Opinion
Civil Action 3:22-cv-01029
08-18-2023
STEPHEN R. KOZICK, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
The plaintiff, Stephen R. Kozick, brought this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security denying a claim for supplemental security income under Title XVI of the Social Security Act (the “Act”). This matter has been referred to the undersigned United States magistrate judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be affirmed.
I. Background
On November 27, 2019, Kozick protectively filed an application for supplemental security income, asserting a disability onset date of November 4, 2017. His claim was initially denied by state agency reviewers on July 31, 2020, and upon reconsideration on November 18, 2020. The plaintiff then requested an administrative hearing.
A telephone hearing was held on May 5, 2021, before an administrative law judge, Richard E. Guida (the “ALJ”). In addition to the plaintiff himself, the ALJ received testimony from an impartial vocational expert, Joseph Goodman. The plaintiff was represented by counsel at the hearing.
On July 7, 2021, the ALJ denied Kozick's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Kozick was not disabled under the Social Security Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Kozick had not engaged in substantial gainful activity since his application date. At step two, the ALJ found that Kozick had the severe impairments of: bipolar disorder and anxiety.
At step three, the ALJ found that Kozick did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. In doing so, the ALJ considered Kozick's limitations in four broad functional areas as a result of his mental disorders, finding no more than moderate limitations in any of the four functional areas. See generally 20 C.F.R. § 416.920a(c) (explaining functional limitation rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas of mental functioning); id. § 12.00(F) (explaining process for using paragraph B criteria to evaluate mental impairments). In connection with listings 12.04 and 12.06, the ALJ also considered whether Kozick's mental disorders were “serious and persistent,” finding that the evidence failed to establish a minimal capacity to adapt to changes in his environment or to demands that were not already part of his daily life. See generally id. § 12.00(G) (explaining process for using alternative paragraph C criteria to evaluate certain mental impairments).
These four areas are: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. The ALJ found moderate limitations in Kozick's ability to interact with others and his ability to adapt or manage himself, but only mild limitations in Kozick's ability to concentrate, persist, or maintain pace, and no limitation in his ability to understand, remember or apply information. (Tr. 19.)
Between steps three and four of the sequential-evaluation process, the ALJ assessed Kozick's residual functional capacity (“RFC”). See generally Myers, 373 F.Supp.3d at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Kozick had the RFC to perform the full range of work at all exertional levels, as defined in 20 C.F.R. § 416.967, with the following non-exertional limitations:
[H]e is limited to simple and routine tasks, involving only simple, work-related decisions, and with few, if any, work place changes. He cannot perform production pace work. He can have only occasional interaction with supervisors, coworkers, and the public.(Tr. 20.)
In making these factual findings regarding Kozick's RFC, the ALJ considered his symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 416.929; Soc. Sec. Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive he found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 416.920c.
At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that Kozick was unable to perform his past relevant work as an administrative clerk, as actually or generally performed.
At step five, the ALJ concluded that Kozick was capable of performing other work that exists in significant numbers in the national economy. Based on his age, education, work experience, and RFC, and based on testimony by the vocational expert, the ALJ concluded that Kozick was capable of performing the requirements of representative occupations such as routing clerk (DOT # 222.587-038), cleaner (DOT # 323.687-014), and sorting clerk (DOT # 222.687-022). Based on this finding, the ALJ concluded that Kozick was not disabled for Social Security purposes.
The plaintiff sought further administrative review of his claims by the Appeals Council, but his request was denied on May 24, 2022, making the ALJ's July 2021, decision the final decision of the Commissioner subject to judicial review by this court.
The plaintiff timely filed his complaint in this court on June 30, 2022. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.
II. Discussion
Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability insurance benefits and supplemental security income administrative decisions).
Kozick asserts on appeal that the ALJ's decision is not supported by substantial evidence because: (1) the ALJ failed to properly evaluate the medical opinion of an examining nurse practitioner, Karenna Hammon, N.P.; (2) the ALJ failed to properly evaluate the medical opinion of Kozick's treating psychiatrist, Christian Kcomt, M.D.; (3) the ALJ found certain of Kozick's physical impairments “not severe” at step two of the five-step sequential evaluation process, despite compelling evidence to the contrary; (4) the ALJ erred in failing to order a consultative psychological examination; and (5) the ALJ failed to properly consider subjective evidence regarding Kozick's symptoms, including statements or testimony by Kozick himself.
The plaintiff articulated six separate claims of error in his brief. We have consolidated two of them-a claim concerning the ALJ's finding that Kozick's transitory abdominal pain and mild hand tremor were not severe impairments and a claim concerning the ALJ's failure to identify the plaintiff's auditory hallucinations as a severe impairment.
A. Medical Opinions and Prior Administrative Findings
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ erred in his evaluation of conflicting medical opinions and prior administrative findings presented in the administrative proceedings below. As a preface, we note the well-established principle that, in evaluating the medical opinion evidence of record, an “ALJ is not only entitled, but required to choose between” conflicting medical opinions. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent [an ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). Moreover, “[i]n the process of reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute [our own] conclusions for those of the fact-finder.'” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). Ultimately, to reverse the ALJ's findings and decision, “we must find that the evidence not only supports [a contrary] conclusion, but compels it.” Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see also Smith v. Chater, 99 F.3d 780, 782 & n.3 (6th Cir. 1996) (citing Elias-Zacarias in the context of social security disability benefits); Hert v. Barnhart, 234 F.Supp.2d 832, 837 (N.D. Ill. 2002) (“The court may reverse the Commissioner's decision only if the evidence ‘compels' reversal, not merely because the evidence supports a contrary decision.”) (citing Elias-Zacarias).
Here, the plaintiff originally filed his administrative claim for benefits in November 2019. Thus, a relatively new regulatory framework governing the evaluation of medical opinion evidence applies to this case. “The new regulations have been described as a ‘paradigm shift' in the way medical opinions are evaluated.” Knittle v. Kijakazi, Civil No. 1:20-CV-00945, 2021 WL 5918706, at *4 (M.D. Pa. Dec. 15, 2021). “Prior to March 2017, ALJs were required to follow regulations which defined medical opinions narrowly and created a hierarchy of medical source opinions with treating sources at the apex of this hierarchy.” Densberger v. Saul, Civil No. 1:20-CV-772, 2021 WL 1172982, at *7 (M.D. Pa. Mar. 29, 2021). Under this prior regulatory scheme, the Social Security Administration “followed the ‘treating physician rule,' which required the agency to give controlling weight to a treating source's opinion, so long as it was ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and not ‘inconsistent with the other substantial evidence' in the record.” Michelle K. v. Comm'r of Soc. Sec., 527 F.Supp.3d 476, 481 (W.D. Pa. 2021). However, the regulations governing the evaluation of medical evidence were amended and the treating physician rule was eliminated effective March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5,844 (Jan. 18, 2017); see also Densberger, 202 WL 1172982, at *7-*8; Michelle K, 527 F.Supp.3d at 481. “The range of opinions that ALJs were enjoined to consider were broadened substantially and the approach to evaluating opinions was changed from a hierarchical form of review to a more holistic analysis.” Densberger, 2021 WL 1172982, at *7.
Under these new regulations, the agency “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 [the claimant's] medical sources.” 20 C.F.R. § 416.920(c)(a). “Rather than assigning weight to medical opinions, [an ALJ] will articulate ‘how persuasive' he or she finds the medical opinions.” Knittle, 2021 WL 5918706, at *4; see also 20 C.F.R. § 416.920c(b). If a medical source provides one or more medical opinions, the agency will consider those medical opinions from that medical source together using the following factors: “(1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that ‘tend to support or contradict a medical opinion or prior administrative medical finding.'” Michelle K., 527 F.Supp.3d at 481; see also 20 C.F.R. § 416.920c(a); Densberger, 2021 WL 1172982, at *8. Under the new regulations, “[t]he two ‘most important factors for determining the persuasiveness of medical opinions are consistency and supportability,' which are the ‘same factors' that formed the foundation of the treating source rule.” Densberger, 2021 WL 1172982, at *8; see also 20 C.F.R. § 416.920c(b)(2); Michelle K., 527 F.Supp.3d at 481; compare 20 C.F.R. § 416.920c(c)(1) (supportability), and id. § 416.920c(c)(2) (consistency), with id. § 416.9927c(3) (supportability), and id. § 416.927(c)(4) (consistency).An ALJ is specifically required to address these two factors in his or her decision. See 20 C.F.R. § 416.920c(b)(2); see also Densberger, 20211172982, at *8; Michelle K., 527 F.Supp.3d at 482. “The ALJ may-but is not required to-explain how he considered the remaining factors.” Michelle K., 527 F.Supp.3d at 482; see also 20 C.F.R. § 416.920c(b)(2); Densberger, 2021 WL 1172982, at *8. “However, when the ALJ has found two or more medical opinions to be equally well supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered [the remaining] factors ....” Densberger, 2021 WL 1172982, at *8; see also 20 C.F.R. § 416.920c(b)(3); Michelle K., 527 F.Supp.3d at 482.
With respect to supportability, the new regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(1). With respect to consistency, the new regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. § 416.920c(c)(2).
1. Prior Administrative Findings
The ALJ considered the prior administrative findings in this case, finding them to be “persuasive.” (Tr. 21-22.)
These prior administrative findings included the opinions of two state agency medical consultants, Varsha Lift, M.D., and Carl William Ritner, D.O., both of whom, based on their respective review of Kozick's medical records, found that the plaintiff had no severe physical impairments at all. (Tr. 88; Tr. 103-04.)
These prior administrative findings also included the opinions of two state agency psychological consultants, Edward Jonas, Ph.D., and Thomas Fink, Ph.D. Both psychologists agreed that Kozick had moderate limitations in two of the four broad mental functional areas (interacting with others and adapting or managing oneself), mild limitations in a third area (concentrating, persisting, or maintaining pace), and no limitations in the fourth area (understanding, remembering, or applying information). The two state agency psychological consultants evaluated Kozick's mental residual functional capacity as well, finding that Kozick was subject to moderate limitations in his ability to interact appropriately with the general public, his ability to accept instructions and respond appropriately to criticism from supervisors, and his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. They also found that Kozick had moderate limitations in his ability to respond appropriately to changes in the work setting. They found no other functional limitations. (Tr. 88-90, 91-92; Tr. 104-05, 107-10.)
In evaluating these state agency consultant medical opinions, the ALJ noted that the physicians' opinions were consistent with the plaintiff's function report, which failed to note any issues with lifting, squatting, bending, standing, reaching, or kneeling. The ALJ further found that the psychologists
relied upon the claimant's bipolar disorder and anxiety when making the[ir] assessments, and the medical record establishes these restrictions. While the claimant treated with a psychiatrist, his record did not contain many findings, which naturally led to a lack of objective medical evidence to establish more than moderate mental limitations. In understanding, remembering or applying information, he prepared his own meals, drove,
mowed the lawn, cleaned, vacuumed, and did laundry. His record lacked any mention of memory loss or cognitive dysfunction. Additionally, he could follow written instructions well. Socially, he was very anxious at appointments. He was also irritable. However, he could go out alone and shop in stores for groceries, which required some degree of social interaction. He reportedly visited with family and friends. He exhibited normal behavior. He was also pleasant and cooperative with providers. With regard to attention and concentration, he watched television and played video games, which required some degree of attention and concentration. His record lacked any mention of distractibility or loss of focus. He also had a goal directed thought process. As for adaptation, he had a remote history of hospitalization due to suicidal ideation. He also reported auditory hallucinations. However, his function report failed to indicate any problems with personal care, and he did not require any special reminders to take care of personal needs and grooming or taking medicine. Bupropion improved/controlled his hallucination symptoms. His thought content was negative for suicidal/homicidal ideation and auditory/visual hallucinations. He had normal judgment and insight. Moreover, he was alert and oriented to person, place, and time.(Tr. 21-22 (citations omitted).) Based on the foregoing, the ALJ found the opinions of these state agency medical and psychological consultants to be persuasive. (Id.)
The plaintiff has not challenged the ALJ's evaluation of these prior administrative findings.
2. Examining Nurse Practitioner Opinion
On July 15, 2020, Kozick was seen and examined by a consultative examining nurse practitioner, Karena Hammon, N.P. On examination, NP Hammon observed that Kozick was in no acute distress, with normal gait and stance, able to squat fully and walk on heels and toes without difficulty. She noted that he brought no assistive device to the exam, needed no help getting on and off the exam table, and he was able to rise from a chair without difficulty. On examination of his chest and lungs, NP Hammon recorded normal findings with respect to anteroposterior diameter, auscultation, and percussion. On examination of his heart, NP Hammon recorded normal findings with respect to rhythm and point of maximum impulse, with no murmur, gallop, or rub audible. On examination of Kozick's abdomen, NP Hammon found bowel sounds to be normal, his abdomen to be soft and nontender, with no hepatosplenomegaly or masses and no abdominal bruits. NP Hammon found no scoliosis, kyphosis, or abnormality of the thoracic spine, no evident joint deformity, stable and nontender joints, and no redness, heat, or effusion. Kozick's straight leg raise was negative bilaterally, both seated and supine. NP Hammon found physiologic and equal deep tendon reflexes in upper and lower extremities, no sensory deficits, and 5/5 strength in the upper and lower extremities. NP Hammon found no cyanosis, clubbing, or edema of the extremities, physiologic and equal pulses, no significant varicosities or trophic changes, and no evident muscle atrophy. Although she noted that Kozick presented with a mild essential tremor in his right hand, which was being treated with propranolol, she found 5/5 hand strength bilaterally and a range of motion within normal limits. NP Hammon recorded diagnoses of asthma, mild essential tremor of the right hand, manic disorder, depression, auditory hallucinations, bipolar type II, hypomanic psychosis, anxiety, and psychotic episodes, with a good prognosis.(Tr. 342-45, 352-55.)
We note that, although NP Hammon recorded multiple mental health diagnoses, her encounter with Kozick was limited to a physical examination. She did not conduct a mental examination and recorded no other findings with respect to Kozick's mental health conditions or mental functional abilities.
NP Hammon also completed an agency form report on Kozick's ability to do work-related activities. She opined that Kozick was capable of lifting up to 10 pounds continuously and 100 pounds frequently, and he was capable of carrying up to 20 pounds frequently and up to 100 pounds occasionally. NP Hammon found that Kozick was capable of sitting up to 4 hours without interruptions and up to 5 hours total per 8-hour workday, standing up to 2 hours without interruption and up to 3 hours total per 8-hour workday, and walking up to 1 hour without interruption and up to 2 hours total per 8-hour workday. She noted that Kozick did not use a cane to ambulate. Notwithstanding his mild essential tremor of the right hand, NP Hammon found no manipulative limitations whatsoever with respect to Kozick's use of hands or feet. NP Hammon found that Kozick was limited to frequent climbing of ramps and stairs, but she found no other postural limitations.NP Hammon found that Kozick was subject to certain environmental limitations, including no exposure to humidity and wetness, extreme cold or heat, dust, odors, fumes, and pulmonary irritants, or very loud noises (e.g., a jackhammer), and no more than frequent exposure to vibrations. NP Hammon found no other limitations due to Kozick's physical impairments. (Tr. 346-51.)
We note that this included an express finding that Kozick was capable of continuous climbing of ladders and scaffolds.
In evaluating the opinion of NP Hammon, the ALJ found that, although her findings included some exertional, postural and environmental limitations, her opinion was unsupported because
Ms. Hammon's examination reflected no physical restrictions. He exhibited a normal gait and stance, and he could walk on his heels and toes without difficulty. He could fully squat. Her musculoskeletal, neurological, chest/lung, heart, abdominal, and extremity reviews were normal. Moreover, the longitudinal evidence of record consistently indicated that he ambulated with a normal gait.(Tr. 22 (citations omitted).) Based on the foregoing, the ALJ found the opinion of this consultative examining nurse practitioner to be unpersuasive. (Id.)
Here, the ALJ properly considered the medical evidence of record and the relevant factors of supportability and consistency. He expressly articulated the basis of his evaluation and his findings with respect to the persuasiveness of this opinion as well.
The plaintiff argues that the ALJ misread or misconstrued NP Hammon's opinion, leading him to omit certain exertional limits from his RFC determination. The plaintiff argues that NP Hammon found him to be limited to lifting 10 pounds frequently and carrying 20 pounds frequently-which corresponds to light exertional work, see 20 C.F.R. § 416.967(b)-and thus the ALJ erred in finding that he had the RFC to perform a full range of work at all exertional levels. But it is the plaintiff who misreads or misconstrues NP Hammon's findings. Although NP Hammon did find Kozick capable of carrying up to 20 pounds frequently, she unambiguously found him capable of lifting up to 100 pounds frequently. The only 10-pound limit in her opinion was a limitation to lifting up to 10 pounds continuously-i.e., for more than two-thirds of an 8-hour workday. (See Tr. 346.) Regardless, for the reasons articulated by the ALJ and quoted above, the ALJ found NP Hammon's opinion unpersuasive because it was unsupported and inconsistent with other evidence of record, including medical opinions by state agency medical consultants finding that Kozick had no physical functional limitations whatsoever.
Accordingly, we find the ALJ's evaluation of the opinion of examining nurse practitioner Hammon is supported by substantial evidence and was reached based upon a correct application of the relevant law.
3. Treating Psychiatrist Opinion
On January 11, 2021, Kozick's treating psychiatrist, Christian Kcomt, M.D., completed a medical source statement of ability to do work- related activities (mental). Dr. Kcomt reported diagnoses of extreme anxiety, extreme mood instability, and extreme paranoia. He opined that, based on these mental impairments, Kozick had extreme limitations in in his ability to understand, remember, or carry out simple or complex instructions and his ability to make judgments on simple or complex work-related decisions. Based on these same mental impairments, Dr. Kcomt further opined that Kozick had extreme limitations in his ability to interact appropriately with supervisors, co-workers, or the public and his ability to respond appropriately to usual work situations and to changes in a routine work setting. Dr. Kcomt also reported that Kozick's mental impairments had rendered him unable to cope with stress, and he opined that Kozick was incapable of managing disability benefits in his own best interests. (Tr. 461-63.)
In evaluating Dr. Kcomt's medical opinion, the ALJ stated that:
Christian Kcomt, M.D., a treating provider, opined tht the claimant had extreme mental restrictions in all areas of mental functioning. Dr. Kcomt based this opinion on the claimant's anxiety; however, the longitudinal evidence of record, including Dr. Kcomt's own findings, did not establish this degree of limitation. Dr. Kcomt's notes reflected that the claimant exhibited normal behavior. He had a goal directed thought process. His thought content was negative for suicidal/homicidal ideation and auditory/visual
hallucinations. He had normal judgment and insight. He was also alert and oriented to person, place, and time. Moreover, Dr. Kcomt noted that the claimant suffered from extreme paranoia, extreme mood instability, and a total inability to cope with stre[ss]; however, these symptoms were not reflected in the record. Thus, the undersigned finds this opinion unpersuasive.(Tr. 22 (citations omitted).)
Here, the ALJ properly considered the medical evidence of record and the relevant factors of supportability and consistency. He expressly articulated the basis of his evaluation and his findings with respect to the persuasiveness of this opinion as well. The plaintiff quibbles with the ultimate outcome of the ALJ's evaluation of Dr. Kcomt's opinion, arguing that various factors support a contrary conclusion, but it is clear that the ALJ's findings with respect to Dr. Kcomt's opinion are supported by substantial evidence.
Accordingly, we find the ALJ's evaluation of the medical opinions of the plaintiff's treating psychiatrist, Dr. Kcomt, is supported by substantial evidence and was reached based upon a correct application of the relevant law.
B. Step Two Determination
The plaintiff contends that the ALJ erred in finding that certain medical conditions were not severe impairments.
At step two, the ALJ found that Kozick had two severe impairments: bipolar disorder and anxiety. The ALJ considered several other alleged impairments, including abdominal pain and hand tremors, but found them to be non-severe. With respect to these two alleged impairments, the ALJ stated:
The claimant's abdominal pain did not more than minimally affect his ability to work. Upon his examination, his abdomen was nontender without rebound or guarding. His bowel sounds were normal, and he reported normal bowel movements. An August 2020 CT showed no evidence of acute pancreatitis, and a contemporaneous gastric biopsy revealed only minimal chronic inflammation. An ultrasound showed a normal pancreatic duct. September 2020 provider notes indicated that his abdominal pain was improving. Treatment was conservative with a modified diet and Bentyl. March 2021 records indicated that his abdominal pain had resolved. He also drank wine daily, which is inconsistent with severe abdominal pain. Accordingly, the undersigned finds this impairment nonsevere.
The claimant's alleged hand tremors did not more than minimally affect the claimant's ability to perform basic work functions. Providers and the claimant described his tremors as mild. He had 5/5 grip strength bilaterally. He drove and played video games, which typically requires constant use of one's hands. Providers also noted normal coordination. Thus, the undersigned finds this impairment nonsevere.(Tr. 18 (citations omitted, emphasis added).) The ALJ did not consider the plaintiff's complaints of auditory hallucinations as a separate medically determinable impairment. The ALJ then proceeded on to step three of the five-step sequential evaluation process.
At step two, a claimant bears the burden of proving that she suffers from “a medically severe impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). But the step-two inquiry is merely “a de minimis screening device to dispose of groundless claims.” Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “[T]he analysis at step two is wholly independent of the analysis at later steps.... [N]ot finding certain impairments severe at step two does not affect the ultimate disability determination.” Alvarado v. Colvin, 147 F.Supp.3d 297, 311 (E.D. Pa. 2015); see also Orr v. Comm'r Soc. Sec., 805 Fed. App'x 85, 88 (3d Cir. 2020) (“[B]ecause the ALJ progressed to a later step, any error at Step Two would not alter that remainder of the five-step process, much less the overall outcome.”); Ray v. Berryhill, 915 F.3d 486, 492 (7th Cir. 2019) (per curiam) (“Step two is a threshold inquiry; so long as one of a claimant's limitations is found to be severe, error at that step is harmless.”); Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 145 n.2 (3d Cir. 2007) (“Because the ALJ found in [the claimant's] favor at Step Two, even if he had erroneously concluded that some other impairments were nonsevere, any error was harmless.”).
Here, the ALJ found in Kozick's favor at step two, finding that he had other severe impairments, and then proceeded on to step three of the five-step sequential evaluation process. Thus, any error with respect to evaluation of the severity of other impairments at step two was harmless and provides “no valid basis for remand.” See Orr, 805 Fed. App'x at 88. Moreover, based on the medical evidence cited by the ALJ in explaining his decision on these alleged impairments, it is clear that there was substantial evidence to support the ALJ's finding that Kozick's transitory abdominal pain and mild hand tremors were non-severe impairments.
The plaintiff also argues that the ALJ erred by not considering his auditory hallucinations as a separate, severe impairment. But, generally, auditory hallucinations are a symptom, not an impairment. Compare Soc. Sec. Ruling 96-4p, 1996 WL 374187, at *1 (“A ‘symptom' is not a ‘medically determinable physical or mental impairment' and no symptom by itself can establish the existence of such an impairment.”), with Id. (“An ‘impairment' must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques.”); cf. Swarrow v. Colvin, No. 2:13-cv-01060, 2014 WL 3420429, at *11 (W.D. Pa. July 14, 2014) (distinguishing between pain as a symptom and the claimant's underlying impairment of degenerative disc disease). Once an ALJ determines that the claimant has a medically determinable impairment that can reasonably be expected to produce the a subjective symptom, such as auditory hallucinations-e.g., bipolar disorder in this case-the ALJ must go on to evaluate the intensity and persistence of the claimant's subjective symptoms, along with the other evidence of record, when deciding whether the impairment is severe and when assessing a claimant's RFC. See 20 C.F.R. § 416.929; Soc. Sec. Ruling 96-4p, 1996 WL 374187, at *2. As previously noted, any omission of these symptoms from the discussion at step two was harmless, as the ALJ found other severe impairments-bipolar disorder and anxiety-and proceeded on to step three of the five-step sequential evaluation process. With respect to step three and determination of Kozick's RFC, the ALJ's discussion evidences extensive discussion of auditory hallucinations as a sign or symptom of the plaintiff's established severe mental impairments. (See Tr. 19 (discussing auditory hallucinations at step three); Tr. 20 (discussing subjective complaints of auditory hallucinations in considering the claimant's symptoms and determining his RFC); Tr. 21 (discussing medical treatment notes concerning the plaintiff's complaints of auditory hallucinations and his subsequent reports to medical providers that medication had improved or controlled these symptoms); Tr. 21-22 (discussing medical opinions addressing auditory hallucinations as a symptom reported by the claimant and reportedly improved or controlled by medication treatment). Moreover, based on the medical evidence cited by the ALJ in explaining his step three and RFC determinations, the plaintiff reported to his primary care physician in December 2020 that he had recently been suffering from “worsening auditory hallucinations” or irritating “background noise,” but his treating psychiatrist had placed him on bupropion, which improved and controlled his symptoms. (Tr. 586 (family physician treatment note); see also Tr. 468 (Nov. 23, 2020, psychiatrist treatment note noting the addition of Wellbutrin XL to medications).)
See generally 20 C.F.R. pt. 404, subpt. P, app. 1, §12.00(B)(2) (including hallucinations when discussion symptoms and signs of psychotic disorders); 2 Dan J. Tennenhouse, Attorneys Medical Deskbook § 25:86, Westlaw (database updated Oct. 2022) (including psychosis characterized by hallucinations when discussing other findings that support a diagnosis of bipolar disorder).
Accordingly, we find the ALJ's determination at step two and his subsequent consideration of the plaintiff's transitory abdominal pain, mild hand tremor, and auditory hallucinations at step three and in his RFC analysis is supported by substantial evidence and was reached based upon a correct application of the relevant law.
C. Consultative Psychological Examination
The plaintiff contends that the ALJ should have obtained a consultative psychological examination of Kozick. The agency's regulations provide that it “may purchase a consultative examination to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to support a determination or decision on [a] claim.” 20 C.F.R. § 416.919a(b). An ALJ has “broad latitude in ordering consultative examinations.” Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997).
The decision to order a consultative examination is within the sound discretion of the ALJ unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision. Where the medical evidence in the record is inconclusive, a consultative examination is often
required for proper resolution of a disability claim.Chalfant v. Comm'r of Soc. Sec., Civil Action No. 4:20-CV-1719, 2022 WL 838118, at *5 (M.D. Pa. Mar. 21, 2022) (citations, internal quotation marks, and brackets omitted). In this case, however, while the medical evidence may not compel the conclusions the plaintiff desires, it is not inconclusive. Because a consultative psychological examination was not necessary to enable the ALJ to make his disability decision, we find no abuse of discretion in the ALJ's decision not to order one.
Accordingly, we find that the ALJ adequately developed the record in the administrative proceedings below. Thus, a remand on this ground is not warranted.
D. Subjective Evidence of the Plaintiff's Symptoms
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ erred in his evaluation of Kozick's symptoms. See generally 20 C.F.R. § 416.902(n) (“Symptoms means your own description of your physical or mental impairment.”).
Standing alone, a claimant's allegation of pain or other symptoms is not enough to establish an impairment or disability. 20 C.F.R. § 416.929(a); Prokopick v. Comm'r of Soc. Sec., 272 Fed. App'x 196, 199 (3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of disability solely on a claimant's statements about disabling pain ....”). “An ALJ is permitted to reject a claimant's subjective testimony as long as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed. App'x at 199 (citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999)).
When evaluating a claimant's subjective allegations of pain or other symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must determine whether there is a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Id. at *3; see also 20 C.F.R. § 416.929(b). A claimant cannot be found to be “disabled based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *4.
Once the ALJ has found that a medically determinable impairment has been established, the ALJ must then evaluate the claimant's allegations about the intensity, persistence, or functionally limiting effects of his or her symptoms against the evidence of record. Id. This evaluation requires the ALJ to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
Here, in evaluating the plaintiff's symptoms, the ALJ expressly considered and extensively discussed both the medical and non-medical evidence in the record. (Tr. 20-22.) This included the plaintiff's statements and testimony regarding the limiting effects of his symptoms. Based on his consideration of the whole record, the ALJ properly concluded that, while Kozick's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 20.)
The plaintiff argues, in cursory fashion, that the ALJ failed to adequately cite contrary medical evidence in support of his determination that Kozick's subjective complaints of symptoms were not fully consistent with the other evidence of record. But it is the exclusive province of the ALJ, not this court, to resolve conflicting evidence. “In the process of reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute our own conclusions for that of the fact-finder.'” Rutherford, 399 F.3d at 552 (quoting Williams, 970 F.2d at 1182); see also Stancavage v. Saul, 469 F.Supp.3d 311, 334 (M.D. Pa. 2020). Moreover, it is well settled that an ALJ is not required to discuss every detail of the record evidence cited in his opinion. See Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008). “A written evaluation of every piece of evidence is not required, as long as the ALJ articulates at some minimum level her analysis of a particular line of evidence. Moreover, the ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it.” Philips v. Barnhart, 91 Fed. App'x 775, 780 n.7 (3d Cir. 2004) (citation omitted).
The plaintiff's argument also bootstraps on his challenge to the ALJ's evaluation of Dr. Kcomt's medical opinion. But, as discussed above, the ALJ's analysis of that medical opinion is supported by substantial evidence and was reached based upon a correct application of the relevant law.
Kozick quibbles with the outcome of the ALJ's analysis of the evidence of record, but it is clear that the ALJ properly evaluated the plaintiff's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding the plaintiff's subjective complaints of pain and other symptoms, the evidence as a whole did not support physical or mental limitations in excess of those set forth in the ALJ's RFC determination. While this same evidence might have also reasonably supported the adoption of substantially greater limitations, it did not compel such a finding.
Accordingly, we find the ALJ's evaluation of the subjective evidence of the plaintiff's symptoms is supported by substantial evidence and was reached based upon a correct application of the relevant law.
III. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Kozick was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, it is recommended that the decision of the Commissioner of Social Security be AFFIRMED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 18, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.