JOSEPH F. SAPORITO, JR., Magistrate Judge.
This is an action brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the claim of Plaintiff Michael Scott Tracey ("Mr. Tracey") for disability insurance benefits and supplemental security income under the Social Security Act.
This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition, pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g). For the reasons expressed herein, the Court recommends that the Commissioner's final decision be
Plaintiff Michael Tracey was born on November 3, 1968, and is an adult individual who resided within the Middle District of Pennsylvania at all times relevant to this action. (Tr. 173, 176). At the time of application filing, Mr. Tracey was married to Jeanette Tracey. (Id. at 176). Mr. Tracey completed the twelfth grade. (Id. at 178). His past relevant work experience includes work as a store laborer, construction worker, industrial truck operator, and injection molding machine operator. (Id. at 20).
Mr. Tracey filed for disability insurance benefits and supplemental security income on August 19, 2013. (Tr. 11). In his disability report, he listed the following five physical or mental conditions as limiting his ability to work: (1) tone deafness in both ears; (2) carpal tunnel syndrome; (3) anger and anxiety; (4) burning sensation in his right foot; and, (5) visual impairment. (Doc. 8-6 at 177). Mr. Tracey alleged his disability began August 26, 2012. (Tr. 11).
Mr. Tracey's claim was initially denied on March 3, 2014. (Id.). ALJ Daniel Myers held a hearing on this claim on August 31, 2015, at which Mr. Tracey appeared and testified. (Id.).
Mr. Tracey testified that he lives with his wife, and that she is employed. (Id. at 34). When he was a child, he injured his right wrist while breaking a window. (Id. at 37). He testified he cannot feel his fingers on his right hand and cannot pick up small objects, hold large objects, or move his right wrist. (Id.).
Mr. Tracey provided medical evidence that he appeared at Myerstown Family Practice on October 1, 2012, complaining of pain shooting from his right wrist to his elbow. (Id. at 261). He requested a referral to an orthopedist. (Id.). Bruce Yeamans, M.D., of Myerstown Family Practice, signed two employability forms opining that Mr. Tracey is temporarily disabled: one on February 1, 2013 (opining the disability would last until September 1, 2013) and one on August 14, 2013 (opining the disability would last until February 14, 2014). (Id. at 274-77). A third employability form opining temporary disability was signed by Richard Emler, a physician assistant at Myerstown Family Practice. (Id. at 279). This form was not dated by PA Emler, but was dated October 1, 2012, by Mr. Tracey. (Id. at 278-79). It contained the opinion that Mr. Tracey's temporary disability would last less than twelve months, from October 1, 2012, to January 1, 2013. (Id. at 279).
On January 22, 2013, Mr. Tracey returned to Myerstown Family Practice. (Id. at 263). Dr. Yeamans noted that Mr. Tracey will need a nerve graft in his right wrist. (Id.). He also assessed Mr. Tracey's anxiety. Dr. Yeamans noted Paxil worked well for Mr. Tracey in the past, and ordered Mr. Tracey to continue with Paxil. (Id. at 264-65). On another follow-up with Myerstown Family Practice on February 20, 2013, Dr. Yeamans again noted the need for a nerve graft and ordered Mr. Tracey to continue with Paxil. (Id. at 266-67). At this follow-up appointment, Mr. Tracey reported to Dr. Yeamans that he believes the Paxil helps him. (Id. at 266). On August 14, 2013, Mr. Tracey returned to Myerstown Family Practice. (Id. at 269). He reported that he had run out of Paxil and was easily irritated since running out. (Id.). Mr. Tracey was re-prescribed Paxil. (Id.).
Mr. Tracey had the nerve graft completed on his right wrist on March 28, 2013, by a surgeon at Hershey Medical Center. (Id. at 302). At an April 12, 2013, follow-up with Hershey Medical Center, Mr. Tracey reported he was doing well, with mild to moderate pain only in his right upper extremity. (Id. at 292).
On January 2, 2014, Mr. Tracey had surgery to address scaphoid lunate advanced collapse. (Id. at 354-55). The scaphoid lunate advanced collapse resulted in Mr. Tracey continuing to complain of wrist pain after the nerve graft. (Id. at 286). On January 17, 2014, Mr. Tracey was doing well, with moderate residual pain and swelling from the surgery. (Id. at 342). He was also able to demonstrate full composite flexion and extension of his fingers throughout. (Id.).
On January 27, 2014, James Nolan, Ph.D., examined Mr. Tracey at the agency's request. (Id. at 422-24). Dr. Nolan found Mr. Tracey had extreme limitations in his ability to deal with supervisors and his ability to respond to usual work situations and changes in a routine work setting. (Id. at 425-26). He also found Mr. Tracey had marked limitations in his ability to interact with others and his ability to make judgments on complex work-related decisions. (Id.).
A state agency psychologist, Michael Suminski, Ph.D., reviewed Mr. Tracey's file, including Dr. Nolan's opinion. (Id. at 59-61). Dr. Suminski found Mr. Tracey had no more than moderate limitations, could perform simple routine tasks, and had intact concentration, persistence, and pace. (Id.).
Mr. Tracey's medical records were reviewed by state agency physician Michael Brown, D.O., on February 21, 2014. (Id. at 54-56, 70-72). Dr. Brown opined that Mr. Tracey could perform light work with the following exceptions: (1) he can never climb ladders, ropes, or scaffolds; and (2) he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and handle or finger with his right upper extremity. (Id.).
Mr. Tracey reported to Philhaven Mental Health Treatment Center on April 16, 2014, with complaints of anxiety, occasional depression, and anger. (Id. at 434, 439). He was assessed a GAF score of 51. (Id. at 432). At that point, Mr. Tracey's Paxil dose was adjusted, and he was ordered to start Buspar and consider seeing an outpatient therapist. (Id. at 434). At a June 6, 2014, appointment at Philhaven, Mr. Tracey reported that his depression was improving but his anxiety had not changed and he was experiencing more anger. (Id. at 574). Nhien Nguyen, M.D., of Philhaven later provided a letter dated September 28, 2015, stating Mr. Tracey was not capable of working a forty-hour week due to his mental impairments. (Id. at 559, 587).
Mr. Tracey had a wrist fusion surgery on July 8, 2014. (Id. at 443-45). At a two-week follow-up after the surgery, Mr. Tracey reported he was doing well but was placed in a cast. (Id. at 462). Mr. Tracey impermissibly removed his cast soon thereafter, and it was replaced on July 30, 2014, over a fear that Mr. Tracey would be unable to keep weight off his wrist. (Id. at 472-73). At an August 20, 2014, follow-up, Mr. Tracey reported mild residual discomfort but had significantly improved. (Id. at 466). He reported severe tingling and pain in his right small and ring fingers, which the doctor attributed to severe right ulnar neuropathy. (Id.).
In mid-November 2014, Mr. Tracey underwent right cubital release surgery. (Id. at 500). At a two-week follow up with Hershey Medical Center, he was doing well and reported early improvement in sensation in the right ulnar nerve distribution. (Id.). Mr. Tracey also reported a flare-up of his olecranon bursitis. (Id.). On January 15, 2015, Mr. Tracey underwent surgery to remove the olecranon. (Id. at 513). At a two-week follow up, Mr. Tracey was doing well and had regained motion in his elbow. (Id. at 524).
On October 19, 2015, the ALJ issued an opinion finding Mr. Tracey was not disabled under the Social Security Act. (Id. at 11-22). The ALJ followed the five-step analysis for disability claims under the Social Security Act. At Step One, the ALJ determined that Mr. Tracey had not engaged in substantial gainful activity since the time of his alleged onset of disability. (Id. at 13). At Step Two, the ALJ found Mr. Tracey had the following six severe impairments: (1) carpal tunnel syndrome; (2) chronic right olecranon bursitis; (3) depression; (4) borderline personality disorder; (5) generalized anxiety disorder; and, (6) alcohol dependence. (Id.). At Step Three, he determined that Mr. Tracey's severe impairments did not meet or equal any of the listed impairments. (Id. at 14).
Between Step 3 and Step 4, the ALJ found Mr. Tracey possessed the residual functional capacity ("RFC") to perform light work, with the following exceptions or specifications:
(Id. at 15-16). At Step Four, the ALJ found that Mr. Tracey was not capable of performing any past relevant work. (Id. at 20). At Step Five, the ALJ made a finding that Mr. Tracey was not disabled because he could perform the following three occupations: (1) conveyor-line bakery worker; (2) egg candler; and, (3) carting machine operator. (Id. at 21).
The agency Appeals Council denied Mr. Tracey's request for review on January 19, 2017. (Id. at 1). On March 17, 2017, Mr. Tracey filed a complaint with this Court seeking review. (Doc. 1). The Commissioner filed her answer on May 22, 2017. (Doc. 7). This matter has been fully briefed by the parties and is ripe for decision. (Doc. 11; Doc. 12; Doc. 13).
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether the plaintiff is disabled, but whether the Commissioner's finding that the plaintiff 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. . . .").
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §404.1520(a). 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).
Between Steps Three and Four, the ALJ must also assess a claimant's 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). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at Step Two of his or her analysis. 20 C.F.R. §404.1545(a)(2).
At Steps One through Four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5); 20 C.F.R. §404.1512
At Step Five, the burden shifts to the Commissioner to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience, and RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.
Mr. Tracey advances four arguments on appeal. They are listed here verbatim:
(Doc. 11 at 3).
The Commissioner, and not the claimant, bears the burden of proving that a claimant can engage in other work that exists in the national economy. 20 C.F.R. §404.1512(f) (effective Apr. 20, 2015 to Mar. 26, 2017). To meet this burden, ALJs rely primarily on the Dictionary of Occupational Titles ("DOT") (including its companion publication the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles). SSR 00-4p, 2000 WL 1898704 at *2. ALJs also often rely on testimony by VEs retained by the Social Security Administration. One of the principal contested issues in this setting relates to the claimant's residual capacity for work in the national economy. Id.
There are two ways a claimant can frame a challenge to an ALJ's reliance on vocational testimony at step five. Rutherford v. Barnhart, 339 F.3d 546, 554 n. 8 (3d Cir. 2005). First, the claimant can argue that the testimony cannot be relied upon because the ALJ failed to convey limitations to the VE that were properly identified in the RFC assessment. Id. Second, the claimant can argue that the VE's testimony cannot be relied upon because the ALJ failed to recognize credibly established limitations during the RFC assessment and thus did not convey those limitations to the VE. Id.
In either scenario, as an evidentiary matter, the ALJ's error precludes reliance on the VE's response to the faulty hypothetical question. In this regard, the controlling legal standards have been defined. As the United States Court of Appeals for the Third Circuit has observed:
Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
Mr. Tracey argues DOT definitions of the jobs the ALJ found him capable of doing are incongruent with the RFC limitation that he can only occasionally use his upper right extremity. (Doc. 11 at 4-8). As noted above, the ALJ found Mr. Tracey was capable of performing the jobs of conveyor line bakery worker, egg candler, and carding machine operator. (Tr. 21).
The job of conveyor line bakery worker is defined in the DOT as follows:
524.687-022 Bakery worker, conveyor line, DOT #524.687-022 (emphasis added).
As to the job of conveyor line bakery worker, Mr. Tracey asserts that, according to the definition, the job necessitates "copious amounts of fingering and handling . . . require[ing] both gross and fine manipulation with [his] right hand[,] simply making him unemployable as a conveyor line bakery worker" (Doc. 11 at 6). However, not every element of the definition of conveyor line bakery worker is a necessary element.
The definition begins with the qualifier, "Performs
Assuming, arguendo, that Mr. Tracey's argument on this issue did not fail with the conveyor line bakery worker job, we turn to the other two jobs outlined by the ALJ.
The job of egg candler is defined in the DOT as follows:
529.687-074 Egg candler, DOT 529.687-074.
The job of carding machine operator is defined in the DOT as follows:
681.685-030 Carding-machine operator, DOT #681.685-030.
As to these positions, Mr. Tracey is correct that more than occasional use of his upper right extremity would be required, according to the DOT definitions. In fact, the ALJ and VE conversed back and forth on this fact at the hearing:
(Tr. 43-44).
The Third Circuit has provided the following guidance on this issue:
Burns v. Barnhart, 312 F.3d 113, 126 (3d Cir. 2002) (internal citations omitted). Indeed, Social Security Ruling 00-4p provides, in pertinent part:
SSR 00-4p, 2000 WL 1898704 at *4.
Turning to the ALJ's decision, no explanation of how he "resolved the conflict" is offered. (Tr. 21). Instead, the ALJ appears to suggest that Mr. Tracey is capable of performing the jobs as they are defined in the DOT:
Id. (emphasis added).
The ALJ did not follow the requirement of SSR 00-4p that any inconsistency between the DOT definitions and a VE's testimony be reconciled in the decision or determination. Had the Commissioner not met her burden at Step Five by proving Mr. Tracey could perform the functions of a Conveyor Line Bakery Worker, the error would not have been harmless and Mr. Tracey would have prevailed on this issue.
Mr. Tracey argues that the ALJ erred by not affording controlling weight to the opinions of Dr. Yeamans, PA Emler (a physician assistant), and Dr. Nguyen as his treating sources. (Doc. 11 at 8-10). Specifically, Mr. Tracey asserts the ALJ erred in substituting his judgment of Mr. Tracey's RFC contrary to the opinion of Dr. Yeamans and PA Emler that he was "temporarily disabled," and the opinion of Dr. Nguyen that Mr. Tracey was unable to sustain full-time employment. (Doc. 11 at 9-10).
There are two categories of medical source opinions: "acceptable medical sources" and "other sources." 20 C.F.R. §§ 404.1513, 416.913. Only an acceptable medical source can qualify as a "treating source." 20 C.F.R. § 404.1527(a)(2). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment[s], including [] symptoms, diagnosis and prognosis, what [the claimant] can still do despite [the] impairment[s], and [] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). A treating source's medical opinion will be afforded controlling weight if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). However, "[o]pinions on some issues . . . are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case." 20 C.F.R. § 404.1527(d). An opinion that the claimant is disabled is explicitly noted in the regulations as an example of such an opinion that is reserved to the commissioner. 20 C.F.R. § 404.1527(d)(1) ("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled.").
Mr. Tracey argues that the ALJ should have afforded controlling weight to the opinions that he was temporarily disabled and not able to hold full-time employment. However, these are opinions on an issue reserved to the Commissioner (whether the claimant is disabled). 20 C.F.R. § 404.1527(d)(1). Therefore, they "are not medical opinions" under the regulations. 20 C.F.R. § 404.1527(d). Finally, because they are not medical opinions, they cannot qualify for controlling weight, which is only possible for "a treating source's medical opinion." 20 C.F.R. § 404.1527(c)(2). Mr. Tracey's argument fails because it is inconsistent with the plain text of the Commissioner's regulations.
Mr. Tracey argues that the ALJ selectively credited parts of the opinion of consultative psychologist, Dr. Nolan, in order to justify the determination that Mr. Tracey is not disabled. (Doc. 11 at 11). The Commissioner's regulations state that medical opinions, regardless of the source are evaluated by six factors: (1) examining relationship; (2) treatment relationship; (3) supportability; (4) consistency; (5) specialization; and, (6) other factors brought to the Commissioner's attention by the claimant. 20 C.F.R. § 404.1527(c).
Because Dr. Nolan was not a treating physician, his opinion did not qualify for controlling weight. 20 C.F.R. § 404.1527(c)(2). Instead, the regulations direct the ALJ to evaluate the opinion using the six factors listed above. 20 C.F.R. § 404.1527(c). Using those factors, the ALJ reasoned that Dr. Nolan's opinion only enjoyed partial weight. (Tr. 19). Specifically, he found several matters opined upon by Dr. Nolan to be "overstated in comparison to the examination findings and limited treatment history." Id. He found that Dr. Nolan's opinion on those matters "relied on the claimant's allegations rather than the clinical findings. . . ." Id. It is squarely within the regulations and province of the ALJ to base the partial credibility weight of an opinion on that opinion's supportability and consistency. Therefore, Mr. Tracey's argument fails here.
In support of his position, Mr. Tracey essentially argues for a reweighing of the evidence. (See Doc. 11 at 13-14). Mr. Tracey merely rehashes some of the medical evidence of record and questions whether it is logically possible for him to not be found disabled. Id. Without a more specific allegation of error on part of the ALJ, we decline to reweigh the evidence and the entire case. See 42 U.S.C. §405(g); Johnson, 529 F.3dat 200.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Mr. Tracey's request for a new administrative determination be DENIED and the Commissioner's final decision denying Mr. Tracy's application for benefits be AFFIRMED as follows:
Mr. Tracey's request for remand or the award of benefits should be DENIED and the Acting Commissioner of Social Security's final decision denying the application for disability insurance benefits under Title II and Title XVI of the Social Security Act should be AFFIRMED;
1. Final Judgment should be issued in favor of the Acting Commissioner of Social Security and against Mr. Tracey; and,
2. The clerk of court should close this case.
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 5, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
