Opinion
Civil No. 1:18-CV-1454
08-06-2019
MICHAEL L. LEWIS, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Defendant.
(Judge Mannion) () REPORT AND RECOMMENDATION
I. Introduction.
This is a social security appeal brought under 42 U.S.C. § 405(g). The plaintiff, Michael Lewis ("Mr. Lewis"), seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Social Security Disability Insurance Benefits under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
This matter has been referred to the undersigned United States Chief Magistrate Judge to prepare a report and recommended disposition pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). Because the Commissioner's decision is not supported by substantial evidence, we recommend that the Court vacate the decision and remand the case to the Social Security Administration for further proceedings.
II. Procedural History.
The Court refers to the administrative transcript provided by the Commissioner. See docs. 12-1 to 12-11. On June 3, 2015, Mr. Lewis protectively filed an application for a period of Disability and Disability Insurance Benefits contending that he became disabled on April 14, 2015. Admin. Tr. at 15. After the Commissioner denied Mr. Lewis's claim at the initial level of administrative review on September 21, 2015, Mr. Lewis requested an administrative hearing on September 25, 2015. Id. On April 21, 2017, with the assistance of a non-attorney representative, Mr. Lewis testified at a hearing before Administrative Law Judge Melissa Hammock ("ALJ"). Id. at 31-78.
The facts of this case are well known to the parties and will not be repeated here. Instead, we will recite only those facts that bear on Mr. Lewis's claims.
The ALJ determined that Mr. Lewis had not been disabled within the meaning of the Social Security Act from April 14, 2015, the alleged onset date, through December 31, 2019, the date last insured, and so denied Mr. Lewis's application for benefits on July 31, 2017. Id. at 26. Mr. Lewis appealed the ALJ's decision to the Appeals Council on July 31, 2017, which denied his request for review on May 21, 2018. Id. at 1-4. This makes the ALJ's decision the final decision of the Commissioner and subject to judicial review by this Court.
On July 24, 2018, Mr. Lewis initiated this action by filing a complaint seeking "such relief as may be proper." Doc. 1. The Commissioner filed an answer and a certified transcript of the administrative proceedings. Docs. 11, 12. The parties have filed briefs, and this matter is ripe for decision. Docs. 15, 18-19.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, "the court has plenary review of all legal issues decided by the Commissioner." Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). But the court's review of the Commissioner's factual findings is limited to whether substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019). "[T]he threshold for such evidentiary sufficiency is not high." Biestek, 139 S. Ct. at 1154. Substantial evidence "means—and means only—'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence "is less than a preponderance of the evidence but 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). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's] finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003).
The question before this court, therefore, is not whether Mr. Lewis was disabled, but whether substantial evidence supports the Commissioner's finding that he was not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ.
To receive benefits under the Social Security Act by reason of disability, a claimant must 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); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). In addition, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
"Disability insurance benefits are paid to an individual if that individual is disabled and 'insured,' that is, the individual has worked long enough and paid social security taxes." Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *1 n.5 (M.D. Pa. Mar. 14, 2014) (citing 42 U.S.C. §§ 415(a), 416(i)(1)). "The last date that an individual meets the requirements of being insured is commonly referred to as the 'date last insured.'" Id. (citing 42 U.S.C. § 416(i)(2)). Here, the ALJ determined December 31, 2019 to be Mr. Lewis's date last insured. Admin. Tr. at 15.
In determining whether the claimant is disabled, the ALJ follows a five-step sequential-evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must sequentially determine (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience, and residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(a)(4).
The ALJ must also assess a claimant's RFC at step four. Hess v. Comm'r of Soc. Sec., ___ F.3d ___, 2019 WL 3418953, at *2 n.2 (3d Cir. July 30, 2019). The RFC is "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). In making this RFC assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents the claimant from engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once the claimant meets this burden, the burden shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform and that are consistent with the claimant's age, education, work experience, and RFC. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requirements. Most significantly, the ALJ's decision must provide "a clear and satisfactory explication of the basis on which [the decision] rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved, and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-07. "[T]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999).
IV. The ALJ's Decision Denying Mr. Lewis's Claim.
On July 31, 2017, the ALJ denied Mr. Lewis's claim for disability insurance benefits. Admin. Tr. at 26. Applying the sequential-evaluation process, the ALJ determined that Mr. Lewis was not disabled within the meaning of the Social Security Act. Id. The ALJ first concluded that Mr. Lewis "meets the insured status requirements of the Social Security Act through December 31, 2019." Id. at 17. At step one of the sequential-evaluation process, the ALJ found that Mr. Lewis had not engaged in substantial gainful activity "since April 14, 2015, the alleged onset date." Id.
At step two of the sequential-evaluation process, the ALJ found that Mr. Lewis had bilateral posterior tibial tendon dysfunction, obesity, peroneal tendonitis of the right ankle, osteoarthritis of knees, patellofemoral syndrome, and degenerative disc disease as severe impairments. Id. The ALJ found that Mr. Lewis's hypertension and gout were non-severe impairments because they did not significantly limit his ability to perform basic work activities. Id. at 17-18.
At step three of the sequential-evaluation process, the ALJ found that Mr. Lewis did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 18. More specifically, the ALJ discussed listing 1.02, major dysfunction of a joint, and found that "the specified criteria required of the listing were not demonstrated by the available medical evidence." Id. Further, the ALJ discussed section 1.04, disorders of the spine, and found that this listing required "the presence of a compromise of a nerve root" and that the "record is devoid of such evidence." Id. The ALJ found that "even if there was evidence of nerve root compromise, [Mr. Lewis] does not show motor loss, muscle weakness, [and] sensory or reflex loss." Id. Additionally, under listings 1.02 and 1.04, the ALJ found that Mr. Lewis did not have "an inability to ambulate effectively" as required by the listings and that he "ha[d] not met his burden of presenting medical evidence that supports such a finding." Id. Moreover, the ALJ explained that "[t]here [was] no listing criteria specific to the evaluation of obesity," but acknowledged that she was required to consider Social Security Ruling ("SSR") 02-1p in determining Mr. Lewis's RFC because "[o]besity may have an adverse impact upon co-existing impairments." Id. at 18-19. After considering all of Mr. Lewis's impairments, the ALJ stated that she "[could] find no evidence that the combined clinical findings from such impairments reach[ed] the level of severity contemplated in the listings." Id. at 19.
At step four of the sequential-evaluation process, the ALJ assessed Mr. Lewis's RFC. The ALJ found that Mr. Lewis had the "[RFC] to perform light work, as defined in 20 CFR 404.1567(b)," but was subject to the following limitations:
[Mr. Lewis] can occasionally lift, carry, push, and pull twenty pounds; frequently lift, carry, push, and pull ten pounds; stand or walk two hours in an eight-hour day; sit six hours in an eight hour day; alternate between sitting and standing position at will; occasionally operate foot controls bilaterally; occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; frequently balance and stoop; and never kneel, crouch, or crawl.Id.
In reaching the RFC determination, the ALJ considered all of Mr. Lewis's "symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence." Id. The ALJ concluded that Mr. Lewis's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, [his] 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." Id. at 24. Mr. Lewis reported "that he experiences pain in his feet, ankles, and knees, [he has the] ability to stand or walk for ten minutes, [he has] a need to switch position[s] when he [is] sitting, and a need to go one step at a time ambulating stairs." Id. at 19.
The ALJ found that the daily activities described by Mr. Lewis were inconsistent with his allegations of disabling symptoms and limitations. Id. When asked about his daily activities, the ALJ found that Mr. Lewis was not involved with meal preparation but was involved in household chores; he did not drive or participate in shopping for the family, but he could pay bills, count change, handle a savings account, manage stress well, and help care for his eight-year-old son. Id. When asked about the chores he was able to do, Mr. Lewis testified that "he washed dishes, cooked, vacuumed, swept, washed laundry, and cut the grass." Id. When asked about personal care, Mr. Lewis testified that "he was able to maintain personal care, including caring for [his] hair, shaving, toileting, and dressing and bathing, albeit with some help." Id. at 20. The ALJ noted that Mr. Lewis had gone to interviews, but Mr. Lewis testified that "he would not get hired because he was using orthopedic supports." Id. The ALJ also noted Mr. Lewis's December 17, 2015 visit to Wellspan Rehabilitation where Mr. Lewis reported that "he was ambulating independent of any assistive device" and was "independent with activities of daily living." Id. at 22.
The ALJ further found that Mr. Lewis's medical evidence failed to provide strong support for his allegations of disabling symptoms and limitations. Id. The ALJ considered Mr. Lewis's September 23, 2014 physical therapy evaluation where he appeared in no obvious discomfort, had no joint tenderness, and he had X-rays that showed "mild medial compartment narrowing and some minimal patellofemoral spurring." Id. The ALJ found that Mr. Lewis last attended physical therapy on October 7, 2014, had not contacted his therapist since that date, and was discharged on October 27, 2014. Id. The ALJ considered Mr. Lewis's visit with David Granger, D. P. M. ("Dr. Granger") on June 5, 2015, where Mr. Lewis had normal gait without an obvious limp and no apparent joint instability. Id. at 21. Further, the ALJ considered a visit Mr. Lewis had with Martin Foot and Ankle on June 13, 2015, where "he appeared healthy and well-developed with no signs of acute distress." Id. On July 17, 2015, Mr. Lewis "underwent right posterior tibial synovectomy, right achilles tendon lengthening, and right talonavicular joint fusion" with Dr. Granger, who reported that Mr. Lewis "was doing fairly well" during a follow-up on July 24, 2015. Id.
Additionally, the ALJ considered Mr. Lewis's visit with Dr. Granger on July 27, 2015, where Mr. Lewis was diagnosed with "osteoarthritis of the left knee, left knee quadriceps tendonitis, and posterior tibial tendon tendonitis." Id. At this visit, Mr. Lewis was given a cortisone injection, fitted for an ankle brace, and his walking boot was adjusted for proper fit. Id. The ALJ noted that when Mr. Lewis followed up with Dr. Granger on August 3, 2015, he reported that "he was 'doing very well,' and had no new complaints." Id. The ALJ also noted that Mr. Lewis saw Dr. Michael Moritz ("Dr. Moritz") on August 17, 2015, for right ankle pain, where Dr. Moritz found that "[Mr. Lewis's] foot looked 'terrific' with no swelling, redness, or erythema . . . and [that] the fusion looked 'terrific' with no sign of any anomaly of concern." Id.
Further, the ALJ considered Mr. Lewis's September 14, 2015, October 5, 2015, and November 3, 2015 appointments with Dr. Granger, where Mr. Lewis reported that he was doing very well with no new complaints. Id. The ALJ considered a Lower Extremity Functional Scale Mr. Lewis completed on December 7, 2015, where Mr. Lewis reported no difficulty "lifting objects from the floor, performing light activities around the home, walking two blocks, walking one mile, sitting for one hour, running on even ground, running on uneven ground, making sharp turns while running fast, and hopping." Id. The ALJ also considered Mr. Lewis's report that he had a little difficulty "getting in or out of the bath, walking between rooms, putting on shoes and socks, performing heavy activities around his home, getting in and out of the car, and going up or down one flight of stairs." Id. Moreover, the ALJ noted Mr. Lewis's April 6, 2016 diagnosis of a right foot and ankle sprain, his April 11, 2016 follow-up exam, and Dr. Granger's April 28, 2016 report, where Dr. Granger noted that Mr. Lewis was "doing reasonably well." Id. at 23.
The ALJ did not provide any weight to the opinion evidence of Dr. Granger, who opined on Mr. Lewis's restrictions on September 15, 2015 and October 5, 2015, because the restrictions "were all temporary post-operative restrictions." Id. Additionally, the ALJ rejected the disability determination explanation form (see id. at 79-86) completed by Daniel McClintock, because the form did not qualify as opinion evidence at the appeals level. Id. Further, the ALJ considered and provided some weight to the third-party function report submitted by Mr. Lewis's wife, Mandy Lewis, describing Mr. Lewis's limitations, and found that Ms. Lewis's statements were convincing but did not establish that Mr. Lewis was disabled. Id.
At step four of the sequential-evaluation process, the ALJ found that given Mr. Lewis's RFC, he was not capable of performing his past relevant work. Id. at 24. At step five, the ALJ found that based on Mr. Lewis's age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that Mr. Lewis could perform. Id. at 25. The ALJ noted that if Mr. Lewis had the RFC to perform the full range of light work, a finding of "not disabled" would be directed by Medical-Vocational Rules 202.21 and 202.14, but because Mr. Lewis is impeded by additional limitations, the ALJ relied upon testimony from the Vocational Expert ("VE") to determine if these limitations eroded the unskilled light occupational base. Id. Based upon the VE's testimony, the ALJ determined that Mr. Lewis is "able to perform the requirements of representative occupations" such as an assembler of electrical accessories, a bakery worker, a conveyor line worker, and a non-postal mail clerk, and that Mr. Lewis is "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." Id. at 25-26. Thus, the ALJ found that Mr. Lewis "has not been under a disability, as defined in the Social Security Act, from April 14, 2015, through the date of this decision." Id. at 26. Therefore, the ALJ rendered a finding of not disabled. Id. at 30.
The Dictionary of Occupational Titles (DOT) states that there are 117,000 positions for assemblers of electrical accessories, 151,000 positions for bakery workers on a conveyor line, and 128,000 mail clerk, non-postal positions available nationally. Id. at 25.
V. Discussion.
Mr. Lewis argues that "the ALJ erred by failing to obtain any medical opinion regarding [Mr. Lewis's] impairments" and that "the ALJ erred either by deeming her RFC finding a 'light' RFC at all, or by failing altogether to make a finding as to whether the light occupational base had been 'significantly reduced' by [Mr. Lewis's] significant standing/walking limitations." Doc. 15 at 5.
A. The ALJ Did Not Err by Failing to Obtain a Medical Opinion Regarding Mr. Lewis's RFC.
Mr. Lewis argues that the ALJ erred in formulating his RFC because the record did not contain any medical opinion regarding Mr. Lewis's limitations. Doc. 15 at 5, 9. Mr. Lewis argues that "only rarely can a decision regarding a claimant's RFC be made without an assessment from a physician regarding the functional abilities of the claimant." Id. at 8 (first citing Burnett, 220 F.3d at 121; then citing Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986)). Mr. Lewis further argues that "[t]he medical evidence is not clearly and undisputedly supportive of the ALJ's RFC finding." Doc. 15 at 7.
The Commissioner responds that an ALJ will assess Mr. Lewis's RFC based on all of the relevant evidence in his record and that "an ALJ is not required to base his RFC assessment on a medical opinion." Doc. 18 at 8-9. Further, the Commissioner argues that "[t]he decision to seek medical expert testimony or order a consultative examination is a discretionary decision left to the ALJ." Id. at 14 (quoting Webster v. Berryhill, No. 3:16-CV-02403, 2018 WL 1322066, at *6 (M.D. Pa. Jan. 22, 2018)). Moreover, the Commissioner argues that "the standard of review . . . is not 'clear and undisputedly supportive' evidence, it is the substantial evidence standard." Id. at 11. In his reply brief, Mr. Lewis reiterates his argument that the ALJ erred because she did not obtain a medical opinion of his limitations. Doc. 19 at 3.
An "ALJ is not precluded from reaching RFC determinations without outside medical expert review of each fact incorporated into the decision." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011). Additionally, "the regulations do not require ALJs to seek outside expert assistance" and "[t]he ALJ—not treating or examining physicians or State agency consultants—must make the ultimate disability and RFC determinations." Id. at 361-62.
Following Chandler, district court opinions in this circuit are split as to whether an RFC determination needs to be supported by a medical opinion. In Metzger v. Berryhill, Magistrate Judge Carlson acknowledged this split among district court decisions but reasoned that "when an ALJ fashions [an RFC] determination in the absence of any medical opinion evidence, courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence." Metzger v. Berryhill, No. 3:16-CV-01929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017).
The court adopted such a pragmatic view in Woodman v. Berryhill, No. 3:17-CV-0151, 2018 WL 1056401 (M.D. Pa. Jan. 30, 2018), where the claimant argued that the ALJ erred in prescribing an RFC for him without a medical opinion. Id. at *5. In Woodman, the court held that an ALJ's RFC determination was supported by substantial evidence despite the lack of any medical opinion evidence in the record. Id. The court upheld the ALJ's decision because there is no requirement that an ALJ consult a medical opinion, as long as the ALJ's decision is based upon all the facts and evidence in the record. Id.
Similarly, in Rodriguez v. Berryhill, No. 1:18-CV-0684, 2019 WL 2296582 (M.D. Pa. May 30, 2019), the court held that an ALJ's RFC determination was supported by substantial evidence where the ALJ relied on treatment records in the absence of a medical opinion. Id. at *2. The court upheld the ALJ's decision because an ALJ may rely upon other evidence or testimony regarding a claimant's activities when forming an RFC. Id,; see also, e.g., Nirka v. Colvin, No. 3:15-CV-2409, 2016 WL 3077359, at *13 (M.D. Pa. June 1, 2016) (holding that an ALJ's RFC determination was supported by substantial evidence when the ALJ did not consider a medical opinion but considered other evidence in the record); Cummings v. Colvin, 129 F. Supp. 3d 209, 215 (W.D. Pa. 2015) (same).
Here, Similar to Woodman and Rodriguez, in the absence of any treating source opinions, the ALJ considered Mr. Lewis's entire treatment history (see Admin. Tr. 19-24) and found that Mr. Lewis "described daily activities which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." Id. at 24. The ALJ determined that Mr. Lewis's activities undermined his claim of disability because she found that "[Mr. Lewis] performs his activities of daily living independently, and maintains a broad range of activities in home maintenance and upkeep." Id. The ALJ considered the entire record, including the medical evidence, the opinion evidence, and Mr. Lewis's testimony, as well as "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." Id. at 17-24. Thus, because the ALJ reviewed all the facts and evidence and explained what evidence she relied upon to support her conclusion, we find that the ALJ did not err by failing to obtain a medical opinion regarding Mr. Lewis's limitations.
B. The ALJ's Determination that Mr. Lewis Is Capable of a Limited Range of Light Work Is Not Supported by Substantial Evidence.
Mr. Lewis argues that the ALJ erred by finding him capable of a limited range of light work because the limitations that the ALJ found are only consistent with an RFC for sedentary work. Id. at 16. Mr. Lewis argues that "at the very least," his RFC falls between the light and sedentary exertional levels and therefore requires additional explanation and evaluation by the ALJ. Id. The Commissioner responds that the ALJ did not err because she did not find that Mr. Lewis could perform a full range of light work, but a reduced range, and that the ALJ complied with SSR 83-12 by procuring the testimony of a VE to assist her. Doc. 18 at 17-18.
Mr. Lewis's argument implicates the medical-vocational guidelines—commonly referred to as the "grid rules"—listed in 20 C.F.R. § 404, Subpart P, App'x 2. The grid rules "provide tables which direct a finding of 'disabled' or 'not disabled' using a person's RFC, age, educational level, and previous work experience." Ford v. Colvin, No. 1:14-CV-01046, 2015 WL 4608136, at *6 n.4 (July 31, 2015).
To apply the grid rules, an ALJ must first determine the maximum level of exertion a claimant can perform. For purposes of this inquiry, jobs are classified as either sedentary, light, medium, heavy, or very heavy. See 20 C.F.R. § 404.1567. According to the regulations, 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.Id. § 404.1567(a). 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.Id. § 404.1567(b). As used in the regulations, "occasionally" means "occurring from very little up to one-third of the time," while "frequent" means "occurring from one-third to two-thirds of the time." SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). A job is in the light category "when it requires a good deal of walking or standing," which is "the primary difference between sedentary and most light jobs." Id.
"If a claimant's RFC falls between two levels for which the Guidelines direct the same finding, the ALJ should apply the finding as directed." Ford, 2015 WL 4608136, at *7 (citing SSR 83-10, 1983 WL 31251, at *2). "If a claimant's RFC falls between two levels for which the Guidelines direct opposite findings, the ALJ must consider whether the claimant is slightly or significantly reduced in his or her ability to perform at the higher exertional level." Id. (citing SSR 83-10, 1983 WL 31251, at *3); accord Franklin v. Berryhill, No. 3:16-CV-02284, 2017 WL 2080196, at *9 (M.D. Pa. May 15, 2017).
Here, the ALJ determined that Mr. Lewis had the "[RFC] to perform light work, as defined in 20 CFR 404.1567(b)," but was subject to the following limitations:
[Mr. Lewis] can occasionally lift, carry, push, and pull twenty pounds; frequently lift, carry, push, and pull ten pounds; stand or walk two hours in an eight-hour day; sit six hours in an eight hour day; alternate between sitting and standing position at will; occasionally operate foot controls bilaterally; occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; frequently balance and stoop; and never kneel, crouch, or crawl.Admin. Tr. at 19. The ALJ also noted that Mr. Lewis was approaching advanced age for purposes of the grid rules, was unable to perform any past relevant work, and had a high school education. Id. at 24. The ALJ's determination that Mr. Lewis is capable of performing a limited range of light work is therefore outcome determinative under the grid rules because a person approaching advanced age who has a high school education and cannot perform any past relevant work would be considered disabled under the grid rules if his RFC was for sedentary work but would not be considered disabled if his RFC was for light work. See 20 C.F.R. § 404, Subpart P, App'x 2, tbl. 1, Rule 201.12; tbl. 2, Rule 202.13.
We agree with Mr. Lewis that the ALJ's determination that he has the RFC to perform a limited range of light work warrants remand. The problem with the ALJ's RFC determination is that the limitations she lists contradict one another. The ALJ states that Mr. Lewis can only stand or walk up to two hours in an eight-hour work day, but also states that Mr. Lewis can "frequently lift, carry, push and pull ten pounds." Id. As the Social Security Administration has made clear, "frequent lifting or carrying requires being on one's feet up to two-thirds of a workday." SSR 83-10, 1983 WL 31251, at *5. At the very least, the ability to frequently lift or carry ten pounds would require a claimant to be on his feet no less than one-third of the day—or two hours and forty minutes out of an eight-hour day. See id. (noting that "frequent" means "occurring from one-third to two-thirds of the time"). The limitations that the ALJ lists for Mr. Lewis are therefore inherently contradictory: she states that Mr. Lewis can only stand or walk for two hours in an eight-hour work day, but also states that he can frequently lift, carry, push or pull ten pounds, which would require him to be on his feet for at least two hours and forty minutes and possibly for as much as five hours and twenty minutes in an eight-hour work day.
Numerous federal courts have considered limitations that were indistinguishable from the limitations given in this case and have similarly determined that they were contradictory. See, e.g., Slade v. Comm'r of Soc. Sec., No. 17-CV-12684, 2018 WL 3827396, at *6 (E.D. Mich. July 6, 2018) (finding that the ALJ's RFC determination of a limited range of light work "fail[ed] to provide an accurate and logical bridge between the evidence and the result" where the ALJ found that claimant could stand or walk for up to two hours but could frequently lift or carry up to ten pounds); Ford, No. 1:14-CV-01046, 2015 WL 4608136, at *8 (D. Del. July 31, 2015) (finding that ALJ's limitation of plaintiff to two hours of standing or walking in an eight-hour work day "would conflict with Plaintiff's capability of being able to frequently lift at a high level"); Campbell v. Astrue, No. 09-CV-05356, 2010 WL 4689521, at *5 (E.D. Pa. Nov. 2, 2010) ("There is thus an inherent contradiction between the ALJ's finding that Campbell could frequently lift or carry 10 lbs. . . . and his finding that Campbell had the capacity to perform work requiring standing or walking for no more than one to two hours in an eight hour work day." (internal quotation marks omitted)). See also, e.g., Betanco v. Berryhill, No. 17-CV-01709, 2018 WL 3490786, at *3-5 (C.D. Cal. July 19, 2018); Saeed v. Berryhill, No. 16-CV-11928, 2018 WL 1243953, at *11 (D. Mass. Mar. 9, 2018); Wilkerson v. Comm'r of Soc. Sec., 278 F. Supp. 3d 956, 974 (E.D. Mich. Sept. 28, 2017); Franklin v. Berryhill, No. 3:16-CV-02284, 2017 WL 2080196, at *11 (M.D. Pa. May 15, 2017) (Conaboy, J.); Riley v. Colvin, No. 3:13-CV-01223, 2014 WL 4796602, at *7-8 (M.D. Pa. Sept. 26, 2014) (Carlson, J.).
The Commissioner urges us to rely on a number of cases in this circuit where courts upheld an ALJ's determination that a claimant could perform a limited range of light work despite being limited to two hours of standing or walking. See doc. 18 at 17. Most notably, in Young v. Astrue 519 F. App'x 769, 770 (3d Cir. 2013), the Third Circuit upheld an ALJ's determination that a claimant could perform a narrow range of light work with limitations that were indistinguishable from those in the present case—two hours of standing or walking with frequent lifting of up to ten pounds. See id. at *2. The Commissioner also relies on Ambrose v. Colvin, No. 3:14-CV-01618, 2015 WL 877790 (M.D. Pa. Mar. 2, 2015) (Nealon, J.)—another case in which the claimant was limited to two hours of standing or walking with frequent lifting of up to ten pounds. In Ambrose, Judge Nealon relied on Young in upholding the ALJ's RFC determination, noting that Young stands for the proposition that a claimant who is limited to no more than two hours of standing or walking can perform a limited range of light work. Id. at *15. Finally, the Commissioner relies on Elliot v. Comm'r of Soc. Sec., 295 F. App'x 507, 508 (3d Cir. 2008), another case in which the Third Circuit upheld a finding that a claimant could perform a limited range of light work despite being limited to no more than two hours of standing or walking in an eight-hour work day.
While we acknowledge the cases cited by the Commissioner, we do not find them persuasive in the instant case. As Judge Conaboy noted in declining to rely on Young in his opinion in Franklin, "Young involved a pro se plaintiff who did not raise the arguments raised here." Franklin, 2017 WL 2080196, at *10. Furthermore, because "the Third Circuit 'steadfastly attempts to discourage[] District Courts from relying on nonprecedential opinions,'" both Young and Elliot should be given "equal persuasive weight" to contrary district court opinions in this circuit, including Ford, Campbell, Franklin, and Riley. See id. Finally, and most importantly, we find that Young, Ambrose, and Elliot are not persuasive because none of them considered the inherent contradiction between a claimant being limited to two hours of standing and walking and being able to frequently lift up to ten pounds. See, e.g., Betanco, 2018 WL 3490786, at *4 (declining to follow cases cited by Commissioner because the cases did not consider contradiction between claimant being limited to two hours of standing and walking but being able to frequently lift objects).
As previously noted, whether Mr. Lewis is limited to light work or sedentary work is outcome determinative on the issue of whether he is disabled. The ALJ's determination that Mr. Lewis is capable of performing a limited range of light work therefore warrants remand because it is based on limitations that contradict one another. On remand, the ALJ should consider the inherent contradiction between a finding that Mr. Lewis is only capable of standing or walking up to two hours and a finding that Mr. Lewis can frequently lift or carry up to ten pounds.
VI. Recommendation.
For the foregoing reasons, we recommend that the Commissioner's decision denying Mr. Lewis benefits be vacated and remanded to the Social Security Administration for further proceedings. The parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 6th day of August , 2019 .
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge