PEARSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
18
OPINION. Signed by Judge Kevin McNulty on 12/19/2018. (sms)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 17-6211 (KM)
JENNIFER PEARSON,
Plaintiff,
OPINION
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Jennifer Pearson was found disabled as of February 1, 2004, and she
thereafter received Title II disability insurance benefits (“DIB”). See 42 U.S.C.
§
423. Some seven years later, however, the Administration ruled that she was
no longer disabled as of March 1, 2011, and remained non-disabled through
her date last insured, September 30, 2011. She brings this action pursuant to
42 U.S.C.
§
405(g) to review that decision.
For the reasons set forth below, the final decision of the Commissioner is
reversed and remanded in order to ensure that the diabetes listing under which
the claimant was found disabled, although subsequently repealed, was
nevertheless considered in the continuation-of-benefits analysis.
I.
ORIGINAL FINDING OF DISABILITY AND SUBSEQUENT HISTORY
On May 23, 2005, Ms. Pearson was found disabled as of February 1,
2004. Her condition, diabetes mellitus, was found to satisfy the criteria of a
listed impairment, Listing 9.083. (R 83)’ She had been hospitalized several
1
“R
—“
refers to pages in the administrative record, filed in this case as DE 6.
1
times in late 2004 and early 2005 for diabetic ketoacidosis, staph endocarditis,
and acute cellulitis. (R 108, 249, 261—447)
Thereafter, her treatment regimen included monthly doctor visits and
administration of insulin. (R 456—554) As of July 2010, she had not
experienced diabetic ketoacidosis “in recent years.” (R 458) Her diabetes was
not adequately controlled, although her failure to count carbohydrates or use
an insulin pump may have been partly to blame. (R 458)
Ms. Pearson completed a Continuing Disability Review Report in
November 2010 and a Function Report in January 2011. (R 175—94) These
disclosed that she had difficulty with strenuous activity and heavy lifting. She
reported that she was able to care for her daily needs, perform light housework,
shop, attend church, and spend time with her boyfriend. (R 185—9 1)
On March 4, 2011, a consultative exam produced normal physical and
neurological findings. At the exam, Ms. Pearson reported working as a
receptionist. (R 249—50) Yvonne Li, M.D., a state agency consultant, reviewed
the record and concluded that Ms. Pearson could perform a range of light work.
(R 253—60)
On March 24, 2011, the SSA issued an initial determination that Ms.
Pearson’s condition had improved, and that as of March 1, 2011, she was no
longer entitled to disability benefits. (R 84, 87—87) She requested
reconsideration. In December 2011, a state agency consultant, Howard
Goldbas, M.D., reviewed the updated medical record and concluded that Ms.
Pearson could perform a range of light work despite her diabetes. (R 555—62)
The SSA denied reconsideration. (R 85, 112—14)
That denial was upheld by an Administrative Law Judge (“AW”) and the
Appeals Council in decisions, summarized below, that are the subject of this
appeal.
2
II.
DECISIONS OF THE AU
AND APPEALS COUNCIL
A. The Eight-Step Sequential Analysis
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
§
423(c). A claimant must show that she is
unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted (or can be expected to last) for a continuous period of
not less than twelve months. 42 U.S.C.
§
423(d)(1)(A). In a decision dated May
23, 2005, Ms. Pearson was found to satisfy that standard. See supra. The issue
now before the court is whether the Administration later correctly found that
her medical condition had improved, and her disability had ended.
Because the framework for determining whether a claimant already
receiving benefits continues to be disabled is somewhat unfamiliar, I review it
at the outset. It incorporates much of the familiar five-step sequential analysis
for an initial disability application, but adds some intermediate steps
specifically directed to the issue of whether there has been a medical
improvement, making eight steps in all. See 20 C.F.R.
§
404.1594(fl. Those
steps are as follows:
(1) Are you engaging in substantial gainful activity? If you are (and
any applicable trial work period has been completed), we will find
disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of
impairments which meets or equals the severity of an impairment listed
in appendix 1 of this subpart? If you do, your disability will be found to
continue.
(3) If you do not, has there been medical improvement as defined in
paragraph (b)(1) of this section? If there has been medical improvement
as shown by a decrease in medical severity, see step (4). If there has been
no decrease in medical severity, there has been no medical improvement.
(See step (5).)
(4) If there has been medical improvement, we must determine
whether it is related to your ability to do work in accordance with
paragraphs (b) (1) through (4) of this section; i.e., whether or not there
3
has been an increase in the residual functional capacity based on the
impairment(s) that was present at the time of the most recent favorable
medical determination. If medical improvement is not related to your
ability to do work, see step (5). If medical improvement is related to your
ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical
improvement or if we found at step (4) that the medical improvement is
not related to your ability to work, we consider whether any of the
exceptions in paragraphs (d) and (e) of this section apply. If none of them
apply, your disability will be found to continue. If one of the first group of
exceptions to medical improvement applies, see step (6). If an exception
from the second group of exceptions to medical improvement applies,
your disability will be found to have ended. The second group of
exceptions to medical improvement may be considered at any point in
this process.
(6) If medical improvement is shown to be related to your ability to
do work or if one of the first group of exceptions to medical improvement
applies, we will determine whether all your current impairments in
combination are severe (see §404.1521). This determination will consider
all your current impairments and the impact of the combination of those
impairments on your ability to function. If the residual functional
capacity assessment in step (4) above shows significant limitation of your
ability to do basic work activities, see step (7). When the evidence shows
that all your current impairments in combination do not significantly
limit your physical or mental abilities to do basic work activities, these
impairments will not be considered severe in nature. If so, you will no
longer be considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current
ability to do substantial gainful activity in accordance with § 404.1560.
That is, we will assess your residual functional capacity based on all
your current impairments and consider whether you can still do work
you have done in the past. If you can do such work, disability will be
found to have ended.
(8) If you are not able to do work you have done in the past, we will
consider whether you can do other work given the residual functional
capacity assessment made under paragraph (fl(7) of this section and your
age, education, and past work experience (see paragraph (fl(9) of this
section for an exception to this rule). If you can, we will find that your
4
disability has ended. If you cannot, we will find that your disability
continues.
20 CFR
§
404.1594rn(1)—(8).
B. The Commissioner’s Decision Denying Disability
On February 5, 2015, the claimant, Ms. Pearson, who was represented
by counsel, had a hearing before AW Theresa Merrill. (The transcript is at I?
39—8 1.) At the hearing, the AU took testimony from Ms. Pearson as well as Dr.
Pat Green, a vocational expert (“yE”).
On April 24, 2015, AU Merrill filed her decision finding that the
claimant, Ms. Pearson, was no longer disabled. (R 20—30). Her findings,
corresponding to the eight-step process outlined above, were as follows:
The comparison point decision (“CPD”) from which any medical
improvement would be measured was the SSA’s decision awarding disability
benefits on May 23, 2005. (R 21
¶
1) At that time, the claimant was found to
have diabetes mellitus, an impairment that met or equaled the severity of a
listed impairment, then-current section 9.08 (now repealed). (R 22
¶
2)
From the date of that decision through March 1, 2011, the claimant
performed no substantial gainful activity, as defined. (1? 22
¶
3)
As of March 1, 2011, the claimant had the following medically
determinable impairments, which met the threshold of severity: diabetes
mellitus with neuropathy; history of retinopathy; lumbar radiculopathy;
lumbar disc space narrowing; irritable bowel syndrome; anxiety disorder; and
history of polysubstance abuse disorder. (R 22
¶
4) The claimant’s complaints
of chest pain and a kidney condition were not found to be severe; the AU
noted that echocardiogram and ultrasound showed no significant findings;
kidney protein leakage was controlled with medication and yearly monitoring.
(Id.)
Since March 1, 2011, the claimant’s impairments, alone or in
combination, did not meet or equal the severity of a listed impairment. The
AU’s opinion states that she consulted listings 1.00 (musculoskeletal system),
2.00 (special senses and speech), 9.00 (endocrine disorders), and 12.00 (mental
5
disorders), as well as publication 551? 14-2 (Evaluating Diabetes Mellitus).
Here, the ALT noted a general lack of any medical evidence or opinion equating
the claimant’s impairments to any listing. Virtually all of the discussion at this
step was devoted to the mental-disorder criteria of listing 12.00. (R 22—24
¶
5)
As of March 1, 2011, there had been a decrease in the medical severity of
the claimant’s impairments. The ALT noted mild neuropathy, but with no end
organ damage or ketoacidosis. There were complaints of fluctuating blood
sugar and blackouts of up to two hours, but only two emergency room visits (in
March 2013 and April 2014), both leading to discharge the same day. (1? 24
¶
6) The current impairments, however, continue to meet the minimal threshold
of severity. (R 24
¶
8)
The AU assessed Ms. Pearson’s current impairments and found that
they did not deprive her of the ability to work. (1? 24
¶
7) She noted that the
listing under which Ms. Pearson had been found disabled, Listing 9.08, had
subsequently been repealed.
The ALT found that Ms. Pearson possessed the following residual
functional capacity (RFC):
Based on the impairments present as of March 1, 2011, the
claimant had the residual functional capacity to perform less than
the full range of light work. She can lift/carry up to 20 pounds
occasionally and up to 10 pounds frequently. During an eight-hour
workday, she can sit for up to six hours and stand/walk for up to
six hours. She can never climb ladders/ropes/scaffolds but can
frequently climb ramps/stair, balance, kneel, crouch, and crawl.
She can occasionally stoop. She is able to perform work that does
not involve an assembly line pace. She should avoid concentrated
exposure to hazards such as moving machinery and unprotected
heights. She is able to occasionally operate foot controls with the
right lower extremity. She is able to occasionally operate a motor
vehicle. She would be absent one time per month due to ailments.
Due to lapses in concentration and focus, she would be limited to
understanding, remembering, and carrying out simple
instructions. She would be off-task 5% of the day due to ailments.
(1? 24—25
¶
9)
6
It was at this step that the ALT performed her most sustained analysis of
the medical evidence. (R 25—28). She properly considered (a) whether there was
a medically determinable impairment that could be expected to produce the
symptoms, and (b) the extent to which such symptoms, evaluated in light of
the medical and other evidence, would limit work activities. The ALT conducted
a thorough review of the testimonial and medical evidence (discussed further
below), and stated her reasons for giving greater or lesser weight to various
portions. She accepted that the claimant’s impairments placed limitations on
her activities, which are reflected in the RFC. She concluded, however, that the
current severity was not as great as claimed, and was not disabling.
The ALT acknowledged that the claimant could not perform past relevant
work as a receptionist or teacher’s aide. (R 28
¶
10) In assessing her ability to
work, the ALT took into account that the claimant was a younger individual
(born 10/16/1981), had a high school education, and could communicate in
English. (1? 28
¶1J
11,12)
Ultimately, the ALT concluded that as of March 1, 2011, Ms. Pearson,
given her age, education, work experience, and RFC, could perform jobs that
exist in significant numbers in the national economy. This amounted to a
capacity for light unskilled work, with significant limitations. Based on the VE
testimony, the ALT found that the claimant could perform the following
representative occupations: assembler of small products (DOT 739.687-030;
230,000 positions), ticket seller (DOT 211.467-030; 600,000 positions), or
hand packager (DOT 559.687-074; 365,000 positions). (1? 29
¶
14)
Overall, then, the ALT concluded that Ms. Pearson’s disability ended as
of March 1, 2011. (R 29
¶
15)
Ms. Pearson obtained review by the Appeals Council, which filed a
written opinion on April 27, 2017. (R 6—10) The Appeals Council agreed with
the ALT’s conclusion that the disability ended on March 1, 2011. It ruled,
however, that the ALT should have continued the analysis through Ms.
7
Pearson’s date last insured, September 30, 2011.2 It therefore accepted
additional medical evidence from the claimant. (See 1? 162.) The Appeals
Council reviewed that additional evidence, which included blood tests, an
echocardiogram report, treatment notes from Dr. Ibrahim, a lumbar MRI, a
neurological exam by Dr. Knep, prescriptions for diabetes medication, an eye
exam, a gastrointestinal evaluation in connection with complaints of
constipation, and two emergency room visits for back pain after lifting a fivegallon paint bucket. (R 11, 35—38, 740—85)
The Appeals Council found no reason to depart from the AW’s findings,
which it adopted and extended. It found that Ms. Pearson was not disabled as
of March 1, 2011, and continuing through the date last insured, September 30,
2011. That constituted the final decision of the Commissioner. (R 3—11)
C. Standard of Review
Final decisions of the Commissioner are reviewable by a district court.
See 42 U.S.C.
§ 405(g).
As to legal issues, this Court’s review is plenary. See Schaudeek v.
Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to the factual
findings of the Administrative Law Judges, however, this Court is directed “only
to determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Substantial evidence is “less than a preponderance of the evidence but
more than a mere scintilla.” Jones
ti.
Bamhart, 364 F.3d 501, 503 (3d Cir.
2004) (citation omitted). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.; accord Richardson v.
Perales, 402 U.S. 389, 401 (1971).
[I]n evaluating whether substantial evidence supports the AW’s
findings.
leniency should be shown in establishing the
.
.
The Appeals Council decision states that the claimant “was born on October 16,
1981 and was 20 years old as of September 30, 2011....” Because the Appeals Council
correctly stated Ms. Pearson’s date of birth, I take this to be a mere typographical error
for “29 years old.” Either way, as found by the AW, she was assessed as a younger
individual, aged 18—49. See 1? 28 (citing 20 C.F.R. § 404.1563)).
2
8
claimant’s disability, and
the Secretary’s responsibility to rebut
it should be strictly construed. Due regard for the beneficent
purposes of the legislation requires that a more tolerant standard
be used in this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
prevails.
.
.
.
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, this Court must abide by them. See Jones, 364 F.3d at 503
(citing 42 U.S.C.
III.
§
405(g)).
DISCUSSION
A. Necessity of Considering Repealed Diabetes Listing 9.08 in the
Continuation-of-Benefits Analysis
Equivalence to a listed impairment was the basis for the original 2005
finding of disability. The SSA found that Ms. Pearson’s impairment, diabetes
mellitus, then equaled or surpassed the criteria of Listing 9.08. Listing 9.08
has since been repealed, however.3 It was replaced and superseded by Listing
9.00, which, through cross-references to other listings, directs that diabetes be
assessed according to its effects on other body systems.
Listing 9.08 was abolished in 2011, based on advances in medical
science that had occurred since the last revision in 1985:
3
We are revising the listings for endocrine disorders because medical
science has made significant advances in detecting endocrine disorders
at earlier stages and newer treatments have resulted in better
management of these conditions since we last published final rules
making comprehensive revisions to the endocrine listing in 1985.
Consequently, most endocrine disorders do not reach listing-level
severity because they do not become sufficiently severe or do not remain
at a sufficient level of severity long enough to meet our 12-month
duration requirement.
[W]e should no longer have listing in section
9.00 and 109.00 based on endocrine disorders alone.
.
.
.
Revised Medical Criteria for Evaluating Endocrine Disorders, 76 Fed. Reg. 19692 (Apr.
8,2011). Listing 9.08 and other subsections following Listing 9.00 relating to
endocrine disorders were repealed. Id.
9
A question therefore arises in the context of a continuation-of-benefits
analysis: Should the court, post-repeal, consider Listing 9.08 in assessing
whether a medical improvement relevant to the claimant’s ability to work has
occurred? In its comments accompanying the 2011 repeal, the SSA answered
that question in the affirmative:
When a person qualifies for disability benefits under a listing, we
continue to use that same listing when we later determine if
he or she is still disabled. See gg 404. 1594(c) (3) (i),
416.994(b)(2)(iv), and 416.994a(b)(2). This rule applies even if we
have removed or changed the listing since we last found that
the beneficiary was disabled. For this reason, we will not find
that a beneficiary’s disability has ended solely because we have
removed the DM [diabetes mellitus] listings or any other endocrine
disorder listing.
Revised Medical Criteria for Evaluating Endocrine Disorders, 76 Fed. Reg. 19693
(Comment) (Apr. 8, 2011) (emphasis added).
Although associated regulations do not as explicitly address the subject
of the repealed Listing 9.08, the sense is similar:
If medical improvement has occurred and the severity of the
prior impairment(s) no longer meets or equals the same listing
section used to make our most recent favorable decision, we
wilifind that the medical improvement was related to your
ability to work. Appendix 1 of this subpart describes impairments
which, if severe enough, affect a person’s ability to work. If the
appendix level of severity is met or equaled, the individual is
deemed, in the absence of evidence to the contrary, to be unable to
engage in substantial gainful activity. If there has been medical
improvement to the degree that the requirement of the listing
section is no longer met or equaled, then the medical
improvement is related to your ability to work. We must, of
course, also establish that you can currently engage in gainful
activity before finding that your disability has ended.
20 C.F.R. § 404.1594(c)(3)(i); see also 20 C.F.R. § 416.994(b)(2)(iv).
At step two, the ALT found that Ms. Pearson’s current impairments were
not presumptively disabling—i.e., that they did not meet or equal the criteria of
any impairment found in the Listing of Impairments. 20 C.F.R. Part 404,
10
Subpart P, Appendix 1, Part A. In doing so, the AM evaluated Ms. Pearson’s
impairments in relation to the current listings. That current catchall endocrine
listing, Listing 9.00, cross-references other listings and directs the reader to
consider diabetes insofar as it affects other body systems. (See R22
¶
5 (citing
Listings 1.00, 2.00, 9.00, 12.00, and 551? 14-2.). For reasons not entirely
clear, nearly all of the AM’s discussion at this step was devoted to Listing
12.00, involving mental impairments (one of those cross-referenced by current
Listing 9.00).
Steps three and four are directed to the core issue of whether there has
been a medical improvement that is relevant to the claimant’s ability to work:
Thus diabetes is not considered per Se. Instead, it is assessed in relation to its
effects on other body systems, under the listings for those body systems. The AM, at
step two, was clearly tracking the standard of Listing 9.00, particularly as further
explicated in SSR 14-2:
4
Evaluating the Effects of DM under Other Body Systems
We next determine at step 3 whether the impairment(s) meets or medically
equals a listing, which also considers the medical severity of your impairment(s).
DM is not a listed impairment for adults. However, the effects of DM, either
alone or in combination with another impairment(s), may meet or medically
equal the criteria of a listing in an affected body system(s). [fn. omitted] Below
are some examples of the effects of DM and the body systems under which we
evaluate them:
•
Amputation of an extremity, under the musculoskeletal system listings
(1.00).
•
Diabetic retinopathy, under the special senses and speech listings (2.00).
•
Hypertension, cardiac anhythmias, and heart failure, under the
cardiovascular system listings (4.00).
•
Gastroparesis and ischemic bowel disease (intestinal necrosis), under the
digestive system listings (5.00).
•
Diabetic nephropathy, under the genitourinary impairments listings (6.00).
•
Slow-healing bacterial and fungal infections, under the skin disorders listings
(8.00).
•
Diabetic neuropathy, under the neurological listings (11.00).
•
Cognitive impairments, depression, anxiety, and eating disorders, under the
mental disorders listings (12.00).
11
(3)
[H] as there been medical improvement as defined in
paragraph (b)(1) of this section2
.
.
(4) If there has been medical improvement, we must
determine whether it is related to your ability to do work in
accordance with paragraphs (b) (1) through (4) of this section; i.e.,
whether or not there has been an increase in the residual
functional capacity based on the impairment(s) that was present at
the time of the most recent favorable medical determination. If
medical improvement is not related to your ability to do work, see
step (5). If medical improvement is related to your ability to do
work, see step (6).
20 C.F.R. § 1594(f) (quoted more fully at pp. 3—4, supra).
Under the regulations quoted above, the AW is required to use the “same
listing’ applied in the original disability determination—here, Listing 9.08—to
determine whether the claimant is still disabled, and in particular whether the
medical improvement relates to the claimant’s ability to do work.
The AU’s conclusion at this step, however, consists of a boilerplate
conclusion of law followed by one sentence of analysis:
7. The medical improvement is related to the ability to work
because, as of March 1, 2011, the claimant’s CPD impairment(s) no
longer met or medically equaled the same listing(s) that was met at
the time of the CPD (20 CFR 404.1594(c)(3)(i))
Significantly, the listing under which the claimant was evaluated is
now obsolete.
(R 24 ¶7)
Under the authorities cited above, it is not sufficient merely to note, as
the AU did here, that the listing at the time of the initial finding of disability
has been repealed. Despite repeal, it remains relevant to the analysis. That
must particularly be so when, as here, the prior finding of disability was based
on listing equivalence. Running through the regulations is a principle that the
prior finding, including listing equivalence, must serve as a baseline for the
determination of medical improvement.
12
B. Appropriateness of Remand
The next question is that of remedy. This Court may affirm, modify, or
reverse the Commissioner’s decision, or it may remand the matter to the
Commissioner for a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir.
2007). Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedworny, 745 F.2d at 22 1-22. Remand is also proper
if the AW’S decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’rof Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AJJ’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
Neither outright reversal nor affirmance is appropriate here. The AW, at
a later stage of the stage of the analysis, reviewed the current medical evidence
in a manner that supports a bottom-line finding of no disability.
It might be possible, as the Administration implies, for the Court to
extract the
necessanr
facts
from
the remainder of the opinion and perform the
necessary analysis on its own. In this somewhat unusual but surely recurring
scenario, however, I think it is important to define the proper procedure and
enforce adherence to it. It is for the AW in the first instance to make the
necessary findings, strictly following the step-by-step approach prescribed by
the regulations.
I will therefore remand the matter. In doing so, I neither state nor imply
any view as to the merits of Ms. Pearson’s claim, or whether the result should
differ on remand.
13
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is
REVERSED AND REMANDED for proceedings not inconsistent with this
Opinion. An Order will be entered in accordance with this Opinion.
Dated: December 19, 2018
)
Hon. Kevin McNulty
United States District Judge
14
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