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CASE NO. 4:18-cv-02262-MWB-GBC
02-18-2020
BRENDI BARZYK, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Brendi Barzyk ("Plaintiff"), proceeding pro se, seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A).
The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920. The process requires an Administrative Law Judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("Court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)).
II. BACKGROUND
A. Procedural History
Plaintiff was awarded Supplemental Security Income ("SSI") benefits as a child under the age of eighteen on April 11, 2009. (Tr. 216). Upon turning eighteen on April 10, 2013, the agency conducted an eligibility review pursuant to the regulations under the adult disability framework. (Tr. 34, 220). See 20 C.F.R. §§ 416.920, 416.987(a) (explaining redetermination process). Based on that review, the agency determined Plaintiff was not disabled based on the adult disability regulations as of February 1, 2014. (Tr. 34, 220). Plaintiff then requested a hearing before an ALJ, and she appeared at three different hearings, during which she was represented by two different attorneys. (Tr. 48-100). On May 24, 2017, the ALJ issued a decision finding Plaintiff's disability ended February 1, 2014. (Tr. 32-41). In September 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. §§ 416.1481; 422.210(a). This action followed.
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges the following errors: (1) ALJ erred in failing to find Plaintiff met the criteria for a listed impairment; (2) the ALJ erred in finding Plaintiff's migraines and brain injury complications were "mild limitations;" (3) the ALJ erred in failing to find Plaintiff's work and school history constituted unsuccessful work attempts; (4) the ALJ erred in failing to consider Plaintiff's use of marijuana assists her symptoms; (5) the ALJ erred in failing to accord weight to Plaintiff's self-reports of mental health symptoms to her therapist, Anne Reisinger; and (6) the ALJ erred in failing to consider the Vocational Expert ("VE")'s testimony Plaintiff could not work if missing more than 1.3 workdays per month. (Pl. Br. at 2-7) (Doc. 13).
A. Listed Impairment
1. Sections 1.04 (Disorders of the Spine); 11.18 (Traumatic Brain Injury); 12.02 (Neurocognitive Disorders); 12.04 (Depressive, Bipolar and Related Disorders); and 12.15 (Trauma and Stress-Related Disorders)
Plaintiff contends the ALJ erred by finding Plaintiff did not meet the requirements for Listings 1.04, 11.18, 12.02, 12.04, and 12.15 (Disorders of the Spine; Traumatic Brain Injury; Neurocognitive Disorders; Depressive, Bipolar and Related Disorders; and Trauma and Stress-Related Disorders). (Pl. Br. at 4-7). §§ 1.04, 11.18, 12.02, 12.04, and 12.15 provides a claimant is disabled per se as follows:
1.00 Musculoskeletal System
...
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);20 C.F.R. § Pt. 404, Subpt. P, App. 1, Part-A1 To Subpart P of Part 404—Listing of Impairments, §§ 1.00, 1.04 (Effective: March 27, 2017 to December 14, 2017).
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
11.00 Neurological Disorders
...
11.18 Traumatic brain injury, characterized by A or B:
A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the injury; or
B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following areas of mental functioning, persisting for at least 3 consecutive months after the injury:
1. Understanding, remembering, or applying information (see 11.00G3b(i)); or
2. Interacting with others (see 11.00G3b(ii)); or
3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
4. Adapting or managing oneself (see 11.00G3b(iv)).
...
12.00 Mental Disorders
Listings 12.02, 12.03, 12.04, 12.06, and 12.15 have three paragraphs, designated A, B, and C; your mental disorder must satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C ...
a. Paragraph A of each listing (except 12.05) includes the medical criteria that must be present in your medical evidence.
b. Paragraph B of each listing (except 12.05) provides the functional criteria we assess, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how your mental disorder limits your functioning. These criteria represent the areas of mental functioning a person uses in a work setting. They are: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. We will determine the degree to which your medically determinable mental impairment affects the four areas of mental functioning and your ability to function independently, appropriately, effectively, and on a sustained basis (see §§ 404.1520a(c)(2) and 416.920a(c)(2) of this chapter). To satisfy the paragraph B criteria, your mental disorder must result in "extreme" limitation of one, or "marked" limitation of two, of the four areas of mental functioning. (When we refer to "paragraph B criteria" or "area[s] of mental
functioning" in the introductory text of this body system, we mean the criteria in paragraph B of every listing except 12.05.)
c. Paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15 provides the criteria we use to evaluate "serious and persistent mental disorders." To satisfy the paragraph C criteria, your mental disorder must be "serious and persistent"; that is, there must be a medically documented history of the existence of the disorder over a period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2 (see 12.00G). (When we refer to "paragraph C" or "the paragraph C criteria" in the introductory text of this body system, we mean the criteria in paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15.)
...
Neurocognitive disorders (12.02).
a. These disorders are characterized by a clinically significant decline in cognitive functioning. Symptoms and signs may include, but are not limited to, disturbances in memory, executive functioning (that is, higher-level cognitive processes; for example, regulating attention, planning, inhibiting responses, decision-making), visual-spatial functioning, language and speech, perception, insight, judgment, and insensitivity to social standards.
b. Examples of disorders that we evaluate in this category include major neurocognitive disorder; dementia of the Alzheimer type; vascular dementia; dementia due to a medical condition such as a metabolic disease (for example, late-onset Tay-Sachs disease), human immunodeficiency virus infection, vascular malformation, progressive brain tumor, neurological disease (for example, multiple sclerosis, Parkinsonian syndrome, Huntington disease), or traumatic brain injury; or substance-induced cognitive disorder associated with drugs of abuse, medications, or toxins. (We evaluate neurological disorders under that body system (see 11.00). We evaluate cognitive impairments that result from neurological disorders under 12.02 if they do not satisfy the requirements in 11.00 (see 11.00G).)
c. This category does not include the mental disorders that we evaluate under intellectual disorder (12.05), autism spectrum disorder (12.10), and neurodevelopmental disorders (12.11).
...
12.02 Neurocognitive disorders (see 12.00B1), satisfied by A and B, or A and C:
A. Medical documentation of a significant cognitive decline from a prior level of functioning in one or more of the cognitive areas:
1. Complex attention;
2. Executive function;
3. Learning and memory;
4. Language;
5. Perceptual-motor; or
6. Social cognition.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is "serious and persistent;" that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).
...
Depressive, bipolar and related disorders (12.04).
a. These disorders are characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal.
b. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder, persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition.
...
12.04 Depressive, bipolar and related disorders (see 12.00B3), satisfied by A and B, or A and C:
A. Medical documentation of the requirements of paragraph 1 or 2:
1. Depressive disorder, characterized by five or more of the following:
a. Depressed mood;
b. Diminished interest in almost all activities;
c. Appetite disturbance with change in weight;
d. Sleep disturbance;
e. Observable psychomotor agitation or retardation;
f. Decreased energy;
g. Feelings of guilt or worthlessness;
h. Difficulty concentrating or thinking; or
i. Thoughts of death or suicide.
2. Bipolar disorder, characterized by three or more of the following:
a. Pressured speech;
b. Flight of ideas;
c. Inflated self-esteem;
d. Decreased need for sleep;
e. Distractibility;
f. Involvement in activities that have a high probability of painful consequences that are not recognized; or
g. Increase in goal-directed activity or psychomotor agitation.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is "serious and persistent;" that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).
...
Trauma-and stressor-related disorders (12.15).
a. These disorders are characterized by experiencing or witnessing a traumatic or stressful event, or learning of a traumatic event occurring to a close family member or close friend, and the psychological aftermath of clinically significant effects on functioning. Symptoms and signs may include, but are not limited to, distressing memories, dreams, and flashbacks related to the trauma or stressor; avoidant behavior; diminished interest or participation in significant activities; persistent negative emotional states (for example, fear, anger) or persistent inability to experience positive emotions (for example, satisfaction, affection); anxiety; irritability; aggression; exaggerated startle response; difficulty concentrating; and sleep disturbance.
b. Examples of disorders that we evaluate in this category include posttraumatic stress disorder and other specified trauma- and stressor-related disorders (such as adjustment-like disorders with prolonged duration without prolonged duration of stressor).
c. This category does not include the mental disorders that we evaluate under anxiety and obsessive-compulsive disorders (12.06), and cognitive impairments that result from neurological disorders, such as a traumatic brain injury, which we evaluate under neurocognitive disorders (12.02).
...
12.15 Trauma- and stressor-related disorders (see 12.00B11), satisfied by A and B, or A and C:
A. Medical documentation of all of the following:
1. Exposure to actual or threatened death, serious injury, or violence;
2. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks);
3. Avoidance of external reminders of the event;
4. Disturbance in mood and behavior; and
5. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance).
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is "serious and persistent;" that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).20 C.F.R. pt. 404, subpt. P, app. 1, Part-A2. To Subpart P of Part 404—Listing of Impairments, §§ 11.00, 11.18, 12.00, 12.02, 12.04, and 12.15 (Effective: March 27, 2017 to August 21, 2017). Plaintiff contends she meets the criteria of Listings 1.04, 11.18, 12.02, 12.04, and 12.15 (Pl. Br. at 4-7). The ALJ made the following findings regarding Plaintiff's impairments and the listings:
Since February 1, 2014, the claimant has had the following severe impairments: fibromyalgia, migraine headaches, depressive disorder, and anxiety disorder ...
Since February 1, 2014, the claimant did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925, and 416.926).
While there is no specific listing for fibromyalgia, the [ALJ] has fully evaluated the claimant's severe medically determinable impairment of fibromyalgia under all applicable listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1, specifically, under listings 1.00 et seq.: Musculoskeletal and listing 14.09: Inflammatory Arthritis and finds that the claimant's fibromyalgia syndrome does not meet or equal these listings or any other listing[]. The claimant's migraine headache symptoms do not satisfy the criteria of any listing[] under section 11.00 et seq.
The severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04 and 12.06 ...
In understanding, remembering, or applying information, the claimant has mild limitations. The claimant's mental status examinations have not reflected any significant deficiencies in memory or executive functioning, and the claimant has achieved generally good academic results in college courses during the period at issue. In interacting with others, the claimant has mild limitations. The claimant has alleged difficulties with social interactions due to anxiety symptoms, but her treatment notes have documented adequate communication and social functioning skills. Further, the claimant's satisfactory ability to attend classes, shop in stores, and socialize with friends is not indicative of substantial restriction in this area. With regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitations. The claimant's treatment notes reflect some issues with the claimant's concentration on clinical examination, but she has demonstrated adequate ability to participate in classes and examinations. Accordingly, the [ALJ]
finds that the claimant has had no more than moderate limitation in this area. As for adapting or managing oneself, the claimant has experienced mild limitations. This finding is supported by the claimant's reports to treatment providers, and by her reported and demonstrated ability to engage in a full range of self-care activities during the period at issue ...
Records relating to the period following February 1, 2014, do not consistently reflect a disabling degenerative of functional restriction. On January 28, 2014, the claimant's medical records were reviewed by State Agency psychologist Dr. Hoffman, who concluded that the claimant would have no more than moderate limitation in any area of mental functioning including understanding and memory, sustained concentration and persistence, social interaction, or adaption. Dr. Hoffman opined that the claimant would be able to understand, remember and carry-out simple one- and two-part instructions, may have difficulty interacting with the public, coworkers and supervisors, and may have difficulty responding to changes and pressures in the work setting. In support of these assessments, Dr. Hoffman provided a discussion of the claimant's mental health issues and reported daily activities.
On February 12, 2014, State Agency physician Dr. Popat reviewed the claimant's medical records and opined that the claimant would be capable of performing the full range of work at the medium exertional level. Dr. Popat's assessment was accompanied by a supporting discussion of the claimant's physical health treatment history and clinical examination findings.
Primary care treatment records dating from February through April 2014 reflect the claimant's reports of generalized pain and weakness, but document no examination findings of significant physical abnormality or functional deficiency. The claimant's reports over the course of this period indicate that she experienced substantial symptomatic relief from her prescribed medication ...
On June 18, 2014, State Agency psychologist Dr. Small completed a psychiatric review technique form in which he opined that the claimant's mental impairments and symptoms would result in no more than mild restriction in activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. In an associated Mental Residual Functional Capacity Assessment, Dr. Small specified that the claimant would have moderate limitations in the ability to maintain attention and concentration for extended periods, and to respond to changes in the work setting, with no other significant mental functioning restrictions.
On June 26, 2014, State Agency physician Dr. Mesaros opined that that claimant's medical records reflected the capacity to perform work at the medium exertional level. Dr. Mesaros supported this opinion with detailed citations to the objective clinical signs and findings of record include medical imaging, physical and neurologic examination reports, and the claimant's reported functional capabilities ...
Primary care records dated July 30, 2014 reflect the claimant's reports that her medication was no longer effectively controlling her chronic pain but indicate that she denied any significant functional limitations resulting from her symptoms. On August 20, 2014, the claimant reported that she was doing "ok" despite her pain, and evinced no deficiencies or abnormalities on physical examination ...(Tr. 34-38). The ALJ found Plaintiff did not meet the requirements for a listed impairment. (Tr. 34). Specifically, the ALJ found Plaintiff's fibromyalgia did not meet the criteria under section 1.00 et seq. or section 14.09. (Tr. 34). The ALJ further found Plaintiff's migraine headache symptoms did not satisfy the criteria under section 11.00 et seq. (Tr. 34). Finally, the ALJ found Plaintiff's mental impairments do not meet the criteria of listings 12.04 or 12.06. (Tr. 34). Plaintiff alleges the ALJ erred by finding she did not meet the criteria for Listings 1.04, 11.18, 12.02, 12.04, and 12.15. (Pl. Br. at 4-7). Plaintiff does not point to a physician who has found Plaintiff met the criteria for any listed impairment, nor does she not point to medical findings that are the same or equivalent to the criteria of the listed impairments, as cited above. (Pl. Br. at 4-7).
Behavioral health outpatient notes dated December 2, 2014 document the claimant's reports of worsening depressive and anxiety symptoms. However, mental status examination findings in these records reflect generally appropriate communication, thought process, and cognition (though the claimant did evince some difficulty with concentration). Further, these notes document the claimant's reports of adequate academic performance and interaction abilities related to her college attendance. The claimant was started on a new mental health medication regimen at that time, and on December 15, 2014, she reported that she was feeling better and had a stable mood. Mental status examination on that date reflected findings within normal limits in all areas ...
Behavioral health records dated February 16, 2015 reflect complaints limited to mild irritability, with reports of improved mood.
Physical functioning. Examples of this criterion include specific motor abilities, such as independently initiating, sustaining, and completing the following activities: Standing up from a seated position, balancing while standing or walking, or using both your upper extremities for fine and gross movements (see 11.00D). Physical functioning may also include functions of the body that support motor abilities, such as the abilities to see, breathe, and swallow (see 11.00E and 11.00F). Examples of when your limitation in seeing, breathing, or swallowing may, on its own, rise to a "marked" limitation include: Prolonged and uncorrectable double vision causing difficulty with balance; prolonged difficulty breathing requiring the use of a prescribed assistive breathing device, such as a portable continuous positive airway pressure machine; or repeated instances, occurring at least weekly, of aspiration without causing aspiration pneumonia. Alternatively, you may have a combination of limitations due to your neurological disorder that together rise to a "marked" limitation in physical functioning. We may also find that you have a "marked" limitation in this area if, for example, your symptoms, such as pain or fatigue (see 11.00T), as documented in your medical record, and caused by your neurological disorder or its treatment, seriously limit your ability to independently initiate, sustain, and complete these work-related motor functions, or the other physical functions or physiological processes that support those motor functions. We may also find you seriously limited in an area if, while you retain some ability to perform the function, you are unable to do so consistently and on a sustained basis. The limitation in your physical functioning must last or be expected to last at least 12 months. These examples illustrate the nature of physical functioning. We do not require documentation of all of the examples. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 11.00G3a (Effective: March 27, 2017 to August 21, 2017).
Anxiety and obsessive-compulsive disorders (12.06). a. These disorders are characterized by excessive anxiety, worry, apprehension, and fear, or by avoidance of feelings, thoughts, activities, objects, places, or people. Symptoms and signs may include, but are not limited to, restlessness, difficulty concentrating, hyper-vigilance, muscle tension, sleep disturbance, fatigue, panic attacks, obsessions and compulsions, constant thoughts and fears about safety, and frequent physical complaints. b. Examples of disorders that we evaluate in this category include social anxiety disorder, panic disorder, generalized anxiety disorder, agoraphobia, and obsessive-compulsive disorder. c. This category does not include the mental disorders that we evaluate under trauma- and stressor-related disorders (12.15). 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Effective: March 27, 2017 to August 21, 2017).
Plaintiff states she meets the criteria for listing 12.02 due to fibromyalgia and hemiplegic migraines. (Pl. Br. at 4-5). However, under listing 12.02, the requisite criteria are "characterized by a clinically significant decline in cognitive functioning" and "[e]xamples of disorders that we evaluate in this category include ... dementia of the Alzheimer type; vascular dementia; dementia due to a medical condition such as a metabolic disease (for example, late-onset Tay-Sachs disease), human immunodeficiency virus infection, vascular malformation, progressive brain tumor, neurological disease (for example, multiple sclerosis, Parkinsonian syndrome, Huntington disease), or traumatic brain injury; or substance-induced cognitive disorder associated with drugs of abuse, medications, or toxins." See 20 C.F.R. pt. 404, subpt. P, app. 1, Neurocognitive disorders § 12.02 (Effective: March 27, 2017 to August 21, 2017). Plaintiff does not demonstrate she satisfies the criteria for listing 12.02.
Plaintiff states she meets the criteria for listing 1.04 due to a history of positive straight leg testing. (Pl. Br. at 5). However, under listing 1.04, the criteria requires a spine disorder "resulting in a compromise of a nerve root." See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04 Disorders of the spine (Effective: March 27, 2017 to December 14, 2017). Plaintiff does not demonstrate she satisfies the criteria for listing 1.04.
Plaintiff states she meets the criteria for listing 11.18 due to traumatic brain injury. (Pl. Br. at 5-6). However, under listing 11.18, the requisite criteria are "characterized by ... Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities ... or Marked limitation in physical functioning ... and in one of the following areas of mental functioning." See 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.18, Traumatic brain injury (Effective: March 27, 2017 to August 21, 2017). Plaintiff does not demonstrate she satisfies the criteria for a marked limitation in physical and mental functioning under listing 11.18.
Plaintiff states she meets the criteria for listing 12.04 for depressive, bipolar and related disorders. (Pl. Br. at 6). However, under listing 12.04, the requisite criteria are "characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder, persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition." See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04 Depressive, bipolar and related disorders (Effective: March 27, 2017 to August 21, 2017). Plaintiff does not demonstrate she satisfies the criteria for listing-level severity under 12.04.
Plaintiff states she meets the criteria for listing 12.15 for trauma-and stressor-related disorders. (Pl. Br. at 6). However, under listing 12.15, the requisite criteria are "A. Medical documentation of all of the following: 1. Exposure to actual or threatened death, serious injury, or violence; 2. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks); 3. Avoidance of external reminders of the event; 4. Disturbance in mood and behavior; and 5. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance). AND Extreme limitation of one, or marked limitation of two, of paragraph B [as cited above]; OR C. ... a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental; and 2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life." See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.15, Trauma-and stressor-related disorders (Effective: March 27, 2017 to August 21, 2017) (italics emphasis added). Plaintiff does not demonstrate she has the requisite medical documentation for listing-level severity under 12.15.
Therefore, Plaintiff has not shown she meets the criteria for Listings 1.04, 11.18, 12.02, 12.04, and 12.15. Given that not all of the elements of a listing have been satisfied, substantial evidence supports the ALJ's determination that Plaintiff does not meet the criteria for a listed impairment. See Williams v. Sullivan, 970 F.2d 1178, 1186.
B. RFC Limitations and Plaintiff's Impairments of Migraines and Brain Injury Complications
Plaintiff contends the ALJ erred in finding Plaintiff's migraines and brain injury complications were "mild limitations." (Pl. Br. at 5). The ALJ made the following observations regarding Plaintiff's migraines and neurology records:
Since February 1, 2014, the claimant has had the following severe impairments: fibromyalgia, migraine headaches, depressive disorder, and anxiety disorder ...
The claimant's migraine headache symptoms do not satisfy the criteria of any listing[] under section 11.00 et seq.
The claimant sought emergency treatment for migraine headache symptoms on April 17, 2014. Physical and neurological examination at that time yielded no abnormal findings, and the claimant was discharged in improved condition following rehydration and administration of conservative medication ...(Tr. 34, 37-38). The ALJ considered Plaintiff's impairments of migraines and her neurological records. The ALJ found Plaintiff had the RFC to perform:
July 2014 neurology outpatient notes reflect the claimant's reports that the frequency and severity of her headaches had been reduced with medication, though she continued to experience occasional breakout symptoms. Treatment recommendation at that time was limited to adjustment of the claimant's medication dosage ...
The claimant again sought emergency treatment for migraine headache symptoms on September 25, 2014. Clinical observation reflected no significant physical abnormality or functional deficiency, and the claimant's condition again improved with initial conservative treatment ...
Neurology records from February 10, 2015 document findings of full strength, sensation and motor function in all areas, though the claimant reported experiencing ongoing headaches. Treatment recommendation at that time was limited to adjustment of the claimant's medication regimen ...
The claimant indicated that she was experiencing only occasional headaches (with no significant light or noise sensitivity, fatigue, or dizziness) and had generally improved cognition overall. In September 2016, the claimant reported increased headaches, which she associated with stress-related to school starting and the recent death of a family member. Physical and neurologic examination at that time noted no abnormal findings, and a treatment recommendation was limited to restarting the claimant on conservative medication. By January 2017, the claimant reported some improvement in her headache symptoms.
medium work ... except the claimant can understand, remember, and carry out only simple instructions; can make judgments on simple work-related decisions; can respond appropriately to usual work situations and to changes in a routine work setting; can maintain attention and concentration for two-hour segments over an eight-hour period; and she would be able to complete a normal work week without excessive interruptions from psychologically or physically based symptoms.(Tr. 35). The ALJ reviewed the medical evidence regarding Plaintiff's history of headaches prior to formulating the RFC. The ALJ also found Plaintiff's migraine headaches to be a severe impairment. (Tr. 34). Although the ALJ did not specifically mention a "brain injury," the ALJ reviewed Plaintiff's neurological records, as cited above. (Tr. 34, 37-38). Moreover, Plaintiff testified before the ALJ regarding an accident and concussion at the administrative hearing. (Tr. 53). The Defendant notes in Dr. Bramely's records, Plaintiff had been in an automobile accident in about February 2016. (Def. Br. at 28) (Doc. 16) (citing Tr. 785). However, by May 2016, Plaintiff reported to Dr. Bramley she was feeling better. (Tr. 783). Dr. Bramley expected Plaintiff's minor concussion symptoms would resolve over the next few months. (Tr. 784). In September 2016, Dr. Bramley wrote Plaintiff's concussion symptoms had resolved. (Tr. 812). Accordingly, Plaintiff's post-concussion symptoms lasted, at most, about seven months, which is shorter than the 12-month durational requirement to be found disabled. See 20 C.F.R. § 416.909.
C. Plaintiff's Work and School History
Plaintiff contends the ALJ erred in failing to find Plaintiff's work and school history constituted unsuccessful work attempts. (Pl. Br. at 2-3). In the decision, the ALJ made the following observations regarding Plaintiff's work and school history:
On May 17, 2016, the claimant reported that she had finished up her college courses and final examinations, and had achieved a grade point average of around 3.6 ...
The [ALJ] notes that the claimant was given an accommodation during the fall 2014 semester which allowed her to take extra time on exams and quizzes. In May 2016, the claimant's physician opined that the claimant would not likely require further accommodations ...
Overall, the medical evidence of record does not support a conclusion that the claimant has consistently experienced functional limitations after February 1, 2014 which would prevent her from engaging in the range of work activity described in the above finding. At the hearing, the claimant testified that she was currently enrolled in college courses, but that she was having difficulties with academic performance due to migraines and absences. The claimant further testified to experiencing significant pain and fatigue related to fibromyalgia which impaired her ability to engage in daily activities. With regarding to her mental health symptoms, the claimant testified to having paranoia in social situations and compulsive thoughts which affected her concentration. The [ALJ] finds that the claimant's allegations and testimony regarding the limiting effects of her symptoms are not fully consistent with the objective medical evidence including her treatment
history, examination reports, treatment provider notes, and demonstrated functioning over the course of the period at issue. In general, the claimant has reported experiencing effective symptomatic mitigation from intermittent and conservative treatment, has demonstrated no significant deficiency in physical or mental functioning on clinical examination, and has reported engaging in a range of activities which is not consistent with a finding of disabling restriction ...(Tr. 38-39 & n.1). Plaintiff contends the ALJ erred in failing to find Plaintiff's work and school history constituted unsuccessful work attempts. (Pl. Br. at 2-3). Plaintiff also contends the ALJ did not properly consider her young age. (Pl. Br. at 6-7). However, the ALJ found in the decision Plaintiff has at least a high school education and completed one year of college. (Tr. 39). The ALJ found Plaintiff is a younger individual age 18-49 and has no past relevant work. Id. In making these findings, the ALJ followed step five of the five-step sequential evaluation process:
The claimant has no past relevant work. (20 C.F.R. § 416.965).
The record does not reflect any earnings at the level of substantial gainful activity.
The claimant ... is a younger individual age 18-49. (20 C.F.R. § 416.963).
The claimant has at least a high school education and is able to communicate in English. (20 C.F.R. § 416.964).
The claimant has reported completing at least one year of college.
Transferability of job skills is not an issue because the claimant does not have past relevant work. (20 C.F.R. § 416.968).
If we find that you cannot do your past relevant work because you have a severe impairment(s) (or you do not have any past relevant work), we will consider the same residual functional capacity assessment we made under paragraph (e) of this section, together with your vocational factors (your age, education, and work experience) to determine if you can make an adjustment to other work. (See § 416.960(c).) If you can make an adjustment to other work, we will find you not disabled.20 C.F.R. § 416.920(g)(1). The ALJ's decision fulfilled the requirements of the regulations.
Younger person. If you are a younger person (under age 50), we generally do not consider that your age will seriously affect your ability to adjust to other work. 20 C.F.R. § 416.963.
D. Plaintiff's Marijuana Use
Plaintiff contends the ALJ erred in failing to consider Plaintiff's use of marijuana assists her symptoms. (Pl. Br. at 3). In the decision, the ALJ made the following observations regarding Plaintiff's marijuana use:
The medical evidence does not indicate that the claimant's marijuana abuse has resulted in any functional impact during the period at issue. This impairment is accordingly assessed as nonsevere.(Tr. 34). The ALJ reviewed Plaintiff's testimony and the record. Plaintiff contends the ALJ erred in failing to consider Plaintiff's use of marijuana assists her symptoms. (Pl. Br. at 3). However, the ALJ noted in the decision the medical evidence did not indicate Plaintiff's marijuana use had any functional impact, and thus, the ALJ found Plaintiff's marijuana use as nonsevere. (Tr. 34). Therefore, the ALJ did not find Plaintiff's marijuana use prohibited her from being found disabled:
the ALJ clearly did not rely on Plaintiff's use of drugs and alcohol as a basis for denying his application. Quite to the contrary, the ALJ took into consideration all of the limitations from all of his impairments and found that, even with Plaintiff's continued marijuana use, he would be able to sustain a full-time job, albeit on a limited basis. In other words, whereas the claimants in the referenced cases suffered increased symptoms with drug use that resulted in potential disability, the ALJ in this matter found that Plaintiff's ongoing marijuana use and anxiety disorders still left him with the residual functional capacity to perform substantial gainful activity in the national economy. Having made such a disability determination, the ALJ had no legal obligation to engage in the materiality analysis of 20 C.F.R. § 416.935(b).Ellow v. Astrue, 2013 WL 159919, at *5 (E.D. Pa. Jan. 15, 2013). Similarly, in this case, the ALJ found Plaintiff's marijuana use as a nonsevere impairment, and thus, the ALJ did not have to engage in the materiality analysis of 20 C.F.R. § 416.935(b).
E. Weight to Treating Therapist and RFC for Simple Work
Plaintiff contends the ALJ erred in failing to accord weight to Plaintiff's self-reports of mental health symptoms to her therapist, Anne Reisinger. (Pl. Br. at 6). In the decision, the ALJ reviewed the opinion of Plaintiff's treating therapist prior to evaluating the RFC:
In a form completed on March 25, 2015, the claimant's counselor Ann Reisinger, LCSW, opined that the claimant would have marked limitation in the ability to interact appropriately with others, and extreme difficulty responding appropriately to usual work situations and changes in the work setting. Ms. Reisinger indicated that the claimant's social anxiety made it difficult for her to be in new social situations and behave appropriately around claimant's reporting, with no other clinical findings noted ...(Tr. 38-39). In giving little weight to the opinion of Ms. Reisinger, the ALJ noted it appeared inconsistent with Plaintiff's academic participation or reported ability to engage in activities such as shopping in stores and socializing with friends. Id. at 39. Moreover, the ALJ gave significant weight to the opinions of Dr. Hoffman and Dr. Small, who found Plaintiff's mental impairments resulted in no more than moderate limitations and Plaintiff remained able to understand, remember, and carry-out simple one-and-two-part job instructions and perform simple, routine tasks on a sustained basis. (Tr. 36, 587-89, 630-32). "The ALJ's decision to afford the state agency physician's opinion significant weight is also supported by substantial evidence. The ALJ determined it was based on a broader record than the treating physician's, and consistent with the cumulative evidence." Miller v. Comm'r of Soc. Sec., 719 F. App'x 130, 134 (3d Cir. 2017). Thus, the ALJ considered the opinion of Plaintiff's treating therapist in compliance with the regulations and explained the reasons for according the opinion little weight. See § 404.1527(c)(4) (ALJ must consider whether an opinion is consistent with the record as a whole); and § 404.1527(c)(3) (opinions receive weight based on their supportability).
In forming the RFC assessment, the [ALJ] has given substantial weight to the opinions of Dr. Popat and Dr. Mesaros. The opinions of these medical sources were supported by a clear articulation of the claimant's treatment history and documented clinical findings as of the dates of these assessments; new evidence received as of the hearing level does not clearly reflect any significant deterioration of the claimant's physical condition or functional capabilities. With regard to the claimant's mental functioning, significant weight has been afforded to the opinions of Dr. Hoffman and Dr. Small. These reviewing psychologists supported their functional assessments with a discussion of the claimant's clinical presentation and demonstrated functioning, and the degree of capability and limitation assessed is generally consistent with subsequent evidence including mental status examinations, the claimant's reported symptoms, and her ability to effectively participate in college classes. Little weight has been given to the opinion of Ms. Reisinger ... The form completed by Ms. Reisinger indicates that the basis for the assessed restrictions was limited to the claimant's reported difficulties; the [ALJ] finds that these reports and assessments regarding the claimant's ability to interact effectively with others are not fully consistent with the claimant's academic participation or reported ability to engage in activities such as shopping in stores and socializing with friends.
Although the ALJ's RFC finding did not include a limitation to one to two-step instructions, as identified by the state agency psychologist's opinion (Tr. 589), the omission of this specific limitation would not change the outcome of the case. In the ALJ's decision, all three jobs the VE identified Plaintiff could perform contained a GED reasoning level of 1. (Tr. 40). See Factory Helper, DOT No. 529.686-034, 1991 WL 674724; Cleaner, Housekeeping, DOT No. 323.687-014, 1991 WL 672783; and Bakery Worker, Conveyor Line, DOT No. 524.687-022, 1991 WL 674401. GED reasoning level 1 involves the ability to "Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job." See id. Therefore, the ALJ properly considered Plaintiff's mental impairments and any error for the failure to include a limitation to one to two-step instructions in the RFC was harmless. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.").
Moreover, although the ALJ is required to consider all opinion evidence, as a social worker, Ms. Reisinger is a non-acceptable medical source. See 20 C.F.R. § 416.913(a),(d); 20 C.F.R. § 404.1502 (Effective: March 27, 2017). --------
In giving little weight to the opinion of Ms. Reisinger, the ALJ observed the social worker noted her evaluation was based on Plaintiff's self-report. Id. at 38. The Third Circuit has found an ALJ may come to this conclusion:
"The ALJ "may choose whom to credit" when considering conflicting evidence so long as he does not "reject evidence for no reason or for the wrong reason." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993) ... As the ALJ recognized, Dr. Hahn's assessment of Hevner's limitations appeared to be largely based on Hevner's self-reported medical history.Hevner v. Comm'r Soc. Sec., 675 F. App'x 182, 185 (3d Cir. 2017). "[T]he mere memorialization of a claimant's subjective statements in a medical report does not elevate those statements to a medical opinion." Morris v. Barnhart, 78 F. App'x 820, 824 (3d Cir. 2003) (affirming No. 03- 1332, (M.D. Pa. Jan. 2, 2003)) (citing Craig v. Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996) (holding that a physician's notation of claimant's complaints does not "transform" subjective complaint into "clinical evidence") ("If this were true, it would completely vitiate any notion of objective clinical medical evidence.")); see also Hatton v. Comm'r of Soc. Sec., 131 F. App'x 877, 879 (3d Cir. 2005) ("a medical source does not transform the claimant's subjective complaints into objective findings simply by recording them") (citing Craig, 76 F.3d at 590 n. 2. In fact, "[a]n ALJ may discredit a physician's opinion on disability that was premised largely on the claimant's own accounts of her symptoms and limitations when the claimant's complaints are properly discounted." Morris, 78 F. App'x at 824 (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). Therefore, the ALJ reasonably gave little weight to the opinion of Ms. Reisinger, who relied on Plaintiff's self-report, and instead the ALJ gave significant weight to the opinion of the State Agency physicians. (Tr. 38-39).
F. The Hypothetical Question to the VE and Plaintiff's Limitations
1. Performance of Other Work
Plaintiff contends the ALJ erred at Step Five of the sequential evaluation process by finding Plaintiff could perform other work. (Pl. Br. at 6-7). The ALJ questioned the VE with the hypothetical as to whether a person 21 years of age with a high school education and no past work experience could perform medium work and be able to understand, remember, and carry out simple instructions, make judgments on simple, work-related decisions, respond to usual work situations and changes in the routine setting, interact appropriately with the public and coworkers and supervisors, maintain attention and concentration for two-hour segments over an eight-hour period, and complete a normal work week without excessive interruptions from psychologically or physically based symptoms. (Tr. 54-55). The VE testified Plaintiff could perform the medium exertion level job of Factory Helper, DOT No. 529.686-034, 1991 WL 674724; and the light exertion level jobs of Cleaner, Housekeeping, DOT No. 323.687-014, 1991 WL 672783 and Bakery Worker, Conveyor Line, DOT No. 524.687-022, 1991 WL 674401. Id. at 55. The ALJ found the medical evidence and the record did not support Plaintiff's allegations of disabling limitations. (Tr. 38-39). See SSR 96-8p, 1996 WL 374184, at *7 (addressing the requirements for articulating RFC finding). Thus, the ALJ based the RFC findings on substantial evidence.
Plaintiff argues the ALJ failed to consider the VE's testimony, suggesting if Plaintiff was off task for more than 15 percent of the day she would be unable to perform a job. (Pl. Br. at 6) (citing Tr. 56). Plaintiff further argues the VE testified if Plaintiff missed more than 1.3 days per month would exceed employer tolerance for absenteeism. (Pl. Br. at 6) (citing Tr. 56). However, Plaintiff does not point to medical evidence in the record to support the type of disabling conditions presented to the VE. In November 2017, the Third Circuit found an ALJ need not rely on VE hypotheticals unsupported by the record:
The expert testified that a hypothetical individual of Minch's age, education, work experience, and residual functional capacity could perform certain light work in unskilled positions that do not require face-to-face contact with the public, work as part of a team, or frequent interaction with a supervisor. When asked by the ALJ whether such an individual could perform "work which is not repetitive in nature, ... in an effort for the person not to be performing the same movement with their body over and over again all day long," the expert stated that there were no such entry level positions available. Minch faults the ALJ for "disregard[ing]" the answer to the latter hypothetical question. Notably, however, the record did not credibly establish that Minch's limitations required that he perform non-repetitive movements. Therefore, the ALJ properly did not rely on that response. Cf. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (stating that the "ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations.").Minch v. Comm'r Soc. Sec., 715 F. App'x 153, 158 (3d Cir. 2017). Thus, the ALJ found the objective medical evidence did not support Plaintiff's allegations of disabling limitations. The ALJ's decision fulfilled the requirements of the regulations.
Therefore, the record provided substantial evidence to support the ALJ's decision. It is not the reviewing court's position to reweigh the evidence or substitute judgment. As the Third Circuit has explained:
The review of the ALJ's decision is "limited to determining whether that decision is supported by substantial evidence." Hartranft, 181 F.3d at 360. Substantial evidence is less than a preponderance of the evidence, but "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. In determining whether substantial evidence exists, this court cannot re-weigh the evidence or substitute its judgment for that of the ALJ. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Thus, we will uphold the ALJ's decision even if there is contrary evidence that would justify the opposite conclusion, as long as the "substantial evidence" standard is satisfied. Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).Johnson v. Comm'r of Soc. Sec., 497 F. App'x 199, 201 (3d Cir. 2012). Accordingly, the decision provides substantial evidence a reasonable mind might accept as adequate to support the ALJ's conclusion Plaintiff could perform a significant number of jobs in the national economy.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
V. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.DATED: February 18, 2020
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE