Opinion
Civil No. 3:16-CV-1929
03-29-2017
JESSICA LONGO METZGER, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security Defendant.
(Judge Nealon)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
On May 3, 2013, Jessica Metzger filed a claim for disability benefits pursuant to Title II of the Social Security Act. (Tr. 12.) In her application, Metzger originally alleged that she had become disabled in February of 2013, although Metzger later orally amended the outset date of her disability to April 1, 2012. (Id.) In this disability application, the plaintiff alleged that she had become completely disabled at the age of 29 and had remained disabled through the date of the March 3, 2015, disability administrative hearing, when she was only 32 years of age. Thus, Metzger was considered a younger worker under the Commissioner's regulations. 20 C.F.R. § 404.1563(c). Prior to the alleged onset of her disability, Metzger had worked in a number of semi-skilled, sedentary jobs, including working as a customer service representative, a billing clerk, a medical billing clerk, and a technical support worker. (Tr. 19. 59-60, 152.)
Metzger's disability application was based upon complaints of chronic pelvic pain, complaints which Metzger associated with a number of gynecological conditions. The medical support for these claims, however, was sparse and in some instances contradictory. Thus, there were few treatment notes dated prior to Metzger's April 1, 2012, alleged onset date, and these records simply showed that Metzger received some treatment for coccyx bone pain and interstitial cystitis. (Tr. 365-66, 381, 383-85.) Following the birth of a child in 2012 (Tr. 204.), Metzger received treatment for menorrhagia and pelvic floor pain. Specifically, in December 2012 Metzger received a caudal epidural steroid injection. (Tr. 176.) During this same time frame, Metzger was also seen by saw Gail Burgey, M.D., for annual gynecological examinations. At that time Dr. Burgey reported that Metzger was "overall well," (Tr. 249.), was taking medication for pelvic floor muscle pain, and was requesting information regarding possible ablation and sterilization. (Tr. 249.) While Metzger had reported taking medication for pelvic pain, her pelvic examination revealed no tenderness and Dr. Burgey followed a conservative course of treatment, instructing Metzger to continue her pain management regimen. (Tr. 252.)
In March of 2013, Metzger underwent a tubal ligation procedure. (Tr. 201.) While medical records indicate that she recovered well from this procedure Metzger continued to complain of pelvic pain. (Tr. 254.) On August 19, 2013, these complaints led to emergency room treatment of Metzger when she presented at the hospital complaining of severe pelvic discomfort. At that time Metzger exhibited pelvic tenderness and pain, but after receiving intravenous pain medication was discharged. (Tr. 220, 296-7, 307.) One month later, Metzger underwent a laparoscopic hysterectomy. (Tr. 321.)
Despite these additional medical procedures and treatments, Metzger continued to complain of on-going pelvic pain in 2014, albeit pain whose cause could not be readily determined by medical professionals. Thus, in of February 2014, Metzger began treating at MJA Healthcare, PC, pain management physicians, for her ongoing pelvic pain. (Tr. 342.) Metzger continued to complain of pelvic pain during repeated examinations at MJA Healthcare, PC, through September of 2014. (Tr. 345-52.) According to Metzger, pain medication provided no relief for her discomfort, but she felt better when lying flat on her back. (Tr. 342.)
While Metzger lodged these complaints of chronic pain, her medical history during this period of time was profoundly mixed and equivocal. For example, treating staff initially assessed Metzger with chronic pelvic pain and referred her for a CT scan. That diagnostic test, however, was essentially normal and unremarkable. (Tr. 342-43, 353.) Further, medical staff noted an inconsistency between Metzger's reported pain levels and her actual conduct and activities. Thus, during a follow up appointment in March 2014, Metzger stated that she had not been taking any pain medication in several weeks, but the physician observed that she did not appear to be in any pain or discomfort. (Tr. 344.) In addition, Metzger moved around freely without any discomfort and had no abdominal tenderness on examination. (Tr. 344.) Further, despite Metzger's complaints of continuing pelvic pain throughout the Fall of 2014, her physical examinations remained unremarkable. (Tr. 349-51.)
On August 22, 2014, Metzger sought a second opinion concerning her reported pelvic pain, and consulted with Tola Frashokum, M.D. (Tr. 337-40.) While Metzger's examination and test results were largely unremarkable, Dr. Frashokum assessed Metzger with high tone pelvic floor dysfunction and pudendal neuralgia, prescribed Valium vaginal suppositories, and scheduled her for pudendal nerve blocks and a course of physical therapy. (Tr. 337-40.) Metzger then began of physical therapy at the Johns Hopkins Hospital Department of Physical Medicine and Rehabilitation. (Tr. 393.)
Notably, none of these treating or referral physicians ever described Metzger's condition as disabling in any fashion. Indeed, oftentimes physicians appear to have been at a loss to fully explain Metzger's reported level of pain, since no organic cause of this discomfort could be identified, and Metzger's reports of pain were occasionally described as inconsistent with her movements, activities, and demeanor. While there are no medical opinions which supported Metzger's disability claim, there was one opinion which contradicted that claim. In October of 2013, a state agency physician, Dr. David Hutz, opined after reviewing Metzger's medical record that none of her gynecological complaints rose to the level of a severe impairment, the initial basic threshold for social security disability consideration. (Tr. 71-2.)
It was against the backdrop of this uneven and sparse medical record much of which conflicted with Metzger's claim of disability that Metzger pursued this disability claim. At Metzger's request, a hearing was conducted in connection with this disability application before an Administrative Law Judge (ALJ) on March 3, 2015. (Tr. 24-68.) At this hearing Metzger waived her right to counsel and elected to represent herself. Metzger testified in support of this disability claim, and the ALJ also heard testimony from an impartial vocational expert. (Id.) In her testimony Metzger described her pelvic pain, and the combination of medications and physical therapy which she was undergoing for that condition. (Id.) Metzger also stated that she considered her condition transient although she could not predict when her condition would improve, stating: "I know that [physical therapy] will eventually get me to a point where I should be able to work again at some point." (Tr. 57.) At the hearing, the vocational expert also testified in response to a hypothetical question posed by the ALJ that, if Metzger was capable of performing a range of light work, there were jobs in the national economy which she could perform. (Tr. 58-66.) The vocational expert further testified that Metzger's past employment as a receptionist, billing clerk, and a customer service representative or technician all involved semi-skilled sedentary work, the lowest level of exertional labor identified by Social Security regulations. (Id.)
Following this hearing, on March 16, 2015, the ALJ issued a decision denying Metzger's application for disability benefits. (Tr. 12-20.) In this decision, denying benefits to the plaintiff, the ALJ found at Step 1 of the five step sequential process for evaluating disability claims that Metzger met the Act's insured requirements. (Tr. 14.) At Step 2 the ALJ concluded that Metzger suffered from severe gynecological impairments, including pelvic floor dysfunction, pudendal neuralgia, uterine fibroids, and other uterine conditions. (Tr. 14.) In reaching this conclusion the ALJ noted, consistent with the Social Security regulations, that these conditions were deemed severe only insofar as they have a more than minimal effect upon Metzger's ability to perform basic work activities. (Id.) Moreover, in making this decision, the ALJ afforded little weight to the only medical opinion of record in this case, the opinion of Dr. Hutz, who had found that none of Metzger's complaints rose to the level of a severe impairment. (Tr. 19.) This was a highly favorable ruling for Metzger which allowed her claim to proceed forward. At Step 3 of this sequential analysis, the ALJ concluded that none of Metzger's claimed impairments met a listing which would define her as per se disabled. (Tr. 16.)
In the absence of any persuasive medical opinion evidence supporting Metzger's disability claim, the ALJ then reviewed all of the medical evidence, which presented a mixed and equivocal picture of the degree to which this discomfort was disabling, and canvassed Metzger's history of reported activities, which indicated that she was able to assist in light housekeeping, periodic pet care, perform some daily child care, and occasionally lift up to 30 pounds. (Tr. 16-19.) On the basis of this analysis of the medical and factual record, the ALJ concluded that Metzger still retained the residual functional capacity to perform a range of light work, the second lowest level of exertional labor recognized by Social Security regulations. Relying upon the vocational expert's testimony that Metzger's prior employment entailed semi-skilled sedentary work, the lowest form of exertional labor recognized by Social Security regulations, the ALJ concluded at Step 4 of this sequential analysis that Metzger could perform her past work, and denied this disability claim. (Tr. 17-19.)
This appeal followed. (Doc. 1.) On appeal Metzger argues that the ALJ erred in fashioning a residual functional capacity benchmark for Metzger in the absence of any specific medical opinion which endorsed that residual functional capacity analysis. Metzger also contends that the ALJ erred in failing to order a consultative medical opinion prior to deciding this case. Metzger advances these two claims, though, in an unusual factual setting, where the only medical opinion evidence categorically rejected any claim of disability by the plaintiff, but the ALJ largely discounted that opinion, and gave Metzger every benefit of the doubt in making the legal determination of her disability status. However, even after the ALJ resolved all reasonable factual doubts in Metzger's favor, substantial evidence still showed that Metzger could return to her past sedentary employment.
On these facts, for the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
II. Discussion
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court, therefore, is not whether a plaintiff is disabled, but whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.")(alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D.Pa. 1981)("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . ."). Furthermore, in determining if the ALJ's decision is supported by substantial evidence the court may not parse the record but rather must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
Finally, any evaluation of an administrative agency disability determination must also take into account the fundamental principle that: " 'No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result.' " Moua v. Colvin, 541 F. App'x 794, 798 (10th Cir. 2013) quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989). Thus, ALJ determinations in Social Security appeals are subject to harmless error analysis, Seaman v. Soc. Sec. Admin., 321 F. App'x 134, 135 (3d Cir. 2009) and "the 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, 409, 129 S. Ct. 1696, 1706, 173 L. Ed. 2d 532 (2009).
B. Initial Burdens of Proof , Persuasion and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §416.905(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §416.945(a)(2). Additionally, in making this RFC assessment the ALJ is required to evaluate all relevant evidence, Fargnoli v. Massanari, 247 F.3d 34, 40-41 (3d Cir.2001), and explain her reasons for rejecting any such evidence. Burnett v. Commissioner of Social Security Administration, 220 F.3d 112, 122 (3d Cir.2000).
There is an undeniable medical aspect to a residual functional capacity determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that she experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that " '[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant'. Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D.Pa. Mar. 4, 2013)." Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778-79 (W.D. Pa. 2013). In other instances, particularly when an ALJ imposes greater medical restrictions upon a claimant in formulating an RFC than those found by a physician, it has been held that: "There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for a residual functional capacity assessment typically arise in the factual setting where a medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. Thus, when an ALJ is saying that a claimant can do more than the medical source opinion states, courts exercise caution and suggest that only rarely can an ALJ unilaterally impose an RFC on a claimant that is less restrictive than the residual functional capacity found by the medical professional. Construed in this light, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability.
In contrast, when an ALJ is relying upon other evidence to conclude that the claimant can do less than a medical source opined, or when an ALJ fashions a residual functional capacity determination in the absence of any medical opinion evidence, courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's residual functional capacity is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.2002).
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. §1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R. §416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, the burden of proof 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. §416.912(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks Governing ALJ's Decisions Concerning Whether to Order a Consultative Examination
As a general matter, an ALJ has a responsibility to assist a pro se claimant in fully and fairly developing the factual record relating to a disability claim. See Sanchez v. Comm'r of Soc. Sec., 271 F. App'x 230, 233 (3d Cir. 2008). In some instances, as part of this process the ALJ may order a consultative examination of the claimant. However, "[t]he decision to order a consultative examination is within the sound discretion of the ALJ. Thompson v. Halter, 45 Fed.Appx. 146, 149 (3d Cir.2002); 20 C.F.R. §§ 404.1517, 416.917." Basil v. Colvin, No. CIV.A. 12-315E, 2014 WL 896629, at *2 (W.D. Pa. Mar. 6, 2014). Further, the exercise of this discretion is linked to an informed assessment of the evidence in each case. Thus:
An "ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision." Id. Other circumstances necessitating a consultative examination include situations where a claimant's medical records do not contain needed additional evidence, or when the ALJ needs to resolve a conflict, inconsistency or ambiguity in the record. See, 20 C.F.R. §§ 404.1519(a), 416.919(a).Basil v. Colvin, No. CIV.A. 12-315E, 2014 WL 896629, at *2 (W.D. Pa. Mar. 6, 2014). See Rissmiller v. Colvin, No. CV 15-5731, 2016 WL 6107209, at *5 (E.D. Pa. Oct. 18, 2016). Therefore, a determination of whether a consultative examination is needed in a particular is a discretionary judgment by an ALJ, and is a judgment that should be firmly rooted in an assessment of the evidence as a whole. Ultimately, "the ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision." Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002).
D. Substantial Evidence Supports the ALJ's Findings in This Case
Judged against these legal guideposts, it is submitted that substantial evidence supports the ALJ's RFC assessment and the related determinations made by the ALJ in this case.
At the outset, Metzger assails this decision by arguing that the ALJ erred in giving little weight to the only medical opinion of record in this case, and then fashioning a residual functional capacity for the plaintiff in the absence of any specific medical opinion evidence. Whatever appeal this argument might have as an abstract legal matter, however, is thoroughly undercut when this contention is examined in the factual context of this case.
On this score, Metzger's argument fails to account for the facts themselves, including the fact that the sole medical opinion in this case found that she did not suffer from any severe impairments, a finding that would have categorically denied her disability claim from the outset. Thus, the ALJ's decision to afford this opinion limited weight was in no way prejudicial to Metzger's case. Quite the contrary, it was a highly favorable ruling, which does not now support a claim of error in this appeal.
Furthermore, once the ALJ made this favorable ruling which permitted Metzger's claim to proceed forward beyond the threshold issue of whether she suffered from any severe impairments, substantial evidence supported a finding that Metzger was not wholly disabled by these gynecological complaints. In fact, the medical record is extremely equivocal on this point, with repeated tests and examinations unable to confirm an organic basis for Metzger's claims of severe and disabling pain. Furthermore, as the ALJ aptly observed, these medical records noted an inconsistency between Metzger's reported pain levels and her actual conduct and activities. Finally and notably, the medical record was devoid of any medical opinion evidence imposing significant exertional limitations upon Metzger.
Despite these failures of proof by Metzger, the ALJ proceeded in a careful fashion in this case, giving Metzger every reasonable benefit of the doubt when fashioning a residual functional capacity for this claimant. That RFC assessment ultimately concluded that Metzger could perform a range of light work, a finding which drew ample support from the medical record taken as a whole, and was far more favorable to the claimant than the sole medical expert opinion, which concluded that none of her complaints were severe. Relying upon the undisputed evidence which showed that Metzger had worked in a series of sedentary positions in the past, jobs which placed the lowest of exertional demands upon the plaintiff, the ALJ reasonably concluded at Step 4 of this analysis that Metzger's disability claim failed since she could perform her past work.
Thus, a dispassionate assessment of this ruling reveals that there was a significant failure of proof on Metzger's part in documenting her claims that she was totally disabled at age 29 due to these gynecological complaints. Quite the contrary, the greater weight of the medical evidence, and the only medical opinion evidence, rebutted her claim of disability. Notwithstanding these failures of proof, the ALJ consistently made determinations which favored Metzger, but ultimately found that even when the evidence was construed in a light which was highly favorable to the claimant, her claim failed. While Metzger insists that the ALJ could not reach this conclusion without a specific supporting medical opinion, we do not take such a wooden view of the administrative adjudication process. Rather, we note that, in a case such as this, when an ALJ describes an RFC which imposes medical limitations which favor a claimant and exceed those found by medical experts: "There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Further, in a case like the instant case where there is no evidence of any medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).
In this case we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Instead, we must simply ascertain whether the RFC assessment is support by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and "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). Judged by this deferential standard of review an RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.2002). Recognizing that ""[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result," Moua v. Colvin, 541 F. App'x 794, 798 (10th Cir. 2013) quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989), and that "the 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, 409, 129 S. Ct. 1696, 1706, 173 L. Ed. 2d 532 (2009), we conclude that Metzger has not shown that the fashioning of this highly favorable residual functional capacity assessment by the ALJ unfairly prejudiced the consideration of her disability claim simply because the evidence would not support that claim even when judged in this very favorable light.
Nor do we find that the ALJ erred in failing to order a consultative examination in this case. Such decisions rest in the sound discretion of the ALJ but "the ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision." Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002). In this case we find that there has been no abuse of discretion by the ALJ because Metzger did not show that a consultative examination was necessary under Social Security regulations in order to reach a disability decision. Thus the meager medical showing made by Metzger simply did not illustrate that an examination was needed "to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on [this] claim." 20 C.F.R. § 404.1519a(b). Quite the contrary, when the evidence is considered as a whole rather than revealing conflicts in the proof the existing evidence seemed to consistently show that the plaintiff retained some limited ability to perform gain activity of a light or sedentary nature. Further, while this medical evidence was unpersuasive in that it did not support Metzger's claim of total disability, it was not insufficient to make a judgment on this disability claim.
Thus, the evidence taken as a whole supported a finding that Metzger suffered from some physical impairments but nonetheless retained the capacity to perform a range of light and sedentary work like the work she had previously performed. Given the deferential standard of review which applies to appeals of Social Security disability determinations, this finding that substantial evidence supported the ALJ's decision, calls for the affirmance of this decision. Therefore, we recommend that the district court affirm this decision, direct that judgment be entered in favor of the defendant, and instruct the clerk to close this case.
III Recommendation
Accordingly, for the forgoing reasons, IT IS RECOMMENDED that the district court AFFIRM the Commissioner's decision, direct that judgment be entered in favor of the defendant, and instruct the clerk to close this case.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Submitted this 29th day of March, 2017.
s/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge