Opinion
CASE NO. 3:17-cv-01840-MEM-GBC
08-02-2019
JOHN R. STOVER, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. John R. Stover ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Act, a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an ALJ to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court's review is based on the record, and the Court will "meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met." Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)). /// /// ///
II. PROCEDURAL HISTORY
On July 29, 2013, Plaintiff filed an application for Title XVI supplemental security income and Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401-433, 1382-1383, with a last insured date of December 31, 2017, and an amended alleged disability onset date of July 23, 2013. (Tr. 10, 37). Plaintiff alleged disability due to the following impairments: bipolar disorder; borderline personality disorder; obesity; diabetes; and neuropathy. (Tr. 86). On May 4, 2016, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 7-26). Plaintiff sought review of the decision, which the Appeals Council denied on August 7, 2017, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-6).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1). --------
On October 6, 2017, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On December 20, 2017, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 9, 10). On February 5, 2018, Plaintiff filed a brief in support of the appeal. (Doc.13 ("Pl. Br.")). On February 26, 2018, Defendant filed a brief in response. (Doc. 14 ("Def. Br.")). On March 23, 2018, Plaintiff filed a reply. (Doc. 17 (Reply)).
III. ISSUES
On appeal, Plaintiff alleges four errors: (1) the ALJ erred in "finding the Plaintiff was able to do work at the light exertional level despite giving partial weight to the opinions of the Plaintiff's treating or examining provides;" (2) the ALJ erred in "finding the Plaintiff could have occasional contact with supervisors but no contact with the public or coworkers;" (3) the ALJ erred in "failing to find that the Plaintiff had any deficits in maintaining attention, concentration and pace despite giving significant weight to the opinions of the consulting psychologist and state agency psychologist;" and (4) the ALJ erred in "failing to find the Plaintiff fully credible." (Pl. Br. at 14-15).
IV. BACKGROUND
Plaintiff was born in August 1972 and thus is classified by the regulations as a younger individual through the date of the May 2016 ALJ decision. (Tr. 19, 86); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff graduated high school and completed a year of college. (Tr. 358). Plaintiff's work history includes: computer repair technician, (Dictionary of Occupational Titles (DOT) code 726.261-018); purchasing agent, (DOT code 162.157-038); network control operator (DOT code 031.262-014); computer systems engineer (DOT code 033.167-010); and magician, amusement and recreation (DOT code 159.041-010. (Tr. 42-51, 79). Plaintiff stopped working in August 2012 (Tr. 211, 303), and in early 2013, Plaintiff started community college through a "retraining assistance program" with the Veterans Administration ("VA"). (Tr. 296). However, Plaintiff then spent several months "traveling [with] the carnival," got behind on his college credits, and lost his VA assistance. (Tr. 282). In May 2014 Plaintiff began working for Walmart as a receiving associate, and while working, slipped and hit his head (Tr. 53-54). Plaintiff pursued a worker's compensation claim, and in January 2015, reported that he could not work due to his claim, and instead performed volunteer work for the Salvation Army as a bell ringer. (Tr. 266, 488, 528). /// /// /// ///
V. ANALYSIS
A. Residual Functional Capacity
Plaintiff argues the ALJ erred in determining Plaintiff's RFC. (Pl. Br. 14-15). In the May 2016 decision, the ALJ determined Plaintiff had an RFC to perform:
light work as defined in 20 CFR 404.1567(b) except the claimant is able to perform work involving short cycle tasks with only occasional decision making. The claimant is unable to perform work requiring adherence to precise limits, tolerances, or standards or the directing, controlling, or planning of the activities of others, or influencing people's opinions, attitudes or judgments. The claimant is able to interact with supervisors occasionally. The claimant is unable to interact with co-workers or the public or perform work involving teamwork or tandem tasks.(Tr. 14).
1. Weight to Medical Opinions: Light Exertional Work Level
Plaintiff argues the ALJ erred in "finding the Plaintiff was able to do work at the light exertional level despite giving partial weight to the opinions of the Plaintiff's treating or examining providers." (Pl. Br. 14-15). Plaintiff asserts the ALJ did not rely on opinion evidence to find Plaintiff could perform more than sedentary work on a full-time basis. (Pl. Br. at 17). However, the ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). The ALJ correctly summarized the Dr. Richard Bennet's November 2014 workplace compensation assessment, stating:
On November 11, 2014, Dr. Bennett indicated that [Plaintiff] was capable of working in a sedentary type capacity with an anticipation that he will continue to improve and return to full duty activities. He found that the claimant has no restriction on sitting. He found that [Plaintiff] is able to stand and walk for one to four hours during the workday . . . He found that [Plaintiff] is able to lift and carry eleven to twenty pounds occasionally. He found that [Plaintiff] is able to perform grasping, fine manipulation, pushing, and pulling bilaterally. He found that [Plaintiff] is able to use his feet for gross and fine operations bilaterally (Exhibit 12F). This opinion is given partial weight to the extent that it indicates that [Plaintiff] was able to perform sustained work on a full-time basis as Dr. Bennett performed a full physical examination of [Plaintiff] prior to rendering his opinion but it appears to over-accommodate [Plaintiff's] ability to stand, walk and lift/carry,
especially in light of [Plaintiff's] activities of daily living such as walking to the store for groceries and riding a bike. Further, the form itself is internally inconsistent as it notes [Plaintiff] can never lift or carry 1-10 pounds but occasionally 1-20 pounds, then limits [Plaintiff] to 10 pound maximum work. Notably, however, Dr. Bennett also found that [Plaintiff] was likely to improve to the extent that he would be able to return to work without restriction.(Tr. 19). In the reply brief Plaintiff argues "Dr. Bennett and Nurse Practitioner Boyer assessed the Plaintiff with temporary physical limitations into the future but at no time did either of them actually release the Plaintiff without restriction." Reply at 1. As mentioned above, Plaintiff bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A). Dr. Bennet's workplace compensation opinion of temporary limitations demonstrates Plaintiff failed to meet the durational requirement of section 404.1509 which require that the medically determinable impairment "has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509; accord Cerrato v. Comm'r of Social Sec., 386 Fed. Appx. 283, 285-86 (3d Cir. 2010).
Moreover, as the ALJ observed, Dr. Bennet's opinion was internally inconsistent and substantial evidence supported allocating less weight to the opinion. Dr. Bennet's opinion indicated that Plaintiff can never lift or carry 1-10 pounds but occasionally 1-20 pounds, then limits Plaintiff to 10 pounds maximum of lifting and carrying work. (Tr. 516-17). The more that an opinion is supported and consistent with evidence, the more the opinion can be given greater weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c); Johnson v. Barnhart, 89 F. App'x 364, 367-68 (3d Cir. 2004). An ALJ may reject an examining physician's opinion in favor of a non-examining physician opinion based on contradictory evidence. See 20 C.F.R. 404.1527(c); Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004); Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936 (ALJ may rely on non-medical evidence which is inconsistent with treating physician's opinion); Torres v. Barnhart, 139 F. App'x 411, 414 (3d Cir. 2005) (affirming ALJ's rejection of treating opinion based on other evidence of record including claimant's own testimony); Kays v. Colvin, No. 1:13-CV-02468, 2014 WL 7012758, at *7 (M.D. Pa. Dec. 11, 2014).
Substantial evidence supports the ALJ's allocation of partial weight to the November 2014 opinion of Dr. Bennet as the opinion is internally inconsistent does not support a finding of long-term disability and does not represent the longitudinal picture of Plaintiff's limitations as represented by the record as a whole. (See Tr. 516-17); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Aside from Dr. Bennet's partially credited opinion of temporary sedentary limitations, Plaintiff fails to direct the court to any evidence to support his burden that he is only capable of sedentary limitation for the duration of twelve months or longer. The ALJ accurately explained that Dr. Bennett's conclusions on Plaintiff's ability to "stand, walk, and lift/carry" were not consistent with the benign physical examination findings, as well as Plaintiff's reports about his activities of daily living, including his ability to shop for groceries and ride a bike. (Tr. 19, 512). Moreover, in July 2014, nurse practitioner Nicole Boyer opined that Plaintiff would be able to return to work without restriction (Tr. 19, 452). In November 2014 Dr. Richard Bennet noted notwithstanding the reoccurring headaches, Plaintiff remained independent in all activities. (Tr. 511). Throughout the record, Plaintiff's physical examinations did not suggest difficulties in the ability to stand, walk, or lift and carry, but instead showed full muscle strength and only minimal and sporadic issues with gait due to his diabetic-related neuropathy. (See Tr. 20, 414, 447, 451, 512, 530, 539).
2. RFC Limitations for Contact with Supervisor, Public, and Coworkers
Plaintiff argues the Administrative Law Judge erred in "finding the Plaintiff could have occasional contact with supervisors but no contact with the public or coworkers." (Pl. Br. at 14-15). However, the ALJ gave Plaintiff the benefit of the doubt and assessed a greater limitation than identified by a medical opinion. The ALJ's decision to credit Plaintiff's testimony and allegations of disabling limitations in Plaintiff's favor and allot greater limitations than those enumerated in medical opinions is within the purview of the ALJ and does not amount to reversible error. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011) (ALJ was entitled to rely on state agency opinion, even though ALJ "added restrictions [the physician] did not deem necessary"); Golubosky v. Comm'r of Soc. Sec., No. CIV.A. 3:13-196, 2014 WL 3943029, at *7 (W.D.Pa. Aug. 12, 2014) (affirming decision where "giving Plaintiff the benefit of the doubt, the ALJ gave [the medical] opinion some weight, but noted that the record supported greater limitations"); Malfer v. Colvin, No. CIV.A. 12-169J, 2013 WL 5375775, at *4 (W.D.Pa. Sept. 24, 2013) ("the ALJ properly relied on, and accorded some weight to, [physician's] physical RFC assessment of plaintiff. . . . the ALJ did not simply rubber stamp [a physician's] opinion. Rather, the ALJ incorporated [the physician's] opinion into the RFC Finding . . . [and] gave plaintiff the benefit of doubt by limiting him to sedentary (instead of light) work and including additional restrictions to accommodate his functional limitations.").
3. RFC: Attention, Concentration and Pace
Plaintiff argues the ALJ erred in "failing to find that the Plaintiff had any deficits in maintaining attention, concentration and pace despite giving significant weight to the opinions of the consulting psychologist and state agency psychologist." (Pl. Br. at 15). Plaintiff concedes that the RFC's inclusion of short cycle tasks with only occasional decision-making which "may arguably be the same as a restriction to simple, repetitive tasks," however, argues that a restriction to simple repetitive tasks is insufficient to address a moderate limitation in attention and concentration opined by Dr. Richard Small in March 2014. (Pl. Br. at 22). Plaintiff does not direct the Court to any medical opinion that supports a finding of limitations with pace.
In the March 2014 Consultative Evaluation, Dr. Michael Caiazzo opined Plaintiff had: (1) no limitation in the ability understand, remember, and carry out instructions; (2) moderate limitation in the ability to interact appropriately with supervisors, co-workers, and the public; (3) moderate limitation in the ability to respond appropriately to usual work situations and changes in a routine work setting. (Tr. 363-64). Dr. Caiazzo opined that Plaintiff has experienced these limitations since the age of eight. (Tr. 364). In other words, Dr. Caiazzo opined that Plaintiff has experienced these moderate non-exertional impairments prior to his work history from 1990 to 2012 (Tr. 170-71) and prior to his allege onset of disability. (Tr. 364).
In the March 2014 state agency psychologist opinion, Dr. Richard Small gave Dr. Caiazzo's March 2014 opinion great weight and opined that Plaintiff experienced: (1) no limitations with memory; (2) not significantly limited in ability to carry out very short and simple instructions; (3) not significantly limited in ability to carry out detailed instructions (4) moderately limited in ability to maintain attention and concentration for extended periods; (5) not significantly limited in ability to perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances; (6) not significantly limited in the ability to sustain an ordinary routine without special supervision; (7) not significantly limited in the ability to work in coordination with or in proximity to others without being distracted by them; (8) not significantly limited in the ability to make simple work-related decisions; (9) not significantly limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (11) moderately limited in the ability to interact with the general public; (12) not significantly limited in the ability to ask simple questions or request assistance; (13) not significantly limited in the ability to accept instructions and respond appropriately to criticism from supervisors; (14) not significantly limited in the ability to get along with coworkers of peers without distracting them or exhibiting behavioral extremes; (15) not significantly limited in the ability to maintain socially appropriate behavior and to adhere to basic standard of neatness and cleanliness; (16) moderately limited in the ability to respond appropriately to changes in the work setting; (17) not significantly limited in the ability to be aware of normal hazards and take appropriate precautions; (18) not significantly limited in the ability to travel in unfamiliar places or use public transportation, and; (19) not significantly limited in the ability to set realistic goals or make plans independently of others. (Tr. 91-93). Even with the above enumerated moderate limitations, Plaintiff was "able to meet the basic mental demands of simple, routine tasks on a sustained basis despite the limitations resulting from the impairment." (Tr. 93).
Regarding the medical record after the March 2014 opinions, Plaintiff points to reoccurring migraines noted by Ms. Boyer as evidence that debilitating post-concussion symptoms (exacerbation of preexisting migraine condition (Tr. 415)) remain through January 2015 (Reply Br. at 1-2). In a January 2015 medical record Ms. Boyer noted that Plaintiff took Advil without significant alleviation of symptoms. (Tr. 450). Ms. Boyer also noted past recommendation of Topamax and diclofenac sodium for his headache symptoms (July 2014 (Tr. 452)); however, he did not think he ever took diclofenac and could not recall if Topamax alleviated his headache symptoms and no longer could take the medications due to loss of insurance. (Tr. 18, 446-47). In February 2015, Plaintiff reported that he regained insurance. (Tr. 501). During the hearing, Plaintiff raised the issue of increased auditory hallucinations since the May 2014 fall (Tr. 39-40), and the ALJ addressed the hallucinations in the medical history (Tr. 18). However, Plaintiff does not present the hallucinations as an issue on appeal. In January 2015, Plaintiff presented with no impaired attention span or concentration. (Tr. 498-99). In February 2015, Plaintiff exhibited depressed mood and some psychomotor retardation and complained of auditory hallucinations, lack of motivation, and low energy, but he was cooperative, maintained good eye contact, had normal speech, and his memory, intelligence, insight, and judgment appeared normal. (Tr. 503). In May 2015, Plaintiff reported experiencing 2-3 auditory hallucinations a week and Dr. Ikram found Plaintiff cooperative, with unremarkable appearance and psychomotor activity, normal speech, euthymic mood, congruent affect, linear and goal directed thought process, and no hallucinations or delusions. (Tr. 551). Records from 2015 indicate that Plaintiff presented with appropriate recent and remote memory and concentration. (Tr. 447, 451, 499). Substantial evidence supports the ALJ's allocation of great weight to the March 2014 psychological opinions as Plaintiff does not direct the court to evidence of significant deterioration of symptoms following the March 2014 opinions. See Gonzalez v. Berryhill, 340 F. Supp. 3d 424, 432 (E.D. Pa. 2018) (quoting) Ladd v. Astrue, No. 12-4553, 2014 WL 2011638, at *1 n. 2 (E.D. Pa. May 16, 2014) ("the assessment of a medical consultant is not 'rendered less weighty because it does not consider medical records that did not exist at the time the assessment was made.'").
As noted above, the ALJ determined that Plaintiff had an RFC to perform work involving short cycle tasks with only occasional decision making and was unable to perform work requiring adherence to precise limits, tolerances, or standards and was unable to perform work involving teamwork or tandem tasks. (Tr. 14). This RFC is supported by substantial evidence. Regarding pace, Dr. Small opined that Plaintiff was "not significantly limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." (Tr. 92). Regarding the ability to maintain attention and concentration, Dr. Small opined that Plaintiff was "moderately limited in ability to maintain attention and concentration for extended periods." (Tr. 91). The Court finds no contradiction between the RFC with Dr. Small's opinion and the totality of the record. Substantial evidence supports the ALJ's non-exertional limitations in the RFC.
Although in the opening brief Plaintiff stated short cycle tasks "may arguably be the same as a restriction to simple, repetitive tasks" (Pl. Br. at 22), in the reply brief, Plaintiff asserts "short cycle tasks are not necessarily simple, routine tasks." Reply Br. at 2. In support of the argument that short cycle tasks are not simple and routine Plaintiff points out that the video surveillance monitor job requires a reasoning level 3 (Reply at 2-3) which the Dictionary of Occupational Titles define as the ability to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." DICOT 379.367-010 (Westlaw citation as "DICOT"). The Court points out that for all the jobs identified, video surveillance monitor (DICOT 379.367-010), stuffer (DICOT 780.687-046) and potato chip sorter (DICOT 526.687-010) all indicate a level "R" for "performing REPETITIVE or short-cycle work." The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO) lists characteristics for each job catalogued in the DOT. The SCO refers to another Department of Labor publication, the 1991 Revised Handbook for Analyzing Jobs (RHAJ) (SCO Appendix E & Appendix ID). The RHAJ identifies "Temperaments" and "R," means "repetitive or short-cycle" work. U.S. Dep't of Labor, Revised Handbook for Analyzing Jobs at Chapter 10-1 (1991) (chapter 10); The RHAJ further explained that "R" indicates "performing a few routine and uninvolved tasks over and over again according to set procedures, sequence, or pace with little opportunity for diversion or interruption. Interaction with people is included when it is routine, continual, or prescribed." U.S. Dep't of Labor, Revised Handbook for Analyzing Jobs at Chapter 10-2 (1991) (chapter 10); accord Gaspard v. Soc. Sec. Admin. Com'r, 609 F. Supp. 2d 607, 614-15 (E.D. Tex. 2009). The Third Circuit found no contradiction between and RFC requiring "simple" jobs with a reasoning level of 2 requiring the application of "commonsense understanding to carry out detailed but uninvolved written or oral instructions." See Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004). The Court finds "short cycle" to mean "simple and repetitive" is an interpretation supported by the above cited sources.
Dr. Small opined that Plaintiff can carry out detailed instructions and ultimately is "able to meet the basic mental demands of simple, routine tasks on a sustained basis despite the limitations resulting from the impairment." (Tr. 91-93). Dr. Small's opinion suggests that the ability to carry out detailed instructions is compatible with being able to carry out simple and routine tasks. See Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004). This Court is persuaded by the analysis in Mechling v. Berryhill, where the court rejected the plaintiff's argument that her RFC did not adequately address moderate limitations in concentration, persistence, and pace and the RFC conflicted with a level three reasoning required for the surveillance system monitor. Mechling v. Berryhill, No. CV 17-531, 2018 WL 3388460, at *1 (W.D. Pa. July 12, 2018). Like the court in Mechling v. Berryhill, the RFC limitations in this case "went far beyond a limitation to simple, repetitive one or two-step tasks or 'unskilled work' and properly accounted for Plaintiff's deficiencies in concentration, persistence, and pace." See Mechling v. Berryhill, No. CV 17-531, 2018 WL 3388460, at *1 (W.D. Pa. July 12, 2018). Similar to the RFC analyzed by the court in Mechling, this RFC added limitations of occasional decision making, forbade work "requiring adherence to precise limits, tolerances, or standards or the directing, controlling, or planning of the activities of others, or influencing people's opinions, attitudes or judgments," limited interaction with supervisors and removed the distractions of working with co-workers, working in the public or as part of a team. ." See Mechling v. Berryhill, No. CV 17-531, 2018 WL 3388460, at *1 (W.D. Pa. July 12, 2018). These added limitations adequately address the moderate difficulties with attention and concentration identified in Dr. Small's March 2014 opinion.
Regarding Plaintiff's argument the ALJ listing video surveillance monitor (DICOT 379.367-010) requires a level 3 reasoning which conflicts with the moderate difficulties in attention and concentration, the ALJ identified jobs as a stuffer (DICOT 780.687-046) and as a potato chip sorter (DICOT 526.687-010) and which both have a reasoning level of 1. Even if the ALJ erred in concluding that Plaintiff was capable of performing a job as a video surveillance monitor, such would amount to harmless error as the ALJ identified other jobs requiring level 1 reasoning. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
4. Plaintiff's Credibility
Plaintiff argues the ALJ erred in "failing to find the Plaintiff fully credible." (Pl. Br. at 14-15). Plaintiff states the ALJ "may not dismiss the allegations simply is not credible without pointing to contrary medical evidence." (Id. at 25). With regards to non-exertional impairments, Plaintiff's arguments are without merit. As explained above, Dr. Small opined that Plaintiff was still capable of working notwithstanding his non-exertional limitations.
Plaintiff also argues that his "complaints of numbness and pain in his feet were supported by objective verification of diminished tactile sensation in both feet with monofilament testing." (Pl. Br. at 24) (citing Tr. 528, 530). Plaintiff fails to direct the Court to a medical opinion specifically explaining how diminished tactile sensation in the feet prevents Plaintiff from carrying out work functions. The mere diagnosis of an impairment or presence of a disorder alone will not establish entitlement to benefits; rather, the claimant must show how the alleged impairment or disorder results in disabling limitations. See Walker v. Barnhart, 17 2 F. App'x 423, 426 (3d Cir. 2006) ("Mere presence of a disease or impairment is not enough. A claimant must also show that his disease or impairment caused functional limitations that precluded him from engaging in any substantial gainful activity.") Ultimately, the outcome of the case depends on the demonstration of the functional limitations of the disease or impairment rather than the mere diagnosis of the disease or name of the impairment. See Walker v. Barnhart, 172 F. App'x 423, 426 (3d Cir. 2006). When given an opportunity during the December 2015 hearing, Plaintiff's attorney did not inquire about any sitting limitations. (Tr. 82-83). Plaintiff does not allege any exacerbation of symptoms between the allegations of foot numbness in a December 2012 medical record (Tr. 299) and the December 2015 allegation (Tr. 528-530). The Court notes that foot numbness is present in the record before Plaintiff's disability onset date of July 23, 2013. As explained above with the harmless error analysis, considering the ALJ's finding that Plaintiff was capable of the sedentary job as a surveillance monitor (DICOT 379.367-010), even if Plaintiff showed a decrease in function due to foot numbness, Plaintiff fails to show that the degree of foot numbness rendered Plaintiff incapable of job that requires sitting the majority of the time. Based on the totality of the record, substantial evidence supports the ALJ's credibility determination. /// /// ///
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to 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.DATED: August 2, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE