MARTIN C. CARLSON, Magistrate Judge.
This is an action brought under 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying Jasmine Angela Aurand's ("Aurand") application for Disability Insurance Benefits under Title XVI of the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for preparation of the 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.
In this case Aurand advances two claims of error. First, Aurand argues that substantive evidence does not support the ALJ's calculation of her residual functional capacity ("RFC"). (Brief of Plaintiff, Administrative Record Document ("Doc.") 9, at 3-5). Second, Aurand asserts that the ALJ failed "to give proper weight to the testimony of the Plaintiff." (Doc. 9, at 5). Here, the ALJ reviewed the medical opinion of Aurand's treating physicians, the opinion of the state agency medical source, and the consultative mental health examiner and issued a decision denying benefits based on those records. (Transcript from Social Security, Doc. 8 (hereinafter "Tr."), at 1035-53). The ALJ also determined that Aurand retained the residual functional capacity (RFC) to perform all levels of work, but allowed limitations to simple routine tasks with minimal interaction.
Given the deferential standard of review that applies to Social Security Appeals, which calls upon us to simply determine whether substantial evidence supports the ALJ's findings, we conclude that substantial evidence does exist in this case, as to all Aurand's claims justified the ALJ's evaluation of the medical opinion evidence, the findings for Aurand's residual functional capacity, and assessment of credibility of Aurand's statements. Accordingly, for the reasons set forth below, we recommend that the final decision of the Commissioner denying Aurand's application for benefits be affirmed, and that Aurand's request for relief be denied.
Ms. Aurand is an adult individual who was 28 years of age on the alleged disability onset date. (Doc. 9, at 3). She possesses a GED and accreditation as a certified nursing assistant. (Brief of Defendant, Doc. 10, at 2). She completed an online college degree in counseling during the period of alleged disability with a GPA at or above 3.8. (Doc. 10, at 2). She also has sought to continue her education and pursue a master's degree in counseling during this same period of alleged disability. (Id.). Aurand's past relevant work experience includes work as a laborer and as a certified nursing assistant (CNA). (Doc. 9, at 3). This is claim is the third attempt by Ms. Aurand to obtain social security disability benefits; the two prior initial denials are dated August 14, 2007 and September 22, 2006. (Tr. 1038).
On November 23, 2011, Aurand protectively filed a Title XVI application for supplemental security income, alleging disability beginning December 12, 2009. (Tr. 1038) Aurand claims that she is unable to work due to disabling physical conditions and mental health diagnoses. (Id.) Her physical impairments included HIV and Hepatitis C, and her mental health impairments include bipolar disorder, personality disorder, anxiety disorder, and polysubstance abuse. (Doc. 9, at 3). Aurand's claims were denied at the initial level of administrative review on March 27, 2012. (Tr. 1038).
Aurand sought further review, and was granted an opportunity to appear and testify before an Administrative Law Judge (the "ALJ" ) April 3, 2013. (Tr. 1038). The first opinion denying benefits was issued on June 12, 2013. (Id.) Aurand's request for review was denied by the Appeals Council and the first Middle District appeal was filed on November 25, 2014. (Id.) That matter was remanded by this court to the Appeals Council, which in turn remanded this case back to the ALJ with instructions. (Tr. 1039).
A new hearing was held on October 13, 2015 before an ALJ. (Tr. 1038) Aurand was assisted by counsel throughout the proceedings. (Id.) Impartial vocational expert Michele C. Giorgio ("VE Giorgio") also appeared and testified during the proceedings. (Id.) The ALJ denied Aurand's claim in a written decision dated April 19, 2016. (Tr.1035-53). Aurand sought further review from the Appeals Council of the Office of Disability Adjudication and Review, which was denied. This denial makes the ALJ's decision the final decision of the Commissioner denying Aurand's claim and places this matter before this court pursuant to 42 U.S.C. § 405(g).
This appeal followed. On June 2, 2017, Aurand initiated this action by filing a complaint in federal court. (Doc. 1) Claimant seeks a judgment finding that she should have been found entitled to benefits consistent with the onset date of December 12, 2009 and protective filing date of November 23, 2011. (Doc. 9, at 7). On August 25, 201, the Commissioner filed an Answer, which maintains that the ALJ's decision is correct and in accordance with the law and regulations, and that the findings of fact are supported by substantial evidence. (Doc. 2). Together with that Answer, the Commissioner filed a certified transcript of the administrative proceedings in this case. (Doc. 8).
This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 10). We begin our analysis of the issues before us by reviewing the pertinent medical evidence of record.
Aurand claims that she became disabled on December 12, 2009 as a result of physical and mental impairments including bipolar disorder, personality disorder, polysubstance abuse, anxiety disorder, HIV, and hepatitis C. (Doc. 9, at 3). The ALJ decision also notes additional reported conditions of "upper respiratory infection, acute pharyngitis, gastritis, hiatal hernia, gastric ulcer, plantar fasciitis, left eye sty, toothache, paresthesia, otitis media, hypothyroidism, asthma, acute urinary tract infection, foot pain, nausea/vomiting, [and] polyneuropathy." (Tr. 1041). Of these, Aurand asserts in brief that bipolar disorder, personality disorder, polysubstance abuse, anxiety disorder, HIV, and hepatitis C are impairments that cause her to be unable to work. (Doc. 9, at 3).
Further, Aurand alleges that the mental health conditions, and the medications she takes to control those conditions, prevent her from working because she experiences lethargy (Tr. 1066), fatigue, confusion, and "is always tired" (Tr. 5); and "has trouble sleeping." (Doc. 9, at 5). Aurand is prescribed several different medications to control various physical and mental conditions, including: Lithium for bipolar disorder; Seroquel for schizophrenia and bipolar disorder; Topamax (typically for seizures and migraines); Atripla or Stribild for HIV; an Albuterol inhaler for asthma; Prilosec for stomach issues; Nicoderm-CQ for smoking cessation; and Sudafed "as needed". (Tr. 1064-66). Additionally, Aurand testified that she has diarrhea and vomiting related to a stomach ulcer or hernia that was still being investigated by her treating physician at the time of the October 15, 2015 hearing. (Tr. 1066).
The ALJ noted that Aurand is diagnosed with HIV and hepatitis C but that she had declined to treat the hepatitis C. (Tr. 364, 1043). More accurately, medical records beginning in 2006 indicate that the delay in treating the hepatitis C was at the recommendation of her treating physician based on her low viral load count. (Tr. 475). One of Aurand's primary physicians is Michael Foltzer, M.D. from Geisinger Infectious Disease — Danville, who primarily treats her HIV, and monitors the hepatitis C. (Tr. 470-74). A letter from Dr. Foltzer dated October 23, 2006 indicates that hepatitis C has a low viral load and that "we can delay treatment for probably years." (Tr. 475). Treatment records Geisinger Gastroenterology — Danville dated May 15, 2007 note that Aurand was still not receiving therapy treatments for hepatitis C, but continued to be closely monitored by Dr. Foltzer. (Tr. 503). Throughout this period, medical records indicate that Aurand was compliant with HIV treatments and the condition has remained stable. (Tr.1043).
On January 31, 2012, Aurand reported to Geisinger Gastroenterology — Danville for assessment of the hepatitis C diagnosis on referral from Dr. Foltzer. (Tr. 373-85). She self-reported being fatigued, with no diarrhea/vomiting or nausea, and with intermittent constipation. (Tr. 373). Doctor notes indicate that the HIV and hepatitis C "coinfection [sic] leads to accelerated liver fibrosis" and scheduled a liver biopsy. (Tr. 375). Doctor also noted that he would contact the treating psychiatrist because "hep C [sic] treatment . . . can increase depression." (Id.) A needle biopsy of the liver was conducted on February 10, 2012. (Tr. 396-401). Results indicated mild chronic inflammation, no bile duct injury, mild stenosis, and no significant fibrosis. (Tr. 402). Later notes from Dr. Feltzer state that Aurand cannot take hepatitis C medications because it would worsen existing depression. (see e.g. Tr. 744, 783). In another consultative gastroenterology examination on October 24, 2014, Dr. Preneet Bast of Susquehanna Community Health reported that he needed psych clearance before starting hepatitis C treatment because of "significant depression history." (Tr. 1226-28). There are no records after October 2014 indicating that either Dr. Foltzer or Dr. Bast obtained clearance from one of Aurand's psychiatrists to begin treatment for hepatitis C. A note from a doctor visit on May 29, 2015 from Dr. Gotoff states they would need to start treatment for her hepatitis C "sooner rather than later." (Tr. 1550).
Next, Aurand claims that acute nausea, vomiting, and diarrhea significantly impairs her ability to work. (Tr. 1065-66). Psychiatric records from The Meadows during a ten day inpatient stay May 6 through May 16, 2012 indicate that Aurand self-reported binge/purge conduct and had her bathroom locked by staff to prevent her from purging after being administered psychiatric medications. (Tr. 861, 1005). Otherwise, none of the medical records from 2006 through the beginning of April 2015 from any source indicate that nausea and vomiting had been an ongoing issue. Gastrointestinal issues or nausea/vomiting had been expressly denied on several occasions before and after April 7, 2015. (e.g. Tr. 1193 on June 1, 2015 denied nausea, vomiting, diarrhea, constipation; Tr. 1229 on October 24, 2014 denied lethargy, nausea, and vomiting; Tr. 773 on June 5, 2012 "denies any nausea/vomiting or abd [sic] pain"; Tr. 1234 on January 31, 2012 "no diarrhea/vomiting or nausea"). The first reference to these issues is on April 7, 2015 in which claimant self-reported to her primary care physician that the vomiting and diarrhea had been ongoing for a year. (Tr. 1181). A follow up appointment on April 21, 2015 noted that an endoscopy found gastritis and that Aurand experienced nausea with vomiting "once every few weeks", and "daily nausea that waxes and wanes." (Tr. 1180).
In addition Aurand claims disabling psychological conditions relating to anxiety, depression, bipolar disorder, personality disorder, polysubstance abuse, and PTSD. Review of the psychiatric records reveal that these conditions have been ongoing for the duration of the medical records provided, which cover years 2006 through 2015. During that time, Aurand has had some success and some setbacks in her psychological treatment. Her setbacks tend to center around illicit drug use, her choosing to discontinue medication on her own, or adjustments of her medications. On January 6, 2010, Dr. Fotlzer noted that Aurand had just been released from a psychiatric inpatient facility due to a cocaine "relapse" and depression. (Tr. 583). On April 19, 2011, she requested Dr. Foltzer reduce her Prozac medication (Tr. 611); this resulted in needing to increase her Prozac at her next visit due to increased depression. (Tr. 623). From May 6, 2012 through May 16, 2012, Aurand was voluntarily committed to inpatient treatment at The Meadows treatment center. (Tr. 856-1026). On admission, she was suicidal, self-harming, experiencing auditory and visual hallucinations, and made vague statements of homicidal ideation. (Tr. 858-59). Her short term memory and concentration were "impaired", but long term memory was "intact." (Tr. 860). She told staff that she had stopped taking her bipolar medication and had snorted cocaine "recently" before being admitted to The Meadows. (Tr. 861).
Treatment notes from Dr. Foltzer on May 17, 2012 observe that Aurand's psychiatric admission was for "depression" but had chosen on her own to cancel Seroquel "due to jitters and excessive am [sic] grogginess." (Tr. 759). On June 5, 2012, Dr. Foltzer prescribed Lithium and Topamax because she was self-harming by "banging her head against the wall." (Tr. 773). A report dated August 27, 2012 by psychiatrist John Mesaros indicates a problem with labile moods ("mood swings") where Aurand "will become angry for no reason and feels some minor depression. Sleeps about 7.5 hours per night." (Tr. 740) Dr. Mesaros states that the admission to The Meadows was for a suicide attempt due to depression but that she also experiences paranoia and insomnia that causes her to sleep at odd hours and wake frequently "with her mind racing." (Tr. 743). Dr. Mesaros noted DSM IV diagnosis of Axis I: Bipolar I with psychosis; Axis II: Histrionic Personality Traits; Axis III: HIV+ and Hepatitis C- active; Axis IV: "mod to severe with multiple ip [sic] stays in past 3 years"; and Axis V: 52 GAF. (Tr. 744). Treatment notes from Dr. Foltzer on September 11, 2012 indicate Aurand was depressed and stated that she had stopped taking all medications; he persuaded her to restart Topamax and provided her an excuse note for school. (Tr. 781, 790).
The next psychiatric report from Dr. Sultana Begum at Universal Behavioral Health dated June 24, 2013. (Tr. 851-55). Dr. Begum notes that Aurand claims problems with anxiety, depression, and PTSD. (Tr. 851). She experiences manic episodes where she cannot sleep and has racing thoughts, and overeating to the point of vomiting. (Tr. 851). The depression interferes with concentration and she has suicidal ideation. (Tr. 851). She additionally reported that the concentration problems have been increasing in severity over the last two to three years. (Tr. 851). PTSD causes sleep disturbance due to experiencing nightmares and screaming in her sleep. (Tr. 851). Aurand stated that she had stopped all psychiatric treatment two months prior and that her 14 year old son had been living with her for four months. Aurand reported to Dr. Begum that she was "now clean from all drugs for four years" (Tr. 853), though records indicate that she had used cocaine prior to her inpatient treatment at The Meadows in 2012. (Tr. 861). Additionally, she was unable to spell the word "TABLE", recall three common words without help, or say the days or the week or months of the year. (Tr. 854). Dr. Begum attributed her difficulties during the evaluation to "memory problem" and noted "cognitive impairment, not otherwise specified, rule out secondary to medical condition" and requested that her primary doctor fax liver enzyme tests (Tr. 854-55). Notes indicate that there was to be a follow up visit, but there are no additional records from this provider.
The ALJ incorrectly identified records dating from July 2013 through September 2015 as records from The Meadows, but which were actually records from Universal Community Behavioral Health (UCBH). (Tr. 1453-77). The substantive evaluation of the records is an accurate statement as to their content and the error appears to be merely typographical. Aurand saw several different UCBH clinic psychiatrists during this period extending more than two years. The records discuss medication adjustments, no suicidal ideation, no auditory or visual hallucinations, and generally pleasant and alert demeanor. (e.g. Tr. 1453, 1459, 1462, 1464). There is one instance of delusional thoughts noted on September 12, 2013 following a change in medication from the prior visit, which prompted an adjustment of medication. (Tr. 1453, 1455-56). A subsequent spike in anxiety reported on October 16, 2013 was linked to upcoming final examinations and was resolved with another medication adjustment. (Tr. 1457). At a follow up in January 2014, she stated she was now doing well in school with a 3.84 GPA. (Tr. 1459). On February 18, 2014, she reported "she is doing extremely well and feeling stable on her medications." (Tr. 1462-63). This trend of doing "extremely well" and performing well in school continued for the duration of the medical records provided. (See generally Tr. 1462-77). A note from a doctor visit on May 29, 2015 from Dr. Gotoff states "she may very well have Efavirenz induced psychiatric issues. Will change to Stribild and see how she does." (Tr. 1550).
An additional consultative psychiatric evaluation was completed by David J. Smock, Ph.D. at the request of the Disability Determination Service on February 16, 2012. (Tr. 403-15). Dr. Smock reported that Aurand was "extremely anxious" and kept moving her leg up and down. (Tr. 411). She calmed down over the course of the examination until the structured mental status questions, at which time she became agitated again. (Tr. 411). Dr. Smock reports on Aurand's self-reported claims that she has been unable to keep a job for more than 5 months due to concentration issues or being unable to emotionally handle the work required and noted she does not take the psychiatric medications as prescribed because "she does not perceive that they help her at all." (Tr. 412). Aurand was cooperative, oriented, demonstrated "coherent and basically goal directed" thinking processes, and appropriate affect. (Tr. 413). She self-reported depression with excessive sleep, lost motivation with suicidal ideation; anxiety attacks with increased heart rate and chest pain; and manic periods with high energy and racing thoughts. (Tr. 413). Dr. Smock noted impairment in attention, concentration, memory, and inability to do simple math calculations. (Tr. 413). His opinion was that Aurand would be unable to maintain the necessary attention and concentration to work because she is unable to follow simple directions or make appropriate decisions. "She would not be able to deal with the stress of a work place;" cannot perform tasks independently; cannot "effectively relate to peers, supervisors, and customers;" and cannot manage her own funds. (Tr. 414). In the statement of prognosis, Dr. Smock noted that "medication is not controlling the symptoms effectively." (Tr. 415).
As part of the initial administrative review of Aurand's claims, the Disability Determination Explanation was completed on March 27, 2012 by state agency doctor Frank M. Mrykalo, Ed.D., based on the medical record. (Tr. 50-64). The report notes that claimant alleged that inability to work began on December 12, 2009 (Tr. 50); and that Aurand is diagnosed with HIV, hepatitis C, asthma, depression, anxiety, PTSD, and "personality disorders" and "affective disorders". (Tr. 54, 56). The Psychiatric Review portion of the report completed by Dr. Mrykalo found that, which Aurand has medically determinable impairments of affective disorder (Listing 12.04), anxiety-related disorder (Listing 12.06), and substance addiction disorders (Listing 12.09), they do not "precisely satisfy the diagnostic criteria" for criteria A, B, or C of the Listings. (Tr. 56-57). Dr. Mrykalo also rated the claimant's statements as "partially credible" in light of the medical records provided.
In the mental RFC assessment, Dr. Mrykalos found that Aurand was not significantly limited for simple instructions but moderately limited for detailed instructions, and moderately limited in ability to maintain attention and concentration. (Tr. 60). She was also moderately limited in ability to complete a normal workday and workweek without her psychological conditions interrupting. (Tr. 60). He also found that Aurand was not significantly limited in her ability to perform within a schedule, sustain a routine without special supervision, work in coordination with or in close proximity to others without being distracted, and making simple work-related decisions. (Tr. 60).
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); 20 C.F.R. § 404.1505(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); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, the claimant must show that he contributed to the insurance program, is under retirement age, and became disabled prior to his last date insured. 42 U.S.S §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)(4). 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 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. Commissioner of SSA, 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).
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 in engaging in any of his or her past relevant work. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993); 42 U.S.C. §423(d)(5); 42 U.S.C. §1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R. §§404.1512, 416.912. Once this burden has been met by the claimant, the burden shifts to the Commissioner at Step 5 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), 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).
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, at 1064. 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 this Court must answer, therefore, is not whether Ms. Aurand is disabled, but 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 U.S. Dist. LEXIS 31292, 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, at 536 ("[T]he court has plenary review of all legal issues. . . .").
Aurand's first argument on appeal is that the ALJ erred in calculating her residual functional capacity (RFC). An 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. §§416.920(e), 416.945(a)(1). "Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 SSR LEXIS 5, *1. To make this assessment, the ALJ considers all of the claimant's medically determinable severe and non-severe impairments identified in step two. 20 C.F.R. §416.945(a)(2). The ALJ is further required to evaluate all relevant evidence, Fargnoli v. Halter, 247 F.3d 34, 40-41 (3d Cir. 2001), and explain reasons for rejecting any such evidence. Burnett, at 122.
The ALJ assigned Aurand an RFC for capacity to perform at all exertion levels of work, except that she is limited to nonexertional limitations: "occasional climbing, balancing and stooping but never on ladders"; "avoid temperature extremes, humidity, fumes, and hazards"; "limited to simple, routine tasks that involve low stress as defined as only occasional decision making and only occasional changes in the work setting"; and "no interaction with the public and only occasional interaction with co-workers and supervisors." (Tr. 1047).
Aurand argues that "there is no evidence of record that the Plaintiff retained this residual functional capacity." (Doc. 9, at 4). Claimant argues that medical records—specifically from The Meadows, Dr. Begum at Universal Community Behavioral Health, and the consultative report from Dr. Smock—do not support this RFC finding. (Id.). However, Aurand's Brief fails to inform this Court has to how these records contradict the ALJ findings and states "each of those evaluations have the Claimant's ability to perform in a work setting more restrictive" that what was determined by the ALJ. (Doc. 9, at 4).
Much of Aurand's argument in support of this disability claim hinges on the one-time consultative examination completed by Dr. Smock at the request of the Disability Determination Service ("DDS") on February 16, 2012. In his report, Dr. Smock conveys Aurand's self-reports that she has concentration issues and cannot emotionally handle working and noted she does not take the psychiatric medications as prescribed because "she does not perceive that they help her at all." (Tr. 412). Also recorded are her self-reports of depression with excessive sleep, lost motivation with suicidal ideation; anxiety attacks with increased heart rate and chest pain; and manic periods with high energy and racing thoughts. (Tr. 413). Dr. Smock notes impaired attention, concentration, memory, and inability to do simple math calculations. (Tr. 413). His opines that Aurand would be unable to maintain the necessary attention and concentration to work because she is unable to follow simple directions or make appropriate decisions. (Tr. 414-15). "She would not be able to deal with the stress of a work place;" cannot perform tasks independently; cannot "effectively relate to peers, supervisors, and customers;" and cannot manage her own funds. (Tr. 414). In the statement of prognosis, Dr. Smock noted that "medication is not controlling the symptoms effectively." (Tr. 415).
In assigning "little weight" to the Smock report, the ALJ detailed the how extreme this report is in light of the record viewed as a whole. (Tr. 1050).
Aurand complains in brief that the ALJ "faulted Dr. Smock for not having access to medical records" and that "DDS did not provide those records to him." (Doc. 9, at 4-5). It is not error for the ALJ to note that Dr. Smock conducted a one-time exam and did not review other records. This is an observation of fact and something any ALJ should note when considering potential limitations of a consultative examination. The court also notes three important considerations which support the ALJ's assessment of this evidence. First, Dr. Smock notes in his report that Aurand was not medication-compliant that the time of the examination. (Tr. 412). Second, the Smock report was taken at an atypical time for Aurand, shortly before Aurand was voluntarily committed to psychiatric inpatient facility at The Meadows for medication non-compliance, cocaine use, and attempted suicide. (Tr. 858-59, 861). Finally, we note that following her treatment at The Meadows, restarting appropriate controlling medications, and subsequent treatment at UCBH, Aurand has shown significant and marked improvement of her conditions. (Tr. 1462-77). Given these factual considerations, the ALJ's assessment of the Smock report is that it is a snapshot that is not consistent with the record as a whole, (Tr. 1050), was supported by substantial evidence and may not now be disturbed on appeal.
In reviewing the records from The Meadows, we have extensive documentation of a ten day inpatient psychiatric treatment after a suicide attempt and cocaine "relapse". (Tr. 583, 861). Aurand does not note for us what this acute short-term treatment should indicate regarding her long-term ability to work, and merely declares it "consistent" with the report from Dr. Smock. (Doc. 9 at 4). At the time of her admission to The Meadows, Aurand was in acute psychiatric distress, had stopped all psychiatric medications, and had recently snorted cocaine. (Tr. 858-59, 861). The initial notes of her stay describe no progress (e.g. Tr. 998-99, 1003). On May 10, 2012, staff began locking her bathroom for two hours after administering medications with dinner on information that she was "purging after meds." (Tr. 865, 1005). After she was restricted in this fashion, Aurand experienced marked improvement, with daily treatment notes indicating she is more cooperative and interactive, spending less time sleeping, more willing to participate in group activities, and having no more nightmares. (e.g. Tr. 1007-16). She was released 6 days later after consistent good progress. (Tr. 1016). The only portion of the inpatient notes that are "consistent" with Dr. Smock's one-time consultative examination appear during the worst part of her initial admission during which time she was in acute psychiatric distress and engaging in medication avoidance. (Tr. 998-1005). When she became medication-compliant, her behavior was significantly improved. (Tr. 1007-16) More significantly, this single hospitalization for ten days with no subsequent significant psychological problems in the next several years seems, appears isolated and episodic in nature and provided a substantial basis for the ALJ to conclude that the disabling event of the psychiatric hospitalization was a temporary and not permanently disabling condition, particularly considered in light of the record as a whole. (Tr. 1007-16; Tr. 1462-77). Accordingly, we find no error in the ALJ's finding that The Meadows records as a whole do not support a finding of permanent disability.
The initial report from Universal Community Behavioral Health completed by Dr. Begum also makes no mention of claimant's ability to work. (Tr. 851-55, duplicated in the record at Tr. 1448-52). Dr. Begum notes that Aurand stated she had stopped all psychiatric treatment with Dr. Mesaros two months prior. (Tr. 851). Aurand self-reports manic episodes with difficulty sleeping due to racing thoughts and overeating to the point of vomiting; depression that interfered with concentration with increasing severity; and PTSD with sleep disturbance, nightmares, and nighttime paranoia with auditory hallucinations. (Tr. 851). Aurand's thought processes were directed and goal-oriented, but she had difficulty with short-term memory (recalling a list of items), long-term memory (recalling the order of recent U.S. Presidents), and difficulty with concentration (being unable to spell a word or say days of the week in order). (Tr. 854). The Recommendations section of the report only indicates plans for medication changes. (Tr. 855).
As indicated previously, the ALJ incorrectly identified records dating from July 2013 through September 2015 as records from The Meadows, but which were actually records from Universal Community Behavioral Health (UCBH). (Tr. 1453-77). The substantive evaluation of the records is an accurate statement as to their content and the error appears to be merely typographical and therefore is harmless. Aurand saw several different UCBH clinic psychiatrists during this period extending more than two years. Aurand does not mention in Brief what portion of these records she believes is "consistent" with Dr. Smock's report. (Doc. 9, at 4).
The records discuss medication adjustments, and indicate no suicidal ideation, no auditory or visual hallucinations, and a generally pleasant and alert demeanor. (e.g. Tr. 1453, 1459, 1462, 1464). There is one instance of delusional thoughts and one spike in anxiety, each linked to medication changes. (Tr. 1453-57). Otherwise, the records are on the whole positive regarding Aurand's progress. In January 2014, she stated she was now doing well in school with a 3.84 GPA. (Tr. 1459). On February 18, 2014, she reported "she is doing extremely well and feeling stable on her medications." (Tr. 1462-63). This trend of doing "extremely well" and performing well in school continued for the duration of the medical records provided. (See generally Tr. 1462-77). There is nothing in these records that is "consistent" with the extreme findings in Dr. Smock's report.
In sum, of the three records cited by Aurand in support, only the report from Dr. Smock purported to offer an opinion on her ability to work. (Tr.414). The records from UBHC and The Meadows demonstrate that she is generally doing well so long as she remains compliant with the medications prescribed to her by her treating psychiatrists and so long as she avoids abusing illegal drugs.
In this case the ALJ considered all of the evidence of record before making the determination that Aurand has enough residual function to be able to complete seated a full range of exertion levels of work with the provided restrictions. We further note that the RFC is the maximum that a person can do despite their restrictions, it is not indicative of the type of job the claimant must take at some point in the future. Here, the ALJ found that so long as there are limitations to the amount of interaction and stressors Aurand would be exposed to, she can still work. Substantial evidence supported this finding since, Aurand was capable of completing an online college degree, which has limited interaction with others, while she maintained her treatment protocols and the medications prescribed to her. The ALJ properly considered this information, together with all of the medical information of record, when determining that Aurand had the capability of working under similar restrictions.
Aurand asserts that the ALJ "failed to give proper weight" to her subjective statements regarding the severity of her limitations. (Doc. 9, at 5). In evaluating a claimant's subjective complaints regarding pain or other symptoms, the ALJ must follow a two-step process. 20 C.F.R. § 404.1529(b),(c); id. § 416.929(b),(c); Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2. Initially, "[a]llegations of pain and other subjective symptoms must be consistent with objective medical evidence." Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999); see also 20 C.F.R. § 404.1529(b); id. § 416.929(b); Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2 ("First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the individual's pain or other symptoms.").
After meeting this threshold obligation, the ALJ must "evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work. This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it." Hartranft, 181 F.3d at 362; see also 20 C.F.R. § 404.1529(c); id. § 416.929(c); Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2. At this second step, the ALJ's finding must consider all relevant evidence of record, unless the claimant's subjective complaints are fully substantiated by objective medical evidence. 20 C.F.R. § 404.1529(c)(2),(3); id. § 416.929(c)(2),(3); Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2, *4. "This includes the medical signs and laboratory findings, the individual's own statements about their symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record." Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2. "[A]llegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence." Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *6; see also 20 C.F.R. § 404.1529(c)(2); id. § 416.929(c)(2).
In considering the claimant's own statements and testimony at step two of this analysis, the ALJ is required to make an explicit credibility determination "whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence." Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *4; see also 20 C.F.R. § 404.1529(c)(4); id. § 416.929(c)(4). "The [ALJ's] decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *4.
Credibility determinations are reserved for the ALJ. Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). Our analysis is therefore restricted to determining if the ALJ's decision is supported by substantial evidence and whether the ALJ applied the correct legal standard; we may not weigh the evidence, and we will not set the ALJ's decision aside if it is supported by substantial evidence, even if we would have decided the factual inquiry differently. Hartranft, 181 F.3d at 360.
In this case, the ALJ went through an extensive discussion of why she found Aurand's claims of intensity, persistence and limitations as not "entirely credible," and specifically found that Aurand's statements were not "entirely credible for the reasons explained in this decision." (Tr. 1048). The ALJ then proceeded to explain what about Aurand's claims she found not credible. The ALJ worked through, item by item, the medical source evidence before noting:
Our own separate review of the entirety of the medical record finds us in accord with the ALJ. The medical records do not support a finding that Aurand has suffered from chronically disabling side effects related to the claims of vomiting, diarrhea and nausea. We particularly note that the medical record contains more references to Aurand denying having these issues than there are confirming a problem. The first reference to Aurand experiencing vomiting, diarrhea and nausea is on April 7, 2015 in which claimant self-reported that the vomiting and diarrhea had been ongoing for "a year." (Tr. 1181). A follow up appointment on April 21, 2015 noted that an endoscopy found gastritis and that Aurand experienced nausea with vomiting "once every few weeks", and "daily nausea that waxes and wanes." (Tr. 1180).
At a visit a month later on May 29, 2015, she denied any nausea, vomiting, diarrhea, or constipation. (Tr. 1546). Otherwise, there are no records to support Aurand's testimony that this condition occurs in the amount, frequency or severity asserted. (Tr. 41-42, 1066-67). Further, if the conditions had been going on for about "a year" as she told her doctor, it would have commenced more than five years after the alleged disability date of December 12, 2009, three years after the filing date for her Title XVI claim on November 23, 2011, and a year after her first ALJ hearing in this matter. We also note that Aurand mentioned to the ALJ that she had diarrhea as a side effect of one of her medications at the first hearing, but did not mention any vomiting or nausea. (Tr. 42).
Aurand next complains that the ALJ inappropriately considered her daily living activities in making this credibility determination. (Doc. 9, at 7). As the Commissioner correctly supplies "it is well-established that the ALJ may consider the extent of daily activities in determining the credibility of a claimant's testimony. (Doc. 10 at 17) (citing 20 C.F.R. § 416.929(c)(3); Turby v. Barnhart, 54 F. App'x 118, 121 n.1 (3d Cir. 2002); Fegley v. Colvin, 2015 WL 1636045, at *20 (M.D.Pa. 2015). We further note that the cases Aurand cites in support of her argument only state that daily activities alone cannot be used to determine whether a claimant can work.
The record as a whole reflects generally benign examinations with periodic spikes in depression or anxiety. Otherwise, Aurand has been under a conservative treatment plan of medication and counseling with no significant adverse events since the May 2012 inpatient treatment at The Meadows, when she last went off her medication and used cocaine. Further, she was able to successfully complete an online college degree with high marks after she became consistently compliant with medication and has had custody of her son since 2013. There was only one further note as to Dr. Gotoff's suspicion that her HIV medication was causing "Efavirenz-induced psychiatric issues" and Aurand was switched to another medication. (Tr. 1550).
Given the extensive medical records before us, this Court finds that there is substantial evidence in the administrative record to support the ALJ's finding that Aurand's statements concerning the intensity, persistence and limiting effects of his symptoms were "not entirely credible," and that this determination was adequately explained and otherwise based upon a correct application of relevant law.
In sum, the ALJ's assessment of the evidence in this case fully 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. Therefore, notwithstanding the argument that this evidence might 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) (citing 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 conclude that substantial evidence supported the ALJ's evaluation of this case. Therefore, we recommend that the district court affirm this decision, direct that judgment be entered in favor of the defendant, and instruct the clerk to close this case.
Accordingly, because we find that ALJ's decision is supported by substantial evidence, IT IS RECOMMENDED that:
1. JASMINE ANGELA AURAND's request for relief should be DENIED, and the Commissioner's final decision denying her application for benefits under Title XVI of the Social Security Act should be AFFIRMED;
2. Final judgment should be entered in favor of the Commissioner and against JASMINE ANGELA AURAND; and
3. The Clerk of Court should be directed to close this case. 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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
