Mowery v. Berryhill

Full title: SUSAN MOWERY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of…

Court: UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date published: Dec 3, 2018

Civil No. 4:17-CV-02149 (M.D. Pa. Dec. 3, 2018)

Opinion

Civil No. 4:17-CV-02149

12-03-2018

SUSAN MOWERY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

Magistrate Judge Carlson

(Judge Brann)

( ) REPORT AND RECOMMENDATION

I. Introduction

In this case we are called upon to determine whether substantial evidence supported the findings of an Administrative Law Judge, (ALJ) that the plaintiff, Susan Mowery, who was employed part-time during the period of her claimed disability, could work full-time at the type of work she was performing on a part-time basis.

For Administrative Law Judges (ALJs), evaluating cases like Mowery's, Social Security disability determinations frequently entail an informed assessment of competing medical opinions coupled with an evaluation of a claimant's subjective complaints. Once the ALJ completes this task, on appeal it is the duty and responsibility of the district court to review these ALJ findings, judging the findings against a deferential standard of review which simply asks whether the ALJ's decision is 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), a quantum of proof which "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).

In the instant case, an ALJ denied Susan Mowery's application for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits, based on her determination that Mowery was not disabled and could perform light work, including her past work. Mindful of the fact that 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), we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we will recommend that this court affirm the decision of the Commissioner denying this claim.

II. Statement of Facts and of the Case

A. The Plaintiff's Medical History , Employment and Impairments

Susan Mowery was 59 years old at the time of her alleged amended onset date of October 16, 2014. (Doc. 11, at 2). She has a high school education and has worked as a manager at a fast food restaurant, a sales clerk, a laborer and a cashier. (Id.) In fact, through the date of the administrative hearing, Mowery was actually working 20 hours per week at Burger King as a shift supervisor. (Tr. 46, 52). Mowery applied for disability benefits on September 2, 2014, alleging that she was disabled due to her shoulder pain, high blood pressure, and depression. (Tr. 96).

In September 2014, Mowery was seen for an orthopedic evaluation by Dr. Baublitz, D.O., which revealed that she had a retracted rotator cuff tear with early rotator cuff arthropathy. (Tr. 427). Subsequently, in October, she underwent surgery to repair her right shoulder, and started physical therapy thereafter. (Tr. 432,482). Mowery's shoulder pain continued, however, as she complained of shoulder pain when she was seen for a consultative examination by Dr. Yang, M.D., in January 2015. (Tr. 447). Dr. Yang found mildly decreased range of motion in the right shoulder and surmised that Mowery could lift and carry 10 pounds frequently, and up to 20 pounds occasionally. (Tr. 449, 451). In April 2016, Mowery went to Ephrata Community Hospital for clavicle and shoulder pain, as well as fatigue. (Tr. 682).

Mowery also complained of knee pain when she saw Dr. Folk, D.O., in October 2014. (Tr. 429). Dr. Folk observed that Mowery spent all day on her feet as a cook at Burger King, and that she was walking with crutches. (Id.) He noted a large round mass on her knee, and that she could not put full weight on it. (Id.) Dr. Folk set up an appointment for Mowery with an orthopedist. (Id.) An MRI in December showed extensive osteoarthritic changes of the patellofemoral articulation, medial compartment osteoarthritic changes, a tear involving the posterior meniscus, and a medial popliteal fossa cyst. (Tr. 490).

Mowery also complained of knee pain to Dr. Yang in his internal medicine evaluation on January 7, 2016. (Tr. 447). Dr. Yang opined that Mowery could sit, stand and walk each for 8 hours total in an 8-hour workday, that she could frequently climb stairs and ramps, balance, stoop, kneel, crouch and crawl, and that she could perform activities such as shopping, travelling, walking a block, and walking up steps. (Tr. 452-56). Mowery had surgery to repair her knee on January 8. (Tr. 509-10). In February, Mowery saw Dr. Baublitz, who noted that she had anterior knee pain, and that they were going to continue and at-home exercise routine. (Tr. 547). He also noted that her shoulder continued to progress. (Id.)

In addition to her physical ailments, Mowery had a history of depression that was controlled with medication, and in April 2016, was diagnosed with moderate depression. (Tr. 549, 699).

B. The ALJ's Determination

It is against this factual backdrop that the ALJ conducted a hearing on November 15, 2016. (Tr. 28-92). Both the plaintiff and a vocational expert ("VE") testified. (Id.) In a decision dated March 6, 2017, the ALJ denied Mowery's claim for benefits. (Tr. 12). The ALJ first found that Mowery met the insured status requirements of the Social Security Act through December 31, 2020. (Tr. 17). The ALJ found that there was at least a one-year period in which Mowery did not engage in substantial gainful activity since the alleged amended onset date of October 16, 2014. (Id.) At Step 2 of the sequential analysis, the ALJ found that Mowery had the following severe impairments: osteoarthritis of the right shoulder status-post right rotator cuff repair, degenerative joint disease of the right knee status-post excision of Baker's cyst, degenerative joint disease of the left knee, and obesity. (Tr. 18).

The ALJ also determined that the plaintiff's depression was a nonsevere impairment. (Id.) The ALJ found that the plaintiff had no more than a mild limitation in the following areas: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (Id.) Further, the ALJ noted that Mowery's primary care treatment records consistently showed that her depression was controlled with medication. (Id.) At Step 3, the ALJ found that none of the plaintiff's impairments met or medically equaled the severity of the listed impairments. (Id.)

Before proceeding to Step 4, the ALJ fashioned a residual functioning capacity ("RFC"). The ALJ determined that Mowery could perform light work as follows:

[T]he claimant can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; can sit, stand, or walk for a total of eight hours each in an eight-hour workday; is limited to frequent reaching in all directions with the right (dominant) upper extremity; can frequently crouch, kneel, stoop, climb ramps/stairs, or crawl; and can tolerate frequent exposure to moving mechanical parts or unprotected heights.

(Tr. 19).

In making this determination, the ALJ relied on the claimant's reported symptoms to the extent they were consistent with the objective medical evidence of record. (Id.) The ALJ considered the claimant's medical records as a whole and gave substantial weight to the opinion of Dr. Yang, an internal medicine specialist. (Tr. 20-21). The ALJ noted that Dr. Yang's opinion was generally consistent with the whole record and was based on his own documented objective clinical observations. (Tr. 21). Further, the ALJ concluded that Mowery's statements of her symptoms, concerning the intensity, persistence and limiting effects of those symptoms, were not entirely consistent with the objective medical evidence. (Tr. 19).

On this score, the ALJ concluded at Step 4 that Mowery was capable of performing her past work as a cashier, sales clerk, and fast food manager. (Tr. 21). The ALJ based this determination on the evidence of record, as well as the testimony of the VE and the plaintiff's work history report and earnings record. (Id.) It was determined that the plaintiff's past work as a fast food manager, sales clerk, and cashier required only a light exertional level, and that the plaintiff could perform the cashier job as generally performed in the national economy and as actually performed by the plaintiff, and the manager and sales clerk jobs as generally performed. (Tr. 22). Thus, the ALJ ultimately concluded that Mowery was not disabled and was not entitled to benefits. (Id.) This appeal followed. (Doc. 1).

On appeal, Mowery contends that the ALJ's determination that she could perform light work is not supported by substantial evidence. She argues that the ALJ did not properly consider the plaintiff's obesity and did not account for the plaintiff's depression. Moreover, she avers that the ALJ erred when she failed to ask the VE specific questions regarding the consistency of the expert's testimony with the Dictionary of Occupational Titles ("DOT"). Mowery also asserts that the ALJ erred in her RFC determination. Lastly, Mowery claims that the ALJ improperly evaluated her subjective complaints.

For the reasons set forth below, under the deferential standard which applies to review of ALJ disability determinations, we find that substantial evidence in the record supported each of the adverse rulings made by the ALJ which Mowery now challenges on appeal. We further find that the ALJ's decision sufficiently articulates the factual underpinnings of these determinations in a way which permits meaningful judicial review of this decision. Therefore, we will recommend that the court affirm the decision of the Commissioner.

III. Discussion

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 the claimant is disabled, but rather whether the Commissioner's finding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence") (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts"); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp.2d at 536 ("[T]he court has plenary review of all legal issues....").

Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review "we are mindful that we must not substitute our own judgment for that of the fact finder." Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, "this Court requires the ALJ to set forth the reasons for his decision." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements ... are insufficient. The ALJ must provide a "discussion of the evidence" and an "explanation of reasoning" for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular "magic" words: "Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.

B. Initial Burdens of Proof , Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(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).

In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (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), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).

There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that "[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant." Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: "There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).

These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where a well-supported medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living, to fashion an RFC courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §§ 404.1512, 416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §§ 404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.

The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order 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).

C. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms

The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:

[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir. 2009) ("In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses...."). However, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir. 1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006) (stating that an ALJ is required to provide "specific reasons for rejecting lay testimony"). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D. Pa. 2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).

Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).

Yet, it is also clear that:

Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling ("SSR") 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.

McKean v. Colvin, 150 F. Supp. 3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of pain under a standard of review which is deferential with respect to the ALJ's well-articulated findings but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.

In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the "statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011) (referencing 20 C.F.R. § 404.1529(a)) ("statements about your pain or other symptoms will not alone establish that you are disabled"). It is well-settled in the Third Circuit that "[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence." Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.

First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16-3p. This includes, but is not limited to: medical signs and laboratory findings, diagnosis and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.

Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24, 2014); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015).

D. Harmless Error Analysis —Social Security Appeals

Finally, any assessment of a Social Security appeal necessarily entails evaluating whether an alleged error resulted in any arguable prejudice. In Social Security appeals courts may also apply harmless error analysis when assessing the sufficiency of an ALJ's decision. Seaman v. Soc. Sec. Admin., 321 F. App'x 134, 135 (3d Cir. 2009). "Under the harmless error rule, an error warrants remand if it prejudices a party's 'substantial rights.' An error implicates substantial rights if it likely affects the outcome of the proceeding, or likely affects the 'perceived fairness, integrity, or public reputation of [the] proceedings.' " Hyer v. Colvin, 72 F. Supp. 3d 479, 494 (D. Del. 2014). Thus, "[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result," Moua v. Colvin, 541 Fed.Appx. 794, 798 (10th Cir. 2013) quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989), and it is well-settled that "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 1706, 173 L.Ed. 2d 532 (2009).

E. The ALJ's Determination is Supported by Substantial Evidence

As we have noted, the plaintiff challenges the ALJ's determination that Mowery is not disabled in several respects. First, Mowery contends that the ALJ's finding that she could perform her past work is not supported by substantial evidence. She argues that the ALJ did not elicit specific testimony from either the plaintiff or the VE regarding the physical and mental demands of her past work, and that the ALJ did not ask the VE about apparent conflicts between the VE's testimony and the DOT. The second challenge to the ALJ's decision is that the ALJ erred in her RFC determination. Mowery asserts that the ALJ failed to consider her obesity, did not individually specify her ability to sit, walk or stand, and did not account for her depression. Finally, the plaintiff claims that the ALJ erred in her symptom evaluation. She argues that the ALJ undermined the severity of her symptoms, failed to conduct a pain analysis, and failed to account for her treatment. We address each of the plaintiff's arguments in turn.

1. Substantial Evidence Supports the ALJ's Finding that Mowery Could Perform Her Past Work.

At Step 4 of the sequential analysis, the ALJ found that Mowery could perform her past work as a cashier, sales clerk, and fast food manager. (Tr. 21). The ALJ based this finding on a comparison of the plaintiff's RFC with the physical and mental demands of her past work. (Tr. 22); 20 C.F.R. § 404.1520(e)). The finding was also based on the testimony of the VE at the hearing, in which the VE opined that a person of the claimant's age, education, and work experience, with the RFC that the ALJ assigned the claimant, would be able to perform the cashier job as generally performed in the national economy and as the plaintiff actually performed it, and the fast food manager and sales clerk jobs as generally performed. (Tr. 22, 84-88).

In our view, there is substantial evidence in the record to support this finding. Contrary to the plaintiff's assertion that the ALJ did not inquire into the physical and mental demands of the plaintiff's past work, the ALJ stated that she review the plaintiff's work history report. (Tr. 21). A review of this report shows a description of each of the jobs the plaintiff held, including shift supervisor, warehouse worker and assistant manager. (Tr. 263). The descriptions included: relevant job duties; whether machines, technical knowledge, skills, or equipment was used; how many hours the plaintiff stood and sat down; how much weight was carried and lifted; and whether the position was a supervisory position. (Tr. 264-266). This information, coupled with the objective medical evidence and the plaintiff's own testimony regarding the demands of her past work, (Tr. 66-73), was sufficient evidence from which the ALJ could conclude that the plaintiff was able to perform her past work.

Furthermore, as the defendant notes, it is the claimant's burden to show that she is unable to perform her relevant past work. See Saez v. Colvin, 216 F.Supp.3d 497, 510 (M.D. Pa. 2016) ("The initial burden rests with the claimant to demonstrate that he or she is unable to engage in his or her past relevant work"). Here, Mowery has not offered any argument or evidence to show that she cannot perform her past work. To the contrary, through the date of the administrative hearing, Mowery was working 20 hours per week at Burger King as a shift supervisor. (Tr. 46, 52). Thus, this argument is unpersuasive.

Finally, Mowery contends that remand is appropriate because the ALJ failed to ask the VE about apparent conflicts between the VE's testimony and the DOT. Initially, we note that the plaintiff has not presented any evidence showing a conflict between the VE's testimony and the DOT with respect to the jobs the VE identified. Moreover, the record indicates that there was no conflict between the VE's testimony and the DOT. (Tr. 21-22, 84-88). The VE testified that Mowery could perform work as a fast food manager, sales clerk, and a cashier, all as generally performed in the national economy. (Tr. 84-88). These jobs, according to the DOT, are performed at a light exertional level, which the ALJ found the plaintiff could perform. (Tr. 22).

The United States Court of Appeals for the Third Circuit has held that, where there is a conflict between the VE's testimony and the DOT, an ALJ must inquire into the conflict and try to resolve it before relying on the VE's testimony. See Rutherford v. Barnhart, 399 F.3d 546, 556 (3d Cir. 2005) (quoting SSR 00-4P, 2000 WL 1898704 (Dec. 4)) ("When there is an apparent unresolved conflict between VE . . . evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict"). However, courts are not required to remand a case based solely on the failure of the ALJ to inquire into potential conflicts. See Jones v. Barnhart, 364 F.3d 501, 506 n.6 (3d Cir. 2004) ("[T]his Court has not adopted[ed] a general rule that an unexplained conflict between a VE's testimony and the DOT necessarily requires reversal") (internal quotations omitted); Tisoit v. Barnhart, 127 F. App'x 572, 575 n.1 (3d. Cir. 2005) (non-precedential) (stating that the "mere failure to inquire about the possibility of an inconsistency . . . [does not] mandate[] reversal"). Rather, a remand is required only when there is a potentially prejudicial, but unexplored, variance between the DOT and the VE's testimony.

Here, there were no apparent inconsistencies between the VE's testimony and the DOT pertaining to the jobs that were identified. The DOT listings with respect to the jobs the VE identified—cashier, fast food manager and sales clerk—provide that these jobs can be performed at a light exertional level. In fact, Mowery was actually performing this work on a part-time basis throughout her claimed period of disability. The ALJ then limited Mowery to the type of light work that she had performed part-time. Thus, the fact that the ALJ failed to inquire about potential inconsistencies between the VE's testimony and the DOT when Mowery had already demonstrated the ability to meet the exertional requirements of this work on a part-time basis is, if anything, harmless error. Accordingly, this court should decline to remand the plaintiff's case on this basis.

2. Substantial Evidence Supports the ALJ's RFC Determination.

Between steps 3 and 4 of the analysis, the ALJ fashioned an RFC, taking into account the plaintiff's limitations:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functioning capacity to perform a range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) as follows: the claimant can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; can sit, stand or walk for a total of eight hours each in an eight-hour workday; is limited to frequent reaching in all directions with the right (dominant) upper extremity; can frequently crouch, kneel, stoop, climb ramps/stairs, or crawl; and can tolerate frequent exposure to moving mechanical parts or unprotected heights.

(Tr. 19). The ALJ based her RFC determination on the objective medical evidence in the record, opinion evidence, and the claimant's testimony and symptoms. (Id.) The plaintiff challenges this determination on three grounds: (1) the ALJ did not individually specify the plaintiff's limitations for sitting, standing and walking; (2) the ALJ did not account for the impact that the plaintiff's obesity has on her other impairments; and (3) the ALJ did not account for the plaintiff's depression.

(1) The ALJ Individually Considered the Plaintiff's Limitations Regarding Sitting , Standing, and Walking.

At the outset, we note that the plaintiff's first contention—that the ALJ did not consider the plaintiff's ability to sit, stand, and walk individually—is without merit. The ALJ specifically found that Mowery could "sit, stand or walk for a total of eight hours each in an eight-hour workday." (Tr. 19) (emphasis added). Additionally, the ALJ gave substantial weight to Dr. Yang's opinion, in which Dr. Yang surmised that Mowery could sit, stand, and walk for a total of eight hours each in an eight-hour workday. (Tr. 452) (emphasis added). This is generally consistent with the medical evidence in the record, which shows that at a follow-up appointment after her knee surgery, Mowery was not given any activity restriction and was referred for physical therapy three times per week. (Tr. 463). Further, orthopedic records from April 2015 show that Mowery was able to bear normal weight on her knee and ambulate adequately. (Tr. 545). Thus, the assertion that the ALJ did not adequately consider Mowery's ability to sit, stand and walk is unpersuasive.

(2) The ALJ Considered the Plaintiff's Obesity in Making the RFC Determination.

The plaintiff also contends that the ALJ did not properly consider her obesity in fashioning the RFC, even though the ALJ found obesity to be a severe impairment. Mowery relies on the Third Circuit case of Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009), for her assertion that a failure to consider the effect of a claimant's obesity on her other impairments requires remand.

The claimant in Diaz was 4'11" tall and weighed 252 pounds, and was found to have diabetes, hypertensive cardiovascular disease, asthma, and other severe impairments. Diaz, 577 F.3d at 502. The ALJ acknowledged the claimant's obesity as a severe impairment at Step 2, but failed to consider its impact on her other impairments. Id. at 503. Ultimately, the ALJ determined that the claimant was not disabled, and denied her application for benefits. Id.

The Court of Appeals remanded the case to the ALJ, holding that when an ALJ finds obesity to be a severe impairment at Step 2 of the analysis, the ALJ "must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step." Id. at 504. The Court reasoned that Diaz had specifically asserted obesity as an impairment, and that her obesity, "as a matter of common sense," would seem to have exacerbated her joint dysfunction, among other impairments. Id. at 504. The Court found that it could not adequately review the ALJ's decision "absent analysis of the cumulative impact of Diaz's obesity." Id. The ALJ was instructed, on remand, to determine "whether, and to what extent, Diaz's obesity, in combination with her [other impairments], impacted her workplace performance." Id. at 505.

While the Court of Appeals imposed this requirement on ALJs to consider the effects of a claimant's obesity, it did not set forth a strict formula with which the ALJs were to comply. Quite the contrary, the Court made it clear that "[t]he ALJ, of course, need not employ particular 'magic' words: '[Case law] does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.' " Id. at 504 (citations omitted). Furthermore, the Court also made it abundantly clear that its decision related to the ALJ's duty to adequately articulate the rationale underlying any decision denying benefits and did not in any way alter the very deferential substantive standard of review in these cases. As the court noted, "[w]ere there any discussion of the combined effect of [obesity upon] Diaz's impairments, we might agree with the District Court [and affirm the ALJ decision]." Id. (emphasis in original). By noting that "any discussion of the combined effect of [obesity upon] Diaz's impairments" would have been sufficient, the appellate court underscored the continuing vitality of the deferential standard of review that applies in these cases.

Furthermore, the Court in Diaz specifically distinguished Diaz's situation from the claimant in Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005), a case in which the Court refused to remand to the Commissioner, finding that the consideration of the claimant's obesity would not have affected the outcome of the case. Rutherford, 399 F.3d at 552. In Rutherford, the claimant did not specifically mention or rely on obesity as a condition that affected her ability to work or indicate how a more comprehensive consideration of her obesity would affect the ALJ's analysis. Id. at 553. The Court noted that Rutherford's assertion that her obesity made it difficult for her to stand and walk was a "generalized response" that was "not enough to require a remand," especially considering the volume of other evidence that the ALJ relied on. Id.; see also McKean v. Colvin, 150 F.Supp.3d 406, 417 (M.D. Pa. 2015) ("The ALJ's failure to explicitly delineate where obesity may have caused or contributed to specific symptoms and functional limitations does not undermine the entire analysis, when ultimately the ALJ properly characterized the symptoms and functional limitations").

In this case, the ALJ found Mowery's obesity to be a severe impairment. (Tr. 18). After a review of all of the medical evidence, the ALJ identified the claimant's obesity, being that she was 5'4" tall and weighed 196 pounds, with a body mass index (BMI) of 33.4. (Tr. 21). The ALJ stated that she considered the claimant's weight, "including the impact on her ability to ambulate as well as her other body systems," in concluding that Mowery could perform light work. (Id.) While the ALJ's discussion of Mowery's obesity was brief, when viewed in light of the entire record of medical evidence considered by the ALJ, we find that the consideration of Mowery's obesity was sufficient. See Woodson v. Comm'r Soc. Sec., 661 F. App'x 762, 765 (3d Cir. 2016) (finding that an ALJ's duty is satisfied when he or she considers a claimant's obesity and evaluates it within the context of the overall record); Hoyman v. Colvin, 606 F. App'x 678, 680 (3d Cir. 2015) (finding that the ALJ's responsibility is met when he or she considers the claimant's obesity in assessing the claimant's RFC).

Mowery's circumstances most resemble the claimant in Rutherford. Mowery did not rely on her obesity as an impairment when she filed for benefits. Additionally, obesity was not mentioned at all in the plaintiff's testimony at the administrative hearing, (Tr. 41-77), even when the ALJ specifically asked the plaintiff if she had any other physical problems in addition to her shoulder and knee pain. (Tr. 64). Moreover, Mowery does not provide us with any evidence to indicate that a greater consideration by the ALJ would have changed the outcome of the decision. See Santini v. Comm'r of Soc. Sec., 413 F. App'x 517, 520 (3d Cir. 2011) (finding the ALJ's brief consideration of obesity sufficient where the claimant did not provide evidence "indicating that her obesity ha[d] a significant effect on her functional capacity"). Rather, as the ALJ noted, the medical evidence showed a normal gait, only mild decreased range of motion, normal weight bearing and adequate ambulation, and no significant physical abnormality or functional deficiency. The ALJ also considered the fact that the plaintiff was placed on almost no activity restrictions after her surgeries, and that she eventually returned to work without restrictions. Finally, Dr. Yang concluded that, based on an examination of the plaintiff, she could perform work at a light exertional level, subject only to limitations of reaching with her right arm.

Given the ALJ's consideration of the evidence as a whole, coupled with her consideration of the plaintiff's obesity, in our view the ALJ adequately considered Mowery's obesity in fashioning her RFC determination.

(3) The ALJ Considered the Plaintiff's Depression in Making the RFC Determination.

Mowery's argument that the ALJ failed to account for her depression in her RFC determination is likewise unavailing. The ALJ found that the plaintiff's mental impairment of depression was nonsevere. (Tr. 18). The ALJ considered the "paragraph B" criteria—the four areas of mental functioning listed in the regulations—and found that the plaintiff had no more than mild limitation in the following areas: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (Id.) The ALJ relied on Mowery's treatment records, which showed that her depression was controlled with medication, and that there were no observations of deficiency in her mental status. (Id.) These findings were supported by the opinion of Dr. George Ondis, Ph.D., the State agency psychologist. (Id.; Tr. 97, 104).

Dr. Ondis noted in his examination that Mowery was treated by her primary care physician for her depression, and she did not receive formal mental health treatment and was never psychiatrically hospitalized. (Tr. 97). The plaintiff reported that her mood was "ok overall," and that she did not have significant difficulty handling stress or change or getting along with others. (Id.) Dr. Ondis found that Mowery's statements were partially credible, and ultimately, that "[t]he available evidence does not establish that the claimant has significant limitations secondary to a mental impairment." (Id.)

After a review of the record, we find that the ALJ's consideration of the plaintiff's depression was sufficient. While Mowery's depression is noted in various medical records and examinations, there are no medical records from a specialist or any mental health facility showing that Mowery was seen specifically for her depression. Additionally, the medical records that do mention her depression note that it was controlled by medication, and that her psychiatric status was normal. (Tr. 549, 555, 686, 692); see Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 (3d Cir. 2007) ("evidence of [the claimant's] depression shows that it was not disabling because that impairment was controlled by medication"). Thus, there is substantial evidence in the record to support the ALJ's finding that Mowery's depression was nonsevere, and that it did not require the ALJ to include any additional limitations in the RFC determination. Accordingly, substantial evidence supports the ALJ's RFC determination, and the court should decline to remand the plaintiff's case on this basis.

3. The ALJ Did Not Err in the Evaluation of the Plaintiff's Symptoms.

The ALJ, after reviewing the evidence in the record, found that the plaintiff's allegations regarding the intensity, persistence and limiting effects of her disabling limitations were not entirely consistent with the medical evidence and other evidence. (Tr. 19-20). Mowery alleged disabling limitations due to her difficulties with maneuvering and exertion. (Tr. 19). She now contends that the ALJ improperly evaluated her subjective complaints in finding that she was able to perform light work.

As we have previously stated, it is well-settled in the Third Circuit that "[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence." Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). A reviewing court must give deference to the ALJ's determinations regarding credibility, and we are mindful of the fact that the ALJ is not required to credit the claimant's assertions. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011). Indeed, while an ALJ is required to consider a claimant's subjective complaints, these subjective complaints alone cannot establish that the claimant is disabled. Id. (referencing 20 C.F.R. § 404.1529(a)) ("statements about your pain or other symptoms will not alone establish that you are disabled").

Here, the ALJ recounted the plaintiff's medical history, including her rotator cuff and knee surgeries and her physical therapy. (Tr. 20). The ALJ noted that medical records showed Mowery's improved range of motion in her shoulder after starting physical therapy, and that she was not given any activity restrictions in the weeks following her knee surgery. (Id.) Additionally, orthopedic records from April 2015 showed that Mowery was able to ambulate adequately and reflected normal weight bearing. (Id.) Physical therapy notes from April 2015 show that Mowery had achieved all goals related to her shoulder pain. (Id.) Given this medical evidence, the ALJ found that Mowery's own complaints of her symptoms were not entirely consistent with the entire record:

In sum, the evidence shows that the claimant experienced a substantial degree of functional restriction between her shoulder surgery in October 2014 and her discharge from physical therapy services in April 2015. The evidence shows that the claimant's treating source released her to return to work at that time with a four week restriction to lifting no more than 15 pounds, and subsequent treatment notes do not reflect clinical observations or medical source opinions of any further level of limitation or functional deterioration. Records dating

from late 2015 through 2016 do not consistently document any reports of functional limitation aside from isolated incidents of knee swelling, with no accompanying findings of functional restrictions which would preclude the claimant from performing the range of work activity described in the above finding.

(Tr. 21).

Contrary to the plaintiff's assertion, the ALJ did in fact consider the factors set forth in SSR 16-3P, 2017 WL 5180304 (Oct. 25, 2017), including the claimant's daily activities, duration and frequency of pain, and treatment received to alleviate pain. The ALJ considered the fact that the plaintiff was working 20 hours per week at the time of the hearing, the frequency and duration of the plaintiff's shoulder and knee pain, and the fact that the plaintiff attended physical therapy. (Tr. 17, 20-21). The ALJ found that, although there were isolated incidents of pain, the medical records did not show consistent functional limitations in the relevant time period.

In sum, the ALJ's assessment of the evidence in this case complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant like Roberto can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence could have been further explained, or might have been viewed in a way which would have also supported a different finding, we are obliged to affirm this ruling once we find that it is "supported by substantial evidence, 'even [where] this court acting de novo might have reached a different conclusion.'" Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations we conclude that substantial evidence supported the ALJ's evaluation of this case. On this score, because our review of the ALJ's determination is deferential, we cannot agree with the plaintiff that the ALJ erred in her assessment of the plaintiff's subjective complaints. Thus, we recommend that the Commissioner's decision to deny benefits be affirmed.

IV. Recommendation

In summary, we find that the ALJ's decision represents the careful and methodical assessment of the factual, medical and opinion evidence that was presented. The decision was adequately explained and based upon substantial evidence that the ALJ evaluated in accordance with prevailing legal and regulatory guidelines and should therefore be affirmed and the plaintiff's appeal denied.

The parties are further placed on notice that pursuant to Local Rule 72.3:

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.

Submitted this 3d day of December, 2018.

/S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge