Opinion
No. 4:18-cv-0887
04-12-2019
DIANA J. ROHRBAUGH, Plaintiff, v. NANCY BERRYHILL, Deputy Commissioner For Operations of Social Security, Defendant.
(Brann, J.)
()
REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. § 405(g), seeking judicial review of the Deputy Commissioner of Social Security's ("Commissioner") final decision denying Diana J. Rohrbaugh's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be AFFIRMED. I. Background and Procedural History
On January 2, 2015, Rohrbaugh protectively filed for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging her onset date of disability as April 1, 2011. (Tr. 211). Rohrbaugh also filed a Title II application for disabled widow's benefits. (Tr. 213-14). Rohrbaugh amended her alleged onset date to June 24, 2013. (Tr. 10, 69). Rohrbaugh was fifty-seven years old on her alleged disability onset date, which categorizes her "as an individual of advanced age" under the Social Security Act. (Doc. 9, at 2); see 20 C.F.R. § 404.1563(e).
The ALJ decision lists October 6, 2014, as the date of Rohrbaugh's application for disability insurance benefits, and disabled widow's benefits. (Tr. 10) However, Rohrbaugh's actual application date for disability benefits and disabled widow's benefits is January 2, 2015. (Tr. 211) The Court will use the date of January 2, 2015.
Rohrbaugh's claims were initially denied on March 13, 2015. (Tr. 102, 107). On May 8, 2015, Rohrbaugh filed a timely request for an administrative hearing that was subsequently granted. (Tr. 114, 116). With the assistance of counsel, Rohrbaugh appeared and testified before Administrative Law Judge ("ALJ") Howard Kauffman on January 12, 2017, in Harrisburg, Pennsylvania. (Tr. 50). Impartial vocational expert, ("VE") Patricia Posey also testified at the hearing via telephone. (Tr. 53).
During the hearing, Rohrbaugh was asked a series of questions about her living conditions, her activities, and her medical conditions. (Tr. 53-83). Rohrbaugh testified that she lives with her brother who has a brain injury, which she explained he sustained when he was hit by a car when he was three-years-old. (Id. at 72). Rohrbaugh discussed how her brother previously lived with her father but moved in with her when her father passed away eleven years ago. (Id. at 71).
Rohrbaugh testified that her brother helps her with the household chores. (Tr. 72). She described her brother as her "muscle" with regards to things around the house. (Id.) She stated that "he's a pretty strong guy" and that he will help her if she needs something lifted. (Id.) As far as other chores around the house, Rohrbaugh shared that her brother takes the garbage out, empties the dishwasher, cleans out the litter boxes, and helps her with the laundry by carrying the dirty laundry down to the basement and by taking the clean laundry, that Rohrbaugh has washed and folded in the basement, back upstairs. (Id.) Rohrbaugh explained that "he obviously can't do anything dangerous" and stated that "he can't run the vacuum" or do "that kind of thing." (Id.) Rohrbaugh further remarked that she doesn't run the vacuum "that much either" herself. (Id.) Rohrbaugh testified that on a typical day she gets up, takes her "morning meds," then goes downstairs and talks to her brother. (Id. at 75). She remarked that "a lot of time [she and her brother] just stay upstairs in [their] rooms and talk back and forth." (Id.) She shared that her brother "colors all day long," but that she usually drinks coffee, watches television, tries "to pick up a little bit around the house and maybe do some laundry because there's always laundry to do" and that she does "a lot of sitting around not doing much." (Id.).
Rohrbaugh testified that her husband passed away in 2014. (Tr. 72). She stated during the hearing that before he passed away that she didn't have a lot of involvement in his care. (Id.) She remarked that "he was pretty well until he actually passed." (Id.) She shared that "he had a feeding tube which [she] would pour the liquid down," that she would help him by making sure his "bag was full," and would "hand him his medications." (Id.) Rohrbaugh also explained that she and her husband "would drive back and forth to his cancer treatments." (Id.) She shared that hospice helped take care of things and that she "didn't have much to do except sit with him and talk." (Id.)
Rohrbaugh testified that she worked as a legislative clerk for twenty-seven years. (Tr. 54). Rohrbaugh testified that she was off from work for six months for a left shoulder injury through workman's compensation. (Id. at 57). When she returned to work following her workman's compensation leave, Rohrbaugh shared that her doctor gave her a series of restrictions that she believed included that she "wasn't allowed to lift more than twenty pounds" or "to sit for more than two hours or be standing for more than two hours or walking around more than two hours." (Id. at 56). Rohrbaugh testified that she was not able to do her job under those restrictions because at the time she "was still in a lot of pain from the surgery" and that her "hand was still numb so [she] was still dropping boxes." (Id.) Rohrbaugh explained that she worked with the restrictions for "almost a year," but that she ultimately left the job because she decided that she "couldn't do it anymore." (Id. at 56-57). She stated that she "was more of a hindrance than [she] was a help at that point." (Id. at 58). Rohrbaugh stated that when she left work she was "eligible for retirement" so she took retirement and "applied for disability retirement." (Id. at 67).
When asked by the ALJ about the current status of her neck, Rohrbaugh replied that "[i]t's an achy situation" and that she doesn't "have much range of motion anymore in it." (Tr. 59). She stated that her neck causes her headaches but not "migraine[s] anymore," and that she's "been pretty good because [she's] on pain meds all the time so it doesn't escalate to that as much as it once did" but that "it's starting now to again be a problem." (Id.) Rohrbaugh further testified that she does not drive "a lot" because she's "on oxycodone 24/7" and is afraid that if she is in an accident she "could be arrested for being under the influence." (Id. at 60). She stated during the hearing that "in the last two weeks [she's] probably driven three times to go to the store and come back." (Id. at 59). She additionally remarked that her condition "hinders" her driving because she has to "really turn [her] body basically a lot of times to see what's going [on] in the other lane." (Id. at 60). When asked by the ALJ if her physician has told her not to drive, she stated that he has not. (Id.)
Next, the ALJ inquired as to whether Rohrbaugh has any pain going down her arms, Rohrbaugh responded that she has pain in her left arm from her last neck injury, and pain in her left ring finger, pinky finger, and that "part of her palm is still numb from the pinched nerve in there." (Tr. 61). However, she stated that "[i]t's not near as bad as it once was" and that she thinks finally "after all this time" that she "can probably pretty much lift it straight up," that she doesn't "have any pain in [her] shoulder much anymore," and that "they got rid of the bone spurs, in fact, in both shoulders," and that "the pain it's pretty good." (Id.)
When asked by the ALJ to discuss her neuropathy, Rohrbaugh remarked "that [it's] bad." (Tr. 62). She stated that her "toes feel like they've been smashed by hammers" and that "it kind of feels" like she is walking on "sharp stones." (Id.) She explained that she "can't go without shoes anymore," that she has "to be careful what shoes [she] wear[s]," and stated that her feet are "pretty painful on a constant basis now." (Id.) Rohrbaugh further shared that "the tops of [her] feet are now starting to get" a stinging feeling and that "it just literally feels like they've been smashed all the time." (Id.)
Rohrbaugh testified that she does not use a cane or any other walking assistive device, but that she sometimes trips and falls. (Id.) Rohrbaugh stated that "a few years ago" she "tripped in [her] yard and broke [her] ankle for the second time." (Tr. 63). She explained that she did not have to have surgery but that she was in a "boot cast" for about four or more months. (Id. at 64). She stated that she loses her "balance a lot because it's hard" for her to sometimes feel "what [she's] walking on, and if [she] steps on something, [she doesn't] realize [she's] stepping on it until after" she has stepped on it. (Id at 65). Rohrbaugh remarked that she sees her primary care doctor "every three to four months" for her "diabetes and [her] pain management." (Id. at 65-66).
Rohrbaugh stated during the hearing that she has a CPAP machine for her sleep apnea (Tr. 70). However, she stated that the machine does not help her with her sleep "much anymore." (Id.) Rohrbaugh testified that when she was working she used to "fall asleep on the way home from work actually in the car." (Id.) She shared that she hasn't "been back to that sleep doctor for a while" because once she retired and "didn't have to make that drive, or drive that much, [she] didn't worry too much about it, [and] using it." (Id.) Rohrbaugh testified that she hasn't "been tested for sleep apnea for a while," but that she doesn't "sleep much at night." (Id. at 71). When asked why she doesn't sleep much at night, Rohrbaugh replied that her "feet hurt a lot" and that "[i]t takes a long time for the pain meds to take effect in the evening because [she doesn't] realize how bad they hurt until [she] gets off of them." (Id.) She stated that "on occasion" she will wake up in pain and "will have to get up and take more medication to help with that." (Id.) Rohrbaugh explained that the "mixture of waking up all the time and the pain" makes it so she doesn't sleep. (Id.) She further shared that she "sleep[s] off and on during the day too." (Id.) Rohrbaugh stated that she naps "every day, a couple times a day." (Id. at 74).
Rohrbaugh also testified that her memory is "foggy." (Tr. 73). She stated that "somethings [she] can remember really well," but "other things, like when [she's being asked] these things today" she doesn't remember as well because she thinks she has "trouble remembering how far back things happened and sometimes in the way it happened." (Id.) She shared that she doesn't "often remember what [she] ate yesterday" and stated that if she doesn't "write things down, it's an issue" because she "miss[es] things." (Id.)
When asked by her attorney if there's anything else she would like the ALJ to know about her symptoms that hasn't been discussed, Rohrbaugh responded that she "hated having to quit her job" because she "loved her job." (Tr. 74). She explained that her job "was pretty hard to give up" and that is was difficult "to know that all [her] hard work has boiled down to not being able to lift a box or being able to sit very long at the computer." (Id.) Rohrbaugh stated that "to leave that and go home and sit on the couch, which is basically what [she's] been doing since [she] left that job, it's not easy." (Id.) Rohrbaugh further reiterated that "it's not easy to sit home and watch the world go by you." (Id. at 74-75).
In a written decision dated April 21, 2017, the ALJ denied Rohrbaugh's applications for benefits. (Tr. 19). Rohrbaugh appealed the ALJ's decision to the Appeals Council, but the Appeals Council denied Rohrbaugh's request for review on March 8, 2018. (Tr. 1). This makes the ALJ's April 21, 2017, decision the final decision subject to judicial review by this Court.
Rohrbaugh filed a timely complaint in this Court on April 25, 2018. (Doc. 1). In her complaint, Rohrbaugh asserts that the final decision of the Commissioner denying Rohrbaugh benefits is not supported by substantial evidence and is not based on a correct application of the law. (Doc. 1, at 3). On July 5, 2018, the Commissioner filed an answer to Rohrbaugh's complaint. (Doc. 7). In her answer, the Commissioner maintains that the decision denying Rohrbaugh's application for benefits is correct, is made in accordance with the law and regulations, and is supported by substantial evidence. (Doc. 7, at 4-5). This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 10, 11). II. Legal Standards
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 question before this Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that the claimant 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 . . . .").
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); see also 20 C.F.R. § 404.1505(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); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must also 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. 20 C.F.R. § 404.131(a).
Throughout this Report, the Court cites to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on April 21, 2017.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(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).
Between steps three and four, the ALJ must also assess a claimant's RFC. An RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§ 404.1520(e), 404.1545(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).
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. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, the burden then 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. 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064.
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. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
c. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations define medical opinions as "statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions. 20 C.F.R. § 404.1527(a)(1). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. § 404.1527(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2) (explaining what is required for a source's opinion to be controlling).
Where no medical opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinion: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c).
Furthermore, the ALJ's articulation of the weight accorded to each medical opinion must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). "Where a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). III. The ALJ 's Decision
In his April 21, 2017, decision denying Rohrbaugh's claim, the ALJ determined that Rohrbaugh met the insured status requirement of Title II of the Social Security Act through December 31, 2016. (Tr. 12). The ALJ also remarked that "[i]t was previously found that [Rohrbaugh] is the unmarried widow of the deceased insured worker and has attained the age of fifty" and that Rohrbaugh "met the non-disability requirements for disabled widow's benefits set forth in section 202(e) of the Social Security Act." (Id.) Further, the ALJ stated that "[t]he prescribed period ended on August 31, 2015." (Id.)
The ALJ evaluated Rohrbaugh's application for benefits at each step of the sequential process. (Tr. 12-19). At step one, the ALJ found Rohrbaugh had not engaged in substantial gainful activity since the amended alleged onset date of June 24, 2013. (Tr. 13). At step two, the ALJ found that Rohrbaugh had the following severe impairments: degenerative disc disease of the cervical spine status post anterior cervical discectomy and fusion. (Tr. 13). At step three, the ALJ found that Rohrbaugh 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, during the relevant period. (Tr. 14).
Between steps three and four, the ALJ assessed Rohrbaugh's RFC (Tr. 14-18). The ALJ found that Rohrbaugh had the RFC to perform: light work as defined in 20 C.F.R. § 404.1567(b) except she can sit, stand, or walk for six hours each per eight-hour workday and is limited to occasional balancing. (Tr. 15).
At step four, the ALJ found that Rohrbaugh is capable of performing her past relevant work as a classification clerk (Tr. 18). The ALJ stated that Rohrbaugh's past work "includes work as a classification clerk, DOT # 206.387-010, a skilled, sedentary occupation with an SVP code of 5, but [was] actually performed by [Rohrbaugh] at [a] medium" exertional level. (Tr. 18). Based on the testimony of the vocational expert, the ALJ finds that Rohrbaugh "is able to perform" her past relevant work as it is "generally performed" at the sedentary exertional level. (Id.) Therefore, the ALJ determined that Rohrbaugh "has not been under a disability, as defined in the Social Security Act from June 24, 2013, through the date of this decision. (Id.) Thus, the ALJ rendered a finding of not disabled. (Tr. 19).
IV. Analysis
Rohrbaugh asserts that the ALJ's decision contains three errors. (Doc. 9, at 1). Rohrbaugh claims that: (1) the ALJ's step two evaluation is not supported by substantial evidence; (2) the ALJ erred in failing to assess Rohrbaugh's subjective allegations according to Social Security Ruling 16-3p; and that (3) the ALJ erred in his evaluation of Rohrbaugh's treating physician, Dr. Due. (Id.) We shall address each argument seriatim.
a. Whether the ALJ Erred in His Step Two Analysis.
Rohrbaugh avers that the ALJ erred in "finding Rohrbaugh's diabetes mellitus, neuropathy, generalized osteoarthritis, headache, obesity, depression, and anxiety to be non-severe impairments." (Doc. 9, at 7). 20 C.F.R. § 404.1520(a)(4)(ii) requires the ALJ to consider in step two whether a claimant's impairments are (1) medically determinable; and (2) severe or non-severe. According to Social Security Ruling 96-3p, an impairment "is considered severe if it significantly limits an individual's physical or mental abilities to do basic work" and is considered non-severe if it is a "slight abnormality that has no more than a minimal effect on the ability to do basic work activities. Soc. Sec. Ruling 96-3p 1996 WL 374181, at *1. At step two of the sequential evaluation process Rohrbaugh has the burden of proving that her listed impairments are severe. See Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 144 (3d Cir. 2007) (explaining how in step two of the process the burden falls on the claimant to demonstrate that an impairment is severe).
Social Security Ruling 96-3p was rescinded on June 14, 2018, but the regulation was still in effect at the time of the ALJ's decision for Rohrbaugh on April 21, 2017.
Rohrbaugh claims that her impairments of diabetes mellitus, neuropathy, generalized osteoarthritis, headache, obesity, depression, and anxiety are significant enough to affect her ability to perform basic work activities and that "[t]he ALJ should have followed the 'slight abnormality' standard to assess the severity of Rohrbaugh's diabetes mellitus, neuropathy, generalized osteoarthritis, headache, obesity, depression, and anxiety according to SSR 96-3p." (Doc. 9, at 7). However, in step two of the sequential evaluation process a claimant must only prove that one severe impairment exists to move forward in the process. See Traver v. Colvin, No. 3:16-CV-178, 2016 WL 5719932, at *10 (M.D. Pa. Oct. 3, 2016) (discussing how step two of the process is a threshold analysis because a claimant must only show one severe impairment to move to step three). Consequently, the Third Circuit has found that when an ALJ finds even one impairment to be severe at step two that the plaintiff has met the threshold for step two, "the sequential evaluation process continues, and any impairment that is found to [be] non-severe is harmless error because the ALJ still has to consider all impairments, both severe and non-severe, in the RFC analysis." Sachs v. Colvin, No. 3:15-CV-1725, 2017 WL 1134367, at *10 (M.D. Pa. Mar. 27, 2017).
Therefore, even if the ALJ should have found that Rohrbaugh's diabetes mellitus, neuropathy, generalized osteoarthritis, headache, obesity, depression, and anxiety were severe impairments at step two, remand is not applicable here because the ALJ identified severe impairments for Rohrbaugh at step two of the process, so any error on the ALJ's part with regard to Rohrbaugh's non-severe impairments is harmless error. See Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 (3d Cir. 2007) (explaining that "[b]ecause the ALJ found in [the claimant's] favor at step two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless"); Shedden v. Astrue, No. 4:10-CV-2515, 2012 WL 760632, at *9 (M.D. Pa. Mar. 7, 2012) (stating that "[a] failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two").
In this case, the ALJ found at step two that Rohrbaugh had a severe impairment of degenerative disc disease of the cervical spine status post anterior cervical discectomy and fusion. (Tr. 17). Therefore, even if incorrect, the ALJ's finding that Rohrbaugh's additional impairments were non-severe is harmless error not applicable for remand. Salles, 229 Fed. App'x at 145.
b. Whether the ALJ erred in his evaluation of Rohrbaugh's subjective allegations
Rohrbaugh asserts that the ALJ erred in his evaluation of Rohrbaugh's subjective allegations. (Doc. 9, at 10-13). When evaluating a claimant's subjective allegations, the ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3, 2016 WL 119029. First, the ALJ must determine whether there is a medically determinable impairment, that can be shown by medically acceptable clinical and laboratory diagnostic techniques, that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). An individual will not be found to be "disabled based on alleged symptoms alone." See Soc. Sec. Ruling 16-3 2016 WL 119029 at *4 (explaining that "[i]f there is no medically determinable impairment, or if there is a medically determinable impairment, but the impairment(s) could not reasonably be expected to produce the individual's symptoms" those symptoms will not be found to affect the claimant's "ability to perform work-related activities").
Once the ALJ has found that a medically determinable impairment is established, the ALJ then evaluates the claimant's allegations about the intensity, persistence, or functionally limiting effects of her symptoms against the evidence of record. Id. This evaluation requires the ALJ to "examine the entire record, including the objective medical evidence," the plaintiff's testimony, and any other relevant evidence. Id. On March 28, 2016, Social Security Ruling 96-7p, which provided guidance on assessing the credibility of a claimant's subjective symptoms, was rescinded and superseded by Social Security Ruling 16-3p, which instructs adjudicators when "determining whether an individual is disabled" to "consider all of the individual's symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the individual's record." Id. at * 2. Here, the ALJ found that Rohrbaugh's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but that Rohrbaugh's subjective allegations "concerning the intensity, persistence, and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record." (Tr. 15).
Rohrbaugh claims that "[t]he ALJ's reason does not support a finding that [Rohrbaugh] does not suffer from disabling pain," that "the ALJ failed to explain how conservative treatment makes" [Rohrbaugh's] subjective allegations less consistent, and that the ALJ did not consider or explain "the combined impact of [Rohrbaugh's] physical and mental health impairments." (Doc. 9, at 11-12). Rohrbaugh further argues that "the ALJ failed to conduct a proper pain analysis" that the ALJ "should have considered the location, duration, frequency, and intensity of [Rohrbaugh's] pain, precipitating and aggravating factors, dosage and effectiveness of any pain medications, other treatment for the relief of pain and functional restrictions" and that "the ALJ should have considered [Rohrbaugh's] functional limitations and medication side- effects while evaluating the limiting effects of her symptoms." (Doc. 9, at 12).
While social security hearings are non-adversarial and ALJ's seek to help claimants in developing the record, the burden of proving that one is disabled in steps one through four of the sequential evaluation process is on the claimant, not the ALJ. See Durden v. Colvin, 191 F. Supp. 3d 429, 449-50 (M.D. Pa. 2016) (stating that the claimant has the burden "to develop the record regarding his or her disability because the claimant is in a better position to provide information about his or her own medical condition"). As evidenced above, Rohrbaugh puts forth several different claims of errors that she asserts the ALJ committed in his evaluation of Rohrbaugh's subjective allegations and pain. (Doc. 9, at 10-13). However, Rohrbaugh does not demonstrate how any of these claims would alter the outcome of the ALJ's decision. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d. Cir. 2005) (discussing how "a remand is not required here because it would not affect the outcome of the case"); see also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining how "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination)."
Nonetheless, the ALJ, in this case, demonstrated his consideration of Rohrbaugh's pain and subjective allegations repeatedly within the decision. (Tr. 15-18). More specifically, the ALJ discussed how Rohrbaugh "requires daily pain medication for her pain" but is able to engage in "daily activities" related to her own personal care, the care of her disabled brother, light household cleaning, meal preparation, and is able to drive. (Id. at 15). As the Court in Durden v. Colvin, 191 F. Supp. 3d 429 (M.D. Pa. 2016), stated, "it is permissible for such activities to be used to assess a claimant's [subjective allegations] in light of any true contradiction between his or her alleged severity of symptoms and the claimant's activities." Id. at 442.
The ALJ further noted that Rohrbaugh has had "improvement in pain with medication," discussed and accounted for how Rohrbaugh has "increased pain [when] lifting more than twenty pounds," and took into consideration how Rohrbaugh is able to "perform light activities of daily living despite her neck pain." (Id. at 16-17). The ALJ also stated that he considered that Rohrbaugh "has some difficulty dressing and bathing," that "her pain affects her ability to sleep," and that "[s]he is not able to carry a laundry basket" when the ALJ was evaluating Rohrbaugh's subjective allegations. (Id. at 15).
The ALJ demonstrated how in assessing the consistency of Rohrbaugh's subjective allegations with the evidence in the record, the ALJ took into account the conservative treatment Rohrbaugh received, for instance for her knee pain, which according to the record did "not require ongoing treatment" or "an assistive device for the most part" for Rohrbaugh to ambulate. (Id. at 17). The ALJ also pointed out that, although Rohrbaugh has a cane, she "rarely uses it." (Id. at 16). The ALJ further explained, related to the conservative nature of Rohrbaugh's treatment, that "[t]he level and frequency of [Rohrbaugh's] treatment suggests that [Rohrbaugh's] neck pain is only intermittent in nature." (Id. at 16). The ALJ also discussed how Rohrbaugh "was able to return to full-time work with a twenty pound weight restriction," that "the bulk of [Rohrbaugh's] treatment records were dated prior to [her] amended onset date," that "postoperatively [Rohrbaugh] has required conservative care, such as physical therapy, injections, and use of pain medication," and that Rohrbaugh's "pain is generally controlled with medication." (Id.)
Similarly, the ALJ stated in his decision that the "symptoms [of Rohrbaugh's depression and anxiety] are generally controlled with medication," that Rohrbaugh "does not require psychiatric treatment," and stated that Rohrbaugh's "mental impairments of depression and anxiety do not cause more than minimal limitations in [Rohrbaugh's] ability to perform basic mental work activities." (Tr. 13). Contrary to Rohrbaugh's claims, the ALJ also discussed and considered the side effects of Rohrbaugh's medications in his decision. (Id.) He specifically stated that Rohrbaugh takes oxycodone and soma, and that the medications cause Rohrbaugh "tiredness and drowsiness." (Id.) Moreover, the ALJ explained, once again, that "[d]espite [Rohrbaugh's] pain, [Rohrbaugh has been] able to perform light household chores, prepare meals, drive a vehicle, and shop for necessities" all of which the ALJ stated is "evidence support[ing] that [Rohrbaugh can] perform light lifting and carrying."
The Commissioner asserts that "the ALJ did consider [Rohrbaugh's] pain and how it was treated" and "reasonably determined" after considering all of the evidence that Rohrbaugh "did not have the pain to the degree that she alleged." (Doc. 10, at 17). The Court agrees that the ALJ properly evaluated Rohrbaugh's subjective allegations and finds, in light of all of the information stated above regarding the ALJ's analysis and explanations, that there is substantial evidence to support the ALJ's determinations.
c. Whether the ALJ Erred in his Evaluation of Dr. Due
Rohrbaugh claims that the ALJ erred in his "evaluation of Rohrbaugh's treating physician, Dr. Due" and that "the ALJ's finding is not supported by substantial evidence." (Doc. 9, at 13). The opinion of a treating source is afforded controlling weight when it is well-supported by objective medical evidence that is consistent with substantial evidence in the record. See 20 C.F.R. § 404.1527; Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). ALJs have the sole authority to assign weight to medical opinions entered into the record. See Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014) (discussing how "the ALJ is free to accept some medical evidence and reject other evidence, provided that [the ALJ] provides an explanation for discrediting the rejected evidence"). It is the duty of the ALJ to explain the rationale for the weight afforded. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The purpose of this is to allow for meaningful judicial review. Burnett v. Comm'r Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).
Rohrbaugh states that "even though the record may contain substantial evidence to support the ALJ's decision, the Third Circuit has consistently required such explanations [as to why an opinion was rejected] when an ALJ rejects the medical opinion of a treating physician." (Doc. 9, at 15). Contrary to what is being claimed, the ALJ in this case did not outright reject the medical opinions of Dr. Due. (Tr. 16-17). Instead, the ALJ assigned partial and limited weight to various opinions of Dr. Due's, which the ALJ accompanied with meaningful explanations describing the ALJ's rationale for discounting the opinions. (Id.)
Rohrbaugh's claim of error with regard to the medical opinion evaluation is focused on the physical residual functional capacity questionnaire Dr. Due completed in December 2016. (Doc. 9, at 13-16). The ALJ assigned limited weight to the December 2016 opinion in which "Dr. Due opined that [Rohrbaugh] would only be able to sit, stand, and walk for less than two hours total in an eight-hour day with a sit/stand option and [would need the] ability to take unscheduled breaks." (Tr. 17). The ALJ explained that Dr. Due's December 2016, opinion provided a significant increase in the limitation of Rohrbaugh's "abilities when compared to [Dr. Due's] opinion in June 2015." However, the ALJ clarified that "the medical evidence [in the record] does not show that [Rohrbaugh's] condition worsened to the extent that [Dr. Due's December 2016] opinion suggests" from June 2015, to December 2016. (Id.)
In his decision, the ALJ explained that he afforded partial weight to the June 2015 medical opinion of Dr. Due. (Tr. 16). The opinion stated that Rohrbaugh "could lift and carry up to twenty pounds, sit, stand, and walk for four hours total in an eight-hour workday with a sit/stand option" that Rohrbaugh would need the "ability to take unscheduled breaks," that Rohrbaugh could "perform limited postural activity and activities that require movement of the neck," and that Rohrbaugh "would be absent from work more than four days per month as a result of [her] degenerative disc disease and [her] treatment." (Id. at 17).
Likewise, the ALJ assigned partial weight to the opinions of Dr. Due from October 2011 and 2012. (Tr. 16). The ALJ recounted how Dr. Due opined at the time that Rohrbaugh "could not perform duties as required by her previous employment, as her chronic restrictions," following her worker's compensation surgery on her left shoulder, "included lifting no more than twenty pounds or pushing or pulling more than fifty pounds" and that Rohrbaugh was restricted from "sitting, standing, [or] walking [for] more than two hours at a time." (Id.) The ALJ explained that these opinions from 2011 and 2012, were given before Rohrbaugh's amended alleged onset date of June 24, 2013. (Id.) The ALJ also explained how "Dr. Due failed to consider [Rohrbaugh's] ability to perform past work as customarily performed," at the sedentary exertional level, rather than at the medium level in which Rohrbaugh performed her past relevant work. (Id. at 16-18).
The ALJ detailed how these three "opinions are generally consistent with [Rohrbaugh's] ability to perform light activities of daily living despite her neck pain and her clinical presentation" and specifically pointed to her "5/5 strength of the extremities, normal reflexes, and mild restriction in cervical range of motion" for support. (Tr. 17). The ALJ explained that he afforded these opinions only partial weight because the ALJ found "that [Rohrbaugh] does not require a sit/stand option, four work absences per month or unscheduled breaks in light of the conservative level of treatment received," Rohrbaugh's "improvement in pain with medication, and the frequency of [Rohrbaugh's] headaches as reported by Dr. Due," which the ALJ stated, citing an exhibit, occur "one-two times per month and last less than twenty-four hours." (Id.)
In explaining his rationale for having accorded limited weight to Dr. Due's December 2016 opinion, the ALJ contrasted the previous opinions of Dr. Due, specifically the June 2015 opinion with Dr. Due's December 2016 opinion. (Tr. 17). In his decision, the ALJ described how Dr. Due's December 2016 opinion provided a significant increase in the limitation of Rohrbaugh's "abilities when compared to [Dr. Due's] opinion in June 2015", but that "the medical evidence" in the record did "not show that [Rohrbaugh's] condition worsened to the extent that [Dr. Due's December 2016] opinion suggest[ed]" from June 2015 to December 2016. (Id.) The ALJ further explained that in making the opinion "Dr. Due considered the effects of [Rohrbaugh's] diabetes, neuropathy, obstructive sleep apnea, and osteoarthritis/degenerative joint disease in rendering [the December 2016] opinion" but that the ALJ found "that these conditions do not cause more than [a] minimal limitation in [Rohrbaugh's] functional abilities" and that "there is no evidence of severe degenerative joint disease or neuropathy via EMG or MRI" to support otherwise. (Id. at 17).
Rohrbaugh claims that "the record shows that [her] condition worsened since June 2015." (Doc. 9, at 16). Rohrbaugh points to how she "was averaging about four oxycodone pills a day," that she "sought urgent care for neck pain," was "rear ended in a motor vehicle accident," and "exhibited tenderness along the left side of her neck and upper trapezius on the left." (Id.) However, Rohrbaugh does not articulate how these additional conditions support Dr. Due's December 2016 opinion. Moreover, as the Commissioner highlights, and the record demonstrates, Rohrbaugh "sought medical attention the same day she was rear-ended" from urgent care, rated her neck pain from the accident a two or three out of ten, was subsequently diagnosed as having a "sprain of ligaments of cervical spine [and] pain in her left shoulder," and voluntarily selected not to return for further treatment despite being given the option from the urgent care doctor to call as necessary or to return for a follow-up in two weeks. (Tr. 1287-1289); (Doc. 10, at 23). The urgent care doctor noted that he was going to treat Rohrbaugh "conservatively." (Id. at 1289). He prescribed that Rohrbaugh treat her symptoms by either "icing the area, performing "exercises [which he noted] Rohrbaugh was already familiar with," or by taking the "opiate medications" or "muscle relaxants" that Rohrbaugh already had at home "from previous injuries." (Id.)
Rohrbaugh further asserts that since "the ALJ found that Dr. Due's opinion was unsupported by the record, [the ALJ] should have requested clarification from Dr. Due regarding Rohrbaugh's functional limits." (Doc. 9, at 15). For support, Rohrbaugh points to a case, Smolen v. Charter, 80 F.3d 1273 (9th Cir. 1996), which stated that "[i]f the ALJ thought he needed to know the basis of [the doctor's] opinions in order to evaluate them, [the ALJ] had a duty to conduct an appropriate inquiry for example, by subpoenaing the physicians or submitting further questions to them." Id. at 1288. (Doc. 9, at 16). However, in Iturralde v. Berryhill, No. 3:16-CV-01597, 2018 WL 1465273 (M.D. Pa. Mar. 1, 2018), report and recommendation adopted by WL 1453181 (M.D. Pa. Mar. 23, 2018), where the claimant asserted that the ALJ was required to contact the claimant's doctor if the ALJ had questions about the medical opinion, the Court stated that "it is within the ALJ's discretion to decide whether he needed explanation from [the doctor] in order to make his decision." Id. at *6; see also Williams v. Astrue, No. 10-CV-499S, 2012 WL 1114052, at *3 (W.D.N.Y. Mar. 30, 2012) (explaining that "[t]he duty to recontact arises only where an ALJ lacks sufficient evidence to evaluate opinion evidence or make a disability determination"). Additionally, the Court in Iturralde found "that the ALJ did not err in deciding not to contact [the doctor]" or in allocating little weight to the doctor's opinion because the ALJ "explained and supported his reasoning in according [the doctor's] opinion little weight with substantial evidence in the record." Iturralde 2018 WL 1465273, at *6. In this case, where the ALJ had sufficient evidence to make a disability determination and adequately explained and supported his reasoning for discounting the medical opinion evidence of Dr. Due, the Court finds that the ALJ was not required to recontact Dr. Due. (Tr. 16-17).
As previously noted, an ALJ is tasked with according weight to medical opinions contained within a record. See Plummer, 186 F.3d at 429 "when a conflict in the evidence exists, the ALJ may choose whom to credit 'but cannot reject evidence for no reason or for the wrong reason.' The ALJ must consider all the evidence and give some reason for discounting the evidence that [the ALJ] rejects.") (citation omitted). Here, where the ALJ clearly explained the basis of his decision, indicating which evidence he discounted and which he relied upon in weighing Dr. Due's opinions the Court finds that the ALJ's evaluation of Dr. Due's medical opinions was reached based upon a correct application of the relevant law and is supported by substantial evidence. V. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Deputy Commissioner of Social Security be AFFIRMED and that Rohrbaugh's requests for the award of benefits or remand for a new administrative hearing be DENIED.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge Dated: April 12, 2019 DIANA J. ROHRBAUGH, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. No. 4:18-cv-00887 NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 7, 2019. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: April 12, 2019