Depew v. Colvin
Filing
11
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this matter is remanded for further consideration. For the reasons outlined by Plaintiff (Doc. 9 at 15), further proceedings are to be EXPEDITED and a decision made in compliance with this Memorandum is to be rendered as soon as practicable. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/26/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BILLIE JO DEPEW,
:
:CIVIL ACTION NO. 3:16-CV-1376
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”).
alleged disability beginning on January 12, 2009.
(Doc. 1.)
(R. 17.)
She
The
Administrative Law Judge (“ALJ”) who evaluated the claim, Randy
Riley, concluded in his August 19, 2015, decision that Plaintiff
had the severe impairments of urinary and fecal incontinence,
Bipolar Disorder, Panic Disorder, and a remote history of alcohol
abuse.
(R. 19.)
ALJ Riley found that these impairments did not
meet or equal a listing when considered alone or in combination.
(R. 20-21.)
He also found that Plaintiff had the residual
functional capacity (“RFC”) to perform sedentary work with certain
nonexertional limitations and that she was capable of performing
jobs that existed in significant numbers in the national economy.
(R. 21-25.)
ALJ Riley therefore found Plaintiff was not disabled
from the alleged onset date through December 31, 2012, the date
last insured.
(R. 27.)
These findings were made in the Decision
by ALJ Riley following remand from the Appeals Council.
In its
remand order issued on May 7, 2015, the Appeals Council directed
the ALJ to evaluate the severity of Plaintiff’s urinary
incontinence and stool leakage, give further consideration to the
treating source opinion of Stephen Diltz, Jr., M.D., and evaluate
the third party testimony from Plaintiff’s son.
(R. 17; Doc. 9 at
2.)
In her “Statement of Errors” Plaintiff states that “[t]he ALJ
erred on remand when he failed to comply with the Appeal Council
order.”
(Doc. 9 at 3.)
After careful review of the record and the
parties’ filings, the Court concludes this appeal is properly
granted and this matter is remanded for expedited further
consideration.
I. Background
A.
Procedural Background
As noted above, the matter was before ALJ Riley on remand from
the Appeals Council.
(R. 17.)
ALJ Riley held a hearing on July
30, 2015, in Harrisburg, Pennsylvania.
(R. 17.)
Plaintiff, who
was represented by an attorney, appeared at the hearing as did
Vocational Expert (“VE”) Paul Anderson.
(R. 33.)
Following the
unfavorable decision outlined above, Plaintiff filed a request for
review dated October 20, 2015.
(R. 12-13.)
The Appeals Council
denied Plaintiff’s request for review on May 5, 2016.
2
(R. 1-7.)
In doing so, the ALJ’s decision became the decision of the Acting
Commissioner.
(R. 1.)
On July 1, 2016, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.
(Doc. 1.)
Defendant
filed her answer and the Social Security Administration transcript
on September 12, 2016.
(Docs. 6, 7.)
supporting brief on October 27, 2016.
Plaintiff filed her
her brief on December 1, 2016.
(Doc. 9.)
(Doc. 10.)
Defendant filed
Plaintiff did not file
a reply brief and the time for doing so has passed.
Therefore,
this matter is ripe for disposition.
B.
Factual Background
Plaintiff was born on March 15, 1968, and was forty-four years
old on the date last insured.
(R. 25.)
She has a high school
education and past relevant work as a Parking Enforcement Officer
and Stores Laborer.
1.
(Id.)
Impairment Evidence
The parties have not set out a summary of impairment evidence
in their briefs to the Court.
(See Docs. 9, 10.)
Rather,
Plaintiff cites the evidence pertinent to arguments presented in
the Arguments section of her brief (Doc. 9 at 3-15), and Defendant
relies on the ALJ’s summary as well as facts incorporated by
Defendant in support of arguments asserted (Doc. 10 at 4-15).
Given this briefing approach, the Court will reference pertinent
evidence in the context of the analysis of the issues presented in
3
this appeal.
2.
ALJ Decision
As noted above, ALJ Riley issued his Decision on August 19,
2015.
(R. 21-32.)
He made the following Findings of Fact and
Conclusions of Law:
1.
The claimant last met the insured status
requirements of the Social Security Act
on December 31, 2012.
2.
The claimant did not engage in
substantial gainful activity during the
period from her alleged onset date of
January 12, 2009 through her date last
insured of December 31, 2012 (20 CFR
404-1571 et seq.).
3.
Through the date last insured, the
claimant had the following severe
impairments: urinary and fecal
incontinence, Bipolar Disorder, Panic
Disorder, and a remote history of
alcohol abuse (20 CFR 404.1520(c)).
4.
Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of
the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5.
After careful consideration of the
entire record, the undersigned finds
that, through the date last insured, the
claimant had the residual functional
capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except the
claimant must avoid exposure to
excessive vibration and is limited to
the performance of simple, routine,
repetitive tasks in a work environment
free from fast-paced production
involving only simple work-related
4
decisions with few, if any, workplace
changes; no interaction with the public;
no more than occasional interaction with
coworkers and supervisors; and no tandem
tasks.
6.
Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).
7.
The claimant was born on March 15, 1968
and was 44 years old, which is defined
as a younger individual age 18-44, on
the date last insured (20 CFR 404.1563).
8.
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).
9.
Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 404.1568).
10.
Through the date last insured,
considering the claimant’s age
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
and 404.1569(a)).
11.
The claimant was not under a disability,
as defined in the Social Security Act,
at any time from January 12, 2009, the
alleged onset date, through December 31,
2012, the date last insured (20 CFR
404.1520(g)).
(R. 19-27.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
5
determine whether a claimant is disabled.1
It is necessary for the
Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
1
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, 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).
6
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
Id.
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
work.
If the claimant satisfies this burden, then the Commissioner
must show 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, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs which existed in significant numbers
in the national economy.
(R. 25-26.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.
Substantial evidence
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
7
The Third
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
8
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or 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.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
See, e.g., Knepp v.
“There is no requirement
that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).
Hur v. Barnhart, 94 F. App’x 130, 133 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
.
the Cotter doctrine is not implicated.”
Hernandez v. Comm’f of
Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
Hartranft,
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
“However,
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
9
in making his findings, applied the correct legal standards to the
facts presented.”
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where the ALJ’s decision
is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.
See, e.g., Albury v. Comm’r
of Soc. Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not
precedential) (citing Burnett v. Commissioner, 220 F.3d 112 (3d
Cir. 2000) (“[O]ur primary concern has always been the ability to
conduct meaningful judicial review.”).
An ALJ’s decision can only
be reviewed by a court based on the evidence that was before the
ALJ at the time he or she made his or her decision.
Matthews v.
Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Here Plaintiff additionally notes that “[t]he regulations
governing the actions of the Commissioner clearly state that the
ALJ ‘shall take any action that is ordered by the Appeals Council
and may take any additional action that is not inconsistent with
the Appeals Council’s remand order.’”
(Doc. 9 at 3 (citing 20
C.F.R. Ch. III, 404.977(b)) (emphasis added by Plaintiff).)
On the
basis of this regulation, Plaintiff states that “in this case, the
Court must determine whether there is enough evidence in the record
to lead ‘a reasonable mind’ to determine that, on remand, the ALJ
fully complied with the Order of the Appeals Council issued on May
7, 2015.”
(Doc. 9 at 3.)
10
IV. Discussion
Plaintiff asserts that the Acting Commissioner’s decision
should be remanded for expedited consideration because the ALJ
erred on remand when he failed to comply with the Appeals Council
Order.2
(Doc. 9 at 3, 15.)
Under this broad issue, Plaintiff
asserts more specific errors which the Court will address in turn.
A.
Evaluation of the Severity and Effects of Plaintiff’s Urinary
Incontinence and Stool Leakage
Plaintiff maintains that the ALJ made numerous errors in his
attempt to comply with the Appeals Council’s first directive which
was to “[e]valuate the severity and effects of the claimant’s
urinary incontinence and stool leakage.”
(Doc. 9 at 2; R. 77.)
Plaintiff identifies the following errors: 1) the ALJ made
erroneous findings regarding the extent of treatment prior to her
date last insured; 2) the ALJ failed to consider unequivocal
evidence of progression prior to her date last insured; 3) the ALJ
failed to consider the “longitudinal perspective found in the new
medical evidence”; and 4) the ALJ failed to consider substantial
evidence presented at the second hearing.
(Doc. 9 at 4-7.)
In
response to these arguments, Defendant asserts that the record does
not support additional limitations, the ALJ was not required to
undertake an exhaustive discussion of the record and evaluate every
2
Plaintiff seeks expedited consideration because of “the
inordinate delay caused by the ALJ’s second denial” and her recent
diagnosis of stage IV lung cancer. (Doc. 9 at 15.)
11
piece of evidence, and assuming the ALJ did not properly consider
the effects of Plaintiff’s urinary and fecal incontinence, the
error should be considered harmless.
(Doc. 10 at 7-9.)
The Court
concludes that the errors alleged by Plaintiff on this issue are
cause for remand.
After finding that Plaintiff suffered from the severe
impairment of urinary and fecal incontinence prior to the date last
insured (R. 19), ALJ Riley noted that Plaintiff stated that she
needed to use the bathroom nine to ten times a day, that her
impairments could reasonably be expected to cause the alleged
symptoms, but Plaintiff’s statements regarding the limiting effects
of the symptoms were not entirely credible as the medical evidence
did not support her allegations (R. 22).
ALJ Riley discussed
Plaintiff’s urinary and fecal incontinence as follows:
The record demonstrates the claimant
suffers from fecal and urinary incontinence
(Exhibits 13F, 19F, 22F). Her records reveal
a longstanding history of urinary
incontinence that the claimant admitted to
treating prior to her date last insured with
only the use of poise pads. By January 2012,
the claimant also reported noticing a “very
small amount” of rectal incontinence just
after evacuating, and only on occasion
(Exhibit 19F, page 5). Though later records
suggest the claimant reported progressive
symptoms beginning in 2010, the claimant’s
treatment notes show evidence of progression
only following the claimant’s December 2012
date last insured (Exhibit 22F). At this
time, the claimant noted daily stress
incontinence, urge incontinence, and frequent
nocturia (Exhibit 22F).
12
However, prior to her date last insured,
the claimant’s records show her physicians
suggested she treat her symptoms with the
performance of Kegel exercises.
(R. 22.)
This analysis is deficient in several respects.
With one
exception, ALJ Riley either provides general citation to exhibits
spanning many pages or provides no citation at all.
The ALJ’s
general citation to exhibits of record is not adequate evidentiary
support for his conclusions.
See, e.g., Gross v. Comm’r of Soc.
Sec., 653 F. App’x 116, 121-22 (3d Cir. 2016) (not precedential).
The deficit is exacerbated in that statements made without citation
contain factual errors regarding treatment during the relevant time
period--Plaintiff took medication for urinary incontinence well
before her date last insured of December 31, 2012, and thus was
treated with more than “the use of poise pads” and “Kegel
exercises” (R. 22).
(See, e.g., R. 539.)
Defendant is correct that an ALJ need not discuss every piece
of evidence (Doc. 10 at 7), but here, in addition to his overly
broad citation to the record, the ALJ failed to reference or
discuss probative evidence and the Court cannot determine from the
record “whether the reasons for rejection were improper.”
642 F.2d at 706-07.
Cotter,
For example, with ALJ Riley’s general
reference to records post-dating Plaintiff’s date last insured and
conclusory dismissal of their relevance (R. 22 (citing Ex. 22F)),
he does not acknowledge the Appeals Council’s recognition that
13
these records offer “a longitudinal perspective on limitations that
the claimant may have experienced prior to the date last insured”
(R. 76) nor does he explain why he discounts the “History of
Present Illness” office notes of October 28, 2013, in which the
medical provider reports symptoms “progressively worsening over the
last three years.”
(R. 645.) Symptoms identified included urgency
(“almost always”), frequency (every one to two hours) and leakage
(with moderate activity).
(Id.)
These symptoms were reported in
January 2012 (without the specificity later provided) (R. 535, 541)
but ALJ Riley acknowledged only the symptoms reported after the
date last insured.3
(R. 22.)
Defendant urges the Court to find error on this issue harmless
because “Plaintiff has not identified any objective persuasive
evidence whatsoever that would support added restrictions.”
(Doc.
10 at 9 (citing Doc. 9 at 3-7; Shineski v. Sanders, 129 S. Ct.
1696, 1706 (2009) (recognizing that the “burden of showing that an
error is harmful normally falls upon the party attacking the
agency’s determination”); Brown v. Astrue, 2011 WL 2624439, at 2
(3d Cir. 2011) (stating that “an error is ‘harmless’ when, despite
3
The history and symptoms set out in the October 28, 2013,
office notes (R. 645) and provided when Plaintiff had a
cystometrogram (CMG) performed on December 2, 2013 (R. 648),
considered in conjunction with earlier reported symptoms (R. 535,
541) and CMG results indicating “[s]evere anatomic stress type
incontinence with urodynamic evidence of significant bladder
instability” (R. 649), may present a case where additional evidence
is warranted regarding the likely presence and/or effects of the
condition as of the date last insured.
14
the technical correctness of an appellant’s legal contention, there
is also ‘no set of facts’ upon which the appellant could
recover”)).)
Contrary to Defendant’s assertion, Plaintiff has
pointed to a basis for finding the error harmful: if the ALJ had
considered both the old and new evidence from a longitudinal
perspective, he would have found that her “frequent urination prior
to the date last insured would have required much more than
customary work breaks to use the bathroom.”
(Doc. 9 at 6.)
Because the VE testified that all jobs would be eliminated if an
individual with Plaintiff’s RFC exceeded the routine and customary
rest breaks (R. 41), Plaintiff’s reported frequency, if credited,
would present a set of facts upon which she could recover.
See
Brown, 2011 WL 2624429, at *2.
Because the ALJ’s evaluation of the severity and effects of
Plaintiff’s urinary incontinence and stool leakage does not meet
the substantial evidence standard, the Court cannot conclude that
the ALJ adequately complied with the Appeals Council’s directive on
the issue.
harmless.
Furthermore, the Court cannot conclude this error is
Therefore, remand is warranted for a more thorough
evaluation of Plaintiff’s urinary and fecal incontinence severe
medical impairment.
B.
Treating Psychiatrist’s Opinion
Plaintiff contends that, contrary to the Appeals Council
directive, the ALJ failed to adequately evaluate the opinion of
15
Plaintiff’s treating psychiatrist, Stephen Diltz, M.D.
7.)
(Doc. 9 at
Defendant responds that there is no merit to Plaintiff’s
assertion that the ALJ erred in his analysis of the opinion
evidence.
(Doc. 10 at 9.)
The Court concludes Plaintiff has shown
the ALJ erred on the bases alleged.
In its order remanding the case to the ALJ, the Appeals
Council stated that the initial hearing decision did not contain an
adequate evaluation of Plaintiff’s treating psychiatrist, Stephen
Diltz, M.D.
(R. 77.)
The ALJ was directed to give further
consideration to this opinion
pursuant to the provisions of 20 CFR 404.1527
and Social Security Rulings 96-2p and 96-5p,
and explain the weight given to such opinion
evidence. As appropriate, the Administrative
Law Judge may request the treating source to
provide additional evidence and/or further
clarification if the opinion and medical
source statement about what the claimant
could still do despite the impairments
through December 31, 2012 (20 CFR 404.1512).
The Administrate Law Judge may enlist the aid
and cooperation of the claimant’s
representative in developing evidence from
the claimant’s treating source.
(R. 77.)
In his September 12, 2016, Decision, ALJ Riley set out the
following analysis of Dr. Diltz’ opinion:
The undersigned also gives little weight
to the October 2012 assessment provided by
Stephen L. Diltz, Jr, MD, suggesting the
claimant has marked and extreme restrictions
in multiple work-related functional areas;
would require unscheduled breaks in a regular
workday; would likely be absent from work
16
more than 4 days per month; would
depcompensate with even a minimal increase in
mental demands; and is unable to function
outside a highly supportive living
arrangement (Exhibit 5F). The opinion is
inconsistent with his own treatment records
showing the claimant’s moods as generally
stable and her panic symptoms as low grade.
Additionally, the opinion is inconsistent
with the claimant’s admissions regarding her
capacity for daily activities as discussed
further below.4
(R. 23.)
Plaintiff specifically argues that the ALJ erroneously
concluded that Dr. Diltz’ opinion was inconsistent with treatment
4
The Decision contains the following discussion of daily
activities:
In the record, the claimant also
described daily activities that are not
limited to the extent one would expect, given
the complaints of disabling symptoms and
limitations. Despite the claimant’s
allegations regarding limiting symptoms and
functional restrictions, the claimant
admitted that she remains capable of
performing all of her personal care
activities independently. She also stated
that she is able to prepare her own meals,
clean her home, launder clothes, drive a car,
travel independently, shop in stores, and
manage money (Exhibit 3E). Additionally, the
claimant stated that she attends weekly AA
meetings and regularly visits family,
suggesting the claimant retains a greater
capacity for social activities than alleged.
While none of these factors alone is
inconsistent with a finding of disability,
taken together, they are suggestive of an
individual capable of performing work
activity on a sustained basis within the
above residual functional capacity.
(R. 24)
17
records.
(Doc. 9 at 10.)
In support of the argument, Plaintiff
cites records which are consistent with Dr. Diltz’ opinion and
contrast with treatment records referred to by ALJ Riley which he
concluded show that Plaintiff’s moods were “generally stable” and
her panic symptoms were “low grade” (R. 23): on the same date as he
issued his opinion Dr. Diltz noted
“STILL DEPRESSED, ANXIOUS/AGORAPHOBIC”,
“OCULAR MIGRAINE”, new medication was started
(R. 336). In addition, while failing to
acknowledge that Dr. Dilts [sic] repeatedly
adjusted medications and that Depew was even
described as “REFRACTORY” or resistant to
treatment, the ALJ instead generally relies
on limited and isolated portions of the
record that note Depew having a stable mood
and low grade panic symptoms (ALJ Decision,
R. 23) while failing to address the more
severe portions including
“UPSET/ANXIOUS/PANICKY” (R. 288); “ONGOING
ISSUES” and “TEARFUL” (R. 289, 291, 299);
“ANXIETY” (R. 291, 293, 294, 297, 298);
“DEPRESSION” (R. 291); anxiety is “going
through the roof” (R. 292); “STILL ANXIOUS”,
“DEPRESSED”, AGORAPHOBIA (R. 293, 335, 336,
337); “ANXIOUS” (R. 295); [(]etc.); 1F, 2F,
5F, 16F).
(Doc. 9 at 10-11.)
Review of the record shows that the ALJ’s analysis of the
treating psychiatrist’s opinion falls short of the substantial
evidence standard for reasons discussed in the preceding section of
this Memorandum: the ALJ does not address probative evidence and
does not provide sufficient explanation or citation for his
conclusory statements.
As set out above, it is the ALJ’s duty to
appropriately cite the record, Gross, 653 F. App’x at 121-22, and
18
not only to state the evidence considered which supports the result
but also to indicate what evidence was rejected, Cotter, 642 F.2d
at 706-07.
A thorough explanation of the evidence relied upon by
the ALJ in discounting a medical source opinion takes on added
significance in a case involving severe mental impairment in that
the Third Circuit has advised that “[t]he principle that an ALJ
should not substitute his lay opinion for the medical opinion of
experts is especially profound in a case involving mental
disability.”
Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000).
Furthermore, in the case of mental health impairments, it is
recognized that a medical source’s opinion which relies on
subjective complaints should not necessarily be undermined because
psychological and psychiatric conditions are necessarily and
largely diagnosed on the basis of a patient’s subjective
complaints.
Schickel v. Colvin, No. 14 C 5763, 2015 WL 8481964, at
*11 (N.D. Ill. Dec. 10, 2015); Hall v. Astrue, 882 F. Supp. 2d 732,
740 (D. Del. 2012).
Courts also recognize that the work
environment and home or mental health clinic environment can be
completely different for a person suffering from a mental
impairment marked by anxiety.
Morales, 225 F.3d at 319.
Pursuant to this authority, ALJ Riley’s characterization of
Dr. Diltz’ records as “showing the claimant’s moods as generally
stable and her panic symptoms as low grade” (R. 23)--a statement
unsupported by citation--clearly ignores contrary findings, many of
19
which are cited by Plaintiff in the excerpt from her brief quoted
above.5
Similarly, observations in the treatment records that
Plaintiff was often found cooperative in the clinical setting do
not undermine her reports of anxiety, agoraphobia and depression.
(See, e.g., R. 293-297.)
Because the ALJ’s analysis on its face
does not provide an adequate explanation for his conclusion that
Dr. Diltz’ opinion was entitled to little weight, and because the
Court’s review of relevant treatment records shows that he
mischaracterized the record, the claimed inconsistency between Dr.
Diltz’ opinion and his treatment records is not supported by
substantial evidence.6
5
Although Defendant cannot do what the ALJ should have done,
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Dobrowolsky,
606 F.2d at 406-07,
citations in Defendants’ brief are similarly
deficient in that Defendant cites multiple page ranges, a review of
which shows that they contain many reports of mental health
difficulties (R. 287, 288, 291, 292, 293, 294, 335, 336, 337) in
addition to occasional notations that Plaintiff’s status was good
or her mood was stable (R. 285, 286, 296). (Doc. 10 at 12 (citing
R. 284-301, 334-43, 452-54).)
6
The considerations apply with similar force to ALJ Riley’s
assessment of Dr. Fischetto’s opinion in that ALJ Riley undermines
the opinion in part because it is not consistent with
contemporaneous mental health treatment records which the Court
assumes to be the records of Dr. Diltz. (See R. 23.) The Court
also finds problematic ALJ Riley’s conclusion that the opinion was
entitled to little weight on the basis that he assessed Plaintiff
“during an acute anxiety attack and not during her general periods
of stability.” (R. 23.) The guidance set out in the text
acknowledges the variable symptoms experienced by individuals with
mental health impairments and the deference due mental health
professionals–without more explanation or evidence, discounting an
opinion because the examiner witnessed exacerbated symptoms runs
counter to the authority cited.
20
Regarding ALJ Riley’s conclusion that Dr. Diltz’ opinion is
inconsistent with Plaintiff’s activities of daily living (R. 23),
the analysis of daily activities previously set out in the margin
does not discuss the limitations found in the record which
Plaintiff identifies in her brief (Doc. 9 at 11).
With this
failure to acknowledge and analyze probative evidence, the Court
cannot conclude that the inconsistency found by the ALJ is valid.
For all of these reasons, the ALJ’s consideration of Dr.
Diltz’ opinion does not meet the substantial evidence standard and
the Court cannot conclude that the ALJ adequately complied with the
Appeals Council’s directive on the issue.
Because Dr. Diltz’
opinion is consistent with Dr. Fischetto’s opinion and the ALJ’s
analysis relied in part on activities of daily living, further
consideration of the treating and examining source opinions is
required as is a more thorough review of evidence related to
activities of daily living.
Further, because the Court concludes
the ALJ improperly analyzed medical source opinions and activities
of daily living, his conclusions regarding Plaintiff’s RFC and her
ability to engage in full-time work are not supported by
substantial evidence.
Therefore, these aspects of the ALJ’s
decision must also be addressed upon remand.
V. Conclusion
For the reasons discussed above, this matter is remanded for
further consideration.
For the reasons outlined by Plaintiff (Doc.
21
9 at 15), further proceedings are to be EXPEDITED and a decision
made in compliance with this Memorandum is to be rendered as soon
as practicable.
An appropriate Order is filed simultaneously with
this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 26, 2017
22
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