Opinion
CIVIL ACTION NO. 19-2100
02-26-2020
PHILLIP H. WEST v. ANDREW M. SAUL, Commissioner of Social Security Administration
REPORT AND RECOMMENDATION
Plaintiff, Phillip H. West, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act").
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review ("Pl.'s Br."), defendant filed a Response to Plaintiff's Request for Review ("Def.'s Br."), and plaintiff filed a reply thereto ("Pl.'s Reply"). For the reasons set forth below, the court recommends that plaintiff's Request for Review be GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB on October 26, 2016, alleging disability beginning October 3, 2016. (R. 247-48.) Plaintiff's claim was denied initially and he filed a request for a hearing. (R. 62-97, 103-09.) A hearing was convened on April 15, 2018, before Administrative Law Judge ("ALJ") John Gehring, but was postponed shortly after it began so that plaintiff could obtain representation. (R. 34-39.) A second hearing was held on August 16, 2018, before ALJ Gehring. (R. 40-61.) Plaintiff, represented by counsel, appeared and testified. Donna Nealon, a vocational expert ("VE"), also appeared and testified. In a decision dated October 25, 2018, the ALJ found that plaintiff was not disabled under the Act. (R. 20-33.) The ALJ made the following findings:
Plaintiff also filed an application for supplemental security income ("SSI") benefits on December 14, 2015, alleging disability beginning September 24, 2015. (R. 237-245.) Although he filed claims for DIB and SSI, plaintiff presently seeks judicial review of the denial of DIB benefits only. Accordingly, the court will address plaintiff's DIB claim only.
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2020. He is 61 years old with a very good work history.
2. The claimant has not engaged in substantial gainful activity since October 3, 2016, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: residuals of fractures to the right femur, right ulna and sacrum, diabetes mellitus and obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except he is limited to routine, simple work; to no exposure to heights or hazardous machinery; to no excessive exposure to fumes, dust, odors, or extremes of temperature or humidity.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 29, 1957 and was 59 years old, which is defined as an individual of advanced age, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching retirement age (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).(R. 22-28.)
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 3, 2016, through the date of this decision (20 C.F.R. 404.1520(g)).
Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ's decision became the final decision of the Commissioner. (R. 1-6, 233-36.) Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S. 1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, "so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
To be eligible for benefits, the 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). Specifically, the impairments must be such that the claimant "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. § 423(d)(5).
The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 404.1520. This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of his age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
For purposes of this opinion, the court will refer to the version of the relevant regulation in effect at the time of the ALJ's decision on October 25, 2018.
III. BACKGROUND
At the commencement of the August 16, 2018 administrative hearing, plaintiff's counsel informed the ALJ that plaintiff's impairments followed a severe motorcycle accident which resulted in several fractures requiring multiple surgeries and ensuing low-back, knee, and shoulder pain and weakness. (R. 43.) Plaintiff avers that he is unable to return to his past work due to his injuries, and due to his age, should be found disabled under the Commissioner's regulations. (R. 43-44.)
Plaintiff testified that he was born on September 29, 1957, and thus was sixty years old on the date of the administrative hearing. (R. 46.) At the time of the administrative hearing, plaintiff lived with a member of his church. (R. 45.) Plaintiff earned an associate's degree in sociology and psychology. (R. 46-47.) Plaintiff does not have a driver's license; he was driven to the administrative hearing by the church member with whom he lived. (R. 47.)
Plaintiff explained that the "church member is kind enough to let me stay there because I was homeless, and really I'm pretty much on borrowed time now because I was supposed to be out of that residence by the end of last month because I wasn't on his lease." (R. 53.)
With respect to his daily activities, plaintiff indicated that he does not perform any household chores such as cooking, shopping, or cleaning. (R. 53.) Plaintiff does not have any pets and does not participate in social clubs. (R. 53-54.) He sometimes watches television, but explained that he wears glasses and watching television bothers his eyes. (R. 53.)
With respect to his work history, plaintiff testified that when he worked for Pennsylvania Transit Company, he was a supervisor and was responsible for scheduling transportation for the firm's clients. (R. 48, 52.) In this job, plaintiff also was required to inspect vehicles and to fill-in as a driver if needed in an emergency. (R. 48.) In addition, plaintiff worked for Security Alarm Monitoring Incorporated and Universal Atlantic Systems Incorporated, alarm systems companies that monitored residential and commercial properties. (R. 49.) Plaintiff was responsible for implementing the proper protocol when a signal was activated. Id. Plaintiff's past work also included employment by a technical staffing company that placed him with Vanguard as a global support specialist. (R. 49-50.) In this role, plaintiff worked as a monitor and was responsible for assigning work crews to various tasks. (R. 50.) Plaintiff also worked for a trucking company, scheduling drivers and shipments. (R. 51.) This position required plaintiff to move among various departments of the building in which he worked. Id. In the year prior to the administrative hearing, plaintiff attempted to work as a parking lot cashier, but was unable to maintain such employment because he could not find private transportation to the job, and due to his impairments, was unable to utilize public transportation. (R. 52.)
In response to questioning by his attorney, plaintiff elaborated that he would be unable to perform the systems monitor jobs given his current condition because he would have difficulty remembering the proper protocols due to the side-effects of medication. (R. 55.) Additionally, plaintiff testified that he would be unable to perform the dispatcher job for similar reasons. (R. 55-56.)
When asked by the ALJ whether he could perform unskilled work such as dusting desks and emptying waste baskets for eight hours per day and forty hours per week, plaintiff indicated that he would be unable to perform such work because his thumb is dislocated and he is unable to lift anything that weighs greater than a gallon of milk. (R. 54.) Plaintiff also explained that he is unable to stoop or bend due to back pain, and that if he does bend, he experiences dizziness. Id. Plaintiff also described occasional sharp, shooting pains in his legs and right shoulder pain. Id. Moreover, the pain plaintiff experiences affects his ability to sit for long periods of time. (R. 56.) Plaintiff stated that he is most comfortable when laying down, and needs to lay down twice per day for approximately twenty to thirty-minute periods. (R. 57.)
The VE testified that plaintiff's past work as a "dispatcher, service, chief" is skilled, sedentary work pursuant to the Dictionary of Occupational Titles ("DOT"), but was performed by plaintiff at the medium level of exertion. (R. 58.) In addition, the VE classified plaintiff's work at J.W. Fleet as a "taxicab starter," which is semi-skilled, sedentary work, that plaintiff performed at the light level of exertion. Id. Plaintiff's past work also included employment as a "surveillance system monitor" which was unskilled, sedentary work that was performed by plaintiff at the light level of exertion. Id. The VE indicated that her testimony was consistent with the DOT. Id.
The ALJ asked the VE to consider a hypothetical individual of the same age, education, and work experience as plaintiff, who retains the residual functional capacity ("RFC") for medium work, but who is further limited as follows: "dealing with routine, simple work; of course, no working at heights; no hazardous machinery and no excessive exposure to fumes, dust, odors, temperature and humidity extremes." Id. The VE testified that such hypothetical individual could not perform any of plaintiff's past work, including the work as a surveillance system monitor because it is currently classified as a semi-skilled position. (R. 59.) However, the VE testified that the hypothetical individual could perform the following jobs: "laundry laborer" (for which there are approximately 402,000 jobs in the national economy), "hand packer" (for which there are approximately 701,000 jobs in the national economy), and "counter supply worker" (for which there are approximately 437,000 jobs in the national economy). Id.
In response to the ALJ's question, the VE also testified that the hypothetical individual could not perform substantial gainful employment if he were further limited in that he "would require unannounced breaks and would miss in excess of three days a month due to symptomology or medical treatment." Id. In response to questioning by plaintiff's attorney, the VE confirmed that the jobs she identified in response to the first hypothetical question are not in the same industry as plaintiff's past work, and furthermore, they are unskilled jobs. (R. 60.) The VE also confirmed that if a person were limited to simple, routine work and could not lift more than a gallon of milk, he would not be able to do anything more than unskilled, sedentary jobs. Id.
At the close of the hearing, the ALJ noted that he would keep the administrative record open for a period of time for the further submission by plaintiff of recent medical records. (R. 60-61.)
IV. DISCUSSION
The ALJ found that the evidence of record supports a finding that plaintiff has severe impairments but which do not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 23.) Ultimately, the ALJ concluded that plaintiff retains the residual functional capacity ("RFC") to perform a range of medium work as detailed in his decision. See id. Plaintiff presently contends that substantial evidence does not support the ALJ's decision. Specifically, plaintiff argues that the ALJ erred in formulating plaintiff's RFC. (Pl.'s Br. at 5-12; Pl.'s Reply at 1-4.) Defendant maintains that substantial evidence supports the decision of the ALJ. (Def.'s Br. at 3-10.)
Pursuant to the Commissioner's regulations, RFC refers to the most a claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The RFC assessment must be based upon all relevant evidence, including medical records, medical source opinions, and a claimant's description of his own symptoms. The final responsibility for determining a claimant's RFC is reserved exclusively for the Commissioner, who will not give any special significance to the source of another opinion on this issue. 20 C.F.R. § 404.1527(d). Pursuant to the regulations in effect at the time of the ALJ's decision, an ALJ must give medical opinions the weight he deems appropriate based on factors such as whether the physician examined or treated the claimant, whether the opinion is supported by medical signs and laboratory findings, and whether the opinion is consistent with the record as a whole. See 20 C.F.R. § 404.1527.
The court notes that 20 C.F.R. § 404.1527, rather than 20 C.F.R. § 404.1520c, applies because plaintiff's claim was filed before March 27, 2017.
When formulating plaintiff's RFC, the ALJ addressed the evidence of record pertaining to plaintiff's claims that he is unable to work due to various health issues. See R. 24-27. In a detailed decision, the ALJ analyzed, inter alia, plaintiff's testimony at the administrative hearing and the February 2016 and December 2016 Function Reports completed by plaintiff. (R. 24.) The ALJ also summarized the medical record evidence, see R. 24-26, and considered and analyzed the opinion of Michael Lombard, M.D., the State agency medical consultant who reviewed the evidence in January 2017, see R. 26, and who limited plaintiff to, inter alia, frequently lifting ten pounds and occasionally lifting twenty pounds, and standing, walking and sitting for six hours in an eight hour work day, see R. 85.
In his decision, the ALJ acknowledged that Dr. Lombard reviewed the evidence in January 2017 and found that plaintiff was limited to "lifting/carrying 10 pounds frequently and 20 pounds occasionally; to sitting, standing or walking about 6 hours each in an 8-hour workday; to occasionally performing postural activities; and to avoiding concentrated exposure to extreme cold and vibration." (R. 26.) The ALJ attributed only "some weight" to this opinion, however, reasoning that "a review of the medical evidence and the claimant's statements reveal that the claimant is capable of lifting more than 20 pounds without postural limitations." Id. The ALJ offered no further explanation for this specific determination.
Plaintiff argues that Dr. Lombard's opinion supports his claim of greater limitations than acknowledged by the ALJ. As an initial matter, plaintiff avers that if plaintiff's claim was evaluated in accordance with the Medical-Vocational Guidelines (the "Grids"), due to plaintiff's impairments and his age, plaintiff could be deemed disabled under the Grids if he were limited to sedentary or light work, but would be deemed "not disabled" under the Grids if he were capable of medium work. See Pl.'s Br. at 5-6. See also 20 C.F.R. Pt. 404, Subpt. P, App. 2. That is, plaintiff contends that "the only way to deny disability benefits to Mr. West was to find that he was capable of performing work at the medium exertional level, requiring the ability to stand and walk throughout an eight-hour workday and lift and carry 50 pounds occasionally and 25 pounds frequently." Id. at 5 (citing 20 C.F.R. § 404.1567(c)). Plaintiff further avers that there was no opinion from any physician that plaintiff could perform medium work. Id. at 5-6. Thus, plaintiff asserts that in reaching the determination that plaintiff retained an RFC for a limited range of medium work, the ALJ rejected the only medical opinion of record and did not offer a sufficient reason for concluding that plaintiff is capable of lifting more than twenty pounds, as limited by Dr. Lombard. See Pl.'s Br. at 5-12; Pl.'s Reply at 1-4. The court agrees with plaintiff that the ALJ's RFC analysis is not supported by substantial evidence.
Pursuant to the Commissioner's regulations, light work is defined as work that:
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b). In addition, medium work is defined as work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. § 404.1567(c).
Of course, because the ALJ also determined that plaintiff has nonexertional impairments, the Commissioner could not meet the step five burden by relying exclusively on the Grids. See Sykes v. Apfel, 228 F.3d 259, 270 (3d Cir. 2000) ("The grids establish, for exertional impairments only, that jobs exist in the national economy that people with those impairments can perform. When a claimant has an additional nonexertional impairment, the question whether that impairment diminishes his residual functional capacity is functionally the same as the question whether there are jobs in the national economy that he can perform given his combination of impairments. The grids do not purport to answer this question, and thus . . . the practice of the ALJ determining without taking additional evidence the effect of the nonexertional impairment on residual functional capacity cannot stand."). See also Godschall v. Saul, 2019 WL 6974974, at *4 (E.D. Pa. Dec. 20, 2019) ("Because Godschall's ability to perform medium work was impeded by nonexertional limitations, the ALJ was required to rely on a vocational examiner's testimony to reach her final determination regarding his eligibility to receive DIB.") (citing Sykes, 228 F.3d at 270). Here, the ALJ did not rely solely upon the Grids, but instead, relied upon the VE's testimony at step five.
Although the ALJ offered a detailed review of the medical evidence in his decision, see R. 24-26, evidence in the treatment records document other findings that are not reflected in the ALJ's analysis which do not support the ALJ's determination that plaintiff is capable of medium work, and which support plaintiff's argument that he suffers from greater restrictions. For example, in analyzing the March 24, 2017 primary care treatment records, the ALJ noted that plaintiff "was 'very stressed' because he had no income . . ., [that he] also reported that he was working with an attorney to get disability and that he had been let go from his previous job after his accident." (R. 25.) The ALJ further noted plaintiff's inability to type fast enough to return to his dispatcher position, that his hypertension was stable on medication, and that plaintiff weighed 239.4 pounds and had a BMI of 37.08. Id. The ALJ concluded that plaintiff's "physical examination was otherwise unremarkable and the claimant's mental status was within normal limits." (R. 25-26.) However, the ALJ failed to acknowledge that the March 2017 treatment notes also indicate that plaintiff demonstrated a "decreased [range of motion] right leg and right arm/hand." (R. 776.) The ALJ also did not acknowledge that the physical examination revealed weakness in plaintiff's right leg. See id.
Additionally, when discussing the most recent primary care notes dated July 17, 2018, the ALJ stated:
[Such treatment notes] showed that the claimant complained of new stiffness in his right shoulder and neck (Exhibit 11F). He also complained of pelvic pain. His hypertension and diabetes remained fairly controlled with medication. Notes generally showed that the claimant had not been able to work since his accident due to pain. On examination, the claimant has pain and restricted range of motion in the right shoulder and positive straight leg raising on the right. He was examined by Raksha Rivedi, M.D. who ordered x-rays, recommended physical therapy, and ordered updated lab work.(R. 26.) However, a review of the July 2018 primary care treatment notes also reflect that plaintiff complained of right shoulder pain and weakness in his "left thigh area." (R. 800.) In addition, plaintiff complained of "numbness and tingling." Id. Indeed, plaintiff was diagnosed with right shoulder pain and a prescription for Cyclobenzaprine was continued to address muscle spasm in this area. (R. 802.)
This court is cognizant of the fact that there is "no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record," Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) (not precedential), and that "[a]n ALJ may accept some of a medical source's opinions while rejecting other opinions from the same source." Comiskey v. Astrue, 2010 WL 308979, at *9 (E.D. Pa. Jan. 27, 2010) (citing Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-04 (3d Cir. 2008)). However, an ALJ may not "'pick and choose' among the evidence, selecting only that which supports his ultimate conclusions." Middlemas v. Astrue, 2009 WL 578406, at *9 (W.D. Pa. Mar. 5, 2009) (citing Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (an ALJ may not simply rely on "the pieces of the examination reports that supported [his] determination," while excluding other evidence)).
Additionally, case law guides that an ALJ "may not reject pertinent or probative evidence without explanation." Johnson, 529 F.3d at 204. The ALJ must provide not only an expression of the evidence he considered which supports the result, but also some indication of the evidence which was rejected. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Id. See also Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) ("Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.").
As set forth supra, the medical records document plaintiff's allegations that he continues to experience pain in his back, lower extremities, and upper extremities since the September 2015 motorcycle accident for which he underwent multiple surgeries. In November 2016, plaintiff demonstrated an unsteady gait and had trace pedal edema on both left and right. (R. 740.) In March 2017, treatment notes reflect that plaintiff complained of "joint pain, stiffness, arthritis, loss of strength and muscle aches." (R. 775.) He demonstrated decreased range of motion in the right leg and "right arm/hand." (R. 776.) The results of this physical examination also indicate that plaintiff demonstrated right leg weakness. Id. In October 2017, plaintiff continued to report back and leg pain. (R. 763.) In July 2018, plaintiff reported right shoulder pain and weakness in his left thigh, as well as numbness and tingling. (R. 800.) Physical examination revealed restricted range of motion in plaintiff's right shoulder; plaintiff also demonstrated a positive straight leg raising test on the right. (R. 801.) Despite these findings, the ALJ discounted Dr. Lombard's opinion, reasoning that that "a review of the medical evidence and the claimant's statements reveal that the claimant is capable of lifting more than 20 pounds without postural limitations," and instead determined that plaintiff is capable of a range of medium work, which requires "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." It is unclear from the ALJ's decision, however, how the evidence supports that determination.
The ALJ's summary of the case sheds no further light on his reasoning that plaintiff is capable of medium work. The ALJ stated:
In sum, the above residual functional capacity assessment is supported by the longitudinal evidence of record. The claimant suffered significant injuries in an accident in September 2015, but by December 2015, orthopedic records showed that he was able to return to work when he was ready. Subsequent treatment note[s] showed that the claimant was independent in daily activities, he only took over-the-counter pain medications, and he was able to ambulate with a cane. Giving the claimant all benefit of the doubt, the undersigned allowed for a limitation to medium work and allowed additional restrictions to routine, simple, work and environmental limitations, but these additional restrictions do not preclude all work.(R. 27.)
Furthermore, while the ALJ was not required to adopt each restriction noted in Dr. Lombard's opinion, the ALJ was required to evaluate the opinion evidence in accordance with the proper standards. The ALJ's proffered reason for discounting Dr. Lombard's opinion was insufficient, given the other evidence in the record which appears to contradict the ALJ's determination. See Moye v. Berryhill, 2018 WL 4770680, at *5 (E.D. Pa. Oct. 2, 2018) (Leeson, J.) ("The medical evidence does not support the ALJ's conclusion that Moye had the residual functional capacity to perform light work, and the ALJ does not satisfactorily explain Dr. Rubenfeld's contradictory opinion that Moye was limited to sedentary work."). If the ALJ excluded relevant evidence from the RFC analysis for some reason, he failed to provide such a reason and erred in so doing. The substantial evidence test is not satisfied if the ALJ "ignores, or fails to resolve, a conflict created by countervailing evidence." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). See also Nazario v. Comm'r Soc. Sec., 2019 WL 6170820, at *4 (3d Cir. Nov. 20, 2019) (not precedential) (same).
The court is mindful that this court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at 1190-91. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2012) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); Burns, 312 F.3d at 118 ("We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder."). See also Cortes v. Comm'r of Soc. Sec., 255 F. App'x 646, 653 (3d Cir. 2007) (not precedential) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (quoting S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (1943)); Clinkscales o/b/o T.S. v. Colvin, 232 F. Supp. 3d 725, 735-36 (E.D. Pa. 2017) (same).
If the ALJ again determines that plaintiff retains the RFC to perform a range of medium work, he must provide an adequate basis for that determination. Upon remand, the Commissioner may well reach the same conclusion; however, in the absence of sufficient indication that the Commissioner considered all of the evidence in the case and applied the correct legal standards, this court cannot satisfy its obligation to determine whether substantial evidence supports the Commissioner's decision. See Terwilliger v. Chater, 945 F. Supp. 836, 844 (E.D. Pa. 1996) (remanding case in the absence of sufficient indication that the Commissioner considered all of the evidence).
Plaintiff requests that the court award benefits rather than remand for further proceedings. See Pl.'s Br. at 12. A district court, after reviewing the entire record may affirm, modify, or reverse the decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984). See also 42 U.S.C. § 405(g) (sentence four). In considering an appeal from a denial of benefits, remand is appropriate "where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff's claim for disability benefits." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (internal quotation marks omitted) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). A decision to "award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits." Podedworny, 745 F.2d at 221-22 (citations omitted). See also Gilliland v. Heckler, 786 F.2d 178, 184-85 (3d Cir. 1986) (citations omitted) (decision to direct the award of benefits should be made only when administrative record has been fully developed and when substantial evidence on the record as a whole indicates claimant is disabled and entitled to benefits). Here, it is unclear whether the record has been fully developed. As such, the court recommends that the case be remanded for further development.
V. CONCLUSION
After a careful and thorough review of all of the evidence in the record, and for the reasons set forth above, this court finds that the ALJ's findings are not supported by substantial evidence. Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 26th day of February, 2020, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's response, and plaintiff's reply thereto, it is respectfully recommended that plaintiff's Request for Review be GRANTED.
The parties may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge ORDER
AND NOW, this day of , 2020, upon consideration of Plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's Response to Request for Review of Plaintiff, and plaintiff's reply thereto, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby
ORDERED
1. The Report and Recommendation is APPROVED and ADOPTED.
2. Plaintiff's Request for Review is GRANTED, and the decision of the Commissioner of the Social Security Administration is REVERSED to the extent that the matter is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with United States Magistrate Judge Thomas J. Rueter's Report and Recommendation.
3. Judgment is entered in favor of plaintiff, reversing the decision of the Commissioner for the purpose of this remand only.
BY THE COURT:
/s/_________
JOSEPH F. LEESON, Jr., J.