OMAR J. ABOULHOSN, District Judge.
This is an action seeking review of the final decision of the Acting Commissioner of Social Security denying the Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. By Order entered July 11, 2019 (ECF No. 4), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are Plaintiff's Brief in Support of Judgment on the Pleadings and Defendant's Brief in Support of Defendant's Decision. (ECF Nos. 12, 17)
Having fully considered the record and the arguments of the parties, the undersigned respectfully
The Plaintiff, Patricia Lynne Petrie (hereinafter referred to as "Claimant"), protectively filed her applications for Titles II and XVI benefits on May 13, 2015 alleging that her disability began on March 1, 2010
An administrative hearing was held on January 24, 2018 before the Honorable Laura Bernasconi, Administrative Law Judge ("ALJ"). (Tr. at 32-68) On May 30, 2018, the ALJ entered an unfavorable decision. (Tr. at 10-30) On July 30, 2018, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 258-261) The ALJ's decision became the final decision of the Commissioner on May 9, 2019 when the Appeals Council denied Claimant's Request. (Tr. at 1-7)
On July 10, 2019, Claimant brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2) The Defendant, (hereinafter referred to as "Commissioner") filed an Answer and a Transcript of the Administrative Proceedings. (ECF Nos. 9, 10) Subsequently, Claimant filed a Brief in Support of Judgment on the Pleadings (ECF No. 12); in response, the Commissioner filed a Brief in Support of Defendant's Decision. (ECF No. 17)
Claimant was 50 years old as of the alleged amended onset date and considered a "person closely approaching advanced age" throughout the underlying proceedings.
Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability.
The Social Security Regulations establish a "sequential evaluation" for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found "not disabled" at any step, further inquiry is unnecessary.
When a claimant alleges a mental impairment, the Social Security Administration ("SSA") "must follow a special technique at every level in the administrative review process." 20 C.F.R. §§ 404.1520a(a), 416.920a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment.
Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in Sections 404.1520a(c) and 416.920a(c). Those Sections provide as follows:
Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of "none" or "mild" will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities.
Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder.
Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's residual functional capacity.
In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through June 30, 2014. (Tr. at 15, Finding No. 1) Moreover, the ALJ determined that Claimant satisfied the first inquiry because she had not engaged in substantial gainful activity since the alleged onset date of January 23, 2014. (
At the third inquiry, the ALJ concluded Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (
(Tr. at 19, Finding No. 5)
At step four, the ALJ found Claimant was capable of performing her past relevant work as a hotel housekeeper. (Tr. at 22, Finding No. 6) The ALJ also made an alternative finding at the final step and determined that in addition to the immateriality of the transferability of job skills, Claimant's age, education, work experience, and RFC indicated that there are jobs that exist in significant numbers in the national economy that Claimant can perform, to-wit: a merchandise marker; routing clerk; and labeler/marker. (Tr. at 23-24) Finally, the ALJ determined Claimant had not been under a disability from January 23, 2014 through the date of the decision. (Tr. at 24, Finding No. 7)
Claimant asserts that the ALJ erred on numerous grounds. First, the ALJ neglected to mention or weigh the psychological opinion provided by Angela Null, M.S., and this omission prejudiced the ALJ's credibility analysis as well as the resulting RFC assessment to the extent that not all of Claimant's mental limitations were considered. (ECF No. 12 at 5-6) Further, the ALJ's RFC assessment is fatally flawed because it did not properly accommodate Claimant's physical limitations which are noted in the medical records from David Rupp, M.D. and Marshall Health. (
Claimant asks this Court to reverse the decision below and award her benefits, or alternatively, remand this case to correct the errors below. (
In response, the Commissioner argues that under the Regulations, Ms. Null's evaluation findings were not a "medical opinion" that needed to be weighed, and her diagnoses and prognosis are insufficient to the extent that they are a medical opinion because they did not indicate what Claimant could or could not do or how these impairments impacted her abilities, let alone her functioning. (ECF No. 17 at 13-15) Further, it appears the ALJ did consider Ms. Null's report despite not mentioning it, because the ALJ's findings with respect to Claimant's mental impairments were consistent with Ms. Null's. (
Significantly, when assessing Claimant's RFC, the ALJ reviewed the mental health evidence from Prestera which was consistent with both Ms. Null's examination findings and Dr. Rupp's observations. (
With regard to the physical RFC, the Commissioner argues that the ALJ considered all the relevant medical evidence, including the records provided by Dr. Rupp, and other evidence of record, which supported the ALJ's limiting Claimant to light work. (
The ALJ's credibility assessment complied with Social Security Ruling ("SSR") 16-3p and provided a reasoned explanation for why she found Claimant's allegations of disabling symptoms were not consistent with the objective evidence. (
The Commissioner asserts that the final decision is supported by substantial evidence and asks this Court to affirm. (
The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.
Claimant had a history of treatment for various physical impairments, including hypertension, as well as osteoarthritis/low back pain (Tr. at 375-381, 383-387, 389-398, 400-404, 530, 643-644, 700-702, 717-718).
In mid-2015, she was treated for bilateral foot pain due to low-impact fractures of the metatarsal bones in her feet (Tr. at 375-377, 427-430, 501-502, 537-540, 589, 599-601, 658-659, 664-666, 689). Osteoporosis was a concern because of Claimant's previous history of substance abuse (Tr. at 378). A bone density (DEXA) scan showed normal to borderline evidence of osteopenia (Tr. at 581, 700). Claimant was prescribed Fosamax for treatment (Tr. 702, 1027, 1030).
X-rays of Claimant's feet between April and June 2015 showed multiple stress fractures in various stages of healing in her left foot and right foot (Tr. at 405, 407, 430, 446, 517, 540, 549, 601, 681, 684, 687-688, 692). Claimant complained of swelling in both feet, as well as pain, exacerbated by ambulation and direct palpation (Tr. at 684, 689-690). She was initially fitted with Darco shoes and prescribed crutches (Tr. at 541, 685, 688). She was later advised to wear hard-soled shoes when ambulating and weightbearing (Tr. at 692, 676, 678-79, 684). In August 2015, Claimant wore regular shoes and refractured her second metatarsal bone in her right foot (Tr. at 677-678). She was advised to wear a hard-soled shoe on her right foot while it healed (Tr. at 678). Claimant's preference, however, was to walk in her regular shoes (Tr. at 672). The fractures eventually healed (Tr. at 672, 674, 958, 1027, 1035, 1173, 1310). As early as December 2015, Claimant's primary care physician, David Rupp, M.D., reported that Claimant's gait and station were normal (Tr. at 961). Examination of Claimant's joints, bones, and muscles were normal (
In August 2016, Claimant was briefly treated by a podiatrist for right foot pain (Tr. at 1391-1396). Although no new fracture line was visible on the x-ray, an early stress fracture of her right fifth metatarsal could not be ruled out and Claimant was advised to wear a walking boot for about three weeks (Tr. at 1392, 1395). In a follow-up appointment three weeks later, Claimant reported improvement with her right foot symptoms (Tr. at 1391).
Claimant reinjured her right foot in September 2016 and again in February 2017, when she slipped and fell while walking her dog (Tr. at 1039-1041, 1058-1059, 1107-1109, 1242-1243). On both occasions, Claimant was diagnosed with a foot sprain (Tr. at 1059, 1041). X-rays of Claimant's right foot showed old healed fractures, but no acute fractures or abnormalities (Tr. at 1173, 1310). In October 2016, Claimant's gait was noted to non-antalgic and she stood and walked unassisted (Tr. at 1374, 1385).
In addition to bilateral foot pain, Claimant was treated for complaints of low back pain between 2014 and 2017 (Tr. at 379-381, 389-391, 694-698, 958-961, 1030, 1034, 1050, 1060-1064, 1070-1073, 1079-1083, 1356-1392, 1363, 1366, 1370-1377, 1384-1388). An MRI of Claimant's lumbar spine in November 2015 showed a disc bulge at L4-L5 with some stenosis (Tr. at 890, 1360). An MRI of Claimant's thoracic spine, taken on the same day, showed normal findings, including no evidence of a previously seen lower thoracic syrinx (Tr. at 481-482, 889-890). An updated x-ray of Claimant's lumbar spine in February 2016 showed degenerative disc disease at L4-L5 and degenerative facet disease bilaterally at L4-L5 and L5-S1 (Tr. at 1353). Claimant was diagnosed with spondylosis in the lumbosacral region without myelopathy or radiculopathy (Tr. at 1030, 1034, 1049). There was no evidence of nerve root compression (Tr. at 1370, 1386).
In November 2016, Claimant was treated for acute swimmer's ear subsequent to swimming at the YMCA (Tr. at 1046-1050).
Regarding Claimant's low back, physical examinations showed tenderness of her lumbar spine, some decreased range of motion, and occasional positive straight leg raising (Tr. at 380, 386, 394, 696, 1361). Other physical examinations, however, showed negative straight leg raising (Tr. at 390, 394, 696), normal neurological findings, including normal sensation and reflexes (Tr. at 386, 956, 961, 1049, 1059, 1063, 1069, 1082, 1184,1374, 1385), and normal gait and stance (Tr. at 390, 961, 956, 1049, 1073, 1063, 1087, 1361, 1374, 1385).
Claimant was prescribed medications for low back pain (Tr. at 377, 381, 386-387, 391, 395, 645, 698, 702, 1030, 1034, 1038, 1050, 1064, 1073, 1083). She also participated in pain management and received facet joint injections for lumbosacral spondylosis and trigger point injections for myofascial pain syndrome (Tr. at 1362, 1363, 1366, 1370-1371, 1376, 1380-1383, 1386-1387
In August 2015, Aurelio R. Gomez-Castil, M.D., a State agency medical consultant, reviewed the record at the initial level and opined that, notwithstanding Claimant's history of metatarsal fractures and chronic back pain, she retained the capacity to perform a reduced range of light work with postural and environmental limitations (Tr. at 75-77). In March 2016, Narendra Parikshak, M.D., a State agency medical consultant, reviewed the updated record at the reconsideration level and affirmed Dr. Gomez-Castil's opinion (Tr. at 104-106).
Claimant had a history of mental impairments, including depression and a past history of substance abuse, of which she was in remission since 2012 (Tr. at 377-378, 668, 787, 792, 821, 964-965, 967).
Claimant's primary care physicians diagnosed depression and occasionally prescribed psychotropic medications for treatment (Tr. at 375, 377, 379, 381, 387). In November 2016, February 2017, and May 2017, Dr. Rupp characterized Claimant's depression as mild (Tr. at 1034, 1038, 1046, 1050). Dr. Rupp often reported Claimant's mood and affect as normal on examinations (Tr. at 956, 961, 1030, 1034, 1038, 1049, 1063, 1069, 1073, 1082, 1087).
Beginning in August 2015, Claimant also sought outpatient treatment at the Prestera Center for symptoms of depression and bipolar disorder, including mood swings, agoraphobic feelings, and difficulty being around other people (Tr. at 786-802, 820-32). Claimant was prescribed medications and received some individual therapy (Tr. at 971-979, 982, 993, 998, 1008, 1013, 1018, 1023). Claimant generally denied hallucinations, delusions, or thoughts of self-harm (Tr. at 794, 971-972, 974-975, 977-978, 980-981, 985-986, 991-992, 996-97, 1000-1001, 1006-1007, 1011-1012, 1016-1017, 1021-1022). Although Claimant sometimes had a dysphoric or sad affect, examinations starting in September 2015 showed that she generally had a cooperative attitude, intact memory, intact thought processes, appropriate thought content, good or fair concentration, intact or fair/partial insight, and intact judgment (Tr. at 793-794, 971-972, 974-975, 977-978, 980-981, 985-986, 991-992, 996, 1000-1001, 1006-1007, 1011-1012, 1016-1017, 1021-1022). In August 2016, Claimant reported to a treating psychiatrist that she graduated from a junior college with a degree in business management (Tr. at 980). Claimant's last treatment note was in September 2017 which indicated that Claimant's mental status examination was grossly normal with a fair prognosis (Tr. at 985-989).
On March 28, 2016, Angel Null, M.S., performed a consultative psychological evaluation of Claimant (Tr. at 963-968). Claimant rode her bike to the appointment, which was approximately one block away (Tr. at 963). She alleged having recurrent major depressive and manic episodes, panic disorder, and chronic daily pain interfering with her functioning (Tr. at 964). She also presented with a history of polysubstance use and dependence in remission (
With regard to social functioning, Claimant reported that she generally went to the grocery store and ran errands once a week (Tr. at 967). She visited friends at her NA meetings and went to her daughters' and visited her grandchildren once a week (
With regard to daily activities, Claimant reported that she performed all basic living duties independently, with exception of requiring some assistance with lifting (
On examination, Ms. Null reported that Claimant was adequately groomed and cooperative with the examiner (Tr. at 966). She established direct eye contact (
Ms. Null diagnosed Claimant with bipolar disorder, somatic symptom disorder with persistent pain, panic disorder, and alcohol use disorder in early remission (Tr. at 966-967). Ms. Null stated that Claimant's prognosis was poor and stated that Claimant might require some assistance to manage her finances based on her history of polysubstance abuse (Tr. at 967). Ms. Null did not provide an assessment of Claimant's ability to perform work-related mental activities.
In August 2015, Frank Roman, Ed.D., a State agency psychological consultant reviewed the record at the initial level of review and concluded that Claimant did not have a severe mental impairment (Tr. at 74-75). Specifically, Dr. Roman opined that Claimant had only a mild restriction of activities of daily living; mild difficulties in social functioning; mild difficulties in maintaining concentration persistence or pace, and no repeated episodes of decompensation (Tr. at 74). At the reconsideration level in April 2016, Rosemary L. Smith, Psy.D., reviewed the updated record, including Ms. Null's consultative report, and affirmed Dr. Roman's opinion that Claimant did not have a severe mental impairment (Tr. at 101-102).
Claimant testified that she could not work because of her mental impairments and because of her arthritis in her low back and osteoporosis in her feet. (Tr. at 41) She stated that she had constant pain in her lower back and toes. (Tr. at 41, 54) She testified that her pain medication helps dull the pain most of the time and that she received injections at a pain clinic which did not seem to help. (Tr. at 41-42) She stated that back surgery was never suggested (Tr. at 42) and that despite her history of fractured metatarsals in her feet, her bones never had to be reset or put in a cast (Tr. at 43). She stated that she used crutches for a short time, but otherwise wore special orthopedic shoes for about six weeks when she had a stress fracture or a broken bone in her foot (
With regard to her mental impairments, Claimant testified that she experienced blackouts due to PTSD as well as panic attacks due to social anxiety. (Tr. at 44) She stated that she had panic attacks at least once a week and they last about two minutes, but it takes her about three hours to recover from them. (Tr. at 45) She stated that she has trouble dealing with authoritative figures which has interfered with her ability to hold down a job. (Tr. at 47) She testified that she takes Abilify, Lexapro, Klonopin, Vistaril and Ritalin and stated that her medication has helped. (Tr. at 44)
Claimant testified that she got around town by taking the bus or walking; she let her driver's license lapse in 2004 but lacked the courage to take the driver's test again (Tr. at 46). She described a typical day as getting up, taking her medication, taking care of her dog and cat, and taking care of some household duties, depending on her depression (
The VE testified that a hypothetical individual with Claimant's vocational profile and reduced light RFC as found by the ALJ could perform Claimant's past relevant work as a hotel housekeeper, as well as perform other occupations in the national economy, including work as a merchandise marker, routing clerk, and labeler/marker. (Tr. at 64-65)
The sole issue before this Court is whether the final decision of the Commissioner denying the claim is supported by substantial evidence. In
Because Claimant takes issue with the ALJ's evaluation of the opinion evidence as it relates to the report provided by Ms. Null, as a practical matter it is best to review how the SSA governs the criteria for evaluating opinion evidence prior to addressing the ALJ's RFC assessment and fifth step determination; per §§ 404.1527(a)(1), 416.927(a)(1):
The Regulations provide that an ALJ must analyze and weigh every "
The ALJ is nevertheless required to consider "all evidence" in the case record. 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3). As noted by the parties, there is no dispute that the ALJ does not explicitly reference or mention Ms. Null's findings. It is known that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision."
In sum, the undersigned
Claimant has stated that the ALJ erred when she found Claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms were inconsistent with the evidence of record in light of the evidence of record as well as Ms. Null's psychological evaluation report. (ECF No. 12 at 6) In this case, the ALJ properly applied the two-step process espoused by
The Ruling further directs that factors in evaluating the consistency of an individual's statements about pain or other symptoms and about the effect the symptoms have on his or her ability to function must be based on a consideration of all of the evidence in the case record. This includes, but is not limited to: (1) the medical signs and laboratory findings; (2) diagnosis, prognosis, and other medical opinions provided by treating or examining physicians or psychologists and other medical sources; and (3) statements and reports from the individual and from treating or examining physicians or psychologists and other persons about the individual's medical history, treatment and response, prior work record and efforts to work, daily activities, and other information concerning the individual's symptoms and how the symptoms affect the individual's ability to work.
Moreover, it is well known that credibility determinations are properly within the province of the adjudicator and beyond the scope of judicial review.
The ALJ began her analysis of Claimant's initial allegations that she is unable to work because of osteoporosis, arthritis, bipolar disorder, anxiety, PTSD, and SAD. (Tr. at 20, 279-286)
Regarding her mental impairments, the ALJ noted that Claimant testified that she has panic attacks about once a week that requires a three-hour recovery and that she has black out spells and nightmares from PTSD from childhood abuse. (
Next, the ALJ considered the medical evidence of record with respect to her physical and mental impairments, noting that Claimant received only conservative treatment before and after her alleged onset date. (
With respect to Claimant's problems with feet fractures, despite Claimant's allegations of chronic spine and joint pain, the ALJ noted that the record showed she received minor treatments, and that she suffered fractures in her feet in mid-2015 after Claimant dropped a heavy kettle on them. (Tr. at 20, 405, 501) Though the ALJ acknowledged Claimant's feet fractures healed slowly and that she was unable to stand or walk for a significant length of time, Claimant's fractures healed after less than twelve months and she was able to stand and walk without significant limitations. (Tr. at 20, 672-693)
With regard to Claimant's complaints of low back pain with radiation of numbness and tingling into the extremities, the ALJ noted that the medical records sometimes showed positive findings on straight leg raise tests bilaterally and other times, negative findings. (Tr. at 21, 696) The ALJ acknowledged that diagnostic imaging studies showed mild degenerative changes in Claimant's lumbar spine and disc bulging, but no more significant findings. (Tr. at 21, 482, 1318-1390)
Next, the ALJ reviewed the record as it related to Claimant's mental impairments, noting that she had "received consistent treatments for symptoms variously diagnosed as bipolar disorder, depression, PTSD, and anxiety." (Tr. at 21) The ALJ recognized that the treatment records indicated Claimant's symptoms, including crying spells, insomnia, agoraphobia, mood swings, racing thoughts, and social phobias had waxed and waned in severity over time in response to life stressors, with the worst symptoms generally coinciding with Claimant's past periods of substance abuse. (Tr. at 21, 803-841)
As for some inconsistencies with Claimant's allegations of totaling disabling mental impairments, the ALJ further observed that the record showed that Claimant frequently left her home to ride public transportation, go shopping and attend her medical appointments without significant problems which indicated she is capable of interacting with others when she chooses. (Tr. at 21) The ALJ further addressed these inconsistencies, noting that Claimant received some treatment for the alleged disabling impairments, but that treatment was essentially routine and conservative. (Tr. at 22) The ALJ noted that the record showed infrequent medical appointments as well as significant gaps in the treatment history. (
In sum, the ALJ found that although the record does not dispute that Claimant has certain conditions which singly or in combination cause her limitations, ultimately, Claimant was not as limited by her impairments as alleged. (
Claimant contends that the ALJ's RFC assessment is reversible error because Claimant's physical impairments preclude all employment, particularly at the light exertional level of work. (ECF No. 12 at 6) To that extent, Claimant argues that the ALJ committed reversible error for failing to find that Claimant's "grids out" as of January 23, 2014, her 50th birthday, pursuant to Medical-Vocational Rule 201.12. (
Residual functional capacity represents the most that an individual can do despite her imitations or restrictions.
As noted supra, the ALJ compared Claimant's statements and testimony concerning her alleged disabling conditions with the objective and other evidence of record, and ultimately determined that the evidence simply did not support Claimant's allegations that she was so limited that all substantial gainful activity was precluded. Because only the ALJ is tasked with determining the particular facts in a case and to resolve the inconsistencies therein, this Court does not re-weigh conflicting evidence or substitute its judgment for that of the Commissioner.
(Tr. at 22, 482, 1318-1390)
Moreover, it is important to appreciate this Circuit's recognition that hypothetical questions need only incorporate those limitations that an ALJ accepts as credible and that are supported by the record.
Finally, the undersigned
For the reasons set forth above, it is hereby respectfully
The parties are notified that this Proposed Findings and Recommendation is hereby
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.
The Clerk of this Court is directed to file this Proposed Findings and Recommendation and to send a copy of same to counsel of record.