Opinion
CIVIL ACTION NO. 3:18-CV-01931
01-15-2020
KAREN MARIE GUYER, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
Plaintiff Karen Marie Guyer brings this action under sections 205(g) and 1631(c) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c) (incorporating 42 U.S.C. § 405(g) by reference), for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Act. The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b). For the following reasons, it is respectfully recommended that the Commissioner's decision be AFFIRMED.
I. BACKGROUND AND PROCEDURAL HISTORY
In April 2015, Guyer filed applications under Titles II and XVI, claiming disability beginning May 1, 2014, due to bulging and herniated discs and fibromyalgia. (Doc. 6-2, at 16) (Doc. 6-3, at 2, 7) (Doc. 6-6, at 13). The Social Security Administration initially denied the applications in July 2015, prompting Guyer's request for a hearing, which Administrative Law Judge (ALJ) Howard Kauffman held on June 2, 2017. (Doc. 6-2, at 16, 39) (Doc. 6-3, at 5, 10). In a September 2017 written decision, the ALJ determined that Guyer is not disabled and therefore not entitled to benefits or income under Titles II or XVI. (Doc. 6-2, at 16). The Appeals Council subsequently denied Guyer's request for review. (Doc. 6-2, at 2).
On October 4, 2018, Guyer commenced the instant action. (Doc. 1). The Commissioner responded in December 2018, providing the requisite transcripts from Guyer's disability proceedings. The parties then filed their respective briefs, with Guyer raising two principal bases for reversal or remand. (Doc. 7, at 6) (Doc. 8) (Doc. 11).
II. STANDARDS OF REVIEW
To receive benefits under Titles II or XVI of the Social Security Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1509, 416.909. To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in significant numbers in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(a). Additionally, to be eligible under Title II, a claimant must have been insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(a); 20 C.F.R. § 404.131.
A "physical or mental impairment" is defined as an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
A. ADMINISTRATIVE REVIEW
In evaluating whether a claimant is disabled, the "Social Security Administration, working through ALJs, decides whether a claimant is disabled by following a now familiar five-step analysis." Hess v. Comm'r Soc. Sec., 931 F.3d 198, 200-01 (3d Cir. 2019). The "burden of proof is on the claimant at all steps except step five, where the burden is on the Commissioner of Social Security." Hess, 931 F.3d at 201; see 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1). Thus, if the claimant establishes an inability to do past relevant work at step four, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).
B. JUDICIAL REVIEW
The Court's review of a determination denying an application for Title II benefits is limited "to considering whether the factual findings are supported by substantial evidence." Katz v. Comm'r Soc. Sec., No. 19-1268, 2019 WL 6998150, at *1 (3d Cir. Dec. 20, 2019) Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). The quantum of proof is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict created by such evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). In an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
The question before the Court, therefore, is not whether Guyer was disabled, but whether the Commissioner's determination that Guyer was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence."); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). If "the ALJ's findings of fact . . . are supported by substantial evidence in the record," the Court is bound by those findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). III. THE ALJ 'S DECISION
In his written decision, the ALJ determined that Guyer "has not been under a disability, as defined in the Social Security Act, from May 1, 2014, through the date of this decision." (Doc. 6-2, at 26). The ALJ reached this conclusion after proceeding through the five-step sequential analysis provided in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a).
Pursuant to the 42 U.S.C. § 423(a)(1)(a) and 20 C.F.R. § 404.131, the ALJ first determined that "[Guyer] meets the insured status requirements of the Social Security Act through December 31, 2019." (Doc. 6-2, at 19).
A. STEP ONE
At step one of the five-step analysis, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If a claimant is engaging in substantial gainful activity, the claimant is not disabled, regardless of age, education, or work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). Substantial gainful activity is defined as work activity requiring significant physical or mental activity and resulting in pay or profit. 20 C.F.R. §§ 404.1572, 416.972. The ALJ must consider only the earnings of the claimant. 20 C.F.R. §§ 404.1574(a)(2), 416.974. Here, the ALJ determined that Guyer "has not engaged in substantial gainful activity since May 1, 2014, the alleged onset date," and therefore proceeded to step two of the analysis. (Doc. 6-2, at 19).
B. STEP TWO
At step two, the ALJ must determine whether the claimant has a medically determinable impairment—or a combination of impairments—that is severe and meets the 12-month duration requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the ALJ determines that a claimant does not have an impairment or combination of impairments that significantly limits the claimant's "physical or mental ability to do basic work activities," the ALJ will find that the claimant does not have a severe impairment and is therefore not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If, however, a claimant establishes a severe impairment or combination of impairments, the ALJ proceeds to consider step three. Here, ALJ concluded that Guyer's cervical degenerative disc disease is severe. (Doc. 6-2, at 19). While Guyer also alleged "disability secondary to carpal tunnel syndrome, lumbar degenerative disc disease, and fibromyalgia," the ALJ found these to be non-severe for lack of evidence that they caused more than minimal limitations. (Doc. 6-2, at 19-20). Likewise, though medically determinable, Guyer's depression was deemed non-severe based on the ALJ's finding that it "does not cause more than minimal limitation in [Guyer's] ability to perform basic mental work activities . . . ." (Doc. 6-2, at 20).
C. STEP THREE
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in the version of 20 C.F.R. § Pt. 404, Subpt. P, App. 1 that was in effect on the date of the ALJ's decision. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 404.1526, 416.920(a)(4)(iii), 416.925, 416.926. The sections in this appendix are commonly referred to as "listings." If the ALJ determines that the claimant's impairment or impairments meet a listing, then the claimant is considered disabled, otherwise the ALJ must proceed to and analyze the fourth step of the sequential analysis. 20 C.F.R. §§ 404.1520(d), 416.920(d). Here, the ALJ determined that none of Guyer's impairments, considered individually or in combination, meets or equals the severity of a listed impairment. (Doc. 6-2, at 21). The ALJ specifically considered 1.04 (disorders of the spine). (Doc. 6-2, at 21); see 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
D. RESIDUAL FUNCTIONAL CAPACITY
Between steps three and four, the ALJ evaluates the claimant's residual functional capacity (RFC), crafted upon consideration of all the evidence presented. At this intermediate step, the ALJ considers all claimant's symptoms and "the extent to which [they] can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404.1529(a), 416.929(a). This involves a two-step inquiry according to which the ALJ must (1) determine whether an underlying medically determinable mental impairment or impairments could reasonably be expected to produce the claimant's symptoms; and, if so, (2) evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. See 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c). Here, Guyer alleged that her impairments caused various non-exertional difficulties, which the ALJ summarized as follows:
[Guyer] alleges disability due to physical problems. In her appeal from the initial denial, she reported neck and shoulder pain due to herniated discs. She alleged that she could not lift over five pounds. She indicated that she needed to alternate between sitting and standing every five minutes. At the disability hearing, she reported neck, shoulder, and arm pain along with weakness and problems gripping with the hands. She indicated that she could lift her thirty-pound grandchild to her lap and could carry ten[-]pound bags of groceries, but she had problems holding on to things. [Guyer] lives with her daughter and her daughter's family, with whom she shares household chores. Her daughter prepares meals with the assistance of [Guyer]. When sitting, she alleges that she changes position to keep comfortable. She lays down for thirty to forty-five minutes each day. She indicated that the medications caused sleepiness and fatigue. Because of the combination of these impairments and resulting functional limitations, [Guyer] alleges she is disabled within the meaning of the Social Security Act.
(Doc. 6-2, at 22 (internal citations to the record omitted)).
After weighing Guyer's written and oral statements against other evidence in the record, the ALJ found that her impairments could reasonably be expected to cause the alleged symptoms, but that her statements about the intensity, persistence, and the limiting effects of the symptoms are not entirely consistent with the medical evidence and other evidence in the record. (Doc. 6-2, at 21). The ALJ then went on to detail Guyer's medical records and treatment history. (Doc. 6-2, at 21-24). Considering all evidence in the record, the ALJ determined that Guyer has the RFC "to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)," except she can (1) "lift and carry twenty pounds occasionally and ten pounds frequently"; (2) "sit, stand, or walk six hours each in an eight-hour workday"; (3) "climb ramps and stairs" but not "ladders, ropes, or scaffolds"; and (4) "balance, stoop, kneel, crouch, and crawl occasionally." (Doc. 6-2, at 21-24).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. §§ 404.1567(b), 416.967.
E. STEP FOUR
Step four requires the ALJ to determine whether the claimant had, during the relevant period, the RFC to perform the requirements of his or her past relevant work regardless of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Past relevant work is work that the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. §§ 404.1560(b), 416.920(a)(4)(iv). The ALJ considers whether the claimant retains the capacity to perform the particular functional demands and job duties of the past relevant work, either as the claimant actually performed it or as ordinarily required by employers throughout the national economy. Garibay v. Comm'r Of Soc. Sec., 336 F. App'x 152, 158 (3d Cir. 2009) (quoting SSR 82-6). "If the claimant can perform his [or her] past relevant work despite his limitations, he [or she] is not disabled." Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)); see also 20 C.F.R. § 416.920(a)(4)(iv). Here, after comparing Guyer's RFC to the demands of Guyer's past relevant work as a production assembler and store laborer, the ALJ found, based on testimony adduced from a vocational expert at Guyer's administrative hearing, that Guyer would be unable to perform such work. (Doc. 6-2, at 24).
F. STEP FIVE
At step five, the ALJ considers the claimant's age, education, and work experience to determine whether the claimant can make the adjustment to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant who can adjust to other work is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Here, considering Guyer's age, education, work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Guyer can perform. (Doc. 6-2, at 25). In making that determination, the ALJ relied on the vocational expert's testimony that Guyer was able to perform the requirements of occupations such as housekeeping cleaner, cafeteria attendant, and a cashier II, all light work occupations with open positions ranging from 98,000 to 191,000 nationally. (Doc. 6-2, at 25). Accordingly, the ALJ determined that Guyer was not disabled and denied her applications for benefits. (Doc. 6-2, at 26).
IV. DISCUSSION
Guyer submits that the ALJ erred in two significant ways: (1) the ALJ erroneously precluding her from admitting into evidence a functional capacity evaluation and a medical source statement, both material in the context of her claim; and (2) substantial evidence does not support the ALJ's RFC. (Doc. 7, at 6-7). In response, the Commissioner maintains that the ALJ's decision is supported by substantial evidence and reflects a proper application of the law and regulations. (Doc. 5, at 4).
A. THE ALJ DID NOT ERRONEOUSLY PRECLUDE EVIDENCE
Guyer first asserts that the ALJ erred in precluding admission of the report of a functional capacity evaluation (FCE) performed on June 1, 2017, and a medical source statement (MSS) signed by Guyer's treating physician on June 9, 2017. (Doc. 7, at 8-12). At the administrative hearing, the ALJ denied Guyer's request that the FCE and MSS be admitted into evidence, as Guyer had failed to comply with the "five-day rule," pursuant to which "[e]ach party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence . . . no later than 5 business days before the date of the scheduled hearing." 20 C.F.R. §§ 404.935(a), 416.1435(a); (Doc. 6-2, at 16-17, 44). The ALJ explained his rationale for precluding this evidence in his written decision.
[Guyer] submitted or informed the Administrative Law Judge about additional written evidence less than five business days before the scheduled hearing date. The undersigned Administrative Law Judge admits some, but not all, of the additional evidence. The undersigned admitted the seven-page chronological medical analysis as Exhibit 12E, which was submitted by [Guyer] on June 1st, because the evidence is argumentative and analytical and not substantive medical evidence. The undersigned excluded the thirty-eight[-]page functional capacity examination submitted on June 1st and the medical source opinion from Dr. Milroth submitted on June 9th because [Guyer] did not submit the medical records at least five business days before the scheduled hearing or inform the undersigned of additional evidence at least five days before the hearing. [Guyer] received notice of the hearing at least seventy-five days prior to the June 2nd hearing, which included notice that submission of written evidence was due five business days prior to the scheduled hearing (Exhibits l3B and 14B). [Guyer] did not request the medical source opinion from Dr. Milroth for thirty days, who then informed [Guyer] that an opinion would not be provided without a functional capacity examination which could not be scheduled until June 1, 2017. [Guyer] did not inform the undersigned until May 26th, which was less than five business days before the hearing. Considering the more than forty-day delay in attempting to obtain an opinion from a treating provider, the undersigned does not find good cause for the late filing of the medical source opinion and functional capacity examination. Accordingly, the undersigned does not admit these records.
(Doc. 6-2, at 16-17).
Guyer argues that (1) the ALJ incorrectly held that Guyer failed to inform the ALJ about this evidence no later than five days before the administrative hearing; (2) the ALJ erred by finding no good cause for the late submission of the FCE and MSS; and (3) the Court should remand Guyer's case under 42 U.S.C. § 405(g) for consideration of the FCE and MSS, both of which constitute "new" and "material" evidence under the statute. (Doc. 7, at 8-12). For the following reasons, the Court finds that the ALJ properly applied the law and that substantial evidence supports his finding that Guyer failed to meet her burden of establishing good cause for belatedly informing him about and submitting evidence.
1. The ALJ Correctly Held that Guyer Failed to Timely Inform the ALJ About or Submit the FCE and MSS
Invoking Federal Rule of Civil Procedure 6(a)(1) (computing and extending time), Guyer argues that she complied with the five-day rule because her counsel sent a letter on May 26, 2017, informing the ALJ of the following: "Ms. Guyer is scheduled for a Functional Capacity Exam the week of May 29, 2017 and the results of that exam will be uploaded prior to the hearing date." (Doc. 6-6, at 58). Rule 6(a)(1) provides that a "period stated in days" be computed as follows: (1) the "day of the event that triggers the period" is excluded; (2) all other days are counted, "including intermediate Saturdays, Sundays, and legal holidays"; and (3) the last day of the period is included unless it is a "Saturday, Sunday, or legal holiday," in which case "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." Fed. R. Civ. P. § 6(a)(1). Applying Rule 6(a)(1) in this case, the June 2, 2017 hearing date would be excluded; every other day would be counted (including Memorial Day, May 29, 2017); and because the fifth day before the hearing would therefore be Sunday, May 28, 2017, the period would continue to run until Friday, May 26, 2017, which is when Guyer's counsel sent his letter informing the ALJ about the FCE and MSS.
However, the calculation of time in this context is squarely addressed in HALLEX (Hearing, Appeals and Litigation Law Manual), a Social Security Administration publication that provides guidance concerning how ALJs and other adjudicators are to handle various aspects of the appeals process. While the regulations themselves do not provide a detailed method of computation such as Rule 6(a)(1) provides, they do indicate that only "business days" are included under the five-day-rule calculation—and HALLEX I-2-5-1 fills the gaps by directing that a business day should be considered any weekday, excluding Federal holidays, and ends after 11:59 p.m. in the time zone where the hearing office servicing the claimant's current address is located. HALLEX I-2-5-1 (S.S.A.), 1992 WL 601803. As such, because Monday, May 29, 2017, was Memorial Day and therefore excluded from the calculation, Guyer's counsel's May 26, 2017 letter was sent on the fourth day before her hearing and therefore subject to preclusion.
The fact that a claimant's attorney is not informed of the appropriate legal guidelines to use when adjudicating Social Security Disability appeals does not change the result in this case because all persons dealing with the government are presumed to have knowledge of relevant statutes and duly promulgated regulations. See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947); see also Spong v. Fidelity Nat. Property and Cas. Ins. Co., 787 F.3d 296, 308 (2015).
Courts "must defer to an agency's consistent interpretation of its own regulation unless it is plainly erroneous or inconsistent with the regulation." Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor v. Mangifest, 826 F.2d 1318, 1323 (3d Cir. 1987). Here, because HALLEX is entirely consistent with the regulations that provide for the five-day rule, it is entitled to such deference. To the extent Guyer argues that Rule 6(a)(1) is controlling because it is inconsistent with HALLEX I-2-5-1, that argument is unavailing. First, Rule 6(a)(1) is a statute and not a regulation promulgated by the Social Security Administration. Second, Rule 6(a)(1) is irreconcilable with the regulations' five-day rule. Consider the example where a claimant's administrative hearing is held on a Thursday and no legal holidays are involved, Rule 6(a)(1) would direct the conclusion that the preceding Friday (as the fifth "last" day would fall on a Saturday) is the last day on which the claimant could inform about or submit evidence. In the same scenario, the regulations themselves (without regard to HALLEX) would direct the exclusion of Saturday and Sunday (as only business days are included) such that Thursday is the last day on which the claimant could inform about or submit evidence.
2. Substantial Evidence Supports the ALJ's Determination that Guyer Failed to Establish Good Cause Warranting Consideration of the Late-Submitted Evidence
If a claimant fails to inform the ALJ about or submit evidence in accordance with the five-day rule, the ALJ "will [nonetheless] accept the evidence if he or she has not yet issued a decision and [the claimant] did not inform [the Administration] about or submit the evidence before the deadline" because of one of three reasons: (1) the Administration misled the claimant; (2) the claimant had a physical, mental, educational, or linguistic limitation or limitations that prevented the claimant from informing the Administration about or submitting the evidence earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control prevented the claimant from informing the Administration about or submitting the evidence earlier. 20 C.F.R. §§ 404.935(b), 416.1435(b). An example of circumstances qualifying for the third reason is where the claimant "actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing." 20 C.F.R. §§ 404.935(b), 416.1435(b); see also HALLEX I-3-3-6 (S.S.A.), 1993 WL 643129 ("Generally, the A[ppeals] C[ouncil] will only consider additional evidence as a basis for granting review if the claimant meets one of the good cause exceptions . . . ; the additional evidence is new, material, and relates to the to the period on or before the date of the hearing decision; and there is a reasonable probability that the additional evidence will change the outcome of the decision.").
At Guyer's hearing, her counsel referenced the May 26, 2017 letter, explaining that the FCE had been requested "prior to the five days" ("as soon as [the hearing] was scheduled") but that Guyer's family doctor, Dr. Milroth, did not "feel comfortable giving restrictions without [first] sending [Guyer] for [an FCE and only after reviewing the FCE with Guyer]." (Doc. 6-2, at 41-42). Counsel further indicated that she and Guyer immediately tried to schedule an appointment upon receiving notice of the hearing; she and Guyer "started requesting [an MSS] about a month-and-a-half ago, two months ago"; Dr. Milroth was "willing to . . . preview [the FCE] and give an opinion" but was "out of the office th[at] week"; and Guyer "[did] have an appointment for Tuesday." (Doc. 6-2, at 41-42). Finding no good cause in counsel's assertions, the ALJ denied the application for consideration of the RCE and MSS. (Doc. 6-2, at 42).
Given the ALJ's articulated reasoning for declining to consider the FCE and MSS, there is no basis for remand or reversal on this ground. Mere "receipt of documents from a medical source less than five business days before a hearing is not by itself sufficient to establish unusual, unexpected, or unavoidable circumstances beyond the claimant's control." See Shuey v. Berryhill, No. 1:18-CV-00626, 2019 WL 1303201, at *5 (M.D. Pa. Feb. 28, 2019), report and recommendation adopted, No. 1:18-CV-626, 2019 WL 1299272 (M.D. Pa. Mar. 21, 2019). Neither counsel's statements at the administrative hearing nor her brief adequately explain why it took one month to determine the identity of Guyer's primary care physician. (Doc. 7, at 10-11 (setting forth timeline according to which, following receipt of notice of the hearing in mid-March 2017, counsel "immediately began trying to contact [Guyer] to obtain an updated treatment status"; "promptly requested updated records via facsimile on March 28, 2017"; and upon receipt of the updated records on April 15, 2017, reviewed the records "to determine which treating sources would be able to give an opinion regarding [Guyer's] functional limitations")). Further, even assuming the "delay in receiving the RFC assessment [and MSS] . . . explain counsel's delay in supplying the opinion to the ALJ, it does not explain counsel's failure to inform the ALJ about the opinion earlier." See Shuey, No. 1:18-CV-00626, 2019 WL 1303201, at *5 (emphasis added). Although there are cases in which reversal is mandated where an ALJ has failed to address an exception to the five-day rule and, in failing to do so, fell short of developing an adequate record for meaningful judicial review, this case is distinguishable, and reversal is not warranted on this ground. See, e.g., Razey v. Comm'r of Soc. Sec., No. CV 19-04-E, 2019 WL 4451082, at *4 (W.D. Pa. Sept. 17, 2019) (reversing where ALJ failed to address the exception to five-day rule based on an "unusual, unexpected, or unavoidable circumstance").
In short, there is substantial record support for the ALJ's determination that Guyer failed to establish that her late submission of evidence was due to unusual, unexpected, or unavoidable circumstances beyond her control.
3. Substantial Evidence Supports the ALJ's Determination that the RCE and MSS Are Not "New" and "Material" Evidence under Section 405(g)
Guyer's third argument concerning preclusion is that because the RCE and MSS are "new" and "material" evidence, the Court is empowered to remand the case and direct the ALJ to consider both. (Doc. 7, at 16). If "a claimant seeks to rely on evidence that was not before the ALJ," the Court may "remand the case to the Commissioner for consideration of that evidence under the sixth sentence of § 405(g), but only if the evidence is 'new' and 'material,' and only if the claimant shows good cause why it was not presented to the ALJ." Pennington v. Comm'r of Soc. Sec., 683 F. App'x 168, 170 (3d Cir. 2017). So-called "sixth-sentence remand is appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding." Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The claimant has the burden to make this showing. Pennington, 683 F. App'x at 170. "Under sentence six, the district court may remand in light of additional evidence without making any substantive ruling as to the correctness of the Secretary's decision, but only if the claimant shows good cause for failing to present the evidence earlier." Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991) ("In amending the sixth sentence of § 405(g) in 1980, Congress made it unmistakably clear that it intended to limit the power of district courts to order remands for 'new evidence' in Social Security cases." (citing Pub. L. 96-265, § 307, 94 Stat. 458)).
As already noted, see supra at 1, 42 U.S.C. § 1383(c) incorporates § 405(g), thereby incorporating the sixth sentence and the five-day rule.
Here, for reasons already stated, see supra at 14-15, Guyer has not established good cause for failing to submit the evidence timely, particularly given that the provider of this information was her treating physician. Cf. Fraser v. Astrue, No. CIV.A.06-4886, 2009 WL 948341, at *2 (E.D. Pa. Apr. 8, 2009) ("The letter from Dr. McClain, meanwhile, is not new evidence that was not in existence or available to the claimant at the time of the administrative proceeding because Dr. McClain, as plaintiff's treating doctor, could have provided a letter of this nature to plaintiff prior to the hearing in front of the ALJ." (emphasis added) (internal quotation marks omitted)), aff'd, 373 F. App'x 222 (3d Cir. 2010).
Furthermore, it was Guyer's responsibility to provide medical evidence that the ALJ could use to make an appropriate finding concerning her RFC assessment. While Guyer argues that the ALJ denied admission of the only evidence that supports her functional capabilities, the record contains substantial other objective medical evidence supporting the ALJ's RFC assessment. Based on the record, which includes Guyer's primary care physician's findings, see infra at 21, Guyer has failed to establish that there is a reasonable probability that the additional evidence would change the outcome of the decision.
Although not specifically mentioned by the ALJ, other records indicate that Dr. Milroth's opinions concerning the severity of Guyer's impairments were belied by results of testing ordered by Dr. Milroth himself. (See, e.g., Doc. 6-7, at 62 (finding, in part, normal height of vertebral bodies, unremarkable disc spacing, no evidence to indicate HNP or spinal stenosis, and minimal bulge of the disc at L5-S1 but no other evidence for abnormality)). It would therefore be speculative, at best, to conclude that the ALJ would credit Dr. Milroth's later conclusions to the extent of reevaluating the RFC assessment in Guyer's favor. This is particularly true given that the RCE was prepared by a physical therapist and the MSS is essentially a check-box form. See Hatton v. Comm'r of Soc. Sec. Admin., 131 F. App'x 877, 878 (3d Cir. 2005) (noting that a physical therapist is not an acceptable medical source" to whom the "rules for evaluating acceptable medical source statements" apply and that check-box forms constitute weak evidence.").
Relying on Doak v. Heckler, 970 F.2d 26 (3rd Cir. 1986), Guyer argues that the ALJ's analysis is patently flawed because his RFC determination "was not supported by medical assessment of any doctor in the record." (Doc. 7, at 14). However, as many courts have now observed, "the Doak opinion does not hold that an ALJ's RFC findings must be based on a specific medical opinion. Rather, the Court of Appeals in Doak held simply that nothing in that particular record supported the finding by the ALJ that the plaintiff could perform light work." See, e.g., Dahlkemper v. Colvin, No. CV 15-53-E, 2015 WL 9315743, at *1 (W.D. Pa. Dec. 23, 2015); see also Chapman v. Berryhill, No. 3:18-CV-723, 2018 WL 5279318, at *11 (M.D. Pa. Oct. 24, 2018) ("Focusing on whether substantial evidence supports the ALJ's decision in this case, the Court does not adopt a per se rule that the precise functional limitations found by the ALJ must be based on a medical opinion or specific medical finding."). It has also been noted that "[t]he Court of Appeals never suggested that a finding of ability to perform light work could only be made if an opinion in the record had clearly stated that the claimant could perform such work." Dahlkemper, 2015 WL 9315743, at *1. Thus, because more than a scintilla of evidence (e.g., Guyer's self-reports and medical records indicating normal findings on examination) supports the ALJ's RFC determination, Guyer's argument based on Doak is without merit as applied the instant record. See, e.g., Cummings v. Colvin, 129 F. Supp. 3d 209, 216, 216 n.2 (W.D. Pa. 2015) (marshaling and surveying case law to conclude that courts have "read Doak too broadly" and noting that in Doak, the record was not only "quite limited" but was also mischaracterized by the ALJ).
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S RFC ASSESSMENT
Guyer's remaining arguments are an attack on the ALJ's RFC assessment. The determination of an individual's RFC falls solely within the purview of the ALJ. 20 C.F.R. §§ 404.1546(c), 416.946(c); SSR 96-8P, 1996 WL 374184 (S.S.A. July 2, 1996). RFC means "that which an individual is still able to do despite the limitations caused by his or her impairment(s).'" Burnett, 220 F.3d at 121 (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)). It reflects the most that an individual can still do, despite his or her limitations, and is used at steps four and five to evaluative the claimant's case. 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8P, 1996 WL 374184 at *2. The Court's "review of the ALJ's assessment of the [claimant]'s RFC is deferential," and the "RFC assessment will not be set aside if it is supported by substantial evidence." Black v. Berryhill, No. 16-1768, 2018 WL 4189661 at *3 (M.D. Pa. Apr. 13, 2018); see also Martin v. Comm'r of Soc. Sec., 547 F. App'x 153, 160 (3d Cir. 2013) ("We examine the ALJ's conclusions as to a claimant's RFC with the deference required of the substantial evidence standard of review." (internal quotation marks omitted)).
In assessing a claimant's RFC, the ALJ must consider all the evidence of the record and, regardless of its source, "evaluate every medical opinion . . . receive[d]." Burnett, 220 F.3d at 121 (internal citations omitted); see 20 C.F.R. §§ 404.1527(c), 416.927(c); see also SSR 96-8P, 1996 WL 374182, at *2 ("RFC is assessed by adjudicators at each level of the administrative review process based on all of the relevant evidence in the case record, including information about the individual's symptoms and any 'medical source statements' . . . ."). Under the regulations, medical opinions are defined as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). If a conflict exists in the evidence, "the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). It is the duty of the ALJ to explain the rationale for the weight afforded to each medical opinion, as this allows for meaningful judicial review. Plummer, 186 F.3d at 429 ("The ALJ must consider all the evidence and give some reason for discounting the evidence that [the ALJ] rejects." (quoting Mason, 994 F.2d at 1066)).
Applying the above standard to the present record, the Court finds substantial evidence supporting the ALJ's determination that Guyer's statements and testimony concerning her limitations were not entirely consistent with medical and other evidence. While acknowledging corroborative evidence of Guyer's impairments generally, the ALJ considered several objective medical findings and Guyer's self-reports, both of which tended to undercut Guyer's subjective complaints concerning the severity of her impairments and the ways in which they limit her. For example, in September 2013, Guyer underwent an exam at Parkway Neuroscience and Spine Institute. (Doc. 6-8, at 6). There, Guyer reported that she was experiencing pain and numbness in her right leg and that the pain increased when she changed positions or remained in one position for too long. (Doc. 6-8, at 6). However, she stated that she had been prescribed Flexeril, a muscle relaxant, and Tramadol, an opioid narcotic, by her primary care provider to manage the pain, and she needed no additional procedures. (Doc. 6-2, at 23) (Doc. 6-8, at 6). A June 2014 physical examination at Cumberland Valley Rheumatology revealed normal findings, as the treating physician found non-tender neck and shoulders with no stiffness and five out of five upper extremity strength. (Doc. 6-2, at 22). Additionally, a June 2014 electromyography (EMG) of Guyer's upper extremities found the left wrist pain was consistent with carpal tunnel syndrome—for which she underwent surgery in 2004 (left hand) and again in either 2004 or 2006 (right hand)—with no evidence of cervical radiculopathy. (Doc. 6-2, at 23, at 53).
Later, in October 2014, Guyer reported an onset of new neck pain at a pain level of nine out of ten (ten being the most severe), the pain having gradually occurred since May 2014 and manifested as constant, sharp, dull, and throbbing, worse when she turned her head. (Doc. 6-8, at 11). However, she denied any pain radiating into the upper shoulders or arms, and treating physicians who examined her noted: (1) normal upper extremities; (2) cervical range of motion intact and pain free at end ranges; (3) no tenderness over the occipital nerves, paraspinal muscles, or trigger points; and (4) normal range of motion in the arms and shoulders. (Doc. 6-2, at 23). Subsequent examinations with neurology found improvement in reported pain levels, and Guyer continued to treat with physical therapy and epidural steroid injections, which provided some relief. (Doc. 6-2, at 23).
October and December 2014 neurology records reflect that Dr. Milroth, Guyer's primary care provider, was "keeping Guyer off work currently[.]" (Doc. 6-8, at 11) (Doc. 6-10, at 8). The ALJ afforded little weight to this notation because it (1) amounted to a determination concerning Guyer's ability to work, a determination that is reserved to the ALJ, and appeared to be based on Guyer's "reporting to neurology that [Dr. Milroth] was keeping her off work and not directly from [Dr. Milroth]"; and (2) lacked support in Dr. Milroth's and neurology's objective clinical examination findings of generally mild symptoms of pain with palpation that required routine and conservation care. (Doc. 6-2, at 24). Moreover, it was not until April 2016 that Guyer reported to neurology her neck problems and their interference with daily activities, whereas Guyer reported pain issues were largely controlled by September 2016 following surgery. (Doc. 6-2, at 24).
During a February 2016 neurology examination, Guyer reported that her neck pain had worsened and was affecting her daily activities, stating that she experienced pain when turning her head and that the pain radiated down her left and right arms. (Doc. 6-2, at 23). Nevertheless, Guyer underwent an anterior discectomy and fusion at C5-6 and C6-7 in May 2015, a follow-up examination for which showed that her neck pain was largely controlled and that she did not need to undergo additional procedures to the cervical spine, e.g., steroid injections. (Doc. 6-2, at 23). She was directed to continue taking Flexeril and Tramadol for muscle tension and pain. (Doc. 6-2, at 23).
Additionally, while Guyer alleged disability because she could lift no more than five pounds, she reported being able to carry grocery bags from her vehicle (approximately fifteen feet from the home) into her home, with each bag weighing approximately ten pounds, and lifting her thirty-pound grandchild to her lap. (Doc. 6-2, at 23). She reported that her daily activities include assisting her daughter with household chores, including laundry and cooking, and maintaining her yard, including mowing the lawn and picking things up from the ground. (Doc. 6-2, at 60-61). She is capable of caring for her grandchildren several hours each morning until her daughter wakes up, drive a vehicle, and shop. (Doc. 6-2, at 23). Further, although Guyer reported needing to change positions every couple of minutes while sitting, the ALJ found this to be an overestimation because the ALJ did not observe such significant difficulties throughout the hearing. (Doc. 6-2, at 23).
Given the objective medical evidence and Guyer's self-reported ability to engage in various activities, the Court finds that the ALJ's RFC assessment is supported by substantial evidence. Lacking authority to reevaluate and conduct a de novo review of the ALJ's determination and assessment of the evidence, the Court is therefore compelled to recommend affirming the ALJ's decision to deny Guyer's claims.
V. RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision be AFFIRMED, that final judgment be entered in favor of the Commissioner and against Geldreich, and that the Clerk of Court be directed to CLOSE this case.
Dated: January 15, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge KAREN MARIE GUYER, Plaintiff, v. ANDREW SAUL, Defendant. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 15, 2020.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: January 15, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge