Opinion
CASE NO. 4:18-cv-02460-MWB-GBC
03-04-2020
JUANA GINES, 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. Juana Gines ("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 December 2014 and February 2015, Plaintiff filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Act, alleging disability since March 25, 2013. (Tr. 22, 220-26). In July 2017, an ALJ held a hearing where Plaintiff and a Vocational Expert ("VE") testified. (Tr. 45-67). On October 31, 2017, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 12-44). Plaintiff was forty-one years old at the time of the ALJ's decision. (Tr. 35, 37). In November 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-8), 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 erred in evaluating the record; (2) The ALJ erred by affording insufficient weight to the opinion testimony of Plaintiff's treating physicians; (3) The ALJ erred in not finding Plaintiff met the listing for 12.04; (4) The ALJ erred in finding Plaintiff had the RFC to perform light work; (5) The ALJ erred in finding Plaintiff not credible; and (6) The ALJ erred in relying on the VE testimony. (See Pl. Br. at 3-4). (Doc. 7).
A. Plaintiff's Treating Physicians' Opinions and RFC Limitations
Plaintiff states the ALJ erred in assigning little weight to the opinions of Plaintiff's treating providers. (See Pl. Br. at 6-8).
On October 10, 2014, Plaintiff had a psychiatric interdisciplinary evaluation (outpatient) with Philhaven, signed by Ann Shenk Wenger, M.S., Access Center Clinician, and Umar Khayyam, M.D. (Tr. 669-72). Plaintiff reported auditory hallucinations of hearing a voice calling her, some suicidal ideation with no plan, eight years prior she chased her husband with a knife, and in 2011, she had a fight with her brother. (Tr. 669). Plaintiff was diagnosed with major depressive disorder, recurrent, severe, with psychotic features, and post-traumatic stress disorder. (Tr. 671).
On May 1, 2017, Plaintiff's treating nurse practitioner, Johnny Patterson, CRNP, with Philhaven Hamilton Heath Center, completed a mental RFC assessment. (Tr. 590-93). Mr. Patterson wrote, "based on my time with [Plaintiff] she currently remains too unstable to engage in productive and effective employment." (Tr. 592). Mr. Patterson sated Plaintiff continues to exhibit agitation and irritability in the presence of others and has urges to verbally and physically lash out. Id. Mr. Patterson wrote she periodically presents with paranoid thinking and auditory hallucinations. Id. Mr. Patterson noted these can affect understanding and memory, concentration, social interaction, and adaption. Id. Mr. Patterson wrote she met the criteria for listing 12.04 due to the observations cited supra as well as depressed mood and episodes of paranoia in thinking others are out to harm her. Id. at 593. In the medical source statement, Mr. Patterson found Plaintiff had marked limitations in the ability to work in coordination with or proximity to others without being distracted by them; in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and in the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Tr. 590-91).
On June 23, 2017, Plaintiff's treating therapist, Irving N. Perez, MA, with Philhaven Hamilton Heath Center, completed a mental RFC assessment. (Tr. 676-81). Mr. Perez wrote, "[Plaintiff] had a major mental health breakdown four years ago. She entered the mental health system - therapy, and medication." (Tr. 678). Mr. Perez noted Plaintiff's father was violent and addicted to illegal substances. Id. Mr. Perez stated Plaintiff has anxiety, panic attacks, and mood swings. Id. Mr. Perez wrote Plaintiff has been diagnosed with PTSD, delayed, panic disorder, and bipolar II disorder. Id. Mr. Perez wrote she met the criteria for listing 12.04 due to depressive disorder, characterized by depressed mood, diminished interest in almost all activities, sleep disturbance, psychomotor agitation, decreased energy, difficulty concentrating or thinking; and due to bipolar disorder, characterized by pressured speech, distractibility, and increase in psychomotor agitation; and extreme limitation in interacting with others and concentrating, persisting, or maintaining pace. Id. at 680. In the medical source statement, Mr. Perez found Plaintiff had marked limitations in the ability to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to work in coordination with or proximity to others without being distracted by them; to make simple work-related decisions; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to travel in unfamiliar places or use public transportation; and in the ability to set realistic goals or make plans independently of others. (Tr. 676-77). In the decision, the ALJ made the following findings:
Although the ALJ and the parties list Mr. Perez as "M.D.," it appears he signs his name "MA" to signify a Master's Degree, and underneath his signature, he writes "therapist." (Tr. 678). Normally, a therapist would not be considered an "acceptable medical source" under the regulations. See 20 C.F.R. § 416.913(a),(d); 20 C.F.R. § 404.1502 (Effective: March 27, 2017). However, Mr. Perez may still be an "acceptable medical source." The Court in Hazlak explains: One group of healthcare professionals which the regulations provide as an example of an acceptable medical source is "Licensed or certified psychologists." Id. at § 416.913(a)(2). Currently, the State of Pennsylvania licenses psychologists who have a doctorate's degree. However, there was a period of time in Pennsylvania when the educational requirement for licensure as a psychologist was a master's degree and when the Professional Psychologist Practice Act was amended to require a doctoral degree, psychologists licensed at the master's level were grandfathered in. Based upon these facts, the regulations do not exclude master level psychologists from consideration as acceptable medical sources, as Ms. Candlish is a licensed psychologist with a Master's Degree, and is able to practice independently. Hazlak v. Berryhill, No. 3:17-CV-00312, 2018 WL 1886527, at *14 (M.D. Pa. Mar. 22, 2018), report and recommendation adopted, No. 3:17-CV-312, 2018 WL 1879098 (M.D. Pa. Apr. 19, 2018).
The claimant has the following severe impairments: degenerative disc disease of the lumbar spine, right knee patellar chondrosis, post-traumatic stress disorder, major depressive disorder, panic disorder, and bipolar II disorder ...
the claimant has the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: she can occasionally lift and / or carry up to 20 pounds and
frequently lift and / carry 10 pounds, stand and / or walk for 2 hours in an 8-hour day and sit for 6 hours or more in an 8-hour day, with occasional climbing of ramps / stairs, no climbing ladders, ropes, or scaffolds, occasional balancing, stooping, kneeling, crouching, and crawling, and frequent exposure to excessive vibrations, and the operational control of moving machinery and unprotected heights. The claimant can understand, remember, and carry out simple instructions and make judgments on simple work-related decisions.(Tr. 25, 28-29). The ALJ gave significant weight to the June 2015 opinion of Disability Determination Services consultant Hong S. Park, M.D., who opined Plaintiff could perform light work with postural and environmental limitations. (Tr. 32, 75-78). The ALJ noted the opinion was consistent with the conservative pain management for her knee and back pain, the use of a cane (in determining limited standing and walking), and mild to moderate pathology via lumbar MRI. Id. at 32.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 416.967. --------
The ALJ gave partial weight to the July 2015 opinion of Disability Determination Services consultant Roger Fretz, Ph.D., who opined Plaintiff's mental impairments as non-severe, with no restrictions for activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties maintaining concentration, persistence, or pace. (Tr. 31-32, 69-74). Dr. Fretz noted, "The claimant is diagnosed with depression and anxiety. She is prescribed psychoactive medication, limited therapy. She was cooperative with the CE examiner, manifesting no evidence of a thought disorder, no evidence of severe dysfunction in any area ... She described some difficulty with socialization, is however able to engage in social settings, no legal issues. No problems with adaptation." (Tr. 74). The ALJ noted Plaintiff's mental symptoms cause more than minimal functional limitations. Id. at 32.
The ALJ gave partial weight to the July 2015 opinion of the consultative examiner Michael Caiazzo, Psy.D., who found Plaintiff's mildly impaired attention and concentration, moderately impaired memory, average intellectual functioning, euthymic mood, and a fair prognosis. (Tr. 378-79). Dr. Caiazzo noted, "[Plaintiff] walked using a cane ... walking ... appeared to be slow and labored." Id. at 377. Dr. Caiazzo noted her thought processes were coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. Id. Dr. Caiazzo listed the diagnoses of unspecified depressive disorder and unspecified anxiety disorder with panic attacks. Id. at 378. The ALJ found Dr. Caiazzo's opinion generally consistent but limited her to simple work due to her poor stress tolerance. Id. at 32.
The ALJ gave little weight to Plaintiff's treating providers. (Tr. 32-34). The ALJ found Mr. Patterson's opinion as inconsistent with medical evidence showing euthymic moods and moderate issues. Id. at 33. The ALJ further found the opinion not supported by Plaintiff's lack of psychiatric admission. Id. The ALJ also gave little weight to Plaintiff's treating provider, [Mr.] Perez. (Tr. 33-34). The ALJ found [Mr.] Perez's opinion as inconsistent, as [Mr.] Perez found marked limitation in the ability to interact with others, in order to satisfy the criteria of 12.04, but [Mr.] Perez found moderate limitation in the ability to interact appropriately with the public. Id. at 33. The ALJ further found [Mr.] Perez's opinion as disproportionate to the conservative mental health treatment and euthymic moods shown in the clinical setting. Id.
These findings are insufficient to summarily reject the opinions of two treating providers regarding Plaintiff's mental impairments, particularly when the ALJ gave only partial weight to the State Agency psychologists. (Tr. 31-32). Notably, the State Agency psychologists evaluated Plaintiff two years prior to the opinions from Plaintiff's treating providers. (Tr. 590, 676-81). Thus, the State Agency psychologists did not have to opportunity to review the more recent records and opinions from Plaintiff's treating providers. Id. Although the ALJ relied on the opinion of State Agency psychologist Dr. Fretz, he found Plaintiff's mental impairments as non-severe, with manifesting no evidence of a thought disorder or severe dysfunction in any area and no problems with adaptation. (Tr. 74). However, this is inconsistent with Mr. Patterson's report where Plaintiff periodically presents with paranoid thinking and auditory hallucinations. (Tr. 592). Mr. Patterson wrote Plaintiff had episodes of paranoia in thinking others are out to harm her. Id. at 593. It is also inconsistent with the report from Mr. Perez, who stated Plaintiff has anxiety, panic attacks, and mood swings. (Tr. 678). Mr. Perez also noted Plaintiff has been diagnosed with PTSD, delayed, panic disorder, and bipolar II disorder. Id. Although the ALJ relied on the opinion of State Agency psychologist Dr. Caiazzo, he found Plaintiff's thought processes were coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. Id. at 377. However, this is inconsistent with her treating records wherein Plaintiff reported auditory hallucinations of hearing a voice calling her, some suicidal ideation with no plan, and her report of eight years prior she chased her husband with a knife, and in 2011, she had a fight with her brother. (Tr. 669). Plaintiff was diagnosed with major depressive disorder, recurrent, severe, with psychotic features, and post-traumatic stress disorder. (Tr. 671).
Accordingly, the ALJ relied on the State Agency opinions from July 2015, issued two years prior to the opinions from Mr. Patterson and Mr. Perez, which did not address Plaintiff's mental history of violent behavior, paranoid thinking, and auditory hallucinations, as well as the prior 2014 diagnoses of major depressive disorder, recurrent, severe, with psychotic features, and post-traumatic stress disorder (Tr. 592-93, 669, 671, 678), and thus, the ALJ did not assess what limitations, if any, stemmed from all of Plaintiff's mental limitations in order to deny her disability claim. 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.") 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 relied, in part, on State Agency opinions issued approximately two years before Plaintiff's treating providers' opinions, which did not address Plaintiff's mental history of violent behavior, paranoid thinking, and auditory hallucinations, as well as the prior 2014 diagnoses of major depressive disorder, recurrent, severe, with psychotic features, and post-traumatic stress disorder (Tr. 592-93, 669, 671, 678) to decide Plaintiff's limitations. Accordingly, the ALJ's decision lacks substantial evidence a reasonable mind might accept as adequate to support the conclusion.
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).
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 4, 2020
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE