BYNUM v. COLVIN

Filing 34

MEMORANDUM OPINION SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 8/3/16. 8/4/16 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAWANDA T. BYNUM

: CIVIL ACTION
:
: NO. 13-cv-6682
:
:

v.
CAROLYN W. COLVIN

MEMORANDUM OPINION
SCHMEHL, J. /s/ JLS

AUGUST 3, 2016

Currently pending before the Court are plaintiff’s Objections to the Report and
Recommendation of United States Magistrate Judge Richard A. Lloret. The Court held
oral argument on the Objections on August 1, 2016. For the reasons that follow, the
Court sustains two of the Objections and remands this action to the Commissioner of
Social Security for further proceedings consistent with this Opinion.
I.

PROCEDURAL HISTORY
On August 9, 2010, Plaintiff filed a protective application for Supplemental

Security Income (“SSI”) pursuant to Title XVI of the Social Security Act, 42 U.S.C. §
1381, et seq. (Tr. 15.) 1 Her claim alleged disability beginning June 1, 2005. (Id.) The
state agency denied Plaintiff’s application on October 5, 2010. (Id.) Plaintiff timely
requested a hearing before an administrative law judge (“ALJ”). (Id.) The ALJ
conducted a hearing on July 26, 2012, at which time both Plaintiff and a vocational
1

Citations to the administrative record will be referenced as “Tr. [page number].”
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expert testified. (Id. at 26–57.) On April 26, 2013, the ALJ issued his Decision deeming
Plaintiff “not disabled.” (Id. at 15–20.)
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform medium work as defined in 20 C.F.R. § 416.967(c), with the exception that she
could not perform duties that required fine hand manipulation. (Tr. 18.) Medium work
involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds. 20 C.F.R. § 416.967 (c). Based on this RFC and
Plaintiff’s age, education, and work experience, the ALJ found that Plaintiff is not
disabled and that there are jobs that she can perform such as a sorter or packer. (Id.
19-20.) Plaintiff filed an appeal from this decision and, on September 25, 2013, the
Appeals Council denied Plaintiff’s request for review, making the ALJ’s ruling the final
decision of the agency. (Id. at 1–6.)
Plaintiff initiated the present civil action in this Court on November 22, 2013.
(ECF 3.) Her Request for Review set forth two alleged errors: (1) the ALJ failed to
consider all of the impairments and subjective complaints that are supported by the
record; and (2) the ALJ failed to apply a fair assessment of plaintiff’s functional
limitations in the hypothetical posed to the vocational expert. (ECF 14.) The Magistrate
Judge issued a Report and Recommendation (“R&R”) recommending that Plaintiff’s
Request for Review be denied. (ECF 22.)
Plaintiff subsequently filed Objections to the R&R. (ECF 26.) Plaintiff objects to:
“(1) the Magistrate Judge’s recommendation of “harmless error”---a doctrine not
explicitly sanctioned by the Third Circuit in Social Security disability cases—in the ALJ’s
finding that Graves’ disease was symptomatic only when [Plaintiff] was pregnant

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because this critical and dispositve finding is contradicted by the evidence; (2) the
Magistrate Judge’s recommendation that substantial evidence supports the finding that
[Plaintiff’s] back and knee impairments are not severe, i.e. do not meet the minimal Step
2 threshold; (3) the Magistrate Judge’s recommendation that the ALJ’s findings are
supportable because the ALJ erroneously discounted symptoms of Graves’ disease, the
Magistrate re-weighs the evidence to explain how the ALJ might have supported his
findings, and the ALJ failed to explain the reasons to discredit the only valid functional
assessment in the record, which contradicts the finding that [Plaintiff] can perform
medium work; and (4) the Magistrate Judge’s recommendation that substantial
evidence supports the ALJ’s finding that [Plaintiff] can do ‘medium work’—which
requires lifting up to 50 pounds—when the ALJ failed to consider the only valid
functional assessment in the record and this assessment confirms that [Plaintiff] would
be more severely limited than found by the ALJ because she is unable to lift more than
25 pounds and cannot perform medium work.” (Id.) Defendant has responded to these
Objections. (ECF 31.)

II.

STANDARD OF REVIEW 2
A.

Standard for Judicial Review of an ALJ’s Decision

It is well-established that judicial review of the Commissioner’s decision is limited
to determining whether “substantial evidence” supports the decision. Burnett v. Comm’r
of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000). “Substantial evidence ‘does not
2

The five-step sequential analysis for assessing a disability claim was
adequately summarized by the Magistrate Judge. In lieu of repeating that
discussion, the Court incorporates by reference that portion of the R&R into this
Memorandum.
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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.’” Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552,
564–65 (1988)). When making this determination, a reviewing court may not undertake
a de novo review of the Commissioner’s decision and may not re-weigh the evidence of
record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In other
words, even if the reviewing court, acting de novo, would have decided the case
differently, the Commissioner’s decision must be affirmed if it is supported by
substantial evidence. Id. at 1190–91; see also Gilmore v. Barnhart, 356 F. Supp. 2d
509, 511 (E.D. Pa. 2005) (holding that the court’s scope of review is “‘limited to
determining whether the Commissioner applied the correct legal standards and whether
the record, as a whole, contains substantial evidence to support the Commissioner’s
findings of fact’”) (quoting Schwartz v. Halter, 134 F. Supp. 2d 640, 647 (E.D. Pa.
2001)). 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).
B.

Standard of Review of Objections to a Report and Recommendation

Where a party makes a timely and specific objection to a portion of a report and
recommendation by a United States Magistrate Judge, the district court is obliged to
engage in de novo review of only those issues raised on objection. 28 U.S.C. §
636(b)(1); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In so

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doing, a court may “accept, reject, or modify, in whole or in part, the findings and
recommendations” contained in the report. 28 U.S.C. § 636(b)(1). The court may also,
in the exercise of sound judicial discretion, rely on the Magistrate Judge’s proposed
findings and recommendations. See United v. Raddatz, 447 U.S. 667, 676 (1980).
III. DISCUSSION
With respect to Plaintiff’s first Objection, the ALJ found that “[t]he Penn
Endocrinology records and the primary care treatment records document Grave’s
disease, but show that the disease was only symptomatic while the claimant was
temporarily off medication during pregnancy. (Exhibit 4F, 6F-10F).” (Tr. 19.)The
Magistrate Judge noted that contrary to the finding of the ALJ, the medical evidence
revealed that plaintiff’s medication for Graves’ disease was actually increased during
her pregnancy. (Tr. 32, 466.) Although the Magistrate Judge concluded that the ALJ
erred, the Magistrate Judge considered the error to be harmless because “[d]espite the
ALJ’s misstatement, the overall findings of the ALJ are supported by substantial
evidence, and there would be no difference in the outcome if I remanded based on this
error.” (ECF 22 at 4 n.4.)
“An error is ‘harmless’ when, despite the technical correctness of an appellant’s
legal contention, there is also ‘no set of facts’ upon which the appellant could recover.”
Brown v. Astrue, 649 F. 3d 193, 195 (3d Cir. 2011) (quoting Renchenski v. Williams,
622 F. 3d 315, 341 (3d Cir. 2010)).
The Court cannot conclude that there is “no set of facts” upon which the ALJ
could have reached a different conclusion. The ALJ did not properly state and therefore
evaluate the evidence that clearly showed that plaintiff actually increased her

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medication for Graves’ disease during her pregnancy. Indeed, the record reflects that
plaintiff complained of fatigue and other symptoms of Graves’ disease when she was
not pregnant. (Tr. 471, 478, 487, 490.) There is no discussion in the ALJ’s decision of
plaintiff’s symptoms when she was not pregnant. Had the ALJ been aware that plaintiff
suffered from symptoms of Graves’ disease even when she was not pregnant and that
she had actually increased her medication for Graves’ disease during her pregnancy, he
may have given more weight to plaintiff’s subjective complaints of fatigue, dizziness and
lightheadedness that were associated with Graves’ disease. This is especially important
since the vocational expert testified that there would be no jobs of any kind maintainable
for someone with the plaintiff’s subjective complaints of “limited sitting, standing, and
walking and …the problems with the hand and fatigue and the need to take naps during
the day.” (Tr. 55.) In short, the ALJ’s review of the entire record may have been
clouded by his error. Since the Court cannot read the mind of the ALJ at the time he
rendered his decision, the most prudent course is to remand so that the ALJ can
properly evaluate all the evidence.
If the Court were to construe the evidence in the first instance in order to
determine whether the error was harmless, the Court would be usurping the role of the
ALJ which is to properly state and evaluate the evidence. The Court’s role is to test
whether the ALJ’s decision is supported by substantial evidence. Since the ALJ
mischaracterized the evidence resulting in the ALJ not considering all the evidence,
plaintiff’s first objection to the R & R is sustained and this matter will be remanded to the
Commissioner so that the ALJ can properly weigh the evidence concerning the
Plaintiff’s complaints of fatigue and other symptoms of Graves’ disease throughout the

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relevant period and not just during the nine months she was pregnant from December
2010 through August, 2011. See Gonzalez v. Colvin , C.A. No.13-6714 (Jan. 23, 2015,
E.D. Pa.) (rejecting recommendation that ALJ’s error was harmless because to do so
would require the Court to re-weigh evidence not discussed by the ALJ and would
ignore evidence showing fatigue and other symptoms).
Plaintiff also objects that the Magistrate Judge did not make any
recommendation about the lack of a proper credibility determination by the ALJ before
he made his residual functional capacity finding.
The ALJ “must specifically identify and explain what evidence he found not
credible and why he found it not credible.” Zirnsal v. Colvin, 777 F. 3d 607, 612 (3d Cir.
2014); See also Fargnoli v. Halter, 247 F. 3d 34, 43 (3d Cir. 2001); (“Although the ALJ
may weigh the credibility of the evidence, he must give some indication of the evidence
that he rejects and his reason(s) for discounting that evidence.”)
As part of his analysis that resulted in his finding that the plaintiff has the RFC to
perform medium work, the ALJ stated:
After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity.

(Tr. 18.)
From this statement, it is clear that instead of evaluating plaintiff’s subjective
complaints as part of the evidence used to determine plaintiff’s RFC, the ALJ first found
that plaintiff had the RFC to perform medium work and then rejected plaintiff’s
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subjective testimony because it did not comport with his finding that plaintiff had the
residual functional capacity to perform medium work.
Circuit Judge Posner rejected identical reasoning by an ALJ in Bjornson v.
Astrue, 671 F. 3d 640 (7th Cir. 2012). In Bjornson, the ALJ discounted the plaintiff’s
subjective statements as follows:
After careful consideration, the undersigned [the
administrative law judge] finds that the claimant’s medically
determinable impairments would reasonably be expected to
cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity
assessment.

671 F. 3d at 644.
Judge Posner criticized the ALJ’s reasoning as follows:
One problem with the boiler plate is that the assessment of
the claimant’s residual functional capacity. . . comes later in
the administrative law judge’s opinion, not above—above is
just the foreshadowed conclusion of that later assessment. A
deeper problem is that the assessment of a claimant’s ability
to work will often (and in the present case) depend heavily
on the credibility of her statements concerning the “intensity,
persistence and limiting effects” of her symptoms, but the
passage implies that ability to work is determined first and is
then used to determine the claimant’s credibility. That gets
things backward

Id. at 645. Several other Circuit Courts have criticized an ALJ’s reliance on this
boilerplate, finding that it does indeed suggest a backwards approach to assessing a
claimant’s credibility. See Mascio v. Comm’r of Soc. Sec., 780 F. 3d 632, 639 (4th Cir.
2015); Cox v. Comm’r of Soc. Sec., No. 14-6243 (6th Cir. June 11, 2015)(unpublished);

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Treichler v. Comm’r of Soc. Sec., 775 F. 3d 1090, 1102-03 (9th Cir. 2014); Kamann v.
Colvin, 721 F. 3d 945, 949-51 (8th Cir. 2013).
This is exactly what the ALJ did in this case. The error might have been harmless
had the ALJ properly discussed the plaintiff’s credibility elsewhere in his Decision,
however this was not the case. As a result, as part of the remand, the ALJ will be
directed to evaluate plaintiff’s subjective complaints as part of his analysis in
determining plaintiff’s residual functional capacity and explain any reasons for
discrediting the plaintiff.
The remainder of plaintiff’s Objections to the R & R are overruled and the matter
is remanded to the Commissioner for further proceedings consistent with this Opinion.

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