Opinion
CIVIL NO. 4:19-CV-1394
07-31-2020
CHRISTOPHER M. SILBAUGH, Plaintiff v. ANDREW SAUL, Commissioner of Social Security Defendant
(BRANN, D.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
Plaintiff Christopher M. Silbaugh ("Plaintiff"), 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 his 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
Plaintiff previously filed an application seeking benefits under Title II on May 15, 2012. An ALJ denied his application for benefits on October 25, 2013. Plaintiff did not appeal the ALJ's decision to the Appeals Council. Instead, Plaintiff filed a new application for Social Security disability benefits - which was also denied. Plaintiff then filed a Complaint in this Court seeking review of the ALJ's November 20, 2018 denial of benefits for his second application for Social Security disability benefits. In the new application for benefits, Plaintiff again alleged an onset date of January 1, 2011. Plaintiff's onset date cannot be January 1, 2011, because of the ALJ's unfavorable decision on his prior application for benefits. Thus, the relevant period for Plaintiff's claim begins on October 26, 2013 (the day after Plaintiff's prior unfavorable decision) and ends on December 31, 2014 (Plaintiff's last date insured).
A little over two years after his first denial, Plaintiff protectively filed a second Application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 86). In this application, Plaintiff alleged he became disabled as of January 1, 2011, when he was 35 years old, due to the following conditions: recurring osteomyelitis/discitis; chronic neck pain; degenerative disc C4-C5; numbness with cervical radiculopathy; and lumbar and cervical arthropathy. (Admin. Tr. 161). Plaintiff alleges that the combination of these conditions affects his ability to lift, bend, stand, walk, sit, kneel, talk, climb stairs, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. (Admin. Tr. 189). Plaintiff has a high school education and is able to communicate in English. (Admin. Tr. 17). Before the onset of his impairments, Plaintiff worked as an industrial truck operator (i.e. a forklift driver). Id.
As indicated above, Plaintiff originally filed for SS Disability on May 15, 2012 (Tr. 64). That application for disability benefits was denied on October 25, 2013 (Tr. 61). He did not appeal that decision. His onset date for this appeal is therefore October 26, 2013. His date of last insured is December 31, 2014. The relevant period is from October 26, 2013 to December 31, 2014.
On August 23, 2018, Plaintiff, assisted by his counsel, appeared and testified during a hearing before Administrative Law Judge Randy Riley (the "ALJ"). (Admin. Tr. 28). On November 20, 2018, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 10-17). On November 27, 2018, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"). (Admin. Tr. 146-48).
On June 24, 2019, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1-3).
On August 12, 2019, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Doc. 1, pp. 1-2). As relief, Plaintiff requests that the Court enter judgment reversing the decision of the ALJ or, in the alternative, remand the matter to the ALJ for further action. (Doc. 1, p. 2).
On November 6, 2019, the Commissioner filed an Answer. (Doc. 6). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Doc. 6, p. 3). Along with his Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 7).
Plaintiff's Brief (Doc. 9), the Commissioner's Brief (Doc. 10), and Plaintiff's Reply (Doc. 11) have been filed. 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 12 months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on November 20, 2018.
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
A. THE ALJ'S DECISION DENYING PLAINTIFF'S APPLICATION(S)
In his November 2018 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through December 31, 2014. (Admin. Tr. 12). Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between January 1, 2011 (Plaintiff's alleged onset date) and December 31, 2014 (Plaintiff's date last insured). (Admin. Tr. 13). At step two, the ALJ found that, through the date last insured, Plaintiff had the following medically determinable severe impairments: cervical degenerative disc disease, lumbar discitis, and lumbar osteomyelitis. (Admin. Tr. 13). At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 14).
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) subject to the following additional limitations:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can never climb ladders and can only occasionally perform rotation, flexion, and extension of the neck.(Admin. Tr. 14).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in his past relevant work. (Admin. Tr. 17). However, at step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. Id. To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: electrical accessories assembler (DOT# 729.687-010); cleaner/housekeeping (DOT# 323.687-018); and marker (DOT# 209.587-034). (Admin. Tr. 50-51). Finding that he was capable of work that is available the ALJ determined that "the claimant was not disabled under sections 216(i) and 223(d) of the Social Security Act through December 31, 2014, the last date insured. (Admin.Tr. p. 19).
The ALJ's opinion only noted electrical accessories assembler and marker. (Admin. Tr. 18). However, during the ALJ's hearing, the vocational expert cited to three representative occupations. (Admin. Tr. 50-51).
I turn now to Plaintiff's arguments that this decision was in error.
B. THE ALJ'S EVALUATION OF DR. SCHNECK'S MEDICAL OPINIONS
At the outset, I note that in his Brief (Doc. 9), Plaintiff limited his discussion to issues related to his psychological issues. In his Complaint (Doc. 1), Plaintiff generally alleges that the ALJ's decision is not in accordance with the law or supported by substantial evidence. It appears that Plaintiff does not challenge the ALJ's decision regarding his physical impairments. My discussion is thus confined to Plaintiff's psychological impairments.
First, Plaintiff argues that the ALJ erred by not giving his Psychiatrist, Dr. Schneck's opinion controlling weight. Plaintiff argues:
The Plaintiff asserts that the ALJ failed to follow the treating physician rule by not giving the opinion of Dr. Schneck controlling weight. The treating physician rule was set forth in 20 CFR § 404.1527 and stated
that an ALJ was required to give treating physician's' (sic) opinions controlling weight if the opinions were well supported by medically acceptable clinical and diagnostic techniques and were not inconsistent with other evidence of record.(Doc. 9, pp. 12-13) (footnote omitted).
The ALJ cannot reject the treating physician's well supported opinion without citing other medical evidence. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001). Dr. Schneck's opinion was that the Plaintiff was unable to work full time since 2011 due to Bipolar II disorder, that his bipolar disorder was permanently disabling and that since November 2013, the Plaintiff had a marked or extreme limitation in multiple areas of functioning in work settings. There clearly is no contrary opinion evidence regarding the Plaintiff's mental functioning as the state agency psychologist found insufficient evidence for her to make any conclusion as to the degree to which the Plaintiff was limited by his mental impairments. Dr. Gipe, the consulting psychologist, supported a marked degree of limitation in at least some of the same work-related areas of functioning.
In response, Defendant argues that the ALJ properly weighed Dr. Schneck's opinion. In support, Defendant argues:
After considering Dr. Schneck's opinions that Plaintiff had marked and extreme mental functional limitations and was permanently disabled, the ALJ concluded that they should be afforded little weight because they were not supported by contemporaneous treatment notes and the limitations set forth were grossly out of proportion with the minimal abnormalities found during mental status examinations (Tr. 14).
Indeed, although Dr. Schneck indicated that he had been treating Plaintiff on a monthly basis since June 2011, there are no contemporaneous treatment notes to support his limitations during the relevant period (Tr. 14). See C.F.R. § 404.1527(c)(3) (providing that the weight given to an opinion depends on the degree to which the medical source provides supporting explanations for his opinion). In
fact, there is no evidence that Plaintiff saw any mental health professional between June 2011 and May 2016.(Doc. 10, pp. 15-17).
The limitations set forth by Dr. Schneck were also grossly out of proportion with his generally benign mental status examinations before and after the relevant period (Tr. 14). For example, during a June 2011 psychiatric evaluation Dr. Schneck found that Plaintiff showed no psychotic symptoms and had appropriate affect, good concentration and judgment, and fair to good insight (Tr. 329). In December 2016, Dr. Schneck observed Plaintiff to have intact thought process, normal thought associations, and no evidence of psychotic thought content. (Tr. 334). Likewise, progress notes from Dr. Schneck dated between October 2017 and January 2018 were unremarkable, documenting no suicidal or homicidal ideation; normal speech; intact thought processes; no psychotic thought content; intact memory and fund of knowledge; and good insight, judgment, attention, and concentration (Tr. 529-30, 534-35, 539-40, 544-45, 549050). As the ALJ noted, these findings are clearly inconsistent with Dr. Schneck's opinion that Plaintiff had marked and extreme mental functional limitations and was permanently disabled (Tr. 14, 257, 260, 508-10).
Because Dr. Schneck's opinions are therefore unsupported by the record, the ALJ properly gave them little weight (Tr. 14). 20 C.F.R. § 404.1527(c)(2); Griffin v. Comm'r of Soc. Sec., 305 F. App'x[.] 886, 891 (3d Cir. 2009).
20 C.F.R. § 404.1527(c)(2) provides that:
[I]f a treating source's opinion on the issue(s) of the nature and severity of your impairments(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).
The Commissioner made significant changes to the policy on the evaluation of medical opinion evidence during the pendency of this action that became effective on March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 584401 (Jan 18, 2017). These revisions included "redefining several key terms related to evidence, revising our rules about acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising our rules about medical consultants (MC) and psychological consultants (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use." Id. For ease of use, the Commissioner codified the policy in effect before March 27, 2017, in 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927, and directed that this regulation be applied to all claims filed before March 27, 2017. Although the treating source rule was eliminated in the new regulations, it still applies to applications filed before March 27, 2017. Plaintiff filed his application on August 7, 2016. Thus, the treating source rule still applies to Plaintiff's claim.
The policy interpretation effective on the date the ALJ issued his decision provides that the rule on controlling weight applies only when all of the following criteria are present: (1) the opinion is from a treating source as defined in 20 C.F.R. § 404.1502, and 20 C.F.R. § 416.902; (2) the opinion must be a "medical opinion" as defined by 20 C.F.R. § 404.1527(a) and 20 C.F.R. § 416.927(a); (3) the adjudicator must find the treating source's medical opinion is "well supported" by "medically acceptable" clinical and laboratory diagnostic techniques; and (4) the treating source's opinion is "not inconsistent" with the other "substantial evidence" in the claimant's case record. 1996 WL 374188 at *2 ruling rescinded by 82 Fed. Reg. 5844-01, 5845 (Jan 18, 2017) (rescission effective Mar. 27, 2017). Opinions from medical sources that a claimant is "unable to work" do not qualify as medical opinions under 20 C.F.R. § 404.1527(a) or 20 C.F.R. § 416.927(a). See 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d).
Regarding Dr. Schneck's opinion, the ALJ stated:
The undersigned also gives little weight to the two statements made by Michael Schneck, MD, indicating the claimant as permanently precluded from the performance of gainful work activity due to his attention deficit disorder and bipolar disorder (Exhibit B3F, B4F). Though Dr. Schneck reported treating the claimant for his conditions once monthly between June 2011 and February 2016, the record shows little evidence of any treatment provided to the claimant by Dr. Schneck between those dates that would provide any reasonable support for the degree of impairment reported. The opinions were also rendered in 2016, more than a year after the claimant's date last insured.(Admin. Tr. 14).
The ALJ concluded that Dr. Schneck's opinions were not supported by contemporaneous treatment notes or medical evidence. Dr. Schneck indicated that he saw Plaintiff monthly, beginning in June 2011. (Admin. Tr. 14). Plaintiff generally argues that there was no medical evidence in the record that contradicts Dr. Schneck's opinion that Plaintiff was unable to work full-time due to his Bipolar II disorder. However, the ALJ explained his decision to assign Dr. Schneck's opinion little weight. The ALJ noted that Dr. Schneck's treatment records are insufficient to support Dr. Schneck's conclusions and Dr. Schneck's opinions were rendered more than one year after Plaintiff's date last insured. (Admin. Tr. 14). The ALJ noted that although Dr. Schneck reported seeing Plaintiff each month beginning June 2011 through February 2016, records were not provided to support this extensive treatment. Further, Plaintiff has not cited to any specific treatment records from Dr. Schneck to support his argument. A review of the medical records demonstrates evidence of unremarkable findings related to Plaintiff's mental impairments from his other doctors but no records from Dr. Schneck, his psychiatrist. (Admin. Tr. 529-30, 534-35, 539-40, 544-45, 549-50).
I do not find error warranting remand regarding the ALJ's treatment of Dr. Schneck's conclusion and opinions. I have only been able to identify three (3) documents from Dr. Schneck in the Administrative Transcript.
In the Administrative Transcript, there is a 2011 Psychiatric Evaluation. (Admin. Tr. 328-30). In the 2011 Psychiatric Evaluation, Dr. Schneck diagnosed Plaintiff with Bipolar II Disorder but made no conclusion as to Plaintiff's ability to work. Id.
The Administrative Transcript also includes a Physician Verification Form submitted to the Domestic Relations Section of the Court of Common Pleas of Cumberland County on March 2, 2016, after the date last insured. (Admin. Tr. 257). In the Physician Verification Form, Dr. Schneck indicates that he first treated Plaintiff on June 15, 2011, and that he continued to treat Plaintiff monthly. Id. Dr. Schneck states, "I do not know if patient can ever return to work." Id.
Finally, the Administrative Transcript also includes an Employability Assessment Form submitted to the Pennsylvania Department of Public Welfare. (Admin. Tr. 259-60). In the Employability Assessment Form, dated June 27, 2016, Dr. Schneck checked a box that indicated that Plaintiff was "permanently disabled." (Admin. Tr. 260). This opinion is dated well after the date last insured. Dr. Schneck indicates that he saw Plaintiff monthly, but the only monthly medical reports in the record are from Dr. Banani Saha. There are no records of monthly treatment by Dr. Schneck in the Administrative Record during the relevant period, or any time, during his apparent treatment of Plaintiff.
If those treatment notes are in the record, I could not find them, the ALJ did not discuss them, and the Plaintiff did not point to them in either of his briefs.
Moreover, Plaintiff does not explain how the ALJ's failure to assign greater weight to Dr. Schneck's opinions, rendered after his date last insured and not specifically relating back to the insured period, resulted in prejudice to his case. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) ("Lower court cases make clear that courts have correlated review of ordinary administrative proceedings to appellate review of civil cases in this respect. Consequently, the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
Based on the policy interpretation effective on the date the ALJ issued his decision, Dr. Schneck's opinions were not entitled to controlling weight. Although Dr. Schneck unquestionably opined that Plaintiff was disabled in 2016 (after the date last insured), substantial evidence supports the ALJ's assignment of "little weight" to Dr. Schneck's opinion as it would relate back to the insured period.
Plaintiff asked the ALJ, and now asks this court, to consider evidence showing his disability after the date last insured and relate it back to the insured period. The records provided do not support that request. While Plaintiff may well now be disabled, he did not prove his disability existed during the insured period. There is only one unequivocal statement of disability from any doctor. Plaintiff' psychiatrist stated that he was permanently disabled on a check box form dated July 19, 2016 (Admin. Tr. 259-260). The date last insured is December 31, 2014, eighteen months earlier. There are no treatment records from the psychiatrist, only checkbox opinion forms. The ALJ explained why he discounted the checkbox form. His decision to do so was not error. Thus, I find that remand is not required as to the ALJ's treatment of Dr. Schneck's opinions.
To further support his argument, Plaintiff cites to the opinions of the state agency psychologist Dr. Weitzner and consulting psychologist Dr. Gipe.
The state agency psychologist, Dr. Weitzner, reviewed Plaintiff's medical records on April 11, 2017 but Dr. Weitzner found insufficient evidence to give an opinion on Plaintiff's mental limitations. (Admin. Tr. 82-85).
Plaintiff argues that "Dr. Gipe, the consulting psychologist, supported a marked degree of limitation in at least some of the same work-related areas of functioning." (Doc. 9, p. 13).
Regarding Dr. Gipe, the ALJ stated:
In making this finding, the undersigned gives little weight to the March 2017 opinion of Christopher Gipe, MS, the claimant's consultative psychological examiner. Dr. Gipe rendered his opinion more than 2 years after the claimant's date last insured and 3 months after the claimant's records demonstrate he resumed psychiatric care services. The opinion, therefore, provides little probative value towards an assessment of the claimant's functional status as it existed prior to the claimant's date last insured.(Admin. Tr. 13-14).
Plaintiff does not argue that the ALJ erred in its treatment of Dr. Gipe's opinion, only that it supported Plaintiff's argument that Dr. Schneck's opinion should be controlling. The ALJ's decision to assign Dr. Gipe's opinion little weight is supported by substantial evidence. Plaintiff's reliance on the opinions of Dr. Weitzner and Dr. Gipe to support Dr. Schneck's opinion is not persuasive.
C. THE ALJ'S DETERMINATION AT STEP TWO THAT PLAINTIFF'S MENTAL IMPAIRMENTS WERE NON-SEVERE
Second, Plaintiff argues that the ALJ erred by finding that Plaintiff's mental impairments were non-severe impairments. Plaintiff argues:
The ALJ found that the Plaintiff had no limitation at all in understanding, remembering or applying information, in interacting with others, in concentrating, persisting or maintaining pace or in adapting or managing himself. He also found the Plaintiff had the residual functional capacity for light work with only postural limitations but no limitations whatsoever in mental functioning. Both Dr. Gipe and Dr. Schneck assigned significant limitations in mental functioning to the Plaintiff but the ALJ gave little weight to those opinions because they were given after the Plaintiff's last insured date of December 31, 2014. The ALJ specifically gave little weight to the opinion of Dr. Schneck that the Plaintiff had marked to extreme limitations in functioning since 2013 and was not able to work since 2011. The ALJ simply stated that the record showed little evidence of any treatment provided to the [Plaintiff] from 2011 until 2016 that would provide any reasonable support for the degree of Dr. Schneck's limitations period. The Plaintiff submits that this analysis does not allow for thorough review on appeal. It is not at all clear what treatment the ALJ considered and what treatment would have provided reasonable support for the limitations period. Furthermore, the Plaintiff asserts that even if he had relatively normal mental functioning when examined by Dr. Schneck, the limitations expressed by Dr. Schneck represent his experienced psychiatric opinion as to how the Plaintiff would likely function in a hypothetical work setting. As the Third Circuit noted in Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000), evidence that a claimant's condition is stable and well controlled with medication does not support a conclusion that the claimant can work, since the work environment is completely different from the home or a mental health clinic.(Doc. 9, pp. 14-15).
In response, Defendant argues that substantial evidence supports the ALJ's step-two finding that Plaintiff's bipolar disorder, ADHD, depression, and anxiety were non-severe. Defendant argues:
Substantial evidence supports the ALJ's step-two finding that Plaintiff's bipolar disorder, ADHD, depression, and anxiety were non-severe (Tr. 13-14). At step two of the sequential evaluation process, the ALJ considers whether the claimant has a severe medically determinable impairment. 20 C.F.R. § 404.1520(a)(4)(ii).
. . . .
The ALJ appropriately found that Plaintiff did not have a "severe" medically determinable mental impairment. As the ALJ explained, the record is devoid of any treatment notes from a mental health professional between June 2011 and May 2016 - approximately a year and a half after Plaintiff's date last insured (Tr. 13). In addition, the few treatment records pertinent to the relevant period from Plaintiff's other treating providers never documented abnormal objective mental status examination findings (Tr. 291, 295, 302, 306, 317, 321). These treatment notes consistently documented that Plaintiff was fully oriented with normal judgment, insight, recent/remote memory, mood, and affect (Tr. 291, 295, 302, 306, 317, 321). Evidence dated before and after the relevant period was likewise unremarkable. Indeed, during a June 2011 psychiatric evaluation with Dr. Schneck, Plaintiff denied any psychotic symptoms and had appropriate affect, good concentration and judgment, and fair to good insight (Tr. 329). Similarly, progress notes from Dr. Schneck dated between October 2017 and January 2018 were unremarkable, documenting no suicidal or homicidal ideation; normal speech, intact thought processes; no psychotic thought content; intact memory and fund of knowledge; and good insight judgment, attention, and concentration (Tr. 529-30, 534-35, 539-40, 544-45, 549-50).
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 "did not cause
more than minimal limitation in the claimant's ability to perform basic mental work activities" (Tr. 13). The objective medical evidence showing large gaps in treatment and mostly benign mental status examination findings simply did not demonstrate that any specific mental limitations were warranted on this record.(Doc. 10, pp. 11-14).
Significantly, numerous courts within this Circuit have found that there is no legal requirement that a mild limitation mandates a corresponding RFC limitation. See e.g.[,] Younge v. Berryhill, No. CV 16- 5271, 2017 WL 2978758, at *13 (E.D. Pa. May 31, 2017), R&R adopted by, Doc. 17 (E.D. Pa. Aug. 14, 2017) (affirming where the ALJ found that Plaintiff had no more than mild mental limitation in social functioning and concentration, had no severe mental impairment at step two, and had no mental limitations in the RFC assessment); Smith v. Comm'r of Soc. Sec., No. 15-7525 (JBS), 2016 WL 3912850, at *9 (D.N.J. July 19, 2016) ("The Court disagrees with Plaintiff's assertion that the ALJ failed to account for Plaintiff's non-severe mental limitations in formulating her RFC."); Delio v. Comm'r of Soc. Sec., No. 13-78-E, 2014 WL 4414830, at *4 (W.D. Pa. Sept. 8, 2014) (holding that an ALJ's finding of mild mental limitations at step two, which the ALJ found caused no more than minimal limitations in the plaintiff's ability to perform work, did not need to be accounted for in the ALJ's RFC assessment).
Ultimately, the burden is on Plaintiff to present evidence of his disability. 20 C.F.R. § 404.1512; Sykes v. Apfel, 228 F.2d 259, 262-63 (3d Cir. 2000); Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984). Disability is not determined by the mere presence of an impairment, but by the effect that an impairment has upon an individual's ability to perform substantial gainful activity. 20 C.F.R. § 404.1521; Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (stating that "a presumption that physical impairment necessarily precludes the maintenance of substantial gainful employment . . . conflict[s] with the regulatory scheme for determining whether a claimant is disabled"). Plaintiff has not met that burden here.
At step two of the sequential evaluation process, the ALJ considers whether a claimant's impairment is (1) medically determinable or non-medically determinable, and (2) severe or non-severe; this step is essentially a threshold test. 20 C.F.R. § 404.1520(a)(4)(ii); SSR 85-28, 1985 WL 56856.
An impairment, or combination of impairments, is not severe if it does not significantly limit a claimant's ability to do basic work activities. 20 C.F.R. § 404.1521. Conversely, an impairment is "severe" if it does significantly limit a claimant's physical or mental ability to do basic work activities. The phrase, "significantly limits," however is not synonymous with "disability." Rather, the ALJ's analysis at step two is a threshold test designed to screen out de minimis claims.
Under the Commissioner's regulations, all impairments, both severe and non-severe, must be accounted for in an ALJ's RFC assessment. 20 C.F.R. § 404.1545. Therefore, in cases where the ALJ found at least one impairment is found medically determinable and severe, an ALJ's unsupported conclusion that one or more other impairments are medically determinable but "non-severe" may be viewed as harmless error unless it appears that the ALJ's error influenced his or her RFC assessment.
As explained in McClease v. Comm'r of Soc. Sec.:
[E]ven if an ALJ erroneously determines at step two that one impairment is not "severe," the ALJ's ultimate decision may still be based on substantial evidence if the ALJ considered the effects of that impairment at steps three through five. However, where it appears that the ALJ's error at step two also influenced the ALJ's RFC analysis, the reviewing court may remand the matter to the Commissioner for further consideration. See Nosse v. Astrue, No. 08-[CV-1173, 2009 WL 2986612, *10] (W.D. Pa. Sept. 17, 2009).No. 8-CV-1673, 2009 WL 3497775, *10 (E.D. Pa. Oct. 28, 2009); see also Salles v. Comm. Of Soc. Sec., 229 F. App'x. 140, 145, n. 2 (3d Cir. 2007) ("Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her impairments were non-severe, any error was harmless.").
Even though the ALJ found that Plaintiff's mental limitations were non-severe, the ALJ was still required to evaluate any limitation resulting from this impairment at each step of the sequential evaluation process. 20 C.F.R. § 404.1545(a)(2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe,' . . . when we assess your residual functional capacity."). Therefore, I find that any error would be harmless. Remand is not necessary regarding the ALJ's Step Two analysis.
D. THE ALJ'S CREDIBILITY DETERMINATION REGARDING PLAINTIFF'S MENTAL IMPAIRMENTS
Finally, Plaintiff argues that the ALJ erred in finding Plaintiff's statements were inconsistent with the medical evidence of record. Plaintiff argues:
The Plaintiff testified that he stopped working in 2011 essentially because of his the (sic) mental impairments and does not drive because of his anxiety. He had extreme anxiety and the unfamiliar situation of traveling to the hearing office for his hearing. He also testified he spends days in his room by himself and has been borderline suicidal in the past. These limitations are certainly well supported by the findings of Dr. Gipe and Dr. Schneck. Once the claimant submits sufficient testimony to support a claim of disability, an ALJ may not dismiss the testimony simply as not credible without pointing to contrary medical evidence. Williams v. Sullivan, 970 F.2d 1178, 1184-5 (3d Cir. 1992). The ALJ in this instance cannot point to contrary medical evidence because there is none. Even the state agency psychologist concluded there was insufficient evidence to make any determination on the Plaintiff's functional limitations.(Doc. 9, pp. 15-16).
Defendant responds by arguing that:
Plaintiff suggests that the ALJ could not discount his allegations "without pointing to contrary medical evidence" (Pl.'s Br. 15). This is not correct. The regulations instruct that several factors may provide a reason to discount a claimant's allegations of disabling symptoms, including non-medical evidence. See 20 C.F.R § 404.1529(c)(3). Nevertheless, the ALJ here pointed to contrary medical evidence (Tr. 13-14, 16). The ALJ discussed that Plaintiff's treatment records showed little evidence during the relevant period to support his allegations of disabling mental health impairments (Tr. 13). See 20 C.F.R. § 404.1529(c)(3)(v) (noting that a claimant's treatment (or lack thereof) is relevant when assessing the credibility of his subjective complaints). Specifically, there are no treatment records from a mental health professional during the relevant period; other treating providers never documented abnormal objective mental status examination findings during the relevant period (Tr. 291, 295, 302, 306, 317, 321); and mental status examinations outside the relevant period were benign, documenting no suicidal or homicidal ideation; normal speech; intact thought processes; no psychotic thought content; intact memory and fund of knowledge; and good insight, judgment, attention, and concentration (Tr. 329, 334, 529-30, 534-35, 539-40, 544-45, 549-50).
The ALJ also considered Plaintiff's statements about his activities and found this evidence inconsistent with his allegations of disabling symptoms (Tr. 15-17).(Doc. 10, pp. 18-19).
The Commissioner's regulations define "symptoms" as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502(1); 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 v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). To facilitate this difficult analysis, the Commissioner has devised a two-step process that must be undertaken by the ALJ to evaluate a claimant's statements about his or her symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b); SSR 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 the objective medical evidence and other evidence." 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; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
An ALJ's findings based on the credibility of a claimant are to be accorded great weight and deference since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford, 399 F.3d at 554.
At step two, the ALJ addressed Plaintiff's mental impairments. The ALJ stated:
The claimant's medically determinable mental impairments of bipolar disorder, attention deficit hyperactivity disorder, depression, and anxiety, considered singly and in combination, did not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and were therefore non-severe.
In making this finding, the undersigned has considered the four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1). These four areas of mental functioning are known as the "paragraph B" criteria.
The first functional area is understanding, remembering, or applying information. In this area, the claimant had no limitation. The next functional area is interacting with others. In this area, the claimant had
no limitation. The third functional area is concentrating, persisting, or maintaining pace. In this area, the claimant had no limitation. The fourth functional area is adapting or managing oneself. In this area, the claimant had no limitation. Though the claimant alleges significant mental health symptoms and limitations, the claimant's treatment record shows little evidence to support these allegations during the period at issue. The claimant's primary care records show that the claimant continued to be prescribed psychotropic medications between the date of the claimant's prior denial and his date last insured and suggested the claimant was being actively treated by a psychiatrist (Exhibit B5F). However, the claimant's psychiatric records show that the claimant was not treated by his mental health professional between June 2011 - prior to the claimant's last October 2013 denial - and December 2016 - 2 years after his date last insured. The record shows little evidence of any complaints of active symptoms or functional restrictions during the period at issue and does not support the claimant's allegations. The record provides little evidence to demonstrate the claimant suffered any functional limitations due to mental health impairments during that period.(Admin. Tr. 13).
Because the claimant's medically determinable mental impairments caused no more than "mild" limitation in any of the functional areas, they were non-severe (20 CFR 404.1520a(d)(1)).
Plaintiff relies on the opinions of Dr. Gipe and Dr. Schneck as support for Plaintiff's subjective testimony about his mental impairments. As stated above, I did not find error with the ALJ's treatment of the opinions of Dr. Gipe and Dr. Schneck. Plaintiff argues that the ALJ is required to cite to contrary medical evidence to dismiss Plaintiff's testimony and that no contrary evidence exists. (Doc. 9, pp. 15-16). I agree that no contrary objective medical evidence exists. As noted above, the ALJ cannot rely on the conclusion that a plaintiff's testimony is not substantiated by objective evidence to discount that testimony.
However, although the ALJ noted that Plaintiff's testimony was not supported by objective medical evidence, the ALJ provided further reasoning for his decision to discount Plaintiff's testimony. The ALJ discussed the medical evidence that contradicted Plaintiff's testimony. For example, the ALJ noted that, in this record, Plaintiff received no treatment from mental health professionals during the relevant period and that other treating providers did not indicate any abnormal mental findings during the relevant period. Further, the ALJ considered Plaintiff's own testimony about his activities and concluded that it was inconsistent with his testimony regarding his mental health symptoms and limitations. I find no error in the ALJ's credibility determination regarding Plaintiff's testimony. Thus, I find that remand is not necessary as to the ALJ's treatment of Plaintiff's testimony regarding his mental impairment.
[The following page contains the Recommendation]
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for reversal of the ALJ's decision or, in the alternative, a new hearing by the ALJ 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: July 31, 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: July 31, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge