Opinion
CIVIL ACTION NO. 4:15-cv-2064
07-18-2018
GARY C. SNYDER, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant
(BRANN, D.J.) ()
REPORT AND RECOMMENDATION
This is an action brought under Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Gary Snyder's ("Mr. Snyder") applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. 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. For the reasons expressed herein, I RECOMMEND the Commissioner's final decision be AFFIRMED, and Mr. Snyder's request for relief be DENIED. I. BACKGROUND AND PROCEDURAL HISTORY
Gary Snyder alleges he is disabled due to "a history of fractures in his upper and lower extremities, torn shoulder tendons, cervical fractures, severe depression, anxiety, adjustment disorder, traumatic brain injury, degenerative changes in his sacroiliac joint, joint dysfunction, and Barrett's esophagus." (Doc. 11, p. 1). He is a widowed man who lived by himself at the time of his first hearing. (Admin. Tr. 34; Doc. 10-2, p. 35). Mr. Snyder has some college education. (Admin. Tr. 38; Doc. 10-2, p. 39). During the period of time under consideration by Administrative Law Judge Sharon Zanotto ("ALJ"), Mr. Snyder's daily activities included: maintaining his personal hygiene, doing light household chores (i.e., cleaning and laundry), cooking, shopping for groceries, driving a car, watching television, managing his personal finances, attending some college courses, and communicating with family and friends in-person and via the internet. (Admin. Tr. 39-44; Doc. 10-2, pp. 40-45). Mr. Snyder alleges his physical ailments stem from a serious motorcycle accident that occurred in 2010. (Admin. Tr. 65-66; Doc. 10-2, pp. 66-67). However, Mr. Snyder continued to engage in substantial gainful activity until 2013. (Admin. Tr. 66-67; Doc. 10-2, pp. 67-68).
On March 11, 2013, Mr. Snyder protectively filed applications seeking benefits under Titles II and XVI of the Social Security Act. (Admin. Tr. 16; Doc. 10-2 p. 17). In both applications, Mr. Snyder alleged an onset date of February 28, 2013. (Admin. Tr. 16; Doc. 10-2, p. 17). On July 1, 2017, Mr. Snyder's applications were denied at the initial level of administrative review. Id.
Mr. Snyder was provided with two opportunities to plead his case before the ALJ. On December 19, 2014, Mr. Snyder appeared before the ALJ and testified with the assistance of counsel. Id. On April 13, 2015, a second hearing was held before the ALJ. Id.On April 16, 2015, the ALJ issued a written decision denying Mr. Snyder's applications for benefits. (Admin. Tr. 16-26; Doc. 10-2, pp. 17-27).
On September 25, 2015, the Appeals Council of the Office of Disability Adjudication and Review denied Mr. Snyder's request for review. (Admin. Tr. 1; Doc. 10-2, p. 2). On October 23, 2015, Mr. Snyder filed this civil action seeking review of the Commissioner's final decision denying his applications for benefits. (Doc. 1, pp. 1-6). II. STANDARD OF REVIEW
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 me, therefore, is not whether Mr. Snyder is disabled, but whether the Commissioner's adverse finding 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 . . . ."). III. ANALYSIS
To receive benefits under Title II or Title XVI of the Social Security Act, Mr. Snyder 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); 42 U.S.C. § 1382c(a)(3)(A). To satisfy this requirement, Mr. Snyder must have a severe physical or mental impairment that makes it impossible to do either his previous work or any other substantial gainful activity that exists in significant number in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B). In addition, to be eligible to receive benefits under Title II, Mr. Snyder must meet the insured status requirement of the Social Security Act. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131.
In this report, all citations to administrative rulings and regulations correspond to the version of the ruling or regulation that was in effect on the date the Commissioner issued her final decision denying Mr. Snyder's applications for benefits. In this case, the ALJ's decision is the final decision of the Commissioner, and it was issued on April 16, 2015.
In evaluating the question of whether Mr. Snyder is disabled as it is defined in the Social Security Act, the ALJ is required to follow a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the ALJ must determine, in sequence: (1) whether Mr. Snyder is engaged in substantial gainful activity; (2) whether Mr. Snyder has a severe impairment; (3) whether Mr. Snyder's impairment meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing of Impairments"); (4) whether Mr. Snyder is able to do his past relevant work, considering his current RFC; and, (5) whether Mr. Snyder is able to do any other work that exists in significant numbers in the national economy, considering his current RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Mr. Snyder bears the initial burden of demonstrating a medically determinable impairment that prevents him from doing his past relevant work. 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a). Once he has established at step four that he cannot do past relevant work, however, the burden shifts to the Commissioner at step five to show that Mr. Snyder could perform a significant number of jobs that exist in the national economy considering his RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); 20 C.F.R. § 416.912(f).
A claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1); see also Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). Before the ALJ goes from step three to step four, he or she assesses the claimant's RFC. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4). The RFC is used at step four and step five to evaluate the claimant's case. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).
In her decision denying Mr. Snyder's applications for benefits, the ALJ made findings of fact at each step of the sequential evaluation process. At step one, the ALJ found that Mr. Snyder did not engage in substantial gainful activity between February 28, 2013, and April 16, 2015 (the "relevant period"). (Admin. Tr. 18; Doc. 10-2, p. 19). At step two, the ALJ found Mr. Snyder had the following medically determinable severe impairments during the relevant period: "status post fracture of an upper and lower extremity, degenerative changes of the SI joint, joint dysfunction, affective disorder and anxiety disorder." Id. At step three the ALJ determined Mr. Snyder did not meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 during the relevant period. (Admin. Tr. 19-20; Doc. 10-2, pp. 20-21). Between steps three and four, the ALJ determined that, during the relevant period, Mr. Snyder possessed the RFC to perform light work, with the following exceptions:
he is limited to no more than occasional pushing and pulling with the right lower extremity due to problems with the right foot and ankle, occasional overhead reaching with the right upper extremity, occasional finger or feeling with his right dominant hand, and occasional crouching, kneeling and climbing ramps and stairs. The claimant needs to avoid crawling and climbing ladders, ropes and scaffolds, and cannot perform jobs requiring the ability to taste or smell various odors. The claimant retains the mental capacity for no more than occasional interaction with supervisors, coworkers and the public.(Admin. Tr. 20-21; Doc. 10-2, pp. 21-22); see also 20 C.F.R. § 404.1567(b) (defining light work); 20 C.F.R. § 416.967(b) (defining light work). At steps four and five, the ALJ found although Mr. Snyder could not perform his past relevant work during the relevant period, there were jobs that existed in significant numbers in the national economy that he could perform. (Admin. Tr. 25-26; Doc. 10-2, pp. 26-27).
Mr. Snyder raises three issues on appeal: (a) whether the ALJ's adverse finding that Mr. Snyder did not meet or equal the criteria of a Listing at step three is supported by substantial evidence; (b) whether the RFC finding made by the ALJ is supported by substantial evidence; and (c) whether Mr. Snyder received a fair hearing. (Doc. 11, pp. 4, 10, 13).
A. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S CONCLUSION AT STEP THREE
The Listing of Impairments describes, for each major body system, the degree of impairment that is considered to be severe enough to prevent a claimant from doing any gainful activity regardless of the claimant's age, education or work experience. 20 C.F.R. § 404.1525(a); 20 C.F.R. § 416.925(a). At step three of the sequential evaluation process, the ALJ considers whether the combination of the claimant's medically determinable impairments meets a Listing. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 416.920(a)(4)(iii). A claimant is found disabled per se at step three if he or she has an impairment that meets the twelve (12) month duration requirement, and meets or equals all the criteria of a Listing. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 416.920(a)(4)(iii).
However, to qualify for benefits by showing that an impairment, or combination of impairments, is equivalent to a listed impairment, the claimant bears the burden of presenting "medical findings equivalent in severity to all the criteria for the one most similar impairment." Sullivan v. Zebley, 493 U.S. 521, 531 (1990). An impairment, no matter how severe, that meets or equals only some of the criteria of a Listing is not sufficient. Id.
Mr. Snyder argues the ALJ erred at step three because, during the relevant period, he met "Listing 1.02B, 1.02A, and/or 12.04." (Doc. 11, p. 5). Part B of Listing 1.02 categorizes a per se disability resulting from major dysfunction of upper extremity joints. Part A of Listing 1.02 categorizes a per se disability resulting from a major dysfunction of lower extremity joints. Listing 12.04 categorizes a per se disability resulting from a depressive disorder.
1. Substantial Evidence supports the ALJ's Conclusion that Mr. Snyder does not Meet Listing 1.02A or 1.02B
The version of Listing 1.02 in effect during the relevant period states:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;
Or20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.02.
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.
Mr. Snyder asserts that the ALJ dismissed his eligibility for Listings 1.02B and 1.02A with one sentence, and argues that "the ALJ failed to provide evidence for her decision or state what evidence she was rejecting." (Doc. 11, p. 5). Mr. Snyder is correct that as a matter of law the ALJ is required to "set forth the reasons for [her] decision" at step three, and cannot rely on a bare conclusory statement that an impairment did not match, or is not equivalent to, a Listing. Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119-120 (3d Cir. 2000). However, to satisfy the Burnett standard, the ALJ need not "use particular language or adhere to a particular format in conducting [her] analysis." Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). "Rather, the function of Burnett is to ensure that there is sufficient development of the record and explanation of findings to permit meaningful review." Id.
My review of the ALJ's decision reveals that the one-sentence explanations provided with respect to both Listings 1.02B and 1.02A are sufficient to permit meaningful judicial review.
The ALJ provided the following explanation in support of her determination that Mr. Snyder did not meet Listing 1.02B:
[t]he claimant's upper extremity impairment does not meet listing 1.02B because it is not characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) with chronic pain and stiffness with signs of limitation of motion or other abnormal motion, and findings on appropriate imaging of joint space narrowing, bony destruction, or ankylosis, resulting in inability to perform fine and gross movements effectively.(Admin. Tr. 19; Doc. 10-2, p. 20).
In addition to his allegation that the ALJ's discussion of Listing 1.02B is inadequate, Mr. Snyder also argues that remand is required in this case because he meets Listing 1.02B. (Doc. 11, p. 6). He asserts that the record includes evidence that: his right hand demonstrates some anatomical deformity; he is in chronic pain; he has limitation in motion in his right hand; and his impairment results in an inability to perform fine and gross movements effectively. (Doc. 11, p. 6). Pursuant to the Commissioner's regulations, inability to perform fine and gross movements effectively means:
extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. To use their upper extremities effectively, individuals must be capable of sustaining such functions as reaching, pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Therefore, examples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the
inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level.20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2c (emphasis added). Mr. Snyder fails to cite any evidence in support of his allegation that his right hand and wrist impairment results in an extreme loss of function of both upper extremities. As such, I am not persuaded by his argument that the ALJ erred when she found that his right hand and wrist impairment did not result in the inability to perform fine and gross movements effectively. Because he does not meet all the criteria of Listing 1.02B, Mr. Snyder's allegation that he should have been awarded benefits at step three under this Listing fails.
The ALJ provided the following explanation in support of her determination that Mr. Snyder did not meet Listing 1.02A:
[t]he claimant's lower extremity impairment does not meet listing 1.02A because it is not characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) with chronic pain and stiffness with signs of limitation of motion or other abnormal motion, and findings on appropriate imaging of joint space narrowing, bony destruction, or ankylosis, resulting in inability to ambulate effectively[.](Admin. Tr. 19; Doc. 10-2, p. 20).
In addition to his allegation that the ALJ's discussion of Listing 1.02A is inadequate, Mr. Snyder also argues that remand is required because he meets all of the criteria of Listing 1.02A. To meet Listing 1.02A, Mr. Snyder must prove that his impairment results in the inability to ambulate effectively. Pursuant to the Commissioner's regulations, inability to ambulate effectively means:
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2b1. The Commissioner also provides the following examples of effective and ineffective ambulation:
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2b2. In support of his allegation that he is unable to ambulate effectively, Mr. Snyder relies entirely on evidence that predates his alleged onset date of February 28, 2013. (Doc. 11 p. 7). By contrast, the ALJ supports her decision by relying on evidence from February 2013 showing that Mr. Snyder "ambulated independently," as well as a June 2013 examination where it was noted that Mr. Snyder drove himself to the appointment, presented in no distress, was able to walk and move independently, and was able to rise up from a chair and get on and off an examination table with relative ease. (Admin. Tr. 22; Doc. 10-2, p 23). Mr. Snyder does not allege that the ALJ mischaracterized this evidence. Instead, he merely points out that the evidence relied on by the ALJ is contradicted by evidence that pre-dates Plainitff's alleged onset date.
I am not persuaded by Mr. Snyder's argument that the ALJ should have rejected examination findings made during the relevant period in favor of evidence that pre-dates Mr. Snyder's alleged onset date. Accordingly, I find that the ALJ's determination that Mr. Snyder's right foot and ankle impairment does not result in ineffective ambulation is supported by substantial evidence. Because he does not meet all the criteria of Listing 1.02A, Mr. Snyder's allegation that he should have been awarded benefits at step three under this Listing fails.
2. Substantial Evidence Supports the ALJ's Conclusion that Mr. Snyder does not meet Listing 12.04
Listing 12.04 categorizes affective disorders that are so severe a claimant is per se disabled. The version of Listing 12.04 in effect during the relevant period states:
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood
refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.
. . . .
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration[.]
At step three, the ALJ applies a psychiatric review technique to evaluate the severity of a claimant's mental impairment. 20 C.F.R. § 404.1520b; 20 C.F.R. § 416.920b. This technique mirrors the paragraph B criteria of Listing 12.04. In applying this technique, the ALJ is required to rate the degree of a claimant's impairment for the first three paragraph B criteria on the following five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520b(c)(4); 20 C.F.R. § 416.920b(c)(4). The listing of impairments provides that a "marked" limitation is not defined by a specific number of behaviors or deficits, but by the nature and overall degree of interference with function. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C1, C2, C3.
In concluding that Mr. Snyder did not meet the criteria of paragraph B during the relevant period, the ALJ found Mr. Snyder had no restrictions in his activities of daily living, moderate difficulty maintaining social functioning, and no difficulties maintaining concentration, persistence, or pace. (Admin. Tr. 19-20; Doc. 10-2, pp. 20-21). Mr. Snyder contends that he has marked limitations in activities of daily living, marked difficulties in social functioning, and marked difficulties maintaining concentration, persistence, or pace. (Doc. 11, pp. 9-10). I find that the ALJ's conclusion that Mr. Snyder did not have a marked difficulties or restriction in activities of daily living, social functioning, or maintaining concentration, persistence or pace is supported by substantial evidence.
With regard to activities of daily living, the ALJ noted that Mr. Snyder was "able to shop and perform personal care activities and light household work." (Admin. Tr. 19; Doc. 10-2, p. 20). Both his function report and hearing testimony establish that Mr. Snyder could maintain his personal hygiene, do light household chores, cook and prepare meals, shop for groceries, drive a car, watch television, handle his finances, attend some college courses, and communicate with family and friends in-person and via the internet. (Admin. Tr. 39-44; Doc. 10-2, pp. 40-45); (Admin. Tr. 245-48; Doc. 10-6, pp. 13-16).
"Activities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office. In the context of your overall situation, we assess the quality of these activities by their independence, appropriateness, effectiveness, and sustainability. We will determine the extent to which you are capable of initiating and participating in activities independent of supervision or direction." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C1.
With regard to the maintenance of concentration, persistence, and pace, the ALJ noted that Mr. Snyder was attending school to study web design and was able to complete school work without requiring accommodations in the academic setting. (Admin. Tr. 37-39; Doc. 10-2, pp. 38-40). She also noted that Mr. Snyder was able to drive himself and go to appointments. (Admin. Tr. 39; Doc. 10-2, p. 40). Furthermore, Mr. Snyder has no issue concentrating on television or using the computer, which he does for several hours each day. (Admin. Tr. 46, 48-49; Doc. 10-2, pp. 47, 49-50).
"Concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C3.
Finally, with regard to the maintenance of social functioning, the ALJ found Mr. Snyder to have moderate difficulties. (Admin. Tr. 20; Doc. 10-2, p. 21). The ALJ cited Mr. Snyder's allegations of difficulty with interacting with others. (Admin. Tr. 20; Doc. 10-2, p. 21). She noted, however, that although Mr. Snyder dropped out of one class because it required too much peer-to-peer interaction, he was still able to attend and complete other classes. Id.; (see also Admin. Tr. 38-39, 43; Doc. 10-2, pp. 39-40, 44). The ALJ also noted Mr. Snyder's testimony that he maintained regular contact with his sons and his mother. (Admin. Tr. 20; Doc. 10-2, p. 21); (see also Admin. Tr. 43-44; Doc. 10-2, pp. 44-45).
"Social functioning refers to a claimant's capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. A claimant may demonstrate impaired social functioning by, for example, a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, or social isolation. A claimant may exhibit strength in social functioning by such things as your ability to initiate social contacts with others, communicate clearly with others, or interact and actively participate in group activities." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00C2.
After reviewing the ALJ's decision, and the evidence upon which she relied, I find that substantial evidence supports the ALJ's determination that Mr. Snyder did not meet the paragraph B criteria of Listing 12.04.
B. REMAND IS NOT WARRANTED FOR THE CONSIDERATION OF NEW EVIDENCE
Mr. Snyder argues that "the record shows that Claimant could not perform light work, or any substantial work for that matter." (Doc. 11, p. 12). In support of his position, Mr. Snyder relies in large part on a medical opinion by his treating psychologist, Dr. Donald Masey, that, "Mr. Snyder would not be able to be competitively employed relating to his chronic and severe depression." (Admin. Tr. 606; Doc. 10-10, p. 59). Mr. Snyder argues that the ALJ was required to give Dr. Masey's opinion great, or even controlling, weight pursuant to 20 C.F.R. § 404.1527(c)(2) and 20 C.F.R. § 416.927(c)(2). (Doc. 11, p. 12). I note, however, that the opinion cited by Mr. Snyder was not before the ALJ when she issued her decision in April 2015. Instead this evidence was first made available to the Appeals Council. (Admin. Tr. 4; Doc. 10-2, p. 5) (noting that Exhibit B12F, which appears at page 606 of the Administrative Transcript, was added to the record when Mr. Snyder's claim was pending before the Appeals Council).
Mr. Snyder also alleges in a conclusory fashion that his impaired fine motor movements of his right hand, and limited mobility due to his right foot and ankle injuries, preclude the performance of light work. (Doc. 11, p. 12). Mr. Snyder fails, however, to explain why the limitations assessed by the ALJ in her RFC assessment fail to account for these deficits, or why they preclude the performance of light work. Accordingly, I find this argument to be unpersuasive.
There are a limited number of options available to the District Court once the Appeals Council has denied review in a Social Security case. A District Court may affirm the decision of the Commissioner, modify the decision of the Commissioner, or reverse the decision of the Commissioner with or without a remand based on the record that was made before the ALJ under sentence four of 42 U.S.C. § 405(g). Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). When a claimant seeks to rely on evidence that was not before the ALJ, the District Court may remand "only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ." Id. To hold otherwise would create an incentive to withhold material evidence from the ALJ in order to preserve a reason for remand. Id. at 595.
In this case, Mr. Snyder does not make any attempt to show that this evidence, or any of the other evidence that was first presented to the Appeals Council, is either material to the relevant period or that there is good cause as to why this evidence was not presented to the ALJ. Accordingly, I find that this argument fails to state a basis for remand.
Furthermore, even if this evidence was presented to the ALJ, the statements cited by Mr. Snyder in his brief would not, as a matter of law, be entitled to controlling weight under the Commissioner's regulations. 20 C.F.R. § 404.1527(c)(2) and 20 C.F.R. § 416.927(c)(2) provide 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.
The policy interpretation effective on the date the ALJ issued her 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. SSR 96-2p, 1996 WL 374188 at *2. Opinions from medical sources that a claimant is "unable to work," like the statement upon which Mr. Snyder relied, 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).
Accordingly, Mr. Snyder's argument that the ALJ's RFC assessment is defective because she did not adopt Dr. Masey's assessment that Mr. Snyder could not work does not compel remand in this case.
C. MR. SNYDER'S BIAS CLAIM WAS WAIVED
"Essential to a fair hearing is the right to an unbiased judge." Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). This rule is applicable to administrative, as well as judicial, adjudicators. Hummel v. Heckler, 736 F.2d 91 (3d Cir. 1984). Recognizing this fundamental right, the Commissioner has provided a means for challenging the fairness of an administrative hearing on the grounds of ALJ bias. The Commissioner's regulations provide that:
An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. If you object to the administrative law judge who will conduct the hearing, you must notify the administrative law judge at your earliest opportunity. The administrative law judge shall consider your objections and shall decide whether to proceed with the hearing or withdraw. If he or she withdraws, the Associate Commissioner for Hearings and Appeals, or his or her delegate, will appoint another administrative law judge to conduct the hearing. If the administrative law judge does not withdraw, you may, after the hearing, present your objections to the Appeals Council as reasons why the hearing decision should be revised or a new hearing held before another administrative law judge.20 C.F.R. § 404.940; 20 C.F.R. § 416.1440.
As observed by the Third Circuit Court of Appeals, this regulation "contemplates that factfinding with respect to claims of bias take place at the agency level, and that judicial review of bias claims take place in review proceedings under section 405(g)." Hummel, 736 F.2d at 94. Furthermore, a civil action in a District Court requesting review of a decision by the Social Security Administration is adjudicated as an appeal. L.R. 83.40.1. Because a District Court may not make its own findings of fact in such cases, claims of ALJ bias that were apparent during the administrative review process, but not raised, are deemed waived. See Hummel, 736 F.2d at 94 ("had Hummel been aware of the facts giving rise to her claim of bias she would be deemed to have waived it by failing to raise it in the manner specified in 20 C.F.R. § 416.1440."); Grant v. Shalala, 989 F.2d 1332, 1329 (3d Cir. 1993) ("the district court may not conduct a trial and make its own findings regarding the ALJ's alleged bias . . . [it] must review the Secretary's findings on the question of bias rather than making independent findings of its own."); Ward v. Shalala, 898 F. Supp. 261, 269 (D. Del. 1995) ("Because Ms. Ward brought up the bias claim for the first time before this Court she is deemed to have waived her bias claim.").
Mr. Snyder first became aware of a potential bias claim during his first administrative hearing. (See Doc. 11, p. 14) (alleging that the ALJ conducted herself in an accusatory, antagonistic, and biased manner at both hearings). He did not raise the issue of bias with the ALJ at his first hearing before the ALJ. He did not raise the issue four months later when he appeared before the same ALJ a second time. He did not raise the issue of bias to the Appeals Council. Instead, he raised his claim for the first time in this Court. (See Doc. 11, pp. 13-15). There are no administrative findings on the issue of the ALJ's bias for me to review. Accordingly, I find that Mr. Snyder's bias claim is waived.
Although Mr. Snyder filed a letter expressing his dissatisfaction with several of the ALJ's findings, he did not expressly raise the issue of bias. (Admin. Tr. 306-308; Doc. 10-6, pp. 74-76). Mr. Snyder's counsel did not raise any allegation of bias in her letter requesting that Mr. Snyder's case be remanded or overturned. (Admin. Tr. 12; Doc. 10-2, p. 13). --------
Furthermore, I note that Courts have found that a claimant was deprived a fair hearing due to ALJ bias only in extreme cases, such as where an ALJ constantly interrupted the claimant when he was testifying with questions that were irrelevant to the issue of disability. See, e.g., Ventura, 55 F.3d at 902-04. However, the limited record before me does not reveal conduct by the ALJ that suggests that Mr. Snyder's hearing was unfair. There is no evidence that the ALJ's conduct at either hearing in this case deprived Mr. Snyder of a fair hearing. The ALJ waited thirty (30) minutes when Mr. Snyder had difficulty finding the location of the courthouse, conducted a supplemental hearing to permit the full development of the record, and permitted Mr. Snyder's counsel a fair opportunity to elicit testimony from his client and from the vocational expert. IV. RECOMMENDATION
Based on the foregoing, I recommend that the Commissioner's decision be AFFIRMED, and Mr. Snyder's Request for Relief should be DENIED as follows:
(1) Plaintiff Gary C. Snyder's Request for Remand or the Award of Benefits should be DENIED;Date: July 18, 2018
(2) The Final Decision of the Commissioner of Social Security denying Mr. Snyder's applications for benefits under Titles II and XVI of the Social Security Act should be AFFIRMED;
(3) A separate order of Final Judgment should be issued in favor of the Commissioner of Social Security; and
(4) The Clerk of Court should CLOSE this case.
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 18, 2018
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge