JAMES M. MUNLEY

(Complaint Filed 9/27/11)

(Judge Munley)

MEMORANDUM

Background

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Annie J. Ennis's claim for social security disability insurance benefits and supplemental security income benefits.

On September 2, 2009, Ennis filed protectively an application for disability insurance benefits and on September 22, 2009, an application for supplemental security income benefits. Tr. 20, 109-118, 138, 162 and 167. On November 17, 2009, the Bureau of Disability Determination denied Ennis's applications. Tr. 87-95. On January 12, 2010, Ennis requested a hearing before an administrative law judge. Tr. 100. After about 10 months had passed, a hearing before an administrative law judge was held on November 3, 2010. Tr. 59-83. On December 17, 2010, the administrative law judge issued a decision denying Ennis's applications. Tr. 20-28. On February 11, 2011, Ennis requested that the Appeals Council review the administrative law judge's decision and on July 29, 2011, the Appeals Council concluded that there was no basis upon which to grant Ennis's request for review. Tr. 7-11, 13-16 and 215-220. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Ennis then filed a complaint in this court on September 27, 2011. Supporting and opposing briefs were submitted and the appeal became ripe for disposition on February 17, 2012, when Ennis elected not to file a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Ennis met the insured status requirements of the Social Security Act through September 30,2010. Tr. 20, 22, 141, 162, 167 and 202. In order to establish entitlement to disability insurance benefits Ennis was required to establish that she suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

Ennis, who was born in the United States on July 2, 1956, withdrew from school in 1971 while attending the 10th grade. Tr. 65, 84-85, 109, 116, 188-189. Ennis can read, write, speak, and understand the English language and perform basic mathematical functions. Tr. 66 and 181. During her elementary and secondary schooling, Ennis did attend certain unspecified special education classes. Tr. 66 and 189. After withdrawing from school, Ennis did not obtain a General Equivalency Diploma or complete any type of job training. Id.

Ennis's work history covers the years 1972 through 1976, 1978, 1979, 1982, 1986, 1989, 1990, and 1994 to July 17, 2009. Tr. 67, 131, 164 and 182. Ennis's total earnings during those years were $53,774.74. Tr. 164. Her annual earnings ranged from a low of $18.85 in 1979 to a high of $7560.48 in 2003. Id. Ennis had employment as a fast-food worker, a cafeteria attendant and as a personal care aide. Tr. 79, 211 and 281.

A vocational expert who testified at the administrative hearing described the positions of fast-food worker and cafeteria attendant as unskilled, light work. Tr. 79. The vocational expert did not categorize the position of personal care aide but from Ennis's description of the position it was at least unskilled, light work.

Ennis claims that she became disabled on January 24, 2009, because of degenerative disc disease of the lumbar spine. Doc. 9, Plaintiff's Brief, p. 2. Ennis contends her degenerative disc disease was "exacerbated by an injury while working" on that date. Id. One of the records describes this work related injury as follows:

The patient states that she is seeking physical therapy for a low back/sacral injury which she sustained at work on 1/24/09. She was employed at Independent Living Services as a Personal Care Aide. She states that on 1/24/09, she went to sit down on at a client's home when the chair legs broke causing her to fall and land on her tailbone and low back. She reports feeling immediate pain which worsened overnight. The next day, she went to IndustraMed. She then went to Dr. Mauthe. . . .
Patient describes her pain as "constant, stabbing" at her tailbone, T12-L2 and T2 paraspinals. She states That this pain is present 100% of the day. . . .
Annie has had the following diagnostic tests: MRI, bone scan, EMG and x ray. X-ray, bone scan and MRI reports revealed degenerative changes . . . There was no evidence of disc herniation, nerve root compressions[,] central spinal stenosis or foraminal stenosis.

On August 17, 2010, Raymond J. Kraynak, D.O., one of Ennis's treating physicians stated that Ennis had limited lumbar range of motion and a wide stiff gait. Tr. 404. He further stated that Ennis was prescribed Vicodin, a narcotic, for pain. Id. He opined that Ennis suffered from degenerative disc disease and neuropathy and that she was "totally and permanently disabled from any and all employment.". Id. At the administrative hearing, the ALJ was informed by Ennis that she was being treated by Dr. Kraynak. Tr. 68. In fact, Ennis stated that she was seeing Dr. Kraynak "nearly every month." Tr. 68. However, the ALJ did not take any steps to obtain records from Dr. Kraynak.

The record does not contain a functional assessment from a state agency physician.

The administrative record in this case is 404 pages in length and we have thoroughly reviewed that record. In the present appeal Ennis has raised two arguments. The administrative law judge failed to properly assess the credibility of Ennis and failed to properly consider the opinion of Dr. Kraynak. Both of those arguments have merit. The administrative law judge further failed to appropriately develop the record. Set forth below is a more detailed explanation for remanding this case to the Commissioner. STANDARD OF REVIEW

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) ("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) ("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

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) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 2 2 9 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. 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 an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id. SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff 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. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity, (2) has an impairment that is severe or a combination of impairments that is severe, (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id.; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s)."). DISCUSSION

The administrative law judge at step one of the sequential evaluation process found that Ennis had not engaged in substantial gainful work activity since January 24, 2009, the alleged disability onset date. Tr. 22. The ALJ specifically stated as follows: "The claimant worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity. The claimant attempted to return to her past work as a home care aide, but she was unable to perform the work and the earnings did not rise to the substantial gainful level." Id.

At step two of the sequential evaluation process, the administrative law judge found that Ennis had the following severe impairments: "degenerative disc disease of the lumbar spine." The administrative law judge did not address the issue of whether Ennis suffered from neuropathy as found by Dr. Kraynak.

At step three of the sequential evaluation process the administrative law judge found that Ennis's impairments did not individually or in combination meet or equal a listed impairment. Tr. 23.

At step four of the sequential evaluation process the administrative law judge found that Ennis had no past relevant work but that she had the residual functional capacity to engage in a limited range of light work with a sit/stand option. Id. Specifically, the ALJ stated as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except she must
be able to alternate positions between sitting and standing, but she would not be off task when transferring positions. The claimant cannot push and/or pull with her lower extremities. She can only occasionally balance, stoop, kneel, crouch, crawl, and climb, but she can never climb on ladders, ropes, and scaffolds. The claimant should avoid moderate exposure to cold, heat, vibration, and hazards. She is limited to simple routine tasks.

At step five, the administrative law judge based on a residual functional capacity of a limited range of light work as described above and the testimony of a vocational expert found that Ennis had the ability to perform work as a cashier, counter clerk and ticket taker and that there were a significant number of such jobs in Northeastern Pennsylvania. Tr. 27.

Initially we will note again that the administrative law judge rejected the opinion of Dr. Kraynak. The preference for the treating physician's opinion has been recognized by the Court of Appeals for the Third Circuit and by all of the federal circuits. See, e.g., Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). When the treating physician's opinion conflicts with a non-treating, non-examining physician's opinion, the administrative law judge may choose whom to credit in his or her analysis, but "cannot reject evidence for no reason or for the wrong reason." Id. In choosing to reject the evaluation of a treating physician, an administrative law judge may not make speculative inferences from medical reports and may reject treating physician's opinions outright only on the basis of contradictory medical evidence. Id. An administrative law judge may not reject a written medical opinion of a treating physician based on his or her own credibility judgments, speculation or lay opinion. Id. An administrative law judge may not disregard the medical opinion of a treating physician based solely on his or her own "amorphous impressions, gleaned from the record and from his evaluation of the [claimant]'s credibility." Id. As one court has stated, "Judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor" because "lay intuitions about medical phenomena are often wrong." Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir 1990).

In rejecting Dr. Kraynak's opinion the administrative law judge did not point to any contrary medical opinion but engaged in her own lay analysis of the medical records. The administrative law judge failed to give an adequate reason for rejecting the opinion of Dr. Kraynak. In setting the residual functional capacity at a limited range of light work, the administrative law judge purportedly relies on the medical records from Ennis's other treating physicians. However, none of those medical providers indicated that Ennis could perform the lifting/carrying requirements of light work on a full-time basis.

We recognize that the residual functional capacity assessment must be based on a consideration of all the evidence in the record, including the testimony of the claimant regarding her activities of daily living, medical records, lay evidence and evidence of pain. See Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 121-122 (3d Cir 2000). However, rarely 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. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir.1986)("No physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence."); 20 C.F.R. § 404.1545(a).

As two commentators have explained:

Sometimes administrative law judges assert that they - and not physicians - have the right to make residual functional capacity determinations. In fact, it can reasonably be asserted that the ALJ has the right to determine whether a claimant can engage in sedentary, light, medium, or heavy work. The ALJ should not assume that physicians know the Social Security Administration's definitions of those terms. However, the underlying determination is a medical determination, i.e., that the claimant can lift five, 20, 50, or 100 pounds, and can stand for 30 minutes, two hours, six hours, or eight hours. That determination must be made by a doctor. Once the doctor has determined how long the claimant can sit, stand or walk, and how much weight the claimant can lift and carry, then the ALJ, with the aid of a vocational expert if necessary, can translate that medical determination into a residual functional capacity determination. Of course, in such a situation a residual functional capacity determination is merely a mechanical determination, because the regulations clearly and explicitly define the various types of work that can be performed by claimants, based upon their physical capacities.

The administrative law judge in her decision when judging the credibility of Ennis's claims of disabling pain stated as follows;

In this case, the claimant's case in establishing disability concerning her physical impairments is also directly dependent on the element of pain which is of an intractable nature. Pain is subjective and difficult to evaluate, both quantitatively and qualitatively. Nevertheless, most organic diseases produce manifestations other than pain and it is possible to evaluate the underlying processes and degree of resultant impairment by considering all of the symptoms. Generally, when an individual has suffered pain over an extended period, there will be observable signs such as a significant loss of weight, an altered gait or limitation of motion, local morbid changes, or poor coloring of station. In the present case, the claimant has complained of pain over an extended period of time. None of the above signs of chronic pain are evident. While not conclusory by itself, this factor contributes to the determination that the claimant is not disabled as a result of pain.

Finally, the administrative law judge failed to appropriately develop the record in this case. It is clear that the record was insufficiently developed for the administrative law judge to reject the opinion of Dr. Kraynak. Because there was no assessment regarding the exertional abilities of Ennis from a treating or evaluating physician and the bare medical records were insufficient for an administrative law to make such a determination, it was incumbent upon the administrative law judge to obtain such an assessment. It is clear that such an assessment could have been obtained by re-contacting Dr. Kraynak or referring Ennis to some other physician for an evaluation.

Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence.

An appropriate order will be entered.

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JAMES M. MUNLEY

United States District Judge