Opinion
CIVIL 1:22-CV-2051
07-06-2023
NATHAN SWEGER, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, 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 June 17, 2020. A hearing was held before an Administrative Law Judge (“ALJ”), and the ALJ found that Sweger was not disabled from his alleged onset date of June 17, 2020, through the date of the ALJ's decision, November 26, 2021.
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 supplemental security income, alleging disability due to obsessive compulsive disorder, depression, anxiety, lack of energy, thyroid conditions, recovering from thyroid cancer, and kidney stones. (Tr. 77). He alleged an onset date of disability of June 17, 2020. (Tr. 16). Sweger had a high school education and no prior history of work. (Tr. 26).
With respect to Sweger's impairments, the record revealed the following: Throughout 2019, Sweger treated with Dr. Valentins Krecko, M.D., for his anxiety, depression, and obsessive-compulsive disorder (“OCD”). (Tr. 448-49). In April of 2019, Dr. Krecko filled out a questionnaire for Sweger's previous disability application, in which he opined that Sweger was marked to extremely limited in 15 of 16 areas of functioning due to his anxiety and OCD. (Tr. 452-59). Dr. Krecko further opined that Sweger would be absent from work four or more days per month, and that he would have difficulty working a regular job on a sustained basis due to severe anxiety. (Tr. 458-59).
However, Dr. Krecko's treatment notes from October of 2019 indicated that Sweger's anxiety symptoms were under control, and he had a euthymic mood and appropriate affect. (Tr. 448). In April of 2020, Dr. Krecko noted that Sweger was struggling with self-quarantining, but that his anxiety was manageable. (Id.) He had a euthymic mood and appropriate affect. (Tr. 449). At an appointment with his primary care physician in June of 2020, Sweger reported episodic anxiety and fatigue, and he denied depression and anxiety at that time. (Tr. 484). On examination, he was in no acute distress, was pleasant and cooperative, and answered questions. (Tr. 485). Dr. John Forney, M.D., continued him on his medications and ordered an iron supplement to help with Sweger's fatigue. (Tr. 486).
In September of 2020, Sweger underwent a mental status evaluation with Dr. Kathleen Ledermann, Psy.D. (Tr. 510-17). At this evaluation, Sweger reported that he had problems with sleeping and with his appetite, and that he worried about many things and experienced anxiety attacks. (Tr. 511). On examination, Sweger exhibited fluent speech and had adequate expressive and receptive language abilities; coherent and goal-directed thought processes; appropriate affect and a nervous mood; impaired attention and concentration; intact memory skills; and good insight and judgment. (Tr. 511-12). Dr. Ledermann opined that he had no to mild limitations in understanding, remembering, and carrying out complex instructions and his ability to make judgments on complex work-related decisions, and no limitations in interacting with others. (Tr. 515-16).
Treatment notes from this time further indicate that Sweger reported variable depression, but that his medications were helpful. (Tr. 527). At an annual examination in September of 2020, Sweger reported no depression and anxiety at that time, but he did report episodic anxiety and fatigue. (Id.) His OCD symptoms were noted to be stable. (Id.) His iron levels were low, and it was noted that he was not taking his iron supplement. (Id.) At a visit with Dr. Parul Kakaria, M.D., in September, Sweger's thyroglobulin levels were elevated, and it was noted he had a history of thyroid cancer and a total thyroidectomy in 2015. (Tr. 542). He reported experiencing fatigue, but his mental status examination was normal. (Tr. 542-43). It was recommended that he undergo a full body scan. (Tr. 545). The scan revealed that there was no uptake within the neck or thyroid bed, and no definitive scintigraphic evidence for metastatic disease. (Tr. 584).
Treatment notes from October of 2020 reported that Sweger's anxiety was tolerable on his current medications. (Tr. 554). He was noted to have an appropriate affect and euthymic mood. (Id.) At a follow up visit for his thyroid issues in January of 2021, Dr. Kakaria's notes showed a normal mental status examination, in that Sweger's mood, affect, behavior, thought content, and judgment were normal. (Tr. 591). Sweger reported fatigue at this visit. (Tr. 590). Around this time, Dr. Krecko's notes from January of 2021 indicated that Sweger's OCD symptoms had gotten worse since Covid, but his mood was noted as stable. (Tr. 695).
In March of 2021, Sweger reported no concerns at a visit with his primary care doctor. (Tr. 618). Sweger further reported experiencing episodic fatigue and that his depression and anxiety were helped with medication. (Id.) Sweger's medications were continued for his anxiety and OCD. (Tr. 620). Dr. Krecko's notes from April of 2021 note that Sweger's medication was helping with his anxiety, and he was noted to have goal-directed though processes. (Tr. 695). Dr. Krecko filled out a questionnaire in May of 2021, opining that Sweger had the same marked to extreme limitations as set forth in Dr. Krecko's 2019 questionnaire. (Tr. 696-704).
At a visit with his primary care provider in June of 2021, it was noted that Sweger was taking his medications as directed for his hypothyroidism, depression, anxiety, and OCD. (Tr. 677). His mood was stable, he was pleasant and cooperative, and was in no acute distress. (Tr. 677-78). He again reported episodic fatigue, and it was noted that he was iron deficient and not taking his iron on a regular basis. (Tr. 677). Dr. Forney noted similar findings at a follow up visit in September of 2021. (Tr. 680-82). Dr. Krecko opined in October of 2021 that Sweger was unemployable due to his anxiety. (Tr. 687, 695).
Thus, there was an unexplained dichotomy between the extreme medical impairment opinions expressed by Dr. Krecko, and the doctor's own treatment notes, which frequently described Sweger's condition in much more benign terms.
It was against the backdrop of this medical opinion and clinical evidence that an ALJ conducted a hearing on Sweger's disability application on November 17, 2021. (Tr. 33-46). Sweger and a Vocational Expert both appeared and testified at this hearing. (Id.) Following this hearing, on November 26, 2021, the ALJ issued a decision denying Sweger's application for disability benefits. (Tr. 13-32). In this decision, the ALJ first concluded that Sweger had not engaged in substantial gainful activity since the date of his alleged onset of disability, June 17, 2020. (Tr. 18). The ALJ then found at Step 2 of the sequential analysis which governs disability claims that Sweger suffered from the following severe impairments: 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. 19-20).
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: he requires work that is limited to simple and routine tasks involving only simple work-related decisions with few, if any, workplace changes; he is precluded from production pace work; and he is limited to only occasional interaction with supervisors, coworkers, and the public.(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 the opinion evidence, the ALJ considered the opinion of state agency medical consultants who opined that Sweger did not suffer from a severe physical impairment and found these opinions persuasive, as they were consistent with the medical evidence of record. (Tr. 24).
Regarding Sweger's mental impairments, the ALJ found the opinion of the state agency consultants to be persuasive. On this score, Dr. Karen Weitzner, Ph.D., opined in September of 2020 that Sweger was moderately limited in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (Tr. 82-83). Similarly, Dr. John Gavazzi, Psy.D., opined in January of 2021 that Sweger had mild to moderate limitations in these areas of functioning, and that Sweger could perform simple routine work in a stable environment. (Tr. 100, 103-07). The ALJ reasoned that these opinions were consistent with the totality of the medical evidence which showed that Sweger did not require extensive treatment, did not participate in mental health therapy, and managed his symptoms with medication. (Tr. 25). The ALJ further found the opinion of Dr. Lederman unpersuasive, reasoning that Sweger did have some limitations in the areas of functioning as demonstrated by the medical record. (Id.) Finally, the ALJ found the opinions and 2019 and 2021 statements of Dr. Krecko to be unpersuasive. (Id.) The ALJ reasoned that Dr. Krecko's marked to extreme limitations in almost all areas of daily functioning were not supported by the record, including Dr. Krecko's own notes which showed relatively normal mental status examinations. (Id.) Moreover, the ALJ did not provide an analysis of Dr. Krecko's October 2021 statement that Sweger was unable to work, as the determination of disability is one left to the Commissioner. (Tr. 26).
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. 22-23). Sweger testified that he did not drive because he had fear and anxiety about driving, and he never got his license because he did not properly study for the examination and failed. (Tr. 37). He stated that he did some chores at home, including taking his dog outside, taking the trash out, and doing laundry, but he did not cook. (Tr. 37-38). He testified that he liked to watch television and listen to music, as well as play games on the computer. (Tr. 38). Sweger reported that he napped every day for roughly three hours. (Tr. 39). He further stated that he sometimes forgot to take his medications, and that despite taking medication, he sometimes experienced anxiety attacks once every few months. (Tr. 39-40). Regarding his OCD, Sweger reported that he experienced intrusive thoughts and asked questions multiple times for reassurance. (Tr 41). He testified that he could not work because he would get emotional if he messed something up, he has a hard time remembering things, and because he gets tired at the end of the day. (Tr. 42).
The ALJ found Sweger's testimony to be inconsistent with the objective clinical findings and the conservative nature of his treatment. (Tr. 23). The ALJ noted that Sweger's recent treatment for his mental impairments consisted mainly of medication management and that he required no hospitalizations, inpatient treatment, or intensive outpatient treatment. (Id.) The ALJ further recognized that Sweger's mental status evaluations were relatively benign during the relevant time. (Id.)
Having made these findings, noting that Sweger had no past work, the ALJ concluded at Step 5 that Sweger could perform work as a cleaner/housekeeper, bakery worker/conveyor line, and a produce weigher. (Tr. 26-27). Accordingly, the ALJ found that Sweger had not met the stringent standard prescribed for supplemental security income and denied his claim. (Tr. 27).
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.
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 June of 2020 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 163p. 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.
At the outset, Sweger contends that the ALJ failed to properly evaluate the opinions of Dr. Krecko, Sweger's treating psychiatrist. On this score, we first note that “[t]he ALJ-not treating or examining physicians or State agency consultants-must make the ultimate disability and RFC determinations.” Chandler, 667 F.3d at 361. Further, in making this assessment of medical opinion evidence, “[a]n ALJ is [also] entitled generally to credit parts of an opinion without crediting the entire opinion.” Durden, 191 F.Supp.3d at 455. Finally, when there is no evidence of any credible medical opinion supporting a claimant's allegations of disability it is also well settled that “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.
Here, the ALJ considered the assessments rendered by Dr. Krecko from April of 2019 and May of 2021, which opined that Sweger experienced marked to extreme limitations in almost all areas of functioning due to his anxiety and OCD. The ALJ found these opinions unpersuasive, reasoning that they were not supported by Dr. Krecko's own treatment notes and were not consistent with the relatively normal and benign clinical findings during the relevant time. Indeed, the ALJ noted the findings in the record of a euthymic mood, appropriate affect, good insight and judgment, and intact memory and reasoned that the extreme limitations set forth by Dr. Krecko were not supported by the overall medical record. Instead, the ALJ found persuasive the opinions of the state agency consultants, who opined in September of 2020 and January of 2021 that Sweger experienced mild to moderate limitations in the four broad areas of functioning, and that he could perform simple routine work. The ALJ further provided no analysis as to Dr. Krecko's October 2021 statement that Sweger was unemployable, reasoning that the determination of disability is one left to the Commissioner.
On this score, the ALJ was confronted with several medical opinions, the majority of which found that Sweger could perform a range of simple, routine work. The ALJ found these opinions persuasive and reasoned that they were supported by and consistent with the medical record as a whole, which contained relatively benign findings and conservative treatment. The ALJ further found Dr. Krecko's opinions unpersuasive because they were not consistent with the doctor's own treatment notes or the majority of the medical record for the relevant time period, and further, opined on the ultimate determination of disability.
These are valid considerations for the ALJ to take into account when making a disability determination. Indeed, it is well settled that Instead, the ALJ may discount such a treating source opinion when it conflicts with other objective tests or examination results. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-03 (3d Cir. 2008). Likewise, an ALJ may conclude that discrepancies between the treating source's medical opinion, and the doctor's actual treatment notes, justifies giving a treating source opinion little weight in a disability analysis. Torres v. Barnhart, 139 Fed.Appx. 411, 415 (3d Cir. 2005). Here, the ALJ has made such findings, and those findings draw adequate support from the administrative record. Accordingly, we conclude that the treatment of this opinion evidence is supported by substantial evidence in the record.
We also conclude that the ALJ's treatment of Sweger's reported symptoms is supported by substantial evidence. The ALJ considered Sweger's subjective complaints, in which he reported that he could not drive due to fear and anxiety, that he experienced panic attacks, and that he experienced symptoms from his OCD. However, the ALJ concluded that these statements were not entirely consistent with the objective medical evidence, which indicated that Sweger mainly treated with medication for his mental impairments and required no inpatient or outpatient treatments, and he reported that his symptoms were stable on medications. The ALJ further reasoned that the objective examination findings, such as a euthymic mood, appropriate affect, good insight and judgment, intact memory, and goal-directed thought processes, did not support Sweger's subjective limitations.
Further, the ALJ considered Sweger's activities of daily living, including household chores, shopping, watching television, and playing computer games, and concluded that these activities of daily living did not support Sweger's subjective limitations. In this regard, 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's 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 stable with medication. 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.
At bottom, it appears that the plaintiff is requesting that this court re-weigh the medical and 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.