Opinion
1:19-cv-01826-JPW-GBC
03-12-2021
SARA REED, MAGISTRATE JUDGE COHN Plaintiff, v. ANDREW SAUL, DENY PLAINTIFF' S APPEAL Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Sara Reed (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Act, a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an Administrative Law Judge (“ALJ”) to decide whether an applicant (1) is engaged in “substantial gainful activity;” (2) suffers from a “severe medically determinable physical or mental impairment;” (3) suffers from “an impairment(s) that meets or equals one” listed in the regulation's appendix; (4) has a residual functional capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make an adjustment to other work.” Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) (“court shall review only the question of conformity with such regulations and the validity of such regulations”); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Biestek v. Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is “less than a preponderance” and “more than a mere scintilla.” Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
II. PROCEDURAL HISTORY
On January 13, 2017, Plaintiff filed an application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), with a last insured date (“DLI”) of December 31, 2020, and an alleged disability onset date of February 6, 2015. (Tr. 12, 74). Plaintiff alleged disability due to the following impairments: (1) lower lumbar disk degeneration; (2) lower lumbar fusion; (3) depression; (4) bipolar disorder; (5) ADHD, and; (6) anxiety. (Tr. 74-75). On November 11, 2018, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 9-25). Plaintiff sought review of the decision, which the Appeals Council denied on August 20, 2019, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-6).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
On October 21, 2019, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On December 10, 2019, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On March 3, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 12 (“Pl. Br.”)). On March 30, 2020, Defendant filed a brief in response. (Doc. 13 (“Def. Br.”)). On April 17, 2020, Plaintiff filed a reply brief. (Doc. 16 (“Reply Br.”)).
III. ISSUES
On appeal, Plaintiff argues the ALJ erred in: (1) failing to apply the treating physician rule to Dr. Allen Gillick's opinions; (2) the consistency analysis regarding Plaintiff's alleged severity of postural limitations, and; (3) failing to properly account for limitations in maintaining concentration, persistence, or pace, in the Vocational Expert's (“VE”) hypothetical. Pl. Br. at 813.
IV. BACKGROUND
Plaintiff is classified by the regulations as a younger individual through the date of the November 2018 ALJ decision. (Tr. 74); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed two years of college. (Tr. 156). Plaintiff's past relevant work included a job as a certified nursing assistant under Dictionary of Occupational Titles (“DOT”) number 355.674-014, described as customarily medium work and with an SVP level 4, which is semiskilled work, and a job as a food service supervisor under DOT number 319.137-010, described as light work with an SVP level 6, which is skilled work. (Tr. 19, 69).
The SVP levels are referenced in the regulations and are routinely accounted for during disability proceedings by determining whether the claimant can engage in skilled, semi-skilled, or unskilled work. 20 C.F.R. § 404.1568; see also SSR 00-4p, 2000 WL 1898704 at *3. SVP is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed to average performance in a specific job-worker situation. United States Department of Labor, DOT Vol. 2, 1009 (4th ed. Rev. 1991) available on Westlaw 1991 WL 688702. “Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704
“As the parties are familiar with the record, we raise here only those facts that are essential to our decision.”
A. Allocation of Weight of Medical Opinions
Plaintiff argues three statements in the record amount to medical opinions from treating physician Dr. Gillick, the ALJ ignored these opinions, and these opinions are entitled to controlling weight pursuant to 20 C.F.R. §§ 404.1527, 416.927. Pl. Br. at 8-10. Plaintiff cites the following as opinions entitled to controlling weight: (1) a record dated December 28, 2016, with the statement that Plaintiff is “off work per Dr. Gillick's recommendations” (Tr. 295); (2) a record dated May 10, 2017, wherein Dr. Gillick wrote that Plaintiff “will continue judicious use of medication, limited activity level” (Tr. 1147), and; (3) a record dated April 23, 2018, wherein Dr. Gillick wrote that Plaintiff should “continue with judicious use of medication, restricted activity” (Tr. 1149). Pl. Br. at 8. Plaintiff “asserts that a treating physician's well supported opinion cannot be rejected without citation to other medical evidence of record.” Pl. Br. at 9-10.
Without citing any law, Plaintiff argues that once a doctor instructs a patient to limit activity, the limitation is an opinion that exists in perpetuity until the doctor instructs to the contrary. Pl. br. at 8. The Court finds this argument meritless and fails for reasons explained below for finding the statements insufficient to warrant remand..
The regulations define medical opinions as “statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1); 20 C.F.R. § 416.927(a)(1). Opinions that a claimant is “disabled” or “unable to work” are defined as “opinions on issues reserved to the Commissioner, ” and are not considered “medical opinions” under the regulations. 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d). The December 2016 reference to Dr. Gillick's recommendation that Plaintiff should not work (Tr. 295) is not a medical opinion under the regulations. See 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d).
Regarding the May 2017 treatment record wherein Dr. Gillick wrote Plaintiff should continue “limited activity level” (Tr. 1147), and the April 2018 treatment record wherein Dr. Gillick wrote Plaintiff should continue with “restricted activity” (Tr. 1149), these notes “strain the regulatory definition of a ‘medical opinion.'” See Horr v. Berryhill, 743 Fed.Appx. 16, 20 (7th Cir. 2018) (declining to find physician's reports as medical opinions demanding ALJ discussion where the reports contained “symptoms and diagnoses, but not a prognosis, a discussion of what [the plaintiff] could do despite her impairments, or an assessment of her physical restrictions.”) (citing House v. Berryhill, No. 1:17-CV-2109-SEB-TAB, 2018 WL 1556173, at *6 (S.D. Ind. Mar. 30, 2018). Contrary to Plaintiff's assertion, the ALJ did address the May 2017 record (Tr. 1147) and April 2018 record (Tr. 1149). (Tr. 15, 18-19 (ALJ decision citing 1138-1149). The ALJ explained:
the record does not document neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test.(Tr. 15) (citing 1138-1149). The ALJ observed “[i]n spite of chronic pain, physical therapy improved the claimant's strength and flexibility, ” (Tr. 18 (citing Tr. 1144)), “[p]hysical examinations revealed normal motor function and sensation and intact reflexes” and “[s]traight leg raising was usually negative, or slightly positive on the right.” (Tr. 18 (citing Tr. 1140-49)). These treatment records indicating Plaintiff should maintain “limited activity level, ” and “restricted activity, ” are too vague to be probative on the matter of what Plaintiff can still do despite the impairments and the ALJ not allocating specific weight to these opinions does not amount to reversible error. See 20 C.F.R. § 404.1527(a)(1); 20 C.F.R. § 416.927(a)(1); Wrights v. Colvin, No. 3: 13-CV-02516-GBC, 2015 WL 2344948, at *10 (M.D. Pa. May 14, 2015). The ALJ's failure to specifically state what weight to give the opinions is harmless, given the ALJ obviously addressed the treatment records which contained these opinions, the opinions are not probative regarding the issue of what Plaintiff can or cannot do in a typical work setting, and the opinions are too vague to conflict with Plaintiff's residual functional capacity. See Wrights v. Colvin, No. 3: 13-CV-02516-GBC, 2015 WL 2344948, at *10 (M.D. Pa. May 14, 2015) (collecting cases); Smathers v. Saul, No. 3: 18-CV-01743-RDM-GBC, 2019 WL 5549340, at *3 (M.D. Pa. Sept. 30, 2019), report and recommendation adopted, No. 3:18-CV-1743, 2019 WL 5550017 (M.D. Pa. Oct. 25, 2019) (affirming where ALJ did not specifically allocate weight to an opinion in a treatment record that lacked the specificity to address limitations in a manner that would create a dispute with the opinion the ALJ relied upon for the disability determination).
If a non-examining opinion is, more consistent with evidence, or authored by a specialist, than it may be entitled to greater weight than examining or treating opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Johnson v. Barnhart, 89 Fed.Appx. 364, 368 (3d Cir. 2004). An ALJ may reject an examining physician's opinion in favor of a non-examining physician opinion based on contradictory evidence. See 20 C.F.R. 404.1527(c); Johnson v. Barnhart, 89 Fed.Appx. 364, 368 (3d Cir. 2004); Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936; Torres v. Barnhart, 139 Fed.Appx. 411, 414 (3d Cir. 2005) (ALJ permissibly rejected treating opinion “in combination with other evidence of record including Claimant's own testimony”); Kays v. Colvin, No. 1:13-CV-02468, 2014 WL 7012758, at *7 (M.D. Pa. Dec. 11, 2014). According to the regulations “[administrative law judges] will consider . . . medical evidence from . . . Federal or State agency medical or psychological consultants . . . [and] . . . must consider [agency medical or psychological consultant] evidence according to [§§ 404.1520b, 404.1527, 416.920b, and 416.927] because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation.” 20 C.F.R. §§ 404.1513a(b)-(1), 416.913a(b)-(1) (effective March 27, 2017). “Furthermore, the ALJ relied upon the state agency expert opinions in making this disability determination, a course of action that is authorized by law particularly when that state opinion draws significant support from the clinical record, as did the opinion of [the State Agency doctor] in this case.” Michael v. Berryhill, No. 3: 16-CV-00658, 2018 WL 279095, at *7 (M.D. Pa. Jan. 3, 2018) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
In April 2017, state agency physician Dr. Lawrence Schaffzin rendered the only detailed medical opinion on Plaintiff's physical work-based limitations and concluded Plaintiff could perform a reduced range of light work. (Tr. 79-82). Based upon review of the record, Dr. Schaffzin opined Plaintiff retained the ability to: (1) occasionally lift and/or carry twenty pounds; (2) frequently lift and/or carry ten pounds; (3) stand and/or walk about six hours in an eight-hour workday; (4) push and/or pull without limitation; (5) occasionally climb ladders and stoop, and; (6) frequently climb stairs, balance, kneel, crouch, and crawl. (Tr. 80-82). In support of the opined limitations, Dr. Schaffzin cited: (1) history of L5/S1 microdiscectomy with revision microdiscectomy in November 2012 (Tr. 220); (2) orthopedic record dated April 3, 2015 indicating full range of cervical motion, limited thoracolumbar range of motion, normal gait, negative straight leg raise test, full range of motion in the hip, normal strength and sensory examination, and x-ray indication loss of disc height at ¶ 4/5 and L5/S1 levels (Tr. 220-21); (3) posterior lumbar decompression L4-S1 fusion, repeat decompression L4/5 and L5/S1 performed on October 20, 2015 (Tr. 325-58); (4) an orthopedic record dated October 3, 2016, indicating intervertebral disc degeneration in the lumbar region (Tr. 260-62); (5) a CT scan dated January 10, 2017, indicating lumbar-disc bulge mild disc protrusion at ¶ 3/4 level, lumbar degenerative disc disease (“DDD”) and facet joint arthropathy (Tr. 270-71); (6) a record dated February 17, 2017, indicating Plaintiff's BMI, negative straight leg raise (“SLR”) test and normal sensory and motor function. (Tr. 272); (7) a record dated February 20, 2017, indicating clear lungs, cardiovascular examination demonstrating regular rate and rhythm, normal gait, and that Plaintiff was assessed with hypertension, back muscle spasm, and lumbar disc displacement (Tr. 298-300). (Tr. 81). Dr. Schaffzin also noted Plaintiff's ADLs include the ability to maintain personal care, prepare meals, engage in light cleaning, drive, and shop. (Tr. 82). Dr. Schaffzin explained the medically determinable impairment (“MDI”) of lumbar DDD with microdiscectomy and fusion and the documented intensity and persistence of symptoms is consistent with the evidence in the record. (Tr 82). The ALJ found Dr. Schaffzin's opinion to be consistent with Plaintiff's orthopedic treatment records, which document improvement in symptoms after the October 2015 surgery. (Tr. 19). However, the ALJ determined Plaintiff's residual functional capacity to have greater restrictions to include postural limitations with a sit/stand option “to guard against any exacerbation of symptoms” and, to credit to a degree, Plaintiff's subjective complaints. (Tr. 19).
The undersigned finds no reversible error. The ALJ is charged with reviewing the record as a whole and such includes evaluating medical opinions as a whole to discern internal consistency as well as consistency with the entire record. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole, the more weight [the ALJ] will give to that medical opinion”) (emphasis added); 20 C.F.R. §§ 404.901, 416.1401 (“Preponderance of the evidence means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not”); 20 C.F.R. §§ 404.953(a), 416.1453(a) (“The administrative law judge must base the decision on the preponderance of the evidence offered at the hearing or otherwise included in the record”). Substantial evidence supports the ALJ's reliance on Dr. Schaffzin's April 2017 opinion and the limitations in excess of Dr. Schaffzin's opinion to account for the totality of the record, including records from treating Physician Dr. Gillick. See Durden v. Colvin, 191 F.Supp.3d 429, 455-56 (M.D. Pa. 2016) (explaining cases in support of an ALJ crafting an RFC that falls between competing opinions).
Although Dr. Schaffzin's April 2017 opinion precedes Dr. Gillick's April 2018 treatment record stating Plaintiff should continue “restricted activity” (Tr. 1149), such is insufficient to warrant a remand. See Louis v. Comm'r Soc. Sec., 808 Fed.Appx. 114, 120 (3d Cir. 2020) (affirming an ALJ's reliance on medical opinions where there is no evidence of deterioration or progression of symptoms); Massaglia v. Saul, 805 Fed.Appx. 406, 408-10 (7th Cir. 2020) (affirming ALJ decision where medial opinion preceded back surgery); Phillips v. Barnhart, 91 Fed.Appx. 775, 782 (3d Cir. 2004) (affirming ALJ decision where treatment notes before and after surgery do not demonstrate an inability to work). As discussed above, the ALJ addressed the three pages ((Tr. 1147-49) (treatments records dated May 10, 2017, October 16, 2017, and April 16, 2018)) of medical evidence regarding Plaintiff's physical limitations that followed Dr. Schaffzin's April 2017 opinion. (Tr. 15 (citing 1138-1149)); (Tr. 18 (citing Tr. 1139, 1144, 1149)); (Tr. 19 (citing 1140-1149)). Moreover, Dr. Gillick's “restricted activity” recommendation exists in a December 2015 record which was accounted for in Dr. Schaffzin's April 2017 opinion (Tr. 1139). The ALJ acknowledge this December 2015 record wherein Plaintiff:
was “doing excellent” [Tr. 1139]. She was pleasantly surprised by how much her pain had improved [Tr. 1139]. X-rays showed intact instrumentation, good alignment, and good early healing [Tr. 1139 ]. On examination, there was no swelling, redness, or tenderness; there was no discomfort with flexion, extension, or rotation; straight leg raise was negative; motor function, sensation, and reflexes were intact [Tr. 1139].(Tr. 18). However, Plaintiff does not highlight the “restricted activity” recommendation in this record as noteworthy. (Tr. 1139). The fact that Dr. Schaffzin's April 2017 opinion reviewed Dr. Gillick's December 2015 recommendation of “restricted activity” and still opined Plaintiff was capable of work, suggests the subsequent two-time repetition of the recommendation is insufficient to warrant a different outcome in this case. Based on the foregoing, the Court concludes that substantial evidence supports the ALJ's allocation of weight to the medical opinions in support of the RFC.
B. Consistency of the Evidence
Plaintiff argues the ALJ erred in concluding severity of symptoms alleged by Plaintiff was not consistent with the totality of the record because the ALJ relied on instances of symptom improvement between February 2015 and October 2015 and failed to account for the exacerbation of symptoms due to the subsequent discectomy in October 2015. Pl. Br. at 11. Plaintiff's argument critically fails to acknowledge the above-discussed April 2017 opinion rendered by Dr. Lawrence Schaffzin. (Tr. 79-82). In addition to the abovementioned summarized evidence regarding Plaintiff's black-related impairments, the ALJ summarized Plaintiff's testimony (Tr. 17) and noted that although Dr. Schaffzin's April 2017 is consistent with the evidence, the RFC included “more restrictive exertional and postural limitations and a sit/stand option to guard against any exacerbation of symptoms” to account for Plaintiff's subjective complaints. (Tr. 19).
Where a 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 consistency finding on the claimant's subjective statements. Social Security Ruling (“SSR”) 16-3p; 20 C.F.R. § 404.1529(c)(2), (3); Id. § 416.929(c)(2), (3). Although on March 16, 2016, the Social Security Administration eliminated the use of the term “credibility” from the agency's sub-regulatory policy, the agency continues to evaluate a disability claimant's statements of symptoms using a two-step process:
In determining whether an individual is disabled, we consider all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record. We define a symptom as the individual's own description or statement of his or her physical or mental impairment(s). Under our regulations, an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment or disability. However, if an individual alleges impairment-related symptoms, we must evaluate those symptoms using a two-step process set forth in our regulations.
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities sSee Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims.
Substantial evidence supports the ALJ's allocation of weight to the medical opinions and the ALJ's reliance on these opinions to support finding Plaintiff's limitations were still consistent with the ability to work. The question is not whether Plaintiff demonstrated some evidence that could support a finding of disability. See Kirk v. Colvin, No. 4:13-CV-02735, 2015 WL 5915748, at *13 (M.D. Pa. Oct. 8, 2015). The question is whether the ALJ reasonably concluded that the record in totality failed to support Plaintiff's claims. Id. An ALJ is afforded substantial discretion in addressing contradictions and reviewing the totality of the record for consistency. See Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 n. 9 (3d Cir. 2014) (“it is within the ALJ's discretion to weigh the evidence . . . “); Dula v. Barnhart, 129 Fed.Appx. 715, 718 (3d Cir. 2005); Miller v. Comm'r of Soc. Sec., 172 F.3d 303, 305-06 (3d Cir. 1999). In this instance, the ALJ did not focus solely on medical record excerpts reflecting instances of Plaintiff's benign symptoms and improvement while neglecting exacerbations and instances of more severe symptoms. See (Tr. 15-21); Cox v. Berryhill, No. CV 16-5434, 2018 WL 7585561, at *3-4 (E.D. Pa. Dec. 18, 2018).
In considering the ALJ's consistency analysis, substantial evidence supports the ALJ's conclusion that the record in totality, including Dr. Schaffzin's opinion and Plaintiff's ADLs, do not support finding the work-preclusive limitations alleged by Plaintiff. The Court finds the ALJ properly considered the consistency of Plaintiff's allegations with the record, in totality and substantial evidence supports the ALJ's evaluation of Plaintiff's statements of symptoms. See SSR 16-3p; 20 C.F.R. §§ 404.1529, 416.929.
C. VE Hypothetical's Inclusion of Non-Exertional Limitations
Plaintiff argues the ALJ failed to provide a valid explanation for an RFC limiting Plaintiff to performing “simple routine tasks, not at a production rate pace (assembly-line work).” Pl. Br. at 10-11. Without acknowledging the April 2017 psychological opinion from Dr. Erin Urbanowicz (Tr. 77-80, 82-83), Plaintiff agues the “ALJ noted only that the record revealed that the Plaintiff's attention and concentration were ‘ok, '” and “this comment was from Dr. Assante on June 5, 2015, which was well before the Plaintiff had increased pain in her back leading to the October 2015 discectomy.” Pl. Br. at 10-11. This argument is without merit.
Regarding the ALJ's Step Four finding of Plaintiff's limitation in concentration, persistence, or pace, the ALJ summarized the medical record and allocated the greatest weight to Dr. Urbanowicz's April 2017 opinion, explaining:
As for her mental impairments, [Plaintiff] has been receiving conservative outpatient treatment for ADHD, bipolar disorder, and mood disorder [Tr. 238-53, 1108-37]. She was taking Zoloft as prescribed by her primary care physician, but this was ineffective, so she started seeing a psychiatrist in May of 2015 [Tr. 1109]. She reported mood swings, depression, disturbed sleep, poor concentration, angry outbursts, and forgetfulness (Id.). She appears to have improved with treatment. On examination, [Plaintiff's] mood is euthymic and cooperative; affect is appropriate; mental status is oriented; and she denies suicidal/homicidal thoughts [Tr. 238, 241, 244-48, 1113, 1116]. Attention and concentration are “ok” [Tr. 244-50]. Therefore, the claimant can sustain simple routine tasks, not at a production rate pace.
Erin Urbanowicz, PsyD, a state agency reviewing psychologist, opined that [Plaintiff] can complete simple tasks and follow simple instructions on a sustained basis as well as only mild limitations understanding remembering and applying information, social interaction and adapting and managing oneself. He further found moderate limitations in concentration persistence and pace. [Tr. 77-80, 8283]. This is consistent with [Plaintiff's] outpatient therapy records and receives great weight. . . . Additionally she did not have any psychiatric admissions, partial hospitalizations or structured living arrangements due to psychiatric impairments.(Tr. 18-19).
Substantial evidence supports the RFC limited to “simple routine tasks, not at a production rate pace (assembly line work).” See Hess, 2019 WL 3418953, at *10-13. In Hess, the Third Circuit agreed with the Commissioner that a “simple tasks” limitation can fairly reflect a claimant's impairments when that claimant has been found to face “moderate” difficulties in “concentration, persistence, or pace” when an ALJ provides a “valid explanation.” Hess v. Comm'r Soc. Sec., No. 18-2226, 2019 WL 3418953, at *10 (3d Cir. July 30, 2019). In this instance, the ALJ gave more detailed limitations beyond the “simple tasks” limitation analyzed in Hess, and specified the tasks were not to include “production rate pace (assembly-line work).” (Tr. 16). Compare with Hess, 2019 WL 3418953, at *10-13. Additionally, the ALJ's explanation for allocating greatest weight to Dr. Urbanowicz's April 2017 opinion, and discussion of the relevant medical evidence, amounts to a “valid explanation” for the limitations in the RFC to address Plaintiff's limitation in concentration, persistence, or pace. See Hess v. Comm'r Soc. Sec., No. 182226, 2019 WL 3418953, at *10 (3d Cir. July 30, 2019). The undersigned finds no reversible error.
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions. at *3. Diaz v. Colvin, No. 4: 16-CV-00358, 2017 WL 1078229, at *15 (M.D. Pa. Mar. 22, 2017). Kibe v. Comm'r Soc. Sec., 787 Fed.Appx. 801, 802 (3d Cir. 2019).