Dietrich v. Saul

501 F.Supp.3d 283

Cynthia Marie DIETRICH, Plaintiff

v.Andrew M. SAUL, Commissioner of Social Security, Defendant

CIVIL ACTION NO. 3:19-CV-1904

United States District Court, M.D. Pennsylvania.

Filed November 19, 2020

ORDER

Christopher C. Conner, United States District Judge

AND NOW, this 19th day of November, 2020, upon consideration of the report (Doc. 17) of Magistrate Judge Gerald B. Cohn, recommending that we deny plaintiff Cynthia Marie Dietrich's appeal from the decision of the administrative law judge ("ALJ") denying her application for disability insurance benefits, and the court noting that Dietrich filed objections (Doc. 18) to the report, see FED. R. CIV. P. 72(b), and the Commissioner of Social Security filed a response (Doc. 19) thereto, and following de novo review of the contested portions of the report, see E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C. § 636(b)(1) ), and affording "reasoned consideration" to the uncontested portions, see id. (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) ), the court agreeing with Judge Cohn that the ALJ's decision "is supported by substantial evidence," 42 U.S.C. § 405(g), a standard of review that the Supreme Court of the United States recently reiterated "is not high," Biestek v. Berryhill, 587 U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019), and the court finding the report's analysis to be thorough, well-reasoned, and fully supported by the record, and finding Dietrich's objections to be without merit and squarely and correctly addressed by the report, it is hereby ORDERED that:

1. The report (Doc. 17) of Magistrate Judge Cohn is ADOPTED.

2. The decision of the Commissioner denying Dietrich's application for disability insurance benefits is AFFIRMED.

3. The Clerk of Court shall enter judgment in favor of the Commissioner and against Dietrich as set forth in paragraph 2.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Cynthia Marie Dietrich ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.

I. STANDARD OF REVIEW

To receive disability or supplemental security benefits under the Act, a claimant bears the burden to 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). The Act further provides that an individual:

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920 ; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an administrative law judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment ;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 ; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). 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.

In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008) ; Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). 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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). The Court's review is based on the record, and the Court will "meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met." Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).

The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g) ).

II. PROCEDURAL HISTORY

On January 26, 2017, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401 - 433, 1382 - 1383, with a last insured date of December 31, 2014,¹ and an amended alleged disability onset date of February 1, 2009. (Tr. 12, 67). Plaintiff alleged disability due to generalized anxiety disorder, contact dermatitis, hyperlipidemia, hypertension, and panic attacks. (Tr. 68). On October 12, 2018, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 9-27). Plaintiff sought review of the decision, which the Appeals Council denied on September 18, 2019, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-6).

On November 1, 2019, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On January 17, 2020, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On March 2, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 10 ("Pl. Br.")). On March 30, 2020, Defendant filed a brief in response. (Doc. 13 ("Def. Br.")). On April 9, 2020, Plaintiff filed a reply brief. (Doc. 14 (Reply Br.)).

III. ISSUES

On appeal, Plaintiff argues: (1) the ALJ erred in the allocation of weight to the medical opinions; (2) the ALJ failed to order a consultative examination or obtain interrogatories from physicians regarding her disability; (3) the ALJ erred in finding Plaintiff's obesity as non-severe; (4) the ALJ erred in the consistence analysis. Pl. Br. at 6-12.

IV. BACKGROUND

Plaintiff was born in April 1962 and thus is classified by the regulations as an individual closely approaching advanced age on the date of last insured. (Tr. 67); 20 C.F.R. §§ 404.1563(d), 416.963(d). Plaintiff completed two years of college and past relevant work includes work as a hand packer identified in the Dictionary of Occupational Titles (DOT) as number 920.587-018 with a SVP 2² and performed as medium and work as a re-reeler DOT 640.685-046 with a SVP 3 and customarily performed at the medium level in the DOT, but Plaintiff performed the job at a light to sedentary level. (Tr. 61, 190).

V. ANALYSIS

A. Allocation of Weight to Medical Opinions

Plaintiff argues "the RFC to perform simple, repetitive and routine tasks and to perform a low stress job defined as few workplace changes" is unsupported given the "ALJ rejected all opinion evidence in the record.... The ALJ's rejection of all the medical opinions created an evidentiary deficit." Pl. Br. at 6. However, Plaintiff also states the ALJ "assigned little weight to the opinions of State agency psychological consultant R. Williams, Ph.D. and treating physician S. Gorski, DO." Pl. Br. at 6. Assigning little weight to opinion evidence is not the same as rejecting all opinion evidence. See e.g., Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). Moreover, the ALJ gave "significant" weight to the May 2017 opinion of David Ferner wherein...