Opinion
CIVIL 1:21-CV-00796
01-30-2023
TANYA BANKERT, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant
(CARLSON, MAGISTRATE JUDGE)
REPORT AND RECOMMENDATION
(BRANN, CHIEF JUDGE)
I. Introduction
For Administrative Law Judges (ALJs), Social Security disability determinations frequently entail an informed assessment of competing medical opinions coupled with an evaluation of a claimant's subjective complaints. Once the ALJ completes this task, on appeal it is the duty and responsibility of the district court to review these ALJ findings, judging the findings against a deferential standard of review which simply asks whether the ALJ's decision is supported by substantial evidence in the record, see 42 U.S.C. § 405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012), a quantum of proof which “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, 487 U.S. 552, 565 (1988). This informed assessment by the ALJ, however, 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 the instant case, an ALJ denied a disability application submitted by Tanya Bankert, who applied for disability benefits in September of 2014 alleging disability due to a myriad of physical and mental impairments. Here we do not write on a blank slate. Rather this was the second decision by an ALJ, the first having been remanded by this court. Bankert v. Saul, 2019 WL 7562707 (M.D. Pa Dec. 11, 2019). This second decision by the ALJ, however, did not account for internal inconsistencies within the treating source opinions and between the ALJ's decision and the treating source opinions. Given these inconsistencies we cannot conclude that substantial evidence supports the ALJ's decision. Accordingly, we recommend that this case be remanded for further consideration by the Commissioner.
II. Statement of Facts and of the Case
On September 2, 2014, Tanya Bankert applied for disability and supplemental security insurance benefits, citing an array of physical and emotional impairments, including bipolar disorder, depression, anxiety, back injury, knee pain, and sleep apnea. (Tr. 263). Bankert was forty-one years old at the time of the alleged onset of her disability. (Tr. 88). Bankert is five feet, seven inches tall and weighed 364 pounds on October 2, 2017. (Tr. 1109). Bankert had prior employment as an assistant teacher at a childcare center, a childcare provider at a daycare, and a mechanized assembler. (Tr. 260, 264).
Regarding her physical impairments, on October 17, 2016, Bankert's primary care provider, Preeti Murudkar, M.D., noted that Bankert was capable of lifting ten pounds frequently, twenty pounds occasionally, and twenty-one pounds never; and carrying twenty pounds frequently and twenty-one pounds never. (Tr. 1619). In addition, Dr. Murudkar indicated that Bankert was capable of sitting for two hours, standing for one hour, and walking for three hours total in an eight-hour day; sitting for one hour at a time, standing for thirty minutes at a time, and walking for two hours at a time. (Tr. 1620). Dr. Murudkar also marked in the treatment notes that Bankert does not need a cane to ambulate. (Id.) However, Dr. Murudkar indicated Bankert is unable to “walk a block at a reasonable pace on rough or uneven surfaces.” (Tr. 1624). Further, Dr. Murudkar indicated that Bankert is able to “perform activities like shopping” but made a notation in the margin of the treatment notes that reads “only for short period of time due to obesity/backpain”. (Id.) Additionally, Dr. Murudkar indicated that Bankert is able to “travel without a companion . . .” but once again made a notation in the margin that reads “only short distance.” (Id.) On October 7, 2020, Dr. Murudkar indicated “no change” as to these determinations listed in her October 17, 2016, medical source statement for Bankert. (Tr. 1618-19). Thus, Dr. Murudkar's reports were marked by some apparent internal inconsistencies between the doctor's general conclusions that Bankert could walk for two hours at a time, and the doctor's narrative which described Bankert as only being capable of walking short distances.
On July 24, 2014, Bankert's neurosurgical provider, K Nicholas Pandelidis, M.D., diagnosed Bankert with lumbar disc degeneration, grade 2 L5-S' spondylolisthesis, low back pain, and sciatica secondary to instability and stenosis. (Tr. 641). Dr. Pandelidis noted that prior to this visit with Bankert, she was seen by another doctor several years ago for recurrent back pain and was treated with an epidural and was doing well for a couple of years. (Id.) During the time prior to the July 24, 2014, visit with Dr. Pandelidis, Bankert had a couple of episodes of sciatica that responded to oral steroids but at the time her most recent episode was more persistent, and she had discomfort in her low back, and tingling in her legs. (Id.) In the treatment notes Dr. Pandelidis also explained that Bankert's ability to walk was quite limited and her symptoms worsened when she was standing and walking, and she also had difficulty sitting or lying down. (Id.)
Dr. Pandelidis explained to Bankert that he did not think it was “possible for her to lose weight because of her inability to walk.” (Id.) Instead, Dr. Pandelidis recommended that Bankert consider gastric bypass. (Id.) During this visit Bankert received a 10 mg prednisone taper. (Tr. 642). A month after this steroid taper, on August 22, 2014, Dr. Pandelidis noted that Bankert looked more comfortable and was moving better using occasional steroids (Norco and Robaxin). (Tr. 525-26). In Dr. Pandelidis' treatment notes he wrote that “repeat steroid or epidural steroid could be done.” (Tr. 527).
On September 2, 2014, Tanya Bankert applied for disability and supplemental security insurance benefits and her claims were denied on October 24, 2014. (Tr. 7587). On October 21, 2016, a hearing was held before an ALJ, but this ALJ never issued a decision. (Tr. 36). The case was reassigned to the current ALJ and a second hearing was held on October 2, 2017. (Tr. 48). The ALJ issued an unfavorable decision on November 21, 2017 (Tr. 12). Bankert requested a review with the Appeals Council, but the request was denied on September 20, 2018. (Tr. 1). Bankert then filed a complaint in the Middle District of Pennsylvania, and the decision was remanded because the ALJ erred by failing to consider a treating source's, Dr. Pandelidis', testimony from the first hearing and by finding that Bankert's statements were not consistent with the evidence. Bankert v. Saul, 2019 WL 7562707 (M.D. Pa Dec. 11, 2019). On October 8, 2020, the ALJ held another hearing and Tanya Bankert and a vocational expert both testified at this hearing. (Tr. 117399). On December 7, 2020, the ALJ issued a second unfavorable decision. (Tr. 10981119).
In the December 7, 2020 decision denying Bankert's application for benefits, the ALJ first concluded that Bankert had not engaged in any substantial gainful activity since her alleged onset date of disability, September 2, 2014. (Tr. 1103). At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Bankert had the following severe impairments: degenerative disc disease of the lumbar spine, obesity, bipolar disorder, and anxiety. (Tr. 1104). At Step 3 the ALJ determined that Bankert's impairments or combination of impairments did not meet or medically equal one of the listed impairments. (Tr. 1106).
Between Steps 3 and 4 the ALJ concluded that Bankert retained the following residual functional capacity:
After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that she was capable of lifting and carrying twenty (20) pounds occasionally and ten (10) pounds frequently, sitting for six (6) hours and standing and/or walking for two (2) hours' each in an eight (8) hour day and occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching and crawling, but never climbing of ladders, ropes or scaffolds. The claimant retained the mental capacity to perform simple, repetitive, routine tasks in a low stress job, which is defined as a job with few work place changes, and to tolerate occasional interaction with supervisors and coworkers.
(Tr. 1108).
Specifically, in making this RFC determination, the ALJ considered the opinion of Bankert's primary care provider, Dr. Murudkar, but only gave the opinion partial weight. (Tr. 1114-15). The ALJ stated that Dr. Murudkar concluded that Bankert was
[C]apable of lifting ten (10) pounds frequently, twenty (20) pounds occasionally and twenty-one (21) pounds never, carrying twenty (20) pounds frequently and twenty-one (21) pounds never, sitting for two (2) hours, standing for one (1) hour and walking for three (3) hours total in an eight (8) hour day, sitting for one (1) hour at a time, standing for thirty (30) minutes at a time and walking for two (2) hours at a time . . .
(Tr. 1114).
Bankert's apparent failure to seek treatment or to continue certain treatments was one of the main reasons the ALJ only gave Dr. Murudkar's opinion partial weight. (Tr. 1115). Other reasons included the following: Dr. Murudkar stated Bankert would be unable to walk one block at a reasonable pace, which the ALJ stated was too extensive because of Bankert's positive response to injections and steroid use; Bankert's ability to walk with a normal gait and without an assistive device; and Bankert's ability to provide transportation to family. (Id.)
The ALJ also considered, Dr. Pandelidis' opinion, a neurosurgical provider, but gave the opinion only “little weight.” (Tr. 1115-16). The ALJ discredited this opinion for the same reasons as with Dr. Murudkar's opinion, but also stated the following regarding Dr. Pandelidis' opinion:
Moreover, an opinion that the claimant is unable to walk is not consistent with the opinion by the claimant's primary care provider who also treated the claimant rendered on both October 17, 2016 and October 7, 2020 that the claimant is capable of walking for three (3) hours' total in an eight (8) hour day and for two (2) hours at a time (Exhibit 15F and 25F). For these reasons, this opinion is given little weight.
(Tr. 1116).
In addition to considering Dr. Pandelidis and Dr. Murudkar's opinions, the ALJ considered Bankert's testimony regarding her back pain that she explained radiates down her legs and causes numbness if she stands, sits, or walks for too long. (Tr. 1109). The ALJ considered Bankert's testimony regarding how many hours a day she spends laying down. (Id.) Additionally, the ALJ considered her testimony regarding her mental health struggles with anxiety as well as her difficulty sleeping. (Id.)
To reach this RFC determination the ALJ also considered Bankert's activities of daily living and the opinion of her spouse, Alan Bankert. (Tr. 1114, 1116-17). Additionally, the ALJ noted that he considered all of Bankert's symptoms and to the extent to which her symptoms could be reasonably accepted as consistent with the objective medical evidence and other evidence (Tr. 1108).
Thus, at Step 4, the ALJ then found that Bankert could not perform her past work but retained the capacity to perform other jobs that existed in significant numbers in the national economy. (Tr. 1117-18). Having reached these conclusions, the ALJ determined that Bankert had not met the demanding showing necessary to sustain this claim for benefits and denied this claim.
This appeal followed. (Doc. 1). On appeal, Bankert challenges the adequacy of the ALJ's decision for several reasons. First, Bankert argues that the ALJ's RFC findings were not supported by substantial evidence. Bankert also asserts the ALJ erred by failing to order a consulting physical examination and erred by relying on Bankert's failure to seek or continue treatment as a reason to not find the treating source opinions fully persuasive. Additionally, Bankert argues the ALJ was incorrect in finding Bankert's moderate limitation in interacting with supervisors was adequately addressed by limiting her to occasional interaction with supervisors. Lastly, Bankert argues in this appeal that the ALJ erred in finding that her statements were not consistent with medical evidence.
After careful consideration of the record and the parties' arguments, we conclude that there are inconsistencies between the ALJ's RFC determination and the treating source opinions, as well as internal contradictions in the treating source opinions, all of which the ALJ does not account for or adequately explain in his analysis. Further, the ALJ's opinion discredits Dr. Murudkar and Dr. Pandelidis' determinations of Bankert's physical limitations because of Bankert's failure to seek or continue treatment, which is improper. Additionally, the ALJ misconstrues a portion of Dr. Pandelidis' opinion to mean something different than what Dr. Pandelidis clearly stated. Therefore, we conclude that the ALJ's decision is not supported by an adequate explanation, and thus, is not supported by substantial evidence. Accordingly, this case should be remanded for further consideration by the Commissioner in accordance with this decision.
III. Discussion
A. Substantial Evidence Review - the Role of this Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “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, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has underscored for us the limited scope of our review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency
factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.--,----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that [she] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues ....”).
Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review “we are mindful that we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, “this Court requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements ... are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an 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); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett, 220 F.3d at 121 (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
Once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018); Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017)..
At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and state that “[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant.” Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held 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.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting, like that presented here, where well-supported medical sources have opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. Biller, 962 F.Supp.2d at 778-79. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when no medical opinion supports a disability finding or when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living, to fashion an RFC courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington, 174 Fed.Appx. 6; Cummings, 129 F.Supp.3d at 214-15. In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns, 312 F.3d 113; see also Rathbun, 2018 WL 1514383, at *6; Metzger, 2017 WL 1483328, at *5.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision 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). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
C. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations in effect at the time of this application also set standards for the evaluation of medical evidence and define medical opinions as “statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions.” 20 C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §404.1527(c).
In deciding what weight to afford competing medical opinions and evidence, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c). “The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.” SSR 96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant, and therefore their opinions generally entitled to more weight. See 20 C.F.R. §404.1527(c)(2) (“Generally, we give more weight to opinions from your treating sources...”); 20 C.F.R. §404.1502 (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. §§04.1527(c)(2); see also SSR 96-2p, 1996 WL 374188 (explaining that controlling weight may be given to a treating source's medical opinion only where it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent with the other substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinions: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. §404.1527(c). These benchmarks, which emphasize consideration of the nature of the treating relationship, also call for careful consideration of treating source opinions.
Indeed, this court has often addressed the weight which should be afforded to a treating source opinion in a Social Security disability appeals and emphasized the importance of such opinions for informed decision-making in this field. Recently, we aptly summarized the controlling legal benchmarks in this area in the following terms:
Under applicable regulations and the law of the Third Circuit, a treating medical source's opinions are generally entitled to controlling weight, or at least substantial weight. See, e.g., Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20 CFR § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)). Oftentimes referred to as the “treating physician rule”, this principle is codified at 20 CFR 404.1527(c)(2), and is widely accepted in the Third Circuit. Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); See also Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). The regulations also address the weight to be given a treating source's opinion: “If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case, we will give it controlling weight.” 20 CFR § 404.1527(c)(2). “A cardinal principle guiding disability, eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on continuing observation of the patient's condition over a prolonged period of time.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted); See also Brownawell v. Commissioner of Social Security, 554 F.3d 352, 355 (3d Cir. 2008). In choosing to reject the treating physician's assessment, an ALJ may not make “speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence
and not due to his or her own credibility judgments, speculation, or lay opinion.” Morales v. Apfel, supra at 317.Morder v. Colvin, No. 3:16-CV-213, 2016 WL 6191892, at *10 (M.D. Pa. Oct. 24, 2016).
Thus, an ALJ may not unilaterally reject a treating source's opinion and substitute the judge's own lay judgment for that medical opinion. Instead, the ALJ typically may only discount such an opinion when it conflicts with other objective tests or examination results. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-03 (3d Cir. 2008). Likewise, an ALJ may conclude that discrepancies between the treating source's medical opinion and the doctor's actual treatment notes justifies giving a treating source opinion little weight in a disability analysis. Torres v. Barnhart, 139 Fed.Appx. 411, 415 (3d Cir. 2005). Finally, “an opinion from a treating source about what a claimant can still do which would seem to be well-supported by the objective findings would not be entitled to controlling weight if there was other substantial evidence that the claimant engaged in activities that were inconsistent with the opinion.” Tilton v. Colvin, 184 F.Supp.3d 135, 145 (M.D. Pa. 2016). However, in all instances in social security disability cases the ALJ's decision, including any ALJ judgments on the weight to be given to treating source opinions, must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. Indeed, this principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §404.1527(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion”). “Where a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.'” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales, 225 F.3d at 317. Therefore, the failure on the part of an ALJ to fully articulate a rationale for rejecting the opinion of a treating source may compel a remand for further development and analysis of the record.
D. This Case Should Be Remanded for Further Consideration and Articulation of the Grounds for the ALJ's Decision.
As we have noted, it is axiomatic that an ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter, 642 F.2d at 704. Furthermore, the ALJ must also “indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck, 181 F.3d at 433. In the instant case, we conclude that the ALJ's RFC determination is not supported by an adequate explanation.
Here, the ALJ's RFC determination and analysis did not account for inconsistencies within the treating source opinions and between the ALJ's RFC determination and the various treating source opinions. Further, the ALJ's decision cited gaps in Bankert's treatment history as grounds for discounting some treating source opinions but did so with complying with the regulations which require the ALJ to take into account the possible inability of a claimant to afford medical care.
Thus, the ALJ's analysis of these medical opinions leave us with a series of unaddressed anomalies. For example, the ALJ's RFC determination stated that Bankert was capable of walking for two hours in an eight hour day, apparently citing to Dr. Murudkar's statement that Bankert was capable of walking for three hours total in an eight hour day. However, Dr. Murudkar also indicated that Bankert would be unable to walk one block at a reasonable pace and repeatedly stressed that Bankert could only walk for short distances, findings which seemed in consistent with the RFC's determination that she could walk for two hours a day. (Tr. 1624). In our view, these notations by Dr. Murudkar contradicts her earlier indication that Bankert would be able to walk three hours total in an eight-hour workday and walk two hours at one time without interruption. (Tr. 1620). However, the ALJ's decision does not analyze, or even fully acknowledge, this internal inconsistency.
Instead, the ALJ stated that the assertion that Bankert is unable to walk one block at a reasonable pace was too extensive, and one of the primary reasons for discounting this limitation was Bankert's failure to continue or seek treatment. Yet, the ALJ's analysis on this score failed to consider whether Bankert had insurance or the financial means to seek treatment.
Relying upon gaps in care without fully considering the economic reasons for those interruptions in treatment is improper. As the court explained in Bollock v. Comm'r of Social Security, 2021 WL 6197742 (M.D. Pa. Dec. 31, 2021): “Before drawing a negative inference from her lack of seeking additional treatment for her anxiety and depression, the ALJ was required to question [the claimant] on the subject.” Id. at *7 (citing S.S.R. 16-3p; Millard v. Saul, No. 3:19-CV-00850, 2020 WL 1849719, at *5 (M.D. Pa. Apr. 13, 2020)). No such inquiry or analysis is reflected in the ALJ's decision in this case. This oversight is particularly concerning since Bankert specifically informed the ALJ that her spouse's insurance would not pay for certain types of care and treatment, (Tr. 58), thus putting the ALJ on notice of potential insurance coverage concerns. Therefore, in this case we find that the ALJ did not appear to address, or acknowledge internal inconsistencies in Dr. Murudkar's opinion relating to Bankert's ability to walk for prolonged periods and substantial distances. The ALJ then discredited a portion of Dr. Murudkar's opinion that seemingly contradicted another portion of Dr. Murudkar's opinion. Further, the ALJ's reasoning for discrediting this portion of the opinion-Bankert's failure to seek continued treatment-was improper without some further analysis of the reasons why Bankert did not seek further treatment.
Also in the treatment notes, Dr. Murudkar marked yes in response to certain questions indicating that Bankert would be capable of performing activities like shopping and traveling without a companion but then made the following notations on in the margin next to these questions: “only for short period of time due to obesity/backpain” and “only short distance.” (Tr. 1624). Dr. Murudkar's notations in the margin also appear to contradict his own determination that Bankert would be able to walk three hours in a workday, as well as the ALJ's RFC determination that Bankert would be able to walk two hours in a workday. The ALJ failed to account for this discrepancy in his RFC determination.
These internal inconsistencies are then compounded by the analysis of the second treating source opinion, the opinion of Dr. Pandelidis. Curiously, in the ALJ's analysis of Dr. Pandelidis' opinion, the ALJ stated that one of the reasons he gave Dr. Pandelidis' opinion “little weight” was because:
[A]n opinion that the claimant is unable to walk is not consistent with the opinion by the claimant's primary care provider who also treated the claimant rendered on both October 17, 2016 and October 7, 2020 that the claimant is capable of walking for three (3) hours' total in an eight (8) hour day and for two (2) hours at a time.
(Tr. 1116). Here, the ALJ discounted the persuasiveness of Dr. Pandelidis' opinion because it is inconsistent with a determination by Dr. Murudkar. However, the ALJ only gave “partial weight” to Dr. Murudkar's opinion and actually deviated from Dr. Murudkar's walking limitations without explanation in his RFC determination. (Tr. 1108, 1114-15). Therefore, we are presented with an enigma. The ALJ seemingly discounts Dr. Pandelidis' opinion based upon conclusions reached by Dr. Murudkar, which the ALJ actually declined to adopt. Moreover, given the inherent flaws and contradictions in Dr. Murudkar's opinion, further articulation of the ALJ's analysis is needed here.
Additionally, the ALJ also misunderstood a portion of Dr. Pandelidis' diagnosis. Dr. Pandelidis wrote: “I don't think it is possible for her to lose weight because of her inability to walk.” (Tr. 523). The ALJ misconstrued this statement to mean that the “claimant is unable to walk.” (Tr. 1116). Interestingly the ALJ correctly characterized Dr. Pandelidis' evaluation in the beginning of his discussion of Dr. Pandelidis' opinion. (Tr. 1115) (“The undersigned considered the opinion of K. Nicholas Pandelidis, M.D., the claimant's neurosurgical provider, who indicated . . . that the claimant's ability to walk is quite limited and he does not believe that is possible for the claimant to lose weight because of her inability to walk”). Further, as we have noted, the ALJ improperly discredited Pandelidis' opinion primarily because of Bankert's failure to continue to seek treatment with assessing whether there were economic reasons for these gaps in treatment. See Bollock, 2021 WL 6197742 at *7. As we have noted this oversight is particularly concerning since Bankert specifically informed the ALJ that her spouse's insurance would not pay for certain types of care and treatment, (Tr. 58), thus putting the ALJ on notice of potential insurance coverage concerns.
Given these inconsistencies, we cannot conclude that substantial evidence supports the ALJ's decision in this case. Accordingly, we recommend that this case be remanded for further consideration by the Commissioner. Finally, we note that nothing in this Report and Recommendation should be deemed as expressing a judgment on what the ultimate outcome of any reassessment of this evidence should be. Rather, the task should remain the duty and province of the ALJ on remand.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT this case should be REMANDED to the Commissioner for further administrative proceedings consistent with this Report and Recommendation.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.