Opinion
Civil Action 3:22-cv-01185
08-28-2023
REBECCA DEPUE, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
The plaintiff, Rebecca Depue, 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 July 16, 2015, Depue protectively filed an application for disability insurance benefits, asserting a disability onset date of April 30, 2015. Her application was initially denied by state agency reviewers on September 30, 2015. The plaintiff then requested an administrative hearing.
A hearing was subsequently held on September 12, 2017, before an administrative law judge, Timothy Wing (“ALJ Wing”). In addition to the plaintiff herself, ALJ Wing received testimony from an impartial vocational expert, Carmine Abraham. The plaintiff was represented by counsel at this hearing.
On February 28, 2018, ALJ Wing denied Depue's application for benefits in a written decision. (Tr. 1 2 -22.) The plaintiff sought further administrative review of her claims by the Appeals Council, but her request was denied on April 9, 2019. (Tr. 1 -3.) Depue then timely filed a complaint for judicial review in this court on May 14, 2019.
On July 14, 2020, we entered a report recommending that ALJ Wing's decision be vacated and the matter be remanded for further administrative proceedings. (Tr. 7 1 9 -56.) On September 2, 2020, the court adopted our recommendation, vacated ALJ Wing's February 2018 decision, and remanded the matter for further administrative proceedings. (Tr. 717-18.)
DePue v. Saul, No. 3:19-cv-00825, 2020 WL 5246680 (M.D. Pa. July 14, 2020).
In the meantime, shortly after ALJ Wing's February 28, 2018, decision denying her first application, Depue filed a second, subsequent application for disability insurance benefits, alleging a disability onset date of March 1, 2018-the day after the ALJ decision denying her first application. Her second application was initially denied by state agency reviewers on August 20, 2019, and upon reconsideration on December 19, 2019. The plaintiff then requested an administrative hearing on this second application.
A hearing was subsequently held on June 3, 2020, before a second administrative law judge, Frank Barletta (“ALJ Barletta”). In addition to the plaintiff herself, ALJ Barletta received testimony from an impartial vocational expert, Josephine Doherty. The plaintiff was represented by counsel at this hearing.
On September 1, 2020-one day before the court vacated and remanded the ALJ decision denying her first application-ALJ Barletta denied Depue's second application for benefits in a written decision. (Tr. 704-12.) The plaintiff promptly sought further administrative review of her claims by the Appeals Council.
On January 26, 2021, the Appeals Council entered an order vacating ALJ Wing's February 2018 decision denying Depue's first application pursuant to this court's remand order. In addition, the Appeals Council vacated ALJ Barletta's September 2020 decision denying Depue's second application and consolidated the claim files compiled in both administrative proceedings. The matter was then remanded for further proceedings before ALJ Wing. (Tr. 760-61.)
A post-remand hearing was held on August 3, 2021, before ALJ Wing. In addition to the plaintiff herself, ALJ Wing received testimony from an impartial medical expert, Elizabeth Belanger, M.D., and an impartial vocational expert, Josephine Doherty. The plaintiff was represented by counsel at this hearing.
On September 9, 2021, ALJ Wing denied Depue's consolidated application for benefits in a written decision. (Tr. 629-41.) ALJ Wing followed the familiar five-step sequential evaluation process in determining that Depue 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, ALJ Wing found that Depue had not engaged in substantial gainful activity her alleged onset date and her date last insured. At step two, ALJ Wing found that Depue had the severe impairments of: right lower extremity disorder, including below-knee amputation (BKA); bilateral knee disorder, including osteoarthritis; spinal disorder, including lumbar degenerative arthritis; and obesity. At step three, ALJ Wing found that Depue 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).
At step two, ALJ Wing also noted that Depue had a medically determinable mental impairment of adjustment disorder, but found this impairment non-severe because it did not cause more than minimal limitation in her ability to perform basic mental work activities. In doing so, ALJ Wing considered Depue's limitations in four broad functional areas as a result of her mental disorder, finding no more than mild limitations in any of these four functional areas, which are commonly referred to as “paragraph B” criteria. 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).
We note that the agency's list of musculoskeletal disorders was extensively revised effective April 2, 2021, several months before this plaintiff's application for disability and disability benefits was most recently adjudicated by the agency. See generally Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed. Reg. 78164 (Dec. 3, 2020) (to be codified at 20 C.F.R. pt. 404, subpt. P, app. 1).
Between steps three and four of the sequential-evaluation process, ALJ Wing assessed Depue'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, ALJ Wing found that Depue had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the following limitations:
The Social Security regulations define “sedentary work” as a job that “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). The regulations further comment that: “Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” Id.
The claimant may occasionally stoop, climb ramps and stairs, and use foot controls on the left side, but must avoid foot controls on the right side. The claimant must avoid balancing, kneeling, crawling, crouching, and climbing on ladders, ropes, and scaffolds. The claimant is limited to occupations which can be performed with use of a cane for ambulation, as needed. The claimant must avoid occupations that require pushing and pulling with the lower right extremity. The claimant must avoid frequent concentrated exposure to environments with temperature extremes, excessive vibration, extreme dampness, and humidity. The claimant must avoid exposure to dangerous machinery and unprotected heights. The claimant is limited to occupations which can be performed wearing a prosthesis on right lower extremity. (Tr. 634-35.)
In making these factual findings regarding Depue's RFC, ALJ Wing considered her 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). ALJ Wing also considered and articulated how he weighed the various medical opinions in the record. See generally 20 C.F.R. § 404.1527; Soc. Sec. Ruling 96-2p, 1996 WL 374188.
At step four, based on this RFC and on testimony by the medical and vocational experts, ALJ Wing concluded that, through her date last insured, Depue was able to perform her past relevant work as a data entry clerk, secretary, and staffing coordinator, as actually and generally performed. Based on this finding, ALJ Wing concluded that Depue was not disabled for Social Security purposes.
Although ALJ Wing found Depue not disabled at step four, he also recorded an alternative finding that Depue was capable of performing other work that exists in significant numbers in the national economy, which would in turn dictate a not-disabled finding at step five. Based on Depue's age, education, work experience, and RFC, and based on testimony by the vocational expert, ALJ Wing concluded that Depue was capable of performing the requirements of representative occupations such as charge account clerk (DOT # 205.367-014), order clerk (DOT # 209.567-014), or addresser (DOT # 209.587-010).
The plaintiff sought further administrative review of her claims by the Appeals Council, but her request was denied on June 17, 2022, making ALJ Wing's September 2021 decision the final decision of the Commissioner subject to judicial review by this court.
Depue timely filed her complaint in this court on August 1, 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).
Depue asserts on appeal that ALJ Wing's most recent decision is not supported by substantial evidence because: (1) ALJ Wing erred at step three in finding that Depue did not have an impairment or combination of impairments that met the criteria of Listed Impairment 1.20, concerning amputation due to any cause; (2) ALJ Wing failed to properly evaluate a medical opinion by an independent medical expert, Elizabeth Belanger, M.D.; (3) ALJ Wing failed to properly evaluate a medical opinion by a consultative examining physician, Angelo Anzalone, M.D.; (4) ALJ Wing failed to properly evaluate a medical opinion by a treating orthopedist, Jose Nazar, M.D.; (5) ALJ Wing failed to properly consider subjective evidence regarding Depue's symptoms, including statements or testimony by Depue herself; and (6) ALJ Wing failed to include all of Depue's claimed limitations or impairments in the hypothetical posed to a vocational expert at the most recent administrative hearing.
A. Listing 1.20: Amputation Due to Any Cause
As a young child, the plaintiff's lower right extremity was amputated below the knee, and she was fitted with a prosthesis. In recent years, Depue began to experience swelling and discomfort at the stump site, which has allegedly precluded her from working since 2015. Depue has testified that, when this occurs, she must remove the prosthesis and elevate her leg to reduce the swelling, sometimes for hours. She also uses a single cane to ambulate. As a result of this medical condition, Depue argues that ALJ Wing should have found her disabled at step three of the five-step evaluation process.
Mere diagnosis of an impairment included in the listings is insufficient to establish disability. See 20 C.F.R. § 404.1525(d) (“Your impairment(s) cannot meet the criteria of a listing based only on a diagnosis. To meet the requirements of a listing, you must have a medically determinable impairment(s) that satisfies all of the criteria in the listing.”). “A claimant bears the burden of establishing each element of a Listing, or ‘all of the criteria in the listing.' If even one element is not satisfied, then the ALJ has substantial evidence to conclude that the claimant's impairment is not equivalent and does not meet a Listing.” Weidman v. Colvin, 164 F.Supp.3d 650, 659 (M.D. Pa. 2015) (quoting 20 C.F.R. § 404.1525(d)) (citations omitted); see also Williams v. Su livan, 970 F.2d 1178, 1186 (3d Cir. 1992).
At step three, ALJ Wing found that Depue did not satisfy the criteria of any of the listings. In particular, ALJ Wing considered listing 1.20D, concerning amputation of one or both lower extremities due to any cause. With respect to this listing, ALJ Wing stated:
ALJ Wing's written decision and the parties' briefs on appeal reference listing 1.20 generally, but the impairments addressed by listings 1.20A, 1.20B, and 1.20C are not at issue. There is nothing in the record to suggest that Depue had experienced an amputation of one or both upper extremities, which are addressed in listings 1.20C and 1.20A respectively, nor that she had experienced a hemipelvectomy or hip disarticulation-a lower extremity amputation at the hip-which is addressed in listing 1.20B. Moreover, the substance of the ALJ's decision and the parties' arguments is limited to the criteria of listing 1.20D. Thus, we have limited our discussion here to listing 1.20D, concerning amputation of one or both lower extremities above the ankle.
The claimant's amputation does not meet listing 1.20 Amputation due to any cause , because the record, as fully discussed below, does not demonstrate amputation of one or both lower extremities, occurring at or above the ankle, with complications of the residual limb(s) that have lasted, or are expected to last, for a continuous period of at least 12 months, and medical documentation of the inability to use a prosthesis(es); and a documented medical need for a walker, bilateral canes, or bilateral crutches or a wheeled and seated mobility device involving the use of both hands. Instead, the record fails to show that the claimant has any difficulty with gait or ambulating with her prosthesis.(Tr. 634 (emphasis in original).) Based on this, ALJ Wing concluded that Depue did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 633.)
Listed impairment 1.20D may be established by satisfying the criteria set forth in Section 1.20D of the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.20D (eff. Apr. 2, 2021). As set forth in the Listing of Impairments, these criteria are:
D. Amputation of one or both lower extremities, occurring at or above the ankle (talocrural joint), with complications of the residual limb(s) that have lasted, or are expected to last, for a continuous period of at least 12 months, and medical documentation of 1 and 2:
1. The inability to use a prosthesis(es); and
2. A documented medical need (see 1.00C6a) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)).Id. (emphasis added). The listings also address the evidence necessary to establish an “inability to use a prosthesis(es)” under § 1.20D1:
If you cannot use your prosthesis(es) due to complications affecting your residual limb(s), we need evidence from a medical source documenting the condition of your residual limb(s) and the medical basis for your inability to use the device(s).Id. § 1.00C6b. The listings also explain the meaning of the phrase “documented medical need” as used in § 1.20D2:
When we use the phrase “documented medical need,” we mean that there is evidence from a medical source that
supports your medical need for an assistive device (see 1.00C2b) for a continuous period of at least 12 months (see 1.00C6a). This evidence must describe any limitation(s) in your upper or lower extremity functioning and the circumstances for which you need to use the assistive device. We do not require that you have a specific prescription for the assistive device.Id. § 1.00C6a. The listings further address the evidence necessary to establish such a documented medical need for a hand-held assistive device to ambulate under § 1.20D2:
If you use a hand-held assistive device, we need evidence from a medical source describing how you walk with the device.Id. § 1.00C6d.
Here, the plaintiff contends that she has satisfied the listing 1.20D criteria, pointing to medical treatment records from a treating family physician documenting “significant ambulation difficulty” and “awkward gait” at two separate encounters in April 2018 and May 2019 (Tr. 1176; Tr. 1160), and from a treating orthopedic surgeon noting the presence of a lump (probably a tendon) at the site of her amputation and suggesting that a prosthesis adjustment may be necessary as a result (Tr. 1583). But notwithstanding these complications, the plaintiff clearly did not meet the criteria of listing 1.20. “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). While Depue had experienced an amputation of one lower extremity above the ankle, there is simply no documentation from a medical source indicating an inability to use a prosthesis. The evidence to which she points documents her complaints of pain and discomfort in her right lower extremity, at the site of her amputation, which caused an observably awkward gait and significant ambulation difficulty, but which her treating orthopedic surgeon found to indicate only a need for a prosthesis adjustment-not an inability to use a prosthesis altogether. Moreover, while the record clearly indicates that Depue used a single cane to assist her in maintaining her balance while ambulating on her prosthesis, there is no documentation whatsoever from a medical source indicating a medical need for the use of a walker or bilateral canes or crutches, and there is nothing to suggest that Depue needs or has used a wheeled and seated mobility device of any sort, much less one that requires the use of both hands.
With little elaboration, the plaintiff argues that ALJ Wing nevertheless erred because he failed to consider whether her combination of impairments was equivalent to the criteria of listing 1.20D.
For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is “equivalent” to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment. A claimant cannot qualify for benefits under the “equivalence” step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment.Zebley, 493 U.S. at 531 (citations omitted). See generally 20 C.F.R. § 404.1526 (“Your impairment(s) is medically equivalent to a listed impairment in appendix 1 if it is at least equal in severity and duration to the criteria of any listed impairment.”). But she has failed to point to any medical findings whatsoever equivalent to the criteria of listing 1.20D (or any other listing for that matter)-in particular, there is nothing to indicate that her combined impairments have limited the functional use of both upper extremities while ambulating. In the absence of compelling evidence of a bilateral loss of upper extremity function while ambulating, ALJ Wing had substantial evidence to conclude that Depue's combination of impairments did not medically equal the criteria of listing 1.20D. See Weidman, 164 F.Supp.3d at 659.
The gist of the listing 1.20 criteria is that disability may be presumed where an amputation not only limits the claimant's ability to ambulate, but does so in such a fashion that it also limits the functional use of both upper extremities as well. Under listing 1.20A, disability is presumed where both upper extremities are amputated. Under listing 1.20C, disability is presumed where both an upper extremity and a lower extremity are amputated and ambulation with an assistive device limits the functional use of the remaining upper extremity. As noted above, under listing 1.20D, disability is presumed where one or both lower extremities are amputated and ambulation with an assistive device limits the functional use of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.20; cf. Depue, 2020 WL 5246680, at *4-*5 (noting with respect to this same claimant that, under the corresponding listing criteria prior to the April 2021 revision, disability was presumed for lower extremity amputation only where the condition required use of an assistive device that limits the functioning of both upper extremities).
Accordingly, we find the ALJ's step-three determination that Depue 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, is supported by substantial evidence and was reached based upon a correct application of the relevant law.
B. Evaluation of Medical Opinions
The plaintiff contends that the ALJ erred in his evaluation of the medical opinions provided by the plaintiff's treating orthopedist, Jose Nazar, M.D., a consultative examining physician, Angelo Anzalone, M.D., and an independent medical expert, Elizabeth Belanger, M.D.
1. Treating Orthopedist Opinion
The plaintiff contends that ALJ Wing erred in his evaluation of the opinion of her treating orthopedist, Dr. Nazar. The plaintiff contends that ALJ Wing erred in assigning “little weight” to Dr. Nazar's opinion, recorded in a July 2015 treatment note, that Depue was unable to work and should apply for disability benefits.
To be a “medical opinion” entitled to “controlling weight” an opinion must come from a “treating source,” it must be “well-supported by medically acceptable clinical and laboratory diagnostic techniques,” and it must be “not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(a)(2), (c)(2); Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *2. Under the Social Security regulations applicable to this case, a “treating source” was defined as a “physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you.” 20 C.F.R. § 404.1502. As to what constitutes an “ongoing treatment relationship,” the regulation states:
We note that the treating physician rule applicable in this case was subsequently eliminated by an amendment to the rules effective March 27, 2017. That amendment, however, applies only to claims filed on or after that date. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017).
Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).Id.
If not well-supported by medically acceptable clinical and diagnostic techniques or inconsistent with other substantial evidence in the case record, a treating source medical opinion is nevertheless generally entitled to deference. Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *4. Ordinarily, it will be afforded “great weight.” See Id. at *2; Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). See generally 20 C.F.R. § 404.1527(c) (detailing factors considered in evaluating weight given to a medical opinion).
On July 1, 2015, Dr. Nazar examined Depue and recorded the following note in her treatment record:
46 year-old female with complaints of right [below-knee amputation] changes. She had a congenital anomaly in the right leg that required a sophisticated rotation of the tibia to use it as a part of the lower extremity working as a [below-knee amputation]. The present socket and prosthesis I think is going to need to be adjusted because it is getting loose. On the other hand, as well[,] this patient has problems of low back pain, hip pain, perhaps all related to the way she walks with the prosthesis as well [as] some medical problems, hypothyroidism. I believe this patient should be out of work. I wi l recommend for this patient to apply for Social Security Disability due to the fact that she has severe problems in the knees and small joints that require[] avoiding long[ ]standing and lifting. She will return to this office for follow up in 8 weeks, sooner if any problems. I indicated to the patient that she should apply for Social Security Disability and to send me the papers[,] so we can fill them in and give the ideas of the severity of the problem.(Tr. 263 (emphasis added).)
ALJ Wing considered and found that Dr. Nazar's opinion was not supported by the claimant's medical records and not consistent with the record as a whole. Based on this, ALJ Wing declined to afford Dr. Nazar's opinion controlling weight, assigning it “little weight” instead.
Specifically, the ALJ stated:
[T]he undersigned considered the July 2015 statements of the claimant's treatment provider, Dr. Nazar, who stated, “I believe this patient should be out of work” and
“I will recommend for this patient to apply for Social Security Disability.” The undersigned gives these statements little weight because the record shows that although the claimant has treated with Dr. Nazar since 2015, subsequent treatment record[s] show some relief in the claimant's symptoms with injection treatment. Additionally, even after this opinion was rendered, the claimant reported that she remained able to help take care of her children, take care of her cat, handle her personal care with no problem, prepare meals, perform some housework, drive a car, go out alone, and shop in stores. As such, this opnion is not supported by the medical evidence or consistent with the record as a whole.(Tr. 638 (citations omitted).) In addition, ALJ Wing correctly observed that this particular opinion-that the claimant “should be out of work” and “should apply for Social Security Disability”-is not a medical opinion, but rather an opinion on whether Depue is disabled, an issue expressly reserved to the Commissioner. (Id.) See Id. § 404.1527(d)(1); Dixon v. Comm'r of Soc. Sec., 183 Fed. App'x 248, 251 (3d Cir. 2006) (“[O]pinions on disability are not medical opinions and are not given any special significance.”); Snow v. Astrue, Civil Action No. 12-5 Erie, 2013 WL 501377, at *8 (W.D. Pa. Jan. 15, 2013) (“The ultimate determination as to whether a claimant is disabled is reserved to the Commissioner.”). “Medical sources . . . sometimes offer opinions . . . about an individual's ability to do past relevant work or any other type of work. Because these are administrative findings that may determine whether an individual is disabled, they are reserved to the Commissioner. . . . [T]hey can never be entitled to controlling weight or given special significance.” Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *5; see also Dixon, 183 Fed. App'x at 252 (finding that treating source opinions stating that a claimant was unable to do specific jobs “reflected the treating professionals' opinions on disability, [and] they were properly afforded no special significance”); Snow, 2013 WL 501377, at *8 (“Since medical doctors typically lack the vocational expertise needed to ascertain whether an individual's limitations would preclude the performance of specific jobs, their opinions as to whether a claimant is ‘disabled' carry little weight. . . . Questions pertaining to employer expectations are more appropriately addressed by a vocational expert.”).
Even though Dr. Nazar's opinion is not entitled to controlling weight, his opinion is nevertheless relevant evidence that must be considered and weighed by the ALJ. See 20 C.F.R. § 404.1527(d); Ray v. Astrue, 649 F.Supp.2d 391, 402 n.26 (E.D. Pa. 2009) (“Evidence that does not deserve great weight does not necessarily deserve no weight at all.”). The following factors must be considered to determine the appropriate weight to which the opinion is entitled: (1) the length of treatment and frequency of examination; (2) the nature and extent of the treatment relationship; (3) the opinion's support by medical evidence; (4) the opinion's consistency with the record as a whole; and (5) the treating physician's specialization. 20 C.F.R. § 404.1527(c)(2)-(5). None of these factors may be omitted or disregarded by the ALJ in considering the weight of the opinion. See Casillas v. Astrue, 671 F.Supp.2d 635, 643-44 (E.D. Pa. 2009) (stating that the ALJ “must consider” the factors set forth in 20 C.F.R. § 404.1527(c) in determining what weight to give a medical opinion); Waldron v. Astrue, No. 1:07-CV-2040, 2008 WL 4452350, at *1 (M.D. Pa. Sept. 30, 2008) (same). In addition, the ALJ must consider any other factors that tend to support or contradict the opinion, but only if brought to his or her attention. 20 C.F.R. § 404.1527(c)(6).
In determining the amount of weight to give Dr. Nazar's opinion, ALJ Wing clearly articulated his consideration of factors (1) and (2), expressly describing Dr. Nazar as the claimant's “treatment provider” with whom Depue had treated with since 2015. (Tr. 638.) Moreover, with respect to factor (5), it is clear from the medical records considered by ALJ Wing that Dr. Nazar specializes in orthopedics. (See, e.g., Tr. 263 (noting referral by her primary care physician, Dr. Mattei). With respect to factors (3) and (4), ALJ Wing's decision clearly documents his consideration of the opinion's lack of support by medical evidence, and its inconsistency with the record as a whole. (Id.) ALJ Wing expressly noted that Dr. Nazar's opinion was on a subject reserved to the Commissioner, and no other factors appear to have been brought to the ALJ's attention for consideration.
The plaintiff argues that ALJ Wing failed to discuss certain of Dr. Nazar's treatment notes in his decision. She points to a September 6, 2019, treatment note in which Dr. Nazar purportedly reported that Depue continued to experience balance and walking problems even after getting injections, which she contends supports a contrary finding with respect to the evaluation of Dr. Nazar's opinion. But it is the exclusive province of the ALJ, not this court, to resolve conflicting evidence. “In the process of reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute our own conclusions for that of the fact-finder.'” Rutherford, 399 F.3d at 552 (quoting Williams, 970 F.2d at 1182); see also Stancavage v. Saul, 469 F.Supp.3d 311, 334 (M.D. Pa. 2020). Moreover, it is well settled that an ALJ is not required to discuss every detail of the record evidence cited in his opinion. See Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008). “A written evaluation of every piece of evidence is not required, as long as the ALJ articulates at some minimum level her analysis of a particular line of evidence. Moreover, the ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it.” Philips v. Barnhart, 91 Fed. App'x 775, 780 n.7 (3d Cir. 2004) (citation omitted). While the evidence cited by the plaintiff on appeal might reasonably support a different conclusion with respect to the appropriate weight to assign D r. Nazar's opinion, it does not compel it.
The September 6, 2019, treatment note cited by Depue included a “safety” comment that Depue was a fall risk due to “balance/walking problems” related to “PROSTHETIC LEG RIGHT SIDE,” with no prior history of falls other than an August 2017 fall experienced at the Har[]ford Fair, where Depue hurt her left elbow and received medical attention. (Tr. 1290; see also Tr. 1300 (second copy of same September 6, 2019, treatment notes).) It is clear from the record, however, that this particular “safety” comment is an historical note, rather than a contemporaneous finding by Dr. Nazar. The very same “safety” comment-a verbatim match-also appears in a prior treatment note by Dr. Nazar. (See Tr. 1294 (June 14, 2019, treatment notes).) The record also contains treatment notes for an August 21, 2017, emergency room visit in which Depue was treated for a left elbow contusion following a fall at the Harford Fair: after undergoing a CT scan of her head and x-rays of her elbow, she was given a sling and instructed to apply ice, to elevate the injured joint, to take ibuprofen, and to return tomorrow to the emergency room if not better. (Tr. 1148-53.) There is no record of a return visit.
Accordingly, we find that there is substantial evidence in the administrative record to support ALJ Wing's finding that Dr. Nazar's opinion that Depue “should be out of work” and “should apply for Social Security Disability” was entitled to “limited weight,” and the ALJ's determination of the weight given to Dr. Nazar's opinion was adequately explained and otherwise based on a correct application of relevant l a w .
2. Consultative Examining Physician Opinion
The plaintiff contends that the ALJ erred in his evaluation of the medical opinion provided by a consultative examining physician, Dr. Anzalone.
An ALJ is required to evaluate every medical opinion in the record, regardless of the source of the opinion. 20 C.F.R. § 404.1527(c). In determining the appropriate weight to which a non-treating source's medical opinion is entitled, the ALJ must consider the following factors: (1) whether the medical source actually examined the claimant; (2) the degree to which the medical opinion is supported by relevant evidence; (3) the degree to which the medical opinion is consistent with the record as a whole; and (4) the medical source's specialization. 20 C.F.R. § 404.1527(c)(1) & (3)-(5). In addition, the ALJ must consider any other factors that tend to support or contradict the medical opinion, but only if brought to his or her attention. See Id. § 404.1527(c)(6).
On November 13, 2017, Depue was seen and examined by a consultative examining physician, Dr. Anzalone. In his examination report, Dr. Anzalone opined that Depue was capable of lifting or carrying up to 10 pounds frequently (i.e., from one-third to two-thirds of an eight-hour workday), and up to 20 pounds occasionally (i.e., up to one-third of an 8-hour workday). He opined that Depue was capable of sitting for up to four hours at a time without interruption, standing or walking for up to two hours at a time without interruption, and sitting, standing, or walking for a total of six hours each in an eight-hour workday. He found that Depue required the use of a cane to ambulate and that her use of a cane was medically necessary, but she was still able to use her free hand to carry small objects while using the cane. He noted that she could never operate foot controls with her right foot. In addition, Dr. Anzalone's report included the following non-exertional limitations: Depue was able to climb stairs or ramps only occasionally (up to one-third of the time), and she could never climb ladders or scaffolds, stoop, kneel, crouch, or crawl, nor could she perform work where she was exposed to unprotected heights. (Tr. 603-13.)
ALJ Wing clearly considered Dr. Anzalone's opinion, reviewing his findings in detail and, ultimately, explaining his evaluation of the examining physician's opinion:
Dr. Anzalone's opinions regarding the claimant's exertional limitations are given partial weight, as they are less restrictive, specifically in terms of the length of time that the claimant is able to sit, stand, or walk total in one day. In this respect, Dr. Anzalone's opinion is inconsistent with the medical evidence pertaining to her right lower extremity disorder including below knee amputation and bilateral knee osteoarthritis. The sitting for only 4 hours at one time, however, is given little weight because there is no support for such a restriction in the evidence of record. Dr. Anzalone's findings regarding postural limitations are also given little weight, as they appear to reflect the claimant's self-reported symptoms of back and neck discomfort. Further, his one-time sitting and postural limitations are not well supported by the record, with examinations noting that her left leg and arms are normal and that she moves all extremities without any obvious gross deficits. The claimant's reported activities of daily living such as her ability to attend to personal care, cook, clean, and grocery shop also contradicted the opinion by Dr. Anzalone. Finally, Dr. Anzalone's opinion is contradicted by the well-reasoned and medically supported opinion by Medical Expert Dr. Belanger.(Tr. 637-38 (citations omitted).)
In determining the amount of weight to give Dr. Anzalone's opinion, ALJ Wing here clearly articulated his consideration of factor (1), expressly describing Dr. Anzalone as a “State Agency consultative examiner” who conducted a physical examination of Depue on November 13, 2017. With respect to factors (2) and (3), ALJ Wing's decision clearly documents his consideration of the opinion's lack of support by medical evidence and its inconsistency with the record as a whole. There is no apparent indication in the record of Dr. Anzalone's medical specialization. No additional factors appear to have been brought to the ALJ's attention for consideration.
Depue argues that ALJ Wing's rejection of Dr. Anzalone's no-stooping postural limitation was not supported by substantial evidence because it was based solely on an inference that Dr. Anzalone's finding was based on the claimant's self-reported symptoms alone. But, as the passage quoted above expressly states, in finding that this and other postural limitations opined by Dr. Anzalone were entitled to “little weight,” ALJ Wing considered not only the examining physician's reliance on self-reported symptoms, but also the lack of supporting medical evidence in the record, inconsistency with the claimant's activities of daily living, and inconsistency with a contrary medical opinion, to which the ALJ afforded “great weight.”
Dr. Belanger opined that Depue was capable of occasional stooping, and ALJ Wing adopted that limitation in his RFC determination. (Compare Tr. 670 with Tr. 634.)
Accordingly, the court finds that there is substantial evidence in the administrative record to support ALJ Wing's evaluation of the appropriate weight to assign the opinion of the consultative examining physician, Dr. Anzalone, and that his determination of the weight given to it was adequately explained and otherwise based upon a correct application of relevant law.
3. Non-Examining Medical Expert Opinion
The plaintiff contends that the ALJ erred in his evaluation of the medical opinion provided by an independent medical expert, Dr. Belanger, who testified at the administrative hearing.
Dr. Belanger provided testimony at the administrative hearing on August 3, 2021. Based on her review of the record, Dr. Belanger opined that Depue was capable of lifting up to 10 pounds frequently and 20 pounds occasionally. She testified that Depue was capable of standing up to one hour or walking up to one hour total per workday. Dr. Belanger noted that there was limited evidence that a cane was medically necessary, but she conceded that it was not “unreasonable for her to have access to a cane.” Dr. Belanger opined that Depue was capable of sitting “eight[-]plus” hours per day. She testifed that Depue was subject to certain postural and environmental limitations: Depue could tolerate occasional climbing of ramps and stairs, stooping, use of foot controls with her left lower extremity, and exposure to moving mechanical parts, but no climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, crawling, or exposure to wet or humid environments, exposure to vibration, exposure to extreme heat, use of foot controls with her right lower extremity, or exposure to unprotected heights. (Tr. 668-70.)
In her testimony, Dr. Belanger referred to a finding by examining physician Dr. Anzalone that Depue was capable of walking 20 feet without the use of a cane. (Tr. 669; see also Tr. 609.)
Dr. Belanger was also questioned about a June 8, 2020, letter written by Depue's family physician, Dennis M. Mattei, MD, in which Dr. Mattei opined that Depue was required to elevate her right leg for six hours per day to combat chronic swelling at the amputation site. (Tr. 669- 70; see also Tr. 1366; Tr. 1530 (second copy of same letter).) Dr. Belanger also acknowledged that Dr. Mattei had prescribed furosemide to treat edema at the amputation site, but she noted that Depue's medical records did not document edema at the amputation site-at least not prior to her date last insured, December 31, 2018. (Tr. 669-70.)
ALJ Wing considered Dr. Belanger's opinion and afforded it “great weight.” In support of this finding, ALJ Wing stated:
[T]his opinion is consistent with the medical evidence of record and objective examination findings, including the claimant's lower extremity amputation, bilateral knee osteoarthritis, and lumbar arthritis, but otherwise normal motor, sensory, reflex, and strength findings.(Tr. 637.)
In determining the amount of weight to give Dr. Belanger's opinion, ALJ Wing here clearly considered factor (1), eliciting testimony from Dr. Belanger confirming that she had not examined or treated Depue, but based her opinion on a review of the medical evidence in the administrative record. (Tr. 666.) With respect to factors (2) and (3), ALJ Wing's decision clearly and expressly documents his consideration of whether Dr. Belanger's opinion is supported by relevant evidence and consistent with the record as a whole. (Tr. 637.) With respect to factor (4), ALJ Wing clearly considered Dr. Belanger's specialization and the extent of her professional expertise, eliciting testimony about her curriculum vitae, which was made a part of the administrative record. (Tr. 666; Tr. 1592-95.) No additional factors appear to have been brought to the ALJ's attention for consideration.
Depue argues that ALJ Wing's evaluation of Dr. Belanger's opinion was not supported by substantial evidence, pointing in particular to medical records documenting Dr. Mattei's treatment of Depue for swelling at the site of her amputation. In particular, the plaintiff has cited multiple references to the prescription of furosemide 20mg to treat edema. But the records cited indicate that the medication was not prescribed until well after Depue's date last insured-December 31, 2018. (See Tr. 1358 (furosemide prescription started May 1, 2019); Tr. 1368 (furosemide currently prescribed as of June 18, 2020); Tr. 1411 (furosemide prescription started May 24, 2020); Tr. 1579 (furosemide currently prescribed as of June 24, 2021).)
The plaintiff also argues that she was prescribed Demerol for swelling. But the records cited in support do not indicate that this opioid pain medicine was prescribed to treat edema, but rather they document an adverse reaction, indicating that Depue experienced swelling when prescribed Demerol in October 2011. (See Tr. 1417; Tr. 1426.)
Accordingly, the court finds that there is substantial evidence in the administrative record to support ALJ Wing's evaluation of the appropriate weight to assign the opinion of the independent medical expert, Dr. Belanger, and that his determination of the weight given to it was adequately explained and otherwise based upon a correct application of relevant law.
C. Subjective Evidence of the Plaintiff's Symptoms
The plaintiff contends that ALJ Wing's decision is not supported by substantial evidence because the ALJ erred in his evaluation of Depue's symptoms. 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. 635-39.) This included the plaintiff's statements and testimony regarding the limiting effects of her symptoms. Based on his consideration of the whole record, ALJ Wing properly concluded that, while Depue'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.” (Tr. 635.)
The plaintiff argues that ALJ Wing erred in considering her activities of daily living when evaluating her 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 her 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), 416.929(c)(3)(i) (“Factors relevant to your symptoms, . . . which we will consider include . . . [y]our daily activities . . . .”).
Although Depue quibbles with the outcome of ALJ Wing's analysis of the evidence of record, it is clear that the ALJ properly evaluated the plaintiff's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding the plaintiff'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 ALJ Wing'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.
D. Vocational Expert Hypothetical Question
The plaintiff contends that ALJ Wing's step-five determination is not supported by substantial evidence because the ALJ failed to include all of Depue's claimed limitations or impairments in the hypothetical posed to a vocational expert at the administrative hearing.
It is well settled, however, that a hypothetical question posed to a vocational expert need only account for credibly established limitations or impairments. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Here, ALJ Wing explicitly considered and addressed the plaintiff's severe and medically determinable non-severe impairments, her subjective complaints of pain and other symptoms, and the various medical opinions in the record. The hypothetical posed to the vocational expert included all limitations or impairments ALJ Wing had found credible. In light of all the evidence, and ALJ Wing's reasoned consideration of it, we find no error in the ALJ's conclusions with respect to the plaintiff's functional limitations or impairments.
III. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Depue 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 August __, 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.