LASHER v. COLVIN
Filing
15
ORDER granting 11 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment, and the case is remanded for further evaluation in light of this Order. Signed by Judge Alan N. Bloch on 12/30/2015. (dpo)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN ELAINE LASHER,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
Civil Action No. 15-26-E
O R D E R
AND NOW, this 30th day of December, 2015, upon
consideration of Defendant’s Motion for Summary Judgment (Doc.
No. 13) filed in the above-captioned matter on July 27, 2015,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for
Summary Judgment (Doc. No. 11) filed in the above-captioned
matter on June 18, 2015,
IT IS HEREBY ORDERED that said Motion is GRANTED.
Accordingly, this matter is hereby remanded to the Commissioner
of Social Security (“Commissioner”) for further evaluation under
sentence four of 42 U.S.C. § 405(g) in light of this Order.
I.
Background
Plaintiff Susan Elaine Lasher filed a claim for Disability
Insurance Benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. §§ 401-434, proactively effective to May
1
1, 2012, claiming that she became disabled on May 1, 2010,1 due
to bipolar disorder, high cholesterol, depression, migraines,
and sleep deprivation.
(R. 13, 138-46, 190).
On October 1,
2012, she also filed a claim for Supplemental Security Income
under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f.
(R. 147-
77).
After being denied initially on June 14, 2012, Plaintiff
sought, and obtained, a hearing before an Administrative Law
Judge (“ALJ”) on August 23, 2013.
(R. 87-96, 100-01, 31-58).
In a decision dated September 16, 2013, the ALJ denied
Plaintiff’s request for benefits.
(R. 13-26).
The Appeals
Council declined to review the ALJ’s decision on November 20,
2014.
(R. 1-8).
Plaintiff filed a timely appeal with this
Court, and the parties have filed cross-motions for summary
judgment.
II.
Standard of Review
Judicial review of a social security case is based upon the
pleadings and the transcript of the record.
405(g).
See 42 U.S.C. §
The scope of review is limited to determining whether
the Commissioner applied the correct legal standards and whether
1
Plaintiff’s counsel later requested that her prior Social
Security claims, which had been denied at the initial
application level on November 1, 2011, be reopened. While it is
not entirely clear from the record whether this occurred, at the
hearing, Plaintiff’s claim was construed so as to allege
disability beginning December 31, 2008. (R. 242, 13). The
matter should be clarified on remand.
2
the record, as a whole, contains substantial evidence to support
the Commissioner's findings of fact.
See Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001) (“[t]he findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive” (quoting 42 U.S.C. §
405(g))); Schaudeck v. Commissioner of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999) (noting that the court has plenary
review of all legal issues, and reviews the administrative law
judge's findings of fact to determine whether they are supported
by substantial evidence).
“Substantial evidence” is defined as “more than a mere
scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate” to support a conclusion.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Plummer v.
However, a “single
piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence.”
Morales v. Apfel, 225 F.3d
310, 317 (3d Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d
110, 114 (3d Cir. 1983)).
“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.”
Id.
A disability is established when the claimant can
demonstrate some medically determinable basis for an impairment
3
that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period.
See
Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).
“A
claimant is considered unable to engage in any substantial
gainful activity ‘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 ....’”
Id. at
39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration (“SSA”) has promulgated
regulations incorporating a five-step sequential evaluation
process for determining whether a claimant is under a disability
as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.
In
Step One, the Commissioner must determine whether the claimant
is currently engaging in substantial gainful activity.
C.F.R. §§ 404.1520(b), 416.920(b).
will be denied.
See 20
If so, the disability claim
See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
If not, the second step of the process is to determine whether
the claimant is suffering from a severe impairment.
C.F.R. §§ 404.1520(c), 416.920(c).
See 20
“An impairment or
combination of impairments is not severe if it does not
significantly limit [the claimant’s] physical or mental ability
to do basic work activities.”
20 C.F.R. §§ 404.1521(a),
4
416.921(a).
If the claimant fails to show that his or her
impairments are “severe," he or she is ineligible for disability
benefits.
If the claimant does have a severe impairment,
however, the Commissioner must proceed to Step Three and
determine whether the claimant’s impairment meets or equals the
criteria for a listed impairment.
416.920(d).
See 20 C.F.R. §§ 404.1520(d),
If a claimant meets a listing, a finding of
disability is automatically directed.
If the claimant does not
meet a listing, the analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity (“RFC”) to perform his
or her past relevant work.
416.920(e).
See 20 C.F.R. §§ 404.1520(e),
The claimant bears the burden of demonstrating an
inability to return to his or her past relevant work.
Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
See
If the
claimant is unable to resume his or her former occupation, the
evaluation moves to the fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable
of performing other available work in the national economy in
order to deny a claim of disability.
404.1520(g), 416.920(g).
See 20 C.F.R. §§
In making this determination, the ALJ
should consider the claimant’s RFC, age, education, and past
work experience.
See id.
The ALJ must further analyze the
5
cumulative effect of all the claimant’s impairments in
determining whether he or she is capable of performing work and
is not disabled.
See 20 C.F.R. §§ 404.1523, 416.923.
III. The ALJ's Decision
In the present case, the ALJ found that Plaintiff met the
insured requirements of the Social Security Act through December
31, 2014.
(R. 15).
Accordingly, to be eligible for DIB
benefits, Plaintiff had to establish that she was disabled on or
before that date.
See 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B); 20
C.F.R. §§ 404.101, .110, .131.
The ALJ then proceeded to apply the sequential evaluation
process when reviewing Plaintiff’s claims for benefits.
In
particular, the ALJ found that Plaintiff had not been engaged in
substantial gainful activity since December 31, 2008, the
alleged onset of disability.
(R. 15).
The ALJ also found that
Plaintiff met the second requirement of the process insofar as
she had several severe impairments, specifically, left wrist
carpal tunnel syndrome and ganglion cyst; obesity; intrinsic
sphincter deficiency with incontinence; migraine headaches;
osteopenia; insomnia; learning disability; and major depressive
disorder.2
He further found that Plaintiff’s alleged
2
The ALJ further noted that, although Plaintiff had not been
diagnosed with an anxiety disorder, he considered the reported
anxiety symptoms as a component of Plaintiff’s depression and
accommodated them. While Plaintiff argues that the ALJ is
6
hypermetropia, astigmatism, presbyopia, narrow angle vision,
nuclear sclerosis, optic atrophy, sinusitis, and kidney stones
did not constitute severe impairments.
(R. 15-16).
The ALJ
concluded that Plaintiff’s impairments did not meet any of the
listings that would satisfy Step Three.
(R. 16-19).
The ALJ found that Plaintiff retained the RFC to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b), except that she is limited to never climbing a
ladder, rope, or scaffold, and to only occasionally climbing
ramps and stairs; that she is limited to only occasional
balancing, stooping, kneeling, crouching, or crawling; that she
is limited to frequent feeling with the non-dominant hand, but
with no other manipulative limitations; that she must avoid
concentrated exposure to vibration; that she must avoid all
exposure to unprotected heights, dangerous machinery, and like
workplace hazards; that she is limited to understanding,
remembering, and carrying out simple instructions and performing
simple, routine tasks; that she is limited to no work-related
contact with the public, only occasional and superficial
interaction with co-workers, and no more than occasional
supervision; and that she is limited to a low stress work
environment, which means no production rate pace work, but
incorrect that she was not diagnosed with an anxiety disorder,
the issue is ultimately not relevant to the Court’s holding.
7
rather, goal oriented work, with only occasional and routine
change in the work setting.
(R. 19-24).
Based on this RFC,
Plaintiff established that she is incapable of returning to her
past employment; therefore, the ALJ moved on to Step Five.
24).
(R.
The ALJ then used a vocational expert (“VE”) to determine
whether or not there were a significant number of jobs in the
national economy that Plaintiff could perform.
The VE testified
that, based on Plaintiff’s age, education, past relevant work
experience, and RFC, Plaintiff could perform jobs that exist in
significant numbers in the national economy, including packer,
mail clerk, and office helper. (R. 25, 55).
ALJ found that Plaintiff was not disabled.
IV.
Accordingly, the
(R. 25-26).
Legal Analysis
Plaintiff argues that the ALJ’s mental RFC finding is
insufficient because he failed to properly evaluate the medical
and nonmedical evidence.
While the Court does not necessarily
fully agree with Plaintiff’s assertions, it does agree that
further discussion is needed in regard to the ALJ’s RFC finding,
specifically in regard to the weight afforded to the opinion of
Plaintiff’s treating psychiatrist.
Accordingly, the Court finds
that substantial evidence does not support the ALJ’s decision,
and it will remand the case for further consideration.
8
On October 23, 2012, Plaintiff’s treating psychiatrist,
Asha Prabhu, M.D., prepared a psychiatric/psychological
impairment questionaire, wherein she offered her opinion as to
Plaintiff’s occupational limitations.
(R. 496-503).
As part of
this opinion, she found that Plaintiff was markedly limited in
her ability to maintain attention and concentration for extended
periods and her ability to complete a normal workweek without
interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length
of rest periods.
She further opined that Plaintiff would likely
be absent from work about 2-3 times per month as a result of her
impairments.
(R. 499-500, 503).
While, overall, the ALJ gave
some weight to Dr. Prabhu’s opinion, he rejected the opinions
set forth above, finding them to be overestimates of Plaintiff’s
limitations, and did not expressly include them in Plaintiff’s
RFC.3
(R. 23).
While the ALJ gave several reasons for doing so,
3
RFC is defined as “that which an individual is still able
to do despite the limitations caused by his or her
impairment(s).” Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.
2001). See also 20 C.F.R. §§ 404.1545(a), 416.945(a). Not only
must an ALJ consider all relevant evidence in determining an
individual’s RFC, the RFC finding “must ‘be accompanied by a
clear and satisfactory explication of the basis on which it
rests.’” Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981)). “‘[A]n examiner’s findings
should be as comprehensive and analytical as feasible and, where
appropriate, should include a statement of subordinate factual
foundations on which ultimate factual conclusions are based, so
that a reviewing court may know the basis for the decision.’”
Id. (quoting Cotter, 642 F.2d at 705). See also S.S.R. 96-8p,
9
one was that the limitations discussed above were inconsistent
with Dr. Prabhu’s prognosis of Plaintiff’s condition as “fair to
good.”
(Id.).
Unfortunately, the ALJ appears to have misread
the record in making this determination.
As Plaintiff points out, Dr. Prabhu’s prognosis appears not
to state “fair to good,” but rather “fair to poor.”
(R. 496).
To be sure, it is not easy to read the handwriting, but the
Court agrees with Plaintiff that Dr. Prabhu appears to have
written “poor” rather than “good.”4
While this is clearly a good
faith mistake, the fact remains that an ALJ “‘cannot reject
evidence for no reason or for the wrong reason.’”
Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999)).
Although, as noted,
the ALJ’s belief that Dr. Prabhu’s prognosis that Plaintiff’s
condition was fair to good was only part of his analysis, it was
important enough to be discussed as a stated reason for
rejecting certain of Dr. Prabhu’s opinions.
The Court cannot
assume that the correct reading of the prognosis would not
change how the ALJ would review Dr. Prabhu’s rejected opinions,
1996 WL 374184 (S.S.A.), at *7 (“The RFC assessment must include
a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities,
observations).”).
4
At the very least, additional clarification from Dr. Prabhu
would be warranted to the extent that the ALJ does believe that
the word is “good,” because, at best, it is unclear.
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particularly in light of the significant weight generally
afforded to the opinions of a claimant’s treating physician.
See Fargnoli, 247 F.3d at 43; Plummer, 186 F.3d at 429.
Accordingly, remand is required to allow for further
discussion as to the ALJ’s rationale for rejecting Dr. Prabhu’s
opinions regarding Plaintiff’s ability to maintain attention and
concentration for extended periods and her ability to complete a
normal workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods, as well as her
opinion that Plaintiff would likely be absent from work about 23 times per month as a result of her impairments.
By no means
is the Court suggesting that the ALJ is required to simply adopt
these opinions, and it emphasizes that it is not suggesting that
any specific additional limitations must be included in the RFC.
It is the need for further explanation that mandates the remand
here.
V.
Conclusion
In short, the record simply does not permit the Court to
determine whether the ALJ’s formulation of Plaintiff’s RFC and
his finding that Plaintiff is not disabled are supported by
substantial evidence, and, accordingly, the Court finds that
substantial evidence does not support the ALJ’s decision in this
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case.
The Court hereby remands this case to the ALJ for
reconsideration consistent with this Order.
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
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