Opinion
Civil No. 4:18-CV-00055
12-04-2018
JODY LYNN MIRANDA, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security Defendant.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Introduction
Plaintiff Jody Lynn Miranda ("Miranda") asserts that she has been disabled and unable to work since August 8, 2012, due to a number of conditions, including post-traumatic stress disorder ("PTSD"), severe depression, anxiety, hypersensitivity, and hepatitis C. Tr. 193. She brought this action pursuant to 42 U.S.C. §405(g), seeking review of a final decision of defendant Commissioner of Social Security (the "Commissioner"), who denied Miranda's claim for disability benefits. For the reasons explained below, we recommend that the final decision of the Commissioner denying Miranda's claim be AFFIRMED.
II. Background
The Court refers to the transcripts provided by the Commissioner. See Doc. 11. Miranda protectively filed a Title II application for disability insurance benefits and a Title XVI application for supplemental security income on April 4, 2014, alleging August 8, 2012 as the onset date of disability. Tr. 12. Miranda's claim was initially denied on August 4, 2014. Id. ALJ Patrick S. Cutter ("ALJ Cutter") held a hearing for Miranda's claims on September 14, 2016, at which Miranda appeared and testified with the assistance of counsel. Id. ALJ Cutter denied Miranda's claims and found Miranda to be not disabled in a written decision dated October 3, 2016. Id. at 28. Miranda subsequently filed a timely request for review of ALJ Cutter's decision with the Appeals Council, and it was denied November 7, 2017. Id. at 1. On January 9, 2018, Miranda filed this federal action. Doc. 1.
The facts of this case are well known to the parties and will not be repeated here. Instead, we will recite only those facts which bear on Miranda's claims.
III. Legal Standards
A. Substantial Evidence Review - the Role of This Court
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); 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 (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). In an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The question before the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that the claimant 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 [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
B. 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). 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(a); 20 C.F.R. §404.131(a).
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 three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§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).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §§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).
IV. ALJ Decision
In his decision dated October 3, 2016, ALJ Cutter held that Miranda was not disabled within the meaning of the Social Security Act. Tr. 28. At step one, ALJ Cutter determined that Miranda has not engaged in substantial gainful activity since August 8, 2012. Id. at 15. At step two, ALJ Cutter found that Miranda suffers from the following severe impairments: (1) depression, (2) anxiety, (3) bilateral knee osteoarthritis, and (4) lymphedema of the bilateral feet/legs. Id.
At step three, ALJ cutter determined that Miranda does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16. Particularly, ALJ Cutter considered the Listings under Section 1.00 and Listings 12.04 and 12.06 and concluded that Miranda's impairments do not meet the criteria of those listings. Id. at 16-18.
Between step three and step four, ALJ Cutter found that Miranda has:
the residual functional capacity to perform light work as defined in 20 C.F.R. [§§] 404.1567(b) and 416.967(b) except she can continuously sit; she can occasionally stand, walk, climb, balance, stoop, kneel, crouch, and crawl; she can continuously reach, handle, finger, and feel with the bilateral upper extremities; she can continuously operate foot controls with the bilateral lower extremities; she can perform routine[,] repetitive 1-2 step type tasks; she can perform work involving frequent changes in the work
situation and occasional decision making; she can frequently interact with the public, coworkers, and supervisors.Id. at 18.
In making these findings, ALJ Cutter gave significant weight to non-examining state agency psychological consultant Dr. Sandra Banks's ("Dr. Banks") Psychiatric Review Technique and Mental RFC Assessment, in which she found that Miranda's restrictions in activities of daily living, difficulties in maintaining social functioning, and difficulties maintaining concentration, persistence, or pace are moderate; that she has not had repeated episodes of decompensation; and that she is capable of performing simple tasks. Id. at 25.
ALJ Cutter also gave significant weight to consultative psychological examiner Dr. Michael J. DeWulf's ("Dr. DeWulf") Medical Source Statement, in which he found that Miranda has mild difficulty in understanding, remembering, and carrying out simple instructions; and that she has moderate difficulty in making judgments on simple work-related decisions; understanding, remembering, and carrying out complex instructions; making judgments on complex work-related decisions; interacting appropriately with the public, supervisors, and coworkers; and responding appropriately to usual work situations and to changes in a routine work setting. Id.
Additionally, ALJ Cutter assigned limited weight to the global assessment of functioning ("GAF") scores provided by Miranda's therapist, Michelle M. Brown, and her treating psychiatrist, Vassili V. Arkadiev, who both rated Miranda with a score of 50. Id. at 26. ALJ Cutter assigned limited weight to these scores because Miranda's "psychiatric treatment did not start until July 21, 2014[,] although the alleged onset date is August 8, 2012, and by January 25, the progress notes were showing stable symptoms and generally appropriate functioning." Id.
A GAF score is a numerical summary of a clinician's judgment of an individual's psychological, social, and occupational functioning on a hypothetical continuum of mental health on a scale of one hundred. See Diagnostic and Statistical Manual of Mental Disorders, 32-34 (4th ed. text rev. 2000) (hereinafter "DSM-IV"). The Social Security Administration has recognized that a claimant's GAF score is not considered to have a direct correlation to the severity requirements. Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 FR 50746-01, 50764-65 (Aug. 21, 2001). However, the administration has noted that the GAF is the scale used by mental health professionals to "assess current treatment needs and provide a prognosis." Id. As such, it constitutes medical evidence accepted and relied upon by a medical source and must be addressed by an ALJ in making a determination regarding a claimant's disability.
A GAF score between 41 and 50 denotes serious symptoms or serious impairment in social, occupational, or school functioning. DSM-IV, supra note 3.
ALJ Cutter also found that Miranda's and Miranda's husband's statements "concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record" for various reasons stated in the RFC assessment. Id. at 21.
At step four, ALJ Cutter determined that Miranda is unable to perform any of her past relevant work as a retail clerk and cashier. Id. at 26. At step five, after considering Miranda's age, education, work experience, and RFC, ALJ Cutter determined that there are jobs that exist in significant numbers in the national economy that Miranda can perform. Id. This finding relied on the testimony of vocational expert James W. Primm ("the VE"). Id. at 27. The VE testified at the administrative hearing that an individual with Miranda's RFC and limitations, as adjudged by ALJ Cutter, could perform the requirements of representative occupations such as an information clerk, a ticket taker, and a ticket seller. Id. Ultimately, ALJ Cutter found that Miranda was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Id. at 27-28.
V. Discussion
Miranda raises three issues on appeal: (1) Did ALJ Cutter improperly consider Miranda's lymphedema of the bilateral legs and feet in addition to Miranda's osteoarthritis of the knees? (2) Did ALJ Cutter properly consider Miranda's mental health impairments in the RFC assessment? and (3) Did ALJ Cutter improperly focus on a single treatment note in rendering his decision, instead of considering the entire record?
A. ALJ Cutter's Consideration of Miranda's Lymphedema and Osteoarthritis
Miranda asserts that ALJ Cutter improperly considered Miranda's lymphedema in formulating the RFC; improperly considered Miranda's osteoarthritis under Listing 1.02; and erroneously failed to consider Listing 4.11. Doc. 16 at 12-17. In response, the Commissioner generally submits that, Miranda's "arguments are factually inaccurate and incorrect as a matter of law." Doc. 17 at 2.
To begin, Miranda argues that ALJ Cutter did not consider the various symptoms and complaints from Miranda because ALJ Cutter did not include certain limitations in the RFC and did not discuss the impact of Miranda's symptoms on her ability to work. Doc. 16 at 14. In making this argument, Miranda does not reference any supporting law or regulations. Miranda simply points to her own testimony about how she has to frequently elevate her legs and use a leg pump to help with the swelling and other symptoms associated with her lymphedema. Id. The Commissioner responds by asserting that ALJ Cutter demonstrated in his decision that he considered Miranda's symptoms and the relevant medical evidence concerning Miranda's lymphedema. Doc. 17 at 3. We agree with the Commissioner.
We fail to see how ALJ Cutter failed to consider the relevant medical evidence and allegations concerning Miranda's lymphedema because, as Miranda admits, doc. 16 at 13, the ALJ noted several of Miranda's allegations about the impact of her lymphedema on her life and various medical records documenting her symptoms and complaints. Tr. 19-20, 21-24. Because Miranda does not provide an explanation of how ALJ Cutter's consideration of this relevant evidence is noncompliant with the law, we turn to the legal tenets that we find relevant to the situation.
The Third Circuit states that "[i]n making a residual functional capacity determination, the ALJ must consider all evidence before him. Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence." Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (internal citations omitted) (referencing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)). As we observed earlier, ALJ Cutter specifically pointed to different progress notes, medical reports, and testimony from Miranda that account for the impact of Miranda's lymphedema, which demonstrates that he did not ignore the relevant evidence. ALJ Cutter also explained that he did not find Miranda's allegations about the severity of her symptoms completely consistent with the medical evidence and other evidence of record for various reasons discussed in the RFC. Tr. 21. His reasoning for specifically discounting Miranda's allegations about her lymphedema is that though Miranda testified to using a pump to treat her swelling, use of such a method is not documented in her treatment notes, and "there is no documentation of work preclusive symptoms or limitations from lymphedema." Id. at 24. Because ALJ Cutter found, after having reviewed the relevant evidence, that the alleged severity of Miranda's symptoms was not consistent with the medical records, we find that ALJ Cutter did not err in formulating the RFC. Therefore, Miranda's argument fails on this ground.
As we noted earlier, Miranda also asserts that ALJ Cutter failed to consider Miranda's impairments in the context of Listings 1.02 and 4.11. Doc. 16 at 14. In reply, the Commissioner submits that Miranda fails to develop any meaningful argument and provides no credible reason as to why remand is necessary. Doc. 17 at 6.
At step three, the ALJ is required to consider whether a claimant has an impairment or combination of impairments that meets or equals a listing. 20 C.F.R. §§404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment meets or equals one of the listings, the claimant will be found per se disabled. 20 C.F.R. §§404.1520(d), 416.920(d). In order for a claimant to meet a listing at step three, the claimant must meet stringent legal standards. These standards require that the claimant "meet all of the specified medical criteria" in a listing, and the Supreme Court explains that "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). Additionally, the regulations instruct that a claimant's impairment "cannot meet the criteria of a listing based only on a diagnosis. To meet the requirements of a listing, [the claimant] must have a medically determinable impairment(s) that satisfies the criteria in the listing." 20 C.F.R. §§404.1525(d), 416.925(d).
Listing 1.02(A) concerns major dysfunction of a joint, due to any cause:
[c]haracterized by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankyloses, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankyloses of the affected joint(s) With:20 C.F.R. Part 404, Subpart P, Appendix 1, Part A1, 1.02(A) (effective September 29, 2016 to October 6, 2016). Under the listings, 1.00B2b defines inability to ambulate effectively as:
A. Involvement of one major peripheral weight-bearing joint (i.e. hip, knee, or ankle), resulting in an inability to ambulate effectively, as defined in 1.00B2b.
an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.20 C.F.R. Part 404, Subpart P, Appendix 1, Part A1, 1.00B2b(1).
Under the regulations, Miranda is responsible for demonstrating that she meets all of the requirements of a listing. In her brief, she simply states that she had chronic pain and limitation of motion in her knees, which ultimately resulted in surgery and injections as treatment. This does not meet the requirements of Listing 1.02. Therefore, to the extent that any error might exist in ALJ Cutter's analysis concerning Listing 1.02, we find that it is harmless because Miranda fails to show how ALJ Cutter's conclusion that Miranda does not meet Listing 1.02 is erroneous.
With regard to Listing 4.11, Miranda asserts that ALJ Cutter should have considered Miranda's lymphedema in the context of 4.11 because the record demonstrates that she chronically suffered from pitting edema and swelling of the bilateral lower extremities. Doc. 16 at 16-17. We find that this argument also falls flat because Listing 4.11 concerns:
[c]hronic venous insufficiency of a lower extremity with incompetency or obstruction of the deep venous system and one of the following:20 C.F.R. Part 404, Subpart P, Appendix 1, Part A1, 4.11. Miranda claims that there is evidence of incompetency of the deep venous system and brawny edema in the record; however, her citation to the record refers to a portion of her testimony which does not indicate that she suffers from incompetency or obstruction of the deep venous system or brawny edema. Doc. 16 at 16. In contrast, the Commissioner points out in her brief that there is no evidence that Miranda has been diagnosed with incompetency or obstruction of the deep venous system. Doc. 17 at 10. Because Miranda does not point to a diagnosis of chronic venous insufficiency with incompetency or obstruction of the deep venous system and does not explain how her diagnosis of lymphedema would warrant consideration of her condition under Listing 4.11, we do not find that ALJ Cutter erred by failing to provide an analysis under Listing 4.11.
A. Extensive brawny edema (see 4.00G3) involving at least two-thirds of the leg between the ankle and knee or the distal one-third of the lower extremity between the ankle and hip.
OR
B. Superficial variscosities, stasis dermatitis, and either recurrent ulceration that has not healed following at least 3 months of prescribed treatment.
B. ALJ Cutter's Consideration of Miranda's Mental Impairments
Miranda next asserts that ALJ Cutter erred because he "failed to make reference to, or consider limitations related to, various other mental health related disorders, including: (1) post-traumatic stress disorder, (2) personality disorder, (3) panic attacks, and (4) sleep disorder." Doc. 16 at 18-19. The law to which Miranda cites in support of this assertion is that which concerns how the ALJ determines which of the claimant's impairments are severe at step two.
At step two of the decision process, the ALJ determines whether a claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). With regard to this inquiry at step two, the Third Circuit Court of Appeals is clear that this inquiry is a de minimis screening device used to cast out meritless claims. See Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003); McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004). Therefore, in the Third Circuit, it is a minimal threshold that an impairment must meet in order for it to qualify as severe, and "[i]f the evidence presented by the claimant presents more than a 'slight abnormality[,]' the step-two requirement of 'severe' is met, and the evaluation process should continue." Newell, 347 F.3d at 546 (referencing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). Furthermore, an ALJ will not find that an impairment is severe unless "it significantly limits the claimant's physical or mental ability to do 'basic work activities,' i.e., physical abilities and aptitudes necessary to do most jobs." Lopez v. Colvin, No. 1:15-CV-01139, 2016 WL 4718153, at *5 (M.D. Pa. Aug. 3, 2016) (citing 20 C.F.R. §§ 404.1521(b) and 416.921(b)).
The burden is on the claimant to show that an impairment qualifies as severe. Bowen, 482 U.S. at 146 n.5. Thus, a claimant must provide evidence that shows his or her impairment "significantly limit[s] his or her ability to do basic work activities or impair[s] his or her capacity to cope with the mental demands of working," because "objective medical diagnoses alone are insufficient to establish severity at step two." Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1520(c); 416.920(c); 404.1521(a); 416.921(a); Salles v. Comm'r of Soc. Sec., 229 Fed. Appx. 140, 144-145 (3d Cir. 2007)).
When an ALJ incorrectly determines at step two that a medical impairment is not severe, the ALJ's decision will not be considered deficient if there was another medical impairment that the ALJ found to be severe, which subsequently allowed the ALJ to consider all of the claimant's impairments in the RFC assessment at step four. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1523, 416.923, 404.1545(a)(2), 416.945(a)(2); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); Shannon v. Astrue, No. 4:11-CV-00289, 2012 WL 1205816, at *10-11 (M.D. Pa. Apr. 11, 2012); Bell v. Colvin, No. 3:12-CV-00634, 2013 WL 6835408, at *8 (M.D. Pa. Dec. 23, 2013)). In other words, as long as a claimant's medical impairment is properly considered in the RFC, incorrectly finding that an impairment is nonsevere is harmless error.
At step two, ALJ Cutter determined that Miranda's depression, anxiety, bilateral knee osteoarthritis, and lymphedema of the bilateral feet and legs were severe impairments. Tr. 15. As noted earlier, Miranda argues that ALJ Cutter failed to consider Miranda's PTSD, personality disorder, panic attacks, and sleep disorder. We find that this assertion is not entirely accurate because ALJ Cutter specifically mentioned that Miranda has PTSD in the RFC assessment. Id. at 18. Furthermore, Miranda does not point to any evidence that shows she was diagnosed with a sleep disorder; however, regardless of whether there was such a diagnosis, ALJ Cutter acknowledged twice in the RFC assessment that Miranda has trouble with sleeping due to her mental impairments. Id. at 19, 20. In light of the legal tenets enumerated above, we find that if ALJ Cutter was mistaken in finding that Miranda's PTSD and alleged sleep disorder were not severe impairments, it is harmless error because ALJ Cutter found other impairments to be severe at step two, and he properly considered Miranda's PTSD and sleep disorder in the RFC. Lopez, 2016 WL 4718153, at *5 (referencing 20 C.F.R. §§ 404.1523, 416.923, 404.1545(a)(2), 416.945(a)(2); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); Shannon v. Astrue, No. 4:11-CV-00289, 2012 WL 1205816, at *10-11 (M.D. Pa. Apr. 11, 2012); Bell v. Colvin, No. 3:12-CV-00634, 2013 WL 6835408, at *8 (M.D. Pa. Dec. 23, 2013)).
With regard to Miranda's panic attacks, we note that this is a symptom related to her mental impairments, not a diagnosed impairment. Because Miranda fails to explain how this symptom limits her ability to work, and does not point to any law requiring an ALJ to specifically discuss every symptom of a claimant's impairments, we find that ALJ Cutter did not err in failing to specifically mention Miranda's panic attacks.
Finally, we turn to Miranda's personality disorder. The record demonstrates that Miranda's diagnosis of unspecified personality disorder is well documented in the limited treatment notes provided that concern her mental health. Tr. 303, 351, 354, 356, 358, 360, 362, 364, 266, 268, 371, 373, 376, 380. However, Miranda does not explain how this impairment caused any limitation in her ability to work. Furthermore, she did not allege in her application that it is one of her medical conditions preventing her from working id. at 193, and she did not make any allegations of this condition limiting her ability to work at her September 14, 2016 hearing. Though it was error for ALJ Cutter to fail to acknowledge this impairment, we find that such error is harmless in this situation. We find this omission to be harmless error because without an explanation of how this impairment limited Miranda's ability to work, or how ALJ Cutter's failure to mention it caused harm to Miranda, we do not see how remand for explicit consideration of this impairment would change the outcome of the ALJ's decision. See Rutherford v. Barnhart, 399 F.3d 546, 552-553 (3d Cir. 2005) (finding that remand to consider the plaintiff's obesity was unnecessary because the plaintiff did not allege that her obesity contributed to her inability to work and did not specify how consideration of this impairment would impact the ALJ's analysis). Therefore, we find that remand is not warranted on this ground.
C. ALJ Cutter's Consideration of the Record as A Whole
Next, Miranda asserts that ALJ Cutter erred by improperly focusing "on a single treatment record from February 24, 2015, in rendering his decision, while at the same time not affording proper weight to other evidence." Doc. 16 at 20. Miranda argues that remand is warranted because ALJ Cutter failed to consider the record as a whole regarding both her physical and mental impairments. Id. at 21. We find that this argument is incomplete because Miranda does not explain how ALJ Cutter only focused on treatment notes from one specific date or how ALJ Cutter did not consider the record as a whole. We will not dig through the record in hopes of guessing how Miranda believes ALJ Cutter improperly considered the record. See U.S. v. Dunkel, 927 F.2d 955 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."); see also U.S. v. Winkelman, 548 F. Supp. 2d 142, 150 (M.D. Pa. Mar. 10, 2008) ("We are not pigs searching for truffles and are unwilling to search through the massive record that has been developed in this case to find evidence of these alleged violations."). Moreover, it is not the responsibility of the Court to construct or develop arguments for a party; therefore, this argument fails, and we will address it no further. See Loewen v. Berryhill, 707 Fed. Appx. 907, 908 (9th Cir. 2017) (memorandum opinion) (citing Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (the court does not need to address arguments that were made without specificity); Indep. Towers of Wash. V. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (the court cannot construct arguments for an appellant, and it will only examine issues specifically and distinctly argued in an appellant's initial brief)).
Additionally, Miranda argues that she submitted records to the Appeals Council, following ALJ Cutter's decision, that should have been considered by ALJ Cutter as part of the record. Id. Here, we find that Miranda not only fails to develop her argument, but she also violates the Local Rules for social security appeals with this Court by failing to point to any law or regulation in support of her assertion and by failing to provide a reason for why such evidence should have been considered by ALJ Cutter. LR 83.40.4(c) ("Each contention must be supported by specific reference to the portion of the record relied upon and by citations to statutes, regulations and cases supporting plaintiff's position."). Therefore, no further discussion of this matter is warranted.
VI. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that:
1. Final Judgment should be entered in favor of the Commissioner of Social Security and against Miranda as set forth in the following paragraph;The parties are further placed on notice that pursuant to Local Rule 72.3:
2. The final decision of the Commissioner of Social Security denying Miranda's applications for benefits should be AFFIRMED and the Clerk of the Court should be instructed to close this case.
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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Submitted December 4, 2018
S/Susan E . Schwab
Susan E. Schwab
United States Magistrate Judge