Opinion
CIVIL ACTION NO. 3:18-CV-1863
01-27-2020
CYNTHIA R. MARENCIC, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant
(MANNION, D.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
Plaintiff Cynthia R. Marencic, 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 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 September 24, 2015, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 42). In this application, Plaintiff alleged she became disabled as of April 1, 2014, when she was 56 years old, due to the following conditions: anxiety, depression, back pain and stiffness, hip replacement, and shaky hands. Id. at 175. Plaintiff alleges that the combination of these conditions affects her ability to bend, stand, walk, kneel, memorize, complete tasks, concentrate, and use her hands. Id. at 206. Plaintiff completed high school in 1975. Id. at 176. Before the onset of her impairments, Plaintiff worked as a contract specialist for the Commonwealth of Pennsylvania for twenty-one years. Id. In this position, Plaintiff supervised and trained multiple people, evaluated data, and ensured satisfactory work and employee performance. Id. at 177.
On December 8, 2015, Plaintiff's application was denied at the initial level of administrative review. Id. at 42. On December 23, 2015, Plaintiff requested an administrative hearing. Id. On May 30, 2017, Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Scott M. Staller (the "ALJ"). Id. at 58. On November 2, 2017, the ALJ issued a decision denying Plaintiff's application for benefits. Id. at 39. On January 11, 2018, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"). Id. at 8. On August 2, 2018, the Appeals Council denied Plaintiff's request for review. Id. at 1.
On September 24, 2018, Plaintiff initiated this action by filing a complaint. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying her application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Doc. 1). As relief, Plaintiff requests that the Court enter judgement under sentence four of 42 U.S.C. § 405(g), reversing the Commissioner's final decision with a remand for a rehearing, i.e., for further administrative proceedings. (Doc. 15).
On December 4, 2018, the Commissioner filed an answer. (Doc. 11). 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. Id. Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 15) and the Commissioner's Brief (Doc. 18) have been filed. Plaintiff did not file a reply. This matter is now ripe for decision. III. STANDARDS OF REVIEW
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 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 which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 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 November 2, 2017.
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, 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(a); 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 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 arguments in her statement of errors:
(1) "The ALJ's RFC finding is contrary to law because he failed to account for his own finding regarding Plaintiff's mild limitations in concentrating, persisting or maintaining pace, understanding, remembering or applying information, and interacting with others." (Doc. 15, p. 6).
(2) "The ALJ erred by rejecting the opinion of the treating and examining sources contrary to the regulations, Agency policy and Third Circuit precedent." Id.
(3) "The ALJ's credibility finding is generally defective based on the foregoing errors, but also specifically because it neglects to consider Plaintiff's exemplary work history in his assessment." Id.
A. THE ALJ'S DECISION DENYING PLAINTIFF'S APPLICATION
In his November 2017 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through December 31, 2019. Id. at 44. Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 1, 2014, Plaintiff's alleged onset date. Id. at 44. At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: degenerative disc disease of the lumbar spine, migraines, and status/post left hip replacement. Id. The ALJ noted that the record supports the existence of the following medically determinable non-severe impairments: chronic obstructive pulmonary disease ("COPD"), gastroesophageal reflux disease ("GERD"), hyperlipidemia, hypothyroidism, hypertension, carpal tunnel syndrome, mood disorder, anxiety disorder, and attention deficit disorder ("ADD"). 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. Id. at 46.
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). Id. at 47. The ALJ fashioned the following RFC assessment:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b), except the claimant can frequently reach, handle, and finger with the dominant right upper extremity.Id. at 47.
At step four, the ALJ found that, during the relevant period, Plaintiff could engage in her past relevant work as a contract specialist. Id. at 52. Since, the ALJ determined that the Plaintiff was able to perform her past relevant work, the ALJ did not proceed to step five of the sequential analysis. Id.
B. WHETHER THE ALJ'S RFC ASSESSMENT ACCOUNTED FOR LIMITATIONS RESULTING FROM PLAINTIFF'S NON-SEVERE MENTAL IMPAIRMENTS
The psychiatric review technique ("PRT"), described in 20 C.F.R. § 404.1520a guides the assessment of the severity of a claimant's mental impairments in categories identified in the "paragraph B" criteria of the adult mental disorders listings. SSR 96-8p, 1996 WL 374184 at *4; see also 20 C.F.R. Part 404, Subpart P, Appendix 1 §12.00 et seq. The Paragraph B criteria include the following four broad categories: understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing oneself. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00E. These categories are used in conjunction with a five-point rating scale to assess the severity of the impairment at steps two and three of the sequential evaluation process. SSR 96-8p, 1996 WL 374184 at *4. The degree of limitation in each area is assessed based on the following scale: no limitation (or none); mild limitation; moderate limitation; marked limitation; and extreme limitation. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00F.
In this case, the ALJ found that Plaintiff had: a mild limitation in understanding, remembering, or applying information; a mild limitation in interacting with others; a mild limitation in concentrating, persisting or maintaining pace; and no limitation adapting or managing herself. (Admin. Tr. 45-46). A "mild" limitation is defined as the ability to function in an area "independently, appropriately, effectively, and on a sustained basis is slightly limited." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00F.
As discussed in Section IV. A. of this Report, the ALJ found that Plaintiff had the RFC to "perform light work as defined in 20 C.F.R. 404.1567(b), except the claimant can frequently reach, handle, and finger with the dominant right upper extremity." (Admin. Tr. 47).
Plaintiff argues that the ALJ's RFC finding is legally insufficient because it fails to incorporate limitations resulting from Plaintiff's non-severe mental impairments. Specifically, Plaintiff argues that "the ALJ's RFC finding is legally insufficient because it fails to account for limitations that the ALJ himself found to exist, and this is not harmless because such deficits would patently impact Plaintiff's ability to perform her highly skilled past work as a contract specialist (SVP 8), where any degree of concentration, persistence or pace deficit would result in erroneous and/or untimely work, and where any degree of social limitations would affect relationships with co-workers and supervisors." (Doc. 15, p. 7) (internal footnote omitted) (emphasis in original).
In response, the Commissioner argues:
Plaintiff's argument lacks merit because, here, the ALJ found her mental impairments to be non-severe—a finding she does not challenge (and has thus waived) (Pl.'s Br. at 4-24). If an impairment is non-severe, it by definition does not significantly limit a claimant's ability to do basic work activities. See 20 C.F.R. § 404.1522(a). If a claimant's functional limitations are rated at "none" or "mild," in the four functional areas, the ALJ will generally conclude that the claimant's impairment is not severe. 20 C.F.R. § 404.1520a(d)(1). By definition, an impairment that is non-severe "would have no more than a minimal effect on an individual's ability to work." Social Security Ruling (SSR) 85-28, 1985 WL 56856 (S.S.A.) (emphasis added).
Here, Plaintiff has not challenged the ALJ's step two non-severity determination (Pl.'s Br. at 4-8). She thus waived any such argument. See Pelullo, 399 F.3d at 222 ("It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waive of that issue on appeal"). Nevertheless, the Commissioner notes that this was an appropriate conclusion for the ALJ to reach on this record. Plaintiff's treating sources never documented abnormal objective mental status examination findings during the three-year relevant period (Tr. 262-63, 264-65, 267-68, 270-71, 274, 276, 279, 283, 286, 329-30, 336, 339, 342, 346, 349). As the ALJ explained, objective medical records from Plaintiff's treating physicians consistently indicated benign findings, including normal mood and affect, the ability to concentrate, attentiveness, and cooperative and appropriate attitude (Tr. 46, 270-71, 274, 279, 283, 286, 329-30, 336, 342). The ALJ also accurately noted that Plaintiff regularly denied psychiatric symptoms (Tr. 46, 262-63, 322, 328, 331, 335), and reported controlled or improved condition (Tr. 46, 270, 279, 285). In fact, even when Plaintiff related complaints, her treating providers did not document psychiatric abnormalities on examination (Tr. 264-65, 267-68, 273-74, 276, 342, 349).
Against this backdrop, the ALJ reasonably found that Plaintiff's non-severe mental impairments did not cause functional limitations. Instead, the record fully supports the ALJ's conclusion within the RFC analysis that Plaintiff's mental diagnoses were non-severe impairments that "do not restrict the claimant's ability to perform basic work activities" (Tr. 51) (emphasis added). The objective medical findings, and the ability
to concentrate simply do not demonstrate that any specific mental limitations were warranted on this record.(Doc. 18, pp. 15-17) (internal footnote omitted) (emphasis in original).
Plaintiff appears to be raising an argument similar to the one raised in Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004). Ramirez involved a claimant who had been diagnosed with generalized anxiety disorder and depression. 372 F. 3d at 548. When conveying the claimant's credibly established limitations to the VE, and formulating his RFC assessment, the ALJ asked the VE to "assume a hypothetical individual with Ramirez's background and the following limitations: sedentary work in a well-ventilated environment, with no exposure to dust, fumes, pets, animals, chemicals, or temperature extremes; occasional breaks necessary for the use of an inhaler or pump; no more than simple one or two-step tasks; no travel outside the workplace; and a reasonable opportunity to receive and make personal telephone calls." Id. at 554. Ultimately, the Court found that the above-quoted hypothetical did not adequately convey all the claimant's limitations. Specifically, the Court observed that "a requirement that a job be limited to one to two step tasks, as was stated in the hypothetical relied upon by the ALJ, does not adequately encompass a finding that [Ramirez] 'often' has 'deficiencies in concentration, persistence, or pace'" and "does not take into account deficiencies in pace." Id. The court held that because there was some evidence suggesting a possible deficiency in pace, the unexplained omission of any such limitation from the hypothetical "runs afoul of our directive in Chrupcala that a "hypothetical question posed to a vocational expert 'must reflect all of a claimant's impairments," Chrupcala, 829 F.2d at 1276, as well as our statement in Burns that "great specificity" is required when an ALJ incorporates a claimant's mental or physical limitations into a hypothetical. Burns, 312 F.3d at 122." Ramirez, 372 F.3d at 554-55.
Although the current regulatory scheme is vastly different than it was when Ramirez was decided, the same general principles apply here. To the extent Plaintiff argues that remand is required because it appears that the ALJ's assessment of the paragraph B criteria was not fully incorporated in the RFC assessment, such arguments have routinely been rejected in cases involving more severe limitations than those identified at step two in this case. Durden v. Colvin, 191 F.Supp.3d 429, 458 (M.D. Pa. 2016); see also Dickey v. Berryhill, 4:17-cv-00574, 2018 WL 3469039 at *7 (M.D. Pa. May 30, 2018); Whitmire v. Comm'r of Soc. Sec., 3:13-cv-1380, 2014 WL 582781 at *8-9 (M.D. Pa. Feb. 14, 2014). Rather, "the burden is on the plaintiff 'to additionally establish that the record otherwise suggests additional limitations were necessary.'" Dickey, 2018 WL 3469039 at *7.
Although Plaintiff generally alleges that the mild limitations identified at step two would likely have at least some effect on the RFC assessment, she does not identify what additional limitations should be incorporated in the RFC or cite to any evidence in the record that support the existence of any additional limitation resulting from her non-severe mental impairments. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination," Shinseki v. Sanders, 556 U.S. 396, 410 (2009), and that burden has simply not been met here. Accordingly, I am not persuaded that remand is required for further evaluation of any limitation resulting from Plaintiff's non-severe mental impairments.
C. WHETHER THE ALJ PROPERLY EVALUATED THE MEDICAL OPINION EVIDENCE OF RECORD
Plaintiff argues that the ALJ erred in his evaluation of the following medical sources: treating physician Minh Nguyen ("Dr. Nguyen"); consultative examiner Spencer Long ("Dr. Long"); and consultative examiner Noretta Kime ("Dr. Kime"). Doctors Nguyen and Long evaluated Plaintiff's physical impairments, and Dr. Kime evaluated Plaintiff's mental impairments. Plaintiff thoroughly summarized each of these opinions in her brief. (Doc. 15, pp. 9-11).
In his decision, the ALJ gave Dr. Nguyen's opinion "little" weight. In doing so, the ALJ explained:
The undersigned gives Dr. Nguyen's assessment little weight because it is not internally consistent, let alone consistent with the overall objective medical record. For instance, Dr. Nguyen's assessment of physical limitations is not consistent with her assessment of mental health conditions. In addition, Dr. Nguyen's level of physical
limitations is not consistent with the relatively normal to mild physical findings on examination, as discussed in detail above.(Admin. Tr. 51).
The ALJ gave Dr. Long's opinion "partial" weight. In doing so, the ALJ explained:
The undersigned gives Dr. Long's assessment partial weight where it is generally consistent with the overall record showing the claimant has medically determinable CTS, lumbar degenerative disc disease, and a history of hip replacement, as discussed above. However, the undersigned notes that Dr. Long's assessed limitations are not consistent with his own normal to mild examination findings, let alone the overall objective medical record examination findings, as discussed above. For instance, Dr. Long's findings of normal gait, no assistive device, and normal extremity findings are not consistent with his opinion that the claimant could stand or walk for only 25 minutes in an 8-hour workday. In addition, Dr. Long's assessment of manipulative limitations in the bilateral upper extremities is not consistent with his relatively normal left harm [sic] and left hand findings. Finally, Dr. Long's indication of normal chest and lung findings on examination are not consistent with his assessment of certain environmental limitations such as occasionally tolerate pulmonary irritants.(Admin. Tr. 50).
The ALJ gave Dr. Kime's opinion partial weight. In doing so, he explained that:
The undersigned gives Dr. Kime's assessment partial weight where it is generally consistent with the overall record showing the claimant has medically determinable depression and anxiety, as discussed above. However, the undersigned notes that Dr. Kime's relatively normal findings on examination, as well as examination findings from the overall objective medical record, are not consistent with her opinions
that the claimant's conditions caused moderate to marked limitations in the claimant's ability to follow instructions or interact socially at work.(Admin. Tr. 50).
Plaintiff argues that "[t]he ALJ rejected the opinions of Drs. Nguyen, Long, and Kime for legally insufficient and/or factually inaccurate reasons." (Doc. 15, p. 17). Plaintiff identifies specific errors in support of this argument: (1) that the ALJ failed to consider that the opinions were consistent with each other; (2) the ALJ failed to properly consider the treating and examining relationship between Plaintiff and each of the three sources; and (3) the ALJ improperly substituted his own lay opinion for that of a medical expert. I will address each of these arguments below.
1. Whether the ALJ Failed to Consider the Consistency The Three Medical Opinions With One Another
Plaintiff argues:
Critically, the ALJ discussed the opinions of Drs. Nguyen, Long and Kime in isolation from each other, without acknowledging they support each other in their agreement that Plaintiff's ability to perform full-time work due to her physical and mental impairments is more limited than the ALJ's RFC describes. That the assessments of independent sources confirm each other's conclusions is compelling and highly probative evidence cannot be reasonably denied just on general principles; however, Plaintiff need not rely on a general argument since 20 C.F.R. § 404.1527(c)(4) plainly incorporates this general rule, requiring an ALJ to consider the consistency of medical opinions with the record "as a whole," which obviously includes other medical opinions. The ALJ's failure to even acknowledge the consistency between these critical pieces of evidence is clear error that undermines his analysis of the medical opinion evidence.(Doc. 15, p. 17) (emphasis in original).
In response, the Commissioner argues:
These opinions were not consistent with each other, and this of course is not the relevant inquiry. Moreover, this overlooks the critical point that none of these opinions were consistent with the objective medical record as a whole. They were all undermined by the examiners' own objective findings. See Harrison v. Comm'r Soc. Sec. Admin., No. 13-3803, 2014 WL 5495246, at *2-3 (D. Md. Oct. 29, 2014) (rejecting plaintiff's argument that the ALJ erred in assigning little weight to plaintiff's mental health providers "because their opinions were consistent with each other," where "the ALJ found that both opinions were inconsistent with each other," where "the ALJ found that both opinions were inconsistent with the medical and other evidence of record").(Doc. 18, pp. 29).
The regulation governing an ALJ's evaluation of medical opinion evidence provides in relevant part that, "[g]enerally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion." 20 C.F.R. § 404.1527(c)(4). Although Plaintiff argues that the three opinions at issue—by Doctors Nguyen, Long, and Kime, are "consistent" "in their agreement that Plaintiff's ability to perform full-time work due to her physical and mental impairments is more limited than the ALJ's RFC describes," this is not the type of consistency contemplated by the regulations. See e.g. 20 C.F.R. § 404.1520b(b) ("We consider evidence to be inconsistent when it conflicts with other evidence, contains an internal conflict, is ambiguous, or when evidence does not appear to be based on medically acceptable clinical or laboratory diagnostic techniques."); 20 C.F.R. § 404.1513(a) ("evidence is anything you or anyone else submits to us or that we obtain that relates to your claim," including objective medical evidence, medical opinions, other medical evidence, evidence from nonmedical sources, or prior administrative findings from federal and state agency medical consultants at a prior level of review). The ALJ's decision, and RFC assessment itself is not "evidence" and therefore claiming that the ALJ failed to consider the "consistency" of evidence with something that was not evidence is not error. Instead the regulations appear to contemplate "consistency" as the similarity in the nature and degree of limitations set forth in each opinion.
With respect to the three opinions at issue, the ALJ summarized Dr. Nguyen's opinion as follows:
Dr. Nguyen assessed diagnoses of depression and anxiety. However, Dr Nguyn then opined the claimant has certain physical limitations, including sitting, standing, or walking less than one hour in an 8-hour workday, and lifting and carrying zero-to-five pounds. In addition, Dr. Nguyen opined the claimant could finger, handle, feel, or grasp for one to three hours per 8-hour workday, and that the claimant would occasionally have difficulty concentrating or completing an 8-hour workday due to chronic pain. Further, Dr. Nguyn opined the claimant would miss more than four workdays per month due to her conditions.(Admin. Tr. 51).
The ALJ summarized Dr. Long's opinion as follows:
Dr. Long assessed diagnoses of right carpal tunnel syndrome, left hip total replacement, and lower back pain. Dr. Long opined the claimant could lift 20 pounds occasionally and 10 pounds frequently, but only carry 10 pounds occasionally. Dr. Long also opined the claimant could sit for 8 hours, but stand or walk for only 45 minutes, in an 8-hour workday. In addition, Dr. Long opined the claimant could frequently reach, push, or pull, but only occasionally reach overhead, handle, finger, or feel, with the bilateral upper extremities. Dr. Long also opined the claimant could operate foot controls frequently with the right foot but only occasionally with the left foot. Further, Dr. Long opined the claimant could occasionally climb ramps and stairs, balance, stoop, kneel crouch, and crawl, but never tolerate ladders of scaffolds. Finally, Dr. Long opined the claimant could frequently tolerate humidity and wetness, occasionally tolerate unprotected heights, moving mechanical parts, operation of a motor vehicle, dust, odors, fumes, and pulmonary irritants, but never tolerate extreme temperatures or vibrations.(Admin. Tr. 50).
The ALJ summarized Dr. Kime's opinion as follows:
Dr. Kime assessed diagnoses of major depressive disorder and generalized anxiety disorder. Dr. Kime opined the claimant's psychiatric and cognitive problems might significantly interfere with the claimant's ability to function on a daily basis.Id.
At the outset, I disagree with Plaintiff's assertion that these three opinions are consistent with one-another. Dr. Kime's opinion addresses only mental impairments, and therefore does not overlap with any of the limitations set forth in the opinions from the other doctors. With respect to the opinions of Doctors Nguyen and Long, the opinions both suggest that Plaintiff has limitations standing, walking, lifting, carrying, fingering, feeling, and handling. The degree of limitation in each activity, however, differs significantly in all areas save one—that Plaintiff could not stand for more than one hour at a time. Thus, I agree with the Commissioner's statement that these three opinions are not particularly consistent with one another, and I do not agree with Plaintiff's argument that the consistency between these three opinions entitles them to greater weight. As to the issue of whether the ALJ actually considered the consistency of these opinions, I am not persuaded by Plaintiff's argument. Nothing in the regulations requires the ALJ to use "particular language or adhere to a particular format in conducting his analysis," Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004), rather the ALJ must merely provide enough explanation to permit meaningful judicial review, Cotter, 642 F.2d at 704-705. Given the detailed summary of each opinion in the ALJ's decision reproduced above, I find that the ALJ did consider the consistency of these opinions with one-another. Accordingly, I find that remand is not required to consider the consistency of these three opinions with one another.
2. Whether the ALJ properly Considered the Treatment Relationship and Frequency of Examination When Evaluating the Three Medical Opinions
With respect to Dr. Nguyen, a treating source, Plaintiff argues that:
[W]hile the ALJ identified Dr. Nguyen as Plaintiff's treating physician, he gave no obvious consideration to the regulation that provides the opinions of treating sources are generally entitled to more weight "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence . . . ." 20 C.F.R. § 404.1527(c)(2). In fact, the regulations unambiguously require that "[w]hen the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source." 20 C.F.R. § 404.1527(c)(2)(ii) (emphasis added). The ALJ did not find, or even suggest, that Dr. Nguyen does not have "reasonable knowledge" of Plaintiff's impairments, nor would such an assertion be supported by the record. Despite this, the ALJ gave no obvious consideration to the regulatory directive that a treating source must be given more weight than nontreating sources when they have "reasonable knowledge" of their patient's impairments.(Doc. 15, pp. 17-18).
With respect to the Consultative Examiners—Doctors Long and Kime, Plaintiff argues:
Agency physicians are deemed under the regulations to have expertise in the evaluation of disability in general, and in particular with respect to Social Security's programs. 20 C.F.R. § 404.1527(e)(2)(i) ("State Agency medical and psychological consultants and other program physicians, psychologists, and other medical specialists are highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation."). Yet, the ALJ did not acknowledge the special status that Drs. Long and Kime held with the Agency. Nor did he acknowledge that Drs. Nguyen, Long, and Kime all examined Plaintiff, which generally entitled them to "more weight" under the regulations. 20 C.F.R. § 404.1527(c)(1) ("Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you."). In short, the ALJ ignored without comment numerous § 404.1527(c) factors that favor crediting these opinions.(Doc. 15, pp. 18-19).
In response, the Commissioner argues:
Plaintiff argues that the ALJ did not acknowledge the factors outlined in 20 C.F.R. § 404.1527 (Pl.'s Br. at 14-15). This is not true as the ALJ explained that he "also considered the opinion evidence in accordance with the requirements of 20 CFR 404.1527" (Tr. 47). "The ALJ is not, however, required to expressly apply each of these factors in deciding what weight to give a medical opinions and not every factor applies in every case." Williams v. Colvin, No. 3:12-1422-JRM, 2013WL 3338492, at *7 (D.S.C. Jul. 2, 2013). "Nothing in § 404.1527[] requires an express discussion of each factor." Baxter v. Astrue, No. SKG-10-3048, 2012 WL 32567, at *6 (D.Md. Jan 4, 2012); see also Centeno v. Comm'r of Soc. Sec., Civ. No. 13-2951, 2015 WL 5666751, *5 (D.N.J. Sept. 25, 2015); Warren v. Astrue, No 5:08-CV-149-FL, 2009 WL 1392898, at *3 (E.D.N.C. May 18, 2009) (holding that an express "factor-by-factor analysis" is not required and that the ALJ did not err by failing to discuss all of the factors); McClain-Nelson v. Comm'r of Soc. Sec., No. 12-14490, 2014 WL 988910, at *7 (E.D. Mich. Mar. 13, 2014) (an ALJ is not required to discuss every factor listed in 20 C.F.R. § 404.1527); Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (Plaintiff "cutes no law, and we have found none, requiring an ALJ's decision to apply expressly each of the six relevant factors in deciding what weight to give a medical opinion."). The ALJ acknowledged Dr. Nguyen as Plaintiff's treating physician (Tr. 51), and further recognized that Drs. Long and Kime examined Plaintiff (Tr. 50). The problem, however, is that all three opinions were undermined by the unambiguous objective examination findings (Tr. 50-51). As discussed above, these opinions were all materially inconsistent with the consistently benign physical and mental status examination findings. These material inconsistencies cannot and should not be overlooked.(Doc. 18, pp. 29-30).
With respect to Plaintiff's first argument—that remand is required because the ALJ failed to consider that Dr. Nguyen's status as a treating source—I am not persuaded. A claimant's treatment relationship is a factor that the ALJ is required to consider when weighing medical opinions. The regulation provides the following guidance as to the consideration of this factor:
Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(c)(2). This regulation explains that four conditions must be present for a medical opinion to be entitled to controlling weight under 20 C.F.R. § 404.1527(c)(2):
(1) the opinion must be a medical opinion as defined in 20 C.F.R. § 404.1527(a)(1);
(2) the medical opinion must be from a treating source as defined in 20 C.F.R. § 404.1527(a)(2);
(3) the medical opinion must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques," 20 C.F.R. § 404.1527(c)(2); and
(4) the medical opinion must be "not inconsistent with the other substantial evidence in [the claimant's] case record," 20 C.F.R. § 404.1527(c)(2).
There appears to be no dispute that Dr. Nguyen's opinion meets the first two conditions—her opinion is a medical opinion, and she is a treating source. However, Plaintiff is incorrect that the ALJ was required to make any conclusion as to whether Dr. Nguyen did or did not have reasonable knowledge of Plaintiff's impairments when deciding to give controlling or non-controlling weight to that opinion under 20 C.F.R. § 404.1527(c)(2).
Next Plaintiff appears to argue that the ALJ did not consider 20 C.F.R. § 404.1527(c)(2)(ii). The Commissioner's regulations explain that "[w]hen we do not give the treating source's medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical opinion." 20 C.F.R. § 404.1527(c)(2). Section 404.1527(c)(2)(ii) provides, in relevant part:
Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her medical opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's medical opinion more weight than we would give it if it were from a nontreating source.To the extent Plaintiff argues that the ALJ did not consider this factor, I am not persuaded. The ALJ did note in his opinion that "Dr. Nguyen's assessment of physical limitations is not consistent with her assessment of mental health conditions." (Admin. Tr. 51). Thus, it appears that the ALJ did consider this factor, and concluded that it did not weigh in favor of crediting the opinion. Furthermore, assuming arguendo that the ALJ did not, I am not persuaded that there is any reasonable possibility this factor could be considered to weigh in Plaintiff's favor. As noted by the ALJ, in her opinion Dr. Nguyen reported that she was treating Plaintiff for depression and anxiety. (Admin. Tr. 51). Although not noted in the ALJ's decision, the opinion also includes a diagnosis of hypothyroidism. (Admin. Tr. 368) (identifying ICD-10 code E 03.8, other specified hypothyroidism). Similarly, treatment records from Dr. Nguyen show that Plaintiff was treated for follow up of hyperlipidemia and hypothyroidism, a gynecological exam, and eye pain. (Admin. Tr. 328-350). The medically determinable severe impairments at issue in this case are degenerative disc disease of the lumbar spine, migraines, and status/post left hip replacement. (Admin. Tr. 44). It does not appear that Dr. Nguyen's opinion would be entitled to additional weight under 20 C.F.R. § 404.1527(c)(2)(ii) because Dr. Nguyen did not treat Plaintiff for the impairments that cause the majority of her physical limitations. Accordingly, I am not persuaded that remand is required for further consideration of the weight of Dr. Nguyen's opinion.
With respect to the opinions by the consultative examiners, Plaintiff alleges that the ALJ failed to consider that they were entitled to deference under 20 C.F.R. § 404.1527(e)(2)(i), I am not persuaded. Section 404.27(e)(2)(ii) of Title 20 of the Code of Federal Regulations was amended on March 27, 2017. The new version—which was applicable in Plaintiff's case (decided in November 2017) does not contain a subsection (e)(2)(i). Therefore, I am not persuaded by Plaintiff's argument that remand is required to consider whether the opinions of the consultative examiners are entitled to greater weight under 20 C.F.R. § 404.1527(e)(2)(i).
To the extent Plaintiff alleges that remand is required because the ALJ did not properly consider 20 C.F.R. § 404.1527(c)(1) before discounting the opinions of the consultative examiners I am similarly unpersuaded. Section 404.1527(c)(1) of Title 20 of the Code of Federal Regulations provides, in relevant part "[g]enerally, we give more weight to the medical opinion of a source who has examined you than to the medical opinion of a source who has not examined you." However, in his opinion, the ALJ noted that Plaintiff "met with Spencer Long, M.D., for an internal medicine consultative examination," and "met with Noretta Kime, Psy.D., for a psychiatric consultative examination." (Admin. Tr. 50). Based on this language I am satisfied that the ALJ considered this factor before discounting the opinions of these consultative examiners.
3. Whether the ALJ Improperly Substituted His Opinion For That of A Medical Expert
Next, Plaintiff argues:
The ALJ accorded Drs. Long and Kime "partial weight" to the extent their opinions were "generally consistent with the overall record show the claimant has medically determinable [impairments]", but rejected their assessed limitations as inconsistent with their own examinations and the overall objective medical record. Tr. 50. The ALJ accorded Dr. Nguyen "little weight" because of a purported internal inconsistency and inconsistency with the overall objective medical record. Tr. 51. The ALJ's assertion that Drs. Long and Kime's own examination findings do not support their opinions is plainly an impermissible substitution of the ALJ's lay opinion for that of these physicians. Plummer, 186 F.3d at 429 ("[A]n ALJ is not free to employ [his] own expertise against that of a physician who presents competent medical evidence.") (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)); see also Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987). There can be no serious dispute that Drs. Long and Kime were familiar with their own examinations of Plaintiff when they offered their opinions; the ALJ's re-interpretation of these findings as a reason to reject their opinions is the definition of substitution for lay opinion for that of a physician.(Doc. 15, pp. 19-20). Plaintiff then proceeds to explain her position as to why the ALJ was incorrect to conclude that the opinions were not consistent with the physicians' own records, or the record as a whole.
The Commissioner does not directly respond to Plaintiff's argument that the ALJ improperly substituted his own lay opinion for that of a medical expert, and instead criticizes Plaintiff's recitation of the evidence that Plaintiff believes is consistent with the medical opinions. Specifically, the Commissioner argues:
Plaintiff recites a summary of her complaints to physicians, diagnoses, and medication adjustments (Pl.'s br. at 17-19). Such citations, without more, are insufficient. The objective medical evidence on examination simply did not document any significant abnormal findings. Further, even if Plaintiff can point to some selective evidence in support of her position, that is not enough to overcome the substantial evidence standard; "[t]he presence of evidence in the record that supports a contrary conclusion does not undermine the [ALJ's] decision so long as the record provides substantial support for that decision." Malloy v. Comm'r of Soc. Sec., 306 F. App'x 174, 177 (4th Cir. 2018) ("This court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. There were a number of conflicts in the evidence here, and we do not second guess the ALJ in resolving those conflicts.").(Doc. 18, p. 31).
To the extent Plaintiff argues that the ALJ improperly substituted his own judgment for a physician's opinion and that this error requires remand, she is correct that as a matter of law that "an ALJ must not substitute his own judgment for a physician's opinion without relying on other medical evidence or authority in the record." Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). Furthermore, an ALJ "may not make 'speculative inferences from medical reports'" and may reject an opinion outright "'only on the basis of contradictory medical evidence' and not due to his or her own credibility judgments, speculation, or lay opinion." Morales, 225 F.3d at 317.
For example, in Morales, the record included opinions by one nontreating psychologist (Dr. Jaffe), one nontreating psychiatrist (Dr. Linder), one treating psychiatrist (Dr. Erro), and two nonexamining psychologists (Dr. Barrett and Dr. Brennan). The opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro included significantly more serious mental limitations than the opinions of Dr. Barrett and Dr. Brennan. Also significant in Morales, Dr. Jaffe noted he suspected the claimant of malingering, but that malingering was a symptom of one of the claimant's diagnosed mental conditions. The ALJ in Morales accepted the opinions of Dr. Barrett and Dr. Brennan, and rejected all others based on the ALJ's own impression that the claimant was "manipulative, unmotivated, and possibly malingering," and that the claimant's IQ scores did not "comport with claimant appearance and demeanor." Id. at 314. The Third Circuit held that the ALJ's rejection of the opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro was not supported by substantial evidence because the ALJ's refusal to credit these opinions was not based on objective evidence, and instead was merely based on the ALJ's own "amorphous impressions." Id. at 318. After concluding that these opinions were improperly rejected, the Third Circuit remanded because "the ALJ did not give proper consideration to the opinions of Dr. Erro, Dr. Jaffe, and Dr. Lindner, all of which present counterveiling [sic] evidence to the Brennan/Barrett evaluation." Id. at 319.
Unlike in Morales, the ALJ in this case cited to evidence in the record and a lack of consistency with records from other providers in support of his decision to accord "partial" or "little" weight to these opinions. As such, I find that remand is not required because unlike Morales there is no evidence that the ALJ relied on his on "amorphous impressions," as opposed to objective evidence.
D. WHETHER THE ALJ PROPERLY EVALUATED PLAINTIFF'S SUBJECTIVE STATEMENTS ABOUT HER SYMPTOMS
Last, Plaintiff argues that the ALJ's analysis of her statements about her symptoms was flawed. Specifically, she argues:
Evaluation of credibility under the Act is not an amorphous concept, but rather must be made in accordance with the regulatory requirements. The above arguments with respect to the ALJ's findings regarding Plaintiff's impairments and work-related limitations are, naturally, also attacks on the ALJ's credibility finding. Plaintiff points out in this section of the brief only one additional fact with respect to that finding: her stellar work history.
Plaintiff had an impressive work history, with 41.5 years of uninterrupted earnings between 1973 and her alleged onset date. Tr. 160-161. Agency policy set forth in 20 C.F.R. § 404.1529(c)(3) and SSRs 96-8p and 16-3p requires that a claimant's exemplary work history be considered as part of a credibility assessment. Case law has long recognized the regulatory rational basis for this requirement; the courts that have so held have reasoned that it is unlikely someone would trade in their productive, and lucrative, work career for the far less lucrative "career" of receiving disability benefits. See, e.g., Taybron v. Harris, 667 F.2d 412 (3d Cir. 1981); Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
To be clear, Plaintiff is not suggesting that her strong work history necessarily entitled her to more weight, or that it must "trump" other factors; rather, her argument is straightforward: the ALJ was plainly required to consider this fact pursuant to Agency authority and did not do so. Plaintiff's lengthy work history is a factor that lends to her credibility, not detracts from it. Certainly, such a rule is a more than fair corollary to court decisions which have affirmed an ALJ's reliance on
a claimant's poor work history as detracting from that claimant's overall credibility. See e.g., Salles v. Comm'r of Soc. Sec., 229, F. App'x 140, 147 (3d Cir. 2007). The ALJ plainly erred when she failed to consider it at all. As with above, this error that can only be remedied by remand. See again Fargnoli, 247 F. 3d at 44, n. 7; Chenery, 332 U.S. at 196.(Doc. 15, pp. 25-27) (emphasis in original).
The Commissioner responded that this argument is "puzzling because the ALJ plainly stated that he 'also considered the claimant's activities of daily living previous work experience, and medical record, and the witness statements' in evaluating her claim (Tr. 52) (emphasis added)." (Doc. 18, p. 34). The Commissioner further argues that:
To the extent Plaintiff suggests that her description of her limitations should be found more persuasive because of her work history, "an ALJ does not err by failing to afford a claimant heightened credibility based solely on his work history." Schreibeis v. Comm'r of Soc. Sec., No. 10-1025, 2012 WL 11101, at *1 n. 1 (W.D. Pa. Jan. 3, 2012) (rejecting the work-history argument where "the ALJ found that any claim by Plaintiff that his limitations precluded him from working was not supported by the medical evidence of record or by Plaintiff's reported daily activities"); see also Gulin v. Comm'r of Soc. Sec., No. 13-01897 (JLL), 2014 WL 1466488, at *14 (D.N.J. Apr. 14, 2014) ("A claimant's testimony of subjective pain is not entitled to absolute credibility solely because he has an exemplary work history.")
Here the ALJ offered several reasonable explanations for why he found Plaintiff's subjective complaints less persuasive (Tr. 51-52). For example, the ALJ noted that the record did not reflect the level of treatment one would expect given the degree of Plaintiff's complaints. (Tr. 52). Plaintiff received minimal and conservative treatment (Tr. 52). The ALJ also noted that relatively normal to mild examination findings as well as evidence that medications are effective in controlling
Plaintiff's symptoms (Tr. 52). Thus where, as here, substantial evidence supports the ALJ's analysis, remand is not warranted, See e.g., Sanborn v. Comm'r of Soc. Sec., 613 F. App'x 171, 177 (3d Cir. 2015) ("Here, the ALJ's credibility determination was based on a broad view of the record and would have been supported by substantial evidence regardless of whether the ALJ had explicitly considered Sanborn's employment history. We see no basis for relief on this ground.").(Doc. 18, pp. 34-35).
The Commissioner's regulations define "symptoms" as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502; SSR 96-4p, 1996 WL 374187. A symptom, however, is not a medically determinable impairment, and no symptom by itself can establish the existence of such an impairment. SSR 96-4p, 1996 WL 374187. 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 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); 20 C.F.R. § 416.929(b); SSR 96-4p, 1996 WL 374187; 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 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). Although not listed as a factor in the regulations, a claimant's work history is a potentially relevant factor in the ALJ's evaluation of a claimant's subjective testimony. Freeman v. Colvin, No. 4:14-CV-01581, 2015 WL 3739077, at *7 (M.D. Pa. June 15, 2015). When a claimant has worked for a long period of time, his testimony about his or her work capabilities weighs in favor of crediting statements about those capabilities. Patton v. Astrue, No. 08-CV-00205, 2009 WL 2876715, at *3 (W.D. Pa. Sept. 8, 2009); see also Schwartz v. Berryhill, No. 17-CV-00854, 2018 WL 3575046, at *8 (W.D. Pa. Jul. 25, 2018). However, work history alone is not dispositive of credibility. Patton v. Astrue, No. 08-CV-00205, 2009 WL 2876715, at *3 (W.D. Pa. Sept. 8, 2009); see also Schwartz v. Berryhill, No. 17-CV-00854, 2018 WL 3575046, at *8 (W.D. Pa. Jul. 25, 2018). A claimant's work history is just one of many factors the ALJ considers in assessing an individual's subjective complaints, the ALJ is not required to equate a long work history with credibility. Patton v. Astrue, No. 08-CV-00205, 2009 WL 2876715, at *3 (W.D. Pa. Sept. 8, 2009); see also Schwartz v. Berryhill, No. 17-CV-00854, 2018 WL 3575046, at *8 (W.D. Pa. Jul. 25, 2018).
During the administrative hearing, the ALJ had the following discussion with Plaintiff about her past relevant work:
Q And I need to review your past work history with you. However, I'm only allowed to go back 15 years, so I'm only going back to 2002. And it looks from 2002 to 2014, you worked for the Commonwealth of Pennsylvania?(Admin. Tr. 63). Plaintiff's "41.5 years of uninterrupted work," was not discussed during the hearing. Counsel was given an opportunity to ask question—and did—the issue of Plaintiff's work history was not discussed.
A That's correct.
Plaintiff's earnings records show that she worked for the Commonwealth of Pennsylvania from 1998 through 2014. (Admin. Tr. 163-165). Although the ALJ did not mention the full work history in his decision, or during the hearing, his knowledge that Plaintiff worked for the Commonwealth of Pennsylvania between 2002 and 2014, suggests he did review Plaintiff's earnings record. The ALJ also provided the following detailed explanation for his assessment that Plaintiff's statements about the intensity, persistence, and limiting effects of her impairments and symptoms were not entirely credible:
Although the record shows that the claimant has some health-related issues, it contains no consistent evidence showing that the claimant's impairments are of the type or nature that would preclude all employment by the claimant and thus require a finding of disability at any point during the period under review.(Admin. Tr. 51-52). I agree with the Commissioner that, although not well explained in the decision, there is enough to show that the ALJ considered Plaintiff's work history when evaluating the credibility of her subjective statements about her symptoms and limitations. Furthermore, 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. There is, however, no evidence that the ALJ discounted Plaintiff's statements for no reason, or the wrong reason. Accordingly, I find that remand is not required for further consideration of this factor. V. RECOMMENDATION
The claimant's medical history is not necessarily consistent with her allegation of disability, as the record does not reflect the level of medical treatment one would expect for a disabled individual. For instance, the claimant rarely sought or received treatment, and the treatment received was relatively conservative. In addition, the claimant takes medication for the alleged impairments, which weighs in the claimant's favor, but the limited medical record reveals that when compliant, the medications have been relatively effective in controlling the claimant's symptoms. Further, the medical evidence of record consistently indicated relatively normal to mild examination findings.
In addition, the claimant has made inconsistent statements regarding matters relevant to this application. For instance, she reported no prescription brace usage (Ex. 4E/15), but later testified that she used a prescription brace. She also reported medication side effects (Ex. 4E/16), but later testified no medication side effects. Hence, although inconsistent information provided by the claimant may not be the result of a conscious intention to mislead, nevertheless the inconsistencies suggest that the information provided by the claimant generally may not be entirely accurate or reliable.
In sum, the undersigned finds the above residual functional capacity assessment is supported by the record when considered as whole. The claimant has severe back, hip, and migraine impairments that affect the claimant's ability to perform certain exertional and non-exertional activities, as discussed above. The undersigned has considered the reports and assessments of the State agency medical consultant as well as other treating, examining and non-examining medical sources. The undersigned has also considered the claimant's activities of daily living, previous work, and medical records, and the witness' statement. The undersigned finds that the claimant's impairments are not fully disabling and that the claimant retains the capacity to perform work activities with the limitations set forth above.
IT IS RECOMMENDED that Plaintiff's request for the Court to enter judgment under sentence four of the 42 U.S.C. § 405(a) 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.
(3) The clerk of court should close this case. Date: January 27, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
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.Date: January 27, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge