KAROLINE MEHALCHICK, Magistrate Judge.
This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (hereinafter, "the Commissioner") denying Plaintiff Jodi Lynn Hoke's ("Hoke") claim for disability and disability insurance benefits ("DIB") under Title II of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation 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, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be
On July 10, 2014, Hoke filed an application for Title II benefits alleging her onset date of disability as August 7, 2013. (Tr. 36; doc. 8-2 p. 37). The Social Security Administration initially denied Hoke's claims on September 22, 2014. Id. As a result of this denial, Hoke filed a request for a hearing before an Administrative Law Judge ("ALJ") on October 9, 2014, and it was subsequently granted. Id. Hoke appeared and testified, with the assistance of counsel, at a hearing held on June 15, 2016, before ALJ Paula Garrety. (Tr. 73; doc. 8-2 p. 74). Also appearing and testifying at the hearing was vocational expert ("VE") Carmine Abraham. Id.
In a written opinion dated July 25, 2016, the ALJ determined that Hoke was not disabled and therefore not entitled to the benefits sought. (Tr. 44; doc. 8-2 p. 45). Hoke appealed the decision of the ALJ to the Appeals Council of the Office of Disability Adjudication and Review (the "Appeals Council"), who, on December 15, 2017, denied Hoke's request for review. (Tr. 1; doc. 8-2 p. 2). On February 15, 2018, Hoke filed the instant action. (Doc. 1). On May 4, 2018, the Commissioner filed her answer and provided the requisite transcripts from the disability proceedings. (Doc. 7; doc. 8). The parties then filed their respective briefs (doc. 9; doc. 10), with Hoke alleging that two errors warranted reversal or remand. (Doc. 9 p. 3).
In her disability benefits application, Hoke listed fibromyalgia, arthritis, and hyperthyroidism/Grave's disease as impairments limiting her ability to work. (Tr. 166; doc. 8-6 p. 37). The record indicates that Hoke has been treating with rheumatologist Dr. David Trostle ("Dr. Trostle") since at least August 10, 2012, for joint pain due to generalized osteoarthritis. (Tr. 253; doc. 8-7 p. 51). During this appointment, Dr. Trostle also determined that Hoke had 18 out of 18 positive fibromyalgia tender points and noted that Hoke had mild tenderness in the parathoracic and paralumbar regions. Id. During Hoke's follow-up appointment for her fibromyalgia and generalized osteoarthritis on December 14, 2012, Dr. Trostle found that Hoke had a mild loss of motion in her shoulders and her neck. (Tr. 259; doc. 8-7 p. 57). Due to this loss of motion, Dr. Trostle ordered x-rays for Hoke's shoulders and cervical spine. (Tr. 259, 261, 262; doc. 8-7 pp. 57, 59, 60). The x-ray of Hoke's bilateral shoulders revealed mild bilateral degenerative arthritis at Hoke's arcromion and left acromioclavicular joint and signs of chronic peritendinitis on Hoke's right. (Tr. 261; doc. 8-7 p. 59). The x-ray of Hoke's cervical spine revealed moderate spondylosis at C-5, mild to moderate spondylosis at C5-6, "mild spondylosis noted elsewhere," and evidence of muscle spasm. (Tr. 262; doc. 8-7 p. 60).
On March 20, 2013, Dr. Trostle found that Hoke had tenderness "in the medial joint lines of both knees" and that she had crepitus in both knees. (Tr. 264; doc. 8-7 p. 62). As a result of this observation, Dr. Trostle ordered x-rays of Hoke's knees, id., which revealed mild to moderate degenerative arthritis in Hoke's left knee, "with possible loose body present" and mild degenerative arthritis in her right knee. (Tr. 266; doc. 8-7 p. 64). On July 24, 2013, Hoke underwent an x-ray of her lumbosacral spine, pelvis, and thoracic spine, which revealed mild lumbar spondylosis, (tr. 271; doc. 8-7 p. 69), mild to moderate thoracic spondylosis, osteopenia, and moderate lower cervical spondylosis. (Tr. 272; doc. 8-7 p. 70). On September 26, 2013, Hoke underwent an MRI of her cervical spine that revealed mild broad-based posterior disc protrusion with osteophytosis at C6-C7, resulting in mild canal narrowing; mild broad-based annular bulging with mild canal narrowing at C5-C6; no evidence of neural impression; "no other evidence of frank cervical disc herniation, high-grade canal stenosis or acute marrow signal abnormality;" and an unremarkable appearance of Hoke's spinal cord. (Tr. 282-283; doc. 8-7 pp. 80-81).
An ultrasound of Hoke's thyroid dated October 15, 2013, and a thyroid scan dated October 28, 2013, showed that Hoke had a mildly enlarged thyroid gland. (Tr. 213, 217; doc. 8-7 pp. 11, 15). Upon review of Hoke's ultrasound and thyroid scan, Dr. Ronnie A. Mohammed ("Dr. Mohammed") assessed Hoke with subclinical hyperthyroidism, with a low TSH but normal thyroid hormone levels, and autoimmune thyroid disease. (Tr. 292; doc. 8-7 p. 90).
During Hoke's appointment on March 26, 2014, Dr. Trostle found that Hoke had spasms and pain with movement of the neck and back; crepitus in her neck and knees; tenderness in her medial joint lines of both knees; hypertrophic degenerative changes in the hands; mild to moderate loss of grip strength; and tenderness in her trochanteric bursas. (Tr. 297; doc. 8-7 p. 95). During this appointment, Dr. Trostle opined that he does not believe with Hoke's osteoarthritis in her knees and neck, that she can perform a job where she is standing for long periods of time, and that her pain from her fibromyalgia precludes her from working on a regular basis. (Tr. 298; doc. 8-7 p. 96). Dr. Trostle further opined that he believed that if Hoke did try to enter the workforce again, she would probably miss six to seven days of work a month. Id.
The only other medical opinion in the record is that of state reviewing medical consultant Dr. Candelaria Legaspi ("Dr. Legaspi"), who found on August 29, 2014, that Hoke can frequently lift/carry up to 20 pounds; can occasionally lift/carry up to ten pounds; can stand, sit, and walk for about six of the eight hours in a workday; is unlimited in her ability to push/pull as long as it is within her lift/carry limitations; and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. (Tr. 93-94; doc. 8-3 pp. 6-7).
The record also demonstrates that Hoke has regularly treated with her primary care physician, Dr. Stanley J. Gorski ("Dr. Gorski") for her hyperlipidemia, anemia, hypertension, osteoarthritis, and fibromyalgia. (Tr. 322-351, 467-517; doc. 8-8 pp.16-45; doc. 8-10 pp. 5-55). Notably, Dr. Gorski documented on June 6, 2014, that Hoke rated her fibromyalgia as so severe that she has difficulty with activities of daily living such as climbing stairs and showering. (Tr. 338; doc. 8-8 p. 32). He also noted on September 22, 2014, that Hoke reported her fibromyalgia symptoms significantly worsen if she misses her doses of Effexor, Tylenol, or Relafen, (tr. 328, doc. 8-8 p. 22), and that on April 13, 2015, Hoke reported she has generalized, daily joint pain that makes it hard for her to empty the dishwasher, and she cannot stand or sit for long periods of time. (Tr. 471; doc. 8-10 p. 9). Dr. Gorski further noted on April 13, 2015, that blood test results showed Hoke has hepatitis C. Id. On October 27, 2015, Dr. Gorski reported that "overall [Hoke's] symptoms have improved on current medicine." (Tr. 496; doc. 8-10 p. 34).
On November 5, 2014, Hoke underwent an MRI of her lumbar spine that showed "very slightly progressive minimal multilevel" mid-lumbar degenerative disc disease; no well-defined focal disc protrusions; minimal L3-L4 level disc bulging; mild to moderate multi-level "mid-distal lumbar spondylosis/osteoarthritic changes without evidence of central canal stenosis;" and interval chronic disc bulging at T11-T12. (Tr. 466; doc. 8-10 p. 4). On December 1, 2015, Hoke had an x-ray of her bilateral weightbearing knees, her right ankle, her right shoulder, and her cervical spine. (Tr. 504-507; doc. 8-10 pp. 42-45). These x-rays revealed that Hoke had moderate bilateral degenerative arthritis of her knees; very mild degenerative arthritis at her right ankle, with mild degenerative changes in the midfoot; mild degenerative arthritis of the right shoulder, with signs of chronic peritendinitis at the greater tuberosity; and mild to moderate cervical spondylosis. (Tr. 504-507; doc. 8-10 pp. 42-45). On March 8, 2016, she had an x-ray of her lumbosacral spine and an x-ray of her pelvis, which revealed moderate spondylosis at L3-4; "mild to moderate spondylosis noted elsewhere;" the presence of osteopenia; lower thoracic spondylosis; chronic peritendinitis of the hips; and mild degenerative arthritis of the right hip. (Tr. 459-460; doc. 8-9 pp. 81-82).
At her last documented appointment with Dr. Trostle on March 6, 2016, Hoke reported that her pain in her neck, back, and shoulders was a six out of ten in severity. As of her last documented appointment with Dr. Gorski on May 11, 2016, Dr. Gorski noted that Hoke continues to have fatigue, difficulty performing simple activities of daily living, chronic pain in her neck, shoulders, bilateral hips, and lower legs, but that she still walks with a normal gait. (Tr. 513, 515; doc. 8-10 pp. 51, 53). He also noted that Hoke reported having paresthesia in her hands when she wakes up and having trouble driving long distances. Id.
In order to receive benefits under Title II of the Social Security Act, 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). 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 significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
In evaluating whether a claimant is disabled as defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity ("RFC"); and (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R. § 404.1512(a). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f).
In reviewing the Commissioner's final decision denying a claimant's application for benefits, the Court's review is limited to determining whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference); 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) (internal quotations omitted). 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). In an adequately developed factual record, however, 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that the claimant 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."); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'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 v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012) ("[T]he court has plenary review of all legal issues decided by the Commissioner.").
In a decision dated July 25, 2016, the ALJ determined that Hoke "has not been under a disability, as defined in the Social Security Act, from August 7, 2013, through the date of this decision." (Tr. 43; doc. 8-2 p. 44). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. § 404.1520.
At step one, an ALJ must determine whether the claimant is engaging in substantial gainful activity ("SGA"). 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in SGA, the regulations deem them not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). SGA is defined as work activity—requiring significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574(a)(2). The ALJ determined Hoke "has not engaged in [SGA] since August 7, 2013, the alleged onset date." (Tr. 38; doc. 8-2 p. 39). Thus, the ALJ's analysis proceeded to step two.
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have a severe impairment and [is], therefore, not disabled." 20 C.F.R. § 404.1520(c). If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step.
The ALJ found that Hoke has the severe impairments of: "degenerative disc disease of the lumbar spine; degenerative disc disease of the cervical spine; fibromyalgia; and degenerative joint disease of the bilateral knees." (Tr. 38; doc. 8-2 p. 29). The ALJ also found that Hoke had the non-severe impairments of high cholesterol, mild bilateral degenerative arthritis of the shoulders, "very mild" degenerative arthritis of the right ankle, mild degenerative arthritis of the right hip, chronic peritendinitis of the hips, irritable bowel syndrome ("IBS"), and hyperthyroidism. Id.
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Here the ALJ determined that none of Hoke's impairments, considered individually or in combination, meet or equal a Listing. (Tr. 39; doc. 8-2 p. 40). Specifically, the ALJ considered Listings 1.02 (major dysfunction of a joint due to any cause); and 1.04 (disorders of the spine). (Tr. 39; doc. 8-2 p. 40).
Between steps three and four, the ALJ determines the claimant's residual functional capacity ("RFC"), crafted upon consideration of the medical evidence provided. The ALJ determined that Hoke "has the [RFC] to perform a full range of light work as defined in 20 C.F.R. [§] 404.1567(b)." Id.
Having assessed the claimant's RFC, at step four, the ALJ must determine whether the claimant has the RFC to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is defined as work the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b). If the claimant cannot perform past relevant work or has no past relevant work, then the analysis proceeds to the fifth step. The ALJ determined that Hoke is capable of performing her past relevant work as a daycare worker, a counter attendant, a cashier, and a hostess. (Tr. 42; doc. 8-2 p. 43). Though the ALJ found that Hoke can perform her past relevant work, the ALJ proceeded to make alternative findings at step five.
At step five of the sequential analysis process, an ALJ considers the claimant's age, education, and work experience to see if a claimant can make the adjustment to other work.
The ALJ determined based on Hoke's age, education, work experience, and RFC, that there are jobs that exist in significant numbers in the national economy that Hoke can perform. (Tr. 43; doc. 8-2 p. 44). In making this determination, the ALJ relied solely on the Medical-Vocational Guidelines (the "grids") in Appendix 2 to subpart P of Part 404 of the Social Security Act and determined that Hoke is not disabled per Medical-Vocational Rule 202.21. Id. As a result of the foregoing analysis, the ALJ determined that Hoke is not disabled and denied Hoke's application for benefits. Id.
Hoke advances two main arguments on appeal. First, she asserts that the ALJ improperly followed the five-step sequential evaluation process because the ALJ did not ask the VE whether Hoke can perform her past relevant work or if there are other jobs in the national economy that Hoke can perform. (Doc. 9 p. 3). Second, Hoke asserts that the ALJ's decision is not supported by substantial evidence because there is strong evidence of record contrary to the ALJ's decision. Id. at 4. In response, the Commissioner maintains that the ALJ's decision is supported by substantial evidence and is in accordance with the law and regulations. (Doc. 7 p. 2).
Hoke asserts that the ALJ improperly followed the five-step sequential evaluation process because the ALJ did not ask the VE whether Hoke could perform her past relevant work or other jobs in the national economy. (Doc. 9 p. 3). Hoke argues that because of this failure "it is unclear whether [Hoke] would or would not be able to perform her past relevant work." Id. at 4. Hoke further argues that the ALJ's findings are erroneous because the ALJ incorrectly stated in her decision that the VE testified that Hoke is capable of performing her past relevant work, when in fact, the VE never did. Id. at 3. In response, the Commissioner submits that the ALJ reasonably concluded that Hoke can perform her past relevant work and that there are no grounds for remand. (Doc. 10 pp. 1-2).
Under 20 C.F.R. § 404.1520, at step four, the ALJ is supposed to compare the RFC assessment with the physical and mental demands of a claimant's past relevant work, and if the claimant can still do this work, the claimant will not be found disabled. 20 C.F.R. § 404.1520(f). The regulations explain that an ALJ "may use the services of vocational experts . . . to obtain evidence [the ALJ] need[s] to help [the ALJ] determine whether [a claimant] can do [his or her] past relevant work" and a "vocational expert or specialist may offer expert opinion testimony in response to a hypothetical question." 404.1560(b)(2) (emphasis added). This permissive language indicates that the ALJ does not necessarily have to present hypotheticals or take testimony from a vocational expert in order to determine whether there are jobs in the national economy that a claimant can perform. Indeed, the U.S. Supreme Court in Heckler v. Campbell, 461 U.S. 458 (1983), instructs that the grids "relieve the [Commissioner] of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy." 461 U.S. at 461. This concept is applied in the context where a claimant has only exertional limitations.
Here, ALJ's RFC assessment that Hoke can perform a full range of light work is supported by substantial evidence.
The ALJ's alternative findings at step five under Medical-Vocational Rule 202.21 demonstrate that the ALJ's ultimate determination that Hoke is not disabled is supported by substantial evidence because meeting a Medical-Vocational Rule implies that there are a significant number of jobs that exist in the national economy that Hoke can perform. Such a conclusion under the grids implies that there are jobs that exist which Hoke can perform because:
With regard to light work, the Administration has determined that "approximately 1,600 separate sedentary and light unskilled occupations can be identified in eight broad occupational categories, each occupation representing numerous jobs in the national economy." 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.00(a). Thus, regardless of whether Hoke can perform her past relevant work, the ALJ demonstrated that Hoke is not disabled and that there are jobs that exist in that national economy which Hoke can perform. Therefore, the Court finds that the ALJ's decision is supported by substantial evidence and that there is no cause for remand on this ground.
Next, Hoke asserts that the ALJ's decision is not supported by substantial evidence because there is strong evidence supporting a finding of disability. (Doc. 9 p. 4). The evidence to which Hoke points is a letter from Dr. Trostle, which was submitted to the Appeals Council after the ALJ's decision. This argument falls flat because there are a limited number of options open to the District Court once the Appeals Council has denied a Social Security case. The District Court may affirm, modify, 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). Mathews 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. Hoke does not attempt to demonstrate the above stated factors with regard to Dr. Trostle's letter; therefore, her argument fails.
Based on the foregoing, it is recommended that the Commissioner's decision be
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
