Opinion
Civil No. 3:18-CV-2006
06-26-2019
KIMBERLY CAROL SPENCER, Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
Kimberly Spencer's Social Security appeal presents us with a striking set of facts. For the past 17 years, Spencer has been plagued by random fainting spells. These episodes are preceded by moments of severe vertigo before Spencer descends into brief unconsciousness. When she emerges from this unconscious state, Spencer frequently endures migraine attacks, coupled with profound emotional distress. For many years, these attacks have occurred on an intermittent, but frequent basis, with Spencer collapsing into an unconscious state on average once a week. Due to these attacks, Spencer's former employer came to deem her disabled, and later discharged her, concluding that they could not accommodate these episodes of unconsciousness in the workplace. Spencer, who was now unemployed due to this disability, sought disability benefits, but those benefits were denied.
The decision to deny Spencer's disability claim rested upon a rationale which was both simple, and simply inadequate. The ALJ found that Spencer could perform a range of light work with some additional functional limitations. Specifically, the ALJ found that, although Spencer suffers from syncope, which causes her to pass out on average once per week, Spencer could perform light work as long as she was able to take one unscheduled five-minute break per week. The accommodation of one unscheduled five-minute break per week was presumably the ALJ's way of accounting for those frequent, inevitable instances in which Spencer would collapse, unconscious, at work.
In our view, more is needed here to in order to fairly assess this claim. After a review of the record, including the extensive medical history of the plaintiff's fainting spells, we find that the ALJ's RFC determination is not supported by substantial evidence. Accordingly, we recommend that this case be remanded for further consideration.
II. Factual Background
A. Spencer's Medical History
Ms. Spencer filed for disability insurance benefits on September 9, 2015 and filed an application for supplemental security income on September 25, 2015. (Tr. 15.) She was 42 years old as of the alleged onset date of July 31, 2014 and had a high school education and past work as a sales representative. (Tr. 15, 160.) Spencer alleged impairments of syncope, or fainting, severe migraines, low blood pressure, anxiety, depression, and sleep disorder. (Tr. 159.)
While the medical record in this case is extensive and contains records of Spencer's multiple impairments, this Report and Recommendation will focus only on the records concerning the plaintiff's syncope, as we are recommending remand on this basis.
With respect to her syncope, Spencer was seen and treated by several medical professionals over the course of almost two decades. Treatment notes from Dr. Turner, M.D., from March 2015 reveal that Spencer had a 17-year history of intermittent syncope. (Tr. 567.) Before 2011, it had occurred only when Spencer was standing, but after 2011, it occurred unprovoked or while Spencer was sitting down, as well. (Id.) In April of 2014, Spencer reported recurring dizziness to her treating physician, Dr. Straub. (Tr. 1023.) Dr. Straub's assessment was that Spencer suffered from vertigo and suggested she see a specialist. (Tr. 1023-24.)
In June 2014, Spencer was brought to the emergency room after she had fainted during work. (Tr. 625-26.) Spencer's coworkers reported that she had fallen from her chair and was unresponsive for a few minutes, and that she had similar episodes in the past. (Id.) Then, during a visit to Dr. Straub in July of 2014, Spencer fainted in the waiting room. (Tr. 1019.) Dr. Straub's treatment notes state: "Patient sitting in chair in waiting room and suddenly feeling dizzy and faint. Daughter reports pt was leaning forward then falling out of chair onto carpeted floor. Pt was unresponsive for several seconds, then responded to verbal stimuli." (Tr. 1019.) Spencer was admitted to the hospital after the incident, (Tr. 600), and during a follow up with Dr. Straub on July 16, 2014, was referred to a specialist for her syncope. (Tr. 1018.)
Spencer was seen by Trent Shultz, CRNP, at Danville Cardiology in July 2014. (Tr. 596.) She was diagnosed with vasovagal syndrome, which may lead to syncopal events. (Tr. 598.) Spencer was advised to recognize the warning signals and to lay down in order to prevent injury from falling. (Id.) In August 2014, it was reported that Spencer continued to have fainting spells and suffered from daily headaches. (Tr. 591.) Spencer was also seen at Geisinger Medical Center in September 2014 after she had another episode of unconsciousness. (Tr. 585.) She had reported that she had chest pain and noted that it could have been from falling on the floor during one of her syncopal episodes. (Id.) On September 17, 2014, Spencer was again seen at Geisinger when she fell face-first onto the ground during an episode and reported having similar episodes twice per week since January. (Tr. 579.) Then in October 2014, Spencer reported to the Balance Center that she became dizzy while in the shower and fell. (Tr. 574.)
In October 2014, it was noted that Spencer was seeing a neurologist, and that her syncope was "triggered by prolonged sitting/standing/walking and emotional stressors." (Tr. 1016.) In November, Spencer was being evaluated by cardiology for her frequent syncope, and it was noted that she was experiencing side effects despite the medications she was taking. (Tr. 1014.) In December 2014, Spencer was seen at Geisinger after complaining of nausea and a headache, and she was diagnosed with right posterior canal BPPV. (Tr. 570.) Additionally, at a visit to Dr. Straub in December 2014, Spencer was taken to the emergency room after complaining of dizziness and feeling as if she was going to pass out. (Tr. 1013.)
Spencer's symptoms and episodes continued into 2015. Thus, in January 2015, Spencer was discharged from physical therapy treatment due to "[i]ncreased episodes of unconsciousness." (Tr. 362.) In March, Spencer was seen by Danville Neurology and it was noted that her spells had continued, and that her episodes were unprovoked. (Tr. 567.) In May 2015, it was reported that Spencer was still experiencing syncope every couple of weeks, and that there was no apparent cause. (Tr. 565.) Treatment notes indicate that Spencer experienced lightheadedness and dizziness prior to her episodes, and that emotional stress seemed to exacerbate her symptoms. (Id.)
CRNP Shultz filled out a cardiac medical source statement in 2016. He diagnosed Spencer with vasovagal syncope with a good prognosis. (Tr. 992.) He indicated that Spencer's symptoms included chest pain, weakness, syncope, dizziness, and chronic fatigue, and noted that she was incapable of even low stress work. (Tr. 992-93.) Shultz stated that Spencer's symptoms caused emotional difficulties, and that emotional factors contributed to Spencer's symptoms and limitations. (Tr. 993.) Ultimately, he opined that Spencer would likely be absent from work at least 4 days per month, that she would be off task twenty-five percent of the time, but stated that she would not need unscheduled breaks during the day. (Tr. 993-94.)
Dr. Turner of Geisinger Neurology, whom the plaintiff saw beginning in 2010, also wrote a letter on her behalf in 2016. (Tr. 991.) In this letter, Dr. Turner opined that Spencer's ongoing migraines and syncope will affect her ability to work, and that her symptoms may not completely resolve. (Id.)
Dr. Straub also filled out a medical source statement related to Spencer's disability application in 2017. Dr. Straub indicated that he had treated Spencer for dizziness since 2009 and diagnosed her with orthostatic hypotension. (Tr. 1836.) He opined that Spencer's episodes typically last 30 minutes, and that she has about a 5-minute warning before the episode begins. (Id.) He also identified symptoms associated with the dizziness, including falling, fatigue/exhaustion, and mental confusion/inability to concentrate. (Tr. 1837.) Ultimately, he concluded that Spencer was incapable of even low stress work, and that she would need an unscheduled break every two hours, lasting at least 15 minutes. (Tr. 1838.) He additionally noted that she would likely be absent from work at least 4 days per month and would be off task twenty percent of the time. (Id.)
At the administrative hearing, Spencer testified that she gets dizzy and passes out at least one time per week. (Tr. 44.) She stated that she gets symptoms about four minutes before she passes out, including headaches, clamming up, achiness and fatigue. (Tr. 42.) She indicated that she tries to prepare for it by either sitting or lying down. (Id.) Once she passes out, she is out for anywhere between 20 seconds to one minute. (Tr. 43.) Spencer stated that once she comes to, she has a major headache that sometimes turns into a migraine, and that she is embarrassed and cries. (Id.) Additionally, she testified that her doctors have not been able to determine the cause of her passing out. (Id.) In addition to her passing out, Spencer also testified that she suffers from dizzy spells, which she gets two or three times per week. (Tr. 45.) She has similar warning signs before she gets dizzy and tries to sit or lay down when she feels the dizzy spell beginning. (Id.)
Despite her passing out and dizzy spells, Spencer was able to retain her driver's license, as she stated she is able to pull over to the side of the road if she feels herself getting dizzy. (Id.) However, she indicated that she was placed on short-term disability by her employer in July of 2014, and eventually terminated from her employment in April 2015 due to her employer's inability to accommodate her passing out. (Tr. 51-52.)
A Vocational Expert also testified at the administrative hearing. The ALJ posed a hypothetical to the VE, which asked the expert to identify jobs that an individual of the claimant's age, education and past work history could perform with the following limitations:
[A]ssume the individual is capable of performing a range of light work provided she can alternate positions occasionally; can take one unscheduled break per week, lasting approximately five minutes, with jobs that do not expose her to loud noises such as traffic noises. The job should not involve detailed instructions, and should be confined to routine, repetitive tasks with no assembly line production, and no more than occasional contact with the public.(Tr. 54.) Thus, the ALJ's hypothetical question to the expert did not make any reference to Spencer's fainting or dizzy spells. Instead, in an abstract and antiseptic way, the hypothetical merely included a weekly unscheduled five-minute break. In response to the ALJ's hypothetical, the expert identified the jobs of general office clerk, sorter/sampler, and hand packer as jobs the individual could perform. (Tr. 54-55.) However, when the plaintiff's counsel asked the expert whether these jobs would allow for an individual to lie down throughout the day, as Spencer does to prevent or prepare for her passing out or dizzy spells, the expert testified that there would be no jobs for such a hypothetical individual. (Tr. 56-57.) Therefore, the VE's testimony seemed to indicate that this condition was work-preclusive when the real-world impact of this frequent fainting was taken into account.
B. The ALJ's Decision
Spencer applied for disability insurance benefits on September 9, 2015 and filed for supplemental security income on September 25, 2015, alleging an onset date of July 31, 2014. Her initial application for benefits was denied on November 13, 2015. (Tr. 15.) Thereafter, Spencer requested a hearing, and a hearing was held on September 20, 2017. (Id.) At the hearing, both Spencer and a Vocational Expert testified. (Id.) By a decision dated November 28, 2017, the ALJ denied Spencer's application for benefits.
At the outset, the ALJ first concluded that Spencer met the insured status requirements of the Social Security Act through December 31, 2017, and that she had not engaged in any substantial gainful activity since her alleged onset date of disability, July 31, 2014. (Tr. 17.) At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Spencer had the following severe impairments: migraine, syncope, lumbar degenerative disc disease, osteoarthritis of the knee, anxiety, and depression. (Id.) The ALJ also noted that the plaintiff's significant gynecological conditions did not meet the criteria for a severe impairment, and that the record did not establish a medically determinable impairment of "sleep disorder." (Tr. 18.) At Step 3, the ALJ found that none of Spencer's impairments met or medically equaled a listed impairment. (Id.)
Between Steps 3 and 4, the ALJ fashioned a residual functioning capacity ("RFC"), taking into account Spencer's limitations from her impairments:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functioning capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) provided she can alternate positions occasionally, and take one unscheduled break per week lasting approximately five minutes, in jobs that do not expose her to loud noises such as traffic noises; the job should not involve detailed instructions and should be confined to routine repetitive tasks with no assembly line production work and no more than occasional contact with the public.(Tr. 21.)
Specifically, in making this RFC determination, the ALJ gave partial weight to the opinion of Dr. Straub, Spencer's treating physician. The ALJ reasoned that Dr. Straub's opinion regarding Spencer's syncope did not reflect an up-to-date familiarity with her treatment records and was not provided by one of Spencer's treatment specialists. (Tr. 25.) Dr. Straub had opined in 2017 that Spencer would need more supervision than other employees in a work setting, and that she needed an unscheduled 15-minute break every two hours. (Tr. 26.) The ALJ found that Dr. Straub's description of the plaintiff's episodes did not fully support his opinion, noting that the plaintiff's episodes seemed to be of short duration and that the plaintiff did not have a history of injury related to her passing out. (Id.)
The ALJ gave some weight to the statement of Dr. Turner, the plaintiff's neurologist who had treated her since 2010, which stated that Spencer's fainting spells would affect her ability to work. (Id.) The ALJ reasoned that the letter written by Dr. Turner was too vague to offer probative value in making the RFC determination, but noted that it was reasonable to believe that Spencer's syncope would have some effect on her ability to work. (Id.)
Finally, the ALJ gave somewhat less weight to the opinion of Trent Shultz, the CRNP whom the plaintiff saw at Danville Cardiology, as he was not an acceptable medical source as defined by the regulations. (Tr. 25.) The ALJ found that Shultz's opinion was inconsistent with his treatment records and with the record as a whole. (Id.) Shultz had opined that Spencer was incapable of even low stress work based on his interactions with her, and noted her complaints of fatigue, shortness of breath, and dizziness. (Id.) Further, Shultz stated that emotional factors likely contributed to Spencer's symptoms and limitations and opined that she would not need unscheduled breaks. (Id.) The ALJ considered this opinion and noted that Shultz's explanation was not persuasive, and additionally recognized that Shultz's opinion regarding Spencer's exertional limitations was inconsistent with Dr. Straub's opinion on the same. (Id.)
Thus, at Step 4, the ALJ found that Spencer could not perform her past relevant work as a customer sales representative or order selector, (Tr. 27), but found at Step 5 that there were jobs in the national economy that Spencer could perform, including a general office clerk, sorter sampler, and hand packer. (Tr. 28-29.) The Vocational Expert testified that this work was light, unskilled work with an SVP of 2. (Tr. 29.) Accordingly, the ALJ determined that Spencer was not disabled and denied her claim for benefits. (Id.) Spencer requested a review of the ALJ's decision, which was denied by the Appeals Council. (Tr. 1-3.) This appeal followed. (Doc. 1.)
On appeal, Spencer contends that the ALJ's decision is not based on substantial evidence as required under 42 U.S.C. § 405(g) because the ALJ gave little weight to the medical opinion provided by her treating physician, Dr. Straub This case is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, we recommend that the case be remanded for further consideration.
III. 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 Supreme Court has recently underscored for us the limited scope of our 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).
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 Title II of 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 a well-supported medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination 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, 129 F.Supp.3d at 214-15. 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 evidence and define medical opinions as "statements from acceptable medical sources that reflect judgments about the nature and severity of [the plaintiff's] impairments, including [the plaintiff's] symptoms, diagnosis and prognosis, what [he or she] can still do despite impairments, and [the plaintiff's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. § 404.1527(c).
In deciding what weight to accord to 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..."); 20 C.F.R. § 404.1502 (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. § 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). These benchmarks, which emphasize consideration of the nature of the treating relationship, also call for careful consideration of treating source opinions.
Indeed, this court has often addressed the weight which should be afforded to a treating source opinion in a Social Security disability appeals and emphasized the importance of such opinions for informed decision-making in this field. Recently, we aptly summarized the controlling legal benchmarks in this area in the following terms:
Under applicable regulations and the law of the Third Circuit, a treating medical source's opinions are generally entitled to controlling weight, or at least substantial weight. See, e.g., Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001)(citing 20 CFR § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)). Oftentimes referred to as the "treating physician rule", this principle is codified at 20 CFR 404.1527(c)(2), and is widely accepted in the Third Circuit. Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); See also Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). The regulations also address the weight to be given a treating source's opinion: "If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in your case, we will give it controlling weight." 20 CFR § 404.1527(c)(2). "A cardinal principle guiding disability, eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on continuing observation of the patient's condition over a prolonged period of time." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)(citations omitted); See also Brownawell v. Commissioner of Social Security, 554 F.3d 352, 355 (3d Cir. 2008). In choosing to reject the treating physician's assessment, an ALJ may not make "speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation, or lay opinion." Morales v. Apfel, supra at 317 .Morder v. Colvin, No. 3:16-CV-213, 2016 WL 6191892, at *10 (M.D. Pa. Oct. 24, 2016).
Accordingly, an ALJ may not unilaterally reject a treating source's opinion, and substitute the judge's own lay judgment for that medical opinion. Instead, the ALJ typically may only discount such an opinion when it conflicts with other objective tests or examination results. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-03 (3d Cir. 2008). Likewise, an ALJ may conclude that discrepancies between the treating source's medical opinion, and the doctor's actual treatment notes, justifies giving a treating source opinion little weight in a disability analysis. Torres v. Barnhart, 139 F. App'x 411, 415 (3d Cir. 2005). Finally, "an opinion from a treating source about what a claimant can still do which would seem to be well-supported by the objective findings would not be entitled to controlling weight if there was other substantial evidence that the claimant engaged in activities that were inconsistent with the opinion." Tilton v. Colvin, 184 F. Supp. 3d 135, 145 (M.D. Pa. 2016).
It is equally clear that an ALJ typically 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")).
Moreover, in all instances in social security disability cases the ALJ's decision, including any ALJ judgments on the weight to be given to treating source opinions, must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. Indeed, this principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). "Where a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). Therefore, the failure on the part of an ALJ to fully articulate a rationale for rejecting the opinion of a treating source may compel a remand for further development and analysis of the record.
D. This Case Should Be Remanded for Further Consideration and Articulation of the Grounds for the ALJ's Decision.
As we have noted, it is axiomatic that an ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. Furthermore, the ALJ must also "indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck, 181 F.3d at 433. The Court also notes that, while the Commissioner's regulations call for the consideration of all medical opinions, case law construing the regulations states a clear preference for the informed opinions of doctors who have actually treated or examined a claimant. Further, we recognize that in fashioning a residual functional capacity assessment for a claimant, an ALJ typically may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden, 191 F. Supp. 3d at 455 (citing Thanh Tam Vo, 2015 WL 5514981, at *4) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC)).
In the instant case, we conclude that the ALJ's RFC determination is not supported by an adequate explanation. The ALJ determined that Spencer could perform a range of light work with certain limitations, including one unscheduled five-minute break per week to account for her passing out. (Tr. 21.) In making this determination, the ALJ relied on Spencer's testimony that when she passes out, she is only out for about one minute, and that she has a four-minute warning before she passes out. (Tr. 27.) Thus, it would seem that the ALJ's accommodation of one five-minute break per week rested on the assumption that Spencer would be able to return to work immediately after experiencing one of her episodes. Indeed, the ALJ reasoned that the only after-effects that were noted by the medical opinions were embarrassment, crying, fatigue, and headaches, and additionally noted that Spencer had never been injured when she passed out. (Tr. 26.) The ALJ also reasoned that Spencer's activities of daily living, which included babysitting her grandchildren and driving a vehicle, were inconsistent with the severity of her condition as described by Spencer and by Dr. Straub. (Tr. 26-27.)
On this score, we cannot conclude that the ALJ's determination is supported by an adequate explanation. To the contrary, the medical evidence indicated a 17-year history of syncope and dizziness, including multiple instances in 2014 and 2015 where Spencer passed out and had to be taken to the emergency room. (Tr. 362, 567, 574, 579, 585, 591, 596, 598, 600, 625-56, 1013-14, 1016, 1018-19, 1023.) Spencer was being treated by her primary care physician, Dr. Straub, as well as specialists in cardiology and neurology, throughout the relevant time-period for her syncope. Treatment notes from these medical professionals indicate that Spencer's passing out and dizzy spells were ongoing, and that there was no obvious cause for her syncope. The records indicate that Spencer had to lie down in order to prevent or prepare for one of her episodes, and that she was fatigued and experienced migraines after she had an episode. Dr. Straub opined that Spencer would need multiple breaks throughout the workday, lasting at least fifteen minutes each. Additionally, both Dr. Straub and CRNP Shultz opined that Spencer would be absent from work at least 4 days per month.
Spencer also testified that she was placed on short-term disability by her employer in 2014 and eventually terminated in 2015 due to her employer's inability to accommodate her fainting spells. In a similar vein, the Vocational Expert, when asked by plaintiff's counsel, indicated that there would be no jobs that the plaintiff could perform if she was required to lay down at certain times in the day, which is what Spencer's doctors suggested she do to prepare for or to prevent a fainting spell.
Given this medical evidence and testimony, we conclude that the ALJ did not adequately explain how one five-minute unscheduled break would accommodate the plaintiff's syncope and fainting episodes. In our view, this RFC is inadequate for at least five reasons. First, it gives insufficient weight to the consensus of medical opinions, which recognized the profound effect of this persistent syncope upon Spencer's ability to work. Second, it understated the gravity of Spencer's symptoms, as described by the plaintiff herself, symptom severity that was consistent with the medical opinions and treatment records. Third, it ignored the VE testimony, which stated that if Spencer needed to routinely lie down to avoid or minimize the effects of these fainting episodes, she would be unemployable. Fourth, the weekly unscheduled five-minute break assumed that Spencer's attacks, while sudden, happen only once a week. Yet, the evidence suggests that these attacks are intermittent and occur on average once a week but may, on any given week, take place with greater or lesser frequency. Fifth, the ALJ's proposed RFC accommodation seems divorced from the realities of the workplace. As we have noted, the ALJ's determination seems to assume that the plaintiff is able to return to work immediately after experiencing the warning signs and subsequent fainting episode, an assumption that is largely contradicted by the medical evidence. Indeed, the medical evidence suggests that Spencer experiences migraines and extreme fatigue after she experiences a fainting episode. Moreover, on prior occasions when Spencer passed out at work, she was taken to the hospital to be checked out. Thus, the determination that Spencer could perform light work as long as she was given one five-minute unscheduled break is not supported by substantial evidence. Accordingly, we recommend that this case be remanded to the ALJ for further evaluation, development, and assessment of the medical record.
Because the Court has found a basis for remand on these grounds, we need not address Spencer's remaining arguments. To the extent that any other error occurred, it may be remedied on remand. Finally, 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 Spencer'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.Submitted this 26th day of June 2019.
/S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge