Opinion
Civil 1:20-CV-1079
01-19-2022
NATHAN SWEGER, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant
Brann Chief Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE
I. Introduction
The Supreme Court has underscored for us the limited scope of our substantive review when considering Social Security appeals, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. __, __, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,
e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
Nathan Sweger filed an application for supplemental security income on February 26, 2018 and filed an application for child's insurance benefits based on disability on March 13, 2018. A hearing was held before an Administrative Law Judge (“ALJ”), and the ALJ found that Sweger was not disabled prior to March 29, 2014, the date he attained the age of 22, and that Sweger was not entitled to SSI benefits because he was not disabled.
Sweger now appeals this decision, arguing that the ALJ's decision is not supported by substantial evidence. However, after a review of the record, and mindful of the fact that substantial evidence “means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, '” Biestek, 139 S.Ct. at 1154, we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner denying this claim.
II. Statement of Facts and of the Case
Nathan Sweger filed for SSI and child disability insurance benefits, alleging disability due to obsessive compulsive disorder, learning disorder, autism, depression, anxiety, and thyroid cancer in remission. (Tr. 205). He alleged an onset date of disability of March 30, 1998, when he was 6 years old. (Tr. 65). Sweger had a high school education and no prior history of work. (Tr. 24).
A claimant is entitled to child's benefits under 20 C.F.R. § 404.350(a) if he can show he: (1) is a child of the insured; (2) is dependent on the insured; (3) applies for benefits; (4) is not married; and (5) is under 18 or is 18 years old or older and had a disability before he became 22 years old. 20 C.F.R. 404.250(a)(1)-(5); Ricci v. Apfel, 159 F.Supp.2d 12, 16 n.3 (E.D. Pa. 2001).
Sweger had a history of anxiety and depression, as well as learning disorders.Sweger received accommodations in several aspects of his schooling, including in math classes. (Tr. 297). It was noted that he experienced self-doubt and sometimes became overwhelmed, but that he responded well to breaking up his assignments into manageable workloads. (Id.) A Full Scale IQ score indicated that Sweger fell in the low average range of intellectual functioning. (Tr. 322). It was noted that Sweger was not viewed as having specific learning disabilities, but that he had a significant deficit in mathematics calculation. (Tr. 325).
While a majority of the administrative record contains records of Sweger's physical impairments, including his history of thyroid cancer and kidney stones, the plaintiff focuses his argument on his mental impairments. Accordingly, we will focus our discussion on the plaintiff's mental impairments only.
As for his anxiety and depression, Sweger treated with Valentins Krecko, M.D., beginning in 2011. In February 2011, Dr. Krecko diagnosed Sweger with Obsessive-Compulsive Disorder, Paraphelia NOS, Fetishism, and Mathematics Disorder and started him on medication. (Tr. 675-78). Dr. Krecko's notes show that Sweger had intrusive and sometimes suicidal thoughts, doubts about his religion, and a fetish with dead animals. (Tr. 679-89). Dr. Krecko also noted that Sweger was reluctant to try and get a job or his driver's permit due to his high anxiety. (Id.) These symptoms were a recurring theme throughout Sweger's treatment with Dr. Krecko. (Tr. 679-89).
Despite these symptoms, however, Dr. Krecko's progress notes consistently indicate that Sweger's conditions improved with medication and therapy. In July of 2011, Dr. Krecko noted that Sweger was “feeling less anxious, ” and he was “overall doing better” in December 2011. (Tr. 688). Progress notes show that his “mood [] remained stable” in November 2013, and that Sweger reported “he feels [his medication] helps.” (Tr. 685). After increasing some of his medications in 2017, Sweger “reported rapid improvement in crying and low moods.” (Tr. 684). Further, in 2018, Sweger reported “continued relief from severe anxiety on current [medications]” in April, and Dr. Krecko noted in October that Sweger “continues to experience considerable relief from anxiety and depression on current Rx.” (Tr. 679-80).
In 2017 and 2018, Sweger was evaluated by the Office of Vocational Rehabilitation. (Tr. 638-42). These notes indicate that Sweger was interested in pursuing Personal Work Adjustment Training through Goodwill in October of 2017 and expressed that he wanted to work 2 days per week. (Tr. 641). In January 2018, it was noted that Sweger was talking with a counselor to discuss different careers. (Tr. 640). At this time, Sweger had reported to a mental health counselor that he “will start working at some time, ” but was unsure of when he was starting. (Tr. 569). He also expressed disappointment that it would take time and work to start feeling better. (Tr. 570). In February of 2018, the counselor noted that Sweger “does not desire to change anything at this time. He shared that he likes to play video games and that he does not want to stop or limit his time doing this.” (Tr. 571). The counselor also opined that Sweger appeared to want an easy way to feel better and did not want to change his lifestyle. (Id.)
Sweger was evaluated by Christopher Gipe, M.S., a psychological consultative examiner, in May 2018. (Tr. 448-55). Mr. Gipe diagnosed Sweger with unspecified bipolar disorder, unspecified depressive disorder, panic disorder, and unspecified anxiety disorder. (Tr. 451). On examination, Mr. Gipe noted that Sweger was oriented to person, place, and time, that his speech was fluent and clear, and that his thought processes were coherent and goal directed. (Tr. 450). He rated Sweger's insight and judgment fair but noted that Sweger had no memory or concentration deficits, and that his intellectual functioning appeared to be within average range. (Id.) Ultimately, Mr. Gipe's prognosis was fair to guarded, and he recommended that Sweger partake in individual psychological therapy. (Tr. 451). Mr. Gipe also filled out a medical source statement, in which he opined that Sweger was moderately limited in his ability to interact appropriately with coworkers, supervisors, and the public, and moderately limited in responding to usual work situations and changes in routine work setting. (Tr. 454).
In June of 2018, Sweger was evaluated by Thomas Fink, Ph.D., a state agency psychological consultant. (Tr. 97-100). Dr. Fink opined that Sweger had a mild limitation in understanding, remembering, and applying information; a moderate limitation in interacting with others; a mild limitation in concentrating, persisting, and maintaining pace; and a moderate limitation in adapting or managing oneself. (Tr. 98). Dr. Fink further opined that Sweger could understand and follow simple instructions, relate and communicate with others, meet schedule demands, persist at simple tasks, and make simple decisions. (Tr. 100). Overall, Dr. Fink found that Sweger could perform simple, routine, repetitive tasks in a stable environment; that he would be able to maintain regular attendance; and that he was able to carry out simple instructions. (Id.)
In April 2019, Dr. Krecko filled out a mental impairment questionnaire regarding Sweger's abilities. (Tr. 834-42). Dr. Krecko opined that Sweger would be unable to tolerate the demands of regular employment due to his anxiety and OCD. (Tr. 835-36). Dr. Krecko noted that Sweger had marked limitations in almost every aspect of mental functioning, including the ability to understand, remember, and carry out very short and simple instructions; make simple work-related decisions; ask simple questions or request assistance; and respond appropriately to changes in a routine work setting. (Tr. 840). Dr. Krecko further opined that Sweger would be absent from work four or more days per month. (Tr. 841).
It was against the backdrop of this medical opinion and clinical evidence that an ALJ conducted a hearing on Sweger' disability application on May 31, 2019. (Tr. 31-63). Sweger and a Vocational Expert both appeared and testified at this hearing. (Id.) Following this hearing, on July 18, 2019, the ALJ issued a decision denying Sweger' application for disability benefits. (Tr. 15-25). In this decision, the ALJ first concluded that Sweger had not attained the age of 22 as of the alleged onset date and had not engaged in substantial gainful activity since the date of his alleged onset of disability. (Tr. 17). The ALJ then found at Step 2 of the sequential analysis which governs disability claims that Sweger suffered from the following severe impairments: mathematics disorder, major depressive disorder, generalized anxiety disorder, and obsessive compulsive disorder. (Id.) At Step 3 the ALJ concluded that none of these impairments met or equaled the severity of a listed impairment under the Commissioner's regulations. (Tr. 18-20).
Between Steps 3 and 4, the ALJ then concluded that Sweger:
[H]a[d] the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: limited to simple and routine tasks. The claimant can make simple work-related decisions and tolerate occasional changes in the work setting. He can tolerate occasional interaction with the public and coworkers.(Tr. 20).
In reaching this result, the ALJ considered the medical record as detailed above, as well as medical opinion evidence and Sweger's reported symptoms. With respect to Sweger's symptoms, the ALJ found that Sweger's statements concerning the intensity, persistence, and limiting effects of his impairments were not entirely consistent with the medical evidence. (Tr. 21). Sweger reported an ability to run some errands for his mother, do laundry, and take care of the dog, but that he depended on his mother to drive, cook, and manage his money. (Tr. 43, 47, 50, 52-54). He testified that he was on several medications for his depression and anxiety, and that his medications helped control his symptoms. (Tr. 45-46). He further testified that he spent a lot of time playing video games or on the computer. (Tr. 42-43, 51).
The ALJ found Sweger's testimony to be only partially consistent with the medical record. The ALJ reasoned that the totality of the evidence, including the level of treatment and Sweger's response to treatment, his ability to perform some activities of daily living, and clinical objective findings indicated that Sweger could perform simple work activity. (Tr. 21). The ALJ noted that Sweger's symptoms were treated conservatively with medication and outpatient counseling, and that Sweger testified his medications were effective. (Id.) The ALJ further reasoned that Sweger was able to take part in activities such as grocery shopping, doing laundry, taking care of his pet, and playing video games. (Tr. 22). Ultimately, the ALJ took into account the clinical findings and limited Sweger to simple work activity, only occasional changes in the workplace, and occasional social interaction with coworkers and the public. (Id.)
The ALJ also considered the medical opinion evidence. The ALJ considered Dr. Fink's June 2018 psychological evaluation and found his opinion generally persuasive. (Id.) The ALJ reasoned that Dr. Fink's findings of moderate limitations were consistent with Sweger's conservative treatment of his symptoms. (Id.) The ALJ found that this opinion was also consistent with the largely normal findings on mental status examination regarding concentration, memory, insight, and judgment. (Id.)
The ALJ also considered the opinion of Mr. Gipe and found this opinion to be somewhat persuasive. On this score, the ALJ found that Sweger was more limited than Mr. Gipe opined and thus limited Sweger to simple work activity based on his history of intrusive thoughts, anxiety, OCD, and depression. (Id.) The ALJ also found that Mr. Gipe's opinion that Sweger had a limited ability to interact socially and respond to changes in the work setting was consistent with Sweger's dependency on his mother for some activities of daily living. (Tr. 22-23).
Finally, the ALJ considered the April 2019 opinion of Dr. Krecko to be of limited persuasiveness. (Tr. 23). The ALJ found that this opinion, which stated that Sweger had a marked limitation in almost every area of work and social functioning, was inconsistent with the overall medical evidence and Dr. Krecko's own notes. (Id.) On this score, the ALJ noted that the treatment records reflected improvement of Sweger's symptoms with his medication, and that Sweger's depression was characterized as moderate. (Id.) The ALJ also pointed to statements made by Dr. Krecko that were inconsistent with each other. (Id.)
Having made these findings, noting that Sweger had no past work, the ALJ concluded at Step 5 that there were a significant number of jobs in the national economy that Sweger could perform. (Tr. 24-25). Accordingly, the ALJ found that Sweger had not met the stringent standard prescribed for child disability insurance benefits and SSI benefits and denied his claim. (Tr. 25).
This appeal followed. On appeal, Sweger presents two issues. First, he argues that the ALJ erred in evaluating the opinion of Dr. Krecko, the plaintiff's treating psychiatrist. Second, Sweger asserts that the ALJ erred in considering the plaintiff's subjective evaluation of his symptoms. This case is fully briefed and is therefore ripe for resolution. For the reasons set forth below, under the deferential standard of review that applies here, we 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 Supreme Court has recently underscored for us the limited scope of our review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. __, __, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial
evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek, 139 S.Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that she 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, 399 F.3d at 552). 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. Admin., 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.
This principle applies with particular force to legal challenges, like the claim made here, based upon alleged inadequacies in the articulation of a claimant's mental RFC. In Hess v. Comm'r Soc. Sec., 931 F.3d 198, 212 (3d Cir. 2019), the United States Court of Appeals recently addressed the standards of articulation that apply in this setting. In Hess, the court of appeals considered the question of whether an RFC, which limited a claimant to simple tasks, adequately addressed moderate limitations on concentration, persistence, and pace. In addressing the plaintiff's argument that the language used by the ALJ to describe the claimant's mental limitations was legally insufficient, the court of appeals rejected a per se rule which would require the ALJ to adhere to a particular format in conducting this analysis. Instead, framing this issue as a question of adequate articulation of the ALJ's rationale, the court held that, “as long as the ALJ offers a ‘valid explanation,' a ‘simple tasks' limitation is permitted after a finding that a claimant has ‘moderate' difficulties in ‘concentration, persistence, or pace.'” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019). On this score, the appellate court indicated that an ALJ offers a valid explanation a mental RFC when the ALJ highlights factors such as “mental status examinations and reports that revealed that [the claimant] could function effectively; opinion evidence showing that [the claimant] could do simple work; and [the claimant]'s activities of daily living, . . . . ” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019).
In our view, the teachings of the Hess decision are straightforward. In formulating a mental RFC, the ALJ does not need to rely upon any particular form of words. Further, the adequacy of the mental RFC is not gauged in the abstract. Instead, the evaluation of a claimant's ability to undertake the mental demands of the workplace will be viewed in the factual context of the case, and a mental RFC is sufficient if it is supported by a valid explanation grounded in the evidence.
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). The definition of a disability for a child age 18 or older is the same definition used to determine a disability for purposes of SSI or disability insurance benefits. See 42 U.S.C. § 402(d)(1)(B); 42 U.S.C. § 423(d).
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 Fed.Appx. 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 Fed.Appx. 6, 11 (3d Cir. 2006); Cummings, 129 F.Supp.3d at 214-15. 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 from engaging in any of his or her past relevant work. 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 numbers 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 Medical Opinions
The plaintiff filed this disability application in March of 2018 after a paradigm shift in the manner in which medical opinions were evaluated when assessing Social Security claims. 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. However, in March 0f 2017, the Commissioner's regulations governing medical opinions changed in a number of fundamental ways. 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. As one court as aptly observed:
The regulations regarding the evaluation of medical evidence have been amended for claims filed after March 27, 2017, and several of the prior
Social Security Rulings, including SSR 96-2p, have been rescinded. According to the new regulations, the Commissioner “will no longer give any specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844, at 5867-68 (Jan. 18, 2017), see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner must consider all medical opinions and “evaluate their persuasiveness” based on the following five factors: supportability; consistency; relationship with the claimant; specialization; and “other factors.” 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
Although the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate how [he or she] considered the medical opinions” and “how persuasive [he or she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). The two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability, ” which are the “same factors” that formed the foundation of the treating source rule. Revisions to Rules, 82 Fed.Reg. 5844-01 at 5853.
An ALJ is specifically required to “explain how [he or she] considered the supportability and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2). With respect to “supportability, ” the new regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with respect to “consistency, ” “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).
Under the new regulations an ALJ must consider, but need not explicitly discuss, the three remaining factors in determining the persuasiveness of a medical source's opinion. Id. at §§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has found two or more medical opinions to be equally well supported and consistent with the record, but not exactly the same, the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3) through (c)(5). Id. at §§ 404.1520c(b)(3), 416.920c(b)(3).Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020).
Oftentimes, an ALJ must evaluate various medical opinions. Judicial review of this aspect of ALJ decision-making is still guided by several settled legal tenets. First, when presented with a disputed factual record, it is well-established that “[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, when evaluating medical opinions “ the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.'” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by an adequate, articulated rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight.
Further, in making this assessment of medical evidence:
An ALJ is [also] entitled generally to credit parts of an opinion without crediting the entire opinion. See Thackara v. Colvin, No. 1:14-CV- 00158-GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015); Turner v. Colvin, 964 F.Supp.2d 21, 29 (D.D.C. 2013) (agreeing that “SSR 96-2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions”); Connors v. Astrue, No. 10-CV-197-PB, 2011 WL 2359055, at *9 (D.N.H. June 10, 2011). It follows that an ALJ can give partial credit to all medical opinions and can formulate an RFC based on different parts from the different medical opinions. See e.g., Thackara v. Colvin, No. 1:14-CV- 00158-GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016). Finally, where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings, 129 F.Supp.3d at 214-15.
D. 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); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015).
E. The ALJ's Decision in this Case is Supported by Substantial Evidence.
In this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and “does not mean a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), but rather “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Judged against these deferential standards of review, we find that substantial evidence supported the ALJ's decision that Sweger was not entirely disabled.
In this case, the ALJ assessed the severity of Sweger's symptoms in accordance with the regulations and found that Sweger's statements regarding the intensity and persistence of his symptoms were not entirely consistent with the objective medical evidence. The ALJ reasoned that Sweger's treatment records from his treating psychiatrist showed improvement with medications and outpatient counseling. Indeed, Sweger testified that his symptoms improved with his medication. The ALJ also found that the objective clinical examinations largely showed intact attention and concentration, cooperative behavior, and coherent and goal directed thought processes. These factual determinations regarding Sweger's medical treatment were supported by evidence in the administrative record.
Further, the ALJ considered Sweger's activities of daily living. The ALJ recognized that Sweger depended on his mother for certain activities, but that he was able to engage in daily activities on his own such as doing laundry, running errands, playing video games, and taking care of the dog. Moreover, it is well settled that an ALJ can, and often must, rely upon such factors when conducting a symptom evaluation analysis. See e.g., Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014); Durden v. Colvin, 191 F.Supp.3d 429, 442 (M.D. Pa. 2016). Thus, there was no legal error in the ALJ's reliance upon these considerations when addressing the severity of Sweger' symptoms.
In the same vein, we note that substantial evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Biestek, 139 S.Ct. at 1154, supported the ALJ's symptom evaluation in this case. That symptom evaluation analysis was careful, thorough, and detailed. It focused upon an array of clinical and opinion evidence derived from various medical sources. Much of this evidence revealed that Sweger's conditions were improved with medication and outpatient therapy. Given that our task is simply to ascertain whether substantial evidence supported the ALJ's evaluation of Sweger's symptoms, we find that there is substantial evidentiary support for this symptom evaluation and the ALJ's decision. Moreover, the ALJ's symptom evaluation correctly focused upon the factors identified in the pertinent regulations: activities of daily living, the location, duration, frequency, and intensity of his reported symptoms, and the treatment he has received for these conditions. Therefore, there is no need to remand this case for further symptom evaluation.
Likewise, the ALJ's analysis of the persuasiveness of Dr. Krecko's medical opinion draws adequate support from the administrative record. Under the new analytical paradigm prescribed by Social Security regulations, persuasiveness is the touchstone for any medical opinion evaluation. Further, it is well settled that “supportability ... and consistency ... are the most important factors [to] consider when [ ] determine[ing] how persuasive [to] find a medical source's medical opinions . . . to be.” 20 C.F.R. § 404.1520c(b)(2). In this context, supportability means that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Consistency, in turn, is defined to mean that: “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1)-(2).
In this case, the ALJ aptly concluded that Dr. Krecko's highly restrictive medical opinion was not congruent with his own treatment notes. Nor was that opinion consistent with other treatment records and Sweger's self-reported activities of daily living. Thus, with respect to this medical opinion, the ALJ properly found that the elements of supportability and consistency that are essential to a finding of persuasiveness in a medical opinion were lacking. There was no error here.
Further, in light of the medical and opinion evidence, we also find that the ALJ's RFC determination sufficiently addressed Sweger's psychological impairments when it restricted him to simple routine tasks, simple work-related decision making, occasional changes in the work setting, and occasional interaction with the public and coworkers. On this score, we remain mindful that:
[C]onsistent with this deferential standard of review, when we are called upon to assess whether an ALJ has sufficiently articulated a rationale for the mental and emotional components of an RFC, we have recently been instructed that this aspect of an RFC is sufficient “as long as the ALJ offers a ‘valid explanation' ” for the mental and emotional limitations imposed upon a worker. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019). On this score, it has been held that an ALJ offers a valid explanation for a mental RFC when the ALJ highlights factors such as “mental status examinations and reports that revealed that [the claimant] could function effectively; opinion evidence showing that [the claimant] could do simple work; and [the claimant]'s activities of daily living, ....” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019).Vargas v. Saul, No. 1:19-CV-1858, 2020 WL 2468401, at *1-2 (M.D. Pa. May 13, 2020). Adopting this pragmatic approach, mindful of the clinical and opinion support for the ALJ's simple tasks RFC, we find that the ALJ has provided a valid explanation for this decision, which is all that is required under the law. Therefore, there are no grounds to set aside this decision based upon the ALJ's evaluation of the plaintiff's emotional impairments.
At bottom, it appears that the plaintiff is requesting that this court re-weigh the medical opinion evidence. This we may not do. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (“Courts are not permitted to re-weigh the evidence or impose their own factual determinations.”); see also Gonzalez v. Astrue, 537 F.Supp.2d 644, 657 (D. Del. 2008) (“In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.”) (internal citations omitted)). Rather, our task is simply to determine whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “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, 487 U.S. at 565. Finding that this deferential standard of review is met here, we conclude that a remand is not appropriate for the purpose of further assessing this opinion evidence or re-examining the ALJ's symptom evaluation in Sweger's case.
In closing, 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 can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence 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 find that substantial evidence supported the ALJ's evaluation of this case and recommend that this decision be affirmed.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should 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.