Opinion
Civil Action 4:22-CV-626
07-28-2023
JASON F.,[1]Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant
BRANN, C.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Plaintiff Jason F., an adult who lives in the Middle District of Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to a magistrate judge 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, the undersigned finds the Commissioner's final decision is supported by substantial evidence. Accordingly, it will be recommended that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On April 1, 2019, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 79; Doc. 12-2, p. 80). In this application, Plaintiff alleged he became disabled on November 15, 2018, when he was thirty-one years old, due to the following conditions: bipolar disorder, foot joint fusion, club foot, possible COPD, migraines, and depression. (Admin. Tr. 301; Doc. 12-6, p. 3). Plaintiff alleges that the combination of these conditions affects his ability to sit, stand, walk, complete tasks, concentrate, follow instructions, and interact with others. (Admin. Tr. 100-144; Doc. 12-2, pp. 101-145). Plaintiff alleges that these conditions also affect his memory. Id. Plaintiff completed high school. (Admin. Tr. 302; Doc. 12-6, p. 4). Before the onset of his impairments, Plaintiff worked as a material handler, forklift operator/industrial truck operator, crane operator, and auto detailer. (Admin. Tr. 92; Doc. 12-2, p. 93).
On September 13, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 79; Doc. 12-2, p. 80). On August 20, 2020, Plaintiff's application was denied on reconsideration. Id. On September 29, 2020, Plaintiff requested an administrative hearing. Id.
On January 11, 2021, Plaintiff, assisted by his counsel, testified during a telephone hearing before Administrative Law Judge Gwendolyn Hoover (the “ALJ”). Id. On February 23, 2021, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 94; Doc. 12-2, p. 95). On March 25, 2021, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) review the ALJ's decision. (Admin. Tr. 271; Doc. 12-4, p. 89). Along with his request, Plaintiff submitted new evidence that was not available to the ALJ when the ALJ's decision was issued. (Admin. Tr. 25-75; Doc. 12-2, pp. 26-76).
On September 9, 2021, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 15-18; Doc. 12-2, pp. 16-19).
On January 31, 2022, Plaintiff submitted more “new” evidence to the Appeals Council. On March 1, 2022, the Appeals Council found that the second submission of new evidence was not a reason to reopen or change the prior decision. (Admin. Tr. 3; Doc. 12-2, p. 4).
On April 29, 2022, Plaintiff filed a complaint in the district court. (Doc. 1). In his complaint, Plaintiff alleges that the ALJ's decision denying his application is “not in accordance with the law and is not supported by substantial evidence.” (Doc. 1, ¶ 5). As relief, Plaintiff requests that the court reverse the Commissioner's decision and award benefits, or in the alternative remand this case for a new hearing to complete the record. (Doc. 1, p. 2).
On July 7, 2022, the Commissioner filed an answer. (Doc. 11). In the answer, the Commissioner maintains that the decision denying Plaintiff's application was made in accordance with the law and is supported by substantial evidence. (Doc. 11, ¶ 7). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 15), the Commissioner's Brief (Doc. 18), and Plaintiff's Reply (Doc. 19) have been filed. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals. We will also discuss the legal standards relevant to the arguments raised in the parties' briefs.
A. Substantial Evidence Review - the Role of This Court
A district court's review of ALJ decisions in social security cases is limited to the question of whether substantial evidence supports the findings of the final decision-maker. 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.” Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict in the record. 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.” In determining if the Commissioner's decision is supported by substantial evidence under sentence four of 42 U.S.C. § 405(g), the court may consider any evidence that was in the record that was made before the ALJ. The claimant and Commissioner are obligated to support each contention in their arguments with specific reference to the record relied upon.
See 42 U.S.C. § 405(g); 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).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Consolo v. Fed. MaritimeComm'n, 383 U.S. 607, 620 (1966).
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals Council has denied review the district court may affirm, modify, or reverse the Commissioner's decision, with or without a remand based on the record that was made before the ALJ (Sentence Four review).”)
L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (“parties . . . bear the responsibility to comb the record and point the Court to the facts that support their arguments.”); Ciongoli v. Comm'r of Soc. Sec., No. 15-7449, 2016 WL 6821082 (D.N.J. Nov. 16, 2016) (noting that it is not the Court's role to comb the record hunting for evidence that the ALJ overlooked).
The Supreme Court has underscored the limited scope of district court review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.__,__, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
When reviewing the Commissioner's final decision, the court also considers whether the decision-maker's findings were made based on a correct application of the law. In doing so, however, the court is enjoined to refrain from trying to reweigh evidence and “must not substitute [its] own judgment for that of the fact finder.”
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 ....”).
Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
Furthermore, meaningful review cannot occur unless the final decision is adequately explained. As the Third Circuit Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
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 12 months.” 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. To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured.
42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 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”).
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).” 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.
Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1).
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 from engaging in any of his or her past relevant work. 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.
C. Guidelines for the ALJ's Evaluation of Medical Opinion Evidence
The Commissioner's regulations carefully define the sources and types of statements that can be considered “medical opinions.” Social Security records also often include RFC assessments made by state agency consultants at the initial and reconsideration level. ALJs are not required to adopt administrative medical findings made at the initial or reconsideration level, but are required to consider this evidence.
20 C.F.R. § 404.1502(d) (defining medical source); 20 C.F.R. § 404.1513(a)(2) (defining the types of statements that are medical opinions).
The regulatory framework for evaluating medical opinions and prior administrative medical findings includes both factors to guide the analysis, and very specific articulation requirements that must be met in addition to the well-established requirements that apply generally to the ALJ's decision as a whole.
The “medical opinion” regulation directs that an ALJ's consideration of the persuasiveness of competing medical opinions and prior administrative medical findings is guided by the following factors:
(1) the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability);
(2) the extent to which the medical source's opinion is consistent with the record as a whole (consistency);
(3) length of the treatment relationship between the claimant and the medical source;
(4) the frequency of examination;
(5) the purpose of the treatment relationship;
(6) the extent of the treatment relationship;
(7) the examining relationship;
(8) the specialization of the medical source; and
(9) any other factors that tend to support or contradict the opinion.
The most important of these nine factors are numbers one and two, the “supportability” of the opinion and the “consistency” of the opinion. Unlike prior regulations, under the current regulatory scheme, when considering medical opinions and prior administrative medical findings, 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 [the claimant's] medical sources.”
The Commissioner's regulations also provide several articulation requirements. First, the ALJ is always required to explain how he or she considered the “supportability” and “consistency” of a medical source's opinion or a prior administrative finding. Second, the ALJ is only required to articulate how he or she considered the other six factors if there are two equally persuasive medical opinions about the same issue that are not exactly the same. Third, if one medical source submits multiple medical opinions, an ALJ will articulate how he or she considered the medical opinions from that medical source in a single analysis. Fourth, an ALJ is not required to articulate how evidence from non-medical sources is considered based on the 20 C.F.R. § 404.1520c factors. Fifth, the ALJ is not required to articulate or provide any analysis about how he or she considers statements on issues reserved to the Commissioner or decisions by other governmental or nongovernmental entities.
D. Evaluation of Obesity
In 2019, the Commissioner issued a Social Security Ruling to provide guidance about the evaluation of obesity. This ruling explains how the medical community diagnoses obesity, and how a claimant can show obesity is medically determinable and severe. It also provides guidance to ALJs about how obesity should be considered in addressing a claimant's RFC.
SSR 19-2p, 2019 WL 2374244.
SSR 19-2p acknowledges that obesity is a “complex disorder characterized by an excessive amount of body fat, and is generally the result of many factors including environment, family history and genetics, metabolism, and behavior.” In the medical community, “obesity is defined as a [body mass index (“BMI”)] ¶ 30.0 or higher.”
Id. at *2.
Id.
In cases where obesity is identified as a medically determinable impairment, SSR 19-2p instructs that it must be considered throughout the sequential evaluation process. With respect to an ALJ's step three analysis, there is no listing for obesity in 20 C.F.R. Part 404, Subpart P, Appendix 1. The functional limitations obesity causes, however, may medically equal a listing. Where obesity does not equal a listing, an ALJ must still account for the limitations it causes in the RFC assessment. The ruling acknowledges that obesity may cause exertional or nonexertional limitations, including difficulty balancing, stooping, kneeling crouching and crawling, and that the combined effects of obesity with other impairments may be greater than the effects of each impairment considered separately.
Id. at *4.
Id.
E. Consideration Of Evidence Not Presented to the ALJ
When a claimant seeks to rely on evidence not presented to the ALJ, a district court may remand the case to the Commissioner under sentence six of 42 U.S.C. § 405(g) only if three requirements are met.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (quoting Szubak v. Sec'y of HHS, 745 F.2d 831, 833 (3d Cir. 1984)).
First, the evidence must be “new.” Evidence is “new” if it is not cumulative of pre-existing evidence that was introduced to the ALJ.
Szubak, 745 F.2d at 833.
Id.; see e.g., Rainey v. Astrue, No. 11-125, 2012 WL 3779167, at *7 (W.D. Pa. Aug. 31, 2012) (finding a physician's report is not new because it documents complaints of pain and weakness previously reported to other providers, and discusses diagnostic studies already in the record).
Second, the evidence must be material. Evidence is material if it is relevant to the time period under consideration, relevant to the impairments under consideration, probative, and if it is reasonably possible that the evidence would have changed the ALJ's decision if presented earlier.
Szubak, 745 F.2d at 833.
Id.; see e.g., Harkins v. Astrue, No. 10-174, 2011 WL 778403, at *1 n.1 (W.D. Pa. Mar. 1, 2011) (finding that medical records from an August 7, 2009, examination are not material because they post-date the ALJ's June 29, 2009, decision).
Third, the claimant must show “good cause” for not submitting the evidence earlier. If district courts “were to order remand for each item of new and material evidence, [they] would open the door for claimants who withhold evidence from the ALJ in order to preserve a reason for remand.”
Matthews, 239 F.3d at 595.
Matthews, 239 F.3d at 595; Szubak, 745 F.2d at 834 (“A claimant might be tempted to withhold medical reports, or refrain from introducing all relevant evidence, with the idea of obtaining another bite of the apple if the if the Secretary decides that the claimant is not disabled.”).
F. Guidelines For the ALJ's Symptom Evaluation
In social security cases, “symptoms” are defined as the claimant's “own description of [his or her] physical or mental impairments.” The Social Security Regulations and Rulings set out a two-step process to evaluate a claimant's symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. If there is no medically determinable impairment, or if there is a medically determinable impairment but that impairment could not reasonably be expected to produce the claimant's symptoms, an ALJ will not find that those symptoms affect the claimant's ability to perform work-related activities. An ALJ does not consider whether the severity of an individual's symptoms is supported by the objective medical evidence at the first step of this analysis.
SSR 16-3p, 2017 WL 5180304, at *4.
SSR 16-3p, 2017 WL 5180304, at *3.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms caused by the claimant's medically determinable impairments.SSR 16-3p explains:
If an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and the other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities for an adult. . . . In contrast, if an individual's statements about the intensity, persistence, and limiting effects of symptoms are inconsistent with the objective medical evidence and the other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities or abilities to function independently, appropriately, and effectively in an age-appropriate manner.
We may or may not find an individual's symptoms and related limitations consistent with the evidence in his or her record. We will explain which of an individual's symptoms we found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions. We will evaluate an individual's symptoms considering all the evidence in his or her record.
SSR 16-3p, 2017 WL 5180304, at *8.
When evaluating a claimant's symptoms, an ALJ considers objective evidence, a claimant's statements about the intensity, persistence and limiting effects of his or her symptoms, statements made by medical sources in opinions and treatment records, and statements about a claimant's symptoms made by nonmedical sources. This evidence is evaluated based on the following factors:
(1) the claimant's daily activities;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any factor that precipitates or aggravates the claimant's pain or other symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms;
(5) any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms;
(6) any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) any other factors concerning functional limitations and restrictions due to pain or other symptoms.
The ALJ is required to discuss the factors pertinent to the evidence of record, but will not discuss a factor where it is not relevant.
SSR 16-3p, 2017 WL 5180304, at *8.
Although the “statements of the individual concerning his or her symptoms must be carefully considered . . . the ALJ is not required to credit them.” The ALJ is, however, required to explain which of an individual's symptoms he or she finds consistent or inconsistent with the evidence in the record.
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).
SSR 16-3p, 2017 WL 5180304, at *8.
This evaluation is subjective. Some claimants may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other claimants with the same medical impairments, objective evidence, and non-medical evidence. For this reason, district courts generally afford great deference to an ALJ's symptom evaluation.
SSR 16-3, 2017 WL 5180304, at *4.
IV. DISCUSSION
Plaintiff raises the following seven issues in his statement of errors:
(1) The ALJ “erred in failing to properly consider the supportability and consistency of medical opinions.” (Doc. 15, p. 14).
(2) The ALJ “erred in failing to address the opinion of Dr. Tadavarthy.” Id.
(3) The ALJ “erred in failing to include greater limitations in the Plaintiff's ability to pay attention and concentrate.” Id.
(4) The ALJ “erred in failing to account for the Plaintiff's obesity.” Id.
(5) The ALJ “erred in failing to accept the sitting, standing and walking limitations set forth by Dr. Kneifati.” Id.
(6) “[T]he evidence submitted after the decision is new and material.” Id.
(7) The ALJ “erred in finding the Plaintiff's statements were not consistent with the evidence.” Id.
We construe Plaintiff's brief as actually raising the following six issues:
(1) Whether the ALJ properly evaluated Therapist Kimber's Opinion;
(2) Whether the ALJ properly evaluated Dr. Tadavarthy's Opinion;
(3) Whether the ALJ adequately articulated her consideration of Dr. Kneifati's Opinion;
(4) Whether the ALJ properly evaluated Plaintiff's obesity;
(5) Whether this case should be remanded pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of a period of inpatient hospitalization that occurred after the ALJ's decision was issued; and
(6) Whether substantial evidence supports the ALJ's symptom evaluation.
We will begin our analysis by summarizing the ALJ's decision, then will address each issue in turn.
A. The ALJ's Decision Denying Plaintiff's Application
In her February 2021 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through December 31, 2023. (Admin. Tr. 81; Doc. 12-2, p. 82). Then, Plaintiff's application was evaluated 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 November 15, 2018, (Plaintiff's alleged onset date) and February 23, 2021, (the date the ALJ decision was issued) (“the relevant period”). Id.
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: congenital club foot, osteoarthritis, obesity with BMI of 41.6, asthma, COPD, bipolar disorder-mixed, OCD, and anxiety. Id. The ALJ also identified a medically determinable non-severe impairment of migraines, and a non-medically determinable impairment of PTSD. (Admin. Tr. 82; Doc. 12-2, p. 83).
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. § 404.1567(b) except:
He can occasionally lift and/or carry 20 pounds, frequently lift and/or carry up to 10 pounds, stand and/or walk for 4 hours, sit for 6 hours in an 8-hour work day with normal breaks, and he can occasionally operate foot controls with bilateral lower extremities. The claimant can occasionally climb ramps/stairs/ladders/ropes/scaffolds, stoop, kneel, crouch, and crawl. He should avoid even moderate exposure to extreme cold, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards (such as moving mechanical parts). He is limited to simple, routine
tasks, he can make simple work related decisions, maintain concentration for 2-hour periods of time, and tolerate occasional interaction with the public, and occasional interaction with coworkers, so long as there is no work in tandem with coworkers.(Admin. Tr. 84; Doc. 12-2, p. 85).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in his past relevant work. (Admin. Tr. 92; Doc. 12-2, p. 93).
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. (Admin. Tr. 93-94; Doc. 12-2, pp. 94-95). To support her conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: marker, DOT #209.587-034; assembler, electrical accessories I, DOT #729.687-010; and inspector/hand packager, DOT #559.687-074. Id.
B. The ALJ Properly Evaluated Therapist Kimber's Opinion
On September 18, 2019, Plaintiff began seeing Therapist Sarah Kimber. (Admin. Tr. 713-717; Doc. 12-7, pp. 339-343). Initially he saw her weekly, but then reduced his visits to biweekly sessions. Id. During the pandemic he received treatment via telehealth. Id. On December 22, 2020, Therapist Kimber completed a checkbox-type medical source statement. Id. (appearing at exhibit 20F of the administrative transcript). On the checkbox form, Therapist Kimber was asked to rate Plaintiff's ability to perform certain activities on the following scale: Category I (Does not preclude performance of any aspect of the job); Category II (precludes performance for 1% - 10% of an 8 hour workday); Category III (precludes performance for 10% - 15% of an 8 hour workday); Category IV (precludes performance for 15% or more of an 8 hour workday).
Therapist Kimber assessed that Plaintiff had Category IV limitations in the following activities: remembering locations and work-like procedures; understanding and remembering detailed instructions; carrying out detailed instructions; maintaining attention and concentration for extended periods of time; making simple work-related decisions; accepting instructions and responding appropriately to criticism from supervisors; responding appropriately to changes in the work setting; traveling in unfamiliar places or using public transportation; and setting realistic goals to make plans independently of others. Id.
Therapist Kimber assessed that Plaintiff had Category III limitations in the following activities: performing activities within a schedule, maintaining regular attendance, and being punctual and within customary tolerances; sustaining an ordinary routine without special supervision; working in coordination with or in proximity to others without being distracted by them; and completing a normal workday and workweek without interruptions from psychologically based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods. Id.
Therapist Kimber assessed that Plaintiff had Category II limitations in the following activities: asking simple questions or requesting assistance; getting along with coworkers or peers without distracting them or exhibiting behavioral extremes; and maintaining socially appropriate behavior, and adhering to basic standards of neatness and cleanliness. Id.
Therapist Kimber assessed that Plaintiff had Category I limitations in the following activities: understanding and remembering very short and simple instructions; carrying out very short and simple instructions; interacting appropriately with the general public; and being aware of normal hazards and taking appropriate precautions. Id.
In addition to the activities she rated, Therapist Kimber also assessed that Plaintiff would be “off task” more than 30% of the workday, would be absent from work five or more days per month, would be unable to complete an 8-hour workday more than five days per month, and would be less than 50% efficient when compared to an average worker. Id.
The ALJ found that Therapist Kimber's opinions were not fully persuasive. In doing so, she explained:
The opinions at Exhibit 20F are not fully persuasive. Ms. Kimber did not support how she reached these opinions and her treatment records do not support the limitations she noted at Exhibit 20F. Her treatment records include progress notes from March 2020 which indicate the claimant has greatly increased his ability to incorporate coping strategies into his daily living and he has been maintaining his progress during the last treatment, progress notes from July 2020 that the claimant has continued to increase his ability to manage his negative thinking and feelings of being overwhelmed by past experiences and that he has made progress in avoiding repetitive thoughts and pushing through to maintain his focus on daily tasks and goals. Additionally, her progress notes from October 2020 indicate that the claimant has continued to practice developing his ability to positively interact with others and share his thoughts and feelings appropriately do not support her opinions at Exhibit 20F.
Additionally, a number of the opinions at Exhibit 20F are inconsistent with the overall medical evidence, including the claimant's response to treatment as evidenced in Ms. Kimber's treatment notes and Exhibits 11F, 12F, 17F, and 18F. Several treatment records indicated either normal to mildly impaired or at worst, concentration and attention but Ms. Kimber indicated the claimant would be off task more than 30 percent of the workday. Several treatment records indicate the claimant is cooperative on exams and that he has fair insight and judgment and Ms. Kimber's opinions indicate the claimant would be more limited than what would be expected for an individual who was cooperative when he meets with his mental health providers and who exhibits fair insight and judgment.(Admin. Tr. 90-91; Doc. 12-2, pp. 91-92).
Plaintiff argues that substantial evidence does not support the ALJ's assessment of Therapist Kimber's opinion for three reasons. First, Plaintiff argues that remand is required because the ALJ did not discuss the supportability or consistency of the opinion. Second, Plaintiff argues that the ALJ's evaluation of the consistency factor is the product of “cherry-picking” the medical record. Third Plaintiff argues that substantial evidence does not support the ALJ's supportability analysis of Plaintiff's social interaction limitations because a Plaintiff's ability to cooperate in a clinical setting does not contradict his alleged social interaction limitations.
The Commissioner disagrees, and argues that the ALJ's analysis of Therapist Kimber's opinion complies with the regulations and is supported by the record.
We will address each of these arguments separately below.
1. The ALJ Addressed The Supportability & Consistency of Therapist Kimber's Opinion
Plaintiff argues that the ALJ did not address supportability or consistency, as required under 20 C.F.R. § 404.1520c. In support of his position, Plaintiff relies on two cases: Huggler v. Kijakazi, and Howard v. Kijakazi.
Huggler v. Kijakazi, No 1:20-CV-2322, 2022 WL 3020419 (M.D. Pa. July 29, 2022); Howard v. Kijakazi, No. 1:20-CV-2321, 2022 WL 2919275 (M.D. Pa. July 25, 2022).
We are not persuaded that these cases require remand. Both cases Plaintiff cites are distinguishable from this case. In Huggler, the case was remanded because the discussion of a medical opinion was “omitted from the ALJ's decision entirely, with no explanation given as to why the opinion was omitted.” Unlike Huggler, the ALJ in this case discussed Therapist Kimber's opinion in the decision. Similarly, in Howard, the ALJ's full analysis of the medical opinion evidence was limited to a short paragraph that did not discuss the supportability of the state agency consultant's opinion and did not discuss the supportability or consistency of a consultative examiner's opinion. In this case, the ALJ discussed both supportability and consistency when she found that Therapist Kimber's opinion was not fully persuasive.
Huggler, 2022 WL 3020419, at *7.
Howard, 2022 WL 2913275, at *11-12.
Accordingly, we are not persuaded that remand is required due to a failure to articulate why Therapist Kimber's opinion was not fully persuasive.
2. The ALJ Did Not Cherry-Pick The Record When Analyzing The Consistency of Therapist Kimber's Opinion
Plaintiff suggests that the ALJ improperly “cherry-picked” the record and cites to three treatment records that were allegedly not considered: (1) a November 29, 2019 treatment record that contains a diagnosis of Bipolar I Disorder (Admin. Tr. 566; Doc. 12-7, p. 192); (2) an August 9, 2019 treatment record documenting Plaintiff's report of suicidal ideation and hallucinations (Admin. Tr. 570; Doc. 127, p. 196); and (3) an April 12, 2019 psychiatric evaluation where Plaintiff reported that he carried a hammer attached to his belt because he is afraid of people (Admin. Tr. 515; Doc. 12-7, p. 141).
To the extent Plaintiff suggests that the ALJ impermissibly cherry-picked the record when she evaluated Therapist Kimber's opinion because she ignored three treatment records that are consistent with it, we are not persuaded. As another court has explained:
Although the Third Circuit “do[es] not expect the ALJ to make reference to every relevant treatment note in a case [involving] voluminous medical records, [the court] do[es] expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law.” Fargnoli v. Massanari, 247 F.3d 24, 42 (3d Cir. 2001); see also Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (“Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.”). Moreover, an ALJ is not permitted to “cherry-pick[ ]” or ignor[e] medical assessments that run counter to her finding.” Rios v. Comm'r of Soc. Sec., 444 Fed.Appx. 532, 535 (3d Cir. 2011) (citing Dougherty v. Barnhart, Civ. No. 05-5383, 2006 WL 2433792, at *10 n.4 (E.D. Pa. Aug. 21, 2006); Colon v. Barnhart, 424 F.Supp.2d 805, 813-14 (E.D. Pa. 2006)); see also Schroeder v. Berryhill, Civ. No. 16-464, 2017 WL 4250057, at *17 (M.D. Pa. Sept. 5, 2017) (“The sort of evaluation, where the evaluator mentions only isolated facts that militate against the finding of disability and ignores much other evidence that points another way, amounts to a ‘cherrypicking' of the record which this Court will not abide.”). Similarly, “[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.'” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). “The ALJ must consider all the evidence and give some reason for discounting the
evidence she rejects.” Id. (quoting Stewart v. Sec. of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983)).
Smith v. Berryhill, No. CV 17-2661, 2018 WL 7048069 (E.D. Pa. Nov. 27, 2018), report and recommendation adopted, No. CV 17-2661, 2019 WL 199942 (E.D. Pa. Jan. 11, 2019).
We are not persuaded, however, that the ALJ improperly “cherry-picked” evidence when she evaluated the consistency of Therapist Kimber's opinion. In her opinion, the ALJ found that Therapist Kimber's evaluation of Plaintiff's ability to concentrate and maintain attention is “inconsistent with the overall medical evidence.” Plaintiff cites to three records that he contends contradict that assessment. The November 2019 treatment record does not discuss Plaintiff's ability to concentrate or maintain attention. (Admin. Tr. 566; Doc. 12-7, p. 192). The August 2019 treatment record does not discuss Plaintiff's ability to concentrate or maintain attention. (Admin. Tr. 570; Doc. 12-7, p. 196). The April 2019 treatment record notes that concentration is only mildly impaired. (Admin. Tr. 516; Doc. 12-7, p. 142). These records do not contradict the ALJ's rationale and are indeed inconsistent with the Category IV limitations Therapist Kimber assessed. Furthermore, the ALJ did acknowledge Plaintiff's diagnosis of Bipolar I Disorder, and did acknowledge that treatment records documented a history of suicidal ideation. (Admin. Tr. 88; Doc. 12-2, p. 89) (acknowledging that Plaintiff reported suicidal ideation with no intent to act on August 30, 2019); (Admin. Tr. 81; Doc. 12-2, p. 83) (acknowledging Bipolar Disorder as a medically determinable severe impairment).
In support of this argument, Plaintiff cited to three treatment notes by Dr. Tadavarthy. Therefore we construe this as an argument that substantial evidence does not support the ALJ's assessment of the consistency factor.
Next, Plaintiff argues that the ALJ did not discuss Plaintiff's propensity to carry a hammer because he is afraid of people when she discounted Therapist Kimber's assessment that Plaintiff had a Category I limitation (i.e., a limitation that does not preclude any aspect of the job) interacting with the public, a Category II limitation getting along with co-workers (i.e., a limitation precludes performance for 1% - 10% of an 8 hour workday), and a Category III limitation working in coordination with others (i.e., a limitation that precludes performance for 10% - 15% of an 8 hour workday). We are not persuaded.
Therapist Kimber also assessed that Plaintiff had a Category IV limitation accepting instructions and responding appropriately to criticism from supervisors. Plaintiff attributes this limitation to Plaintiff's memory limitation, and not his fear of people. (Doc. 15, p. 16); (Admin. Tr. 131; Doc. 12-2, p. 132) (testifying that he understands directions and then forgets them). Plaintiff's fiancee reported that he has no problem getting along with authority figures. (Admin. Tr. 330; Doc. 12-6, p. 32).
First, the ALJ limited Plaintiff to occupations that would require “no work in tandem with coworkers.” (Admin. Tr. 84; Doc. 12-2, p. 85). Because the RFC does not require Plaintiff to work in coordination with others, even if this aspect of the opinion was improperly discounted it would not affect the outcome in this case.
Second, the ALJ limited Plaintiff to no more than occasional (from very little up to one third of the workday) interaction with co-workers and the public. Because the RFC appears to be consistent with Therapist Kimber's opinion, any error discounting these aspects of the opinion does not affect the outcome in this case.
3. Substantial Evidence Supports the ALJ's Supportability Analysis
In a different section of his brief, Plaintiff argues that the ALJ's rationale that Therapist Kimber's evaluation of Plaintiff's social interaction limitations is inappropriate. (Doc. 15, p. 17). In support of his argument Plaintiff cites to Harper v. Colvin.
Harper v. Colvin, No. 4:13-CV-2811, 2015 WL 1322168 (M.D. Pa. Mar. 24, 2015).
In Harper, the ALJ gave little weight to a treating source opinion (Dr. Cornell). In doing so, the ALJ assessed that the claimant's presentation in a clinical setting undermined the moderate social interaction limitations, and the marked difficulty adapting to changes that Dr. Cornell assessed. On appeal to the district court, the case was remanded to the ALJ because the court concluded that:
In that case Plaintiff attended a consultative examination with Dr. Cornell, then eight months later established a treatment relationship with her.
Harper's ability to cooperate with a medical examiner in a safe, controlled environment does not necessarily contradict Dr. Cornell's conclusion that he suffered from antisocial personality disorder and social anxiety, both of which would be exacerbated in most workplace
situations. As the United States Court of Appeals for the Third Circuit has noted, “[f]or a person . . . who suffers from an affective or personality disorder marked by anxiety, the work environment is completely different from home or a mental health clinic.” Morales, 225 F.3d at 319. Thus, observations made during a clinical visit do not necessarily correlate to an individual's ability to function in a work setting.
Harper, 2015 WL 1322168, at *6.
We find, however, that this case is distinguishable from Harper. Unlike in Harper, the ALJ in this case discounted Therapist Kimber's opinion both because the therapist's records did not support the social limitations and because the limitations were not well-explained. Plaintiff does not appear to dispute that Therapist Harper did not provide any relevant supporting explanation in the opinion itself.
Furthermore, even if an error occurred remand is unlikely to produce a different result. As noted in Section IV(B)(2) of this Report, the ALJ limited Plaintiff to occupations requiring only “occasional” interaction with co-workers and the public, and no tandem tasks. This is consistent with the Category I, II, and III limitations Therapist Harper assessed.
4. Substantial Evidence Supports the ALJ's Decision To Exclude Therapist Kimber's Assessment That Plaintiff Would Be Off Task More than 15% of the Workday From the RFC Assessment
In her medical source statement, Therapist Kimber assessed that Plaintiff would be “off task” more than 15% of the time, and assessed various “social” limitations. Therapist Kimber also indicated that, taking Plaintiff's physical and mental limitations in combination, Plaintiff would be “precluded from performing a job, or ‘off task,' that is, either unable to perform work and/or away from [his] work environment” more than 30% of the time.” (Admin. Tr. 716; Doc. 12-7, p. 342). When the ALJ discounted Therapist Kimber's opinion, she noted that, “[s]everal treatment records indicated either normal to mildly impaired or [sic] at worst, concentration and attention but Ms. Kimber indicated that the claimant would be off task more than 30 percent of the workday.” (Admin. Tr. 90; Doc. 12-2, p. 91). In the next sentence, the ALJ wrote “[s]everal treatment records indicate the claimant is cooperative on exams and that he has fair insight and judgment and Ms. Kimber's opinions indicate the claimant would be more limited than what would be expected for an individual who was cooperative when he meets with his mental health providers and who exhibits fair insight and judgment.” (Admin. Tr. 91; Doc. 12-2, p. 92). Plaintiff argues:
The ALJ found that the limitation from therapist Kimber that the Plaintiff would be off task 30% of the workday was not supported because the Plaintiff was cooperative with providers. The Plaintiff asserts that this limitation, or even a limitation to being off task as little as 15% of the time, would preclude being able to retain competitive work based on the vocational expert testimony. Again, Harper v Colvin, supra, rejects the argument that the ability to relate well to providers in a clinical setting is in any way predictive of the ability to work. The ALJ found that Dr. Kajic's opinion was partially persuasive in that it was generally consistent with the opinion of the nonexamining state agency psychologists. In fact, Dr. Kajic found that the Plaintiff's attention, concentration and memory were impaired while the state agency psychologist opinion included a moderate limitation in maintaining concentration, persistence and pace. The Plaintiff asserts that the ALJ erred in failing to include a limitation to this degree in her RFC findings. The ALJ must include established limitations in the RFC findings. Ramirez v. Barnhart, 372 F.3d 546, 554 (3rd Cir. 2004).(Doc. 15, p. 18). We construe this as an argument that substantial evidence does not support the ALJ's decision to discount Therapist Kimber's assessment that Plaintiff would be off task more than 15% of the workday. We are not persuaded.
Based on our reading of the ALJ's decision, the ALJ suggests that Therapist Kimber's assessment of Plaintiff's ability to remain on task is contradicted by “several treatment records” that indicate either “normal” or “mildly impaired” concentration. (Admin. Tr. 91; Doc. 12-2, p. 92); see also (Admin. Tr. 512; Doc. 127, p. 138) (noting Plaintiff's attention and concentration seemed good on April 12, 2019); (Admin. Tr. 511; Doc. 12-7, p. 137) (noting Plaintiff's attention and concentration seem good on May 10, 2019); (Admin. Tr. 572; Doc. 12-7, p. 198) (noting Plaintiff's attention and concentration were “fair” on January 3, 2020).
In addition to these records, three other medical sources assessed that Plaintiff could maintain attention and concentration for extended periods.
On August 28, 2019, Dr. Kajic examined Plaintiff. He noted that Plaintiff's attention, concentration, recent memory, and remote memory were mildly impaired. (Admin. Tr. 556; Doc. 12-7, p. 182). In an accompanying medical source statement, Dr. Kajic assessed that Plaintiff would have no difficulty understanding and remembering simple instructions, and no difficulty carrying out simple instructions. (Admin. Tr. 558; Doc. 12-7, p. 184).
On September 6, 2019, Dr. Gavazzi assessed that Plaintiff could perform “simple, routine, repetitive tasks in a stable environment,” and had no significant limitations in the ability: to carry out short and simple instructions; maintain attention and concentration for extended periods; and make simple work-related decisions. (Admin. Tr. 157-159; Doc. 12-3, pp. 14-16).
On April 7, 2020, Dr. Fink assessed that Plaintiff could perform “simple, routine, repetitive tasks in a stable environment,” and had no significant limitations in the ability to: carry out short and simple instructions; maintain attention and concentration for extended periods; and make simple work-related decisions. (Admin. Tr. 177-179; Doc. 12-3, pp. 34-36).
The ALJ found these assessments partially persuasive, and adopted these sources' assessments that Plaintiff could understand, remember and carry out short simple instructions, and make simple work-related decisions. She also observed that Plaintiff was “frequently noted as having fair to good attention and concentration and fair insight and judgment, all of which support he retains some ability to work” consistent with the ALJ's RFC assessment. (Admin. Tr. 92; Doc. 12-2, p. 93).
Accordingly, we find that the ALJ's rationale for excluding this limitation from the RFC assessment is appropriate, and that substantial evidence supports her conclusion.
C. The ALJ Properly Evaluated Dr. Tadavarthy's Opinion
In an April 12, 2019, psychiatric evaluation, Dr. Tadavarthy noted under the heading “History of Present Illness” that Plaintiff's “mental illness prevents him from working.” (Admin. Tr. 514; Doc. 12-7, p. 140) (appearing at exhibit 7F of the administrative transcript).
The same psychiatric evaluation appears in exhibit 11F of the administrative transcript. (Admin. Tr. 562; Doc. 12-7, p. 188).
On March 27, 2020, Dr. Tadavarthy completed an employability assessment form for the Pennsylvania Department of Human Services. (Admin. Tr. 603-604; Doc. 12-7, pp. 229-230) (exhibit 13F of the administrative transcript). On that form, Dr. Tadavarthy identified Plaintiff's current diagnoses as Bipolar Disorder and Anxiety Disorder. Id. He checked a box to indicate that Plaintiff had a disability that permanently precludes any gainful employment and that makes him a candidate for Social Security Disability or SSI. Id.
In her decision, the ALJ did not analyze Dr. Tadavarthy's statements because they were on issues reserved to the Commissioner. In doing so, the ALJ explained:
Exhibits 11F and 7F contain the following statement: “his mental illness prevents him from working.” This statement is not in vocationally relevant terms and a finding that a claimant is disabled or prevented from working is an issue reserved for the Commissioner. Similarly, Exhibit 13F indicates that the claimant is permanently disabled. In accordance with 20 CFR 404.1520b(c) and 416.920b(c), this decision does not analyze evidence that is inherently neither valuable nor persuasive; these regulations specifically note that statements that an individual is able or unable to work are not inherently neither [sic] valuable nor persuasive.(Admin. Tr. 92; Doc. 12-2, p. 93).
Plaintiff argues that the ALJ should have, but did not, analyze the supportability and consistency of Dr. Tadavarthy's employability assessment form. (Doc. 15, pp. 16-17). Under the applicable regulations, however, the ALJ was not required to do so. Pursuant to 20 C.F.R. § 404.1520b(c)(3), statements that would direct an ALJ's decision that a claimant is disabled or not disabled are considered “statements on issues reserved to the Commissioner.” Dr. Tadavarthy's statement on the employability assessment form that Plaintiff has a disability that permanently precludes the performance of gainful employment is such a statement. Pursuant to 20 C.F.R. § 404.1520b(c) this type of statement is “neither valuable nor persuasive” and an ALJ “will not provide any analysis about how [he or she] considered such evidence in [the] determination or decision, even under § 404.1520c.”
Accordingly, remand is not required for further analysis of the statement that Plaintiff cannot work contained in the employability assessment form.
D. The ALJ Adequately Explained Her Evaluation of Dr. Kneifati's August 2019 Opinion
Dr. Kneifati examined Plaintiff two times and issued two medical opinions.
On August 28, 2019, Dr. Kneifati examined Plaintiff. (Admin. Tr. 526-542, 549-50; Doc. 12-7, pp. 152-168, 175-176) (appearing at exhibits 9F and 15F of the administrative transcript). Following that examination, Dr. Kneifati issued a medical source statement. (Admin. Tr. 543-548; Doc. 12-7, pp. 170-174). In that medical source statement, Dr. Kneifati assessed that Plaintiff could: sit for four hours per eight-hour workday; stand for three hours per eight-hour workday; and walk for two hours per eight-hour workday. Id.
In the opinion, Dr. Kneifati also assessed that Plaintiff could: occasionally lift or carry up to ten pounds; continuously reach, handle, finger, feel, push, and pull; frequently climb stairs, climb ramps, crouch, and crawl; and occasionally operate foot controls, climb ladders, climb scaffolds, balance, stoop, and kneel. Dr. Kneifati also assessed that Plaintiff could only occasionally tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity, extreme cold and extreme heat, and cannot tolerate any exposure to dusts, odors, fumes and pulmonary irritants.
On July 29, 2020, Dr. Kneifati examined Plaintiff for a second time. (Admin. Tr. 608-611, 618-621; Doc. 12-7, pp. 234-237, 244-247). Following that examination, Dr. Kneifati issued a second medical source statement. (Admin. Tr. 612-617; Doc. 12-7, pp. 238-243). In the medical source statement, Dr. Kneifati assessed that Plaintiff could: sit up to five hours per eight-hour workday; stand up to three hours per eight-hour workday; and walk up to two hours per eight-hour workday. Id.
In the opinion, Dr. Kneifati also assessed that Plaintiff could: occasionally lift and/or carry up to ten pounds; continuously reach, handle, finger, feel, push, and pull; and occasionally climb ramps, climb stairs, climb ladders, climb scaffolds, balance, stoop, kneel, crouch, crawl, and operate foot controls. Dr. Kneifati also assessed that Plaintiff could only occasionally tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity, extreme cold and extreme heat, and cannot tolerate any exposure to dusts, odors, fumes and pulmonary irritants.
During the administrative hearing, Plaintiff's counsel posed a hypothetical question that included the same sitting, standing and walking limitations set forth in Dr. Kneifati's first opinion. The Vocational Expert (“VE”) responded that such an individual could not work because for unskilled work an individual must be able to stand and walk for a combined total of eight hours, or sit and stand for a combined total of eight hours. For the benefit of the Court and parties that portion of the transcript has been reproduced below:
For example, based on Dr. Kneifati's assessment Plaintiff could not work an eight-hour day sitting and standing (he could only work seven hours), and could not work an eight-hour day standing and walking (he could only work four hours).
Q Yes, if the-this same individual-and this is according to Dr. [Kneifati's] consulting examination from August 28, 2019- even if the individual would occasionally be able to tolerate more sitting, standing, and walking, if there were-at least half the days, the claimant-or the individual would be able to sit no more than four hours, stand no more than three hours, and walk no more than two hours in an eight-hour period, would such an individual be able to either do the claimant's past work or any other jobs?
A No, not at the unskilled level of work. And I-I'll try to explain this. There are occupations where you can sit or stand or-and there are occupations where you can sit or stand or-and there are occupations where you stand and walk, but at the unskilled level, you can't combine sitting, standing, and walking in order to make up your eight-hour day. So, you know, the combination of sitting and standing only equates to seven hours, the combination of sitting and walking-or-or I should say standing and walking, it's only about five hours. So-and generally speaking, there is no unskilled eight-hour shift where
you have to be able to perform-or you're-you're required to perform standing, sitting, and walking in order to make up that eight hours.(Admin. Tr. 139; Doc. 12-2, p. 140).
The ALJ found that most of the limitations Dr. Kneifati assessed in both opinions were “persuasive.” The ALJ provided a three-paragraph explanation:
The following opinions at Exhibits 9F and 15F are persuasive: the claimant does not require a cane to ambulate, he has no limitations in his ability to reach, handle, finger, and push and pull with his upper extremities, he can occasionally operate foot controls with his lower extremities, the occasional postural limitations noted at 9F/23 and 15F/10, the claimant's impairments do not affect his hearing, vision, or ability to work around noise, the environmental limitations other than the proposed limitations regarding dusts, odors, fumes, and pulmonary irritants, and the claimant's abilities to handle various activities at Exhibit 9F/25 and 15F/12 other than the proposed limitations regarding walking a block at a reasonable pace on rough or uneven surfaces.
In support of these opinions, the consultative examiner noted the claimant has clubbed feet, a history of surgery on both feet and ongoing reported pain and stiffness that is worse with walking and standing, especially on uneven surfaces. He noted normal musculoskeletal and neurological findings when examined and the opinions that are considered persuasive as noted above are generally consistent with the state agency opinions (Exhibits 9F, 15F, 1A, and 3A).
Turning to the remaining limitations at Exhibit 9F and 15F, they are not persuasive. The consultative examiner does not adequately support while [sic] the claimant can only lift up to 10 pounds occasionally and such an opinion is inconsistent with the state agency opinions. He does not fully support his remaining opinions and the remaining opinions are inconsistent with the opinions of the state agency consultants. For example, he indicated the claimant should never be exposed to dust, odors, fumes, and pulmonary irritants but the claimant performs chores
such as cleaning his homes [sic] and he works with horses several times a week, all of which would expose him to dust, odors, fumes, and pulmonary irritants (Exhibits 9F, 1A, and 3A).(Admin. Tr. 91; Doc. 12-2, p. 92).
With this background in mind, we turn to Plaintiff's argument. We have reproduced Plaintiff's argument below:
Dr. Kneifati advised on August 28, 2019 that the Plaintiff could sit up to four hours, stand up to three hours and walk up to two hours in an eight hour workday. The Vocational Expert advised this combination would preclude any unskilled work. However, he performed a second consulting evaluation on July 29, 2020 which he found the Plaintiff could sit five hours, stand three hours and walk two hours. The ALJ found the reports from both examinations were persuasive that the Plaintiff could perform light work but not persuasive for the remaining limits. The ALJ specifically found the consulting opinion that the Plaintiff was limited to lifting ten pounds inconsistent with the state agency opinions. The ALJ failed to clearly explain why she did not accept the original sitting, standing and walking limitations at least for the period of time up to July 29, 2020. Gostomski v. Kijakazi, No. 1:21-CV-597[, 2022 WL 3913389 (M.D. Pa. Aug. 30, 2022)].(Doc. 15, pp. 19-20). We construe this as an argument that the ALJ did not adequately explain why the sitting, standing, and walking limitations from Dr. Kneifati's August 2019 opinion were not incorporated in the RFC assessment.
We find that Plaintiff's argument is not persuasive. Although the sitting, standing, and walking limitations set out in the August 2019 opinion were not specifically addressed in the ALJ's analysis, the ALJ concluded that Dr. Kneifati did “not fully support his remaining opinions and the remaining opinions are inconsistent with the opinions of the state agency consultants.” Although underdeveloped, the ALJ's explanation when viewed in the context of the ALJ's decision and record as a whole, is enough to allow for judicial review.
An ALJ is not “required to supply a comprehensive explanation for the rejection of evidence; in most cases, a sentence or short paragraph would probably suffice,” so long as that short paragraph or sentence is enough to enable a reviewing court to perform its statutory function of judicial review. The ALJ's explanation that these limitations are not supported by Dr. Kneifati and not consistent with the state agency consultant opinions is sufficient in this case.
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981); see also Revisions to Rules Regarding the Evaluation of Medical Evidence Final Rules, 82 Fed.Reg. 5844-01, at 5858 (Jan. 18, 2017) (Explaining that the “reasonable articulation” requirement in 20 C.F.R. § 404.1520c will “allow a subsequent reviewer or a reviewing court to trace the path of an adjudicator's reasoning, and will not impede a reviewer's ability to review a determination or decision, or a court's ability to review our final decision.”).
The factor of “supportability” refers to the objective evidence and explanations a medical source provides. Where a source presents objective findings and provides a clear explanation for a limitation, that source's opinion is more persuasive. In this case, before finding Dr. Kneifati's August 2019 sitting, standing, and walking limitations were “not persuasive,” the ALJ provided a thorough discussion of why she found the state agency opinions as to these same functions were “persuasive.” As to supportability, the ALJ noted that the two state agency opinions were supported by the explanations those sources provided. (Admin. Tr. 90; Doc. 12-2, p. 91) (explaining that the state agency physicians “cited to several records which indicated a normal pulmonary effort, no respiratory distress, a normal range of motion from a musculoskeletal standpoint, a normal range of motion of the claimant's lumbar spine, equal deep tendon reflexes, negative straight leg raise testing, and morbid obesity,” and “abnormal findings pertaining to the claimant's feet, including clubbed feet, a history of surgeries on both feet, and pain that is aggravated by standing and walking, especially on uneven surfaces.”). Review of those opinions, and the explanations provided, supports the ALJ's analysis. (Admin. Tr. 150, 154-157, 174-177; Doc. 12-2, pp. 7, 11-14, 31-34). Juxtaposed against Dr. Kneifati's brief note that the sitting, standing and walking limitations were the result of “COPD and club feet,” and limited examination findings, it is clear why the ALJ concluded Dr. Kneifati's August 2019 opinion was not as fully supported as the other medical opinions.
Id.
The factor of “consistency” refers to how consistent a medical opinion is with “evidence from other medical sources” in the claim. Where an opinion is consistent with evidence from other medical sources, it is more persuasive. The ALJ explained that Dr. Kneifati's opinion was not consistent with the state agency consultant opinions. Substantial evidence supports this conclusion. In August 2019, Dr. Kneifati assessed that Plaintiff could sit for four hours, while the two state agency consultants found that Plaintiff could sit for six hours. Dr. Kneifati assessed that Plaintiff could stand for three hours and walk for two hours, while the two state agency consultants concluded that Plaintiff could “stand and/or walk (with normal breaks) for a total of four hours.
Id.
Accordingly, we find that the ALJ's rationale for finding the state agency opinions as to sitting, standing, and walking more persuasive than Dr. Kneifati's opinion is explained well enough to permit review, and that substantial evidence supports the ALJ's analysis.
E. Substantial Evidence Supports The ALJ's Evaluation of Plaintiff's Obesity
The ALJ found that Plaintiff had a BMI of 41.6, and therefore has a medically determinable impairment of obesity. (Admin. Tr. 81; Doc. 12-2, p. 82). In doing so, the ALJ explained:
The Social Security Administration Rulings pertaining to obesity indicate that obesity should be considered in determining whether claimants have medically determinable impairments that are severe, whether those impairments meet or equal any listing, and finally in determining the residual functional capacity. As indicated in the obesity rulings, obesity may have an adverse impact upon coexisting impairments. For example, someone with obesity and arthritis affecting a weight bearing joint may have more pain and limitation than might be expected from arthritis alone. These considerations have been taken into account in reaching the conclusions set forth below.(Admin. Tr. 82; Doc. 12-2, p. 83).
At step three of the sequential evaluation process, the ALJ assessed that Plaintiff did not meet or equal listing 1.02 or 1.03. In doing so, she explained:
Since the claimant can ambulate effectively as defined in the regulations, listings 1.02 and 1.03 are not met. Although the claimant has an antalgic gait, neither state agency consultant indicated that any listings, including listings 1.02 and 1.03, were met or medically equalled [sic]. The claimant's activities of daily living include taking care of his horses several days a week (testimony), which suggests the claimant is on his feet while caring for his horses. I considered that the claimant's issues with his feet and ankles stem back to birth, a number of the claimant's past jobs had him on his feet for several hours a day, and the record does not show his feet, even when coupled with obesity, have gotten worse since his alleged onset date. If anything, it looks like the orthotics he got a few months before his alleged onset date were
helpful to him (Exhibits 6E and 1F). His ability to handle work that had on him [sic] feet several hours a day to perform both standing and walking duties indicates the claimant could ambulate effectively while he worked.
With no evidence of a significant deterioration of his feet or his ability to walk referenced in his treatment records since his alleged onset date (Exhibits 5F, 6F, and 19F) and in consideration of neither state agency consultant finding the above listings were met or medically equaled, I find that the claimant can still ambulate effectively as defined in the musculoskeletal regulations.(Admin. Tr. 82-83; Doc. 12-2, pp. 83-84).
Then in the RFC assessment section of her decision, the ALJ explained:
The above residual functional capacity includes claimant's lifting, carrying, standing, walking, operating foot controls with his lower extremities, and postural limitations due to the following: the claimant has had clubbed feet since birth, surgical intervention to both feet, osteoarthritis of both ankles and feet, and the claimant is obese with a BMI over 40. Podiatry records from March 2018 note a BMI of 41.2, a limited range of motion of both ankles secondary to joint adaptation and tightness of the Achilles tendon, and there was no range of motion of the right foot about the area of the right mid/rear foot joints, including the calcaneocuboid, subtalar joint and talonavicular joints. This foot appeared to be fused in an everted position (Exhibit 1F). ....
Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by the record, including the following. Due to the claimant's trouble with his feet, COPD, obesity and asthma, the above residual functional capacity limits the claimant to a range of light work, in which his standing and/or walking is decreased to four hours in an eight hour workday, he is limited to occasional operation of foot controls with both lower extremities, his residual functional capacity contains multiple postural
limitations, and his residual functional capacity contains environmental limitations.(Admin. Tr. 86, 92; Doc. 12-2, pp. 87, 93).
Plaintiff argues:
The record shows that the Plaintiff was 5'7" tall and weighed 274 pounds at the time of the hearing. The Plaintiff asserts that his obesity, in combination with his club feet, would preclude walking the six hours a day required to perform light work and would therefore limit the Plaintiff to no more than sedentary work. A remand was ordered in Ramos v. Kijakazi, Civil No. 1:20-CV-02415[, 2022 WL 3021375 (M.D. Pa. July 29, 2022)] for the ALJ's failure to consider the Plaintiff's obesity. The ALJ did not explain his reasoning for finding Ramos' weight, either alone or in combination with other impairments, was not severe enough to meet or equal a listing. Here, the Plaintiff's weight, in combination with his club feet, significantly limits the Plaintiff's ability to stand and walk and may well meet or equal Listing 1.03.(Doc. 15, p. 19).
In response, the Commissioner argues that the ALJ gave “careful and thorough consideration of Plaintiff's obesity throughout the sequential evaluation process.” (Doc. 18, p. 34). We agree with the Commissioner.
In his argument, Plaintiff relies on Ramos v. Kijakazi. In Ramos, the District Court remanded a social security case to the Commissioner for further proceedings because the ALJ identified obesity at step two, then made only one passing reference to obesity at step three indicating that obesity was considered in the RFC pursuant to SSR 19-2p. No explanation, however, was provided as to how it was evaluated. Unlike in Ramos, the ALJ in this case thoroughly evaluated obesity, and explained it was considered as a condition that contributed to Plaintiff's standing and walking limitations. We find that this case is distinguishable from Ramos, and that remand is not required because the ALJ considered and analyzed Plaintiff's obesity in her decision.
Ramos v. Kijakazi, 2022 WL 3021375, at *5-6.
F. Remand is Not Appropriate Under Sentence Six of 42 U.S.C. § 405(g)
Plaintiff submitted new evidence to the Appeals Council that was not available to the ALJ when the ALJ's decision was issued. (Admin. Tr. 25-75; Doc. 12-2, pp. 26-76). When it denied review, the Appeals Council addressed that evidence as follows:
You submitted medical records from Chambersburg Hospital dated February 27, 2019 to March 5, 2019 (2 pages). This evidence is not new because it is a copy of Exhibit 4F, pages 7 and 8. We did not exhibit this evidence.
You also submitted other medical records from Chambersburg Hospital dated February 27, 2019 to September 9, 2020 (10 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.
You submitted medical records from Chambersburg Hospital dated March 13, 2021 (10 pages) and from Roxbury Treatment Center dated March 13, 2021 to March 23, 2021 (29 pages). The Administrative Law Judge decided your case through February 23, 2021. This additional evidence does not relate to the period at issue. Therefore it does not
affect the decision about whether you were disabled beginning on or before February 23, 2021.
If you want us to consider whether you were disabled after February 23, 2021, you need to apply again.(Admin. Tr. 16; Doc. 12-2, p. 17).
In the fact section of his brief, Plaintiff noted that on March 13, 2021, Plaintiff presented to Chambersburg Hospital with suicidal ideation. (Doc. 15, p. 13). Pursuant to the relevant treatment record, also submitted to the Appeals Council, Plaintiff presented:
To the ED with chief complaint of suicidal thoughts. Patient has a history of bipolar disorder. Says he had a[n] outburst last night. He did not become physical but he was very angry and was concerned it may become physical. Described work-related issues as a provoking factor. Says that he has calmed down at this point, however he is now feeling depressed and suicidal. Denies alcohol or drug use today. Denies any physical complaints right now. No other modifying or provoking factors. No other concerns.(Admin. Tr. 68; Doc. 12-2, p. 69). Plaintiff signed himself into the hospital via 201 form. (Admin. Tr. 74; Doc. 12-2, p. 75). He was admitted at Roxbury Treatment Center. Id. Plaintiff summarized that:
The Plaintiff was again an inpatient at Roxbury Treatment Center in March 2021 (Tr. Pg. 25). Dr. Kaleem diagnosed major depressive disorder, recurrent, unspecified, unspecified anxiety disorder, unspecified bipolar and related disorder, rule out OCD, a history of ADHD and obesity with severe stressors (Tr. Pg. 25). On March 17, 2021, Dr. Kaleem felt that discharge would place the Plaintiff at a foreseeable risk (Tr. Pg. 27). The Plaintiff was isolating in his room (Tr.
Pg. 29) and remained anxious and frustrated (Tr. Pg. 633). Continued inpatient treatment was warranted as of March 22, 2021 (Tr. Pg. 35). The Plaintiff again presented to Chambersburg Hospital on March 13, 2021 with suicidal ideation. He related that he had an outburst the night before over work issues and had calmed down but was now depressed and suicidal (Tr. Pg. 68).(Doc. 15, p. 13).
Plaintiff argues:
The Plaintiff submitted evidence after the decision showing that he was admitted as an inpatient at Roxbury, a mental health treatment center, on March 16, 2021, three weeks after the decision was issued. This evidence is new because it was not generated by the time the decision was issued nor could the Plaintiff have anticipated he would be hospitalized. The evidence is material because it shows the Plaintiff continued to be unable to adapt and manage his depression and anxiety. The Plaintiff asserts there is a reasonable possibility that the ALJ would have reached a different conclusion had she credited this evidence. “The Court may...at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding[.]” Milliron v. Kijakazi, [1:21-CV-663, 2022 WL 705878 (M.D. Pa. Feb. 14, 2022) report and recommendation adopted 2022 WL 686621 (M.D. Pa. Mar. 8, 2022)], citing 42 U.S.C. §405(g).(Doc. 15, pp. 20-21). We construe this as an argument requesting remand under sentence six of 42 U.S.C. § 405(g) for consideration of the 29 pages of Roxbury treatment records Plaintiff submitted to the Appeals Council. (Admin. Tr. 25-53; Doc. 12-2, pp. 26-54).
In response, the Commissioner argues that remand under sentence six of 42 U.S.C. § 405(g) is not required because this evidence does not relate to the period for which benefits was denied (November 15, 2018, through February 23, 2021). (Doc. 18, pp. 41-42).
To be found material, newly presented evidence must not concern “the subsequent deterioration of a previously non-disabling condition.” In his argument, Plaintiff cites to one case, Milliron v. Kijakazi. Milliron, however, involves a claimant who suffered injuries following a severe car accident. The administrative record in Milliron was confined almost exclusively to the claimant's back injuries. The decision did, however, make a passing reference to the claimant's history of headaches without any further neurological or psychological assessment. After the ALJ hearing, a new medical source issued a report in which she assessed that the initial accident in 2016 “triggered a series of previously unidentified but severe neurological and emotional impairments for the plaintiff including concussion, PTSD, sleep disorders, attention deficit disorders, and cognitive communication disorders.”
Szubak, 745 F.2d at 833.
Milliron, No. 1:21-CV-663, 2022 WL 705878 (M.D. Pa. Feb. 14, 2022).
Id. at *2.
In this case, the “new” records were generated two months after Plaintiff's administrative hearing, and eighteen days after the ALJ issued his decision. Unlike Milliron, which involved a report establishing that a series of previously unidentified diagnoses existed years before the ALJ issued his decision, the records here involve an exacerbation of Plaintiff's mental health symptoms triggered by an “anger outburst.” The record before the ALJ included evidence that Plaintiff reported symptoms of depression, suicidal ideation, and one period of inpatient hospitalization. Plaintiff does not explain in his brief how this post-decision exacerbation of symptoms already well-documented in the record before the ALJ relates to the relevant period in this case or would be likely to change the outcome in this case. We find that remand is not appropriate under sentence six of 42 U.S.C. § 405(g) because Plaintiff has not demonstrated that this evidence is material to the period of time under review.
Accordingly, we are not persuaded that remand is required for further consideration of this evidence.
G. Whether Substantial Evidence Supports the ALJ's Symptom Evaluation
The ALJ provided the following summary of Plaintiff's statements about his panic attacks and foot pain:
He testified that although he is supposed to work seven days a week delivering papers, he is not always able to do so due to panic attacks. He testified that when this happens, his fiancee has to take over his route and she has to do so at least 3 to 4 times a week. This job involves dropping bundles of newspapers at stores and takes approximately 3.5 hours. The claimant testified that he overthinks things. The claimant testified that his paper route job did not require him to interact with people too much other than interacting with the store clerk. He testified that he may have a panic attack if the papers are delivered to the stores late and he has to interact with the store clerk regarding this.
The claimant testified regarding panic attacks and that since 2018, he has had one to two panic attacks a day. The claimant testified that he received treatment for his panic attacks and that he has had a trauma therapist since 2019. Additionally, the claimant testified that he receives psychiatric care. The claimant testified regarding suicidal ideation. The claimant testified that some days he cannot do chores due to panic attacks and that some days, his mind goes so fast, he cannot make sense of it. The claimant testified that he can only stand for approximately four hours before he has problems with his feet. The claimant testified that he has left clubfoot and he has had complete fusion of joints on his right foot. The claimant's attorney asked the claimant about the consultative examination where the examiner indicated the claimant could only sit for four hours and stand for three hours. Claimant testified that the sitting limitations were more due to his mental health issues than physical issues.(Admin. Tr. 85; Doc. 12-2, pp. 86). This summary is consistent with Plaintiff's hearing testimony. (Admin. Tr. 118-131; Doc. 12-2, pp. 119-132).
At the first step of her symptom evaluation, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms and limitations. (Admin. Tr. 85; Doc. 12-2, p. 86).
At the second step of her symptom evaluation, the ALJ found that Plaintiff's statements about the intensity, persistence and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. Id. In doing so, the ALJ found that Plaintiff would be able to perform simple, routine tasks and tolerate occasional (2 hours per day or less) interaction despite his panic attacks. The ALJ also found that, despite Plaintiff's testimony about the limiting effects of his foot pain (walking no more than 2 hours per day, standing no more than 3 hours per day and sitting no more than four hours per day), he could stand and/or walk for up to four hours per day, and sit for up to six hours per day. The ALJ summarized the evidence relevant to Plaintiff's treatment history, the effectiveness of various treatments, and Plaintiff's daily activities. The ALJ also discussed each medical opinion, and explained why each opinion was found persuasive or not.
In the last section of his brief, titled “the ALJ erred in finding Plaintiff's statements were not consistent with the evidence,” Plaintiff argues:
The Plaintiff explained his panic attacks and how they limited his functioning. He is unable to perform the paper delivery job on a regular and continuing basis because his panic attacks cause him to constantly go back and check his work to confirm that it was done properly. He also is unable to leave his house at times because of debilitating panic. The Plaintiff cannot be around large crowds and even isolates himself from his own family at times. Plaintiff's difficulty being around people is well illustrated by his carrying a hammer with him and closely observing people's hands to make sure they don't have something that could hurt him....Once he has submitted sufficient evidence to support
a claim of disability, the ALJ may not dismiss the testimony simply as not credible without pointing to contrary medical evidence. Williams v. Sullivan, 970 F.2d 1178, 1184-5 (3d Cir. 1992). Plaintiff asserts that the totality of the medical evidence and testimony suggest far greater limitations than those found by the ALJ.(Doc. 15, pp. 21-22).
Plaintiff's reference to the Williams case refers to the following passage:
The Appeals Council also rejected Williams' claim of mental impairment because it found his evidence “not credible.” Once a claimant has submitted sufficient evidence to support his or her claim of disability, the Appeals Council may not base its decision upon mere disbelief of the claimant's evidence. Instead, the Secretary must present evidence to refute the claim. See Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981) (where a claimant's testimony is reasonably supported by medical evidence, the finder of fact may not discount the testimony without contrary medical evidence).
Williams, 970 F.2d at 1184.
In Williams, however, the Third Circuit ultimately determined that the claimant did not present sufficient evidence to support his claim that he had an intellectual disability that met Listing 12.05.
Unlike in Williams, where the Court of Appeals upheld a decision denying benefits, the administrative decision was reversed and remanded in a case cited in that opinion, Smith v. Califano. In Smith, the claimant attested to debilitating pain caused by a chronic ulcer condition. There were two relevant medical opinions, one was consistent with a finding of total disability due to the ulcer condition, and the second opinion did not discuss the ulcer condition and instead “suggested contacting the surgeon who had operated.” The ALJ found that the claimant's allegations of debilitating pain were not credible based on the medical opinion that did not address the ulcer condition. On appeal to the district court, the ALJ's decision was affirmed. The Third Circuit concluded, however, that the claimant's complaints of pain due to the ulcer were unrebutted and should have been credited.
Smith, 637 F.2d at 969.
Id. at 970.
Id. at 972.
In this case, Plaintiff was found to have medically determinable impairments that caused both his foot pain and his panic attacks. Plaintiff alleged that these impairments made it impossible for him to work. His statements, however, were not unrebutted. The ALJ acknowledged both of these symptoms and Plaintiff's allegations, and did cite to evidence that is inconsistent with Plaintiff's statements about the intensity and persistence of those symptoms. Namely opinions by two medical sources (who considered Plaintiff's club foot impairment and his reports of pain) that Plaintiff could stand and/or walk up to four hours. The ALJ also noted that there were two medical sources that assessed Plaintiff had no social limitations. She concluded, based on Plaintiff's testimony that he had at least some social limitation. We find substantial evidence supports this conclusion.
We also note that during the administrative hearing Plaintiff initially testified that he could stand for four hours without discomfort. (Admin. Tr. 127-128; Doc. 12-2, pp. 128-128). However, when he was informed of Dr. Kneifati found Plaintiff could stand for only three hours, and walk for two hours, Plaintiff responded that it depended on the day, and that “it's pretty accurate to say three hours.” Id.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The final decision of the Commissioner be AFFIRMED.
(2) Final judgment be issued in favor of the Commissioner.
(3) The Clerk of Court be DIRECTED to 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.