Opinion
Civil No. 3:17-CV-2089
11-15-2018
LEROY E. TOMLINSON, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security Defendant.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
Plaintiff Leroy E. Tomlinson ("Tomlinson") asserts that he has been disabled and unable to work since June 30, 2012, due to a number of conditions, including a neck injury, spinal stenosis, degenerative disc issues, arthritis of the neck, chronic neck pain, migraines, muscle spasms, limited neck mobility/movement, anxiety, and "fusion c2." Tr. 212. He brought this action pursuant to 42 U.S.C. §405(g), seeking review of a final decision of defendant Commissioner of Social Security (the "Commissioner"), who denied Tomlinson's claim for disability benefits. For the reasons explained below, we recommend that the final decision of the Commissioner denying Tomlinson's claim be AFFIRMED.
II. Background
The Court refers to the transcripts provided by the Commissioner. See Doc. 9-1 through Doc. 9-27. Tomlinson protectively filed a Title II application for disability insurance benefits on August 3, 2014, alleging June 30, 2012 as the onset date of disability. Tr. 10. Tomlinson's claim was initially denied on November 17, 2014. Id. ALJ Michelle Wolfe ("ALJ Wolfe") held a hearing for Tomlinson's claims on September 27, 2016, at which Tomlinson appeared and testified with the assistance of counsel. Id. After his hearing, Tomlinson amended his alleged onset date to February 4, 2015. Id. ALJ Wolfe denied Tomlinson's claim and found Tomlinson to be not disabled in a written decision dated December 16, 2016. Id. at 22. Tomlinson subsequently filed a timely request for review of ALJ Wolfe's decision with the Appeals Council, and it was denied September 15, 2017. Id. at 1. On November 14, 2017, Tomlinson filed this federal action. Doc. 1.
The facts of this case are well known to the parties and will not be repeated here. Instead, we will recite only those facts which bear on Tomlinson's claims.
III. Legal Standards
A. Substantial Evidence Review - the Role of This Court
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); 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 (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). 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that the claimant 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 [Commissioner]'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. Initial Burdens of Proof, Persuasion and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(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).
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), 404.1545(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §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. 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(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
IV. ALJ Decision
In her decision dated December 16, 2016, ALJ Wolfe held that Tomlinson was not disabled within the meaning of the Social Security Act. Tr. 22. At step one, ALJ Wolfe determined that Tomlinson has not engaged in substantial gainful activity since February 4, 2015. Id. at 12. At step two, ALJ Wolfe found that Tomlinson suffers from the following severe impairments: (1) status post cervical fusion with myelomalacia and (2) cervical cord syndrome status post cervical occipital - C4 posterior spinal fusion. Id. at 13.
At step three, ALJ Wolfe determined that Tomlinson does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 15. Particularly, ALJ Wolfe considered Listing 1.04 and concluded that Tomlinson's impairments do not meet the criteria of this listing. Id.
Between step three and step four, ALJ Wolfe found that Tomlinson has:
the residual functional capacity to perform light work as defined in 20 C.F.R. [§] 404.1567(b) except he is limited to a sit/stand option with each interval being a maximum of one hour between transfers, but not off task when transferring. He is limited to occasional stooping, crouching, kneeling, and climbing, but can never climb ladders, ropes, or scaffolds. He is limited to no crawling, and no pushing, pulling or overhead reaching with the upper extremities. He must avoid concentrated exposure to temperature extremes of cold
and heat, wetness and humidity, fumes, odors, dusts, gases, and poor ventilation, as well as hazards including moving machinery and unprotected heights.Id. at 15.
In making these findings, ALJ Wolfe gave great weight to non-examining state psychological consultant Dr. John D. Chiampi's ("Dr. Chiampi") psychiatric review technique, in which he found that Tomlinson has no restrictions in activities of daily living or repeated episodes of decompensation and only mild difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace. Id.
ALJ Wolfe also gave great weight to non-examining state agency medical consultant Dr. Anne C. Zaydon's ("Dr. Zaydon") RFC Assessment, in which she found that Tomlinson is capable of light exertional work with some environmental and postural limitations. Id. at 19. ALJ Wolfe also gave great weight to treating surgeon Dr. W. Fred Hess's ("Dr. Hess") April 2, 2015 opinion that Tomlinson was cleared to return to light duty work with a 25 pound lifting restriction as a result of his recovery from his February 2015 surgery. Id.
Next, ALJ Wolfe assigned "very little weight" to a treatment note from Tomlinson's April 9, 2012 appointment with primary care physician Dr. Hottenstein, tr. 19, which stated "[n]ote given for no work until cleared by Dr. Hess. No lifting, no bending, no twisting, no turning of neck right now." Id. at 311. ALJ Wolfe assigned this note very little weight because later treatment notes reveal that Tomlinson was ultimately cleared to return to work in 2012, and "these restrictions regard a period prior to the amended alleged onset date, and do not contemplate [Tomlinson's] recovery or functional abilities after his February 2015 surgery." Id. at 19.
ALJ Wolfe also assigned very little weight to consultative medical examiner Dr. Justine Magurno's ("Dr. Magurno") November 5, 2014 Medical Source Statement, in which she opined that Tomlinson can never lift or carry any weight; can sit for up to four hours a day; stand for up to three hours a day; walk for up to an hour a day; and has various manipulative, postural, and environmental limitations. Id. at 20. ALJ Wolfe assigned this opinion very little weight because Tomlinson was performing substantially gainful activity at a light job; the opinion was given prior to Tomlinson's February 2015 surgery; Tomlinson was cleared to perform light duty work with a lifting restriction in April of 2015; and "medical records following [Tomlinson's] surgery revealed physical and neurological examinations generally within normal limits." Id.
Additionally, ALJ Wolfe assigned little weight to the third party statement provided by Tomlinson's wife, Kelly S. Tomlinson, ("Ms. Tomlinson") who commented on Tomlinson's daily activities. Id. ALJ Wolfe assigned this statement little weight because it is inconsistent with Tomlinson's testimony that his constant pain causes him to have to lay down; it is inconsistent with his testimony that he continues to work two hours per day; Ms. Tomlinson is not medically trained to make medical observations; and she is biased by virtue of her relationship to Tomlinson. Id.
ALJ Wolfe also found that Tomlinson's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record" for various reasons stated in the RFC assessment. Id. at 16.
At step four, ALJ Wolfe determined that Tomlinson is unable to perform any of his past relevant work as a custodian, a delivery driver, a laborer, or a tire tech. Id. at 20. At step five, after considering Tomlinson's age, education, work experience, and RFC, ALJ Wolf determined that there are jobs that exist in significant numbers in the national economy that Tomlinson can perform. Id. at 21. This finding relied on the testimony of vocational expert Paul A. Datti ("the VE"). Id. The VE testified at the administrative hearing that an individual with Tomlinson's RFC and limitations, as adjudged by ALJ Wolfe, could perform the requirements of representative occupations such as an information clerk, a travel clerk, a call out operator, an assembler, a sorter, and a stone setter. Id. Ultimately, ALJ Wolfe found that Tomlinson was not disabled under sections 216(i) and 223(d) of the Social Security Act. Id. at 22.
V. Discussion
Tomlinson raises four issues on appeal: (1) Did ALJ Wolfe improperly determine that Tomlinson did not meet Listing 1.04(A)? (2) Did ALJ Wolfe err in finding that Tomlinson's migraine headaches are a nonsevere impairment? (3) Did ALJ Wolfe properly consider Tomlinson's allegations of pain? and (4) Did ALJ Wolfe violate SSR 96-8p?
A. ALJ Wolfe's Step Three Determination is Supported by Substantial Evidence.
Tomlinson asserts that ALJ Wolfe erroneously found that he does not meet Listing 1.04(A) because the evidence indicates that Tomlinson has a disorder of the cervical spine, and because consultative examiner Dr. Magurno found in November of 2014 that Tomlinson had weakness in his upper and lower extremities and a limited range of motion in his spine. Doc. 10 at 8-9. The Commissioner responds that this argument lacks merit because the ALJ cites to evidence demonstrating that Tomlinson does not meet all of the criteria for Listing 1.04, and because Tomlinson fails to offer any evidence that establishes Tomlinson has any nerve root compression. Doc. 11 at 12-14.
At step three, the ALJ is required to consider whether a claimant has an impairment or combination of impairments that meets or equals a listing. 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment meets or equals one of the listings, the claimant will be found per se disabled. 20 C.F.R. § 404.1520(d). In order for a claimant to meet a listing at step three, the claimant must meet stringent legal standards. These standards require that the claimant "meet all of the specified medical criteria" in a listing, and the Supreme Court explains that "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). Additionally, the regulations instruct that a claimant's impairment "cannot meet the criteria of a listing based only on a diagnosis. To meet the requirements of a listing, [the claimant] must have a medically determinable impairment(s) that satisfies the criteria in the listing." 20 C.F.R. § 404.1525(d).
Listing 1.04(A) concerns disorders of the spine which result in the compromise of a nerve root or the spinal cord with:
[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).20 C.F.R. Part 404, Subpart P, Appendix 1, Part A1, 1.04(A). Though Tomlinson cites to an MRI indicating that he has a disorder of the cervical spine, he does not point to recent evidence that demonstrates that he meets all of the requirements of Listing 1.04(A). Doc. 10 at 8.
In contrast, at step three of ALJ Wolfe's decision, she points to recent medical records that indicate Tomlinson does not meet the requirements of Listing 1.04(A). Tr. 15. This evidence includes Dr. Hottenstein's examination notes from July 6, 2015 indicating that Tomlinson's motor strength in his extremities was a five out of five, sensation to light touch was intact, and his reflexes were normal; id. at 525, Dr. Hottenstein's examination notes from October 6, 2015, indicating that Tomlinson had normal gait, normal and symmetric reflexes, and no focal motor/sensory deficits; id. at 534, Dr. Hottenstein's examination notes from July 29, 2016 indicating that Tomlinson had normal reflexes, his motor strength was a five out of five, he had intact sensation, and he had a normal gait with no ataxia or limp; id. at 571, and a CT scan of the cervical spine that revealed no acute osseous abnormality of the cervical spine, intact hardware with no evidence of loosening since his last surgery, moderate narrowing of the spinal canal at the C1-C2 level, and stable multilevel degenerative changes of the cervical spine. Id. at 1468. Because these findings from Dr. Hottenstein indicate that Tomlinson does not have motor loss accompanied by sensory or reflex loss, per the requirements of Listing 1.04(A), we find that ALJ Wolfe's conclusion that Tomlinson does not meet Listing 1.04 is supported by substantial evidence.
This CT scan also noted that previously a screw had been identified as extending through and terminating with the spinal canal, and that it was still in that same position. Tr. 1468.
Alternatively, Tomlinson asserts that ALJ Wolfe's analysis for Listing 1.04 does not provide for meaningful judicial review. Doc. 10 at 10. Tomlinson argues that ALJ Wolfe failed to discuss the evidence that she considered; failed to explain her reasoning for this conclusion; and that such an omission requires remand. Id. In support of this argument, Tomlinson refers to four Third Circuit cases generally supporting the tenet that an ALJ must make specific findings and provide his or her reasoning behind his or her decision. Id. It is true that an ALJ is required to make specific findings of fact and explain his or her reasoning in making those findings; however, we find that Tomlinson's argument here fails.
Tomlinson cites to Cotter v. Harris, 642 F.2d 700, 704-705 (3d Cir. 1981) ("an administrative decision should be accompanied by a clear and satisfactory explication of the basis on which it rests"); Kephart v. Richardson, 505 F.2d 1085, 1089 (3d Cir. 1974) ("[i]t is incumbent upon the examiner to make specific findings") (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)); Torres v. Commissioner of Social Security, 279 Fed. Appx. 149, 152 (3d Cir. 2008) ("[t]his court requires the ALJ to set forth the reasons for his decisions.") (citing Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000)); and Burnett 220 F.3d at 119 ("this court requires the ALJ to set forth the reasons for his decision.") (citing Cotter, 642 F.2d at 704-705).
At step three, ALJ Wolfe concluded that Tomlinson's neck problems do not meet Listing 1.04; explained that the case record does not demonstrate that the elements of Listing 1.04 have been met; and pointed to specific medical records in support of her conclusion. Tr. 15. Though ALJ Wolfe's discussion was limited, we do not find that it barred proper judicial review because she, indeed, provided reasoning and cited evidence to support that reasoning in making her conclusion. Furthermore, ALJ Wolfe supplemented her step three finding with a detailed factual discussion in the RFC assessment, which clearly indicates that ALJ Wolfe carefully considered the medical evidence of record in combination with Tomlinson's subjective complaints. Id. at 16-20. Therefore, when ALJ Wolfe's decision is read as a whole, it is clear how she determined that Tomlinson does not meet the requirements of Listing 1.04. In light of the foregoing, we find that ALJ Wolfe did not err at step three and that remand is not warranted on this ground.
B. ALJ Wolfe's Step Two Determination Is Not Erroneous.
Tomlinson next asserts that ALJ Wolfe erroneously found that Tomlinson's migraines were nonsevere because ALJ Wolfe did not "fully and completely" consider relevant medical evidence and Tomlinson's testimony. Doc. 10 at 11-12. In response, the Commissioner submits that ALJ Wolfe reasonably determined that Tomlinson's headaches are a nonsevere impairment because the medical evidence gives no indication to the contrary. Doc. 11 at 16.
At step two of the decision process, the ALJ determines whether a claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). With regard to this inquiry at step two, the Third Circuit Court of Appeals is clear that this inquiry is a de minimis screening device used to cast out meritless claims. See Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003); McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004). Therefore, in the Third Circuit, it is a minimal threshold that an impairment must meet in order for it to qualify as severe, and "[i]f the evidence presented by the claimant presents more than a 'slight abnormality[,]' the step-two requirement of 'severe' is met, and the evaluation process should continue." Newell, 347 F.3d at 546 (referencing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). Furthermore, an ALJ will not find that an impairment is severe unless "it significantly limits the claimant's physical or mental ability to do 'basic work activities,' i.e., physical abilities and aptitudes necessary to do most jobs." Lopez v. Colvin, No. 1:15-CV-01139, 2016 WL 4718153, at *5 (M.D. Pa. Aug. 3, 2016) (citing 20 C.F.R. §§ 404.1521(b) and 416.921(b)).
The burden is on the claimant to show that an impairment qualifies as severe. Bowen, 482 U.S. at 146 n.5. Thus, a claimant must provide evidence that shows his or her impairment "significantly limit[s] his or her ability to do basic work activities or impair[s] his or her capacity to cope with the mental demands of working," because "objective medical diagnoses alone are insufficient to establish severity at step two." Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1520(c); 416.920(c); 404.1521(a); 416.921(a); Salles v. Comm'r of Soc. Sec., 229 Fed. Appx. 140, 144-145 (3d Cir. 2007)).
When an ALJ incorrectly determines at step two that a medical impairment is not severe, the ALJ's decision will not be considered deficient if there was another medical impairment that the ALJ found to be severe, which subsequently allowed the ALJ to consider all of the claimant's impairments in the RFC assessment at step four. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1523, 416.923, 404.1545(a)(2), 416.945(a)(2); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); Shannon v. Astrue, No. 4:11-CV-00289, 2012 WL 1205816, at *10-11 (M.D. Pa. Apr. 11, 2012); Bell v. Colvin, No. 3:12-CV-00634, 2013 WL 6835408, at *8 (M.D. Pa. Dec. 23, 2013)). In other words, as long as a claimant's medical impairment is properly considered in the RFC, incorrectly finding that an impairment is nonsevere is harmless error.
At step two, ALJ Wolfe determined that Tomlinson's headaches/migraines were medically determinable nonsevere impairments. Tr. 13. In support of this finding, ALJ Wolfe explained that Tomlinson reported having much less severe headaches after being prescribed the medication amitriptyline and by taking ibuprofen one to two times a day. Id. ALJ Wolfe also noted that Tomlinson declined to receive injections for pain management of these headaches. Id. Tomlinson argues that this is inadequate consideration of the medical evidence because ALJ Wolfe does not discuss Tomlinson's January 29, 2016 and April 29, 2016 appointments with Dr. Hottenstein, where Tomlinson's medications were increased due to complaints of increased pain and frequency of his headaches. Doc. 10 at 11-12. Tomlinson asserts that this lack of discussion indicates that ALJ Wolfe did not consider all of the medical evidence relevant to this impairment. Id. at 12.
Though ALJ Wolfe does not specifically cite to the notes from Tomlinson's January 29, 2016 and April 29, 2016 appointments with Dr. Hottenstein in her discussion at step two, ALJ Wolfe's decision indicates that she did indeed consider these medical records discussing Tomlinson's headaches. We can infer that ALJ Wolfe considered the notes from these 2016 appointments in her decision because these notes were on pages 168 and 183 of Exhibit 3F, which are pages ALJ Wolfe specifically cited in the RFC analysis when discussing Tomlinson's neck pain. Tr. 18. Likewise, ALJ Wolfe further demonstrated her consideration of the most recent and relevant medical evidence by referencing medical notes from appointments with Dr. Hottenstein subsequent to the January and April 2016 appointments. Id. Because it is apparent that ALJ Wolfe considered this relevant evidence, we find that Tomlinson's argument falls flat on this ground.
Tomlinson also asserts that ALJ Wolfe's findings at step two were erroneous because she did not fully consider Tomlinson's testimony about his headaches. Doc. 10 at 12. Similarly to the discussion above, though ALJ Wolfe did not cite to Tomlinson's testimony about his headaches in step two, she made several references in the RFC analysis to the part of Tomlinson's testimony where he described his headaches and other pain. Tr. 16. Because ALJ Wolfe's decision shows that she considered the allegations that Tomlinson made right before and right after he described his headaches, see tr. 79-80, we can infer that ALJ Wolfe considered Tomlinson's testimony about his headaches during the decision process. Therefore, we find that ALJ Wolfe did not err in failing to explicitly discuss Tomlinson's testimony about his headaches at step two. In sum, because ALJ Wolfe demonstrated that she considered Tomlinson's headaches and the relevant evidence concerning Tomlinson's headaches, we find that ALJ Wolfe did not err at step two.
C. ALJ Wolfe Properly Considered Tomlinson's Allegations of Pain.
Next, Tomlinson asserts that ALJ Wolfe erred in finding that Tomlinson's allegations of pain were not entirely consistent with the evidence of record because ALJ Wolfe ignored the methods that Tomlinson uses to find relief from pain; ignored the medications that Tomlinson uses for pain; made a speculative inference about the evidence of record; and based her RFC on "outdated or incomplete" evidence. Doc. 10 at 12-16.
As an initial matter, it is the ALJ's responsibility as the finder of fact to evaluate the credibility of witnesses. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). Because of this responsibility, the Court "ordinarily defer[s] to an ALJ's credibility determination because he or she has the opportunity at a hearing to assess a witness's demeanor." Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (referencing Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001)). Though the "statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. § 404.1529(a)) ("statements about your pain or other symptoms will not alone establish that you are disabled."). Additionally, the Third Circuit is clear that "[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence." Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). If the claimant's allegations about his or her symptoms are inconsistent with the evidence of record, the ALJ "will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities." SSR 16-3p, 2016 WL 1119029 at 7.
SSR 16-3p superseded SSR 96-7p discussing the evaluation of a claimants symptoms. The Court will refer to SSR 16-3p because at the time of the ALJ decision, that was the SSR in effect. Though SSR 16-3p no longer uses the term "credibility" when evaluating a claimant's symptoms, the analysis appears to be substantively the same as before.
The Court notes that the version of SSR 16-3p to which it refers in this R&R was published March 16, 2016, however, it was revised on March 24, 2016 to include the correct effective date, March 28, 2016. See Social Security Administration, Policy Interpretation Ruling, Social Security Ruling,16-3p, https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html (follow "Corrected by Federal Register, Vol. 81, No. 57, page 15776" hyperlink) (last visited Oct. 31, 2018). --------
20 C.F.R. § 404.1529(a) (effective June 13, 2011 to March 26, 2017) states that the ALJ is to consider all available evidence of record when the ALJ evaluates the intensity and persistence of a claimant's symptoms. When evaluating a claimant's symptoms, the ALJ follows a two-step process in which the ALJ must determine whether a medically determinable impairment could reasonably be thought to cause the claimant's alleged symptoms, and then must evaluate the alleged symptoms in light of the entire record. SSR 16-3p, 2016 WL 1119029 at 2, 4. The factors an ALJ uses in evaluating the intensity, persistence, and limiting effects of an individual's symptoms are those that are listed in 20 C.F.R. § 404.1529(c)(3). Id. at 7. These factors are: (1) the claimant's daily activities; (2) location, duration, frequency, and intensity of pain/symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of medications used; (5) other treatment received by claimant for relief of symptoms; (6) any measures claimant takes or has taken to get relief from symptoms (e.g., standing every so often); and (7) other factors related to claimant's functional imitations and restrictions because of their symptoms. 20 C.F.R. § 404.1529(c)(3). Keeping these factors in mind, SSR 16-3p directs that with each case the ALJ "will discuss the factors pertinent to the evidence of record." SSR 16-3p, 2016 WL 1119029 at 7.
Tomlinson initially asserts that ALJ Wolfe ignored Tomlinson's attempts to find relief from his pain and the medications that Tomlinson takes for his pain. Doc. 10 at 14. We find that this argument is without merit. ALJ Wolfe specifically noted in her decision that Tomlinson uses ibuprofen, amitriptyline, tr. 13, fentanyl patches, id. at 17, 18, and oxycodone, in order to relieve his pain. Id. at 18. ALJ Wolfe also noted that Tomlinson testified that his medications cause "him to feel very tired, groggy and occasionally wobbly;" that he testified he needs to lay down constantly to relieve pressure from his neck; id. at 16, that he reported he lays down when his neck pain is flaring up; and that he reported he needs "to change positions from standing to sitting and vice versa throughout the day to relieve pain." Id. at 18. We find that ALJ Wolfe's various references to how Tomlinson was treating and dealing with his pain clearly demonstrate that ALJ Wolfe did not ignore Tomlinson's attempts to find relief from his pain. Therefore, this part of Tomlinson's argument falls flat.
Tomlinson next asserts that ALJ Wolfe erroneously made a speculative inference when she stated that "there is no evidence that any more surgery was scheduled, and [Tomlinson] testified that he was no longer a surgical candidate, indicating that [Tomlinson's] symptoms stabilized." Doc. 10 at 15. We are not persuaded by this argument.
ALJ Wolfe prefaced the above quoted conclusion by observing how Dr. Hess noted that he would hold off on surgery if Tomlinson's symptoms stabilized. Tr. 18. Also, after making this conclusion, ALJ Wolfe observed that Tomlinson's more recent treatment notes from January 2016 document Tomlinson reporting that his pain was stable, although it had recently increased, and that in notes from July of 2016, Tomlinson again reported that his pain was stable. Id. This evidence, in conjunction with the fact that Tomlinson has not had any surgery and did not produce any evidence indicating that he is scheduled for surgery, gives the impression that Tomlinson's symptoms are stabilized; therefore, we find that ALJ Wolfe did not make a speculative inference when she considered Tomlinson's allegations of pain in the RFC assessment.
Tomlinson further asserts that ALJ Wolfe improperly considered Tomlinson's allegations of pain because she relied on the outdated/incomplete medical opinions from Drs. Zaydon and Hess. Doc. 10 at 15-16. We find that this part of Tomlinson's argument fails because these opinions are not the only medical evidence upon which ALJ Wolfe relied in assessing the consistency of Tomlinson's allegations of pain. As we have discussed in the above paragraphs, there are more recent medical records that ALJ Wolfe referenced in support of her RFC that cast doubt on Tomlinson's allegations of pain. Also, ALJ Wolfe explained that she gave these opinions great weight because they are consistent with the more recent medical records that she discussed earlier in the RFC assessment before she weighed the opinion evidence. Tr. 19. Because these medical opinions are consistent with other substantial evidence that supports ALJ Wolfe's conclusion that Tomlinson's allegations of pain are not entirely consistent with the record, we find that it was not error for ALJ Tomlinson to rely on these opinions in assessing Tomlinson's allegations of pain. In sum, based on the foregoing, ALJ Wolfe properly considered Tomlinson's pain in the RFC Assessment. D. ALJ Wolfe Properly Considered the Impact of Tomlinson's Headaches, Migraines, and Mental Health Impairments on His Ability to Work.
Finally, Tomlinson asserts that ALJ Wolfe failed to consider Tomlinson's migraines/headaches and mental health impairments (nonsevere impairments) in the RFC assessment and argues that this omission warrants remand because it is contrary to the requirements of SSR 96-8p. Doc. 10 at 17. We disagree. The language that Tomlinson quotes from SSR 96-8p reads:
[i]n assessing the RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.' While a 'not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may - when considered with limitations or restrictions due to other impairments - be critical to the outcome of a claim. For example, in combination with limitations imposed by an individual's other impairments, the limitations due to such a 'not severe' impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.SSR 96-8p, 1996 WL 374184 at 5.
This language simply states that the limitations from all of a claimant's impairments must be considered in assessing the RFC. There is nothing stating how an ALJ must go about considering nonsevere impairments, and Tomlinson does not point to any law specifying what constitutes proper consideration of nonsevere impairments. Though ALJ Wolfe does not directly address Tomlinson's mental health impairments and migraines/headaches in his RFC assessment, we believe that when ALJ Wolfe's decision is read as a whole, it demonstrates that she considered these nonsevere impairments in formulating the RFC. We find that ALJ Wolfe's decision demonstrates that she considered Tomlinson's migraines/headaches and mental health impairments in formulating the RFC because she specifically discussed the impact of these impairments in her step two analysis. Tr. 13-15. Such discussion evinces that ALJ Wolfe grappled with these impairments and was aware of how they impacted Tomlinson's work performance per the regulations. Without some indication of how ALJ Wolfe's failure to specifically discuss these impairments in the RFC assessment caused Tomlinson harm, we find that there is no cause for remand on this ground. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."). Therefore, ALJ Wolfe did not err at step two.
VI. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that:
1. Final Judgment should be entered in favor of the Commissioner of Social Security and against Tomlinson as set forth in the following paragraph;The parties are further placed on notice that pursuant to Local Rule 72.3:
2. The final decision of the Commissioner of Social Security denying Tomlinson's applications for benefits should be AFFIRMED and the Clerk of the Court should be instructed to close this case.
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Submitted November 15, 2018
S/Susan E . Schwab
Susan E. Schwab
United States Magistrate Judge