Davies v. Social Security Administration
Filing
19
MEMORANDUM (Order to follow as separate docket entry)Signed by Magistrate Judge Gerald B. Cohn on 9/30/15. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRYSTAL MARLENA DAVIES,
CASE NO. 3:13-cv-2978-GBC
(MAGISTRATE JUDGE COHN)
Plaintiff,
v.
MEMORANDUM
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY,
Docs. 1, 9, 10, 12, 13, 14
Defendant.
MEMORANDUM
I.
Introduction
The above-captioned action is one seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying the application of
Plaintiff Crystal Marlena Davies (“Plaintiff”) for supplemental security income
(“SSI”) under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the
“Act”). Several related theories support a remand in this case. First, Plaintiff was a
pro se claimant who exhibited mental illness. Thus, the ALJ had a heightened duty
to develop the record both for and against the award of benefits. The ALJ failed to
discharge this duty here because she did not request relevant medical evidence that
Plaintiff submitted to the Appeals Council after obtaining counsel. Second, these
records constitute new and material evidence. This evidence contains the only
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opinion by a treating physician in the record. Moreover, this evidence is relevant to
Plaintiff’s social functioning, as it shows she was unable to exhibit the social skills
required to successfully obtain treatment for her physical impairments. Thus,
finally, this evidence calls into question the ALJ’s assessment of her mental
function, particularly her social limitations. The ALJ relied on an opinion by a state
agency psychologist that Plaintiff’s social skills were intact. The evidence
submitted to the Appeals Council suggests this conclusion is not accurate. This
evidence also demonstrates that the ALJ’s failure to further explain and address
Plaintiff’s social impairments precludes meaningful review.
The Court notes that Plaintiff primarily focuses her appeal on physical,
rather than mental, limitations. However, this focus may be a symptom of her
mental illness. Providers observed that she lacked insight into her mental
impairments and, although multiple providers diagnosed her with bipolar disorder,
she consistently denied suffering from bipolar disorder. Plaintiff exhibited
paranoid beliefs at the ALJ hearing. Thus, reliance on her representations that she
was not suffering from a mental illness and her refusal to obtain treatment may be
inappropriate in this case. For instance, Plaintiff asserts that she gets along with
authority figures “fine,” so the ALJ did not include limitations in her residual
functional capacity (“RFC”) relating to authority figures. However, Plaintiff was
unable to get along with authority figures in the form of treating providers or state
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agency personnel. Her lack of insight does not provide the ALJ’s decision with
substantial evidence. For the foregoing reasons, the Court will grant Plaintiff’s
appeal, vacate the decision of the Commissioner, and remand for further
proceedings.
II.
Procedural Background
On August 23, 2010, Plaintiff filed an application for SSI under the Social
Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”).
(Tr. 92-98). On
December 23, 2010, the Bureau of Disability Determination denied this application
(Tr. 76-82), and Plaintiff filed a request for a hearing on February 22, 2011. (Tr.
83). On February 14, 2012, an ALJ held a hearing at which Plaintiff—who was not
represented by an attorney—and a vocational expert (“VE”) appeared and testified.
(Tr. 31-75). On May 16, 2012, the ALJ found that Plaintiff was not disabled and
not entitled to benefits. (Tr. 12-30). On July 12, 2012, Plaintiff filed a request for
review with the Appeals Council (Tr. 7-8), which the Appeals denied on October
1, 2013, thereby affirming the decision of the ALJ as the “final decision” of the
Commissioner. (Tr. 1-6).
On December 6, 2013, Plaintiff filed the above-captioned action pursuant to
42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On
March 6, 2014, the Commissioner filed an answer and administrative transcript of
proceedings. (Docs.9, 10). On April 10, 2014, Plaintiff filed a brief in support of
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her appeal (“Pl. Brief”). (Doc. 12). On May 9, 2014, Defendant filed a brief in
response (“Def. Brief”). (Doc. 13). On May 22, 2014, Plaintiff filed a brief in reply
(“Pl. Reply”). On December 8, 2014, the parties consented to transfer of this case
to the undersigned for adjudication. (Doc. 16, 17, 18). The matter is now ripe for
review.
II.
Standard of Review
When reviewing the denial of disability benefits, the Court must determine
whether substantial evidence supports the denial. Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988). Substantial evidence is a deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consol. Edison Co. of New York v.
N.L.R.B., 305 U.S. 197, 229 (1938)). In other words, substantial evidence requires
“more than a mere scintilla” but is “less than a preponderance.” Jesurum v. Sec’y
of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
III.
Sequential Evaluation Process
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To receive disability or supplemental security benefits, 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). The Act requires that a claimant for disability benefits show that
he has a physical or mental impairment of such a severity that:
He is not only unable to do his previous work but cannot, considering
his age, education, and work experience, 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. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a
person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds
that a Plaintiff is disabled or not disabled at any point in the sequence, review does
not proceed. See 20 C.F.R. § 404.1520. The Commissioner 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 from 20 C.F.R. Part 404, Subpart
P, Appendix 1 (“Listing”); (4) whether the claimant’s impairment prevents the
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claimant from doing past relevant work; and (5) whether the claimant’s impairment
prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520,
416.920. Before moving on to step four in this process, the ALJ must also
determine Plaintiff’s residual functional capacity (“RFC”).
20 C.F.R. §§
404.1520(e), 416.920(e).
The disability determination involves shifting burdens of proof. The
claimant bears the burden of proof at steps one through four. If the claimant
satisfies this burden, then the Commissioner must show at step five that jobs exist
in the national economy that a person with the claimant’s abilities, age, education,
and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.
1993). The ultimate burden of proving disability within the meaning of the Act lies
with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
IV. Relevant Facts in the Record
Plaintiff was born on July 12, 1971, and was classified by the Regulations as
a younger individual through the date of the ALJ decision. (Tr. 24). 20 C.F.R. §
404.1563. Plaintiff has at least a high school education and past relevant work as a
sales associate, a waitress, and as a telemarketer. (Tr. 24).
On August 9, 2010, Plaintiff sought treatment at Geisinger Medical Center
for a breast mass. (Tr. 368-70). Her history indicated that she had an abscess
removed from her breast in April of 2010, with a history of breast disease and five
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previous surgeries. (Tr. 368). Mental status examination indicated Plaintiff
“appear[ed] quite angry and cynical.” (Tr. 370).
Plaintiff also reported spine and lower extremity impairments. (Tr. 606).
MRIs documented a Tarlov cyst. (Tr. 606). On October 5, 2010, Dr. Thomas
Hanlon described her history:
Near total body pain. Began after I & D left breast abscess (The breast
still has an open wound that is slowly resolving). She developed left
leg radicular symptoms. Had an MRI of the LS spine that showed a
left L5 Tarlov's cyst. She found the Tarlov's Disease organization and
the National Organization for Rare Diseases (NORD). Patient feels
she has all the hallmarks of the Tarlov's Disease. She currently is
being worked up By Dr Casmpos at Geisinger Neurosurgery for her
left leg radicular symptoms and variable urologic complaints. She has
a bizarre left buttock/rectum feeling of labor. Also c/o tinnitus and
headaches. The discomfort is most prominent in the lower, left lumbar
spine. This radiates to the left posterior thigh. She characterizes it as
intermittent, moderate in intensity, severe, aching, burning, stabbing,
and cramping. This is a chronic problem, with essentially constant
pain. She states that the current episode of pain started 6 months ago.
The event which precipitated this pain was began after breast surgery.
Associated symptoms include radicular bilateral arm pain and
radicular bilateral leg pain. She denies fever, unexplained weight loss,
change in bowel or bladder habits or increased pain with Valsalva
maneuvers. She notes some pain relief with lays down. The pain
worsens with movement/lifting/walking… EMG/NCV has been
attempted without success due 10 patient anxiety.
(Tr. 208). Neurologists subsequently opined that her “left lower extremity
symptoms [were] present in a distribution compatible with the left S1 region
Tarlov cyst,” although “[t]he relationship to symptoms to this finding is not
entirely clear.” (Tr. 606).
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On August 23, 2010, a state agency employee conducted a face-to-face
interview to complete Plaintiff’s application for benefits under the Act. (Tr. 116).
The state agency employee observed that she “could not sit for long periods of
time because she claimed her foot was going numb” and “had a bad memory.” (Tr.
116). Notes also indicate that Plaintiff “was not very cooperative or friendly. She
brought a friend with her because she "hates everyone" and her friend would act as
a buffer. Was very sarcastic in answering questions.” (Tr. 116).
On August 26, 2010, a state agency employee contacted Plaintiff by phone
and noted that she “very sarcastic and somewhat unfriendly, but also somewhat
tearful about her conditions.” (Tr. 526).
On October 14, 2010, a state agency employee made a notation of Plaintiff’s
file that “there are no guarantees of obtaining a detailed true clinical picture of her
mental status given the gravity of her past conditions, so a protective MSE CE is
ordered today. It is noted that the most recent mental status comment on an 8/9/10
consult at Geisinger noted her to be quite angry and cynical, and sarcastic
responses to questions have been noted by the field office and noticed by the
adjudicator. Her ADL also alleges memory problems, and in speaking to the
adjudicator by telephone today, she alleged "I can't remember (expletive)," saying
she needs to write information on her arm to remember.” (Tr. 527).
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In October of 2010, Plaintiff had a psychiatric evaluation at Northeast
Counseling. (Tr. 202). When asked if Plaintiff had any goals, she responded, “ask
f****** retarded questions to someone else.” (Tr. 202). When asked if she was
going to kill herself, she responded, “what a ridiculous question. As per usual.”
(Tr. 199). She felt “these are all ridiculous questions.” (Tr. 199). She indicated that
the “main reason she was there” was Dr. Yurko and evaluators observed she had
poor insight. (Tr. 195). She had a “history of getting into fights with others.” (Tr.
195). She was “irritable” during most of the interview. (Tr. 196).
On November 23, 2010, a state agency employee contacted Plaintiff to see if
she would keep a scheduled consultative examination, and she explained that she
would be unable to if she did not have a ride. (Tr. 527). The state agency employee
noted Plaintiff “seemed very sarcastic and combative about keeping this exam
appointment.” (Tr. 527).
On November 30, 2010, Dr. Anthony Galdieri, Ph.D., reviewed Plaintiff’s
file and authored a medical opinion. (Tr. 513). He opined that Plaintiff had
moderate limitations in accepting instructions and responding appropriately to
criticism from supervisors. (Tr. 513). He opined that her “social skills are
functional from a psychiatric standpoint” and that she could perform the basic
mental demands on competitive work on a sustained basis. (Tr. 514).
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On February 14, 2012, Plaintiff appeared and testified at a hearing before an
ALJ. (Tr. 33). She did not appear to recognize the import of the state agency
medical opinions, testifying that:
CLMT: Well, there's two doctors on the disc that I've never
heard of.
ALJ: Okay.
CLMT: And I wrote their names down because I never heard of them.
And Dr. Mark Bohn, M.D.
ALJ: How do you spell that?
CLMT: B-O-H-N. I have no idea who he is. And Anthony
Galdieri, Ph.D., I've never heard of him either.
ALJ: Ph.D.?
CLMT: And Mark Bohn is an M.D. Mark Bohn.
ALJ: Okay, Mark -- Michael Bohn? No. We have a Michael Bohn
who's -- that wasn't it?
CLMT: No.
ALJ: Okay.
CLMT: His name's Mark Bohn, B-O-H-N.
I have no idea who he is.
ALJ: It could be the doctors from the state agency. Let me see. Yeah.
Anthony Galdieri is from the Social Security Administration
component that made your original decision.
CLMT: Okay.
ALJ: That's where he is from. And Mark Bohn is also from the state
agency. One is a medical doctor and the other one's the psychologist.
CLMT: Okay.
ALJ: Okay? Do you have any objections to us considering your
records?
CLMT: No.
ALJ: Okay. Therefore, Exhibits 1A through 23F are admitted into
evidence.
(Tr. 37-39). Plaintiff testified that “everything hurts most of the time,” which she
attributed to her cyst. (Tr. 42). She testified that waiting for doctors to become
available was “really frustrating.” (Tr. 43). She testified that had gone to Northeast
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Counseling until November of 2011, but stopped due to transportation problems.
(Tr. 44). She criticized her medical care, stating “I need better doctors. This is what
all this experience is teaching me.” (Tr. 54). When asked about mental health
impairments, she testified:
Q Now, let's talk about the mental health treatment.
A Yeah, they keep telling me I'm bipolar. hearing this for years. I am
not bipolar.
Q What's your mental health diagnosis then?
A Bipolar.
Q Anything else?
A Bipolar.
Q Just bipolar, okay.
A The them who are bipolar are erratic and have really like extreme
highs and extreme lows, which I do not have. Moody, that I have. Not
the same.
Q So, part of the bipolar is manic episodes.
A Yeah, I don't have those.
Q You don't have those, okay.
A No. But I'd sign up I think after this. Can I walk around over here?
Q I need you stay by the microphone just so we can hear you and he
can record it. And what medications are you on or the mood swings or
A Nothing.
Q -- whatever you want to call it? Okay. Have you had any psychiatric
hospitalizations since March 2010?
A No.
Q And you say you were in counseling but you don't do that any more
because you moved.
A Correct.
Q Did you ever take medication for?
A I did twice, and I'll never take it again because my first experience
is with Serzone, and I told Dr. Sperazza that it made me so suicidal I
felt like driving my car off the Weatherly Hill Climb, and her answer
to me was, "Oh, take more." That ended really well for me. And my
second experience was Abilify, which was a complete disaster. And
I'm pretty sure they're so bad for me because, really, I don't have
bipolar, I'm just moody.
Page 11 of 29
Q Okay. Now, do you have problems concentrating?
A Yes.
Q Can you give me an example of when you lose concentration, of
something you're doing and you lose concentration?
A I lose my train of thought when talking. I do that a lot. I'll be telling
somebody something, and I'll just stop and I won't finish it. I'm like
not even aware that I do it until the person I'm talking to points it out.
And they're like, "You didn't finish your story," I'll be like, "Oh."
Q Are you able to follow the plot of a TV show?
A I don't know how to answer that. Yes, I could follow the plot, but if
we're watching a show that goes consecutively and I need to know
what happened in the last episode, I usually have to like watch part of
the last episode to see what happened because I don't remember. And
I don't mean like a week. Like, we don't have cable, so, we watch the
stuff on Hulu. So, as an example, we're watching the "Hero" series
now, and where we ended the last episode last night, I will have to go
back and see what happened before I could continue because I could
not tell you right now, and that was only from last night. I have no
idea.
Q Do you do any reading books or magazines?
A I'm not really any more. I used to be a really avid reader. I probably
stopped reading about eight months ago because I'm not retaining
what I read.
(Tr. 57). She testified that she sleeps “a lot” during the day, up to four hours, and
“wake[s] up mad.” (Tr. 62). She explained that she did not sleep well. (Tr. 65). She
testified that she was “not planning on” getting any additional mental health
treatment. (Tr. 65). She also testified that she thought the FDA was watching her
credit card, discovered she was using Darvocet, and pulled it from the market. (Tr.
49).
The ALJ issued a decision denying benefits on May 16, 2012. (Tr. 26). At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful
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activity since August 23, 2010, the application date. (Tr. 17). At step two, the ALJ
found that Plaintiff’s Tarlov's cyst, bipolar disorder, history of poly substance
abuse, and a recurrent breast abscess were medically determinable and severe. (Tr.
17). At step three, the ALJ found that Plaintiff did not meet or equal a Listing. (Tr.
17). The ALJ found that she had mild limitation in activities of daily living and
moderate limitations in maintaining concentration, persistence, and pace and social
functioning. (Tr. 18). The ALJ explained that:
In social functioning, the claimant has moderate difficulties. The
claimant states that she gets along with authority figures "fine," but
has problems getting along with family, friends, and neighbors, as her
"family thinks (her) health issues are immaturity." She also reports not
having a social life, but states that she does spend time with others
when "they come to check on (her)"
(Tr. 19-20). The ALJ found that Plaintiff had the RFC to:
[P]erform a range of sedentary work as defined in 20 CFR 416.967(a)
except she is unable to push or pull with the left shoulder or the left
leg. She can occasionally climb ramps and stairs, but never climb
ladders, ropes, or scaffolds. She can occasionally balance, stoop,
kneel, crouch, and crawl. She can occasionally reach overhead with
the left upper' extremity. Environmentally, she must avoid
concentrated exposure to vibration and hazards. She can understand,
remember, and carry out simple instructions, and she can have
occasional interaction with coworkers and the public.
(Tr. 19). The ALJ did not include a limitation to interacting with supervisors. (Tr.
20). The ALJ summarized the medical evidence relating to Plaintiff’s physical
impairments as follows:
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The claimant claims to have back pain radiating into her leg since her
breast mass was removed. As such, she was referred to pain
management physician, Dr. Thomas W. Hanlon, in October 2010.
Treatment records from Dr. Hanlon note that the claimant had
complaints of whole body pain, and that she had developed left leg
radicular symptoms. She also reported a left buttock/rectum feeling of
labor, as well as headaches, tinnitus, and discomfort of the lower
lumbar spine, which she stated began after her breast surgery. She
also reported associated symptoms of radicular bilateral arm pain and
bilateral leg pain. Dr. Hanlon reviewed an MRI of the lumbar spine
obtained in September 2010 that showed a Tarlov's cyst. However,
physical examination was essentially normal. The claimant had a
normal gait, muscle strength was 5/5 in all major muscle groups, and
there was no scoliosis or other abnormal spinal curvatures. The
claimant was alert and oriented. Her cranial nerves were grossly
intact; she had normal sensation, normal reflexes, and normal
memory, speech, and demeanor. Dr. Hanlon diagnosed the claimant
with low back pain and lumbosacral radiculitis (Exhibit 3F).
Treatment records from the physicians at Geisinger confirm the
claimant's complaints, but there is not much in the way of objective
findings. Likewise, MRI studies do not support a finding of disability,
and there is no electromyography (EMG) study to confirm nerve
damage or radiculopathy in the record (Exhibits 25F and 26F).
Treatment records from neurologist, Dr. James F. Hora, dated October
17,2011, note the claimant was being seen for complaints of memory
loss and gait disturbance. Physical examination this date revealed the
claimant's motor strength to be 5/5 in all extremities and her
coordination was intact. She did have some hyperreflexic deep tendon
reflexes at the knees and sensation was somewhat decreased to the
medial aspect of the bilateral lower extremities, however, her gait and
stance were stable. Upon mini-mental status examination, the claimant
scored 29/30. She knew recent events in the news, breakfast she had
that morning, and supper she had the night before. There was no
evidence of memory loss. Dr. Hora's impression of the claimant was
that she suffered from the subjective complaint of memory loss as
well as neuropathy with gait disturbance (Exhibit 26F).
Page 14 of 29
(Tr. 21). The ALJ summarized the evidence relating to Plaintiff’s mental health
treatment as follows:
Mental health treatment with Northeast Counseling Services in
October 2010 notes that the claimant indicated she suffered from a
rare disease called Tarlov cyst, which is a spinal cyst with cerebral
fluid leaking and causing pain in her legs as well as numbness, and
that she suffered from a breast infection. She stated that she was not
depressed, but frustrated and angry, because her son has to do
everything, like laundry and cook. However, she reported no problems
with emotions, but stated that her sleep was not good because of pain.
She also reported that she had just stopped drinking two months prior,
but that she used to drink heavily before that, in addition to doing
marijuana and cocaine until about 1994 or so. The claimant was
diagnosed with bipolar disorder and a history of polysubstance and
alcohol dependency. She was given a global assessment of
functioning (GAF) score of 55 (Exhibits 2F and 24F), consistent with
the undersigned's assessed residual functional capacity. Mental status
examinations do not support a claim for disability.
(Tr. 22). The ALJ assigned “significant weight” to the GAF score of 55, explaining
that it indicated “only moderate difficulty in social, occupational, or school
functioning such as few friends, or conflicts with peers or co-workers.” (Tr. 23).
The ALJ concluded that this was consistent with Plaintiff’s lack of mental health
treatment or psychiatric medications during the relevant period. (Tr. 23). The ALJ
assigned great weight to a state agency psychologist who opined that Plaintiff
could perform simple work and that her social skills were functional. (Tr. 24, 513).
At step four, the ALJ found that Plaintiff could not perform her past relevant work.
(Tr. 24). At step five, the ALJ found that Plaintiff could perform other work in the
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national economy. (Tr. 24). Consequently, the ALJ determined that Plaintiff was
not disabled within the meaning of the Act and not entitled to benefits. (Tr. 25).
After the ALJ decision, Plaintiff obtained counsel and submitted additional
evidence to the Appeals Council. (Tr. 660-730). This evidence included an opinion
from treating source Dr. George Yurko, D.O., that Plaintiff:
[W]ould have a difficult time sustaining any lengthy time on her feet
or any lengthy time sitting, and would be limited considerably in her
ability to lift, bend or perform other maneuvers that would require
engagement of her low back muscles. I am, therefore, also of the
opinion that the symptom complex that she exhibits would likely
make it impossible for her to engage in any gainful employment no
matter how sedentary.
(Tr. 662). He explained that, “it does appear that it is within a reasonable degree of
medical certainty that the Tarlov cyst can be causing left Sl nerve root irritation
with radicular pain down the leg.” (Tr. 662). Dr. Yurko also noted that Dr. Hora
would no longer see Plaintiff “because of some behavioral problems that
occurred.” (Tr. 662).
The new evidence contains notes from Dr. Hora that he would not see
Plaintiff anymore and that her primary care provider needed to “arrange psychiatric
evaluation.” (Tr. 714). He explained that:
During the intake interview with the nurse the patient became rude
and aggressive. The nurse was so concerned that she left the exam
room and came to my office. She told that this behavior had occurred
and that she was very uncomfortable staying in the room alone and
would not continue the rooming process. I went to the room and asked
what the problem was and she was clearly agitated about something,
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She said her bad mood was contagious. I told her that I would not see
her with this kind of behavior and asked her to leave the clinic.
(Tr. 714).
These records include a pulmonary clinic consultation that indicated Plaintiff
was “not getting along with her parents,” had “severe anxiety,” and felt “like
jumping out of [her] skin every morning.” (Tr. 704). Plaintiff demonstrated
“inappropriate laughter as well as flight of ideas.” (Tr. 704). Mental status
examination indicated pressured speech. (Tr. 705). Plaintiff was “initially not
cooperative with the lung exam[ination].” (Tr. 705). She had “multiple breakdowns
while describing her family….and certainly has significant anxiety.” (Tr. 705). Her
pulmonologist opined “that her anxiety and her psychiatric symptoms are playing a
major role rather than her asthma” in her pulmonary complaints and that “she
clearly needs…psychiatric consultation.” (Tr. 705). These records also include
notes from Dr. McMurry that “memory problems persist.” (Tr. 710-17).
V.
Plaintiff Allegations of Error
Several related theories support a remand in this case. First, Plaintiff was a
pro se claimant who exhibited mental illness. Thus, the ALJ had a heightened duty
to develop the record both for and against the award of benefits. The ALJ failed to
discharge this duty here because she did not request the relevant medical evidence
Plaintiff submitted to the Appeals Council after obtaining counsel. Second, these
records constitute new and material evidence. This evidence contains the only
Page 17 of 29
opinion by a treating physician in the record. Moreover, this evidence is relevant to
Plaintiff’s social functioning, as it shows she was unable to exhibit the social skills
required to successfully obtain treatment for her physical impairments. Thus,
finally, this evidence calls into question the ALJ’s assessment of her mental
function, particularly her social limitations. The ALJ relied on an opinion by a state
agency psychologist that Plaintiff’s social skills were intact. The evidence
submitted to the Appeals Council suggests this conclusion is not accurate. This
evidence also demonstrates that the ALJ’s failure to further explain and address
Plaintiff’s social impairments precludes meaningful review.
The Court notes that Plaintiff primarily focuses her appeal on physical,
rather than mental, limitations. However, this focus may be a symptom of her
mental illness. Providers observed that she lacked insight into her mental
impairments and, although multiple providers diagnosed her with bipolar disorder,
she consistently denied suffering from bipolar disorder. Thus, reliance on her
representations that she was not suffering from a mental illness and her refusal to
obtain treatment may be inappropriate in this case. For instance, Plaintiff asserts
that she gets along with authority figures “fine,” so the ALJ did not include
limitations in her residual functional capacity (“RFC”) relating to authority figures.
However, Plaintiff was unable to get along with authority figures in the form of
treating providers or state agency personnel. Her lack of insight does not provide
Page 18 of 29
the ALJ’s decision to exclude additional social limitations with substantial
evidence.
Plaintiff did not specifically allege these issues, but did generally allege that
the ALJ should have considered the evidence that was before the Appeals Council.
(Pl. Brief); (Pl. Reply). Given that she proceeds pro se, that is sufficient. As the
Third Circuit explained in Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d
Cir. 2013):
[W]e tend to be flexible when applying procedural rules to pro se
litigants, especially when interpreting their pleadings. See, e.g., Higgs
v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.2011) (“The obligation to
liberally construe a pro se litigant's pleadings is well-established.”).
This means that we are willing to apply the relevant legal principle
even when the complaint has failed to name it. Dluhos v. Strasberg,
321 F.3d 365, 369 (3d Cir.2003). And at least on one occasion, we
have refused to apply the doctrine of appellate waiver when dealing
with a pro se litigant. Tabron v. Grace, 6 F.3d 147, 153 n. 2 (3d
Cir.1993). This tradition of leniency descends from the Supreme
Court's decades-old decision in Haines v. Kerner, 404 U.S. 519, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972). In Haines, the Court instructed
judges to hold pro se complaints “to less stringent standards than
formal pleadings drafted by lawyers.” Id. at 520, 92 S.Ct. 594; see
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007).
Id. at 244.
An ALJ must sufficiently develop the record. As the Third Circuit explained
in Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995):
ALJs have a duty to develop a full and fair record in social security
cases. See Brown v. Shalala, 44 F.3d 931, 934 (11th Cir.1995); Smith
v. Harris, 644 F.2d 985, 989 (3d Cir.1981). Accordingly, an ALJ must
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secure relevant information regarding a claimant's entitlement to
social security benefits. Hess, 497 F.2d at 841. In Hess we reasoned
that “[a]lthough the burden is upon the claimant to prove his
disability, 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.” Id. at 840.
Id. at 902. “It is the ALJ's duty to investigate the facts and develop the arguments
both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 120 S.Ct.
2080, 147 L.Ed.2d 80 (2000). ALJs owe a heightened duty to pro se claimants,
asthe Third Circuit explained in Reefer v. Barnhart, 326 F.3d 376 (3d Cir. 2003):
An ALJ owes a duty to a pro se claimant to help him or her develop
the administrative record. “When a claimant appears at a hearing
without counsel, the ALJ must ‘scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.’ ” Key v.
Heckler, 754 F.2d 1545, 1551 (9th Cir.1985) (quoting Cox v.
Califano, 587 F.2d 988, 991 (9th Cir.1978)); Dobrowolsky, 606 F.2d
at 407 (noting that an ALJ must “assume a more active role when the
claimant is unrepresented”). See generally Ventura v. Shalala, 55 F.3d
900, 902 (3d Cir.1995) (“ALJs have a duty to develop a full and fair
record in social security cases.”)
Id. at 380.
Similarly, remand may be appropriate if a claimant produces new and
material evidence that was not before the ALJ. When the Appeals Council denies
review, evidence that was not before the ALJ may only be used to determine
whether it provides a basis for remand under sentence six of section 405(g), 42
U.S.C. (“Sentence Six”). See Szubak v. Secretary of Health and Human Servs., 745
F.2d 831, 833 (3d Cir. 1984); Matthews v. Apfel, 239 F.3d 589, 591-92 (3d Cir.
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2001). Sentence Six requires a remand when evidence is “new” and “material” if
the claimant demonstrated “good cause” for not having incorporated the evidence
into the administrative record. Id. In order to be material, “the new evidence [must]
relate to the time period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent deterioration of the
previously non-disabling condition.” Id. The relevant time period is “the period on
or before the date of the [ALJ's] hearing decision.” 20 C.F.R. § 404.970(b);
Mathews, 239 F.3d at 592. The materiality standard “requires that there be a
reasonable possibility that the new evidence would have changed the outcome of
the Secretary's determination.” Szubak, 745 F.2d at 833.
An ALJ must provide a sufficient explanation for a denial of benefits. The
Third Circuit held in Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994) that:
[T]he Secretary must “explicitly” weigh all relevant, probative and
available evidence. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d
Cir.1979); see also Brewster v. Heckler, 786 F.2d 581, 584 (3d
Cir.1986); Cotter, 642 F.2d at 705. The Secretary must provide some
explanation for a rejection of probative evidence which would suggest
a contrary disposition. Brewster, 786 F.2d at 585. The Secretary may
properly accept some parts of the medical evidence and reject other
parts, but she must consider all the evidence and give some reason for
discounting the evidence she rejects. Stewart v. Secretary of H.E.W.,
714 F.2d 287, 290 (3d Cir.1983)
Id. at 48; see also Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504-05 (3d Cir.
2009) (“The ALJ must provide a ‘discussion of the evidence’ and an ‘explanation
of reasoning’ for his conclusion sufficient to enable meaningful judicial review”)
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(quoting Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000));
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Here, the ALJ failed to sufficiently develop the record, which resulted in
evidentiary gaps. Reefer v. Barnhart, 326 F.3d 376 (3d Cir. 2003). Plaintiff’s
mental illness makes this failure more acute. See Plummer v. Apfel, 186 F.3d 422,
434 (3d Cir. 1999) (“The ALJ has a duty to develop the record when there is a
suggestion of mental impairment by inquiring into the present status of impairment
and its possible effects on the claimant's ability to work.”). Plaintiff did not appear
to recognize the need for a medical opinion or the importance of the state agency
medical opinions in the file. (Tr. 37). She testified:
CLMT: Well, there's two doctors on the disc that I've never
heard of.
ALJ: Okay.
CLMT: And I wrote their names down because I never heard of them.
And Dr. Mark Bohn, M.D ..
ALJ: How do you spell that?
CLMT: B-O-H-N. I have no idea who he is. And Anthony
Galdieri, Ph.D., I've never heard of him either.
ALJ: Ph.D.?
CLMT: And Mark Bohn is an M.D. Mark Bohn.
ALJ: Okay, Mark -- Michael Bohn? No. We have a Michael Bohn
who's -- that wasn't it?
CLMT: No.
ALJ: Okay.
CLMT: His name's Mark Bohn, B-O-H-N.
I have no idea who he is.
ALJ: It could be the doctors from the state agency. Let me see. Yeah.
Anthony Galdieri is from the Social Security Administration
component that made your original decision.
CLMT: Okay.
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ALJ: That's where he is from. And Mark Bohn is also from the state
agency. One is a medical doctor and the other one's the psychologist.
CLMT: Okay.
ALJ: Okay? Do you have any objections to us considering your
records?
CLMT: No.
ALJ: Okay. Therefore, Exhibits 1A through 23F are admitted into
evidence.
(Tr. 37-39). The ALJ did not explain that Dr. Bohn and Dr. Galdieri had provided
medical opinions that Plaintiff was not disabled, that disability cases often turn on
medical opinions, or that Plaintiff could obtain medical opinions from her own
treating physicians. Id.
Moreover, the evidence submitted to the Appeals Council is new, not
cumulative, and material. Defendant asserts that the evidence is not new because it
“rehashes” treatment records that were before the ALJ. (Def. Brief at 21-23).
However, the evidence also contains an interpretation and opinion by a treating
physician, which was not before the ALJ. See Puterbaugh v. Colvin, 1:14-CV1134, 2015 WL 4730068, at *11 (M.D. Pa. Aug. 10, 2015) (Treating physician
opinion submitted to the Appeals Council was new and material because “[t]he
Regulations and Third Circuit case law, as described above, also place heavy
emphasis on opinions from treating sources. Thus, a treating source opinion that
Plaintiff could not perform… work raises a reasonable possibility that the outcome
would be different.”) (citing Mathews, 239 F.3d at 592).
Page 23 of 29
Defendant contends that Dr. Yurko’s opinion is not material simply because
it was authored outside the relevant period. (Def. Brief 22). However, medical
evidence that is not from a relevant period can still be probative of disability
during the relevant period. In fact, the Regulations and case law require the ALJ to
consider non-contemporaneous evidence. For instance, the Regulations require the
ALJ to evaluate the medical records for at least twelve months prior to an
application for SSI, even though benefits for SSI may not be awarded until the
month after the application. 20 C.F.R. § 416.912(d) (“Before we make a
determination that you are not disabled, we will develop your complete medical
history for at least the 12 months preceding the month in which you file your
application unless there is a reason to believe that development of an earlier period
is necessary or unless you say that your disability began less than 12 months before
you filed your application.”); see also 20 C.F.R. § 404.1512(d). There is no
exception to this requirement in the Regulations for cases with a previously
adjudicated claim within twelve months.
Similarly, SSR 83-20 requires the ALJ to consider non-contemporaneous
evidence when a claimant alleges disability due to a slowly progressing disease
with an onset prior to the earliest available evidence. SSR 83-20; Newell v. Comm.
of Social Security, 347 F.3d 541, 547 (3d Cir. 2003) (“[E]ven noncontemporaneous records of Newell's liver disease, diabetes, and neuropathy are
Page 24 of 29
relevant to the determination of whether their onset occurred by the date Newell
alleges. Here, the ALJ failed properly to consider the non-contemporaneous
evidence presented by Newell in order to perform a retrospective analysis.”) (citing
Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir.1990)). Non-contemporaneous
evidence also assists an ALJ understand the course of a claimant’s impairments.
SSR 96-7p (“Apart from the medical signs and laboratory findings, the medical
evidence, especially a longitudinal medical record, can be extremely valuable in
the adjudicator's evaluation of an individual's statements about pain or other
symptoms. Important information about symptoms recorded by medical sources
and reported in the medical evidence may include…course over time (e.g., whether
worsening, improving, or static)”).
Moreover, the new evidence demonstrates Plaintiff’s difficulty with social
interaction. Dr. Yurko also noted that Dr. Hora would no longer see Plaintiff
“because of some behavioral problems that occurred.” (Tr. 662). Dr. Hora
explained that:
During the intake interview with the nurse the patient became rude
and aggressive. The nurse was so concerned that she left the exam
room and came to my office. She told that this behavior had occurred
and that she was very uncomfortable staying in the room alone and
would not continue the rooming process. I went to the room and asked
what the problem was and she was clearly agitated about something,
She said her bad mood was contagious. I told her that I would not see
her with this kind of behavior and asked her to leave the clinic.
Page 25 of 29
(Tr. 714). Plaintiff’s pulmonologist noted “not getting along with her parents,” had
“severe anxiety,” and felt “like jumping out of [her] skin every morning.” (Tr.
704). Plaintiff demonstrated “inappropriate laughter as well as flight of ideas.” (Tr.
704). Mental status examination indicated pressured speech. (Tr. 705). Plaintiff
was “initially not cooperative with the lung exam[ination].” (Tr. 705). She had
“multiple breakdowns while describing her family….and certainly has significant
anxiety.” (Tr. 705). Her pulmonologist opined “that her anxiety and her psychiatric
symptoms are playing a major role rather than her asthma” in her pulmonary
complaints and that “she clearly needs…psychiatric consultation.” (Tr. 705).
The ALJ relied on Plaintiff’s lack of mental health treatment or psychiatric
medications during the relevant period. (Tr. 23). However, the ALJ failed to
consider whether lack of insight, rather than lack of disability, was the cause of her
conservative treatment. SSR 96-7p. Plaintiff’s lack of insight into her mental health
does not necessarily render her less credible or not disabled. See e.g., Nguyen v.
Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“it is common knowledge that
depression is one of the most underreported illnesses in the country because those
afflicted often do not recognize that their condition reflects a potentially serious
mental illness.”); Kegler v. Colvin, No. 12-CV-413-WMC, 2014 WL 4538117, at
*1 (W.D. Wis. Sept. 11, 2014); Quillin v. Astrue, No. 2:10-CV-037, 2011 WL
9004, at *8-10 (E.D. Tenn. Jan. 3, 2011); Reid v. Astrue, No. 1:07-CV-0577(LEK),
Page 26 of 29
2010 WL 2594611, at *9 (N.D.N.Y. June 23, 2010); Oppegaard v. Astrue, No.
C09-768-JPD, 2010 WL 1406379, at *9 (W.D. Wash. Mar. 31, 2010); Leon v.
Astrue, No. 08 C 7430, 2010 WL 934043, at *4 (N.D. Ill. Mar. 5, 2010); Shore v.
Callahan, 977 F. Supp. 1075, 1079 (D. Or. 1997); Mauro v. Comm’r of Soc. Sec.,
No. 07-12095, 2008 WL 495362, at *4 (E.D. Mich. Feb. 20, 2008) (“Plaintiff is
not a malingerer; indeed, he seems to downplay his impairments”). Defendant does
not contend that the records were omitted without good cause. (Def. Brief). Thus,
remand is appropriate pursuant to Sentence Six.
The ALJ also does not mention significant evidence relevant to Plaintiff’s
mental state. See Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). For instance,
during the psychiatric evaluation at Northeast Counseling, when asked if Plaintiff
had any goals, she responded, “ask f****** retarded questions to someone else.”
(Tr. 202). When asked if she was going to kill herself, she responded, “what a
ridiculous question. As per usual.” (Tr. 199). She felt “these are all ridiculous
questions.” (Tr. 199). She indicated that the “main reason she was there” was Dr.
Yurko and evaluators observed she had poor insight. (Tr. 195). She had a “history
of getting into fights with others.” (Tr. 195). She was “irritable” during most of the
interview. (Tr. 196). The ALJ also did not mention the multiple, consistent
observations of state agency employees that she was combative, “very sarcastic
and unfriendly.” (Tr. 526-27). See SSR 96-7 (“The adjudicator must also consider
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any observations about the individual recorded by Social Security Administration
(SSA) employees during interviews, whether in person or by telephone. In
instances where the individual attends an administrative proceeding conducted by
the adjudicator, the adjudicator may also consider his or her own recorded
observations of the individual as part of the overall evaluation of the credibility of
the individual's statements.”).
Thus, the Court remands pursuant to Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981); Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833
(3d Cir. 1984); and Reefer v. Barnhart, 326 F.3d 376 (3d Cir. 2003). On remand,
the ALJ will be required to consider the evidence submitted to the Appeals
Council, particularly Dr. Yurko’s opinion regarding her physical impairments, and
sufficiently explain how limitations in the RFC account for Plaintiff’s social
limitations.
VII.
Conclusion
The Court finds that the ALJ’s decision lacks substantial evidence because
the ALJ failed to properly evaluate the full record of medical evidence. Pursuant to
42 U.S.C. § 405(g), the decision of the Commissioner is vacated, and this case is
remanded for further proceedings.
An appropriate Order in accordance with this Memorandum will follow.
Page 28 of 29
Dated: September 30, 2015
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE
Page 29 of 29
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