Warfel v. Saul

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. Paige Warfel (“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

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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 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.,

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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 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Biestek v. Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). 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).

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 November 13, 2017, Plaintiff filed an application for supplemental security income under Title XVI and for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), with a last insured date (“DLI”) of June 30, 2020, ^[1] and an alleged disability onset date of June 16, 2017. (Tr. 15, 61). Plaintiff alleged disability due to: (1) depression; (2) anxiety; (3) panic disorder; (4) borderline personality disorder; (5) Grave's disease; (6) obstructive sleep

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apnea, and; (7) pituitary adenoma. (Tr. 62). On June 27, 2019, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 12-31). Plaintiff sought review of the decision, which the Appeals Council denied on May 28, 2020, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-6).

On June 26, 2020, 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 14, 2021, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 11, 12). On March 1, 2021, Plaintiff filed a brief in support of the appeal. (Doc. 14 (“Pl. Br.”)). On March 26, 2021, Defendant filed a brief in response. (Doc. 15 (“Def. Br.”)). On April 5, 2021, Plaintiff filed a reply. (Doc. 16 (Reply)).

III. ISSUES

On appeal, Plaintiff argues the ALJ erred in: (1) failing to allocate controlling weight to the treating physician, Dr. Gregory Bredow, M.D.; (2) the conclusions regarding consistency of Plaintiff's allegations with the evidence of record, and; (3) the RFC finding regarding non-exertional impairments. Pl. Br. at 7-15.

IV. BACKGROUND

Plaintiff is classified by the regulations as a younger individual through the date of the July 2019 ALJ decision. (Tr. 25, 61); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed the tenth grade (Tr. 193) and has past relevant work as a receptionist, identified in the dictionary of occupational titles (“DOT”) by 237.367-038, which is sedentary, with an SVP of 4^[2] and a dispatcher, identified in the DOT by 379.362-010, which is sedentary, with an SVP of 4. (Tr. 55).

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V. MEDICAL OPINIONS^[3]

1. Treating Medical Opinion, March 12, 2019: Gregory Bredow, M.D.

In a March 2019 form, Dr. Bredow noted Plaintiff's diagnosis included generalized anxiety disorder, major depression, and rule out diagnosis of post-traumatic stress disorder and obsessive-compulsive disorder. (Tr. 930). Plaintiff's treatment included medication management and psychotherapy and Dr. Bredow opined Plaintiff's response to treatment has been relatively unchanged without major improvement. (T. 930). Dr. Bredow indicated Plaintiff experiences “electric shock sensations” as a side-effect from her medication. (Tr. 930). According to Dr. Bredow, Plaintiff demonstrated frequent high anxiety, hypervigilance, is easily startled, and often seeing reassurance and approval. (Tr. 931). In a section titled “mental abilities and aptitudes needed to do even unskilled work, ” Dr. Bredow opined Plaintiff had no limitation in the ability to: (1) remember work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) sustain an ordinary routine without special supervision; (5) Make simple work-related decisions; (6) Ask simple questions or request assistance, and; (7) Be aware of normal hazards and take appropriate precautions. (Tr. 935). In this same section, Dr. Bredow opined Plaintiff had a moderate limitation in the ability to: (1) maintain attention for two hour segment; (2) maintain regular attendance and be punctual within customary, usually strict tolerances; (3) work in coordination with or proximity to others

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without being unduly distracted; (4) Perform at a consistent pace without an unreasonable number and length of rest periods; (5) Accept instructions and respond appropriately to criticism from supervisors; (6) Get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, and; (7) Respond appropriately to changes in a routine work setting. (Tr. 935). Lastly, Dr. Bredow opined Plaintiff had a marked limitation in the ability to deal with normal work stress and to complete a normal workday and workweek without interruptions from psychologically based symptoms for unskilled work. (Tr. 935). Dr. Bredow opined Plaintiff had; (1) marked difficulties with adapting or managing oneself; (2) moderate difficulties with concentrating, persisting, or maintaining pace; (3) moderate difficulties interacting with others, and; (4) mild to no difficulty with understanding, remembering, or applying information. (Tr. 936). Dr. Bredow opined Plaintiff would likely miss four or more days per month of work as a result of her medical impairments or need for medical treatment. (Tr. 936). In support of the opined limitations Dr. Bredow explained Plaintiff ...