Opinion
Civil Action 3:16-cv-1331
10-10-2018
ERIC DAVID BAIR, Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Plaintiff Eric David Bair (“Plaintiff”), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. (Doc. 1). Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, I find that the final decision of the Commissioner of Social Security is supported by substantial evidence, and RECOMMEND that it be AFFIRMED.
II. STATEMENT OF FACTS AND OF THE CASE
On August 15, 2013, Plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act and an application for supplemental security income under Title XVI of the Social Security Act. In both applications, Plaintiff alleged that the onset of his disability was December 31, 2009, and that his disability was a result of the following impairments: head injury, compression fractures of C1 and L1, depression, fibromyalgia, walking/gait disturbance, fatigue, loss of motor skills and fine motor skills on his right side, cognitive difficulties, heat sensitivity, ligament damage in his left knee, herniated discs, migraines, sciatica, and arthritis. (Admin. Tr. 172). Plaintiff was thirty-four (34) years old as of his alleged onset date, and he has previously worked as a laborer, a machine operator (set up technician pharmaceutical industry), and a foam molder. (Admin. Tr. 22-23). Plaintiff has at least a high school education, and is able to read and write in English. (Admin. Tr. 23).
On October 4, 2013, Plaintiff's Application was denied at the initial level of administrative review. (Admin. Tr. 12). Following the denial of his Application, Plaintiff requested an administrative hearing on October 21, 2013. Id. On November 10, 2014, Plaintiff submitted a request to Administrative Law Judge Therese A. Hardiman (the “ALJ”) asking the ALJ to reopen a prior unfavorable decision that was issued by ALJ Richard Zack (“ALJ Zack”) on June 14, 2013, which the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) declined to review. (Admin. Tr. 225). Plaintiff argued his previous claim should be reopened because he had obtained new and material evidence concerning his impairments. (Admin. Tr. 225-226). On November 12, 2014, Plaintiff appeared and testified, with the assistance of counsel, at an administrative hearing before the ALJ. Id. Impartial vocational expert Michele C. Giorgio (the “VE”) also appeared and testified during the proceedings. Id. On December 19, 2014, the ALJ issued a written decision denying Plaintiff's Application for benefits and declining to reopen ALJ Zack's June 14, 2013 decision. (Admin. Tr. 12-24). The ALJ found that Plaintiff did not establish any grounds warranting a reopening; that res judicata applied; and that Plaintiff could not re-litigate the period of December 31, 2009 to June 14, 2013. (Admin. Tr. 12). Following the denial of his Applications at the ALJ hearing level, Plaintiff submitted a request for review of the ALJ's decision to the Appeals Council, and this request was subsequently denied on May 18, 2016. (Admin. Tr. 1).
On June 29, 2016, Plaintiff initiated this action by filing a Complaint in which he alleges that the ALJ's final decision denying his Application was erroneous and not supported by substantial evidence. (Doc. 1). As relief, Plaintiff requests that the Court enter an order reversing the decision of the Commissioner and granting Plaintiff's Application, or in the alternative, remand the case for further administrative proceedings. (Doc. 1 p. 3).
On August 23, 2016, the Commissioner filed her Answer in which she maintains that the decision denying Plaintiff's Application is correct; was made in accordance with the law; and is supported by substantial evidence. (Doc. 8). Along with her Answer, the Commissioner filed a certified transcript of the administrative proceedings. (Doc. 9). This case has been fully briefed and is ripe for disposition. (Doc. 11); (Doc. 12); (Doc. 13).
Prior to Plaintiff's alleged onset date, Plaintiff was hospitalized due to a motor vehicle accident on November 30, 1994. (Admin. Tr. 410). As a result of this accident, Plaintiff was diagnosed with multiple trauma, mild closed head injury, type one (1) odontoid fracture, left mandibular fracture with open reduction and internal fixation, L1 compression fracture, left fibula and left tibial plateau fractures, left scapular fracture, status post splenic hematoma with rupture, and status post left apical pneumothorax. Id. The treating physician at the hospital noted in Plaintiff's discharge plan that Plaintiff should follow-up with multiple doctors for care; however, there are no records of this follow-up care provided. (Admin. Tr. 412).
On, August 15, 2010, Plaintiff was in the ER due to a lumbar strain. (Admin. Tr. 284). Plaintiff complained of back pain that was a ten (10) out of ten (10) on the pain scale upon his discharge from the hospital, however his care providers at the hospital noted that Plaintiff had no trouble walking. (Admin. Tr. 287). On August 16 and 18, 2010, Plaintiff reported to the ER complaining again of lower back pain. (Admin. Tr. 299, 307). From both of these ER visits, Plaintiff was discharged the same day as his admittance and was ambulatory. (Admin. Tr. 300, 308). Plaintiff reported that he thought he must have injured his back when he recently picked up a child and heard his bones crunch. (Admin. Tr. 299). During his August 18, 2010 ER visit, Plaintiff had an MRI of his lumbar spine, which revealed a chronic fracture of the L2 vertebral body but no “acute fracture or subluxation, ” and moderate intervertebral disc space loss at ¶ 5-S1. (Admin. Tr. 315).
On July 18, 2012, Plaintiff underwent an EMG study, which according to Dr. Edwin Roman (“Dr. Roman”) produced normal findings. (Admin. Tr. 335). On January 17, 2013, Plaintiff had an MRI of his brain due to his complaints about headaches. (Admin. Tr. 351). This MRI revealed no acute hemorrhage or infarct (localized area of dead tissue), no abnormal white matter lesions, and no hydrocephalus (build-up of fluid in brain cavities); however, it did show significant temporal and frontal lobe atrophy that was out of proportion to Plaintiff's age. Id.
On June 8, 2012, Plaintiff was seen by a physician assistant from his primary care physician's office, Leonard Weber (“Mr. Weber”), for his lower back pain. (Admin. Tr. 395). Plaintiff told Mr. Weber that he believed his lower back pain was associated with his injuries sustained during his motor vehicle accident in 1994. (Admin. Tr. 395). Mr. Weber noted that Plaintiff had difficulty getting on and off of the exam table due to his pain. Id. At a follow-up visit on July 19, 2012, with a nurse practitioner from his primary care physician's office, Karen Peterman (“Ms. Peterman”), Plaintiff complained of lower back pain that was worse than normal and from which he could find no relief. (Admin. Tr. 389). Ms. Peterman referred Plaintiff for physical therapy and prescribed him a topical gel to help with his pain. (Admin. Tr. 391). At Plaintiff's physical therapy appointment on September 18, 2012, Plaintiff reported that he felt his condition had improved by twenty (20) to thirty (30) percent since he had started physical therapy in July of that year. (Admin. Tr. 438). At Plaintiff's October 9, 2012 appointment, Plaintiff's primary care physician, Dr. Nase, noted that Plaintiff reported that the medication Fentanyl was helping with his lower back pain, and that physical therapy helped with his range of motion but he was still having chronic pain. (Admin. Tr. 383).
During his January 14, 2013 appointment with Dr. Nase, Plaintiff reported that his lower back pain was mild in severity and aching. (Admin. Tr. 377). However, on February 26, 2013, Plaintiff complained that his back pain was waking him up at night, and that he had also been suffering from intermittent headaches of moderate severity. (Admin. Tr. 374-375). By April 24, 2013, Dr. Nase noted that Plaintiff reported his headaches were improving with medication and with staying well-hydrated. (Admin. Tr. 372).
On September 23, 2013, Plaintiff went to the ER for a migraine that he had been suffering from for three days. (Admin. Tr. 463, 467). He followed-up for his migraines on October 25, 2013, with Dr. Nase, who referred Plaintiff to a neurologist. (Admin. Tr. 506). On January 14, 2014, Plaintiff saw physician assistant Meghan J. Hurley (“Ms. Hurley”) under the supervision of neurologist Dr. Stuart M. Olinsky (“Dr. Olinsky”). (Admin. Tr. 480). Dr. Olinksy noted after Plaintiff's appointment that Plaintiff's headaches had “markedly improved since his last visit (November 13, 2013) when he received bilateral occipital nerve blocks and bilateral trigger point injections.” (Admin. Tr. 481). As a result of this appointment, Dr. Olinsky decided that Plaintiff should continue with the same medications, and that Plaintiff would receive routine trigger point injections. Id. Dr. Olinsky also noted during Plaintiff's January 14, 2014 appointment that Plaintiff had trigger point tenderness over both of his shoulders. Id. At Plaintiff's follow-up appointment on June 3, 2014, Dr. Olinsky noted that Plaintiff had trigger points mostly on the right side of Plaintiff's trapezius muscle. (Admin. Tr. 475).
Additionally, Plaintiff has complained on a few occasions of feeling depressed during the years 2013 and 2014, however, Dr. Nase noted at these appointments that Plaintiff denied any depressive symptoms or that Plaintiff was only experiencing a mild degree of depression. (Admin. Tr. 489, 495, 498, 504).
Having set out the relevant facts of this case, I turn now to the legal standards by which this Court evaluates social security appeals for claims made under Titles II and XVI of the Social Security Act.
III. LEGAL STANDARDS
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). 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). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “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). The question before this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on August 8, 2014.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §404.1520(e); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 42 U.S.C. §1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(f); 20 C.F.R. § 416.912(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
IV. ANALYSIS
A. The ALJ's Decision Denying Plaintiff's Application
In his December 19, 2014 decision denying Plaintiff's Application, the ALJ evaluated Plaintiff's claim at each step of the sequential evaluation process. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since December 31, 2009, the alleged onset date. (Admin. Tr. 15). At step two, the ALJ found that Plaintiff has the following medically determinable, severe impairments: headaches/migraines. Id. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 19).
Between steps three and four, the ALJ evaluated Plaintiff's RFC. He concluded that Plaintiff has the RFC to perform a range of medium work except that he has the following limitations:
[h]e could lift and carry up to 50 pounds occasionally, 25 pounds frequently. He could stand and/or walk up to 6 hours in an 8-hour workday and sit 6 hours. He could only engage in occasional bilateral upper extremity pushing and pulling. He could occasionally climb, balance, stoop, kneel, crouch, and crawl. He could only engage in occasional bilateral overhead reaching. He should avoid temperature extremes, humidity, vibration, and hazards, such as unprotected heights. He is further limited to unskilled work activity.(Admin. Tr. 19-20).
At step four, the ALJ found that Plaintiff is unable to engage in his past relevant work as a laborer, a machine operator (set up technician pharmaceutical industry), and a foam molder. (Admin. Tr. 22). At step five, the ALJ found that in consideration of Plaintiff's RFC and the vocational factors, there are jobs that exist in the national economy that Plaintiff can perform, including occupations such as a counter and rental clerk, sorter/sampler/tester, and hand packer/packager. (Admin. Tr. 23-24). Based on these findings, the ALJ concluded that Plaintiff does not meet the statutory definition of “disabled” under the Social Security Act. (Admin. Tr. 24).
B. The ALJ's Decision to Decline to Reopen ALJ Zack's Decision
Plaintiff asserts that the ALJ erred in failing to reopen ALJ Zack's June 14, 2013 decision regarding Plaintiff's previous Title II and Title XVI applications for benefits under the Social Security Act. (Doc. 11 p. 8). Plaintiff argues that ALJ Zack's previous decision should have been reopened because Plaintiff submitted new and material evidence that qualifies as “good cause” to reopen the decision under the regulations. (Doc. 11 pp. 9-10). In response, the Commissioner submits that Califano v. Sanders, 430 U.S. 99 (1977), instructs that a U.S. Federal Court does not have jurisdiction under 42 U.S.C. § 405(g) to review an ALJ's decision to decline to reopen a claimant's previous claim for benefits. (Doc. 12 pp. 4, 13). The Commissioner further submits that contrary to Plaintiff's assertions, the ALJ was not required to reopen Plaintiff's previous claim under the regulations. (Admin. Tr. 14-15).
The Commissioner notes two exceptions to this legal tenet, however, Plaintiff does not argue that this scenario fell within either of those exceptions; therefore, I will not address them. (Doc. 12 pp. 13-14).
Section 205(g) of the Social Security Act, codified as 20 C.F.R. § 405(g), states that:
[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action.20 C.F.R. § 405(g). In Sanders, the U.S. Supreme Court states that this language from 20 C.F.R. § 405(g) “cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits” because “[t]his provision clearly limits judicial review to a particular type of agency action, a final decision of the [Commissioner] made after a hearing.” 430 U.S. at 108. The Supreme Court further reasons that the U.S. District Court does not have jurisdiction to review such a decision because the allowance of a claimant to petition for an ALJ's final decision to be reopened is “afforded by the [Commissioner's] regulations and not by the Social Security Act. Id. The Supreme Court notes that the rare circumstance that would allow for judicial review would be when the denial of a claimant's petition to reopen is contested as a violation of claimant's constitutional rights. Id. at 109.
Here, Plaintiff submitted a brief to the ALJ requesting that the ALJ reopen Plaintiff's case because Plaintiff had new material evidence that Plaintiff believed would have impacted the outcome of his prior claim for benefits. (Admin. Tr. 225-226). The ALJ found that there were no grounds to reopen Plaintiff's prior case, and that Plaintiff was not allowed to relitigate the prior period because res judicata applied to Plaintiff's situation. (Admin. Tr. 12). Under the regulations, an ALJ may decide to reopen a case, upon a request filed within the proper time period, if the ALJ finds “good cause” to do so. 20 C.F.R. §§ 404.988(b), 416.1488(b). One of the grounds that qualifies as good cause to reopen a case is when a claimant provides new and material evidence. 20 C.F.R. §§ 404.989(a)(1), 416.1489(a)(1). These judgments that the ALJ makes in the course of the ALJ's consideration of reopening a claimant's case are discretionary in nature. See Tobak v. Apfel, 195 F.3d 183, 187 (3d Cir. 1999) (“It is well settled that federal courts lack jurisdiction under §205 to review the Commissioner's discretionary decision to decline to reopen a prior application”) (referencing Sanders, 430 U.S. at 107-109; Stauffer v. Califano, 693 F.2d 306, 307 (3d Cir. 1982)). Because the ALJ's decision to not reopen Plaintiff's case was discretionary, and no claim of Constitutional denial is made or supported in this record, I am unable to make a contrary judgment on this matter. Thus, there is no cause for remand on this ground.
C. The ALJ's Evaluation of Dr. Nase's Opinion
Next, Plaintiff asserts that the ALJ erred by failing to give deference to the opinions of treating physician Dr. Nase. (Doc. 11 p. 10). Plaintiff further asserts that “the ALJ's analysis of the medical record and assessment of [Plantiff's] residual functional capacity appear to be based on amorphous impressions.” (Doc. 11 p. 11) (internal citations omitted). The Commissioner submits in response that the weight allotted by the ALJ to Dr. Nase's opinion is supported by substantial evidence. (Doc. 12 p. 17).
The Commissioner's regulations define medical opinions as “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(a)(1), 416.927(a)(1). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(b), 416.927(b).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §§ 404.1527(c) and 416.927(c). Under some circumstances, the medical opinion of a “treating source” may even be entitled to controlling weight. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (defining treating source); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (explaining what is required for a source's opinion to be controlling).
Where no medical opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinion: (1) length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; (2) the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; (3) the extent to which the source's opinion is consistent with the record as a whole; (4) whether the source is a specialist; and, (5) any other factors brought to the ALJ's attention. 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, if the record contains an opinion from a medical source on an issue reserved to the Commissioner, the ALJ is required to apply the applicable factors articulated in 20 C.F.R. §§ 404.1527(c) and 416.927(c).
Furthermore, the ALJ's articulation of the weight accorded to each medical opinion must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.”). “Where a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.'” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
In this situation, the ALJ explained that she assigned little weight to Dr. Nase's Medical Source Statement for a few reasons. One of those reasons is that Dr. Nase's Medical Source Statement “is a circle/check the box form, with no explanation set forth to support each of the doctor's limitations.” (Admin. Tr. 21). The Third Circuit holds that “[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best” and that such reports are suspect in reliability when unaccompanied by thorough written reports. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (referencing Brewster v. Heckler, 786 F.2d 581, 585(3d Cir. 1986); Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984)). This Court discussed the application of Mason in Carter v. Astrue, No. 4:CV-07-2257, 2008 WL 2704535 (M.D. Pa. July 8, 2008). In Carter, this Court found it significant that Mason concerned a form report from a physician that only examined the claimant, not a report from a treating physician. 2008 WL 2704535, at *2 (citing Mason, 994 F.2d at 1065). The Court in Carter concluded that when a treating physician completes a form report that opines on a claimant's capabilities, such an opinion should not be outright rejected simply because of its format. Id. Nonetheless, the Court found that such a detail influences the weight allotted to a treating physician's opinion. Id. Therefore, both Mason and Carter indicate that a medical opinion in a checklist and fill-in-the-blank format without any explanation accompanying it is a legitimate factor to consider in weighing a doctor's opinion. Based on the foregoing case law, the ALJ's consideration of this factor with regard to Dr. Nase's opinion in the instant case was valid.
In addition to the format of Dr. Nase's opinion, the ALJ explained that Dr. Nase's opinion is inconsistent with her notes from the relevant period, which reflect normal objective findings and “no objective deficits [that] correlated to any actual impairments, including [Plaintiff's] headaches/migraines or the specific limitations that [Dr. Nase] has opined.” (Admin. Tr. 21). The ALJ also noted that the limitations found by Dr. Nase “are more significantly limited than [what Plaintiff] himself testified to.” Id. Indeed, upon review of Dr. Nase's treatment notes from the relevant period, there is nothing that indicates Plaintiff is as limited as Dr. Nase opined in her Medical Source Statement. In comparison to Dr. Nase's Medical Source Statement, which indicates that Plaintiff can rarely lift objects weighing less than ten (10) pounds; can rarely climb stairs; and cannot reach his arms overhead or out in front of him; (admin. tr. 415), Plaintiff testified that he can lift a quart of milk; (admin. tr. 39), can walk up and down the stairs about three times a day; (admin. tr. 38-39), and can reach his arms above his head and out in front of him. (Admin. Tr. 39-40). These inconsistencies with Dr. Nase's opinion in combination with the suspect format of her opinion constitute substantial evidence that support's the ALJ's decision to assign Dr. Nase's opinion little weight. Thus, the ALJ did not err on this ground.
D. The ALJ's Step Two Determination
Plaintiff next asserts that the ALJ's finding that Plaintiff's back and neck pain, “residuals of scapular fracture, ” and fibromyalgia are non-severe impairments is not supported by substantial evidence. (Doc. 11 p. 13). In response, the Commissioner submits that the ALJ's step two determination is supported by substantial evidence because the relevant evidence does not demonstrate that Plaintiff's back and neck pain, residuals of scapular fracture, and fibromyalgia are severe impairments. (Doc. 12 pp. 21-22).
Step two of the sequential evaluation process is when the ALJ determines whether a claimant has a medically determinable severe impairment or combination of impairments that would allow the ALJ to proceed to the other steps in the evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). Under the regulations, an impairment only qualifies as severe “if it significantly limits the claimant's physical or mental ability to do ‘basic work activities,' i.e., physical abilities and aptitudes necessary to do most jobs.” Lopez v. Colvin, No. 1:15-CV-01139, 2016 WL 4718153, at *5 (M.D. Pa. Aug. 3, 2016) (quoting 20 C.F.R. §§ 404.1521(b) and 416.921(b)). For this inquiry, it is incumbent upon the claimant to present evidence demonstrating that his or her impairment is severe. Bowen, 482 U.S. at 146 n. 5. With regard to the evidence presented by a claimant, “objective medical diagnoses alone are insufficient to establish severity at step two;” rather, a claimant's evidence must demonstrate that the claimant's limitation “significantly limited his or her ability to do basic work activities or impaired his or her capacity to cope with the mental demands of working.” Lopez, 2016 WL 471853, at *5 (referencing 20 C.F.R. §§ 404.1520(c), 416.920(c), 404.1521(a), 416.921(a); Salles v. Comm'r of Soc. Sec., 229 Fed.Appx. 140, 144-145 (3d. Cir. 2007)).
Keeping these regulations in mind, in the Third Circuit, the inquiry at step two is classified as a de minimis screening mechanism with the purpose of discarding meritless claims. See Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003); McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004). Indeed, the Third Circuit finds the threshold that must be met in order for an impairment to be considered severe is minimal, and that “[i]f the evidence presented by the claimant presents more than a ‘slight abnormality' the step-two requirement of ‘severe' is met, ” and the ALJ should proceed to step three. Newell, 347 F.3d at 546 (referencing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)).
Despite the fact that the determination at step two is a low bar to overcome, failing to find a claimant's impairment severe at step two does not necessarily transform an ALJ's decision into an erroneous one. Indeed, if an ALJ found that another impairment was severe, which allowed for the ALJ to continue the evaluation process, and the ALJ considered all of the Claimant's impairments in formulating the RFC, the ALJ's decision is acceptable. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§404.1523, 416.923, 404.1545(a)(2), and 416.945(a)(2); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); Shannon v. Astrue, No. 4:11-CV-00289, 2012 WL 1205816, at *10-11 (M.D. Pa. Apr. 11, 2012); Bell v. Colvin, No. 3:12-CV-00634, 2013 WL 6835408, at *8 (M.D. Pa. Dec. 23, 2013)). In essence, if an ALJ incorrectly determines that an impairment is non-severe, it is harmless error, as long as the claimant's impairment at issue was properly considered in assessing the RFC.
Here, the ALJ noted that Plaintiff was diagnosed with back pain, neck pain, fibromyalgia, (admin. tr. 15), and left scapular fractures in her step two discussion. (Admin. Tr. 17). With regard to Plaintiff's back and neck pain, the ALJ made several references to the evidence of record in order to explain why she found these impairments to be non-severe. Some of these reasons were that the record contains “no current imaging or EMG/NCS establishing the actual existence of any back, neck, or extremity impairment during the relevant period;” that Dr. Nase's objective medical findings report “no object[sic] deficits as to [Plaintiff's] back, neck, extremities, or neurological functions.;” (admin. tr. 15), and Plaintiff's examination findings for his neck and back at an ER visit for a migraine were noted as normal. (Admin. Tr. 16).
Concerning Plaintiff's fibromyalgia, the ALJ explained that though Plaintiff's neurologist, Dr. Olinsky, had identified some trigger points in Plaintiff's January 2014 and June 2014 examinations, Plaintiff's neurological examination in September 2014 does not note any trigger points; “trigger or tender points, as an objective finding, are not found anywhere else in the record during the relevant period;” and there is no evidence demonstrating that Plaintiff's fibromyalgia met the durational requirements for disability. Id. Finally, with regard to Plaintiff's residuals of scapular fracture, the ALJ explained that the record does not have any evidence of Plaintiff following up for treatment of this condition. (Admin. Tr. 17).
Regardless of the ALJ's reasoning in finding these impairments to be non-severe, it is evident in the ALJ's decision that the ALJ considered all of these impairments in the RFC assessment because the ALJ specifically considered the medical history of these impairments at step two, and because the ALJ noted that she considered Plaintiff's diary documenting the various kinds of pain he was experiencing during the day, (admin. tr. 21), which included notes about Plaintiff's back and neck pain, fibromyalgia, and residual pain from his scapular fracture. (Admin. Tr. 228-248). Thus, in the event that somehow the ALJ's reasoning in finding that these impairments are non-severe is flawed, it is harmless error because the ALJ's decision demonstrates that the impairments at issue were considered in the formulation of the RFC. Therefore, the ALJ did not err in his step two determination.
E. The ALJ's Credibility Determination
Next, Plaintiff asserts that there is “a lack of substantial evidence to support [the ALJ's] conclusion that Plaintiff's report that [sic] his symptoms were not credible”. (Doc. 11 p. 14). It appears that Plaintiff has made a typographical error in making this assertion, and I cannot say with certainty what his exact argument is because this initial assertion is only followed by two sentences. Id. In my understanding, I believe Plaintiff is arguing that the ALJ erred in finding that Plaintiff's allegations about his symptoms are less than credible. The Commissioner responds that the ALJ correctly made her credibility determination concerning Plaintiff's statements. (Doc. 12 p. 22).
It is well established in the Third Circuit that the Court “ordinarily defer[s] to an ALJ's credibility determination because he or she has the opportunity at a hearing to assess a witness's demeanor.” Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (referencing Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001)). In making this determination, “statements of the individual concerning his or her symptoms must be carefully considered, [however, ] the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. § 404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled.”)). Importantly, “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). SSR 96-7p instructs that a claimant's:
I am aware that SSR 96-7p was superseded by SSR 16-3p, however, at the time of the ALJ's decision, SSR 96-7p was still in effect.
statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints . . . [h]owever, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.SSR 96-7p, 1996 WL 374186 at *7.
Overall, in determining a claimant's credibility with regard to the intensity and persistence of symptoms, the ALJ is to “consider all of the available evidence.” 20 C.F.R. §§ 404.1529(a) and 416.929(a). In weighing all of the evidence of record, the significant factors that the ALJ will consider during the process are as follows: (1) a claimant's daily activities; (2) location, duration, frequency, and intensity of pain and other symptoms; (3) any precipitating or aggravating factors; (4) type, dosage, and impact/effectiveness of any current or past medications; (5) treatment, outside of medication, received for relief of symptoms; (6) other measures taken by a claimant in order to find relief from symptoms; and (7) other factors regarding a claimant's functional limitations and restrictions because of claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). With regard to these factors, SSR 96-7p states that it is:
not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and reasons for that weight.SSR 96-7p, 1996 WL 374186 at * 2.
In this situation, the ALJ named various reasons in the RFC analysis for why she did not find Plaintiff's testimony entirely credible. For example, the ALJ noted that though Plaintiff reported suffering from headaches, there are normal exam findings, such as an MRI of the brain from January 2013, which showed no acute hemorrhage or infarct, no abnormal white matter lesions, and no hydrocephalus (build-up of fluid in brain cavities), but did show evidence of temporal and frontal lobe atrophy. (Admin. Tr. 21). The ALJ also noted that Plaintiff only had four neurology appointments during the relevant period; “was treated with nerve blocks and trigger point injections, which provided some relief;” (admin. tr. 21), and that Plaintiff stated that his medications work for the most part. (Admin. Tr. 22). These reasons constitute substantial evidence that the ALJ reasonably relied upon in determining the credibility of Plaintiff's statements about his symptoms; therefore, the ALJ did not err.
V. RECOMMENDATION
Accordingly, for the foregoing reasons, I recommend that the ALJ's decision denying Plaintiff's Application for Benefits under Titles II and XVI of the Social Security Act be AFFIRMED as follows:
1. The Court should issue an order DENYING Plaintiff Eric David Bair's request for relief and AFFIRMING the final decision of the Commissioner of Social Security;
2. Final judgment should be issued by separate order in favor of the Acting Commissioner of Social Security and against Plaintiff Eric David Bair; and, 3. The clerk of court should CLOSE this case.
NOTICE OF RIGHT TO OBJECT UNDER LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local 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.