Opinion
No. 3:17-cv-02349
11-19-2018
DWAYNE E. WETZEL, Plaintiff, v. NANCY BERRYHILL, Deputy Commissioner For Operations of Social Security, Defendant.
(Mariani, J.)
()
REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. § 405(g), seeking judicial review of the Deputy Commissioner of Social Security's ("Deputy Commissioner") final decision denying Dwayne E. Wetzel's ("Wetzel") claim for a period of disability and disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the 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 stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED. I. Background and Procedural History
On December 9, 2010, Wetzel protectively filed for a period of disability and disability insurance benefits under Title II, and for supplemental security income under Title XVI of the Social Security Act, alleging an onset date of disability of October 30, 2007. (Tr. 84, 91). Wetzel previously received a hearing level unfavorable decision from Administrative Law Judge Michele Stolls on October 5, 2010, which Wetzel did not pursue on appeal. (Tr. 532).
In Wetzel's brief, December 9, 2010, is listed as the date of application for both disability insurance benefits and supplemental security income. (Doc. 12, at1). However, Wetzel's actual applications for disability benefits and supplemental security income are dated December 28, 2010. (Tr. 84, 91). The Court will use the dates listed in Wetzel's brief.
Administrative Law Judge (ALJ) Hardiman remarks that Wetzel's alleged disability onset date of October 30, 2007, makes an "implied request for reopening." (Tr. 532). However, ALJ Hardiman states in her decision that "[t]he request [for reopening] was reviewed this time, as well as last time and no grounds have been established for reopening." (Tr. 532). Thus, ALJ Hardiman states "res judicata applies and [Wetzel] cannot re-litigate the prior period.
Wetzel is an adult individual born December 3, 1970. (Tr. 555). Wetzel was 36 years old on his alleged disability onset date, which is defined as a "younger individual age 18-49" under the Social Security Act. (Tr. 555); see 20 C.F.R. § 404.1563(c); 20 C.F.R. § 416.963(c). In his application, Wetzel reports that the following impairments prevent him from working: seizures, depression, and multiple sclerosis. (Tr. 120).
Wetzel's December 9, 2010, claims were denied on August 22, 2011. (Tr. 60, 65). On September 8, 2011, Wetzel filed a timely request for an administrative hearing that was subsequently granted. (Tr. 72-73). With the assistance of counsel, Wetzel appeared and testified before Administrative Law Judge ("ALJ") Therese Hardiman on May 1, 2012, in Wilkes-Barre, Pennsylvania. (Tr. 28). Impartial vocational expert, Gerald Keating also appeared and testified at the hearing. (Tr. 28-49).
In a written decision dated June 27, 2012, the ALJ denied Wetzel's application for benefits. (Tr. 22). Wetzel appealed the ALJ's decision to the Appeals Council, but the Appeals Council denied Wetzel's request for review on October 23, 2013. (Tr. 1). Wetzel filed a complaint on December 9, 2013. (Doc. 12 p. 2). The Commissioner filed an answer to the complaint on March 4, 2014. (Doc. 12 p. 2). On July 23, 2015, Magistrate Judge Gerald Cohn issued a Memorandum and Order vacating the decision of the Commissioner and remanding the case for further proceedings. (Doc. 12, at 2)
Judge Cohn's Memorandum is indexed under case 3:13-CV-02955.
With the assistance of counsel, Wetzel appeared and testified before ALJ Hardiman a second time on April 6, 2016, in Wilkes-Barre, Pennsylvania. (Tr. 566). Impartial vocational expert, Karen Kane also appeared and testified at the second hearing. (Tr. 566). In a written decision dated July 14, 2016, the ALJ denied Wetzel's application for benefits. (Tr. 557).
During the hearing, Wetzel's attorney asked a series of questions about Wetzel's conditions and activities. (Tr. 573-579). In response to his attorney's questioning, Wetzel testified that he resides with his girlfriend and her daughter. (Tr. 574). He stated that he often becomes overheated "when the hot air turns on." Id. He remarked that his preference is to keep the thermostat in his home at 65, but to accommodate his girlfriend and her daughter he keeps the temperature at 70. Id. He testified that when the temperature is too hot he gets "sweated up" and that he gets tired and exhausted. (Tr. 574-575).
Wetzel further stated that he's "depressed all the time" and that he "doesn't feel like doing anything." (Tr. 575). He testified that he has most likely been suffering from depression since 1991, and that he was hospitalized for depression in 2014. Id. Wetzel explained that he "can't get over stuff" and that he is going to change psychiatrists because he wants to go to a psychiatrist "that's actually going to sit and talk to [him]." Id. He testified that he just bottles it up when he is stressed, and that he "really [doesn't] sit and talk to anybody" about it. (Tr. 577). Wetzel further stated that he doesn't "bother doing anything" and that he "just stay[s] in the house and don't bother nobody." Id.
When asked by his attorney if he has problems with balance or walking, Wetzel replied that "[o]nce in a while I lose my balance if I step down off something." (Tr. 576). Wetzel further testified that he has problems with insomnia, that he sleeps half the time, and that he is tired and always has a "dry, cotton mouth from [his] medication." Id.
Wetzel also remarked that he is getting injections in his eyes, that his doctor wants to do laser surgery, and that he has "to move closer to the TV to really see, to watch it." (Tr. 574). When Wetzel's lawyer asked if he had any problems with focusing or with blurriness of vision, Wetzel answered that when he's at the eye doctor's he has "to focus on the chart to make out the smallest of the lines with [his] glasses on." Id. Wetzel further testified that when he takes his medication, Venlafaxine that he doesn't sleep well at night. (Tr. 573).
Wetzel filed exceptions to the ALJ's unfavorable decision on August 15, 2016. (Doc. 12 p. 2). Wetzel appealed the ALJ's decision to the Appeals Council, but the Appeals Council replied on March 20, 2017, that the Appeals Council finds "no reason under [their] rules to assume jurisdiction." (Tr. 519). This makes the ALJ's July 14, 2016, decision the final decision subject to judicial review by this Court.
Wetzel filed a complaint on December 19, 2017. (Doc. 1). In his complaint, Wetzel requests that the Court reverse the ALJ's decision and award benefits or remand the case to the Commissioner for a new hearing. Id. On April 13, 2018, the Commissioner filed an answer to Wetzel's complaint. (Doc. 8). In her answer, the Commissioner maintains that the decision denying Wetzel's application for benefits is correct, is made in accordance with the law and regulations, and is supported by substantial evidence. Id. at 3. This matter has been fully briefed by the parties and is ripe for decision. (Docs. 12, 13). II. 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 the claimant is disabled, but whether the Commissioner's finding that the claimant is 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 that 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); 20 C.F.R. § 416.905(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); 20 C.F.R. § 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must also 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. 20 C.F.R. § 404.131(a).
Throughout this Report, the Court cites to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on July 14, 2016.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404. 1520(a); 20 C.F.R. § 416.920(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); 20 C.F.R. § 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. An 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); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(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); 20 C.F.R. § 416.945(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 from engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, the burden then 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); 20 C.F.R. § 416.912(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. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
c. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations define medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c) and 20 C.F.R. § 416.927(c). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (explaining what is required for a source's opinion to be controlling).
Where no medical opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinion: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c); 20 C.F.R. § 416.927(c).
Furthermore, the ALJ's articulation of the weight accorded to each medical opinion must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). "Where a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). III. The ALJ's Decision
In her July 14, 2016, decision denying Wetzel's claim, the ALJ determined that Wetzel met the insured status requirement of Title II of the Social Security Act through December 31, 2012. (Tr. 535). The ALJ evaluated Wetzel's application for benefits at each step of the sequential process. (Tr. 533-557). At step one, the ALJ found Wetzel had not engaged in substantial gainful activity since the alleged onset date of October 30, 2007. (Tr. 535). At step two, the ALJ found that Wetzel had the following severe impairments: multiple sclerosis, degenerative disc disease/degenerative joint disease of the cervical spine, seizure disorder, obesity, neuropathy, depressive disorder, borderline intellectual functioning, and anxiety disorder. (Tr. 536). At step three, the ALJ found that Wetzel did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant period. (Tr. 540).
Between steps three and four, the ALJ assessed Wetzel's RFC (Tr. 543-44). The ALJ found that Wetzel had the RFC to perform:
a range of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b). [Wetzel] can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand/walk for 6 hours and sit for 6 hours in an 8-hour workday. [Wetzel] requires a sit/stand option at the will or direction of the individual. He cannot push or pull with the bilateral lower extremities. He can occasionally climb, balance, stoop, kneel, crouch, and crawl, but never on ladders. [Wetzel] cannot do light overhead reaching. He must avoid temperature extremes, vibrations, and hazards, including heights and moving machinery. [Wetzel] is limited to simple, routine tasks and "low stress" as defined as only occasional decision making and only occasional changes in the work setting. (Tr. 543-544).
At step four, the ALJ found that Wetzel was unable to perform his past relevant work. (Tr. 555). Wetzel previously worked as a corrugator operator. (Tr. 555). During the hearing, "the vocational expert testified that a corrugator operator is a medium duty skilled job." (Tr. 555). The ALJ also found that Wetzel had at least a high school education and that he was able to communicate in English. Id.
At step five, the ALJ determined based on Wetzel's age, education, work experience, and RFC that there are a significant number of jobs in the national economy that Wetzel can perform including an office helper, a ticket salesperson, and an information clerk. (Tr. 556). Thus, the ALJ rendered a finding of not disabled. (Tr. 557).
There are 400 positions available in Northeast Pennsylvania. (Tr. 556).
In Northeast Pennsylvania there are 800 positions available based on the sit/stand option. Id.
There are 200 positions available in Northeast Pennsylvania. Id. The ALJ further notes that "[t]he vocational expert also testified that there would be more jobs at the state and national levels in these categories cited." (Tr. 556).
IV. Analysis
Wetzel asserts five assignments of error. (Doc. 12, at 4). Wetzel claims that the ALJ: (1) erred in finding that Wetzel does not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart B, Appendix 1, in particular Listing 11.09 for multiple sclerosis; (2) failed to give an adequate rationale when rejecting the treating and examining source opinions and that the ALJ failed to give proper consideration to treating and examining source opinions pursuant to the provisions of 20 C.F.R. § 416.927 and C.F.R. § 404.1527(d), as well as Social Security Rulings 96-2p and 96-5p; (3) did not appropriately assess the plaintiff's limitations according to SSR 16-3p; (4) erred by failing to take into consideration the type, dosage, effectiveness, and side effects of medication, as well as treatments other than medication, as required by 20 C.F.R. 416.929 and Social Security Ruling 96-7p; and (5) erred in formulating the plaintiff's RFC. (Doc.12, at 4). We shall address each argument seriatim.
a. Substantial Evidence Supports the ALJ's Step Three Findings
Wetzel contends that the ALJ erred in finding that Wetzel does not meet Listing 11.09 for multiple sclerosis (MS) under 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 12, at 4). To qualify for Listing 11.09, one must have either (A) disorganization of motor function, (B) visual or mental impairment, or (C) "significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the [MS] process." 20 C.F.R. Part 404 Subpart P, Appendix 1. The ALJ explains in her decision that Wetzel's "impairments do not rise to listing level severity under section 11.09 because" Wetzel's impairments do not meet or medically equal the criteria of either 11.09(A), 11.09(B), or 11.09(C) as required. (Tr. 541).
This requirement is further defined in Listing 11.04B as "[s]ignificant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station." 20 C.F.R. Part 404 Subpart P, Appendix 1.
In her decision, the ALJ states that Wetzel does not qualify for 11.09(A) because Wetzel "does not have significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station." (Tr. 541). The ALJ explains that between 2010 and 2012 Wetzel's medical records demonstrate that his "neck and upper extremity findings are consistently reported to be normal." (Tr. 545). The ALJ discusses how during the time period at issue, Wetzel's neurologist, Dr. Chawluk's records "reflect normal neck and upper extremity findings," and that Wetzel's primary care records are "silent and lack any longitudinal evidence of any neck or upper extremity deficits." (Tr. 545).
The ALJ also explains how Wetzel's lower extremities do not meet or equal the Listing requirements for 11.09. (Tr. 546). The ALJ cites to Dr. Chawluk's medical opinion that with the exception of a "periodic noting of a lower extremity sensation decrease in Wetzel's knees," that Wetzel's "strength and other neurological findings are reported to be normal." (Tr. 546). Further, the ALJ discusses how despite Wetzel's complaint of knee pain, his meniscal tear, and his previous left ankle injury "the balance of the record is silent as to any ongoing knee or meniscal impairment or objective deficits related to [Wetzel's] knee" and that "there is no longitudinal evidence of objective deficits correlated or attributable to these conditions." (Tr. 538).
Next, The ALJ finds that Wetzel does not meet the requirements of 11.09(B) regarding visual or mental impairments. (Tr. 538-39, 541-43). The ALJ explains how Wetzel's diagnosed vision related conditions of extropia, intermittent monocular right eye, status post strabismus surgery, non-proliferative diabetic retinopathy, non-neoplastic nevus OS, and a cataract, are non-severe because "[t]here is no evidence that these conditions have met the 12-month durational requirements for severity and there is no longitudinal evidence of objective deficits correlated or attributable to these conditions." (Tr. 539). The ALJ further explains how Wetzel's "visual acuity is consistently reported within normal limits with no visual field loss" and that "[t]here is no evidence of blindness, visual acuity or visual field deficits, or acute optic neuritis." (Tr. 539).
In relation to Wetzel's mental impairments, the ALJ states that Wetzel's "mental impairments, considered singly and in combination do not meet or medically equal the criteria" for the related Listings to satisfy 11.09. (Tr. 541). The ALJ finds that Wetzel has severe impairments of depressive disorder, borderline intellectual functioning, and anxiety disorder. (Tr. 536). However, the ALJ explains that none of Wetzel's mental impairments meet the paragraph B or paragraph D criteria for Listings 12.04 (affective disorders), 12.05 (intellectual disability), or 12.06 (anxiety related disorders) that would satisfy Listing 11.09(B). (Tr. 541-543). To satisfy the paragraph B criteria in Listings 12.04 and 12.06, or paragraph D in Listing 12.05, Wetzel's "mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404 Subpart P, Appendix 1.
The ALJ explains in her decision that Wetzel has mild restrictions in activities of daily living, mild difficulties in social functioning, moderate difficulties with regard to concentration, persistence or pace, and no episodes of decompensation of extended duration. (Tr. 541-42). For support, the ALJ points to how Wetzel "performs his own self-care," cooks meals, is a member and regular visitor to his Fire Company, "gets along with his family and people in general," and was capable of providing testimony that was "logical, coherent, and without any apparent lapses in attention" during the hearing. (Tr. 542). Ultimately the ALJ states that "[b]ecause [Wetzel's] mental impairments do not cause at least two marked limitations or one marked limitation and repeated episodes of decompensation, each of extended duration, the paragraph B criteria (paragraph D criteria for listing 12.05) are not satisfied." (Tr. 542). Thus, Wetzel does not satisfy Listings 12.04, 12.05, or 12.06 and does not satisfy 11.09(B). Furthermore, the ALJ states that Wetzel's impairments do not meet or equal the requirements of 11.09(C) because Wetzel "does not have significant, reproducible fatigue or motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the [MS] process." (Tr. 541).
The ALJ also discusses in the decision how Wetzel does not satisfy the paragraph C criteria in Listings 12.04 and 12.06, and how he does not satisfy the paragraph A, B, or C criteria of 12.05. (Tr. 542-43).
Despite these findings, Wetzel claims that his testimony and his medical evidence confirm the elements of Listing 11.09. (Doc. 12 p. 6). In support of this argument, Wetzel merely cites several doctors' general findings without articulating how the stated medical records satisfy the requirements of Listing 11.09 and/or disprove the ALJ's determination that Wetzel does not meet the requirements of Listing 11.09. Id. at 6-8. This is insufficient, as claimant's seeking disability benefits and supplemental security income "bear the burden of presenting 'medical findings equivalent in severity to all the criteria for the one most similar impairment'" because "an impairment, no matter how severe, that meets or equals only some of the criteria for a listed impairment is not sufficient." Spallone v. Berryhill, No. 3:17-CV-1152, 2018 WL 2771581, at *9 (M.D. Pa. Apr. 3, 2018), report and recommendation adopted, No. 3:17-CV-1152, 2018 WL 2770646 (M.D. Pa. June 8, 2018) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)).
Here, Wetzel states under his first claim of error that he had "MRIs of his brain and a spinal tap which the [ALJ] found in her decision to confirm that [he] has [MS],but then states that his remaining evidence supporting his first claim of error will be demonstrated by the information in his second claim of error. See (Doc. 12, at 6) (stating that the "testimony and the medical evidence of record discussed below confirm the elements of the Listing. (Id.)). Given that, Wetzel fails to meet his burden of proving how he meets or equals Listing 11.09, and that the ALJ provides a thorough explanation for why Wetzel does not meet the various criteria for Listing 11.09 based on the record, the Court finds that there is substantial evidence to support the ALJ's step three evaluation that Wetzel does not meet or equal Listing 11.09.
b. Whether the ALJ erred in her Treatment of the Medical Opinion Evidence
Wetzel asserts that "the [ALJ] failed to give an adequate rationale when rejecting the treating and examining source opinions and [that] the [ALJ] failed to give proper consideration to treating and examining source opinions." (Doc. 12, at 4). Wetzel, however, fails to: (1) specify which medical opinion evidence the ALJ evaluated and/or rejected incorrectly; (2) demonstrate or explain how the ALJ erred; or (3) provide evidence in support of his asserted error. In stating his claim, Wetzel neglects to cite to any regulations, statutes, or cases for support, but instead puts forth a series of medical evidence from a variety of doctors and tests without explanation. (Doc. 12, at 6-8). The medical evidence presented contains one medical opinion from primary care physician, Dr. Kraynak, and treatment note summaries for Dr. Chawluk, Dr. Singh, Dr. Uzoukwu, and Dr. Newton without any further direction. (Id.). Thus, the Court will address the opinion evidence of Dr. Kraynak cited by Wetzel. It is the responsibility of the claimant to prove why he or she is disabled in steps one through four of the process and to present arguments and evidence to support his or her claim. See Tilton v. Colvin, 184 F. Supp. 3d 135, 138 (M.D. Pa. 2016) (stating that "[t]he ultimate burden of proving disability under the Act lies with the claimant"). Here, Wetzel does not formulate any actual argument in support of his claim that the ALJ erred in her evaluation of the treating and examining source opinions. (Doc. 12, at 4, 6-8).
Furthermore, portions of the medical evidence that Wetzel recounts in the section occur either before or after the consideration period. For instance, the treatment note summary for Dr. Singh is from 2009. (Doc. 12, at 8). Additionally, some of the evidence cited by Wetzel for primary care physician, Dr. Kraynak and neurologist, Dr. Chawluk occurred prior to October 5, 2010. (Doc. 12, at 6-7).
The consideration period for Wetzel's Title II claim is October 6, 2010 through December 31, 2012, because Wetzel's prior unfavorable hearing level decision by ALJ Stolls on October 5, 2010, has not been reopened. (Tr. 532). The time period under consideration for Wetzel's Title XVI claim is December 9, 2010 through July 14, 2016, which is the date of the ALJ's decision. (Tr. 532, 557).
Wetzel lists several records from 2006, 2008, and 2009. (Doc. 12, at 7-8).
As directed by the Court's remand, the ALJ explains in her decision how she evaluates and takes into consideration the prior evidence when "determining issues such as the severe and non-severe impairments, durational aspects of the severe and non-severe impairments, and in formulating the RFC." (Tr. 545). However, the ALJ finds that there are "no grounds for reopening" the prior evidence and that it "is not probative or relevant to determining [Wetzel's] actual function during the relevant period under consideration, as there is existing evidence which has been submitted covering these specific periods." (Tr. 536, 545).
The July 23, 2015, remand by Judge Cohn "indicates that the Magistrate Judge wants earlier evidence evaluated." (Tr. 532).
Wetzel also mentions an MRI of the brain dated June 16, 2017. (Doc. 12, at 7). Wetzel submitted this evidence to the Appeals Council on August 10, 2017 and attached it to his brief as an exhibit. (Doc. 12, 7-8). This medical evidence was submitted over a year after the ALJ made her decision on July 14, 2016. (Tr. 557). Wetzel fails to put forth an argument related to the MRI evidence, but had he, it likely would not be applicable since as the Court in Ficca v. Astrue, 901 F. Supp. 2d 533, 544 (M.D. Pa. 2012) explains "evidence submitted after the administrative law judge's decision cannot be used to argue that the administrative law judge's decision is not supported by substantial evidence."
The ALJ states in her decision that she accords little weight to the January 21, 2011, letter of Dr. Kraynak, because it is not well supported and is inconsistent with the doctor's own records and the overall record as a whole. (Tr. 552); (Tr.230). In the letter, Dr. Kraynak opines that Wetzel will have difficulty finding employment due to his current state and lack of ability to drive. (Tr. 230). The opinion of a treating source is afforded controlling weight when it is well-supported by objective medical evidence that is consistent with substantial evidence in the record. See 20 C.F.R. § 404.1527; Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). ALJs have the authority to assign weight to medical opinions entered into the record. See Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014) (discussing how "the ALJ is free to accept some medical evidence and reject other evidence, provided that [the ALJ] provides an explanation for discrediting the rejected evidence").
Here, the ALJ explains that the records from both Dr. Kraynak and Dr. Chawluk "report completely normal findings and lack evidence of any longitudinal objective deficits beyond noting sensation loss in his lower extremities consistent with mild polyneuropathy" and that "the balance of the findings are normal, including lower extremity strength and gait." (Tr. 552). The ALJ discusses how Dr. Kraynak's January 21, 2011, opinion that Wetzel will have difficulty finding employment is a disability determination reserved for the Commissioner. Id. Only the Commissioner has the authority to make disability determinations. See 20 C.F.R. § 404.1527(d)(1)-(3); 20 C.F.R. § 416. 927(d)(1)-(3) (discussing how no special significance will be given to the source of medical opinions "on issues reserved to the Commissioner" such as disability determinations).
The ALJ further explains that Dr. Kraynak's opinion "does not articulate or offer any specific functional limitations to [Wetzel's] ability to perform work-related activities, nor does it offer any objective signs that would support functional limitations." (Tr. 552). Ultimately, the ALJ finds that "little weight can be afforded this opinion as it is clearly not well supported on the face of the opinion and is clearly not well supported or consistent with the doctor's own records or the record as a whole." (Tr. 552).
However, the ALJ does not discuss the November 12, 2015, opinion of Dr. Kraynak which states that Wetzel's medical conditions "prevent him from being able to have a full-time job" and which opine that Wetzel's conditions "affect his ability to perform many of his activities of daily living." (Tr. 807). In this letter, Dr. Kraynak further states that Wetzel should "limit his work around machinery, moving parts, and should avoid hot, humid environments," and "not become overly stressed." Id. Although, the ALJ did not address this letter in her decision, the Court finds that error harmless as the ALJ has already fully explained in her decision why Dr. Kraynak's findings are inconsistent with Wetzel's own testimony, and the record as a whole. (Tr. 552); see also (Tr. 541) (explaining that the ALJ finds that in activities of daily living Wetzel has only mild restrictions since he "performs his own self-care, belongs to and regularly attends the Fire Company, cooks meals for his family, goes shopping, plays games, and goes on facebook).
Furthermore, the ALJ has already accounted for the moving machinery, temperature, overhead reaching, and stress restrictions that Dr. Kraynak discusses in his November, 12, 2015, opinion in the RFC. (Tr. 543-44). The ALJ includes limitations in Wetzel's RFC: (1) to "avoid temperature extremes, vibrations, and hazards including heights and moving machinery"; (2) that Wetzel "cannot do light overhead reaching"; and (3) that Wetzel is "limited to simple, routine tasks and low stress as defined as occasional decision making and only occasional changes in the work setting. Id. Thus, the omission of Dr. Kraynak's November 12, 2015, opinion from the ALJ discussion is harmless error since it is already accounted for in the RFC, and Wetzel provides no support or argument for how the evidence would change the outcome of the decision. See Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 1706, 173 L. Ed. 2d 532 (2009) (discussing how "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). In light of this analysis, the Court finds that there is substantial evidence to support the ALJ's evaluation of the opinion evidence.
c. Whether the ALJ Appropriately Considers Wetzel's Subjective Complaints
Wetzel asserts that the ALJ did not properly assess his subjective complaints according to Social Security Ruling (SSR) 16-3p. (Doc. 12, at 9). Here, Wetzel merely recounts symptoms that Wetzel testified during the hearing as experiencing without any further direction or explanation. (Id.). Specifically, Wetzel reiterates that he bites his tongue without noticing, is depressed, becomes overheated and tired, has trouble focusing his eyes, sometimes loses his balance, and has leg weakness when he is overheated, but does not elaborate or explain any further how or why he feels the ALJ failed to properly evaluate his symptoms. (Doc. 12, at 9).
Since Wetzel's third and fourth assignments of error are interrelated, the Court is addressing both of them together. (Doc. 12, at 4).
Contrary to Wetzel's assertions, the ALJ accounts for Wetzel's symptoms related to depression and temperature in the RFC by including additional limitations to "avoid temperature extremes" and by limiting Wetzel to "simple, routine tasks and low stress as defined as only occasional decision making and only occasional changes in the work setting." (Tr. 543-44). Additionally, the ALJ explains that based on the record as a whole, including Wetzel's own testimony that she finds Wetzel's "level of activity, his benign/normal findings, and his routine, conservative care are not consistent with a finding of disability, and do not support the level of incapacity or level of side effects from medication" that Wetzel advances. (Tr. 548).
For Wetzel's claim that the ALJ failed to take into consideration Wetzel's "type, dosage, effectiveness, and side effect[s] of medication, as well as treatments other than medication," Wetzel provides a one sentence argument stating that Wetzel "testified at the time of the hearing that the multiple medications he takes cause him to become extremely tired, experience tingling in his feet and hands, and dry cotton mouth." (Id.). Wetzel's recounting of his testified symptoms without any explanation, argument, or support other than a citation to his hearing testimony is inadequate and unconvincing. See Durden v. Colvin, 191 F. Supp. 3d 429, 449-50 (M.D. Pa. 2016) (stating that the claimant has the burden "to develop the record regarding his or her disability because the claimant is in a better position to provide information about his or her own medical condition").
When evaluating a claimant's symptoms the ALJ utilizes a two-step process. SSR 16-3P WL 119029 (S.S.A. Mar. 16, 2016). First, the ALJ must determine whether there is a medically determinable impairment, that can be shown by medically acceptable clinical and laboratory diagnostic techniques, that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b). An individual will not be found to be "disabled based on alleged symptoms alone." See SSR 16-3P WL 119029 at *4 (explaining that "[i]f there is no medically determinable impairment, or if there is a medically determinable impairment, but the impairment(s) could not reasonably be expected to produce the individual's symptoms" those symptoms will not be found to affect the claimant's "ability to perform work-related activities"). Under SSR 16-3p, once the ALJ has found that a medically determinable impairment is established, the ALJ then evaluates the claimant's allegations about the intensity, persistence, or functionally limiting effects of her symptoms against the evidence of record. SSR 16-3p, 2016 WL 1119029, at *4. This evaluation requires the ALJ to examine the entire record, including objective medical evidence, plaintiff's testimony, and any other relevant evidence. Id.
Here, the ALJ finds that Wetzel's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but his statements about the intensity, persistence, and limiting effects of his symptoms "are not entirely consistent with the medical evidence and other evidence in the record." (Tr. 547). The ALJ explains in her decision: (1) that she considered Wetzel's "array of medication side effects"; and (2) how the record demonstrated that when Wetzel reported medication side effects to his doctors "the medications were changed, and the complaints due to the medications seem[ed] to [be] resolve[d]." (Tr. 548). The ALJ also noted that during the hearing, Wetzel testified "that his medications are effective" and that his depression medicine can make him tired. (Tr. 548).
The ALJ states in her decision that Wetzel's "impairments, subjective complaints and medication side effects have been addressed with limitations not only to the exertional and non-exertional limitations" but also include "specific mental limitations which address those limitations to concentration, pace, or persistence associated with [Wetzel's] subjective complaints of pain, fatigue, and being tired as a result of his medication side effects." (Tr. 551). Specifically, the ALJ accounts for Wetzel's complaints and side effects by including in the RFC "limitations to simple, routine tasks and low stress work activity" which she explains she "included to address all of [Wetzel's] mental impairments, subjective complaints, and medication side effects." (Tr. 547). In light of the ALJ's detailed explanation of how she considered and included additional limitations into the RFC based on Wetzel's subjective complaints and medication side effects the Court finds that the ALJ properly assessed and considered Wetzel's subjective complaints and medication side effects.
d. Whether Substantial Evidence Supports the ALJ's RFC Finding
Wetzel claims that the ALJ erred in finding that he has the residual functional capacity to perform a limited range of light work. (Doc. 12, at 4). Instead, Wetzel asserts that due to his severe physical impairments, he is unable to perform work at any exertional level. (Doc. 12, at 9). Wetzel further states that the ALJ "should have based her RFC findings on the fourth hypothetical question posed to the vocational expert," where the vocational expert testified that Wetzel would be unable "to perform his past relevant work or any other work in the regional or national economy." (Id.). Wetzel provides no cases, statutes, regulations, or evidence in support of his assertion. Id.
The fourth hypothetical posed to the vocational expert added the following limitations: the individual in question may require breaks in excess of the normal two per day, plus lunch, and/or may require unscheduled breaks throughout the day of varying lengths, and/or may be reasonably expected to be absent in excess of three times a month, and/or may be reasonably expected to be off-task twenty percent of the day. (Tr. 582). --------
It is the duty of the ALJ to formulate a claimant's RFC. A claimant's RFC assessment is a reflection of the most a claimant can still do despite the limitations resulting from his or her medically determinable severe and non-severe impairments. 20 C.F.R. § 404.1545; 20 C.F.R. § 416.945. Hypothetical questions "to a vocational expert must reflect all of the claimant's impairments that are supported by the record to provide substantial evidence." Durden v. Colvin, 191 F. Supp. 3d 429, 459 (M.D. Pa. 2016). Commonly, attacks on the adequacy of hypotheticals posed to a vocational expert are actually an attack on the RFC. Rutherford v. Barnhart, 339 F.3d 546, 554 n. 8 (3d Cir. 2005). There are two ways that a plaintiff typically frames this type of argument. First, the claimant argues that the testimony cannot be relied upon because the ALJ failed to convey limitations to the vocational expert that were properly identified in the RFC assessment. Id. Second, the claimant argues that the vocational expert's testimony cannot be relied upon because the ALJ failed to recognize established limitations during the RFC assessment and thus did not convey those limitations to the VE. Id. Here, Wetzel is asserting a modified version of the second argument in stating that the ALJ erred in not applying the more restrictive hypothetical that the ALJ posed to the vocational expert to Wetzel's RFC. However, as the Commissioner states, "an ALJ is not required to include limitations that she finds to be inconsistent with the record evidence in her [RFC] finding" nor is the ALJ required "to credit vocational expert testimony that is based on such limitations." See Craigie v. Bowen, 835 F.2d 56, 57-58 (3d Cir. 1987) (explaining that the ALJ does not have to accept a claimant's subjective testimony nor does the ALJ need to accept the vocational expert's testimony which is "predicated upon it").
The ALJ in this instance explains that Wetzel's RFC is supported by the record as a whole including Wetzel's current treatment, Wetzel's own reported daily activities, the diagnostic testing records, the mental examination findings, Wetzel's work history, his objective physical examinations, and the medical opinion evidence. (Tr. 555). While, Wetzel puts forth no evidence to support his assertion that the ALJ erred in formulating the RFC and in applying the vocational experts hypothetical, the ALJ on the other hand, thoroughly explains her RFC findings based on the record as a whole. (Tr. 537-56). Thus, the Court finds that there is substantial evidence in the record to support the ALJ's RFC, and her application of the vocational expert's testimony to the RFC. V. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Deputy Commissioner of Social Security be AFFIRMED and that Wetzel's requests for the award of benefits or remand for a new administrative hearing be DENIED.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge Dated: November 19, 2018 DWAYNE E.WETZEL, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 19, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: November 19, 2018