Opinion
CASE NO. 1:18-cv-02303-CCC-GBC
03-03-2020
JENNIFER EVAUGHN GARDNER, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Jennifer Evaughn Gardner ("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 GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act ("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. 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 (3d Cir. 2005).
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, 399 F.3d at 551. 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"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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)); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). 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 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. 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. BACKGROUND
A. Procedural History
In March 2016, Plaintiff filed an application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Act, alleging disability since August 14, 2014. (Tr. 15, 144-45, 208). In September 2017, an ALJ held a hearing where Plaintiff and a Vocational Expert ("VE") testified. (Tr. 33-52). On February 27, 2018, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 12-32). Plaintiff was forty-three years old at the time of the ALJ's decision. (Tr. 26, 28). In October 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. §§ 416.1481; 422.210(a). This action followed.
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges the following errors: 1) The ALJ's RFC assessment was not supported by substantial evidence as it rejected all medical opinions of record in violation of Doak v. Heckler; and 2) The presiding ALJ was not properly appointed under the Constitution and, therefore, lacked legal authority to hear and decide this case. (Pl. Br. at 9) (Doc. 9).
A. Plaintiff's Treating Physician's Opinion and RFC to Perform Light Work
Plaintiff states the ALJ erred in assigning little weight to Plaintiff's treating orthopedic physician, the only medical opinion of record addressing her limitations. (Pl. Br. at 9-15). On August 15, 2014, Plaintiff presented to Steven J. Triantafyllou, M.D., supervising physician, who diagnosed degenerative disc (L/LS spine), pain joint pelvic region and thigh, low back pain, and sciatica, and ordered an MRI of the lumbar spine. (Tr. 648, 677-78). In September 2014, Dr. Triantafyllou reported Plaintiff's MRI showed dehydration changes at L3-4, L4-5, and L5-S1 with disc protrusions at those levels. (Tr. 675). Dr. Triantafyllou diagnosed low back pain, lumbar disc disease, and sciatica, and ordered medication and physical/occupational therapy. (Tr. 675).
On September 15, 2016, Dr. Triantafyllou completed a medical source statement. (Tr. 1383). Dr. Triantafyllou indicated he examined Plaintiff every two to three months since August 2014. (Tr. 1383). He opined in an eight-hour day, Plaintiff would be able to sit for about four hours and stand/walk for less than two hours. (Tr. 1384). She must be afforded time to walk around during an eight-hour workday. (Tr. 1384). She would need two to four unscheduled breaks of five to ten minutes in length throughout the workday. (Tr. 1385). She must use a walker when engaged in standing / walking. (Tr. 1385). She could rarely lift less than ten pounds and never lift ten pounds. (Tr. 1385). She would be off-task more than twenty-five percent of the workday. (Tr. 1386). She would miss more than four days of work per month. (Tr. 1387). In sum, Dr. Triantafyllou opined Plaintiff was completely disabled due to neck pain, back pain, numbness, and weakness. (Tr. 1383-87). In the decision, the ALJ made the following findings:
The claimant has the following severe impairments: cervical degenerative disc disease with radiculopathy; lumbar degenerative disc disease with right sided radiculopathy; fibromyalgia; obesity; epigastric and umbilical hernia status-post closure; and peripheral nerve disease ...(Tr. 18, 21). The ALJ gave little weight to the September 15, 2016 opinion of Plaintiff's treating orthopedic physician, Steven J. Triantafyllou, M.D. (Tr. 26). The ALJ outlined the following reasons for rejecting Dr. Triantafyllou's September 2016 opinion:
the claimant has the RFC to perform sedentary work as defined in 20 CFR 404.1567(a). The claimant can lift / carry two-three pounds frequently and no more than 10 pounds occasionally. She can sit for six hours and stand / walk no more than two hours total in an eight-hour workday with the use of a cane or walker to ambulate. She can occasionally balance, stoop, kneel, crouch, and climb on ramps / stairs. She can never crawl or climb on ladders, ropes, or scaffolds. She is limited to only occasional use of foot controls with bilateral lower extremities and frequent reaching, handling, and fingering with the bilateral upper extremities.
The claimant has a number of medical problems, including cervical degenerative disc disease with radiculopathy, lumbar degenerative disc disease with right sided radiculopathy, fibromyalgia, obesity, epigastric and umbilical hernia status post closure, and peripheral nerve disease. These impairments are severe insofar as they limit the claimant to a range of sedentary work as set forth above, however, they are not so severe as to be completely disabling. The claimant is capable of doing a range of sedentary work on a sustained and consistent basis despite the limitations arising as a result of her impairments ...
Overall, the longitudinal evidence of record does not support the claimant's allegations concerning the intensity, persistence, and limiting effects of her symptoms. Physically, the claimant has degenerative disc disease in the cervical and lumbar spine per MRI imaging. Her exams with Dr. Triantafyllou and Dr. Jolly note diminished reflexes, decreased strength and sensation; however, Dr. Jolly, a neurological specialist, Dr. Triantafyllou, and physical therapists all noted questionable effort on the claimant's part and no surgical intervention has been recommended. Questionable effort on the claimant's part during physical
examinations as noted by three separate medical professionals is quite significant. Her exams also note no atrophy as one would expect from someone who has been using a walker since January 2015 and now a wheelchair for ambulation. Furthermore, Dr. Kurkland's records reflect normal motor, gait, sensory, and reflex findings. Her treatment has also been very conservative in nature, consisting of medication management and therapy. While the claimant has severe impairments, they are not to such a degree as to support listing level severity or inability to sustain a range of sedentary exertion work, as outlined above. As for the claimant's daily activities, the claimant reports significantly limited daily activities; however, she can tend to her personal care, prepare simple meals, perform light chores, do laundry, shop in stores, and manage money. She also enjoys watching television, reading books, and playing games on her computer. In March 2015, she noted as being able [to] shovel snow, but this is also during the period she purportedly required a walker for ambulation, as reported to the neurologist. This level of activity is not consistent with someone alleging such severe and debilitating symptomatology. Unfortunately, all of this is inconsistent with a finding of "disability" and demonstrates that the claimant's alleged symptoms are not entirely consistent with the evidence of record ...(Tr. 25-26). Although the ALJ pointed to Plaintiff's lack of effort on exams and attempt at snow shoveling as reasons to reject the opinion from Dr. Triantafyllou, the treating orthopedist was aware of these occurrences when he wrote the opinion on September 15, 2016. Notably, on March 18, 2015, Dr. Triantafyllou's records indicated Plaintiff had a set back after shoveling snow. (Tr. 657-59). Moreover, on July 20, 2016, Dr. Triantafyllou noted diffuse weakness in right lower extremity, and part of this was effort related. (Tr. 1484-85). Therefore, notwithstanding Plaintiff's lack of effort on exams and attempt at snow shoveling, Dr. Triantafyllou found Plaintiff to have disabling limitations. Consequently, the ALJ's findings were insufficient to reject the limitations assigned by the only medical opinion of record. "An ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions." Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). Barnett v. Berryhill, No. 3:18-CV-637, 2018 WL 7550259, at *6 (M.D. Pa. Dec. 10, 2018), report and recommendation adopted, No. 3:18CV637, 2019 WL 1082621 (M.D. Pa. Mar. 7, 2019). See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity [the claimant] could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence.") The Middle District of Pennsylvania recently observed an ALJ must state the reasons for assigning a particular weight to an opinion and cite evidence in the record in order for the Court to conduct a meaningful review:
The[] extreme limitations [opined by Dr. Triantafyllou] are not supported by the longitudinal record. The clinical exams note vastly inconsistent findings. Dr. Triantafyllou's exams note weakness, diminished sensation and diminished reflexes with use of a cane or walker; however, even Dr. Triantafyllou notes that her weakness is partly due to effort and her sensation is non-dermatomal. Furthermore, other exams note entirely normal gait and station with no motor, sensory or reflex deficits. He treatment has been very conservative with no longitudinal treatment with a pain management specialist or any other orthopedic or neurological specialists.
The ALJ's explanation is noticeably lacking citations to the medical record ... See Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) (explaining that for meaningful review to occur, each articulation of weight must be accompanied by "a clear and satisfactory explication of the basis on which it rests") ...McArthur v. Berryhill, No. 1:17-CV-2076, 2019 WL 1051200, at *8 (M.D. Pa. Jan. 30, 2019), report and recommendation adopted, No. 1:17-CV-2076, 2019 WL 1040673 (M.D. Pa. Mar. 5, 2019). Therefore, the ALJ cannot assign little weight to Plaintiff's treating orthopedist, which was the only medical opinion in the record addressing limitations, based on "normal gait and station with no motor, sensory or reflex deficits." (Tr. 26). Moreover, the ALJ's citation to Plaintiff's daily activities, including ability to tend to her personal care, prepare simple meals, perform light chores, do laundry, shop in stores, watch television, read books, and play games on her computer, were insufficient to deny Plaintiff's disability claim. (Tr. 25). "The ALJ cannot, as he did here, disregard this medical opinion based solely on his own "amorphous impressions, gleaned from the record and from his evaluation of [the claimant]'s credibility." Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)." Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000). Without any medical opinion being credited with regards to all of Plaintiff's limitations, the ALJ impermissibly relied on speculation or lay interpretation of medical evidence to reach the conclusion regarding Plaintiff's RFC. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (The ALJ may not substitute his own judgment for that of a physician). Therefore, substantial evidence does not support the ALJ's RFC finding when the ALJ rejected the limitations from Plaintiff's treating orthopedist, which was the only medical opinion in the record addressing limitations, and instead used his own evaluation of the medical evidence to decide Plaintiff's limitations. Accordingly, the ALJ's decision lacks substantial evidence a reasonable mind might accept as adequate to support the conclusion.
The Court recognizes that an ALJ is not required "to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505. However, there must be "sufficient development of the record and explanation of findings to permit meaningful review." Jones, 364 F.3d at 505; see e.g. Rivera v. Comm'r of Soc. Sec., 164 Fed. Appx. 260, 262 (3d Cir. 2006) (explaining how "[t]he only requirement is that, reading the ALJ's decision as a whole, there must be sufficient development of the record and explanation of findings"). For all of these reasons, the Court finds that there is not substantial evidence to support the ALJ's evaluation of the medical opinion evidence.
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567.
"A statement of reasons or findings also helps to avoid judicial usurpation of administrative functions, assures more careful administrative consideration, and helps the parties plan their cases for judicial review." See K. Davis, 2 Administrative Law Treatise s 16.05 (1958). "It is significant that both the Administrative Procedure Act governing administrative adjudications generally and regulations applicable to decisions of ALJs in disability matters require that the administrative law judge specify the reasons or basis for the decision." See 5 U.S.C. s 557(c) (1976); 20 C.F.R. s 404.939 (1980). Cotter, 642 F.2d at 705.
B. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011). Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018).
Plaintiff has made an Appointments Clause challenge pursuant to the ruling in Lucia v. S.E.C., 138 S. Ct. 2044 (2018), which found the Appointments Clause prescribes the exclusive means of appointing Officers of the United States, and only the President, with the advice and consent of the Senate, can appoint a principal officer, but Congress, instead of relying on that method, may authorize the President alone, a court, or a department head to appoint an inferior officer. U.S.C.A. Const. Art. 2, § 2, cl. 2. Lucia, 135 S. Ct. at 2044. Recently, in Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 159-60 (3d Cir. 2020), the Third Circuit affirmed the judgments of the District Court in Bizarre v. Berryhill, 364 F. Supp. 3d 418 (M.D. Pa. 2019) (Conner, C.J.), Cirko v. Berryhill, No. 1:17-CV-680, 2019 WL 1014195 (M.D. Pa. Mar. 4, 2019) (Conner, C.J.), and remanded these cases to the Social Security Administration for new hearings before constitutionally appointed ALJs, other than those who presided over the first hearings. See Cirko, 948 F.3d at 159-60.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
V. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and
may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.DATED: March 3, 2020
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE