Opinion
Civil Action 4:20-CV-1884
02-08-2022
DEBORAH CERIFKO, Plaintiff v. KILOLO KIJAKAZI, [1] Defendant
(BRANN, C.J.)
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Deborah Cerifko, 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 her application for disability insurance benefits under Title II of the Social Security Act. 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 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's 1 final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On December 13, 2017, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 10). In this application, Plaintiff alleged she became disabled on August 28, 2017, when she was fifty years old, due to the following conditions: fibromyalgia, migraines, syncope/dizzy spells, pinched nerve in neck, irritable bowel syndrome, depression, anxiety, acid reflux, and asthma. (Admin. Tr. 199). Plaintiff alleges that the combination of these conditions affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, remember things, complete tasks, concentrate, use her hands, and get along with others. (Admin. Tr. 237). Plaintiff has at least a high school education. (Admin. Tr. 25). Before the onset of her impairments, Plaintiff worked as a an administrative assistant and customer service manager. Id.
On March 27, 2018, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 10). On April 6, 2018, Plaintiff requested an administrative hearing. Id. 2
On March 19, 2019, Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Sharon Zanotto (the “ALJ”). Id. On June 27, 2019, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 27). On August 23, 2019, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 170).
On August 31, 2020, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1).
On October 13, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Doc. 1, ¶ 13). As relief, Plaintiff requests that the Court award benefits, or in the alternative remand this case to the Commissioner for a new administrative hearing. (Doc. 1, ¶ 14).
On April 28, 2021, the Commissioner filed an Answer. (Doc. 13). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Doc. 13, ¶ 9). Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 14). 3
Plaintiff's Brief (Doc. 15), the Commissioner's Brief (Doc. 20), and Plaintiff's Reply (Doc. 21) have been filed. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals.
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); 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 4 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 Plaintiff 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. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
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 5 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); see also 20 C.F.R. § 404.1505(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); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(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 June 27, 2019.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(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, 6 work experience and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(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). In making this assessment, the ALJ considers all 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).
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); 20 C.F.R. § 404.1512; 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(b)(3); 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 7 ALJ adequately explain the legal and factual basis for this disability determination. Thus, 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. DISCUSSION
Plaintiff raises the following issues in her statement of errors:
(1) The ALJ failed to properly weigh the opinion of treating physician, John Schwartz, DO.
(2) The ALJ failed to properly evaluate Ms. Cerifko's mental impairments.
(3) The ALJ's multiple errors with symptom evaluation compel reversal.(Doc. 15, p. 1).
A. The ALJ's Decision Denying Plaintiff's Application
In her June 2019 decision, the ALJ found that Plaintiff meets the insured status requirement of Title II of the Social Security Act through December 31, 2023. (Admin. Tr. 12). Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process. 8
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between August 27, 2017 (Plaintiff's alleged onset date) and June 27, 2019 (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 12).
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: cervical radiculopathy; cervicalgia status post cervical fusion C5-6 and C6-7; mild cervical spondylosis C3-4 and C4-5; asthma, irritable bowel syndrome/inflammatory bowel arthritis; migraines; depressive disorder; and anxiety disorder. (Admin. Tr. 13-14). The ALJ also identified medically determinable non-severe impairments, and a non-medically determinable impairment at this step. The ALJ found that the following impairments were non-severe: hypothyroidism and gastroesophageal reflux disease. Id. The ALJ found that fibromyalgia was not a medically determinable impairment. Id.
At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 14). 9
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in light work as defined in 20 C.F.R. § 404.1567(b) except:
she can frequently lift 10 pounds and occasionally lift 20 pounds; she can stand/walk up to 6 hours per 8-hour workday; she can sit up to 6 hours per eight-hour workday; pushing/pulling is unlimited as is operation of foot controls; she has no postural limitations or communicative limitations; she is precluded from working around moving mechanical parts and unprotected heights; she is limited to understanding, remembering, and carrying out simple instructions; she is precluded from jobs that require adherence to precise limits, tolerances, and standards directing the activities of others and influencing the opinions of others or performing pace work; she is limited to only occasional work setting, process or tool changes; and occasional interaction with coworkers.(Admin. Tr. 16).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in her past relevant work. (Admin. Tr. 25).
At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 26-27). To support her conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: machine feeder, DOT #583.686-014; line attendant, DOT #920.687-042; and mail sorter, DOT #209.687-026. (Admin. Tr. 26). 10
B. Whether the ALJ Properly Evaluated Dr. Schwartz's Opinion About Plaintiff's Physical Limitations
The Commissioner's regulations define a medical opinion as “a statement from a medical source about what [a claimant] can still do despite [his or her] impairment(s) and whether [he or she has] one or more impairment-related limitations or restrictions in the following abilities:”
(i) [The] ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) [The] ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) [The] ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 404.1513(a)(2). A “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State of Federal Law, or an individual who is certified by a States as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law. 20 C.F.R. § 404.1502(d). If one medical source submits multiple medical opinions, and ALJ will articulate 11 how he or she considered the medical opinions from that medical source in a single analysis. 20 C.F.R. § 404.1520c(b)(1).
An ALJ's consideration of competing medical opinions is guided by the following factors: the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability); the extent to which the medical source's opinion is consistent with the record as a whole (consistency); length of the treatment relationship between the claimant and the medical source; the frequency of examination; the purpose of the treatment relationship; the extent of the treatment relationship; the examining relationship; the 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 are the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2). The ALJ will explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. The ALJ may, but is not required to, explain his or her consideration of the other factors unless there are two equally persuasive medical opinions about the same issue that are not exactly the same. 20 C.F.R. § 404.1520c(b)(3). Unlike prior regulations, under the current regulatory scheme, when considering medical opinions, an ALJ “will not defer or give any specific 12 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c(a).
In January 2019, primary care physician John R. Schwartz, D.O. completed a check-box medical source statement about Plaintiff's physical limitations. (Admin. Tr. 802-806). Dr. Schwartz listed Plaintiff's diagnoses as: fibromyalgia, chronic pain, anxiety, lethargy, and syncope. Id. He assessed that Plaintiff could: sit less than fifteen minutes at a time, and for less than two hours total in an eight-hour work day; stand less than fifteen minutes at one time, and stand/walk less than two hours per eight-hour workday; occasionally lift and carry up to ten pounds; frequently hold head in a static position; occasionally turn her head right or left; rarely look down, look up, twist, stoop, crouch, or climb stairs; and never climb ladders. Id. Dr. Schwartz also assessed Plaintiff would be unable to tolerate work stress, must be permitted to shift (from sitting to standing) at will, would need up to four unscheduled 15-30 minute breaks per day, would be able to spend less than 5% of each work day using her hands, fingers or arms, and would be absent more than four days per month. Id.
In her decision denying Plaintiff's application, the ALJ found that Dr. Schwartz's opinion was “not persuasive.” In doing so, the ALJ explained:
I have found not persuasive the January 24, 2019 assessment of John R. Schwartz, D.O., a family physician, finding that the claimant13
constantly experiences pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks, that she is incapable of even “low stress” jobs, that she can walk less than one city block without rest or severe pain, that she can sit 15 minutes at one time before needing to get up, that she can stand 15 minutes at one time before needing to sit down, walk around, etc., that she can sit less than 2 hours per 8-hour workday, that she can stand/walk less than 2 hours per 8-hour workday, that she needs to include periods of walking around during an 8-hour workday, that she must walk for 6 minutes every 20 minutes, that she needs a job that permits shifting positions at will form sitting, standing, or walking, that she will need to take unscheduled breaks 3-4 times per eight-hour workday for 15-20 minutes each, that her legs must be elevated with prolonged sitting, that she can occasionally lift less than 10 pounds, rarely lift 20 pounds and never lift 50 pound, that she can rarely look down or loop up, that she can occasionally turn her head right or left that she can frequently hold her head in static position, that she can never climb ladders, that she can rarely twist, stoop, crouch/squat, and climb stairs, that she can use the bilateral hands less than 5% of the time for grasping, turning, and twisting objects, that she can use the fingers bilaterally less than 5% of the time for reaching (including overhead), and that she will likely be absent from work as a result of the impairments or treatment more than four days per month (Ex. 21F), as it not supported by or consistent with the other substantial evidence of record. Clinical findings have shown normal strength, normal sensation, normal range of motion, and normal gait. Additionally, she has required no more than conservative care.(Admin. Tr. 24).
1. Whether the ALJ's Determination that Dr. Schwartz's Opinion Is Inconsistent with the Record is Supported By Substantial Evidence
Plaintiff argues:
First, the ALJ noted that Dr. Schwartz's opinion was not consistent with the record. (Tr. 22) Contrary to the ALJ's finding, the record regularly documents symptoms and findings that are consistent with14
Dr. Schwartz's opinion: left shoulder pain, worsening aching pain in her hips, shoulders, and feet, headaches, severe neck pain, numbness and tingling in her hands and arms, positive Hawkins test and impingement sign, positive Phalen's sign, and tenderness to palpation in the knees, shoulders, knees, and hips. (Tr. 301, 315, 325, 326, 586, 640, 842) Supportive diagnostic studies include a left shoulder MRI dated September 13, 2017, which showed tendinosis of the supraspinatus tendon and some longitudinal partial thickness tearing (Tr. 319-20), and a cervical MRI from March 2019 which revealed cervical spondylosis at ¶ 3-4 and C4-5 and post-operative fusion changes at ¶ 5-6 and C6-7 (Tr. 846).(Doc. 15, pp. 7-8).
In response, the Commissioner argues:
Plaintiff maintains that the record documents symptoms and findings consistent with Dr. Schwartz's opinion such as left shoulder, hip, neck, and foot pain, and headaches (Pl.'s Br. at 7-8). In evaluating an individual's subjective complaints, the regulations require objective clinical signs and laboratory findings demonstrating the existence of a medically determinable impairment that could reasonably be expected to produce the alleged symptoms. 20 C.F.R. § 404.1529(b). If the medical evidence establishes the existence of such an impairment, the ALJ evaluates the intensity and persistence of the symptoms and their effect on the claimant's ability to work in light of the record. 20 C.F.R. §§ 404.1529(c)(1)-(3). “This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). The ALJ is given great discretion in evaluating a claimant's subjective complaints, and her findings are entitled to great deference. Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014).
Admittedly, Plaintiff complained of various pains and symptoms during the relevant period. But when evaluating a claimant's symptoms, the ALJ must consider the extent those symptoms can reasonably be accepted as consistent with the objective medical and other evidence. Indeed, “[o]bjective medical evidence . . . is a useful indicator to assist us in making reasonable conclusions about the15
intensity and persistence of your symptoms.” 20 C.F.R. § 404.1529(c)(2); see also SSR 16-3p, 2016 WL 1237964. And while there was some objective evidence of abnormalities during testing, as Plaintiff indicates, other tests revealed no abnormalities.
Importantly, it is the ALJ's responsibility, as the fact-finder, to carefully evaluate the evidence and determine the persuasiveness of an opinion. See 20 C.F.R. § 404.1520c (2017) (explaining how ALJs evaluate medical opinion evidence and prior administrative medical findings for claims filed after March 27, 2017 like this one). Plaintiff is simply asking that the Court reweigh the evidence in her favor. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2006) (stating that “Courts are not permitted to re-weigh the evidence or impose their own factual determinations.”). Moreover, the question before this Court is not whether some evidence supports Plaintiff's interpretation of the record, but whether substantial evidence supports the ALJ's decision. See e.g., Izzo v. Comm'r of Soc. Sec., 186 Fed.Appx. 280, 283 (3d Cir. 2006) (where “evidence in the record is susceptible to more than one rational interpretation, [the Court] must accept the Commissioner's conclusions.”); Owens v. Colvin, No. 0:13-386, 2014 WL 7043215, at *4 (D.S.C. Dec. 12, 2014) (citations omitted) (“Although the plaintiff may be able to point to selective evidence in support of a finding of greater limitations . . ., he has failed to demonstrate that the ALJ's decision is unsupported by substantial evidence . . . . Simply because the plaintiff can produce conflicting evidence which might have resulted in a contrary interpretation is of no moment.”).(Doc. 20, pp. 20-23) (internal footnote omitted).
Evidence supporting an ALJ's decision to denying benefits is not substantial” “if it is overwhelmed by other evidence.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). To the extent Plaintiff argues that the evidence cited by the ALJ in support of his decision to discount Dr. Schwartz's opinion is overwhelmed by other evidence supporting the opposite conclusion, I am not 16 persuaded. In her brief, Plaintiff relies on the following pieces of evidence: Admin. Tr. 301, 315, 325, 326, 586, 640, 842. (Doc. 15 p. 8).
Five of the seven records cited by Plaintiff are statements made by Plaintiff and recorded by her physicians. (Admin. Tr. 301) (October 27, 2017 treatment record where Plaintiff “describes having a history of chronic migraine headaches.”); (Admin. Tr. 325-26) (January 8, 2018 treatment note where the “history of present illness” as reported by Plaintiff was “Rheumatology General” located in the hip, shoulder, foot, and diffuse in multiple sites); (Admin. Tr. 586) (July 6, 2018 treatment record where Plaintiff's chief complaint was recorded as “fibromyalgia, pain in multiple sites”); (Admin. Tr. 640) (June 21, 2018 treatment record noting that Plaintiff reports headaches getting progressively worse with pain at ¶ 8/10 or 10/10); (Admin. Tr. 842) (February 27, 2019 treatment record where Plaintiff reports she no longer gets migraines but has daily headaches of a different type). The reproduction of a claimant's statements about his or her symptoms in a medical record does not afford those statements any special significance. Such statements are not objective evidence and are not medical opinion evidence. See Morris v. Barnhart, 78 Fed.Appx. 820, 824-25 (3d Cir. 2003) (“the mere memorialization of a claimant's subjective statements in a medical report does not elevate those statements to a medical opinion.”). The ALJ has reviewed, and properly discounted these subjective reports of symptoms. As such, the presence of 17 these statements in the record does not overwhelm the evidence relied upon by the ALJ when she discounted Dr. Schwartz's opinion.
Plaintiff also cited to a September 1, 2017 treatment record from orthopedist Robert J. Bischoff, M.D. (Admin. Tr. 315). In that record, Dr. Bischoff wrote:
Deborah is a 50-year-old lady whom I have seen in the past for neck and shoulder pain. Of note, is that she did have an anterior cervical fusion performed by Dr. Schlegel in York at ¶ 5-C6 and C6-C7 in 2015. She has always had some persistent pain in her left shoulder since that time. When I last saw her in 2015, she had a repeat MRI of her cervical spine, postoperatively, and apparently the fusion was taking well with only a mild degree of foraminal stenosis noted at those levels on the left side. She was going to the Pain Clinic at that time, but no longer is.
Over the last 6 months, the symptoms of her shoulder have gotten worse. She fell in March and believes this may have aggravated it. The pain is mostly lateral. She has a hard time sleeping on this side. She has a hard time reaching overhead and behind her. You had sent her to physical therapy for about 3 weeks, but she did not really find this helpful.
Her past medical history is significant for fibromyalgia and hypothyroidism. The patient history form was reviewed by me in the office today.
On examination of her left shoulder, there is no obvious atrophy about the shoulder. There is no obvious deformity. She is nontender over the AC joint. She can actively forward flex and abduct to 150 degrees. She can externally rotate 50 degrees and internally rotate to L3. She does have a positive Hawkins test and positive impingement sign. Her cuff strength is roughly 4/5, but she guards. X-rays from the hospital a couple of months ago did not show any obvious bony pathology.18 (Admin. Tr. 315-16). Dr. Bischoff assessed that the pain could be rotator cuff related and ordered an MRI. On September 13, 2017, Plaintiff had a left shoulder MRI. (Admin. Tr. 319). After reviewing the MRI, Dr. Bischoff noted that:
There is tendinosis noted of the supraspinatus tendon and perhaps some longitudinal partial thickness tearing, but I cannot see any evidence of a full-thickness tear or evidence of a high-grade partial-thickness tear. No. other obvious pathology was noted.(Admin. Tr. 314). Dr. Bischoff assessed that there may be an “element of impingement” in the left shoulder and perhaps a partial thickness rotator cuff tendon tear. Id. Plaintiff received an injection for the pain. Id. In December 2017, Plaintiff reported that the injection helped and that she only gets “an occasional soreness down the lateral side of her upper arm.” (Admin. Tr. 317). During the examination, Plaintiff was observed to have close to a full active forward flexion and external rotation. She can internally rotate to L1. Cuff strength is 5-/5. Negative impingement sign and negative Hawkins test. She has no localized tenderness about the shoulder girdle.” Id. I am not persuaded that the evidence related to Plaintiff's left shoulder injury is inconsistent with the ALJ's decision. Although Plaintiff did have a positive Hawkins test (a test to help diagnose shoulder impingement) during one examination, the record suggests that when Plaintiff's pain improved she had negative Hawkins tests. This record does not undermine the ALJ's decision. 19
Plaintiff also cites to one treatment record, dated January 8, 2018, where Plaintiff exhibited tenderness to palpation in her elbows, shoulders, and hips, and a positive phalen's sign (a test used in the diagnosis of carpal tunnel syndrome). (Admin. Tr. 326). Despite the tenderness observed, the same treatment record suggests that Plaintiff had a full range of motion and no swelling in her elbows, shoulders, hips or hands. Id. I am not persuaded that tenderness alone is inconsistent with the ALJ's evaluation of Dr. Schwartz's opinion. Despite the tenderness noted in this one treatment record, Plaintiff had no deficits in strength or limitation in her range of motion. This record does not undermine the ALJ's conclusion.
Accordingly, I am not persuaded that remand is required for further evaluation of the medical opinion evidence based on the seven records cited by Plaintiff.
2. Whether the ALJ Was Required to Credit Plaintiff's Unsubstantiated Reports of Pain Based on a Fibromyalgia Diagnosis
Plaintiff argues:
Second, the ALJ remarked that Dr. Schwartz's opinion was inconsistent with the normal clinical findings such as normal strength, normal sensation, etc. (Tr. 24) But fibromyalgia can form the basis for a disability claim, even in the absence of objective findings. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) ([Fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia.);20
Watkins v. Colvin, 3:16-CV-367, 2016 WL 4679015, at *8 (M.D. Pa. Sept. 7, 2016).(Doc. 15, p. 8).
The Commissioner did not directly respond to this argument.
To the extent Plaintiff argues that fibromyalgia can form the basis for a disability, no one appears to dispute this point. In this case, however, Plaintiff's fibromyalgia was found to be non-medically determinable at step two. (Admin. Tr. 13-14). As such, I am not persuaded that remand is required because the ALJ failed to account for limitations caused by a non-medically determinable impairment.
3. Whether the ALJ was Required to Recontact Dr. Schwartz
Plaintiff argues:
Lastly, if the ALJ needed to know the basis of Dr. Schwartz['s] opinion, the ALJ should have, logically, contacted him or asked Plaintiff's attorney to obtain a clarification regarding her opinion. See SSR 16-3p (“we may obtain additional information from the individual about the nature of his or her symptoms and their effect on functioning. . ..... We may request clarifying information form an individual's medical sources . . .”).(Doc. 15, pp. 8-9).
In response, the Commissioner argues:
Finally, there is no merit to Plaintiff's argument that the ALJ should have recontacted Dr. Schwartz (Pl.'s Br. at 8). The regulations give the ALJ discretion in determining whether to re-contact a physician, and that discretion is in play only if there is insufficient evidence in the record to determine whether the claimant is disabled (which was not the case here). See 20 C.F.R. § 404.1520b(b). The regulations do not require an ALJ to re-contact a physician when the opinion is “insufficient” because it is unsupported or lacking information. For21
the reasons discussed above, the Court should reject Plaintiff's argument.(Doc. 20, p. 23).
The regulations on this subject explain that, after the ALJ reviews all of the evidence, he or she makes findings about what that evidence shows. 20 C.F.R. § 404.1520b. If the ALJ cannot make a determination because the evidence in the record is incomplete or inconsistent the ALJ may take the following actions:
(1) If any of the evidence in your case record, including any medical opinion(s) and prior administrative medical findings, is inconsistent, we will consider the relevant evidence and see if we can determine whether you are disabled based on the evidence we have.
(2) If the evidence is consistent but we have insufficient evidence to determine whether you are disabled, or if after considering the evidence we determine we cannot reach a conclusion about whether you are disabled, we will determine the best way to resolve the inconsistency or insufficiency. The action(s) we take will depend on the nature of the inconsistency or insufficiency. We will try to resolve the inconsistency or insufficiency by taking any one or more of the actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this section. We might not take all of the actions listed below. We will consider any additional evidence we receive together with the evidence we already have.
(i) We may recontact your medical source. We may choose not to seek additional evidence or clarification from a medical source if we know from experience that the source either cannot or will not provide the necessary evidence. If we obtain medical evidence over the telephone, we will send the telephone report to the source for review, signature, and return;
(ii) We may request additional existing evidence;
(iii) We may ask you to undergo a consultative examination at our expense (see §§ 416.917 through 416.919a); or22
(iv) We may ask you or others for more information.
(3) When there are inconsistencies in the evidence that we cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether you are disabled, we will make a determination or decision based on the evidence we have.20 C.F.R. § 404.1520b(b). The evidentiary record in this case includes over 800 pages, more than 500 of those pages are medical records. It also includes five medical opinions by four different sources (Dr. Weitzner, Dr. Henderson, Dr. Tardibuono, and Dr. Schwarz), and statements by Plaintiff and her mother about her limitations and day-to-day functioning. Although this evidence undoubtedly contains inconsistencies, the ALJ's decision to discount Dr. Schwartz's opinion about Plaintiff's physical limitations, without more, does not suggest that the record as a whole is not sufficient. Because the record as a whole was sufficient for the ALJ to reach a conclusion, remand is not required. See Grier v. Berryhill, No. 18-386, 2019 WL 2870728, at *10 (D. Del. July 3, 2019) (citing Campbell v. Colvin, 2016 WL 4503341, at *3 (W.D. Pa. Aug. 29, 2016) (“An ALJ may only consider recontacting a treating physician, where the evidence is consistent but there is insufficient evidence to determine whether a claimant is disabled or after weighing the evidence the ALJ cannot reach a conclusion about whether a claimant is disabled. The ALJ, however, is not obligated to do so.”)). Accordingly, I am not persuaded that remand is required so that the ALJ can recontact Dr. Schwartz. 23
C. Whether the ALJ's Evaluation of Plaintiff's Mental Impairments Is Not Supported by Substantial Evidence Because the ALJ Discounted All Medical Opinions About Plaintiff's Mental limitations
On March 14, 2018, consultative examiner John Tardibuono, ED.D. examined Plaintiff and completed a check-box medical source statement about her mental limitations. During that examination, Plaintiff reported that her only prior treatment with a mental health professional was family counseling subsequent to a divorce. (Admin. Tr. 548). During the examination, Dr. Tardibuono observed that Plaintiff's affect was depressed and anxious, and her mood was depressed. (Admin. Tr. 550). Based on clinical testing, Dr. Tardibuono assessed that Plaintiff's attention and concentration were “mildly impaired” because Plaintiff was unable to complete either serial 3s or serial 7s. Id. Dr. Tardibuono assessed that Plaintiff's recent and remote memory was “fair” because Plaintiff was able to recall 3 objects immediately and 2 of 3 after five minutes, and repeated 5 digits forward and 3 reversed. Id. Plaintiff's cognitive functioning was estimated to be within the below average to average range with general fund of information appropriate to experience. Id. Plaintiff's insight was poor, and her judgment was good. Id. Dr. Tardibuono diagnosed Plaintiff with major depressive disorder (severe), unspecified anxiety disorder, and posttraumatic stress disorder (provisional). (Admin. Tr. 551). 24
In the medical source statement, Dr. Tardibuono was asked to rate Plaintiff's ability to perform certain activities based on the following scale: none; mild (functioning is slightly limited); moderate (functioning is fair); marked (functioning is seriously limited); and extreme (unable to function). (Admin. Tr. 552-554). Dr. Tardibuono assessed that Plaintiff would have “marked to moderate” limitations: carrying out complex instructions; remembering complex instructions; and responding appropriately to usual work situations and to changes in a routine work setting. Id. Dr. Tardibuono assessed that Plaintiff would have “mild to moderate” difficulty: remembering simple instructions; carrying out simple instructions (moderate limitation); and interacting appropriately with coworkers. Id. Dr. Tardibuono assessed that Plaintiff would have “mild” difficulty: making judgments on simple or complex work-related decisions; understanding complex instructions; interacting appropriately with the public; and interacting with supervisors. Id. He assessed that Plaintiff would have no difficulty understanding simple instructions. Id.
The RFC in this case limits Plaintiff to occupations that include no more than simple tasks, occasional (from 1/3 of the time to very little) changes, and occasional interaction with coworkers. (Admin. Tr. 16).
In her decision, the ALJ found that Dr. Tardibuono's opinion was “not persuasive.” In doing so the ALJ explained:
I have found not persuasive the March 14, 2018 assessment of John Tardibuono, D. Ed., the consultative medical statues examiner25
findings that the claimant has no limitations in understanding simple instructions, mild to moderate limitations in remembering simple instructions, moderate limitations in carrying out simple instructions, mild limitations in making judgments on simple work-related decisions, mild limitations in understanding complex instructions, moderate to marked limitations in remembering complex instructions and carrying out complex instructions, mild limitations in making judgments on complex work-related decisions, mild limitations in interacting appropriately with the public and supervisors, mild to moderate limitations in interacting appropriately with coworkers, and moderate to marked limitations in responding appropriately to usual work situations and to changes in a routine work setting (Ex. 6F), as it is not supported by or consistent with the rather benign objective findings or the treatment history. Moreover, it was based in large part on the subjective reporting of the claimant and was also based on a single examination of the claimant. The record as a whole simply does not support the degree of limitations found.(Admin. Tr. 24).
On March 26, 2018, state agency psychological consultant Karen Weitzner, Ph.D. completed a mental RFC assessment as part of the initial review of Plaintiff's application for benefits. Dr. Weitzner assessed that Plaintiff had no understanding or memory limitations. Dr. Weitzner assessed that Plaintiff had the following sustained concentration and persistence limitation: moderately limited ability to carry out detailed instructions; moderately limited ability to maintain attention and concentration for extended periods. Dr. Weitzner noted that, despite these limitations Plaintiff “is able to complete simple tasks, make simple decision, attend work regularly.” (Admin. Tr. 93). Dr. Weitzner assessed that Plaintiff had the following adaptive limitations: moderately limited ability to respond 26 appropriately to changes in the work setting. Id. At the conclusion of her assessment, Dr. Weitzner provided the following explanation:
Claimant is diagnosed with a depressive disorder and anxiety disorder. She does not participate in any psychiatric treatment. She is prescribed psychotropic medication by her physician. No. history of any psychiatric treatment. Claimant reports moderate symptoms of both depression and anxiety. She reports passive suicidal ideation. Claimant attended a CE. Thinking was clear and goal directed, no perceptual disturbance. MSE was intact overall with intact cognitive functioning. Claimant reports some concentration limitations and limited motivation. Her ability to complete daily tasks is not limited by her MH disorder. Claimant can drive, shop, manage money, sews, reads, engages with her family. She is socially withdrawn and does not like to be around others. Claimant is appropriate in her interactions with others. Claimant is more readily distressed but can adapt to changes in routines and demands. Claimant's statements are partially consistent with the evidence of file. The Claimant is able to sustain simple tasks within a community setting.(Admin. Tr. 93-94).
The ALJ found Dr. Weitzner's opinion “somewhat persuasive.” In doing so the ALJ explained:
I have found somewhat persuasive the March 2016 assessment of the State agency psychological consultant finding that the claimant's mental impairments result in moderate limitations in understanding, remembering, and applying information, mild limitations interacting with others, moderate limitations in concentrating, persisting or maintaining pace, and moderate limitations in adapting or managing herself and that she is able to sustain simple tasks within a community setting (Ex. 1A), as it is generally consistent with the rather benign clinical findings relating to medical impairments and the lack of formal mental health treatment.(Admin. Tr. 23). 27
In January 2019, primary care physician, Dr. Schwartz, completed a checkbox medical source statement about Plaintiff's mental limitations. (Admin. Tr. 808-816). In his medical source statement, Dr. Schwartz listed Plaintiff's diagnoses as anxiety and depression. Id. Dr. Schwartz assessed that Plaintiff would be unable to satisfactorily perform (or have a marked limitation in) the following activities: remember work-like procedures; understand and remembering very short and simple instructions; maintain attention for a two-hour segment; maintain regular attendance and be punctual within customary, usually strict, tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; complete a normal workday and workweek without interruptions from psychologically based symptoms; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; responding appropriately to changes in a routine work setting; and deal with normal work stress. Id. Dr. Schwartz assessed that Plaintiff would have limited but satisfactory (moderate limitation) ability in the following areas: carrying out very short and simple instructions; make simple work-related decisions; perform at a consistent pace without an unreasonable number and length of rest periods; and be aware of normal hazards and take appropriate precautions. Id. In addition to these 28 limitations, Dr. Schwartz assessed that Plaintiff's productivity would be less than 80% as efficient than an average worker, and Plaintiff would be absent and/or unable to complete a workday four or more days per month. Id.
The ALJ found that Dr. Schwartz's opinion was “not persuasive.” In doing so, the ALJ explained:
This assessment is grossly out of proportion with the lack of any formal mental health treatment whatsoever. Moreover, the clinical findings as related to mental health are very benign and have repeatedly shown normal attention and concentration, normal memory, and do not document any significant difficulties interacting with others.(Admin. Tr. 25).
Plaintiff argues:
The ALJ discounted all opinion evidence in reaching Ms. Cerifko's mental RFC-The ALJ found the opinions of consulting psychologist Dr. Tardibuono and treating physician Dr. Schwartz to be not persuasive. (Tr. 24-25) “[R]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Maellaro v. Colvin, No. 3:12-CV-01560, 2014 WL 2770717, at *11 (M.D. Pa. June 18, 2014); citing Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986). In crafting an RFC according to which Ms. Cerifko could [sic] a limited range of light work (Tr. 739), the ALJ did not rely on any independent medical assessments that set forth comparable findings. Although the ALJ may have independently referred to other medical evidence in the record to establish the RFC, “an ALJ may not make speculative inferences from medical reports” and “is not free to set h[er] own expertise against that of a physician who presents competent evidence.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985). The ALJ failed to explain how, given the available evidence, she included the functional restrictions that she chose to include in her assessment of Ms. Cerifko's RFC. The ALJ's rejection of the only29
medical opinion created an evidentiary deficit. Knier v. Berryhill, No. 3:16-CV-457 (M.D. Pa. Jul. 5, 2017); Suide v. Astrue, 371 Fed.Appx. 684, 689-90 (7th Cir. 2010) remanding where ALJ created an evidentiary deficit when the ALJ rejected treating physician's opinion and then made an RFC determination without supporting medical evidence). The ALJ did not obtain evidence to fill this evidentiary void; for example, the ALJ could have sent interrogatories to one of the Agency physicians to obtain a supported opinion assessing Ms. Cerifko's functional capacity based on the entirety of the record. Thus, the ALJ committed reversible error when she failed to point to evidence that supported her RFC determination. Suide, 371 Fed.Appx. at 690.(Doc. 15, pp. 10-11).
In response, the Commissioner argues:
Plaintiff's next argument, that substantial evidence does not support the ALJ's mental RFC assessment, is equally unconvincing (Pl.'s Br. at 9-11). Plaintiff received no specialized mental health treatment during the relevant period. The ALJ found Dr. Schwartz's Mental Impairment Questionnaire identifying mostly marked limitations, and Dr. Tardibuono's opinion of mild to marked limitations, unpersuasive (Tr. 552-53, 814-15). See 20 C.F.R. § 404.1520c(b)(2). She explained their opinions were not supported by or consistent with Plaintiff's treatment history or the rather benign objective findings regarding her memory, attention, concentration, and the lack of evidence she had any difficulty interacting with others. (Tr. 24-25, 536, 549-50, 705, 824). She found state agency psychologist Dr. Weitzner's opinion somewhat persuasive, noting it was generally consistent with the rather benign clinical findings relating to mental impairments and the lack of any formal mental health treatment (Tr. 23). Despite the lack of significant abnormalities relating to Plaintiff's mental status, the ALJ very generously concluded that Plaintiff was limited to understanding, remembering, and carrying out simple instructions; could not perform jobs that require adherence to precise limits, tolerances, and standards, directing the activities of others, and influencing the opinions of others; could not perform pace work; could have only occasional changes in the work setting, processes, or30
tools; and could have no more than occasional interaction with others (Tr. 16).
The crux of Plaintiff's argument is that the ALJ discounted all of the opinion evidence in reaching Plaintiff's mental RFC, implying that the ALJ needed a matching opinion created an “evidentiary deficit” (Pl.'s Br. at 10-11). Plaintiff is incorrect. The Third Circuit Court of Appeals confirmed in Chandler, 667 F.3d at 361, that the ALJ “is not precluded from reaching RFC determinations without outside medical expert review of each fact incorporated into the decision.” Id. (emphasis added).
As this Court explained in Foux v. Saul, NO. 3:17-CV-1476, 2021 WL 1207720, at *2, -- F.Supp.3d - (M.D. Pa. Mar. 30, 2021) (Mariani, J.) (citations omitted), “Defendant is correct that the RFC assessment is the exclusive province of the ALJ and not the province of treating physicians or other medical providers. Defendant is also correct that an ALJ is not required to seek a separate expert medical opinion to carry out his duty to assess a claimant's RFC.” Id.; see also Myers v. Berryhill, 373 F.Supp.3d 528, 538 (M.D. Pa. 2019) (“Nothing in the Social Security Act or governing regulations requires the ALJ to obtain matching ‘opinion' evidence in order to fashion a claimant's RFC.”).
Moreover, “[t]here is a critical difference between cases where an ALJ [] finds that a claimant is not disabled when all of the medical opinions indicate that the claimant is disabled and cases where the ALJ assesses the RFC that falls between competing opinions.” Deitrich v. Saul, 501 F.Supp.3d 283, 290 (M.D. Pa. 2020). Indeed, although the ALJ determined that state agency psychologist Dr. Weitzner's findings were “somewhat persuasive, ” she did so in her favor by finding Plaintiff even more limited and assigning additional limitations (Tr. 16, 23).
And notably, when promulgating the new regulations, the agency disagreed with a proposal that would have effectively required ALJs to “adopt the opinions of either a treating physician or a consultative examiner to determine if the claimant meets our statutory definition of disability.” 82 Fed.Reg. 5844-01, at 5856 (Jan 18, 2017). Instead, the RFC finding is the ALJ's to make, see 20 C.F.R. § 404.1546(c), and31
the ALJ cannot “defer . . . to any medical opinion(s) or prior administrative medical finding(s).” Id. at § 404.1520c(a).
Consistent with the regulatory scheme, the ALJ assessed Plaintiff's RFC in light of the medical and other evidence, as well as the competing medical source opinions. This was entirely proper. The Court should reject Plaintiff's argument.(Doc. 20, pp. 24-27).
There is no dispute that it is the ALJ's duty to assess a claimant's RFC. 20 C.F.R. § 404.1546(c). Further, the Commissioner's regulations and Third Circuit caselaw are clear that an ALJ must consider more than just medical opinions when evaluating a claimant's RFC. 20 C.F.R. § 404.1545(a)(3) (“We will assess your residual functional capacity based on all of the relevant medical and other evidence.”); 20 C.F.R. § 404.1512(b) (explaining that “evidence” is “anything you or anyone else submits to us or that we obtain that relates to your claim.”); Burnett v. Comm'r of Soc. Sec. , 220 F.3d 112, 121 (3d Cir. 2000) (“In making a residual functional capacity determination, the ALJ must consider all evidence before him.”). Although objective medical evidence and treatment records are relevant to an ALJ's RFC assessment and, if they include findings about a claimant's functional abilities may be sufficient to support specific findings in an RFC assessment on their own, as a practical matter such documents do not always contain this information. Thus, the reality in Social Security cases is that “[r]arely can a decision be made regarding a claimant's residual functional capacity without 32 an assessment from a physician regarding the functional abilities of the claimant.” McKean v. Colvin, 150 F.Supp.3d 406, 418 (M.D. Pa. 2015).
As this Court has explained:
It is well established that an ALJ “is not free to set his own expertise against that of a physician who presents competent evidence. Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985). In cases where the ALJ does not give any significant or great weight to any medical opinion, the Court has found that the ALJ “seemingly interpreted the medical evidence of record, and substituted her own opinion for that of a medical one in arriving at [a] Plaintiff's RFC.” McKay v. Colvin, No. 3:14-CV-2020, 2015 WL 5124119, *17 (M.D. Pa. Aug. 13, 2015). McKean is particularly on point in this matter, as there the Court found the ALJ's RFC not supported by substantial evidence where the ALJ dismissed the only medical opinion in the record rendered in regard to the claimant's physical limitations. See McKean, 150 F.Supp.3d at 418.Decker v. Berryhill, No. 1:17-cv-00945, 2018 WL 4189662 at *6 (M.D. Pa. June 8, 2018) report and recommendation adopted 2018 WL 4184304 (M.D. Pa. Aug. 31, 2018).
“It is not error in and of itself to disagree with the opinion of a medical professional.” Id. An RFC assessment, however, is not supported by substantial evidence where an ALJ assesses a lesser degree of limitation than found by any medical professional without citing to another type of evidence that supports his or her assessment. Id. (listing cases).
In her argument, Plaintiff suggests that the only two medical opinions about Plaintiff's mental impairments were discounted. This argument appears to 33 overlook a third opinion by state agency psychological consultant Karen Weitzner which was found “somewhat persuasive.” Ultimately, the mental limitations set forth in the RFC assessment fall somewhere between Dr. Weitzner's assessment and Dr. Dr. Tardibuono's assessment. There is a critical difference between cases where an ALJ finds that a claimant is not disabled when all of the medical opinions indicate he or she is disabled, and in cases where the ALJ's RFC assessment falls between competing opinions. See Deitrich v. Saul, 501 F.Supp.3d 283, 291 (M.D. Pa. 2020). This difference is critical here. Given the lack of any mental health treatment or counseling, coupled with a medical opinion that supports the RFC assessment, I find that the ALJ's evaluation of Plaintiff's mental limitations is supported by substantial evidence.
D. Whether the ALJ Improperly Discounted Plaintiff's Statements About the Intensity of Her Pain
The Commissioner's regulations define “symptoms” as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502(i). 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. 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 34 RFC assessment. Rutherford, 399 F.3d at 554. 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 there is no medically determinable impairment that 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 16-3p, 2016 WL 1119029.
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 objective medical evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4). However, an ALJ will not reject statements about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3). Instead, the ALJ will evaluate the extent to which any unsubstantiated symptoms can be credited based on the following factors: the 35 claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates 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.
The ALJ noted in her decision that Plaintiff testified that:
The biggest thing that affects her ability to work is being in constant pain and terrible headaches. She said she has pain constantly in the neck, both shoulders down the arms, elbows, hands, both hips, both36
legs (worse on the left side), and that the ankles swell and the bottom on the feet hurt but the left foot is worse.(Admin. Tr. 18). Plaintiff appears to attribute at least some of this pain to fibromyalgia-an impairment that was found to be not medically determinable. This leaves Plaintiff's migraine headaches and cervical (neck) impairments, and inflammatory bowel arthritis as the primary pain-causing impairments at issue. Plaintiff testified that her pain is usually a 7 or 8 out of 10 on a regular basis, and that there are times it is a 10 plus. (Admin. Tr. 61). She reported that there are times where she sits in tears because the pain is so bad, and no matter what she takes the pain does not go away. Id. The ALJ provided a thorough summary of Plaintiff's statements about her symptoms and activities of daily living, (Admin. Tr. 17-19), and of Plaintiff's treatment history (including objective tests, and laboratory findings), (Admin. Tr. 20-23). After reviewing this evidence, the ALJ concluded that Plaintiff's statements about her pain are not entirely consistent with the medical evidence and other evidence in the record. (Admin. Tr. 19).
Plaintiff argues that this finding is improper for two reasons: (1) SSR 16-3p prohibits and ALJ from finding a claimant's statements inconsistent with a course of treatment unless the ALJ asks questions about this issue during the administrative hearing; and (2) an ALJ is not permitted to discount a claimant's statements about his or her symptoms based only on objective findings. 37
1. Whether the ALJ's Characterization of Plaintiff's Recent Treatment as “Conservative” is Inaccurate
In her brief, Plaintiff notes that, on page 19 of the decision, the ALJ inaccurately characterized Plaintiff's treatment as “conservative.” That paragraph has been reproduced below:
As for the statements of the claimant and Eva J. Uhler, the claimant's mother (Ex. 3E), about the intensity, persistence, and limiting effects of the claimant's symptoms, they are inconsistent with the relatively benign clinical and laboratory signs and findings of record and the treatment history. In terms of recent treatment, it is conservative in nature. The claimant has required no recent intensive/extensive treatment such as frequent/repeated emergency room visits, inpatient hospitalization, partial hospitalization, repeated surgical intervention, or any other form of intensive outpatient treatment (Exs. 1F-18F, 20F-22F, and 24F-27F).(Admin. Tr. 19).
Plaintiff argues:
First, the ALJ noted that Ms. Cerifko's treatment was conservative in nature. (Tr. 19) But the Commissioner's Rulings require an ALJ to question a claimant about her treatment motivations/decisions before drawing a negative inference about a claimant's subjective allegations based on a claimant's failure to aggressively pursue treatment. See SSR 16-3p. However, here the ALJ failed to adequately question Ms. Cerifko about her treatment modalities.(Doc. 15, p. 11). Plaintiff objects to the ALJ's statement, not because it is not supported by the record, but because it is her position that the ALJ is required to question a claimant about her treatment motivations and decisions before characterizing it as conservative pursuant to SSR 16-3p. 38
SSR 16-3p provides, in relevant part that:
We will consider an individual's attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed when evaluating whether symptoms intensity and persistence affect the ability to perform work-related activities for an adult or the ability to function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI claim. Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.
In contrast, if the frequency or extent of treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints. When we consider an individual's treatment history, we may consider (but are not limited to) one or more of the following:
● An individual may have structured his or her activities to minimize symptoms to a tolerable level by avoiding physical activities or mental stressors that aggravate his or her symptoms.
● An individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau.
● An individual may not agree to take prescription medications because the side effects are less tolerable than the symptoms.39
● An individual may not be able to afford treatment and may not have access to free or low-cost medical services.
● A medical source may have advised the individual that there is no further effective treatment to prescribe or recommended that would benefit the individual.
● An individual's symptoms may not be severe enough to prompt him to seek treatment, or the symptoms may be relieved with over the counter medications.
● An individual's religious beliefs may prohibit prescribed treatment.
● Due to various limitations (such as language or mental limitations), and individual may not understand the appropriate treatment for or the need for consistent treatment of his or her impairment.
● Due to a mental impairment (for example, individuals with mental impairments that affect judgment, reality testing, or orientation), and individual may not be aware that he or she has a disorder that requires treatment.
● A child may disregard the level and frequency of treatment needed to maintain or improve functioning because it interferes with his or her participation in activities typical of other children his or her age without impairments.
The above examples illustrate possible reasons an individual may not have pursued treatment. However, we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case. We will review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects, and whether the evidence of record supports any of the individual's statements at the time he or she made them. We will explain how we considered the individual's reasons in our evaluation of the individual's symptoms.2017 WL 5180304 at *9-10 (emphasis added).
The Social Security Ruling suggests that an ALJ may “ask why [Plaintiff] has not complied with or sought treatment in a manner consistent with his or her complaints.” 2017 WL 5180304 at *9. Thus, Plaintiff is incorrect that this ruling 40 imposes a requirement that the ALJ ask a Plaintiff about his or her treatment before characterizing it as “conservative.” Furthermore, the ALJ in this case also did question Plaintiff about her treatment for pain during the administrative hearing. Plaintiff testified that she took prescribed medication (Imitrex, Topamax, Tramadol), Tylenol, Advil, Tylenol arthritis, uses pain creams, takes Epsom salt baths, uses a heating pad (on her neck), uses a TENS unit, got a Daith piercing (for migraines), and gets Botox injections (for migraines). (Admin. Tr. 62-65). Plaintiff has not explained why this discussion was inadequate or cite to any authority that supports her position that additional development of this issue is necessary. See L.R. 83.40.4(c) (explaining that each contention in the “argument” section of
Plaintiff's brief “must be supported by specific reference to the portion of the record relied upon and by citations to statutes, regulations and cases supporting plaintiff's position.”). Accordingly, I am not persuaded that remand is required because the ALJ did not ask more questions about Plaintiff's treatment decisions.
2. Whether the ALJ Improperly Disregarded Plaintiff's Statements About Her Pain Based Only On Benign Clinical and Laboratory Signs and Findings
Plaintiff argues:
Second, the ALJ remarked that the record contained benign clinical and laboratory signs and findings. (Tr. 23) But testimony of severe pain cannot be disregarded simply because it is not supported by objective medical evidence. The Agency acknowledges that pain is subjective and cannot be measured by testing or imaging, and41
therefore other factors must be evaluated to determine the severity of pain and the extent to which it limits a claimant's ability to work . . . .(Doc. 20, pp. 11-12). Plaintiff's argument is construed as an allegation that the ALJ improperly evaluated Plaintiff's statements under the second step of the analysis outlined in 20 C.F.R. § 404.1529. 20 C.F.R. § 404.1529(c)(2) provides that an ALJ “will not reject [a claimant's] statements about the intensity and persistence of [the claimant's] pain or other symptoms or about the effect [the claimant's] symptoms have on [the claimant's] ability to work solely because the available objective medical evidence does not substantiate [the claimant's] statements.” Where, as here, and ALJ concludes that the debilitating pain reported by Plaintiff is not substantiated by the record, the ALJ considered the lack of objective support, highlighted inconsistencies between statements made by Plaintiff to her physicians when compared to her hearing testimony, considered Plaintiff's daily activities, and considered Plaintiff's treatment history. Thus, Plaintiff's argument that the regulation and ruling were not followed lacks merit.
Plaintiff does not develop any argument that the ALJ mischaracterized or omitted evidence that would have been relevant under one of the 20 C.F.R. § 404.1529(c)(3) factors, and absent such development the court is not inclined to address the issue sua sponte. 42
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for relief be DENIED as follows:
(1) The final decision of the Commissioner should be AFFIRMED.
(2) Final judgment should be issued in favor of the Commissioner of Social Security.
(3) The clerk of court should close this case. 43
NOTICE OF 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. 44