JOSEPH F. SAPORITO, JR., Magistrate Judge.
The plaintiff, Stephen Carl Nigro brought this action 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act (the "Act").
This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be
Nigro is an adult individual born December 19, 1967. Nigro was forty-five years old at the time of the alleged onset of disability—September 15, 2013. (Tr. 44). Nigro's age at the onset date makes him a "younger person" under the Commissioner's regulations whose age generally does not affect his ability to adjust to other work. See 20 C.F.R. § 404.1563.
On October 23, 2014, Nigro protectively filed an application for benefits under Title II of the Social Security Act alleging disability as of September 15, 2013. In his application, Nigro alleged that the following impairments prevent him from engaging in any work: degenerative disc disease (back), osteoarthritis, whiplash, migraine headaches, basal headaches, insomnia, and sciatica. (Tr. 120).
Nigro's claim was initially denied on February 2, 2015. Thereafter, he filed a timely request for an administrative hearing. His request was granted. Nigro appeared in Harrisburg, Pennsylvania, on March 2, 2017, at a hearing before Administrative Law Judge ("ALJ") Susan L. Torres. Nigro was represented by Steve Mahan, Esquire. In addition, impartial vocational expert ("VE") Brian Bierley appeared at the hearing.
On June 1, 2017, the ALJ denied Nigro's application for benefits in a written decision. On August 30, 2017, Nigro sought further review of his claims by the Appeals Council of the Office of Disability Adjudication and Review, but his request was denied on September 12, 2018. This makes the ALJ's June 2017 decision the final decision subject to judicial review by this Court.
Nigro filed a timely complaint in this Court on November 8, 2018. (Doc. 1). In his complaint, Nigro alleges that the final decision of the Commissioner is not supported by substantial evidence.
On January 28, 2019, the Commissioner filed an answer, which maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 4).
This matter has been fully briefed by the parties and is ripe for decision. (Docs. 6, 7).
At the time of the administrative hearing, Nigro was forty-nine years old and resided in Mechanicsburg, Pennsylvania, which is in the Middle District of Pennsylvania. Nigro resided with his wife, and two children ages, 17 and 22. (Tr. 28). Nigro stated that he quit working because of his migraines. (Tr. 12).
Nigro stated that his wife owns her own cleaning business and he joined her in the business in 2001, after being in warehousing for a long time. (Tr. 13). Nigro contends that he was able to adjust his schedule and take time off to deal with the migraines because he was working for his wife. (Tr. 16).
Nigro stated that he has suffered with migraines since high school. He describes his migraines as starting in the back of his neck, then the pain radiates to the front of his head making everything sensitive. He then has to go into a dark room and lay down. He contends that lights sometimes trigger a migraine. (Tr. 14). He stated that he gets approximately 13 severe migraines a month, and they can last anywhere from five hours to a couple of days. He takes Imitrex and over-the-counter Excedrin Migraine. He contends that sometimes the medications reduce pain and sometimes they do nothing for the pain. (Tr. 15).
Nigro stated that he experiences lower back pain and upper neck pain. He stated that he gets shooting pain down the right side of his leg that sometimes causes him to drop to the ground. He takes Flexeril and Percocet for the pain. He experiences pain going up his back into his neck, which then causes a migraine. He stated that, at times, turning the wrong way or bending down and getting up can trigger this pain. (Tr. 18).
Nigro possesses a driver's license and is able to drive while taking his medications. (Tr. 19). He stated that if he begins to experience the feeling of a migraine while driving, he pulls over. (Tr. 28).
Nigro stated that he helps with the cooking at home, and mows the lawn with a riding mower. (Tr. 29). He describes a typical day as follows: he wakes up, picks up stuff around the house, makes lunch, and watches television. If he experiences a migraine, then he lays down in a dark room. (Tr. 29).
In addition to the above listed medications, Nigro stated that he takes gabapentin for nerve damage from shingles and pantoprazole for GERD. He contends that when he takes Flexeril and gabapentin together, they make him tired. (Tr. 20).
Nigro stated that he goes to Pennsylvania Psych Institute for counseling for depression/anxiety every three months and takes lorazepam for his depression. He also goes to Pennsylvania Counseling Services every two weeks for individual counseling. (Tr. 27).
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); 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 (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). 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or 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 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 [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, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
To receive disability benefits, 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); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 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;
In her June 1, 2017, decision denying Nigro's claim, the ALJ evaluated Nigro's application for benefits at each step of the sequential process. At step one, the ALJ found that Nigro had engaged in substantial gainful activity during the period of 2015. However, there had been a continuous 12-month period(s) during which Nigro did not engage in substantial gainful activity. (Tr. 46). At step two, the ALJ found the following impairments were medically determinable and severe during the relevant period: cervical disc disease, lumbar disc disease, arthritis of the hands, migraines, depression, anxiety, and obstructive sleep apnea. (Tr. 47). At step three, the ALJ found that Nigro 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, during the relevant period. (Tr. 47). In addition, the ALJ found that Nigro's mental impairments were severe. Between steps three and four, the ALJ assessed Nigro's RFC. After evaluating the relevant evidence of record, the ALJ found that Nigro had the RFC to perform light work as defined in 20 C.F.R. 404.1567(a), except for the following:
(Tr. 48).
The ALJ's conclusions at steps four and five of the sequential evaluation process were based on the RFC assessment and the VE's testimony. At step four, the ALJ found that Nigro was able to perform his past relevant work as defined in 20 C.F.R. § 404.1565. Nigro's past relevant work as a cleaner does not exceed the performance of work-related activities precluded by his residual functional capacity. (Tr. 51). Because the ALJ determined that Nigro could perform his past relevant work, the ALJ did not proceed to step five. Ultimately, the ALJ determined that Nigro is not disabled under the Social Security Act. (Id.)
Nigro contends the decision of the Commissioner is not supported by substantial evidence and contains errors of law, and requests remand in this matter for further findings by an ALJ or, in the alternative, he be awarded retroactive benefits commencing September 15, 2013. (Doc. 1, at 5). Specifically, Nigro argues two issues:
One of the principal contested issues in this setting relates to Nigro's allegation that the ALJ erred when she made a determination, which lacked the required reasoning, that Nigro's impairment or combination of impairments did not meet or equal one of the Listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Specifically, Nigro contends the he suffers from debilitating migraines thirteen or more times per month. He contends that these migraines render him unable to function for a minimum of five hours and can last up to two days at a time. He specifically argues that his inability to function, at least thirteen times per month for a minimum of five hours at a time, meets or medically equals listing level severity of Section 11.00 of 20 C.F.R. Part 404, Subpart P, Appendix 1, and that the ALJ should have ended her evaluation at step three of the five step process.
Although Nigro argues in his brief that the ALJ erred, he failed to argue which criteria of which listing in Section 11.00 he purports meets or medically equals a listing impairment. He did not explain his basis for his belief that his impairment supported a specific criteria of the listing 11.00. He only argued that he met the requirements of Section 11.00 when the entire record and testimony is taken into consideration, but never specified the criteria or specific part of the record.
The ALJ assessed the entire record and found that Nigro's migraines fail to meet or medically equal Listing 11.00 of Appendix 1 impairments. For Listing 11.00, the ALJ found that the medical records fail to: (1) establish evidence of any neurological deficits; (2) demonstrate evidence of epilepsy or epileptic seizures (11.02 and 11.03); (3) demonstrate a central nervous system vascular accident (11.04); (4) a benign brain tumor (11.05); Parkinson's syndrome (11.06); cerebral palsy (11.07); spinal cord or nerve root lesions (11.08); multiple sclerosis (11.09); amyotrophic lateral sclerosis (11.10); anterior poliomyelitis (11.11); myasthenia gravis (11.12); muscular dystrophy (11.13); peripheral neuropathies (11.14); subacute combined cord degeneration (11.15); a degenerative disease not listed elsewhere with disorganization or motor functions as described in 11.04B (11.17a); chronic brain syndrome (11.17b); cerebral trauma (11.18); or syringomyelia (11.19).
The ALJ assessed Nigro's RFC above and concluded that he was able to perform his past relevant work as a cleaner, which was considered unskilled light work as generally performed. (Tr. 32, 51).
The responsibility of crafting the RFC assessment is solely on the ALJ. 20 C.F.R. § 404.1527(d)(2); Soc. Sec. Ruling 96-5p (an individual's RFC is not a "medical issue regarding the nature and severity of an individual's impairment(s) but [is an] administrative finding"); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (stating that "the ALJ, not treating or examining physicians or State agency consultants, must make the ultimate disability and RFC determinations"); see also 20 C.F.R. §§ 404.1545(a)(3), 404.1546. "[T]here is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 Fed. App'x 6, 11 (3d Cir. 2006). "[T]he ALJ is responsible for making a residual functional capacity determination based on the medical evidence, and he is not required to seek a separate expert medical opinion." Mays v. Barnhart, 78 Fed. App'x 808, 813 (3d Cir. 2003).
Under the regulations, it is the ALJ who has the exclusive responsibility for making an RFC determination "based on the medical evidence, and she is not required to seek a separate expert medical opinion." Mays v. Barnhart, 78 Fed. App'x 808, 813 (3d Cir. 2003). The ALJ-not treating or examining physicians or state agency consultants-must make the ultimate disability and RFC determinations. Chandler, 667 F.3d at 361.
Nigro's medical records show that he was being treating by Charles L. Lowe, M.D., from October 2012 through December 2016. (Tr. 295-315, 394-526). Records of Dr. Lowe show that at an appointment on October 24, 2012, Dr. Lowe noted that Nigro stated that his migraines are severe, and symptoms are recurring, which include nausea, photophobia, and visual aura, the frequency is 10 times per month. (Tr. 501). Dr. Lowe instructed Nigro to take his medications as directed and avoid aggravating foods with regard to his migraine headaches. (Tr. 504).
On November 28, 2012, and January 25, 2013, Nigro presented with palpitations. (Tr. 506, 508). On August 22, 2013, Nigro presented with migraines. Dr. Lowe noted that the migraines are improving, and headache timing includes no pattern. The symptoms are associated with recent head trauma, but relieved by prescription medications. Nigro stated that he gets 10 migraines a month and his insomnia does not help with this, although the prescription medication is effective. He noted that Nigro stated that sometimes eggs trigger his headaches. His symptoms include nausea, but negative for blurred vision, dizziness, loss of vision or vomiting. Nigro was instructed by Dr. Lowe to take his medications as directed. (Tr. 511-12). (Tr. 298-99, duplicate records). Nigro was instructed to follow up in one month.
Nigro did not return to Dr. Lowe until November 4, 2013, when he returned with complaints of cough, back pain, and headaches. (Tr. 301,514, duplicate records). Dr. Lowe noted that the headaches are intermittent, and that Nigro is getting 8-9 headaches per month which are relieved by Immitrex. (Tr. 301, 514, duplicate records).
On January 24, 2014, Nigro presented with a cough and back pain. Dr. Lowe noted the history of migraines. (Tr. 304, 517, duplicate records).
On January 12, 2014, Nigro was seen in the emergency room where he complained of a cough and shortness of breath. Nigro reported a migraine headache, and he was diagnosed with bronchitis. (Tr. 267).
Eight months later on August 22, 2014, Nigro sought treatment again and he complained of headaches "intermittently" but it was noted that the problem was resolved with prescription drugs. (Tr. 308, 521).
On October 6, 2014, Dr. Lowe noted that Nigro's onset of migraines began 25 years ago and they occur intermittently for approximately (3) three hours, and three (3) times a week. Nigro described the pain as pressure and throbbing on his entire head and radiation to his neck. His symptoms include visual aura, and relief was given by Immitrex. (Tr. 525). Dr. Lowe's assessment of the migraines was to take medications as directed and he referred Nigro to a neurologist. (Tr. 314).
On December 10, 2014, Nigro returned to Dr. Lowe to discuss his MRI results. Nigro's history of present illness did not include migraines. (Tr. 396-99). On March 18, 2015, Nigro presented with back/abdominal pain. His history of present illnesses did not include migraines. (Tr. 400). On April 17, 2015, Nigro presented with musculoskeletal/abdominal pain. (Tr. 404). His history of present illness did not include migraines. On October 29, 2015, Nigro presented with leg pain, and Lyme disease. (Tr. 32-34). On April 20, 2016, Nigro returned for a follow-up examination for shingles and hypertension. (Tr. 452-54). On June 9, 2016, Nigro returned for a follow-up for his shingles and requested paperwork be completed for disability. Nigro reported getting migraines since the age of 16 for which he took Immitrex and experienced nausea, but no vomiting. (Tr. 61). Dr. Lowe diagnosed Nigro with migraine with aura and without status migrainosus, not intractable for which he again referred Nigro to a neurologist. (Tr. 464).
On June 9, 2016, Dr. Lowe completed a medical source statement for Nigro for the Pennsylvania Department of Public Welfare wherein he indicated that Nigro was incapable of performing even sedentary work because of low back pain and hand stiffness. (Tr. 223-28). Dr. Lowe never mentioned that Nigro was unable to work due to migraines. On December 14, 2016, Nigro returned for a follow-up wherein Dr. Lowe noted the history of migraine headaches. (Tr. 471).
In a correspondence dated March 18, 2016, Sowmya Surapaneni, M.D., a rheumatologist, reported that at an appointment with Nigro on March 6, 2016, Nigro admitted to having migraines on and off. (Tr. 363).
Nigro testified at his hearing that he experiences vomiting with headaches, but in a statement to his physician, he stated that he only experienced nausea, never vomiting. (Tr. 21). Nigro takes Immitex, Percocet, and over-the-counter Excedrin Migraine for his migraine headaches. (Tr. 15). Nigro testified that he was referred to a neurologist for migraine headaches but had to cancel the appointment due to a migraine. (Tr. 25, 314).
Based on the evidence of record, relying mostly on the notes of Nigro's treating physician, and taking into account Nigro's own admissions regarding his headaches, the ALJ concluded that Nigro exaggerated his subjective complaints of headaches, especially as to the frequency and duration of his headaches.
The ALJ pointed out the contrasting evidence of record of Nigro's own treating physician who indicated that his headaches are not "intractable" and Nigro's testimony that his headaches only sometimes responded to medication. (Tr. 15). In addition, repeatedly in Dr. Lowe's notes, Nigro admitted that his headaches were "relieved" by medications. (Tr. 298, 301, 308, 312). Nigro admitted to Dr. Lowe that the headaches were only "intermittent" on several occasions. (Tr. 298, 301, 308, 312, 461, 471). It is reasonable to question Nigro's stated frequency and duration of his headaches in that he did not follow-up with a neurologist as Dr. Lowe suggested. (Tr. 314, 464).
Upon review of the record, we find that the ALJ properly evaluated the medical evidence of record along with thoroughly reviewing the medical record notes of Dr. Lowe, and we agree with the ALJ that there is no evidence to support listing 11.00, and Nigro clearly failed to meet his burden at step three of the sequential process.
Next, Nigro contends that the ALJ was required to accept his statements as to the frequency and duration of his headaches and should have included them in his RFC and the hypothetical questions posed to the VE. (Tr. Pl. Br 5-6). The ALJ found that Nigro was not disabled based on the VE's testimony. (Tr. 31-32). The ALJ relied upon VE testimony that, given all of Nigro's credibly established limitations, he would be able to perform the requirements of his past work.
A claimant's statements alone are not enough to establish a physical or mental impairment. 42 U.S.S. § 423(d)(5); 20 C.F.R. § 404.1528(a). "[T]here must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of medical impairment that results from anatomical, physiological, psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence, would lead to a conclusion that the individual is under a disability." 42 U.S.C. § 423(d)(5)(A). When assessing credibility, the ALJ must find specific reasons supported by the evidence in the records. Soc. Sec. Ruling 96-7p, 1996 WL 374186. It is the ALJ's responsibility to determine the extent to which a claimant is accurately stating his degree of pain and level of disability. See Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
It is the duty of the ALJ to formulate a claimant's RFC. A claimant's RFC assessment is a reflection of the most a claimant can still do despite the limitations resulting from his or her medically determinable severe and non-severe impairments. 20 C.F.R. § 404.1545. Hypothetical questions "to a vocational expert must reflect all of the claimant's impairments that are supported by the record to provide substantial evidence." Durden v. Colvin, 191 F.Supp.3d 429, 459 (M.D. Pa. 2016). Commonly, attacks on the adequacy of hypotheticals posed to a vocational expert are actually an attack on the RFC. Rutherford v. Barnhart, 339 F.3d 546, 554 n. 8 (3d Cir. 2005). There are two ways that a plaintiff typically frames this type of argument. First, the claimant argues that the testimony cannot be relied upon because the ALJ failed to convey limitations to the vocational expert that were properly identified in the RFC assessment. Id. Second, the claimant argues that the vocational expert's testimony cannot be relied upon because the ALJ failed to recognize established limitations during the RFC assessment and thus did not convey those limitations to the VE. Id. Here, Nigro is asserting a modified version of the argument in stating that the ALJ erred in assigning insufficient credibility to Nigro's testimony, and the ALJ failed to credit the testimony of the VE in determining that Nigro was capable of performing light work and past relevant work as a cleaner.
However, as the Commissioner states, "the role of the VE is to advise the ALJ concerning vocational opportunities that comport with the claimant's credibly established limitations-not every impairment that a claimant alleges. An ALJ is not required to include limitations that she finds to be inconsistent with the record evidence in her [RFC] finding" nor is the ALJ required "to credit vocational expert testimony that is based on such limitations." See Craigie v. Bowen, 835 F.2d 56, 57-58 (3d Cir. 1987) (explaining that the ALJ does not have to accept a claimant's subjective testimony nor does the ALJ need to accept the vocational expert's testimony which is "predicated upon it").
The ALJ in this instance explained that Nigro's RFC is supported by the record as a whole. While, Nigro puts forth no evidence to support his assertion that the ALJ erred in formulating the vocational expert's hypothetical, the ALJ on the other hand, thoroughly explained her RFC findings based on the record as a whole. Thus, the Court finds that there is no reason to disturb this decision.
Accordingly, for the foregoing reasons,
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 18, 2019. Any party may obtain a review of the 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.
