Walz v. Colvin et al
Filing
13
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal is properly granted. This matter is remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 2/7/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TINA MARIE WALZ,
:
:CIVIL ACTION NO. 3:16-CV-1600
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 supplemental security income (“SSI”) under
Title XVI of the Social Security Act (“Act”).
alleged disability beginning on April 7, 2011.
(Doc. 1.)
She
(R. 17.)
The
Administrative Law Judge (“ALJ”) who evaluated the claim, Gerard
Langan, concluded in his October 30, 2014, decision that Plaintiff
had the severe impairments of degenerative disc disease of the
cervical spine, status post lumbar fusion at L4-S1, bilateral
carpal tunnel syndrome, and obesity which ALJ Langan concluded did
not meet or equal a listing when considered alone or in
combination.
(R. 20.)
He also found that Plaintiff had the
residual functional capacity (“RFC”) to perform light work with
certain nonexertional limitations and that she was capable of
performing jobs that existed in significant numbers in the national
economy.
(R. 21-28.)
ALJ Langan therefore found Plaintiff was not
disabled from March 19, 2013, the date the application was filed,
through the date of the decision.
(R. 29.)
Plaintiff alleges the ALJ made the following errors: 1) he
improperly analyzed the medical opinion evidence; 2) he did not
rely on any medical opinion when assessing residual functional
capacity; and 3) he failed to order a consultative examination
and/or failed to appoint a medical expert.
(Doc. 10 at 9.)
After
careful review of the record and the parties’ filings, the Court
concludes this appeal is properly granted.
I. Background
A.
Procedural Background
Plaintiff protectively filed for SSI on March 19, 2013.
17.)
(R.
The claim was initially denied on May 15, 2013, and Plaintiff
filed a request for a hearing before an ALJ on May 22, 2013.
(Id.)
ALJ Langan held a hearing on August 13, 2014, in Wilkes-Barre,
Pennsylvania.
(Id.)
Plaintiff, who was represented by an
attorney, appeared at the hearing as did Vocational Expert (“VE”)
Nadine Henzes.
(Id.)
As noted above, the ALJ issued his
unfavorable decision on October 30, 2014, finding that Plaintiff
was not disabled under the Social Security Act during the relevant
time period.
(R. 29.)
Plaintiff’s request for review of the ALJ’s decision was dated
December 8, 2014.
(R. 7-12.)
The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision on June 7,
2016.
(R. 1-6.)
In doing so, the ALJ’s decision became the
2
decision of the Acting Commissioner.
(R. 1.)
On August 3, 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 October 13, 2016.
(Docs. 8, 9.)
brief on November 7, 2016.
on December 9, 2016.
Plaintiff filed her supporting
(Doc. 10.)
(Doc. 11.)
Defendant filed her brief
With the filing of Plaintiff’s
reply brief (Doc. 12) on December 21, 2016, this matter was fully
briefed and ripe for disposition.
B.
Factual Background
Plaintiff was born on May 13, 1965, and was forty-seven years
old on the date the application was filed.
(R. 28.)
She has a
high school education and past relevant work as an inserting
machine operator and plastic bag assembler.
1.
(R. 27.)
Impairment Evidence1
Plaintiff alleged disability due to back injury, neck
problems, herniated disc, pinched nerves in the back of her left
leg and shoulders, and unsuccessful fusion surgery.
(R. 232.)
The
referenced surgery was a 2003 lumbar fusion from L4-S1. (See R.
27.)
1
The Court focuses on evidence relevant to issues raised in
this appeal, with particular attention paid to the time period at
issue–-March 19, 2013, through October 30, 2014 (R. 29). Pursuant
to the relevant statute, the pertinent review period includes the
twelve months preceding March 19, 2013. 42 U.S.C. § 423(d)(1)(A).
See SSA POMS: DI22505.001, Medical Evidence of Record (MER)
Policies.
3
On March 7, 2012, Plaintiff was seen for follow-up at Summit
Pain Medicine.
(R. 300.)
Plaintiff reported that the caudal
epidural she received in June 2011 had significantly helped her low
back pain.
(Id.)
She also reported that she was having muscle
spasms, the pain in her back (which ranged from 4-10/10) radiated
into her lower extremities bilaterally, she had tingling and
bilateral arm numbness as well as weakness (especially in her right
arm), and she had fairly frequent severe headaches.
(Id.)
Plaintiff said her pain was worst when she had to stand or sit for
any prolonged period of time and it was better when she could lie
down as long as she could reposition frequently.
(Id.)
Physical
examination showed the following: Plaintiff had tenderness to
palpation in the lumbar spine in the midline and over the
paravertebral’s bilaterally; she did not have any neurosensory
deficits in her lower extremities; straight leg raising was
negative bilaterally; her gait was nonantalgic; she had tenderness
over cervical facets on the right at C5, C6 and C7; she had minimal
tenderness over the cervical facets on the left at the same levels;
she had full range of motion of the neck; she had some decreased
sensation in her right upper extremity from her elbow to her two
smallest fingers on her right hand; and her grip strength was equal
bilaterally.
(R. 300-01.)
CRNP Marcia Helfrick assessed chronic
low back pain, failed lumbar laminectomy syndrome, lower extremity
radicular pain, more recent neck pain, and right upper extremity
4
neurosensory deficits and radicular pain.
(R. 301.)
In addition
to prescriptions for Lidoderm patch, Voltaren gel and Tramadol, the
plan was to schedule another caudal epidural steroid injection,
have an MRI of the spine “due to her new neurosensory deficits,”
and follow up after her injection.
(Id.)
At her May 4, 2012, visit, Plaintiff was seen by Timothy
Sempowski, D.O., who recorded Plaintiff said her shot had helped
initially (50% relief for one month) but it was starting to wear
off.
(R. 302.)
Plaintiff also reported that she recently had an
MRI for neck pain but the back pain was worse and she wanted to
address that first.
(Id.)
Physical examination showed no new
findings “that are changed from baseline.”
(Id.)
Office records
indicate the MRI done on March 31, 2012, showed a small broad-based
posterior central disc protrusion at C6-7 with superimposed
degenerative disc disease and facet degeneration as well as
moderate to marked degenerative disc disease at C4-5 and C5-6.
(R.
303.)
In June 2012, Plaintiff reported continuing pain, and repeat
injections were planned.
(R. 305.)
Dr. Sempowski noted that if
Plaintiff again experienced only temporary benefit, he would
recommend evaluation by Dr. Eva Malinowksi to discuss possible
dorsal column stimulator trial for treatment of her chronic
radiculopathy secondary to postlaminectomy syndrome.
(Id.)
In July Plaintiff was seen at Summit Pain Medicine by Dr.
5
Malinowski.
(R. 307-08.)
Plaintiff reported that her pain was
constant and ranged fron 9-10/10 with daily living activites, and
she had intermittent weakness and numbness.
(R. 306.)
Physical
examination showed that she ambulated “sparing her left lower
extremity,” her range of motion of the left lumbosacral region was
diminished, and she had no significant new changes from the
previous examination.
(R. 307.)
The plan was to continue
Plaintiff on her current treatment and add Percocet twice daily and
a neurotransmitter, Neurontin, three times a day.
(R. 307.)
At her September 2012 visit to Summit Pain Medicine, Plaintiff
was seen by Amanpreet Sandhu, M.D.
(R. 308-10.)
She reported
worsening neck pain radiating down bilateral upper extremities as
well as numbness and weakness of bilateral upper extremities with
symptoms worse on the right hand.
(R. 308.)
Plaintiff also said
her pain interfered with her sleep, activities of daily living, and
social functioning.
(Id.)
Physical exam was basically normal
except lumbar flexion and extension caused pain.
(R. 309.)
Dr.
Sandhu recorded the following plan: possible cervical epidural
steroid injection for neck pain and upper extremity numbness and
weakness; referral to Wellspan neurosurgery for possible surgical
treatment of moderate to severe cervical spinal stenosis; referral
to orthopedic surgery for carpal tunnel release; adjust her
medication regimen; and for lower back radiating pain repeat
injections, medial branch blocks would be considered as well as
6
consideration for radiofrequency ablation in the future.
Dr. Sandhu’s October plan was similar.
(R. 313.)
(R. 310.)
He noted that
Plaintiff’s low back pain was mostly secondary to failed back
surgery syndrome and lumbar spondylosis.
included spinal stenosis.
(Id.)
His diagnoses
(Id.)
In November 2012, Dr. Sandhu noted that Plaintiff had left
lumbosacral medial branch blocks from L3-L5 and had greater than
80% relief of her left-sided low back pain lasting about one day.
(R. 314.)
He added that the neurosurgery clinic had recommended
surgery for cervical stenosis and bilateral upper extremity
numbness and weakness.
(Id.)
Despite reports of continuing pain
that interfered with her sleep, activities of daily living and
social functioning, Dr. Sandhu recorded that Plaintiff “noted
significant improvement in her quality of life as well as her
ability to function socially and taking care of her young
daughter.”
(Id.)
Her phsyical exam showed a normal gait, 2+ deep
tendon reflexes bilaterally in the upper and lower extremities,
single leg raise test negative bilaterally, Faber negative
bilaterally, no SI tenderness bilaterally, no midline or bilateral
tenderness of the lumbosacral spine, lumbar flexion and extension
caused pain, and facet loading was strongly positive bilaterally,
left greater than right.
(R. 315.)
In his plan, Dr. Sandhu
commented “[s]ince the patient has greater than 80% relief of her
left-sided low back pain after her left lumbosacral medial branch
7
blocks we will schedule the patient for left lumbosacral medial
radiofrequency ablation for levels above the fusion.”
(R. 316.)
In February 2013, Dr. Sandhu noted that Plaintiff had had the
radiofrequency ablation since her last visit and reported good
relief but she also reported worsening pain and symptoms since
then.
(R. 317.)
Dr. Sandhu again noted reports of continuing pain
that interfered with sleep, activities of daily living and social
functioning, and also recorded that Plaintiff “noted significant
improvement in her quality of life as well as her ability to
function socially and taking care of her young daughter.”
(Id.)
Physical examination showed the following: sensory soft touch
decreased in the left lower extremity; antalgic gait; deep tendon
reflexes 1+ bilaterally upper and lower extremities; leg raise
negative on the right and positive on the left; Faber strongly
positive on the left and mildly positive on the right; left greater
than right SI tenderness bilaterally; muscle tenderness of the
lumbosacral spine; lumbar flexion and extension caused pain; and
facet loading strongly positive on the right and mildly positive on
the left.
(R. 318.)
In addition to a review of Plaintiff’s
medications, Dr. Sandhu provided the following summary of
Plaintiff’s status:
Currently the patient has significant
pain originating in her left lower back and
buttock and radiating down her left lower
extremity all the way down to her left foot
along with left leg weakness and numbness.
This pain is likely secondary to combination
8
of sacroiliitis as well as left lumbar
radicuopathy secondary to degenerative disc
disease and postlaminectomy syndrome. We
will obtain an MRI of her lumbosacral spine
with contrast in order to further elucidate
the etiology of her left lower extremity pain
as well as worsening numbness and weakness.
The patient [may] also be candidate for left
sacroiliac joint steroid injections as well
as left transforaminal epidural injections at
L3 through S1 versus interlaminar ESI. We
will also refer the patient to neurosurgery
at Wellspan for further evaluation of her
symptoms. The patient was recommended
surgery for her neck however her left lower
extremity and back symptoms are worse at this
time and she wants to hold off on cervical
surgery for now.
(R. 319.)
Plaintiff had an initial evaluation at The Reading Neck &
Spine Center on June 17, 2013, conducted by Yong Park, M.D.
402-03.)
(R.
He recorded that Plaintiff was self-referred after
previously treating at Summit Pain Management where she had several
epidural injections using multiple approaches, a median branch
block, and a radiofrequency ablation, and she denied relief from
these procedures.
(R. 402.)
Plaintiff rated the intensity of her
radiating back pain as 10/10 and intermittent; she rated her
radiating neck pain as 5-9/10.
(Id.)
Examination showed the
following: cervical range of motion 40 degrees rotation to the
right and 30 to the left, full flexion, extension 10 degrees, pain
provoked primarily with bilateral rotation and extension; lumbar
spine flexion of 15 degrees and 0 degrees extension, single leg
raise positive bilaterally, and Patrick’s test negative
9
bilaterally; sensory examination diminished on the right from C4 to
S1; MMT shows trace weakness in the right upper extremity in all
major muscle groups, left side intact; reflexes absent in both the
upper and lower extremities and symmetric; and Hoffman’s negative.
(R. 403.)
Dr. Park’s impression was complex pain syndrome.
(Id.)
He noted that it was difficult to determine where the pain was
coming from, the cervical MRI showed multilevel disc protrusions
and a small central protrusion in the lumbar spine at L5-S1.
(Id.)
Dr. Park planned to repeat the upper extremity EMG and renew pain
medication prescriptions.
(Id.)
The August 29, 2013, Electrodiagnostic Report showed mild
chronic right median neuropathy at the wrist but no cervical
radiculopathies.
(R. 401.)
Dr. Park renewed Plaintiff’s pain
medications, prescribed a wrist splint, and scheduled a cervical
epidural injection at the C6-7 level.
CRNP Robert Davis of the Neck & Spine Center saw Plaintiff on
Novmeber 4, 2013.
(R. 399-400.)
and 9/10 left leg pain.
Plaintiff reported 8/10 back pain
(R. 399.)
Examination showed the
following: midline tenderness over L4; antalgic gait, wide and
unsteady; seated SLR examination positive on left at 60 degrees and
negative on right; motor examination 3/5 muscle strength over left
hip flexors, left knee flexors and extensors and left ankle flexors
and extensors; sensation decreased to light touch over the left
lateral thigh, left anterior thigh and left lateral calf; and
10
expressed hypersensitivity with palpation over left lateral calf.
(Id.)
The disagnosis was postlaminectomy syndrome with low back
pain and lumbar radiculopathy.
(Id.)
The plan was to obtain MRI
of the lumbar spine, after which Plaintiff would return to the
office to discuss therapeutic options.
(Id.)
MRI of the cervical spine performed on July 18, 2014, showed:
1. There has been some development of
reactive discogenic endplate signal changes
and edema at C6-C7 compared with 3/30/2012.
There is a small stable mild posterior
central broad-based disc protrusion,
superimposed moderate annular bulging and
spondylosis changes again resulting in
moderate to marked canal stenosis and
progression of bilateral neuroforaminal
narrowing at this level.
2. Stable moderate posterior disc
protrusions and slightly progressed
spondylosis changes at C4-C5 and C5-C6
resulting in progression of moderate canal
stenosis at C4-C5 and moderate to marked
canal stenosis C5-C6. There has been some
progression of marked bilateral
neuroforaminal narrowing at these levels as
well.
3. Stable annular bulging with slightly
increased spondylosis changes at C3-C4
resulting in slightly progressed mild canal
and now bilateral neuroforaminal narrowing at
this level. No other evidence for frank
cervical disc herniation, other areas of
high-grade canal stenosis or definite acute
marrow signal abnormality.
4. Stable, unremarkable appearance of the
cervical spinal cord.
(R. 408.)
11
2.
Opinion Evidence
There is no opinion evidence during the relevant time period.
An opinion issued in conjunction with a previous application for
benefits by Robert J. Balogh, Jr., M.D., a state agency medical
consultant, on July 7, 2011, was reviewed by ALJ Langan in the
current decision.
(R. 27.)
After noting that Dr. Balogh opined
that Plaintiff retained the residual functional capacity for a full
range of light exertional work, ALJ Langan concluded the opinion
should be given “some weight” but the evidence as a whole,
including that received after the opinion was rendered, supported
greater limitations at the light exertional level. (Id.)
3.
Hearing Testimony
At the hearing held on August 13, 2014, Plaintiff testified
that she was unable to work because of pain in her lower back and
down her left leg as well as pain in her neck.
(R. 45.)
She noted
that doctors discussed fusion surgery for her neck but she had not
decided yet whether to have it done.
(R. 45-56.)
Plaintiff added
that the neck pain travels to her shoulders, arms and hands, and
her hands get numb and she drops things and has a hard time doing
things like buttoning.
(R. 46, 48-49.)
Plaintiff also explained
that she can only sit or stand for about fifteen minutes at a time
because her back, left hip and leg cramp up and she has to change
positions.
(R. 46-47.)
When asked if she thought there was any
job she could do, Plaintiff responded that she did not think so
12
because she was unable to stand, could not sit for too long, could
not lift things, and could not walk or carry anything.
(R. 58.)
By way of background, Plaintiff said she had back surgery in
2003 and had problems right after the surgery which improved
through time but had gotten increasingly worse since 2010.
53.)
(R.
She also said the pain in her neck started in about 2010.
(R. 55.)
Plaintiff testified that her only income was child support and
she lived with her six-year-old daughter in an apartment subsidized
under Section Eight.
(R. 41, 57-58.)
After testifying that a hypothetical individual with
Plaintiff’s age, education and work experience and certain nonexertional limitations could not perform Plaintiff’s past relevant
work but could perform other positions, the VE was asked to
consider a hypothetical individual with Plaintiff’s age, education
and work experience who was capable of performing light work with
the following limitations: she could never climb ropes, ladders, or
scaffolds; she could occasionally climb ramps and stairs; she was
capable of no more than occasional use of the left lower extremity
for operation of foot controls and pedals; she should avoid
concentrated exposure to extreme cold temperatures and wetness; she
required the ability to alternate between sitting and standing
every thirty minutes; she was capable of no more than occasional
use of her bilateral upper extremities for fine manipulation but no
13
limitation with respect to the use of bilateral upper extremities
for gross handling.
(R. 62-63.)
VE Henzes responded that such an
individual would be capable of working as an information clerk, a
folder, and a tagger.
4.
(R. 64.)
ALJ Decision
As noted above, ALJ Langan issued his Decision on October 30,
2014.
(R. 17-29.)
He made the following Findings of Fact and
Conclusions of Law:
1.
The claimant has not engaged in
substantial gainful activity since March
19, 2013, the application date (20 CFR
416.971 et seq.).
2.
The claimant has the following severe
combination of impairments: degenerative
disc disease of the cervical spine;
status post lumbar fusion at L4-S1;
bilateral carpal tunnel syndrome (CTS);
and obesity (20 CFR 416.920(c)).
3.
The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
4.
After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 416.967(b)
being further limited as follows: the
claimant should avoid concentrated
exposure to unprotected heights and
moving machinery. She should never
climb ropes, ladders or scaffolds but
can occasionally climb ramps and stairs.
She may occasionally use the left lower
extremity for operation of foot
14
controls. Claimant should avoid
concentrated exposure to extreme cold
temperatures and wetness. Claimant
would require the ability to alternate
between sitting and standing every 30
minutes. She may occasionally use the
bilateral upper extremities for fine
manipulation but has no limitations for
gross handling.
5.
The claimant is unable to perform any
past relevant work (20 CFR 416.965).
6.
The claimant was born on May 13, 1965
and was 47 years old, which is defined
as a younger individual age 18-49, on
the date the application was filed (20
CFR 416.963).
7.
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 416.964).
8.
Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 416.968).
9.
Consideration the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
10.
The claimant has not been under a
disability, as defined in the Social
Security Act, since March 19, 2013, the
date the application was filed (20 CFR
416.920(g)).
(R. 19-29.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
15
determine whether a claimant is disabled.2
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
2
“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).
16
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. 28-29.)
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).
17
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
18
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,
19
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).
IV. Discussion
Plaintiff asserts that the Acting Commissioner’s decision
should be remanded for the following reasons: 1) the ALJ improperly
analyzed the medical opinion evidence; 2) the ALJ did not rely on
any medical opinion when assessing residual functional capacity;
and 3) the ALJ failed to order a consultative examination and/or
failed to appoint a medical expert.
(Doc. 10 at 9.)
Plaintiff
asks the Court to remand the case with instructions to request a
consultative examination and/or obtain additional medical opinions,
reassess Plaintiff’s RFC, and issue a new decision based on
substantial evidence and proper legal standards.
20
(Doc. 10 at 22.)
Plaintiff’s first two alleged errors basically argue the RFC is not
supported by substantial evidence and, therefore, the Court will
analyze them together.
A.
Residual Functional Capacity
Plaintiff argues that ALJ Langan erred in attributing “some
weight” to Dr. Balogh’s opinion and improperly did not rely on any
medical opinion when assessing Plaintiff’s RFC.
19.)
(Doc. 10 at 10-
Defendant responds that ALJ Langan reasonably assigned some
weight to Dr. Balogh’s opinion and he was not required to base his
RFC on a medical opinion.
(Doc. 12 at 8-18.)
The Court concludes
that ALJ Langan did not provide adequate explanation for his RFC
assessment for the Court to determine whether it is based on
substantial evidence.
Assuming arguendo that the ALJ could attribute “some weight”
to a state agency consultant’s opinion which was issued almost one
year before the relevant time period identified above, that weight
should be minimal because the record clearly indicates that
Plaintiff’s condition worsened after Dr. Balogh issued his opinion.
As discussed in Batdorf v. Colvin, Civ. A. No. 3:16-CV-409, 2016 WL
4493356, at *9-10 (M.D. Pa. Aug. 26, 2016) (citing Grimes v.
Colvin, Civ. A. No. 15-113E, 2016 WL 246963, at *2 (W.D. Pa. Jan.
21, 2016)), reliance on an opinion which predates evidence
indicating a new or deteriorating condition is problematic.
While
ALJ Langan does not explicitly acknowledge deterioration in his
21
analysis of Dr. Balogh’s opinion, he inferentially does so in his
recognition that the record “supports greater limitations” than
those found by Dr. Balogh.
(R. 27.)
Further, because ALJ Langan
does not explain what “some weight” means, the Court cannot
meaningfully review his limited analysis and cannot consider the
opinion supportive of the ALJ’s RFC findings.
This conclusion leads to the question raised with Plaintiff’s
second claimed error–-whether, in the absence of any opinion
evidence, the ALJ’s RFC ia supported by substantial evidence.
Plaintiff avers that an ALJ “cannot speculate as to a claimant’s
RFC but must have medical evidence, and generally a medical
opinion, regarding the functional capabilities of the claimant
supporting his determination.”
(Doc. 10 at 16 (listing cases).)
Defendant responds that the Third Circuit has recognized that
“‘[t]here is no legal requirement that a physician have made the
particular findings that an ALJ adopts in the course of determining
an RFC,’” (Doc. 11 at 12 (quoting
Titterington v. Barnhart, 174 F.
App’x 6, 11 (3d Cir. 2006) (not precedential)), and that “the ALJ
is not required to seek a separate medical opinion when assessing
the claimant’s RFC” (id. (citing Mays v. Barnhart, 78 F. App’x 808,
813 (3d Cir. 2003) (not precedential)).
Mays focused on fundamental requirements regarding an ALJ’s
RFC assessment: the ALJ’s RFC determination must be based on
medical evidence in the record, 78 F. App’x at 812 (citing 20
22
C.F.R. § 404.1545(a)(3)); and the ALJ “must provide ‘a clear and
satisfactory explication’ of the basis on which the determination
rests,” id. (quoting Cotter, 642 F.2d at 704).
While the Court agrees that a residual functional capacity
assessment need not be based on a medical opinion, see McCurdy v.
Colvin, Civ. A. No. 3:15-CV-2436, 2016 WL 4077268, at *11 n.3 (M.D.
Pa. Aug. 1, 2016), general evidentiary principles and the cases
cited by Defendant support the proposition that medical evidence in
the record must be sufficient to support the ALJ’s determination
and the ALJ must adequately explain the basis for the assessment.
Titterington, 174 F. App’x at 11; Mays, 78 F. App’x at 812-13.
Importantly, it is beyond the province of an ALJ to engage in
speculation and make medical judgments on his own in the absence of
record support.
Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.
1983) (citing Gober v. Matthews, 574 F.2d 772 (3d Cir. 1978);
Schaaf v. Matthews, 574 F.2d 157 (3d Cir. 1978)).
Before summarizing the evidence of record, ALJ Langan
concluded that
[o]bjective findings on clinical physical
examinations and in diagnostic testing and
the claimant’s own self-reported level of
daily functioning fail to confirm the
presence of an impairment or combination of
impairments which could reasonably be
expected to produce the alleged degree of
symptomatology and functional limitations or
support a finding of complete disability.
(R. 23.)
After summarizing the medical evidence and assigning
23
“some weight” to Dr. Balogh’s opinion, the ALJ stated that
[t]he claimant appeared for a hearing. She
described back pain, neck pain and hand
numbness. She stood at times during the
hearing. She previously underwent a lumbar
fusion from L4-S1 in 2003. The claimant
states that she continued to experience low
back pain. She has since developed neck
pain. The claimant’s cervical MRI has
remained stable and an EMG performed in
August 2013 showed mild bilateral carpal
tunnel syndrome but no cervical
radiculopathy.
(R. 27.)
ALJ Langan then explained his RFC determination as
follows:
After reviewing all of the evidence, the
undersigned concludes that the claimant has
the residual functional capacity to perform
at a range [of] light exertional work further
limited as described above. The above
residual functional capacity assessment is
supported by and consistent with objective
medical evidence including diagnostic testing
and measurable findings in clinical
examination. The claimant’s complaints are
supported somewhat by the objective evidence
of record, but not to the extent as alleged
by claimant. Exertional, postural,
manipulative, and environmental limitations
have been included to address the wellsupported objective deficits of record. The
above residual functional capacity is also
consistent with the claimant’s activity level
as indicated. The objective evidence does
not support a finding that the claimant is
more severely impaired than stated above. In
light of the evidence of record, the above
residual functional capacity gives the
claimant the benefit of the doubt but still
does not preclude her from performing other
work.
(R. 27.)
24
These excerpts from ALJ Langan’s decision illustrate the
problem the Court faces in determining whether his RFC is supported
by substantial evidence.
First, aside from the general conclusory
nature of the assessment, the ALJ’s statement that “[t]he
claimant’s cervical MRI has remained stable” (R. 27) contradicts
the record (R. 408) and the ALJ’s summary of that evidence (R. 24):
as set out in the background section of this Memorandum, the July
2014 cervical MRI was specifically compared with a March 2012 study
and numerous changes were noted.
(See R. 408.)
Second, absent additional explanation by the ALJ or more
direct medical evidence, the Court cannot conclude that the ALJ’s
determination that Plaintiff “may occasionally use the left lower
extremity for operation of foot controls” is consistent with
objective evidence that Plaintiff’s most recent examinations showed
a positive single-leg test on the left (R. 399, 403), absent lower
extremity reflexes (R. 403), diminished muscle strength over the
left hip flexors, left knee flexors and extensors, and left ankle
flexors and extensors (R. 399), and decreased sensation to light
touch over the left lateral thigh, left anterior thigh and left
lateral calf (id.).
Given these objectively verified limitations
and the lack of explanation in the ALJ’s analysis, the Court cannot
conclude a reasonable factfinder would agree with ALJ Langan that
Plaintiff could reliably be counted on to use his left lower
extremity to operate foot controls up to one-third of the time as
25
contemplated by the term “occasionally” in the Social Security
context, SSR 96-9p, 2016 WL 374185 (July 2, 1996).
Richardson, 402
U.S. at 401; Titterington, 174 F. App’x at 11; Cotter, 642 F.2d at
704.
A similar question arises as to whether a reasonable
factfinder would find the ALJ’s conclusion that Plaintiff could
“occasionally use the bilateral upper extremities for fine
manipulation but has no limitation for gross handling” (R. 21) (and
no additional limitations related to upper extremities) is
supported by substantial evidence when objective examination showed
cervical spine range of motion of thirty to forty degrees and
extension of ten degrees (R. 401, 403)3, manual muscle testing
which at times showed trace weakness in the right upper extremity
in all muscle groups (R. 403), reflexes absent or trace in the
upper extremities symmetrically (R. 401, 403), and sensory
examination diminished on the right from C4 to S1 (R. 403).
As
with the ALJ’s lower extremity limitations, given the analysis set
out in the decision and a review of the evidence of record from a
chronological perspective, the Court cannot conclude that this
aspect of the RFC is supported by substantial evidence.
In both
instances it appears that ALJ Langan engaged in improper
3
Normal flexion is eighty to ninety degrees, and normal
extension is seventy degrees. http://boneandspine.com/rangecercial-spine.
26
speculation and made medical judgments on his own in the absence of
record support.
See Kent, 710 F.2d at 115.
In concluding that remand is warranted for further assessment
of Plaintiff’s RFC, the Court is cognizant of Plaintiff’s duty to
develop the record and the lack of evidence highlighted in
Defendant’s brief (Doc. 11 at 17).
As the Court’s review of
evidence set out above shows, the record indicates that Plaintiff
was seen at the Neck & Spine Center in November 2013 (R. 399-400)
and from then until the October 30, 2014, Decision date, the only
medical record is the July 2014 cervical MRI report (R. 408).
In considering this evidentiary gap, the Court must keep in
mind that, given the remedial nature of the Social Security Act,
the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence, and“courts have
mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed,” Dobrowolsky, 606 F.2d at 406.
Importantly,
the lack of evidence for a certain time period noted by Defendant
(Doc. 11 at 17) cannot be deemed supportive of the ALJ’s findings
because it was not discussed by the ALJ himself.4
4
It is the ALJ’s
The Court’s review of the record indicates that ALJ Langan
did not explore this alleged deficit at the August 13, 2014,
hearing or by any other means. This is significant because an ALJ
may only draw inferences related to a claimant’s lack of treatment
or conservative treatment after he first considers “any
explanations that the individual may provide, or other information
in the case record, that may explain infrequent or irregular
27
responsibility to explicitly provide reasons for his decision;
analysis later provided by Defendant cannot make up for the
analysis lacking in the ALJ’s decision.
Fargnoli v. Massanari, 247
F.3d 34, 42 (3d Cir. 2001); Dobrowolsky, 606 F.2d at 406-07.
Therefore, gaps in the record before the Court do not alter the
conclusion that remand is warranted.
B.
Development of the Record
Plaintiff argues that the ALJ did not adequately develop the
record: because “the evidence as a whole” was insufficient, the ALJ
was required to order a consultative examination pursuant to 20
C.F.R. § 404.1519a(b) or he could have obtained an updated opinion
regarding Plaintiff’s RFC pursuant to HALLEX I-2-5-34(A)(2).5
(Doc. 10 at 21.)
Defendant responds that no further development of
the record was necessary because the burden of proof rests with the
claimant, not the ALJ.
(Doc. 11 at 19.)
Because the Court has
found that remand is required for the reasons outlined above, only
medical visits or failure to seek medical treatment.” SSR 96-7p,
1996 WL 374186, at *7-8; Grissinger v. Colvin, Civ. A. No. 15-202,
2016 WL 5919937, at *3 (W.D. Pa. Oct. 11, 2016) (listing cases).
5
Plaintiff cites HALLEX 1-2-5-34(A)(2) for the proposition
that “[a]n ALJ may need to obtain an ME opinion . . . when the ALJ
. . . [i]s determining the claimant’s residual functional
limitations and abilities as established by the medical evidence of
record” and notes that “[t]he HALLEX is binding on all adjudicators
at all levels of administrative review.” (Doc. 10 at 21 & n.5
(citing SSR 13-2p; quoting HALLEX I-2-5-34(A)(2)).)
28
limited discussion of this claimed error is warranted.
Although the duty to assist the claimant and develop the
record is well established, the duty is not unlimited.
The
requirement does not necessarily come into play where “there was
sufficient evidence in the medical records for the ALJ to make her
decision.”
Moody v. Barnhart, 114 F. App’x 495, 501 (3d Cir. 2004)
(not precedential); see also Griffin v. Commissioner of Social
Security, 303 F. App’x 886, 890 n.5 (3d Cir. 2009) (not
precedential).
If the record is inadequate for proper evaluation
of the evidence, the ALJ’s duty to develop the record is triggered.
See, e.g., Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).
Development of the record may include a consultative
examination.
The relevant regulation provides that such an
examination may be required in certain situations such as when
there is a need to resolve an inconsistency in the evidence or when
the evidence as a whole is insufficient to allow a determination to
be made on the claim.
20 C.F.R. § 404.1519a(b)(4).
By way of
example, the regulation states that a consultative examination
might be purchased to secure needed medical evidence in the
following situations: 1) when additional evidence needed is not
contained in the records of the medical sources; 2) evidence that
may have been available from medical sources cannot be obtained for
reasons beyond the claimant’s control; 3) highly specialized or
technical evidence is needed and is not available from medical
29
sources; and 4) there is an indication of a change in the
claimant’s condition that is likely to affect the ability to work,
but the current severity of the claimant’s impairment is not
established.
20 C.F.R. § 404.1519a(b)(4).
As the discussion in the preceding section of this Memorandum
indicates, the ALJ’s RFC assessment is deficient.
Because one
noted deficiency is that ALJ Langan appears to have engaged in
improper speculation and made medical judgments on his own in the
absence of record support, this may be a case where more
information is required for an adequate determination to be made.
Thus, because the record may be inadequate for proper evaluation of
Plaintiff’s RFC, the ALJ’s duty to develop the record is likely
triggered in this case and the issue must be addressed upon remand.
V. Conclusion
For the reasons discussed above, the Court concludes
Plaintiff’s appeal is properly granted.
This matter is remanded to
the Acting Commissioner for further consideration consistent with
this opinion.
An appropriate Order is filed simultaneously with
this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: February 7, 2017
30
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