Opinion
1:20-cv-01080-CCC-GBC
08-02-2021
PAIGE WARFEL, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
GERALD B. COHN UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Paige Warfel (“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 ALJ to decide whether an applicant (1) is engaged in “substantial gainful activity;” (2) suffers from a “severe medically determinable physical or mental impairment;” (3) suffers from “an impairment(s) that meets or equals one” listed in the regulation's appendix; (4) has a residual functional capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make an adjustment to other work.” Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) (“court shall review only the question of conformity with such regulations and the validity of such regulations”); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). Substantial evidence “does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Biestek v. Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met.” Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
II. PROCEDURAL HISTORY
On November 13, 2017, Plaintiff filed an application for supplemental security income under Title XVI and for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), with a last insured date (“DLI”) of June 30, 2020, and an alleged disability onset date of June 16, 2017. (Tr. 15, 61). Plaintiff alleged disability due to: (1) depression; (2) anxiety; (3) panic disorder; (4) borderline personality disorder; (5) Grave's disease; (6) obstructive sleep apnea, and; (7) pituitary adenoma. (Tr. 62). On June 27, 2019, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 12-31). Plaintiff sought review of the decision, which the Appeals Council denied on May 28, 2020, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-6).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
On June 26, 2020, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On January 14, 2021, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 11, 12). On March 1, 2021, Plaintiff filed a brief in support of the appeal. (Doc. 14 (“Pl. Br.”)). On March 26, 2021, Defendant filed a brief in response. (Doc. 15 (“Def. Br.”)). On April 5, 2021, Plaintiff filed a reply. (Doc. 16 (Reply)).
III. ISSUES
On appeal, Plaintiff argues the ALJ erred in: (1) failing to allocate controlling weight to the treating physician, Dr. Gregory Bredow, M.D.; (2) the conclusions regarding consistency of Plaintiff's allegations with the evidence of record, and; (3) the RFC finding regarding non-exertional impairments. Pl. Br. at 7-15.
IV. BACKGROUND
Plaintiff is classified by the regulations as a younger individual through the date of the July 2019 ALJ decision. (Tr. 25, 61); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed the tenth grade (Tr. 193) and has past relevant work as a receptionist, identified in the dictionary of occupational titles (“DOT”) by 237.367-038, which is sedentary, with an SVP of 4 and a dispatcher, identified in the DOT by 379.362-010, which is sedentary, with an SVP of 4. (Tr. 55).
The SVP levels are referenced in the Commissioner's regulations and are routinely accounted for during disability proceedings by determining whether the claimant can engage in skilled, semiskilled, or unskilled work. 20 C.F.R. § 404.1568; see also SSR 00-4p, 2000 WL 1898704 at *3.
SVP is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed to average performance in a specific job-worker situation. United States Department of Labor, DOT Vol. 2, 1009 (4th ed. Rev. 1991) available on Westlaw 1991 WL 688702. “Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704 at *3. Diaz v. Colvin, No. 4:16-CV-00358, 2017 WL 1078229, at *15 (M.D. Pa. Mar. 22, 2017).3 Plaintiff alleges error only regarding non-exertional impairments. Therefore, the Court will only address evidence relevant to Plaintiff's allegations of error.
1. Treating Medical Opinion, March 12, 2019: Gregory Bredow, M.D.
In a March 2019 form, Dr. Bredow noted Plaintiff's diagnosis included generalized anxiety disorder, major depression, and rule out diagnosis of post-traumatic stress disorder and obsessive-compulsive disorder. (Tr. 930). Plaintiff's treatment included medication management and psychotherapy and Dr. Bredow opined Plaintiff's response to treatment has been relatively unchanged without major improvement. (T. 930). Dr. Bredow indicated Plaintiff experiences “electric shock sensations” as a side-effect from her medication. (Tr. 930). According to Dr. Bredow, Plaintiff demonstrated frequent high anxiety, hypervigilance, is easily startled, and often seeing reassurance and approval. (Tr. 931). In a section titled “mental abilities and aptitudes needed to do even unskilled work, ” Dr. Bredow opined Plaintiff had no limitation in the ability to: (1) remember work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) sustain an ordinary routine without special supervision; (5) Make simple work-related decisions; (6) Ask simple questions or request assistance, and; (7) Be aware of normal hazards and take appropriate precautions. (Tr. 935). In this same section, Dr. Bredow opined Plaintiff had a moderate limitation in the ability to: (1) maintain attention for two hour segment; (2) maintain regular attendance and be punctual within customary, usually strict tolerances; (3) work in coordination with or proximity to others without being unduly distracted; (4) Perform at a consistent pace without an unreasonable number and length of rest periods; (5) Accept instructions and respond appropriately to criticism from supervisors; (6) Get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, and; (7) Respond appropriately to changes in a routine work setting. (Tr. 935). Lastly, Dr. Bredow opined Plaintiff had a marked limitation in the ability to deal with normal work stress and to complete a normal workday and workweek without interruptions from psychologically based symptoms for unskilled work. (Tr. 935). Dr. Bredow opined Plaintiff had; (1) marked difficulties with adapting or managing oneself; (2) moderate difficulties with concentrating, persisting, or maintaining pace; (3) moderate difficulties interacting with others, and; (4) mild to no difficulty with understanding, remembering, or applying information. (Tr. 936). Dr. Bredow opined Plaintiff would likely miss four or more days per month of work as a result of her medical impairments or need for medical treatment. (Tr. 936). In support of the opined limitations Dr. Bredow explained Plaintiff “has tried several anti-depressants/anxiolytics in the past with limited or poor response.” (Tr. 937).
2. State Agency Non-Examining Opinion, Dated March 15, 2018: Thomas Fink, Ph.D.
In March 2018, Dr. Fink reviewed the record, and opined Plaintiff possessed: (1) a mild limitation in the ability to understand, remember, or apply information; (2) a moderate limitation in the ability to interact with others; (3) a moderate limitation in the ability to concentrate, persist, or maintain pace, and; (4) a mild limitation in the ability to adapt or manage oneself. (Tr. 65). Dr. fink opined Plaintiff was not significantly limited in the ability to: (1) carry out very short and simple instructions; (2) perform activities within a schedule; (3) maintain regular attendance, and be punctual within customary tolerances; (4) sustain an ordinary routine without special supervision; (5) work in coordination with or in proximity to others without being distracted by them; (6) make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; (7) ask simple questions or request assistance; (8) accept instructions and respond appropriately to criticism from supervisors, (9) get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and (10) maintain social appropriate behavior and adhere to basic standards of neatness and cleanliness. (Tr. 69-70). Dr. Fink opined Plaintiff was moderately limited in the ability to: (1) carry out detailed instructions; (2) maintain attention and concentration for extended periods, and; (3) interact appropriately with the general public. (Tr. 69). Dr. Fink opined Plaintiff did not have any adaptation limitations. (Tr. 70). Dr. Fink elaborated that Plaintiff could understand and follow simple instructions. (Tr. 69). In support of the opinion, Dr. Fink noted Plaintiff has a history of social anxiety and avoidance, “but she is not agoraphobic per [psychiatric assessment dated November 20, 2017]. She has a boyfriend, recently completed a [vocational technical] LPN course and is . . . able to relate and communicate well and make scheduled appointments.” (Tr. 70). Dr. Fink continued:
[Plaintiff] has earned a GED and has a history of psychiatric hospitalizations. [Plaintiff] is currently involved in outpatient mental health treatment for [generalized anxiety disorder] and [major depressive disorder]. She also has been diagnosed with Panic disorder without agoraphobia and Borderline [personality disorder]. Nevertheless, she remains alert, oriented, nonpsychotic and grossly intact cognitively. She stopped driving recently due to Grave's disease, and not due to her mental condition.
Current ADL functioning is mentally intact. [Plaintiff] can shop, manage money, handle change, and manage childcare, self-care and household care functions within her physical condition.
[Plaintiff] can understand and follow simple instructions, remember locations and work-like procedures, relate and communicate with others, meet schedule demands, persist at simple tasks, and make simple decisions. Memory is grossly intact. [Plaintiff] would be able to maintain regular attendance and be punctual. [Plaintiff] is able to carry out simple instructions. In spite of a history of difficulty interacting
with others, [Plaintiff] retains the ability to ask simple questions and accept instructions.
[Plaintiff] can perform simple tasks within [Plaintiff's] physical limitations.
There are no [medical source opinions/treating source opinions] related to [Plaintiff's] mental condition.(Tr. 70).
3. State Agency Non-Examining Opinion, Dated April 23, 2018: Thomas Fink, Ph.D.
In April 2018, Dr. Candelaria reviewed the record, and opined Plaintiff was limited to: (1) occasional lifting up to twenty pounds; (2) frequent carrying up to ten pounds; (3) sitting six hours total in an eight-hour workday; (4) standing six hours total in an eight-hour workday, and; (5) push and pull without limitation. (Tr. 67). Dr. Candelaria opined Plaintiff did not have any postural, manipulative, visual, communicative, or environmental limitations. (Tr. 68). In support of the opined limitations, Dr. Candelaria noted: (1) diagnoses of Grave's disease, sleep apnea, pituitary adenoma since; (2) an emergency department record dated June 10, 2017, noting dizziness, headaches, and weakness, a history of pituitary tumor and polycystic ovarian syndrome, and examination revealing normal cardiac, pulmonary, and neurological findings; (3) a brain MRI dated August 1, 2017, indicating stable microadenoma; (4) an emergency department record dated June 20, 2017, indicating treatment for bradycardia, shortness of breath, weakness, no syncope, and a headache resolved with Tylenol; (5) a record indicating Plaintiff's Grave's disease had been treated effectively with methimazole, but she stopped taking it two days prior; (6) an examination indicating a blood pressure of 111/63, a high respiratory rate, BMI of 49.1, clear lungs, normal cardiological examination, and no neurological deficits; (7) normal examination findings from a primary care visit dated September 21, 2017; (8) a primary care visit dated September 27, 2017, indicating obstructive sleep apnea was treated with a continuous positive airway pressure (“CPAP”), Plaintiff was compliant with therapy, and lung sounds were diminished but clear; (9) a pulmonary function test (“PFT”) dated December 8, 2017, demonstrating normal lung volumes, no airway obstruction, lung diffusing capacity was mildly reduced; (10) a record dated December 26, 2017, indicated markedly elevated antibodies had been decreasing in response to medication, Plaintiff was doing well, examination was within normal limits, activities of daily living (“ADLs”) were “limited mostly by psych[ological] issues, ” and; (11) Plaintiff alleges limited lifting/walking based on muscle weakness and shortness of breath, does not use assistive devices, and taking appropriate medication. (Tr. 68).
VI. ANALYSIS
1. Consistency and Supportability of Medical Opinions
Plaintiff argues substantial evidence does not support the ALJ's allocation of weight to the medical opinions and that the ALJ erred in not allocating controlling weight to the July 2018 treating physician opinion of Dr. Bredow. Pl. Br. at 7-9.
For claims filed on or after March 27, 2017, an ALJ evaluates medical opinion evidence pursuant to the new regulatory sections 404.1520c and 416.920c. See 20 C.F.R. §§ 404.1520c, 416.920c. The regulatory amendments' purpose is to move away from assigning a specific weight to medical opinions, to focus on the persuasiveness of the medical opinions and prior administrative medical findings, and “to make it clear that it is never appropriate to . . . ‘credit-as-true' any medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5858 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c, 416.920c. Supportability and consistency are the “most important” of the subsection (c) factors for assessing the probative value of medical opinions. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The more relevant the medical opinions' evidence and supporting explanations and the more consistent the medical opinions are with the evidence from other sources in the claim, the more persuasive the medical opinions will be. See 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). In other words, “[c]onsistency concerns the degree to which the opinion reflects the same limitations described in evidence from other sources, whereas supportability concerns the relevancy of objective medical evidence and degree of explanation given by the medical source to support the limitations assessed in the opinion.” Serowski v. Commissioner of Social Security, No. 1:19-CV-2761, 2020 WL 6383187, at *12-13 (N.D. Ohio Oct. 30, 2020). The remaining factors of lesser importance are: (1) length of the treatment relationship; (2) frequency of examinations; (3) purpose of the treatment relationship; (4) extent of the treatment relationship, i.e., the kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories; (5) examining relationship, i.e., whether medical source personally examined claimant or only reviewed evidence; (6) specialization, and (7) “other factors.” 20 C.F.R. §§ 404.1520c(c)(3)-(5), 416.920c(c)(3)-(5). The regulation explains “other factors”:
“Prior administrative medical finding” is the regulatory term for what was formerly referred to as medical opinions from state agency physicians and psychologists in prior levels of review. 20 C.F.R. §§ 404.1513(a)(5), 416.913 (a)(5). According to paragraph (a)(5):
A prior administrative medical finding is a finding, other than the ultimate determination about whether [a claimant is] disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review . . . in [a claimant's] current claim based on their review of the evidence in [claimant's] case record, such as:
(i) The existence and severity of . . . impairment(s);
(ii) The existence and severity of . . . symptoms;
(iii) Statements about whether . . . impairment(s) meets or medically equals any listing in the Listing of Impairments . . .;
(iv) . . . residual functional capacity;
(v) Whether . . . impairment(s) meets the duration requirement; and
(vi) How failure to follow prescribed treatment . . . and drug addiction and alcoholism . . . relate to . . . claim.20 C.F.R. §§ 404.1513(a)(5), 416.913 (a)(5) (internal citations omitted).
includes, but is not limited to, evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements. When we consider a medical source's familiarity with the other evidence in a claim, we will also consider whether new evidence we receive after the medical source made his or her medical opinion or prior administrative medical finding makes the medical opinion or prior administrative medical finding more or less persuasive.20 C.F.R. §§ 404.1520c(c)(5), 416.920c(c)(5). The ALJ must articulate the consideration of the medical opinions and explain the application of the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). In doing so, the ALJ is not required to discuss other factors. 20 C.F.R. § 404.1520c(b)(2). If the ALJ finds that two or more medical opinions “are both equally well-supported and consistent with the record but are not exactly the same, ” the ALJ must articulate what factors were most persuasive in differentiating the opinions. 20 C.F.R. § 404.1520c(b)(3).
In evaluating the persuasiveness of Dr. Bredow's March 2019 opinion and Dr. Fink's March 2018 opinion, the ALJ explained:
[Dr. Fink's March 2018] opinion is somewhat persuasive, as the claimant's need for psychiatric admission and mood/affect abnormalities shown on examination support that she would have moderate limitation in the ability to carry out detailed instructions, maintain attention and concentration for extended periods. The opinion that she would have moderate limitation in the ability to interact appropriately with the general public is also consistent with the claimant's history of anxiety, limited socialization and difficulty going out alone. However, in consideration of the significant anxiety that is documented in the record, I find that she is capable only of simple and routine tasks. I further find that she can make simple work related decisions and can tolerate occasional changes in the work setting given the improvement noted with conservative management of her symptoms and the largely normal findings on mental status examination related to insight, judgment, memory, cognition and attention [citing Tr. 615, 623, 629, 745, 751, 760, 763, 771, 786, 805, 828, 1038, 1054, 1066].
[Dr. Bredow's] opinion that the claimant would be absent from work 4 or more days per month due to impairment or treatment is not consistent with Dr. Bredow's own opinion that she would have only moderate limitation in the ability to maintain regular attendance. I find that the latter is more supported by the evidence, as the evidence shows improvement in her symptoms with outpatient mental health treatment and medication, and only 2 exacerbations are documented during the period at issue requiring admission [citing Tr. 1066]. In addition, the opinion that the claimant would have marked limitation in the ability to deal with normal work stress and complete a normal workday and workweek without interruptions from psychologically based symptoms is not supported by the largely normal findings on mental status examination related to insight, judgment, memory, cognition and attention [citing Tr. 615, 623, 629, 745, 751, 760, 763, 771, 786, 805, 828, 1038, 1054). Nonetheless, these same findings support that the claimant would have moderate limitation in the areas noted by Dr. Bredow. As such, this opinion is not entirely persuasive.(Tr. 23-24).
“[Administrative law judges] will consider . . . medical evidence from . . . Federal or State agency medical or psychological consultants . . . [and] . . . must consider [agency medical or psychological consultant] evidence according to [§§ 404.1520b, 404.1527, 416.920b, and 416.927] because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation.” 20 C.F.R. §§ 404.1513a(b)-(1), 416.913a(b)-(1) (effective March 27, 2017).
Plaintiff argues “[c]ontrary to the ALJ's summarized finding, the record documents supportive signs and symptoms: anxiety, panic attacks, obsessive thinking, depersonalization, intrusive thoughts, suicidal ideation, variable sleep patter, and poor concentration and focus. . . . constricted affect, reactive affect, blunted affect, and poor judgment.” Pl. Br. at 8 (citing to Tr. 615, 620, 623, 626, 629, 745, 751, 757, 760, 762, 764, 768, 778, 782, 786, 825, 1035, 1038). The records cited by Plaintiff show: (1) a record dated July 24, 2017, indicated a recent inpatient hospitalization and Plaintiff reported experiencing a significant increase in generalized anxiety, obsessive thinking, and panic attacks. Plaintiff presented with appropriate affect, normal speech, goal directed thought process, no suicidal ideation, alert and oriented in all spheres, intact memory, fair insight and appropriate judgement (Tr. 744-45, 51); (2) in September 14, 2017, Plaintiff reported she feels her depression is stable right now, ” agreed to give the dosage changes in Paxil more time to evaluate effectiveness on anxiety, reported she struggles with emotion regulation and tolerating change and stress, was observed with an anxious mood, focused attention span and appropriate insight and judgement (Tr. 615); (3) in November 20, 2017, Plaintiff reported a resurgence in anxiety, “[p]anic attacks persist but only used [medication] on one occasion, ” Plaintiff experienced recent family-related “psychosocial stressors, ” “[a]ppears to have difficult[y] with affect regulation and transition with stress. But her interpersonal relationships do not seem particularly damaging, ” observed with a blunted affect, coherent and goal-oriented thought process, and appropriate insight and judgment (Tr. 620, 23); (4) January 22, 2018, Plaintiff reported experiencing slightly more anxiety since changing medication but “doing ok, ” still reported experiencing dissociative symptoms, not thinking clearly, “[d]oesn't take Propranolol, and very rarely takes Lorazepam - hasn't needed refills for a while. ‘I don't really have panic attacks anymore, ” observed with blunted and constricted affect, fairly stable mood, engaged and cooperative behavior, coherent thought process, alert, and with appropriate insight and judgement (Tr. 626, 629); (5) a psychiatric follow-up dated March 26, 2018, indicating she was last seen in January and reported not doing well lately and developed severe panic attacks a few weeks prior. Her endocrinologist suggested restating Methimazole and no major panic episodes occurred since she restarted. Plaintiff reported experiencing detached emotions, derealization, and depersonalization, remains fearful of taking Lorazepam when she is nervous, “but still able to do cognitive activities.” Plaintiff presented with blunted and constricted affect, normal speech, goal directed thought process, no suicidal ideation, appropriate insight, and appropriate judgement . (Tr. 757, 760); (6) a record dated May 14, 2018, wherein Plaintiff reported experiencing derealization that results in her being too afraid to drive, not driving since June 2017, losing self-control when she becomes upset, experiencing eating disorder symptoms, and Dr. Bredow recommended Plaintiff start Dialectical Behavioral Therapy. Plaintiff presented with congruent affect, normal speech, logical thought process, intact memory (recent, immediate, and remote), “difficulty concentrating sometimes, ” fair insight, and poor judgement (Tr. 762-64); (7) a record dated May 17, 2018, wherein Plaintiff reported feeling “not too bad, ” able to stay home by herself without feeling very anxious, no recent major panic attacks in several months, and depersonalization/derealization symptoms also improving. Dr. Bredow noted not seeing “major labile affect, splitting, self-harm, or fragile sense of self-image” to contrast Plaintiff's report of a previous diagnosis of borderline personality. To alleviate symptoms, Plaintiff was in the process of cross titrating medications and Plaintiff reported the changes were going well and she started seeing someone for therapy. (Tr. 768); (8) a progress note dated June 19, 2018, Plaintiff reported experiencing increased anxiety regarding custody of her daughter (Tr. 778); (9) a progress note dated July 10, 2018, wherein Plaintiff was accompanied by her mother and reported experiencing a severe panic attack that morning, Dr. Bredow noted transitioning Plaintiff to a new medication and her first mood stabilizer. According to her mother, Plaintiff often “waits ‘too long' before [taking Ativan] and then it doesn't work.” Dr. Bredow observed Plaintiff demonstrated coherent, logical, and goal-oriented thought process, appropriate insight, and appropriate judgment. (Tr. 782, 786); (10) in a progress note dated December 11, 2018, Plaintiff reported feeling “ok” but continued to struggle with chronic anxiety with periods of feeling frozen and experiencing “shock waves [through] her body.” Plaintiff reported feeling “‘on edge, and tense, almost daily, ” and reports taking “Ativan very sparingly, fearful of using it too much.” (Tr. 825); (11) in a progress reported dated March 11, 2019, Plaintiff reported “a lot of anxiety and feeling hypervigilant [with] panic, ” still experiences electric shock sensation but feels current medication is the best antidepressant she's ever been on. Plaintiff was “still reluctant to consider mood stabilizer due to recent thyroid [September 2018] and GI surgeries [March 2019], ” and Plaintiff reported she still doesn't drive. Dr. Bredow noted Plaintiff was engaged, cooperative, with goal-oriented and logical thought process, appropriate insight and judgement, normal speech, and fairly euthymic affect. (Tr. 1935-38).
Dr. Fink reviewed the mental health records through February 16, 2018. (Tr. 64 (listing records received by February 16, 2018), Tr. 65, 69-70 (Dr. Fink opinion), Tr. 607-631 (records from September 14, 2017, to January 22, 2018)). Plaintiff fails to demonstrate significant deterioration for the treatment period following Dr. Fink's March 2018 opinion leading up to Dr. Bredow's March 2019 opinion. The totality of the symptoms in the records leading up to Dr. Fink's March 2018 opinion do not significantly differ from the totality of the symptoms in the records after leading up to Dr. Bredow's March 2019 opinion. Notwithstanding the above-referenced records and symptoms highlighted by Plaintiff, Dr. Fink opined Plaintiff still retained the ability to work. (Tr. 65, 69-70). The ALJ cited to substantial evidence in support of finding greater limitations than Dr. Fink's opinion that Plaintiff could carry out detailed instructions and had no limitations in adaptation. The ALJ also cited to substantial evidence to explain finding less limitations than those opined by Dr. Bredow who determined Plaintiff had a marked limitation in the ability to deal with normal work stress and complete a normal workday and workweek without interruptions from psychologically based symptoms, and would likely miss four or more days per month of work as a result of her medical impairments or need for medical treatment. (Tr. 23-24 (ALJ explanation of persuasive value of medical opinions); see 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (evaluating the consistency of a medical opinion or prior administrative medical finding with other medical sources and nonmedical sources in the claim); Durden v. Colvin, 191 F.Supp.3d 429, 455-56 (M.D. Pa. 2016) (listing cases in support of an ALJ crafting an RFC that falls between competing opinions). The Court finds no reversible error given the ALJ's discussion of the record and discussion of the persuasiveness of the opinions from Drs. Bredow and Fink.
The question is not whether Plaintiff demonstrated some evidence that could support a finding of disability. See Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015). The question is whether the ALJ reasonably concluded that the record in totality failed to support Plaintiff's claims. Id. An ALJ is afforded substantial discretion in addressing contradictions and reviewing the totality of the record for consistency. See Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 n. 9 (3d Cir. 2014) (“it is within the ALJ's discretion to weigh the evidence . . . “); Dula v. Barnhart, 129 Fed.Appx. 715, 718 (3d Cir. 2005); Miller v. Comm'r of Soc. Sec., 172 F.3d 303, 305-06 (3d Cir. 1999). Even though Plaintiff cites evidence favorable to a disability finding, the ALJ decision is still supported by substantial evidence. See Louis v. Comm'r Soc. Sec., 808 Fed.Appx. 114, 118-19 (3d Cir. 2020); Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015); Yost v. Berryhill, No. 3:16-CV-1444, 2017 WL 4408451, at *8 (M.D. Pa. Sept. 15, 2017), report and recommendation adopted, No. 3:16-CV-1444, 2017 WL 4347564 (M.D. Pa. Sept. 29, 2017) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966)). In this instance, the ALJ did not focus solely on activities of daily living or on medical excerpts reflecting instances of Plaintiff's benign symptoms and improvement while neglecting exacerbations and instances of more severe symptoms. See (Tr. 18-24); Cox v. Berryhill, No. CV 16-5434, 2018 WL 7585561, at *3-4 (E.D. Pa. Dec. 18, 2018). The ALJ thoroughly reviewed the record noting exacerbations in symptoms as well as records indicating a history of good social interaction, and improvement and stability with treatment, (Tr. 18-24). Based on the foregoing, the Court concludes substantial evidence supports the ALJ's consistency analysis of the medical opinions.
2. RFC Regarding Plaintiff's Ability to Handle Stress
Plaintiff argues that despite the evidence, “the ALJ failed to analyze how [Plaintiff's] inability to tolerate work stress would impact her ability to work on ‘a regular and continuing basis,' and the ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity.” Pl. Br. at 10 (citing SSR 85-15). Plaintiff quotes Social Security Ruling 85-15 stating:
Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's condition may make performance of an unskilled job as difficult as an objectively more demanding job, for example, a busboy need only clear dishes from tables. But an individual with a severe mental disorder may find unmanageable the demand of making sure that he removes all the dishes, does not drop them, and gets the table cleared promptly for the waiter or waitress. Similarly, an individual who cannot tolerate being supervised may be not able to work even in the absence of close supervision; the knowledge that one's work is being judged and evaluated, even when the supervision is remote or indirect, can be intolerated for some mentally impaired persons. Any impairment-related limitations created by an individual's response to demands of work, however, must be reflected in the RFC assessment.Pl. Br. at 10-11. Plaintiff also argues the:
ALJ also did no investigate how [Plaintiff's] specific limitations would affect her ability to perform the occupational demands of the unskilled jobs identified. This omission was harmful error because “the mentally impaired may have difficulty meeting the requirement of even so-called “low stress jobs.” It is unclear how the ALJ's broad RFC limiting [Plaintiff] to performing simple and routine tasks, making simple work-related decisions, and tolerating occasional interaction with the public account for [Plaintiff's] inability to deal with work demands/stress.Pl. Br. at 11 (internal citations omitted). As explained above, substantial evidence supports the ALJ's rejection of Dr. Bredow's opinion that Plaintiff had a marked limitation in the ability to deal with normal work stress and complete a normal workday and workweek without interruptions from psychologically-based symptoms. Given Plaintiff's argument depends on Plaintiff having an “inability to deal with work demands/stress” (Pl. Br. at 11), and substantial evidence supports the ALJ concluding that Plaintiff was not so limited, this argument fails.
3. Consistency of the Evidence
Plaintiff argues the ALJ's reliance on Plaintiff's activities of daily living in the consistency analysis amounts to reversible error. Pl. Br. at 12 (citing Orn v. Astrue, 495 F.3d. 625, 639 (9th Cir. 2007); accord Gonzales v. Colvin, No. 3:13-CV-02620, at ECF No. 26 (M.D. Pa. Feb. 17, 2015)). Plaintiff adds “[u]nder the circumstances and given the medical opinions of record, it was error for the ALJ to infer an ability to handle the stress demands of competitive, remunerative employment on a sustain basis from the ability to perform very basic activities of daily living. Pl. Br. at 13 (citing Draper v. Barnhart, 425, F.3d 1127, 1131 (8th Cir. 2005) (“evidence of performing general housework does not preclude a finding of disability”); Bjornson v. Astrue, 671 F, 3d 640. 647 (7th Cir. 2012) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . . and is not held to a minimum standard of performance, as [one] would be by an employer”).
Where a medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a consistency finding on the claimant's subjective statements. Soc. Sec. Ruling 16-3p; 20 C.F.R. § 404.1529(c)(2), (3); id. § 416.929(c)(2), (3). Although on March 16, 2016, the Social Security Administration eliminated the use of the term “credibility” from the agency's sub-regulatory policy, the agency continues to evaluate a disability claimant's statements of symptoms using a two-step process:
In determining whether an individual is disabled, we consider all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record. We define a symptom as the individual's own description or statement of his or her physical or mental impairment(s). Under our regulations, an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability. However, if an individual alleges impairment-related symptoms, we must evaluate those symptoms using a two-step process set forth in our regulations.
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities …See Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims.
The Court finds the facts in this case distinguishable from cases reversed due to an inaccurate reliance upon ADLs since in this case the ALJ highlighted ADLs to demonstrate the extent which such contradicted the severity of alleged symptoms. See Horodenski v. Comm'r of Soc. Sec., 215 Fed.Appx. 183, 188 (3d Cir. 2007) (finding significant a plaintiff's testimony about her daily activities was internally inconsistent, thus supporting the ALJ's determination of according her testimony little weight); Smith v. Astrue, 359 Fed.Appx. 313, 317 (3d Cir. 2009) (claimant's testimony that she was essentially bedridden was contradicted by evidence that she had been the primary caretaker for a young child for two years); see also Orn v. Astrue, 495 F.3d 625, 636 (9th Cir.2007) (stating that inconsistencies in testimony or between testimony and other evidence is proper reason to discredit a social security plaintiff); Weidman v. Colvin, 164 F.Supp.3d 650, 691 (M.D. Pa. 2015) (explaining “[e]vidence can be used to discount credibility if such evidence demonstrates a contradiction or inconsistency”); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.2008) (ALJ erred in making adverse credibility inferences from uncontradicted evidence). In this instance, the ALJ summarized the alleged severity of symptoms:
From a mental standpoint, she indicated that her depression and anxiety with panic attacks strain her ability to work by interfering with attendance, as most days she is unable to get out of bed. She noted that she experiences mental fogginess, disassociations at times, memory deficits and poor focus. She has difficulty handling stress and changes in routine, but she has no problems getting along with others. . . . She often goes back to bed to sleeps for several more hours after getting her daughter ready for school. She reports that she has no social life, as her mental illness and anxiety keeps her confined to her home . . . .(Tr. 21). Given the severity of the alleged symptoms, the ADLs are relevant to support the ALJ's consistency analysis. For example, the ALJ noted ADLs that contradict Plaintiff's assertion that most days she is unable to get out of bed and the medical record cited above indicate despite Plaintiff's assertion that panic attacks strain her ability to work, the frequency of panic attacks was significantly reduced with treatment. Moreover, the medical opinion of Dr. Fink supports the ALJ's consistency analysis. This case is unlike others where the ALJ omits instances of severe exacerbations in symptoms in review of the longitudinal record and over relies upon ADLs such as in Walters v. Saul and Warne v. Saul. See Walters v. Saul, 452 F.Supp.3d 164, 180-81 (M.D. Pa. 2020), report and recommendation adopted, No. 1:18-CV-2287, 2020 WL 1531369 (M.D. Pa. Mar. 31, 2020); Warne v. Saul, No. 3:19-CV-01489, 2020 WL 6787162, at *9-11 (M.D. Pa. Oct. 2, 2020), report and recommendation adopted, No. 3:19-CV-1489, 2020 WL 6781932 (M.D. Pa. Nov. 18, 2020). In Warne v. Saul, the Court observed:
the ALJ highlights Plaintiff “can care for his son, read, and prepare simple meals, ” and “watch television, drive, and manage money” to support a finding that Plaintiff possesses a moderate limitation in concentrating, persisting, or maintaining pace, and a moderate limitation in understanding, remembering, or applying information, however, the ALJ decision omits Plaintiff's report of “inappropriate sexual contact” with a step-son resulting in a referral to Child Protective Services and failed to mention Plaintiff's suicide attempts while driving. . . . In support of finding Plaintiff had no limitation interacting with others, the ALJ cited to where Plaintiff reported he got along with authority figures, visited family weekly, shopped and treatment
notes that indicated Plaintiff was cooperative and well-groomed with normal speech, logical and goal directed thought processes, fair insight, and fair judgment. However, there is no mention regarding reports of Plaintiff's behavior at his past job . . . indicating he pushed a co-worker into a pool in 2011, his failed work attempt as a janitor, or Dr. Hermann's July 2017 opinion stating Plaintiff “wears headphones - listens to music in attempt to drown out voices.”Walters v. Saul, 452 F.Supp.3d 164, 180-81 (M.D. Pa. 2020), report and recommendation adopted, No. 1:18-CV-2287, 2020 WL 1531369 (M.D. Pa. Mar. 31, 2020) (internal citations omitted). In Warne v. Saul the Court found the ALJ's reliance on ADLs insufficient to reject the opinion of a medical expert and many observations of other health professionals in the record. Warne v. Saul, No. 3:19-CV-01489, 2020 WL 6787162, at *9-11 (M.D. Pa. Oct. 2, 2020), report and recommendation adopted, No. 3:19-CV-1489, 2020 WL 6781932 (M.D. Pa. Nov. 18, 2020).
Upon review of the record, the Court finds the ALJ properly considered the consistency of Plaintiff's allegations with the record, including review of Plaintiff's ADLs and medical opinions, in totality, and substantial evidence supports the ALJ's determination that the medical evidence did not fully support a finding of work-preclusive limitations. Substantial evidence supports the ALJ's evaluation of Plaintiff's statements of symptoms. See Soc. Sec. Ruling 16-3p; 20 C.F.R. §§ 404.1529, 416.929.
VII. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VIII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.