Opinion
No. 3:17-cv-01164
08-02-2018
CHRISTINA M. PASANEN, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Conner, C.J.)
()
REPORT AND RECOMMENDATION
This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Deputy Commissioner of Social Security's ("Deputy Commissioner") final decision denying Christina M. Pasanen's ("Pasanen") claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition 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 stated herein, we respectfully recommend that the decision of the Commissioner be REMANDED. I. Background and Procedural History
Pasanen is an adult individual born December 27, 1976, who was 34 years old at the time of her alleged onset date of disability - June 30, 2014. Pasanen's age at the onset date makes her a "younger person" under the Social Security Act. See 20 C.F.R. §§404.1563(c), 416.963(c). Pasanen has at least a high school education and has previously worked as a medical assistant and a certified nursing assistant. (Tr. 27).
On July 31, 2014, Pasanen protectively filed for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (Tr. 17). In both applications, she alleged that her onset date of disability was June 30, 2011. (Tr. 17). In her application, Pasanen reported that the following impairments prevent her from being able to work: ulcerative colitis ("UC"), irritable bowel disease, Crohn's disease, depression, and anxiety. (Tr. 189).
Pasanen's claims were initially denied on November 12, 2014. On January 2, 2015, she filed a timely request for an administrative hearing that was subsequently granted. Pasanen appeared and testified before Administrative Law Judge ("ALJ") Daniel Balutis on September 27, 2016, in Scranton, Pennsylvania and was represented by counsel, Patrick J. Best, throughout the proceeding. In addition, impartial vocational expert ("VE") Carmine Abraham also appeared and testified during the administrative hearing. (Tr. 17). At the time of the administrative hearing, Pasanen was 39 years old and resided in Effort, Pennsylvania, which is in the Middle District of Pennsylvania.
In a written decision dated October 21, 2016, the ALJ denied Pasanen's application for benefits. (Tr. 29). Subsequently, Pasanen filed a request for review of her claims by the Appeals Council, which was denied on June 1, 2017. (Tr. 1). This makes the ALJ's October 21, 2016 decision the final decision subject to judicial review by this Court.
Pasanen filed a timely complaint in this Court on July 3, 2017. (Doc. 1). In her complaint, Pasanen asserts that the final decision of the Commissioner is not supported by substantial evidence and contains errors of fact and law. (Doc. 1).
On December 12, 2017, the Commissioner filed her answer, in which, she maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 7). This matter has been fully briefed by the parties and is ripe for decision. (Docs. 9, 10, 11).
Pasanen is a divorced mother of four who has been treated for ulcerative colitis ("UC") since she was 12 or 13 years old, (Tr. 91, 650), and who has gone the emergency room various times with complaints of abdominal pain and other symptoms associated with her colon issues. (Tr. 311-392, 506-511).
It is not clear when Pasanen started treating with gastroenterologist Dr. Paul E. Niezgoda ("Dr. Niezgoda"), but the earliest treatment records provided by Pasanen date back to May 21, 2013. (Tr. 270). On October 16, 2013, Dr. Niezgoda assessed that in addition to Pasanen's UC, she was suffering from irritable bowel syndrome ("IBS"). (Tr. 265). On July 31, 2014, Pasanen's primary care physician, Dr. Raymond Decesare ("Dr. Decesare"), noted that Pasanen's UC and IBS were verified by biopsy and that she had been having frequent severe abdominal pain, loose stools, and weakness. (Tr. 298). Dr. Decesare also noted that Pasanen stays active by running four miles a day and biking. (Tr. 298).
On September 30, 2014, Dr. Niezgoda performed a colonoscopy on Pasanen and noted that there were no significant pathologic changes to her colon. (Tr. 543-545). On July 30, 2015, Pasanen had an appointment with Dr. Niezgoda because of a flare up in the frequency at which she was having loose stools during the day, and because she was having loose stools during the night. (Tr. 638). Dr. Niezgoda noted that this flare seemed to be attributed to her IBS. (Tr. 640).
On March 16, 2016, Pasanen treated with her new gastroenterologist, Dr. John Anthony Boger ("Dr. Boger"), for her UC and IBS. (Tr. 650). Dr. Boger noted at this appointment that Pasanen had three colonoscopies in the Geisinger Medical network since 2009, and that all three showed that Pasanen's UC was in remission. (Tr. 650). Dr. Boger further opined that based on an endoscopy from September 2014, he considered Pasanen's UC to actually be in a deep state of remission. (Tr. 650). He therefore concluded that the symptoms about which Pasanen was complaining were due to her IBS, and that she would need colonoscopies every other year, starting in the year 2017. On June 3, 2016, Dr. Boger administered another colonoscopy to Pasanen (Tr. 663), which showed that the mucous membranes in her colon had "mild regenerative/surface hyperplastic changes and no other significant histopathological changes." (Tr. 669). That same day, Dr. Boger also administered an upper GI endoscopy to Pasanen, which showed that Pasanen had an irregular Z-line but her stomach, duodenum, and esophagus were normal. (Tr. 677).
During the administrative hearing, Pasanen testified that Dr. Boger was her new treating gastroenterologist because Dr. Niezgoda had passed away. (Tr. 95-96). --------
On August 5, 2016, Dr. Boger completed a Crohn's and Colitis Medical Source Statement, in which, he opined that because of Pasanen's chronic diarrhea, she would need a job that permits ready access to a restroom, and she would need to take two to four unscheduled restroom breaks per work shift. (Tr. 556). Dr. Boger further noted that Pasanen has less than a minute's notice of her sudden need to use a restroom, (Tr. 557), and that these symptoms seem to all stem from her IBS because her UC is in deep remission. (Tr. 558).
At the administrative hearing, Pasanen testified that she would rate the pain that she feels in her abdomen and colon as a six out of ten on the pain scale but that she cannot take pain medication for it because it could paralyze her intestine. (Tr. 74-75). She also alleged that on average she has to rush to the bathroom seven or eight times during the day (Tr. 93), and has to get up from bed about seven or eight times during the night to use the bathroom. (Tr. 89).
Additionally, we note that Pasanen has been treated for several other medical issues; however, she has failed to develop the record concerning them. These issues are as follows: a knee contusion, (Tr. 410), a distal fibular fracture, (Tr. 574), a proximal fibular diaphyseal fracture, (Tr. 601), left leg pain, (Tr. 565), depression, generalized anxiety disorder, and post-traumatic stress disorder. (Tr. 536-541, 678-711). II. Legal Standards
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); 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). 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 whether the Commissioner's finding that the claimant 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 . . . .").
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 also 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 three and four, the ALJ must also assess a claimant's 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).
At steps one through four, 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 five 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. Com. 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 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), 416.927(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. §§404.1527(c), 416.927(c).
In deciding what weight to accord to competing medical opinions, the ALJ is guided by factors outlined in 20 C.F.R. §404.1527(c) and 20 C.F.R. §416.927(c). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2) (explaining what is required for a source's opinion to be controlling).
Where no medical 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 opinion: 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), 416.927(c).
Furthermore, the ALJ's articulation of the weight accorded to each medical opinion must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. This principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §§404.1527(c)(2), 416.927(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). III. Discussion
In his October 21, 2016 decision denying Pasanen's claim, the ALJ evaluated Pasanen's application for benefits at each step of the sequential process. At step one, the ALJ found that Pasanen did not engage in substantial gainful activity since June 30, 2011. (Tr. 19). At step two, the ALJ found that the following impairments were medically determinable and severe during the relevant period: generalized anxiety disorder, post-traumatic stress disorder, depression, irritable bowel syndrome, fracture of the left proximal fibula, and fracture of the distal left fibula. (Tr. 19). At step three, the ALJ found that Pasanen did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant period. (Tr. 20).
Between steps three and four, the ALJ assessed Pasanen's RFC. The ALJ found that Pasanen had the capacity to perform light work as defined in 20 C.F.R. §§404.1567(c) and 416.967(c) with the following limitations:
[Pasanen] can lift and carry, as well as push and pull, 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk for six hours each during an eight-hour workday; occasionally climb ramps, stairs, ladders, ropes, or scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. Further, [Pasanen] is limited to performing simple routine tasks with frequent contact with coworkers and the public. Additionally, she is limited to occasional change in the routine work setting.(Tr. 23).
At step four, the ALJ found that Pasanen was unable to perform her past relevant work as a medical assistant, classified as light in skill and medium in exertion, and a certified nursing assistant, classified as semi-skilled medium work. (Tr. 27). At step five, the ALJ determined based on Pasanen's age, education, work experience, and RFC, that there are a significant number of jobs in the national economy that Pasanen can perform, including an inspector, a cashier, and a products assembler. (Tr. 28-29).
Pasanen contends that the decision of the ALJ is not supported by substantial evidence of record and raises two issues on appeal. Specifically, Pasanen asserts that (a) the ALJ erred by rejecting the opinion of Pasanen's treating gastroenterologist; and (b) the ALJ failed to properly develop the record because he failed to grant Pasanen's request for a consultative examination. We shall address each argument seriatim.
a. The ALJ's RFC is not supported by substantial evidence.
Pasanen asserts that the ALJ erroneously rejected treating physician Dr. Boger's opinion and argues that this rejection implies that the ALJ used his own lay opinion in formulating the RFC. (Doc. 9, at 6-7). The part of Dr. Boger's opinion about which Pasanen is concerned is his statement that Pasanen would need a job that permits ready access to a restroom and two to four unscheduled restroom breaks per shift. (Doc. 9, at 15). It appears that the Commissioner misinterprets Pasanen's argument because, the Commissioner states that Pasanen's "only argument is that the ALJ did not properly evaluate her IBS complaints and any alleged limitations resulting therefrom." (Doc. 10, at 10). The Commissioner maintains that this argument is without merit because plaintiff's allegations are not borne out by the record. (Doc. 10, at 10).
We find that that there is more at issue here than a simple disagreement over the ALJ's evaluation of Pasanen's alleged symptoms. Dr. Boger opined in a Medical Source Statement that Pasanen has various limitations, which include the limitation that Pasanen needs special accommodations at work that will allow her ready access to the restroom. (Tr. 555-558). The ALJ noted that he gave partial weight to this Medical Source Statement but failed to explain how partial weight was allotted to Dr. Boger's opinion. Because of this lack of explanation, Pasanen argues that it was error for the ALJ to fail to discuss why he did not adopt any limitations regarding Pasanen's need for ready access to a restroom during work. (Doc. 9, at 11). We agree.
The frequency and urgency of Pasanen's need to use the restroom is a key limitation relating to Pasanen's ability to work. We take issue not only with the fact that the ALJ failed to address this limitation in his rejection of Dr. Boger's opinion, but that he also failed to discuss it at any point in his decision. The ALJ only explained why he generally found that Pasanen's symptoms are not as severe as she alleges. (Tr. 24-25). Though the ALJ's explanation is in part necessary and helpful discussion, we are constrained to find that it is vague because the ALJ failed to directly address the implications of the evidence upon which he relies with regard to the critical limitation at issue - how often and how urgently Pasanen would need to use the restroom due to the sudden onset of diarrhea.
Even if Pasanen does not need to use the restroom as often as she alleges, or as often as Dr. Boger opined, the VE's testimony at the administrative hearing indicated that Pasanen's ability to maintain gainful employment will still be impacted by her IBS. At the administrative hearing, the VE was asked if there would be any work in the national economy for a person who required one extra ten minute break, in addition to the normal half hour lunch break and two 15 minute breaks granted to workers. (Tr. 105). The VE was also asked whether there would be any work in the national economy for a person who required no breaks in addition to the normal half hour lunch and two 15 minute breaks granted to workers, however, those breaks would be unpredictable and would need to be taken at a moment's notice for use of the bathroom. (Tr. 106-107). To both of these questions, the VE answered that there would be no employment available for such a person. (Tr. 106, 107). The VE explained that the allowance of such breaks would be a special accommodation granted by an employer. (Tr. 106, 107).
In light of this testimony, it appears that regardless of whether the ALJ gave Dr. Boger's statement great weight or little weight, it was imperative for the ALJ to specifically address in the RFC the frequency at which Pasanen needs to use the restroom during the course of the work day.
As we noted earlier, Pasanen asserts that the ALJ used his own lay opinion in formulating the RFC with regard to Pasanen's IBS. (Doc. 9, at 7, 12). We agree that in this case the absence of any limitation regarding Pasanen's IBS in the RFC, or any explanation of how the medical evidence of record indicates that Pasanen does not experience IBS symptoms that call for a limitation in the RFC, gives the impression that the ALJ used his own lay interpretation of the medical evidence in formulating the RFC.
It is well established in the Third Circuit that the ALJ may not dismiss a treating physician's "medical opinion based solely on his own amorphous impressions, gleaned from the record and from his evaluation of [the claimant]'s credibility." Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)) (internal quotations omitted). Furthermore, "[i]n 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." Id. at 317-318 (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)).
Here, the reasoning that the ALJ provides for only giving partial weight to Dr. Boger's opinion is that:
[t]reatment records from July of 2015 noted that [Pasanen] had increased her Balsalazide, which had 'seemed to help.' An examination demonstrated no apparent distress, mild abdominal tenderness in the left lower quadrant, normal bowel sounds, and no guarding or rebound . . . Treatment records from March of 2016 noted that [Pasanen] was a runner and exercised frequently. Further, a review of systems was negative for nausea, vomiting, diarrhea, and constipation. Further an examination demonstrated no abdominal tenderness and normal extremities. More recently, a flexible sigmoidoscopy obtained in June of 2016 demonstrated normal findings. Further, an upper gastrointestinal endoscopy revealed irregular z-line and otherwise normal findings.(Tr. 26) (internal citations omitted).
Though this explanation contains a significant quantity of evidence concerning Pasanen's bowels, we do not understand how such evidence necessarily negates Dr. Boger's opinion that Pasanen needs ready access to a restroom during the work day, or how such evidence speaks to how often Pasanen might suddenly need to use the restroom. We believe that further explanation is warranted because the ALJ recognizes, and the record demonstrates, that Pasanen suffers from IBS. Indeed, the ALJ found at step two that Pasanen's IBS is a severe impairment that affects her ability to perform work related activities. (Tr. 20). This implies that the ALJ agreed that Pasanen has symptoms of IBS, but that because of his rejection of Dr. Boger's opinion, he found that Pasanen's symptoms were not consistent with Dr. Boger's findings. This begs the question, how does the evidence upon which the ALJ relied in his decision indicate that Pasanen does not need ready access to the restroom two to four times per work shift?
Though Dr. Boger only recently became Pasanen's treating gastroenterologist, (Tr. 95-96), he is a specialist who had treated Pasanen and had reviewed Pasanen's medical history before he opined on Pasanen's condition. (Tr. 650). Dr. Boger found that Pasanen needs accomodations despite her normal colonoscopy findings and her regular exercise routine. Without another medical opinion interpreting the medical tests of record differently from Dr. Boger, it gives the impression that the ALJ might be interpreting medical tests on his own. What further causes us to doubt the basis of the ALJ's RFC, is that Pasanen points to sources in her brief who state that colonoscopies are performed on people with IBS symptoms in order to rule out colon cancer or inflammatory bowel disease as the cause of their symptoms, and that such procedures are not done to evaluate the severity of a person's IBS. (Doc. 9, at 9).
Because these details give the impression that the ALJ possibly used his own lay interpretation of medical tests as evidence that discredited Dr. Boger's medical opinion, we find that the ALJ's explanation for the rejection of Dr. Boger's opinion does not suffice. Under Cotter, the ALJ is required to provide "a clear and satisfactory explication of the basis" of the weight he accorded to each opinion. 642 F.2d at 704. We cannot say that the ALJ's explanation is clear or satisfactory when he has failed to explain how the evidence to which he referred demonstrates that Pasanen does not need to use the bathroom as frequently and urgently as Dr. Boger opines. Thus, we find that remand is necessary so that the ALJ can properly explain why he specifically rejected Dr. Boger's opinion concerning Pasanen's need to access a restroom, and address in the RFC the issue of how often and how urgently Pasanen would need to use the restroom based on the evidence of record.
b. It is within the ALJ's discretion to decide whether to recontact Dr. Boger or order a consultative examination.
There are two additional arguments that Pasanen makes, which can be addressed jointly. First Pasanen asserts that in assessing Dr. Boger's opinion, the ALJ was obligated to recontact Dr. Boger about any doubts that the ALJ had about the opinion. (Doc. 9, at 9-10). Second, Pasanen asserts that it was error for the ALJ to deny her request for a consultative examination, and in denying this request, the ALJ failed to properly develop the record. (Doc. 9, at 15). As is demonstrated in the preceding discussion, we agree that further development is needed with regard to the impact of Pasanen's IBS on her ability to work.
The regulations instruct that there are situations that may require an ALJ to order a consultative examination. 20 C.F.R. §§404.1519a(b), 416.919a(b). Such situations occur when there is "an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow [the ALJ] to make a determination or decision on [a] claim." Id. However, 20 C.F.R. §§404.1520b and 416.920b instruct that when there is an inconsistency or insufficiency of evidence, it is within the ALJ's discretion to decide the necessary course of action to resolve such an issue. 20 C.F.R. §§404.1520b(c), 416.920b(c). Included in the list of possible actions to take are the options to recontact the opining physician and/or order a consultative examination. 20 C.F.R. §§404.1520b(c)(1), 404.1520b(c)(3), 416.920b(c)(1), 416.920b(c)(3). The failure of the ALJ to address the critical issue of Pasanen's unpredictable need to use the restroom, and the absence of an explanation of the medical evidence upon which he relies in rejecting Dr. Boger's opinion, indicate that more is required on the part of the ALJ in explaining his RFC. If the ALJ cannot sufficiently formulate an RFC addressing the urgency and frequency of Pasanen's need to use the restroom with the evidence of record thus far, we agree that further development of the record is necessary. Because the regulations state that it is within the ALJ's discretion to decide what course of action he will take in resolving a deficiency or inconsistency in the evidence, we will leave it to him to decide whether he should contact Dr. Boger and/or order a consultative examination in order to remedy the RFC on remand. IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be VACATED and this case be REMANDED to the Commissioner for further proceedings consistent with this report.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge Dated: August 2, 2018 NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 2, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: August 2, 2018