Opinion
Civil No. 3:18-CV-710
06-10-2019
MARLENE PREBISH, Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
(Judge Munley)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
On occasion, legal analysis of Social Security appeals calls to mind principles of Newtonian physics. Newton's third law states that for every action there is an equal and opposite reaction. In Social Security litigation, oftentimes it appears that for each categorical legal proposition, one can find an equal and opposite proposition.
As presented by the parties, this case harkens to these Newtonian notions. The sole issue here relates to the ALJ's consideration of Ms. Prebish's mental and emotional impairments. Each party either attacks, or defends, the ALJ's decision based upon broadly stated legal assertions. For example, the plaintiff assails the ALJ's analysis of her mental state by arguing that "this Court have consistently held that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work", and insisting that "[t]his Court has routinely held that such a limitation [to simple routine tasks] does not properly account for a limitation to 'one or two step tasks.' " (Doc. 12, at 10-12.) The Commissioner's rejoinder to these arguments is also broadly framed, with the Commissioner noting that "the Third Circuit [decision] in Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014), . . . held that there is no per se conflict between jobs requiring a level 3 reasoning and a finding that a claimant should be limited to simple and routine work." (Doc. 13, at 15.)
In our view, these competing categorical assertions are of only limited value in resolving the instant appeal, since each of these legal assertions was advanced in the context of a specific factual setting. Therefore, the factual context of a case is often more instructive and informative in resolving particular Social Security appeals than any broadly stated legal propositions.
So it is in the instant case. As to this dispute concerning the mental residual functional capacity assessment devised by the ALJ, the pertinent facts can be simply stated.
Marlene Prebish applied for disability benefits alleging that she had become disabled as of January 2012 due to the combined effects of degenerative disc disease, obesity, anxiety and depression. (Tr. 14.) In the instant appeal, only Prebish's emotional impairments are at issue. With respect to these emotional impairments, in between 2013 and 2016, Prebish was under the care of Dr. Mark Saxon, who was treating her for anxiety, depression and bi-polar disorder. (Tr. 702-48, 844-71, 1497-1557.) In April of 2017, Dr. Saxon completed a medical source statement, which found that Prebish was either seriously limited or unable to meet multiple intellectual demands of the workplace due to these psychiatric conditions. (Tr. 1557-62.) In contrast, a July 2013 mental health disability determination made by a state agency expert, Dr. James Cunningham, concluded that Prebish experienced moderate limitations in her ability to carry out detailed instructions and maintain attention and concentration for extended periods, as well as experiencing moderate limitations in responding to workplace changes, traveling, and setting realistic goals. (Tr. 88-89.)
It was against the backdrop of these contrasting medical opinions that the ALJ considered Prebish's mental and emotional limitations in the April 26, 2017 decision denying this application for disability benefits. (Tr. 8-24.) In this decision, the ALJ identified Prebish's depression and anxiety as severe impairments at Step 2 of the sequential analysis that applies to Social Security disability claims. (Tr. 14.) Notwithstanding this threshold finding that Prebish suffered from severe emotional impairments, the ALJ found that she could perform a range of sedentary work and fashioned a residual functional capacity assessment that accounted for Prebish's emotional impairments by finding that she was "limited to work that is simple, routine, and repetitive." (Tr. 17.)
In reaching this conclusion, the ALJ discounted the medical opinion of Prebish's treating source, Dr. Saxon, who had treated Prebish for 3 years and had opined that she was completely disabled. (Tr. 20-21.) The ALJ also afforded "little overall weight" to the opinion of the state agency expert, Dr. Cunningham, who had found in 2013 that Prebish experienced moderate difficulties in maintaining concentration, persistence and pace, but retained the ability to perform simple, one or two-step tasks. (Tr. 21.) Thus, the mental health component of this RFC assessment was unsupported by any medical opinion, and was based upon the rejection, in large measure, of both medical source statements. (Id.) Furthermore, when the ALJ gave the state agency expert opinion "little weight overall," the ALJ "f[ound] that she is more limited than the opinion indicates." (Id. emphasis added.) Yet while the ALJ's decision stated that due to her emotional impairments Prebish could do less than the state agency expert opined, the RFC fashioned by the ALJ actually indicated that she could do more that the agency expert stated. This mental health RFC simply stated that Prebish was "limited to work that is simple, routine, and repetitive," (Tr. 17), but did not acknowledge that Prebish experienced moderate limitations in concentration, persistence and pace. Nor did this mental RFC limit her to simple one or two steps tasks, limitations found by Dr. Cunningham and limitations that the ALJ indicated actually overstated her abilities, since the ALJ found that Prebish was more limited than the state agency expert indicated. (Tr. 21.)
Having made these somewhat contradictory determinations regarding Prebish's mental residual functional capacity when fashioning her mental RFC, the ALJ then found at Step 5 of this sequential analysis that Prebish could perform other work in the regional economy, including work as a video surveillance monitor or credit authorizer. (Tr. 23.) Yet, both of these job positions are defined in the Dictionary of Occupational Title as jobs that require reasoning level 3 functioning; that is, the ability to: "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems involving several concrete variables in or from standardized situations." DICOT 249.367-022 (G.P.O.), 1991 WL 672327 (credit authorizer); DICOT 379.367-010 (G.P.O.), 1991 WL 673244 (video surveillance monitor). The ALJ did not otherwise reconcile the finding that Prebish could do level 3 reasoning jobs with the RFC finding that limited her to "work that is simple, routine, and repetitive." (Tr. 17.) Nor did the ALJ's decision further correlate these findings with the conclusion that Prebish "is more limited than the [state agency expert] opinion [which indicated that she had moderate limitations in concentration but could perform simple one or two step tasks] indicates." (Tr. 21.)
This appeal followed. (Doc. 1.) As we have noted, on appeal Prebish attacks this mental RFC determination, arguing that it is inconsistent with settled case law. The Commissioner, in turn, defends the ALJ's assessment as consistent with case law. While we find these competing broad legal principles to be of limited value in resolving this case, for the reasons set forth below, we submit as a factual matter that the ALJ's conclusions are insufficiently explained, supported and reconciled with one another. Therefore, we recommend that this case be remanded for further consideration by the Commissioner.
II. Discussion
A. Substantial Evidence Review - the Role of this Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D.Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). 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 decision] 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 the claimant is disabled, but rather whether the Commissioner's finding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.")(alterations omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D.Pa. 1981)("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
Several fundamental legal propositions which flow from this deferential standard of review. First, when conducting this review "we are mindful that we must not substitute our own judgment for that of the fact finder." Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, "this Court requires the ALJ to set forth the reasons for his decision." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the court of appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a "discussion of the evidence" and an "explanation of reasoning" for his conclusion sufficient to enable
meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular "magic" words: "Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505.Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
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); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(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); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, 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).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(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), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (RFC). RFC is defined as "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., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that "[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." Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: "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 F. App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where medical sources have opined regarding limitations which would support a disability claim, but an ALJ has rejected every medical opinion based upon a lay assessment of other evidence. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living, to fashion an RFC 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. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). In either event, once the ALJ has made this determination, our 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. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it 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 706-707. In addition, "[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., 181 F. 3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations also set standards for the evaluation of medical opinion evidence, and define medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. § 404.1527(c).
In deciding what weight to accord competing medical opinions and evidence, the ALJ is guided by factors outlined in 20 C.F.R. § 404.1527(c). "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker." SSR 96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant, and therefore their opinions generally entitled to more weight. See 20 C.F.R. § 404.1527(c)(2) ("Generally, we give more weight to opinions from your treating sources..."); § 404.1502 (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. § 404.1527(c)(2); see also SSR 96-2p, 1996 WL 374188 (explaining that controlling weight may be given to a treating source's medical opinion only where it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent with the other substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinions: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c).
Oftentimes, as in this case, an ALJ must evaluate various medical opinions. Judicial review of this aspect of ALJ decision-making is guided by several settled legal tenets. First, when presented with a disputed factual record, it is well-established that "[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, "[w]here, . . . , the opinion of a treating physician conflicts with that of [other sources], the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by an adequate, articulated rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight. See e.g., Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5, 2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655 (M.D. Pa. Mar. 14, 2018). See Shoemaker v. Colvin, No. 3:16-CV-2304, 2018 WL 3245011, at *10 (M.D. Pa. Apr. 5, 2018), report and recommendation adopted sub nom. Shoemaker v. Berryhill, No. 3:16-CV-2304, 2018 WL 3239903 (M.D. Pa. July 3, 2018).
It is equally clear, however, that an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016) (citing Thanh Tam Vo v. Colvin, No. 1:14-CV-00541-GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015)) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC). Thus,
In a slew of decisions, the Third Circuit holds that no reasonable mind would find the ALJ's evidence to be adequate when the ALJ rejects every medical opinion in the record with only lay reinterpretation of medical evidence. See Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 37, 36-37 (3d Cir.1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 494 (3d Cir. 1980); Rossi v. Califano, 602 F.2d 55, 58-59, (3d Cir. 1979); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978). These cases also recognize the special deference owed to medical opinions from treating sources ("treating source rule")Burns v. Colvin, 156 F. Supp. 3d 579, 583 (M.D. Pa. 2016).
In short, "rarely 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." Ennis v. Astrue, No. 4:11-CV-01788, 2013 WL 74375, at *6 (M.D. Pa. Jan. 4, 2013) (Munley, J.) (citing Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence")).
It is against these legal guideposts that we assess the ALJ's decision in the instant case.
D. A Remand is Warranted Here.
When we consider the particular factual context of this case, and the ALJ's evaluation of the mental health aspects of Prebish's claim, we are struck by several facts. First, the ALJ discounted the medical opinion of Prebish's treating source, who opined that she was completely disabled. (Tr. 20-21.) Second, the ALJ also gave "little overall weight" to the opinion of the state agency expert, Dr. Cunningham. (Tr. 21.) Thus, in this case, the ALJ fashioned a mental RFC assessment for Prebish that was unsupported by any medical opinion. Such a course is particularly problematic since generally an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016) (citing Thanh Tam Vo v. Colvin, No. 1:14-CV-00541-GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015)) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC).
Moreover, the manner in which the ALJ discounted the state agency expert opinion creates further questions, which undermine the confidence that can be placed in this decision. The ALJ's decision noted that Dr. Cunningham found that Prebish experienced "moderate difficulties in maintaining concentration, persistence and pace." (Tr. 21.) The ALJ also observed that this state agency expert found that Prebish "retains the ability to perform simple, one or two-step tasks." (Tr. 21.) However, when the ALJ decided to give this opinion "little overall weight," the ALJ stated that he "f[ound] that she is more limited than the opinion indicates." (Id.) (emphasis added).
The clear import of this statement was that Prebish could do less than the state agency expert opined, yet the RFC fashioned by the ALJ actually indicated that she could do more that the agency expert suggested. On this score, the mental RFC fashioned here simply stated that Prebish was "limited to work that is simple, routine, and repetitive." (Tr. 17.) Thus, the mental RFC did not incorporate Dr. Cunningham's recommended limitations on concentration, persistence and pace. Nor did it limit Prebish to one or two step tasks, workplace limitations that Dr. Cunningham suggested were necessary. The failure to incorporate or address these limitations is particularly acute here since the ALJ also plainly "f[ound] that [Prebish] is more limited than the opinion indicates." (Id.) Given the finding that Prebish is more limited than Dr. Cunningham stated, the failure to address these limitations found by the doctor is highly problematic. This incomplete analysis runs afoul of the principle that, in many instances, an RFC that merely limits a claimant to performing simple repetitive tasks does not fully capture the additional limitations than a claimant may face if she also suffers from moderate limitations on concentration or may only perform one or two step tasks. Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004).
The apparent inconsistencies in this analysis are then heightened by the fact that ALJ found at Step 5 of this sequential analysis that Prebish could perform other work in the regional economy, including work as a video surveillance monitor or credit authorizer. (Tr. 23.) Both of these job positions are defined in the Dictionary of Occupational Title as jobs which require level 3 reasoning; that is, the ability to: "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems involving several concrete variables in or from standardized situations." DICOT 249.367-022 (G.P.O.), 1991 WL 672327 (credit authorizer); DICOT 379.367-010 (G.P.O.), 1991 WL 673244 (video surveillance monitor). Thus ALJ found that Prebish could do level 3 reasoning jobs, but did not reconcile that finding with the RFC that limited her to "work that is simple, routine, and repetitive." (Tr. 17.) The ALJ also did not explain how Prebish could perform work which exceeded the mental limitations found by every acceptable medical source that evaluated the plaintiff. Nor did the ALJ's decision reconcile this level 3 reasoning work with the ALJ's conclusion that Prebish "is more limited than the [state agency expert] opinion [which indicated that she had moderate limitations in concentration but could perform simple one or two step tasks] indicates." (Tr. 21.)
As to this issue, while we agree that Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014), holds that "there is no bright-line rule stating whether there is a per se conflict between a job that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine work," the absence of a bright-line rule is simply the beginning of our analysis, and not the conclusion of that analysis. Rather, "[t]he court in Zirnsak declined to find a per se conflict, but instead focused its analysis on 'whether a failure to inquire about or reconcile a conflict caused any harm to the claimant' to determine whether remand was necessary." Upshur v. Colvin, 200 F. Supp. 3d 503, 512 (E.D. Pa. 2016) (quoting Zirnsak, 777 F.3d at 618)). Here, we find the ALJ's failure to reconcile these level 3 reasoning tasks with the finding that Prebish could only perform simple repetitive tasks is potentially prejudicial to Prebish for at least two reasons. First, the ALJ's mental RFC decision largely rejected all of the medical source opinions, which uniformly assessed Prebish's reasoning functions at levels lower than those prescribed by reasoning level 3. Second, the potential prejudice resulting from this apparent inconsistency is heightened in this case, where the ALJ seemingly found that Prebish's abilities exceeded the limitations found by the state agency expert, but at the same time held that "[Prebish] is more limited than the [state agency expert] opinion indicates." (Tr. 21.)
Taken together, we submit that these internal inconsistencies compel a remand for further evaluation, assessment and articulation of this medical evidence. Yet while we conclude that a remand is warranted here, we note that nothing in this Report and Recommendation should be deemed as expressing a judgment on what the ultimate outcome of any reassessment of this evidence should be. Rather, the task should remain the duty and province of the ALJ on remand.
IV. Recommendation
Accordingly, IT IS RECOMMENDED that Prebish's request for a new administrative hearing should be GRANTED, the final decision of the Commissioner denying these claims should be vacated, and this case should be remanded to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Submitted this 10th day of June, 2019.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge