Opinion
No. 4:18-cv-0323
12-19-2018
TAMICA M. MOON, Plaintiff, v. NANCY BERRYHILL, Deputy Commissioner For Operations of Social Security, Defendant.
(Brann, J.)
()
REPORT AND RECOMMENDATION
This is an action brought under Section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. §405(g) by reference), seeking judicial review of the Deputy Commissioner of Social Security's ("Deputy Commissioner") final decision denying Tamica M. Moon's ("Moon") claim for supplemental security income under Title XVI of the Social Security Act. This matter has been referred to the undersigned United States 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
On March 15, 2016, Moon protectively filed for Supplemental Security Income under Title XVI of the Social Security Act, alleging an onset date of disability of May 23, 2012. (Tr. 163). In her application, Moon reports that the following impairments prevent her from working: depression, anxiety, slight scoliosis, insomnia, and inability to stand or sit for long hours. (Tr. 188).
In Moon's brief and in the ALJ decision, March 15, 2016, is listed as the date of application for Moon's supplemental security income. (Doc. 9, at 2); (Tr. 17). However, Moon's actual application for supplemental security income is dated March 31, 2016. (Tr. 163). The Court will use the dates listed in the ALJ decision and Moon's brief. Additionally, at the hearing the ALJ and Moon discussed amending her alleged onset date to June 17, 2016. (Tr. 37). However, in Moon's brief, the Commissioner's brief, and the ALJ's decision the onset date of disability is listed as May 23, 2012. The Court will use the May 23, 2012, date. (Doc. 9, at 1); (Tr. 17, 37); (Doc. 10, at 3)
Moon's claim was initially denied on June 27, 2016. (Tr. 86). On August 25, 2016, Moon filed a timely request for an administrative hearing that was subsequently granted. (Tr. 91). With the assistance of counsel, Moon appeared and testified before Administrative Law Judge ("ALJ") Randy Riley on August 17, 2017, in Harrisburg, Pennsylvania. (Tr. 37). Impartial vocational expert ("VE"), Brian Bierley attended the hearing over the phone and testified at the hearing. (Tr. 37-49).
During the hearing, the ALJ asked Moon a series of questions about Moon's living conditions and daily activities. (Tr. 38-46). Moon testified that she has five children. (Tr. 39). She stated that she is living in a shelter with three of her children, and that the other "[t]wo are supposed to come soon" but "[t]hey're visiting their grandmother right now." (Tr. 38-39). Moon shared that she has been living at the shelter for "about three weeks." Id. at 43. She testified that her children aged four, five, and six-years-old have been living with her at the shelter, but that the older, ten and eleven- year-old children are with their dad's mother. (Tr. 44-45). Moon stated that she has to leave the shelter in a week, and that she is trying to figure out where to go after she leaves the shelter since she wants to stay in the area because the school district is providing one of her son's extra support in school. (Tr. 45).
When asked by the ALJ how she supports herself, Moon replied that "[m]y daughter receives disability, not sure if that'll continue or not. She was premature." (Tr. 39). Moon also stated that she receives "food stamps and medical assistance." Id. Moon testified that she received her GED, that she attended Kaplan University for six months, that she received her CPR and first aid certificates, that she can read and write in English, and has a driver's license. Id. at 39-41.
Moon further testified that she dresses herself but, she does not shower that often because of her mood and because she's "not really motivated to do many things." (Tr. 40). During the hearing, Moon stated that she cooks sometimes, that she shops as she has to do for her children— but that she tries to limit it, that she does the dishes when she needs to, that she does the laundry, and vacuums and sweeps at times. (Tr. 40). Moon further shared that she drives, that she takes her children to the park, that she reads to her children, and that she watches movies with her children, but said that she does not "play too much with them because physically [she's] not able to." (Tr. 41). Moon stated during the hearing that she tries to limit the amount of driving she does, "but due to [her] circumstances, [she] drive[s] a lot to try to help other people out so [she] can get some extra money." (Tr. 41).
Moon additionally testified that it hurts to stand in one position and that she "can't stand still for too much at all" and that she needs "to be in constant movement." (Tr. 42). She shared that she can sit for "maybe 20 minutes" before needing to get up and can walk "maybe a block or two" before needing to sit down. Id. at 41-42. Moon stated that she does not lie down or take a nap during the daytime because she "really [doesn't] have too much time." (Tr. 42). She testified that she drinks alcohol at times, that she smokes half a pack of cigarettes a day, and that she stopped using marijuana and PCP "maybe two months or so" ago. (Tr. 43). She stated that she worries a lot, that she doesn't "get things done that [she] need[s] to get done," that her mood on a daily basis is "not too good," that she's down "quite often," that she receives mental health therapy at the shelter, and that she typically gets four hours of sleep a night. (Tr. 44-46). Additionally, Moon testified that "[a] lot of [her] life [she's] been talked down [to] a lot so because of the way I've been talked to, it kind of—probably had a lot of effect on how I feel about myself." (Tr. 46).
Moon is an adult individual born on March 24, 1984. (Tr. 38). Moon was 33 years old at the time of the hearing, which is defined as a "younger individual age 18-49" under the Social Security Act. (Tr. 38); see 20 C.F.R. § 416.963(c).
In a written decision dated September 7, 2017, the ALJ denied Moon's application for Supplemental Security Income. (Tr. 29). Moon appealed the ALJ's decision to the Appeals Council, but the Appeals Council denied Moon's request for review on December 19, 2017. (Tr. 1). Moon filed a complaint on February 8, 2018. (Doc. 1). In her complaint, Moon asserts that the final decision of the Commissioner is not supported by substantial evidence and is based on the incorrect application of the law. (Doc. 1, at 3).
On April 20, 2018, the Commissioner filed an answer to Moon's complaint. (Doc. 7). In her answer, the Commissioner maintains that the decision denying Moon's application for benefits is correct, is made in accordance with the law and regulations, and is supported by substantial evidence. Id. at 4. This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 10, 11). 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); 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 Title XVI of the Social Security Act, 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).
Throughout this Report, the Court cites to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on September 7, 2017.
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. An 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); 20 C.F.R. § 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 from engaging in any of his or her past relevant work. 20 C.F.R. § 416.912(a); Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, the burden then 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(b)(3); Mason, 994 F.2d at 1064.
On March 27, 2017, 20 C.F.R. § 416.912(f) was redesignated as 20 C.F.R. § 416.912(b)(3).
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. § 416.927(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. § 416.927(c).
In deciding what weight to accord competing medical opinions, the ALJ is guided by factors outlined in 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. § 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. § 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. § 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. The ALJ's Decision
In his September 7, 2017, decision denying Moon's claim, the ALJ evaluated Moon's application for benefits at each step of the sequential process. (Tr. 18-29). At step one, the ALJ found Moon had not engaged in substantial gainful activity since the application date of March 15, 2016. (Tr. 19). At step two, the ALJ found that Moon had the following severe impairments: schizophrenia, bipolar disorder, depressive disorder, panic disorder, and anxiety disorder. (Tr. 20). At step three, the ALJ found that Moon 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. 20).
Between steps three and four, the ALJ assessed Moon's RFC (Tr. 20-27). The ALJ found that Moon had the RFC to perform:
a full range of work at all exertional levels but with the following non-exertional limitations: the claimant is limited to performing simple, routine, repetitive tasks in a work environment free from fast paced production requirements and involving only simple work related decisions with few, if any work place changes, no interaction with the public, occasional interaction with coworkers but no tandem tasks, and occasional interaction with supervisors. (Tr. 22).
At step four, the ALJ found that Moon had no past relevant work (Tr. 27). The ALJ explained in his decision that the "[e]arnings records indicate that [Moon] has never worked at substantial gainful activity levels." (Tr. 28). ). The ALJ also found that Moon had at least a high school education and that she was able to communicate in English. Id.
At step five, the ALJ determined based on Moon's age, education, work experience, and RFC that there are a significant number of jobs in the national economy that Moon can perform including a conveyor line worker, a line operator, and a machine feeder. (Tr. 28). Thus, the ALJ found Moon not disabled. (Tr. 29).
There are 81,000 positions available in the national economy. (Tr. 28).
In the national economy there are 49,000 positions available. Id.
There are 61,000 jobs available in the national economy. Id.
IV. Analysis
Moon asserts four claims of error. (Doc. 9, at 1). Moon claims that: (1) substantial evidence does not support the ALJ's step two evaluation; (2) substantial evidence does not support the ALJ's RFC assessment; (3) the ALJ failed to properly evaluate Moon's symptoms; and (4) the ALJ erred in evaluating the opinion evidence. Id. We shall address each argument seriatim.
a. Substantial Evidence Supports the ALJ's Step Two Findings
Moon asserts that the ALJ erred in not finding her neck pain, back pain, and obesity as severe impairments. (Doc. 9, at 6). 20 C.F.R. § 416.920(a)(4)(ii) requires the ALJ to consider in step two whether a claimant's impairments are (1) medically determinable; and (2) severe or non-severe. According to SSR 96-3p, an impairment "is considered severe if it significantly limits an individual's physical or mental abilities to do basic work" and is considered non-severe if it is a "slight abnormality that has no more than a minimal effect on the ability to do basic work activities. SSR 96-3p WL 374181 at *1 (S.S.A. 1996). At step two of the sequential evaluation process Moon has the burden of proving that her listed impairments are severe. See Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 144 (3d Cir. 2007) (explaining how in step two of the process the burden falls on the claimant to demonstrate that an impairment is severe).
The Court is aware that SSR-96-3p was rescinded on June 14, 2018. The regulation was still in effect at the time of the ALJ's decision for Moon on September 7, 2017.
Moon claims that her impairments of neck pain, back pain, and obesity "are significant enough to affect [Moon's] ability to perform basic work activities" and that the ALJ should have found these impairments severe because they are more than slight abnormalities. (Doc. 9, at 7-8). However, in step two of the sequential evaluation process, a claimant must only prove that one severe impairment exists to move forward in the process. See Traver v. Colvin, No. 3:16-CV-178, 2016 WL 5719932, at *10 (M.D. Pa. Oct. 3, 2016) (discussing how step two of the process is a threshold analysis because a claimant must only show one severe impairment to move to step three). Consequently, the Third Circuit has found that when an ALJ finds even one impairment to be severe at step two that the plaintiff has met the threshold for step two, "the sequential evaluation process continues, and any impairment that is found to [be] non-severe is harmless error because the ALJ still has to consider all impairments, both severe and non-severe, in the RFC analysis." Sachs v. Colvin, No. 3:15-CV-1725, 2017 WL 1134367, at *10 (M.D. Pa. Mar. 27, 2017).
Therefore, even if the ALJ should have found that Moon's neck pain, back pain, and obesity were severe impairments at step two, remand is not applicable here because the ALJ identified severe impairments for Moon at step two of the process, so any error on the ALJ's part regarding Moon's non-severe impairments is harmless error. See Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 145 (3d Cir. 2007) (explaining that "[b]ecause the ALJ found in [the claimant's] favor at step two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless"); Shedden v. Astrue, No. 4:10-CV-2515, 2012 WL 760632, at *9 (M.D. Pa. Mar. 7, 2012) (stating that "[a] failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two"). In this case, the ALJ found at step two that Moon had severe impairments of schizophrenia, bipolar disorder, depressive disorder, panic disorder, and anxiety disorder. (Tr. 19). Therefore, even if incorrect, the ALJ's finding that Moon's additional impairments were non-severe is harmless error not applicable for remand. Salles, 229 Fed. App'x at 145.
b. Whether Substantial Evidence Supports the ALJ's RFC
Moon claims that substantial evidence does not support the ALJ's RFC assessment. (Doc. 9, at 9). A claimant's RFC assessment is a reflection of the most a claimant can still do despite the limitations resulting from his or her medically determinable severe and non-severe impairments. 20 C.F.R. § 416.945. Moon argues that "the ALJ failed to account for [Moon's] neck and back pain and obesity." (Doc. 11, at 2). Moon claims that it is "the ALJ's responsibility to consider the effect of both severe and non-severe impairments on a claimant's ability to perform past work or other work." (Doc. 9, at 9). Moon is correct that in formulating an RFC, the ALJ must consider all of a claimant's medically determinable impairments which are severe and non-severe. 20 C.F.R. § 416.923. Here, Moon argues that in finding that she is capable of performing work at all exertional levels, the ALJ failed to take into account the impact that Moon's non-severe impairments have on Moon's ability to perform work. (Doc. 9, at 9). In support of her claim, Moon points to the opinion evidence of consultative examining physician, Dr. Long from December 2015, which opines that Moon can walk fifteen minutes, sit thirty minutes, and stand ten minutes at one time without interruption. (Tr. 333) Dr. Long further states that within an eight-hour day, Moon is only able to stand a total of thirty minutes, and walk a total of forty-five minutes. Id. Additionally, Dr. Long opines that Moon is able to lift and carry up to ten pounds frequently, eleven to twenty pounds occasionally, and is never able to carry or lift anything that weighs twenty-one pounds or heavier. (Tr. 332).
However, the ALJ explained in his decision that he afforded limited weight to Dr. Long because: (1) Dr. Long's opinion "is inconsistent with the evidence during the period at issue"; (2) Dr. Long's opinion is outside of his specialty of urology; (3) the images of Moon's cervical and lumbar spine during the relevant time period are unremarkable; and (4) the "record shows that [Moon's] treatment for her back pain was limited to only a few sessions of physical therapy in June and July of 2016." (Tr. 27). Thus, the ALJ considered Dr. Long's opinion regarding Moon's non-severe impairments, but ultimately determined based on the evidence in the record to allot Dr. Long's opinion little weight for the reasons the ALJ provides. (Tr. 27).
It is within the authority of the ALJ to assign little weight to a medical opinion, and remand is appropriate in such instances when "the ALJ fails to adequately explain his or her reasons for rejecting relevant evidence." Aitkins v. Berryhill, No. 3:16-CV-02110, 2018 WL 1163042, at *7 (M.D. Pa. Feb. 15, 2018), report and recommendation adopted , No. 3:16CV2110, 2018 WL 1158253 (M.D. Pa. Mar. 5, 2018). Here, the ALJ explains the reasons why he affords Dr. Long's opinion limited weight. (Tr. 27).
It is the responsibility of the ALJ to review and consider the claimant's medical evidence when formulating a claimant's RFC. Cummings v. Colvin, 129 F. Supp. 3d 209, 215 (W.D. Pa. 2015). In this case, the ALJ reviewed the medical evidence related to Moon's obesity, neck pain, and back pain and determined that Moon was capable of performing work at all exertional levels provided that further restrictions related to Moon's non-exertional limitations be included in the RFC. (Tr. 28).
Moon claims that the ALJ erred in failing to consider and adequately explain "the combined impact of [Moon's] obesity [on] her other impairments" such as her neck pain, back pain, and depression. (Doc. 9, at 11). As Moon points out, and SSR 02-1p explains, obesity may "cause or contribute to mental impairments such as depression" and to a claimant's physical impairments. SSR 02-1p WL 34686281 at *3 (S.S.A. 2002). However, SSR 02-1p also explains that "[o]besity in combination with other impairments" will not necessarily "increase the severity or functional limitations" of a claimant's other impairments, that "assumptions about the severity or functional effects of obesity combined with other impairments" will not be made, and that each case will be evaluated "based on the information in the case record." SSR 02-1p WL 34686281 at *5 (S.S.A. 2002).
Here, the ALJ finds Moon's obesity to be a non-severe impairment, because the record shows: (1) that Moon's "obesity is only mild with a Body Mass Index (BMI) in the low 30s"; (2) "that [Moon] has not received any specific treatment regarding her weight"; and (3) that at Moon's "intake appointment with her case manager in November of 2016, [Moon] reported that her weight was under control." (Tr. 20). Additionally, the ALJ states that "even if [Moon's] physical impairments did more than minimally affect her ability to perform basic work activities, the jobs noted at step five of the sequential evaluation more than account for any such limitations as they are all generally performed at the light exertional level." (Tr. 20).
In steps one through four of the sequential evaluation process, the burden is on the claimant to prove that he or she is disabled. Here, Moon does not show how her obesity renders her disabled. (Doc. 9, at 11). Stating that one is obese without pointing to any evidence on how that obesity is causing one to be unable to perform gainful employment is not enough to necessitate a remand. See Woodson v. Comm'r Soc. Sec., 661 Fed. App'x 762, 765 (3d Cir. 2016). (illustrating how speculation alone regarding obesity's potential effects is insufficient for remand).
In Woodson v. Comm'r Soc. Sec., 661 Fed. App'x 762, 765 (3d Cir. 2016) where the claimant "simply speculates about how his obesity might exacerbate other impairments" but "never points to specific medical evidence in the record to demonstrate that his obesity, in combination with other impairments, is sufficiently disabling" the Court stated that since the claimant "never explains how, even if the ALJ's analysis was lacking, the deficiency was harmful to [the claimant's] claims." The Court in Woodsonfurther explained that the claimant's vague assertion that a discussion of his impairments by the ALJ would result in the conclusion that the claimant was disabled was unconvincing since the claimant did "not affirmatively [point] to specific evidence that demonstrates [the claimant] should succeed at step three" and that consequently "any error would be harmless." Id.
Additionally, the Supreme Court in Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 1706, 173 L. Ed. 2d 532 (2009) discussed how "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." See also Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (explaining how the Court found remand unnecessary when the claimant failed to specify how her obesity "would affect the five-step analysis undertaken by the ALJ, beyond an assertion that her weight makes it more difficult for her to stand, walk, and manipulate her hands and fingers"). Therefore, even if the ALJ's discussion and explanation of Moon's obesity and its combined impact on Moon's neck pain, back pain, and depression is lacking, it is harmless error because Moon fails to assert how her obesity renders her disabled or would change the outcome of the decision.
Next, Moon argues that the ALJ did not properly account for Moon's moderate restrictions in concentration, persistence, or pace in the RFC and that "the ALJ failed to include this limitation in questioning the vocational expert." (Doc. 9, at 10). Third Circuit precedent requires an ALJ to "include restrictions specific to non-exertional limitations, including concentration, persistence, and pace" in the RFC, and the hypothetical presented to the vocational expert. McCall v. Colvin, No. CV 13-4770, 2015 WL 9302929, at *9 (E.D. Pa. Dec. 22, 2015); Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002); see Gray v. Colvin, No. 3:13-CV-01944-GBC, 2014 WL 4536552, at *11 (M.D. Pa. Sept. 11, 2014) (discussing how the "Third Circuit has specifically addressed the need to include limitations in concentration, persistence, and pace in an RFC assessment or VE hypothetical"). Yet, the "'[c]ase law in this circuit makes clear that a restriction limiting an individual, e.g., to 'simple, routine tasks' or 'unskilled work,' is sufficient to accommodate moderate limitations in concentration, persistence and pace."' Id; Shaffer v. Colvin, No. Civ. A. 13-925, 2014 WL 4925067, at *5 (W.D. Pa. Sept. 30, 2014) (emphasis in original) (citing Parks v. Comm'r of Soc. Sec., 401 Fed. App'x 651, 655-56 (3d. Cir. 2010).
In support of her claim, Moon cites Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004). In Ramirez, where the claimant suffered from deficiencies in concentration, persistence, and pace, the Court found the simple task limitations the ALJ posed to the vocational expert in the hypothetical insufficient, and remanded the case so the ALJ could present to the vocational expert a hypothetical that "adequately captured and recited all of Ramirez's mental impairments and the limitations caused by those impairments." Ramirez, 372 F.3d at 555.
However, subsequent cases from Ramirez, have found that less restrictive limitations suffice. See Menkes v. Astrue, 262 Fed. App'x 410, 412-13 (3d Cir. 2008) (holding that a limitation for simple and routine tasks sufficiently accounts for moderate concentration, persistence, or pace limitations); McDonald v. Astrue, 293 Fed. App'x 941, 946 (3d Cir. 2008). In this case, the ALJ includes in both the hypothetical proposed to the vocational expert, and in Moon's RFC limitations to perform "simple, routine, repetitive tasks in a work environment free from fast paced production requirements and involving only simple work-related decisions with few, if any, workplace changes." (Tr. 22, 48). Therefore, contrary to Moon's claims, the ALJ has satisfactorily included in both the hypothetical to the vocational expert and Moon's RFC, restrictions which account for Moon's moderate limitations in concentrating, persisting, or maintaining pace. (Tr. 21).
Additionally, Moon does not identify any specific limitations related to concentration, persistence, or pace that the ALJ failed to account for in the RFC. See Durden v. Colvin, 191 F. Supp. 3d 429, 459 (M.D. Pa. 2016) (explaining that the plaintiff cannot just state that since "the ALJ found Plaintiff to have [a] moderate limitation in concentration, persistence, and pace, [that] the RFC was automatically incomplete" and pointing out how the plaintiff failed "to perform the extra analysis required by Ramirez to indicate she had 'clearly established in the record additional, specific deficiencies in concentration, persistence and/or pace that could not be adequately conveyed' by the hypothetical") (quoting Santiago-Rivera v. Barnhart, No. CIV.A. 05-5698, 2006 WL 2794189, at *11 (E.D. Pa. Sept. 26, 2006)). Consequently, remand is unwarranted in this case.
Moon further argues that "the regulations require that an ALJ must identify some record basis to support the functional capacity finding." (Doc. 9, at 9). The Commissioner states that "[d]espite [Moon's] contention, the ALJ fully considered all of the record evidence and assessed [Moon] with a restrictive RFC that accounted for her credibly-supported functional limitations" and that "[i]n doing so, the ALJ discussed the pertinent examination findings, opinion evidence, and subjective complaints relating, specifically, to [Moon's] mental impairments and obesity in accordance with the regulations and Third Circuit case law." (Doc. 10, at 19). Here, the ALJ explains how he considered the record as a whole and took into account the medical opinion evidence, Moon's symptoms, Moon's testimony, Moon's mother's testimony, and the vocational expert's testimony when formulating Moon's RFC. (Tr. 22-27). Consequently, the Court finds that the ALJ has identified a record basis to support his RFC determinations, and that there is substantial evidence to support the ALJ's RFC findings.
c. Whether the ALJ erred in Evaluating the Medical Opinion Evidence
Moon asserts that the ALJ erred in evaluating the opinion evidence of consultative examining psychologist Dr. Gipe, State Agency psychological consultant, Dr. Ondis, and consulting psychologist, Dr. Kime. (Doc. 9, at 14-16). ALJs have the authority to assign weight to medical opinions entered into the record. See Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014) (discussing how "the ALJ is free to accept some medical evidence and reject other evidence, provided that [the ALJ] provides an explanation for discrediting the rejected evidence"). In this instance, the ALJ assigns significant weight to both Dr. Ondis and Dr. Kime, and partial weight to Dr. Gipe. (Doc. 9, at 14-15).
Moon avers that the ALJ erred in affording significant weight to State Agency psychologist, Dr. Ondis because Dr. Ondis "is a non-treating, non-examining source" (Doc. 9, at 14). Moon states that "[w]ithout support from independent clinical findings, the opinion of a non-examining physician may not be viewed as substantial evidence to support the ALJ's [RFC] determination." (Doc. 9, at 14). However, ALJs have the discretion to assign greater weight to medical opinions from non-examining physicians over those of examining or treating physicians. See Jackson v. Colvin, No. 3:13-00886, 2014 WL 4955231, at *9 (M.D. Pa. Sept. 30, 2014) (clarifying that "[w]hen the treating physician's opinion conflicts with a non-treating, non-examining physician's opinion, the [ALJ] may choose whom to credit in his or her analysis") see also Morris v. Colvin, No. 3:14-1902, 2015 WL 7252524, at *5 (M.D. Pa. Nov. 17, 2015) (explaining that examining medical opinions do not inherently outweigh non-examining medical opinions and that under certain conditions medical opinions from non-examining medical consultants may garner more weight than examining or treating medical sources medical opinions).
Here, the ALJ stated that Dr. Ondis "is a highly trained psychologist," that "his opinion is within the realm of his expertise," and that he "is familiar with the specific requirements of our disability program." (Tr. 26). The ALJ further explained that Dr. Ondis's opinion "is consistent with the longitudinal medical record as a whole, which shows that aside from two brief psychiatric hospitalizations for side-effects of using PCP, [Moon] has received only limited treatment for her mental impairments." (Tr. 26). Thus, the ALJ provides substantial evidence and adequately explains his weighing of Dr. Ondis's opinion evidence.
Next, Moon argues that the ALJ erred in assigning significant weight to consulting psychologist, Dr. Kime's December 2015, opinion because it was rendered prior to Moon's alleged onset date. (Doc. 9, at 15). However, according to Moon's brief, the Commissioner's brief, and the ALJ decision Moon's alleged onset date is May 23, 2012. (Tr. 17); (Doc. 9, at 1); (Doc. 10, at 3). Further, Moon does not cite to any cases, regulations, or statutes to support her claim, nor does Moon state any other reasons to object to the weighing of Dr. Kime's opinion other than the date when it was created. (Doc. 9, at 15). In response to Moon's argument, the Commissioner points to the explanation the ALJ provided in his decision for the significant weight the ALJ assigned to the opinion of State Agency psychological consultant, Dr. Garito. (Doc. 10, at 26-27). The ALJ explained that even though Dr. Garito's opinion took place before the "period at issue" that the ALJ found that "the evidence received since [Dr. Garito's] opinion was rendered indicates [Moon's] mental treatment and limitations have remained essentially the same except for one brief hospitalization in July of 2017 for side effects from using PCP." (Tr. 26). The Commissioner claims that "the ALJ used this same rationale in evaluating Dr. Kime's opinion" which immediately follows Dr. Garito's in the ALJ's decision. (Doc. 10, at 27).
As previously stated, during the hearing Moon requested an amended alleged onset date of June 17, 2016 which the ALJ noted. (Tr. 37-38). However, Moon's brief, the Commissioner's brief, and the ALJ decision all list May 23, 2012 as the alleged onset date. (Tr. 17); (Doc. 9, at 1); (Doc. 10, at 3). Therefore, the Court will use the May 23, 2012 date.
Moon's application for Supplemental Security Income, alleging an onset date of May 23, 2012 was filed on March 15, 2016. (Tr. 17). The ALJ's decision "concludes [Moon] has not been under a disability within the meaning of the Social Security Act since March 15, 2016, the date the application was filed." (Tr. 18). --------
Regardless, an ALJ is not prevented from considering or weighing evidence in the record that took place before the amended alleged onset date. See McKean v. Colvin, 150 F. Supp. 3d 406, 414 (M.D. Pa. 2015) (discussing how the ALJ "is not barred from using evidence from a prior claim" nor "obligated to find evidence prior to the [alleged] onset date to be relevant or probative").
Lastly, Moon asserts that the ALJ erred in assigning partial weight to consulting psychologist, Dr. Gipe's opinion and for rejecting Dr. Gipe's opinion that Moon "had marked social limitations." (Doc. 9, at 15). In his decision the ALJ explained that he accepted Dr. Gipe's opinion that Moon has "mild limitations performing simple tasks and moderate limitations performing complex tasks" but "rejects Dr. Gipe's opinion that [Moon] has marked social limitations as that opinion is inconsistent not only with [Dr. Gipe's] own detailed clinical findings but with the longitudinal record as a whole." (Tr. 27).
Moon claims that "the record contains supportive signs and symptoms [such as] depressed mood, agitation, sleep difficulties, feelings of hopelessness, helplessness and guilt, low energy and motivation and anhedonia" to support Dr. Gipe's opinion that Moon has marked social limitations. (Doc. 9, at 15). However, in the decision the ALJ discussed how Dr. Gipe's opinion is inconsistent with his own clinical findings because "Dr. Gipe's mental status examination shows that [Moon] was cooperative, fully oriented, dressed appropriately, and well-groomed with normal motor behavior, appropriate eye contact, normal speech, a neutral mood, a full affect, and coherent thought processes." (Tr. 27). Additionally, the ALJ explained that "the longitudinal record shows that despite [Moon's] mental impairments, [Moon] lives with and cares for her five young children, drives, shops, attends school events for her children, goes to church, goes to the library, goes to the American Legion, and even did a short media announcement for the Harrisburg School District at the Appreciation of Arts Festival." (Tr. 27).
Moon contends that the ALJ should have re-contacted Dr. Gipe for "clarification regarding [Moon's] functional limitations" since the ALJ found that Dr. Gipe's opinion that Moon has marked social limitations is inconsistent with Dr. Gipe's "own detailed clinical findings [and] with the longitudinal record as a whole." (Doc. 11, at 6); (Tr. 27). However, in Iturralde v. Berryhill, No. 3:16-CV-01597, 2018 WL 1465273, at *6 (M.D. Pa. Mar. 1, 2018), report and recommendation adopted, No. 3:16-CV-1597, 2018 WL 1453181 (M.D. Pa. Mar. 23, 2018) where the claimant argued that the ALJ was required to contact the claimant's doctor if the ALJ had any question about the doctor's opinion, the Court stated that "it is within the ALJ's discretion to decide whether he needed explanation from [the doctor] in order to make his decision." Additionally the Court in Iturralde found "that the ALJ did not err in deciding not to contact [the doctor]" or in allocating little weight to the doctor's opinion because the ALJ "explained and supported his reasoning in according [the doctor's] opinion little weight with substantial evidence in the record." Iturralde v. Berryhill, No. 3:16-CV-01597, 2018 WL 1465273, at *6 (M.D. Pa. Mar. 1, 2018), report and recommendation adopted, No. 3:16-CV-1597, 2018 WL 1453181 (M.D. Pa. Mar. 23, 2018). Here, the ALJ fully explained, as recounted above, why he found Dr. Gipe's opinion inconsistent "not only with [Dr. Gipe's] own detailed clinical findings but with the longitudinal record as a whole." (Tr. 27).
The ALJ in this instance is according less weight to Dr. Gipe because the ALJ found Dr. Gipe's opinion inconsistent with the record. Therefore, there is no duty on the part of the ALJ to recontact Dr. Gipe. See Williams v. Astrue, No. 10-CV-499S, 2012 WL 1114052, at *3 (W.D.N.Y. Mar. 30, 2012) (discussing how "[t]he duty to recontact arises only where an ALJ lacks sufficient evidence to evaluate opinion evidence or make a disability determination"). We find that in this case, there was no obligation on the part of the ALJ to recontact consultative examining psychologist, Dr. Gipe, and that the ALJ's evaluation of the opinion evidence is supported by substantial evidence.
d. Whether the ALJ Appropriately Considered Moon's Subjective Symptoms
Moon argues that the ALJ failed to properly evaluate Moon's subjective symptoms because "the ALJ used the wrong legal standard in evaluating [Moon's] symptoms" and maintains that "[t]he correct standard that the ALJ should have applied is the preponderance of the evidence standard." (Doc. 9, at 11-12). Moon contends that "the ALJ must determine if a preponderance of the evidence supports the claim and not if the claim is "entirely consistent" or supported by strong evidence" and cites 20 CFR § 404.953(a). Id. When evaluating a claimant's symptoms, the ALJ utilizes a two-step process. SSR 16-3P WL 119029 (S.S.A. Mar. 16, 2016).
First, the ALJ must determine whether there is a medically determinable impairment, that can be shown by medically acceptable clinical and laboratory diagnostic techniques, that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 416.929(b). An individual will not be found to be "disabled based on alleged symptoms alone." See SSR 16-3P WL 119029 at *4 (explaining that "[i]f there is no medically determinable impairment, or if there is a medically determinable impairment, but the impairment(s) could not reasonably be expected to produce the individual's symptoms" those symptoms will not be found to affect the claimant's "ability to perform work-related activities"). Under SSR 16-3p, once the ALJ has found that a medically determinable impairment is established, the ALJ then evaluates the claimant's allegations about the intensity, persistence, or functionally limiting effects of her symptoms against the evidence of record. SSR 16-3p, 2016 WL 1119029, at *4. This evaluation requires the ALJ to examine the entire record, including objective medical evidence, the plaintiff's testimony, and any other relevant evidence. Id.
On March 28, 2016, Social Security Ruling 96-7p, which provided guidance on assessing the credibility of a claimant's subjective symptoms, was rescinded and superseded by SSR 16-3p, which instructs adjudicators when "determining whether an individual is disabled" to "consider all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record." SSR 16-3p, 2016 WL 119029, at * 2 (S.S.A. Mar. 16, 2016). Thus, the ALJ's finding that Moon's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but that "the statements of [Moon] and her mother concerning the intensity, persistence, and limiting effects of [Moon's] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision" is directly in line with the guidance supplied in SSR 16-3p. (Tr. 24); SSR 16-3p, 2016 WL 119029 at *2 (S.S.A. Mar 16, 2016). Therefore, the Court finds that the ALJ applied the correct relevant law in his evaluation of Moon's subjective symptoms.
Moon additionally contends that the ALJ: (1) should have questioned Moon about her gap in treatment; (2) should not have used Moon's post-onset work to undermine her allegations; and (3) should not have "referred to [Moon's] daily activities to undermine the severity of her symptoms." (Doc. 9, at 13). Moon asserts that because the ALJ explained in his decision how he took into account how Moon has "received only sporadic therapy and medication management through the Youth Advocates program," that Moon has "earnings records [that] show that [Moon] was hired to work in October of 2016, and March of 2017," and Moon's stated daily activities all as supporting evidence of the inconsistencies between Moon's subjective symptoms and subjective complaints of pain and the record, that the ALJ has erred in using this evidence from the record to Moon's detriment. (Doc. 9, at 13). However, when evaluating a claimant's subjective symptoms including pain, the ALJ is to consider various factors such as a claimant's daily activities, any treatment, other than medication, that a claimant has received for relief of pain or other symptoms, and "any measures [a claimant] use[s] or [has] used to relieve [a claimant's] pain or other symptoms," to "determine the extent to which symptoms, such as pain, affect [a claimant's] capacity to perform basic work activities." 20 CFR § 404.1529.
Therefore, we are not persuaded by Moon's contentions that "post-onset work does not preclude [Moon] from establishing she was disabled," or that "a claimant 'need not be completely bedridden or unable to perform any household chores to be considered disabled."' Neither are we persuaded that the ALJ should have questioned Moon on her "gap in treatment" before utilizing such information in the ALJ's decision. (Doc. 9, at 13); 20 CFR § 404.1529.
While, social security hearings are non-adversarial and ALJs are to help claimants in developing the record, the burden of proving that one is disabled in steps one through four of the sequential evaluation process is on the claimant, not the ALJ. See Durden v. Colvin, 191 F. Supp. 3d 429, 449-50 (M.D. Pa. 2016) (the claimant has the burden "to develop the record regarding his or her disability because the claimant is in a better position to provide information about his or her own medical condition"). Thus, the ALJ did not err in not questioning Moon on her gap in treatment. Moreover, the ALJ is not using any one of these singular pieces of evidence which Moon is contesting definitively, but instead is collectively considering the record as a whole to evaluate the consistency of Moon's subjective symptoms with the record as advised by SSR 16-3p and 20 CFR 404.1529.
Moon is correct that one must not be bedridden to qualify for disability. See Smith v. Califano, 637 F.2d. 968, 971 (3rd Cir. 1981) that "[d]isability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity." Yet, here, the ALJ's explanation that Moon's "wide range of activities of daily living suggests greater functional ability than [Moon's] allegations of disabling symptoms convey" is relevant because it highlights the inconsistencies between Moon's subjective symptoms and the record as a whole. See Tr. 25-26 (describing how Moon "is able to care for her five young children, care for her dog, care for her ferrets, prepare meals, wash dishes, do laundry, drive, shop, watch movies with her children" and how Moon can take her children to the park, school, and appointments, as well as "read to her children, attend church, go to the library and the American Legion, independently handle her finances, including food stamps and medical assistance, and has been able to take classes at Kaplan University and obtain her CPR and first aid certifications"). Therefore, the Court finds that the ALJ has conducted his evaluation of Moon's subjective symptoms using the correct application of the law and that there is substantial evidence to support the ALJ's findings.
After considering all the issues detailed above, the Court finds that the ALJ correctly applied the relevant law and that there is substantial evidence to support the ALJ's decision to deny Moon's application for Supplemental Security Income. V. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Deputy Commissioner of Social Security be AFFIRMED and that Moon'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: December 19, 2018 NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 19, 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: December 19, 2018