Opinion
Civil Action 4:22-CV-1476
08-07-2023
ROBERT M.,[1]Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant
MANNION, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Robert M. (“Plaintiff”), an adult who lives in the Middle District of Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to the undersigned magistrate judge to issue a report and recommendation. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, we find the Commissioner's final decision is not supported by substantial evidence. Accordingly, it is RECOMMENDED that the Commissioner's final decision be VACATED and that this case be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
II. BACKGROUND & PROCEDURAL HISTORY
On July 8, 2019, Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 13; Doc. 9-2, p. 14). In this application, Plaintiff initially alleged he became disabled on January 27, 2016, but then amended his onset date to January 12, 2019. Id. He was forty-seven years old on his amended onset date. He alleges that he is unable to work due to the following conditions: asthma, chronic airway obstruction, COPD, bronchitis, chronic back pain, arthritis in the hand, hip and back, diabetes, diabetic nerve disorder, peripheral circulatory disorder, hernia, hypertension, depression, and sleep apnea. (Admin. Tr. 234; Doc. 9-6, p. 5). Plaintiff alleges that the combination of these conditions affects his ability to walk, sit, stand, use his hands, and tolerate exposure to very hot or very cold environments. (Admin. Tr. 38-48; Doc. 9-2, pp. 39-49). Plaintiff has an eighth grade education. (Admin. Tr. 39; Doc. 9-2, p. 40).
Plaintiff's amended onset date corresponds to one day after a previous application for benefits was denied by a different ALJ. (Admin. Tr. 90-107; Doc. 93, pp. 33-50).
On November 26, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 13; Doc. 9-2, p. 14). On July 10, 2020, Plaintiff's application was denied on reconsideration. Id. On August 25, 2020, Plaintiff requested an administrative hearing. Id.
On February 18, 2021, Plaintiff, assisted by his counsel, appeared and testified during a telephone hearing before Administrative Law Judge Theodore Burock (the “ALJ”). (Admin. Tr. 13, 26; Doc. 9-2, pp. 14, 27). On April 22, 2021, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 26; Doc. 9-2, p. 27). On June 23, 2021, Plaintiff requested review by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 211; Doc. 9-1, p. 105).
On July 18, 2022, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 9-2, p. 2).
On September 21, 2022, Plaintiff filed a complaint in this Court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying his application “is not supported by substantial evidence and is based on the incorrect application of legal principles and the application of incorrect legal principles.” (Doc. 1, ¶ 13). As relief, Plaintiff requests that the court reverse the ALJ's decision and either award benefits or remand this case to the Commissioner for a new hearing. (Doc. 1, ¶ 14).
On November 21, 2022, the Commissioner filed an answer. (Doc. 8). In the answer, the Commissioner maintains that the decision denying Plaintiff's application is correct, was made in accordance with the law and regulations, and is supported by substantial evidence. (Doc. 8, ¶ 9). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 9).
Plaintiff's Brief (Doc. 10), the Commissioner's Brief (Doc. 13), and Plaintiff's Reply (Doc. 14) have been filed. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing judicial review of social security appeals, and the sequential evaluation process the ALJ is required to follow. We will also discuss the administrative guidelines for evaluating a claimant's statements about the intensity, persistence, or limiting effects of his or her symptoms, as it is relevant to an argument raised in this case.
A. Substantial Evidence Review - the Role of This Court
A district court's review of ALJ decisions in social security cases is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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.” Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the record. 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.” In determining if the Commissioner's decision is supported by substantial evidence under sentence four of 42 U.S.C. § 405(g) a court may consider any evidence in the administrative record made before the ALJ.
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).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Consolo v. Fed. MaritimeComm'n, 383 U.S. 607, 620 (1966).
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals Council has denied review the district court may affirm, modify, or reverse the Commissioner's decision, with or without a remand based on the record that was made before the ALJ (Sentence Four review).”). The claimant and Commissioner are obligated to support each contention in the argument section of their briefs with specific reference to the page of the record relied upon, where appropriate. L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (“parties . . .bear the responsibility to comb the record and point the Court to the facts that support their arguments.”); Ciongoli v. Comm'r of Soc. Sec., No. 15-7449, 2016 WL 6821082 (D.N.J. Nov. 16, 2016) (noting that it is not the Court's role to comb the record hunting for evidence that the ALJ overlooked).
The Supreme Court has underscored the limited scope of district court review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.__,__, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). 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).
To determine whether the final decision is supported by substantial evidence, the court must decide not only whether “more than a scintilla” of evidence supports the ALJ's findings, but also whether those findings were made based on a correct application of the law. In doing so, however, the court is enjoined to refrain from trying to re-weigh evidence and “must not substitute [its] own judgment for that of the fact finder.”
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 ....”).
Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
Furthermore, meaningful review cannot occur unless the final decision is adequately explained. 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 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).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
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.” 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. 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(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 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”).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis.
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); 20 C.F.R. § 404.1545(a)(1).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her from engaging in any of his or her past relevant work. Once this burden has been met by the claimant, it shifts to the Commissioner at step five 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.
C. Guidelines For An ALJ's Symptom Evaluation
In social security cases, “symptoms” are defined as the claimant's “own description of [his or her] physical or mental impairments.” The Social Security Regulations and Rulings set out a two-step process to evaluate a claimant's symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. If there is no medically determinable impairment, or if there is a medically determinable impairment but that impairment could not reasonably be expected to produce the claimant's symptoms, an ALJ will not find that those symptoms affect the claimant's ability to perform work-related activities. An ALJ does not consider whether the severity of an individual's symptoms is supported by the objective medical evidence at the first step of this analysis.
SSR 16-3p, 2017 WL 5180304, at *4.
SSR 16-3p, 2017 WL 5180304, at *3.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms caused by the claimant's medically determinable impairments.SSR 16-3p explains:
If an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and the other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities for an adult. . . . In contrast, if an individual's statements about the intensity, persistence, and limiting effects of symptoms are inconsistent with the objective medical evidence and the other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities or abilities to function independently, appropriately, and effectively in an age-appropriate manner.
We may or may not find an individual's symptoms and related limitations consistent with the evidence in his or her record. We will explain which of an individual's symptoms we found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions. We will evaluate an individual's symptoms considering all the evidence in his or her record.
SSR 16-3p, 2017 WL 5180304, at *8.
When evaluating a claimant's symptoms, an ALJ considers objective evidence, a claimant's statements about the intensity, persistence and limiting effects of his or her symptoms, statements made by medical sources in opinions and treatment records, and statements about a claimant's symptoms made by nonmedical sources. This evidence is evaluated based on the following factors:
(1) the claimant's daily activities;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any factor that precipitates or aggravates the claimant's pain or other symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms;
(5) any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms;
(6) any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) any other factors concerning functional limitations and restrictions due to pain or other symptoms.
The ALJ is required to discuss the factors pertinent to the evidence of record, but will not discuss a factor where it is not relevant.
SSR 16-3p, 2017 WL 5180304, at *8.
Although the “statements of the individual concerning his or her symptoms must be carefully considered . . . the ALJ is not required to credit them.” The ALJ is, however, required to explain which of an individual's symptoms he or she finds consistent or inconsistent with the evidence in the record.
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).
SSR 16-3p, 2017 WL 5180304, at *8.
Some claimants may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other claimants with the same medical impairments, objective evidence, and non-medical evidence. For this reason, district courts have recognized that an ALJ, as the factfinder, is in a better position to evaluate a claimant's symptoms, and generally afford great deference to an ALJ's symptom evaluation. With this understanding of the relevant legal principles, we now turn to the specifics of this appeal.
SSR 16-3, 2017 WL 5180304, at *4.
IV. DISCUSSION
Plaintiff raises the following issues in his statement of errors:
(1) “The ALJ reversibly erred in discounting the agency examining expert.” (Doc. 10, p. 1) (capitalization omitted).
(2) “The ALJ failed to properly evaluate Mr. [M.'s] subjective allegations.” Id. (capitalization omitted).
We will begin our analysis by summarizing the ALJ's decision, and then will discuss Plaintiff's second argument. Because we find that Plaintiff's second argument provides a basis for remand, we will not address his remaining argument.
A. The ALJ's Decision Denying Plaintiff's Application
In his April 2021 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through December 31, 2019. (Admin. Tr. 15; Doc. 9-2, p. 16). Then, Plaintiff's application was evaluated at steps one, two, three, and five of the sequential evaluation process.
See 20 C.F.R. § 404.1520(h) (“If we do not find you disabled at the third step, and we do not have sufficient evidence about your past relevant work to make a finding at the fourth step, we may proceed to the fifth step of the sequential evaluation process. If we find that you can adjust to other work based solely on your age, education, and the same residual functional capacity assessment we made under paragraph (e) of this section, we will find that your are not disabled and will not make a finding about whether you can do your past relevant work at the fourth step.”).
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between January 12, 2019, (Plaintiff's amended onset date) and December 31, 2019, (Plaintiff's date last insured) (“the relevant period”). (Admin. Tr. 15; Doc. 9-2, p. 16).
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: lumbar disc disease, COPD/Asthma, right hip osteoarthritis and bursitis, right knee osteoarthritis, diabetes mellitus with neuropathy, obesity, obstructive sleep apnea, and hernia. (Admin. Tr. 15-18; Doc. 9-2, p. 16-19). The ALJ also found that Plaintiff had the following medically determinable non-severe impairments: history of cardiac dysfunction, history of shoulder impingement, history of carpal tunnel syndrome and arthritis in the thumbs, history of fatty liver disease, and history of hypertension, depression and anxiety. The ALJ found that Plaintiff's alleged non-healing ulcer and tooth decay/gum disease are not medically determinable.
At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 18-19; Doc. 9-2, pp. 19-20).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in sedentary work as defined in 20 C.F.R. § 404.1567(a) except Plaintiff is limited to the performance of:
routine, repetitive tasks, occasional ramps and stairs, balance, stoop, kneel, crouch, and crawl, feeling with left upper extremity limited to frequent, no concentrated exposure to extreme heat or cold, humidity, vibration, fumes, odors, dust, gases, and poor ventilation, no ladders, ropes, or scaffolds or other hazards, such as heights or machinery.(Admin. Tr. 19; Doc. 9-2, p. 20).
At step four, the ALJ found that Plaintiff's past relevant work was not material because all potentially applicable medical-vocational guidelines would direct a finding of not disabled. (Admin. Tr. 24; Doc. 9-2, p. 25).
At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 24-25; Doc. 9-2, pp. 25-26). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: nut sorter (food), DOT# 521.687-086; final assembler, DOT# 713.687-018; and bonder, semiconductor, DOT# 726.685-066. (Admin. Tr. 25; Doc. 9-2, p. 26).
B. The ALJ's Evaluation of Plaintiff's Statements Is Not Adequately Explained
In his decision, the ALJ noted that Plaintiff testified that he is limited by:
chronic pain and respiratory symptoms with limited walking, about half-a-block, and standing for only 5-minutes at a time. He testified to a history of diabetes, weight gain, COPD, and sleep apnea for which he was prescribed supplemental oxygen (Hearing Testimony).(Admin. Tr. 20; Doc. 9-2, p. 21).
A more detailed review of Plaintiff's hearing testimony reveals that Plaintiff reported constant, severe pain in his hips, knee, right elbow, lower back, and feet. During a consultative examination he reported symptoms in both hands. His testified that his doctors discussed the possibility of doing surgery, but ultimately decided against it because they worried he would not be able to heal properly due to his diabetes. Plaintiff was prescribed medication for his foot pain (the result of diabetic neuropathy) but was directed to use over the counter medications for his orthopedic pain (in his hips, knee, elbow, and back) because “no one wants to [give] you anything that's a little stronger anymore.” (Admin. Tr. 41; Doc. 9-2, p. 42). Plaintiff takes three different inhalers to manage his COPD symptoms. Plaintiff also has sleep apnea. He testified that he tried a CPAP machine, but it “just didn't work” for him and made him feel like he was suffocating. His doctors put him on oxygen instead.
As far as the functional limitations these physical impairments cause, Plaintiff reported that his hands cramp up, and he tries not to use them. He reported that he can walk for “maybe half a block” before needing to sit down and catch his breath for five to ten minutes. Plaintiff testified that he takes naps during the day due to the poor quality of his sleep.
As far as his mental health-related impairments, Plaintiff reported that he is treated for depression and anxiety. His primary care physician prescribes Prozac for depression. His anxiety causes him to have panic attacks. He estimated that he has two panic attacks per week.
At the first step of the symptom evaluation under 20 C.F.R. § 404.1529, the ALJ found that Plaintiff's medically determinable impairments could reasonably cause pain, respiratory symptoms during physical exertion, weight gain, and poor sleep. At the second step of the symptom evaluation, however, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. To support his conclusion the ALJ explains:
The undersigned finds that the claimant's allegations regarding the limiting effects of his alleged conditions are not supported by the record. While the combination of the claimant's severe impairments limits his ability to perform work to the sedentary exertional level, as opposed to the light level with the option to alternate sitting and standing as previously found in the prior January 11, 2019 decision, the medical evidence of record does not support a finding of disability in this case. The record specific to the period at issue in this case, from the amended alleged onset date of January 12, 2019, through the date last insured of December 31, 2019, shows that his treatment was overall routine and conservative in nature. While the combination of the claimant's various orthopedic complaints results in exertional limitations, his x-rays of the right hip and pelvis showed a slight bone spur and some narrowing at the superior aspect of the right acetabulum. His lumbar spine x-rays showed slight disc degeneration at the L5-S1 area and he was found to present with good range of motion at the knee and ankle in February 2019 (Exhibit B3F and B9F). His subsequent orthopedic complaints beginning in mid-December 2019 were secondary to a reported trip and fall with his resulting orthopedic assessment indicating a right knee contusion and lumbar strain based on his presentation on January 2, 2020, and for which he underwent a right knee steroid injection, as he reported that such treatment had worked well in the past (Exhibit B9F). The record indicates that the claimant has a history of asthma/COPD. In May 2019, Dr. Black described the claimant's COPD as “mild” and with his subsequent treatment note from later that month indicating resolution of his wheezing. The claimant has a history of an umbilical hernia. Dr. Black noted that the claimant's abdominal mass was non-tender and was not growing in size or interfering with his daily life generally. He had a prior evaluation for surgery for the hernia but with no resulting procedure due to the claimant's elevated A1c at the time at 9.9. However, the record indicates that during the period at issue, the claimant was noted to have improvement in his A1c, improved to 7.6, and that his diabetic neuropathy was managed with Lyrica (Exhibit B4F
and B11F). While the claimant had improvement in his A1c, he did experience some weight gain and his sleep apnea remained untreated due to his reported in ability to tolerate the use of a CPAP. Given this and the overall impact his untreated sleep apnea was likely having on his overall health during the period at issue, the record supports a limitation to routine, repetitive tasks as set forth in the residual functional capacity above. However, the claimant's January 16, 2020, evaluation with pulmonology, which occurred less than a month after the date last insured, indicates that supplemental oxygen was prescribed secondary to his sleep apnea and also indicates that his complaints of worsening COPD symptoms occurred in the setting of Spirivia [sic] being stopped. That medication was added back to his regimen that day (Exhibit B12F). Based on the foregoing, the undersigned finds the claimant has the above residual functional capacity assessment, which is supported by the medical evidence of record and the opinions of the State agency medical consultants.(Admin. Tr. 23-24; Doc. 9-2, pp. 24-25) (emphasis added).
Plaintiff argues that the ALJ did not adequately explain why the nature of Plaintiff's treatment weighed against crediting Plaintiff's statements about the intensity, persistence, and limiting effects of his symptoms. (Doc. 10, p. 7). To support his argument, Plaintiff cites to: Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); Pratt v. Colvin, No. 12-CV-8983, 2014 WL 1612857, at *7 (N.D. Ill. Apr. 16, 2014); Wenzel v. Colvin, No. 2:13-CV-433-JEM, 2015 WL 880581, at *7 (N.D. Ind. Feb. 27, 2015); and Lapierre-Gutt v. Astrue, 382 Fed.Appx. 662, 664 (9th Cir. 2010).
In Myles, the claimant argued that the ALJ did not consider her explanations for her failure to comply with prescribed treatment for diabetes, which included. significant side effects from metformin (hair loss and gastrointestinal problems), or that her blood glucose testing supplies were not covered by her insurance. 582 F.3d at 677. The Seventh Circuit remanded this case because the ALJ's determination in this regard lacked adequate discussion. Id. In Pratt, a district court remanded where an ALJ discounted the claimant's statements about the intensity of her knee pain because the claimant was never referred to physical therapy or for treatment at a pain clinic. 2014 WL 1612857, at *7. The Court acknowledged that a failure to follow prescribed treatment could be a basis for remand, but concluded that the ALJ's “implication that Pratt would have been referred to physical therapy or for treatment at a pain clinical if she really had been disabled by pain ‘impermissibly substitutes the ALJ's personal observations for the considered judgment of medical professionals.'” Id. The passage of Wenzel Plaintiff cites relates to an ALJ's evaluation of the weight afforded to a medical opinion under 20 C.F.R. § 404.1527. 2015 WL 880581, at *7. The Court found that substantial evidence did not support the ALJ's analysis of the medical opinion because the ALJ did not identify which medical evidence contradicted the physician's opinion. This section of the opinion is not relevant to Plaintiff's symptom evaluation argument under 20 C.F.R. § 404.1529. In another section of the same opinion, however, the Court addressed a symptom evaluation argument. The Court found that substantial evidence did not support the ALJ's symptom evaluation because he “improperly relied on Plaintiff's failure to seek treatment to find her less than credible even though the record indicated that “financial constraints kept her from being able to afford certain prescriptions, including preventing her from filing [sic] a prescription for Lyrica to treat her fibromyalgia.” Id. at *4. In Lapeirre-Gutt, the Ninth Circuit Court of Appeals found that substantial evidence did not support an ALJ's analysis of a claimant's statements about the intensity, persistence, and limiting effects of her symptoms for multiple reasons. One reason was that the ALJ characterization of the claimant's treatment as “conservative” overlooked the fact that the claimant underwent surgical fusion surgery in the past, and because the record did not reflect that more aggressive treatment options were appropriate or available. 382 Fed.Appx. 664. A second reason was that the ALJ discredited the claimant's allegations of disabling pain because the claimant did not follow a prescribed treatment of physical therapy without considering evidence that the claimant tried physical therapy in the past and found it to be ineffective, and evidence that the claimant did not have reliable transportation to her physical therapy sessions. Id.
In response, the Commissioner argues that the ALJ adequately explained his evaluation of Plaintiff's statements about the intensity, persistence and limiting effects of his symptoms. Specifically, she contends: (1) the ALJ did not err in characterizing Plaintiff's treatment as “routine and conservative;” and (2) the ALJ did not impermissibly “play doctor” when he recognized that “Plaintiff's own providers did not indicate that more intensive forms of treatment were not recommended,” (Doc. 13, p. 33).
Although the ALJ cited a proper basis to discount Plaintiff's statements, he did not adequately explain his rationale. The Commissioner is correct that ALJs can and have characterized a course of treatment like the one Plaintiff received as conservative. However, “[t]here is no bright-line rule for what constitutes ‘conservative' versus ‘radical' treatment.” The ALJ's use of the term “conservative care” in this case, is not accompanied by any clear discussion of what care Plaintiff actually received or an explanation of why that care is inconsistent with his statements about the intensity, persistence or limiting effects of the diverse physical and mental health-related symptoms he reports. As such, we find that substantial evidence does not support the ALJ's analysis of Plaintiff's medical care as a basis to discount his statements.
Krista M. v. Kijakazi, Civ. No. MJM-21-2474, 2023 WL 2500306, at *6 (D. Md. Mar. 14, 2023) (discussing an ALJ's characterization of mental health treatment as “conservative” to support a conclusion that a medical source opinion was less persuasive).
Next, we must consider whether the lack of explanation requires remand in this case. We find that it does. The ALJ gave only two reasons for discounting Plaintiff's statements: (1) their inconsistency with the objective evidence; and (2) their inconsistent with the “conservative care” provided. As explained above, substantial evidence does not support the second reason because it is not adequately explained. As to the first reason, the Commissioner's regulations are clear that an ALJ cannot discount a claimant's testimony solely because it is not substantiated by objective evidence. Furthermore, Plaintiff testified to a greater degree of limitation than appears to be accounted for in the RFC assessment. Given the lack of explanation to support the ALJ's 20 C.F.R. § 404.1529 analysis, and the fact that Plaintiff attested to a greater degree of limitation than was incorporated in the RFC assessment, we find that remand is required.
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (Remand is not required unless there is reason to believe that it might lead to a different result.).
20 C.F.R. § 404.1529(c)(2) (“we will not reject your statements about the intensity and persistence of your symptoms or about the effect your symptoms have on your ability to work solely because they available objective medical evidence does not substantiate your statements.”).
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The final decision of the Commissioner be VACATED.
(2) This case be REMANDED to the Commissioner for further proceedings to sentence four of 42 U.S.C. § 405(g).
(3) Final judgment be issued in favor of Robert M..
(4) The Clerk of Court be DIRECTED to close this case.
BY THE COURT
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the 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.