Opinion
CIVIL ACTION NO. 3:16-cv-1139
02-11-2019
SHAWN T. GARRETT, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant
(MUNLEY, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Shawn T. Garrett ("Plaintiff"), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claims for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. (Doc. 1). Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the administrative record I find that the final decision of the Commissioner of Social Security is supported by substantial evidence. Accordingly, I RECOMMEND that the final decision of the Commissioner be AFFIRMED. II. STATEMENT OF FACTS AND OF THE CASE
On May 4, 2010, Plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act and an application for supplemental security income under Title XVI of the Social Security Act. In both applications, Plaintiff alleged that the onset of his disability was September 1, 2009, and that his disability was a result of the following impairments: blindness of the right eye, deteriorating vision in the left eye, "hbp," and loss of hearing in left ear. (Admin. Tr. 146). Plaintiff reported that his conditions affect his ability to: lift, squat, bend, and complete tasks. (Admin. Tr. 160).
Plaintiff was forty (40) years old as of his alleged onset date, and he has previously worked as a paint mixer, quality assurance technician, and rail cutter. (Admin. Tr. 429). Plaintiff has at least a high school education and can read and write in English. Id.
On November 18, 2010, Plaintiff's applications were denied at the initial level of administrative review. (Admin. Tr. 10). Following the denial of his applications, Plaintiff requested an administrative hearing. Id. On May 8, 2012, Plaintiff appeared and testified, with the assistance of counsel, at a video administrative hearing before Administrative Law Judge Deborah L. Rose ("ALJ Rose"). Id. Impartial vocational expert A.G. Marlowe also appeared and testified during the proceedings. Id. On June 29, 2012, ALJ Rose issued a written decision denying Plaintiff's applications for benefits. (Admin. Tr. 10-18). Following the denial of his applications at the ALJ hearing level, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council") assess ALJ Rose's decision denying his applications. This request was denied on June 25, 2013. (Admin. Tr. 1).
On August 28, 2013, Plaintiff sought judicial review of ALJ Rose's June 2012 decision denying his applications. See Complaint, Garrett v. Comm'r of Soc. Sec., 3:13-cv-2258, ECF Doc. 1 (Aug. 28, 2013). On February 28, 2014, the Commissioner filed a concurred in Motion requesting that Plaintiff's case be remanded. (Admin. Tr. 500-502). On March 3, 2014, United States District Judge Malachy Mannion granted the Commissioner's Motion. (Admin. Tr. 499).
On June 23, 2014, the Appeals Council issued an Order vacating the ALJ's June 2012 decision and remanding Plaintiff's case to an ALJ to:
(1)Address the opinion of treating ophthalmologist Robert G. Notz, M.D.;(Admin. Tr. 496).
(2)Develop additional vocational information concerning the exertional and nonexertional demands of Plaintiff's past relevant work, and evaluate how it compares to Plaintiff's current RFC; and
(3)Evaluate the impact of Plaintiff's hearing loss on his RFC.
On December 18, 2014, Plaintiff appeared and testified before Administrative Law Judge Edward L. Brady ("ALJ Brady"), with the help of counsel. (Admin. Tr. 422). Vocational expert Nadine Henzes (the "VE") also appeared and testified at this hearing. Id. On January 16, 2015, ALJ Brady issued a written decision denying Plaintiff's applications. (Admin. Tr. 430). On February 17, 2015, Plaintiff filed a request with the Appeals Council for review of ALJ Brady's January 16, 2015 decision. (Admin. Tr. 413). On April 20, 2016, the Appeals Council denied Plaintiff's request. (Admin. Tr. 408).
On June 14, 2016, Plaintiff initiated this action by filing a Complaint in which he alleges that ALJ Brady's final decision denying his applications was not made in accordance with the law and is not supported by substantial evidence. (Doc. 1). As relief, Plaintiff requests that the Court enter an order reversing the decision of the Commissioner and granting Plaintiff's applications. (Doc. 1 p. 2).
On August 23, 2016, the Commissioner filed her Answer in which she maintains that the decision denying Plaintiff's applications is correct; was made in accordance with the law; and is supported by substantial evidence. (Doc. 8). Along with her Answer, the Commissioner filed a certified transcript of the administrative proceedings. (Doc. 9).
This case has been fully briefed and is ripe for disposition. (Doc. 10); (Doc. 13). III. LEGAL STANDARDS
A. SUBSTANTIAL EVIDENCE REVIEW - THE ROLE OF THIS COURT
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) ("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
B. INITIAL BURDENS OF PROOF, PERSUASION, AND ARTICULATION FOR THE ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on January 16, 2015.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. 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); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 42 U.S.C. §1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(f); 20 C.F.R. § 416.912(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999). IV. ANALYSIS
Plaintiff raises the following arguments in his Brief:
(1)ALJ Brady's RFC assessment is defective because it did not account for Plaintiff's poor depth perception or photophobia.(Doc. 13, pp. 10-11).
(2)ALJ Brady's decision to discount Plaintiff's testimony about his headaches, photosensitivity, and Bell's palsy is not supported by substantial evidence.
This Court's Local Rule 83.40.4(c) provides that, the argument section of Plaintiff's brief:
Shall be divided into sections separately addressing each issue and shall set forth the contentions of plaintiff with respect to each issue and the reasons therefor. Each contention must be supported by specific reference to the portion of the record relied upon and by citations to statutes, regulations and cases supporting plaintiff's position.(emphasis added). Careful scrutiny of Plaintiff's brief reveals that, although he relies on evidence from the 500-plus page administrative transcript throughout his brief, he does not cite to it at any point in the argument section.
A. THE ALJ'S DECISION DENYING PLAINTIFF'S APPLICATIONS
In his January 16, 2015 decision, ALJ Brady found that Plaintiff met the insured status requirement under Title II of the Social Security Act through December 31, 2012. Then, ALJ Brady evaluated Plaintiff's applications at each step of the sequential evaluation process.
At step one, ALJ Brady found that Plaintiff did not engage in substantial gainful activity between September 1, 2009 (the alleged onset date) and January 16, 2015 (the date the ALJ issued his decision) (the "relevant period"). (Admin. Tr. 425). At step two, ALJ Brady found that, during the relevant period, Plaintiff had the following medically determinable, severe impairments: blindness in the right eye; blurred vision in the left eye; degenerative disc disease of the cervical spine; and headaches. Id. ALJ Brady also found that, during the relevant period, Plaintiff had the following medically determinable non-severe impairments: tobacco dependence; gastro-esophageal reflux disease; hypertension; sensorineural hearing loss; and Bell's palsy. Id. At step three, ALJ Brady found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Between steps three and four, ALJ Brady evaluated Plaintiff's RFC. He concluded that, during the relevant period, Plaintiff had the RFC to perform "medium" work as defined in 20 C.F.R. § 404.1567(c) and 20 C.F.R. § 416.967(c) with the following additional limitations:
[he] is limited to occupations that require no more than frequent near and far visual acuity. [He] would have limited depth perception and should avoid dangerous conditions and machinery. [He] should only work in indoor environments.(Admin. Tr. 426).
At step four, ALJ Brady found that, during the relevant period, Plaintiff was unable to engage in his past relevant work as a paint mixer, a quality assurance technician, and a rail cutter. (Admin. Tr. 429). At step five, ALJ Brady found that, considering the above-quoted RFC and Plaintiff's other vocational factors, during the relevant period Plaintiff could perform other jobs that existed in the national economy, including occupations such as a bagger, a cleaner, and a hand packer. (Admin. Tr. 430). Based on these findings, ALJ Brady concluded that Plaintiff does not meet the statutory definition of "disabled" under the Social Security Act. (Admin. Tr. 430).
B. WHETHER THE ALJ'S RFC DETERMINATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE
The summary of Plaintiff's testimony in ALJ Brady's decision notes that "he experiences headaches with pain in both eyes, and that these headaches could last four to five days," and that "he has difficulties with florescent light, television light, and sunlight. (Admin. Tr. 426). As a result of his photosensitivity, Plaintiff "stays indoors when he can and wears sunglasses in an effort to control his eye pain and headaches." (Admin. Tr. 427).
In his decision, ALJ Brady also noted that "the prior decision contains a detailed analysis of the claimant's treatment through 2012, and that analysis is incorporated herein by reference as if fully set forth at length." (Admin. Tr. 427). In ALJ Rose's 2012 decision, she described Plaintiff's treatment for his eye impairments as follows:
Robert Notz, M.D., examined the claimant on July 20, 2010. He does remember seeing him several years ago. He requested old records to be retrieved. The claimant states that his symptoms were more consistent with a haze, and bright lights bother him. It is also associated with headaches similar to "a terrible migraine". Dr. Notz did not find any signs of sympathetic ophthalmia. The claimant was currently working with paint fumes. This would aggravate his current condition. He may have to be off work several months. He prescribed some eye drops. On September 8, 2010, he tried an injection, however; the pain was not improved. Both eyes were still very sensitive to light. His visual acuity was light perception in right eye and 20/30-1 in left eye (Exhibit 6F).
R. Craig Neilsen, M.D., performed a consultative physical examination on August 11, 2010. The claimant states he was blind in his right eye, had deteriorating vision in his left eye . . . . At that time the main problem was his eye. . . . He has not been able to see anything out of his right eye since his surgery in 1984. . . . He made no mention of deteriorating vision in the left eye. . . . Vision in the left eye was 20/40, and in the right eye, he cannot see even light or dark. Both TMs have perforation inferiority and are scarred and deformed.
His right cornea is quote cloudy diffusely and the left, the pupil is round and reactive to light.(Admin. Tr. 15-16).
. . . .
On December 8, 2010, the claimant returned to Dr. Notz for a follow-up. He did have pain in his right eye. It was tender to the touch. In the left eye, he saw well but still had photophobia. He wears sunglasses all the time. On January 5, 2011, he had ghost double images from his left eye. There is no evidence of melanoma in his blind right eye. On February 7, 2011, he was still getting a headache in the eye. It involved both eyes, but not as strong as before. The left retina dilated exam looked excellent. He fitted him with a brown contact. On March 23, 2011, the contact did help. The left eye was as stable as possible with no signs of uveitis. On July 29, 2011, the brown contact helps with photophobia. The left eye looked excellent with 20/30. On February 28, 2012, he was having problems getting assistance for glasses. The glasses are medically necessary as his right eye is irreversibly blind and the photophobia of the left eye is still a serious problem. He did give him a prescription for the glasses.
In his 2015 decision, ALJ Brady summarized Plaintiff's eye treatment after June 2012 as follows:
The claimant testified that he stopped treating for his left eye issues after he received the initial unfavorable decision in June 2012. He testified that, after receiving this unfavorable decision, he went into a mode where he simply did not care, and that he did not seek treatment for any medical condition from June of 2012 until he developed Bell's palsy in the summer of 2014. This not only calls into question the true motivation behind the claimant's treatment through June 2012, it suggests to the undersigned that the claimant's overall symptoms have not been as bothersome as he alleges. Indeed, the claimant testified that he was still experiencing debilitating headaches along with worsening vision problems since the June 2012 decision. Thus, it is difficult to understand why the claimant would simply stop treating for these symptoms after receiving an unfavorable decision on his
disability claim. The fact that the claimant sought and received treatment for his recent bout with Bell's palsy (as well as recent treatment for lacerations and a broken pinky finger) demonstrates that the claimant has sufficient awareness of his general state of health, and that he will seek treatment when he finds there is some threshold at which the claimant will seek medical treatment. This is yet further evidence suggesting that the claimant's symptoms and limitations regarding his headaches, eye pain, and vision difficulties are not as bothersome as he alleges.(Admin. Tr. 427).
Three medical opinions address Plaintiff's vision problems.
On August 11, 2010, nontreating consultative examiner R. Craig, Nielsen, M.D. ("Dr. Nielsen") wrote a narrative report about his observations during examination and completed a check-box RFC assessment. In his narrative report, Dr. Nielsen noted that Plaintiff "is here with listed disabilities of . . . deteriorating vision in left eye," "[t]he patient makes no mention of deteriorating vision in the left eye and in fact I asked him 'So you have no problems seeing with your left eye and he said, no.'" (Admin. Tr. 272, 274). In his check-box RFC assessment, Dr. Nielsen noted that Plaintiff's impairments affected his ability to see because he was right eye blind. (Admin. Tr. 280).
On November 17, 2010, State agency medical consultant Anne C. Zaydon, M.D., ("Dr. Zaydon") completed an RFC assessment. Dr. Zaydon assessed that Plaintiff was limited in his field of vision, but unlimited in his near acuity, far acuity, depth perception, accommodation, and color vision. (Admin. Tr. 337).
In a December 8, 2010 treatment note, treating ophthalmologist Robert G. Notz, M.D., reported "STILL TRYING TO GET A JOB BUT ANYTHING WHICH REQUIRES DEPTH PERCEPTION WILL NOT BE POSSIBLE." (Admin. Tr. 402) (capitalization in original).
ALJ Brady did not address Dr. Nielsen's opinion in his decision. ALJ accorded "limited" weight to Dr. Zaydon's opinion, in large part because Dr. Zaydon included hearing limitations that ALJ Brady concluded were not supported by the record. (Admin. Tr. 428-429). I note, however, that ALJ Brady's assessment of Plaintiff's vision limitations is more restrictive in terms of Plaintiff's depth perception, far acuity, and near acuity, and less restrictive in terms of Plaintiff's field of vision. ALJ Brady discounted Dr. Notz's opinion that Plaintiff could not do any job requiring depth perception because no problems with depth perception were noted in Dr. Notz's treatment notes, but limited Plaintiff to occupations that would not require more than occasional depth perception and would not involve exposure to moving machinery or other hazards. (Admin. Tr. 427-428).
In this context, "depth perception" is defined as "Three-dimensional vision. Ability to judge distances and spatial relationships so as to see objects where and as they actually are." U.S. Department of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles Appendix C available on Westlaw at SCODICOT APP C.
Far acuity is defined as "Clarity of vision at 20 feet or more." Id.
Near acuity is defined as "Clarity of vision at 20 inches or less." Id.
Field of vision is defined as "Observing an area that can be seen up and down or to right or left while eyes are fixed on a given point." Id.
To account for Plaintiff's visual impairment, ALJ Brady limited Plaintiff to occupations that require no more than frequent near and far visual acuity. (Admin. Tr. 426). ALJ Brady also limited Plaintiff to occupations where he could avoid dangerous conditions and machinery due to Plaintiff's limited depth perception. Id. The ALJ limited Plaintiff to working in indoor environments due to his photosensitivity. (Admin. Tr. 426).
Plaintiff argues that ALJ Brady's RFC assessment is not supported by substantial evidence. I have reproduced Plaintiff's entire argument as to this issue below:
The Administrative Law Judge found that the Plaintiff has the residual functional capacity to perform medium work except that he can only perform jobs requiring frequent near and far good visual acuity and limited depth perception and should avoid dangerous conditions and machinery. She should only work indoors.(Doc. 10, p. 4).
There was no evidence of record that the Plaintiff retained this residual functional capacity. The Administrative Law Judge's residual functional capacity findings must be supported by the medical evidence, and in this case, there is no evidence to support his findings. See Dujak v. Heckler, 190 F.2d 26 (3d Cir. 1986) and Social Security Rule 83-1A. The office notes and record of Dr. Notz do not provide any basis for the above residual functional capacity. As stated above Dr. Notz stated that Plaintiff could not perform a job that required depth perception. In addition Dr. Notz noted the headaches suffered by Plaintiff and his photophobia, which would restrict his attendance at work. Furthermore no allowance was made for any restrictions on lighting.
In response, the Commissioner argues that "Plaintiff ignores the ALJ's well-developed discussion of the evidence that indicates that Plaintiff retained the ability to work with the restrictions within the RFC." (Doc. 13, p. 30).
As an initial matter, I note that Plaintiff cites to one Social Security Ruling ("SSR") and one Third Circuit case in support of his argument. With respect to the Social Security Ruling cited by Plaintiff—SSR 83-1A—this ruling is titled "Wife's Insurance Benefits—Family Relationships—Status of a 'Deemed' Divorced Wife." 1983 WL 31231. SSR 83-1A appears to have no applicability to Plaintiff case. With respect to the case cited by Plaintiff—Dujak v. Heckler, 190 F.2d 26 (3d Cir. 1986)—I can find no record of a case decided by the Third Circuit under that name or citation. It appears that Plaintiff may have been relying on Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986).
In Doak, the claimant alleged that he was disabled because of back problems, emphysema, chest pains, and feet trouble. Doak, 790 F.2d at 27. The ALJ found that, despite his impairments, the claimant could engage in light work. Id. The record in Doak included "claimant's testimony, three medical reports . . ., and a vocational expert's testimony." Id. at 29. The Third Circuit found that the ALJ's conclusion that the claimant could do light work was not supported because:
One physician believes Doak is totally disabled, another said he could do sedentary work, and a third made no conclusion about ability to work but states that the claimant "was only able to exercise to a total
of 4 METs of activity reaching a heart rate of 133 at which time he was extremely short of breath and [it] was indeed noticed that the wheezing was much worse." Tr. at 89. No physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence.Id.
Unlike in Doak, none of the medical of records suggest that Plaintiff's photosensitivity is severe enough that he cannot tolerate florescent lighting, or that his headaches would result in frequent absences. As such, I am not persuaded by Plaintiff's argument that remand is required under Doak for further consideration of these limitations.
C. THE ALJ'S CREDIBILITY DETERMINATION
In his 2015 decision, ALJ Brady noted that "the claimant's testimony at the initial hearing was set forth at length in the prior decision, which is incorporated here by reference." (Admin. Tr. 426). In her 2012 decision, ALJ Rose summarized Plaintiff's testimony during the first administrative hearing as follows:
He worked until May 7, 2007 for a window covering company. He was fired. He performed various jobs there. He put together the blinds, restocked shelves and ran a slat machine, which put the slats into the blinds. After that, he went to work for labor ready. He worked there September 1, 2009. All of his problems come from being blind in his right eye. He has to keep sunglasses on all the time. The pressure was up in his good eye and he has a stigmatism in his left eye. His eye will start shaking. He had to have a special prescription for his glasses. He has tried shots in his eye and also drops and pills. He is currently using eye drops. He has to deal with pain and headaches. They might take his bad eye out so good eye will not be sympathetic. He gets headaches when he reads or goes outside. Lighting like the fluorescent
lights causes headaches. He gets the headaches about three times a day. He takes Advil, lies down and closes his eyes. He gets no advance warning about the headaches. He can read for 10 to 15 minutes and then gets a headache. He sits in a recliner and closes his eyes. There are times Advil does not work and then it takes and hour or two to go away. When the medicine works, it goes away in 15 to 20 minutes. The jobs he has had requires good vision; schematics, reading blueprints and working on blinds. He has had his headaches since his onset date in 2009. He said he had a headache right now. He just feels he is unable to work, because no place would allow frequent breaks. He is not able to do what he used to. He could probably deliver papers if no reading was involved. He will probably not be able to work the rest of his life. He did have clear vision in his left eye at one time, but no longer. He sees two with a haze, almost like double vision. He says glasses may help astigmatism, where they will not shake, but he does not think it will help. He cannot afford the glasses, which cost $350 to $500. He saw Dr. Notz about mid-march. His next appointment is June 18th. The claimant thinks he will eventually give up and take the eye out. The good eye is being sympathetic to it and he cannot deal with the headaches. If taking the eye out will resolve the headache issue, he will go ahead and do it.(Admin. Tr. 13-14).
He take Predforte eye drops, Lisinopril for his blood pressure, and Dicyclomine for stomach, probably since 1999, when he had his gallbladder taken out. He wakes up every day with an upset stomach. It takes about two hours to get relief. His vision in his right eye has been gone since childhood. He has a problem with depth perception. He will run into walls, doorways, and other things. He thought he was doing pretty good growing up and paying basketball and baseball, but it got much worse. His field of vision to left side is about even with front of face and just to the right side of his nose. He is totally blind in his right eye.
ALJ Brady summarized Plaintiff's testimony at the December 2014 hearing as follows:
In the supplemental hearing held on December 18, 2014, the claimant testified that his overall vision has gotten worse since the initial hearing. He testified that his left eye continues to shake, and that he has begun to experience what he calls "flashes of light" in the left eye. He testified that this could occur anywhere from several times per day to once every several days. He testified that he has difficulties with florescent light, television light, and sunlight. He testified that he stays indoors when he can and wears sunglasses in an effort to control his eye pain and headaches.(Admin. Tr. 426-427).
With regard to the claimant's allegations related to his limited depth perception, the claimant testified at the initial hearing that he often runs into walls and doorways. In the supplemental hearing, the claimant testified that he continues to have difficulty with depth perception, and that he has difficulty grabbing things from people, as he often does not reach far enough. He also provided an example of not being to locate the remote control when it is on a black surface.
The Commissioner's regulations define "symptoms" as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1528(a); 20 C.F.R. § 416.928(a); SSR 96-4p, 1996 WL 374187. A symptom, however, is not a medically determinable impairment, and no symptom by itself can establish the existence of such an impairment. SSR 96-4p, 1996 WL 374187. The ALJ is not only permitted, but also required, to evaluate the credibility of a claimant's statements about all symptoms alleged and must decide whether and to what extent a claimant's description of his or her impairments may be deemed credible. In many cases, this determination has a significant impact upon the outcome of a claimant's application, because the ALJ need only account for those symptoms- and the resulting limitations-that are credibly established when formulating his or her RFC assessment. Rutherford, 399 F.3d at 554. To facilitate this difficult analysis, the Commissioner has devised a two-step process that must be undertaken by the ALJ to evaluate a claimant's statements about his or her symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b); SSR 96-4p, 1996 WL 374187; SSR 96-7p, 1996 WL 374186.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. § 404.1529(c)(1); 20 C.F.R. § 416.929(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions can reasonably be accepted as consistent with objective medical evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4); 20 C.F.R. § 416.929(c)(4). However, an ALJ will not reject statements about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3). Instead, the ALJ will evaluate the extent to which any unsubstantiated symptoms can be credited based on the following factors: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3).
An ALJ's findings based on the credibility of a claimant are to be accorded great weight and deference, since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531(6th Cir. 1997)). An ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford, 399 F.3d at 554.
In his decision, ALJ Brady found that Plaintiff's statements about his symptoms and limitations were not entirely credible. (Admin. Tr. 427). ALJ Brady did so, in part, because Plaintiff did not seek treatment for any condition between June 2012 and 2014. ALJ Brady found that this two-year gap in treatment "suggests to the undersigned that the claimant's overall symptoms have not been as bothersome as he alleges." (Admin. Tr. 427).
Plaintiff argues that ALJ Brady improperly discounted Plaintiff's statements that "he has pain behind the eye and headaches," that being "outside, under fluorescent lighting or reading gives him headaches which occur three times a day, and he has to lay down," that that if "he reads about 10-15 minutes this brings on the headaches." (Doc. 10, pp. 4-5). Plaintiff asserts that ALJ Brady's assessment of Plaintiff's statements was not in accordance with the applicable regulations and rulings because:
The Administrative Law Judge discounted Claimant's testimony because he did not seek medical treatment between the first decision and the diagnosis of Bell's Palsey [sic] in 2014. Claimant testified that after the first decision he went into a mode where he didn't care so he didn't see any doctors. While a refusal of prescribed treatment may result in a findings [sic] with [sic] no disability there was no evidence of any such refusal of prescribed treatment.
To find a claimant not disabled for refusal to follow prescribed treatment, the Commissioner must meet four criteria: (1) the impairment must be amendable to treatment that would be expected to restore the Claimant's ability to work, (2) the treatment must be prescribed, (3) treatment must be refused, and (4) the refusal must be willful and without justifiable excuse. Sharp v. Bowen, 705 F. Supp.
1111 (W.D. Pa. 1989) (Cohill, J.); see also Mendez v. Chater, 943 F. Supp. 503, 508 (E.D. Pa. 1996) (Reed, J.) (finding that although the claimant discontinued her prescribed medications, noncompliance me [sic] have been the result of her mental impairment).(Doc. 10, p. 5).
In his argument, Plaintiff appears to conflate two distinct concepts. The four-factor test and caselaw cited above addresses scenarios where an ALJ denied benefits pursuant to 20 C.F.R. § 404.1530, 20 C.F.R. § 416.930, and SSR 82-59, 1982 WL 31384. These regulations are inapplicable to this case.
The Commissioner's regulations state, "[i]n order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work," and explain that "[i]f you do not follow the prescribed treatment without a good reason, we will not find you disabled . . . ." 20 C.F.R. § 404.1530; 20 C.F.R. § 416.930. SSR 82-59 further explains that "[i]ndividuals with a disabling impairment which is amenable to treatment that could be expected to restore their ability to work must follow prescribed treatment." 1982, WL 31384 at *1. The factors cited by Plaintiff were set forth in SSR 82-59, and therefore are only applicable in cases where the ALJ finds that the claimant had a disabling impairment, and that the treatment refused would have restored the ability to work. ALJ Brady did not find that either of these conditions were present, and did not decide Plaintiff's case based on 20 C.F.R. § 404.1530, 20 C.F.R. § 416.930, or SSR 82-59. --------
My review of ALJ Brady's analysis reflects that the ALJ did not find that Plaintiff had a disabling impairment that was amendable to treatment that could be expected to restore his ability to work. Instead, ALJ Brady discussed the two-year gap in Plaintiff's treatment history in relation to 20 C.F.R. § 404.1529(c)(3)(v) and 20 C.F.R. § 416.929(c)(3)(v) when evaluating the credibility of Plaintiff's statements about his symptoms. These regulations explain that the "[t]reatment, other than medication, you receive or have received for relief of pain or other symptoms," is a factor relevant to the assessment of the credibility of Plaintiff's statements about his symptoms. SSR 96-7p elaborates:
In general, a longitudinal medical record demonstrating an individual's attempts to seek medical treatment for pain or other symptoms and to follow that treatment once it is prescribed lends support to an individual's allegations of intense and persistent pain or other symptoms for the purposes of judging the credibility of the individual's statements. Persistent attempts by the individual to obtain relief of pain or other symptoms, such as by increasing medications, trials of a variety of treatment modalities in an attempt to find one that works or that does not have side effects, referrals to specialists, or changing treatment sources may be a strong indication that the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of intense and persistent symptoms.
On the other hand, the individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure. However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to recontact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual's credibility. For example:
* The individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.1996 WL 374186 at *7-8 (emphasis added).
* The individual's symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.
* The individual may not take prescription medication because the side effects are less tolerable than the symptoms.
* The individual may be unable to afford treatment and may not have access to free or low-cost medical services.
* The individual may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.
* Medical treatment may be contrary to the teaching and tenets of the individual's religion.
I find no error in ALJ Brady's application of 20 C.F.R. § 404.1529(c)(3)(v), 20 C.F.R. § 416.929(c)(3)(v) and SSR 96-7p. Plaintiff does not dispute that there was a two year gap in treatment. This gap where Plaintiff received no medical care and took no prescribed medications is inconsistent with his statements about his symptoms. Furthermore, in accordance with SSR 96-7p, ALJ Brady considered Plaintiff's reasons for not seeking medical care for that two year period before discounting Plaintiff's statements regarding the severity of his symptoms as inconsistent with Plaintiff's treatment history. To the extent Plaintiff argues that his failure to seek treatment was based on a mental disorder, I note that ALJ Brady found no evidence of a medically determinable mental impairment during the relevant period. Accordingly, I am not persuaded by Plaintiff's argument.
Next Plaintiff argues that:
It is improper for the ALJ to discount testimony or subjective complaints because these symptoms are inconsistent with the ALJ's residual functional capacity assessment. This pattern of discounting symptoms and subjective complaints has been discredited by several courts because it determines that the claimant can work first then discredits the symptoms and evidence that fail to support that determination. See e.g. Mascio v. Comm'r of Soc. Sec., 780 F.3d 632, 639 (4th Cir. 2015); Cox v. Comm'r of Soc. Sec., No. 14-6243[615 F. App'x 254] (6th Cir. June 11, 2015) (unpublished); Bjornson v. Astrue, 671 F.3d 640, 645-47 (7th Cir. 2012) (Posner, J.); Kamann v. Colvin, 721 F. 3d 945, 949-951 (8th Cir. 2013); Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1102-03 (9th Cir. 2014).(Doc. 10, pp. 5-6).
Although not cited anywhere in his brief, Plaintiff's argument appears to relate to the following boilerplate language in ALJ Brady's decision:
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.(Admin. Tr. 427). I note that this language is different than the boilerplate paragraph criticized in Mascio, Cox, Bjornson, Kamann, and Treichler, which states as follows:
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.Mascio, 780 F.3d at 639 (emphasis added); see also Cox, 615 F. App'x at 259-260; Bjornson, 651 F.3d 640 at 644-645; Kamann, 721 F.3d at 951-952; Treichler, 775 F.3d at 1097. Furthermore, the criticism of the language cited in Mascio, in part, stems from the appearance that the ALJ's analysis gets things backwards "by implying that ability to work is determined first and is then used to determine the claimant's credibility." 780 F.3d at 639 (quoting Bjornson, 671 F.3d at 645) (internal quotation marks omitted). The court in Mascio then goes on to explain that use of this boilerplate language would be harmless if the ALJ properly analyzed the claimant's credibility elsewhere in the decision. Id.
I am not persuaded that remand is required under Mascio and its ilk for two reasons. First, the actual boilerplate language used by ALJ Brady in this case does not imply that ALJ Brady analyzed Plaintiff's credibility and RFC assessment "backwards." ALJ Brady wrote that Plaintiff's statements were not entirely credible "for the reasons explained in this decision," not because Plaintiff's statements were "inconsistent with the RFC assessment." Second, after the boilerplate language Plaintiff objects to, ALJ Brady explains why, and what aspects, of Plaintiff's testimony he discounted. Thus, even if ALJ Brady had used this criticized boilerplate language the error would be deemed harmless under the caselaw that Plaintiff relies upon.
Last, Plaintiff argues that:
The law is clear that pain may be disabling and subjective evidence of disability can support a claim. While there must be objective medical evidence of some condition that could reasonably produce the pain or limiting conditions, there need not be objective evidence of pain itself. Green v. Schweiker, F. 2d 1066 (3d Cir. 1984). Here, the record supports a finding of conditions that could reasonably produce pain and the limiting conditions. As the Plaintiff's subjective testimony as to his limited condition is corroborated by medical evidence, it should be given great weight. Ken v. Schweiker, 710 F.2d 110 (3d Cir. 1983).(Doc. 10, p. 6). I decline to address the merits of this argument as Plaintiff has failed to sufficiently develop the issue. Plaintiff suggests that he experiences pain, and that there need not be objective evidence to credit it—which is correct under the Commissioner's regulations. However, as discussed above, when a symptom such as pain is not corroborated by objective evidence the ALJ considers seven factors identified in 20 C.F.R. § 404.1529(c)(3) and 20 C.F.R. § 416.929(c)(3) to assess its credibility. Although he asserts that the record supports a finding that he is in pain, he does not identify what specific records support such a finding or explain why ALJ Brady's consideration of those records is defective. V. RECOMMENDATION
Accordingly, for the foregoing reasons, I recommend that the ALJ's decision denying Plaintiff's Application for Benefits under Titles II and XVI of the Social Security Act be AFFIRMED as follows:
1. The Court should issue an order DENYING Plaintiff Shawn T. Garrett's request for relief and AFFIRMING the final decision of the Commissioner of Social Security;Date: February 11, 2019
2. Final judgment should be issued by separate order in favor of the Acting Commissioner of Social Security and against Plaintiff Shawn T. Garrett; and,
3. The clerk of court should CLOSE this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that 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.Date: February 11, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge