Opinion
Civil Action 3:18-cv-01486
08-23-2019
VIRGINIA ANN FOX, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security,[1] Defendant.
MANNION, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
Plaintiff, Virginia Ann Fox, is seeking judicial review of the final decision of the Commissioner of Social Security (ACommissioner@) denying her claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is conferred on the Court pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).
The matter has been referred to the undersigned United States 1 Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we have found that the final decision of the ALJ's decision is supported by substantial evidence. Accordingly, it is recommended that the final decision denying Fox's claims for benefits be AFFIRMED, and that Fox's request for a new hearing or award of benefits be DENIED.
I. Background and Procedural History
Fox is an adult individual, born on June 21, 1966. On July 21, 2014, Fox protectively filed her application for benefits under Title II of the Social Security Act, and on July 20, 2014, Fox protectively filed her application for benefits under Title XVI of the Social Security Act. In both applications, she alleged that she became disabled on March 1, 2010. (Tr. 16). Fox later amended her alleged onset date at the administration hearing to April 18, 2015. (Tr. 16). Fox's alleged impairments included: osteoarthrosis, lumbar and cervical spine degenerative disc disease with cervicalgia, fibromyalgia, obesity, irritable bowel syndrome, migraines, vision problems, thyroid condition, dental pain, hyperlipidemia, foot spurs, shoulder impairment, and hypertension. (Tr. 19). She alleged that 2 these impairments became completely disabling on April 18, 2015. Her claims were initially denied on April 28, 2015. On November 24, 2015, Fox filed a written request for an administrative hearing. Her request was granted. On May 10, 2017, Fox appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Melissa Hammock in Harrisburg, Pennsylvania. Plaintiff was represented by her attorney, Stephen J. Hogg, Esquire. Additionally, impartial Vocational Expert (“VE”) Martin A. Kranitz also appeared and testified at the hearing by telephone. (Tr. 60).
On July 26, 2017, the ALJ issued an unfavorable decision in which she concluded that, considering Fox's age, education, work experience, and residual functional capacity, there are jobs that she can perform that exist in significant numbers in the national economy. On October 3, 2017, Fox sought further review of her claims by the Appeals Council, but her request was denied on June 29, 2018. This makes the July 2017 decision the final decision subject to judicial review by this Court.
Fox filed a timely complaint on July 26, 2018 in this Court. (Doc. 1). In her complaint, Fox alleges that the decision is not in accordance with the law and is not supported by substantial evidence. (Doc 1, at 2). On 3 October 26, 2018, the Commissioner timely filed her answer to the complaint and maintained that the decision that Fox is not entitled to disability insurance benefits or supplemental security income is correct and in accordance with the law and regulations. In addition, the Commissioner further answered by stating her findings of fact are supported by substantial evidence. (Doc. 9.)
This matter has been fully briefed by the parties and is ripe for decision. (Docs. 14, 18, and 19).
II. Statement of Facts
Fox completed a high school education and obtained an associate's degree in medical assisting. (Tr. 67). Fox previously worked as a patient advocate in registration and as a medical assistant/medical receptionist. (Tr. 386). She stated that she has not worked since 2010. (Tr. 67).
Fox stated that among other things her primary diagnosis of fibromyalgia affects her ability to work. She stated that her fibromyalgia causes nausea, general weakness, headaches and pain in her joints. She stated that it also affects her ability to remember. (Tr. 69). Fox also stated that over the years, her pain continues to increase. (Tr. 69). Fox explained that increased physical activity aggravates her symptoms. (Tr. 71). Fox 4 testified that she was taking gabapentin, plaquenil, and tramadol for the pain. (Tr. 70).
Fox lives with her son in Carlisle, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 64). Fox stated that she lives in an apartment on the first floor which has a ramp and does not require her to use any stairs. (Tr. 64). Prior to living in her current apartment, Fox was homeless. Fox stated she is supported by assistance programs and received food stamps. (Tr. 65). Fox stated that with the assistance of these programs her rent and electric bill are provided for along with some personal hygiene and paper products.
Fox stated she has not received any workers compensation benefits since April 2015. Fox has a driver's license, but drives very seldom because she does not have a vehicle. (Tr. 66). She stated her father typically drives her where she needs to go and there is public transportation in her area, but she does not use it. (Tr. 66). She also stated that both modes of transportation are, at times, unreliable. (Tr. 66). Fox also explained that due to her inability to keep her legs in the same position for long periods of time, she is only capable of driving for short periods. (Tr. 85). Fox stated that most days she stays home and 5 watches television, unless she has an appointment or needs to go to the store. (Tr. 79). She stated that since 2015, she has used the assistance of a powered scooter when going to the grocery store. (Tr. 80).
Fox stated that on rare occasions she babysat school-age children. She stated she was able to watch them so long as she did not have to lift them. (Tr. 74).
Fox stated she is able to do household chores in moderation with breaks, and she is able to prepare simple meals, but her son does the majority of the household chores. (Tr. 72, 81).
Fox stated that her prior hobbies included cooking and gardening. She stated that she spends the majority of her day lying down in a recliner. (Tr. 84). Fox enjoys listening to audio books, and checking her facebook account daily. (Tr. 95).
She stated that she puts items on the seat of her walker when moving around the house to prevent them from falling. She also stated that she would be unable to carry a heavy dish, because she does not trust her arms. (Tr. 87). She stated that she has difficulty carrying things especially on her left side due to shoulder pain. (Tr. 88). She stated she has trouble bending over to pick up items. (Tr. 89). She stated that doing 6 her hair is very difficult because it makes her arms feel heavy and weak. (Tr. 89).
Fox stated she is being treated by Brian Long, M.D., of The Stevens Center for depression and anxiety. (Tr. 74). She stated that she is seeking a prescription for a support animal to help her both emotionally and physically. She stated the support animal would help her pick up items and support her during anxiety attacks. Fox stated the anxiety attacks happen anywhere from once or twice a week. (Tr. 94).
Fox stated she has trouble sleeping at night due to her racing thoughts and her inability to get comfortable. (Tr. 94).
Fox reported taking lipitor, levothyroxine, loratadine, prilosec, losartan, carvedilol, furosemide, spironolactone, tramadol, zoloft, buspar, and ambien. (Tr. 263). She stated that when her medication is effective it takes the edge off of the pain. (Tr. 90).
III. Standard of Review
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); id. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); 7 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 (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). In an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not 8 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 [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); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues ”).
To receive disability benefits, 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); id. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); id. § 416.905(a). To satisfy this requirement, a claimant must have a severe 9 physical or mental impairment that makes it impossible to do her or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); id. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); id. § 416.905(a).
A “physical or mental impairment” is 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); id. § 1382c(a)(3)(D).
“Substantial gainful activity” is work that (1) involves performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510; id. § 416.910.
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a); id. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering her or her residual functional capacity 10 (“RFC”); and (5) whether the claimant is able to do any other work, considering her or her RFC, age, education, and work experience. Id. § 404.1520(a); id. § 416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); id. § 1382c(a)(3)(H)(i); 20 C.F.R. § 404.1512; id. § 416.912; Mason, 994 F.2d at 1064. Once the claimant has established at step four that he or she cannot do past relevant work, the burden then 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 her or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); id. § 416.912(f); Mason, 994 F.2d at 1064. 11
An extensive list of impairments that warrant a finding of disability based solely on medical criteria, without considering vocational criteria, is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
“Residual functional capacity” is the most a claimant can do in a work setting despite the physical and mental limitations of his or her impairment(s) and any related symptoms (e.g., pain). 20 C.F.R. § 404.1545(a)(1); id. § 416.945(a)(1). In assessing a claimant's RFC, the Commissioner considers all medically determinable impairments, including those that are not severe. Id. § 404.1545(a)(2); id. § 416.945(a)(2).
III. Discussion:
A. The ALJ's decision denying Fox's claim for disability
In her July 27, 2017, written decision denying Fox's claims, the ALJ found that Fox met the insured status requirements of the Social Security Act through September 30, 2015. (Tr. 19). At step one, the ALJ found that Fox had not engaged in substantial gainful activity since April 18, 2015, the alleged onset date. (Tr. 19). At step two, the ALJ found that Fox had the following severe impairments: osteoarthritis, lumbar and cervical spine degenerative disc disease with cervicalgia, fibromyalgia, and obesity. (Tr. 19). At step three, the ALJ found that Fox did not did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart, Appendix 1. (Tr. 22).
Before continuing to steps four and five of the sequential evaluation process, the ALJ assessed Fox's RFC. In making this determination, the ALJ is required to assess all the symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the object medical evidence and other evidence, based on requirements of 20 C.F.R. §§ 404.1529 and 416.929 and Social Security Rulings 96-4p and 16-3p. 12 The ALJ also considered the opinion evidence of record in accordance with the mandates of 20 C.F.R. §§ 404.1527 and 416.927.
After evaluating the evidence of the record, the ALJ found that Fox had the residual functional capacity to:
Lift, carry, push, pull up to 20 pounds occasionally; stand and/or walk 6 hours in an 8-hour day; sit 6 hours in an 8-hour day; alternate between a sitting and standing position at will; occasionally climb ramps, stairs, ladders, ropes or scaffolds; occasionally balance or stoop; never kneel, crouch, or crawl; occasional unprotected heights, moving mechanical parts, and temperature extreme, and occasionally operate a motor vehicle.(Tr. 23).
In considering Fox's symptoms the ALJ followed a two-step process in which in which it must first be determined whether there is an underlying medically determinable physical or mental impairment or impairments, that could reasonably be expected to produce the claimant's symptoms. The second step, once an underlying physical or mental impairment or impairments which could reasonably be expected to produce the pain or other symptoms have been shown, the ALJ must evaluate the intensity persistence, and limiting effects of the claimant's functional limitations. 13
The ALJ considered Fox's testimony and all the evidence of the record and found that “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ...” (Tr. 24).
The ALJ's findings at steps four and five were based on Fox's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404, subpart P, Appendix 2.
At step four, the ALJ found that Fox is capable of performing past relevant work as an admissions clerk and/or medical receptionist. The ALJ found that this work would not be precluded by her RFC capacity. (Tr. 30). In making this determination, the ALJ assessed Fox's RFC with the physical and mental demands of her past work in accordance with the testimony of the vocational expert. (Tr. 30). In addition, the ALJ stated that although the claimant is capable of performing past relevant work, there are other jobs in the national economy which she is also able 14 to perform. The ALJ continued to step five with the alternative job findings. (Tr. 30).
At step five of the sequential process, the ALJ again relied upon VE Krantiz's testimony and concluded that Fox was capable of performing other work that existed in significant numbers in the national economy. The ALJ found that Fox could perform jobs available in the national economy, occupations including: inspector, DOT #713.687-022, with approximately 10, 000 positions available in the state and 200, 000 positions available nationally; inspector, timers, DOT #715.687.074, with 5, 000 positions available in the state and 120, 000 positions available nationally; data input clerk, DOT #209.687-010, with 200 positions available in the state and 5, 000 positions available nationally; and scheduler, DOT #221.587-038, with 3, 000 positions available in the state and 75, 000 positions available nationally. (Tr. 31).
The VE also listed alternative potential jobs which Fox could perform without consideration of transferable skills. The VE identified the following jobs: mail sorter, non-postal, DOT #209.687-026, with 3, 000 positions available in the state and 52, 000 positions available nationally; and cashier, DOT #211.462-010 with 18, 000 available in the state and 15 more than 1, 000, 000 available nationally. (Tr. 31). The VE also testified that he gave reduced numbers for all jobs based on the hypothetical and the option for alternating sitting and standing. (Tr. 31).
Based upon this information, the ALJ concluded that Fox could engage in work that existed in significant numbers in the national economy despite her medically determined impairments, and that she is therefore not disabled. (Tr. 32). We agree.
B. The ALJ's decision to discount opinions of treating physicians is supported by substantial evidence.
The Commissioner's regulations define medical opinions as Astatements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions.” 20 C.F.R. '' 404.1527(a)(1), 416.927(a)(1). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. ''404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. ''404.1527(c) and 416.927(c). ''The regulations provide progressively more rigorous tests 16 for weighing opinions as the ties between the source of the opinion and the individual become weaker.'' Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *2. Treating sources have the closest ties to the claimant, and therefore their opinions generally are entitled to more weight. See 20 C.F.R. ''404.1527(c)(2), 416.927(c)(2) (''Generally, we give more weight to opinions from your treating sources . . . ''); 20 C.F.R. ''404.1527(a)(2), 416.927(a)(2) (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. ''404.1527(c)(2), 416.927(c)(2).
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any noncontrolling medical opinions; length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support her or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the 17 source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. ''404.1527(c), 416.927(c).
Furthermore, as discussed above, it is beyond dispute that, in a social security disability case, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter, 642 F.2d at 704. The principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. ''404.1527(c)(2), 416.927(c)(2)(''We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.''). ''Where a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.''' Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
Sowmya Surapaneni, M.D.
Fox argues that the ALJ should have afforded controlling weight to the opinion of Fox's primary care physicians, Dr. Surapaneni and Dr. Sioma. It is the ALJ who has responsibility to evaluate medical opinions as the finder of fact, not a reviewing court. 20 C.F.R. §§ 404.1527, 18 416.927; Chandler v. Comm'r of Soc. Sec. 667 F.3d 356, 361 (3d Cir. 2009). ALJs are required by the controlling regulations to consider whether a treating physician's opinion is supported and consistent with the record as a whole. The ALJ is not required to accept a treating physician's opinion uncritically, particularly when the opinion is not supported by clinical evidence, is internally inconsistent, or is not consistent with other record evidence. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
On February 1, 2017, Dr. Surapaneni indicated that Fox can occasionally lift 20 pounds and carry 10 pounds; stand thirty minutes in an eight-hour day; sit for four to six hours in an eight-hour workday; stand for thirty to sixty minutes in an eight-hour work day; walk for thirty to sixty minutes in an eight-hour day; frequently use hands for reaching, handling, fingering, and feeling but never to push or pull; and occasionally use foot controls. (Tr. 390-393). Fox could occasionally climb stairs and ramps, climb ladders or scaffolds, balance, and stoop, but never kneel, crouch, or crawl. (Tr. 395). A checkbox was marked that Fox was able to care for her personal hygiene. Dr. Surapaneni indicated that Fox can walk a block at a reasonable pace on uneven surface and climb a few steps at a reasonable pace with the use of a single hand rail, but with 19 difficulty. (Tr. 392). Dr. Surapaneni further indicated that Fox “might have to walk for a couple of minutes every hour or so to prevent stiffness. In addition, Fox would have to change position frequently to get comfortable.” (Tr. 392).
The ALJ gave significant weight to the opinion of Dr. Surapaneni when determining the RFC of Fox. The ALJ explicitly required the VE to assess the potential jobs with the adjusted hypothetical to reduce from six hours of sitting or standing in an eight hour day to, two hours in an eight hour day. (Tr. 105). With the guidance of the limitations provided by Dr. Surapaneni, the ALJ adopted an RFC which permitted Fox to perform eight of the jobs identified by the VE.
Closely associated with the treating physician rule, the regulations require the ALJ to “always give good reasons in [the] notice of determination or decision for the weight” given to the claimant's treating source's opinion. 20 C.F.R. §§ 404.1527(c)(2) 416.927(c)(2). The Third Circuit Court of Appeals has long been concerned with ALJ opinions that fail to properly consider, discuss, and weigh relevant medical evidence. See Dobrowolsky v Califano, 606 F.2d 403, 406-07 (3d Cir. 1979). 20
Here, the ALJ explained that she gave significant weight to Dr. Surapaneni's opinions in conjunction with the review of all the medical evidence in determining the RFC of Fox. The ALJ found that while Dr. Surapaneni is the treating physician and some of Fox's limitations are reflected in the medical evidence, she had also considered the frequent unremarkable objective findings at visits with providers other than Dr. Surapaneni. (Tr. 27).
James D. Sioma, D.O.
Next, the plaintiff argues that the ALJ should not have discounted Dr. Sioma's opinion that Fox was disabled. The ALJ explained her rationale in giving the opinion little weight, noting Dr. Sioma's indication that the finding was done for Fox to receive food stamps. (Tr. 27). The ALJ noted that although Dr. Sioma is a treating provider, “the ultimate issue of disability is reserved to the Commissioner and also that the doctor's assessments do not identify specific limitations.” (Tr. 27). The ALJ further explained that she gave little weight to the May 2016 opinion because Dr. Sioma reported her spine to be normal with some weakening of the upper and lower extremities, and that report is not consistent with many of the other visits with Dr. Sioma from November 2015, January 2016, 21 and March 2016. (Tr. 28). Fox's previous visits with Dr. Sioma report that she has “nonfocal neurological findings, normal spine examinations, and intact sensory findings, which are not consistent with Dr. Sioma's opinion that she is disabled.” (Tr. 28).
The Commissioner's regulations provide that statements by a medical source that a claimant is “disabled” or “unable to work” are not medical opinions, but rather opinions on whether the claimant is disabled, an administrative finding expressly reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(1); id. § 416.927(d)(1); Dixon v. Comm'r of Soc. Sec. 183 Fed.Appx. 248, 251 (3d Cir. 2006) (“[O]pinions on disability are not medical opinions and are not given special significance.”); See also Snow v. Astrue, Civil Action No. 12-5 Erie, 2013 WL 501377, at *8 (W.D. Pa. Jan. 15, 2013) (“The ultimate determination as to whether a claimant is disabled is reserved to the Commissioner.”); See also Snow, 2013 WL 501377, at *8 (“Since medical doctors typically lack the vocational expertise needed to ascertain whether an individual's limitations would preclude the performance of specific jobs, their opinions as to whether a claimant is ‘disabled' carry little weight.....Questions pertaining to employer expectations are more appropriately addressed by 22 a vocational expert.”). Thus, the ALJ did not err in affording “little weight” to this particular opinion by Dr. Sioma.
In light of the above stated legal benchmarks and facts, we find that the ALJ's assignment of weight to the opinions of Dr. Surapaneni and Dr. Sioma are supported by substantial evidence and we see no reason to disturb those findings.
C. The ALJ adequately presented the hypothetical question to include all of Fox's limitations
There are two ways a claimant can frame a challenge to an ALJ's reliance on vocational testimony at step five. Rutherford v. Barnhart, 339 F.3d 546, 554 n.8 (3d Cir. 2005). First, the claimant can argue that the testimony cannot be relied upon because the ALJ failed to convey limitations to the VE that were properly identified in the RFC assessment. Id. Second, the claimant can argue that the VE's testimony cannot be relied upon because the ALJ failed to recognize the credibly established limitations during the RFC assessment and thus did not convey those limitations to the VE. Id. In either scenario, as an evidentiary matter, the ALJ's error precludes reliance on the VE's response to the faulty hypothetical question. Challenges of the latter 23 variety, like those raised in this case, are best understood as challenges to the RFC assessment itself. Id.
In this regard, the controlling legal standards are clear, and clearly defined. As the United States Court of Appeals for the Third Circuit has observed:
Discussing hypothetical questions posed to vocational experts, we have said that ''[w]hile the ALJ may proffer a variety of assumptions to the expert; the vocational expert's testimony concerning a claimant's ability to perform alternative employment may only be considered for purposes of determining disability if the question accurately portrays the claimant's individual physical and mental impairments.'' A hypothetical question posed to a vocational expert ''must reflect all of a claimant's impairments.'' Where there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert's response is not considered substantial evidence.Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)(citations omitted).
Fox alleged that the ALJ's hypothetical is incomplete because she failed to identify all of Fox's impairments and limitations. In response, the Commissioner asserts that the ALJ's RFC adequately accounted for all of Fox's credibly established limitations. It is well established that the RFC, and by extension, any hypothetical question on which the ALJ 24 relied, need only reflect those limitations that are credibly established by the record. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Thus, we are called upon to decide whether the ALJ improperly omitted Fox's physical and mental limitations.
Fox alleged she is unable to work due to a combination of physical and mental impairments. In terms of physical impairments, Fox reported a primary diagnosis of fibromyalgia, stating it affects every joint in her body. (Tr. 69). She stated that in addition to pain and headaches her fibromyalgia affects her ability to remember. (Tr. 69). Fox stated that her pain continued to get worse since 2015. (Tr. 70-71). She stated she was taking gabapentin, plaquenil, and tramadol for her pain. (Tr. 70). Fox stated that if she were not to take her medication and had a day that required physical activity she would be at a level ten pain, to the point of tears. (Tr. 71). Fox stated that sitting in a position for too long can make her pain worse. (Tr. 72). She also stated that she cannot stand for more than twenty minutes or walk for more than ten minutes. (Tr. 72). Fox stated that her medications take the edge off, but do not give her pain-free days. 25
In terms of mental impairments, Fox was diagnosed with depressive disorder, NOS, and borderline personality disorder in May 2013. At the time of the hearing, Fox testified she was taking zoloft and no longer taking ambien or buspar. (Tr. 75). Fox stated she has trouble sleeping because her mind is always running and she has difficulty getting comfortable. (Tr. 76). Fox stated that she has crying spells approximately two to three times a month. (Tr. 77). Fox stated that when she moved back to Pennsylvania from Kansas, she and her son were homeless. During that time she was living in a minivan that had broken down and leaked when it rained. (Tr. 77). Fox stated that she gets upset by every little thing and would snap at people. (Tr. 77).
Fox is able to care for her personal needs, perform light household chores on occasion, and watch school-aged children. (Tr. 74, 80). She is able to watch television, use the computer, listen to CDs, and spend time with her father and her son. (Tr. 78-95).
Fox's treatments of her mental impairments include only medication. Fox stated that she has been seen by a psychiatrist since 2015. (Tr. 74-75). The ALJ properly evaluated the vast medical opinions and found that Fox had the following severe impairments: osteoarthritis, 26 lumbar and cervical spine degenerative disease with cervicalgia, fibromyalgia, and obesity and could:
Lift, carry, push, pull up to 20 pounds occasionally; stand and/or walk 6 hours in an 8-hour day; sit 6 hours in an 8-hour day; alternate between a sitting and stand position at will; occasionally balance or stoop; never kneel, crouch, or crawl; occasional unprotected heights, moving mechanical parts, and temperature extreme, and occasionally operate a motor vehicle.(Tr. 23).
The ALJ found that while some of Dr. Surapaneni's opinions were generally consistent with the evidence, such as never kneeling, crouching, or crawling, the evidence indicated a greater carrying capacity without the need for some environmental limitations, such as only occasional exposure to humidity and wetness. (Id.). The ALJ further noted that while Dr. Surapaneni was a treating provider and some of the limitations were reflected in Dr. Surapaneni's limitations, the ALJ also considered the frequent unremarkable objective findings at visits with providers other than Dr. Surapaneni. (Id.). Therefore, the ALJ afforded significant weight to Dr. Surapaneni's opinion.
Here, the ALJ chose between contrasting medical opinions, giving greater weight to those opinions which were more congruent with Fox's 27 treatment records. We find that the ALJ's assessments are supported by substantial evidence. Therefore, we find that the ALJ did not err in failing to include all of the limitations expressed by Dr. Surapaneni in her hypothetical questions to the vocational expert.
D. Whether the ALJ complied with Social Security Ruling 12-2p.
Fox asserts that the ALJ erred in properly evaluating her fibromyalgia in accordance with Social Security Ruling 12-2p.
Social Security Ruling 12-2p was promulgated to provide “guidance on how we develop evidence to establish that a person has a medically determinable impairment of fibromyalgia, and how we evaluate fibromyalgia in disability claims and continuing disability reviews under Title II and XVI of the Social Security Act.” Soc. Sec. Ruling 12-2p, 2012 WL 3104869, at *1. This policy ruling provides certain criteria for the finding of a medically determinable impairment of fibromyalgia. Id. at *2-*5. The policy ruling further provides that, once a medically determinable impairment of fibromyalgia is established, the ALJ will consider the impairment in the usual five-step sequential evaluation process. Id. at *5. That is, the ALJ will “consider the severity of the 28 impairment, whether the impairment medically equals the requirements of a listed impairment, and whether the impairment prevents the person from doing his or her past relevant work or other work that exists in significant numbers in the national economy.” Id.
The ALJ need not determine if the impairment “meets” a listing because fibromyalgia is not a listed impairment. Soc. Sec. Ruling 12-2p, 2012 WL 310469, at *6.
Here, the ALJ found that Fox does suffer from a medically determinable impairment of fibromyalgia, and that it does constitute a severe impairment. The ALJ expressly considered whether Fox's fibromyalgia medically equaled any listings, either alone or in combination with her other impairments. (Tr. 22-23).
The plaintiff argues, in passing, that the ALJ should have specifically considered listing 14.09D (inflammatory arthritis), but the ALJ was under no obligation to discuss this particular impairment as it was never alleged by the plaintiff. Acker v. Colvin, No. 3:15-cv-1319, 2016 WL 6826165, at *10 n.7 (M.D. Pa. Nov. 18, 2016). In her briefs, the plaintiff cites to medical records in which she was diagnosed with osteoarthritis, a distinctly different disease from inflammatory arthritis. (See Doc. 14, at 30.) The ALJ specifically considered Fox's osteoarthritis impairment under listings 1.02 and 1.04 (Tr. 22).
The ALJ then considered the impact of Fox's fibromyalgia on her RFC. Accordingly, we find that the ALJ complied with Social Security Ruling 12-2p, and her findings with respect to the plaintiff's fibromyalgia 29 are supported by substantial evidence. See Acker v. Colvin, No. 3:15-cv-1319, 2016 WL 6826165, at *10 (M.D. Pa. Nov. 18, 2016); see also Thompson v. Colvin, 575 Fed.Appx. 668, 677 (7th Cir. 2014); Shane v. Berryhill, Civil Action No. 18-284, 2019 WL 1099807, at *3 (W.D. Pa. Mar. 8, 2019); Rivera v. Commissioner of Soc. Sec., Civil Action NO. 151088 (ES) 2016 WL 4718143, at *4 (D.N.J. Sept. 9, 2016).
E. Whether the ALJ erred in finding the claimant able to perform past relevant work
Next, Fox argues that the ALJ erred in finding her capable of performing past relevant work. We disagree. At the fourth step of the sequential evaluation process, the ALJ considers whether a claimant's current RFC prevents him or her from engaging in past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); see also 20 C.F.R. §§ 404.1560 (b)(1), 416.960(b)(1)(defining past relevant work). If the ALJ concludes that a claimant is able to engage in his or her past relevant work, the claimant will be found not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). In determining whether a claimant can return to past relevant work, the question is not solely whether the claimant can return to his or her own particular job. Instead, the ALJ must also consider whether the claimant retains the functional capacity 30 to meet the demands of his or her former type of work. See Soc. Sec. Ruling 82-61, 1982 WL 31387, at *2 (“A former job performed by the claimant may have involved functional demands and job duties significantly in excess of those generally required for the job by other employers . . . if the claimant cannot perform the excessive functional demands and/or duties actually required in the former job, but can perform the functional demands and job duties generally required by employers throughout the national economy, the claimant should be found ‘not disabled.'”).
Social Security Ruling 82-61 provides that a claimant can return to past relevant work when he or she can perform either “the functional demands and job duties peculiar to an individual job as he or she actually performed it, ” or “retains the capacity to perform the functional demands and job duties of the job as ordinarily required by employers throughout the national economy.” Id. at *1-*2. Generally, a claimant is the primary source of vocational evidence regarding the demands of his or her past relevant work as actually performed. Id. at *3. Supplemental or corroborative information on the requirements of the work as generally performed in the economy is often gleaned from the DOT. Id. However, 31 “where available documentation and vocational resource material are not sufficient to determine how a particular job is usually performed, it may be necessary to utilize the services of a vocational specialist or vocational expert.” Id. at *2.
In her decision at step four, the ALJ found that notwithstanding Fox's impairments she was able to perform past relevant work and there are other jobs existing in the economy which she is able to perform. (Tr. 30). The VE testified that Fox's work as an admissions clerk, DOT #205.362-018, was sedentary, but actually performed at light to medium exertion levels. (Tr. 30). The admissions clerk job as ordinarily performed in the national economy was available and did not require the performance of work-related activities precluded by the claimant's RFC. (Tr. 30).
Additionally, the ALJ found that Fox could perform several jobs available in the national economy, occupations including: inspector, DOT #713.687-022, with approximately 10, 000 positions available in the state and 200, 000 positions available nationally; inspector, timers, DOT #715.687.074, with 5, 000 positions available in the state and 120, 000 positions available nationally; data input clerk, DOT #209.687-010, with 32 200 positions available in the state and 5, 000 positions available nationally; and scheduler, DOT #221.587-038, with 3, 000 positions available in the state and 75, 000 positions available nationally. (Tr. 31).
The VE also identified alternative jobs which Fox could perform without consideration of transferable skills. The VE identified the following jobs: mail sorter, non-postal, DOT #209.687-026, with 3, 000 positions available in the state and 52, 000 positions available nationally; and cashier, DOT #211.462-010, with 18, 000 available in the state and more than 1, 000, 000 available nationally. (Tr. 31). The vocational expert also testified that he gave reduced numbers for all jobs based on the hypothetical and the option for alternating sitting and standing. (Tr. 31).
The ALJ considered Fox's age, education, work experience, and RFC, and identified that Fox had also acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in both the national and state economy.
The ALJ properly assessed Fox's limitations and found that although she is unable to perform full range of light work, Fox is able to perform work that is available in the state and nationally. 33
F. Substantial evidence supports the ALJ's credibility finding
The last contested issue that Fox argues is that the ALJ erred in determining that Fox's testimony about her impairments was not entirely credible. As a general matter, the Court should “ordinarily defer to an ALJ's credibility determination.” Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). As the factfinder, the ALJ evaluates the credibility of witnesses. Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). While “any statements of the individual concerning her or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011). To assess a claimant's credibility, the ALJ must consider several factors, including the claimant's daily activities, the intensity of the symptoms, the treatment received, and other facts concerning functional limitations and restrictions.” 20 C.F.R. § 404.1529(c)(3). The ALJ should reject claims of subjective complaints if the ALJ does not find them credible. See Schaudek v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
In evaluating a claimant's subjective complaint, the ALJ engages in a two-step process in which the ALJ determines whether the claimant has an impairment that could reasonably cause the alleged symptoms, 34 and then evaluates the statements about their intensity against the record. Whenever a claimant's statements about the intensity, persistence, or functionally limiting effects of her or her impairments is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the claimant's statements based on a consideration of the entire case record. Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2.
In this situation, the ALJ concluded, after careful consideration, that Fox's medically determinable impairments could be expected to cause the alleged symptoms; “however, the claimant's statements concerning the intensity, persistence and liming effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 24). The ALJ relied upon medical evidence to support her finding that many of Fox's complaints are unremarkable. Fox reported to have no major joint abnormalities in November 2015 and February 2016, bilateral x-rays showed mild primary osteoarthritis. (Tr. 24). Further, the ALJ explained how Fox was using a walker at a rheumatology appointment visit in 2015 but had normal gait with the same provider in January and March 2016. (Tr. 24). 35 In February 2016, Fox was identified as having full range of motion over the hips, knees, and ankles; she declined a corticosteroid injection at that visit. (Tr. 430-39). In July 2016, Sowmya Surapaneni, M.D. wrote that Fox was doing very well with her water therapy and he encouraged her to stay physically active at home. (Tr. 25). In March 2017, Dr. Surapaneni found that Fox appeared well, not in any significant distress, had good motion in her wrists, elbows, and shoulders, but she had some limited range of motion in her cervical spine. (Tr. 627).
The review of the various findings in the record is direct evidence that the ALJ considered the entire case record in making her determination on Fox's credibility in accordance with Soc. Sec. Ruling 967p.
Because the Court is constrained by a highly deferential standard with regard to determinations in plaintiff's credibility, and the ALJ demonstrated that she considered the entire record by pointing to evidence that supports her finding that Fox's statements about her symptoms are not entirely credible, we conclude that there was no error in the ALJ's determination of Fox's credibility. 36
Given the evidence of record, the Court finds that there is substantial evidence in the administrative record to support the ALJ's finding that Fox's statements concerning the intensity, persistence, and limiting effects of her symptoms were “not entirely credible, ” and that the determination was adequately explained and otherwise based upon a correct application of relevant law.
Accordingly, we do not recommend remand on these grounds.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED and that Fox's requests for the award of benefits or remand for a new administrative hearing be DENIED. 37
Andrew Saul was sworn in as Commissioner of Social Security on June 17, 2019. He is automatically substituted as a party pursuant to Fed.R.Civ.P. 25(d). See also Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g)(action survives regardless of any change in the person occupying the office of Commissioner of Social Security). The caption in this case is amended to reflect this change.
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 23, 2019. 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 serve38
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 her or her discretion or where required by law, and may consider the record developed before the magistrate judge, making her 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.