DANNER v. COLVIN
MEMORANDUM AND ORDER THAT THE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ELIZABETH T. HEY DATED 2/15/17 IS APPROVED AND ADOPTED. PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ARE OVERRULED. PLAINTIFF'S REQUEST FOR REVIEW IS DENIED. JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT NANCY BERRYHILL AND AGAINST PLAINTIFF ANGELA DANNER; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/20/17. 6/21/17 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NANCY BERRYHILL, 1
Acting Commissioner of Social Security
June 20, 2017
In this action, plaintiff Angela Danner seeks review of the final decision of defendant, the
Acting Commissioner of the Social Security Administration (the “Commissioner”), denying her
claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI of the Social Security Act (“SSA”). The denial was based on a decision
by an Administrative Law Judge (“ALJ”) that plaintiff was not disabled under the SSA. By
Order dated May 11, 2016, the Court referred the case to United States Magistrate Judge
Elizabeth T. Hey for a Report and Recommendation (“R & R”). On February 15, 2016, Judge
Hey issued an R & R recommending that plaintiff’s Request for Review 2 be denied. Presently
before the Court are plaintiff’s Objections to the R & R. For the reasons that follow, the Court
Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill is substituted for
Carolyn W. Colvin as defendant in this suit.
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review but did not file
an actual Motion or Request for Review. Plaintiff’s Brief states on the second page that “this
matter is appropriately before the Court for review under 42 U.S.C. § 405(g).” The Court thus
construes the Brief as a Request for Review.
approves and adopts the R & R, overrules plaintiff’s Objections, and denies plaintiff’s Motion
and Request for Review.
The background of this case is set forth in detail in Magistrate Judge Hey’s R & R and
will be recited in this Memorandum only as necessary to address plaintiff’s Objections. Plaintiff
applied for DIB and SSI on February 19, 2013, for disability allegedly beginning on February 19,
2013. 3 Administrative R. (“R.”) at 147-164. After her application was denied, plaintiff
requested a hearing which was held on June 24, 2014. R. at 14. In a decision dated July 24,
2014, the ALJ concluded that plaintiff was not disabled under the SSA. Id. In so concluding, the
ALJ found that (1) plaintiff suffered from seven severe impairments (fibromyalgia, obesity,
affective disorder, anxiety related disorder, somatic disorder, and personality disorder), and four
non-severe impairments (gastroesophageal reflux disease, bilateral carpal tunnel syndrome
(“CTS”), urinary stress incontinence, and dyslipidemia), R. at 17-18; (2) plaintiff’s impairments,
either alone or in combination, did not meet or equal the severity of a listed impairment under the
SSA, R. at 18; (3) plaintiff had the residual functional capacity (“RFC”) “to perform light work”
with additional restrictions, including, in relevant part, “the option to sit or stand at will;
frequently balance, occasionally climb stairs or ramps, stoop, kneel, and crouch, but never climb
ladders, ropes, or scaffolding or crawl; gross or fine manipulation and feeling with the bilateral
upper extremities limited to frequently; . . . work is limited to simple, routine, repetitive work in
a[ ] work environment free from fast-paced production, involving only simple work-related
decisions, and with few, if any, work place changes; no interaction with the public as part of the
work; occasional interaction with coworkers but no tandem tasks; and occasional supervision,”
Plaintiff originally alleged that her disability began on September 1, 2008. R. at 145, 147. She
amended the date to February 19, 2013, at the hearing on June 24, 2014. R. at 38, 202.
R. at 21; and (4) based on the limitations found by the ALJ and the testimony of a vocational
expert, plaintiff was capable of performing jobs that existed in significant numbers in the
national economy and was thus not disabled under the SSA, R. at 28-29.
The Appeals Council denied plaintiff’s request for review on July 24, 2015, and the
ALJ’s determination was thus affirmed as the Commissioner’s final decision. R. at 1. Plaintiff
commenced this action seeking review of the Commissioner’s final decision pursuant to 42
U.S.C. § 405(g) on December 14, 2015.
A district court evaluates de novo those portions of a magistrate judge’s report and
recommendation to which an objection is made and may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). A district court’s review of the Commissioner’s final decision is limited to
determining whether the denial of benefits “is supported by substantial evidence on the record as
a whole” and whether the correct legal standards were applied. McCrea v. Comm’r of Soc. Sec.,
370 F.3d 357, 359 (3d Cir. 2004). “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’ Although substantial
evidence is more than a mere scintilla, it need not rise to the level of a preponderance.” Id. at
359-60 (quoting Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003)).
To establish a disability under the SSA, the claimant must demonstrate some “medically
determinable basis for an impairment that prevents her from engaging in any substantial gainful
activity” for the statutory period. Diaz v. Comm’r of Soc. Sec., 577 F. 3d 500, 503 (3d Cir. 2009)
(quotation marks and citations omitted); 42 U.S.C. § 423(d)(1)(A). A claimant bears the initial
burden of proving the existence of a disability. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir.
Disability claims are evaluated using a “five-step sequential evaluation” of whether a
claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment that
meets or equals the requirements of a listed impairment; (4) can perform past relevant work
based on her RFC; and (5) if not, can perform other work in view of her residual functional
capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520, 416.920; see McCrea,
370 F.3d at 360. In deciding a disability claim, “an ALJ must clearly set forth the reasons for his
decision. Conclusory statements that a condition does not constitute a medical equivalent of a
listed impairment are insufficient. The ALJ must provide a discussion of the evidence and an
explanation of reasoning for his conclusion to sufficiently enable meaningful judicial review.”
Diaz, 577 F. 3d at 504 (quotation marks and citations omitted). However, the ALJ “need not
employ particular magic words[,] . . . particular language[,] or adhere to a particular format in
conducting [the] analysis.” Id. (quotation marks omitted).
In evaluating medical opinion evidence, an ALJ must “consider the medical opinions in
[a] case record together with the rest of the relevant evidence.” 20 C.F.R. §§ 404.1527(b),
416.927(b). Generally, the opinion of a medical source who has evaluated the claimant is given
more weight than a source who has not, and the medical opinion of a treating source 4 that “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the case record]” will be given “controlling
weight.” 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). “When a conflict in the evidence
A “treating source” is a medical source that has provided the claimant with “medical treatment
or evaluation and who has, or has had, an ongoing treatment relationship” with the claimant. 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the
wrong reason.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 2000) (quoting Mason v. Shalala,
994 F.2d 1058, 1066 (3d Cir. 1993). When an ALJ does not give the opinion of a treating source
controlling weight, the ALJ must weigh the opinion—considering, inter alia, the length and
nature of the treating relationship, and the supportability and consistency of the opinion—and
give reasons for the weight given to the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
see Plummer, 186 F.3d at 429 (“An ALJ may . . . afford a treating physician’s opinion more or
less weight depending upon the extent to which supporting explanations are provided.” (citation
Plaintiff filed six objections to the R & R. Plaintiff argues that Judge Hey erred in
finding that the ALJ’s decision was supported by substantial evidence because the ALJ (1) failed
to properly evaluate the severity of plaintiff’s bilateral CTS, (2) improperly found that plaintiff’s
impairments did not meet or equal the severity of a listed impairment, (3) improperly evaluated
the effect of plaintiff’s fibromyalgia, (4) erred in determining plaintiff’s RFC, (5) improperly
weighed the opinion of plaintiff’s treating physician, Dr. Tamayi Bwititi, and (6) improperly
evaluated plaintiff’s credibility. The Court addresses each objection in turn.
Plaintiff’s First Objection
Plaintiff first objects to Judge Hey’s conclusion that the ALJ properly evaluated the
severity of plaintiff’s bilateral CTS in step two of the five-step evaluation. Plaintiff asserts two
arguments with respect to this issue: (1) “the Magistrate Judge failed to consider that
conservative treatment does not automatically indicate that Danner’s CTS is not disabling,” and
(2) medical evidence in the record demonstrates that her CTS was severe because “EMG studies
confirmed Danner’s CTS” and Dr. Bwititi opined that plaintiff “could only use her bilateral
hands 25% or less during the workday” due to her CTS. Objections 1-2 (citing R. at 619, 627).
This Court agrees with Judge Hey’s conclusion that the ALJ’s determination that
plaintiff’s CTS was not severe was supported by substantial evidence. First, the Court rejects
plaintiff’s argument with respect to plaintiff’s conservative treatment. While conservative
treatment is not determinative of the severity of a claimant’s symptoms, an ALJ may consider the
treatment a claimant has received in evaluating the claimant’s symptoms. See 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3); Sturgill v. Colvin, Civ. Action No. 15-1195, 2016 WL 4440345,
*10 (E.D. Pa. Aug. 23, 2016) (“It is permissible to consider conservative treatment as one reason
for discounting Plaintiff’s claims of severe pain.”). In determining that plaintiff’s CTS was not
severe, the ALJ considered not only plaintiff’s conservative treatment but also the lack of
objective evidence supporting plaintiff’s alleged severe limitations resulting from her CTS. As
stated by Judge Hey, the ALJ found that plaintiff’s CTS “required no more than the most
conservative of care, in this instance bracing and over-the-counter medication, with no objective
evidence of significant loss of gross or fine motor abilities.” R & R 23 (citing R. at 23-24).
Relatedly, the Court rejects plaintiff’s second argument that the medical evidence in the
record demonstrates that plaintiff’s CTS was severe. On this issue, Judge Hey stated that the
EMG studies cited by plaintiff were referenced in a treatment note from Dr. Bwititi from
November 2013, which stated that “in the past, [plaintiff] had EMG studies that confirmed carpal
tunnel,” but plaintiff “point[ed] to no record evidence of such studies, let alone any other
evidence confirming this condition[,]” and Dr. Bwititi’s note “could simply be relating what
Plaintiff herself reported . . . .” R & R 23 (citing R. at 619). Judge Hey further stated that “the
record does not contain objective evidence or testing from Dr. Bwititi corroborating this
diagnosis,” and, even assuming a diagnosis of CTS, Dr. Bwititi’s opinion regarding plaintiff’s
limitations from CTS was inconsistent with the opinion of examining physician, Dr. Phuoc Le,
who examined plaintiff on behalf of the Pennsylvania Bureau of Disability Determination. Id. at
23-24 (citing R. at 476, 628). Specifically, Dr. Bwititi opined that plaintiff “could use her hands
25% or less during the workday for reaching and fine/gross manipulation.” Id. at 23 (citing R. at
25, 627-28). However, Dr. Le opined that plaintiff had normal fine motor movements, had 100%
hand grip bilaterally, and could perform handling, fingering, and feeling bilaterally on a frequent
basis. Id. (citing R. at 462). Finally, Judge Hey noted that, despite the fact that the RFC limited
“gross or fine manipulation and feeling with the bilateral upper extremities” to
“frequently,” id. at 21, two of the jobs identified by the vocational expert involved no more than
occasional gross or fine manipulation, id. at 24 (citing R. at 54). Thus, “the ALJ properly
considered the limitations imposed by Plaintiff’s CTS, even though he did not find it to be
Having reviewed the record, the Court agrees with Judge Hey’s analysis on this issue. In
addition, as discussed further below, the ALJ adequately explained his decision to give Dr.
Bwititi’s opinion little weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Plummer, 186
F.3d at 429. The ALJ stated that “it appears Dr. Bwititi relied quite heavily on the subjective
report of symptoms and limitations provided by the claimant, and seemed to uncritically accept
as true most, if not all, of what the claimant reported,” on the grounds that plaintiff failed to
provide any records from Dr. Bwititi after November 2013, the “available records do not support
the extreme degree of limitation noted,” and plaintiff’s subjective complaints of her symptoms
were not reliable. R. at 25 (citing R. at 279-400, 452-58, 490-513, 599-624).
For the foregoing reasons, the Court overrules plaintiff’s first objection.
Plaintiff’s Second Objection
Plaintiff next objects to Judge Hey’s conclusion that substantial evidence supported the
ALJ’s determination that plaintiff’s impairments did not meet or equal a listed impairment.
Plaintiff contends that substantial evidence supports finding that she has marked impairments in
social functioning and in concentration, persistence, and pace. Objections 2-3.
Plaintiff first argues that that her testimony at the hearing demonstrates that she had
marked impairment in maintaining social functioning, id. (citing R. at 40, 46, 47, 49). On this
issue, the ALJ determined that plaintiff had a moderate limitation in social functioning. R. at 20.
Specifically, the ALJ stated that “[a]lthough the claimant alleges near complete social isolation
and difficulty getting along with authority figures, friends, family members, and neighbors, she
is admittedly able to live and interact with her children without reported difficulty; socializes
with her immediate family; and has sustained a romantic relationship throughout the period at
issue, all of which suggest at least some degree of retained functionality in this domain.” R. at
19 (citing R. at 215-28, 253-56).
Judge Hey concluded that the ALJ’s determination was supported by substantial
evidence, including medical opinion evidence. R & R 27-28. Dr. Thomas Schwarz, a consulting
psychologist who examined plaintiff in May 2013 on behalf of the Social Security
Administration, opined that plaintiff had moderate limitation “in interacting appropriately with
the public, supervisors, and co-workers,” and that plaintiff had marked limitation “in responding
appropriately to usual work situations and to changes in work setting.” R & R 27 (citing R. at
482). Dr. Sandra Banks, the psychological consultant who reviewed plaintiff’s records in June
2013 for the Disability Determination Explanation, opined that plaintiff was “not significantly
limited” in her “ability to maintain socially appropriate behavior[,] adhere to the basic standards
to neatness and cleanliness[,]” and “ask simple questions or request assistance,” and was
moderately limited in her ability to “interact appropriately with the general public,” “accept
instructions and respond appropriately to criticism from supervisors,” and “get along with
coworkers or peers without distracting them or exhibiting behavioral extremes.” R. at 66; see
also R & R 27.
With respect to these opinions, Judge Hey noted that the ALJ acknowledged the general
hierarchy of medical opinion evidence but nonetheless gave “Dr. Banks’ opinions significant
weight because they were supported by other evidence in the record.” R & R 28 (citing R. at 20,
39-40, 205-06, 218-19, 223). Additionally, both the ALJ and Judge Hey stated that plaintiff
failed to “produce therapy treatment, or psychiatric treatment notes which could support a
finding of greater limitation in the area of social functioning.” Id.
The Court rejects plaintiff’s argument that plaintiff’s testimony demonstrates marked
limitation in social functioning. First, the ALJ considered plaintiff’s subjective reports of her
symptoms during the relevant time period, but determined that they were not fully credible
because they were inconsistent and were not supported by the other evidence in the record. R. at
19 (citing 215-28), 20 (citing 441-58, 480-513, 599-624, 630-36), 24; see Williams v. Sullivan,
970 F.2d 1178, 1186 (3d Cir. 1992) (a claimant’s “subjective complaints must be substantiated
by medical evidence”).
Second, the Court agrees with Judge Hey that the ALJ’s determination that plaintiff was
moderately limited in social functioning was supported by substantial evidence. The Court notes
that, while the R & R does not specifically discuss the discrepancy between Dr. Schwartz’s
finding of one marked social limitation—responding appropriately to usual work situations and
to changes in work setting—and Dr. Banks’ finding of moderate limitation in the same area, the
ALJ explained that he gave Dr. Schwartz’s opinion “little weight” to the extent that it
“overestimates the severity of [plaintiff’s] impairments,” and was inconsistent with the
assessment of plaintiff’s treating mental health providers and with evidence “suggest[ing] a more
stable and controlled mental health presentation.” R. at 26 (citing R. at 441-51, 481-89, 630-36);
see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Plummer, 186 F.3d at 429.
Concentration, Persistence, and Pace
Plaintiff next argues that her marked limitations in concentration, persistence, and pace
are supported by the opinions of Dr. Schwartz and Dr. Bwititi. Objections 3 (citing R. at 481-83,
626-28). Specifically, plaintiff notes that Dr. Schwartz opined that plaintiff had moderate to
marked difficulty5 “carrying out simple instructions and making judgment on complex workrelated decisions” and marked difficulty “carrying out complex instructions and responding
appropriately to usual work situations and to changes in a routine work setting,” id. (citing R. at
481), and that Dr. Bwititi opined that plaintiff “frequently experience[d] pain or other symptoms
enough to interfere with attention and concentration needed to perform [even] simple tasks,” id.
(citing R. at 626).
Judge Hey rejected this argument in the R & R and determined that plaintiff did not
establish that she had marked limitations in concentration, persistence, and pace. R & R 28.
Judge Hey considered the opinion of Dr. Schwarz and the opinion of Dr. Banks and concluded
that, taken together, these opinions did not support a finding of marked limitations in
concentration, persistence, and pace. R & R 28 (citing R. at 481). Specifically, Judge Hey noted
With respect to carrying out simple instructions and “the ability to make judgments on complex
work-related decisions,” Dr. Schwartz checked both the “moderate” and “marked” boxes, and
drew an arrow between the two. R. at 481. He further noted “depending on task and current sx
[symptoms],” next to the boxes for carrying out simple instructions. Id.
that, in addition to moderate-to-marked and marked limitations, Dr. Schwarz found plaintiff only
mildly limited in her ability to understand and remember simple instructions and make
judgments on simple work-related decisions. R & R 28 (citing R. at 481). Further, Judge Hey
noted that Dr. Banks opined that plaintiff was “not significantly limited in her ability to carry out
very short and simple instructions, perform activities within a schedule, maintain regular
attendance, be punctual within customary tolerances, sustain ordinary routine without special
supervision, work in coordination with [or in proximity to] others, and make simple work-related
decisions” and was “moderately limited in her ability to carry out detailed instructions, maintain
attention and concentration for extended periods, . . . complete a normal workday and workweek
without interruptions from psychologically based symptoms, and . . . perform at a consistent pace
without [unreasonable] rest periods.” R & R 28-29 (citing R. at 65). Finally, Judge Hey
concluded that the ALJ’s determination of moderate limitation was also consistent with
plaintiff’s treatment notes from February 2013 through August 2014, which did not show marked
or significant impairments with respect to social functioning. R & R 29 (citing R. at 448, 63336).
Having reviewed the record, this Court rejects plaintiff’s argument that the opinions of
Dr. Schwartz and Dr. Bwititi support a determination that plaintiff had marked limitations in
concentration, persistence, and pace. This Court agrees with Judge Hey that, considered together
and with the other evidence in the record, the opinions of Dr. Schwarz and Dr. Banks support the
ALJ’s determination that plaintiff had moderate limitations in concentration, persistence, and
pace. To the extent that Dr. Schwarz opines that plaintiff has marked limitations in this area, this
Court concludes that, as discussed above, the ALJ adequately explained the limited weight he
gave such evidence. R. at 26.
For similar reasons, the Court rejects plaintiff’s argument that Dr. Bwititi’s opinion
demonstrates that plaintiff has marked limitations in this area. As discussed elsewhere in this
Memorandum, the ALJ sufficiently explained his reasons for affording Dr. Bwititi’s opinion
little weight, including its inconsistency with the other evidence of record and lack of evidence
supporting his opinion. R. at 25.
For all of the foregoing reasons, the Court overrules plaintiff’s second objection.
Plaintiff’s Third Objection
Plaintiff objects to Judge Hey’s conclusion that the ALJ’s determination with respect to
the severity of plaintiff’s fibromyalgia was supported by substantial evidence. Plaintiff contends
that the ALJ failed to properly evaluate the severity of plaintiff’s fibromyalgia and that “the
ALJ’s discussion of Danner’s fibromyalgia is not consistent with her treatment notes.”
Objections 3-4 (citing R. at 48, 217, 222, 472, 501, 502, 506, 507, 509, 577, 625-29).
The Court rejects these arguments. With respect to plaintiff’s fibromyalgia, the ALJ
stated that he “‘considered fibromyalgia and the effects of fibromyalgia’” and determined that
the medical evidence did not support plaintiff’s allegations regarding the severity of her
symptoms. R & R 30 (citing R. at 18, 21-22). Judge Hey concluded that this determination was
consistence with the medical evidence, including: (1) on April 30, 2013, Dr. Le found that
plaintiff had normal “fine motor movements in the hands,” that her “elbows, wrists, fingers, hips,
knees and ankles appear[ed] normal” and she had no muscle atrophy, that plaintiff was “able to
walk and move independently, . . . rise from a chair[,] and get on and off the examination table
with minimal effort,” and had only “mild tenderness in the cervical and lumbar spine regions and
. . . upper extremities;” and Dr. Le opined that plaintiff could sit for seven hours, stand for six
hours, and/or walk for six hours during an eight-hour work day, R & R 31 (citing R. at 461, 476);
(2) after starting physical therapy for fibromyalgia in May 2013, plaintiff asked to be discharged
in July 2013 “due to multiple complications in her life,” id. (citing R. at 500-09, 566); and (3)
plaintiff was found to have a normal range of motion during subsequent medical visits on
September 26, 2013, November 22, 2013, and April 18, 2014, id. (citing R. at 602, 620, 561).
Further, Judge Hey stated that “the ALJ took Plaintiff’s fibromyalgia symptoms and physical
limitations into account in his hypothetical” to the vocational expert. Id. at 32.
Having reviewed the record, the Court agrees with Judge Hey’s analysis of this issue.
The parts of the record cited by plaintiff in support of her objection do not alter this analysis. 6
First, to the extent that those portions of the record document plaintiff’s diagnosis and reported
symptoms, the ALJ found plaintiff’s fibromyalgia to be a severe impairment and that plaintiff’s
“complaints of chronic pain, attributed to Fibromyalgia, are long-standing, documented well
prior to the alleged onset date and continuing through the most recent medical evidence.” R. at
16, 18. However, as discussed by Judge Hey, the ALJ determined that the objective medical
evidence did not support plaintiff’s subjective reports, and instead suggested “a stable and
controlled disorder rather than listing-level severity.” R. at 18. The Court agrees that this
determination is supported by substantial evidence, including Dr. Le’s examination from April
2013, which records less severe reported symptoms and physical limitations than plaintiff’s
physical therapy records from the same time, and plaintiff’s subsequent records from Dr.
Bwititi’s practice which record no limitations on range of motion. Further, as discussed above,
the ALJ adequately explained the weight he afforded Dr. Bwititi’s opinion. R. at 25.
For the foregoing reasons, the Court overrules plaintiff’s third objection.
R. at 48, 217 (plaintiff’s self-report of the severity of her fibromyalgia symptoms), 472
(plaintiff’s description of her symptoms as considered by Dr. Le), 501-02, 506-09, 577
(plaintiff’s treatment records from her physical therapy appointments in April and May of 2013),
625-29 (Dr. Bwititi’s opinion with respect to plaintiff’s limitations).
Plaintiff’s Fourth Objection
Plaintiff objects to Judge Hey’s conclusion that the ALJ’s RFC determination was
supported by substantial evidence. On this issue, plaintiff argues that the Judge Hey did not (1)
address the ALJ’s failure to properly consider plaintiff’s severe mental impairments, (2)
“respond to Plaintiff’s argument regarding the impact of bilateral carpal tunnel syndrome,” and
(3) “explain how Danner would be able to perform light work when she is only able to
stand/walk for approximately two (2) hours out of an 8-hour working day. Objections 5.
With respect to plaintiff’s mental health and her RFC, the ALJ stated the following:
[T]he available medical evidence of record does not suggest functional limitations
in excess of those [listed in the RFC]. The record documents chronic mental
health disorders, present well-prior to the amended alleged onset date and
controlled in the months leading up to that date with only conservative care, given
the notably moderate Global Assessment of Functioning scores of record and
stable medications and intensity of care. Despite her subjective complaints of
varied and quite significant symptoms during the period at issue, the objective
records suggests ongoing stability, with largely unchanging medications and
intensity of treatment, as well as overall normal mental status examination
findings, suggestive of no more that mild to moderate functional loss and quite
inconsistent with the claimant’s allegations of totally debilitating disorders.
R. at 23. The ALJ also noted the absence of hospitalization, intensive outpatient
treatment, or increase in mental health treatment during the relevant time period. Id.
In the R & R, Judge Hey concluded that the ALJ “thoroughly discussed Plaintiff’s mental
and physical impairments” and stated that while plaintiff received treatment for depressive and
anxiety disorders, plaintiff has “not pointed to any treatment records that establish any specific
functional limitations” stemming from these impairments. R & R 34. Further, Judge Hey
concluded that the ALJ had properly discussed and weighed the medical opinion evidence of Dr.
Schwartz and Dr. Banks with respect to plaintiff’s mental impairments. Id. This Court agrees
with Judge Hey’s conclusion, and rejects plaintiff’s first argument.
The Court also rejects plaintiff’s contention that Judge Hey failed to address plaintiff’s
argument that the ALJ did not consider plaintiff’s CTS in determining the RFC. While Judge
Hey did not address this argument in this portion of the R & R, as discussed with respect to
plaintiff’s first objection, Judge Hey concluded that the ALJ had properly considered plaintiff’s
CTS and that, regardless, plaintiff’s CTS was accounted for in the two jobs identified by the
vocational expert that required only occasional gross and/or fine manipulation. R & R 24 (citing
R. at 54).
With respect to plaintiff’s third argument, Judge Hey first noted that plaintiff relied on
the opinion of Dr. Bwititi pertaining to plaintiff’s ability to stand and walk during the workday,
and concluded as follows:
Plaintiff’s argument fails because the ALJ never found Plaintiff to be capable of a
“full or wide” range of light work, but rather, restricted her to a limited range of
light work and, alternatively, to sedentary work. Additionally, the ALJ’s RFC
assessment requires that Plaintiff be able to set or stand at will, which is
consistent with Dr. Le’s opinion that Plaintiff is able to stand for six hours and
walk for six hours in an eight-hour workday.
R & R 35 (citing R. at 29-30, 461). The Court agrees with Judge Hey’s analysis of this issue,
noting also that the ALJ adequately explained the weight he gave Dr. Bwititi’s opinion. R. at 25.
For all of the foregoing reasons, the Court overrules plaintiff’s fourth objection.
Plaintiff’s Fifth Objection
Plaintiff objects to Judge Hey’s conclusion that the ALJ properly weighed the opinion of
plaintiff’s treating physician, Dr. Bwititi. Objections 6. She argues that Judge Hey failed to
consider that Dr. Bwititi’s opinion was corroborated by Dr. Schwarz’s opinion and that “if the
ALJ had any doubt as to the basis of Dr. [Bwititi’s] opinion, he should have contacted Dr.
[Bwititi] regarding a clarification as to Danner’s RFC limitations.” Id. (citing R. at 481-83;
Colavito v. Apfel, 75 F. Supp. 2d 385, 389 (E.D. Pa. 1999).
As stated above, the ALJ gave Dr. Bwititi’s opinion little weight on the grounds that the
report appeared to rely “heavily” on plaintiff’s subjective reports, plaintiff provided no treatment
records from Dr. Bwititi’s practice after November 2013, the “available records d[id] not support
the extreme degree of limitation noted,” and that plaintiff’s subjective complaints of her
symptoms were not reliable. R. at 25 (citing R. at 279-400, 452-58, 490-513, 599-624). Judge
Hey concluded that the ALJ properly weighed the medical opinion evidence in this case. R & R
39. In so concluding, Judge Hey stated that the record contains no treatment records from Dr.
Bwititi after November 2013, “and therefore the doctor’s opinion rendered on June 9, 2014, is
not substantiated by any recent treatment records,” and Dr. Bwititi’s opinion that plaintiff’s
impairments would “frequently interfere with her work is inconsistent with Plaintiff’s
conservative treatment and reported activities, and is inconsistent with Dr. Banks’ evaluation of
plaintiff’s abilities, which the ALJ found to be consistent with the record as a whole. R & R 39
(citing R. at 25-26).
This Court agrees with Judge Hey’s conclusion that the ALJ’s decision to give Dr.
Bwititi’s opinion little weight was supported by substantial evidence and rejects plaintiff’s
arguments on this issue. First, with respect to the corroboration from Dr. Schwarz’s opinion, the
ALJ gave Dr. Schwarz’s opinion that plaintiff had marked limitations little weight because it was
inconsistent with the assessment of plaintiff’s treating mental health providers and with the
evidence in the record that showed “a more stable and controlled mental health presentation.” R.
at 26 (citing R. at 441-51, 481-89, 630-36); see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Plummer, 186 F.3d at 429. Second, while the ALJ should, “where the evidence is
insufficient, . . . attempt to secure additional evidence to determine whether a claimant is
disabled,” Colavito, 75 F. Supp. 2d at 389, the ALJ determined Dr. Bwititi’s opinion to be
“inconsistent” with and “unsupported” by the evidence in the record and determined, based on
the other evidence in the record, that plaintiff was not disabled. R. at 25, 29. Thus, the ALJ did
not err by not attempting to obtain further evidence. See 20 C.F.R. §§ 419.420(b), 404.1520(b)
(discussing and defining “insufficient” and “inconsistent” evidence).
For these reasons, the Court overrules plaintiff’s fifth objection.
Plaintiff’s Sixth Objection
Plaintiff’s sixth and final objection is that Judge Hey erred in concluding that the ALJ’s
determination regarding plaintiff’s credibility is supported by substantial evidence. Objections 7.
Plaintiff argues that Judge Hey improperly relied on plaintiff’s conservative treatment as
evidence that plaintiff’s limitations were not severe on the grounds that conservative treatment
“does not automatically indicate that Danner’s impairments are not disabling.” Id. (citing Shaw
v. Apfel, 221 F.3d 126, 134-35 (2d Cir. 2000)). Plaintiff also argues that Judge Hey improperly
“refer[red] to Danner’s daily activities to undermine her credibility” on the grounds that
plaintiff’s ability to complete “limited daily activities . . . are not [in] any way inconsistent with
Danner’s assertion that she cannot perform sustained work activities . . . .” Id. at 7-8 (citing
Rieder v. Apfel, 115 F. Supp. 2d 496, 504-05 (M.D. Pa. 2000)).
On this issue, the ALJ stated that he found plaintiff’s reports with respect to the severity
of her symptoms not credible because plaintiff described daily activities that are “fairly limited,”
but (1) her reports of the degree of limitation in her daily activities could not “objectively
verified with any reasonable degree of certainty” as the medical evidence in the record did not
support the limitations alleged and plaintiff did not produce sufficient evidence “such as
complete mental health treatment records,” to corroborate her self-reports, (2) even if her
activities were as limited as alleged, “it [would be] difficult to attribute that degree of limitation
to [her] medical conditions, as opposed to other reasons, in view of the relatively weak medical
evidence,” and (3) plaintiff’s admitted daily activities were inconsistent with her alleged
restrictions, “in that she has described daily activities that are not limited to the extent one would
expect, given the complaints of disabling symptoms and limitations.” R. at 24.
In concluding that the ALJ’s determination with respect to plaintiff’s credibility was
supported by substantial evidence, Judge Hey stated that plaintiff’s “conservative treatment for
her physical and mental impairments, together with her self-described activities, do not support
Plaintiff’s complaints of complete disability.” R & R 43. Continuing, Judge Hey noted that (1)
plaintiff’s treatment for her physical impairments was routine and conservative, “with
medication management and a very brief course of physical therapy,” (2) “the record contains
limited [mental health] therapy notes, no inpatient hospital psychiatric hospitalization or
intensive outpatient treatment during the relevant period, a consistent medication and therapy
regimen, and largely normal mental status examinations,” and (3) plaintiff admitted that she was
“able to parent her school-age children, attend to her personal care, prepare simple meals,
complete light household chores, shop and interact with her family without difficulty, manage
her financial affairs, and sustain a romantic relationship, all of which supports a conclusion that
her impairments are not work-preclusive.” R & R 43-44 (citing R. at 24, 39-49, 205-06, 218-19,
223). Further, Judge Hey determined that, despite finding plaintiff’s testimony not entirely
credible, the ALJ “credited plaintiff’s testimony to the extent it was consistent with the record”
and included the following restrictions in the RFC: “light and sedentary work with a sit/stand
option at will, . . . no more than simple, routine, repetitive work involving only simple workrelated decisions with no public contact and no more than occasional contact with coworkers and
supervisors . . . .” R & R 44 (citing R. at 21).
The Court rejects plaintiff’s arguments on this issue. First, as discussed above, the
treatment a claimant has received may be considered in evaluating the claimant’s symptoms, and
the ALJ considered not only the treatment plaintiff received but also the lack of medical
evidence supporting plaintiff’s allegations and the inconsistent reports of her daily activities. R.
at 24; see Sturgill, 2016 WL 4440345, at *10. Second, while the ability to perform household
tasks and engage in recreational activities does not mean that a claimant is able to work, see
Rieder, 115 F. Supp. 2d at 504, the ALJ did not rely solely on plaintiff’s alleged daily activities
to determine that she was capable of working. Rather, the ALJ considered the lack of evidence
that supported plaintiff’s alleged restrictions and that her reports of her daily activities were
inconsistent with the severity of her alleged symptoms to determine that “the information
provided by the claimant generally may not be entirely reliable.” R. at 24; see 20 C.F.R. §§ 404.
1529(a), 416.929(a) (“[S]tatements about [a claimant’s] pain or other symptom will not alone
establish that [the claimant is] disabled.”); see also Williams, 970 F.2d at 1186.
For these reasons, the Court overrules plaintiff’s sixth objection.
For the foregoing reasons, the R & R is approved and adopted, plaintiff’s Objections are
overruled, plaintiff’s Request for Review is denied, and judgment is entered in favor of
defendant, Nancy Berryhill, Acting Commissioner of Social Security Administration, and against
plaintiff, Angela Danner. An appropriate order follows.
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