Opinion
CIVIL 1:22-CV-31
02-09-2023
CHERYL CLEARY, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant
Brann, Chief Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Introduction
The Supreme Court has underscored for us the limited scope of our substantive review when considering Social Security appeals, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.--,----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)
(comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
Cheryl Cleary, a younger worker with a limited education, applied for disability benefits, alleging an onset of disability in 2015 due to a number of physical impairments, most notably a series of surgeries on her left foot. While the evidence reveals that Cleary experienced significant medical complications over time relating to her foot, this evidence also contains numerous notations suggesting that Cleary largely recovered from these foot impairments. Moreover, two state agency experts who considered her case concluded that Cleary retained the residual functional capacity to perform some work, and there is no compelling countervailing medical opinion suggesting that she was totally disabled. Therefore, following a hearing before an Administrative Law Judge (“ALJ”), the ALJ found that Cleary could perform a limited range of sedentary work and was not disabled.
Cleary now appeals this decision, arguing that the ALJ's assessment of the severity of her symptoms and evaluation of her residual functional capacity were flawed. However, after a review of the record, and mindful of the fact that substantial evidence “means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,'” Biestek, 139 S.Ct. at 1154, we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we recommend that the decision of the Commissioner be affirmed.
II. Statement of Facts and of the Case
On September 3, 2019, Cheryl Cleary filed a claim for disability benefits pursuant to Title II of the Social Security Act, alleging an onset of disability on April 15, 2015. (Tr. 16). This is Cleary's second disability application, an earlier application having been denied in April of 2015, the same month as the alleged date of onset in her current application. (Tr. 67). Cleary's last date insured under the Act was December 31, 2019. (Tr. 18). Therefore, this case presented a closed period claim spanning from April 2015 through December 31, 2019. In this application, Cleary alleged that she had become disabled due to the combined effects of the following severe impairments: morbid obesity, left foot impairment, and left upper extremity and shoulder impairment. (Tr. 18). Cleary was born in August of 1977 and was 42 years old at the time of the alleged onset of her disability, making her a younger worker under the Commissioner's regulations. (Tr. 27). She had a limited education and past employment as a threader and store laborer. (Id.)
Cleary's most immediate, pressing, and significant medical concerns related to her left foot. With respect to this condition, on January 13, 2015, Cleary was seen by the Lebanon Valley Foot and Ankle Center, complaining of chronic foot pain in her surgically repaired left foot. (Tr. 303). Upon examination, it was determined that Cleary might require additional surgery to address her discomfort. (Id.) Cleary met again with medical staff on July 31, 2015 to discuss this foot surgery. (Tr. 306). At that time Cleary elected to defer surgery for several months until October 2015. (Id.)
After undergoing this procedure, Cleary was seen post-operatively on October 9, 2015. At that time it was noted that she was doing well and everything looked good in terms of her postoperative recovery. (Tr. 307). During a follow up appointment on October 23, 2015, physicians observed that Cleary was doing well and advised her that she should wear a surgical shoe for another week and then start ambulating as tolerated. (Tr. 308). On December 4, 2015, Cleary's caregivers noted that everything looked good with respect to this surgical foot repair while observing that she was experiencing some stiffness on range of motion. (Tr. 309). On February 4, 2016, Cleary had another post-operative clinical encounter at the foot and ankle center. At that time, she reported that she was doing well, was happy with the results of her surgery, and was going to get a regular pair of shoes. (Tr. 315).
However, approximately eight months later, in October of 2016, Cleary presented at the foot and ankle clinic complaining of renewed foot pain. At that time it was determined that she might benefit from a surgical correction involving the removal of some hardware previously installed in her foot. She underwent this procedure (Tr. 323-26), and by November 23, 2016 was advised to “get back into her regular shoes.” (Tr. 311).
Seven months then passed before Cleary was seen again by the Lebanon Valley Foot and Ankle Center in July of 2017, complaining of left foot pain, which was diagnosed as gout. (Tr. 310). X-rays taken at that time revealed post-surgical changes in Cleary's left foot but disclosed no acute fracture or dislocation. (Tr. 32122). However, by October 20, 2017, Cleary was reporting renewed pain in her left foot and was assessed as positive for gait problems and joint swelling. (Tr. 423).
When these symptoms persisted through mid-2018, Cleary was seen by an orthopedic surgeon, Christian Hall, M.D., who initially treated her with injections in her third and fourth toes. (Tr. 715). When those injections provided no relief, Dr. Hall recommended surgical correction of her third and fourth hammertoes and plantar plate tears in July 2018. (Tr. 716). Cleary agreed to this surgery but requested that it be performed in September since she was “busy at home.” (Id.) Her surgery was completed without complication on September 6, 2018. (Tr. 695-97). During an October 17, 2018 follow-up appointment Cleary reported that, while she was not weight bearing, her pain was controlled with medication and she was not having any pain. (Tr. 510).
In February of 2019, Cleary was seen once again by Dr. Hall, who discussed further toe surgery with the plaintiff. Cleary elected to undergo surgery in March of 2019, because she had summer plans. (Tr. 507). At this time Cleary walked with a normal gait. (Id.) Cleary underwent this additional round of foot surgery on March 19, 2019. (Tr. 503). In preparation for that surgery, Cleary was seen on March 1, 2019, and it was noted once again that she walked with a normal gait. (Tr. 498). Post-operative notes from April of 2019 indicated a normal course of recovery from this latest foot surgery for Cleary. (Tr. 491-96). By August of 2019, Dr. Hall reported that Cleary was weightbearing following her surgery, had no significant pain at the treatment site, and was transitioning to normal footwear. (Tr. 489-90). Near the end of the relevant time frame in December of 2019, Cleary complained of foot pain. Dr. Hall recommended toe straps, possibly a metatarsal bar for her fourth and fifth toe dysfunction, and encouraged Cleary to lose weight. (Tr. 486).
While Dr. Hall's treatment notes reflected this on-going care for Cleary's chronic foot problems, other medical treatment records through 2019 and up to the end of this closed period of alleged disability did not consistently support Cleary's claim of disabling foot pain which severely limited her mobility. For example, on January 16, 2019, April 15, 2019, July 17, 2019, December 4, 2019, and January 9, 2020, caregivers reported that Cleary exhibited a normal gait. (Tr. 465, 468, 470, 473, 476).
Thus, with respect to her left foot impairments, the clinical record disclosed that Cleary received repeated treatments, including several surgical procedures, during the relevant time frame. However, in each instance treatment records revealed that these procedures addressed Cleary's concerns and she enjoyed a normal recovery from these procedures. Further, Cleary's treatment records were replete with references to the fact that she exhibited a normal gait.
As for Cleary's left shoulder impairment, the medical record is meager and much of it post-dates her date last insured. Thus, on January 9, 2020, Cleary was seen at Penn State Health complaining of left shoulder pain. At that time Cleary indicated that she was unsure of when her shoulder discomfort began. (Tr. 465). On January 13, 2020, a radiological examination of Cleary's left shoulder revealed some mild irregularities, and a moderate degree osteoarthritis, but was otherwise unremarkable. (Tr. 463). An examination conducted on January 21, 2020, showed some limitations on Cleary's range of motion, but indicated that she retained significant strength. (Tr. 482-83).
Cast against this clinical history, two state agency medical experts opined that Cleary retained the residual functional capacity to perform some work. On February 26, 2020, Dr. Gurcharan Singh opined that Cleary retained the ability to perform light work notwithstanding her impairments. (Tr. 67-74). Upon reconsideration, on October 9, 2020, a second state agency expert, Dr. Ruth Arnold, also concluded that Cleary could perform light work, albeit with a number of additional postural limitations. (Tr. 76-87). Notably, while the medical records contained some entries regarding transitory post-operative limitations, as well as a recommendation that Cleary refrain from heavy labor, there were no countervailing medical opinions assessing her residual functional capacity and finding that Cleary was disabled due to her impairments.
It is against this medical backdrop that the ALJ held a hearing on Cleary's claim on February 4, 2021. (Tr. 34-62). At the hearing, Cleary and a Vocational Expert testified. (Id.) In her testimony Cleary complained of constant foot pain and stated that she used a cane to ambulate. (Tr. 41, 49). Despite these impairments, Cleary acknowledged performing some child care responsibilities, and indicated that she could walk a block and stand for thirty minutes. (Tr. 50-52). Following this hearing, on April 9, 2021, the ALJ issued a decision denying Cleary's application for benefits. (Tr. 13-29).
In that decision, the ALJ first concluded that Cleary met the insured status requirements under the Act through December 31, 2019 and had not engaged in any substantial gainful activity since her alleged onset date of April 15, 2015, thus defining the closed period of this disability claim. (Tr. 18). At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Cleary's morbid obesity, left foot impairment, and left upper extremity and shoulder impairment were sever impairments. (Tr. 18).
At Step 3, the ALJ determined that Cleary did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 20). Between Steps 3 and 4, the ALJ fashioned a residual functional capacity (“RFC”), considering Cleary's limitations from her impairments stating that:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with the following limitations: routine, repetitive tasks. For her left lower extremity, she can push and pull occasionally. She can occasionally climb ramps and stairs. She can occasionally balance, stoop, kneel, crouch, and crawl. Frequent use of non-dominant left upper extremity for all functions except reaching overhead which is occasional. No concentrated exposure to extreme cold or vibration. No ladders, ropes, or scaffolding. No other hazards such as heights or machinery.(Tr. 20-21).
In making the RFC determination, the ALJ considered the clinical evidence, the medical opinions, and the testimony of Cleary regarding her impairments. (Tr. 21-27). In this regard, the ALJ outlined Cleary's treatment history and acknowledged that she had undergone significant care for her left foot impairments. Nonetheless, the ALJ found that Cleary had enjoyed a normal recovery from these procedures, and observed that her caregivers frequently documented her normal gait. (Id.) The ALJ also correctly noted that Cleary's complaints regarding her left shoulder pain were intermittent and sporadic, and the most significant of those complaints arose after her date last insured in 2020. (Tr. 23-25).
The ALJ then evaluated the medical opinion evidence in this case, which consistently found that Cleary could perform some work, stating as follows:
The state agency medical consultant at the initial level found in February 2020 that the claimant could perform light work with no additional limitations. (1A). This is persuasive, as it suggests that the claimant is not substantially limited. However, it is not as persuasive as the reconsideration level medical consultant, whose findings are more supported by the records reviewed for the reasons discussed regarding that consultant. The initial level consultant referenced the claimant's normal gait at December 2019 and January 2020 exams to support the findings. (4F/9, 11). The consultant also referenced the claimant's mild pain with left shoulder active range of motion, but no discomfort with passive range of motion at the January 2020 exam. (4F/9). These relatively normal exam findings as well as other relatively normal exam findings in the records reviewed by this consultant provide some support for the findings. (e.g., 1F/8, 9, 13, 14; 2F/37, 87, 98; 4F/9, 11, 13, 19; 5F/9, 12, 30, 57). However, for the reasons discussed regarding the reconsideration level consultant, the evidence better supports the reconsideration level consultant findings. In addition, subsequent evidence is generally consistent with the lack of substantial deficits, but is more consistent with the reconsideration level consultant's findings
for reasons discussed regarding that consultant's findings. (e.g., 7F/4; 10F-13F).
The state agency medical consultant at the reconsideration level found in October 2020 that the claimant could perform light work, except stand and/or walk for 2 hours in an 8-hour workday and occasionally push/pull with the left lower extremity. (3A). The consultant also found that the claimant has the following limitations: occasionally climb ramps and stairs, occasionally balance and crawl, frequently reach with the left upper extremity, avoid concentrated exposure to extreme cold and vibration, and hazards, and never climb ladders, ropes, or scaffolds. This is persuasive and more persuasive than the initial level consultant's findings. This consultant explained the findings, including referencing some exam findings just before and just after the date last insured. (4F/9, 11). This consultant had the opportunity to review most of the evidence in the file from during and shortly after the date last insured. The evidence in the file at the time of the consultant's review supports the findings. The claimant did have a number of foot surgeries before and after the alleged onset date, but she generally healed relatively quickly and there was a lack of abnormal gait findings or other significantly abnormal foot findings on a consistent or extended basis. (e.g., 1F/2, 6, 8, 9, 13, 14, 22-24; 2F/10, 34, 37, 47, 87, 98; 3F/13; 4F/9, 11, 13, 19; 5F/9, 12, 18, 30, 39, 47, 57). In addition, the claimant generally had relatively normal left upper extremity exam findings during and shortly after the date last insured with a lack of significantly abnormal left arm imaging. (e.g., 2F/31, 47, 49, 50, 55, 56; 4F/6-9; 5F/4-6; 7F/4). Further, the claimant generally had otherwise relatively normal physical exams with a lack of notations of distress. (e.g., 2F/10, 34, 47; 3F/13; 4F/9; 5F/18, 47, 57).(Tr. 26).
Having arrived at this RFC assessment based upon a thorough evaluation of this evidence, the ALJ found at Step 4 that Cleary could not perform her past relevant work. (Tr. 27). The ALJ then determined at Step 5 that Cleary could perform work available in the national economy such as order clerk, call-out operator, or table worker. (Tr. 28). Accordingly, the ALJ concluded that Cleary did not meet the stringent standard for disability set by the Act and denied this claim. (Tr. 29).
This appeal followed. (Doc. 1). On appeal, Cleary argues that the ALJ's assessment of the severity of her symptoms and evaluation of her residual functional capacity were flawed. This case is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, under the deferential standard of review which governs this appeal, we recommend that the decision of the Commissioner be affirmed.
III. Discussion
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 Supreme Court has recently underscored for us the limited scope of our review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.--,----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks
omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek, 139 S.Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that she 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 ....”).
Several fundamental legal propositions which flow from this deferential standard of review. First, when conducting this review “we are mindful that we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, “this Court requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).
As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements ... are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); see also 20 C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §404.1520(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §404.1545(a)(2).
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that “[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: “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). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where a well-supported medical source has identified limitations that would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. Biller, 962 F.Supp.2d at 778-79. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living, to fashion an RFC courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015). In either event, once the ALJ has made this determination, our 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. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21,2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-07. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks for the ALJ's Assessment of a Claimant's
Alleged Symptoms
The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain.
When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:
[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) (“In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses....”). However, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfa re, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to provide “specific reasons for rejecting lay testimony”). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
Yet, it is also clear that:
Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015)(footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of pain under a standard of review which is deferential with respect to the ALJ's well-articulated findings, but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.
In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled.”). It is well-settled in the Third Circuit that “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. §404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.
First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 163p. This includes, but is not limited to: medical signs and laboratory findings, diagnosis and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.
Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D.Pa. Oct. 24, 2014); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015).
D. The ALJ's Decision is Supported by Substantial Evidence.
In this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “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, 487 U.S. at 565. Judged against these deferential standards of review, we find that substantial evidence supported the decision by the ALJ that Cleary was not disabled. Therefore, we recommend that the district court affirm this decision.
At the outset, we note that the medical record in Cleary's case, while mixed and equivocal, contained substantial evidence suggesting that she could perform a limited range of sedentary work. To be sure, Cleary's medical history was marked by numerous procedures addressing left foot impairments, but those records also revealed that these procedures were generally successful and that Cleary often demonstrated that she had a normal gait during her clinical encounters with medical staff. Moreover, we are constrained to observe that every medical expert who conducted a thorough analysis of Cleary's residual functional capacity concluded that she retained the ability to perform some work notwithstanding her foot and shoulder impairments. This evidence, while disputed by Cleary, constitutes “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” that the plaintiff was not totally disabled. Biestek, 139 S.Ct. at 1154. Accordingly, there are no grounds to set aside this decision based upon an error in evaluating Cleary's residual functional capacity.
The presence of this clinical evidence indicating that Cleary could perform some sedentary work is also fatal to Cleary's claim that the ALJ erred in assessing the severity of her symptoms. On this score, the ALJ is not required to accept Cleary's characterization of her symptoms at face value. Quite the contrary, the ALJ is obliged to determine whether the claimant's statements about the intensity, persistence or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16-3p. Here, that medical record, which documented successful treatment of her foot impairments and contained multiple references to her normal gait, provided a sufficient basis for partially discounting Cleary's averments regarding the severity of her symptoms. Given this evidence, there was no error in the ALJ's symptom evaluation.
In closing, the ALJ's assessment of the evidence in this case complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence might have been viewed in a way which would have also supported a different finding, we are obliged to affirm this ruling once we find that it is “supported by substantial evidence, ‘even [where] this court acting de novo might have reached a different conclusion.' ” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we find that substantial evidence supported the ALJ's evaluation of this case. Therefore, we recommend that this decision be affirmed.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the final decision of the Commissioner denying these claims be AFFIRMED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.