Opinion
Civil Action 20-1538
12-16-2021
PATRICIA ANN GIESE Plaintiff, v. KILOLO KIJAKAZI, [1] Commissioner of Social Security
OPINION AND ORDER
Donetta W. Ambrose, United States Senior District Judge
Synopsis
Plaintiff Patricia Ann Giese (“Giese”) brought this action for review of the final decision of the Commissioner of Social Security denying her claim for social security benefits. Giese contends that she became disabled on January 14, 2016. (R. 15). She was represented by counsel at a hearing before an Administrative Law Judge (“ALJ”) in March 2019. (R. 34-86). During the hearing both Giese and a vocational expert (“VE”) testified. Ultimately, the ALJ denied benefits. Giese filed this appeal. The parties have filed Cross-Motions for Summary Judgment. See ECF Docket Nos. 20 and 22.
OPINION
1. Standard of Review
Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court to review the transcripts and records on which a determination of the Commissioner is based, and the court will review the record as a whole. See 5 U.S.C. § 706. When reviewing a decision, the district court's role is limited to determining whether the record contains substantial evidence to support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g., that offered by treating physicians).” Id. The Commissioner's findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979); Richardson, 402 U.S. at 390, 91 S.Ct. 1420.
A district court cannot conduct a de novo review of the Commissioner's decision, or re-weigh the evidence; the court can only judge the propriety of the decision with reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Otherwise stated, “I may not weigh the evidence or substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011 WL 2036692, 2011 U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).
2. The ALJ's Decision
At step one, the ALJ determined that Giese had not engaged in substantial gainful activity since the alleged onset date. (R. 18). At step two, the ALJ found that Giese suffered from the following severe impairments: lumbar degenerative disc disease and arthritis; obesity; generalized anxiety disorder; major depressive disorder; and post-traumatic stress disorder. (R. 18). Although the ALJ considered several other medical conditions, he did not find that they constituted “severe impairments.” (R. 18). Turning to the third step, the ALJ concluded that those impairments, considered singly or in combination, did not meet or medically equal the severity of a listed impairment. (R. 19-20). The ALJ then found that Giese had the residual functional capacity (“RFC”) to perform light work with certain restrictions. (R. 20-26). At the fourth step the ALJ concluded that Giese was capable of performing her past relevant work. (R. 26-27). Additionally, the ALJ determined that Giese was also capable of performing work in other jobs existing in significant numbers in the national economy. (R. 27-28). Consequently, the ALJ denied benefits.
3. Discussion
(1) Step Two - Severe Impairments
Giese argues that the ALJ erred at step two of the sequential evaluation process in failing to find that numbness associated with her hands and fingers constituted a severe impairment. Giese urges that the ALJ seemingly failed to even consider this condition, as he neither qualified it as a severe impairment or as a non-severe impairment. Giese adds that the ALJ compounded this error in failing to include any limitations associated with the numbness in the RFC.
Giese's challenge lacks merit. A review of the record indicates that the ALJ considered Giese's numbness. The ALJ specifically acknowledged Giese's complaints regarding numbness in her arms and hands. (R. 21). He noted that a November 2018 EMG / NCV of Giese's upper extremities was within normal limits. (R. 22, citing, Ex. 14F).
Significantly, the ALJ did not deny Giese's application for benefits at step two of the analysis. Rather, the ALJ found in Giese's favor at step two when he concluded that Giese's lumbar degenerative disc disease and arthritis, obesity, generalized anxiety disorder, major depressive disorder, and post-traumatic stress were severe impairments. (R. 18). The ALJ ruled against Giese only later in the sequential evaluation process, after concluding that her residual functional capacity was sufficient to enable her to perform jobs that exist in significant numbers in the national economy. (R. 26-28). Thus, even accepting Giese's position as correct for purposes of argument, such errors were harmless because the ALJ found that she suffered from other impairments which did qualify as “severe.” See Salles v. Comm'r. of Soc. Sec., 229 Fed.Appx. 140, 145 n.2 (3d Cir. 2007) (stating that, “[b]ecause the ALJ found in Salle's favor at Step Two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless.”), citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). See also, Bliss v, Astrue, Civ. No. 8-980, 2009 WL 413757 (W.D. Pa. Feb. 18, 2009) (stating that, “as long as a claim is not denied at step two, it is not generally necessary for the ALJ to have specifically found any additional alleged impairments to be severe... . Since Plaintiff's claim was not denied at step two, it does not matter whether the ALJ correctly or incorrectly found Plaintiff's neuropathy and sleep apnea to be non-severe.”).
(2) Medical Opinions
Giese also contends that the ALJ improperly disregarded the medical opinions of her treating physicians - Drs. Kochik and Zerby. Giese's claim, filed after March 27, 2017, is subject to new Social Security regulations regarding the evaluation and treatment of medical opinions. The new standards differ significantly from the prior regulatory framework and Giese's argument is reliant upon the incorrect and outdated standard.
These new regulations require an ALJ to focus upon the persuasiveness of each medical opinion rather than to accord opinions particular evidentiary weight. See 20 CFR 404.1520c; 416.920c. Thus, an ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a] medical source.” Id. at 404.1520c(a); 416.920c(a). For such claims, an ALJ shall consider the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors such as familiarity with other evidence in the claim or an understanding of disability policies and evidentiary requirements, as well as whether new evidence received after the opinion makes the opinion more or less persuasive. Id. at 404.1520c(c); 416.920c(c). “The most important factors” are supportability and consistency. Id. at 404.1520c(a); 416.920c(a). Therefore, the ALJ must explain how he/she considered the supportability and consistency of an opinion but the ALJ is not required to discuss or explain how he/she considered the other factors. Id. at 404.1520c(b)(2); 416.920c(b)(2). When opinions are equally supported and consistent with the record on the same issue but not exactly the same, however, the ALJ must explain how he/she considered the other factors. Id. at 404.1520c(b)(3); 416.920c(b)(3). Additionally, when a medical source provides multiple opinions, an ALJ is not required to articulate how he/she considered each opinion but may consider it in one single analysis using the factors above. Id. at 404.1520c(b)(1); 416.920c(b)(1). Moreover, an ALJ is not required to articulate how he/she considered evidence from nonmedical sources. Id. at 404.1520c(d); 416c(d).
Applying the appropriate standard in this case, I find that I am able to make a proper and meaningful review and that the ALJ's evaluation of the medical evidence is supported by substantial evidence of record. Simply stated, the ALJ chose between contrasting medical opinions and gave greater weight to those opinions which he found to be more consistent with Giese's medical records and activities of daily living. Specifically, the ALJ found the State agency psychologist, John Vigna, to have proffered a medical opinion that was persuasive because it was consistent with Giese's conservative mental health treatment history and consistent with the record as a whole. (R. 25). Similarly, the ALJ found persuasive the opinion proffered by Dr. Bluett Jones, the state agency medical consultant, because the opinion was consistent with Giese's treatment history and the record as a whole. (R. 25-26). In contrast, Dr. Zerby's conclusion that Giese would miss four days of work per month and is unable to obtain and sustain full time employment, the ALJ determined, is not persuasive because it is inconsistent with Giese's generally normal mental status examinations and conservative treatment. (R. 26). Giese's contentions to the contrary are unavailing. She applied the incorrect and outdated standard. Therefore, her contentions that the ALJ should have given greater weight to a “treating physician” rather than to a non-examining physician is misguided and unconvincing. Because the ALJ applied the appropriate standard and his findings are supported by substantial evidence of record, I find that remand is not required.
(3) Residual Functional Capacity
Finally, Giese contends that the RFC is not based upon substantial evidence of record. Giese's argument is based upon her contentions that the ALJ should have accorded the medical opinions proffered by Drs. Zerby and Kochik greater weight because they were treating physicians. For the reasons set forth above, this argument lacks merit as it relies upon outdated case law and regulations. The ALJ's finding regarding Giese's RFC is supported by substantial evidence of record.
To the extent that Giese objects to the ALJ's alleged failure to give appropriate weight to her subjective complaints, again, I find her objections to be unpersuasive. An ALJ must follow a two-step process when assessing pain: first, he must determine whether there is a medical impairment that could reasonably be expected to produce the claimant's pain or other symptoms; and second, he must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. Pain alone does not establish disability. 20 C.F.R. 404.1529(a), 416.929(a). Allegations of pain must be consistent with objective medical evidence and the ALJ must explain the reasons for rejecting non-medical testimony. Burnett v. Comm'r. of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). In evaluating a claimant's statements regarding pain, the ALJ will consider evidence from treating, examining, and consulting physicians, observations from agency employees; and other factors such as the claimant's daily activities; descriptions of the pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of medications; treatment other than medication; and other measures used to relieve the pain. 20 C.F.R. 404.1529, 416.929. I must defer to the ALJ's determinations unless they are not supported by substantial evidence. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 429 U.S. 931 (1975).
Here, the ALJ specifically stated that he considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. 404.1529 and SSR 16-3p.” (R. 20) Further, the ALJ followed the proper method in assessing Giese's symptoms and pain. That is, he first determined whether there was an underlying medically determinable physical or mental impairment that could reasonably be expected to produce his pain or other symptoms, then the ALJ evaluated the intensity, persistence and limiting effects of those symptoms. (R. 20-21). The ALJ comprehensively detailed Giese's medical history. He properly compared the medical evidence and other evidence of record, including activities of daily living, the intensity of pain, factors that precipitate and aggravate the symptoms, the effectiveness of medication, the treatment other than medication, and found them not to be entirely consistent. The ALJ noted that Giese's complaints of pain are inconsistent with her medical history. (R. 21). She received conservative treatment for her back pain. She declined surgery. She reported her pain as having improved. (R. 22-23). Giese's mental status examinations generally were normal. (R. 24). Giese reported to tolerating her medications without side effects. (R. 24). In short, there can be no suggestion that he ignored or improperly discounted Giese's complaints of pain. Rather, as stated above, the ALJ's findings are supported by substantial evidence of record.
Consequently, there is no basis for remand.
ORDER OF COURT
Therefore, this 16th day of December, 2021, it is hereby ORDERED that the Motion for Summary Judgment (Docket No. 20) is DENIED and the Motion for Summary Judgment (Docket No. 22) is GRANTED. The Clerk of Courts shall mark this case “Closed” forthwith.