Raber v. Colvin
Filing
16
MEMORANDUM OPINION re 1 Complaint filed by Pamela Joy Raber.Signed by Magistrate Judge Martin C. Carlson on March 16, 2016. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAMELA JOY RABER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Defendant.
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Civil No. 1:15-CV-195
(Magistrate Judge Carlson)
MEMORANDUM OPINION
This is an action brought by Plaintiff Pamela Raber, an adult individual who
resides in the Middle District of Pennsylvania, under 42 U.S.C. §405(g) seeking
judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying Ms. Raber’s application for disability insurance benefits
under Title II of the Social Security Act. This matter has been assigned to the
undersigned United States Magistrate Judge on consent of the parties, pursuant to the
provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
(Doc. 14; Doc. 15). For the reasons expressed herein, the Commissioner’s decision
is affirmed, and Ms. Raber’s request for relief is denied.
I.
Background and Procedural History
A.
Medical history
On May 23, 2011, Ms. Raber filed an application for disability insurance
benefits. In her application, Ms. Raber alleged that the following conditions made
it impossible for her to work as of March 1, 2011: multiple heart attacks, heart
disease, type 2 diabetes. (Admin. Tr. 103). Ms. Raber, who has been diagnosed with
coronary artery disease and diabetes mellitus, alleges that these impairments result
in extreme symptoms that compromise her ability to work. Specifically, Ms. Raber
testified that, following the insertion of stents to clear blockages in her heart in March
and May 2011, she was unable to exert herself for fear of triggering further cardiac
complications. Ms. Raber’s cardiac symptoms are compounded by her diabetes
mellitus and its symptoms, which include lower extremity peripheral neuropathy and
diabetic retinopathy. During her hearing, Ms. Raber’s primary complaints were that
she is easily fatigued with exertion, experiences constant widespread musculoskeletal
pain, numbness in her lower extremities when sitting or standing for as little as fortyfive minutes, and has blurred vision when her sugars are high. She also alleges that
these limitations have greatly reduced her ability to engage in her typical activities
of daily living. For example, Ms. Raber testified that she cannot lift or carry
anything, but admitted that she does lift items from a grocery store shelf to place them
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in her shopping cart. She relies on the assistance of others to carry her groceries to
the car, and to unload the groceries from her car when she returns home. (Admin. Tr.
48). She reported that any attempt to lift or carry items triggers chest pain. (Admin.
Tr. 49). Ms. Raber also reported that, she needs to stop and rest at times before she
completes a particular task due to fatigue. (Admin. Tr. 49).
During her hearing, Ms. Raber testified that her cardiac health continues to
deteriorate. She reported that her doctors have discovered five more blockages in her
heart that may require additional surgeries, (Admin. Tr. 49), however the record
seems to reflect no evidence corroborating the existence of additional blockages.
Although Ms. Raber testified that she sees a cardiologist, Abigail Shields, for regular
check-ups, the record in this case reveals that Ms. Shields is simply a certified
registered nurse practitioner. Further, the most recent examination with CRNP
Shields available in the record before the ALJ hearing took place on June 12, 2011,
did not confirm Ms. Raber’s claims concerning the extent or severity of her
impairments. During this examination CRNP Shields noted that since Ms. Raber’s
May 2011 stent placement, she was doing well. Ms. Raber denied shortness of breath
and chest pain, and reported that her normal daily activities include cleaning and
helping to care for her grandchildren. Ms. Raber also told CRNP Shields that she was
working part time at a home health agency. Further, while Ms. Raber did complain
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of some medication side-effects including fatigue and muscle aches, CRNP Shields
adjusted Ms. Raber’s medications to minimize her side-effects and there are no
treatment notes that comment on whether these adjustments had the desired effect.
The medical records also reflect that Ms. Raber’s diabetes care is followed by
her primary care physician Dr. Lori Masteller, and that Ms. Raber had seen an
endocrinologist in the past, but was discharged from care in December 2009. The
most recent treatment records from Dr. Masteller indicated that Ms. Raber’s sugars
were high, and that she was positive for diabetic retinopathy. (Admin. Tr. 427). Labs
dated August 2011, revealed that although Ms. Raber’s sugars were up, her “overall
A1c was excellent.” (Admin. Tr. 433). On that date, her estimated average glucose
was 157, and her A1c level was 7.1. (Admin. Tr. 440).
During the evaluation of her claims at the initial level of administrative review,
Ms. Raber was evaluated by nontreating medical source, David Yang Go, (“Dr. Yang
Go”). (Admin. Tr. 448-450). Dr. Yang Go noted that Ms. Raber was a noncompliant
diabetic and smoker who had multiple risk factors for recurrence of myocardial
infarction due to her treatment noncompliance. Id. Dr. Yang Go also observed that
although Ms. Raber complains of muscle pain, it was not noted during examination.
Id. Dr. Yang Go assessed coronary artery disease status-post two stents with acute
coronary syndrome and chronic angina, diabetes (non-compliant and in poor control),
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tobacco use, and hypercholesterolemia. Id. In his accompanying medical source
statement, Dr. Yang Go opined that Ms. Raber could: lift or carry up to ten pounds;
stand or walk for four hours with alternating sitting and standing; sit without
limitation; push or pull objects within the weights prescribed for lifting and carrying;
occasionally bend, kneel, stoop, crouch, and balance; and never climb. (Admin. Tr.
451-52). Nonexamining State agency medical consultant Mark Bohn (“Dr. Bohn”)
also assessed Ms. Raber’s physical residual functional capacity. Dr. Bohn assessed
that Ms. Raber could: occasionally lift or carry up to twenty pounds; frequently lift
or carry up to ten pounds; stand and/or walk (with normal breaks) up to six hours per
eight-hour workday; sit (with normal breaks) up to six hours per eight-hour workday;
push or pull (e.g., operate hand or foot controls) within the same weight limits
prescribed for her ability to lift and carry; occasionally climb ramps or stairs, balance,
stoop, kneel, crouch, crawl; never climb ladders, ropes, or scaffolds; and work in
environments free from concentrated exposure to extreme cold, extreme heat,
wetness, humidity, fumes, odors, gasses, poor ventilation, and hazards. (Admin. Tr.
62-64).
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B.
Administrative procedural history
Ms. Raber’s claim was denied at the initial level of administrative review on
October 7, 2011. Ms. Raber then requested to have her claim evaluated by an
Administrative Law Judge during a hearing.
After the initial denied of her claims, but shortly before her administrative
hearing, Ms. Raber’s treating neurologist, Uzzal Roy (“Dr. Roy”), wrote a twosentence letter in which Dr. Roy opined that Ms. Raber could do “only sedentary
work due to her medical condition.” (Admin. Tr. 462). Ms. Raber testified that she
started seeing Dr. Roy three months before her February 2013 hearing. (Admin. Tr.
44). No examination notes from Dr. Roy were included in the record before the ALJ.
Dr. Roy did, however, submit an EMG interpreted by Dr. Edwin Aquino. (Admin.
Tr. 465).
On February 20, 2011, Ms. Raber appeared with her attorney at an
administrative hearing before ALJ Michele Wolfe. Impartial vocational expert Karen
Kane (“VE Kane”) also appeared and testified during the hearing. On April 12, 2013,
the ALJ denied Ms. Raber’s claims in a written decision after she reached the
conclusion that Ms. Raber retained the ability to engage in other work that exists in
significant numbers in the national economy. Ms. Raber sought review of the ALJ’s
decision from the Appeals Council of the Office of Disability Adjudication and
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Review. Her request for review was denied on December 15, 2014, making the ALJ’s
decision the Commissioner’s final decision subject to judicial review by this Court.
Ms. Raber appealed the Commissioner’s final decision by filing the complaint
in this action on January 27, 2015. (Doc. 1). In her complaint, Ms. Raber alleges that
the ALJ’s decision is erroneous and contrary to the settled law, and requests that this
Court reverse the decision of the Commissioner and enter an order awarding benefits.
(Doc. 1, at 5). The Commissioner filed her answer to Ms. Raber’s complaint on April
10, 2015. (Doc. 9). In her answer, the Commissioner responds that the decision
holding that Ms. Raber is not entitled to benefits is correct and in accordance with the
law and regulations, and that the ALJ’s findings of fact are supported by substantial
evidence. (Doc. 9 ¶16). Together with her answer, the Commissioner submitted a
certified copy of the administrative transcript. (Doc. 10). This matter has been fully
briefed by the parties and is now ripe for decision. (Doc. 11; Doc. 12).
II.
Legal Standards
A.
Substantial Evidence Review – The Role of This Court
When reviewing the Commissioner’s final decision denying a Social Security
claimant’s application for benefits, this Court’s review is limited to the question of
whether the findings of the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. § 405(g); Johnson v. Comm’r of Soc. Sec., 529
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F.3d 198, 200(3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536(M.D.Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence, but
rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but more than a mere scintilla.
Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not
substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a
conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.
1993). But in an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]
from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is
supported by substantial evidence the court must scrutinize the record as a whole.”
Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this
Court, therefore, is not whether Ms. Raber is disabled, but whether the
Commissioner’s finding that she is not disabled is supported by substantial evidence
and was reached based upon a correct application of the relevant law. See Arnold v.
Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)(“[I]t
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has been held that an ALJ’s errors of law denote a lack of substantial
evidence.”)(alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914
(W.D.Pa. 1981)(“The Secretary’s determination as to the status of a claim requires the
correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d
675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary);
Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . .
.”).
B.
Initial Burdens of Proof , Persuasion and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an inability to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); see also 20
C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe
physical or mental impairment that makes it impossible to do his or her previous work
or any other substantial gainful activity that exists in the national economy. 42 U.S.C.
§423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of the
Social Security Act, a claimant must also show that he or she contributed to the
9
insurance program, is under retirement age, and became disabled prior to the date on
which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a fivestep sequential evaluation process. 20 C.F.R. §404.1520(a). Under this process, the
ALJ must sequentially determine: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment meets or equals a listed impairment; (4) whether the claimant
is able to do his or her past relevant work; and (5) whether the claimant is able to do
any other work, considering his or her age, education, work experience and residual
functional capacity (“RFC”). 20 C.F.R. §404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC. RFC
is defined as “that which an individual is still able to do despite the limitations caused
by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d
Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1). In
making this assessment, the ALJ considers all of the claimant’s medically
determinable impairments, including any non-severe impairments identified by the
ALJ at step two of his or her analysis. 20 C.F.R. §404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
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him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5);
20 C.F.R. §404.1512; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner
at step five to show that jobs exist in significant number in the national economy that
the claimant could perform that are consistent with the claimant’s age, education,
work experience and RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.
The ALJ’s disability determination must also meet certain basic procedural and
substantive requisites.
Most significant among these legal benchmarks is a
requirement that the ALJ adequately explain the legal and factual basis for this
disability determination. Thus, in order to facilitate review of the decision under the
substantial evidence standard, the ALJ's decision must be accompanied by "a clear
and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must
indicate which evidence was accepted, which evidence was rejected, and the reasons
for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate
in his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Com. of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
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C.
Guidelines for the Assessment of the Credibility of a Claimant’s
Allegations about Her Symptoms and Limitations
The regulations describe a two-step process 20 C.F.R. §404.1529. First, the
ALJ must consider whether the claimant has met his or her burden of showing that
he or she has a medically determinable physical or mental impairment that could
reasonably be expected to produce the symptoms alleged. Once an underlying
impairment has been shown, the ALJ reaches the second step of this process. At the
second step the ALJ must “evaluate the intensity, persistence, and limiting effects of
the individual’s symptoms to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities.” SSR 96-7p, 1996 WL 374186 at *2.
“Whenever the individual’s statements abut the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective medical
evidence, the adjudicator must make a finding on the credibility of the individual’s
statements based on the consideration of the entire case record.” Id. In doing so, the
ALJ must consider the following seven factors outlined in 20 C.F.R. §404.1529(c)(3):
(1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity
of the claimant’s pain or symptoms; (3) precipitating or aggravating factors; (4) the
type, dosage, effectiveness, and side effects of any medication the claimant takes or
has taken to alleviate pain or other symptoms; (5) treatment, other than medication,
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the claimant receives or has received for relief of pain or other symptoms; (6) any
measures the claimant uses or has used to relieve pain or other symptoms; and (7) any
other factors concerning the claimant’s functional limitations and restrictions due to
pain or other symptoms that are brought to the ALJ’s attention.
20 C.F.R.
404.1529(c)(3); SSR 96-7p, 1996 WL 374186 at*3.
In making a finding about the credibility of a claimant’s statements, the ALJ
need not totally accept or totally reject the individual’s statements. SSR 96-7p, 1996
WL 374186. The ALJ may find all, some, or none of the claimant’s allegations to be
credible, or may find a claimant’s statements about the extent of his or her functional
limitations to be credible but not to the degree alleged. Id. Further, an ALJ’s
findings based on the credibility of a claimant are to be accorded great weight and
deference, since an ALJ is charged with the duty of observing a witness’ demeanor
and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9(E.D. Pa.
Mar. 7, 2000)(quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531(6th Cir.
1997)).
D.
Legal Benchmarks for the ALJ’s Assessment of Medical Opinion
Evidence
The Commissioner’s regulations define medical opinions as “statements from
physicians and psychologists or other acceptable medical sources that reflect
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judgments about the nature and severity of [a claimant’s] impairment(s), including [a
claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do despite
impairments(s), and [a claimant’s] physical or mental restrictions.
20 C.F.R.
§404.1527(a)(2).1 Regardless of its source, the ALJ is required to evaluate every
medical opinion received. 20 C.F.R. §404.1527(c).
In deciding what weight to accord to competing medical opinions, the ALJ is
guided by factors outlined in 20 C.F.R. §404.1527(c). “The regulations provide
progressively more rigorous tests for weighing opinions as the ties between the
source of the opinion and the individual become weaker.” SSR 96-6p, 1996 WL
374180 at *2. Treating sources have the closest ties to the claimant, and, therefore,
their
opinions
generally
entitled
to
more
weight.
See
20
C.F.R.
§404.1527(c)(2)(“Generally, we give more weight to opinions from your treating
1
Medical source opinions on issues that are dispositive of a case, e.g., whether
a claimant is disabled, are reserved to the Commissioner and do not constitute
medical opinions defined by 20 C.F.R. §404.1527(a)(2). 20 C.F.R. §404.1527(d).
Furthermore, where a medical source opines that an individual is limited to
“sedentary” work, or makes similar statements that appear to use terms set out in the
Commissioner’s regulations, the adjudicator must not assume that the medical source
using the terms “sedentary” and “light” is aware of the Commissioner’s definitions.
SSR 96-5p, 1996 WL 374183 at *5. Such opinions must never be ignored, and must
be considered based on the applicable factors in 20 C.F.R. §404.1527(c). SSR 96-5p,
1996 WL 374183 at *3. However, medical opinions on case dispositive issues like
these are never entitled to controlling weight under 20 C.F.R. §404.1527(c)(2). See
20 C.F.R. §404.1527(d)(3); SSR 96-5p, 1996 WL 374183 at *2.
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sources...”); 20 C.F.R. §404.1502 (defining treating source).
Under some
circumstances, the medical opinion of a treating source may even be entitled to
controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL
374188 (explaining that controlling weight may be given to a treating source’s
medical opinion only where it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques, and it is not inconsistent with the other substantial
evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the
Commissioner’s regulations direct the ALJ to consider the following factors, where
applicable, in deciding the weight given to any non-controlling medical opinions:
length of the treatment relationship and frequency of examination; nature and extent
of the treatment relationship; the extent to which the source presented relevant
evidence to support his or her medical opinion, and the extent to which the basis for
the source’s conclusions were explained; the extent to which the source’s opinion is
consistent with the record as a whole; whether the source is a specialist; and, any
other factors brought to the ALJ’s attention. 20 C.F.R. §404.1527(c).
At the initial level of administrative review, State agency medical and
psychological consultants may act as adjudicators. See SSR 96-5p, 1996 WL 374183
at *4. As such, they do not express opinions; they make findings of fact that become
15
part of the determination. Id. However, 20 C.F.R. §404.1527(e) provides that at the
ALJ and Appeals Council levels of the administrative review process, findings by
nonexamining State agency medical and psychological consultants should be
evaluated as medical opinion evidence. As such, ALJs must consider these opinions
as expert opinion evidence by nonexamining physicians and psychologists and must
address these opinions in their decisions. SSR 96-5p, 1996 WL 374183 at *6.
Opinions by State agency consultants can be given weight “only insofar as they are
supported by evidence in the case record.” SSR 96-6p, 1996 WL 374180 at *2. In
appropriate circumstances, opinions from nonexamining State agency medical or
psychological consultants may be entitled to greater weight than the opinions of
treating or examining sources. Id. at *3.
Furthermore, as discussed above, it is beyond dispute that, in a social security
disability case, the ALJ’s decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle
applies with particular force to the opinion of a treating physician. See 20 C.F.R.
§404.1527(c)(2)(“We will always give good reasons in our notice of determination
or decision for the weight we give your treating source’s opinion.”). “Where a
conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject
evidence for no reason or the wrong reason.’” Plummer v. Apfel, 186 F.3d 422, 429
16
(3d Cir. 1999)(quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000).
III.
Discussion
Ms. Raber’s arguments, in large part, focus on the ALJ’s discussion of her
lower extremity peripheral neuropathy, diabetic retinopathy, and cardiac condition.
She contends that the ALJ improperly discounted her statements concerning the
intensity of her symptoms, and the opinions of physicians that accurately accounted
for the degree of severity of her symptoms, and as a result erred at several steps of the
sequential evaluation process, including steps two, three, and five.
A.
The ALJ’s Decision Denying Ms. Raber’s Claims
In her April 2013 decision denying Ms. Raber’s claims, the ALJ found that Ms.
Raber met the insured status requirement of Title II of the Social Security Act through
September 30, 2013 (Admin. Tr. 15), and assessed Ms. Raber’s claim at each step of
the five-step sequential evaluation process. At step one the ALJ found that Ms. Raber
had not engaged in substantial gainful activity since March 1, 2011. (Admin. Tr. 15).
At step two the ALJ found that Ms. Raber had the medically determinable severe
impairments of coronary artery disease status post stenting, and diabetes mellitus.
(Admin. Tr. 16). The ALJ also found that Ms. Raber’s alleged impairments of
hypercholesterolemia, hypertension, and sensorimotor polyneuropathy were
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medically determinable but non-severe. (Admin. Tr. 16). At step three the ALJ
found that Ms. Raber did not have an impairment or combination of impairments that
met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Admin. Tr. 16).
Between steps three and four, the ALJ assessed Ms. Raber’s RFC. After
considering the record as a whole, weighing the medical opinion evidence of record,
and assessing the credibility of Ms. Raber’s subjective testimony, the ALJ concluded
that Ms. Raber had the RFC to engage in light work as defined in 20 C.F.R. §
404.1567(b) except that Ms. Raber:
could occasionally balance, stoop, crouch crawl, kneel, climb, but never
on ladders, ropes or scaffolds; must avoid concentrated exposure to
temperature extremes of cold/heat, wetness, humidity, fumes, odors,
dusts, gases, and poor ventilation; and must avoid hazards such as
moving machinery and unprotected heights.
(Admin Tr. 17).
At steps four and five of the sequential evaluation process, the ALJ relied on
hearing testimony from VE Kane. VE Kane testified that Ms. Raber’s past relevant
work includes jobs as a certified nursing assistant and personal care assistant.
(Admin. Tr. 51). VE Kane testified that physical demands of both positions exceed
the RFC assessed by the ALJ. (Admin. Tr. 52). Based on this testimony, the ALJ
found that Ms. Raber would be unable to engage in any of her past relevant work at
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step four of the sequential evaluation process. (Admin. Tr. 21). VE Kane also
testified that, based on the ALJ’s findings of fact with respect to Ms. Raber’s age
(closely approaching advanced), education (high school), past relevant work
experience, and RFC, Ms. Raber could engage in the following representative
occupations: office helper (DOT #239.567-010), ticket sales (DOT #211.467-030),
information clerk (DOT #237.367-018), hotel desk clerk (DOT #238.367-038), and
customer service representative (DOT #238.367-038). (Admin. Tr. 52). VE Kane’s
testimony also reveals that the sum of number of jobs in these occupations that exist
in the regional economy is 2,300. (Admin. Tr. 52). Based on VE Kane’s testimony,
the ALJ concluded that Ms. Raber was not disabled at any point during the relevant
period from March 1, 2011, through April 12, 2013, because she could engage in
other work that existed in significant numbers in the national economy. (Admin. Tr.
22-23).
B.
The ALJ’s Evaluation of Ms. Raber’s Credibility is Supported by
Substantial Evidence
Ms. Raber argues that the ALJ’s RFC assessment is not supported by
substantial evidence because the ALJ failed to explain her rationale for finding that
Ms. Raber’s testimony was “not entirely credible.” (Doc. 11, at 7). She argues that
the ALJ offered no plausible reasons for rejecting her testimony. (Doc. 11, at 11).
19
The Commissioner contends that the ALJ adequately explained her credibility
assessment. (Doc. 12, at 9-14).
Ms. Raber’s objections to the sufficiency of the ALJ’s credibility assessment
center on the ALJ’s treatment of her testimony about the symptoms of her diabetes
and its underlying complications (retinopathy and peripheral neuropathy), and her
coronary artery disease. The ALJ offered the following explanation when she
discounted Ms. Raber’s testimony:
The claimant testified at the hearing and reported what she believed was
symptomatology and medical conditions that precluded work activity.
However, the medical evidence of record does not support a finding of
disability. Cardiac evidence indicates that the claimant began
experiencing chest discomfort in March of 2011. She was subsequently
diagnosed with coronary artery disease. Thereafter, the claimant
underwent two heart procedures to open blockages. Stents were also
inserted to maintain blood flow. These procedures occurred in March
and May 2011. After the second, the claimant reported that she was
doing well and participating in multiple normal activities of daily living
including cooking, cleaning, and caring for her grandchildren. The
medical records documenting the success of the procedures undermine
the claimant’s allegation of disability. The lack of current medical
records for cardiac care, do the same. More specifically, the claimant’s
medical records of evidence substantiating ongoing heart care cease in
the summer of 2011. From that time to the present, there are no records
supporting heart impairment in any way. For these reasons, the
undersigned finds that the claimant’s coronary artery disease, status post
stenting, does not precluding the claimant from engaging in work
activities.
The claimant also alleges that her diabetes is disabling. The medical
records of evidence do not support this conclusion. The claimant
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received a diagnosis of diabetes mellitus as early as 2009. When she
began to take insulin, the claimant experienced weight gain. Because of
the weight gain, the claimant stopped taking her diabetic medication.
Afterward, the claimant has consistently been tested with elevated blood
sugar levels. The medical records of evidence suggest that the claimant
will suffer from increasing symptomatology of the disease, if she does
not actively participate in her care. Namely, to improve, the claimant
must consistently take her insulin. The medical records of evidence do
not establish the claimant’s willingness to comply. Nevertheless, even
with a high blood sugar level, no medical records of evidence support
the finding that the claimant is unable to engage in work activities.
(Admin. Tr. 20-21). Ms. Raber specifically alleges that the ALJ failed to credit her
testimony about the severity of her lower extremity polyneuropathy and visual
impairment due to diabetic retinopathy, and failed to properly address the limitations
resulting from her cardiac condition. After reviewing the administrative record and
the ALJ’s decision, we agree with the Commissioner that the ALJ’s credibility
assessment is sufficient.
With respect to Ms. Raber’s allegations that the ALJ failed to credit her
testimony concerning the severity and limiting effects of her lower extremity
polyneuropathy, the ALJ noted at step two that although objective testing confirmed
the existence of a sensory deficit, physical examination findings failed to demonstrate
the full extent of limitation alleged. (Admin. Tr. 16). The ALJ noted that Ms.
Raber’s deep tendon reflexes and adductor hallucis proprioception were intact, and
Ms. Raber did not demonstrate any abnormal sensory response during a physical
21
examination. Id. The ALJ also noted that Dr. Yang Go found that Ms. Raber did not
exhibit any physical abnormalities on examination, (Admin. Tr. 19-20), and that Dr.
Bohn assessed that Ms. Raber sit for six hours per day, or stand/walk for six hours per
day, (Admin. Tr. 20). This evidence is a sufficient basis to discount Ms. Raber’s
subjective testimony that her polyneuropathy resulted in a significant erosion in her
ability to sit, stand, or walk for prolonged periods.
With respect to Ms. Raber’s diabetic retinopathy, the record reflects that Ms.
Raber testified that this symptom affects her ability to see the television on a
intermittent basis. Ms. Raber reported that her vision blurs when her sugar is “flared
up” but could not identify how frequently this occurred. (Admin. Tr. 47). She simply
reported that “it changes.” Id. Although treatment records from Dr. Masteller reflect
that Ms. Raber had an eye exam and was positive for diabetic retinopathy, (Admin.
Tr. 427), the record does not include records from the actual eye exam indicating the
extent or severity of Ms. Raber’s visual impairment. Further, no medical source
opinion suggests that Ms. Raber has any visual impairment. Because the record is
devoid of any clear objective or subjective evidence regarding the extent to which
Ms. Raber’s retinopathy actually affects her vision, we find that the ALJ’s failure to
discuss it here is harmless. “No principle of administrative law ‘require[s] that we
convert judicial review of agency action into a ping-pong game’ in search of the
22
perfect decision.” Coy v. Astrue, 2009 WL 2043941 at *14 (W.D.Pa. Jul. 8,
2009)(quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969)). To
remand for further consideration based on the evidence before us would be an idle
and useless formality.
With respect to Ms. Raber’s claims that the ALJ improperly discounted Ms.
Raber’s testimony that her cardiac condition has resulted in fatigue upon exertion, we
similarly find that the ALJ’s assessment is supported by substantial evidence.
Although Ms. Raber’s testimony does support the fact that following the stent
procedure she has experienced fatigue on physical exertion, and that this fatigue has
had an impact on the way she accomplishes daily activities, the record also
establishes that this fatigue was attributed to the side-effects of Ms. Raber’s
medications. In discounting this testimony, the ALJ noted that the available records
do not reflect any ongoing cardiac care after Ms. Raber’s medications were adjusted
during a July 2011 examination with CRNP Shields. During the hearing in February
2013, it was noted that the records before the ALJ were only current to September
2011 – the date of Ms. Raber’s consultative examination. (Admin. Tr. 55). The
record was held open to allow Ms. Raber to submit additional evidence, but none was
submitted. Furthermore, Dr. Yang Go noted that, although Ms. Raber complained of
23
widespread musculoskeletal pain and weakness, there was no pain or weakness noted
on active examination. (Admin. Tr. 449-50).
Thus, Ms. Raber did not supplement the record on this important issue despite
being offered an opportunity to do so. Accordingly, in the absence of further
evidence, for the foregoing reasons we find that the ALJ’s assessment of Ms. Raber’s
credibility is supported by substantial evidence.
C.
The ALJ’s Evaluation of the Medical Opinion Evidence is In
Accordance with the Regulations, and is Supported by Substantial
Evidence
In her decision, the ALJ accorded “little” weight to Dr. Yang Go’s medical
source statement. The ALJ explained that:
The opinion of Dr. Yang Go which essentially assigns the claimant a
sedentary residual functional capacity with restrictions, is given little
weight. This opinion is inconsistent with the claimant’s longitudinal
clinical treatment history and with her activities of daily living. Rather
appears to rely more on her subjective complaints at the evaluation, that
were musculoskeletal complaints rather than her exam and laboratory
findings that were essentially normal including normal heart sounds and
ejection fraction post stenting. Furthermore the undersigned notes that
her neuromuscular, extremities and back examination findings were
within normal limits.
(Admin. Tr. 19). The ALJ accorded no weight to Dr. Roy’s February 2013 letter.
She explained that:
On February 8, 2013, Uzzal Roy, MD provided a letter indicating that
the claimant can only do sedentary work because of her medical
24
condition (Exhibit 8F), after three months of treating the claimant
(Hearing Testimony). Assuming that this conclusory statement relates
to neuropathic limitations, no weight is given to this opinion, as it is not
substantiated by other objective medical evidence. More specifically,
even though Dr. Roy cited neurological testing that found lower
extremity neuropathy consistent with her diabetic condition, other
examinations revealed no range of motion limitations and exertional
limitations that were inconsistent with the sedentary limitation. There
is simple no objective medical evidence in the record that supports this
conclusion. Additionally, the nonspecific assertion of disability, with
no citation as to the medical basis for this finding, is problematic.
Assuming that this conclusory statement relates to the claimant’s heart
condition, the objective medical evidence and absence of ongoing
cardiac treatment belies this conclusion.
(Admin. Tr. 20). The ALJ accorded “great” weight to Bohn’s October 2011 RFC
assessment because the doctor’s opinion that Ms. Raber was limited to a range of
light work was “consistent with the claimant’s longitudinal clinical treatment history
and the claimant’s activities of daily living.” (Admin. Tr. 20).
Ms. Raber argues that the ALJ gave insufficient weight to the medical opinions
by Doctors Yang Go and Roy, and too much weight to the RFC assessment by Dr.
Bohn. Her primary objection to the ALJ’s treatment of this evidence is that the ALJ
“offered no plausible reasons” for the weight accorded to these opinion. (Doc. 11,
at 11). We construe this statement as arguments that the ALJ failed to provide
sufficient explanation for his findings, and that the ALJ failed to cite a proper basis
for discounting the opinions of Dr. Yang Go and Dr. Roy.
25
At the outset, we note that the medical opinions in this case conflict with oneanother. Ms. Raber accurately characterized the opinions of Doctors Roy and Yang
Go as indicating that she would be capable of no more than sedentary work, while Dr.
Bohn opined that Ms. Raber could engage in light work. As such, the ALJ was not
only entitled, but required to choose between them. In such circumstances, the Courts
have imposed upon the ALJ some responsibility in explaining his or her choice. This
responsibility, however, is merely to provide “an adequate basis so that the reviewing
court can determine whether the administrative decision is based on substantial
evidence.” Cotter v. Harris, 642 F.2d at 706. In this case, we find that the ALJ has
met this burden, and has provided sufficient explanation of her findings to permit this
Court to assess whether the ALJ’s findings were based on a proper application of the
controlling legal standards, and were based on substantial evidence.
Next we turn our attention to the issue of whether the ALJ’s explanation
reveals that her findings were based on a proper application of the law, and are
supported by substantial evidence. In this case we conclude that they were.
When no opinion of record is entitled to controlling weight, all of the medical
opinions are evaluated and weighed under the same standard. This standard accounts
for numerous factors, including the extent to which a source presented relevant
evidence to support the opinion, and the extent to which it is consistent with the
26
record as a whole – including the opining source’s own examination records, or when
a medical opinion is based on unsubstantiated subjective statements by the claimant.
20 C.F.R. §§ 404.1527(c)(3), 404.1527(c)(4); see e.g. Hall v. Comm’r of Soc. Sec.,
218 F.App’x 212, 215 (3d Cir. 2007)(affirming an ALJ’s decision to give little weight
to a treating physician’s reports where the ALJ specifically noted “internal
inconsistencies in the various reports and treatment notes” from the opining source);
Morris v. Barnhart, 78 F.App’x 820, 824-25 (3d Cir. 2003)(“An ALJ may discredit
a physician’s opinion on disability that was premised largely on the claimant’s own
accounts of her symptoms and limitations when the claimant’s complaints are
properly discounted.”).
The ALJ explained that Dr. Yang Go’s medical source statement was both
internally inconsistent, and appeared to rely on Ms. Raber’s subjective statements
rather than his own examination findings. This is a permissible basis to discount a
medical source statement, and is supported by substantial evidence in this case. Dr.
Yang Go’s examination report reflects that although Ms. Raber complained of
widespread musculoskeletal pain of such severity that it affected her range of motion,
and resulted in easy fatigability, and muscle weakness. However, on examination her
extremities were normal, her range of motion was normal in all areas tested, she had
full strength, and intact reflexes. Dr. Yang also noted that Ms. Raber’s most recent
27
ECG was within normal limits. Further, contemporaneous treatment records from
CRNP Shields reflect that Ms. Raber expressly denied exertional chest pain, and
includes no report of easy fatigability. (Admin. Tr. 428). Ms. Raber’s muscle aches
were believed to be the result of her medications, which were adjusted in July 2011
in an attempt to reduce her medication-induced muscle aches.
The ALJ discounted Dr. Roy’s letter because the doctor did not provide
sufficient evidence or detail to support his opinion. The doctor did not make any
attempt to explain the basis for his assessment that Ms. Raber was limited to
sedentary work, or provide any evidence documenting Ms. Raber’s symptoms or
limitations in a clinical setting. Although the doctor appeared to append the result of
an October 2012 nerve conduction study, the study itself provides little insight into
the severity of Ms. Raber’s symptoms. 20 C.F.R. §404.1527(c)(3) provides that “the
more a source presents relevant evidence to support an opinion, . . . the more weight
we will give that opinion.” As such, we find that the ALJ’s decision to discount Dr.
Roy’s 2013 letter is in accordance with the regulations, and is supported by
substantial evidence.
Last, the ALJ explained that she credited Dr. Bohn’s RFC assessment because
it was more consistent with the benign findings on recent examination, including Dr.
Yang Go’s remarks that Ms. Raber was able to get up and ambulate normally, and his
28
observation that Ms. Raber had normal reflexes. This assessment is supported by the
record. Further, the ALJ accurately noted that the limited records available that relate
to the relevant period simply do not substantiate the degree of symptom severity
alleged. SSR 96-6p provides that the opinions of State agency consultants like Dr.
Bohn are given weight insofar as they are supported by and consistent with the
evidence in the case record. 1996 WL 374180 at *2. As such, we find that the ALJ
cited a valid basis to credit this opinion, and that her findings of fact regarding the
consistency of this opinion with the record as a whole are supported by substantial
evidence.2
2
Furthermore, to the extent that Ms. Raber also makes passing allegations of
error with respect to the ALJ’s findings at steps two and three of the sequential
evaluation process, we note that these allegations are premised on her claim that the
ALJ erred in his evaluation of Ms. Raber’s testimony and the medical opinion
evidence of record. Since we have concluded that these claims were unfounded, and
substantial evidence supported the ALJ’s determinations regarding credibility and
weight to be afforded to conflicting medical evidence, we need no further address
these passing complaints.
29
IV.
Conclusion
Based on the foregoing, the Commissioner’s decision is affirmed, and Ms.
Raber’s requests for relief is denied.
An appropriate order shall follow.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: March 16, 2016
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