Opinion
Civil Action 4:20-CV-1406
03-01-2022
MELISSA MOLINA, Plaintiff v. KILOLO KIJAKAZI, [1] Defendant
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
Plaintiff Melissa Molina, an adult individual who resides in the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On April 19, 2018, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 15). In this application, Plaintiff alleged she became disabled on May 16, 2017, when she was forty-six years old, due to the following conditions: high blood pressure, depression, bipolar, anxiety, nervousness, trouble thinking, leg spasms, emotional disorder, and eye trouble. (Admin. Tr. 239). Plaintiff alleges that the combination of these conditions affects her ability to walk, sit, climb stairs, see, remember things, complete tasks, concentrate, understand, follow instructions, and use her hands. (Admin. Tr. 256). Plaintiff has at least a high school education. (Admin. Tr. 27). Before the onset of her impairments, Plaintiff worked as an order clerk. (Admin. Tr. 26).
On August 22, 2018, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 15). On September 28, 2018, Plaintiff requested an administrative hearing. Id.
On May 22, 2019 (“First Hearing”) and June 26, 2019 (“Second Hearing”), Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Richard Zack (the “ALJ”). (Admin. Tr. 15). A vocational expert testified at Plaintiff's First Hearing, a medical expert testified at Plaintiff's Second Hearing. Id. On July 19, 2019, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 28). On September 18, 2019, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 220).
On June 8, 2020, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1).
On August 7, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Doc. 1). As relief, Plaintiff requests that the Court award benefits, or in the alternative remand this case to the Commissioner to conduct a new administrative hearing. Id.
On December 30, 2020, the Commissioner filed an Answer. (Doc. 11). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. Id. Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 13), the Commissioner's Brief (Doc. 15) have been filed. Plaintiff did not file a reply. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals.
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
“In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on July 19, 2019
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4). Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
Having reviewed the applicable legal standards, I now turn to the merits of Plaintiff's claims.
IV. DISCUSSION
Plaintiff raises the following issues in her statement of errors:
1. The Administrative Law Judge erred in failing to evaluate the evidence of record and the corroborating testimony of the Plaintiff and medical Expert witness Gurdial N. Singh, M.D., and did not appropriately assess the Plaintiff's limitations according to SSR 16-3p.
2. The Administrative Law Judge failed to give an adequate rationale when rejecting the treating and examining source opinions and the Administrative Law Judge failed to five proper consideration to treating and examining source opinions pursuant to the provisions of 20 C.F.R. 416.927 and 404.1527(d), as well as Social Security Rulings 96-2p and 96-5p,
3. In so rejecting the treating and examining source opinions, the Administrative Law Judge improperly assessed the vocational abilities of the Plaintiff in response to the testimony of the Vocational Expert who testified at the hearing.(Doc. 13, pp. 2-3).
I construe the arguments in the statement of errors as follows:
1. The ALJ failed to properly evaluate Plaintiff's statements about her symptoms and limitations in violation of SSR 16-3p.
2. The ALJ did not apply the treating source rule articulated in 20 C.F.R. § 404.1527(c)(2).
3. The ALJ's hypothetical questions failed to convey all of Plaintiff's credibly established limitations to the VE.
Although Plaintiff cites to SSRs 96-2 and 96-5, these rulings were rescinded on March 27, 2017, before Plaintiff filed her application and before the ALJ decision was issued. See Recission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 2017
A. The ALJ's Decision Denying Plaintiff's Application
In his July 2019 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through September 30, 2018. (Admin. Tr. 17). Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between May 16, 2017 (Plaintiff's alleged onset date) and September 30, 2018 (Plaintiff's date last insured) (“the relevant period”). Id.
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: bipolar disorder with depression and psychotic features, generalized anxiety disorder, and panic disorder with agoraphobia. (Admin. Tr. 17-18). The ALJ also identified the following medically determinable non-severe impairments: hyperlipidemia, dyslipidemia, obesity, gastroesophageal reflux disease, prediabetic syndrome, hypothyroidism, plantar fasciitis of the left foot, hyperopia and subjective visual disturbance, diarrhea, anemia, hematochezia, and refl[u]x and Barrett's esophagus without dysplasia. Id.
At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 18).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in all ranges of work work as defined in 20 C.F.R. § 404.1567 except:
The claimant could not sustain a highly detailed or complex occupation. The claimant has a baseline ability to understand, remember and carry out simple instructions and to make simple work-related decisions. The claimant would have difficult working at a job that would require direct contact with the public on a continuous or frequent basis. The claimant could have occasional contact with coworkers, supervisors and the public and respond appropriately. The claimant would be able to respond appropriately to any changes that would typically take place in a simple, routine, repetitive type job.(Admin. Tr. 20).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in her past relevant work. (Admin. Tr. 26).
At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 27-28). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's first administrative hearing and cited the following three (3) representative occupations: hand packer DOT #920.587-018; extrusion operator DOT #614.685-014; and sorter DOT #222.687-022. Id.
B. Whether The ALJ's Evaluation of Plaintiff's Testimony Is Supported by Substantial Evidence
The Commissioner's regulations define “symptoms” as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502(i). The ALJ is not only permitted, but also required, to evaluate the credibility of a claimant's statements about all symptoms alleged and must decide whether and to what extent a claimant's description of his or her impairments may be deemed credible. In many cases, this determination has a significant impact upon the outcome of a claimant's application, because the ALJ need only account for those symptoms - and the resulting limitations - that are credibly established when formulating his or her RFC assessment. Rutherford, 399 F.3d at 554. To facilitate this difficult analysis, the Commissioner has devised a two-step process that must be undertaken by the ALJ to evaluate a claimant's statements about his or her symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b); SSR 16-3p, 2016 WL 1119029.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions can reasonably be accepted as consistent with objective medical evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4). However, an ALJ will not reject statements about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3). Instead, the ALJ will evaluate the extent to which any unsubstantiated symptoms can be credited based on the following factors: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
An ALJ's findings based on the credibility of a claimant are to be accorded great weight and deference, since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford, 399 F.3d at 554.
In his decision, the ALJ provided the following summary of Plaintiff's testimony:
The claimant testified she lives with her fiancé and her fourteen-year-old daughter. The claimant testified to an extremely limited amount of daily activity. She indicated that she wakes her daughter for school in the morning, has breakfast, and then goes back to bed. The claimant testified she then gets up to spend approximately an hour with her daughter around dinnertime. The claimant testified she does not do anything in the home and her fiancé does all the household chores. The claimant testified she stopped doing all hobbies and does not read, use a computer or watch television, but television is occasionally on in the background when her fiancé is watching it. However, this extreme level of limitation is not consistent with the clinical evidence of record, as discussed above. Further, the claimant testified she goes grocery shopping with her fiancé and has some problems in the store in that she gets lost and overwhelmed. The claimant testified she was able to go to her daughter's spring chorus concert, even thought [sic] it was hard to get herself together, and she was debating going to a barbeque for memorial weekend. The claimant testified she does not go public places by herself, but she was not sure if she could go to the grocery store by herself. However, the claimant's fiancé reported she shops for small orders of TV dinners and milk alone (Exhibit B5E). Overall, the claimant testified there is some help from medication with her bad dreams and to stabilize mood. The claimant testified she has disrupted sleep despite medication. However, the treatment records often report her sleeping well.(Admin. Tr. 25).
In his decision, the ALJ found that Plaintiff's testimony was “partially accepted.” Id. He noted that the testimony “was candid and supported some limitations it is not entirely consistent with the level of limitation alleged by the claimant or with the objective medical evidence.” Id.
Plaintiff argues:
The Administrative Law Judge did not appropriately assess the Plaintiff's limitations according to SSR 16-3p where he must consider whether the Plaintiff's statements about the intensity, persistence and limiting effects of [her] symptoms are consistent with the medical signs and objective findings of record.
Plaintiff testified at the hearing on May 22, 2019 that her panic attacks have worsened to the extent that she wakes up in the morning feeling detached from herself at least three times per week, (CT, pp. 124-125, 129). She stays in bend most of the time and is not able to do anything around the house because it makes her feel bad to do so, (CT, p. 126, 131). She goes no where alone, (CT, p. 128). At the time of the hearing, Plaintiff was prescribed Abilify, Hydroxyzine, Mirapex, Minipress, Xanax and Lexapro for her illnesses, (CT, p. 128). She experiences auditory hallucinations, (CT, pp. 130-131). She cries and finds no enjoyment in hobbies, television or computer, (CT, pp. 133-134). She has difficulty being around other people and suffers panic attacks, (CT, p. 137).
Dr. Singh in his testimony stated that he has been treating the Plaintiff since December 16, 2014, seeing her at least once a month and diagnosing her with Bipolar I disorder, most recent episode depressed with psychotic features which Dr. Singh stated was the propensity towards psychotic symptoms such as delusions and hallucinations, (CT, p. 106). Dr. Singh explained that Plaintiff's diagnosis has evolved over time from generalized anxiety disorder, social anxiety disorder, panic disorder and mood disorder into bipolar disorder after the years of psychotic symptoms, suicidal behaviors and psychiatric hospitalizations, (CT, p. 107). Dr. Singh opined that because of Plaintiff's mental illness, she would not be capable of having a gainful sustained employment, (CT, p. 112). Dr. Singh's treatment notes outline his continued treatment of Plaintiff from December 16, 2014 through present, (CT, pp. 340-392, 427-449, 521-596).
Furthermore, counseling notes from Synergy Counseling Services ranging from November 19, 2014 through March 31, 2017 diagnose Plaintiff's panic disorder with agoraphobia, dysthymic disorder, intense anxiety, persistent depressive disorder and visual hallucinations, (CT, pp. 450-520). And, Plaintiff's primary care physician, Sudhir K. Khanna, M.D., who has treated her since February 2018, has also diagnosed Plaintiff with Major Depressive Bipolar disorder with significant disability and significant psychotic features in a letter written by the doctor in support of Plaintiff's claim for benefits, (CT, p. 870-872). Dr. Khanna's treatment notes were submitted in Plaintiff's case regarding her physical health as well as documented mental health issues, (CT, pp. 325-339, 411-426, 600-630).
And, the consultative examiner who preformed a mental status evaluation of the Plaintiff, solicited by the Social Security Administration, opined a diagnosis of Major Depressive disorder, recurrent, severe, Panic disorder, Agoraphobia, Generalized anxiety disorder, noting Three (3) “marked” limitations of the Plaintiff in the following areas: (1) In her ability to carry out complex instructions; (2) In her ability to interact appropriately with the public; (3) and, in her ability to respond appropriately to usual work situations and changes in a routine work setting, (CT, pp. 393-403).(Doc. 13, pp. 3-5) (internal footnotes omitted).
In response, the Commissioner argues:
Subjectively alleged symptoms cannot establish disability; rather, [a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). So long as substantial evidence supports his conclusion, the court should afford “great deference” to the ALJ's evaluation of Plaintiff's subjective allegations. Horodenski v. Comm'r of Soc. Sec., 215 Fed.Appx. 183, 189 (3d Cir. 2007). In fact, the ALJ's evaluation in this regard has been described as “virtually unreviewable on appeal” Hoyman v. Colvin, 606 Fed.Appx. 678, 681 (3d Cir. 2015).
In this case, “after careful consideration of the evidence, ” the ALJ found that “claimant's medically determinable impairments could reasonably be expected to cause the allege symptoms; however, the claimant's statements concerning the intensity, persistence, and limiting effects of th[ose] symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record” (Tr. 21).
The ALJ explained that Plaintiff's extreme allegations as to functioning was undermined by the objective evidence, Plaintiff's daily activities, and the opinion [of] Dr. Gavazzi (Tr. 20-26). See 20 C.F.R. § 404.1529(c)(3)(i) (explaining that in evaluating subjective complaints an ALJ may consider [] daily activities, course of treatment, and other factors). The facts supporting the ALJ's determination (which overlap with the facts supporting the ALJ's treatment of the opinion evidence) are discussed in the previous section of this brief on pages 17-19 above.
In sum, substantial evidence supports the ALJ's finding. It should be affirmed. Biestek, 139 S.Ct. at 1157 (noting substantial evidence is only more than a mere scintilla and a reviewing court should “defer[] to the presiding ALJ, who has seen the hearing up close”).(Doc. 15, pp. 20-21).
In her brief, Plaintiff appears to argue that the ALJ's evaluation of Plaintiff's statements about the intensity, persistence, and limiting effects of her mental impairments is not supported by substantial evidence because it is overwhelmed by other evidence, including: Plaintiff's medication regimen; Dr. Singh's opinion; the diagnoses recorded in treatment records from Synergy Counseling Services; Dr. Khanna's February 2018 letter; Dr. Khanna's treatment records; and Dr. Contri's medical source statement. See e.g., Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (explaining that evidence is not substantial “if it is overwhelmed by other evidence.”). I am not persuaded by Plaintiff's position that the ALJ's analysis is overwhelmed by the evidence cited.
With respect to the evidence of diagnoses in counseling or treatment records, a diagnosis alone neither supports nor contradicts statements about symptom severity. Although Plaintiff also cites to treatment records by Dr. Khanna, she does not identify what particular aspects of these records support her position. These records include some statements by Plaintiff about her mental health symptoms, but they do not contain any detailed objective record of the intensity or severity of Plaintiff's symptoms. (Admin. Tr. 326, 602) (noting “no emotional concerns” under the ROS section on February 2, 2018); (Admin. Tr. 328, 604) (noting that Plaintiff reported anxiety symptoms but documenting “no emotional concerns” under ROS section on March 2, 2018); (Admin. Tr. 331, 607) (noting “no emotional concerns” under ROS section on May 3, 2018); (Admin. Tr. 334, 411, 610) (noting “no emotional concerns” under ROS section on July 9, 2018); (Admin. Tr. 417, 613) (noting Plaintiff complained of frequent anxiety attacks after trazodone was stopped, but documenting “no emotional concerns” under ROS section on October 11, 2018); (Admin. Tr. 423, 616) (noting Plaintiff complained of having a lot of psychological stress, but documenting “no emotional concerns” under ROS section on December 3, 2018).
Plaintiff also cites to three statements by physicians. The first statement, an opinion by Dr. Singh, was found “not persuasive” by the ALJ. Although Plaintiff challenged this determination in her brief, I was not persuaded by Plaintiff's argument that the ALJ was required to apply the treating source rule. The second statement, and opinion by Dr. Contri, was found partially persuasive. (Admin. Tr. 23-24). The “marked” limitations assessed by Dr. Contri, and relied on by Plaintiff in support of this argument, were discounted by the ALJ, and Plaintiff has not challenged that finding. Thus, I am not persuaded that this discounted evidence overwhelms the evidence cited by the ALJ in support of his decision to discount some of Plaintiff's testimony about the extent and limiting effects of her symptoms. I am similarly not persuaded that the statements in Dr. Khanna's 2018 letter is overwhelming evidence that contradicts the ALJ's assessment. Although the letter identifies Plaintiff's diagnosis and expresses Dr. Khanna's belief that Plaintiff cannot work, it does not discuss Plaintiff's functional limitations in any detail. (Admin. Tr. 870).
I find that the ALJ has cited evidence in support of his decision to discount Plaintiff's testimony about the intensity of her symptoms (Admin. Tr. 21-23, 25), and this evidence is substantial. Accordingly, I am not persuaded that remand is required for further consideration of Plaintiff's testimony about the intensity of her symptoms.
C. Whether the ALJ Failed to Follow The Treating Source Rule
The Commissioner's regulations define a medical opinion as “a statement from a medical source about what [a claimant] can still do despite [his or her] impairment(s) and whether [he or she has] one or more impairment-related limitations or restrictions in the following abilities:”
(i) [The] ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) [The] ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) [The] ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 404.1513(a)(2). A “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State of Federal Law, or an individual who is certified by a State as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law. 20 C.F.R. § 404.1502(d). If one medical source submits multiple medical opinions, and ALJ will articulate how he or she considered the medical opinions from that medical source in a single analysis. 20 C.F.R. § 404.1520c(b)(1).
An ALJ's consideration of competing medical opinions is guided by the following factors: the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability); the extent to which the medical source's opinion is consistent with the record as a whole (consistency); length of the treatment relationship between the claimant and the medical source; the frequency of examination; the purpose of the treatment relationship; the extent of the treatment relationship; the examining relationship; the specialization of the medical source and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c).
The most important of these factors are the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2). The ALJ will explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. The ALJ may, but is not required to, explain his or her consideration of the other factors unless there are two equally persuasive medical opinions about the same issue that are not exactly the same. 20 C.F.R. § 404.1520c(b)(3). Unlike prior regulations, under the current regulatory scheme, when considering medical opinions, 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 your medical sources.” 20 C.F.R. § 404.1520c(a).
The ALJ summarized Dr. Singh's opinions as follows:
[T]he record contains written opinions and testimony from Dr. Singh (Exhibit B31F). Dr. Singh testified he has treated the claimant since December 16, 2014. Dr. Singh testified the claimant's bipolar disorder means that she could have a propensity for delusions, hallucinations and disorganizations. However, Dr. Singh testified the claimant has no visual or auditory hallucinations, and that her psychotic symptoms are mainly paranoia in social settings and thinking people are talking about her. Dr. Singh testified the claimant has anxiety, depression, panic attacks and feelings of worthlessness. Dr. Singh testified the claimant also has problems with her level of maturity for her age. Dr. Singh testified the claimant's symptoms have improved but her level of functioning has not. Dr. Singh testified that he still felt the claimant had a marked level of limitations in the areas he identified on hi written opinion of March 25, 2019, which indicated marked limitations in the ability to make judgments on simple work-related decisions, complex instructions and work-related decisions, interacting appropriately with supervisors and coworkers and responding appropriately to usual work situations and to changes in a routine work setting (Exhibit B11F). Dr. Singh testified the claimant would not be able to work, which he indicated in a written letter dated November 13, 2018 (Exhibits B5F and B6F). However, Dr. Singh testified the claimant has responded somewhat to her medications in that her acute mood changes, such as sadness, crying and feeling confused, have been better and the majority of her major symptoms are in better controlled [sic]. In addition, the treatment records primarily show the [sic] Dr. Singh indicating the claimant was stable on her medications. Lastly, Dr. Singh testified the claimant had hyperlipidemia, hyperthyroidism, hypertension, obesity and reflux,
but then indicated these conditions did not have a bearing on the claimant's psychiatric well-being.(Admin. Tr. 24-25). The ALJ concluded that Dr. Singh's opinions were “not persuasive.” In doing so the ALJ explained:
As such, the undersigned did not find the opinions of Dr. Singh persuasive because they were not well-supported by his treatment records and the clinical findings identified therein are not consistent with a marked level of limitation. Dr. Singh's records often indicate the claimant was eating and sleeping well, not tired or fatigued, maintaining interest and socializing with others. The clinical findings also indicate the claimant was pleasant, friendly and cooperative with a stable affect (Exhibits B3F and B10F). The marked level of impairments is also inconsistent with the claimant's level of treatment, as she was no longer going to therapy and as discussed above, Dr. Singh thought the frequency of her treatment with him could be reduced. However, the record still shows that these impairments certainly are severe in nature and result in an array of limitations, but the clinical findings, noted stability and overall conservative level of treatment are not consistent with a marked level of limitation. Further, while Dr. Singh has treated the claimant for a long period, this is not enough to overcome the objective evidence in his own treatment records, which are somewhat inconsistent with the level of limitation opined by Dr. Singh.(Admin. Tr. 25).
Plaintiff argues:
Absent “good cause” to the contrary, the ALJ must give substantial weight to the opinion, diagnosis, and medical evidence of a treating physician. Crawford v. Commissioner of Social Security, 363 F.3d 1155 (C.A. 11 Fla. 2004). Good cause exists under the following circumstances: (1) the treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) the treating physician's opinion was conclusory or inconsistent with the doctor's own medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
The ALJ clearly must articulate reasons for giving less weight to the treating physician's opinion. Id. at 1241.
A treating physician is the medical professional “most able to provide a detailed, longitudinal picture” of the claimant's medical impairments and “may bring a unique perspective to the medical evidence that cannot be obtained form the objective medical findings alone or from reports of individual examinations.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
Plaintiff has been in treatment with her psychiatrist, Gurdial N. Singh, M.D. since December 16, 2014, pursuant to the doctor's testimony, (CT, p. 106). Dr. Singh's Resume containing his professional qualifications was submitted into the record, (CT, pp. 1284-1286). In addition to Dr. Singh testifying at Plaintiff's hearing on her behalf, Dr. Singh provided his treatment notes, (CT, pp. 340-392, 427-449, 521-596); drafted a letter dated November 13, 2018 outlining his treatment of Plaintiff, diagnosis and prognosis (CT, pp. 404-410); and, completed a Medical Source Statement of Ability to do Work-Related Activities (Mental) assessing Plaintiff's impairments as related to her mental health, (CT, pp. 597-599). Notably in the Medical Source Statement of Ability to do Work-Related Activities (Mental) completed by Dr. Sigh, he opined that the Plaintiff has Seven (7) “marked” impairments of functioning in the following areas: (1) In her ability to make judgments on simple work-related decisions; (2) In her ability to understand and remember complex instructions; (3) In her ability to carry out complex instructions; (4) In her ability to make judgments on complex work-related decisions; (5) In her ability to interact appropriately with supervisors; (6) In her ability to interact appropriately with co-workers; (7) and, in her ability to respond appropriately to usual work situations and to changes in a routine work setting, (CT, pp. 597-599). In the Medical Source Statement of Ability to do Work-Related Activities (Mental) form completed by Dr. Singh, “marked” is defined as follows: “Functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” (CT, p. 597). Dr. Singh also gave testimony at the hearing regarding his opinions contained in the Medical Source Statement of Ability to do Work-Related Activities (Mental) explaining how he arrived at his opinion. Particularly, he stated that
he opined that the Plaintiff has a marked impairment in her ability to make judgments on simple work-related decisions because of her level of maturity, underdevelopment of intellectual function and uncontrolled emotions, (CT, p. 109). Additionally, Dr. Singh believed that Plaintiffs other marked limitations were always present, (CT, p. 110). He confirmed Plaintiffs feelings of worthlessness, as well as manifestations of depression, anxiety and panic attacks, (CT, p. 111).
Dr. Singh testified that he strongly believes that the Plaintiff is mentally ill and not capable of having gainful sustained employment, (CT, pp. 112-113). In response to questions presented by the Administrative Law Judge, Dr. Singh indicated that although some symptoms of the Plaintiff have improved due to medication, her functioning has not improved; further opining that entering the workforce would make Plaintiff sicker, (CT, p. 114).(Doc. 13, pp. 5-7) (internal footnotes omitted).
In response, the Commissioner argues:
Plaintiff further contends that the ALJ erred when he found that Dr. Singh's opinions-that Plaintiff had many marked limitations in mental functioning-were not persuasive. But, the ALJ properly followed the new regulatory scheme when reaching this determination. Thus, his determination should not be disturbed.
Addressing supportability, the ALJ indicated that Dr. Singh's opinion that Plaintiff had marked limitations (dating at least back to 2017) were not well supported by Dr. Singh's treatment records and the clinical findings identified therein (Tr. 25). Indeed:
. Between July and November 2017, Plaintiff went to Dr. Singh monthly stating she felt well and denying any complaints (Tr. 362-79). Her mood was controlled, she maintained her interest and pleasure, and socialized with others (Tr. 362-79). On examination, Plaintiff was in no acute distress; well dressed; neat and clean; pleasant, friendly, and cooperative; eating and sleeping well and had good energy (not fatigued) (Tr. 22, 25, 362, 366, 373, 376, 379).
. In December 2017, Plaintiff told Dr. Singh, “I am okay” and he wrote that Plaintiff was very nicely dressed, cooperative, talkative (Tr. 359), and had “no thought disorder no perceptual difficulties no looseness of Association no tearfulness or significant anxiety” (Tr. 361).
. In February 2018, Dr. Singh wrote that Plaintiff was in no acute distress, well dressed, cooperative and pleasant, and only minimally anxious with improved affect (Tr. 352); in May 2018, Dr. Singh wrote that Plaintiff was well dressed; neat and clean; pleasant, friendly, and cooperative and more relaxed (Tr. 347); and in August 2018, Dr. Singh found Plaintiff very well dressed, in no acute distress, pleasant, and cooperative (Tr. 440).c.f., Jones v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004) (an ALJ's decision requires no particular format and should be “read as a whole.”).
In terms of the consistency factor, the ALJ found Dr. Singh's opinions inconsistent with Plaintiffs overall conservative level of treatment during the relevant period (Tr. 25). Indeed, Plaintiffs mental health treatment was limited to medication management. The ALJ also explained that (contrary to Dr. Singh's opinion), Plaintiff engaged in activities that contradict a more limited RFC (Tr. 25). For example, the ALJ noted earlier in his decision, that during the relevant period, Plaintiff indicated she could engage in personal care when she needed to go somewhere; go to medical appointments; shop for personal items and groceries; drive a car; work on puzzles; follow lists; and get along with authority figures (Tr. 251-57). In addition, she went on a family vacation, appears to have attended a wedding, and attended her daughter's choral concert (Tr. 19-20, 22, 127, 256, 349, 772).(Doc. 15, pp. 17-18) (internal footnote omitted).
In her argument, Plaintiff cites to three cases: Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (CA. 11 Fla. 2004); Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004); and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). These three cases each address the application of a concept referred to as the “treating source rule.” This “rule, ” as it was codified by the Social Security Administration provides that:
Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.20 C.F.R. § 404.1527(c)(2). The treating physician rule, however, was eliminated by the Social Security Administration effective March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 5852 (Jan. 18, 2017). As this Court has noted:
“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, 2021 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.Carter v. Comm'r of Soc. Sec., No. 3:20-CV-1365, 2022 WL 141536 at *3 (M.D. Pa. Jan. 14, 2022).
The treating source rule remains in effect, but only for applications filed before March 27, 2017. 20 C.F.R. § 404.1527. A new framework applies to applications filed on or after March 27, 2017. 20 C.F.R. § 404.1520c. Plaintiff's application in this case was filed on April 19, 2018. Accordingly, I am not persuaded that remand is required because the ALJ failed to apply the treating source rule. This rule does not apply to Plaintiff's application.
D. Whether the ALJ's Hypothetical Question Included All of Plaintiff's Credibly Established Limitations
It is well-established in the Third Circuit that, where a VE's testimony forms the basis of an ALJ's substantial evidence determination, the hypothetical question which elicited the VE's response must accurately reflect all of a claimant's credibly established limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (quoting Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)).
Rutherford also clarifies, however, that an ALJ is not required to submit every impairment alleged by a claimant before relying on VE testimony. Rutherford, 399 F.3d at 554. This distinction is a subtle but important one, as the ALJ is only required to accurately convey only those limitations that are credibly established in the record to a VE for the VE's response to form the basis of a substantial evidence determination. Id. Credibly established limitations are:
Limitations that are medically supported and otherwise uncontroverted in the record, but that are not included in the hypothetical question posed to the expert, preclude reliance on the expert's response (Burns, 312 F.3d at 123). Relatedly, the ALJ may not substitute his or her own expertise to refute such record evidence (Plummer, 186 F.3d at 429). Limitations that are medically supported but are also contradicted by other evidence in the record may or may not be found credible-the ALJ can choose to credit portions of the existing evidence but “cannot reject evidence for no reason or for the wrong reason” (a principle repeated in Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993); Reg. § 929(c)(4)). Finally, limitations that are asserted by the claimant but that lack objective medical support may possibly be considered nonetheless credible. In that respect the ALJ can reject such a limitation if there is conflicting evidence in the
record, but should not reject a claimed symptom that is related to an impairment and is consistent with the medical record simply because there is no objective medical evidence to support it (Reg. § 929(c)(3)). Id.
Plaintiff argues:
Despite treatment records submitted in Plaintiff's case as well as the testimony of the treating psychiatrist of the Plaintiff, the Administrative Law Judge (ALJ) not only rejected the opinion of Dr. Singh and Plaintiff's other medical treating sources, but in doing so, improperly assessed the vocational abilities of the Plaintiff in response to the testimony of the Vocational Expert who testified at the hearing. That is, the ALJ at the hearing on May 22, 2019, asked the vocational expert, Joseph Goodman, hypothetical questions after Mr. Goodman first defined Plaintiff's past relevant work as an order processor or order clerk considered sedentary and semi-skilled work.
The first hypothetical question contained the following: no exertional limitations and only difficulty sustaining a highly detailed or a highly complex occupation with ability to understand, remember and carry out simply [sic] instructions and make simple work-related decisions but difficulty having direct contact with the public on a continuous or frequent basis. Furthermore, the Plaintiff could have occasional contact with coworkers, supervisors and the public and respond appropriately. And, the Plaintiff would be able to respond appropriately to any changes that take place in a simple, routine, repetitive type job to which the Vocational Expert answered that the Plaintiff could not perform her past work, (CT, pp. 140-141). The Vocational Expert offered examples of other jobs available for Plaintiff according to the ALJ's hypothetical question, (CT, p. 141-142).
The ALJ's second hypothetical question added the restrictions of incidental work with the public rather than occasional to which the Vocational Expert relied that there would be no effect on the jobs he offered, (CT, p. 142). And, the ALJ's third hypothetical consisted of limitations regarding the Plaintiff being off task due to her mental
health issues to which the Vocational Expert testified that all work would be precluded, (CT, p. 142).
However, the ALJ did not consider Dr. Singh's medical opinion when asking hypothetical questions of the Vocational Expert. Therefore, when I asked the Vocational Expert if the jobs he offered in the ALJ's first hypothetical questions would stand if the Plaintiff were unable to make simple work-related decisions, as Dr. Singh opined in his testimony and in his Medical Source Statement as indicated above, the Vocational Expert precluded all work, (CT, p. 143). Therefore, if the ALJ had considered the opinion of Dr. Singh in the Medical Source Statement of Ability to do Work-Related Activities (Mental) which noted a “marked” impairment in Plaintiff's ability to make simple work-related decisions, he could have come to no other conclusion than no work being available for Plaintiff with her level of mental health impairments.(Doc. 13, pp. 8-9).
In response, the Commissioner argues:
Plaintiff's next argument is that the ALJ did not consider the VE's testimony about those limitations that the ALJ ultimately determined were not credible and did not incorporate into the RFC (Pl.'s Br. at 28). But, “ALJ's routinely pose hypothetical questions to vocational experts in order to determine a claimant's ability to perform alternative employment.” Seney v. Comm'r Soc. Sec., 585 Fed.Appx. 805, 809 (3d Cir. 2014). “While the ALJ may proffer a variety of assumptions to the expert, the vocational expert's testimony concerning a claimant's ability to perform alternative employment may only be considered for purposes of determining disability if the question accurately portrays the claimant's individual physical and mental impairments.” Id. (quoting Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)).
For the reasons set forth above the ALJ did not find Plaintiff's allegations or Dr. Singh's opinion of disabling symptoms credibly established. Thus, the ALJ was permitted to disregard the VE's testimony about such alleged limitations in his decision. See Seney,
585 Fed.Appx. at 809 (“While Seney contends that the ALJ should credit the vocational expert's response to the second hypothetical, the ALJ properly did not rely on that response because it included allegations of disabling symptoms that, for the reasons discussed above, were not credibly established.”). In short, this argument too fails.(Doc. 15, pp, 21-22).
Plaintiff argues that the ALJ improperly excluded a limitation that Plaintiff would be unable to make simple work-related decisions. For support that this limitation is credibly established, Plaintiff cited to the medical opinion of Dr. Singh. (Admin. Tr. 587) (assessing that Plaintiff would have “marked” difficulty making judgments on simple work-related decisions). However, as discussed above, Dr. Singh's opinion and the limitation at issue were discounted by the ALJ. I find no basis to disturb the ALJ's conclusion that an inability to make judgments on simple work-related decisions was not a “credibly established limitation” in this evidentiary record. [The next page contains the Recommendation]
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for relief be DENIED as follows:
(1) The final decision of the Commissioner should be AFFIRMED.
(2) Final judgment should be issued in favor of the Commissioner.
(3) The clerk of court should close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.