Opinion
Civil Action 3:21-CV-01163
05-13-2022
JAMES ASCH, JR., Plaintiff, v. KILOLO KIJAKAZI,[1]Defendant.
MEHALCHICK, M.J.
REPORT AND RECOMMENDATION
BRANN, J.
Plaintiff James Asch, Jr. (“Asch”) brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. (Doc. 1). For the following reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be AFFIRMED.
I. Background and Procedural History
On June 4, 2019, Asch filed an application under Title II for a period of disability and disability insurance benefits, alleging disability beginning April 26, 2017. (Doc. 12-5, at 14). The Social Security Administration initially denied the application on October 29, 2019, and upon reconsideration on May 12, 2020, prompting Asch's request for a hearing, which Administrative Law Judge (“ALJ”) Michelle Wolfe held on September 10, 2020. (Doc. 12-2, at 32). In a written decision dated October 8, 2020, the ALJ determined that Asch is not disabled and therefore not entitled to benefits or income under Title II. (Doc. 12-2, at 13). The Appeals Council subsequently denied Asch's request for review on May 3, 2021. (Doc. 12-2, at 2).
On June 30, 2021, Asch commenced the instant action. (Doc. 1). The Commissioner responded on September 15, 2021, providing the requisite transcripts from Asch's disability proceedings. (Doc. 11; Doc. 12). The parties then filed their respective briefs, with Asch raising one principal for reversal or remand. (Doc. 13; Doc. 14; Doc. 15). This matter is ripe for disposition.
II. Standards of Review
To receive benefits under Title II of the Social Security Act, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509. To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive Title II benefits, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(a); 20 C.F.R. § 404.131.
A “physical or mental impairment” is defined as an impairment resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
A. Administrative Review
In evaluating whether a claimant is disabled, the “Social Security Administration, working through ALJs, decides whether a claimant is disabled by following a now-familiar five-step analysis.” Hess v. Comm'r of Soc. Sec., 931 F.3d 198, 200-01 (3d Cir. 2019). The “burden of proof is on the claimant at all steps except step five, where the burden is on the Commissioner of Social Security.” Hess, 931 F.3d at 201; see 20 C.F.R. § 404.1512(a)(1). Thus, if the claimant establishes an inability to do past relevant work at step four, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. § 404.1512(a)(1).
B. Judicial Review
The Court's review of a determination denying an application for Title ii benefits is limited “to considering whether the factual findings are supported by substantial evidence.” Katz v. Comm'r of Soc. Sec., No. 19-1268, 2019 WL 6998150, at *1 (3d Cir. Dec. 20, 2019). 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) (internal quotation marks omitted). The quantum of proof is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict created by such evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
The question before the Court, therefore, is not whether Asch is disabled, but whether the Commissioner's determination that Asch is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). If “the ALJ's findings of fact . . . are supported by substantial evidence in the record,” the Court is bound by those findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
III. The ALJ's Decision
In her written decision, the ALJ determined that Asch “has not been under a disability, as defined within the Social Security Act from April 26, 2017, through the date last insured.” (Doc. 12-2, at 17). The ALJ reached this conclusion after proceeding through the five-step sequential analysis provided in 20 C.F.R. § 404.1520(a)(4). The ALJ found that Asch met the insured status requirements of the Social Security Act on December 17, 2017. (Doc. 12-2, at 18).
A. Step One
At step one of the five-step analysis, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in substantial gainful activity, the claimant is not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is defined as work activity requiring significant physical or mental activity and resulting in pay or profit. 20 C.F.R. § 404.1572. The ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574(a)(2). Here, the ALJ determined that Asch “did not engage in substantial gainful activity during the period from his alleged onset date of April 26, 2017 though his date last insured of December 31, 2017,” and therefore proceeded to step two of the analysis. (Doc. 12-2, at 18).
B. Step Two
At step two, the ALJ must determine whether the claimant has a medically determinable impairment-or a combination of impairments-that is severe and meets the 12-month duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an impairment or combination of impairments that significantly limits the claimant's “physical or mental ability to do basic work activities,” the ALJ will find that the claimant does not have a severe impairment and is therefore not disabled. 20 C.F.R. § 404.1520(c). If, however, a claimant establishes a severe impairment or combination of impairments, the ALJ proceeds to step three. Here, the ALJ found that Asch has the following severe impairments: post-laminectomy syndrome, obesity, and cervical degenerative disc disease. (Doc. 12-2, at 18). The ALJ also determined that Asch has the following non-severe impairment: hypertension, otitis media, bilateral shoulder bursitis, left hip trochanteric bursitis, decreased vision of the right eye, and sleep apnea. (Doc. 12-2, at 19).
C. Step Three
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in the version of 20 C.F.R. § Pt. 404, Subpt. P, App. 1 that was in effect on the date of the ALJ's decision. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 404.1526. The sections in this appendix are commonly referred to as “listings.” If the ALJ determines the claimant's impairment or impairments meet a listing, then the claimant is considered disabled. 20 C.F.R. § 404.1520(d). Otherwise, the ALJ must proceed to the fourth step of the analysis. 20 C.F.R. § 404.1520(d). The ALJ considered the 1.04 (disorders of the spine) listing. (Doc. 12-2, at 19). Here, the ALJ determined that none of Asch's impairments, considered individually or in combination, meet or medically equal the severity of a listed impairment. (Doc. 12-2, at 19-20).
D. Residual Functional Capacity
Between steps three and four, the ALJ evaluates the claimant's residual functional capacity (“RFC”), crafted upon consideration of all the evidence presented. At this intermediate step, the ALJ examines all of the claimant's symptoms and “the extent to which [they] can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). This involves a two-step inquiry in which the ALJ must (1) determine whether an underlying medically determinable mental impairment or impairments could reasonably be expected to produce the claimant's symptoms; and, if so, (2) evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. See 20 C.F.R. § 404.1529(b)-(c). Here, the ALJ found that while Asch's medically determinable impairments could reasonably be expected to cause his alleged symptoms, Asch's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Doc. 12-2, at 20).
Considering all the evidence in the record, the ALJ determined that Asch had the RFC “to perform sedentary work as defined in 20 C.F.R. 404.1567(a),” subject to the following non-exertional limitations:
[O]ccasionally balance, stoop, crouch, crawl, kneel, and climb, but never climb on ladders ropes or scaffolds. He could not push or pull with the lower extremities. He was limited to frequent exposure to temperature extremes of cold and heat and to vibrations. He was limited to occasional exposure to hazards including moving machinery and unprotected heights. He used a case for ambulation. He was to be allowed a sit/stand option with each interval of standing being a maximum of half an hour, each interval of sitting for one hour. [Asch] would not have been off task when transferring positions.
(Doc. 12-2, at 20).
E. Step Four
Step four requires the ALJ to determine whether the claimant had, during the relevant period, the RFC to perform the requirements of his or her past relevant work regardless of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is work that the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn the requirements of the work. 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ considers whether the claimant retains the capacity to perform the particular functional demands and job duties of the past relevant work, either as the claimant actually performed the work or as ordinarily required by employers throughout the national economy. Garibay v. Comm'r of Soc. Sec., 336 Fed.Appx. 152, 158 (3d Cir. 2009) (quoting SSR 82-6). “If the claimant can perform his [or her] past relevant work despite his limitations, he [or she] is not disabled.” Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)). Here, the ALJ determined that through the date last insured, Asch “was capable of performing past relevant work as an appointment clerk and receptionist” as the work did not require the performance of work-related activities precluded by Asch's RFC. (Doc. 12-2, at 24).
F. Step Five
At step five of the sequential analysis, the ALJ considers the claimant's age, education, and work experience to determine whether the claimant can make the adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If a claimant can adjust to other work, he or she will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v). Here, considering Asch's age, education, work experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Asch can perform. (Doc. 12-2, at 24). In making this determination, the ALJ relied on the expertise of the vocational expert, who testified that Asch could perform the requirements of occupations such as an appointment clerk and receptionist. (Doc. 12-2. at 24). Accordingly, the ALJ determined that Asch was not disabled during the relevant period and denied his application for benefits. (Doc. 12-2, at 25).
IV. Discussion
On appeal, Asch avers that substantial evidence does not support the ALJ's RFC determination. (Doc. 13, at 1). Specifically, Asch submits that there is no support for ALJ's physical RFC assessment as “the record is devoid of any RFC assessments from any physicians (treating or examining) whatsoever,” and that the ALJ failed to develop the record. (Doc. 13, at 5). In addition, Asch argues that the ALJ's multiple errors with symptom evaluation compel reversal. (Doc. 13, at 5-6). In response, the Commissioner contends that Asch “failed to meet his burden of demonstrating that he was incapable of performing his past relevant work before his insured status expired.” (Doc. 14, at 16).
As a preliminary matter, to receive benefits under Title II of the Social Security Act, “a claimant must show that he was insured under the program at the time of onset of his disability.” Kane v. Heckler, 776 F.2d 1130, 1131 n.1 (3d Cir. 1985) (citation omitted); see also 20 C.F.R. §§ 404.10, 404.315. Further, a claimant must demonstrate the existence of an impairment that “precluded h[im] from performing substantial gainful activity for a continuous period of twelve months prior to the expiration of h[is] insured status.” SeeKelleyv. Barnhart, 138 Fed.Appx. 505, 507 (3d Cir. 2005). For the purposes of the benefits he seeks under Title II, it is undisputed that Asch's insured status expired on December 31, 2017. (Doc. 13, at 1; Doc. 14, at 6 n.4). As such, the relevant disability period, in this case, is April 26, 2017, the date of Asch's alleged disability onset, through December 31, 2017, the date of his insured status expiration (the “Relevant Period”). (Doc. 12-2, at 18).
As this matter involves a claim filed after March 27, 2017, the new regulatory framework governing the evaluation of medical opinions applies to the ALJ's evaluation of the medical opinions in the record. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed.Reg. 15,132-01 (Mar. 27, 2017)); see also 82 Fed.Reg. 15263 (March 27, 2017); 82 Fed.Reg. 16869 (corrective notice) (explaining that SSR 96-2p and 96- 5p do not apply to newly filed or pending claims after March 27, 2017). Under the new regulations, rather than assigning weight to medical opinions, the Commissioner will articulate “how persuasive” he or she finds the medical opinions. 20 C.F.R. § 404.1520c(b). The Commissioner's consideration of medical opinions is guided by the following factors: supportability; consistency; relationship with the claimant (including the length of the treatment relationship, the frequency of examinations, the purpose of the treatment relationship, the extent of the treatment relationship, and the examining relationship); specialization of the medical source; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c). The most important of these factors is the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2).
The ALJ must explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ may, but is not required to, explain his or her consideration of the other factors, but if there are two equally persuasive medical opinions about the same issue that are not exactly the same, then the ALJ must explain how he or she considered the other factors. 20 C.F.R. § 404.1520c(b)(3). To facilitate judicial review, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests” and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Cotter v. Harris, 642 F.2d 700, 704, 706-707 (3d Cir. 1981). An ALJ need not undertake an exhaustive discussion of all the evidence or “use particular language or adhere to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004); see Hur v. Barnhart, 94 Fed.Appx. 130, 133 (3d Cir. 2004) (“There is no requirement that the ALJ discuss in his opinion every tidbit of evidence included in the record.”). However, an ALJ must ensure “sufficient development of the record and explanation of findings to permit meaningful review.” Jones, 364 F.3d at 505; see, e.g.,Rivera v. Comm'r of Soc. Sec., 164 Fed.Appx. 260, 262 (3d Cir. 2006) (“The only requirement is that, reading the ALJ's decision as a whole, there must be sufficient development of the record and explanation of findings.”).
The Third Circuit has ruled that the ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determination. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). “[RFC]” is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d at 121 (quoting Hartranft v. Apfel, 181 F.3d 358, 359 (3d Cir. 1999)). Specifically, one's RFC reflects the most that an individual can still do, despite his or her limitations, and is used at steps four and five to evaluate the claimant's case. 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8p. When determining an individual's RFC, the ALJ must consider all the evidence of the record including medical signs and laboratory findings, medical source statements, and a claimant's medical history. SSR 96-8p; see Mullin v. Apfel, 79 F.Supp.2d 544, 548 (E.D. Pa. 2000). A claimant's statements alone are not enough to establish a physical or mental impairment. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1528(a). “[O]nce the ALJ has made this [RFC] determination, [a court's] review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence.” Black v. Berryhill, No. 16-1768, 2018 WL 4189661, at *3 (M.D. Pa. Apr. 13, 2018).
The ALJ properly applied the new set of Social Security Regulations for evaluating medical evidence that eliminates the hierarchy of medical opinions and states that an ALJ will not defer to any medical opinions, even those from treating sources. (Doc. 12-2, at 2024); see 20 C.F.R. § 404.1520c(a). In determining whether the claimant is disabled, the ALJ must “consider all [of the claimant's] symptoms, including pain, and the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a); see Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992) (plaintiff's “subjective complaints must be substantiated by medical evidence.”). Additionally, the ALJ should consider the claimant's daily activities; location, duration, frequency and intensity of pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of medications; treatment other than medication; and other measures the claimant uses to address the pain or other symptoms. 20 C.F.R. § 404.1529(c)(3). Subjective complaints, then, must be given due consideration, but will be evaluated in the context of objective evidence. See 20 C.F.R. § 404.1529(a); see alsoChandler, 667 F.3d at 363 (“statements about your pain or other symptoms will not alone establish that you are disabled.”). “To establish disability, there must be objective medical evidence from an acceptable medical source showing that the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged and that leads to the conclusion that the claimant is disabled when considered with the other evidence of record.” Stancavage v. Saul, 469 F.Supp.3d 311, 337 (M.D. Pa. 2020). A claimant's allegations alone will not establish that he is disabled. 20 C.F.R. § 404.1529.
A. The ALJ was not required to further develop the record.
Asch argues that “[t]he ALJ relied on lay medical conjecture to limit [Asch] to sedentary work instead of a less than sedentary RFC.” (Doc. 15, at 2). Further, Asch asserts that the ALJ should have sent Ash to a consultative examiner for an opinion as to Ash's RFC. (Doc. 15, at 2). The Commissioner responded that Asch's argument is without basis because his “insured status expired more than 18 months before he filed his application for benefits, so there was simply no possibility for a consultative examination to be performed to evaluate [Asch]'s condition during the period at issue.” (Doc. 15, at 17).
The burden still “lies with the claimant to develop the record regarding his or her disability because the claimant is in a better position to provide information about his or her own medical condition.” Money v. Barnhart, 91 Fed.Appx. 210, 215 (3d Cir. 2004) (citing Bowenv. Yuckert, 482 U.S. 137, 146 n.5 (1987), and 20 C.F.R. §§ 404.1512(a), 416.912(a)). “While an ALJ is required to assist the claimant in developing a full record, he or she has no such obligation to ‘make a case' for every claimant.” Kenyon v. Colvin, No. 3:12-CV-1812, 2013 WL 6628057, at *5 (M.D. Pa. Dec. 16, 2013). “The decision to order a consultative examination is within the sound discretion of the ALJ.” Thompson v. Halter, 45 Fed.Appx. 146, 149 (3d Cir. 2002). Under the regulations, the Commissioner “may” request a claimant to attend a consultative examination. 20 C.F.R. § 404.1512. The regulations authorize the ALJ to obtain a consultative examination if there remains information needed to make a disability determination, “such as clinical findings, laboratory tests, a diagnosis or a prognosis” which cannot be obtained from the medical record. 20 C.F.R. § 404.1519a. Such an examination may be requested when the Commissioner is not presented with the information that is necessary to make a decision or is presented with inconsistent information. 20 C.F.R. § 404.1519a(a)-(b). If the inconsistency or lack of information does not allow the Commissioner to make a decision, the Commissioner may take follow-up steps to develop the record, including by re-contacting a medical source. 20 C.F.R. § 404.1519a(b)(2)(i); see also Swink v.Saul, 931 F.3d 765, 770-771 (8th Cir. 2019); 20 C.F.R. § 404.1519a.
In Herring v. Colvin, the plaintiff “points to the types of things that the ALJ did not do” as grounds for reversible error and the Court rejected this argument explaining:
Plaintiff is conflating the two requirements for a remand based on failure to develop the record. An ALJ must have failed to develop the record, and prejudice must be shown[.] Plaintiff has failed to proffer or describe any additional evidence the ALJ should have considered and has failed to make any new argument based on existing evidence.
181 F.Supp.3d 258, 269 (M.D. Pa. 2014).
Here, in formulating the RFC assessment, the ALJ reviewed the medical evidence of record, including clinical examinations and the laboratory and clinical findings. (Doc. 12-2, at 21-23). Specifically, the ALJ considered the administrative medical findings of two Disability Determination Services state-agency consultants. (Doc. 12-2, at 23). First, David Ferner, D.O. (“Dr. Ferner”), evaluated Asch on October 25, 2019. (Doc. 12-3, at 6-7). Dr. Ferner opined that Asch's physical impairments of spine disorder, low vision, and respiratory disorder were severe, but found insufficient evidence to evaluate these conditions prior to the date last insured. (Doc. 12-3, at 7). The ALJ refused to evaluate Dr. Ferner's opinion because “[f]indings of insufficient evidence are not considered medical opinions per the regulations, and thus do not require an evaluation by the undersigned.” (Doc. 12-2, at 23).
Next, medical consultant Wadicar Nugent, M.D. (“Dr. Nugent”), evaluated Asch on May 11, 2020. (Doc. 12-3, at 18-22). Dr. Nugent opined that Asch was limited to light exertion with two hours of standing and/or walking, use of a cane for all ambulation, occasional postural limitations aside from no climbing of ladders, ropes, or scaffolds, limited right-sided vision, avoidance of concentrated exposure to extreme cold and vibration, and avoidance of even moderate exposure to workplace hazards. (Doc. 12-3, at 19-20). The ALJ found that Dr. Nugent's opinion was “persuasive overall.” (Doc. 12-2, at 23). Regarding the supportability of the opinion, the ALJ explained that Dr. Nugent's “conclusions are supported by a thorough review of the evidence with citations and explanations for [Asch]'s limitations up to the date of evaluation.” (Doc. 12-2, at 23). In addition, the ALJ found that Dr. Nugent's opinion was “consistent with the relevant evidence of record, showing that [Asch] began experiencing back and lower extremity symptoms around April 2017, with some clinical notations showing decreased range of motion and tenderness of the lumbar spine, . . . and with [Asch]'s cervical condition ” (Doc. 12-2, at 23). However, the ALJ found that to most fully account for this evidence, Asch must be limited to sedentary exertion. (Doc. 122, at 23). Further, the ALJ concluded that Asch's vision disorders did not warrant functional limitations as Asch often denied visual abnormalities to treating sources. (Doc. 12-2, at 23).
The ALJ's finding of disability was consistent with the medical evidence of record, which, along with Asch's medical examinations and his reported activity level, did not reflect the same severity of work-related limitations as those Asch alleged. Although the ALJ has a duty to assist a claimant in developing a full and fair record, he is not required to “search out relevant evidence which might be available, since that would in effect shift the burden of proof to the government.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). Rather, the ALJ's duty is to ensure that the evidence is sufficient to make a benefit determination and to resolve any material conflicts or ambiguities in the evidence. Furthermore, because Asch was represented by counsel at the administrative level, the ALJ is entitled to assume that the claimant is making the strongest case possible for benefits. Glenn v. Sec'y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).
Similar to the facts in Herring, Asch failed to identify any contradictions or omissions in the record pertaining to the relevant disability date which would require the ALJ to request additional medical opinions and failed to provide additional evidence or new arguments that would change the outcome of the case. See 181 F.Supp.3d at 269. “With testimonial evidence, medical opinions, and submitted medical history, the ALJ was presented with sufficient information to make a decision and acted properly within the scope of [her] discretion by not ordering consultative examinations or attempting to obtain interrogatories that Asch could also have obtained.” Dietrich v. Saul, 501 F.Supp.3d 283, 293 (M.D. Pa. 2020); see 20 C.F.R. §§ 404.1512, 404.1519a; Thompson, 45 Fed.Appx. at 149; see also Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007) (“The ALJ is not required to order such [consultative] examinations, but may do so if an applicant's medical evidence about a claimed impairment is insufficient.”); Herring v. Colvin, 181 F.Supp.3d 258, 269-72 (M.D. Pa. 2014).
The question is not whether Asch demonstrated some evidence that could support a finding of disability. See Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015). The question is whether the ALJ reasonably concluded that the record in totality failed to support Asch's claims. Kirk, 2015 WL 5915748, at *13. An ALJ is afforded substantial discretion in addressing contradictions and reviewing the totality of the record for consistency. See Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 n.9 (3d Cir. 2014) (“it is within the ALJ's discretion to weigh the evidence ...”); Dula v. Barnhart, 129 Fed.Appx. 715, 718 (3d Cir. 2005); Miller v. Comm'r of Soc. Sec., 172 F.3d 303, 305-06 (3d Cir. 1999). Accordingly, the undersigned finds that the ALJ did not err in failing to order consultative examinations because there was sufficient evidence of record to make an RFC assessment.
B. Substantial evidence supports the ALJ's analysis of Asch's Symptom Allegations and Activities of Daily Living
Next, Asch contends that the ALJ erred in using “boilerplate” language to evaluate Asch's symptoms and in assessing Asch's activities of daily living. (Doc. 13, 6-7). The commissioner avers that substantial evidence supports the ALJ's decision that Asch was not disabled before his insured status expired because “no physician of record stated or even implied that [Asch] was disabled prior to his date last insured,” and “no physician of record identified any restrictions whatsoever that would prevent [Asch] from performing the minimal demands of his past positions as an appointment clerk and receptionist.” (Doc. 14, at 17).
The Commissioner's regulations define “symptoms” as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502(1); SSR 96-4p. A symptom, however, is not a medically determinable impairment, and no symptom by itself can establish the existence of such an impairment. SSR 96-4p. The ALJ is not only permitted, but also required, to evaluate the credibility of a claimant's statements about all symptoms alleged and must decide whether and to what extent a claimant's description of his or her impairments may be deemed credible. See Winters v. Saul, No. 4:19-CV-1017, 2020 WL 5246710, at *22 (M.D. Pa. June 23, 2020). In many cases, this determination has a significant impact upon the outcome of a claimant's application, because the ALJ need only account for those symptoms - and the resulting limitations - that are credibly established when formulating his or her RFC assessment. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). To facilitate this difficult analysis, the Commissioner has devised a two-step process that must be undertaken by the ALJ to evaluate a claimant's statements about his or her symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b). If no medically determinable impairment could reasonably produce the symptom alleged, the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b); SSR 96-4p; SSR 16-3p.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions “can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). Instead, the ALJ will evaluate the extent to which any unsubstantiated symptoms can be credited based on the following factors: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
An ALJ's findings based on the credibility of a claimant are to be accorded great weight and deference, since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford, 399 F.3d at 554. Here, in making the RFC determination, the ALJ stated:
[Asch]'s allegations concerning the impairments and the impact on his ability to work are not sufficiently supported by the record as a whole in light of the objective medical findings, the medical history and degree of medical treatment required, and the claimant's description of his activities of daily living for the reasons explained in this decision.”(Doc. 12-2, at 21).
The ALJ reviewed Asch's medical examination records at the Orthopedic Institute of Pennsylvania and the Susquehanna Valley Pain Management, beginning in April 2017. (Doc. 12-2, at 21). The ALJ also considered the relevant evidence after the date last insured regarding Asch's post-laminectomy lumbar syndrome. (Doc. 12-2, at 22). As discussed supra, the ALJ found that the administrative findings of Dr. Nugent and Dr. Ferner were persuasive because they were supported by a review of the evidence and consistent with benign, objective examinations. (Doc. 12-2, at 23). In addition, the ALJ considered Asch's activities of daily living, which included feeding his cats and dogs, preparing simple meals, changing the trash bag, driving short distances, and shopping in stores once a week. (Doc. 12-2, at 22). Lastly, the ALJ posed a hypothetical question to the vocational expert that included all of the limitations supported and consistent with the record, and the vocational expert testified that Asch could perform two of his past work positions within such RFC restrictions. (Doc. 12-2, at 59-61).
In sum, the ALJ found that Asch's subjective symptoms allegations were not fully consistent with the medical evidence because his post-laminectomy syndrome was wellmanaged after the December 2017 surgery, Asch's use of a cane is accounted for in the RFC assessment, and Asch failed to seek substantial treatment for his cervical condition during the Relevant Period. (Doc. 12-2, at 22). Further, the ALJ noted that Asch “engaged in activities that are not limited to the extent one would expect, given his complaints of disabling symptoms and limitations.” (Doc. 12-2, at 22). Thus, the ALJ concluded that “the above [RFC] assessment is supported by [Asch]'s hearing testimony, functional reports, treatment records, and state agency assessments to the extent and for the reasons discussed above.” (Doc. 12-2, at 24).
As noted above, the Commissioner's regulations merely require that a claimant's symptoms be “reasonably” - as opposed to entirely - consistent with objective medical evidence to be credited. Asch criticizes the ALJ's use of popular boilerplate language: Asch's “statements concerning the intensity, persistence and limiting effects of these symptoms have been determined to diminish the capacity for basic work activities only to the extent to which they can reasonably be accepted as consistent with the objective medical and other evidence of record and the above residential functional capacity.” (Doc. 12-2, at 21; Doc. 13, at 5-6). Nonetheless, the undersigned finds that the use of this boilerplate phrase does not require remand in this case.
Similar arguments involving the use of popular boilerplate have been raised in this Court. See Winters, 2020 WL 5246710, at *22. Courts have generally concluded that the use of “bad boilerplate” in an ALJ's evaluation of a claimant's statements does not automatically undermine or discredit an ALJ's ultimate conclusion. Ronald B. v. Saul, No. 18-CV-5881, 2019 WL 3778070, at *5 (N.D. Ill. Aug. 12, 2018). This type of error is harmless so long as the ALJ points to information that justifies his or her conclusion. Ronald B., 2019 WL 3778070, at *5. Although the ALJ's decision in Ronald B., was ultimately remanded because the ALJ's “explanation failed to build an ‘accurate and logical bridge' between the evidence and her conclusions,” that certainly is not the case here. 2019 WL 3778070, at *5. In this case, the ALJ relied on the unremarkable findings in the treatment records when he found that Asch's statements about his symptoms and limitations were not entirely credible. (Doc. 12-2, at 21). Accordingly, the ALJ's use of boilerplate language in his RFC assessment does not require remand in this case.
Regarding Asch's argument that the ALJ improperly relied on his activities of daily living, this issue fails as well. Although the Commissioner generally argues that the ALJ's evaluation of Asch's symptoms complies with the applicable regulations and is supported by substantial evidence, he does not directly address Asch's contention that remand is required based on the holdings in Smith v. Califano, 637 F.2d 968 (3d Cir. 1981). In Smith, an ALJ found that the plaintiff, who was afflicted by two gastrointestinal impairments, was not disabled. 637 F.2d at 971. The Third Circuit found that the ALJ erred in drawing an inference from the plaintiff's record of sportive daily activities to a lack of disabling pain where there was an absence of corroborating medical testimony. Smith, 637 F.2d at 972.
In this case, remand is not required under Smith and the other cases cited by Asch. Asch does not specify what limitations set forth in his testimony should have, but were not, credited. Absent such specific allegations about what statements or symptoms were improperly discounted or what specific limitations established by Asch's testimony were improperly excluded from the RFC, it is difficult to evaluate Asch's arguments. SeeWinters, 2020 WL 5246710, at *23-24. Moreover, unlike in Smith, the ALJ, in this case, did not rely on Asch's statements about his ability to do regular household activities as evidence that he is not disabled. SeeSmith, 637 F.2d at 972. Instead, the ALJ relied on these statements when determining whether Asch's assertions about his symptoms were credible, which is permissible under the regulations. See 20 C.F.R. § 404.1529(c)(3)(i). Furthermore, the ALJ did not rely entirely on Asch's self-reported daily activities when evaluating his statements. The ALJ also relied heavily on a lack of support for the full extent of certain limitations in the treatment records. Thus, remand is not required under Smith. See 637 F.2d at 972.
Even though Asch cites evidence favorable to a disability finding, the ALJ decision is still supported by substantial evidence. SeeLouis v. Comm'r of Soc. Sec., 808 Fed.Appx. 114, 11819 (3d Cir. 2020); Kirk, 2015 WL 5915748, at *13. Based on the foregoing, the undersigned finds substantial evidence supports the ALJ's RFC assessment.
V. Recommendation
Based on the foregoing, it is respectfully recommended that the Commissioner's decision be AFFIRMED, and that judgment be entered in favor of the Commissioner and against Asch.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 13, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.