Opinion
CIVIL ACTION NO. 3:18-CV-01590
08-12-2019
ANDREW SHERRARD, Plaintiff v. ANDREW SAUL, Defendant
(MARIANI, 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 Andrew Sherrard's claims for a period of disability and disability insurance benefits ("DIB") under Title II 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. I. BACKGROUND AND PROCEDURAL HISTORY
On April 09, 2012, Plaintiff Andrew Sherrard ("Sherrard") filed applications for both Title II and Title XVI benefits. (Doc. 8-5, at 2, 7). In this application, Sherrard claimed disability beginning September 1, 2006. (Doc. 8-5, at 2, 7). Sherrard was awarded benefits under Title XVI as of March 1, 2012, however, his Title II claim was denied by the Social Security Administration on August 13, 2012. (Doc. 8-4, at 2). Sherrard filed a request for a hearing before an Administrative Law Judge ("ALJ") on October 08, 2012. (Doc. 8-4, at 6). The hearing was held on September 25, 2013 before ALJ Jarrod Tranguch. (Doc. 8-2, at 36-66).
In a written opinion dated February 11, 2014, the ALJ determined that Sherrard was not disabled and therefore not entitled to the benefits sought. (Doc. 8-2, at 18). Sherrard appealed the decision of the ALJ to the Appeals Council, who, on May 20, 2015, denied Sherrard's request for review. (Doc. 8-2, at 2). Sherrard initiated an action in the United States District Court for the Middle District of Pennsylvania, which resulted in the case being remanded to the Commissioner of Social Security for further administrative proceedings. (Doc. 8-18, at 42-43). The Appeals Council then vacated the final decision of the Commissioner of Social Security on March 29, 2016, and remanded the case as follows:
The Appeals Council hereby vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for resolution of the following issue:
The claimant filed for both Title II and Title XVI disability benefits, alleging he became disabled on September 1, 2006.
The State agency determined that the claimant became disabled for purposes of Title XVI supplemental security income on March 1, 2012 based on the opinion of the State agency medical consultant who indicated the claimant's visual impairment met listing level for blindness in the right eye with impaired vision and decreased fields in left eye but not to listing level (Exhibits 1A; 3A, page 8).
The hearing decision, which covered the period beginning on September 1, 2006 and ending on March 31, 2010, found the claimant not disabled for purposes of Title II disability insurance because he did not have a severe impairment or combination of impairments prior to his date last insured due to the lack of corroborative medical evidence (Decision, pages 4 and 7). However, the record reflects that the claimant received treatment for a degenerative eye condition that began sometime in 2006 (Exhibits 10F, 11F, 13F, 16F). Evidence from a medical expert is necessary to assist in clarifying the nature and severity of the claimant's visual impairment in light of the progressive nature of glaucoma and whether an earlier onset is warranted given the evidence not reviewed by the State agency medical consultants when they reviewed the file and the consultative examiner's diagnosis of advanced glaucoma in both eyes on June 22, 2012 (Exhibit 2F).
Upon remand, the Administrative Law Judge will:
• Obtain additional evidence concerning the claimant's physical impairments for the period of September 1, 2006 through March 31, 2010, in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513). The additional evidence may include, if warranted and available, a consultative examination and medical source statements about what the claimant can still do despite the impairment.
• Obtain evidence from a medical expert to clarify the date of onset of disability (20 CFR 404.1527(e) and Social Security Ruling 83-20).
• Further evaluate the nature and severity of the claimant's impairments, in particular the claimant's visual impairments.
• If warranted, proceed with the sequential evaluation under 20 CFR 404.1520 and 416.920.
In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record, and issue a new decision through the date last insured.
(Doc. 8-18, at 42-43).
In accordance with the Appeal Council directive, a hearing was held before ALJ Jarrod Tranguch on September 14, 2016. (Doc. 8-18, at 45-55). In a written opinion dated May 02, 2018, the ALJ determined that Sherrard was not disabled and therefore not entitled to the benefits sought. (Doc. 8-18, at 15). On August 10, 2018 Sherrard filed the instant action in federal court. (Doc. 1). The Commissioner responded October 25, 2018 providing the requisite transcripts from the disability proceedings. (Doc. 7); (Doc. 8). The parties then filed their respective briefs, with Sherrard alleging four errors warranted reversal or remand. (Doc. 11); (Doc. 13). II. THE ALJ'S DECISION
In a decision dated May 02, 2018, the ALJ determined Sherrard "has not been under a disability, as defined in the Social Security Act, at any time from September 1, 2006, the alleged onset date, through March 31, 2010, the date last insured." (Doc. 8-18, at 15). The ALJ reached this conclusion after denying Sherrard's claim at step two of the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. § 404.1520. The ALJ also determined that Sherrard met the insured status requirements of the Social Security Act on March 31, 2010. (Doc. 8-18, at 8).
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). 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). SGA is defined as work activity—requiring significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574. Here, the ALJ determined Sherrard "has not engaged in [SGA] during the period from his alleged onset date of September 1, 2006, through his date last insured of March 31, 2010." (Doc. 8-18, at 8). 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)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits [their] 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. § 1520(c). If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step. Here, the ALJ found that through the date last insured Sherrard's history of Bell's Palsy and status-post corneal transplant rose to the level of a medically determinable impairment. (Doc. 8-18, at 9). However, after considering the available medical and other evidence, the ALJ found these impairments were non-severe prior to the date last insured. (Doc. 8-18, at 12). The ALJ also considered Sherrard's gout, arthritis, and COPD at step two, but found they were not medically determinable impairments during the relevant period. (Doc. 8-18, at 13).
As a result of this analysis, the ALJ determined that Sherrard failed to demonstrate that he suffered from a "severe" impairment or combination of impairments. The ALJ thus found that Sherrard was not disabled and denied his application for DIB benefits at step two of the sequential evaluation process. (Doc. 8-18, at 9-15). 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). 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). 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). 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).
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. 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 the Court, therefore, is not whether Sherrard is disabled, but whether the Commissioner's finding that Sherrard 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
Sherrard advances four main arguments on appeal. First, Sherard asserts that the ALJ erroneously failed to consider his COPD and arthritis as severe impairments at Step Two. (Doc. 11, at 8-9). Second, Sherrard argues that the ALJ erred in giving limited weight to the medical source statement provided by treating physician, Dr. Kanouse. (Doc. 11, at 9-12). Third, Sherrard contends that the ALJ failed to properly consider his allegations regarding the onset date of his disabling condition. (Doc. 11, at 12-14). Finally, Sherrard claims that the ALJ erred in failing to have a physical examination undertaken to determine the onset date of his severe impairments. (Doc. 11, at 15).
As a preliminary matter, to receive benefits under Title II of the Social Security Act, "a claimant must show that he was insured under the program at the time of onset of his disability." Kane v. Heckler, 776 F.2d 1130, 1131 n. 1 (3d Cir.1985) (citation omitted); see also 20 C.F.R. §§ 404.10, 404.315. Further, a claimant must demonstrate the existence of an impairment that "precluded h[im] from performing substantial gainful activity for a continuous period of twelve months prior to the expiration of h[is] insured status." See Kelley v. Barnhart, 138 F. App'x 505, 507 (3d Cir. 2005). For the purposes of the benefits he seeks under the DIB program, it is undisputed that Sherrard's insured status expired on March 31, 2010. (Doc. 11, at 4); (Doc. 13, at 7). As such, the relevant disability period in this case is September 1, 2006—the date of Sherrard's alleged disability onset—through March 31, 2010—the date of his insured status expiration (the "Relevant Period").
For DIB to be awarded, Sherrard thus bears the burden of showing that he became disabled on or before March 31, 2010. See 20 C.F.R. §§ 404.101(a), 404.131(a); see also Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.1990) (observing that a claimant is required to establish that she became disabled prior to the expiration of her insured status). On remand from the Appeals Council, the ALJ determined that Sherrard "did not have an impairment or combination of impairments that significantly limited the ability to perform basic work-related activities for 12 consecutive months" during the Relevant Period. Given this conclusion, the ALJ did not continue through the sequential evaluation process and denied Sherrard's DIB claim at step two. The primary issue before the Court, then, "is whether the ALJ's step-two determination is supported by substantial evidence." See Kelley, 138 F. App'x at 508.
In support of his appeal, Sherrard contends that the ALJ erroneously failed to consider his COPD and arthritis as severe impairments. (Doc. 11, at 8). As mentioned supra, at step two the 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. This severity inquiry is a de minimis screening device used to discard meritless claims. See Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003); McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004). 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.
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).
Further, to qualify as "severe," the impairment, or combination of impairments, must "significantly limit[] [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). According to SSR 85-28, examples of basic work activities include:
[W]alking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgement, responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting.
SSR 85-28, 1985 WL 56856 (Jan. 1, 1985).
An impairment is not considered severe, however, if it only presents a "slight abnormality" that has "no more than a minimal effect on [a claimant's] ability to work." Newell, 347 F.3d at 546.
The burden of showing the severity of an impairment at step two rests with a claimant. Bowen, 482 U.S. at 146 n. 5. This burden is "not an exacting one," and "[a]ny doubt as to whether a showing has been made is to be resolved in favor of the applicant." McCrea, 370 F.3d at 360. Accordingly, the Third Circuit has held that "[t]his step should be 'rarely utilized' to deny benefits." Kinney v. Comm'r of Soc. Sec., 244 F. App'x 467, 469 (3d Cir. 2007) (citing McCrea, 370 F.3d at 361). "Due to this limited function, the Commissioner's determination to deny an applicant's request for benefits at step two should be reviewed with close scrutiny." McCrea, 370 F.3d at 360.
SSR 85-28 similarly cautions that:
A claim may be denied at step two only if the evidence shows that the individual's impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the person's physical or mental ability(ies) to perform basic work activities. If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.
. . .
Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step. Rather, it should be continued.
SSR 85-28, 1985 WL 56856 (Jan. 1, 1985)
Here, the ALJ found that Sherrard's history of Bell's Palsy and status-post corneal transplant, while medically determinable, were non-severe impairments during the Relevant Period. (Doc. 8-18, at 9). The ALJ further noted that "treatment for the claimant's gout, arthritis and COPD occurred well beyond the date last insured, as did the claimant's initial diagnoses for these conditions." (Doc. 8-18, at 13). Therefore, the ALJ concluded that these impairments were not medically determinable during the Relevant Period. (Doc. 8-18, at 9, 13). Sherrard maintains, however, that the record demonstrates his COPD and arthritis were indeed severe impairments. (Doc. 11, at 8).
In support of his argument, Sherrard cites to the following records from outside the Relevant Period: (1) clinical notes from November 22, 2000, which indicate that Sherrard's past medical history includes hypertension and arthritis (Doc. 8-16, at 37); (2) Dr. Kanouse's progress notes from July 14, 2011, which includes a diagnosis of COPD (Doc. 8-11, at 2); (3) Geisinger Medical Center progress notes from December 21, 2011, which include prescriptions for Hydrocodone Acetaminophen 10-650 (an opioid pain medication) and Indomethacin (an anti-inflammatory medication) under Sherrard's list of outpatient medications (Doc. 8-7, at 15); (4) Geisinger Medical Center progress notes from December 21, 2011, which include a review of systems notation that Sherrard is positive for COPD and arthritis (Doc. 8-7, at 20); and (5) Dr. Malyakkal J. John's consultative examination notes from June 14, 2012, which assessed Sherrard with a progressive worsening of shortness of breath on exertion as well as a history of arthritis (Doc. 8-10, at 25). (Doc. 11, at 8). Sherrard also points to his hearing testimony, during which he stated that his breathing and arthritis had become progressively worse over the years, that standing for twenty minutes caused his feet to feel as if they were on fire, and that he received pain medication for his arthritis and gout. (Doc. 8-2, at 53-59); (Doc. 11, at 9). Sherrard also testified that the stopped working as an HVAC tech in 2006 for the following reasons:
In his supporting brief, Sherrard states that he was unable to obtain several medical records from within the Relevant Period. Specifically, Sherrard explains:
A great difficulty in this case was the inability of the Claimant to obtain medical records from providers in the Baltimore area that treated him while he resided there prior to 2011. Most of the records in this matter were from either after 2011 (R. 167- 397) or from 2004/2005 (R. 398-444). The Claimant's medical providers were either unresponsive or out of business which in turn made obtaining the relevant records impossible.
(Doc. 11, at 8).
In response, the Commissioner notes that Geisinger Medical Center obtained various treatment records from the University of Maryland during the Relevant Period. (Doc. 13, at 13). As such, the Commissioner argues this supports the inference that "whatever medical records created during [Sherrard's] time in Baltimore were identifiable and capable of being secured." (Doc. 13, at 13-14).
I couldn't handle going down steps and things into basements, and changing lighting, I couldn't see what I was doing real well. It was getting difficult carrying toolboxes and things back and forth and up and down. It was hard to breathe. It was just really rough.
(Doc. 8-2, at 54).
Given this evidence, Sherrard argues that his COPD and arthritis present "more than a slight abnormality," and should be considered severe impairments at step two. (Doc. 11, at 9). In response, the Commissioner asserts that Sherrard cannot refute the fact that there are no medical signs or laboratory findings to demonstrate that his arthritis and COPD were medically determinable impairments during the Relevant Period. (Doc. 13, at 13). The Commissioner cites to SSR 16-3p for this proposition, which provides: "an individual's symptoms, such as pain, fatigue, shortness of breath, weakness, nervousness, or periods of poor concentration will not be found to affect the ability to perform work-related activities for an adult . . . unless medical signs or laboratory findings show a medically determinable impairment is present." (Doc. 13, at 13).
The Commissioner argues that, based on the records Sherrard cites to, his COPD and arthritis did not result in any functional limitations that impacted his ability to work. (Doc. 13, at 14-15). However, the ALJ did not make such observations in the opinion. Accordingly, the Court does not find the Commissioner's argument on this point to be persuasive. See Schuster v. Astrue, 879 F. Supp. 2d 461, 466 (E.D. Pa. 2012) ("The ALJ's decision must stand or fall with the reasons set forth in the ALJ's decision; the Commissioner may not offer a post-hoc rationalization." (citing Keiderling v. Astrue, No. Civ.A. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008)).
On June 14, 2018, the Social Security Administration rescinded several SSRs, including SSR 96-4p, because the rulings were considered "unnecessarily duplicative" of SSR 16-3p. See SSR 96-3P, 2018 WL 3461816 (June 14, 2018).
However, the record also contains a medical opinion from Sherrard's treating physician, Dr. Kanouse. (Doc. 8-22, at 2-5). Although Dr. Kanouse rendered this opinion on September 13, 2016, he affirmed that the symptoms and limitations described therein retroactively applied to Sherrard before the date last insured. (Doc. 8-22, at 5). Further, based on his diagnoses of COPD, osteoarthritis, gout, and impaired vision, Dr. Kanouse opined that Sherrard's impairments functionally limited his ability to engage in competitive work. (Doc. 8-22, at 2-5). Thus, if credited, Dr. Kanouse's opinion would substantiate Sherrard's argument that his alleged impairments had "more than a minimal effect on [his] ability to work" during the Relevant Period. Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003).
Despite this evidence as to the severity of Sherrard's impairments, the ALJ discounted Dr. Kanouse's opinion by giving it limited weight. (Doc. 8-18, at 14). The ALJ noted that despite claiming he treated Sherrard as of February of 2009, the available medical records reflected that such care commenced in July of 2011. (Doc. 8-18, at 14). The ALJ also observed that Dr. Kanouse's retroactive disability opinion is "not supported by discernable medical findings throughout the records and appears speculative, at best (based upon the medical records in the evidentiary file)." (Doc. 8-18, at 14). The Commissioner thus argues that Dr. Kanouse's opinion was inconsistent with the available medical record evidence, and properly discounted by the ALJ under the Regulations. (Doc. 13, at 15-19).
Nonetheless, given the Third Circuit's tenet that "[a]ny doubt as to whether a [severity] showing has been made is to be resolved in favor of the applicant," the Court is not persuaded that the ALJ's decision at step two is supported by substantial evidence. See McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). Specifically, in finding that Sherrard did not suffer from a severe impairment, or combination of impairments, that was attributable to his COPD and arthritis, the ALJ cited to a lack of contemporaneous medical records supporting Dr. Kanouse's conclusions. This, however, effectively imposed an exacting burden of proof at step two that went beyond the de minimis screening threshold, and rejected the notion that Sherrard's impairments, as opined by Dr. Kanouse, were more than a "slight abnormality." See McCrea, 370 F.3d at 360 ("The claimant's burden at step two is 'not an exacting one.'"); see also Slotcavage v. Berryhill, No. 3:18-CV-1214, 2019 WL 2521634, at *10 (M.D. Pa. June 3, 2019), report and recommendation adopted, No. 3:18-CV-1214, 2019 WL 2521223 (M.D. Pa. June 18, 2019) (by demanding independent documentary evidence to support medical source statement's finding that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1," the ALJ's "heightened level of scrutiny" did not comport with step two's severity test); Jefferson v. Colvin, No. 1:14-CV-910, 2015 WL 1912705, at *11 (M.D. Pa. Apr. 27, 2015) (noting that "the Administration's own rulings and regulations . . . provide that treating sources 'bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone,' and are entitled to deference even where their opinions are not accorded controlling weight." (citations omitted)). "Simply put, while this determination concerning the degree to which [Sherrard] is limited by th[ese] impairment may have been appropriate at the latter stages of th[e] sequential analysis, it was not proper at the outset of the evaluation of [hi]s claim." See Slotcavage, 2019 WL 2521634, at *10.
Additionally, the finding that all of Sherrard's alleged impairments were either non-medically determinable or non-severe cannot be deemed harmless error in this case. Indeed, had Sherrard credited Dr. Kanouse's opinion or otherwise found in his favor at step two, the evaluation of his DIB claim may have resulted in a different outcome. Thus, the Court does not find that the ALJ's decision at step two, which found that Sherrard's impairments were not medically determinable and accordingly not severe, is supported by substantial evidence. For these reasons, it is respectfully recommended that the matter be VACATED and REMANDED for further consideration. V. REMEDY
Because the Court has found a clear basis for remand on these grounds, it declines to address Sherrard's remaining allegations of error. 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's finding at step two is not supported by substantial evidence, 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 12, 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 12, 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 12, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge