HAUT v. COMMISSIONER OF SOCIAL SECURITY
Filing
21
OPINION indicating that 12 Motion for Summary Judgment filed by Plaintiff STEPHEN M. HAUT 12 is Granted and that 18 Motion for Summary Judgment filed by Defendant COMMISSIONER OF SOCIAL SECURITY is Denied, and remanding to ALJ for further consideration in accordance with Court's Opinion. Signed by Judge Maurice B. Cohill on 7/19/2016. (msp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEPHEN M. HAUT,
Plaintiff,
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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Civ. 15-511
OPINION
I. Introduction
This case is before us on appeal from a final decision by the defendant, Commissioner of
Social Security ("the Commissioner"), denying the claim of Plaintiff Stephen M. Haut ("Haut")
for disability insurance benefits and supplemental security income under Title II and Title XVI
of the Social Security Act. Haut filed his Complaint in this court seeking judicial review
pursuant to 42 U.S.C. § 405(g), [ECF No. 3], and the parties have submitted cross-motions for
summary judgment with briefs in support. 1 [ECF Nos. 12, 13, 18, 19]. The Commissioner's
motion seeks affirmance of the final decision denying benefits and Haut's motion seeks remand.
[ECF Nos. 13 at 11; 19 at 2]. For the reasons stated below, we will grant Haut's motion, deny
the Commissioner's motion, and remand for further proceedings consistent with this opinion.
II. Procedural History
This matter is on review from the September 17, 2013 decision of Administrative Law
Judge Joanna Papazekos ("ALJ Papazekos"), R. at 12-25, denying Haut's application for benefits
1
As observed by Oberley v. Colvin, 2014 WL 2457398at*1 n. l (W.D.Pa. May 30, 2014), although Federal Rule of
Civil Procedure 56 does not govern the District Court's judicial review of the Commissioner's decision under the
act, cross-motions for summary judgment are employed by the parties to provide a method for consideration of their
respective positions.
after hearing and on remand from the Appeals Council on a prior appeal to the Appeals Counsel
from the February 9, 2012 decision of Administrative Law Judge Daniel Cusick ("ALJ Cusick")
also denying benefits. R.126-145. Haut applied for Disability Insurance Benefits and
Supplemental Security Income under Title II and Title XVI of the Social Security Act ("SSA"),
42 U.S.C. §§ 1381-1383f on January 22, 2010, alleging disability as of October 30, 2009 at the
age of 3 7 years old, R. at 36, placing him in the age category of younger individual (18-49). 20
C.F.R. §§ 404.1563(c), 416.963(c).
Haut's claim was initially denied on June 8, 2010, and was denied on reconsideration on
August 3, 2010. Haut made a timely written request for hearing. ALJ Cusick held a hearing on
January 9, 2012, R. at 81, at which Haut appeared and testified as did independent vocational
expert James Ganoe. R. at 81, 115. Haut was represented at that hearing by counsel. R. at 27.
By decision dated February 9, 2012, R. at 126, ALJ Cusick determined that Haut was not
disabled under§§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. R. at 129. ALJ
Cusick found that Haut had severe impairments of asthma, obstructive sleep apnea (OSA),
obesity, headaches, gastroesophageal reflux disease (GERD), and irritable bowel syndrome
(IBS) and non-severe impairments of hypertension, hyperlipidemia, depression, mood disorder,
and obsessive-compulsive disorder (OCD). R. at 131, 132. On review, the Appeals Council
vacated ALJ Cusick's determination and remanded with instructions for the ALJ to, inter alia: 1)
obtain additional evidence concerning Haut's impairments; if necessary, obtain medical expert
evidence to clarify the nature and severity of Haut's impairments and their impact on his ability
to perform work; further evaluate Haut's mental impairments; further consider Haut's maximum
residual functional capacity ("RFC") during the entire period at issue and explain the weight
2
given to medical opinion evidence regarding same; evaluate third party statements; and obtain
evidence from the vocational expert clarifying the effect of Haut's assessed limitations on his
occupational base. R. at 148-149.
On remand from the Appeals Council, the matter was assigned to ALJ Papazekos, who
held a hearing on August 7, 2013, R. at 12, 32, at which Haut appeared and testified as did
independent vocational expert Mary Beth Kopar. R. at 12. Haut was represented by counsel. R.
at 12. By decision dated September 17, 2013, ALJ Papazekos determined that Haut was not
disabled under§§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act through
September 17, 2013. R. at 12, 25.
ALJ Papazekos found that Haut had the following severe
impairments: obsessive compulsive disorder (OCD), mild depression, anxiety and obesity, as
they cause more than minimal limitation in Haut's ability to perform basic work functions. R. at
15. ALJ Papazekos further found that Haut had the following non-severe impairments: asthma,
sleep apnea, lipomas (fatty tumors), gastroesophageal reflux disease (GERD) and irritable bowel
syndrome (JBS). R. at 15. ALJ Papazekos also found that Haut had only mild limitations in his
activities of daily living, R. at 16, moderate difficulties in his social functioning, R. at 16, and
moderate difficulty with concentration, persistence and pace. R. at 17.
ALJ Papazekos determined that none of Haut's physical impairments or combination of
impairments meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1, 20 CFR § 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926. R. at 15.
She concluded that neither the paragraph B nor the paragraph C criteria,
which are related to whether his mental impairments met or equaled the criteria of Listings 12.04
and 12.06, were met in this case. R. at 16.
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As to Haut's RFC, the ALJ determined that Haut has the RFC to perform light work,
except that he is limited to occasional balancing, stooping, kneeling, crouching and crawling;
cannot climb ropes, scaffolds or ladders or use foot pedals bilaterally as part of his job; cannot be
exposed to hazards, extremes of cold, heat, wetness, humidity and pulmonary irritants such as
gases, fumes, dusts, and odors; is limited to occasional contact with the public and co-workers,
working primarily with things and not people, performing verbal instructions with little to no
reading necessary to complete the job, decision-making using concrete variables within
standardized situations; and must work in a stable environment where the work place and work
processes remain generally the same from day to day. R. at 17-18.
"'[L]ight work generally requires the ability to stand and carry weight for approximately
six hours of an eight hour day.'" Fargnoli v. Massanari, 247 F.3d at 40 (quoting Jesurum v. Sec.
of Health & Human Servs., 48 F.3d 114, 119 (3d Cir. 1995)(citing Social Security Ruling 8310)). The SSA specifically defines light work as follows:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods oftime.
20 C.F.R. § 404.1567(b).
In her ruling, ALJ Papazekos indicated she made the following credibility determination:
After careful consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.
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R. at 19.
ALJ Papazekos stated that based on the medical evidence and opinions and Haut's
activities, Haut's "subjective complaints and alleged limitations are not fully persuasive and that
he retains the capacity to perform work activities within the limitations" as found. R. at 23.
Regarding his ultimate ruling that Haut is not disabled, ALJ Papazekos stated:
Based on the testimony of the vocational expert, the undersigned concludes that,
considering the claimant's age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy. A finding
of "not disabled" is therefore appropriate ....
R. at 24.
Haut timely filed for review of the ALJ's determination that he was not disabled under the
Act, which review was denied by the Appeals Council on February 13, 2015. R. at 1. Thus, the
ALJ's decision became the Commissioner's final decision for purposes of our review. Having
exhausted his administrative remedies, Haut filed the instant action seeking judicial review of the
final decision of the Commissioner of Social Security denying his application and requesting
remand. With leave granted on April 24, 2015, [ECF No. 2], Haut proceeds informapauperis.
III. Standard of Review
The Congress of the United States provides for judicial review of the Commissioner's
denial of a claim for benefits. See 42 U.S.C. § 405(g)(2012). This court must determine whether
or not there is substantial evidence which supports the findings of the Commissioner. See id.
"Substantial evidence has been defined as 'more than a mere scintilla,"' Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)), but
"does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."' Pierce v. Underwood,
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487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). This standard also has been referred to as "less than a preponderance of evidence but
more than a scintilla," Bums v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002), and does not permit
the reviewing court to substitute its own conclusions for that of the fact-finder. See id; Fargnoli
v. Massonari, 247 F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge's
findings "are supported by substantial evidence" regardless of whether the court would have
differently decided the factual inquiry). Nevertheless, "[a]n ALJ must explain the weight given
to physician opinions and the degree to which a claimant's testimony is credited." Chandler v.
Comm'r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011). "The opinion of a treating physician is,
unless inconsistent with other evidence ofrecord, entitled to great weight." Gamret v. Colvin,
994 F.Supp.2d 695, 700 (W.D. Pa. 2014) (citing Ahmad v. Comm'r of Soc. Sec., 531 F. App'x.
275 (3d Cir.2013).
The ALJ' s decision will not be reversed if supported by substantial evidence and decided
according to correct legal standards. Id. To determine whether an ALJ's finding is supported by
substantial evidence, the district court must review the record as a whole. 5 U.S.C. § 706(1)(F).
An ALJ's selective citations that are out of context and do not fairly represent the record as a
whole results in a decision that does not adequately explain the ALJ's conclusion and
necessitates remand. Krizon v. Barnhart, 197 F.Supp.2d 279, 289 (W.D. Pa. 2002).
IV. Five-Step Evaluation Process for Determining Disability under the SSA
Under the SSA, the term "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 has lasted or can be expected
to last for a continuous period of not less than 12 months ...
42 U.S.C. § 423. A person is unable to engage in substantial activity when he:
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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)(l)(A), (d)(2)(A).
In determining whether a claimant is disabled under the SSA, a sequential evaluation
process must be applied. 20 C.F.R. § 416.920(a). See McCrea v. Commissioner of Social
Security, 370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows. At step
one, the Commissioner must determine whether the claimant is engaged in substantial gainful
activity for the relevant time periods; if not, the process proceeds to step two. 20 C.F.R. §
416.920(b). At step two, the Commissioner must determine whether the claimant has a severe
impairment or a combination of impairments that is severe. 20 C.F.R. § 416.920(c).
If the
Commissioner determines that the claimant has a severe impairment, he must then determine at
step three whether that impairment meets or equals the criteria of an impairment listed in 20
C.F.R., part 404, Subpart P, Appendix. 1. 20 C.F.R. § 416.920(d).
The ALJ also must determine the claimant's RFC; that is, the claimant's ability to do
physical and mental work activities on a sustained basis despite limitations from his
impairments. 20 C.F.R. § 416.920(e). The ALJ is not required to uncritically accept a claimant's
complaints. See Chandler, 667 F.3d at 363. The ALJ, as fact finder, has the sole responsibility to
weigh a claimant's complaints about his symptoms against the record as a whole. See 20 C.F.R. §§
404. l 529(a), 4 l 6.929(a).
If the claimant does not have an impairment which meets or equals the criteria, at step
four the Commissioner must determine whether the claimant's impairment or impairments
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prevent him from performing his past relevant work. 20 C.F.R. § 416.920(f). If so, the
Commissioner then must determine, at step five, whether the claimant can perform other work
which exists in the national economy, considering his RFC, age, education and work experience.
20 C.F.R. § 416.920(g). See also McCrea, 370 F.3d at 360; Sykes v. Apfel, 228 F.3d 259, 26263 (3d Cir. 2000). In determining the RFC, the ALJ must consider all of the claimant's
impairments and their limiting effects, including impairments that are not severe. 20 C.F.R. §
404.1545( e). The Commissioner bears the burden of proving that his RFC or limitations are those
which do not allow for any work in the national economy. See Heckler v. Campbell, 461 U.S. 458,
460 (1983); Matthews v. Eldridge, 424 U.S. 319, 336 (1976); Sykes, 228 F.3d at 263.
V. Discussion
Haut's challenges center on the ALJ's determination of his RFC, including his mental
RFC. ECF 13 at 4. Haut asserts that the ALJ erred in rejecting the limitations assessed by
Haut's treating psychiatrist, Dr. Brinkley. [ECF No. 13 at 4-5]. Haut argues that she failed to
properly consider the medical evidence and did not explain the weight given to Haut's treating
psychiatrist. Haut points to the ALJ' s citation to the record to show that there is no clear medical
basis for the mental RFC as found by the ALJ and that the ALJ' s decision is not supported by
substantial evidence, [ECF No. 13 at 10], because the ALJ's citations often are vague and consist
of lengthy string cites without indication as to what portion of that record supports the ALJ' s
decision and as to what particular finding the record cite supports. Haut also points out that the
ALJ found that Haut can only have occasional contact with the public and coworkers but did not
address any restrictions regarding supervisors. [ECF No. 13 at 10]. Haut further asserts a
challenge to the failure of the ALJ in her evaluation of the opinion of Dr. Jabbour, the Agency's
own consultative examiner, regarding Haut's physical condition and the ALJ's rejection of Dr.
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Jabbour's one hour walk/stand limitation. [ECF No. 13 at 11, n.11]. In response, the
Commissioner argues that the ALJ's decision that Haut was not disabled is supported by
substantial evidence and should be affirmed. [ECF No. 19 at 1].
Given that the record is approximately 1200 pages, we will briefly detail the medical
evidence as it relates to Haut's challenges, to our consideration of the record as a whole, and to
the failings we find with the ALJ's determination under our standard ofreview.
A. Medical Evidence
1. Dr. Ben Brinkley
Haut specifically challenges the failure of the ALJ to credit and indicate the weight given
to Dr. Brinkley. [ECF No. 13 at 5, 7]. The Commissioner urges that the failure to indicate the
weight given Dr. Brinkley's opinion was harmless error, citing Clutter v. Colvin, 2014 WL
4231297 (W.D. Pa. Aug. 26, 2014). [ECF No. 19 at 15]. We do not find harmless error
regarding the ALJ's failure in her consideration and treatment of and reasoning regarding Dr.
Brinkley's opinions, diagnoses and prognoses regarding Haut.
Dr. Brinkley was Haut's treating psychiatrist who treated him on several occasions over a
period oftime. R. at 729-734, 856-860. Dr. Brinkley's completed Mental Status Questionnaire
dated January 11, 2012, R. at 856 (Ex. 25F), specifically indicates that he had diagnosed Haut
with a) Mood Disorder, involving Haut's angry outbursts, irritability, periods of depression and
anxiety; b) Generalized Anxiety Disorder, involving Haut's excessive worrying, anxiety in
public, difficulty breathing, isolation, and obsessive thinking; and c) Obsessive Compulsive
Disorder, involving Haut's obsessive need to organize, procrastination, and intolerance of clutter.
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R. at 856. Dr. Brinkley further opined that Haut's prognosis was guarded due to chronic issues
and poor response to treatment, and that Haut needed continued outpatient therapy. R. at 856.
To the question of whether in his "opinion, would your patient be able to engage in work
activity eight hours a day, day after day, on a continued basis .. even if that work were in a 'low
stress' job ... , "Dr. Brinkley responded "No." R. at 857. Dr. Brinkley further explained the
basis of his opinion as Haut having a "[h]istory of poor work performance and severe anxiety in
work situations. Obsessive thinking and worrying interfere with ability to do even simple labor."
R. 857. The medical questionnaire provided that the opinions in it "are made based on first-hand
knowledge of the client/patient, experience treating patients with similar conditions, and are
made with a reasonable degree of medical/psychological certainty." R. at 857.
The SSA defines medical opinions as "statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). ALJ
Papazekos determined that Dr. Brinkley's "no" response indicating that Haut could not work
eight hours a day, day to day, constituted an opinion on the ultimate issue of disability reserved
to the Commissioner under SSR 96-5, and thus rejected it out of hand. R. 22; see also 20 C.F.R.
§ 404.1527(d)(l). She also stated generally that Dr. Brinkley's opinion was not supported by the
objective medical evidence ofrecord or the claimant's activities, providing a lengthy string
citation with little to no detail. R. 22. ALJ Papazekos did not, however, indicate that she further
considered the opinion of Dr. Brinkley nor any specifics of the opinion, such as that Haut could
not perform simple labor due to Haut's specific issues with obsessive thinking and worrying and
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Haut's severe anxiety in a work situation, Dr. Brinkley's prognosis of Haut and the multiple
diagnoses of Haut. In apparently rejecting Dr. Brinkley's opinion on what she perceived as the
ultimate issue, she did not indicate the weight, if any, given to Dr. Brinkley's opinion either as to
Haut's ability to perform work in an 8 hour day, his opinion on Haut's prognosis or his opinion
as to the specifics of Haut's multiple mental conditions. Moreover, as to anger, Dr. Brinkley's
treatment notes and the medical questionnaire specifically remark regarding it, but ALJ
Papazekos does not discuss it. Thus, Clutter is distinguishable. 2014 WL 4231297 (harmless
error where the ALJ directly addressed treating physician's opinion and findings).
ALJ Papazekos further commented that Haut had "reported improvement with
medications, including staying calmer, increased functioning and less obsessive compulsive
symptoms." R. 22. The records, however, actually mention Haut's dissatisfaction with his
symptom control and to the contrary indicate not much improvement. R. at 702. Moreover,
those records document observation of Haut as quite anxious and easily irritated, R. at 702, that
he is still having OCD symptoms, R. at 768, was expecting better results, R. at 770, still had
anger issues and irritability, was lashing out, and exhibited blunted affect with circumstantial
thought on multiple occasions. R. at 858-860. As pointed out by Haut, several of the citations
by the ALJ in finding Dr. Brinkley's opinion inconsistent with the record are to treatment records
prior to the alleged onset of disability, [ECF No. 13 at 7]; R. at 485, 488, 489, 493, and 495, and
others are instead supportive of Dr. Brinkley's opinion as to Haut's mental impairments, R. at
775, 776, 768, rather than contradicting it.
Although "[fJorm reports in which a physician's obligation is only to check a box or fill
in a blank are weak evidence at best," Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cri. 1993), Dr.
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Brinkley's completed medical questionnaire also included a diagnosis with additional indication
as to the symptoms experienced by Haut as part of his mental conditions and should not have
been rejected outright. See Brownawell v. Commissioner of Social Security, 554 F.3d 352, 355
(3d Cir. 2008) (treating physician's opinion that claimant was prevented from working in any
type of fixed schedule due to condition rendering her disabled improperly rejected). While it is
true that "[t]he ALJ-not treating or examining physicians or State agency consultants-must
make the ultimate disability and RFC determinations, see 20 C.F.R. §§ 404.1527( e)(1 ),
404.1546( c), treating and examining physician opinions often deserve more weight than the
opinions of doctors who review records. See, e.g., 20 C.F.R. § 404.1527(d)(l)-(2)." Chandler,
667 F.3d at 361. Simply put, "[a] ALJ must explain the weight given to physician opinions." Id.
at 362. Here, critically, the ALJ did not do so regarding Haut's treating psychiatrist.
Our review of the ALJ's decision and the record as a whole reveals that the ALJ did not
give adequate consideration to the medical records and opinion of Haut's treating psychiatrist,
including not indicating the weight given, so that we may determine if her ultimate decision is
based on substantial evidence. According, we find error and determine that remand is necessary.
2. Dr. Victor Jabbour
Dr. Jabbour, the physical Consultative Examiner, examined Haut on May 5, 2010. R.
646. Dr. Jabbour completed a Medical Source Statement of Claimant's Ability to Perform
Work-Related Physical Activities. R. 644. Dr. Jabbour indicated that Haut was limited to
standing and walking 60 minutes in an 8 hour work day. R. 644. Dr. Jabbour also indicated at
that time that Haut was not limited in his ability to sit. R. 644. Haut's March 10, 2010 function
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report likewise indicated difficulty walking due to leg pain, R. at 358, 362, and issues with
Haut' s leg appear throughout the treatment records, as discussed further infra.
The ALJ nevertheless rejected Dr. Jabbour's limit on standing and walking to 60 minutes
in an 8 hour work day. The ALJ gave Dr. Jabbour's opinion on Haut's abilities due to physical
impairments some weight as generally consistent with the medical evidence, R. at 22, but
rejected his opinion as to the stand and walk limitation as not supported by the evidence of
record based on a statement by Haut that he walked 60 to 120 minutes on most days and rode an
exercise bike for 40 minutes per day. It is unclear from the record, however, whether Haut's
minutes of walking was during an 8 hour period, was continuous and during an 8 hour day or
was further spread out throughout the entire day and at what pace. R. at 22. It also is unclear
how sitting on a bike relates to the walk/stand limitation assessed by Dr. Jabbour such that it
conflicts with his findings.
As the ability to perform light work classification "requires a good deal of walking or
standing" 20 C.F.R. § 404.1567(b), the lack of discussion regarding Haut's impairments as to his
actual ability to continuously walk or stand appears missing. The ALJ does not provide a
logical bridge from the one hour restriction to the six hour ability provided for by Dr. Ali in
checking the box on the form he completed. While a decision by an ALJ rejecting restriction of
Haut's ability to walk/stand to 60 minutes in an 8 hour work day might be supportable on
substantial evidence, given the numerous parts of the record referring to Haut's difficulties in
this regard, including his right leg parethesis/meralgia paresthetica discussed infra, further
consideration by the ALJ of Haut's ability to walk/stand in an 8 hour day is merited on remand.
3. Dr. Abu Ali
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On the check the box form Dr. Ali indicated that Haut could stand and/or walk for "about
6 hours in an 8-hour workday." R. at 684. The ALJ gave the August 3, 2010 opinion of the
State Agency medical consultant, Dr. Ali, great weight, finding it consistent with the objective
medical evidence. R. 22. The ALJ reported that Dr. Ali had opined that Haut was limited to
light work with the occasional posturals and concentrated exposure limitations as found by the
ALJ. As indicated regarding Dr. Jabbour's opinion and Hart's walk/stand ability, not discussed
by the ALJ is Dr. Ali's observation of Haut's persistent right meralgia paresthetica, discussed
infra, and that staying off his legs helps his condition, R. at 689, or how that translates to Haut's
ability to walk/stand in an eight hour workday.
4. Emmanuel Schoepp, Ph.D.
Dr. Schnepp had opined that the mental impairments were non-severe. ALJ Papazekos
gave the May 18, 2010 opinion of State Agency Consultant, Dr. Schnepp, little weight because
Haut subsequently had significant mental health treatment.
The ALJ found that the mental
health treatment records subsequent to May 18, 2010 were significant and supported a finding
that Haut's mental health impairments instead are severe. R. at 22 (referring to treatment records
at Stem Center, Turtle Creek and Mileston). R. at 691-703, 820-897, 1116-1158. Dr. Brinkley's
treatment records likewise support these severe impairments. Indeed, we are mindful of the
significant health treatment records after 2010 as observed by the ALJ and that consideration and
evaluation of the evidence, regardless of source, that reflects Haut' s mental condition and
abilities prior to such significant mental health treatment should likewise bear this in mind.
5. Right Leg Paresthesia/Meralgia Paresthetica
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Due to his obesity, Haut has thigh pain, R. 477, and paresthesia in his upper right leg with
tingling and numbness, and he testified that this causes his leg to give out on him, including
when going up and down steps, and causes him to walk "real slow." R. at 51. Haut also
testified that he only could stand for about a half an hour due to the paresthesia. R. at 69. The
medical record reflects his paresthesia/meralgia paresthetica problems with his leg, R. at 641, as
well as problems with fatty tumors, some of which have been removed and some that cause
additional pain in his right leg but which he has not had removed as he was told that removal
would cause more problems. R. at 52.
Dr. Hennessey, who treated Haut for his leg condition, observed regarding his obesity
related paresthetica that he "had significant pannus formation that has applied a 'nutcracker'
effect of his right lateral femoral cutaneous nerve between his pannus and his [right anterior
superior iliac spine]." R. at 643. Dr. Hennessey treated Haut's painful leg condition by
performing a nerve block procedure, which reportedly did not help, and referred Haut for further
treatment such as "nerve cryotherapy ablation." R. at 641. ALJ Papazekos' decision cites Haut' s
hearing testimony regarding the tingling and numbness in the right leg and that a doctor had
observed the right leg meralgia paresthetica, but does not mention medical evidence regarding
the treatment for it, other than weight loss advice, nor discuss how the condition effects Haut' s
work walk/stand ability in relation to Drs. Jabbour's and Ali's findings.
6. Headaches
Headaches are only referred to by ALJ Papazekos in summarizing a statement in a non2
medical third-party letter from Haut's ex-wife, R. at 21, but the headaches are not discussed by
2
A non-medical source, such as family and friends, may be considered by the ALJ "to determine
the severity of a claimant's impairments and how those impairments impact the claimant's
ability to work." Zimsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014).
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ALJ Papazekos despite being discussed at the hearing before her. Indeed, Haut testified that he
suffers from headaches that require him to stay in bed in a dark room four to five times a week
for 45 minutes. R. 70-71. Numerous places in the medical record refer to Haut' s headaches and
headache treatment.
See~
R. at 1135, R. 1118, but there is little acknowledgement by ALJ
Papazekos, save for the statement reporting that in the letter from Haut's ex-wife "[s]he states
that claimant has chronic headaches." R. at 21. We note as well that ALJ Cusick even found
headaches to be a severe impairment, and although ALJ Cusick's decision is not in any way
binding on ALJ Papazekos, clearly, Haut's headaches merited at least some discussion. See
Owens v. Colvin, 2015 WL 4662493, at *8 (W.D. Pa. Aug. 6, 2015) (finding error for ALJ to fail
to address headaches where, though not binding, VA had found them to be disabling and thus the
record was such that it reflect headaches as a medical impairment that required discussion); cf.
Hughes v. Commissioner of Soc. Sec., --- F. App'x. --- 2016, 2016 WL 231676, at* 2 (Jan. 20,
2016) (ALJ incorporated by reference decision of prior ALJ).
In Trauterman v. Colvin, 1 F.Supp.3d 432, 436-37 (W.D. Pa. 2014), the district court
remanded the matter because the ALJ failed to address the claimant's headache-related
limitations in his RFC finding, though the claimant had testified that she had post-concussive
headaches three days a week. The court observed that "[t]he ALJ's decision must allow the
court to determine whether any rejection of potentially pertinent, relevant evidence was proper,"
1 F.Supp.3d at 437, and if "significant probative evidence was not credited or simply ignored."
Fargnoli, 247 F.3d at 42. In Trauterman, the ALJ actually addressed the claimant's headaches
but nevertheless failed to account for their effect in the RFC. ALJ Papazekos did not address
Haut's headaches at all and remand likewise is required.
16
7. IBS
As to Haut's IBS, ALJ Papazekos noted in his review of the medical evidence that Haut
testified of loose bowel movement's condition and that his bowel problems have not remained
constant over time. R. at 15. The ALJ further observed that Haut's "recent treatment is limited
to occasional use oflmodium and Dipenoxylate Atropine." R. at 15 (citing Ex. 7E [R. at 378]).
Yet, regarding the IBS and its symptoms as experienced by Haut, the medical record reflected
IBS as a constant increasing problem, that was poorly controlled, and that with increased
medication Haut would experience pain and bleeding. R. at 387, 475, 957-958, 965, 966, 978.
The medical record contained a substantial treatment history regarding his IBS. Haut also
testified that he has problems with abdominal pain and with his bowels and tends "to go
frequently" and due to the IBD had become incontinent five days of the week. R. at 49, 51.
The record of Dr. Samir, R. at 957 (Ex. 30F), cited to by the ALJ, for example, reveals
beginning with gall bladder removal that Haut experienced a constant over time battle with
diarrhea and rectal bleeding as a result of the IBS and the IBS treatment consistent with Haut's
testimony at hearing before ALJ Papazekos. R. at 491, 957-984. On our review, it is unclear
from the ALJ's decision what evidence the ALJ may or may not have considered and rejected
regarding the limiting effect of Haut's IBS, or most importantly, how that would affect his ability
to work in an 8 hour day as indicated infra regarding the hypothetical. Thus, remand is required
on this basis as well.
8. Mood Disorder/Anger Symptoms/Depression
As to Haut's mental impairments, with significant treatment occurring after May of 2010
as noted supra, the ALJ specifically rejected Haut's indication that he suffers from bipolar
17
disorder, asserting that there are no examination findings or tests to support the diagnosis and it
appears that Haut offers it on his own report. R. at 16.
The medical record, however, does
appear to indicate "strong likelihood for personality disorder," repeated diagnosis by Haut's
treating psychiatrist of personality disorder, R. at 734, 858, 859, 860, and difficulty with variable
moods. R. at 734, 888, 1134. ALJ Papazekos nowhere discusses the medical records regarding
personality disorder.
ALJ Papazekos recognized Haut's depression and anxiety, but she failed to address the
separate diagnosis of mood disorder by Haut's treating psychiatrist, which included not only
periods of depression and anxiety, but also outbursts of anger and irritability. Similar as with the
issue of headaches, ALJ Cusick found Haut's mood disorder to be an impairment, although he
found it not to be severe. Although ALJ Papazekos is not in any way bound by ALJ Cusick's
decision and was to make a determination of disability de nova, it is striking to the Court that the
mood disorder as experienced by Haut is not addressed in ALJ Papazekos' decision.
Notably absent from the ALJ's decision is any discussion of Haut's anger issues, relative
to the mood disorder or other mental impairments. As to anger, Haut testified that he gets angry
easily and is "a screamer." R. at 66. Haut's issues with anger as part of his mental impairments
appear in numerous places in the record.
See~'
R. at 873, 1120, 1134, 1140, 1144. As with
headaches and the mood disorder more generally, the ALJ's mention of Haut's issues with anger
is virtually non-existent, limited to mention in the summaries of non-medical source letters from
his two aunts that "[s]he said that the claimant has anger issues," and a recitation that Haut
testified that he angers easily due to stress and anxiety. R. at 18, 21 (citing Ex. 9E & 24 F at 3).
Without further discussion ofHaut's anger as part of his mental conditions and how that relates
18
to his work ability, we cannot tell on review what evidence the ALJ considered and rejected,
considered and discounted or considered at all. Fargnoli, 247 F.3d at 40 n.5.
Haut's depression has included severe depression at times. R. at 883, 1134, 1147, 1152.
Despite the ALJ's remark that his condition has seen improvement, R. at 19, records reveal at
times only "mild improvement" and at the end of treatment an increase in depression and
anxiety," R. at 895, and that Haut's prognosis was only "fair." R. at 896. Moreover, where there
is impairment in mental health functions, stability with medication does not necessarily mean
that a claimant with mental impairments is able to work. Weinberg v. Colvin, 2013 WL
3972651, at *5 (W.D. Pa. July 31, 2013).
Regarding Haut' s GAF 3 scores, we note that although the use of GAF has been
eliminated in the Fifth Edition of the American Psychiatric Association's Diagnostic and
Statistical Manual and can be said to have fallen into disfavor, Nixon v. Colvin, --- F.Supp.3d ---,
2016 WL 3181853, at* 3 (E.D. Pa. June 7, 2016), it is still used as medical opinion evidence by
the Social Security Administration as indicated in its July 13, 2013 Administrative Message
issued as a result of the change in the Fifth Edition. SSA AM-13066 (July 13, 2013). In
reviewing the various GAF scores in the record, ALJ Papazekos determined that the scores
themselves were inconsistent with contemporaneous mental status examination findings, and
therefore, she determined that they were "so subjective as to be meaningless," R. at 19,
observing as well that as to one evaluator, the GAF scores ranged from 45 to 50 during the same
evaluation. R. at 19. We cannot say that the ALJ's determination regarding the GAF scores was
error and we do not direct any conclusion as to the result on consideration of the GAF scores on
3
GAF stands for Global Assessment of Functioning and refers to an individual's score regarding same used to
report a clinician's judgment as to the individual's "overall" level of functioning in light of psychological, social and
occupational limitations. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual (41h ed. Text Revision 2000).
19
remand, as that is not our position in review. We note however that on remand, the ALJ should
consider both the GAF scores and the underlying observations and opinions reported by the
mental health clinicians in calculating those scores because even if the scores calculated appear
useless, the back-up documentation might not be and deserves consideration in light of the
decision by the SSA to continue use and consideration of the GAF as medical opinion evidence.
It appears that in reviewing the mental health records, the ALJ provided a laundry list of
items included on the mental health intake checklists that may not have presented as problems at
one exam or another on Haut's presentation at various mental health facilities, R. at 19, for
example his cooperative and behavior, normal language skills and vocabulary, logical and
coherent thought process, no thoughts of self-harm or suicidal or homicidal ideations. These
observations, however, do not provide any contradiction to the negative findings in those same
records regarding Haut's mental impairments, including his mood disorder, OCD, extreme
anxiety, and even his depression ratings, which has been severe at times, R. at 1134, despite what
the ALJ assessed as Haut's generally mild depression.
B. Haut's Activities and Social Function
ALJ Papazekos found mild restriction in activities of daily living, based on her finding
that Haut is independent in personal care and further that he engages in certain activities such as
maintaining his own finances and exercise, as well as organizing his room (albeit out of constant
compulsion) and shopping. R. at 16. Regarding shopping, for example, the record showed that
he would drive his Aunt to shop and would not go in to the store due to his anxiety. R. at 63.
ALJ Papazekos found Haut had only moderate difficulties in social function because he
was able to live with his 3 elderly Aunts, drive, visit a friend and neighbor and attend birthday
20
parties and summer cookouts. R. at 16. Haut lives with his elderly Aunts, however as they are
his only means of support. R. at 37. Haut testified as to a single visit of a friend in Altoona. R.
at 64. The attendance at a summer cookout or birthday party caused him difficulty. The
reference cited to by the ALJ actually provided that Haut disappears and is withdrawn when his
relatives have summer cookouts or even a birthday party for him with Haut indicating that there
are too many people.
See~'
R. at 853. Similarly, regarding attendance at the homeshow,
treatment notes reflect specifically that when Haut "went to the home show, [he] felt anxious and
distressed prior to going, slept the whole way three, once there felt tired and had to lay down,
then slept the entire way home." R. 1016.
Thus, a fair representation of these "outings" at the
home show, cookouts and birthday gathering reveals them as attempts rather than successes.
The evidence regarding Haut's activities cited to by the ALJ does not reveal the extent to
which such would be consistent with on task behavior as required for work. Haut testified
regarding his OCD,
see~
R. at 53-56, including how he had trouble with starting and finishing
a task or project, because he gets distracted as a result of his mental condition. R. at 67.
Regarding the citations to the record by the ALJ and the Commissioner as to Haut's activities
and social function, it appears that much of them relate to the time prior to Haut's significant
mental health treatment.
See,~'
[ECF No. 19 at 5]. Notably, the ALJ recognizes in the
context of Dr. Schnepp' s opinion that Haut had significant subsequent mental health treatment
afterwards but does not make a similar distinction as to Haut's report of his activities and
abilities, including activities of daily living, thus, rendering the ALJ's reasoning internally
inconsistent. Further, as observed in Weinberg v. Colvin, 2013 WL 3972651 (W.D. Pa. July 31,
2013), the work and environment differs from the home and family environment, particularly as
21
it relates to a person suffering from mental disability such as an affective disorder marked by
anxiety (and even anger). 2013 WL 3972651, at *5. On remand, the ALJ should consider hart's
activities and social functioning as it relates to the evidence when his significant mental health
history began and how that translates to his ability in a work place setting.
C. Consideration of Record as a Whole
Regarding an ALJ's finding as to the claimant's RFC, the Third Circuit in Fargnoli
explained:
The ALJ must consider all relevant evidence when determining an individual's
residual functional capacity in step four. See 20 C.F .R. §§ 404.1527(e)(2),
404.1545(a), 404.1546; Burnett, 220 F.3d at 121. That evidence includes medical
records, observations made during formal medical examinations, descriptions of
limitations by the claimant and others, and observations of the claimant's
limitations by others. See 20 C.F.R. § 404.1545(a). Moreover, the ALJ's finding
of residual functional capacity must "be accompanied by a clear and satisfactory
explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981 ). In Cotter, we explained that [i]n our view an 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. This is necessary so that the court may properly exercise its
responsibility under 42 U.S.C. § 405(g) to determine if the Secretary's decision is
supported by substantial evidence. Id. at 705 (quoting Baerga v. Richardson, 500
F.2d 309, 312 (3d Cir.1974)).
Fargnoli, 247 F.3d at 41. The ALJ's reasons for her findings must build "an accurate and logical
bridge between the evidence and the result." Sarchet v. Chater, 78 F.3d 305, 307 (ih Cir. 1996).
Where the ALJ fails to make mention of significant findings, the reviewing court cannot
determine whether he considered and rejected them, considered and discounted them, or failed to
consider them at all. Fargnoli, 247 F.3d at 40 n.5. Thus, the ALJ must give indication of the
evidence he rejects and explain the reasons for discounting pertinent evidence. Fargnoli, 247
F.3d at 43.
22
Although we do not expect the ALJ to make reference to every relevant treatment
note in a case where the claimant ... has voluminous medical records, we do
expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in
the record consistent with [her] responsibilities under the regulations and case
law. [Her] failure to do so here leaves us little choice but to remand for a more
comprehensive analysis of the evidence consistent with the requirements of
applicable regulations and the law of this Circuit.
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
As discussed herein, Haut has pointed to medical evidence that the ALJ ignored as well
as citations by the ALJ that are not borne out by our review of the record. Our review of the
medical record as a whole and the ALJ's decision describing various medical records and Haut's
testimony, reveals the ALJ' s failure to consider and discuss significant evidence, such as Dr.
Brinkley's diagnoses and prognosis, evidence on Haut's anger issues as part of his Mood
Disorder, evidence regarding headaches, and evidence regarding the extent of his bowel
problems as it would relate to his need for bathroom breaks during a workday, ultimately
rendering her determination not supported by substantial evidence and requiring remand.
In much of her decision, ALJ Papazekos provides a long list of string citations without a
clear indication as to what the ALJ is attempting to support, making it difficult to determine on
review if the ALJ's specific ruling is supported by substantial evidence. Furthermore, many of
the cited to portions of the record actually substantiate the diagnoses of mood disorder and
possible personality disorder and that anger and anxiety, headaches and bowel issues were
consistently a problem sometimes with further increased expression. [ECF No. 13 at 8]; see
~
R. at 698, 700, 701, 858, 860, 887, 888, 1128. We reviewed the numerous string citations given
by the ALJ for broad sweeping propositions and were unable to arrive at the conclusion that her
decision was supported by substantial evidence considering the record as a whole as we must.
23
D. Determination that Haut's Statements concerning the Intensity, Persistence and Their
Limiting Effects were not entirely Credible
ALJ Papazekos indicated that Haut's medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Haut's statements concerning
their intensity, persistence and limiting effects were not entirely credible. "An ALJ must explain
the degree to which a claimant's testimony is credited." Chandler, 667 F.3d at 362. "Although
any statements of the individual concerning his or her symptoms must be carefully considered,
SSR 96-7pm (July 2, 1996), the ALJ is not required to credit them." Chandler, 667 F .3d at 363
(citing 20 C.F.R. §404.1529(a)). "In concluding that some or all of a claimant's testimony is not
credible, the ALJ may rely on discrepant medical evidence and the claimant's inconsistent
statements." Jones v. Astrue, 2012 WL 3279256 at* 2 (E.D. Pa. 2012). ALJ Papazekos
explicitly stated that she did not find Haut fully credible, however, her citations to the record are
vague, not supportive or relate to a period prior to Haut's significant mental health history. For
example, she rejected Haut's indication that he would bite his hand when anxious, remarking that
there was no evidence of this in the record and she did not observe bite marks. To the contrary,
however, the Psychiatric Treatment Records reflect that Haut will "bite hand as a compulsion
when nervous." R. at 873, 1134. On remand, the ALJ is not required to fully credit Haut's
testimony but should consider the time period beginning his significant mental health history in
assessing his credibility based on prior statements of ability, activities and social functioning.
E. HypotheticalNocational Expert Testimony
As indicated by ALJ Papazekos, if Haut had the ability to perform the full range of light
work, Medical-Vocational Rule 202.21 would direct a finding that Haut is not disabled. R. at 24.
24
However, as Haut's ability to perform all or substantially all of the requirements for the full
range of light work is impeded, testimony from the vocational expert (VE) was required to
determine the extent to which Haut's limitations eroded the unskilled light occupational basis
and the extent to which jobs existed in the national economy which a person of Haut's age,
education, work experience and RFC could perform. R. 24. In order to rely on the VE's
response, the hypothetical must include all of the claimant's impairments. Gamret v. Colvin, 994
F.Supp.2d 695, 699 (W.D. Pa. 2014). "A hypothetical question posed to a vocational expert
must specify all of a claimant's impairments that are supported by the record. DeCarlo v.
Barnhart, 116 F. App'x. 387, 390 (3d Cir. 2004) (citing Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir.1987). Where the hypothetical posed to the VE does not include the medically
undisputed evidence of specific impairments and the impairments as found by the ALJ and
supported by the record, then the VE' s response does not constitute substantial evidence
supporting the ALJ's determination. Bums v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
In addition to light work generally requiring the ability to stand six hours of an eight hour day
and requiring a good deal of walking or standing, Fargnoli v. Massanari. 247 F.3d 34, 40 (3d Cir.
2001), as testified to by the VE, light work requires work that is on task 85% of the time. ALJ
Papazekos questioned the Vocational Expert as to whether considering someone with Haut's age,
education, work experience, who is limited to light work with occasional postural maneuvers; no
climbing of ropes, scaffolds, and ladders; no hazards and no concentrated exposure to dust,
fumes, pulmonary irritants, extremes in temperature (hot and cold), wetness and humidity; no use
of foot pedals bilaterally, only occasional contact with the public and co-workers, and also
limited to work primarily involving work with things and not people, what work that person
could perform. The VE testified based on this hypothetical that the person could work as a
25
sorter with over 300,000 positions in the national economy, a garment bagger with over 50,00
positions in the national economy, or a marker with over 500,000 positions in the national
economy. R. at 73. The VE testified that these positions would require only decision-making
with concrete variables in standardized situations and that the essential functions of the positions
would remain basically the same day in and day out. The VE also testified that these positions
would require verbal instruction from supervisor or person in charge of training, R. at 74, but the
ALJ never discussed any limits regarding interaction with supervisors despite Haut's conditions.
The VE further testified regarding persistence that for these positions an employer would
not tolerate an employee being off task more than 15 percent and typically would only permit an
employee to take two 15 minute breaks and a 30 minute lunch break, and that certain employers
would not tolerate a required break in excess of the two regularly scheduled breaks. R. 76. 78.
The VE testified that a person would have ready access to a restroom, but that a non-scheduled
break to use same "would depend upon the frequency, how often it occurred, and how long they
spend in the bathroom." R. at 77. The VE, however, was not questioned about pace.
ALJ Papazekos' determination and the hypothetical relied on did not address any need
for a limited interaction with a work supervisor as a result of Haut's mental impairments and did
address the ready access to the bathroom but not Haut' s need for bathroom breaks during an 8
hour work day. ALJ Papazekos' failure to resolve the need for bathroom breaks related to
Haut's IBS, (though it provided for locational access), Haut's level of distraction and ability to
keep on task, and Haut's ability to interact with a supervisor is problematic. It renders the
hypothetical incomplete for purposes of the ALJ' s reliance and the ALJ' s decision in turn not
supported by substantial evidence. A reviewing court is not simply to extrapolate backwards
26
from the hypothetical and conclude that the ALJ must have rejected the evidence as to certain
impairments that would conflict with the hypothetical relied on under the guise of the substantial
evidence standard, rather the ALJ is to explain her findings and reasoning as to the claimant's
symptoms in the record so that the reviewing court may determine that the ultimate finding that
the claimant is or is not disabled rests on substantial evidence.
There are numerous indications in the record regarding Haut's OCD that he constantly
feels the need to straighten and re-straighten things, such as his car trunk and drawers for 15
minutes to an hour at a time, and the ALJ failed to indicate to what extent this would affect
Haut's ability in an 8 hour work day to remain on task as well as keep pace. As pointed out by
Haut, although he was found to have issues with concentration, persistence and pace as a result
of his mental impairments, R. at 17, [ECF No. 13 at 11], pace was not discussed in the
hypotheticals posed to the VE.
Dr. Brinkley's opinion indicated that Haut's obsessive thinking and worrying interfere
with ability to do even simple labor. Importantly, the ALJ's RFC and the hypothetical posed to
the VE did not resolve the extent to which Haut's conditions would render him off task.
Regarding the hypothetical posed and relied on, it appears incomplete for the reasons discussed
above. Accordingly, we find that the ALJ was not entitled to rely on the vocational expert's
testimony in ultimately finding that Haut was not disabled. As a result, we ultimately hold that
the Commissioner's final ruling that Haut was not disabled is not based on substantial evidence.
V. Conclusion
As the finder of fact, the ALJ is required to review, properly consider and weigh all of the
medical records provided concerning the claimant's claims of disability. Fargnoli, 247 F.3d at 42
27
(citing Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3d Cir.1979)). In rendering her opinion,
ALJ Papazekos failed to account at all for certain impairments as documented by the medical
evidence and Haut's testimony. Consistent with the foregoing, we cannot find that the ALJ
complied with her duty to explain the weight given to the treating psychiatrist's opinions,
diagnoses and prognosis, to consider the medical record as a whole and Haut's testimony, and to
apply the proper legal standard in determining the ultimate issue of disability.
For the foregoing reasons, and based upon our review of the record as a whole, we hold
that the decision of the Commissioner that Haut was not disabled is not supported by substantial
evidence and, accordingly, we vacate the decision and remand for proceedings consistent with
this opinion. An appropriate order will be entered denying the Commissioner's motion for
summary judgment, granting Haut's motion for summary judgment, and remanding the matter.
1u1y
L"2.016
~/•aU~ ~~~
·¥r
Ma;iCe B. Cohill, Jr.
•
Senior United States District Court Judge
28
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