CIVIL ACTION NO. 3:18-CV-798
() REPORT AND RECOMMENDATION
This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (hereinafter, "the Commissioner") denying Plaintiff's claims for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be AFFIRMED. I. BACKGROUND AND PROCEDURAL HISTORY
On October 14, 2014, Plaintiff Paige Lynn Curry ("Curry" or "Claimant") filed applications for Title II and Title XVI benefits, respectively. (Doc. 5-3, at 14). In these applications, Curry claimed disability beginning January 2, 2013. (Doc. 5-3, at 14). The Social Security Administration initially denied Curry's claims on January 7, 2015. (Doc. 5-3, at 14). Curry filed a request for a hearing before an Administrative Law Judge ("ALJ") on January 21, 2015. (Doc. 5-3, at 14). The ALJ conducted the requested hearing on December 6, 2016. (Doc. 5-3, at 14).
In a written opinion dated April 10, 2017, the ALJ determined that Curry was not disabled and therefore not entitled to the benefits sought. (Doc. 5-3, at 21). Curry appealed the ALJ's decision to the Appeals Council, who, on February 13, 2018, denied Curry's request for review. (Doc. 5-3, at 2; 6). On April 12, 2018, Curry filed the instant action. (Doc. 1). The Commissioner responded and provided the requisite transcripts from the disability proceedings on June 8, 2018. (Doc. 3); (Doc. 4). The parties then filed their respective briefs (Doc. 9); (Doc. 12), with Curry alleging two errors warranted reversal or remand. (Doc. 9, at 4-5). II. THE ALJ'S DECISION
In a decision dated April 10, 2017, the ALJ determined Curry "has not been under a disability, as defined in the Social Security Act, from January 2, 2013, through the date of this decision." (Doc. 5-3, at 21). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. § 404.1520; 20 C.F.R. §416.920(a). The ALJ determined that Curry met the insured status requirements of the Social Security Act through September 30, 2019. (Doc. 5-3, at 16).
At step one, an ALJ must determine whether the claimant is engaging in substantial gainful activity ("SGA"). 20 C.F.R § 404.1520(a)(4)(i); 20 C.F.R. § 416.920(a)(4)(i). If a claimant is engaging in SGA, the Regulations deem them not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b). SGA is defined as work activity—requiring significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572; 20 C.F.R. § 416.972. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574; 20 C.F.R. § 416.974. The ALJ determined Curry "has not engaged in [SGA] since January 2, 2013, the alleged onset date." (Doc. 5-3, at 16). Thus, the ALJ's analysis proceeded to step two.
The ALJ noted "claimant worked after the alleged disability onset date but this work activity did not rise to the level of [SGA]" based on Curry's earnings. (Doc. 5-3, at 16).
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. § 416.920(a)(4)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have a severe impairment and [is], therefore, not disabled." 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c).
If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step. The ALJ found Curry had the severe impairment of status post bowel resection. (Doc. 5-3, at 16). The ALJ also identified Curry's non-severe impairment as depression. (Doc. 5-3, at 17).
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (20 C.F.R. §§ 404.1520(a)(4)(iii); 404.1525; 404.1526; 20 C.F.R. §§ 416.920(a)(4)(iii); 416.925; 416.926). If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 416.920(d). The ALJ determined that none of Curry's impairments, considered individually or in combination, met or equaled a Listing. (Doc. 5-3, at 17). Specifically, the ALJ considered Listing 1.00 (Musculoskeletal System - Adult).
Between steps three and four, the ALJ determines the claimant's residual functional capacity ("RFC"), crafted upon consideration of the medical evidence provided. The ALJ determined that Curry has the RFC to perform the full range of sedentary work as defined in 20 CFR 404.1567(a). (Doc. 5-3, at 17).
Having assessed a claimant's RFC, at step four the ALJ must determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 416.920(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 416.920(a)(4)(iv). Past relevant work is defined as work the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b); 20 C.F.R. § 416.960(b). If the claimant cannot perform past relevant work or has no past relevant work, then the analysis proceeds to the fifth step. 20 C.F.R. § 404.1565; 20 C.F.R. § 416.965.
The ALJ determined Curry was capable of performing past relevant work. (Doc. 5-3, at 20-21). The ALJ noted past relevant work as human resource assistant and dispatcher. (Doc. 5-3, at 20-21). Thus, the ALJ's analysis did not reach the fifth step. As a result of this analysis, the ALJ determined that Curry was not disabled and denied Curry's applications for benefits. (Doc. 5-3, at 21). III. STANDARD OF REVIEW
In order to receive benefits under Title II or Title XVI of the Social Security Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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 significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131.
A "physical or mental impairment" is defined as an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
In evaluating whether a claimant is disabled as defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her RFC; and (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f) ; 20 C.F.R. § 416.912(f).
In reviewing the Commissioner's final decision denying a claimant's application for benefits, the Court's review is limited to determining whether the findings of the final decisionmaker are supported by substantial evidence in the record. See 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference); 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) (internal quotations omitted). 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). In an adequately developed factual record, however, 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. Mar. 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 the Court, therefore, is not whether Curry is disabled, but whether the Commissioner's finding that Curry is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence."); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues decided by the Commissioner."). IV. DISCUSSION
Curry raises two issues on appeal, both of which challenge the ALJ's RFC determination. First, Curry asserts the ALJ erroneously found she had the RFC to perform sedentary work, as her medical treatment notes show that she consistently complained of pain and diarrhea to her medical providers. (Doc. 9, at 4-5). Second, Curry asserts the ALJ failed to properly evaluate her hearing testimony regarding pain and diarrhea. (Doc. 9, at 6-8). Further, although not raised as a separate contention of error, Curry challenges the ALJ's finding that a significant gap exists in her medical treatment. (Doc. 5-12); (Doc. 5-13); (Doc. 9, at 3; 5).
A. THE RFC IS SUPPORTED BY SUBSTANTIAL EVIDENCE BECAUSE THE ALJ CONSIDERED CURRY'S COMPLAINTS OF PAIN, AS DOCUMENTED IN THE MEDICAL TREATMENT NOTES, IN THE CONTEXT OF THE RECORD AS A WHOLE.
Curry submits that the RFC is not supported by substantial evidence because notes from her health care providers show she was dealing with abdominal pain and chronic diarrhea throughout 2014. (Doc. 9, at 3). Specifically, Curry points to her complaints of pain or diarrhea in medical treatment notes from five specific dates. (Doc. 9, at 3). Additionally, Curry states she has been prescribed several medications for these conditions and lists these various prescriptions in her brief. (Doc. 9, at 5). According to Curry, these complaints of pain and diarrhea to her medical providers, as well as her prescribed medications, indicate she did not retain a sedentary RFC. (Doc. 9, at 4).
A claimant's "[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. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir. 1999)). Assessing an individual's RFC falls within the purview of the ALJ. 20 C.F.R. § 404.1546(c); 20 C.F.R. § 416.946(c); SSR 96-8P, 1996 WL 374184 (S.S.A. July 2, 1996); see also Myers v. Berryhill, 373 F. Supp. 3d 528, 536 (M.D. Pa. 2019) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)) ("The ALJ - not treating or examining physicians or state agency consultants - must make the ultimate disability and RFC determinations."). When determining an individual's RFC, the ALJ must consider all evidence of record. 20 C.F.R. §§ 416.920; 416.945(a)(1); 416.946; see also SSR 96-8P, 1996 WL 374182 at *2 ("RFC is assessed by adjudicators at each level of the administrative review process based on all of the relevant evidence in the case record, including information about the individual's symptoms and any 'medical source statements'..."). The Court defers to the ALJ's RFC determination, and will only set aside the RFC determination if it is not supported by substantial evidence. See Black v. Berryhill, No. 3:16-CV-1768, 2018 WL 4189661, at *3 (M.D. Pa. Apr. 13, 2018) (citing Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002)) (report and recommendation adopted 2018 WL 4184303 (M.D. Pa. Aug. 31, 2018)).
SSRs are agency rulings published under the authority of the Commissioner and are binding on all components of the Social Security Administration. 20 C.F.R. § 402.35(b)(1). SSRs do not have the force and effect of the law or regulations but are to be "relied upon as precedents in determining other cases where the facts are basically the same." Heckler v. Edwards, 465 U.S. 870, 873, n. 3 (1984).
Further, the RFC determination need only include limitations that the ALJ deems to be credible. Lopez v. Comm'r of Soc. Sec., 270 F. App'x 119, 122-23 (3d Cir. 2008) (citing Burnett, 220 F.3d at 121). "Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence that he rejects and his reason(s) for discounting that evidence." Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing Burnett, 220 F.3d at 121). "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
At bottom, "[t]he ALJ must consider all relevant evidence when determining an individual's residual functional capacity in step four... includ[ing] medical records." Fargnoli, 247 F.3d at 42 (internal citations omitted). The ALJ must consider medical evidence in the context of the record as a whole and may not omit pieces of evidence from her consideration merely because that evidence is inconsistent with her conclusion. See Fargnoli, 247 F.3d at 42; Morales v. Apfel, 225 F. 3d 310, 317 (3d Cir. 2000) (citing Adorno v. Shalala, 40 F. 3d 43, 47 (3d Cir. 1994)). While the ALJ does not need "to make reference to every relevant treatment note in a case," the ALJ's opinion must still "consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law." Fargnoli, 247 F.3d at 42. Accordingly, "'a written evaluation of every piece of evidence is not required, as long as the ALJ articulates at some minimum level her analysis of a particular line of evidence.'" Weidman v. Colvin, 164 F. Supp. 3d 650, 659 (M.D. Pa. 2015) (quoting Phillips v. Barnhart, 91 F. App'x 775, 780 n. 7 (3d Cir. 2004)).
In support of her first contention of error, Curry asserts that the ALJ did not consider her complaints of pain or diarrhea as noted in treatment records from her April 8, 2014 visit with Katie Moser. (Doc. 9, at 3). In the opinion, the ALJ noted that in April 2014, Curry's "surgeon noted that claimant had tenderness to palpation left of midline [and that] [s]he was given a trial of Lidoderm patches." (Doc. 5-3, at 19). The general notes from the visit with Dr. Moser indicate Curry was "[w]ell-appearing and in no distress." (Doc. 5-8, at 44). Moreover, Dr. Moser's impression explicitly states "[e]xcellent progress" and the history of present illness indicates "[v]ery good progress." (Doc. 5-8, at 43-44). Regarding her pain, the treatment notes also observe that "[Curry] has what appears to be localized tenderness." (Doc. 5-8, at 44). Further, the ALJ noted that Curry was given a trial of Liboderm patches, which are a form of pain medication, during this visit. Based on the ALJ's explicit consideration of Curry's claims of pain, and the treatment she received from Dr. Moser, the Court is of the opinion that the ALJ's evaluation of these treatment notes reaches the level of articulation and consideration required under case law. See Fargnoli, 247 F.3d at 42; Weidman, 164 F. Supp. 3d at 659.
See Tracy-Caldwell v. Barnehart, Civil No. 07-0384, 2008 WL 820073, at *10 (D. N. J. Mar. 26, 2008) (identifying Liboderm patches as pain medication).
Curry also asserts that the ALJ did not consider her complaints of pain or diarrhea noted during her May 21, 2014 visit with Dr. Chow. (Doc. 9, at 3). The ALJ noted that in May 2014 Curry "followed up with her primary care doctor and reported abdominal pain about a four out of ten on a ten-point pain scale. On exam, she had moderate tenderness in the mid right abdomen. She was prescribed Oxycodone." (Doc. 5-3, at 19). Dr. Chow's May 21st treatment notes indicate Curry presented for an evaluation of abdominal pain. (Doc. 5-8, at 35-36). The subjective factors from the treatment notes provide a pain intensity of four out of ten, consistent since its onset four days prior to Curry's visit, and unchanged since the time of surgery. (Doc. 5-8, at 35). The objective assessment from the treatment also notes included "normal bowel sounds." (Doc. 5-8, at 36).
Here, the ALJ discussed Curry's reported four out of ten pain intensity. Further, the follow-up notes cited to by the ALJ merely advise Curry to return if the pain worsens or fails to improve, as opposed to giving her a directive for further treatment. (Doc. 5-8, at 36). Thus, the ALJ's evaluation of these treatment notes adequately considers Curry's complaint of pain by noting the magnitude of the pain she complained of and Dr. Chow's decision to prescribe her Oxycodone, the plan for addressing that pain. As such, the ALJ expressed a sufficient level of consideration for Curry's pain as expressed to Dr. Chow on May 21, 2014. See Fargnoli, 247 F.3d at 42; Weidman, 164 F. Supp. 3d at 659.
In further support of her contention of error, Curry asserts that the ALJ did not consider her complaints of pain or diarrhea noted in treatment records from her September 2, 2014 visit with an unspecified provider at an unspecified location. (Doc. 9, at 3). The ALJ's opinion discusses Curry's September 2, 2014 medical encounter as follows:
The medical treatment records indicate Curry met with Dr. Thein at Geisinger Health Center on September 2, 2014. (Doc. 5-8, at 25-26).
In September 2014, the claimant reported acute abdominal pain. She described a crampy, twisting feeling grading six of ten at times. She had some nausea and
a loose bowel movement one to three times a day. She was taking 20 mg of Oxycodone every 12 hours. On exam, she was tender in the upper left quadrant of the abdomen and milder tenderness at the lower left quadrant. She was prescribed Hyoscyamine sulfate for pain (1F/24).
(Doc. 5-3, at 19).
The ALJ noted Curry presented with pain, and the six-out-of-ten pain level Curry experienced. The ALJ also discussed Curry's diarrhea, where he noted Curry's loose bowel movements. Additionally, the ALJ noted Curry's current use of a pain medication, Oxycodone, and her prescribed future use of another pain medication, Hyoscyamine sulfate. As shown above, the ALJ considered Curry's level of pain, and corresponding use of medications, as well as her propensity for loose bowel movements. Given this, the Court is not persuaded that the ALJ failed to articulate analysis of Curry's complaints of pain and diarrhea made September 2, 2014. See Fargnoli, 247 F.3d at 42; Weidman, 164 F. Supp. 3d at 659.
Additionally, Curry asserts that the ALJ did not consider her complaints of pain or diarrhea noted in treatment records from her September 8, 2014, visit with an unspecified provider at Geisinger's Gastroenterology Department. (Doc. 9, at 3). However, the ALJ's opinion includes the following analysis of Curry's September 8, 2014 gastroenterology visit:
The medical treatment records indicate Curry met with Dr. Huseini at Geisinger Health Center on September 8, 2014. (Doc. 5-8, at 22-24).
The claimant also followed up with her gastroenterologist in September 2014. She reported recurrent Diarrhea for many years. On exam, she had normal findings (1F/20). She was went [sic] for a small bacterial overgrowth study, which was negative (1F/16). CT of the abdomen and pelvis indicated
postsurgical changes of gastric bypass, diverticulosis but no changes to indicate diverticulitis or acute disease (1F/9). An upper endoscopy was normal (1F/8).
(Doc. 5-3, at 19).
Regarding Curry's diarrhea, the ALJ noted that Curry complained it recurred for many years. Although the ALJ did not explicitly discuss Curry's presentment of chronic abdominal pain, the ALJ did discuss medical tests requested by Dr. Huseini. The medical tests recommended by Dr. Huseini included a bacterial overgrowth study, a CT of the abdomen, and an upper endoscopy. (Doc. 5-8, at 23-24). Thus, the ALJ's discussion contemplates Curry's complaints of pain and diarrhea and corresponding treatment plan for these ailments contained in the September 8, 2014 treatment notes. See Fargnoli, 247 F.3d at 42; Weidman, 164 F. Supp. 3d at 659.
Curry asserts that the ALJ did not consider her complaints of pain or diarrhea noted in treatment records from her October 10, 2014 visit with Dr. Gabrielsen. (Doc. 9, at 3). The October 10, 2014, treatment notes pertain to a follow-up visit with Dr. Chow. (Doc. 5-8, at 7). The medical notes from Curry's October 10, 2014 encounter with Dr. Chow do not reflect that she complained of pain. To the contrary, the physical exam from this date describes Curry as in "no distress and comfortable." (Doc. 5-8, at 8). Thus, to the extent Curry asserts the ALJ erred by not considering her allegations of pain during the October 10, 2014 medical visit, the Court is not persuaded.
However, treatment notes from October 7, 2014, pertain to a visit with Dr. Gabrielsen. (Doc. 5-8, at 8-9). The ALJ discussed these treatment notes as follows:
In October 2014, the claimant went back to her surgeon. She reported left upper quadrant abdominal pain constantly but controlled with Oxycodone. She took the pain medication every day and indicated that lying in a fetal position was
the only thing that felt better. She appeared in good spirits and happy and said she had learned to live with the pain (1F/7).
(Doc. 5-3, at 19).
The ALJ noted Curry controlled her pain with Oxycodone. Further, the ALJ discussed Curry's additional pain management technique, lying in the fetal position, and her overall positive outlook. Thus, the ALJ clearly considered Curry's complaints of pain and her pain management strategies, as memorialized in the October 7, 2014 treatment notes, in the RFC evaluation. See Fargnoli, 247 F.3d at 42; Weidman, 164 F. Supp. 3d at 659.
In sum, the ALJ's opinion mentions the treatment notes from the dates that Curry cites to in her brief. As distilled in the opinion, the ALJ's consideration of Curry's medical treatment on those days consisted of her presentation of symptoms and the plan for treatment going forward. Moreover, the ALJ considered this evidence in the context of the record as a whole. See Fargnoli, 247 F.3d at 42; Morales v. Apfel, 225 F. 3d 310, 317 (3d Cir. 2000) (citing Adorno v. Shalala, 40 F. 3d 43, 47 (3d Cir. 1994)). The ALJ's consideration of pain and diarrhea symptoms as reflected in the medical visitation notes for the relevant dates is adequate, given the overall tone of the notes from those days and their fit within the entire record of evidence. See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotations omitted). As such, the Court is not persuaded the ALJ erred by failing to consider Curry's complaints of pain and diarrhea as made to her medical providers.
Relying on Dujak v. Heckler, 190 F.2d 26 (3d Cir. 1986) and Social Security Ruling 83-1A, Curry first contends that no evidence of record supports the ALJ's RFC determination that she retained the ability to perform a full range of sedentary work. (Doc. 9, at 4). Curry does not articulate how SSR 83-1A—which pertains to "Wife's Insurance Benefits—Family Relationships—Status of a 'Deemed' Divorced Wife"—applies to the instant appeal. SSR 83-1A, 1983 WL 31231 (Jan. 1, 1983). Further, to the extent that Curry's reliance on Dujak is a mistaken citation to the Third Circuit's decision in Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986), the Court is not persuaded that the ALJ committed error on this ground. Like any other factual determination by the ALJ, the RFC must be supported by substantial evidence. See Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 147-78 (3d Cir. 2007) (internal citations omitted); Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000). The Doak Court determined that the ALJ's RFC finding was not supported by substantial evidence when the record, including the opinions of three medical experts, did "not support a finding that claimant could do light work as defined in the regulations." Doak, 790 F.2d at 29. Thus, Doak is often cited to for the proposition that "rarely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant." See Maellaro v. Colvin, No. 3:12-CV-01560, 2014 WL 2770717, at *11 (M.D. Pa. June 18, 2014); citing Doak, 790 F.2d at 29 ("No physician suggested that the activity [the claimant] could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence."); see also Cummings v. Colvin, 129 F. Supp. 3d 209, 215 (W.D. Pa. 2015) ("[I]n Doak, '[t]he Third Circuit did nothing more than make a substantial evidence finding in light of a limited record ... and subsequent Third Circuit case law confirms this understanding.'" (quoting Doty v. Colvin, No. CIV.A. 13-80-J, 2014 WL 29036, at *1 n. 1 (W.D. Pa. Jan. 2, 2014))).
Here, the RFC limited Curry to sedentary work. (Doc. 53, at 17). The Regulations define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
B. THE ALJ DID NOT ERR IN HER EVALUATION OF CURRY'S TESTIMONY.
1. The ALJ considered Curry's subjective testimony regarding her complaints in accordance with the applicable regulations.
Curry also avers that the ALJ erred in her RFC determination because she failed to properly evaluate Curry's testimony about her subjective complaints and limitations. (Doc. 9, at 5). Specifically, according to Curry, the ALJ should have given additional weight to her complaints of pain and diarrhea made during the hearing. (Doc. 9, at 6). The Commissioner responds that the "ALJ is not required to accept a claimant's statements uncritically." (Doc. 12, at 28). The Commissioner argues that the ALJ considered Curry's pre-hearing statements and her testimony and explained why they were not consistent with objective evidence in the record. (Doc. 12, at 29).
Curry also submits that the ALJ improperly discounted her subjective complaints because they were inconsistent with the ALJ's RFC determination, and thus the ALJ employed circular logic. (Doc. 9, at 6-7). "The regulations describe a two- step process for evaluating symptoms." Flora v. Berryhill, No. 1:16-CV-00252, 2017 WL 2791054, at *8 (M.D. Pa. May 1, 2017) (report and recommendation adopted 2017 WL 2778559 (M.D. Pa. June 27, 2017)). First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, then the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b).
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions due to the symptom alleged can be reasonably be accepted as consistent with objective medical evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4); see also Malloy v. Comm'r of Soc. Sec., 306 F. App'x 761, 765 (3d Cir. 2009) (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)) ("Credibility determinations as to a claimant's testimony, regarding pain and other subjective complaints are for the ALJ to make."). However, an ALJ will not reject symptoms about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3).
At the time of the ALJ's decision in Malloy, SSR 96-7p governed the ALJ's consideration of claimant's testimony regarding her subjective symptoms, including pain. SSR 96-7p, has since been superseded by SSR 16-3p. SSR 16-3p eliminates the term "credibility" from the Social Security Administration's policy guidance in order to "clarify that subjective symptom evaluation is not an examination of the individual's character." SSR 16-3p, 2016 WL 1119029 at *1. A comparison of these rulings reveals that there are few substantive changes. Both rulings outline a two-step process to evaluate a claimant's subjective statements and identify the same factors to be considered in the ALJ's assessment of the intensity, persistence, and limiting effects of a claimant's symptoms. Therefore, Malloy's statement regarding the ALJ's role in determining the weight to afford to claimant's testimony as to her subjective complaints remains good law.
Here, the ALJ stated she "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other medical evidence, based on the requirements of 20 CFR 404.1529 and SSR 96-4p." (Doc. 5-3, at 17). Moreover, the ALJ found that claimant's "medically determinable impairment could reasonably be expected to cause the alleged symptoms." (Doc. 5-3, at 18). However, the ALJ stated she did not accept Curry's statements concerning the "intensity, persistence, and limiting effects [of her symptoms] to the extent and for the reasons explained in this decision." (Doc. 5-3, at 18). Curry argues the ALJ improperly evaluated her alleged symptoms of "constant pain and diarrhea." (Doc. 9, at 5).
The ALJ first noted that "[t]he record indicates the claimant had conservative treatment for her condition during the period at issue." (Doc. 5-3, at 18). Conservative treatment received by a claimant is a permissible reason to find claimant's impairments were not as disabling as she claimed. See Garret v. Comm'r of Soc. Sec., 274 F. App'x 159, 164 (3d Cir. 2008). The ALJ noted Curry made "no emergency room visits for acute pain" and that an overall lack of medical treatment "does tend to suggest that [Curry's] symptoms may not have been as severe or as frequent as has been alleged...." (Doc.5-3, at 20). A claimant's "choice of pain medication [and] lack of frequent inpatient admissions, emergency room visits, or protracted physical therapy" are permissible reasons to find claimant's impairments are not as disabling as she claims. See Knox v. Comm'r of Soc. Sec., 365 F. App'x 363, 368 (3d Cir. 2010).
Further, the ALJ noted Curry "had not seen pain management for more than a year as of the hearing," and that her medication "regime has been consistent throughout the relevant period." (Doc. 5-3, at 20). The ALJ may appropriately consider Curry's choice of pain medication in discounting her complaints of pain. See Knox, 365 F. App'x at 368. Supplementing his reasoning, the ALJ indicated claimant's daily activities were "not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." (Doc. 5-3, at 20). Specifically, the ALJ noted Curry prepared meals, did not have a problem with personal care, could go out alone, shop for groceries and other household items, manage a bank account, read, watch television, and babysit her grandchildren with help from her husband, among other activities. (Doc. 5-3, at 20). An ability to perform activities of daily living without assistance provides a basis for the ALJ to discount complaints of pain. See Schmidt v. Comm'r Soc. Sec., 465 F. App'x 193, 198 (3d Cir. 2012).
The ALJ appropriately followed the two-step process provided for in the regulations regarding claimant's complaints of pain. First, the ALJ determined that claimant's medical impairments could be reasonably expected to produce the pain of which she complained. However, the ALJ considered the objective medical evidence and found it did not support the intensity, persistence, or limiting effects that Curry alleged her pain symptoms caused. The ALJ based her decision on Curry's treatment history, lack of emergency room visits, choice of pain medications, and activities of daily living. All of these are permissible bases for the ALJ to make his determination regarding the intensity, persistence, or limiting effects of the pain Curry testified to. See Schmidt, 465 F. App'x at 198; See Knox, 365 F. App'x at 368; Garret, 274 F. App'x at 164. Thus, the Court finds Curry's argument that the ALJ failed to consider her symptoms of pain to be without merit, and the the ALJ's RFC determination to be supported by substantial evidence. See 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).
2. Curry's discussion of material not presented to the ALJ does not warrant a sentence six remand.
Although not explicitly argued as a source of error, Curry notes that the ALJ's statement regarding "a significant gap in treatment between October 2014 and April 2016... is belied by Exhibit 3F." (Doc. 9, at 3-4). Exhibit 3F contains Curry's treatment notes from Geisinger, dated from January 7, 2015 to December 15, 2016. (Doc. 5-12); (Doc. 5-13). Curry asserts that the medical records in Exhibit 3F document her chronic pain and diarrhea, and, if considered, would cast doubt upon the ALJ's RFC determination. (Doc. 9, at 3). However, the Commissioner argues this evidence was not before the ALJ, as it was presented for the first time to the Appeals Council, and therefore should not be part of the Court's substantial evidence review. (Doc. 12, at 18).
"[E]vidence that was not before the ALJ cannot be used to argue that the ALJ's decision was not supported by substantial evidence." Matthews v. Apfel, 239 F. 3d 589, 594 (3d Cir. 2001) (citing Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991)). "'[W]hen [a] claimant seeks to rely on evidence that was not before the ALJ, the district court may remand to the Commissioner but only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ.'" Fricker v. Halter, 45 F. App'x 85, 87 (3d Cir. 2002) (quoting Matthews, 239 F.3d at 593); see also Ficca v. Astrue, 901 F. Supp. 2d 533, 544 (M.D. Pa. 2012) (quoting 42 U.S.C. § 405(g)) (stating that in order for the federal court to remand based on sentence six, "the evidence must be 'new' and 'material' and a claimant must show 'good cause' for not having incorporated the evidence into the administrative record'") (emphasis added). If the sentence six requirements did not exist, the "'claimant might be tempted to withhold medical reports, or refrain from introducing all relevant evidence, with the idea of obtaining another bite of the apple if the Secretary decides that the claimant is not disabled.'" Matthews, 239 F.3d at 595 (quoting Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 834 (3d Cir. 1984)).
A sentence six remand refers to a remand made based on evidence not considered by the ALJ because the remand is made "pursuant to the sixth sentence of 42 U.S.C. § 405(g)." Black v. Berryhill, No. 3:16-CV-1768, 2018 WL 4189661, at *12 (M.D. Pa. Apr. 13, 2018) (report and recommendation adopted 2018 WL 4184303 (M.D. Pa. Aug. 31, 2018)).
Based upon the record before this Court, the Geisinger medical notes which Curry urges the Court to consider, identified by her as Exhibit 3F, was not available to the ALJ at the hearing. (Doc. 5-3, at 24). In her brief in support of this appeal, Curry also produces a list of sixteen medications which she was taking. (Doc. 9, at 5). Although Curry does not provide a citation to the record for this list, a list of sixteen medications appears in Exhibit 3F, the Geisinger medical notes ranging from January 7, 2015 to December 15, 2016. (Doc. 5-12, at 2). Specifically, the sixteen medications listed in Curry's brief corresponds to her outpatient Geisinger medications as of December 15, 2016. (Doc. 5-12, at 2).
Curry also supplied this list of sixteen prescribed medications to the Appeals Council in a letter dated June 7, 2017. (Doc. 5-5, at 24 ¶ F). --------
However, Curry does not put make an argument regarding the appropriateness of a sentence six remand in this case. (Doc. 12, at 20). Curry's failure to argue that remand is warranted provides reason to deny her undeveloped request. See Snyder v. Comm'r of Soc. Sec., No. 4:15-CV-2064, 2018 WL 3849865, at *9 (M.D. Pa. July 18, 2018) (finding claimant did not attempt to show evidence not presented to ALJ was material or relevant, and therefore failed to state a basis for remand) (report and recommendation adopted 2018 WL 3840824 (M.D. Pa. Aug. 13, 2018)). As such, the Court does not find that remand is warranted on this ground. See Matthews, 239 F. 3d at 595; Black, 2018 WL 4189661, at *12. V. REMEDY AND RECOMMENDATION
The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the case for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991). Here, the Court concludes that the RFC is supported by substantial evidence. Additionally, to the extent Curry seeks a remand based on evidence not before the ALJ, she has not shown good cause for her failure to present that evidence in the first instance. The undersigned United States Magistrate Judge respectfully recommends that the decision of the Commissioner be AFFIRMED. It is further recommended that final judgment be issued in favor of the Commissioner and against Curry, and that the Clerk of Court be directed to CLOSE this case. Dated: August 21, 2019
United States Magistrate Judge PAIGE LYNN CURRY, Plaintiff v. NANCY A BERRYHILL, Defendant NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 21, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.Dated: August 21, 2019
United States Magistrate Judge
20 C.F.R. § 404.1567(a)
Curry does not point to any medical opinion in the record which concludes that she is precluded from performing sedentary work. Notably, the ALJ considered one medical opinion - rendered by John Chiampi, Ph. D ("Dr. Chiampi") - and gave it great weight. (Doc. 5-3, at 20). Dr. Chiampi's report concluded that Curry can occasionally lift or carry up to fifty pounds, and frequently lift or carry up to twenty-five pounds. (Doc. 5-4, at 6). Dr. Chiampi also opined that Curry can stand or walk for about six hours in an eight-hour work day and sit for about six hours in an eight-hour work day. (Doc. 5-4, at 6). These findings comport with the restrictions of performing work at the sedentary exertional level. See 20 C.F.R. § 404.1567(a). As such, unlike in Doak, the available medical opinion evidence supports the ALJ's ultimate RFC finding. Cf. Doak, 790 F.2d at 29.
Therefore, the Court finds that the ALJ's RFC determination does not run afoul of Doak and is consistent with the medical opinion evidence, as well as the record evidence as a whole. See Goodman v. Berryhill, 2018 WL 4102860, at *9 (M.D. Pa. June 7, 2018); McCurdy v. Colvin, 2016 WL 4077268, at *10 n.3 (M.D. Pa. Aug. 1, 2016).