WILLIAM I. ARBUCKLE, Magistrate Judge.
Plaintiff Lori Lynn Librinca, an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
On November 15, 2013, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Doc. 15-5, p. 7; Admin Tr. 111). In this application, Plaintiff alleged she became disabled as of May 1, 2009, when she was forty-seven (47) years old, due to the following conditions: 1. RSD (Reflex Sympathetic Disorder); 2. Injury to both knees; 3. Incontenence (sic); and, 4. Right shoulder pain. (Doc. 15-6, p. 6; Admin Tr. 121). Plaintiff alleges that the combination of these conditions affects her ability to walk [unable to walk (Doc. 15-6, p. 28; Admin Tr. 143)] or work because medication from her pain pump makes her sleepy. (Doc. 15-6, p. 26; Admin Tr. 141). Plaintiff has at least a high school education and four years of college. (Doc. 16-2, p. 6; Admin Tr. 506). Before the onset of her impairments, Plaintiff worked as a Registered Nurse. (Doc. 16-2, p. 7; Admin Tr. 507).
On December 27, 2013, Plaintiff's application was denied at the initial level of administrative review. (Doc. 15-4, pp. 2-5; Admin Tr. 87-90). On January 14, 2014, Plaintiff requested an administrative hearing. (Doc. 15-4, pp. 6-7; Admin Tr. 91-92).
On November 23, 2015, Plaintiff, assisted by her counsel, appeared and testified during a hearing before Administrative Law Judge Michelle Wolfe (the "ALJ"). (Doc. 16-2, pp. 2-20; Admin. Tr. 502-520). On November 25, 2015 (transmitted December 1, 2015), the ALJ issued a decision denying Plaintiff's application for benefits. (Doc. 15-2, pp. 9-17; Admin. Tr. 8-16). On February 2, 2016, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"). (Doc. 15-2, p. 44-45; Admin. Tr. 43-44).
On April 26, 2017, the Appeals Council denied Plaintiff's request for review. (Doc. 15-2, pp. 2-4; Admin. Tr. 1-3).
On June 23, 2107, Plaintiff began this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Doc. 1, p. 2). As relief, Plaintiff requests that the Court ". . . award a period of disability and disability benefits commencing on the date of eligibility." (Doc. 1, p. 2). Plaintiff's Brief mad an additional request for "remand for benefits" or alternatively "remand for further proceedings" (Doc. 19, p. 4).
On November 24, 2017, the Commissioner filed an Answer. (Doc. 14). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Doc. 14). Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Docs. 15 & 16).
Plaintiff's Brief (Doc. 19), and the Commissioner's Brief (Doc. 22), have been filed. Plaintiff did not file a Reply Brief. This matter is now ripe for decision.
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 Plaintiff is disabled, but whether the Commissioner's finding that 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 twelve months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(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); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all 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).
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; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five 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.
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, 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).
In her November 25, 2015, decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through March 31, 2010. (Doc. 15-2, p. 9; Admin Tr. 8). Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between May 1, 2009 (Plaintiff's alleged onset date) and March 31, 2010 (Plaintiff's date last insured) ("the relevant period"). (Doc. 15-2, p. 11; Admin Tr. 10). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: Right Lower Extremity Reflex Sympathetic Dystrophy; Thoracic Spondylosis; Degenerative Joint Disease of the Knees status post Surgeries; History of Right Rotator Cuff Repair; and, Right Shoulder Impingement. (Doc. 15-2, p. 11; Admin Tr. 10). At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 15-2, p. 12; Admin Tr. 11).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in sedentary work as defined in 20 C.F.R. § 404.1567(a) subject to the following additional limitations:
(Doc. 15-2, p. 13; Admin Tr. 12).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in her past relevant work. (Doc. 15-2, p. 15; Admin. Tr. 14). At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Doc. 15-2, pp. 15-16; Admin Tr. 14-15).
(Doc. 15-2, p. 16; Admin Tr. 15)
To support her conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations finding that the individual would have been able to perform the requirements of representative occupations such as: records clerk (DOT# 219.587-010); order clerk (DOT# 209.567-014); and, document preparer (DOT# 249.587-01). (Doc. 15-2, p. 16; Admin Tr. 15).
Finally, the ALJ determined that the claimant was
In her Statement of Errors Plaintiff first argues that the ALJ erred by finding that the Plaintiff did not meet the listing.
(Doc. 19, p. 2).
In support of this contention Plaintiff provides only the following argument:
(Doc. 19, p. 3)
Exhibit 7F, the exhibit relied upon by Plaintiff to support her contention that the listing was met, consists of 12 pages of office treatment notes from June and October 2014, well beyond the relevant period. More importantly the records only show that Plaintiff was post knee surgery and receiving injections for knee pain. There is no indication that the pain was debilitating or that it prevented her from ambulating effectively.
A careful reading of the ALJ's decision shows that the ALJ actually explained, "[Plaintiff's] impairment does not meet listing 1.02A because it is not associated with involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b" (Doc. 15-2, p. 12; Admin. Tr. 11). The ALJ recognized that Plaintiff's impairment was associated with a major peripheral weight-bearing joint as evidenced by her finding that Plaintiff's severe impairments included DJD of the knees, status post surgeries (Doc. 15-2, p. 11; Admin. Tr. 10). However, consistent with the evidence of record, the ALJ determined that all the above listing requirements, particularly an inability to ambulate effectively, were not satisfied prior to Plaintiff's date last insured. The decision by the ALJ that the Plaintiff did not meet a listing is supported by substantial evidence and should be affirmed.
In her Statement of Errors Plaintiff next argues that the ALJ erred by finding that Plaintiff had the residual functional capacity to perform sedentary work. To support this contention Plaintiff only states:
(Doc. 19, p. 3).
Page 460 of the Record (Doc. 15-12, p. 22; Admin. Tr. 460), relied upon by plaintiff to support her contention that there is no evidence she could perform sedentary work, is page two of a three-page treatment note prepared by Lynn Grove, CRNP on November 22, 2014, significantly past the relevant period. Although Plaintiff does not explain why this treatment note is relevant, I presume it is because the CRNP notes that the patient: "Appears chronically ill & debilitated. Distress today from sciatica. Appears to be in mild-moderate distress, experiencing pain, pain is indicated by changing positions often and facial wincing. Speech is clear and appropriate." (Doc. 15-12, p. 22; Admin. Tr. 460). The rest of the examination notes indicate that everything is normal except "walks with a crooked . . . limping . . . slow gait." (Doc. 15-12, p. 22; Admin. Tr. 460). This single reference to "chronically ill & debilitated" at a time well past the relevant period is not enough to invalidate the factual analysis of other records by the ALJ and her finding that the Plaintiff was not disabled and was able to perform sedentary work. SSR 96-5p and the regulation in effect at the time of this decision, 20 C.F.R. 404.1527(c)(3) states: "We will not give any special significance to the source of an opinion on issues reserved to the Commissioner . . ." While "chronically ill & debilitated" is not the same as "disabled," the conclusion of disability is a question left to the Commissioner. I also note that the testimony presented at the hearing indicated that Plaintiff worked as a nurse from 1995 thru 1997 (Doc. 16-2, p. 7; Admin Tr. 507). When she stopped nursing because of an unspecified injury she owned and worked at a family business (a bar/restaurant) from 2003 to 2009, the years immediately preceding her application for benefits. (Doc. 16-2, p. 9, Admin Tr. 509). She testified that she visited with customers, did the books and banking and kept the recipes, but did not stand and cook all day. (Doc. 16-2, p. 15, Admin Tr. 515).
An individual's RFC is an assessment of the most she can still do despite the limitations caused by her impairments. 20 C.F.R. § 404.1545(a); Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3rd Cir. 1999). The RFC assessment is an administrative finding that the ALJ alone makes, not a medical opinion. See 20 C.F.R. §§ 404.1527(d)(2), 404.1546(c); see also Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) ("The ALJ — not treating or examining physicians or State agency consultants — must make the ultimate disability and residual functional capacity determinations."). The ALJ formulates the RFC finding based on all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of her limitations. 20 C.F.R. §§ 404.1545(a), 404.1546(c).
Plaintiff had the burden of presenting evidence that she did not have the RFC to perform any substantial gainful activity. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(c) ("You must provide medical evidence showing that you have an impairment(s) and how severe it is during the time you say you are disabled. You must provide evidence, without redaction, showing how your impairment(s) affects your functioning during the time you say you are disabled. . . ."); 20 C.F.R. § 404.1545(a)(3) ("In general, you are responsible for providing the evidence we will use to make a finding about your residual functional capacity."); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) ("It is not unreasonable to require the claimant, who is in a better position to provide information about his medical condition, to do so."); Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d. Cir. 2007) ("The claimant bears the ultimate burden of establishing steps one through four." (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). That burden was not met here. Neither party cites to any medical opinion in the record that limits Plaintiff to sedentary work during the relevant time period, and my review of the record did not find one. The ALJ's determination that Plaintiff could perform sedentary work is supported by her review of the medical evidence and the testimony of the Plaintiff.
The ALJ discussed the substantial evidence in the record that supported her comprehensive RFC finding (Doc. 15-2, pp 11-15; Admin Tr. 10-14), including the following:
As discussed above, there is no evidence that Plaintiff's bilateral knee DJD created functional limitations of disabling severity. Clinical tests conducted before Plaintiff's alleged onset date of disability revealed diffuse abnormality in the right knee, mild DJD and small effusion, and no acute fracture in the right knee, (Doc. 15-8, p. 19; Admin Tr. 209, 212), as well as DJD in the left knee (Doc. 15-8, p. 15; Admin Tr. 339).
Additional clinical tests conducted prior to Plaintiff's alleged onset date of disability also failed to demonstrate significant findings. Such tests showed Plaintiff had spondylosis in the thoracic spine, (Doc. 15-8, p. 3; Admin Tr. 193), only very minor cervical disc bulges with otherwise normal findings, (Doc. 15-8, p. 2; Admin Tr. 192, and 368), and normal lumbar spine findings without evidence of disc herniation or central/foraminal stenosis in August of 2007 (Doc. 15-7, p. 25; Admin Tr. 181).
These citations to the record evidence provide substantial evidentiary support for the ALJ's RFC finding. Therefore, I am not persuaded that remand is required for further consideration of a single treatment note from outside the relevant treatment period.
In support of this Statement of Error Plaintiff provides the following argument:
(Doc. 19, p. 3)
It appears that Plaintiff is asking this court to find that the ALJ committed error by finding that she was not disabled, and asking for a remand to permit the introduction of additional evidence.
As to the contention that the ALJ erred by finding that Plaintiff was not disabled, this argument simply does not contradict the findings of the ALJ. There are no medical opinions (or any records) for the relevant period (May 1, 2009 to March 31, 2010) to support a finding of disability. Plaintiff did, over a period of years, suffer from severe impairments that required surgery and a pain pump. However, the purpose of surgery is usually to repair, not disable. Without the Plaintiff pointing to any place in this record where disability is supported by medical evidence, there is no basis to overturn the finding of the ALJ that the Plaintiff was not disabled during the relevant period.
Regarding the request for remand to allow the introduction of additional evidence, there are a limited number of options open to the District Court once the Appeals Council has denied review in a Social Security case. A District Court may affirm the decision of the Commissioner, modify the decision of the Commissioner, or reverse the decision of the Commissioner with or without a remand based on the record that was made before the ALJ under sentence four of 42 U.S.C. § 405(g). Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). When a claimant seeks to rely on evidence that was not before the ALJ, however, the District Court may remand "only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ." Id. To hold otherwise would create an incentive to withhold material evidence from the ALJ in order to preserve a reason for remand. Id. at 595. There is no such showing in this record. Therefor remand may not be ordered to admit additional evidence.
IT IS RECOMMENDED that Plaintiff's request for benefits or a remand for further proceedings be Denied as follows:
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
