Opinion
Civil No. 1:16-CV-00496
03-13-2017
DAVID A. WALTER, Plaintiff, v. CAROLYN W. COLVIN Acting Commissioner of Social Security Defendant.
(Chief Judge Conner)
( ) REPORT AND RECOMMENDATION
I. Introduction.
Plaintiff David A. Walter ("Mr. Walter"), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we have found that the final decision of the Commissioner of Social Security is supported by substantial evidence. Accordingly, it is recommended that the final decision of the Commissioner denying Mr. Walter's claim be affirmed.
II. Procedural History.
Before filing the application for disability insurance benefits under Title II of the Social Security Act that is at issue in this case, Mr. Walter had filed a prior application for benefits. In connection with that prior application, on May 2, 2014, Administrative Law Judge ("ALJ") Theodore Burock issued a decision concluding that Mr. Walter was not disabled from August 24, 2010, through May 2, 2014. Admin. Tr. at 51. On February 7, 2015, the Appeals Council denied Mr. Walter's request for review of that decision. Id. at 69.
On April 10, 2015, Mr. Walter filed another application for disability insurance benefits. Admin. Tr. at 138. He asserted that he became unable to work on May 2, 2014. Id. He listed the following conditions as limiting his ability to work: migraines, sleep apnea, insomnia, COPD, Asthma, Tennitus, PTSD, Depression, Bulging disc in neck, Hypertensive. Id. at 180. It is this second application that forms the basis of this case.
After the Commissioner denied Mr. Walter's claim at the initial level of administrative review, Mr. Walter requested and was granted an administrative hearing. On October 9, 2015, with the assistance of counsel, he testified at a hearing before ALJ Daniel Myers. Admin. Tr. at 27-47.
Determining that Mr. Walter was not disabled within the meaning of the Social Security Act from May 2, 2014, through September 30, 2014, which was the date Mr. Walter last met the requirements to be insured ("date last insured"), on November 16, 2015, ALJ Myers, denied Mr. Walter's application for benefits. Admin. Tr. at 8-26. Mr. Walter appealed the ALJ's decision to the Appeals Counsel, which denied his request for review on January 20, 2016. Id. at 1-7. This makes the ALJ's 2015 decision the final decision of the Commissioner subject to judicial review by this Court.
Although Mr. Walter identifies May 2, 2014, as his onset date in his complaint, in the opening, background section of his brief, he asserts that he "had an onset date alleging disability beginning on May 2, 2014, which was amended to August 24, 2010," Doc. 5 at 1. Mr. Walter does not, however, make any argument that the ALJ erred by limiting the period at issue in this case to the time from May 2, 2014, to September 30, 2014, and we do not consider Mr. Walter's passing reference to a different onset date as raising such an argument.
On March 23, 2016, Mr. Walter initiated this action by filing a complaint in this Court claiming that ALJ Miller's decision was not supported by substantial evidence and that the ALJ committed an error of law. Doc. 1. On May 31, 2016, the Commissioner filed an answer and a certified transcript of the administrative proceedings. Docs. 3 & 4. This matter has been briefed by the parties and is ripe for decision. Docs. 5 & 6.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court, therefore, is not whether Mr. Walter was disabled, but whether the Commissioner's finding that he was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D.Pa. 1981) ("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting hat the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
B. Initial Burdens of Proof , Persuasion, and Articulation for the ALJ.
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A); see also 20 C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5); 20 C.F.R. §§404.1512; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
IV. Medical History and Testimony.
A. Medical Records.
1. Department of Veterans Affairs Rating Decision.
Mr. Walter is a veteran. Sometime prior to October 15, 2010, the Department of Veterans Affairs ("VA") concluded that Mr. Walter had service-related disabilities. On October 15, 2010, the VA issued a rating decision increasing Walter's service-related disability for his right shoulder impairment, which the VA described as "right supraspinatus tendonopathy with right acromioclavicular joint space narrowing, status post right shoulder arthroscopy" from 0% to 10%. Admin. Tr. at 346. The VA determined that Mr. Walter had other service-related conditions—sleep apnea, migraine headaches, hypertension, bilateral hearing loss, and dermatitis of the left forearm—that had not changed. Id. at 347. Thus, it did not change its rating of those conditions leaving him assigned a 50% rating for sleep apnea, a 30% rating for migraine headaches, a 10% rating for hypertension, a 0% rating for bilateral hearing loss, and a 0% rating for dermatitis left forearm. Id. The VA found that Mr. Walter's "overall or combined rating is 80%," but that he is "being paid at the 100% rate because [he] [was] granted entitlement to Individual Unemployability." Id.
It is not clear how the VA arrived at this 80% figure given that adding the stated percentages (10 % for the shoulder impairment, 50% for the sleep apnea, 30% for the migraine headaches, and 10% for the hypertension) together for all of Mr. Walter's conditions equals 100%, not 80%. But, as stated in the VA's decision, Mr. Walter was nevertheless being paid at the 100% rate.
2. General Medical Treatment.
On June 5, 2013, Mr. Walter saw Physician Assistant Russell Miller of the Evelyn G. Frederick Health Center complaining of migraines and shortness of breath. Admin. Tr. at 231-234. Miller ordered some lab studies, prescribed Decadron and Kenalog, and recommended a follow-up appointment in four months. Id.
On September 19, 2013, Mr. Walter saw Maryann Gushue, M.D. at the Lebanon VA Medical Center for a follow up. Admin. Tr. at 238. He complained of headaches and chronic sinusitis, and he reported that he has both migraine and sinus headaches, that he is not taking Vicodin, and that he is using ibuprofen/tramadol during the day and if his headache is bad, he uses Imitrex. Id. He also reported using the elliptical machine at home two to four times a day. Id. Dr. Gushue's report of her physical exam of Mr. Walter appeared normal; she recorded the following:
General: alert, over-nourished in no acute distress.Id. at 239. Dr. Gushue's medical notes also show that she "reviewed available lab results both normal and abnormal," and that Mr. Walter's hypertension was "controlled," his GERD was "stable," this COPD was "improved," and that he has sleep apnea, headaches, and cervical discogenic disease. Id. She suggested a follow-up appointment in six months. Id.
Neck: No lymphadenopathy/thyromegaly. Carotids +2 without bruit.
Lungs: Clear to auscultation
Cor: Regular rate and rhythm, no murmurs, gallops, clicks
Abdomen: NABS, non-tender, no mass or bruits, no hepatosplenomegaly.
Extremities: No edema.
Nuero: no focal abnormalities.
Psych: Appropriate mood/affect.
On October 9, 2013, Mr. Walter called the VA medical center stating that he keeps running out of Combivent, which he uses four times a day and that he would like a refill mailed to his home. Admin. Tr. at 236. In response, a pharmacist spoke to Mr. Walter and reminded him that that the maximum dosage for his Combivent was 6 puffs daily, that he should use his nebulizer when at home, and that he should save the Combivent for when he leaves his home. Id. Mr. Walter complained of poor control of his COPD and of nighttime awakenings. Id. The pharmacist discussed past therapeutic trials, and Mr. Walter told him that albuterol does not work well for him, and although the pharmacist saw from past medical notes that Mr. Walter had tried Spiriva, but quickly switched because he did not feel well, Mr.Walter did not remember trying Spiriva. Id. Because of Mr. Walter's complaints, the pharmacist noted that he will make a follow-up appointment with Dr. Gushue. Id.
On February 18, 2014, Mr. Walter called the VA medical center stating that he is unable to wear his CPAP mask, and he requested home oxygen to help with his breathing. Admin. Tr. at 235. He also requested to have his nebulizer, which had a few broken pieces, fixed. Id. The next day, Mr. Walter was told to bring his equipment to his appointment. Id.
At an appointment with Dr. Gushue on March 19, 2014, Mr. Walter reported new stressors in his life; he reported that his wife was let go from her job, that her unemployment just ran out, and that his brother-in-law died. Admin. Tr. at 266. He also identified being disabled as a stressor. Id. He asserted that he "feels he is managing ok." Id. Mr. Walter also reported that his headaches, both migraine and sinus, continue, that he takes Imitrex, and that he sleeps with relief of migraine. Id. Mr. Walter and Dr. Gushue dicussed butterbur for migraine prophylaxis. Id. Under a section of the medical record for this appointment, Dr. Gushue noted the status of Mr. Walter's chronic medical problems: as to his hypertension, she noted that he checks his blood pressure outside the office and noted that it was 138-140/84; as to his hyperlipidemia, she noted that he has no myalgia on prava; as to his GERD, she noted "no hb on omeprazole" and that he has no abdominal pain or change is his stools; as to his COPD, she noted that he needs his nebulizer three to four times a day and that he has been out of Symbicort for three days; as to his alcohol consumption, she noted that he drinks less that before; as to his sleep apnea, she noted that he is intolerant of the CPAP; as to his cervical discogenic disease, she noted that he reports good and bad days and she noted "C spine MRI-DDD c4-5 with spondylosis/disc bulge"; as to his surgically repaired right shoulder, she noted that he uses light weights daily and that he "can get numbness." Id. at 367. As far as exercise, Dr. Gushue listed "yard work in summer, elliptical at home 2-4x/day." Id. Dr. Gushue did not note any abnormal findings on her physical examination of Mr. Walter. Id. at 268. Mr. Walter also reported that his sleep is terrible, that he gets only three to four hours a night, and that he flips around regardless of whether he is using his CPAP." Id. Mr. Walter also reported "searching for [a]ir" at that end of a workout. Id. Dr. Gushue also noted Mr. Walter declined a respiratory consultation, but he will go to the respiratory department to check about a different CPAP mask. Id.
Butterbur, "a shrub that grows in Europe and parts of Asia and North America, typically in wet, marshy ground," is used by some as a natural remedy for, among other things, migraines. https://nccih.nih.gov/health/butterbur.
On March 19, 2014, Mr. Walter was issued an "S9 VPAP machine for intolerance to CPAP pressures," he was instructed on its used, and scheduled for a three-month follow up in the sleep clinic to check compliance. Admin. Tr. at 265.
On October 27, 2014, a non-formulary request for Singulair was initially denied; it was noted that Mr. Walter has documented exercise-induced bronchospasm, that he was approved for a short trial of the Singulair and that the prescription continued to be processed past the approval date. Admin. Tr. at 263. In response to an inquiry about whether Mr. Walter takes the Singulair daily or as needed, Mr. Walter told a nurse that uses it daily and that he has noticed a significant improvement in his breathing even after increased activity. Id. at 263-265. He requested to continue with this medication. Id. at 265.
On February 23, 2015, Dr. Gushue saw Mr. Walter for a follow-up appointment. Admin. Tr. at 261. Mr. Walter told Dr. Gushue that his wife had found a new job, that their finances had improved, but that he gets stressed watching the news and seeing towns overtaken by ISIS. Id. He also reported that since driving truck in a convoy in Iraq, it bothers him if someone follows him too closely in a vehicle. Id. He reported almost daily headaches and bad headaches several times a week. Id. He takes tramadol or ibuprofen, and Dr. Gushue recommended a trial of daily magnesium. Id. Dr. Gushue noted that Mr. Walter's COPD was stable but that he reported being short-winded if he shovels snow and that he used his nebulizer three to four times a day. Id. at 262. As far as his sleep apnea, Mr. Walter reported that he uses two Breathe Right nasal strips and nasal spray. Id. Although Mr. Walter was intolerant of the CPAP and BiPap, and he reported that his wife wakes him "doing crazy things in his sleep," Mr. Walter was not interested in a referral to a sleep specialist. Id. Mr. Walter reported good days and bad days with his cervical discogenic disease. As to his surgically repaired right shoulder, he reported using light weights daily, but he noted that he can still get numbness into his right arm and 4th and 5th fingers. Id. As far as exercise, Dr. Gushue listed "yard work in summer, elliptical at home 4x/day." Id. Dr. Gushue did not note any abnormal findings on her physical examination of Mr. Walter. Id. at 263.
The next day, Mr. Walter called the VA medical center and stated he would like an appointment with the respiratory department as discussed at his appointment the day before. Admin. Tr. at 308. Stating that he has a lot on his mind and would like to see someone, he also requested a behavioral health consultation. Id.
On March 18, 2015, Mr. Walter had an abnormal pulmonary function test, which, according to the pulmonologist, showed "moderate obstructive airway with no significant bronchodilator response suggestive of moderate COPD," "moderate diffusion defect," a decrease in his forced vital capacity and total lung capacity "suggestive of added restriction." Admin. Tr. at 272. The pulmonologist also noted that the test showed an 8% improvement in "FEV1" from a previous test in September of 2010. Id.
At an appointment with Dr. Gushue on August 26, 2015, Mr. Walter reported that he had increased stress at home. Admin. Tr. at 282. His wife was diagnosed with cancer and underwent surgery and chemotherapy. Id. He noted that she returned to work and her spirits are good. Id. Mr. Walter informed Dr. Gushue of his several meetings with the PTSD team. Id. He reported that he continues to have headaches, but they were worse when his wife was in the hospital and undergoing chemotherapy. Id. He takes tramadol or ibuprofen. Id. The status of his chronic medical problems remained essentially the same except he noted that his COPD while stable, is more symptomatic on hot, humid days or cold, damp days, and the pain in his right shoulder depends on how much he uses it. Id. It was noted that his body-mass index on March 19, 2014, indicated that he was obese, that it has since increased, and that he would benefit from participation in a weight management program. Id. at 284. Nothing new was noted in relation to his physical examination. Id. at 283.
3. Mental Health Evaluation and Treatment.
On March 2, 2015, a psychology technician Steven Gerke conducted a baseline assessment of Mr. Walter by telephone. Admin. Tr. at 259. Mr. Walter "reported significant symptoms of depression and traumatic stress." Id. He reported experiencing combat in Iraq, as well as symptoms of anxiety and drinking more than recommended. Id. He relayed that he was unable to work in the winter due to physical pain and that he only sleeps two hours a night. Id. He reported daily or near daily pain, which he rated as a 7 on scale from 0-10, with 10 being the worst pain. Id. at 260. He also rated the interference with his daily activities because of the pain as a 7, on a scale from 0-10, with 10 being complete interference. Id. He expressed interest in speaking to a clinician about pain management. Id. at 259. Gerke recommended a follow-up telephone behavioral health consultation to determine the most appropriate care. Id. at 261.
On March 9, 2015, psychologist Kevin Kelly conducted a behavioral health consultation with Mr. Walter over the telephone. Admin. Tr. at 257. Mr. Walter again "reported significant symptoms of depression and traumatic stress." Id. He reported experiencing combat in Iraq and discussed what he experienced there. Id. Again, he reported symptoms of anxiety and drinking more than recommended. Id. He relayed that he was unable to work in the winter due to physical pain and that he only sleeps two hours a night. Id. He also explained that he did not seek treatment previously because he was afraid of the stigma that might be attached to his seeking treatment. It was noted that Mr. Walter was taking Ambien for anxiety and sleep, and that he "declined psychiatry." Id. He reported daily or near daily pain, which he rated as a 7 on scale from 0-10, with 10 being the worst pain. Admin. Tr.at 258. He also rated the interference with his daily activities because of the pain as a 7, on a scale from 0-10, with 10 being complete interference. Id. Dr. Kelly noted that his Mr. Walter was "low risk," that Mr. Walter was provided with information and literature, and that Mr. Walter was referred to the Camp Hill Community Based Outpatient Clinic for a PTSD Clinical Team evaluation because Camp Hill is closer to Mr. Walter's home. Id.
In April of 2015, Mr. Walter cancelled his PTSD Clinical Team appointment/intake because of a serious health issue with his wife. Admin. Tr. at 298. In June of 2015, however, he called to reschedule that appointment noting that his wife had cancer surgery and is undergoing chemotherapy. Id. at 293.
On August 13, 2015, Mr. Walter had a consultation/interview with the PTSD Clinical Team, the purpose of which was to assess his complaints of PTSD and to recommend treatment. Admin. Tr. at 287. In response to inquiries about his daily activities and functioning, Mr. Walter reported that his hobbies include "Gym (elliptical); used to ride motorcycle; watching football." Id. at 288. He also reported that he is able to complete activities of daily living independently and that he is capable of maintaining household chores. Id. He reported trauma from his military service and stress from his wife's cancer and ISIS. Id. He also noted that his medical conditions, especially his breathing problems, were worsening, and he rated his pain as an 8. Id. at 288-289. On examination, Mr. Walter was oriented to time, place, person, and event; his appearance was informal/casual; his attitude was cooperative and friendly; his attention and memory were within normal limits; his affect was congruent; his mood was depressed; his thinking and speech were unremarkable; his insight and judgment were below average/fair; and he had no perceptual distortions or hallucinations. Id. at 289. The PTSD clinical team concluded that Mr. Walter was not an imminent risk for violence of other harmful behavior. Id. at 290. The team made a provisional diagnosis of "Unspecified Trauma—and Stressor-Related Disorder," and a follow-up appointment was scheduled for Mr. Walter with Dr. Harig. Id. at 292.
On August 21, 2015, Mr. Walter met with the PTSD Clinical Team, which included Dr. Harig. Admin. Tr. at 284. Mr. Walter's thought processes and communications were not impaired; his mood was anxious and congruent with affect; he expressed no suicidal plan or intent; and he was considered "at low imminent risk." Id. at 284-285. Nothing unusual or negative was noted in connection with his examination. Id. at 285. The diagnostic impression of the PTSD Clinical Team was that Mr. Walter had PTSD. Id. After the team discussed treatment recommendations and alternatives with Mr. Walter, the plan was that Mr. Walter "participate in a weekly skills development class focusing on the development of PTSD symptom management skills." Id. at 286.
On September 3, 2015, September 10, 2015, September 17, 2015, and October 1, 2015, Mr. Walter participated in 90-minute group PTDS Symptom Management classes. Admin. Tr. at 338-341. At each class, he participated, he expressed no emergent issues, and he denied suicidal/homicidal ideations. Id. The PTSD Clinical Team did not observe any cognitive impairments, and it considered Mr. Walter to present a low imminent risk of harm to himself or others. Id. At the September 3, 2015 class, Mr. Walter had a positive mood and congruent effect, at the September 19, 2015, and October 1, 2015 classes, he had a neutral mood and congruent effect, and at the September 17, 2015 class, he had an anxious mood and congruent effect. Id. At the September 17, 2015 class, Mr. Walter was able to identify how his thoughts were increasing his anxiety and anger, he acknowledged the power his thoughts had over his emotions, and he was able to recognize the location of physical arousal and tension in his body and use coping strategies to reduce it. Id. at 339. He expressed "continued relief in symptoms." Id. The notes for each class, include the diagnosis for Mr. Walter as "Unspecified Trauma—and Stressor-Related Disorder." Id. at 338-341.
B. Testimony at the Hearing Before the ALJ.
Two witnesses testified at the hearing—Mr. Walter and vocational expert (VE) Cheryl Bustin.
1. Mr. Walter's Testimony.
Mr. Walter, who was 49 years old at the time of the hearing, testified that he has high school diploma. Admin. Tr. at 31. He lives with his wife, who works outside the home. Id. at 32. He last worked in 2009, part-time, at Weis Markets stocking produce. Id. at 31. In response to a question about why the stopped that work, Mr. Walter testified that he was having a lot of trouble with stress, with his breathing, and with headaches as well as a lot of pain issues. Id. According to Mr. Walter, he had to take off work for a couple of appointments, and Weis fired him. Id. at 35. He has not looked for work since because he thought that if he could not hold a job at Weis, he would not qualify for anything. Id.
Before working at Weis, he worked at the post office as a custodian. Id. at 32-33. He testified that because of the dust and lighting at the post office, he had constant headaches, and every day he felt bad after he was there for a couple of hours. Id. at 33. He was missing "at least a day or two a week" because of his headaches and respiratory problems, and the post office was in the process of firing him. Id. at 32-34. According to Mr. Walter, he quit, however, before they could fire him because he was worried about a termination being on his record. Id. at 32-33.
Mr. Walter also testified that at the time he was at the post office, he was having problems with his PTSD. Id. at 33. According to Mr. Walter, he had received treatment for a short while for his PTSD, but fearing that he would be "pigeon-holed" and would not be able to get a job, he postponed further treatment. Id. at 33. He testified that his PTSD symptoms became "really bad again." Id. He testified about the PTSD program that he started in the summer of 2015, and that it is teaching him some ways to manage his symptoms, but that it does not get rid of his symptoms and "it never will." Id. He described the symptoms of his PTSD as including anger, trouble dealing with traffic because of his experience in convoy security in the military, and trouble dealing with people and crowds. Id. at 36-37. He also testified that he constantly has racing thoughts, that he sleeps only about two hours a night, and he has awakened "from these thoughts a lot, dreams." Id. at 37. According to Mr. Walter, when he goes to the grocery store, he has to go when people are not there because he loses his "trigger real easy when things are crowded." Id. In response to a question about his difficulty with people and with whom who he is comfortable, he testified that he likes to see people on a limited basis, for example, if he goes to pick something up, he will go during the week when there are not many people there. Id. He also testified that since he returned from overseas ten years ago, he has put his wife through "real hell," was hard on her, and caused her a lot of problems. Id. He explained that he had delayed starting that PTSD program because when his wife was diagnosed with cancer, he had to put everything on hold. Id. at 36.
Mr. Walter further testified that he was diagnosed with COPD, and he uses two inhalers, which he uses two to four times a day, he uses a nebulizer three times a day, and he takes an oral medication once a day. Id. at 35. According to Mr. Walter, he would not make it without those. Id. at 35-36. He also testified that he has difficulty with sleep apnea, that he has "tried just about everything," and the VA is making him a special mouthpiece to see if that helps. Id. at 38
Mr. Walter had surgery on his right shoulder, and if he lifts his right arm over his head, it will be sore for a couple of days. Id. He further testified that he can climb stairs, but not very many and he climbs very slowly. Id. at 38-39.
Mr. Walter also testified that he still gets headaches, he still has bone and joint problems, and he still experiences stress, but through his classes, he is learning to deal with the stress a little better. Id. at 39-40. He testified that he last drank alcohol a couple of weeks ago when he had three beers. Id. at 40.
Mr. Walter, who gets his medical treatment at the VA, goes to his general practitioner twice a year and to specialty clinics when his "life permits it." Id. at 36. Mr. Walter drives, but he testified that he has trouble driving distances or for longer than about 20 minutes because it makes him "very bad" and "very jumpy," he gets headaches, and he just doesn't "feel good for a lot." Id. at 32.
2. VE Bustin's Testimony.
After VE Bustin described Mr. Walter's past work, that ALJ asked her whether a hypothetical individual with the following characteristics and limitations could perform any of the work the Mr. Walter had performed in the past:
• 49 years old;
• high school education;
• capable of performing light work with the following limitations:
• only occasional stooping, kneeling, crouching, crawling, and climbing;
• no hazards such as unprotected heights and machinery that moves about the job-site floor;Admin. Tr. at 41-42. VE Bustin testified that such a hypothetical individual could perform Mr. Walter's past work as "cleaner industrial," which as Mr. Walter actually performed that job, was light, unskilled work that is simple and routine and that involves no interaction with the public. Id. at 42. She noted, however, that the there are no environmental restrictions listed in the Dictionary of Occupational Titles ("DOT") for that job, but Mr. Walter reported that there was dust in the post office. Id. The ALJ also asked VE Bustin whether the limitation on overhead reaching would prevent that person from working as an industrial cleaner. Id. at 43. VE Bustin responded that an industrial cleaner usually uses mops, etc. to perform work in front of or below the person, and that the DOT does not list that job as involving overhead reaching. Id.
• no exposure to dust, odors, fumes, gases, or poor ventilation;
• "limited to moderate noise level such as business office, department store, grocery store, light traffic";
• no overhead reaching with his dominant right arm;
• limited to occupations involving only occasional changes to the routine work setting;
• routine, repetitive work, in a stable environment;
• no interaction with members of the public;
• cannot be expected to work as a member of a team;
• no more than occasional interaction with co-workers and supervisors; and
• no temperature extremes;
VE Bustin also testified that such a hypothetical individual could also do the job of "bakery worker conveyor line," which she described as a routine, simple job that involves no dust, fumes, gases, or people, and that involves only occasional use of one hand to press a button or remove a deformed product. Id. She also testified that such a hypothetical individual could do the job of a potato chip sorter, which involves no dust, fumes, odors, or gases, and no overhead reaching, and at which there is a medium noise level. Id. at 43-44. She further testified that such a hypothetical individual could do the job of "machine tender laminating," which also involves a medium noise level, no environmental issues, occasional use of the hands, and no overhead reaching. Id. at 44.
Mr. Walter's counsel asked whether such a hypothetical individual could engage in any those occupations or other occupations if the he missed one to two days of work a week. Id. Noting that the national average for absenteeism is about a day and a half a month and employers generally tolerate no more than that, VE Bustin testified there would be no work for such an individual. Id. Mr. Walter's counsel also asked what the effect would be if such a hypothetical individual was off task 20% of the day due to mental health issues, and VE Bustin responded that that would also eliminate all employment given that the most an employer would tolerate an employee being off task is 15%. Id. at 44-45.
V. The ALJ's Decision Denying Mr. Walter's Claim.
In his 2015 decision, the ALJ applied the sequential-evaluation process, and determined that Mr. Walter was not disabled within the meaning of the Social Security Act from May 2, 2014 through September 30, 2014, his date last insured.
At step one of the sequential-evaluation process, that ALJ found that Mr. Walter had not engaged in substantial gainful activity from his alleged onset date of May 2, 2014, to his date last insured of September 30, 2014. Admin. Tr. at 13.
At step two of the sequential-evaluation process, that ALJ found that Mr. Walter had the following severe impairments: COPD, degenerative disc disease of the cervical spine, degenerative joint disease of the right shoulder, migraine headaches, tinnitus, chronic sinusitis, hypertension, obesity, anxiety, PTSD, and depression. Id. The ALJ also determined that Mr. Walter's GERD, eczema, and hypertriglyceridemia were non-severe impairments. Id.
At step three of the sequential-evaluation process, that ALJ found that Mr. Walter did not have any impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 14.
Between steps three and four of the sequential-evaluation process, the ALJ assessed Mr. Walter's RFC. He found that Mr. Walter had the RFC to perform less than the full range of light work, see 20 C.F.R. § 404.1567(b) (defining light work), such that:
He was limited to only occasional stooping, kneeling, crouching, crawling, and climbing stairs. He must have no exposure to hazards such as unprotected heights and machinery that moves about on the job site floor. He must have had no exposure to dust, odors, fumes, gases, and poor ventilation. He must have avoided temperature extremes. He was limited to moderate noise levels such as business office, department store, grocery store, and light traffic. He must have done no overhead reaching with the dominant right upper extremity. He was limited to occupations involving only changes to the routine work setting, routine repetitive work in a stable environment. He must have had no interactions with members of the public and must [not] have been expected to work as a member of a team. To the extent that interaction is required at all with co-workers and supervisors it must have been limited to no more than occasional.Id. at 16-17.
At step four of the sequential-evaluation process, that ALJ found that Mr. Walter was capable of performing his past relevant work as an industrial cleaner. Id. at 21. The ALJ's finding was informed by the testimony of VE Bustin. Id.
Although the ALJ concluded that Mr. Walter was capable of performing his past relevant work as an industrial cleaner, which conclusion leads to a finding the Mr. Walter was not disabled, the ALJ nevertheless made an alternative finding at step five of the sequential-evaluation process. Id. at 21-22. Considering Mr. Walter's age, education, work experience, and RFC, the ALJ found that there were other jobs—such as bakery worker, potato chip sorter, and laminating machine tender—that exist in significant numbers in the national economy that Mr. Walter could also perform. Id. at 22.
VI. Discussion.
A. Whether the ALJ's assessment that Mr. Walter did not meet the criteria of Listing 12.06 is supported by substantial evidence.
Mr. Walter argues that the ALJ erred in finding that he did not meet or equal one of the listed impairments. Although Mr. Walter's argument in this regard is unfocused, the only listing that he specifically addresses is Listing 12.06. Thus, we limit our consideration to whether the ALJ's finding that Mr. Walter did not meet the criteria of Listing 12.06 is supported by substantial evidence.
The ALJ considered Mr. Walter's impairments under Listing 12.06 of 20 C.F.R. Part 404, Subpart P, Appendix, which addresses the evaluation of anxiety-related disorders. "In these disorders anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorder." 20 C.F.R. Part 404, Subpart P, Appendix 1 §12.06. The required level of severity for listing level anxiety-related disorder is met when the requirements in both paragraph A and B of the criteria listed below are satisfied or when the requirements in both paragraph A and C of the criteria listed below are satisfied:
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning;
or
2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling
desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Part 404, Subpart P, Appendix 1 §12.06.
OR
C. Resulting in complete inability to function independently outside the area of one's home.
This listing was amended in January of 2017, but we apply the listing in effect on the date of the ALJ's decision.
The ALJ concluded that Mr. Walter does not satisfy the Paragraph B criteria. He found that Mr. Walter's mental impairments resulted in a mild restriction of activities of daily living, marked difficulties in social functioning, and moderate difficulties maintaining concentration, persistence or pace. He also found that Mr. Walter had experienced no episodes of decompensation of extended duration. Mr. Walter argues that the ALJ's assessment that he does not meet the paragraph B criteria of listing 12.06 is not supported by substantial evidence. The issue is whether the ALJ's findings with respect to Mr. Walter's ability to engage in activities of daily living and his ability to maintain concentration, persistence or pace are supported by substantial evidence.
A state agency psychological consultant concluded that Mr. Walter's mental impairments were non-severe impairments. Admin. Tr. at 78. But the ALJ gave limited weight to that opinion because it was not consistent with the "entirety of the evidence of record." Id. at 21. The psychological consultant also opined that Mr. Walter had mild restriction of activities of daily living, no difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Id. at 78.
Mr. Walter does not contend that he meets the Paragraph C criteria. And although the ALJ did not discuss the Paragraph A criteria, because we conclude that the ALJ's decision regarding the Paragraph B criteria is supported by substantial evidence, there is no need to discuss the Paragraph A criteria.
Although Mr. Walter addresses whether he met the requirement of 12.06(B)(2) regarding social functioning, the ALJ found that Mr. Walter, in fact, had marked difficulties in social functioning. Thus, the ALJ found that Mr. Walter met the requirement of 12.06(B)(2).
1. Activities of Daily Living.
"Activities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office." 20 C.F.R. pt. 404, subpt. P., app.1 § 12.00(C)(1). In the context of a claimant's "overall situation, [the ALJ] asses[es] the quality of these activities by their independence, appropriateness, effectiveness, and sustainability." Id.
The Listing requires a marked restriction on activities of daily living. A marked restriction or difficulty is a restriction or difficulty that is "more than moderate but less than extreme" and that "interfere[s] seriously" with the claimant's "ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. pt. 404, subpt. P., app.1 § 12.00(C).
Here, the ALJ acknowledged that Mr. Walter reported experiencing insomnia and that his wife sometimes reminds him to take his medication. The ALJ also observed, however, that Mr. Walter cooked once a week with his wife's help, that he did not need any special reminders to take care of his personal needs and grooming, that he went outside one to three times a day, that he shopped three to four times a week for ten to fifteen minutes, and that he was able to pay bills, count change, and use a checkbook/money orders. Admin. Tr. at 15.
Given the activities of daily living that Mr. Walter is capable of performing, the ALJ's conclusion that Mr. Walter suffered from a mild, rather than a marked, restriction of his activities of daily living is supported by substantial evidence.
While Mr. Walter argues that the ALJ failed to properly take his records into account in making this decision, he has not pointed to any specific record that the ALJ failed to take into account, and, in fact, that ALJ did consider Mr. Walter's reported functional limitations. That Mr. Walter disagrees with the ALJ's conclusion that those limits do not amount to marked restrictions does not mean that the ALJ's decision is not support by substantial evidence.
Mr. Walter also faults the ALJ for not properly considering the VA's rating decision in making this determination. But "[t]he functional limitations in paragraph B . . . must be the result of the mental disorder described in the diagnostic description, that is manifested by the medical findings in paragraph A." 20 C.F.R. pt. 404, subpt. P., app.1 § 12.00(A). The VA's decision did not involve any mental disorders and did not discuss any functional limitations from any mental disorders. Thus, the ALJ did not err in failing to consider the VA's decision at this step.
As we discuss later, the ALJ did not consider the VA's decision at a later step in the process, and after explaining his reasons for doing so, assigned the VA decision limited weight.
Similarly, Mr. Walter's contention that his trouble bending, lifting, standing, squatting, reaching, stair climbing, and walking, etc. is beside the point with regard to whether the Listing is met because the functional limitations of paragraph B must be the result of his mental disorder, not his physical impairments.
2. Concentration, Persistence, or Pace.
"Concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. pt. 404, subpt. P., app.1 § 12.00(C)(3). To meet the requirement of 12.06(B)(3), Mr. Walter must have had marked difficulties in maintaining concentration, persistence, or pace.
Here, the ALJ determined that Mr. Walter had moderate difficulties with regard to concentration, persistence, or pace. The ALJ acknowledged that Mr. Walter reported hearing noises while trying to sleep, not handling stress well as he gets "angry and disgusted with the situation," and not handling change in his routine well at all. But that ALJ also observed that Mr. Walter reported that he can pay attention for a couple of minutes, follow spoken instructions "fair," and follow written instructions "good," and that he was not assessed with any abnormal clinical examination findings pertaining to concentration. Admin. Tr. at 15-16.
Citing the function report that he completed and the third-party function report that his wife completed, Mr. Walter asserts that he has trouble concentrating, remembering things, following detailed instructions, handling stress and change, and that he becomes angry and suffers short-term memory loss. It is clear, however, that the ALJ explicitly considered Mr. Walter's function report. And while the ALJ did not specifically cite Mrs. Walter's third-party function report with regard to Mr. Walter's concentration, persistence, or pace, he did cite it earlier in his discussion of Mr. Walter's social functioning. Further, at a later step of the sequential evaluation, the ALJ explicitly acknowledged Mrs. Walter's third-party function report including her description of Mr. Walter's concentration and memory. Id. at 21. The ALJ assigned limited weight, however, to Mrs. Walter's opinion as to the severity of Mr. Walter's limitations given the routine and conservative treatment that Mr. Walter received for his physical impairments and the lack of treatment for his mental impairments from the alleged onset date to his date last insured. Id.
In sum, the ALJ's finding that Mr. Walter suffered from moderate, rather than marked, difficulties with concentration, persistence, or pace is supported by substantial evidence.
Mr. Walter also asserts in a conclusory manner that the ALJ failed to consider his pain in combination with his injuries, to find his testimony credible, to assign weight to his wife's third-party function report, to fully review records, and to carefully weigh all the evidence. Except as already discussed, he makes no attempt however to explain what specific evidence the ALJ failed to consider or failed to credit or how such evidence involved his functions of daily living or concentration, persistence, or pace in connection with the determination of whether he meets listing 12.06. Mr. Walter has not pointed to any medical opinion that he meets the listing or that his mental impairments limited his functional capabilities to a significant degree, and the ALJ properly considered that evidence of record. The ALJ's conclusion that Mr. Walter does not meet the requirements of Paragraph B of the Listing 12.06 is supported by substantial evidence.
B. Whether the ALJ's assessment of Mr. Walter's RFC is supported by substantial evidence.
Mr. Walter contends that the ALJ improperly concluded that he had the RFC to perform less than the full range of light. As set forth above, the ALJ concluded that:
[Mr. Walter] was limited to only occasional stooping, kneeling, crouching, crawling, and climbing stairs. He must have no exposure to hazards such as unprotected heights and machinery that moves about on the job site floor. He must have had no exposure to dust, odors, fumes, gases, and poor ventilation. He must have avoided temperature extremes. He was limited to moderate noise levels such as business office, department store, grocery store, and light traffic. He must have done no overhead reaching with the dominant right upper extremity. He was limited to occupations involving only changes to the routine work setting, routine repetitive work in a stable environment. He must have had no interactions with members of the public and must [not] have been expected to work as a member of a team. To the extent that interaction isId. at 16-17.
required at all with co-workers and supervisors it must have been limited to no more than occasional.
In arriving at these limitations, the ALJ considered Mr. Walter's medical records, and he noted that those records do not "indicate that he was persistently assessed with abnormal clinical examination finding pertaining to his neck, right shoulder, or musculoskeletal system," do not "document [he] was assessed with having any strength deficits or neurological deficits in his right upper extremity or hand," do not "indicate that [he] persistently reported experiencing fatigue to health care providers," do not "indicate that [his] hearing impairment impaired his ability to communicate with others," and do not "indicate that he required emergent treatment" for his headaches/migraine headaches." Id. at 18. The ALJ also noted that Mr. Walter's medical records "indicate that [he] was assessed with normal clinical examination findings pertaining to respiration (i.e., lungs clear to auscultation) on multiple occasions" and that his migraine headaches were stable. Id.
Further, the ALJ observed that during the relevant time, Mr. Walter received only routine and conservative treatment for his physical impairments. Id. at 20-21. The ALJ also noted that Mr. Walter did not seek or receive any treatment for his mental impairments during the relevant time and that he only sought treatment for his mental impairments after his date last insured. Id. Acknowledging that Mr. Walter testified that he delayed such treatment because of his wife's health, the ALJ, nevertheless, observed that Mr. Walter still did not seek mental health therapy until March of 2015, and even then, no cognitive impairments or impairment in this thought processes or communication were observed, he was considered at low risk of harm to himself or others, and he was noted to be cooperative and friendly. Id. at 19.
Mr. Walter does not contend that the ALJ failed to develop the record in this case.
The ALJ further observed that Mr. Walter's medical records for the relevant time contain no abnormal clinical finding regarding his mental impairments and there are no abnormal clinical findings pertaining to concentration, persistence, or pace after his alleged onset date and before his date last insured. Id. The ALJ also highlighted that Mr. Walter did not appear to have any difficulty interacting with his health care providers, that he spent time with others on a daily basis, that he got along "ok" with authority figures, and that he was never fired or laid off from a job because of an inability to get along with others. Id. Citing the Function Report completed by Mr. Walter, the ALJ stated that Mr. Walter indicated that he got along well with family and friends, but the function report actually states that he has problems getting along with his family because they are "not understanding." Id. at 19 & 199.
We find this error by the ALJ harmless given the totality of the evidence. See Napoli v. Colvin, No. 3:13-CV-01815, 2014 WL 2808603, at *11 n.23 (M.D. Pa. June 20, 2014) (finding error in consideration of evidence harmless under the totality of the evidence).
Acknowledging that Mr. Walter reported experiencing side effects—dizziness, trouble swallowing, change in mental status, dry cough, and upset stomach—from his medications, the ALJ concluded that based the entirety of the medical records, Mr. Walter had not persistently reported experiencing side effects. Id. at 20. He further concluded that there are no abnormal clinical findings—such as altered mental status, altered gait, or dysphagia—showing that Mr. Walter experienced the side effects "with any persistency." Id. Thus, that ALJ concluded that Mr. Walter did not experience side effects from his medications "to such an extent that they would preclude him from performing jobs consistent" with the RFC set forth by the ALJ. Id.
That ALJ also considered Mr. Walter's contentions regarding his limitations and he concluded that Mr. Walter's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." Id. at 18. But he found Mr. Walter's statements about the "intensity, persistence and limiting effects" of his symptoms not entirely credible. Id. The ALJ noted that despite Mr. Walter's reported symptoms and limitations, Mr. Walter's medical records, "including the lack of persistently abnormal clinical examination findings pertaining to his physical and mental impairments," the conservative treatment he received for his physical impairments, the lack of mental health treatment, and his daily activities do not support the level of limitation described by Mr. Walter and, thus, undermines his credibility in that regard. Id. at 20.
The ALJ also consider Mrs. Walter's third party function report. Id. at 21. Like he found Mr. Walter's contention not entirely credible, the ALJ gave only limited weight to Mrs. Walter's third-party function report. Id. Noting again that Mr. Walter received only routine and conservative treatment for his physical impairments and that he did not receive treatment for his mental impairment during the closed period at issue here, the ALJ found Mrs. Walter's opinion regarding Mr. Walter's symptoms and limitations "unpersuasive to the extent it suggests that the claimant is more limited than indicated by the" the RFC provide by the ALJ. Id.
The ALJ also considered the opinion of the state agency medical consultant that Mr. Walter is capable of a range of light work with environmental limitations. Admin. Tr. 80-82 & 20. The ALJ gave significant weight to that opinion but, nevertheless, found Mr. Walter to have a more limited RFC based on Mr. Walter's subjective complaints. Id. at 20.
The ALJ also considered the VA's decision. Id. at 20. He gave that decision limited weight, however, given that the VA's determination was based on a different disability standard than the one under the Social Security Act, that the VA's decision does not contain specific findings regarding Mr. Walter's functional limitations that correspond to the standards under the Social Security Act, and that VA decision was made in 2010, and, thus, has limited probative value as to the time frame at issue here. Id.
Mr. Walter now argues that the ALJ failed to consider pertinent information and he cites his testimony and his wife's third-party function report. But the ALJ did consider both Mr. Walter's testimony and contentions regarding his impairments and Mrs. Walter's third-party function report. The ALJ, however, found that Mr. Walter's statement concerning the intensity, persistence, and limiting effects of his symptoms not entirely credible. Similarly, the ALJ concluded that Mrs. Walter's opinion as to the Mr. Walter's limitations was entitled to only limited weight.
It was within the purview of the ALJ to make credibility determinations. See Davern v. Comm'r of Soc. Sec., 660 F. App'x 169, 174 (3d Cir. 2016) (recognizing that although the ALJ must carefully consider the claimant's statements about his or her symptoms, the ALJ is not required to credit them). Furthermore, the ALJ need not totally accept or totally reject the claimant's statements, and may find all, some, or none, of the alleged symptoms are credible. SSR 96-7p, 1996 WL 374186 at *4. The ALJ may also find that a claimant's allegations are not credible to a certain degree. Id. An ALJ's findings based on the credibility of a claimant are generally accorded deference. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009) ("In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his . . . assessment of the credibility of witnesses . . . ."). But an ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). The Commissioner's regulations also provide a list of factors that the ALJ should consider when assessing the credibility of a claimant's allegations about his or her symptoms. 20 C.F.R. §404.1529(c)(3). These factors include: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. Id.
As of March 26, 2016, SSR 96-7p was superseded by SSR 16-3p. The new ruling eliminates the term "credibility" from the Social Security Administration's policy guidance in order to "clarify that subjective symptom evaluation is not an examination of the individual's character." SSR 16-3p, 2016 WL 1119029 at *1. A comparison of these rulings reveals that there are few substantive changes. Both rulings outline a two-step process to evaluate a claimant's subjective statements and identify the same factors to be considered in the ALJ's assessment of the intensity, persistence, and limiting effects of a claimant's symptoms. Because SSR 96-7p was in effect at the time of the ALJ's decision, we rely on that ruling. Our analysis would not, however, be different under the new ruling.
The ALJ appropriately considered that relevant factors and explained his reason for finding Mr. Walter's contentions regarding his limitations not entirely credible. Thus, the ALJ's credibility decision is supported by substantial evidence.
Mr. Walter also contends that the ALJ in this case failed to include at least two limitations in his RFC determination. He asserts that it is credibly established in the record that he will miss "at least a day or two" of work each week due to his impairments or treatment, and that he would be off task 20% of each workday. Doc. 5 at 10. VE Bustin testified that either limitation would render Mr. Walter unemployable. Admin. Tr. at 44-45. As such, we construe Mr. Walter's allegations as an argument that the ALJ's determination that these limitations were not credibly established is not supported by substantial evidence. But as discussed above, the ALJ considered the medical evidence in this case. He also considered both Mr. Walter and Mrs. Walter's contentions regarding Mr. Walter's symptoms and limitations. But he found that testimony not entirely credible and he provided a reasonable explanation for so finding. The ALJ's refusal to accept that Mr. Walter would miss a day or two a week from work or that he would be off task 20% of the time is supported by substantial evidence.
The 20% figure was brought up in a question from Mr. Walter's counsel to the VE. Id. at 44. The question itself, of course, is not evidence. --------
Mr. Walter also decries the ALJ's failure to accord weight to the VA's rating decisions. But the ALJ explained that he did not give weight to that decision because that decision was based on different standards and was from years before the alleged onset date in this case. The ALJ did not err in this regard. See Durden v. Colvin, 191 F. Supp. 3d 429 (M.D. Pa. 2016) (adopting Report and Recommendation of a magistrate judge that explains in detail the differences between the social security system and the VA system and concluding that the ALJ did not err in assigning little weight to VA rating of 70% for PTSD); Kichman v. Colvin, No. 1:15-CV-00957-YK-GBC, 2016 WL 8115733, at *10 (M.D. Pa. Dec. 28, 2016) (Report and Recommendation of magistrate judge finding that the ALJ did not err in according little weight to VA rating of 90%), adopting Report and Recommendation, No. 1:15-CV-957, 2017 WL 405923, at *1 (M.D. Pa. Jan. 27, 2017).
C. Whether the ALJ's determination that Mr. Walter can engage in his past relevant work as an industrial cleaner is supported by substantial evidence.
Past relevant work is work that the claimant has done within the last fifteen years, that was substantial gainful activity, and that lasted long enough for the claimant to learn to do the job. 20 C.F.R. §404.1560(b)(1). If the claimant has past relevant work that is within his or her RFC either as the claimant did the work, or as generally performed in the national economy, a claimant is not disabled. 20 C.F.R. §404.1520(a)(4)(iv) & §404.1560(b0)(3). "The RFC to meet the physical and mental demands of jobs a claimant has performed, in the past (either the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy) is generally a sufficient basis for a finding of 'not disabled.'" SSR 82-62, 1982 WL 31386 at *3. Further, "[t]he claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." Id. Nonexertional limitations or demands include a claimant's ability to tolerate exposure to certain work settings and environmental conditions, such as the ability to tolerate dust or fumes. 20 C.F.R. §404.1569a.
Mr. Walter does not dispute that his past relevant work includes work as an industrial cleaner. He does, however, appear to dispute the ALJ's conclusion at step four that he can engage in his past relevant work as he actually performed it. Mr. Walter testified that, while employed in a custodial position he had constant headaches and respiratory problems due to the exposure to dust and lighting. Admin. Tr. at 33-34. As discussed above, such statements are generally sufficient to determine the nonexertional demands of a claimant's past relevant work as actually performed.
VE Bustin classified Mr. Walter's past relevant custodial work as cleaner, industrial (DOT #381.687-018). Admin. Tr. at 41. She testified that, although Mr. Walter testified that his job as actually performed involved exposure to dust, the DOT provides that this occupation does not involve exposure to any environmental conditions. Id. at 42-43. Thus, VE Bustin's testimony supports a conclusion that Mr. Walter could engage in his past relevant work as workers generally perform it, but it does not directly address the issue of whether Mr. Walter could engage in his past relevant work as he actually performed it.
The Commissioner does not argue that the ALJ's conclusion that Mr. Walter can perform his past relevant work is supported by substantial evidence. Rather, the Commissioner asserts that even if the ALJ erred in this regard, such error was harmless because the ALJ made an alternative step-five determination that Mr. Walter could perform other work. We agree. Even if the ALJ's conclusion at step four is not supported by substantial evidence, that does not warrant remand because the ALJ's conclusion at step five is supported by substantial evidence.
D. Whether the ALJ's assessment that Mr. Walter can perform other jobs in the national economy is supported by substantial evidence.
At step five, the ALJ found that there were other jobs—such as bakery worker, potato chip sorter, and laminating machine tender—that exist in significant numbers in the national economy that Mr. Walter could also perform. Mr. Walter does not specifically address the ALJ's step-five determination. But given the ALJ's determination that Mr. Walter had the RFC to perform less than the full range of light work with the restrictions set forth earlier and VE Bustin's testimony that an individual with such an RFC could perform the jobs of bakery worker, potato chip sorter, and laminating machine tender, the ALJ conclusion at step five is supported by substantial evidence.
In sum, the ALJ's decision that Mr. Walter was not disabled within the meaning of the Social Security Act from May 2, 2014, to September 30, 2014, is supported by substantial evidence.
VII. Recommendations.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Mr. Walter's request for relief be DENIED and the Commissioner's final decision denying Mr. Walter's claim be AFFIRMED as follows:
1. Final judgment should be entered in favor of the Commissioner and against Mr. Walter;The parties are further placed on notice that pursuant to Local Rule 72.3:
2. The clerk of court should close this case.
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.Submitted March 13, 2017
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge