Opinion
CASE NO. 3:18-cv-01619-MEM-GBC
10-23-2020
MAXAZINA BROWN, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for decision. Maxazina Brown ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. Legal Standards of Review
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to 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); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920 (effective from August 24, 2012, to present). The process requires an Administrative Law Judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)).
II. Procedural History
On August 26, 2014, Plaintiff filed an application for supplemental security income (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381, with an alleged disability onset date of June 1, 2014. (Tr. 26, 84). Plaintiff alleged disability due to high blood pressure, depression, migraine headaches, and pain from the legs, neck and back. (Tr. 84). On September 9, 2016, the ALJ held a hearing where Plaintiff proceeded without representation and a Vocational Expert ("VE") testified. (Tr. 39-83). On December 29, 2016, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 23-38). Plaintiff sought review of the decision, which the Appeals Council denied on November 18, 2017, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 14-20).
On August 15, 2018, Plaintiff, proceeding pro se, filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On October 29, 2018, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On June 12, 2019, an attorney was appointed to represent Plaintiff. (Doc. 15). On January 15, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 25 ("Pl. Br.")). On March 16, 2020, Defendant filed a brief in response. (Doc. 28 ("Def. Br.")). On May 31, 2018, Plaintiff filed a reply. (Doc. 14 (Reply)).
Plaintiff was granted extensions of time to file this current civil action. (Tr. 1-13).
III. Issues on Appeal
The issues before the court is whether: (1) substantial evidence supports the ALJ's omission of non-exertional limitations in the RFC despite the existence of mental impairments and enumerated non-exertional limitations in the record; (2) the ALJ fulfilled the duty to develop the record in light of Plaintiff's unrepresented status; (3) the ALJ erred in finding Plaintiff's fibromyalgia was not a severe impairment; (4) the ALJ erred in overemphasizing Plaintiff's smoking as justification for denial of benefits without explaining how smoking would impact the RFC; (5) the ALJ erred in allocating disproportionate weight to a non-medical agency interviewer and substantively adopting the RFC from the single decision make at the initial level who was not a medical source. Pl. Br. at 7-8, 10-24.
IV. Analysis
A. Duty to Develop When Claimant is Unrepresented
The Court finds there is "a showing of clear prejudice or unfairness at the administrative hearing" that stemmed from Plaintiff's unrepresented status. See Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); Marks v. Saul, No. 1:20-CV-194, 2020 WL 3052743, at *3-4 (M.D. Pa. May 18, 2020), report and recommendation adopted, No. CV 1:20-194, 2020 WL 3051056 (M.D. Pa. June 8, 2020). Plaintiff's appointed counsel submits:
During her testimony, [Plaintiff] identified treatment by [Plaintiff[ had notified a number of providers, by name and office location, and per the records noted as received as part of the decision, it is clear that many of the records noted for treatment by [Plaintiff] had not been received by the hearing office of the ALJ, or that there were records for more recent treatment which had not been requested or received and the ALJ should have taken steps to obtain these records. (Admin Tr. 37-38, 49-83 and 175). The ALJ should have made a greater effort to try to develop the record and obtain these records, particularly in light of the indication from [Plaintiff] that these providers had treater her for a number of conditions, including her depression, migraines, fibromyalgia, and diagnosed lupus and rheumatoid arthritis. As [Plaintiff] was unrepresented in this matter, despite her attempts to obtain legal counsel, the ALJ and SSA should have offered more assistance in trying to help obtain these additional medical records, many of which were clearly not submitted at the time of the initial claim, or thereafter.Pl. Br. at 19-20. The Court agrees with Plaintiff. Regarding the duties of an ALJ towards an unrepresented claimant, the Third Circuit in Vivaritas v. Comm'r of Soc. Sec. instructs:
Per the transcript of testimony, the ALJ spent most of the questioning trying to determine where [Plaintiff] treated, and he asked very little about [Plaintiff's] impairments, including those he noted to be both severe and non-severe, and therefore, the ALJ did not adequately develop the record in this case in terms of [Plaintiff's] own testimony regarding her impairments and limitations she had related thereto. The ALJ indicated several times during the hearing that he would get updated record after the hearing to consider as part of the claim. Unfortunately, the ALJ did not obtain records from many of the providers referenced by [Plaintiff] during the hearing, and it appears that the vast majority of the records in this matter were acquired as part of the initial claim.
Though a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to counsel at such a hearing. 42 U.S.C. § 406; 20 C.F.R. § 404.1705. The claimant must be given notice of the right to counsel and can waive this right only by a knowing and intelligent waiver. See, e.g., Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982). Moreover, where a claimant is pro se, the ALJ has a duty to help the claimant develop the administrative record and "must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (internal quotations omitted).Although an ALJ may deny a pro se claimant benefits, it is appropriate for a reviewing court to remand a case if there is "a showing of clear prejudice or unfairness at the administrative hearing." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); see also Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980) ("[I]f it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand, or reversal."). A determination of whether the claimant waived the right to counsel knowingly and intelligently determines who has the burden of demonstrating whether remand is appropriate. As the Court of Appeals for the
Seventh Circuit has explained, "[i]f the ALJ does not obtain a valid waiver of counsel, the burden is on the Commissioner to show the ALJ adequately developed the record." Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007).Vivaritas v. Comm'r of Soc. Sec., 264 F. App'x 155, 157-58 (3d Cir. 2008). To evaluate the severity of a claimant's symptoms, the ALJ must consider the following factors in totality: (1) the extent of daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication; (5) treatment other than medication for the symptoms; (6) measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. See 20 C.F.R. §§ 404.1529, 416.929 (version effective from June 13, 2011 to March 26, 2017); SSR 16-3p (applicable on March 28, 2016). The incomplete development of the longitudinal record regarding the extent of Plaintiff's symptoms, the omission of medical records referenced by Plaintiff, and the ALJ's failure during the hearing to gather information regarding the severity, persistence, intensity, and frequency of the symptoms amounts to prejudicial error resulting from the lack of representation. See e.g., Gleason v. Colvin, 152 F. Supp. 3d 364, 381-88 (M.D. Pa. 2015) (finding prejudicial error where record omitted probative medical evidence regarding psychiatric hospitalization of extended duration); Richards v. Colvin, 223 F. Supp. 3d 296, 307-08 (M.D. Pa. 2016).
On March 24, 2016, the agency issued a notice correcting SSR 16-3p's effective date to March 28, 2016. SSR 16-3p, 81 Fed. Reg. 15776 (March 24, 2016). Then, on October 25, 2017, the agency republished SSR 16-3p, stating that it changed the SSR's "terminology from 'effective date' to 'applicable date' based on guidance from the Office of the Federal Register," and also "updated citations to reflect the revised regulations that became effective on March 27, 2017," but that the "[r]uling [was] otherwise unchanged." SSR 16-3p, 82 Fed. Reg. at 49462.
The ALJ abused his discretion in failing to acquire a consultative evaluation. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (effective March 26, 2012, to present); See Miller v. Berryhill, No. 3:17CV1452, 2019 WL 3776662, at *6-7 (M.D. Pa. Aug. 12, 2019); Harlan v. Astrue, 510 F. App'x 708, 712 (10th Cir. 2013); Richards v. Colvin, 223 F. Supp. 3d 296, 307-08 (M.D. Pa. 2016). The Court is persuaded by the Tenth Circuit's clarification of sections 404.1519a(b), 416.919a(b) explaining:
"[W]here the medical evidence in the record is inconclusive, a consultative examination is often required for proper resolution of a disability claim." Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir.1997) (citation omitted); see also 20 C.F.R. §§ 404.1519a(b) (stating agency may purchase consultative examination if evidence is insufficient for a decision), 416.919a(b) (same). In other words, after the claimant satisfies her burden to show a reasonable possibility of a severe impairment, the ALJ bears responsibility to order a consultative examination if it is necessary to resolve the impairment issue. Hawkins, 113 F.3d at 1167. But the ALJ "has broad latitude in ordering a consultative examination." Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 778 (10th Cir.1990); see also Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir.1993) (stating ALJ has discretion to order consultative examination).Harlan v. Astrue, 510 F. App'x 708, 712 (10th Cir. 2013) (emphasis added). A consultative evaluation is necessary in this instance to confirm medical diagnosis and address inconsistencies in the evidence. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b); See Miller v. Berryhill, No. 3:17CV1452, 2019 WL 3776662, at *6-7 (M.D. Pa. Aug. 12, 2019); Harlan v. Astrue, 510 F. App'x 708, 712 (10th Cir. 2013). There is not a single medical opinion in the record regarding Plaintiff's mental and physical work-based limitations. The necessity of expert opinion evidence is more apparent upon review of the hearing with Plaintiff being unable to recall necessary details to aid in the proper assessment of the frequency and severity of the multiple symptoms demonstrated throughout the record. (Tr. 49-76). It is unclear from the ALJ decision, hearing, and medical record whether anxiety is a medically determinable impairment, the ALJ's overemphasis on a record regarding Plaintiff's ability to walk while omitting records indicating Plaintiff's inability to walk demonstrates inconsistencies in the evidence that need to be evaluated in light of the complex diagnosis, and substantial evidence does not support the ALJ's conclusion that lupus is not medically determinable impairment.
Social Security Ruling 12-2p notes that fibromyalgia can present "manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, [and] anxiety disorder. Social Security Ruling, SSR 12-2p; Titles II and XVI: Evaluation of Fibromyalgia, 77 FR 43640-01.
The ALJ did not fulfill his duty to develop the record with regard to Plaintiff's mental impairments. See Martinez v. Colvin, No. CIV.A. 13-5415, 2015 WL 4876284, at *7-8, 10-11 (E.D. Pa. Aug. 12, 2015). "When evidence in the record suggests a possible mental impairment, the ALJ 'must determine the severity of the mental impairment(s) by using the ratings of functional limitations and determine whether the impairment meets or is equivalent in severity to a listed mental disorder.'" Martinez v. Colvin, No. CIV.A. 13-5415, 2015 WL 4876284, at *7-8 (E.D. Pa. Aug. 12, 2015) (quoting Schwartz v. Halter, 134 F.Supp.2d 640, 657 (E.D.Pa.2001)); 20 C.F.R. § 404.1520(d) (effective from August 24, 2012 to present). Although the Third Circuit has explained that section 421(h) does not apply to decisions made by an ALJ, the "ALJ was obligated to investigate the claimant's mental impairments. . . . This obligation is heightened when the Commissioner fails, as he did here, to satisfy his obligation under 42 U.S.C. § 421(h) and 20 C.F.R. § 404.1520a to have a qualified psychiatrist or psychologist evaluate [the plaintiff's] claim during the initial or reconsideration stage." Plummer v. Apfel, 186 F.3d 422, 434-35 (3d Cir. 1999); 42 U.S.C. § 421(h); 20 C.F.R. § 404.1520a(e)(1); see also Cartagena v. Comm'r of Soc. Sec., No. 2:10-CV-05712-WJM, 2012 WL 1161554, at *2-3 (D.N.J. Apr. 9, 2012) (enumerating actions taken by ALJ to meet the heightened requirement to develop for a pro se claimant); Rosa v. Colvin, 956 F. Supp. 2d 617, 623-24 (E.D. Pa. 2013) (enumerating factors which give rise to an ALJ's heightened duty to develop the record). While Plummer explains the development requirement could be satisfied "perhaps by soliciting testimony directly from the claimant" (id. at 434), in this instance, the testimony solicited from Plaintiff was insufficient. During the hearing, Plaintiff indicated that she was prescribed a medication for anxiety to address her chest pain, however, was unable to recall the name of the medication. (Tr. 69-70). The ALJ responded he would "add that to the list," but did not inquire about the frequency of the anxiety symptoms, the effectiveness of the medication, and whether she took any other interventions to alleviate the anxiety symptoms. (Tr. 69). A record in February 2016 noted Plaintiff presented as slightly anxious (Tr. 409) and a March 2016 record noted Plaintiff had a history of anxiety (Tr. 475). In May 2016, Plaintiff reported experiencing worsening and constant pain, fatigue, and anxiety, and Dr. Maryn Valdez noted that Plaintiff's shortness of breath "sounds anxiety in origin." (Tr. 748-49). Records throughout 2016 indicate an emergency hospital visit for chest pain, recurrent chest pain, with some doctors indicating such was pleuritic and related to an autoimmune disorder and others speculating the symptom was due to anxiety. (Tr. 748-49, 777, 782, 786-87, 806-07, 817-25). While the ALJ once addressed depression as non-severe (Tr. 29), the ALJ does not mention anxiety in the decision. There "was a clear need for further development of the record regarding the limitations that stemmed from Plaintiff's [menta impairments]." See Winters v. Colvin, No. CV 09-460-CJB, 2013 WL 5956246, at *15-16 (D. Del. Nov. 7, 2013); Plummer, 186 F.3d at 434.
Washington v. Colvin, No. 2:12-CV-6778-CDJ, 2014 WL 2777415, at *2 (E.D. Pa. June 19, 2014):
The plain language of § 421(h) expressly limits its application to § § 421(a), (c), (g), and (i). As Judge Reuter pointed out, administrative hearings before ALJs are conducted under § 421(d) and are therefore exempt from the requirements of § 421(h). Plummer v. Apfel, 186 F.3d 422, 433 (3d Cir.1999) ("Because 42 U.S.C. § 421(d), which covers hearings before an ALJ, is excluded from § 421(h)'s purview, an ALJ is not required to employ the assistance of a qualified psychiatrist or psychologist in making an initial determination of mental impairment.").
In Plummer v. Apfel, the applicable version of section 404.1520a as of the time of the relevant adjudicatory decision of April 29, 1995, merely reiterated the requirements outlined in 42 U.S.C. § 421(h). The version of section 404.1520a(e)(1) applicable to this case is substantively similar to the regulatory language referenced in Plummer, and the requirements in section 421(h) remain the same. See Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999); 42 U.S.C. § 421(h); 50 FR 35065, Aug. 28, 1985 (regulatory history regarding section 404.1520a).
In evaluating the severity of Plaintiff's impairments regarding walking, the ALJ cited a 2014 record wherein Dr. Peter Viriassov, D.O., wrote, "Please note I have observed [Plaintiff] walk through the room and the hallway without any difficulty. The lower extremity pain and weakness that she described previously appears to be completely resolved. When she returns to the room she complains of significant pain once again." (Tr. 31). However, the ALJ omits relevant details that this medical record notes Plaintiff seemed intoxicated and had an altered mental status, was there following a motor vehicle accident, and previously refused to be seen by a physician four times. (Tr. 232-33). Additionally, the ALJ omitted any discussion of Plaintiff's walking and mobility-related symptoms within the context of the fibromyalgia diagnosis. According to Ruling 12-2p, "[t]he pain may fluctuate in intensity and may not always be present." Social Security Ruling, SSR 12-2p; Titles II and XVI: Evaluation of Fibromyalgia, 77 FR 43640-01. The ALJ's discussion of the evidence omits instances when Plaintiff's in debilitating pain and the ALJ fails to consider Plaintiff's medical visits coincide with times when her symptoms are less severe in order to enable her to make it to the medical examination. For example: (1) in January 2016, Plaintiff reported a burning sensation that was exacerbated with walking and in a separate record in January 2016 demonstrated a slow normal gait and ability to walk on heels and toes without difficulty; (2) in February 2016, Plaintiff indicated she would lay in bed all day unable to walk due to the pain, and (3) in March 2016, Plaintiff was unable to walk for a stress test. (Tr. 471, 495, 501, 549, 661). A medical expert's opinion could add clarity to possible contradictions such as these and explain whether the fluctuation of symptoms is consistent with the diagnosis.
Additionally, the complex rheumatology tests would benefit from expert medical opinion. While the pain symptoms of fibromyalgia overlap with those of Lupus, the testing for these autoimmune diseases is distinct. Compare SSR 12-2p (discussing criteria for diagnosing Fibromyalgia with Listing 114.00 Immune System Disorders, 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (discussing listing criteria for Systemic lupus erythematosus). In March 2016 Dr. Sowmya Surapaneni wrote:
I have not noticed any significant inflammation on exam today, but she was diffusely tender in several of the small joints of her hands. In fact, she was diffusely tender to touch all over her body. I do think putting her symptoms of ongoing joint pain and muscle pain along with Raynaud's, pleuritic chest pain, fatigue, and along with positive serologies, I do think she most likely has some kind of underlying connective tissue disease, which could very well be lupus too with positive ANA, Smith, pleuritis, and arthritis. At this point, I have discussed with her at length regarding the disease course of autoimmune diseases and would like to complete the workup by checking rheumatoid factor, CCP, and would also like to check beta 2 glycoprotein antibodies along with RPR. I do think she has a huge component of fibromyalgia too that is causing her ongoing pain and advised her regarding continuing the current medications.(Tr. 469). In August 2016, after additional testing, Dr. Surapaneni noted bloodwork revealed Lupus anticoagulant negative; rheumatoid factor, CCP negative; ANA positive; Smith antibody positive; RNP positive, and cardiolipin negative. (Tr. 761). Notwithstanding a negative lupus anticoagulant test, Dr. Surapaneni still assessed Plaintiff with "lupus manifesting as positive ANA, pleuritis, Smith antibodies, arthritis, and myalgia" and noted Plaintiff's history of intermittent leukopenia "is again possibly from lupus." (Tr. 761). These findings support Plaintiff's argument that Lupus is a medically determinable impairment. In light of resulting prejudice from the lack of a medical opinion and lack of representation during the hearing, the Court recommends remand.
B. ALJ's Reliance on Single Decision Maker's Residual Functional Capacity
Determination
Plaintiff correctly observes there is no consultative examination or medical expert opinions in the record, "nor anything prepared from an acceptable medical source." Pl. Br. at 23. Plaintiff argues the ALJ failed to consider her condition has worsened since her claim was filed and "therefore, the RFC from the single decision maker ["SDM"] is no longer a valid representation of [Plaintiff's] RFC . . . [and the] ALJ's RFC is almost identical to the one set forth in the disability determination transmittal, prepared by the [SDM] in this case." Pl. Br. at 23 (citing to Tr. 88). In finding grounds for remand, the Court is persuaded by Glahn v. Berryhill, wherein the court remand reasoning:
[R]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant. . . .Glahn v. Berryhill, No. 3:16-CV-00592, 2018 WL 3233367, at *13-14 (M.D. Pa. Mar. 29, 2018), report and recommendation adopted, No. 3:16-CV-592, 2018 WL 3217503 (M.D. Pa. July 2, 2018); accord Yorkus v. Astrue, No. CIV.A. 10-2197, 2011 WL 7400189, at *3-6 (E.D. Pa. Feb. 28, 2011); see also Counihan v. Saul, No. CV 19-4884, 2020 WL 5405974, at *5 (E.D. Pa. Sept. 9, 2020). The Western District Court of New York in Andrisani v. Comm'r of Soc. Sec. explained in detail:
Furthermore, the Court notes that many of the limitations the ALJ provided for in the RFC are quite similar to the limitations assessed by the single decision-maker. The opinion of an agency single decision-maker does not constitute medical opinion evidence at the appeal levels. Yorkus v. Astrue, 2011 WL 7400189 (E.D. Pa. 2011). A single decision-maker is not an acceptable medical source, and therefore, cannot give a medical opinion or establish the existence of a medically determinable impairment. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
"Under the single decision-maker model, a single decision-maker [would] make the initial determination with assistance from medical or psychological consultants, where appropriate. This individual [would] make the disability determination and determine whether the other conditions for entitlement to benefits based on disability [had been] met." Barbara Samuels and Paul M. Ryther, Single decision-maker at application, 1 Soc. Sec. Disab. Claims Prac. & Proc. § 15:45 (2nd ed. 2003 and 2018 Supp.). Where the model operated, the Commissioner understood that an SDM "is not a medical professional of any stripe, and a finding from such an individual is entitled to no weight as a medical opinion, or to consideration as evidence from other non-medical sources." Foxx v. Astrue, No. CIV.A. 08-00403-KD-B, 2009 WL 2899048, at *7 (S.D. Ala. Sept. 3, 2009) (internal quotation marks and citations omitted). Because SDMs were designed and tested for initial claim determinations, they were not to be "afforded any evidentiary weight at the administrative hearing level." Hart v. Astrue, 32 F. Supp. 3d 227, 237 (N.D.N.Y. 2012). Where ALJs mistakenly relied on SDM opinions anyway, the question of
remand depended on the extent to which the rest of the record independently would have led the ALJ to the same RFC determination. See Tankisi v. Comm'r, 521 Fed. App'x 29, 35 (2d Cir. 2013) (summary order). Concerns about an indeterminate level of intertwining between an SDM's opinion and other medical evidence weigh in favor of remand. See Yorkus v. Astrue, No. CIV.A. 10-2197, 2011 WL 7400189, at *5 (E.D. Pa. Feb. 28, 2011) ("While the ALJ did review Plaintiff's medical records and treatment notes in making his determination, we cannot determine if he would have come to the same result that he did if he had initially disregarded the RFC assessment."). Intertwining is the problem here. . . . The ALJ further appears to have used the SDM's opinion as a template or an anchor for a light-work RFC, with modifications to be added based on available medical evidence.Andrisani v. Comm'r of Soc. Sec., No. 17-CV-433 HBS, 2019 WL 1292233, at *3-4 (W.D.N.Y. Mar. 21, 2019). Based on the foregoing, the undersigned recommends remand.
Under these circumstances, the Court cannot tell how much influence the SDM's opinion had over the ALJ's analysis. Cf. Miller v. Astrue, No. 1:10CV1028-WC, 2012 WL 174589, at *3 (M.D. Ala. Jan. 23, 2012) (SDM opinion that was "deeply intertwined" with the ultimate RFC determination required remand). Remand is appropriate to eliminate the ambiguity.
C. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011); Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018). /// /// ///
VI. Recommendation
The undersigned recommends the Court vacate the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and remand the case for further proceedings. Accordingly, it is HEREBY RECOMMENDED: 1. The decision of the Commissioner of Social Security denying Plaintiff's benefits under the Act be vacated and the case remanded to the Commissioner of Social Security to develop the record fully, conduct a new administrative hearing and appropriately evaluate the evidence. 2. The Clerk of Court close this case. The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Dated: October 23, 2020
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE