Opinion
CIVIL ACTION NO. 3:18-CV-01913
08-19-2019
MARISOL MONTANEZ, Plaintiff, v. ANDREW SAUL, Defendant.
(CONNER, C.J.)
() REPORT AND RECOMMENDATION
This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (hereinafter, "the Commissioner") denying Plaintiff Marisol Montanez's claims for a period of disability and disability insurance benefits ("DIB") under Titles II and XVI of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be VACATED and REMANDED for further consideration. I. BACKGROUND AND PROCEDURAL HISTORY
On July 30, 2015, Plaintiff Marisol Montanez ("Montanez") filed applications for Title II and Title XVI benefits, respectively. (Doc. 5-10, at 2, 4). In these applications, Montanez claimed disability beginning June 17, 2015. (Doc. 5-10, at 2). The Social Security Administration initially denied Montanez's claims on November 20, 2015. (Doc. 5-9, at 4). Montanez filed a request for a hearing before an Administrative Law Judge ("ALJ") on December 3, 2015. (Doc. 5-9, at 14). ALJ Randy Riley conducted the requested hearing on May 25, 2017. (Doc. 5-7, at 36-63).
In a written opinion dated September 12, 2017, the ALJ determined that Montanez is not disabled and therefore not entitled to the benefits sought. (Doc. 5-3, at 32). Montanez appealed the ALJ's decision to the Appeals Council, who, on, August 15, 2018 denied Montanez's request for review. (Doc. 5-2, at 2). On October 1, 2018, Montanez filed the instant action. (Doc. 1). The Commissioner responded on November 27, 2018, providing the requisite transcripts from the disability proceedings on May 25, 2017. (Doc. 4; Doc. 5). The parties then filed their respective briefs (Doc. 12; Doc. 17), with Montanez alleging four errors warranted reversal or remand. (Doc. 12, at 1-2). II. THE ALJ'S DECISION
In a decision dated September 12, 2017, the ALJ determined Montanez "has not been under a disability, as defined in the Social Security Act, from June 17, 2015, through the date of this decision." (Doc. 5-3, at 32). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. § 404.1520; 20 C.F.R. §416.920(a). The ALJ determined that Montanez met the insured status requirements of the Social Security Act through December 31, 2020. (Doc. 5-3, at 18).
At step one, an ALJ must determine whether the claimant is engaging in substantial gainful activity ("SGA"). 20 C.F.R § 404.1520(a)(4)(i); 20 C.F.R. § 416.920(a)(4)(i). If a claimant is engaging in SGA, the Regulations deem them not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b). SGA is defined as work activity—requiring significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572; 20 C.F.R. § 416.972. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574; 20 C.F.R. § 416.974. The ALJ determined Montanez "has not engaged in [SGA] since June 17, 2015, the alleged onset date." (Doc. 5-3, at 18). Thus, the ALJ's analysis proceeded to step two.
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. § 416.920(a)(4)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have a severe impairment and [is], therefore, not disabled." 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step.
The ALJ found Montanez has the following severe impairments: post-laminectomy syndrome with underlying scoliosis and lumber degenerative disease, migraine headache, major depressive disorder, and generalized anxiety disorder. (Doc. 5-3, at 19). The ALJ also identified Montanez's non-severe impairments as "history of kidney cancer - in remission status-post nephrectomy, fibromyalgia, lupus, bilateral knee arthritis, and urinary incontinence." (Doc. 5-3, at 19).
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (20 C.F.R. §§ 404.1520(a)(4)(iii); 404.1525; 404.1526; 20 C.F.R. §§ 416.920(a)(4)(iii); 416.925; 416.926). If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 416.920(d). The ALJ determined that none of Montanez's impairments, considered individually or in combination, met or equaled a Listing. (Doc. 5-3, at 21). Specifically, the ALJ considered Listings: 1.04 (disorders of the spine); 11.02 (epilepsy);12.04 (depressive, bipolar and related disorders); and 12.06 (anxiety and obsessive-compulsive disorders). (Doc. 5-3, at 21-25).
Between steps three and four, the ALJ determines the claimant's residual functional capacity ("RFC"), crafted upon consideration of the medical evidence provided. Here, the ALJ determined that Montanez has the RFC to perform light work with the following limitations: "occasionally climb stairs or balance; never climb ladders; and work is limited to simple routine, repetitive tasks." (Doc. 5-3, at 25).
Having assessed a claimant's RFC, at step four the ALJ must determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 416.920(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 416.920(a)(4)(iv). Past relevant work is defined as work the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b); 20 C.F.R. § 416.960(b). If the claimant cannot perform past relevant work or has no past relevant work, then the analysis proceeds to the fifth step.
The ALJ determined Montanez is unable to perform past relevant work. (Doc. 5-3, at 31). The ALJ noted past relevant work as an administrative clerk and a security guard, but the exertional requirements of each exceeded Montanez's RFC. (Doc. 5-3, at 31).
At step five of the sequential analysis process, an ALJ considers the claimant's age, education, and work experience to see if a claimant can make the adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R. § 416.920(a)(4)(v). These factors are not considered when evaluating a claimant's ability to perform past relevant work. 20 C.F.R. § 404.1560(b)(3); 20 C.F.R. § 416.960(b)(3). If a claimant has the ability to make an adjustment to other work, they will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R. § 416.920(a)(4)(v).
The ALJ made vocational determinations that Montanez was forty-two years old on the alleged onset date, defined as a younger individual age 18-49 by the Regulations. 20 C.F.R. § 404.1563; 20 C.F.R. § 416.963. (Doc. 5-3, at 31). The ALJ also noted that Montanez "has at least a high school education and is able to communicate in English" as considered in 20 C.F.R. § 404.1564; 20 C.F.R. § 416.964. (Doc. 5-3, at 31). The ALJ determined that upon consideration of these factors, Montanez's RFC, and the testimony of a vocational expert, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." (Doc. 5-3, at 31-32). The ALJ specifically identified occupations of small products assembler and housekeeping cleaner. (Doc. 5-3, at 32).
As a result of this analysis, the ALJ determined that Montanez was not disabled and denied his applications for benefits. (Doc. 5-3, at 32). III. STANDARD OF REVIEW
In order to receive benefits under Title II or Title XVI of the Social Security Act, 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), 1382c(a)(3)(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 significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131.
In evaluating whether a claimant is disabled as defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity ("RFC"); and (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f) ; 20 C.F.R. § 416.912(f).
In reviewing the Commissioner's final decision denying a claimant's application for benefits, the Court's review is limited to determining whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference); 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) (internal quotations omitted). 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). In an adequately developed factual record, however, 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. Mar. 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 the Court, therefore, is not whether Montanez is disabled, but whether the Commissioner's finding that Montanez 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."); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'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 v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012) ("[T]he court has plenary review of all legal issues decided by the Commissioner."). IV. DISCUSSION
On appeal, Montanez argues that the ALJ erred by failing to: (1) consider the limitations arising from her severe impairments, which included post-laminectomy syndrome, scoliosis, lumbar degenerative disc disease, migraine headaches, major depressive disorder, and generalized anxiety disorder, in the RFC; (2) consider the limitations arising from her non severe impairments in the RFC; (3) properly evaluate the opinion evidence of record in formulating the RFC; and (4) consider her conditions under Listings 1.02 and 1.04. (Doc. 12, at 1-2).
In her second contention of error, Montanez argues that the ALJ did not adequately consider several of her impairments, which should have been deemed severe at Step Two, in the RFC assessment. (Doc. 12, at 18-20). Specifically, Montanez argues that her fibromyalgia, bilateral arthritis of the knees, rheumatoid arthritis, stress incontinence, radiculopathy, Lyme disease and sleep disorder had more than a minimal effect upon her and thus should have been factored into her RFC. (Doc. 12, at 20). In response, the Commissioner argues that any failure to find these conditions not severe at step two was harmless, as the ALJ proceeded all the way through step five of the sequential evaluation process. (Doc. 17, at 5-11). The ALJ further argues that the ALJ did not err in his findings, as no credible evidence establishes that Montanez's non-severe impairments resulted in significant functional loss. (Doc. 17, at 9-10).
In step two of the evaluation process, an ALJ is required to consider whether a claimant's impairments are (1) medically determinable and (2) severe. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1521; 20 C.F.R. §§ 416.920(a)(4)(ii), 416.921. An impairment is not considered severe if it does not significantly impact a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). If an ALJ determines that a claimant has a severe condition at step two, then the sequential analysis proceeds to step three. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1521; 20 C.F.R. §§ 416.920(a)(4)(ii). 416.921. As such, generally "[a] failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two." Weitzel v. Colvin, 967 F. Supp. 2d 1089, 1097 (M.D. Pa. 2013).
Under the regulations, a medically determinable impairment is evaluated as follows:
Your [medically determinable] impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).
20 C.F.R. § 404.1521; 20 C.F.R. § 416.921.
Under the prior version of the regulations, a non-severe impairment was defined as an impairment that "does not significantly limit [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521 (effective Mar. 5, 1985 to Mar. 26, 2017); 20 C.F.R. § 416. 921 (effective Feb. 11, 1991 to Mar. 27, 2017); see also Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) ("This step two analysis is a de minimis screening device to dispose of groundless claims; thus, an impairment may be found not severe only if the evidence establishes a slight abnormality . . . [that has] no more than a minimal effect on an individual's ability to work." (internal citations and quotations omitted)).
However, finding that an impairment is non-severe at Step Two "does not obviate the need for a separate analysis of how Plaintiff's impairment affects her RFC." Soboleski v. Comm'r of Soc. Sec., 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015); see also Hess v. Comm'r Soc. Sec., --- F.3d ---, No. 18-2226, 2019 WL 3418953, at *9 (3d Cir. July 30, 2019) (explaining that because the functional limitation findings at Step Two and the RFC assessment at Step Four "serve distinct purposes and may be expressed in different ways . . . the findings at steps two and three will not necessarily translate to the language used at steps four and five."). Indeed, under the regulations, an ALJ is required to asses all of a claimant's medically determinable impairments - including those that are not severe - in combination when making the subsequent RFC determination. See 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.945(a)(2); see also Weitzel, 967 F. Supp. 2d at 1097 ("[A]ll of the medically determinable impairments both severe and non-severe must be considered at step two and then at step four when setting the residual functional capacity."). As further explained by SSR 96-8p:
In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not "severe." While a "non severe" impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may - when considered with limitations or restrictions due to other impairments - be critical to the outcome of a claim. For example, in combination with limitations imposed by an individual's other impairments, the limitations due to such a "not severe" impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.
SSR 96-8p, 1996 WL 374184 (emphasis added).
Thus, "[e]ven if the ALJ properly determines that a claimant's impairments are non-severe [at Step Two] . . . a finding of non-severity does not eliminate those impairments from consideration of his or her overall ability to perform past work." Marsella v. Comm'r of Soc. Sec., No. CV 18-2294 (JBS), 2019 WL 912141, at *9 (D.N.J. Feb. 25, 2019) (emphasis added). Similarly, "where the disability analysis continues to Step [Three], an ALJ's erroneous determination of an impairment's non-severity may constitute harmless error, provided that the impairment continues to be factored in." Rodriguez v. Berryhill, No. CV 17-6884-KM, 2019 WL 1013343, at *9 (D.N.J. Mar. 1, 2019) (emphasis added); see also Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005) (failing to determine the severity of a condition at stage two was harmless because the ALJ properly considered it in the evaluation of the claimant's limitations).
"[U]nlike an error on the issue of severity, in most cases where an ALJ errs by finding that an impairment alleged by the claimant is not medically determinable[,] that error is not considered harmless." Hartzell v. Colvin, No. 3:15-CV-2441, 2017 WL 34701, at *2 (M.D. Pa. Jan. 3, 2017). Indeed, "an ALJ's failure to find an impairment medically determinable at [S]tep [T]wo, or to support a finding that an impairment is not medically determinable, makes the ALJ's finding at subsequent steps of the sequential evaluation process defective and is cause for remand." Hartzell, 2017 WL 34701, at *2.
In the opinion, the ALJ considered several of Montanez's alleged impairments at Step Two and found that her chronic urinary frequency and stress incontinence were medically determinable but not severe. (Doc. 5-3, at 21). Specifically, the ALJ reasoned:
Montanez's second contention of error asserts that the ALJ also considered the following impairments to be non-severe: fibromyalgia; bilateral arthritis of the knees; rheumatoid arthritis; radiculopathy, Lyme disease, and sleep disorder. (Doc. 12, at 18). However, upon review, the ALJ found that Montanez's fibromyalgia, bilateral knee arthritis, rheumatoid arthritis and Lyme disease were not established as medically determinable impairments. (Doc. 5-3, at 19-20). Further, the ALJ's opinion made no mention of Montanez's radiculopathy or sleep disorder. (Doc. 5-3). Accordingly, contrary to Montanez's claim, the ALJ did not address the severity of these impairments at Step Two.
Contrary to claimant['s] allegations of needing to use the bathroom eight to fourteen times per day and wearing an adult diaper due to incontinence, the record relevant to the period at issue barely documents urinary issues, with
infrequent claimant reporting of symptoms - typically in connection with urinary tract infections, no evidence of specialist treatment during the period at issue, and no reporting of use of adult diapers, as one would expect if the claimant's symptoms were truly as severe as alleged. Given the lack of objective documentation of persistent severe symptoms that might suggest resultant functional loss, the undersigned finds the established history of urinary frequency and stress urinary incontinence medically determinable but not severe.
(Doc. 5-3, at 21).
However, in the subsequent RFC analysis, the ALJ stated "[d]isorders that have been determined to be not medically determinable or medically determinable but not severe on the current record have been discussed [at Step Two] and will not be further treated in this section of the decision." (Doc. 5-3, at 26). Indeed, the only further discussion of Montanez's stress incontinence occurred in the context of the ALJ discounting her reported inability to climb stairs; in particular, because Montanez's "bathroom is on the upper floor of her home and she uses the bathroom eight to fourteen times per day," the ALJ found her capacity to climb stairs, as contemplated by the RFC assessment, was intact. (Doc. 5-3, at 25-26).
Montanez argues that the ALJ failed to properly consider her limitations that stemmed from stress incontinence, which should have been deemed a severe impairment. (Doc. 12, at 20). Specifically, Montanez contends that the RFC assessment did not account for her need to take unscheduled bathroom breaks on a regular basis. (Doc. 12, at 20). The Commissioner, however, asserts that the ALJ properly found her stress incontinence to be non-severe. (Doc. 17, at 8-9). The Commissioner further submits that the ALJ could not have materially erred at Step Two, given that the RFC accounted for Montanez's "established mental and physical limitations." (Doc. 17, at 7).
As pointed out by the Commissioner, the ALJ ruled in Montanez's favor at the second stage of the sequential evaluation process when he found that her post-laminectomy syndrome with underlying scoliosis and lumbar degenerative disease, migraine headaches, major depressive disorder and generalized anxiety disorder were severe impairments. See Weitzel v. Colvin, 967 F. Supp. 2d 1089, 1097 (M.D. Pa. 2013). Nonetheless, irrespective of whether the ALJ erroneously concluded that Montanez's urinary frequency and stress incontinence were not also severe, the Court is not persuaded that the RFC sufficiently accounted for these impairments. See Marsella, 2019 WL 912141, at *9; Rodriguez, 2019 WL 1013343, at *9. Notably, in his RFC evaluation, the ALJ indicated that Montanez's non-severe disorders had already been addressed and would "not be further treated." (Doc. 5-3, at 26). However, "the Commissioner's procedures do not permit the ALJ to simpl[y] rely on his finding of non-severity as a substitute for a proper RFC analysis." Kich v. Colvin, 218 F. Supp. 3d 342, 355 (M.D. Pa. 2016) (citing Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013)); see also Soboleski v. Comm'r of Soc. Sec., 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015) (the ALJ's "simple phrase in the step two analysis does not obviate the need for a separate analysis of how Plaintiff's impairment [of irritable bowel syndrome] affects her RFC.").
Further, in refuting the severity of Montanez's stress incontinence and urinary frequency at Step Two, the ALJ noted a "lack of objective documentation of persistent severe symptoms that might suggest resultant functional loss." (Doc. 5-3, at 21). Specifically, despite reportedly using the bathroom eight to fourteen times a day and wearing adult diapers, the ALJ reasoned that the evidence was not what one would expect if Montanez's symptoms "were truly as severe as alleged." (Doc. 5-3, at 21). The RFC evaluation, however, then expressly relied on Montanez's use of the bathroom, located on the upper level of her home, eight to fourteen times per day to support the conclusion that Montanez retained the capacity to occasionally climb stairs. (Doc. 5-3, at 25-26). Thus, by acknowledging this medically determinable impairment, albeit in the context of evaluating an exertional limitation, the ALJ apparently discounted Montanez's testimony at Step Two to then inexplicably credit the same upon formulating the RFC assessment.
Given the passive reference to the conclusions at Step Two and the opinion's inconsistent treatment of Montanez's symptomology, it is unclear whether the ALJ fully considered "the limitations and restrictions imposed by all of [Montanez's] impairments" in determining the RFC. See SSR 96-8p; 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.945(a)(2); Weitzel v. Colvin, 967 F. Supp. 2d 1089, 1097 (M.D. Pa. 2013); Soboleski, 2015 WL 6175904, at *2. Further, the ALJ failed to identify how the RFC factored in any limitations arising from Montanez's medically determinable stress incontinence and urinary frequency, or otherwise explain why added restrictions, such as the related need for regular bathroom breaks, were not necessary. See Depew v. Colvin, No. 3:16-CV-1376, 2017 WL 372238, at *6 (M.D. Pa. Jan. 26, 2017) (finding that the RFC determination was not supported by substantial evidence when the ALJ failed to properly account for the effects of plaintiff's frequent urination and fecal incontinence, which, if credited, would have exceeded "routine and customary rest breaks" and supported a finding of disability); Oakes v. Colvin, No. 15-507, 2016 WL 4581347, at *9 (W.D. Pa. Sept. 1, 2016) (remanding decision when the RFC assessment did not address "whether and to what extent [plaintiff's] impairments would require the need for any additional bathroom breaks," despite finding that plaintiff's reported use of the bathroom "85% of the day" was not entirely credible); see also Naviglia v. Colvin, No. CV 15-660, 2016 WL 4733174, at *4 (W.D. Pa. Sept. 9, 2016) (the RFC "is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work-setting on a regular and continuing basis, which means '8 hours a day, for 5 days a week, or an equivalent work schedule.'" (quoting SSR 96-8p) (emphasis added)); cf. Taylor v. Barnhart, 474 F. Supp. 2d 650, 665 (D. Del. 2007) ("The question of how plaintiff's fistula affects her ability to perform basic tasks is different from how plaintiff's fistula affects her workplace attendance, such as unexcused breaks and absences. The latter inquiry is addressed as part of plaintiff's residual functional capacity."). Therefore, regardless of whether Montanez's conditions were erroneously considered non-severe impairments at Step Two, the Court is of the opinion that the RFC assessment is not supported by substantial evidence.
For these reasons, it is respectfully recommended that the Commissioner's final decision be VACATED and REMANDED for further review and explanation. V. REMEDY
Because the Court has found a clear basis for remand on these grounds, it declines to address Montanez's remaining limitations set forth in the second contention of error. The Court also declines to consider Montanez's other allegations of error on appeal. To the extent that any other error occurred, it may be remedied on remand.
The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the case for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991). However, the Third Circuit has advised that benefits should only be awarded where "the administrative record of the case has been fully developed and when substantial evidence in the record as a whole indicates that the claimant is disabled and entitled to benefits." Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). See generally Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ( "[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."). Because the Court concludes that the ALJ failed to properly consider all of Montanez's impairments, including the impact of her non-severe impairments, in the RFC assessment, the undersigned United States Magistrate Judge respectfully recommends that further development of the record is necessary, and that the decision of the Commissioner be VACATED and that the case be REMANDED. VI. RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision be VACATED, and that the case be REMANDED to the Commissioner to fully develop the record, conduct a new administrative hearing, and appropriately evaluate the evidence pursuant to sentence four of 42 U.S.C. § 405(g). It is further recommended that the Clerk of Court be directed to CLOSE this case.
Dated: August 19, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 19, 2019. 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: August 19, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge