Opinion
4:20-cv-00798-MWB-GBC
12-15-2021
RUSSELL FREDERICK SCHAUFLER, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
GERALD B. COHN UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Russell Frederick Schaufler (“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 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). Plaintiff must demonstrate the physical or mental impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an administrative law judge (“ALJ”) to decide whether an applicant (1) is engaged in “substantial gainful activity;” (2) suffers from a “severe medically determinable physical or mental impairment;” (3) suffers from “an impairment(s) that meets or equals one” listed in the regulation's appendix; (4) has a residual functional capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make an adjustment to other work.” Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) (“court shall review only the question of conformity with such regulations and the validity of such regulations”); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Biestek v. Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met.” Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
II. PROCEDURAL HISTORY
On December 30, 2016, Plaintiff filed an application for supplemental security income under Title XVI and disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), with a last insured date (“DLI”) of December 31, 2017, and an alleged disability onset date of December 15, 2015. (Tr. 15-16, 79). On February 13, 2019, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 12-30). Plaintiff sought review of the decision, which the Appeals Council denied on March 17, 2020, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-6).
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).
On May 15, 2020, 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 November 10, 2020, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 10, 11). January 25, 2021, Plaintiff filed a brief in support of the appeal. (Doc. 14 (“Pl. Br.”)). On March 26, 2021, Defendant filed a brief in response. (Doc. 18 (“Def. Br.”)).
III. ISSUES
On appeal, Plaintiff argues the ALJ erred in: (1) the allocation of weight to the opinions of Drs. Boswell, Hemmelstein, and Osachy; (2) not properly considering the treating physician rule, and; (3) finding Plaintiff did not meet Listing 12.10. Pl. Br. at 11-22.
IV. BACKGROUND
Plaintiff is classified by the regulations as a younger individual through the date of the February 2019 ALJ decision. (Tr. 79); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed high school and a bachelor's degree in archeological science (Tr. 38) and has no past relevant work. (Tr. 24, 73).
Plaintiff alleges error only regarding non-exertional impairments. Therefore, the Court will only address evidence relevant to Plaintiff's allegations of error.
1. Consultative Evaluation Opinion, Dated March 7, 2017: Lisa Osachy, Psy.D.
In March 2017, Dr. Osachy performed a psychiatric evaluation of Plaintiff and rendered an opinion regarding Plaintiff's mental limitations in a work setting. (Tr. 292-99). Plaintiff reported receiving special education and autism support to obtain his college degree. (Tr. 292). Plaintiff reported he left his last job as a sales associate due to anxiety and inability to comprehend directions and many of his past jobs ended due to social anxiety and misunderstandings. (Tr. 292). Dr. Osachy noted Plaintiff had monthly psychiatric visits, weekly therapy from 2010 to 2016, had no history of psychiatric hospitalizations, and recently started seeing a psychologist every other month. (Tr. 292). Plaintiff reported that medication stopped panic attacks. (Tr. 293). Dr. Osachy observed Plaintiff made poor eye-contact, appeared anxious, and demonstrated mildly impaired attention and concentration. (Tr. 294). Dr. Osachy noted he demonstrated fluent speech with adequate expressive and receptive language capacity, his thought process was coherent and goal-directed, and presented with good insight and judgement. (Tr. 294). Dr. Osachy opined the “results of the mental status evaluation are consistent with [Plaintiff's] vocational history.” (Tr. 295).
Based upon the evaluation, Dr. Osachy opined Plaintiff had: (1) no limitation in the ability to understand, remember, and carry out simple instructions; (2) no limitation in the ability to make judgements on simple work-related decisions; (3) a mild limitation in the ability to understand, remember, and carry out complex instructions; (4) a mild limitation in the ability to make judgments on complex work-related decisions; (5) a mild limitation in the ability to respond appropriately to usual work situations and to changes in a routine work setting, and; (6) a marked limitation in the ability to interact appropriately with the public, co-workers, and supervisors. (Tr. 297-98). Dr. Osachy opined Plaintiff was unable to manage benefits in his own best interest. (Tr. 299). Dr. Osachy explained Plaintiff's anxiety, interpersonal communication, social judgment, attention, concentration, and memory deficits supported the opined limitations. (Tr. 297-98).
2. Letter Dated March 15, 2017: Neal A. Hemmelstein, Ph.D.
In March 2017, Dr. Hemmelstein wrote that he resumed seeing Plaintiff in January 2017, saw him five times and previously saw him in 2013 and 2014. (Tr. 302). Dr. Hemmelstein wrote Plaintiff's:
difficulties (approaching inability) with relating with others; that is, picking up social cues, having a sense of the needs of others, impulsivity, and management and expression of his feelings and needs, has interfered (prevented) him from keeping a job. And the results of these difficulties tend to “pile up.” And this contributes to the re-emergence and intensity of his depression, which adds to his difficulties.(Tr. 302).
3. State Agency Non-Examining Opinion, Dated April 3, 2017: Emanuel Schnepp, Ph.D.
In April 2017, Dr. Schnepp reviewed the record (Tr. 80-81 (listing medical records from Tr. 263-302 (September 2014 to March 2017))). Regarding Paragraph “B” criteria of the Listings, Dr. Schnepp opined Plaintiff possessed: (1) a mild limitation in the ability to understand, remember, or apply information; (2) a moderate limitation in the ability to interact with others; (3) a moderate limitation in the ability to concentrate, persist, or maintain pace, and; (4) a moderate limitation in the ability to adapt or manage oneself. (Tr. 83). Dr. Schnepp opined the evidence did not establish the presence of Paragraph “C” criteria of the Listings. (Tr. 83). Dr. Schnepp opined Plaintiff was not significantly limited in the ability to: (1) remember locations and work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) sustain an ordinary routine without special supervision; (5) make simple work-related decisions, and; (6) be aware of normal hazards and take appropriate precaution. (Tr. 85-87). Dr. Schnepp opined Plaintiff was moderately limited in the ability to: (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) work in coordination with or in proximity to others without being distracted by them; (5) complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (6) interact appropriately with the general public; (7) ask simple questions or request assistance; (8) accept instructions and respond appropriately to criticism from supervisors; (9) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (10) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; (11) respond appropriately to changes in the work setting; (12) travel in unfamiliar places or use public transportation, and; (13) set realistic goals or make plans independently of others. (Tr. 85-87). Dr. Schnepp wrote Plaintiff could:
Maintain an ordinary routine and adapt to modest changes without special supervision. He is capable of taking appropriate precautions to avoid hazards, and he can exercise appropriate judgment in the workplace. [Plaintiff] could complete production-oriented work tasks requiring little independent decision-making.(Tr. 87). In support of the opinion, Dr. Schnepp noted: (1) diagnoses of high functioning autism, anxiety, and depression; (2) graduation from college through a program for people with Autistic Spectrum Disorders (“ASD”); (3) several job attempts from which Plaintiff departed due to anxiety and pragmatic communication difficulties which exacerbated his depression; (4) no history of inpatient mental health treatment but had resumed therapy; (5) most recent psychiatric progress note dated December 8, 2016, indicated Plaintiff was feeling better; (6) Dr. Osachy's March 2017 CE opinion; (7) Plaintiff's ADLs, medication, and treatment records in support of the opined limitations. (Tr. 83-84). Dr. Schnepp explained:
The mental residual functional capacity assessment presented above partially reflects the opinions expressed in the report that was submitted by Lisa Osachy, Psy.D., an examining source, and was received on [March 10, 2017]. The
examining source's opinions about [Plaintiff's] abilities in the areas of making performance adjustments and other work-related activities are fairly consistent with the residual functional capacity assessment that was determined in this decision. However, the examining source's opinion about the claimant's abilities in the areas of making personal and social adjustments and making occupational adjustments reveal only a snapshot of his functioning, based on an isolated exam, which is not supported by other evidence, and thus is considered to represent an overestimation of his functional limitations. Therefore, the report that was submitted by Lisa Osachy, Psy.D. . . . cannot be given great weight. . . .
The [medical evidence of record] suggests that the residual functional limitations resulting from [Plaintiff's mental health] impairments do not preclude him from being able to meet the basic mental demands of competitive gainful activity on a sustained basis. . . .(Tr. 87).
4. Treating Medical Opinion, November 26, 2018: John Boswell, M.D.
In an October 2018 form, Dr. Boswell indicated Plaintiff had: (1) a marked restriction of activities of daily living (“ADLs”); (2) marked difficulties in maintaining social functioning, and; (3) repeated episodes of decompensation, each of extended duration. (Tr. 597). Dr. Boswell opined Plaintiff was not significantly limited in the ability to: (1) remember locations and work-like procedures; (2) understand, remember, and carry out very short and simple instructions; (3) understand, remember, and carry out detailed instructions; (4) make simple work-related decisions; (5) ask simple questions or request assistance, and; (6) be aware of normal hazards and take appropriate precautions. (Tr. 599-600). Dr. Boswell opined Plaintiff was moderately limited in the ability to: (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (3) sustain an ordinary routine without special supervision; (4) interact appropriately with the general public; (5) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (6) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; (7) respond appropriately to changes in the work setting; (8) be aware of normal hazards and take appropriate precautions; (9) travel in unfamiliar places or use public transportation; (10) set realistic goals or make plans independently of others. (Tr. 599-600). Dr. Boswell opined Plaintiff was markedly limited in the ability to: (1) work in coordination with or proximity to others without being distracted by them; (2) complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length or rest periods, and; (3) accept instructions and respond appropriately to criticism from supervisors. (Tr. 599-600). The form completed by Dr. Boswell lacks any explanation or citation to treatment history in support of the severity of opined limitations.
VI. ANALYSIS
1. Allocation of Weight to Medical Opinions
Plaintiff argues the ALJ erred in the allocation of weight to the medical opinions and, therefore, substantial evidence does not support the RFC determination. Pl. Br. at 11-22. Specifically, Plaintiff argues the ALJ allocated insufficient weight to the March 2017 Consultative Evaluation (“CE”) opinion of Dr. Osachy, insufficient weight to the March 2017 opinion from treating psychologist Dr. Hemmelstein and erred in not allocating controlling weight to the November 2018 treating opinion from Dr. Boswell. Pl. Br. at 11-22. Instead, the ALJ allotted partial weight the opinions from Drs. Osachy, Hemmelstein, Boswell and Schnepp. (Tr. 23-24). In support of the allocation of weight to the medical opinions, the ALJ explained:
Records from April 2017, indicate [Plaintiff] was creating and selling knives and swords on his website and Etsy [citing Tr. 514-558 (treatment records)]. Likewise, August 2018, records indicate [Plaintiff] had a great trip to Norway and Britain, which he helped plan, and was doing well overall [citing Tr. 31-71 (hearing), 303-06 (treatment records). September 2018, records indicate he continued to utilize his artistic ability as a form of personal medicine [citing Tr. 514-558]. At his most
recent job as a regular research assistant, his job duties include scanning archaeological records and organizing them by folder, along with research into locations and organizing them into a database [citing Tr. 31-71 (hearing)]. Currently, he also spends up to six hours per day independently doing 3D computer modeling and graphics [citing Tr. 31-71 (hearing)]. Finally, the undersigned notes [Plaintiff] is no longer taking Zoloft for his anxiety and associated panic attacks [citing Tr. 31-71 (hearing)].
As for the opinion of Dr. Osachy, she reported [Plaintiff] had marked limitations interacting appropriately with the public, supervisors and co-workers, with mild limitations responding appropriately to usual work situations and to changes in a routine work setting, understanding, remembering and carrying out complex instructions and making judgments on complex, work-related decisions. This opinion is given partial weight. Moderate weight is given to the limitations associated with following instructions in that it is generally consistent with the medical evidence of record. Dr. Osachy . . . reported [Plaintiff] liked to do art, graphic design, model building and watching movies [citing Tr. 291-300]. He also had coherent and goal-directed thought processes, a clear sensorium, and only mildly impaired attention and concentration [citing Tr. 291-300]. . . . Greater weight is given to [Plaintiff's] social limitations. Although based on [Plaintiff's] subjective allegations, the undersigned notes his history of autism, which has resulted in some limitation, particularly recognizing social cues, and which has caused conflict with others.(Tr. 22-23). The ALJ allocated “little weight” to Dr. Hemmelstein's March 2017 opinion explaining it did “not provide a function-by-function analysis of [Plaintiff's] limitations” and Dr. Hemmelstein's conclusion Plaintiff could not work “is reserved to the Commissioner.” (Tr. 22). The ALJ further noted “a three-year gap in treatment [with Dr. Hemmelstein], having started in 2013-2014, and was not examined again until 2017, ” and found this gap inconsistent with the statement by Dr. Hemmelstein that the opined limitations spanned during the time when he did not treat Plaintiff. (Tr. 22).
The ALJ allocated “little weight” to Dr. Schnepp's April 2017 opinion that Plaintiff had mild limitations and explained the finding of mild limitations were not consistent with the medical evidence of record. (Tr. 23). The ALJ explained:
[Plaintiff's] autism prevents him from being able to multitask, and although he failed 2 or 3 classes, he received a degree from Penn State. Further, he had a job as
a research assistant, and he had a woodworking and 3D computer modeling business and was able to help plan a trip to Europe. . . . The undersigned has included greater social limitations based on the claimant's subjective allegations that autism has affected his ability to interact with others.(Tr. 23). The ALJ allocated “partial weight” to Dr. Boswell's opinion. The ALJ specifically gave “little weight” to the marked limitations in the ability to: (1) work in coordination with or proximity to others without being distracted by them; (2) complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length or rest periods, and; (3) accept instructions and respond appropriately to criticism from supervisors. (Tr. 599-600 (Dr. Boswell opinion)). The ALJ explained these extreme limitations were “contradicted by [Plaintiff's] activities of daily living and other medical evidence discussed at length already.” (Tr. 24). The ALJ continued explaining the “rest of the opinion noting no more than moderate limitations in understanding, memory, concentration, persistence, social interaction, and adaption are more consistent with the overall record longitudinally as already discussed and are therefore given greater weight.” (Tr. 24). The ALJ also allocated “little weight” to the testimony of Plaintiff's mother regarding the severity of Plaintiff's anxiety and social limitations, noting: (1) Plaintiff's ability to “sit through classes with up to 100 people while in college, take part in study groups and be involved with clubs”; (2) Plaintiff's “most recent job as a regular research assistant, his job duties include scanning archaeological records and organizing them by folder, along with research into locations and organizing them into a database”; (3) Plaintiff's ability to spend “up to six hours per day independently doing 3D computer modeling and graphics, ” and; (4) Plaintiff no longer took medication for his anxiety and associated panic attacks. (Tr. 23-24).
For weighing all medical opinions, the Commissioner considers the factors enumerated in 20 C.F.R. §§ 404.1527(c), 416.927(c) (effective for claims filed before March 27, 2017). Pursuant to subsection (c)(3), “[t]he more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion” and “[t]he better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.” 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Subsection (c)(3) adds “because nonexamining sources have no examining or treating relationship with [a claimant], the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions. We will evaluate the degree to which these medical opinions consider all of the pertinent evidence in [the] claim, including medical opinions of treating and other examining sources.” 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Pursuant to subsection (c)(4), “the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.” 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Regarding inconsistency of medical opinions, sections 404.1520b and 416.920b explain:
We consider evidence to be inconsistent when it conflicts with other evidence, contains an internal conflict, is ambiguous, or when the medical evidence does not appear to be based on medically acceptable clinical or laboratory diagnostic techniques. . . . If any of the evidence in your case record, including any medical opinion(s) . . . is inconsistent, we will consider the relevant evidence and see if we can determine whether you are disabled based on the evidence we have.20 C.F.R. § 404.1520b-(1). 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 medical opinion.” 20 C.F.R. §§ 404.1527(c), 416.927(c).
Generally, there is a hierarchy of weight allotted between three types of medical source opinions: opinions of those who treat the claimant (treating source) are given more weight than opinions by those who examine but do not treat the claimant (examining source), and the opinions of examining physicians are given greater weight than the opinions of those who neither examine nor treat the claimant (non-examining source). 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 Fed.Appx. 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 [the doctor's] opinion because it was premised on [the plaintiff'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, more consistent with evidence, or authored by a specialist, than 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); 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 Fed.Appx. 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 Fed.Appx. 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).
An ALJ is entitled generally to credit parts of an opinion without crediting the entire opinion. See Ward v. Kijakazi, No. 1:20-cv-1691, 2021 WL 4262460, at *7 (M.D. Pa. Sept. 20, 2021) (citing Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016)). It follows that an ALJ can give partial credit to all medical opinions and can formulate an RFC based on different parts from the different medical opinions. See e.g., Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016). An ALJ can craft an RFC that falls between competing opinions. See Ward v. Kijakazi, No. 1:20-CV-1691, 2021 WL 4262460, at *7 (M.D. Pa. Sept. 20, 2021). Substantial evidence supports the ALJ according little weight to the parts of opinions from Drs. Boswell, Hemmelstein, and Osachy concluding marked limitations in several areas of mental functioning and substantial evidence supports the ALJ according little weight to the mild limitations reflected in parts of Dr. Schnepp's opinion.
The ALJ ultimately concluded at Step 3 Plaintiff had a marked limitation in the ability to interact with others. (Tr. 19). See e.g., Christopher V. v. Comm'r, Soc. Sec. Admin., No. 3:17-CV-01503-HZ, 2019 WL 93502, at *6 (D. Or. Jan. 2, 2019) (concluding a marked level of difficulty in maintaining social functioning does not contradict an RFC's limitations to occasional interaction with supervisors and co-workers). The ALJ's allocation of partial weight to Dr. Osachy's opinion reflecting marked limitations in the ability to interact appropriately with the public, co-workers, and supervisors reflects finding Dr. Osachy's opinion mostly persuasive regarding social interactions. (Tr. 19). To accommodate the partial weight to marked limitation in social interaction, the ALJ crafted an RFC limiting Plaintiff to “occasional interaction with supervisors, and occasional contact with co-workers and the general public, but have no interaction with coworkers and the general public.” (Tr. 20). To the extent that the ALJ's findings diverge from Dr. Osachy's CE opinion, such is supported by the ALJ's reliance on Dr. Schnepp's finding of moderate limitations in the ability to interact appropriately with the general public, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracted them or exhibiting behavioral extremes, and maintain socially appropriate behavior. (Tr. 85-87 (Dr. Schnepp's opinion)). Dr. Schnepp reviewed the record which included Dr. Osachy's CE opinion and concluded Dr. Osachy's opinion reflected an overstatement of Plaintiff's limitations based upon a “snapshot” and did not reflect the totality of the record indicating Plaintiff's capacity for greater functioning. (Tr. 87). The ALJ's similar reasoning to allocate less weight to Dr. Osachy's CE opinion is supported by Dr. Schnepp's review of Dr. Osachy's CE opinion.
There must be a circumstance where a claimant demonstrates marked limitations in only one of the enumerated broad areas of functioning (1. understanding, remembering, or applying information; 2. interacting with others; concentrating, persisting, or maintaining pace; 3. or adapting or managing themselves), and craft an RFC with limitations sufficient to reflect the marked limitation and find a claimant still capable of sustained employment. See Frazer v. Comm'r of Soc. Sec., No. 18-CV-2015-LTS, 2019 WL 6222288, at *4 (N.D. Iowa June 27, 2019), report and recommendation adopted sub nom. Frazer v. Saul, No. C18-2015-LTS, 2019 WL 3776996 (N.D. Iowa Aug. 12, 2019). To conclude there is no RFC possible to reflect an ability to work with only one marked limitation, would undermine the Step 3 regulatory requirement of two marked impairments equaling a disability finding. See 20 CFR Part 404, Subpart P, Appendix 1 (Listings); Mercer Outdoor Advert., LLC v. City of Hermitage, Pa., No. 2: 14-CV-00561, 2014 WL 3735637, at *5 (W.D. Pa. July 28, 2014), aff'd and remanded sub nom. Mercer Outdoor Advert., LLC v. City of Hermitage, Penn., 605 Fed.Appx. 130 (3d Cir. 2015) (stating one of the basic rules of legal construction, “mandate that a regulation may not be read in such a way that it renders aspects of same meaningless”).
Substantial evidence supports the ALJ's allocation of little weight to Dr. Hemmelstein's sparse opinion as the three-year gap in treatment undermined Dr. Hemmelstein's opinion that Plaintiff's limitations existed at the same intensity throughout the time he did not treat Plaintiff and Dr. Hemmelstein gave no indication of having reviewed Plaintiff's medical records from other providers during the period of time he did not treat Plaintiff. Moreover, Dr. Hemmelstein's opinion that Plaintiff's mental-based limitations “interfered” and “prevented” Plaintiff from keeping his past jobs that required higher levels of social interaction and attention does not contradict the ALJ's RFC reflecting Plaintiff's ability to perform jobs requiring less social interaction and concentration. See Meszaros v. Saul, No. 4:19-cv-01809-MWB-GBC, 2021 WL 1398228, at *8 (M.D. Pa. Mar. 12, 2021), report and recommendation adopted, No. 4:19-CV-01809, 2021 WL 1392064 (M.D. Pa. Apr. 13, 2021) (“Plaintiff's assertion that she consistently failed at jobs that required a higher intensity of social interaction does not contradict the ALJ's finding that she could sustain employment in jobs requiring only occasional interaction with people”).
Substantial evidence supports the ALJ's allocation of little weight to Dr. Boswell's opinion of Plaintiff's marked limitations as the ALJ relied, in part, on the moderate limitations expressed in Dr. Schnepp's opinion. Compare (Tr. 599-600 (Dr. Boswell opinion)) with (Tr. 85-87 (Dr. Schnepp's opinion). “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). While Dr. Boswell opined Plaintiff was markedly limited in the ability to “work in coordination with or proximity to others without being distracted by them” (Tr. 599-600), Dr. Schnepp opined Plaintiff had a moderate limitation in this skill (Tr. 85-86). While Dr. Boswell opined Plaintiff was markedly limited in the ability to “complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length or rest periods, ” (Tr. 599-600), Dr. Schnepp opined Plaintiff had a moderate limitation in this skill. (Tr. 85-86). Lastly, Dr. Boswell opined Plaintiff was markedly limited in the ability to “accept instructions and respond appropriately to criticism from supervisors, ” (Tr. 599-600), and Dr. Schnepp opined Plaintiff had a moderate limitation in this skill. (Tr. 85-86). Although Dr. Boswell's November 2018 opinion was rendered roughly a year and a half following Dr. Schnepp's April 2017 opinion, substantial evidence supports the ALJ's allocation of weight to Dr. Schnepp's opinion as the medical record leading up to Dr. Boswell's November 2018 opinion fails to demonstrate a significant deterioration in Plaintiff's symptoms. See Julian o/b/o C.G. v. Berryhill, No. CV 17-43, 2018 WL 4354563, at *7 (W.D. Pa. Sept. 12, 2018) (affirming where lack of subsequent deterioration supported the ALJ's reliance on CE opinion); De La Torre v. Berryhill, No. 3:17-CV-2023, 2018 WL 3388002, at *6-7 (M.D. Pa. July 12, 2018) (affirming where Plaintiff does not demonstrate deteriorating condition after the opinion that the ALJ relied upon for decision).
This case is similar to Harrold v. Astrue, where the Third Circuit addressed an appeal of a recent high school graduate diagnosed with autism and had a history of special education classes. See Harrold v. Astrue, 323 Fed.Appx. 114, 117 (3d Cir. 2009). The Third Circuit affirmed the ALJ's allocation of weight to the opinions, explaining:
Finally, Harrold argues that the ALJ erred in giving greater weight to the assessment of the reviewing state agency psychologist (Dr. James) than to that of
the consultative examiner (Dr. McKinley). The resolution of this issue depends upon whether there was substantial evidence to support the ALJ's finding that Dr. McKinley's assessment was inconsistent with the body of her report and the record evidence considered in its entirety.
Dr. McKinley completed an assessment form that indicated that Harrold's ability to understand, remember and carry out detailed instructions, and to make judgments on simple work-related decisions was markedly restricted. She based these findings on the fact that Harrold needed special classes during his schooling. Dr. McKinley also found that Harrold is extremely limited in his ability to interact appropriately with the public, supervisors and co-workers and to respond appropriately to work pressure.
After reviewing Dr. McKinley's report and the medical evidence of record, Dr. James concluded that Harrold has mild restrictions of daily living, moderate difficulties with social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Dr. James found that some of Dr. McKinley's opinions were “an overestimate of the severity of the claimant's functional limitations” because the statements “concerning [Harrold's] abilities in the areas of making personal and social adjustments and other work related activities are not consistent with the other evidence....”
The record demonstrates that the ALJ gave due consideration to the competing views of Drs. McKinley and James. While certainly not required to have sided with Dr. James, the ALJ did not err in doing so for the reasons she articulated at page four of her opinion. Because the ALJ did not err in discounting Dr. McKinley's opinion, she was not required to include the limitations claimed by Dr. McKinley in the hypothetical question posed to the vocational expert.Harrold v. Astrue, 323 Fed.Appx. 114, 117 (3d Cir. 2009) (internal citations omitted). When medical opinions are conflicting, “‘the ALJ is not only entitled but required to choose between them.'” Louis v. Comm'r Soc. Sec., 808 Fed.Appx. 114, 119-20 (3d Cir. 2020) (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)). “The presence of evidence in the record that supports a contrary conclusion does not undermine the [ALJ's] decision so long as the record provides substantial support for that decision.” Malloy v. Comm'r of Soc. Sec., 306 Fed.Appx. 761, 764 (3d Cir. 2009). An ALJ is afforded substantial discretion in addressing contradictions and reviewing the totality of the record for consistency. See Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 n. 9 (3d Cir. 2014) (“it is within the ALJ's discretion to weigh the evidence . . . “); Dula v. Barnhart, 129 Fed.Appx. 715, 718 (3d Cir. 2005); Miller v. Comm'r of Soc. Sec., 172 F.3d 303, 305-06 (3d Cir. 1999). Even though Plaintiff cites evidence favorable to a disability finding, the ALJ decision is still supported by substantial evidence. See Louis v. Comm'r Soc. Sec., 808 Fed.Appx. 114, 118- 19 (3d Cir. 2020); Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015); Yost v. Berryhill, No. 3:16-CV-1444, 2017 WL 4408451, at *8 (M.D. Pa. Sept. 15, 2017), report and recommendation adopted, No. 3:16-CV-1444, 2017 WL 4347564 (M.D. Pa. Sept. 29, 2017) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966)). Notwithstanding the records and symptoms highlighted by Plaintiff in the brief, Dr. Schnepp opined Plaintiff still retained the ability to work. (Tr. 85-87); see 20 C.F.R. §§ 404.1527(c), 416.927(c) (evaluating the consistency of a medical opinion with other medical sources and nonmedical sources in the claim). The Court finds no reversible error given the ALJ's discussion of the record and discussion of the persuasiveness of the opinions from Drs. Osachy, Hemmelstein, Boswell and Schnepp. See Marencic v. Comm'r of Soc. Sec., No. 3:18-CV-1863, 2020 WL 879410, at *14 (M.D. Pa. Jan. 27, 2020), report and recommendation adopted, No. CV 3:18-1863, 2020 WL 880758 (M.D. Pa. Feb. 21, 2020) (distinguishing Morales and affirming since the ALJ relied upon objective evidence in support of determination regarding medical opinions' persuasiveness); Hernandez v. Saul, No. 4:19-CV-1263, 2020 WL 3412687, at *14 (M.D. Pa. June 22, 2020) (rejecting similar argument explaining “[u]nlike in Morales, the ALJ in this case cited to evidence in the record including Plaintiff's mental health treatment records and the opinions of [two other doctors] (whose opinions he accorded great weight) before concluding that Plaintiff was not disabled”).
Based on the foregoing, the Court concludes substantial evidence supports the ALJ's allocation of weight to the opinions of Drs. Hemmelstein, Osachy, Schnepp, and Boswell. See e.g., 20 C.F.R. §§ 404.1527, 416.927; 20 C.F.R. §§ 404.1527(f)(1), 416.927(f)(1); Torres v. Barnhart, 139 Fed.Appx. 411, 414 (3d Cir. 2005) (ALJ permissibly rejected treating opinion “in combination with other evidence of record including Claimant's own testimony”); Harrold v. Astrue, 323 Fed.Appx. 114, 117 (3d Cir. 2009).
2. Assessment of ADLs
Plaintiff argues the ALJ's decision is “somewhat void of any discussion of Plaintiff's activities of daily living (“ADLs”)” and to the extent the ALJ discusses them, the discussion fails to reflect an accurate picture of Plaintiff's abilities and limitations. Pl. Br. at 12-13. 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. Soc. Sec. Ruling 16-3p; 20 C.F.R. § 404.1529(c)(2), (3); id. § 416.929(c)(2), (3). The agency evaluates 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.
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 …See Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims.
The Court finds the ALJ did not inaccurately rely upon ADLs. Rather, the ALJ highlighted ADLs to demonstrate the extent which the activities contradicted the alleged severity of the symptoms. See Horodenski v. Comm'r of Soc. Sec., 215 Fed.Appx. 183, 188 (3d Cir. 2007) (finding significant a plaintiff's testimony about her daily activities was internally inconsistent, thus supporting the ALJ's determination of according her testimony little weight); Juliana Marie M. v. Comm'r of Soc. Sec., No. 1:18-CV-1421 (ATB), 2019 WL 6829044, at *7 (N.D.N.Y. Dec. 13, 2019) (affirming ALJ decision relying on ADLs such as international travel and participation in social groups to support a finding of less severe social interaction limitations); see also Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (stating that inconsistencies in testimony or between testimony and other evidence is proper reason to discredit a social security plaintiff); Weidman v. Colvin, 164 F.Supp.3d 650, 691 (M.D. Pa. 2015) (explaining “[e]vidence can be used to discount credibility if such evidence demonstrates a contradiction or inconsistency”).
In this instance, the ALJ summarized the alleged severity of symptoms:
The claimant reported a history of autism and an anxiety disorder, which limits his ability to interact with others and work effectively, resulting in having to quit jobs. Likewise, his impairments have caused an inability for him to understand social cues and display appropriate office behavior, amplifying his anxiety and tension. Moreover, his impairments affect his ability to talk, remember, complete tasks, concentrate, understand, follow instructions and get along with others.
At the hearing, he reported his autism results in an inability to multitask, and has not driven for nearly a year since he was involved in an accident. He reported he stopped working at a prior job due to severe anxiety caused by difficulty focusing and social situations. He also reported panic attacks with nausea, confusion, heart palpitations and dizziness on a daily basis, lasting up to 20 minutes at a time. Further, he reported difficulty interpreting and following instructions, which resulted in being reprimanded at work on several occasions. He reported his inability to understand social cues has resulted in increased social anxiety and reprimands at work.(Tr. 21 (internal citations omitted)). While Plaintiff alleged having work-preclusive mental limitations, the ADLs are relevant to support the ALJ's consistency analysis. For example, the ALJ noted:
As for the claimant's statements alleged symptoms and limitations associated with his inability to work, records indicate he attended Penn State for five years, only requiring OVR services for the first two years of school, which included extra time to take tests, and social and organizational support. During his time there, he was involved on an occasional basis with a few clubs including medieval studies and martial arts, which included 20- 25 people. Likewise, despite receiving some failing grades, he completed all requirements except for 2 or 3 classes with some “organizational support” from his father and frequent proofreading of his papers from others. His classes included between 15-100 students, and he was able to fully attend the sessions, along with participating in small study groups on a regular basis.
…
He was also performing volunteer work at a library in February 2016, and although he testified he was no longer working there due to driving issues, records indicate they were no longer looking for volunteers and he was relieved because he preferred to work for pay.
. . .
Records from April 2017, indicate he was creating and selling knives and swords on his website and Etsy. Likewise, August 2018, records indicate the claimant had a great trip to Norway and Britain, which he helped plan, and was doing well overall. September 2018, records indicate he continued to utilize his artistic ability as a form of personal medicine. At his most recent job as a regular research assistant, his job duties include scanning archaeological records and organizing them by folder, along with research into locations and organizing them into a database. Currently, he also spends up to six hours per day independently doing 3D computer modeling and graphics. Finally, the undersigned notes the claimant is no longer taking Zoloft for his anxiety and associated panic attacks.(Tr. 21-23 (internal citations omitted)). The cited ADLs supports the ALJ's findings regarding Plaintiff's ability to cope with sensory triggers and distractions such as being around many people in public spaces, remembering and concentrating sufficiently to complete college-level assignments, volunteer, work part-time jobs, play computer games for extended hours, and ability to carry out conversations and interactions in social settings. (Tr. 21-23 (ALJ Decision), (Tr. 564 (December 2015 record wherein Plaintiff “reported he has been ‘obsessed' with this videogame which has impacted his concentration on other things (i.e., work around the farm”)); see e.g. Forster v. Colvin, 208 F.Supp.3d 636, 645 (M.D. Pa. 2015) (affirming wherein ALJ relied on RFCs including video game playing, illustrating, and part-time work to support findings regarding social functioning and ability to maintain concentration). Under 20 C.F.R. §§ 404.1571, 416.971, “a claimant's ability to work on a part-time basis may constitute probative evidence of his or her ability to perform the duties of a full-time job.” Henderson v. Astrue, No. 10-cv-1638, 2011 WL 6056896, at *6 (W.D. Pa. Dec. 6, 2011); see also Lyons v. Heckler, 638 F.Supp. 706, 711 (E.D.Pa.1986) (“If a claimant performs work during any period in which she alleges that she was disabled, the work performed may demonstrate that she is able to engage in substantial gainful activity”); Lauer v. Bowen, 818 F.2d 636, 641-43 (7th Cir. 1987) (J. Posner dissent) (explaining that past “insubstantial” work in combination with other evidence can support a conclusion that a claimant is not disabled). Sections 404.1571 and 416.971 provide that “[e]ven if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.” 20 C.F.R. §§ 404.1571, 416.971.
Upon review of the record, the Court finds the ALJ properly considered the consistency of Plaintiff's allegations with the record, including review of Plaintiff's ADLs and medical opinions, in totality, and substantial evidence supports the ALJ's determination that the medical evidence did not fully support a finding of work-preclusive limitations. Substantial evidence supports the ALJ's evaluation of Plaintiff's ADLs and statements of symptoms. See Soc. Sec. Ruling 16-3p; 20 C.F.R. §§ 404.1529, 416.929.
3. Listings 12.10
Plaintiff argues substantial evidence does not support the ALJ's finding “Plaintiff was only moderately limited with regard to his ability to concentrate, persist, or maintain pace, ” for the B criteria under Listing 12.10. Pl. Br. at 20. Plaintiff argues the ALJ failed to “discuss any of Plaintiff's past failed work attempts or his current position which is arguably sheltered work, ” and “[t]hese abilities, to function at home and at work, with or without supervision, are relevant factors in rating the severity of a claimant's limitations.” Pl. Br. at 21 (citing 12.00(F)(2)(d) and (F)(3)(b-c). Plaintiff argues the ALJ's mischaracterization of the evidence addressed above, results in the ALJ's erroneous conclusion that Plaintiff's ability to concentrate, persist or maintain pace was not markedly limited. Pl. Br. at 21-22.
Plaintiff's brief notes the ALJ did not discuss Paragraph A. Pl. Br. at 20. Paragraph A for each listing consists of the diagnostic criteria for determining whether the symptoms correspond with a particular medically determinable impairment (“MDI”). See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (subparts 12.00(A)(2)(a) (“Paragraph A of each listing (except 12.05) includes the medical criteria that must be present in your medical evidence”); 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1) (administrative law judge must first evaluate a claimant's pertinent symptoms, signs, and laboratory findings to determine whether a claimant has a medically determinable mental impairment); see also Morris v. Saul, No. 119CV01588RDMGBC, 2021 WL 3889555, at *10 (M.D. Pa. Jan. 4, 2021); McMahon v. Comm'r, Soc. Sec. Admin., 583 Fed.Appx. 886, 888 (11th Cir. 2014) (“the ALJ first evaluates the signs, symptoms, and laboratory findings to determine whether the claimant has a medically determinable mental impairment (called the ‘paragraph A criteria')”). As there is no dispute regarding Plaintiff's MDIs, an ALJ's discussion of Paragraph A criteria would be duplicative.
“To meet the requirements of a listing, [a claimant] must have a medically determinable impairment(s) that satisfies all of the criteria in the listing.” 20 C.F.R. § 404.1525(d) (emphasis added) (effective March 27, 2017 (section (d) remains the same after new version)). As the Third Circuit has explained:
For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” [Sullivan v. Zebley, 493 U.S. 521, 530- 31, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1990)] (emphasis in original). “For a
claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. (emphasis in original).Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). Thus, if there is one element that is not satisfied, the ALJ will have substantial evidence to conclude that a claimant does not meet a Listing. See Williams v. Sullivan, 970 F.2d 1178, 1186. The Listings were revised and effective January 17, 2017. See 81 Fed.Reg. 66138-01, n.1 (Sept. 26, 2016); accord Naples v. Comm'r of Soc. Sec., No. CV 17-267-E, 2019 WL 1434215, at *1 n.1 (W.D. Pa. Mar. 2019).
The regulations contemplate the variance in symptoms from any given diagnosis and, specifically, describe that ASD and other mental illnesses may include impulsivity, aggressiveness, self-injurious actions, and treatment may include psychotherapy, hospitalization, or outpatient treatment programs. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 (B)(8)(a), (D)(4). The preamble for Listing 12.10 for autism spectrum disorder explains:
These disorders are characterized by qualitative deficits in the development of reciprocal social interaction, verbal and nonverbal communication skills, and symbolic or imaginative activity; restricted repetitive and stereotyped patterns of behavior, interests, and activities; and stagnation of development or loss of acquired skills early in life. Symptoms and signs may include, but are not limited to, abnormalities and unevenness in the development of cognitive skills; unusual responses to sensory stimuli; and behavioral difficulties, including hyperactivity, short attention span, impulsivity, aggressiveness, or self-injurious actions.20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 (B)(8)(a). The preamble to section 12.00 of the Listings pertaining to mental impairments, in general, explains:
We will consider the effect of any treatment on your functioning when we evaluate your mental disorder. Treatment may include medication(s), psychotherapy, or other forms of intervention, which you receive in a doctor's office, during a hospitalization, or in a day program at a hospital or outpatient treatment program.20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 (D)(4). Substantial evidence supports the ALJ's conclusion that Plaintiff did not demonstrate the severity of symptoms to meet the criteria for either paragraph B or C required to qualify for Listing 12.10. (Tr. 18-20). The ALJ noted Plaintiff's treatment consisted of an outpatient therapy program with therapy consisting “primarily of alleviating his depressed mood . . . and returning him to a previous level of functioning.” (Tr. 21-22). The ALJ noted mental status examinations were generally unremarkable, Plaintiff demonstrated appropriate behavior, and noted records wherein the therapist opined Plaintiff's negative beliefs and boredom impacted Plaintiff's stopping work rather than a lack of ability. (Tr. 22). The Court finds no error in the ALJ's summary of medical treatment in assessing the severity of Plaintiff's non-exertional impairments. See 20 C.F.R. §§ 404.1529(c), 416.929(c); 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00, SSR 16-3p. While Plaintiff argues the ALJ erred in highlighting the therapist's findings regarding Plaintiff's motivation to work. Pl. Br. at 5. Social Security Ruling 16-3P allows an ALJ to review medical records which report about an individual's “efforts to work.” SSR 16-3P. While Plaintiff argues the ALJ's mischaracterization of evidence results in a reversible error, Plaintiff's argument fails to address the ALJ's totality analysis that also discussed Dr. Schnepp's opinion. As discussed above, substantial evidence supports the ALJ finding Dr. Schnepp's opinion persuasive and Dr. Schnepp opined Plaintiff did not meet the criteria for a mental health listing. Substantial evidence supports the ALJ's determination that Plaintiff does not meet the Listing. See Williams v. Sullivan, 970 F.2d 1178, 1186.
VII. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VIII. 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. 28