Opinion
CIVIL NO.: 3:18-CV-01559
05-28-2019
JOSEPH T. PETERS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Chief Judge Conner) () REPORT AND RECOMMENDATION
I. Introduction.
This is a social security action brought under 42 U.S.C. § 405(g) (2018). The plaintiff, Joseph T. Peters ("Peters"), seeks judicial review of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying his claim for disability benefits. We have jurisdiction over the case pursuant to 42 U.S.C. § 405(g). We conclude that the Commissioner's decision was supported by substantial evidence and accordingly recommend that the Court affirm the decision on that basis.
II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 8-1 to 8-11. On January 11, 2016, Peters applied for disability insurance benefits, alleging that he has been disabled since March 1, 2015. Admin. Tr. at 112. The Social Security Administration denied Peters's claim initially on February 25, 2016. Id. at 98. Following the initial denial of Peters's claim, the case went before Administrative Law Judge Therese A. Hardiman ("ALJ"), who concluded, on October 27, 2018, that Peters was not disabled and denied him benefits on that basis. Id. at 26. Peters requested review of the ALJ's decision before the Social Security Administration's Appeals Council, which denied his request for review on May 31, 2018. Id. at 2. Peters then filed a complaint with this court on August 6, 2018, seeking judicial review of the Commissioner's final decision to deny him benefits. Doc. 1.
The facts of the case are well known to the parties and will not be repeated here. Instead, we will recite only those facts that bear on Peters claim.
III. Legal Standards.
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 substantial evidence supports the findings of the final decision maker. See 42 U.S.C. § 405(g) (2018); 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 is "more than a mere scintilla." Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "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.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1994) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
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 an administrative agency's findings from being supported by substantial evidence." Port Norris Express Co. v. Interstate Commerce Comm'n, 697 F.2d 497, 502 (3d Cir. 1982) (quoting Consolo v. Fed. Mar. 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) (citing Smith, 637 F.2d at 970).
The question before this court, therefore, is not whether Peters was disabled, but whether substantial evidence supports the Commissioner's finding that he was not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive disability insurance benefits pursuant to Title II of the Social Security Act, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically terminable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A) (2018); see also 20 C.F.R. §§ 404.1505(a), 416.905(a) (2018). 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), 1382c(a)(3)(B); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). In addition, 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).
The ALJ follows a five-step sequential-evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the ALJ must sequentially determine the following: (1) whether the claimant is engaging 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), 416.920(a)(4).
The ALJ must also assess a claimant's RFC between steps three and four. The RFC is "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. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft, 181 F.3d at 359 n.1); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 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 impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
During the five-step sequential-evaluation process, "the claimant bears the burden of proof at steps one through four and the Commissioner bears the burden of proof at step five." Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010). Once the burden has been met by the claimant at steps one through four, it shifts to the Commissioner at step five, who "must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity." Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).
IV. The ALJ's Decision Denying Peters's Claim.
On October 27, 2018, the ALJ issued a decision denying Peters benefits. Admin. Tr. at 26. At step one of the five-step sequential-evaluation process, the ALJ found that Peters had not engaged in substantial gainful activity since March 1, 2015. Id. at 18. At step two, the ALJ found that Peters had the severe impairments of degenerative disc disease and degenerative joint disease of the cervical spine. Id.
At step three of the sequential-evaluation process, the ALJ found that Peters did not have an impairment, or combination of impairments, that met, or was medically equivalent to, an impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 20. In her analysis, the ALJ specifically considered whether Peters had "nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis" under listing 1.04 or a "disorganization of motor function in two extremities" under listing 11.14. Id. at 21-22. The ALJ found that neither was sufficient to meet, or be medically equivalent to, a listed impairment. Id.
Between steps three and four of the sequential-evaluation process, the ALJ concluded that Peters had the RFC:
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except that he can lift and carry ten pounds or occasionally 20 pounds; he can sit, stand, and walk for a total of six hours each in an 8-hour workday; he is limited in how much he can push and pull using his right upper and lower extremities; he is also limited to the occasional climbing (but cannot climb on ladders), balancing, and stooping; he cannot perform overhead reaching; and he must avoid extreme temperatures, humidity, vibration, fumes, and hazards.Id. at 21.
During the RFC analysis, the ALJ noted Peters's contention that he was disabled due to pain in his arm and neck, "difficulties lifting, reaching, walking, using his right arm, concentrating, and completing tasks." Id. at 21-22. The ALJ also noted Peters's contention that he had limited daily activity, could only drive short distances, and had to rely on his wife for many day-to-day activities. Id. at 22. The ALJ concluded that the "claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Id. at 22. The ALJ noted that Peters had been diagnosed with cervical degenerative disc disease/degenerative joint disease, but noted that the treatment records of Dr. Prisuta, Peters's primary care provider, reflected "longitudinally benign findings." Id. at 22. "Overall," the ALJ concluded, "the longitudinal evidence of record does not support the claimant's allegations concerning the intensity, persistence, and limiting effects of his symptoms." Id. at 23.
In making her RFC determination, the ALJ gave great weight to the opinion of Dr. Wander, the state agency medical consultant, and gave little weight to the functional capacity evaluation ("FCE") or the opinions of Dr. Prisuta and Dr. Turner concurring with the FCE. Id. In assigning great weight to Dr. Wander's opinion, the ALJ noted Dr. Wander's findings that Peters "could perform a range of light exertion work with limited pushing/pulling with the right arm but no postural or environmental limitations," and found that Dr. Wander's opinion was "generally consistent with the longitudinal record, including [Peters's] routine and conservative treatment and his relatively benign physical exam findings." Id. The ALJ noted that Peters "has positive compression test and Spurling's noted with degenerative disc disease and osteophytes on imaging but no nerve root compression and no focal motor or sensory deficits." Id. Although Dr. Wander's "opinion was rendered prior to the receipt of later evidence at the hearing level," the ALJ found that "it remain[ed] well supported and consistent with the evidence of record." Id.
In assigning little weight to Dr. Prisuta and Dr. Turner's concurrence with the FCE, the ALJ explained that the FCE was "a one-time evaluation that relies on and requires the claimant's cooperation" and was completed by a physical therapist whom the ALJ noted was not a "medically acceptable source." Id. at 24. While the FCE "noted the ability to perform below the sedentary range of work," the ALJ noted that Dr. Prisuta and Dr. Turner had concurred with the FCE simply by providing "'check the box' forms . . . without providing any explanation by way of medically acceptable signs, laboratory or clinical findings." Id. at 25. The ALJ noted that Dr. Prisuta's concurrence with the FCE was not supported by her treatment records which "reflect benign or normal longitudinal findings and do not support the nature and extent of functional limitations contemplated in the FCE or the check the box opinions." Id. The ALJ noted that Dr. Turner's concurrence did not "set forth any specific limitations" and failed to "set forth any objective evidence or clinical findings to support" concurrence with the FCE. Id. "Thus, the only opinion is the conclusory opinion that the claimant was unable to work" which is an opinion "clearly reserved to the Commissioner." Id. Thus, the ALJ found that Dr. Prisuta and Dr. Turner's opinions should be "afforded little weight." Id.
At step four of the sequential-evaluation process, the ALJ found that Peters was unable to perform any past relevant work. Id. At step five, the ALJ noted that Peters was forty-three years old at the time of his decision, had at least a high school education, and could communicate in English. Id. at 25. The ALJ concluded that considering his age, education, work experience, and RFC, Peters could perform a significant number of jobs in the national economy. Id. This was based on the testimony of the Vocational Expert ("VE"), who testified that Peters could work as a "personal attendant," "usher/ticket taker" or "general office clerk." Id. at 26-27. In sum, the ALJ concluded that Peters was not disabled. Id. at 26.
V. Discussion.
On appeal to this court, Peters challenges the Commissioner's decision, arguing that the ALJ's determination is not based on substantial evidence because the ALJ disregarded the FCE and rejected the opinions of Peters's treating physicians in favor of Dr. Wander's opinion. Doc. 10 at 4.
A. The ALJ Did Not Err by Assigning Little Weight to the FCE.
Peters argues the ALJ erred by assigning little weight to the FCE because the findings in the FCE "were directly related to [Peters's] impairment severity and functional effects." Doc. 10 at 5. Peters further argues the ALJ erred because his treating physicians—Dr. Prisuta and Dr. Turner—concurred with the results of the FCE. Id.
The Commissioner argues the ALJ was not required to give any weight to the FCE's conclusion that Peters should be limited to less than sedentary work because such a disability determination is reserved solely to the ALJ. Doc. 13 at 10. The Commissioner argues that the other information in the FCE was only entitled to weight to the extent that it was supported by the record, and that the ALJ therefore weighed the information appropriately. Id. The Commissioner further argues that Dr. Prisuta and Dr. Turner's concurrence with the FCE was not entitled to any controlling weight because their opinions were given in the context of check-the-box forms without any supporting findings or explanations. Id. at 15. Finally, the Commissioner argues the ALJ clearly explained her decision to afford little weight to the check-the-box concurrences of Dr. Prisuta and Dr. Turner because the concurrences were not supported by the record. Id. at 17-18.
"[O]nly 'acceptable medical sources' can be considered treating sources . . . whose medical opinions may be entitled to controlling weight," SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006), and "a physical therapist is not an acceptable medical source." Hatton v. Comm'r of Soc. Sec. Admin., 131 F. App'x 877, 878 (3d Cir. 2005) (citing 20 C.F.R. 404.1513(a)); see also 20 C.F.R. §§ 404.1502, 416.902. "Consequently, the rules for evaluating acceptable medical source statements do not apply" to an opinion given by a physical therapist like the FCE in this case. See Hatton, 131 F. App'x at 878 (citing 20 C.F.R. § 404.1513(d). "Statements from a physical therapist are entitled to consideration as additional evidence, but are not entitled to controlling weight." Id. (citing 20 C.F.R. § 404.1513(d)); accord Barrows v. Berryhill, No. 3:17-CV-01383, 2018 WL 3543848, at *8 (M.D. Pa. June 28, 2018), report and recommendation adopted, No. 3:17-CV-01383, 2018 WL 3536722, at *1 (M.D. Pa. July 23, 2018).
SSR 06-03p was rescinded on March 27, 2017, but the rescission was only effective for claims filed on or after that date. Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15263, 15263 (Mar. 27, 2017). Thus, because Peters applied for benefits on January 11, 2016, SSR 06-03p still applies to his claim. --------
An ALJ may use evidence from sources other than acceptable medical sources "to show the severity of [an] individual's impairment(s) and how it affects the individual's ability to function." SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). In evaluating such evidence, the ALJ should consider a number of factors, including (1) "[h]ow long the source has known and how frequently the source has seen the individual"; (2) "[h]ow consistent the opinion is with other evidence"; (3) "[t]he degree to which the source presents relevant evidence to support an opinion"; (4) "how well the source explains the opinion"; (5) "[w]hether the source has a specialty or area of expertise related to the individual's impairment(s)"; and (6) "[a]ny other factors that tend to support or refute the opinion."
Here, the ALJ clearly explained why she afforded little weight to the FCE. Specifically, the ALJ assigned the FCE little weight because it did not set forth "any medically acceptable signs or laboratory findings to support" the limitations it suggested. Admin. Tr. at 24. The ALJ also noted that the FCE was inconsistent with Dr. Prisuta's records, which "reflect benign or normal longitudinal findings and do not support the nature and extent of functional limitations contemplated in the FCE." Id. Given this clear explanation as to why the FCE was not supported by the other evidence in the record, we find that the ALJ's opinion was supported by substantial evidence.
Furthermore, the fact that Dr. Prisuta and Dr. Turner concurred with the findings of the FCE does not change our conclusion that the ALJ's decision to discount the FCE was supported by substantial evidence. Although Dr. Prisuta and Dr. Turner concurred with the findings of the FCE, they did so "without providing any explanation by way of medically acceptable signs or laboratory findings to support each of the limitations." Id. at 25. Dr. Prisuta and Dr. Turner were both sent a letter by Peters's counsel stating that "[i]t would be most beneficial to Mr. Peter's [sic] claim for Social Security disability benefits if you would review the report and check the appropriate box below." Id. at 678, 690. Without providing any explanation, both Dr. Prisuta and Dr. Turner responded to the letter by checking the box next to the statement "I concur with the findings of the attached Certified Functional Capacity Evaluation." Id.
"Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best." Mason, 994 F.2d at 1065; accord Drejka v. Comm'r of Soc. Sec., 61 F. App'x 778, 782 (3d Cir. 2003). Thus, "[t]he ALJ was doubtless correct in affording little weight" to the check-the-box forms filled out by Dr. Prisuta and Dr. Turner. Willis v. Colvin, No. 1:12-CV-02503, 2014 WL 1405080, at *14 (M.D. Pa. Apr. 10, 2014). In affording little weight to Dr. Prisuta and Dr. Turner's concurrence with the FCE, the ALJ noted that their concurrences were nothing more than check-the-box forms in which the doctors had not provided "any explanation by way of medically acceptable signs, laboratory or clinical findings." Admin. Tr. at 24. Since such check-the-box forms are weak evidence at best, Mason, 994 F.2d at 1065, our conclusion is unchanged that the ALJ's decision to afford little weight to the FCE was supported by substantial evidence.
B. The ALJ Did Not Err by Crediting Dr. Wander's Opinion.
Peters additionally argues that the ALJ erred by crediting Dr. Wander's opinion instead of the FCE. Doc. 10 at 4. Peters argues that the ALJ "glossed over the fact that Dr. Wander didn't have the benefit of reviewing all of the evidence of record at the time he rendered that opinion." Id. The Commissioner argues that the ALJ properly credited Dr. Wander's opinion because the opinion was consistent with the other medical evidence in the record. Doc. 13 at 20.
"[B]ecause state agency review precedes ALJ review, there is always some time lapse between the consultant's report and the ALJ hearing and decision." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3rd Cir. 2011). The state agency medical consultant is only required to change his report "where 'additional medical evidence is received that in the opinion of the ALJ'" might change the consultant's conclusion. Id. (emphasis in original) (quoting SSR 96.6p, 1996 WL 374180, at *4 (July 2, 1996)).
In this case, the ALJ acknowledged that Dr. Wander's opinion "was rendered prior to the receipt of later evidence at the hearing level" but concluded that Dr. Wander's opinion "remains well supported and consistent with the evidence of record." Admin. Tr. at 23. Thus, rather than glossing over the fact that Dr. Wander's opinion was not based on a complete evidentiary record, the ALJ acknowledged that fact and nevertheless concluded that none of the new evidence would change the consultant's conclusion. Moreover, the ALJ clearly explained why she afforded significant weight to Dr. Wander's opinion rather than the FCE or the check-the-box forms completed by Dr. Prisuta and Dr. Turner. See id. at 23- 24. The ALJ explained that Dr. Wander's opinion was "generally consistent with the longitudinal record, including the claimant's routine and conservative treatment and his relatively benign physical exam findings." Id. at 23. The ALJ also noted that Peters had a "positive compression test and Spurling's noted with degenerative disc disease and osteophytes on imaging but no nerve root compression and no focal motor or sensory deficits." Id. We therefore find that the ALJ's decision to afford great weight to Dr. Wander's opinion was supported by substantial evidence.
VI. Recommendation.
For the foregoing reasons, we find that the Commissioner's decision to deny Peters benefits was supported by substantial evidence and accordingly recommend that the Commissioner's final judgment be affirmed.
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.
Submitted this 28th day of May, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge