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affirming ALJ decision where subjective symptom analysis supported by substantial evidence
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CASE NO. 3:17-cv-01875-MEM-GBC
03-12-2019
TOD CORY ROTH, Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Tod Cory Roth ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A).
The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In cases involving a continuing disability review ("CDR"), entitlement to benefits will be reviewed periodically. 20 C.F.R. §§ 404.1594, 416.994 (effective August 24, 2012 to March 26, 2017). A beneficiary is no longer entitled to benefits where his or her medical condition improves to the extent that he or she can engage in substantial gainful activity. See, 20 C.F.R. §§ 404.1594, 416.994; Steele v. Berryhill, No. CV 17-743, 2018 WL 2240139, at *1 (W.D. Pa. May 16, 2018). Medical improvement is defined as "any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s)." 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i) (effective August 24, 2012 to March 26, 2017). The Court in Pearson v. Berryhill, notes that medical improvement steps "incorporates much of the familiar five-step sequential analysis for an initial disability application, but adds some intermediate steps specifically directed to the issue of whether there has been a medical improvement, making eight steps in all." Pearson v. Berryhill, No. CV 17-6211 (KM), 2018 WL 6696794, at *2-3 (D.N.J. Dec. 19, 2018) (citing to 20 C.F.R. § 404.1594(f)). The eight steps for determining medical improvement in in cases were benefits were obtained through Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 ("Act"):
(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.
(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature. If so, you will no longer be considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, we will assess your residual functional capacity based on all your current impairments and
consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended.20 CFR § 404.1594(f)(1)-(8)).
(8) If you are not able to do work you have done in the past, we will consider whether you can do other work given the residual functional capacity assessment made under paragraph (f)(7) of this section and your age, education, and past work experience (see paragraph (f)(9) of this section for an exception to this rule). If you can, we will find that your disability has ended. If you cannot, we will find that your disability continues.
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
II. PROCEDURAL HISTORY
In a Social Security benefits decision dated September 3, 2009, Plaintiff was found disabled as of October 18, 2008, due to cervical and lumbar disc disease. (Tr. 84-92). On April 2, 2015, it was determined that the claimant was no longer disabled as of April 1, 2015. (Tr. 98-100). After Plaintiff's request for reconsideration was denied (Tr. 112-23), he requested and received a hearing with an Administrative Law Judge ("ALJ"). (Tr. 47-81). On May 23, 2016, the ALJ issued a decision (Tr. 12-29) finding as of April 1, 2015, Plaintiff has the residual functional capacity ("RFC") to perform a range of light work with certain restrictions, including avoiding unprotected heights, never climbing ladders, ropes, or scaffolds, occasionally climbing ramps and stairs, having no more than occasional exposure to extreme cold temperatures, wetness, or vibration, and being permitted to alternate sitting and standing every 60 minutes to change position. (Tr. 18). The ALJ concluded Plaintiff's disability ended as of April 1, 2015, and the disabled status was not re-established through the date of the May 23, 2016, decision. (Tr. 25). The Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-6).
On October 13, 2017, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On December 11, 2017, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 6, 7). January 25, 2018, Plaintiff filed a brief in support of the appeal. (Doc. 7) ("Pl. Br."). On March 23, 2018, Defendant filed a brief in response. (Doc. 10) ("Def. Br.").
III. Issues on Appeal
On appeal, Plaintiff argues substantial evidence does not support the ALJ's decision Plaintiff was not disabled. Pl. Br. at 2. Plaintiff argues the ALJ erred in the allocation of weight to the treating physician opinion and the ALJ's assessment of Plaintiff's credibility. Pl. Br. at 6-8.
IV. Facts in the Record
Since the ALJ fully developed the record and the parties have adequately articulated Plaintiff's medical history in their briefs, the Court will only summarize the relevant facts to provide context to Plaintiff's impairments and address the issues raised. --------
A. Background
Plaintiff was born in January 1967 and thus is classified by the regulations as a younger individual at the date medical improvement, April 1, 2015. (Tr. 23, 149); 20 C.F.R. §§ 404.1563(c), 416.963(c).
B. Medical Opinions
1. Consultative Examination on March 6, 2015 with Frank Zimba, M.D.
On March 6, 2015, Plaintiff was examined by Dr. Zimba. (Tr. 277-90). Dr. Zimba noted the Plaintiff walked with a normal gait without the use of an assistive device, was able to walk on heels and toes without difficulty, able to make a full squat, able to get on and off the examination table and rise from a chair without difficulty. (Tr. 278). Dr. Zimba also noted Plaintiff reported only "ibuprofen 800 mg [three times a day]" as his "current medication." (Tr. 278). Straight-leg raising test was negative bilaterally, strength was 5/5 in the bilateral upper extremities, and lower extremities except for some weakness in the right abductor pollicis brevis on the right at 4+/5, and there was no muscle atrophy. (Tr. 279). Plaintiff's grip strength was 5/5 bilaterally, deep tendon reflexes were physiologic and equal in the upper and lower extremities, and there were no sensory deficits noted. (Tr. 279). Dr. Zimba diagnosed Plaintiff with: (1) cervicalgia without nuerologic deficits; (2) lumbago without nuerologic deficits, and; (3) suspected carpal tunnel syndrome. (Tr. 289-80). Dr. Zimba opined that Plaintiff could: (1) frequently lift and carry up to twenty pounds, and ocassionally lift and carry up to fifty pounds; (2) sit for up to one hour at a time and for up to 4 hours total in an 8-hour workday; (3) stand for up to one hour at a time and for up to 2 hours total in an 8-hour workday; (4) walk for up to one hour at a time and for up to 2 hours total in an 8-hour workday; (5) frequently reach overhead, continuously reach in all other directions; (6) continuously use his hands for handling, fingering, feeling, pushing, and pulling; (7) frequently operate foot controls; (8) frequently perform postural maneuvers; (9) have no more than occasional exposure to unprotected heights or moving mechanical parts, or operate a motor vehicle; (10) continually be exposed to the remaining listed environmental conditions. (Tr. 280-85). In the accompany range of motion chart, Dr. Zimba indicated Plaintiff demonstrated some range of motion deficits noted in the cervical region on rotation and in the lumbar region on lateral flexion. (Tr. 289).
2. Treating Physician Records and Opinion: Ron Burinsky, D.O.
A record dated May 29, 2014, noted Plaintiff "was out mowing grass" and contracted poison ivy on his forearms. (Tr. 324). On May 4, 2015, noted that Plaintiff took 800 mg and regular pain medication injections help for Plaintiff's pain management and lasts for three to four months before back to baseline pain. (Tr. 324). Dr. Burinsky wrote that any work, even at home, puts Plaintiff back in bed and fully disabled. (Tr. 324). Dr. Burinsky noted that Plaintiff stopped narcotic medications because of negative side-effects of morphine. (Tr. 324). Dr. Burinsky noted that Plaintiff was "disabled from any physical work, standing or prolonged sitting." (Tr. 324). On 01/07/16, Dr. Burinsky assessed Plaintiff with low back pain I severe disc disease. (Tr. 322).
3. Pain Management Records: Robert McMurtrie, D.O.
Records from Dr. McMurtrie from 2014, indicate a diagnosis of lumbar radiculitis, foraminal stenosis, and lumbar disc displacement. (Tr. 273). Plaintiff had L5-S1 epidural steroid injections on June 28, 2014, October 4, 2014, and October 25, 2014. (Tr. 273-75).
4. Pain Management Records: Yong Park, M.D.
On October 6, 2015, Dr. Park noted that an MRI showed multilevel spinal stenosis; physical exam showed negative straight-leg raise bilaterally, normal sensory and motor exam, and normal gait; and the claimant was "employed, part-time." (Tr. 339-347). In a record dated October 6, 2015, Dr. Park indicated that the pain relief of the epidural inj ections lasted about a month, listed ibuprofen as Plaintiff's medication and that Plaintiff experiences a headache side-effect from oxycodone. (Tr. 339).
5. Treatmnent records: Amir H. Fayyazi, M.D.
In a record dated February 23, 2016, Plaintiff reported experiencing ongoing low back and left leg pain and that his leg pain had improved since with epidural steroid injections. (Tr. 386). Plaintiff reported that he had been taking oxycodone (10 mg, ½ tablet BID), however he was currently out of medication and could not afford a new prescription. (Tr. 386). Dr. Fayyazi observed that Plaintiff walked with a normal gait, ambulated without assistive devices, "able to walk on toes/heels," and presented with a normal posture. (Tr. 386). Dr. Fayyazi noted examination of the cervical spine revealed no muscle atrophy, no tenderness upon palpation, normal flexion extension, rotation, however, there was pain with motion. (Tr. 387). Examination of the lumbar spine revealed diffuse tenderness, tenderness upon palpation, normal range of motion with flexion, extension, and lateral extension, however, there was pain with extension. (Tr. 387). Dr. Fayyazi noted that Plaintiff demonstrated normal motor strength and deep tendon reflexes, and some decreased sensation in the left lower extremity. (Tr. 387). Seated straight-leg raising test was positive bilaterally. Dr. Fayyazi diagnosed chronic low back pain and degeneration of lumbosacral intervertebral disc. (Tr. 387).
6. State Agency Opinions: Robert J. Balogh, Jr., M.D.; Hong S. Park, M.D.
On March 27, 2015, Dr. Balogh opined that Plaintiff could: (1) lift and carry twenty pounds occasionally and ten pounds frequently; (2) stand/walk for about six hours and sit for about six hours in an eight-hour workday; (3) occasionally perform postural maneuvers except never climb ladders, ropes, or scaffolds, with no other postural limitations noted. (Tr. 292-93). Dr. Balogh opined that Plaintiff did not experience any manipulative or environmental limitations. (Tr. 293-94). Dr. Balogh reviewed the record, noting that lower back pain was noted on March 18, 2014, lower back pain and slightly antalgic gait noted in records dated May 13, 2013, and in the First State Spine & Pain treatment records from June to October 2014 there was no examination to evaluate function. (Tr. 296). Dr. Balogh noted that the March 2015 consultative examination opinion indicated that Plaintiff's gait was normal, he able to walk on heels and toes without difficulty, able to rise from a chair, and he did not need assistance getting on and off the examination table. (Tr. 296). Dr. Balogh noted that based on the record, there was improvement. (Tr. 296). On August 18, 2015, Dr. Park reviewed the record, cited the consultative evaluation, and agreed with Dr. Balogh's RFC and concluded that medical improvement occurred. (Tr. 303). // // //
V. Analysis
A. Weight of Opinions
Plaintiff argues the ALJ erred in the allocation of weight to the treating physician opinion. Pl. Br. 6-8. In support of his argument, Plaintiff cites to Dr. Burinsky's medical records wherein "Dr. Burinsky acknowledged [Plaintiff's] reported low back pain and right sided neck pain, which was getting worse," "acknowledged and assessed low back pain and severe disc disease," and opined Plaintiff was "disabled from any physical work, standing or prolonged sitting." Pl. Br. at 3. Plaintiff cites to MRIs taken May 18, 2015, (Tr. 318-320) which demonstrated focal tears at L1-2 and L4-5 and degenerative changes in the lumbar spine and "multi-level degenerative disc disease with protrusions, canal stenosis, cord flattening, especially at C5-C6 and C6-C7" as the basis upon which the ALJ should have afforded Dr. Burinsky's opinion sufficient weight to support a finding of disability. Pl. Br. at 4. Plaintiff also argues Dr. Burinsky's opinion is "well supported" by Dr. McMurtrie who noted Plaintiff has lumbar radiculitis, foraminal stenosis and lumbar disc displacement (Pl. Br. at 4 (citing Tr. 269-275)) and supported by Dr. Park's administration of steroid injections and diagnosis of lumbar radiculopathy (Pl. Br. at 4 (citing Tr. 339-340). Without citing to any evidence in the record to support the argument, Plaintiff states:
In fact, the consultant's in this case never had the opportunity to review evidence that was not before the State Agency. In fact, numerous additional items of evidence have been submitted to the Administrative Law Judge that were not available when the State Agency made the initial determination. The consultant did not have the opportunity to review this information at all. Additionally, the State Agency consultant did not review any information that could have provided him/her with more detailed and comprehensive information than the information available to the claimant's treating medical sources.Pl. Br. at 5. Plaintiff does not direct the court to evidence that would warrant reversal. "Only where 'additional medical evidence is received that in the opinion of the [ALJ] . . . may change the State agency medical. . . consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing,' is an update to the report required." Pintal v. Comm'r of Soc. Sec., 602 F. App'x 84, 87 (3d Cir. 2015) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.2011) (alteration and omission in original) (emphasis omitted); SSR 96-6p (July 2, 1996); Resnick v. Colvin, No. 315CV00233RDMGBC, 2016 WL 7007569, at *10 (M.D. Pa. Mar. 22, 2016), report and recommendation adopted, No. 3:15-CV-233, 2016 WL 7007506 (M.D. Pa. Nov. 29, 2016).
For weighing all medical opinions, the Commissioner considers the factors enumerated in 20 C.F.R. §§ 404.1527(c), 416.927(c). Pursuant to subsection (c)(3), "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion" and "[t]he better an explanation a source provides for an opinion, the more weight we will give that opinion." Pursuant to subsection (c)(4), "the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." Pursuant to subsection (c)(5), more weight may be assigned to specialists, and subsection (c)(6) allows consideration of other factors which "tend to support or contradict the opinion." 20 C.F.R. §§ 404.1527(c), 416.927(c).
Generally, there is a hierarchy of weight allotted between three types of physician opinions: opinions of those who treat the claimant (treating physicians) are given more weight than opinions by those who examine but do not treat the claimant (examining physicians), and the opinions of examining physicians are given greater weight than the opinions of those who neither examine nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). However, this hierarchy is not absolute. See 20 C.F.R. §§ 404.1527(c), 416.927(c); see e.g., Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004) (affirming rejection of examining physician opinion in favor of opinion of non-examining physician); Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (noting criteria necessary to reject a treating physician's opinion); Morris v. Barnhart, 78 Fed.Appx. 820, 824-25 (3d Cir. 2003) (affirming rejection of treating physician opinion which adopted subjective reports of claimant).
When a physician's opinion is based on subjective, rather than objective, information, and the ALJ has properly found a claimant's subjective claims to be less than fully credible, an ALJ may assign less weight to the opinion:
[T]he mere memorialization of a claimant's subjective statements in a medical report does not elevate those statements to a medical opinion. An ALJ may discredit a physician's opinion on disability that was premised largely on the claimant's own accounts of her symptoms and limitations when the claimant's complaints are properly discounted. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) ("The ALJ thus disregarded Dr. Bliss' opinion because it was premised on Fair's own subjective complaints, which the ALJ had already properly discounted. This constitutes a specific, legitimate reason for rejecting the opinion of a treating physician.").Morris v. Barnhart, 78 Fed. Appx. 820, 824-25 (3d Cir. 2003) (some internal citations omitted). If a non-examining opinion is better supported, more consistent with evidence, or authored by a specialist, then it may be entitled to greater weight than examining or treating opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (Non-examining consultants are "highly qualified...medical specialists who are also experts in Social Security disability evaluation.") Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004). An ALJ may reject an examining physician's opinion in favor of a non-examining physician opinion based on contradictory evidence. See 20 C.F.R. 404.1527(c); Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004); Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936 (ALJ may rely on non-medical evidence which is inconsistent with treating physician's opinion); Torres v. Barnhart, 139 F. App'x 411, 414 (3d Cir. 2005) (ALJ permissibly rejected treating opinion "in combination with other evidence of record including Claimant's own testimony"); Kays v. Colvin, No. 1:13-CV-02468, 2014 WL 7012758, at *7 (M.D. Pa. Dec. 11, 2014).
Substantial evidence supports the ALJ according limited weight to Dr. Burinsky's May 2015 opinion that Plaintiff was "disabled from any physical work, standing or prolonged sitting." (Tr. 324). The ALJ noted Dr. Burinsky's opinion was "conclusory, without objective support, and he [did] not provide a full functional analysis." (Tr. 21). The ALJ explained:
Dr. Burinsky's own treatment records from just a few weeks later . . . do not support this opinion. [Plaintiff's] work activity (i.e., helping his wife, who is an independent contractor), does not support this opinion. [Plaintiff's] self-reported activities of daily living (e.g., hunting and fishing) do not support this opinion. Other persuasive opinions of record, including the one from the consultative examiner . . . and those from the State agency medical consultants . . . do not support this opinion. . .(Tr. 21) (internal citations omitted). As cited above regarding the March 2015 examination, Dr. Zimba noted the Plaintiff walked with a normal gait without the use of an assistive device, was able to walk on heels and toes without difficulty, able to make a full squat, able to get on and off the examination table and rise from a chair without difficulty. (Tr. 278). Dr. Zimba also noted Plaintiff reported only "ibuprofen 800 mg [three times a day]" as his "current medication" (Tr. 278). Straight-leg raising test was negative bilaterally, strength was 5/5 in the bilateral upper extremities and lower extremities except for some weakness in the right abductor pollicis brevis on the right at 4+/5, and there was no muscle atrophy. (Tr. 279). Dr. Zimba opined that Plaintiff could: (1) frequently lift and carry up to twenty pounds, and ocassionally lift and carry up to fifty pounds; (2) sit for up to one hour at a time and for up to 4 hours total in an 8-hour workday; (3) stand for up to one hour at a time and for up to 2 hours total in an 8-hour workday, and; (4) walk for up to one hour at a time and for up to 2 hours total in an 8-hour workday. (Tr. 280-85). In the accompany range of motion chart, Dr. Zimba indicated Plaintiff demonstrated some range of motion deficits noted in the cervical region on rotation and in the lumbar region on lateral flexion. (Tr. 289).
On 05/29/14, Dr. Burinsky noted that the claimant "was out mowing grass" and got poison ivy on his forearms. The undersigned notes that [Plaintiff's] statements that he has pain "with any movement" is inconsistent with the level of activity reported here. Dr. Burinsky's previous statements that [Plaintiff] is disabled from any physical work, standing or prolonged sitting, is also inconsistent with the level of activity reported.
The ALJ's allocating greater weight to the agency opinions and the ALJ's final determination of disability is supported by substantial evidence. State agency medical consultants "are highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation." See 20 C.F.R. § 404.1527(e)(2)(i) 20 C.F.R. § 416.927(e)(2)(i); § 404.1527(e)(2)(ii) (ALJ should evaluate a state agency medical consultant's opinion using the factors set forth in 20 C.F.R. § 404.1527(a)-(d)); § 404.1527(c)(4) (ALJ must consider whether an opinion is consistent with the record as a whole); and § 404.1527(c)(3) (opinions receive weight based on their supportability). "Furthermore, the ALJ relied upon the state agency expert opinions in making this disability determination, a course of action that is authorized by law particularly when that state opinion draws significant support from the clinical record, as did the opinion of [the State Agency doctor] in this case." Michael v. Berryhill, No. 3:16-CV-00658, 2018 WL 279095, at *7 (M.D. Pa. Jan. 3, 2018) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). State Agency physician Dr. Balogh found Plaintiff could: (1) lift and carry twenty pounds occasionally and ten pounds frequently; (2) stand/walk for about six hours and sit for about six hours in an eight-hour workday; (3) occasionally perform postural maneuvers except never climb ladders, ropes, or scaffolds, with no other postural limitations noted. (Tr. 292-93). Dr. Balogh concluded, based on the record, there was improvement. (Tr. 296). On August 18, 2015, Dr. Park reviewed the record, cited the consultative evaluation, and agreed with Dr. Balogh's RFC and concluded that medical improvement occurred. (Tr. 303). Based on the foregoing, the Court concludes that substantial evidence supports the ALJ's allocation of little weight to the opinion of Dr. Burinsky and greater weight to the opinions of Drs. Balogh and Park. See e.g., Steele v. Berryhill, No. CV 17-743, 2018 WL 2240139, at *2-3 (W.D. Pa. May 16, 2018) (finding substantial evidence supporting ALJ decision in medical improvement case).
B. Consistency (Credibility) Determination
Where a medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a consistency finding on the claimant's subjective statements. SSR 16-3p; 20 C.F.R. § 404.1529(c)(2),(3); id. § 416.929(c)(2),(3). Although on March 16, 2016, the Social Security Administration eliminated the use of the term "credibility" from the agency's sub-regulatory policy, the agency continues to evaluate a disability claimant's statements of symptoms using a two-step process:
In determining whether an individual is disabled, we 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. We define a symptom as the individual's own description or statement of his or her physical or mental impairment(s). Under our regulations, an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability. However, if an individual alleges impairment-related symptoms, we must evaluate those symptoms using a two-step process set forth in our regulations.See Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims. In this case, the ALJ found Plaintiff's self-reported activities of daily living (e.g., hunting and fishing) including medical records indicating Plaintiff was mowing grass and contracted poison ivy on his forearms, were inconsistent with Plaintiff's statement he experiences pain "with any movement" and inconsistent with May 2015 Dr. Burinsky's opinion and thus, did not support a finding of disability. (Tr. 21). The ALJ also explained "[o]ther persuasive opinions of record, including the one from the consultative examiner . . . and those from the State agency medical consultants . . . do not support this opinion." (Tr. 21). The Court is not to disturb an ALJ's credibility findings if they are supported by substantial evidence because "[c]redibility determinations are reserved for the ALJ. Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). Based on the foregoing, substantial evidence supports the ALJ's evaluation of Plaintiff's statements of symptoms. See SSR 16-3p; 20 C.F.R. §§ 404.1529, 416.929.
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities ...
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to 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.DATED: March 12, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE