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finding the ALJ did not err in giving little weight to a doctor's report that did not qualify as a medical opinion
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Civil No. 3:18-CV-00398
02-28-2019
BRIAN L. ADLEY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. §1383(c) and 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying Brian L. Adley's claim for supplemental security income under Title XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).
This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of and 28 U.S.C. §636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we find that the ALJ's decision is supported by substantial evidence. Therefore, we respectfully recommend that the final decision of the Commissioner denying Adley's application for benefits be AFFIRMED. I. Procedural Background
Brian L. Adley, is an adult individual born September 15, 1969. Adley was forty-two years of age at the time of his alleged onset of disability—May 1, 2012. (Tr. 20). Adley's age at the onset date makes him a "younger person" under the Commissioner's regulations, whose age generally does not affect his ability to adjust to other work. See 20 C.F.R. §416.963.
On July 14, 2014, Adley protectively filed an application for benefits under Title XVI of the Social Security Act alleging disability as of May 1, 2012. In his application, Adley alleged that the following impairments prevent him from engaging in any work: COPD, hepatitis C, chronic pain in hips and legs, hypertension, bipolar disorder and PTSD (posttraumatic stress disorder). (Tr. 83).
Adley's claim was initially denied on October 9, 2014. Thereafter, on November 20, 2014, Adley filed a timely request for an administrative hearing. His request was granted. Adley appeared and testified before Administrative Law Judge ("ALJ") Richard E. Guida on June 10, 2016. Adley was represented by counsel, Jason J. Schibinger, throughout the proceeding. In addition, impartial vocational expert ("VE") Sheryl Bustin also appeared and testified during the administrative hearing.
On September 8, 2016, the ALJ denied Adley's application for benefits in a written decision. On October 14, 2016, Adley sought further review of his claims by the Appeals Council, but his request was denied on December 21, 2017. This makes the ALJ's September 8, 2016, decision the final decision subject to judicial review by this Court.
Adley filed a timely complaint in this Court on February 15, 2018. (Doc. 1). In his complaint, Adley alleges that the final decision of the Commissioner was erroneous and was not supported by substantial evidence. (Doc.1, at 3).
On April 20, 2018, the Commissioner filed her answer, in which she maintained that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 4).
This matter has been fully briefed by the parties and is ripe for decision. (Docs. 10, 14). II. Statement of Facts
Adley was born on September 15, 1969, and at the time of his administrative hearing he was forty-six years of age. (Tr. 35). He completed a twelfth-grade education. (Tr. 94). Adley currently lives with his girlfriend in Wiconisco, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 40). Adley previously worked as a hotel cleaner and as a laborer. (Tr. 169). He stopped working December 27, 2008, because of parole violations. (Tr. 168).
Adley completed a Function Report on September 24, 2014, wherein he stated he is able to prepare meals three to five times a week, clean his bedroom, and do laundry. (Tr. 194). At the time of completion of the function report, Adley was living with his sister. (Tr. 195). His hobbies include fishing, playing cards, and dice games, which he does once to twice a week. (Tr. 195). He spends time with others, 2-3 hours per day and 3-4 times a week, and spends time with his sister. He is able to go to Walmart, although someone usually accompanies him because he needs transportation to get there. (Tr. 195). He does not possess a driver's license. (Tr. 181). He stated he is unable to handle stress, but is able to go along with changes in routine. (Tr. 196). He stated he has been fired from a job for having anger issues with an authority figure. (Tr. 196). He feels he is always looking over his shoulder. (Tr. 196). Adley stated he needs reminders for appointments. (Tr. 194). Adley stated he was prescribed a brace for his right knee in 2012, and uses it daily. (Tr. 196).
A Function Report was completed by the claimant's sister, Carol A. Adley, on September 8, 2014. (Tr. 178). She stated that the claimant lives with her and that they spend time together. (Tr. 178). She stated he has pain in his body and has a difficult time breathing. (Tr. 178). She stated he has no problem with personal care, but does not sleep much. (Tr. 179). She stated he does not need reminders to take his medicine, but does need reminders to clean his room. He is able to prepare food, clean his room, and do laundry. (Tr. 180). She stated that he is able to shop for food once a month, pay bills, count change, handle a savings account, use checkbook/money orders. (Tr. 181). She stated he enjoys fishing and goes as much as he can because it relaxes him. (Tr. 182). She stated he goes fishing with friends, and goes out on a daily basis. (Tr. 182). She stated that he is able to follow written/spoken instructions. (Tr. 183).
The claimant's medications at the time of application included: alvesco, hydrochlorothiazide, lisinopril, luminal, ranitidine, spironolactone, aldactone, and ventolin inhaler. (Tr. 171). III. Standards of Review
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); id. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552 (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 he or she 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 . . . .").
To receive disability benefits, 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. § 1382c(a)(3)(A); see also 20 C.F.R. § 416.905(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. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).
A "physical or mental impairment" is an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).
"Substantial gainful activity" is work that (1) involves performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R. § 416.910.
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity ("RFC"); and (5) whether the claimant is able to do any other work, considering his or her RFC, age, education, and work experience. Id. The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); id. § 1382c(a)(3)(H)(i); 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064. Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 416.912(f); Mason, 994 F.2d at 1064. III. DISCUSSION
An extensive list of impairments that warrant a finding of disability based solely on medical criteria, without considering vocational criteria, is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
"Residual functional capacity" is the most a claimant can do in a work setting despite the physical and mental limitations of his or her impairment(s) and any related symptoms (e.g., pain). 20 C.F.R. § 416.945(a)(1). In assessing a claimant's RFC, the Commissioner considers all medically determinable impairments, including those that are not severe. Id. § 416.945(a)(2).
A. The ALJ's Decision denying Adley's Application for Benefits
In his September 2016 decision denying Adley's claims, at step one, the ALJ found that Adley had not engaged in substantial gainful activity since July 14, 2014, the application date. (Tr. 22). At step two, the ALJ found that Adley had the following medically determinable severe impairments: asthma/COPD (chronic obstructive pulmonary disease), degenerative joint disease, hepatitis, obesity, bipolar disorder, mood disorder, posttraumatic stress disorder and substance dependence. (Tr. 22). At step three, the ALJ found that Adley did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22).
Between steps three and four of the sequential evaluation process, the ALJ assessed Adley's RFC. After careful consideration and evaluation of the relevant evidence of record, the ALJ found that Adley had the RFC to perform light work with the following limitations:
occasional postural activities and no climbing ladders, ramps, or scaffolds. [He] should avoid concentrated exposure to fumes, odors, dust, gases and pulmonary irritants. [He] retains the mental capacity for simple and routine tasks involving only simple, work-related decisions with few, if any, work place changes, and only occasional interaction with supervisors, coworkers and the public.(Tr. 24).
The ALJ's findings at steps four and five are based on Adley's residual functional capacity, age, education, and work experience. In making this determination, the ALJ relied upon the VE's testimony.
Adley's past relevant work included hotel cleaner and laborer. (Tr. 28). The VE testified that these occupations require unskilled work tasks at a heavy level of exertion. (Tr. 28). The VE testified that given all of the above listed factors, Adley would be unable to perform his past relevant work as hotel cleaner and laborer. (Tr. 28).
The VE testified that considering the same, Adley would be able to perform the requirements of the following occupations that exist in significant numbers in the national economy: cleaner/housekeeper, DOT #323.687-014, 900,000 positions nationally; conveyor line bakery worker DOT # 524.687-022, 230,000 positions nationally; and potato chip sorter, DOT #526.87-010, 25,000 positions nationally.
Because Adley is able to adjust to "other work," the ALJ concluded that Adley did not meet the statutory definition of disability under the Social Security Act.
B. The ALJ properly considered Adley's physical conditions in considering the RFC.
Adley first argues that the ALJ did not include his diagnosed physical and mental health related conditions in setting forth the RFC specifically those related to the issues with his knee.
A claimant's RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairments." Burnett, 220 F.3d at 121 (citations omitted); see also 20 C.F.R. §416.945(a)(1). In making this assessment, the ALJ must consider all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of the sequential evaluation process. 20 C.F.R. §416.945(a)(2). The ALJ then applies this assessment at steps four and five to determine whether a claimant can work. The ALJ will often consult a vocational expert to ascertain whether the claimant's particular limitations preclude the performance of any work by posing a series of hypothetical questions. See Soc. Sec. Ruling 85-15, 1985 WL 56857, at *3. The vocational expert then offers an opinion as to the availability of work for a particular claimant.
The ALJ noted that Adley has a history of right knee pain and multi-ligament instability that was being treated with a brace, Naprosyn, the use of a cane, and physical therapy. (Tr. 306, 308, 621-22). The records show that Adley began therapy, but stopped going because they would not prescribe him a cane. (Tr. 277, 283). Adley uses a hinged knee brace that was prescribed in March 2016. (Tr. 622). Treatment notes show that Adley's gait was normal. (Tr. 234, 247, 252, 257, 414, 647, 650, 652, 654, 656, 658, 660). A Penn State Health ED Summary report dated March 5, 2016, notes that Adley was able to extend and flex legs without difficulty. (Tr. 631). In an emergency room report dated March 24, 2016, it is noted that Adley had full range of motion with mild knee swelling from a fall which occurred on March 5, 2016. Records of April 2016 show Adley had no strength deficits in his lower extremities with the exception of knee pain. (Tr. 619). Follow-up records of May 13, 2016 from Pinnacle Health, George T. Loose, D.O., note full range of musculoskeletal motion. (Tr. 637). Mark Mason, M.D., noted on April 18, 2016, that Adley was "ambulating with essentially a normal gait, and has full range of motion in knee." (Tr. 27, 627). An x-ray report dated April 18, 2016, of the knees, showed mild osteoarthritis of the right knee. (Tr. 611). On May 23, 2016, Mark Mason, M.D., noted that "it's a tough call whether to try ligament reconstruction or total knee arthroplasty. I think he is going to be better off with the knee replacement than trying to do ligament reconstruction and eventually end up with a knee replacement." Adley expressed understanding and wanted to proceed with the knee replacement. Gregory A. Hanks, M.D., noted in a report dated June 12, 2012, that "he has a complex problem. He has got probable chronic multi-ligament instability. He has already got some degenerative changes on x-ray and he is obese. This is a terrible combination between." (Tr. 306). In a report dated July 18, 2012, Adley stated that the brace gave him stability, but he still felt shifting and moving. (Tr. 308). At the administrative hearing, Adley testified that he was going to have knee surgery at Hershey Medical Center, but was unable to provide a surgery date. (Tr. 68).
Additionally, Adley argues that the ALJ erred at step three of the sequential evaluation process because he failed to "properly" consider listing 1.02.
An ALJ is not required "to use particular language or adhere to a particular format" when evaluating a claim at step three of the sequential evaluation process. Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The Third Circuit has noted that "ALJs need not cite specific Listings at step three as long as the ALJ's review of the record permits meaningful review of the step-three conclusions," and has upheld an ALJ's decision that did not mention any listing because the ALJ's decision as a whole illustrated that the ALJ considered the appropriate factors in reaching the conclusion that a claimant did not meet the requirements of a listing. Lopez v. Comm'r of Soc. Sec., 270 Fed. App'x 119, 121 (3d Cir. 2008)(citing Jones, 364 F.3d at 504-05). In this case, we find that the ALJ's step three findings were sufficient because the decision as a whole illustrates that the ALJ considered the appropriate factors in reaching the conclusion that Adley did not meet the requirements of listing 1.02.
Listing 1.02 relates to a major dysfunction of a joint, due to any cause, that is:
Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints. With. . . [i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b. . . .20 C.F.R. Part 404, Subpart P, Appendix 1, §1.02A. Section 1.00 B2b defines the inability to ambulate as:
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.20 C.F.R. Part 404, Subpart P, Appendix 1, §1.00B2b1. The regulation goes on to provide several examples of ineffective ambulation, including: the inability to walk without the use of a walker, two crutches or two canes; the inability to walk a block at a reasonable pace on rough or uneven surfaces; the inability to use standard public transportation; the inability to carry out routine ambulatory activities such as shopping and banking; and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. 20 C.F.R. Part 404, Subpart P, Appendix 1, §1.00B2b2. In order to ambulate effectively "individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living," and "travel without companion assistance to and from a place of employment." Id.
In his decision, the ALJ found that Adley's impairments did not meet Listing 1.02 because:
it is not characterized by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) with chronic pain and stiffness with signs of limitation of motion or other abnormal motion, and findings on appropriate imaging of joint space narrowing, bony destruction, or ankylosis, resulting in inability to ambulate effectively.(Tr. 23).
The Commissioner asserts that the ALJ's determination that Adley did not meet or equal Listing 1.02A is supported by substantial evidence.
We agree with the Commissioner that the ALJ's determination that the combination of Adley's impairments did not prevent him from ambulating effectively as it is defined by 20 C.F.R. Part 404, Subpart P, Appendix 1, §1.00B2b is supported by substantial evidence. In his written decision, the ALJ noted that although Adley walks with a cane, it did not appear that Adley's cane was prescribed and that his medical providers had noted full range of motion and normal gait upon examination. (Tr. 25, 27). The ALJ also noted that Adley is able to go fishing and perform daily chores. (Tr. 27).
With regard to Adley's asthma/COPD and its effect on his RFC, Adley asserts that it is worse with exertion, which causes a need to use an inhaler throughout the day, it causes him to become fatigued and causes chest pain. Adley was educated about quitting smoking. (Tr. 519, 521).
Here, the ALJ took into consideration Adley's asthma when formulating the RFC by limiting Adley to: light exertion jobs that would not require concentrated exposure to fumes, dust, gases, and pulmonary irritants. (Tr. 24). There was no record evidence that Adley's asthma/COPD caused additional limitations. Record evidence shows his lung function is clear. (Tr. 233, 246, 251, 257, 284, 330, 521, 630). The record fails to establish any additional work-related limitations with regard to Adley's asthma. Despite Adley's history of asthma, he continues to smoke every day. (Tr. 245, 413, 521, 647).
Additionally, the ALJ noted that Adley's asthma has only been treated with conservative treatment. (Tr. 26). The ALJ provided adequate restrictions in the RFC to account for Adley's asthma and COPD and no additional evidence warrants additional limitations.
C. The ALJ did not err with regard to Adley's mental health related disorders and limitations.
In terms of his mental health symptoms, the ALJ noted that the record establishes that Adley has a history of depression. (Tr. 26). The record shows that Adley has spent the last 20 years in and out of prison for charges from simple assault, DUI, and theft. Thereafter, he was incarcerated for parole violations. (Tr. 291). Adley testified that he has not received therapy for his mental health complaints and is treated only by his primary physician. (Tr. 65). At a June 24, 2014 appointment with T.W. Ponessa & Associates Counseling Services, Inc., Adley reported increased symptoms and mood swings since he was a child; he has had multiple arrests, depression, problems concentrating, and paying attention. His medication at the time were naproxen, ranitidine, albuterol, hydrochlorothiazide, lisinopril, sudaphen. (Tr. 412-13). On June 24, 2014, Adley's psychiatrist, Vassili V. Arkadiev, prescribed Latuda to address his mood swings and psychotic symptoms. (Tr. 414). Records show that Adley stated that his depression usually only lasts 2-3 days. (Tr. 412). Adley was discharged from outpatient therapy for noncompliance in December 2014 for not attending his scheduled appointments. (Tr. 594).
Adley testified he is forgetful and has difficulty concentrating. (Tr. 54). When seen at Annville Family Practice, P.C., Adley presented with clear flowing thought process and in no acute distress, normal affect and mood, denied racing thoughts, and was attentive and able to concentrate. Progress notes showed Adley had normal mood, affect behavior judgment and thought content, speech articulate and fluent. (Tr. 644, 647, 652, 654, 656, 660).
Adley argues that Dr. Arkadiev's opinion should have been afforded greater weight and his opinions should have included greater restriction with the RFC.
To be a "medical opinion" entitled to "controlling weight," an opinion must come from a "treating source," it must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques," and it must be "not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 416.927(c)(2); Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *2. Under the Social Security regulations in effect at the time of the ALJ's decision in this case, a "treating source" was defined as a "physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you." 20 C.F.R. § 416.902. As to what constitutes an "ongoing treatment relationship," the regulation states:
Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).Id.
If not well-supported by medically acceptable clinical and diagnostic techniques or inconsistent with other substantial evidence in the case record, a treating source medical opinion is nevertheless entitled to deference. Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *4. Ordinarily, it will be afforded "great weight." See id. at *2; Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See generally 20 C.F.R. § 416.1527(c) (detailing factors considered in evaluating weight given to a medical opinion).
The ALJ assigned little weight to the opinion of Dr. Arkadiev that Adley was temporarily disabled from August 1, 2014, to December 1, 2014. (Tr. 27, 419).
The ALJ noted that Dr. Arkadiev did not provide an assessment of specific functional restrictions. (Tr. 27, 412-20). Instead the records show that he discussed with Adley the risks, benefits, and side effects of the medications including but not limited to increased risks of hyperlipidemia, elevated blood sugar, weight gain, and tardive dyskinesia due to being on antipsychotic medications; (2) discussed with the patient the nature and prognosis of the disease, treatment options, and treatment plan; (3) the patient agreed to contact Crisis Line or go to the nearest Emergency Room in the case of exacerbation of depression, suicidal or homicidal ideations or paranoid ideations; (4) starting the patient on Latuda, 60 mg, at night to address the patient's mood swings and psychotic symptoms; (5) encouraged the patient to do blood work; (6) emphasized the importance of exercising and keeping a diet; (7) encouraged the patient to decrease and eventually stop smoking cigarettes; and (8) re-evaluate the patient in about a month. (Tr. 414-15). At the time of this opinion, Adley was not compliant with his medication regimen, including his psychiatric medication, which he needed for stability. (Tr. 412,420).
Additionally, where a physician opines that an individual is unable to work or is declared "disabled" is an issue reserved for the Commissioner's determination and not a medical opinion. Dr. Arkadiev's opinion that Adley was "temporarily disabled" is not a medical opinion, but rather an opinion on whether Adley is disabled, an issue expressly reserved to the Commissioner. See 20 C.F.R. § 416.927(d)(1); Dixon v. Comm'r of Soc. Sec., 183 Fed. App'x 248, 251 (3d Cir. 2006) ("Opinions on disability are not medical opinions and are not given any special significance."); Snow v. Astrue, Civil Action No. 12-5 Erie, 2013 WL 501377, at *8 (W.D. Pa. Jan. 15, 2013) ("The ultimate determination as to whether a claimant is disabled is reserved for the Commissioner."). Thus, the ALJ did err in affording this statement little weight.
In this case, the ALJ afforded great weight to the opinion of the state agency psychological consultant, Dr. Rightmyre. (Tr. 27). Dr. Rightmyer found that Adley had moderate limitations in his ability to pay attention, concentrate, interact socially, and was capable of performing simple, routine tasks. (Tr. 92-93). Treatment notes throughout the records show that Adley's mental symptoms were not debilitating. Progress notes dated May 2012 from Adler Health Services show that Adley's appearance, speech, mood, thought content and affect were all normal. (Tr. 287). Records from June through October 2012 show that Adley was alert and demonstrated appropriate judgment and insight and displayed the ability to recall recent and remote events. (Tr. 234, 246-47, 251-52, 256-57). Also, Adley testified he spends hours every day with friends and family and maintains the ability to regularly play cards, dice games, and shop. (Tr. 95).
The ALJ opined that Dr. Rightmyre's opinion is supported by the evidence of record, the limited examination findings and need for treatment, Adley's non-compliance with treatment, his activities of daily living, which include spending time with his girlfriend, fishing and performing chores. (Tr. 27)
Adley argues that the ALJ erred in concluding that he did not meet the requirements of listings in section 12.00.
The claimant bears the burden of presenting "medical findings equivalent in severity to all the criteria for the one most similar impairment" in order to qualify for benefits through a showing that an impairment, or combination of impairments, is equivalent to a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). An impairment, no matter how severe, is not sufficient if it only meets or equals some of the criteria for a listed impairment. Meeting or equaling a listing cannot be proven solely on the basis of a diagnosis. 20 C.F.R. § 416.925(d). The medical criteria defining listed impairments are set at a higher level than the statutory standard for disability. Zebley, 493 U.S. at 528-32. A claimant must show that all of the criteria for a listing has been met; an impairment that meets only some of the criteria, "no matter how severe, does not qualify." It is always the claimant's burden to prove presumptive disability at step three. 20 C.F.R. §416.926; Zebley 493 U.S. at 431.
20 C.F.R. Part 404, Subpart P, Appendix 1, lists descriptions of the severity of impairment for each major body system that is considered to be severe enough to prevent a claimant from doing any gainful activity regardless of the claimant's age, education, or work experience. 20 C.F.R. § 416.925(a). At step three of the sequential evaluation process, the ALJ considers whether the combination of the claimant's medically determinable impairments meets or equals the severity of one of the impairments in this listing of impairments. 20 C.F.R. § 416.920(a)(4)(iii). If a claimant has an impairment that meets the twelve-month durational requirement, and meets or equals all the criteria of an impairment in the listing of impairments, the claimant is found disabled. 20 C.F.R. § 416.920(a)(4)(iii).
Listing 12.04 (Affective Disorders) requires that a claimant meet the criteria set forth in both paragraphs "A" and 'B" or the criteria set forth in paragraph "C." Listing 12.06 (Anxiety Related Disorders) requires that a claimant meet the criteria set forth in paragraph "A" and all criteria set forth in either paragraph "B" or subsection "C." Listing 12.09 (substance addiction disorders) requires that a claimant meet the criteria set forth in both paragraphs "A" and "B." The paragraph "B" criteria for all three Listings are identical.
The ALJ found that that Adley did not meet Listing 12.04, 12.06, and 12.09 because he failed to meet the paragraph B criteria. (Tr. 23). The ALJ also found he did not meet the paragraph C criteria of Listings 12.04 and 12.06. (Tr., 24).
Paragraph "B" of Listings 12.04, 12.06, and 12.09 evidence of at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration.
Analyzing activities of daily living, Adley has no more than mild restrictions. (Tr. 23). The ALJ noted that Adley lives with his girlfriend, visits his father who lives 26 miles away and sometimes stays there, takes out the trash, rides the bus and is able to attend appointments. The ALJ also noted that Adley's sister alleged that he can do laundry, clean his room, prepare meals, and perform personal care on his own. (Tr. 23)
Regarding social functioning, the ALJ found that Adley had no more than moderate difficulties. (Tr. 23). He noted that Adley reports difficulty with handling anger and getting along with others, especially supervisors. He noted that Adley stated that he starts arguments for no reason. He has a history of incarcerations. He noted that Adley lives with and maintains a romantic relationship with his girlfriend and lived with friends when he moved out of state. The record shows that Adley is in contact with this sister, is pleasant with treating physicians, and does not exhibit aggressive or hostile behavior. Adley testified that he drives 26 miles to visit his father and stays there often. (Tr. 23).
Regarding concentration, persistence or pace, the ALJ found that Adley has moderate difficulties. (Tr. 23). The ALJ noted that Adley alleges difficulty thinking, remembering, and concentrating, but the record shows intact thought process, memory and attention. He is able to follow a routine, attend appointments, and can handle the stress of driving, despite the absence of a driver's license. Adley reported increased problems with concentrating and paying attention in June 2014 after being released from jail a month earlier, but testified he was not taking any psychotropic medications at that time. (Tr. 408-09). The ALJ noted that the record failed to show that Adley reported medication induced side effects or that he reported ongoing hallucinations with treatment compliance. There was no indication in the record that Adley required someone to escort him when leaving his home. The record supports the finding that Adley can perform at least simple and routine tasks. (Tr. 24). Adley testified that he is unable to handle stress but is able to go along with changes in routine. (Tr. 196).
Regarding episodes of decompensation, the ALJ noted that Adley has had no episodes of decompensation of extended duration. (Tr. 24).
The ALJ accounted for Adley's medically established mental limitations in the RFC by limiting him to simple and routine tasks involving only simple, work-related decisions with few, if any, work place changes, and only occasional interactions with supervisors, co-workers, and the public. (Tr. 24).
D. The ALJ did not err at Step Two when evaluating Adley's severe/non-severe impairments.
Finally, Adley argues that the ALJ erred at step two of the sequential evaluation process in finding that Adley's chronic pain disorder, multi-ligament instability, and multiple tears of the knee are non-severe under the regulations.
The ALJ is required to determine at step two of the decision process whether a plaintiff has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). The Third Circuit is clear that this inquiry at step two is a de minimis screening device used to discard 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). An impairment will only be found to be severe under the regulations "if 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 plaintiff bears the burden of showing that an impairment is severe. Bowen, 482 U.S. at 146 n. 5. The evidence that the plaintiff presents must show that such a limitation "significantly limited his or her ability to do basic work activities or impaired his or her capacity to cope with the mental demands of working," and "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); 416.020(c); 404.1521(a); 416.921(a); Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 144-145 (3d Cir. 2007)). The Third Circuit has also established that the threshold for an impairment to qualify as severe is a minimal one and that "[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)).
Though the step two determination of severe impairment is a low bar to overcome, an ALJ's failure to find a medical condition severe at step two does not render a decision deficient if another medical condition was found at step two that subsequently led to all impairments being considered at step four in formulating the RFC. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§404.1523, 416.923, 404.1545(a)(2), and 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)). Essentially, a finding that an impairment is not severe is harmless error as long as such an impairment is properly considered in the formulation of the RFC.
With reference to Adley's back and hip pain, the ALJ recognized that Adley reported very little back pain and was advised to use heat and massage. (Tr. 620). The record evidence failed to show that Adley required ongoing treatment for his alleged back pain. The ALJ recognized at Step Two that Adley has been diagnosed with back pain, but did not recognize the back pain as a severe impairment. (Tr. 22). The record also fails to show any issues with hip pain. Adley testified that he had a hip implant in the past, but there are no records that support pain, abnormalities, or significant changes to the hip. (Tr. 305).
The ALJ acknowledged Adley's medically determined non-severe conditions and considered the non-severe impairments when he formulated the RFC. (Tr. 24).
Furthermore, even if the ALJ should have found that Adley's chronic pain disorder, multi-ligament instability, and multiple tears to the right knee were severe impairments at step two, remand is not applicable here because the ALJ accounted for all of Adley's work related functional limitations in the subsequent steps of his evaluation, and therefore any error on the ALJ's part with regard to the non-severe impairments is harmless error. See Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 145 (3d Cir. 2007) (explaining that "[b]ecause the ALJ found in [the claimant's] favor at step two, even if he had erroneously concluded that some of his other impairments were non-severe, any error was harmless"); Shedden v. Astrue, No. 4:10-CV-2515, 2012 WL 760632, at *9 (M.D. Pa. Mar. 7, 2012) (stating that "[a] failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two"). In this case, the ALJ found at step two that Adley had severe impairments of asthma/COPD, degenerative joint disease, hepatitis, obesity, bipolar disorder, mood disorder, posttraumatic stress disorder, and substance dependence. (Tr. 22). Therefore, even if incorrect, the ALJ's finding that Adley's additional impairments were non-severe is harmless error not applicable for remand. Salles, 229 Fed. App'x at 145.
Given all these factors, the ALJ's finding that Adley could adjust to other work, is supported by substantial evidence. IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED and that Adley's request for the award of benefits be DENIED.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: February 28, 2019
NOTICE
Notice is hereby given that the undersigned has entered the forgoing Report and Recommendation dated February 28, 2019. Any party may obtain a review of this Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: February 28, 2019