Opinion
CIVIL ACTION NO. 3:17-CV-01219
04-16-2018
DEBORAH L. ANSTEY, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.
(Chief Judge Conner)
( ) REPORT AND RECOMMENDATION
I. Introduction
This is an action brought under Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §405(g) and 42 U.S.C. § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Deborah L. Anstey's ("Ms. Anstey") claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, it is recommended that the final decision of the Commissioner of Social Security be VACATED, and that Ms. Anstey's request for the award of benefits or a new administrative hearing be GRANTED.
II. Procedural History and Background
Ms. Anstey is a high school graduate and attended three years of college. Tr.173. She has previous work experience as a student helper, a government inspector, and an owner of an auction house. Id. Ms. Anstey attempted to return to the work force as a cashier in November of 2013, but ultimately quit after a few weeks of employment. Tr.53; 155. At the time of her applications, Ms. Anstey lived with her family and cared for her ill fiancé. Tr.190-191. She had no difficulty with personal care, prepared meals daily, and performed most household chores. Tr.191-192. Ms. Anstey was able to drive, and shopped in stores or online. Tr.193. She enjoyed working on puzzles, playing games, and watching television and movies at home. Tr. 194. She spent time with her family and attended weekly medical and chemotherapy appointments with her fiancé. Id.
The Social Security Administration determined her work activity was considered an unsuccessful work attempt. Tr.164-167.
Sadly, during the pendency of these proceedings, Ms. Anstey's fiancé passed away. Tr.51.
In June of 2002, Ms. Anstey underwent a spinal fusion for treatment of congenital kyphosis. Tr.241. Dr. Gillick of Scranton Orthopaedic Specialist P.C. performed the successful procedure, which resulted in significant pain reduction and improved range of motion for Ms. Anstey. Tr.287. She continued working until June 1, 2012. Tr.172. Ongoing pain from Ms. Anstey's spinal fusion is the basis of her claim for disability. Tr.197-198.
Kyphosis is defined as an "abnormally increased convexity in the curvature of the thoracic spine as viewed from the side; hunchback." Dorland's Illustrated Medical Dictionary, 886 (27th Ed.1988).
Following her spinal fusion, Ms. Anstey presented to Dr. Gillick several times prior to the alleged disability onset date. On April 15, 2009, Ms. Anstey followed up with Dr. Gillick complaining of severe pain in her back on her left side. Tr.239. Dr. Gillick reviewed previous X-rays, and opined that she displayed excellent correction from her spinal fusion. Id. Nine months later, on January 11, 2011, Ms. Anstey returned, complaining of pain and discomfort. Tr.237. Dr. Gillick observed tenderness near the iliac crest incision. Id. Ms. Anstey received a trigger injection at the tender spot. Id. On March 7, 2011, Ms. Anstey followed up with Dr. Gillick, complaining of no relief from the trigger injection. Tr.236. Dr. Gillick performed another trigger injection but this time he inserted the injection directly into the bone. Id.
On December 4, 2013, Ms. Anstey protectively filed a claim for supplemental security income under Title XVI of the Social Security Act, alleging a disability onset date of August 1, 2013. Tr.122-127. On April 3, 2014, Ms. Anstey protectively filed a claim for disability insurance benefits under Title II of the Social Security Act, alleging a disability onset date of August 1, 2013. Tr.122-127. Ms. Anstey alleges she is disabled because of her spinal fusion. Tr.172. Ms. Anstey was born on September 5, 1976, and at the time of alleged onset of disability date, Ms. Anstey was thirty seven-years old, and thus was defined as a "younger individual" under the regulations promulgated under the authority of the Act. Tr.168.
See 20 C.F.R. §§ 404.1563(c), 416.963(c) (defining a younger person as one who is under age 50 and, generally, whose age will not seriously affect his ability to adjust to other work).
Shortly after Ms. Anstey submitted her Title XVI application, the Bureau of Disability Determination requested Ms. Anstey undergo a consultative examination. On February 6, 2014, Dr. Murray conducted a disability evaluation. Tr.241. A physical examination revealed decreased range of motion in Ms. Anstey's shoulders and lumbar spine. Tr.242-243. A neurological examination revealed full motor strength in her upper extremities, intact sensation, and diminished motor strength in her lower extremities. Tr.243. Dr. Murray observed that her gait was stiff and antalgic, favoring the right hip. Id. Dr. Murray assessed Ms. Anstey with the following: spinal fusion T1-L2; chronic pain syndrome; pain in the right iliac crest/hip at the bone grafting; and pain in the upper back between the shoulder blades. Id. Dr. Murray ordered an X-ray of her spine, which revealed mild degenerative disc disease in the lumbar, cervical, and thoracic spine. Tr.246-247. Dr. Murray also completed a medical source statement of ability to do work-related physical activities, and opined that Ms. Anstey could never lift and carry up to ten pounds; never reach, push, or pull; never balance, stoop, kneel, crouch, crawl, or climb stairs, ramps, ladders or scaffolds, occasionally handle and finger bilaterally; and never operate foot controls with her right foot or perform postural activities, including overhead reaching. Tr.250-254.
On March 24, 2014, state agency physician Dr. Smith assessed Ms. Anstey's physical residual functional capacity ("RFC") after reviewing the medical evidence of record that was available to her. Tr.85-87. Dr. Smith assessed that Ms. Anstey possessed the following exertional limitations: occasionally lift and/or carry (including upward pulling) twenty pounds; frequently lift and/or carry (including upward pulling) ten pounds; stand and/or walk (with normal breaks) for a total of about six hours per eight-hour workday, sit (with normal breaks) for a total of about six hours per eight-hour workday; and limited in her right lower extremity in her ability to push and/or pull (including operation of hand and/or foot controls). Tr.86. Dr. Smith determined that Ms. Anstey had postural limitations, limiting Ms. Anstey to the following: frequently stoop, kneel, crouch, and crawl' never climb ladders/ropes/scaffolds; and no limitations in climbing ramps/stairs and balancing. Id. Dr. Smith also assessed that Ms. Anstey had no manipulative, visual, or communicative limitations. Tr.86-87. Dr. Smith determined Ms. Anstey also had environmental limitations, and that she should avoid concentrated exposure to the following: extreme cold; extreme heat; wetness; humidity; noise; vibration; fumes; odors; dusts; gases; poor ventilation; and hazards. Tr.87.
Ms. Anstey returned to Dr. Gillick on February 3, 2014, over three years after her last appointment with him. Tr.258. She complained of increased back pain that radiated into her right leg. Id. Ms. Anstey reported she used Ibuprofen to control her symptoms. Id. Upon examination, Dr. Gillick observed tenderness in her cervical/thoracic area, as well as the low lumber lumbosacral area. Id. Dr. Gillick was not clear what the etiology of her pain was, and noted that because she did not have insurance, no physical therapy or MRI could be performed at the time. Id. Dr. Gillick prescribed Flexeril and Tramadol. Id. Ms. Anstey followed up with Dr. Gillick three months later, with similar findings. Tr.259. Dr. Gillick renewed her Flexeril script, and also prescribed Ibuprofen 800. Id. Dr. Gillick noted that Ms. Anstey did not have health insurance. Id.
On March 28, 2014, Ms. Anstey's claims were denied at the initial level of administrative review. Tr.104-111. At this level of review, the adjudicator found that Ms. Anstey had the following medically determinable impairment: spine disorders. Tr.84. The adjudicator determined that Ms. Anstey was "not disabled" because she had the RFC to perform her past relevant work as an inspector. Tr.89. On April 25, 2014, Ms. Anstey filed a request for an administrative hearing. Tr.114-115.
Dr. Gillick completed a medical source statement on July 21, 2014. Tr.255-257. Dr. Gillick opined that Ms. Anstey could lift ten pounds occasionally; sit for six hours in an eight-hour workday; stand for two hours in an eight-hour workday; sit/stand at will; extra work breaks; and would be absent from work at least two days per month. Id.
Ms. Anstey saw Dr. Montgomery on June 26, 2015, complaining of a muscle spasm in her back that caused headaches. Tr.271. Dr. Montgomery diagnosed Ms. Anstey with degenerative disc disease of the lumbar spine, prescribed her Baclofen, a muscle relaxant, and referred her to a physiatrist. Tr.272. Ms. Anstey presented to Dr. Horchos of Northeastern Rehabilitation Associates, P.C. on August 6, 2015 by referral from Dr. Montgomery for a comprehensive physiatric evaluation. Tr.287. After an examination, Dr. Horchos observed that Ms. Anstey had good cervical range of motion, adequate upper extremity strength, and mildly limited forward flexion. Tr.288. Dr. Horchos opined that Ms. Anstey would benefit from PRP injections, and possibly Botox injections to ease her symptoms. Id. Dr. Horchos diagnosed Ms. Anstey with thoracic pain, facet syndrome, and neuritis/radiculitis. Id.
Ms. Anstey followed up again with Dr. Gillick on September 14, 2015. Tr.296. An examination revealed tenderness and pain with flexion and extension, normal motor and sensory findings, and negative straight leg raising test results. Id. Dr. Gillick recommended an MRI to try to determine what the root of her pain is. Id.
On September 29, 2015, Ms. Anstey appeared and testified during a hearing before the ALJ with the assistance of counsel. Tr.44-79. In addition, impartial vocational expert Patricia L. Chilleri testified. Id. At the hearing, Ms. Anstey testified that her condition has gotten progressively worse over the last several months. Tr.53. She explained that she cannot be on her feet comfortably for more than an hour, and cannot sit for more than twenty minutes before she needs to stand up. Tr.53-54. Ms. Anstey testified that standing still in one spot is painful, and described the pain as "nails going into my heels" and "like getting stuck with a hot poker." Tr.68. Ms. Anstey reported that she suffers from stabbing pain and numbness, as well as daily headaches. Tr.54; 66. She explained that in order to fall asleep at night, she has to numb her hip and lower back before she can fall asleep. Tr.67. She testified that she takes Neurontin for nerve pain and Baclofen, a muscle relaxer. Tr.57. She does not take any narcotic pain medication, except for when the pain is "terrible." Id. Ms. Anstey testified that she is able to "do a lot less" and "it takes a lot longer than it used to." Tr.62.
Dr. Gillick saw Ms. Anstey on September 30, 2015 to discuss the results of her MRI taken five days prior. Tr.299. Ms. Anstey complained of bitter pain in her low back and numbness in her hands and legs. Id. Upon examination, Dr. Gillick observed tenderness over the posterior spine on the right side, as well as pain with gentle flexion and extension. Id. Ms. Anstey's straight leg test caused increased back pain. Id. Dr. Gillick determined that with the exception of some degenerative change in the facets, possibly L2-3, she has no significant stenosis. Id. Dr. Gillick opined that her spinal fusion is not a contributing factor to any of her current pain issues. Id. She received another injection at the iliac crest graft site, and was told to follow up. Id.
On November 25, 2015, the ALJ denied Ms. Anstey's applications for benefits in a written decision. Tr.6-23. The ALJ concluded that Ms. Anstey was 'not disabled' because she could engage in a limited range of sedentary work that did not preclude her from performing other work that existed in the national economy during the relevant period. Tr.18. After the ALJ denied her applications, Ms. Anstey sought review of her claim by the Appeals Council. Tr.121. On May 15, 2017, the Appeals Council denied Ms. Anstey's request for review. Tr.1-5. This denial makes the ALJ's November 25, 2015 decision the final decision of the Commissioner subject to judicial review.
On July 11, 2017, Ms. Anstey initiated this action by filing a complaint. Doc.1. Ms. Anstey claims that the ALJ's decision is not supported by the substantial evidence of record because the record demonstrates greater restrictions. Doc.1 at 2. As relief, she requests that this Court reverse the ALJ's decision and award benefits. Doc.1 at 3. On September 12, 2017, the Commissioner filed an answer to Ms. Anstey's complaint. Doc.5. In her answer, the Commissioner maintains that the decision denying Ms. Anstey's applications for benefits is correct and in accordance with the law and regulations, and that the Commissioner's findings of fact are supported by substantial evidence. Doc.5 at 3. Together with her answer, the Commissioner filed a certified transcript of the administrative proceedings in this case. Doc.6. This matter has been fully briefed by the parties and is ripe for decision. Doc.11; Doc.12.
III. Standard of Review
To receive benefits under Title II or Title XVI of the Social Security Act, 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); 42 U.S.C. §1382c(a)(3)(A). To satisfy this requirement, the claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in significant number in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B). In addition, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. §423(a); 20 C.F.R. §404.131.
In evaluating the question of whether a claimant is under a disability as it is defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. §404.1520(a); 20 C.F.R. §416.920(a). Under this process, the Commissioner must determine, in sequence: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals the severity of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 ("Listing of Impairments"); (4) whether the claimant is able to do her past relevant work, considering her RFC; and, (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering her current RFC, age, education, and work experience. 20 C.F.R. §404.1520(a); 20 C.F.R. §416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents her from doing her past relevant work. 20 C.F.R. §404.1512(a); 20 C.F.R. §416.912(a). Once the claimant has established at Step Four that she cannot do past relevant work, the burden then shifts to the Commissioner at Step Five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with her RFC, age, education, and past work experience. 20 C.F.R. §404.1512(f); 20 C.F.R. §416.912(f).
A claimant's RFC is the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1); see also Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). Before the ALJ goes from step three to step four, he or she assesses the claimant's RFC. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4). The RFC is used at step four and step five to evaluate the claimant's case. Id.
New versions of 20 C.F.R. §404.1512, and 20 C.F.R. §416.912 have been published since the ALJ issued her decision in this case. After reviewing these changes, we note that they do not materially alter the proposition that a claimant bears the initial burden of demonstrating that he or she cannot engage in other work, or that the Commissioner must provide evidence about the existence of other work in the national economy that the claimant can perform. See 20 C.F.R. §404.1512(a)(1)(effective Mar. 27, 2017); 20 C.F.R. §404.1512(b)(3)(effective Mar. 27, 2017); 20 C.F.R. §416.912(a)(1)(effective Mar. 27, 2017); 20 C.F.R. §416.912(b)(3)(effective Mar. 27, 2017).
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court, therefore, is not whether Ms. Anstey is disabled, but whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.")(alterations omitted); Burton v. Schweiker, 512 F.Supp.913, 914 (W.D.Pa. 1981)("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
IV. The ALJ's Decision
In her decision denying Ms. Anstey's applications for benefits, the ALJ found that Ms. Anstey met the insured status requirement of the Social Security Act through December 31, 2016. Tr.11. The ALJ then evaluated Ms. Anstey's claims at each step of the sequential evaluation process.
At Step One, the ALJ found that Ms. Anstey has not engaged in substantial gainful activity since her alleged onset date of August 1, 2013. Tr.13. The ALJ noted that Ms. Anstey did earn wages after the alleged onset date; however, the ALJ acknowledged that this work activity did not rise to the level of substantial gainful activity. Id.
At Step Two, the ALJ found that Ms. Anstey had the following medically determinable severe impairments: degenerative disc disease of the cervical spine, thoracic spine, and lumbar spine; lumbar radiculopathy in right leg; and status post spinal fusion T1-L2 for congenital kyphosis. Tr.11-12. The ALJ found that Ms. Anstey had the following non-severe impairments: chronic pain syndrome; gastro esophageal reflux disease; depression; cholecystectomy; fibrocystic breast disease; post-coital bleeding; excessive or frequent menstruation; irregular menstrual cycle; cholelithiasis; dermatitis; and palpitations. Tr.12. At Step Three, the ALJ found that, during the relevant period, Ms. Anstey did not have an impairment or combination of impairments that met or medically equaled an impairment listed in the version of 20 C.F.R. Part 404, Subpart P, Appendix 1 in effect on the date the ALJ issued her decision. Id.
Between Steps Three and Four, the ALJ evaluated Ms. Anstey's RFC. As part of this evaluation, the ALJ took into consideration of all of the medical evidence of record, as well as Ms. Anstey's testimony. Tr.13-17. The ALJ also took into consideration opinion evidence from the following: state agency physician Dr. Smith; consultative examining physician Dr. Murray; and treating physician Dr. Gillick. Tr.15-17.
The ALJ found that, during the relevant period, Ms. Anstey had the RFC to perform sedentary work, except that:
she must be afforded the option to stand after sitting for twenty minutes. She is also limited to occupations that require no more than occasional postural maneuvers, such as balancing, stooping, or k[n]eeling, and climbing on ramps and stairs. She must avoid occupations that require climbing on ladders, ropes, or scaffolds, crouching, or crawling. She must also avoid occupations that require pushing or pulling with the lower right extremity to include operation of pedals and occupations that require overhead reaching, or pushing
and pulling with the upper extremities to include operation of hand levels or overhead work. Additionally, she must also avoid concentrated prolonged exposure to temperature extremes, vibration, extreme wetness, extreme humidity, and exposure to hazards such as dangerous machinery and unprotected heights. Furthermore, due to pain and side effects from her medication, she is limited to occupations requiring no more than simple, routine tasks, not performed in a fast paced production environment, involving only simple, work-related decisions, and in general, relatively few work place changes.Tr.13.
At Step Four, the ALJ found that, based on the above-quoted RFC, Ms. Anstey was unable to perform her past relevant work. Tr.17. The ALJ noted that Ms. Anstey's past relevant work included the exertional demands and skill levels as follows: student helper-light in exertional demand, semi-skilled in nature; government inspector-light in exertional demand, skilled in nature; and mental health specialist/technician-medium in exertional demand, semi-skilled in nature. Id.
Though this occupation is medium in exertional demand, the ALJ determined that Ms. Anstey may have performed this at a very heavy exertional level. Tr.17. Ms. Anstey testified that in this position, there were times that she would have to restrain special-needs children. Tr. 74.
At Step Five, the ALJ found that, based on the above quoted RFC, and considering Ms. Anstey's age, education, work experience, and residual functional capacity, jobs existed in significant numbers in the national economy that Ms. Anstey could perform. Id. The ALJ explained that if Ms. Anstey had the RFC to perform the full range of sedentary work, a finding of "not disabled" would be directed by Medical-Vocational Rule 201.28, but because Ms. Anstey is impeded by additional limitations, the ALJ relied upon testimony from the vocational expert to determine if these limitations eroded the unskilled sedentary occupational base. Tr.18. Based upon the vocational expert's testimony, the ALJ determined Ms. Anstey is able to perform the following unskilled in nature and sedentary exertion occupations: order clerk; record clerk; and administrative support worker. Id. The ALJ determined that pursuant to the guidelines set forth in SSR 00-4p, the vocational expert's testimony was consistent with the information published in the DOT. Id. Thus, the ALJ rendered a finding of not disabled. Id.
DOT # 209.567-014; 18,900 jobs nationally.
DOT # 219.587-010; 25,300 jobs nationally.
DOT # 249.587-018; 48,000 jobs nationally.
V. Analysis
Ms. Anstey asserts that the ALJ erred when she failed to determine that Ms. Anstey met her burden to show that the objective evidence of record showed restrictions to support less than substantial gainful activity. Doc.11 at 6. Ms. Anstey alleges that the ALJ improperly focused on a gap in treatment for Ms. Anstey's impairments, an unknown etiology for Ms. Anstey's pain, and a cruise Ms. Anstey took in April 2015. Doc.11 at 11-12. Finally, Ms. Anstey claims that the ALJ failed to give a medical source opinion from her treating source proper weight. Doc.11 at 11.
A. Whether the ALJ Improperly Focused on a Gap in Ms. Anstey's Treatment When Assessing Her Credibility
The Commissioner's regulations define "symptoms" as the claimant's own description of his or her impairment. 20 C.F.R. §404.1528; 20 C.F.R. §416.928. The ALJ is required to consider all symptoms alleged, and in cases where symptoms are not substantiated by objective medical evidence or where conflicts in the evidence exist, assess the extent to which the claimant's description of his or her symptoms can be deemed credible. 20 C.F.R. §404.1529(a); 20 C.F.R. §416.929(a). In many cases, this determination has a significant impact upon the outcome of a claimant's application, because the ALJ need only account for those symptoms - and the resulting limitations - that are credibly established when formulating his or her RFC assessment. Rutherford v. Barnhart, 399 F.3d 546,554 (3d Cir. 2005).
The regulations describe a two-step process for evaluating symptoms. First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. §404.1529(b); 20 C.F.R. §416.929(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, then the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. §404.1529(b); 20 C.F.R. §416.929(b). Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. §404.1529(c)(1); 20 C.F.R. §416.929(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions due to the symptom alleged can be reasonably be accepted as consistent with objective medical evidence and other evidence of record. 20 C.F.R. §404.1529(c)(4); 20 C.F.R. §416.929(c)(4). However, an ALJ will not reject symptoms about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. §404.1529(c)(3); 20 C.F.R. §416.929(c)(3). Furthermore, the ALJ need not totally accept or totally reject the claimant's statements, and may find all, some, or none, of the alleged symptoms are credible. SSR 96-7p, 1996 WL 374186 at *4. The ALJ may also find that a claimant's allegations are not credible to a certain degree. Id.
The Commissioner's regulations also provide a list of factors that the ALJ should consider when assessing the credibility of a claimant's allegations about his or her symptoms. These factors include the following: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §404.1529(c)(3); 20 C.F.R. §416.929(c)(3).
Ms. Anstey argues that she was forced to make medical treatment decisions within the bounds of her financial constraints, and that her decision to not seek treatment was not because of lack of symptoms and pain. Doc. 11 at 12. Ms. Anstey points to two appointments that document that she had no health insurance. Id. The Commissioner asserts that the ALJ reasonably explained that Ms. Anstey's one-year gap in treatment was inconsistent with her allegations regarding the severity of her symptoms. Doc.12 at 19. The Commission contends that the ALJ considered the gap in her treatment in accordance with 20 C.F.R. §404.1529(c)(3)(v) and 20 C.F.R. §416.929(c)(3)(v). Id.
In her decision, the ALJ indicated that there is a gap in treatment records from June 2014 to June 2015, and that if Ms. Anstey's conditions were as severe as she alleged, a one-year gap in medical treatment would be unreasonable. Tr.14. The ALJ also noted that there are no treatment records from August 1, 2013, the alleged onset date, through February 3, 2014. Id. While this is clearly evidence that should be considered in evaluating Ms. Anstey's subjective complaints of pain, the regulations provide that "the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment." SSR 96-7p. It is well-established that an "ALJ may rely on lack of treatment, or the conservative nature of treatment, to make an adverse credibility finding, but only if the ALJ acknowledges and considers possible explanations for the course of treatment." Wilson v. Colvin, No. 3:13-CV-02401, 2014 WL 4105288, at * 11 (M.D.Pa. Aug.19, 2014). However, the ALJ failed to consider or discuss Ms. Anstey's lack of health insurance in this time frame. On February 3, 2014, Dr. Gillick explained that because Ms. Anstey does not have health insurance, she could not pursue physical therapy, nor could she undergo an MRI. Tr.258. On May 5, 2014, Dr. Gillick again noted that Ms. Anstey lacked health insurance. Tr.259.
It is unclear in the record as to how long Ms. Anstey was without health insurance and the ALJ did not inquire as to Ms. Anstey's reasons for not continuing medical treatment throughout the noted gaps, nor did the ALJ explain in her decision that Ms. Anstey did not have health insurance in at least from February 2014 through May 2014. Instead, the ALJ indicated that Ms. Anstey's lack of medical treatment undermined her credibility, and caused the ALJ to cast doubt upon the severity of her conditions. Tr. 14. Because the ALJ failed to consider the information available in the record that may have explained Ms. Anstey's infrequent or irregular medical visits or failure to seek medical treatment in the noted gaps, drawing an inference and rejecting Ms. Anstey's credibility on the ground of her treatment course was improper. Concluding that Ms. Anstey's gaps in treatment were due to a lack of debilitating impairment is only one of several plausible inferences, and the ALJ was not entitled to rely on this inference without considering Ms. Anstey's explanation for her lack of treatment. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir.2000) ("[A]n ALJ may not make 'speculative inferences from medical reports' ") (quoting Plummer, 186 F.3d at 429).
Health insurance was raised at the hearing when Ms. Anstey explained that she was waiting for approval from her insurance in order to receive Botox injections for her muscle spasms. Tr.57-58. --------
We acknowledge that "[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result," Moua v. Colvin, 541 F.App'x. 794, 798 (10th Cir. 2013) (quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)), and that "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009). In this context, however, it is clear that:
Cases considering the harmless error doctrine in the context of social security appeals also strongly caution that harmless error analysis should be applied sparingly, and only in extraordinary cases. Thus, "we apply harmless error analysis cautiously in the administrative review setting." Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir.2005). It is also clear that, "[a] court cannot excuse the denial of a mandatory procedural protection simply because, as the Commissioner urges, there is sufficient evidence in the record for the ALJ to discount [some evidence] and, thus, a different outcome on remand is unlikely. '[A] procedural error is not made harmless simply because [the aggrieved party] appears to have had little chance of success on the merits anyway.' Mazaleski v. Treusdell, 562 F.2d 701, 719 n. 41; see also Ingalls Shipbuilding, Inc. v. Dir., Office of Workers' Comp. Programs, 102 F.3d 1385, 1390 (5th Cir.1996)." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546 (6th Cir.2004). Furthermore, "the district court may not create post-hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the Commissioner's decision itself. See, e.g., Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004); SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943)." Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir.2005).Peak v. Colvin, No. 1:12-CV-1224, 2014 WL 888494, at *5 (M.D. Pa. Mar. 6, 2014).
In this case, the ALJ's credibility determination cannot be deemed harmless error. The Third Circuit Court of Appeals has acknowledged that "[c]omplaints of disabling back pain are the most difficult types of claims to resolve with any degree of certainty." Taybron v. Harris, 667 F.2d 412, 415 (3d Cir.1981) (citations omitted). "Disability claims based on pain are also difficult to resolve because proof of pain is often made by means of subjective evidence." Id. While it is true that Ms. Anstey received conservative care and examination findings did not suggest more aggressive treatment, we cannot say that the ALJ's credibility determination is supported by substantial evidence. The purpose of the credibility evaluation is to help the ALJ assess a claimant's RFC; thus, the ALJ's credibility determination and RFC assessment are inherently intertwined. Dr. Gillick, Ms. Anstey's treating physician, found the functional limitations assessed consistent with her impairments and Dr. Murray, the consultative examining physician, opined similar limitations and restrictions. Tr.251-252; 255-257. The ALJ departed from these opined limitations, and suggested Ms. Anstey lacked credibility. In view of the importance of credibility, especially in cases of alleged disability due to back pain and the opinions of Drs. Gillick and Murray, we are unable to say that the ALJ's credibility determination can be considered harmless error.
Accordingly, we recommend that the Court vacate the decision denying Ms. Anstey's claim and remand the case to the Commissioner. Given that conclusion, we do not address Ms. Anstey's remaining arguments. Burns, 156 F. Supp.3d at 598 (declining to address other allegations or error because "[a] remand may produce different results on these claims, making discussion of them moot"). Although we ultimately find that remand is necessary, nothing in our decision is meant to suggest what the result should be on remand. Rather, that task remains the duty and province of the ALJ on remand.
VI. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Ms. Anstey's request for a new administrative hearing be GRANTED and the Commissioner's final decision denying Ms. Anstey's claims be VACATED as follows:
1. This case should be remanded to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g); and,The parties are further placed on notice that pursuant to Local Rule 72.3:
2. Final judgment should be entered in favor of Ms. Anstey and against the Commissioner of Social Security.
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Submitted April 16, 2018
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge