Opinion
Civil 1:21-CV-1493
12-16-2022
HEATHER GILBERT, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
Heather Gilbert's personal circumstances certainly evoke sympathy. Ms. Gilbert is the primary care-giver for two disabled children, a daughter with muscular dystrophy and a son with autism. Following an April 2018 head injury and concussion Ms. Gilbert filed a claim with Social Security alleging that she, too, was now disabled largely due to migraine headaches and other emotional impairments. Following a thorough review of the pertinent information-which included fairly benign treatment records, multiple medical opinions that concluded she was not disabled, a treating source opinion which stated that there was “no evidence of significant] neurocognitive dysfunction”, and records indicating that Gilbert was working part-time following the alleged onset of her disability-an Administrative Law Judge (ALJ) concluded that she had not met the rigorous standard for establishing disability and denied her claim.
Gilbert now appeals this decision, arguing that the ALJ erred in evaluating her migraine headaches and the overall severity of her symptoms. Aside from these merits-based contentions, Gilbert also asserts that there is a structural legal flaw in the appointment process for the Commissioner of Social Security which also entitles her to a remand of her case. However, when considering this Social Security appeal, we are enjoined to apply a deferential standard of review, one which simply calls for a determination of whether substantial evidence supported the ALJ's decision. Mindful of the fact that, in this context, substantial evidence is a term of art which “means only- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' ” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019), we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner denying this claim.
II. Statement of Facts and of the Case
On December 7, 2018, Heather Gilbert applied for disability insurance benefits under Title II of the Social Security Act alleging an onset of disability on April 24, 2018. (Tr. 16). Snyder was born in 1971 and was 46 years old at the time of the alleged onset of her disability. (Tr. 24). She had prior employment in the health care field as a supervisor, admitting officer. (Id.) Ms. Gilbert was also the primary care-giver for two disabled children, a daughter with muscular dystrophy and a son with autism. (Tr. 568).
Gilbert alleged that she was totally disabled due to the combined effects of the following severe impairments: migraine, post-concussion syndrome, degenerative joint disease, obesity, major depressive disorder, and generalized anxiety disorder. (Tr. 18). While Gilbert's disability application made mention of her obesity and degenerative joint disease, the principal thrust of this application, and appeal, focused upon her emotional state and the migraines she was experiencing. (Tr. 4251). The precipitating event which seemed to trigger the alleged onset of this disability was a head injury and concussion suffered by Gilbert in April of 2018.
With respect to these neurological and psychological conditions, Gilbert's treatment history prior to April 2018 described her as experiencing a recurrent major depressive disorder which was in full remission. (Tr. 332, 339, 341, 344, 348, 351).
These treatment notes, which spanned from September 2017 through February of 2018, also indicated that she was not experiencing depression or anxiety and displayed a normal mood and affect. (Tr. 356, 366).
On April 24, 2018, Gilbert was seen at the GLH Geisinger Hospital Emergency room complaining of a head injury. (Tr. 501-506). According to Gilbert she was injured while building a fence when a fence post fell and struck the back of her head. (Tr. 501). While Gilbert reported that she experienced dizziness, nausea, some confusion, and a feeling that she was “hungover”, she denied falling or losing consciousness. (Id.) The treating staff observed no neurological deficits on Gilbert's part and she was alert and cooperative throughout this treatment encounter. (Tr. 504). Gilbert underwent a CT scan on April 24, 2018. (Tr. 400). The results of that CT scan revealed “no change [from prior scans] and no CT findings suggestive of acute intracranial abnormality.” (Tr. 400).
Gilbert also followed up with her primary care physicians seeing them on six occasions between April 27, 2018 and June 26, 2018. (Tr. 474-496). In these clinical encounters, Gilbert's treating physicians consistently noted normal neurological and psychiatric findings. (Tr. 474, 477-78, 481, 489, 492, 496). These care givers also indicated that they did not regard Gilbert's complaints as completely disabling since they cleared her to work in May and June of 2018, and ultimately stated on June 26, 2018 that she could return to work as per the neurologist's recommendations. (Tr. 478,487, 494). At that time, while Gilbert still complained of some post-concussion symptoms, she stated that “her fatigue is better since she got back into her normal routine.” (Tr. 494). As part of her post-concussion follow up treatment, Gilbert also underwent an MRI examination on May 12, 2018. (Tr.399-400). The results of this MRI were unremarkable. Gilbert had a “[s]table exam... [n]o MRI findings suggestive of an acute intracranial abnormality, masses, or abnormal enhancement.” (Id.)
Following these tests and treatment, Gilbert continued to periodically report concussion related symptoms but also described improvement in her cognitive clarity. For example, on November 7, 2018, Gilbert stated that she still experienced anxiety, but was able to drive and had noted improvement in her headaches. (Tr. 581). A neurological examination conducted at that time resulted in normal findings, (Tr. 583), and Gilbert's judgment, mood, insight, and affect were all described as normal. (Id.) A consultative examination conducted by Dr. Ahmed Kneifati on February 19, 2019 also revealed no neurological abnormalities. (Tr. 518-21). Further treatment notes from August 24, 2020 made the following neurological findings with respect to Gilbert:
Oriented to: Person, Place and Time
Memory: Short Term Intact and Remote Intact
Attention: Span intact and Concentration Intact
Speech Fluency: negative Dysarthria
Speech Aphasia: negative Aphasia
Fund of Knowledge: Current Events, Past History and Vocabulary Cranial Nerves: Normal II, TIT, IV, VI and VII
Motor Strength: Normal Lower Extremities and Normal Upper Extremities
Muscle Bulk/involuntary Movements: No Involuntary Movements, negative Muscle Atrophy
Sensation: Light Touch Intact and Proprioception Intact
Coordination: Normal; negative Limited Balance
Gait: Normal Station and Gait.(Tr. 1048).
Given this clinical history the two state agency experts who examined Gilbert's case in February of 2019, Dr. Arcadio Hernandez and Dr. John Vigna, both concluded that Gilbert's emotional and physical impairments, including her migraines, were not wholly disabling. (Tr. 70-83). These findings were echoed by the consulting and examining medical sources who saw Gilbert in February of 2019. Thus, Dr. Ahmed Kneifati, who examined Gilbert on February 19, 2019, reported no significant neurological abnormalities. (Tr. 518-21). In the same vein, Dr. David Baker, who performed a consultative mental state evaluation of Gilbert on February 19, 2019, found that Gilbert was moderately depressed and anxious but concluded that her speech was fluent, her sensorium was clear, she was fully oriented, and her memory skills were intact. (Tr. 534). Dr. Baker also concluded that Gilbert's judgment and insight were fair, her cognitive functioning was average, and her attention and concentration were only mildly impaired. (Tr. 534-35).
Gilbert's treating neurologist, Dr. Brian Hyman, also submitted a residual functional capacity questionnaire on August 7, 2020, but this treating source opinion provided little support for Gilbert's claims of disability. (Tr. 839-43). Quite the contrary, in his report Dr. Hyman declined to describe Gilbert as suffering from impairments, stating instead that “symptoms have lasted, no impairments though.” (Tr. 839). Dr. Hyman also stated that he was unable to answer whether Gilbert was a malingerer. (Tr. 840). According to Dr. Hyman Ms. Gilbert “has no evidence of significant cog. d/a or brain injury”, and there is “no evidence of sig[nificant] neurocognitive dysfunction”. (Id.)
It was on this medical record that Gilbert's disability application came to be heard by the ALJ.
After continuing her case on one occasion at Gilbert's request, (Tr. 60-69), the ALJ conducted a hearing on this disability application on September 2, 2020. (Tr. 31-59). Gilbert testified at this hearing, acknowledging that she had been working part-time as an employment specialist in 2019. (Tr. 37-8). Gilbert's treatment records from March and May of 2019 also alluded to her part-time employment following the date of the alleged onset of her disability. (Tr. 568, 572). Gilbert's counsel also acknowledged the highly equivocal treating source statement submitted by Dr. Hyman, (Tr. 48-40), nonetheless Gilbert testified that she suffered from mood swings, memory issues, as well as anxiety and depression. (Tr. 51-53). The ALJ also elicited testimony from a vocational expert at this hearing regarding the availability of employment for a person experiencing impairments like those reported by Ms. Gilbert. (Tr. 54-59).
Following this hearing, on November 9, 2020, the ALJ issued a decision denying this application for benefits. (Tr. 13-25). In that decision, the ALJ first concluded that Gilbert met the insured status requirements of the Act through December 31, 2023 and had not engaged in substantial gainful activity since the alleged date of the onset of her disability in April of 2018. (Tr. 18). In reaching this conclusion that ALJ acknowledged that Gilbert “worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity.” (Id.) At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Gilbert's migraine, post-concussion syndrome, degenerative joint disease, obesity, major depressive disorder, and generalized anxiety disorder were all severe impairments (Id.). At Step 3, the ALJ determined that none of these impairments met or medically equaled the severity of one of the listed impairments. (Tr. 19-20).
Between Steps 3 and 4 the ALJ concluded that Gilbert retained the following residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can engage in occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, but never climbing of ladders, ropes, or scaffolds, must avoid concentrated exposure to temperature extremes, and avoid even moderate exposure to unprotected heights and moving mechanical parts, and retains the capacity to perform simple, routine tasks, involving only simple work-related decisions, with few, if any, work place changes, no production pace work, and only occasional interaction with supervisors, coworkers, and the public.(Tr. 20).
In reaching this RFC determination, the ALJ described Gilbert's treatment history, particularly as it related to her migraines and post-concussion impairments, stating that:
The claimant has migraines and post-concussion syndrome. She sustained a head injury when a fence post fell over and hit her on her head. However, records show that the claimant did not lose consciousness, and she had CT scan that showed benign findings (1F, pg. 6-9). A May 2018 MRI scan of the claimant's brain also revealed normal findings, including no masses or abnormal enhancement (2F, pg. 51), and the claimant was cleared to resume working by her neurologist the following month. In addition, although the claimant endorsed poor short-term memory, she also reported better balance and improving confusion. She also indicated that her fatigue is better since getting back into her normal routine (2F, pg. 33). November 2018 treating notes also show that the claimant's headaches are getting better (6F, pg. 32). The claimant had a normal neurological examination in February 2019 (3F). The claimant also had a normal neurological
examination in August 2020, including findings of normal balance and intact strength (21F, pg. 5).
(Tr. 21).
The ALJ also detailed Gilbert's mental health treatment history finding that:
The claimant also has mental impairments of depression and anxiety. Nevertheless, she has consistently normal findings in the record. She had a cooperative demeanor and adequate manner of relating during a February 2019 consultative examination. She also had appropriate grooming and eye contact, along with intact speech and coherent thought processes. Although the claimant appeared as moderately depressed and anxious, she had a clear sensorium and was oriented to the three (3) spheres. Although the claimant's attention and concentration were mildly impaired due to emotional distress, she had intact recent and remote memory, along with an average level of intellectual functioning. She also had fair judgment and insight (4F, pg. 6). The claimant also had a normal neurocognitive assessment in February 2019, including findings of her attention, working memory, visuospatial ability, and reasoning being in the range of expectation (5F, pg. 7). She also had normal memory and concentration during an August 2020 treating visit (21F, pg. 5).
(Tr. 22).
Furthermore, the ALJ documented Gilbert's activities of daily living beyond her part-time work, finding that:
The claimant's activities of daily living similarly do not suggest a disabling level of impairment. The claimant cares for her children by administering their medication and getting them ready for school or doctor's appointments. She also cares for her fourteen (14) year old son who has autism, and fifteen (15) year old daughter who is wheelchair bound and requires 24/7 care. The claimant also cares for animals by bathing them and feeding them, and she handles her own personal care activities independently. The claimant also drives herself to get to and
from places, and she leaves the house several times a week (5E). These activities of daily living are not suggestive of more than minimal functional limitations.(Id.)
Finally, the ALJ determined that the medical consensus of the state agency experts and consulting and examining doctors, all of whom found that Gilbert retained the capacity to perform some work, was persuasive. (Tr. 22-3). The ALJ afforded less persuasive power to the treating source opinion of Dr. Hyman, observing that:
Dr. Hyman's own words do not support his opinion. For example, Dr. Hyman indicated the claimant has reported symptoms, but she has no impairments (15F/2). Dr. Hyman noted that the neuropsychological examination resulted in normal findings (15F/2; 21F/5). Dr. Hyman even indicated that he was unable to answer whether the claimant was a malingerer (15F/3). Furthermore, Dr. Hyman responded “No” to the question of “Are your patient's impairments (physical impairments plus any emotional impairments) reasonably consistent with the symptoms and functional limitations described in this evaluation” (Id.). Dr. Hyman explained by writing “has no evidence of significant [cognitive disorder] or brain injury” (Id.). He also wrote “no evidence of sig neurocognitive dysfunction” (Id.).(Tr. 24).
Having reached these conclusions regarding the medical, clinical, and opinion evidence, the ALJ found that Gilbert could perform jobs that existed in significant numbers in the national economy. (Tr. 24-5). Accordingly, the ALJ determined that Gilbert had not met the demanding showing necessary to sustain this claim for benefits and denied this claim. (Id.)
This appeal followed. (Doc. 1). On appeal, Gilbert challenges the adequacy of the ALJ's decision, arguing that the ALJ erred in evaluating her migraine headaches and the overall severity of her symptoms. Aside from these merits-based contentions, Gilbert also asserts that there is a structural legal flaw in the appointment process for the Commissioner of Social Security which also entitles her to a remand of her case. This appeal is fully briefed by the parties and is, therefore, ripe for resolution. As discussed in greater detail below, having considered the arguments of counsel, carefully reviewed the record, and remaining mindful of the deferential standard of review which applies here, we conclude that the ALJ's decision is supported by substantial evidence. Accordingly, we recommend that the district court affirm the decision of the Commissioner denying this claim.
III. Discussion
A. Substantial Evidence Review - the Role of this Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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). 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). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 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.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has underscored for us the limited scope of our 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.--,----, 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, 139 S.Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The 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 ”).
Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review “we are mindful that we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, “this Court requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). 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 meaningful 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).
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
This principle applies with particular force to legal challenges, like the claim made here, based upon alleged inadequacies in the articulation of a claimant's mental RFC. In Hess v. Comm'r Soc. Sec., 931 F.3d 198, 212 (3d Cir. 2019), the United States Court of Appeals recently addressed the standards of articulation that apply in this setting. In Hess, the court of appeals considered the question of whether an RFC, which limited a claimant to simple tasks, adequately addressed moderate limitations on concentration, persistence, and pace. In addressing the plaintiff's argument that the language used by the ALJ to describe the claimant's mental limitations was legally insufficient, the court of appeals rejected a per se rule which would require the ALJ to adhere to a particular format in conducting this analysis. Instead, framing this issue as a question of adequate articulation of the ALJ's rationale, the court held that, “as long as the ALJ offers a ‘valid explanation,' a ‘simple tasks' limitation is permitted after a finding that a claimant has ‘moderate' difficulties in ‘concentration, persistence, or pace.'” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019). On this score, the appellate court indicated that an ALJ offers a valid explanation of a mental RFC when the ALJ highlights factors such as “mental status examinations and reports that revealed that [the claimant] could function effectively; opinion evidence showing that [the claimant] could do simple work; and [the claimant's activities of daily living, . . . . ” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019).
In our view, the teachings of the Hess decision are straightforward. In formulating a mental RFC, the ALJ does not need to rely upon any particular form of words. Further, the adequacy of the mental RFC is not gauged in the abstract. Instead, the evaluation of a claimant's ability to undertake the mental demands of the workplace will be viewed in the factual context of the case, and a mental RFC is sufficient if it is supported by a valid explanation grounded in the evidence.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
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.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). 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. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). 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(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). 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”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett, 220 F.3d at 121 (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
Once the ALJ has made this determination, our 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. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018); Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 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. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and state that “[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that “[t]here is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting, like that presented here, where well-supported medical sources have opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. Biller, 962 F.Supp.2d at 778-79. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when no medical opinion supports a disability finding or when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living to fashion an RFC, courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington, 174 Fed.Appx. 6; Cummings, 129 F.Supp.3d at 214-15. In either event, once the ALJ has made this determination, our 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. Burns, 312 F.3d 113; see also Rathbun, 2018 WL 1514383, at *6; Metzger, 2017 WL 1483328, at *5.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms
The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:
[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir. 2009) (“In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses....”). However, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir. 1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006) (stating that an ALJ is required to provide “specific reasons for rejecting lay testimony”). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D. Pa. 2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
Yet, it is also clear that:
Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of pain under a standard of review which is deferential with respect to the ALJ's well-articulated findings, but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.
In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled.”). It is well-settled in the Third Circuit that “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. §404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.
First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 163p. This includes, but is not limited to: medical signs and laboratory findings, diagnosis and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.
Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24, 2014); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019);Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015).
It is against these legal guideposts that we assess the ALJ's decision in the instant case.
D. The Decision of the ALJ Should Be Affirmed on Its Merits.
While Ms. Gilbert's personal circumstances and family responsibilities certainly evoke empathy in this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of evidence,” Pierce, 487 U.S. at 565, but rather “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Biestek, 139 S.Ct. at 1154. Judged against these deferential standards of review, we are constrained to find that substantial evidence supported the ALJ's decision that Snyder was not entirely disabled.
At the outset, we cannot conclude under this deferential standard of review that the ALJ erred in assessing Gilbert's migraines or evaluating the severity of her symptoms. Rather, the clinical and opinion evidence, taken as a whole, supports the ALJ's assessment. Objective testing in the form of MRI and CT scans failed to disclose any significant abnormalities. Moreover, Gilbert's longitudinal treatment history was for the most part unremarkable in terms of her psychiatric and neurological symptoms. Indeed, her primary care physicians cleared her to work shortly after her April 2018 head injury. This generally benign medical history led to medical consensus among the state agency experts and consulting and examining doctors who considered Gilbert's case, all of whom found that Gilbert retained the capacity to perform some work.
Moreover, Gilbert's disability claim was undermined by the only treating source who offered an opinion in this case. Gilbert's treating neurologist, Dr. Brian Hyman, submitted a residual functional capacity questionnaire on August 7, 2020, but this treating source opinion provided little support for Gilbert's claims of disability since in his report Dr. Hyman declined to describe Gilbert as suffering from impairments, stating instead that “symptoms have lasted, no impairments though.” (Tr. 839). Dr. Hyman also stated that he was unable to answer whether Gilbert was a malingerer. (Tr. 840). According to Dr. Hyman, Ms. Gilbert “has no evidence of significant cog. d/a or brain injury”, and there was “no evidence of significant] neurocognitive dysfunction”. (Id.)
Nonetheless in fashioning an RFC for Gilbert, the ALJ took these impairments into account finding that Gilbert:
[R]etains the capacity to perform simple, routine tasks, involving only simple work-related decisions, with few, if any, work place changes, no production pace work, and only occasional interaction with supervisors, coworkers, and the public.(Tr. 20).
By following this course the ALJ's decision comported with the dictates of case law. Specifically, in Hess v. Comm'r Soc. Sec., 931 F.3d 198, 212 (3d Cir. 2019), the United States Court of Appeals addressed this precise issue: the question of whether an RFC which limited a claimant to simple tasks adequately addressed moderate limitations on concentration, persistence, and pace. In terms that are equally applicable here the court noted that: “The relationship between ‘simple tasks' limitations and ‘concentration, persistence, or pace' is a close one.” Id. Given how closely related these two concepts are, the appellate court rejected the notion advanced by the plaintiff that an RFC which limited a claimant to simple tasks failed as a matter of law to address moderate limitations on concentration, persistence, and pace. Instead, the court concluded that:
A limitation to “simple tasks” is fundamentally the same as one “to jobs requiring understanding, remembering, and carrying out only simple instructions and making only simple work-related decisions[.]” (App. at 33-34;) see Davis v. Berryhill, 743 Fed.Appx. 846, 850 (9th Cir. 2018) (treating “understanding, remembering, and carrying out only simple instructions” as equivalent to “simple tasks”); Richards v. Colvin, 640 Fed.Appx. 786, 790 (10th Cir. 2016) (referring to a limitation “to understanding, remembering, and carrying out only simple instructions and making only simple work-related decisions” as a “simple-work limitation[ ]”). Indeed, both formulations - the ALJ's and the more concise phrase “simple tasks” - relate to mental abilities necessary to perform “unskilled work.” See 20 C.F.R. §§ 404.1568(a), 416.968(a) (“Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.”); SSR 96-9P, 1996 WL 374185, at *9 (July 2, 1996) (concluding that “unskilled work” requires “[understanding, remembering, and
carrying out simple instructions” and “[m]aking ... simple work-related decisions”); cf. Richards, 640 Fed.Appx. at 790 (treating “simple-work limitations” as similar to “unskilled work” limitations). So the parties' reliance on case law related to “simple tasks” is appropriate and helpful.Hess v. Comm'r Soc. Sec., 931 F.3d 198, 210-11 (3d Cir. 2019).
Having rejected a per se rule finding that simple task RFCs are legally inadequate to address moderate limitations in concentration, persistence, and pace, the court of appeals found that in this setting, the issue was one of adequate articulation of the ALJ's rationale, holding that: “as long as the ALJ offers a ‘valid explanation,' a ‘simple tasks' limitation is permitted after a finding that a claimant has ‘moderate' difficulties in ‘concentration, persistence, or pace.' ” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019). On this score, the appellate court indicated that an ALJ offers a valid explanation for a simple task RFC when the ALJ highlights factors such as “mental status examinations and reports that revealed that [the claimant] could function effectively; opinion evidence showing that [the claimant] could do simple work; and [the claimant's activities of daily living, which demonstrated that [s]he is capable of engaging in a diverse array of ‘simple tasks[.]' ” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 214 (3d Cir. 2019).
Here the ALJ has offered a valid explanation for this mental RFC, an explanation which draws substantial support from the clinical and medical opinion record. Thus, at bottom, Gilbert seems to invite us to re-weigh the evidence and fashion a different RFC in this case. However, we are mindful that our “ ‘review of the ALJ's assessment of the [claimant's RFC is deferential,' and the ‘RFC assessment will not be set aside if it is supported by substantial evidence.' ” Stancavage v. Saul, 469 F.Supp.3d 311, 339 (M.D. Pa. 2020). In the instant case, we find that the ALJ's assessment of the evidence complied with the dictates of the law and was supported by substantial evidence, a term of art which means less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “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, 487 U.S. at 565.
This is all that the law requires, and all that a claimant can demand in a disability proceeding. Thus, notwithstanding the plaintiff's argument that this evidence might have been viewed in a way which would have also supported a different finding, we are obliged to affirm this ruling once we find that it is “supported by substantial evidence, ‘even [where] this court acting de novo might have reached a different conclusion.' ” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we find that substantial evidence supported the ALJ's evaluation of this case. Therefore, when this decision is considered on its merits under the applicable standard of review, it is submitted that the decision should be affirmed.
E. A Remand is Not Necessary Based Upon Separation of Powers Considerations.
Finally, the plaintiff contends that the ALJ's authority was constitutionally defective, in that the ALJ derives his power from the Commissioner of Social Security, and the Commissioner of Social Security was not constitutionally appointed because the removal clause violates the separation of powers. The parties agree that the removal clause violates the separation of powers to the extent it limits the President's authority to remove the Commissioner, but the Commissioner contends that this is not a basis for setting aside an unfavorable decision denying benefits. After consideration, we agree with the rising tide of caselaw suggesting that there is no reversible error where the plaintiff has not shown a traceable injury linked to this alleged removal clause deficiency.
The plaintiff contends that she was not afforded a valid administrative adjudicatory process because her claim was denied by an ALJ who was appointed by a Commissioner whose appointment was constitutionally defective. The plaintiff relies on the Supreme Court's decision in Seila Law LLC v. CFPB, 140 S.Ct. 2183 (2020). In Seila Law, the Supreme Court found that the Consumer Financial Protection Bureau's removal structure violated the separation of powers, as that structure essentially insulated the director of the CFPB from removal by the President. Id. at 2197. Moreover, in Collins v. Yellen, 141 S.Ct. 1761 (2021), the Supreme Court held a removal provision which allowed for the President to remove the director of the Federal Housing Finance Agency only for cause violated the separation of powers. Id. at 1783.
The Third Circuit has not addressed whether these Supreme Court decisions are applicable to the Social Security Administration. However, the SSA limits the removal of the Commissioner only for cause. See 42 U.S.C. § 902(a)(3) (“An individual serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office”). Moreover, at least one court within this circuit has found that the removal provision for the Commissioner of the SSA violates the separation of powers. See Stamm v. Kijakazi, -- F.Supp.3d --, 2021 WL 6197749, at *5 (M.D. Pa. Dec. 31, 2021) (Mehalchick, M.J.) (“Applying the holdings in Seila Law and Collins here makes it clear that the provision for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the separation of powers”).
Yet while the structure of the Social Security Act's retention provisions may foster some separation of powers concerns, what is less apparent is how those concerns provide Gilbert with grounds to set aside this ALJ's decision. In this regard, other courts have taken the Collins approach and held that Social Security plaintiffs typically do not have standing to challenge the separation of powers violation, as these plaintiffs could not show that the removal clause caused them a traceable injury. Indeed, in Collins, the Supreme Court found that “whenever a separation-of-powers violation occurs, any aggrieved party with standing my file a constitutional challenge.” Collins, 141 S.Ct. at 1780 (emphasis added). As applied to Social Security plaintiffs, one court has aptly explained:
In Collins, the Directors of the FHFA adopted an amendment (the “Third Amendment”) to certain financial agreements that “materially changed the nature of the agreements” and resulted in the companies in which plaintiffs were shareholders transferring to the U.S. Treasury “at least $124 billion dollars more than the companies would have had to pay” under the prior form of the agreements. Id. at 1774. The plaintiffs in Collins thus had an identifiable basis to contend that but for the unconstitutional removal provision, the President may have removed and appointed a different Director who would have disapproved of the adoption (or implementation) of the Third Amendment. See id. at 1789.
In contrast, there is nothing showing the Commissioner or the SSA implemented new and relevant agency action that may have turned upon the President's inability to remove the Commissioner. Plaintiff has not identified any new regulations, agency policies or directives Commissioner Saul installed that may have affected her claims. Plaintiff thus fails to show how or why § 902(a)(3) removal clause possibly harmed her.Wicker v. Kijakazi, 2022 WL 267896, at *10 (E.D. Pa. Jan. 28, 2022) (quoting Lisa Y. v. Comm'r of Soc. Sec., -- F.Supp.3d --, 2021 WL 5177363, at *7 (W.D. Wash. Nov. 8, 2021)).
Thus, following Collins, many courts in this circuit have found that Social Security plaintiffs do not have standing to make a separation of powers challenge because they cannot show a nexus between the unconstitutional removal provision and some compensable harm. See e.g., Jones v. Kijakazi, 2022 WL 1016610, at *12 (D. Del. April 5, 2022) (“Plaintiff does not articulate how the President's inability to remove the Commissioner without cause affected the ALJ's disability determination in this case”) Adams v. Kijakazi, 2022 WL 767806, at * 11 (E.D. Pa. Mar. 14, 2022) (“Plaintiff has failed to establish any nexus between the removal restriction and the denial of her application for benefits”); Kowalski v. Kijakazi, 2022 WL 526094, at *11 (M.D. Pa. Feb. 22, 2022) (Mehalchick, M.J.) (“There is no allegation suggesting a direct nexus between the adjudication of Kowalski's disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner”).
In the instant case, the plaintiff simply contends that she was not afforded a valid administrative adjudicatory process because the removal structure for the Commissioner of Social Security is unconstitutional. However, as this recent caselaw illustrates, much more is needed than a generalized assertion that the unconstitutionality of the removal clause requires a remand. Rather, the plaintiff must show that the removal structure itself caused her harm. See Candusso v. Kijakazi, -- F.Supp.3d - 2022 WL 3447306, at *5 (W.D. Pa. Aug. 17, 2022) (footnotes omitted).
We find the Candusso court's reasoning persuasive and conclude that the plaintiff has not shown the requisite harm to prevail on this separation of powers claim. Indeed, as in that case, the plaintiff here does not point to any changes in the regulations or updated guidance that would have benefitted her had Acting Commissioner Kijakazi been appointed earlier, and thus, cannot establish any compensable harm. Accordingly, we find that these removal provision concerns do not warrant a remand of this case and recommend that the district court decline Gilbert's invitation to remand this case based upon these concerns.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be affirmed and the plaintiff's appeal denied.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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 withinfourteen (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.