Opinion
CIVIL NO.: 4:18-CV-02188
03-03-2020
SHANE P. WELCH, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
(Judge Brann) () REPORT AND RECOMMENDATION
I. Introduction.
This is a social security action brought under 42 U.S.C. § 405(g). The plaintiff, Shane P. Welch ("Welch"), seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability benefits. Because the Commissioner's decision is supported by substantial evidence, we recommend that the court affirm that decision.
II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 10-1 to 10-27. On February 6, 2015, Welch applied for disability and disability insurance benefits, alleging that he has been disabled since September 17, 2014. Admin. Tr. at 15. The Social Security Administration denied Welch's claim initially on May 22, 2015. Id. at 15. Following the initial denial of Welch's claim, the case went before Administrative Law Judge Gerald W. Langan ("the ALJ"), who concluded that Welch, represented by Noah Naparsteck, Esquire was not disabled and denied him benefits on that basis on June 30, 2017. Id. at 12. Welch requested review of the ALJ's decision before the Social Security Administration's Appeals Council, which denied his request for review on September 18, 2018. Id. at 1.
The facts of the case are well known to the parties and will not be repeated here. Instead, we will recite only those facts that bear on Welch's claim.
The claimant was 41 years old when he allegedly became disabled.
Welch then filed a complaint with this court on November 13, 2018, seeking judicial review of the Commissioner's final decision to deny him benefits. Doc. 1. On February 15, 2019, the Commissioner filed an answer to the complaint and a transcript of the proceedings that occurred before the Social Security Administration. Docs. 9-10. Welch filed a brief in support of his complaint on April 1, 2019, and the Commissioner filed a brief in opposition on April 24, 2019. Docs. 11-12.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, "the court has plenary review of all legal issues decided by the Commissioner." Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). But the court's review of the Commissioner's factual findings is limited to whether substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019). "[T]he threshold for such evidentiary sufficiency is not high." Biestek, 139 S. Ct. at 1154. Substantial evidence "means—and means only—'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence "is less than a preponderance of the evidence but 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). 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] finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003).
The question before this court, therefore, is not whether Welch is disabled, but whether substantial evidence supports the Commissioner's finding that he is not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive disability insurance benefits under Title II of the Social Security Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). In addition, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
The ALJ follows a five-step sequential-evaluation process to determine whether a claimant is disabled. 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).
The ALJ must also assess a claimant's RFC at step four. Hess v. Comm'r of Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is '"that which an individual is still able to do despite the limitations caused by his or her impairment(s).'" Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20 C.F.R. § 404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).
"The claimant bears the burden of proof at steps one through four" of the sequential-evaluation process. Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010). But at step five, "the burden of production shifts to the Commissioner, who must . . . show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity." Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).
The ALJ's disability determination must also meet certain basic substantive requisites. Most significantly, the ALJ must provide "a clear and satisfactory explication of the basis on which" his or her decision rests. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). "The 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. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The "ALJ may not reject pertinent or probative evidence without explanation." Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, '"the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.'" Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).
IV. The ALJ's Decision Denying Welch's Claim.
On June 30, 2017, the ALJ issued a decision denying Welch benefits. Admin. Tr. at 12. At step one of the five-step sequential-evaluation process, the ALJ found that Welch had not engaged in substantial gainful activity since September 17, 2014, the alleged onset date of his disability. Id. at 17. At step two, the ALJ found that Welch had the severe impairments of chronic obstructive pulmonary disease ("COPD"), lumbar degenerative disc disease, Hepatitis C, obesity, schizoaffective disorder, and anxiety disorder. Id. At step three of the sequential-evaluation process, the ALJ found that Welch's impairments did not meet or medically equal the severity of one of the listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 18.
At step four, the ALJ fashioned an RFC, considering Welch's limitations from his impairments:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a). The claimant can lift/carry 2-3 pounds frequently and no more than 10 pounds occasionally. He can sit for 6 hours and stand/walk no more than 2 hours total in an 8-hour workday with an option to alternate between sitting/standing every 30-60 minutes. He must avoid unprotected heights and can never climb ladders/scaffolds. He can occasionally climb ramps/stairs and have no more than occasional exposure to extreme cold temperatures, wetness, and vibration. He must avoid occupations in the food preparation and health care industries. Mentally, he is limited to simple, routine, repetitive tasks with a Specific Vocational Preparation (SVP) of 2 or
below and few workplace changes. He is limited to work with no fast-paced production rate pace, no interaction with the public except incidental contact, and no group, team or tandem work. Finally, he is limited to occasional contact with co-workers and supervisors.Id. at 21.
In making this determination, the ALJ considered Welch's testimony that he experienced pain from his spine to his ribs and in his knees all the time. Id. at 22. He also considered Welch's reports of advanced COPD with shortness of breath on exertion and the required use of a rescue inhaler. Id. With regard to Welch's physical impairments, the ALJ considered Welch's reports of experiencing difficulties with lifting, squatting, bending, standing, and walking. Id. The ALJ also considered Welch's statements that he could only lift twenty pounds, sit for thirty minutes, stand for thirty minutes, and walk one block. Id.
In terms of Welch's mental impairments, the ALJ considered Welch's reports of difficulties in memorizing, concentrating, understanding, following instructions, getting along with others, and completing tasks. Id. The ALJ further considered Welch's testimony that he stopped working because of worsening hallucinations and hearing voices. Id. The ALJ considered Welch's testimony that approximately three days out of the week, he feels so depressed that he stays in bed all day. Id. Additionally, the ALJ considered Welch's testimony that his medications make him feel flat with no emotions and his statements concerning his limited daily activities and heavy reliance on his parents and daughter to help him manage most of the household chores. Id.
The ALJ found that Welch's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." Id.
In determining Welch's RFC, the ALJ recounted Welch's medical treatment history during the relevant time period. The ALJ observed that Welch was seen by Dr. Moin Ud-Din Mallhi seven times for pain management. Id. at 22. During those visits, Welch reported feeling pins and needles, but no weakness, numbness, or loss of bladder or bowel control. Id. at 23. The ALJ observed that Welch underwent a lumbar MRI in 2010, which noted an annular tear and small left paracentral disc herniation at L5-S1 with significant stenosis. Id. An EMG proved negative, however, for any lumbosacral radiculopathy or plexopathy. Id. Additionally, on exam, Welch's reflexes and sensation were intact, his straight leg raise was negative bilaterally both sitting and supine, and significant improvement was noted with nerve blocks and sacroiliac joint steroid injections. Id.
Per the ALJ, Welch continued to see Dr. Mallhi through July 2016 for pain management. Id. During these visits, the ALJ noted, Dr. Mallhi's medical records consistently indicated that Welch reported feeling much better and that he was able to perform his routine activity in much less pain upon treatment. Id. The ALJ also acknowledged that Welch sought pain management with Dr. Kalyan Krishnan at Geisinger Medical Center in July 2016. Id. And, although Welch complained of low back pain with occasional radiation down his bilateral anterior thighs to his knees, he ALJ found that his exams revealed tenderness to palpation with 5/5 strength, negative straight leg raise, intact gait, and intact reflexes. Id. The ALJ further noted that Welch's X-rays were normal and trigger point injections provided Welch with eighty percent relief. Id.
With regard to Welch's Hepatitis C, the ALJ noted that Welch was treated by Dr. Waseem Butt and Dr. Nihar Shah, both hepatology specialists. Id. Upon examination, his liver enzymes were elevated on routine screening for drug detoxification, and he tested positive for Hepatitis C. Id. But his exams were otherwise normal, and he denied any associated symptoms. Id. Additionally, the ALJ noted that Welch was under no ongoing treatment relative to his Hepatitis C. Id.
With regard to Welch's mental impairments, the ALJ noted that Welch was diagnosed with schizoaffective disorder, schizophrenia, and anxiety. Id. at 24. Welch began treating with Dr. Andrew Newton ("Dr. Newton") in November 2013 with complaints of mood swings, depression, impulsivity, heroin abuse, anxiety, and hallucinations. Id. Welch informed Dr. Newton that he ignored social, occupational, and recreational activities due to drug use and that two prior marriages collapsed due to his struggle with drug use. Id. The ALJ, however, noted that Welch was maintaining his sobriety from drugs and alcohol and attending Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") meetings. Id. By January 2015, Welch reported doing well on his medications and remaining sober. Id.
Next, the ALJ analyzed the opinions of medical sources involved in the case. The ALJ considered the psychiatric review technique and mental RFC assessment provided by Dr. Melissa Diorio ("Dr. Diorio"). Id. at 26. Dr. Diorio indicated that Welch suffered from moderate limitations in the paragraph "B" criteria. Id. She further opined that Welch could perform simple, routine, repetitive work in a stable environment with moderate social interaction limitation and moderate limitations in responding to work changes. Id. The ALJ afforded great weight to Dr. Diorio's opinion, noting that although this opinion was rendered under the prior mental health listing, the opinion was probative and supportive of the assessment reached in the decision and consistent with Welch's self-reported activities of daily living and the symptoms and signs reported in the treatment notes. Id.
The ALJ also considered the opinion of Dr. Andrew Cole ("Dr. Cole"), the consultative examiner. During the examination with Dr. Cole, Welch reported that he began treatment with Dr. Newton in 2013, and he received counseling and drug and alcohol treatment several times a week. Id. at 25. Welch reported a significant history of heroin abuse and alcohol abuse, but he had been sober since 2014. Id. Symptomatically, Welch reported depressive symptoms of dysphoric moods, psychomotor retardation, fatigue, loss of energy, concentration problems, loss of usual interests, and social withdrawal. Id.
The ALJ found, however, that during this examination, Dr. Cole reported that Welch's attention and concentration was intact, he completed counting, simple calculations and serial 3's, and his insight and judgment were fair. Id. The ALJ concluded that overall, the longitudinal evidence of record did not support Welch's allegations concerning the intensity, persistence, and limiting effects of his symptoms. Id. The ALJ noted that physically, while Welch had lumbar disc disease and had pain management, his longitudinal examinations reflected intact motor, gait, sensory, and reflex findings. Id. Additionally, his pain management records noted improved symptoms and good pain control with levels of three to four (out of ten) reported. Id. Welch further had good results with treatment for his Hepatitis C, and his mild asthma was controlled with medication. Id. From a mental health standpoint, the ALJ noted that while Welch alleged not being able to get out of bed three days a week, this was unsupported by the mental health treatment records that noted he was showing improvements and doing well with outpatient treatment and maintenance of his sobriety. Id.
Moreover, the ALJ considered the medical source statement prepared by Dr. Cole. Id. at 26. Dr. Cole opined that Welch had no limitations in understanding, remembering, and carrying out simple instructions. Id. He also reported moderate limitations in simple decision-making, understanding, and remembering complex instructions, and marked limitations in carrying out complex instructions and complex decision-making. Id. Dr. Cole also noted marked limitations in interacting with the public/supervisors and responding to usual work situations and changes. Id. Opining that Dr. Cole's assessment was inconsistent with the longitudinal treatment records, the ALJ afforded Dr. Cole's opinion little weight. Id. The ALJ reasoned that Dr. Cole performed only a one-time examination and relied heavily on Welch's subjective reports. Id. Additionally, the ALJ opined that Dr. Cole's marked limitations were not supported by the clinical findings and records from treating sources. Id. The ALJ noted Welch's exams with Dr. Newton, which demonstrated improvements with treatment and normal appearance, normal behavior, normal speech, normal thought processes, and intact cognition. Id. at 27. The ALJ also noted that Welch's Global Assessment Functioning ("GAF") scores demonstrated improvement, ranging from 55 to 71-80, and that Welch reported doing well with noticeably diminished anxiety and an accompanying increase in activity and motivation. Id. Therefore, the ALJ afforded little weight to Dr. Cole's opinion.
The ALJ considered the various GAF scores assigned to Welch throughout the record. Id. The ALJ noted that Welch's GAF scores ranged from 45 to 50, indicating serious symptoms and limitations, up to 55, 61-70, 71-80, indicating no more than slight to mild and moderate symptoms and limitations. Id. The ALJ noted that the GAF scores of 55 and above were afforded great weight because they were consistent with Welch's improved examinations, level of ongoing treatment, and actual level of functioning. Id. The ALJ afforded little weight, however, to the GAF scores of 50 and below, noting that they were not supported by longitudinal objective findings. Id. Based on Welch's range of GAF scores, the ALJ noted that it was clear that Welch's condition significantly improved with treatment and maintenance of his sobriety. Id.
The GAF scores are based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"), but GAF scores are no longer included in the most recent version of the DSM. Admin. Tr. at 27.
Finally, the ALJ considered Welch's daily activities. The ALJ noted that Welch was able to perform a wide array of activities despite his impairments, including tending to his personal care, preparing simple meals, doing his own laundry, driving, shopping in stores, and completing household repairs. Id. The ALJ also noted that Welch was capable of attending his AA and NA meetings five days a week, socializing with his friends regularly, going fishing, and video chatting daily with his daughter. Id. The ALJ concluded that this level of activity was not consistent with someone alleging severe and debilitating mental and physical symptomatology, and as such was inconsistent with a finding of disability. Id.
At step four of the sequential-evaluation process, the ALJ concluded that Welch was unable to perform any past relevant work. Id. at 28. The ALJ then continued to step five and determined that Welch could perform other jobs in the national economy. Id. This finding was based in part on the testimony of the Vocational Expert ("VE"), who concluded that Welch could work in representative occupations as an addresser or as a video surveillance monitor. Id. at 29. The ALJ therefore concluded that Welch was not disabled and denied him benefits on that basis. Id.
V. Discussion.
On appeal, Welch challenges the ALJ's decision on three bases: (1) that the ALJ erred because his hypothetical to the VE did not include all of Welch's limitations; (2) that the ALJ erred by misconstruing the evidence of record and overstating Welch's abilities; and (3) that the ALJ erred in giving the opinions of the consultative examiner limited weight. Doc. 11 at 5. For the reasons discussed below, we recommend that the court affirm the decision.
A. The ALJ's omission of restrictions in his hypothetical question to the VE was harmless error.
Welch argues that the ALJ erred because his hypothetical to the VE did not include all of Welch's limitations. Doc. 11 at 6. More specifically, although in his RFC, the ALJ stated that Welch can "lift/carry 2-3 pounds frequently and no more than 10 pounds occasionally," Admin. Tr. at 21, in the relevant hypothetical to the VE, the ALJ did not explicitly mention any limitation regarding lifting or carrying. Id. at 71. We conclude that the ALJ's failure to include the lifting/carrying restriction in the hypothetical was harmless error.
The United States Court of Appeals for the Third Circuit has held that a vocational expert's testimony is not substantial evidence if the ALJ did not include in the hypothetical to the vocational expert all the claimant's impairments:
Discussing hypothetical questions posed to vocational experts, we have said that "[w]hile the ALJ may proffer a variety of assumptions to the expert, the vocational expert's testimony concerning a claimant's ability to perform alternative employment may only be considered for purposes of determining disability if the question accurately portrays the claimant's individual physical and mental impairments." A hypothetical question posed to a vocational expert "must reflect all of a claimant's impairments." Where there exists in the record medically undisputed evidence of specific impairments
not included in a hypothetical question to a vocational expert, the expert's response is not considered substantial evidence.Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (italics in original) (citations omitted). But an ALJ is not required "to submit to the vocational expert every impairment alleged by a claimant." Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (italics in original). Rather, "the ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations." Id. (italics in original) (citation and footnote omitted).
Here, The ALJ asked the VE a series of hypotheticals. Admin. Tr. at 68-71. The first hypothetical assumed that the hypothetical person could perform light work but with certain additional restrictions. Id. at 68-69. Each later hypothetical included additional restrictions. Id. at 69-71. The first two hypotheticals did not specifically mention any restrictions relating to lifting, carrying, sitting, standing, or walking. Id. at 68-70. The third hypothetical added the requirement that the hypothetical individual be allowed "to alternate between sitting and standing every 30 to 60 minutes." Id. at 70. In the fourth and final hypothetical, and the one pertinent to our discussion, the ALJ asked the VE:
. . . If we were to then reduce the exertional demand from light to sedentary but maintain all of the other limitations and restrictions relied upon in hypothetical #3 including the ability to alternate between sitting and standing every 30 to 60 minutes, would you be able to identify for me representative samples of occupations which exist in the regional, State, or
national economies that our hypothetical individual would be capable of performing?Id. at 71. The VE responded, "[u]nder sedentary and unskilled, we have the addresser position, . . . [and] the video monitor surveillance type positions . . . . Id.
Welch claims that the VE's testimony cannot be considered substantial evidence because the ALJ failed to include in his hypothetical the limitation to lifting and carrying two to three pounds frequently. Although the ALJ erred by not including the lifting restriction in the hypothetical to the VE, the ALJ's failure in this regard was harmless error given that the relevant hypothetical contained a limitation to sedentary work. Under the governing regulation, sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567(a). As § 404.1567(a) makes clear, sedentary work is more restrictive regarding lifting and carrying than the limitations that the ALJ listed in the RFC. In other words, while the RFC says Welch can lift or carry 2-3 pounds frequently, someone who can do sedentary work, is not required to lift or carry any weight frequently. Rather, someone who can do sedentary work is required to lift or carry "articles like docket files, ledgers, and small tools" only occasionally. Id. And while the RFC says that Welch can lift and carry no more than 10 pounds occasionally, someone who can do sedentary work is only required to lift "no more than 10 pounds at a time." Id. Thus, the ALJ's hypothetical question to the ALJ with a limitation to sedentary work was more restrictive that the ALJ's RFC finding. See generally, Hoag v. Saul, No. 1:18-CV-02842, 2019 WL 7040607, at *14 (N.D. Ohio Sept. 27, 2019) ("Due to the ALJ's error, both of the hypotheticals contain more functional limitations than the RFC, making them more restrictive."), report and recommendation adopted, 2019 WL 7037399, at *1 (N.D. Ohio Dec. 20, 2019).
"The terms 'frequently' and 'occasionally' are ascribed particular meanings in the vocational context." Davis v. Astrue, 741 F. Supp. 2d 582, 590 (D. Del. 2010). "Performing an activity 'frequently' means it is done from 1/3 to 2/3 of the time, while performing an activity 'occasionally' means it is done very little up to 1/3 of the time." Id. at 590 (citing, among other sources, SSR 83-10, 1983 WL 31251, at *6 (1983)).
An ALJ's error does not warrant remand when the error has no effect on the outcome of the case. Rutherford, 399 F.3d at 553; McGraw v. Comm'r of Soc. Sec., 609 F. App'x 113, 116 (3d Cir. 2015). Here, given that the ALJ limited the hypothetical to sedentary work, which is a more restrictive limitation than the limitation in the RFC regarding lifting and carrying, the ALJ's failure to include the lifting/carrying restriction in the relevant hypothetical to the VE was harmless error. The error was harmless "because the jobs that could be performed by an individual with greater limitations could also be performed by an individual with fewer limitations." Chiucchi v. Comm'r of Soc. Sec., No. CV 15-3460, 2016 WL 7322788, at *8 (D.N.J. Dec. 15, 2016) (concluding that "[w]hile the hypothetical's no-contact-with-the-general-public limitation may not directly align with the RFC's low-contact-setting-with-the-public limitation, an ALJ may rely on a hypothetical that contains more restrictive limitations than those in the RFC"); see also Hoag, 2019 WL 7040607, at *13 (concluding that "if the ALJ errs on the side of creating a hypothetical more restrictive than his RFC, he can still rely on the VE's opinion, as it meets the substantial evidence standard"); Sanchez v. Berryhill, No. 3:18-CV-30084-KAR, 2019 WL 2437265, at *16 (D. Mass. June 10, 2019) (concluding that "[b]ecause the limitation in the hypothetical was more restrictive than the limitation in the RFC, . . . the inconsistency was harmless" and explaining that if the VE testified that jobs existed that a person with the set of limitations identified in the hypothetical could perform, then a person with a set of limitations less restrictive than those identified in the hypothetical (as set forth in RFC) could perform those same jobs); Schryvers v. Berryhill, No. 2:18-CV-38-WC, 2019 WL 1434663, at *6 (M.D. Ala. Mar. 29, 2019) (concluding "that the omission of several RFC limitations by the ALJ resulted in a hypothetical that was more restrictive than the RFC itself" but concluding that those omissions were harmless error). Thus, the ALJ's failure to include the lifting/carrying restrictions in the hypothetical to the VE had no effect on the outcome of the case. Accordingly, the ALJ's error was harmless.
Welch does not specifically argue that the ALJ's RFC was internally inconsistent given that it limited him to walking or standing no more than two hours a work day but it stated that he could frequently lift/carry two to three pounds. But in connection with his argument that the VE's testimony cannot be considered substantial evidence because the ALJ did not include any lifting restriction in the hypothetical to the VE, Welch suggests as much. Anticipating that the Commissioner would "likely argue sedentary work by definition includes a limitation to lifting and carrying 2 to 3 pounds frequently," doc. 11 at 6, Welch points out that "frequently lifting or carrying requires being on one's feet up to two-thirds of a workday." Id. at 7. But "[s]ince that ALJ limited [him] to walking or standing no more than 2 hours out of an 8 hour workday, [he] cannot frequently lift any amount." Id. Welch asserts that "[t]his important consideration was left out of the hypothetical posed to the VE since there was no mention of frequent lifting of any amount." Id.
The Commissioner does not, in fact, make such an argument. See doc. 12.
An RFC finding that limits a claimant to two hours of standing or walking but allows the claimant to frequently lift or carry objects is internally inconsistent. See, e.g., Slade v. Comm'r of Soc. Sec., No. 17-CV-12684, 2018 WL 3827396, at *6 (E.D. Mich. July 6, 2018), report and recommendation adopted, 2018 WL 3819091, at *1 (E.D. Mich. Aug. 8, 2018); Ford v. Colvin, No. 1:14-CV-01046, 2015 WL 4608136, at *8 (D. Del. July 31, 2015). This is because a person who can frequently lift or carry objects may have to be on their feet more than two hours. Recall that "[p]erforming an activity 'frequently' means it is done from 1/3 to 2/3 of the time." Davis, 741 F. Supp. 2d at 590. "As the Social Security Administration has made clear, 'frequent lifting or carrying requires being on one's feet up to two-thirds of a workday.'" Lewis v. Saul, No. 1:18-CV-01454, 2019 WL 5095631, at *9 (M.D. Pa. Aug. 6, 2019) (quoting SSR 83-10), report and recommendation adopted, No. 1:18-CV-01454, 2019 WL 4126664, at *2 (M.D. Pa. Aug. 30, 2019). Thus, "at the very least, the ability to frequently lift or carry [two to three] pounds would require a claimant to be on his feet no less than one-third of the day—or two hours and forty minutes our of an eight hour day." Id. But the ALJ in his RFC limited Welch to sedentary work and being on his feet (i.e., standing or walking) no more than 2 hours total in an 8-hour workday. Thus, the ALJ's RFC is internally inconsistent.
Courts have remanded cases because of this inconsistency where the ALJ concluded that the claimant was capable of a limited range of light work and where whether the claimant was capable of light work or only sedentary work was outcome determinative under the medical-vocation guidelines. See e.g. Lewis, 2019 WL 5095631, at *9 (collecting cases). Here, by contrast, the ALJ limited Welch to sedentary work in both his RFC and in his hypothetical question to the VE, and Welch does not argue that the medical-vocation guidelines are an issue in this case. Thus, while the internal inconsistency in the ALJ's RFC determination suggests that Welch is incapable of frequently lifting or carrying objects, the error on this basis had no effect on the outcome of the case because, as discussed above, the ALJ limited the hypothetical to the VE to the sedentary exertional level, which by definition includes a limitation of no frequent lifting or carrying. Thus, the ALJ's internal inconsistency was harmless error. But see Stroehecker v. Berryhill, No. 3:17-CV-2022, 2018 WL 3381150, at *7 (M.D. Pa. July 11, 2018) (remanding the case to the Commissioner in a case where the ALJ limited the claimant to sedentary work "except he is able to lift and carry 10 pounds occasionally and 2-3 pounds frequently[,]" but without explicitly discussing whether this inconsistency was harmless error (italics in original)).
B. The ALJ did not err in his consideration of record evidence.
Next, Welch argues that the ALJ misconstrued the evidence of record and overstated his abilities. Specifically, Welch asserts that the ALJ erred in finding that his mental health treatment and activities of daily living were inconsistent with his alleged symptoms. Doc. 11 at 7. Welch contends that while the record demonstrates some improvement over time, the majority of his records indicate that he is depressed, dysthymic, anxious, and impaired in his insight and judgment. Id. at 8. He further contends that the ALJ erred in improperly analyzing his complaints of pain. Id. at 11. Welch argues that a proper review of the evidence would have led to a conclusion that he was incapable of any substantial gainful activity. Id. at 12.
It is well established that this court's review is limited to determining whether the commissioner's decision is supported by substantial evidence. Thomas v. Massanari, 28 F. App'x 146, 147 (3d Cir. 2002). The court neither undertakes a de novo review of the decision, nor does it re-weigh the evidence in the record. Id. Courts reviewing a social security disability benefits hearing are not permitted to re-weigh the evidence or impose their own factual determinations. Chandler v. Commissioner of Social Sec., 667 F.3d 356, 359 (3d Cir. 2011); Rutherford, 399 F.3d at 552.
Here, the ALJ did not err in the weight he assigned to evidence in the record. In determining Welch's RFC, the ALJ considered all of Welch's medically determinable impairments and symptoms, including his COPD, his lumbar degenerative disc disease, his Hepatitis C, his obesity, his schizoaffective disorder, and his anxiety disorder. See Admin. Tr. at 21-28. The ALJ incorporated Welch's medical impairments into his RFC assessment by limiting Welch to sedentary work and stating additional functional limitations on Welch's ability to work. See id. at 21. Thus, since the ALJ's RFC assessment included limitations to account for Welch's impairments, Welch's second claim of error amounts to a request that this court reweigh the evidence and reach a different conclusion from the one that the ALJ reached, which this court cannot do. See, e.g., Rutherford, 399 F.3d at 552 ("In the process of reviewing the record for substantial evidence, we may not 'weigh the evidence or substitute our own conclusions for those of the fact-finder."' (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992))). Because we cannot re-weigh the evidence, we find the ALJ has not erred in his consideration of the evidence.
C. The ALJ did not err in giving the opinions of the consultative examiner limited weight.
Finally, Welch argues that the ALJ erred in giving the medical opinion of Dr. Cole, the consultative examiner, limited weight. Doc. 11 at 12. Welch contends that if the ALJ had accepted the limitations provided by Dr. Cole, the ALJ would have eliminated or drastically reduced his ability to engage in employment. Id.
"The ALJ—not treating or examining physicians or State agency consultants—must make the ultimate disability and RFC determinations." Chandler, 667 F.3d at 361. The ALJ is charged with a duty to evaluate all the medical opinions in the record under the factors set forth in the regulations and to resolve any conflicts. 20 C.F.R. § 404.1527. An ALJ may give an opinion less weight or no weight if it does not present relevant evidence or a sufficient explanation to support it, or if it is inconsistent with the record as a whole. Id. The weight that the ALJ gives to a medical opinion is based on a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and the extent of the treatment relationship, the extent to which the opinion is supported by relevant evidence, the opinion's consistency with the record as a whole, the extent to which the opinion relates to the medical source's specialty, and any other factors tending to support or contradict the opinion. Id. The ALJ may choose which medical evidence to credit and which to reject as long as there is a rational basis for the decision. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). An ALJ cannot disregard a medical opinion "based solely on his own 'amorphous impressions, gleaned from the record and from his evaluation of the claimant's credibility.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (internal alterations omitted) (citing Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)).
In the instant case, we find that the ALJ properly articulated his reasons for assigning little weight to Dr. Cole's opinion as required by 20 C.F.R. § 404.1527. The ALJ afforded Dr. Cole's opinion little weight because Dr. Cole performed only a one-time examination and relied heavily on the claimant's subjective reports. Admin. Tr. at 26. The ALJ also noted that Dr. Cole's findings were not supported by the clinical findings and records from treating sources. Id. Additionally, the ALJ found that Welch's GAF scores demonstrated improvement, ranging from 55 to 71-80; that Welch reported doing well with noticeably diminished anxiety; and that Welch demonstrated an accompanying increase in activity and motivation. Id. at 27. We accordingly find that the ALJ did not err in the weight he assigned to Dr. Cole's opinion.
VI. Recommendation.
For the foregoing reasons, we recommend that the court affirm the Commissioner's decision to deny Welch benefits.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 3rd day of March, 2020.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge