Opinion
Civil 1:21-CV-1680
07-06-2022
RECHELLE L. MEIER, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant
Mannion Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge.
I. Introduction
The Supreme Court has underscored for us the limited scope of our substantive review when considering Social Security appeals, 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).
Rechelle Meier filed an application for disability and disability insurance benefits, as well as supplemental security income under Titles II and XVI of the Social Security Act on January 29, 2019. A hearing was held before an Administrative Law Judge (“ALJ”), and the ALJ found that Meier was not disabled as of the onset date of disability of January 14, 2019 and denied her application for benefits.
Meier now appeals this decision, arguing that the ALJ's decision is not supported by substantial evidence. However, after a review of the record, and mindful of the fact that substantial evidence “means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'” Biestek, 139 S.Ct. at 1154, we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner denying this claim.
II. Statement of Facts and of the Case
Rechelle Meier filed for disability insurance benefits, alleging disability due to hypothyroidism, fibromyalgia, asthma, deteriorating joint disease, spinal issues, heart palpitations, and hypertension. (Tr. 271). She alleged an onset date of disability of January 14, 2019. (Id.) Meier had some college education and past work as a nurses' assistant. (Tr. 272).
With respect to Meier's physical impairments, the record shows a history of back and neck pain, as well as fibromyalgia. Of note, Meier was involved in two separate motor vehicle accidents-one in 2006 in which she fractured her pelvis, and one in 2011. (Tr. 881, 889). An CT scan of her brain and cervical spine after the 2011 accident were unremarkable for acute injury. (Tr. 889). Records from prior to the alleged onset date indicate that Meier was treating for fibromyalgia with Dr. Philip Benyo. (Tr. 506). At a September 21, 2018 visit, a physical examination revealed normal musculoskeletal findings. (Tr. 511). Dr. Benyo observed that Meier was stable on her medications and recommended that she diet and exercise for weight loss. (Id.)
While the ALJ found that Meier suffered from several severe mental impairments, the plaintiff relies only on the ALJ's assessment of her fibromyalgia in her appeal. Accordingly, we will limit our discussion to Meier's physical impairments.
Relevant to the alleged period of disability, treatment notes from a January 29, 2019 visit indicated that Meier was having more fibromyalgia pain, and that she was experiencing stiffness and soreness. (Tr. 501). On examination, Meier had diffuse tenderness in her upper and lower spine with diffuse spasms in her back and neck, but her gait was normal. (Tr. 503). An X-ray of Meier's cervical spine in February 2019 showed a normal examination, with no narrowing, malalignment, or significant degenerative findings. (Tr. 465). At this time, Meier began physical therapy at the Lehigh Valley Health Network. (Tr. 595). At her intake, it was noted that Meier had difficulty walking and with daily activities, and that she had started yoga and wanted to be able to do yoga with less pain. (Id.) She began aquatic therapy at this time. (Tr. 596).
In March of 2019, Dr. Benyo stated that Meier had persistent pain in her lower back, neck, and joints. (Tr. 545). Treatment notes indicated that Meier had stopped working due to her pain, but that her medication was somewhat helping to ease the pain. (Id.) It was also noted that Meier experienced increased pain after physical therapy and difficulty walking. (Id.) On examination, her neck had normal range of motion, and she had no cervical adenopathy. (Tr. 546). Dr. Benyo recommended that she continued physical therapy as tolerated. (Tr. 547). In April 2019, Meier reported increased pain at physical therapy and rated her pain a 7/10. (Tr. 580, 586). It was observed at this visit that Meier would progress from aquatic therapy to core strengthening therapy. (Tr. 582). At a follow up appointment with Dr. Benyo, it was noted that Meier was “feeling better with physical therapy.” (Tr. 557). Dr. Benyo further indicated that Meier used Vicodin to ease her pain but very sparingly. (Id.) A physical examination revealed normal range of motion in her neck, as well as some swelling and tenderness. (Tr. 558). It was again noted that Meier was stable on her medications, and she was to follow up with Dr. Benyo in one month. (Tr. 559).
In May of 2019, physical therapy notes indicate that Meier needed to be counseled on attending therapy more consistently, as she had missed eight appointments. (Tr. 835-37). At her next appointment, she reported that her pain was 8/10, but that she was working on her home program and felt that she had more motion since starting therapy. (Tr. 843). On May 16, 2019, it was noted that Meier's pain was a 9/10 after she had helped her friend with yardwork the day before her appointment. (Tr. 846). The therapist's assessment stated that Meier presented with subjective pain but no antalgic gait or difficulty with transfers or bed mobility. (Tr. 847). At a later visit in May, Meier stated that she was late to her appointment because she had a hard time getting up, but that she had plans to help clean a friend's house for four hours after her therapy session. (Tr. 849). It was noted that Meier did well during her session despite her feeling ill. (Tr. 850). Meier finished physical therapy on May 30, 2019, due to the fact that her goals were met to maximum potential. (Tr. 852). She was discharged with a home program. (Id.)
Meier saw Dr. Benyo in June of 2019 complaining of persistent pain, stiffness, and soreness. (Tr. 676). It was noted, however, that her medications eased her pain and made it tolerable. (Id.) On examination, she exhibited swelling and tenderness in her upper and lower spine, but her neck range of motion was normal. (Tr. 677). Dr. Benyo stated that Meier was stable on her medications. (Tr. 678). He also recommended diet and exercise for weight loss. (Id.) In July 2019, Meier complained of pain in her muscles and joints, and it was noted that she was using a CBD roll-on that helped ease her pain and her narcotic medication was used very sparingly. (Tr. 693). A review of her symptoms indicated that she had joint pain, joint stiffness, and muscle aches, but was negative for back pain and joint swelling. (Id.)
In August, Dr. Benyo again observed that a review of Meier's symptoms was negative for back pain and joint swelling, and that her musculoskeletal examination revealed no edema. (Tr. 705-06). At this same time in August 2019, Dr. Benyo completed a pre-employment physical examination report. (Tr. 936). On this form, Dr. Benyo circled “No” for arthritis, backache, back injury, disc disorder, and joint/tendon disorder. (Id.) Treatment notes from February of 2020 indicate that Meier was working part time as a nurse, although she was having a hard time and was tired. (Tr. 907). At this time, Dr. Benyo indicated that Meier had no edema but a review of her symptoms was positive for back pain, joint pain and stiffness, joint swelling, muscle aches, and neck pain. (Tr. 908).
At a visit in May 2020, Meier stated that she had been feeling well overall, although she felt tired at times. (Tr. 1153). It was noted that she had chronic pain but that her medications helped to alleviate it. (Id.) Dr. Benyo also stated that Meier had been working in a couple of difference places, and that her pain was increased while she was working. (Id.) A review of her symptoms was negative for back pain but positive for joint pain, stiffness, and swelling. (Tr. 1154). On examination, Meier had some swelling and tenderness in her upper and lower spine. (Id.)
In August of 2020, Meier followed up with Dr. Benyo for a medication refill and again indicated that she was feeling well, and that she had recently gone to the beach. (Tr. 1165). A review of her symptoms was negative for back pain and joint swelling, and a musculoskeletal examination revealed no edema. (Tr. 1165-66). Meier noted in September of 2020 that she was feeling well overall and needed clearance to return to work. (Tr. 1169). Dr. Benyo observed that she had recently taken a job and was trying to work more. (Id.)
It was against the backdrop of this equivocal medical opinion and clinical evidence that an ALJ conducted a hearing on Meier's disability application on December 2, 2020. (Tr. 37-70). Meier and a Vocational Expert both appeared and testified telephonically at this hearing. (Id.) Following this hearing, on January 12, 2021, the ALJ issued a decision denying Meier's application for disability benefits. (Tr. 12-36). In this decision, the ALJ first concluded that Meier met the insured stated requirements of the Act through September of 2023, but found that Meier had engaged in substantial gainful activity during the alleged period of disability. (Tr. 17). On this score, it was noted that Meier was working and earned in excess of the monthly substantial gainful activity limits from October of 2019 to March of 2020. (Id.) Nevertheless, affording deference to Meier, the ALJ continued with the five-step sequential analysis.
Thus, the ALJ then found at Step 2 of the sequential analysis which governs disability claims that Meier suffered from the following severe impairments: fibromyalgia, hypothyroidism, sciatica, asthma, major depressive disorder/depressive disorder, and generalized anxiety disorder. (Tr. 18). At Step 3, the ALJ concluded that these severe impairments did not meet or equal the severity of any listed impairments under the Commissioner's regulations. (Tr. 26). Of note, the ALJ did consider SSR 12-2p, which governs the consideration of fibromyalgia. (Tr. 20).
Between Steps 3 and 4, the ALJ then concluded that Meier:
[H]a[d] the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can have frequent use of foot controls with the bilateral lower extremities. The claimant could have frequent reaching, handling, fingering and feeling with the bilateral upper extremities. The claimant can have occasional balancing, stooping, kneeling, crouching, crawling and climbing on ramps and stairs, but never climbing on ladders, ropes or scaffolds. The claimant can have frequent operating of a motor vehicle. The claimant can have occasional exposure to atmospheric conditions, extreme cold, heat, wetness and humidity. The claimant can never have
exposure to vibration and hazards, such as unprotected heights and dangerous moving mechanical parts. The claimant is limited to understanding, remembering and applying simple instruction. The claimant is limited to frequent interaction with supervisors, coworkers and the public. The claimant is limited to performing simple, routine tasks, but not at a production rate pace, such as with assembly work. The claimant is limited to simple work-related decisions with occasional changes in the work setting.(Tr. 22-23).
In reaching this result, the ALJ considered the medical record as detailed above, as well as medical opinion evidence and Meier's reported symptoms. With respect to the medical opinion evidence, the ALJ considered the opinions of Dr. Chankun Chung, M.D., and Dr. Diane Fox, M.D., the state agency consultants. (Tr. 27). Dr. Chung opined that Meier could occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; she could stand, walk, and sit for 6 hours in an 8-hour workday; she could occasionally stoop and climb ramps, stairs, ladders, ropes, and scaffolds, and could frequently balance, kneel, crouch, and crawl; that she should avoid concentrated exposure to extreme cold, wetness, humidity, vibration, and fumes, odors, dusts, gases, and poor ventilation due to her asthma. (Tr. 81-83). Dr. Fox's opinion was consistent with Dr. Chung's opinion, in that it limited Meier to a range of light work with additional postural and environmental limitations. (Tr. 117-20).
The ALJ found these opinions persuasive because they were consistent with diagnostic testing which showed largely unremarkable findings. (Tr. 27). The ALJ reasoned that these opinions were well explained in terms of balancing the abnormal clinical findings with the many normal findings in the record and the level of treatment and care Meier received. (Id.) However, the ALJ afforded Meier the benefit of more restrictive limitations, particularly as it related to her upper and lower extremities in consideration of Meier's subjective complaints.
Having made these findings, the ALJ found that Meier could not perform her past work but concluded at Step 5 that there were a significant number of jobs in the national economy that Meier could perform, such as garment sorter, night cleaner, and marker. (Tr. 28-29). Accordingly, the ALJ found that Meier had not met the stringent standard prescribed for disability insurance benefits and denied her claim. (Tr. 29-30).
This appeal followed. On appeal, Meier challenges the ALJ's consideration of her fibromyalgia. Specifically, Meier takes issue with the fact that the ALJ did not explicitly consider whether her fibromyalgia met or medically equaled a listed impairment, and that the ALJ failed to consider her subjective symptoms in his evaluation of her disability claim. This case is fully briefed and is therefore ripe for resolution. For the reasons set forth below, under the deferential standard of review that applies here, we recommend that the court affirm the decision of the Commissioner.
III. Discussion
A. Substantial Evidence Review - the Role of this Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 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). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has recently underscored for us the limited scope of our 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, 139 S.Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The 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 ....”).
Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review, “we are mindful that we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather, our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, “this Court requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). 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 meaningful 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).
Thus, in practice, ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
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.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). The definition of a disability for a child age 18 or older is the same definition used to determine a disability for purposes of SSI or disability insurance benefits. See 42 U.S.C. § 402(d)(1)(B); 42 U.S.C. § 423(d).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that “[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: “There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where a well-supported medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living to fashion an RFC, courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006); Cummings, 129 F.Supp.3d at 214-15. In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, 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. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with the claimant's age, education, work, experience, and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks Governing Step 3 of This Sequential Analysis
This dichotomy between the Act's deferential standard of review and caselaw's requirement that ALJs sufficiently articulate their findings to permit meaningful judicial review is particularly acute at Step 3 of this disability evaluation process. At Step 3 of this sequential analysis, the ALJ is required to determine whether, singly or in combination, a claimant's ailments and impairments are so severe that they are per se disabling and entitle the claimant to benefits. As part of this Step 3 disability evaluation process, the ALJ must determine whether a claimant's alleged impairment is equivalent to a number of listed impairments, commonly referred to as listings, that are acknowledged as so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, App. 1; Burnett, 220 F.3d 112, 119.
In making this determination, the ALJ is guided by several basic principles set forth by the social security regulations and case law. First, if a claimant's impairment meets or equals one of the listed impairments, the claimant is considered disabled per se and is awarded benefits. 20 C.F.R. §416.920(d); Burnett, 220 F.3d at 119. However, to qualify for benefits by showing that an impairment, or combination of impairments, is equivalent to a listed impairment, a plaintiff bears the burden of presenting “medical findings equivalent in severity to all the criteria for the one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (citing 20 C.F.R. §416.920(d); SSR 83-19 at 91). An impairment, no matter how severe, that meets or equals only some of the criteria for a listed impairment is not sufficient. Id.
The determination of whether a claimant meets or equals a listing is a medical one. To be found disabled under Step 3, a claimant must present medical evidence or a medical opinion that his or her impairment meets or equals a listing. An ALJ is not required to accept a physician's opinion when that opinion is not supported by the objective medical evidence in the record. Maddox v. Heckler, 619 F.Supp. 930, 935-936 (D.C. Okl. 1984); Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Courts, § 3:22 (2014). However, it is the responsibility of the ALJ to identify the relevant listed impairments, because it is “the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits.” Burnett, 220 F.3d at 120 n.2.
On this score, however, it is also clearly established that the ALJ's treatment of this issue must go beyond a summary conclusion, since a bare conclusion “is beyond meaningful judicial review.” Burnett, 220 F.3d at 119. Thus, case law “does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis. Rather, the function . . . is to ensure that there is sufficient development of the record and explanation of findings to permit meaningful review.” Jones, 364 F.3d at 505. This goal is met when the ALJ's decision, “read as a whole,” id., permits a meaningful review of the SLJ's Step 3 analysis. However, when “the ALJ's conclusory statement [at Step 3] is . . . beyond meaningful judicial review,” a remand is required to adequately articulate the reasons for rejecting the claim at this potentially outcome-determinative stage. Burnett, 220 F.3d at 119.
D. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms
The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:
[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) (“In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses....”). However, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to provide “specific reasons for rejecting lay testimony”). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
Yet, it is also clear that:
Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of pain under a standard of review which is deferential with respect to the ALJ's well-articulated findings but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.
In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled”). It is well settled in the Third Circuit that “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.
First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence, or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 163p. This includes but is not limited to medical signs and laboratory findings, diagnoses, and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.
Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015); George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24, 2014).
E. The ALJ's Decision in this Case is Supported by Substantial Evidence.
In this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and “does not mean a large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), but rather “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Biestek, 139 S.Ct. at 1154. Judged against these deferential standards of review, we find that substantial evidence supported the ALJ's decision that Meier was not entirely disabled.
Meier asserts that the ALJ failed to consider whether her fibromyalgia met or medically equaled a listed impairment. In support of this assertion, the plaintiff cites to SSR 12-2p, which governs the ALJ's consideration of fibromyalgia. Here, the ALJ found Meier's fibromyalgia to be a severe impairment, but at Step 3, found that none of Meier's severe impairments met or medically equaled a listing. On this score, it is well settled that “[t]he level of severity required to meet or equal a listed impairment is higher than that needed to meet or equal the statutory standard for disability.” Lippincott v. Comm'r of Soc. Sec., 982 F.Supp.2d 358, 369 (D.N.J. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). Indeed, the listed impairments are those that prevent an adult “from performing not just substantial gainful activity, but any gainful activity.” Id. (citing 20 C.F.R. § 416.925(a)).
Here, the ALJ considered SSR 12-2p in his discussion of whether Meier's fibromyalgia met or medically equaled a listed impairment. While the ALJ's treatment of this issue at Step 3 was somewhat brief, the ALJ did discuss the evidence related to Meier's fibromyalgia throughout his opinion and in consideration of the plaintiff's residual functional capacity. Moreover, and significantly, as we have explained the listed impairments are those impairments that are so severe that they are per se disabling, preventing an individual “from performing not just substantial gainful activity, but any gainful activity.” Lippincott, 982 F.Supp.2d at 369. In this case, it is undisputed that Meier was working during the alleged disability period. In fact, her treating provider, Dr. Benyo, filled out a preemployment physical for her in August of 2019 during the alleged disability period. Moreover, Dr. Benyo's treatment notes indicated that Meier was still working through September of 2020. Thus, the factual record thoroughly rebutted any claim that Meier was per se disabled since she was, in fact, working during the period of her claimed disability.
Accordingly, we conclude that any conceivable error in the ALJ's Step 3 analysis is harmless. Social Security appeals are subject to harmless error analysis. Therefore:
[A]ny evaluation of an administrative agency disability determination must also take into account the fundamental principle that: “‘No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result.'” Moua v. Colvin, 541 Fed.Appx. 794, 798 (10th Cir. 2013) quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989). Thus, ALJ determinations in Social Security appeals are subject to harmless error analysis, Seaman v. Soc. Sec. Admin., 321 Fed.Appx. 134, 135 (3d Cir. 2009) and “the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 1706, 173 L.Ed.2d 532 (2009).Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *4 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017). In this regard “we apply harmless error analysis cautiously in the administrative review setting.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). However:
In Social Security appeals courts may apply harmless error analysis when assessing the sufficiency of an ALJ's decision. Seaman v. Soc. Sec. Admin., 321 Fed.Appx. 134, 135 (3d Cir. 2009). “Under the harmless error rule, an error warrants remand if it prejudices a party's ‘substantial rights.' An error implicates substantial rights if it likely affects the outcome of the proceeding, or likely affects the ‘perceived fairness, integrity, or public reputation of judicial proceedings.'” Hyer v. Colvin, 72 F.Supp.3d 479, 494 (D. Del. 2014).Harrison v. Berryhill, No. 3:17-CV-618, 2018 WL 2051691, at *5 (M.D. Pa. Apr. 17, 2018), report and recommendation adopted, No. 3:17-CV-0618, 2018 WL 2049924 (M.D. Pa. May 2, 2018).
In the instant case, it is undisputed that Meier was working during the alleged period of disability. In fact, the ALJ afforded Meier the benefit of every doubt by completing the entire five-step sequential analysis, having found at Step 1 that Meier engaged in substantial gainful activity. The ALJ then proceeded to discuss Meier's residual functional capacity, and he considered all of the medical evidence related to Meier's fibromyalgia in fashioning this RFC assessment. The RFC provided both postural and environmental limitations, specifically with respect to Meier's upper and lower extremities to the extent her symptoms were consistent with the objective medical record. Thus, we cannot conclude that the ALJ's treatment of her claim at Step 3 requires a remand. See e.g., Rivera v. Comm'r of Soc. Sec., 164 Fed.Appx. 260, 263 (3d Cir. 2006) (finding that “the ALJ's conclusory statement in step three was harmless” in light of the “abundant [medical] evidence supporting the position taken by the ALJ”); Albury v. Comm'r of Soc. Sec., 116 Fed.Appx. 328, 330 (3d Cir. 2004) (affirming the denial of benefits and finding any error at Step 3 harmless “because the decision is still supported by substantial evidence, and the ALJ's decision is explained in sufficient detail to allow meaningful review”).
Moreover, we conclude that the ALJ adequately considered the plaintiff's subjective complaints in his discussion of her RFC. Meier testified at the administrative hearing that she was unable to work due to her fibromyalgia symptoms, as well as symptoms from her other impairments. She claimed that she could only stand for five minutes, walk no more than one hour, and sit no more than a half hour, and that she suffered from brain fog, shortness of breath, and extreme fatigue. She stated that she had pain in her back, neck, and feet. However, the ALJ noted that Meier's activities of daily living, coupled with the objective medical findings, indicated that she could perform a range of light work. On this score, Meier testified that she was able to grocery shop, although she had a hard time carrying the bags; she was able to do some household chores and personal care; and she was able to drive herself.
Moreover, the objective medical evidence indicated that Meier was not as limited as she alleged. Indeed, the evidence showed largely normal examination findings, and treatment notes indicated that her medication helped ease her pain and that she was stable on her medications. In addition, the pre-employment form completed by the treating provider, Dr. Benyo, in August of 2019 indicated that Meier had no arthritis, backache, back injury disc disorder, joint/tendon disorder or rheumatoid disorder. Moreover, in our view, it is worth noting again that between October 2019 and September of 2020 during the relevant period, Meier engaged in substantial gainful activity as she was working throughout this period. Thus, the ALJ concluded that while Meier's impairments may cause some of the symptoms that she alleged to have suffered, the objective medical evidence coupled with her activities of daily living showed she was not as limited as she alleged.
At bottom, it appears that the plaintiff is requesting that this court re-weigh the medical and opinion evidence. This we may not do. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (“Courts are not permitted to re-weigh the evidence or impose their own factual determinations.”); see also Gonzalez v. Astrue, 537 F.Supp.2d 644, 657 (D. Del. 2008) (“In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.”) (internal citations omitted)). Rather, our task is simply to determine whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce, 487 U.S. at 565. Finding that this deferential standard of review is met here, we conclude that a remand is not appropriate for the purpose of further assessing this opinion evidence.
In sum, on its merits the ALJ's assessment of the evidence in this case complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence might have been viewed in a way which would have also supported a different finding, we are obliged to affirm this ruling once we find that it is “supported by substantial evidence, ‘even [where] this court acting de novo might have reached a different conclusion.' ” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we find that substantial evidence supported the ALJ's evaluation of this case and recommend that this decision be affirmed.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be affirmed, and the plaintiff's appeal denied.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.