McCammon v. Berryhill

Filing 25

ORDER ADOPTING report 19 of Magistrate Judge Cohn to extent that court concludes that ALJ erred by failing to explain her implicit rejection of a pacing-related production limitation, with the court declining to adopt balance of report's reco mmendations which are mooted by ct's remand on ground id'd in para 1, directing that Commissioner's decision is VACATED & matter REMANDED to Commissioner w/ instructions to conduct new admin hearing, develop record fully & evaluate evidence appropriately in acc w/ this order, & directing Clrk of Ct to CLOSE case. (See order for complete details.)Signed by Chief Judge Christopher C. Conner on 12/9/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS B. MCCAMMON,
Plaintiff
v.
ANDREW SAUL, Commissioner of
the Social Security Administration,
Defendant

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CIVIL ACTION NO. 1:17-CV-1694
(Chief Judge Conner)

ORDER
AND NOW, this 9th day of December, 2019, upon consideration of the
report (Doc. 19) of Magistrate Judge Gerald B. Cohn, recommending that the court
vacate the decision of the administrative law judge (“ALJ”) denying the application
of Thomas B. McCammon (“McCammon”) for disability insurance benefits and
remand this matter to the Commissioner of Social Security (“Commissioner”) for
further proceedings, and noting that the Commissioner has filed objections (Doc.
22) to the report, see FED. R. CIV. P. 72(b), and that McCammon filed a response
(Doc. 23) thereto, and following de novo review of the contested portions of the
report, see E.E.O.C. v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting
28 U.S.C. § 636(b)(1)), and affording “reasoned consideration” to the uncontested
portions, see id. (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)), the
court being in agreement with Judge Cohn that the ALJ’s decision is not supported
by substantial evidence, see 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001), concluding that remand is appropriate for the ALJ to properly
evaluate the existence and extent of any functional limitations stemming from

McCammon’s pacing behavior secondary to his anxiety, and accordingly finding the
Commissioner’s objection to be without merit,1 it is hereby ORDERED that:

1

We agree with Judge Cohn’s recommendation that this matter be
remanded, but we do so on alternative grounds. McCammon alleges that the
ALJ erred by disregarding the “uncontradicted evidence” that McCammon
“regularly paces for an hour to an hour and a half due to daily anxiety.” (Doc. 12
at 26). Judge Cohn agreed with McCammon on this issue, opining that the ALJ
erred by failing to explain her implicit rejection of a production limitation. (See
Doc. 19 at 14-16). Judge Cohn’s analysis rests on McCammon’s testimony about
his symptoms and about his unsuccessful work attempt as a material handler at KMart, which allegedly terminated due to his inability to meet production standards.
(See id.) We are inclined to agree with the Commissioner that, without medical
evidence supporting this symptom, the ALJ’s implicit rejection of a pacing-related
production limitation would survive substantial-evidence review. (Doc. 14 at 23).
The Commissioner’s objection to this aspect of Judge Cohn’s report is grounded
entirely in the perceived lack of objective medical evidence supporting a pacingrelated production limitation. (See Doc. 22 at 17-18). The problem is that the
medical record does include objective medical documentation of this symptom.
Treatment notes from Dr. Satyajit Mukherjee (“Dr. Mukherjee”), McCammon’s
treating psychiatrist, document pacing behavior as far back as 2012. (See Tr. at
303). Most pertinently, in a treating-source opinion dated October 27, 2015, Dr.
Mukherjee expressly identifies “psychomotor agitation”—which includes pacing—
as a symptom of McCammon’s anxiety disorder. (Id. at 609). The ALJ did not
explore McCammon’s medically-documented pacing behavior or explain her
implicit rejection of a pacing-related production limitation, notwithstanding the
medical and non-medical evidence suggesting that such a limitation exists. (See Tr.
at 346-52). The Third Circuit has long recognized that the need for explanation by
the ALJ is “particularly acute . . . when s/he has rejected relevant evidence or when
there is conflicting probative evidence in the record.” Cotter v. Harris, 642 F.2d
700, 706 (3d Cir. 1981). Because an “ALJ cannot reject evidence for no reason or
for the wrong reason, . . . an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court can determine
whether the reasons for rejection were improper.” Id. at 706-07 (citation omitted).
The ALJ here did not engage with or explain her implicit rejection of the medical
and non-medical evidence supporting a pacing-related production limitation. We
thus cannot meaningfully review the ALJ’s decision to determine if it is supported
by substantial evidence. This error is not harmless, because proper assessment of
McCammon’s functional limitations impacts the remaining steps of the disability
analysis. Because remand is warranted on this basis alone, we express no opinion
on the balance of Judge Cohn’s report or the Commissioner’s objections thereto.

1.

The report (Doc. 22) of Magistrate Judge Cohn is ADOPTED to
the extent that the court concludes that the ALJ erred by failing to
explain her implicit rejection of a pacing-related production limitation.

2.

The court declines to adopt the balance of the report’s
recommendations, which are mooted by the court’s remand on the
ground identified in paragraph 1.

3.

The Commissioner’s decision is VACATED and this matter is
REMANDED to the Commissioner with instructions to conduct a
new administrative hearing, develop the record fully, and evaluate
the evidence appropriately in accordance with this order.

4.

The Clerk of Court is directed to CLOSE this case.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania