Opinion
CIVIL ACTION NO. 4:18-CV-01968
01-10-2020
CRAIG ALAN BRANDT, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
(BRANN, J.)
() REPORT AND RECOMMENDATION
Plaintiff Craig Alan Brandt brings this action under section 205 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 disability insurance benefits under Title II of the Act. The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b). For the following reasons, it is respectfully recommended that the Commissioner's decision be AFFIRMED. I. BACKGROUND AND PROCEDURAL HISTORY
In May 2015, Brandt filed an application for Title II disability insurance benefits, claiming disability beginning June 1, 2011, due to degenerative disc disease, bulging and tearing discs, hernia patches, muscle atrophy, tendonitis, overall musculoskeletal pain, and anxiety. (Doc. 1) (Doc. 5-11, at 5). The Social Security Administration denied the application on November 12, 2015, prompting Brandt's request for a hearing, which Administrative Law Judge ("ALJ") Randy Riley held on May 23, 2017. (Doc. 1, at 2). In a written opinion dated September 13, 2017, the ALJ determined that Brandt is not disabled and therefore not entitled to benefits under Title II. (Doc. 1, at 2). The Appeals Council denied Brandt's request for review. (Doc. 1, at 3).
On October 10, 2018, Brandt filed the instant action. (Doc. 1). The Commissioner responded on December 27, 2018, providing the requisite transcripts from Brandt's disability proceedings (Doc. 4). The parties then filed their respective briefs, (Doc. 9) (Doc. 10), with Brandt raising four bases for reversal or remand, (Doc. 9).
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 that exists 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 under Title II, 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 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 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 Brandt is disabled, but whether the Commissioner's determination that Brandt 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 his written decision, the ALJ determined that Brandt "was not under a disability, as defined in the Social Security Act, at any time from June 1, 2011, the alleged onset date, through December 31, 2014, the date last insured." (Doc. 5-2, at 36, ¶ 11). 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 first determined that Brandt "last met the insured status requirements of the Social Security Act on December 31, 2014." (Doc. 5-2, at 29, ¶ 1).
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(a)-(b). The ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574(a)(2). Here, the ALJ determined that Brandt "did not engage in substantial gainful activity during the period from his alleged onset date of June 1, 2011 through his date last insured of December 31, 2014," and therefore proceeded to step two. (Doc. 5-2, at 30, ¶ 2).
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 which 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 a claimant establishes a severe impairment or combination of impairments, the ALJ considers step three. In this case, ALJ concluded that Brandt had two severe impairments—obesity and degenerative disc disease of the lumbar spine—and two non-severe impairments—"hernia patches" and an enlarged heart. (Doc. 5-2, at 30, ¶ 3). Regarding Brandt's allegations of disability due to anxiety disorder and tendinitis, the ALJ determined that "the evidence of record does not establish the presence of signs or findings to establish that either . . . is a medically determinable impairment . . . ." (Doc. 5-2, at 30, ¶ 3).
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. Part 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). The sections in this appendix are commonly referred to as "listings." If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled, otherwise the ALJ must proceed to and analyze the fourth step of the sequential analysis. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that none of Brandt's impairments, considered individually or in combination, met or equaled the severity of a listed impairment. (Doc. 5-2, at 30). The ALJ specifically considered listing 1.04 (disorders of the spine). (Doc. 5-2, at 31); 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.04.
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 considers all 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 according to 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). Brandt alleged that his impairments caused difficulties lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, and completing tasks. (Doc. 5-2, at 32) (Doc. 5-11, at 29). At his hearing, Brandt testified to similar symptoms, which the ALJ summarized as follows:
[Brandt] testified that since April 14, 2014 he has used a cane every time he is standing or walking around and used a cane to steady himself while walking. He used a cane to stand and walk because he would experience a random, sharp attack of pain such that his back would get aggravated while walking along and he would need a cane to avoid falling down. He experienced back pain while sitting. His back pain was quite severe, sharp, and intense during October 2014 to December 2014 and it would radiate to his knees and to his feet mostly all day long more than once a week. Standing up, walking, bending, and stooping would make his pain worse. He could not bend and stoop and used a grabber to pick up items off the floor. He would take Percocet three times a day and his back pain was a "six" on a scale of one to ten. He experienced muscle spasms that were very crippling such that he could barely stand, could not move at all, and walk in baby steps. He has not had any periods of significant relief of back pain since 2014. He would lay down with his feet out to deal with his pain. He would lie down on a specially padded bed to deal with his pain and to avoid his back going into spams [sic]. He would try to do dusting or cleaning that did not involve bending over.
He could only sit for five minutes before the pain started shooting up from lower back into shoulders and into his legs. He could only sit up to ten minutes before he would need to get up and walk around. He would experience greater pain due to alternating between sitting and standing and would need to lie down. He could stand for up to forty minutes but would get discomfort after twenty minutes of standing and would need to lay down for forty-five minutes to one hour after doing so. He could slowly walk for ten minutes with a cane. He would have difficulty maintaining his balance on an uneven surface and if one foot was higher than the other he experienced more pain. He did not drive because of his inability to sit. He experienced four bad days a week during which his pain level was a seven or eight with his medication. He experienced three good days a week during which his pain level was a five or six. He had difficulty sleeping because of his pain such that he would have to change positions every few minutes.
(Doc. 5-2, at 32).
After weighing Brandt's testimony against other evidence in the record, the ALJ found that Brandt's impairments could reasonably be expected to cause the alleged symptoms, but that his statements about the intensity, persistence, and the limiting effects of the symptoms are not entirely consistent with the medical evidence and other evidence in the record. (Doc. 5-2, at 32-33). Based on his consideration of these medical opinions and other relevant evidence of record, the ALJ then determined that, through the date last insured, Brandt "had the residual functional capacity for the relevant period to perform less than the full range of light work defined in 20 CFR 404.1567(b). He has a stand/walk limitation of two hours. He can never climb ladders. He is limited to jobs that can be performed while using a cane to ambulate." (Doc. 5-2, at 31, ¶ 5).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b).
E. STEP FOUR
Step four requires the ALJ to determine whether the claimant has the residual functional capacity 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), 404.1560(b)(3). Past relevant work is defined as 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 how to do it. 20 C.F.R. § 404.1560(b). "If the claimant can perform his past relevant work despite his limitations, he is not disabled." Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)). At this step, 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 it" or "as ordinarily required by employers throughout the national economy." Garibay v. Comm'r Of Soc. Sec., 336 F. App'x 152, 158 (3d Cir. 2009) (quoting S.S.R. 82-6). Here, the ALJ found that Brandt had performed past relevant work as a "laborer (stores)"—a job which Brandt had performed at heavy exertional level but is generally performed at medium exertional level, unskilled—but went on to determine that "the evidence of record establishes [Brandt] was unable to perform any of his past relevant work given his residual functional capacity." (Doc. 5-2, at 35).
F. STEP FIVE
At step five, 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, they will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v). Here, based on the testimony adduced from a vocational expert at Brandt's administrative hearing, the ALJ determined that Brandt "was capable of making a successful adjustment to other work that existed in significant numbers in the national economy" and therefore found Brandt not disabled under 20 C.F.R. § Pt. 404, Subpt. P, App. 2 §§ 201.27 (maximum sustained work capability of claimant who is limited to sedentary work due to severe medically determinable impairment) and 202.20 (maximum sustained work capability of claimant who is limited to light work due to severe medically determinable impairment). IV. DISCUSSION
Brandt argues that the ALJ (1) incorrectly concluded at step three that Brandt's back condition did not meet listing 1.04; (2) failed to properly consider Brandt's severe impairments of obesity and degenerative disc disease; (3) failed to properly consider Brandt's non-severe impairments of recurrent hernias, tendonitis, and enlarged heart; and (4) erroneously determined Brandt's residual functional capacity. All but Brandt's first argument on appeal concern the ALJ's crafting of Brandt's residual functional capacity between steps three and four.
A. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S STEP-THREE DETERMINATION
Brandt first argues that the ALJ erred when he concluded, at step three, that Brandt's impairments do not equate to those in listing 1.04. Incorporating the full text of 1.04, the ALJ addressed step three as follows:
The evidence of record does not establish the claimant's lumbar spine impairment met or medically equaled listing 1.04A because it did not result in compromise of a nerve root (including the cauda equina) or the spinal cord with: A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); OR B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; OR C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.The ALJ then determined that Brandt's degenerative disc disease, considered individually or in conjunction with Brandt's obesity, did not qualify Brandt for per se disability under 1.04. (Doc. 5-2, at 31).
(Doc. 5-2, at 31).
Listing 1.00B2b provides, in relevant part, as follows: "Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. . . . To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation."
It is the responsibility of the ALJ to identify the relevant listed impairments, because it is "the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, at 120 (3d Cir. 2000). If a claimant's impairment meets or equals one of the listed impairments, a claimant is disabled under the regulations. 20 C.F.R § 404.1520(d); Burnett, 220 F.3d at 119. However, to qualify for benefits by showing that an impairment (or combination of impairments) is equivalent to a listed impairment, the claimant bears the burden of presenting "medical findings equivalent in severity to all the criteria for the one most similar impairment." Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original); 20 C.F.R § 404.1520(d). An impairment, no matter how severe, that meets or equals only some of the criteria for a listed impairment is not sufficient. Sullivan, 493 U.S. at 521.
In this case, considering the record as a whole, the Court finds substantial evidence to support the ALJ's determination that Brandt exhibited some, but not all, of the criteria provided in the listing 1.04. As the ALJ observed, while Brandt's medical records demonstrate reduced range of motion and one positive straight-leg raising test during the relevant period, Brandt's range of movement improved with physical therapy; his straight-leg raising tests were otherwise negative; and he generally exhibited 5/5 strength in upper and lower extremities, normal muscle bulk and tone in lower extremities, normal sensation, balance and gait, coordination, and fine motor skills, no tremors, and symmetric reflexes in his upper and lower extremities. Indeed, Brandt's medical records consistently reflect "no evidence of direct nerve compression," the critical criterion of 1.04A, nor is there objective medical evidence of significant atrophy. (Doc. 5-2, at 30-31) (Doc. 5-12, at 12, 39) (5-16, at 5-10, 46). That Brandt had a single positive straight-leg raising test does not, as Brandt suggests, establish disability under that factor. See 20 C.F.R., pt. 404, subpt. P, app. 1 § 1.00D ("Because abnormal physical findings may be intermittent, their presence over a period of time must be established by a record of ongoing management and evaluation."). Likewise, although Brandt had been diagnosed with mild stenosis (though, at times, no stenosis) (Doc. 5-12, at 12), he has not referred the Court to objective medical evidence indicating that stenosis resulted in pseudoclaudication or specifically manifested in nonradicular pain or weakness. Even if Brandt had, in fact, established those criteria, there is sufficient evidence in the record to support the ALJ's determination that Brandt is able to ambulate, albeit with a single-point cane.
Accordingly, it is evident that the ALJ analyzed the appropriate medical evidence in reaching the conclusion that Brandt did not meet the criteria of any of the listed impairments considered. See, e.g., Leibig v. Barnhart, 243 F. App'x 699, 702 (3d Cir. 2007) (finding ALJ properly found claimant "did not meet or equal listing 1.04A" where doctors had found "no evidence of motor, sensory, or reflex abnormality"; claimant "possessed normal motor power, grip strength, station, and gait"; and "there was no evidence of atrophy"); Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (finding the ALJ's decision, read as a whole, illustrates that the ALJ considered the appropriate factors in reaching the conclusion that Jones did not meet the requirements for any listing); Caruso v. Comm'r of Soc. Sec., 99 F. App'x 376, 380 (3d Cir. 2004) (finding substantial evidence to support step-three determination where the ALJ recited and analyzed the listings' criteria throughout the opinion); see also Jenkins v. Comm'r of Soc. Sec., 192 F. App'x 113, 119 (3d Cir. 2006) ("Accordingly substantial evidence supports the ALJ's determination that Jenkins' impairments did not match any of those listed. Although the ALJ did not specifically state which subsections he considered in making his determination, his findings are sufficiently explained to allow meaningful judicial review, and that is what Burnett requires.").
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S RFC ASSESSMENT
Brandt's remaining arguments center on his contention that, in assessing his RFC, the ALJ failed to adequately consider her limitations given the medical and opinion evidence. The determination of an individual's RFC falls solely within the purview of the ALJ. 20 C.F.R. § 404.1546(c); SSR 96-8P, 1996 WL 374184 (S.S.A. July 2, 1996). RFC means "that which an individual is still able to do despite the limitations caused by his or her impairment(s).'" Burnetti, 220 F.3d at 121 (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir. 1999)). It reflects the most that an individual can still do, despite his or her limitations, and is used at steps four and five to evaluative the claimant's case. 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8P, 1996 WL 374184 at *2. The Court's "review of the ALJ's assessment of the plaintiff's RFC is deferential," and the "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); see also Martin v. Comm'r of Soc. Sec., 547 F. App'x 153, 160 (3d Cir. 2013) ("We examine the ALJ's conclusions as to a claimant's RFC with the deference required of the substantial evidence standard of review." (internal quotation marks omitted)).
The ALJ must consider all the evidence of the record and, regardless of its source, "evaluate every medical opinion . . . receive[d]." Burnett, 220 F.3d at 121 (internal citations omitted); see 20 C.F.R. § 416.927(c); see also SSR 96-8P, 1996 WL 374182, at *2 ("RFC is assessed by adjudicators at each level of the administrative review process based on all of the relevant evidence in the case record, including information about the individual's symptoms and any 'medical source statements' . . . ."). Under the regulations, medical opinions are defined as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). If a conflict exists in the evidence, "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). It is the duty of the ALJ to explain the rationale for the weight afforded to each medical opinion, as this allows for meaningful judicial review. Plummer, 186 F.3d at 429 ("The ALJ must consider all the evidence and give some reason for discounting the evidence that [the ALJ] rejects." (quoting Mason, 994 F.2d at 1066)).
Applying the above standard to the present record, the Court finds substantial evidence to support the ALJ's determination that Brandt's assertions concerning his limitations for the period from June 1, 2011, to December 31, 2014, were not entirely consistent with medical and other evidence. Addressing Brandt's medical records, the ALJ noted several findings that tended to corroborate the existence of Brandt's impairments: (1) "[d]iagnostic testing pertaining to [Brandt's] lumbar spine has indicated abnormal findings"; (2) "[Brandt's] medical records [] indicate he is obese"; (3) "[Brandt] was assessed with clinical examination findings of 'very tight' hamstrings and hip rotator muscles, tightness in the left lower lumbar spine, an antalgic gait and station, [and] an abnormal gait pattern"; and (4) "diminished range of motion of the lumbar spine, 'tightness' of the lumbar paravertebral muscles, tenderness of the sacroiliac joints and lumbar spine, diminished step length, and diminished hip and leg strength bilaterally." (Doc. 5-2, at 33). The ALJ also observed that Brandt received "treatment with a pain management specialist as well as an emergency department[] for his symptoms related to his severe physical impairments," which treatment included injections, physical therapy, and pain medications. (Doc. 5-2, at 33).
On the other hand, the ALJ further noted medical records that tended to undercut Brandt's allegations concerning the severity of his impairments:
5/5 strength in the upper [] and lower extremities, normal muscle bulk and tone in the lower extremities, a negative straight leg raising test bilaterally, sensation grossly intact in his lower extremities to light touch, temperature, and sharp social discrimination, a negative Babinski sign, no ankle clonus, no tenderness to palpitation along the PSIS or sacroiliac joint, no tenderness of the lower extremities, and a normal gait and station without antalgia or ataxia.Brandt "was also noted to be able to do a heel and toe gait and stand from a seated position"; reported that he had been looking for "lighter duty" work at some point; and had "refused treatment recommendations prior to his date last insured." (Doc. 5-2, at 33). Moreover, "while MRI's [sic] of [Brandt's] lumbar spine performed during May 2012 and March 2014 indicated abnormal findings, a physician noted there was little interval change between the MRI's [sic] performed during May 2012 and March 2014." (Doc. 5-2, at 33).
(Doc. 5-2, at 33).
The ALJ also considered and weighed the medical opinions of (1) non-examining state agency psychological consultant Mark Hite, Ed.D.; (2) physical therapist Charles Eberling; and (3) Stuart Hartman, D.O. In November 2015, upon review of Brandt's medical records and self-reported functional limitations, Hite opined that there was insufficient evidence to substantiate the presence of a mental impairment, namely anxiety. (Doc. 5-2, at 34) (Doc. 5-8, at 6). To Hite's opinion the ALJ assigned "significant weight . . . because it [wa]s consistent with the evidence of record pertaining to this matter." (Doc. 5-2, at 34).
A non-examining source includes State agency medical and psychological consultants, other program physicians and psychologists, and medical experts or psychological experts consulted by the Social Security Administration. 20 C.F.R. § 416.902.
Eberling saw Brandt on January 20, 2016, and completed a "disability work assessment/physical capacities evaluation" reporting Brandt's "current level of physical disabilities," including a recommendation that Brandt could perform sedentary work and lift up to 21 pounds. (Doc. 5-18, at 4) (Doc. 5-2, at 34). The ALJ gave limited weight to Eberling's evaluation—making no mention of the findings therein—because it did not address the critical period from June 2011 (onset date) to December 2014 (date last insured) and therefore had "limited probative value." (Doc. 5-2, at 34). Likewise, the ALJ gave limited weight to Doctor Hartman's opinion, which addressed Brandt's limitations as of August 31, 2016, over two years after the last-inured date. (Doc. 5-2, at 34). As with his treatment of Eberling, the ALJ declined to detail or analyze any specific portions of Dr. Hartman's opinion. (Doc. 5-2, at 34).
"[A] physical therapist is not an acceptable medical source" to whom the "rules for evaluating acceptable medical source statements" would apply. Hatton v. Comm'r of Soc. Sec. Admin., 131 F. App'x 877, 878 (3d Cir. 2005). Physical therapists' statements or opinions "are entitled to consideration as additional evidence, but are not entitled to controlling weight." Hatton, 131 F. App'x at 878.
Regarding non-medical evidence, the ALJ reviewed and considered a third-party functional assessment provided by Brandt's sister, Karla Shantz, as well as Brandt's mother's hearing testimony. The ALJ afforded little weight to the third-party function report of Brandt's sister as well as to Brandt's mother's testimony because neither was "consistent with [Brandt's] medical records on a longitudinal basis." (Doc. 5-2, at 34). In doing so, the ALJ cited to the following examples from Brandt's medical records: (1) "clinical examination findings of normal muscle bulk and tone in the lower extremities"; (2) "a negative straight leg raising test bilaterally"; (3) "sensation grossly intact in his lower extremities to light touch, temperature, and sharp social discrimination"; (4) "a negative Babinski sign"; (5) "no ankle clonus"; (6) "no tenderness to palpitation along the PSIS or sacroiliac joint"; (7) "no tenderness of the lower extremities"; and (8) "a normal gait and station without antalgia or ataxia." (Doc. 5-2, at 34).
In finding that the ALJ properly weighed the evidence in the record, the Court notes that no "symptom or combination of symptoms can be the basis for a finding of disability" before the date last insured "unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment." Perez v. Comm'r of Soc. Sec., 521 F. App'x 51, 55 (3d Cir. 2013) (quoting SSR 96-4p, 1996 WL 374187, at *1 (July 2, 1996)) (internal quotation marks omitted). Moreover, there must be "evidence that the condition significantly limited his ability to do basic work activities during the insured period." Kirkland v. Colvin, No. CIV.A. 14-224, 2015 WL 5732178, at *1 (W.D. Pa. Sept. 30, 2015) (quoting Perez, 521 F. App'x at 55)).
Finally, although not dispositive, the records do reflect the 2013 notes of Bryan Pilkington, M.D., containing the statement, "I suspect the patient is looking for a means of disability and may not have anything structurally wrong." (Doc. 5-12, at 4). V. RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision be AFFIRMED and that the Clerk of Court be directed to CLOSE this case.
Dated: January 10, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge CRAIG ALAN BRANDT, Plaintiff, v. ANDREW SAUL, Defendant. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 10, 2020.
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.
Dated: January 10, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge