Opinion
CIVIL ACTION NO. 3:18-CV-01926
01-10-2020
DEBRA A. CLAY, Plaintiff, v. ANDREW M. SAUL, Defendant.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
Plaintiff Debra A. Clay brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b). For the following reasons, it is respectfully recommended that the Commissioner's decision be AFFIRMED. I. BACKGROUND AND PROCEDURAL HISTORY
In August 2016, Clay protectively filed an application for Title II disability insurance benefits, claiming disability beginning April 1, 2005, due to right rotator-cuff issues, lower back pain, seizures, brain lesions, Lyme disease, and possible multiple sclerosis. (Doc. 5-7, at 12). The Social Security Administration initially denied the application on November 4, 2016, prompting Clay's request for a hearing, which Administrative Law Judge (ALJ) Richard E. Guida held on February 14, 2018. (Doc. 5-2, at 63). In a written decision dated April 26, 2018, the ALJ determined that Clay is not disabled and therefore not entitled to benefits under Title II. (Doc. 5-2, at 72). The Appeals Council denied Clay's request for review. (Doc. 5-2, at 1).
On October 3, 2018, Clay filed the instant action. (Doc. 1). The Commissioner responded on December 11, 2018, providing the requisite transcripts from Clay's disability proceedings. (Doc. 4) (Doc. 5). The parties then filed their respective briefs (Doc. 8) (Doc. 9), with Clay alleging five bases for reversal or remand (Doc. 8, at 1-2). II. STANDARDS OF REVIEW
To receive benefits under Title II of the Social Security Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509. To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive Title II benefits, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(a); 20 C.F.R. § 404.131.
A "physical or mental impairment" is defined as an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
A. ADMINISTRATIVE REVIEW
In evaluating whether a claimant is disabled, the "Social Security Administration, working through ALJs, decides whether a claimant is disabled by following a now familiar five-step analysis." Hess v. Comm'r Soc. Sec., 931 F.3d 198, 200-01 (3d Cir. 2019). The "burden of proof is on the claimant at all steps except step five, where the burden is on the Commissioner of Social Security." Hess, 931 F.3d at 201; see 20 C.F.R. § 404.1512(a)(1). Thus, if the claimant establishes an inability to do past relevant work at step four, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. § 404.1512(a)(1).
B. JUDICIAL REVIEW
The Court's review of a determination denying an application for Title II benefits is limited "to considering whether the factual findings are supported by substantial evidence." Katz v. Comm'r Soc. Sec., No. 19-1268, 2019 WL 6998150, at *1 (3d Cir. Dec. 20, 2019). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). The quantum of proof 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 if the ALJ ignores countervailing evidence or fails to resolve a conflict created by such 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).
The question before the Court, therefore, is not whether Clay is disabled, but whether the Commissioner's determination that Clay is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence."); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary). "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). If "the ALJ's findings of fact . . . are supported by substantial evidence in the record," the Court is bound by those findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). III. THE ALJ'S DECISION
In his written decision, the ALJ determined that "[Clay] was not under a disability, as defined in the Social Security Act, at any time from April 1, 2005, the alleged onset date, through December 31, 2006, the date last insured." (Doc. 5-2, at 72). The ALJ reached this conclusion after proceeding through the five-step sequential analysis provided in 20 C.F.R. § 404.1520(a)(4).
A. STEP ONE
At step one of the five-step analysis, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If a claimant is engaging in substantial gainful activity, the claimant is not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is defined as work activity requiring significant physical or mental activity and resulting in pay or profit. 20 C.F.R. § 404.1572(a)-(b). The ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574(a)(2). Here, the ALJ determined that "[Clay] did not engage in substantial gainful activity during the period from her alleged onset date of April 1, 2005 through her date last insured of December 31, 2006." (Doc. 5-2, at 65).
B. STEP TWO
At step two, the ALJ must determine whether the claimant has a medically determinable impairment—or a combination of impairments—that is severe and meets the 12-month duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits" the claimant's "physical or mental ability to do basic work activities," the ALJ will find that the claimant does not have a severe impairment and is therefore not disabled. 20 C.F.R. § 404.1520(c). If a claimant establishes a severe impairment or combination of impairments, the ALJ considers step three. Here, the ALJ found that Clay had two medically determinable impairments—degenerative disc disease and degenerative joint disease—both severe. (Doc. 5-2, at 65).
C. STEP THREE
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in the version of 20 C.F.R. Part 404, Subpt. P, App. 1 that was in effect on the date of the ALJ's decision. 20 C.F.R. § 404.1520(a)(4)(iii). The sections in this appendix are commonly referred to as "listings." Here, the ALJ determined that neither of Clay's impairments, considered individually or collectively, met or medically equaled the severity of a listed impairment. (Doc. 5-2, at 66). The ALJ specifically considered section 1.00 of the appendix (musculoskeletal system disorders) and determined that Clay's impairments did not meet or medically equal any of those listings for two reasons: (1) Clay's degenerative disc and joint diseases "were not associated with the requisite clinical and/or laboratory signs and findings"; and (2) "no medical source designated to make medical equivalency findings has stated that the severity of [Clay's] impairments medically equaled the requirements" of a listing. (Doc. 5-2, at 66); see 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00.
D. RESIDUAL FUNCTIONAL CAPACITY
Between steps three and four, the ALJ evaluates the claimant's residual functional capacity (RFC), crafted upon consideration of all the evidence presented. At this intermediate step, the ALJ considers all claimant's symptoms and "the extent to which [they] can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(a). Here, Clay alleged that her medical impairments affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel, and climb stairs, complete tasks, concentrate, understand, follow instructions, use her hands, and retain information. (Doc. 5-7, at 36). The ALJ found that while Clay's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Clay's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Doc. 5-2, at 68). He then went on to detail the record evidence.
In 2001, Clay sustained a work-related injury that resulted in severe neck, right shoulder, and right arm pain. (Doc. 5-8, at 33). An MRI suggested a rotator cuff tear, but that diagnosis was found to have been inaccurate during Clay's admission for surgery in December 2003. (Doc. 5-8, at 33). The operating physicians discovered that Clay had a very unremarkable rotator cuff but concluded that she had shoulder impingement syndrome and therefore performed an acromioplasty. (Doc. 5-8, at 33). To date, Clay asserts that this surgical procedure has done nothing to significantly improve her pain. (Doc. 5-8, at 33).
Clay complained of longstanding and persistent back pain for which she underwent two MRIs of her cervical spine. (Doc. 5-11, at 11) (Doc. 5-8, at 33). A February 2001 MRI revealed some degenerative changes at discs C5-6 and C6-7, but no major disc herniations were identified. (Doc. 5-8, at 33). The second MRI, conducted in June 2005, also revealed degenerative changes at C5-6 and C6-7 but with evidence of multilevel foraminal narrowing and a posterior disk osteophyte complex indenting the thecal sacs lightly at C6-7 and somewhat at C5-6. (Doc. 5-8, at 33).
Clay was frequently seen by her treating physician, Dr. victor Faralli. (Doc. 5-8, at 3-75). In January 2003, upon examining Clay, Dr. Faralli opined that Clay may not return to work until further notice. (Doc. 5-8, at 19). The ALJ afforded this opinion little weight because it was rendered well before the alleged onset date and prior to Clay's right shoulder surgery. (Doc. 5-2, at 69). Clay visited Dr. Faralli in November 2003, December 2003 (twice), and February 2004. (Doc. 5-2, at 69). During the November and December 2003 visits, Dr. Faralli opined that Clay would not be permitted to return to work, and during the February 2004 visit, Dr. Faralli opined that Clay may not return to work for an eight-hour day. (Doc. 5-2, at 69) (Doc. 5-8, at 20-23). The ALJ afforded these statements limited weight, as they were made during a post-surgery recovery period. (Doc. 5-2, at 69). Upon examining Clay in April 2004 and August 2004, Dr. Faralli opined that Clay could return to light work on permanent restricted duty (i.e., with right shoulder limitations) and then opined that Clay was limited to light work with no use of the right arm at shoulder height or above. (Doc. 5-2, at 69). The ALJ afforded these opinions some weight because, while these statements were rendered prior to the alleged onset date, they appeared to suggest Clay's ability to perform light work with no use of the right upper extremity at shoulder height or above. (Doc. 5-2, at 69). These opinions were therefore consistent with other record evidence. (Doc. 5-2, at 69).
In July 2005, Dr. Faralli again examined Clay and concluded that She should pursue a light level of activity with about a five-pound lifting restriction and clerical type activities. (Doc. 5-2, at 69-70). He provided a note indicating that Clay "was suitable for light duty work and this is regarding only her right shoulder. That would be four hours a day with avoiding highly repetitive activities and basically with limited weight bearing." (Doc. 5-2, at 70). The ALJ afforded little weight to these statements because Dr. Faralli had provided no explanation as to why Clay's capacity was reduced from his 2004 work notes, as the cervical MRI did not show any dramatic change from the 2001 MRI. (Doc. 5-2, at 69-70). Acknowledging Dr. Faralli's determination that Clay had very good range of motion of her right shoulder, particularly when she was below shoulder level, the ALJ noted, "it appears that [Dr. Faralli] was talking about the right shoulder only, and [Clay] ha[d] no any apparent limitation with her left shoulder." (Doc. 5-2, at 70). Therefore, the ALJ concluded that Dr. Faralli had failed to explain "why the combined arms could not handle lifting up to 20 pounds occasionally full-time." (Doc. 5-2, at 70).
During an April 2006 examination conducted by Dr. Faralli, Clay exhibited a well-healed incision over her shoulder, fairly fluid range of motion of her shoulder, diffuse pain about her right shoulder, and an occasional complaint of paresthesia in her right hand. (Doc. 5-8, at 32). Deep tendon reflexes were 2+ at the biceps, 1+ at the triceps and brachial radials on the right side. (Doc. 5-8, at 32). Dr. Faralli explained to Clay that he could offer very little more to help with her shoulder other than some intermittent Cortisone injections, which he believed could have provided some relief. (Doc. 5-2, at 69). He suggested that Clay undergo a neurosurgical evaluation of the cervical area to explore the remote possibility that cervical disc disease was contributing to her symptom complex. (Doc. 5-2, at 69).
In October 2016, Clay's physical therapist, David Potena, prepared a physical functional capacity questionnaire. (Doc. 5-8, at 49). In Potena's estimation, Clay was limited as follows: (1) in an eight-hour workday, Clay could sit and stand for two hours, would require periods of walking around, and would frequently require unscheduled breaks; (2) she could lift less than ten pounds rarely and never ten or more pounds; (3) she could only occasionally look down, turn her head right or left, and hold her head in a static position and rarely look up; and (4) she had significant limitations with her ability to reach, handle, or finger. (Doc. 5-8, at 45-51). The ALJ afforded little weight to Potena's assessment since Potena was not considered a recognized source and because his evaluation was prepared almost ten years after the date last insured. (Doc. 5-2, at 70).
In November 2016, Clay was examined by Doctors Narendra Dhaduk and Candelaria Legaspi. Dr. Dhaduk opined that Clay could sit for six hours and stand and walk for approximately two hours. (Doc. 5-8, at 51). Dr. Dhaduk determined that in an eight-hour workday, Clay did not need a period of walking around, nor was Clay required to shift positions at will from sitting, standing, or walking. (Doc. 5-8, at 51). Dr. Dhaduk further opined that Clay was able to lift ten pounds frequently and twenty pounds occasionally but exhibited significant limitations with reaching, handling, and fingering stemming from right-shoulder issues. (Doc. 5-8, at 52). Affording this opinion little weight, the ALJ observed that Dr. Dhaduk had first examined Clay in January 23, 2014, approximately seven years after the date last insured, and rendered this opinion almost ten years after the date last insured. (Doc. 5-2, at 70). Dr. Legaspi, a State agency consultant, found insufficient medical evidence to evaluate Clay's claim of disability for the April 1, 2015-to-December 31, 2016 period. (Doc. 5-4, at 6). The ALJ afforded little weight to Dr. Candelaria's determination because the medical evidence of record included enough evidence to support a finding that Clay had severe impairments during the insured period. (Doc. 5-2, at 69).
Around the same time, i.e., November 2016, Clay prepared a functional assessment report. (Doc. 5-7, at 31). In her report, Clay indicated that she suffered from several issues relating to her health and neurological issues, all of which kept her from working on a sustained basis, e.g., possible multiple sclerosis diagnosis, the lesions on her brain, and Lyme disease. (Doc. 5-2, at 66). She complained of constant pain, which wakes her from sleeping and causes difficulties dressing, bathing, and grooming her hair; noted lower back pain and right shoulder pain, which had become progressively worse since its inception; and stated that all physical activity serves to aggravate her pain, more so in the morning hours. (Doc. 5-2, at 39, 67). Medication does little to relieve her pain, nor did her resort to a right shoulder immobilizer, TENS unit, heating pad, and physical therapy. (Doc. 5-2, at 67). Regarding activities of daily living, Clay stated that she rests a lot during the day, tries to complete small tasks when able, does not prepare her own meals, engages in light house cleaning, folds laundry, drives a car, and does not shop. (Doc. 5-2, at 67). Her husband assists her with activities of daily living, including bathing her, cleaning, paying bills, and helping her dress. (Doc. 5-2, at 67-68).
Clay continues to suffer from severe pain in her upper right extremity. (Doc. 5-7, at 36). Specifically, Clay suffers from chronic problems with her right shoulder, including severe osteoarthritis, numbness or paresthesia in both her right arm and right hand, popping sensations and tearing in her right arm, and limited use of her right arm. (Doc. 5-8, at 28). Clay has received therapy, injections, and medications and she exercises, but her right shoulder pain has not improved. (Doc. 5-9, at 39). Since 2005, Clay has been taking Oxycodone, an opioid narcotic, which she uses daily, sometimes up to three times a day. (Doc. 5-9, at 17). She also requires intermittent use of shorter acting narcotics. (Doc. 5-8, at 33). Clay postulates that the medication makes her feel tired and sleepy and causes her to fall asleep throughout the day. (Doc. 8, at 23). She has tried other pain medications, such as Fentanyl, a stronger opioid narcotic, but ceased use of the drug, asserting that the medication was too potent. (Doc. 5-3, at 17).
After weighing and considering the evidence, the ALJ determined that, "through the date last insured, [Clay] had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she was precluded from overhead reaching with the right (dominant) upper extremity." (Doc. 5-2, at 66).
E. STEP FOUR
Step four requires the ALJ to determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is defined as work that the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b). "If the claimant can perform his past relevant work despite his limitations, [s]he is not disabled." Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)). Here, based on testimony adduced from a vocational expert at Clay's administrative hearing, the ALJ determined that Clay was unable to perform her past relevant work as a restaurant manager and thus proceeded to step five of the sequential analysis. (Doc. 5-2, at 70).
F. STEP FIVE
At step five of the sequential analysis, the ALJ considers the claimant's age, education, and work experience to determine whether the claimant can make the adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If a claimant can adjust to other work, they will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v). Here, considering Clay's age (50 years old on the date last insured and "closely approaching advanced age" during the relevant period), education (limited), work experience (semi-skilled), and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Clay could have performed. (Doc. 5-2, at 70-71). In making this determination, the ALJ relied on the expertise of the vocational expert, who testified that Clay could have performed the requirements of representative occupations such as mail clerk/non-government, office helper, and marker, all unskilled, light-exertion jobs with at least 128,000 positions existing nationally and classified as Specific Vocational Preparation level 2. (Doc. 5-2, at 71).
"Special Vocational Preparation is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility need for average performance in a specific job-worker situation." See Appendix C, Dictionary of Occupational Titles, available at www.occupationalinfo.org/appendxc_1.html.
Given the foregoing analysis, the ALJ determined that Clay was not disabled and therefore denied her application for benefits. (Doc. 5-2, at 72). IV. DISCUSSION
Clay advances five arguments on appeal, arguing that the ALJ failed to adequately consider (1) limitations resulting from Clay's severe impairments of degenerative joint and disc diseases; (2) limitations resulting from Clay's other impairments, i.e., right shoulder pain, cervical stenosis, brain lesions, seizures, Lyme disease, possible multiple sclerosis, and headaches, some of which were incorrectly identified as non-severe; (3) opinions of treating sources, including residual functional capacity evaluations, which the ALJ gave insufficient weight; (4) ongoing side effects of Clay's medications; and (5) medical-vocational grid rules in light of the fact that Clay was 50 years old as of October 17, 2016. (Doc. 8, at 1-2). In response, the Commissioner maintains that the ALJ's decision is supported by substantial evidence and is in accordance with the law and regulations. (Doc. 4, at 4, ¶ 10) (Doc. 9).
Considered within the framework of the five-step sequential analysis, Clay's arguments fall into three categories: (1) the ALJ erred, at step two, in finding that several of Clay's impairments were non-severe; (2) the ALJ's RFC assessment did not adequately reflect Clay's limitations, treating-source opinions, and medication-related side effects; and (3) the ALJ failed, at step five, to properly consider medical-vocational grid rules.
A. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S STEP-TWO DETERMINATION
Clay challenges the ALJ's analysis at step two, where the ALJ did not assess the severity of many of Clay's alleged impairments except to note that Clay's degenerative joint and disc diseases were severe. Regarding Clay's seizures, lesions on the brain, Lyme disease, possible multiple sclerosis, and headaches, the ALJ determined that these were not medically determinable impairments because they "were not even noted until several years after the date last insured"—no earlier than 2013. (Doc. 5-2, at 65).
While not included in her initial application for benefits, Clay asserted headache-related issues at her administrative hearing. (Doc. 5-2, at 65).
The regulations provide that "[a]n impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521. To establish the requisite level of limitation, a claimant "must support his or her contentions with objective medical evidence." Sassone v. Comm'r of Soc. Sec., 165 F. App'x 954, 958 (3d Cir. 2006). No "symptom or combination of symptoms can be the basis for a finding of disability" before the date last insured "unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment." Perez v. Comm'r of Soc. Sec., 521 F. App'x 51, 55 (3d Cir. 2013) (quoting SSR 96-4p, 1996 WL 374187, at *1 (July 2, 1996)) (internal quotation marks omitted). Moreover, there must be "evidence that the condition significantly limited his ability to do basic work activities during the insured period." Kirkland v. Colvin, No. CIV.A. 14-224, 2015 WL 5732178, at *1 (W.D. Pa. Sept. 30, 2015) (quoting Perez, 521 F. App'x at 55 (3d Cir. 2013)).
Basic work activities means "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting." 20 C.F.R. § 404.1521.
The issue squarely before the Court, therefore, is whether there is substantial evidence to support the ALJ's determination that Clay failed to provide objective medical evidence demonstrating the presence of (1) a medically determinable impairment (or combination of impairments); (2) that significantly limited her physical or mental ability to do basic work activities during the period from April 1, 2015, to December 31, 2006. In addressing this issue, the Court is mindful that the "burden on a claimant . . . is de minimis and at this stage, an applicant need only demonstrate something beyond a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Perez, 521 F. App'x at 55 (internal quotation marks omitted). The Commissioner's "determination to deny an applicant's request for benefits at step two should [therefore] be reviewed with close scrutiny" but is "to be upheld if supported by substantial evidence on the record as a whole." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (internal quotation marks omitted).
Clay argues that the ALJ failed to acknowledge that Clay's "issues with her right arm/shoulder/hand" were severe and overlooked treating-source medical records, which, although generated in 2017 and 2018 by a doctor who had treated Clay in 2005 and 2006, refer to "right shoulder issues" that had been "chronic since 2003." (Doc. 17, at 8). She also references her own statements concerning her symptoms and other medical evidence, including the following: (1) pain and numbness in her right shoulder, arm, and hand, resulting in an inability to lift any amount of weight, stemming back to 2001; (2) the ineffectiveness of medications and treatment to ameliorate these issues; (3) daily headaches from neck pain in 2005 and 2006; (4) a 2009 MRI showing cervical stenosis; (5) MRI studies from 2005 and 2006 confirming foraminal stenosis and radiculopathy; and (6) treating-source opinions in 2005 and 2006 indicating Clay should be restricted to lifting, at the most, five pounds.
Contrary to Clay's contention, there does not appear to be any record evidence—relating to the relevant period, i.e., April 1, 2005, to December 31, 2006—suggesting seizures, lesions on the brain, Lyme disease, or possible multiple sclerosis. Although Clay did testify to having suffered from headaches during the relevant period, Clay's reference to her testimony concerning headaches, without more, does not equate to objective medical evidence, and "under no circumstances may the existence of an impairment be established on the basis of symptoms alone." See SSR 96-4p. A corollary to this lack of evidence is the absence of evidence that any of these conditions significantly limited Clay's ability to do basic work activities during the insured period.
Clay's arguments concerning cervical radiculopathy, foraminal stenosis, and upper-extremity and neck impairments are unavailing for a different reason. As the Commissioner observes, while the ALJ did not explicitly identify these conditions as severe, medically determinable impairments, he "found [Clay's] associated degenerative disc disease of the cervical spine and degenerative joint disease of the shoulder severe" and "thoroughly considered [Clay's] right upper extremity and neck impairments and any resulting limitations in the later steps of the sequential evaluation process." (Doc. 9, at 14).
By definition, degenerative joint disease, also known as osteoarthritis, affects any joint, occurring most frequently in the knees, hips, lower back and neck; degenerative disc disease, which refers to symptoms of back or neck pain caused by wear-and-tear on a spinal disc, can in some cases cause weakness, numbness, and hot, shooting pains in the arms or legs; and cervical stenosis refers to compression of the spinal cord in the as a result of degenerative changes. See Arthritis Foundation. What is Osteoarthritis?, (Sept. 13, 2009), https://www.arthritis.org/about-arthritis/types/osteoarthritis/what-is-osteoarthritis.php.; Veritas health. Cervical stenosis definition, Spine-health, (Sept. 13, 2019), https://www.spme-health.com/glossary/cervical-stenosis; Veritas health. What is Degenerative Disc Disease?, Spine-health, (Sept. 13, 2019); https://www.spine-health.com/conditions/degenerative-disc-disease/what-degenerative-disc-disease; Veritas health. Cervical stenosis definition, Spine-health, (Sept. 13, 2019), https://www.spine-health.com/glossary/cervical-stenosis.
Even if the ALJ erred at step two, any error was harmless. If an ALJ finds one or more impairments to have been severe and continues to the remaining steps of the sequential analysis, the ALJ's "erroneous determination of an impairment's non-severity may constitute harmless error, provided that the impairment continues to be factored in." Rodriguez v. Berryhill, No. CV 17-6884-KM, 2019 WL 1013343, at *9 (D.N.J. Mar. 1, 2019) (emphasis added); see also Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 (3d Cir. 2007) ("Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless."); Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005) (failing to determine the severity of a condition at stage two was harmless because the ALJ properly considered it in the evaluation of the claimant's limitations). Here, for the reasons stated infra, the Court finds that the ALJ adequately considered these additional impairments in evaluating Clay's limitations.
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S RFC DETERMINATION
The bulk of Clay's arguments consists of an attack on the ALJ's RFC determination between steps three and four of the sequential analysis. As mentioned supra, Clay submits that the ALJ failed to consider limitations caused by all her impairments, improperly weighed treating-source opinions, and failed to address limitations caused by medication-related side effects, namely lethargy.
Assessing an individual's RFC falls within the purview of the ALJ. 20 C.F.R. § 404.1546(c); SSR 96-8P, 1996 WL 374184 (S.S.A. July 2, 1996). "[RFC] is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).'" Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir. 1999)). Specifically, one's RFC reflects the most that an individual can still do, despite his or her limitations, and is used at steps four and five to evaluative the claimant's case. 20 C.F.R. §§ 404.1520, 404.1545; SSR 96-8P, 1996 WL 374184 at *2. "[O]nce the ALJ has made this [RFC] determination, [a court's] review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence." Black v. Berryhill, No. 16-1768, 2018 WL 4189661 at *3 (M.D. Pa. Apr. 13, 2018).
When determining an individual's RFC, the ALJ must consider all the evidence of the record and, regardless of its source, "evaluate every medical opinion . . . receive[d]." Burnett, 220 F.3d at 121 (internal citations omitted); see 20 C.F.R. § 416.927(c); see also SSR 96-8P, 1996 WL 374182, at *2 ("RFC is assessed by adjudicators at each level of the administrative review process based on all of the relevant evidence in the case record, including information about the individual's symptoms and any 'medical source statements' . . . ."). Under the regulations, medical opinions are defined as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). If a conflict exists in the evidence, "the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). It is the duty of the ALJ to explain the rationale for the weight afforded to each medical opinion, as this allows for meaningful judicial review. Plummer, 186 F.3d at 429 ("The ALJ must consider all the evidence and give some reason for discounting the evidence that [the ALJ] rejects." (quoting Mason, 994 F.2d at 1066)).
Applying the above standard to the present record, the Court finds substantial evidence to support the ALJ's determination that Clay's assertions concerning her limitations were not entirely consistent with medical evidence relating to the period from April 1, 2005, to December 31, 2006. Specifically, the ALJ partially credited the 2004 opinions of Dr. Faralli—a treating provider on whose determinations Clay relies heavily throughout her brief—that Clay was able to perform light work with no use of the right upper extremity at shoulder height or above. The ALJ also referenced Dr. Faralli's notes (1) from 2005, which reflect, inter alia, "excellent active motion of [Clay's] right shoulder"; "at least 4+/5 motor strength in her right upper extremity"; "just a partial thickness tear in the rotator cuff"; "[h]er shoulder is doing very well"; "[s]he has a very good range of motion in her shoulder, particularly when she is below shoulder level"; and improvements with medication, e.g., Voltaren; and (2) from 2016, which reflect, inter alia, "she did not have a rotator cuff tear"; "[s]he had an MRI of her neck on two occasions and never had a major disk pathology"; and "she has 2+ biceps tendon reflex on the right a 1+ triceps and brachial radialis on the right." (Doc. 5-8, at 28-30 (emphasis added)).
Moreover, the ALJ provided adequate reasons for discounting other of Dr. Faralli's opinions. For example, although Dr. Faralli opined, in July 2005, that Clay "can probably pursue a light level of activity with about a five[-]pound lifting restriction and clerical type activities," he stated that this recommendation pertained "only [to] her right shoulder." (Doc. 5-8, at 30). Given the doctor's lack of an unequivocal medical directive, i.e., "probably," and the fact that he does not appear to have opined on the subject of Clay's capacity to lift using both arms, there is substantial evidence in the record to support the ALJ's assignments of different weights to Dr. Faralli's opinions. Likewise, the ALJ accounted for Clay's limitations by precluding her from performing overhead reaching with her right upper extremity. Another example is the ALJ's rationale that Dr. Faralli's post-surgery notes indicating Clay could not return to work did not demonstrate an inability to work indefinitely. (Doc. 5-8, at 20-23).
There is also substantial evidence to support the ALJ's decision to discount the opinion of Clay's physical therapist, David Potena, who provided a functional evaluation. Clay argues that the ALJ, in evaluating Potena's opinion, disregarded the treating physician rule. "A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time." Morales, 225 F.3d at 317 (internal quotation marks omitted). "A treating source's opinion is not entitled to controlling weight if it is 'inconsistent with the other substantial evidence in [the] case record.'" Scouten v. Comm'r Soc. Sec., 722 F. App'x 288, 290 (3d Cir. 2018) (alteration in original) (quoting 20 C.F.R. § 404.1527(c)(2)). Where the "ALJ provide[s] sufficient reasons for the weight given to the evidence from [a] . . . treating physician[]," which reasons, in most cases, can be set forth in a sentence or short paragraph, there is no basis for disturbing the ALJ's weight determination. Sponheimer v. Comm'r of Soc. Sec., 734 F. App'x 805, 807 (3d Cir. 2018).
In Clay's case, however, "the ALJ did consider . . . [Potena's opinion] and was not required to afford [it] controlling weight." See Hatton v. Comm'r of Soc. Sec. Admin., 131 F. App'x 877, 878 (3d Cir. 2005). This is so because "a physical therapist is not an acceptable medical source" to whom the "rules for evaluating acceptable medical source statements" would apply. Hatton, 131 F. App'x at 878. Physical therapists' statements or opinions "are entitled to consideration as additional evidence, but are not entitled to controlling weight." Potena's assessment here, presented as it is in check-box form, appears to be "simply a recitation of [Clay's] own subjective complaints" and therefore "not entitled to any weight." See Hatton, 131 F. App'x at 878. Even assuming Potena's conclusions found substantiation in notes elsewhere in the record, opinions presented in a check-box form—bereft of medical rationale—are "weak evidence at best." Mason, 994 F.2d at 1065. Potena's opinions are made all the weaker by the fact that they were made in 2017, whereas the date last insured was December 31, 2006. (See, e.g., Doc. 5-8, at 59). Finally, even assuming Potena was a treating source, the ALJ properly found his evaluation to have been "inconsistent with the other substantial evidence in [the] case record." See Scouten v. Comm'r Soc. Sec., 722 F. App'x 288, 290 (3d Cir. 2018) (alteration in original) (internal quotation marks omitted) (quoting 20 C.F.R. § 404.1527(c)(2)).
The ALJ also properly evaluated the remaining opinion evidence, disagreeing with the State agency consultant in favor of supporting Clay's allegations of severe impairments, and discounting the opinion of Dr. Dhaduk given it was rendered several years after the date last insured and given that Dr. Dhaduk had not even seen Clay until 2014. Nor did the ALJ overlook any other evidence of impairments—for example, Clay's claim of Lyme disease is belied by lab testing and is, in any event, not established as a cause of any specific symptoms. (Doc. 5-8, at 10).
A closer call is whether the ALJ's implicit determination that Clay's medication-induced side effects do not warrant a more limited RFC. While the ALJ mentions Clay's self-reports of lethargy, among other symptoms, caused by her ongoing prescriptions, he does not explicitly address those reports in his RFC analysis. "The effect of medication on a claimant's ability to work will be considered if it 'can reasonably be accepted as consistent with the objective medical evidence.'" Schmidt v. Comm'r Soc. Sec., 465 F. App'x 193, 198 (3d Cir. 2012) (quoting 20 C.F.R. § 404.1529(c)(3)). In the instant case, although Dr. Faralli noted Clay's medications included Oxycontin, Zanaflex, and Clonazepam, there is no mention of lethargy or other difficulties managing the medication. (Doc. 5-8, at 28). Indeed, the notes during the critical insured period do not reflect Clay's assertion that she suffered from debilitating lethargy or other medication-relation side effects during that time. (See, e.g., Doc. 5-8, at 31 [Nov. 17, 2015 notes], 32 [April 3, 2006 notes]). Significantly, Dr. Faralli's notes indicating Clay could work, albeit with physical limitations, make no mention of work-related impairment due to medication side effects. Because a "failure to consider side effects is not error where the only probative evidence is the claimant's own conclusory statements," any error on this issue was harmless. See Schmidt, 465 F. App'x at 199.
Therefore, given the Court's limited role at this stage of review, there is sufficient (more than a "scintilla") evidence to substantiate the ALJ's RFC determination.
C. T HE ALJ P ROPERLY A PPLIED THE M EDICAL -V OCATIONAL G RID R ULES
Clay's final contention is that the ALJ erred in his application of the medical-vocational grid rules. "In 1978, to improve both the uniformity and efficiency of this determination, the Secretary promulgated, through an administrative rulemaking, medical-vocational guidelines, or 'grids,' that establish the types and number of jobs that exist in the national economy for claimants with exertional impairments." Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). "The grids consist of a matrix of four factors—physical ability, age, education, and work experience—and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy." Sykes, 228 F.3d at 263. "Where a claimant's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion that work exists that the claimant can perform." Sykes, 228 F.3d at 263.
In her brief, Clay argues that the ALJ should have found her disabled under the grids. She writes:
Claimant was born on October 17, 1956, and turned 50 years of age on October 17, 2006 (which was prior to her date last insured). Claimant, per treating sources, is limited to sedentary work, or significantly less than the full range of light work. Pursuant to 20 C.F.R. § 404.1567, sedentary work is defined as "work [that] involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."
During Vocational Expert testimony, the ALJ confirmed that if Claimant were limited to sedentary work as of her 50th birthday, she would be considered disabled. As noted previously, the Vocational Expert opined there would be no work available at the light exertional level if Claimant was unable to use her right upper dominant extremity for overhead reaching, handling, fingering or reaching in all directions. The Vocational Expert also opined that if Claimant could only work four hours per day at light, and four hours per day at sedentary, there would be no work available at the light exertional level.
As a result of the above, Claimant should have been disabled under Grid Rule 201.12 or 201.14, as of her 50th birthday.
(Doc. 8, at 24-25 (internal citations to the record omitted)).
Clay's argument on this score boils down to the contention that the ALJ erred in crafting Clay's RFC assessment. The ALJ did not find that Clay was completely limited in use of her right extremity but rather that Clay was limited in overhead reaching. Nor did the ALJ find that Clay could only work four light-work hours and four sedentary-work hours per day. Given the ALJ's findings and RFC assessment, it appears that Clay's attorney was merely "overly inclusive of [Clay's demonstrated] conditions when questioning the vocational expert." See Wood v. Colvin, No. 3:12-CV-2506, 2014 WL 1276562, at *5 (M.D. Pa. Mar. 27, 2014). In short, because the ALJ's RFC determination is supported by substantial evidence, there is no merit to Clay's contention that the ALJ misapplied the grid rules. V. RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision be AFFIRMED and that final judgment shall be entered in favor of the Commissioner and against Clay. It is further recommended that the Clerk of Court be directed to CLOSE this case.
Dated: January 10, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 10, 2020.
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: January 10, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge