Opinion
CIVIL ACTION NO. 3:19-CV-1904
11-19-2020
Cynthia Marie DIETRICH, Plaintiff v. Andrew M. SAUL, Commissioner of Social Security, Defendant
ORDER
AND NOW, this 19th day of November, 2020, upon consideration of the report (Doc. 17) of Magistrate Judge Gerald B. Cohn, recommending that we deny plaintiff Cynthia Marie Dietrich's appeal from the decision of the administrative law judge ("ALJ") denying her application for disability insurance benefits, and the court noting that Dietrich filed objections (Doc. 18) to the report, see FED. R. CIV. P. 72(b), and the Commissioner of Social Security filed a response (Doc. 19) thereto, and following de novo review of the contested portions of the report, see E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C. § 636(b)(1) ), and affording "reasoned consideration" to the uncontested portions, see id. (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) ), the court agreeing with Judge Cohn that the ALJ's decision "is supported by substantial evidence," 42 U.S.C. § 405(g), a standard of review that the Supreme Court of the United States recently reiterated "is not high," Biestek v. Berryhill, 587 U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019), and the court finding the report's analysis to be thorough, well-reasoned, and fully supported by the record, and finding Dietrich's objections to be without merit and squarely and correctly addressed by the report, it is hereby ORDERED that:
1. The report (Doc. 17) of Magistrate Judge Cohn is ADOPTED.
2. The decision of the Commissioner denying Dietrich's application for disability insurance benefits is AFFIRMED.
3. The Clerk of Court shall enter judgment in favor of the Commissioner and against Dietrich as set forth in paragraph 2.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Cynthia Marie Dietrich ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Act, a claimant bears the burden to demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) ; accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920 ; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an administrative law judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment ;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 ; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008) ; Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). Substantial evidence "does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). The Court's review is based on the record, and the Court will "meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met." Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g) ).
II. PROCEDURAL HISTORY
On January 26, 2017, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401 - 433, 1382 - 1383, with a last insured date of December 31, 2014, and an amended alleged disability onset date of February 1, 2009. (Tr. 12, 67). Plaintiff alleged disability due to generalized anxiety disorder, contact dermatitis, hyperlipidemia, hypertension, and panic attacks. (Tr. 68). On October 12, 2018, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 9-27). Plaintiff sought review of the decision, which the Appeals Council denied on September 18, 2019, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-6).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
On November 1, 2019, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On January 17, 2020, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On March 2, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 10 ("Pl. Br.")). On March 30, 2020, Defendant filed a brief in response. (Doc. 13 ("Def. Br.")). On April 9, 2020, Plaintiff filed a reply brief. (Doc. 14 (Reply Br.)).
III. ISSUES
On appeal, Plaintiff argues: (1) the ALJ erred in the allocation of weight to the medical opinions; (2) the ALJ failed to order a consultative examination or obtain interrogatories from physicians regarding her disability; (3) the ALJ erred in finding Plaintiff's obesity as non-severe; (4) the ALJ erred in the consistence analysis. Pl. Br. at 6-12.
IV. BACKGROUND
Plaintiff was born in April 1962 and thus is classified by the regulations as an individual closely approaching advanced age on the date of last insured. (Tr. 67); 20 C.F.R. §§ 404.1563(d), 416.963(d). Plaintiff completed two years of college and past relevant work includes work as a hand packer identified in the Dictionary of Occupational Titles (DOT) as number 920.587-018 with a SVP 2 and performed as medium and work as a re-reeler DOT 640.685-046 with a SVP 3 and customarily performed at the medium level in the DOT, but Plaintiff performed the job at a light to sedentary level. (Tr. 61, 190).
The SVP levels are referenced in the Commissioner's regulations and are routinely accounted for during disability proceedings by determining whether the claimant can engage in skilled, semi-skilled, or unskilled work. 20 C.F.R. § 404.1568 ; see also SSR 00-4p, 2000 WL 1898704 at *3. SVP is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed to average performance in a specific job-worker situation. United States Department of Labor, DOT Vol. 2, 1009 (4th ed. Rev. 1991) available on Westlaw 1991 WL 688702. "Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT." SSR 00-4p, 2000 WL 1898704 at *3. Diaz v. Colvin, No. 4:16-CV-00358, 2017 WL 1078229, at *15 (M.D. Pa. Mar. 22, 2017).
V. ANALYSIS
A. Allocation of Weight to Medical Opinions
Plaintiff argues "the RFC to perform simple, repetitive and routine tasks and to perform a low stress job defined as few workplace changes" is unsupported given the "ALJ rejected all opinion evidence in the record.... The ALJ's rejection of all the medical opinions created an evidentiary deficit." Pl. Br. at 6. However, Plaintiff also states the ALJ "assigned little weight to the opinions of State agency psychological consultant R. Williams, Ph.D. and treating physician S. Gorski, DO." Pl. Br. at 6. Assigning little weight to opinion evidence is not the same as rejecting all opinion evidence. See e.g., Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). Moreover, the ALJ gave "significant" weight to the May 2017 opinion of David Ferner wherein Dr. Ferner opined Plaintiff did not have any severe impairments at the date of last insured and noted primary care records from 2008 to November 2014 indicating Plaintiff's anxiety was "well controlled." (Tr. 16 (ALJ Decision), 70 (Dr. Ferner's opinion)). In support for the allocation of weight to the medical opinions, the ALJ explained:
The undersigned considered the opinion evidence of David Ferner, D.O., the State Agency medical consultant, who indicated on May 5, 2017, that the record as of the date last insured of December 31, 2014, showed that the claimant had no severe impairments (Exhibit 1A) ... [Plaintiff] denied depression at the October 12, 2012 primary care provider visit (Exhibit 4F). There is no documentation indicating that the claimant was referred to a psychologist or psychiatrist, attended therapy or counseling, sought emergency room treatment, inpatient psychiatric treatment or outpatient psychiatric treatment for symptoms of depression during the relevant time period. Accordingly, this opinion is given significant weight because this opinion is consistent with the record during the relevant period of time.
...
... the undersigned considered the opinion evidence of Richard W. Williams, Ph.D., the State Agency psychological consultant, who indicated on May 4, 2017 that the record as of the date last insured of December 31, 2014 shows that there was insufficient evidence to substantiate the presence of anxiety as the medical data did not establish a severity level of mental impairment that would prohibit task completion (Exhibit 1A). However, the record indicates that the claimant received ongoing and regular treatment from the primary care provider for symptoms of anxiety, which were controlled by medication during the relevant period (Exhibit 4F). As this opinion is not supported by the record and is not consistent with the objective findings, it is given little weight.
The undersigned considered the opinion evidence of Stanley J. Gorski, D.O., a treating physician, who indicated on
April 30, 2018 that the claimant has an extreme limitation with understanding, remembering, or applying information, and concentrating, persisting, or maintaining pace, a moderate limitation with adapting or managing oneself and a mild limitation with interacting with others (Exhibit 6F). This opinion is not supported by the treatment history including the fact that the claimant had not attended therapy or counseling since the alleged onset date and had not been referred to a psychologist or psychiatrist to help cope with nervousness (Exhibits 4F; 9F). In addition, the physical examinations with the primary care provider showed that the claimant exhibited a normal mood and intact judgment and insight during the relevant time period (Exhibit 1F). The record further indicates that the anxiety symptoms were managed with medication without side effects (Exhibits 4F; 9F). Moreover, there is no documentation that the claimant attended therapy, inpatient hospitalization, outpatient treatment, emergency treatment, and/or crisis intervention to address the symptoms. As this opinion was rendered several years after the date of last insured, the undersigned finds that this opinion is too remote to apply to the relevant period at issue. Accordingly, this opinion is given little weight.
(Tr. 16, 20-21). The issue presented by Plaintiff is similar to that presented in Durden v. Colvin. In the present case, Plaintiff argues there is error where the ALJ assigns little weight to Dr. Williams’ opinion and the ALJ instead assigns greater limitations than those presented in Dr. Williams’ opinion. See Durden v. Colvin, 191 F. Supp. 3d 429, 455-56 (M.D. Pa. 2016). The ALJ's mental RFC is actually more favorable than the only mental medical opinions (Dr. Ferner's and Dr. Williams) that are relevant to the legal question as to whether Plaintiff is disabled under the Act by the last insured date of December 31, 2014. As observed in Durden v. Colvin:
An ALJ is entitled generally to credit parts of an opinion without crediting the entire opinion. See Thackara v. Colvin, No. 1:14–CV–00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015). It follows that an ALJ can give partial credit to all medical opinions and can formulate an RFC based on different parts from the different medical opinions. See e.g., Thackara v. Colvin, No. 1:14–CV–00158–GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015). Contrary to Plaintiff assertions, this is unlike a case where an ALJ completely rejects all medical opinions, even those which support the ALJ's RFC. See e.g., Thanh Tam Vo v. Colvin, No. 1:14–CV–00541–GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC).
There is a critical difference between cases where an ALJ who finds that a claimant is not disabled when all of the medical opinions indicate that the claimant is disabled and cases where the ALJ assesses the RFC that falls between competing opinions. Dr. Fretz opined that Plaintiff was not disabled. Although the ALJ did not afford Dr. Fretz's opinion significant weight because Dr. Fretz's opinion did not account for Plaintiff's temporary exacerbation of symptoms after the death of her child's father, the ALJ considered and assigned some weight to Dr. Fretz's opinion. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011) (ALJ was entitled to rely on state agency opinion, even though ALJ "added restrictions [the physician] did not deem necessary");
Golubosky v. Comm'r of Soc. Sec., No. CIV.A. 3:13–196, 2014 WL 3943029, at *7 (W.D. Pa. Aug. 12, 2014) ("[G]iving Plaintiff the benefit of the doubt, the ALJ gave Dr. Torio's opinion some weight, but noted that the record supported greater limitations"); Malfer v. Colvin, No. CIV.A. 12–169J, 2013 WL 5375775, at *4 (W.D. Pa. Sept. 24, 2013) ("the ALJ properly relied on, and accorded some weight to, Dr. Bryan's physical RFC assessment of plaintiff. As in Chandler, the ALJ did not simply rubber stamp Dr. Bryan's opinion. Rather, the ALJ incorporated Dr. Bryan's opinion into the RFC Finding to an extent but gave plaintiff the benefit of doubt by limiting him to sedentary (instead of light) work and including additional restrictions to accommodate his functional limitations.").
Durden v. Colvin, 191 F. Supp. 3d 429, 455-56 (M.D. Pa. 2016). Additionally, Plaintiff fails to address how there is reversible error where the ALJ allocates little weight to Dr. Gorski's April 2018 contemporaneous medical opinion issued years following the relevant date to establish disability. (Tr. 419-427 (Dr. Gorski's April 2018 opinion)) See e.g., Carrick v. Saul, No. 4:19-CV-692, 2020 WL 3412678, at *7 (M.D. Pa. June 22, 2020) ; Hamm v. Berryhill, No. 3:17-CV-958, 2018 WL 317935, at *5, 7-8 (M.D. Pa. Jan. 8, 2018) ; cf. Atkins on behalf of Atkins v. Comm'r Soc. Sec., 810 F. App'x 122, 129 (3d Cir. 2020). This argument from Plaintiff's attorney and firm has been rejected in other cases in this jurisdiction. See e.g., Carrick v. Saul, No. 4:19-CV-692, 2020 WL 3412678, at *7 (M.D. Pa. June 22, 2020) ; Hamm v. Berryhill, No. 3:17-CV-958, 2018 WL 317935, at *5, 7-8 (M.D. Pa. Jan. 8, 2018). The undersigned has previously reminded Plaintiff's firm of the obligation to cite "unfavorable but not precedential cases that addressed the exact legal argument previously presented by attorney." Stephens v. Colvin, No. 1:15-CV-02029-YK-GBC, 2017 WL 1170899, at *11 & n. 5 (M.D. Pa. Mar. 13, 2017), report and recommendation adopted, No. 1:15-CV-2029, 2017 WL 1150675 (M.D. Pa. Mar. 28, 2017). Given that Hamm v. Berryhill was issued in January 2018 and this case was filed in November 2019, the attorney's firm had ample notice of a judicial decision on the matter and could cite to the adverse decision in future briefs to address issues previously raised in order give notice to the court, or distinguish the facts, or demonstrate a legal split on the issue. See also Reeves v. Colvin, 2016 WL 4650071, at *n. 5 (M.D. Pa. Aug. 22, 2016), report and recommendation adopted, No. 1:15-CV-619, 2016 WL 4611439 (M.D. Pa. Sept. 6, 2016).
Plaintiff does not direct the court to any retrospective medical opinion regarding Plaintiff's limitations as of the last insured date of December 31, 2014. Recently in Carrick v. Saul, the Court rejected a similar argument explaining that a contemporaneous medical opinion issued a significant length of time after the date of last insured is not relevant to the time period at issue. Carrick v. Saul, No. 4:19-CV-692, 2020 WL 3412678, at *7 (M.D. Pa. June 22, 2020) (citing another case by Plaintiff's attorney's firm, Wolford v. Berryhill, No. 3:17-CV-983, 2017 WL 6405865, at *3 (M.D. Pa. Dec. 15, 2017) ) (concluding that an opinion rendered over one year after the date last insured was not relevant to the time period at issue). An ALJ is entitled to assign greater weight to opinions pertaining to the relevant time period under consideration than to inconsistent opinions pertaining to time periods not under consideration by the ALJ. See Carrick v. Saul, No. 4:19-CV-692, 2020 WL 3412678, at *7 (M.D. Pa. June 22, 2020) ; Hamm v. Berryhill, No. 3:17-CV-958, 2018 WL 317935, at *5, 7-8 (M.D. Pa. Jan. 8, 2018) ; see also, Grisier v. Comm'r of Soc. Sec., 721 F. App'x 473, 477 (6th Cir. 2018) (" ‘Evidence of disability obtained after the expiration of insured status is generally of little probative value.’ Indeed, post-date-last-insured medical evidence generally has little probative value unless it illuminates the claimant's health before the insurance cutoff date."); Whitty v. Saul, 807 F. App'x 740, 740–741 (Mem) (9th Cir. 2020) ("The ALJ also reasonably concluded that subsequently dated medical evidence did not relate back to the relevant period. Although disability may be established by a retrospective diagnosis, none of Whitty's medical evidence contains a retrospective diagnosis."). The Third Circuit recently addressed a similar issue of probative value of contemporaneous evidence after the relevant time period to establish disability under the Act. See Atkins on behalf of Atkins v. Comm'r Soc. Sec., 810 F. App'x 122, 129 (3d Cir. 2020). In Atkins on behalf of Atkins v. Comm'r Soc. Sec., the Court concluded that a claimant's May 2016 death from a previously adjudicated impairment is not relevant to establish the severity of claimant's medical impairment for January 2010 to September 2013, the time period previously considered by the ALJ. See Atkins on behalf of Atkins v. Comm'r Soc. Sec., 810 F. App'x 122, 129 (3d Cir. 2020) (citing Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (the later deterioration of a previously non-disabling condition is not material to the initial disability determination)).
Based on the foregoing, the undersigned finds no reversible error in the ALJ's allocation of weight to the medical opinions of Drs. Williams, Gorski, and Ferner. There is no error in the ALJ allocating little weight to Dr. Gorski's April 2018 contemporaneous opinion as it was not relevant to establishing Plaintiff's disability under the Act by the last insured date of December 31, 2014. The ALJ's allocation of weight and reliance on the opinions of Drs. Williams and Ferner constitutes substantial evidence supporting the RFC.
B. Duty to Develop
Plaintiff argues the ALJ failed to order a consultative examination or obtain interrogatories from physicians regarding her disability in order to "fill this evidentiary void" allegedly from the ALJ's allocation of weight to the existing medical opinions. Pl. Br. at 13. Based on the above analysis, there existed no evidentiary void, rather substantial evidence support the ALJ's RFC.
Richard W. Williams, Ph.D., the State Agency psychological consultant, reviewed Plaintiff's claim for benefits in May 2017 and opined the record as of the date last insured of December 31, 2014, showed insufficient evidence to substantiate the presence of anxiety and the medical data did not establish a severity level of mental impairment that would prohibit task completion. (Tr. 71-71). David Ferner, D.O., a state agency physician, also reviewed Plaintiff's claim for benefits in May 2017, cited the medical record to support Plaintiff's anxiety was well controlled, and opined Plaintiff had no severe impairments as of the date of last insured. (Tr. 68-71). The ALJ allocated greater limitations that those opined by these medical opinions and Plaintiff fails in her burden of presenting medical opinions that contradict those of Drs. Ferner and Williams. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011) ; Golubosky v. Comm'r of Soc. Sec., No. CIV.A. 3:13–196, 2014 WL 3943029, at *7 (W.D. Pa. Aug. 12, 2014).
Plaintiff argues "the ALJ could have sent [Plaintiff] for a consultative examination or sent interrogatories to one of the Agency physicians to obtain a supported opinion assessing [Plaintiff's] functional capacity based on the entirety of the record." Pl. Br. at 8. The burden still "lies with the claimant to develop the record regarding his or her disability because the claimant is in a better position to provide information about his or her own medical condition." Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and 20 C.F.R. §§ 404.1512(a) and 416.912(a) ). "While an ALJ is required to assist the claimant in developing a full record, he or she has no such obligation to ‘make a case’ for every claimant." Kenyon v. Colvin, 2013 WL 6628057 (M.D. Pa. 2013). "The decision to order a consultative examination is within the sound discretion of the ALJ." Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002). Under the regulations, the Commissioner "may" request a claimant to attend a consultative examination. 20 C.F.R. §§ 404.1512, 416.912. The regulations authorize the ALJ to obtain a consultative examination if there remains information needed to make a disability determination, "such as clinical findings, laboratory tests, a diagnosis or a prognosis" which cannot be obtained from the medical record. 20 C.F.R. §§ 404.1519a, 416.919a. Such an examination may be requested when the Commissioner is not presented with the information that is necessary to make a decision or is presented with inconsistent information. 20 C.F.R. §§ 404.1519a(a) - (b), 416.919a(a) - (b). If the inconsistency or lack of information does not allow the Commissioner to make a decision, the Commissioner may take follow-up steps to develop the record, including by re-contacting a medical source. Id. at (b)(2)(i); see also Swink v. Saul, 931 F.3d 765, 770–771 (8th Cir. 2019) ; 20 C.F.R. §§ 404.1519a, 416.919a.
In Herring v. Colvin, the plaintiff "points to the types of things that the ALJ did not do" as grounds for reversible error and the Court rejected this argument explaining:
Plaintiff is conflating the two requirements for a remand based on failure to develop the record. An ALJ must have failed to develop the record, and prejudice must be shown.... Plaintiff has failed to proffer or describe any additional evidence the ALJ should have considered and has failed to make any new argument based on existing evidence.
Herring v. Colvin, 181 F. Supp. 3d 258, 269 (M.D. Pa. 2014). Similar to the facts in Herring v. Colvin, Plaintiff fails to direct the Court to any contradictions or omissions in the record pertaining to the relevant disability date which would require the ALJ to request additional medical opinions and failed to provide additional evidence or new arguments that would change the outcome of the case. With testimonial evidence, medical opinions, and submitted medical history, the ALJ was presented with sufficient information to make a decision and acted properly within the scope of his discretion by not ordering consultative examinations or attempting to obtain interogatories that Plaintiff could also have obtained. See 20 C.F.R. §§ 404.1512, 404.1519a, 416.912, 416.919a(a) - (b) ; Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002) ; Streeter v. Colvin, No. 3:12-CV-267, 2013 WL 5888088, at *4 (M.D. Pa. Oct. 31, 2013) ; see also Swink v. Saul, 931 F.3d 765, 770–771 (8th Cir. 2019) ; Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007) ("The ALJ is not required to order such [consultative] examinations, but may do so if an applicant's medical evidence about a claimed impairment is insufficient."); Herring v. Colvin, 181 F. Supp. 3d 258, 269-72 (M.D. Pa. 2014).
C. ALJ's Determination of Obesity as a Non-Severe Impairment
Plaintiff argues the ALJ's finding Plaintiff's obesity as non-severe is a revisable error. Pl. Br. at 8-9. Plaintiff does not direct to Court to any evidence in the record in support of the contention that any of Plaintiff's functional limitations were due to or exacerbated by obesity to the extent that is not already reflected in the RFC. "[W]e will not make assumptions about the severity or functional effects of obesity combined with other impairments." Social Security Ruling ("SSR") 02-1p. Even assuming arguendo that the ALJ erred, the Court would still find harmless error as the omission does not affect the outcome of the case. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). Ultimately, the outcome of the case depends on the demonstration of the functional limitations of the disease or impairment rather than the mere diagnosis of the disease or name of the impairment. See Alexander v. Shalala, 927 F. Supp. 785, 792 (D.N.J. 1995) aff'd sub nom. Alexander v. Comm'r of Soc. Sec., 85 F.3d 611 (3d Cir. 1996) ; accord, Walker v. Barnhart, 172 Fed.Appx. 423, 426 (3d Cir. 2006). The ALJ's failure to explicitly delineate where obesity may have caused or contributed to specific symptoms and functional limitations does not undermine the entire analysis, when ultimately the ALJ properly characterized the symptoms and functional limitations. See McDermott v. Colvin, 2016 WL 7007558, at *8 (M.D. Pa. Nov. 7, 2016), report and recommendation adopted, No. 1:15-CV-984, 2016 WL 6962630 (M.D. Pa. Nov. 29, 2016). Regarding a similar set of facts and legal argument, the court in Hamm v. Berryhill explained:
Plaintiff has not shown that the alleged error is cause for reversal or remand. With this argument, Plaintiff does not point to specific functional limitations resulting from his obesity.... Plaintiff's conclusory assertions do not satisfy his burden of showing error on the basis alleged.
Hamm v. Berryhill, No. 3:17-CV-958, 2018 WL 317935, at *10 (M.D. Pa. Jan. 8, 2018). Plaintiff's vague assertion that Plaintiff's obesity "could affect her ability to function effectively in the workplace at a level that results in disability," (Pl. Br. at 9), is insufficient to demonstrate the ALJ erred in concluding it was a non-severe impairment.
D. Consistency of the Evidence
Plaintiff argues the ALJ erred in the consistency analysis by relying on Plaintiff's conservative treatment and activities of daily living. Pl. Br. at 6-12. Where a medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a consistency finding on the claimant's subjective statements. SSR 16-3p; 20 C.F.R. §§ 404.1529(c)(2),(3) ; 416.929(c)(2),(3). Although on March 16, 2016, the Social Security Administration eliminated the use of the term "credibility" from the agency's sub-regulatory policy, the agency continues to evaluate a disability claimant's statements of symptoms using a two-step process:
In determining whether an individual is disabled, we consider all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record. We define a symptom as the individual's own description or statement of his or her physical or mental impairment (s). Under our regulations, an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability. However, if an individual alleges impairment-related symptoms, we must evaluate those symptoms using a two-step process set forth in our regulations.
First, we must consider whether there is an underlying medically determinable physical or mental impairment (s) that could reasonably be expected to produce an individual's symptoms, such as pain.
Second, once an underlying physical or mental impairment (s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities ...
See Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims. In this case, the ALJ found:
The claimant reported that she was taking medication as prescribed for nervousness and the April 14, 2014 physical examination showed that the claimant was cooperative with a normal mood (Exhibit 4F). At the following primary care provider visit on November 3, 2014, the claimant reported no changes to her nervousness and that she continued to take the medication as prescribed (Exhibit 4F). The record indicates that the claimant did not report panic attacks at any of the primary care provider visits noted above despite indicating that she suffered from panic attacks once a month and that the symptoms were controlled by medication (Exhibit 4F). In addition, there is no documentation indicating that the claimant was referred to a psychologist or psychiatrist, attended therapy or counseling, sought emergency room treatment, inpatient treatment or outpatient treatment for this impairment.
The above-stated summarization reveals that the anxiety symptoms are managed with medication without side effects and the claimant has not been referred to a psychologist or psychiatrist for further treatment (Exhibits 4F; 9F). Moreover, there is no documentation indicating that the claimant sought or underwent inpatient psychiatric hospitalization, participation in a partial hospitalization program or emergency treatment for uncontrolled mental health symptoms, or that the claimant reported experiencing panic attacks to her primary care provider during the relevant time period. Again, despite the claimant's symptoms, she was able to work after the alleged disability onset date as a secretary and health aide (Hearing Testimony).
(Tr. 18-19). As explained above, there are no medical opinions pertaining to the relevant disability period that demand a more favorable conclusion for Plaintiff with regard to the extent of her mental limitations. The ALJ highlighted the evidence which supported Plaintiff was capable of working and evidence demonstrating Plaintiff's alleged severity of impairments were not consistent with the totality of the record. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (ALJ is not required to "use particular language or adhere to a particular format in conducting his analysis" and instead must on "ensure that there is sufficient development of the record and explanations of findings to permit meaningful review."); Weidman v. Colvin, 164 F. Supp. 3d 650, 695 (M.D. Pa. 2015) (concluding "although all of the relevant evidence was not repeated in a specific credibility section, such is not required"). As noted above, the ALJ cited Drs. Williams and Ferner and incorporated additional limitations in support of the RFC and finding Plaintiff was still capable of working. Plaintiff fails to direct the Court to a medical opinion pertaining to the relevant time period that contradicts the findings from the ALJ decision and the medical opinions relied upon by the ALJ.
Plaintiff argues the ALJ failed to "appreciate the waxing/waning nature" of Plaintiff's mental health impairments, however, the ALJ noted that the usual indications of a severe mental impairment such as in-patient treatment, routine therapy, or a consistent record of panic attacks was lacking in the medical record. (Tr. 18-19). The mere diagnosis of an impairment or presence of a disorder alone will not establish entitlement to benefits; rather, the claimant must show how the alleged impairment or disorder results in disabling limitations. See Walker v. Barnhart, 172 F. App'x 423, 426 (3d Cir. 2006). Plaintiff argues the ALJ did not properly question Plaintiff regarding the lack of mental health treatment pursuant to SSR 16-3p. Pl. Br. 10-11. According to SSR 16-3p:
... if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints. When we consider the individual's treatment history, we may consider (but are not limited to) one or more of the following:
• An individual may have structured his or her activities to minimize symptoms to a tolerable level by avoiding physical activities or mental stressors that aggravate his or her symptoms.
• An individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau.
• An individual may not agree to take prescription medications because the side effects are less tolerable than the symptoms.
• An individual may not be able to afford treatment and may not have access to free or low-cost medical services.
• A medical source may have advised the individual that there is no further effective treatment to prescribe or recommend that would benefit the individual.
• An individual's symptoms may not be severe enough to prompt him or her to seek treatment, or the symptoms may be relieved with over the counter medications.
....
• Due to a mental impairment (for example, individuals with mental impairments that affect judgment, reality testing, or orientation), an individual may not be aware that he or she has a disorder that requires treatment....
The above examples illustrate possible reasons an individual may not have pursued treatment. However, we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case. We will review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects, and whether the evidence of record supports any of the individual's statements at the time he or she made them. We will explain how we considered the individual's reasons in our evaluation of the individual's symptoms.
Soc. Sec. Ruling 16-3p Titles II & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017). During the July 2018 hearing, the ALJ asked Plaintiff why she stopped therapy (Tr. 48-50) and the single instance of therapy in the medical record was with Dr. Pamela Leib, M.D. and lasted from August 2007 to October 2007. (Tr. 268-272). Plaintiff explained she left Dr. Leib's treatment due to the high cost of treatment and because Dr. Leib dismissed her complaint of side-effects that caused her to faint. (Tr. 48). Plaintiff found the medication management provided by her primary care physician addressed her needs. (Tr. 48-50). Moreover, in the decision the ALJ noted "there is no documentation indicating that the claimant was referred to a psychologist or psychiatrist, attended therapy or counseling, sought emergency room treatment, inpatient psychiatric treatment or outpatient psychiatric treatment for this impairment." (Tr. 15). The ALJ also noted "[t]he record further indicates that the anxiety symptoms were managed with medication without side effects." (Tr. 20)(citing to records from primary care provider from November 2006 to March 2018 at Tr. 291-414, 433-448). Beyond the termination of the 2007 treatment with Dr. Lieb, it is not an issue that Plaintiff did "not comply with treatment or seek treatment consistent with the degree of his or her complaints" (SSR 16-3P), rather her complaints to her medical providers were not of a severity to warrant them to advise Plaintiff to seek more intensive treatment. See SSR 16-3P. Social Security Ruling 16-3P allows an ALJ to make an inference that "[a]n individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau" or "[a]n individual's symptoms may not be severe enough to prompt him or her to seek treatment, or the symptoms may be relieved with over the counter medications." SSR 16-3P. The absence in the medical record of her treatment providers recommending Plaintiff to seek intensive treatment permits the ALJ to infer Plaintiff's condition was not severe enough to require more than conservative treatment. See SSR 16-3P; Garrett v. Comm'r of Soc. Sec., 274 F. App'x 159, 164 (3d Cir. 2008) (affirming ALJ decision wherein conservative treatment contradicted the degree of symptom severity alleged by claimant); Vargas v. Berryhill, No. CV 18-1121, 2019 WL 3036533, at *11 (E.D. Pa. Jan. 30, 2019), report and recommendation adopted, No. CV 18-1121, 2019 WL 3002958 (E.D. Pa. July 10, 2019) ; Fligger v. Berryhill, No. CV 17-1187, 2018 WL 6338328, at *1 (W.D. Pa. Sept. 20, 2018) (affirming SSR 16-3P consistency analysis where "[t]he ALJ considered the relatively conservative treatment Plaintiff had received for his condition, and the fact that his treatment included significant gaps."); Hollabaugh v. Colvin, No. CV 16-198-J, 2017 WL 4237022, at *1 (W.D. Pa. Sept. 25, 2017).
Plaintiff does not point to evidence in the record to demonstrate severity to warrant a disability finding. The question is not whether Plaintiff demonstrated some evidence that could support a finding of disability. Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015). The question is whether the ALJ reasonably concluded that the record in totality failed to support Plaintiff's claims. Id. An ALJ is afforded substantial discretion in addressing contradictions and reviewing the totality of the record for consistency. See Cooper v. Comm'r of Soc. Sec., 563 F. App'x 904, 911 n. 9 (3d Cir. 2014) ("it is within the ALJ's discretion to weigh the evidence ..."); Dula v. Barnhart, 129 F. App'x 715, 718 (3d Cir. 2005) ; Miller v. Comm'r of Soc. Sec., 172 F.3d 303, 305–06 (3d Cir. 1999). In this instance, the ALJ did not focus solely on medical record excerpts reflecting instances of Plaintiff's benign symptoms and improvement while neglecting exacerbations and instances of more severe symptoms. See (Tr. 15-21); Cox v. Berryhill, No. CV 16-5434, 2018 WL 7585561, at *3–4 (E.D. Pa. Dec. 18, 2018). Upon review of the record, the court finds the ALJ properly considered the consistency of Plaintiff's allegations with the record, including review of Plaintiff's ADLs, in totality and substantial evidence supports the ALJ's determination that the medical evidence did not fully support Plaintiff's allegations of disabling limitations.
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation . Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.
DATED: August 4, 2020