Rufe, District Judge.
Plaintiff Victoria Gurina appeals herein the decision of the Commissioner of Social Security denying her claim for supplemental security income (SSI) under Title XVI of the Social Security Act. Plaintiff seeks reversal of the Commissioners decision, arguing that the Administrative Law Judges (ALJ) finding that she is not disabled was not based on substantial evidence. The Commissioner argues that the ALJs determination was supported by substantial evidence and should therefore be upheld.
The Court referred the case to United States Magistrate Judge Elizabeth T. Hey, who has issued a Report and Recommendation (R & R) that the Commissioners decision to deny benefits be affirmed. Plaintiff has filed objections to the R & R, to which the Commissioner has responded. Upon this Courts careful, independent consideration of the administrative record, the parties submissions, and the applicable law, the Court will remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The R & R presents an exhaustive review of the procedural history, factual background, evidence, and the most recent ALJ decision. Plaintiff makes no objection to this portion of the R & R, and the Court hereby adopts and incorporates parts I-III of the R & R.
Plaintiff filed an application for SSI on March 27, 2013, alleging a disability onset date of January 26, 2013. Plaintiff is a 49-year-old woman with a twelfth-grade education and no relevant work history. Plaintiff alleged that she was disabled as a result of depression, headaches, high blood pressure, thyroid issues, and fibromyalgia.
After Plaintiffs original application from 2013 was denied, an administrative hearing was held on November 19, 2014 by an ALJ who determined that Plaintiff was not disabled for purposes of receiving SSI. At the hearing, Plaintiff testified that she cannot work because it is difficult for her to communicate with others, she does not go outside by herself, and she suffers from crying spells and anxiety attacks. In consideration of Plaintiffs symptoms and the opinions of several medical professionals, including Dr. Bronstein and Dr. Langberg, the ALJ found that Plaintiff had the residual functioning capacity (RFC) to perform:
[S]imple, routine, repetitive work with no assembly lines or mandated teams; no public contact; as self-paced as possible, with no hourly quotas, such that the rate of work can vary or even briefly stop, but all assigned work must be completed by the end of the work shift or workday.
When asked what type of work a hypothetical person with the limitations outlined in the RFC could perform, the vocational expert (VE) named the jobs of table assembler, hand stuffer, and product bagger.
The Appeals Council denied Plaintiffs request for review on May 18, 2016, and Plaintiff then filed an action in this Court. Of Plaintiffs many arguments concerning whether the ALJs decision was supported by substantial evidence, Plaintiff now limits her objections to the R & R as follows: (1) The R & R improperly found that Dr. Bronsteins opinions were either adequately incorporated into the RFC or properly rejected by the ALJ, and (2) the R & R improperly found that Dr. Langbergs opinions were either assigned sufficient weight, or properly rejected, by the ALJ.
II. STANDARD OF REVIEW
The Social Security Act provides for judicial review by a district court of any final decision of the Commissioner of Social Security in a disability proceeding. Upon review, a district court may enter a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The Commissioners findings as to any fact, if supported by substantial evidence, shall be conclusive. Accordingly, the Courts scope of review is limited to a plenary review of all legal issues and a determination of whether the ALJs findings of fact are supported by substantial evidence.
Substantial evidence refers to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The amount required is more than a mere scintilla, but less than a preponderance of the evidence. If the ALJs factual findings were based on the correct legal standards and were supported by substantial evidence, the district court is bound by them, even if [such court] would have decided the factual inquiry differently. The substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence.
Finally, in considering whether to approve the R & R of a magistrate judge, a district court must review de novo those portions of the R & R to which a party has objected. The district court may, in its discretion, accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
III. SOCIAL SECURITY LAW
An ALJ reviewing an application for disability benefits must employ a five-step process as established by the SSA. At step one, the ALJ must decide whether the applicant is engaged in substantial gainful activity. If she is, the claim is denied. If the applicant is not, then the ALJ must determine at step two whether the applicant has a severe impairment that significantly limits her physical or mental ability to work. If the applicant suffers from such an impairment, the ALJ must decide at step three whether the impairment meets the criteria for any of the impairments conclusively presumed to be disabilities, which are listed in Part 404, Subpart P, Appendix 1, or whether she has an equivalently debilitating medical condition. If the applicant does not suffer from such an impairment, the ALJ must decide at step four whether the applicant has the RFC to perform past relevant work. If the applicant does not have the RFC to perform past work, the burden shifts to the ALJ at step five to establish that the applicant has the RFC to perform other work that exists in the national economy. If the ALJ cannot demonstrate that the applicant has the RFC to perform existing work, the ALJ must find the applicant to be disabled.
IV. DISCUSSION
Plaintiff argues that the ALJs decision at step five-that Plaintiff could perform work existing in significant numbers in the national economy-was not supported by substantial evidence. Plaintiff objects to the R & Rs decision as to Dr. Bronstein, arguing that the R & R employed flawed reasoning, as well as reasoning not used by the ALJ, to justify the failure to incorporate the limitations into the RFC and hypothetical. As to Dr. Langbergs opinion, Plaintiff argues that the R & R did not address the ALJs lack of explanation as to the weight assigned to the moderate and marked limitations described by Dr. Langberg, and the R & R improperly found no error in the ALJs decision to reject Dr. Langbergs assessment of marked limitations in responding appropriately to usual work situations and changes in routine work setting.
A. Dr. Bronsteins Opinion
Dr. Bronstein was Plaintiffs treating psychiatrist. He provided treatment notes from eleven appointments with Plaintiff, which occurred between November of 2013 and December of 2014. Dr. Bronstein stated that he met with Plaintiff for approximately fifteen to twenty minutes on a monthly basis. Dr. Bronstein also conducted a psychiatric evaluation of Plaintiff on April 11, 2014. He diagnosed Plaintiff with Major Depressive Disorder and noted her complaints of feelings of hopelessness, helplessness, worthlessness, low self-esteem, and chronic concentration difficulties.
Dr. Bronstein explained in one note that Plaintiff was experiencing symptoms of appetite disturbance, sleep disturbance, mood disturbance, decreased energy, difficulty thinking and concentrating, and that she was prescribed medications including Alprazolam, Remeron, Abilify, Effexor, and Wellbutrin SR.
Plaintiff argues that the ALJ did not sufficiently consider the following limitations that Dr. Bronstein assigned to Plaintiff in his Medical Source Statement: a poor or no ability to work in proximity to others, and a fair or seriously limited ability to maintain regular attendance, make simple work-related decisions, and deal with normal work stress. Plaintiff argues that the ALJ erred by omitting these limitations from the RFC and resulting hypothetical despite the ALJs statement that she explicitly assigned Dr. Bronsteins opinion as to these limitations significant weight.
Because the ALJ explicitly credited this limitation, but did not incorporate it into the RFC and hypothetical, the Court sustains Plaintiffs objection as to Dr. Bronsteins opinion that Plaintiff has a fair or seriously limited ability to maintain regular attendance. The Court overrules Plaintiffs objections to the ALJs treatment of the other limitations described by Dr. Bronstein, including Plaintiffs ability to work in proximity to others, ability to make simple work-related decisions, and ability to deal with normal work stress.
The ALJs failure to provide reasons for not incorporating Plaintiffs alleged limitation in maintaining regular attendance into the RFC and hypothetical requires remand. An ALJ may choose to reject evidence that is medically supported but also contradicted by other evidence. An ALJ must also consider all of a claimants medically determinable impairments in assessing a claimants RFC, including impairments that are not severe. However, once a limitation is determined to be credibly established, the ALJ must accurately provide for it in the RFC and convey it to the vocational expert. The Third Circuit has explained that where evidence is medically supported in some parts of the record but contradicted in other parts, it may or may not be credibly established. It is for the ALJ to determine whether the evidence is so established, but he or she may not reject the evidence for no reason or for the wrong reason.
In this case, the ALJ credited Dr. Bronsteins opinion that Plaintiff is seriously limited in her ability to maintain regular attendance. The ALJ included this limitation in the list of limitations to which she attributed significant weight and that she incorporated into the functional assessment. The ALJ also differentiated between the limitations in Dr. Bronsteins notes that were given significant weight and the severe limitations regarding [Plaintiffs] memory and concentration, which the ALJ did not accept. Plaintiffs ability to maintain regular attendance is separate and distinct from any alleged severe limitations in memory and concentration, and was therefore credited by the ALJ.
The ALJ did note that Dr. Bronstein indicated that he could not estimate the frequency of Plaintiffs possible absences from work. However, an inability to estimate the frequency of absences does not inherently discount Dr. Bronsteins opinion that Plaintiff has a serious limitation in maintaining regular attendance. Moreover, the ALJ did not state that Dr. Bronsteins inability to estimate the frequency of absences caused her to discount, or give less weight to, the opinion that Plaintiff is seriously limited in her ability to maintain attendance. Rather, as previously explained, the ALJ stated that she gave significant weight to this limitation.
Despite crediting Plaintiffs limitation in maintaining regular attendance and being punctual within customary, usually strict tolerances, the ALJ did not incorporate it into the RFC or resulting hypothetical. Consequently, the VE was not asked any questions related to these limitations at the November 19, 2014 hearing. The VEs opinion that Plaintiff could perform the jobs of table assembler, hand stuffer, and product bagger was therefore not made in consideration of all of Plaintiffs limitations that the ALJ credited. The ALJ also did not provide any explanation for the RFC and hypothetical failing to mention Plaintiffs limitation in maintaining attendance. For this reason, remand is necessary.
The Court sustains the objections to the R & R to the extent it employed reasoning not found in the ALJs decision to justify the ALJs choice not to address Plaintiffs limitation in maintaining attendance. The R & R determined that the ALJ decided not to credit Dr. Bronsteins opinion as to this limitation, reasoning that it is related to the severe limitations in concentration and memory that the ALJ explicitly discredited. In support of this determination, the R & R provided that Dr. Bronstein stated, chronic concentration difficulties ... may influence the other limitations in Dr. Bronsteins report that are the subject of Plaintiffs motion. Therefore, according to the R & R, the ALJs decision to discredit Plaintiffs severe limitations related to concentration and memory provided an adequate basis for the ALJ to reject Plaintiffs alleged limitation in maintaining regular attendance. This basis relied upon by the R & R, however, appears nowhere in the ALJs decision. The ALJ never associated Plaintiffs limitations in maintaining attendance with her concentration difficulties, and made no reference to Dr. Bronsteins note that Plaintiffs chronic concentration difficulties may influence her other limitations.
The Third Circuit has made clear that a court reviewing an administrative decision is not permitted to weigh the evidence or substitute [its] own conclusions for that of the fact-finder. Instead, a court must rely on the reasoning and findings offered by the ALJ. Here, the R & R substituted its own reasoning for that of the ALJ. The ALJ did not cite a relationship between limitations in concentration and limitations in maintaining attendance to support the decision to not address Plaintiffs alleged limitation in maintaining attendance in the RFC and hypothetical. Rather, the ALJ explicitly stated that she incorporated the listed limitations, which included the limitation in maintaining attendance, into the RFC. Additionally, as previously noted, the ALJ explicitly distinguished between the limitations in Dr. Bronsteins notes that were given significant weight, including the limitation in maintaining attendance, and the severe limitations regarding [Plaintiffs] memory and concentration, which the ALJ did not accept.
Additionally, the R & Rs reasoning is flawed. Dr. Bronsteins notes only mentioned that chronic concentration difficulties may affect the other limitations Plaintiff experiences. A decision not to credit the doctors opinion regarding severe limitations regarding [Plaintiffs] memory and concentration, does not justify a decision to discount any opinion regarding an existing limitation that might be impacted by concentration or memory. At most, a decision not to accept limitations in memory and concentration would justify a decision not to accept the possibility that concentration issues may exacerbate other existing limitations.
Substantial gainful activity means performance of substantial services with reasonable regularity. Plaintiffs limitation in her ability to maintain attendance is therefore certainly a relevant factor in determining whether she is able to engage in gainful employment. The Court thus holds that the ALJs decision was not supported by substantial evidence because the ALJ credited Plaintiffs limitation in her ability to maintain regular attendance, but failed to incorporate it into the RFC assessment and hypothetical posed to the VE. The case will be remanded to the Commissioner for further consideration as to whether Plaintiffs mental impairments limit her ability to work.
B. Dr. Langbergs Opinion
Dr. Langberg conducted a consultative examination on June 11, 2013. He diagnosed Plaintiff with Major Depressive Disorder, recurrent, moderate to severe, and panic disorder with agoraphobia. Plaintiff argues that the ALJ did not assign sufficient weight to the following opinions from Dr. Langberg: that Plaintiff has moderate to marked limitations in her ability to relate to coworkers, employers, and the public due to anxiety; that she was markedly limited in her ability to shop due to anxiety; and that she had moderate to marked limitations in her ability to sustain work or work-like-related activities due to anxiety and depression. Plaintiff argues that the ALJ provided erroneous reasons for rejecting Dr. Langbergs opinion that Plaintiff has marked limitations in responding appropriately to usual work situations and to changes in a routine work setting.
The Court agrees with the R & R that the ALJ properly explained the weight given to Dr. Langbergs opinion. Where evidence conflicts, the ALJ may choose which evidence to credit so long as she does not reject evidence for no reason or for the wrong reason. The ALJ is not required to undertake an exhaustive discussion of all the evidence; it is sufficient so long as the reviewing court can determine that the ALJs decision is supported by substantial evidence. Here, the ALJ adequately incorporated those opinions of Dr. Langberg that she chose to credit into the RFC. Additionally, the ALJs decision to reject Dr. Langbergs opinion concerning Plaintiffs alleged marked limitations responding to usual work situations and changes in routine was supported by substantial evidence. Therefore, the Court overrules Plaintiffs objections relating to the ALJs treatment of Dr. Langbergs opinions.
V. CONCLUSION
For the foregoing reasons, this Court sustains Plaintiffs objection to the R & R in part, finding that the ALJ failed to incorporate Dr. Bronsteins opinion that Plaintiff has serious limitations in maintaining regular attendance into the RFC and hypothetical posed to the VE. The Court overrules Plaintiffs objections to the ALJs treatment of the remainder of Dr. Bronsteins opinions. The Court also overrules Plaintiffs objections to the ALJs treatment of Dr. Langbergs opinion. The Court grants Plaintiffs request for review, and remands for further consideration pursuant to 42 U.S.C. § 405(g).
R. 80, 84-85.
Dr. Bronstein is Plaintiffs treating psychiatrist, and Dr. Langberg is the psychologist who performed the consultative examination.
R. 63.
R. 87-88.
Plaintiff also stated, in a third argument, that the ALJ failed to include all of Plaintiffs credibly established limitations in her RFC and hypothetical question to the VE. This argument is derivative of the others and will be addressed together with the first two.
42 U.S.C. § 405(g).
Id.
Id.
Schaudeck v. Commr of Social Sec. Admin. , 181 F.3d 429, 431 (3d Cir. 1999).
Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted).
Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir.1988).
Fargnoli v. Massanari , 247 F.3d 34, 38 (3d Cir. 2001).
Schaudeck , 181 F.3d at 431.
28 U.S.C. § 636(b)(1)(C).
Id.
20 C.F.R. § 404.1520 ; see also Sykes v. Apfel , 228 F.3d 259, 262-63 (3d Cir. 2000).
20 C.F.R. §§ 404.1520(b), 416.920(b) ; see also Bowen v. Yuckert , 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
20 C.F.R. §§ 404.1520(c), 416.920(d).
See 20 C.F.R. §§ 404.1520(d), 416.920(d).
20 C.F.R. §§ 404.1520(e), 416.920(e).
Id.
R. 385-94, 433-34.
R. 428.
R. 423-26
R. 423.
R. 428-29.
According to Dr. Bronsteins report, fair means a seriously limited ability to function. R. 429-430.
Pl.s Obj. to R. & R. [Doc. No. 17] at 3.
As to these three limitations, this Court reaches the same conclusion as the R & R but for different reasons. The RFC and hypothetical sufficiently addressed Plaintiffs limitations in these areas. The RFC and hypothetical addressed Plaintiffs fair ability to make simple work-related decisions and deal with normal work stress by limiting Plaintiff to simple, routine, and repetitive work. R. 63. The RFC and hypothetical addressed her difficulties dealing with normal work stress by limiting her to jobs that are as self-paced as possible, with no hourly quotas, such that the rate of work can vary or even briefly stop. R. 63.
The RFC and hypothetical addressed Plaintiffs limitations in working in proximity to others by limiting Plaintiff to work with no assembly lines or mandated teams; no public contact and work that is as self-paced as possible. R. 63. There is substantial evidence in the record to support the ALJs determination that Plaintiff could perform such work. Notably, the jobs that the VE suggested as a result of the RFC were, as the R & R notes, limited to those with the lowest level of interaction with people that is necessary for jobs listed in the [Dictionary of Occupational Title]. R & R. 20 (citing Hann v. Colvin , 12-6234, 2014 WL 1382063, at *23 (N.D. Ca. Mar. 28, 2014) ). The ALJ also specifically noted Dr. Bronsteins opinion that Plaintiff had a good ability to interact appropriately with the general public and maintain socially appropriate behavior. R. 64. Moreover, the ALJ mentioned in her decision that [Plaintiffs] records show that she interacts well with family members, and has even traveled internationally with family, which shows she is not as socially isolated as she claims. R. 61. While the ALJ gave significant weight to Plaintiffs limitations in interacting with others and incorporated it into the RFC, the ALJ provided adequate reasoning for not crediting Plaintiffs assertions as to the alleged severity of this limitation. Therefore, although the RFC does not explicitly require limited interaction with co-workers, the fact that it limits Plaintiff to simple, routine, and repetitive work that is as self-paced as possible reasonably addresses issues of being distracted when in proximity to others.
Rutherford v. Barnhart , 399 F.3d 546, 554 (3d Cir. 2005).
20 C.F.R. § 404.1545 (2016).
Rutherford , 399 F.3d at 554.
Id.
Id. (quoting Mason v. Shalala , 994 F.2d 1058, 1066 (3d Cir. 1993) ).
R. 64.
In her report, the ALJ listed Dr. Bronsteins opinion as to Plaintiffs limitations, including her limitation in her ability to maintain regular attendance. The ALJ then stated:
While significant weight was accorded to this assessment, and the identified limitations incorporated into the functional assessment set forth above, the severe limitations regarding claimants memory and concentration have not been accepted as they are not supported by the record as a whole, particularly upon review of Dr. Brownsteins contemporaneous treatment notes.
R. 64.
R. 64.
R. 64.
See R. 63.
See R. 86-92.
See R. 87-88.
Where a credibly established limitation is omitted from an administrative law judges hypothetical question to a vocational expert, there is a danger that the vocational expert will identify jobs requiring the performance of tasks that would be precluded by the omitted limitation. Hux v. Astrue , 11-1306, 2012 WL 4498845, at *6 (W.D. Pa. Aug. 27, 2012) (citing Ramirez v. Barnhart , 372 F.3d 546, 552-555 (3d Cir. 2004) ).
R & R at 16 (quoting R. 430).
Burns v. Barnhart , 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan , 970 F.2d 1178, 1182 (3d Cir. 1992) ).
Cortes v. Commr of Soc. Sec. , 255 Fed. Appx 646, 655 n.6 (3d Cir. 2007) (The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.) (citing SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ).
R. 64.
R. 64. Notably, each of the limitations noted by Dr. Bronstein that the ALJ stated she incorporated into the functional assessment was a limitation that, according to Dr. Bronsteins notes, could be affected by concentration issues. Had the ALJ decided to discount every limitation influenced by issues of concentration, as the R & R suggests, there would have been no limitations identified by Dr. Bronstein to incorporate[ ] into the functional assessment. R. 64.
R. 430 (emphasis added).
R. 64.
See R. 430.
Kangas v. Bowen , 823 F.2d 775, 778 (3d Cir. 1987) (quoting Markham v. Califano , 601 F.2d 533, 534 (10th Cir. 1979) ).
See e.g., Ramirez v. Barnhart , 372 F.3d 546, 554 (3d Cir. 2004) ; Washington v. Astrue , No. 08-2938, 2009 WL 855893, at *1 (E.D. Pa. Mar. 31, 2009) (holding that remand was necessary where ALJ found at step four that plaintiff could perform her past relevant work but failed to include Plaintiffs mild limitations in social functioning and concentration in her RFC assessment and hypothetical to the vocational expert); Curran v. Astrue , No. 11-5894, 2012 WL 5494616, at *5 (E.D. Pa. Nov. 13, 2012) (holding that the ALJs hypothetical was incomplete where it failed to address Plaintiffs mild functional limitations in daily living, social functioning, and concentration, persistence or pace).
R. 279-87.
R. 286.
Pl.s Br. in Supp. of Req. for Judicial Review [Doc. No. 11] at 14-17.
Rutherford , 399 F.3d at 554.
Hernandez v. Commr of Social Sec. , 89 Fed. Appx 771, 773-74 (3d Cir. 2004) ; See also Hur v. Barnhart , 94 Fed. Appx 130, 133 (3d Cir. 2004) (There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record).
The ALJ addressed Plaintiffs marked limitations in carrying out complex instructions by limiting her to simple, routine, and repetitive work. The ALJ addressed Plaintiffs moderate limitations in her inability to interact appropriately with the public, supervisors, and co-workers by limiting her to work with no assembly lines, no public contact, and work that is as self-paced as possible. See R. 63, 292. Although the ALJ did not include the specific language from Dr. Langbergs opinion that Plaintiff has difficulty sustaining work or worklike-related activities due to anxiety and depression, the ALJ sufficiently addressed this limitation. The language of this particular limitation is fairly broad, and the ALJ addressed and accounted for the specific issues identified by Dr. Langberg that contribute to her difficulty sustaining work-related activities including decision making, carrying out complex instructions, and making judgments on work-related activities. R. 287, 290.
As noted in the R & R, substantial evidence supports the ALJs decision to reject Dr. Langbergs opinion that Plaintiff has marked limitations responding appropriately to usual work situations and to changes in routine work settings. R & R at 23. The ALJ explained that Dr. Langberg only examined Plaintiff once and his narrative report does not support the identified marked limitations. Plaintiff correctly points out that Dr. Langbergs report lends some support to his opinion regarding this alleged limitation. Dr. Langberg found that Plaintiff had mild psychomotor retardation, dysphoric mood, sad and forlorn affect, inability to think abstractly, and difficulty in performing serial threes. R. 283-85. However, Dr. Langbergs narrative also noted that she was appropriately dressed and groomed, did not evidence obvious shifts in anxiety during the interview, was fully cooperative and pleasant, demonstrated a good level of insight, and her impulse control was intact. R. 283-85. Dr. Langbergs narrative report does not specifically mention Plaintiffs ability to respond to work situations and changes in routine. See R. 283-85. Moreover, Dr. Gavazzi, who reviewed Dr. Langbergs report, stated that Plaintiff had only moderate limitations responding to changes in the work setting. R. 129. The ALJs decision resolving this conflict created by countervailing evidence was supported by substantial evidence in the record.