Opinion
Civil Action 4:20-CV-1294
03-01-2022
ANNA-NICKOLE HENRY, Plaintiff v. KILOLO KIJAKAZI, [1] Acting Commissioner of Social Security Defendant
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
Plaintiff Anna-Nickole Henry, an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income under Title XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §1383(c)(3) (incorporating 42 U.S.C. §405(g) by reference).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On April 25, 2017, Plaintiff protectively filed an application for supplemental security income under Title XVI of the Social Security Act. (Admin. Tr. 13; Doc. 16-2, p. 14). In this application, Plaintiff alleged she became disabled as of April 25, 2017, when she was twenty years old, due to the following thirty one conditions: depressive disorder, ADHD, generalized anxiety disorder, autism, juvenile idiopathic arthritis, dysnomia, postural orthostatic tachycardia syndrome, asthma, insulin resistance and metabolic syndrome, polycystic ovary syndrome, gastroparesis, fibromyalgia, reoccurring sinus infections, atypical migraines, dry eye, chronic constipation, chronic pain, obesity, growth hormone deficiency, teeth grinding, enthesitis, GERD, hirsutism, high blood pressure, abnormal cortisol level, imbalance, difficulty sleeping, tremor, vitamin D deficiency, leukocytosis, and mast cell activation disorder. (Admin. Tr. 168; Doc. 16-6, p. 11).
In her original application, Plaintiff originally alleged that her disability began when she was born (December 8, 1996). (Admin. Tr. 144, Doc. 16-5, p. 2). However, by way of a letter dated May 14, 2018, Plaintiff amended her alleged onset date to April 25, 2017. (Admin. Tr. 102, Doc. 16-4, p. 29).
In Plaintiff's application, she claims she has “dysnomio.” I will assume this is a spelling mistake, and she is alleging she has dysnomia.
Plaintiff alleges that the combination of these conditions affects her ability to lift, squat, bend, stand, reach, walk, kneel, climb stairs, see, remember, complete tasks, concentrate, and use her hands. (Admin. Tr. 196; Doc. 16-6, p. 39). Plaintiff finished the eleventh grade. (Admin. Tr. 169; Doc. 16-6, p. 12). Plaintiff has no past work history. (See Admin. Tr. 154-58; Doc. 16-5, pp. 12-16; Admin. Tr. 23; Doc. 16-2, p. 24).
On December 7, 2017, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 76-80; Doc. 16-4, pp. 3-7). On February 6, 2018, Plaintiff requested an administrative hearing. (Admin. Tr. 83-84; Doc. 16-4, pp. 10-11).
On February 25, 2019, Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Richard Guida (the “ALJ”). (Admin. Tr. 32; Doc. 16-2, p. 33). On April 19, 2019, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 13-25; Doc. 16-2, pp. 14-26). On June 18, 2019, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 141-42; Doc. 16-4, p. 68-69). Plaintiff did not submit any new relevant evidence to the Appeals Council that was not available to the ALJ when he issued his decision. (Admin. Tr. 4, Doc. 16-2, p. 5).
The only new documents that the Appeals Council considered is a brief in support by Plaintiff and a request for review of the hearing decision.
On April 19, 2019, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 10-12; Doc. 16-2, pp. 11-13).
On July 28, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Id.). As relief, Plaintiff requests that the Court reverse the Commissioner's decision and award Plaintiff Supplemental Security Income, or in the alternative, remand the case back to the Commissioner for a new hearing. (Id.). Plaintiff also asks the Court to grant any relief it deems justified, including an attorney's fees award per the Equal Access to Justice Act. (Id.).
On January 13, 2021, the Commissioner filed an Answer. (Doc. 15). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Id.). Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 16).
Plaintiff's Brief (Doc. 17), the Commissioner's Brief (Doc. 19), and Plaintiff's Reply (Doc. 20) have been filed. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security appeals.
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 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, 565 (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). 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 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 this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff 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 Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve 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).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on April 19, 2019.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 416.920(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. § 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 416.912(b)(3); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
IV. DISCUSSION
A. The ALJ's Decision Denying Plaintiff's Application(s)
In his April 2019 decision, the ALJ evaluated Plaintiff's application at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between April 25, 2017 (Plaintiff's alleged onset date) and April 19, 2019 (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 15; Doc. 16-2, p. 16). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairment(s):ankylosing spondylitis, arthritis, fibromyalgia, gastroparesis, neuropathy, postural orthostatic tachycardia syndrome, obesity, attention-deficit hyperactivity disorder, anxiety disorder, autism, and depressive disorder. (Admin. Tr. 15; Doc. 16-2, p. 16). At step three, the ALJ found that, during the relevant period, Plaintiff 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. (Id.).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in light work as defined in 20 C.F.R. § 416.967(b) subject to the following additional limitations:
[C]laimant can never climb ladders/ropes/scaffolds, frequently balance/stoop, occasionally use ramps/stairs, occasionally kneel/crouch/crawl; avoid concentrated exposure to extreme heat/wetness/humidity/vibration/hazards; work that is limited to simple and routine tasks, involving simple, work-related decisions and with few, if any, workplace changes; no production pace work; only occasional interaction with supervisors, coworkers, and the public.(Admin. Tr. 19; Doc. 16-2, p. 20).
At step four, the ALJ found that, during the relevant period, Plaintiff had no past relevant work. (Admin. Tr. 23; Doc. 16-2, p. 24). At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Id.). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three representative occupations: machine feeder (DOT Code 583.686-014), line attendant (DOT Code 920.687-042), and product sorter (DOT Code 529.687-186). (Admin. Tr. 23-24; Doc. 16-2, pp. 24-25).
Plaintiff argues that the ALJ erred in the following respects:
1. The ALJ failed to properly weigh the opinion of treating psychiatrist Gregory Sullivan, MD.
2. The ALJ's multiple errors with symptom evaluation compel reversal.(Doc. 17, p. 1). I will discuss each in turn.
B. Whether the ALJ erred In Considering Gregory Sullivan's Opinion
Plaintiff argues that the ALJ erred in not giving Dr. Sullivan's opinion controlling weight. First, I will discuss Dr. Sullivan's opinion and how the ALJ considered it. Second, I will discuss the legal standards for assessing medical opinion evidence. Third, I will discuss the parties' arguments, and fourth, I will explain why Plaintiff's argument fails.
1. Dr. Sullivan's Opinion
Dr. Sullivan, a treating provider, is one of two mental health providers that provided a mental health opinion on Plaintiff's condition. Dr. Sullivan thought Plaintiff had moderate to severe mental abilities, and he thought Plaintiff had eight moderate, and seven severe impairments. (Admin. Tr. 1968-69, Doc. 16-28, p. 34-35). Further, Dr. Sullivan opined that Plaintiff would be absent four or more days of work per month and would have to leave work early four or more days per month because of her impairments. (Id.).
The other mental health opinion is from Dr. Thomas Fink, Ph.D., a non-examining state examiner. (Admin. Tr. 70-71, Doc. 16-3, pp. 13-14). Dr. Fink opined that Plaintiff has moderate limitations in making realistic goals, responding appropriately to changes in the work setting, and interacting appropriately with the general public. (Id.). Dr. Fink thought Plaintiff, among others, could understand and follow simple instructions, meet schedule demands, persist in simple tasks, maintain a regular schedule, and accept instructions. (Id.). The ALJ found this opinion persuasive. (Admin. Tr. 22-23, Doc. 16-2, pp. 23-24).
Dr. Sullivan believes Plaintiff has moderate limitations in her ability to: remember work-like procedures, understand and remember very short and simple instructions, carry out very short and simple instructions, sustain an ordinary routine without special supervision, make simple work-related decisions, ask simple questions or request assistance, respond appropriately to changes in a routine work setting, and be aware of normal hazards and take appropriate precautions.
Dr. Sullivan believes Plaintiff has marked limitations in her ability to: maintain attention for two hour segment, maintain regular attendance and be punctual within customary and usually strict tolerances, work in coordination with or proximity to others without being unduly distracted, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without unduly distracting them or exhibiting extremes, and deal with normal work stress.
The ALJ found Dr. Sullivan's opinion not persuasive. (Admin. Tr. 23, Doc. 16-2, p. 24). The ALJ thought this opinion was:
not supported by or consistent with the medical evidence in the case. Specifically, it is inconsistent to find mark limitations when observations of the claimant throughout her treatment history, typically noted to be alert and oriented with intact recent and remote memory, normal attention and concentration, speech, normal thought process and content, and fair insight and judgment.(Id.). In discounting Dr. Sullivan's opinion, he ALJ also cites by reference to Plaintiff's activities of daily living, which include, among others, taking care of animals, preparing meals, and assisting with chores. (Id.).
2. Legal Standards For Analyzing Medical Opinion Evidence
An ALJ's consideration of competing medical opinions is guided by the following factors: the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability); the extent to which the medical source's opinion is consistent with the record as a whole (consistency); length of the treatment relationship between the claimant and the medical source; the frequency of examination; the purpose of the treatment relationship; the extent of the treatment relationship; the examining relationship; the specialization of the medical source and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(c).
The most important of these factors are the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 416.920c(b)(2). The ALJ will explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. The ALJ may, but is not required to, explain his or her consideration of the other factors unless there are two equally persuasive medical opinions about the same issue that are not exactly the same. 20 C.F.R. § 416.920c(b)(3). Unlike prior regulations, under the current regulatory scheme, when considering medical opinions, an ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 416.920c(a).
3. The Parties' Arguments
Plaintiff argues that the ALJ erred when he analyzed Dr. Sullivan's opinion. (Doc. 17, pp. 7-10). In attacking the supportability prong, Plaintiff argues that the ALJ incorrectly summarized Plaintiff's symptoms, and the record shows that Plaintiff had mood swings, depressed mood, anxiety, memory loss, low energy and sleep disturbances. (Id.). Further, Plaintiff argues that the ALJ did not explain how Plaintiff's normal mental findings are inconsistent with Dr. Sullivan's finding of marked limitations. (Id.).
The Commissioner refutes both points. First, the Commissioner cites repeatedly to Plaintiff's medical record that shows more tempered mental health symptoms, in contrast to Dr. Sullivan's marked limitations finding. (Doc. 19, pp. 12-17). Second, the Commissioner argues that an ALJ can discount a medical provider's opinion when that provider's own treatment records includes information that does not support the opinion. (Id. at 19). I agree with the Commissioner on both counts.
4. Analysis
It was appropriate for the ALJ to find that Dr. Sullivan's opinion was not supported or consistent with the record. Plaintiff essentially is claiming that the ALJ's summary is incorrect, and treatment notes show serious impairments. First, to any extent Plaintiff is asking the Court to reweigh the evidence de novo, it will not. A federal court is limited to deciding whether substantial evidence support's the ALJ's findings. Torres v. Barnhart, 139 Fed.Appx. 411, 413 (3d Cir. 2005).
Keeping that standard in mind, substantial evidence supports the ALJ's decision to find that Dr. Sullivan's opinion was not persuasive. Dr. Sullivan's own treatment notes do not comport with his medical opinion. Examples include:
. In a May 2017 visit with Dr. Sullivan, Plaintiff had a dysthymic mood, but looked forward to the summer because she wanted to see two different concerts. (Admin. Tr. 962-63, Doc. 16-14, pp. 7-8). Dr. Sullivan reported she had a coherent thought process, normal thought content, intact memory, but fair insight and judgment, and poor energy. (Id.). . In a July 2017 visit with Dr. Sullivan, he noted that Plaintiff had a restless motor behavior, tired mood, and constricted affect, and fair judgment, but intact memory, coherent thought process, and no abnormal movements. (Admin Tr. 961-62, Doc. 16-14, pp. 6-7).
. In a September 2017 visit with Dr. Sullivan, he observed that Plaintiff had a largely normal mental health exam, including intact hygiene, mild restless motor behavior, mild labile affect, a euthymic, somewhat silly mood, largely coherent thought process, and selective memory. (Admin. Tr. 959-60, Doc. 16-14, pp. 4-5). Dr. Sullivan wrote that Plaintiff reported that her “mood [is] pretty good, ” but “energy not so much” (Id.). Dr. Sullivan notes that she “occupies herself playing video games . . . still reading throne of glass series [;] she chuckles about the antics of her dog.” (Id.). Dr. Sullivan noted that she is “doing fairly well” with respect to her generalized anxiety disorder, and “she is holding her own despite ongoing severe medical problems and the attendant insurance hassles.” (Id.).
. In a November 2017 visit with Dr. Sullivan, he reported that Plaintiffs affect was labile, and her mood congruent and redirectable, but had no abnormal movements, good hygiene, normal thought content, coherent thought process, intact memory and normal energy. (Admin. Tr. 1458-59, Doc. 16-22, pp. 45-46). Plaintiff reported that she was tired, but occasionally showed some jovial behavior. (Id.). Plaintiff told Dr. Sullivan that she plays videogames and looked forward to new releases of new books and video games. (Id.). Dr. Sullivan noted that she had good
compliance with her medication, and noted that he would continue this medication regime. (Id.).
. In January 2018, Plaintiff reported to Dr. Sullivan that her depression has worsened, in part because her father drinks excessively, is distant with Plaintiff, and was recently fired from his job. (Admin. Tr. 1456-57, Doc. 16-22, p. 43-44). Dr. Sullivan changed her medications in response to this. (Id.). Mental status exam showed depressed and tired mood, fair judgment, low energy, but normal thought process and content, and an intact memory. (Id.).
. In March 2018, Plaintiff improved at her next visit with Dr. Sullivan. (Admin. Tr. 1452-53, Doc. 16-22, pp. 39-40). He notes that Plaintiff was more interactive, but slumps at times with boredom/fatigue. (Id.). Besides noting that she has poor energy, fair hygiene, and constricted affect, Plaintiffs mental status exam is normal. (Id.). Plaintiff reported that her depression and anxiety have improved. (Id.).
. In May 2018 visit with Dr. Sullivan, he noted that Plaintiffs anxiety worsened and depression “somewhat worsened.” (Admin. Tr. 1449-50, Doc. 16-22, pp. 36-37). Her mental status exam noted that she was “more listless today” in appearance, had constricted affect, dysphoric mood, somatic focus thought content, fair memory, decreased energy and
appetite, but good hygiene and no abnormal movements. (Id.). In response, Dr. Sullivan changed her medications. (Id.).
. In July, September, and November 2018 visits with Dr. Sullivan, Plaintiffs mental status exams were all generally unremarkable. (Admin. Tr. 1440-47, Doc. 16-22, pp. 27-34). Her depression and anxiety were either stable or improved during these visits. (Id.).
As Dr. Sullivan's own treatment records show, Plaintiff had generally unremarkable mental status exams, and occasionally her depression and mood worsened. When Plaintiffs depression and anxiety worsened in January and May 2018, Dr. Sullivan changed her medications, and in subsequent visits, she improved. Additionally, other providers had similar findings to Dr. Sullivan. For example, at a May 2017 annual checkup, a nurse practitioner noted that Plaintiff had normal mood, affect, speech, behavior, judgment, thought content, cognition, and memory. (Admin. Tr. 910, Doc. 16-13, pp. 35-36). As such, the ALJ's consideration of Dr. Sullivan's opinion is supported by substantial evidence.
Second, Plaintiff argues that the ALJ had to explain how unremarkable mental findings is inconsistent with Dr. Sullivan's opinion. That is an incorrect assumption. The ALJ did not have to specifically explain in great detail how unremarkable mental health findings are inconsistent with Dr. Sullivan's opinion. Laicha v. Kijakazi, No. 20-cv-421, 2021 WL 3929739, at * 33-34 (M.D. Pa. Sept. 2, 2021) (upholding ALJ's rejection of a provider's medical opinion when the ALJ explained “that the opinion was inconsistent with his treatment notes . . . as well as [the plaintiff's] self-reported activities of daily living.”); Miller v. Comm'r of Soc. Sec., No. 20-cv-1088, 2022 WL 178590, at * 19-20 (M.D. Pa. Jan. 18, 2022) (upholding ALJ's rejection of medical opinion evidence when mental state exams showed largely normal findings). And because the ALJ considered the record as a whole (with extensive and specific citations), even if there “is contrary evidence that would justify the opposition conclusion, as long as the substantial evidence standard is satisfied, ” this Court will uphold the Commissioner's decision. Johnson v. Comm'r of Soc. Sec., 497 Fed.Appx. 199, 201 (3d Cir. 2012) (internal citations omitted). So, I find that this argument is unconvincing, and it does not change my conclusion that the ALJ's treatment of Dr. Sullivan's opinion is supported by substantial evidence.
In her Reply Brief, Plaintiff argues that the ALJ should have contacted Dr. Sullivan for clarification of his opinion. (Doc. 20, p. 1). The regulations do not require the ALJ to contact providers to obtain more evidence. See 20 C.F.R. § 416.920b (explaining that an ALJ may take actions to obtain more evidence). Further, as applied here, the ALJ had thousands of pages of medical records, multiple medical opinions, and Plaintiff's statements to consider. Seeing that no party argues that the ALJ was missing evidence, the record was sufficient to make a reasoned decision.
C. Whether the ALJ Erred In Finding That Plaintiff's Statements About the Intensity, Persistence, and Limiting Effects Were Not Consistent With the Record
Plaintiff argues that the ALJ erred in four ways when he held that Plaintiff's statements about the intensity, persistence, and limiting effects of her impairments were not consistent with the record. I'll discuss each of Plaintiff's four credibility arguments, and why each is unpersuasive.
1. Using Medical Imaging to Assess Credibility
Plaintiff argues that the ALJ improperly cited to medical imaging to discount the severity of Plaintiff's fibromyalgia. (Doc. 11, p. 11). She argues fibromyalgia cannot be assessed by way of medical imaging, so the ALJ erred in his analysis. (Id.). The Commissioner argues that Plaintiff misread the ALJ's opinion and did not cite to medical imaging to discount Plaintiff's testimony regarding the intensity of her fibromyalgia. (Doc. 19, pp. 21-22). While I agree that fibromyalgia's symptoms may not always appear in medical imaging, the ALJ relies on more than just medical imaging in assessing Plaintiff's credibility regarding her fibromyalgia. As such, I find no reversible error here.
In discussing Plaintiff's credibility about her physical impairments, the ALJ first explains that Plaintiff's musculoskeletal impairments are not debilitating because Plaintiff's medical imaging is largely normal. (Admin. Tr. 20-21, Doc. 16-2, pp. 21-22). Next, the ALJ summarizes Plaintiff's “myriad of other chronic impairments that further limit her residual functional capacity.” (Id.). This includes an explicit reference to Plaintiff's fibromyalgia. (Id.). After summarizing all her physical ailments, the ALJ held that “the record does not support a finding that the totality of these physical impairments has a debilitating impact on her ability to engage in work-related functioning.” (Id.). To support this conclusion, the ALJ cites to the objective medical evidence in the record, including evidence of normal gait, ambulating without issue, close to normal range of motion and strength, and largely normal medical imaging. (Id.).
Plaintiff seems to argue that the ALJ relied exclusively on medical imaging to discredit Plaintiff's symptoms from fibromyalgia. The ALJ uses medical imaging, other objective medical evidence, and her activities of daily living to assess Plaintiff's credibility. And while Courts acknowledge that symptoms of fibromyalgia may not reflect on medica imaging, Singleton v. Astrue, 542 F.Supp.2d 367, 377 (D. Del. 2008), even in fibromyalgia cases, “the ALJ must compare the objective evidence and the subjective complaints and is permitted to reject's plaintiff's subjective testimony so long as he provides a sufficient explanation for doing so.” Nocks v. Astrue, 626 F.Supp.2d 431, 446 (D. Del. 2009). And here, the ALJ did just that since he explained his reasoning and supported it by citing to medical evidence and activities of daily living, among others. As such, there is no reversible issue on this point.
This includes her ability to ambulate, her normal gait, her full or mildly reduced range of motion, and full or mildly reduced strength.
2. Failure to Explain Normal Gait and Range of Motion Affects Credibility
Plaintiff argues that the ALJ erred when he failed to explain how Plaintiff's ability to walk a normal gait and largely normal range of motion explains how her claims of severe pain are not credible. (Doc. 17, p. 11). The Commissioner does not respond to this argument.
I agree with Plaintiff that the ALJ did not explicitly address the link between pain and normal gait/a full range of motion. An individual can certainly be in pain but yet have a normal gait and a full range of motion. However, the ALJ's credibility assessment is still based on substantial evidence. First, in Plaintiff's function report, she alleges that pain prevents her from standing or walking long distances. However, evidence of her ability to walk with a normal gait and have a full range of motion is an appropriate factor to assess her credibility. Taylor v. Colvin, No. 14-cv-1033, 2016 U.S. Dist. LEXIS 22074, at * 40-41 (E.D. Cal. Feb. 22, 2016).
Further, in assessing the medical evidence about her physical impairments, the ALJ not just relied on objective findings, but also medical opinion evidence. See Frank B. v. Saul, No. 18-cv-2099, 2019 WL 6307651, at *48-49 (N.D. Ill. Nov. 25, 2019) (rejecting a plaintiff's claim that an ALJ focused too heavily on objective findings to discredit fibromyalgia-related pain because the ALJ considered medical imaging, medical opinions, and activities of daily living in reaching their conclusion). In formulating his decision, the ALJ also considered, and found persuasive, the opinion of Dr. David Draper. Dr. Draper opines that Plaintiff can lift 20 pounds occasionally, 10 pounds frequently, and sit, stand, and/or walk for six hours out of an eight-hour workday. (Admin. Tr. 21-22, Doc. 16-2, pp. 22-23; Admin. Tr. 67-70, Doc. 16-3, pp. 10-13). The ALJ found this opinion persuasive because it was consistent and supported by the record. (Id.). Notably, Plaintiff does not challenge the medical opinions that touch on her physical RFC. Finally, the ALJ cites extensively to specific pages in the medical record to support his findings. While he does not specifically address objective medical evidence other than medical imaging and normal gait/range of motion, a review of the cited records show that her physical condition was stable and controlled by medication, albeit with occasional flare ups. (See, e.g., Admin. Tr. 20, Doc. 16-2, p. 21; Admin Tr. 1250-21, Doc. 16-20, pp. 22-23; Admin. Tr. 1263-64, Doc. 16-20, pp. 35-36). As such, there is no reversible issue on this point.
3. Using Plaintiff's Conservative Mental Health Treatment to Assess Credibility
Plaintiff argues that ALJ erred in his credibility assessment when he used the fact that Plaintiff had never been admitted into an inpatient service for her mental health impairments. (Doc. 17, p. 11). The Commissioner refutes this and argues that evidence of conservative treatment is an appropriate factor in a credibility assessment. (Doc. 19, pp. 22-23). I agree with the Commissioner.
Conservative treatment can be used as a factor to support a credibility determination. 20 C.F.R. § 416.929 (c)(3)(v) (in evaluating credibility, an ALJ can consider “[t]reatment, other than medication, you receive or have received for relief of your pain or other symptoms”); Garrett v. Comm'r of Soc. Sec., 274 Fed.Appx. 159, 164 (3d Cir. 2008) (upholding an ALJ's credibility determination when the ALJ considered claimant's conservative treatment). If there is an explanation for why a claimant failed to seek more intensive treatment, then the ALJ must consider the explanation before merely weighing conservative treatment against a claimant's credibility. Vargas v. Berryhill, No. 18-cv-1121, 2019 WL 3036533, at *29 (E.D. Pa. Jan. 30, 2019). But, if there is nothing in the record to suggest more intensive treatment was necessary, the ALJ can “infer that Plaintiff's condition was not severe enough to require more than conservative treatment.” Dietrich v. Saul, 501 F.Supp.3d 283, 297 (M.D. Pa. 2020) (report and recommendation adopted by 501 F.Supp.3d 283 (M.D. Pa. Nov. 19, 2020)).
As applied here, it was acceptable for the ALJ to rely, in part, on Plaintiff's conservative treatment in making his credibility finding. First, an ALJ is permitted to consider the type of treatment a plaintiff receives in making a credibility determination. 20 C.F.R. 416.929 (c)(3)(v). The ALJ considered the type of Plaintiff's treatment as well as other evidence in making his credibility decision. He reasonably concluded that the evidence does not fully support her statements about the severity of her impairments. Second, Plaintiff does not point to, and the Court does not find anywhere in the record, where a provider recommended more serious treatment for Plaintiff. So, it was acceptable for the ALJ to infer that Plaintiff's condition was not serious enough to warrant more than conservative treatment. Dietrich, 501 F.Supp.3d at 297. Third, Plaintiff argues that inpatient hospitalization is not required to establish that a plaintiff's limitations are credible. While that is correct, the ALJ relied on more than just the type of treatment Plaintiff received to make his credibility decision. If the lack of an inpatient hospitalization was the only factor the ALJ gave to discredit a plaintiff's testimony, that would be troublesome. But that is not the case here. The ALJ cites, in conjunction to his observation of conservative treatment, to the objective medical records, and to Plaintiff's activities of daily living. As such, I find no reversible error in this argument.
4. Using Activities of Daily Living to Assess Credibility
Finally, I address Plaintiff's activities of daily living (“ADL”) argument. Plaintiff argues that the ALJ erred in using Plaintiff's ADLs to support his credibility determination. She argues that ADLs can only be used to support a credibility determination if “(1) the [ADLs] indicate that ‘a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting' or (2) the [ADLs] contradict other allegations by the claimant, rending them internally inconsistent.” (Doc. 17, p. 11-13 (citing Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007)). The Commissioner argues that evidence of ADLs is an acceptable factor in credibility assessments. (Doc. 19, pp. 23-24). I agree with the Commissioner.
It is well established that a claimant's ADLs can be used as one factor in making a credibility determination. 20 C.F.R. § 416.929(c)(3); Turby v. Barnhart, 54 Fed.Appx. 118, 122 (3d Cir. 2002) (“Although certainly disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity, it is nonetheless appropriate for the ALJ to consider the number and type of activities in which the claimant engages.”) (internal citations omitted); Miller v. Comm'r of Soc. Sec., No. 20-3642, __ Fed.Appx. __, 2021 WL 3137439 (3d Cir. July 9, 2021) (no error when an ALJ considered ADLs, in part, to make a credibility determination).
As applied here, the ALJ noted that Plaintiff's self-described ADLs include taking care of her pet dog, preparing her own meals, assisting with household chores, and reading. (Admin. Tr. 21, Doc. 16-2, p. 22). She also does not need any assistance or reminders to take care of her personal needs, grooming, or in taking medication. (Id.). The ALJ used this evidence as one factor in his credibility decision, in addition to citing extensively to the objective medical evidence and to medical opinion evidence. Because it was appropriate to rely, in part, in ADLs to make a credibility determination, I see no basis for remand.
Plaintiff relies on Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) to support his argument, but even if it was binding precedent to this Court, it is distinguishable from this case. Orn involved a ALJ who supported an adverse credibility finding, in part, because the claimant read, watched TV, and colored in a coloring book. Id. The Ninth Circuit held that these ADLs are clearly not transferable skills. Id. However, the Plaintiff here does significantly more than just read, watch TV, and color. As described above, Plaintiff takes care of pets, does chores, makes meals, reads, plays video games, and goes to concerts. It was reasonable for the ALJ to decide that these ADLs undermine Plaintiff's testimony, as these ADLs are significantly more involved than the ones discussed in Orn.
[The next page contains the Recommendation]
V. RECOMMENDATION
IT IS RECOMMENDED that:
(1) The final decision of the Commissioner should be AFFIRMED.
(2) Final judgment should be issued in favor of Kilolo Kijakazi.
(3) The Clerk of Court should close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the 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.