THOMAS N. O'NEILL, Jr., District Judge.
Plaintiff Shirley A. Christian brings the present action to challenge the decision by defendant Commissioner of Social Security rejecting her applications for Disability Insurance Benefit and Supplemental Security Income under Titles II and XVI respectively of the Social Security Act, 42 U.S.C. § 401,
On June 13, 2012, plaintiff, who was forty-seven years old at the time,
On July 7, 2015, plaintiff initiated the current action seeking review of the Commissioner's final decision. She filed her brief in support of her request for review on October 23, 2015, and defendant Commissioner of Social Security responded on November 24, 2015.
Plaintiff contends that her disability began on August 1, 2007. R. 185. The earliest medical notations from 2007-2009 indicate that she primarily sought medical care for various ailments, including depression and anxiety, from Dr. Timothy Quinn of Lancaster Family Associates. R. 617-22. Notes from Lancaster Family Associates throughout 2009 revealed that plaintiff still suffered from anxiety and depression and was taking Lexapro, but examinations were relatively unremarkable. R. 608-610. In December 2009, plaintiff went to the Lancaster General Hospital emergency room with complaints of a panic attack. R. 303, 407-09. Studies were normal and plaintiff improved during observation. R. 304. She was discharged with a diagnosis of anxiety and chest pain. R. 307.
The medical record reflects additional visits to her primary care physician throughout 2010, few of which were related to her present impairments. In August 2010, plaintiff complained of fatigue, headaches and anxiety, and the doctor noted her chronic problems of depressive disorder and anxiety. R. 734. In a subsequent visit of September 28, 2010, plaintiff reported improvement in her anxiety. R. 731. Although she continued to suffer anxious and fearful thoughts, she stated that "it is not difficult at all to meet home, work, or social obligations."
On October 29, 2010, after experiencing a week of low back pain, plaintiff first met with John A. Gastaldo, M.D. of Neuroscience & Spine Associates. R. 509. Dr. Gastaldo's notes echoed plaintiff's reports that she had had three prior lumbar laminectomies, the last of which was more than ten years ago, and had been pain free until the previous week.
The record is again relatively sparse until April 8, 2011, when plaintiff returned to Neuroscience & Spine Associates with new complaints of low back pain that had started two months earlier. R. 505, 331. Plaintiff indicated to Sandra L. Moffett, P.A.-C that she never attended the prescribed physical therapy and she continued to have pain in her low back, radiating toward the right lower extremity. R. 505. She explained that she treated with Aleve, ibuprofen and Tylenol, especially when babysitting small children in her home. R. 505. Examination was relatively unremarkable with good range of motion, normal gait, full motor strength and mildly diminished sensation. R. 505. On P.A. Moffett's referral, plaintiff underwent an MRI of her lumbar spine. R. 331. The results revealed mild stable dextroscoliotic curvature of the lumbar spine and slight progression of degenerative changes at the L4 through S1. R. 418.
Upon referral from her doctor, plaintiff attended an initial evaluation at Lancaster General Physical Medicine & Rehabilitation on April 12, 2011, where she again reported the onset date of her pain as two months prior. R. 291. Although therapy was prescribed three times a week for twelve visits in order to reduce her pain and increase her functionality, r. 290, 503, plaintiff attended only five therapy sessions and then skipped her next three appointments. R. 280, 285-90. On May 6, 2011, plaintiff indicated that that she wanted to remain "on hold" until her next doctor's appointment because she felt the exercises were only giving her temporary relief. R. 280.
Plaintiff had a second MRI on April 20, 2011, which showed degenerative and postoperative changes on the right at L4-L5 where there was some right lateral recess stenosis. R. 315. During her May 9, 2011 follow up with Dr. Gastaldo, her neurological examination was entirely normal, but her sensory examination showed mildly diminished sensation in the lateral aspect of her right leg. R. 499. In addition, she had mild tenderness to palpation to the right of the midline in the lumbar area. R. 499. Otherwise, motor examination showed no abnormalities, she had normal muscle tone with no atrophy, strength was 5/5 bilaterally in both upper in lower extremities and her reflexes were 2/2. R. 500. Plaintiff's gait was sturdy and symmetric. R. 500. Dr. Gastaldo remarked that the MRI showed some degenerative disc disease at the L4-L5 and L5-S1 levels with a small disc herniation at the L5-S1 level, but no neural foraminal stenosis. R. 500.
Plaintiff underwent several radiographic tests on May 23, 2011. R. 336. An X-ray of her lumbar spine revealed severe discogenic disease and degenerative spondylitic change at L4-L5 and L5-S1, mild anterolisthesis of L4 with respect to L5 and retrolisthesis of L5 with respect to S1 and mild scoliosis, but no significant change from the previous April 2011 examination. R. 337. Similarly, a bone scan showed discogenic disease and degenerative spondylitic change in the L4-L5 and L5-S1 interspaces, degenerative or arthritic change in the left L4-L5 facet and mild degenerative changes in the lower thoracic spine at T9-T10. R. 340.
Two days later, plaintiff underwent a lumbar myelogram which showed mild to moderate canal narrowing at L4-L5 with significant disc space narrowing at L4-L5 and L5-S1. R. 342. A CT myelogram of the lumbar spine revealed degenerative changes, mainly at L4-L5 and L5-S1 with postoperative changes, scar tissue to the right of the midline at L4-L5 and a small central herniation at L5-S1. R. 344. Based on these studies, Dr. Gastaldo opined that plaintiff had "at best, mild stenosis, which may be composed of scar tissue at L4-L5 on the right." R. 490. He noted subtle changes at L5-S1 as well, but no obvious root compromise.
On referral from Dr. Gastaldo, plaintiff went to the Pain Center where she was treated by Cora Bilger, P.A.-C. and Dr. Monteforte. Plaintiff described sharp, stabbing, shooting pain in her right buttocks and right posterior thigh to the knee with chronic numbness and tingling in her lateral calf. R. 487. She rated her pain as a four out of ten and said that, occasionally, the pain makes her feel depressed.
Over the following few months, plaintiff had only sporadic visits to her primary care doctor for isolated problems including insomnia, a persistent cough and congestion, mammogram prescriptions and a recheck of her anxiety. R. 345, 716, 719, 722. At her October 11, 2011 visit, plaintiff reported that her anxiety had improved and it was not at all difficult to meet home, work or social obligations. R. 716. Although she had continued anxiety symptoms, the doctor opined that her depression was stable. R. 716-17. At her February 7, 2012 appointment, she had no gait disturbance or psychiatric symptoms. R. 713.
Plaintiff's next documented complaints of low back pain occurred on March 5, 2012 when she returned to her primary care doctor describing a brand new onset of sharp and stabbing pain radiating into her right thigh. R. 578. Dr. Quinn remarked that she had posterior tenderness, paravertebral muscle spams, right lumbosacral tenderness and a muscle spasm in her lumbar spine. R. 579. Straight leg raises were positive.
Plaintiff then returned to Dr. Gastaldo on March 12, 2012, who determined that despite normal reflexes and motor sensory exam in her right lower extremity, the severity of her symptoms warranted an MRI and an increase in pain medication. R. 484. The subsequent MRI revealed some degenerative changes in the spine itself, but no clear root compromise. R. 482. It also showed a large right cystic mass in the pelvis.
On March 21, 2012, plaintiff's pelvic ultrasound showed a large thin-walled ovarian cyst on the right, which the doctor believed to be the likely cause of her right leg pain. R. 351. The treating gynecologist recommended surgical removal of the cyst and plaintiff was transferred to the Women and Babies Hospital for a hysterectomy. R. 669-70. In her post-operative visit with her family doctor, she continued to complain of persistent lower back pain. R. 575. As of her April 25, 2012 follow-up visit with Dr. Gastaldo, however, plaintiff stated that her back pain was totally resolved and the doctor felt no return visit was necessary. R. 481.
At the end of May 2012, plaintiff first met with James P. Argires, M.D. regarding her continued right low back and leg pain. R. 563. Plaintiff's neurological examination was unremarkable as evidenced by negative straight leg raises, no gross motor or sensory reflex impairment, normal ambulation and no gross motor or sensory deficit.
In a July 10, 2012 return visit with Dr. Argires, plaintiff complained of a continued paresthetic feeling in her right leg improved somewhat with Lyrica. R. 689. The doctor increased her dosage and directed her to increase her physical activities.
On August 9, 2012, state agency consultant Jay Shaw, M.D. conducted a review of plaintiff's medical records and completed a residual functional capacity analysis in connection with plaintiff's recently-filed application for benefits. R. 87-91. He opined that plaintiff could occasionally lift/carry up to twenty pounds in an eight-hour workday, frequently lift/carry up to ten pounds in an eight-hour workday, stand/walk and sit about six hours in an eight-hour workday and had no push/pull or postural limitations. R. 87. He reasoned that although plaintiff had back impairments, he believed her complaints of pain to be out of proportion to the objective findings on imaging studies and on examination. R. 87-88.
On the same date, state agency consultant Alex Siegel, Ph.D conducted a mental residual functional capacity assessment based on plaintiff's medical records. Dr. Siegel opined that plaintiff had moderate limitations on her ability to understand and remember detailed instructions, but otherwise had no limitations on her sustained concentration and persistence. R. 88-89. He partially credited her complaints stemming from her anxiety disorder and depression and believed her to be limited to work involving one-to-two step tasks and simple, routine, repetitive work in a stable environment. R. 89. Based on her activities of daily living, however, he declined to fully credit her claimed mental limitations. R. 89-90.
Plaintiff met with Dr. Argires again on January 7, 2013, at which time he reviewed her recent EMG, which revealed a severe polymotor, sensory neuropathy superimposed upon rather radicular changes from the past surgical procedures. R. 1494. He believed that she was stable on her medications of Soma and Lyrica, as well as BuSpar for depression, and opined that no further surgery was necessary.
On that same day, Dr. Argiries also completed a spinal impairment questionnaire for purposes of plaintiff's application for social security benefits. R. 813. He diagnosed her with multi-level degenerative disc disease, polymotor sensory neuropathy and progressive spinal stenosis with a guarded prognosis.
In a January 9, 2013 visit with her primary doctor, plaintiff re-raised complaints of anxiety and depression. R. 924. She stated that she faced social isolation, aggravated by the winter season and chronic pain from her back.
Plaintiff returned to Dr. Argires on March 19, 2013 with bilateral leg discomfort and pain and some difficulty ambulating. R. 1493. On examination, straight leg raises were negative and she had no gross motor or sensory changes, but reflexes were markedly diminished and she had trouble ambulating for any distance.
The record is devoid of treatment notes until plaintiff's return to Dr. Argires on September 4, 2013. He believed that her condition had worsened, noting that she had difficulty walking for any distances, consistently used a walker, ambulated in a semiflexed position with a flattened lumbar lordotic curve and required assistance in rising from a chair. R. 887. On October 8, 2014, plaintiff met with Dr. Agires's son, surgeon Dr. Perry Agires. R. 873. He fitted her for a lumbosacral brace to help stabilize her lumbar spine. R. 875. Plaintiff also had another MRI which revealed severe degenerative signal changes at L4-5 and L5-S1. R. 876. At L5-S1, she had central canal stenosis secondary to a moderately large midline herniated disk at L4-5 with wide laminectomy defects. R. 876. In addition, she had significant right-sided L4-5 facet arthropathy causing neural foraminal narrowing.
On November 18, 2013, plaintiff underwent surgery for bilateral L4-5, L5-S1 decompressions, posterior lumber interbody fusion L4-5, L5-S1, posterolateral fusion L4 to S1 and transpedicular internal fixation L4 to S1. R. 936. An x-ray taken on December 17, 2013 revealed that the pedicle screws were in proper position and that she had normal lumbar alignment and disk spaces. R. 943. In her post-operative visit, Dr. Agires commented that plaintiff was "[d]oing extremely well," her wound was healing nicely, her progress was excellent, she was continuing with only mild medications and she had only some burning discomfort in the left lateral thigh area with a paresthetic feeling in her left foot. R. 944.
At the administrative hearing, plaintiff testified that she was then fifty years old and had obtained a GED. R. 32. Her past relevant work included positions as a production line worker, a commercial cleaner, a cable assembler, a paper collater and packer, a security guard, a solderer, a vacuum sealer of meat products, a line tender in a paint line for cast iron doors and a manufacturer at a wire mesh company. R. 32-43. She explained that all of those jobs involved extensive standing and lifting, making the work difficult for her.
During the hearing, although plaintiff sat in a wheelchair due to her recent surgery, she explained that she had been seeing progress. R. 45. Just prior to the hearing, however, her leg gave out due to nerve damage and she had not yet had a chance to speak to her doctor. R. 44-45. She stated that her leg had just decided to "stop working" about a dozen or so times since her surgery. R. 44, 55-56. As a result of her impairment, she usually would not go to the store alone and could only walk for a block or so before she needed to sit down. R. 56-57.
As to her lifting and carrying abilities, plaintiff indicated that doctors never really gave her any restriction, so she typically would lift or carry whatever she needed for her job at the time. R. 58. For the two to three years prior to the surgery, she felt that she could lift or carry a maximum of five pounds. R. 60.
As to her personal life, plaintiff indicated that she has five grandchildren ranging from three to ten years old, whom she can no longer babysit because of her inability to lift or run after them. R. 49. She had performed full-time babysitting for three of her grandchildren from 2008 into 2009 and was being paid by her daughter-in-law. R. 52. She stopped when her daughter-in-law decided to find a babysitter closer to the area in which she worked. R. 53. The last time she had driven was at the beginning of November 2013. R. 50.
With respect to her mental health issues, plaintiff explained that she has had panic attacks for the past ten years. R. 53. Although she takes medication for this condition, she still has symptoms at times.
Finally, plaintiff described her medications. First, she stated that she has a prescription for Oxycodone pain medication, which she takes only as needed and which makes her dizzy. R. 60-61. She also takes Carisoprodol, a muscle relaxer, just before she goes to bed. R. 61-62. Finally, she takes Lyrica, which she described as "awesome" because it eliminates all the tingling in her legs relating to the nerve damage. R. 62.
Thereafter, vocational expert (VE) Anthony Caporelli testified regarding plaintiff's ability to perform substantial gainful activity. The ALJ asked the VE to assume a hypothetical individual of under forty-five years old; with a GED; capable of lifting and carrying twenty pounds occasionally and ten pound frequently; standing and walking up to six hours; sitting up to six hours but requiring the ability to alternate positions at will; limited to no pushing or pulling with any extremity; limited to only occasionally bending, stooping, kneeling, crouching, crawling and stairs; required to avoid hazards such as unprotected heights and non-stationary machinery; limited to exercising only simple work-related judgments; requires no more than occasional changes to the routine work setting; and requires simple, routine and repetitive work in a stable environment. R. 70. The VE opined that such a hypothetical individual would not be capable of performing any of plaintiff's past relevant work.
On questioning by plaintiff's attorney, the VE stated that if the hypothetical individual needed a five to ten minute break every hour, no jobs would be available. R. 78. If, however, the individual just needed a walker or wheelchair for ambulation, he or she could still perform all of the identified occupations. R. 79.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot engage in substantial gainful activity because of a 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 at least twelve months. 42 U.S.C. § 423(d)(1)(A);
Judicial review of the Commissioner's decision under this sequential analysis is limited to determining whether "substantial evidence" supports the decision.
The reviewing court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Secretary's decision, or it may remand the matter to the Secretary for a rehearing.
Plaintiff alleges that substantial evidence does not support the ALJ's decision as a result of three broad errors. First, she asserts that the ALJ improperly discredited the January 7, 2013 medical opinion of treating neurosurgeon James Argires, M.D. Second, she claims that the ALJ failed to properly evaluate her subjective complaints. Finally, she contends that because the ALJ based his step five finding on a deficient hypothetical to the vocational expert, the decision is not supported by substantial evidence. Upon consideration of each individual argument, I will deny plaintiff's request for review and affirm the ALJ's decision.
Plaintiff's first argument challenges the weight the ALJ accorded to Dr. Argires's January 7, 2013 functional capacity assessment. As noted above, Dr. Argiries completed a spinal impairment questionnaire diagnosing plaintiff with multi-level degenerative disc disease, polymotor sensory neuropathy and progressive spinal stenosis. R. 813. He gave her a guarded prognosis, noting that she had limited range of motion in her lumbar region, lumbar tenderness, muscle spasm, minimal sensory loss, diminished reflexes, muscle weakness, swelling, trigger points and positive straight leg raises. R. 813-814. He opined that she could sit, stand and walk less than one hour in an eight hour work day, that she should not sit continuously and that she would have to get up and move around every thirty minutes. R. 816. He further found that she could only occasionally lift objects under five pounds and occasionally carry objects under ten pounds. R. 816-17. Ultimately, he concluded that she was "disabled from any and all employment due to progressive polymotor sensory neuropathy." R. 819.
The ALJ considered this assessment in the context of the other evidence of record and accorded "limited weight" to Dr. Argires's conclusion that plaintiff was disabled. In doing so, he reasoned that "Dr. Argires' opinion that the claimant is disabled from any and all employment is not supported by the record as a whole and is not consistent with Dr. Gastaldo's statement that the claimant has 5/5 strength bilaterally in the upper and lower extremities." R. 24. In addition, he noted that "said opinion concerns an issue that is reserved to the Commissioner."
Notwithstanding plaintiff's multiple contrary arguments, I find no error in the ALJ's decision to accord limited weight to Dr. Argires's opinion. Under applicable regulations and controlling case law, "opinions of a claimant's treating physician are entitled to substantial and at times even controlling weight."
In this case, the ALJ offered multiple sound reasons for his refusal to accord controlling weight to Dr. Agires's highly-restrictive January 7, 2013 assessment. First, the ALJ properly recognized that Dr. Argires's statement that plaintiff was "disabled from any and all employment" did not carry any controlling weight. R. 819. It is well settled that although a treating physician's medical opinions are to be accorded deference, the same does not hold true for a treating physician's opinion as to disability: "[t]he ALJ—not treating or examining physicians or State agency consultants—must make the ultimate disability and [residual functional capacity] determinations."
Second, the checklist nature Dr. Argire's assessment warranted the lesser deference accorded by the ALJ. The Court of Appeals has observed that "[f]orm reports in which a physician's obligation is only to check a box or fill in a blank"—as is the case here—"are weak evidence at best."
Third, the ALJ recognized inherent contradictions between Dr. Argires's assessment and his treatment notes. Although "[t]reating physicians' reports should be accorded great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time,"
In this matter, Dr. Argires's assessment stands in stark contrast with his longitudinal treatment notes recorded contemporaneously with his examinations. For example, during plaintiff's first visit in May 2012, neurological examination was unremarkable with negative straight leg raising and no gross motor or sensory reflex impairment. R. 563. In June 2012, although Dr. Argires commented that reflexes were totally absent in plaintiff's lower extremities—a symptom not identified in his assessment—he continued to find negative straight leg raising and no motor or sensory changes. R. 569. Likewise, in July 2012, plaintiff had no motor or sensory deficit. R. 689. Dr. Argires commented that plaintiff used a cane to walk on uneven surfaces, contrary to his assessment opinion that she could barely walk at all.
Fourth, as noted by the ALJ, other medical evidence of record also undermined Dr. Argires's assessment. Prior to seeing Dr. Agrires but subsequent to her alleged date of disability in 2007, plaintiff treated with Dr. Gastaldo for her back pain. In her initial October 2010 visit with Dr. Gastaldo, plaintiff's gait, station and muscle strength were normal in both her upper and lower extremities. R. 509. Further, her neurological examination was entirely normal and her reflexes were symmentric.
Finally, the ALJ properly found that the residual functional capacity assessment of Dr. Jay Shaw undermined Dr. Argires's restrictive report. The Court of Appeals has held that although "the opinions of a doctor who has never examined a patient have less probative force as a general matter, than they would have had if the doctor had treated or examined him,"
In this case, Dr. Shaw reviewed the record to date and opined that although plaintiff had a back impairment she was far less limited than described by Dr. Argires in his January 2013 assessment. He believed plaintiff actually had the capability of occasionally lifting/carrying up to twenty pounds in an eight-hour workday, frequently lifting/carrying up to ten pounds in an eight-hour workday and standing, walking and sitting about six hours in an eight-hour workday and had no push/pull or postural limitations. R. 87-88. By way of explanation, Dr. Shaw stated:
R. 87. Although the ALJ gave this opinion significant weight as consistent with Dr. Gastaldo's statements and the other evidence of record, he did not simply rubberstamp this assessment. Rather, he found that, based on the medical record and Dr. Argires's treatment notes, plaintiff's impairment imposed even greater limitations including the need for a sit-stand option, a preclusion on pushing and pulling with any extremity and a limitation to only occasional bending, stooping, crawling, kneeling, crouching and climbing stairs. R. 21.
In an effort to challenge the ALJ's analysis of Dr. Argires's assessment, Plaintiff now suggests that the ALJ disregarded other record evidence that bolstered Dr. Argires's opinion. She cites, for example, to Dr. Gastaldo's May 9, 2011 notation that lumbar flexion and extension caused discomfort, that plaintiff had diminished sensation in the lateral aspect of her right leg and tenderness to palpation in the midline of the lumbar area and that review of systems was positive for fatigue. R. 498-99. In addition, plaintiff references the March 9, 2012 emergency room doctor's report that plaintiff appeared to be uncomfortable, had tenderness in her right lumbar paraspinal muscles and had chronic degenerative disc disease with a central disc protrusion. R. 320-21. She further argues that the ALJ failed to acknowledge that Dr. Argires's examination of plaintiff performed on May 31, 2012 in connection with electrodiagnostic testing revealed diminished strength 3+/5 plantar flexion, 4/5 knee extension, diminished sensation in plaintiff's lateral calf and the plantar surface of her right foot and trace reflexes at the ankle. R. 566. In addition, the ALJ did not mention Dr. Quinn's documentation of moderate pain with motion in plaintiff's lumbar spine, r. 573, positive straight leg raising test, r. 579, right lumbosacral tenderness, r. 579, 918, and moderately reduced range of motion. R. 693.
An ALJ, however, need not explicitly evaluate all evidence a claimant presents, "as long as the ALJ articulates at some minimum level her analysis of a particular line of evidence."
Ultimately, the ALJ did not wholly reject Dr. Argires's assessment of plaintiff's work-abilities, but rather rejected the degree of Dr. Argires's imposed limitations, giving the related limitations weight only to the extent that they found support in the other medical evidence of record. In light of the record showing plaintiff's less than disabling impairments, the ALJ's refusal to give the assessment controlling weight stands well-supported by substantial evidence. Nothing in the Social Security regulations requires that the ALJ favor a treating physician's rote functional capacity assessment unaccompanied by any detailed explanation over the other evidence in the record, including the treating physician's own treatment notes, reports from other medical care providers and an evaluation by a state agency doctor. Accordingly, I affirm the final decision of the Commissioner of Social Security on this point.
Plaintiff's second argument concerns the validity of the ALJ's credibility assessment. Upon review of the record, the ALJ determined that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." R. 22. Plaintiff now objects to this credibility determination, arguing simply as follows:
Pl.'s Br. Supp. Request for Review, ECF No. 8, at p. 11.
Plaintiff's cursory argument offers little substance on which I can review her challenge. Nonetheless, considering the applicable jurisprudence and the record in its entirety, I find that the ALJ's credibility determination bears the support of substantial evidence. It is well established that an ALJ is required to "give serious consideration to a claimant's subjective complaints of pain [or other symptoms], even where those complaints are not supported by objective evidence."
Under the regulations, the kinds of evidence that the ALJ must consider when assessing the credibility of an individual's statements include: the individual's daily activity; location, duration, frequency and intensity of the individual's symptoms; factors precipitating and aggravating the symptoms; the type, dosage, effectiveness and side effects of medication taken to alleviate the symptoms; treatment, other than medication, received for relief of the symptoms; any non-treatment measures the individual uses to relieve pain or symptoms; and other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Moreover, the ALJ should account for the claimant's statements, appearance and demeanor; medical signs and laboratory findings; and physicians' opinions regarding the credibility and severity of plaintiff's subjective complaints.
Pursuant to these principles, the ALJ's credibility assessment survives a substantial evidence review. As a primary matter, the ALJ did not entirely discredit plaintiff's testimony. Rather, he accepted that plaintiff suffered symptoms including back pain that spreads to her buttock, knee and ankle; pain that affects her ability to sleep, lift, squat, bend, stand, reach, walk, sit, kneel and climb stairs; lower extremity limitations requiring the use of an assistive walking device; and tiredness and dizziness resulting from her medications. R. 22. Indeed, the ALJ included many of these limitations in his residual functional capacity assessment. Nonetheless, to the extent plaintiff claimed that these symptoms resulted in her complete inability to perform any substantial gainful activity, the ALJ found that the "intensity, persistence and limiting effects of these symptoms" were not entirely credible. R. 22.
To the extent the ALJ discredited the severity of plaintiff's pain and fatigue complaints, his discussion properly relied on factors set forth in the regulations. First, it is well established that the ALJ may consider the extent of daily activities in determining the credibility of a claimant's testimony.
Second, "the ALJ is expressly empowered to draw negative inferences, even concerning the claimant's statements about his subjective pain, from a lack of consistency between the claimant's various statements or between his statements and the medical evidence."
Third, given that plaintiff's complaints of more severe back pain did not begin until September 2013, shortly after which she underwent surgery, the ALJ had no basis to conclude that plaintiff had become disabled prior to her date last insured of September 30, 2012 or had limitations from pain which would be expected to last for more than twelve months, as required by the Social Security regulations. Indeed, the ALJ commented that "[w]hile the claimant may have been laid up after the fourth surgery, her post surgical examination was excellent . . . and there is no reason to think that the claimant will not be back to light duty soon." R. 23. Dr. Argires specifically commented that plaintiff was "[d]oing extremely well" and that she needed only mild pain medications. R. 944. At her hearing, plaintiff confirmed this report and testified that she had been getting better until her leg gave out a few days earlier. R. 45. The ALJ appropriately relied on this evidence to find that nothing in the medical record demonstrated that any disabling pain would continue for the requisite period of time.
Finally, to the extent plaintiff challenges the ALJ's failure to credit her complaints that her medications made her tired and dizzy, I find no merit to this allegation. The sole notations in the record regarding fatigue and dizziness are: (1) plaintiff's application for benefits where she stated that she took Lyrica and Citalopram, which caused tiredness and dizziness, r. 229, and (2) Dr. Argires's January 2013 statement that plaintiff had "fatigability." R. 815. Otherwise, the record is devoid of any mention of fatigue or dizziness resulting from her medications. Indeed, although she had been taking these medicines for an extended period of time in the record, plaintiff does not identify, and I cannot find, any mention of these complaints of dizziness or fatigue. Moreover, at the administrative hearing, plaintiff indicated that although the Oxycodone makes her dizzy, she only takes it as needed; the Carisoprodol makes her dizzy, but she takes that at night before she goes to sleep; and the Lyrica is "awesome" with no reported side effects. R. 61-62. Given this evidentiary record, the ALJ's decision to not credit plaintiff's singular complaint of dizziness and fatigue is well supported by substantial evidence.
"[I]t is well within the discretion of the Secretary to evaluate the credibility of a plaintiff's testimony and to render an independent judgment in light of the medical findings and related evidence regarding the true extent of such disability."
Plaintiff's final challenge to the ALJ's decision concerns the hypothetical question posed to the vocational expert during the administrative hearing. The ALJ explicitly found, at step three of the sequential analysis, that plaintiff has moderate difficulties in social functioning, r. 21, which according to the Listings, deals with a claimant's "capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00C(2). Yet, when posing a hypothetical to the vocational expert, the ALJ did not include any comparable limitation.
Although this issue causes me some hesitation, I nonetheless affirm the ALJ's decision. In order for a vocational expert's testimony to constitute substantial evidence, it must reflect all of the claimant's impairments that are supported by the record.
In some cases, an ALJ's failure to include in the hypothetical a limitation identified at a previous step of the sequential analysis has been deemed cause for remand. For example, in the analogous case of
Similarly, in
By contrast, many other cases from within the Third Circuit have recognized that remand may be unnecessary where, despite an ALJ's imposition of limitations in the third step of the sequential analysis that he or she does not subsequently include in an RFC assessment or hypothetical, the ALJ nonetheless offers sufficient and substantiated reasons for why the limitations should not be included. For example, in
I find that this matter falls within latter category of cases because I am able to discern from the record the ALJ's rationale for not including any social limitations in the RFC or hypothetical to the VE. At step three, the ALJ stated that plaintiff had moderate difficulties in social functioning. R. 21. He then clarified that "[a]lthough [plaintiff] testified that she has panic attacks, the [plaintiff] stated that she shops in stores. . . . She also stated that she spends time with others."
Undoubtedly, the ALJ could have offered a more explicit justification for why he reached seemingly inconsistent conclusions at steps three and five of the analysis. Nevertheless, and quite unlike the
While plaintiff in this case certainly has impairments that impact her abilities, I find that the ALJ's disability decision is well supported by substantial evidence of record. Therefore, I will deny plaintiff's request for review and affirm the decision of the Commissioner of Social Security.
An appropriate Order follows.
