Opinion
Civil Action 4:21-CV-1110
02-22-2023
RODGER GANTZ, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant
BRANN, C.J.
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
Plaintiff Rodger Gantz, an adult who lives in the Middle District of Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. It will be RECOMMENDED that:
(1) Commissioner's final decision be AFFIRMED.
(2) Final Judgment be issued in the Commissioner's favor by separate order.
(3) The Clerk of Court be DIRECTED to CLOSE this case.
II. BACKGROUND & PROCEDURAL HISTORY
On May 22, 2019, Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 16; Doc. 11-2, p. 17). In this application, Plaintiff alleged he became disabled on May 1, 2019, when he was fifty-two years old, due to the following conditions: chemical exposure with bronchitis, carpal tunnel in both hands, depression, high blood pressure, high cholesterol, headaches, fatigue, shortness of breath, muscle spasms, and ADHD. (Admin. Tr. 201; Doc. 11-6, p. 3). Plaintiff alleges that the combination of these conditions affects his ability to lift, squat, walk, climb stairs, complete tasks, concentrate, and use his hands. (Admin. Tr. 249; Doc. 11-6, p. 51). Plaintiff has a high school education. (Admin. Tr. 27; Doc. 11-2, p. 28). Before the onset of his impairments, Plaintiff worked as an electronic motor control technician, shipping stock clerk, and shooter/tester. Id.
On August 9, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 16; Doc. 11-2, p. 17). On January 16, 2020, Plaintiff's application was denied on reconsideration. Id. On February 18, 2020, Plaintiff requested an administrative hearing. Id.
On August 4, 2020, Plaintiff appeared with counsel and testified by telephone during a hearing before Administrative Law Judge Richard E. Guida (the “ALJ”). Id. On September 29, 2020, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 28; Doc. 11-2, p. 29). On December 3, 2020, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) review the ALJ's decision. (Admin. Tr. 165; Doc. 114, p. 63).
On April 23, 2021, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 11-2, p. 2).
On June 23, 2021, Plaintiff filed a complaint in the district court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the law. (Doc. 1, ¶ 13). As relief, Plaintiff requests that the court reverse the ALJ's decision and award benefits, or in the alternative, remand this case for a new administrative hearing. (Doc. 1, ¶ 14).
On October 8, 2021, the Commissioner filed an answer. (Doc. 10). In the answer, the Commissioner maintains that the decision denying Plaintiff's application was made in accordance with the law and is supported by substantial evidence. (Doc. 10, ¶ 17). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 11).
Plaintiff's Brief (Doc. 12), the Commissioner's Brief (Doc. 17), and Plaintiff's Reply (Doc. 18) have been filed. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals in general, and the legal standards guiding an ALJ's consideration of obesity and symptom evaluation in particular.
A. Substantial Evidence Review - the Role of This Court
A district court's review of ALJ decisions in social security cases is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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.” Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. But 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.” “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.”
See 42 U.S.C. § 405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has underscored the limited scope of district court review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. [293, 301], 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
In practice, this is a twofold task. First, the court determines whether the final decision is supported by substantial evidence. To accomplish this task, the court must decide not only whether “more than a scintilla” of evidence supports the ALJ's findings, but also whether those findings were made based on a correct application of the law. In doing so, however, the court is enjoined to refrain from trying to reweigh evidence and “must not substitute [its] own judgment for that of the fact finder.”
See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
Second, the court must ascertain whether the ALJ's decision meets the burden of articulation the courts demand to enable judicial review. As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, 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.” 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 the national economy. To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured.
42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis.
Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her from engaging in any of his or her past relevant work. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC.
C. Guidelines for the ALJ's Evaluation of the Impact of Obesity on RFC
In 2019, the Social Security Administration issued a new administrative ruling to address how obesity is evaluated. This ruling addresses how obesity is diagnosed, and explains how to evaluate this condition at each step of the sequential evaluation process. The ruling explains that:
We must consider the limiting effects of obesity when assessing a person's RFC. RFC is the most an adult can do despite his or her limitation(s). As with any other impairment, we will explain how we reached our conclusion on whether obesity causes any limitations.
A person may have limitations in any of the exertional functions, which are sitting, standing, walking, lifting, carrying, pushing, and pulling. A person may have limitations in the nonexertional functions of climbing, balancing, stooping, kneeling, crouching, and crawling. Obesity increases stress on weight-bearing joints and may contribute to limitation of the range of motion of the skeletal spine and extremities. Obesity may also affect a person's ability to manipulate objects, if there is adipose (fatty) tissue in the hands and fingers, or the ability to tolerate extreme heat, humidity, or hazards.
We assess the RFC to show the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment. People with an MDI . . . of obesity may have limitations in the ability to sustain a function over time. In cases involving obesity, fatigue may affect the person's physical and mental ability to sustain work activity. This may be particularly true in cases involving obesity and sleep apnea.
The combined effects of obesity with another impairment(s) may be greater than the effects of each of the impairments considered separately. For example, someone who has obesity and arthritis affecting a weight-bearing joint may have more pain and functional limitations than the person would have due to the arthritis alone. We consider all work-related physical and mental limitations, whether due to a person's obesity, other impairment(s), or combination of impairments.
SSR 19-2p, 2019 WL 2374244 at *4.
D. Guidelines for the ALJ's Evaluation of Symptoms
In this context, “symptoms” are defined as the claimant's “own description of [his or her] physical or mental impairment.” The Social Security Regulations and Rulings set out a two-step process to evaluate a claimant's symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. If there is no medically determinable impairment, or if there is a medically determinable impairment but that impairment could not reasonably be expected to produce the claimant's symptoms, an ALJ will not find that those symptoms affect the claimant's ability to perform work-related activities. An ALJ does not consider whether the severity of an individual's symptoms is supported by the objective medical evidence at the first step of this analysis.
SSR 16-3p, 2017 WL 5180304 at *4.
SSR 16-3p, 2017 WL 5180304 at *3.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms caused by the claimant's medically determinable impairments.SSR 16-3p explains:
If an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and the other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities for an adult. . . . In contrast, if an individual's statements about the intensity, persistence, and limiting effects of symptoms are inconsistent with the objective medical evidence and the other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities or abilities to function independently, appropriately, and effectively in an age-appropriate manner.
We may or may not find an individual's symptoms and related limitations consistent with the evidence in his or her record. We will explain which of an individual's symptoms we found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions. We will evaluate an individual's symptoms considering all the evidence in his or her record.
2017 WL 5180304 at *8.
When evaluating a claimant's symptoms, an ALJ considers objective evidence, a claimant's statements about the intensity, persistence and limiting effects of his or her symptoms, statements made by medical sources in opinions and treatment records, and statements about a claimant's symptoms made by nonmedical sources. This evidence is evaluated based on the following factors:
(1) the claimant's daily activities;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any factor that precipitates or aggravates the claimant's pain or other symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms;
(5) any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms;
(6) any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) any other factors concerning functional limitations and restrictions due to pain or other symptoms.
The ALJ is required to discuss the factors pertinent to the evidence of record, but will not discuss a factor where it is not relevant.
SSR 16-3p, 2017 WL 5180304 at *8.
Although the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” The ALJ is, however, required to explain which of an individual's symptoms he or she finds consistent or inconsistent with the evidence in the record.
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).
SSR 16-3p, 2017 WL 5180304 at *8.
This evaluation is subjective. Some claimants may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other claimants with the same medical impairments, objective evidence, and non-medical evidence. For this reason, district courts generally afford great deference to an ALJ's findings.
SSR 16-3, 2017 WL 5180304 at *4.
IV. DISCUSSION
Plaintiff raises the following issues in his statement of errors:
(1) “The ALJ failed to properly evaluate Mr. Gantz's obesity.” (Doc. 12, p. 1).
(2) “The ALJ failed to properly evaluate Mr. Gantz's subjective allegations.” Id.
(3) “The appointment of Andrew Saul as a single Commissioner of SSA who is removable only for cause and serves a longer term than that of the President violates separation of powers. Accordingly, the decision in this case, by the ALJ and Appeals Council Judges who derived their authority from Mr. Saul, is constitutionally defective.” Id.
A. The ALJ's Decision Denying Plaintiff's Application
In his September 2020 decision, the ALJ found that Plaintiff meets the insured status requirement of Title II of the Social Security Act through December 31, 2024. (Admin. Tr. 18; Doc. 11-2, p. 19). Then, Plaintiff's application was evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between May 1, 2019, (Plaintiff's alleged onset date) and September 29, 2020, (the date the ALJ decision was issued) (“the relevant period”). Id.
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: bronchitis, carpal tunnel syndrome, degenerative disc disease, degenerative joint disease, neuropathy, obesity, major depressive disorder, attention-deficit hyperactivity disorder, adjustment disorder, and generalized anxiety disorder. Id. The ALJ also recognized that Plaintiff had two ten-minute “nonverbal episodes” of unknown etiology in May 2019, and that these episodes were medically determinable but non-severe. (Admin. Tr. 18-19; Doc. 11-2, pp. 19-20).
At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 19; Doc. 11-2, p. 20).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in light work as defined in 20 C.F.R. § 404.1567(b) except:
the claimant can only perform occasional postural activities with the further exception that the claimant can never climb ladders, ropes, or scaffolds. Additionally, the claimant can only frequently use his bilateral upper extremities; must avoid concentrated exposure to temperature extremes, humidity, vibration, fumes, odors, dust, gasses, poor ventilation, dangerous machinery, and unprotected heights; is limited to the performance of simple, routine tasks involving only simple work-related decisions and with few, if any, workplace changes; is unable to perform production pace work; and can have no more than occasional contact with supervisors, coworkers, or the public.(Admin. Tr. 21; Doc. 11-2, p. 22).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in his past relevant work. (Admin. Tr. 27; Doc. 11-2, p. 28). At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 27-28; Doc. 11-2, pp. 28-29). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: conveyor line bakery worker, DOT #524.687-022; housekeeping cleaner, DOT #323.687-014; and laminating machine tender, DOT #569.686-046. (Admin. Tr. 28; Doc. 11-2, p. 29).
B. The ALJ Properly Evaluated Plaintiff's Obesity
In his decision, the ALJ notes that “[t]he claimant's primary care records also noted the claimant as obese, with a BMI of 40.1 at the alleged onset date.” (Admin. Tr. 24; Doc. 11-2, p. 25) (citing Exhibit 14F, page 28). Plaintiff argues that this evaluation is “perfunctory and deficient.” (Doc. 12, p. 6). He is correct that the ALJ's articulation of how or whether Plaintiff's obesity resulted in any additional limitations is defective. Nonetheless, when a plaintiff argues remand is required because an ALJ's analysis regarding obesity is inadequate, that plaintiff must specifically show how his obesity, in combination with his other impairments, limited his ability to a degree that is inconsistent with the RFC assessment.Although Plaintiff suggests that if he was limited to sedentary work he would be found disabled, he does not point to any evidence in the record to support his position that obesity could plausibly limit him to the performance of sedentary work. Thus, despite the ALJ's defective explanation, I am not persuaded that remand is required for further consideration of the impact of Plaintiff's obesity.
See e.g., Barnes v. Kijakazi, Civ. No. 5:22-167-DCR, 2022 WL 17406379 at *5 (E.D. Ky. Dec. 2, 2022) (quoting Montagna v. Kijakazi, No. 20-1227-TMP, 2022 WL 565601, at *3 (W.D. Tenn. Feb. 24, 2022) and Lumpkin v. Comm'r of Soc. Sec., No. 1:20-CV-1849-DAP, 2021 WL 5828692, at *7 (N.D. Ohio Oct. 6, 2021)).
Plaintiff did testify that he is unable to stand for more than fifteen minutes at a time or walk for more than thirty minutes at a time due to pain in his feet. (Admin. Tr. 53; Doc. 11-2, p. 54).
Coy v. Astrue, No. 8-1372, 2009 WL 2043491 at *14 (W.D. Pa. Jul. 8, 2009) (“No principle of administrative law “require[s] that we convert judicial review of agency action into a ping-pong game” in search of the perfect decision.”).
C. Substantial Evidence Supports The ALJ's Symptom Evaluation
The ALJ summarized Plaintiff's symptoms as follows:
the claimant reported he has difficulty lifting more than 10 pounds, squatting, walking, climbing stairs, completing tasks, concentrating, and using his hands. He stated he has difficulty maintaining balance. The claimant noted he is unable to work because his ADHD causes him to suffer poor concentration and an inability to multitask; his anxiety and asthma cause him to have difficulty breathing; his asthma also limits his capacity for exertional activities such as walking; his arthritis causes him to have limited range of motion in his left hip and leg; and his carpal tunnel syndrome prevents him from lifting more than 10 pounds or performing repetitive motions with his upper extremities (Exhibit 5E). The claimant later reported his impairments were progressive with increased symptoms of anxiety, depression, anhedonia, fatigue, difficulty swallowing, pain in his joints, and ulcers on his feet (Exhibit 10E).
At the hearing, the claimant testified that he is unable to work because a prior chemical exposure causes him to suffer pain in his hands and feet. Due to his impairments, he is prescribed medication that causes him to suffer side-effects including dizziness. The claimant also testified suffering from poor attention and concentration, impaired memory, an inability to stand for longer than 15 minutes, an inability to walk for more than 30 minutes, and the need to sit with his feet elevated.(Admin. Tr. 22; Doc. 11-2, p. 23).
At step one of his symptom analysis, the ALJ found that these symptoms could reasonably be expected to result from Plaintiff's medically determinable impairments. Id. No party disputes this finding.
At step two of his symptom analysis, the ALJ found that the statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely consistent with the medical and other evidence in the record. Id. In doing so the ALJ explained:
The medical evidence does not support the allegations regarding the intensity, persistence, and limiting effects of the claimant's impairments. While the record shows the claimant suffers from persistent shortness of breath, fatigue, and neuropathy as a result of his chemical inhalation injury, the claimant continues to perform sustained daily activities consistent with a degree of light exertional work activity. Additionally, the claimant's physical examinations demonstrated he has well recovered from his total hip replacement and carpal tunnel syndrome release surgeries. The claimant has required only minimal treatment and interventions for his mental health complaints and his medications are noted to be effective. Overall, the claimant's medical records do not demonstrate the degree of functional loss alleged by the claimant.
The record supports the above assessment of the claimant's residual functional capacity. The record demonstrates the claimant suffers from impairments resulting in shortness of breath with exertion, fatigue, upper and lower extremity neuropathy, hoarseness, and brief attentional lapses. To accommodate these symptoms, the undersigned limited the claimant as noted above. The objective signs, the clinical findings and observations, the claimant's routine and conservative treatment history, the opinions of the State agency medical and psychological consultants, and the claimant's admissions in the record regarding the efficacy of
his treatments and his continued capacity for daily activities support this assessment.(Admin. Tr. 26, Doc. 11-2, p. 27).
Plaintiff argues that substantial evidence does not support this portion of the ALJ's decision for three reasons:
(1) the ALJ improperly observed that Plaintiff's mental health-related symptoms improved with treatment;
(2) the record does not support the ALJ's conclusion that Plaintiff's daily activities are “inconsistent” with Plaintiff's symptoms; and
(3) the ALJ improperly characterized Plaintiff's treatment of his hip pain and carpal tunnel syndrome as “conservative.”
1. The ALJ's Evaluation Of Plaintiff's Mental Health-Related Limitations Is Not Defective Because the ALJ Observed That Plaintiff's Symptoms Improved With Treatment
Regarding his mental impairments, the ALJ observed that Plaintiff has a history of attention-deficit hyperactivity disorder and depression dating long before his alleged onset date. He was voluntarily hospitalized for one week in October 2013 for psychiatric treatment. He received medications for these conditions. He has not participated in counseling since August 2018. During a consultative examination in 2019, Plaintiff was observed to have intact attention and concentration, unimpaired memory, adequate social skills, and good insight and judgment. The psychologist assessed no limitation in his ability to understand, remember or carry out instructions.
After considering this evidence, the ALJ concluded that “[t]he claimant required only minimal treatment and interventions for his mental health complaints and his medications are noted to be effective.” (Admin. Tr. 26; Doc. 11-2, p. 27). The RFC assessment restricts Plaintiff to the performance of “simple, routine tasks involving only simple work-related decisions and with few, if any, workplace changes,” no production pace work, and no more than occasional (two hours or less per day) contact with supervisors, coworkers or the public. (Admin. Tr. 21, Doc. 112, p. 22).
Plaintiff argues that substantial evidence does not support this characterization of his mental health treatment because “having an improved condition does not mean that the claimant is not disabled.” (Doc. 12, p. 8) (citing Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000)). Plaintiff is correct that in Morales the Third Circuit concluded it was improper for an ALJ to reject a treating source opinion as unsupported by treatment records based on a notation that one of the claimant's symptoms (anxiety) was stable and well controlled with medication because that notation did not support the conclusion that the claimant could return to work. Morales, 225 F.3d at 315, 319. Unlike in Morales, where the Court was evaluating the rejection of a treating medical source opinion, in this case the ALJ considered Plaintiff's objective records in the context of symptom evaluation, as is authorized under the regulations. 20 C.F.R. § 404.1529(c). Furthermore, the ALJ has cited to enough evidence that a reasonable mind could conclude that Plaintiff's concentration deficits as they existed during the relevant period would not prevent him from performing simple, routine tasks. The ALJ's analysis on this score is consistent with the regulations and substantial evidence supports it.
2. The ALJ's Failure To Discuss Plaintiff's Activities Of Daily Living Does Not Require Remand
Plaintiff argues that the ALJ did not give adequate consideration to Plaintiff's activities of daily living. In fact, the ALJ offered no discussion, and did not identify, Plaintiff's activities of daily living before generally concluding that these “activities” were “consistent” with the RFC assessment.
In response, the Commissioner argues that Plaintiff described “a wide range of daily activities, weekly socializations, and hobbies including upcycling” to the consultative examiner, and contends these activities are inconsistent with the intensity of Plaintiff's symptoms. In the alternative, the Commissioner argues that even if the ALJ's evaluation of Plaintiff's activities of daily living is defective the ALJ “specifically listed out the numerous factors he considered in determining Plaintiff's RFC, including “[t]he objective signs, the clinical findings and observations, the claimant's routine and conservative treatment history, the opinions of the State agency medical and psychological consultants, and [Plaintiff's] admissions in the record regarding the efficacy of his treatments ....” (Doc. 17, p. 21).
In his examination report, the consultative examiner noted:
MODE OF LIVING: The claimant is able to dress, bathe, and groom himself, cook, and prepare food, do general cleaning, shop, and manage money. He stated that he needs assistance with doing laundry. He is on restriction with lifting things with his hands, and he also noted problems with walking. He is also not able to drive due to drops in his blood pressure. His wife helps him if he requires assistance. He socializes weekly and has good family relationships. He enjoys socializing with friends, doing online social media, watching tv, and going out to dimmer. He is able to use a computer. He has a hobby that is upcycling. He has a cell phone which he can text and call on.(Admin. Tr. 786; Doc. 11-7, p. 435).
The Commissioner's argument that the ALJ adequately discussed Plaintiff's activities of daily living before relying on them is not persuasive. The ALJ did not identify or otherwise discuss what activities of daily living he relied on. However, their position that, considering the records in this case as a whole, substantial evidence supports the ALJ's symptom evaluation, is very persuasive. These records include prior administrative medical findings by two state agency medical consultants and two state agency psychological consultants that are largely consistent with the ALJ's RFC assessment. The ALJ did not heavily rely on Plaintiff's activities of daily living when he concluded that Plaintiff could engage in light work. Instead, his conclusions were based primarily on the medical opinions- all of which are consistent with the RFC assessment-and treatment records. In light of the ALJ's analysis, the Court finds no issue with the ALJ's passing reference to Plaintiff's daily activities.
Furthermore, Plaintiff has not directed the Court to any evidence that contradicts the ALJ's symptom evaluation or RFC assessment. Unlike the cases Plaintiff cites, the ALJ in this case did not rely on Plaintiff's daily activities to disprove disability and does not appear to rely on sporadic or transitory activities to show an ability to engage in substantial gainful activity.
In his brief, Plaintiff cites to the following cases: Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (concluding that substantial evidence did not support ALJ's reasoning that a claimant's ability to read, watch television, and color undermined the credibility of statements by a claimant with asthma and severe COPD about his fatigue, shortness of breath and dysfunction); Smith v. Califano, 637 F.2d 968, 971972 (3d Cir. 2981) (finding that substantial evidence did not support ALJ's conclusion that a claimant was not disabled simply because the claimant went hunting twice during the previous fall. Evidence of partial functionality on two days does not, by itself, disprove disability.); Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987) (remanding where an ALJ failed to evaluate the impact of a claimant's frequent hospitalizations on his ability to engage in and sustain employment); Fargnoli v. Massanari, 247 F.3d 34, 44 (3d Cir. 2001) (finding that substantial evidence did not support an ALJ's decision where the ALJ did not mention clinical evidence that supported a claimant's statements that his back impairment and symptoms changed significantly based on the weather and his activity level); and Gonzales v. Colvin, 191 F.Supp.3d 401, 423 (M.D. Pa. 2015) (finding that substantial evidence did not support an ALJ's analysis of a claimant's testimony that she required breaks throughout the day where the ALJ did not cite to evidence that contradicted the daily activities).
Because the ALJ cites to ample evidence to support his symptom evaluation and RFC, and because Plaintiff has not directed the Court to any evidence in the record that contradicts the ALJ's RFC assessment, substantial evidence supports the ALJ's decision.
3. The ALJ Gave Adequate Consideration to Plaintiff's Hip and Carpal Tunnel Release Surgeries
With respect to the objective evidence related to Plaintiff's bilateral carpal tunnel syndrome, the ALJ noted:
The claimant underwent right carpal tunnel decompression in July 2019 (Exhibit 18F, page 6), following which the claimant reported complete resolution of the severe compressive paresthesia and dysesthesia that were so painful to him preoperatively. The claimant also demonstrated improved power (Exhibit 15F, page 23). The claimant then underwent left carpal tunnel decompression in August 2019 (Exhibit 18F, page 13), following which the claimant reported improved mobility and resolution of his preoperative paresthesia and dysesthesia (Exhibit 15F, page 29).(Admin. Tr. 23; Doc. 11-2, p. 24). In his RFC, the ALJ limited Plaintiff to the performance of jobs that require no more than frequent use of his upper extremities. This is understood to mean that Plaintiff would be required to use his upper extremity for up to two thirds of the time, or six hours of an eight hour workday. Two out of the three jobs the vocational expert identified require no more than occasional (two hours or less per day) handling and fingering.
DOT #569.686-046, 1991 WL 683893 (defining laminating machine offbearer as requiring only occasional handling and fingering); DOT #524.687-022, 1991 WL 674401, 1991 WL 674401 (defining bakery worker as requiring only occasional handling and fingering); see also Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, Appendix C (defining “occasionally,” “handling,” and “fingering.”).
With respect to the objective records related to Plaintiff's left hip impairment, the ALJ noted:
In addition to his obesity, his primary care records further acknowledge the claimant suffers from left hip degenerative joint disease with osteoarthritis (Exhibit 14F, page 13) for which the claimant had undergone a left hip replacement in the year prior to his alleged onset date (Exhibit 14F, page 72). In September 2019, a year after his hip replacement surgery, the claimant returned for a follow-up examination at which time the claimant noted having returned to essentially normal activities with no more than minimal discomfort in his thigh and groin (Exhibit 19F, page 6). X-rays showed his total hip prosthesis as remaining in good position with no evidence of subsidence, loosening, or wear and no evidence of any other acute osseous abnormality (Exhibit 19F, page 6).(Admin. Tr. 24; Doc. 11-2, p. 25). In his RFC assessment, the ALJ limited Plaintiff to the performance of “light” work, which would require Plaintiff to stand or walk for up to six hours per eight-hour day.
In his symptom evaluation, the ALJ noted that “the claimant's physical examinations demonstrated he has well recovered from his total hip replacement and carpal tunnel syndrome release surgeries.” (Admin. Tr. 26; Doc. 11-2, p. 27). In the next paragraph, addressing Plaintiff's symptoms of “shortness of breath with exertion, fatigue, upper and lower extremity neuropathy, hoarseness, and brief attentional lapses,” the ALJ noted that “[t]he objective signs, the clinical findings and observations, the claimant's routine and conservative treatment history, the opinions of the State agency medical and psychological consultants, and the claimant's admissions in the record regarding the efficacy of his treatments and his continued capacity for daily activities support this assessment.” Id. (emphasis added).
Plaintiff argues that surgical treatment for carpal tunnel syndrome, and a hip replacement surgery are neither “routine” nor “conservative,” and that the ALJ is prohibited from drawing a negative inference about a claimant's allegations based on the failure to pursue more aggressive treatment without adequately developing the record. (Doc. 12, p. 11). In response, the Commissioner argues that the ALJ's reference to routine and conservative treatment likely referred to Plaintiff's mental health treatment, not his surgeries. (Doc. 17, p. 22). Reading the ALJ's decision as a whole, the ALJ's reference to “routine and conservative” treatment appears as part of a general list that followed specific discussion of the treatment Plaintiff received for all of his impairments and symptoms. The Commissioner is correct that the most reasonable reading of the decision is that the characterization refers to Plaintiff's mental health treatment, not his hip pain and carpal tunnel surgery. Furthermore, the objective evidence cited in this decision clearly supports the ALJ's RFC assessment. Plaintiff, on the other hand, has not referenced any evidence that Plaintiff's hip impairment and carpal tunnel syndrome result in more significant limitations.
Although the ALJ's explanation could have been more clear, there is no evidence that remand for further evaluation of Plaintiff's hip impairment or carpal tunnel syndrome might lead to a different result in this case.
D. The Existence of Statutory Removal Protections Restricting the Removal of Commissioner Saul Does Not Warrant Remand In This Case
Relying on Seila Law LLC v. Consumer Fin. Prot. Bd., 140 S.Ct. 2183 (2020), Plaintiff argues that he was deprived of a constitutionally valid administrative adjudicatory process because the statutory removal protections afforded to Commissioner Saul under 42 U.S.C. § 902(a)(3) violated the constitutional separation of powers. (Doc. 12, p. 12)
In Seila Law, the Supreme Court of the United States held that statutory removal protections afforded to the director of the Consumer Financial Protection Board (“CFPB”) violated the constitutional separation of powers by insulating its director from removal by the President. One year later, the Supreme Court applied Seila Law to a similar challenge concerning the statutory removal protections afforded to the director of the Federal Housing Finance Agency (“FHFA”) in Collins v. Yellen.
140 S.Ct. at 2192. Pursuant to 12 U.S.C. § 5491(c)(1), the CFBP Director was appointed to a term of five years and could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
141 S.Ct. 1761, 1783-84 (2021). Like the director in Seila Law, by statute the director of the FHFA was appointed to a term of five years and could only be removed for cause. 12 U.S.C. § 4512(b)(2).
Like the CFPB and the FHFA, the Social Security Administration also affords its Commissioner statutory removal protections. Applying the holdings of Seila Law and Collins, other courts have concluded that this statutory removal protection violates the constitutional separation of powers.
Stamm v. Kijakazi, 577 F.Supp.3d 358, 366 (M.D. Pa. Dec. 31, 2021).
Plaintiff argues that he was deprived a valid administrative adjudicatory process in this case because, under 42 U.S.C. § 405(b)(1), only the Commissioner can make findings of fact and issue final decisions as to benefits eligibility. The Commissioner's authority is delegated to the ALJs and Administrative Appeals Judges. Plaintiff suggests that the Commissioner's authority, and by extension the authority delegated to the ALJ and AAJs, is voided due to the unconstitutional restrictions on removal. Plaintiff also argues that the ALJ decided his case under regulations promulgated by a Commissioner without constitutional authority to issue those rules. This argument is not persuasive.
In Collins, the Supreme Court held that a constitutionally defective removal provision does not invalidate an agency head's appointment, and by extension does not void a properly appointed agency head's actions. Instead, the relevant inquiry is whether the unconstitutional removal provision inflicted compensable harm. In the context of Social Security Appeals, this requires a plaintiff to demonstrate a causal nexus between the decision denying his benefits and the unconstitutional removal provision. As Justice Thomas's concurring opinion in Collins clarified, a plaintiff must do more than point to a conflict between the removal statute and the constitution; he must show some action on the part of the Commissioner that was unlawful and harmful to him. In her concurrence, Justice Kagan observed that such a showing would be difficult to make in a social security case. Notably, post- Collins, many other courts that have considered nearly identical separation of powers arguments in social security cases have held that this is not a basis for remand.
Collins, 141 S.Ct. at 1787.
Id.
Andino v. Kijakazi, No. 21-2852, 2022 WL 1135010 at *7 (E.D. Pa. Apr. 18, 2022).
Collins, 141 S.Ct. at 1790-91 (Thomas, J. concurring).
Id. at 1802 (“[G]iven the majority's remedial analysis I doubt the mass of SSA decision-which would not concern the President at all-would need to be undone ....When an agency decision would not capture a President's attention, his removal authority could not make a difference[.]”).
Dengler v. Kijakazi, 2022 WL 17822442 (E.D. Pa. Dec. 20, 2022) (citing Andino v. Kijakazi, No. 21-2852, 2022 WL 1135010, at *5-7 (E.D. Pa. Apr. 18, 2022); Adams v. Kijakazi, No. 20-3591, 2022 WL 767806, at *9-11 (E.D. Pa. Apr. 18, 2022); High v. Kijakazi, No. 20-3528, 2022 WL 394750, at *6 (E.D. Pa. Feb. 9, 2022); Wicker v. Kijakazi, No. 20-4771, 2022 WL 267896, at *8-10 (E.D. Pa. Jan. 28, 2022); Mor v. Kijakazi, No. 21-1730, 2022 WL 73510 (D.N.J. Jan. 7, 2022); Crossley v. Kijakazi, No. 20-2298, 2021 WL 6197783, at *8 (M.D. Pa. Dec. 31, 2021); Shannon R. v. Comm'r of Soc. Sec., 572 F.Supp.3d 1028, 1037-39 (W.D. Wash. 2021); Alice T. v. Kijakazi, No. 8:21CV14, 2021 WL 5302141, at *18 (D. Neb. Nov. 15, 2021); Webb v. Kijakazi, No. 1:20CV714, 2021 WL 5206498, at *15 at n. 12 (M.D. N.C. Nov. 9, 2021) (Report and Recommendation); Lisa Y. v. Comm'r of Soc. Sec., 570 F.Supp.3d 993 (W.D. Wash. 2021); Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397, at *2-3 (W.D. N.C. Oct. 27, 2021); Tracey Ann. P. v. Kijakazi, No. 20CV1163-LAB(RBB), 2021 WL 4993021, at *18 (S.D. Cal. Oct. 27, 2021) (Report and Recommendation); Robles v. Comm'r of Soc. Sec., No. 220CV01069JDPSS, 2021 WL 4285170, at *4 n. 6 (E.D. Cal. Sept. 21, 2021); and Angelita O. v. Kijakazi, No. 1:20-CV-00034-AJB, 2021 WL 4146085, at *18 at n. 13 (N.D.Ga. Sept. 13, 2021)).
Here, Plaintiff challenges the Commissioner's final decision denying his application for benefits. That decision was issued in September 2020. Plaintiff has alleged no direct action by the Commissioner at the time, Andrew Saul, and no involvement in the ALJ's decision by the President at the time, Donald Trump. In short, Plaintiff has not shown how the President's supposed inability to remove the Commissioner without cause might have affected the ALJ's decision in his case.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that Plaintiff's request for relief be DENIED as follows:
(1) The final decision of the Commissioner should be AFFIRMED.
(2) Final judgment should be issued in the Commissioner's favor by separate order.
(3) The Clerk of Court should be DIRECTED to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local 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.