BUSH v. COLVIN
Filing
19
OPINION and ORDER granting 10 Plaintiff's Motion for Summary Judgment and denying 14 Defendant's Motion for Summary Judgment and remanding the case for further consideration as set forth in the Opinion and Order. Signed by Judge Donetta W. Ambrose on 5/2/16. (cha)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RENEE DENISE BUSH,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 15-718
AMBROSE, Senior District Judge.
OPINION AND ORDER
Synopsis
Plaintiff Renee Bush (“Bush”) appeals an ALJ’s denial of her claim for disability
insurance benefits (“DIB”). Bush alleges a disability beginning on October 31, 2011 due to
depression, anxiety and panic attacks. (R. 13) Following a hearing and consultation with a
vocational expert, the ALJ denied her claim, concluding that she retained the residual functional
capacity (“RFC”) to perform a full range of work at all exertional levels with some restrictions.
(R. 18-26) Bush appealed. Pending are Cross Motions for Summary Judgment. See ECF Docket
Nos. [10] and [14]. Bush has filed a Reply Brief. See Docket No. [18]. After careful
consideration, and for the reasons set forth below, this case is remanded for further
consideration.
Legal Analysis
1. Residual Functional Capacity Assessment & Hypothetical Question
Bush challenges the Residual Functional Capacity (“RFC”) assessment and the
hypothetical question posed to the Vocational Expert (“VE”), urging that they do not fairly
1
reflect a limitation espoused by Dr. Valerie Rings which the ALJ necessarily endorsed by giving
Dr. Rings’ opinion “significant weight.” (R. 21)1 According to Bush, the ALJ should either have
included the language in her RFC and hypothetical2 or explained her reason for declining to do
so.
I agree on both counts. The court’s decision in Harden v. Comm’r. of Soc. Sec., Civ. No.
13-906, 2014 WL 4792294 (W.D. Pa. Sept. 24, 2014) is persuasive on this issue. In Harden, the
ALJ gave the “greatest weight” to the opinion of a non-examining state agency psychologist who
restricted the claimant to one and two-step tasks. Yet in formulating the RFC, the ALJ neither
included this limitation nor expressly rejected the limitation. Neither did the ALJ include the
limitation in his hypothetical to the VE. On review, the court found that the “RFC and
hypothetical here are not supported by substantial evidence because it is not clear whether the
omission of any limitation to one or two-step jobs was intentional or not.” Harden, 2014 WL
4792294 at * 4. The court explained that although the ALJ was not required to adopt all the
limitations set forth in the physician’s report, he was required to explain his reason for rejecting
them if he chose to do so, particularly in light of the fact that he expressly gave significant
weight to this opinion in formulating the RFC and hypothetical. Id.
1
Dr. Rings stated, among other things, that Bush would be expected to understand and remember “one and two-step
instructions.” (R. 362)
2
The ALJ formulated the following hypothetical question to the VE:
Q Please assume an individual of the claimant’s age, education, and past relevant work. This individual
would be able to perform work at all exertional levels. This individual would be able to understand,
remember, and carry out simple instructions – I’m sorry. The work would be limited to routine and
repetitive tasks, performed in a work environment free of fast-pa[ced] production requirements, involving
only simple work-related decisions and routine work-place changes. The work would be isolated from the
public, with only occasional supervision, and only occasional interaction with coworkers. Could an
individual with these limitations perform the claimant’s past work?
A No, she could not.
(R. 50-51)
2
The court hypothesized that the ALJ may have been using the phrases “routine and
repetitive tasks” and “one and two-step tasks” interchangeably. The court cautioned against
doing so. It explained that the phrases may account for a different complexity of tasks that a
claimant can perform. Id. Indeed, “the jobs that a VE and ALJ found he was able to perform,
while consistent with a limitation to routine, repetitive work, may have been inconsistent with a
limitation to one or two-step tasks.” Id. at * 5. See also, Bobbitt v. Colvin, Civ. No. 13-1320,
2014 WL 2993738 (D. Ore. July 1, 2014) (finding that a limitation to one or two-step
instructions is a more restrictive limitation than the limitation to simple, routine tasks and that
such a limitation is inconsistent with jobs listed in the DOT requiring a Reasoning Level 2); Diaz
v. Astrue, Civ. No. 10-529, 2010 WL 5313504 (C.D. Cal. Dec. 20, 2010) (same); and Gribsby v.
Astrue, No. EDCV 08-1413-AJW, 2010 WL 309013 at *2 (C.D. Cal. Jan. 22, 2010) (same). See
also, Wesselius v. Astrue, Civ. No. 11-2175, 2012 WL 4758067 at * 3 (W.D. Wash. Aug. 27,
2012) (differentiating between a finding that a claimant is capable of performing ‘one and two
step tasks” and “simple repetitive job instructions and tasks”).
Consequently, I find, as did the Harden court, that a remand is required. Because there is
potentially conflicting evidence in the record, the ALJ must explain which evidence she finds
persuasive and accepts and which evidence she rejects. She must also explain the reasons for her
determination. Harden, 2014 WL 4792294 at * 5, citing Cruz v. Comm’r. of Soc. Sec., 244 Fed.
Appx. 475, 479 (3d Cir. 2007) (citing, Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir.
1978)). Dr. Rings offered a restriction to one and two-step instructions which was not included in
either the RFC or hypothetical. The ALJ gave Dr. Rings’ opinion great weight. “The ALJ is not
necessarily obligated to accept this additional limitation, but [s]he cannot ignore it. It is the need
3
for further explanation that mandates the remand on this issue. Likewise, while the VE’s opinion
may remain unchanged even with this additional restriction, that is left for the VE to decide.” Id.3
2. Duty Owed to a Pro Se Claimant
Although remanding on the issue detailed above, I note that the Court rejects Bush’s
contention that the ALJ failed to discharge her duty to develop the administrative record on
behalf of an unrepresented client. See ECF Docket No. [11], p. 3. As the Third Circuit Court
recently stated:
an ALJ has a heightened duty to develop the record when a claimant is pro se. Mayes v.
SSA, 190 Fed. Apx. 183, 186 (3d Cir. 2006). “Social Security disability determinations
are ‘investigatory, or inquisitorial rather than adversarial.’” Butts v. Barnhart, 388 F.2d
377, 386 (3d Cir. 2004). Thus, “the ALJ must scrupulously and conscientiously probe
into, inquire of and explore for all the relevant facts.” Reefer v. Barnhart, 326 F.3d 376,
380 (2nd Cir. 2003). “If it is clear that the lack of counsel prejudiced the claimant or that
the administrative proceeding was marked by unfairness due to lack of counsel, this is
sufficient for remand, or reversal.” Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.
1980). “Implicit within this ‘heightened level of care’ is an affirmative obligation to assist
the claimant in developing a complete administrative record.” Pryor v. Astrue, No. 8-312,
2009 U.S. Dist. LEXIS 26010, at * 12, 2009 WL 890581 (W.D. Pa. March 27, 2009).
Howe v. Astrue, 2013 WL 593975 at * 2 (3d Cir. 2013). “[R]emand is appropriate when the lack
of counsel prejudices the claimant or causes unfairness at the administrative level, such as when
the ALJ fails to adequately develop the administrative record.” Comiskey v. Astrue, Civ. No. 9252, 2010 WL 308979 at * 5 (E.D. Pa. Jan. 27, 2010), citing, Livingston v. Califano, 614 F.2d
342, 345 (3d Cir. 1980).
After careful consideration, I am satisfied that Bush did not suffer any prejudice or
unfairness here relating to the manner in which the ALJ developed the administrative record.
3
The VE testified that Bush could perform the jobs of stocker, laundry worker and janitorial worker. (R. 51). These
positions appear to require a GED Reasoning Level 2. As such, there may be a conflict between the limitations
offered by Dr. Rings and the jobs identified by the VE. Were the ALJ to incorporate the limitations offered by Dr.
Rings, there would be a conflict between the testimony offered by the VE and the language of the Dictionary of
Occupational Titles (“DOT”). Before relying upon the testimony of a VE to support a determination, an ALJ must
“[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by [a VE]
… and information in the [DOT] … and [e]xplain in the determination how any conflict that has been identified was
resolved.” SSR 00-4P, 2000 WL 1898704 at * 1.
4
First, I note that Bush does not contest that she knowingly waived her right to counsel. See ECF
Docket No. [11], p. 3 n. 1. Second, there is no indication from Bush, who is currently
represented by counsel, that the ALJ lacked any necessary records or exhibits. Third, a review of
the transcript from the hearing convinces me that the ALJ carefully and thoroughly questioned
Bush as to her activities of daily living, including how she spent her days, how often she
attended church, and whether she shopped for groceries. (R. 46-49). The ALJ also inquired
about any difficulties Bush had with her memory, how often she had panic attacks, how long
they lasted, and how her condition manifested itself. (R. 45-48). She also inquired about any
medications Bush was taking and about her past and current treatment with medical providers.
(R. 40-42, 49-50) Indeed, Bush fails to identify a single condition or issue not sufficiently
addressed by the ALJ.4 Consequently, I reject Bush’s argument on this basis.
3. The Weight Accorded Treating Physicians’ Opinions
Similarly, I reject Bush’s contention that the ALJ erred with respect to her analysis and
assessment of the medical opinions offered by her treating physicians. Certainly, although the
opinions of a claimant’s treating physicians are entitled to substantial and at times even
controlling weight, “an ALJ ‘may afford a treating physician’s opinion more or less weight
depending upon the extent to which supporting explanations are provided.’” Machen v. Colvin,
Civ. No. 12-1724, 2013 WL 3168658 at * 11 (W.D. Pa. June 20, 2013) (citations omitted). Thus,
an ALJ is entitled to reject a treating physician’s opinion if it is contrary to other medical
evidence in the record; if it is not sufficiently supported by clinical data; or “it is in the form of
4
Bush does reference the ALJ’s alleged failure to explain to Bush the vocational expert’s role and criticizes her for
simply asking Bush whether she had any questions for the vocational expert. Bush implies that she was so confused
by the vocational expert’s role that, rather than question him, she offered to perform for him a dance routine. In fact,
the ALJ did explain the vocational expert’s role. (R. 33) Further, the suggestion that, in response to the ALJ’s
invitation to question the VE, Bush offered to perform a dance routine is disingenuous. See ECF Docket No. [11], p.
4-5. A review of the transcript clarifies that Bush engaged in a lengthy monologue explaining that she wished that
she could have a paying job, but that she felt she was still contributing as a person through her work at her church
which included creating a “routine” for the youth group.
5
an unsupported, conclusory opinion.” Machen, 2013 WL 3168658 at * 11, citing, Frankenfield v.
Bowen, 861 F.2d 405, 408 (3d Cir. 1988), Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir.
1985), Jones v. Sullivan, 954 F.2d 405, 408 (3d Cir. 1991), and Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993) (noting that “form reports in which a physician’s obligation is only to
check a box or fill in a blank are weak evidence [of actual disability] at best”). Of course,
“[w]hen an ALJ denies a claim where a treating physician’s opinion is not controlling, his
‘decision must contain specific reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must be sufficiently clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.’” Machen, 2013 WK 316858 at * 11 (internal citations omitted).
A thorough review of the evidence convinces me that the ALJ adhered to appropriate
standards. She expressly indicated that she considered the factors in accordance with the
requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p and 06-3p. (R. 18) She further
discussed Dr. Garfinkle’s treatment records from 2011 through 2013, and thus was clearly aware
of the length and nature of that relationship. (R. 19, 21-23). The ALJ did the same with respect to
Dr. Krimer. (R. 19, 23). She also clearly articulated particular reasons for the weight given to
Dr. Garfinkle’s and Dr. Krimer’s opinions. (R. 21-22) Specifically, the ALJ explained that she
found Dr. Garfinkle’s reports to be inconsistent with Bush’s activities of daily living;
inconsistent with her history of conservative mental health treatment; inconsistent with
Garfinkle’s own records and with the record as a whole; and as lacking in persuasive value
because it consisted of a checklist form bereft of explanation. She similarly explained that she
rejected Dr. Krimer’s opinion because of the abbreviated length of treatment; because of the lack
of a basis for the opinion; because of the inconsistency between the opinion and Dr. Krimer’s
6
own treatment records; because of the inconsistency with the activities of daily living and the
conservative treatment history; and because the opinion was based upon a form. (R. 21-22)
As stated above, the ALJ’s decision to accord Dr. Garfinkle’s and Dr. Krimer’s opinions
reduced weight for these reasons is well supported by case law. See Machen v. Colvin, Civ. No.
12-1724, 2013 WL 3168658 at * 11 (W.D. Pa. June 20, 2013); see also Milliron v. Astrue, Civ.
No. 12-1452, 2014 WL 1056976 (W.D. Pa. March 18, 2014) (stating that the ALJ was entitled to
give a physician’s opinion minimal weight and discharged his duty to explain why he chose to do
so where he explained, in part, that the physician’s opinion was offered on a form; was not
supported by any clinical or objective medical findings; was inconsistent with his own treatment
notes; and was contradicted by the claimant’s activities of daily living). Substantial evidence
supports the ALJ’s findings in these respects. As such, there is no basis for reversal or remand.
Conclusion
Bush asserted several challenges to the ALJ’s decision, but I found only one to be
persuasive. I reject Bush’s contentions that the ALJ failed in fulfilling her duty to a pro se
litigant to fully develop the record. I similarly reject the suggestion that the ALJ failed to accord
Bush’s treating physicians’ opinions appropriate weight. Yet I do find the ALJ’s failure to either
specifically reject Dr. Rings’ limitation to “one and two-step tasks” (and explain the reasoning
therefor) in formulating the RFC, or to include the language in the RFC and hypothetical to the
VE, to be problematic. Consequently, the ALJ should address this issue on remand, as more
fully detailed in this Opinion.
7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RENEE DENISE BUSH,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 15-718
AMBROSE, Senior District Judge.
ORDER OF COURT
AND NOW, this 2nd day of May, 2016, after careful consideration, and for the reasons set
forth in the accompanying Opinion, it is hereby Ordered that the Plaintiff’s Motion for Summary
Judgment is GRANTED and the Defendant’s Motion for Summary Judgment is DENIED. This
case is REMANDED for further consideration consistent with the reasoning set forth in the
accompanying Opinion. The Clerk of Courts is hereby directed to mark this case “Closed”
forthwith.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?