Opinion
CASE NO. 1:18-cv-01983-YK-GBC
11-15-2019
LEONARD J. FRONCZKIEWICZ, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Leonard J. Fronczkiewicz ("Plaintiff"), seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A).
The Act further provides that an 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.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920. The process requires an ALJ to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("Court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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. NLRB, 305 U.S. 197, 229 (1938)); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)).
II. BACKGROUND
A. Procedural History
Plaintiff was forty-three years old when he was diagnosed with non-Hodgkin's lymphoma and forty-four years old when he was awarded benefits in February 2012. (Tr. 81). On October 23, 2015, the Commissioner determined Plaintiff was no longer disabled as of October 1, 2015. (Tr. 10). He was 48 years old when his disability ceased. (Tr. 20). In June 2017, an ALJ held a hearing where Plaintiff and a Vocational Expert ("VE") testified. (Tr. 27-71). On August 28, 2017, the ALJ issued a decision finding Plaintiff no longer disabled as of October 1, 2015. (Tr. 7-26). In August 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. §§ 416.1481; 422.210(a). This action followed.
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges the following errors: (1) ALJ erred in failing to assess whether Plaintiff's brain tumor meets, or is the equivalent of, a listed impairment; (2) the ALJ erred in finding "medical improvement" in Plaintiff's impairments; and (3) the ALJ erred in failing to consider all of Plaintiff's impairments in the formulation of Plaintiff's RFC. (Pl. Br. at 3) (Doc. 7).
A. RFC Finding
Plaintiff contends the ALJ erred in formulating Plaintiff's RFC, which rendered the VE's testimony unreliable. (Pl. Br. at 8-12). Plaintiff contends the ALJ erred in failing to address the RFC limitations stemming from Plaintiff's cervicogenic headaches. (Pl. Br. at 9-12). In the decision, the ALJ made the following observations regarding the RFC finding and Plaintiff's headaches:
The medical evidence establishes that, as of October 1, 2015, the claimant had the following medically determinable impairments: a history of non-Hodgkin's lymphoma; brain tumor; a history of fracture of the spine; chronic pain syndrome; hypothyroidism; anxiety; depression; and dermatitis ...
some of his new impairments (i.e., a history of fracture of the spine; chronic pain syndrome; hypothyroidism; anxiety; and depression) are "severe" because they cause significant functional limitations in the claimant's ability to perform certain basic work-related activities ...
With regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitation. The claimant reported that he has problems with concentrating and completing tasks. He said he could pay attention for an "unknown" length of time, and he does finish the things he starts. He told the consultative examiner that he "is capacity of doing all of his ADLs," he lives alone, he drives, he can go out alone, he can manage his own finances, etc., all of which demonstrates the ability to concentrate, persist at tasks, and maintain pace. His testimony was logical, coherent, and without any apparent lapses in attention. The
totality of the evidence demonstrates that the claimant has no more than moderate limitation with regard to concentrating, persisting, or maintaining pace ...
based on all of the impairments present as of October 1, 2015, the claimant has had the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: He can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He must avoid concentrated exposure to hazards, including unprotected heights and dangerous moving machinery, extreme cold, extreme heat, and vibrations. He is limited to occupations that require the performance of no more than simple, routine tasks ...
The claimant has alleged ongoing disability based on brain tumor, depression and anxiety, repaired broken neck, pain, and headaches. He claimed his headaches can be "debilitating" to the point where he cannot get out of bed. He said that he has had constant pain from his shoulders up because of his neck injury ...
In the claimant's November 2015 Disability Report - Appeals, he stated that he has severe headaches and "attacks," and things have gotten worse after neck surgery. He said he cannot lift heavy objects or walk for long periods. He said he has problems doing daily activities due to pain, and this has caused him to become depressed and anxious. He said he barely goes out except to shop for food, and he usually has someone with him when he goes ...
On June 30, 2016, the claimant reported ... recent severe headache ...
In the claimant's November 2016 Disability Report - Appeals, he stated that he had surgery to fix his neck, and his headaches are getting worse. He said he has more pain, and his pain medications have been increased. He said his medications make him dizzy and sleepy ...
At the June 2017 hearing, the claimant testified ... he has difficulty concentrating, and sometimes he needs reminders. He said his headaches usually "lay him out" and he ends up in bed. He claimed this happens 4-5 times per week ...
A September 9, 2016 primary care physician office visit note indicates ... [Plaintiff] ... claimed he now suffers from severe anxiety and depression, and severe stabbing headaches ...
A February 24, 2017 office visit note indicates that the claimant presented with complaints of headache and neck pain recurrent over the years. It was noted that MRI showed post-surgical changes. The physical and mental examination findings were similar to those noted previously. The claimant's medications were refilled and he was stable on discharge ...
As for the opinion evidence, the Disability Determination Services (DDS) medical consultant, David Hutz, M.D., in October 2015, found that the claimant no longer meets listing 13.05A2 and has definitely had significant medical improvement. Dr. Hutz opined that the claimant could do light exertion, lifting / carrying 20 pounds occasionally and 10 pounds frequently, standing / walking for about 6 hours and sitting for about 6 hours in an 8-hour workday, with occasional postural maneuvers but no ladders / ropes / scaffolds, avoiding concentrated exposure to extreme cold, extreme heat, vibration, and hazards, including machinery and heights.
The [ALJ] gives Dr. Hutz's opinion great weight because it is well reasoned and supported by the evidence at the time it was rendered and by the evidence that came afterward, including the claimant's longitudinal physical examination findings and his routine and conservative course of treatment.
In February 2016, DDS medical consultant Minda Bermudez, M.D., gave similar limitations to those previously noted by Dr. Hutz. Specifically, Dr. Bermudez found that the claimant could lift / carry 20 pounds occasionally and 10 pounds frequently, stand / walk for about 6 hours and sit for about 6 hours in an 8-hour workday, with frequent postural maneuvers but only occasional ramps / stairs and no ladders / ropes / scaffolds, avoiding concentrated exposure to vibration and hazards, including machinery and heights.
The [ALJ] gives Dr. Bermudez's opinion great weight because it is well reasoned and consistent with the record, including the claimant's longitudinal physical examination findings and his routine and conservative course of treatment. The [ALJ] notes that Dr. Bermudez's limitations are not quite as restrictive as those previously noted by Dr. Hutz. The RFC contains limitations more consistent with Dr. Hutz's more restrictive limitations, to afford the claimant every reasonable benefit of the doubt given the evidence.
There is no mental assessment from a DDS psychological consultant. However, since the claimant does have medically determinable mental impairments of depression and anxiety, the [ALJ] has analyzed these impairments under the current "paragraph B" criteria, as discussed above. The RFC limits the claimant to occupations that require the performance of no more than simple, routine tasks. This limitation accounts for the claimant's depression and anxiety, as well as the
distracting effects of pain and the reported adverse side effects from medication. The longitudinal evidence of record supports no greater limitations ...(Tr. 12-13, 15-20). The ALJ gave great weight to the opinions of the Disability Determination Services consultants Drs. Hutz and Bermudez. (Tr. 18). On October 22, 2015, Dr. Hutz noted Plaintiff filed the initial CDR on November 18, 2010 due to the following conditions: "brain tumor; depression and anxiety; repaired broken neck; pain and headaches." (Tr. 81, 90). Despite noting Plaintiff's headaches, Dr. Hutz did not discuss what limitations, if any, would result from the headaches. Id. at 81-90. Similarly, on February 2, 2016, Dr. Bermudez noted in 2011 Plaintiff complained of chronic headaches. Id. at 391-92. However, Dr. Bermudez did not discuss what limitations, if any, would result from the headaches. Id. at 386-92. In addition, although the ALJ mentioned Plaintiff's headaches throughout the decision, the ALJ did not discuss whether or not Plaintiff's headaches were a severe impairment or what limitations, if any, would result from the headaches. (Tr. 10-22). Another case in the Middle District of Pennsylvania has articulated the requirement to remand when an ALJ did not discuss limitations stemming from other impairments:
Although the disability determination proceeded beyond step two, here the Court cannot conclude the error was harmless because limitations related to some conditions found non-severe were not included in the RFC. As noted above, Plaintiff testified about functional difficulties related to his neck pain, kidney pain, and headache pain. [The] ALJ does not discuss functional limitations related to these conditions in her RFC analysis, and the Court cannot glean from her discussion that she inferentially found these limitations not credible for specific reasons. Because the Court cannot conclude the ALJ's step two error is harmless, this matter must be remanded to the Acting Commissioner for further consideration.Rudy v. Berryhill, No. 3:16-CV-1687, 2017 WL 1283911, at *8 (M.D. Pa. Apr. 6, 2017). Similarly, in this case, the ALJ did not discuss in the RFC analysis what limitations, if any, resulted from Plaintiff's complaints of headaches. (Tr. 12-13, 15-20). Finally, as the ALJ acknowledged, there was no psychological medical opinion in the record to assess what mental limitations, if any, stemmed from the severe impairments of anxiety and depression. (Tr. 18-19).
"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 of time." 20 C.F.R. § 416.967.
Thus, the ALJ relied on the disability determination examiner opinions, which did not assess the limitations, if any, stemming from Plaintiff's headaches in order to deny his disability claim. Moreover, the ALJ did not rely on any medical opinion to support the mental work limitations within the RFC. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity [the claimant] 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.") Without any medical opinion being credited with regards to all of Plaintiff's limitations, the ALJ impermissibly relied on speculation or lay interpretation of medical evidence to reach the conclusion regarding Plaintiff's RFC. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (The ALJ may not substitute his own judgment for that of a physician). Therefore, substantial evidence does not support the ALJ's RFC finding when the ALJ did not rely on any medical opinion when deciding Plaintiff's physical limitations stemming from her severe impairments. Accordingly, the ALJ's decision lacks substantial evidence a reasonable mind might accept as adequate to support the conclusion.
On March 27, 2017, the regulations changed to require a State Agency consultant in all cases alleging mental impairments. See 20 C.F.R. § 404.1616 (e). "In a case where there is evidence of both physical and mental impairments, the medical consultant will evaluate the physical impairments in accordance with paragraph (a) of this section, and the psychological consultant will evaluate the mental impairment(s) in accordance with paragraph (c) of this section."
B. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011). Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018).
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
V. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.DATED: November 15, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE