Opinion
Civil Action 3:22-cv-00176
01-27-2023
WILLIAM WITHERS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge
The plaintiff, William Withers, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying a claim for disability insurance benefits under Title II of the Social Security Act (the “Act”).
This matter has been referred to the undersigned United States magistrate judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be affirmed.
I. Background
On May 3, 2017, Withers protectively filed an application for disability insurance benefits, asserting a disability onset date of March 15, 2017. His application was initially denied by state agency reviewers on July 25, 2017. The plaintiff then requested an administrative hearing.
An initial hearing was subsequently held on September 5, 2018, before an administrative law judge, Scott M. Staller (the “ALJ”). In addition to the plaintiff himself, the ALJ received testimony from an impartial vocational expert, Paul A. Anderson. The plaintiff was represented by counsel at the hearing.
On December 12, 2018, the ALJ denied Withers's application for benefits in a written decision. The plaintiff sought further administrative review of his claims by the Appeals Council, but that request was denied on March 9, 2020. Withers sought judicial review of the initial decision denying benefits in an earlier action before this court, Withers v. Saul, Case No. 3:20-cv-00598 (M.D. Pa. filed Apr. 9, 2020). On the Commissioner's motion, however, that earlier action was remanded for further proceedings on December 29, 2020.
On remand, a second hearing was held on October 12, 2021, before the same ALJ. In addition to the plaintiff himself, the ALJ received testimony from impartial medical expert, Jack Lebeau, M.D., and an impartial vocational expert, Terry Leslie. The plaintiff was represented by counsel at the hearing.
On November 3, 2021, the ALJ denied Withers's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Withers was not disabled under the Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Withers had not engaged in substantial gainful activity since his alleged onset date. At step two, the ALJ found that Withers had the severe impairments of: sacroiliitis; lumbar degenerative disc disease; chronic heart failure; chronic kidney disease, stage 2; cellulitis of the right foot; a depressive disorder; and an anxiety disorder. At step three, the ALJ found that Withers did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (eff. Apr. 2, 2021). In doing so, the ALJ considered Withers's limitations in four broad functional areas as a result of his mental disorders, finding no more than moderate limitations in any of the four functional areas. See generally 20 C.F.R. § 404.1520a(c) (explaining functional limitation rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas of mental functioning); id. § 12.00(F) (explaining process for using paragraph B criteria to evaluate mental impairments). In connection with listings 12.04 and 12.06, the ALJ also considered whether Withers's mental disorders were “serious and persistent,” finding that his impairments had not required specialized medical treatment or a highly structured setting that is ongoing and that diminished the symptoms and signs of his mental disorders, nor that he had achieved only marginal revised list of musculoskeletal disorders was applied. See generally adjustment as a result. See generally id. § 12.00(G) (explaining process for using alternative paragraph C criteria to evaluate certain mental impairments).
We note that the agency's list of musculoskeletal disorders was extensively revised while this plaintiff's application for disability and disability benefits was pending before the agency. Because the ALJ's final decision was issued after the effective date of this revision, the Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed.Reg. 78164, 78164 & n.2 (Dec. 3, 2020) (to be codified at 20 C.F.R. pt. 404, subpt. P, app. 1).
These four areas are: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. The ALJ found moderate limitations in Withers's ability to understand, remember, or apply information and his ability to concentrate, persist, or maintain pace. The ALJ found only mild limitations in Withers's ability to adapt or manage himself, and no limitations at all in his ability to interact with others. (Tr. 653-54.)
The Social Security regulations define “light work” as a job that “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighting up to 10 pounds.” 20 C.F.R. § 404.1567(b).
Between steps three and four of the sequential-evaluation process, the ALJ assessed Withers's residual functional capacity (“RFC”). See generally Myers, 373 F.Supp.3d at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Withers had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(a),3with the following limitations:
[T]he claimant can occasionally reach overhead with both upper extremities. He can occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch or crawl. He can frequently operate a motor vehicle. The claimant can never be exposed to unprotected heights. The claimant can understand, remember, or carry out simple, routine, repetitive tasks involving one- to two-step tasks requiring little to no demonstration that can be learned within thirty days or less from the beginning of the job. He can make judgments on simple work-related decisions.(Tr. 655.)
In making these factual findings regarding Withers's RFC, the ALJ considered his symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive he found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 404.1520c.
At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that Withers was unable to perform his past relevant work as a front desk clerk, administrative assistant, or operation specialist, as actually or generally performed.
At step five, the ALJ concluded that Withers was capable of performing other jobs that exist in significant numbers in the national economy. Based on his age, education, work experience, and RFC, the ALJ concluded that Withers was capable of performing the requirements of several representative occupations, such as cashier II (DOT #211.462-010), package line worker (DOT #753.687-038), or mail clerk (DOT #209.687-026). Based on this finding, the ALJ concluded that Withers was not disabled for Social Security purposes.
These three occupations require the capability to perform work at a light exertional level. The ALJ also cited three alternative, sedentary occupations that the claimant could perform.
The plaintiff did not seek further administrative review of his claims by the Appeals Council, making the ALJ's November 2021 decision the final decision of the Commissioner subject to judicial review by this court.
Withers timely filed his complaint in this court on February 4, 2022. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.
II. Discussion
Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g) (sentence five); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability insurance benefits administrative decisions).
Withers asserts on appeal that the ALJ's decision is not supported by substantial evidence because the ALJ erred in his evaluation of Withers's symptoms, including statements or testimony by Withers himself. See generally 20 C.F.R. § 404.1502(i) (“Symptoms means your own description of your physical or mental impairment.”).
Standing alone, a claimant's allegation of pain or other symptoms is not enough to establish an impairment or disability. 20 C.F.R. § 404.1529(a); Prokopick v. Comm'r of Soc. Sec., 272 Fed. App'x 196, 199 (3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of disability solely on a claimant's statements about disabling pain ....”). “An ALJ is permitted to reject a claimant's subjective testimony as long as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed. App'x at 199 (citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999)).
When evaluating a claimant's subjective allegations of pain or other symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must determine whether there is a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Id. at *3; see also 20 C.F.R. § 404.1529(b). A claimant cannot be found to be “disabled based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *4.
Once the ALJ has found that a medically determinable impairment has been established, the ALJ must then evaluate the claimant's allegations about the intensity, persistence, or functionally limiting effects of his or her symptoms against the evidence of record. Id. This evaluation requires the ALJ to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
Here, in evaluating the plaintiff's symptoms, the ALJ expressly considered and extensively discussed both the medical and non-medical evidence in the record. (Tr. 655-61.) This included the plaintiff's statements regarding the limiting effects of his symptoms. Based on his consideration of the whole record, the ALJ properly concluded that, while Withers's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 656.)
Citing Social Security Ruling 16-3p, the plaintiff argues that the ALJ failed to properly question him regarding his failure to seek specialized mental health treatment. The ALJ found that the claimant's medical records did not reflect the more debilitating mental health symptoms alleged by Withers. (Tr. 657.) In reaching this conclusion, the ALJ noted that the claimant's medical records reflected “little to no specialized treatment for the alleged mental impairments.” (Id.) The plaintiff argues that the ALJ was obligated to question Withers on this issue in particular because primary care physicians commonly treat their patients for mental impairments. But the ruling's language is permissive in that it states that the ALJ “may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *9 (revised Oct. 25, 2017) (emphasis added.) “The ALJ is not obligated to question a claimant; rather, [the ruling] places such a judgment within the ALJ's discretion.” Kreitz v. Berryhill, Civil No. 3:16-CV-02406, 2018 WL 410861, at *5 (M.D. Pa. Jun 6, 2018).
The plaintiff also argues that the ALJ erred in considering his activities of daily living when evaluating his symptoms. It is indeed true that “[d]isability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity.” Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981). But, nevertheless, an ALJ may properly consider a plaintiff's activities of daily living when evaluating his subjective complaints of pain or other symptoms. See Turby v. Barnhart, 54 Fed. App'x 118, 121 n.1 (3d Cir. 2002) (“Although certainly disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity, it is nonetheless appropriate for the ALJ to consider the number and types of activities in which the claimant engages.”) (citations, brackets, and internal quotation marks omitted); Durden v. Colvin, 191 F.Supp.3d 429, 442 (M.D. Pa. 2016) (“[I]t is permissible for such activities to be used to assess a claimant's [subjective allegations] in light of any true contradiction between his or her alleged severity of symptoms and the claimant's activities.”). Indeed, the applicable regulations mandate such consideration by the ALJ. See 20 C.F.R. § 404.1529(c)(3)(i).
In the course of discussing the plaintiff's activities of daily living, the ALJ remarked that Withers took an active role in his own medical treatment. (Tr. 658.) The ALJ cited this particular observation, along with a variety of other activities of daily living, in support of his finding that Withers retained an ability to focus and concentrate to complete activities. (Id.) The plaintiff argues that this particular finding was in error, citing a decision by another federal district court considering the appeal of a claimant who suffered from allegedly disabling headaches:
[T]he ALJ cited the absence of evidence that Plaintiff canceled appointments . . . as evidence that her headaches must not be disabling. Although a claimant can support her claim that her disability will cause frequent absenteeism by presenting evidence of missed appointments, a claimant's regular attendance at medical appointments says very little about her ability to work during her appointments. Indeed, it would seem that a person suffering from debilitating headaches would have a strong interests in attending appointments and seeking relief rather than missing appointments.Virden v. Colvin, Case No. 14-cv-1219, 2015 WL 5598810, at *11 (C.D. Ill. Sept. 22, 2015) (citations omitted).
The Virden decision, however, is inapposite to this case. Here, the ALJ did not rely on this observation to suggest that the plaintiff's impairments were less severe than alleged just because he did not routinely cancel or miss appointments due to his symptoms. Here, the ALJ reasonably considered the plaintiff's active engagement in his own medical treatment as evidence that he retained more of an ability to focus and concentrate than his subjective statements or testimony suggested. See, e.g., Debra D. v. Comm'r of Soc. Sec., No. 2:22-CV-0086-TOR, 2022 WL 16857321, at *6 (E.D. Wash. Nov. 10, 2022) (finding reasonable an ALJ's determination that treatment notes indicating that the plaintiff had good participation in treatment and did not miss or cancel appointments due to mental symptoms conflicted with the plaintiff's subjective allegation that she was unable to sustain focus).
Moreover, even if we were to agree that this single comment by the ALJ constituted error, it is not enough for the plaintiff to simply point out an error. Instead, the burden is on the plaintiff to show that the alleged error would have an effect on the outcome of the ALJ's decision. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Perkins v. Barnhart, 79 Fed. App'x 512, 515 (3d Cir. 2003). The plaintiff has failed to meet this burden. Indeed, given the remainder of the evidence considered by the ALJ in evaluating the plaintiff's symptoms and the reasoning articulated in his decision, it is clear that eliminating this single, particular factual finding by the ALJ would have had no effect on the outcome of his broader analysis of the issue.
In his brief, the plaintiff identifies this purported error, but he fails to articulate any prejudice whatsoever that resulted from it. (See Doc. 14, at 9-10.)
Although Withers quibbles with the outcome of the ALJ's analysis of the evidence of record, it is clear that the ALJ properly evaluated the claimant's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding the claimant's subjective complaints of pain and other symptoms, the evidence as a whole did not support physical or mental limitations in excess of those set forth in the ALJ's RFC determination. While this same evidence might have also reasonably supported the adoption of substantially greater limitations, it did not compel such a finding.
Accordingly, we find the ALJ's evaluation of the subjective evidence of the plaintiff's symptoms is supported by substantial evidence and was reached based upon a correct application of the relevant law.
III. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Withers was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, it is recommended that the decision of the Commissioner of Social Security be AFFIRMED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 27, 2023. 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.