Opinion
No. 3:17-cv-00944
07-18-2018
CATHERINE MONAHAN, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Conner, C.J.)
()
REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Deputy Commissioner of Social Security's ("Deputy Commissioner") final decision denying Catherine Monahan's ("Monahan") claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED. I. Background and Procedural History
Monahan is an adult individual born April 11, 1966, who was 45 years old at the time of her alleged onset date of disability - December 16, 2011. Monahan's age at the onset date makes her a "younger person" under the Social Security Act. See 20 C.F.R. §404.1563(c). Monahan has at least a high school education and has previously worked as a merchandise manager. (Tr. 20).
On March 19, 2012, Monahan protectively filed for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging her onset date of disability as December 16, 2011. (Tr. 96). In her application, Monahan reported that the following impairments prevent her from being able to work: chronic migraines, herniated discs in neck, bi-polar disorder, depression, and anxiety disorder. (Tr. 185).
Monahan's claims were initially denied on July 19, 2012. On August 31, 2012, she filed a timely request for an administrative hearing that was subsequently granted. Monahan appeared and testified before Administrative Law Judge ("ALJ") Jarrod Tranguch on July 18, 2013, in Wilkes-Barre, Pennsylvania and was represented by counsel, Gregory Skibitsky, throughout the proceeding. In addition, impartial vocational expert ("VE") Nadine Henzes also appeared and testified during the administrative hearing. At the time of the administrative hearing, Monahan was 47 years old and resided in Exeter, Pennsylvania, which is in the Middle District of Pennsylvania.
In a written decision dated July 30, 2013, the ALJ denied Monahan's application for benefits. Subsequently, Monahan sought further review of her claims by the Appeals Council of the Office of Disability Adjudication and Review, which granted her request and remanded the ALJ's decision for further proceedings on January 13, 2015. (Tr. 110-112). In the Appeals Council's order, the ALJ was directed to obtain additional evidence for the record, further consider and explain Monahan's RFC, and if necessary, obtain further evidence from a vocational expert. (Tr. 111-112).
Monahan appeared with counsel and testified at another hearing held by ALJ Jarrod Tranguch on June 2, 2015, in Wilkes-Barre, Pennsylvania. (Tr. 15). At this hearing Karen Kane appeared and testified as the impartial VE. In a written decision dated November 20, 2015, the ALJ denied Monahan's application for benefits a second time. (Tr. 22). On December 28, 2016, Monahan filed a request for review with the Appeals Council, (Tr. 10), which was denied on April 25, 2017. (Tr. 1). This makes the ALJ's November 20, 2015 decision the final decision subject to judicial review by this Court.
Monahan filed a timely complaint in this Court on June 12, 2017. (Doc. 1). In her complaint, Monahan asserts that the final decision of the Commissioner is not supported by substantial evidence and contains errors of fact and law. (Doc. 1).
On August 8, 2017, the Deputy Commissioner filed her answer, in which, she maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 9). This matter has been fully briefed by the parties and is ripe for decision. (Docs. 13, 14, 15).
As stated earlier, Monahan alleged that she is disabled due to chronic migraines, herniated discs in her neck, bi-polar disorder, depression, and anxiety. With regard to the condition of Monahan's neck, the record indicates that she had small disc bulges at C5-6 and C6-7 that likely occurred while she unloaded a truck at work on March 2, 2010. (Tr. 637-638). Monahan had an MRI of her cervical spine on March 30, 2010, which revealed that she had broad-based disc herniation at C5-C6, which resulted in mild adjacent cord flattening, and a smaller broad-based central disc herniation at C6-C7. (Tr. 236). She treated with chiropractor Dr. E. Michael Catalanello ("Dr. Catalanello") for head and neck pain related to this injury from June 12, 2010, until December 5, 2011. (Tr. 237-537).
Monahan's history of headaches can be traced back as early as August 22, 2008, when she underwent an MRI because of her complaints of headaches. (Tr. 639). In the MRI report, it was noted that Monahan had a history of brain aneurysm and pituitary microandenoma, but otherwise the exam was unremarkable. (Tr. 640). This MRI was ordered by Monahan's treating primary care physician, Dr. Krishnakant A. Patel ("Dr. Patel"). The earliest treatment notes in the record from Dr. Patel are from March 15, 2010, within which, Dr. Patel lists non-ruptured cerebral aneurysm, migraine headache, anxiety, essential hypertension, hyperlipidemia, "[o]ther abnormal blood chemistry," and a swelling mass or lump in the head/neck as Monahan's active problems. (Tr. 627). In April of 2010, Monahan began complaining to Dr. Patel of experiencing migraines more frequently, and as a result, Monahan needed to attend follow-up appointments to monitor her medications. (Tr. 594, 598, 602, 607, 612, 617, 622). On August 18, 2011, Monahan reported to Dr. Patel that the frequency of her migraines had again increased (Tr. 594), and on October 28, 2011, she reported that the intensity of her symptoms had increased. (Tr. 590). On December 9, 2011, however, Dr. Patel's notes indicate that the frequency of Monahan's headaches had decreased, (tr. 586), and during Monahan's appointment on March 12, 2012, Dr. Patel noted that Monahan was feeling well, though her headaches still persisted. (Tr. 674). When Monahan saw Dr. Patel for her migraines on May 31, 2013, Dr. Patel noted that Monahan's migraines were the same, and that her March 27, 2013 MRA results were normal, but that Monahan reported she had been having trouble swallowing food. (Tr. 747). The comments interpreting Monahan's MRA results also noted that there was no evidence of brain aneurysm detected at that time either. (Tr. 768).
Monahan continued to regularly follow up with Dr. Patel for controlling her migraine pain, reporting any variances in her symptoms. (Tr. 747, 751, 756, 876, 887, 893, 897, 902, 907, 912, 917). On July 21 2014, Dr. Patel gave a referral to Monahan to see a neurologist. (Tr. 896). Despite the referral, Dr. Patel reported in his treatment notes on February 3, 2015, that Monahan had not yet seen a neurologist because the one to whom she was referred did not take her insurance. (Tr. 876).
On March 30, 2015, Monahan saw neurologist Dr. Latifa Boukarrou ("Dr. Boukarrou") for her persistent headaches. (Tr. 787). At this appointment, Dr. Boukarrou assessed Monahan with hemigplegic migraine, without mention of intractable migraine or status migrainosus. (Tr. 788). The only other contact between Dr. Boukarrou and Monahan documented in the record is a letter from Dr. Boukarrou to Monahan's attorney dated June 26, 2015. (Tr. 922). In this letter, Dr. Boukarrou stated that she has only been treating Monahan for a few months; noted that Monahan has suffered from debilitating migraines for over 20 years; and opined that Monahan's prognosis was quite poor. (Tr. 922). The ALJ gave this opinion little weight because Dr. Boukarrou had only seen Monahan once, and the statement that Monahan's migraines have been debilitating for over 20 years is contradictory to the fact that Monahan was capable of working until at least through the year 2010. (Tr. 20).
Additionally, Monahan arranged a consultative exam, at the request of the Pennsylvania Bureau of Disability Determination, with Dr. Joseph A. Campanella ("Dr. Campanella") on May 24, 2012. (Tr. 680). As a result of this exam, Dr. Campanella concluded that "there [was] no empirical evidence to support any significant physical limitations. (Tr. 682). The ALJ gave this opinion great weight. (Tr. 103).
With regard to Monahan's mental health, she started treating with psychiatrist Dr. Matthew Berger ("Dr. Berger") on September 28, 2011. (Tr. 578). At this initial appointment, Dr. Berger assessed Monahan as suffering from bipolar disorder, depression, and anxiety disorder, generalized, and he rated her with a GAF score of 60. (Tr. 580). Throughout her treatment with Dr. Berger from September 28, 2011, until April 23, 2015, the intensity of Monahan's symptoms fluctuated, but Dr. Berger never opined that Monahan was disabled due to her mental health. (Tr. 560-580, 706-745, 800-849). Indeed, starting on March 1, 2012, Dr. Berger regularly rated Monahan with GAF scores above 60. (Tr. 708, 712, 716, 719, 725, 802, 806, 811, 816, 821, 825, 829, 837, 841, 845, 848).
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 51 and 60 reflects moderate symptoms or difficulty in social, occupational, or school functioning. DSM-IV, supra note 2, at 34.
A GAF score between 61 and 70 reflects mild symptoms or some difficulty in functioning. DSM-IV, supra note 3.
On July 19, 2012, state reviewing psychologist Dr. James Vizza ("Dr. Vizza") reviewed Monahan's case and opined that Monahan was moderately limited in her ability to carry out detailed instructions and her ability to complete a normal workday or workweek without interruptions from psychologically based symptoms, but was not significantly limited in any other way. (Tr. 87-88). Based on this assessment, Dr. Vizza concluded that Monahan's mental impairments did not prevent her from performing the basic mental demands of sustained employment. (Tr. 88). The ALJ found that Dr. Vizza overestimated Monahan's mental limitations and gave the opinion little weight because it was not supported by Dr. Berger's records. (Tr. 103). II. Legal Standards
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); 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court, therefore, is not whether 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 Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
b. 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. §1382c(a)(3)(A); see also 20 C.F.R. §416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must also 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. 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. §416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§ 416.920(e), 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. §416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5); 42 U.S.C. §1382c(a)(3)(H)(i) (incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R. §416.912; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §416.912(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. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
c. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations define medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions. 20 C.F.R. §§404.1527(a)(2), 416.927(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §§404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c) and 20 C.F.R. §416.927(c). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2) (explaining what is required for a source's opinion to be controlling).
Where no medical opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinion: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. §§404.1527(c), 416.927(c).
Furthermore, the ALJ's articulation of the weight accorded to each medical opinion must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). "Where a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). III. Discussion
In his November 20, 2015 decision denying Monahan's claim, the ALJ evaluated Monahan's application for benefits at each step of the sequential process. At step one, the ALJ found that Monahan did not engage in substantial gainful activity since December 16, 2011. (Tr. 17). At step two, the ALJ found that the following impairments were medically determinable and severe during the relevant period: migraine headaches and degenerative disc disease. (Tr. 17). At step three, the ALJ found that Monahan 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, during the relevant period. (Tr. 18).
Between steps three and four, the ALJ assessed Monahan's RFC. The ALJ found that Monahan had the capacity to perform light work as defined in 20 C.F.R. §404.1567(b) with the following limitations:
[Monahan] is limited to occasional pushing/pulling with her upper extremities, including the operation of levers and hand controls. She must avoid balancing on planks or elevated areas. She must avoid climbing ladders, ropes, or scaffolds. She is limited to occasional bending, crouching, crawling, and stooping. She must avoid vibrations and exposure to hazards such as moving machinery or unprotected heights. She must avoid very loud work environments and concentrated exposure to strong smells, fumes, and smoke. She is limited to unskilled work involving only simple, routine tasks not performed in a fast-paced work environment. She is limited to low stress work involving no more than occasional, simple decision-making and occasional changes in work duties and work settings.(Tr. 18).
At step four, the ALJ found that Monahan was unable to perform her past relevant work as a merchandise manager, which was described as exertionally heavy and light in skill. (Tr. 76). At step five, the ALJ determined based on Monahan's age, education, work experience, and RFC, that there are a significant number of jobs in the national economy that Monahan can perform, including a cashier, an information clerk, and an office helper. (Tr. 20-21).
Monahan contends that the decision of the ALJ is not supported by substantial evidence of record and raises two issues on appeal. Specifically, Monahan argues that (a) the ALJ improperly weighed the medical opinion evidence; and (b) the ALJ erred by failing to assign great or significant weight to any opinion concerning Monahan's mental health. We shall address each argument seriatim.
a. The ALJ properly weighed the opinion evidence.
Monahan asserts that the ALJ's decision is not supported by substantial evidence because the ALJ did not assign controlling weight to treating primary care physician Dr. Patel's opinion that Monahan is unable to work. (Doc. 13 p. 8). The Commissioner's regulations provide that statements by a medical source opining that a claimant is "disabled" or "unable to work" are examples of administrative findings that are reserved to the Commissioner. 20 C.F.R. §404.1527(d). Statements by medical sources on issues reserved to the Commissioner are not medical opinions under 20 C.F.R. §404.1527(a)(2), and are never entitled to special significance or controlling weight under the treating physician rule. 20 C.F.R. §404.1527(d); SSR 96-5p, 1996 WL 374183; see also 20 C.F.R. §404.1527(c)(2) (describing the treating physician rule). However, the Commissioner's regulations require that an ALJ always carefully consider all medical source opinions about any issue when assessing a claimant's RFC. 20 C.F.R. §404.1545; SSR 96-5p, 1996 WL 374183, at *3 ("opinions from any medical source on issues reserved to the Commissioner must never be ignored.").
We are aware that SSR 96-5p was rescinded, however it is still applicable here because this case was filed before the effective date of that rescission.
In his decision, the ALJ explained that he afforded Dr. Patel's opinion limited weight for various reasons. (Tr. 19-20, 102-103). Specifically, the ALJ noted that Dr. Patel's opinion is not supported by his own clinical findings because Dr. Patel never documented any cognitive difficulties experienced by Monahan, and instead, noted normal findings in multiple neurological and mental status examinations, such as normal mood, affect, and memory. (Tr. 19-20). The ALJ also found it significant that an MRA of Monahan's brain in March 2013 was reported as normal; that Monahan testified that she has not gone grocery shopping for years, but later admitted that she goes to the Dollar store and local pharmacy on a regular basis; that Dr. Patel noted in May of 2013, that Monahan did not report any physical disabilities but did report normal activities of daily living; and that Monahan testified that she cannot tolerate cigarette smoke when she has a migraine, but also testified that she smokes 10 to 15 cigarettes a day, and reported to Dr. Patel that she is "an every day smoker." (Tr. 102).
We considered the ALJ's reasoning in his July 30, 2013 decision because the ALJ incorporated that prior decision by reference in the discussion of his November 11, 2015 decision. (Tr. 19).
As we observed earlier, the ALJ is required to clearly explain the basis of his decision and indicate which evidence he has rejected and which he has relied upon. Cotter, 642 F.2d at 704; Schaudeck, 181 F.3d at 433. In this case, we find that the ALJ's explanation clearly demonstrates why he rejected Dr. Patel's opinion. The inconsistencies between Dr. Patel's treatment notes, the brain scans of record, and Monahan's own contradictory testimony concerning the severity of her symptoms amount to the "mere scintilla" that constitutes substantial evidence in support of his decision. Furthermore, the ALJ demonstrated in his decision that he relied on consultative examiner Dr. Campanella's findings, instead of those of Dr. Patel, in formulating the RFC by renewing his sentiments from his July 30, 2013 decision, where he gave Dr. Campanella's opinion on Monahan's physical capabilities great weight. (Tr. 20, 103).
In protest of the ALJ's reliance on Dr. Campanella's opinion, Monahan argues that Dr. Campanella's opinion is unreliable because it was made in May 2012; Monahan began reporting increased migraine symptoms in March 2013; and Dr. Campanella did not know that Dr. Patel found Monahan to be disabled. (Doc. 13 p. 13-14). We find that this argument falls flat because Monahan does not point to any regulation or case law that requires a consultative examiner to evaluate other physician's opinions on a claimant's situation. Moreover, Dr. Campanella's opinion is dated less than one year prior to Monahan's allegations that the severity of her migraine symptoms increased. Aside from her allegations, Monahan does not point to any significant developments in the medical records that would render this opinion irrelevant. Therefore, the ALJ did not err in relying on Dr. Campanella's opinion.
Monahan further asserts that if the ALJ found that Dr. Patel's opinion was not supported by the evidence, the ALJ should have recontacted Dr. Patel for more information. (Doc. 13 p. 11). We are not persuaded by this argument because within the Third Circuit, it is clear that "an administrative law judge will need to recontact a treating physician . . . only where the evidence is insufficient or inadequate for the ALJ to make a determination regarding the claimant's disability." Morales v. Colvin, No. 3:14-CV-2330, 2016 WL 907743, at *11 (M.D. Pa. Mar. 2, 2016) (citing Johnson v. Commissioner of Social Security, 529 F.3d 198, 204-205 (3d Cir. 2008)). As this Court noted in Langston v. Colvin, there is no absolute duty incumbent on the ALJ to recontact a treating physician, indeed, 20 C.F.R. §404.1520b "rendered recontact permissive." No. 1:15-CV-1117, 2012 WL 4523843, at *1 n.1 (M.D. Pa. Aug. 30, 2016) (citing Morales v. Colvin, 2016 WL 907743, at *11)). 20 C.F.R. §404.1520b establishes that it is within the ALJ's discretion to choose whether recontact is necessary, or whether there is a better way to resolve inconsistency in the record. 20 C.F.R. §404.1520b(c)(1). Because Monahan points to no evidence of the ALJ abusing his discretion in this regard, we find that the ALJ did not err by deciding to not recontact Dr. Patel.
In sum, because the ALJ points to valid evidence in the record to support his rejection of Dr. Patel's opinion, we find that the ALJ did not err in weighing the opinion evidence.
b. The ALJ did not err in the formulation of the RFC with regard to Monahan's mental health.
Next, Monahan asserts that remand is warranted because the ALJ failed to assign great or significant weight to any opinion of record concerning Monahan's mental health. (Doc. 13 p. 15). Monahan argues that the case McKay v. Colvin, No. 3:14-CV-2020, 2015 WL 5124119 (M.D. Pa. Aug. 13, 2015), dictates that the ALJ must give significant weight to a medical opinion in formulating the RFC. (Doc. 13 p. 15). Monahan supports this argument by pointing to the case Morris v. Colvin, 3:16-CV-01878-MWB (M.D. Pa. Aug. 21, 2017), which cites to Reznick v. Colvin, No. 4:15-CV-01693, 2016 WL 5936893, at *4 (M.D. Pa. Oct. 12, 2016) ("McKay only requires that the ALJ give any significant or great weight to any medical opinion") (internal quotes omitted). (Doc. 13 p. 16).
Though Monahan is correct that McKay has been interpreted as stating that an ALJ must make an assignment of weight, we find it important to note that none of the cases to which Monahan refers, including McKay, are precedential or have been reported. But even if McKay were a precedential decision, the holding in that case does not actually require an ALJ to give significant or great weight to any medical opinion when formulating the RFC. Monahan quotes the language "give any significant or great weight to any medical opinion" as if it is a standard for formulating the RFC that the Court in McKay established. (Doc. 13 p. 16). However, that language is simply part of the Court's explanation in that case for why it questioned the basis of the ALJ's formulation of the RFC. McKay, No. 3:14-CV-2020, 2015 WL 5124119, at *17. The actual holding in McKay is that remand was warranted because the ALJ used her own lay opinion in formulating the plaintiff's RFC. The Court stated that:
the ALJ has failed to explain what medical opinion she relied on in determining Plaintiff's RFC because she did not give any significant or great weight to any medical opinion. Instead, the ALJ seemingly interpreted the medical evidence of record, and substituted her own opinion for that of a medical one in arriving at Plaintiff's RFC.Id.
We do not find that this language creates a rule requiring that an ALJ must always "give any significant or great weight to any medical opinion." We interpret this as only an explanation of why the Court found that without such an assignment of weight, the ALJ's explanation for rejecting a treating source medical opinion was deficient. The Court in McKay made no reference to any case law or regulations that require the ALJ to assign significant weight to any source in formulating the RFC. If anything, the Court simply emphasized long held precedent from Morales v. Apfel, 225 F.3d at 317-318 (an ALJ may not completely reject a treating physician's medical opinion based on the ALJ's own speculation or lay opinion), because the Court directly quotes it in support of its holding. McKay, No. 3:14-CV-2020, 2015 WL 5124119, at *17.
In the case at hand, it does not appear that the RFC assessment was based on the ALJ's own lay opinion. Though the ALJ does not give significant weight to any of the opinions on Monahan's mental health, we feel that there are various parts of the ALJ's decision which indicate that the ALJ based the RFC on the findings of treating psychologist Dr. Berger. This is because Dr. Berger's findings have been cited as evidence that indicates Monahan is not disabled due to her mental health by the ALJ in both of his decisions. We believe that when the ALJ's November 20, 2015 decision, along with the parts of his July 30, 2013 decision that were incorporated by reference, are read as a whole, it is apparent that the ALJ gave credit to Dr. Berger's opinion.
For example, in the ALJ's July 30, 2013 decision, he noted that the opinion of state reviewing psychologist Dr. Vizza is not supported by Dr. Berger's records concerning Monahan's mental health. (Tr. 103). Even though the ALJ did not state that Dr. Berger's findings were entitled to significant weight, the ALJ's reliance on such findings is bolstered by the ALJ's discussion of Dr. Berger at at Step Two of the same decision. There the ALJ prefaced his determination that Monahan is not disabled due to her mental health by noting that Dr. Berger's records documented significant improvement in Monahan's symptoms with treatment, and that she had GAF scores in the 60 range after the alleged onset date of disability. (Tr. 98).
Furthermore, the ALJ explained in his November 20, 2015 decision that the reason he found Monahan was not disabled due to her mental health was that the new treatment records obtained for review from Dr. Berger indicated that Monahan's symptoms were under control with medication. (Tr. 18). Moreover, the ALJ noted that these records "document no significant difficulties with memory or concentration and no other significant findings on mental status examination. Indeed, during this period, Dr. Berger assessed [Monahan's] GAF scores between 66 and 70." (Tr. 18). The ALJ also explained that such GAF scores indicate that Monahan's mental health symptoms only have a mild impact on her ability to work. (Tr. 18). We find that such positive and consistent references to Dr. Berger's findings indicate that the ALJ was relying on medical evidence in his decision and not simply making a judgment based on his own lay opinion.
Additionally, even if it were error for the ALJ to not assign great weight to any one opinion on Monahan's mental health, it would clearly be harmless error because Dr. Vizza found that Monahan is capable of working despite her mental health impairments (tr. 87-88), and as we discussed earlier, Dr. Berger's notes demonstrate that Monahan is highly functional. If the ALJ had given great weight to either opinion, the ALJ's finding that Monahan is not disabled would remain unchanged.
In sum, we find that the ALJ's decision clearly indicates that he based his RFC assessment on substantial evidence of record. He makes several references to Monahan's treating physician's findings in order to support his conclusion that Monahan is not disabled due to her mental health, and he provides adequate explanation for why he rejected the other findings on Monahan's mental health from the reviewing state psychologist. For these reasons, we conclude that the ALJ did not err in formulating the RFC with regard to Monahan's mental health. IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Deputy Commissioner of Social Security be AFFIRMED and that Monahan's requests for the award of benefits or remand for a new administrative hearing be DENIED.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge Dated: July 18, 2018 CATHERINE MONAHAN, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. NOTICE
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g), Nancy A. Berryhill is automatically substituted as the named defendant in place of the former Commissioner of Social Security. Due to the Federal Vacancies Reform Act, Former Commissioner of Social Security, Nancy A. Berryhill, is currently presiding as the Deputy Commissioner for Operations of the Social Security Administration, performing duties and functions not reserved to the Commissioner of Social Security. --------
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 18, 2018. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: July 18, 2018