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recommending affirmance of ALJ decision where SVP level 2 jobs were identified and claimant was limited to "'occasional interaction with coworkers and supervisors, but no interaction with public'"
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CASE NO. 3:18-cv-01743-RDM-GBC
09-30-2019
JENNIFER LOU SMATHERS, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Jennifer Lou Smathers ("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)). 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 Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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 September 29, 2014, Plaintiff filed an application for Title XVI Supplemental Security Income ("SSI") of the Act, 42 U.S.C. §§ 401-433, 1382-1383, with a disability onset date of August 1, 2011. (Tr. 25, 87). Plaintiff alleged disability due to Crohn's disease, hypertension, joint pain, fevers, diarrhea, anxiety, immune system deficiency, and abdominal pain. (Tr. 87). Plaintiff waived her right to representation. (Tr. 50-51, 75, 79-80). Plaintiff, her mother, and her stepmother testified at the hearing. (Tr. 47-71). On June 6, 2017, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 22-43). Plaintiff sought review of the decision, which the Appeals Council denied on July 11, 2018, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-6).
On September 7, 2018, 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 9, 2018, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 4, 5). On December 26, 2018, Plaintiff filed a brief in support of the appeal. (Doc. 7 ("Pl. Br.")). On January 31, 2019, Defendant filed a brief in response. (Doc. 9 ("Def. Br.")).
III. ISSUES
On appeal, Plaintiff argues the following: (1) the Social Security Administration erred in failing to consider the report of Dr. Komar as new and material; (2) the ALJ failed to order an updated consultative examination of the Plaintiff and erred in failing to obtain letters from physicians regarding her disability; (3) the ALJ failed to challenge the vocational expert ("VE") concerning the reasoning requirements of the jobs she identified as within the residual functional capacity of the Plaintiff; and, (4) the ALJ did not properly consider the testimony of the Plaintiff's mother and stepmother. Pl. Br. at 8.
IV. BACKGROUND
Plaintiff was born in August 1966 and thus is classified by the regulations as a younger individual through the date of the June 2017 ALJ decision. (Tr. 37); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed one year of college and does not have past relevant work. (Tr. 54, 67, 149). ///
V. ANALYSIS
A. Sentence Six
Plaintiff argues the submission of the August 2017 opinion from Michael Komar, M.D. (Tr. 14) warrants remand. Pl. Br. at 10-11. Dr. Komar's August 2017 opinion came after the ALJ's June 2017 decision. The Appeals Council determined Dr. Komar's August 2017 opinion failed to "show a reasonable probability that it would change the outcome of the decision" and denied review. (Tr. 1-6).
When the Appeals Council denies review, evidence that was not before the ALJ may only be used to determine whether it provides a basis for remand under sentence six of section 405(g), 42 U.S.C. ("Sentence Six"). See Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Sentence Six requires a remand when evidence is "new" and "material," but only if the claimant demonstrated "good cause" for not having incorporated the evidence into the administrative record. Id. The Appeals Council requires "additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d 592.
In the August 2017 opinion Dr. Komar wrote:
[Plaintiff] is a 50-year-old woman with a history of ileal Crohn's disease, superimposed IBS, fibromyalgia, and anxiety and depression who complains of fatigue, listlessness, joint pain, and an irregular bowel pattern associated with lower abdominal cramping. Her last colonoscopy in March 2017 revealed a normal-appearing terminal ileum with unremarkable biopsies. Her joint pain involves her hands with morning stiffness, lower back and hips. She has attended an intensive outpatient program for management of her anxiety and depression, but does not sleep well. She lives alone (although her mother lives next door) and is dependent on her family for full financial support. Both her mother and brother have Crohn's disease.
Her medical regimen includes Asacol HD 800 mg two daily, Entocort 3 mg daily, gabapentin 100 mg TID (she feels foggy and cannot concentrate), acetaminophen 325 mg PRN, and ibuprofen 200 mg PRN (advised against).(Tr. 14). Dr. Kumar's August 2017 opinion summarizes Plaintiff's subjective complaints, fails to quantify work-based limitations and is not a retrospective opinion regarding Plaintiff's work-based limitations. (Tr. 14). The opinion that Plaintiff would not be employable at Geisinger does not is not probative. (Tr. 14); see 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3) (listing "[e]vidence that is inherently neither valuable nor persuasive"). To the extent that Dr. Kumar's letter expresses an opinion that Plaintiff's absenteeism, emotional lability, and mental health issues would present "major issues" for any employer, such opinion does not clarify what would be the employment "issues." Moreover, the opinion lacks the specificity to address non-exertional limitations in a manner that would create a dispute with the opinions of Drs. James Vizza, Psy.D. and Elizabeth Kamenar, M.D., opinions to which the ALJ allocated great weight. (Tr. 14, 37-38). Plaintiff has failed to demonstrate that this opinion would likely change the outcome of the decision. See 20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017). Although Plaintiff argues that her unrepresented status during the hearing demonstrates good cause for failing to obtain the medical opinion prior to the ALJ decision, the AC did not conclude that she lacked good cause, rather, the AC determined it was not reasonably probable that the additional evidence would change the outcome of the decision. (Tr. at 1-6); see 20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017). Moreover, her pro se status does not automatically entail that she met the good cause requirement. See Pennington v. Comm'r of Soc. Sec., 683 F. App'x 168, 171 (3d Cir. 2017) (finding a plaintiff's pro se status did not constitute good cause for her failure to submit additional material, consisting of a statement from her physician, where she knowingly waived her right to counsel and was able to submit numerous records to ALJ and present her case at hearing).
The primary concern conveyed by [Plaintiff] and those who care for her is her mental fogginess, chronic pain, and an inability to work. She is slow to process information or answer questions and doesn't want to be a hazard to others. She needs ongoing assistance to develop coping mechanisms to deal with stress, improve her inability, and reduce her social phobia. Under no circumstance would she be employable at Geisinger, and her absenteeism, emotional liability and ongoing mental health issues would be major issues for any employer.
B. Duty to Develop
Plaintiff argues the ALJ failed to order an updated consultative examination of Plaintiff and the ALJ erred in failing to obtain letters from Plaintiff's physicians regarding her disability and dismissing the contents of such letters without reviewing the letters. Pl. Br. at 8.
Plaintiff writes:
The ALJ relied heavily in the findings by the state's non-examining physicians in denying the Plaintiff's claim. ([Tr.] 37-38). The findings of these non-examining sources predated the hearing by 2 years. ([Tr.] 94, 96). An up to date analysis of the Plaintiff's condition was warranted. This is especially true since the Plaintiff was unrepresented and relying on the ALJ to assist her through the process. Additionally, the Plaintiff changed age categories approximately 7 months prior to the hearing. Out-of-date opinions from non-examining source as were insufficient to evaluate the Plaintiff's condition, especially in light of her change to closely approaching advanced age as of August 7, 2016.Pl. Br. at 11-12.
Elizabeth Kamenar, M.D., a state agency physician, reviewed Plaintiff's claim for benefits in May 2015 and opined that Plaintiff had the physical residual capacity to perform light work consistent with the ALJ's physical residual functional capacity assessment. (Tr. 92-94). James Vizza, Psy.D., a state agency psychologist, reviewed Plaintiff's claim for benefits in May 2015 and opined that, despite moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace, Plaintiff had the mental residual functional capacity to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment. (Tr. 90-92, 94-96). Dr. Vizza stated that Plaintiff presented no impairment that would prevent her from maintaining regular attendance, carrying out short, simple instructions, and making simple, work-related decisions. (Tr. 95). Dr. Vizza opined that Plaintiff is able to maintain socially appropriate behavior, ask simple questions, accept instructions, and work with others without distracting them. (Tr. 95).
In the June 2017 decision, the ALJ gave great weight to the May 2015 opinions of Drs. Kamenar and Vizza. (Tr. 37-38). Drs. Vizza's and Kamenar's review of the evidence included a treating source opinion from April 29, 2014, records from Rochester General Hospital, Geisenger Health System, and Blue Cross received from February to May 2015. (Tr. 88-94). Although Plaintiff argues the ALJ erred in relying on medical opinions generated two years prior, Plaintiff fails to demonstrate significant deterioration following the May 2015 opinions to suggest that the opinions would be less relevant to the ALJ's June 2017 analysis. 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). The ALJ thoroughly summarized the medical evidence leading up to the June 2017 decision. (Tr. 31-37). For evidence primarily regarding physical impairments from the beginning to 2015 until the June 2017 decision, the ALJ summarized:
On March 25, 2015, [Plaintiff reported that] she was anxious/not sleeping. She complained of joint aches and said she has diarrhea 4-8 times a day. On exam, her weight was 112 pounds, with a BMI of 19.93. The exam findings, including the abdomen and extremities were within normal limits (3F/pp. 4-6).
An April 29, 2015 psychiatry intake evaluation report . . . notes that [Plaintiff] was tearful, tangential, and highly distressed during the interview. She endorsed passive
suicidal ideation. No other mental status examination findings were noted (4F/pp. 8-11).
At a primary care visit on May 6, 2015, [Plaintiff's] examination findings were within normal limits. Both her Crohn's and her depression were "doing much better" (4F/pp. 3-4). [Plaintiff] also had an orthopedic visit on May 6, 2015. She complained of left knee pain and weakness (x2-3 years), with worsening pain over the past year. On exam, the left lower extremity revealed tenderness of the medial knee with full extension and positive McMuffay sign. The other findings in the left lower extremity and right lower extremity were within normal limits, including normal gait, no limp, and no assistive devices (4F/pp. 5-8). X-rays showed mild joint space narrowing and an MRI was suggested to determine if there was a meniscal tear (4F/p. 8).
[Plaintiff] had two psych therapy follow up visits in May 2015 (SF/pp. 40-41). On follow up with orthopedics in June 2015, the exam remained unchanged. The MRI showed no frank tear, only mild degeneration and mild thinning, and the provider just suggested conservative treatment (5F/pp. 37-40).
A June 2015 gastroenterology exam was within normal limits. Weight was reported as 105 pounds. [Plaintiff] requested higher pain meds (double Tramadol), and this request was forwarded to her primary care physician, but the request was refused. (5F/pp. 34-37).
[Plaintiff] saw her primary care physician in August 2015 for back pain. Her BMI was 18.67, and exam was within normal limits, including back, extremities, motor/sensory findings, and gait. The doctor suggested physical therapy. Then there is another telephone report of contact asking for different pain medications (SF/pp. 30-33).
[Plaintiff] had a colonoscopy and endoscopy in September 2015. These results were noted as "excellent" by her primary care provider (SF/p. 22). When [Plaintiff] saw her primary care physician in September 2015, she had multiple complaints. Her BMI was 18.62. Her weight was 101 pounds. She had swelling of the right 3rd MCP and 5th PIP. There was swelling, dark erythema, and tenderness. The back and the abdomen were within [normal] limits. There is a note by the primary care physician that [Plaintiff] wanted different medications, and since the doctor would not comply, she would find another (SF/20-22).
At an October 2015 rheumatology new patient visit, [Plaintiff] was tearful and frustrated. Her mood was depressed. Her BMI was 19.36 and the exam generally was within normal limits. The doctor noted that she did not fit any single arthritis diagnosis (5F/pp. 16-19).
In October 2015, [Plaintiff] saw pharmacy for pain meds. Percocet was discussed, but she would not give a urine sample. The pharmacist "[r]ecommended shredding
Percocet prescription and not prescribing controlled substances to this patient" (5F/p. 14 ).
In October 2015, [Plaintiff's] primary care provider noted a BMI of 19.38, and exam findings which were within normal limits. [Plaintiff's] Crohn's was noted as "doing well," but also unpredictable diarrhea was noted. In November 2015, rheumatology noted that a recent colonoscopy showed good control of Crohn's, and it was further noted that [Plaintiff] is not currently on any medications for Crohn's (5F/p. 5). Other than "Modified Schober's 10 cm," the exam findings were within normal limits (5F/p. 6).
A January 2016 gastroenterology follow up visit note lists a BMI of 19.2, and an exam which was within normal limits (6F/pp. 60-63). At a February 2016 rheumatology visit, there was bilateral hand tenderness, right Achilles tendon pain, and left knee tenderness. The other findings were within normal limits (6F/pp. 57-60). Xrays of the bilateral hands and lumbar spine were unremarkable (6F/pp. 80-86).
An April 2016 CT of the abdomen revealed no active or fibrostenotic Crohn's, a stable hemangioma, and a small cyst (6F/p. 79). An August 2016 gastroenterology follow up visit note indicates that [Plaintiff] "fell off her motorcycle today upon arriving to her appointment." On exam, her weight was 107 pounds and her BMI was 19.57. The exam was within normal limits (6F/pp. 29-31).
At a September 2016 rheumatology follow up visit, the claimant was tearful and anxious, but the physical exam was within normal limits including grip. Fibromyalgia was noted as one of the diagnoses (6F/pp. 26-29).
[Plaintiff] saw a new primary care physician in November 2016. Her BMI was 20.1, with essentially normal exam findings (6F/pp. 23-26). She was seen a week later by another primary care physician. She noted that she did not start the medications given for anxiety. She was tearful, but physical examination was within normal limits (6F/pp. 21-23). A few weeks later, she reported that she was calmer with medications. Her BMI was 19.91 and the other findings were also within normal limits. When the doctor had her sign a medication usage agreement, [Plaintiff] reported that she has been intermittently using oxycodone from her last prescription in January 2016. Urine toxicology returned with cannabis, and [Plaintiff] had not reported that she had been using cannabis. The doctor commented on concerns about her truthfulness (6F/pp. 17-20).
At a December 2016, gastroenterology visit, her weight was 110 pounds (6F/pp. 16-17). A January 2017 gastroenterology telephone report of contact indicates that the claimant reported abdominal cramping and diarrhea (x2 weeks) (6F/p. 15). She was seen by her primary care physician a week later, and her weight was still 110 pounds, with a BMI of 20.23, and exam was within normal limits (6F/pp. 13-15).
At a January 2017 gastroenterology visit, her weight was listed as 109 pounds. The abdomen was within normal limits (6F/p. 13). A February 2017 colonoscopy report indicates that the perianal and digital rectum were normal, but the test was unable to be finished and had to be aborted due to stool in rectum (6F/pp. 5-6). At the February 2017 pre-procedure assessment, [Plaintiff's] weight was 110 pounds and her BMI was 20.16. Her mental status examination and lungs were within normal limits (6F/p. 4).(Tr. 34-36). For mental health treatment from 2015 until the June 2017 decision, the ALJ summarized:
At the March 2017 hearing, [Plaintiff] testified that her average weight is 105-110 pounds (Hearing Testimony).
In March 2015, [Plaintiff] reported anxiety, but no mental status examination findings were noted. There was a telephone report of contact where she was given a psychiatry referral. An April 29, 2015 psychiatry intake evaluation report . . . noted that she was tearful, tangential, and highly distressed during the interview. She endorsed passive suicidal ideation. No other mental status examination findings were noted. The doctor noted that she would need approximately 2 sessions (4F/pp. 8-11).
In May 2015, [Plaintiff] told her primary care physician that, with her new medications, she has had improvement in her symptoms ( 4F/pp. 3-4). Follow up notes from the psychologist in May 2015 indicate that [Plaintiff] was improving. She was less anxious with no panic (SF/pp. 40-41).
In August 2015, [Plaintiff's] primary care provider noted that claimant was a "no show" for her psych appointment. She should have been out of her meds, but she reported that she is only taking one-half of pill daily (5F/pp. 30-31 ).
On April 13, 2016, [Plaintiff] saw psychiatry on a rheumatology referral. She was tearful. Her thought content was focused on pain, anxiety. Her cognition was normal except she was confused about which way to turn in the hallway and which chair to sit in. The other findings were within normal limits (6F/pp. 49-53).
In June 2016, psychiatry noted that [Plaintiff] endorsed passive suicidal ideation but she denied suicidal plan or intent. No other mental status examination findings were noted. She was given a referral to the intensive outpatient program (IOP) (6F/p. 46). She attended the program. On June 15, 2016, she denied suicidal ideation (6F/p. 43). On June 20, 2016, [Plaintiff] reported going on a motorcycle ride over the weekend. She reported cannabis use but did not disclose the amount or last use, other than stating "weeks ago." She said she had plans to go away for the weekend (6F/p. 42). On June 22, 2016, she was anxious and depressed. The other findings were within normal limits (6F/pp. 39-40). On June 27, 2016, she was
"much more calmer" and the other findings were also within normal limits (6F/pp. 36-38).(Tr. 36-37). Plaintiff does not point out relevant omissions that would contradict the medical findings summarized from 2015 to 2017.
The July 2016 notes indicate that [Plaintiff] had plans for lunch with a friend and she was going to a family picnic the next day. She was to be discharged from the intensive outpatient program on July 8, 2016. Mental status examination was within normal limits (6F/pp. 31-35).
In November 2016, [Plaintiff's] primary care physician referred her back to psych (6F/p. 22), and in January 2017, it was noted that she had still not made the appointment (6F/p. 14).
Plaintiff also argues the ALJ failed to obtain letters from her gastroenterologist and primary care physicians from 2012 (Pl. Br. at 15-16), however, Plaintiff does not proffer the letters on appeal. See Herring v. Colvin, 181 F. Supp. 3d 258, 269 (M.D. Pa. 2014). The ALJ observed "there is no indication that these doctors actually completed a form or letter as requested," (Tr. 38) and Plaintiff fails to present any evidence that these letters exist. The record indicating Plaintiff requested a letter to be generated(Tr. 318) does not demonstrate the existence of the letter, just the existence of the request. The record includes treatment from August 2010 from Geisinger Health System (267-456) (which includes the letter request) and the ALJ noted a September 2011 visit with her gastroenterologist (Tr. 363), December 2011 gastroenterology reports (Tr. 359-61), May 2012 Gastroenterology report (Tr. 314), June 2012 gastroenterology (Tr. 308). The undersigned finds no reversible error regarding the ALJ's treatment of Plaintiff's request for doctors to generate opinion letters.
The burden still "lies with the claimant 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." Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987), and 20 C.F.R. §§ 404.1512(a) and 416.912(a)). "While an ALJ is required to assist the claimant in developing a full record, he or she has no such obligation to 'make a case' for every claimant." Kenyon v. Colvin, 2013 WL 6628057 (M.D. Pa. 2013). "The decision to order a consultative examination is within the sound discretion of the ALJ." Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002). Under the regulations, the Commissioner "may" request a claimant to attend a consultative examination. 20 C.F.R. § 416.912. The regulations authorize the ALJ to obtain a consultative examination if there remains information needed to make a disability determination, "such as clinical findings, laboratory tests, a diagnosis or a prognosis" which cannot be obtained from the medical record. 20 C.F.R. § 416.919a. Such an examination may be requested when the Commissioner is not presented with the information that is necessary to make a decision or is presented with inconsistent information. 20 C.F.R. § 416.919a(a)-(b). If the inconsistency or lack of information does not allow the Commissioner to make a decision, the Commissioner may take follow-up steps to develop the record, including by re-contacting a medical source. Id. at (b)(2)(i); see also Swink v. Saul, No. 18-1850, 2019 WL 3402477, at *3 (8th Cir. July 29, 2019); 20 C.F.R. §§ 404.1519a, 416.919a.
Notwithstanding the ALJ's duty to develop the record, a plaintiff must show clear evidence of prejudice and a claimant's unrepresented status and has knowing waiver this right, alone, is not sufficient for remand. See Herring v. Colvin, 181 F. Supp. 3d 258, 268-69 (M.D. Pa. 2014). If it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand, or reversal. Herring v. Colvin, 181 F. Supp. 3d 258, 268-69 (M.D. Pa. 2014). "The question is not 'whether every question was asked which might have been asked had [the claimant] been represented by an attorney, [but] whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.'" Jozefick v. Shalala, 854 F.Supp. 342, 344 (M.D.Pa.1994) (quoting Edwards v. Sullivan, 937 F.2d 580, 585-86 (11th Cir. 1991)).
In Herring v. Colvin, the plaintiff "points to the types of things that the ALJ did not do, e.g., she did not assist Plaintiff in reformulating her comment [about being unable to sit or stand for too long] after the VE's testimony into a properly worded hypothetical question" and "counsel would have asked additional questions of the VE that would have encompassed additional medically-supported functional limitations." Herring at 269. The Court rejected this argument explaining:
Plaintiff is conflating the two requirements for a remand based on failure to develop the record. An ALJ must have failed to develop the record, and prejudice must be shown. . . . Plaintiff has failed to proffer or describe any additional evidence the ALJ should have considered and has failed to make any new argument based on existing evidence.Herring v. Colvin, 181 F. Supp. 3d 258, 269 (M.D. Pa. 2014). Similar to the facts in Herring v. Colvin, Plaintiff fails to direct the Court to any contradictions or omissions in the record which would require the ALJ to request additional medical opinions and failed to provide additional evidence or new arguments that would change the outcome of the case. As discussed above, the August 2017 opinion from Michael Komar, M.D. is not significantly probative to warrant a remand. With testimonial evidence, medical opinions, and submitted medical history, the ALJ was presented with sufficient information to make a decision and acted properly within the scope of her discretion by not ordering consultative examinations or attempting to obtain letters that Plaintiff has not demonstrated to exist. See 20 C.F.R. §§ 416.912, 416.919a(a)-(b); Thompson v. Halter, 45 F. App'x 146, 149 (3d Cir. 2002); Streeter v. Colvin, No. 3:12-CV-267, 2013 WL 5888088, at *4 (M.D. Pa. Oct. 31, 2013); see also Swink v. Saul, No. 18-1850, 2019 WL 3402477, at *3 (8th Cir. July 29, 2019); Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007) ("The ALJ is not required to order such [consultative] examinations, but may do so if an applicant's medical evidence about a claimed impairment is insufficient."); Herring v. Colvin, 181 F. Supp. 3d 258, 269-72 (M.D. Pa. 2014).
C. ALJ's Evaluation of VE Testimony
Plaintiff urges that remand is warranted in this instance due to her unrepresented status resulting in the ALJ's "less-than-effective" attempt to challenge the conclusion of the VE. Pl. Br. at 12 (citing Dombrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979)). This alleged "less-than-effective" questioning by the ALJ resulted in jobs identified by the VE requiring a reasoning level 2 which Plaintiff argues conflict with the RFC limiting jobs to simple and routine tasks and conflicts with the Dictionary of Occupational Titles. Pl. Br. at 13. Plaintiff argues:
In the present matter, the VE's testimony conflicts with the Dictionary of Occupational Titles (DOT) because, according to the DOT, an individual who is limited to jobs involving simple, routine tasks could not perform work as an inspector (DOT # 762.687-014), product assembler (DOT # 706.684-022), and a finisher (DOT # 781.687- 070) as these jobs entail a reasoning level of 2. These functions are part of the General Educational Development ("GED") of the job, which "embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance."Pl. Br. at 13. For non-exertional limitations, the ALJ found that Plaintiff had an RFC to perform "simple, routine tasks, but no complex tasks, in a low stress environment, defined as occasional decision making and occasional changes in work setting" and "occasional interaction with coworkers and supervisors, but no interaction with the public." (Tr. 30). The VE testified that based on the given RFC, an individual would be able to perform the requirements of representative occupations such as: (1) an inspector (DOT No. 762.687-014, Light, Unskilled (SVP 2)); (2) a product assembler (DOT No. 706.684-022, Light, Unskilled (SVP 2)), and; (3) a finisher (DOT No. 781.687-070, Light, Unskilled (SVP 2)). (Tr. 39-40).
The Third Circuit has found no contradiction between and RFC requiring "simple" jobs with a reasoning level of 2 requiring the application of "commonsense understanding to carry out detailed but uninvolved written or oral instructions." See Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004). Plaintiff's lack of representation for the questioning of the VE does not require reversal. See Herring v. Colvin, 181 F. Supp. 3d 258, 268-69 (M.D. Pa. 2014). Social Security Ruling 00-4p instructs the ALJ to seek guidance from the VE when the DOT does not include all the information:
Evidence from VEs or VSs can include information not listed in the DOT. The DOT contains information about most, but not all, occupations. The DOT's occupational definitions are the result of comprehensive studies of how similar jobs are performed in different workplaces. The term "occupation," as used in the DOT, refers to the collective description of those jobs. Each occupation represents numerous jobs. Information about a particular job's requirements or about occupations not listed in the DOT may be available in other reliable publications, information obtained directly from employers, or from a VE's or VS's experience in job placement or career counseling.Policy Interpretation Ruling: Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4P (S.S.A. Dec. 4, 2000). The ALJ followed the regulations and questioned the VE, who testified from her knowledge of the workplace, an individual with the Plaintiff's RFC could perform occupations such as an inspector, a product assemblerm and a finisher. (Tr. 39-40).
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.
The undersigned finds no reversible error in the VE's identification of jobs consistent with the limitations of the RFC. /// ///
D. Evaluation of Lay Testimony
Plaintiff argues the ALJ did not properly consider the testimony of the Plaintiff's mother and stepmother. Pl. Br. at 8. Regarding the testimony the ALJ wrote:
[Plaintiff's] mother . . . testified that she sees [Plaintiff] every day. She said she helps [Plaintiff] with the dishes and cleaning. She said she handles all [Plaintiff's] finances because [Plaintiff] has a focus disorder. She said [Plaintiff] has a lot of bathroom issues. She said [Plaintiff's] medications make her very tired and she sleeps a lot. She said [Plaintiff] is "off balance." She said [Plaintiff] plays board games and watches television with her grandchildren.(Tr. 32). Presumed bias based on familial status is an improper reason to reject the lay testimony. See SSR 16-3p ("other source" evidence include "non-medical sources such as family and friends"); 20 C.F.R. § 404.1513(e)(2); 20 C.F.R. §§ 404.1513(a)(4), 416.913(a)(4) (effective March 2017) (defining evidence from nonmedical sources and its admissibility); Mantell v. Berryhill, No. 3:17-CV-00128, 2018 WL 3060087, at *7 (M.D. Pa. May 30, 2018), report and recommendation adopted, No. 3:17-CV-128, 2018 WL 3060037 (M.D. Pa. June 20, 2018) (discussing ALJ duty to address non-medical evidence); see also Wells v. Colvin, No. CV 3:15-0972, 2016 WL 5462033, at *5 (M.D. Pa. Sept. 29, 2016). However, the ALJ provided sufficient reason and analysis to support allocating less weight to the lay statements explaining "[s]ome of their statements are not consistent with the preponderance of the persuasive medical evidence." (Tr. 36); see Wells v. Colvin, No. CV 3:15-0972, 2016 WL 5462033, at *5 (M.D. Pa. Sept. 29, 2016). The witnesses testified that they help Plaintiff with finances and chores, alleged Plaintiff has difficulty focusing, frequently experiences fatigue, and has a lot of bathroom issues. The ALJ addressed the medical records pertaining to all of the symptoms alleged by the witnesses from gastroenterology, medical records regarding urinary tract infections, and Crohn's Colitis/Ileitis, Irritable Bowel Syndrome (IBS), anxiety, depressive disorder, pain, Post-Traumatic Stress Disorder (PTSD), arthralgia and Fibromyalgia. (Tr. 27-39). The Court finds that the ALJ's error was harmless and the ALJ's additional reason is sufficient to uphold the decision. See Wells v. Colvin, No. CV 3:15-0972, 2016 WL 5462033, at *5 (M.D. Pa. Sept. 29, 2016); Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
[Plaintiff's] stepmother . . . testified that she sees [Plaintiff] at least once a week and she spends several hours with her. She said [Plaintiff] is "always hurting and tired." She said [Plaintiff] cannot focus well. She said [Plaintiff] tries to do activities at home (i.e., laundry, dishes, sweeper), but it "really wears her out" (Hearing Testimony).
The undersigned gives the mother's statements and the stepmother's statements partial weight. While they appear to have some first-hand knowledge of [Plaintiff's] daily activities and limitations, they cannot be considered disinterested third party witnesses whose statements would not tend to be colored by affection for [Plaintiff] and a natural tendency to agree with the symptoms and limitations [Plaintiff] alleges. Some of their statements are not consistent with the preponderance of the persuasive medical evidence, as further explained below.
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: September 30, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE