Opinion
CIVIL ACTION No. 17-cv-03046-JCJ
01-31-2019
CHRISTINA WILLIAMS, Plaintiff v. NANCY A. BERRYHILL, Commissioner of Social Security Defendant
REPORT AND RECOMMENDATION
Christina Williams ("Ms. Williams" or "Claimant") alleges the Administrative Law Judge ("ALJ") erred in denying her application for Disability Insurance Benefits ("DIB"). See Plaintiff's Brief ("Pl.'s Br.") at p. 1. Specifically, Ms. Williams argues that the ALJ committed reversible error by 1) failing to consider and improperly discounting evidence of impairment and improperly concluding that Ms. Williams has the residual functional capacity to perform prior relevant work; 2) failing to use the proper legal standard to deny Ms. Williams' claim for benefits; 3) finding the ability to sustain work despite the impact of the combination of impairments; and 4) failing to take into account Ms. Williams' prior good work history in assessing her credibility. Additionally, Ms. Williams argues that a remand is warranted for consideration of new evidence.
After careful review of the record, I find that the ALJ's determination is supported by substantial evidence, and the ALJ did not improperly fail to develop the record. I also find that remand for consideration of new evidence is not appropriate. I respectfully recommend that the decision of the ALJ be upheld.
PROCEDURAL HISTORY
Ms. Williams filed an application for DIB on November 13, 2013. R. 624-25. On February 7, 2014, Ms. Williams' claim was denied. R. 572-76. ALJ Stuart Gauffreau held a hearing on November 19, 2015 pursuant to Ms. Williams' timely request. R. 516, 518 [Request for hearing], 518-559 [Transcript of hearing]. On December 16, 2015, ALJ Gauffreau issued a decision denying Ms. Williams' application for DIB. R. 497-515. The Appeals Council denied Ms. Williams' request for review on May 12, 2017. R. 1-4.
This request for review pursuant to 42 U.S.C. § 405(g) followed.
FACTUAL HISTORY
Ms. Christine Williams was forty-nine years old when she filed her application for benefits. ECF Doc. No. 9, p. 1. She lives with her parents and her grown son. R. 521. She graduated from high school and has some college credits. R. 522. Ms. Williams has a lengthy work history that includes periods of employment as a collections manager for a used car dealer, (R. 522), collections clerk for a medical equipment company, (R. 523), a "unit clerk" for a nursing home, (Id.), customer service representative at Retriever Waste Company, (R. 524), receptionist for Woodland Dental Associates, (R. 525), customer service representative at Power Home Remodeling, (Id.), self-employment as a cleaner, (id.), and finally a title clerk for Kia of Coatesville (R. 526). The ALJ questioned Ms. Williams closely with respect to the responsibilities at each of these jobs, especially as they related to lifting and carrying heavy objects. R. 522-26.
The ALJ asked Ms. Williams to describe the reasons that she believes she is now prevented from working. R. 527. The following exchange ensued:
ALJ: [L]et's talk about that. What do you believe prevents you from working?
Pl: I have the pain in my neck, down the arm.
ALJ: Which arm?
Pl: The right arm. The lower back down to the feet. I have lupus, diverticulitis and irritable bowel. There's several others that I, I know I'm high cholesterol. I don't know the rest.
ALJ: What sort of treatment are you receiving?
Pl: Injections in both areas.
ALJ: For your neck and your back?
Pl: Yes.
ALJ: Have they helped?
Pl: Not really.
ALJ: Are you taking pain medication?
Pl: Yes.
ALJ: Does that help?
Pl: Sometimes.
ALJ: Have you done physical therapy?
Pl: Back when I had my neck operated on, yes.
ALJ: And that was when?
Pl: That was 2001.
ALJ: You had a, was it a fusion surgery? Is that yes?
Pl: Yeah, confusion, a fusion and a cadaver.
ALJ: Have you talked about any other surgical options with your doctor?
Pl: No, we have not discussed that.
ALJ: Other than the injections and the pain medication are you receiving any treatment or doing anything else for your neck and your back?
Pl: No, I am not.
ALJ: Are you receiving any other treatment from other doctors on a regular basis?R. 527-28.
Pl: My family doctor.
ALJ: And what do you see the family doctor for?
Pl: My depression.
ALJ: Do you take medication for that?
Pl: Yes.
ALJ: Does that medication help you?
Pl: Yes.
ALJ: Any other, do you see the primary care doctor for anything else?
Pl: Normal things that need to be done.
ALJ: Are you getting any treatment for the diverticulitis or the irritable bowel syndrome?
Pl: Yes, through Dr. Krozer (sic).
ALJ: What treatment do you get for those?
Pl: I take medicine for them.
After describing her gastrointestinal issues, Ms. Williams described for the judge her daily limitations due to her pain:
ALJ: What's a normal day like for you?
Pl: I get up and if I'm able to do anything I do it, but most of the time I, I'm in too much pain to do anything.
ALJ: What sort of things do you do to pass the time?
Pl: I'm on the couch watching television basically.
ALJ: Do you do any chores?
Pl: No.R. 529-30.
ALJ: Someone else does them?
Pl: Um-hum.
ALJ: Who does the chores?
Pl: My parents.
ALJ: Do you do laundry?
Pl: No.
ALJ: Grocery shopping?
Pl: If someone is with me, yes.
ALJ: And what do you need someone with you to do?
Pl: To carry the bags.
ALJ: Do any cooking or meal preparation?
Pl: Sometimes.
ALJ: What kind of things would you make?
Pl: Normal food, but just whatever they wanted that night.
ALJ: You get together with friends?
Pl: No.
ALJ: You do anything outside of the house?
Pl: No.
In her Function Report, Ms. Williams reported that she is "unable to work due to severe/chronic pain daily. When I did work was let go due to excessive absenteeism from the pain." R. 667. She reported that she does not do "much of anything due to severe pain," and has trouble finding a comfortable position to sleep. R. 668. However, she did not report any problems with self-care other than pain while shaving, and she reported being able to prepare regular meals weekly, and running the vacuum cleaner. R. 669. She reported going out of the house, although not often, shopping by phone and computer, handling her finances, and spending time with family. R. 670-71. Ms. Williams reported on the supplemental function questionnaire that she has "constant pain thru (sic) out body," located in her arm, neck, legs, and back, which is experienced "all day." R. 675. On the date she filled out the form, she reported taking Abilify, Aleve, Singulair, Mevacor, Prilosec, and Cymbalta for her various ailments. R. 674.
Ms. Williams' mother, Martha Romeo, provided a third-party function report, which described in nearly identical (and somewhat vague) language, that Ms. Williams suffers constant pain and is depressed. R. 658. Ms. Romeo repeated Ms. Williams' answers concerning her ability to handle her personal care (only shaving causes "constant pain,") and confirmed that Ms. Williams cooks meals and runs a vacuum cleaner in their home. R. 659-660. Ms. Romeo said that her daughter does not handle stress or changes in routine well. R. 664.
The handwriting on this form appears identical to that on Ms. Williams' form.
Plaintiff's counsel attempted to elicit more detail from Ms. Williams during the hearing concerning the nature of her pain, with limited success. Ms. Williams responded to counsel's questioning by saying that she was in pain in her arm and lower back, and that showering, dressing, and drying her hair all caused her pain when she prepared for the hearing that morning. R. 531. Ms. Williams described numbness in the fingers of her right hand, but that she did not experience this every day, and she described a "bad day" as one in which, "I just can't do anything, and I stumble." R. 532. She described taking more oxycodone painkillers on her "bad days." R. 533. Ms. Williams testified that she would be out of breath after walking, "maybe a flight of steps." R. 539.
In response to her counsel's questioning, Ms. Williams testified that she has depression and bipolar disorder, for which she takes Cymbalta, Seroquel and Zoloft, which are prescribed by her primary doctor. R. 537. She described being unable to concentrate due to her bipolar disorder, but said this would happen "if I don't take my meds," but stated that she did take her medication for this condition as directed without assistance. R. 537-38.
Ms. Williams also testified that she suffers from migraine headaches, "three days a week, possibly four." R. 540. They come on without warning and "put me down for the day" according to her testimony. Id. She takes Fioricet or Butalbital for the headaches, which she says she started having 20 or 30 years ago. R. 541.
The vocational expert, (VE) Patricia Scutt testified concerning each of Ms. Williams' prior jobs, describing them as light or medium, with specific vocational preparation ("SVP") scores that varied from 2 to 7. R. 553-55. Ms. Scutt noted that there was some variation in the amount of weight which Ms. Williams indicated she lifted in each job when filling out her work history in 2013 and her testimony at the hearing, and the ALJ stated that she should refer to Ms. Williams' testimony where there was differentiation. R. 553-54.
The ALJ proposed the following hypothetical:
Please assume a hypothetical individual of the Claimant's age and education and with the past jobs that you described, further assume that this individual is limited to sedentary work, limited to frequent use of hand controls and foot controls, no overhead reaching with the right arm, frequent reaching in other directions bilaterally, frequent handling and fingering, no climbing of ropes, ladders or scaffolds, no kneeling or crawling, occasional climbing of ramps and stairs, occasional balancing, stooping and crouching, occasional exposure to
unprotected heights, moving mechanical parts, extreme temperatures, humidity and wetness and dust, odors, fumes and pulmonary irritants, limited to no more than a moderate noise and light environment. Can the hypothetical individual perform any of the past jobs you described as actually or generally performed?R. 555-56. The ALJ confirmed in response to inquiry from the VE that she should assume there are no limitations as to the SVP. The VE advised that the hypothetical individual could perform the collections position, the office manager position, the customer service representative and the work at the waste management facility. The VE noted that each of these positions would be "[a]s per the DOT, not as performed." R. 556. In a modified hypothetical where the individual would be "further limited such that she was limited to occasional reaching in other directions with the right upper extremities" rather than frequent reaching, the VE noted that the individual "would not be able to perform the jobs noted in the past. They all require frequent reaching, handling and fingering. And it's bilateral." R. 556-57.
The ALJ also questioned the VE regarding the "time off task" tolerance for the positions listed in the first hypothetical. The VE advised that
VE: [b]ecause they are semi-skilled and skilled employers are more lenient in personal and sick days. Instead of ranging from seven to ten for unskilled positions, semi-skilled and skilled positions will range about 10 to 15 per year.R. 557-58.
ALJ: Those are, that's the absentee tolerance?
VE: Yes.
ALJ: 10 to 15 per year?
VE: Yes.
ALJ: How about time off task tolerance?
VE: Anything under twenty percent would be approved by an employer. Greater than twenty percent off task in any position would be subject to firing.
The record contains treatment records from Dr. Steven Grossinger of Grossinger Neuropain Specialists, primary care records from Dr. John Munshower of Family Physicians of Middletown, ER and radiology records from Crozer-Chester Medical Center, and gastroenterologist Dr. Joyann Kroser of Crozer Gastroenterology Associates. R. 847-1380. None of Ms. Williams' treating physicians provided opinion documents.
Consultative examination reports from Pramod Digamber, M.D., R. 829-43, and Gordon Arnold, M.D., 560-70, are included in the record and were reviewed and considered by the ALJ. R. 510. With respect to Ms. Williams' reported mental impairments of anxiety, depression, and bipolar disorder, the ALJ reviewed the opinion of the state agency consulting psychologist, Michael Suminski, Ph.D., dated January 2014. R. 503, 563-64.
DISCUSSION
A claimant is disabled if she is unable 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." 20 C.F.R. § 416.905; see also Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009). An ALJ must conduct a five step sequential analysis when reviewing a claim. For this analysis, the ALJ considers whether a claimant: (1) is engaged in substantial gainful employment; (2) has one or more severe impairments, which significantly limit the claimant's ability to perform basic work; (3) has impairments that meet or equal the criteria associated with impairments in the Social Security Regulations so as to mandate a disability finding; (4) has a Residual Functional Capacity ("RFC") to perform work with the claimant's limitations and can return to the claimant's previous work with that RFC; and (5) can perform any other work existing in the national economy. See 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Ramirez v. Barnhart, 372 F.3d 546, 550-51 (3d Cir. 2004).
In reviewing an ALJ's disability determination, I must accept all the ALJ's findings of fact if supported by substantial evidence or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)); see also 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). However, the ALJ's legal conclusions and application of legal principles are subject to "plenary review." See Payton v. Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006).
A. The ALJ Adequately Considered and Did Not Improperly Discount Evidence of Impairment in Concluding that Ms. Williams has the RFC to Perform Prior Relevant Work.
The ALJ made the following finding regarding Ms. Williams' residual functional capacity:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of sedentary work as defined in 20 CFR 404.1567(a) with the following nonexertional limitations: the claimant can frequently use hand controls and foot controls, but she cannot perform overhead reaching with the right arm. She can perform frequent reaching in other directions bilaterally as well as frequent handling and fingering. She is unable to climb ropes, ladders, or scaffolds; and cannot perform kneeling or crawling. She can occasionally climb ramps and stairs; occasionally balance, stoop and crouch. She can have occasional exposure to unprotected heights, moving mechanical parts, extreme temperatures, humidity and wetness, and dust, odors, fumes, and pulmonary irritants. She is limited to no more than a moderate noise and light environment. In addition to normal breaks, she would be off task up to 10% of the time in an 8-hour workday.R. 504-05. His decision contains extensive discussion of the medical records of Drs. Munshower and Grossinger, as well as the consultative examination reports of Drs. Digamber and Arnold, and Michael Suminski, Ph.D.
Ms. Williams first focuses on her problems with pain in her right arm and back. She argues that the "ALJ's discussion gives the impression that most exam findings were normal despite some abnormal objective findings noted on examination in both May 2013 and March 2015." Pl. Br. 3. She contends that the ALJ "paint[ed] an inaccurate picture" of Ms. Williams' problems and erroneously concluded that she retains the residual functional capacity to perform her prior relevant work. Id. She then references a number of notes from Dr. Steven Grossinger's pain clinic, and contends that the ALJ erred for not considering this evidence, arguing that the ALJ engaged in "cherry-picking" because he noted records from primary care physician Dr. John Munshower and the consultative examiner which detailed normal findings on physical examination. She faults the ALJ for citing normal physical examination notations during doctor visits that were listed as being for issues unrelated to her spine, such as chest congestion and bipolar disorder. She argues that the ALJ's failure to discuss the specific notes from Dr. Grossinger "was prejudicial because exam findings not considered by the ALJ show that Ms. Williams has more functional limitations than found by the ALJ." Id. at 6. After acknowledging that the ALJ discussed an August 2015 EMG which showed chronic right C6-7 radiculopathy and "median sensory neuropathy of the right wrist," (Pl. Br. 6-7 citing to R. 508, 1106, 1136), Ms. Williams alleges error by the ALJ for failing to then discuss an August 6, 2015 examination by Dr. Grossinger that noted "reduced sensation of the right upper extremity and 'weakness with grip and elbow flexion on the right,'" claiming, "[t]his makes a difference because the EMG results showing cervical radiculopathy and neuropathy of the wrist coupled with exam findings of reduced sensation and grip have an impact on Ms. Williams' ability to perform her prior work." Pl. Br. 7. Ms. Williams suggests (without clearly stating) that the ALJ's finding that Ms. Williams cannot perform overhead reaching with her right arm but "can perform frequent reaching in other directions bilaterally as well as frequent handling and fingering," id., citing R. 704, was error. Therefore, since the VE testified that a limitation to "occasional" bilateral reaching and "occasional" handling and fingering in the right upper extremity would prevent Ms. Williams from performing her past relevant work, she extrapolates, the ALJ should have awarded benefits.
Ms. Williams bolsters this argument by suggesting that other records from Dr. Grossinger "show[] that Ms. Williams is unable to perform frequent bilateral handling and fingering and frequent reaching in directions other than overhead reaching with the right arm. . . ." Pl. Br. 8. She lists notes from her visits on August 6, 2015, September 2, 2015, and October 6 2015. None of these notes, however, include any information geared specifically to Ms. Williams' ability to reach, handle, or finger, but instead are general statements of her reported symptoms including "numbness and tingling with occasional shooting discomfort," "neck pain radiating to the right shoulder and arm," and the like. Id. As stated above, Dr. Grossinger did not provide any opinion in this case, nor did any other treating physician provide an opinion with respect to Ms. Williams' physical abilities or limitations. Instead of pointing to such a medical opinion, therefore, Ms. Williams uses these specific instances of pain reported to a medical professional to argue that the "ALJ's finding that Ms. Williams has the RFC to perform sedentary work with frequent bilateral handling and fingering and frequent reaching in directions other than overhead reaching with the right arm is not supported by substantial evidence. Id. 8-9.
I find this argument unpersuasive. In limiting her argument to just those entries made by pain specialist Dr. Grossinger, and extrapolating from them an opinion that the doctor never provided, Ms. Williams ignores significant evidence in the record, cited to by the ALJ, that supports the ALJ's findings. It is Ms. Williams who in fact engages in "cherry-picking," rather than the ALJ. She also invites me to re-weigh the evidence and reach a different conclusion, than the ALJ, a luxury I am not permitted. Chandler v. Comm. of Social Security, 667 F.3d 356, 359 (3d Cir. 2011).
I find that the ALJ's summary of Ms. Williams' problems with her back, found in the record at R. 506-08, is an appropriate summary of her subjective complaints, her treatment records, and the findings of the consultative examiner, Pramod Digamber, M.D., who saw Ms. Williams in January 2014. As the only opinion by a medical professional who examined Ms. Williams addressing her spinal issues, it was appropriate for the ALJ to address those findings in some detail. The ALJ stated:
Dr. Arnold Gordon's RFC opinion, discussed below, was provided after review of records and the CE of Dr. Digamber, but Dr. Gordon did not examine Ms. Williams. R. 565-68.
Consultative examination of January 2014 reflected a past medical history of chronic neck pain since 2001 with cervical fusion in 2001; and a history of re-injury in approximately 2011, resulting in recurrent neck pain. The claimant reported continuous pain with occasional exacerbation; which was improved somewhat with pain medications, but was never completely gone. She indicated that nothing helps with her pain, and her pain worsened with lifting or doing too much. She noted a history of pain radiation to right upper extremity, tingling and numbness. When asked about her activities of daily living, the claimant stated that she cooks, cleans and does laundry. She indicated she needs assistance shopping. She reported showering daily and dressing herself. She stated she watches TV, listens to radio and reads. Physical examination showed the claimant weighed 217 pounds. She was in no acute distress. Gait was normal; she could walk on her heels/toes without difficulty and perform full squat. Stance was normal; without any assistive device. She needed no help changing or getting
on/off the exam table. She was able to rise from a chair without difficulty. Straight leg raise was negative to 60 degrees bilaterally in the supine position, and confirmed in sitting position. Examination of the cervical spine was within normal limits except for slight limitation in range of movement. There were no abnormalities of the thoracic spine or joints, extremities, or in fine motor activity of hands. There were no trigger points evident. Neurological exam reflected no abnormalities. Cervical spine x-ray showed status post ventral surgical fixation of C5 though (sic) C7 (Exhibit B3F).R. 507. (Dr. Digamber's report is found at R. 831-838).
This summary demonstrates a thorough review and understanding of the examining physician's report, and includes both positive and negative findings. Opinions from non-treating sources who have examined a claimant are generally accorded more weight than those from a non-examining source, though they do not receive as much weight as a treating source's opinion. 20 C.F.R. § 416.927(c) (1), (d) (1); see Chandler, 667 F.3d at 361. Testimony from a non-examining source also must be considered by the ALJ, but is not entitled to deference. 20 C.F.R. § 416.927(f); SSR 96-6p, 1996 WL 374180 at *2. Ultimately, the ALJ assigned "partial weight to the opinion of consulting physician, Pramod Digamber, M.D., dated January 2014. . . . I find the opinion is internally inconsistent, and it is not consistent with the record, as a whole. The physician overstates the claimant's ability to lift and carry, and understates her ability to walk." R. 510.
Non-treating sources are usually doctors who have examined the claimant, but not in the context of an ongoing treatment relationship. 20 C.F.R. § 416.902. A source is non-treating if a claimant visits a doctor solely to obtain a report in support of his or her claim. Id.
A non-examining source is an acceptable medical source who has not examined the claimant, but who provides a medical opinion of the case. 20 C.F.R. § 416.902.
Contrary to Ms. Williams' argument, the ALJ thoroughly summarized treatment records from both primary care physician John Munshower, D.O. and pain management specialist Steven Grossinger, D.O. R. 507-08. As with the summary of the consultative examination report, the ALJ did not limit his discussion to only those records which demonstrated Ms. Williams' ability to function normally, but discussed her documented limitations as well. The Commissioner succinctly set forth the ALJ's summary of the voluminous records from Ms. Williams' primary care physicians at Center for Family Health:
Ms. Williams' treating physician at Center for Family Health is Dr. John Munshower, however, some of the records are signed by one of the physician's assistants.
As the ALJ detailed, Dr. Munshower's treatment records demonstrated that, while Plaintiff experienced many of the pain complaints she testified about, those complaints were not repeated at each appointment and her examinations were usually unexceptional.
That is not to say that the ALJ hid any of the limitations found by Dr. Munshower. Far from it. In fact, the ALJ began by explaining that Dr. Munshower examined Plaintiff in January 2014, and that Plaintiff reported that her "pain was ok until a few days ago" (R. 507, 923). She reported neck pain that radiated across both shoulders and clavicles, and caused tingling in her right hand (R. 507, 923). As the ALJ observed, Plaintiff denied weakness and numbness, and had no x-rays for 10 years (R. 507, 923). On examination, Plaintiff's BMI was 34.92; she was in no acute distress; there was no evidence of focal deficits; and her sensation, coordination, muscle strength, and tone were normal (R. 507, 925-27).
As the ALJ explained, subsequent examinations with Dr. Munshower reflected continued pain complaints, but typically normal examination findings (R. 507-08). For example, as the ALJ discussed, in February 2014, Plaintiff was in no acute distress (R. 507, 931). Her neck was normal (R. 931-32). In March 2014, as the ALJ discussed, Dr. Munshower examined Plaintiff and reported normal gait, normal alignment and mobility of the neck and spine, and full strength and range of motion in her extremities (R. 507, 939). Plaintiff's neurological examination was normal, as well (R. 939). In May 2014, Plaintiff reported joint pain and tenderness (R. 964). But again, as the ALJ discussed, Dr. Munshower's May 2014 examination notes reported: "[n]ormal gait, neck and spine with normal alignment and mobility. Extremities with normal range of motion and strength, no joint enlargement or tenderness" (R. 507, 939). Plaintiff returned to Dr. Munshower in July 2014 with a cold (R. 977). But as the ALJ explained, Plaintiff denied having any back pain, and her physical examination was unchanged from May 2014 (R.507, 980-81).
The ALJ also discussed Plaintiff's October 2014 "acute" visit with Dr. Munshower where Plaintiff reported a migraine headache and shoulder, knee,
hip, and knuckle pain (R. 507, 1003). Again, however, Plaintiff's examination showed normal gait, normal alignment and mobility of neck and spine, normal extremity range of motion and strength, and no neurological focal deficits (R. 507, 1007). As the ALJ explained, Plaintiff's November 2014 examination was also normal (R. 507, 1039-40). In January 2015, Plaintiff had another acute visit for left hip and back [pain] (R.507, 1045). The ALJ explained that, on examination, Plaintiff had no costovertebral angle tenderness, but had left trochanter joint tenderness on palpation and pain on external rotation of her left leg (R. 507-08, 1048-49).Comm. Resp. 6-7.
I also find that the ALJ did not cherry-pick references in the pain management specialist's records that supported his finding that Ms. Williams could continue to perform some of her previous jobs. The ALJ summarized those records as follows:
Pain management records dated March 2015 reflect the claimant's complaints of continued neck pain, 8-10/10 in severity, described as sharp and intermittent, with radiation from her right shoulder down to her four fingers. She additionally complained of numbness and tingling that radiated from her right shoulder down to her four fingertips. She stated she had bifrontal headaches, which occurred twice a week. She complained of low back pain, 8/10 in severity, described as sharp and intermittent, with radiation to the right buttock, right though (sic) and right heel. She reported having tingling and numbness in right lower back that radiated down her right lower extremity to the heel. Physical examination showed decreased range of motion of cervical spine. There were tender trigger points in the right trapezius with muscle spasms on the right low paravertebral and trapezius ridge. Lumbar spine had decreased range of motion, and tenderness along the paraspinal area. Straight leg raise was positive. EMG completed in July 2015 evidence[d] right L5 radiculopathy. Injections were administered. An August 2015 EMG evidenced chronic right C6-7 radiculopathy and right median sensory neuropathy of the right wrist. Follow-up examination of September 2015 was essentially unchanged. The claimant received sacroiliac trigger point injections. In October 2015, her complaints were unchanged. The claimant received various injections from October 2013 through October 2015 (Exhibits B1F, B F (sic), B8F, B10F, B11F).R. 508.
Exhibit B1F is the February 2014 opinion of state agency consulting physician Arnold Gordon, M.D. (R. 565-68). Dr. Gordon is the only physician who provided an opinion of physical residual functional capacity. He did not examine Ms. Williams, but did review and rely upon records from Grossinger Neuropain Specialists, Dr. Digamber's consultative examination of January 14, 2014, and records from Center for Family Health (Dr. Munshower). Id. As noted infra, the ALJ partially accepted Dr. Gordon's findings, but he did not specifically quote or cite to Dr. Gordon's RFC findings. His inclusion of "Exhibit B1F" at several points in his summary, however, clearly demonstrates that he reviewed and took into consideration this report.
Nor did the ALJ ignore Ms. Williams' testimony at the hearing regarding her back and neck pain, and the limitations she believes that pain causes. The ALJ included in his decision the following fair and accurate summary of her testimony:
I note the claimant testified at the hearing, that she was in too much pain to do anything; she did not do laundry or household chores; and there were days she could not get out of bed because of her pain. She further indicated that she stopped working because of lifting and her illness. However, I note that the claimant indicated on a Function Report that she was laid off from her job because of absenteeism. I further note the claimant did not indicate there has been any change in her social activities since her condition began. She indicated that she had no problems with personal care, but had some difficulty shaving due to chronic pain. She indicated that she prepared meals, vacuumed and drove at times. She failed to specify any limitations relating to her conditions. However, she alleged she could only walk 500 yards, before needing to rest for 20 minutes (Exhibit B5E). I further noted that during her January 2014 consultative examination, the claimant advised the examiner she could cook, clean and do laundry; shower and dress herself daily; and she watches TV, listens to radio and reads (exhibit B3F).R. 509.
Having reviewed and summarized the evidence regarding Ms. Williams' primary complaint, that is her back and neck pain which interferes with her right arm and fingers, the ALJ concluded:
I have considered the medical evidence, the treatment received, and the medications taken and found that all of these elements do not support her alleged limitations regarding daily activities and her inability to perform work-related activities. The claimant's back treatment was routine and conservative. Although she received injections, she did not attend physical therapy and there were no discussions regarding any modalities of aggressive treatment or surgeries. In addition, the medical evidence, and in particular, the clinical signs and objective evidence contained in treatment notes and reports, do not reveal limitations of function consistent with a complete inability to perform work-related activities.
In this regard, I note that the claimant alleged re-injury to her neck area in approximately 2011, which was treated conservatively with injections. She again alleged onset of pain in 2011 during consultative examination in January 2014. However, the claimant reported to her primary care provider that her neck pain returned in January 2014, without incident. Moreover, consultative examination
findings showed normal gait; the claimant could walk on her heels/toes without difficulty and perform full squat; normal stance, without any assistive device. The claimant needed no help changing or getting on/off the exam table; she could rise from a chair without difficulty. Examination of the cervical spine was within normal limits except for slight limitation in range of movement, and there were no abnormalities of the thoracic spine or joints. I further note primary care provider records, which reflect occasional exacerbation of pain, improved somewhat with pain medications. Examination in February 2014 showed normal gait and normal alignment and mobility of the neck and spine; extremities were with (sic) normal range of motion and strength; and there was no joint enlargement or tenderness. Follow-up examination (sic) were relatively consistent and essentially unchanged. Conversely, pain management records are inconsistent with primary care records and reflect ongoing complaints of pain and limitations (Exhibits B1F, B3F, B7F, B8F, B10F, B11F).R. 509-10.
Dr. Gordon's opinion with respect to Ms. Williams' RFC based upon her records from treating physicians and Dr. Digamber's CE included: (1) Ms. Williams could occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds, (2) could stand and/or walk six hours of an eight hour workday, and (3) could sit with normal breaks for a total of about six hours in an eight hour workday. R. 565. The ALJ accepted this opinion "only in part, as I find the opinion is not consistent with the record as a whole. The opinion does not accurately account for the claimant's exertional limitations and current level of functionality. In sum, the medical record as a whole supports a conclusion that the claimant can perform physical requirements of work at the sedentary exertional level, with the acknowledged limitations, considering her severe impairments." R. 510. In other words, the ALJ found Ms. Williams to have more limitations than either the state agency consulting physician or the consultative examiner found.
My independent review of the record convinces me that the ALJ carefully reviewed all of Ms. Williams' treatment records, the opinions of the consultative examiner and the state agency consulting physician, and did not reach a decision that is contrary to controlling case law or Social Security rules and regulations. While a treating source's opinion is entitled to controlling weight when supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence in the record, see 20 C.F.R. § 416.927(c)(2); SSR 96-2p, 1996 WL 374188 (July 2, 1996), there is no such deference for a treating physician's notes. A physician's opinion may be rejected "on the basis of contradictory medical evidence." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); see also Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (contradictory opinions by state agency physicians provided a sufficient basis for refusing to give a treating physician's conclusory opinion controlling weight); Brown v. Astrue, 649 F.3d 193, 197 (3d Cir. 2011) (ALJ "clearly explained" why she gave greater weight to the opinion of a medical consultant than to treating physician). An opinion may be accorded "more or less weight depending upon the extent to which supporting explanations are provided." Plummer, 186 F.3d at 429 (citing Newhouse, 753 F.2d at 286).
As noted supra, here we have only treating records of Ms. Williams' physicians, none provided an opinion for purposes of her claim for disability benefits.
A treating source is a "physician, psychologist, or other acceptable medical source" who provides a patient with "medical treatment or evaluation," and has an "ongoing treatment relationship with the patient." 20 C.F.R. § 404.1502. A medical source may be considered a treating source where the claimant sees the source "with a frequency consistent with accepted medical practice for the type of treatment . . . required for [the claimant's] condition(s)." Id.
While these general rules can be helpful, the Third Circuit has been clear that an ALJ is not bound by a rigid hierarchy of deference. See Chandler, 667 F.3d at 361. Thus, for instance, a non-examining physician's opinion may be given more weight than a consultative examining physician's, based on its consistency with other medical evidence. See Salerno v. Commr. of Soc. Sec., 152 Fed. App'x 208, 209-10 (3d Cir. 2005) (not precedential).
"While the ALJ is, of course, not bound to accept physicians' conclusions, he [or she] may not reject them unless he first weighs them against other relevant evidence and explains why certain evidence has been accepted and why other evidence has been rejected." Cadillac v. Barnhart, 84 Fed. App'x 163, 168 (3d Cir. 2003) (not precedential) (quoting Kent v. Schweiker, 710 F.2d 110, 115 n.5 (3d Cir. 1983)) (alteration in original, internal quotations omitted). In choosing to reject a treating physician's assessment, an ALJ may not make "speculative inferences from medical reports" and may not reject a treating physician's opinion "due to his or her own credibility judgments, speculation or lay opinion." Morales, 225 F.3d at 317.
I find that the ALJ here carefully reviewed the records of all of the treating doctors, and the opinions of the consultative examiner and the state agency consulting physician, and took that entire record into consideration in finding that Ms. Williams
has the residual functional capacity to perform the full range of sedentary work as defined in 20 C.F.R.404.1567(a) with the following nonexertional limitations: the claimant can frequently use hand controls and foot controls, but she cannot perform overhead reaching with the right arm. She can perform frequent reaching in other directions bilaterally as well as frequent handling and fingering. She is unable to climb ropes, ladders, or scaffolds; and cannot perform kneeling or crawling. She can occasionally climb ramps and stairs; occasionally balance, stoop and crouch. . . .R. 504.
I respectfully recommend that the ALJ's decision be upheld and Ms. Williams' first argument be rejected.
B. The ALJ Did Not Use an Improper Legal Standard to Deny Ms. Williams' Claim for Benefits.
Ms. Williams' second argument takes issue with the ALJ's conclusion "that the clinical signs and objective evidence 'do not reveal limitations of function consistent with a complete inability to perform work related activities.'" Pl's. Br. 9, quoting the ALJ's decision at R. 509 (emphasis added by Plaintiff in her brief). She argues that she "is not required to show a complete (emphasis again added) inability to perform all work-related activities," pursuant to Medical-Vocational Rule 201.14, 20 C.F.R. Part 404, Appendix 2. Id. That chart "provides for an award of benefits for a person who is unable to perform prior work, is limited to sedentary work and is closely approaching advanced age, defined as age 50-54, with a high school education or more and skilled or semiskilled work background with skills that are non-transferable." Id. at 9-10. Therefore, Ms. Williams argues, because she cannot perform her prior relevant work, she is entitled to an award of benefits pursuant to Rule 201.14, and the ALJ made a legal error in failing to award benefits pursuant to this section. Id.
Success on this second issue is predicated on Ms. Williams' success on her first issue, that is, I must find that the ALJ erred in finding her able to perform her past relevant work at Step Four before moving to the question of whether she can perform any work in the national economy, at Step Five. Because I have found no reason to take issue with the ALJ's finding at Step Four, Ms. Williams' second argument also fails.
As argued by the Commissioner, the ALJ appropriately applied 20 C.F.R. §404.1520(a)(4), the five-step sequential evaluation process. That section explains:
If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step. Before we go from step three to step four, we assess your residual functional capacity.
(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps.20 C.F.R. §404.1520(a)(4).
Because the ALJ found Ms. Williams could still perform some of the jobs she previously held, he found her "not disabled" at Step Four and did not proceed to Step Five. Medical-Vocational Rule 201.14, 20 C.F.R. Part 404 Appendix 2, provides that a person closely approaching advanced age, who is a high school graduate or more, with non-transferable job skills, will be considered disabled when she cannot perform her past relevant work. Here, the transferability of skills is not relevant, as the ALJ found, backed by sufficient evidence in the record, that Ms. Williams is capable of performing several of her past jobs. Thus, the ALJ did not commit a legal error, and he was not required to award benefits pursuant to Rule 201.14. I respectfully recommend that Ms. Williams' second argument be rejected.
C. The ALJ Did Not Err in Finding Ms. Williams Maintained the Ability to Sustain Work Despite the Impact of the Combination of Her Impairments.
In Ms. Williams' third claim for relief, she argues that the combined impact of her impairments was not properly considered by the ALJ in his denial of benefits. Her brief details evidence in the record of (1) "chronic cervical radiculopathy, neuropathy of the wrist, reduced grip and elbow flexion on the right and exam findings that include reduced range of motion of the cervical spine as well [as] spasm and tenderness; Pl. Br. 10-11, (2) obesity (noting that SSR 02-1p "indicates that obesity can increase the severity of musculoskeletal impairments," and acknowledging that the ALJ included obesity as a severe impairment and noted that records show that she is 'morbidly obese, with recorded weights in excess of 200 pounds, at 66 inches in height, and BMIs in excess of 34;'") id. at 11-12, (3) "ongoing episodes of abdominal pain and diarrhea;" id. at 12, (4) "migraine headaches three to four days per week;" id. at 14-15, and (5) "COPD, lupus causing granuloma annulare and bipolar disorder/depression/anxiety." Id. at 15. Ms. Williams argues that her migraine headaches alone would cause more work absences than the ten to fifteen days per year testified to by the VE as acceptable for semi-skilled to skilled work, and therefore, "[t]he ALJ erred in failing to find that the combination of Ms. Williams' impairments would prevent her from performing even sedentary work on a regular and continuing basis." Id.
The Commissioner counters that this argument seeks an impermissible reweighing of the evidence. Comm. Resp. 14-19. I agree.
The Social Security regulations require an ALJ to consider multiple impairments in combination.
In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process. If we do not find that you have a medically severe combination of impairments, we will determine that you are not disabled.20 C.F.R. §404.1523.
An ALJ is required to set forth sufficient reasons for his decision to permit meaningful review. Burnett v. Comm. of Social Security Admin., 220 F.3d 112, 119-20 (3d Cir. 2000), but he is not required to use any particular language or adhere to a particular format in conducting his analysis. Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). As noted by the Commissioner in her response, the ALJ addressed each of the impairments that Ms. Williams now revisits in her brief. Comm. Resp. 15. At step two, the ALJ listed three of Ms. Williams' impairments as severe: obesity, disorders of the gastrointestinal system, and disorders of the spine. R. 502. He categorized Ms. Williams' hyperlipidemia and migraine headaches as non-severe impairments, initially noting that although they were cited in the record at Exhibits B2F and B9F, the record did "not substantiate any work-related limitations from these conditions." Id.
In the "Applicable Law" section of the ALJ's decision, the ALJ specifically noted his duty, in both step two and step three, to examine an "impairment" and a "combination of impairments." R. 501. Additionally, the ALJ stated, "[b]efore considering step four of the sequential evaluation process, I must first determine the claimant's residual functional capacity. . . . In making this finding, I must consider all of the claimant's impairments, including impairments that are not severe." Id. (Citations omitted).
The ALJ also discussed Ms. Williams' medically determinable mental impairments of anxiety and depression at step two. R. 503. He found those impairments to be non-severe, after considering the four broad functional areas set out in the disability regulations for evaluating mental disorders, known as the "Paragraph B" criteria. Id. The ALJ found that Ms. Williams has mild limitations in activities of daily living, mild limitations in social functioning; and mild restrictions with regard to concentration, persistence or pace. The ALJ noted that the record contains no episodes of decompensation of extended duration, or indeed of any duration at all. Id. I see nothing in my review of the record that contradicts these findings with respect to her medically determinable mental impairments.
With respect to Ms. Williams' chronic obstructive pulmonary disease and lupus, the ALJ found that there was a lack of objective evidence in the record to establish that either of these conditions are medically determinable impairments. The ALJ noted that there are no firm diagnoses of either condition from an acceptable medical source in the record, and a claimant's allegations of symptoms alone is insufficient to establish a medically determinable impairment. R. 504. I see nothing in the record to contradict this conclusion on the part of the ALJ. The record contains several instances in which Ms. Williams reported both conditions to physicians or in reports, however, no medical sources have documented a diagnosis of either condition. The ALJ then specifically found that Ms. Williams "did 'not have an impairment or combination of impairments' that met or medically equaled any listed impairment, and cited and discussed the listings for disorders of the spine, inflammatory bowel disease, peripheral neuropathy, and the governing SSR for evaluating obesity." Comm. Resp. 15, quoting R. 504.
Regarding his finding that obesity qualifies here as a severe impairment, the ALJ stated, "[w]hile there is no specific listing for obesity, this impairment was considered in conjunction with the claimant's other impairments, as instructed by SSR 02-1p. While the claimant's weight could reasonably be expected to have some effect on the ability to perform certain work activities, these limitations are accounted for in the residual functional capacity set forth below." R. 504.
Plaintiff's brief contains nearly six pages of discussion of various findings at doctor or hospital visits, and treatments or medications she received. As is aptly noted by the Commissioner in her response to this argument, which covers a nearly equal number of pages, the ALJ spent considerable time and effort in his RFC analysis reviewing the same doctors' records, and summarizing the findings of those medical records, including both those that support Ms. Williams' argument that she is disabled, and those that do not. Comm. Resp. 14-19.
Although the argument is entitled, "[w]hether the ALJ erred in finding ability to sustain work despite the impact of the combination of impairments," Ms. Williams actually makes only one conclusory statement with regard to "the impact of the combination of impairments" in her brief, namely, that her migraine headaches alone would have resulted in more work absences than the VE testified would have been permitted. Pl. Br. 15. By implication, Plaintiff presumably is suggesting that her other impairments, i.e. her back and arm pain, her gastrointestinal issues, her COPD and her mental impairments would have caused additional absences as well. I see no way, however, that I might make such a finding on the record before me, without improperly reweighing the evidence already reviewed and carefully considered by the ALJ.
Embedded in Plaintiff's argument is a second assertion, however, that the ALJ erred by finding that Ms. Williams' migraine headaches are a non-severe impairment at step two, because such a finding was not supported by substantial evidence. Plaintiff cites to 20 C.F.R. §404.1520(c) (2015) and SSR 85-28, for the proposition that, "[s]tep two of the sequential analysis is a de minimus screening to determine if an impairment causes more than a slight abnormality." P. Br. 14-15. She alleges that the frequency and severity of her headaches "both alone and in combination with her other impairments would prevent her from sustaining work eight hours a day, five days a week or an equivalent schedule, as required for competitive work." Section 404.1520 addresses the evaluation of disability in general, and subsection (c) sets forth that the individual "must have a severe impairment." The regulation states:
Plaintiff cites to SSR 96-8p at the end of this statement, which provides for the definition of "regular and continuing basis" as meaning "8 hours a day, for 5 days a week, or an equivalent work schedule," but is otherwise unhelpful to her argument, as that particular ruling deals exclusively with the assessment of residual functional capacity at steps four and five, and Plaintiff is arguing here that the ALJ erred at step two.
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.20 C.F.R. §404.1520(c). (Emphasis added).
The Commissioner alleges two fatal problems with Plaintiff's assertion. First, she notes that because the ALJ found that Plaintiff had several severe impairments and continued the sequential evaluation process, any error was harmless. This is an accurate statement of the law and I agree that any error would be harmless. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005), Salles v. Comm. of Social Sec., 229 Fed. App'x. 140, 145 n. 2 (3d Cir. 2007). Second, and more importantly, as noted in the regulation quoted above, a claimant must establish not just a diagnosis of an impairment but must demonstrate that the impairment significantly limits the claimant's ability to do basic work activities.
The ALJ stated in his decision that "the record does not substantiate any work-related limitations from" Plaintiff's migraine headaches or her hyperlipidemia. R. 502. Simply put, although Ms. Williams has stated, both to her doctors and at the hearing, that she suffered from migraine headaches multiple times per week, the objective medical evidence did not support these statements. Ms. Williams claims to have frequently experienced migraine headaches for 20 or 30 years, R. 541, and has received medication (Butalbital and Fioricet) for some time and has repeatedly advised her physicians that the medications helped this condition. The ALJ cited to Ms. Williams' medical records from her primary physician, Dr. John Munshower, from May 21, 2013 through October 1, 2015, (referenced by the ALJ as Exhibits B2F and B9F) to support his conclusion. R. 502. As the Commissioner argues, those records contain a number of references to migraine headaches, but none document any objective medical evidence that Ms. Williams' migraine headaches are of such severity and frequency that she is unable to work. See Comm. Resp. 17; R. 785, 787, 789, 1003, 1060, 1064, 1072-74. The ALJ also summarized records from Dr. Munshower and Dr. Grossinger that addressed Ms. Williams' headaches during several visits. The ALJ noted both positive and negative findings by both doctors. I agree with the Commissioner's statement, "[i]n sum, the ALJ evaluated the evidence that Plaintiff alleges he failed to discuss, came to a different conclusion about it, and explained why he came to that conclusion. Substantial justification supports the ALJ's decision." Comm. Resp. 18. I respectfully recommend that the ALJ's decision be upheld with respect to both his findings concerning Ms. Williams' combination of conditions, and with respect to his finding at step two that Ms. Williams' migraine headaches are a non-severe impairment.
For example, at R. 785, during an office visit on October 9, 2013, Ms. Williams complained of diarrhea, vomiting, and migraine headache. She denied "disturbances in coordination, numbness, tingling, visual disturbances, and weakness." Dr. Munshower prescribed Fioricet with codeine to relieve her headache. On October 10, 2014, Dr. Munshower's notes document that Ms. Williams "presents today for c/o migraine headache which developed last night. Pt. is out of Fioricet and nothing else is relieving headache. Pt. denies visual changes denies nausea or vomiting or phonophobia, pt c/o light sensitivity. Pt. denies loss of coordination, slurring numbness or tingling." R. 1003. On a follow-up visit on March 25, 2015, Ms. Williams reported migraines "> 15 times per month; stress makes it worse." R. 1060. There is no evidence in the record that Ms. Williams ever sought treatment by a specialist nor sought medications beyond those prescribed by her primary physician (Fioricet and Butalbital) for her headaches. According to the records of Dr. Munshower, the medications she received relieved her headaches. R. 1003.
D. The ALJ Did Not Improperly Ignore Ms. Williams' Work History.
Ms. Williams contends that the ALJ "failed to consider her good work history in assessing her credibility." Pl. Br. 17. An ALJ is required to consider subjective complaints by the claimant and evaluate the extent to which those complaints are supported or contradicted by the objective medical evidence and other evidence in the record. 20 C.R.F. §§ 404.1529(a); 416.929(a); see also Hartranft v. Apfel, 181 F.3d 358, 362. The evaluation of subjective testimony of disabling pain is an important part of the ALJ's analysis and he is required to examine anything in the record that may confirm or discount such evidence from a claimant. The Third Circuit has specifically instructed that an extended work history should be considered:
We have previously addressed the issue of how to assess the credibility of a claimant's testimony about disabling pain. Testimony of subjective pain is entitled to weight if it is supported by competent medical evidence. Smith v.
Califano, 637 F.2d 968, 972 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979). Furthermore, when the claimant has worked for a long period of time, his testimony about his work capabilities should be accorded substantial credibility. Dobrowolsky, 606 F.2d at 409. Taybron meets this criterion. Every doctor who examined Taybron acknowledged he was in great pain. Taybron's work record shows that he worked steadily in the twelve year period prior to his accident. His testimony, therefore, is entitled to substantial credibility.Taybron v. Harris, 667 F.2d 412, 415 n. 6, (3d Cir. 1981).
In Dobrowolsky, the claimant worked as a meat cutter, despite repeated hospitalizations for ischemia and coronary insufficiency. He was also diagnosed with degenerative disc disease, lumbosacral strain, cervical strain, sciatic neuritis, and hypertension. Dobrowolsky, 606 F.2d at 403-04. Following his release from the hospital following an automobile accident, he attempted to work sporadically for another year. He testified at the hearing that recurrent pain prevented him from performing even light work. The Third Circuit stated:
[T]estimony of subjective pain and an inability to perform even light work is entitled to great weight, particularly when, as here, it is supported by competent medical evidence. Moreover, when the claimant has a work record like Dobrowolsky's twenty-nine years of continuous work, fifteen with the same employer, his testimony as to his capabilities is entitled to substantial credibility.Dobrowolsky, 606 F.2d at 41.
In Corley v. Barnhart, 102 Fed.App'x. 752, 755 (3d Cir. 2004), the Third Circuit found no error in the ALJ's failure
to factor into his assessment of the claimant's credibility the fact that he had a long and productive work history. In support of this argument, Corley relies on cases in which courts have viewed the testimony of claimants with long and productive work histories as highly credible. However, in each of these cases the claimant not only had a long and productive work history, but also showed evidence of severe impairments or attempted to return to work, and neither of these circumstances exist here. See, e.g. Dobrowolsky, 606 F.2d at 403.
Therefore, the ALJ did not err by failing to afford Corley heightened credibility based solely on his work history.Id.
Ms. Williams cites to Judge Schmehl's reversal of a Magistrate Judge's report and recommendation in Diggs v. Colvin, No. 13-cv-04336, 2015 WL 3477533 (E.D. Pa. May 28, 2015) as further authority in support of her argument. Marcella Diggs worked for twenty-six years, twenty-four of them continuously. Despite finding multiple errors with the ALJ's credibility determination, including a failure to take this work history into account, the Magistrate Judge did not recommend remand. The district court declined to accept the recommendation and remanded the case to the ALJ for further proceedings. The district court stated:
Counsel for the claimant in that case is the same as in the case here.
First, it is well established that when a claimant has a lengthy work history of continuous work, his or her testimony is entitled to "substantial credibility." . . . Nonetheless, "a claimant's work history alone is not dispositive of the question of his credibility, and an ALJ is not required to equate a long work history with enhanced credibility." Thompson v. Astrue, 2010 WL3661530 (W.D. Pa. Sept. 20, 2010).
In the instant matter, the Magistrate Judge noted that the ALJ failed to discuss Plaintiff's work history and found this "failure to expressly note plaintiff's seventeen year work history to not constitute reversible error." (Note: In fact, the administrative record shows that Plaintiff had a twenty-six year work history with continuously covered quarters from 1980 to 1981 and from 1984 to 2008.) I find that the ALJ should have recognized and discussed Plaintiff's long work history in evaluating her credibility. See, Weber v. Massanari, 156 F.Supp.2d 475, 486 (E.D. Pa. 2001) (where the plaintiff worked at the same store for 15 years, "testimony regarding subjective complaints from a claimant with a long work record is entitled to substantial credibility."); Bond v. Astrue, 2011 WL 710207 (W.D. Pa. 2011) (directing the ALJ to consider on remand the plaintiff's long work history in the context of his overall credibility determination); Jester v. Astrue, 2009 WL 348738 (E.D. Pa. Feb 11, 2009) (finding that in the case of a plaintiff who worked for approximately 20 years before she stopped working due to her disability, "[t]he ALJ erroneously failed to recognize that plaintiff's long
work history afforded substantial credibility to her testimony concerning her limitations") (citing Dobrowolsky 606 F.2d at 409)).Id. at *1.
Social Security regulations direct ALJ's to look at a variety of types of evidence when weighing credibility of a claimant on the subjective question of pain. Section 404.1529(c)(3) provides:
Consideration of other evidence. Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. The information that you, your treating or non-treating source, or other persons provide about your pain or other symptoms (e.g., what may precipitate or aggravate your symptoms, what medications, treatments or other methods you use to alleviate them, and how the symptoms may affect your pattern of daily living) is also an important indicator of the intensity and persistence of your symptoms. Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations and restrictions which you, your treating or non-treating source, or other persons report, which can reasonably be accepted as consistent with the objective medical evidence and other evidence, will be taken into account as explained in paragraph (c)(4) of this section in reaching a conclusion as to whether you are disabled. We will consider all of the evidence presented, including information about your prior work record, your statements about your symptoms, evidence submitted by your treating or non-treating source, and observations by our employees and other persons.20 C.F.R. §404.1529(c)(3) (emphasis added).
As the finder of fact, the ALJ may accept or reject, partially or fully, subjective complaints if he finds them not credible based on this other evidence in the record. See Baerga v. Richardson, 500 F.2d 309, 312 (3rd Cir.1974). The ALJ is empowered to evaluate the credibility of witnesses and his determination is entitled to deference by this Court. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3rd Cir.1983).
I agree with the Commissioner that the Social Security regulations, and Third Circuit precedent, do not require an ALJ to address a claimant's work history in every case. Additionally, my review of Ms. Williams' work history confirms the Commissioner's second argument on this point, that Ms. Williams' work history is not at the level of that found to require remand in other cases in this Circuit. I therefore respectfully recommend that the ALJ's decision not be remanded on this issue.
As the Commissioner noted, Comm. Resp. 20, the ALJ addressed Ms. Williams' testimony that she was "in too much pain to do anything." R. 509, citing Plaintiff's testimony at R. 529. The ALJ then found that Ms. Williams' self-reported daily activities, including handling her personal care, preparing meals, vacuuming, driving, leaving her house alone, using the telephone and computer, and socializing with family, were more consistent with her past reports, as to the consultative examiner, than they were with her testimony. R. 507, 509. The ALJ also noted that the limitations reported in her testimony were not matched by evidence in the medical record, which documented only routine and conservative treatment for her back, no physical therapy, and no discussion of more aggressive treatment or surgeries. R. 509. Likewise, the ALJ found that the severity of Ms. Williams' reported gastrointestinal complaints were not supported by the medical evidence. R. 510.
Unlike the cases cited above, in which claimants frequently worked continuously for decades, often for the same employer, Ms. Williams' work history appears to be much more sporadic. She reported that she worked as a "unit clerk" in a nursing home for six months in 2013, from May to October, as a collections manager at a car dealer from 2000 to 2003, and as an office manager for a repair shop from 2000 to 2003. (Ms. Williams testified that these two positions were for the same employer, and she split her time between them). R. 522. As noted by the Commissioner, although Ms. Williams reported working 48 hours per week and earning $9.00 per hour at the car dealer, her certified earnings records document yearly OASDI totals of just $5,614 in 2000, $6900 in 2001, $9,700 in 2002, and $10,300 in 2003. R. 626; Comm. Resp. 22. Had Ms. Williams worked for the full year at the reported rate, her earned income would have been in excess of $20,000. Comm. Resp. 22. Ms. Williams' highest earnings year according to her earnings record was 2008, when she earned $19,468 while employed at Environmental Waste Solutions, Inc. R. 627-28. While there are no "zero" years between 2000 and 2013, it is clear from her earnings statements that she was not employed full time for all of those years. R. 626-29. It thus does not appear that Ms. Williams established the "exemplary" work history that other claimants have relied upon to argue that the ALJ should have specifically addressed that work history in assessing credibility.
Here, the ALJ appropriately took into consideration many factors, including Ms. Williams' own testimony, the third-party function report of her mother, and the extensive medical records, and contrasted Ms. Williams' ability to function and her conservative treatment with her reports of debilitating pain. The ALJ and found that those reports of debilitating pain were only partially borne out by the evidence in the medical records. Nevertheless, he factored Ms. Williams' reports of pain into account by finding that Ms. Williams had more limitations than those reported by the doctors. The decision demonstrates that the ALJ weighed all of the factors and fashioned an appropriate RFC, from which the VE was able to opine that Ms. Williams could still perform some, but not all, of her past positions. As a consequence, the ALJ found Ms. Williams not disabled under the law. I recommend that this finding not be disturbed.
E. No Remand is Necessary Under Sentence Six of 42 U.S.C. § 405(g).
"When a claimant relies on evidence that was not before the ALJ, a district court may remand to the Commissioner only if the evidence is 'new,' 'material,' and good cause exists for not previously presenting the evidence to the ALJ. See Szubak v. Sec. of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984); see also 42 U.S.C. § 405(g)." Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 145 (3d Cir. 2007). The legal standard for this type of remand is drawn from sentence six of 42 U.S.C. § 405(g).
Here, the records submitted by Ms. Williams' counsel to the Appeals Council can be considered "new," as they are for treatment she received after the hearing with the ALJ, which occurred on November 19, 2015. The new records span a time-frame from February 2016 through September 2016. Pl. Br. 17-18; R. 11-68, 381-454. In order to determine if the records are "material," the Plaintiff must establish that there is a reasonable possibility that the new evidence would have changed the outcome. Szubak, 745 F.2d at 833. If the evidence does not relate to the "time period for which benefits were denied," or if it is evidence of a "subsequent deterioration of the previously non-disabling condition," then it is not material. Id.
The "new" records consist of (1) mental health treatment records from Crozer Keystone for approximately one year beginning on February 8, 2016, which show a diagnosis of bipolar disorder, R. 11-68, and (2) records from Brandywine Hospital for admission in September 2016 due to a myocardial infarction (NSTEMI), acute hypoxic respiratory failure, acute COPD exacerbation, severe sepsis secondary to pneumonia and renal failure, R. 140, 381-454. Pl. Br. 17-18.
The relevant time period is October 14, 2013, (alleged onset date) to December 16, 2015, (the date of the ALJ's decision). I agree with the Commissioner that the new records submitted by Ms. Williams are not material. Ms. Williams attempts to place the mental health provider's records within the appropriate time frame by pointing to the doctor's notation indicating that she lost weight in the three months prior to her first mental health appointment on February 8, 2016, and that she suffered a panic attack "two or three months ago," which, she argues, was prior to the ALJ's decision. Pl. Br. 17-18. This "relation back" evidence, along with the other records from a specific mental health treatment provider, would have changed the outcome, she argues, because the ALJ considered her mental health issues non-severe in part because she was being treated only by her primary care physician, and had received no mental health treatment. While the records are clearly "new" in that they are dated after the ALJ's decision in December 2015, they do not document with any specificity the events that Ms. Williams now claims occurred prior to the hearing.
Of course, had they occurred prior to the hearing, the Plaintiff certainly could have testified to these events before the ALJ. The ALJ left the record open for the retrieval of records pertaining to the treatment of Ms. Williams' gastrointestinal issues - had she planned to seek additional care from a mental health professional separate from her primary care physician, she could have advised the ALJ of that at the time of the hearing and asked that the record remain open. She did not do so.
With regard to her hospitalization in September 2016, these records at best show a "subsequent deterioration of the previously non-disabling condition," in that they appear to show a worsening of Ms. Williams' breathing problems. As such, the records are not material. Szubak, 745 F.2d at 833.
Ms. Williams argues in her reply brief that her case should be remanded to the ALJ for consideration of these new medical records because, unlike the claimant in Crandall v. Astrue, No. 10-cv-1431, 2011 WL 1632281, at *12 (E.D. Pa. Oct. 5, 2011), relied upon by the Commissioner, Ms. Williams "received mental health treatment in the same month as the referral" by the nurse practitioner at her primary physician's office, rather than waiting eleven months, as did the claimant in Crandall. Thus, she argues, her case is akin to Newhouse v. Heckler, 753 F.2d 283, 286-87 (3d Cir. 1985), where the case was "remanded for consideration of records of a hospitalization that occurred 26 days after the Appeals Council affirmed the ALJ's decision." Pl. Reply 11. In Newhouse, however, the hospitalization was both immediately after the Appeals Council decision, and provided the exact medical evidence not already in the record.
The Administrative Law Judge predicated his decision upon an absence of clinical data to support Newhouse's claim of continued disability. Had the record of Newhouse's June 1983 hospitalization been before the Secretary, there is a reasonable possibility that evidence of completely obstructed veins in the left thigh as well as evidence of a positive Homan's sign might well have supplied the very clinical data the Administrative Law Judge found wanting.Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985). Here, the mental health records, which began approximately three months after the hearing, did not provide such specific clinical data, instead only documenting Ms. Williams' report of prior weight loss and a panic attack sometime in the past two to three months. Conversely, the hospital records from September 2016, some nine months after the ALJ's decision, clearly show a worsening of her condition. Such records are not material. "The 2013 X-ray evidence showing the alleged 'subsequent deterioration' of Plaintiff's degenerative disc disease does not render the 'previously non-disabling condition' suddenly disabling. See Szubak, 745 F.2d at 833. The evidence is not material." Jones v. Colvin, No. 13-cv-2065, 2015 WL 920953, at *11 (E.D. Pa. Mar. 4, 2015). I recommend that this case not be remanded under 42 U.S.C. § 405(g), sentence six.
RECOMMENDATION
Based upon the discussion above, I respectfully recommend that Ms. Williams' request for review be denied, that the final decision of the Acting Commissioner be affirmed, and that the case be dismissed. Parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with the report and recommendation. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and explain the basis for the objections. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).
A party wishing to respond to objections shall file a response within 14 days of the date the objections are served.
BY THE COURT:
s/Richard A . Lloret
HON. RICHARD A. LLORET
U.S. Magistrate Judge