Opinion
CIVIL ACTION NO.: 17-cv-01556
12-21-2018
JONATHAN ANGELO TROTTA, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
MEMORANDUM OPINION
Jonathan Angelo Trotta was denied Social Security benefits by the decision of an Administrative Law Judge ("ALJ"). Trotta contends that the ALJ's unfavorable decision was reached in error. Pl. Br. at 1. Trotta argues that the ALJ improperly: (1) disregarded Trotta's cognitive disorder, (2) rejected a medical expert's equivalency testimony, (3) failed to credit certain medical opinion evidence, and (4) omitted limitations in his hypothetical to the vocational expert. Id. at 6-20. The Acting Commissioner of Social Security ("Commissioner") responds that the ALJ's decision is supported by substantial evidence and should be affirmed. Def. Br. at 7-22.
After careful review, I find that the ALJ erred at step three, improperly rejecting the medical equivalency testimony and failing to support his determination with substantial evidence. The ALJ's error also undercut his step four and step five conclusions. Accordingly, Trotta's request for review is granted, and this matter is remanded to the Commissioner for an award of benefits in accordance with this opinion.
PROCEDURAL HISTORY
Trotta filed a claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") on March 13, 2012. Administrative Record ("R.") 75, 85. He alleged a disability onset date of March 2, 2010, and a date last insured of September 20, 2010. Id. His application initially was denied on June 21, 2012. R. 75-98. After this denial, Trotta requested an administrative hearing, which was held on November 6, 2013. R. 37. The hearing was continued pending an IQ test and additional evidence from a neurologist. R. 40. On May 22, 2014, the ALJ resumed the hearing, during which a medical expert, a vocational expert, and Trotta testified. R. 44-73. On June 3, 2014, the ALJ denied Trotta's SSI claim, finding he did not have a disability. R. 30. The Appeals Council subsequently denied Trotta's request for review. R. 1.
Trotta's application that was filed in March 2012 only indicated a request for SSI benefits. R. 227-32. The agency treated the application as a claim for both DIB and SSI, and denied both claims at the initial level. R. 75, 85. There seems to have been some confusion, at one point, as to whether the 2012 application constituted a claim for DIB and SSI (or just for SSI), but the parties currently agree that the application was for both types of claims. See Def. Suppl. Br. at 1. The Social Security Administration's policies indicate that an SSI application is generally also an application for DIB benefits, as Trotta's counsel has maintained throughout the course of litigation. See R. 870 (letter to ALJ from Trotta's attorney citing to POMS SI 00601.010(D)(1) and GN 00201.005(B)(7)). For purposes of this opinion, I will refer to Trotta's 2012 application as including both a claim for SSI and DIB.
To qualify for DIB benefits, a claimant's disability onset date must occur before the claimant's date last insured. Social Security Disability Claims: Practice and Procedure § 22:250 (2d ed. Nov. 2018 update) (citing to Ready v. Astrue, No. 10-134, 2011 WL 3555855 (W.D. Va. Aug. 11, 2011); Manson v. Comm'r of Soc. Sec., No. 12-11473, 2013 WL 3456960 (E.D. Mich. July 9, 2013), and Hurdis v. Colvin, No. 12-00601, 2014 WL 6982298 (W.D. Wis. Dec. 10, 2014)). Once a claimant qualifies for DIB benefits, the filing date of the claim becomes important to the calculation of the amount benefits to be awarded. The relevant statutes and regulations allow DIB benefits to be awarded starting as early as twelve months before the claim's filing date. See 42 U.S.C. § 423(b); 20 C.F.R. § 404.621(a)(1); see also Kaszer v. Massanari, 40 Fed. App'x 686, 688 (3d Cir. July 19, 2002) (not precedential).
Trotta's DIB claim was denied on res judicata grounds by the disability examiner because a prior application was denied in June 2011, alleging a disability onset date of March 1, 2010, and a date last insured of September 30, 2010. R. 75-84, 99, 101, 115. If a claimant files a successive application for benefits, the Social Security Administration ("SSA") has the authority to deny the later application on res judicata grounds. Kaszer, 40 Fed. App'x at 690 (not precedential) (citing to Purter v. Heckler, 771 F.2d 682, 691 (3d Cir. 1985)). Res judicata may apply to a claim if SSA has already "made a previous determination or decision under this subpart about your rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." Id. (quoting 20 C.F.R. § 404.957)). However, the agency is not required to assert res judicata, and may reopen an earlier claim in accordance with the regulations. See id. (citing to 20 C.F.R. § 404.988). For example, an earlier claim may be reopened within twelve months of the initial denial for "any reason." 20 C.F.R. § 404.988. Because Trotta filed his second DIB claim less than twelve months from his initial denial, the SSA could have applied res judicata or reopened the earlier claim for any reason. For a discussion on whether the ALJ de facto reopened Trotta's earlier DIB claim, see Section G, infra.
As for the DIB claim, Trotta filed a brief to the Appeals Council arguing that his 2012 SSI application was an application for DIB under the law and that the ALJ failed to consider this reopened claim. R. 368.
Following this denial, Trotta appealed to the Eastern District of Pennsylvania. Accepting and adopting the report and recommendation of the Magistrate Judge, the United States District Judge granted Trotta's request for review. R. 993. Upon remand, another hearing was held, where Trotta and a vocational expert testified. R.874-945. Following the hearing, the ALJ issued another unfavorable opinion dated January 5, 2017. R. 862. This appeal follows.
A different ALJ presided over Trotta's case after it was remanded from the District Court.
In cases where, as here, an ALJ makes a decision after remand from the federal district court, the decision is considered final (and thus again appealable to federal court) when no exceptions are filed and the Appeals Council does not assume jurisdiction. See 20 C.F.R. § 404.984.
This matter was originally referred to me for a report and recommendation. Doc. No. 18. On November 20, 2018, the parties filed a joint consent to a magistrate judge. Doc. No. 23. Judge Mitchell S. Goldberg referred this case to me for entry of judgment, pursuant to 28 U.S.C. § 636(c). Doc. No. 25.
FACTUAL BACKGROUND
Trotta's challenges to the ALJ's determinations focus on a small portion of a large record. Accordingly, I limit my recapitulation of the record to a discussion of the evidence helpful to the resolution of this dispute.
A. Claimant's Background
Trotta was born in April 1980, making him a "younger individual" under the Social Security regulations at all times relevant to his application. R. 75. Trotta completed the eleventh grade, never obtaining a high school diploma or a GED. R. 50, 884. In the past, Trotta has worked as a karate instructor, exterminator's helper, computer welder, waiter, material handler, garbage collector, security guard, and light fixture servicer. R. 29, 860.
Trotta represented that he failed the GED test twice—the first time by twenty-seven points and the second time by three points. R. 884.
The most recent ALJ's opinion limited Trotta's past relevant work to garbage collector, security guard, sports instructor, and light fixture servicer. R. 860.
Trotta applied for social security benefits on March 13, 2012, alleging disability based on a back injury, neck injury, anxiety, depression, and "[h]ole in the brai[n]." R. 75, 85.
B. The ALJ's Decision
On remand, the ALJ issued an unfavorable decision on January 5, 2017. R. 842-62. In reaching this decision, the ALJ made the following findings of fact and conclusions of law pursuant to Social Security's five-step sequential evaluation.
An ALJ evaluates each case using a sequential process until a finding of "disabled" or "not disabled" is reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful activity; (2) has a severe "medically determinable" physical or mental impairment or combination of impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed in the Social Security Regulations and mandate a finding of disability; (4) has the residual functional capacity to perform the requirements of his or her past relevant work, if any; and (5) is able to perform any other work in the national economy, taking into consideration his or her residual functional capacity, age, education, and work experience. See 20 C.F.R. § 416.920(a)(4)(i)-(v).
At step one, the ALJ concluded that Trotta has not engaged in substantial gainful activity since his alleged onset date of March 2, 2010. R. 845.
At step two, the ALJ determined that Trotta had six severe impairments: anxiety, depression, cervical degenerative disc disease, post-concussive syndrome and headaches, right knee degenerative joint disease, and a personality disorder. R.845-47. The ALJ found the following to be nonsevere impairments: substance addiction disorder, mild right carpal tunnel syndrome, and attention deficit hyperactivity disorder ("ADHD"). R. 846-47.
At step three, the ALJ compared Trotta's impairments to those contained in the "Listings." The ALJ concluded that none of Trotta's impairments, alone or in combination, met or equaled the criteria of any of the Listings. R. 847. Reaching this conclusion, the ALJ specifically ruled out Listing § 1.04 (relating to spine impairment), Listing § 1.02 (relating to knee impairment), and Listings §§ 12.02, 12.04, and 12.06 (relating to mental impairments). R. 847-54.
The regulations contain a series of "Listings" that describe symptomology related to various impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If a claimant's documented symptoms meet or equal one of the listed impairments, "the claimant is conclusively presumed to be disabled." Bowen v. Yuckert, 482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ determines whether the impairments assessed at step two preclude the claimant from performing any relevant work they may have performed in the past. Id.
The sequential evaluation then proceeded to step four, prior to which the ALJ determined Trotta's residual functional capacity ("RFC"). 20 C.F.R. § 416.945(a). To determine Trotta's RFC, the ALJ reviewed the available medical opinion evidence. Based on this review, the ALJ concluded that Trotta is able to perform sedentary work, with some exceptions. R. 854. These exceptions include:
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567.
[Trotta] can occasionally operate foot controls with his right foot, frequently operate hand controls with his right hand, frequently operate hand controls with his right hand, and frequently push and pull with his right upper extremity as much as he can lift and carry. He can frequently reach overhead with his right upper extremity, and frequently handle with his right hand. He can occasionally climb ramps and stairs; can never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; can occasionally tolerate exposure to unprotected heights, moving mechanical parts, operating a motor vehicle, humidity and wetness, extreme cold, extreme heat, and vibrations. He is limited to perform, use judgment, and tolerate occasional changes in a routine work setting defined
as that consistent with routine and repetitive tasks. Finally, he can occasionally interact with supervisors, coworkers, and the public.R. 854.
At step four, the ALJ found that Trotta is unable to perform any of his past relevant work. R. 860.
At step five, the ALJ identified three representative occupations that Trotta could perform based on his age, education, work experience, and RFC. R. 861. These jobs were inspector, assembler, and machine operator, each of which exists in significant numbers in the national economy. R. 861-62. Corresponding to Trotta's RFC, all three positions are performed at a sedentary exertional level. Id.
Because the ALJ identified jobs Trotta could perform, he ultimately found Trotta "not disabled." R. 862.
C. Dr. Braun's Testimony
At the administrative hearing held on May 22, 2014, the ALJ called Philip Braun, Ph.D., to testify as a medical expert. Dr. Braun testified that, based on his review of the record (including the IQ test results and history of head injuries), he believed Trotta's symptoms equaled Listing § 12.02 (relating to organic mental disorders). R.61-64. Dr. Braun's equivalency testimony was later dismissed by the ALJ in his decision denying benefits. Trotta contends that this rejection is reversible error. Pl. Br. at 9-12.
At the hearing, the ALJ questioned Dr. Braun about the validity of the IQ test results. R. 58. Dr. Braun noted that the administering psychologist, Dr. Langberg, stated that the results may not have truly reflected Trotta's intellectual ability. R. 58. Dr. Langberg cited Trotta's methadone usage before the test, the difficulty in assessing his level of effort (but "no evidence of an obvious attempt to do poorly"), and his anxiety. R. 58. With respect to Trotta's methadone usage, Dr. Braun had previously asked Trotta about the impact methadone has on his concentration. R. 57. Trotta responded, stating that it did not have any effect on him, as he has been taking it for three or four years. Id. Considering all of these concerns, Dr. Braun later "guesstimated" that Trotta's full-scale IQ was between seventy and eighty, rather than the sixty-three reported in the test results. R. 62-63. Nevertheless, Dr. Braun opined that Trotta's "symptom picture" was equivalent to Listing § 12.02. Id.
In response to Dr. Braun's equivalency testimony, the ALJ questioned Dr. Braun about the requirements for Listing § 12.02—querying Dr. Braun's opinion on the part B criteria. R. 64-65. Dr. Braun testified that Trotta had mild limitations in activities of daily living, moderate to marked limitations in social functioning, and moderate limitations in concentration, persistence, and pace.
D. The Relevant Opinion Evidence
To determine Trotta's RFC, the ALJ considered the many medical opinions contained in the administrative record. R. 854-60. Trotta takes issue with the ALJ's treatment of three of these opinions: (1) one from Carmelita Lewis, Ph.D., a consultative examining psychologist, who examined and assessed Trotta in 2012; (2) one from Ronald Langberg, Ph.D., a consultative examining psychologist, who administered intelligence testing in 2013; and (3) one from Mark D. Avart, D.O., Trotta's treating orthopedic surgeon, who completed a medical source statement in 2016. Pl Br. at 12-19.
Dr. Carmelita Lewis conducted a clinical psychological disability evaluation of Trotta in 2012. R. 612-16. Dr. Lewis' assessment of Trotta's abilities was that he had moderate limitations in understanding and remembering detailed instructions, carrying out detailed instructions, making judgements on simple work-related decisions, and responding appropriately to changes in a routine work setting. R. 615. She also found that Trotta had moderate limitations in interacting appropriately with the public, supervisors, and coworkers. Id. Finally, she opined that Trotta had marked limitations in responding appropriately to work pressures in a usual work setting. Id. To support this finding, Dr. Lewis cited Trotta's head injury and emotional problems. Id. The ALJ accorded Dr. Lewis' opinion little weight, finding it "not consistent with the evidence as a whole which has previously been discussed." R. 856.
Dr. Ronald Langberg administered intellectual testing of Trotta in 2013. R. 809-23. The IQ test results indicated Trotta had a "Verbal Comprehension Index of 72 (3rd percentile); a Perceptual Reasoning Index of 69 (2nd percentile); a Working Memory Index of 58 (0.3 percentile); a Processing Speed Index of 74 (4th percentile) and a Full Scale IQ of 63 (1st percentile)." R. 818. Dr. Langberg found that Trotta "tested in the 'extremely low' range of intellectual functioning," and diagnosed him with, inter alia, cognitive disorder, not otherwise specified. R. 815-16.
Dr. Langberg noted that Trotta had taken methadone earlier in the day and his "level of effort was difficult to assess, but there was no evidence of any obvious attempt to do poorly on the claimant's part." R. 818. Dr. Langberg also believed that Trotta's anxiety had an effect on Trotta's performance. Id. For these reasons, Dr. Langberg felt that the IQ results did not "truly reflect[] this gentleman's intellectual ability." Id. The ALJ commented that Dr. Langberg "did not specifically address the validity of the [intellectual] testing." R. 853.
Dr. Langberg also completed a "check box" medical source statement, assessing Trotta's work-related limitations. R. 820-21. Dr. Langberg indicated that Trotta suffered from mild limitations in his ability to understand and remember simple instructions. R. 820. He determined that Trotta had moderate limitations in carrying out simple instructions, making judgments on simple and complex work-related decisions, responding appropriately to work situations and changes in a routine setting, and interacting appropriately with the public and supervisors. R. 820-21. He also found that Trotta had marked limitations in understanding, remembering, and carrying out complex instructions, as well as interacting appropriately with coworkers. Id.
The ALJ granted these findings partial weight, explaining that they are only "partially consistent with the record as a whole." R. 856. The ALJ accepted the findings to the extent they supported an RFC involving unskilled work. Id. Citing the record "as a whole," the ALJ rejected any findings that contradicted his determination that Trotta had "only mild limitations in performing activities of daily living; moderate limitations with social functioning; and moderate limitations in concentration, persistence, and pace." Id. The ALJ reasoned that Trotta is "married and takes care of young children on a regular basis." Id.
Dr. Mark Avart completed a medical source statement, assessing Trotta's physical ability to accomplish work-related activities. R. 1279-81. Dr. Avart began treating Trotta after a workplace injury in 2015, performing arthroscopic surgery on his right knee. R. 1272-74. On August 4, 2016, Dr. Avart both examined Trotta and filled out the medical source assessment. R. 1279-81, 1295. Dr. Avart found that Trotta was able to carry less than ten pounds on an occasional or frequent basis. R. 1279. He concluded that Trotta, in an eight-hour workday, was able to stand and walk for about two hours and sit for about four hours. Id. In order to relieve discomfort, Dr. Avart opined that Trotta needed to change positions every fifteen-to-twenty minutes. R. 1279. Dr. Avart also noted that Trotta would need to lie down once or twice a day and that he would miss work more than three times a month. R. 1280-81.
The ALJ accorded Dr. Avart's opinion partial weight to the extent it supported an RFC with a sedentary exertional level. R. 858. However, he found that elements of the opinion were "not supported by the record and [were] somewhat internally inconsistent, especially because the doctor only treated the claimant for his knee condition." Id. As an example, the ALJ found it hard to reconcile Dr. Avart's determination that Trotta must alternate between sitting, standing, or walking every fifteen-to-twenty minutes, with Dr. Avart's determination that Trotta can only stand or walk for a total of two hours in a workday. Id. The ALJ also found Dr. Avart's opinion that Trotta had no restrictions with hazardous activities untenable with Trotta's right knee injury. Id. The ALJ also noted that there was no support, or explanation, for Dr. Avart's conclusion regarding missed time from work. R. at 858-59. Finally, the ALJ gave little weight to Dr. Avart's opinion, in his treatment note, regarding Trotta's poor prognosis and limitations in standing, walking, sitting, driving, lifting, twisting, pushing, and pulling because the ALJ found it to be "vague and not detailed in nature." R. 859.
For the reasons discussed below, Trotta's Request for Review is granted, and this matter is remanded to the Commissioner for an award of benefits in accordance with the detailed opinion that follows.
DISCUSSION
A. Standard of Review
My review of the ALJ's decision is deferential; I am bound by his findings of fact to the extent those findings are supported by substantial evidence in the record. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing to Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Accordingly, my review of the ALJ's findings of fact is limited to determining whether substantial evidence supports the ALJ's decision. Harftranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing to 42 U.S.C. § 405(g)). If the ALJ's decision is supported by substantial evidence, his or her disability determination must be upheld. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005); see also 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Evidence is substantial where it consists of "more than a mere scintilla, but less than a preponderance." Trinh v. Astrue, 900 F.Supp.2d 515, 518 (E.D. Pa. 2012) (citing to Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988)).
I must rely on the record developed during the administrative proceedings along with the pleadings in making my determination. Trinh, 900 F. Supp. 2d at 518; see also 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). I must also defer to the ALJ's evaluation of evidence, assessment of the witnesses, and reconciliation of conflicting expert opinions. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009).
The ALJ's legal conclusions and application of legal principles are subject to "plenary review." See Payton v. Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006) (citing to Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.1995)). I must determine whether the ALJ applied the proper legal standards in reaching the decision. Trinh, 900 F. Supp. 2d at 518 (citing to Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)). Accordingly, I can overturn an ALJ's decision based on incorrect application of a legal standard even where I find the decision supported by substantial evidence. Payton, 416 F. Supp. 2d at 387 (citing to Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983)).
B. The ALJ Erred By Not Considering Whether Trotta's Cognitive Disorder Was Severe at Step Two
Trotta argues that at step two, the ALJ should have found his cognitive disorder to be a severe impairment, but instead the ALJ improperly disregarded this diagnosis. Pl. Br. at 6-9. In response, the Commissioner contends that the ALJ considered all of Trotta's impairments, including his cognitive disorder, and the evidence supported a finding that his cognitive disorder was not a severe impairment. Def. Br. at 7-9. Nevertheless, the Commissioner argues that there was no harm because the ALJ continued with the analysis, and in limiting his ability to work unskilled jobs, the ALJ's RFC determination sufficiently reflected any cognitive disorder. Id. at 9-10. I find that the ALJ erred in his step two analysis by ignoring Trotta's cognitive disorder.
At step two, the ALJ is required to consider the medical severity of any impairment. See 20 C.F.R. § 416.920(a)(4)(ii). Failing to find an impairment to be severe is a harmless error when the ALJ does not deny benefits at this stage and properly considers the condition in the remaining analysis. See 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); Salles v. Comm'r of Soc. Sec., 229 Fed. App'x 140, 145 n.2 (not precedential) ("Because the ALJ found in [claimant's] favor at Step Two, even if he had erroneously concluded that some of her other impairments were non-severe, any error was harmless.") (citing Rutherford, 339 F.3d at 553)).
Here, the report and recommendation adopted by the District Court specifically ordered the ALJ to consider, among other conditions, whether Trotta's cognitive disorder was a severe impairment. R. 984 ("On remand, the ALJ shall consider the combined effects of Plaintiff's cognitive disorder, personality disorder and post-concussive headaches throughout the [sequential evaluation process], including when he determines Plaintiff's RFC." (emphasis added)). Despite this directive, the ALJ ignored Trotta's diagnosis at step two, not even mentioning it in this section of his analysis. R. 845-47. Instead, the ALJ enumerated Trotta's other severe and nonsevere impairments, omitting any remark or consideration of a cognitive disorder.
Had the ALJ properly considered the severity of Trotta's cognitive disorder in the latter stages of his analysis, this error might have been harmless, because Trotta was not denied benefits at step two and his cognitive disorder was considered in the remaining steps. See Rutherford, 339 F.3d at 552-53. For instance, the ALJ mentioned Trotta's diagnosis of cognitive disorder, and the results of his intelligence testing, during his evaluation of whether Trotta's impairments met or equaled any of the Listings at Step 3. R. 850-54. In determining Trotta's RFC prior to step four, the ALJ similarly considered Dr. Langberg's opinion and limited Trotta's RFC to unskilled work. R. 854-56.
Because I find that the ALJ did not properly consider evidence of Trotta's cognitive disorder at steps three through five, I do not find the ALJ's error at step two harmless.
C. The ALJ's Rejection of Dr. Braun's Equivalency Opinion Was Not Supported By Substantial Evidence
For two reasons, Trotta alleges that the ALJ improperly rejected Dr. Braun's expert testimony at step three. Pl. Br. at 9-12. First, the ALJ substituted his own lay opinion of medical evidence for that of the medical expert. Pl. Br. at 9-11. Second, in dismissing the expert's opinion, the ALJ applied one of the requirements for Listing § 12.05, not § 12.02. Id. at 11-12. The Commissioner counters that the ALJ was not bound to accept the medical expert's testimony and that his rationale for not adopting it was proper, as the medical expert's testimony was not supported by the record evidence. Def. Br. at 10-13. While the Commissioner is correct that an ALJ is not categorically obligated to accept a medical expert's testimony, the ALJ here committed reversible error by relying on his own lay opinion to reject the medical evidence supporting the medical expert's opinion, and by applying the wrong Listing criteria.
The final determination of whether a claimant met or equaled a Listing is a decision reserved to the ALJ. See 20 C.F.R. §§ 404.1527, 416.927; Schwartz v. Halter, 134 F. Supp. 2d 640, 659 (E.D. Pa. 2001). Because this is ultimately the ALJ's decision, the ALJ does not have to accept a medical expert's opinion that the claimant equaled a Listing. Schwartz, 134 F. Supp. 2d at 659 ("The ALJ is therefore not required to accept the findings of agency medical or psychological consultant as to whether an individual's impairment is equivalent in severity to any listed impairment."). However, as with any other medical opinion evidence, the ALJ must consider the opinion and afford it proper weight. Id. ("[A] physician or psychologist designated by the Commissioner must give an opinion, based on the evidence, on the issue of equivalence; such opinion must be received into the record as expert opinion evidence; and the ALJ must give it appropriate weight."); see also Cadillac v. Barnhart, 84 Fed. App'x 163, 167-68 (3d Cir. 2003) (not precedential) (finding the ALJ's rejection of a reviewing medical expert's equivalency testimony to be insufficiently supported).
An opinion may be rejected if there is contradictory medical evidence, Plummer, 186 F.3d at 429, if there is insufficient clinical data to support it, see Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985), or if the opinion is contradicted by the physician's own treating notes or the patient's activities of daily living, see Smith v. Astrue, 359 F. App'x 313, 316-17 (3d Cir. 2009) (not precedential). On the other hand, the ALJ is not permitted to make speculative inferences from medical reports or "employ her own expertise against that of a physician who presents competent medical evidence." Plummer, 186 F.3d at 429. If an ALJ decides to reject medical opinion evidence, he may not do so for "no reason or for the wrong reason." Id. (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).
Dr. Braun is a licensed psychologist, an accepted source of medical opinion evidence, and was called as a witness by the ALJ, not by the plaintiff. In rejecting Dr. Braun's equivalency testimony, the ALJ took issue with Dr. Braun's reliance on Trotta's IQ test results. See R. 853. The ALJ stated that Dr. Langberg, the psychologist who administered the IQ test, "did not specifically address the validity of the testing, and noted that the claimant's level of effort during testing was difficulty [sic] to assess, and his anxiety symptoms hampered his performance on testing, therefore the test results and [sic] did not reflect [Trotta's] intellectual ability." Id. Dr. Langberg did not invalidate his test results. Instead, the ALJ improperly imposed his own lay judgment and found the test results invalid because Trotta's anxiety (one of his severe impairments) may have affected his performance. There is no medical evidence, opinion or otherwise, supporting this invalidation of the test results because they may have been influenced by anxiety. Two licensed psychologists (Dr. Langberg and Dr. Braun) appeared to take Trotta's anxiety into account when considering the IQ results and neither considered the results invalid. Dr. Braun then went on to find that Trotta's symptoms equaled Listing § 12.02. The ALJ applied his own lay judgment as to the validity of the IQ test results, in place of the professional opinion of Dr. Braun and in the absence of any medical evidence supporting the ALJ's lay opinion of the merits of the IQ testing. I find that this is an erroneous reason for discrediting Dr. Braun's equivalency opinion.
The ALJ also disregarded Dr. Braun's equivalency finding because there was "no evidence of significant deficits in adaptive functioning, during the developmental period." R. 853. This is an incorrect reason for rejecting Dr. Braun's medical opinion regarding Listing § 12.02. As Trotta notes in his brief, the "adaptive functioning" terminology used by the ALJ is drawn from Listing § 12.05, not Listing § 12.02. The introduction to Listing § 12.05 (relating to intellectual disability) states: "Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. Pt. 404 Subpt. P, App. 1 § 12.05 (emphasis added). For Listing § 12.02, on the other hand, there is no requirement regarding the claimant's adaptive functioning. Id. at § 12.02. In short, the ALJ disregarded Dr. Braun's equivalency finding because it failed to satisfy a requirement that Listing § 12.02 did not impose. This was legal error, and harmful.
The ALJ also supported his decision with the fact that none of Trotta's treating physicians "noted any significant cognitive deficits on examination." The ALJ later rejected treating psychiatrist Dr. Woloshin's opinion, which did not note significant cognitive deficits on examination, because it was not consistent with the evidence as a whole, and not internally consistent with his treatment notes. R. 857. These two findings by the ALJ are not readily reconcilable. The ALJ does not explain why he discredits Dr. Woloshin's opinion for not finding any cognitive deficits as inconsistent with his notes, and then relies on the absence of cognitive deficits in treating physician notes as support for the ALJ's decision that there was no disability. Considering the significant legal errors discussed above, I find that, overall, the ALJ's opinion was not supported by substantial evidence.
These regulations were recently updated, with an effective date of January 17, 2017. Because the ALJ's decision was dated January 5, 2017, I will apply the earlier versions that were effective at that time.
Part B of Listing § 12.02 does include a criteria of repeated episodes of decompensation that last for an extended duration. Id. "Episodes of decompensation" are defined in the regulations as "exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." Id. § 12.00 (emphasis added). While this definition does reference a loss of adaptive functioning, the added qualification of "during the developmental period" remains specific to the initial requirement in Listing § 12.05. In contrast, Listing § 12.02 makes no reference to this developmental period. Here, the ALJ specifically found no deficiencies in Trotta's adaptive functioning during the developmental period, an almost exact recitation of Listing § 12.05's introductory language. Clearly, the ALJ misappropriated a standard from Listing § 12.05 to his evaluation of Trotta's equivalence with Listing § 12.02's standards.
The only other reference to "adaptive functioning" in the section of Listings on mental disorders is in the introduction when discussing intelligence tests:
We may consider exceptions to formal standardized psychological testing when an individual qualified by training and experience to perform such an evaluation is not available, or in cases where appropriate standardized measures for your social, linguistic, and cultural background are not available. In these cases, the best indicator of severity is often the level of adaptive functioning and how you perform activities of daily living and social functioning.20 C.F.R. Pt. 404 Subpt. P, App. 1 § 12.00(C)(6)(e). No exception to psychological testing is applicable here. Standardized testing was available, and an individual qualified to administer the testing did so.
In response, the Commissioner contends that the ALJ's discussion of adaptive functioning was reasonable for two reasons: (1) Dr. Braun discussed Trotta's IQ test results, so it was proper for the ALJ to refer to Trotta's adaptive functioning, and (2) his discussion of adaptive functioning "did not mean that the ALJ did not consider Listing § 12.02." Def. Br. at 13. As to the first argument, it may be true, in a general sense, that there are ways in which adaptive functioning could be properly part of a discussion of IQ test results. The ALJ's discussion was not one of them.
As to the second argument, of course the ALJ considered Listing § 12.02, but he considered it wrongly, by imposing an additional requirement not found in § 12.02. In dismissing Dr. Braun's equivalency opinion, the ALJ supported his finding with a significant discussion of how Dr. Braun's testimony (which was in regard to Listing § 12.02) was not consistent with Trotta's adaptive functioning during the developmental period (which, as discussed above, only applies to Listing § 12.05). The ALJ considered Dr. Braun's opinion using the wrong legal standard. This was error. Disqualifying Trotta because he did not meet a requirement under Listing § 12.05 added a burden to Trotta's showing that he was not legally required to meet.
It is conceivable that when determining whether a claimant's symptoms equal one Listing, an ALJ may find another Listing's criteria to be relevant. See 20 C.F.R. § 404.1526(b)(ii) ("We will find that your impairment is medically equivalent to that listing if you have other findings related to your impairment that are at least of equal medical significance to the required criteria."). However, here, the ALJ provided no rationale for the connection between his finding that Trotta did not have a deficit of adaptive functioning during the developmental period and the ALJ's opinion that Trotta's symptoms did not equal Listing § 12.02. The ALJ did not cite (and my independent research failed to find) any case law articulating the connection between the loss of adaptive functioning during the developmental period and Listing § 12.02. I am unable to follow the ALJ's chain of reasoning and cannot meaningfully review his decision.
Furthermore, in his rejection of Dr. Braun's testimony, the ALJ failed to support the discussion of Trotta's developmental adaptive functioning with substantial evidence. At the hearing where Dr. Braun testified, there was no mention of Trotta's adaptive functioning abilities. The ALJ failed to cite to any evidence in the administrative record that demonstrated, or evaluated, Trotta's adaptive functioning during the developmental period. The only evidence the ALJ used to support his opinion was that Trotta left his occupation as a karate instructor because of his physical, not cognitive, limitations, and that Trotta failed the GED test twice—first by twenty-seven points, and then by three points. R. 853. The ALJ, therefore, found Trotta's "independent functioning does not establish the requisite deficits in adaptive functioning." Id. Here, the ALJ connected the evidence (of Trotta's reasons for leaving the karate field and of Trotta's GED test scores) to a requirement of Listing § 12.05, but not to the criteria contained in Listing § 12.02. The evidence was not "substantial" evidence supporting the ALJ's opinion, vis a vis Listing § 12.02. All that remains is the ALJ's speculation and lay judgment that absence of problems with Trotta's adaptive functioning during his developmental period somehow indicates that, despite Dr. Braun's testimony, Trotta's symptoms do not equal Listing § 12.02. This was legal error, and harmful.
Of course there was no evidence about Trotta's adaptive functioning during his developmental period, and no medical evidence demonstrating its relevance to the criteria under Listing § 12.02. That is because such evidence is irrelevant to Listing § 12.02, the listing that Dr. Braun discussed.
For these reasons, the ALJ's decision is not supported by substantial evidence. Accordingly, the ALJ erred as a matter of law in rejecting Dr. Braun's equivalency opinion.
D. The ALJ's Decision to Disregard Dr. Lewis' and Dr. Langberg's Opinions Was Not Adequately Explained
Trotta also claimed that the ALJ erred in his RFC analysis by not giving enough credit to three medical opinions in the record, one each from Dr. Lewis, an examining psychologist; Dr. Langberg, another examining psychologist; and Dr. Avart, a treating orthopedic physician. Pl. Br. at 13-19. The Commissioner responded, arguing that the ALJ's decision regarding these opinions was reasonably supported by substantial evidence. Def. Br. at 13-21. While I agree that substantial evidence supported the ALJ's decision regarding Dr. Avart's report, I find that the ALJ erred in not adequately explaining his rationale for discrediting the opinions of Dr. Lewis and Dr. Langberg.
When determining a claimant's RFC, the ALJ must evaluate and weigh the available medical opinion evidence. A treating physician's opinion is entitled to controlling weight when supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence in the record. See 20 C.F.R. § 416.927(c). As mentioned above, an opinion may be rejected if there is contradictory medical evidence, insufficient clinical data, or inconsistencies with the physician's treating notes or the claimant's daily activities. See Section C, supra. The opinion may be accorded "more or less weight depending upon the extent to which supporting explanations are provided." Plummer, 186 F.3d at 429 (citing Newhouse, 753 F.2d at 286).
"Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s)." 20 C.F.R. § 404.1527(a)(2).
The rules regarding the evaluation of a treating physician's report have changed, effective March 27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c. Trotta's case arose under the old regulations.
Where a treating source's opinion is not given controlling weight, the ALJ must determine what weight to give the relevant medical sources by considering factors such as the length of the treatment relationship and frequency of visits, nature and extent of the treatment relationship, whether the medical source supports the opinion with medical evidence, whether the opinion is consistent with the medical record, and the medical source's specialization. 20 C.F.R. § 404.1527(c). In choosing to reject the treating physician's assessment, an ALJ may not make "speculative inferences from medical reports" and may not reject a treating physician's opinion "due to his or her own credibility judgments, speculation or lay opinion." Morales v. Apfel, 225 F.3d 310, 217 (3d Cir. 2000).
Opinions from nontreating sources who have examined the claimant must also be weighed. 20 C.F.R. § 416.927(c)(1); see Chandler, 667 F.3d at 361. While they do not receive as much consideration as a treating source's opinions, they warrant more weight than the opinion of nonexamining medical sources. 20 C.F.R. § 416.927(d)(1); see also Brownawell v. Comm'r of Soc. Sec., 554 F.3d 352, 357 (3d Cir. 2008). Testimony from a nonexamining source also must be considered by the ALJ, but it is not entitled to deference. See 20 C.F.R. § 416.927(f).
While the ALJ's opinion does not have to reference every piece of medical evidence, the ALJ is expected "to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law." Fragnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). "The ALJ must consider all the evidence and give some reason for discounting the evidence she rejects." Plummer, 186 F.3d at 429 (3d Cir. 1999); see also Weber v. Massanari, 156 F. Supp. 2d 475 (E.D. Pa. 2001). The ALJ must provide an adequate explanation for his decision, in order to allow the court to meaningfully review whether it was supported by substantial evidence. Hartman v. Colvin, No. 02:13-cv-00265, 2014 WL 1784084, at *8 (W.D. Pa. May 5, 2014).
For the reasons articulated below, I find that ALJ erred in weighing Dr. Lewis' and Dr. Langberg's opinions.
1. Dr. Lewis' and Dr. Langberg's Opinions
The ALJ only gave a cursory reason for rejecting Dr. Lewis' opinion. Dr. Lewis, an examining psychologist, performed a clinical evaluation of Trotta, finding him to have moderate to marked limitations in certain work-related activities. R. 610-15. Specifically, Dr. Lewis found, based on Trotta's head injury and emotional problems, that Trotta had marked limitations in responding appropriately to work pressures in a usual work setting. R. 615. The ALJ accorded little weight to this opinion, stating that "it is not consistent with the evidence as a whole which has previously been discussed." R. 856. This is not an adequate explanation. The ALJ failed to articulate or cite to any particular piece of evidence in the record to support this finding.
For Dr. Langberg's report, the ALJ's treatment was similarly conclusory. Dr. Langberg found that Trotta had various moderate limitations (such as, in his ability to interact appropriately with the public or supervisors and in his ability to carry out simple instructions) and some marked limitations (such as, in his ability to interact appropriately with coworkers and in his ability to understand, remember, and carry out complex instructions). R. 821-22. The ALJ gave only partial weight to Dr. Langberg's findings, accepting the opinion to the extent it supported an RFC of "unskilled work with occasional interactions with others." R. 856. He rejected Dr. Langberg's opinion insofar as it was not consistent with a finding that Trotta has "only mild limitations in performing activities of daily living; moderate limitations with social functioning; and moderate limitations in concentration, persistence, and pace." R. 856. The ALJ's explanation was that "the record, as a whole," supports this finding. The only specific evidence mentioned by the ALJ was that Trotta "is married and takes care of young children on a regular basis." R. 856.
When weighing medical opinion evidence, an ALJ may consider the claimant's daily living activities, such as childcare. See Rae v. Berryhill, No. 17-967, 2018 WL 3619247, at *5 n.7 (W.D. Pa. July 30, 2018); Gonzales v. Colvin, 191 F. Supp. 3d 401, 423-25 (M.D. Pa. 2015) (discussing at length case law regarding the appropriate use of activities of daily living evidence, particularly in the context of childcare). For example, the ability to care for one's children may be used "to discount credibility if it contradicts a claimant's limitations or symptoms." Gonzales, 191 F. Supp. 3d at 425; see also Rutherford v. Barnhart, 399 F.3d 546, 555 (3d Cir. 2005) (concluding that the ALJ's decision to discount claimed side effects of drowsiness based on inconsistencies in the record, including testimony that claimant cared for her child and grandchild, was supported by substantial evidence).
However, "[t]he ability to care for children, alone, does not inherently indicate that a claimant possesses the ability to perform on a regular and continuing basis in a work setting." Gonzales, 191 F. Supp. 3d at 424; see also Rae, 2018 WL 3619247, at *5 n.7 ("Although it is not improper for an ALJ to consider reported activities of daily living in assessing credibility, it likewise is well-established that the ability to perform activities of daily living does not always correspond with the ability to carry out sustained work-related mental activities in a work setting on a regular and continuing basis."). It is unclear how the fact that Trotta is married and cares for his children supports the ALJ's rejection of Dr. Langberg's finding that Trotta has marked limitations in his ability to interact with coworkers. Caring for one's own children and being married is not substantial evidence of one's ability to appropriately interact with coworkers in a work setting. The work environment and dynamic among colleagues significantly differ from the environment and dynamic with one's spouse and children. Therefore, the ALJ again failed to support his rejection of medical opinion evidence with an adequate explanation.
When the District Court previously reviewed this case, the Magistrate Judge determined that there was substantial evidence in the record that supported the first ALJ's decision to give little weight to Dr. Langberg's finding that Trotta had marked limitations in his ability to interact with coworkers. The ALJ, and the Magistrate Judge, pointed to the fact that Dr. Langberg did not review the record. Therefore, the ALJ inferred that Dr. Langberg was unaware of Trotta's reports of interacting with other people on a daily basis. R. 985-86. However, the ALJ on remand did not provide this as the reason for rejecting Dr. Langberg's opinion.
In addition to Dr. Lewis' and Dr. Langberg's reports, the ALJ considered four other medical opinions regarding Trotta's mental limitations. Dr. Jeffrey Woloshin, Trotta's treating psychiatrist, found that Trotta only had none or mild limitations in the mental abilities to perform work, and Dr. Woloshin also did not identify any signs or symptoms of mental impairments. R. 1300-01. The ALJ accorded this opinion little weight because it was inconsistent with the evidence and with Dr. Woloshin's own treatment records. R. 857. The ALJ also gave little weight to the letter written by Dr. Amit Sachdev, Trotta's treating neurologist, that stated Trotta was unlikely to be able to "function well in a work environment," due to his post-concussive syndrome. R. 857. The ALJ's rationale was that this was a conclusion reserved for the Commissioner and it was unsupported by objective findings. Id.
The ALJ indicated that Dr. Woloshin only treated Trotta for one month when he completed the medical source statement, on October 12, 2013. R. 857. However, it appears that Dr. Woloshin had written (albeit it is hard to read) that he has seen Trotta once-a-month for one and a half years. R. 1298. This reading aligns with the earliest treatment note that was dated January 8, 2012. R. 720.
The ALJ also considered the opinions of two state agency reviewing psychologists, Dr. Sandra Banks and Dr. Salvatore Cullari. R. 859-60. The ALJ accepted Dr. Banks and Dr. Cullari's opinions to the extent that they were consistent with the ALJ's RFC determination with respect to limiting Trotta's work to "simple, routine work tasks." R. 860. However, the ALJ only accorded these opinions partial weight, because they were not updated since April 2011 and June 2012, respectively. Id.
With regard to Trotta's social interaction limitations, Dr. Banks found that Trotta had no social interaction limitations, and Dr. Cullari found that Trotta's only social interaction limitation was that he was moderately limited in accepting instructions and responding appropriately to criticism from supervisors, noting that Trotta has "a history of poor impulse control" and "tends to be socially isolated." R. 94, 111.
After considering and weighing all of the opinion evidence, the ALJ ultimately concluded that Trotta's mental impairments limited him to the following RFC:
[Trotta] is limited to perform, use judgment, and tolerate occasional changes in a routine work setting defined as that consistent with routine and repetitive tasks. Finally, he can
occasionally interact with supervisors, coworkers, and the public.R. 854. I am prevented from meaningfully reviewing this determination because the ALJ essentially discredited every expert opinion on Trotta's mental limitations, assigning only little or partial weight to the opinions in the record.
An ALJ is not required to accept a medical opinion concerning a claimant's RFC. See 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ is not even required to rely on "outside medical expert review of each fact incorporated into the [RFC] decision." Chandler, 667 F.3d at 362; see also Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006) (not precedential) ("There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC."). However, the ALJ is required to adequately explain the basis of his or decision, pointing to substantial medical or other evidence supporting the RFC determination. See Hartman, 2014 WL 1784084, at *8 (explaining that after the ALJ rejected the medical opinion, he "was required to point to some 'medical evidence speaking to [Plaintiff's] functional capabilities that supports [his own] conclusion' as to Plaintiff's RFC" (alterations in original) (quoting Biller v. Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778 (W.D. Pa. 2013)). After failing to give an adequate explanation of his reasons for discrediting Dr. Lewis' and Dr. Langberg's opinions, the ALJ proceeded to discredit, in some fashion, all of the opinion evidence regarding Trotta's ability to interact with coworkers. This left no identifiable and reviewable evidentiary basis for the ALJ's conclusion that Trotta was only moderately, not markedly, limited in social functioning. What was left as a basis for the conclusion was the ALJ's lay opinion. This was error.
2. Dr. Avart's Opinion
Finally, with regard to Dr. Avart's opinion, the ALJ's decision to grant the report little to partial weight was supported by substantial evidence. Dr. Avart was the orthopedic surgeon who performed Trotta's arthroscopic knee surgery, making him a treating physician.
The ALJ found that Dr. Avart's medical source statement was partially consistent with the record. He noted that Dr. Avart's opinion generally supported the finding that Trotta was limited to an RFC with a sedentary exertional level. He found some of Dr. Avart's findings to be "somewhat internally inconsistent" or not supported by the record:
For example, the finding that he must frequently alternate between sitting, standing, or walking every 15-20 minutes, with sitting, is hard to reconcile with the report that also states that the claimant can only stand and walk for a total of two hours a day, and can only stand for 15-20 minutes at a time. Moreover, the doctor's opinion gave no restriction with hazardous activity, which would include driving, which is clearly warranted in light of his right knee impairment. Finally, the doctor's opinion that the claimant would be absent from work three or more days per month, has no additional explanation, and is not otherwise supported in the record.R. 858-59. With regard to limitations mentioned in a progress note from the same day, the ALJ disregarded the doctor's opinion that Trotta was limited in various activities, due to his back and knee injuries, and that his prognosis was poor, because the opinions were "vague." R. 859.
Trotta first argues that the ALJ's determination was incorrect because the ALJ characterized the scope of Dr. Avart's treatment as limited to Trotta's knee, while there is record evidence that Dr. Avart referenced Trotta's spine injury, lumbar tenderness, spasm and restricted range of motion, and peroneal neuropathy. Pl. Br. at 17. The Commissioner responded, stating that the records show that Dr. Avart primarily treated Trotta for his right knee injury and that there was no evidence of a spine injury. Def. Br. at 19. While Dr. Avart's treatment may have extended beyond just treating Trotta's knee injury, I find that any error was harmless because, as discussed below, the ALJ provided substantial additional support for his determination.
Second, Trotta takes issue with the ALJ's discussion of Dr. Avart's findings regarding Trotta's limitations on driving. Pl. Br. at 17. Trotta alleges that the ALJ erred when he contradicted himself by faulting Dr. Avart for not restricting Trotta's driving, while also finding that Dr. Avart had noted that Trotta was restricted in his ability to drive. Pl Br. at 18. However, Trotta misunderstands the record. On the medical source statement, Dr. Avart found no limitation for hazardous activity, which the ALJ interpreted as including driving. R. 1280. The ALJ used this finding as evidence that Dr. Avart's medical source statement should not garner significant weight, as it was not consistent with the medical evidence of Trotta's right knee injury. R. 858.
On the other hand, in his treatment note from the same day, Dr. Avart had indicated a limitation in Trotta's driving ability. R. 1295 (indicating Trotta has difficulty with, among other activities, driving). The ALJ generally did not find the opinions, including on the topic of driving, contained in the progress note to be persuasive because the note lacked detail and specificity. R. 859. Therefore, the ALJ did not contradict himself, but instead was considering and weighing different pieces of evidence.
Third, Trotta alleges that the ALJ did not reject Dr. Avart's opinion that Trotta was only able to sit for four hours in a workday, which in combination with his other limitations, would be dispositive of Trotta's disability. Pl. Br. 18-19. The Commissioner counters that the ALJ's decision, taken as a whole, demonstrated his finding that Trotta could sit for more than four hours in a workday, specifically citing Dr. Malumed's opinions and the worker's compensation surveillance report. Considering the entirety of the decision, I agree that the ALJ relied on the opinion of Dr. Jeffery Malumed, a consulting physician, and for this reason, rejected Dr. Avart's limitation on Trotta's ability to sit.
Dr. Malumed first performed an independent medical examination of Trotta, on August 31, 2015. R. 1283-87. He subsequently wrote an addendum to his report after reviewing Trotta's medical records. R. 1288-89. Dr. Malumed reevaluated Trotta on March 30, 2016, updating his findings regarding Trotta's ability to work. R. 1290-94. At that time, Dr. Malumed wrote his findings in a four-page report, followed by a completed physical capabilities checklist. Upon evaluation, Dr. Malumed found that Trotta was "having continued complaints to his right knee that would affect his ability to go back to his normal activities or job," noting that Trotta appeared to be doing worse since his surgery with Dr. Avart. R. 1292. But he also wrote that there were "findings consistent of embellishment of [Trotta's] subjective complaints," regarding the numbness in his leg. Id. Dr. Malumed opined that Trotta could "return to a mostly sedentary type position at this point, because I do believe that he has atrophy of his muscles, loss of motion and probably does need to ambulate with a cane most of the time, which he states was not present until after the second surgery." Id. Dr. Malumed also noted that Trotta had no back pain. R. 1292-93. On the physical capabilities checklist, Dr. Malumed indicated that Trotta could stand, walk, or drive for one to three hours, respectively. He also found Trotta able to sit for five to eight hours and perform sedentary work. R. 1294.
The ALJ gave Dr. Malumed's findings great weight because he found it the most consistent with the record, specifically noting that it aligned with the worker's compensation surveillance report. R. 858. The ALJ's RFC determination ultimately incorporated Dr. Malumed's finding that limited Trotta to sedentary work. R. 854.
Because Dr. Avart found that Trotta was limited to sitting for four hours in a workday while Dr. Malumed found that he was able to sit for five-to-eight hours, there is conflicting evidence in the record on this matter. While the ALJ did not articulate that he accepted Dr. Malumed's finding regarding the length of time Trotta can sit over Dr. Avart's determination, reading the ALJ's decision as a whole against the record makes this evident. The ALJ stated that he gave great weight to Dr. Malumed's opinion, while explaining some of the reasons he only gave Dr. Avart's opinion partial weight. The ALJ acted within his discretion and accorded more weight to Dr. Malumed's opinion. Therefore, the ALJ did not commit error.
E. Trotta's Claim that the ALJ Erred By Not Incorporating All of His Impairments in the Hypothetical Posed to the Vocational Expert Is Moot
As a final catchall argument, Trotta claimed that the ALJ erred at step five because the hypothetical posed to the vocational expert did not encompass all of Trotta's impairments, due to the other errors previously alleged. Pl. Br. at 19-20. The Commissioner responded that the hypothetical "accurately conveyed all of [Trotta's] credibly established limitations." Def. Br. at 21.
For the reasons articulated in this opinion, I find that the ALJ committed reversible error and that the matter should be remanded for an award of benefits. It is unnecessary to resolve the issue involving the ALJ's hypothetical, in light of the findings in this opinion.
F. The Commissioner's Final Decision Is Reversed and This Matter Remanded with Direction to Award Benefits
Because the ALJ committed reversible error at step three, the question remains whether I should award benefits or remand the case for further proceedings. As detailed above, the ALJ improperly rejected Dr. Braun's opinion that Trotta's condition equaled Listing § 12.02. The ALJ improperly relied on his own lay judgment and applied the wrong legal criteria when analyzing the evidence. Therefore, the decision was a product of harmful legal error, unsupported by substantial evidence, and should be reversed.
On the record as it stands now, there is substantial evidence that Trotta meets a Listing and is entitled to receive benefits. The Court of Appeals for the Third Circuit has instructed that "[t]he decision to direct the district court to award benefits should be made only when 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." Podedworney v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984); see Morales, 225 F.3d at 320. The record has been fully developed in this case, through two rounds of appeal. The question now is who shall bear the burden of the ALJ's legal errors. I conclude it should be the Commissioner, not Trotta.
Trotta has made out a prima facie case, by substantial evidence, that his condition equals Listing § 12.02. Where according to the Listings a claimant is disabled and entitled to benefits, courts, including our Court of Appeals, often have directed the award of benefits rather than remanding for further proceedings. See Allen v. Bowen, 881 F.2d 37 (3d Cir. 1989); see generally Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (April 9, 1996) (noting that claimant "meets or equals Listing § 12.04 and is entitled to a conclusive presumption of disability. No purpose would be served by remanding for further proceedings."); Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) ("'Outright reversal and remand for immediate award of benefits is appropriate when additional fact finding would serve no useful purpose.'" (quoting Williams v. Bowen, 844 F.2d 748, 760 (10th Cir. 1988)); Espinosa v. Colvin, 953 F. Supp. 2d 25, 38 (D.D.C. 2013) (remarking on motion for reconsideration that "[g]iven the certainty in the record as to plaintiff's disability, the Court did not err in remanding solely for an award of benefits rather than for further administrative proceedings") (citing Martin v. Apfel, 118 F. Supp. 2d 9, 18 (D.D.C. 2000), which remanded for benefits where ALJ's "ultimate conclusion that [plaintiff] was not disabled was not based on substantial evidence" but instead was "arrived at by irrationally disregarding highly probative evidence[.]").
A reversal with direction to award benefits is justified where 1) there has been inordinate delay not attributable to the petitioner, 2) the existing record contains substantial evidence supporting a finding of disability, and 3) it is unlikely that any additional material evidence will be unearthed on remand. See Morales, 225 F.3d at 320 (delays not attributable to the claimant, a record that is unlikely to change, and substantial evidence that claimant suffers from a severe mental disability). The Court of Appeals had this to say, in a similar context:
The Secretary, in effect, asks this court for a second chance to prove his case . . . . We see no reason, however, why the Secretary should be afforded such an additional opportunity. This is not a case where, for example, the legal standard was unclear . . . or the Secretary did not have an opportunity to consider a new policy . . . . The Secretary was given full opportunity to develop the administrative record in this case.
. . . Where as here the claimant established a prima facia case of entitlement, the record was fully developed, and there is no good cause for the Secretary's failure to adduce all the relevant evidence in the prior proceeding, we see no reason to remand for further fact finding.Allen, 881 F.2d at 44. A remand in this case would afford the Commissioner a third "chance to prove [her] case." Id. There are good reasons not to extend the Commissioner yet another bite at the apple.
Trotta filed his claim in 2012, more than six years ago. He appealed the first unfavorable opinion, and the case was remanded by the district court because of the ALJ's failure to properly consider Trotta's cognitive disorder, starting at step two and continuing through step five. R. 983-86 (Judge Wells' Report & Recommendation). The court noted that the ALJ, in the first round, "stated that the record lacked the required opinion of a medical expert regarding medical equivalence, (R. 22); this is an obvious error, since the ME clearly testified that Plaintiff medically equaled LI 12.02." R. 985.
On remand, a second ALJ ignored the direction from the district court to consider the evidence of Trotta's "cognitive disorder, personality disorder and post-concussive headaches throughout the SEP." Id. at 984. The ALJ did not consider the evidence at step two. The ALJ committed obvious error at step three by treating the IQ testing as invalid and by requiring Trotta to meet a standard drawn from Listing § 12.05, which did not apply. The ALJ failed to supply an adequate explanation for discrediting Dr. Lewis' and Dr. Langberg's opinions.
Trotta has established a prima facie case of entitlement through substantial evidence that his condition equaled Listing § 12.02, and has been through two rounds of administrative hearings. It is unlikely that anything new will be unearthed on remand. See Morales, 225 F.3d at 320 (record unlikely to change on remand). The third prong of the analysis, under Morales, is whether there has been inordinate delay not attributable to the petitioner. Id. The delay in this case is not attributable to Mr. Trotta.
In Allen, the government asserted that remand was appropriate because it would be able to establish there were jobs the claimant could do in the national economy. 881 F.2d at 44. Nevertheless, the Court of Appeals refused to remand. Id. As in Allen, "[t]his is not a case where, for example, the legal standard was unclear . . . or the Secretary did not have an opportunity to consider a new policy[.]" Allen, 881 F.2d at 44. Rather, "[t]he Secretary was given full opportunity to develop the administrative record in this case[.]" Id. Despite this opportunity, "[t]he ALJ . . . avoided a decision in [the claimant's] favor only by effectively bypassing the issue concerning the effects of the mental impairment." Woody v. Sec'y of Health & Human Servs., 859 F.2d 1156, 1162-63 (3d Cir. 1988).
Despite the opportunity supplied by the district court's remand, in 2016, to re-evaluate the evidence using the correct legal standards, the Commissioner committed new (but still obvious) errors, the effect of which was (again) to avoid the probative value of the medical evidence—proffered through testimony of an expert called by the Commissioner—establishing a disability under Listing § 12.02. The Commissioner has had the opportunity, twice, to provide a proper reason why Dr. Braun's opinion, and other evidence of Mr. Trotta's disability, should be discounted. The Commissioner has failed, twice. As in Allen, I "see no reason to remand for further fact finding." Allen, 881 F.2d at 44. I "conclude that this is an appropriate case for the exercise of [the] prerogative to direct an award of benefits." Woody, 859 F.2d at 1163.
I will reverse and direct an award of benefits.
G. The ALJ De Facto Reopened Trotta's DIB Claim
The only issue that remains is whether the ALJ de facto reopened Trotta's DIB claim. Because I am reversing the ALJ's decision and directing an award of benefits, I must determine the status of Trotta's earlier DIB claim, as it is relevant to the calculation of benefits Trotta should receive. After ordering supplemental briefing from both parties to clarify their positions, I find that the ALJ de facto reopened Trotta's prior DIB claim.
The relevant statutes and regulations allow DIB benefits to be awarded starting as early as twelve months before the claim's filing date. See 42 U.S.C. § 423(b); 20 C.F.R. § 404.621(a)(1); see also Kaszer v. Massanari, 40 Fed. App'x 686, 688 (3d Cir. July 19, 2002) (not precedential). Therefore, determining whether Trotta's 2011 DIB claim was de facto reopened, as opposed to using the filing date of his 2016 DIB claim, impacts the amount of benefits he may receive. For the reasons discussed in footnote twenty-two, infra, the ALJ adjudicated Trotta's earlier claims, as he could not have decided the 2016 DIB claim.
For background, Trotta first applied for social security benefits (both SSI and DIB) on March 17, 2011, alleging a disability onset date of March 1, 2010. R. 241-48. These claims were denied, and Trotta did not appeal. See R. 154-62. Trotta filed a second application for SSI and DIB on March 13, 2012, alleging an onset date of March 2, 2010. R. 75-98. Trotta's claims were again denied, but this time he requested a hearing, on both the SSI and DIB claims. R. 134-35. However, only the SSI claim was adjudicated by the ALJ, who failed to even mention Trotta's DIB claim. R. 20-31. After the case was remanded back to the Social Security Administration, Trotta's attorney argued, at the hearing, that the ALJ should consider Trotta's 2012 application as a claim for both SSI and DIB benefits. See R. 870, 878-79. Before the ALJ issued his decision, Trotta protectively filed, for the third time, a DIB claim, on September 6, 2016. R. 862. When the ALJ issued his decision, he denied both of Trotta's claims—his 2012 SSI claim and his 2016 DIB claim. Id. Importantly, the ALJ did not expressly indicate he was not reopening Trotta's DIB claim from 2011. See R. 839-62.
As discussed in footnote 3, supra, this second DIB claim was denied on res judicata grounds by a disability examiner.
Looking at the entirety of the opinion, in conjunction with the administrative record, the ALJ clearly adjudicated Trotta's earlier DIB claims, despite the concluding statement that the 2016 DIB claim was denied. First, Trotta's 2016 DIB claim is not part of the administrative record. While the Commissioner references this third DIB application in her supplemental briefing, she does not cite to the actual application. See Def. Suppl. Br. at 2 (citing to R. 843, 878, which are the ALJ's opinion and the hearing transcript, respectively). Importantly, the 2016 claim is not among the list of exhibits accompanying the ALJ's decision. See R. 863-69. The ALJ simply cannot make a determination on a claim that is not before him and of which there is no record (and, to be clear, neither can I). Second, after the ALJ summarized the relevant procedural history, he clarified that he was adjudicating "the concurrent claims for both Title II [DIB] and Title XVI [SSI] benefits." Id. This is significant because the ALJ had already acknowledged that (1) Trotta's 2016 DIB claim was not escalated to the hearing level for adjudication, and (2) Trotta previously argued that his 2012 SSI claim was also a DIB claim by operation of law. R. 843. Therefore, the "concurrent claims" for SSI and DIB must have been the earlier claims from 2012 (included in the record), not the 2016 claim.
The Social Security Administration ("SSA") may deny claims on res judicata grounds, if the agency previously rejected a claim based on the same issues, but the agency is not required to do so and may reopen the claim. Kaszer v. Massanari, 40 Fed. App'x 686, 690 (3d Cir. July 19, 2002) (not precedential) (citing to Purter v. Heckler, 771 F.2d 682, 691 (3d Cir. 1985), and 20 C.F.R. § 404.988). Federal district courts are barred from reviewing the agency's decision to not reopen a claim. Kaszer, 40 Fed. App'x at 690 (citing to Califano v. Sanders, 430 U.S. 99, 97 (1977)); see also Destefano v. Astrue, No. 07-2750, 2009 WL 113744, at *11 (E.D. Pa. Jan. 14, 2009). When the agency does not address an earlier decision explicitly, the district court must review the record to consider whether the ALJ de facto reopened the claim. Kaszer, 40 Fed. App'x at 690 (citing to Coup v. Heckler, 834 F.2d 313, 317 (3d Cir. 1985), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789 (2012)); see also Destefano, 2009 WL 113744, at *11.
A reopening, and thus a waiver of any claim of administrative res judicata, will be found "where the administrative process does not address an earlier decision, but instead reviews the entire record in the new proceeding
and reaches a decision on the merits ..." Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985). See also Purter v. Heckler, 771 F.2d 682 (3d Cir. 1985).Coup, 834 F.2d at 317 (quoted in Kaszer, 40 Fed. App'x at 693-94). Here, the Commissioner concedes that the ALJ did not address the earlier DIB claim for its preclusive effect. Def. Suppl. Br. at 3. Therefore, I must determine whether the ALJ "review[ed] the entire record in the new proceeding and reache[d] a decision on the merits[.]" Coup, 834 F.2d at 317 (internal quotation and citation omitted). In Kaszer, a panel of the Third Circuit concluded that the ALJ had de facto reopened the plaintiff's first claim because "[i]t is apparent that the ALJ considered evidence that was relevant to [plaintiff's] first application and based its decision on all of the evidence." 40 Fed. App'x at 694. The court further reasoned:
The second application was filed on September 6, 1995, so benefits could only be awarded back to September 6, 1994. Yet the ALJ considered evidence of Kaszer's condition back in 1992 and 1993, a period for which Kaszer would not be entitled benefits under her second application. This is consistent with reconsidering Kaszer's first application, which was filed on December 1, 1993 and could award benefits back to December 1, 1992. The ALJ did not narrow the time period under consideration by using the decision on Kaszer's first application for its res judicata effects.Id. The court then acknowledged the case law that suggests that a claim is not de facto reopened if the ALJ considers earlier medical evidence for the purpose of determining disability within the twelve months prior to the later application. Id. at 694-95. "There is, admittedly, a fine line between considering a claimant's medical history solely for the purpose of establishing whether the claimant was disabled and actually reconsidering that evidence." Id. at 695. A fine line it is, but there is no indication that the ALJ crossed it. There is nothing in the record suggesting that the ALJ was considering years of evidence from 2010 forward solely for the purpose of determining disability for a more limited period of time.
Because Trotta's 2012 application was filed within twelve months of his initial denial, I do not need to address the issue of whether there must be "good cause" to reopen the claim. See Kaszer, 40 Fed. App'x at 691-92 (comparing Purter and Coup in order to determine whether there is a prerequisite requirement of finding "good cause" to reopen a claim that was filed more than twelve months after the initial denial, before determining whether the claim was de facto reopened). If filed within twelve months of the initial denial, a claim for benefits may be reopened "for any reason." 20 C.F.R. § 404.988(a).
Here, the Commissioner admits that the ALJ discussed all of the record evidence, but argues that it was necessary because Trotta used the same onset date for both his DIB and SSI claims and that it was important to understand Trotta's claim. Def. Suppl. Br. at 3. The Commissioner also relies on the fact that the ALJ, in his final paragraph, specifically denied Trotta's 2016 claim, not his 2011 claim. Id. Trotta, on the other hand, contends that his earlier claim was de facto reopened because the ALJ considered the merits of his claim, starting with evidence from March 2010 through the decision date, without limiting his review on res judicata grounds. Pl. Reply to Def. Suppl. Br. at 3-5.
Trotta primarily relies on the decision in Purter, where the Third Circuit found a claim to be de facto reopened because the "Secretary reconsidered [plaintiff's] claims on the merits and because there was good cause for reopening the earlier claims." Pl. Reply to Def. Suppl. Br. at 3 (quoting Purter, 771 F.2d at 696). No "good cause" finding to reopen the earlier claims would have been required here, according to the Commissioner's regulations. See 20 C.F.R. § 404.988(a), (b) (distinguishing between a determination that may be reopened for "any reason" (if filed within twelve months) and one that can be reopened for "good cause" (if filed within four years)). As explained in footnote three, supra, Trotta's 2012 DIB claim was filed within twelve months of the initial denial, and therefore the 2011 claim could be reopened for "any reason," not just "good cause."
In denying Trotta's claims, the ALJ reviewed record evidence that dated back to 2010, and then made a finding, on the merits, that Trotta was not disabled. See R. 846-62. There was no indication that the ALJ was reviewing older records solely for the light they shed on Mr. Trotta's disability for a more limited and more recent period of time. For example, the ALJ discusses, inter alia, Trotta's neurology treatment records from August 2010, May 2011, and March 2012. See R. 846-48. The ALJ even stated that "[a]fter careful consideration of all the evidence, the undersigned concludes the claimant has not been under a disability within the meaning of the Social Security Act from March 2, 2010, through the date of this decision." R.843. The plain meaning of this statement is that the ALJ considered and ruled on—without qualification to a limited timeframe—Trotta's disability within the entire period, from March 2010 through January 2017. The ALJ was aware of the consequences of not narrowing his review of the record, and yet still based his decision on evidence from the whole time period, starting in March 2010. At the very least, this statement is strong evidence that the ALJ did not apply res judicata to Trotta's earlier claim and de facto reopened it.
See also R. 845 (stating that the ALJ's findings of fact were based on a "careful consideration of the entire record" (emphasis added)).
The ALJ was in the best position to explain exactly on which side of Kaszer's "fine line" his review fell. See Kaszer, at 40 Fed. App'x at 695. The simplest way of dealing with the "fine line" would have been to make an explicit statement that the earlier case was or was not being reopened. A less simple option would have been to say that evidence from the date of application forward was only being examined for the light it shed on Trotta's disability status beginning on a later date. The ALJ did neither, but simply examined all the evidence going back to 2010 and made a non-disability assessment for the entire period claimed by Mr. Trotta.
The Commissioner believes that benefits should be awarded only for the twelve-month period before the filing of a claim in 2016. As I explained earlier, see note 22, the 2016 claim is a bit of a juridical poltergeist: an immaterial presence that keeps intruding on the concrete reality of this case.
Administrative Law Judges are typically quite sensitive to identifying evidence that precedes and is therefore not directly relevant to the claimed period of disability. Given their enormous workload, any circumstance that reduces the volume of evidence that must be reviewed to decide a case is noteworthy.
In light of the ease with which the issue could have been addressed during the administrative process, the burden of non-explanation must fall on the Commissioner, not Trotta. Given the absence of an explicit finding on the preclusive effect of the earlier decision, and the absence of evidence that the ALJ was taking a limited view of the disability period at stake in his analysis and decision, Coup directs a finding that the original petition was de facto reopened.
The Commissioner's argument that the earlier claim was not reopened, simply because the ALJ stated that the 2016 application was denied, is unpersuasive. Under this theory, an examination of the record by the district court to decide what effect was intended would never be necessary. All that would matter is that the ALJ denied a later application, even if the earlier application went entirely unmentioned. That is not what the case law contemplates. Applying Coup and Kaszer, the ALJ's failure to state that the earlier claim was not considered for res judicata reasons, combined with his substantive review of Trotta's records going back as early as 2010, effectively results in a rebuttable presumption that the ALJ reopened the 2011 claim and made a determination on the merits. That presumption has not been overcome by evidence in the record indicating that the ALJ's intention was otherwise. Therefore, I find that Trotta's DIB claim from 2011 was reopened, and his award of benefits should be calculated accordingly.
The ALJ's final statement that the 2016 DIB claim was denied, and the Commissioner's corresponding reliance on this statement, is puzzling, at best. As mentioned in footnote twenty-two, supra, the 2016 claim was not part of the administrative record filed in this case, nor was it included as one of the exhibits to the ALJ's opinion. See R. 863-69. There is no debate that the 2016 claim was not escalated to the ALJ for adjudication. See R. 843. At the outset of his opinion, the ALJ clearly indicated that he was adjudicating the earlier 2012 claims, which were before him (not the 2016 claim). See note twenty-two, supra. This confusion is another reason that supports my decision to direct the award of benefits rather than remand the case for reconsideration. --------
CONCLUSION
Based upon the above, Plaintiff Jonathan Trotta's Request for Review is granted. I find that the ALJ erred in disregarding Dr. Braun's equivalency opinion without substantial evidence, and in not adequately explaining his rationale for rejecting Dr. Langberg's and Dr. Lewis' opinions. The Commissioner's final decision is reversed and this matter remanded for the calculation and payment of benefits within sixty (60) days of this opinion and order.
BY THE COURT:
s/Richard A . Lloret
RICHARD A. LLORET
U.S. Magistrate Judge