Opinion
Civil No. 4:18-CV-00367
04-11-2019
LYNN MARIE MCGUIRE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Introduction
In this case we are called upon to evaluate an Administrative Law Judge (ALJ), Social Security disability determination which is unusual in at least five material respects. First, this disability determination reflected apparent confusion by the ALJ regarding the onset date of the claimant's disability. Second, in finding that McGuire was not disabled, the ALJ rejected the opinion of McGuire's treating source regarding her physical impairments, and instead fashioned a physical residual functional capacity assessment for McGuire which enjoyed no medical opinion support. Third, when evaluating McGuire's mental and emotional residual functional capacity, the ALJ rejected a treating source opinion in favor of the judgment of a non-treating, non-examining source who never considered the opinion of the physician who actually was providing mental health care to McGuire. The ALJ then fashioned a mental RFC which exceeded all of this opinion evidence. Fourth, the ALJ precluded McGuire's spouse from testifying at the administrative hearing, and then largely discounted the testimony of McGuire's lay witnesses in the decision denying benefits to the claimant. Fifth, the ALJ concluded that McGuire's claims of disabling anxiety and depression were not severe at Step 2 of the disability analysis process despite the extensively documented history that McGuire suffered from these emotional impairments. The ALJ also wholly discounted another documented impairment, incontinence, in this Step 2 analysis.
Viewed in combination we conclude that these five factors sufficiently undermine confidence in the disability determination in this case that a remand is appropriate. Therefore, we recommend that the district court remand this case for further consideration by the Commissioner.
II. Statement and Facts of the Case
Lynn McGuire is a woman in her 40's, (Tr. 25), who faces a host of personal, medical and psychological challenges. McGuire is the mother of a profoundly autistic, adult son, who is unable to care for his daily needs. (Tr. 45-6.) Thus, the burden of basic care for this adult child falls on McGuire and her family. (Id.)
Beyond this personal family hardship McGuire suffers from a constellation of chronic, and progressive, medical and emotional impairments. Physically, she suffers from degenerative disc disease and diabetes, conditions that are complicated by her morbid obesity. (Tr. 17.) At least some of these medical conditions have become progressively more severe over time. For example, McGuire's obesity is well-documented, and grew progressively more serious over time, with her reported weight increasing from 260 pound to 287 pounds between 2013 and 2016. (Tr. 44, 440, 449, 457, 460.) McGuire also suffered from a related medical complication which would have significantly affected her ability to work—incontinence. According to McGuire this condition caused her to frequently soil herself during the week, a medical complaint which was confirmed by those lay witnesses who were closest to McGuire, including her father. (Tr. 65.)
During the period of her claimed disability, McGuire was treated by Dr. David Mouallem. Dr. Mouallem twice provided Social Security with medical opinion statements attesting to the disabling character of McGuire's medical conditions. (Tr. 571, 525.) As Dr. Mouallem most recently explained:
Lynn McGuire has been a long standing patient in my office who continues to follow with psychiatry as well as myself on a regular basis. As previously state[d] she suffers from multiple serious medical conditions including Type II Diabetes melitus, essential hypertension and anxiety disorder. She continues to suffer from bipolar disease and major depression. She is currently being aggressively treated by psychiatry for these debilitating illnesses. Her condition has not improved and in fact has shown evidence of decline despite treatment. Lynn is compliant with the treatment plan presented to her and continues to show a willingness to recover from her multiple ailments. At this time Lynn is unable to return to work in any capacity. Furthermore I do not feel that Lynn will ever be able to return to work
on a full time basis due to multiple medical issues. In my opinion, with a reasonable degree to medical certainty, Lynn meets all of the requirements for full disability benefits.
(Tr. 525.)
Dr. Mouallem's medical opinion noted that he believed that McGuire was disabled due to a combination of medical and psychiatric impairments, and in fact McGuire has an extensively documented history of mental health treatment. This mental health treatment history began in the Fall of 2011when McGuire was seen by Dr. Jyoti Shah "due to her severe depressive state." (Tr. 470.) At that initial psychiatric encounter, Dr. Shah evaluated assessed McGuire as having a Global Assessment of Functioning or GAF score of 25. Dr. Shah provided on-going mental health treatment to McGuire since this initial clinical encounter with the severely depressed McGuire in 2011. The records of these medical encounters are noteworthy in several respects. First, these records consistently describe McGuire as suffering from three related mental health conditions, bi-polar disorder, depression and anxiety. (Tr. 399, 401, 404, 406, 663, 666, 667, and 671.) Moreover, despite years of on-going treatment Dr. Shah consistently rated the severity of McGuire's symptoms as moderately impairing her social and occupational functioning, assigning GAF scores of 51-60 to McGuire on multiple occasions.(Tr. 283, 286, 399, 405, 665, 671, 678, 684, 688.)
These were clinically significant findings since:
A GAF score is a numerical summary of a clinician's judgment of an individual's psychological, social, and occupational functioning on a hypothetical continuum of mental health on a scale of one hundred. See Diagnostic and Statistical Manual of Mental Disorders, 32-34(4th ed. text rev. 2000) (hereinafter 'DSM-IV'). A score is placed in a particular decile if either symptom severity or the level of functioning falls with that range. Id.Markoch v. Colvin, No. 3:14-CV-00780, 2015 WL 2374260, at *10 (M.D. Pa. May 18, 2015). Moreover, under the GAF score system:
GAF scores in the 51-60 range indicate moderate impairment in social or occupational functioning." Cherry v. Barnhart, 29 Fed.Appx. 898, 900 (3d Cir. 2002). DaVinci v. Astrue, 1:11-CV-1470, 2012 WL 6137324 (M.D. Pa. Sept. 21, 2012) report and recommendation adopted, Davinci v. Astrue, 1:11-CV-1470, 2012 WL 6136846 (M.D. Pa. Dec. 11, 2012). "A GAF score of 41-50 indicates 'serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) [or] any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).' DSM-IV at 34. A score of 50 is on the borderline between serious and moderate symptoms." Colon v. Barnhart, 424 F.Supp.2d 805, 809 (E.D. Pa. 2006). See Shufelt v. Colvin, No. 1:15-CV-1026, 2016 WL 8613936, at *2 (M.D. Pa. Sept. 15, 2016), report and recommendation adopted sub nom. Shulfelt v. Colvin, No. 1:15-CV-1026, 2017 WL 1162767 (M.D. Pa. Mar. 29, 2017).Jones v. Colvin, No. 1:16-CV-1535, 2017 WL 4277289, at *2 (M.D. Pa. Sept. 25, 2017), report and recommendation adopted sub nom. Jones v. Berryhill, No. 1:16-CV-1535, 2017 WL 4314572 (M.D. Pa. Sept. 27, 2017).
In 2013, Dr. Shah, a second treating source for McGuire, opined that she was disabled due to these mental health impairments. (Tr. 470.) In his medical opinion letter Dr. Shah explained that McGuire was "diagnosed with Bipolar II Disorder, Major Depressive Disorder and Generalized Anxiety Disorder with panic symptoms." (Id.) Dr. Shah explained that:
Ms. McGuire was hospitalized in the fall of 2011 due to her severe depressive state. Since her discharge from the hospital, she continue[d] to participate In regular therapy sessions with a licensed behavioral therapist and psychiatric follow-up with me, which includes medication management, crisis intervention and supportive therapy. While treatment is ongoing, Ms. McGuire has not fully responded to treatment and continues to have significant emotional impairment.(Id.)
Dr. Shah also specifically tied McGuire's emotional impairments to her inability to meet the mental demands of the workplace, stating that: "I have worked with her employer to give her a modified work schedule, different job assignments etc. however, none of these Interventions had lasting effect on her overall psychiatric well being." (Id.) Given the failure of these interventions Dr. Shah concluded based upon his years of treatment that: "Ms. McGuire can't hold any gainful employment and her illnesses are chronic and permanently disabling. Her conditions are lifelong and of sufficient severity to be permanently disabling." (Id.)
These expert medical opinions, in turn, were buttressed by the lay testimony of those closest to McGuire, her father and her spouse. McGuire's father confirmed he fragile physical and emotional state, explained her inability to perform basic activities of daily living, and described the limitations which her frequent incontinence created for McGuire. (Tr. 63-66.) McGuire's spouse submitted a third-party report, (Tr. 208-215), which provided further confirmation of the disabling character of this constellation of impairments, stating that: "Lynn's depression and emotional problems pervade all aspects of her life. She is chronically fatigued and prone to alternating bouts of deep depression and emotional outbursts. Her physical ailments compound these problems." (Tr. 208.)
It was against this medical, emotional and psychological backdrop that McGuire submitted this, her second application for Social Security disability benefits pursuant to Titles II and XVI of the Social Security Act on January 14, 2015. (Tr. 15.) At McGuire's request, a hearing regarding this application was held before an Administrative Law Judge (ALJ) on March 15, 2016. (Tr. 31-72.) At this hearing two lay witnesses, McGuire's father and spouse, stood ready to testify to the disabling effect of her impairments. The ALJ, however, instructed McGuire that he would only hear from one lay witness. (Tr. 62.) Having limited McGuire to a sole lay witness, her father, the ALJ also took testimony from McGuire herself and from a Vocational Expert. (Id.)
McGuire had previously applied for Social Security benefits in March of 2012, but that application was denied in July of 2013. (Tr. 95-114.) McGuire's current appeal does not challenge this prior disability determination. Therefore, our analysis is limited to a consideration of the most recent ALJ decision.
On August 9, 2016, the ALJ then issued a decision denying McGuire's application for benefits. (Tr. 12-26.) At the outset, this decision reflected some apparent confusion regarding the alleged onset date of McGuire's disability, describing that onset date at various times as either March of 2012 or July of 2013. (Tr. 15, 16, 17.) This confusion appeared to stem, in part, from the fact that the ruling on McGuire's prior disability application was res judicata as to any claims pre-dating July 2013.
The ALJ then found at Step 2 of the sequential analysis that applies to disability cases that McGuire suffered from the following severe impairments: degenerative disc disease, diabetes, bipolar disorder and obesity. (Tr. 117.) Notably, despite the multiple references to McGuire's depression and anxiety disorders in her treatment records, the ALJ did not find these conditions to be severe or medically determinable. (Tr. 18.) Instead, the ALJ asserted that McGuire's treatment records "only support a diagnosis of bipolar disorder." (Tr. 18.) The ALJ's decision did not reconcile this factual finding with the statement of McGuire's treating psychiatrist, Dr. Shah, that McGuire was "diagnosed with Bipolar II Disorder, Major Depressive Disorder and Generalized Anxiety Disorder with panic symptoms." (Tr. 470.) This Step 2 assessment of McGuire mental state was particularly curious since previously in 2013 McGuire's depression and anxiety had been found by an ALJ to be severe impairments at Step 2. (Tr. 100.) Likewise, the ALJ's decision discounted her claims of incontinence stating: "The record does not contain evidence of frequent incontinence." (Tr. 18.) In fact, the record contained evidence that this was an on-going intractable condition. Specifically, McGuire's father testified on this precise point, as follows:
Q You're aware of the sphincterectomy that has caused some rectal dysfunction and some accidents [for McGuire]. Have you been witness to any issues where she's had accidents at the home?
A Yes.
Q Is it frequent, infrequent, or consistent?
A I would say it's happening on a regular basis. It happens repeatedly.
(Tr. 65.)
Having made these Step 2 determinations, the ALJ went on to conclude at Step 3 of this analysis that none of McGuire's impairments were per se disabling. (Tr. 18-21.) The ALJ then found that McGuire retained the residual functional capacity to perform a limited range of sedentary work. (Tr. 21.) In reaching this conclusion the ALJ misstated and understated the severity of one of McGuire's severe impairments, her obesity, stating that McGuire was 5' 4" tall and weighed 266 pounds, (Tr. 22), when in fact her documented weight was significantly greater, ranging up to a reported 287 pounds. (Tr. 44, 440, 449, 457, 460.)
The ALJ also rejected every treating source opinion provided by McGuire in drawing this conclusion. Thus, with respect to McGuire's physical impairments, the ALJ gave the treating source opinion of Dr. Mouallem "little weight." (Tr. 23.) Instead, the ALJ fashioned a physical RFC for McGuire which was unsupported by any competent medical opinion evidence, and was contradicted by the sole physician opinion of record.
Likewise, the ALJ gave little weight to the opinion of McGuire's treating psychiatrist, Dr. Shah. (Tr. 23-4.) Instead, the ALJ elected to give some greater quantum of credence, which the ALJ described as "partial weight," to the opinion of a non-treating, non-examining source a state agency expert, Dr. Diorio. (Tr. 24.) The ALJ expressed a preference for Dr. Diorio's opinion even though Dr. Diorio did not acknowledge or address the contrary view of McGuire's treating psychiatrist in her opinion. (Tr. 115-138.) Moreover, while the ALJ gave "partial weight" to Dr. Diorio's opinion, the ALJ rejected Dr. Diorio's conclusion that McGuire suffered from moderate limitations in social functioning. (Tr. 24.) Thus, the ALJ ultimately arrived at a psychological RFC for McGuire, which like the physical RFC fashioned by the ALJ, exceeded the limitations set forth in all of expert medical opinions in this case.
Finally, having limited McGuire to a single lay witness at her disability hearing, the ALJ then discounted the statements of both McGuire's father and spouse, summarily concluding that they lacked the medical competence to make these assessments and were biased due to their familial connection to the claimant. (Tr. 24.) This cursory treatment of the lay witnesses did not address in any way the fact that the lay witness statements directly corroborated the treating source medical opinions.
Having reached these conclusions, and determined that McGuire could perform a limited range of sedentary work, the ALJ concluded at Step 4 that she could not return to her past employment, but found at Step 5 of this sequential analysis that McGuire could still perform other tasks which existed in significant numbers in the regional and national economy. (Tr. 24-5.) On the basis of these findings, the ALJ concluded that McGuire was not disabled, and denied her application for benefits. (Tr. 26.)
This appeal followed. (Tr. 1.) This case is fully briefed by the parties, and is, therefore, ripe for resolution. For the reasons set forth below, we find that the ALJ's inadequate treatment of the evidence regarding the onset of disability, the medical opinion evidence, the Step 2 analysis of this claim, and the consideration of lay testimony combine to sufficiently undermine confidence in the disability determination in this case that a remand is appropriate. Therefore, for the reasons discussed below, we recommend that this case be remanded for further consideration by the Commissioner.
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 question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that he 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., 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 v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (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).
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 have suggested 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: "There 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 F. App'x 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 where a well-supported medical source has 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. 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 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 v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). 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 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).
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. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §§ 404.1512, 416.912; 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.
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 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 F. App'x 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 v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). 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. Legal Benchmarks for the ALJ's Assessment of Lay Testimony Concerning a Claimant's Alleged Symptoms
The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:
[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) ("In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses...."). However, the ALJ must specifically identify and explain what evidence he found not credible
and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to provide "specific reasons for rejecting lay testimony"). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
There is a further corollary that follows from these principles: where a claimant is proffering lay testimony in support of a claim, the ALJ generally should afford the claimant the opportunity to develop this evidence. When an ALJ does not allow the claimant to develop this lay testimony and then rejects the lay evidence without adequate explanation, a remand may be required. See Fisher v. Astrue, 788 F. Supp. 2d 1219, 1225 (E.D. Wash. 2011). Likewise, the exclusion of lay witness testimony by an ALJ at a disability hearing may constitute error, albeit error which may be treated as "harmless if 'no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.' Stout v. Comm'r of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir.2006)." Maloney v. Comm'r of Soc. Sec., 480 F. App'x 804, 810 (6th Cir. 2012).
Thus, we are instructed to review an ALJ's evaluation of lay testimony regarding a claimant's subjective reports of pain under a standard of review which encourages full development of this evidence, is deferential on a fully-developed record to the ALJ's well-articulated findings, but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.
D. A Remand Is Necessary in this Case.
Judged against these legal standards, in the instant case we find that at least five material missteps mar the ALJ's analysis of this claim and undermine confidence in the outcome of this hearing to a degree that a remand is now necessary.
At the outset, we note that the ALJ's decision reflects some confusion regarding McGuire's date of onset, describing that date of onset as either March of 2012 or July of 2013. (Tr. 15, 16, 17.) While the Commissioner invites us to excuse this confusion as a mere typographical error, the confusion has potentially greater significance since it may mean that the ALJ was considering evidence relating to a prior timeframe when assessing the disabling effect of progressive physical conditions. Moreover, while this confusion, in isolation, may not warrant remand this confusion is the first of a series of shortcomings in this decision.
This initial onset date confusion is then compounded by the ALJ's inadequate Step 2 analysis of McGuire's severe medical conditions. In this regard, "[i]t is well-settled that this step two severity inquiry is a 'de minimus screening device to dispose of groundless claims.' McCrea v. Comm. of Soc. Sec.,370 F.3d 357, 360 (3d Cir.2004); Newell v. Comm. of Soc. Sec.,347 F.3d 541, 546 (3d Cir.2003). Accordingly, '[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant,' id.; the claimant's burden at step two is 'not an exacting one,' id.; and this step should be "rarely utilized" to deny benefits. Id. at 361." Riley v. Colvin, No. 3:13-CV-1223, 2014 WL 4796602, at *9 (M.D. Pa. Sept. 26, 2014).
Furthermore,
[E]ven if an ALJ erroneously determines at step two that one impairment is not "severe," the ALJ's ultimate decision may still be based on substantial evidence if the ALJ considered the effects of that impairment at steps three through five. However, where it appears that the ALJ's error at step two also influenced the ALJ's RFC analysis, the reviewing court may remand the matter to the Commissioner for further consideration. See Nosse v. Astrue, No. 08-[CV-1173, 2009 WL 2986612, *10] (W.D.Pa. Sept.17, 2009).
Stouchko v. Comm'r of Soc. Sec., No. 1:12-CV-1318, 2014 WL 888513, at *10 (M.D. Pa. Mar. 6, 2014).
McClease v. Comm. of Soc. Sec., No. 8-CV-1673, 2009 WL 3497775, *10 (E.D.Pa. Oct.28, 2009); see also Salles v. Comm. of Soc. Sec., 229 F.Appx. 140, 145, n. 2 (3d Cir.2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir.2005) ("Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her impairments were non-severe, any error was harmless.").
In this case, the ALJ's Step 2 analysis seems flawed in at least two material respects. First, the ALJ's Step 2 analysis significantly understated the extent of McGuire's severe emotional impairments and asserted at Step 2 that McGuire's treatment records "only support a diagnosis of bipolar disorder." (Tr. 18.) This factual assertion is incorrect since McGuire's treating psychiatrist, Dr. Shah, plainly stated that McGuire was "diagnosed with Bipolar II Disorder, Major Depressive Disorder and Generalized Anxiety Disorder with panic symptoms." (Tr. 470.) While the ALJ stated that these other emotional impairments would be considered throughout the analysis of McGuire's claim, the decision to reject the severity of multiple well-documented psychiatric conditions undermines confidence in this analysis.
The ALJ's Step 2 analysis then completely discounted McGuire's claim that she suffered from frequent incontinence, stating: "The record does not contain evidence of frequent incontinence." (Tr. 18.) This assertion is also belied by the record. In fact, McGuire's father testified on this precise point, as follows:
Q You're aware of the sphincterectomy that has caused some rectal dysfunction and some accidents [for McGuire]. Have you been witness to any issues where she's had accidents at the home?
A Yes.
Q Is it frequent, infrequent, or consistent?
A I would say it's happening on a regular basis. It happens repeatedly.
(Tr. 65.)
Incontinence can be a severe impairment, and can preclude employment. In this case, the ALJ completely failed to acknowledged this incontinence, assess its severity, or evaluate its impact upon McGuire's ability to work. Instead, the ALJ incorrectly claimed that there was no evidence of this condition. This error, standing alone, may also compel a remand of this case. Naviglia v. Colvin, No. CV 15-660, 2016 WL 4733174, at *3 (W.D. Pa. Sept. 9, 2016).
The ALJ's treatment of the medical opinion evidence was also wanting in several respects. At the outset, the ALJ's RFC determination rejected the opinion of two treating sources, both of whom found that McGuire was disabled due to the combined effects of her impairments. The ALJ then fashioned a physical RFC which was unsupported by any medical opinion evidence. As for McGuire's psychiatric RFC, the ALJ discounted the treating source's opinion in favor of a non-examining non-treating source without ever discussing the fact that the non-treating source had failed to address or even acknowledge the treating source opinion. The ALJ then gave only partial weight to this non-treating source and instead fashioned a mental RFC which exceeded all of the medical opinion evidence.
This treatment of the medical opinion evidence is suspect on several scores. First, by rejecting in whole or in part every medical opinion rendered in this case, the ALJ ran afoul of the rule that "in fashioning a residual functional capacity assessment for a claimant an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016) citing Thanh Tam Vo v. Colvin, No. 1:14-CV-00541-GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC)." Smith v. Berryhill, No. 3:16-CV-01844, 2018 WL 1442881, at *9 (M.D. Pa. Feb. 16, 2018), report and recommendation adopted, No. CV 3:16-1844, 2018 WL 1430938 (M.D. Pa. Mar. 22, 2018). Moreover, the ALJ's decision on this score curiously gave greater weight to the opinion of a non-treating, non-examining source without acknowledging that this non-examining source never addressed the existing treating source opinion, an omission which undermines the weight which that non-examining source opinion is entitled to receive. Taken together, these errors in the evaluation of the medical opinion evidence would also seem to warrant a remand of this case.
Having discounted all of the medical opinions, at least in part, and given little weight to the most informed medical opinions, the judgments made by McGuire's treating doctors, the ALJ also elected to summarily reject the lay testimony of both McGuire's father and her spouse after excluding McGuire's spouse as a witness at the disability hearing. The ALJ's cursory treatment of these witnesses, which discounted their testimony because they lacked medical expertise and had familial ties to the claimant, in our view does not comport with the admonition that the "ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.1983))." Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
Further, we conclude that the summary rejection of this lay testimony was particularly inappropriate for several reasons. First, it relied upon improper considerations to discount the credibility of these witnesses since "[t]he fact that a witness is a family member cannot be, without more, a reason for discounting that person's testimony. See Markoch v. Colvin, 2015 WL 2374260, 9 at n.2, 2015 U.S. Dist. LEXIS 64382, 36-37 at n.2 (M.D.Pa.)." Richards v. Colvin, 223 F. Supp. 3d 296, 306 (M.D. Pa. 2016). Second, in this case the ALJ not only summarily rejected this lay testimony; the ALJ also impeded the development of this evidence by excluding one of McGuire's lay witnesses from testifying at her hearing, an error which we do not find to be harmless on the facts of this case. Maloney v. Comm'r of Soc. Sec., 480 F. App'x 804, 810 (6th Cir. 2012). Finally, we conclude that the errors in the evaluation of this lay testimony cannot be considered harmless because that testimony from eyewitnesses provided significant corroboration for the treating source medical opinions, a fact which was never acknowledged or considered by the ALJ.
Taken together in combination, we find that these shortcomings compel a remand in this particular case for further consideration of the medical opinion and lay evidence, as well as a more comprehensive assessment of McGuire's severe impairments. However, 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
Accordingly, because we find that the ALJ's decision is not supported by substantial evidence, IT IS RECOMMENDED that McGuire's appeal of the ALJ's decision be GRANTED and that this matter be remanded to the Commissioner for a new administrative hearing on McGuire's claims.
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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Submitted this 11th day of April 2019.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge