) (citing to 42 U.S.C. § 405(g) ). If the ALJ's decision is supported by substantial evidence, her disability determination must be upheld. Rutherford v. Barnhart , 399 F.3d 546, 552 (3d Cir. 2005) ; see also 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Evidence is substantial where it consists of "more than a mere scintilla but may be less than a preponderance." Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988).
I must rely on the record developed during the administrative proceedings along with the pleadings in making my determination. See 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec. , 667 F.3d 356, 359 (3d Cir. 2011). I must also defer to the ALJ's evaluation of evidence, assessment of the witnesses, and reconciliation of conflicting expert opinions. Diaz v. Comm'r of Soc. Sec. , 577 F.3d 500, 506 (3d Cir. 2009).
The ALJ's legal conclusions and application of legal principles are subject to "plenary review." See Krysztoforski v. Chater , 55 F.3d 857, 858 (3d Cir. 1995). I must determine whether the ALJ applied the proper legal standards in reaching the decision. See Coria v. Heckler , 750 F.2d 245, 247 (3d Cir. 1984). Accordingly, I can overturn an ALJ's decision based on an incorrect application of a legal standard even where I find that the decision is supported by substantial evidence. Payton v. Barnhart , 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006) (citing to Friedberg v. Schweiker , 721 F.2d 445, 447 (3d Cir. 1983) ).
B. The ALJ did not err in determining that Ms. Edinger's carpal tunnel syndrome was not a severe impairment.
Ms. Edinger's first and second claims challenge the ALJ's step-two analysis. See Pl. Br. at 4–7. She alleges that the ALJ incorrectly concluded that her carpal tunnel syndrome was not a severe impairment. Id. at 4–5. She contends that in making this determination, the ALJ erred by not giving enough weight to certain objective medical evidence from her treating physician. Id. at 6–7. The Commissioner argues that the ALJ's step-two determination should not be disturbed because the objective medical evidence did not establish any limitations; the ALJ acknowledged the carpal tunnel diagnosis but found that it was not severe for valid reasons; and if there was any error, it was harmless. Def. Br. at 3–6. After reviewing the ALJ's opinion and the administrative record, I agree with the Commissioner and respectfully recommend that these claims be denied.
At step two, the ALJ is required to consider whether the claimant suffers from a medically determinable impairment (or combination of impairments) that is "severe" and lasts for the "duration requirement." See 20 C.F.R. §§ 404.1520(c), 416.920(c). To be severe, the impairment must significantly limit the claimant's ability to perform "basic work activities." See 20 C.F.R. § 404.1520(a), (c) ; id. § 416.920(a), (c) ; see also 20 C.F.R. §§ 404.1522, 416.922. To meet the durational requirement, the severe impairment "must have lasted or must be expected to last for a continuous period of at least 12 months." See 20 C.F.R. §§ 404.1509, 416.909.
"Basic work activities" include, among others, the ability to walk, stand, sit, lift, use judgment, respond appropriately to usual work situations, deal with changes in a routine work setting, and understand simple instructions. 20 C.F.R. §§ 404.1522, 416.922.
The claimant has the burden of establishing a severe impairment, at step two, but it "is not an exacting one." McCrea v. Comm'r of Soc. Sec. , 370 F.3d 357, 360 (3d Cir. 2004). The claimant must only "demonstrate something beyond a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Id. (internal quotation marks omitted) (quoting SSR 85–28, 1985 WL 56856, at *3 (Jan. 1, 1985) ). If there is any doubt as to whether this standard has been met, the ALJ should resolve the issue in favor of the claimant. Id. (citing to Newell v. Comm'r of Soc. Sec. , 347 F.3d 541, 546–47 (3d Cir. 2003) ). In other words, the step two severity standard "is a de minimis screening device to dispose of groundless claims." Id. (quoting Newell , 347 F.3d at 546 ).
Here, after identifying eight other severe impairments at step two, the ALJ addressed Ms. Edinger's carpal tunnel syndrome. Finding it to not be severe, the ALJ explained:
The claimant has the non-severe impairment of carpal tunnel syndrome. Said impairment has not significantly limited the claimant's ability to perform basic work activities as required by SSRs 85-28 and 96-3p for the required one year duration since the alleged onset date. Chang Ahn, M.D., an examining rehabilitation medicine physician, diagnosed the claimant as having bilateral carpal tunnel syndrome by EMG/NCS in March 2017. However, Dr. Ahn stated that the claimant has no neuropathy or radiculopathy. Dr. Ahn also stated that the claimant used to work cleaning cars. On examination, Dr. Ahn observed that the claimant has normal reflexes and muscle tone. Dr. Ahn further observed that the claimant has no atrophy with 4/5 strength in the upper extremities. There is no evidence that the claimant's carpal tunnel syndrome will not improve with treatment.
R. 17 (citations omitted).
The ALJ's analysis, here, is supported by substantial record evidence. "As at other steps, at step two an ALJ's decision is supported by substantial evidence when the ALJ has considered all of the evidence before her and explained why she rejected any relevant evidence that was in conflict with her ultimate decision." McClease v. Comm'r of Soc. Sec. , No. 08-1673, 2009 WL 3497775, at *8 (E.D. Pa. Oct. 28, 2009) (citing to Cotter v. Harris , 642 F.2d 700, 704, 707 (3d Cir. 1981), and Newell , 347 F.3d at 547–48 ); see also Kent v. Schweiker , 710 F.2d 110, 114 (3d Cir. 1983) ("A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence."). Evidence is not substantial "if it is overwhelmed by other evidence." Kent , 710 F.2d at 114. After reviewing the record, I find that the ALJ's considered all of the relevant evidence and adequately explained her decision.
Ms. Edinger disagrees, claiming that the ALJ's step-two analysis "failed to take into consideration [the] medical records documenting her ‘severe bilateral carpal tunnel syndrome." Pl. Br. at 4–5. She specifically points to the EMG test completed by Dr. Ahn, sensory examinations performed by Dr. Ahn, and Ms. Edinger's own testimony. Id. She also suggests that the ALJ should have given more weight to Dr. Ahn's findings because she was a treating physician. Id. at 6–7 (discussing treating source rule). These arguments are unavailing.
"Electrodiagnostic testing, made up of nerve conduction and electromyography (EMG) testing, is used to confirm the diagnosis of carpal tunnel syndrome and other nerve disorders." Aaron Daluiski, Carpal Tunnel Syndrome : Myths, Facts, Diagnosis, and Treatment , Hosp. for Special Surgery , https://www.hss.edu/conditions_carpal-tunnel-syndrome-myths-facts-diagnosis-treatment.asp#4 (last updated June 22, 2009).
First, contrary to Ms. Edinger's assertion, the ALJ did consider the medical records referencing her carpal tunnel syndrome. See R. 17. Notably, the ALJ acknowledged that Dr. Ahn conducted an EMG study that provided the basis for the diagnosis of carpal tunnel syndrome. But the ALJ concluded that Ms. Edinger has not met her burden of establishing that her carpal tunnel had significantly impaired her ability to work for the durational requirement. Substantial evidence supports this determination. The ALJ correctly identified that Ms. Edinger was not diagnosed with carpal tunnel syndrome until March 2017, less than two months before the ALJ's decision. See R. 17 (ALJ's opinion dated April 26, 2017); R. 710–14 (Dr. Ahn's records dated March 2, 2017). Nor was there any evidence that Ms. Edinger's carpal tunnel was expected to last a year. As the ALJ recognized, the record is devoid of any indication that Ms. Edinger's carpal tunnel will not improve with treatment. See R. 17. In addition, Dr. Ahn's records revealed no neuropathy or radiculopathy, normal reflexes and muscle tone, and no atrophy with 4/5 strength in upper extremities. See id. (citing to R. 710–11). The ALJ therefore properly considered the relevant medical records, and her step-two determination was supported by substantial record evidence. See Byrd v. Berryhill , No. 17-2993, 2018 WL 2009535, at *2 (E.D. Pa. April 27, 2018) ("To meet [the step-two] threshold determination, [the claimant] had to satisfy the ‘duration requirement’ by showing that he suffered a severe impairment that lasted twelve consecutive months since [the alleged onset date].") (citing to 20 C.F.R. § 416.909 ; Zaccaria v. Comm'r of Soc. Sec. , 267 F. App'x 159, 161 (3d Cir. 2008) (not precedential)).
The earliest recorded complaint of her carpal tunnel symptoms was on September 29, 2016, far short of the one-year durational requirement. R. 642–44. At her appointment, Ms. Edinger had full strength in both of her hands, but had mild discomfort in her wrists, admitted to getting numbness in her fingers, and exhibited a positive Tinel's test. Id. ; see also Tinel's Sign , healthline , https://www.healthline.com/health/tinels-sign (last visited Dec. 10, 2019) (explaining that the Tinel's test is commonly used to diagnose carpal tunnel syndrome, but that doctors often use additional testing to confirm the diagnosis). Assuming that these findings demonstrated "more than a slight abnormality," this treatment note still cannot satisfy the threshold durational requirement: it was dated less than a year before the ALJ's opinion and her date last insured.
Nor does the fact that Dr. Ahn documented that Ms. Edinger had a "more than one year history of increasing constant painful numbness and tingling sensation of both hands followed by weakness of both hand grips, more on the right than left side for one year ," see R. 710 (emphasis added), undermine the ALJ's step-two conclusion regarding the durational requirement. This notation was included as part of Ms. Edinger's medical history, during her first consultation with Dr. Ahn. It therefore is not based on Dr. Ahn's longitudinal knowledge, or observations, from treating Ms. Edinger but rather likely based on Ms. Edinger's own statements, relating the history of her symptoms to her new medical provider. Neither the parties nor the ALJ discuss this statement and its impact on the durational requirement analysis. This is understandable. The fleeting reference to the "one-year history" does not indicate when her symptoms began to significantly limit her abilities to do basic work activities. Instead, it merely suggests that in an effort to provide a complete picture to her new doctor, Ms. Edinger estimated that over the past year, her symptoms have increased. Accordingly, I find that the ALJ did not err.
Ms. Edinger's suggestion that the ALJ ignored her testimony is similarly unpersuasive. Ms. Edinger claims that the ALJ erred in failing to consider her testimony that she is unable "to hold or carry items as simple as a dinner plate without dropping it, zippering, picking things up, and writing," and that "her wrists lock up, her hands go numb and tingle, and that she has pain in them." Pl. Br. at 5 (citing to R. 63–64). While Ms. Edinger is correct that the ALJ did not, at step two, summarize the details of her testimony, this omission was harmless. Nowhere in the hearing transcript did Ms. Edinger claim that her severe symptoms had lasted, or were expected to last, for more than a year. See R. 62–64 (discussion of hand problems). Accordingly, Ms. Edinger's testimony does not contradict the ALJ's conclusion that she failed to establish the threshold durational requirement for a severe impairment with respect to her carpal tunnel syndrome. See Bordeaux v. Barnhart , 43 F. App'x 481, 482 (3d Cir. 2002) (not precedential) (agreeing that a limitation was not severe, at step two, because "it did not satisfy the durational requirement of the Act").
The Administrative Record contains additional medical evidence that was submitted to the Appeals Council, after the ALJ issued her decision. See R. 31–47 (medical records from sent by counsel on August 23, 2017). These records include, among others, notes from Ms. Edinger's orthopedist, documenting her carpal tunnel release surgeries and recovery. Id. District courts may only consider the evidence available to the ALJs when reviewing decisions, and therefore I did not consider these additional records when deciding whether there was substantial evidence to support the ALJ's opinion. See Chandler , 667 F.3d at 360 ("[A]lthough evidence considered by the Appeals Council is part of the administrative record on appeal, it cannot be considered by the District Court in making its substantial evidence review....") (quoting Matthews v. Apfel , 239 F.3d 589, 593 (3d Cir. 2001) (alteration in original)); see also Pennington v. Comm'r , 683 F. App'x 168, 170 (3d Cir. 2017) (not precedential).
Second, Ms. Edinger's contention that the ALJ erred by not giving "sufficient weight" to the EMG test results is not convincing. Ms. Edinger invokes Dr. Ahn's status as a "treating physician," claiming that the ALJ should have accorded more weight to Dr. Ahn's findings and conclusions that "clearly would support a finding that [her] carpal tunnel syndrome is severe." Pl. Br. at 6–7. In essence, Ms. Edinger is arguing that because her treating physician diagnosed her with carpal tunnel syndrome, the ALJ was required to conclude that it was a severe impairment, at step two. This is incorrect. As the Commissioner recognizes in his brief, see Def. Br. at 3–4, "diagnoses alone are insufficient" to establish an impairment's severity. Salles v. Comm'r of Soc. Sec. , 229 F. App'x 140, 145 (3d Cir. 2007). A claimant must also present evidence that the impairment "significantly limited her ability to do basic work activities," see id. (emphasis in original), and that it lasted (or was expected to last) for at least a year, see 20 C.F.R. §§ 404.1509, 416.909.
Specifically, Ms. Edinger cites to both the "sensory examinations [that] were markedly decreased in pinprick sensation in both index fingers, more on the left than the right side," and the EMG and nerve conduction studies that revealed (1) "distal motor latency was markedly delayed in both median nerves, more on the right than the left side with smaller amplitude"; (2) "terminal sensory latency was also markedly delayed with small amplitude in both median nerve, more on the left than the right side"; and (3) "severe bilateral carpal tunnel syndrome much more on the right than the left side." Pl. Br. at 6–7 (citing to R. 710–11) (emphasis in original).
More importantly, the ALJ did not dispute Dr. Ahn's findings. In particular, the ALJ relied on Dr. Ahn's diagnosis of carpal tunnel, pointing to the EMG study. See R. 17. But the ALJ correctly notes that Ms. Edinger's carpal tunnel has not significantly limited her for the requisite duration, under the regulations, and therefore is not severe at step two. See id. The ALJ appears to have accepted Dr. Ahn's findings, relying on many of Dr. Ahn's observations to support her conclusion that Ms. Edinger's carpal tunnel was not a severe impairment. See id.
However, Ms. Edinger suggests that the ALJ improperly "cherry-picked" from Dr. Ahn's findings, only referencing the evidence supporting her conclusion while overlooking any contrary evidence. See Pl. Br. at 7. It is well-established that an ALJ may not " ‘cherry-pick’ results that support his conclusion and ignore those that do not." See Smith v. Berryhill , No. 17-2661, 2018 WL 7048069, at *9 (E.D. Pa. Nov. 27, 2018). According to Ms. Edinger, the beneficial evidence that the ALJ ignored included Dr. Ahn's conclusion that Ms. Edinger had "severe bilateral carpal tunnel" and her observations from the sensory examinations, the EMG study, and the nerve conduction test. Pl. Br. at 7 (emphasis in original).
Ms. Edinger's conclusory allegation is unpersuasive. The fact that Dr. Ahn used the word "severe" in its colloquial sense in the opinion does not establish that Ms. Edinger's condition met the durational requirement required before a condition can be found "severe" under the regulations. Looking at the ALJ's opinion, she explicitly acknowledged the records from Ms. Edinger's consultation with Dr. Ahn, accepting the diagnosis of carpal tunnel syndrome. See R. 17. This diagnosis was based on Dr. Ahn's observations from the EMG study and nerve conduction test. See R. 710–11. Once an ALJ "articulates at some minimum level her analysis of a particular line of evidence," then she is not required to provide "[a] written evaluation of every piece of evidence." Phillips v. Barnhart , 91 F. App'x 775, 780 n.7 (3d Cir. 2004). I find that she sufficiently described her analysis of these records and did not ignore contradictory evidence.
Finally, Ms. Edinger's reliance on Dr. Ahn's status as a "treating physician" is misplaced. See Pl. Br. at 6–7. In the social security context, the designation as a treating source is important: a treating source's opinion, in certain circumstances, is entitled to controlling, or great, weight. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). A treating source is an acceptable medical source who provides a claimant with "medical treatment or evaluation," and has an "ongoing treatment relationship" with the patient. Id. §§ 404.1527(a)(2), 416.927(a)(2). An ongoing treatment relationship is generally established when the claimant has seen the accepted medical source "with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required" for the claimant's condition. Id.
"Medical opinions are statements from 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." 20 C.F.R. §§ 404.1527, 416.927.
Medical opinion evidence is relevant evidence that the ALJ must evaluate and weigh. 20 C.F.R. §§ 404.1527(c), 416.927(c). A treating source's opinion is entitled to controlling weight when supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence. See id. §§ 404.1527(c)(2), 416.927(c)(2). A treating source's opinion may be rejected "on the basis of contradictory medical evidence." Plummer , 186 F.3d at 429 ; see also Brown v. Astrue , 649 F.3d 193, 197 (3d Cir. 2011) (ALJ "clearly explained" why she gave greater weight to the opinion of a medical consultant than to a treating physician). So too may an opinion be rejected if there is insufficient clinical data, see Newhouse v. Heckler , 753 F.2d 283, 286 (3d Cir. 1985), or if the opinion is contradicted by the physician's own treating notes or the patient's activities of daily living, see Smith v. Astrue , 359 F. App'x 313, 316–17 (3d Cir. 2009) (not precedential). The opinion may be accorded "more or less weight depending upon the extent to which supporting explanations are provided." Plummer , 186 F.3d at 429 (citing to Newhouse , 753 F.2d at 286 ). In choosing to reject the treating physician's assessment, an ALJ may not make "speculative inferences from medical reports" and may not reject a treating physician's opinion "due to his or her own credibility judgments, speculation, or lay opinion." Morales v. Apfel , 225 F.3d 310, 317 (3d Cir. 2000).
Where a treating source's opinion is not given controlling weight, the ALJ must determine the weight to give the relevant medical sources by considering factors such as the length of the treatment relationship and frequency of visits, the nature and extent of the treatment relationship, whether the medical source supports the opinion with medical evidence, whether the opinion is consistent with the medical record, and the medical source's specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c).
The rules regarding the evaluation of opinion evidence have changed, effective March 27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c. For claims filed before March 27, 2017, but not decided until after that date, such as Ms. Edinger's, the rules listed in 20 C.F.R. §§ 404.1527(c), 416.927(c) apply.
Acceptable medical sources include qualified speech-language pathologists and licensed physicians, psychologists, optometrists, podiatrists, audiologists, advanced practice registered nurses, and physician assistants. 20 C.F.R. §§ 404.1502(a), 416.902(a).
Here, the ALJ categorized Dr. Ahn as an examining—not treating—source. See R. 17 ("Chang Ahn, M.D., an examining rehabilitation medicine physician, diagnosed the claimant...." (emphasis added)). At the time of the decision, Ms. Edinger had seen Dr. Ahn on only one occasion. This is not the type of "ongoing treatment relationship" expected for a treating rehabilitation medicine physician. Therefore, the ALJ's decision to designate Dr. Ahn as an examining medical source was proper.
Despite not finding Dr. Ahn to be a treating physician, the ALJ did accept the doctor's diagnosis of carpal tunnel syndrome and other findings. See R. 17. However, for the other reasons discussed above, the ALJ found that Ms. Edinger did not satisfy her burden at step two. See id.
This also aligns with the rationale for giving treating sources more weight than other sources. Recognizing that a treating source is "likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)," the regulations explain that more weight may be given to the opinions of these sources because they may provide "a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations , such as consultative examinations or brief hospitalizations." See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (emphasis added). This is not the case with Dr. Ahn's one-time examination of Ms. Edinger.
For all of these reasons, I find that the ALJ did not err and that there is substantial evidence to support the ALJ's determination.
Nevertheless, even if the ALJ did err, any error was harmless. Failing to find an impairment to be severe may be harmless when the ALJ does not deny benefits at that step and properly considers the condition in the remaining analysis. See Rutherford v. Barnhart , 399 F.3d 546, 552–53 (3d Cir. 2005) (not determining the severity of a condition at step two was harmless because the ALJ properly considered it in the evaluation of the claimant's limitations). For Ms. Edinger, the sequential analysis proceeded past step two, as the ALJ found that she suffered from eight other severe impairments. Then, at step four, when assessing Ms. Edinger's RFC, the ALJ considered her carpal tunnel syndrome. The ALJ explained:
The claimant's carpal tunnel syndrome was just diagnosed via EMG in March 2017. The claimant did have complaints of numbness and pain before that, but even with a limitation for frequent handling and fingering, the vocational expert said that the claimant could do the jobs given in Paragraph 10 below.
R. 22. Because the ALJ properly considered Ms. Edinger's carpal tunnel in the remainder of the analysis, even if the ALJ erred at step two, any error was harmless.
C. The ALJ properly considered the vocational expert's testimony.
Ms. Edinger's final two claims involve the vocational expert's testimony. Ms. Edinger alleges that the ALJ erred by presenting the vocational expert with a hypothetical question assuming Ms. Edinger was able to perform the full range of sedentary work, despite later finding that she had additional limitations. Pl. Br. at 7–8. Ms. Edinger also challenges the ALJ's reliance on the vocational expert's response to the hypothetical question that did not accommodate her "having four additional breaks in a day, having to elevate her feet above her heart for four hours a day, using only one hand because of the need to use a cane to stand, and excessive absenteeism." Id. at 9–10. Neither of these claims warrant remand.
Contrary to Ms. Edinger's recitation of the facts, the ALJ's hypothetical to the vocational expert did encompass the additional, recognized limitations restricting her to a reduced—not full—range of sedentary work. R. 77–78; see also Def. Br. at 6–8. Looking at the hearing transcript, the colloquy between the ALJ and the vocational expert completely belies Ms. Edinger's contention that the ALJ's hypothetical assumed that she could perform a full range of sedentary work. Accordingly, I find this claim to be meritless.
At the administrative hearing, the ALJ and the vocational expert had the following exchange:
Q: All right. Moving on to the hypotheticals. Assume an individual of the same age, education, and work experience as the claimant and with the following residual functional capacity: This person can perform sedentary-level work. They can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. They can occasionally balance, stoop, kneel, crouch, or crawl. They must avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, vibration, and fumes, odors, dust, gases, and poor ventilation. They must avoid all exposure to hazards such as heights and moving machinery on the ground, such as forklifts. They can understand, remember, and carry out simple instructions. First of all, could they do past work?
A: No, Your Honor.
Q: Would there be other jobs existing in the national economy that such an individual could perform?
A: Yes.
R. 77. The residual functional capacity described above exactly matches the residual functional capacity that the ALJ ultimately assigned to Ms. Edinger. See R. 19.
In addition, the ALJ properly relied on the less-restrictive hypothetical that did not include the other limitations raised by Ms. Edinger—taking breaks, elevating her feet, using one hand, and being absent. For a vocational expert's testimony to be considered "substantial evidence," the ALJ's hypothetical question "must reflect all of a claimant's impairments that are supported by the record. " Chrupcala v. Heckler , 829 F.2d 1269, 1276 (3d Cir. 1987) (emphasis added). In other words, the ALJ "must accurately convey to the vocational expert all of a claimant's credibly established limitations ," not every limitation alleged by the claimant. Rutherford , 399 F.3d at 554.
Here, the ALJ determined that the evidence supported limiting Ms. Edinger to sedentary work with significant additional limitations. See R. 19. While the vocational expert was asked about other possible restrictions (such as taking four more breaks per day, being absent three or more days a month, or only occasionally handling and feeling), see R. 78–81, the ALJ ultimately found that these were not credibly established and did not include them in her RFC determination, see R. 19. The ALJ then relied on the less-restrictive hypothetical that reflected her RFC determination to determine that there were a significant number of jobs in the national economy that Ms. Edinger could perform. R. 24–25. This was not in error, as the hypothetical relied upon reflected all of Ms. Edinger's credibly established limitations. Accordingly, the ALJ's decision was supported by substantial evidence.
In fact, as the Commissioner points out, Ms. Edinger does not even specifically argue that these restrictions "should have been incorporated into the RFC," see Def. Br. at 8 n.4, just that the ALJ should have relied on the vocational expert's testimony assessing a person's ability to work who has these limitations.
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RECOMMENDATION
Based upon the discussion above, I respectfully recommend that Plaintiff Rhonda Lynn Edinger's Request for Review be DENIED . I find that the ALJ's decision was ultimately supported by substantial evidence. Accordingly, I recommend that the final decision of the Commissioner of Social Security be affirmed and this matter be dismissed.
The parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with this document. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and shall provide an explanation of the basis for the objection. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams , 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within fourteen (14) days of the date the objections were served.