JOSEPH F. SAPORITO, Jr., Magistrate Judge.
Plaintiff, Roger Lee Cantelupe ("Cantelupe"), 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 his claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).
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. For the reasons expressed herein, we have found that the final decision of the Commissioner of Social Security is supported by substantial evidence. Accordingly, it is recommended that the final decision of the Commissioner denying Cantelupe's claims for benefits be AFFIRMED, and that Cantelupe's request for a new hearing or the award of benefits be DENIED.
On the date the ALJ issued her decision, Mr. Cantelupe was fifty-three years old. He most recently worked as a satellite installer, but stopped working on November 15, 2005 because his employer moved the company to Georgia. (Admin Tr. 272). Cantelupe was forty-five years old on his alleged onset date.
On November 16, 2011, Cantelupe protectively filed applications for benefits under Titles II and XVI of the Social Security Act. In both applications he alleged that, beginning December 23, 2006, he was no longer able to work due to the impairments of: degenerative arthritis, stripped tendon in thumb area (carpal tunnel), left shoulder problems, right leg surgery (L shaped bracket inserted-right hip), hip problems (need a hip replacement), and numbness in both legs. (Admin Tr. 272). His claims were initially denied on January 11, 2012. Thereafter, Cantelupe requested, and was granted, an administrative hearing. On June 6, 2013, with the assistance of his counsel, Cantelupe appeared and testified at an administrative hearing in Harrisburg, Pennsylvania before Administrative Law Judge Sharon Zanotto ("ALJ Zanotto"). Impartial vocational expert Paul A. Anderson ("VE Anderson") also appeared and testified.
Cantelupe testified that the biggest impediment to returning to work is the severity of his pain. Medical records reflect that he sustained a meniscal tear in January 2006, and underwent arthroscopic surgery to repair this injury February 2006. (Admin Tr. 372, 409-10). He reported that on December 23, 2006, he was struck by a vehicle as a pedestrian, and suffered a displaced right femoral neck fracture of the right hip, and underwent a reduction internal fixation surgery.
In February 2007 it was noted that Cantelupe's hip fracture was healing in a satisfactory position, although he still walked with a slight limp. (Admin Tr. 385). He also had a full range of motion in his right shoulder but exhibited a mildly positive impingement sign at 100 degrees of forward elevation that was worse with internal rotation.
Cantelupe had the hardware in his right hip excised on October 30, 2007. Two weeks after surgery he reported that he had no pain, and was walking without a limp. (Admin Tr. 398). Dr. Lippe instructed Cantelupe to participate in activities within reason, and to return in one year for a clinical recheck of his hip. (Admin Tr. 398).
In May 2008 Cantelupe presented to his primary care physician's office with complaints of severe hip pain. It was noted that Cantelupe was doubled over in pain. He was prescribed a 50mcg duragesic Fentanyl patch ("duragesic patch") and was referred back to Dr. Lippe for treatment. (Admin Tr. 357). The record reflects that Cantelupe did not return to Dr. Lippe until December 2011.
Cantelupe was examined by Dr. Brescia in November 2010 for treatment of right eye swelling. Although the treatment records do not contain any examination findings relating to Cantelupe's neck, back, hip, shoulder, or knee pain, prescription records reflect that he was prescribed 50mcg duragesic patches. (Admin Tr. 314, 421-22). In December 2010, Cantelupe was examined by Dr. Brescia with complaints of pain in his lower back and left buttocks that began one week ago. (Admin Tr. 423-25). On physical examination he was positive for paralumbar muscle spasms in the right lumbar spine.
On March 1, 2012, Cantelupe began to treat with Dr. William Nasuti. (Admin Tr. 456-59). Cantelupe complained of musculoskeletal pain in his lower leg that had persisted for the past year, and reported that duragesic patches had helped in the past.
On March 4, 2013, Cantelupe was examined by Dr. Sandra Fowler ("Dr. Fowler"). He complained of pain that was a severity level of five, that was intermittent and getting worse over time. (Admin Tr. 463-66). On physical examination, Dr. Fowler noted spasm, a right-sided partial weight bearing antalgic gait, right hip tenderness, and moderate pain with motion.
Cantelupe testified that he experiences pain and numbness in his legs, back, shoulders, and arms. (Admin Tr. 64-65). He alleged that he cannot hold his arms above his head for more than thirty seconds before they go numb.
Cantelupe also reported that he has some difficulty performing activities that require the manipulation of small objects due to bilateral carpal tunnel syndrome. (Admin Tr. 77-78). He reported that although he is able to feed himself and use zippers, he has difficulty buttoning buttons. (Admin Tr. 78).
Each morning, Cantelupe gets up between five and six o'clock. Then he performs a series of leg and hip exercises to regain mobility in his legs and back. After performing these exercises, he gets dressed and fixes himself a simple breakfast. (Admin Tr. 66). Before the onset of his conditions, Cantelupe used to enjoy hunting and fishing. (Admin Tr. 67). He reported that he has gone fishing since his alleged onset date, but has not done so since 2009 because it is difficult for him to walk along the riverbank to his fishing spots. (
Cantelupe testified that he is able to use public transportation. (Admin Tr. 60). He also reported that he is able to go to the post office, and goes grocery shopping for thirty minutes once every three weeks. (Admin Tr. 63).
In addition to his hearing testimony, Cantelupe also made statements about the intensity, persistence, and limiting effects of his impairments in a function report and supplemental pain questionnaire completed in November 2011. (Admin Tr. 279-88). In his function report, Cantelupe reported that his conditions affected his ability to: lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, follow instructions, and use his hands. (Admin Tr. 284). He stated that he could walk up to a quarter mile at one time, that his ability to pay attention was dependent upon his pain level, that he generally finishes tasks that he starts, he follows written instructions well, gets along with authority figures, handles stress well, and handles changes in routine "O.K." (Admin Tr. 284-85). Cantelupe also reported that he uses braces, heel lifts, and a cane "when needed" on a weekly basis. (Admin Tr. 285).
On September 17, 2013, the ALJ issued a decision denying Cantelupe's claims. Thereafter, Cantelupe sought review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review ("Appeals Council"). Together with his request, Cantelupe submitted additional evidence that was not before the ALJ when she issued her decision. (Admin Tr. 8-14, 477-98). On January 12, 2015, the Appeals Council denied Cantelupe's request for review.
On February 25, 2015, Cantelupe filed a timely complaint in this Court. (Doc. 1). In his complaint, Cantelupe alleges that the ALJ's decision denying his claims contained an error of law, and is not supported by substantial evidence. (Doc. 1 ¶9). As relief, he requests that the Court reverse the ALJ's decision denying his claims and award him the benefits to which he is entitled, or in the alternative, grant him such other relief to which he may be entitled. (Doc. 1 ¶16-18). On May 6, 2015, the Commissioner filed an answer. (Doc. 8). In her answer, the Commissioner asserts that the final decision denying Cantelupe's claims is correct and in accordance with the law and regulations, and that the findings of fact contained therein are supported by substantial evidence. (Doc. 8 ¶8). Together with her answer, the Commissioner filed a certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of are based. (Doc. 9).
This matter has been fully briefed by the parties, and is now ripe for decision. (Doc. 10, 11).
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.
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);
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between steps 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)."
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); 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, 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), 416.912(f);
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."
At step three of the sequential evaluation process, the ALJ must determine whether a claimant's alleged impairment is equivalent to a number of listed impairments that are acknowledged to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1;
The Commissioner's regulations defines medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant's] physical or mental restrictions. 20 C.F.R. §§404.1527(a)(2), 416.927(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §§404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §§404.1527(c) and 416.927(c). "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker." SSR 96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant, and therefore their opinions are generally entitled to more weight.
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinions: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. §§404.1527(c), 416.927(c).
Further, it is important to note that 20 C.F.R. §§404.1527(e) and 416.927(e) provide that at the ALJ and Appeals Council levels of the administrative review process, findings by nonexamining State agency medical and psychological consultants must be evaluated as expert opinion evidence by nonexamining physicians and psychologists, and must address these opinions in their decisions. However, opinions by State agency consultants can be given weight "only insofar as they are supported by evidence in the case record." SSR 96-6p, 1996 WL 374180 at *2. In appropriate circumstances, opinions from nonexamining State agency medical or psychological consultants may be entitled to greater weight than the opinions of treating or examining sources.
Furthermore, as discussed above, it is beyond dispute that, in a social security disability case, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests."
A symptom is defined as "an individual's own description of his or her physical or mental impairment(s)." SSR 96-7p, 1996 WL 374186 at *2. "[T]he credibility of a claimant's statements about pain or other symptoms and their functional effects is the degree to which the statements can be believed and accepted as true.
First, the ALJ must consider whether there is a medically determinable physical or mental impairment that could reasonably be expected to produce the symptom alleged.
Second, the ALJ must evaluate the intensity and persistence of a claimant's symptoms, and determine the extent to which a claimant's symptoms limit the claimant's capacity for work. SSR 96-7p, 1996 WL 374186 at *2. "[W]henever the [claimant's] statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by medical evidence, the adjudicator must make a finding on the credibility of the [claimant's] statements based on a consideration of the entire case record."
20 C.F.R. §§404.1529(c) and 416.929(c) describe the kinds of evidence, and list several factors that must be considered in addition to the objective medical evidence when assessing the credibility of unsubstantiated symptoms or functional limitations, including: daily activities; statements about the location, duration, frequency, and intensity of the alleged symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms alleged; treatment other than medication the claimant receives or has received for symptoms relief; any measures the claimant uses or has used to relieve his or her symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. Additionally, the Commissioner's policy interpretation ruling on this issue provides additional factors to guide the ALJ's credibility assessment, including: the consistency of the claimant's statements both internally, and with the other information in the case record such as information provided by medical sources and statement made to treating and examining sources about his or her symptoms; any objective evidence demonstrating the effects the claimant's symptoms have on his or her ability to function; and, whether the longitudinal medical record shows that the claimant has made persistent attempts to obtain relief from his or her symptoms. SSR 96-7p, 1996 WL 374186.
In making a finding about the credibility of a claimant's statements, the ALJ need not totally accept or totally reject the claimant's statements.
Last, when faced with the task of reviewing an ALJ's findings based on the credibility of a claimant, it is important to be mindful of the fact that such determinations are to be accorded great weight and deference, since an ALJ is charged with the duty of observing a witness's demeanor and credibility.
In her written decision denying Cantelupe's claims, the ALJ found that Cantelupe met the insured status requirements of Title II of the Social Security Act through December 31, 2010. (Admin Tr. 22). At step one, the ALJ found that Cantelupe had not engaged in substantial gainful activity between his alleged onset date of December 23, 2006, and the date the ALJ issued her written decision. (Admin Tr. 22). At step two, the ALJ found that Cantelupe had the following medically determinable severe impairments: degenerative disc disease of the cervical and lumbar spine, degenerative joint disease of the bilateral knees, and status-post open reduction and internal fixation ("ORIF") of the femur of the right hip. (Admin Tr. 23). The ALJ also found that Cantelupe suffered from the following medically determinable non-severe impairments: meniscus tear of the left knee status-post arthroscopy, impaction fracture of posterolateral aspect of the head and neck of the humerus with no osseous abnormality, right shoulder subacromial impingement syndrome, and generalized anxiety disorder. (Admin Tr. 23). The ALJ also noted that although there is evidence of occasional alcohol use, there is insufficient evidence to establish that Cantelupe has a medically determinable substance use disorder.
Before proceeding to step four of the sequential evaluation process, the ALJ was required to assess Cantelupe's RFC based on her consideration of all of Cantelupe's symptoms and limitations to the extent to which they can be reasonably accepted as consistent with the objective medical and other evidence based on the requirements of 20 C.F.R. §§404.1529, 416.929, and SSRs 96-4p and 96-7p. In doing so the ALJ is also required to consider the opinion evidence of record in accordance with the requirements of 20 C.F.R. §§404.1527 and 416.927, and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. The ALJ found that Cantelupe had the RFC to engage in light work as defined in 20 C.F.R. §§404.1567(b) and 416.967(b) except that Cantelupe:
(Admin Tr. 24). In doing so, the ALJ accorded substantial weight to the April 2012 physical RFC assessment of State agency medical consultant Dr. Shanker Gupta ("Dr. Gupta"). (Admin Tr. 27). Dr. Gupta opined that Cantelupe could: occasionally lift or carry up to twenty pounds and frequently carry up to ten pounds; stand or walk up to six hours per eight-hour workday; sit approximately six hours per eight-hour workday; frequently climb stairs or ramps and balance; and, occasionally climb ladders or scaffolds, stoop, kneel, crouch, reach overhead, and crawl. (Admin Tr. 437-444). Dr. Gupta also opined that Cantelupe should avoid concentrated exposure to extreme cold and hazards.
At step four of the sequential evaluation process, the ALJ's findings were informed by VE Anderson's testimony. Specifically, VE Anderson testified that, based on the ALJ's findings of fact relating to Cantelupe's RFC assessment, such an individual could not engage in Cantelupe's past relevant work as a concrete finisher, warehouse worker, tire molder, or television installer as generally or actually performed because all of the positions exceed the exertional demands of light work. As such, the ALJ found in Cantelupe's favor at step four by concluding that Cantelupe could not engage in any of his past relevant work.
At step five of the sequential evaluation process, after making additional findings of fact relating to Cantelupe's age and level of education, the ALJ once again consulted VE Anderson. In response to a hypothetical question posed by the ALJ, VE Anderson testified that an individual with the same RFC and other vocational factors as Cantelupe could engage in "other work" that exists in the national economy. VE Anderson testified that such an individual could engage in work as an information clerk (Dictionary of Occupational Titles ("DOT") #237.367-018), cashier, entertainment industry (DOT #211.462-010), and potato chip sorter (DOT #526.687-010). The VE testified that these occupations exist in a total of approximately 395,000 jobs in the national economy. As such, the ALJ found that Cantelupe could engage in other work that exists in the national economy in significant number, and concluded that he was not disabled under the Social Security Act.
Cantelupe argues that the ALJ erred in her determination that he did not meet Listing 101.02 of 20 C.F.R Part 404, Subpart P, Appendix 1 (`the listing of impairments"). (Doc. 10 p. 4). Cantelupe also argues that the ALJ erred by failing to find Cantelupe "disabled" at step three of the sequential evaluation process. (Doc. 10 p. 7). Because these arguments are related we will address them together.
As an initial matter, we note that Listing 101.02 is in Part B of the listing of impairments. Part B of the listing of impairments contains criteria that apply only to individuals who are under the age of 18. 20 C.F.R. §§404.1525(b)(2), 416.925(b)(2). As of his alleged onset date, Cantelupe was forty-five years old. As such, Listing 101.02 does not apply to his case. In her reply, the Commissioner has identified the analogous Listing in Part A of the Listing of Impairments, and has construed Cantelupe's argument as if it were raised under Listing 1.02. (Doc. 11 p. 16).
Listing 1.02A relates to a major dysfunction of a joint, due to any cause, that is:
20 C.F.R. Part 404, Subpart P, Appendix 1 §1.02. Section 1.00 B2b defines the inability to ambulate as:
20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2b1. The regulation goes on to provide several examples of ineffective ambulation, including: the inability to walk without the use of a walker, two crutches or two canes; the inability to walk a block at a reasonable pace on rough or uneven surfaces; the inability to use standard public transportation; the inability to carry out routine ambulatory activities such as shopping and banking; and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. 20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2b2. In order to ambulate effectively "individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living," and "travel without companion assistance to and from a place of employment."
In her decision, the ALJ found that Cantelupe's impairments did not meet Listing 1.02 because:
(Admin Tr. 23).
Cantelupe contends that the ALJ erred when she concluded that there was no medical evidence that Cantelupe was unable to ambulate effectively. In response, the Commissioner asserts that the ALJ's determination that Cantelupe did not meet or equal Listing 1.02A is supported by substantial evidence.
We agree with the Commissioner that the ALJ's determination that the combination of Cantelupe's impairments did not prevent him from ambulating effectively as it is defined by 20 C.F.R. Part 404, Subpart P, Appendix 1 §1.00B2b is supported by substantial evidence. In her written decision, the ALJ noted that although Cantelupe walks with a cane, his cane only requires use of one hand. (Admin Tr. 23). He does not require a walker or two canes to ambulate,
Furthermore, because we find that the ALJ's determination that Cantelupe did not meet all of the criteria of Listing 1.02A is supported by substantial evidence, we also find that the ALJ did not err as a matter of law by failing to terminate her assessment at step three of the sequential evaluation process.
Next, Cantelupe attacks the sufficiency of the ALJ's RFC assessment. Specifically, Cantelupe asserts that the ALJ's evaluation of the medical opinion evidence of record was not in accordance with 20 C.F.R. §§404.1527 and 416.927. In doing so, Cantelupe asserts that "[t]he opinion of a medical source that has examined a claimant must be weighted more than a source who has not" and that treating medical sources "must be given greater, if not controlling weight under 20 C.F.R. 404.1527(c)(2)." (Doc. 10 p. 9). Cantelupe also pointed out that the ALJ erroneously concluded that "there are no opinions from a treating or examining source to suggest that the claimant's impairments preclude him from working activity," while ignoring a December 2, 2009 treatment note from Dr. Brescia's office recommending that Cantelupe remain off work. (Doc. 10 p. 11) (
As an initial matter, we note that Cantelupe's argument and the Commissioner's response appear to be premised upon a misunderstanding of the regulations governing the evaluation of medical opinion evidence. Contrary to Cantelupe's assertions, 20 C.F.R. §§404.1527(c)(1) and 416.927(c)(1) provide that "[g]enerally, [the adjudicator will] give more weight to the opinion of a source who has examined [the claimant]." Similarly, 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2) provide that "[g]enerally, [the adjudicator will] give more weight to the opinions from [the claimant's] treating sources." Neither of these regulations mandate that in all cases the opinion of a treating source must be given greater weight than an opinion by a State agency consultant. In fact, in SSR 96-6p, the Commissioner clarified that, "[i]n appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating and examining sources." 1996 WL 374180 at *3.
Moreover, although the Commissioner is correct that a statement made by a medical source that a claimant is "unable to work" is not a medical opinion as described in 20 C.F.R. §§404.1527(a)(2), and 416.927(a)(2), such opinions must never be ignored. 20 C.F.R. §§404.1527(d), 416.927(d).
A statement that a claimant is unable to work is never entitled to controlling weight because to do so would confer upon the medical source the authority to make the determination or decision about whether a claimant is disabled and would be an abdication of the Commissioner's statutory responsibility. 20 C.F.R. §§404.1527(d)(3), 416.927(d)(3); SSR 96-5p, 1996 WL 374183 at *3. In evaluating medical opinions on issues reserved to the Commissioner, the ALJ should apply the factors outlined in 20 C.F.R. §§404.1527(c) and 416.927(c).
Even if we were to conclude that the December 2, 2009 treatment recommendation constitutes a treating medical source opinion, remand would not be warranted for further consideration of the opinion.
Here, we must determine whether the ALJ erred by failing to discuss a one-time recommendation in an unsigned treatment note from Dr. Brescia's office, that Cantelupe should "remain off work." Like the GAF score in Gilroy, there is no explanation as to how or why the clinician recommended that Cantelupe remain off work on December 2, 2009. The recommendation does not specify how long Cantelupe should remain off work, cite to any objective evidence that forms the basis of the recommendation, explain why Cantelupe should remain off work, or discuss the nature of the work Cantelupe should discontinue.
Next, Cantelupe argues that the ALJ's RFC assessment that he could engage in a range of light work is not supported by substantial evidence because the ALJ failed to consider all of the relevant evidence and failed to account for all of Cantelupe's credibly established limitations. Specifically, Cantelupe alleges that the ALJ failed to consider evidence suggesting that he was more physically limited than the ALJ's RFC assessment reflects, and erroneously found that the record did not support a finding that Cantelupe's pain and medication side effects would result in him being off-task approximately fifteen percent of each workday.
First Cantelupe alleges that the ALJ failed to consider numerous pieces of evidence demonstrating that he is more physically limited than found by the ALJ. We construe this as an argument that the ALJ failed in her obligation to consider "all the relevant evidence" in Cantelupe's case record when making an RFC assessment pursuant to 20 C.F.R. §§404.1545(a) and 416.945(a). The evidence that Cantelupe cites in support of his argument includes: Cantelupe's own statements in a November 2011 Function Report, (Admin Tr. 284); one page of notes from Dr. Brescia's office that summarizes four examinations between October 2007 and July 2008, (Admin Tr. 357); treatment notes from examinations dated March 1, 2012, November 14, 2012, and August 16, 2012, signed by Dr. Nasuti at Family Care Silver Spring, (Admin Tr. 457, 468, 471); and treatment notes from an examination dated March 4, 2013, signed by Dr. Sandra Fowler, (Admin Tr. 463-66). We find that this argument lacks merit. Our own review of the ALJ's decision reveals that, contrary to Cantelupe's assertions, the ALJ's decision does reflect that she considered the above-cited evidence. She expressly noted that "[o]n his disability paperwork [Cantelupe] indicated that his limitations include walking, standing, operating equipment, lifting, crawling, and lifting objects above the head," and affected his ability to "squat, stand, reach, walk kneel, sit, climb stairs, use his hands, follow instructions, concentrate and complete tasks." (Admin Tr. 24). Furthermore, although she did not mention the individual medical sources by name, the ALJ cited to each of the treatment notes that Cantelupe argues that she failed to consider. Accordingly, we find that Cantelupe's argument that the ALJ failed to consider all of the relevant evidence of record lacks merit.
Next Cantelupe argues that the ALJ failed to account for all of his credibly established limitations. As an initial matter, the Commissioner's regulations and the Third Circuit, have established some guidelines as to when a limitation is credibly established. In
399 F.3d at 554.
With this framework in mind, we turn to a consideration of the particular limitation that Cantelupe claims were improperly disregarded by the ALJ. Cantelupe alleges that the ALJ's determination that the record did not support a finding that Cantelupe's pain would result in being off-task 15% of the workday is not supported by substantial evidence. He asserts that the ALJ failed to account for Cantelupe's testimony that his prescribed duragesic patches induce a euphoric state for six to eight hours after their initial application, and impair Cantelupe's concentration. The parties do not dispute that the ALJ did not include a provision that Cantelupe would be limited to a position that would allow him to be off-task 15% of each workday in his RFC assessment, and, although this limitation was conveyed to VE Anderson, (
In her decision, the ALJ found that:
(Admin Tr. 27). In reaching this determination, the ALJ expressly discussed Cantelupe's testimony about the severity of his medication side effects (Admin Tr. 25) (noting that Cantelupe "testified that for the first 6-8 hours of using the patch, he experiences a euphoric feeling and is unable to concentrate."). Furthermore, the ALJ accurately noted Cantelupe denied any difficulty concentrating in recent medical records while he was prescribed the 50mcg duragesic patches. (
Accordingly, we find that Cantelupe's arguments that the ALJ failed to consider certain medical records, and failed to account for Cantelupe's medication side effects, lack merit.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED and that Cantelupe's request for the award of benefits be DENIED. We also recommend that remand for a new administrative hearing would not be appropriate in this case.
Notice is hereby given that the undersigned has entered the foregoing Report and Recommendation dated December 17, 2015. Any party may obtain a review of this Report and Recommendation pursuant to Local Rule 72.3, which provides:
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
