Opinion
Civil Action 4:21-CV-1882
03-01-2023
ASHLEY KOZLOWSKI, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration Defendant
(BRANN, C.J.)
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge
I. INTRODUCTION
Ashley Kozlowski (“Plaintiff”), 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 her 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. For the reasons explained herein, it is RECOMMENDED that:
(1) The final decision of the Commissioner be AFFIRMED;
(2) Final judgment be issued in favor of the Commissioner; and
(3) The Clerk of Court be directed to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
On January 17, 2020, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 16; Doc. 12-2, p. 17). In this application, Plaintiff alleged she became disabled on December 31, 2019, when she was forty-four years old, due to the following conditions: congenital birth defect (hands), Hashimoto's disease, fibromyalgia, myofascial pain syndrome, degenerative disc disease, degenerative joint disease, hypothyroidism, osteoarthritis, chronic fatigue syndrome, and generalized anxiety. (Admin. Tr. 192; Doc. 12-6, p. 6). Plaintiff alleges that the combination of these conditions affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and use her hands. (Admin. Tr. 219; Doc. 12-6, p. 33). She also alleges her conditions affect her memory. Id. Plaintiff completed high school and two years of college. (Admin. Tr. 193; Doc. 12-6, p. 7). Before the onset of her symptoms, Plaintiff worked as an administrative assistant. (Admin. Tr. 29; Doc. 12-2, p. 30).
On June 25, 2020, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 16; Doc. 12-2, p. 17). On November 23, 2020, Plaintiff's application was denied on reconsideration. Id. On December 15, 2020, Plaintiff requested an administrative hearing. Id.
On April 1, 2021, Plaintiff, assisted by counsel, appeared and testified during a telephone hearing before Administrative Law Judge Randy Riley (the “ALJ”). (Admin. Tr. 16; Doc. 12-2, p. 17). On April 23, 2021, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 30; Doc. 12-2, p. 31). On June 22, 2021, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) review the ALJ's decision. (Admin. Tr. 166; Doc. 12-4, p. 65).
On September 2, 2021, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 12-2, p. 2).
On November 4, 2021, Plaintiff filed a complaint in the district court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying her application is not supported by substantial evidence, and improperly applies the law. (Doc. 1, ¶ 13). As relief, Plaintiff requests that the court reverse the Commissioner's decision and award benefits, or in the alternative remand this matter for a new administrative hearing. (Doc. 1, ¶ 14).
On January 12, 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, ¶ 17). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 13), the Commissioner's Brief (Doc. 16), and Plaintiff's Reply (Doc. 18) 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.
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 the findings of the final decision-maker are supported by substantial evidence in the record. 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 evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. 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 the court must scrutinize the record as a whole.”
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. Maritime Comm'n, 383 U.S. 607, 620 (1966).
Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
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).
In practice, this is a twofold task. First, the court determines whether the final decision is supported by substantial evidence. To accomplish this task, the court must decide not only whether “more than a scintilla” of evidence supports the ALJ's findings, but also whether those 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).
Second, the court must ascertain whether the ALJ's decision meets the burden of articulation the courts demand to enable judicial review. As the 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 The Impact of Obesity on RFC
In 2019, the Social Security Administration issued a new administrative ruling to address how obesity is evaluated. This ruling addresses how obesity is diagnosed, and explains how to evaluate this condition at each step of the sequential evaluation process. The ruling explains that:
We must consider the limiting effects of obesity when assessing a person's RFC. RFC is the most an adult can do despite his or her limitation(s). As with any other impairment, we will explain how we reached our conclusion on whether obesity causes any limitations.
A person may have limitations in any of the exertional functions, which are sitting, standing, walking, lifting, carrying, pushing, and pulling. A person may have limitations in the nonexertional functions of climbing, balancing, stooping, kneeling, crouching, and crawling. Obesity increases stress on weight-bearing joints and may contribute to limitation of the range of motion of the skeletal spine and extremities. Obesity may also affect a person's ability to manipulate objects, if there is adipose (fatty) tissue in the hands and fingers, or the ability to tolerate extreme heat, humidity, or hazards.
We assess the RFC to show the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment. People with an MDI . . . of obesity may have limitations in the ability to sustain a function over time. In cases involving obesity, fatigue may affect the person's physical and mental ability to sustain work activity. This may be particularly true in cases involving obesity and sleep apnea.
The combined effects of obesity with another impairment(s) may be greater than the effects of each of the impairments considered separately. For example, someone who has obesity and arthritis affecting a weight-bearing joint may have more pain and functional limitations than the person would have due to the arthritis alone. We consider all work-related physical and mental limitations, whether due to a person's obesity, other impairment(s), or combination of impairments.
SSR 19-2p, 2019 WL 2374244, at *4.
D. Guidelines for the ALJ's Symptom-Evaluation
In this context, “symptoms” are defined as the claimant's “own description of [his or her] physical or mental impairment.” 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.
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.
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 issues in her statement of errors:
(1) “Substantial evidence does not support the ALJ's RFC assessment.” (Doc. 13, p. 1).
(2) “The ALJ's multiple errors with symptom evaluation compel reversal.” Id.
(3) “The appointment of Andrew Saul as a single Commissioner of SSA who is removable only for cause and serves a longer term than that of the president violates separation of powers. Accordingly, the decision in this case, by an ALJ and Appeals Council Judges who derived their authority from Mr. Saul, is constitutionally defective.” Id.
Based on the issues raised in the argument section of Plaintiff's brief, however, we construe that Plaintiff raises the following issues:
(1) The ALJ's expression of the RFC assessment in terms of the agency exertional levels does not comport with SSR 96-8p;
(2) The ALJ failed to adequately explain how Plaintiff's obesity was considered as required under SSR 19-2p;
(3) Substantial evidence does not support the ALJ's determination that Plaintiff's ability to care for her own personal needs, prepare meals, and perform housework, care for her 12-year old child, and care for family pets are inconsistent with her symptoms;
(4) The ALJ did not adequately explain how the nature of Plaintiff's treatment conflicted with her symptoms; and
(5) The ALJ did not have authority to issue a decision in this case because he derived his authority from a Commissioner whose removal was restricted by an unconstitutional limitation.
A. The ALJ's Decision Denying Plaintiff's Application
In his April 2021 decision, the ALJ found that Plaintiff meets the insured status requirement of Title II of the Social Security Act through March 31, 2025. (Admin. Tr. 18; Doc. 12-2, p. 19). The ALJ concluded that Plaintiff was not disabled at step four of the sequential evaluation process because she retained the functional capacity to engage in her past relevant work as she actually performed it, and as the job is customarily performed. The ALJ also found, in the alternative, that Plaintiff would be found ‘not disabled' at step five because she could engage in other work.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between December 31, 2019 (Plaintiff's alleged onset date), and April 23, 2021 (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 18; Doc. 12-2, p. 19). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: degenerative disc disease of the cervical and lumbar spine; degenerative joint disease of right shoulder and bilateral hips; fibromyalgia; Hashimoto's disease; obstructive sleep apnea; hypertension; obesity; anxiety disorder; posttraumatic stress disorder; and depressive disorder. Id.
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. (Admin. Tr. 19; Doc. 12-2, p. 20).
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 that:
she may frequently balance, kneel, crouch, crawl, and use her bilateral hands for fine and gross manipulation and occasionally stoop and climb ramps or stairs, but must never climb ladders, ropes, or scaffolds and must avoid concentrated exposure to hazards. The claimant retains the mental capacity to work in a job environment that requires no interaction with the public.(Admin. Tr. 22; Doc. 12-2, p. 23).
At step four, the ALJ found that, during the relevant period, Plaintiff could engage in her past relevant work as an administrative assistant (DOT #169.167-010) as she actually performed it and as the job is customarily performed in the national economy. (Admin. Tr. 29; Doc. 12-2, p. 30).
In the alternative, the ALJ concluded that Plaintiff would also be found ‘not disabled' at step five because, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 29-30; Doc. 12-2, pp. 30-31). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: mail clerk, non-government (DOT #209.687-026); office helper (DOT #239.567-010); and table worker (DOT #739.687-182). Id.
B. Even If the ALJ Improperly Expressed Plaintiff's RFC at Step Four, This Error Is Harmless
In his decision, the ALJ found that Plaintiff could perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b). The regulations explain that:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (emphasis added).
As for the precise amount of sitting, standing, and walking required for “light” work, SSR 83-10 explains:
“Frequent” means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time.
SSR 83-10, 1983 WL 31251, at *6 (emphasis added).
Plaintiff argues that substantial evidence does not support the ALJ's decision at steps four and five because the ALJ initially expressed Plaintiff's RFC assessment in terms of the “light” exertional category, in violation of SSR 96-8p. (Doc. 13, pp. 5-6). This ruling provides, in relevant part that:
RFC is an issue only at steps 4 and 5 of the sequential evaluation process. The following are issues regarding the RFC assessment and its use at each of these steps.
RFC and exertional levels of work. The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities. At step 4 of the sequential evaluation process, the RFC must not be expressed initially in terms of the exertional categories of “sedentary,” “light,” “medium,” “heavy,” and “very heavy” work because the first consideration at this step is whether the individual can do past relevant work as he or she actually performed it.
RFC may be expressed in terms of an exertional category, such as light, if it becomes necessary to assess whether an individual is able to do his
or her past relevant work as it is generally performed in the national economy. However, without the initial function-by-function assessment of the individual's physical and mental capacities, it may not be possible to determine whether the individual is able to do past relevant work as it is generally performed in the national economy because particular occupations may not require all of the exertional and nonexertional demands necessary to do the full range of work at a given exertional level.
At step 5 of the sequential evaluation process, RFC must be expressed in terms of, or related to, the exertional categories when the adjudicator determines whether there is other work the individual can do. However, in order for an individual to do a full range of work at a given exertional level, such as sedentary, the individual must be able to perform substantially all of the exertional and nonexertional functions required in work at that level. Therefore, it is necessary to assess the individual[']s capacity to perform each of these functions in order to decide which exertional level is appropriate and whether the individual is capable of doing the full range of work contemplated by the exertional level.
SSR 96-8p, 1996 WL 374184, at *3.
As an initial matter, we find that the expression of Plaintiff's RFC in this case was sufficient. However, even assuming the ALJ's expression was insufficient for the purposes of the step four conclusion that Plaintiff could perform her past relevant work as actually performed, it is adequate to support a conclusion that Plaintiff can engage in her past relevant work as it is customarily performed and is adequate to support the ALJ's step five findings that Plaintiff could engage in other work. SSR 96-8p permits the expression of RFC in exertional categories when evaluating a claimant's ability to engage in past relevant work as customarily performed in the national economy, and requires that an RFC be expressed in terms of or related to the exertional categories at step five. Thus, even assuming that the step four conclusion that Plaintiff can engage in her past relevant work as actually performed is defective, the ALJ's conclusion that Plaintiff can engage in her past relevant work as customarily performed and can engage in “other work” complies with SSR 968p.
C. The ALJ's Failure To Discuss Whether Any Additional Limitations Resulted From Plaintiff's Obesity Does Not Require Remand
In the portion of his decision explaining the rationale for the RFC assessment, the ALJ wrote:
The record establishes the claimant has a history of obesity. Treatment records between November 2019 and March 2021 indicate the claimant weighed between 255 pounds and 270 pounds (Exhibit 9F; 26F). In March 2021, the claimant's height was 5 feet 6 inches and she weighed 255 pounds (Exhibit 26F at 3). Given the claimant['s] height and weight, her body mass index was a 41.15, which is indicative of morbid obesity. The undersigned has considered the impact of the claimant's weight on her other underlying conditions.(Admin. Tr. 26; Doc. 12-2, p. 27).
Plaintiff argues that the ALJ did not address Plaintiff's morbid obesity when he formulated the RFC in this case as required in SSR 19-2p. (Doc. 13, pp. 6-7). She asserts that “[t]he ALJ did not adequately explain how []he considered Ms. Kozlowski's obesity in combination with her degenerative disc disease of the cervical and lumbar spine and degenerative joint disease of bilateral hips.” (Doc. 13, p. 7). Plaintiff does not cite to any medical or other evidence in the administrative record to support her argument.
In response, the Commissioner argues that the ALJ's analysis complies with SSR 19-2p because he considered the impact of Plaintiff's obesity. (Doc. 16, p. 17).
When a plaintiff argues remand is required because an ALJ's analysis regarding obesity is inadequate, that plaintiff must specifically show how her obesity, in combination with her other impairments, limited her ability to a degree that is inconsistent with the RFC assessment. Plaintiff has not identified any particular aspect of her ability to function that limits her to a degree inconsistent with the ALJ's RFC assessment, and has cited to no evidence that supports any additional degree of limitation. Accordingly, we are not persuaded that remand is required for further evaluation of Plaintiff's obesity in this case.
See e.g., Barnes v. Kijakazi, Civ. No. 5:22-167-DCR, 2022 WL 17406379, at *5 (E.D. Ky. Dec. 2, 2022) (quoting Montagna v. Kijakazi, No. 20-1227-TMP, 2022 WL 565601, at *3 (W.D. Tenn. Feb. 24, 2022) and Lumpkin v. Comm'r of Soc. Sec., No. 1:20-CV-1849-DAP, 2021 WL 5828692, at *7 (N.D. Ohio Oct. 6, 2021)).
D. Substantial Evidence Supports the ALJ's Symptom Evaluation
In his decision the ALJ provided the following summary of Plaintiff's description of her impairments and limitations:
The claimant asserts that her conditions limit her ability to work. She asserts that her conditions cause[] her to experience pain, fatigue, and irritability (Exhibit 4E). She also asserts that her conditions limit her
ability to use her hands for tasks, such as opening jars and managing money (Exhibit 4E). In addition, she asserts that her conditions impact her ability to dress and sleep (Exhibit 4E). The claimant indicates that her conditions limit her ability to go outside (Exhibit 4E). She also indicates that her conditions limit her ability to lift, squat, bend, stand, reach, walk more than one mile, sit, kneel, climb stairs, use her hands, and remember things (Exhibit 4E). In addition, the claimant indicates that she can only pay attention for a few minutes on bad days and has difficulty following written and spoken instructions (Exhibit 4E). The claimant notes that she has difficulty handling stress and changes in routine (Exhibit 4E). She also notes she takes medication to manage her conditions, which cause side effects of hot flashes and fatigue (Exhibit 4E).(Admin. Tr. 22-23; Doc. 12-2, pp. 23-24).
At the first step of his symptom evaluation, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. (Admin. Tr. 23; Doc. 12-2, p. 24). No party disputes this finding.
If Plaintiff's testimony about the intensity of her pain and fatigue were credited, she would likely be unable to do even a limited range of sedentary work. At the second step of his symptom evaluation, however, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. The ALJ then provided a summary of the objective evidence and other evidence, and explained:
While the claimant asserts that her conditions prevent her from engaging in substantial gainful activity, the record establishes the claimant's conditions are not as debilitating as alleged. With regard to the claimant's hashimoto's disease, hypertension, and obstructive sleep
apnea, treatment records generally indicate the claimant's conditions were stable during the relevant period and that the claimant was not experiencing any significant symptoms related to her conditions. With regard to the claimant's mental health conditions, treatment records also generally indicate that the claimant's conditions were treated conservatively with the use of medication management and therapy. Notably, despite the presence of mood fluctuations and ongoing symptoms during the relevant period, the claimant's mental status examinations generally noted normal findings including normal orientation, memory, attention, concentration, insight, and judgment. While the claimant's physical conditions caused the claimant to experience diffuse pain symptoms that were chronic in nature, treatment records generally indicate that she generally maintained her strength and sensation and experienced improvement in her overall condition during the relevant period. At the end of the relevant period, the claimant maintained 3+ to 4- out of 5 strength throughout her extremities, which is suggestive of functional strength.
Similarly, the claimant's activities of daily living suggest that her conditions are not as debilitating as alleged. The claimant is able to care for her personal needs and grooming, including dressing, bathing, caring for her hair, shaving, feeding herself, and using the bathroom (Exhibit 4E). She is also able to assist in providing care for her twelveyear-old child and family pets (Exhibit 4E). The claimant can prepare complete meals on a daily basis and perform housework such as loading the dishwasher, dusting, and vacuuming (Exhibit 4E). The claimant can go outside alone on a daily basis, operate a motor vehicle, and shop in stores (Exhibit 4E). Treatment records during the relevant period indicate the claimant was able to spend time with family and friends, as well as attend events such as a family baby shower.(Admin. Tr. 25-26; Doc. 12-2, pp. 27-28). The ALJ also considered several medical opinions. With respect to Plaintiff's physical impairments the record includes opinions from: state agency medical consultant David Paul Clark, M.D. (limiting Plaintiff to a range of light work) (Admin. Tr. 90-95; Doc. 12-3, pp. 31-36); state agency medical consultant Ruth Arnold, D.O. (limiting Plaintiff to a range of light work) (Admin. Tr. 70-73; Doc. 12-3, pp. 11-14); consultative examiner Daniel Chege, N.P. (limiting Plaintiff to a range of light work) (Admin. Tr. 479- 491; Doc. 12-7, pp. 193-205); and examining source Elizabeth Smith, MPT (limiting Plaintiff to “light to medium” but also finding she could not sit, stand or walk for more than two hours per day) (Admin. Tr. 655-665; Doc. 12-7, pp. 369-379). With respect to Plaintiff's mental impairments, the record includes opinions from: state agency psychological consultant Richard Small, Ph.D. (assessing that Plaintiff could meet the basic mental demands of simple, routine tasks on a sustained basis) (Admin. Tr. 68, 73-74; Doc. 12-2, pp. 9, 14-15); state agency psychological consultant Erin Urbanowicz, Psy.D. (assessing that Plaintiff could meet the basic mental demands of simple, routine tasks on a sustained basis) (Admin. Tr. 86-88, 95-98; Doc. 12-3, pp. 27-29, 36-39); and consultative examiner Kathleen Ledermann, Psy.D. (assessing that Plaintiff should avoid crowds) (Admin. Tr. 465-472; Doc. 12-7, pp. 179-186).
Plaintiff argues that substantial evidence does not support the ALJ's evaluation of Plaintiff's daily activities because Plaintiff's statements about her ability to care for personal needs, prepare meals, do housework, and care for her child and pets support her statements about the intensity of her symptoms. Plaintiff also argues that the ALJ's evaluation of the nature of Plaintiff's mental health treatment does not comport with SSR 16-3p.
1. The ALJ's Evaluation of Plaintiff's Daily Activities Does Not Require Remand
Plaintiff argues that her ability to maintain personal hygiene, prepare meals, perform very basic household tasks, and care for her twelve year old child and the family pets, is not inconsistent with her “assertion that she cannot perform sustained work activities, 8 hours a day, 5 days a week.” (Doc. 13, p. 9). Plaintiff also argues that the ability to care for a child, without more, does not support a conclusion that she can work. She argues that the skills of caring for a child in her own home differ from the stress of a work setting, and that caring for a child allows for flexibility and rest breaks not customarily provided in the workplace. (Doc. 13, pp. 11-12).
In a function report, Plaintiff indicated that she had little difficulty performing “personal care” tasks. (Admin. Tr. 215; Doc. 12-6, p. 29). During her administrative hearing, Plaintiff testified that she could dress and shower herself. (Admin. Tr. 40; Doc. 12-2, p. 41). Plaintiff reported that she prepares her own meals. (Admin. Tr. 216; Doc. 12-6, p. 30). She typically fixes herself a sandwich for lunch, and fixes dinner for her family in the evenings unless she is having a bad day due to illness. Id. During her administrative hearing Plaintiff testified that she could cook. (Admin. Tr. 40; Doc. 12-2, p. 41). Plaintiff reported that she is able to “dust, vacuum if no one else can and it really needs done.” (Admin. Tr. 216; Doc. 12-6, p. 30). During her administrative hearing, Plaintiff testified that she loads the dishwasher and needs help to vacuum. (Admin. Tr. 41; Doc. 12-2, p. 42). Plaintiff reported that she takes care of her twelve-year-old child, and helps care for several family pets (feeding them and letting dogs out). (Admin. Tr. 215; Doc. 126, p. 29). Plaintiff also reported that her daughter does most of the pet care. Id.
In support of this argument, Plaintiff relies on an excerpt from Rieder v. Apfel. In Rieder, the Court found that the ALJ “primarily” based his conclusion that the claimant could perform “light” work with some restrictions on the fact that the claimant could shop for groceries, clean her house, do laundry, wash the dishes, cook, drive her car, play cards, play billiards, watch television, listen to music, go for walks, visit relatives, and read. Unlike in Rieder, where the ALJ “relied heavily” on the claimant's activities, the ALJ in this case did not. In fact, that ALJ articulated multiple reasons for finding that Plaintiff's symptoms were not as severe as alleged, including that: Plaintiff's medication regimen of Tylenol and ibuprofen was working for her back pain; Plaintiff had no range of motion deficits and no atrophy; Plaintiff walked normally; Plaintiff maintained full strength and sensation despite complaints of ongoing numbness and tingling; Plaintiff walked without an assistive device; and Plaintiff had intact memory and an intact ability to maintain concentration and attention. (Admin. Tr. 23-26; Doc. 12-2, pp. 24-27).
Rieder v. Apfel, 115 F.Supp.2d 496, 504-505 (M.D. Pa. 2000).
Id. at 504.
Accordingly, we are not persuaded that remand is required for further consideration of Plaintiff's daily activities.
2. The ALJ's Consideration of Plaintiff's Mental Health Treatment is Adequately Explained
The ALJ found that Plaintiff had the medically determinable severe impairments of anxiety disorder, depressive disorder, and post-traumatic stress disorder. When evaluating Plaintiff's mental health conditions during his symptom evaluation, the ALJ wrote:
With regard to the claimant's mental health conditions, treatment records also generally indicate that the claimant's conditions were treated conservatively with the use of medication management and therapy. Notably, despite the presence of mood fluctuations and ongoing symptoms during the relevant period, the claimant's mental status examinations generally noted normal findings including normal orientation, memory, attention, concentration, insight and judgment.(Admin. Tr. 26; Doc. 12-2, p. 27). The ALJ's decision also includes a thorough summary of Plaintiff's mental health history and treatment records. (Admin. Tr. 25; Doc. 12-2, p. 26).
Plaintiff argues that the ALJ “did not explain how conservative treatment led to his determination that [Plaintiff's] subjective allegations were not entirely consistent with evidence.” (Doc. 13, p. 13). She also argues, without citation to any legal authority, that an ALJ “may not reject a claimant's subjective allegations based on a claimant's receipt of conservative/routine treatment without first identifying what aggressive treatment was appropriate and available given a claimant's particular impairments and without first citing appropriate medical authority.” Id.
In response, the Commissioner argues that the ALJ appropriately considered Plaintiff's course of treatment during his symptom evaluation. (Doc. 16, pp. 19-20). She argues that “Plaintiff's assertion that the ALJ was required to articulate any ‘aggressive treatment appropriate and available' is erroneous and not required by either 20 C.F.R. § 404.1529 or SSR 16-3p.” Id.
The Commissioner is correct that the ALJ is required to consider the nature of a Plaintiff's treatment when evaluating symptoms. To the extent Plaintiff suggests that remand is required because the ALJ improperly characterized her mental health treatment as “conservative,” or failed to articulate the basis for his conclusion that Plaintiff's treatment history did not support more extensive limitations we are not persuaded. The ALJ thoroughly considered the care Plaintiff received, and the decision read as a whole is sufficient to allow judicial review. Accordingly, we are not persuaded that remand is required for further explanation of how Plaintiff's mental health treatment was considered during the ALJ's symptom evaluation.
E. There is No Causal Nexus Between the Decision Denying Plaintiff's Application and The Statutory Removal Provision
Relying on Seila Law LLC v. Consumer Fin. Prot. Bd., 140 S.Ct. 2183 (2020), Plaintiff argues that she was deprived of a constitutionally valid administrative adjudicatory process because the statutory removal protections afforded to Commissioner Saul under 42 U.S.C. § 902(a)(3) violated the constitutional separation of powers.
In Seila Law, the Supreme Court of the United States held that statutory removal protections afforded to the director of the Consumer Financial Protection Board (“CFPB”) violated the constitutional separation of powers by insulating its director from removal by the President. One year later, the Supreme Court applied Seila Law to a similar challenge concerning the statutory removal protections afforded to the director of the Federal Housing Finance Agency (“FHFA”) in Collins v. Yellen.
140 S.Ct. at 2192. Pursuant to 12 U.S.C. § 5491(c)(1), the CFBP Director was appointed to a term of five years and could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
141 S.Ct. 1761, 1783-84 (2021). Like the director in Seila Law, by statute the director of the FHFA was appointed to a term of five years and could only be removed for cause. 12 U.S.C. § 4512(b)(2).
Like the CFPB and the FHFA, the Social Security Administration also affords its Commissioner statutory removal protections. Applying the holdings of Seila Law and Collins, other courts have concluded that this statutory removal protection violates the constitutional separation of powers. Notably, post-Collins, other courts that have considered this issue in social security cases have held that it is not a basis for remand.
Stamm v. Kijakazi, 577 F.Supp.3d 358, 366 (M.D. Pa. Dec. 31, 2021).
Dengler v. Kijakazi, 2022 WL 17822442 (E.D. Pa. Dec. 20, 2022) (citing Andino v. Kijakazi, No. 21-2852, 2022 WL 1135010, at *5-7 (E.D. Pa. Apr. 18, 2022); Adams v. Kijakazi, No. 20-3591, 2022 WL 767806, at *9-11 (E.D. Pa. Apr. 18, 2022); High v. Kijakazi, No. 20-3528, 2022 WL 394750, at *6 (E.D. Pa. Feb. 9, 2022); Wicker v. Kijakazi, No. 20-4771, 2022 WL 267896, at *8-10 (E.D. Pa. Jan. 28, 2022); Mor v. Kijakazi, No. 21-1730, 2022 WL 73510 (D.N.J. Jan. 7, 2022); Crossley v. Kijakazi, No. 20-2298, 2021 WL 6197783, at *8 (M.D. Pa. Dec. 31, 2021); Shannon R. v. Comm'r of Soc. Sec., 572 F.Supp.3d 1028, 1037-39 (W.D. Wash. 2021); Alice T. v. Kijakazi, No. 8:21CV14, 2021 WL 5302141, at *18 (D. Neb. Nov. 15, 2021); Webb v. Kijakazi, No. 1:20CV714, 2021 WL 5206498, at *15 at n. 12 (M.D. N.C. Nov. 9, 2021) (Report and Recommendation); Lisa Y. v. Comm'r of Soc. Sec., 570 F.Supp.3d 993 (W.D. Wash. 2021); Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397, at *2-3 (W.D. N.C. Oct. 27, 2021); Tracey Ann. P. v. Kijakazi, No. 20CV1163-LAB(RBB), 2021 WL 4993021, at *18 (S.D. Cal. Oct. 27, 2021) (Report and Recommendation); Robles v. Comm'r of Soc. Sec., No. 220CV01069JDPSS, 2021 WL 4285170, at *4 n. 6 (E.D. Cal. Sept. 21, 2021); and Angelita O. v. Kijakazi, No. 1:20-CV-00034-AJB, 2021 WL 4146085, at *18 at n. 13 (N.D.Ga. Sept. 13, 2021)).
Turning to Plaintiff's arguments, she argues that remand is required because Commissioner Saul's authority was void as of President Biden's inauguration, and that because his authority was void the ALJ decision issued in this case is also void. To support this argument, Plaintiff relies on the fact that Saul was terminated only eighteen days after the Supreme Court issued its opinion in Collins. This argument is not persuasive.
In Collins, the Supreme Court held that a constitutionally defective removal provision does not invalidate an agency head's appointment, and by extension does not void a properly appointed agency head's actions. Instead, the relevant inquiry is whether the unconstitutional removal provision inflicted compensable harm. In the context of Social Security Appeals, this requires a plaintiff to demonstrate a causal nexus between the decision denying benefits and the unconstitutional removal provision. As Justice Thomas's concurring opinion in Collins clarified, a plaintiff must do more than point to a conflict between the removal statute and the constitution; he must show some action that was unlawful and harmful to him. In her concurrence, Justice Kagan observed that such a showing would be difficult to make in a social security case.
Collins, 141 S.Ct. at 1787.
Id.
Andino v. Kijakazi, No. 21-2852, 2022 WL 1135010, at *7 (E.D. Pa. Apr. 18, 2022).
Collins, 141 S.Ct. at 1790-91 (Thomas, J. concurring).
Id. at 1802 (“[G]iven the majority's remedial analysis I doubt the mass of SSA decision-which would not concern the President at all-would need to be undone ....When an agency decision would not capture a President's attention, his removal authority could not make a difference[.]”).
Plaintiff has not shown the required causal nexus. In the absence of any evidence that the President's supposed inability to remove Commissioner Saul without cause might have affected the ALJ's decision in this case, remand is not required.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(4) The final decision of the Commissioner be AFFIRMED;
(5) Final judgment be issued in favor of the Commissioner; and
(6) 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.