Opinion
Civil Action 1:21-cv-063
07-05-2022
DAKOTA MORRISON, Plaintiff, v. KILOLO KIJAKAZI,[1]Acting Commissioner of Social Security, Defendant.
MANNION, D.J.
REPORT AND RECOMMENDATION
PETER E. ORMSBY UNITED STATES MAGISTRATE JUDGE
Plaintiff Dakota Morrison filed this action pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's denial of child and adult Supplemental Security Income (SSI) benefits. Morrison claims he became disabled at age 17 principally due to diabetes and depression. An Administrative Law Judge (ALJ) found that Morrison is not disabled because he can perform certain sedentary jobs. Morrison contends that the ALJ erred in rejecting the only medical opinion evidence, failing to order a consulting medical exam, and failing to properly consider his testimony about his condition.
A federal court may review the Commissioner's denial of benefits only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence; a court may not re-weigh the evidence or substitute its judgment for the Commissioner's. See 42 U.S.C. § 405(g); see also Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2008). After carefully considering the record in the context of this deferential standard of review, the undersigned concludes that the ALJ erred by refusing to proceed with a scheduled supplemental hearing to obtain medical expert testimony. Under the circumstances here, the ALJ needed guidance from a medical expert to appropriately interpret the medical records for Morrison's diabetes treatment, which included eight hospitalizations occurring after the state medical consultants rendered their initial opinion that he had no severe impairments. Because there was no other medical opinion evidence, the ALJ's decision lacked substantial evidence. Accordingly, for the reasons discussed further below, it is recommended that the Commissioner's decision be vacated and remanded.
This matter has been referred to the undersigned magistrate judge to prepare a report and recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
I. BACKGROUND
On October 19, 2017, Plaintiff Dakota Morrison applied for SSI under Title XVI of the Social Security Act. (See Tr. 16, 836-38.) He initially alleged he became disabled about six months earlier, on April 30, 2017, but he later amended the disability onset date to October 17, 2017. He turned 18 years old about a month after the amended onset date. Morrison listed the following conditions that limited his ability to work: uncontrolled diabetes type 1, depression, borderline high blood pressure, and a large mass on his arm. (Tr. 860.)
The Commissioner has filed a transcript of the record of the administrative proceedings (Doc. 14), which will be cited as “Tr.” The page numbers refer to the numbers in bold typeface located in the bottom right corner of the transcript pages. Throughout this report, “Doc. ” refers to the docket entry numbers assigned by the Court's electronic filing system (CM/ECF). Page cites included with docket numbers (“at ”) refer to the electronically assigned page numbers found on the top right of each page.
Morrison's applications were denied initially on April 10, 2018. He then requested a hearing, which was held on April 24, 2019, before Administrative Law Judge Theodore Burock. The ALJ later set a supplemental hearing to take medical expert testimony, which was convened briefly on January 9, 2020, and continued to April 22, 2020. (See Tr. 16, 87-92, 771-73, 794-98.) Ultimately, the ALJ determined that the supplement hearing should not proceed, and the medical expert (though present by phone) did not testify. (See Tr. 16-17, 79-85.) The ALJ issued a written decision on May 6, 2020, finding Morrison was not disabled because he was able to perform a limited range of sedentary work that encompassed jobs existing in significant numbers in the national economy. (Tr. 26-30.)
The circumstances relating to the supplemental hearing will be described in more detail later in this report.
Morrison requested the Social Security Administration's Appeals Council to review the ALJ's adverse decision. The Appeals Council denied review, rendering the ALJ's decision the Commissioner's final decision for purposes of judicial review. In considering Morrison's challenge to the ALJ's decision, the evidence in the record will be summarized as it relates to the issues raised. In this case, those issues also implicate procedural aspects of the administrative proceedings, which will also be described.
The Court must “scrutinize” the record to determine whether the ALJ's decision is supported by substantial evidence. Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003) (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981)). The undersigned has thoroughly reviewed the medical records and other evidence. In this report, the record will be summarized to the extent it may be helpful in providing context for the issues Plaintiff raises.
A. Education, Work Experience, and Activities
Morrison turned 18 years old about a month after filing his disability applications. He was 6' 3” tall and weighed 290 pounds. He was raised by his grandparents and lived with them. His grandmother, Sharon Fry, helped him file his applications and fill out the needed forms. Morrison's mother apparently also lived with his grandparents (at least at times) and often accompanied him on medical visits.
Ms. Fry completed a “Function Report,” dated March 8, 2018, which described her grandson's conditions and activities. (Tr. 875-82.) Describing his daily activities, she said he “checks his sugar[,] makes breakfast[,] plays football with his younger brother[,] and plays [video] games.” (Tr. 878.) Morrison's ability to play sports has been limited when “his sugar drops too low sometimes.” (Tr. 878.) He makes his own meals and does some chores, including taking out the trash and feeding their dogs. (Tr 879.)
In explaining how his conditions limit his ability to work, Ms. Fry stated: “He has a lot of anger and depression.” (Tr. 877.) Morrison's endocrinologist referred him for psychiatric treatment because “he is struggling with his diagnosis of type 1 diabetes.” (Tr. 875.) Ms. Fry emphasized that Morrison was “hospitalized twice for DKA [diabetic ketoacidosis],” once in May 2017 and again in December 2017. (Id.) Though she did not know it at the time, he was hospitalized many more times in the coming months.
B. The Medical Evidence
In listing the conditions that limited his ability to work, Morrison included “uncontrolled diabetes type 1,” “depression,” “borderline high blood pressure,” and “large mass on arm.” (Tr. 861.) His medical records also reflect other medical conditions such as osteochondroma (benign tumor), neck mass, allergic rhinitis, and hearing loss. (See Tr. 21.) Consistent with the issues Morrison raises here, this summary of the medical evidence will focus on his diabetes and, to a lesser extent, his depression.
1. Medical Records on File Prior to the Initial Disability Determination
Morrison was first diagnosed with diabetes after being admitted to the UPMC Pinnacle (UPMC) hospital in Harrisburg, Pennsylvania, on May 14, 2017. (Tr. 962.) The discharge summary noted that Morrison had been well until about a month before, when he began having flu-like symptoms. (Id.) After becoming increasingly weak, he was brought to the emergency room, where he was diagnosed with diabetic ketoacidosis (DKA) associated with a new onset of type 1 diabetes mellitus (DM). (Id.) Morrison was admitted into the hospital with a blood glucose level of 479, which is very high. (Id.) His condition was “poor.” (Tr. 964.) After receiving treatment (including insulin), Morrison's blood sugar level was reduced to 140 by the next day, and he was released in good condition. (Tr. 963-64.)
The Center for Disease Control and Prevention (CDC) has described type 1 diabetes as follows:
If you have type 1 diabetes, your pancreas doesn't make insulin or makes very little insulin. Insulin helps blood sugar enter the cells in your body for use as energy. Without insulin, blood sugar can't get into cells and builds up in the bloodstream. High blood sugar is damaging to the body and causes many of the symptoms and complications of diabetes.
Type 1 diabetes was once called insulin-dependent or juvenile diabetes. It usually develops in children, teens, and young adults, but it can happen at any age.
Type 1 diabetes is less common than type 2-about 5-10% of people with diabetes have type 1.See https://www.cdc.gov/diabetes/basics/what-is-type-1-diabetes.html (last visited June 12, 2022). The information from the CDC is provided simply as background to aid in understanding the medical records.
According to the CDC, “[a] fasting blood sugar level of 99 mg/dL or lower is normal.” See https://www.cdc.gov/diabetes/basics/getting-tested.html (last visited June 12, 2022). For a random blood sugar test, “[a] blood sugar level of 200 mg/dL or higher indicates you have diabetes.” Id.
As reflected by multiple medical reports in the record, Morrison's medical providers seem to use the terms blood sugar level and blood glucose level interchangeably in this context. Those terms will also be used interchangeably in this report.
The discharge report noted that Morrison was well-developed, well-nourished, alert, and in no distress. (Tr. 963.) His range of motion was normal. As to his “psychiatric” condition, Morrison had a “flat affect.” (Id.)
The day after his hospital discharge, on May 16, 2017, Morrison made an outpatient visit to Penn State Health Milton S. Hershey Medical Center (MSHMC), accompanied by his mother and grandmother. (See Tr. 1019-34.) He was given detailed “new onset diabetes education.” (Tr. 1024-27.) Dr. Ying T. Chang examined Morrison and noted that he had been admitted to the hospital after the emergency room found DKA. (Tr. 1028.) Dr. Chang observed that Morrison was “[a]ert, active, not in acute distress.” (Tr. 1029.) However, his A1C level that day was very high at 13.8, and his “urine has large ketone.” (Tr. 1030.) Dr. Chang prescribed medication and discussed a treatment plan. Morrison was scheduled for follow-up appointments over the next several months.
As described by the CDC:
Diabetic ketoacidosis (DKA) is a serious complication of diabetes that can be life-threatening. DKA is most common among people with type 1 diabetes. People with type 2 diabetes can also develop DKA.
DKA develops when your body doesn't have enough insulin to allow blood sugar into your cells for use as energy. Instead, your liver breaks down fat for fuel, a process that produces acids called ketones. When too many ketones are produced too fast, they can build up to dangerous levels in your body.See https://www.cdc.gov/diabetes/basics/diabetic-ketoacidosis.html (last visited June 12, 2022).
The CDC provides the following description of A1C:
The A1C test-also known as the hemoglobin A1C or HbA1c test-is a simple blood test that measures your average blood sugar levels over the past 3 months. It's one of the commonly used tests to diagnose prediabetes and diabetes, and is also the main test to help you and your health care team manage your diabetes. Higher A1C levels are linked to diabetes complications, so reaching and maintaining your individual A1C goal is really important if you have diabetes.See https://www.cdc.gov/diabetes/managing/managing-blood-sugar/a1c.html (last visited June 12, 2022). According to the CDC: “A normal A1C level is below 5.7%, a level of 5.7% to 6.4% indicates prediabetes, and a level of 6.5% or more indicates diabetes.” Id.
During those follow-up visits in June, July, and August 2017, Morrison received additional diabetes treatment education, and his condition was monitored. For example, Morrison returned to MSHMC with his mother and grandmother on July 5, 2017. (Tr. 1013-17.) The three received further diabetes education. Registered Nurse Maryellen Schultze noted that Morrison's blood sugar readings had “mostly [been] in range with some in the hyperglycemia range due to ‘sneaking food.'” (Tr. 1016.) He was “not interactive during class” and “not very willing to talk” with the nurse. (Id.)
On October 3, 2017, Morrison visited the MSHMC outpatient clinic with his mother and grandmother as a follow-up for “[u]ncontrolled type 1 diabetes mellitus.” (Tr. 991, 997.) Anita Lugo, CRNP, noted that Morrison's “health has been good,” and since his last visit he “has had no major illnesses, no emergency department visits, and no severe hypoglycemia requiring the assistance of another person.” (Tr. 991.)
However, testing done that day showed that his A1C was 10.0. (Tr. 998.) This was high, as shown by the noted normal reference range of “4.0 - 6.0.” (Tr. 988, 998; see also supra n.10.) An “abnormal result note” was entered in Morrison's file. (Tr. 988.) CRNP Lugo noted that Morrison's “[d]iabetes in in poor control,” which was likely “due to poor compliance with BG checking and insulin dosing.” (Tr. 994.) She gave him instructions and goals, advising him to contact them if his blood glucose level was “consistently above 200 or below 70.” (Tr. 995.)
About two and a half months later, on December 19, 2017, Morrison went to the emergency department at UPMC in Harrisburg, complaining of nausea and vomiting. (Tr. 1139.) He had measured his blood glucose level to be “300+.” (Id.) He was admitted to the hospital with elevated ketones, evidencing DKA. (Id.; see also supra n.9.) His A1C level was 11.7%. (Tr. 1148.) Morrison claimed that he was complying with blood glucose monitoring and insulin therapy. (Tr. 1146.) The attending physician's diagnosis was “[d]iabetic ketoacidosis without coma associated with type 1 diabetes mellitus (HCC).” (Tr. 1142.) Morrison remained in the hospital three days. The discharge report noted that his DKA had resolved; he was alert and in no distress, but his affect was flat. (Tr. 1147.) He was directed to follow up with outpatient treatment at the endocrinology clinic. (Tr. 1146.)
Morrison did so about two and a half months later, on March 8, 2018, when he visited UPMC's endocrinology clinic in Harrisburg, along with his mother and grandmother. (Tr. 1159-63.) Chelsea Lugone, CRNP, noted: “Not checking blood sugars daily[;] blood sugars ranging 60s to 300s.” (Tr. 1159.) She also reported: “Most recent A1c 11.7% - indicative of poor glycemic control.” (Id.) Morrison denied missing his medication doses. (Id.)
Morrison shared that he was depressed and did not want to talk to anyone. (Tr. 1160-61.) Morrison's mother and grandmother said he was not communicating well and had a lot of anger regarding his type 1 diabetes diagnosis. (Tr. 1161.) CRNP Lugone “strongly encouraged” Morrison to consider wearing a Dexcom sensor to aid him in monitoring his blood sugar levels. (Id.) She “[s]tressed the importance of monitoring blood sugars,” and she gave him further instructions on his diabetes management. (Tr. 1161-62.) She also referred Morrison to a behavioral health specialist regarding his depression. (Tr. 62.)
The U.S. Food and Drug Administration described the Dexcom device in a 2018 announcement approving its use:
The Dexcom G6 is a patch device, about the size of a quarter, that is applied to the skin of the abdomen and contains a small sensor that continuously measures the amount of glucose in body fluid. The device transmits real-time glucose readings every five minutes to a compatible display device such as a mobile medical app on a cell phone and will trigger an alarm when a patient's blood sugar enters a danger zone soaring too high or dropping too low.See https://www.fda.gov/news-events/press-announcements/fda-authorizes-firstfully-interoperable-continuous-glucose-monitoring-system-streamlines-review (last visited on June 9, 2022).
2. The Initial Disability Determination
On April 10, 2018, state agency medical consultant Michael J. Brown, D.O., conducted a medical evaluation as part of the initial disability determination. (Tr. 679-89.) Dr. Brown summarized Morrison's medical records from January 2017 through March 2018, noting (among other things) his hospitalizations in May and December 2017 for “DM DKA.” (Tr. 680-81, 683-84.) Based on those records, Dr. Brown concluded that Morrison “has a minimal impairment from DM [diabetes mellitus] and left arm issues.” (Tr. 681.) Dr. Brown found that Morrison has two medically determinable impairments: diabetes mellitus and “depressive, bipolar and related disorders.” (Tr. 684.) However, he further opined that Morrison did not have a combination of impairments that was severe. (Id.) Dr. Brown's report notes that no residual functional capacity assessments were performed. (Tr. 687.)
Another state agency medical consultant, Edward Jonas, Ph.D. (Psychology), also reviewed Morrison's medical records regarding his mental health issues. (See Tr. 681-85.) Although noting that Morrison had reported some depression, Dr. Jonas pointed out that Morrison was not receiving mental health treatment and concluded that his depression was non-severe. (Tr. 685.) Based on the findings of Dr. Brown and Dr. Jonas, as well as the other evidence in the record, Morrison was found not disabled. (Tr. 687.)
3. Additional Pre-Hearing Medical Evidence
Significant additional medical evidence was received and made part of the record after the initial disability determination and before the evidentiary hearing. That evidence-which was not available to the state agency consultants-is summarized as follows.
On March 29, 2018, Morrison returned to the UPMC endocrinology clinic and met again with CRNP Lugone. (Tr. 1256-60.) As with his visit several weeks earlier, his A1c was high: “Most recent A1c 10.5% - indicative of poor glycemic control.” (Tr. 1256.) Again, Morrison was “[n]ot checking blood sugars daily.” (Id.) However, Morrison had agreed to wear a Dexcom device, and he was scheduled to meet with a nurse educator to get that started. (Tr. 1258.) He was “making better efforts” to manage his diabetes and was encouraged to continue on that path. (Id.)
Although this visit occurred about ten days before the initial disability determination, it appears that the medical report was not submitted until much later and was not considered in making the initial denial. (See Tr. 1256 (showing record faxed on April 5, 2019).)
About two months later, on May 25, 2018, Morrison visited his primary care provider at the Family Practice Center, PC (FPC). He went there with his mother to get help for his depression. (Tr. 1411.) He also reported anger outbursts and irritability. Donald D. Dangle, D.O., observed that Morrison appeared healthy, alert, and oriented. Dr. Dangle diagnosed Morrison with “[m]ajor depressive disorder, single episode, mild” and prescribed a “low dose” of an antidepressant, Fluoxetine. (Tr. 1412.)
Morrison returned to the FPC about a month later, on June 18, 2018. (Tr. 1414-15.) Morrison wanted his Fluoxetine dose increased because nothing had changed, and he did not “feel a difference.” (Tr. 1414.) Dr. Dangle increased Morrison's Fluoxetine dose. (Tr. 1415.)
Three months later, on September 16, 2018, Morrison again went to the emergency department at UPMC. (Tr. 1269-72.) He woke up that day feeling sick and vomited twice. He checked his ketone level and found it was elevated. The emergency department physician noted Morrison's history of DKA and decided he would be admitted to the hospital if DKA was found. Morrison's glucose level was measured at 402. Morrison was later admitted him to the hospital after he was found to be “in DKA.” (Tr. 1271.) This was to be the first of Morrison's six diabetes-related hospitalizations over a period of a little over four months.
Morrison remained in the hospital two days. (Tr. 1272-76.) He was treated with an insulin drip and ultimately discharged when his condition became stable. On discharge, Morrison was instructed to follow up with the endocrinology clinic to discuss the use of an insulin pump. (Tr. 1274.)
Within a month, however, Morrison was back at the UPMC emergency department, reporting that his blood sugar level was over 400 and he was feeling weak. (Tr. 1276.) Morrison's glucose level was measured at 482, and he was admitted to the hospital with a diagnosis of “[u]ncontrolled type 1 diabetes mellitus” and “DKA, type 1 (HCC).” (Tr. 1279.) Morrison “did well during the hospitalization,” and his “blood sugars improved.” (Tr. 1281.) He was discharged after two days and directed to follow up with his family doctor. (Tr. 1279-85.)
Apparently before he could do that, Morrison was again brought to the UPMC emergency department on November 17, 1918. (Tr. 1285-89.) Morrison reported that his blood sugars had been rising over the past several days; he woke up feeling nauseas and vomited in the ambulance on the way to the hospital. (Tr. 1286.) He admitted that he forgot to take his insulin the previous night. (Tr. 1286, 1288.) Morrison was admitted to the hospital with a diagnosis of DKA and released the next day after his blood sugar level stabilized. (Tr. 1289-93.)
Just nine days later, however, Morrison was back at the UPMC emergency department. (Tr. 1293-97.) He reported feeling unwell that morning, and his urine test was positive for ketones. Morrison was admitted to the hospital with a diagnosis of DKA and uncontrolled type 1 diabetes. (Tr. 1298-1302.) He was released the next day after his blood sugar level stabilized with IV fluids. (Tr. 1301.)
Unfortunately, Morrison was back at the emergency room about two weeks later, on December 15, 2018. (Tr. 1302-10.) He reported abdominal pain and nausea, with blood sugar levels running high into the 400s. (Tr. 1303.) The attending emergency department physician, Dr. Gerald Edward Fronko, noted that Morrison was “a poorly compliant diabetic” who had been to the hospital frequently with DKA. (Tr. 1302.) Dr. Fronko indicated that Morrison's “DKA is likely a consequence of his noncompliance.” (Tr. 1309.) The doctor admitted him to the hospital's intensive care unit “in guarded condition.” (Id.)
Morrison was discharged three days later in stable condition after receiving treatment in the ICU unit, including intravenous insulin and fluids. (Tr. 1310-14.) As noted in the discharge summary, his hospital diagnosis was again uncontrolled diabetes and DKA. (Tr. 1310.)
About six weeks later, on January 25, 2019, Morrison returned to the emergency department. He had been vomiting and his blood sugar level was elevated. (Tr. 1314-19.) His mother reported that her son “takes his insulin regularly and faithfully,” and he had taken his evening dose the night before, as well as his dose that morning. (Tr. 1314.) Morrison also insisted that he had been in “strict compliance with his insulin regimen.” (Tr. 1321.) The attending doctor noted that Morrison appeared “uncomfortable” and “mildly confused.” (Tr. 1317.) Morrison was admitted to the hospital in “poor” condition with a diagnosis of DKA; his blood glucose level reached 526. (Tr. 1318-19, 1321.) This time he was in the hospital for nine days, in part due to complications caused by an abdominal infection. (Tr. 1321-22, 1324.)
A few days after being discharged from the hospital, on February 7, 2019, Morrison visited Dr. Dangle at FPC. (Tr. 1421-23.) Morrison's mother said he was “checking blood sugars daily” and “taking all medications as prescribed.” (Tr. 1421.) She also requested that he “get restarted on antidepressant.” (Id.) Dr. Dangle noted that Morrison was removed from counseling with Diakon due to missed appointments. (Id.) Dr. Dangle also noted that Morrison was scheduled to see a diabetes educator at UPMC on February 11 to discuss an insulin pump implant and scheduled to visit the endocrinology clinic on February 25. (Tr. 1420-21.)
On February 25, 2019, Morrison was seen by Jose Galindo, M.D., at the UPMC endocrinology clinic. (Tr. 1450-58.) Dr. Galindo noted that Morrison was waiting for an upgrade to his Dexcom monitor and in the meantime “does not check blood sugars regularly.” (Tr. 1450.) After Morrison's mother advised that he would soon be on an insulin pump, Dr. Galindo warned that an “insulin pump does not cure the diabetes.” (Tr. 1450.) Morrison was told to return in three months or sooner if he was placed on an insulin pump. (Tr. 1459.) As will be seen, he did not do so, although he received other treatment.
C. The Evidentiary Hearing
The ALJ held the hearing on April 24, 2019. (Tr. 37-77.) Three witnesses testified: Morrison, his grandmother, Sharon Fry, and a vocational expert, Andrew Caporale. Morrison was represented by counsel.
Morrison was 19 years old at the time of the hearing. He had been working on his twelfth-grade studies in “cyber school,” which is a type of online education. (Tr. 42.) He had left public school because he was being bullied. Morrison was also expelled from cyber school at one point for missing assignments, but he explained this was “mostly because [he] was in the hospital a lot” and sick a lot. (Tr. 43.) He did schoolwork four to five hours a day.
In addition to his studies, Morrison does some chores around the house, plays catch with his brother, and plays video games. (Tr. 49-50.) However, after about 30 minutes of passing a football, his “sugar just drops really low” and he gets “very weak, very tired.” (Tr. 54.)
Morrison explained that his activities and physical abilities are limited by his diabetes. Sometimes he got “dizzy just out of completely random” and sometimes he would “just randomly trip over nothing.” (Tr. 49.) He could “lift up some pretty heavy objects,” but he usually needs help. (Id.)
To address his diabetes, Morrison measures his blood sugar level and takes insulin. Back in 2017 after he was first diagnosed with diabetes, he had problems with the correct insulin dosage because it was “kind of new” to him. (Tr. 53.) He also acknowledged missing his insulin on occasion and failing to take blood sugar readings as often as he should; for example, the night before one of his hospital admissions, he had fallen asleep and missed his evening dose of insulin. (Tr. 5152.) But Morrison maintained that he had been measuring his blood sugar levels and taking the correct amount of insulin for “a good while now, couple months.” (Tr. 52-53.)
Even when he takes the correct dose of insulin, “[p]retty much every day” he still has high blood sugar readings “[a]bove 300 and get[ing] close to 400 as well,” although “some days” he is “just around 200.” (Tr. 53-54.) When his blood sugar level gets close to 400, he has “a big, like a major headache” and feels like he does not want to do anything. (Tr. 54.) Usually his blood sugar level “starts off the day really high,” and he slowly works his way to get it back to a normal level. (Tr. 45.)
Some days he could not get it back to normal. Morrison described his symptoms on the occasions when he went to the emergency room: “I feel very weak, like I can barely move at all, constant puking, throwing up, dehydration.” (Tr. 51.) These symptoms usually happen as he is waking up. On these occasions, his blood sugar level rises to “400 to 500.” (Tr. 51.)
To help insure he was getting the proper insulin dosage, Morrison had an insulin pump implanted about a month before the hearing. (Tr. 45-46.) Even with the insulin pump, though, Morrison still had blood sugar readings above 400. (Tr. 56.)
Regarding his depression, Morrison feels like he is “fighting” himself every day; he wakes up feeling worthless and unmotivated. (Tr. 46-47.) He had been taking medication for depression and switched to a new medication a few months earlier. The new medication helped his depression “a little bit.” (Tr. 47.) Morrison had recently been referred to a psychiatric clinic (Diakon), but he was “dropped” from that program. (Tr. 47-48.) Morrison explained: “I think I missed an appointment because my mom was sick.” (Tr. 48.)
Morrison's grandmother, Ms. Fry, explained that her grandson had been living with her since he was five. (Tr. 59.) Morrison's mother had also lived there at one point but not for several years. Morrison helps Ms. Fry around the house, takes out the trash, and helps with their dogs. (Tr. 59.) His other activities include playing football with his brother, playing video games, and listening to music. (Tr. 64.)
As to school, Morrison left high school because he was bullied, so she enrolled him in cyber school. He was “doing good,” but then “he got sick with diabetes and he got way behind and they kicked him out.” (Tr. 62.) She then enrolled him in another online school (Reach Academy).
Since 2017 when her grandson was diagnosed with diabetes, Ms. Fry has often seen the symptoms from his diabetes, including dizziness and shakiness. (Tr. 6566.) Up to the time of the hearing, his blood sugar levels had “been running high a lot,” including every day that week. (Tr. 66.)
The first time she called an ambulance, Morrison went into DKA and his blood sugar “was way up over 400.” (Tr. 67-68.) He was “so bad and so weak that he couldn't even stand to take a shower.” (Tr. 67.) As to Morrison's later hospitalizations, once ketones showed up in his urine, he went to the hospital because once it starts, “it's pretty dangerous when it gets in there.” (Tr. 70.)
Ms. Fry rejected the suggestion that her grandson had to go to the emergency room due to his noncompliance in measuring his blood sugar levels and taking his insulin. (Tr. 68-69.) She noted that part of his problem was that towards the end of the month they were low on food and getting the right amount of carbs was hard. (Tr. 69.) Ms. Fry also noted that that figuring out the right amount of carbs to eat was easier with the insulin pump. (Id.) But even with the pump “running really high,” Morrison's blood sugar level remained high the day of the hearing. (Tr. 72.)
The final witness was the vocational expert, Mr. Caporale. The ALJ asked if any jobs would be available for a hypothetical individual with Morrison's education and work experience who had the functional capacity for sedentary work with the following additional limitations: “limited to routine, repetitive tasks, no public interaction, occasional interaction with coworkers and supervisors, occasional change in work setting, no exposure to unprotected heights or dangerous equipment.” (Tr. 74.) Mr. Caporale identified several available jobs, including table worker, waxer, and carding machine operator. (Tr. 74-75.)
In response to questions from the ALJ and Morrison's counsel, Mr. Caporale advised that no jobs would be available to the hypothetical individual in the following scenarios: he was restricted to “sitting four, walking one, standing one in eight hours”; he would be off task more than 15% of a work day; he would be absent more than 1.3 days per month; and he would need the flexibility to lie down for 50 minutes to recover from an abnormally high blood sugar reading. (Tr. 75-76.)
In concluding the hearing, the ALJ announced that he would hold the record open for 60 days to receive additional evidence he had requested during the hearing. Specifically, the ALJ had directed Morrison's counsel to submit the following: school records (high school, cyber school, and Reach Academy); medical records regarding the insulin pump; mental health records (from Diakon); a hospital “psych” evaluation; and medical records from an upcoming endocrinologist appointment. (See Tr. 44, 46, 48-49, 57, 62, 64, 77.)
D. Additional Post-Hearing Medical Evidence
As instructed, Morrison's counsel submitted additional evidence after the hearing. (Tr. 912, 914.) The new evidence included the records from Morrison's abbreviated mental health treatment with Diakon. (Tr. 1425-46.) In addition, counsel submitted a new medical treatment record from the UPMC endocrinology clinic dated July 22, 2019. (Tr. 1470-77.) Dr. Galindo noted that Morrison had not been to the clinic since February 2019. (Tr. 1474.) The download from Morrison's insulin pump showed that his average blood sugar level was 190, with a range of 36289. (Id.) The doctor noted that Morrison “does not check blood sugars regularly,” apparently again because he was still waiting for a Dexcom monitor upgrade. (Tr. 1475.) The doctor again “warned him and family that the insulin pump does not cure the diabetes and requires even more intensive self manage[ment].” (Id.)
After submitting those additional records, Morrison's counsel wrote to the ALJ on August 5 and August 26, 2019, to advise that the record was complete and that the ALJ could issue his ruling. (Tr. 917, 919.)
F. The Supplemental Hearings and More New Evidence
Rather than issuing a ruling, on October 28, 2019, the ALJ sent a notice of a supplemental hearing set for January 9, 2020. (Tr. 742-47.) The ALJ informed Morrison that he could submit additional evidence, “such as recent records, reports, or evaluations.” (Tr. 744.)
Morrison's counsel submitted an additional medical record on November 27, 2019. (Tr. 1478.) It was Dr. Galindo's treatment notes for Morrison's visit to the endocrinology clinic on October 7, 2019. (Tr. 1479-82.) Significantly, as noted in Dr. Galindo's report, Morrison had been recently “hospitalized on 9/10/2019 and again on 9/27/2019 with DKA.” (Tr. 1479.) Dr. Galindo discussed Morrison's condition and recommended treatment plan.
On December 9, 2019, the ALJ sent an “Amended Notice of Hearing” regarding the January 9, 2020, supplemental hearing. (Tr. 767-69.) The amended notice advised Morrison that “[a] medical expert will appear at the hearing by telephone.” (Tr. 769.) The ALJ also sent a letter to Kweli J. Amusa, M.D., requesting Dr. Amusa “to appear [by phone] and give testimony as a medical expert” at the January 9, 2020, hearing. (Tr. 783-86.) The ALJ advised Dr. Amusa that all the medical evidence in the record was being provided to him and was also available online. (Tr. 783.) The doctor was instructed to have that evidence available for the hearing. (Id.) The record includes a copy of Dr. Amusa's resume, which reflects he had extensive experience and certifications in internal medicine and urgent care. (Tr. 1519-22.)
1. The First Supplemental Hearing and Yet More New Evidence
The first supplemental hearing was held as scheduled on January 9, 2020. (Tr. 89-92.) The ALJ announced that he had arranged for a vocational expert and Dr. Amusa to appear by phone, but “neither of which is going to be contacted because we're not going to do the hearing today.” (Tr. 89.) The ALJ noted that Morrison's counsel had updated the record with the October 7, 2019 treatment notes, which referred to two new hospitalizations. (Id.) The ALJ wanted to see the records of the hospitalizations, as well as any subsequent visits to the endocrinology clinic, family doctor visits, and any other new records. As the ALJ explained: “I want all of that so that the doctor, medical expert will have a complete record.” (Tr. 90.) The ALJ gave counsel 30 days to submit those documents and indicated a new hearing date would be issued.
On February 6, 2020, the ALJ notified Morrison that a second supplemental hearing would be held on April 22, 2020. (Tr. 794-801.) Here again, the ALJ advised Morrison that a medical expert would appear at the hearing by phone. (Tr. 796.) The notice also advised Morrison that he could (and should) submit any new medical records no later than five days before the hearing. (Tr. 796.)
Morrison's attorney took advantage of this extra time by submitting additional medical records. Those records included treatment notes about Morrison's visit to his family doctor just before and just after his two September 2019 hospitalizations. (Tr. 1486-91.) Unfortunately, during the time leading up to the second supplemental hearing, Morrison's counsel did not submit the hospital records from Morrison's two September 2019 hospitalizations, nor did he provide any further follow up records from the endocrinology clinic.
2. The Second Supplemental Hearing
The second supplemental hearing was held as scheduled on April 22, 2020. (Tr. 81-85.) Due to the COVID-19 pandemic, the ALJ granted the request by Morrison and his counsel to appear by phone. The ALJ also noted that Dr. Amusa, the medical expert, and a vocational expert were participating by phone. (Tr. 81.)
The ALJ pointed out that the medial expert and a vocational expert had also been ready to participate in the January hearing, but the hearing did not proceed to allow time to obtain additional medical records, particularly the records from Morrison's two recent hospitalizations. The ALJ then asked counsel why those had not been submitted. (Tr. 82.) Counsel replied that he had not been able to get those, noting that his staff had started working from home shortly after the January hearing due to the pandemic. (Id.) Counsel also assured the ALJ that the documents had been requested in January but had not been received. (Tr. 84-85.)
After learning that the September hospital records and other medical records were not submitted, the ALJ announced:
ALJ: Well, what I'm going to do now is I am not going to go forward with the hearing. I am going to close this file. I'm going to make a decision. Those records should have been [here], if you requested them in January. The problems with getting records didn't start until several months later. So, Mr. Morrison, you will get a decision from me as will your attorney. Nothing further, the record is closed and this hearing is ended. Let us go off the record. The ME and the VE can - [transcript ends].Tr. 85.
G. The ALJ's Decision
About two weeks after the second supplemental hearing, the ALJ issued his written decision. (Tr. 16-30.) The ALJ began by explaining why he set a supplemental hearing and why he ultimately decided not to proceed with it. (Tr. 1617.) As described by the ALJ, at his request Morrison's counsel submitted additional evidence after the initial evidentiary hearing held on April 10, 2018. (Tr. 16.) “As such, a supplemental hearing was set for January 9, 2020, in Harrisburg, PA, at which time medical expert testimony was to be taken.” (Id.) That hearing did not proceed because “counsel failed to update the record, which included two hospital admissions in the fall of 2019.” (Id.) Counsel was given additional time to update the record “and another hearing was scheduled for medical expert testimony.” (Id.) However, counsel again failed to update the record by the time of the second supplemental hearing, which was held by telephone on April 22, 2020. The ALJ expressed skepticism about counsel's explanation that the documents were promptly requested but delayed due to the pandemic. Based on “the lack of evidence submitted into [the] record,” the ALJ found “that a supplemental hearing for medical expert testimony [was] not warranted.” (Tr. 17.)
Turning to Morrison's SSI application, the ALJ was required to analyze his claim both under the childhood disability standard and the adult standard. This was because Morrison was 17 when he filed his application and turned 18 shortly thereafter. (See Tr. 17-20.) However, Plaintiff's claims of error in this appeal challenge the ALJ's decision only as it relates to the adult disability analysis. As such, it is unnecessary to address the ALJ's child disability analysis in this report.
In deciding Morrison's claim for adult disability benefits, the ALJ applied the five-step method for evaluating disability claims. See 20 C.F.R. § 416.920. The ALJ first found (at step one) that Morrison had not performed substantial gainful activity since October 19, 2017, the date he filed his application. (Tr. 20.) In considering the severity of Morrison's impairments (step two), the ALJ determined that Morrison had the following “severe” medical impairments: “type 1 diabetes mellitus and major depressive disorder.” (Tr. 24.)
The five-step disability analysis will be explained further in the Standard of Review section of this report, infra Part II.A.
The ALJ next determined (at step three) that Morrison's impairments were not severe enough, singly or collectively, to meet or medically equal one of the listed impairments in the regulations. (Tr. 24.) In reaching this conclusion, the ALJ carefully analyzed Morrison's mental impairment in the context of listing 12.04. (Tr. 24-26.)
Before proceeding to the next step in the disability analysis, the ALJ assessed Morrison's residual functional capacity (RFC) to do physical and mental work activities. The ALJ made the following RFC finding:
After careful consideration of the entire record, the undersigned finds that, since attaining age 18, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except limited to routine, repetitive tasks, no public interaction, occasional interaction with coworkers and supervisors, occasional changes in the work setting, and no exposure to unprotected heights or machinery.(Tr. 26.)
In making this finding, the ALJ “considered the claimant's statements concerning the intensity, persistence and limiting effects of his symptoms and found them not entirely consistent with the objective medical and other evidence.” (Id.) The ALJ summarizes that evidence in his ruling. (Tr. 26-28.) As to the medical evidence, the ALJ noted Morrison's “history of hospitalizations for diabetic ketoacidosis, including two hospitalizations in September 2019.” (Tr. 26.)
In reviewing the evidence, the ALJ described and assessed the opinion evidence from the state agency medical consultants as it relates to Morrison's adult disability claim. (Tr. 27.) As the ALJ noted, “the State agency consultants indicated that the claimant's impairments do not significantly limit his physical or mental ability to do basic work activities.” (Id.) The ALJ found these opinions not persuasive, as [they are]
not supported by the consistent findings of flat affect noted on mental status examination and [are] not consistent with his need for multiple hospitalizations for diabetic ketoacidosis. This evidence suggests that the claimant's impairments cause more than minimal functional limitations after he attained the age of 18.(Id.)
After reviewing the evidence, the ALJ summarized the reasons for his RFC finding as follows:
In assessing the residual functional capacity, the undersigned considered the combined impact of all of the claimant's medically determinable impairments. The residual functional capacity is supported by the claimant's need for multiple hospitalizations, his reports of dizziness but otherwise denial of symptoms related to his diabetes, the frequent findings of flat affect in the clinical setting, the otherwise intact physical and mental status examination findings, and his conservative mental health treatment. The undersigned has considered his reports of avoidant behaviors, anger and irritability, the combination of his diabetes and depression, and his mental status examination findings in limiting him to sedentary exertional activity consisting of only routine, repetitive tasks, no public interaction,
occasional interaction with coworkers and supervisors, and only occasional changes in the work setting.(Tr. 26.)
The ALJ next found (at step four) that Morrison “has no past relevant work.” (Tr. 28.) In considering whether Morrison could perform any type of work (step five), the ALJ relied on the testimony of the vocational expert, Mr. Caporale, in finding that Morrison could perform several jobs that exist in significant numbers in the national economy. (Tr. 28-29.) From this, the ALJ concluded that Morrison is not disabled.
H. Request for Judicial Review
As noted earlier, Plaintiff sought administrative review of the ALJ's decision. After the Appeals Council denied that request, Plaintiff filed the instant action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. 1.) The issues raised by Plaintiff have been briefed by the parties and will be analyzed in light of the applicable standard of review. (Doc. 19, 20, 23.)
II. ANALYSIS
A. Standard of Review
To qualify for benefits under the Social Security Act (the “Act”), Plaintiff bears the burden of proving he is disabled. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); see also 20 C.R.F. § 416.912 (stating that “you have to prove to us that you are . . . disabled”); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (noting the claimant's “burden to produce evidence supporting her disability claim”). The Act defines disability as being “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at § 1382c(a)(3)(D).
To determine whether a claimant is disabled within the meaning of the Act, the Commissioner applies the following five-step inquiry:
(1) whether the claimant is currently working in substantial gainful employment;
(2) whether the claimant suffers from a severe impairment;
(3) whether the claimant's severe impairment is sufficient under the pertinent regulations (“listings”) to support a finding of disability;
(4) whether the claimant is capable of returning to his or her past relevant work; and, if not,
(5) whether the impairment prevents the claimant from doing any other work.See 20 C.F.R. § 416.920.
At steps one through four, the burden of proof is on the claimant to show that he is disabled. Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this responsibility, the burden then shifts to the Commissioner at step five of the process to show that there is other gainful employment the claimant can perform despite his existing impairments. Id.
As described earlier, ALJ Burock applied the five-step evaluation process in addressing Morrison's adult disability claim. The issues raised by Morrison focus on the ALJ's RFC finding, which resulted in his conclusion at step five that Morrison was not disabled.
A federal court's review of the Commissioner's final decision is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Chandler, 667 F.3d at 359. As the Supreme Court has emphasized, substantial evidence review is deferential:
Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). In applying this standard, “[c]ourts are not permitted to re-weigh the evidence or impose their own factual determinations.” Chandler, 667 F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although the substantial evidence standard is deferential, this does not mean that a court may accept unsupported or unexplained findings. For meaningful judicial review to occur, the Third Circuit “requires an ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 704-06 (3d Cir. 1981)). The “ALJ must consider all evidence before him” and “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 121-22 (citing Plummer v. Apfel, 186 F.3d 422, (3d Cir. 1999) and Cotter, 642 F.2d at 705) (holding that the ALJ erred in failing to mention and explain contradictory medical and non-medical evidence). Although an ALJ need not “use particular language or adhere to a particular format in conducting his analysis,” the ALJ must ensure “sufficient development of the record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
B. Issues
In seeking review of the Commissioner's denial of benefits, Plaintiff raises three issues:
I. The Plaintiff asserts that the Administrative Law Judge erred in finding no medical [opinion] evidence persuasive.
II. The Plaintiff asserts that the Administrative Law Judge erred in failing to order a consulting medical examination.
III. The Plaintiff asserts that the Administrative Law Judge erred in finding the Plaintiff's statements inconsistent with the evidence.(Doc. 19 at 11.) As will be seen, the first two issues are related. The recommended resolution of those issues suggests that the third issue need not be decided. As to all three points, the Commissioner contends that they lack merit because the ALJ's ruling is supported by substantial evidence. (Doc. 20.)
C. The ALJ's Evaluation of the Medical Opinion Evidence
Plaintiff's first point is essentially that the ALJ's decision lacks substantial evidence because he rejected the opinions of the state agency consultants, which are the only medical opinions in the record. In response, the Commissioner cites the Third Circuit's holding in Chandler for the proposition that the “ALJ was not required to rely on any medical opinion in formulating Plaintiff's RFC.” (Doc. 20 at 11 (citing Chandler, 667 F.3d at 362).)
As the Commissioner correctly notes, the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). Further, in making that assessment, an ALJ must consider more than just medical opinions; rather, the ALJ considers “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3); see also Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (“In making a residual functional capacity determination, the ALJ must consider all evidence before him.”). In this context, “evidence is anything [the claimant] or anyone else submits” or that the ALJ obtains relating to the claim. 20 C.F.R. § 416.913(a).
The categories of evidence include medical opinions. Id. at § 416.913(a)(2). The regulations define a medical opinion as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in certain abilities, including the “ability to perform physical demands of work activities” and the “ability to perform mental demands of work activities.” Id. at § 416.913(a)(2)(i), (ii).
Although there are cases in which treatment records and other evidence are sufficient to support an ALJ's RFC findings without medical opinion evidence, this is not one of them. Here, the state agency medical and psychological consultants, Dr. Brown and Dr. Jonas, reviewed Morrison's medical records and opined that his diabetes and depression were not severe impairments. (Tr. 679-81, 684-85.) Presumably because they found Morrison's impairments non-severe, the state agency doctors did not express any opinion about Morrison's physical or mental RFC. (Tr. 686-87 (“No RFC/MRFC assessments are associated with this claim.”) Apart from the assessment by the state agency doctors, there is no other medical opinion evidence in the record.
The ALJ properly considered the “opinion evidence” from Dr. Brown and Dr. Jonas. (Tr. 27.) He found their “opinion is not persuasive, as it is not supported by the consistent findings of flat affect noted on mental status examination and is not consistent with his need for multiple hospitalizations for diabetic ketoacidosis.” (Id.)
The ALJ's rejection of the state agency consultants' opinion is undoubtably correct. Indeed, any other conclusion would have lacked substantial evidence under the circumstances here. Through no fault of the state agency doctors, their finding that Morrison had no severe impairments was rendered untenable in light of the new evidence submitted after their evaluation (performed on April 10, 2018). The new evidence included medical records showing that Morrison had been hospitalized with diabetic ketoacidosis (DKA) eight times on the following dates:
• September 16-18, 2018 (Tr. 1269-76)
• October 15-17, 2018 (Tr. 1276-85)
• November 17-18, 2018 (Tr. 1285-93)
• November 27-28, 2018 (Tr. 1293-1302)
• December 15-18, 2018 (Tr. 1302-14)
• January 25 - February 3, 2019 (Tr. 1314-25)
• September 10-12, 2019 (See Tr. 147; see also Tr. 106-62)
• September 27 - October 1, 2019 (See Tr. 147; see also Tr. 313-46)
Morrison's counsel belatedly submitted the hospital records for the two September 2019 hospitalizations. (Tr. 106-62.) It appears that counsel sent those documents by fax on May 5, 2020, which was five days after the ALJ signed his written decision (on May 6, 2020). (See Tr. 105.)
As to each of those hospitalizations, Morrison was diagnosed with DKA, which is a life-threatening condition. See supra n.9 (describing DKA). All those hospitalizations, together with other additional treatment-including an insulin pump implant-occurred after the state agency consultants performed their evaluations and before the ALJ rendered his decision on May 6, 2020. Little wonder why the ALJ was not persuaded by the state agency consultants' opinion that Morrison's diabetes was a non-severe “minimal impairment.” See Dieter v. Saul, No. 1:19-CV-1081, 2020 WL 2839087, at *8 (M.D. Pa. June 1, 2020) (noting that “material medical developments which take place after a state agency or consulting expert's review of a claimant's file frequently can undermine the confidence which can be placed in this non-treating and non-examining source opinion”) (citing Cadillac v. Barnhart, 84 Fed.Appx. 163, 168 (3d Cir. 2003)).
There is no suggestion in the record that any of those hospitalizations was unnecessary, given Morrison's symptoms and medical condition when he went to UPMC's emergency department. The detailed emergency department medical records show that Morrison was carefully monitored and evaluated before a doctor determined it was necessary to admit him into the hospital.
The ALJ would have clearly erred if he had agreed with the state consultants that Morrison's diabetes was non-severe. As the Third Circuit has emphasized, the step two severity inquiry is a de minimis screening device used to cast out meritless claims. See Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003); see also McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004) (the step two burden on a claimant “is not an exacting one”). It is a minimal threshold, and “[i]f the evidence presented by the claimant presents more than a ‘slight abnormality[,]' the step-two requirement of ‘severe' is met, and the evaluation process should continue.” Newell, 347 F.3d at 546 (citing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)).
The ALJ was thus left with no medical opinion to help him understand what to make of the voluminous new hospital reports and other medical records. Apparently recognizing this problem, the ALJ appropriately took steps to remedy it by setting a supplemental hearing and arranging for a well-qualified medical expert to testify. Unfortunately, the medical expert ultimately did not testify (as discussed further in the next section on this report), and the ALJ made his RFC determination without the guidance of any reliable medical opinion.
This is a scenario that has been addressed in multiple cases decided in this District:
As judges within the United States District Court for the Middle District of Pennsylvania have frequently stated, “[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Where an ALJ rejects all available medical opinions, courts will generally conclude “that the ALJ impermissibly relied on speculation or lay interpretation of medical evidence to reach” an RFC determination.Miller v. Saul, No. 4:18-CV-02012, 2020 WL 1531298, at *3 (M.D. Pa. Mar. 31, 2020) (footnotes omitted) (quoting Maellaro v. Colvin, No. 3:12-CV-01560, 2014 WL 2770717, at *11 (M.D. Pa. June 18, 2014) (collecting cases) and McKean v. Colvin, 150 F.Supp.3d 406, 418 (M.D. Pa. 2015)). Applying the reasoning of those cases here, the ALJ's RFC determination is not supported by substantial evidence because it was not informed by any medical opinion and relied instead on his own lay interpretation of the medical evidence, which is “not within the ambit of the ALJ's expertise.” See Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983) (holding that the ALJ's “conclusion may not be permitted to stand” where it was based on his “own medical judgment”); see also Decker v. Berryhill, No. 1:17-CV-00945, 2018 WL 4189662, at *6 (M.D. Pa. June 8, 2018), report and recommendation adopted, No. 1:17-CV-945, 2018 WL 4184304 (M.D. Pa. Aug. 31, 2018) (concluding that where the ALJ afforded “little weight” to the only medical opinion, “the ALJ's assessed RFC is not supported by substantial evidence because the limitations found constitute a lay interpretation of the [medical] evidence”).
The Commissioner cites Chandler for the proposition that the “ALJ was not required to rely on any medical opinion in formulating Plaintiff's RFC.” (Doc. 20 at 11 (citing Chandler, 667 F.3d at 362).) But the analysis in Chandler suggests that the Commissioner reads it too broadly. In that case, the Third Circuit reviewed a district court ruling that “rejected the ALJ's decision because ‘there was no timely and relevant opinion by a medical expert which support[ed] the [RFC] determination.'” Chandler, 667 F.3d at 360 (citation omitted). “Essential” to the district court's holding was its rejection of a state agency doctor's opinion on which the ALJ had relied. Id. Observing that the “State agent opinions merit significant consideration,” the Third Circuit found that the district court erred and that “the ALJ was entitled to rely on [the consultant's] opinion. Id. at 361. Thus, Chandler was a case in which the ALJ did rely on an appropriate medical opinion in making his RFC determination.
One of the reasons the district court gave for disregarding the consultant's opinion was that new medical records had been submitted after the opinion was rendered but before the ALJ made his decision. Chandler, 667 F.3d at 360-61. As the Third Circuit noted, “because state agency review precedes ALJ review, there is always some time lapse between the consultant's report and the ALJ hearing and decision.” Id. at 361. Given this, it is not uncommon-or inappropriate-for an ALJ to consider additional medical records that were not available during the state agency consultants' evaluation of the evidence. Notably, the Third Circuit summarized the new records in Chandler and found that the “new medical evidence generated after [the consultant's] review did not undermine his conclusion.” Id. at 362-63. If anything, the new evidence supported the earlier opinion, reflecting (among other things) that the claimant reported “things [had] improved.” Id. at 363. In the instant case, however, the medical evidence before the ALJ was dramatically altered with new evidence reflecting Morrison's eight subsequent hospitalizations and need for an insulin pump implant (among other things).
Unlike Chandler, the ALJ here did not rely on any medical opinion evidence. Nor did the ALJ resolve any conflicts between medical opinions, which would certainly have been within his discretion to do. “[T]here is a critical difference between an ALJ who resolves a conflict in medical opinions and an ALJ who rejects all of the medical opinions in favor of lay interpretation.” Miller, 2020 WL 1531298, at *4 (quoting Burns v. Colvin, 156 F.Supp.3d 579, 589 (M.D. Pa. 2016)). Again, “judges within this District have repeatedly rejected the notion that an ALJ may- in all but the rarest of circumstances-craft an RFC without the benefit of a supporting a medical opinion.” Miller, 2020 WL 1531298, at *4.
Some courts read Chandler more broadly and suggest that circumstances in which an ALJ may make an RFC determination without a supporting medical opinion are not rare at all. See, e.g., Cummings v. Colvin, 129 F.Supp.3d 209, 215 (W.D. Pa. 2015) (stating that an ALJ is not prohibited from making an RFC assessment “even if the only medical opinion in the record is to the contrary”) (citing Doty v. Colvin, No. CIV.A. 13-80-J, 2014 WL 29036, at *1 n.1 (W.D. Pa. Jan. 2, 2014)). As Magistrate Judge Carlson has observed, the “seemingly discordant legal propositions” reflected in the caselaw “can be reconciled by evaluation of the factual context of these decisions.” Dieter v. Saul, No. 1:19-CV-1081, 2020 WL 2839087, at *6 (M.D. Pa. June 1, 2020). Ultimately, “review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence.” Id. (citations omitted). In other words, Judge Carlson sensibly suggests that the analysis of whether opinion evidence is needed turns on whether there is substantial evidence to support the ALJ's RFC assessment without one. To the extent there is a conflict in the caselaw, it need not be resolved here. For the reasons discussed above, the ALJ's RFC finding is not supported by substantial evidence.
One of those rare circumstances was addressed in Mays v. Barnhart, 78 Fed.Appx. 808, 813 (3d Cir. 2003). The Commissioner's reliance on Mays is likewise unavailing here. In that case, the Commissioner had awarded the claimant SSI benefits as of a certain disability onset date, and the issue was whether she was also entitled to insurance and widow's benefits as of earlier dates (when her insured status expired). Id. at 809. The ALJ found she was not.
In response to the claimant's argument that there was no expert medical opinion supporting the ALJ's specific RFC finding, the Third Circuit stated that an ALJ “is not required to seek a separate expert medical opinion.” Id. at 813. But the Court also explained that the medical evidence in that case was sufficient for the ALJ to conclude that the claimant's physical impairments did not begin to deteriorate until after the dates her insured status expired. Id. at 813 & n.4. Specifically, treatment notes from the claimant's doctor showed that she did not complain about her physical impairments or seek care for those conditions until well after the relevant dates. Id. The ALJ appropriately relied on those treatment records over the report of a consulting physician, “given that [the consulting doctor] performed his examination long after [the claimant's] dates of last insurance.” Id. at 813. Thus, Mays was a case in which the ALJ could appropriately make a decision based on the medical records since they showed that the disabling symptoms did not appear until after the claimant's last insured date.
No similar circumstances are present here. To the contrary, the new evidence of Morrison's multiple hospitalizations for DKA emphasized the need for expert medical opinion to inform the ALJ's decision. Although the ALJ apparently recognized this need and took steps to obtain evidence from a medical expert, he ultimately made his RFC determination based on his own lay assessment of the medical records. That RFC finding lacks substantial evidence under the circumstances of this case.
This is not to say that the ALJ must have obtained a medical opinion that “matched” his RFC finding. The Third Circuit has rejected such a proposition: “There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006); see also Foux v. Saul, 530 F.Supp.3d 522, 526 (M.D. Pa. 2021) (citing Titterington and rejecting the proposition “that the ALJ should have had a ‘medical opinion ... credited with regards to all of Plaintiff's limitations' to support his conclusion”). Again, it is the ALJ's role to determine a claimant's RFC after considering all the evidence. See 20 C.F.R. §§ 416.945(a)(3), 416.946(c); see also Titterington, 174 Fed.Appx. at 11 (“Surveying the medical evidence to craft an RFC is part of the ALJ's duties.”).
The problem in the instant case is not that the ALJ failed to obtain a “matching” medical opinion; rather, the problem here is that the ALJ had no useful guidance from any medical opinion. There are extensive records detailing Morrison's diabetes treatment and hospitalizations. What is missing is any medical judgment about what he can still do despite his type I diabetes and depression, which is the type of evidence provided through medical opinions. See 20 C.F.R. §404.1527(a)(1). The absence of such evidence is particularly significant given Mr. Caporale's testimony that Morrison would be unable to maintain employment if he was absent from work more than 1.3 days a month or if he was off task more than 15 percent during the workday. (Tr. 75.) Whether Morrison can meet those requirements is unclear, given the number of times he had been hospitalized and his need to actively monitor and treat his diabetes. The ALJ refers to no evidence in the record that addresses Morrison's ability to maintain adequate attendance and to stay sufficiently on task in a work setting.
The ALJ mentions that “there is evidence of noncompliance with treatment, including failure to check his blood glucose levels as recommended.” (Tr 26.) Indeed, as summarized earlier in this report, the record reflects that Morrison's medical providers reminded him of the need to check his blood glucose level regularly and noted more than once that his DKA episodes may have been triggered by his noncompliance with recommended self-treatment. But there is no medical opinion or evidence in the medical records to guide the ALJ in considering the extent to which Morrison's symptoms were exacerbated by noncompliance or in determining how often Morrison's diabetes would cause him to be absent from work or off task during work, even assuming he was fully compliant with his treatment regimen.
In briefly mentioning Morrison's noncompliance, the ALJ did not suggest that was the basis for denying benefits, nor would such a denial have been proper without additional findings. See Vega v. Comm'r of Soc. Sec., 358 Fed.Appx. 372, 375 (3d Cir. 2009) (“a denial of benefits for failure to follow a prescribed treatment plan may only be issued after the ALJ finds a disabling impairment that precludes engaging in any substantial activity”). Presumably, the ALJ referenced Morrison's noncompliance as a factor in considering his credibility, which would be appropriate. Id. (“an ALJ may consider a claimant less credible if the individual fails to follow the prescribed treatment plan without good reason”) (citing SSR 967p).
Presumably, most people with type I diabetes can (and do) maintain gainful employment with proper treatment. Presumably also, however, most people with type I diabetes have not been repeatedly hospitalized with DKA as Morrison has been. The ALJ needed some guidance from a medical expert in evaluating Morrison's diabetes symptoms to determine whether he could meet the requirements to keep a job.
In sum, while the ALJ's RFC analysis was detailed and generally well supported, he was left to interpret Morrison's medical treatment and hospital records with no relevant guidance from a medical expert on what that information suggested about the severity of Morrison's condition, what he can still do despite his condition, and what limitations it imposes on his ability to work. Under the circumstances here, in the absence of any useful medical opinion evidence, the ALJ's RFC finding lacked substantial evidence and remand is necessary to correct this error. See, e.g., Miller, 2020 WL 1531298, at *5 (ordering remand where the ALJ “erroneously relied upon his own lay speculation to reach an RFC determination”); Decker, 2018 WL 4189662 at *6-*7 (concluding that remand for reconsideration was “necessary to correct” the ALJ's error in discounting the only medical opinion and speculating on the claimant's restrictions); McKean, 150 F.Supp.3d at 418 (concluding that the ALJ's RFC was not supported by substantial evidence and remand was warranted where the ALJ relied on “lay interpretation of medical evidence”).
D. Duty to Develop the Record
Plaintiff's second argument is that the ALJ erred in failing to obtain a consulting medical examination. His rationale is essentially the same as his first argument: because the ALJ found the state agency consultants' opinion not persuasive, “the ALJ was obligated to order a consulting examination.” (See Doc. 19 at 12-13.) The Commissioner responds that a consultative examination is not mandatory and is normally ordered only when the evidence “is not sufficient to support a decision.” (Doc. 20 at 12 (citing 20 C.F.R § 416.919).) According to the Commissioner, the evidence here was sufficient.
Whether the ALJ should have ordered a consulting examination goes to the more fundamental question of whether the ALJ satisfied his duty to develop the record. As the Supreme Court and the Third Circuit have often emphasized, “[i]t is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000) (citing Richardson v. Perales, 402 U.S. 389, 400-401 (1971)); see also Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (“ALJs have a duty to develop a full and fair record in social security cases.”). This duty arises out of the non-adversarial nature of Social Security proceedings: “Although ‘[m]any agency systems of adjudication are based to a significant extent on the judicial model of decisionmaking,' . . . the SSA is ‘[p]erhaps the best example of an agency' that is not.” Sims, 530 U.S. at 110 (citations omitted). “Social Security proceedings are inquisitorial rather than adversarial.” Id. at 111-12. It is also significant, as the Third Circuit has emphasized, that “these proceedings are extremely important to the claimants”:
Although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.Hess v. Sec'y of Health, Ed. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974); see also Ventura, 55 F.3d at 902 (citing Hess for the proposition that “an ALJ must secure relevant information regarding a claimant's entitlement to social security benefits”).
Consistent with this judicially recognized duty, the Commissioner's regulations describe an ALJ's duty to develop the record. The ALJ is principally responsible for developing the claimant's “complete medical history.” 20 C.F.R. § 416.912(b)(1).
Beyond that, an ALJ's duty to develop the record is guided by the consistency and sufficiency of the evidence. If all the evidence, “including all medical opinion(s), is consistent and there is sufficient evidence” to determine whether the claimant is disabled, then the ALJ will decide based on that evidence. 20 C.F.R. § 416.920b(a). However, in some cases, the evidence may be insufficient or inconsistent. Evidence is “insufficient when it does not contain all the information [the ALJ] need[s] to make [a] determination or decision.” 20 C.F.R. § 416.920b. Evidence is “inconsistent when it conflicts with other evidence, contains an internal conflict, is ambiguous, or when the medical evidence does not appear to be based on medically acceptable clinical or laboratory diagnostic techniques.” 20 C.F.R. § 416.920b.
If there are inconsistencies and the ALJ cannot decide based on the available evidence or if the evidence is insufficient, the ALJ “will try to resolve the inconsistency or insufficiency by taking any one or more of the [following] actions”:
1) “recontact [the claimant's] medical source”;
2) “request additional existing evidence”;
3) “ask [the claimant] to undergo a consultative examination”; and/or
4) “ask [the claimant] or others for more information.”20 C.F.R. § 416.920b(b)(2)(i)-(iv).
Here, Plaintiff argues that the ALJ abused his discretion in failing to order a consultative examination. As the Third Circuit has noted, “the ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision.” Thompson v. Halter, 45 Fed.Appx. 146, 149 (3d Cir. 2002). “The decision to order a consultative examination is within the sound discretion of the ALJ.” Id.
Although the ALJ did not elect to obtain a consultative examination, he did take other steps to develop the record. To begin with, the record reflects that the ALJ diligently attempted to obtain all of Morrison's relevant medical records. The ALJ discussed this topic with counsel at each of the hearings.
In addition, rather than order a consultative examination, the ALJ set a supplemental hearing to obtain expert medical testimony. (See Tr. 16, 767-69.) Although the ALJ's hearing notice did not explain why he believed another hearing was needed, presumably this was done because the ALJ appropriately found that there was an inconsistency in the evidence that hindered a ruling. In particular, the state agency consultants' opinion that Morrison had no severe impairment was entirely inconsistent with the medical records submitted after their evaluation, which included Morrison's six subsequent hospitalizations. Presumably to address that inconsistency and inform his RFC assessment, the ALJ arranged for a well-qualified medical expert to testify at the supplemental hearing. (See Tr. 1519-22 (Dr. Amusa's resume).)
The inconsistency between the state consultants' opinion and the other evidence became even more profound when, after the ALJ sent the initial supplemental hearing notice, counsel submitted additional medical records reflecting that Morrison had been hospitalized two more times since the initial hearing. Those new records showed that Morrison had been hospitalized twice in September 2019, but they did not include the actual hospital records.
This chronology of events was described earlier in this report, see supra Part I.F.
As described earlier, those hospital records had not been submitted by the time of the initial supplemental hearing or the time of the second supplemental hearing. For both supplemental hearings, Dr. Amusa was available and waiting to testify. But the ALJ decided to end the hearing, “close this file,” and “make a decision.” (Tr. 85.)
Based on counsel's apparent lack of diligence in submitting important medical records, the ALJ was justified in refusing to grant yet more time to obtain those documents. Also, although Plaintiff complains that the ALJ did not order a consultative examination, the ALJ took steps to supplement the record with testimony from a medical expert. The ALJ appropriately exercised his discretion to obtain additional medical opinion evidence through the testimony of a medical expert rather than a consultative examination.
Under the circumstances here, however, the ALJ abused his discretion in refusing to proceed with the hearing. The only medical opinion evidence in the record was the initial evaluation by the state consultants. Their opinion was hopelessly inconsistent with the later-submitted medical records showing that Morrison was hospitalized multiple times. The ALJ apparently recognized this inconsistency in setting the supplemental hearing to obtain medical expert testimony.
The need for expert medical testimony was not extinguished by the absence of the September 2019 hospital records. Those records addressed only two of Morrison's eight hospitalizations that occurred after the state consultants' initial evaluations. Dr. Amusa had the complete records from Morrison's first six hospitalizations. Dr. Amusa also had the treatment records for Morrison's visits to his family doctor just before and just after the September 2019 hospitalizations, and, more significantly, Dr. Amusa had the treatment report from Morrison's endocrinologist, Dr. Galindo, dated less than a week after Morrison's discharge from the second September 2019 hospitalization. (Tr. 1479-82.)
The absence of the records for the two September 2019 hospitalizations in no way compelled the ALJ to close the hearing and cancel the medical expert's testimony. At such a hearing, the formal rules of evidence do not apply. See 42 U.S.C.A. § 405(b)(1) (“Evidence may be received at any hearing before the Commissioner of Social Security even though inadmissible under rules of evidence applicable to court procedure.”); Richardson v. Perales, 402 U.S. 389, 400 (1971) (“strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent”). As the Supreme Court has long recognized, the “obvious intent of Congress” was that in social security hearings there should be “an emphasis upon the informal rather than the formal” and that they “should be liberal and not strict in tone and operation.” Perales, 402 U.S. at 400-01; see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are inquisitorial rather than adversarial.”); 20 C.F.R. § 404.900(b) (“In making a determination or decision in your case, we conduct the administrative review process in an informal, non-adversarial manner.”).
Properly viewing Morrison's supplemental hearing as informal and non-adversarial suggests that it should have proceeded. Even without the September 2019 hospital records, Dr. Amusa had a wealth of medical information on which to base his testimony. In fact, it appears from the record that the ALJ initially set the supplemental hearing before Morrison's counsel submitted the medical records that referred to the two September 2019 hospitalizations. (See Tr. 742-46 (initial supplemental hearing notice dated October 28, 2019); Tr. 1478 (counsel faxed endocrinology clinic record on “2019-11-27”).) In any event, to the extent Dr. Amusa would have been hampered by the absence of those specific hospital records, he could have qualified his testimony if he felt he needed to do so, and the ALJ could have taken that into account in determining what weight it should be given. Instead, with Dr. Amusa available and waiting on the phone, the ALJ shut down the hearing.
Although not stated explicitly, the hearing transcript suggests that the ALJ may have decided to close the hearing at least in part as a penalty for counsel's dilatoriness in submitting the missing hospital records. (See Tr. 85.) If the ALJ was frustrated by counsel's failure to submit the documents, this was understandable. ALJs shoulder an enormous workload, and ALJ Burock had already continued the hearing once several months earlier-specifically instructing counsel to submit those records as soon as possible. Still, because this was a non-adversarial proceeding involving important benefits, the ALJ erred to the extent he cut off potentially crucial evidence based on counsel's perceived inaction.
In sum, consistent with the ALJ's duty to develop the record, he diligently and appropriately attempted to obtain relevant medical records and took steps to resolve a significant inconsistency in the evidence through expert medical testimony. However, he ultimately fell short of fulfilling that duty and abused his discretion when he unnecessarily closed the supplemental hearing. See Sparaney v. Kijakazi, No. 3:20-CV-02054, 2022 WL 969619, at *8 (M.D. Pa. Mar. 30, 2022) (“As a lay fact-finder, it is the ALJ's responsibility to secure a medical opinion explaining a claimant's functional limitations. The ALJ is not permitted to speculate based solely upon his or her interpretation of the medical records, and must properly develop the record with regard to facts essential to a disability determination.”) (quoting Forberger v. Astrue, Civil Action No. 10-376, 2011 WL 1085684, at *14 (W.D. Pa. Mar. 21, 2011) (citations omitted).
A finding that the ALJ erred does not end the inquiry. Plaintiff must have been prejudiced by the “evidentiary gaps.” See Rumpf v. Astrue, No. 11-125-GMS, 2015 WL 4126740, at *7 (D. Del. July 8, 2015) (“The ALJ has a duty to further develop the record if the ‘incomplete record reveals evidentiary gaps which result in prejudice to the claimant.'”) (citations omitted); see also Cochran v. Berryhill, No. 18-252, 2019 WL 4093531, at *4 (W.D. Pa. Aug. 29, 2019) (stating that “at the very least, . . . ‘the ALJ's duty is to eliminate evidentiary gaps that prejudice claimant's case'”) (citation omitted).
Plaintiff has the burden to show such prejudice. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (noting that “the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination”). He has made little effort to do so, other than asserting that a consulting medical examination “was necessary here to enable the ALJ to make the disability decision.” (Doc. 19 at 13.) Despite this minimal showing, the nature of the evidentiary gap in this case suggests that the ALJ's error in failing to obtain opinion evidence was not harmless.
Here again, the problem is illustrated by the testimony of the vocational expert, Mr. Caporale, who opined that a hypothetical person with Morrison's RFC (as determined by the ALJ) would be able to perform several jobs. However, such a person would be unable to perform any job if he would be off task more than 15% of the workday, if he was absent more than 1.3 days a month, or if he would need the flexibility to lie down during the day for 50 minutes. (Tr. 75-77.)
The need to decide whether Morrison could meet those workplace requirements-given his type 1 diabetes and depression-is a key reason why the ALJ needed to obtain medical opinion evidence. See 20 C.F.R. § 416.913(a)(2) (describing the role of medical opinion evidence). Because the ALJ's decision to cancel Dr. Amusa's testimony prevented such evidence from being considered, the error was not harmless, and this matter should be remanded. See Chalfant v. Comm'r of Soc. Sec., No. 4:20-CV-1719, 2022 WL 838118, at *7 (M.D. Pa. Mar. 21, 2022) (finding that the plaintiff was prejudiced by the ALJ's failure to obtain a medical opinion because, among other things, “it opened opportunities for the ALJ to inject her lay opinion into the RFC”).
Given this conclusion, it is unnecessary to address Plaintiff's third issue, which is whether the ALJ failed to properly consider his testimony about his symptoms.
Nothing in this report should be construed to suggest what the ultimate outcome should be on remand.
III. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be VACATED and that this matter be REMANDED to the Commissioner to fully develop the record and conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g). It is further recommended that the Clerk be directed to CLOSE this case.
NOTICE TO THE PARTIES
Any party may obtain review of this Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.
Signed on July 5, 2022.