Opinion
CIVIL ACTION No. 18-4252
06-18-2019
RICHARD GONZALEZ GONZALEZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Richard Gonzalez Gonzalez alleges the Administrative Law Judge ("ALJ") erred in denying his application for Social Security Income ("SSI") and Disability Insurance Benefits ("DIB") by: (1) misapplying the Medical-Vocational Rules; (2) improperly weighing opinion evidence; and (3) failing to support her credibility determinations with substantial evidence. Because I find the ALJ failed to support her finding that Gonzalez could communicate in English with substantial evidence, and this determination affects whether Gonzalez is disabled under the Medical-Vocational Rules, I respectfully recommend granting Gonzalez's request for review. In all other respects, the ALJ's conclusions were supported by substantial evidence.
PROCEDURAL HISTORY
Gonzalez filed for SSI and DIB in September 2011, alleging disability beginning February 1, 2011. R. at 457, 459. He later amended his onset date to August 12, 2011. Id. at 56, 107. Following a hearing, the ALJ denied Gonzalez's claim on April 25, 2018. Id. at 24-41.
Applying the five-step sequential analysis, see 20 C.F.R. §§ 404.1520(a)(i)-(v), 416.920(2)(4)(i)-(v), the ALJ found Gonzalez: (1) was not engaged in substantial gainful activity, R. at 28; (2) had the following severe impairments: (a) lumbar and cervical spine degenerative disc disease with lumbar radiculopathy, (b) lower extremity sensorimotor neuropathy, (c) obesity, (d) dysthymic disorder, and (e) anxiety disorder; and also suffered from non-severe hypertension, hyperlipidemia, diabetes mellitus, right shoulder degenerative joint disease, diabetic retinopathy, and bilateral macular edema, id.; (3) had no combination of impairments that satisfied a Listing, id. at 29-31; (4) had the residual functional capacity ("RFC") to perform light work, except he required a sit/stand option; required a cane to ambulate; could never climb ladders, ropes, or scaffolds; could not balance on uneven or moving surfaces; could have no exposure to hazards or temperature extremes; could not drive; could understand and remember only simple, one- or two-step instructions and carry out only routine and repetitive tasks; could make only simple decisions based on established standards and instructions; could tolerate no exposure to the general public but occasional exposure to supervisors or coworkers provided there is no tandem or team work with coworkers on the same tasks; and was limited to occupations where there are few and infrequent changes in the work setting or tasks performed, id. at 31-32; and (5) could perform jobs in the national economy, including inspector and hand packager, battery inspector, and bakery products inspector, id. at 39-40. The ALJ also found that, although Gonzalez testified that he did not speak or understand English, the record indicated he had a limited ability to communicate in English. Id. at 39.
Degenerative disc disease is a deterioration of the intervertebral disc to a less functionally active form. Dorland's Illustrated Medical Dictionary 479, 526 (32d ed. 2012) ("Dorland's"). Radiculopathy is a nerve root disease, such as from inflammation or impingement by a bony spur. Id. at 1571.
Neuropathy is a functional disturbance in the peripheral nervous system often related to diabetes. Id. at 1268.
Dysthymic disorder is a condition characterized by symptoms of mild depression. Id. at 582.
Diabetic retinopathy is the term used to characterize changes to the retina related to diabetes. Id. at 1634.
Diabetic macular edema is a complication of diabetic retinopathy in which there is swelling of the retina leading to fluid leakage from adjacent blood vessels, causing blurred vision. Id. at 593.
The Listing of Impairments is a regulatory device that "streamlines the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background." Bowen v. Yuckert, 482 U.S. 137, 153 (1987).
A claimant's RFC reflects "the most [he] can still do [in a work setting] despite [his] limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a).
FACTUAL HISTORY
Physical Symptoms
At the time of the ALJ's decision, Gonzalez, who has an eleventh-grade education and primarily communicates in Spanish, was a 51-year old former truck driver living with his wife and children. Id. at 59-61, 71. In August 2011, he visited the emergency room twice when his long-term back pain worsened. Id. at 550, 680, 697. He complained of pain radiating to his left leg and was prescribed narcotic pain medication. Id. at 689, 693. X-rays showed minimal lumbar spine degenerative changes and he was directed to follow up with his primary care provider and get an MRI. Id. at 693, 697.
In October 2011, Gonzalez completed a function report in which he reported he could no longer drive because his ongoing type II diabetes often caused him to lose consciousness. Id. at 543, 545. Gonzalez spent his days going to appointments and attempting chores, but had difficulty completing daily activities, such as dressing, shaving, and bathing, because of his pain. Id. Gonzalez's wife, Martha Guzman, dispensed his medication, but he was able to cook basic meals, pay bills, and sometimes shop. Id. at 544-45. Gonzalez said he felt isolated and depressed, no longer had any hobbies, and had anxiety because of his health. Id. at 546-47. He had lost about forty pounds since February 2011 and was frequently fatigued. Id. at 551-52. He also tried multiple pain relievers, physical therapy, and a back brace without relief. Id. at 551. Guzman completed a third-party function report corroborating Gonzalez's statements. Id. at 554-60.
In November 2011, state agency examining physician Dr. Arturo Ferreira noted Gonzalez had pain with range of motion of his lumbar spine, but no spasm, tenderness, or deformities. Id. at 710. Gonzalez could walk slowly without assistance for about thirty yards; had moderate difficulty getting up from a chair and sitting on the table; but had essentially normal neurological and musculoskeletal exams, except for a slight loss of sensation in his feet. Id. at 708-10. Dr. Ferreira opined that Gonzalez could: (1) lift or carry two to three pounds frequently and up to twenty pounds occasionally; (2) stand or walk up to three hours in an eight-hour day and sit for eight hours in a day, with the option to stand at will; (3) flex/extend all joints normally, including his lumbar spine; and (4) occasionally perform postural maneuvers. Id. at 712-15.
Throughout November/December 2011, Gonzalez continued to treat his back pain, hypertension, depression, and blurred vision at his primary care clinic, Delaware Valley Community Health ("DVCH"). Id. at 720-21, 723. In December 2011, Dr. Meeta D. Peer performed an electrodiagnostic test which showed evidence of lumbar spine radiculopathy. Id. at 733. Dr. Peer also noted that Gonzalez had lumbar spine tenderness and pain with motion, but normal joints, range of motion, and sensation; no assistive devices; and a normal gait. Id. at 737.
In February 2012, state agency medical consultant Dr. Anne C. Zaydon opined Gonzalez was able to: (1) lift and carry twenty pounds occasionally and ten pounds frequently; (2) stand or walk and sit for six hours in an eight-hour workday; (3) occasionally climb, crouch, and crawl; but (4) could not tolerate temperature extremes or pulmonary irritants. Id. at 121-23, 134-36.
Gonzalez visited DVCH in March 2012, where he complained of back pain and bilateral leg numbness. Gonzalez's lumbar area was tender and he appeared uncomfortable. Id. at 795. He was referred for an MRI and physical therapy, prescribed an orthotic device, and instructed to take his medications before visits; however, his diabetes was better controlled. Id. at 795. The next month, Gonzalez's lumbar MRI showed mild multilevel degenerative changes. Id. at 760.
In April 2012, Gonzalez saw Dr. Jasmeet Oberoi at Einstein Pain Institute ("EPI"). Gonzalez complained of pain in his lower back which was aggravated by prolonged sitting and lying down. Id. at 894. Dr. Oberoi found Gonzalez had a slightly antalgic gait, but 4/5 bilateral hip flexion strength, normal tone, and negative straight leg raises. Id. Dr. Oberoi noted Gonzalez's tender lumbar spine and limited and painful range of motion and noted the possibility of epidural steroidal injections. Id. at 894-95.
Gonzalez continued to complain of back pain at DVCH visits, id. at 983, and he received back injections on May 7, 2012 and May 29, 2012, id. at 870, 872. In summer 2012, Gonzalez reported severe pain, however he had forgotten to take his medication before the visit, despite previous instructions to do so. Id. at 788. Gonzalez also continued to report blurred vision and hypoglycemic episodes. Id.
A few weeks later, Gonzalez returned to EPI, again complaining of lower back pain radiating to his bilateral lower extremities, and was prescribed low-dose opioids. Id. at 893. At a subsequent DVCH visit, Gonzalez reported his pain was improving with that medication. Id. at 785. Although he had back and joint pain, he exhibited no joint swelling or muscle weakness. Id. at 786-87. Despite continuing to report pain and numbness, at a September 2012 EPI visit, Gonzalez declined a spinal cord stimulator. Id. at 892. He also declined insulin to treat his uncontrolled diabetes. Id. at 781.
In January 2013, Gonzalez went to the emergency room with lower back pain and right arm/shoulder pain. Id. at 804. A right shoulder x-ray showed mild degenerative changes, but Gonzalez maintained normal strength and bend in his right elbow. Id. at 806. A few days later, Gonzalez followed up at EPI, and a repeat x-ray confirmed those findings. Id. at 890, 877. He was instructed to continue taking his pain medication, which he reported helped for a few hours, and to follow up with DVCH. Id. at 890. Gonzalez visited DVCH a few days later, and although he received no further treatment for his back/arm pain, his diabetes and hypertension appeared better controlled. Id. at 1042. Gonzalez continued treatment at DVCH through June 2015, during which time his conditions appeared largely stable. Id. at 1047-81.
Gonzalez also continued to treat at EPI through July 2016, and his pain was generally stable with medication. See id. at 1127-37; see also, e.g., id. at 1134, 1136, 1137 (pain stable on meds). In November 2015, a cervical spine MRI showed multilevel degenerative changes and foraminal stenosis, id. at 1131, 1139, however, Gonzalez continued to subsequently report his medication was effective, see, e.g., id. at 1128, 1129, 1130. At a July 2017 EPI visit, Gonzalez's urine drug screen was negative for his prescribed Oxycodone, despite his assertions that he took it daily. Id. at 1127.
Foraminal stenosis is the abnormal narrowing of the passage formed by pedicles of adjacent vertebrae. Dorland's at 729, 1769.
In May 2017, consultative examiner Dr. Andrea Woll evaluated Gonzalez with his wife's assistance as interpreter. Id. at 1144. Dr. Woll found Gonzalez had an abnormal gait and performed activities slowly, but appeared to be in no acute distress. Id. She also noted that Gonzalez dragged his left leg and used a cane, but needed no help changing for the exam, rising from his chair, or using the examination table. Id. Gonzalez declined to walk on his heels and toes, squat, or flex/extend his lumbar spine, stating these movements would cause pain. Id. at 1144-45. Nevertheless, Gonzalez had full strength in all extremities, no sensory deficits, and no joint tenderness or deformity. Id. at 1145. Dr. Woll found Gonzalez had full range of motion in his hips, cervical spine, shoulders, knees, elbows, and ankles, but declined to test his lumbar spine. Id. at 1153-54. Dr. Woll opined that Gonzalez could sit for six hours, stand for four hours, and walk for five hours total in an eight-hour day. Id. at 1148. Gonzalez was medically required to use a cane, could never climb ladders or scaffolds, and could only occasionally perform certain postural maneuvers. Id. at 1148-50. Gonzalez had no limitations on his ability to do work-related physical activities. Id. at 1152.
Visual Symptoms
In October 2011, Gonzalez completed a function report in which he reported his ongoing diabetes caused blurred vision. Id. at 543. In December 2011 and January 2012, Gonzalez received injections to treat his macular edema and diabetic retinopathy. Id. at 752, 866. By March 2012, Gonzalez's blurred vision had improved. Id. at 862.
From January through May 2012, Gonzalez was seen approximately monthly for eye examinations. His eyesight ranged from 20/25 bilaterally without correction, id. at 867, to 20/40 in his right eye and 20/40+ in his left eye without correction, id. at 858. Gonzalez was found to have severe edema and hemorrhages bilaterally. See, e.g., id. at 867, 862, 858, 852. Gonzalez continued his eye examinations approximately bimonthly from September 2012 through February 2013. His eyesight continued to be approximately 20/40 without correction bilaterally, see, e.g., id. at 848, 846, 843, and he continued to have severe edema and hemorrhages, see, e.g., id. at 849, 846, 843. At several visits, Gonzalez was treated with focal laser. See, e.g., id. at 851, 857. Gonzalez was also examined in July 2013, September 2013, January 2014, and February 2014, with largely similar results. See, id. at 914-19, 920-22, 923-25. At the January 2014 visit, however, Gonzalez's providers emphasized the importance of controlling his blood sugar to address his visual conditions. Id. at 919.
In April 2014, treating ophthalmologist Dr. Aaila Chaudhry opined that Gonzalez had a fair prognosis, but risked blindness without treatment. Id. at 953. Dr. Chaudhry opined that Gonzalez's blurred vision and impaired depth perception resulted in limitations in reading, avoiding normal work hazards, walking on uneven terrain, and working with small or large objects. Id. at 956. Dr. Chaudhry said Gonzalez's symptoms were expected to last at least a year and frequently interfered with his attention and concentration. Id. She said Gonzalez would require one to two unscheduled breaks per day of thirty to forty minutes and would likely be absent from work two to three times a month. Id. at 957.
In June 2017, Dr. Lawrence Schaffzin reviewed medical records related to Gonzalez's visual condition and responded to questions from the ALJ. Id. at 1210. Dr. Schaffzin opined that Gonzalez's visual limitations failed to meet a Listing, and that his non-severe visual condition resulted in no functional limitations or restrictions. Id. at 1211-14. Gonzalez submitted additional questions to Dr. Schaffzin, which the ALJ summarized by asking Schaffzin to explain why his opinion should be given greater weight than that of Dr. Chaudhry. Id. at 660. Dr. Schaffzin responded that because Gonzalez's visual acuity was non-severe, it resulted in no difficulties reading small print or working with small objects. Id. at 1229. Dr. Schaffzin also noted that because Gonzalez had full visual fields, there was no support for limitations on avoiding workplace hazards or walking on uneven terrain. Id. Finally, because pain was not usually associated with his conditions, Gonzalez would not be expected to have vision-related absences. Id.
Psychiatric Symptoms
In December 2011, Dr. Daniel A. Schwarz performed a clinical psychological disability evaluation. Id. at 740-47. Gonzalez appeared significantly depressed but was cooperative, had goal-directed thoughts, and reported trying to go out short distances with his children. Id. at 742. He reported sometimes hearing voices "asking what [he] will do," but was alert and oriented. Id. Dr. Schwarz found Gonzalez had marginal remote memory function, but intact recent past memory and fair sleep, impulse control, and insight. Id. at 744. Dr. Schwarz assigned Gonzalez a GAF score of 55. Id. at 746. Gonzalez was also moderately limited in his ability to deal with simple instructions and markedly limited in his ability to deal with detailed instructions; make judgments on simple work-related decisions; interact with the public, supervisors, and coworkers; and respond appropriately to work pressures and changes. Id.
GAF scores (on a 100-point scale) reflect a mental health specialist's assessment of the severity of a patient's mental health symptoms on a particular day. Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) ("DSM-IV"). A GAF score in the 51 to 60 range indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Id. GAF scores have not been included in the most recent version of the DSM, published in 2013, due in part to their "conceptual lack of clarity" and lack of validity. DSM-V at 16.
The form on which Dr. Schwarz provided his opinion of Gonzalez's functional limitations does not define the terms "moderate" or "marked." R. at 746. However, other similar mental status questionnaires define a "moderate" limitation as "more than a slight limitation, but the individual is still able to function satisfactorily," and a "marked" limitation as a "serious limitation causing substantial loss in the ability to effectively function." See Scott v. Berryhill, No. 16-3736, 2018 WL 1660322, at *4 n.13 (E.D. Pa. Mar. 16, 2018).
In February 2012, state agency psychological consultant Dr. Anthony Galdieri found Gonzalez was moderately limited in his ability to: (1) concentrate for extended periods; (2) adhere punctually to a schedule; (3) work in coordination with others without distraction; (4) complete a normal workday or workweek without interruptions from symptoms; (5) accept instructions and criticism from supervisors; (6) perform at a consistent pace without unreasonable rest periods; (7) get along with coworkers without exhibiting behavioral extremes; and (8) respond to changes in the work setting. Id. at 123-24, 136-37. Nevertheless, Dr. Galdieri noted Gonzalez had functional social skills, the ability to perform daily activities, and was able to adapt to workplace changes without special supervision. Id. at 124, 137.
From 2012 through 2017, Gonzalez was seen at Nueva Vida Behavioral Health Center for anxiety and depression. A few weeks after beginning treatment there, Dr. Oscar Saldana completed a two-part biopsychosocial assessment of Gonzalez, noting that Gonzalez was anxious, feeling helpless, and having issues sleeping. Id. at 825. Gonzalez was suffering from moderate depression and mild anxiety, had low energy and self-isolation, but no panic attacks, explosive behaviors, or psychiatric outpatient treatment or hospitalizations. Id. at 825-26. Gonzalez reported good interaction with his family every week, and Dr. Saldana assigned him a GAF score of 60. Id. at 827, 830. Dr. Saldana also noted that Gonzalez's symptom presentation "may be affected by motivation to receive SSI." Id. at 828.
In April 2012, treating psychiatrist Dr. G. Pirooz Sholevar completed a mental RFC questionnaire, in which Gonzalez was again assigned a GAF score of 60. Id. at 763. Dr. Sholevar opined that Gonzalez had a fair prognosis with treatment, but suffered from symptoms such as anhedonia, decreased energy, anxiety, difficulty concentrating, isolation, and difficulty sleeping. Id. at 764. Gonzalez was also seriously limited in his ability to understand and remember short and simple instructions, sustain an ordinary routine without supervision, get along with coworkers, and take precautions against normal workplace hazards. Id. at 765-66. He was unable to meet competitive standards with respect to his ability to remember procedures, carry out simple or detailed instructions, maintain attention, work in coordination with others without distraction, make simple decisions, complete a normal workday or workweek without interruption from symptoms, perform consistently without unreasonable breaks, accept criticism from superiors, and respond to changes in the work setting. Id. Gonzalez had no useful ability to deal with normal work stress, set realistic goals, or make plans independently of others. Id. at 766.
For the first year of treatment, Gonzalez was seen approximately weekly by therapist Pio Cedano and every eight weeks by psychiatrist Dr. Sholevar. Id. at 900, 911, 913. At his first visit with Cedano, Gonzalez reported a one-year history of depression, constant worry about his medical conditions, lack of motivation, trouble concentrating, difficulty sleeping, irritability, and isolation. Id. at 836. In April 2012, Gonzalez was prescribed and began taking the sleep aid Ambien and the antidepressant Remeron, id. at 837; nonetheless, his complaints persisted through early June 2012, see, e.g., id. at 821-24, 832-34, 909. In June 2012, Dr. Sholevar increased Gonzalez's Ambien and Remeron dosage. Id. at 819, 837.
Around this time, Gonzalez's therapy sessions became less frequent, and he generally saw Cedano monthly, rather than weekly. See id. at 911. Between June 2012 and February 2014, Gonzalez continued to report anxiety about his medical conditions, see, e.g., id. at 808, 810, 812-14, 816-18, 886-87, 910, 1018-19, but noted improvements such as sleeping better, id. at 808, 811-14, 817-18, 910, 1016-17, 1020, and having more interaction with family, id. at 812-14, 817, 886-87, 1019-20. Dr. Sholevar consistently documented that Gonzalez had a fairly stable affect and mood; was fairly appropriate and engaged; and had fair social interactions. See, e.g., id. at 809, 815, 884, 885, 967-71. Although Gonzalez exhibited moderate frustration, irritability, self-control, explosiveness, and social isolation in 2012-2013, see, e.g., id., he showed improvements in many of these symptoms in 2013-2014, see, e.g., id. at 967-71. Gonzalez also fluctuated between exhibiting low and moderate dysthymia, anxiety, and dysphoria. Id. at 809, 815, 819, 884, 885, 967-71.
In February 2014, Dr. Sholevar increased Gonzalez's Remeron dose. Id. at 959. Gonzalez continued to see Cedano one to two times per month through March 2016. Id. at 1101-02. His symptoms remained largely stable. See, e.g., id. at 1022-31, 1105-14 (worry about medical condition); id. at 1022-23, 1025-27, 1029-31, 1109-10, 1111-12, 1115-17 (sleeping better); id. at 1027-30, 1110, 1113, 1115, 1117-18 (better family/social interaction). Gonzalez was oriented and communicative, see, e.g., id. at 1022-31, 1105-14, and at several visits reported looking forward to spending the holidays with his family, id. at 1027-28. In fall 2015, Gonzalez had increased difficulty concentrating, but noted he had run out of his medications. See, e.g., id. at 1111-14.
In May 2015, Dr. Sholevar completed a mental impairment questionnaire in which Gonzalez was again assigned a GAF of 60. Id. at 1032-36. Dr. Sholevar indicated that Gonzalez's primary symptoms were depression, anxiety, low energy, self-isolation, and poor sleep. Id. at 1034. Dr. Sholevar opined that Gonzalez was moderate-to-markedly limited in his ability to remember work-like procedures; understand and remember simple or detailed instructions; carry out detailed instructions; make simple work-related decisions; accept instructions and criticism from supervisors; adhere to basic standards of neatness; use public transportation; and set realistic goals. Id. at 1035. Gonzalez was markedly limited in his ability to carry out simple instructions, maintain concentration for extended periods, perform according to a schedule, sustain an ordinary routine, work in coordination with others without distraction, complete a workday without interruptions from psychiatric symptoms, perform consistently without unreasonable breaks, interact with the public, ask simple questions, maintain socially acceptable behavior and interactions with peers, be aware of and take precautions against workplace hazards, and make plans independently. Id. Dr. Sholevar also opined that Gonzalez would likely be absent from work more than three times per month. Id. at 1036.
In May 2017, Dr. Michael Schuman completed a consultative mental status evaluation, finding Gonzalez cooperative, with coherent goal-directed thought, but a depressed and irritated affect. Id. at 1159. Gonzalez was oriented, but had impaired attention and concentration. Id. He could do some simple calculations. Id. Gonzalez's cognitive functioning was below average to borderline and his insight and judgment were poor. Id. at 1160. Dr. Schuman noted that Gonzalez reported having no close friends or hobbies and was reliant on his wife for many daily necessities. Id. He opined that Gonzalez had a guarded prognosis and an expected treatment duration of more than two years. Id. Dr. Schuman also opined that Gonzalez was mildly limited in his ability to carry out simple instructions; moderately limited in his ability to make judgments on simple decisions; and markedly limited in his ability to understand and carry out complex instructions, make judgments on complex decisions, have socially appropriate interactions, and respond appropriately to usual work situations and changes. Id. at 1162-63.
Although there are no therapy records after March 2016, in August 2017, Dr. Sholevar completed another mental impairment questionnaire. Id. at 1173-78. He claimed Gonzalez's primary symptoms were isolation, low energy, low concentration, and anxiety associated with medical problems, and assigned a GAF score of 46. Id. at 1175. Dr. Sholevar found that Gonzalez's condition exacerbated pain and other physical symptoms, and that Gonzalez experienced decompensation episodes in work settings, but did not elaborate. Id. Dr. Sholevar opined that Gonzalez was only moderately limited in his ability to maintain socially acceptable behavior and use public transportation, but had moderate-to-marked or marked limitations in all other work-related functions. Id. at 1176. Dr. Sholevar again noted his expectation that Gonzalez would be absent from work more than three times per month. Id. at 1177.
A GAF score in the 41 to 50 range indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals . . . ) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV at 34.
Claimant's Testimony
Through an interpreter, Gonzalez testified that he sometimes drove, id. at 60, but had blurred vision and could focus for only a few minutes without experiencing headaches, id. at 62-63. He said he did not use his prescribed insulin because he feared needles. Id. at 64. He discussed his daily back pain with radiation to both legs, and said his medication did not relieve the pain, but did relax him. Id. at 65-66. Gonzalez also testified that he was depressed, isolated, and had trouble sleeping, even with his medication. Id. at 66-67. Gonzalez said he could sit for only about fifteen to twenty minutes at a time and could only walk slowly for half a block. Id. at 66. He also testified he could not lift anything if bending. Id.
DISCUSSION
A claimant is disabled if he is unable 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." 20 C.F.R. §§ 404.1505, 416.905; see also Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009). Such impairment "must be established by medical evidence consisting of signs, symptoms, and laboratory findings," and cannot be based solely on a claimant's statement of symptoms. 20 C.F.R. §§ 404.1508, 416.908. The ALJ must consider all evidence in the record and explain his reasoning. See id. §§ 404.1520(a)(3), 404.1527(c), 416.920(a)(3), 416.927(c). Evidence cannot be rejected "for an incorrect or unsupported reason," Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014), and an ALJ must specifically address any relevant evidence he chooses to discount, Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000).
I must accept all ALJ findings of fact that are supported by substantial evidence, meaning "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also 42 U.S.C. § 405(g). I "review the record as a whole to determine whether substantial evidence supports a factual finding," Zirnsak, 777 F.3d at 610, but I may not "re-weigh the evidence or impose [my] own factual determinations," Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Although I must conduct a "plenary review" of the ALJ's legal conclusions, Payton v. Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006), I must remand only if an error affected the outcome of the case, Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
I. Medical-Vocational Rules
Gonzalez argues the ALJ applied improper Medical-Vocational rules, or "Grids," based on an erroneous finding that Gonzalez could communicate in English. Pl. Br. at 23-26.
At step five of the sequential evaluation process, the Commissioner must show there is other work in the national economy that the claimant can perform. See 20 C.F.R. §§ 404.1520(a)(v), 416.920(2)(4)(v); Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). To improve the uniformity and efficiency of this determination, the Secretary of Health and Human Services promulgated the Grids. See Heckler v. Campbell, 461 U.S. 458, 460, 467 (1983). The ALJ first makes factual findings considering a claimant's vocational factors, or physical ability, age, education, and work experience. Sykes, 228 F.3d at 263. Depending on the combination of those factors, the Grids direct a conclusion on whether work exists in the national economy which the claimant can perform. Id. The "education" category considers a claimant's formal schooling or other training, but also whether the claimant can communicate in English. 20 C.F.R. §§ 404.1564(b); 416.964(b). The Grids, however, direct a finding of disabled or not disabled only where an individual meets the rule's precise profile. See 20 C.F.R. §§ 404.1569, 416.969 (the Grids do not apply "if one of the findings of fact about the person's vocational factors and [RFC] is not the same as the corresponding criterion of a rule" (citing id. pt. 404, subpt. p, app. 2, § 200.00(d)); S.S.R. 83-11, 1983 WL 31252, at *1 ("The criteria of a rule are met only where they are exactly met."); Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir. 1982).
During the period for which Gonzalez claims disability, he changed age categories from a "younger individual" to a "closely approaching advanced age individual." R. at 39. Gonzalez concedes that for the period during which he was a "younger individual," his ability to communicate in English was irrelevant because he would have been found "not disabled" under any test. Pl. Br. at 24. For the later period, however, Gonzalez claims that if the ALJ had found he could not communicate in English, grid rule 202.09 and not grid rule 202.11, which the ALJ used, would apply and result in a disability finding. Id. Grid rule 202.09 applies when an individual is closely approaching advanced age, is illiterate or unable to communicate in English, and has either no previous work experience or merely unskilled previous work experience, 20 C.F.R. pt. 404, subpt. p, app. 2, tbl. no. 2.
Although Gonzalez testified that he does not speak or understand English, the ALJ noted that the record established that he could communicate in English, but was more proficient in Spanish. R. at 39. The ALJ cited only a single consultative examination note, in which Dr. Schwarz observed that Gonzalez was "bilingual, but Spanish dominant." Id. (citing id. at 740-47). The ALJ failed to note that Dr. Schwarz, who is bilingual, conducted his interview with Gonzalez in Spanish. Id. at 740. Considering the record as a whole, the ALJ's reliance on Dr. Schwarz's observation is not substantial evidence. See Zirnsak, 777 F.3d at 610.
For example, Gonzalez required a Spanish interpreter at all three administrative hearings. R. at 52, 78, 96. He testified at his most recent hearing that he understands only some English, but is not bilingual, and cannot read or write in English. Id. at 70. Although his treating psychiatrist documented that Gonzalez "can speak, write and read in Spanish; and 50% in English," id. at 1007, Gonzalez said he required his wife's assistance to interpret when he was called by employers who spoke English, id. at 70. In his disability report, Gonzalez said he could not speak, read, understand, or write more than his name in English, id. at 521, and at one consultative examination, Gonzalez's wife interpreted for him, id. at 1142. Such evidence does not constitute substantial evidence that Gonzalez can communicate in English.
The Commissioner argues that grid rule 202.09 is inapplicable regardless of Gonzalez's ability to communicate in English because his previous work as a truck driver was classified as semiskilled and the rule requires either no work history or unskilled previous work. Def. Resp. (doc. 13) at 15. The applicable regulation, however, applies to individuals "who have a history of unskilled work experience, or who have skills that are not readily transferable to a significant range of semi-skilled or skilled work" within the individual's RFC. 20 C.F.R. pt. 404, subpt. p, app. 2, §§ 202.00(c), (d). Despite this, the ALJ concluded that "[t]ransferability of job skills is not material to the determination of disability because using the [Grids] as a framework supports a finding that the claimant is 'not disabled,' whether or not the claimant has transferable job skills." R. at 39. This is incorrect. Because grid rule 202.09 is otherwise applicable and would have directed a finding of disability had the ALJ found Gonzalez (1) was unable to communicate in English, and (2) had no transferable skills, the ALJ erred by failing to determine whether Gonzalez acquired any transferable skills from his work as a truck driver. See Mosleh v. Barnhart, No. 01-418, 2002 WL 31202674, at *10 (D. Del. 2002).
Accordingly, I recommend remanding Gonzalez's case to the ALJ to reconsider Gonzalez's ability to communicate in English and to determine whether he has transferable skills from his previous work, which may trigger a disability finding under grid rule 202.09.
Although I remand on this ground, the remainder of Gonzalez's claims are meritless for the reasons that follow.
II. Medical Opinions
Gonzalez argues the ALJ's RFC determination is not supported by substantial evidence because the ALJ improperly weighed the medical opinion evidence. Pl. Br. at 3-20.
Treating physicians' opinions are entitled to "controlling weight" if they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "not inconsistent with the other substantial evidence" in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Otherwise, the ALJ must assess the opinion based on the length, nature, and extent of the treatment relationship, the "frequency of the examination," the opinion's "supportability" and consistency with the record as a whole, the opining physician's specialization, and factors such as the opining physician's familiarity with the standards of the Social Security program. Id. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). "Although treating and examining physician opinions often deserve more weight than the opinions of doctors who review records, . . . . [s]tate agent opinions merit significant consideration as well." Chandler, 667 F.3d at 361 (internal citations omitted). The ALJ need not accept a treating source opinion on whether a claimant is disabled; dispositive issues are reserved for the ALJ. 20 C.F.R. §§ 404.1527(d), 416.927(d); Brown v. Astrue, 649 F.3d 193, 196 n.2 (3d Cir. 2011).
For claims filed on or after March 27, 2017, treating medical source opinions are evaluated under 20 C.F.R. §§ 404.1520c, 416.920c. See 82 Fed. Reg. 5844-01 (Jan. 18, 2017).
A. Dr. Sholevar - Treating Psychiatrist
The ALJ acknowledged that Dr. Sholevar was Gonzalez's treating psychiatrist, but noted that Gonzalez treated with Dr. Sholevar only once every eight weeks and the records associated with those visits were brief. R. at 36. She noted that Dr. Sholevar's medical source statements "each suggest that [Gonzalez] is incapable of meeting the basic mental demands of competitive work, as he would be unable to complete a normal work schedule or interact with coworkers due to his symptoms, and would struggle to carry out even simple tasks." Id. at 36-37. The ALJ gave Dr. Sholevar's opinions limited weight because Gonzalez: (1) showed improvement in mental symptoms with the use of medication; (2) maintained a consistent GAF score of 60 throughout treatment, indicating only mild to moderate symptoms; (3) exhibited largely intact memory during mental status exams at consultative examinations; and (4) saw Dr. Sholevar only once every eight weeks, with treatment notes suggesting only brief evaluations with continued use of medication over time. Id. at 37. The ALJ supported this assessment with substantial evidence. See id. (citing id. at 808, 811-13, 817-18, 823, 1019-20, 1022-24, 1026-27, 1103 (sleeping better), 814, 817, 821, 823, 886-87, 1019-20, 1024 (more social participation), 818 (better concentration), 822 (depression better), 886 (more energy); id. at 763, 810, 830, 1010, 1012, 1032 (GAF 60); 744 (recent past memory intact), 1159 (Gonzalez could remember three objects immediately and after five minutes); id. at 815, 819 (fifteen-minute visits); see also id. at 1032 (patient seen every 8 weeks for medication checks).
Although Gonzalez argues the ALJ substituted her own lay opinion for that of Dr. Sholevar by concluding the records showed "improvement," Pl. Br. at 5, the ALJ cited medical records from Gonzalez's therapy sessions stating that Gonzalez's symptoms were "better," or that Gonzalez had, for example, "more energy." See supra (citing mental symptom improvements). The therapy records also refute Gonzalez's claim that the ALJ did not cite any contradictory evidence in support of her determination. See Pl. Br. at 10. Further, Gonzalez's contention that his symptoms "fluctuated," rather than "improved," id. at 7, is not persuasive in light of the consistency of his GAF scores from 2011 until August 2017, see R. at 763, 810, 830, 1010, 1012, 1032. The drastically reduced GAF score of 46 that Dr. Sholevar assigned Gonzalez in August 2017 is inexplicable considering there were no further treatment records after March 2016 to support this alleged decrease in function. Id. at 1176.
Gonzalez argues the ALJ mischaracterized the evidence by finding that Dr. Sholevar's notes suggested only "brief" treatment visits when Dr. Sholevar did not document the visits' lengths, and, that in any event, the ALJ is not qualified to determine the required length of a patient visit. Id. at 8-9. Gonzalez is incorrect that Dr. Sholevar failed to document visit lengths. The record establishes that they met for only fifteen minutes at a time. See, e.g., R. at 815, 819, 884-85. Further, the ALJ does not purport to say Gonzalez medically required longer visits, but concludes only that the visits' durations should affect the weight accorded, as required by the regulations. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (ALJ may consider "extent of treatment relationship"); see also Donley v. Colvin, No. 13-775, 2013 WL 6498261, at *12 (W.D. Pa. Dec. 11, 2013) (fifteen-minute visits ranging between two and three months apart was appropriately part of ALJ basis for discounting treating physician opinion).
Gonzalez finally argues that the ALJ should have awarded Dr. Sholevar's opinion controlling weight because of its consistency with the consultative examiners' "ultimate conclusion[s]." Pl. Br. at 10. Gonzalez mischaracterizes the content of those opinions. Dr. Schwarz found Gonzalez was only moderately limited with respect to simple instructions, i.e., the only kind of instructions permitted under the RFC, R. at 740, and Dr. Schuman found Gonzalez had no limitations at all, id. at 1162-63. The ALJ is obligated to consider each opinion's consistency with all evidence, including the opinions of other providers, on a substantive basis and accord deference to those opinions only to the extent they are supported by medical evidence. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
B. Dr. Chaudry - Treating Opthalmologist
Gonzalez claims the ALJ rejected the opinion of treating opthalmologist Dr. Chaudry primarily because reviewing consultant Dr. Schaffzin disagreed. Pl. Br. at 14. I disagree. The ALJ gave Dr. Chaudry's opinion little weight based on three factors: (1) visual acuity, fields, and efficiency findings in Dr. Chaudry's own examinations; (2) the opinion of consultative examiner Dr. Woll; and (3) the opinion and subsequent explanation of Dr. Schaffzin. R. at 28-29. The ALJ cited substantial evidence to discredit Dr. Chaudry's opinion, even without reliance on Dr. Schaffzin's opinion. See id. (citing id. at 840 (20/30+ vision in right eye, 20/40 vision in left eye); id. at 852 (20/30+ vision in right eye, 20/30 vision in left eye); id. at 953-54 (20/25 central visual acuity, fair-good visual efficiency, and bilateral 120-degree fields of vision); id. at 1144, 1150 (Dr. Woll finding Gonzalez had 20/30 vision bilaterally with glasses and no visual limitations resulting from his conditions); see also id. at 1214 (Dr. Schaffzin finding Gonzalez's "visual condition is non-severe" and resulted in no limitations); id. at 1229 (Dr. Schaffzin explaining disagreement with treating source).
Although Gonzalez contends that Dr. Schaffzin and the ALJ failed to acknowledge major diagnostic testing which supported Dr. Chaudry's opinion, Pl. Br. at 15, there is no requirement that an ALJ discuss every piece of evidence. Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004). The ALJ did not reject Dr. Chaudry's objective findings, but instead focused on their resulting functional limitations, as she was required to do. See Walker v. Barnhart, 172 F. App'x 423, 426 (3d Cir. 2006) ("Mere presence of a disease or impairment is not enough. A claimant must show that his disease or impairment caused functional limitations that precluded him from engaging in any substantial gainful activity."). The ALJ discussed the evidence of Gonzalez's visual conditions and cited substantial evidence in support of her decision to reject Dr. Chaudry's opinion. See Parsons v. Barnhart, 101 F. App'x 868, 869 (3d Cir. 2004) (standard is not whether there is substantial evidence to support the claimant's position, but whether there is substantial evidence to support the ALJ's conclusions).
C. State Agency Reviewing Physicians and Consultative Examiners
Gonzalez claims the ALJ cited insufficient evidence to support her rejection of the opinions of the psychiatric consultative examiners, Dr. Schwarz and Dr. Schuman. Pl. Br. at 11-12. The ALJ did not reject those opinions, which largely support her RFC determination.
Dr. Schwarz found that Gonzalez was moderately limited with respect to simple instructions and markedly limited with respect to detailed instructions, making judgments and decisions, and interacting with others. R. at 746. The ALJ gave Dr. Schwarz's opinion partial weight, finding this only somewhat consistent with the evidence because there was "little to support marked difficulty in all social interactions." Id. at 35 (citing id. at 740). Dr. Schuman similarly found Gonzalez was not limited with respect to simple instructions but markedly limited with respect to complex instructions, making judgments on complex decisions, interacting with others, and responding to changes in the work setting. Id. at 36 (citing id. at 1162-63). The ALJ gave Dr. Schuman's opinion substantial weight because Gonzalez "appear[ed] capable of interacting with supervisors and coworkers on an occasional basis despite being best-suited for independent work." Id.
The ALJ partially credited Dr. Schwarz's opinion and substantially credited Dr. Schuman's opinion. The ALJ rejected the portion of Dr. Schwarz's opinion on Gonzalez's social functioning because marked limitation in social interaction was inconsistent with Dr. Schwarz's observation of Gonzalez's cooperative presentation at the examination. Id. at 35 (citing id. at 740). This constitutes substantial evidence. See Parks v. Comm'r of Soc. Sec'y, 401 F. App'x 651, 654 (3d Cir. 2010) (ALJ's reliance on claimant's ability to interact appropriately with medical personnel was substantial evidence for conclusion claimant was only moderately limited in social functioning). Although the ALJ does not cite support for discounting Dr. Schuman's opinion regarding Gonzalez's social limitations, she relied on other evidence that did not support a marked limitation in this area. See id. at 36; see also id. at 1027-30, 1110, 1113, 1115, 1117-18 (reporting improvements in social interaction); id. at 1022-31, 1105-14 (therapist documenting Gonzalez was communicative at visits).
Gonzalez also contends the ALJ erred by fully crediting the opinion of state agency examining physician Dr. Ferreira. Pl. Br. at 17-19. Dr. Ferreira found Gonzalez could lift twenty pounds occasionally and three pounds frequently, sit for eight hours, but stand and walk for no more than three hours. Id. at 34. The ALJ accorded this only partial weight because it was based on a single examination and was "not completely consistent with the objective results of the examination or with the totality of the evidence." Id.
Gonzalez argues that Dr. Ferreira's opinion that he could sit for eight hours but stand or walk for only three hours in an eight-hour day was consistent with other evidence. Pl. Br. at 18. Nevertheless, the ALJ's RFC determination included a sit/stand option, id. at 31, and the VE testified that there were jobs with this option available, id. at 72-73. Even if the ALJ had erred in her evaluation of this portion of Dr. Ferreira's opinion, any error is harmless because the RFC included a sit/stand option. See Wolfe v. Colvin, 203 F. Supp. 3d 469, 480 (M.D. Pa. Aug. 24, 2016) (so long as ALJ's decision is supported by substantial evidence and meaningful judicial review is permitted, error may be harmless).
Gonzalez next argues the ALJ erred in according the opinion of consultative examiner Dr. Woll partial weight. Pl. Br. at 19-20. Gonzalez fails to explain how awarding Dr. Woll's opinion more weight would benefit him. Dr. Woll found that Gonzalez could lift fifty pounds occasionally and twenty pounds continuously; walk for five hours, stand for four hours, and sit for six hours in an eight-hour day; but medically required the use of a cane when ambulating farther than five feet. Id. at 35. The ALJ found this opinion somewhat consistent with the evidence, but "overestimate[d] some aspects of [Gonzalez's] exertional capacity." Id. By failing to explain how the ALJ's ruling caused harm, Gonzalez has waived this claim. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009). In any event, I can identify no harm because the RFC accounts for the limitations Dr. Woll identified.
Finally, although Gonzalez contends the ALJ erred in failing to explain how she reconciled the opinions of Drs. Ferreira and Woll, and the state agency reviewer Dr. Zaydon, to whom she gave only partial weight, Pl. Br. at 20, the ALJ need only explain her reasons for discrediting evidence she rejects, Sykes, 228 F.3d at 266. The ALJ did this.
III. Consistency Analysis
Gonzalez argues the ALJ failed to support her consistency analysis with substantial evidence. Pl. Br. at 21-23.
An ALJ's assessment of a claimant's subjective symptoms is a two-step process. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3P, 2016 WL 1119029, at *3-4. First, a claimant must establish a medically determinable impairment capable of causing the alleged symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b). Second, the ALJ must evaluate the intensity and persistence of the symptoms in light of all of the available evidence and determine the extent to which they limit claimant's ability to work. Id. §§ 404.1529(c)(3), 416.929(c)(3). The ALJ must determine whether a claimant's reported symptoms are "consistent with the objective medical evidence and other evidence of record," SSR 16-3p, 2016 WL 1119029, at *7, and this analysis must be supported by substantial evidence, see, e.g., Roth v. Berryhill, No. 17-1875, 2019 WL 1417196, at *8 (M.D. Pa. Mar. 13, 2019) (affirming ALJ decision where subjective symptom analysis supported by substantial evidence); Fligger v. Berryhill, No. 17-1187, 2018 WL 6338328, at *1 n.1 (W.D. Pa. Sept. 20, 2018).
The ALJ found Gonzalez's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." R. at 32. Rather than constituting a boilerplate recital, as Gonzalez suggests, the ALJ found Gonzalez's claims inconsistent with the evidence, based on: (1) minimal physical examination findings; (2) minimal diagnostic findings, (3) pain relief with treatment, (4) reluctance to try, and noncompliance with, doctor-recommended treatment, (5) decreased frequency of pain management visits, and (6) improvement of mental symptoms with medications. Id. at 33-34. The ALJ cited substantial evidence in support of each finding. See id. (citing id. at 697 (no swelling or deformity, normal back alignment, no costovertebral angle tenderness, no associated bowel/bladder dysfunction, and ability to ambulate despite complaints of sharp, constant pain); 698 (lumbosacral spinal x-ray showing normal disc spaces and no fractures), 1139 (cervical spinal MRI showing only degenerative changes); 785 (pain improving with Tylenol #3), 792 (Tramadol and Flexeril "controlling [pain] better"), 1130-37 (patient reporting his current medications help his pain at eight sequential pain management visits); 780, 782 (patient resisted trying insulin therapy), 790 (patient had history of noncompliance with medical treatment), 888 (patient not interested in trying spinal cord stimulator), 1127 (urine drug screen negative for prescribed Oxycodone despite patient averment of daily use); 1127-37, 1221 (no pain management visits after July 2016, but last medical record submitted from April 2017); supra (citing 27 reported improvements in mental health symptoms at various visits)).
Gonzalez argues that the ALJ mischaracterized his pain treatment with Tylenol #3, a combination opioid analgesic, see Tylenol with Codeine #3, Drugs.com, http://www.drugs.com/mtm/tylenol-with-codeine-3.html (last visited May 21, 2019), as treatment with mere Tylenol, Pl. Br. at 23. This distinction is inconsequential because the ALJ's point was that Gonzalez's pain improved with medication, not the precise type of medication. See Wolfe, 203 F. Supp. 3d at 480.
Gonzalez contends that the ALJ's findings fail to explain how the diagnostic findings and treatment with injections and narcotics contradict his complaints of disabling pain. Pl. Br. at 22. The ALJ conceded there were diagnostic findings suggesting degenerative spinal changes and that Gonzalez had "medically determinable impairments [that] could reasonably be expected to cause the alleged symptoms." R. at 32-33. Nevertheless, the ALJ discussed several reasons why she discredited the severity of the symptoms Gonzalez alleged, and supported this analysis with substantial evidence. See supra. Although Gonzalez disputes the ALJ's characterization of his treatment as conservative, the ALJ noted instances in which Gonzalez declined to try a spinal cord stimulator, R. at 888, discontinued epidural steroid injections, id. at 870-73 (no injections since May 2012), and declined insulin to treat his diabetes, id. at 780, 782. This constitutes substantial evidence, and I may not re-weigh the evidence as Gonzalez asks. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
Gonzalez also argues that the ALJ's explanation of the evidence was inadequate because she "failed to discuss relevant diagnostic findings as to his visual impairments," and mischaracterized his mental health "improvements." Pl. Br. at 23. Although Gonzalez complained that he sometimes experiences headaches because of his vision, the ALJ discussed his visual impairments at length in her findings that his visual impairments were non-severe, not in connection with her subjective symptom analysis. R. at 32, see also id. at 28-29. Nevertheless, the ALJ gave great weight to the opinion of Dr. Schaffzin, who noted that "[p]ain is not usually associated with [Gonzalez's visual conditions, and t]here is no reason to be absent from work because of [these] condition[s]." Id. at 29. To the extent the ALJ erred in failing to discuss Gonzalez's alleged headaches, this error was harmless. The ALJ's conclusion that Gonzalez's visual impairments did not cause functional limitations was supported by substantial evidence. See Wolfe, 203 F. Supp. 3d at 480; see also supra at 19-20 (discussing Gonzalez's visual impairments). Further, the ALJ supported with substantial evidence her conclusion that Gonzalez's mental health improved with treatment. See supra (citing 27 reported improvements in mental health symptoms at various visits).
Accordingly, I make the following:
RECOMMENDATION
AND NOW, on June 18, 2019, it is respectfully recommended that Gonzalez's request for review be GRANTED and the matter be REMANDED to the Commissioner for further review consistent with this Report and Recommendation. On remand, the Commissioner is directed to provide the Appeals Council and the ALJ with a copy of this Order and Report and Recommendation. Objections to this Report and Recommendation may be filed within 14 days after being served with a copy thereof. See Fed. R. Civ. P. 72. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).
BY THE COURT:
/s/ Timothy R . Rice
TIMOTHY R. RICE
U.S. MAGISTRATE JUDGE