GETLER v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
MEMORANDUM OPINION, ORDER Remanding case for further proceedings. ORDERED that the Clerk shall close this case, etc. Signed by Judge Renee Marie Bumb on 11/27/2018. (rss, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
PATRICIA GETLER,
Civil No. 17-5330 (RMB)
Plaintiff,
MEMORANDUM OPINION & ORDER
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Patricia Getler from a denial of social security
disability benefits on February 3, 2016, which was upheld by the
Appeals Council on May 17, 2017. [Record of Proceedings, “R.P.”,
p. 1-5]
For the reasons set forth below, the Court vacates the
decision of the Administrative Law Judge (“ALJ”) and remands for
proceedings consistent with this Memorandum Opinion and Order’s
reasoning.
I.
STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to
disability benefits, a court must uphold the ALJ’s factual
1
decisions if they are supported by “substantial evidence.” Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g),
1383(c)(3).
scintilla.
“Substantial evidence” means “‘more than a mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Cons. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999).
In addition to the “substantial evidence” inquiry, the court
must also determine whether the ALJ applied the correct legal
standards. See Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir.
1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
The
Court’s review of legal issues is plenary. Sykes, 228 F.3d at 262
(citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d
Cir. 1999)).
The Social Security Act defines “disability” as the 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 twelve months.” 42
U.S.C. § 1382c(a)(3)(A).
The Act further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
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engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outlined in 20
C.F.R. § 404.1520(a)(4)(i-v).
In Plummer, 186 F.3d at 428, the
Third Circuit described the Commissioner’s inquiry at each step of
this analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 1520(a). If a claimant is found to
be engaged in substantial activity, the disability claim
will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that
[his] impairments are “severe,” she is ineligible for
disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any gainful
work. 20 C.F.R. § 404.1520(d).
If a claimant does not
suffer from a listed impairment or its equivalent, the
analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant
retains the residual functional capacity to perform her
past relevant work. 20 C.F.R. § 404.1520(d). The claimant
bears the burden of demonstrating an inability to return
to her past relevant work. Adorno v. Shalala, 40 F.3d 43,
46 (3d Cir. 1994). If the claimant is unable to resume
her former occupation, the evaluation moves to the final
step.
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At this [fifth] stage, the burden of production shifts to
the Commissioner, who must demonstrate the claimant is
capable of performing other available work in order to
deny a claim of disability. 20 C.F.R. § 404.1520(f). The
ALJ must show there are other jobs existing in significant
numbers in the national economy which the claimant can
perform, consistent with her medical impairments, age,
education, past work experience, and residual functional
capacity. The ALJ must analyze the cumulative effect of
all the claimant’s impairments in determining whether she
is capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the assistance
of a vocational expert at this fifth step. See Podedworny
v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).
II.
FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal, which is narrow.
Plaintiff was born in 1970, and was 40 years old at the
alleged onset date. [R.P., p. 11]
She applied for Social Security
Disability Benefits on July 31, 2012, alleging an onset of
disability of May 1, 2011. [Id.] 1
A disability hearing was held on August 7, 2015.
The ALJ
heard testimony from Plaintiff and the Vocational Expert.
The
administrative record contains extensive medical records
documenting Plaintiff’s ailments.
Consistent with Plaintiff’s
testimony at the hearing, the record demonstrates that Plaintiff’s
primary problem is her neck and back.
1
She suffers from both
At the disability hearing Plaintiff amended the alleged onset
date to May 1, 2012. [R.P., p. 11]
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cervical and lumbar degenerative disk disease with radiculopathy,
which cause her severe pain.
As reflected in the medical records
and the ALJ’s decision, Plaintiff has an extensive history of
taking opioid medications prescribed and managed by her primary
care physician, Dr. Winfield, in order to control her pain. [See
ALJ decision, R.P., p. 24-29, summarizing the medical records
concerning Dr. Winfield’s treatment of Plaintiff’s pain with
varying combinations of Percocet, Hydrocodone, Opana ER, Tylenol
#4, Roxicodone, Fentanyl, and MS Contin from 2010 through 2015]
III.
ALJ’S DETERMINATION
The ALJ concluded that “the claimant has not been under a
disability as defined in the Social Security Act from May 1,
2012.” [R.P., p. 43]
Relevant to the issue presented on appeal,
the ALJ found at step two of the five-step sequential analysis
that Plaintiff’s fatigue was not a severe impairment.
14]
[R.P., p.
Although the ALJ’s 34-page decision is lengthy and largely
comprehensive, the decision’s discussion of Plaintiff’s fatigue is
rather sparse. 2
The decision states,
The claimant reported to Dr. Winfield on May 28, 2015
that she was very fatigued and confused (Exhibit 11F).
As the decision discusses, Plaintiff’s alleged impairments were
numerous. Plaintiff alleged disability based on lumbar and
cervical degenerative disk disease, obesity, anxiety and major
depressive disorder, hypertension, migraines, asthma, thyroid
cancer, fatigue, confusion, acute sinusitis, kidney stones,
bronchitis, hay fever, indigestion, anemia, bilateral
nephrolithiasis, leg cramps, allergic rhinitis, gastroesophageal
reflux disease and contact dermatitis. [R.P., p. 14]
2
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She was to undergo an MRI of the liver.
The undersigned finds no diagnosis to establish a
medically determinable impairment related to the
claimant’s symptoms of fatigue and confusion (Exhibit
11F). There is no evidence that she underwent the MRI
Dr. Winfield ordered or the results of the study. As a
result, due to the absence of signs and laboratory
findings, the undersigned concludes that the claimant’s
fatigue and confusion are not medically determinable
(SSR 96-7p).
[R.P., p. 18]
Notably, Exhibit 11F, cited by the ALJ, documents that
Plaintiff was taking Oxycodone and MS Contin at the time she
complained of being “very fatigued.”
IV.
[R.P., p. 545]
ANALYSIS
Plaintiff argues that the ALJ’s determination that
Plaintiff’s fatigue is “not medically determinable,” and therefore
non-severe, is not supported by substantial evidence because the
ALJ apparently overlooked medical records provided by Dr. Winfield
and Dr. Sabia stating that Plaintiff’s pain medications “cause
fatigue.”
[R.P., p. 472]
In particular, Dr. Sabia’s Medical
Source Statement, dated August 19, 2015, states that a side effect
of Percocet is “drowsiness, lethargy, and/or fatigue” and that
Plaintiff will “unpredictably” “need to supine rest (lie down or
recline) for at least a total of 1½ - 2 hours . . . on a daily
basis.”
[R.P., p. 664]
Likewise, Dr. Winfield’s Physical
Residual Functional Capacity Questionnaire, dated May 14, 2012,
states that fatigue is a “side effect[] of [the] medication” used
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to treat Plaintiff’s “chronic neck pain.”
[R.P., p. 472]
Plaintiff argues that the ALJ’s decision demonstrates no
consideration of the conclusions reached by Dr. Winfield and Dr.
Sabia that Plaintiff’s pain medications, rather than any potential
problem with her liver, cause Plaintiff significant impairment-i.e., fatigue-- affecting her ability to work.
Thus, Plaintiff
reasons, the ALJ’s finding of “no diagnosis to establish a
medically determinable impairment related to the claimant’s
symptoms of fatigue” [R.P., p. 18] is undermined by the evidence,
and therefore not supported by substantial evidence.
In response, the Commissioner asserts that the ALJ “found the
evidence was insufficient to confirm an etiology for” Plaintiff’s
fatigue.
[Opposition Brief, p. 13]
The Court finds Plaintiff’s argument persuasive.
Nothing in
the ALJ’s decision suggests that the ALJ considered the evidence
of fatigue as a side effect of Plaintiff’s medications.
If the
ALJ did consider such evidence and rejected it, he must say so and
articulate a reason.
Cf. Stewart v. Sec’y of Health, Educ. &
Welfare of U.S., 714 F.2d 287, 290 (3d Cir. 1983) (“In this
instance the ALJ failed to provide any explanation for his
implicit rejection of Stewart’s testimony regarding the effects of
the [opioid] medication he took [for his back pain].
Had he
credited his testimony, the ALJ would have had to conclude, in
view of the vocational expert’s testimony, that Stewart’s ability
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to perform light or sedentary work was doubtful.
This in turn
might well have led to the conclusion that the claimant was
disabled.
In view of the ALJ’s complete failure to explain
whether Stewart’s testimony concerning the effects of his
medication was not credited or simply ignored, and his failure to
offer any justification for his action, we will remand the case to
the district court with instructions to remand it to the ALJ for
reconsideration and further findings.”); see generally, Figueroa
v. Sec’y of Health, Ed. & Welfare, 585 F.2d 551, 554 (1st Cir.
1978) (“At very least, the administrative law judge should have
made a finding on appellant’s claim regarding [medication] side
effects, making it possible for a reviewing tribunal to know that
the claim was not entirely ignored.
We conclude, therefore, that
good cause is shown to remand to the Secretary.”).
“The Third Circuit has held that access to the Commissioner’s
reasoning is [] essential to a meaningful court review.”
Sanford
v. Comm’r of Soc. Sec., No. CIV. 13-0366 NLH, 2014 WL 1294710, at
*2 (D.N.J. Mar. 28, 2014)(citing Gober v. Matthews, 574 F.2d 772,
776 (3d Cir. 1978));
see also Stockett v. Comm’r of Soc. Sec.,
216 F. Supp. 3d 440, 456 (D.N.J. 2016)(“The Third Circuit
‘requires the ALJ to set forth the reasons for his
decision.’”)(quoting Burnett v. Comm’r of Soc. Sec. Admin., 220
F.3d 112, 123 (3d Cir. 2000))(Bumb, D.J.).
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The Court cannot
determine on the present record why the ALJ did not discuss the
conclusions of Doctors Winfield and Sabia that fatigue is a side
effect of Plaintiff’s pain medications.
It may well be the case
that, upon remand, the ALJ will arrive at the same ultimate
decision that Plaintiff is not disabled.
At this juncture,
however, the ALJ must provide additional explanation for the
decision.
As such, the Court vacates the decision of the ALJ and
remands for proceedings consistent with the above analysis.
ACCORDINGLY, it is on this 27th day of November, 2018,
ORDERED that the decision of the Administrative Law Judge is
VACATED and the case is REMANDED for further proceedings
consistent with this Memorandum Opinion; and it is further
ORDERED that the Clerk of Court shall close this case.
___s/ Renée Marie Bumb___
RENÉE MARIE BUMB, U.S.D.J.
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