Opinion
Civil Action 3:22-CV-00883
10-05-2023
TERRY LINN BERKLEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK Chief United States Magistrate Judge
Plaintiff Terry Linn Berkley (“Berkley”) brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act. (Doc. 1). This matter has been referred to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. For the following reasons, it is respectfully recommended that the Commissioner's decision be AFFIRMED.
I. Background and Procedural History
On April 14, 2019, Berkley protectively filed an application under Title II for disability insurance benefits, alleging disability beginning February 7, 2019. (Doc. 8-5, at 2). The Social Security Administration initially denied the application on June 18, 2019, and upon reconsideration on November 26, 2019, prompting Berkley's request for a hearing, which Administrative Law Judge (“ALJ”) Sharon Zanatto held on July 7, 2020. (Doc. 8-3, at 31). In a written decision dated September 2, 2020, the ALJ Zanatto determined that Berkley “has not been under a disability, as defined in the Social Security Act, from February 7, 2019, through [September 2, 2020],” and, therefore, is not entitled to benefits under Title II. (Doc. 8-3, at 40). The Appeals Council granted Berkley's request for review and, on September 5, 2019, vacated ALJ Zanatto's decision and remanded this case back to a different ALJ for resolution of the following issue:
The Administrative Law Judge addressed only a portion of a relevant medical opinion. The [ALJ] found the opinion from consultative examiner Ahmed Kneifati, M.D., partially persuasive since medical records support greater postural limitations than found by Dr. Kneifati (Decision, page 9). Dr. Kneifati concluded, in pertinent part, the claimant can occasionally lift and carry no more than ten pounds; stand for three hours and walk up for two hours in an eight-hour workday, and sit for four hours in an eight-hour workday. Additionally, due to rheumatoid arthritis and asthma, the claimant would be precluded from exposure to dust, odors, fumes, and pulmonary irritants, and she could be occasionally exposed to hazards, humidity, wetness, and temperature extremes (Exhibit 7F). The [ALJ] did not assess the persuasiveness of the sitting limitation or provide rationale to explain why this limitation was omitted from the claimant's residual functional capacity. This is problematic, since Social Security Ruling 96-9p states an inability to sit for a total of six hours in an eight-hour workday erodes the sedentary occupational base. The [ALJ] also did not explain why the environmental limitations, including never being around dust, odors, fumes, and pulmonary irritants, were omitted. This is problematic, since Social Security Ruling 85-15 states that when an individual can tolerate very little dust, etc., the impact on the ability to work would be considerable since very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions. Per Social Security Ruling 96-8p, when a medical source opinion and the residual functional capacity conflict, the adjudicator must provide rationale for not adopting the medical source opinion. Further consideration of Dr. Kneifati's opinion, especially his opined sitting and environmental limitations, is necessary.(Doc. 8-3, at 48-49).
The Appeals Council directed that upon remand, the ALJ must do the following:
• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). in so doing, evaluate the medical source opinion(s) pursuant to the provisions of 20 CFR 404.1520c. As appropriate, the [ALJ]
may request the medical source provide additional evidence and/or further clarification of the opinion (20 CFR 404.1520b). The [ALJ] may enlist the aid and cooperation of the claimant's representative in developing evidence from the claimant's medical source.
• Give further consideration to whether the claimant can perform past relevant work (20 CFR 404.1560(a)-(b)). If warranted, obtain vocational expert evidence to assist in evaluating whether the claimant can perform past relevant work.
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to determine whether the claimant has acquired any skills that are transferable with very little, if any, vocational adjustment to other occupations under the guidelines in Social Security Ruling 82-41. The hypothetical questions should reflect the specific capacity/limitations established by the records as a whole. The [ALJ] will ask the vocational expert to identify examples of such appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the [ALJ] will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).(Doc. 8-3, at 49).
On June 17, 2021, ALJ Sharon Zanatto held a telephonic hearing in which Berkley claimed disability since February 7, 2019. (Doc. 8-2, at 16). In a written decision dated November 1, 2021, the ALJ determined that Berkley “has not been under a disability, as defined in the Social Security Act, from February 7, 2019, through the date of this decision,” and therefore is not entitled to benefits under Title II. (Doc. 8-2, at 27). On April 7, 2022, the Appeals Council denied Berkley's request for review. (Doc. 8-2, at 2).
On June 3, 2022, Berkley commenced the instant action. (Doc. 1). The Commissioner responded on August 10, 2021, providing the requisite transcripts from Berkley's disability proceedings. (Doc. 7; Doc. 8). The parties then filed their respective briefs, with Berkley raising two bases for reversal or remand. (Doc. 11; Doc. 12; Doc. 13).
II. Standards of Review
To receive benefits under Title II of the Social Security Act, 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); 20 C.F.R. § 404.1509. 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 significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive Title II benefits, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(a); 20 C.F.R. § 404.131. To establish an entitlement to disability insurance benefits under Title II, the claimant must establish that he or she suffered from a disability on or before the date on which they are last insured.
A “physical or mental impairment” is defined as an impairment resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
A. Administrative Review
The “Social Security Administration, working through ALJs, decides whether a claimant is disabled by following a now familiar five-step analysis.” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 200-01 (3d Cir. 2019). The “burden of proof is on the claimant at all steps except step five, where the burden is on the Commissioner of Social Security.” Hess, 931 F.3d at 201; see 20 C.F.R. § 404.1512(a)(1). Thus, if the claimant establishes an inability to do past relevant work at step four, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. § 404.1512(a)(1).
B. Judicial Review
The Court's review of a determination denying an application for Title II benefits is limited “to considering whether the factual findings are supported by substantial evidence.” Katz v. Comm'r Soc. Sec., No. 19-1268, 2019 WL 6998150, at *1 (3d Cir. Dec. 20, 2019). 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) (internal quotation marks omitted). The quantum of proof 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 if the ALJ ignores countervailing evidence or fails to resolve a conflict created by such evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 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).
The question before the Court, therefore, is not whether Berkley is disabled, but whether the Commissioner's determination that Berkley 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.”); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts.”); see alsoWright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary). “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). If “the ALJ's findings of fact . . . are supported by substantial evidence in the record,” the Court is bound by those findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
III. The ALJ's Decision
In her written decision, the ALJ determined that Berkley “has not been under a disability, as defined in the Social Security Act, from February 7, 2019, through the date of this decision.” (Doc. 8-2, at 27). The ALJ reached this conclusion after proceeding through the five-step sequential analysis provided in 20 C.F.R. § 404.1520(a)(4). At the onset, the ALJ determined that Berkley meets the insured status requirements of the Social Security Act through September 30, 2024. (Doc. 8-2, at 18).
A. Step One
At step one of the five-step analysis, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in substantial gainful activity, the claimant is not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is defined as work activity requiring significant physical or mental activity and resulting in pay or profit. 20 C.F.R. § 404.1572. The ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574(a)(2). Here, the ALJ determined that Berkley has not engaged in substantial gainful activity since February 7, 2019. (Doc. 8-2, at 18).
B. Step Two
At step two, the ALJ must determine whether the claimant has a medically determinable impairment-or a combination of impairments-that is severe and meets the 12-month duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an impairment or combination of impairments that significantly limits the claimant's “physical or mental ability to do basic work activities,” the ALJ will find that the claimant does not have a severe impairment and is therefore not disabled. 20 C.F.R. §§ 404.1520(c). If, however, a claimant establishes a severe impairment or combination of impairments, the ALJ proceeds to consider step three. Here, the ALJ found that Berkley had the following medically determinable severe impairments: rheumatoid arthritis (“RA”), osteoarthritis of the knees, left shoulder, and right hand, and obesity. (Doc. 8-2, at 19). The ALJ also found that the medical evidence of record established the existence of the following medically determinable non-severe impairments: mild intermittent asthma, allergic rhinitis, migraine headaches, low back pain, and a history of carpal tunnel syndrome, status post release surgery. (Doc. 8-2, at 19).
C. Step Three
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in the version of 20 C.F.R. § pt. 404, Subpt. p, App. 1 that was in effect on the date of the ALJ's decision. 20 C.F.R. § 404.1520(a)(4)(iii). The sections in this appendix are commonly referred to as “listings.” If the ALJ determines that the claimant's impairment or impairments meet a listing, then the claimant is considered disabled, otherwise, the ALJ must proceed to and analyze the fourth step of the sequential analysis. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that none of Berkley's impairments, considered individually or in combination, meet or equal the severity of a listed impairment. (Doc. 8-2, at 20-21). The ALJ considered the following listings: 1.18 (Abnormality of a major joint(s) in any extremity) and 14.09 (Inflammatory arthritis). (Doc. 12-2, at 21).
D. Residual Functional Capacity
Between steps three and four, the ALJ evaluates the claimant's residual functional capacity (“RFC”), crafted upon consideration of all the evidence presented. At this intermediate step, the ALJ considers all claimant's symptoms and “the extent to which [they] can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a). This involves a two-step inquiry according to which the ALJ must (1) determine whether an underlying medically determinable mental impairment or impairments could reasonably be expected to produce the claimant's symptoms; and, if so, (2) evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. See 20 C.F.R. § 404.1529(b)-(c).
Here, Berkley alleged disability due to chronic joint pain, which causes the following symptoms: pain and swelling of her right knee with the need to elevate her leg; stiffness with the need to get up and walk every 30-45 minutes; difficulty climbing stairs and fatigue; right hand pain with difficulty with buttons; and difficulty lifting, squatting, bending, standing, reaching, walking, kneeling, using her hands, and completing tasks. (Doc. 8-2, at 21). The ALJ found that while Berkley's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Berkley's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Doc. 8-2, at 21). After weighing and considering the evidence, the ALJ determined that Berkley retained the RFC to perform “sedentary work” as defined in 20 C.F.R. § 404.1567(a), except that:
[Berkley] is limited to frequent pushing/pulling with her upper extremities, occasional operation of foot controls with the lower extremities, to frequent reaching, handing, fingering, feeling; cannot crouch, kneel, crawl, climb ladders, ropes, scaffolds, and can occasionally balance and climb ramps and stairs.(Doc. 8-2, at 20).
E. Step Four
Step four requires the ALJ to determine whether the claimant had, during the relevant period, the RFC to perform the requirements of his or her past relevant work regardless of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is work that the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b). The ALJ considers whether the claimant retains the capacity to perform the particular functional demands and job duties of the past relevant work, either as the claimant actually performed it or as ordinarily required by employers throughout the national economy. Garibay v. Comm'r Of Soc. Sec., 336 Fed.Appx. 152, 158 (3d Cir. 2009) (quoting SSR 82-6). “If the claimant can perform his [or her] past relevant work despite his limitations, he [or she] is not disabled.” Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)). Here, based on testimony adduced from a vocational expert (“VE”) at Berkley's administrative hearing, the ALJ determined that Berkley was capable of performing her past relevant work as a loan review analyst. (Doc. 8-2, at 27). Accordingly, the ALJ determined that Berkley is not disabled and denied her application for benefits. (Doc. 8-2, at 27).
IV. Discussion
On appeal, Berkley advances two bases to argue that the decision of the ALJ is not supported by substantial evidence. (Doc. 11). First, Berkley argues that the ALJ failed to properly evaluate the medical opinions of Ahmed Kneifati, MD (“Dr. Kneifati”), and Grant Louie, MD (“Dr. Louie”), in assessing her RFC. (Doc. 11, at 10-14). Second, Berkley argues that the hypothetical question to the VE does not provide substantial evidence in support of the ALJ's determination that Berkley could perform work that exists in significant numbers in the national economy. (Doc. 11, at 14-15). In response, the Commissioner maintains that substantial evidence supports the ALJ's decision. (Doc. 12).
A. Substantial evidence supports the ALJ's RFC determination.
Berkely contends that the ALJ's RFC finding is not supported by the evidence of record because she failed to properly consider the supportability of the opinions of Dr. Kneifati and Dr. Louie. (Doc. 11, at 12). Berkely argues that the ALJ failed to properly consider both the consistency and supportability of the medical opinions and erroneously “interpreted normal findings without any medical opinion or expertise to discount these two opinions.” (Doc. 11, at 14). in opposition, the Commissioner asserts that the ALJ addressed the medical opinions at length, determined the extent of which each was persuasive, and did not substitute her own lay opinion for that of Berkley's doctors. (Doc. 12, at 14). The Commissioner argues the Court should affirm the ALJ's unfavorable decision because “a reasonable mind could find that the overall record evidence was inconsistent with the opinions of Drs. Louie and Kneifati and did not show medical conditions that would prevent [Berkley] from performing a range of sedentary work - the lowest level of exertion available under the regulations.” (Doc. 12, at 20).
Assessing a claimant's RFC falls within the purview of the ALJ. 20 C.F.R. § 404.1546(c); SSR 96-8p, 1996 WL 374184 (S.S.A. July 2, 1996). “ ‘[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) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 (3d Cir. 1999)). Specifically, one's RFC reflects the most that an individual can still do, despite his or her limitations, and is used at steps four and five to evaluate the claimant's case. 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8P, 1996 WL 374184 at *2. In crafting the RFC, the ALJ must consider all the evidence of record, including medical signs and laboratory findings, daily activities, medical source statements, and a claimant's medical history. SSR 96-8p, 1996 WL 374184, at *5; see also Mullin v. Apfel, 79 F.Supp.2d 544, 548 (E.D. Pa. 2000). An ALJ's RFC findings, however, must be supported by medical evidence. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). “[O]nce the ALJ has made this [RFC] determination, [a court's] review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence.” Black v. Berryhill, No. 16-1768, 2018 WL 4189661 at *3 (M.D. Pa. Apr. 13, 2018).
In Cotter v. Harris, the Circuit Court clarified that the ALJ must not only state the evidence considered which supports the result but also indicate what evidence was rejected: “Since it is apparent that the ALJ cannot reject evidence for no reason or the wrong reason, an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper.” 642 F.2d 700, 704, 706-707 (3d Cir. 1981). However, the ALJ need not undertake an exhaustive discussion of all the evidence. See, e.g., Knepp, 204 F.3d at 83. “There is no requirement that the ALJ discuss in her opinion every tidbit of evidence included in the record.” Hur v. Barnhart, 94 Fed.Appx. 130, 133 (3d Cir. 2004). In making the RFC determination, “the ALJ must consider all evidence before him.” Burnett, 220 F.3d at 121 (citations omitted); 20 C.F.R. § 404.1527(c); see also Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (“The Secretary must ‘explicitly' weigh all relevant, probative and available evidence.... The Secretary may properly accept some parts of the medical evidence and reject other parts, but she must consider all the evidence and give some reason for discounting the evidence she rejects.”).
As this matter involves a claim filed after March 27, 2017, the new regulatory framework governing the evaluation of medical opinions applies to the ALJ's evaluation of the medical opinions in the record. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed.Reg. 15,132-01 (Mar. 27, 2017)); see also 82 Fed.Reg. 15263 (March 27, 2017); 82 Fed.Reg. 16869 (corrective notice) (explaining that SSR 96-2p and 96- 5p do not apply to newly filed or pending claims after March 27, 2017). Under the new regulations, rather than assigning weight to medical opinions, the Commissioner will articulate “how persuasive” he or she finds the medical opinions. 20 C.F.R. § 404.1520c(b). The Commissioner's consideration of medical opinions is guided by the following factors: supportability; consistency; relationship with the claimant (including the length of the treatment relationship, the frequency of examinations, the purpose of the treatment relationship, the extent of the treatment relationship, and the examining relationship); specialization of the medical source; and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c). The most important of these factors is the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2).
The ALJ must explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ may, but is not required to, explain his or her consideration of the other factors, but if there are two equally persuasive medical opinions about the same issue that are not exactly the same, then the ALJ must explain how he or she considered the other factors. 20 C.F.R. § 404.1520c(b)(3). To facilitate judicial review, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests” and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Cotter, 642 F.2d at 704, 706-707. An ALJ need not undertake an exhaustive discussion of all the evidence or “use particular language or adhere to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004); see Hur, 94 Fed.Appx. at 133 (“There is no requirement that the ALJ discuss in his opinion every tidbit of evidence included in the record.”). However, an ALJ must ensure “sufficient development of the record and explanation of findings to permit meaningful review.” Jones, 364 F.3d at 505; see, e.g., Rivera v. Comm'r of Soc. Sec., 164 Fed.Appx. 260, 262 (3d Cir. 2006) (“The only requirement is that, reading the ALJ's decision as a whole, there must be sufficient development of the record and explanation of findings.”).
Here, the ALJ adequately considered Berkley's medically determinable limitations in her RFC determination, explaining:
I find that the claimant's allegations regarding the limiting effects of her alleged conditions are not supported by the record. While the claimant's history of RA, osteoarthritis, and weight gain limits the claimant to work within the sedentary
exertional level with additional non-exertional limitations, the record as a whole does not support a finding of disability in this case. The record indicates that the claimant presented with no sensory deficit, 5/5 strength in both upper and lower extremities, no evident muscle atrophy, intact hand and finger dexterity, intact grip strength, and was able to zip, button, and tie laces at her November 2019 consultative examination (Exhibit 7F). On December 5, 2019, the claimant was given a cane for “protected weight bearing” (Exhibit 10F). However, on October 28, 2020, the claimant reported that she was using a cane “at times” and her physical exam within normal limits. The claimant also reported that her fatigue varies with her activities and that it is not constant (Exhibit 12F). The record indicates that the claimant had improvement in her shoulder complaints with physical therapy. The claimant's physical therapy treatment note dated May 7, 2019, indicates that the claimant reported that her shoulder was feeling fine with no pain that day and none since her last physical therapy session. She also denied any soreness following physical therapy (Exhibit 8F). The claimant was discharged from physical therapy on May 28, 2019, as she reached maximum benefit. It was noted that she was doing well overall with significant improvement in range of motion and strength and no issue with pain (Exhibit 14F). In February 2019, Nurse Goetz noted the claimant's right hand complaints. However, the claimant was able to make a tight, closed fist and had 5/5 strength throughout. conservative treatment and recommended that she continue to stay active and use her right hand. She noted that the claimant likes to knit and advised that would be good exercise for her hands (Exhibit 2F). The claimant's weight has remained overall stable (Exhibits 2F, 7F, and 16F). While the claimant's bilateral knee symptoms are noted to intermittent though with evidence of effusions at times requiring aspiration and reported worse with standing, walking, squatting, and climbing, which are reduced or eliminated given the above residual functional capacity, no surgery has been indicated. The record also indicates that the claimant had overall improvement in terms of her RA with treatment and further improvement with the addition of Humira to her treatment regimen since November 2019. Dr. Louie advised that she was in “clinical remission” in February 2020 and with his subsequent treatment notes indicating no major flares while on Humira and with no significant adverse effects. At her most recent rheumatology visit of record, she presented with normal range of motion of major appendicular joints and no active synovitis (Exhibit 16F). Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by the medical evidence of record.(Doc. 8-2, at 24-26).
First, the ALJ considered Berkley's subjective complaints, including difficulty lifting, squatting, bending, standing, reaching, walking, kneeling, using her hands, and completing tasks. (Doc. 8-2, at 21). The ALJ concluded that while Berkley's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her “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 ” (Doc. 8-2, at 21). Then, the ALJ considered the objective medical record, including examination notes from February 11, 2019, to January 25, 2021, completed by the following medical sources: Nicole Confer, PA-C, Joy Goetz, CRNP, Dr. Louie, Michael Day, MD, Dr. Kneifati, and Craig Miller, MD. (Doc. 8-2, at 21-23).
Next, the ALJ considered the medical opinions and prior administrative medical findings of record, noting that she “cannot defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s), including those from medical sources.” (Doc. 8-2, at 23). Specifically, the ALJ reviewed the medical opinions provided by Maura Smith-Mitsky, MD (“Dr. Smith-Mitsky”), Dr. Kneifati, David Ferner, DO (“Dr. Ferner”), and Dr. Louie. (Doc. 8-2, at 23-25).
The undersigned finds that the ALJ's evaluation of Dr. Kneifati's and Dr. Louie's opinions comported with the new regulatory scheme and is supported by substantial evidence. (Doc. 8-2, at 24-25). “Nothing in the Social Security Act or governing regulations requires the ALJ to obtain matching ‘opinion' evidence in order to fashion a claimant's RFC.” Myers v. Berryhill, 373 F.Supp.3d 528, 538 (M.D. Pa. 2019). “[T]he ALJ is responsible for making an RFC determination . . . and he is not required to seek a separate expert medical opinion.” Mays v. Barnhart, 78 Fed.Appx. 808, 813 (3d Cir. 2003); see Butler v. Colvin, 3:15-CV-1923, 2016 WL 2756268, at *13 n.6 (M.D. Pa. May 12, 2016) (rejecting the argument that a medical opinion is required to craft an RFC). “There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). An ALJ “is not precluded from reaching RFC determinations without outside medical expert review of each fact incorporated into the decision.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011). The ALJ is expressly not required to “seek outside expert assistance.” Chandler, 667 F.3d at 362 (citing 20 C.F.R. §§ 404.1546(c), 404.1527(d), and SSR 96-5p).
Relevant here, Dr. Kneifati conducted an internal medicine examination and medical source statement of ability to do work-related activities on November 5, 2019. (Doc. 8-7, at 152-161). Dr. Kneifati diagnosed Berkley with asthma, head injury, rheumatoid arthritis, generalized joint pain, and pain in the right knee with effusion, lesser degree left knee. (Doc. 8-7, at 155). Dr. Kneifati opined that Berkley can lift/carry up to 10 pounds occasionally; sit for 4 hours, stand for 3 hours, and walk for 2 hours during an 8-hour workday; does not require the use of a cane to ambulate; frequently reach, handle, finger, feel, and push/pull with both hands; operate foot controls occasionally with her right hand and frequently with her left hand; occasionally climb, balance, stoop, kneel, and crouch; and frequently crawl. (Doc. 8-7, at 156-59). Dr. Kneifati noted that none of Berkley's impairments affect her hearing or vision. (Doc. 8-7, at 159). Dr. Kneifati also opined that Berkley can continuously tolerate exposure to vibrations and very loud noise; occasionally tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity and wetness, extreme cold, and extreme heat; never tolerate exposure to dust, odors, fumes, and pulmonary irritants. (Doc. 8-7, at 160). Lastly, Dr. Kneifati opined that Berkely can shop; travel without a companion for assistance; ambulate without using a wheelchair, walker, or 2 canes or crutches; walk a block at a reasonable pace on rough or uneven surfaces; use standard public transportation; climb a few steps at a reasonable pace with the use of a single hand rail; prepare a simple meal and feed herself; case for her personal hygiene; and sort, handle, or use papers/files. (Doc. 8-7, at 161).
The ALJ found Dr. Kneifati's opinion “partially persuasive.” (Doc. 8-2, at 24). In evaluating his opinion, the ALJ determined its persuasiveness by considering both the consistency and supportability of the opinion. Regarding consistency, the ALJ explained:
[Dr. Kneifati's] opinion is partially persuasive as to [Berkley]'s overall limitation to sedentary with the ability to perform frequent manipulative activities bilaterally and no ambulatory limitations. However, Dr. Kneifati's opinion as to her abilities and limitations in terms of setting, standing, and walking, postural activities, and environmental limitations is not consistent with the objective medical evidence of record. While [Berkley]'s clinical history of RA and bilateral knee dysfunction results in greater limitations in her ability to stand and walk during a workday, there is no objective evidence, including her physical examination findings, to support his opinion as to her sitting limitation, and no evidence of any respiratory exacerbations or symptoms aside from her reaction to an environmental allergen while on vacation in the Spring of 2019 to support the above noted limitations.(Doc. 8-2, at 24).
Additionally, the ALJ articulated why the opinion was not supported by the record, noting that Dr. Kneifati “provided limited support of his opinion other than noting ‘RA' and ‘asthma' but with no specific medical or clinical findings provided to support his assessment.” (Doc. 8-2, at 24). Therefore, the ALJ's evaluation of the medical opinion of Dr. Kneifati comported with the Social Security Regulations. 20 C.F.R. §§ 404.1520c(b)(2).
Additionally relevant to this action, Dr. Louie completed a medical source statement of ability to do work-related activities on June 22, 2020. (Doc. 8-7, at 296-97). Dr. Louie diagnosed Berkley with rheumatoid arthritis and osteoarthritis of the knees. (Doc. 8-7, at 296). Dr. Louie opined that Berkley could sit, stand, and walk for 2-4 hours in an 8-hour workday; occasionally lift/carry up to 10 pounds; frequently push/pull using upper extremities and never push/pull using lower extremities; frequently reach, handle, and feel in an 8-hour workday; and occasionally finger in an 8-hour workday. (Doc. 8-7, at 296). Dr. Louie opined that Berkley's experience of pain or other symptoms were occasionally severe enough to interfere with her attention and concentration needed to perform even simple work tasks, and that Louie would likely be absent from work for 4 days or more per month due to her impairment(s) and/or treatment(s). (Doc. 8-7, at 297). Lastly, Dr. Louie opined that Berkley must avoid vibrations and would require the following accommodations in an 8-hour workday: unscheduled breaks, walking breaks, and reclining breaks every 30 minutes for a 10-minute duration; and constant 90-degree leg elevation when seated. (Doc. 8-7, at 297).
On May 24, 2021, Dr. Louie completed another medical source statement of Berkley's functional abilities to do work-related activities. (Doc. 8-7, at 357-58). Dr. Louie again diagnosed Berkley with rheumatoid arthritis and osteoarthritis. (Doc. 8-7, at 357). Dr. Louie opined that Berkley could sit for 0-2 hours in an 8-hour workday; stand/walk for one hour in an 8-hour workday; frequently lift/carry up to 10 pounds; never push/pull using lower extremities; frequently reach, handle, and feel in an 8-hour workday; and occasionally finger in an eight-hour workday. (Doc. 8-2, at 357). Dr. Louie further opined that Berkley's experience of pain or other symptoms were never severe enough to interfere with her attention and concentration needed to perform even simple work tasks, and that Louie would likely be absent from work for 4 days or more per month due to her impairment(s) and/or treatment(s). (Doc. 8-7, at 358). Lastly, Dr. Louie opined that Berkley must avoid certain environmental conditions, including dust, vibrations, hazards (machinery, heights, etc.), and fumes (odors, chemicals, gases, etc.), and would require the following accommodations in an 8-hour workday: unscheduled breaks and walking breaks every 1-hour for a 10-minute duration; and 90-degree leg elevation when seated. (Doc. 8-7, at 358).
The ALJ found Dr. Louie's opinions “partially persuasive.” (Doc. 8-2, at 25). In evaluating his opinions, the ALJ determined its persuasiveness by considering both the consistency and supportability of the opinions. Regarding consistency, the ALJ explained:
These opinions are partially persuasive, as they indicate that [Berkley] has significant limitations in her exertional abilities with additional non-exertional limitations. However, Dr. Louie's opinions limited [Berkley] to less than fulltime work with excessive breaks and absences and manipulative limitations are not consistent with the objective medical evidence of record, including Dr. Louie's own exam findings and [Berkley]'s overall improvement with treatment and further improvement with the addition of Humira to her treatment regimen since November 2019 to the extent that he advised that she was in “clinical remission” in February 2020 and with his subsequent treatment notes indicating no major flares while on Humira and with no significant adverse effects (Exhibit 16F). His assessments are also not consistent with [Berkley]'s own testi[mony] that she generally does not lie down from the time she wakes until she goes to bed (Hearing Testimony).(Doc. 8-2, at 25).
Here, the ALJ properly considered the medical evidence of record and the relevant factors of supportability and consistency, and she expressly articulated her findings on the supportability and consistency of the opinions even if she failed to expressly use the term “supportability.” The term “consistency” concerns a comparison with “evidence from other medical sources and non-medical sources.” See 20 C.F.R. § 404.1520c(c)(2). In assessing Dr. Louie's opinions, the ALJ referenced and relied on Dr. Louie's own objective findings that same day, as well as the other objective findings discussed in the ALJ's decision. (Doc. 8-2, at 25). The term “supportability” on the other hand, concerns “the objective medical evidence and supporting explanations presented by a medical source to support his or her medical opinion [ ].” See 20 C.F.R. § 404.1520c(c)(1). Although couched in terms of whether that evidence from other medical sources were consistent with Dr. Louie's opinions, it is clear that the ALJ here considered the opinions' lack of supportability with evidence from the other objective medical findings and treatment evidence discussed in the ALJ's written decision. (Doc. 8-2, at 25). Thus, the undersigned finds the ALJ properly considered the required factor of supportability. See Shirley v. Comm'r of Soc. Sec., No. 3:21-CV-00455, 2022 WL 3083702, at *7 (M.D. Pa. Aug. 3, 2022) (findings ALJ properly considered factor of consistency, even where he failed to expressly use the term “consistency”).
Additionally, the ALJ articulated why the opinion was not supported by the record, noting that “the assessment form (the same form was completed on both dates) completed by Dr. Louie is deficient in that it requires the rater to assess limitations without allowing one to not find limitations for item numbers 3-5.” (Doc. 8-2, at 25). Check-box opinions are considered weak evidence at best. See Mason, 994 F.2d at 1065 (“Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best . . . where these so-called reports are unaccompanied by thorough written reports, their reliability is suspect.”); Smith v. Astrue, 359 Fed.Appx. 313, 316 (3d. Cir. 2009); Prokopick v. Comm'r of Soc. Sec., 272 Fed.Appx. 196, 198 (3d Cir. 2008); Long v. Colvin, Civ. No. 1:14-2192, 2016 WL 1320921, at *9 (M.D. Pa. Apr. 5, 2016); see also 20 C.F.R. § 404.1527(c)(3) (discussing supportability). This is especially true, where, as here, the check-box form contained little, if any, narrative explanation to support the limitations assessed, and where the check-boxes conflicted with Dr. Louie's own treatment notes, which the ALJ highlights. Therefore, the ALJ's evaluation of the medical opinions of Dr. Louie comported with the Social Security Regulations. 20 C.F.R. §§ 404.1520c(b)(2).
Berkely argues that the ALJ is conducting a lay reinterpretation of the record, claiming the ALJ “interpreted normal findings without any medical opinions or expertise to discount [Dr. Kneifati's and Dr. Louie's] opinions[.]” (Doc. 11, at 14). An ALJ is not conducting a lay interpretation of the record when she cites to objective medical evidence and finds that it conflicts with a medical opinion. In fact, the regulations require the ALJ to compare a medical opinion with “the objective medical evidence and supporting explanations presented by a medical source . . .” 20 C.F.R. § 404.1520c(c)(1). And findings from a mental status exam is objective medical evidence. Miller v. Comm'r of Soc. Sec., No. 20-cv-1088, 2022 WL 178590, at *19-20 (M.D. Pa. Jan. 18, 2022) (upholding ALJ's rejection of medical opinion evidence when mental state exams showed largely normal findings). Additionally, based on the undersigned's review of the record, the ALJ correctly pointed out that the medical opinions of Dr. Kneifati and Dr. Louie are inconsistent with their own physical examination findings, which the ALJ considered earlier in her opinion. (Doc. 8-2, at 22-25). Although Berkley alleges that the ALJ erred by “ignore[ing] the evidence supporting the limitations offered by Dr. Kneifati and Dr. Louie” (Doc. 11, at 14), the ALJ in fact performed a thorough evaluation of the persuasiveness of Dr. Kneifati's and Dr. Louie's medical opinions, noting that “there is no objective evidence, including her physical examination findings, to support [Dr. Kneifati's] opinion as to her sitting limitation, and no evidence of any respiratory exacerbations or symptoms . . . to support the above noted limitations.” (Doc. 8-2, at 24).
To the extent Berkley contends the AL J erroneously cherry-picked evidence to support her reasoning, the undersigned will not address this alleged error because Berkley failed to cite any specific examples or even evidence disregarded by the ALJ. (Doc. 11, at 14; Doc. 13, at 4); see Samsel v. Kjakazi, No. 4:21-CV-00962, 2022 WL 4120154, at *14 (M.D. Pa. Sept. 9, 2022) (declining to address plaintiff's argument that ALJ cherry-picked facts from medical record where plaintiff failed to cite specific examples).
With regard to Dr. Louie, the ALJ stated his opinions are not consistent with his own exam findings, Berkley's overall improvement with treatment, and Berkley's own testimony. (Doc. 8-2, at 25). Therefore, the undersigned finds that the ALJ did not substitute her own “lay opinion” for that of the medical sources.
The ALJ adequately explained the legal and factual basis for her determination, and based her conclusions on substantial evidence. It is the right and responsibility of the ALJ to make such assessments, and the Court finds that substantial evidence supports this determination. Sherman's argument simply asks the Court to re-weigh the evidence, which this Court cannot do. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (“In the process of reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute our own conclusions for those of the fact-finder.'”) (quoting Williams, 970 F.2d at 1182). Because the Court cannot re-weigh the evidence, the undersigned finds that substantial evidence supports the ALJ's RFC determination.
B. Substantial evidence supports the ALJ's step four decision.
Second, Berkley argues that “the hypothetical question posed to the VE did not convey all of the functional limitations estimated by Dr. Kneifati and Dr. Louie. Had the opinions of these physicians been properly credited, the VE testified that [Berkley] would be unemployable.” (Doc. 11, at 15). in opposition, the commissioner asserts that the ALJ was not obligated to include the limitations from Dr. Kneifati and Dr. Louie in her hypothetical questions to the VE because the ALJ did not find the proposed limitations to be supported by or consistent with the record. (Doc. 12, at 21). Thus, the commissioner argues that “the ALJ properly relied on the [VE]'s testimony in response to the hypothetical question that included all of [Berkley]'s credibly established limitations in the RFc finding.” (Doc. 12, at 21).
At step five of the sequential evaluation process, the ALJ considers the claimant's age, education, and work experience to determine whether the claimant can make the adjustment to other work by posing a hypothetical question(s) to the VE. Chrupcala v. Heckler, 829 F.2d 1269, 176 (3d Cir. 1987); see also Rutherford, 399 F.3d at 554; Ramirez v. Barnhart, 372 F.3d 546, 552-55 (3d Cir. 2004) (the ALJ need only include in the hypothetical questions impairments that are supported by the record). “A hypothetical question posed to the [VE] must reflect all of the claimant's impairments that are supported by the record; otherwise the question is deficient and the [VE]'s answer to it cannot be considered substantial evidence.” Chrupcala, 829 F.2d at 1276; see also Rutherford, 399 F.3d at 554; Ramirez, 372 F.3d at 552-55. The ALJ, however, is not required to submit to the [VE] every impairment alleged by a claimant. Rutherford, 399 F.3d at 554. “[S]uch references to ‘all impairments' encompass only those that are medically established.” Rutherford, 399 F.3d at 554. Thus, the question posed to the ALJ must accurately convey to the VE all of a claimant's credibly established limitations. Rutherford, 399 F.3d at 554 (quoting Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999)).
The ALJ was not required to include all of the limitations assessed by Dr. Kneifati and Dr. Louie. The ALJ was only required to include all of Berkley's credibly-established limitations that are supported by the record. See Rutherford, 399 F.3d at 554; Plummer, 186 F.3d at 431. Further, as discussed supra, the undersigned found that the ALJ properly assessed the opinions of Dr. Kneifati and Dr. Louie and determined that they were only partially persuasive. (Doc. 8-2, at 24-25). Therefore, the undersigned finds that the ALJ's hypothetical questions posited to the VE adequately set forth all of Berkley's credibly-established limitations.
V. Recommendation
For the foregoing reasons, it is respectfully recommended that the Commissioner's decision to deny Berkley's application for benefits be AFFIRMED, final judgment be issued in favor of the Commissioner, and the Clerk of Court CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 5, 2023 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.