Sylvia H. Rambo, United States District Judge.
Before the court is a report and recommendation (Doc. 21) filed by the magistrate judge in which he recommends that the appeal by Plaintiff, Jackie Durden, from a decision of the administrate law
A review of the thorough and lengthy opinion of the magistrate judge shows that the ALJ's decision is supported by substantial evidence. The report and recommendation will be adopted.
A separate order will issue.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL REPORT AND RECOMMENDATION
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE.
I. Procedural Background
On April 16, 2012, Jackie Durden ("Plaintiff") filed as a claimant for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, 1181-1183f, with a date last insured of December 31, 2012,
After the claim was denied at the initial level of administrative review, the Administrative Law Judge (ALJ) held a hearing on August 5, 2013. (Tr. 52-96). On August 8, 2013, the ALJ found that Plaintiff was not disabled within the meaning of the Act. (Tr. 32-49). On August 30, 2013, Plaintiff sought review of the unfavorable decision, which the Appeals Council denied on November 18, 2014, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 13-18).
On January 19, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. (Doc. 1). On March 27, 2015, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. (Doc. 12, 13). On June 9, 2015, Plaintiff filed a brief in support of the appeal. (Doc. 16 ("Pl.Brief")). On June 29, 2015, the Court referred this case to the undersigned Magistrate Judge. On July 7, 2015, Defendant filed a brief in response. (Doc. 17 ("Def.Brief")). On October 12, 2015, Plaintiff filed a reply brief. (Tr. 20 ("Reply")).
II. Relevant Facts in the Record
A. Education, Age, and Vocational History
The relevant period begins on August 26, 2011, Plaintiff's alleged onset date, and ends on December 31, 2012, Plaintiff's date last insured. Supra note 1. Plaintiff was born in May 1961, and thus was classified by the regulations as a person closely approaching advanced age as of the last insured date of December 31, 2012. 20 C.F.R. § 404.1563(d); (Tr. 47). Plaintiff graduated high school in 1979 (Tr. 62, 214) and obtained employment with the Pennsylvania Department of Transportation ("DOT"). (Tr. 62, 202, 214). Plaintiff entered the military in January of 1980 and was discharged in August of 1980. (Tr. 64, 329). She reported being discharged after a sexual assault and pelvic pain. (Tr. 64, 329).
Medical records dated April 21, 2009, and June 19, 2010 note that Plaintiff reported working part time at a local newspaper. (Tr. 682, 781). She stopped working at the newspaper in August of 2010.
B. Relevant Treatment History and Medical Opinions
1. Lebanon VA Medical Center: Andrea N. Raker, Social Worker; Dwight L. Klopp, L.C.S.W.; Ronald S. Johnson, Ph.D.; Robert G. Stephens IV, Ph.D.; Victoria M. Acker, P.A.-C.; Paul Tiger, M.D.; Elizabeth A. Miller. P.A.-C; Shubha R. Acharya, M.D.; Katherine Mulligan, M.D.
In August of 2011, Plaintiff underwent examinations to determine her eligibility for Veterans' (VA) benefits (compensation and pension (C & P)) for pelvic pain, muscle spasms, frequent urination, PTSD, and depression. (Tr. 331-49). Plaintiff reported that she left military service after being medically discharged due to chronic pelvic pain. (Tr. 347). Ms. Miller noted a medical record from 1980 where Plaintiff reported constant suprapubic pain, and was admitted to the hospital on September 2, 1980. (Tr. 347). Examination and diagnostic surgery during that hospitalization indicated normal pelvis and appendix. (Tr. 347). Upon physical examination Ms. Miller did not note anything abnormal. (Tr. 348). Plaintiff reported she was experiencing multiple subjective symptoms of PTSD "quite a bit" or to an extreme degree. (Tr. 336). For the Beck Depression Inventory-II, Plaintiff's raw score was 42, which Dr. Stephen stated was consisted with severe depression. (Tr. 337).
Plaintiff treated with Dr. Johnson, Ms. Acker, and Dr. Tiger from October 9, 2011, through her date last insured in December
(Tr. 305, 310-13, 318, 330, 469, 479-80). At every visit with Ms. Acker, she observed that Plaintiff:
(Tr. 299, 319, 466, 476). Ms. Acker" observed mild to moderate psychomotor agitation and depressed and anxious mood during some visits. (Tr. 299, 319, 476). Dr. Johnson observed depressed mood during some visits. (Tr. 305, 310-12, 465-64, 469, 474-75, 479-80).
In March of 2012, Plaintiff's ex-boyfriend/child's father died after being diagnosed with a brain tumor in January of 2012. (Tr. 288-91, 303-10). Plaintiff reported increased symptoms, including suicide ideation, through May of 2012, and requested additional anti-anxiety medication and emergency therapy. (Tr. 288-91, 303-10). Plaintiff reported that she was overwhelmed and that there is no one to help with the child-rearing anymore. (Tr. 306). She agreed to an increased medication dosage. (Tr. 306-09). Neither Ms. Acker nor Dr. Johnson noted significant differences on mental status examination. (Tr. 305, 307).
On October 24, 2012, Plaintiff stated "I'm actually feeling better and I usually take the clonazepam just once per day." (Tr. 465). Ms. Acker noted that Plaintiff was tolerating the venlafaxine increase without upset stomach and reported that it helped her mood because she felt less depressed, anxious and overwhelmed. (Tr. 466). Plaintiff stated that she was going to the gym routinely and trying to engage more with her child. (Tr. 466). Plaintiff reported that she was only taking clonazepam once on most days as didn't need a second dose, to which Ms. Acker told her it was fine not to take a second dose. (Tr. 466).
2. Lebanon VA Medical Center Opinion Evidence
On August 26, 2011, Dr. Stephens completed an examining source
Throughout the relevant period, Dr. Johnson assigned Plaintiff GAF scores that ranged from 45 to 48. (Tr. 305, 311-13, 318, 331, 449, 460-63, 469, 479). Ms. Acker assigned her GAF scores that ranged from 40 to 50 (Tr. 299, 319, 466).
On February 27, 2012, Dr. Johnson wrote a letter indicating that he had treated Plaintiff since October 21, 2011; she was diagnosed with PTSD, and had a GAF score of 47. (Tr. 312, 679). Dr. Johnson opined that Plaintiff's "symptoms are in the severe range making is very difficult, if not impossible to maintain employment at this time." (Tr. 312, 679).
On December 31, 2012, Dr. Stephens completed a PTSD disability benefits questionnaire which was not based on examination of Plaintiff, rather based on review of his last assessment and subsequent treatment notes. (Tr. 449-58). Dr. Stephens reviewed his August 2011 assessment and treatment notes since then and opined that the August 2011 assessment still reflects that Plaintiff's symptoms "remained in severe range" and Dr. Stephens checked the same boxes indicating Plaintiff's level of function as was indicated in the August 2011 assessment. (Tr. 452-57). Dr. Stephen concluded:
3. Consultative Agency Opinion of Roger Fretz, Ph.D.
On June 11, 2012, Dr. Fretz reviewed Plaintiff's medical records through June of 2012 from the Lebanon VA Medical Center and from the Lebanon Free Clinic, along with Plaintiff's function report, and work history. (Tr. 98). He noted that Plaintiff was diagnosed with Major Depressive Disorder and PTSD and had been in outpatient psychological treatment since October 2011. (Tr. 100). Dr. Fretz observed that the "treatment notes manifest no evidence of a thought disorder, no evidence of severe dysfunction in any area," "[s]he is capable of self-care/hygiene," "[s]he is able to perform ADLs, able to drive, [and] shop." (Tr. 100). Dr. Fretz noted that although Plaintiff "describes some isolative behavior," she is able "to engage in social settings, [has] no legal difficulties, [and] no [substance abuse] issues." (Tr. 100). Dr. Fretz also observed that although Plaintiff described some difficulty with concentration, there is no evidence "supporting significant compromise in this area." (Tr. 100). Dr. Fretz opined that Plaintiff had no problems with adaptation or memory. (Tr. 100).
4. Good Samaritan Hospital
Plaintiff treated at Good Samaritan Hospital on April 21, 2009; June 19, 2010; January 31; 2011; March 26, 2011; and March 1, 2012 for various impairments. (Tr. 682, 739-40, 755, 764-66, 781). Treatment records indicated normal gait, mood, speech, and thought process. (Tr. 739-40, 766). In January of 2011, prior to the onset date, Plaintiff reported intermittent mild headaches and vertigo that had been relieved with medication a year ago. (Tr. 764-65).
5. Lebanon Free Clinic: Barton C. Hughes, M.D.; Sergei L. Joffy, M.D.; B. Bollinga, R.N.
Prior to the relevant period, between December 2010 and March 2011, Plaintiff presented for treatment for high blood pressure, asthma, having to use the bathroom "all of the time," vertigo, and a continuous high pitch sound in her ears. (Tr. 352-55). On March 18, 2011, Plaintiff reported feeling much better. (Tr. 355). Through August of 2011, Plaintiff reported "feeling well" except for occasional sinus, sore throat, fever, and pharyngitis. (Tr. 355-57).
During the relevant period, Plaintiff reported experiencing vertigo two weeks earlier in September of 2011, indicated on May 8, 2012 that her vertigo occurred vertigo periodically, usually once per week, and reported an increase in vertigo later in May of 2012. (Tr. 358-62). She also reported a flare of irritable bowel syndrome due to her child's father's death. Id. Plaintiff had reported nocturnal urinary frequency in October of 2011, February of 2012, March of 2012, and April of 2012. Id. Records note her hypertension was controlled. Id. Plaintiff reported increased stress in March of 2012 and was tearful in April of 2012 due to the death of her child's father. (Tr. 361-62). Plaintiff sought treatment for cold symptoms in March and April of 2012, which had resolved by May 8, 2012. (Tr. 361-62). Plaintiff reported not having any shortness of breath, chest pain, nausea, or vomiting and has not had any recent angioedema flare-ups. (Tr. 362). Plaintiff reported rarely needing medication to treat her asthma. (Tr. 362). Plaintiff treated for left arm symptoms, leg symptoms, a headache, molar pressure, and acid reflux in August of 2012. (Tr. 409). Plaintiff treated for rectal bleeding in October of 2012 and reported increased stress in November of 2012. (Tr. 406-08).
6. GS Digestive Health Specialists: Robert R. Schade, M.D.
Plaintiff treated from October to December of 2012. (Tr. 426-28). She reported blood in her stool, but little or no pain, and was diagnosed with hemorrhoids. Id. She declined additional treatment due to the cost. Id. In December of 2012, Dr. Schade noted that Plaintiff currently had no symptoms. Id. Plaintiff denied hearing changes or pain in her ears, denied current abdominal pain, bleeding, heartburn, nausea, vomiting, dizziness, headaches, chest pain, lightheadedness, palpitations, arthralgia, stiffness, and swelling. Id. Dr. Schade noted normal gait, extremities, sensory and motor function, and strength. Id.
7. Medical Treatment after Date of Last Insured
With regard to evidence reflecting treatment after the expiration of Plaintiff's last date of insured, the records reflect continued stabilization and improvement in her mental and physical symptoms.
Plaintiff reported varying levels of subjective symptoms. (Tr. 444-46, 498, 511-12, 557-58, 566, 590) Dr. Johnson's examinations remained essentially unchanged. (Tr. 444, 511-12, 564-65, 639). Ms. Acker's mental status examination remained essentially unchanged. Compare (Tr. 446, 499, 558, 566) with (Tr. 299, 466, 476). She reported PE therapy increased her symptoms. (Tr. 445). Plaintiff reported that she was tolerating the venlafaxine and felt that it helped with her depression, anxiety, and feeling overwhelmed. (Tr. 445). Plaintiff reported that the medication works well but made her drowsy. (Tr. 566). Plaintiff reported that she was approved at 70% service connection disability for PTSD and this has lifted much of the financial burden for her and she is very happy to be able to provide for her child.
On April 3, 2013, Plaintiff reported a recent GI illness and vertigo. (Tr. 566). She was subsequently diagnosed with colitis, but on June 30, 2013, Plaintiff denied experiencing any abdominal pain, nausea, diarrhea, or vomiting. (Tr. 623, 640). On July 12, 2013, the symptoms of Plaintiffs colitis appeared to be in abeyance. (Tr. 613). On May 15, 2013, Plaintiff underwent a physical C & P examination by Dr. Mulligan. (Tr. 513-557). Dr. Mulligan opined that Plaintiff's respiratory condition did not impact her ability to work (Tr. 529) and that Plaintiff's urinary incontinence did not impact her ability to work (Tr. 539).
C. Function Report and Testimony
In a function report dated May 17, 2012, Plaintiff reported that she suffered from "extreme depression" and vertigo. (Tr. 232). Plaintiff states that the medication rendered her "immobile" as she was completing the function report. (Tr. 232, 240, 242). Plaintiff reported that her COPD makes her tire quickly and that she needs an epi-pen for angioedema which can knock her off of her feet for weeks at time. (Tr. 232-33). Plaintiff reported that when she was working, her impairments "severely hindered [her] attendance" and her ability to perform a regular work day. (Tr. 233). Plaintiff reported that she is no longer able to "live life, workout, long walks, luncheons," and spend time with family without being "knocked by vertigo." (Tr. 234). Plaintiff reported that she no longer has an appetite and when she experiences vertigo, it "put's [her] down" for weeks at a time. (Tr. 234). Plaintiff reported that anxiety and nocturia interferes with her ability to sleep through the night. (Tr. 234). Plaintiff reported that now she wears only sweatpants and shirts and only wears her hair in a ponytail. (Tr. 234). Plaintiff reported that she needs reminders to refill her medication and sometimes forgets if she had taken her medication. (Tr. 235).
Plaintiff reported performing some household chores, but it takes her a month to get to cleaning and doing laundry. (Tr. 235). Plaintiff reported that when she is not sleeping, she watches television. (Tr. 237). Plaintiff stated that she did not have the energy to do outside work and that such exertion triggers COPD symptoms. (Tr. 235-36). Plaintiff reported that she only goes outside to take her child to and from school and due to her depression and anxiety it is difficult to deal with life and people. (Tr. 236). Plaintiff reported that she can drive but does not own a car and uses public transportation. (Tr. 236). Plaintiff reported that she does not do any shopping. (Tr. 236). Plaintiff reported that her COPD, vertigo, depression and anxiety limits her ability to: lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, follow instructions, get along with others, and to remember. (Tr. 238, 241). Plaintiff stated that she could only walk five minutes before she would need to stop and rest until she has counted to thirty. (Tr. 238). Plaintiff reported that she could only pay attention for less than five minutes, could not follow written or spoken instructions well. (Tr. 238).
On August 5, 2013, Plaintiff testified at a hearing before the ALJ. (Tr. 52-96). Plaintiff testified that she received unemployment benefits until May of 2012 and that in order to receive unemployment benefits; she contacted the agency every two weeks. (Tr. 58-59). Plaintiff affirmed
(Tr. 60). Plaintiff reiterated the limitations she claimed in the function report with depression, socializing, concentrating, suicidal ideation, medication that "knocks" her out, and anxiety. (Tr. 72, 79-80, 82-84). Plaintiff testified that since her onset date that she has frequently thought of hurting herself. (Tr. 82). Plaintiff testified that there are some times where she goes without bathing for up to three days. (Tr. 82). Plaintiff estimated that her symptoms would cause her to miss work two days every two weeks. (Tr. 81).
The ALJ identified the normal observations by Dr. Johnson. (Tr. 73). Plaintiff disagreed with these observations, detailing "I tell him how I'm feeling.... how I feel like I'm neglecting my child because I can't get up out of the bed. Why he did not record that is beyond me." (Tr. 73-74). Plaintiff also testified that although she told Ms. Acker that her combination of medication was working, she continues to struggle with the symptoms and struggles to get things done in any given day. (Tr. 85). Plaintiff testified that she experiences immobilizing pain and spasms due to colitis. (Tr. 75-76). Plaintiff testified that she recently started medication without improvement. (Tr. 74). Plaintiff testified that she recently began medication to address her frequent urination, which interferes with her sleep and she has to wake up, on average every hour. (Tr. 77, 84). When the ALJ discussed recent normal tests regarding Plaintiff's lung-related symptoms, Plaintiff reiterated her subjective breathing complaints. (Tr. 77-78).
A VE appeared and testified. (Tr. 90-94). The VE opined Plaintiff could perform past relevant work and identified additional jobs that Plaintiff could perform that were unskilled. (Tr. 90-94).
III. Legal Standards and Review of ALI Decision
To receive disability or supplemental security benefits, 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); accord 42 U.S.C. § 1382c(a)(3)(A). A claimant for disability benefits must show that he or she has a physical or mental impairment of such a severity that:
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. 20 C.F.R. § 404.1520; accord Plummer, 186 F.3d at 428. If the Commissioner finds that a
The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. See Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.1993). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id. The ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
When reviewing the Commissioner's decision denying a claim for disability benefits, the Court must uphold the findings of the Commissioner so long as those findings are supported by substantial evidence. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir.2008). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir.2004). 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, 564, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Substantial evidence requires only `more than a mere scintilla' of evidence, Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995)), and may be less than a preponderance. Jones, 364 F.3d at 503. If a reasonable mind might accept the relevant evidence as adequate to support a conclusion reached by the Commissioner, then the Commissioner's determination is supported by substantial evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999); Johnson, 529 F.3d at 200.
The ALJ found that Plaintiff was less than fully credible because: 1) the medical evidence showed that Plaintiff's mental impairments were controlled, except for an exacerbation in 2012 that did not meet the twelve-month duration requirement; 2) contradictions between her alleged activities' of daily living and reported activities in medical records; 3) conservative treatment; 4) uncontradicted opinion indicating that her urinary and respiratory impairments did not affect her ability to work; 5) Plaintiff's receipt of unemployment; 6) Plaintiff's retirement for non-disability related reasons; 7) Plaintiff's report that her colitis was in abeyance; and 8) observations that Plaintiff's attention, concentration, and memory were intact. (Tr. 42-44).
Where a medically determinable physical or mental impairment that could reasonably be expected to produce the individual's
Plaintiff argues that the ALJ erred in making adverse credibility determinations based on Plaintiff being the sole caretaker of an eight-year-old child, Plaintiff's activities of daily living ("ADLs"), and Plaintiff's sporadic social events, such as Thanksgiving, a reunion, and going to Disneyworld. Pl. Brief at 13. Plaintiff further argues that the ALJ erred in drawing an adverse inference from Plaintiff's receipt of unemployment benefits during the same period of time that she alleged to be disabled. Pl. Brief at 13-14. Plaintiff does not address: 1) the medical evidence; 2) contradictions between her reports to medical providers and reports in support of her claim for benefits; 3) conservative treatment, or; 4) retirement for non-disability reasons.
The ALJ noted that Plaintiff "explained that she was able to function at [her] job and quit that job because she trusted that the father of her [child] would take care of her." (Tr. 42). It was permissible for the ALJ to consider Plaintiff's work history, non-health related reasons for stopping work, and motivation to work as factors in determining Plaintiff's credibility. See e.g., Hogan v. Apfel, 239 F.3d 958 (8th Cir.2001) (The closeness in time of plaintiff's on-the-job reprimand to her ceasing work cast doubt on her assertion that she quit her job because of pain and side effects of her pain medication); Kane v. Colvin, No. 3:13-CV-02469, 2015 WL 1513960, at *12 (M.D.Pa. Mar. 31, 2015) (noting that the plaintiff reported she was laid off because there was "not enough work for her," not because she was unable to work due to disability); Pachilis v. Barnhart, 268 F.Supp.2d 473, 483 (E.D.Pa. 2003) (finding that a claimant incentive or disincentive to work is a permissible criterion bearing on his credibility).
The ALJ also relied on a lack of objective medical evidence to support Plaintiff's claim of disability. (Tr. 43). The ALJ summarized medical evidence that indicated Plaintiff experienced a temporary exacerbation of her symptoms due to the illness and death of her child's father that did not meet the duration requirement. (Tr. 43). This is a proper factor to be considered in the credibility assessment. See SSR 96-7p. The ALJ reasonable relied on medical expert opinion which evaluated the medical evidence, and concluded that it did not substantiate Plaintiff's claims. (Tr. 100). See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (state agency physicians are "highly qualified" and "experts" in social security disability evaluation.); 42 U.S.C. § 423(d)(5)(A) ("An
The ALJ also noted that Plaintiff reported symptoms inconsistently. (Tr. 42-44). In Plaintiff's function report on May 17, 2012, she reported treatment for angioedema which can knock her off of her feet for weeks at time. (Tr. 232-33). Nine days earlier, on May 8, 2012, she reported that her respiratory symptoms had resolved. (Tr. 362). Plaintiff reported rarely needing medication to treat her asthma. (Tr. 362). Similarly, medical records show that Plaintiff reported her colitis was in abeyance on July 12, 2013. (Tr. 640). Less than a month later, she testified that her colitis left her immobile and that she had not improved with medication. (Tr. 75-76).
Plaintiff testified that she received unemployment benefits until May of 2012 and that in order to receive unemployment benefits; she contacted the agency every two weeks. (Tr. 58-59). Plaintiff affirmed that she stated to the unemployment agency that she was available to work while receiving benefits and that she considered that she would be able to work in customer service up through May 2012. (Tr. 59). The ALJ directly asked Plaintiff to explain how she could assert that she was able to work in order to secure benefits from the unemployment agency while telling the social security agency that she could not work during the same time period. (Tr. 60). Plaintiff stated that she believed that she could have worked in customer service during the period that she is claiming disability, conceded the contradiction and did not state that she believed that she could only work part-time for the purposes of unemployment benefits, or gave any explanation for the contradiction. (Tr. 59-61). Receipt of unemployment, although not determinative alone, may be considered by the ALJ. See Myers v. Barnhart, 57 Fed. Appx. 990, 997 (3d Cir.2003) (It is "entirely proper for the ALJ to consider that [Plaintiff's] receipt of unemployment benefits was inconsistent with a claim of disability during the same period"); Burnside v. Colvin, No. 3:13-CV-2554, 2015 WL 268791, at *17 (M.D.Pa. Jan. 21, 2015) (discussing authority from different circuits).
Plaintiff's activities of daily living do not indicate that she can perform substantial gainful activity, but do indicate inconsistencies. While ADLs and sporadic and transitory activities cannot be used to show an ability to engage in "substantial gainful activity" (20 C.F.R. §§ 404.1572(c), 416.972(c); SSR 96-8P; Fargnoli v. Massanari, 247 F.3d 34, 40 n. 5 (3d Cir.2001)), it is permissible for such activities to be used to assess a claimant's credibility in light of any true contradiction between his or her alleged severity of symptoms and the claimant's activities. See e.g., Horodenski v. Conim'r of Soc. Sec., 215 Fed. Appx. 183, 188 (3d Cir.2007) (finding significant a plaintiff's testimony about her daily activities was internally inconsistent, thus supporting the ALJ's determination of according her testimony little weight); Smith v. Astrue, 359 Fed.Appx. 313, 317 (3d Cir.2009) (claimant's testimony that she was essentially bedridden contradicted by evidence that she had been primary caretaker for small child for two years); Gleason v. Colvin, 152 F.Supp.3d 364, 380 (M.D.Pa. 2015); see also Orn v. Astrue, 495 F.3d 625, 636 (stating that inconsistencies in testimony or between testimony and other evidence is proper reason to discredit a social security plaintiff).
Plaintiff acknowledged that the findings of her treating doctors contrast with her own report regarding the severity of her
At every session with Dr. Johnson, on October 9, 2011, October 21, 2011, January 26, 2012, May 7, 2012, June 18, 2012, August 6, 2012, September 17, 2012, October 11, 2012, and November 5, 2012, Dr. Johnson observed that Plaintiff's activities of daily living were appropriate. (Tr. 305, 313, 318, 330, 469, 479-80). On October 21, 2011, Plaintiff reported to Dr. Johnson that she lived with her nine-year-old child and was able to complete her activities in daily living ("ADLs") independently. (Tr. 329). Plaintiff stated that she was able to maintain her home and do household chores. (Tr. 329). On October 24, 2011, she reported that currently she's able to get to the store if she and her child need food. (Tr. 297). Plaintiff reported that she can compel herself to do essential tasks, although she has to push herself to do anything and must keep pushing herself to finish the task and finds this exhausting. (Tr. 298). On September 17, 2012, Plaintiff reported making an effort to get her child out of the house and playing with friends more. (Tr. 475).
In the medical records, on January 19, 2012, Plaintiff reported going to the gym regularly; on May 7, 2012, she reported she was getting exercise but could not participate in group classes; on August 28, 2012, she reported that she takes her child to the YMCA and also works out there; and on October 24, 2012, Plaintiff reported going to the gym regularly. (Tr. 305, 314, 466, 476). However, in Plaintiff's function report submitted May 17, 2012, she indicated that she only goes outside to take her child to and from school and due to her depression and anxiety it is difficult to deal with life and people. (Tr. 236). Plaintiff stated that she could only walk five minutes before she would need to stop and rest until she has counted to thirty. (Tr. 238). Plaintiff reported that her medication relieves pain for four hours; however, the side effects render her immobile. (Tr. 242). In 2013, she testified that she "cannot walk up a flight of stairs without feeling like I'm going to lose my breath." (Tr. 77-78). Although her ability to go to the gym regularly does not independently show she can perform SGA, it is a documented inconsistency with the claims she submitted in support of her application for disability benefits under the Act. "One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record." SSR 96-7P. Consequently, some of Plaintiff's activities of daily living contradict the claims she made in support of obtaining DIB.
Thus, even if the ALJ erred in drawing an adverse credibility inference from the fact that Plaintiff cares for an eight-yearold child, such error is harmless. See Williams v. Barnhart, 87 Fed.Appx. 240, 243-44 (3d Cir.2004); Napoli v. Colvin, No. 3:13-CV-01815, 2014 WL 2808603, at *11 at n.23 (M.D. Pa. June 20, 2014) (finding harmless error harmless error under the totality of the evidence); Bivins ex rel.
B. VA Disability Rating
Plaintiff testified that she received a 70% disability rating from the VA. (Tr. 65). Plaintiff argues that the ALJ failed to develop the record to obtain documentation of a disability determination ("rating") of 70 percent from the VA and that the Judge erred in giving little weight to the disability rating of 70 percent from the VA based on the reasoning that it was not clear "that the standards for determination of disability under the SSA were applied in rendering the rating," and it was not clear "whether such a determination was rendered by an acceptable medical source." Pl. Brief at 9-10. As will be explained below, the Court finds that the ALJ did not fail to develop the record and the ALJ gave sufficient consideration to Plaintiff's VA disability rating.
i. VA Disability Compensation
The VA disability rating process is substantively different from the social security disability determinations. See e.g., Bowyer v. Brown, 7 Vet.App. 549, 552 (1995) (recognizing that "there are significant differences in the definition of disability under the Social Security and VA systems"); Hannington v. Sun Life & Health Ins. Co., 711 F.3d 226, 233-34 (1st Cir.) cert. denied, ___ U.S. ___, 134 S.Ct. 285, 187 L.Ed.2d 152 (2013). The court in Fitzgerald v. Astrue observed:
Fitzgerald v. Astrue, No. CIV.A. 2:08-CV-170, 2009 WL 4571762, at *7 (D. Vt. Nov. 30, 2009). As the First Circuit Court of Appeals observed in Hannington v. Sun Life & Health Ins. Co.:
Hannington v. Sun Life & Health Ins. Co., 711 F.3d 226, 233-34 (1st Cir.) cert. denied, ___ U.S. ___, 134 S.Ct. 285, 187 L.Ed.2d 152 (2013). "Congress has created
Shinseki v. Sanders, 556 U.S. 396, 412, 129 S.Ct. 1696, 1707, 173 L.Ed.2d 532 (2009); see also H.R. REP. 100-963, 13, 1988 U.S.C.C.A.N. 5782, 5795; Jaquay v. Principi, 304 F.3d 1276, 1280 (Fed.Cir.2002) overruled on other grounds by Henderson v. Shinseki, 589 F.3d 1201 (Fed.Cir.2009) (noting Congress' recognition of the "strongly and uniquely pro-claimant system of awarding benefits to veterans") (citations omitted).
The VA provides the following types of rating and compensation determinations for "service-connected" disabilities
38 C.F.R. § 4.1. Section 4.15 explains:
38 C.F.R. § 4.15 (emphasis added).
The VA rates the degree of a veteran's impairment as categorized by diagnostic
There are five levels of the decision making and appeal process that a veteran can pursue with regards to a rating decision. E.g. Veterans for Common Sense v. Shinseki, 644 F.3d 845, 856-58 (9th Cir. 2011) opinion vacated on other grounds, 678 F.3d 1013 (9th Cir.2012); VA Adjudication Procedures Manual (M21-1 Part 3). The initial rating specialist is called a "Rating Veterans Service Representative" and if a veteran is unsatisfied with the rating percentage determined by the "Rating Veterans Service Representative," the veteran can appeal for a de novo review of law and fact by a senior ratings specialist called a Decision Review Officer ("DRO"), and if still unsatisfied, a veteran can appeal for another de novo review of law and fact before the BVA. E.g. 38 C.F.R. § 20.1507; VA Adjudication Procedures Manual (M21-1 Part 3); Palmguist v. Shinseki, 689 F.3d 66, 68 (1st Cir.2012).
Rating decisions indicate the diagnostic code, the period of time for which the rating determination applies, and often consist of lengthy boilerplate language quoting verbatim from the diagnostic codes and percentage of severity that applies to the veteran's symptoms. See e.g., Lucas v. Astrue, No. 5:12-CV-131-FL,
Fulltime employment does not necessarily contradict a 70% disability rating. See e.g., Jarrard v. Dep't of Justice, 669 F.3d 1320, 1321 (Fed.Cir.2012) (80 percent rating qualifying for federal hiring preference under 5 U.S.C. § 2108(3)(C)); Spence v. Foxx, 159 F.Supp.3d 483, 487-88 (D.N.J. 2014), appeal dismissed (Mar. 19, 2015); (Title Redacted by Agency), Bd. Vet.App. 1524856 (June 10, 2015) (finding only 70 percent PTSD rating warranted for employed veteran); (Title Redacted by Agency), Bd. Vet.App. 1513531 (Mar. 30, 2015) (granting a veteran 70 percent rating for PTSD while "still employed and [having] a good relationship with his wife and child"); (Title Redacted by Agency), Bd. Vet.App. 1442296 (Sept. 22, 2014) (veteran employed with 70 percent rating for PTSD); (Title Redacted by Agency), Bd. Vet.App. 1440791 (Sept. 12, 2014) (granting a veteran 70 percent rating for PTSD while still gainfully employed); cf. Rutledge v. Illinois Dep't of Human Servs., 785 F.3d 258, 259 (7th Cir.2015) (noting that "[a] veteran is deemed totally disabled if he suffers from an impairment that would `render it impossible for the average person to follow a substantially gainful occupation,' even if the veteran applying for benefits is able, through exceptional ability or exertion, to work full time").
In contrast, TDIU "may be assigned" when the veteran has a "scheduler rating less than [100%]," but is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16, see Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). "[V]eterans... who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled." 38 C.F.R. § 4.17. Sections 4.16 and 4.17 exclude marginal employment from the definition of substantial gainful occupation using standards such as income level or protected employment in a sheltered workplace. See id.
Even with TDIU under 38 C.F.R. § 4.17 and 100 percent scheduler ratings, which are often considered most similar to SSA disability regulations, there exist significant differences from SSA disability determination requirements. See e.g., Eastvold v. Astrue, No. CIV 03-3054 MJD/RLE, 2010 WL 1286334, at *44 (D.Minn. Feb. 12, 2010) report and recommendation adopted as modified, No. CIV 03-3054 MJD/RLE, 2010 WL 1286338 (D.Minn. Mar. 29, 2010) ("While we acknowledge some facial inconsistency, which arises from the VA's finding that an individual is totally disabled, when the same individual is denied Social Security benefits, the basis for different rulings can be explained by the differences in the underlying Records, and opinions presented, and by different purposes served by the distinctive standards of disability ratings"); Dean v. Astrue, No. C08-5112RJB-KLS, 2008 WL 4585328, at *7 (W.D.Wash. Oct. 14, 2008) ("given the difference in the VA's approach to determining entitlement to individual unemployability it is not even clear that a VA rating decision of 100% equates with a
Jenkins v. Astrue, No. 1:11-CV-23-MP-GRJ, 2012 WL 807487, at *10 n. 26 (N.D.Fla. Feb. 8, 2012) report and recommendation adopted, No. 1:11CV23-MP-GRJ, 2012 WL 807263 (N.D.Fla. Mar. 9, 2012).
ii. Evidentiary Requirements
The VA rules for evaluating evidence are distinguishable from the SSA. For example within the VA, "[w]hen after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant." 38 C.F.R. § 4.3. For VA disability determinations, an adjudicator will consider "competent medical evidence" which means:
38 C.F.R. § 3.159(a)(1). According to the Federal Circuit Court of Appeals in Parks v. Shinseki:
Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir.2013) cert. denied, ___ U.S. ___, 134 S.Ct. 2661, 189 L.Ed.2d 209 (2014) (internal citations omitted). While the SSA has distinct requirements and a hierarchy of authority of medical and lay evidence, the VA generally does not require specific credentials or qualifications for the weight given for medical opinion evidence for physical impairments. Compare 38 C.F.R. § 3.159 with 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) and Forster v. Colvin, No. 3:13-CV-02699-GBC, 2015 WL 1608741, at *8 (M.D.Pa. Apr. 10, 2015) (discussing weight accorded to "acceptable medical source" opinions and opinions from those who are not "acceptable medical sources"); Bourdreau v. Shinseki, No. 08-3126, 2010 WL 3119531, at *4 (Vet.App. Aug. 9, 2010) (refusing to address argument that a vocational specialist's opinion should be allotted more weight since the court could not make factual determinations in the first instance and that "competency `is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [weight and credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'"). For example, while SSA regulations consider opinions from a nurse practitioner or physician assistant to be "non-medical opinions" which cannot be the basis to establish a diagnosis and may be accorded less weight, (Forster v. Colvin, No. 3:13-CV-02699-GBC, 2015 WL 1608741, at *8), the same opinions would be considered "competent" within the VA disability determination process. See e.g., 38 C.F.R. § 3.159(a)(1); Parks v. Shinseki, 716 F.3d 581, 585; Ruiz-Rojas v. Peake, No. 06-3590, 2008 WL 4414306, at *3 (Vet.App. Sept. 16, 2008) (compensation and pension examination conducted by a nurse practitioner).
While not delineating specific required credentials for mental health opinions rendered by private treatment sources, the VA, however, has requirements regarding qualifications and credentials for C & P opinions rendered for mental health impairments. See VHA Directive 2012-021, "Qualifications For Examiners Performing Compensation And Pension (C & P) Mental Disorder Examinations."
C. Duty to Develop
In the social security context, the ALJ must develop the record and provide an explanation for how evidence in the record is treated. See e.g. 38 C.F.R. § 4.3. "It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). "While an ALJ is required to assist the claimant in developing a full record, he or she has no such obligation to `make a case' for every claimant." Kenyon v. Colvin, 2013 WL 6628057 (M.D.Pa.2013). The burden still
"[A] challenge to the development of the record must allege prejudice." Hartzell v. Colvin, No. 3:14-CV-00936-GBC, 2015 WL 5829780, at *8 (M.D. Pa. Oct. 1, 2015) (citing Coe v. Astrue, 3:07-CV-0500, 2008 WL 818948 (M.D.Pa. Mar. 25, 2008); McCurry v. Astrue, CIV.1:CV-07-1235, 2008 WL 2914368 (M.D.Pa. July 23, 2008)).) "The question is not `whether every question was asked which might have been asked ... [but] whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.'" Jozefick v. Shalala, 854 F.Supp. 342, 344 (M.D.Pa. 1994) (Vanaskie, J.) (quoting Edwards v. Sullivan, 937 F.2d 580, 585-86 (11th Cir. 1991)); see also Reefer v. Barnhart, 326 F.3d 376, 380-81 (3d Cir.2003) (Plaintiff was prejudiced by the failure of the ALJ to obtain medical records, including a head CT, documenting brain stem surgery and a stroke); Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980) (Claimant was "prejudiced by" the failure to develop the record (internal citations omitted)); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979) (Claimant was "prejudiced by lack of counsel and passivity of the ALJ."); Cherundolo v. Colvin, No. 1:14-CV-1118, 2015 WL 5567966, at *13 (M.D.Pa. Sept. 21, 2015) (Remanding where "Plaintiff has not identified any evidentiary gap arising from" the alleged failure to develop the record).
Allowing a claimant to secure a remand for failing to develop the record without any showing of prejudice would allow a back door around the materiality requirement of a sentence six remand. Pursuant to sentence six of 42 U.S.C. § 405(g):
Id. (emphasis added). In order to be material, "there [must] be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination." Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3d Cir.1984). Consequently, whether Plaintiff is alleging that the ALJ failed to develop the record or alleging that new and material evidence require remand pursuant to Sentence Six, she must demonstrate that the evidence was material and she was prejudiced by the omission. The ALJ "will evaluate every medical opinion" in the record. 20 C.F.R. 404.1527(c). "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis,
i. Analysis: Omission of Rating Decision Letter
Plaintiff fails to establish that she was prejudiced by allegedly wrongful omission of the ratings decision letter because she failed to proffer the letter to the ALJ, the Appeals Council, and the Court. The Court cannot engage in meaningful judicial review of Plaintiff's claim that the ALJ erred in failing to obtain documentation if the Court cannot review the allegedly wrongfully omitted documentation. See Herring v. Colvin, No. 3:12-cv-2211-MWB, 181 F.Supp.3d 258, 2014 WL 12539902 (M.D.Pa. Sept. 29, 2014) (Adopting Report and Recommendation that claimant's appeal be denied where claimant alleged the ALJ should have obtained additional medical records, but did not proffer those records into evidence before the Appeals Council or Court). As in Herring, "Plaintiff may not need to proffer new evidence. However, Plaintiff must proffer the evidence, inform the Court as to the content of that evidence, provide a new argument to the Court based on that evidence, or otherwise make a showing of prejudice." Plaintiff is in a better position than the ALJ, and the Court, to provide the rating decision and has not done so. See id. at 22 (citing Money v. Barnhart, 91 Fed.Appx. 210, 215 (3d Cir.2004)).
Plaintiff also does not enumerate what "relevant and material" fact that the VA rating document would provide that cannot already be discerned from Plaintiff's testimony, the VA medical records, VA statutes and regulations. (Pl.Brief). As described above, a rating decision has more
The VA has a "General Rating Formula for Mental Disorders" which, is based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-IV). 38 C.F.R. § 4.130. While a rating decision indicating the diagnostic code may be relevant information for physical impairments, the diagnostic codes for all mental disorders are rated based on the same indicia of severity (see e.g., Mauerhan v. Principi, 16 Vet.App. 436, 441-42 (2002)), similar to a GAF score. Compare 38 C.F.R. § 4.130 with supra (explaining GAF scores).
Consequently, Plaintiff has not demonstrated that the ALJ failed to obtain evidence that was relevant and material. See 20 C.F.R. 410.640. Plaintiff has identified no "evidentiary gaps" that suggest she was prejudiced by its omission. Jozefick, 854 F.Supp. at 344 (internal citations omitted). Plaintiff's failure to proffer the ratings documentation precludes the Court from concluding that she was prejudiced by its omission. Id.
Plaintiff also fails to establish that the ALJ's explanation for assigning little weight to the 70% rating was insufficient. While the ALJ's reasoning lacks clarity, it still allows for meaningful judicial review. See e.g., Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d Cir.2013) (Court may "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned"); Varano v. Colvin, No. 3:14-CV-001467-GBC, 2015 WL 5923615, at *9 (M.D.Pa. Oct. 9, 2015). It is
Different types of evidence require different types of explanation. See e.g. 20 C.F.R. § 404.1527(c). "There is no requirement that the ALJ discuss in [the] opinion every tidbit of evidence included in the record." Hur v. Comm'r Soc. Sec., 94 Fed.Appx. 130, 133 (3d Cir.2004). The ratings determination is not a medical opinion, because it is not from an acceptable medical source, and is not an opinion from another medical source. See SSR 06-3p. While disability determinations from other government agencies are not binding (20 CFR §§ 404.1504, 416.904), they must be considered. SSR 06-03p. By "consider," SSR 06-03P means to provide explanation sufficient for a "subsequent reviewer to follow the adjudicator's reasoning." SSR 06-03P; see also Ritchie v. Comm'r of Soc. Sec., 540 Fed.Appx. 508, 510 (6th Cir.2013); Phillips v. Barnhart, 91 Fed.Appx. 775, 780 n. 7 (3d Cir.2004); Francis v. Comm'r Soc. Sec. Admin., 414 Fed.Appx. 802, 804 (6th Cir.2011) (social security regulations enumerating factors of an ALJ to consider "require only that the ALJ's decision include `good reasons' ... not an exhaustive factor-by-factor analysis"). The Court further notes that "[n]either 20 C.F.R. § 404.1504 nor SSR 06-03p requires that any specific level of weight be accorded a VA disability decision." Wilson v. Colvin, No. 2:13-CV-197-JDL, 2014 WL 4715406, at *5 (D.Me. Sept. 22, 2014).
The ALJ explicitly acknowledged and addressed
Moreover, the ALJ's decision to accord little weight to the VA rating was not solely based on Plaintiff's alleged errors. The ALJ also explained that the VA rating determination was inconsistent with the medical evidence. (Tr. 46). Such is sufficient to meet the substantial evidence requirement. See Davis v. Astrue, No. 10CV1732 BEN NLS, 2011 WL 3740365, at *10 (S.D.Cal. July 29, 2011) report and recommendation adopted, No. 10-CV-01732 BEN NLS, 2011 WL 3741010 (S.D.Cal. Aug. 24, 2011) (affirming decision where ALJ reviewed the evidentiary basis for the VA's rating and considered evidence from non-examining doctors that was not available to the VA).
The Court finds that the ALJ committed no error in according little weight to the VA rating of 70 percent for PTSD. Even if the ALJ erred, such would be harmless and a remand would not alter the outcome of the case. See e.g., Williams v. Barnhart, 87 Fed.Appx. 240, 243-44 (3d Cir. 2004).
D. Weight Accorded to Medical Opinions
Plaintiff argues that the ALJ erred in granting:
Pl. Brief at 10-11. Plaintiff argues that "[b]ecause the ALJ afforded only little or partial weight to all of the opinion evidence in the record, the ALJ's decision is improperly based on her own lay opinion
An ALJ is entitled generally to credit parts of an opinion without crediting the entire opinion. See Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at *5 (M.D.Pa. Mar. 23, 2015); Turner v. Colvin, 964 F.Supp.2d 21, 29 (D.D.C.2013) (agreeing that "SSR 96-2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions"); Connors v. Astrue, No. 10-CV-197-PB, 2011 WL 2359055, at *9 (D.N.H. June 10, 2011). It follows that an ALJ can give partial credit to all medical opinions and can formulate an RFC based on different parts from the different medical opinions. See e.g., Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at *5 (M.D.Pa. Mar. 23, 2015). Contrary to Plaintiff assertions, this is unlike a case where an ALJ completely rejects all medical opinions, even those which support the ALJ's RFC. See e.g., Thanh Tam Vo v. Colvin, No. 1:14-CV-00541-GBC, 2015 WL 5514981, at *4 (M.D.Pa. Sept. 15, 2015) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC).
There is a critical difference between cases where an ALJ who finds that a claimant is not disabled when all of the medical opinions indicate that the claimant is disabled and cases where the ALJ assesses the RFC that falls between competing opinions. Dr. Fretz opined that Plaintiff was not disabled. Although the ALJ did not afford Dr. Fretz's opinion significant weight because Dr. Fretz's opinion did not account for Plaintiff's temporary exacerbation of symptoms after the death of her child's father, the ALJ considered and assigned some weight to Dr. Fretz's opinion. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir.2011) (ALJ was entitled to rely on state agency opinion, even though ALJ "added restrictions [the physician] did not deem necessary"); Golubosky v. Comm'r of Soc. Sec., No. CIV.A. 3:13-196, 2014 WL 3943029, at *7 (W.D.Pa. Aug. 12, 2014) ("[G]iving Plaintiff the benefit of the doubt, the ALJ gave Dr. Torio's opinion some weight, but noted that the record supported greater limitations"); Malfer v. Colvin, No. CIV.A. 12-169J, 2013 WL 5375775, at *4 (W.D.Pa. Sept. 24, 2013) ("the ALJ properly relied on, and accorded some weight to, Dr. Bryan's physical RFC assessment of plaintiff. As in Chandler, the ALJ did not simply rubber stamp Dr. Bryan's opinion. Rather, the ALJ incorporated Dr. Bryan's opinion into the RFC Finding to an extent but gave plaintiff the benefit of doubt by limiting him to sedentary (instead of light) work and including additional restrictions to accommodate his functional limitations.").
The Court can reasonably discern that the ALJ relied on Dr. Fretz's opinion to make the overall determination that Plaintiff was not disabled. Dr. Fretz's opinion was detailed, with significant explanation and occupational limitations. Dr. Fretz reviewed Plaintiff's medical records through June of 2012 from the Lebanon VA Medical Center and from the Lebanon Free Clinic, along with Plaintiff's function report, and work history. (Tr. 98). He noted that Plaintiff was diagnosed with Major Depressive Disorder and PTSD and had been in outpatient psychological treatment since October 2011. (Tr. 100). Dr. Fretz observed that the "treatment notes manifest no evidence of a thought disorder, no evidence of severe dysfunction in any area," "[s]he is capable of self-care/hygiene," "[s]he is able to perform ADLs, able to drive, [and] shop." (Tr. 100). Dr. Fretz noted that although Plaintiff "describes
For the weight accorded to Plaintiff's GAF scores, the ALJ explained that:
(Tr. 45). Substantial evidence supports the ALJ's observation that the GAF scores viewed in totality support a finding that Plaintiff's symptoms were exacerbated by the death of her child's father and later improved. See Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at *4 (M.D.Pa. Mar. 23, 2015); Pendergast v. Colvin, No. 2:13CV933, 2014 WL 4680730, at *8 (W.D.Pa.Sept.19, 2014); Gilroy v. Astrue, 351 Fed.Appx. 714, 715-16 (3d Cir. 2009).
The ALJ also found that Dr. Stephens' December 2012 opinion was:
(Tr. 45). On December 31, 2012, Dr. Stephens completed a PTSD disability benefits questionnaire which was not based on examination of Plaintiff, rather based on review of his last assessment and subsequent treatment notes. (Tr. 449-58). Dr. Stephens stated that "[b]ased on a review of clinical notes in the VA electronic medical record since the time of examination, I see no reason to alter the opinion rendered on 8/26/11." (Tr. 458). Dr. Stephens did not address Plaintiff's improvement of symptoms reported by Dr. Johnson. (Tr. 458). As noted above, even Plaintiff disagreed with Dr. Johnson's more benign characterization of her symptoms. See supra discussion of (Tr. 73-74, 77-78). Dr. Stephens was an examining, not treating source. (Tr. 458). Substantial evidence supports the weight accorded to Dr. Stephen's opinion.
For Dr. Mulligan's May 2013 opinion from a compensation and pension examination by the Department of Veterans Affairs, while the ALJ was unable to ascertain that the opinion was given by a
The ALJ gave little weight to the February 2012 opinion of Plaintiff's treating psychologist, Dr. Johnson indicating that Plaintiff's PTSD symptoms were in the severe range and made it difficult, if not impossible, for her to maintain employment at this time and for the foreseeable future. (Tr. 46). The ALJ explained that this opinion was not consistent with the notes demonstrating improvement of symptoms. (Tr. 46). The ALJ further observed that the degree of severity of Plaintiff's symptoms was inconsistent with Plaintiff regular gym attendance. (Tr. 46). Relying on Plaintiff's reported activities of daily living, non-medical evidence is an acceptable reason to assign less weight to Dr. Johnson. See Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936 (ALJ may rely on non-medical evidence which is inconsistent with treating physician's opinion); Torres v. Barnhart, 139 Fed.Appx. 411, 414 (3d Cir.2005) (ALJ permissibly rejected treating opinion "in combination with other evidence of record including Claimant's own testimony"); Kays v. Colvin, No. 1:13-CV-02468, 2014 WL 7012758, at *7 (M.D.Pa. Dec. 11, 2014); Marr v. Colvin, No. 1:13-cv-2499 (M.D. Pa. April 15, 2015).
E. RFC limitations for concentration, persistence, and pace
Plaintiff argues that Step 4 and Step 5 were not supported by substantial evidence and that the ALJ erred by not including "any limitations on Plaintiff's ability to perform concentration, persistence, or pace tasks in the RFC." Pl. Brief at 8. At step four, the ALJ determined that Plaintiff "was capable of performing past relevant work as a clerk, general" and that such work did not contradict the RFC. (Tr. 46). In addition to determining that Plaintiff was capable of performing past relevant work, the ALJ found that with her given RFC, there were additional jobs existing in the national economy that she was able to perform. (Tr. 47). For the RFC the ALJ found that Plaintiff:
(Tr. 41). With regard to concentration, persistence or pace, the ALJ found that
(Tr. 40) (emphasis added). The ALJ also observed that on February 14, 2013, "[Plaintiff's] attention and concentration were observed to be intact, and [Plaintiff's] recent and remote memory were adjudged to be good." (Tr. 44).
"`[G]reat specificity' is required when an ALJ incorporates a claimant's mental or physical limitations into a hypothetical." Ramirez v. Barnhart, 372 F.3d 546, 554-55 (3d Cir.2004) (internal citations omitted); see also SSR 96-8p (requiring a "more detailed assessment" of the claimant's mental limitations at step five of the disability analysis). In Ramirez, the Court held that a limitation to unskilled, simple tasks accommodated for limitations in concentration, but not necessarily pace. Id. The Court explained that a medical expert had specifically testified that the claimant's ability to finish tasks was dependent on her proximity to her children. Id. In Ramirez, the vocational expert testified "that each of the jobs suitable for Ramirez (assembler, packer, and inspector) would have daily production quotas and that Ramirez would have to maintain a certain degree of pace to maintain those jobs." Id. The Court also explained that:
Id. Thus, in Ramirez, the record otherwise "suggest[ed]" that an additional limitation related was necessary. Id. As another Court in this District has explained:
Whitmire v. Comm'r of Soc. Sec., 3:13-CV-1380, 2014 WL 582781, at *8-9 (M.D.Pa. Feb. 14, 2014) (Kane, J.); see also Santiago-Rivera v. Barnhart, CIV.A.
Here, Plaintiff merely asserts that, because the ALJ found Plaintiff to have moderate limitation in concentration, persistence, and pace, then the RFC was automatically incomplete. Plaintiff fails to perform the extra analysis required by Ramirez to indicate she had "clearly established in the record additional, specific deficiencies in concentration, persistence and/or pace that could not be adequately conveyed" by the hypothetical. Id. Plaintiff has not identified any medical records documenting impaired concentration and attention.
The Court finds that substantial evidence supports the ALJ's RFC, that the ALJ explained evidence of Plaintiff's ability to manage survivor benefits, is able to drive and take public transportation as examples of her ability to complete tasks. Dr. Fretz reviewed the medical evidence and concluded it supported no more than a mild limitation in concentration, persistence, and pace. (Tr. 100). The ALJ accounted for Plaintiff's moderate difficulties with "concentration, persistence or pace," by specifying that Plaintiff required a job that allowed up to five breaks during the work day for a total of up to eighty minutes in a work day.
Any error with regard to failing to limit Plaintiff to unskilled or simple work was harmless because the VE identified additional jobs that Plaintiff could perform that were unskilled, such as a small parts assembler, binary machine feeder, a bakery racker, and an electrical accessories assembler. (Tr. 90-94). The Dictionary of Occupational Titles ("DOT") indicates that an electrical accessories assembler has a reasoning level of "2" and a standard vocational preparation of "2," which are associated with simple work. See DOT 729-687-010 Assembler, Electrical Accessories I; Simpson v. Astrue, CIV.A. 10-2874, 2011 WL 1883124, at *6 (E.D.Pa. May 17, 2011) ("There is a growing consensus within this Circuit and elsewhere that `[w]orking at reasoning level 2 [does] not contradict the mandate that [a claimant's] work be simple, routine, and repetitive.' Money v. Barnhart, 91 Fed.Appx. 210 (3d Cir. 2004).") (internal citations omitted); SSR 00-4P ("The DOT lists a specific vocational preparation (SVP) time for each described occupation. Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2"); 20 C.F.R. § 404.1568 ("Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time."). Plaintiff fails to show that the record established limitations that were omitted from the RFC, as required by Ramirez.
F. VE Hypothetical
A question to a vocational expert must reflect "all of the claimant's impairments
Therefore, the Court finds that the ALJ made the required specific findings of fact in determining whether Plaintiff met the criteria for disability, and the findings were supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Brown, 845 F.2d at 1213; Johnson, 529 F.3d at 200; Pierce, 487 U.S. at 552, 108 S.Ct. 2541; Hartranft, 181 F.3d at 360; Plummer, 186 F.3d at 427; Jones, 364 F.3d at 503. Substantial evidence is less than a preponderance of the evidence, but more than a mere scintilla of evidence. It does not mean a large or significant amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr., 806 F.2d at 1190. Here, a reasonable mind might accept the relevant evidence as adequate.
Accordingly, it is HEREBY RECOMMENDED:
The parties are further placed on notice that pursuant to Local Rule 72.3:
38 C.F.R. § 4.130; see e.g., (Title Redacted by Agency), Bd. Vet.App. 1546111 (Oct. 30, 2015) (granting a 70 percent rating under diagnostic code 9411 for PTSD). The symptoms listed under 38 C.F.R. § 4.130:
Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002).